On Tuesday, the Supreme Court marked International Trans Day of Visibility with yet another ruling that puts the lives of trans people at risk. The justices ruled that Colorado’s statewide ban on conversion therapy for young people likely violates a Christian counselor’s First Amendment rights. The decision threatens conversion therapy bans nationwide, which are currently on the books in nearly half of all U.S. states.

The 8-1 ruling has far-reaching, terrifying potential consequences. And not only for trans youth: It indicates that speech delivered by licensed health care practitioners in a professional capacity, no matter how harmful and debunked the claims, cannot be banned as illegal conduct, because it counts as protected speech.

Only Justice Ketanji Brown Jackson, the one dissenting judge, appeared to appreciate the grave stakes of this ruling.

“Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want,” Jackson wrote in a blistering dissent. “Largely due to such State regulation, Americans have been privileged to enjoy a long and successful tradition of high-quality medical care. Today, the Court turns its back on that tradition.”

The dangers of conversion therapy to trans and queer youth cannot be overstated. According to the Trevor Project, a nonprofit suicide-prevention organization for LGBTQ+ young people, “LGBTQ+ youth who experienced conversion therapy are more than twice as likely to attempt suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year.”

Conversion therapy, however, may not be the only potentially harmful intervention the ruling would apply to. As Jackson added in her dissent, the ruling “might make speech-only therapies and other medical treatments involving practitioner speech effectively unregulatable — not to be reached via licensing standards, medical-malpractice liability, or any other means of state control.”

It is a ruling, then, completely in line with our Trumpian moment of decimated medical care standards and eliminationist assaults on trans people. Indeed, it was done with support from President Donald Trump’s Justice Department.

As journalist and trans rights advocate Erin Reed wrote, the court’s logic in the ruling holds that “any medical treatment delivered through words rather than instruments could now carry First Amendment protection — a framework that could shield a doctor who encourages a patient to commit suicide, a dietician who tells an anorexic patient to eat less, or a therapist who deliberately steers a vulnerable client away from life-saving treatment.”

Reed noted that the decision risks extending constitutional protections to “speech-based professional conduct” in other fields, like a lawyer giving knowingly harmful legal advice.

Speech as Medicine

The crux of the majority’s opinion rests on the contested line between speech that is protected against government interference, and conduct, which can be regulated.

“Her speech does not become ‘conduct’ just because a government says so or because it may be described as a ‘treatment’ or ‘therapeutic modality,’” wrote Justice Neil Gorsuch in the majority opinion, referring to the speech of Christian counselor Kaley Chiles, who sued the state of Colorado over the conversion therapy ban with representation from the right-wing legal giant the Alliance Defending Freedom.

Gorsuch’s opinion draws an extraordinary conclusion about the role of certain speech acts in professional health care settings.

The Colorado law did not ban Chiles from holding and expressing Christian views; the law, like regulations in over 20 other states, banned conversion talk therapy — that is, speech acts delivered with the specific aim to “change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.”

It is precisely professional conduct that the law regulates.

As Jackson noted in her dissent, “The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of a scalpel.”

Every major medical and mental health association has condemned the practice of conversion therapy.

Other Liberal Justices?

Given the danger posed by the court’s decision, it may seem surprising that the two other liberal justices, Elena Kagan and Sonia Sotomayor, sided with the far-right majority. Their decision, according to their concurring opinions, related to the fact that Colorado’s law was not written in sufficiently “viewpoint-neutral” language. 

“We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expressions because, as the Court holds, Colorado’s is not one,” wrote Sotomayor.

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With this far-right supermajority Supreme Court, however, even cautiously worded conversion therapy bans may not survive the conservative justices. In the last year alone, the court has bucked precedents and ignored medical expertise, not to mention basic humanity, in previous anti-trans decisions like banning trans youth health care and ejecting trans people from the military.

The court’s Tuesday decision did not in itself strike down the Colorado law, but in siding with conversion therapy, the justices returned the case to the 10th Circuit, where the highest form of judicial scrutiny will be applied. The law will almost certainly be struck down.

If existing bans are invalidated, those seeking to stop a further proliferation of conversion therapy may now have to use “creative methods,” Reed wrote, like tort law and malpractice law.

This is the grim legal terrain forged by the Trump regime and bigoted groups like the Alliance Defending Freedom, aided by too many negligent or complicit liberals. Medical malpractice and harmful speech acts are protected, whereas trans kids’ existence gets no protection at all.

