Tangle - The Supreme Court's abortion pill ruling.

Starting point is 00:00:00 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

Starting point is 00:01:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the Supreme Court's Mifepristone ruling. That's one of the drugs in the common abortion pill. We've covered this case a couple of times now, but we finally got the Supreme Court's ruling, so we are going to break down exactly what happened. And I'm going to share a little bit of my opinion along with some of what we learned from the majority opinion in this case.

Starting point is 00:01:51 Before we jump in, though, I want to give a couple quick heads up. First of all, thank you to the 500, 600 or so of you who went and subscribed to our new Undecideds podcast channel. A quick reminder that we are trying to get the Undecideds up on its own independent channel. Our hope is to not have to post the Undecided episodes here on our Tangle podcast channel because we just want to have it separate as a little limited series. But the only way we can do that is if enough of you guys go and subscribe to that channel so we know you're actually seeing the podcast when it comes out. So if you want to take five seconds really quick and just type in The Undecideds into whatever podcast platform you listen to and then follow or subscribe to the channel there, that would be

Starting point is 00:02:33 super appreciated. Second, of course, I want to let you know that we have a new Sunday podcast out dropped yesterday in case you missed it. So scroll back one day on this channel and you'll find the Sunday podcast there. And Ari and I had a good time chatting about one of his ghost stories, which was actually pretty interesting, though I kind of criticized the ending a little bit. And then we got to talk Project 2025 right after I interviewed somebody from the organization and some of the inflation coverage, which I think is a pretty important topic. All right, with that out of the way, we're going to jump into today's pods. I'm going to send it over to John to do that, and I'll be back here for my take.

Starting point is 00:03:22 Thank you, Isaac, and welcome, everybody. Hope y'all had a great weekend. Here are your quick hits for today. First up, the Supreme Court overturned a Trump-era ban on bump stocks, gun attachments allowing semi-automatic weapons to fire at a rate similar to fully automatic firearms. Number two, the Justice Department said Attorney General Merrick Garland won't be prosecuted for contempt of Congress after he refused to turn over audio recordings of President Joe Biden's classified documents interview. Number three, the Israeli military announced a tactical pause in fighting to better facilitate aid trucks trying to access Gaza's north-south highway. Separately, the U.S. imposed sanctions on non-governmental Israeli groups thwarting Gaza aid deliveries, and Prime Minister Benjamin Netanyahu dissolved Israel's war cabinet.

Starting point is 00:04:08 Number four, more than 260 million Americans are expected to experience temperatures exceeding 90 degrees by this Friday, with many heat indices expected to top 100 degrees. Separately, a fast-moving wildfire is spreading north of Los Angeles, with over 14,000 acres already burned. And number five, United States Surgeon General Dr. Vivek Murthy said he was going to push for a warning label on abortion in this country, the most consequential since Roe v. Wade was overturned two years ago. Now, this case concerns the availability and access to the abortion pill Mifepristone.

Starting point is 00:05:02 Just moments ago, the court ruling unanimously to maintain availability. The matter was brought before the high court by a group of anti-abortion doctors, challenging a Food and Drug Administration decision to expand access to the pill. In 2016, the FDA began allowing women to take Mifepristone between seven and ten weeks of pregnancy. In 2021, the agency said women no longer needed to see a doctor in person to get the pill. It also allowed pharmacies to ship the drug nationwide. The doctors argued these moves ignored safety concerns about using the pill later in pregnancy and would force them to treat resulting complications. On Thursday, the court unanimously rejected a

Starting point is 00:05:47 lawsuit brought by pro-life medical groups and doctors that aimed to restrict access to mifepristone, a drug commonly used in medical abortions. The justices did not rule on the merits of the arguments, instead dismissing the case because the plaintiffs lacked standing or legal right to sue. In 2022, a group led by the Alliance Defending Freedom filed a lawsuit in Texas alleging the Food and Drug Administration both lacked the authority to approve Mifepristone for sale in the U.S. and failed to properly evaluate the drug's safety and effectiveness. In April of 2023, U.S. District Judge Matthew Kazmarek sided with the plaintiffs, In April of 2023, U.S. District Judge Matthew Kazmarek sided with the plaintiffs, suspending the FDA's approval of mifepristone and ruling that the agency's initial approval in 2000, as well as its authorizations of expanded access in 2016 and 2021, were unlawful.

