Abortion: Mission Impossible

Hey, everybody, welcome once again to the weekly show with Jon Stewart. I'm Jon Stewart, and I apologize if that was too enthusiastic. I have yet to understand, in terms of a podcast, how to open it up, what level of enthusiasm is appropriate for when people are just listening to something, as opposed to on cable television, when you're coming in and very clearly somebody's making popcorn or something else. So that may have been too forceful. And I'm sure that our grand producers, Brittany Mamedovic and Lauren Walker, who are here with me, would be able to tell you.

Are you suggesting? I vetoed you?

No! Lauren, how could you come in in a defensive posture on that? No, we have, it's again, we're, listen, it's an issue that this Miffa-Pristone judgment that came down and was promoted as this win for abortion rights, but was really kind of a just kick the can.

Totally. And I think, just to bridge last week's episode and this week's episode, last week the House voted on the defense bill that included a provision blocking abortion coverage from the Pentagon. More specifically, they're trying to reverse a Pentagon policy which allows service members to be compensated for time off and travel if they need reproductive care. So it just shows you the attacks come from everywhere, can fit into any bill. Yes.

And the extent to which they will not allow it. Anywhere. That there is no opportunity small enough for them to inject that in there. And that's for sure. Although, to be fair, it's the House and their knuckleheads.

Let's fucking hope not.

Let's hope not.

They'll try anyway.

By the way, that was Brittany Mamedovic, with just filthy language. Just if I may, for those of you at home who are watching and this podcast, obviously, is geared towards six to eight year olds, I just want to let them know that I did not in any way condone the use of the word fuck.

No, of course not. I've learned from the best, though.

You've learned from the saltiest speaker of all. So I apologize for all of that. But our guests this week are fabulous to discuss it. So let's, let's get to them right now.

I mean, part of the problem is there's so much. And they're not relying on any one attack, which is really smart. So if one fails, they have a million others waiting in the wings. But I think, you know, the things that I'm most worried about are travel bans, which I feel like are not getting enough media coverage at all. People sort of don't know that they exist or they think that it's something we don't have to worry about, because right now it's primarily targeted towards teenagers.

Melissa, let me ask you. So, that brings up how they're doing it legally. So they're setting these boundaries. I don't know much about how a travel ban is placed legislatively or is enforced. And, mifepristone, the big news was, oh, that ban failed at the Supreme Court.

No, I think that's right. Thanks for having me. It's great to be back.

Melissa, anytime. Anytime, Melissa.

Thank you. Again, the dogma has caught the car on this issue. I want to tack back to something that Jessica said. Yes. You know, before Dobbs and the fall of Roe, we had become anesthetized to the fact that you had to wait two days if you wanted an abortion, that you had to travel and take time off of work if you wanted to do this and have an ultrasound.

When you say the status quo, what do you mean by that?

So the court in this case, this was a challenge to Mifepristone, which is one of the drugs in the two-drug medication abortion protocol. And it was a challenge to the FDA's approval of Mifepristone and then also to the FDA's regulations that were released during the pandemic that made Mifepristone easier to access because it allowed for its distribution through the mail. You could do telehealth or something like that. Right, you could telehealth, all of that. I think the way for your listeners to think about this challenge to Mifepristone and those regulations is that this was the anti-choice movement's effort to ban abortion in blue states, where it's accepted, where the constituents want access to reproductive freedom.

Nor are they Hippocratic.

Well, they're Hippocratic, but not Hippocratic.

No, but not Hippocratic.

No one, like. there are very few women who have ever been harmed by Mifepristone because the drug is incredibly safe. And so it was a real challenge for them to actually find plaintiffs who could make out an actual injury to challenge the regulations of this law. And so instead you had these doctors making absolutely specious claims that their injury was in losing the aesthetic value of seeing a baby born, of seeing their in utero patient brought to life.

Wait, that was the injury? It wasn't a physical, oh, they were hurt. It was. they would never have the glory?

It was a generalized grievance, moral objections to abortion. And the court rightly said that that's never been enough under Article 3 of the Constitution to sustain jurisdiction in federal court. But the fact that we had to go to the Supreme Court to say that is absolutely crazy, because everybody knows that. So this should have been struck down well before it got to the court.

For God's sakes, they, in the same session, made it so that bump stocks are available. So this thing that actually does bring grievous harm to people through turning a regular gun into a machine gun, yeah, that's cool. But Mifepristone with its imaginary.

But this is the thing, John. So the court issues this decision, says no, this is a completely specious standing claim. We're going to kick this out of court. We're not even going to decide this on the merits. And then you have the mainstream media heralding this as a victory for reproductive freedom.

