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This week we cover the fascist attack on medication abortion mifepristone that has now made its way all the way up to the Supreme Court. Sam talks to Mark Joseph Stern, Senior Writer at Slate.com, who recently wrote The Lawless Ruling Against the Abortion Pill Has Already Prompted a Constitutional Crisis. Next, Sam shares an interview with Dr. Elizabeth Newhall, an Obstetrician and Gynecologist who participated in the effort to gain FDA approval of mifepristone.
Follow Mark on Twitter @mjs_DC
Mentioned in this episode:
It Is Time to Get Real. It Is Time to Fight for Abortion Rights! by Coco Das
American women, let this be your wake-up call: it won’t end with mifepristone by Moira Donegan
Listen to this recent episode if you haven’t already:
The Post-Dobbs Human Rights Emergency
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Music for this episode: Penny the Snitch by Ikebe Shakedown
The Fascist Attack On Medication Abortion
Sun, Apr 16, 2023 1:46PM • 1:04:25
Elizabeth Newhall M.D. 00:00
I was at the FDA hearing when Mifeprex was approved. I was put on one of the “deadly dozen” hit-list. While we’re starting the study they’re putting in bulletproof glass in our clinic. Reproductive freedom is to those with wombs what free speech is to those with mouths.
Mark Joseph Stern 00:17
The very first footnote in this opinion says “I refuse to call fetuses fetuses, I’m going to call them the unborn.” This was a step beyond. This was a step into total lawlessness and judicial arrogation of power of the kind that we’ve never seen in the history of the country, frankly. This guy wants to stop as many abortions as he possibly can because those are his religious beliefs. That is a scary place for this country to be in.
Sam Goldman 01:04
Welcome to Episode 152 of the Refuse Fascism podcast, a podcast brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers and host of the show. Refuse Fascism exposes, analyzes, and stands against the very real danger and threat of fascism coming to power in the United States. In today’s episode, we’re covering the fascist attack on medication abortion.
Last week’s ruling by Matthew Kacsmaryk, a federal judge in Texas, the Fifth Circuit’s ruling, primarily upholding that decision, and the volleying of the case to the fascist-dominated Supreme Court amount to the biggest escalation in the all-out violent Christian fascist assault on abortion rights since the Supreme Court overturned Roe v Wade this summer, brutally ripping away the constitutional right to abortion. In this attack, threatening nationwide access to mifepristone, we see lucidly the contours of the reshaping of the judiciary into a brutal instrument of fascist atrocity to eliminate the most essential rights of the people. To get into this, we’re going to first share an interview with Mark Joseph Stern, Senior Writer at Slate.com, and then we’ll share an interview with Dr. Elizabeth Newhall, an OB-GYN based in Portland, Oregon, who worked on getting mifepristone’s FDA approval.
But before we get to it, thank you to everyone who is supporting this show for $2 or more a month. Thanks, patrons. Not one yet? Become one over at Patreon.com/RefuseFascism. Thanks as well, to everyone who shares the show, gives us those five stars, subscribes, follows and yes, yes, yes, leaves reviews — so important. After listening, go do all the things to help us reach more folks that want to refuse fascism.
Okay, let’s briefly review the chaos that we were all thrown into this week which especially hit abortion providers and those seeking medication abortions. First, last week, Matthew Kacsmaryk, who we’ve talked about before, that Trump-appointed Christian fascist federal judge, ordered the FDA to withdraw its approval of mifepristone, which was approved by the FDA in 2000, and since that time, has been used by nearly 5 million people in the country. The ruling drips in theocracy. Next, this got appealed to the Fifth Circuit.
The Fifth Circuit’s order attempts to reinstate burdensome restrictions from before 2016, but does not revoke FDA approval of the drug entirely. If the Fifth Circuit decision stands, it would limit abortion access in every state. The ruling relies on anecdotes from anti-abortion woohoos instead of the FTA’s judgment and hundreds of scientific studies on mifepristone’s safety and efficacy. As Matthew Segal, Senior Staff Attorney with the ACLU, put it: “So to recap, the federal judiciary imposed nationwide restrictions on abortion access less than one year after the federal judiciary said it was returning the issues to the states.”
Then our story heads to the Supreme Court — great. On Friday, “Justice” Samuel Alito temporarily paused the Fifth Circuit ruling that imposed limits on access to mifepristone so that the court had time to review. The order from Alito does not signal — does not signal — which way the court is leaning, but it does temporarily delay the restrictions that could significantly limit access to the abortion pill. People seeking mifepristone were given a few days of reprieve until Tuesday at midnight. Again, let’s make this really clear: Alito’s order was not a ruling. It’s purely administrative. It doesn’t tell us what the court thinks on the merits of the case. It doesn’t resolve the case. It’s not a ruling. It doesn’t give us any clues into which way the “justices” are leaning.
The Supreme Court could act on the Department of Justice’s stay application anytime after noon, Tuesday, and before, hopefully, 11:59pm on Wednesday. But let’s get real, it doesn’t have to act on any timeline, but its own. Let’s talk a little bit more about the stakes and what’s needed. The Christian fascist movement is going for a nationwide ban on abortion — to end abortion in all circumstances, in all states. Every move they make is to get closer to that goal, that horror. Now is the time to fight like bloody hell to not let that go down.
The always incisive Moira Dunnigan — Moira, please come on the show — for The Guardian, draws this out in her op-ed: American Women Let This Be a Wake Up Call, It Won’t End with Mifepristone. She writes: “It doesn’t matter if you’re safe or that abortion will always be legal where you live because the anti-abortion movement wants to impose a national ban on abortion and to take away your right to one, and they already have enough of their partisans in high enough positions in elected office, yes, but mostly on the federal courts to do so, right now.” She goes on to say: “The current system, that tenuous balance in which abortion is nominally legal in some states, banned and sadistically punished in others, was never going to hold. The anti-abortion movement was never going to allow women in legal states to remain free.” The link to her whole article is in the show notes.
