#1634 Abortion as the Tip of the Iceberg: the fight for privacy, bodily autonomy, and functional democracy are the path forward after the Dobbs decision overturning Roe v Wade (Transcript)

Air Date 6/7/2024

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JAY TOMLINSON - HOST, BEST OF THE LEFT: [00:00:00] Welcome to this episode of the award-winning Best of the Left podcast. 

Banning abortion is wildly unpopular and also one of the primary motivators for the group most strongly supporting the Republican party and Donald Trump: the Christian right, which has transformed both the party and politicians into extremists made in their own image, threatening the lives and health of millions and sacrificing democracy in the process. 

Sources providing our Top Takes today include Lectures in History, The Weeds, Technically Optimistic, Consider This and CounterSpin. Then in the additional Deeper Dive half of the show, there'll be more on criminalizing abortion, abortion extremism in the Republican party, abortion in the legal system, and what there is to do now.

Abortion and Reproductive Rights - Lectures in History - Air Date 3-16-24

MARY ZIEGLER: So, I think now often when we think of reproductive rights and justice, we think of them in the context of criminalization and criminal laws, but that's a relatively recent phenomenon. So if you go back far enough, and [00:01:00] there's a dispute about this that was reflected in the Supreme Court's decision in 2022 in Dobbs v. Jackson Women's Health Organization. the majority led by Justice Samuel Alito. suggested that in the United States, to some degree or another, abortion had always been a crime at any point in pregnancy. he might have said, or might have believed, something similar about contraception. But the reality was that for much of United States history, Either passing or implementing criminal laws regarding reproduction would have been very difficult, in part because it was all but impossible to identify when someone was pregnant before quickening, or the point at which fetal movement could be detected. Distinguishing whether a drug was a contraceptive, an abortifacient, or a drug that simply helped people who were having irregular menstruation was all but impossible, and physicians relied on highly unusual and ineffective methods to test whether someone was pregnant or not. Touching someone's abdomen was considered off limits and inappropriate at a time when women and other people who could get pregnant were often hidden behind [00:02:00] screens during examinations.

So physicians, to tell if people were pregnant, would do things like examine their noses and mouths, which you might be surprised to learn did not result in reliable diagnoses of pregnancy. 

So at this time, there was a sort of sense that there were female remedies that might influence pregnancy one way or another. And, for the most part, state laws didn't apply until quickening, the point at which abortion was most often criminalized. There were exceptions to this. There were laws, for example, poison laws that regulated drugs that could kill pregnant people early in pregnancy, particularly starting in the 1840s after a series of high profile deaths from poisonous concoctions used to end pregnancies.

There were some states that treated abortion as a misdemeanor early in pregnancy.

There was very little regulation of contraception at all until the late 19th century. And that was to change because of two independent social movements. The first was what we would view as an anti-abortion movement, though by no [00:03:00] means a fetal rights movement, that began in the mid-19th century and was led by physicians in the American Medical Association, including Horatio Storer, who's pictured here.

The American Medical Association was new at the time and medical education in general did not in any meaningful way resemble what we would see today. So there were no real licensure rules in a modern sense. Medical education was completely foreign and often not very credentialized at all. The difference between a so-called regular physician and a midwife or a homeopath selling medicines in the pages of the nation's newspapers was sometimes hard to distinguish. And the doctors in the American Medical Association were looking for a way to set themselves apart professionally. 

They also were worried about what they saw as a grievously differential birth rate. What they would have viewed as white women, Anglo Saxon Protestant women, were having fewer children. And as the 19th century continued, this disparity would only grow, so much so that when it had [00:04:00] been normal in the United States for decades for the average family to have eight children, that number would decline to three by the end of the century. And disproportionately, Storer worried, that decline was coming in families he viewed as the best American families. At the same time that immigrant families, disproportionately Catholic, were having more children.

He argued, too, that life began not at quickening, but at conception, and that only physicians like him, physicians with the expertise to understand science, knew when life began, and that this was what distinguished them both morally and professionally from the midwives and others who'd disproportionately been serving pregnant people for the centuries before.

Storer lobbied for laws that would punish not only physicians for performing abortions, but patients for procuring them, to use his word. Abortion at this time was still synonymous with miscarriage. So the crime he proposed was the crime of procuring an abortion or miscarriage. A crime that he [00:05:00] proposed should be punished the most harshly when a patient was married, because a married person having an abortion was a married person rejecting their duties to their partner, or in this case, he would say their husband, as much as it was their duties to the nation.

Storer began promoting these laws in state legislatures in the 19th century, and gradually convinced legislatures in most states to introduce laws, although they rejected some of the harshest proposals that Storer introduced. It was relatively unusual for state laws to authorize felony punishments for abortion seekers. And virtually all, with the sole exception of New Hampshire, included exceptions for the life of the pregnant person, something that Storer also was not particularly concerned about in his proposal. 

Storer wasn't alone in wanting to regulate reproduction in this era. This handsome gentleman, Anthony Comstock, was part of the picture too. Comstock's proposals were very different though. He was not concerned with what he saw as the taking of fetal life. He was concerned [00:06:00] instead with what he saw as obscenity. So, Comstock's business model first developed in New York in the late 1860s, came about because Comstock, by his own account, was a compulsive masturbator who worried that exposure to pornography was damaging the nation's fabric, for young men and women alike. He proposed a New York law that would define a much broader class of materials as obscene, everything from medical textbooks to art involving nudes, as well as abortion and contraception, which he defined as obscene, too. 

Indeed, not just abortion and contraception, but any remedy for female troubles, as he would put it. Because there was, of course, no way at the time for anyone to discern consistently whether someone was pregnant, or whether a drug acted as a contraceptive, an abortifacient, a menagogue for regulating menstruation or as a placebo or a snake oil remedy. 

Comstock's model that passed in New York in 1868 then quickly went national. With the advice of a Supreme Court Justice named William Strong, [00:07:00] Comstock went to Congress and convinced them to pass the Comstock Act, which made it a federal crime to mail any of the items listed in the Comstock Act, as well as receive them, subject to up to several years in prison and a hefty fine.

So Comstock's perspective was different. He wasn't invested in protection of fetal life. He was invested in stopping sex. He argued that the problem with abortion and contraception was that if people knew they were available, they would have what he called incentives to crime. Essentially, they would be able, as he put it, to conceal their sin because they would be able to have sex without consequences. 

And so both of these models quickly spread. There are state Comstock laws. This was an era when, for the first time, state laws of many parts of the nation criminalized birth control, many of them on Comstock's model. 

And significantly, there was always a close connection between reproductive rights and freedom of speech. Comstock's model criminalized not only the mailing of items used for things like contraception and abortion, but [00:08:00] also information about either one. So there was always a sense that telling people about how you could get these things or how you could do these things was as deeply problematic in his view as the doing of the things themselves.

Abortion and the erosion of privacy - The Weeds - Air Date 4-10-24

JONQUILYN HILL - HOST, THE WEEDS: and since the Supreme Court made its decision in Dobbs, overturning Roe v. Wade and the right to an abortion, reproductive rights have been at the center of our national consciousness. Two of the latest headlines come out of Arizona and Florida. 

NEWS CLIP: A historic ruling just handed down from the Arizona Supreme Court on abortion access in our state. The justices ruling...

Florida Supreme Court ruled the state's constitution does not protect abortion rights. The ruling allows a trigger law to go into effect in 30 days...

JONQUILYN HILL - HOST, THE WEEDS: The Florida Supreme Court ruled that a six week ban gets the go ahead. Now, that's not really surprising news. Lots of states have rolled back abortion rights in the wake of the Supreme Court overturning Roe. But something in the Florida state constitution makes this decision particularly interesting. 

IAN MILLHISER - SENIOR CORRESPONDENT: [00:09:00] So, Florida has this provision in its constitution which says that every natural person has the right to be let alone and free from government intrusion into the person's private life.

JONQUILYN HILL - HOST, THE WEEDS: Article 1, Section 23 of the Florida state constitution guarantees a right of privacy. And until the United States Supreme Court overturned Roe v. Wade, abortion had long been considered a private issue. 

Arizona has similar language in its constitution. It says, "No person shall be disturbed in his private affairs or his home invaded without authority of law." Despite this language, the Arizona Supreme Court ruled that an 1864 law that makes abortion illegal, except in the case to save the life of the mother, can take effect. That news broke while we were finishing up this very episode. 

Now, there are differences in the context for the language in these state constitutions. The language in the Arizona state constitution came [00:10:00] long before Roe, and Florida's was added post-Roe. While they're different, they have one thing in common: neither state's Supreme Court found it sufficient to protect the right to abortion. And all of this is evidence that Dobbs has shifted the very concept of privacy in the US. And that has us asking, do we still have a right to privacy? 

That's the question I posed to my colleague Ian Millhiser. He's a senior correspondent here at Vox, where he covers the Supreme Court. He's been spending a lot of time thinking about this lately.

IAN MILLHISER - SENIOR CORRESPONDENT: So let's talk about what the right to privacy is. This is something that developed really over the course of almost an entire century of various Supreme Court decisions. The idea behind a right to privacy is that there are certain parts of our lives that are private, that the government does not get to decide for us, that we, you know, decide for ourselves after talking to our own families, after praying to our own gods. And these are decisions like, [00:11:00] do I want to have a child? Who should I marry? Who are my sexual partners going to be? How am I going to raise my children? You know, all of these questions, the Supreme Court said over the course of many years, are just not decisions that the government gets to make for you. These are decisions you make for yourself. 

One of the important components of the right to privacy is, am I going to have a child, when am I going to have a child? So wrapped up in that was the right to contraception and the right to an abortion. When the Supreme Court struck down Roe v. Wade, when it abolished the constitutional right to an abortion, it claimed that this was an abortion-only decision. You know, Justice Brett Kavanaugh wrote a concurring opinion where he said, 'I'm not coming after any of the other privacy rights. I'm not coming after the right to marry. I'm not coming after the right to contraception'. And I guess the question is, how much can we trust these guys? And so the answer to your question of, do we still have a right to privacy, is we don't know. The [00:12:00] constitutional rights are only as good as the personnel that sit on the courts. 

JONQUILYN HILL - HOST, THE WEEDS: Yeah, I wonder, is the right to privacy, it seems like it's literally all about the sexy stuff. Like, it's either gender or sex or marriage. It seems like it concentrates on these specific parts of our lives.

IAN MILLHISER - SENIOR CORRESPONDENT: A lot of it is sexy stuff. It's not all sexy stuff. But I think that, if there is a unifying theory, it does tend to be stuff about the family, even sexuality. I mean, the idea is that, you know, when you have a sex partner, they are auditioning to become a member... 

JONQUILYN HILL - HOST, THE WEEDS: [laughing]...to become a member of your family.

IAN MILLHISER - SENIOR CORRESPONDENT: ...to become a member of your family, right! Exactly. And then when you have sex, there's the potential for creating children., So, you know, that is also tied up in the notion of the family. So, like, there is this idea that, you know, the way that the United States government is set up, you have the federal government and Congress is responsible for some things, you have state governments and they are responsible for other things, and I think the family was thought [00:13:00] of as another zone of autonomy, where there's some things that just don't belong to the government at all. They are family decisions. And, you know, how you raise your children, your sexuality, whether you use contraception, whether you're going to have a child at a particular moment, all of that got roped into this broader concept that we now call the right to privacy. 

Digital surveillance and reproductive rights - Technically Optimistic - Air Date

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: I should say, I know Sue personally. I'm on the board of Planned Parenthood and we've spoken a lot about the state of things, and how urgent everything feels right now. But when I talked to her for the show, I pitched a conversation about technology's role in reproductive rights. And it's not that she wasn't interested in talking about technology, it's just that she's skeptical about putting too much faith into it. She's worked too hard, and she's seen too much. 

SUE DUNLAP: I find myself being very regressive when it comes to [00:14:00] systems. We have to have redundancy, we have to have workarounds, we can't have a single point of failure. So when I was thinking about electronic health systems, I am loathe to live in a world today where there's an interdependence and a vulnerability. And when I think about data sharing, that's what I think of. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Can you give me a lived experience that you've been having of what women are actually going through right now? 

SUE DUNLAP: Yeah, one story that for me, and there's so many stories that could break your heart. This one is a patient from Texas, chronic health condition, traveling here for an abortion, "here" being Los Angeles, so from Texas to Los Angeles, Texas to California, and we asked her for her most recent blood work. And what she shared was that the second she had even a [00:15:00] whisper, an inkling that she might be pregnant, she stopped going to any doctor whatsoever, even as she had this chronic health condition that needs to be regularly managed and monitored, because she doesn't want any record anywhere in any system in Texas that could suggest that she might be pregnant.

Now that would be true on paper. That's not specific to technology, as opposed to on paper, but when we think about what that means in the context of technology, it's horrifying to me. I just don't live in that world today, and nor do the people who I see traveling across state lines for what we know is very safe healthcare, but that is criminalized, marginalized, and increasingly creating victims.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: In the United States, even before Dobbs, people seeking abortions [00:16:00] faced unique challenges. Despite the right to an abortion being enshrined in the Constitution, some states still put plenty of obstacles in the way. And now, without Roe, there are some terrifying new obstacles. 

SUE DUNLAP: One of the early data points in this post-Roe era tells us that one in three women who are pregnant or seeking abortion who find themselves in the criminal justice system by way of that pregnancy are essentially turned in by healthcare professionals or medical social workers. So, what I worry about when I try to balance what patients need in the moment and the potential for long term consequences and even criminalization is, there is no good answer, right?

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: When you criminalize abortion, you are criminalizing the people who seek abortions. It's a staggering coming together of healthcare and the criminal justice system. [00:17:00] Who is out there who could even be in a position to try and tackle this? 

MELANIE FONTES RAINER: I'm Melanie Fontes Rainer. I am the director at the U. S. Department of Health and Human Services, Office for Civil Rights.


