After Roe was overturned, anti-abortion activists funded by right-wing billionaires got right to work - constructing and funding a lawsuit that would go after Mifepristone, a pill that is used in nearly two-thirds of abortions in the United States. The Supreme Court of the United States is now on the cusp of a decision that could decide the future of the medication. The case is FDA v. the Alliance for Hippocratic Medicine.
In the first episode of this limited series, hosted by Lisa Graves, Grave Injustice charts the path of this case to the high court and uncovers the actors and groups behind the scenes that manufactured it and what else they have in mind.
You’ll hear from:
Grave Injustice is a production of COURIER and Court Accountability. Our show is produced by Devin Moroney, written by Jared Downing, and supervised by RC Di Mezzo with support from COURIER’s Kyle Tharp, Danielle Strasburger, and Lucy Ritzmann. Original music is by Via Mardot. Danielle DelPlato created the show’s cover art.
Links to subscribe to the newsletters promoted in the ad breaks: Stop The Presses, FWIW.
Subscribe to this limited series wherever you get your podcasts including Apple and Spotify.
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After Roe was overturned, anti-abortion activists funded by right-wing billionaires got right to work - constructing and funding a lawsuit that would go after Mifepristone, a pill that is used in nearly two-thirds of abortions in the United States. The Supreme Court of the United States is now on the cusp of a decision that could decide the future of the medication. The case is FDA v. the Alliance for Hippocratic Medicine.
In the first episode of this limited series, hosted by Lisa Graves, Grave Injustice charts the path of this case to the high court and uncovers the actors and groups behind the scenes that manufactured it and what else they have in mind.
You’ll hear from:
Grave Injustice is a production of COURIER and Court Accountability. Our show is produced by Devin Moroney, written by Jared Downing, and supervised by RC Di Mezzo with support from COURIER’s Kyle Tharp, Danielle Strasburger, and Lucy Ritzmann. Original music is by Via Mardot. Danielle DelPlato created the show’s cover art.
Links to subscribe to the newsletters promoted in the ad breaks: Stop The Presses, FWIW.
Subscribe to this limited series wherever you get your podcasts including Apple and Spotify.
Follow COURIER on Instagram, TikTok, Threads, Facebook, and Twitter/X.
You can find out more about COURIER at couriernewsroom.com
Lisa Graves: [00:00:00] For many abortion seekers, abortion pills are a game changer. For one, they're a solution for abortion seekers in the more than 20 states that have banned or restricted abortion access. Patients can get pills by mail or drive across state lines to get pills legally. Even for people in blue states who live in rural areas, access to the care they need is more readily available with abortion pills.
And for women who need to be especially discreet, maybe they're in an abusive relationship or they fear community backlash or having to deal with protests at a clinic, access to these abortion pills is a lifeline. Medication abortions account for more than half of all abortions. At least for now,
News Anchor: the future of abortion bills in the United States is in question with a lawsuit underway in Texas right now, a US district judge
Lisa Graves: in April of 2023.
A far right federal judge struck down FDA approval of mire stone, one of the two medications that are used [00:01:00] in most medication
News Anchor: tonight. Activists outraged over a Texas judge's ruling late Friday, suspending the FDA's approval of the abortion pill mire. Generically known as. Government lawyers contend taking the drug off the market would unravel reproductive care for women in the U.S.
Lisa Graves: A group of far right doctors had claimed it was rushed through the FDA approval process back in 2000 and was never proven to be safe, despite 20 years of research proving otherwise.
News Anchor: And here, one judge, all by his lonesome, has said, Now, I disagree with all of those experts. I don't think this drug should be on the market.
The Biden administration says it will appeal. New confusion today after another judge rules in favor of the pill. Will the Supreme Court
Lisa Graves: decide the issue? The case bounced around in appeals until finally, in December of last year, the U. S. Supreme Court agreed to make a final ruling. Now, the question of whether a drug for medical abortions Something that has made abortions simple and accessible [00:02:00] for millions of Americans comes down to just nine people, six of whom were hand picked by Republican presidents under the guidance of rich, powerful right wing activists.
The case comes two years after that right wing majority on the U. S. Supreme Court helped overturn Roe vs. Wade, and with it, nearly 50 years of legal precedent providing federal constitutional protections for abortion. But abortion isn't their only target. This court is issuing rulings that are stifling progress.
And even worse, turning back the clock, restricting long held freedoms. The court blocked one of President Biden's student debt relief efforts. It gutted key protections for Americans right to vote, unleashing a wave of voter suppression legislation in states where Republicans were eager to make it harder for Americans to vote.
So what is next? What can we expect from these right wing operatives cloaked in judicial robes and the networks at work to serve them up [00:03:00] cases that will expedite this regressive and repressive agenda. This is Grave Injustice, a new podcast series from Courier. I'm Lisa Graves, and I'm a lawyer and researcher who has helped uncover the powerful people distorting our constitution to impose their personal religious views as binding law on other Americans.
