The NPR Politics Podcast - Is Friday Last Day To Access Medication Abortions? Up To SCOTUS

Episode Date: April 20, 2023

The Supreme Court has three options: send the fight over mifepristone — a drug used for over half of U.S. abortions — back to a lower court, take the case up in this summer or fall, or allow the ban to go into effect.After granting themselves more time to decide, justices have a deadline of midnight tomorrow to decide.This episode: White House correspondent Tamara Keith, legal affairs correspondent Nina Totenberg, White House correspondent Asma Khalid, and senior political editor and correspondent Domenico Montanaro.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. 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

Support for NPR and the following message come from the Kauffman Foundation, providing access to opportunities that help people achieve financial stability, upward mobility, and economic prosperity, regardless of race, gender, or geography. Kauffman.org My name is Dave Petrie from Mount Airy, North Carolina. I am currently at lunch with fellow Community Advisory Board members for North Carolina's oldest public radio station, WFDD. And joining us for lunch is...

Bob Mondello. I'm the movie critic for All Things Considered. And we discussed our favorite movies and food like Bob's new favorite... Deep Fried Pickles. I would never have guessed. This politics podcast was recorded at... 9.37 a.m. on April 20th, 2023.

Ooh, I like Deep Fried Pickles, pickles too things may have changed by the time you hear this but one thing that won't change is bob's insightful reviews of the movies we all need to watch thank you sir now here's the show i actually do love fried pickles me too dipped in ranch it's a ranch no that's excessive. If you're already eating fried pickles, what's excessive, really? Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Nina Totenberg, and I cover the Supreme Court. Today, more coverage of abortion. The Supreme Court reshaped the American political landscape with its Dobbs ruling that returned abortion

regulation to the states. And many states had laws that went into effect very quickly banning abortion. Now the court is set to decide the future of medication abortions, specifically the drug mifepristone. It's used in more than half of abortions in the United States. Nina, about two weeks ago in Texas, a federal district judge, Matthew Kazmarek, imposed a nationwide ban on mifepristone. A Texas judge has issued a nationwide injunction saying the FDA improperly approved the abortion pill mifepristone, part of a two-drug regimen that's long been the standard for medication abortion in the U.S. Then a judge in

Washington state almost immediately issued a contrary ruling. Meanwhile, a federal judge in Washington state ruled the FDA may not remove the drug from the market. Then an appeals court weighed in. Just hours after a federal judge in Texas suspended the FDA approval of the abortion pill Mofopristone, the Justice Department appealed the ruling to the Fifth Circuit Court of Appeals. So the Supreme Court originally paused this all until last night, but they've now given themselves an extension until Friday. So that's where we are. Nina, let's start with this. What does this extension mean? Is there anything that you can read into it? Well, I think you can read into it that they couldn't get it done by midnight Wednesday.

And therefore, they must have a lot of disagreements about how to proceed. And maybe some of them are writing something. This is the most conservative court in 90, 100 years, and it's got a six to three majority. But internally, within those six, they don't agree. And they have sharp disagreements with the other side of the court, what I would call the sort of moderate left, which is the three Democratic appointees. And I think they must be duking it out a bit. And they have a conference scheduled for today. So a regular conference. So this is the place I suppose to duke it out. And we might see an order with some people writing separately with disagreements or

suggesting that the lower court do something different and sending it back to the lower court. I have a hard time believing they're not going to actually grant some sort of a stay to block what the Court of Appeals did, because it really would, I'm convinced anyway, it would cause regulatory chaos. That's what the Biden administration told them. And it's what the pharmaceutical industry has told them very clearly and the medical profession, except for the pro-life doctors who brought this case. OK, so I want to just pick apart what you've said, because I think that there's a lot embedded in what you just told us. Previously, you had told us on the pod that there were kind of like three options the court could take. So if we could just walk through what those are, what is the first option? ruling a bit, but still changed the way Mifepristone can be regulated at the moment, and would really throw a monkey wrench into the works.

