The Weekly Show with Jon Stewart - Abortion: Mission Impossible

Episode Date: June 20, 2024

The media may have you believe that the recent Supreme Court decision on Mifepristone was a win for reproductive rights. In reality, it merely upheld the current status quo – a drastic departure from the standard once set by Roe. And an onslaught of challenges, aimed at making abortion impossible, if not illegal, are on the horizon. Joining us to explore this regression we have Melissa Murray, NYU Law Professor and co-host of the Strict Scrutiny Podcast, and Jessica Valenti, founder of AbortionEveryDay.com and author of the forthcoming book, Abortion: Our Bodies, Their Lies, and the Truths We Use to Win. Together, they discuss how our distorted democracy brought us to this moment, unpack the backward slide of abortion rights in America, and offer tips on what we can do to counter this trend.  Follow The Weekly Show with Jon Stewart on social media for more:    > YouTube: https://www.youtube.com/@weeklyshowpodcast > Instagram: https://www.instagram.com/weeklyshowpodcast > TikTok: https://tiktok.com/@weeklyshowpodcast  > X: https://x.com/weeklyshowpod Host/Executive Producer – Jon Stewart Executive Producer – James Dixon Executive Producer – Chris McShane Executive Producer – Caity Gray Lead Producer – Lauren Walker Producer – Brittany Mehmedovic Video Editor & Engineer – Rob Vitolo Audio Editor & Engineer – Nicole Boyce Researcher – Catherine Nouhan Music by Hansdale Hsu — This podcast is brought to you by: ZipRecruiter Try it for free at this exclusive web address: ziprecruiter.com/ZipWeekly   NetSuite For more info, head to netsuite.com/Weekly --- Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hey, everybody. Welcome once again to The Weekly Show with Jon Stewart. I'm Jon Stewart, and I apologize if that was too enthusiastic. I have yet to understand, in terms of a podcast, how to open it up, what level of enthusiasm is appropriate for when people are just listening to something as opposed to on cable television when you're coming in and very clearly somebody's making popcorn or something else. So that may have been too forceful. And I'm sure that our grand producers, Brittany Mimedevic and Lauren Walker, who are here with me, would be able to tell you. Last week, we had our military industrial complex show. We learned, shockingly, that there is waste fraud and abuse in a lot of the budgets of our military industrial complex.

But even more interestingly, we learned that our military industrial complex may be strategically counterproductive. military industrial complex may be strategically counterproductive. We may, we may actually be sowing more chaos than, than we are not. This week's episode is fascinating. So we obviously we have, I don't know if you know this, maybe this is giving the tea on production on a glimpse behind the curtain. We have meetings where we discuss what we would like to cover,

what we would like to talk about. So this week I voted for Celtics Mavericks. Celtics Mavericks, come on. It's the championship. Tatum, Brown, they finally did it. But we're actually going to do abortion. Are you suggesting I vetoed you? No. Why? Lauren, how could you come in in a defensive posture on that? No, we have it's again, we're listen, it's an issue that this Mipha Pristone judgment that came down and was promoted as this win for abortion rights, but was really kind of a just kick the can. There's so much going on around it, but I think more trenchantly, it represents, again,

there is broad support, and we talked about this, for abortion rights, for women. There is a broad democratic majoritarian support. But because of the way our system is set up, that is under full-on assault. And it's just one more thing that I believe has people feeling that our system is not responsive to the needs of the people that it's supposed to represent. Would you guys agree with that? Totally. And I think just to bridge last week's episode and this week's episode, last week, the House voted on the defense bill that included a provision blocking abortion coverage from the Pentagon. abortion coverage from the Pentagon. More specifically, they're trying to reverse a Pentagon policy, which allows service members to be compensated for time off and travel if they need reproductive care.

Right. So it just shows you the attacks come from everywhere, can fit into any bill. Yes. And the extent to which they will not allow it anywhere that there is there is no opportunity small enough for them to inject that in there uh and and that's that's for sure although to be fair it's the house and their knuckleheads and my guess is it probably doesn't get past the senate but who the hell knows anymore with the way things are functioning? Let's fucking hope not. They'll try anyway. Let's hope not.