MELANIE FONTES RAINER: For anyone paying attention, I don't think anything that's happening right now is a surprise, right? I think a lot of this was highly predictable. And so I think in some ways we've been able to try to prepare as much as we can. But there's a deficit of information when it comes to, do people even know that we exist?

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: If you've never heard of the Office of Civil Rights that's inside the U. S. Department of Health and Human Services, to be honest, I hadn't either. 

MELANIE FONTES RAINER: Every single federal agency has a Office for Civil Rights. We are the second biggest one. Our office is unique to any other civil rights office because we don't just do civil rights, right? So, civil rights is a heavy mandate. It's a big lift, like non-discrimination in health programs and activities, making sure people are treated properly and getting their entitled benefits. Because we're [00:18:00] thinking about what does it mean to be discriminated against because you're pregnant, or what does it mean to now be targeted because of who you are and have your data targeted because of who you are and the kind of health care you're seeking and where you live? But we also do privacy under HIPAA. We are the only federal office that does both of those things. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: HIPAA is the Health Insurance Portability and Accountability Act. It first passed in 1996, and it was a massive effort on the part of the federal government to do some rulemaking around personal health information, electronic medical records, in particular. You might know it from your own doctor's office. It's HIPAA that grants U. S. patients the right to view their own medical records. 

MELANIE FONTES RAINER: So first, if you, Raffi, sought to get your own medical records from your provider, you have a right under HIPAA. It's called the HIPAA right of access provision. You could go in, and for a reasonable cost and a reasonable amount of time, your provider must give you your records. So, that's like a tenet of HIPAA. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: It's [00:19:00] also HIPAA that says health care providers have to alert the government if patient data is ever compromised. 

MELANIE FONTES RAINER: A hospital system, a dentist, an insurance company, they're required to file a breach report and disclose that to the U. S. Department of Health and Human Services so that the public can know when these breaches happen. Those are the rules that protect your Protected Health Information from impermissible use and disclosure, meaning, did somebody have a permission to use and disclose this data in the first instance? Are they protecting it? Things like cybersecurity, we have a significant role in enforcement here, and whether or not there's been a breach.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Back when the law passed in 1996, Congress gave themselves three years to come up with a set of national security standards and safeguards for the use of electronic healthcare information, as well as a set of privacy standards for Protected Health Information. 

PRESIDENT BILL CLINTON: Every American has a right to know that his or her medical records are protected at all times from falling into the wrong hands, and yet [00:20:00] more and more of our medical records are stored electronically. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: That was good. It would take pressure off the states and introduce a framework, not only for privacy, but for what to do when privacy was violated. 

PRESIDENT BILL CLINTON: Today, with the click of a mouse, Protected Health Information can easily and now legally be passed around without patient's consent. I am determined to put an end to such violations of privacy. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: So, in 1999, President Clinton announced the first version of what would come to be known as the HIPAA Privacy Rule, although it wouldn't get finalized until 2002, and it wouldn't go into effect until 2003, and it would be significantly modified by the HITECH Act of 2009, as well as the HIPAA Omnibus Rule of 2013. I mean, okay, even by modern congressional standards, this is a really confusing patchwork of laws. But the HHS Office of Civil Rights has a specially designated role in the HIPAA [00:21:00] framework. 

MELANIE FONTES RAINER: And so, we enforce and implement HIPAA. The HIPAA Privacy, Security, and Breach Notification rules. The HIPAA Privacy rule gives permissions and those permissions means that covered entities, whether it's a health insurance company or a health provider or a pharmacy, they have discretion as to whether or not they believe that the permission is being met and whether or not they disclose the Protected Health Information.

Anti-abortion hardliners want restrictions to go farther. It could cost Republicans - Consider This - Air Date 5-23-24

MARY LOUISE KELLY - HOST, CONSIDER THIS: Abortion rights has been a motivating political issue for generations, and this year might be the most intense for those on both sides of the issue. NPR's Sarah McCammon reports on the anti-abortion rights activists who want to ramp up restrictions, criminalize patients who pursue abortions, and ban procedures like IVF. 

SARAH MCCAMMON: For decades, protests outside clinics that offer abortions have been a pretty common scene in many communities around the country. Less common: protests at fertility [00:22:00] clinics that offer the procedure known as IVF. 

NEWS CLIP OF PROTESTOR AT FERTILITY CLINIC: How many children are in the freezer here? How many? 

MARY LOUISE KELLY - HOST, CONSIDER THIS: That demonstration took place outside a fertility clinic in Charlotte, North Carolina last month. Dozens of protesters lined both sides of the street, as one of them preached and shouted Bible verses toward the closed front door.

NEWS CLIP OF PROTESTOR AT FERTILITY CLINIC: The fruit of the womb is the reward! 

MARY LOUISE KELLY - HOST, CONSIDER THIS: They were organized by a group of activists who described themselves as abortion abolitionists, who recently spent a long weekend in Charlotte meeting and strategizing. Matthew Wiersma, who's 32, is from Gainesville, Georgia. 

MATTHEW WIERSMA: We want to ban IVF. We want to criminalize IVF.

MARY LOUISE KELLY - HOST, CONSIDER THIS: Using the language of the anti-slavery movement, abortion abolitionists like Wiersma say they oppose all abortions, no exceptions. Many are also speaking out against IVF, at a time when most Republicans are stressing their support for the procedure. [00:23:00] 

DONALD TRUMP: I strongly support the availability of IVF for couples who are trying to have a precious, little, beautiful baby.

MARY LOUISE KELLY - HOST, CONSIDER THIS: Speaking in February, former President Donald Trump noted that most Americans, including most who oppose abortion rights, support access to IVF. His comments came after Alabama's Supreme Court ruled that embryos created through the process should be legally considered children. Republicans there rushed to pass a law designed to protect providers from legal consequences.

T. RUSSELL HUNTER: Pro-lifers are scared to death of that, because IVF has not been thought about. 

MARY LOUISE KELLY - HOST, CONSIDER THIS: T. Russell Hunter leads Abolitionists Rising, a group of activists that hosted last month's gathering in North Carolina. He accuses mainstream anti-abortion groups of being too willing to accept incremental restrictions and inconsistent in their message.

T. RUSSELL HUNTER: You can't say life begins at conception, okay, but we're going to allow abortion in the first five weeks, you know? Well, if life begins at conception [00:24:00] and you believe that human life must be protected, well, you're stuck, logically. 

MARY LOUISE KELLY - HOST, CONSIDER THIS: Hunter, who is based in Oklahoma, opposes IVF, which often produces extra embryos that are then frozen or destroyed, and he believes that embryos should have legal rights. Speaking to activists last month, Hunter said that means charging patients who seek abortions, and anyone who helps them, with murder.

T. RUSSELL HUNTER: So, we think and we know that the mother is the abortionist, or the father is the abortionist, whoever it is that's the abortionist needs to be punished, and we're not going to lie about it in order to be friends with the world, because that is precisely what the pro-life movement's done, and is doing.

MARY LOUISE KELLY - HOST, CONSIDER THIS: That's a departure from the long standing public position of most anti-abortion rights groups who've argued that women seek abortions under duress and that penalties for violating abortion laws should target providers, not patients themselves. Mary Ziegler is a law professor at the University of California, Davis. 

MARY ZIEGLER: And [00:25:00] increasingly, on the pro-choice side, you have voices of people saying, either, you know, abortion is really important healthcare, and there's nothing wrong with it, women understand what it is, and choose it, or people in the abortion storytelling world saying, you know, I felt no regret about abortion, I felt relieved, I felt happy. You know, these statements that I think abolitionists also have really weaponized. 

MARY LOUISE KELLY - HOST, CONSIDER THIS: Christine Harhoff lives in Texas and has been involved in anti-abortion activism for well over a decade. 

CHRISTINE HARHOFF: We're dealing with different types of women. 

MARY LOUISE KELLY - HOST, CONSIDER THIS: She says she's met women who were reluctant to have abortions.

CHRISTINE HARHOFF: But so many other women who are loud and proud and, you know, like we had, what was it, a year ago, two years ago?, the mothers were taking the abortion pills on the steps of the Supreme Court on national TV. You know, they were not ashamed at all. 

MARY LOUISE KELLY - HOST, CONSIDER THIS: Harhoff says she's frustrated that even after the fall of Roe v. Wade, even in [00:26:00] Texas, where abortion is banned, women are still taking abortion pills. She's been talking with lawmakers in Texas and neighboring states like Louisiana and Oklahoma, trying to promote legislation that would treat abortion as identical to homicide. 

CHRISTINE HARHOFF: And the penalty could be anything from nothing at all, if she was truly innocent, truly forced into that abortion, to a fine or community service, to yes, some jail time, and possibly even the death penalty if the court, the judge, the jury all deemed that to be an appropriate penalty for that particular situation.

MARY LOUISE KELLY - HOST, CONSIDER THIS: Harhoff's position is by far the minority. Even among abortion rights opponents, like Kristan Hawkins, president of Students for Life of America, a major anti-abortion group that opposes prosecuting patients. 

KRISTAN HAWKINS: I don't think that, you know, that's our focus or has been or will be our focus. 

MARY LOUISE KELLY - HOST, CONSIDER THIS: Hawkins describes abortion abolitionists as social media trolls who do more harm than good and don't represent the [00:27:00] mainstream of her movement.

SARAH MCCAMMON: The pro-life movement opposes throwing mothers in jail who we believe are the second victims of abortion. Does that mean that every single mother doesn't know what's happening? No, that doesn't.. There are some mothers who, I agree, likely know that abortion kills a human child. But that's not the strategy that's going to end abortion in our country. 

MARY LOUISE KELLY - HOST, CONSIDER THIS: On the subject of IVF, Hawkins' group and others have raised ethical concerns. She's described the fertility industry as underregulated. Rachel Bitecofer, a Democratic political strategist, says the line between the mainstream anti-abortion movement and the abolitionists is quite thin.

RACHEL BITECOFER: You know, if you radicalize people and tell them to gain power, and that's what Republicans did. They've been targeting those folks for 25, 30 years now with ever increasing hyperbolic rhetoric about abortion. So, if you accept that abortion is murder, then it [00:28:00] makes sense that you have pretty rigid requirements to stop it, you know, at all costs. 

MARY LOUISE KELLY - HOST, CONSIDER THIS: So far, abortion abolitionists have been mostly unsuccessful in pushing through laws that define abortion as homicide. But they've made some strides in state legislatures, including a bill that made it to Louisiana's House floor in 2022. In an interview with Time Magazine published last month, former President Trump said he'd be open to letting women who have abortions be prosecuted. He said he'd leave that question up to the states.

Abortion and Reproductive Rights Part 2 - Lectures in History - Air Date 3-16-24

MARY ZIEGLER: So this was the beginning of what would become massive anti-abortion protests outside of clinics, which were not viewed the same light as hospitals. 

It was in this era, too, that anti-abortion groups did not at all back away from the idea of fetal personhood. The overwhelming focus of the anti-abortion movement in the years after Roe was what they called the Human Life Amendment, a constitutional amendment that would change the meaning of the word "person" in the 14th Amendment to apply to a fertilized egg, or [00:29:00] any other, an embryo or fetus.

The Human Life Amendment was so important to the anti abortion movement that when members of Congress suggested it would be easier to get an amendment through that said states had the right to do whatever they wanted about abortion, anti-abortion activists overwhelmingly rejected the idea, saying it would essentially reaffirm Roe, which in their view stood not for the proposition that there was a right to abortion particularly, but that there was no right to life for a fetus. This struggle for the Human Life Amendment brought the anti-abortion movement into electoral politics, as the movement desperately strived to find allies in Congress and state legislatures who would support a Human Life Amendment. And it ultimately brought the anti-abortion movement into an alliance with the Republican Party, which in the era of Ronald Reagan came to embrace the movement and the Human Life Amendment as a potential path to power, a way to peel off conservative Catholic and evangelical Protestants who had voted Democratic often for reasons of economics, but who could be convinced [00:30:00] to change to the Republican Party as a result of the abortion issue. 

It was in this era, too, that the anti-abortion movement stumbled upon a more consequential strategy, what we would think of as kind of incrementalism, or a death of a thousand cuts. And this began with the Hyde Amendment. The Hyde Amendment was the brainchild of Henry Hyde, a long-term legislator from Illinois who proposed that Medicaid patients should be unable to get reimbursed for most or all abortions.

And at the time, the Hyde Amendment, which is part of an appropriations bill, passed with the votes of both Democrats and Republicans, at a time when abortion rights was already becoming a Democratic cause. Why that was in part was because people in the Democratic Party believed the Supreme Court would take care of it and strike down the Hyde Amendment. And it was in part because there was already less emphasis put on access for low income people than would be or really ought to be the case. 

The Hyde Amendment passed in 1976, and it had immediately significant impacts. A large percentage of people pursuing abortion in the 1970s in the [00:31:00] United States were Medicaid recipients, and by most estimates, upwards of 200 or 250,000 patients each year who otherwise would have had abortions, were prevented from doing so as a result of the Hyde Amendment. 

The Hyde Amendment also ensured that people who were low income would have to rely on an intricate network of abortion funds and private charities for money to seek out abortion. And that in some ways is what became of the grassroots of the reproductive rights movement in the immediate aftermath of Roe: they all went in to service and access work. Which is part of what I think explains the lack of somewhat of the visible grassroots in the post-Roe era. 

There was, of course, an early reproductive justice movement, too, that argued that what had become the so-called pro-choice movement, which sought to protect the right recognized in Roe, was not enough. And this movement, in part, took its inspiration from an epidemic of sterilization abuse. Women of color in this era and other people of color were being involuntarily sterilized, sometimes under existing eugenic sterilization laws, sometimes [00:32:00] under no legal authority at all. Physicians were notorious in cross parts of the South for offering what they called Mississippi appendectomies, in which patients who went in for childbirth or other services were involuntarily sterilized without their knowledge or consent, again, particularly in states like Mississippi.

