Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us every day. 

I’m Rich Ford, and I’m here with Pam Karlan. We’re back after taking some time away, so don’t forget to subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all of our episodes as soon as they’re available.

Now today, I’m here with Pam Karlan to talk about the landscape surrounding abortion. A lot has changed in the last few years and there have been some very high-profile controversies involving both state restrictions on the capacity of women to obtain abortions and federal law around some drugs that people, some people describe as abortifacients. Um, but we need to begin going back to when the Supreme Court changed the legal landscape with respect to abortion. So, Pam, uh, could you tell us a bit about what happened in the Dobbs case? 

Pam Karlan: Sure. So, since 1973, When the Supreme Court decided Roe against Wade, um, there had been a constitutional prohibition on, uh, undue restrictions on women’s ability to get pre viability, uh, abortions.

In Roe, the court said that the due process clause of the Constitution of the 14th Amendment, which protects liberty, protected a woman’s right to decide whether to carry a pregnancy to term. Um, the Supreme Court had reaffirmed that in 1992 in the Planned Parenthood against Casey decision. But in 2022, uh, in the Dobbs against Jackson Women’s Health Organization decision, the Supreme Court held that the Constitution provides no protection for a woman’s right to decide whether or not to terminate a pregnancy, as long as the state had some rational reason for adopting the restriction that it adopted. 

And the court said that one of the rational bases on which a court could restrict uh, a woman’s right to choose, uh, to have an abortion was, uh, respect for fetal life at all stages of fetal development. So, what the Supreme Court essentially did was to wipe out the Roe and Planned Parenthood against Casey rule, which was that, uh, at least prior to viability, the state needed a good reason to restrict abortion rights and couldn’t impose an undue burden on a woman’s decision whether to carry a pregnancy to term. 

The upshot of that was a great deal of confusion. So, some states had laws that had been on the books from the 1800s, but that had not been enforceable after 1973 because of the Roe decision. And there was a question whether those laws spring back into place, some of these laws are from the 1840s, and that issue is being litigated through some state courts. 

Then, a number of states passed new restrictions on abortion. Uh, restrictions that would clearly have been unconstitutional under, uh, Roe and Planned Parenthood. For example, uh, bans on all abortions after the so-called fetal heartbeat is detected. Which is actually not a fetal heartbeat, but electrical signals from what will become at some point later a fetus’s heart. And that’s at around six weeks of pregnancy, which is often before women realize they’re pregnant at all, which makes it essentially impossible for them to have an abortion.

Some states passed absolute bans on all abortions except abortions to save the life of the mother. Some states have passed laws, uh, that have restricted all abortions except for saving the life of the mother or rape or incest exceptions. And conversely, other states have beefed up their protections of abortion, and we’ve seen some really interesting stuff happening in the political process where women in a number of states um, uh, abortion rights have gone to the polls in large numbers to, uh, push back on, uh, abortion restrictions. It’s going to obviously be a huge issue in the 2024 election, and then as you say, we come to some, uh, some new controversies.

Ford: Wow, so the legal landscape has been completely turned upside down. You’ve got a combination of old laws from the 1800s that might be back in force, although clearly the current political scene in those states has changed. You’ve got some states that are pushing back and trying to protect the right of women to obtain an abortion, but then you have some states that are passing new and even more restrictive laws with respect to abortion. And one of those states is Texas, which has now been in the news recently for a high profile controversy involving a woman seeking to obtain an abortion who has been denied the ability to do that, despite what might look like a pretty strong case for an exception even to Texas’s strict anti-abortion laws. Could you tell us a little bit about that case? 

Karlan: Sure. So, the case you’re talking about is the Kate Cox case. So, Texas has Um, several different abortion laws on the books right now because they, you know, they kind of pass them one on top of the next. So, they have a law that forbids abortion after fetal heartbeat, but they also have another law that seems to forbid all abortions except in cases where the life of the woman is threatened. But the way that law is written, it’s written in a very confusing way. So, it starts by saying that the abortion is forbidden except, uh, in a case where the woman has a life-threatening condition. But then, right after that it says, a life-threatening condition that threatens her life or that threatens a major bodily system, a major bodily function.