By the way, that was Brittany Mamedovic with just filthy language. Just if I may, for those of you- Sorry, mom. For those of you at home who are watching, and this podcast obviously is geared towards six to eight-year-olds. I just want to let them know that I did not in any way condone the use of the word fuck. No, of course not. I've learned from the best, though.

No, you've learned from the saltiest speaker of all. So I apologize for all of that. But our guests this week are fabulous to discuss it. So let's get to them right now. Hello. Okay, so we're going to welcome our honored guest, Melissa Murray, our old favorite, NYU law professor, co-host of the Strict Scrutiny podcast, which I say slowly so I don't fumble it, and Jessica Valenti. She's the founder of AbortionEveryday.com and author of the forthcoming

book, Abortion, Our Bodies, Their Lies, and the Truths We Use to Win. Welcome to the conversation. We are discussing ways that our system is somewhat dysfunctional and leads to a certain dissatisfaction with the kind of tenets and foundations of the democracy. And I think the abortion issue is one of those. It's an incredibly complex, complicated issue. There's people of good faith on all sides. Then there's also those that have weaponized it.

But it felt like after Roe, the country had found kind of a status quo that felt majoritarian to some extent. But the forces of the anti-abortion movement have chipped away at that through legal means. But we also want to get to, you know, we kind of have this idea that the things they can't make illegal,

they make impossible. And so I wanted to start there. Jessica, if I could, I'd start with you. What are some of the things that have been done that aren't necessarily legal challenges, but have made it so that it's unbelievably difficult? I mean, part of the problem is there's so much. And if it's and they're not they're not relying on any one attack, which is really smart. So if one fails, they have a million others waiting in the wings. But I think, you know, the things that I'm most worried about are travel bans, which I feel

like are not getting enough media coverage at all. People sort of don't know that they exist, or they think that it's something we don't have to worry about, because right now it's primarily targeted towards teenagers. And all the little sort of chipping away things that they're doing around mifepristone and abortion medication specifically because they know that that's how people in anti-choice states are ending their pregnancies, right? There was some new numbers that came out that showed 8,000 people a month were getting pills from pro-choice states. And so they know that women are getting around their bans. They're really pissed off about it. And so they're sort of

doing everything that they can to, as you said, make it impossible to get. Melissa, let me ask you. So that brings up how they're doing it legally. So they're setting these boundaries. I don't know much about how a travel ban is placed legislatively or is enforced. And Mifepristone, the big news was, oh, that ban failed at the Supreme Court. But it's not as simple as that, is it? It was actually not a particularly robust victory, no? No, I think that's right. Thanks for having me. It's great to be back. Let me add on. Anytime. Anytime, Melissa. if you wanted an abortion, that you had to travel and take time off of work if you wanted to do this and have an ultrasound, and all of these things that were medically unnecessary but were designed to chill individuals from wanting to go through with this and to have abortions. We come to accept that as normal.

And now in this post-Roe landscape, we are coming to accept the fact that a quote-unquote normal ban is one that prohibits abortion at 15 weeks. You were exactly right about this new Supreme Court opinion that was just released. It preserves the status quo. And I just want to underscore that. That's not great. The status quo is shitty. And so it preserves that shitty status quo. And I think the way to think about that challenge- What is this, when you say the status quo, what do you mean by that? So the court in this case, this was a challenge to Mifepristone,

which is one of the drugs in the two-drug medication abortion protocol. And it was a challenge to the FDA's approval of Mifepristone and then also to the FDA's regulations that were released during the pandemic that made Mifepristone easier to access because it allowed for its distribution

through the mail. You could do telehealth or something like that. Right, you could do telehealth, all of that. Right, you could telehealth, all of that. I think the way for your listeners to think about this challenge to Mifepristone and those regulations is that this was the anti-choice movement's effort to ban abortion in blue states where it's accepted, where the constituents want access to reproductive freedom. So it is completely anti-democratic because they are importing their red state values into these other places. So I want to make that clear.

