Uncertainty is a Given: Litigation Post-Roe

Since the Dobbs v. Jackson Women’s Health Organization case which overturned Roe v. Wade was decided, there’s been an abortion access crisis, an assault on legal precedent for abortion protections, and an opportunity to create a stronger and even more inclusive plan to reproductive autonomy than Roe ever provided. Amy Myrick, Senior Council at the Center for Reproductive Rights, sits down to talk with us about legal trends in federal and state courts in the past four years. 

Currently, legal cases have been aimed towards medication abortion and telehealth (a lifeline after Dobbs). It is important to remember that legal attacks on abortion have broader implications, including for transgender health and rights (particularly for young people). Increasingly, anti-abortion actors have had to pivot to tactics that are often blatantly anti-democratic. In several states, ballot amendments have been taken to court.

For more information, check out When Science Finds a Way: https://wellcome.org/insights/podcast

Transcript

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Jennie 0:33

Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. Hi rePROs. How's everybody doing? I'm your host, Jennie Wetter, and my pronouns are she/her. So, I can't believe it is the end of July already. It is so wild. We had four interns in our office this summer, and this week is their last week. And it is so shocking that their 11 weeks with us has flown by so fast. It has been delightful getting to work with them and get to know them. Special shout out to Lauren, who was my intern for rePROs this summer. She did so much helpful work, whether it was helping me prep for interviews, if there were like reports out, and helping me summarize them, which was so helpful. Hopefully, she's got an op-ed coming out soon I'm really excited to get out there. Yeah, so it's just been so wonderful to have her on the team all summer. She has been such a wonderful help. But I have really enjoyed getting to know all the interns who are with us at the office this summer. So thank you all, and best of luck in your future back at Duke. It was so much fun, and I am very sad to see them go. It was been really wonderful to have them. Let's see what else. Maybe a little bit of housekeeping. I feel like it's been a little while since I have done any. One, just make sure you are subscribed to the podcast on whatever your preferred podcast platform is. That way you'll always see new episodes when they come out. If you love the podcast, it'd be awesome if you could like rate and review us on that platform. It helps us attract other people who may want to check out the podcast. So that would be amazing. I would appreciate it. Let's see what else. If you want to support the podcast, you can always donate on our website. Um, and we still have a giveaway that if you give $50, you get these fun-free stickers done by Liberal Jane that we have. And if you give $100, you get the stickers and a wonderful tote bag that says "abortion: it's human right, not a dirty word." I love it. I am so sad that we are gonna be getting a new design. Not that I don't love the new design we have, but I really love that bag. It's like bright fuchsia pink [with in] huge letters abortion. It just- it's great. I love taking it around. Let's see if there's anything else. Oh, and we should mention obviously our Bonfire store. You can get all of those sticker designs we have, but can get it on t-shirts and mugs and water bottles and things like that. So definitely check out our Bonfire store. The link to that is in our show notes. Same with the link to donate. So definitely check it out. Let's see, I think those are like the big things going on. I feel like the last couple weeks, I feel like in theory, should have been slower for me. Like the, I feel like I have had a little bit less happening, but yet somehow they have been just chaotic, and I expect that to continue for the next little while, but I am very much looking forward to taking a chill weekend to just recover from all of the things. So, I think with that, let's get to this week's interview. I'm so excited to have with me this week Amy Myrick with the Center for Reproductive Rights. We are talking about a new report that the Center for Reproductive Rights put out looking at four years post-Dobbs and where we are with litigation since then around reproductive rights in general, not just abortion. So, we had a great conversation and I hope you all enjoy it. So, with that, let's go to my interview with Amy. Hi, Amy. Thank you so much for being here today. Great to be here. I am so excited to have you. Before we get started, though, would you like to take a second and introduce yourself?

Amy 4:25

Sure, I am Amy Myrick. I am senior counsel here at the Center for Reproductive Rights. I have been here since 2015. So I actually joined when we had another Supreme Court case on abortion, Whole Women's Health. And at that point, abortion rights looked like they were kind of headed in a good direction in the federal courts and with the Supreme Court. Then there was June Medical just a few years later. It looks like abortion rights were pretty stable at that point. And then, of course, there was Dobbs. So that was a legal see change, like nothing that had ever happened before. And my time at the center is kind of overlapped with these major shifts that we and our movement have had to deal with.