Starting point is 00:06:46 Upon appeal, the Fifth U.S. Circuit Court of Appeals upheld the FDA's initial authorization but backed Kazmarek's decision to roll back expanded access to the drug. Then the Supreme Court paused the lower court's ruling and agreed to hear the case, Food and Drug Administration v. Alliance for Hippocratic Medicine, in March. Mifepristone remained available while the court heard arguments and deliberated. Since 2000, more than 6 million patients in the U.S. have taken mifepristone, and 63% of U.S. abortions in 2023 were medical abortions. As of 2022, the FDA reported 32 deaths related to the drug. If the Supreme Court had upheld mifepristone restrictions, some health care providers said they would have prescribed patients seeking a medical abortion misoprostol alone, traditionally part of a two-drug regimen alongside Mifepristone, potentially limiting the procedure's effectiveness. You can check out our previous coverage on the cases in links in today's episode

Starting point is 00:07:30 description. The court's 9-0 decision firmly rejected the plaintiff's core argument to establish their standing, that they could be harmed if made to care for patients who took Mifepristone prescribed by another doctor. Writing for the court, Justice Brett Kavanaugh said the FDA's approval did not injure the plaintiffs directly and they were not personally required to prescribe the drug. Under Article 3 of the Constitution, a plaintiff's desire to make a drug less available for others does not establish standing to sue, Kavanaugh wrote, adding that the challengers did not offer a single example of their scenario occurring. The court also found that other potential harms caused by Mifepristone access to anti-abortion doctors, such as increased likelihood of being sued and increased insurance costs,

Starting point is 00:08:13 were too speculative or otherwise attenuated to establish standing. Pro-choice advocates expressed relief at the ruling but warned that further challenges were coming. This may be a temporary reprieve as other opponents of abortion access are waiting in the wings to bring another challenge to Mifepristone, said Fatima Grossgraves, president and CEO of the National Women's Law Center. Erin Hawley, lead counsel for the plaintiffs, said the outcome was disappointing but still offered hope for the pro-life side. The Supreme Court was crystal clear that pro-life doctors do have federal conscious protections, even in emergency situations, Hawley said.

Starting point is 00:08:49 So that's a huge win for the pro-life cause. The Supreme Court ruling sends the case back to the lower courts. Three states, Idaho, Kansas, and Missouri, also joined the case earlier this year and are likely to remain involved. Since the Supreme Court only specified that doctors lacked standing, these states could still argue they have a right to sue over Mipha-Pristone's regulation. Today, we're going to share arguments from the left and the right about the court's decision, and then Isaac's take. We'll be right back after this quick commercial break. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis

Starting point is 00:09:37 Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease.

Starting point is 00:09:57 Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada

Starting point is 00:10:16 for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca. Alright, first up, let's start with what the left is saying. The left is relieved by the decisive ruling but alarmed that the case reached the Supreme Court. Some worry that access to medical abortion will be in jeopardy if Trump wins a second term.

Starting point is 00:10:45 Others say the court sent a clear message that the lower courts went too far. The New York Daily News editorial board wrote, The Supreme Court averts disaster with the Mephepristone ruling. This case should never have gotten so far. A divided high court's unanimity here makes clear just how ridiculous this effort was, particularly since the court never gets above the fundamental issue of standing. Of course, the plaintiffs here, doctors who maintain they suffered practical and personal hypothetical injuries from having to treat patients suffering

Starting point is 00:11:14 from the exceedingly rare complications of mifepristone, had no right to challenge this federal regulation, the board said. Any first-year law student could have answered that question right on the exam, yet this had to go up to the Supreme Court for the simple reason that the plaintiffs could rely on sympathetic lower court judges to move things along. All the legal and procedural questions around this case, while worth dissecting, shouldn't obscure the base reality of what happened here. A group of dark-money-funded conservative doctors attempted to upend one of the most reliable tools for abortion access in this country, the board wrote. While we're happy that the court reached the decision it did, we can't commend them too much given that they unleashed this in the first place through their

Starting point is 00:11:53 ideologically driven overturn of Roe v. Wade, including the votes of several justices who had said in their confirmation hearings that they viewed it as settled law. In Slate, Reva Siegel and Mary Ziegler argued the court just created a roadmap for Trump to ban abortion nationwide. The decision rejecting standing still allows the anti-abortion movement to renew its challenges to the FDA's authority, continue its efforts to reinvent the 19th century Comstock Act as a national ban on abortion, and employ conscious objections to block access to health care, Siegel and Ziegler said. In alliance, the court expresses no concern about the impact of a health care refusal on patients, even when those patients face life-threatening medical emergencies.