The status quo that we have now is we have a patchwork where red states ban it and blue states allow for it. And there's some crossover because women who want this will go to blue states or will seek out help from blue state physicians. And that's what they're trying to end. And that's basically what the Supreme Court preserved. This was not a decision on the merits. They never got into whether the FDA- This was on standing, right? It was on this jurisdictional question of standing. Were these anti-choice doctors, the Alliance for Hippocratic Medicine, were they the right plaintiffs to be bringing this case? Because they had never prescribed mifepristone, nor had they ever had a patient who had been harmed by

mifepristone because- Nor are they Hippocratic. Well, they're hypocritical, but not Hippocratic. No, but not Hippocratic. No one, like there are very few women who have ever been harmed by mifepristone because the drug is incredibly safe. And so it was a real challenge for them to actually find plaintiffs who could make out an actual injury to challenge the regulations of this law. And so instead, you had these doctors making absolutely specious claims that their injury was in losing the aesthetic value of seeing a baby born, of seeing their in utero patient brought to life. Wait, that was the injury? It wasn't a physical, oh, they were hurt. It was, they would never have the glory?

It was a generalized grievance, moral objections to abortion. And the court rightly said that that's never been enough under Article III of the Constitution to sustain jurisdiction in federal court. But the fact that we had to go to the Supreme Court to say that is absolutely crazy because everybody knows that. So this should have been struck down well before it got to the court. For God's sakes, they, in the same session, made it so that bump stocks are available. So this thing that actually does bring grievous harm to people through turning a regular gun into a machine gun, yeah, that's cool. But Mifepristone with its imaginary.

But this is the thing, John. So the court issues this decision, says, no, this is a completely specious standing claim. We're going to kick this out of court. We're not even going to decide this on the merits. And then you have the mainstream media heralding this as a victory for reproductive freedom. It's not a victory. Melissa Murray, at long last, have you no decency. Are you suggesting that the mainstream media

has not picked up the nuance of this Supreme Court decision? I will say when I go on MSNBC, I make sure that the nuance is picked up. I don't know that everyone is doing this. But people are talking about this as a victory. It's not a victory. Or if it is, it's a very muted victory. And it's not going to

last. They are going to find new plaintiffs that will challenge us. And the only winner here- It's relentless. Well, but this is the point. The winner here is not the pro-choice movement. It's the court, because the court gets to appear moderate on the issue of abortion at a time when millions of people are galvanized about abortion as an electoral issue. We have an election coming up in a few months. This court does not want to be a part of that election and that narrative. And so this is a win for the court. They get to be moderate. They get to be consensus driven and rule of law oriented. But in fact, they've merely preserved a shitty

status quo that they brought into being. And kicked it down the road. Jessica, I want to ask you because we bring up, you know, we sort of talk about these things in the, well, in red states, it's this and in blue states is this, but it's obviously never as simple. And there are certainly blue cities in red states and red voters in blue states and never the twain shall meet. But the fact is, you know, the hurdles that they put up for people is the thing that is really, I think, made it so difficult for women to make these choices.

You know, Melissa talked earlier about these travel bans and the like. So if you're in a city, a blue city that broadly supports abortion, but you're in a red state, let's go with Houston and Texas. Yeah. What, what is your, what is your option? What is your recourse? I mean, it's really either travel, right? Which you have to have enough money to do. You have to have support to get out of the state or you can get abortion medication shipped to you in the state, but you have to risk, okay, if someone finds out about this, if an ex-boyfriend, someone who doesn't like me, finds out that I had abortion medication shipped to me, they can make my life hell. They can bring a lawsuit because

Texas has the ability to bring civil suits against anyone who aids and abets in an abortion. And so there's a real chilling effect. Wait, what? Go, go, go, go, go, go, go. Oh, yeah, yeah, yeah. Don't bury the lead there. Say that again? Sure. So Texas has something that is sort of informally called the bounty hunter mandate, where you can get- The bounty hunter mandate for pregnant women. Well, this is how they get around it, because they never want to seem as if they're attacking the actual pregnant person. They say anyone other than the pregnant person. So someone who drove them out of state, someone who helped them get abortion medication in one case, and a woman's abusive

