#1634 Abortion as the Tip of the Iceberg: the fight for privacy, bodily autonomy, and functional democracy after Dobbs overturning Roe v Wade

Then in the additional Deeper Dive half of the show, there'll be more on criminalizing abortion, abortion extremism in the Republican party, abortion in the legal system, and what there is to do now.

suggested that in the United States, to some degree or another, abortion had always been a crime at any point in pregnancy. he might have said, or might have believed, something similar about contraception.

But the reality was that for much of United States history, Either passing or implementing criminal laws regarding reproduction would have been very difficult, in part because it was all but impossible to identify when someone was pregnant before quickening, or the point at which fetal movement could be detected.

Distinguishing whether a drug was a contraceptive, an abortifacient, or a drug that simply helped people who were having irregular menstruation was all but impossible, and physicians relied on highly unusual and ineffective methods to test whether someone was pregnant or not. Touching someone's abdomen was considered off limits and inappropriate at a time when women and other people who could get pregnant were often hidden behind screens during examinations.

So physicians, to tell if people were pregnant, would do things like examine their noses and mouths, which you might be surprised to learn did not result in reliable diagnoses of pregnancy. So at this time, there was a sort of sense that there were female remedies that might influence pregnancy one way or another. And, for the most part, state laws didn't apply until quickening, the point at which abortion was most often criminalized. There were exceptions to this.

There were laws, for example, poison laws that regulated drugs that could kill pregnant people early in pregnancy, particularly starting in the 1840s after a series of high profile deaths from poisonous concoctions used to end pregnancies. There were some states that treated abortion as a misdemeanor early in pregnancy. There was very little regulation of contraception at all until the late 19th century. And that was to change because of two independent social movements.

The first was what we would view as an anti-abortion movement, though by no means a fetal rights movement, that began in the mid-19th century and was led by physicians in the American Medical Association, including Horatio Storer, who's pictured here. The American Medical Association was new at the time and medical education in general did not in any meaningful way resemble what we would see today. So there were no real licensure rules in a modern sense.

Medical education was completely foreign and often not very credentialized at all. The difference between a so-called regular physician and a midwife or a homeopath selling medicines in the pages of the nation's newspapers was sometimes hard to distinguish. And the doctors in the American Medical Association were looking for a way to set themselves apart professionally. They also were worried about what they saw as a grievously differential birth rate.

What they would have viewed as white women, Anglo Saxon Protestant women, were having fewer children. And as the 19th century continued, this disparity would only grow, so much so that when it had been normal in the United States for decades for the average family to have eight children, that number would decline to three by the end of the century. And disproportionately, Storer worried, that decline was coming in families he viewed as the best American families.

At the same time that immigrant families, disproportionately Catholic, were having more children. He argued, too, that life began not at quickening, but at conception, and that only physicians like him, physicians with the expertise to understand science, knew when life began, and that this was what distinguished them both morally and professionally from the midwives and others who'd disproportionately been serving pregnant people for the centuries before.

Storer lobbied for laws that would punish not only physicians for performing abortions, but patients for procuring them, to use his word. Abortion at this time was still synonymous with miscarriage. So the crime he proposed was the crime of procuring an abortion or miscarriage.

A crime that he proposed should be punished the most harshly when a patient was married, because a married person having an abortion was a married person rejecting their duties to their partner, or in this case, he would say their husband, as much as it was their duties to the nation.

Storer began promoting these laws in state legislatures in the 19th century, and gradually convinced legislatures in most states to introduce laws, although they rejected some of the harshest proposals that Storer introduced. It was relatively unusual for state laws to authorize felony punishments for abortion seekers.

And virtually all, with the sole exception of New Hampshire, included exceptions for the life of the pregnant person, something that Storer also was not particularly concerned about in his proposal. Storer wasn't alone in wanting to regulate reproduction in this era. This handsome gentleman, Anthony Comstock, was part of the picture too. Comstock's proposals were very different though. He was not concerned with what he saw as the taking of fetal life.

He was concerned instead with what he saw as obscenity. So, Comstock's business model first developed in New York in the late 1860s, came about because Comstock, by his own account, was a compulsive masturbator who worried that exposure to pornography was damaging the nation's fabric, for young men and women alike.

He proposed a New York law that would define a much broader class of materials as obscene, everything from medical textbooks to art involving nudes, as well as abortion and contraception, which he defined as obscene, too. Indeed, not just abortion and contraception, but any remedy for female troubles, as he would put it.

Because there was, of course, no way at the time for anyone to discern consistently whether someone was pregnant, or whether a drug acted as a contraceptive, an abortifacient, a menagogue for regulating menstruation or as a placebo or a snake oil remedy. Comstock's model that passed in New York in 1868 then quickly went national.

With the advice of a Supreme Court Justice named William Strong, Comstock went to Congress and convinced them to pass the Comstock Act, which made it a federal crime to mail any of the items listed in the Comstock Act, as well as receive them, subject to up to several years in prison and a hefty fine. So Comstock's perspective was different. He wasn't invested in protection of fetal life. He was invested in stopping sex.

He argued that the problem with abortion and contraception was that if people knew they were available, they would have what he called incentives to crime. Essentially, they would be able, as he put it, to conceal their sin because they would be able to have sex without consequences. And so both of these models quickly spread. There are state Comstock laws.

This was an era when, for the first time, state laws of many parts of the nation criminalized birth control, many of them on Comstock's model. And significantly, there was always a close connection between reproductive rights and freedom of speech. Comstock's model criminalized not only the mailing of items used for things like contraception and abortion, but also information about either one.

