The Supreme Court’s decision to strike down the precedents set by Roe v. Wade and Planned Parenthood v. Casey, which established the right to abortion in the U.S., has created a chaotic legal situation as conservative states rush to ban the procedure. On this week’s show, Vanessa A. Bee talks with Idaho physician Caitlin Gustafson, an advocate with Physicians for Reproductive Health, and University of Pittsburgh Law School professor Greer Donley about the future of abortion in red-state America.
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Vanessa A. Bee: Welcome to Deconstructed. I’m Vanessa A. Bee, author of the memoir “Home Bound: An Uprooted Daughter’s Reflections on Belonging” filling in this week for Ryan Grim.
This has been a tumultuous summer for reproductive rights. Five decades after the Supreme Court ruled that our constitutional right to liberty and privacy includes the right to abortion, they overturned the landmark case of Roe v. Wade, and concluded that in fact, the Constitution does not protect the right to terminate a pregnancy.
The decision was not exactly a surprise. Just a few months earlier, in May 2022, a shocking leak to Politico revealed the majority was planning to do away with Roe. But this was a long time coming. For years, conservative state legislatures have passed laws to limit abortion: imposing waiting periods, notification requirements, and banning common methods of termination. The Supreme Court struck down some of these, but it upheld enough to chip away at the right to abortion and embolden the anti-choice movement. Still, Roe established a right to an abortion well into the second trimester, up to around 23 weeks. In a 1992 case, Planned Parenthood v. Casey, prohibited states from passing laws that placed “substantial obstacles in the path of a woman seeking an abortion of a nonviable fetus.”
Those rulings were still in effect when the Supreme Court agreed to hear Jackson Women’s Health Organization v. Dobbs, which challenged Mississippi’s ban on abortions after 15 weeks. While that case was pending, the Court refused to stop Texas from enacting a ban on most abortions after 6 weeks. When the Court upheld Mississippi’s 15-week ban, it actually also overturned the Casey ruling against undue burdens.
Anti-choice states have since moved quickly. Thirteen states had previously passed laws that would trigger abortion bans as soon as the Supreme Court found abortion unconstitutional. Most of these trigger laws carry steep penalties, ranging from fines and loss of medical license, to mandatory prison time. A few make no exception for rape or victims of incest.
The Women’s Health Protection Act, a federal statute that would protect the right to abortion nationwide, failed to pass the Senate this spring.
Our first guest, this week, is Dr. Caitlin Gustafson. Dr. Gustafson is a physician based in Idaho; she is also an advocate with Physicians for Reproductive Health, a nonprofit group that organizes, mobilizes, and amplifies the voices of medical providers to advance sexual and reproductive health, rights, and justice.
Dr. Gustafson, it’s a pleasure to have you on the show.
Dr. Caitlin Gustafson: Yeah. Thanks for having me.
VAB: Before we get started, tell us a little bit about your practice and what drew you to medicine.
CG: Yeah. So, I’m a rural family doctor. I practice family medicine across the spectrum, from delivering babies — I’m fellowship trained in obstetrics as a family doctor — and so I provide obstetrical care. I also work in the clinic doing family practice, clinic care; I also work in the hospital providing emergency care in our rural ER and inpatient care services.
VAB: And what drew you to that field?
CG: When I entered medicine I always wanted to be a family doctor; I wanted to work in a rural area where I could do the broad spectrum of care and take care of patients across the whole life spectrum. And that really drew me in. I had a particular interest in obstetrics and reproductive health care, and so that fit very nicely into being a rural family doc.
VAB: There seems to be a lot of misconception about when people need abortions and what kind of people need abortions. Can you give us a sense of the range of situations you’ve seen over the years?
CG: Absolutely. I think it’s exactly that. There’s a huge range. I think the need for abortion or the indications, or why someone would need one or pursue obtaining an abortion are as varied as patients themselves. People’s lives are complex, as are the decision-making and the life decisions around desiring an abortion. So there is no one abortion patient or one indication that is more important than another. Those are all personal decisions for a patient in regard to how they view their reproductive lifespan and what they want for themselves and their family and their health.