Jennie 5:08

Oh yeah. I remember uh my office is right behind the Supreme Court, so like I remember being out front for whole women's health when it was argued, and like go I'm pretty sure I was there on decision day and like all of the things, and yeah, it is kind of a sea change from from that to where we are now.

Amy 5:29

Isn't it kind of funny how there are a lot of like really personal memories too wrapped up in it, including even just like being cold and those lines outside the Supreme Court?

Jennie 5:37

Yes.

Amy 5:38

But it's also major history.

Jennie 5:40

One of them it was, like, snowing. I kind of feel like it was a birth control case. It was snowing a little bit.

Amy 5:47

Yes.

Jennie 5:48

And I like had my sign and I was walking back to my office, and I got my sign was like wet, so it like folded it up, but it was still in my hand, and getting yelled at by the Supreme Court guards because I was within their buffer zone. And so they made me walk back and then like all the way around the outside of the block instead of taking the inner pathway, which would have taken me right to my office. I was so irritated.

Amy 6:15

One way to stay warm.

Jennie 6:16

I was like, seriously? Well, I'm so glad you were here, and you know, so much has happened since the Dobbs decision. It's good to like take a step back a little bit and and talk about what the fight for repro rights has kind of looked like since then. You know, you get so caught in the like, what is happening in this moment that it's nice to see where we have come since then.

Amy 6:42

Yeah, I think four years [later], we know a lot more now than we did the day after. So it is a good moment to try to look at some trends and figure out where we've been and maybe where we're going.

Jennie 6:53

So, how has it evolved since the Dobbs decision?

Amy 6:56

So, we know Roe was far from a great decision. It had all its problems with not protecting reproductive rights strongly and was also incredibly unequal in all the ways that it didn't recognize that the ability to access abortion depends on resources and the history of racism and gender inequality that informs everything that happens with reproductive rights in this country. But still, when we lost Roe, it was this legal reckoning on a scale that had never happened before. The first thing, of course, was the access crisis. So, like the day after, almost half the states immediately tried to ban or really restrict abortion. But apart from that, there had been 50 years of imperfect legal precedent but that had provided some level of stability for abortion rights in the courts. And this was the first time the Supreme Court had ever overturned a right, leaving kind of no basis for continuing litigation of that kind. At the time of Dobbs, there were dozens of cases in federal court, and most had been moderately successful at keeping laws blocked. We had like full bans blocked, reason bans, D&E, trap laws, fetal tissue disposal, there are all kinds of, like, next generation things floating around at that time from the antis. So right after Dobbs, it was just unclear what would happen to litigation. And the big question, of course, was: do the courts offer any path forward toward the ultimate goal, which is trying to rebuild the right to reproductive autonomy that's stronger and better than Roe? So it was kind of like, what's next? Is there a future for litigation? And there was kind of a big question mark around that. Four years later, I think we've really tried a lot of things. So, we just worked on this report trying to synthesize trends, really looking at number one, what's happening in state court, where a lot of the activity has moved, which we can talk about what's happening in federal court, and there is still stuff happening. It's just much harder to get a handle on, and in some ways that's worrisome because some of the things that don't on the surface look that bad actually don't really bode well. And then what's coming up? What can we expect? So where would you like to start?

Jennie 9:17

Well, I'm thinking, you know, one of the things we've really seen be the new targets, it seems to be medication abortion and telehealth. Why have they become the new focus?

Amy 9:31

Yeah, so medication abortion has been a lifeline after Dobbs, and I don't want to suggest that it's a solution for everyone in every situation, because it's definitely not. And there are lots of people who can't use medication abortion, and it's not the care provided for every every stage of a pregnancy, so it leaves people out, but for sure it has allowed access to continue after Dobbs, and it's the reason that abortion rates have not decreased, including in states with abortion bans or severe restrictions. So, you might know about the amazing We Count data, which the most recent findings, which I think were of from December last year, found that about 15,000 abortions a month are provided under shield laws into states where abortion is severely restricted or banned or they don't allow telehealth. We can talk about shield laws, which are a piece of the medication abortion picture. But because it allows people to access from where they live, from providers who can be located anywhere in the country, including in states with protections, medication abortion has been a lifeline, and that is why there are so many attacks on it right now.

