#1430 Abortion laws are changing and so is how we talk about it (Transcript)

Air Date 7/24/2021

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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 in which we will take a look at the messaging wars over abortion, as well as the politics of supporting full abortion rights and the likely restrictions coming at the hands at the supreme court. 

Clips today are from Ordinary Equality, Democracy Now!, What's Next, CounterSpin, and Boom! Lawyered.

Changing the Way We Talk About Abortion Part 1 - Ordinary Equality - Air Date 4-7-21

JAMIA WILSON: [00:00:23] Too many people in our movement still use language that suggests  abortion is shameful. That having sex for pleasure and getting pregnant is a mistake. This language may sometimes seem subtle, but it reveals a deeply problematic seed in our movement.

Here's Renee, Bracey Sherman, the founder and executive director of We Testify, an organization dedicated to the leadership and representation of people who have abortions. 

RENEE BRACEY SHERMAN: [00:00:47] The way in which we talk about pregnancy in general, the anti-abortion movement, very much, is like, "Well, you know, you had sex, so you better have this kid, and you're punished for it."

You know, the reproductive rights movement is kind of like, "Well, you shouldn't be punished, you know, your whole life for a mistake." And it's... it needs to be beyond that. It needs to be that, like, yeah, people have sex. People have multiple partners. People are sometimes in toxic relationships. Accidents happen.

Birth control is not a hundred percent. That's okay. And abortion can be there as part of that. 

And I think that the other piece, about not wanting to talk about sexuality and pleasure, is because, we are, as a nation,  uncomfortable with this idea that young people are having sex. 

A couple of years ago, Speaker Nancy Pelosi made comments saying, " We're not really supporting abortion 'on demand.'" Which... 

She was leaning into this right wing talking point. But if we really break it down, what does "on-demand" mean? "On demand" means somebody gets an abortion when they need one. I support that! "On demand" is receiving the service, the care, the healthcare that you need. I believe all healthcare should be on demand. When someone is saying they need it, they should get it.

And so, I think, we don't need to buy into this right-wing talking point, or this framing, of what on demand means, and that it's, like, this frivolous thing, and that people shouldn't be having them all the time, that it needs to be rare. No, there will be as many abortions as there need to be, and people should be able to have them whenever they need them.

And I will support them to do that. 

JAMIA WILSON: [00:02:37] When politicians say they aren't for "abortion on demand," what they're really doing is reacting defensively to attacks from the Religious Right. Republicans accused the Left of wanting indiscriminate abortions. 

Then, rather than breaking down what that means, and sticking with an inclusive message, many on our side essentially respond with "No, we don't!" 

Sometimes even mentioning abortion can be seen as political suicide. 

RENEE BRACEY SHERMAN: [00:03:00] And that is a signal to people who have abortions, that the procedure that you had was shameful, and you probably should not talk about it. It is not a word that we should be saying in polite society, right?

That is a, actually, really large signal for us. And it feels very frustrating because all of us who shared our abortion stories have put ourselves out there so much. And we put ourselves out there to really organize and ensure that we did not have an anti-abortion president going into 2021. 

And yet the least that this president could do is show up for us by talking about our need to have abortion care with some sort of, like, with values, right?

Say, from the podium, how important it is; that you believe access to abortion is part of human rights, and it is healthcare, unequivocally. This is not an uncommon thing. He's not the only one who does this. A lot of us are afraid of using the word abortion. People will use a lot of euphemisms: women's reproductive health decisions; and women's health care; and all of these things. 

Just say the word abortion! It's gender inclusive; it says what you're talking about; and it's just one word. And it also signals that you unequivocally support it. And with that, I think what's important, with another change, is that we actually really need to start challenging our, supposedly, pro-choice legislators. You say that you're pro choice, but won't talk about abortion. Won't even say the word, right? 

Show it. If you actually believe that your constituents deserve abortion access, show us by standing up and loving us in public. Show us that you love someone who's had an abortion. It's just that simple. 

And I also think we need to say that it's not just a thing to say, the way in which we say, "Oh, I'm, I'm not racist." Prove it. "Oh, I'm, pro-choice." Prove it. I want to see you put your name on repealing the Hyde amendment. I want to see your local city council work to make sure there is money to ensure people in your city can afford abortions. 

KATE KELLY - HOST, ORDINARY EQUALITY: [00:05:16] Just think about the language many people on the left use to talk about abortion. Phrases like, "safe, legal, and rare," or "don't punish someone for one mistake." That sends a signal to folks who have had abortions. It says, "You should feel bad." 

Abortion is still seen by too many people in our movement, even those on our side, as politically and socially toxic. Whether or not we realize it, the language we use, and our reluctance to bring it up, reinforce that it's true, and let the other side weaponize it. 

Controlling Women With Roe v. Wade at Risk, Authors Say Move Past Court to Save Reproductive Rights - Democracy Now! - Air Date 7-13-21

AMY GOODMAN: [00:05:48] As we turn now to another right Democrats face mounting pressure to preserve: women's right to control their own bodies and choose to have an abortion. Advocates note president Biden has not publicly said the word "abortion" once since he became president. Until 2019, he supported the Hyde amendment, which bans federal funding for abortions and forces Medicaid patients in most states to pay for their abortions or stay pregnant because they can't afford the procedure. Well, on Monday for the first time in four decades, a key house subcommittee cleared a spending bill for the Department of Health and Human Services without including the Hyde amendment.

This is appropriations committee Chairwoman Rosa deLauro. 

REP. ROSA DELAURO: [00:06:30] I know that this is an issue on which many of us disagree. But regardless of the original intent of Hyde, it has disproportionately impacted women of color. And it has ultimately led to more unintended pregnancies and later riskier and more costly abortions. Quite frankly, allowing the Hyde Amendment to remain on the books is a disservice, not only to our constituents, but also to the values that we espouse as a nation. We are finally doing what is right for our mothers, our families, our communities, by striking this discriminatory amendment once and for all. 

AMY GOODMAN: [00:07:09] This comes as the now-ultraconservative Supreme Court is set to review a Mississippi law intended to challenge Roe v Wade that would ban abortion after 15 weeks of pregnancy. If Roe v Wade does not survive, can reproductive rights be preserved without it? 

For more, we're joined by the co-authors of a new book that addresses this question just out today. It's titled Controlling Women: What We Must Do Now to Save Reproductive Freedom. In Philadelphia, Kathryn Kolbert joins us, longtime public interest attorney who argued the landmark case of Planned Parenthood v Casey before the Supreme Court in 1992, which is credited with saving Roe v Wade. And in New York, Julie Kay is a human rights attorney who has argued for abortion rights internationally, including before the European Court of Human Rights, in A, B and C v. Ireland, which prompted the liberalization of Ireland's abortion law. We welcome you both to Democracy Now! 

Kitty Kolbert, Let's begin with you.

We have a democratic president, Democrats control the Senate and the House yet president Biden has not said the word "abortion" since becoming president. Can you talk about the significance of this and what you think has to happen right now, if you believe Roe V. Wade were to be overturned and if it isn't.

