Medication Abortion and Future Outlook

This is the Guardian . Last week, the United States Supreme Court all but gutted the votinghts. Rig Act Today's decision by this illegitimate Supreme Court majority is designed to undermine the ability of communities of color all across this country to elect their candidate of choice. That's good. That's the kind of ruling I like. This is not the only radical, far reaching decision to come from this right leaning bench. So is the United States Supreme Court wholly owned by Donald Trump. I'm Jonathan Friedland, Columnist at The Guardian, and this is Politics Weekly America . This week I'm delighted to welcome back to the podcast Professor Leah Littman. She's a professor of law at the University of Michigan. And she co-hosts the crooked media podcast Strict Scrutiny. She is also the author of a book, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Leo, really good to have you back with us on the podcast. I want to get straight into this decision, this judgment from the Supreme Court, uh Louisiana versus Calais. What exactly did the Supreme Court decide in this case? Louisiana versus Calais is honestly the most significant voting rights case that the Supreme Court has issued in decades, if not more than a century. So in this decision, the court nullified what remains of the Voting Rights Act. The Voting Rights Act has always had a nationwide ban on racial discrimination in voting. And part of the ban on racial discrimination in voting included some amendments that Congress added in 1982 that made it illegal for states to create policies or draw districts that had the effect of disadvantaging voters of color. That is not just policies that were intentionally designed to disadvantage voters of color, but policies that had the effect of doing so. And in Louisiana, just so that people get the the s the importance of the Voting Rights Act, sorry to cut you off, but that is a sort of iconic, totemic piece of legislation from the era of the civil rights struggles of the nineteen sixties that are so well known and well documented. Yes, the voting Rights act of 1965 was the crown jewel of the civil rights movement. It is what made the United States into a multiracial democracy rather than an apartheid state. Before the Voting Rights Act, voter registration rates, you know, among black Americans in the South were in the single digits. After the Voting Rights Act, that blows up to more than 50%. You know, before the Voting Rights Act, there was something like a total of 70 some black officials at any state, local, or federal level in the country. After the Voting Rights Act, you know, this reaches thousands. Um, so the Voting Rights Act truly transformed the United States into a multiracial democracy. What the Supreme Court said in Louisiana versus Calais is, so long as a state is drawing districting maps that is dividing up the state into units, each of which elect their own official, and it's doing that for partisan reasons to advantage to the Republican Party, it doesn't matter if that has the effect of disadvantaging black voters. That effectively legalizes racial gerrymandering in a world where racial communities tend to prefer one political party rather than another. To quote the uh author of the majority opinion, Justice Samuel Alito, you know, vying with Clarence Thomas to be the most right-leaning member of the bench. He said allowing race to play any part in government decision making represents a departure from the constitutional rule that applies in almost every other context. Colorblind racial equality. Just explain to people why this all is not what it appears here and that th the logic is not what uh Alito is sort of presenting it as a colorblind constitutionalism basically, it takes the logic of the Supreme Court's cases on affirmative action and puts it into voting rights. So people might be familiar with the affirmative action case law. There, the Supreme Court said it's actually racial discrimination for schools or employers to try to create racially diverse institu tions and consider race as a way of doing so. They said that's actually racial discrimination. Even when you're not trying to exclude people, you' trreying to build a diverse institution. And the Supreme Court said the same thing about the Voting Rights Act in Louisiana versus Calais. They said it's actually racial discrimination to require states to try to ensure that voters of different races are all represented, that they all have political opportunities to elect the candidate of their choice. So John Stewart, you know, the host of the Daily Show, one of the hosts of The Daily Show, referred to this as the whoever smelt it dealt it theory of racism, basically saying that it's actually racism if you try to address, fix, or prevent racism. It's not racism if you're actually doing a racism and drawing a set of legislative districts that just so happen to lock out black voters from political power and ensure that white voters in a given state are always in the political majority and get to elect the entire congressional delegation from a state where perhaps a third of the population is black. So you could have a situation where Lou Louisiana sends an all-white delegation to Washington, D.C. representing a state that, as you said, is very much more diverse than that representation would suggest. On Wednesday, the Chief Justice of the Supreme Court, John Roberts, um, conservative, but some people have seen him as somebody who is persuadable, occasionally as a swing vote. He tried to push back against the idea that the Supreme Court has become a partisan body, a kind of extended arm of Donald Trump's Republican Party, even of the MAGA movement. He said, I think at a very basic level people think we're making policy decisions that we're saying we think this is what things should be, as opposed to this is what the law provides. So his argument is just we are enforcing interpreting the law. Critics are then saying, okay, we accept that's your reasoning. In which case, if it was purely doing just the law, not no politics . How can it be justified or explained that this particular ruling, Louisiana versus Calais, just so happened to come down and apply to kick in ahead of the normal schedule of of judges There are two aspects to the timing that I think underscore the brazen