Jennie 10:48

Yeah, we just had Dr. Angel Foster on talking about telehealth provision and the benefits of the shield laws, and it really is making a huge difference to ensure that people are still able to access care. And like you said, that is clearly not, it is clearly really important, but not enough. We need to make sure that not everybody wants to do medication abortion or can, and we need to make sure people are able to access in any way they can. But the shield laws go a long way to help expanding access via telehealth.

Amy 11:21

So true.

Jennie 11:22

You know, there's been like some chaos that has, I mean, there it has been chaos honestly since the Dobbs decision, but recently there was chaos with the the Fifth Circuit was gonna stop all telehealth provision or mife provision. And so then, like, introduced chaos and extra chaos into the system. How are patients and providers dealing with like all of this like uncertainty and this rapidly changing changing landscape?

Amy 11:49

I think uncertainty now is a given. Of course, we can't lose sight of that after Dobbs, providers had to leave a lot of states, including clients that we at the center had worked with for decades and were mainstays and also pillars of their communities in states like Texas and North Dakota and Oklahoma, just to name a few, Mississippi, this is not exhaustive at all, and they just had to leave. So since then there's still there's still whiplash. I would say that whiplash is not something uniquely post-Dobbs, and just because reproductive rights have been under attack forever, and in some ways, when the federal courts offered more options to block things and things would get blocked and go into effect, things could change a lot more quickly. Now, four years post-Dobbs. There's been a little bit of settling. We'll have to talk about the huge looming potential threats around medication abortion that could affect everyone in the country. But I think you know, providers are stoic. They know that this is how it works and they just continue to try to provide the the care that they the best care that they can because they care so much for their patients. I would say that for people seeking abortion, it's clear that telehealth is not just a lifeline post-Dobbs, it's like a it's a genuinely great thing because it gives people a lot more options and it's aligned with how people want to access healthcare generally, on their own terms, on their own timeline, often in their home, being able to choose from a lot of providers, not just limited by who is close by or the ability to get to somebody. So, all of these are like genuine innovations, it's a great thing. What we need is to get rid of all of the legal attacks, complexities, restrictions, so it doesn't have to be operating in this gray space with uncertainty. But I think in in general, telehealth has been a great thing for abortion access, and that should be a step forward if we could figure out the legal crisis.

Jennie 14:02

Yeah, it's definitely worth circling back to the attacks on mifepristone, which is just it just has the potential to just cause so much damage, right? Even if they do the narrower version with like just getting rid of telehealth. We just talked about how game-changing that was for people to be able to access care, and it's so much better for them to be able to access via telehealth. It's getting into states where it is banned, but like the system, the clinics that exist, if people have to start coming in person, like the system can't currently support them. So I think there's a lot of- people don't quite understand the full ramifications of like what could happen if any version of these mife bans take place.

Amy 14:49

I think that's right.

Jennie 14:50

And definitely people in blue states thinking that they are safe.

Amy 14:54

No, we can never think that.

Jennie 14:56

Okay, so what with like all you are seeing? We've really been focused on abortion, but I think that the attacks we're seeing have implications for broader than just abortion on reproductive rights. What are you seeing and what are you like thinking about at the at the moment for the broader attacks beyond just abortion?