So, the woman at stake here is a 31-year-old mother of two who became pregnant with a very wanted pregnancy. But, it was subsequently discovered um, by stuff that can’t be determined, you know, in week two or week four of a pregnancy that, the fetus has something called trisomy 18, which means, you know, usually you have two of any chromosome, you know, you’ve got pairs of chromosomes. Trisomy 18 means you have three of the 18th chromosomes, and it leads to horrific damage. Most fetuses that have trisomy 18, there’s a miscarriage. Of the ones that are born alive, 95 percent of them die within the first year, and the others are severely, uh, disabled. 

The other thing is when a woman is pregnant and the fetus has trisomy 18, she can suffer a variety of health conditions from that. And the woman at issue in this case had been to the emergency room four times, uh, the doctors told her that the fetus was unlikely to survive long if it was born alive, uh, and that continuing this pregnancy posed some substantial dangers to her future fertility. And she wants to have more children. So, she and her doctor agreed that she should terminate the pregnancy.

Um, uh, but in Texas, doctors face, uh, both criminal liability under the general prohibition, uh, and they face the possibility of being sued by any one of a huge variety of other actors if they continue. So, she went to court to get essentially a declaratory judgment, that is, something from a court saying it’s okay to have this abortion that would protect her and protect the doctor, um, from any kind of liability for terminating the pregnancy.

And a trial court judge, a Texas state trial court judge, agreed with her and issued an order saying she could have the abortion without legal consequences. But then the Attorney General of Texas, Ken Paxton, uh, entered the case, appealed to the Texas Supreme Court, uh, to say the doctor and, uh, the woman were wrong, that she falls within the exception of the statute. And a couple of days ago, the Texas Supreme Court unanimously, it’s a nine member uh, Supreme Court, all of them, uh, Republicans, uh, and in Texas, you run as a member of a political party for judicial office, held that she did not fall within the exception of the Texas statute, and therefore, it would be illegal for her to have an abortion in Texas. While this was all going on, she left the state of Texas to go someplace where she could legally terminate the pregnancy.

Ford: Wow. So, this is the nightmare scenario that pro-choice advocates had talked about in the wake of Roe versus Wade being overturned. And it’s also the scenario in which a lot of pro-life advocates said that, um, you know, people are overreacting, that, you know, this will never happen, that all of these anti-abortion laws have reasonable exceptions. And yet, here we are. And it’s striking how many elements, uh, you could, nightmare elements are involved in this. 

Like in the first, first of all, the doctor’s liable, she’s potentially liable. They can be sued by any number of different actors, so they don’t know where the liability might be coming from, it’s very frightening situation. And then, you have political actors intervening at the last minute for what, you know, appear to be political reasons rather than legal reasons, and certainly rather than medical reasons. 

Karlan: Yeah, it’s unclear how much liability she first personally might face, but it’s pretty clear that the doctor will face potential liability. And even if he doesn’t face liability or she doesn’t face liability, the prospect of having to defend yourself, um, is, you know, is a real problem. There’s a, another lawsuit going on in Texas that’s also now the Texas Supreme Court that’s bringing a general challenge to the way Texas’s exceptions play out.

But the point that you made, Rich, is a really important one to kind of, uh, emphasize is that, the assumption that returning abortion to the states would dampen the controversy, was mistaken. Because what has now happened is, you know, people who said, don’t worry about this, Justice Kavanaugh, for example, in his concurrence in the Dobbs case, said, don’t worry about this, people will still be able to travel to other states and get abortions. That’s actually turned out to be very problematic.

So, for example, just to name another set of cases that are in Texas. There are a bunch of, um, anti-abortion jurisdictions, small jurisdictions in Texas that want to pass laws forbidding people to drive through their town, to use the roads in their town, to travel out of state to get an abortion. Now, I think those laws are pretty clearly unconstitutional, but litigating that issue means there’s going to be a lot of litigation.

And there was a really interesting study uh, done by some of the folks at University of California, San Francisco Medical School um, and published in the Journal of the American Medical Association that talks about how the rate of abortions has gone way down in some states. And then they do geospatial coding to show just how far a lot of women are going to have to travel now to get to a place where they can get a safe and legal abortion. And we’re going to turn to this in a minute, but that’s going to be especially true if they can’t have medical abortions as opposed to surgical abortions in the state where they’re now located.

