Stateside with Kai and Carter: Why the fight over abortion in US isn’t finished

17:05Carter Sherman:I found out I was pregnant when I got rushed to the emergency department. I want nothing to do with this man being a part of my life to be able to hurt me again. I would really greatly appreciate the help from y 'all. Thank you.

17:21Carter Sherman:A 29-year-old patient from South Carolina wrote to us to say, just left a domestic violence situation with the father of all the kids. It's only been three weeks of him being in jail, and I just found out. I was a stay-at-home mom for seven years and have literally just started getting all of the balls caught up and figuring out life. I have no idea how to even afford this right now, but I cannot have another. I've had extremely difficult pregnancies and end up hospitalized almost every time, and I don't have a support system to help. And so I fear that if we are unable to provide care through our telemedicine service to patients in states with near total bans or with severe gestational duration restrictions, it's patients like these that are not going to get the care that they need.

18:13Dr Angel Foster:One of the things that was most interesting to me about the ruling from the Supreme Court was actually the dissent that Justice Samuel Alito wrote. And he says that at the heart of this case over Mifepristone is really, quote, the perpetration of a scheme to undermine our decision in Jobs v. Jackson Women's Health Organization, which is, of course, the case that overturned Roe v. Wade. And what Alito is talking about is the existence of shield laws, which are these laws, as you know, that have been passed in states like New York and California and Massachusetts that seek to protect abortion providers from out-of-state prosecutions, even in cases where the providers are mailing pills across state lines into states that ban abortion.

18:56Dr Angel Foster:abortion. The Massachusetts SHIELD law is, of course, what makes the map possible. When you saw Alito's dissent, when you saw that he is so skeptical of SHIELD laws, what did you think? What did you make of that decision?

19:13Carter Sherman:I'm not a lawyer, but when I read the dissent, what immediately came to mind was that Justice Alito was providing a roadmap for anti-abortion actors, anti-abortion rights actors, providing them a road map for how to go after shield law providers, and using language that suggested that there were conspiracies and schemes that involved the pharmaceutical company, the providers, potentially the state, you know, other kind of advocacy groups. This current stay that's been extended of the Fifth Circuit's decision is That's just another step in this process. The anti-abortion rights movement is preoccupied with restricting mefipristone in particular, but medication abortion more generally.

19:59Carter Sherman:And they're doing a lot of things to do that, whether that's these suits that are coming through attorneys general or the lawsuits against individual providers, whether those are criminal or civil suits. And, you know, what we're seeing is the shield laws in states where individual providers have been indicted or sued, the shield laws are doing their job. The shield laws are working.

20:24Dr Angel Foster:We can't anticipate that this is going to happen, but really, cases like this have real implications for you as a person and other providers as individuals. At least two doctors have so far been indicted for allegedly shipping abortion pills across state lines into states that ban abortion. Neither of those doctors have actually been apprehended because they're staying out of Louisiana, which is the state that indicted them. But you could be next. What kind of precautions do you take to protect yourself?

20:57Carter Sherman:Everybody who's involved with the MAP has done their own kind of individual risk assessment to determine what makes the most sense for each person. In my case, because I'm the most public-facing person involved with the map, I don't travel to or through states with near-total abortion bans or states with gestational duration restrictions. I don't drive a car outside of Massachusetts, and I fly into the country. When I leave the U.S., I fly back through Canada.

21:30Dr Angel Foster:Why don't you drive a car in states outside of Massachusetts?

21:32Carter Sherman:So this is interesting information that I would never have thought of, but this is advice that came from lawyers. It turns out that for, you know, in general, for people who are law abiding, the time when you have the most contact or the time at which you are at most risk of having contact with law enforcement agencies is when you drive a car. Traffic violations, car accidents, witnessing a car accident, anything like that. And if you can imagine, I'm outside of Massachusetts. It turns out that there's some kind of either subpoena or warrant or something that's been issued against me. I get into a car accident, somebody in another state, even a friendly state in New England, runs my name, and that pops up.

22:14Carter Sherman:And so one of the things that lawyers have advised is that's another way to decrease or minimize risk is just to not put yourself in a place where you're vulnerable for getting pulled over.

22:25Dr Angel Foster:If you don't go to red states, do you feel like your life has been curtailed at all? Are you missing out on things?