Melissa Murray, at long last, have you no decency. Are you suggesting that the mainstream media has not picked up the nuance of this Supreme Court decision?

I will say when I go on MSNBC, I make sure that the nuance is picked up. I don't know that everyone is doing this. But people are talking about this as a victory. It's not a victory. Or, if it is, it's a very muted victory.

Oh, it's relentless.

Well, but this is the point. The winner here is not the pro-choice movement. It's the court, because the court gets to appear moderate on the issue of abortion at a time when millions of people are galvanized about abortion as an electoral issue. We have an election coming up in a few months. This court does not want to be a part of that election and that narrative.

And kicked it down the road. Jessica, I want to ask you because we bring up—we sort of talk about these things in the—well, in red states it's this, and in blue states it's this. But it's obviously never as simple. And there are certainly blue cities in red states and red voters in blue states. And never the twain shall meet.

Yeah.

What is your option? What is your recourse?

I mean, it's really either travel, right, which you have to have enough money to do. You have to have support to get out of the state. Or you can get abortion medication shipped to you in the state. But you have to risk, okay, if someone finds out about this, if an ex-boyfriend, someone who doesn't like me, finds out that I had abortion medication shipped to me, they can make my life hell. They can bring a lawsuit because Texas has the ability to bring civil suits against anyone who aids and abets in an abortion.

Oh, yeah, yeah, yeah. Don't bury the lead there. Say that again. Sure.

So Texas has something that is sort of informally called the Bounty Hunter Mandate, where you can get 10,000….

The Bounty Hunter Mandate for pregnant women.

Well, this is how they get around it, because they never want to seem as if they're attacking the actual pregnant person. They say anyone other than the pregnant person. So someone who drove them out of state, someone who helped them get abortion medication. In one case, a woman's abusive ex-husband brought a lawsuit against three of her friends who helped her to allegedly get abortion medication into the state and end her pregnancy. And so now you're set up with this system where, if you have an abusive ex-partner who wants to make you miserable, they can go ahead and they can sue your friends for helping you to get care.

And I'm sure the doctors then must be terrified that they're going to get prosecuted as well. All right, quick break.

Yeah. I have a guest column at my newsletter today from a woman who lost vision in one of her eyes because her abortion care was delayed in Maryland before Roe was overturned. So they had these laws in place for a really long time. And I think you're talking about trap laws, which is targeted regulation of abortion providers. And so, yeah, they did everything that they could, even in pro-choice states.

Let me ask you a question, Melissa. Is there recourse in states where it's legal to go after other states, let's say, because they're interfering with interstate commerce? If a red state is preventing you from traveling into a blue state for a procedure, couldn't that be construed as interference at some level?

Yeah, I think that's right. And I think there are a number of blue states and blue state AGs that are contemplating the prospect of dormant commerce clause challenges to the fact that essentially, these red states are imposing their own public policy preferences on the citizens of blue states who don't share them. And there was actually a very interesting case in the Serene Court a couple of terms ago, not about abortion, but, ironically, about pork production. The state of California had particular rules. Pork production.

And so what was the decision in that case?

You know what? Let me check on that. I want to make sure that that's right.

Are you? Wait. You can't Google during a podcast. That's cheating, Melissa.

No. I just want to make sure. I want to make sure that I'm right. Okay. The court affirmed the dismissal of the complaint.

Well, yeah.

I mean, same idea. Sort of a jurisdictional question. But I imagine the debate and the disposition of the case might have been really different if it had been something like abortion or guns and not necessarily pork products.

That's right. I want to get into that because that's interesting to me, because I do think there will be unforeseen consequences and cases that come out of this when you follow the logic. So I'm going to present some other logical maneuvers on this. I'm sure most of them are fallacial and make no sense, but I'd be happy to have you address them anyway. So now you have in Texas, if somebody abets someone in the driving to Illinois or whatever it is.

Supposedly.

Supposedly. Good luck.

Good luck qualifying. Here's the thing. I think you see it all the time and you see it in the context of the bounty hunter laws. These laws aren't necessarily meant to survive legal challenges. Their greatest efficacy can be in the short term, where they chill what would be otherwise lawful conduct.

Isn't pregnancy in itself, it's not a benign process. Couldn't that be considered a substantial impairment?

All of that. And so, you know, without actual definitions, it's left to the physicians to make these judgments, knowing that an enterprising attorney general, like, say, Ken Paxton, might come down really hard on them if he doesn't agree with their medical judgment. So in these circumstances, I think doctors feel like their hands are tied. They know what they would do in their medical judgment. They just don't know where medical judgment begins and the law ends.

Jessica, has that impacted people in a human way, in a real way?

