Abortion pills at the Supreme Court

0:00Abortion pills have been on a bit of a journey in the United States over the past few weeks. The journey begins in Louisiana, where the state sued the Food and Drug Administration to ban access to mifepristone through telehealth pills in the mail. On May 1st, a district appeals court temporarily banned access to telehealth abortion and pills by mail nationwide. So for a few days, a lot of people in the country were like, uh... But then the Supreme Court of the United States weighed in. Oh yay, oh yay, oh yay. The Supreme Court has, at least for now, restored access. But the Supreme Court wasn't finished.

0:34They said, we'll have more for you on Monday, yesterday. But then yesterday they said, actually, Thursday. And we'll see if that happens. The Supreme Court said it would get out of the business of abortion after overturning Roe v. Wade. And they were wrong. So while we wait for them to figure this out again, we're going to talk about what's at stake on today's Explain from Bucks.

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2:36I am Alice Miranda Olsteen, and I am a senior health care reporter for Politico. By the end of the week, could the nature of access to abortion pills across the country change? Is that what's at stake here? Yes, absolutely. So what Louisiana is demanding is that the Supreme Court allow restrictions to go into effect right now, even before the case is finally resolved. Louisiana says, you know, every day that patients in our state can get abortion pills online and get them shipped in in violation of our state's ban is a day we are being injured as a state. They're claiming sovereign injury that they say the ability of patients around the country to access these pills by telehealth, to have them prescribed by a doctor online and sent by mail, is helping people in their state circumvent the law.

3:28And that's why they want the Supreme Court to step in and cut that off for everyone nationwide because it's a federal policy while the case is still in the works. And the drug makers are the ones fighting back against that, the two companies that make this abortion pill. And they say there's no sovereign injury. You can't just get rid of a policy for everyone because you don't like how people are using it. Louisiana thus suffers no sovereign injury because nothing undermines Louisiana's ability to legislate and enforce abortion restrictions as it sees fit. and they say that, you know, this policy has been in effect for several years already.

4:09There's no sudden emergency where you need it suddenly banned just now. And thus, the Supreme Court should keep everything the way it currently is while the case works its way through.

4:24Do we have any idea where the Supreme Court stands on abortion pills at this point? So the reading of the tea leaves is always a, you know, tricky, tricky venture with the Supreme Court. You know, people try to guess based on, you know, the questions that were asked at oral arguments. We haven't even gotten there yet in this case, but it's just very hard to know. It's very hard to know. Politico hasn't gotten like a leak this time about the decision. Not on this one. Not on this one. It's very possible that, you know, once again, they sort of duck the heart of the issue on abortion, on federal power versus state power.

5:01And they just say, you don't have standing. You can't prove that you, the state, are being injured by this policy. It seems a little contradictory, right? I mean, the Supreme Court said let the states decide. Years later, we have Louisiana saying, hey, ban abortion pills for the entire country. That's not letting the states decide at all, right? Just on its face. So what's interesting here is you really have both sides making a state's rights argument and saying my rights as a state are being infringed upon. So you have Louisiana saying, why should other blue states' liberal abortion policies where anybody can get pills, why should that be allowed to invade our state when we're over here trying to ban abortion?

5:46New York and other states have also passed aggressive shield laws that, among other things, permit doctors and clinics to omit identifying information from pill bottles so that a 12-pill bottle with mifepristone can arrive in Louisiana without indicating who sent it. And so they're basically saying that allowing this anywhere, you know, infringes on their right as a state to prohibit it. Now, of course, as you just articulated, you also have people saying, wait a minute. So that means it gets to be restricted for everybody, even people who, you know, have laws on the books in their states supporting access to abortion.

6:23States have no sovereign interest in having other sovereigns policies match theirs. And a divergence in abortion policy at the state level is a natural result of returning abortion policy to the states. And so, yeah, you really have all sides of this reaching for the state's rights banner. It's one of those sort of compromises that pleases nobody because the anti-abortion folks, they are not ever going to be satisfied. They say, you know, why should a fetus's rights, you know, end at a state border? And of course, on the other side, you have folks saying, why should, you know, a pregnant woman's rights end at a state border?

7:00And so this is always going to be a federal fight. How big a deal have abortion pills become since the Supreme Court overturned Roe v. Wade, since Dobbs? Even before that, they were becoming more and more popular as a method of abortion. And especially since the COVID pandemic, they have become the predominant method that people are choosing in order to terminate their pregnancies. Most abortions today are obtained through medication, often accessed by mail and without an in-person visit to a doctor, something opponents have tried to stop. Medication is now used to bring about two thirds of all abortions.

7:41And more than a quarter get them by telehealth. So, you know, even if the pills aren't banned entirely, but just telehealth is restricted, that's going to be a big blow. And it's not just a big blow to people living in states like Louisiana, where there's a ban locally, and they can't go to a doctor's office and get them even if they want to. But it'll impact people in states like California, where there are these huge swaths of the state where it's very difficult to get to a clinic. You know, we have medical deserts all around the country. We have shortages of providers. And telehealth has really broadened access, including in states where it was already legal and technically accessible on paper but not in practice.