So there was always a sense that telling people about how you could get these things or how you could do these things was as deeply problematic in his view as the doing of the things themselves. JONQUILYN HILL - HOST, THE WEEDS: and since the Supreme Court made its decision in Dobbs, overturning Roe v. Wade and the right to an abortion, reproductive rights have been at the center of our national consciousness. Two of the latest headlines come out of Arizona and Florida.

Lots of states have rolled back abortion rights in the wake of the Supreme Court overturning Roe. But something in the Florida state constitution makes this decision particularly interesting. IAN MILLHISER - SENIOR CORRESPONDENT: So, Florida has this provision in its constitution which says that every natural person has the right to be let alone and free from government intrusion into the person's private life.

JONQUILYN HILL - HOST, THE WEEDS: Article 1, Section 23 of the Florida state constitution guarantees a right of privacy. And until the United States Supreme Court overturned Roe v. Wade, abortion had long been considered a private issue. Arizona has similar language in its constitution. It says, "No person shall be disturbed in his private affairs or his home invaded without authority of law."

Despite this language, the Arizona Supreme Court ruled that an 1864 law that makes abortion illegal, except in the case to save the life of the mother, can take effect. That news broke while we were finishing up this very episode. Now, there are differences in the context for the language in these state constitutions. The language in the Arizona state constitution came long before Roe, and Florida's was added post-Roe.

While they're different, they have one thing in common: neither state's Supreme Court found it sufficient to protect the right to abortion. And all of this is evidence that Dobbs has shifted the very concept of privacy in the US. And that has us asking, do we still have a right to privacy? That's the question I posed to my colleague Ian Millhiser. He's a senior correspondent here at Vox, where he covers the Supreme Court. He's been spending a lot of time thinking about this lately.

IAN MILLHISER - SENIOR CORRESPONDENT: So let's talk about what the right to privacy is. This is something that developed really over the course of almost an entire century of various Supreme Court decisions. The idea behind a right to privacy is that there are certain parts of our lives that are private, that the government does not get to decide for us, that we, you know, decide for ourselves after talking to our own families, after praying to our own gods.

And these are decisions like, do I want to have a child? Who should I marry? Who are my sexual partners going to be? How am I going to raise my children? You know, all of these questions, the Supreme Court said over the course of many years, are just not decisions that the government gets to make for you. These are decisions you make for yourself. One of the important components of the right to privacy is, am I going to have a child, when am I going to have a child?

So wrapped up in that was the right to contraception and the right to an abortion. When the Supreme Court struck down Roe v. Wade, when it abolished the constitutional right to an abortion, it claimed that this was an abortion-only decision. You know, Justice Brett Kavanaugh wrote a concurring opinion where he said, 'I'm not coming after any of the other privacy rights. I'm not coming after the right to marry. I'm not coming after the right to contraception'.

And I guess the question is, how much can we trust these guys? And so the answer to your question of, do we still have a right to privacy, is we don't know. The constitutional rights are only as good as the personnel that sit on the courts. JONQUILYN HILL - HOST, THE WEEDS: Yeah, I wonder, is the right to privacy, it seems like it's literally all about the sexy stuff. Like, it's either gender or sex or marriage. It seems like it concentrates on these specific parts of our lives.

IAN MILLHISER - SENIOR CORRESPONDENT: A lot of it is sexy stuff. It's not all sexy stuff. But I think that, if there is a unifying theory, it does tend to be stuff about the family, even sexuality. I mean, the idea is that, you know, when you have a sex partner, they are auditioning to become a member... JONQUILYN HILL - HOST, THE WEEDS: [laughing]...to become a member of your family. IAN MILLHISER - SENIOR CORRESPONDENT: ...to become a member of your family, right! Exactly.

And then when you have sex, there's the potential for creating children., So, you know, that is also tied up in the notion of the family.

So, like, there is this idea that, you know, the way that the United States government is set up, you have the federal government and Congress is responsible for some things, you have state governments and they are responsible for other things, and I think the family was thought of as another zone of autonomy, where there's some things that just don't belong to the government at all. They are family decisions.

And, you know, how you raise your children, your sexuality, whether you use contraception, whether you're going to have a child at a particular moment, all of that got roped into this broader concept that we now call the right to privacy. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: I should say, I know Sue personally. I'm on the board of Planned Parenthood and we've spoken a lot about the state of things, and how urgent everything feels right now.

But when I talked to her for the show, I pitched a conversation about technology's role in reproductive rights. And it's not that she wasn't interested in talking about technology, it's just that she's skeptical about putting too much faith into it. She's worked too hard, and she's seen too much.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Can you give me a lived experience that you've been having of what women are actually going through right now? Yeah, one story that for me, and there's so many stories that could break your heart. This one is a patient from Texas, chronic health condition, traveling here for an abortion, "here" being Los Angeles, so from Texas to Los Angeles, Texas to California, and we asked her for her most recent blood work.

And what she shared was that the second she had even a whisper, an inkling that she might be pregnant, she stopped going to any doctor whatsoever, even as she had this chronic health condition that needs to be regularly managed and monitored, because she doesn't want any record anywhere in any system in Texas that could suggest that she might be pregnant. Now that would be true on paper.

That's not specific to technology, as opposed to on paper, but when we think about what that means in the context of technology, it's horrifying to me. I just don't live in that world today, and nor do the people who I see traveling across state lines for what we know is very safe healthcare, but that is criminalized, marginalized, and increasingly creating victims.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: In the United States, even before Dobbs, people seeking abortions faced unique challenges. Despite the right to an abortion being enshrined in the Constitution, some states still put plenty of obstacles in the way. And now, without Roe, there are some terrifying new obstacles.