So option one is kind of a holding pattern until the Fifth Circuit does it, and then it would probably inevitably end up back at the Supreme Court. What is option two? Option two is the court says, grants a stay and says, we'll hear this either very soon or we'll hear it in October when the court resumes. And we just leave the status quo in place. And option three is the court says, we don't grant a stay. And we have another explosion, a bomb that's gone off about abortion rights or lack of rights in this country. So, Nina, if you could just look into your crystal ball, do you have a sense of where you think this is going?

What we can expect to find out Friday night? You know, this is really difficult. We're waiting for Godot here. And we don't have a spy in the room to tell us what's going on. As I said, I think they're probably in considerable disagreement. And that's why we didn't have an order from the court at the time we expected. I don't think that's a kumbaya court at the moment. And probably some people will write separately to either tell the Fifth Circuit, well, here's what I think you ought to do, what you ought to pay attention to, or write separately being very angry about what the court, their colleagues have done, whatever they decide to do. So I think that's what we should expect. Maybe we'll, you know, sweetness and light will prevail and we'll get a simple order that says do X. But this waiting

doesn't suggest that. Well, Nina, don't get too far away from your microphone because I have a feeling we're going to have you back on the pod very, very soon. Thank you, Nina. Thank you. And it's time for a quick break. And then when we get back, the politics. And we're back with Asma Khalid and Domenico Montanaro. Hello, friends. Hey there. Hey. So abortion politics has handed Democrats an issue where they have a huge and broad coalition of support.

It helped them minimize their losses in the House and gain seats in the Senate during the midterms, even with President Biden's approval rating underwater. And now it is quite clear that this issue is here to stay. Domenico, how is this scrambled politics? Well, clearly, you know, since the Dobbs ruling, abortion rights has been, you know, an earthquake in politics. And that kind of volatility rights has been, you know, an earthquake in politics. And that kind of volatility is something that, you know, the party that's out of power doesn't typically like to see because Republicans were hoping to use the economy, inflation, President Biden's low approval ratings as an albatross, not just around his neck, but around the rest of the parties. And instead, abortion rights was something that sort of

lifted the tide for Democrats and their activism, fundraising. And we're continuing to see that, especially as conservative states, red states continue to push more and more hardline abortion policies that are frankly out of step with the mainstream popular public opinion. And Asma, you have new reporting about how the White House has been handling this issue. And it focuses in on Vice President Kamala Harris, who is clearly taking the lead on this issue for the administration. That's right. I mean, she's been doing a lot of the out in the streets, rallying the crowds effort here. And I will say, to be clear, whatever she's doing, whatever the administration is doing is certainly at the directive of the president. But analysts tell me, you know, there's a sense that President Biden is not necessarily as comfortable speaking

on the issue of abortion as Kamala Harris is. I mean, she speaks about women's choice, a woman's body in a way that I think is just very natural for many women to be able to do. And then there's the point that, you know, Biden himself had previously expressed reservations about abortion due to his Catholic faith. He, of course, has evolved on that position, I will say in part because kind of the way things are right now in politics, you have to pick a side. But this is all to say, you know,

you've seen Harris out there using the power of the bully pulpit. Her staff tells me she has visited 18 different states since the Dobbs decision was leaked, and she's going to continue to go out there and really kind of hear from voters about what they're concerned about and then also advocate for just keeping attention on this issue. President Biden did recently weigh in on Judge Kaczmarek's ruling and said it was a terrible thing. But you're right. He's not leaning into the issue. He answers when asked, whereas the vice president is out there being very public on this issue. Yeah. I mean, there was one analyst I spoke with, Linnea Erickson. She's with this centrist