Starting point is 00:12:35 Instead of explaining that institutions will coordinate respect for the conscience of an objecting doctor with protection for the patient's interest in preserving life or health, as it had in earlier cases, the court reasons as if there were no competing interests to consider. The court seems to anticipate the possibility of a Trump administration that could radically limit access to abortion, Siegel and Ziegler added. Kavanaugh paints a picture very different from the one announced by the court in reversing Roe and, more recently, by Trump on the campaign trail, one in which each state is left to set its own policy and state-by-state resolution de-escalates a polarized conflict. Instead,

Starting point is 00:13:11 Kavanaugh suggests disgruntled abortion opponents can take their concerns to the federal government, which can impose rules rejected by most states and the voters who live in them. In Bloomberg, Noah Feldman said the ruling sends a message about abortion politics. The ruling tells us mostly that in a presidential election year, with the Dobbs decision behind them, the justices didn't want to issue a decision that could have caused a national uproar by further limiting abortion access. It may also be a subtle signal to conservative judges in lower courts, Feldman wrote. The court held that the anti-abortion doctors who brought the case didn't suffer from any concrete injury when the FDA made mifepristone more easily available

Starting point is 00:13:50 by mail and telemedicine. If that sounds sensible and correct, that's because it is. But conservative lower courts had found that standing did exist because it was possible to imagine some of the set circumstances in which one of these doctors might have been harmed. The Supreme Court's conservative justices had the option of agreeing with that logic, but they did not. By holding that there was no standing, the justices were able to throw out the pro-life doctor's case without saying anything whatsoever about Mifepristone or the FDA's approval process, Feldman said. To careful Supreme Court watchers and legal insiders, the ruling is full of meaning and messages. Above all, it can be read as a signal that, having won most of its big-ticket conservative wish list cases during Biden's first term in office, the majority would prefer

Starting point is 00:14:34 not to enrage the general public any further than it already has, especially in an election year. All right, that is it for what the left is saying, which brings us to what the right is saying. The right is disappointed by the ruling, but sees a path to regulating Mefpristone with a Republican president. Some say pro-life advocates will continue to fight against a drug's approval. Others fear the court is allowing potential public backlash to sway their decisions. National Review's editors wrote, the poison pill escapes its day in court. This is a defensible, if disappointing, outcome. The court's job is to resolve disputes between parties with a stake in the case, not to sit as a general reviewer of the legality of all government action. The court recognized properly the imprudence of creating a general right of doctors to sue whenever any loosening of any government regulation could arguably cause injury or illness

Starting point is 00:15:33 that requires medical attention, the editor said. The silver lining in the decision is that the court emphasized without dissent that pro-life doctors cannot be forced to prescribe abortion pills and doctors whose conscious rights were violated would have standing to sue. The Biden administration's persistent strategy of raising standing issues as a defense to illegal executive action was, in this case, rewarded. But what the executive branch giveth, the executive branch can taketh away. A pro-life FDA could reconsider some of its past errors.

Starting point is 00:16:05 A pro-life Justice Department could take seriously the binding nature of federal statutes, thus safeguarding states' ability to protect unborn lives. A restrained judiciary simply means that the real work often falls to the Democratic branches. If that means pro-lifers have to take the long view, the movement has a lot of practice. In the Daily Signal, Thomas Jipping said the court's decision does not mean that Mifepristone is safe. The ruling neither vindicates the safety of Mifepristone nor addresses whether it should be available. It only shows the limitations of litigation as part of the strategy to protect women and girls from this dangerous drug, Jipping wrote. This decision does not mean that Mifepristone is safe. It isn't. Nor does it mean that the FDA followed a credible and objective decision-making

Starting point is 00:16:51 process. It didn't. This case was about how the FDA made its decisions, not what decisions it made. The litigation brought by these brave and determined plaintiffs, however, has exposed the aggressive abortion agenda of the Obama and Biden administrations and their willingness to put women and girls at greater risk to promote it. Powerful government agencies make decisions and issue regulations that dramatically affect the lives of all Americans, Chipping said. Even though this lawsuit was ultimately unsuccessful in holding the FDA accountable for its reckless decisions,orts to protect women and unborn babies from abortion drugs will continue. In CNN, Kerry Sheffield wondered, is the abortion pill ruling a result of the backlash to Dobbs? I disagree with the court's ruling that these doctors do not have standing.

Starting point is 00:17:37 The fact that this case was successfully litigated by plaintiffs under lower federal courts supports their claim to have standing, Sheffield wrote. But even with its ruling that the plaintiffs lack standing, the Supreme Court could have used the opportunity to offer some discussion of the core issues in its opinion. Instead, the court took a narrow view, clearly unwilling to consider whether chemically-induced abortions for mifepristone pose undue risks to women.