Rise Up for Abortion Rights called people into the streets to protest Saturday, April 15. Their call to act read in part: “No one should sit back and wait to see how the powers that be will respond. Biden promises to fight this ruling in the courts, but the highest court, the Supreme Court, is packed with fascists who ripped away the constitutional right to abortion last year. Biden says, ‘The only way to stop those who are committed to taking away women’s rights and freedoms in every state is to elect a congress who will pass a law restoring Roe versus Wade,’ but the Democrats had 50 years to codify abortion rights and they never did. On top of that the fascist Republicans attempted a coup on January 6, 2021. They illegitimately expelled black representatives in Tennessee.
In response to Trump’s recent arrest, Tucker Carlson said, it’s not time to give up your AR fifteens — I don’t know whose voice that was. Counting on these fascists to respect a meaningful election they lose is delusional. We must rely on ourselves. Now is the time to raise your voice in opposition, take to the streets, disrupt business as usual. Mobilize the one force that can compel those empower to back off their assault on abortion rights. The masses of people standing up in our hundreds and soon thousands, and then millions. We refuse to submit to female enslavement through forced motherhood, legal abortion, on demand and without apology, rise up for abortion rights.”
Relying on the courts, relying on future elections, is not only delusional, but deadly. Don’t wait and see how the Supreme Court, filled with fascists who just overturned Roe, rules. Women’s lives, freedom, humanity and futures are on the line. Now is the time to rise up to not hand these fascists the future. I also have to add: Shut all the way up to anyone everyone talking about how this is a “losing issue” for the GOP. Instead, let’s talk about who is losing right fucking now: The women girls and others with the capacity for pregnancy in the 14 states where abortion is banned or severely restricted with six week bans. The women and girls throughout the South who are locked in increasing abortion care desert, especially as a six week ban on abortion has just been signed into law in Florida.
Since Dobbs, Florida received patients from across the South. When that goes into effect that will no longer be the case. Let’s talk about who is losing right fucking now: The desperate teens in Idaho whose caretakers can no longer take them out of state or drive them to pick up abortion pills in the mail for them without fear of imprisonment, based on the ludicrous and cruel “abortion trafficking law” in the state. Let’s talk about who is losing right fucking now: The average of 5000 women and girls forced to give birth each month since the Dobbs ruling. Let’s talk about who is losing right fucking now: The women and girls forced to give birth to their rapists, babies. Let’s talk about who is losing right fucking now: The women in Texas forced to stay pregnant until they miscarry or deliver a baby that could not survive outside the womb. Let’s talk about who is losing. right fucking now: The women forced to bleed out at high risk for infection made to go through torturous pain left scarred physically and emotionally to nearly die because the fetus had a heartbeat. After listening to today’s show, check out our late last episode on the post Dobbs human rights emergency to get into more, who is losing right fucking now.
I recorded my interview with Mark prior to the Fifth Circuit ruling and the appeal to the Supreme Court. His analysis, however, remains relevant in clarifying. With that, here’s Mark. Mark Joseph Stern, Senior Writer covering courts and the law for Slate Magazine. We’re so glad to have you on the show to help us understand what can only be called an epic shitstorm. [MJS: chuckles] for Law, women’s rights, non binary folks, trans men. This is an emergency situation and that cannot be underestimated. And because a lot of it is really confusing, we wanted to bring a lawyer in to help us wade through this shitstorm and what actually is happening, what are the implications, and how can we make sense of this together so that we can take action, in line with our mission of refusing fascism?
Mark Joseph Stern 11:53
It’s remarkable. The decision from Judge Matthew Kacsmaryk in Amarillo, Texas, purporting to suspend FDA approval of mifepristone, the first drug in medication abortion, this is in at 67 pages — you could open it up to any page and identify at least two errors, if not three. It is one of the sloppiest and most dishonest pieces of judicial writing I’ve ever seen, and I’ve seen a lot of dishonest judicial writing in my time. It’s barely even pretending to be law. It really does read like an anti-abortion screed; like a polemic against abortion. It badly manipulates and contorts the facts and the precedent to get where where it wants to go, which is, of course, a federal ban essentially on mifepristone. That’s what Kacsmaryk wants. Whether that’s even possible is another question.
But yeah, it’s shocking. I generally am not able to be shocked. I’ve seen most of the bad stuff that courts can do at this stage and I’m used to it. This was a step beyond. This was a step into total lawlessness and judicial arrogation of power of the kind that we’ve never seen in the history of the country, frankly.
Sam Goldman 13:05
Yeah, I was hoping that you could walk us through a little bit. Some have argued that this decision could have even more far reaching influence than Dobbs potentially. Yet, it’s a little complicated. It’s not as cut and dry as the Dobbs decision was. Partially, it’s because this has never been done before — at least to my understanding. It’s made top headlines, and yet it doesn’t seem like people quite understand what is happening here. So, in broad strokes, simple terms, what was ruled upon
Mark Joseph Stern 13:38
To your point, I’ll just preface this by saying I think Dobbs was a terrible decision. I think it badly botched the history. I think it was malicious and extremely misogynistic in erasing women in their interests. I think it was a direct assault on precedent and to the very foundational stability of law. And yet, I think Dobbs was 100 times more defensible than this decision. Which is not even to say the Dobbs was defensible, but just to kind of give you an idea of how this is in a different league of lawlessness. Even though Dobbs was atrocious, this is almost in a different category.
So, what did the decision hold? This was a case that was brought by a group of anti abortion doctors who are seeking to suspend the approval by the FDA of mifepristone in the year 2000. You remember 2000, we had just gone through Y2k, computers were very large Bill Clinton was President. The FDA approved this pill all the way back then. There’s actually a six year statute of limitations on when you can challenge an agency action like that in courts. The plaintiffs here waited 23 years, not six years, but the judge literally just ignored that. These doctors, they don’t prescribe mifepristone, which is, again, the first drug in a medication abortion regime, they don’t want to prescribe it and they don’t have patients who take it.