My work shines a light on billionaires. who have targeted the courts to capture the law and rewrite the rules. I also help expose the groups manufacturing cases to bring to the U. S. Supreme Court to advance this extreme agenda. This series is going to dive deeply into the big issues the U. S. Supreme Court has hand picked for decision this year and what they mean for this extreme right wing program to use the courts and use the law to enact the Republican Party's agenda for America.
Sarah Lipton-Lubet: It's not the culmination, it's just the beginning of an even more intensive phase. Now that all of this legal infrastructure has [00:04:00] been put in place.
Lauren Jacobson: You know, you kick the door open a little bit, and then it's like, what hallway do they choose to walk down?
Lisa Graves: Up next. Hi,
Mark Jacob: it's Mark Jacob. I'm a former Metro editor of the Chicago Tribune and former Sunday editor of the Chicago Sun Times. Today I'm the author of Stop the Presses, a weekly newsletter from Courier about how right wing extremism has exploited the weaknesses in American society. and journalism and also what journalists in you can do about it.
As a lifelong journalist, I couldn't stay silent as bad actors in politics game the system while others in my profession turn a blind eye. So every week I'm holding the news media accountable and encouraging us all to be more than fact checkers. We must be fact crusaders. Make sure you're subscribed to receive my newsletter every [00:05:00] Monday.
You can subscribe at stop the presses dot news. That's one word. Stop the presses dot news. Or at the link in our show notes. Thanks a lot.
Lisa Graves: Before Beck sat down to talk with me about her two abortions, she needed to find something to do with her hands.
Bex: Okay. I'm back. I realized I had nothing to doodle with and I'm a doodler.
Lisa Graves: Oh, that's good. You know, I have tops over here. I spin tops on conference calls. They're
Bex: like, they're like, um, like vidget things.
Lisa Graves: No, they're actual, uh, old school tops. Let me see if I can, I moved them the other day. Cause. They were distracting me, but I've got a whole, whole container of pops. Oh my gosh,
Bex: I would not be, that's like too much for me.
I would not be paying attention to what's going on. I would be like so invested, like maybe even counting how long it's been.
Lisa Graves: Small details are important to Bex. She notices things. And the details are what made her first abortion, I don't want to speak for her and call it traumatic, but it was pretty clearly an overwhelming experience.
Bex: So like immediately it just kind of feels a little, it felt a little intense for [00:06:00] me. I don't know about like feeling unsafe, but I was just like, whoa, this was
Lisa Graves: unexpected. For context, she had her first abortion in 2017 in Texas, where she's from. It was a surgical procedure. It wasn't an easy process. For starters, Bex was broke.
Also, the clinic was an hour and a half drive from her house, and she had to go twice, first for an ultrasound, and then for the procedure itself. But it was the little things that made the procedure so ghoulish.
Bex: I walked in the building, there's like, you know, metal detectors, and you have to take everything out of your pockets, and they like, check your IDs.
It's like, not, also not like a normal routine thing for healthcare, um, to be like, Someone with a gun is like asking for your ID when you walk through the
Lisa Graves: door. Then there was the sterile, uninviting medicalness of the whole place.
Bex: I grew up, um, homeschooled, so I didn't go to school, which also meant we didn't really have to go to the doctor.
So [00:07:00] I think that I still have like really, um, extreme feelings of discomfort in a lot of medical settings. They weren't like a routine thing for me growing up. So whenever I went, it was like something really bad happened or I just feel really uncomfortable. I would say in like most medical settings,
Lisa Graves: she had to listen to the fetal circulatory system and they also made her look at the ultrasound display
Bex: because of regulations.
You had to have an ultrasound, you had to listen to the like heartbeat. cardiac activity. They actually made me look at the screen. And then two days later I came back. And that was after waiting three weeks from the time I called asking for an appointment. You know, so there was a lot of travel involved, which just kind of like added
Lisa Graves: to the
Bex: stress
Lisa Graves: level, like logistics.
Bex's next abortion last year was a lot better. She caught the pregnancy early. She was more informed and medication abortions were more accessible. She literally took a day off, took her pills, and that was that.
Bex: It felt [00:08:00] simple. It felt straightforward. Very uneventful. Like, in a way, it was like, very nice that it was private and at home.
It was very important to me to be able to do it myself and to not have to go into, like, a medical facility.
Lisa Graves: Whether to take an abortion medication, Mifeprestone, off the market in all 50 states will be the Supreme Court's first abortion decision since it overturned Roe v. Wade in the summer of 2022. That case, of course, was Dobbs v.