That was also what I learned early in medicine and why it became really important for me to provide that as an essential part of reproductive health care.
VAB: Before the court overturned Roe v. Wade, how difficult was it to terminate a pregnancy in Idaho? By that I mean, are clinics there geographically accessible? Are there a lot of prerequisites and barriers getting in the way?
CG: Yeah, absolutely. I mean, Idaho is a rural state. Access to abortion has been limited prior to any of these recent things that happen at SCOTUS or the current bans that we’re contending with in Idaho. Many, many patients for years have had to travel hundreds of miles to obtain abortion care when and if they needed it, and even in medically emergent situations have very challenging time delays getting to a center that can provide them that care.
VAB: And were there requirements, for instance, for patients, were there waiting periods? Did people have to leave and come back?
CG: Mhmm. Yeah, we’ve had a number of restrictions over the years around abortion care in Idaho that have come through the legislature prior to outright bans that we’re contending with right now. We’ve had a 24-hour waiting period, for as long as I can remember. I’ve been working and living in Idaho for 17 years. And we’ve had parental consent laws, what what some people refer to as the TRAP laws around abortion. So various restrictions have contributed to the difficulty in accessing this health care.
VAB: What was the immediate impact of the recent Supreme Court decision on your practice, if any?
CG: So we have, like many other states, a trigger law that has been on the books that is directly related to the Dobbs decision. That particular ban we refer to as the total abortion ban, and has not yet gone into effect. It was written in 2020 by our legislature and will officially trigger — if there’s no court action in the meantime — on August 25.
What we’re contending with an Idaho that’s somewhat particular to us is that it’s not just one ban that we’re dealing with, we actually have three intersecting bans with different penalties associated with them, with different exceptions versus affirmative defenses, all of which interact, but have different language, which has contributed to the confusion around how these bans are going to go into effect, when they’ll go into effect. Immediately when Dobbs dropped, we didn’t have a trigger that went into effect directly right after that decision. But, like I said, August 25, our so-called trigger law goes into effect. And we’ve been contending with another piece of legislation that’s referred to as the Fetal Heartbeat Act. And part of that went into effect last week when a stay was lifted by the Idaho Supreme Court.
VAB: So you’re actually a co-plaintiff in three lawsuits that were filed against the state of Idaho with the regional Planned Parenthood chapter. Are these the laws that you’re challenging with this lawsuit?
CG: Yeah, so I am, as you said, co-plaintiff and these three crucial lawsuits filed against the state of Idaho. Each again, like I mentioned before, have different language and different ways in which they restrict abortion care in Idaho.
VAB: It sounds like that restrictive language and overlapping laws might create a lot of confusion. How are obstetricians and other physicians in the state, as far as you know, dealing with pregnancies where medical emergencies require termination and where the language is potentially unclear?
CG: Yeah, we have been spending — myself and other physicians — hours of meeting time trying to interpret to the best of our ability these bans that are written in vague language that by definition makes them unsafe for precisely the reason that you allude to. As we see these roll into effect over the next week or so, we remain in a situation in which it isn’t clear what is allowed, particularly as it pertains to care of women in medical situations that are health- and life-threatening, as well as for our patients who have been the victims of rape and incest. These are, depending on which ban you’re talking about, provided for as so-called exceptions, or in the case of the total abortion ban, as affirmative defenses, but they are anything but clear.
CG: So it sounds like there’s a genuine fear among practitioners of repercussions. Is that right?
VAB: Absolutely. Because the bans are so vague, that’s precisely what makes them unsafe. There are very few areas of clarity around what constitutes a direct threat to a woman’s life, the total abortion ban is specifically phrased that it is an affirmative defense if, and “in the good faith medical judgment of a provider, abortion is necessary to prevent the death of the pregnant woman.” And, again, “this does not include harm to herself.”
So this is, again, not an exception. It’s an affirmative defense, which means a physician, in an emergent situation would have to make the call that providing that abortion would otherwise cause or potentially cause the death — if they did not provide abortion, that the death of the pregnant woman would be imminent.