KATHRYN KOLBERT: [00:08:33] Thanks, Amy. It's great to be here. And, let me just say, I think it's, more important for the president to do the right thing, not to talk about it. So I'm not disturbed by the fact that he hasn't mentioned the question of abortion. And I do think that the fact that the efforts to repeal the Hyde amendment are going through Congress are a very good thing. But let's remember that that bill has a long, long way to go. It has to get through the House and the Senate, and there are not currently sufficient votes to support a Hyde-free bill. So we have a long way to go. 

Let's go back though, to the more important question is what's the Supreme Court going to do around this issue. And I think it's very, very likely that the court will either eradicate the right to choose abortion as we now know it completely, or so undermine it to make it meaningless for most of American women. And that means that we as a nation need to stand up and make changes both at the state level, and in Congress to ensure that our rights are protected. And unless we do so, unless we change tactics, unless we go forward and with a new vision of what's possible, we're going to be in for a very, very, very, difficult period of time.

AMY GOODMAN: [00:09:51] Can you explain the Hyde amendment? 

KATHRYN KOLBERT: [00:09:54] Sure. So the Hyde amendment is a rider to an appropriations bill. It prevents poor women, those who collect Medicaid funding, from obtaining an abortion, and there are Hyde-like restrictions on a whole range of federal laws that prohibit, for example, women in the military and women in the Peace Corps and a range —anyone who receives essentially, federal funding for their healthcare -- from obtaining abortions. And what this means is, is that the ability to have a baby is paid for, the ability to do every other type of healthcare is paid for, except abortion. And what that means for poor women is they don't have the means to obtain the service. It is extremely discriminatory against poor women, young women, women of color. And it means that their ability to exercise the choice they want is prohibited. 

AMY GOODMAN: [00:10:49] This is justice Ruth Bader Ginsburg speaking during her 1993 Supreme Court confirmation hearing.

JUSTICE RUTH BADER GINSBURG: [00:10:57] [You asked me about] My thinking about equal protection versus individual autonomy. And my answer to you is, it's both. This is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices. 

AMY GOODMAN: [00:11:37] Ruth Bader Ginsburg was unapologetically pro-choice. She was confirmed 96 to 3. That was 1993. Kitty Kolbert, in 1992, you made your second appearance before the US Supreme Court arguing Planned Parenthood v. Casey, the landmark case widely credited with saving, Roe v Wade with what has been called one of the most audacious litigation strategies in Supreme Court history. Can you lay that out? What it is, how you argued this? 

KATHRYN KOLBERT: [00:12:16] Well, let's say, Amy, that what happened in 1992 is being replicated now. We had at the time believed that Roe was going to be overturned. And in fact, there were five votes at the time to repeal Roe to totally eliminate it. It was only the last-minute change by justice Kennedy that led to what we now know as Planned Parenthood v. Casey. And what that case did, is it established that you had a right to have an abortion up until the time of viability. But states had a lot more power to restrict those rights. And over the years, they've chipped away and chipped away and chipped away what we now think of as the right to choose abortion. And what that's meant is many, many women, particularly poor women and young women have been unable to obtain services in states all across the country.

As the court has gotten more conservative, we're likely to see not only a replication of that, but at this point, I think it's absolutely clear, there are six clear votes on this court to eliminate Roe, send the question back to the states. And then we are back to a state-by-state question, state legislatures will have tremendous power to ban abortion. And we estimate that about a third of the states in this country will ban abortion should the court give them the right to do that. 

AMY GOODMAN: [00:13:42] This is how you began your opening argument in the U.S. Supreme Court. 

KATHRYN KOLBERT: [00:13:48] Whether our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case.

Since this court's decision in Roe v. Wade, a generation of American women have come of age secure in the knowledge that the Constitution provides the highest level of protection for their childbearing decisions. This landmark decision, which necessarily and logically flows from a century of this court's jurisprudence, not only protects rights of bodily integrity and autonomy, but has enabled millions of women to participate fully and equally in society.

The genius of Roe and the Constitution is that it fully protects rights of fundamental importance. Government may not chip away at fundamental rights, nor make them selectively available only to the most privileged women. 

AMY GOODMAN: [00:14:42] That's Kitty Kolbert, arguing before the U.S. Supreme Court. In your book, Controlling Women, Kitty, you say you did not expect to win. 

KATHRYN KOLBERT: [00:14:53] I did not. Our entire strategy was built on the view that there were five votes to overrule Roe, that the question would become a political one. We wanted to force that issue before the 1992 election, so that Bill Clinton could be the president and we could pass federal legislation to protect the right.

So we were very, very surprised. But I think the lesson now, it's 20-some years later, is that the court has incredible power to eliminate the constitutional rights we hold dear. And they are poised now to do so again. And if that happens, we as a movement need to be prepared to win back those rights in state courts, in the state legislatures and in Congress. We can't sit idly by as we see these rights being taken away. And that's really the key here, is what do we do need to do now to make sure that our rights are safeguarded going forward?

Changing the Way We Talk About Abortion Part 2 - Ordinary Equality - Air Date 4-7-21

KATE KELLY - HOST, ORDINARY EQUALITY: [00:15:55] Our message needs to be precise and intentional. Just as the Right's movement was when they created this debate in the first place. Progressives and reproductive rights advocates tend to get passionate in the heat of the debate and lose sight of that fact.

For example, one common approach is to point out when anti-choice people are being hypocritical. How many times have you heard a progressive on Twitter say something like, "You're  pro-life, but you're also pro-death penalty! Such a contradiction!"

 It's infuriating when the right spouts contradictory views. I get that. So it can be tempting to call it out when you see it. But Anat says that tactic isn't actually effective when you're trying to convert the movable middle. 

ANAT SHENKER-OSORIO: [00:16:37] The hypocrisy argument doesn't work because our activists will repeat it, our activists get excited about it, but our base isn't particularly excited about it, because it's a process argument, and not an outcome argument. Any general process arguments are duds. We need to be arguing about what the outcomes that our policies will deliver. So that's one thing. 

The second thing is, in making the hypocrisy argument, you, by definition, have to cede the moral high ground, because instead of talking about what you stand for, what you believe in, what you want to see happen in the world, now, you want to say "He said this yesterday, and now he said this today, and he said this, and then he said that," when, in fact, that's taking you off of your message. I mean, that's sort of the fundamental thing is that we need to say what we're for. 

And instead of saying what we're for, we get sucked in, we're like cats with a laser pointer. And we were that anyway, but during T**** it was, like, laser pointer, plus speed. It was like, "Wait, he said this? Wait, he said that? Wait, he said this? Wait..." You know? And we're just constantly chasing after them, and therefore amplifying what they say in our earnest desire to talk about how completely and totally egregious and horrendous it is.

JAMIA WILSON: [00:17:59] In the end, you can't shame the shameless. So the real goal of our message should be talking about what we're for, not constantly reacting to egregious things people on the Right are saying. Again, it's about being proactive and independent, not just defensive and reactive. They aren't trying to wage a war based on facts.

KATE KELLY - HOST, ORDINARY EQUALITY: [00:18:16] We've talked a lot about what not to do when putting your message into the world, and talking with anti-abortion people. But what should we do? Anat mentioned that we should build on common beliefs to create empathy, but what does that look like in practice? 