hypocrisy and partisanship of what the Supreme Court is doing. One is this thing that's called the Purcell doctrine. And the Supreme Court has invoked this doctrine, the Purcell doctrine, and it says that doctrine stands for the idea that federal courts can't interfere with or change the rules governing an election too close to an election. That is, even if the election rules are illegal, federal courts just can't do anything about it when it's too close to Exactly. Now all of a sudden it's April, May 2026, and the actual midterms are a few months away. Primaries were supposed to start, already did start in Louisiana, and yet the Supreme Court said, nope, totally fine. We're gonna say Louisiana maps, your maps are illegal and you can't use them in this election. Doesn't matter that the election is underway. So that's one aspect of hypocrisy. The second aspect is what you I think we're referring to, which is the judgment rule. So instead of waiting the usual more than 30 days to certify the judgment in Louisiana versus Calais, the court issued it in less than a week after it issued the opinion. And it did so in a way that basically legitimizes Louisiana and other states push to engage in this last-minute chaotic redistricting in the midst of an election on the eve of an election. So they departed from their usual rules and doctrine in at least two different ways, in ways that again just show the brazen partisanship and hypocrisy of the court. Yeah. And just in case people think this is a sort of academic debate Take the House, currently held by a razor thin margin by the Republicans, in any normal year it would fall to the Democrats, even in quite big ways, they would sweep control of the House. Should Democrats be can now concerned that their hope , their assumption that they would win the House, could now be upturned, upended by this judgment and what may follow from it, so that thanks to those judges on the Supreme Court, six to three, uh, Democrats may not win the House come November. The Supreme Court definitely made it a lot harder for the Democratic Party to win the House, both in twenty twenty six and also after, as I was saying, you know, when it potentially more states will attempt to redistrict. Uh, the way I would put it concretely is there are estimates that in light of Louisiana versus Calais, states could maybe will attempt to redraw somewhere between 15 to 75 districts that would otherwise enjoy voting rights act protections. That is almost 20% of Congress. So that would allow the Republican Party again to redraw the maps that basically lock their power into 20% of the House above and beyond what it is now. So this has huge stakes for political power in the United States, who gets to have political power, and whether and how elections actually reflect the will of the voters. Yeah. And this judgment obviously will send a message to Republican legislatures, get get busy redrawing maps because that's the Supreme Court will allow it. And they also do know that the president wants it. And there was uh you know, just a really it's it you know, g could be unnoticed, but it's significant development on that. In Indiana, Republicans there had held the line and not changed maps there. They didn't want to, even though there was big pressure from Donald Trump to do it. There were primaries in the state of Indiana this week, and those people who were, as it were, disloyal to Trump and who did not comply with his demands found themselves turfed out of their state senate seats and so on. Now Republicans are going to know what they're want what their president wants them to do and what the Supreme Court is allowing them to do. Yes. Um I think that that's exactly right. So um that is the implications of this big judgment, but Louisiana versus Calais was not the only controversial decision to come from the highest court in the United States during this legislative session, and it may not be the last. We'll have more on that after this break. I'm Kai Wright. I'm Carrie Sherman. And we are here to tell you about our new show, which is rooted in this feeling that at least I have, I know you have, where, you know, it's kind of like when you wake up in the morning and you pick up your phone and you're just hit in the face with a fire hose of news, right? Like there's war, there's authoritarianism, our planet is learning. I could go on and on and on. On and on and on, but like we're trying to figure out how to manage it, right? Like how do you manage it? I manage it by leaning in and trying to learn more and trying to figure out, okay, how can I be smarter about this particular topic and who can I talk to that's going to make me feel better about it. And who can tell me who's responsible for the mess that I'm reading about. So that's our mission. That's the show. Welcome to State Side with Kai and Carter. We're a new show from The Garden. We're talking to big thinkers and the best journalists, just trying to understand the world through smart conversation and honest reporting. We don't have billionaires telling us what to say. Stateside with Kai and Carter will come out three times a week, Mondayday, Wednes, and Friday starting May 13th. Follow on Apple Podcasts or catch us wherever you watch or listen. I'm back with Leah Littman. Leah, when we spoke to you back on the podcast in October, um before this session, this uh session of uh the court kicked off, you highlighted a case that I'm not sure had made many headlines around the world surrounding the very controversial subject of so called conversion therapy and that you were worried about. So we're just gonna run through some of these big judgments the court has made in this session. Just explain to us what that case was, which you flagged up then last uh autumn and what the court eventually decided. So the conversion therapy case was a challenge to a Colorado statute that said licensed mental health professionals, you know, therapists, psychologists, psychiatrists cannot perform what's called conversion therapy, where they attempt to counsel someone to deny their sexual orientation or to deny their gender identity. So for example, you know, if a gay client comes into a session, the therapist can't say, let me help you try to make yourself straight. So that's what the practice did. And what the Supreme Court held is they said the law