Instead what they have said is they think that at one point in the future — unclear when, could be weeks, months, years decades — a patient might walk into their practice and say: I had mifepristone and prescribed to me by someone else who you don’t know, I had bad side effects from that mifepristone that was prescribed by somebody else and now I’m coming to you for treatment. And the doctors argue that that hypothetical scenario in the future is enough to give them standing to ask for a nationwide suspension of mifepristone. Obviously, insane. To be clear, that’s not how it works.
The federal courts have said many times that to have standing to sue, you have to have a personal injury that is actual or imminent, it can’t be hypothetical, it can’t be totally speculative. This is the definition of totally speculative. But set that aside, they also argue — and I don’t want to get too deep into the weeds here, because it’s just nutty, nutty stuff but — they have this conspiracy theory that, basically, the FDA only approved mifepristone on an accelerated basis in 2000 because Bill Clinton was applying pressure on the FDA alongside population control advocates who wants to use abortion as a means of reducing global population and possibly imposing eugenics on the United States — so they cut a bunch of corners and changed everybody’s minds and we’re like: You know what, we’re just going to license this immediately without even taking a look, it doesn’t matter what we do, we’re just going to put it on the market. And because they cut so many corners, according to this complaint, the courts now have license to over rule their decisions 23 years ago.
So, where can we identify some problems? Well, the conspiracy theory here is not true. The FDA studied mifepristone for well over four years. It actually took way too long to study mifepristone and was afraid of political consequences, not afraid of provoking the ire of Bill Clinton’s White House by not approving it. This was something that everyone was scared of doing. The FDA only finally did it after it had many, many, many studies that proved that if a person was safe and effective. Those studies were as good as you can really get for the FDA. They were very clear and very conclusive. Mifepristone was approved, and for the last 23 years, it has been used safely and effectively.
Yet, Judge Kacsmaryk comes in and says: I disagree. He looks at 150 scientific studies that show him mifepristone is safe and effective and says they’re wrong. Instead, what does he do? He goes to an anti abortion website, where people anonymously post stories about their abortion regret. He looks at, I believe, 54 blog posts that are purportedly from women who say they regret their abortions — could be all the same person, the whole system was set up by an anti abortion group — and he says this is proof that mifepristone is dangerous and bad, and so I am going to overturn the FDA’s approval and suspend it from the market. That is something that no judge has ever tried to do in the history of this country.
We have never seen a court plain just suspend the FDA’s approval of a drug. It’s not a power people thought that courts had, and frankly, I don’t think it is a power that courts have. There’s a complicated process under law that the FDA has to go through to withdraw a drug from market so that people don’t suddenly have medication yanked away out from under them, and Matthew Kacsmaryk is directing the FDA to essentially break the law by ignoring that process and yanking this drug all at once. It is a demented decision, it makes absolutely no sense and it really rests, not on facts, not on law, but on a brazen assertion of power to say: I get to decide who gets to have an abortion, and I don’t want people to do it, and I’m going to do everything in my power to stop them.
Sam Goldman 18:50
And if they do it, it should feel like punishment. If they do it, it should be less effective, more painful, and feel like punishment. [MJS: Yes] I really found your breakdown helpful; both in terms of what is different about this case, and also the ways in which it is so pernicious. When I was looking at it — I’m not a lawyer, you know, I’m just like an everyday person who is concerned and — I had to say it was ctrl-copy the plaintiffs documents; the whole thing was there.
I wanted to talk a little bit about that because I found that to be something really helpful in your piece up on Slate about what the content of the ruling was, and the seeds that were planted within it for further harm. The ruling entered into the federal court record a litany of the most dark ages shit; the most vile women hating anti scientific garbage. [MJS: Yeah] You spoke to multiple levels of harm or damage. One that popped out to me and then I saw it spoken to, and what you wrote about, was enshrining fetal personhood.
You talked about how it overstepped the law, how courts technically can intervene — correct me if I’m wrong, please — six years post approval of a drug — this has been 23 years. From denying law, denying science, delegitimizing a whole federal agency — which I think is worth noting — and also planning some more Comstock action, reviving that zombie that we can never put down or that we have never put down. Can you talk a little bit about what’s been entered into the record that you find most egregious, most concerning. You spoke a little bit about how it could have far reaching consequences, potentially with their aim of the national abortion ban.
Mark Joseph Stern 20:46
There’s two different things here to focus on. First of all, there’s the fact that Judge Kacsmaryk says that one of the reasons that he needs to issue this decision immediately and have it apply nationwide is to protect fetuses from mifepristone. For support for that proposition he cites an amicus brief that was filed by two fringe scholars who argue that fetuses are persons under the Constitution with equal protection rights and that abortion bans are actually required by the Constitution, and that if a state allows abortion, federal courts need to come in and strike down their abortion laws and force them to declare abortion as murder or killing in order to protect the equal protection rights of fetuses.
That is, again, fringe theory — highly, highly contested, very, very contested. And yet, Judge Kacsmaryk cites it as though it is the truth and the law. He doesn’t say: Oh, there are a few guys out here who think that fetuses are persons or the contrary, he just says it as though it’s the truth. Again, it’s not hard to see what the implications of that are. It’s that he doesn’t just have the power to ban mifepristone, he has the power to issue a purported nationwide injunction and said: You know what, I’m just going to issue this sweeping decision because I need to protect these fetuses from mifepristone, but the same logic could apply to any kind of abortion anywhere in everywhere.