Ford: Wow, right. So, we have some states that are actually trying to prevent people from even traveling to another state to get the abortions or local jurisdictions… 

Karlan: Local jurisdictions are trying to do it, but it’s unclear whether, you know, Ken Paxton or some other attorney general is going to start prosecuting people for aiding and abetting a woman to leave the state to have an abortion.

Ford: Right. 

Karlan: And the question of should a state pass a law, because obviously a state could pass a law that makes it a crime for you to take, uh, your three year old child out of the state for the purpose of killing your three year old child in another state.

And so, if the state is going to treat you know, an embryo or a fetus as a person, then it’s unclear why the state wouldn’t be allowed to enact a law like that, that says you can’t take your, you know, you can’t take your three year old out of the state for the purpose of killing them, you can’t take your three week post conception embryo or fetus out of the state.

Ford: Wow. So, a lot of controversy and confusion. 

Karlan: Yeah, and then of course, you know, Lindsey Graham, Senator from South Carolina, wants to pass a federal 15-week abortion ban and use the Commerce Clause, uh, to get there. The Commerce Clause allows Congress to regulate interstate commerce, and abortion is an interstate commerce activity because the medical tools that are used in abortions travel interstate to get to clinics. Pills are manufactured and move interstate for medical abortions and, you know, huge numbers of women travel interstate to get abortions. And that was true even before the Dobbs decision. 

Ford: And so, a federal ban is not inconceivable if the political situation were such. 

Karlan: I think that’s correct. 

Ford: Wow. Um, and it is worth noting that this woman in particular is also, um, at risk of infertility. So, one of the consequences of this pro-life decision is that she may, you know, if she stayed in Texas and didn’t have the abortion, may never be able to have a family as a consequence. 

I, you know, another set of issues that this begins to raise about the federal law has to do with medical abortions, nonsurgical abortions. And um, there’s also a big controversy surrounding that and the approval of some of the drugs necessary to allow for these medical abortions.

Karlan: Yeah, so once again, we’re turning to Texas. So, a substantial percentage of early abortions in the country and most abortions in the country are first trimester abortions. That is, they’re before 12 weeks. A substantial and growing percentage of those are what are called medical abortions rather than surgical abortions.

So, surgical abortion involves physically removing the fetus or the embryo from the woman’s body. The most common way of doing that is a suction abortion, which is performed generally, can be performed in a doctor’s office or an outpatient clinic or the like. 

But increasingly, women have turned to, uh, what are called medical abortions. That is a combination of two pills, mifepristone is the one that’s at issue in these cases, and then there’s another one on top of that, uh, that, uh, cause the woman, uh, to miscarry. And those pills have been approved by the federal government for use by the FDA for decades. Um, and initially, uh, women were required to go to the doctor’s office to receive the pills, uh, and to return for, to the doctor’s office afterwards. But in 2006, I believe, um, the FDA approved, uh, providing the pills to women remotely. So, a woman could just go to a pharmacy and pick up the pills, and of course, as pharmacies by mail, uh, came into being, uh, she still needs a prescription, this is not over the counter, uh, medicine. But she can get the, uh, pills without physically going to a doctor’s office to get them.

And a group was created, it’s an anti-abortion doctor’s group that was created, uh, in Texas for the purpose of bringing a lawsuit against the FDA and against the maker of the generic version of, um, uh, Mifepristone and one of the other corporations that makes it. And the argument was that somehow when the FDA uh, approved Mifepristone in the, uh, 1980s, I believe, that decision didn’t follow the Administrative Procedure Act properly.

And they filed the lawsuit in a way that enabled them to get the lawsuit in front of a single judge. It was a real kind of judge shopping lawsuit to get it in front of a single district judge in Texas who, before he went on the bench, uh, had been a conservative legal activist, um. And he, um, issued a nationwide injunction telling the government that it couldn’t, that it should withdraw the approval for Mifepristone.

And he, among other things, used an 1870s act called the Comstock Act to suggest that mailing any, uh, drug that causes abortion across state lines would violate federal law. That case went up to the Fifth Circuit, which is a federal appeals court, and it’s the federal appeals court that sits over Texas and Louisiana and Mississippi, and it’s a very conservative court.