Jackson Women's Health Organization, or just Dobbs for short. I'll try not to swamp you with case names and legalese, but the upshot is that with Dobbs, the Supreme Court decided that abortion access isn't a right. It was a moment many red states had been waiting for. Several had trigger bans. That is, anti abortion legislation set to spring into effect the moment the Supreme Court overturned Roe.
Since the ruling, 21 states have restricted abortion beyond what [00:09:00] the Roe vs. Wade standard would have allowed. 14 have banned it outright. What has this meant for women in America? To find out, I spoke with an abortion provider.
Lauren Jacobson: My name is Lauren Jacobson. I'm a women's health nurse practitioner, and I work as an abortion provider for Aid Access.
Lisa Graves: Aid Access mails pills for medication abortion to women throughout the U. S., and since Dobbs, demand has skyrocketed.
Lauren Jacobson: Right now, 50 percent of all of our pills are going into Texas. So, just for context, um, Yeah, and I'm sending 30 to 50 packages a day total, and there's about 10 of us now, so if you do the math there, it's a lot.
Lisa Graves: Lauren says her clients in states like Texas are nervous, not just because they now need to outsource their abortion in distant states, but also because they just don't know what's going to happen next.
Lauren Jacobson: There's a lot of fear. Because some people don't know what can happen to them. You know, we see people who are four weeks pregnant.
We see people who are 12 weeks, five days. You see this whole [00:10:00] spectrum. So some people, I think, are more, and this is anecdotal, are more aware of You know their bodies and if they're pregnant and they're testing quicker and then they're just like got to get the pills as soon as possible because I'm in a restricted state, but then there's also people who of course know what's going on and they're afraid and so they wait longer
Lisa Graves: last year that aforementioned Texas judge.
ruled to strike down FDA approval for Mifepristone, which is one of two pills used in the most reliable medication abortion method. The plaintiffs in that case were a group of anti abortion doctors who call themselves the Alliance for Hippocratic Medicine. They claim that Mifepristone was rammed through the FDA approval process back in 2000 and was never proven to be safe.
That claim is, of course, bullshit. Mifepristone is safe. A paper in the Stanford Law Review pointed out that after 20 years on the market, Mifepristone is, quote, one of the most studied drugs [00:11:00] available, end quote, and is safer than penicillin and Viagra, and 14 times safer than childbirth.
Lauren Jacobson: It's just crazy to me that a pill that was FDA approved, like, what, 23 years ago, is suddenly just, people are deciding, Oh no, we're gonna say it's no longer, uh, safe.
Based on absolutely no evidence. I mean, it's incredibly safe comparatively to like, as you know, Tylenol, Viagra, the potential risks or complications are less with Mifepristone.
Lisa Graves: Renee Bracey Sherman agrees. She's the founder of We Testify, an abortion advocacy group. She also co hosts the podcast, The A Files, A Secret History of Abortion.
It's like
Renee Bracey Sherman: settled science. We, this pill has been around globally since 1988. It's been in the United States since 2000. It's widely available. Mifepristone is one of the safest medications that we have, right? But that is being put into question on purpose by people who [00:12:00] want to sow this distrust and, and miscommunication and confusion.
Who
Lisa Graves: exactly are these people sowing miscommunication and confusion? In this case, they have a name, Alliance Defending Freedom.
ADF Promo Tape: Wherever human freedom is under attack. We stand ready to defend it, both at home and around the world, in courtrooms, legislatures, and the public square. You'll find us on the front lines.
Lisa Graves: Architect the Dobbs case and overturn Roe v. Wade. They're also bent on overturning same sex marriage and restricting trans rights. The Southern Poverty Law Center is called ADF, an anti LGBTQ hate group. They have strong ties to Washington, including to Amy Coney Barrett. who spoke at ADF backed events before she became a justice on the U.
S. Supreme Court.
Paul Weyrich: Louisville wedding photographer has won her [00:13:00] federal lawsuit.
Lauren Jacobson: We must protect Title IX and women's sports for the next generation. One powerful Christian legal organization has been planning a strategy to overturn Roe v. Wade. Their plan worked.
ADF Promo Tape: ADF is one team, a part of a broader alliance.
We are Christ centered. We are committed to victory.
Lisa Graves: ADF helped launch the Alliance for Hippocratic Medicine in 2022 in Amarillo, Texas. Why Amarillo? Because that was the home of this one Trump appointed judge named Matthew Kaczmarek in the District Court of Northern Texas. Matthew Kaczmarek backed Trump's harsh immigration policies, shot down the Biden administration's protection for LGBTQ plus workers, and has been an outspoken anti abortionist before he took the bench.
If anyone was going to ignore the science and ban the abortion pill, it was going to be this guy. So they're judge shopping.
Renee Bracey Sherman: Like, that's what that is. There's not a question about the science here. There's [00:14:00] not a question about, you know, what the American public wants. There's not a question about, ah, do four out of five doctors believe this?