22:33Carter Sherman:I think the biggest thing for me is that my mom and stepdad live in South Carolina. So I'm not able to visit them in person there and haven't for over two and a half years. And that makes me sad. We see each other in other places and we made the decision as a family that this is what we wanted to do. And my husband's been really supportive of that. but that does make me sad.

22:56Dr Angel Foster:I mean, I feel like what you're doing is, it's kind of radical. Like, it is a risk. Providing abortion can be a really dangerous business. 11 people have been killed in anti-abortion violence. There have been hundreds of arson attacks, of bombings, of butyric acid attacks. You keep the physical location of the map itself, your offices, a secret. Do you worry at all that when abortion is back in the headlines like this, that you or the people who volunteer with the MAP are in actual danger?

23:25Carter Sherman:I mean, we certainly all think about it and have decided collectively that that risk is worth it because the care that we're providing is so important.

23:37Dr Angel Foster:After the Supreme Court ruling came out on Thursday evening, Louisiana's Attorney General, Liz Murrell, said, quote, It's shocking that the Supreme Court would block the common sense return to medically ethical practices and oversight. DOJ did not defend Big Pharma, which is profiting from the illegal and unethical distribution of abortion pills. We will keep fighting. What do you feel like that fight is going to look like next? Where do you think the anti-abortion movement is going to attack next?

24:05Carter Sherman:Well, I certainly think there's going to be a sort of multi-pronged attack on medication abortion pills in general and on mifepristone in particular. But the thing that I'm watching, and again, I say this as a non-lawyer, but as someone who's been following what's going on in state legislatures, what I see in terms of anti-abortion movement rhetoric, is that I fear that there is going to be a continued push to criminalize the abortion patient. And, you know, 10 years ago, this was almost unthinkable that the anti-abortion rights movement would say out loud that a strategy for reducing the number of abortions was to put abortion seekers or abortion patients in jail.

24:47Carter Sherman:But now we're seeing more and more of this conversation in the press, and we're also seeing state legislatures kind of taking this up. And, you know, that is just, that's just devastating. That's just so awful. It's only a handful of countries in the world where there are abortion bans, where women and other pregnancy-capable people have actually gone to jail. So it really, that is, it's upsetting that I think this is the direction. And I think part of the reason that this is the direction that at least some part of the anti-abortion rights movement is going in is because the number of abortions have actually increased since Dobbs.

25:29Carter Sherman:And even if shilbaugh providers all went away tomorrow, even if mifepristone by telemedicine was no longer available, people will still be able to get mifepristone and misoprostol. They'll be able to get that through community networks. They'll be able to get medication abortion pills through international clinics. That's not going to go away.

25:47Dr Angel Foster:Yeah, I mean, I can say as someone who covered abortion rights for 10 years, I was really struck by how in the last year, I think it was about a dozen states introduced laws that would have criminalized that would have treated abortion as homicide, which is to say women who got abortions would be treated as murderers and faced criminal consequences accordingly. And the thing is, you know, these proposals get introduced every year, but they usually, I feel like, draw more outrage and controversy. And then in the last year, it was just sort of like, oh, this is maybe an increasingly normal thing to propose.

26:25Dr Angel Foster:Maybe it's not something that people need to get us up in arms about. And I was really struck by, it seems like, the normalization of this idea, which is incredibly politically unpopular, even among most of the anti-abortion movement.

26:36Carter Sherman:I agree with you. I mean, I think we're seeing some slight shifts in the Overton window. And I think this is a good example of that where, you know, I think back to when when Donald Trump was running the first time and was asked on was asked in an interview about whether or not a woman who has an abortion should go to jail if abortion is illegal. And he said yes. And it felt like the entire anti-abortion rights community at that point was like, no, that's not the message. You can't say that. That's not the right thing we're pushing for. That is not what we're doing and had to do this whole backtracking of that.

27:13Carter Sherman:And, you know, that was a little that was 10 years ago. And now I agree with you. It's not that these not that fetal personhood bills have never been introduced or no one's thought about this before. But the way that they're being discussed, the fact that they're actually being debated, the fact that organizations are anti-abortion rights movement organizations are issuing statements about them, it really does feel like there's a bit of a shifted tide. Dr.

27:39Dr Angel Foster:Angel Foster, thank you so much for your time. Thank you.