ex-husband brought a lawsuit against three of her friends. Yeah. Who helped her to allegedly get abortion medication into the state and end her pregnancy. And so now you're set up with this system where if you have an abusive ex-partner who wants to make you miserable, they can go ahead and they can sue your friends for helping you to get care. And what that means is that all of these people who may have had, you know, the ability to travel, the ability to get abortion medication shipped to them, are terrified. They're terrified that they're going to ruin their partner's life, ruin their friend's life. And I'm sure the doctors then must be terrified that they're

going to get prosecuted as well. All right, quick break. We're back. All right. Let me back this up just for a moment, because these are the things that sort of shock the conscience. But I want to talk about a little bit before this happened. Isn't the pressure that they brought to bear on abortion providers, isn't the pressure they brought to bear of, oh, if you're going to do that kind of care, your facility has to be like a hospital. And you've got, and then through sort of intimidation of the doctors, they made it so that there's very few clinics. So that even within the state, people had overwhelming travel hurdles, especially if they didn't have the kind of resources that, you know, people might

have to have to get that something done, even before these types of more draconian measures have been put into place, haven't they put into place effective bans prior to this? Yeah, I have a guest column at my newsletter today from a woman who lost vision in one of her eyes because her abortion care was delayed in Maryland before Roe was overturned. So they had these laws in place for a really long time. And I think you're talking about TRAP laws, which is targeted regulation of abortion providers. And so, yeah, they did everything that they could, even in pro-choice states. So for example, if you're an abortion provider in a pro-choice state, they say, well, you need to have admitting privileges at a local hospital, right? The

problem is a local hospital is not going to give an abortion provider admitting privileges because they never bring patients there because abortion is so safe that they're not bringing any patients into the hospital. And so they've set up this system where it's essentially impossible. set up this system where it's essentially impossible. Yeah, exactly. And so they just made it increasingly difficult to keep clinics open, even if it was ostensibly legal. Let me ask you a question, Melissa. Is there recourse in states where it's legal to go after other states, let's say, because they're interfering with interstate commerce? If a red state is preventing you from traveling into a blue state for a procedure, couldn't that be construed as interference at some level?

No, I think that's right. And I think there are a number of blue states and blue state AGs that are contemplating the prospect of dormant commerce clause challenges to the fact that essentially these red states are imposing their own public policy preferences on the citizens of blue states who don't share them. And there was actually a very interesting case in the Supreme Court a couple of terms ago, not about abortion, but ironically, about pork production. The state of California had particular rules. Pork production. The state of California, not surprisingly, had particular rules about how the pigs that were slaughtered raised and pastured pork products then basically were exported out to other states that didn't share them. And so I remember the oral argument in this case really keenly because everyone seemed really concerned about the dormant commerce clause and about interstate commerce and the prospect of very large states exerting their will on smaller states. And it didn't seem to be about pork products at all. And I think it actually was a shadow debate for what would happen in

the post-Roe world. And so what was the decision in that case? You know what? Let me let me check on that. I want to make sure that that's right. Are you? Wait, you can't Google during a podcast. That's cheating, Melissa. I just want to make sure. I want to make sure that I'm right. Okay. The court affirmed the dismissal of the complaint. So it's like it's sided with California, but if it were presented in any other context. Almost the same with Mifflin-Kristoff. Right. Almost the same. Well, yeah. I mean, it's the same idea, sort of a jurisdictional question, but I imagine the debate and the disposition of the case might've been really different if it had been something like abortion or guns and not necessarily pork.

That's right. I want to get into that because that's that's interesting to me, because I do think are fallacious and make no sense, but I'd be happy to have you address them anyway. So now you have in Texas, if somebody abets someone in the driving to Illinois or whatever it is. And then they always want to say things like, well, but we do make an exception for the health of the woman if she is in danger. Correct? Is that for the most part? I know there are some that don't. But isn't there an emergency care for the health of the woman? Supposedly.