One of the early data points in this post-Roe era tells us that one in three women who are pregnant or seeking abortion who find themselves in the criminal justice system by way of that pregnancy are essentially turned in by healthcare professionals or medical social workers. So, what I worry about when I try to balance what patients need in the moment and the potential for long term consequences and even criminalization is, there is no good answer, right?

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: When you criminalize abortion, you are criminalizing the people who seek abortions. It's a staggering coming together of healthcare and the criminal justice system. Who is out there who could even be in a position to try and tackle this? MELANIE FONTES RAINER: I'm Melanie Fontes Rainer. I am the director at the U. S. Department of Health and Human Services, Office for Civil Rights. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Ah ha!

MELANIE FONTES RAINER: For anyone paying attention, I don't think anything that's happening right now is a surprise, right? I think a lot of this was highly predictable. And so I think in some ways we've been able to try to prepare as much as we can. But there's a deficit of information when it comes to, do people even know that we exist?

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: If you've never heard of the Office of Civil Rights that's inside the U. S. Department of Health and Human Services, to be honest, I hadn't either. MELANIE FONTES RAINER: Every single federal agency has a Office for Civil Rights. We are the second biggest one. Our office is unique to any other civil rights office because we don't just do civil rights, right? So, civil rights is a heavy mandate.

It's a big lift, like non-discrimination in health programs and activities, making sure people are treated properly and getting their entitled benefits. Because we're thinking about what does it mean to be discriminated against because you're pregnant, or what does it mean to now be targeted because of who you are and have your data targeted because of who you are and the kind of health care you're seeking and where you live? But we also do privacy under HIPAA.

We are the only federal office that does both of those things. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: HIPAA is the Health Insurance Portability and Accountability Act. It first passed in 1996, and it was a massive effort on the part of the federal government to do some rulemaking around personal health information, electronic medical records, in particular. You might know it from your own doctor's office. It's HIPAA that grants U. S. patients the right to view their own medical records.

MELANIE FONTES RAINER: So first, if you, Raffi, sought to get your own medical records from your provider, you have a right under HIPAA. It's called the HIPAA right of access provision. You could go in, and for a reasonable cost and a reasonable amount of time, your provider must give you your records. So, that's like a tenet of HIPAA. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: It's also HIPAA that says health care providers have to alert the government if patient data is ever compromised.

MELANIE FONTES RAINER: A hospital system, a dentist, an insurance company, they're required to file a breach report and disclose that to the U. S. Department of Health and Human Services so that the public can know when these breaches happen. Those are the rules that protect your Protected Health Information from impermissible use and disclosure, meaning, did somebody have a permission to use and disclose this data in the first instance? Are they protecting it?

Things like cybersecurity, we have a significant role in enforcement here, and whether or not there's been a breach. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Back when the law passed in 1996, Congress gave themselves three years to come up with a set of national security standards and safeguards for the use of electronic healthcare information, as well as a set of privacy standards for Protected Health Information.

PRESIDENT BILL CLINTON: Every American has a right to know that his or her medical records are protected at all times from falling into the wrong hands, and yet more and more of our medical records are stored electronically. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: That was good. It would take pressure off the states and introduce a framework, not only for privacy, but for what to do when privacy was violated.

PRESIDENT BILL CLINTON: Today, with the click of a mouse, Protected Health Information can easily and now legally be passed around without patient's consent. I am determined to put an end to such violations of privacy.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: So, in 1999, President Clinton announced the first version of what would come to be known as the HIPAA Privacy Rule, although it wouldn't get finalized until 2002, and it wouldn't go into effect until 2003, and it would be significantly modified by the HITECH Act of 2009, as well as the HIPAA Omnibus Rule of 2013. I mean, okay, even by modern congressional standards, this is a really confusing patchwork of laws.

But the HHS Office of Civil Rights has a specially designated role in the HIPAA framework. MELANIE FONTES RAINER: And so, we enforce and implement HIPAA. The HIPAA Privacy, Security, and Breach Notification rules.

The HIPAA Privacy rule gives permissions and those permissions means that covered entities, whether it's a health insurance company or a health provider or a pharmacy, they have discretion as to whether or not they believe that the permission is being met and whether or not they disclose the Protected Health Information.

MARY LOUISE KELLY - HOST, CONSIDER THIS: Abortion rights has been a motivating political issue for generations, and this year might be the most intense for those on both sides of the issue. NPR's Sarah McCammon reports on the anti-abortion rights activists who want to ramp up restrictions, criminalize patients who pursue abortions, and ban procedures like IVF.

NEWS CLIP OF PROTESTOR AT FERTILITY CLINIC: The fruit of the womb is the reward! MARY LOUISE KELLY - HOST, CONSIDER THIS: They were organized by a group of activists who described themselves as abortion abolitionists, who recently spent a long weekend in Charlotte meeting and strategizing. Matthew Wiersma, who's 32, is from Gainesville, Georgia.

Republicans there rushed to pass a law designed to protect providers from legal consequences. T. RUSSELL HUNTER: Pro-lifers are scared to death of that, because IVF has not been thought about. MARY LOUISE KELLY - HOST, CONSIDER THIS: T. Russell Hunter leads Abolitionists Rising, a group of activists that hosted last month's gathering in North Carolina. He accuses mainstream anti-abortion groups of being too willing to accept incremental restrictions and inconsistent in their message.