ANAT SHENKER-OSORIO: [00:18:32] Most of us know, all too well, the pain of seeing a loved one struggle with the pregnancy they longed for that slipped away. Someone you were counting down the days to meet only to learn they would never survive. A pregnancy you were too broke, too sick, too scared, or simply not ready to continue. A pregnancy that would endanger all your struggling to provide for the children you already have. 

Someone you love might need an abortion someday. You can help ensure that, when that day comes, they can get the care they need. 

Basically, to make people remember and understand that pregnancy is something that happens to lots of people. Not all people, but lots of people. And pregnancy can feel all sorts of different ways. And it can go all sorts of different routes, and all sorts of different things can happen in a pregnancy.

And that includes, for example, as you already know, the massive silence, and therefore stigma around miscarriage, which is incredibly common. The various kinds of developmental delays and disabilities that can be discovered in utero. All sorts of things happen in life. And all sorts of things happen in pregnancy.

And I think that, until we normalize this bigger story of, pregnancy is a thing that happens in many people's lives, it can take all different forms, it can take all different paths, it can come from all different sources, it can raise all sorts of different emotions. And the person who is pregnant is in the role of deciding what's going to happen.

So that's one approach. 

The other approach is to embrace something that we've been... we've used with great success on other issues, which is something we call the "Race Class Narrative." 

And that approach would sound like this. For example: "No matter what we look like or where we live, most of us believe that we should decide for ourselves whether or when to have children."

So there's that opening shared value. 

"But today, a handful of politicians pass laws that destroy our freedoms, undermine our rights, and endanger our futures. They pass laws that force us to struggle to simply make ends meet, or to care for our families, and then shame and blame us for the hardships they create.

"And while we're busy fighting for our most basic rights, they hand the money they take from our healthcare, our schools, and our kids' futures to their corporate donors. Someone you love might need an abortion someday. 

"A handful of politicians are trying to make us shame and blame women, people struggling to make ends meet, new immigrants, black people, whoever it is they can point their finger at, to distract from their attempts to destroy our freedoms, and from their failures to make sure we can get and stay well.

"They turn abortion into an issue, because they hope that we'll look the other way while they dismantle the childcare every single one of us needs, they destroy the public schools that our children rely upon, and they refuse us the basic knowledge and protections that would help us not get pregnant in the first place. 

We see through their lies, we see through their distractions, and we choose to treat every single person, no matter what they look like, where they come from, or what kind of plumbing they have, as an equal, with the full right and ability to decide for themselves, whether and when they become parents."

KATE KELLY - HOST, ORDINARY EQUALITY: [00:22:00] Not everyone is going to be persuadable, but we will have to confront people that disagree with us and attempt to convince them if we want to push our political argument forward.

ANAT SHENKER-OSORIO: [00:22:09] So, one of the first things that you have to do is, you have to correctly identify the people you cannot have. And you have to not use them as a litmus test of whether or not your messaging is "working." They're your opposition for a reason; they should dislike what you are saying. 

Because again, the only way that they like what you're saying, and probably there is no way, on abortion, is for you to basically not say what you actually think. In which case, you don't actually win. You're not winning your thing. You're either doing, like, "Puppies are cute," and people are, like, "Yes, I agree. Puppies are cute." But you're not advancing a political argument.

Like you're not doing anything. You're just spinning your wheels. Or you are inadvertently reinforcing the other side, per the safe, legal, rare example.

JAMIA WILSON: [00:22:53] If you're talking to someone you've identified as persuadable, someone who isn't self-interested, it's important to remember that they actually believe what they're saying, however wrong it may be, Anat modeled what finding common ground could actually look like. 

ANAT SHENKER-OSORIO: [00:23:06] So, with folks that are not the committed opposition, they are religious, they are not hypocrites, they have truly felt beliefs, they're not, like, a mastermind of manipulation and pretending that this is their issues so that they can actually, like destroy cities, and destroy schools, and destroy people's lives; they genuinely think this. I think, again, it's a question of nonjudgmental listening, and of saying, if you're having a, one-on-one, like, "In your heart of hearts, what do you hope would happen in the world, when someone was struggling, when someone had sex, for whatever reason, they had sex because they were forced, or coerced, because they absolutely were excited to, and wanted to; because they had been given misinformation about, you know, they... they bought the story that you can't get pregnant your first time, or you can't get pregnant when you're breastfeeding. And they believed the thing that wasn't true. If it were up to you, what would you have happened?" 

And I'm guessing they would say, "Uh, what I would want to have happen is, I would want that person to carry the child to term. And then I would want them to give it up for adoption." That's my guess, as to what they would say, you know, if they don't want it.

And what I would say to that is, "I hear you, you know? I would just love us to be in a place where every single child in this country had the care, the love, the food, the shelter, the toys, the imagination, the jokes, the backyard, you know? The like beautiful park, The... the silly childhood song, the ice cream cone on their birthday that I want for my own kids. That's the kind of America that I can really get behind and really work toward. And I think that you feel the same. That's what I've heard from you. That's what I've experienced, you know? I think that that's what God wants. I think what God wants for us all is to be able to live a happy whole life.

"And I think that the way that we get there is ensuring that we equip everyone with the tools to make their very best choices about whether and when to become a parent, and to understand how to do that." 

I think it's coming from that place, starting off with, how would we like children to be treated in our country? How would we like childhood to be experienced?

Does Roe v. Wade Stand A Chance Part 1 - Whats Next - Air Date 5-26-21

MARY HARRIS - HOST, WHAT NEXT: [00:25:54] If you want to zoom in on one state that's laser focused on restricting abortion, and think about how those restrictions could play out over the next few months and years, Mark says Arkansas is a pretty good place to start. Arkansas already put in place a trigger law a couple years back that would automatically ban abortion if Roe V. Wade got overturned, but this year arkansas instituted an abortion ban all of its own, in violation of existing legal precedent. 

MARK JOSEPH STERN: [00:26:24] That ban is so extreme, and beginning at fertilization an embryo is protected by the law. Even if the embryo is created through an act of rape the law says there's nothing that the woman can do, she has to carry that pregnancy to term. 

MARY HARRIS - HOST, WHAT NEXT: [00:26:42] And what's interesting about that is that a huge percentage of fertilized eggs do not go on to become babies or embryos or anything else. Women get their period or they miscarry, and some of them never knew they were pregnant in the first place. 

MARK JOSEPH STERN: [00:26:59] Yes, and this is something that we'll see after Roe is reversed, that we already see in countries where abortion is banned, which is criminal investigations of miscarriages. Not uncommon in countries with really extreme, restrictive abortion bans, like central America for instance, where prosecutors get involved when a woman, say, goes to the hospital with a miscarriage and investigate whether that miscarriage was induced, and if so, then this is a criminal case. It's no longer a personal medical issue, it's a matter of a legal, natural human under the law dying under potentially suspicious circumstances. 

MARY HARRIS - HOST, WHAT NEXT: [00:27:34] Have we already begin to see prosecutors wrestling with that ambiguity here in the United States? 