Yeah. Supposedly. Good luck qualifying. Here's the thing. I think you see it all the time and you see it in the context of the bounty hunter loss. These laws aren't necessarily meant to survive legal challenges. Their greatest efficacy can be in the short term where they chill what would be otherwise lawful conduct. So you're right. There is an exception. So take Texas's law, for example. Texas provides that if you are getting an abortion, it has to be for these sort of exigent circumstances. And those exigent circumstances include when a patient has a, quote, life-threatening condition and is at risk of death or substantial impairment of a major bodily function. But it doesn't define what the substantial impairment of a major bodily function, but it doesn't define what the

substantial impairment of a major bodily function is. Isn't pregnancy in itself, it's not a benign process. Couldn't that be considered a substantial impairment? All of that. And so without actual definitions, it's left to the physicians to make these judgments, knowing that an enterprising attorney general, like say, Ken Paxton might come down really hard on them if he doesn't agree with their medical judgment. So in these circumstances, I think doctors feel like their hands are tied. They know what they would do in their medical judgment. They just don't know where medical judgment begins and the law ends.

And if they take the chance, if they take the risk, there can be real consequences. For them. Legal consequences for them. I mean, legal consequences and collateral consequences. Like, you know, if you are a party to some kind of legal proceeding, even if you ultimately prevail, you have to document that for purposes of licensure and you could have your licensing held up. You might not be able to get insurance. I mean, it's a real conundrum for them. Jessica, has that impacted people in a human way, in a real way? Yeah. I mean, this is what I was going to say. There's right. There's what the law says. And then there's what

actually happens in real life. And from the, yeah, to human beings, which would be nice to think about every once in a while. Human beings, not vessels, Not vessels. Hard. So the example that you gave, right, let's say someone wanted to travel, the person, depending on the county they are in Texas, several counties in Texas have passed what they're calling anti-trafficking laws, abortion trafficking laws that, again, allow a civil suit to be brought against someone who uses the roads of that particular county to bring someone out of state for an abortion. And so it's this slow chipping away at our ability to travel. And that's like a really terrifying thing to me.

Even given the mother's health being in question. Well, this is part of the issue. As Melissa said, there's no real standard on what that means. Wasn't there a case of a woman, there was a woman who she, her, it was an 18-week miscarriage, I think, but the fetus was, her water had broken and wasn't going to survive. But she herself was not in that moment. They have to wait until the exact.

She had to go home and get sepsis. I think she had to go home and get sepsis. Okay. That's Amanda Zyrowski. So here we go. So now we're going to get to, now we're going to flip the thing. And this is all informed by, I think, sort of my experience with this. And this has to do with my family, my wife.

So we won't even get into IVF, which is what we had to do to have children. So it's incredible to me to live in this world now where the children that we desperately wanted would not be able to be had, because if these people get their way, there'd be no IVF. My wife after our second child, IVF. My wife, after our second child, this is after she was born, hemorrhaged. This was probably three days post birth, right? We were home. She was in danger. She needed blood transfusions. We were incredibly fortunate to have good healthcare. We were able to get her in. She was operated on under an emergency basis on that night, right? But my point is this. Pregnancy can always be a risk to a woman's health. This idea that it has to be based on a fetal abnormality or something going wrong, you don't know. And aren't these laws?

So who then is liable? Let's say in the case of our thing, let's say she didn't want to carry that baby to term. She was forced to by the state and post-birth hemorrhaged and died. Well, who's responsible for that? If you can arrest people for abetting somebody driving into Illinois, who is responsible for the death of women who are going to have emergency complications arise? And how come that's not part of the conversation? And what do you think we can do about that? Jessica, I'll ask you first and then Malia. Sure. I mean, this is part of what the case in Texas where 20 women sued Texas for the extreme health issues that they had because

of the abortion ban. And essentially what happened is they blamed the doctors, right? They said the law is not the issue. Any reasonable doctor would have given care at that point. And this is something that they've sort of set themselves up to do for a long time, to blame the doctors, to say, you just don't understand the law. The law is fine as it is. You should have given the care. And so once again, the liability goes to the doctors, given the, you know, the right judge and the right court. If a woman dies in childbirth for a baby that she did not want to have, it is only the doctor that is liable, not the state, for forcing her into that pregnancy.

Melissa, is that correct? That's basically what they're saying. The Texas Supreme Court, SCOTEX, if you will, issued a decision at the end of May on the Zoroski case and basically said, yeah, these seem good to us and doctors know what they're to do and they should do it and they should provide this care. There's not a problem here. And this is a court that's entirely Republican. And this was a unanimous decision from the court and, again, completely stripped of any humanity for either the pregnant patient or the doctor who genuinely is worried about whether or not they're going to lose their livelihood if they make a decision.

