The NPR Politics Podcast - Abortion Access May Be On A Fast Track Back To Supreme Court

Episode Date: April 10, 2023

Two federal judges issued contradictory opinions related to a drug used in nearly all U.S. medication abortions last week. The Biden administration has announced its intent to appeal the issue and the issue will likely work its way to the Supreme Court.This episode: White House correspondent Asma Khalid, national political correspondent Mara Liasson, and legal affairs correspondent Nina Totenberg.The podcast is produced by Elena Moore and Casey Morell. It is edited by Eric McDaniel. Our executive producer is Muthoni Muturi. Research and fact-checking by Devin Speak.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Giveaway: npr.org/politicsplusgiveaway Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Ariel in El Paso, Texas. I'm a fitness instructor about to teach an interactive cycling class called The Trip. We ride together in front of a huge movie screen. Trippers, say hello to NPR. Awesome! This podcast was recorded at 12.08 p.m. Eastern Time on Monday, April 10th. Things may have changed by the time you hear this. We'll be a little fitter and a whole lot sweatier. This is amazing. Okay, here's the show. Now that's a great timestamp.

The one and only time I've done a cycling class, I could barely talk. I don't understand how they have so much energy. Maybe they stopped. Hey there, it's the NPR Politics Podcast. I'm Asma Khalid. I cover the White House. I'm Mara Liason, national political correspondent. And I'm Nina Totenberg. I cover the Supreme Court. Today on the show, access to a key abortion medication, mifepristone, is now in limbo after two federal judges on Friday issued two dueling decisions. And Nina, that leaves the country, it leaves people, frankly, in a very confusing situation. So to begin with, can you walk us through what the judges ruled? Well, one judge in Texas ruled that a drug that has been

on the market for over 20 years and reviewed repeatedly by the FDA has to be taken off the market because it's unsafe, he decided. And he decided this, not the FDA. I know of no judicial opinion like that in the last 20 plus years. That's the first thing. Then a different judge in Washington state said that the 18 jurisdictions, the District of Columbia and 17 states that wanted greater access to this drug, he didn't rule in their favor exactly, but he said that certainly the current access must be maintained and improved slightly. So these are two decisions. One is supposed to be nationwide, the Texas judge. The other is supposed to be for 18 jurisdictions. They're in total conflict. And that is the status quo. But this is a huge deal for a lot of other reasons. So help us understand. I mean, my understanding is that medication abortion now accounts for, what, about half of all abortions in the U.S.? More than half. More than half of the abortions in this country are now early-term medication abortions. And the drug

has been proved incredibly safe, safer than Tylenol. So this is a really interesting thing, Nina. The Dobbs decision returned abortion questions to the states. That's not what this is doing. This is, in effect, a national ban on this drug. It's even more than that. So it really is a huge leap for the anti-abortion movement to go from we want states to decide to we want a national ban. And this opinion really does sound like it's headed toward a national ban on abortions. But, you know, even more probably serious in an odd

sort of way is it's also an attack on the regulation of drugs. We have a system in this country that's been there for decades and decades and decades that guarantees the way that drugs have to be tried, proved, go to market, warnings. This drug complied with all of that. And if this drug can be thrown off the market, any drug can be thrown off the market. And the medical profession is in an uproar over this. And that's why this really dovetails two different impulses in the conservative movement. One, obviously, is anti-abortion. But the other is the attack on the regulatory state, the administrative state, that why should unelected experts in agencies like the FDA get to decide these things? Either Congress should or judges, conservative judges that

Republicans appoint, they should decide. So you've really got this is an extremely insurgent decision from a lot of points of view. And to that point, Mara, that is actually the line from President Biden's statement that he issued Friday night that stuck with me. I mean, you know this better than I do that, you know, he's had a long political evolution himself on abortion access. I would say it's not an issue that is necessarily naturally comfortable for him. We've seen the vice president lead on much of the abortion access messaging since the Dobbs decision came down. But on Friday night, the president issued a statement and he said, and I'm quoting here, if this ruling were to stand, then there will be virtually no prescription approved by the FDA that would be

safe from these kinds of political ideological attacks. So I want to understand what happens next, both on the political side, but also on the abortion access question. I mean, because there are these dueling decisions, Nina, if you are in need of this medication over the next week, over the next two weeks, what do you do? Well, you're OK until Friday because Judge Kaczmarek stayed his ruling until Friday. The Biden administration has already said it's appealing. It will appeal to the Fifth Circuit Court of Appeals, which is, I think, the most conservative court in the country. It has 19 Republican appointees and seven Democratic appointees. It has six Trump appointees, and they're very conservative Trump appointees.

So that court in the past has sometimes refused to stay a lower court opinion and has let it go into effect. If it does that, I am positive that the Biden administration will then seek a stay from the Supreme Court of the United States. And that will put the court in a tough position. It's nearing the end of its term. It could grant the stay and hear the case next term. It could grant the stay and hear it this term. Or it could refuse to grant the stay. And I really can't imagine that happening. All right. Well, on that note, let's take a quick break and we'll be back in a moment.