At what point, do we wait? Until we’re sure. Until a woman’s septic? Until she’s had liters of blood loss and a hemorrhage to make that call? There’s many examples in which it’s considered an emergency but not necessarily an imminent threat to the woman’s life. However, if the condition goes untreated, she could die from that situation. So you have physicians losing precious time and forced into this really untenable situation, right? Do I potentially break the law and face criminal charges under an affirmative defense, which means a physician will face the charges and then have to prove that they met the narrow affirmative defense provided for in the law, after-the-fact. But when you think about being a physician in that situation, that’s a very anxiety-provoking place to be/
VAB: With the lawsuits that you’re a part of that are challenging some of these laws, what are you and Planned Parenthood seeking to accomplish? What outcomes are you asking for?
CG: So the cases themselves will be heard on August 3. That was a procedural argument, right? We were asking for a stay, we were asking specifically for a stay because these laws are so vague and therefore dangerous. And as we talked about, we didn’t receive that relief from the court. But these cases have not yet been heard on their merits. And that has been set for late September. And so the case will continue to be made by our side that this is a violation of the Idaho Constitution on several grounds. And particularly, in that it is so vague such that it threatens the health and the life of Idahoans with the bans in effect.
VAB: Dr. Gustafson, thank you for your time. Thank you for your advocacy and good luck.
CG: Thank you so much. Appreciate you.
VAB: Our second guest today is Professor Greer Donley, from the University of Pittsburgh Law School, where she teaches and researches healthcare, bioethics, and FDA law, with particular focus on reproductive rights.
Professor Donley, welcome to Deconstructed.
Professor Greer Donley: Thanks for having me.
VAB: I am so glad you could join us today because you have been thinking about the legal ramifications of abortion bans for a long time. And the Supreme Court’s decision in Dobbs opens a lot of questions about what people can and cannot do, even in pro-choice states. So I’d like to start there, with the laws themselves.
Who are these abortion bans usually targetting?
GD: Yeah, so I mean, for the most part, abortion bans are going to target anyone capable of becoming pregnant, which is a majority women, but also includes girls, trans men, and non-binary folks. And the Supreme Court’s decision essentially allowed states to ban abortion. And we’re seeing the effects of that already, right? Many states have moved to ban abortion. The Guttmacher Institute estimates that roughly half the country will have banned abortion by the end of the year. And so when that happens, if a person gets pregnant, and they don’t want to be pregnant, and they happen to live in half of the country where abortion is banned, they have a few pretty bad options available to them.
The first is they can, of course, continue a pregnancy against their will, and either keep the child that results from that pregnancy or use adoption. The second option is that they can travel to another state where abortion remains legal. But that is a very, very expensive option, and given that three quarters of abortion seekers are poor or low-income, the thought of having an interstate trip on hardly any notice, sometimes hundreds of miles long, is something that’s just not going to be available to many, many people who would like an abortion.
And the final option is that of course, a person can order abortion pills online, staying in the state that bans abortion, and using services like Aid Access, and Plan C to make sure they’re getting, you know, the safest and most accurate medications. And that is an option that is relatively cheap and fairly easy and still quite medically safe, but has a lot of legal risks. And so, you know, the people who choose to remain behind in states where it’s banned and self-manage an abortion that way have increasing risk related to state surveillance and criminal punishment.
VAB: Are some of these bans phrased to reach self-managed abortion?
GD: So it’s a great question. Many of the states’ trigger bans and general abortion bans that are currently on the books, many of them are, if not, most of them, include exceptions for the pregnant person. So in other words, theoretically, it’s not going to be extremely easy in this moment for states to target and prosecute the person who is ending their own pregnancy.
However my co-authors, and I very much urge people to be aware that that could change very quickly. We’re seeing an emboldening in the anti-abortion movement that is much more willing to consider bans that might include criminal punishment for the pregnant person. But also, in the last 20 years, states have used other types of laws to target people who self-manage an abortion. So this is especially true for people who self manage later in pregnancy, they have used feticide laws, they’ve used child abuse and neglect laws. And what’s recently happening, I think, in Nebraska, but has also happened in my home state, Pennsylvania, people who help someone obtain abortion pills can be criminally prosecuted often can serve prison sentences for just helping someone: the parent who helps their child by buying their abortion pills online can go to prison.