T. RUSSELL HUNTER: You can't say life begins at conception, okay, but we're going to allow abortion in the first five weeks, you know? Well, if life begins at conception and you believe that human life must be protected, well, you're stuck, logically. MARY LOUISE KELLY - HOST, CONSIDER THIS: Hunter, who is based in Oklahoma, opposes IVF, which often produces extra embryos that are then frozen or destroyed, and he believes that embryos should have legal rights.

Speaking to activists last month, Hunter said that means charging patients who seek abortions, and anyone who helps them, with murder. T. RUSSELL HUNTER: So, we think and we know that the mother is the abortionist, or the father is the abortionist, whoever it is that's the abortionist needs to be punished, and we're not going to lie about it in order to be friends with the world, because that is precisely what the pro-life movement's done, and is doing.

MARY LOUISE KELLY - HOST, CONSIDER THIS: That's a departure from the long standing public position of most anti-abortion rights groups who've argued that women seek abortions under duress and that penalties for violating abortion laws should target providers, not patients themselves. Mary Ziegler is a law professor at the University of California, Davis.

MARY LOUISE KELLY - HOST, CONSIDER THIS: Christine Harhoff lives in Texas and has been involved in anti-abortion activism for well over a decade.

MARY LOUISE KELLY - HOST, CONSIDER THIS: Harhoff says she's frustrated that even after the fall of Roe v. Wade, even in Texas, where abortion is banned, women are still taking abortion pills. She's been talking with lawmakers in Texas and neighboring states like Louisiana and Oklahoma, trying to promote legislation that would treat abortion as identical to homicide.

And the penalty could be anything from nothing at all, if she was truly innocent, truly forced into that abortion, to a fine or community service, to yes, some jail time, and possibly even the death penalty if the court, the judge, the jury all deemed that to be an appropriate penalty for that particular situation. MARY LOUISE KELLY - HOST, CONSIDER THIS: Harhoff's position is by far the minority.

Even among abortion rights opponents, like Kristan Hawkins, president of Students for Life of America, a major anti-abortion group that opposes prosecuting patients.

She's described the fertility industry as underregulated. Rachel Bitecofer, a Democratic political strategist, says the line between the mainstream anti-abortion movement and the abolitionists is quite thin.

MARY LOUISE KELLY - HOST, CONSIDER THIS: So far, abortion abolitionists have been mostly unsuccessful in pushing through laws that define abortion as homicide. But they've made some strides in state legislatures, including a bill that made it to Louisiana's House floor in 2022. In an interview with Time Magazine published last month, former President Trump said he'd be open to letting women who have abortions be prosecuted. He said he'd leave that question up to the states.

The overwhelming focus of the anti-abortion movement in the years after Roe was what they called the Human Life Amendment, a constitutional amendment that would change the meaning of the word "person" in the 14th Amendment to apply to a fertilized egg, or any other, an embryo or fetus.

The Human Life Amendment was so important to the anti abortion movement that when members of Congress suggested it would be easier to get an amendment through that said states had the right to do whatever they wanted about abortion, anti-abortion activists overwhelmingly rejected the idea, saying it would essentially reaffirm Roe, which in their view stood not for the proposition that there was a right to abortion particularly, but that there was no right to life for a fetus.

This struggle for the Human Life Amendment brought the anti-abortion movement into electoral politics, as the movement desperately strived to find allies in Congress and state legislatures who would support a Human Life Amendment.

And it ultimately brought the anti-abortion movement into an alliance with the Republican Party, which in the era of Ronald Reagan came to embrace the movement and the Human Life Amendment as a potential path to power, a way to peel off conservative Catholic and evangelical Protestants who had voted Democratic often for reasons of economics, but who could be convinced to change to the Republican Party as a result of the abortion issue.

It was in this era, too, that the anti-abortion movement stumbled upon a more consequential strategy, what we would think of as kind of incrementalism, or a death of a thousand cuts. And this began with the Hyde Amendment. The Hyde Amendment was the brainchild of Henry Hyde, a long-term legislator from Illinois who proposed that Medicaid patients should be unable to get reimbursed for most or all abortions.

And at the time, the Hyde Amendment, which is part of an appropriations bill, passed with the votes of both Democrats and Republicans, at a time when abortion rights was already becoming a Democratic cause. Why that was in part was because people in the Democratic Party believed the Supreme Court would take care of it and strike down the Hyde Amendment. And it was in part because there was already less emphasis put on access for low income people than would be or really ought to be the case.

The Hyde Amendment passed in 1976, and it had immediately significant impacts. A large percentage of people pursuing abortion in the 1970s in the United States were Medicaid recipients, and by most estimates, upwards of 200 or 250,000 patients each year who otherwise would have had abortions, were prevented from doing so as a result of the Hyde Amendment.

The Hyde Amendment also ensured that people who were low income would have to rely on an intricate network of abortion funds and private charities for money to seek out abortion. And that in some ways is what became of the grassroots of the reproductive rights movement in the immediate aftermath of Roe: they all went in to service and access work. Which is part of what I think explains the lack of somewhat of the visible grassroots in the post-Roe era.

There was, of course, an early reproductive justice movement, too, that argued that what had become the so-called pro-choice movement, which sought to protect the right recognized in Roe, was not enough. And this movement, in part, took its inspiration from an epidemic of sterilization abuse. Women of color in this era and other people of color were being involuntarily sterilized, sometimes under existing eugenic sterilization laws, sometimes under no legal authority at all.

Physicians were notorious in cross parts of the South for offering what they called Mississippi appendectomies, in which patients who went in for childbirth or other services were involuntarily sterilized without their knowledge or consent, again, particularly in states like Mississippi. The problem was particularly acute in Puerto Rico, where large percentages of women at some point in their reproductive lives were sterilized, often with questionable or no consent.

