Supreme Court Side-Eyes Anti-Abortion Doctors | Crooked Media
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March 26, 2024
What A Day
Supreme Court Side-Eyes Anti-Abortion Doctors

In This Episode

  • The Supreme Court justices on Tuesday seemed skeptical of a case that challenged expanded access to the abortion medication mifepristone. It was brought by anti-abortion doctors looking to roll back access, but during oral arguments, both liberal and conservative justices questioned whether the group had the right to bring the case, a concept known as standing. Leah Litman, co-host of Crooked’s legal podcast Strict Scrutiny, explained why the justices kept coming back to the issue, and what it could mean for the court’s final decision.
  • And in headlines: Six construction workers are presumed dead after a bridge collapsed in Baltimore, former Republican National Committee Chair Ronna McDaniel got the ax from NBC News, and a New York judge issued a gag order against former President Donald Trump in his criminal hush-money trial.

 

Show Notes:

 

 

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TRANSCRIPT

 

Tre’vell Anderson: It’s Wednesday, March 27th. I’m Tre’vell Anderson.

 

Priyanka Aribindi: And I’m Priyanka Aribindi. And this is What a Day, the pod that’s excited about the McDonald’s announcement yesterday that it will start selling Krispy Kreme donuts later this year. 

 

Tre’vell Anderson: Listen, I do want to know if we can mix them into our McFlurrys, but more importantly, will the ice cream machine be working? 

 

Priyanka Aribindi: I want to know if I can get a burger in between the donuts. So we’re asking the hard hitting stuff. Someone from McDonald’s? Please answer our calls. [music break]

 

Tre’vell Anderson: On today’s show, six construction workers are presumed dead after Tuesday morning’s bridge collapse in Baltimore. Plus, former RNC chair Ronna McDaniel was booted as an NBC news contributor after just four days. 

 

Priyanka Aribindi: But first, let’s talk about what happened in the Supreme Court’s biggest case on abortion rights since the end of Roe. Yesterday, the Supreme Court heard oral arguments in a case that could limit the availability of one of the two drugs commonly used together in medication abortions, mifepristone. The case was brought by a group of anti-abortion doctors who argue that the FDA was wrong when it expanded access to the drug in recent years. Back in 2016 and again in 2021. And they want the court to roll those expansions back. 

 

Tre’vell Anderson: Okay, so first off, remind us what the FDA did. It initially approved the drug decades ago, but how did the government make it easier to get in recent years?

 

Priyanka Aribindi: Yes mifepristonel has been around with no problems for quite some time, but the FDA did a few things more recently. Back in 2016, it allowed more kinds of medical professionals to prescribe mifepristone, including nurse practitioners and physician’s assistants, instead of just doctors. It also said that the drug was okay to use later into a pregnancy at ten weeks instead of just seven weeks. And then in 2021, the FDA expanded access again. That time, it dropped a requirement that the drug had to be picked up in person. So as of now, mifepristone can be prescribed via telemedicine by nurse practitioners, doctors and physician’s assistants and can be sent through the mail so people don’t have to go to a pharmacy to pick it up. It has expanded access in many ways for people who don’t live close to pharmacies, aren’t able to go, don’t want to leave the privacy of their home to do this. These changes have dramatically expanded access to medication abortion. And according to a report published last week by the Guttmacher Institute, an abortion rights policy center, medication abortions made up nearly two thirds of all abortions in the US last year, and the total number of recorded abortions last year also topped one million for the first time in more than a decade. Despite the fact that it’s almost completely banned in more than a dozen states. 

 

Tre’vell Anderson: And now those expansions are being challenged by this group of anti-abortion doctors and organizations. 

 

Priyanka Aribindi: Right. 

 

Tre’vell Anderson: What was their argument in front of the court yesterday? And did the justices seem receptive to it? 

 

Priyanka Aribindi: This group of doctors argued that the FDA acted inappropriately, and that it should go back to these pre-2016 rules. And despite the fact that this is the same conservative court that nearly two years ago overturned the right to an abortion under Roe v Wade, a majority of the justices actually seemed very skeptical that this group of doctors was actually hurt by the FDA’s rule changes, and questioned whether they even had the right to be there. In legalese the concept is known as standing. Here’s an exchange from yesterday’s oral arguments between Justice Elena Kagan and a lawyer for the doctors, Erin Hawley.

