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June 13th of 2024. Things

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Very inspirational. Hey there,

0:57

it's the NPR Politics Podcast. I'm Asma

0:59

Khalid. I cover the White House. I'm

1:01

Kerri Johnson. I cover the Justice Department.

1:03

And today on the show, the Supreme

1:05

Court's decision to uphold access to the

1:08

abortion medication known as Mifapristone. And to

1:10

help us make sense of this news,

1:12

we are joined by a very special

1:14

guest, my old friend Selena Simmons-Duffin, who

1:16

covers health policy for NPR. It is

1:18

wonderful to have you with us. Thank

1:20

you, Asma. So the Supreme Court unanimously

1:22

rejected this challenge to prescribing and

1:24

dispensing abortion pills. And Kerri, it

1:27

felt surprising to me, frankly,

1:30

to hear that this was a unanimous decision because

1:32

it feels like everything out of the courts is

1:34

hyper-partisan. Can you help us make sense of why

1:37

this decision was unanimous and what it

1:39

was about? Absolutely. It's not that complicated.

1:41

What the unanimous court found in

1:44

a decision written by Justice Brett

1:47

Kavanaugh is that these plaintiffs who

1:49

were seeking to challenge the FDA

1:51

regime for this medication Mifapristone had

1:53

no standing that they had suffered

1:56

no injury. These were in large

1:59

part medical doctors. who did

2:01

not prescribe the drug and

2:03

had no relationship to it really. And

2:06

the court majority basically found you need

2:08

to have a personal stake, you need

2:10

to have suffered some kind of physical

2:12

injury or economic injury in

2:15

order to bring your case to court. Otherwise,

2:17

it would just be a bunch of people

2:19

roaming around the country in search of government

2:21

wrongdoing, really injecting the courts into every possible

2:23

dispute in the country. That is not what

2:25

the courts are for, Justice Kavanaugh found. So

2:28

to be clear, it sounds like they sidestepped

2:30

any questions about the abortion

2:32

issue itself. No ruling

2:34

on the merits, no ruling on the

2:36

substance. These people could not get through

2:38

the courthouse door because this was not

2:40

a case or a controversy. They did

2:42

not have the legal right to sue.

2:45

Got it. Selena, I want to ask you

2:47

more about the medication at hand that we're

2:49

talking about. We mentioned mifrapristone.

2:53

What is it and how big a part of abortion care is

2:55

it in the United States? It's

2:57

huge. It's used for almost

2:59

two-thirds of all abortions in the country. So

3:01

it's a two-drug regiment for medication abortion.

3:04

First you take mifrapristone and then

3:06

you take mesoprostol. And those

3:09

two drugs together account for, as I

3:11

said, 63% of abortions in the country.

3:14

It's been approved since 2000, so

3:17

more than two decades of use. The FDA

3:19

says more than 5 million

3:21

Americans have used this drug. Its

3:24

safety profile is very

3:26

impressive. And

3:29

so the objections against it have been

3:31

a little specious when they try to point to medical

3:34

or scientific reasons for not making

3:36

this drug available. The

3:39

practical effect of today's decision by the

3:41

Supreme Court is that it leaves in

3:43

place the patchwork system we've been operating

3:45

under since the court overturned the precedents

3:47

in Roe and Planned Parenthood v. Casey

3:49

a couple of years ago. So there

3:51

are like 14 states that

3:54

have a near total abortion

3:56

ban, and these medications would

3:58

not be legally available. available there,

4:02

but they would remain available in the

4:04

other places. And

4:06

as the Justice Department pointed out today,

4:08

this kind of regulatory structure has been

4:10

in place for over 20 years, and

4:13

it's been in place through five different

4:15

presidential administrations, so it would have been

4:17

a really remarkable and extraordinary thing for

4:19

the Corps to have gone

4:22

the other direction in this case. After the

4:24

FDA's regulatory process, yeah. And just to build

4:26

on that, the pharma industry

4:29

was very nervous about this case

4:31

and issued amicus briefs

4:33

saying courts do not

4:35

start questioning the FDA's decision-making

4:38

authority over the approval of drugs.