And so activists, like Helen Rodriguez Trias, who's pictured here, argued that any movement for reproductive rights had to be not just a movement for freedom from the government, but a right, a movement that sought to protect people using the power of the government, right? A movement that would say the government should guarantee informed consent, the government should guarantee the means for people who want to have children to have them.

And Rodriguez Trias and her colleagues founded organizations like the Committee to End Sterilization Abuse in 1974 and broader multi-issue groups like a group called CARASA or R2N2, both of which were reproductive justice groups founded in the late 1970s. But none of these groups succeeded in slowing down the attack on abortion rights and other forms of reproductive health care.

Where that attack turned ironically involved two improbable things, Sandra Day O'Connor and Akron, Ohio, which don't usually go together. So Akron, Ohio was the site of an ordinance that had been marketed by the anti-abortion movement as a model for the rest of the country. And it's constitutionality ultimately came before the Supreme Court in 1980, after O'Connor had become Ronald Reagan's first Supreme Court nominee. The anti-abortion movement hated Sandra Day O'Connor.

They thought she was a supporter of abortion rights and a feminist and generally just gross. And, she, to their surprise, dissented from an opinion by the court striking down this Akron ordinance, not only to say the ordinance was constitutional, but to say that Roe itself was fatally flawed. And that if Roe itself was fatally flawed, it was at least deserving of some reconsideration.

So the anti-abortion movement, which had been utterly unable to get a constitutional amendment off the ground, needed a plan B. It was unable to get that constitutional amendment off the ground when Ronald Reagan was in power, when Republicans controlled both houses of Congress, and when it seemed as if Republicans had fared better than usual in state legislative elections.

There was still no prospect of a personhood amendment, and no prospect even of agreement on a second best solution for the anti-abortion movement. So if there was going to be no personhood amendment, what could there be? Well, there could be control of the Supreme Court.

And with control of the Supreme Court, there could be the upholding of more laws like the Hyde Amendment, which would mean less access to abortion, and a right to abortion that would mean very little or less and less in practice, a right that people would feel less compelled or energized to defend. And with that, ultimately, too, in the long term, could be a Supreme Court that would recognize a fetus as a person, in a way that an American public that seemed to reject the principle never might.

And so with this, the anti-abortion movement proceeded to focus on incrementalism, looking for laws that could be argued to be consistent with Roe and then defending them before the courts. And the movement too began to look for arguments that would cement its relationship with an emerging conservative legal movement. RACHEL K. JONES: So we know from decades of medical research that mifepristone is safe, effective, and widely accepted by both patients and providers.

And Guttmacher's own research has established that the majority of abortions are done with medication abortions: 53 percent in 2020. JANINE JACKSON - HOST, COUNTERSPIN: So what would we expect, immediately and then maybe longer term, if this effort to make mifepristone unavailable, if that were to actually go through, what sort of impacts would you be expecting.?

RACHEL K. JONES: Okay, so there's actually a lot that we don't know about what's gonna happen or what would happen if the Supreme Court were to impose restrictions on mifepristone. But again, it's important to recognize that any restrictions that are put in place are not based on medical science. We do know that it would have a devastating--any restrictions that were put in place would have a devastating impact on abortion access. Again, 53% of abortions are medication abortions.

Currently 55% of women in the US--only 55 percent of women in the US live in a county that has an abortion provider, and if mifepristone were taken away, that number would drop to 51%. But it would have a big impact. There are 10 states that would have a substantially larger notable impact. So about 40 percent of clinics in the US only offer medication abortion.

And so again, there's 10 states where if this was taken, if these clinics were taken away, if these providers were taken away, that substantially large proportions of people would no longer have access to abortion. And some of these are states that are actually supportive of abortion rights. States like Colorado, Washington, New Mexico. And again, just one example, in Colorado, it's currently the case that 82 percent of women living in Colorado live in a county that has an abortion provider.

If mifepristone were no longer available, this number would drop to 56%. JANINE JACKSON - HOST, COUNTERSPIN: I think it's important the way that Guttmacher links health and rights, and the way that your work shows that access, sometimes media presented as though we're talking about the United States and rights to access to abortion in the United States, but it varies very much, as you're just indicating, by region, by state, and then also by socioeconomic status.

So there are a number of things to consider here in terms of this potential impact. Yeah. RACHEL K. JONES: Definitely. Again, we know from decades of Guttmacher research on people who have abortions, that it's people in disadvantaged populations, low income populations, people of color, who access abortion at higher rates than other groups.

And so by default, any restriction on abortion, whether it's a complete ban, a gestational ban, a ban on a certain type of method, on a medication abortion, it's going to disproportionately impact these groups that are already, again, at a disadvantage.

JANINE JACKSON - HOST, COUNTERSPIN: Well, and I think particularly when we're talking about medication abortion, if you know, you know, if you never thought about it, then maybe you never thought about it, but there's a difference between having to go to a clinic where maybe you're going to go through a phalanx of red-faced people screaming at you and the ability to access that care in other ways. It's an important distinction. Yeah? RACHEL K. JONES: Definitely.

One of the benefits of medication abortion of mifepristone is that it can be offered via telemedicine. If there's a consultation, it can be done online or over the phone, and then the drugs can be mailed to somebody. There are online pharmacies that can provide medication abortion.