The same logic could apply to an abortion that takes place procedurally in the District of Columbia, to an emergency abortion that takes place at a hospital in California, it could apply anywhere, and this judge is so lawless and so out of control and out of his lane, that I think it could. I think that’s got to be the next case before him if he gets away with this. Then, turning to the other thing, like if that’s not enough, the Comstock Act, which is this federal law that’s been on the books since the 1870s, that was a Victorian era kind of prudish attempt to censor the mail. It has this provision that the judge read for the first time in the courts — this has not been the reading, but he read it — to ban the mailing of any abortion inducing drug.
The federal courts have spent a lot of time dealing with the Comstock Act, and there’s a unanimous consensus that it does not, in fact, ban that. What it bans is an intent to use the mail illegally to produce something illegal, to produce a crime. So, if, let’s say, you sent mifepristone to someone in Texas, who took it illegally, that in theory might violate the Comstock Act, but simply mailing mifepristone on to your patient when you’re in California or whatever, there’s no way that violates the Comstock Act. But Kacsmaryk says it does. He says anytime you put a medication abortion in the mail, anytime you put it in a common carrier, anytime it’s being carried by anybody, basically, who’s not you, that is a federal offense that could be punishable by years in prison.
That’s just another effort to ban abortion nationwide, because like think about it for two seconds, these pills have to travel somehow, whether it’s by wagon, or by plane, or by USPS or by FedEx, they’re going to have to be transported and what has America has done is given the broadest possible reading to this law so that any kind of transportation of the pills are unlawful, and that would effectively ban medication abortion in all 50 states by making it impossible to access the pills.
Sam Goldman 24:03
My understanding is that this could potentially impact not just mifepristone but misoprostol, as well.
Mark Joseph Stern 24:12
This is a very complicated issue, because misoprostol is the second drug and a medication abortion, but it can be used by itself to cause an abortion. Misoprostol has a lot of off label uses, and what I think Judge Kacsmaryk would say is that if you prescribe misoprostol for an abortion, you violated the Comstock Act as soon as you drop it in the mail. What you could potentially do to try to get around that is to say: Oh, hey, I’m prescribing you misoprostol for stomach ulcers, wink wink, and use that together on the Comstock Act, and that would potentially be okay. This shouldn’t be a question because the law doesn’t do what Kacsmaryk says it does, but yes, absolutely. This really sort of turns the case into an attack on not just mifepristone, but both drugs used in a medication abortion and that I think is really dangerous and scary.
Sam Goldman 25:02
One of the things that I wanted to make sure that we talked about was that this isn’t the only case happening. This ruling wasn’t the only ruling that came out. A federal judge issued a ruling out of Washington State, and you wrote about how these dueling decisions have within it, a potential constitutional crisis. I was wondering if you could speak a little bit about how you see that playing out.
Mark Joseph Stern 25:29
This is, I think, one of the best examples of why courts should not go way over their skis and issue decisions that apply far more broadly than they’re legally allowed to. So what Judge Kacsmaryk did here was apply his decision nationwide — and he has a king complex, he does this all the time. He issued this sweeping nationwide decision that says in every state mifepristone needs to be suspended; doesn’t matter if it’s Texas, where he sits, or whether it’s Hawaii, mifepristone has to be taken off the market.
Twenty minutes after he issued that decision, this other Judge, Thomas Rice, comes in and issues a completely different ruling, an injunction that says actually, mifepristone is perfectly legal, the FDA approved it legally, and I think that the FDA is still imposing too many restrictions on mifepristone — that the current requirement that pharmacies undergo this very, very complicated certification in order to dispense mifepristone, that that goes beyond any kind of reasonable scientific basis, and that it’s illegal.
So Judge Rice in Washington, who is an Obama appointee, I’ll note, he issues an injunction that applies to the plaintiffs in that case, 17 blue states and the District of Columbia, that says: Hey, in these states, the FDA is not allowed to restrict access to mifepristone; In these states, the FDA has an obligation to continue allowing mifepristone. So what we have here is two mutually exclusive orders, both of which are purportedly binding on the FDA. Not something we’ve really seen before, to have the federal government under two completely different orders.
The problem is, this is forcing the government to break the law. Either the FDA follows Kacsmaryk and breaks Rice’s injunction, or the FDA follows Rice and breaks Kacsmaryk’s order. It has to choose and if it chooses the rice order, and it allows mifepristone to stay available in the States, Matthew Kacsmaryk could issue a contempt of court order and try to drag in the head of the FDA and hold him in contempt of court. This could get really, really ugly, to have competing judges issuing dueling decisions.
Again, that is like a great illustration of why judges are supposed to issue decisions that apply to the plaintiffs and the parties before them. You are not supposed to just automatically default to this vast, sweeping 50 state decision. But that’s what Kacsmaryk does in essentially every single case. So we are at a point now where I think it’s fair to call it a constitutional crisis. The executive branch does not know should it follow one order or the other. Either way, it’s going to be in a position where it has to break the law.
Sam Goldman 28:01
I wanted to close, while I have you on, asking you how you see this case fitting into this larger remaking of the judiciary, and a means to advance some of the most violent, extreme theocratic games. We’ve seen this across the country, and I was wondering, how do you see this fitting in, whether you want to talk about the judge as an example or any other aspect of it.
Mark Joseph Stern 28:31
Let’s not beat around the bush. Matthew Kacsmaryk has been an anti-abortion activist for his entire life. He had his toddler wear a shirt that said I survived Roe v. Wade. He volunteers at an anti-abortion group. He is strenuously opposed to abortion under all circumstances. He has been an activist in the fight against Roe v Wade his whole life, and that is why Republicans chose him for the federal bench. They picked him for this role. They selected him because they wanted him to be the anti abortion judge.
It’s absolutely no coincidence that when the plaintiffs were shopping around for a judge, they filed in his division, knowing that they would draw him and him alone. Just for clarity, normally, when you file in a court, there’s a bunch of different judges and you get randomly assigned to one. But they went out to Amarillo, Texas, and filed in his little courthouse where they were guaranteed to get him. Why? Because they knew he would side with them. I think this is a good illustration of so many problems with the court; so many pathologies with the courts, I would say. The judge shopping, the activist and robes, the partisanship. It really transcends that with what you call the theocratic element.