And there are patients who are not just at risk of death, but I mean, there's a lot between a valid and viable pregnancy and death. I mean, you can lose your fertility if you go septic, like lots of things can happen. It's not just- But even beyond that, it can create hypertension. It can- Everything. Pregnancy is not a benign process. But John, this goes to your point about democracy. We have right now highly gerrymandered state legislatures who are making these laws. These legislatures are not comprised of physicians. They're not even comprised of women of reproductive age.

It's a lot of men, many men who are not in the same age bandwidth as most women who are in their prime reproductive years. And the idea that your views are being reflected, your interests are being accounted for in the legislative process, that's just a fallacy. I mean, these are geriatric legislators made up of men who are not doctors making laws that will legislate for doctors and their patients. And the legislatures aren't affected by this, but their patients are. And again, I just want to emphasize the way in which the anti-choice movement has ginned up all of this. Like James Bopp, who is the spokesperson, the head of the

National Right to Life Committee, argues that the physicians are the problem. The laws are clear. Committee argues that the physicians are the problem. The laws are clear. And if they're not clear enough for the physicians, the onus is on the physicians to suggest fixes. That's literally what he says. They should suggest the fixes. Doctors aren't legislators. Whose job is it? It's the legislature's job. But it's also, Melissa and Jessica, I want you to address this. There is no fix for a process where some women die. How do you fix pregnancy to make it so that there is no chance that a woman dies? If you force someone to carry a pregnancy, and I understand there's at a certain point in the development of the fetus and the embryo or the embryo to the fetus and that the rights

of both tend to converge, right? I get that. But starting on that journey, you cannot guarantee a woman that you'll be okay. You just can't. No, especially in the US, right? Where maternal mortality is so awful. But anywhere.

Right. And I have to say, just getting back to the scenario we were talking about before, even if someone is able to get that health-indicated, life-saving abortion, in a lot of these states, because they've written the law in such a way that instead of giving standard abortion procedures, they're giving women C-sections or forcing them into vaginal labor even before viability, even when they know

that there's no chance for the fetus's survival. And this is one of the ways that doctors are trying to protect themselves from liability, but it's also written in the laws. If a life-saving care is needed and they need to end the pregnancy, you need to give them eternal fetal separation, which means C-section or forced vaginal labor. And it's just getting back to the actual real life suffering that is happening. That's for some women, that's the best case scenario that the life-saving care that they get is unnecessary, you know, major abdominal surgery. But John, this goes back to the point I think you made earlier. We're fighting for the shards

of reproductive freedom, like the opportunity to have physicians make exigent decisions on behalf of their pregnant patients. We're not fighting upstream for what would reproductive freedom look like in an ideal world, because for now, that is gone. I mean, the court preserved the status quo on Mephepristone. There are already three states who are teed up and ready to bring that case on the ground that they have been injured by the fact that... With different standing, right? Yeah, they have a different claim of standing.

Their claim is going to be that as anti-abortion states, the availability of Mifepristone and medication abortion flouts their ability to regulate abortion in their states. But can't that be flipped? Melissa, can't that be flipped? Melissa, can't that be flipped? So let's say there is a family that lost a daughter, a wife, because they were forced to endure a pregnancy and they died during that pregnancy. And can't that then be flipped? But let me also, and this may be far afield. It could be flipped. I mean, here's the thing. We're literally contemplating scenarios where our victories are built on the backs of dead women. No, no, no. Listen, Melissa, this is an awful scenario. I am literally just trying to figure

out how you battle this relentlessness. I think you battle, like that's a, I mean, that's how Roe came into being, like stories like Jerry Santoro, who was a mother of two who was literally butchered in a hotel room trying to end a pregnancy she did not want. Let me ask you, is there any other law that compels a person ostensibly to save someone else's life? So the idea being, well, the abortion is to save a baby's life once it reaches a certain gestational age and do the thing. But let's say, for instance, my kidney would, if I were to give it to somebody, it would

save their life. Could I ever be compelled to do that? You're never placed in a situation, human beings, other than like the military draft, where the government compels you to do something where you might lose your life or have otherwise harm. But we're doing this to women, are we not? We're compelling them. So I don't know, outside of Prince Harry, who says in his autobiography, Spare, that he was born to allow for extra organs for Prince William, if they were necessary, like leaving that to the side.