Starting point is 00:18:02 The abortion pill decision raises questions for pro-life activists like myself, who are concerned that the political backlash against the Supreme Court's 2022 Dobbs ruling striking down Roe v. Wade is dissuading the justices from making substantive rulings on important cases of abortion, Sheffield said. When major but controversial legal issues are ignored in favor of issuing narrow rulings on technicalities, it appears that Roberts is letting politics and criticism influence his decision. That would be unfortunate for not just pro-life activists, but all Americans who deserve a court concerned with fidelity to the law rather than mass opinion. And now let's head over to Isaac for his take. All right, that is it for what the right and the left are saying, which brings us

Starting point is 00:18:53 to my take. So, Supreme Court cases are often the most complicated issues that we cover. Naturally, court cases make it to the Supreme Court exactly because they are so fraught, so difficult to resolve, and so complicated that it takes the nine most qualified people on the planet to answer the legal questions at hand. But this was not one of those cases. The first few times we covered this case, I wrote by far the most black and white, straightforward assessment of a case headed to the Supreme Court that I've ever written in Tangle. And what I wrote in April of last year is still relevant today. Judge Kaczmarek is wrong. He has overstepped, bent the law to match his activism, and opened

Starting point is 00:19:36 a can of worms that both undermines the legitimacy of our courts and further pushes the envelope on what politically motivated judges are willing to do in public view. So let me be clear. The plain contours of the argument against Kaczmarek are not just being made by liberals. Conservative writers and pundits assessing this honestly, whether they are the Wall Street Journal editorial board or writers from Reason magazine, concede the obvious. The plaintiffs don't have standing,

Starting point is 00:20:03 the approval is beyond the statute of limitations to be challenged, and Kazmarek ignores decades of precedent on laws like the Comstock Act. In his opinion for the unanimous court, Justice Brett Kavanaugh went through the challengers' claims to standing one by one, making it clear why each argument was too weak. The doctors and medical groups argued that they could be forced to treat women who suffered complications from taking mifepristone, but Kavanaugh explained that there are already laws on the books preventing any doctor from acting against their conscience and noted that the challengers had failed to show a single case where this had happened. Similarly, Kavanaugh shot down the argument that having to treat women suffering complications from mifepristone would divert hospital resources or open up doctors to being sued, calling the link between that and the FDA's

Starting point is 00:20:50 approval process too speculative or otherwise attenuated to qualify as standing. Under that logic, he argued he could sue over any public policy, like emergency room doctors suing over a raised speed limit or trauma surgeons suing over reducing gun control laws. Finally, the court also dismissed the group's claim to associational or organizational standing. In this case, the medical groups tried to sue on behalf of their members, saying that the FDA had impaired their group's ability to provide services and achieve their organizational missions because they had to spend money to oppose the FDA's decisions. They also argued that if their group was not granted standing, then no plaintiff could be,

Starting point is 00:21:34 which the court similarly waived off. In sum, the unanimous decision was a thorough takedown of the challenger's claims, as it should have been. The court did not touch the merits of the argument, so I won't either, other than to say that I think a ruling on the merits would have been similarly lopsided. Kazmarek's ruling was self-evidently extreme and disingenuous, as shown by the way conservative media outlets covered it a year ago. The Wall Street Journal said Kazmarek made, quote, several legal leaps, a classic mealy-mouthed concession that he was ignoring the law. Now that the case is over, we should all be asking how it got this far in the first place, and the answer is as interesting as it is frightening. Repeatedly now, activist groups from the right and the left have been taking cases to little-known

Starting point is 00:22:12 but strongly opinionated federal judges like Kaczmarek in order to make a run at the Supreme Court. These partisan judges are providing back doors to the Supreme Court, clogging up a docket that can't afford to be clogged. This problem is becoming so common it's gotten a name, quote, judge shopping. Like gerrymandering, it's a both-sides issue that seems to be getting worse every year. As for potential solutions, the U.S. Judicial Conference proposed a potential reform in March to randomly assign national injunction cases among districts' judges. That is, a challenger seeking an injunction, which can temporarily pause a law, cannot also get to pick their judge. Even though it caused

Starting point is 00:22:50 quite a bit of controversy, I think this is a sensible response. Whatever the solution is, we clearly need one. The court's 9-0 decision here speaks volumes and should put this issue to bed, but if we want the court to avoid hearing a case like this, we'll have to address the process that left it examining a case it never should have had to deal with in the first place. We'll be right back after this quick break. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural

Starting point is 00:23:29 who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported

Starting point is 00:23:50 across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca. All right, that is it for my take take which brings us to your questions answered this one is from matthew in boston massachusetts matthew said do you know what the percentage is of trans girls relative to all girls in high school girls sports i assume the number would be less than half a

Starting point is 00:24:42 percent but i don't know for sure okay so first all, it's worth saying from the start that we don't even know how many transgender athletes are competing in the NCAA, which would be a much easier figure to track. So I can give you a best guess, mostly because that's all we have for the count of transgender high school athletes, which is guesses. One researcher estimates that of the roughly 225,000 female athletes in the NCAA, about 50 are transgender. If we assume that high school sports have about the same proportion, then that would be one in every 4,500, much less than one half of 1%. That's about 0.02%. But I really don't know if any of that is true. First of all, estimates on the number of transgender adults in the United States vary widely, let alone estimates of high schoolers,

Starting point is 00:25:31 who I imagine would be less likely to self-report. Secondly, the number of transgender female athletes in the NCAA is just an estimate from one researcher. And since most of the sources I found use that same estimate, it's hard to get a wider understanding of what the reality could be. So my best guess is almost as good as yours. But that being said, I think half a percent is probably far larger than what the actual number is.

Starting point is 00:25:55 All right, that is it for my take and your reader question. I'm going to send it back to John for the rest of the newsletter and we'll be back here tomorrow. Have a good one. Thanks, Isaac. And here's your Under the Radar story for today, folks. The United States oversaw a clandestine program in the Philippines to sow doubt about the safety

Starting point is 00:26:17 and efficacy of Sinovac, China's COVID-19 vaccine, according to a new Reuters report. The program to undermine Sinovac, which started under former President Donald Trump and continued into the first months of Joe Biden's presidency, was considered payback for China's efforts to blame Washington for the pandemic. One typical social media post produced by an account run by the U.S. military read, COVID came from China and the vaccine also came from China. Don't trust China. Health experts called the ploy indefensible, saying it put innocent lives at risk in the Philippines, a country that had been hit especially hard by the pandemic. Reuters has this story and there's a link in today's episode

Starting point is 00:26:55 description. All right, next up is our numbers section. The percentage of abortions in the U.S. that were medical abortions in 2001, one year after the FDA approved the first abortion pill, was 6%, according to the Guttmacher Institute. The percentage of abortions in the U.S. that were medical abortions in 2017, one year after the FDA extended the approved use of abortion pills from the first seven weeks of pregnancy to 10 was 39%. The percentage of abortions in the U.S. that were medical abortions in 2023, two years after the FDA allowed abortion pills to be prescribed via telehealth appointments, is 63%. The percentage of medical abortions that result in major health complications

Starting point is 00:27:39 is 0.4% according to a 2023 study in contraception. The percentage of Americans who support requiring an in-person doctor visit to obtain abortion medication is 50%, according to a May 2024 Reuters Ipsos poll. The percentage of Republicans who support requiring an in-person doctor visit to obtain abortion medication is 67%. The percentage of Democrats who support requiring an in-person doctor visit to obtain abortion medication is 67%. The percentage of Democrats who support requiring an in-person doctor visit to obtain abortion medication is 37%. All right, and last but not least, our Have a Nice Day story. Mildred Kirshenbaum recently discovered a glitch in the check-in process at the airport.

Starting point is 00:28:21 All she has to do to cut the line at security is enter her birthday at a self-service machine. She simply put in her two-digit year and an escort arrives to see her through. Since Mildred was born in 1923 and the TSA interprets her birth year of 23 to mean that she is an unaccompanied minor, Mildred has discovered that she and other centurions are getting to cut the line. That's pretty good. Good Morning America has this story, and there's a link in today's episode description. All right, everybody, that is it for today's episode. As always, if you'd like to support our work, please go to readtangle.com and sign up for a membership. And as Isaac said at the top, we have moved our Undecided series to its own page. So if you could, please take a little moment and go and subscribe to that page.

Starting point is 00:29:09 Leave a five-star review. Leave a comment if you can. We need all the support we can get. We really want to get this program off the ground. Anything you can do to help support Tangle and the work we're doing is much appreciated. We'll be right back here tomorrow. For Isaac and the rest of the team, this is John Law signing off. Have a great day, y'all.

Starting point is 00:29:28 Peace. Our podcast is written by me, Isaac Saul, and edited and engineered by John Law. The script is edited by our managing editor, Ari Weitzman, Will Kabak, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager. Thank you.

Tangle - The Supreme Court's abortion pill ruling.

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