I try not to bring religion into these kinds of discussions where I’m not certain that it played a role, but it played a role here. Come on. The very first footnote in this opinion, says I refuse to call fetuses fetuses because that’s an unscientific term, I’m going to call them the unborn. This decision spurns all known science in favor of an incredibly blinkered view of 54 Anonymous blog posts that he found on the internet. This is one of the most openly biased decisions I’ve ever seen. I think there’s an element of partisanship to it, but I also think that fundamentally, this guy wants to stop as many abortions as he possibly can — as I said, using any tools you have at its disposal — and why? because those are his religious beliefs. That is a scary place for this country to be in.
There’s no progressive analogy to that. You don’t see Jewish judges shutting down public schools on Passover. I mean, there’s no real equivalent, but you don’t see Muslim judges banning daylight hour eating during Ramadan. You don’t see this stuff from other judges and from progressives in general, you only see it from conservatives, because they have so fundamentally intertwined religion and the law. It’s just so tragic, because for 50 years, we had an imperfect regime, right, Roe was not perfect. There were a lot of abortion restrictions under Roe that shouldn’t have been allowed. The Supreme Court allowed way too much patriarchal restriction on women’s choice.
But, there was still a fundamental recognition for those 50 years, that religion alone cannot justify this kind of restriction; that religion alone cannot tell a person you don’t have bodily autonomy, because your lawmakers or your judges think that Jesus wanted to ban abortion. Now that’s all out the window, so I do feel like this is a cards on the table moment — to mix my metaphors. What we’re seeing is one of the most brazen acts of theocratic defiance of the law in the history of this country, and if the higher courts do not weigh in quickly and decisively — what I really want to see is conservative leaning judges smacking this down, not just liberals, but conservative judges who have some sense left in them, they need to see that this is bad for their project, because — this really diminishes faith in the judiciary, confidence in the judiciary. They’ve captured the judiciary.
All they have to do is not screw it up and lose all legitimacy and they get to keep making law and making policy from the bench. But stuff like what Kacsmaryk did, it’s too far. That could lead to, I think, real danger for the judiciary, and real danger of the political branches ignoring decisions. So they should take a step back and wonder if this is really what they want, or if Matt Kacsmaryk has gone too far too fast.
Sam Goldman 32:26
Thank you so much, Mark, for taking the time to talk with us to share your expertise, your perspective and your time. I want to make sure that folks go to all the places you want them to go to find your writing and all your good stuff.
Mark Joseph Stern 32:38
You can go to my Twitter @MJS_DC, for as long as I have it. Twitter sucks now, but whatever. And you can just go to my Slate author page, just google Mark Joseph Stern, and you’ll find all of my work there.
Sam Goldman 32:57
Thanks so much. [MJS: Thank you.] I got to note that the Fifth Circuit ruling fully embraces the Comstock act and in fact, the panel’s suggested that shipping any item that can be used for abortion is a federal crime — without any illegal intent. Women need illegal abortion on demand and without apology to be free. As Coco Das, editor for RefuseFascism.org said in a rapid response protest out in Texas: “It is time to get real. It is time to fight. It is time to win back abortion rights in the same way it was won in the first place and the way it’s being won in Latin America. Not by sitting back and relying on the courts and legislators, but in the streets with defiant determined and growing protests to stop these fascists from violating women’s fundamental rights and achieve abortion on demand and without apology nationwide.” A link to her speech is in the show notes.
Now here’s my interview with Dr. Elizabeth Newhall.
Elizabeth Newhall M.D. 33:54
I was at the FDA hearing when mifeprex was approved. I actually was a presenter at that meeting. So I heard the conversation. The whole thing pros and cons when people say: This wasn’t said. That wasn’t said. It wasn’t careful. All these things. Everything was said. We’ve been at the same back and forth. What we need is to somehow break the impasse.
Sam Goldman 34:16
I do think that breaking the impasse means we have to call them out when they pretend to say that it is a concern about women’s health or their safety. They’re liars.
Elizabeth Newhall M.D. 34:28
Yes, they are liars. It’s a mix of really not understanding core baseline medical knowledge. When we were going to do the first telehealth study, I was recruiting people around Oregon because I worked for free clinic and I’ll see how many providers there would be around Oregon willing to be the backup. We hadn’t even thought of no touch abortions yet in our country. What I learned from talking to doctors and providers and nurses was — this is probably in 2017 — it was authorized, approved in 2000 — first question: Oh, is that legal now? Oh, is that legal now.
When it got approved, we did the first study in ’93, the Population Council and Ingenuity. We used to meet once a year until the pandemic, more and more people around the world approve the drug and we started to go around the room first by countries, then continents to discuss studies and what was going on and we were talking about the green kerchiefs, you know [SG: Yeah], Latin American women and how they got around it. You can get it over the counter in China, they didn’t come to the meetings, but Vietnam, lots of places.
We imagined that the simplicity and safety of this method was going to impress the medical community. This is in the 90s, right, doctors are getting killed and threatened and not only are clinics sitting ducks, but it’s a judgment of women that this one thing in medicine, you have to go to a special clinic for. Because it’s risky? No. Because it’s dangerous? No. Anyway, we really imagined that it would change that situation. In my office full of gynecologists, the best doctors in this town, they’re learning how to do laparoscopic surgeries, hysterectomies, just all that was breaking through.
I remember putting a copy of the first protocol that, ehh, Mama Newhall’s recipes for mifepristone, I jokingly called it, and they would just send them all to me. Second thing was people would come to the clinic that I worked at downtown, and my partner’s patients would come there, and I said: Do you know your doctor is pro-choice and will do your procedure awake, asleep, medical? You have the whole Cadillac array available to you, at your gynecologist — never thought to call.