Like, you know, yours, your example is an extreme one. But I think the anti-choice movement would put up a different example. And that example would be vaccinations, vaccinations, like the idea that mandatory vaccinations to secure collective public health is an intrusion on your bodily autonomy that you may not want. But again, I think it's a- And there can be harm. There can be harm. I think that's right. There can be harm. I think the differences between a vaccination, even one that is very quickly rolled out in pregnancy and the real harms of pregnancy. I think you can make a pretty clear distinction between those.

But I think that's the example that they use. And in fact, Amy Coney Barrett in the Dobbs oral argument, that was the example that she used. She's like, you know, speaking of bodily autonomy, what about vaccinations? And I was like, oh, here we go again. So, you know, this question of bodily autonomy can go both ways. Like they have made a lot about this in the context of masking and vaccinations. Right. And well, masking abortion is not. But but vaccinations. Well, I mean,

they do make the claim. Yeah. But I mean, they make that claim in those two contexts and seem completely oblivious that you could make the very same arguments in the context of abortion. All right. We'll be right back. All right, let's get back into it. Jessica, is that, you know, for the women that you're trying to uphold and represent, you know, what is in your mind kind of the mental health of a community that feels trapped by this idea and sort of placed into a, you know, a secondary position in society? Right. I mean, I do think, you know, in anti-choice states, it's just constant fear.

I think that's safe to say there's just constant fear. And in pro-choice states, and I have this conversation a lot with my daughter, outside of the immediate physical impact that these bans have on people, it does something to you as a person to know that your country doesn't see you as fully human. Right. Like there is an emotional toll to know that your country doesn't see you as fully human, right? Like there is an emotional toll to know that you don't matter. There was a woman in Oklahoma who, you know, another one of these post-war horror stories where she was miscarrying. She couldn't get care. She had to travel out of state, spend thousands of dollars. And she said, I'm not going to get pregnant again because now I know my life doesn't matter. Now I know I don't count. So why would I ever put myself in that situation? Because as soon as you're pregnant in this country, you do not count. You do not matter. And that's a really

difficult, bitter pill to swallow. Yeah, that's tough. Melissa, are you finding on the horizon, are there the types of legal challenges to this? Where do you see this with a little bit of light at the end of the tunnel? Or do you think a place for imaginative solutions to real problems. If you're in the courts, you're necessarily in a defensive posture. So I'm not thinking about legal solutions for this. I mean, I think there can be cases, but as I said, those are the cases that are going to be built on a foundation of utter tragedy, like literally we'll be litigating from the posture of dead women. You're right. I think the bigger opportunity is in the political or electoral space, right? We live in a distorted democracy.

The court has made it much harder for individuals to register their preferences through representative government because of its rulings on gerrymandering. It's made it harder to register your preferences at the ballot box because of laws that allow for voter suppression. And look, the Constitution is already gerrymandered to favor rural white. A hundred percent. That's how it began. A hundred percent. Yeah. So, I mean, so I just want to say that, like, I understand the challenges, like we truly live in a distorted democracy. We have to recognize the fact of that distortion, but understand that that distortion can be counteracted by overwhelming participation, collective action. Right. So, you know, we have an election coming up. The court is on the ballot in that

election. You know, Justices Thomas and Alito, in addition to having emotional support billionaires, are septuagenarians. And if Donald Trump is elected, they will step down. They will retire the day after the inauguration and they will be replaced by teenagers. And this six to three conservative supermajority not only may be expanded to seven to two or eight to one, it will endure even longer because the judges will be younger. So we are fighting defensively right now in every every forum. But the electoral space is where we have the opportunity to really help counteract this. If you can prevent Donald Trump from appointing new justices to fill Thomas and Alito's seat from filling any other seat, that's to state courts. Those state courts have to be in a position to make rulings that are consistent with the will of the people. We have to have legislatures that are ready to enact constitutional amendments to their state constitutions that would protect reproductive freedom. We can't just focus on the president. We have to be down ballot.