MARK JOSEPH STERN: [00:27:42] Absolutely. And this is something that anti-abortion advocates don't like to talk about, but we have already seen a number of prosecutors try to work around Roe v. Wade to prosecute women who terminate their own pregnancies. So in states like Georgia and Idaho, we have seen women who have minimal access to abortion clinics order drugs online, induce their own abortions, and prosecutors will file criminal charges against them. They will go to the hospital and handcuff them. They will throw them in jail and again, try to work around Roe to say you murdered this child or you practice medicine illegally, or you disposed of a corpse unlawfully using these kinds of arcane laws, or just going straight for murder to try to put the woman on the hook. 

And we see anti-abortion advocates say we don't want to punish women who terminate, we want to punish the abortionists, but in reality, today, women themselves are often the abortionists. That's something that anti-abortion advocates just haven't really wrestled with, and I think it shows what a fantasy or a delusion it is for them to claim that women won't ever be punished for terminating their pregnancies. 

MARY HARRIS - HOST, WHAT NEXT: [00:28:53] Back when Arkansas passed that trigger law, in 2019, legislators openly worried about the implications of the bill, they were debating. Arkansas state representative Dan Douglas, a Republican, self described as pro-life, spoke out against this legislation before it headed to the governor's desk. 

MARK JOSEPH STERN: [00:29:11] I am pro-life, but I am pro humanity too. I feel like this bill goes too far. And who are way to sit in judgment of these women making the decision between them and their physician and their God above. It is their right to do that, and not ours. 

MARY HARRIS - HOST, WHAT NEXT: [00:29:37] With this year's ban legislators debated the same kinds of issues. One Senator brought up her 10 year old niece and lamented that she might be required to carry a pregnancy to term if she was the victim of rape or incest. But when a few Republicans tried to insert language into the bill that would grant exceptions in these kinds of cases, their colleagues brushed them off. Said they were making the kinds of arguments Planned Parenthood might make. Mark Joseph Stern says that's because right now conservative legislators are feeling confident. 

MARK JOSEPH STERN: [00:30:10] Abortion restrictions have always been about the art of the possible, and for a long time the goal was to get the supreme court to push Roe to its limit by, say, upholding mandatory ultrasounds, or really long waiting periods, or mandatory counseling where a doctor has to spew this anti-abortion propaganda, chipping around the edges of Roe. And at that point, some Republicans, not all, but some, wouldn't necessarily want to go out and say the end goal here is to just ban all abortions because that gives the game away. Think about the trap laws that target clinics that impose these really onerous restrictions on abortion clinics to try to shutter them.

MARY HARRIS - HOST, WHAT NEXT: [00:30:54] These are like restrictions that talk about your door has to be certain number of feet wide, and you have to be associated with a nearby hospital in order to do abortions. 

MARK JOSEPH STERN: [00:31:03] Your doctor has to have admitting privileges at a hospital that's within, 10 feet or 15 miles. Your vents have to be so many inches wide, all of this stuff that all medical experts agree is not actually necessary to protect women's health. To defend those laws in court, Republicans had to pretend like they were about women's health. Like they were not actually about banning abortion because Roe still seemed, at that point, like it was here to stay, and after Brett Kavanaugh joined the court, after lower courts started to suggest that they were ready to start defying Roe and especially after Amy Coney Barrett replaced Ruth Bader Ginsburg, I think Republican legislators saw less of a reason to pretend like this was about protecting women's health, or even about incrementally rolling back abortion. This has become, as I said, a sprint to overturn Roe, to take the glory of being the state that ends Roe and there's no need to pretend like it's about anything else. And Republicans who have some concerns about extreme abortion bans don't have much room in the party, at least on the state level, in most of the country.

MARY HARRIS - HOST, WHAT NEXT: [00:32:20] Mark, you keep talking about when Roe versus Wade is overturned, but shouldn't we be saying if? 

MARK JOSEPH STERN: [00:32:25] I think it's very clear that Roe will be overturned or perhaps so eviscerated that it basically doesn't exist anymore. And I think that for people like me who are pro-choice, it's better to start grappling with that reality, both on the abstract level and in terms of how we talk about abortion. And to me, I think it's probably more realistic to just say Roe is going to go and we'll learn exactly how over the next year. 

Once you've granted this kind of personhood to a fertilized egg, then you have criminalized a broad swath of fertility treatments, including IVF, because that process involves creating embryos and eventually destroying some of the embryos. This is something the anti-abortion movement has been focused on for some time. In fact, there are devout Christian couples who will adopt an embryo. They will adopt a fertilized egg. 

MARY HARRIS - HOST, WHAT NEXT: [00:33:26] I believe they call them snowflake babies. 

MARK JOSEPH STERN: [00:33:29] Yes, precisely snowflake babies who are carried to term by another woman, and they think that this is protecting the sanctity of human life. And it was only a matter of time until that bled into legislation. And so what we're seeing in Arkansas is not just affecting individual women's health decisions, but affecting couples, both same-sex and opposite sex couples, who struggle with infertility. This law very clearly says you are not welcome in Arkansas if you want to use IVF. And I think that's the next stage in this battle, because this was never going to end with abortion, it's also about all this other stuff, including contraception, birth control, and IVF. And I think once Roe falls that sort of the next front. 

Preston Mitchum on Roe and Reproductive Justice - CounterSpin - Air Date 5-21-21

JANINE JACKSON - HOST, COUNTERSPIN: [00:34:19] When we spoke with URGE Executive Director, Kimberly Inez McGuire, in February, she explained how abortion being legal, and abortion being accessible, are very much not the same thing, acknowledging that the right that Roe V Wade codified, of a pregnant person to decide whether to continue that pregnancy pre-viability, recognizing that's not been a realizable right for many women for some time, and for some really ever. That's not to say that Roe didn't matter. And it certainly wasn't to say that losing Roe would not matter. What weight are you giving, or how are you responding to this latest turn in the legal landscape?

PRESTON MITCHUM: [00:35:04] Kimberly is absolutely right. Roe is not enough, has never been enough, and we still need it. And what I think is really important to recognize here is that legal abortion, of course, is on the line. But keeping abortion legal is only the first step. And so what Kimberly was really speaking about is a thing that many of us are starting to speak about and that many others have been speaking about for quite a while, that legality alone is not, and has never been enough, because the legal right to abortion access, really means nothing if the same people who have the right can’t access their right. There's a difference between having a choice and having the ability to effectuate that choice. 

And so what we think about is our vision, and the vision being bigger: Committed to creating communities and centering communities where our loved ones are able to receive the abortion care that they need.

And unfortunately, even with Roe, many have been forced to give birth, because of course Roe established the right, a very important right, to abortion pre-viability; The one thing it did not establish was that people need access to abortion pre-viability. 

JANINE JACKSON - HOST, COUNTERSPIN: [00:36:16] Well, the Dobbs case that's coming forward, that the court has said they’ll listen to, it's not unique. Listeners will know that. The Guttmacher Institute says that 2021 may be the most damaging anti-abortion state legislative session in a decade, and perhaps ever. There have been more than 500 abortion restrictions, including more than 100 outright bans across some 46 states. So I guess my question is, what's the difference between state and federal here? We hear Biden saying, whatever the court does, even if the court overturns Roe, we're going to still push for Roe rights. But so much of this seems to be happening at the state level. So what is the federal role here? What. could be meaningfully done if the court makes this decision? 