We don't know. There's no question there. What they're doing is judge shopping for any sort of decision that they want. The
Lisa Graves: lower federal courts have spent the last year bickering over Matthew Kasner's ruling. Another U. S. district judge in Washington state ordered the FDA to leave Mifepristone on the market.
For Later, the U. S. Court of Appeals for the Fifth Circuit, which includes Texas, ruled that while Mifepristone could stay on the market, it reinstated old regulations that required women to obtain a prescription and pick up the pills in person. So no more getting pills by mail from providers like Lauren Jacobson.
Finally, in December, the U. S. Supreme Court agreed to make a final call. They might side against both Kasemiric and the Fifth Circuit and leave Mifepristone as it was. They might uphold the old regulations and make the pill harder to get. Or they might just ban it for everyone, in every state. Even if the [00:15:00] worst happens, there is still another abortion pill on the market.
It's called misoprostol, which was technically approved as a medicine for stomach ulcers, not an abortifacient, making it much harder for the likes of ADF and Casimiric to target. It's still effective when used on its own, but less so. Right now, the far right agenda isn't about huge victories. The game plan isn't to wipe out abortion access in one fell swoop.
It's about the little things, making it that much harder for people to obtain medical abortions, sowing that much confusion and misinformation about their options, setting a precedent for revoking FDA approval so that maybe, next time, they can go after a stomach ulcer medication, or surgical abortions, or even contraception.
Renee Bracey Sherman: If they can't get it over, like get the pill off the market altogether, which is their ultimate goal, um, they then want to make it as inaccessible as possible because most, it's more than half of abortions are now done with the [00:16:00] pill. People are able to self manage it on their own and they don't have to travel out of state to go to a clinic.
Right? There are tele meds, places where you can order the pills online. There's so many ways to get it. And that is what they're scared of. They're scared of this, this freedom and this liberation, because they know they can't then shame people outside of clinics.
Lauren Jacobson: People still access abortion pills up to 13 weeks.
They just use the misoprostol only regimen. I mean, it's still an option. It's just, why do that? When you have a safer, safer. more effective method. Why would we go that route? Like, stop saying it's about safety. It's not. You're actually making it less safe. And you know that. This isn't about safety. This isn't about children.
If it was about pro life and protecting children, and safety, the, the same people would be the ones fighting for, you know, health insurance for everyone, for, um, More, uh, equality, you know, school safety. This is about controlling people [00:17:00] and pushing a, quote, pro life or anti abortion agenda that just restricts people who have uteruses, bodily autonomy.
It's a human rights violation.
Lisa Graves: And in Roe, the Supreme Court basically agreed. The 14th Amendment, which was ratified in 1868, says that no state shall, quote, deprive any person of life, liberty, or property without due process of law. In Roe v. Wade, the court decided that liberty included choosing whether or not to carry a pregnancy to term.
But in the Dobbs decision, Justice Alito said that because the Constitution makes no mention of abortion specifically, and, quote, until the latter part of the 20th century, such a right was entirely unknown in American law, that, quoting again, the 14th Amendment clearly does not protect the right to an abortion.
He went on to say that the laws and culture of the time indicated that abortion would not have been protected, and he admonished previous rulings saying, quote, Roe either ignored or misstated this history. But the justices aren't [00:18:00] historians, and in fact most historians disagree with that majority opinion.
Mary Ruth Ziegler: So the first thing I think to observe about Dobbs is that Dobbs is asserting that this is the history without acknowledging that there's a scholarly consensus to the contrary.
Lisa Graves: Mary Ziegler is the Martin Luther King Jr. professor of law at the University of California Davis. She is a legal historian with a focus on abortion.
She's written six books on the subject.
Mary Ruth Ziegler: In terms of what the consensus position is, it's that abortion before quickening, which is again, the point at which movement could be detected in the womb, wasn't broadly criminalized until later in the 19th century.
Lisa Graves: She said historians agree that there was a kind of moral consensus that abortion was wrong, but people still had them.
Plus, what exactly abortion meant was a vague concept.
Mary Ruth Ziegler: It's also worth emphasizing that this was a time period where the line between birth control, abortion, and regulation of your menstrual period wouldn't have been very easy to draw. [00:19:00] You would have, uh, you know, home health guides and women talking about regulating your period, keeping your period regular.
Some of that was probably people taking abortifacients.
Lisa Graves: Thus, among actual historians, the Dobbs position that in the 19th century abortion was roundly condemned both in culture and law is a minority position at best.
Mary Ruth Ziegler: So the consensus is disputed, but it's remarkable to have, you know, the court. take up what's a quite strikingly minority position taken primarily by people who are not professional historians without acknowledging that there's any real question or contested issue at hand, right?