Yeah, I mean, this is what I was going to say. There's what the law says, and then there's what actually happens in real life. To human beings. Yeah, to human beings, which would be nice to think about every once in a while.

Human beings, not vessels.

Not vessels. It's hard. So the example that you gave, right? Let's say someone wanted to travel. The person, depending on the county they are in Texas, several counties in Texas have passed what they're calling anti-trafficking laws, abortion trafficking laws.

Even given the mother's health being in question.

Well, this is part of the issue. As Melissa said, there's no real standard on what that means.

Wasn't there a case of a woman, there was a woman who, she, her, it was an 18-week miscarriage, I think. But the fetus was, her water had broken and wasn't going to survive. But she herself was not in that moment under threat.

They have to wait until the exact immediate threat of death.

She had to go home and get sepsis, I think. She had to go home and get sepsis.

Yes. That's Amanda Zorowski.

So here we go. So now we're going to get to, now we're going to flip the thing. And this is all informed by, I think, sort of my experience with it. And this has to do with my family, my wife. So we won't even get into IVF, which is what we had to do to have children.

I mean, this is part of what the case in Texas, where 20 women sued Texas for the extreme health issues that they had because of the abortion ban. And essentially what happened is they blame the doctors, right? They said the law is not the issue. Any reasonable doctor would have given care at that point. And this is something that they've sort of set themselves up to do for a long time.

If a woman dies in childbirth for a baby that she did not want to have, it is only the doctor that is liable. Not the state, for forcing her into that pregnancy. Melissa, is that correct?

That's basically what they're saying. The Texas Supreme Court, SCOTEX, if you will, issued a decision at the end of May on the Zorosky case. And basically said, yeah, these seem good to us. And doctors know what they're to do. And they should do it.

But even beyond that, it can create hypertension.

Everything.

Pregnancy is not a benign process.

But, John, this goes to your point about democracy. We have right now highly gerrymandered state legislatures who are making these laws. These legislatures are not comprised of physicians. They're not even comprised of women of reproductive age. It's a lot of men.

Melissa and Jessica, I want you to address this. There is no fix for a process where some women die. How do you fix pregnancy to make it so that there is no chance that a woman dies if you force someone to carry? And I understand there's at a certain point in the development of the fetus and the embryo, or the embryo to the fetus and that the rights of both tend to converge. I get that.

Especially in the U.

But anyway.

Right. And I have to say, just getting back to the scenario we were talking about before. Even if someone is able to get that health-indicated, life-saving abortion, in a lot of these states, because they've written the law in such a way that instead of giving standard abortion procedures, they're giving women C-sections or forcing them into vaginal labor even before viability, even when they know that there's no chance for the fetus's survival. And this is one of the ways that doctors are trying to protect themselves from liability. But it's also written in the laws.

John, this goes back to the point I think you made earlier. We're fighting for the shards of reproductive freedom, like the opportunity to have physicians make exigent decisions on behalf of their pregnant patients. We're not fighting upstream for what would reproductive freedom look like in an ideal world, because for now, that is gone. I mean, the court preserved the status quo on Mifepristone. There are already three states who are teed up and ready to bring that case on the ground that they have been injured.

But can't that be flipped? Melissa, can't that be flipped? So let's say there is a family that lost a daughter, a wife, because they were forced to endure a pregnancy, and they died during that pregnancy. And can't that then be flipped?

It could be flipped, but here's the thing. We're literally contemplating scenarios where our victories are built on the backs of dead women.

No, no, no. Listen, Melissa, this is an awful scenario. I am literally just trying to figure out how to battle this relentlessness.

I think that's how Roe came into being. Stories like Jerry Santoro, who was a mother of two, who was literally butchered in a hotel room trying to end a pregnancy she did not want.

Let me ask you, is there any other law that compels a person ostensibly to save someone else's life? So, the idea being, well, the abortion is to save a baby's life once it reaches a certain gestational age, and do the thing. But let's say, for instance, my kidney would, if I were to give it to somebody, it would save their life. Could I ever be compelled to do that? You're never placed in a situation, human beings, other than the military draft, where the government compels you to do something where you might lose your life or have otherwise harm.

So I don't know, outside of Prince Harry, who says in his autobiography, Spare, that he was born to allow for extra organs for Prince William if necessary. Leaving that to the side. Your example is an extreme one, but I think the anti-choice movement would put up a different example, and that example would be vaccinations. The idea that mandatory vaccinations to secure collective public health is an intrusion on your bodily autonomy that you may not want. And there can be harm.

There can be harm.