And it changed the injunction that Judge Kaczmaryk, the district court judge, did in some ways, but left it in place in others. It allowed the drugs to remain on the market, but it enjoined the approval the FDA had given for Uh, remote prescription of the drugs, which means essentially that, uh, a woman who wants to use Mifepristone would have to go to a doctor’s office to receive it.

Well, obviously you can see what the effect of that is, which is if you’re in a state where it’s illegal for doctors to be involved in providing abortions or assisting their patients to get, to have abortions, this makes it impossible to get those drugs. Um, the Supreme Court, uh, a couple of, uh, months ago stayed that injunction, um, and, uh, agreed recently to hear the case, uh, the federal government’s case on the drug company’s case, challenging the injunctions.

But again, you can kind of see what the effect of that is on the law surrounding abortion, that the idea that, you can have a kind of patchwork of, in some states, it’s legal to use these drugs, in other states, it’s not legal to use these drugs, is something that’s going to lead to litigation for, really for the foreseeable future.

Ford: Wow, so we not only have, there’s so many things to discuss with respect to this. For instance, these drugs have been approved since the 1980s. So, they’re reaching back to the 1980s and saying you didn’t follow the procedures that were required back then. It’s been decades and no one’s complained about it, but now we’re going to raise the issue.

They’re reaching back to the Comstock Act from the 1870s, which had been the subject of ridicule for many, many years as a highly puritanical rule that was you know, out of step with the times. Um, but they’re going to reach back to that in order to prevent the distribution of these drugs. And you’re creating a kind of litigation mess where everyone’s rights are uncertain. We’re really in a strange landscape. 

And Pam, what are some of the things you, now this has been thrown back to the state and it’s been thrown back to the political process. What are some of the things that are happening in state politics around abortion? Particular states, even red states that have moved to protect a woman’s right to have an abortion.

Karlan: Sure. So, I’ll give you two examples that I think sort of illustrate this point. So, in the 2022 election, California had a proposition on the ballot, Proposition 1. That amended the California Constitution to put affirmatively, a right of a woman to decide whether to terminate a pregnancy into the California Constitution, and it passed overwhelmingly.

I think it, like, something like 67 percent of California voters who went to the polls, uh, voted in favor of the, uh, of this provision, which says that the state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion, and their fundamental right to either choose to use or not to use contraceptives. Um, and California obviously is a blue state. 

Um, but in this election cycle, in the November election in 2023, Ohio, which is generally a red state in presidential elections, uh, voters went to the polls there, uh, and I think it was, uh, 57 percent of the voters in Ohio agreed to a referendum that created a constitutional right to an abortion in Ohio. And just to give you a sense of just how tumultuous this landscape is, as soon as they did this, a group of anti-abortion state legislators said, well, we want to create legislation that will prevent the judiciary in our state from interpreting or enforcing this amendment. 

So, you know, I think what’s been going on gives a little bit of the lie to the argument that some of the critics of Roe made earlier, which is we just want to return this issue to the states. It turns out that a lot of the anti-abortion groups, they don’t want each state to decide for itself what the rules are. What they really want is to ban it nationwide, uh, in every state, regardless of what the voters in that state want. 

Ford: Wow. And so, and some of these states, um, decisions are potentially having a big effect on national politics generally. You know, the Democrats seem to believe that abortion is an issue that will help them, not only in state elections, but also in nationwide elections. 

Karlan: Yeah, I think that’s right. You know, I think when Roe was on, when Planned Parenthood were on the books, the focus of the pro-life anti-abortion movement was generally on later term abortions, second trimester abortions and the like, where a fetus starts, obviously you see, more and more like a live human being. You know, if you look at the billboards that were put up by pro-life… 

Ford: Right. 

Karlan: groups, they always show you a fetus that looks like a human being. They don’t show you something, you know the size of a thumbnail that’s made up of cells where, if you just looked at it you wouldn’t be able to tell, is it a human fetus? Is it an opossum fetus? Is it a rabbit fetus? And now what’s happening is people are focusing, I think, on the fact that there’s widespread public support for, certainly, the idea that women have, should have access to early abortions. 

Ford: Hm-mm. 

Karlan: And that’s playing out a role in politics because, and you can see this, not just on the democratic side, but a little bit with, you know, Donald Trump, who has criticized some of the more draconian state laws as being bad laws. I think because he recognizes that it politically, uh, a nationwide ban on all abortions, including first trimester abortions, and including abortions like the one that was at issue in Texas for women who are pregnant with fetuses that have severe abnormalities, is just not a winning, it’s not a winning political issue. 