 

[clip of Justice Elena Kagan] You need a person. You need a person to be able to come in and meet the court’s regular standing requirements. So you agree with that? Yes? 

 

[clip of Erin Hawley] I think that’s correct, your honor. Yes. 

 

[clip of Justice Elena Kagan] Okay. So who’s your person? 

 

Priyanka Aribindi: Hawley named two of the doctors in the suit, though that didn’t seem to satisfy Kagan. But it wasn’t only the liberal justices who had issues here, either. A few of the conservative justices also expressed skepticism about the doctors standing. Here’s Justice Neil Gorsuch. 

 

[clip of Justice Neil Gorsuch] And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule, or any other federal government action. 

 

Priyanka Aribindi: To better understand why this issue of standing was such a significant part of arguments yesterday, I spoke earlier with Leah Litman, the co-host of Crooked’s legal podcast Strict Scrutiny and very good friend of our program. You know her, you love her. I started by asking her why the justices kept coming back to this. 

 

Leah Litman: I mean, they were questioning it because the doctors don’t have standing. So in order to establish standing, to raise this kind of claim, the doctors need to establish some likelihood of future injury. That is, some chance that they are going to be injured in the future from the government action they are challenging. So under their theory of standing, it goes something like this. When the FDA said that medication abortion could be made available via telemedicine up to a certain number of weeks gestation at certain dosages, that somehow made it more likely that women would experience complications from mifepristone, and that these doctors would somehow be called upon to treat their complications from mifepristone, even though they do not prescribe mifepristone, even though some of them are dentists, and even though the complications from mifepristone are super low. 

 

Priyanka Aribindi: Right. 

 

Leah Litman: And it’s not clear that prescribing it via telemedicine or at the current FDA [?] approved dosages is more risky than the previous dosages. So their theory just utterly collapses. And it’s not just that the theory is outlandish it’s that the court is hearing this challenge in the lead up to the 2024 election, and I think the combination of a legally outlandish theory that would provoke possibly more backlash than them overruling Roe in Dobbs in the lead up to the 2022 midterms, is enough to get them to stand down for now. 

 

Priyanka Aribindi: Right. I mean, the justices have given standing to plaintiffs with hypothetical injuries before, specifically thinking of a case last year when the conservative justices sided with a website designer who was worried about the possibility of having to create wedding websites for same sex couples. Also back in 2019, when the justices sided with the Commerce Department in their fight against the Trump administration’s bid to put a citizenship question on the 2020 census. But why are they treating this case differently? 

 

Leah Litman: Two reasons. First, I think that this kind of challenge is fundamentally different than the kind of challenge at issue with 303 creative, because the kind of challenge at issue in 303 creative involved an individual who would themselves be subject to regulatory penalties and sanctioned by the state if they violated the law. Here, the doctors who are challenging medication abortion access are not challenging some law that they say could be enforced against them. So that makes the chain of causation even more attenuated than it is when someone says, look, this law that I could be prosecuted under is harming me. And so that just makes their standing more difficult to challenge. And then the census case that you referred to there, the logical inferences were backed up by social science data that the federal government, the Department of Commerce, had, which is if you add a citizenship question to the census, then less people will fill it out because of concerns over immigration penalties, for applicants, people who fill it out or family members. And again, all of that was backed up by experiments and observed data. And so it’s just different in that here, the plaintiffs are not themselves subject to the law and have absolutely no medical scientific data to bolster any of their outlandish theories. 

 

Priyanka Aribindi: Going back to the specifics of this case, these doctors, you know, claim that they face moral issues treating patients who have taken mifepristone. But at one point, Justice Ketanji Brown Jackson suggested that there is already a remedy for this issue that they can opt out of providing the kind of care that they’re morally opposed to. Take a listen to this clip between Justice Jackson and Solicitor General Elizabeth Prelogar.