The problem was particularly acute in Puerto Rico, where large percentages of women at some point in their reproductive lives were sterilized, often with questionable or no consent. And so activists, like Helen Rodriguez Trias, who's pictured here, argued that any movement for reproductive rights had to be not just a movement for freedom from the government, but a right, a movement that sought to protect people using the power of the government, right? A movement that would say the government should guarantee informed consent, the government should guarantee the means for people who want to have children to have them. And Rodriguez Trias and her colleagues founded organizations like the Committee to End Sterilization Abuse in 1974 and broader multi-issue groups like a group called CARASA or [00:33:00] R2N2, both of which were reproductive justice groups founded in the late 1970s.

But none of these groups succeeded in slowing down the attack on abortion rights and other forms of reproductive health care. Where that attack turned ironically involved two improbable things, Sandra Day O'Connor and Akron, Ohio, which don't usually go together. So Akron, Ohio was the site of an ordinance that had been marketed by the anti-abortion movement as a model for the rest of the country. And it's constitutionality ultimately came before the Supreme Court in 1980, after O'Connor had become Ronald Reagan's first Supreme Court nominee. The anti-abortion movement hated Sandra Day O'Connor. They thought she was a supporter of abortion rights and a feminist and generally just gross. And, she, to their surprise, dissented from an opinion by the court striking down this Akron ordinance, not only to say the ordinance was constitutional, but to say that Roe itself was fatally flawed. And that if Roe itself was fatally flawed, it was at least deserving of some [00:34:00] reconsideration.

So the anti-abortion movement, which had been utterly unable to get a constitutional amendment off the ground, needed a plan B. It was unable to get that constitutional amendment off the ground when Ronald Reagan was in power, when Republicans controlled both houses of Congress, and when it seemed as if Republicans had fared better than usual in state legislative elections. There was still no prospect of a personhood amendment, and no prospect even of agreement on a second best solution for the anti-abortion movement. So if there was going to be no personhood amendment, what could there be? Well, there could be control of the Supreme Court. And with control of the Supreme Court, there could be the upholding of more laws like the Hyde Amendment, which would mean less access to abortion, and a right to abortion that would mean very little or less and less in practice, a right that people would feel less compelled or energized to defend.

And with that, ultimately, too, in the long term, could be a Supreme Court that would recognize a fetus as a person, in a way that an American public that seemed to reject the principle never might. 

And so with this, the anti-abortion [00:35:00] movement proceeded to focus on incrementalism, looking for laws that could be argued to be consistent with Roe and then defending them before the courts.

And the movement too began to look for arguments that would cement its relationship with an emerging conservative legal movement.

Rakeen Mabud on Greedflation, Rachel K. Jones on Mifepristone - CounterSpin - Air Date 4-5-24


RACHEL K. JONES: So we know from decades of medical research that mifepristone is safe, effective, and widely accepted by both patients and providers. And Guttmacher's own research has established that the majority of abortions are done with medication abortions: 53 percent in 2020. 

JANINE JACKSON - HOST, COUNTERSPIN: So what would we expect, immediately and then maybe longer term, if this effort to make mifepristone unavailable, if that were to actually go through, what sort of impacts would you be expecting.? 

RACHEL K. JONES: Okay, so there's actually a lot that we don't know about what's gonna happen or what would happen if the Supreme Court were to impose restrictions on mifepristone. But again, it's important to recognize that any restrictions that are put in place are not based on medical science. [00:36:00] We do know that it would have a devastating--any restrictions that were put in place would have a devastating impact on abortion access. Again, 53% of abortions are medication abortions.

Currently 55% of women in the US--only 55 percent of women in the US live in a county that has an abortion provider, and if mifepristone were taken away, that number would drop to 51%. But it would have a big impact. There are 10 states that would have a substantially larger notable impact. So about 40 percent of clinics in the US only offer medication abortion. And so again, there's 10 states where if this was taken, if these clinics were taken away, if these providers were taken away, that substantially large proportions of people would no longer have access to abortion. And some of these are states that are actually supportive of abortion rights. States like Colorado, Washington, New Mexico. And again, just one example, in Colorado, it's currently the case that 82 percent of women living in Colorado live in a county that [00:37:00] has an abortion provider. If mifepristone were no longer available, this number would drop to 56%. 

JANINE JACKSON - HOST, COUNTERSPIN: I think it's important the way that Guttmacher links health and rights, and the way that your work shows that access, sometimes media presented as though we're talking about the United States and rights to access to abortion in the United States, but it varies very much, as you're just indicating, by region, by state, and then also by socioeconomic status. So there are a number of things to consider here in terms of this potential impact. Yeah. 

RACHEL K. JONES: Definitely. Again, we know from decades of Guttmacher research on people who have abortions, that it's people in disadvantaged populations, low income populations, people of color, who access abortion at higher rates than other groups. And so by default, any restriction on abortion, whether it's a complete ban, a gestational ban, a ban on [00:38:00] a certain type of method, on a medication abortion, it's going to disproportionately impact these groups that are already, again, at a disadvantage. 

JANINE JACKSON - HOST, COUNTERSPIN: Well, and I think particularly when we're talking about medication abortion, if you know, you know, if you never thought about it, then maybe you never thought about it, but there's a difference between having to go to a clinic where maybe you're going to go through a phalanx of red-faced people screaming at you and the ability to access that care in other ways. It's an important distinction. Yeah? 

RACHEL K. JONES: Definitely. One of the benefits of medication abortion of mifepristone is that it can be offered via telemedicine. If there's a consultation, it can be done online or over the phone, and then the drugs can be mailed to somebody. There are online pharmacies that can provide medication abortion. This means that people, right, don't have to travel to a clinic, that they don't have to, in some cases, travel hundreds of miles to get to a clinic, that they don't have to worry about child care and [00:39:00] taking off time from work.

So, again, medication abortion has the ability to-- has for a number of people made abortion more accessible. 

Abortion and the erosion of privacy Part 2 - The Weeds - Air Date 4-10-24

JONQUILYN HILL - HOST, THE WEEDS: And I guess that goes back to RBG's argument about, like, No, this is about gender discrimination versus right to privacy.

IAN MILLHISER - SENIOR CORRESPONDENT: Exactly. And this is why, you know, again, if I were to do this from scratch, I think that Justice Ginsburg is correct, that the feminist right, you know, the right to be free from gender discrimination, that is a better source of rights, like the right to contraception and the right to abortion than this right to privacy, which, again, it's developed over 100 years, it's not like this came from nowhere. But that came from an iterative process of the court exercising its own authority, relying on very vague provisions of the Constitution. 

JONQUILYN HILL - HOST, THE WEEDS: And you wrote this piece about the right to privacy, and in it, you end it with these four different ways that this can play out. [00:40:00] It's almost like a choose your own adventure, except we don't actually get to choose. There are nine people in black robes that get to do it for us, but what are those scenarios, and how would we get there? 

IAN MILLHISER - SENIOR CORRESPONDENT: I mean, I will say we do get to choose. All of this is going to be decided, potentially, by the next election, and certainly by upcoming elections. So, one possibility is that Justice Thomas wins, and the right to privacy ceases to exist. You know, no more contraceptive right, no more right to marry the person you... you know, the government could potentially throw you in jail because they don't like who you're having sex with, in that world. And, that's not going to happen now. I mean, Kavanaugh said he's not going to vote for it. But if Donald Trump is elected and he puts more Clarence Thomas's on the Supreme Court, you know, we could very easily be in that world. I mean, this is going to be decided by this election. 

There's two different versions of if Kavanaugh's view [00:41:00] prevails. So, like, if we keep the Supreme Court we have forever, and like, Brett Kavanaugh is the king of America, everything depends on what Brett Kavanaugh believes. We know that Brett Kavanaugh has said that he will not, with the exception of abortion, roll back existing rights that the court has already said is part of the right to privacy. So, he's not going to overrule Griswold. He's not going to overrule Lawrence. The court has not said that a right to gender affirming care is implicit in the right to privacy, and we just don't know where Brett Kavanaugh is going to fall on that. You know, given that he is a conservative Republican, I'm not optimistic that what he thinks is going to be good for trans rights, but, you know, I want to analyze him in a journalistically rigorous way. I have my suspicions about what he thinks about this issue, but we don't know yet. 

And then the fourth possibility is, you know, I mentioned that there are Christian right groups that want to use the right to privacy to achieve their own [00:42:00] goals. So, you know, it is entirely possible that, if Trump wins, he could just appoint a bunch of hacks to the Supreme Court, and the right to privacy becomes a weapon that's used to, say, target trans inclusive bathroom policies.

I should mention there's a fifth possibility that I didn't discuss in my piece. The fifth possibility is that Biden wins. And if Biden wins, you know, he could potentially replace Thomas and Alito, and then we have Roe v. Wade back. Then we have the full bore right to privacy back in place. 

So, you know, again, if I have one central message in this entire interview, it's that what the Constitution says does not matter. The right to privacy comes from the vaguest provisions of the Constitution. You know, if you look at what just happened in Florida, there's no doubt that Florida's privacy amendment, which is much more specific than what's in the U. S. Constitution, was enacted to codify Roe v. Wade. But there's a Republican court in Florida, and so that right doesn't exist anymore. 

[00:43:00] All of this depends on judicial appointments. And at the federal level, judicial appointments are made by the president. So, you know, the future of the right to privacy is going to be decided, potentially forever, in the next election, and certainly in elections moving forward. You know, who picks the justices will decide whether this right remains robust and whether it remains a right that we recognize as the right to privacy that we have today, or whether it becomes a weapon that's used by the Christian right.

JONQUILYN HILL - HOST, THE WEEDS: It's just all so vague and unpredictable, and I realize it would be very idealistic and, you know, probably more than a little bit naive to expect something like, Oh, let's get a constitutional amendment that says these things explicitly and codifies this right to privacy. And, you know, right now it is up to the interpretation of the Supreme Court. And clearly the makeup of that court changes over time. Like, you know, we have our eyes on 2024, but there will be a 2028 [00:44:00] and a so on and so forth until, you know, Lord knows what happens. But, what options do we have to make it a little more predictable? Like, can it be? Or is this sort of just the nature of the Constitution, the nature of the country? Like, there are just some things that will kind of always be up in the air, depending on who's in power. 

IAN MILLHISER - SENIOR CORRESPONDENT: I think one of the biggest lessons from the post-Trump Supreme Court, is that the Constitution means whatever five justices say it means. You know, we didn't lose Roe v. Wade because anything changed in the Constitution itself. The document we have now is virtually identical to the document we had when Roe was handed down. What changed was the membership of the Supreme Court. And that has two big implications. The first big implication is that politics still matters. If Joe Biden is elected in 2024, he can appoint different justices, and those different justices can give us back Roe v. Wade. 

Even if he's not [00:45:00] elected, you know, one thing that we're seeing right now that's a little surprising is that the Republicans are sort of the dog that caught the car when it comes to abortion. In Alabama, the state supreme court tried to ban IVF, and approximately five minutes later the Republican state legislature passed a law overturning that because Republicans realized just how horribly unpopular it is. Donald Trump just put out a statement where he sort of hems and haws and says, I'm very proud that I appointed the justice who overruled Roe v. Wade, but also this is a state issue now I don't want Congress to do anything. And you know, he said that because he knows that the Republican party's position on abortion is unpopular and he's unlikely to get elected if he says what they have historically said about abortion.

Now that said, I think that we should be very cautious because, again, the Constitution says whatever five justices say it means. It doesn't [00:46:00] matter if Donald Trump is going to sign a law banning abortions. What matters is if he is going to appoint justices who will ban abortions. 

So we are in this period where everything is in flux. The Republican Party is running scared. They don't want to do things in the honest way and pass a law banning abortion, but they might be able to be willing to do it in a more underhanded way, and appoint justices who will ban abortion that way.

Digital surveillance and reproductive rights Part 2 - Technically Optimistic - Air Date 5-15-24

AMY MERRILL: The mission of Plan C is to normalize the self directed method for safe, self-managed abortion. So, it started as an idea, a concept, a question: why don't we have access to abortion pills by mail in the U. S.? And it's evolved into a robust public health directory of information and creative campaigns where we suggest and introduce this information in ways that is understandable for people about ways that we can be reclaiming abortion and have agency over this reproductive health [00:47:00] need as the country spirals.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Plan C's central operation is to facilitate getting abortion pills to people who need them via the mail. 

AMY MERRILL: Abortion pills are a reality in all states. That's kind of the core information that still so many people don't know. Even if you live in this state that has shut down abortion access and all these other ways, you still have options. Pills are not a panacea, I want to say, too. There's always going to be a need for in person care. We advocate for all options to be available. That's also not the reality that we are living in in the U. S. And so our focus really is on expanding the notion of abortion, introducing this method of abortion pills and self directed care.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Plan C is also committed to providing resources and support for people who get abortions. That includes legal and financial support. But also mental and emotional support as well. 

AMY MERRILL: Part of our acknowledgment at Plan C is recognizing the transformative nature of this method of the pills and the [00:48:00] opportunity for demedicalization, the opportunity for ultimately the pills to go over the counter. And that recognition is grounded in a global context that all around the world, people in other countries are already doing this by the millions. It's very common, it's more accessible, and it's known to be a method that is safe and effective. The World Health Organization calls it an essential medicine. All of that is already true. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: As early as 2013, Amy began seeing abortion pills available through online medication vendors. 

AMY MERRILL: We call them also websites that sell pills. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Many of them were operating overseas, unregulated, and pills would take weeks and weeks to arrive. So, from early on, Plan C's goal was to provide a safer, quicker alternative to the websites that sell pills. And then... 