This means that people, right, don't have to travel to a clinic, that they don't have to, in some cases, travel hundreds of miles to get to a clinic, that they don't have to worry about child care and taking off time from work. So, again, medication abortion has the ability to-- has for a number of people made abortion more accessible. JONQUILYN HILL - HOST, THE WEEDS: And I guess that goes back to RBG's argument about, like, No, this is about gender discrimination versus right to privacy.

IAN MILLHISER - SENIOR CORRESPONDENT: Exactly. And this is why, you know, again, if I were to do this from scratch, I think that Justice Ginsburg is correct, that the feminist right, you know, the right to be free from gender discrimination, that is a better source of rights, like the right to contraception and the right to abortion than this right to privacy, which, again, it's developed over 100 years, it's not like this came from nowhere.

But that came from an iterative process of the court exercising its own authority, relying on very vague provisions of the Constitution. JONQUILYN HILL - HOST, THE WEEDS: And you wrote this piece about the right to privacy, and in it, you end it with these four different ways that this can play out. It's almost like a choose your own adventure, except we don't actually get to choose.

There are nine people in black robes that get to do it for us, but what are those scenarios, and how would we get there? IAN MILLHISER - SENIOR CORRESPONDENT: I mean, I will say we do get to choose. All of this is going to be decided, potentially, by the next election, and certainly by upcoming elections. So, one possibility is that Justice Thomas wins, and the right to privacy ceases to exist.

You know, no more contraceptive right, no more right to marry the person you... you know, the government could potentially throw you in jail because they don't like who you're having sex with, in that world. And, that's not going to happen now. I mean, Kavanaugh said he's not going to vote for it. But if Donald Trump is elected and he puts more Clarence Thomas's on the Supreme Court, you know, we could very easily be in that world. I mean, this is going to be decided by this election.

There's two different versions of if Kavanaugh's view prevails. So, like, if we keep the Supreme Court we have forever, and like, Brett Kavanaugh is the king of America, everything depends on what Brett Kavanaugh believes. We know that Brett Kavanaugh has said that he will not, with the exception of abortion, roll back existing rights that the court has already said is part of the right to privacy. So, he's not going to overrule Griswold. He's not going to overrule Lawrence.

The court has not said that a right to gender affirming care is implicit in the right to privacy, and we just don't know where Brett Kavanaugh is going to fall on that. You know, given that he is a conservative Republican, I'm not optimistic that what he thinks is going to be good for trans rights, but, you know, I want to analyze him in a journalistically rigorous way. I have my suspicions about what he thinks about this issue, but we don't know yet.

And then the fourth possibility is, you know, I mentioned that there are Christian right groups that want to use the right to privacy to achieve their own goals. So, you know, it is entirely possible that, if Trump wins, he could just appoint a bunch of hacks to the Supreme Court, and the right to privacy becomes a weapon that's used to, say, target trans inclusive bathroom policies. I should mention there's a fifth possibility that I didn't discuss in my piece.

The fifth possibility is that Biden wins. And if Biden wins, you know, he could potentially replace Thomas and Alito, and then we have Roe v. Wade back. Then we have the full bore right to privacy back in place. So, you know, again, if I have one central message in this entire interview, it's that what the Constitution says does not matter. The right to privacy comes from the vaguest provisions of the Constitution.

You know, if you look at what just happened in Florida, there's no doubt that Florida's privacy amendment, which is much more specific than what's in the U. S. Constitution, was enacted to codify Roe v. Wade. But there's a Republican court in Florida, and so that right doesn't exist anymore. All of this depends on judicial appointments. And at the federal level, judicial appointments are made by the president.

So, you know, the future of the right to privacy is going to be decided, potentially forever, in the next election, and certainly in elections moving forward. You know, who picks the justices will decide whether this right remains robust and whether it remains a right that we recognize as the right to privacy that we have today, or whether it becomes a weapon that's used by the Christian right.

JONQUILYN HILL - HOST, THE WEEDS: It's just all so vague and unpredictable, and I realize it would be very idealistic and, you know, probably more than a little bit naive to expect something like, Oh, let's get a constitutional amendment that says these things explicitly and codifies this right to privacy. And, you know, right now it is up to the interpretation of the Supreme Court. And clearly the makeup of that court changes over time.

Like, you know, we have our eyes on 2024, but there will be a 2028 and a so on and so forth until, you know, Lord knows what happens. But, what options do we have to make it a little more predictable? Like, can it be? Or is this sort of just the nature of the Constitution, the nature of the country? Like, there are just some things that will kind of always be up in the air, depending on who's in power.

IAN MILLHISER - SENIOR CORRESPONDENT: I think one of the biggest lessons from the post-Trump Supreme Court, is that the Constitution means whatever five justices say it means. You know, we didn't lose Roe v. Wade because anything changed in the Constitution itself. The document we have now is virtually identical to the document we had when Roe was handed down. What changed was the membership of the Supreme Court. And that has two big implications.

The first big implication is that politics still matters. If Joe Biden is elected in 2024, he can appoint different justices, and those different justices can give us back Roe v. Wade. Even if he's not elected, you know, one thing that we're seeing right now that's a little surprising is that the Republicans are sort of the dog that caught the car when it comes to abortion.

In Alabama, the state supreme court tried to ban IVF, and approximately five minutes later the Republican state legislature passed a law overturning that because Republicans realized just how horribly unpopular it is. Donald Trump just put out a statement where he sort of hems and haws and says, I'm very proud that I appointed the justice who overruled Roe v. Wade, but also this is a state issue now I don't want Congress to do anything.

And you know, he said that because he knows that the Republican party's position on abortion is unpopular and he's unlikely to get elected if he says what they have historically said about abortion. Now that said, I think that we should be very cautious because, again, the Constitution says whatever five justices say it means. It doesn't matter if Donald Trump is going to sign a law banning abortions. What matters is if he is going to appoint justices who will ban abortions.