VAB: So if these laws are reaching parents, for instance, I would assume that medical providers are also potentially liable here.
GD: Absolutely. And the providers are very, very aware of this fact. The only providers who are actually shipping abortion pills into states that ban abortion are international providers, so people who live in Europe, for instance, in pharmacies that operate in India, in Hong Kong. And so these are folks that feel confident that they are not going to get extradited to the United States. So it’s not necessarily that their conduct is compliant with the state law. It’s just that the state has no power to reach them. So as far as I know, there is there are no providers who are knowingly sending pills into states that ban abortion who reside in the United States, because the legal risks are so high.
VAB: Is there anything in the U.S. Constitution that arguably protects people’s right to travel to pro-choice dates for the purpose of aborting a pregnancy?
GD: Absolutely, yeah. So in a paper that I wrote with David Cohen and Rachel Rebouché called “The New Abortion Battleground,” we set out to explore this exact question. And it turns out there are many places in the Constitution that might protect people’s right to travel, to get an abortion and other health care in this post-Roe country. The problem is that there’s very little precedent that actually evaluates those rights when they’re very dependent on courts enforcing them. So it just turns out that, for the most part, states don’t actually try to prevent their citizens from traveling to other states to enjoy other laws, for instance, to smoke marijuana for fun in Colorado or to gamble in Nevada. Historically, there just haven’t been very many cases where states have tried to stop their citizens from doing that. Abortion is really opening the world to something quite new, where states are interested in trying to stop their citizens from doing that. And it turns out that we just have very little case law on the matter.
And combining that fact with the reality that there are a lot of highly motivated, anti-abortion judges, and prosecutors, and legislators out there, there are real concerns about whether or not the courts are going to find that there is a right to travel, especially in the context of certain types of laws, like personhood laws, where the state says that a fetus is a person under full understanding of our laws. And you might imagine very quickly, once those laws take effect, that even if the person is able to travel to a state that permits abortion to obtain an abortion, the state might still choose to prosecute people for doing so on the grounds that the conspiracy to murder occurred in the state that banned abortion, and that conspiracy happened in their state, and they can charge them on that ground.
So there’s a lot of uncharted territory here. And the point of our larger paper is simply to say: chaos is coming.
VAB: On the related point, is there anything that pro choice States can do to protect people who do take chances and travel within our borders to terminate pregnancies?
GD: Yeah, so, you know, my co-authors and I have worked, actually, with legislators in Connecticut and New York to help pass laws that are now known as state shield laws. They’ve been passed in other states now as well. Many states’ governors have signed executive orders that try to do similar things. The idea in the state shield law is essentially that a state can try to protect its abortion providers and the people within its state that are helping those who come from other states to seek abortions in their state and say: Hey, other states, we’re not going to let you touch our abortion providers, or the people who are reside in our state, when they are just doing things that are purely legal and lawful care according to our laws.
So these state laws are very important. We’re going to certainly see their effects probably coming up in the next few years and litigation. But the important thing to note about the shield laws is as much as they provide important, and necessary, and vital protections for abortion providers and states that continue to permit abortion and the helpers that live in those states, they aren’t really able to protect the patients who, you know, have to return to the state that bans abortion, who are still quite at the mercy of the law enforcement folks in their home state.
VAB: I want to shift and talk a little bit about the federal government. We know that the FDA has the power to approve the use of certain medications, some of which are very important to terminating pregnancies. Can they play a role here?
GD: Yeah. So in the same paper, my co-authors and I argue that there’s actually a fair amount of precedent to suggest that the FDA is really the sole and exclusive authority for prescription drugs. And the FDA has regulated and approved medication abortion ever since 2000. It has exercised enormous amounts of control over this drug, much more than most drugs that are on the market. And we argue that the states cannot regulate that drug beyond what the FDA did.