That’s the other problem. Because of this separation, women don’t think to call their doctor. If there were a movement that would be free and cheap and easy, I have always wanted women to all call their doctors and say: Hey, I’m preparing for you know, whatever, can I get the medical abortion pill from you? Women are so entrained [for] it to not happen at their doctor’s office. But that’s part of the problem. And doctors certainly haven’t gone out of their way to reach their arms out. That’s where we could have swelled this up in 2000… poof.
Sam Goldman 37:27
Let’s back up a minute before we go forward because this is all really fascinating. I just want to recap for our listeners, this kind of chaotic maze that we’ve all gone through in this past just week. On April 7 a Trump appointed federal judge ordered the FDA to withdraw its approval on mifepristone — a medication that is safer than Tylenol, that is safer than Viagra, and is used in more than 50% of abortions in this country. This order was scheduled to go into effect today [Friday, April 14]. The ruling was saturated with theocratic language equating abortion to the killing of children and resurrecting what I call the zombie law, the 1873 Comstock Act and arcane chastity ban that could lay the basis for criminalizing abortion that’s mailed nationwide.
Then, late on April 12, the Fifth Circuit Federal Court of Appeals dramatically restricted women’s access to mifepristone. Among the illegitimate restrictions put on mifepristone was they went back to the 2000 rule, which was that it could only be prescribed by doctors no longer by nurses or other health care workers; that women must show up in person at the doctor’s office to get the pill, no longer able to get it through telemedicine or mail; and that it could be only prescribed up to seven weeks into pregnancy instead of the 10 weeks. Seven weeks, most people know, this is long before most women even know they are pregnant.
As we record today, April 14, at about 6:38pm, there’s a five day administrative stay from the Supreme Court as they review the case. They will be making a ruling I believe, April 19th, that’s next Wednesday. You know that same Supreme Court that, just last summer, overturned Roe. You know whose analysis I feel we really should hear? Not any of these judges, but an abortion provider with tons of experience in medication abortions. So guess what? We’re talking to an actual expert, Dr. Elizabeth Newell, an OB GYN based in Oregon with tons of experience. In fact, she worked for a decade on getting mifepristone approval. Welcome Dr. Newhall? Welcome Liz, thanks for joining us.
Elizabeth Newhall M.D. 40:02
Thank you for having me.
Sam Goldman 40:04
I want to first start off by asking you to tell us a little bit about mifepristone, the drug that’s at the center of this and your experience working to demonstrate its safety and efficacy.
Elizabeth Newhall M.D. 40:20
The first study was in 93, and we did it in our clinic, and it was shortly after David Gunn was killed in 93. I was put on one of the deadly dozen hit-lists while we’re starting to study, they’re putting in bulletproof glass in our clinic, and women are stepping right around and coming on through, because they really, really, really knew they wanted this method. They wanted to participate. It was an amazing display of the tenacity of women.
The first few times we did the early regimen, and had women do the whole process in the clinic. Of course, we’re experienced abortion providers, and we know that me and my little suction tube you could just make this happen 30 seconds, and so, of course, we intervene more than we do now. I would say having delivered thousands of babies and bunches of miscarriages and bunches of abortions, that a spontaneous abortion, misabortion, you name it, it’s birth, labor, all of it. Everybody’s different. Every single study, every single step, the efficacy got higher, the safety was better proven.
We learned fairly early on, you don’t need three pills, you only need one. So the price came down. We learned that vaginal misoprostol helped extend the gestational age, and it was better tolerated. Fine tuning of the regimen just improved and improved and improved. And know that in medication abortion, we count it as a “failure,” even if the pregnancy is gone, but there’s still some residual tissue causing enough symptoms that we elect to intervene with a surgical intervention. That makes the numbers look higher. In fact, 99% of pregnancies are ended.
And so by the time this approach was actually approved, we were using a lower dose, we were using different regimens, we were going further, everyone was much more comfortable with it, it was used in more and more places. We really thought that everything was going to be so different after this, because the problem would disappear into the mainstream of medicine; doctors would be so amazed. If you could make something better in that department, you’ve helped a lot of people. Imagine, no machines.
This is what we needed all along. It didn’t change like that. Clinics continued to be the ones who used it, and more and more laws have gone up against it, making it more and more difficult. Before this whole brouhaha started, people were confused about what was legal and what wasn’t and how it worked. It’s amazingly easy. Way more accessible to women. What it is, is safe, common, and out of the bag; it’s everywhere. I’m thrilled. I never guessed it would play out in this way, though, I have to say. I thought that good sense of my profession would step up to the plate. I’m disappointed in that way.
Sam Goldman 43:25
Yeah, I mean, it is something that it wasn’t further embraced. There’s been so much talk about the FDA approval process. This was a drug that has been approved for decades now. What do you wish that people understood about what you and other doctors did as part of this approval process? It was extremely rigorous. What do you think that people don’t get about this process?
Elizabeth Newhall M.D. 43:54
I believe the presentation to the FDA was made in the summer of ’96. We did the studies, collected the patients in 17 sites from 93 through 94. Got our data. Then we had to prove to the FDA that we could reproduce the studies that had been done in Europe — largely in France, also in Scotland and southern England. We used their regimen precisely, and our numbers weren’t quite as good as theirs, but they were within a standard deviation, if you will.
Everyone recognized for example, number one, because the women were forced to stay with doctors who were inexperienced with this method, who wanted to help them out and empty their uteruses and stop their discomfort, so we overdid, for example, you could say rescue D&Cs. We had a 92% success rate instead of a 98, but that 6%, when you looked at what the process was and reviewed the charts and why it had been done under the regimen was finally approved and that we use now, those women were doing fine. Those were for the doctor’s health, not the woman’s health. And all the other numbers were really very close.