 

[clip of Justice Ketanji Brown Jackson] I guess I see it that the injuries that the respondents allege, as you’ve articulated them, are a conscience injury, that they are being forced to participate in a medical procedure that they object to. And so the obvious commonsense remedy would be to provide them with an exemption that they don’t have to participate in this procedure. And you say, and you’ve said here several times that federal law already gives them that. So I guess then what they’re asking for in this lawsuit is more than that. They’re saying, because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all. 

 

Priyanka Aribindi: How does that further undercut the doctor’s case here? 

 

Leah Litman: I think she is pointing out there’s just a mismatch between what they say is the problem and the legal remedy that they are seeking, because what they are complaining about is we do not personally want to either have to perform, you know, completed abortion via procedural abortion or perhaps to prescribe mifepristone. And Justice Jackson’s point is you’re not being asked to do that anyways. So your complaint is much broader, and that broader complaint is even harder to substantiate, because it seems to be premised on this idea that these doctors just get to control what every other doctor in the country can do. 

 

Priyanka Aribindi: And I don’t want to make you join the prediction game, but based on how yesterday went, do you think it is likely that they will end up tossing this on the basis of standing? 

 

Leah Litman: I do, I think it’s very likely that they will do that. 

 

Priyanka Aribindi: So we are nearing the two year anniversary of the court’s decision to overturn Roe v Wade. In doing so, Justice Alito wrote in the majority opinion that the court returns that authority to the people and their elected representatives when it comes to abortion. And yet, in addition to this particular case, the justices will also hear another abortion case next month over whether emergency care at hospitals has to include abortion care. Can you talk to us a little bit about those words from Alito and just how wrong they’re proving to be over time? 

 

Leah Litman: They were so obviously a joke, given other indications in the Dobbs opinion itself, as well as Justice Alito’s own writings. I mean, in this very argument, Justice Alito was asking all of the advocates about a theory that this 1873 law, the Comstock Act, could be revived by some Republican administration down the road by a Republican president and Republican attorney general to throw abortion providers and medication abortion distributors and manufacturers in jail without Congress having to do a single thing or enact an abortion ban if the courts let them do it. So they know they don’t have anywhere near a popular mandate or nationwide support for their antiabortion anti reproductive freedom platform. It has always depended on the courts facilitating that agenda, and that’s part of what this case was designed to do. And that’s part of what other challenges, you know, are designed to do as well. The other case that you mentioned, that the court will be hearing in April, is partially designed to defang the protections for emergency care, including reproductive care that are in federal law. You know, that Congress enacted and they need the courts to cut back on those again, because they know depriving people of health care, including reproductive health care, is not popular. People don’t like that. 

 

Priyanka Aribindi: That was my conversation with Leah Litman, co-host of Crooked’s legal podcast, Strict Scrutiny. 

 

Tre’vell Anderson: And there is obviously a lot at stake. As a reminder, the court won’t issue its ruling on this case until this summer. But our producer, Natalie Bettendorf, went out to the steps outside of the Supreme Court yesterday and heard from a number of activists who were there, including Alexis McGill Johnson, the president and CEO of Planned Parenthood. Take a listen to what she had to say. 

 

[clip of Alexis McGill Johnson] Let me tell you something. I just walked out of that courtroom where they were struggling to find standing. [cheers] Struggling. They were struggling to find yet another reason to try to take away our freedoms and control our bodies. And I listen to those opponents of freedom, try yet again to decide whether, when and how patients access abortion care, even in states where it’s legal. So we remind them abortion is? 

 

[clip of crowd chanting] Healthcare! 

 

[clip of Alexis McGill Johnson] Abortion is? 

 

[clip of crowd chanting] Healthcare! 

 

[clip of Alexis McGill Johnson] Abortion is? 

 

[clip of crowd chanting] Healthcare! 

 

Tre’vell Anderson: Yes, absolutely. Abortion is health care. In the meantime, you can be part of the fight for reproductive rights right now as well. Just head to VoteSaveAmerica.com/fuckbans. That’s the latest for now. We’ll be back after some ads. [music break]

 

[AD BREAK]

 

Tre’vell Anderson: Let’s get to some headlines. 

 

[sung] Headlines. 