PRESTON MITCHUM: [00:37:08] First thing I’ll say to that is, the Biden/Harris administration needs to actually say the word "abortion" to speak about abortion care and access. To date, we have minimally heard the Biden/Harris administration actually talk about abortion as abortion, right? It's centered on Roe. People don't go into the clinical setting to get a “Roe”; they go into the clinical setting to get an abortion. And so that's really important to name explicitly some of the issues related to why the Biden/Harris administration aren't talking about abortion care by name. It's one of the first things that’s just incredibly important.

The second thing I'll name is that there is something Congress can do. And what Congress can really start to do is passing legislation to protect the right to abortion care, such as the Women's Health Protection Act or WHPA. URGE has actively worked on the Women’s Health Protection Act that will be introduced in the coming weeks, in the 117th Congress, with our friends at the Center for Reproductive Rights. What's really exciting about WHPA is that if passed, it will protect the right to abortion access throughout the United States and really guards the curtailing of those rights, like the one we see happening in Mississippi. So there is something that the federal government can do that Congress can do pretty immediately in the coming weeks, and that's co-sponsor and pass the Women's Health Protection Act. 

JANINE JACKSON - HOST, COUNTERSPIN: [00:38:22] In terms of media coverage, I'm always incensed when I see media present abortion as a cultural issue, as if it's a soft issue, as opposed to a serious issue like economics. If there's anything more central to economic life than the ability to decide whether and when to have a child, I can't imagine what it is. And yet, again and again, in media, we see even Reuters talking about this: "Supreme Court jumps into US culture wars." I feel that the way media talk about abortion, it lines up with the White House where you don't say the word abortion, because that's icky, so you don't present it as a central economic, core, integral right for human beings to have. It's instead something that religious people care about or something. 

PRESTON MITCHUM: [00:39:12] Exactly. And what it does is it continues to drive a wedge that shouldn't be a wedge. 

When we're talking about abortion we're talking about life-saving treatment that people actually need. It's medical care, it's healthcare.

And in many ways, all statistics show that abortion care is in many ways safer than giving birth. And so those are statistics and facts that many people, unfortunately, who are driving this “culture war narrative," don't want people to believe or understand, but it's true. And unfortunately what it does is undermine the necessary conversation we must have around reproductive health, rights and justice, especially reproductive justice, right?

So of course, reproductive justice is more than abortion. It's comprehensive. We're talking about the human right to maintain bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities. Abortion access is a critical part of maintaining reproductive justice for Black folks, for indigenous folks, for Asian-American and Pacific Islander communities, for indigenous folks. And we must center it on the work where people can create a future for themselves where every person can make their own decisions with dignity, with autonomy and with self-determination. And you're absolutely right. When media coverage and narrative is about culture war, it creates this idea that only some people should have abortion access, that the people who do want abortion access are the people who are against what is actually the moralistic framing of this country. And it creates this divide of good and bad. Abortion is not about good or bad. Abortion is about access and creating the families and the communities that we want, that we can see, and that can survive in the system that we have today. 

JANINE JACKSON - HOST, COUNTERSPIN: [00:40:56] Just finally, I guess I would say, I think so many elite reporters can cover abortion as an abstraction because if you're a reporter at the New York Times, nobody you know, is going to have any trouble obtaining an abortion, no matter what the Supreme Court decides.

PRESTON MITCHUM: [00:41:13] Exactly. 

JANINE JACKSON - HOST, COUNTERSPIN: [00:41:14] I just think that you don't have experience of what it means to have to ask your parents or have to get on a bus and travel two states over. 

I guess I would ask you finally, whose voices could media be listening to that could reshape the understanding that they're putting forward about abortion rights and access?

PRESTON MITCHUM: [00:41:35] That is such an important question. And I think that is the question that we should all be asking ourselves. This is not about uplifting particular politicians' voices more than anyone else's. This is about centering the people who abortion has been out of reach for since Roe, and will certainly be out of reach if Roe is suddenly pushed back and overturned by the Supreme Court.

We should really be listening to abortion patients and those who have had abortions, those who may want abortions in the future. And that includes Black people. That includes women, of course, and other folks capable of becoming pregnant like trans and non-binary people and queer people. That includes young people, especially. That includes places where abortion access has been chipped away time and again, like the South and Midwest. It includes poor people and people who are struggling to make ends meet. And it really includes the communities that the media so often forget about, and never talk to, and certainly don't center in their conversation.

Abortion care and abortion access is a racial justice and it's an economic justice issue. And until we have those honest conversations, we'll be in the courts, hoping that they save our lives time and again. 

Changing the Way We Talk About Abortion Part 3 - Ordinary Equality - Air Date 4-7-21

JAMIA WILSON: [00:42:50] Here's Heidi Moseson, an epidemiologist at Ibis reproductive health. She helped conduct a national quantitative survey about pregnancy and the trans and non-binary.

HEIDI MOSESON: [00:43:00] I think what's felt really  powerful about this study, and having it published in the American journal of obstetrics and gynecology, which is the top OB GYN journal in the country, is to just make very clear to all OB GYN, trans and non-binary people have abortions in this country. 

They are showing up in your clinics. They are showing up as your patients. Have an awareness of, that there are some needs and experiences that may differ from your more frequent cis-gender women patients. 

So some considerations around preference for method type. You know? We learned that a lot of our trans and non-binary participants had a strong preference for medication abortion based on it being less invasive, essentially, and not requiring any internal exam, or internal instrumentation, et cetera, which we didn't have that information before.

What we present in some of our research too, is, there's high desire for pregnancy amongst trans and non-binary folks. So someone can be a man and want to carry a pregnancy. So I think there's a lot of assumptions based on who someone is in partnership with, who someone is having sex with, what assumptions or genders that providers might assume for any of that.

You basically can't make assumptions. People want to build their families. And there are so many amazing ways that people can build their families. 

KATE KELLY - HOST, ORDINARY EQUALITY: [00:44:27] We sat down with a non-binary reproductive justice advocate who was kind enough to share how lack of visibility and inclusive language has impacted their experience in their pursuit of work and healthcare.

JACK: [00:44:39] My name's Jack and my pronouns are they, them, theirs. Whenever people ask me to tell them what my capacity is in this movement, I always just tell them what I do for a living, cause I find that to be very interesting. I run a sex shop, so that's fun. Um, And I feel like it's somewhat relevant. 

I've been working... I worked in public health for a while in my early twenties. Um, And I've been talking about my abortion publicly for about 10 years now. 

KATE KELLY - HOST, ORDINARY EQUALITY: [00:45:07] Jack said their abortion at Planned Parenthood was a largely positive experience, but the clinic still clearly didn't have the gender identity literacy they should have had. 

JACK: [00:45:16] I was too scared to really tell anybody at the clinic, while I was having the abortion. "Hey, these are actually my pronouns." It really... I was like, I want to be safe and not be pregnant. I wasn't going to sit and have an education session on what pronouns were at that moment. Um, that would be too much emotional labor. And I was not in a good place. Like I was not happy about the situation, obviously. So it's not the first thing I wanted to have to explain at the time. Cause I had my abortion in 2011. 