Amy 15:17

Yeah, I do want to talk about state court a little bit while we have a chance. But I think a lot of the attacks that are going beyond abortion right now are in federal court. And there's one area that is very devastating and should never have happened in this way, and that is Dobbs has metastasized to trans rights. And just to tell the legal story of how this happened, it really comes down to just one line in the Dobbs opinion, which should never have been there. Dobbs was a case about the liberty right to abortion. It was not about sex discrimination, but Justice Alito was so worried that sex discrimination might become a new basis for the right to abortion after they overturn liberty, that he included one line that says essentially regulation of medical procedures that one sex can undergo is not a problematic form of sex discrimination, so these kinds of laws should be upheld. So this is so sweeping, it goes way beyond liberty and the right to abortion, which is what Dobbs was about, and it was about tried to make this about sex discrimination and all medical procedures. So, of course, people who are hostile to trans rights and also states that are aligned with trying to oppose any kind of bodily autonomy seized on this and started making argument arguments that bans on gender-affirming care for minors fall outside sex discrimination protections because they essentially regulated medical procedure, and Daubs said that was just fine. So this got all the way to the Supreme Court in Skrmetti last term, and the court used that logic from Dobbs to hold that the Tennessee ban on gender-affirming care for minors didn't discriminate based on sex or trans status. It said it just regulated a medical treatment that happens to be to quote uniquely bound up in sex, and that's fine. So before Dobbs, the court had never said anything like that sex-based medical procedures are somehow outside of anti-discrimination protections, and that is a very radical rejection of a core premise of equal protection law, which is that discrimination often comes from differences in bodies and physical capabilities that are associated with sex and infused with stereotypes, and that that biological peace is really what leads to invidious forms of discrimination. But because of the overreach in Dobbs and Skrmetti, that's now binding precedent that other federal courts are using to reject discriminatory bans or to uphold discriminatory bans on healthcare for trans people.

Jennie 17:57

Yeah, this is one of those I think about a lot because you're seeing the same playbook being used, right? Like, this is how the tax on abortion rights really started was with putting bans on young people and saying young people needed parental consent. And so you're just seeing them use the exact same plays they used to get to the Dobbs decision, starting to attack gender-affirming care now, right? Like using young people as like the tip of the spear to like start breaking off support, but also like, oh, we're just like young people. We need to make sure that you know they don't have the ability to make those decisions yet. And then now that the the legal right has been established, then it you I fully expect to start start seeing that like grow in attacking more people's ability to access gender-affirming care.

Amy 18:48

It's so true, and the precedent that's getting built sweeps way broader, and then that can be used destructively to attack lots of other people, groups, and even to go beyond trans rights, because the the underlying premise is really super broad. Another similarity with abortion rights and trans rights is that the other side tries to manufacture medical uncertainty and try to say, like, actually science doesn't know anything about this. Let's just kind of use common sense and say this is probably dangerous, probably has long-lasting negative effects. If there's any uncertainty, then let's just err on the side of letting states ban things. And of course, that was a huge theme with anti-abortion advocacy, again, against so much data. I mean, we don't have to try to convince people we know that abortion is incredibly safe, but that that kind of denying the evidence got a lot of traction and is one of the reasons that we ended up here.

Jennie 19:53

Okay, so do you want to talk about what you're seeing in state courts? Let's turn to that. What are you seeing?

Amy 19:57

Oh, actually, I did want to talk about other rights.

Jennie 19:59 Jennie 19:59

Oh yes, sorry.

Amy 19:59

Also, that's another thing that we have to keep an eye on. So the trans rights, you know, it's infuriating because it's about equal protection and Dobbs wasn't supposed to be about that. Dobbs was about history and tradition analysis for liberty rights and laid out that whole test that liberty protections have to be deeply rooted in this nation's history and tradition, which was frozen by the court in 1868 when the Fourteenth Amendment was ratified. So the court said if liberties were not protected then, they can't be fundamental today. And of course, we know at that time it was men who were white who overwhelmingly possessed rights, and other groups were shut out of even the process of defining the scope of rights and participation. So everyone worried after that that this approach would reject everything from the right to marry who you want to to contraception to intimacy. None of those were protected in 1868. But we didn't know at that point what kinds of cases would be cropping up to start putting these things on the line. So now, four years later, we have federal courts citing Dobbs's history and tradition to undermine healthcare for trans kids, contraception, and recently student privacy. So, I don't have to go into a lot of detail about the cases, but for trans healthcare, the 11th Circuit, which is the appellate court over the state of Alabama, held that parents don't have a liberty right to, quote, treat one's children with transitioning medications subject to medically accepted standards. And the reason they don't have that right, they said, is this court said is because this is a 20th century invention.

Jennie 21:43

That is wild.