 

Tre’vell Anderson: Let’s give you an update on the collapsed Francis Scott Key Bridge in Baltimore. There were eight construction workers on the bridge when it collapsed yesterday morning after a massive cargo ship crashed into it. The U.S. Coast Guard said last night that six of them are missing and presumed dead, but will resume efforts to recover their bodies today at 6 a.m. eastern. Another worker has been hospitalized. Take a listen to what Maryland Governor Wes Moore had to say at a press conference yesterday. 

 

[clip of Maryland Governor Wes Moore] To the victims of this tragedy and their loved ones. All of our hearts are broken. We feel your loss. We’re thinking of you, and we will always be thinking of you.

 

Tre’vell Anderson: By now, you’ve probably seen the horrifying video of the incident on social media. The cargo ship sent out a distress signal early Tuesday morning to let authorities know that the vessel lost power before it hit the bridge. The collapse of the bridge is sure to have an impact beyond Baltimore though, the overpass carried part of Interstate 695, a road that’s crucial to the East Coast supply chain. The National Transportation Safety Board said yesterday that it plans to investigate the incident after rescue workers complete their search. 

 

Priyanka Aribindi: The New York Judge overseeing former President Donald Trump’s criminal hush money trial issued a gag order against him yesterday. The judge barred Trump from attacking witnesses, prosecutors and jurors in the case. Earlier this week, the judge set April 15th as the start date for the trial. This trial, as a reminder, is over whether Trump tried to cover up payments to the adult film star Stormy Daniels in the lead up to the 2016 election. However, we know that following a gag order isn’t one of Trump’s strong suits, but he has some new revenue streams for any possible fines that he may incur for violating this one. We don’t want to encourage it, but it unfortunately is true that shares of Trump Media and Technology Group closed up 16% during its first day of trading yesterday. Over time, the stock could earn him a few extra billions of dollars. He also started promoting a line of fancy Bibles for $60 a pop. Here is a little bit from his announcement on Truth Social. 

 

[clip of Donald Trump] All Americans need a Bible in their home and I have many. It’s my favorite book. It’s a lot of people’s favorite book. 

 

Tre’vell Anderson: Why is he lying? 

 

Priyanka Aribindi: Lying through his teeth, even the way he says it is comical. That man has obviously never opened a Bible in his life. But wait, there’s more. The Bible also comes with a copy of the Declaration of Independence, the Bill of rights and the Constitution, including the part where it says Congress shall make no law respecting an establishment of religion. The price does not include shipping and other fees, but the irony is entirely free. 

 

Tre’vell Anderson: That separation of church and state thing is very hard for some people. 

 

Priyanka Aribindi: How long until Donald Trump is signing people’s Bibles? Does this mean that he only endorses his Bibles? I have a lot of questions about this. Unfortunately, none will be answered, but it’s okay. [laughing]

 

Tre’vell Anderson: We saw a couple of wins for worker’s rights yesterday over in Washington state. Governor Jay Inslee signed a bill known as the stripper’s Bill of rights. The legislation includes a slate of protections for folks who work in the adult entertainment industry, like mandatory workplace safety training and limits on how much employers can charge dancers to work there. The new law also requires that clubs have on site security, as well as keypad locks for dressing rooms and panic buttons in areas where dancers may be alone with customers. This is a big deal because most adult entertainment workers are classified as independent contractors who typically aren’t protected under state labor laws. Meanwhile, over in Wisconsin, the state’s Supreme Court on Tuesday honored a lower court ruling that classified Amazon delivery drivers as employees of the retail giant. Amazon initially argued that its drivers were independent contractors and therefore not entitled to unemployment insurance from the state. The high court’s ruling was unanimous, and now Amazon will likely have to pay a tax bill of more than $200,000. Shout out to the dancers, the strippers, the exotic girls. Okay, who now have these workplace protections as well as the Amazon drivers. 

 

Priyanka Aribindi: Absolutely. Protections for everyone. We love to see it. Vaccine denier and independent presidential candidate Robert F. Kennedy Jr announced his VP running mate yesterday, Nicole Shanahan. Here she is. 