And so a kind of quick way to understand this is the idea that a state can’t ban a drug that the FDA has permitted. And so certainly the FDA is going to play a role that’s a big battle that’s going to play out in the courts over the next few years as well. And we’re going to have to wait to see whether the FDA gets involved in that battle or not.
VAB: That’s very, very interesting.
Earlier this month, the Department of Justice filed a lawsuit against the state of Idaho in connection with the state’s abortion ban. Can you tell us a little more about what the government seems to be going for here?
GD: Yeah, so this is another kind of exciting area. So earlier we were talking about the interstate conflicts that are going to come between states that ban abortion and states that permit abortion, but the last few questions really revolve around the conflicts between the federal government and state governments.
So here, in the Idaho case, we have the federal government saying there is a federal law, known as EMTALA, which forces hospitals to provide emergency care to folks who show up at hospitals. Right? So if you show up to a hospital and you are having a heart attack, but you don’t have insurance, the hospital is not permitted to turn you away. It is required to treat you. And so EMTALA is being used now in this new context to say, at least in the context of medically necessary and life-saving abortions, states have to provide this abortion care.
And this is extremely relevant because even though most states have health — or at least life — exceptions in their abortion bans, we’re still seeing the reality that people in those states who have health complications requiring an abortion, are being forced to wait and watch their health and life deteriorate before anyone will intervene to save them. And so EMTALA is a possible tool the federal government can use to say: Hey, that’s illegal under the under federal law, you actually have to treat someone immediately when they are suffering from a life-threatening condition for which abortion is the primary treatment, and so the federal government sued Idaho, because Idaho only has a life exception in its abortion ban. And those states that don’t have health exceptions are theoretically in conflict with the federal law, because the federal law requires treatment even when someone’s health is severely impacted.
So it’s essentially a way for the government to say, if the state’s abortion ban lacks a health or life exception, it’s in violation of federal law, and federal law is going to require the state to permit those abortions.
VAB: Do you see other steps the federal government could potentially take to proactively protect the right to abortion?
GD: Yeah, so another one that we’ve seen is related to HIPAA, which is a federal health privacy law. This is a law that prohibits people in the health care sector from disclosing protected health information. So this law could potentially help in states that ban abortion, where we already are seeing the reality that some healthcare workers who are anti-abortion are turning people in who they suspect of having self-managed abortion. And so HIPAA could come in to say: That is illegal under federal law. Under federal law, you can only reveal protected health information when a law enforcement agent comes to you, and requests, with a court-ordered warrant or similar document, this information. You can’t, as a health care worker, go out of your way to reveal this information to law enforcement. And so this is a federal law that could come into play to try to stop people in states that ban abortion from going to law enforcement and trying to criminalize people who are self-managing abortions in their state.
VAB: There’s also been talk of setting clinics on federal land, is that a realistic idea, in your view?
GD: So that’s an idea that my co-authors and I came up with. It is realistic, there is some hope for it. There are some serious risks here that the federal government has weighed and as at this point, said that it’s not willing to pursue. So practically speaking, at this moment in time, it doesn’t seem like the Biden administration is interested in pursuing this strategy. But that could change as the crisis grows. So the idea here is that on certain types of federal land, federal law applies, not state law, and federal law in general permits abortion, especially medication abortion, which again, the FDA has approved through 10 weeks of pregnancy.
And so, theoretically, if the federal government were to lease clinics on federal land to certain abortion providers, that could be a way of actually providing legal abortion care within states that ban abortion. So we’re going to have to wait and see how that plays out and see if the federal government is interested in trying boulder strategies in the future. But in this moment, the government seems primarily focused on litigation and legal arguments they can make in court.
VAB: Professor Donley, we really appreciate you sharing these insights with us. And thank you so much for coming on today.
GD: Thank you for having me.
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VAB: That was Dr. Caitlin Gustafson and Professor Greer Donley, and that’s our show.
Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. Our supervising producer is Laura Flynn. The show was mixed by William Stanton. Our theme music was composed by Bart Warshaw. Roger Hodge is The Intercept’s editor in chief.
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