Shortly after that we discovered, everywhere, that oral misoprostol had a different effect than vaginal. That made some slight differences further on. But basically, we did exactly the same studies: oral misoprostol, oral mifeprex — three tablets of mifeprex followed — within the same day, I think within four to six hours — with the oral misoprostol, and then they stayed in the clinic. Point is they were close enough to the European numbers that the FDA accepted them. But moreover, in that process, I will say, it went on for about three days. I presented from the clinical side and people presented from the biochemical side, from the: how many blood cells lost, whatever, versus average.
But they also came from every aspect of the anti-choice movement to discuss how it was that they thought this was bad, because blah, blah, blah, blah, blah. I only mean to say that it sure seemed like every single thing that I’ve ever heard about medication abortion and why it’s unsafe, it has to do with how it works; women bleed, women cramp. Pregnancy is an inherently more dangerous state than being not pregnant. So when you’re pregnant, you have more risks than a woman who is not pregnant. And to get from pregnant to not pregnant, you’re gonna bleed. Whether it’s a miscarriage, or a delivery, you see what I’m saying. That’s how the system works.
But every side was represented. And there was one member of the committee who, by her questions was clearly anti-choice. And they voted. She voted with the unanimous for for approval. She was a scientist, she put in her two cents. It was at that point that I knew this drug really was as fabulous as we knew it to be. It was a great international effort to help women and people having children and the WHO recognized it, the American College of OBGYN saw it. So, it’s so apparent, I don’t understand how Catholic hospitals cannot provide this.
Sam Goldman 47:33
It is cruel. [EN: Yeah] And I’ve said this before, but I really do feel that it is about punishing women — especially when it comes to miscarriage management, and you withhold this. That is punishing that woman. When you are saying: If this would be banned, and people only were able to access a miso only procedure — which, obviously, that drug shouldn’t be available. I’m not against that. Doctors should use everything in their toolbox. Patients should use whatever they can get their hands on right to safely do this. But we’re talking about intense cramping and more bleeding often. Not that it isn’t effective. Not that it isn’t good, it’s great. But it would be to punish women. It would say you’re gonna have a more painful outcome because we don’t like what you’re doing.
Elizabeth Newhall M.D. 48:23
It’s gonna take longer… Yes, absolutely. It’s the whole circle. When I was in medical school — and of course, the second trimesters were miso only, they injected either saline or misoprostol and the point is — those women labored and suffered. We thought we’d made such a big breakthrough to get away from the prostaglandin bearing on abortions. We are uncomfortable with sex in general in our culture; anything that has to do with sex. If people talk about ectopic, non-viable, outside of the uterus pregnancies as not being able to be treated, because it stops a beating heart, are you kidding me?
Women’s lives really are being put in much greater danger. Back when abortion was legalized, a lot of it was from doctors begging for it to be legalized so that women would not harm themselves in this way. Criminalization does nothing to change, how it works — nothing, nothing, nothing. Absolutely, if I have misoprostol and my patient needs it, I am ethically wrong not to give it to her. So they have that silly gag rule. Remember that? Are you kidding me? You do not get to say what comes out of my mouth. Reproductive freedom is to those with wombs what free speech is to those with mouths. It’s not alone. It’s me. It’s like the magic circle of your body that no one has purview over or you make things worse. It’s that simple.
And this drug makes it so much easier for people to be in charge of their bodies. I love to quote and statistics on mifeprex’s deaths and bad outcomes. Since 2000, there have been 5.6 million medication abortions, and there have been 28 deaths. Almost 100 ectopic pregnancies. Some of the deaths are from infections, about a third, and blood loss. But almost two thirds of these deaths are you ready? homicide, suicide, drug overdose, self-inflicted wounds. Almost two thirds of the morbidity has nothing to do with other than how much worse it is for pregnant women, how desperate they are, how much more vulnerable they are.
Sam Goldman 50:49
And how dangerous it is to be a woman, especially a pregnant woman in this country. [EN: Yeah] When you look at how safe, in numbers, of that, because it’s very stark, it’s very clear how safe it is. What that number doesn’t include is how many women graduated college, got their degrees because of the drugs; how many women had pregnancies that were safe, that were viable, that were wanted; how many women were able to get out of abusive relationships and maintain personal safety, and just live the lives that they wanted to live; not be driven deeper into poverty, all of these things are real. And the main thing that people feel after they get an abortion, whether it’s surgical or medical is relief.
I wanted to talk about how big of a game changer this was, in terms of, yes, empowering people, but also increasing access. This drug has greatly increased access, especially with these waves of state bans that have swept the country. This has been a lifesaver, telemedicine, and with COVID, the abortion pill really saved a lot, a lot of lives.
Elizabeth Newhall M.D. 52:02
Pregnant women who had COVID did not do well. It was awful. When the pandemic happened, I thought: Oh, the good thing that’s gonna come out of this is they’re gonna see how essential a national health care system is, because look, everybody’s in the same boat, and we’ve got to help each other to be more healthy, and this is going to be a great inspiration. No.
Sam Goldman 52:29
It didn’t work out that way. It exacerbated the preexisting divisions in society and underscored them. I wanted to get your thoughts on how, if — I’m saying if because I am not a mind reader, and there’s always room for us to impact things [EN: Who knows, right.] and they may decide that they care more about corporations than they do about their hatred of women, I don’t know, we’ll see, but if — the Supreme Court does uphold the wolf in sheep’s clothing that was the Fifth Circuit decision — the partial stay — there would be several restrictions to mifepristone.
I mentioned them earlier: that it be prescribed only by doctors, that women must show up in person, and that it be only prescribed up until seven weeks into pregnancy. I wanted to get your thoughts on how this would impact the work that providers do, and how it might affect those who provide surgical abortions, and how it would have impact patients. They made a less theocratic ruling than the one out of Texas. [EN: Yes] They upheld a lot of the Comstock things in a very dangerous way.