27:50Dr Angel Foster:I think some people might hear Dr. Foster talk about the idea that the anti-abortion movement is going to criminalize women and think that that is a Looney Tunes take. I think it's a terrifying thing. I think that that is also a valid response. And I think that a lot of people are taking comfort in the fact that within the mainstream pro-life movement, quote unquote, that this is not a politically popular position. This is not what most people in the mainstream want to see happen. But I can say, as someone who has covered this issue for many, many years, the idea that we would criminalize women for abortions has slowly but surely started to creep into mainstream thought.

28:27Dr Angel Foster:Do I think that this is something we're going to see anti-abortion activists embrace in the next year? No. Do I think we might start to see it in the next 10 years? Very possibly.

28:35Carter Sherman:Certainly the lesson of American history and the lesson of this modern conservative movement is believe them when they tell you something.

28:43Dr Angel Foster:Right. And if they're floating up ideas today, then within the next five to 10 years, we're going to start to see those things take the shape of laws. All right.

28:51Carter Sherman:So then what are the realistic, like imminent threats that you're looking at right now that makes you feel like we are at the near the end game on having access to any abortion rights anywhere in the country?

29:04Dr Angel Foster:Well, I think there are four major threats to abortion access that are imminent and that I am watching very closely. Those are the things that I wanted to talk about because I do feel like, again, if you are someone who cares about abortion rights, you need to know about these things because they can sneak up on you if you're not paying close attention. The first threat is that there are lots of lawsuits around mifepristone and around access to abortion pills. This lawsuit, the one that made its way up to the Supreme Court from the Fifth Circuit, that is going to continue. It will likely get appealed at the Fifth Circuit.

29:34Dr Angel Foster:It may ultimately go back to the Supreme Court for oral arguments. But there are other lawsuits that have also been filed. Most notably, there was a lawsuit filed by the Republican Attorneys General of Kansas, Missouri, and Idaho that has also asked for the FDA to limit access to mifepristone. They even recently filed paperwork while this case at the Supreme Court was ongoing saying, we want to push forward. We want to continue with this lawsuit and see what we can get. The second threat that I'm following was actually mentioned in this most recent Supreme Court ruling. There are two dissents in this case.

30:07Dr Angel Foster:One of them was written by Samuel Alito and the other was written by Clarence Thomas. These are two of the most hardline right wing people on the Supreme Court, and they have a track record of citing against abortion rights. They both, in fact, joined the conservative majority in overturning Roe v. Wade. So I want to start, Kai, by asking you to read from Alito's dissent. If you can give me your best Samuel Alito here.

30:34Carter Sherman:Oh, the things that I do for this job.

30:39Dr Angel Foster:I am so sorry. I really, really am.

30:43Carter Sherman:Okay, here we go. So this is Samuel Alito writing. He says, quote, States, including Louisiana, made abortion illegal except in narrow circumstances. But Louisiana's efforts have been thwarted by certain medical providers, private organizations, and states that abhor laws like Louisiana's and seek to undermine their enforcement. These medical providers and private organizations have developed an operation enabling women. Enabling women. Can you believe these women being enabled? Enabling women in Louisiana and other states that restrict abortions to place an online order for a pill called mifepristone that induces abortion.

31:28Dr Angel Foster:I am going to thank Samuel Alito for reminding us what mifepristone is because, again, it's confusing. And I will just translate what he just said, because it's dense, it's legally easy. Remember, this was a case that was brought out of Louisiana, a state that has banned virtually all abortions. In this operation, quote unquote, that Alito was talking about, he is talking about the exact kind of operations that are run by people like Dr. Angel Foster and her colleagues. Dr. Foster and I talked about this a little bit, but her work is made possible entirely by the existence of this novel legal strategy called shield laws.

32:01Dr Angel Foster:Do you know what these are?

32:02Carter Sherman:Yeah. So these are the laws that some states like New York pass to say, OK, if you are providing abortion services here, we are going to protect you from prosecution by some outside state that wants to come and grab you.

32:14Dr Angel Foster:Exactly. And in some of these states, including New York, including Massachusetts, including California, they have specifically said that it doesn't matter where the abortion patient is located. So if I am an abortion provider in New York City and I never leave the boundaries of my state and I mail an abortion pill to someone in, say, Texas, I can still be protected by the shield law, at least in theory, because a New York official is not going to assist Texas if they try to come after me and try to prosecute me.

32:42Carter Sherman:But Texas will certainly try to come after you.

32:44Dr Angel Foster:I mean, we've already started to see it. We've already started to see many red states getting really angry about these shield laws and trying to sue or even indict people who are allegedly shipping abortion pills across state lines into red states.