There was no pronoun option, or preferred name option, on the intake forms. They were incredibly sexist, but again, it wasn't my first concern. 

KATE KELLY - HOST, ORDINARY EQUALITY: [00:45:57] This lack of knowledge about gender identity and repeated mis-gendering became a common theme running through much of Jack's advocacy work.

JACK: [00:46:05] I remember once, I did a presentation, I was being given feedback, and someone mis-gendered me, and I corrected them and they told me, "Jack, could you not correct me when I mis-gender you? Because it takes me into my thought process." And the amount of patience I had to practice in that moment was just incalculable.

Um, and I had to say well, I had to wait and, kind of, just go, "Well, you know, I appreciate that, that you're communicating that with me, but I want you to think about how difficult it is for me to hear what you're saying when you're mis-gendering me, and how that takes me out of being able to... to hear you and communicate with you, because it is an act of violence."

KATE KELLY - HOST, ORDINARY EQUALITY: [00:46:46] Even if advocates use the right gender pronouns, acknowledgement of trans people's existence is too often performative. 

JACK: [00:46:53] When I've worked with other organizations, a lot of the time it feels like they just want a trauma story. They want me to talk about how sad and hard it was to be a poor college student who couldn't afford their abortion, being gender non-conforming, being transgender, being non binary; that's like a fun tidbit here and there in May, for, you know, pride month that they love to throw in. But it's not...

They use people like me for our stories, for credibility, but they don't actually give a rat's ass what happens to us. They often don't pay you for the emotional labor, or physical labor, depending on what you're doing.

They're unorganized. They don't have any respect for you. You're just another name and another story to go, like, "Oh yes, because we need these donors. So we need you to talk about how sad and hard it was for you." And it doesn't feel like I'm being treated like a human being. 

JAMIA WILSON: [00:47:50] This ignorance translates to a material lack of respect and opportunity in healthcare. Here's Dr. Moseson again. 

HEIDI MOSESON: [00:47:57] Some providers who may want to provide affirming care, but haven't had training, or exposure to information on how to do so; or, on an uglier side, a lot of outright discrimination and refusal to provide care for someone who shows up as a man or a non-binary person in an abortion clinic.

And on a seemingly less harmful scale, but perhaps no less, perhaps, actually no less harmful, small things such as, it's really hard to walk into a space as a man that says, "Women's Health Clinic." You walk into a space, the walls are pink, there's only pictures of cis women on the walls. It... it feels hard to show up in that space, and be mis-gendered by the receptionists, or only have a women's restroom in the space. Things that sounds small, but can be quite intimidating to walk into. 

We have another study actually out on people trans and non binary folks who opted not to go to the healthcare system, often for these reasons, and chose to self-manage an abortion at home, either with herbs or, in some settings, with harmful methods, such as physical trauma. 

There's a lot to be said for self-managed abortion. It can be very safe and effective if people use mifepristone and misoprostol on its own. But when people don't have access to that those medications, it can be less safe.

JAMIA WILSON: [00:49:16] We can't undermine the humanity of trans people for fear of opening ourselves up to further criticism from transphobes, TERFs, and the Religious Right. We must acknowledge the full base of people we're intending to help and defend. It hurts me when I see purported reproductive rights activists pushing back against gender neutral terms, like "pregnant people" with concerns that they erase womanhood. 

My own identity isn't impacted by gender neutral language, and my assessment: you can't be a real reproductive justice advocate without being trans inclusive. Just like you can't be a feminist and be racist. 

Jack had a response to people who refuse to use gender neutral language regarding pregnancy. 

JACK: [00:49:57] That's because they associate womanhood with that experience.

There are women, CIS and trans, who don't have uteruses, who can't give birth, who can give birth. And I find that to be very close-minded. I completely understand why, especially older generations of Black women, (I'm Caribbean). And I get that narrative is we weren't given the opportunity to be people. We weren't considered women at all. We were, property and all that jazz. I completely understand that. 

But I also would love to acknowledge the fact that people of different gender and experiences and fluidity  have existed for thousands of years. This is not new. Whether we were recognized... You know, it's like that, that conversation about "We weren't allowed to be people," like it's, it's a, it's a lack of acknowledgement of our existence, and how ironic that is because that's the argument that's being made. "It's it's not acknowledging my existence". 

What about ours? We're experiencing the same things. We are also people of color. We are also disabled people. We are also women. We're also not women. The queerness is there, whether it's a queerness of gender or queer... queerness of orientation, sexual orientation, or romantic orientation, it's there. And needs to be acknowledged. 

Does Roe v. Wade Stand A Chance Part 2 - Whats Next - Air Date 5-26-21

MARY HARRIS - HOST, WHAT NEXT: [00:51:11] At the same time, these state laws have been getting jammed through all around the country, the supreme court itself weighed in and sent a signal about the way its rulings on abortion may be about to change. The court did this most directly by announcing plans to take up a case that challenges Roe v Wade directly. A case that started in Mississippi. That state tried to ban most abortions after 15 weeks of pregnancy a few years back. It's a law that Mark says was crafted specifically to end up in the supreme court's lap. 

MARK JOSEPH STERN: [00:51:44] Let's be clear, Mississippi passed this law explicitly to serve as a vehicle for the supreme court to overturn Roe. So the law has never taken effect. The legislature passed it in 2018. A federal district court blocked it, and then the Fifth US Circuit Court of Appeals upheld that decision. 

MARY HARRIS - HOST, WHAT NEXT: [00:52:04] It's funny, a 15 week ban, given what we've just talked about, a ban at fertilization in Arkansas and a six week ban in Texas, 15 weeks seems almost quaint.

MARK JOSEPH STERN: [00:52:14] Yes, it does. And I think maybe that's part of the conservative justice's thinking here, that after seeing what could happen, that pro-choice advocates will settle for 15 week ban because they're afraid of a law like Arkansas', getting green-lighted instead. But to give the background, so Mississippi passes the law, the lower courts block it, but this Trump judge named Jim Ho, on the fifth circuit, writes this long separate opinion where he says, "look, I have to block this under Roe, but I really hope that the Supreme court uses this case as a vehicle to overturn Roe, because I think Roe is wrong." And in saying that this judge was speaking for almost all Trump judges who are very hostile to reproductive rights. 

And so Mississippi offered the Supreme court a bunch of different options if it wanted to take up this case. So Mississippi said, "look, you could take this case and just use it to decide whether Roe v Wade should stand, but you could also take this case and use it to tweak the standard that courts use when assessing abortion restrictions. To say that fetal life is a compelling state interest that can outweigh women's interests, or you could use it to restrict abortion clinics' ability to bring lawsuits on behalf of patients." There was a buffet of options here. 

MARY HARRIS - HOST, WHAT NEXT: [00:53:36] Is there any indication of which option the court's going to take? 

MARK JOSEPH STERN: [00:53:40] Yes, because the court told us. It was like a seven-year-old at a Chinese buffet going straight for the last egg roll. The supreme court said, "We don't want these compromises, we don't want these half measures, we're just going to take the one big question, which is, in short, whether we should overturn Roe v Wade and allow states to ban abortions before fetal viability." 