Amy 21:45

Right? And the standard is also so subjective that it just allows courts to do whatever they want and act on their personal biases. So of course we see parental rights being used, the flip side of it to support parents' rights to do things that go against their children's bodily autonomy. So in Texas, we had a judge holding that this was a challenge to part of the Title X program, which provides, as you know, free or low cost contraception. And Title X has always been run to not not allow providers to notify parents when minors go seeking contraception from Title X providers. So a parent challenged this, saying that it violated. his parental rights to make decisions for his kids. And mind you, his kids had never tried to go to a Title X clinic, did not, like, according to the facts, express any interest in obtaining contraception, let alone without letting him know that this was just another attempt to kind of control everybody based on really retrograde ideas. So this federal district court agreed that parents have a historically deeply rooted right to make important life decisions for their children and it would violate that right for Title X providers to even have a policy out there that they can serve minors without parental consent. So, that's a big problem with history and tradition and is we're going to just be seeing more of that on more kinds of reproductive rights as things go forward.

Jennie 23:19

Yeah, it's again the you hear all the people being like they're not coming after birth control. Like why why are you starting to panic about birth control? And you're like, no but like it it is happening and courts are already starting to make decisions that may limit people's access. This again is the, like, trying to crack open that door so that they can then expand it further.

Amy 23:44

Yeah and the legal test is just so sweeping. I mean that's one of the giant problems with it. It would cover everything if it were applied to mean what it says and these judges like to say they're being consistent although obviously just these two cases that go different ways show show that that's not right.

Jennie 24:08

So much there's just so much happening with the the ways our rights are coming under attack. Do you want to turn to state courts now?

Amy 24:19

Yeah, so state courts could be a path forward and that's because there are 50 state courts and they have 50 different constitutions many of which have really interesting innovative rights that are not in the federal constitution whether it's a right to privacy a right to healthcare decision making, inalienable rights clause which could include a lot of things and even when they just are have like liberty or equal protection provisions there's no reason state courts have to follow the federal courts in the Supreme Court. They can go in their own direction and be a lot more protective if they want to. So, one of the trends since Dobbs is that most of the litigation shifted over to state court which was itself just a giant sea change and state high court started ruling on whether their constitutions protect a right to abortion at a really unprecedented rate. So at the time of Dobbs there were just nine court decisions recognizing a right to abortion from like 40 plus years before that. But just since Dobbs there have been eight state Supreme Court decisions on abortion rights and unfortunately it's kind of been a mixed bag. So we have three state Supreme courts recognizing abortion rights either fully or in some circumstances for the first time and the some circumstances part is actually kind of promising because if they say abortion is protected in these ways and we're going to leave the door open to going farther then that could be a building block for the future. So there are two courts that have done that Oklahoma and North Dakota held that abortion is protected to preserve life or health and they defined that pretty broadly and said we're not going to rule this time whether there's a broader general right to abortion. The third state Wyoming held that abortion is fully protected as a personal health care decision. They have a very modern amendment to their constitution which was from like 2012 and it guarantees a personal fundamental right to make healthcare decisions. It was actually enacted in opposition to the Affordable Care Act because of concerns that people would be forced to buy insurance and force into healthcare that they didn't want but that court just kind of read the amendment and said you know nobody it it means what it said and nobody was out there putting limitations on and abortion is clearly a a personal health care decision with the same dimensions magnitude as anything else that people might have been thinking about with that amendment.

Jennie 26:54

I kind of love that.

Amy 26:55

Isn't it amazing? Yeah. Some of the Western states that have like sort of libertarian influences in their courts that some they can come out that way. So, we have those three states that have recognized some abortion rights and left open a path to more. On the other hand, we have five state supreme courts that rejected abortion rights after Dobbs: Idaho, South Carolina, Indiana, Iowa and Florida. And unfortunately two of those, Iowa and Florida, actually overturned rights to abortion that had been recognized before Dobbs. So in many ways they just decided we're going to do what the U.S. Supreme Court did instead of showing any independence or interpreting our unique constitutions in a different way. So overall, state courts do offer some path forward to this long-term goal of rebuilding reproductive autonomy rights. But it's been slow in these first few years and it depends hugely on who sits on those courts.