Ford: Yes. And another area that this might play out is in federal law. So on the one hand, you talked earlier about the way it’s possible that we could have a nationwide abortion ban, but given the political landscape with respect to abortion, is it also possible that we could have a nationwide legislation that would protect the right of a woman to have an abortion?

Karlan: So, the answer to that is yes, in that, you know, the federal government has the authority to regulate commerce between the states and to tell a state that it can’t interfere with that commerce. And so, for example, if the federal government were to pass a statute saying no state can interfere with the interstate transportation and use of mifipristone, uh, that law would arguably be upheld under the commerce clause. I think as a realistic matter, we’re not gonna see unless one party gets a veto, you know, gets , uh, a filibuster, uh, proof majority in the house, has a majority, I mean, in the Senate, has a majority in the house and holds the presidency, I don’t think you’re gonna see federal legislation. 

Because, you know, if it were legislation to ban abortion nationwide, the Democrats in the Senate would filibuster it. If it were, uh, law to ban, uh, to protect a nationwide right to abortion, I think it highly likely the Republicans in the Senate would filibuster it, or at least enough of them would, so that I don’t think we’re going to get a national political solution on this issue.

And contrary to what the Supreme Court thought, which is by getting rid of abortion as a federal constitutional issue, it would no longer be a central issue in, uh, our political process, it’s had exactly the opposite effect. 

Ford: Right. It’s certainly overturned the landscape in a variety of ways. And there are also some private organizations that are kind of entering the fray in order to either to try to prohibit abortions in states that allow them or to help women in states that prohibit abortions to get an abortion somewhere else.

Karlan: Yeah, I, you know, I mean, there’s a lot of citizen activism on this issue, which is why it’s not going to die down as a political issue. Um, you know, there are a variety of organizations that have sprung up, uh, or that were preexisting and have kind of ramped up their efforts to assist women in states where there are no longer, uh, abortion clinics, or doctors who are willing to perform abortions. Or prescribe medical abortions to go out of state, or to provide them with information about how to deal with doctors who are out of state, uh, and the like. And then obviously, there are attempts in localities to try and make it even more difficult for women who want to seek abortions to get those abortions. 

Ford: So, I mean, would it be fair to say that now that the Constitution doesn’t speak to this issue, it feels as if everything is on the table. It may be unlikely that we get federal legislation, but it’s constitutionally permissible. And so, people are going to continue to push for it, like Lindsey Graham talking about a federal ban or people, you know, reinvigorating the Comstock Act. Um, and on the other hand, it’s also possible that you could have, um, a variety of types of activism in favor of abortion. So, as you said, quite the opposite of taking it out of political controversy and calming down the issue. It’s made it much more volatile. 

Karlan: Yeah, and there’s one example that we haven’t talked about yet that, that kind of highlights just how far this can go in various ways, which is, for months, Senator Tommy Tuberville from, um, Alabama was preventing any promotions in the military. That is, promotions to general and colonel, you know, and the like, on the grounds that he objected to the fact that the Department of Defense was willing to pay the transportation costs for soldiers and family members of service members who lived in states where they couldn’t get abortions to go to states to get abortions. And he was blocking, you know, he was blocking hundreds of promotions of high-level military officials on these grounds. They finally sort of overcame that block, but it gives you a sense of just how many levers there are for inserting this issue into all sorts of things that, at least on their face, you know, whether somebody should be promoted from colonel to brigadier general doesn’t seem to have anything to do with abortion and yet it was connected to that. 

Ford: Wow. And so, that suggests that this issue has the potential to threaten the regular workings of government and politics in a whole variety of areas that are quite removed from abortion, at least on their face. 

Karlan: Yes, yes. 

Ford: Poisoning our politics in a lot of respects. 

Karlan: Right. 

Ford: Well, on that cheery note, thank you so much, Pam, for talking to us about the changed, um, and volatile landscape around reproductive liberty and abortion. 

This is Stanford Legal. If you’re enjoying our show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us improve the show and get the word out that we’re back. I’m Rich Ford, along with Pam Karlan. We’ll see you next time.