8:25Okay, so give us an idea. let's say by the end of this week, the Supreme Court weighs in Thursday afternoon, Thursday morning, who knows. If they say no more abortion pills via telehealth, what does this look like in the United States? Yeah, so we actually got a sneak preview of what it would look like a couple weeks ago. We had a few days between when the Fifth Circuit ruled for Louisiana and said, okay, we're going to restrict these pills, access to these pills nationwide. And it took the Supreme Court a few days after that to step in and say, whoa, let's hit pause. Let's go back to the way things were.

9:02Let's restore telehealth access while we figure this out. So in those few days, you saw these providers who prescribe and ship the pills to people living in states with bans make sort of a variety of decisions. Some of these groups immediately just paused and stopped. Other groups, including, you know, some doctors I talked to in Massachusetts, they have been preparing for this for years. And so they had a plan already in place to pivot to only providing the second pill of the two-pill abortion regimen. So to have an abortion, you can't just take mifepristone alone. You have to take it in combination with another pill, misoprostol.

9:43Now, you can take misoprostol alone, and that's actually pretty common in other countries. So these groups, including the ones I talked to, immediately pivoted to only sending misoprostol to patients who were ordering the pills. OK, so there's a lot at stake here for abortion access in the United States this week at the Supreme Court. I'm curious how the president of the United States feels about this. Not that he has a say per se, but has he weighed in? He has not, and neither has his Justice Department. So what was really striking is, you know, the Supreme Court was like, OK, we're going to we're going to, you know, step in here and at least decide this case on a temporary basis.

10:33And, you know, they heard from Louisiana. Out-of-state prescribers freed from the in-person dispensing requirement are causing approximately 1 ,000 illegal abortions in Louisiana each month. They heard from the drug makers. Louisiana's complaint should have been dismissed outright. They heard from all of these other people, members of Congress. Brief for 259 members of Congress as amici. Governors. Brief for states of New York, Arizona, California, Colorado, Connecticut, Delaware, Hawaii. Medical groups. Leaving all medically sound options on the table, including dispensing Mifepristone via mail or at local pharmacies, is critical.

11:10Activist groups on all sides. Intimate partner violence often leads to coerced abortions of wanted children. Many religious traditions view abortion as morally acceptable. Former FDA officials. FDA was extremely cautious in approving nifepristone. Everybody was sending briefs up to the Supreme Court. But you know who didn't? The Trump administration. The Trump administration. The guy who talks about everything didn't say anything? Did not weigh in, did not either ask the Supreme Court to maintain the status quo or side with Louisiana. They were silent. The FDA has said it, you know, is reviewing the safety of the pills and will make its own decision.

11:48So the Trump administration had told lower courts, hey, back off, you know, let the FDA do its thing. But now that the case is before the Supreme Court, nothing to say, silent. Now, the anti-abortion folks took that as a sign that the Trump administration is cool with the Supreme Court imposing restrictions. They said, oh, even they won't defend the FDA's horrible telehealth policy, blah, blah, blah, blah, blah. Now, we don't know that that's the message that this lack of that this silence is sending. But it's it's definitely making people offer their interpretations.

12:32Why the silence when today explained returns?

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16:16Mr. President, do you have any reaction to today's play being named the best news show? Wow. I didn't know that. I just, you're telling me now for the first time. Philip Wegman reports on the White House for The Wall Street Journal, and he recently helped write one called The Anti-Abortion Movement is Turning on Trump. We asked him to come talk to us about it. Right now, if you talk to folks in the anti-abortion movement, they're pretty disappointed because they thought that they would be doing much better right now. They have Republican allies in Congress. Senator Lindsey Graham is promising to hold a vote on a national abortion ban.

16:56That would say after 15 weeks, no abortion on demand, except in cases of rape, incest. The Supreme Court, of course, turned over Roe v. Wade several years ago. It is 191392 Dobbs v. Jackson Women's Health Organization. And the man that they helped return to the White House, Donald Trump, who brags about being the most pro-life president ever. Well, I'm pro-life. I am pro-life. He's back in power. And yet last month you had the president of Susan B. Anthony Pro-Life America, a woman named Marjorie Dannenfelser, come out and say that the stakes were existential for their movement. If the Republican Party fully follows this administration's state's only strategy and abandons its commitments to pro-life action at the national level, then the movement as we know it is finished.

17:48Basically, what, you know, it all boils down to in their mind is that there have been more abortions post-Roe, year after year. There are more abortions in the United States now than there were on the day that Roe v. Wade was overturned. And currently, the Trump administration has embraced a sort of states' rights patchwork framework for regulation. 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. And so they were triumphant just a few years ago, but now they're very much on the back foot.