Jennie 27:54

So is that where you see like the next phase of the litigation and policy fights being is is in the state courts or do you see other pathways as well?

Amy 28:03

There's another really promising pathway in state court which is kind of a combination of policy and advocacy and mass mobilization and litigation and that's the challenges brought under under the new reproductive freedom amendments. So these really are bright spot. There are 10 states so far where voters have approved amendments to their constitution to protect reproductive freedom including abortion and some of them actually go much farther to include pregnancy related care more broadly and then in addition to the 10 that are ratified there are two more on the ballot this November in Virginia Nevada and Idaho is getting really close to being on the ballot. So there's the mass mobilization public opinion part of this which is just very inspiring. The amendments are passing all over the country and the level of support for abortion rights was not so clear before Dobbs; I think people did feel that way but they just didn't have a reason to be out there with it. But one thing that is less recognized is that the amendments don't automatically strike down the laws. So, there still needs to be a legal challenge if someone has to go to court. The courts still need to interpret and apply the amendments and if the court is really hostile they can try to get around what the voters have spoken for. So, so far in Ohio and Arizona the abortion bans there are permanently blocked and Missouri's is blocked while litigation continues. So, these are like transforming decisions because overnight access is restored in a state apart from the bans though there are a lot of other restrictions in many of these states that also can be challenged and these are restrictions that had been often upheld before in federal court and even by the Supreme Court. So, things like waiting periods, bias counseling, physician only, restrictions on telemedicine so the reproductive freedom amendments provide like an incredibly promising tool to go in and establish stronger protections. So, I think that is a way forward and it is going to be ongoing. You know this the states are are devious. They're still coming up with arguments to try to say the restriction still has to stand. You know it's either they say it's not a restriction or a restriction has to get to a certain level before it even triggers the protections under this reproductive freedom amendment. And again the state courts hold a huge amount of power and I think like it's more and more clear post Dobbs on abortion and lots of other issues that the formal law does not really mean much. There are endless interpretations and it's going to be what the judges want to do that's really going to drive outcomes.

Jennie 30:46

Well I feel like that tees up perfectly the next thing I wanted to ask about which is: how have anti-abortion tactics become more anti-democratic recently? And you just, like, teed it up perfectly.

Amy 30:59

Yeah so I think we know now that people don't like abortion bans and when they start to think about it they realize that like you can't just stop with abortion bans. You can't just stop with situations where people are like suffering horrific medical emergencies when they really stop to think about it. It's too personal; it's too individual; it's too complicated; it's too tied to like these giant themes that people really are committed to like bodily autonomy and personal decision making. And so, they really land like this is a decision that people need to be able to make for themselves and they don't want their states their legislators, their courts limiting or taking away this right. So, that means that the anti-abortion side has had to pivot to tactics that are increasingly anti-democratic and sometimes just like blatantly shockingly so. So, around the reproductive freedom amendments, this is like a hotbed of states trying to get around what the voters are standing up for. In Missouri, you know that just passed amendment resoundingly and the ban is blocked and the voters are there are really happy about that. The legislature trying to put another question on the ballot this November that would undo the right to abortion but they know this won't work so they had to basically conceal what it would do and like draft the language to kind of like make it seem like it it actually supports abortion rights. The opponents of this amendment had to go to court and so far the state courts have said no you have to like actually make clear that this is undoing the right to abortion. But we'll see. It's shenanigans and it's gross and it's anti-democratic.

Jennie 32:47

Well and also devious that they gave it the same amendment, like, amendment three was the one that you voted for to protect abortion rights previously and they named it amendment three again this time and a vote for it would restrict abortion rights. And so, they're reveling in that confusion.