AMY MERRILL: I mean, the beginning of the pandemic was a wild time for everyone, but we were sitting there at our computers going, Oh my gosh, this is the moment. If there [00:49:00] was ever a moment to introduce a new idea, which is accessing pills by mail, accessing care virtually, it's now. 

But then the commerce routes started to shut down. The flights were stopping, things weren't being imported, and that became a mini crisis that suddenly shipments weren't coming into the US. And so, simultaneously, the providers were looking more and more closely at these restrictions on mailing the pills, questioning, is this really the case? I mean, this is kind of crazy. Most of our other medications, the individual could go online to an online pharmacy and place their order and just do it. And this particular one has these antiquated requirements that it must be dispensed by a provider. You know, it's very patriarchal. It's very medically unnecessary. And these inquiries were moving forward. Providers were figuring out what they could do. And then the FDA rolled back the restrictions on medication abortion, on Mifepristone, [00:50:00] which are called the REMS. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: That stands for Risk Evaluation and Mitigation Strategies, which are drug-specific guidelines put out by the Food and Drug Administration.

AMY MERRILL: So suddenly the REMS were lifted and these services popped up. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: So it's just interesting to note again, we're dealing with a convergence of two things here, which shape the future: the permissive environment around telemedicine, due to the pandemic, and the loss of privacy rights, due to Dobbs. 

AMY MERRILL: With the overturning of Roe, we absolutely updated our information to reflect the changing status, to help people understand the implications of the case and how it impacted state by state access to abortion. We are also advocating for some digital privacy recommendations on our site, or rather, we're putting them right up top. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Plan C connects with online privacy organizations, like the Digital Defense Fund, in order to provide people with concrete advice [00:51:00] for safeguarding their personal data.

AMY MERRILL: So, we've spent many years gathering all of the best tips and best practices to present them to folks along the way. So using privacy-enabled browsing, you know, browsers are typically always tracking people these days. It's gathering this history of what someone has done, where they've gone. There's another recommendation to turn off location services on your phone. That's something that has come up in the abortion issue, of people having a record of their physical location. People are using encrypted text, so there's an app called Signal that folks are using for encrypted texting. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: And real quick, in case you missed it, I talked to Meredith Whitaker, Signal's president, in Episode 2.

AMY MERRILL: And oftentimes the providers are recommending that the patient download one of these encrypted services before going back and forth. So that's often baked into the telehealth intake process. There's also recommendations around email. There is a VPN, a virtual private [00:52:00] network, that will hide your device's IP address.

You know, it's not that, I don't want to create the impression that all of these services out there are being nefarious. I mean, there's a lot we could talk about, of course, with tech and how data is being collected and used. It's business, right? We think of this in terms of keeping a clean digital footprint. It's less about surveillance and more about someone who is coming after a person who had an abortion, who's trying to build a case and is trying to collect that digital footprint in order to make the case. So, you know, these are the steps that are recommended in order for that digital footprint to be clean and that person to maintain control over their experience.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: I agree with everything you said, but at the same time, it seems desperately unfair that we have to make the care seeker do all this work. 

AMY MERRILL: Absolutely. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: And that responsibility doesn't fall somewhere else. Like, [00:53:00] these are complicated things. 

AMY MERRILL: Yeah, um, that was a big concern that came up after Dobbs. Every individual's assessing their own risk. It is an information game. The challenge is to get all this information out there to raise their awareness to the fact that there's a flip side to all of these technologies that track data. 


AMY MERRILL: I do appreciate the way that the veil is being lifted for us. I would say, like, I appreciate that actually, yeah, these conversations are happening more openly about what is actually happening with these technologies. How can we learn more about how they function so that we know what we're opting into. We have no idea what these apps are doing with our data, right? So, now I think we're in the process of swinging back to a place where we have an opportunity to be a little more conscientious about the way we're living our life with technology.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: It's better if we make explicit choices, not implicit choices. And I feel like with a lot of this tech, we've just implicitly chosen to use it and don't fully explore the trade offs that we're [00:54:00] making. 

AMY MERRILL: I love, love that description. Yep. There's ways that companies can step up. That's actually critical, I think, from a human rights lens, that companies that deal in data start to really assess the severity of the situation and take steps to proactively land on the right side of history with this stuff, you know, to protect their users from being caught up in a completely unjust, unconstitutional risk of a legal case against them for seeking their health care.

Note from the Editor on the abuse produced by abortion restrictions

JAY TOMLINSON - HOST, BEST OF THE LEFT: We've just heard clips, starting with Lectures in History, discussing the history of abortion and contraception in the US. The Weeds, in multiple clips, looked at abortion and the constitutional right to privacy. Technically Optimistic examined how data is being weaponized against pregnant people. Consider This look at the real restriction extremists. Lectures in History described the push for fetal personhood. And CounterSpin watched the media watch the court on further abortion cases. 

And those were just the top takes. There's a [00:55:00] lot more in the deeper dive section. But first, a reminder that this show is supported by members who get access to bonus episodes, featuring the production crew here, discussing all manner of important and interesting topics often trying to make each other laugh in the process. To support all of our work and have those bonus episodes delivered seamlessly to the new members-only podcast feed that you'll receive, sign up to support the show at bestoftheleft.com/support. There's a link in the show notes, through our Patreon ,pageor from right inside the Apple podcast app. If regular membership isn't in the cards for you, shoot me an email requesting a financial hardship membership, because we don't let a lack of funds stand in the way of hearing more information. 

Now, before we continue on to the deeper dives half the show, I just wanted to add in another element of restricting abortion access that is often overlooked, I think. And since a couple of articles have summed it up real nicely, I'm just going to go ahead and read a bit of each into the record here. 

So, the first is from The Intercept. "Sterilization, murders, [00:56:00] suicide: bans haven't slowed abortions and they're costing lives". So, this article says, "For women in abusive relationships, to get pregnant is to risk your life. The narrative is well-documented. A violent, intimate partner sensing the impending loss of control over his wife's or girlfriend's body, and the arrival of a competitor for her time and attention, even if he wanted the baby at first, grows increasingly possessive, volatile and assaultive. His menacing behavior erodes not just her freedom but also her will to take care of herself. She grows depressed, skips prenatal clinic visits, eats poorly, and smokes drinks and uses drugs more, all to the detriment of her own and her fetus's health. Sometimes the partner's violence turns murderous. 'Women who are pregnant or recently gave birth are significantly more likely to be killed by an intimate partner [00:57:00] than women of the same age who are neither pregnant nor postpartum,' writes the authors of a new study from Tulane university. The harder it is to end a pregnancy the more danger women are in. Looking at the states with multiple abortion restrictions alongside their rates of intimate partner homicide committed against women and girls ages 10 to 44, the researchers found a 3.4% rise in the state homicide rate with each restriction enforced between 2014 and 2020. The authors acknowledge the limits of their methodology, but extrapolate that nearly a quarter of those murdered were associated with the statutes." 

And then from the New Republic magazine article "Dobbs was a gift to domestic abusers", they bring in another element. And it says, "Abusive partners can also use state anti-abortion laws to intimidate and threaten partners who had an abortion. If/When/How operates it's [00:58:00] helpline for questions and support about abortion and the law through which it has observed the impact of antiabortion laws and legal cases. ' Before Dobbs people did contact the helpline because they feared an abusive partner could use their abortion or knowledge of a pregnancy against them', said Ling. But since, calls have increased, and with survivors " weighing the risks of their abusive relationship against their access to abortion." Along with the helpline getting more calls, Ling said, “we have seen the threats from abusers become more specific. Some have threatened to call the police on family members who help them access abortion. Other abusers have falsely claimed it is a crime to leave the state, or [that] their victim has to have their consent to get an abortion. And abusers are weaponizing the rising abortion stigma against their victims, suggesting that their decision to get an abortion will harm them in unrelated court proceedings". [00:59:00] 

So, if you weren't angry enough already, thanks to those writers for highlighting yet another consequence of abortion restrictions. And just in case there's any question, or if you need to respond to any limp objection to this criticism based on the idea that you know, Oh, well, no one intends for abuse to increase, just know it doesn't matter. Those in the grassroots who support and those in politics who ultimately vote for extremist abortion restrictions, don't get any pass on the consequences of those laws, based on maybe some of those consequences being unintended. Which, by the way is a pretty questionable proposition in and of itself when dealing with mostly religious conservatives who tend to believe in strict father morality and the hierarchical ranking of men above women. But even for those who may be genuine and feeling bad about increased abuse and murder, due to their policies, that buys you no forgiveness until you work to undo the [01:00:00] damage. As for the rest of us, the more harm caused will just act as fuel for the campaign to take our policy back in the same direction. 


JAY TOMLINSON - HOST, BEST OF THE LEFT: And now we'll continue with deeper dives on four topics. Next up, criminalizing abortion. Followed by, abortion extremism in the Republican party, abortion in the legal system, and what is there to do now?

Abortion and the erosion of privacy Part 3 - The Weeds - Air Date 4-10-24

JONQUILYN HILL - HOST, THE WEEDS: Yeah, I think this issue of privacy, you know, you name all these instances, like, you know, we have contraception, we have same sex marriage, we have same sex sex, sex outside of marriage, gender affirming care, all these different forms of healthcare, and I think this Issue of privacy is most well known in the Roe v.

Wade case, and when she was alive, Justice Ruth Bader Ginsburg was very critical of the right to privacy being the reasoning behind the Roe decision. Can you talk about what her argument was? 

IAN MILLHISER - SENIOR CORRESPONDENT: Ruth Bader Ginsburg, I mean, she was obviously a very significant judge, but probably [01:01:00] the most significant impact she had on the law was before she became a judge, you know, when she was still a lawyer, she was a very important feminist civil rights lawyer in the 1970s.

And there's a provision of the Constitution that says no one shall be denied the equal protection of the walls. That has traditionally been thought of as something that prevents race discrimination, and like, certainly the history of it, like, it's part of the 14th Amendment. The 14th Amendment was essentially the treaty.

that between the North and the South that ended the Civil War. And I mean, that was a war about slavery. So it makes sense that we think of this as a race provision, but it's broadly worded. It says no one shall be denied the equal protection of the law. Not just, you know, black people won't be denied or, you know, people of a certain race won't be denied.

And so Justice Ginsburg's insight was this is something that should apply to types of discrimination that are similar in character to racism. Sexism is similar in [01:02:00] character to racism in that, you know, it is irrational. It judges people based on traits that don't have anything to do with their ability to contribute to society.

These are just arbitrary prejudice that we've held onto for a very long time. And the Constitution should always be also protect against that kind of thing. And she successfully convinced the Supreme Court that the 14th Amendment should be read not just to protect against race discrimination, but also to protect against sex discrimination.

And she saw the contraceptive right and the abortion right as part of that broad project. You know, the idea was that a woman cannot thrive in society. They cannot, you know, achieve the same professional heights. They cannot compete in the workplace. If they are constantly under threat of being taken out of the workforce for nine months at a time or more because they are pregnant, that they need to be able to control that aspect of their life if they are going to have equality in society.

[01:03:00] And, you know, personally, I find that argument more persuasive than the right to privacy argument. I mean, I think. A contraceptive and abortive rights, they make more sense if you think of them as feminist rights. I think that that, you know, hews more closely to the text of the constitution. I also think it leads to a less freewheeling judicial power, where judges are just inventing rights on the fly.

But that's sort of the dog that did not bite. Bark in the Supreme Court's jurisprudence because the most important feminist legal decision was Craig v. Boren in the mid 1970s. It was two or three years after Roe v. Wade was decided in 1973. So the Supreme Court had not yet embraced that language of equality that Justice Ginsburg advocated for when Roe v.

Wade was handed down. And so that whole line, the right to privacy jurisprudence, sort of developed independently of the feminist jurisprudence. 

Abortion and Reproductive Rights Part 3 - Lectures in History - Air Date 3-16-24

Uh, eugenics, uh, as a [01:04:00] concept, was a term coined by Francis Galton, um, a cousin of Charles Darwin in the late 19th century. Uh, and the idea that Galton had was that if you could breed livestock to improve its genetic qualities, Why not breed, as Galton wrote, human beings to have better genetic qualities?

And exactly what eugenics would mean legally was complicated for some time. So some, uh, scholars and legal thinkers argued that there should be legal incentives for the quote unquote right sort of people to get married. Um, there were, for example, better baby contests, where the purported genetic quality of infants would be rewarded with cash prizes or apple pies.

And of course, there were much more interest in negative, what's called negative eugenics, right, using the law to prevent the quote unquote wrong people from having children. Initially, some of these laws focused on access to marriage, on the theory that if people We're for example, suffering from sexually transmitted infections, they shouldn't get married.

[01:05:00] But then, of course, reformers quickly realized that people could have children and have sex without getting married, and turned instead to compulsory sterilization laws, which are on the books, were on the books, in, uh, more than 30 states in the United States, including California, which was one of the nation's leaders in compulsory sterilization.

Uh, these laws applied to people we would now recognize as having, Mental illnesses or disabilities, but to a much larger class of persons as well. California, for example, often targeted persons who were viewed as sexually promiscuous on the theory that sexual promiscuity, particularly in women, was a sign of feeble mindedness or genetics.

Um, overwhelmingly, the people targeted by these laws were already in state institutions. Uh, they were overwhelmingly low income people. Initially, they were overwhelmingly white people, in part because of either de jure or de facto segregation, ensuring that people of color had no access to state institutions or services at all.

Um, this was to change after World War II, [01:06:00] when people of color, particularly black people, made up the overwhelming majority of sterilization victims as sterilization moved south. The eugenics movement changed the status quo when it came to abortion and contraception in a few ways. Obviously, in a sense, the eugenics movement was compatible with what had come before, because just as has been the case with Storer, Or Comstock.

The message of the eugenic movement had been that, of course it was the role of the state to control who reproduced and how. Um, albeit in a different way, the claim of authority from Eugen of eugenics was not moral as Comstock's was, or even Christian. It was, uh, it sounded in scientific expertise.