just prohibits speech, words, what a therapist says to their client. And because it just regulated speech, the Supreme Court said it regulated speech based on its content, what the therapist said, and also the viewpoint, the viewpoint that the therapist expressed. And restrictions on speech that are based on content and viewpoint ordinarily are subjected to the most demanding standard of review, what's called strict scrutiny. And so the Supreme Court said this conversion therapy ban has to be evaluated under strict scrutiny. Most laws that are subject to strict scrutiny end up being invalidated and declared unconstitutional. So they made it much harder to ban conversion therapy. I see. And they're using as it were free speech protections to to advance that case. I mean w w in this argument that the court is tilting ever further right, I mean you can't argue against that because they have a six to three majority, um the big sort of data point against it is the court's judgment on tariff policy, uh, where they took a position uh disappointing Donald Trump. Um tell us what that judgment was, uh what it means actually for for Trump and his economic policy. But w w where that leaves the argument about the I don't want to say bias, but the political inflection of this court. So in the terrorist case, the Supreme Court said that the president did not have the legal authority under the statutes that he had relied on to create his so-called reciprocal tariffs that attempted to respond to a trade deficit, as well as his punitive tariffs that attempted to penalize countries that he accused of basically participating in allowing drugs into the United States. So they said the statutes that you relied on to impose these tariffs don't actually give you the authority to impose those tariffs. Tariffs are illegal. You have to pay the money back you collected under the tariffs. So I agree with you, of course, that this is a ruling against the Trump administration and against a policy that Trump has really championed and indeed campaigned on. That being said, I think it would be a mistake to say this is an example of the Supreme Court being truly independent, non-political , apolitical, etc. Because in this case, the justices really faced ideological cross-pressure. You know, on one hand, of course, the case involved the Trump administration, who they ruled against. On the other hand, however, were the corporate interests and the business interests that hate tariffs. And of course, corporate interests, business interests are deeply connected with the Republican Party. Tariffs are wildly unpopular. So I don't think this is really a case where the justices show themselves independent of Republican politics or partisan views. Yeah. So it's not that they're not a right wing court, they're just a different flavor of right wing when it comes to this issue of international trade. I suppose it does make it a tiny bit harder to argue that it's particularly Trump loyal, because it was a responding to a different uh wing of yes, the right. Um we you and I talking at the start of May. This current session that's on is is due to end uh at the end of June. There is huge interest in one case in particular which seems to go right to a core b aspect of the constitution, almost definitional aspect of America, and that is the birthright citizenship case. Now, again, we did talk about this uh briefly in October. Bring us up to speed again what this case is and how you think and I know it's a r it's i you know it's often a sort of fool's error in this trying to see how the arguments landed, because the judges, you know, you can hear them, you can hear how they respond, the questions they ask. what From you've seen so far, how do you think the judges uh are uh approaching the arguments that have been put before them on this case? So birthright citizenship involves a challenge to the president's executive order . The first sentence of the fourteenth amendment says that all persons born and naturalized in the United States and subject to the jurisdiction thereof shall be citizens of the United States. And there's a federal statute that says the same. So first month of the Trump administration, the president signs an executive order that says actually some people who were born in the United States aren't citizens after all. Specifically any children who were born to parents without legal status in the United States , as well as children of parents who are here legally but only temporarily. This obviously flies in the face of the text of the 14th Amendment, binding Supreme Court precedent, long-standing history, you name it. So I at least am still confident that the court is going to invalidate this executive order. Um, but I don't think people should give the court too much credit when it does so. The reconstruction amendments, the amendments adopted in the wake of the Civil War include more than just the Fourteenth Amendment, whose first sentence confers birthright citizenship. They also include the 15th Amendment, which prohibits discrimination in voting on the basis of race, and the second sentence of the 15th Amendment, or the second section of the 15th Amendment says Congress shall have the power to enforce this legislation. And in Louisiana versus Calais, the Supreme Court said, actually, the 15th Amendment gives Congress only limited authority. So yes, I think the Supreme Court probably will end up preserving the first sentence of the 14th Amendment, but it will have done so in the same term that it viti ated the 15th Amendment and the project of reconstruction that promised a multi-racial democ Because it goes to the heart of uh really a core American idea, um, that you know, once you were there and what if you subscribe to the ideals of the country, you belonged rather no matter your heritage and your ethnicity and so on. Um, what if you were born in the United States, you were the same as anybody else born in the United States. This does seem to uh go really to the heart of something definitional of the United States. It was quite striking that um on that day when they were hearing those arguments, Donald Trump himself turned up at the court. Something no president, as I understand it, had ever done before, part of the separation of powers is even just physically a president would n't appear at the Supreme