So
Lisa Graves: what about modern times? If in the 19th century neither American law nor American culture were really unified on the abortion issue, what changed? How did abortion become this singular, galvanizing issue for the religious right that has spawned powerful religious actors like ADF? To find out, I called a preacher's [00:20:00] kid.
My name is
Randall Balmer: Randall Ballmer. I'm the John Phillips Professor in Religion at UC Berkeley. Dartmouth College, also an Episcopal priest and, uh, generally a historian.
Lisa Graves: Randall Balmer is a former evangelical Christian. In fact, his father was a pastor.
Randall Balmer: I grew up in, in, within the evangelical subculture. I sometimes characterize myself as having a lover's quarrel with evangelicalism.
That is, it's a movement that nurtured me, and in many ways, for me, It has formed me in terms of my understanding of the world, my sense of morality. But it's a movement that has strayed far, far, far away from its roots in the embrace of far right political causes. And that to me is a, is a source of great sadness.
Lisa Graves: Evangelicalism is a Protestant Christian movement. It's what people usually have in mind when they talk about the Bible Belt. Among others, it includes a lot of Baptist, Presbyterian, and [00:21:00] Methodist organizations. I won't go into the specific tenets of the faith, because the theology has little to do with the politics the movement has taken up, like gun rights, LGBTQ, and most of all, abortion.
Randall Balmer: I've spent much of my career, or at least the last couple of decades of my career, trying to call evangelicals back to their better selves and trying to get them to re affiliate with the best of their tradition. And you can see for yourself how successful I've been.
Lisa Graves: Evangelicals aren't the only Christians against abortion rights.
The Catholic Church, for example, has been fighting abortion longer than anyone, but they've become the standard bearer for the movement. That far right interest group, ADF, for example, was founded by evangelicals. The standard narrative is that the Roe vs. Wade decision in 1973 filled evangelicals with righteous anger, calling them to join their Catholic brethren to protect unborn babies.
But Randall says that's not what really happened.
Randall Balmer: Evangelicals throughout the 1970s regarded abortion as a Catholic issue. When the [00:22:00] decision itself was handed down, several prominent evangelical leaders issued statements applauding the Roe v. Wade decision as marking an appropriate distinction between personal morality and public policy.
So that's why I call it the abortion myth. The abortion myth is the fiction that evangelicals mobilized politically in the 1970s in response to Roe v. Wade.
Lisa Graves: Evangelicals as a community weren't even that political, choosing to quote, render unto Caesar the things that are Caesar's. quoting St. Matthew. In fact, Randall says a lot of the evangelicals he knew didn't even bother to vote.
Randall Balmer: Many of the people I knew in my world growing up, which was, you know, really almost entirely evangelical, uh, were not even registered to vote. And so roughly from the end of the Scopes trial back in 1925 until Jimmy Carter's campaign for the presidency in 1975, this demographic was not a political [00:23:00] force.
Lisa Graves: That didn't stop evangelical activists and interest groups from trying to mobilize evangelical voters. One of those activists was a guy named Paul Weirich.
Randall Balmer: They sometimes call him the evil genius, and he's the person who really galvanizes this population into a political movement.
Paul Weyrich: I suppose the more important thing that I did was to bring together the What is now known as the religious right.
Those people were not active in politics and I served as sort of a coach to get them active in the political process.
Lisa Graves: Paul Weyrich wasn't actually an evangelical or even a Protestant. He was a Catholic from Wisconsin who served as a press secretary for a Republican governor of Colorado in the 1960s.
He ended up befriending Joseph Coors, the heir to the Coors Brewing Company, whom he convinced to fund his special interest group, particularly the one called [00:24:00] the Heritage Foundation.
Randall Balmer: And he did two things which were very, very savvy, and I have to tip my hat to him because he was really quite a master strategist.
Lisa Graves: In the 1970s, Weyrich and his allies convinced Bible Belt evangelicals that lifting the tax free status of so called segregation academies, that is private de facto segregated Christian schools, was supposedly an assault on religious freedom.
Randall Balmer: And he told me that ever since the Goldwater campaign in 1964, he had been trying to mobilize these evangelical voters.
And he said, I tried everything. I tried the abortion issue. I tried the, uh, women's equality issue. I tried the pornography issue. I tried, uh, school and prayer. Nothing got the attention of evangelicals until the IRS came after Bob Jones University and these various segregation academies.
Lisa Graves: It was a start.
But Weyrich needed something with staying power, something that could fuel a Christian political movement for years. And in 1978, he found it.
Randall Balmer: [00:25:00] The midterm elections of 1978 are really crucial to this narrative. And what happens, according to Weyrich, is that he went to the head of the Republican National Committee, Bill Brock, and he asked for money to help mobilize evangelical voters, whereupon Weyrich vowed to go out and elect some rather improbable people to the Senate in 1978.