Eugenicists simply knew better than everyone else the argument went about who should reproduce. On the other hand, the idea of eugenicists was that more reproduction was not always an unmitigated good. And in fact, that certain circumstances, it may make sense for certain people not to have children at all, or not to have more children.

And that the cost of having children, not just to the individual, but to the [01:07:00] state, was something that the state could take an interest in. It was at this time that the first birth control movement organized and that movement had to varying degrees involvement in the eugenic movement itself. Um, so you see here pictured Margaret Sanger, who some of you, most of you know as the figure who coined the term birth control, the founder of Planned Parenthood, who began her career in the 19 teens connecting birth control to socialism and the rights of workers.

And transitioned in part to enli trying to enlist the support of eugenicists, who were at the time enjoyed popular backing across the ideological spectrum. Um, everyone from, uh, conservative Catholic activists to members of Congress viewed themselves as supporters of eugenicists. And Sanger, who was deeply pragmatic, believed that her cause, which she saw as an individual right to birth control, would be more popular, um, if it were embraced by eugenicists too.

Some of her colleagues, including Mary Ware Dennett, who's pictured to her left, rejected this [01:08:00] idea of courting eugenicists and instead framed birth control as an issue of democracy. Dennett argued that it was unreasonable to assume under the Comstock Act that Americans were incompetent to decide on birth control.

If the for themselves when to have children, much less when to consume information about birth control. And that it was inconsistent with the idea of democracy to patronize Americans in this way and to deny them this kind of information. The fight for birth control gained supporters outside of the white community, two prominent, uh Activists like W.

E. B. Du Bois and Mary Church Terrell, who's pictured here, endorsed the use of birth control in their communities, even as birth control, like many movements of the era, um, had ties to eugenics. The birth control movement, for the most part, didn't embrace the idea of a right to abortion at all, although precisely what it was embracing was complicated at a time when no one knew how drugs worked.

So common drugs that were marketed at the time [01:09:00] Like, uh, Miss Lydia Pinkham's remedy, for example, um, were sold as contraceptives and abortifacients and many viewed them as placebos that didn't work at all. So precisely what a right to birth control would entitle you to was ambiguous, even if no one was endorsing abortion on its face.

In fact, if anything, Sanger argued that abortions, which were dangerous at the time, one of the leading sources of maternal mortality and morbidity, would result in part because access to contraception was denied. There had also been an unspoken consensus about how criminal abortion laws would be implemented that had applied for this era.

Overwhelmingly, when an abortion was justified had been left to the discretion of physicians. who could invoke exceptions for the life of the patient. But the difference between life and health of the patient in the 19th and early 20th centuries was non existent at a time when maternal mortality and morbidity rates were high, even compared to the [01:10:00] shameful current standards for maternal mortality and morbidity that we still experience.

So the upshot tended to be that physicians were rarely prosecuted for abortion unless a patient actually died. Um, and then often were prosecuted using the dying declaration or dying words of the patient themselves. Um, competent practitioners, by contrast, were rarely prosecuted at all, and even those who did face prosecution often weren't facing long prison sentences and sometimes came back to practicing abortions after their prison time ended.

After the 1940s, this changed pretty dramatically for a few different reasons. Um, First, it was no longer easy to deny that abortions were occurring. In the 1930s, rates of contraceptive and abortion use increased exponentially during the Great Depression. Abortions were still unsafe, as was pregnancy, and entire hospital wards were dedicated to people suffering the complications of illegal abortions.

So the idea that abortion is just not something that happens here was no [01:11:00] longer possible. to maintain. Um, at the same time, prosecutors began to see abortion as more of a problem in the aftermath of World War II at a time when Americans were encouraged to have bigger families as part of the war effort and the rebuilding of the country after the war.

Um, being pro baby and having a big family was seen as a kind of antidote to communism at a time when the And the Soviet Union's embrace of smaller families and working women was seen as distinctly un American and un Christian. And conversely, abortion providers were seen as distinctly un American and un Christian as well.

Digital surveillance and reproductive rights Part 3 - Technically Optimistic - Air Date 5-15-24

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Take, for example, what happened in Nebraska 

NEWS CLIP: in the summer of 2022. A teenager in Nebraska and her mother are facing multiple charges after Facebook's parent company, Meta, turned over their private messages.

Police say their messages prove the teen had an illegal abortion. Of course, [01:12:00] 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: tech companies have to comply with law enforcement when they really are in possession of data that's been subpoenaed. Privacy centered apps like Signal get around this problem by using end to end encryption. They simply don't have the unencrypted version of the messages sent on their platform.

But even Google, whose revenue is clearly tied to surveillance advertising, is making some adjustments. In December of 2023, they stopped storing location data on their servers, claiming in a blog post that your location history is now stored right on your phone. Now some privacy watchdog groups question whether or not Google has really fully implemented this switch.

But the point is that companies really could step up, as Amy is saying. Not only would this insulate our data from law enforcement, it would mean finally taking some responsibility off of individual careseekers. So tech companies can do better. But [01:13:00] so could Congress. 

KEVIN WILLIAMS: Donald Trump campaigned on overturning Roe v.

Wade, and he successfully did it by appointing justices who in fact overturned Roe v. Wade. Now states can do whatever they want. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: This is Congressman Ted Lieu, the representative from California's 36th District. 

KEVIN WILLIAMS: And then some of these states have very aggressive Republican attorney generals. who will prosecute people who seek reproductive health care, who get abortions, and we don't think folks should be tracked on whether they went to a reproductive health clinic or in some of these states who are looking at banning contraception or who want to ban abortion.

You know, in vitro fertilization, we don't think people should be trapped if they go to an IVF clinic or if they go to a place that sells contraceptives. And that is the gist of the legislation we're trying to get through. The 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: bill is called [01:14:00] the Reproductive Data Privacy and Protection Act, and it was introduced this past March by Representative Liu and four of his colleagues in the House.

KEVIN WILLIAMS: Law enforcement can make demands of private sector companies. in a way that they wouldn't be able to do if Congress passed a law saying you can't do that. So for example, even if the tech companies, let's say, did the right thing in my view and said, look, we're not going to give you the data on this user who visited an abortion clinic or reproductive health clinic and law enforcement gives them a subpoena, well, you know what?

The tech company has complied. This proposed 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: law would prohibit this. It would ban all sorts of communication about an individual's reproductive or sexual health, whether electronic or otherwise, from being used against that individual. These incidents that we've been talking about, when someone's Facebook messages or any kind of digital data is used to criminalize pregnant people?

This bill would just outlaw all of that. 

KEVIN WILLIAMS: [01:15:00] BUTT. There's one problem. I frankly don't think it's going to happen in a Republican controlled Congress, but if the house flips next term, then I think this legislation could get passed. So, 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: beyond reminding everyone that election day is Tuesday, November 5th, what else can we do?

Elections won't change the makeup of the Supreme Court. And there's a scary possibility that the Dobbs decision was only the beginning. 

NEWS CLIP: Today's arguments not only brought hundreds of protesters on both sides of the issue, it was also the first abortion related hearing before the Supreme Court since the conservative majority eliminated the constitutional right to abortion.

Nearly two years ago, CNN 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Paul Reed, this past March, the court heard a case that has major implications for the availability of mitrione, the medication that's used in nearly two thirds of all abortions in the us. A decision is expected in June. 

MELANIE FONTES RAINER: [01:16:00] Absolutely, we're keeping a very close eye on that case. 


MELANIE FONTES RAINER: The case is not about making Mifepristone illegal or taking it off the shelves. It's rolling it back, again, to these early REMS, these restrictions, so that it would be prevented from being put in the mail by U. S. based providers. And I wish I had a crystal ball, but I don't. We'll have to, we'll have to wait and hear.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: This might be an impossible question to ask, but has technology been a net positive for reproductive health? 

MELANIE FONTES RAINER: Oh, yeah. I, I would say absolutely. I am a big, Bit of a tech optimist, but I think, yes, technology is allowing people to access information from anywhere they are. Technology is the reason this whole system of pills by mail is proliferating in the U.

S. You know, it's that same system is making abortion pills available in all states for folks living in rural areas, for folks that don't have hundreds and hundreds of [01:17:00] dollars to drive or go to an in person clinic. And so, yes, I think that is all net positive. And I also believe that technology. is best thought of as a tool to get us where we want to go.

We judge it as good or bad, depending on whether it's serving our needs or whether we feel like it's controlling us or we're controlling it, you know, but it's a tool. It's our job to be stewards of it, to figure out what we want out of it, to regulate it when it's appropriate. It's looking ahead. You know, at Plan City, we talk all the time about our vision of the future.

I sometimes feel like progressive movements in the U. S. are often just fighting against something that is going wrong or in the way or whatnot, but we really want to be envisioning the future that we want to build. And that's why I believe that this is a really hopeful conversation that truly there's a beautiful vision here of liberation, of people being more in control.

People having more autonomy over their well being, their futures, their reproductive health and outcomes. 


JAY TOMLINSON - HOST, BEST OF THE LEFT: [01:18:00] You've reached section B: abortion extremism in the Republican party. 

Texas Republicans Want To Execute Women Who Defy Them - Thom Hartmann Program - Air Date 5-30-24

THOM HARTMANN - HOST, THOM HARTMANN PROGRAM: equal protection is the phrase that the anti-abortion freaks use to describe a requirement that they want to have put into law that killing a, a fetus Or to quote the U. S. Supreme Court, an unborn child, um, is the exact same thing as killing an actual born child, or an adult, in other words, homicide. And down in Texas, the Texas Republican Party is putting together their platform this week, and one of the proposals, which looks like it's going to be built into their platform, is calling for, quote, equal protection.

Now, two other states have tried this before. South Carolina and Georgia have both tried doing the same thing. Uh, they didn't succeed in either case. Uh, these, these were actually legislative attempts in South Carolina and Georgia, and they, they tried to pass [01:19:00] laws saying that an abortion is homicide, essentially.

That, that equal protection is given to unborn children as it is to, uh, real children. Um, but this is You know, pretty straightforward. And they're right up front about it. I mean, one of the Republicans, this is Representative, State Representative, Stephanie Klick. Um, who is a Texas Republican, but she's not an anti-abortion absolutist.

Uh, attacked her primary opponent, David Lowe, who's also a Republican, who does want the Equal Protection Law to be applied to abortions. She said, quote, The legislation he prefers would give the death penalty to women who had an abortion. I don't support that. What I support is the Republican Party of Texas platform on abortion, which is the same laws that protect you and me, protect everyone else, to include pre born children.

I'm sorry, that's what he said in response. So she said, the [01:20:00] legislation he prefers would give the death penalty to women who had an abortion. I don't support that. And he says, yes, you're right. He said, what I support is the Republican Party of Texas platform on abortion, which is the same laws that protect you and me, and protect everybody else, to include pre born children.

In other words, if you get an abortion in Texas, you can get a lethal injection. You can get put to death by the state. And these are not fringe groups anymore. I mean, there was once a time when this was very much the fringe. But, no longer. I mean, since 2022, Republican lawmakers have introduced at least 26 bills calling for abortion to be considered homicide.

And women who get abortions to be subject to life imprisonment or the death penalty. Pretty much every anti-abortion leader, this is Jessica Valenti who's writing about this by the way over at her Substack [01:21:00] newsletter, Jessica. substack. com. Uh, she writes, pretty much every anti-abortion leader and organization in the country signed onto a letter last year calling for, quote, equal protection for children in the womb.

And you know, not only, by the way, this has larger implications. It's not just women who get abortions. If a woman in Texas, if this becomes law, and again, you know, this is, Texas is now the third state to suggest this should become law. Or where Republicans are suggesting this should become law. And more than 22 pieces of legislation have been introduced in various states to make this law.

None of them have succeeded so far. But if this becomes law, that fetuses have the same protection under the law as do children, actual children. And a pregnant woman is seen in a bar or restaurant having a sip of wine, [01:22:00] she could be arrested for child abuse. If she smokes a cigarette, she could be arrested for child abuse.

I mean, that's, that's where this is going. And to take it even weirder, you know, there have been several women who had, uh, the story, in fact, the stories that get a lot, you know, the most high profile stories about abortion in the media these days, are stories of women who have, Uh, such severely damaged, malformed, birth defected, uh, fetuses, that there's no way they can survive outside the womb, and yet, the Republicans want to force them to give birth, rather than have an abortion.

I mean, there's, there's, you know, we've all seen, in fact, we had one of those women on this program about a month ago, or maybe two or three months ago. Well, the Texas Republican Party. has two other pieces to their [01:23:00] platform that apply to abortion. One is that they want, uh, all children in the state to be forced to watch anti-abortion propaganda videos.

And the second is that they want the state to, quote, close discriminatory loopholes that fail to protect pre born children suspected of having a fetal anomaly, end quote. In other words, if a woman is carrying a fetus that is known to have, you know, profound birth defects that will cause it to die, they want to force her to give birth to that thing rather than have an abortion.

I, you know, I, I think just five years ago, before Trump was elected and started putting over 300 right wing judges on the courts. We would not have even imagined this was possible. This is how quickly things change. When [01:24:00] you put fascists in charge of a country. And people were amazed at how quickly Hitler changed Germany.

Or Mussolini changed Italy. How quickly Modi is changing India right now. Uh, you know, how quickly Xi changed China. We're seeing, now China didn't go from a democracy to something else, but, you know, things change, things can change really rapidly when you have really committed, uh, politicians. Meanwhile, Project 2025, now Project 2025 is, this is the plan for the next Republican president.

It might be Trump in 2025, it might be J. D. Vance in 2028, or Ron DeSantis, or whoever, you know, whoever runs for president in 2028 on the Republican side. But they want to eliminate requirements that health insurance provides for birth control, number one. Number two, they want to require insurers to cover, quote, fertility awareness based methods of family planning.