Democratic think tank called Third Way. And I thought she had a pretty sharp analysis of what Biden's job is. His role is to help frame just how extreme the Republican policies are. He is much more comfortable talking about the kind of edges of this debate and where it has moved. You know, we've seen that. I mean, he's made it clear that reproductive rights are certainly a priority for this administration. He's called on Congress to pass a law that would codify Roe versus Wade. But again, he's not out there rallying the troops, right? He talks about this as a threat to democracy and this broader theme that he ran on during the midterms. And Domenico, I think Democrats who ran in swing districts

felt pretty strongly that making this bigger than just a medical procedure, but making it a freedom issue was a resonant message for them. Those candidates were also helped by the fact that there were a lot of Trump-backed extreme candidates who were running in those districts who independents really just were turned off by. There was a study done by a prominent Republican pollster that I know who sent along some of his slides about this and said that independence really went up in 2022 as far as their share of the electorate. And that really meant that they were a key group and overwhelmingly they disapproved of former President Trump and were really turned off by the kinds of candidates he put forward. To that point, Domingo, someone I interviewed mentioned that, you know, for a long time, Republicans and Democrats talked about abortion rights in a kind of hypothetical manner, right? At least while Roe versus Wade was the law of the land. But now you see what this actually means in

states that are led by Republicans, where Republicans have, for example, tried to ban medication abortion or where they've put very strict limitations on abortions. And that's not where public opinion is. Yeah. And it's not abstract anymore. It's not an academic debate. Asma, you also spoke yesterday, you had an interview with White House Chief of Staff Jeff Zients. What did he have to say about how the White House is approaching this? He did reiterate that this is a priority for the administration. You know, he emphasized again that Harris is kind of leading the charge for the White House. But he would say, you know, broadly, they've been clear that whatever happens with this court decision, that they are prepared for any outcome, that they're going to continue to fight. You know, one of the things that many reporters have been asking the White House is, well, what is the plan B, right?

What are you prepared to do? Because there was a sense in some ways that the administration wasn't out there fighting as soon as that Dobbs decision was leaked, right? And there was some criticism, I think, from activists about the way the White House initially responded. What we're hearing from the White House now is they don't want to kind of get ahead of the court's decision, but they say they are prepared for any outcome. We just don't know exactly what that's going to look like. We've been talking a lot about Democrats here, but Domenico, I want to talk about Republicans because they used to own

the issue of abortion. And now I'm struggling to figure out what exactly their position is or whether they agree broadly as a party on what their position is. You have candidates for president or likely candidates for president, like former Vice President Mike Pence, who say this is great. This decision is awesome. And you have a lot of people who are pretty quiet on it or are concerned that this is a loser issue. So where is the Republican Party? The fact is, this is an issue that is dividing a lot of Republicans. They don't know how to message on it. They are behind on this when it comes to messaging. And, you know, a lot of that is because they don't have any leadership as far as what to say or do about it. I mean look at the leaders we're talking about. Former President Trump is pretty much silent on this issue.

Mitch McConnell, the Senate Republican leader, hasn't touched it at all. Kevin McCarthy, the House speaker, is really kind of beholden to his right wing of the party, but he has also kind of danced around this issue. We've had a lot of silence from Republican members on Capitol Hill on this. Notably, we've heard from Nancy Mace from South Carolina, who said that Republicans are on the wrong side of history when it comes to the issue of medication abortion and the controversy we've been seeing with the drug Mifepristone. And you mentioned former Vice President Pence. He was the only Republican candidate, notably, to really come out and speak forcefully in favor of the Texas ruling that led to this Supreme Court case that would overturn

the FDA's decision to approve of Mifepristone, Ron DeSantis, the Florida governor who hasn't run yet, but people expect to run, signed a six-week abortion ban in basically the middle of the night in Florida. So you have a lot of Republican candidates really not wanting to talk about this or they're getting pigeonholed into taking the most conservative position. Well, let's leave it there for today. I'm Tamara Keith. I cover the White House. I'm Asma Khalid. I also cover the White House. And I'm Domenico Montanaro, senior political editor and correspondent. And thank you for listening to the NPR Politics Podcast.