So the question that the court took up essentially asks, "Does the constitution prohibits states from outlawing abortion before viability?" And again, Roe answered that question, "Yes, the constitution does prohibit states from banning abortion before viability." And that, for nearly 50 years, has been the bright-line rule, and no matter what other restrictions the supreme court has upheld, it has preserved and reinforced that bright-line rule.

And this case is a very obvious vehicle for the supreme court to overturn that rule, and to say, "Actually we think that Mississippi, and other states, do have a constitutional right, constitutional authority to ban abortion before viability at 15 weeks." And it seems likely to me that the supreme court will just uphold this law and not say exactly how far their reasoning goes. So they'll probably say something like, "Yes, Mississippi has the authority to ban abortion at 15 weeks. Roe is overturned to the extent that it prohibits Mississippi from doing that." And then leaves it to the lower courts to start upholding the even more extreme restrictions, including the outright bans. 

MARY HARRIS - HOST, WHAT NEXT: [00:55:30] So it opens the door for a continued assault by these more extreme laws?

MARK JOSEPH STERN: [00:55:34] Exactly, because once you've overturned the viability rule, it's not clear that there's any bright-line standard, that there's any point in pregnancy where courts can say, "Okay, before this point, abortion must be legal. After this point, it can be criminalized." That line has been viability for so long and once it goes away, then Trump judges, especially in the lower courts who have been so eager to uphold abortion bans, will finally have what they need. They will have this ruling from the supreme court that will allow them to uphold even more extreme bans. And they'll say, "Viability is not the rule anymore. Sure. The supreme court only upheld a 15 week ban, but its reasoning clearly applies to a six week ban, or a total ban, or whatever." 

This City Wants Your Racist Uncle to Enforce Their Abortion Ban - Boom! Lawyered - Air Date 6-10-21

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [00:56:22] And now we got to talk about jurisdiction. We got to talk about jurisdiction, right? So jurisdiction means both where the court hears the case, like for example, the Northern District of Texas. And also if the court has the power to decide whatever it's being asked to decide. Jurisdiction in this case means can Lubbock ban abortion within its city limits? And does the court have the power to hear a case that answers the question, whether or not Lubbock can ban abortion within its city limits?

JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: [00:56:51] I wish that you had taught me Civ Pro, Imani, because honestly I would not have hated Civ Pro had you been my teacher! That is like the most clear example of jurisdiction, and to think that I suffered through so much. 

But so look, the anti-choice advocates in Lubbock did something really sneaky here. They hemmed in the court's jurisdiction entirely.

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [00:57:09] So you're saying that anti-choice advocates basically concocted a scenario that makes it impossible for federal courts to even hear a case about this ridiculous statute that was just passed in Lubbock. 

JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: [00:57:21] Imani, that's exactly what I'm saying. Really. And they did this in two ways, and it's complicated, but it's like, we need to talk about it because this is a real big problem.

Okay. So in this Lubbock ordinance, there's a trigger. And we've talked about triggers on this podcast before, that's an event that has to happen. So it's a trigger that limits when public officials like district attorneys can enforce the ordinance. All right. Public officials cannot go and enforce this ordinance until one of three things happen.

Those events include the Supreme Court overruling Roe vs. Wade and Planned Parenthood vs. Casey. So like big marquee moment, right? A state or federal court rules that a penalty will not impose an undue burden on a woman seeking abortion. So basically some other court says that they think the Lubbock ordinance or something like it is okay.

And third, a state or federal court rules that the party that the penalty could be enforced against, so an abortion provider, or a person getting the abortion, lacks third-party standing. We've talked about third-party standing here, right? That's where abortion providers affirmatively challenged laws on behalf of their patients.

So one of the triggers is if a court rules that there's no standing. 

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [00:58:32] So the trigger is, so this ordinance is unenforceable by state figures, but is enforceable by any given motherfucker that's allowed to sue. 

JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: [00:58:40] That's all we're going to get to. Yes.

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [00:58:42] Okay. So number two, the second trigger, is a state or a federal court declares that enforcing the ordinance wouldn't be an undue burden under Casey. So that means that a prosecutor in Lubbock, let's say the Lubbock DA, would have to decide on his or her own to seek that kind of declaratory judgment, probably from a state court, and then go after Planned Parenthood to close them.

So they have to go to state court and say, is this ordinance cool? And the judge will say, because it's in Texas, the judge will probably say, yeah, it's super sweet, great ordinance. Couldn't be better. And so then, that's when these anti-choice forces can go after the Planned Parenthood clinic in Lubbock and close [them].

JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: [00:59:19] Yeah. So what Imani is talking about happens all the time. Declaratory judgments are really normal, routine things that happen in federal and state courts. And you do, you go to a judge and say, Hey, declare a thing and issue an order on it, a declaratory judgment. And in this case, it would be a declaration that the ordinance does not unduly burden abortion rights.

So that could happen in a variety of jurisdictions, they get that, and then the state, the government can start enforcing this. That's important. 

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [00:59:49] And then the third thing that would have to happen with respect to the enforceability of this ordinance, is that a court would have to enter a ruling that whatever abortion provider sues, challenging this ordinance, doesn't have standing to sue.

If that happens, then it means the state can come in and start enforcing this ordinance, and that basically makes sure that the clinic in Lubbock is going to close and that no other clinic can ever open up in Lubbock. Yeah. 

So the TLDR about this is that a patient is the only person who can argue undue burden. Right? And we've talked about how hard it's going to be to find a pregnant person who might want an abortion in Lubbock. And to find that person who willing to challenge the law, right? What would even be the point? I want to get an abortion in Lubbock. No, you can't get an abortion in Lubbock. I'm going to sue to get an abortion in Lubbock. That person probably has better things to do, I don't know, find another clinic where they can go and get the reproductive healthcare that they need.. 

JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: [01:00:39] And this is all really complicated stuff, but to boil it down for you folks, normally it's the state that enforces laws. And what this Lubbock ordinance did was out of the gate limits the power of those folks who normally enforce these laws. It limits the power of the state and local government officials to enforce this ordinance until a couple of things happen. So that sounds like, Hey, this ordinance isn't that big of a deal. It's not enforceable by the state. 

But this is where it gets really wild, okay? They added this private enforcement provision. This any old asshole can enforce it. So this Lubbock ordinance says, Hey, we're going to basically ban abortion within the city limits, but we're not going to empower city officials to enforce it. We're going to empower private citizens instead. So there's a huge accountability thing. So let's walk through this private enforcement provision.

This allows relatives and family members to, for example, sue to block an abortion. The private enforcement provision also allows any private citizen of Texas to bring an action for injunctive relief, so stop this, statutory damages, money, and also costs and attorney's fees. So their attorneys are paid for them.

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [01:02:00] If I'm not mistaken, I don't think it's limited to Texas, actually. I think it's everywhere. So that means like if you live in Alaska and you have really strong feelings about Jane Doe getting an abortion, you can sue from Alaska. Like that doesn't make any sense. What interest does a person in Alaska have in an abortion that someone may or may not be getting in Texas? Like that's such a broad swath of people that have been conferred this standing, this power to enforce a law that is not even enforceable by state officials.

JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: [01:02:31] There's also, Imani, no statute of limitations for any lawsuit brought under the private enforcement provision.

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [01:02:38] So what's really alarming about this Lubbock decision: this judge who said, "Sorry, I don't have jurisdiction to hear this case," is that this is a precursor, this tells us what's going to happen when providers try to challenge SB8. SB8 is that six-week ban that, it's basically the most restrictive abortion ban in the country right now, the most restrictive abortion restriction. That's too many restrictive and restrictions. 

But the point is this law is going to go into effect, right? You mentioned the word chill. There can be no chilling of constitutional rights. This will absolutely have a chilling effect on providers who would basically have to wait to be sued before they can go to court and say no, I am under well within my rights to be providing abortions because abortions are getting an abortion it's constitutional. 

But what really concerns me is that what if a bunch of any given motherfuckers throughout the country decide to file a hundred lawsuits suing this one Planned Parenthood clinic all at the same time. There's nothing to stop people from doing that. There's nothing to stop Alliance Defending Freedom from coordinating multiple lawsuits against one clinic in order to overwhelm them. 

And so the TLDR-- I'm going to quote Andrea Grimes again. "This bill creates an abortion ban that isn't enforced by the state, but is enforced by any random motherfucker anywhere. And because any random motherfucker can sue any random time they want, they could all sue at once, overwhelm a clinic, which means that clinic is going to be inclined to maybe shut its doors in advance so as not to be overwhelmed by lawsuits. Clinics don't have millions and millions of dollars to defend multiple lawsuits on all fronts. 


Okay. So you mentioned Andrea. This week we published a piece because If/When/How, the reproductive justice organization, has launched a bail fund, the first of its kind bail fund for folks who find themselves in legal troubles for self-managing abortions. And this is an unfortunate necessity.

And we said, the third thing that we're gonna talk about on the podcast is how this Lubbock situation isn't going to be limited to Lubbock and Texas. Here's the thing. JWHO's [Dobbs v Jackson Women's Health Organization] lurking in the background, always in all of these conversations. And the central question in JWHO is, does the state ever have the power to ban abortion before viability? And this Texas bill SB8 bans abortion at six weeks, very clearly an unconstitutional pre-viability abortion ban.

So if the Supreme Court answers yes to that question in JWHO, then this six week ban can take effect. Okay. And that six week ban can take effect and the Supreme Court can answer that question without actually overturning Roe. They can modify it. That's an avenue to still hem in state enforcement, but broadly open up private enforcement, and have an abortion ban on the books at six weeks.

All right. So we know what happens in this space. We've been here a while. This isn't going to just be Texas. Nope. We can expect these kinds of provisions to pop up in other abortion hostile states, places like Ohio, Missouri, Alabama, Louisiana et cetera. Okay. So this is Lubbock in Texas is in some ways doing us a favor by giving us a preview and a look at how anti-choice activists are really going to respond and how they're preparing for a post JWHO world.

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [01:06:10] I don't want any of this. 

JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: [01:06:12] I just gave Imani a stomach ache. 

IMANI GANDY - CO-HOST, BOOM! LAWYERED: [01:06:14] You really did. And it's just after Texas go with the world. Not the world, the country. 

But honestly, if you think about it, the reason why I got into this business when I left private practice, the reason why I got into this business is because I became friends with a lot of abortion rights advocates in Texas. And Texas had passed the sonogram law, right, in 2011. But when I started getting into the game, everyone was so focused on Virginia. And all the people in Texas were like, we told you that this was going to happen when they pass this in Texas, and you guys didn't care because you think Texas is just a red state and it's a fly over state and we don't need to worry about it.

So if there's one thing I can impart to people is that you really do need to be paying attention to the things that are going on in Texas, because that is going to spread throughout the country in all of these states that are hostile to abortion rights. 


JAY TOMLINSON - HOST, BEST OF THE LEFT: [01:07:04] We've just heard clips today, starting with Ordinary Equality in two parts discussing how to be more effective and persuasive in our framing of our messaging on abortion rights. Democracy Now! focused on much of the political strategy for defending abortion rights with an eye on the supreme court, from the Casey decision of the nineties up to today. What's Next highlighted the inevitable shift to criminalizing women as is regularly done in abortion restrictive countries. CounterSpin discussed the economics of the right to choice over one's own reproduction. In a third clip, Ordinary Equality shined light on the particular needs of trans and non-binary people seeking abortion services. And What's Next gave more detail about the ruling that is likely to be coming down from the supreme court. 

That's what everyone heard, but members also heard a bonus clip from Boom! Lawyered who got deep in the weeds on some of the most creative state level abortion restriction strategies in the works. To hear that and all of our bonus content delivered seamlessly into your podcast feed, sign up to support the show at bestoftheleft.com/support or request a financial hardship membership because we don't make a lack of funds a barrier to hearing more information. Every request is granted, no questions asked. 

And now, we'll hear from you.

Final comments on the Podcast Awards

Thanks to all those who called into the voicemail line or wrote in their messages to be played as a VoicedMails. If you'd like to leave a comment or question of your own to be played on the show, you can record a message at 202 999 3991. Or write me a message to [email protected]

To add just a little bit more self promotion in today's show: in addition to, as I've been describing recently, my urging that you consider turning on notifications for when Best of left publishes new episodes... 

also, this is the time of year when the podcast awards nomination process is in full swing. So you'd go to podcastawards.com and sign up, go through the process. It's all very simple. You don't need, it explains to you, and then you nominate Best of the Left in the news and politics category. 

That's all you have to do. You just have to do it once. And I just need lots of people to do it, to make sure that we get on the final slate to be considered for the award. 

So again, had to podcastwards.com, nominate us in news and politics, and it will be greatly appreciated.

That is it for today. As always keep the comments coming in at 202 999 3991 or by emailing me to [email protected]. Thanks to everyone for listening. Thanks to Deon Clark and Erin Clayton for their research work for the show and participation in our bonus episodes. Thanks to the Monosyllabic Transcriptionist Trio, Ben, Dan, and Ken for their volunteer work, helping put our transcripts together.

Thanks to Amanda Hoffman for all of her work on our social media outlets, activism segment, graphic designing, web mastering, and the bonus show co-hosting. And thanks to those who support the show, of course, by becoming a member, or purchasing gift memberships, at bestoftheleft.com/support or from right inside the Apple podcast app if you like that sort of thing. 

Being a member is the only way you get instant access to our impressively good bonus episodes, as well as extra clips, and no ads in all of our regular episodes. Now, for details on the show itself, including links to all of the sources and music used in this and every episode, all that information can always be found in the show notes on our website, and likely right on the device you're using to listen. 

So coming to you from far outside the conventional wisdom of Washington DC, my name is Jay, and this has been the Best of the Left podcast coming to you twice weekly. Thanks entirely to the members and donors to the show from bestoftheleft.com


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  • Jay Tomlinson
    published this page in Transcripts 2021-07-23 23:00:46 -0400
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