In other words, [01:25:00] the rhythm method. They want your insurance company to tell you, instead of giving you birth control pills, we'll give you a brochure explaining That there is this, you know, week long period during the, during the four weeks of your cycle when you're most likely to, uh, to become pregnant.

They also want, uh, another part of Project 2025 is calling for funding a federal study into the dangers of birth control pills. The senior researcher associate at the Heritage Foundation, who's in, leading this project around conception, Emma Waters, she said, quote, I've been very concerned with just the emphasis on expanding more and more contraception.

We want to make sure women are getting the thing that's best for them. And Trump recently said, yeah, I'm looking at banning contraception. Now, he walked that back the next day. It's possible he didn't know what the word contraception meant. But, you know, I'm [01:26:00] guessing he heard the word in a conversation.

The Trump administration also overhauled the Title 10 program, which provides birth control, STD screenings, and reproductive services to low income people. He basically ended all those services. Joe Biden reversed that. And Project 2025 calls for reversing Joe Biden's reversal. In other words, going back to where Poor people can't get birth control, can't get screened for sexually transmitted diseases, can't get any kind of free reproductive services.

Not the job of government to provide anything to poor people.

Why Trumps Abortion Video Needs Some Follow-Up Questions - Brian Lehrer A Daily Podcast - Air Date 4-9-24

BRIAN LEHRER - HOST, A DAILY PODCAST: If you took time from obsessing on the eclipse yesterday to take in any political news, you're You probably know that Donald Trump staked out a new, or is it new, position on abortion rights now that there is such a backlash, right, ever since he fulfilled his 2016 campaign promise to get Roe vs.

Wade overturned by appointing anti Roe justices to the Supreme Court. [01:27:00] He appointed three. They did what Trump promised, as you all know. And in elections and referenda ever since, voters, even in red states, have made it clear that, by and large, they want women to have the right to choose. So, a little Trump history here.

In 1999, when he was first being looked at as a potential presidential candidate, he said this on NBC's Meet the Press with host Tim Russert when asked if he supports even late term abortion rights. 

DONALD TRUMP: I'm very pro choice. I hate the concept of abortion. I hate it. I hate everything it stands for. I cringe when I listen to people debating the subject.

But you still, I just believe in choice. 

BRIAN LEHRER - HOST, A DAILY PODCAST: Trump in 1999. But when he was running in 2016, he had the memorable exchange with Chris Matthews on MSNBC, which ended like this. 

MUSIC: Do you believe in punishment for abortion, yes or no, as a principle? The answer [01:28:00] is that there has to be some form of punishment. For the woman?

Yeah, there 


MUSIC: to be 


MUSIC: form. 

BRIAN LEHRER - HOST, A DAILY PODCAST: So, in 99 he was pro choice, by 2016 he wanted women behind bars, yesterday he released a video on Truth Social which answered one question but begged several others. 

DONALD TRUMP: My view is now that we have abortion where everybody wanted it from a legal standpoint, The states will determine by vote, or legislation, or perhaps both, and whatever they decide must be the law of the land.

In this case, The law of the state. Many states will be different. Many will have a different number of weeks, or some will have more conservative than others, and that's what they will be. At the end of the day, this is all about the will of the people. You must follow your heart, or in many cases, Your religion or your faith.

BRIAN LEHRER - HOST, A DAILY PODCAST: Very confusing clip, actually, and we'll discuss why, and talk broadly about [01:29:00] abortion continuing to develop as an issue in the presidential and congressional campaigns this year with Molly Ball, senior political correspondent for The Wall Street Journal. Hi Molly, welcome back to WNYC. 

MOLLY BALL: Hi, thanks for having me.

BRIAN LEHRER - HOST, A DAILY PODCAST: So there are the things Trump said yesterday and the things he didn't say. We have more clips, but by way of background first, why did he say anything in a new video on the issue rather than just let his record of overturning Roe stand on its own? 

MOLLY BALL: Well, that's a very good question. I think he seems to want to put this issue to rest.

But as you say, the statement that he did put out raised as many questions as it answered. So it certainly didn't do that. However, he has been under a lot of pressure to, uh, take a position on the many lingering questions that the overturning of Roe v. Wade, uh, created, uh, because that Supreme Court decision nearly two years ago now did send the decision making back to the states.

It raised a lot of [01:30:00] questions about how we move forward as a nation, whether there ought to be some kind of federal legislation creating a framework for when abortion is or is not allowed, uh, how states, uh, should administer this, uh, things like medication abortion, which is currently before the Supreme Court.

Uh, there's all sorts of policy areas that, uh, And that the Supreme Court decision actually opened up and that we have seen policymakers in various states and at the federal level be engaged with and so, uh, certainly activists on both sides of this issue do not see this as a closed issue and there's a lot for, for politicians to take a stand on.

BRIAN LEHRER - HOST, A DAILY PODCAST: To take one of the things you just mentioned first, the Supreme Court case that they're currently deciding on whether to ban the abortion medication, the Priston. Has Trump taken a position on that? Do you know? 

MOLLY BALL: He has not. I have not seen anywhere where he has even commented on that. And that's one of the many, uh, outstanding questions that, that he has [01:31:00] yet to answer.

BRIAN LEHRER - HOST, A DAILY PODCAST: And on what he did say yesterday, he said, leave it to the states, but he did not say explicitly that he would oppose any kind of national restrictions if a Republican Congress were to send him some, though a lot of people are hearing it that way. Leave it to the states means no federal ban. Is it clear?

Uh, that he drew the line somewhere. 

MOLLY BALL: Absolutely not. If anything, uh, it seems like a message that was almost designed to be unclear. He has said in the past many times that he believes there could be some kind of accommodation or compromise that pleases everyone. Uh, but I think we all know that this is an issue where you, where you can't please everyone because it is so divisive, so polarizing, and because people do feel so passionately, uh, on, on all sides of this issue.

Uh, but he, he seems to have wanted to take a position that would be perceived as moderate. He's said many times, uh, that he views As a political loser for the Republican party, and that's a statement that checks out. We have seen [01:32:00] public opinion really move toward, uh, the pro-abortion rights side of this issue.

In the years since Roe was overturned, we've seen it be a very galvanizing, mobilizing issue for voters, if not always for. Uh, the Democratic Party and its candidates. Uh, and so, you know, Trump doesn't want to lose the presidential election by taking a very hard core pro life stance, and he was criticized by many voices in the pro life movement for the stand that he did sort of take, because of that, and because, as you say, there are a lot of pro life people, anti-abortion rights activists who would like to see some kind of federal limitation, who would like to see a national framework passed by Congress that would say no abortions after a certain number of weeks.

We've seen that proposed, uh, in Congress, uh, and, in fact, get a lot of Republican sponsors in the, in the Senate, uh, right up to before Roe was overturned. [01:33:00] Uh, so, Trump, as you said, strongly implied that he would not support something like that, but he did not come out and say that he would veto such a bill if the Congress were able to pass it, and that's one of the many ambiguities that his statement left.


JAY TOMLINSON - HOST, BEST OF THE LEFT: And now section C: abortion in the legal system.

Abortion and Reproductive Rights Part 4 - Lectures in History - Air Date 3-16-24

We've seen two, count them two, U. S. Supreme Court cases on abortion in one term after Dobbs told us that the federal courts were out of this game, uh, one of which, um, involves the FDA's authority to approve Mifepristone, a drug used in more than half of U. S. abortions. The case also involves a claim that the FDA never had the authority to make abortion pills available via telehealth because Anthony Comstock's law was never repealed and is argued to make it a federal claim to mail abortion related items today.

There's another case involving the Federal Emergency Medical Treatment and Labor Act. Which, uh, the Biden administration has argued requires access for abortion to patients in certain medical emergencies. [01:34:00] Uh, this claim this case also involves the claim by states like Texas and Idaho that federal law actually treats an unborn child as a patient, and that some states like California may be prohibited from providing access to emergency abortions because of the federal law, rather than required to do so.

And finally, of course, as we saw just in the past few weeks, there's the ongoing struggle for fetal personhood. Um, if you were wondering, like, what is the next Roe v. Wade for the anti abortion movement, it was and always has been fetal personhood, but now that Roe is out of the way, the campaign for fetal personhood has intensified considerably.

Um, it's reflected in state laws recognizing the personhood of fetuses for purposes like tax deductions. Um, and child support laws, and recently in a decision of the Alabama Supreme Court, um, holding that for the purposes of the state's wrongful death of a minor law, uh, a frozen embryo is a child or person, and that therefore, suits for the destruction of embryos can be brought.

Um, as wrongful death suits. Uh, these claims are all designed eventually [01:35:00] to return, ironically, not to Congress, not to state legislators, not to voters, but to the U. S. Supreme Court. Because we've seen, um, after Roe surmised, ironically, that when voters are faced with questions involving reproductive rights and justice, they tend overwhelmingly to support reproductive rights and justice.

And so instead, uh, groups that have long complained about the, So, anti democratic courts interjecting themselves into questions of reproduction are instead seeking out courts and arguing that as a matter of the Constitution's original public meaning, access to abortion, potentially access to IVF, potentially access to contraception, is itself unconstitutional.

So when people ask me sort of my favorite question is people usually not from the United States And I think a lot of people in the United States ask me, when is this going to be over? And the answer is probably never, right? Um, but I think one of the other things that's clear in the history of reproductive rights and justice is that it's always very much been a story about, uh, the health of democracy, right?

Who gets to vote, whether you get to vote at all, how money is influencing how you vote. [01:36:00] And so I think in terms of how this turns out, a good barometer will be how healthy is the democracy in the first place.

Abortion and the erosion of privacy Part 4 - The Weeds - Air Date 4-10-24

JONQUILYN HILL - HOST, THE WEEDS: All right, so what is the first court case in which privacy is the central question? 

IAN MILLHISER - SENIOR CORRESPONDENT: There have been essentially three waves of Supreme Court decisions that we now think of as right to privacy decisions, although the earliest cases didn't use that term. So the earliest cases are two cases from the 1920s called Mayer v.

Nebraska and Pierce v. Society of Sisters. And these cases dealt with essentially the right to choose how to raise your children. Mayer was a case where Nebraska passed a law that forbade schoolteachers from teaching students in a language other than English. And there was a schoolteacher who was, who was, who charged with the crime because the teacher taught the German language.

And like that that was a crime in [01:37:00] Nebraska. If that case had come up today, it would have that would have probably been struck down on First Amendment grounds. I mean, obviously, free speech means you can teach someone to speak German. But, um, the court instead saw this as part of a right to choose the upbringing of your children.

And if you want your children to learn the German language, you Send them to school where they learn the German language. Pierce was a similar case. This was an Oregon law that, it targeted all private schools, but the real target was parochial schools. It was an attempt to ban Catholic parents from sending their kids to Catholic schools.

And the court struck that down. You know, if that case came up today, it would have been struck down under the free exercise clause of the Constitution, the provision saying that you have a right to exercise your religion. But the court in the 1920s saw this as a part of this right to raise your children.

And then that was the first wave of what we now think of as right to privacy decision. 

JONQUILYN HILL - HOST, THE WEEDS: And, and that's really interesting, especially in the context of now, when [01:38:00] you're thinking about the. current parental rights movement we're seeing in a lot of states? 

IAN MILLHISER - SENIOR CORRESPONDENT: Yeah, no, I mean, the interesting thing about the early right to privacy cases being about the right to raise your children is you're seeing a divide within social conservatives and within the Christian right about what they think about the right to privacy.

Because in the second wave of right to privacy cases, these started to sweep in not just the right to, you know, choose how you raise your children, but the right to decide whether or not to have children at all. And so you're the second wave of decisions. That's Griswold, the 1965 decision involving contraception.

There were a few other contraception decisions that followed that. And then Roe v. Wade in 1973. These are right to choose whether or not to have children cases. 

JONQUILYN HILL - HOST, THE WEEDS: Yeah. Can you talk about Griswold v. Connecticut? You know, we've talked about it on the show before, but give us a refresher. Like what. What was that case and why is it important?

IAN MILLHISER - SENIOR CORRESPONDENT: Griswold is an odd decision. I think to understand Griswold, you have to [01:39:00] understand, like, what happened in, like, the 30 or 40 years prior to Griswold. The 1920s cases, Mayer and Brown, if they had been decided today, they would have been decided under the First Amendment. They would have been decided under an explicit, what's called an enumerated right that is, like, written into the Constitution.

Instead, the court invented this right that is Not mentioned in the Constitution, you know, the right to decide how to raise your children, and that's just how courts operated in the 1920s. You know, this was what was called the Lochner era. Lochner said that there was a so called right to contract, and what the right to contract was, was the right to enter into a labor contract where you're paid terrible wages and you We're ridiculously long hours.

You know, there's a right of employers to exploit their workers. That's not mentioned in the Constitution either 

JONQUILYN HILL - HOST, THE WEEDS: right to a job that sucks. Okay, right, 

IAN MILLHISER - SENIOR CORRESPONDENT: right to a job that sucks. That was essentially what what the right was that was that was created in Lochner. And [01:40:00] during the New Deal, this idea that court should be finding unenumerated rights was discredited.

And it was discredited, you know, because of Lochner, you know, because of these hot, very anti worker decisions that the court had handed down. And so Griswold is a weird decision because they want to recognize a right to contraception, but they want to make it look as little like Lochner as possible. So they have this sort of tenuous reasoning that like, well, the Constitution protects these other things that deal with privacy, you know, protects you against the police searching your home without a warrant.

And so the language that the court used was penumbras and emanations. Somewhere within the penumbras and emanations of these existing enumerated right to privacy is a broader right to contraception. There was a theory behind that. You know, the theory was that if [01:41:00] it's a crime to have contraceptions, if it's a crime to use birth control, if it's a crime to use a condom, then the police can search your bedroom or can search a married couple's bedroom for evidence of, like, illicit condom use.