32:58Carter Sherman:And so why exactly has Alito brought this up in the course of this ruling?

33:02Dr Angel Foster:I mean, it's speculative, but I do think that Dr. Foster is right when she says that Alito is trying to draw a roadmap for anti-abortion advocates who are trying to figure out how to continue to undermine S.H.I.E.L.D. laws.

33:16Carter Sherman:Like inviting for future cases.

33:19Dr Angel Foster:Potentially, yeah. Maybe he's sending up some kind of smoke signal to say, hey, I'm not a huge fan of abortion. I'm not a huge fan of shield laws. Bring me something that will allow me to say that in writing from the highest court in the nation.

33:32Carter Sherman:Which is what a lot of people were concerned about in Clarence Thomas's concurring opinion in getting rid of Roe in the first place, that he was inviting cases to get rid of same-sex marriage under the same kind of case law.

33:44Dr Angel Foster:So thank you so much for bringing up Clarence Thomas. He is actually very critical to the third threat. Remember, this is a list of four possible threats. This is, I would say, the biggest threat to abortion access. And specifically, Clarence Thomas brings up something called the Comstock Act. I can see what you're, I can see the sigh you've just brought up, but I would like you to read what Clarence Thomas said.

34:10Carter Sherman:I'm going to have to read Clarence Thomas on Anthony Comstock. Exactly.

34:15Dr Angel Foster:And if you're listening, we're going to explain this. You're going to hear why Kai has so much consternation already in his voice.

34:23Carter Sherman:This is a low point in my professional life. Okay. Clarence Thomas's opinion reads, quote, It is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using, quote, the males to ship, quote, any drug for producing abortion. Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise.

34:52Dr Angel Foster:Criminal enterprises. So he is saying that the applicants, which, to be clear, are pharmaceutical companies that manufacture Mifepristone. He is saying that they are committing a criminal enterprise because of the Comstock Act. Kai, you know what the Comstock Act is. Do you want to do a little spiel on it? I'll do my best. I'll do my best.

35:14Carter Sherman:I'll fill in the blanks. This is an anti-obscenity law going back to the 1870s in which Anthony Comstock, one of the most despicable people in the history of the United States.

35:26Dr Angel Foster:Which, you know, that's a rare distinction. It's a rare distinction. There's been a lot of despicable people in the U.S. history.

35:32Carter Sherman:Even in his time, no one liked him. Like none of his allies didn't like him. He was this guy who collected dildos and sex toys and things.

35:44Dr Angel Foster:They were called rubber products in the literature of the time.

35:47Carter Sherman:He had an obsession with anything that produced pleasure, particularly for women. And he kind of was the pioneer of the idea of vice. And so this law, the Comstock Act, was a way to prosecute people who engaged in, quote, vice by chasing down things they sent through the mail because that lets you use federal law.

36:10Dr Angel Foster:Exactly right. Anthony Comstock loved to just run around New York City and harass people who he saw as doing obscene things. And the Comstock Act in particular banned mailing, quote, any article or thing designed or intended for procuring an abortion. Now, when Roe was in effect, this was really not something that people worried about because Roe v. Wade was the law of the land. Abortion was legal. We don't need to think about whether or not there's this obscure law from the 19th century that bans the mailing of abortion-related materials. And then Roe was overturned. And so now anti-abortion activists have taken a look at this law and said, wait, this is still on the books.

36:48Dr Angel Foster:Is this still good law? We think this is still good law. We think that this zombie law should be enforced. And I just want to say, if the Comstock law was enforced, it would not just be banning the mailing of mifepristone or abortion pills. It could be used to ban all abortion in the United States because even abortion clinics rely on the mail, right? They receive things that they need to do their job through the mail. That's how they can get ultrasound machine equipment. That's how they can get vacuum aspirators. That's how they can get gloves. So the Comstock Act, if it came back to life, could effectively result in a de facto nationwide abortion ban.

37:25Carter Sherman:So this is what you were talking about earlier when you said you think they've already got the tool to wipe out abortion, period, everywhere. It's this. It's the Comstock Act. Exactly. So I hate to ask this, Carter, but like given that the law is operable still, why hasn't the Trump administration done it yet?