18:35It sounds like you're saying that these lobbying groups thought that the decision from the Supreme Court overturning Roe v. Wade, the Dobbs decision, would mean fewer abortions in the United States. Was that kind of their bad for thinking that? There certainly was an expectation that once Roe was reversed, there were going to be all sorts of other fights. that they were going to fight this out in all 50 different states. At the same time, though, these anti-abortion groups, they're of the opinion that the Dobbs decision leaves room for federal action. And what they're frustrated by right now is that Trump, in their mind, has really held them at arm's length.

19:20Not only does he not want a federal abortion ban. 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. But his administration has moved forward, you know, with the approval of a generic version of Mifepristone. They have kept on the books Biden-era regulations that allow a woman to order these drugs through a telehealth service and not actually have to go see a doctor in person. They believe that Republicans are standing still at a moment when Democrats, and frankly, this is backed up by the reporting, say that they want to codify Roe.

20:05So for these pro-lifers, it's existential. These groups you're talking about, can we get more specific? Who are we talking about here? So there's a lot of different groups here, you know, when it comes to the pro-life lobby. There's Americans United for Life, the March for Life, the Family Research Council. But the most politically connected is the Susan B. Anthony list. If a member of Congress gets a call from the March for Life, they're picking up the phone, eager to talk. If they get a call from Susan B. Anthony list, they might be sweating. No. Marjorie Dennis-Felser, president of SBA Pro-Life America, is very much a political operator.

20:49The entire group, they are knife fighters through and through. And they really put the Republican Party on notice last month when they announced that they were planning to spend$160 million, not just in the coming midterms, but in the 2028 Republican presidential primary. Time is short, but our task can be accomplished. And over these next two cycles, we plan to spend$160 million to try to accomplish this great task. The pro-lifers at SBA, they have not hid their frustration. They were angry at FDA Administrator Marty McCary because he approved a generic. Approving a new generic version of the drug methampristone.

21:31These are medications used in about two-thirds of all abortions nationwide. With FDA approval, activists say it will be easier to get abortion pills through the mail despite laws in some states that aim to make that illegal. The Susan B. Anthony group saying this reckless decision by the FDA is unconscionable. So last December, they called for McCary to be fired. You know, SBA, they've been sort of rattling the saber. But in our interview with her, she told The Wall Street Journal, the president is the problem. That's a direct quote. She believes that, you know, Trump, who was as pro-life of an advocate as you could have in 2016 and again in 2020, has set aside the issue.

22:19And the president on Friday met with people from the Susan B. Anthony list, including their leader, Marjorie. Do we know how much Marjorie and the president see the midterms in the 2028 elections differently? Certainly. The pro-life lobby thinks that there is a way for Republicans to run on abortion and not run away from it. And so they are going to spend a lot of money in these coming midterms, but they're also going to spend a ton of money in the coming presidential primary. And the expectation here is that any candidate that they're going to support has to agree to federal action on the abortion issue.

23:05Marjorie told The Wall Street Journal in our reporting that the president, who had been staunchly and openly pro-life, remember in 2016, there's that moment on the debate stage where he says that Hillary Clinton is okay with partial birth abortion and describes that in vivid terms. Based on where she's going and where she's been, you can take the baby and rip the baby out of the womb in the ninth month on the final day. And that's not acceptable. Well, that is not what happened. That got all of the social conservatives to stop thinking twice about this billionaire playboy from New York and see him instead as a social conservative champion.

23:44Well, in the 2024 election, you know, Trump sort of says, hey, I delivered you three pro-life Supreme Court justices. My work here is done. I'm going to focus on other things. And when Marjorie went to Trump and said, hey, we need federal action. I need you to get on board. The answer that she got was, no, this issue is killing us. A majority of Americans do, in fact, believe abortion should be legal in most cases. Just about two-thirds of those polled, 66 percent, believe abortion should be legal in all or most cases. That is nearly 10 points higher than it was just over a decade ago. And there's a belief inside of the current administration that if they didn't have to deal with abortion, then maybe Republicans will be picking up dozens of additional seats.

24:31So the fact that this meeting was put on the schedule is incredibly significant because it shows that the White House knows, look, we have to service this part of our coalition. We have to get on board with them. Maybe it reflects that the administration believed that they let a core constituency outside of the fold. It seems pretty clear if you look at his, you know, decades of history of weighing in on every last issue that abortion didn't weigh heavily on the president's mind until it became politically expedient to do so. Do you really think if, say, J.D. Vance come 2027 or so starts advocating for a federal abortion ban, 20-week abortion ban, whatever it might be, that it's going to upset President Trump, who probably, you know, doesn't really have a dog in the fight to begin with?

25:20We don't know how much of a leash does the president actually give J.D. Vance to go pursue the nomination. And as he's doing it, is Donald Trump a stage mom giving helpful advice? Or is he one of the judges saying, hey, I thought you were the MAGA heir apparent, but some of these other guys have better stump speeches and they are more deferential towards me. You know, Donald Trump, I think that everything is transactional. And so where you have these pro-lifers who are motivated by a single principle, and then you have a politician who is motivated just by getting the best deal that he can, do they get it back on the same page?