Amy 33:07

Yeah, right, they put it in a costume. It's wild. And I don't I was just remembering that in Arkansas which is a a state that still has a horrible access crisis because abortion is banned in 2024 the voters there actually did organize for a ballot measure that have would have legalized abortion through 20 weeks. It was imperfect it had a gestational limit there were different views about whether that was the right way to go but the state contested the signatures like on a technicality and the Arkansas Supreme Court upheld rejecting the ballot measure so the voters never got to vote. So, I mean that was a dead end which was incredibly anti-democratic because that it actually you know did have a lot of momentum and they had enough signatures and it was like not a question of affidavits or whatever. So, these things can work and they are very disturbing. Another thing that's happening is also really anti-democratic and just, like, hard to bring to people's attention because it can get so technical and this is legislators attacking the courts or court procedures in ways that are like under the radar because no one is showing up at hearings to like try to change some court rule on like preliminary injunctions or sovereign immunity in the way that they would show up if it was a hearing about whether to ban abortion completely with no health exception. And so, we're dealing with this right now in Tennessee where we have a challenge to the inadequate exception in the abortion ban that does not allow care in situations where people are having medical emergencies and health harms and we had some success in the lower court and we're moving toward trial and trial is so important in these cases because it allows individuals who are like incredibly brave to be plaintiffs and have to- they're just heroes. They have to keep reliving what happened to them in the service of trying to make things better from happening to others. So, we were just getting to the point of trial and just like in the weeks before the legislature made a couple of changes to the law which basically says the state can't be sued for this kind of constitution constitutional violation, they're immune from it. And if a court makes a ruling that on this issue that says the state is not immune, then they can automatically appeal and you're not supposed to be able to make these kinds of changes in the middle of litigation like right before a trial and it's so transparently a way to keep away from voters like these super compelling stories that are going to make them want to change the law. Because of that our this litigation is derailed and there are going to be endless procedural appeals and who knows how it's going to end. So, this is another version of being anti-democratic which is just like very hard to tackle head on because voters have to deal with so much they have to you know sort through a a million things on a million issues. They have to live their lives and like court procedure is not something that is going to really but I it's like a big thing that we should be aware of because it just shows that um using the courts or like modifying the courts in order to get around the popular will has to be where the anti-abortion side goes now. The level of support is crystal clear.

Jennie 36:45

So, we talked about what we have seen like overall in the legal landscape since Dobbs but maybe we should talk a little bit about the Supreme Court because it abortion has shown up there.

Amy 36:56

Yeah they actually have heard three cases since Dobbs, Alliance for Hippocratic Medicine, the FDA, which was in 2024, and as you probably know this was a challenge to the FDA's approval and regulation of mifepristone, which is the safe and effective medication used in more than two-thirds of abortions in the country, they also heard Moyle v. US in 2024 as well, which involved EMTALA, which is the federal law that requires hospitals to provide stabilizing care in emergency rooms and whether it applies if a state like Idaho this came out of Idaho bans abortion without a health exception and then they had Planned Parenthood v. Medina in 2025 and that was about whether the Federal Medicaid Act allows states to defund providers from providing non-abortion health services like cancer and STI screenings just because they also provide abortion. So, this is a good example of how the fight is going beyond abortion to encompass all reproductive rights and really everything related to people's bodies. Two of these cases the opinions were kind of like a sigh of relief in some ways they were received that way because in alliance the court said that the challengers who are religious doctors and organizations who are anti-abortion didn't have standing to challenge the FDA's regulation so that case so mifepristone remained available in the same way that it always has been in that case had to go back down to the lower courts that was you know a sigh of relief compared to Mifepristone getting restricted or the ability to get it through telehealth going away. The EMTALA case was also somewhat of relief because the court decided after argument that they did not want to issue an opinion because they felt that facts had become too complicated and were shifting. So that meant that EMTALA continued they did not hold that Idaho can enforce its abortion ban which has no health exception against EMTALA and EMTALA in theory still requires hospitals to provide stabilizing care for including abortion in states like Idaho. But actually when you step back and look at the bigger picture these were not very encouraging decisions.

Jennie 39:13

No.

Amy 39:15

Because they were challenges to remaining federal protection statutes for reproductive health including abortion and the court decided them in a way that basically puts those protections in jeopardy but based on like procedure and technicalities instead of being out there and issuing a transparent opinion that says, actually we don't think that the FDA can safely regulate Mifepristone and make it accessible based on data. And they didn't want to say actually we don't think that people can get stabilizing care in a hospital and have to get really sick or die because the state wants to ban abortion because again getting back to the politics they knew that those decisions would not be popular. So, they found kind of procedural ways to reach those if not reach those outcomes then to enable continuing attacks when they could have just put them to bed based on the legal arguments which are decisively in favor of rights and access. And then the Medicaid case they held that a patient doesn't have a right to sue an individual patient who has the bravery and fortune to even go to court under the Medicaid Act because the Medicaid Act just doesn't allow that if there is anything around states cutting off access inappropriately even because they don't like abortion. The state has to try an administrative process or like the state can bring these suits which is ludicrous because we're talking about South Carolina which cut off the access in the first place.