Elizabeth Newhall M.D. 53:52
First of all, no doctor is gonna hand a woman three pills when one will do. That’s malpractice. No one’s gonna do that in their right mind. Number two, good old Comstock. One of the pieces of that legislation was that men were permitted to use condoms to prevent getting venereal disease from prostitutes, but they are not permitted to use condoms with their wives to prevent pregnancy. That was written into Comstock’s law. Gives you a kind of the idea of who Comstock was, puts him into the proper perspective. It would be bad medicine to return to those protocols, and no one could do it in good conscience.
As far as the limitations and so forth, in the first place, you have to do good medicine. One of the things that we went back and forth and back and forth through all the studies that I remember so clearly was: Is ultrasound a required part of the assessment? The answer is: It is not required. If you can feel the size of the uterus and the woman is reasonably confident of her dates, there is no need for ultrasound. So these limitations that are ultrasound based have no place in the original or any subsequent protocols. The only time you should get an ultrasound or need to is [if] you can’t assess the gestation — you need more information to assess the patient.
The point of this is we do it everywhere, pretty much, in America and in lots of places they don’t. These lines that are drawn legalistically, in my mind are kind of: Okay, so stop doing ultrasounds, you see, that’s easy. Why do you have to look? Or has the state imposed an ultrasound requirement, an unnecessary cost and procedure potentially invasive as well for a woman, given whatever history. At a certain point, somebody is gonna have to acknowledge that the emperor has no clothes and this makes no sense, and that people are legislating who don’t have the information or the background to make decisions that they’re making. Really, this is hurting families. This is hurting women.
When birth control is legal for married women in ’66, the birth rate went from what six or eight down to 2.2, in a blink. Did women want those giant families? No, given the option. I don’t think it’s that simple to control women in that way. And lastly, abortion is murder, fetal personhood. I would ask each and every American to look around at the women in their world, the moms, the Apple pies, the teachers, the coaches, everybody at their churches, all the women around us, [are] you telling me that a quarter of them, at least, are evil murderers? Is that the world that we live really live in? I mean, either women are bad, or abortion is ethical. Both can’t be true. I just don’t think women are bad.
I think women want to be good mothers. I think women care about their families. I think women care about the world and improving it. I think women care about all the things that everybody cares about. A good healthy education, world, kids happiness, I can’t see how anybody can actually tangibly equate what they’re saying and legislating with the world they see around them.
Sam Goldman 57:23
It really is something to think about the view of women that those making these laws must have; how little they must think of our lives and our worth, our potential and our humanity. I can’t help but think if it’s an all out ban, but even with these horrific restrictions, what it would mean in terms of rolling back and forcing people into giving birth against their will. Because the reality is, is that yes, it would force travel. And yes, people would travel, but not everybody will be able to travel to get a surgical abortion. Not everybody will find a doctor that’s willing to defy.
We already know that since Dobbs, over 5000 women have been forced to give birth, have not been able to get an abortion. Those numbers would rise and I just can’t help but also think about the long waiting lists that would be faced at providers that provide surgical abortions. There wouldn’t be a way, I can only imagine, that a place like New York, where people already do flock to to get abortion, would be able to accommodate these rising numbers. There just isn’t the infrastructure.
Elizabeth Newhall M.D. 58:37
It’s happening. Waits are longer. Women are getting their abortions later and later and later. Thusly, less and less safely — if you have the luxury of traveling. I went to medical school in the 70s and we didn’t have ultrasound, we didn’t have much in the way of [di]agnostics anti-partem, or before birth. So you would deliver all of the anomalous babies, and then they would die, sadly, and the woman’s uterus would be harmed in ways sometimes that may subsequent bursts, either impossible or harder.
In other words, I remember when women didn’t get early intervention and it was not good, not pretty, not healthy, and talk about a trauma to a woman. Boy, everybody wants to be not pregnant, but when pregnant and when faced with an abnormality, what an agony of a decision. And to then make him go to a strange place by strange means, and there are strangers to help, but it’s just cruel. It is cruel, and we don’t deserve it. We’re never gonna give up and we’re gonna win this. It’s simply going to be that way.
Everything that they’re doing to make us work against, stumble over, is just more women hurt, more children hurt. You want to know rotten way to grow up, is to have a mother who doesn’t want you. That is not also good for society. The crime rate fell after abortion became legal as well. There weren’t as many kids committing crimes. Truly, we have to find a way to connect our common senses together. They’re stuck in mortal stage development two, in which this is the rule, and that’s just how we do it. The Bible says nothing about abortion at all, the soul is breathed in at birth.
I was raised Catholic, the soul is breathed in at birth. Look at Buddhism, look at Hindus, look at American Indians, everything, you know, breath is life; it’s the interface. Why wouldn’t that be when life begins? It seems so simple. I don’t see how they can be so sure. Clearly, we all have to decide for ourselves. I’m sorry, but I also think that we as providers need to participate. We need to show our morals and our ethics and our care.
Sam Goldman 1:01:06
I want to thank you so much for all the work that you do every day, that you’ve done throughout your career, to give women the lives that they want, the lives that they deserve, to take care of their health care. Thank you so much for talking with us and sharing your expertise, your insight and your time.
Elizabeth Newhall M.D. 1:01:25
It was a pleasure talking to you. I appreciate the opportunity. Thank you very much. Thanks for what you do. Take care. Goodbye.
Sam Goldman 1:01:32
I don’t know about you, but I refuse to accept the terror of losing the right to abortion state by state. I refuse to accept the dehumanization real women are going through right now. I refuse to accept leaps in theocratic rule. I refuse to accept that women be relegated as second class citizens. I know that without this basic right women can’t be free. I refuse to live in a world where doctors are arms of the fascist state. If you feel that way too, good. Join the fight to demand hands off abortion medication. Demand legal abortion on demand and without apology nationwide and everywhere. Go to RiseUp4AbortionRights.org.
Sam Goldman 1:02:20
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