So we are in this period where everything is in flux. The Republican Party is running scared. They don't want to do things in the honest way and pass a law banning abortion, but they might be able to be willing to do it in a more underhanded way, and appoint justices who will ban abortion that way.

And it's evolved into a robust public health directory of information and creative campaigns where we suggest and introduce this information in ways that is understandable for people about ways that we can be reclaiming abortion and have agency over this reproductive health need as the country spirals. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Plan C's central operation is to facilitate getting abortion pills to people who need them via the mail. Abortion pills are a reality in all states.

That's kind of the core information that still so many people don't know. Even if you live in this state that has shut down abortion access and all these other ways, you still have options. Pills are not a panacea, I want to say, too. There's always going to be a need for in person care. We advocate for all options to be available.

That's also not the reality that we are living in in the U. S. And so our focus really is on expanding the notion of abortion, introducing this method of abortion pills and self directed care. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Plan C is also committed to providing resources and support for people who get abortions. That includes legal and financial support. But also mental and emotional support as well.

Part of our acknowledgment at Plan C is recognizing the transformative nature of this method of the pills and the opportunity for demedicalization, the opportunity for ultimately the pills to go over the counter. And that recognition is grounded in a global context that all around the world, people in other countries are already doing this by the millions. It's very common, it's more accessible, and it's known to be a method that is safe and effective.

The World Health Organization calls it an essential medicine. All of that is already true. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: As early as 2013, Amy began seeing abortion pills available through online medication vendors. We call them also websites that sell pills. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Many of them were operating overseas, unregulated, and pills would take weeks and weeks to arrive.

So, from early on, Plan C's goal was to provide a safer, quicker alternative to the websites that sell pills. And then... I mean, the beginning of the pandemic was a wild time for everyone, but we were sitting there at our computers going, Oh my gosh, this is the moment. If there was ever a moment to introduce a new idea, which is accessing pills by mail, accessing care virtually, it's now. But then the commerce routes started to shut down.

The flights were stopping, things weren't being imported, and that became a mini crisis that suddenly shipments weren't coming into the US. And so, simultaneously, the providers were looking more and more closely at these restrictions on mailing the pills, questioning, is this really the case? I mean, this is kind of crazy. Most of our other medications, the individual could go online to an online pharmacy and place their order and just do it.

And this particular one has these antiquated requirements that it must be dispensed by a provider. You know, it's very patriarchal. It's very medically unnecessary. And these inquiries were moving forward. Providers were figuring out what they could do. And then the FDA rolled back the restrictions on medication abortion, on Mifepristone, which are called the REMS.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: That stands for Risk Evaluation and Mitigation Strategies, which are drug-specific guidelines put out by the Food and Drug Administration. So suddenly the REMS were lifted and these services popped up.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: So it's just interesting to note again, we're dealing with a convergence of two things here, which shape the future: the permissive environment around telemedicine, due to the pandemic, and the loss of privacy rights, due to Dobbs. With the overturning of Roe, we absolutely updated our information to reflect the changing status, to help people understand the implications of the case and how it impacted state by state access to abortion.

We are also advocating for some digital privacy recommendations on our site, or rather, we're putting them right up top. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Plan C connects with online privacy organizations, like the Digital Defense Fund, in order to provide people with concrete advice for safeguarding their personal data. So, we've spent many years gathering all of the best tips and best practices to present them to folks along the way.

So using privacy-enabled browsing, you know, browsers are typically always tracking people these days. It's gathering this history of what someone has done, where they've gone. There's another recommendation to turn off location services on your phone. That's something that has come up in the abortion issue, of people having a record of their physical location. People are using encrypted text, so there's an app called Signal that folks are using for encrypted texting.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: And real quick, in case you missed it, I talked to Meredith Whitaker, Signal's president, in Episode 2. And oftentimes the providers are recommending that the patient download one of these encrypted services before going back and forth. So that's often baked into the telehealth intake process. There's also recommendations around email. There is a VPN, a virtual private network, that will hide your device's IP address.

You know, it's not that, I don't want to create the impression that all of these services out there are being nefarious. I mean, there's a lot we could talk about, of course, with tech and how data is being collected and used. It's business, right? We think of this in terms of keeping a clean digital footprint.

It's less about surveillance and more about someone who is coming after a person who had an abortion, who's trying to build a case and is trying to collect that digital footprint in order to make the case. So, you know, these are the steps that are recommended in order for that digital footprint to be clean and that person to maintain control over their experience.

RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: I agree with everything you said, but at the same time, it seems desperately unfair that we have to make the care seeker do all this work. Absolutely. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: And that responsibility doesn't fall somewhere else. Like, these are complicated things. Yeah, um, that was a big concern that came up after Dobbs. Every individual's assessing their own risk. It is an information game.

The challenge is to get all this information out there to raise their awareness to the fact that there's a flip side to all of these technologies that track data. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: Yeah. I do appreciate the way that the veil is being lifted for us. I would say, like, I appreciate that actually, yeah, these conversations are happening more openly about what is actually happening with these technologies.

How can we learn more about how they function so that we know what we're opting into. We have no idea what these apps are doing with our data, right? So, now I think we're in the process of swinging back to a place where we have an opportunity to be a little more conscientious about the way we're living our life with technology. RAFFI KRIKORIAN - HOST, TECHNICALLY OPTIMISTIC: It's better if we make explicit choices, not implicit choices.