 

[clip of Nicole Shanahan] It is his commitment to peace and to the welfare of hard working people in America that draw me as a person of compassion to his candidacy. 

 

Priyanka Aribindi: Hmm. Shanahan is an attorney and tech entrepreneur who was once married to Google co-founder Sergey Brin. Announcing a VP now is hugely important to RFK Jr for two reasons. First, his campaign needs the cash and she has got deep pockets. Here’s Democratic strategist, Lis Smith, who’s on today’s episode of Pod Save America. 

 

[clip of Lis Smith] She’s already given $4.5 million to the super PACs helping him. So this might be the first case in history where someone was able to buy themselves a VP slot. 

 

Priyanka Aribindi: Listen, I’m sure Trump will come up with the second case any day now. The second reason this announcement helps RFK Jr., about half of states require independents to list a running mate before applying to be on ballots, and his campaign told CNN that it’s starting a petition drive this week in 19 of them. 

 

Tre’vell Anderson: Ronna’s a goner. Okay. Ronna McDaniel is out at NBC news. The super short tenure of the former Republican National Committee chair ended yesterday. NBC only announced last Friday that it hired her as a contributor. But ever since then, there’s been an all out revolt from the network’s talent. In a memo yesterday, NBC Universal News Group’s chair, Cesar Conde said, quote, “I want to personally apologize to our team members who felt we let them down.” And more letters of the alphabet dropped McDaniel yesterday as well. CAA, the talent agency that helped broker the deal with NBC, also cut McDaniel as a client. That’s according to Variety and The Hollywood Reporter, who quoted unnamed sources. Ronna, if you really need to be on TV, maybe you should just team up with Candace Owens. I hear that House of Villains, season two is casting, might be the perfect next gig for ya. 

 

Priyanka Aribindi: I feel like ideally you would just slither away into obscurity, but if you got to be out there, that might be the right place for you. Finally, one lucky rich person out there just got the fanciest floatie for their backyard pool, icy Leo DiCaprio not included. The door from the film Titanic was sold at auction last Saturday for over $710,000 to an anonymous bidder. This is the door that Rose floated on to save herself, that apparently was a single seater and didn’t have room for another person. So I guess for the very reasonable price of $710,000, you can test that theory for yourself. The prop was one of over 1600 pieces of movie memorabilia sold by Planet Hollywood at an auction. Also sold was the whip from Indiana Jones and the Temple of Doom, and the bowling ball from Kingpin. The auction brought in $15.6 million. But to answer your biggest question, you might have thought while hearing this yes, Planet Hollywood is still around. They have three restaurants and a hotel, but not as many movie props anymore, for obvious reasons. 

 

Tre’vell Anderson: You know, Planet Hollywood. I may or may not have attended a conference there late last year. 

 

Priyanka Aribindi: Oh? 

 

Tre’vell Anderson: And it was not the place to be. I’ll just leave it at that. 

 

Priyanka Aribindi: And those are the headlines. 

 

[AD BREAK]

 

Priyanka Aribindi: That is all for today. If you like the show, make sure you subscribe. Leave a review, buy yourself a door made for two and tell your friends to listen. 

 

Tre’vell Anderson: And if you are into reading and not just seeing how Ronna’s resumé tries to explain her short NBC stint like me, What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe! I’m Tre’vell Anderson. 

 

Priyanka Aribindi: I’m Priyanka Aribindi.

 

[spoken together] And we want a Big Mac with Krispy Kreme as the buns. 

 

Priyanka Aribindi: I’ve had this before. Not a Big Mac, but a burger with donuts as the buns. So good. It’s terribly unhealthy, but it’s delicious. 

 

Tre’vell Anderson: It’s giving heartburn, indigestion, and diarrhea all in one. 

 

Priyanka Aribindi: But also pure joy before that. And like, who’s to say that one isn’t worth the other? [laughter] [music break]

 

Tre’vell Anderson: What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our associate producers are Raven Yamamoto and Natalie Bettendorf. We had production help today from Michell Eloy, Greg Walters and Julia Claire, and our showrunner is Leo Duran. Adriene Hill is our executive producer. Our theme music is by Colin Gilliard and Kashaka. 

 

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