We have to focus on keeping the Senate. The Trump administration was so successful at adding movement conservatives to the federal court, completely transformed the federal court. And the Biden administration has done a great job counteracting some of that. But there needs to be eight more years of work on this. And you've got to have the Senate to do that. So this is not the moment to be divided in our big tent. It's the moment to come together as a big tent to overwhelm the distortion that's tried to divide us and limit our authority. Melissa, that's phenomenal. As my daughter would say, I believe you may have eaten and left no crumbs. I think a, I believe that's it.

I think that's what she said to me. That's what the young people say. The young people say you ate and left no crumbs. That is an unbelievably trenchant and fabulous point. And one that has to be at the forefront because to be frank, the other group is tenacious and strategic and they understand how to overwhelm them and take out the bottom

of that. Jessica, is there anything else that you wanted to add before I let you guys go? Yeah, just building on something Melissa said, it does give me a lot of hope when I think about just how popular abortion rights are. And if we get to that place where we're focusing on the electoral bit, this is an issue that people like to talk about as if it's something the country is evenly split on or irrevocably polarized over. It's not. We're not 50-50. We're not. No. There's been several polls that have come out this year that showed 80%, over 80% of Americans

don't want any government involvement at all in pregnancy. They do not want abortion to be regulated by the law at all. This is something that is really, really important to voters and it goes across parties. So that is something like as horrible as all of this is, and it is horrible to talk about this every day and to write about this and to do this work. It gives me so much hope knowing that Americans really do understand what's at stake and how important this issue is. Well, I thank you guys both so much. Melissa Murray, NYU law professor, co-host of Strict Scrutiny podcast and my go-to.

Melissa, you know you're my go-to. Whenever I get into trouble, I always think, what would Melissa Murray do? How would she break this down? That's what I want to say. I like how you said, I don't call Melissa Murray to be my lawyer, but I do refer to her as my go-to. My go-to. Law, whatever it is. And Jessica Valente, founder of AbortionEveryday.com and author of the forthcoming book, Abortion, Our Bodies, Their Lies, and the Truths We Use to Win. Guys, thank you so much for being here. Thank you. Thank you.

their lies and the truths we use to win. Guys, thank you so much for being here. Thank you. Wow. Look, I don't want to say Melissa Murray blows me away every time I hear from her, but holy God, the information being held in a normal sized head, that's just, she's got a normal sized head and yet all that information. And, and Jessica, you know, you can tell, uh, you know, Melissa's attacking it from a legal sense. Jessica's really feeling, I think the human burden of this. Yeah. And boy, she articulated that so well.

Yeah. The personal story is, I mean, they, they break my heart every time. Like, I just like, I can't wrap my head around the conversations and how this is still happening. But yeah. Well, the way she said it, you know, look, even with these legal victories, remember, it's on the backs of dead women. And you just think, oh, God, that's right. You know, sometimes we forget in these theoretical. And now there's that. Lauren, what was that case in Idaho that's now coming up? The Supreme Court, was that case in idaho that's oh yeah now coming up um the supreme court this term is meant to decide on idaho v united states where idaho is pushing back against a federal law that allows

emergency abortion in the case of the life of the mother so that's a wait literally saying even if the life of the mother is in jeopardy, nope. Sorry. Yeah. Holy shit. So. Well, wow. Just a lot to, certainly a lot to chew on there. And the call to action from Alyssa at the end, I thought was just, boy, what a great reminder of what's really at stake and fabulous. That is the weekly show for this week.

As always, you can't do it without lead producer Lauren Walker, producer Brittany Mimetevic, the man behind the glass, Rob Vitolo, video editor and engineer, audio editor and engineer Nicole Boyce, our fabulous researcher Catherine Nguyen, and as always, executive producers Katie Gray and Chris McShane. Come on. Fantastic. Best in the biz. Best in in the biz for god's sakes where can they find us we are weekly show pod on twitter uh weekly show podcast on instagram threads tiktok and the weekly show with john stewart on youtube we're on instagram yeah we are What would we do on Instagram?

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