For evidence of like, ooh, you've got an illicit diaphragm in there. We're gonna have to throw you in jail. Yeah, 

JONQUILYN HILL - HOST, THE WEEDS: I'm just like imagining a scenario where they're like, I need to check for an IUD, and I'm like, that sounds, that sounds terrible. No. 

IAN MILLHISER - SENIOR CORRESPONDENT: Yeah, exactly. I mean, like, that was what the court wanted to prevent, was the idea was the sort of police investigation that would have to go on in order to determine that you were violating a contraception ban would be so offensive.

Think about modern forms of contraception and, like, the sort of search that the police would have to do in order to determine that you're using it. And so Griswold, you know, the insight was that there's something so offensive about the police being able to make this kind of [01:42:00] investigation that we're just going to take it off the table.

And that was how sexuality sort of got wrapped into this right to privacy. 

Why Trumps Abortion Video Needs Some Follow-Up Questions Part 2 - Brian Lehrer A Daily Podcast - Air Date 4-9-24

BRIAN LEHRER - HOST, A DAILY PODCAST: Let me also replay the clip of Trump from yesterday, and get your take on the confusing way this ends. If we are arguing about, or not arguing about, but if we're discussing whether Trump is trying to sow as much confusion as clarity, listen carefully as he says, up to the states, but then implies that it should actually be up to to each pregnant woman, if they want to hear it that way.

DONALD TRUMP: My view is now that we have abortion where everybody wanted it from a legal standpoint, the states will determine by vote or legislation or perhaps both, and whatever they decide must be the law of the land. In this case, the law of the state. Many states will be different. Many will have a different number [01:43:00] of weeks, or some will have more conservative than others, and that's what they will be.

At the end of the day, this is all about the will of the people. You must follow your heart or, in many cases, your religion or your faith. 

BRIAN LEHRER - HOST, A DAILY PODCAST: So, did you hear that at the end, when he threw in, you must follow your heart or your religion or your faith? Uh, that makes it sound like he supports an individual's right to choose as opposed to a state legislature's right to choose for you, but I don't think that's his position.

MOLLY BALL: Interesting. I mean, I heard that more as, uh, a political statement saying you must follow your heart in terms of how you vote on this, but as we know, this is something that Trump does all the time. He, he speaks in these, these confusing and ambiguous ways or he just, you know, Blatout takes multiple positions on an issue, uh, and he counts on that to muddy the waters and to allow people to hear whatever they want to hear.

And so, uh, the hope [01:44:00] is that, you know, people sort of give him the benefit of the doubt and say, well, I think he's here and someone else can hear it completely differently. Uh, and then, you know, the, if they, for people who are looking to, to, to get to yes and voting to, for Donald Trump, it gives them sort of permission to hear whatever they want to in his various conflicting statements.

BRIAN LEHRER - HOST, A DAILY PODCAST: Yeah. We're going to talk about Florida now in this respect, Molly in brief, what just happened there? 

MOLLY BALL: I was actually in the legislative chamber in Tallahassee when the legislature passed the current six week ban in Florida. What has just happened is that the Florida Supreme Court has allowed that six week ban to go forward.

Previously, the state had a 15 week limit that also had I believe yet to be implemented, uh, pending this, the, the Supreme Court's decision. So, on, starting on May 1st, there will be a ban on abortions after 6 weeks in Florida, which is before many women even know that they're pregnant, so many people [01:45:00] consider it.

Uh, effectively a complete abortion ban. Prior to this, Florida was the only southern state that hadn't restricted abortion and had become sort of an abortion haven for that reason. But on on the basis of polling, it is the most pro choice red state. Uh, at the same time, the Supreme Court issued another opinion allowing an abortion rights ballot initiative to go on the ballot.

This is a if 60 percent of voters support it, which is a quite high bar, would allow for a right to abortion up to fetal viability, which is the limit in Roe v. Wade, about 23, 24 weeks. So many, including the Biden campaign, are hoping that this will prove a powerful motivator getting people to go to the polls and vote for abortion rights, particularly, I think, for Democrats, the fact that there will be a six week ban in place for about six months before the election.

They're hoping we'll sort of [01:46:00] demonstrate to people what it's like to live under this sort of a regime, and then they will have an opportunity to change it. 

BRIAN LEHRER - HOST, A DAILY PODCAST: And I think Michael in Miami has something to say about this. Michael, you're on WNYC, hello from New York. 

CALLER: Hey, Brian. Hey, Molly. Thank you so much for taking my call.

Brian, you've been my lifeline to New York, living in Florida for the last couple years. 


CALLER: you. So, I appreciate it. We still live in Inwood, uh, not too far. Uh, I think this is the supercharge. I don't think people really understand how supercharging this is going to be for Florida. The Senate race is only three points.

The Biden Trump race is only seven, and we need 60 percent to get this passed. Thank you. I think it's going to be such a big influx of money and energy and power into this state that I think could, I don't know if it'll flip it all the way presidentially, but I could certainly flip it for the Senate and, and particularly the fact that this six week ban is going to infect in the next few days, [01:47:00] um, and, and I think people are going to realize how their rights are being taken away.

It's very direct. We've got this right being removed and then a ballot measure right in November. It's almost perfect. It's almost It's the best thing I think could have happened to Florida. 

BRIAN LEHRER - HOST, A DAILY PODCAST: Michael, thank you very much for checking in. Call us again from down there. Molly, let me linger with you for a second on this 60 percent point.

You mentioned it. Michael mentioned it. Um, I didn't know about it. Am I hearing it right that it will take 60 percent of the vote in Florida to enshrine abortion rights? 

MOLLY BALL: That's correct. So, this measure could get a majority of the vote and still would not pass. That is the threshold for ballot measures in Florida.

So, if you recall, in Ohio, for example, the last one of these ballot measures that passed, uh, the abortion rights side did win in Ohio, but it got 57 percent of the vote. Uh, so, [01:48:00] that's a very high bar to clear, and, uh, we will see if, uh, Uh, if Florida's able to, to, to clear it. 

BRIAN LEHRER - HOST, A DAILY PODCAST: Um, it, it can work either way, right?

I guess the anti-abortion rights camp likes the fact that it's 60 percent because it takes that 60 40 majority, not 50 percent plus one. But maybe what Michael was hinting at there is that because the abortion rights proponents would need to get to 60%, it's even more of a turnout thing. Generator than it would be if it was 50 percent plus more than you think.

MOLLY BALL: It's possible I could also see an argument going the other direction that it's harder to motivate people when It's this hard to to pass something because they may not have a hope that they could actually get there We've seen this be, again, a very mobilizing issue in ballot initiatives, but not necessarily for candidates.

I covered the, the Florida gubernatorial election in 2022, when the [01:49:00] Democratic candidate, Charlie Crist, uh, was hammering this issue very hard, saying, you know, Ron DeSantis has already banned abortion after 15 weeks, and he's going to do further limits if you reelect him. DeSantis, of course, went on to win that election by nearly 20 points.

So, uh. Mm hmm. It's not necessarily clear that voters will take this and apply it to candidates, whether it's the Senate race, uh, between Rick Scott and his Democratic opponent, or the presidential race. Uh, but we, but what we have seen, uh, is that when abortion is on the ballot as an up or down issue, it does make a lot of people feel uncomfortable.

Go to the polls and those people tend to be Democrats and liberal leaning independents. So the hope is once you get those people out, you know, maybe they're not motivated to go vote for Joe Biden or vote against Rick Scott, but once you get those people to the polls, that's the way they're going to vote.


JAY TOMLINSON - HOST, BEST OF THE LEFT: And finally section D: what is there to do now?

Digital surveillance and reproductive rights Part 4 - Technically Optimistic - Air Date 5-15-24

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Through no fault of their own, Americans seeking reproductive [01:50:00] health care find themselves restricted, monitored, and under the threat of prosecution.

And because this seems so unfair, and so outside their control, It's strange that the best data privacy advice we have for them is just strong encouragement for people to take control of their data themselves. We seem to be passing the buck. We're not so much helping them as telling them to help themselves.

And as we talked about at the beginning of this episode, when we heard about Dr. Janet Vertazy's experiment to keep her pregnancy offline, opting out of mainstream internet services. can lead you to some strange places, and is itself sometimes seen as suspicious. But Director Fontes Rainer maintains that, when it comes to data privacy, you are your own best resource.

AMY MERRILL: The best advocate for my own privacy is going to be me, right? No one's going to care more about my privacy than me. Within the healthcare [01:51:00] space, we know that a lot of healthcare providers are using web tracking technologies to better understand their patient consumer populations. And in those web tracking technologies, we have some authority and we have reminded providers in particular that if you're going to use these types of technologies, take steps to be compliant with HIPAA, making sure first and foremost that you have a business associate agreement, which is basically an agreement between Google, Metapixel, these web tracking applications and the hospital, so that if there is a breach, if there is an impermissible use or disclosure of that data, it's protected.

Because if it's not, then those providers are just exposing individual protected health information, which is not compliant with HIPAA. I have limited jurisdiction, so to just like put a disclaimer, I have limited jurisdiction over that kind of data, right? So like I can't always do something. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Can I just try and make this more concrete for the people who might be listening, Director?

Are you effectively saying [01:52:00] don't use these apps? Is that basically the message I should take away? 

AMY MERRILL: I'm saying you should not be storing protected health information on your phone. In a Google app, in any sort of, you know, there was a lot of attention on period trackers when DOBS first happened, right? And a lot of steps were taken to try to get those individual apps to change how they were tracking data.

But, you know, We know that there are gaps in the regulatory authority and enforcement. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Gaps? Big enough for apps, I guess. 

NEWS CLIP: Fertility and period tracking apps have some of the most sensitive reproductive information. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: The new HIPAA reproductive privacy rule does a lot to protect people who receive out of state care.

That woman who traveled from Texas to California doesn't have to fear the results of a blood test might make it back to law enforcement in Texas. That's huge. But the data collected by birth control apps is still potentially dangerous. 

NEWS CLIP: There is no difference in the data from your reproductive [01:53:00] choices than the pair of shoes you looked at online.

It's treated exactly the same in the law right now, and that's what the problem is. 

KEVIN WILLIAMS: Leading up to DAWBS, we have been talking a lot at Planned Parenthood in and around making sure folks feel educated around what was changing within certain states. Kevin Williams 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: is the VP of Digital Products at Planned Parenthood Federation of America, where he's worked for over a decade.

KEVIN WILLIAMS: Over one in three women, plus many more folks that identify as trans and non binary, are without access in their states. And so, obviously, that is Very, very important for us to get ahead of, and, you know, we've had to really be progressive and think how to take users through this very complex matrix now of what the laws are and where access is, and it's very confusing.

It's a very challenging process. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: [01:54:00] Kevin and his team have been doing digital outreach in the face of two overlapping challenges. The suddenly remote healthcare environment of the COVID pandemic and the confusing, restrictive landscape post dops. And as both of these events led more and more patients to seek healthcare information online, he knew that Planned Parenthood had to be exceedingly cautious in how it treated personal health data.

KEVIN WILLIAMS: So birth control and period tracking seemed like something for us to 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: explore. Planned Parenthood's own fertility and period tracking app is called SpotOn, and it's been around in some form since 2016. From 

KEVIN WILLIAMS: the beginning, I'll just say, privacy and security has always been an area of focus for us. We believe that your personal health care data should never be used against you.

We don't sell data. It's very important for us, even at the ideation and design stage, to be [01:55:00] We don't collect information and sell it for advertising purposes. We don't collect the information, store it places. And I think that that is the common industry standard of collecting that information. And so what was interesting was when all of the noise In and around concerns around privacy came up.

There was a lot of focus on period trackers and folks were deleting their apps. And we had to spend a lot of time educating people around, um, understanding what we were doing was different than some other period trackers. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Planned Parenthood's app stores data locally on your phone rather than in the cloud.

KEVIN WILLIAMS: Planned Parenthood, we speak a lot about how important Privacy and security is to us. And so I think in a lot of ways, users and communities expect us to show up in this way. We've focused on thinking about accessibility, thinking about how we, uh, educate people to be empowered. I think [01:56:00] that privacy is a top priority for us and we stand by that.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Okay. So you've been talking about how some of the values of Planned Parenthood, like transparency and data privacy, like kind of make it into your work as a product designer. Which makes me want to ask you, like, how do you think about accountability here? Like, as a developer, but a developer in this, you know, particularly urgent space?

KEVIN WILLIAMS: It's a good question because we've been talking a lot in and around accountability as well. There's a real challenge on what accountability we have as an organization, providing care as a trusted brand there to support people, and then also holding big technology accountable as far as educating people on how to use these fancy devices that, you know, have the most sensitive information that they have available.

So when our team comes together thinking about what we should build and design, I mean, First and foremost, we [01:57:00] work very closely with our information securities team, our general counsel and legal advisors and folks are brought into that process right away in the beginning so that we are thinking bigger than just the moment.

We're trying to be more thoughtful about what the idea is going to look like in execution and iteration over time. You know, there's so much conversation around weaponizing of data these days, and there's a lack of trust. And so. Positioning ourself as a trusted resource is been really important to our social media and communications team, just because there's just a, you know, it's next level out there right now.

Yeah, it's a wild west. Yes, it is a wild west right now. Totally is. We've become so dependent on big technology. We really need to find a way to use this data for good. I think there's a lot of noise in and around the [01:58:00] exploitation of data, but there's some real societal shifts that that need to be observed.

And I think part of the challenge with that is what information is being collected, where it's being stored, who's monitoring it, how is it being exchanged in between and across organizations? And I just would really like to have more conversations about that. 

NJ Rep. Mikkie Sherril On Abortion Nationwide, And Campus Protests In Her District - Brian Lehrer_ A Daily Podcast - Air Date 5-1-24

BRIAN LEHRER - HOST, A DAILY PODCAST: Let's start with the judge shopping bill. Can you explain what that's about? 