Hey, NPR Politics Plus listeners, don't miss our latest bonus episode. It's a field trip. One of the cool things about the Hill is you can kind of go anywhere. Or some fun stuff, some secret stuff. You get in this tram and you're like, oh, hey, Senator Mitt Romney, hey, Kyrsten Sinema. It's all in a day's work when you cover the Hill. So we're here on the floor of Statuary Hall now.

We're actually really close to where the First Lady sits. And these doors that have numbers on them but no markings. These are the Senate hideaways. Thanks to our NPR Politics Plus supporters who can hear that episode now. And if you're not a supporter, it's easy to sign up at the link in our episode notes. And we're back. And Mara, you know, in light of this abortion news, I've been thinking a lot over the weekend, actually, about what happened in Wisconsin, right? The other week there, the Democrats' preferred candidate for the state Supreme Court walloped her challenger.

It was an 11 point win in Wisconsin. And my understanding is that race was largely about abortion, which raises a couple of key questions for me. One is, I mean, is this abortion issue going to remain a potent political force into 2024? But also, you know, secondly, will there be a growing number of Republicans who say, we've got to figure some middle ground out here. This issue is politically toxic. Yes and yes. The Mifepristone decision just inflamed this debate more. It underlined the fact that Republicans are not looking for middle ground. They are moving forward with pretty sweeping national bans, which is what this decision implied. Or in the case of Wisconsin,

they could have come up with a middle ground. Believe it or not, Roe was a middle ground. Most people want abortions legal, but with restrictions or mostly illegal with exceptions. But instead, the Wisconsin state legislature left on the books an 1849 law that banned all abortions. That gave a huge target to the female Democratic or liberal state Supreme Court candidate. And as you just said, she walloped her challenger with it. In Florida, there's a 15-week ban on abortions, but the legislature there is considering a six-week ban, which the governor, Ron DeSantis, who is considering a presidential run, says he will sign. So, yes, there are a lot of voices in the Republican Party, the Wall Street Journal editorial page saying, please, Republicans, you keep on getting walloped in red states like Kansas or battleground states like Wisconsin.

Can't you please back off and try to find a middle ground on this issue? But so far, they don't have any takers. You know, I was struck by what Republican lawmaker Nancy Mace told Caitlin Collins on CNN this morning. This is an issue that Republicans have been largely on the wrong side of. We have over the last nine months not shown compassion towards women. And this is one of those issues that I've tried to lead on as someone who's pro-life and just have some common sense. In the state of South Carolina, just a few weeks ago, we had some folks in the state legislature that essentially wanted to execute women who had abortions.

So we've got some extreme views on this issue, but 90% of America is somewhere in the middle. And I think that that 90% would be okay with listening to the FDA rather than a judge who used an old law. So, you know, maybe she's not going as far as what some of the Democratic lawmakers are doing, sure. But it was, I thought, striking what she's saying there. Well, she's saying the same thing that the Wall Street Journal editorial page is saying, that other Republicans are saying. Don't forget, in January of 2023, after the Republicans had a pretty poor showing in the midterm elections, Donald Trump posted on

Truth Social that one of the reasons they lost, he said, was because the abortion issue was, quote, poorly handled. And he blamed Republicans who were pushing for abortion bans with no exceptions for why Republicans didn't do as well. So it sounds like you don't think we're going to see divides in the Republican primary, Mara. I think there are people who are going to try to do what Nancy Mace was doing. She said she was pro-life. Those labels almost are meaningless now. Are you pro-life with exceptions? Are you pro-choice with restrictions? I mean, this debate is changing rapidly. And right now, Democrats have the advantage. And yes, I think in the Republican primary, you'll is another loser here, and that's the Supreme Court. I was just about to ask you about that. And Justice Alito's opinion for the majority of the court in the Dobbs case basically said, look, Roe versus Wade was a terrible decision that has divided the country.

And this is our effort to make it right, because that was an egregious opinion. Well, what we're seeing is more division, more issues than I think any of these justices contemplated in the majority. I don't know how many of them will flake off if this ultimately comes to them, which it probably will. Exactly. If they need to make a decision, do you feel like they're going to understand some of the political pressures? Like, will they be sensitive, do you think, to that? I don't think that Supreme Court justices, for the most part, are particularly adept political observers. Let's put it that way. But there is, you know, here you could see Justice

Kavanaugh, for example, during the oral argument in the Dobbs case said, look, this could be quite simple. The states that want to have abortion can have abortion and the states that don't want to have abortion don't have to have abortion. Well, as it turns out, it's a lot more complicated. And I don't think he contemplated all of these issues. And God knows what they're going to do. All right. Well, let's leave it there for today. I'm Asma Khalid. I cover the White House. I'm Mara Liason, national political correspondent. And I'm Nina Totenberg. I cover the Supreme Court. And thank you all, as always, for listening to the NPR Politics Podcast.