Lisa Graves: Weyrich cherry picked four senators. Races to prove his case. One in New Hampshire and Iowa, and two in Minnesota. In each race, a Democrat was running against an anti-abortion Republican.
Randall Balmer: And what happens in those four Senate elections the final weekend of that campaign, pro-lifers. Roman Catholics leafleted church parking lots on the abortion issue.
And two days later, with a midterm election, very low turnout, all four of these Democratic Senate candidates lose to anti abortion Republicans.
Lisa Graves: Abortion would galvanize a new Christian [00:26:00] right. And over the next four decades, they would pull LGBTQ rights, guns, health care, sex education, and dozens of other issues.
Today, some of the new standard bearers for the Christian right include House Speaker Mike Johnson.
Mike Johnson: You better sit down any candidate who says they're going to run for legislature and say, I want to know what your worldview is. Okay. I want to know what you think about the Christian heritage of this country.
Marjorie Taylor Greene.
Marjorie Taylor Greene: We need to be the party of nationalism and I'm a Christian and I say it proudly. We should be Christian nationalists.
Lisa Graves: Mike Johnson.
Mike Pence: Just have faith that he who placed this miracle of democracy on these wilderness shores will still surely bless America if we will just turn our hearts to him.
Lisa Graves: And somehow this guy became an almost Christlike figure for the movement.
Donald Trump: Two Corinthians, right? Two Corinthians 3 17. That's the whole ball game where the spirit of the [00:27:00] Lord, right? Where the spirit of the Lord is. There is liberty and here there is Liberty College, but Liberty University. But
Lisa Graves: over the years, organizers of that movement expanded their network of billionaire donors and rich mega churches, which funded such organizations as the moral majority, focus on the family, the American center for law and justice.
And of course, the Alliance defending freedom up next. What's really going on?
Kyle Tharp: Hey, it's Kyle Tharp, and I'm the author of Courier's Newsletter For What It's Worth. For the past five years, I've been tracking the online information wars and the digital trends shaping our politics, delivering data and insights to over 20, 000 readers every Friday morning.
As this wild 2024 election cycle heats up, we all need to be paying attention to what's happening online. If you want to know more about the online forces impacting our politics, make sure you're subscribed at FWIW. news or at the link in our show notes.[00:28:00]
Lisa Graves: I should point out that most Americans are in favor of abortion rights. 60 percent of Americans said that abortion should be legal in some form. And since the Dobbs decision, eight states have passed ballot measures protecting abortion rights, or voted against ballot measures that would have limited them, including in Kansas.
News Anchor: Kansas
Lisa Graves: became
News Anchor: the first state to vote on abortion rights since the Supreme Court overturned Roe. Voters overwhelmingly rejected an anti abortion constitutional amendment. Remember, Kansas is a deep red state where there are far more Republicans than Democrats. And
Lisa Graves: in Kentucky, which re elected a governor who ran on a pro abortion platform.
Thus, the majority of the voting public, religious or not, is on the side of abortion rights. Anti abortion activists have always known this. Paul Weyrich actually claimed that the fewer Americans who voted, the better the chances were for right wing Christian candidates.
Paul Weyrich: How many of our Christians have what I call the goo [00:29:00] goo syndrome?
Good government. They want everybody to vote. Good government. I don't want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.
Lisa Graves: Here's Mary Ziegler again.
Mary Ruth Ziegler: Here it's helpful to sort of put yourself in the head of the people in the movement. So the people in this movement really see themselves as in similar ways to people who support abortion rights, which is to say. They support democracy, but they think that there are some rights that have to be protected in order for democracy to function, or some groups that need to be protected, and that those principles in some ways are more important than majority rule.
Lisa Graves: ADF and its ilk can fight abortion rights at the ballot box. There are still plenty of anti abortion voting states and districts. But it's an uphill battle. There is, however, an entire branch of [00:30:00] government that ordinary voters don't pick.
Donald Trump: We totally transformed the federal judiciary. We appointed nearly 300 judges.
Together, we withstood vicious attacks to confirm three great Supreme Court justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Lisa Graves: Federal judges serve for life. Get the right case before the right judge, like the Miffa Pristone case in Texas, and it doesn't matter how many of us believe in abortion rights, or how many pro choice senators there are, or whether the president is a Democrat, all you need to do is stack the courts.
And that's what the far right did. Donald Trump appointed 226 federal judges in his one term. Barack Obama, by contrast, was only able to get 320 judges confirmed over 8 years, and appointed only 55 appellate judges, just one more than Trump did. Trump managed to flip 13 appeals courts from liberal to conservative [00:31:00] majorities, and he appointed Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, one third of the Supreme Court, was handpicked by Trump.