REP. MIKKIE SHERRIL: Yes, so, you know, what we've seen in some of the anti-abortion tactics is judge shopping, meaning that there are certain divisions within our, uh, judicial system that have only one judge.

So for example, if you come, uh, if you bring a case to court in New Jersey, um, you don't know which judge you are going to get to hear your case. You could have a judge appointed by Biden or Obama. You could have a judge appointed by Trump or [01:59:00] Bush. You don't know. There are multiple judges that might be picked to hear your case by the assigning judge.

However, in some of these divisions, especially, you know, in some more remote areas, there is only one judge. So that you know, if you take your case to that court, you have One person that will hear it. And so that can, uh, ensure the outcome you want in certain cases. And certainly we saw that with the Mifa Prestone case.

So what my bill does is say you have to have more than one judge if you are going to bring a case that will impact the st the rights of people nationwide. So in that type of case with say, a nationwide ban on something or impacting a nationwide law. that you have to bring your case, uh, to a division or a department that has more than one judge.

BRIAN LEHRER - HOST, A DAILY PODCAST: Don't all sides in all cases judge shop if they can? And if so, how can a bill prevent it [02:00:00] in ways that would kind of advance what you're, uh, Erin Clayton, MAGA, QAnon, 

REP. MIKKIE SHERRIL: Deon Clark, Transcriptionist Quartet, enshittification, MAGA, QAnon, Deon and go to some of the most conservative judges in the nation to determine the outcome.

We want a more fair process. And certainly, they may draw a very conservative judge, but I think we want somebody to put forward a case where they are trying to make a very fair case and can't sort of game the system or determine the outcome based on where they bring that case. 

BRIAN LEHRER - HOST, A DAILY PODCAST: So, The bill would explicitly do that, how, and do you think you have enough support in the Republican House of Representatives to get that bill to the President's desk?[02:01:00] 

Work to the Senate. 

REP. MIKKIE SHERRIL: So the bill would specifically say that if you are trying to, um, bring a case that would impact people nationwide, you have to bring it into a district or division that has more than one judge, um, so that you can't sort of predetermine exactly the judge, uh, that is going to hear it.

Um, and, uh, you know, it's hard to say, we've had, uh, trouble in this Congress, I think, gaining enough support to get, um, Very non controversial things done. It's been very hard. So in this Congress, trying to find that group of support will be difficult, but I think we've seen movement in the Senate. Schumer introduced a similar bill, um, and I think that he's seen some bipartisan support there.

So hopefully we can build on that in the House, because really this is, this is something that, um, You know, when we're talking about rights, uh, that we want to protect in our [02:02:00] courts, um, you know, the very things that protect us against, um, some very conservative justices could protect people against some very liberal justices, so, or judges.

So I think this is an area where we could find, um, wide bipartisan support, and just trying to create a more fair justice system. 

BRIAN LEHRER - HOST, A DAILY PODCAST: So the MIFA Pristone case was an inspiration for this bill. I see you're also concerned about another Supreme Court case on the Emergency Medical Treatment and Labor Act.

What's that? 

REP. MIKKIE SHERRIL: So the Emergency Medical Treatment and Labor Act, um, called EMTALA often, Is a case heard, being heard before the court or just was heard before the court and we expect an upcoming decision, um, that is a case where Idaho had a trigger law, meaning that once Roe was overturned, that law would immediately go into effect, um, and it was one of the most draconian laws [02:03:00] regarding abortion care across the nation.

So, you could basically, um, You only get, as far as health care for women, abortion in the case of if you were seeing the death of a mother, um, so what EMTALA says in, and how that has been interpreted is to provide what, what is called stabilizing care, but what that really means is, look, if you are in a medical situation, if you are suffering, um, a medical problem with your pregnancy, abortion may be the way that.

The, um, the way that the medical center can treat you. And in cases such as placenta previa, um, hemorrhaging, other areas, it's really an important part of reproductive health care. We're seeing in too many cases that when doctors wait until the actual life of the mother is at stake, not just the health of the mother, they're making decisions that will put the mother at risk of [02:04:00] never being able to conceive again.

Transcriptionist Quartet, enshittification, MAGA, QAnon, Transcriptionist Quartet, enshittification, to conduct an abortion if it would save the reproductive organs of a mother and the answer was really very unclear because I think the answer is no under that law and so health care providers are not protected in that case and in Idaho you can be put in jail.

Rakeen Mabud on Greedflation, Rachel K. Jones on Mifepristone Part 2 - CounterSpin - Air Date 4-5-24

JANINE JACKSON - HOST, COUNTERSPIN: Well, if you talk to staunch anti-abortion people, the conversation is, is very rarely about science or about medicine, you know? Um, but then some of them and their media, Folks will throw around terms that sort of suggest that they're being science y, you know, they'll talk about viability or heartbeat, or they'll say it's about [02:05:00] concern about the safety of drugs.

And I just wonder, as a scientist who actually is immersed in this stuff, what do you make of the reporting on the medical reality of abortion? And would more knowledge help inform the broader conversation or is it just two kind of different conversations? What do you think? 

RACHEL K. JONES: Right, I definitely think it's two different conversations.

Like I said, we have decades of scientific medical research establishing that medication abortion is safe, effective, and widely accepted. People who don't support abortion choose to ignore the science and the safety and dig for their own factoids and, and supposed scientific facts to support their arguments.

JANINE JACKSON - HOST, COUNTERSPIN: It's so strange how the media debate always seems to start again and again at point zero, you know, as though there were no facts in the matter or, or no experience. And as though women aren't And, uh, we're looking for [02:06:00] experts on their own experience, you know? Um, well, finally, we see things like the Women's Health Protection Act, you know, federalizing the right to abortion.

I know the law is not necessarily your purview, but, you know, In terms of responding to these court moves and these state level moves, do you think that federal action is the way to go? 

RACHEL K. JONES: Certainly, that is one solution, right? The Women's Health Protection Act would enshrine the right to abortion federally.

But we also need, and especially in the current environment, I don't want to say Women's Health Protection Act is pie in the sky, but given everything that's going on right now, we also need federal and state policy makers to step up to restore, protect, and expand access to abortion. A lot of these restrictions are imposed.

I mean, quite frankly, you know, the right to abortion was removed because of Roe, and that allows states to impose pretty much any restriction that they want to. We're seeing from all [02:07:00] these, uh, different laws that are being implemented, and so it really is a lot of times at the state level, and certainly in the current environment, the state level is what we might need to focus 


And then anything you would like to see more of or less of from journalism in this regard? Thank you very much. 

RACHEL K. JONES: You know, on medication abortion, it seems like the media is actually doing a decent job of covering the issue, of acknowledging, again, the decades of research showing that medication abortion is safe, effective, and commonly used.

I guess the only issue we might have is one that you see anytime that abortion is the subject of media stories, and that is a lot of times reporters think, well, if they have to Take a fair and balanced approach. That means that they have to talk to the people who oppose abortion. And again, when this is about science and facts and research, then you don't need to talk to people who don't believe in it, don't believe in sound science, or who are going to ignore the science.

Again, decades of, of solid [02:08:00] medical research. 

Digital surveillance and reproductive rights Part 5 - Technically Optimistic - Air Date 5-15-24

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Even if you know about hipaa. You probably have at least a few misconceptions about it, according to director Fontes Rainer. 

I think there's a lot of misinformation about HIPAA in the first instance, whether it's to doctors and hospitals or patients. And I have been told from people, right, you know, oh, well, HIPAA protects me for X, or HIPAA protects my data on my phone, or HIPAA protects me when I do X, or I'm going to get my records because of HIPAA.

And some of that is true and some of that isn't true. We all do everything on our phones now, and I think a lot of people have a very unrealistic expectation of privacy and expectation of protection when they think it's just, oh, it's my medical information, so it's protected, right? 

Not right, unfortunately.

AMY MERRILL: There should be a business associate agreement in place so that data is protected, but oftentimes there isn't. So oftentimes you may be using some app on your phone that is not a HIPAA covered entity, it's not a business associate agreement, you're just using it, and so you are making yourself exposed.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: HIPAA makes many [02:09:00] concrete requirements about how healthcare providers have to treat medical records. The same is true of all sorts of private companies in the healthcare space. That's the function of these business associate agreements that the director just mentioned. But, HIPAA makes no provisions for technology companies.

AMY MERRILL: So one of the first things my office did last summer was we put out, literally, here's how to take this into your own hands even when HIPAA doesn't apply, right? Like basic things, right? Turning off, tracking things, tracking off geolocation, making sure you're not storing protected health information on your phone, on your tablet, on your devices in the first instance.

Don't store it into the Google Cloud. Don't store it into the Apple Cloud. Don't Because these things can be searchable, identifiable, and sometimes they're not protected. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: So this is the problem, and it's twofold. HIPAA goes so far, but falls short of protecting many sources of healthcare data for the 21st century American.

And in a landscape without the protections of Roe v. Wade, it also [02:10:00] became clear that HIPAA had huge gaps in it when it comes to reproductive healthcare. And when you take those two issues together, then you're at the intersection of data privacy and abortion rights. 

SUE DUNLAP: I'm gonna turn again to a story here.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Again, here's Sue Dunlap of Planned Parenthood Los Angeles. 

SUE DUNLAP: We recently had a patient here in Los Angeles who had started in Georgia, then went to South Carolina, got sent back to Georgia, then went. to Florida, then from Florida, flew to Los Angeles, all because there were various abortion limitations and bans.

The very first thing when one of our doctors came into my office to sort of explain what had happened, he said, she came with a stack of papers that made no sense. Would having had one seamless electronic health record have made her experience better? In a perfect world, [02:11:00] yes. Sure. But I can also tell you that what was contained in those papers was also informed by fears or fears.

around the limitations in each state. So what a doctor in California might expect versus what a doctor or a practitioner in a state where abortion is becoming criminalized might be able to offer are also very, very different. So, Again, I'm stuck in this in between where I can tell you what we aspire to and want isn't here today.

What should we do now? I think we have to live in both. I don't think it's a, this is the solution, health records. I think that's naive. Our patients live in a different world and that's exacerbated by dramatic differences across geography, which frankly are only going to become more intense. It just starts to create a dynamic that [02:12:00] is not going to work and isn't compatible with the beautiful vision of shared electronic health records, which is that.

Patients can travel, and they can get the best care possible. And so an electronic health record starts to become the path to transfer those disparities. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Sue reminds me that in real life, tech doesn't live in a vacuum. In a world where your own data can be weaponized against you like this, what might seem like a simple, obvious solution to a technologist, like electronic health records, becomes a huge social issue, an emblem of the loss of autonomy and surveillance.

And not just surveillance. For many Americans seeking reproductive care, simply visiting the doctor generates a dystopian digital scarlet letter. It could lead to your being fined or jailed, or to an awful self destructive cycle where in order to avoid getting arrested, you avoid seeing a doctor. Post [02:13:00] Dobbs America is a place where people have to choose.

Should I risk prosecution? Or should I risk getting sicker? And for pregnant people, the choice is even starker. States with restrictive abortion laws have made it so your data can very literally be the difference between life and death. That's post Dobbs America. But Melanie Fontes Rainer is trying to steer us out of this nightmare.

And she's trying to do that by fixing HIPAA. 

AMY MERRILL: So, in this space that we live in now in post op, a lot of reproductive health care providers, reproductive health care clinics, OBGYN facilities, they are very aware of that. Trying to misuse data, trying to track women, going on fishing expeditions, none of this is new.

Those kinds of providers are very familiar with the landscape and they know the law. Oftentimes before you have surgery, what do they do? They give you a blood test [02:14:00] to make sure you're not pregnant. And now you have a medical record, whether or not it's related to your reproductive health care, that now affirmatively states whether or not you're pregnant, that someone wants to have, that someone could track you.

And so those are the instances I worry about because your medical record through your electronic health record can be everywhere, right? I've had people tell me, you know, uh, we had a patient, she went to California for an abortion. When she went back home, just stayed at. The provider said, I see you had an abortion in California, right, and now they may hand over those records.

And so, you know, that's why we have proposed a rule to actually take it a step further. We have a proposed rule that will actually prohibit those disclosures in the first instance. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: It's called the HIPAA Privacy Rule to Support Reproductive Healthcare Privacy. Yeah, that's right, privacy's in there twice.

And back when I spoke with Director Fontes Raynor, it was just a proposal. But on April 26th, it became official. 

NEWS CLIP: Thank you for joining [02:15:00] us, uh, to discuss today's major announcement from the Department of Health and Human Services. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: The new rule protects patients and providers. Because it basically says, if reproductive healthcare was given or received in a state where that care was legal, 

AMY MERRILL: That information about that healthcare cannot be used or disclosed by that healthcare provider or health plan for an investigation to impose liability on the individual or the provider.

NEWS CLIP: There is one thing Dobbs did not take away, and that is the right of Americans to their privacy. 

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: That's HHS Secretary Javier Becerra. He's speaking at a press conference announcing the new rule, with Director Fontes Rayner at his side. 

NEWS CLIP: We took action the moment the Dobbs decision became public. We're not stopping.

AMY MERRILL: The idea, right, that me as an individual, as a human being, that I can't travel somewhere to where the healthcare is lawful to receive lawful healthcare on my dime, [02:16:00] that that's not legal and that my state thinks they own me, that is bananas. 


JAY TOMLINSON - HOST, BEST OF THE LEFT: That's going to be it for today. As always, keep the comments coming in. I would love to hear your thoughts or questions about today's topic or anything else. You can leave a voicemail or send us a text at 202-999-3991, or simply email me to [email protected]. 

The additional section of the show included clips from Lectures in History, Technically Optimistic, The Weeds, The Thom Hartmann Program, The Brian Lehrer Show and CounterSpin. Further details are in the show notes. 

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