And I feel like with a lot of this tech, we've just implicitly chosen to use it and don't fully explore the trade offs that we're making. I love, love that description. Yep. There's ways that companies can step up.

That's actually critical, I think, from a human rights lens, that companies that deal in data start to really assess the severity of the situation and take steps to proactively land on the right side of history with this stuff, you know, to protect their users from being caught up in a completely unjust, unconstitutional risk of a legal case against them for seeking their health care.

JAY TOMLINSON - HOST, BEST OF THE LEFT: We've just heard clips, starting with Lectures in History, discussing the history of abortion and contraception in the US. The Weeds, in multiple clips, looked at abortion and the constitutional right to privacy. Technically Optimistic examined how data is being weaponized against pregnant people. Consider This look at the real restriction extremists. Lectures in History described the push for fetal personhood.

And CounterSpin watched the media watch the court on further abortion cases. And those were just the top takes. There's a lot more in the deeper dive section. But first, a reminder that this show is supported by members who get access to bonus episodes, featuring the production crew here, discussing all manner of important and interesting topics often trying to make each other laugh in the process.

To support all of our work and have those bonus episodes delivered seamlessly to the new members-only podcast feed that you'll receive, sign up to support the show at bestoftheleft.com/support. There's a link in the show notes, through our Patreon ,pageor from right inside the Apple podcast app. If regular membership isn't in the cards for you, shoot me an email requesting a financial hardship membership, because we don't let a lack of funds stand in the way of hearing more information.

Now, before we continue on to the deeper dives half the show, I just wanted to add in another element of restricting abortion access that is often overlooked, I think. And since a couple of articles have summed it up real nicely, I'm just going to go ahead and read a bit of each into the record here. So, the first is from The Intercept. "Sterilization, murders, suicide: bans haven't slowed abortions and they're costing lives".

So, this article says, "For women in abusive relationships, to get pregnant is to risk your life. The narrative is well-documented. A violent, intimate partner sensing the impending loss of control over his wife's or girlfriend's body, and the arrival of a competitor for her time and attention, even if he wanted the baby at first, grows increasingly possessive, volatile and assaultive. His menacing behavior erodes not just her freedom but also her will to take care of herself.

She grows depressed, skips prenatal clinic visits, eats poorly, and smokes drinks and uses drugs more, all to the detriment of her own and her fetus's health. Sometimes the partner's violence turns murderous. 'Women who are pregnant or recently gave birth are significantly more likely to be killed by an intimate partner than women of the same age who are neither pregnant nor postpartum,' writes the authors of a new study from Tulane university.

The harder it is to end a pregnancy the more danger women are in. Looking at the states with multiple abortion restrictions alongside their rates of intimate partner homicide committed against women and girls ages 10 to 44, the researchers found a 3.4% rise in the state homicide rate with each restriction enforced between 2014 and 2020. The authors acknowledge the limits of their methodology, but extrapolate that nearly a quarter of those murdered were associated with the statutes."

And then from the New Republic magazine article "Dobbs was a gift to domestic abusers", they bring in another element. And it says, "Abusive partners can also use state anti-abortion laws to intimidate and threaten partners who had an abortion. If/When/How operates it's helpline for questions and support about abortion and the law through which it has observed the impact of antiabortion laws and legal cases.

' Before Dobbs people did contact the helpline because they feared an abusive partner could use their abortion or knowledge of a pregnancy against them', said Ling. But since, calls have increased, and with survivors " weighing the risks of their abusive relationship against their access to abortion." Along with the helpline getting more calls, Ling said, “we have seen the threats from abusers become more specific.

Some have threatened to call the police on family members who help them access abortion. Other abusers have falsely claimed it is a crime to leave the state, or [that] their victim has to have their consent to get an abortion. And abusers are weaponizing the rising abortion stigma against their victims, suggesting that their decision to get an abortion will harm them in unrelated court proceedings".

So, if you weren't angry enough already, thanks to those writers for highlighting yet another consequence of abortion restrictions. And just in case there's any question, or if you need to respond to any limp objection to this criticism based on the idea that you know, Oh, well, no one intends for abuse to increase, just know it doesn't matter.

Those in the grassroots who support and those in politics who ultimately vote for extremist abortion restrictions, don't get any pass on the consequences of those laws, based on maybe some of those consequences being unintended. Which, by the way is a pretty questionable proposition in and of itself when dealing with mostly religious conservatives who tend to believe in strict father morality and the hierarchical ranking of men above women.

But even for those who may be genuine and feeling bad about increased abuse and murder, due to their policies, that buys you no forgiveness until you work to undo the damage. As for the rest of us, the more harm caused will just act as fuel for the campaign to take our policy back in the same direction. That's going to be it for today. As always, keep the comments coming in. I would love to hear your thoughts or questions about today's topic or anything else.

You can leave a voicemail or send us a text at 202-999-3991, or simply email me to [email protected]. The additional section of the show included clips from Lectures in History, Technically Optimistic, The Weeds, The Thom Hartmann Program, The Brian Lehrer Show and CounterSpin. Further details are in the show notes. Thanks to everyone for listening. Thanks to Deon Clark and Erin Clayton for their research work for the show and participation in our bonus episodes.

Thanks to our Transcriptionist Quartet, Ken, Brian, Ben and Andrew for their volunteer work helping put our transcripts together. Thanks to Amanda Hoffman for all of her work behind the scenes and her bonus show co-hosting. And thanks to all those who already support the show by becoming a member or purchasing gift memberships. You can join them by signing up today at BestOfTheLeft.com/support, through our Patreon page, or from right inside the Apple Podcast app.

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