In picking judges, Trump had help, of course, and among his advisers, one group stands out.
Federalist Society Promo Tape: The Federalist Society is a beacon of hope for conservative and libertarian lawyers.
Lisa Graves: The New Yorker has described the Federal Society, or FEDSOC, as a Rolodex for legal jobs around the country. It's a legal network for so called conservatives and libertarians, founded in the 1980s, ostensibly as a neutral forum for debate, but really as a kind of intellectual oasis for right wing law students.
Federalist Society Promo Tape: FEDSOC stands for both advocating for limited government principles, as well as the spirit of open debate.
Lisa Graves: FEDSOC members rose through the judicial system, bringing their own with them. Today, FEDSOC affiliated lawyers are everywhere. They work in the private sector, they work at
Lauren Jacobson: firms, they have a variety of different roles in the legal community.
Lisa Graves: [00:32:00] Six of the nine Supreme Court justices are current or former FEDSOC members, as were many of the ADF lawyers who helped architect the Dobbs case. The co chair of the Federal Society's Board of Directors is a guy named Leonard Leo.
News Anchor: Leonard Leo. He's possibly the most powerful person in America who almost no one knows about.
Lisa Graves: You're going to be hearing Leo's name a lot during this series.
News Anchor: Leo has referred to himself as a, quote, leader of the conservative legal movement, and he is not wrong. He's played a key role in putting all six of the current conservative justices
Lisa Graves: Leonard Leo was probably Trump's most influential advisor when selecting his judicial nominees.
When Trump took office, they worked together to make a list of potential nominees, Leo's List. When Justice Anthony Kennedy retired in 2018, Leo was the first one Trump called. He wanted to see who Leo had picked for him.
News Anchor: Can you share with us how this list came about and how you decide who should make the list?
Well, the list was the president's [00:33:00] idea.
Leonard Leo: It was a novel idea. I told him that. No one had ever done it before.
News Anchor: What did he say he was looking for?
Leonard Leo: Well, he was looking for three things. One, extraordinarily well qualified. Two, people who were, in his words, not weak. And thirdly, people who were going to interpret the Constitution the way the Framers meant it to be.
Lisa Graves: Leonard Leo was all but nominating the justices himself. Three people from the Leo list, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett, were nominated. would wind up with lifetime appointments on the U. S. Supreme Court.
News Anchor: Let me read this. This has been said about you. Quote, No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v.
Wade than the Federal Society's Leonard Leo. Do you believe with this pick, replacing Kennedy could finally be the nail in the coffin of abortion
Leonard Leo: rights? Roe v. Wade has been a, a scare tactic. That's gone back 36 years. I don't think people should be worried about Roe v. Wade or any other particular case.
News Anchor: The justice is saying, we hold that Roe and Casey must be [00:34:00] overruled. Americans need to know who Leonard Leo is. They need to know he is responsible for the right of women to choose being taken away for the first time in a half century.
Sarah Lipton-Lubet: What do we have is so many actors acting in concert. In order to tee up cases to what is now an incredibly reactionary U.
S. Supreme Court as opposed to a previously very conservative U. S. Supreme Court to fast track the rollback of so many rights and freedoms that We all thought we were guaranteed.
Lisa Graves: Sarah Lipton Lubet is president of Take Back the Court, a think tank with a mission to rebalance the courts after the Trump era.
She describes the way groups like ADF are leveraging a so called conservative court.
Sarah Lipton-Lubet: They have been really manufacturing plaintiffs in order to bring cases in federal court [00:35:00] that would move forward a conservative agenda. And when I say manufacture plaintiffs, I really mean manufacture plaintiffs, right?
They're making up plaintiffs. They're creating a Lawsuits out of of whole cloth.
Lisa Graves: Case in point, the Texas Mifa Prestone case, the plaintiff, the Alliance for Hippocratic Medicine, was formed for this specific lawsuit, specifically in Amarillo for this specific right wing judge, Matthew Kame. Kame, of course, was a Federal Society member when the case was appealed.
The appellate judge. James Seeho was also FedSoc.
Sarah Lipton-Lubet: So ADF makes up these cases, bundles them into conservative jurisdictions, that goes up to the incredibly reactionary U. S. court of appeals for the Fifth Circuit, which at this point is Lawless is an understatement. They're unhinged in their pursuit of a right wing agenda.
Lisa Graves: Now the case lies before a Supreme Court with a 6 3 right wing supermajority. Those six justices? [00:36:00] Fedsock, Fedsock, Fedsock, Fedsock, Fedsock, Fedsock.
Sarah Lipton-Lubet: And the thing about this strategy is, it doesn't have to work every time in order to have severe implications for the direction that our country goes in.
Even if only one or two succeed, it's hugely Hugely dramatic and devastating.