4:40

You could have a doctor who

4:42

says, I'm morally opposed to Viagra,

4:45

and so therefore I will sue

4:47

to remove Viagra from the market.

4:49

That's the kind of slippery slope

4:51

argument that drug makers and others

4:53

in the pharma industry were making.

4:55

So they also put their heft

4:57

behind keeping this status

4:59

quo in place in this case.

5:03

Is there any sign that you took

5:05

from today's decision that the court is aware

5:07

of the political pressure on this issue,

5:10

not just on the FDA regulation aspect

5:12

of this, but we're talking about abortion

5:14

and reproductive rights, which we know has

5:16

become a huge political issue? I think

5:18

the way politics came into this case

5:20

was that this case was filed in

5:23

the northern district of Texas, and

5:26

it was heard by a lower court judge,

5:28

Matthew Kasmarak, who has a record of

5:31

being a very anti-abortion. And

5:33

so he basically took

5:36

the step of granting these

5:39

plaintiffs request and had to be tamped

5:41

down in part by the very conservative

5:43

Fifth Circuit Court of Appeals, which agreed

5:45

with him in part and disagreed with

5:47

him in part. And the

5:49

consequences were so great for the country that

5:51

the Supreme Court had to step in and

5:53

issue a stay because to have

5:55

gone the way that these plaintiffs wanted to go

5:58

and judge Kasmarak would have wanted to go. wanted

6:00

to go would have been

6:02

a nuclear bomb, basically, for

6:04

the availability of this medication.

6:07

And so this case was such an

6:09

outlier that it doesn't say as much about what

6:11

the Supreme Court wants to do or doesn't want

6:14

to do. It's more about

6:16

the fact that this lower court judge was

6:18

so outside of the mainstream

6:20

in his ruling, in my view. All right. I've

6:23

got a lot more questions, but let's take a quick

6:25

break and we'll be back in a moment. David

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the NPR app today. We're

7:57

back. I want to ask

7:59

you both if we can. a little bit more

8:01

about the politics here of this moment

8:03

because very quickly after the Supreme Court's

8:05

decision came out, we saw statements from

8:08

President Biden and from Vice President Harris,

8:10

essentially warning that Republicans will continue to

8:12

attack access to medication abortion. And

8:15

I want to know from you, let's start with

8:17

you, Carrie, specifically, are these threats

8:20

real? Like, are there real legal threats or

8:22

is this election year fear-mongering? People

8:24

who want to restrict access to medication

8:26

abortion very much view this

8:29

as round two. They are not going

8:31

to stop. In fact, three states tried

8:33

to intervene in this particular case. They

8:37

are Missouri and Idaho

8:39

and Kansas. The Supreme Court didn't

8:41

deal with their concerns and

8:43

their claims, but this case could then go

8:45

back to the lower court judge in Texas.

8:48

And so those three states could advance arguments

8:51

before that judge on

8:53

the same set of issues or

8:55

similar issues. And then, of course,

8:57

there are other efforts to restrict

8:59

access to medication abortion, including something

9:02

that people aligned with former

9:04

president and current GOP front-runner

9:06

Donald Trump had been saying.

9:09

They want to basically revive an 1800s

9:12

era law that would make it illegal

9:14

to ship these pills in the mail.

9:16

That is a key issue on the

9:18

table in the election, I think. I

9:20

would just say it seems to me

9:22

like the justices are really sidestepping the

9:24

substance here about abortion and whether abortion

9:27

access should be available via

9:30

telemedicine, via the mail, as

9:32

easy and convenient as it has become at

9:34

this point. Both

9:37

sides are saying that this is not

9:40

the end of things. So, Aaron Hawley,

9:42

the attorney for Alliance Defending

9:45

Freedom who argued the case before the

9:47

justices, said today in a

9:49

statement to reporters that we still have work to

9:51

do. And she says that

9:54

the case was tossed out on a legal technicality

9:56

and they didn't weigh in on the merits. And

9:58

so, ADF is encouraged to hopeful

10:00

that the FDA will be held to account.