Jennie 40:50

Policies they're implementing.

Amy 40:51

The through line here is that the court has been continuing to undermine federal protections for reproductive rights and access but they want to be quiet about it.

Jennie 41:02

Yeah and you want to be like just a touch cynical because I don't think you need to be super cynical to, like, have that view as those decisions that they didn't decide were in 2024 also known as a presidential election year so did not want to be seen further restricting abortion rights like six months before an election, not even.

Amy 41:24

There is that.

Jennie 41:25

Okay so we've talked about all the ways we've seen changes and stops and different pathways we're that there is could be progress going forward. I always love to wrap up focusing on the audience and what can the audience do. So in this moment where are some places the audience can get involved?

Amy 41:46

So, the who sits on the courts really matters and in states it's a totally different ball game because judges get on the courts in lots of different ways. They can be elected directly, they can be appointed through-

Jennie 42:02

As somebody who's from Wisconsin I very much know that and it makes a huge difference.

Amy 42:28

And you know, that's the nature of elections but to have that going on with judicial elections is kind of a big new thing. People in states where they can vote directly on a judge you know need to get very informed to go all the way down ballot and know what it's all about. In other states it's not a direct election but there are often like committees that have some input in the selection process. They can take input from the public for people who are lawyers often the bar associations can be really involved. So, there are ways to weigh in on who sits on the courts and that is going to be decisive for abortion rights in many of the states. So, that's super key.

Jennie 43:08

And it's not just like your state upper chamber judge like you're talking all the way down to like the lower court and local judges because if your state has a parental consent law or parental notification law those are the judges who are hearing judicial bypass and can just determine, like, if a young person has a can access abortion, but also how painful and gross the process can be to get approved to get an abortion.

Amy 43:42

Completely, and we have seen like wackos ending up on those courts and doing really devastating things. It also means that people could even like consider running for some of those positions, you know they're it's they they're not in the spotlight in the way some of the high profile races are.

Jennie 43:58

Yeah.

Amy 43:58

So, it's something to consider. So federal level: I think rebuilding the right to reproductive autonomy is going to be a long process because of lifetime appointments but vacancies do happen and it is national politics that determines who fills them. So, a lot of it does come down to talk to your representatives, talk to everyone else you know so they can figure out like what they really care about and how it aligns with all the decisions they get to make as voters and then vote.

Jennie 44:28

It is so important I'm so glad we get to talk about judges because I think it is not something we talk about as much on this podcast and it is so important and we should talk about that more.

Amy 44:40

I agree I mean it it's it's true that post-Dobbs has been in some ways helpful for recognizing the limitations of litigation and we don't want a movement that is totally invested in just establishing rights through the courts ignoring everything else because that in many ways is how we got to Dobbs. Judges are very powerful they're going to be deciding cases whether we like it or not and it's been kind of an untapped area under people's radar when they have opportunities to influence it and then like a certain level of just feeling defeated in federal court but things do change and sometimes they change quickly so we can look at that as a as a bright spot if we're searching.

Jennie 45:25

Well Amy, thank you so much for being here today. It was so lovely to get to talk to you. You too. Okay y'all, I hope you enjoyed my conversation with Amy. I had so much fun talking to her about all the things that have been happening in the four years post-Dobbs on the litigation front and looking ahead to what she is keeping an eye on right now. And with that, I will see everyone next week. If you have any questions comments or topics you would like us to cover always feel free to shoot me an email you can reach me at jennie@reprosfightback.com or you can find us on social media at rePROs Fight Back on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and want to make sure more people find it take the time to rate and review us on your favorite podcast platform or if you want to make sure to support the podcast you can also donate on our website at reprosfightback.com. Thanks all.