37:41Dr Angel Foster:No, this is a great question because I have to be honest, when the Trump administration came back into power, I was prepared to be writing stories about the Comstock Act being in effect and what that would mean for the American people. When Roe was first overturned, Joe Biden was obviously in office. He was the president and his Department of Justice put out some guidance that basically said we are not going to be enforcing the Comstock Act except in some very narrow circumstances. The Trump administration could overturn that guidance. Would people sue over it? Probably. But they could make that call.

38:10Dr Angel Foster:And so the question has been, really, since Trump came back into power, why hasn't he done so? And the thing is that Trump has really tried to run away from the issue of abortion. And so it's very possible that the reason we don't see a revived Comstock Act right now today is because Trump really doesn't want to talk about this issue. Abortion rights are incredibly popular. He knows it. The Republican Party knows it. And Trump, I don't think, really cares all that much about abortion. Like, this is not really his top issue. He has flip-flopped on it a lot. And so I can't imagine he really wants to swing a spotlight back onto it at this time.

38:45Dr Angel Foster:The politics would not be good. Oh, yeah, especially ahead of the midterms. This is not something that I think the GOP really, really wants people to be focused on right now.

38:53Carter Sherman:Nonetheless, this is the thing that's out there. It exists that could, in fact, end abortion. And that is chilling to think about. So there's the cases moving through the courts. there's the shield law attack and there's Anthony Comstock's ghost.

39:13Dr Angel Foster:Thank you. I really appreciate this sum up. This is helpful. I like being listened to like this.

39:18Carter Sherman:But you promised me four. What's the fourth?

39:20Dr Angel Foster:Okay. So the fourth thing is that the Trump administration has taken kind of a baby step to limiting abortion access and the FDA has agreed to review the safety of mifepristone. Now, remember, mifepristone is safe. That is not really something that is up for debate. Nevertheless, the FDA, because it's reviewing it, could change the terms of access to Mifepristone. They could make it harder for abortion providers to mail it. They could make it harder for abortion providers to access it. We don't know what they're going to do, and we don't know when they're going to do it. Anti-abortion activists have actually gotten kind of mad over the FDA review because they feel like it's being slow walked.

39:57Dr Angel Foster:So we will see in the coming months and years if anything ultimately comes out of the FDA.

40:01Carter Sherman:I mean, this depends on them having a functioning FDA in the first place, which has been a challenge.

40:05Dr Angel Foster:Yes, that is the question of whether or not the FDA can do anything at all right now seems to be a big one.

40:11Carter Sherman:So what is like the immediate next thing that you're watching? Like we've got all of this stuff that we know that's on the horizon that you're concerned about. What's like the next next thing?

40:20Dr Angel Foster:I mean, ultimately, abortion is going to end up back at the Supreme Court in some former fashion. We don't really know how much appetite the Supreme Court justices have for this issue. But I think it's become pretty clear since Ro fell that there are so many differences in state laws around abortions. There's so many disagreements around what states owe each other when it comes to enforcing abortion laws that the Supreme Court is probably going to have to weigh in at some point. The thing, though, that I'm really keeping an eye on is what is the anti-abortion movement doing? This is a movement that is incredibly motivated, right?

40:55Dr Angel Foster:If you believe that abortion is the killing of an innocent baby, that's a belief that's probably going to keep you extremely committed. This is a movement that's spent five decades working to overturn Roe v. Wade. They stacked state legislatures with Republicans. They helped create the modern-day conservative majority on the Supreme Court. They are very powerful and they are very, very committed. I think at this point it's pretty clear that the modern-day anti-abortion movement is an undemocratic one because they believe something that is not popular with the majority of Americans. It is a minority that is now trying to enforce its rule on the rest of the country.

41:32Dr Angel Foster:And it seems like the best way for them to do that will likely lie through the nine unelected justices on the Supreme Court. They're not going to stop. There are going to be more court cases. And this movement is going to try very hard to convince the Trump administration or whatever Republican administration comes next to enforce the Comstock Act and to enact that nationwide abortion ban. this is not the time for people to stop paying attention to abortion rights.

42:03Dr Angel Foster:This is Stateside. If you've got follow-ups, questions, thoughts, send us an email or a voice memo to statesidepod at theguardian.com. Follow us on all platforms at Stateside Podcasts. Look out for new episodes every Monday, Wednesday, and Friday. This episode was produced by Suzanne Gabber and Monica Espitia, and edited by Rachel Humphreys. Our engineer is Ivan Koraev. Our social media producer is Russell Kogan. And I'm Carter Sherman. Thanks for spending time with us.

42:45Carter Sherman:This is The Guardian.

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