That's a pretty good one. That's right, there can be harm. I think the differences between a vaccination, even one that is very quickly rolled out in pregnancy, and the real harms of pregnancy, I think you can make a pretty clear distinction between those. But I think that's the example that they use. And in fact, Amy Coney Barrett, in the Dobbs-Earl argument, that was the example that she used.

Well, masking, I would say, is not, but vaccinations can cause harm.

Yeah, but they make that claim in those two contexts and seem completely oblivious that you could make the very same argument in the context of abortion.

All right, we'll be right back.

Right. I mean, I do think, you know, in anti-choice states, it's just constant fear. I think that's safe to say. there's just constant fear. And in pro-choice states, and I have this conversation a lot with my daughter, outside of the immediate physical impact that these bans have on people, it does something to you as a person to know that your country doesn't see you as fully human.

Yeah, that's tough. Melissa, are you finding on the horizon, are there the types of legal challenges to this? Where do you see this, with a little bit of light at the end of the tunnel, or do you think it gets darker before things begin to shape up?

I want to emphasize, you know, the limits of law here. Law is not necessarily a place for imaginative solutions to real problems. If you're in the courts, you're necessarily in a defensive posture. So I'm not thinking about legal solutions for this. I mean, I think there can be cases, but, as I said, those are the cases that are going to be built on a foundation of utter tragedy, like literally we'll be litigating from the posture of dead women.

And look, the Constitution is already gerrymandered to favor rural white areas. A hundred percent.

That's how it began. A hundred percent. I just want to say that. I understand the challenges. We truly live in a distorted democracy.

Melissa, that's phenomenal. As my daughter would say, I believe you may have eaten and left no crumbs. I think that's what she said to me.

That's what the young people say.

The young people say you ate and left no crumbs. That is an unbelievably trenchant and fabulous point, and one that has to be at the forefront. Because, to be frank, the other group is tenacious and strategic, and they understand how to overwhelm them and take out the bottom of that. Jessica, is there anything else that you wanted to add before I let you guys go?

Yeah, just building on something Melissa said, it does give me a lot of hope when I think about just how popular abortion rights are. And if we get to that place where we're focusing on the electoral bit, this is an issue that people like to talk about as if it's something the country is evenly split on or irrevocably polarized over. It's not.

We're not 50-50.

There's been several polls that have come out this year that showed over 80% of Americans don't want any government involvement at all in pregnancy. They do not want abortion to be regulated by the law at all. This is something that is really, really important to voters, and it goes across parties. So that is something as horrible as all of this is, and it is horrible to talk about this every day and to write about this and to do this work. It gives me so much hope, knowing that Americans really do understand what's at stake and how important this issue is.

Well, I thank you guys both so much. Melissa Murray, NYU Law professor, co-host of Strict Scrutiny Podcast, and my go-to. Melissa, you know you're my go-to. Whenever I get into trouble, I always say, what would Melissa Murray, how would she put this down?

I like how you said, I don't call Melissa Murray to be my lawyer, but I do refer to her as my go-to.

Law, whatever. And Jessica Valetti, founder of AbortionEveryday.com, and author of the forthcoming book, Abortion, Our Bodies, Their Lies, and the Truths We Use to Win. Guys, thank you so much for being here.

Thank you.

Wow.

Look, I don't want to say Melissa Murray blows me away every time I hear from her, but holy God. The information being held in a normal-sized head. She's got a normal-sized head, and yet all that information. And Jessica, you know, you can tell, you know, Melissa's tagging it from a legal sense. Jessica's really feeling, I think, the human burden of this.

Yeah, the personal stories, I mean, they break my heart every time. I can't wrap my head around the conversations and how this is still happening. But yeah.

Well, the way she said it, you know, look, even with these legal victories, remember, it's on the backs of dead women. And you just think, oh, God, that's right. You know, sometimes we forget in these theoretical. And now there's that. Lauren, what was that case in Idaho?

The Supreme Court. This term is meant to decide on Idaho v. United States, where Idaho is pushing back against a federal law that allows emergency abortion in the case of the life of the mother. So that's a fun-.

Wait, literally saying even if the life of the mother is in jeopardy, nope. Sorry. Yeah. Holy shit. So.

Best in the biz.

Best in the biz, for God's sake. Where can they find us?

We are Weekly Show Pod on Twitter, Weekly Show Podcast on Instagram, Threads, TikTok, and the Weekly Show with Jon Stewart on YouTube.

We're on Instagram. Yeah, we are. What would we do on Instagram? Just.

Thirst traps?

Yeah, don't look, Jon.

Yeah, I don't. I, I, unfortunately for me, it's, it's a desert out there if you're going to get pictures of me. Fantastic. Guys, thanks so much. And we'll see you all next week.