10:03

And on the other side, I've talked

10:05

to OBs today who say the status

10:07

quo as they see it is not

10:09

awesome, right? You know, there's, as Carrie

10:11

mentioned, 14 states that ban abortion, more

10:14

than half states that have severe restrictions, plenty

10:17

of restrictions still, you know, being

10:20

worked out in state houses

10:22

around the country. So as reproductive

10:24

rights advocates see it, this is

10:27

like an obvious decision and it

10:29

could have been more disastrous, but

10:32

it's still not a huge win.

10:34

Nobody's celebrating exactly. And I point

10:36

out that Justice Kavanaugh, in his

10:39

opinion for the court, basically said,

10:41

listen, if you have some sincere

10:43

moral and religious objections to

10:46

abortion and the use of these pills,

10:48

then maybe you should go to the FDA.

10:51

Maybe you should go to Congress. Maybe you

10:53

should vote in the next election. And so

10:56

the fight is ongoing in both the

10:58

courts and in the political arena. I

11:00

want to ask you, Carrie, about the

11:03

legality though of other challenges. If

11:05

this FDA tactic didn't work, what's

11:07

the other ways in which folks are trying

11:09

to challenge access to medication abortion? There are

11:11

a number of them. In this

11:13

particular case, there are three states, Missouri,

11:17

Idaho, and Kansas, who tried to

11:19

weigh in. The Supreme Court didn't

11:21

hear their claims, but they're

11:23

going to try to weigh in at the

11:25

lower court level in Texas to say that some

11:27

of those states have near abortion bans. And

11:29

maybe they have different issues that they can

11:31

present that would be more attractive to courts

11:33

and present the kinds of injuries the

11:35

Supreme Court did not find in this

11:37

particular case. There is also, of course,

11:40

a case we're waiting to

11:42

hear a decision on from

11:44

the Supreme Court that involves hospitals

11:46

that receive federal funding and emergency

11:48

medical care. That dispute out of

11:50

Idaho basically raises questions about

11:53

the kind of care that emergency physicians

11:55

are able to provide if the life

11:57

of a woman who's pregnant is is

11:59

in danger in some way, we

12:02

think before July 4th, for sure. Just

12:04

to build off of that, I think what those

12:07

states are arguing is that when

12:09

they have bans on

12:11

abortion in their states, and it

12:13

is possible technically for people in

12:15

their states to receive abortion pills

12:17

in the mail and still have

12:19

abortions, that affects their ability to

12:21

enact the ban. The

12:23

FDA's regulatory process was the focus

12:25

of this particular challenge, and it

12:27

was a very careful process because

12:29

it was under so much scrutiny

12:32

from the beginning, and

12:34

it does also have this

12:37

20-year real-life history of

12:39

safety. So that was a tough

12:42

one, but certainly

12:44

there are going to be other ways, other

12:46

legal avenues for trying to either

12:49

take mifcrystone out of the

12:52

picture completely or at least tamp

12:55

down on the availability. The

12:57

last question, before I let you all go

13:00

today, it sounds like both of you are

13:02

saying that this decision doesn't really turn down

13:04

the temperature at the court

13:06

at all and turn down the temperature

13:08

specifically on issues of access to abortion

13:10

reproductive rights, these really hot button political

13:12

issues. Am I right

13:14

in interpreting that? You don't think that this changes?

13:17

Yeah. I talked to an OB today

13:19

at Louise King at Harvard Medical School

13:21

who's also trained as an attorney, and

13:24

what she just said is that it's basically a

13:26

pause in panic. It's a

13:28

pause button, but nobody thinks that

13:30

the challenges to mifcrystone are over,

13:32

the challenges to abortion are over.

13:34

This is a little bit of

13:36

a momentary break, which

13:39

is probably helpful because

13:41

it's an election year, and

13:44

that more is coming. More is coming down the pike.

13:46

Absolutely. Nobody questions that. Alright,

13:49

let's leave it there for today. Selena, thank you

13:51

so much for joining us. Thanks for

13:53

having me. I'm Asma Khalid, I cover

13:55

the White House. I'm Carrie Johnson, I cover

13:57

the Justice Department. And thank you all, as

13:59

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