Lisa Graves: So let's recap for a second. For 40 years, religious interest groups and right wing legal networks have been building a kind of judicial machine, one that works more or less independently of the American voter. With Trump, It managed to stack the court greater than ever before, and in 2022 it finally took down Roe v.
Wade. But that machine is still humming along, and abortion pills aren't its only target. The next big goal for anti abortionists is full blown fetal personhood, which would mean a national abortion ban. Alabama has already made moves in that [00:37:00] direction. This year, the state Supreme Court ruled that frozen embryos are full fledged children, minor children, with all the 14th Amendment rights that come with that.
Even though the 14th Amendment specifies that rights begin at birth. Anyone born in the United States has these rights and privileges. But the state judges in Alabama cited Alito's Dobbs decision multiple times in their ruling. I
Mary Ruth Ziegler: think the endgame is fetal personhood, which would mean a national ban.
And then it's not really clear that the movement would be done then either, because the movement, as we mentioned earlier, is changing and moving in the direction of things beyond the single issue agenda.
Sarah Lipton-Lubet: Dobbs really only is the beginning, right? It's not the culmination of the rights attempt to control our Our autonomy, our, our dignity, what we do with our bodies, our families, our lives.
It's just the beginning of an even more intensive phase now that all of this legal infrastructure has been put in place by right wing actors [00:38:00] over decades.
Lisa Graves: So is there anything stopping the right wing judicial machine? For Renee Bracey Sherman, fighting back means changing the conversation.
Renee Bracey Sherman: What we do is we focus on solutions.
Supporting and elevating the stories and voices of people who have abortions so that they know they're not alone, that they're supported and that our voices do matter in this moment.
Lisa Graves: The website for her organization, We Testify, features the personal stories of dozens of people who have had abortions.
At the top of the screen, a banner reads, Need an abortion? Click here. They also sell t shirts that proclaim, I had an abortion. The idea is to chip away at the fear and stigma and normalize it.
Renee Bracey Sherman: I think for a long time, there's been this idea that abortion, it's, it's a fraught [00:39:00] issue. It's, you know, it's, it's broken. Our political system is so divided and it's actually just not true. It hasn't been. The country has supported abortion rights basically at the same level for the entire time.
Lisa Graves: For Sarah Lipton Lubet, it means exposing the right wing conspiracy for what it is.
Her organization, Take Back the Court, works to connect the dots on years of cases, rulings, lobbying, and legislation that shows exactly how the far right rigged the game.
Sarah Lipton-Lubet: The Supreme Court has been captured by right wing interests for decades. And all sorts of research and studies show that if we don't seriously reform the court, it's going to be held by Republicans for at least another 50 years.
That's 100 years of single party, minoritarian control of one of the three major branches of government. And that, that doesn't even sit in the [00:40:00] same ballpark as something you can call democracy.
Lisa Graves: For health workers like Lauren Jacobson and organizations like Aid Access, Fighting back means shipping abortion pills to anyone who needs them and making sure people have access to abortion by any means necessary, no matter what the donors, lawmakers, lawyers, and judges do to stop it.
Fortunately, for now, there is a second abortion pill, misoprostol, that aid access can provide even if mifepristone is banned. But how long until they find a way to ban that too?
Lauren Jacobson: My big fear is like, they go after some sort of contraceptive method. Like, you know, you kick the door open a little bit and then And then it's like, what hallway do they choose to walk down?
I'm sure it's going to be reproductive health. I hear so many people like friends, international friends who've watched The Handmaid's Tale and they're like, that's going to be America. America's turning into Gilead. And I'm like, yes,
Lisa Graves: that's how it feels. Will they move forward with this effort? How will the Christian right and groups like [00:41:00] ADF and the Federalist Society continue to kick the door open bit by bit on the judicial system?
As it happens, Leonard Leo himself outlined his vision. It's
Leonard Leo: really, really important that we flood the zone with cases that challenge misuse of the Constitution by the administrative state and by Congress.
Lisa Graves: Flood the zone with cases and bit by bit use the courts to bend the law to the right. This has already begun and it's already well beyond abortion.
Next time on Grave Injustice.
Ruth Glenn: I'm not the only one. Many, many survivors of domestic violence really had that first response of, What do you mean? We're just going to unprotect survivors of domestic violence.
Lisa Graves: The state of Texas forbade a convicted domestic abuser from having guns. After the man committed six shootings, he was finally arrested for gun crimes.
Now James Ho and the 5th Circuit Court of Appeals, the same one that upheld the ban on [00:42:00] Miffy Pristone, are using the case. to attack one of the most important common sense gun laws that protects countless American women from violence. We'll find out how they're doing it, and how Leonard Leo and the gun lobby are reshaping the Constitution to deprive us of our most basic protections under the law.
That's coming up next time on Grave [00:43:00] Injustice.