Court? He did that. A few people drew parallels with a key moment in the movie Godf The Godfather Part Two, where a uh sort of mafia man is about to give testimony aga inst the Corleone's uh his brother appears in the courtroom as if to stare him out and intimidate him. B you know, that it's very tempting to think that's what Donald Trump was trying to do to psych out those judges. What's your reading of why Donald Trump turned up in court that day? You know, I really don't know. It's possible he was trying to psych them out. Um I don't think that worked. Um I don't think it would work. Um, you know, I think he definitely made it more of a clown show just by being there. Um, you know, including all of his subsequent true social posts and commentary about the oral argument. So I don't exactly know what he was trying to accomplish. Maybe he was just trying to signal to the justices that this was one of the more important cases to him. You know, it's not like he really does anything as president besides posting on social media and, you know, signing hateful executive orders. So unlike other presidents, you know, he had the time just to go to at least the first part of the oral argument in the case. He of course left as soon as the woman of color arguing against his policy, you know, began speaking. Aaron Powell Just taking everything uh into uh pulling it all together, taking everything we've discussed into account, and thinking back to our conversation uh in the autumn, do you think the Supreme Court can still say it is the institution safeguarding parties ruling America . So I think the Supreme Court has never been great at enforcing the Constitution, protecting the rights of historically disadvantaged groups, you know, against the political majority, against the current state of societal opinion in electoral politics. But I think in recent years, the Supreme Court has become an increasingly partisan institution in addition to an ideological one, because you can just now predict the votes of the justices in so many of these big high-profile cases with significant stakes for the country, significant stakes for who gets political power that touch on issues that you know are related to the culture war. You can just predict how they're gonna vote based on the party of the president that appointed them. Um and their behavior, again, just belies any kind of consistent legal principle or neutral gener,ally applicable principle. So yes, I think the court has just made clear it is now a partisan institution. And I think that has to provoke some real rethinking about, you know, how American constitutional democracy should view the role of the Supreme Court and how much power it should allow the court to exercise. Uh and ask about the Supreme Court because it made another judgment this week which on its face you would again think cuts against the image that we've both been diving into here about the court. Why did the bench this week, step in to protect so-called male order abortion pills. So a few years ago, the Supreme Court heard another case about medication abortion, specifically mifepristone, one of the two drugs that is used in the currently medically approved recommended protocol for medication abortion. And in that previous case, a group of anti abortion doctors and dentists had challenged the availability of myfopristone and the guidance on when mifepristone can be prescribed, saying that it injured them. And in that case, the Supreme Court said, You're not the right plaintiffs to bring this case because you haven't shown that the availability of mifepristone injures you. So this latest case involves an effort by a different kind of plaintiff to now challenge Mifepristone, and that's a state. So this involves the state of Louisiana, who has stepped in to argue that it injures them for the FDA to allow doctors to prescribe miphopristone by telemedicine or telehealth because that makes it easier for women living in Louisiana, a state with an abortion ban, to nonetheless obtain abortion because they can do so online and over the meal. So a lower court, the Fifth Circuit, determined that the state is correct. So the only thing that the Supreme Court did the week of May 4th is issue what's called an administrative stay . The real stay is the decision about whether the court is going to put on hold a lower court decision until the Supreme Court has the opportunity to finally weigh in. So this administrative stay just bought the court time to decide whether to issue a stay at all. The Trump FDA has announced it is beginning a review of Mifepristone, but it said that back in 2025. It's drawn this out now over the course of a year, and they just show no signs of wanting to commit to anything before the midterms. So I think that the Republican Party Trump administration has signaled: look, we just don't want this on our plates right now. Here too I think there are going to be competing impulses that the justices are going to have to consider. So don't overinterpret it it's a administrat ive move and one actually that if anything perhaps helps the Republicans just with the political timing. Thanks for having me. And that is all from me this week. Before I go, I did want to tell you all about a new video podcast that our New York office is launching. It's called States ide with Kai and Carter, hosted by our colleagues Kai Wright and Carter Sherman. Each week. They're going to be trying to make sense of some of the biggest stories happening right now. The show will feature conversations with some of the smartest thinkers and reporters, and not just from The Guardian, but across the world. It's launching on May the 13th with episodes every Monday, Wednesday and Friday. And you can find it in full video on YouTube and wherever you get your podcasts. And a call out for us. If you have a question about the midterms or the war with Iran or the Epstein files or anything that you would like us to tackle over the coming few weeks, please do send them in to politicsweekly america at thegardian.com. That's politicsweekly america. One word, no dots. Politicsweekly america at theguardian.com. We'll aim to tackle those as soon as But for now, it's goodbye. The producer is Danielle Stevens, and the executive producer, Maz Eptahaj. I'm Jonathan Friedland. Thanks as always for listening . This is the Guardian .