The post Conversion Therapy Gets Speech Protections — But Trans Kids’ Existence Gets No Protection at All appeared first on The Intercept.

Under the Constitution, a plaintiff must be suffering some concrete injury to bring a federal lawsuit. In the mifepristone case — FDA v. Alliance for Hippocratic Medicine — the suit was brought by a collection of anti-abortion advocates, some of them doctors, who neither provide abortion care nor prescribe mifepristone. Nonetheless, they claimed that somehow, someday they may be forced to treat a patient suffering complications from taking mifepristone, which they said granted them the right to sue.

The Supreme Court didn’t buy it. “The plaintiffs do not prescribe or use mifepristone,” and the FDA approval doesn’t require them to do so, Justice Brett Kavanaugh wrote for the court. “Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain.” Their desire to make the drug “less available for others does not establish standing to sue.”

The plaintiffs have long made the demonstrably false claim that mifepristone is frighteningly unsafe — indeed, research making this claim was recently retracted by its publisher. Kavanaugh’s opinion seems to acknowledge what mainstream medicine and science have said about those claims: that mifepristone is safe, and there is no evidence that the FDA’s actions have led to increased safety issues or drug complications.

Although the court made quick work of dismantling the Alliance’s claims, the future legal status of mifepristone is most certainly still in the crosshairs.

In January, the states of Missouri, Kansas, and Idaho sought to intervene in the Alliance lawsuit, arguing that they have standing to sue because of their “quasi-sovereign interest” in protecting the “health and welfare of women and girls in their states” against the dangers of mifepristone so recklessly ignored by the FDA. Their effort to join in the legal action before the Supreme Court was denied, but their efforts at intervention are still alive in the lower courts.

In statements just after the Supreme Court’s Thursday morning ruling, the attorneys general of Kansas and Missouri vowed to press their case. “We are moving forward undeterred with our litigation to protect both women and their unborn children,” Missouri Attorney General Andrew Bailey said.

And Idaho is fighting to roll back abortion access in other ways as well. Still outstanding from the Supreme Court this term is a ruling in another consequential case — Idaho v. United States — where the state is challenging long-standing federal law that requires hospitals to provide whatever emergency medical treatment is necessary to stabilize a patient, including abortion. That opinion is expected later this month.

A Cynical Endeavor

Mifepristone is the first drug in the standard two-medication abortion protocol. The FDA approved the drug in 2000 for use in early pregnancy termination. Mifepristone, which blocks the hormone progesterone (needed to maintain pregnancy) and softens the uterine lining, is taken first. The second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy. Medication abortion accounted for just 5 percent of abortions in 2001 and has since grown — particularly in the wake of the Supreme Court’s 2022 Dobbs decision — and now accounts for more than 60 percent of all abortions in the U.S. The protocol is also commonly used in miscarriage management.

Over the years, the FDA has loosened restrictions around mifepristone — including increasing the window for its use up to 10 weeks into pregnancy and doing away with a requirement that doctors dispense the drug in person (after all, there is no such requirement for dispensing misoprostol, which actually causes the abortion, and is taken later, at the time and place of the patient’s choosing). The FDA subsequently expanded access by allowing mail-order and brick-and-mortar pharmacies to dispense mifepristone to patients with a prescription in states where abortion is legal.

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The anti-abortion groups at the heart of the Alliance lawsuit didn’t like any of these developments and have long claimed — devoid of any scientific backing — that mifepristone is a uniquely dangerous drug and instead of being liberalized should be banned altogether.

From the jump, the Alliance suit was a cynical, propagandistic endeavor. The Alliance is an umbrella organization made up of the American Association of Pro-Life Obstetricians and Gynecologists, the Christian Medical & Dental Association, the American College of Pediatricians, the Catholic Medical Association, and the Coptic Medical Association of North America. The members of these five well-known affinity groups have long been vocal about their anti-abortion views.

The Alliance itself, however, is new: It incorporated in Texas’s Panhandle just three months before filing its lawsuit there — an obvious ploy to draw federal Judge Matthew Kacsmaryk, a far-right darling, who is the lone judge in Amarillo tasked with hearing cases filed in the area. Kacsmaryk did not disappoint: In a raving opinion lifted from the pages of an anti-abortion talking-point glossary, he said the groups and their individual plaintiff doctors had the right to sue, and he issued a sweeping nationwide injunction that would block anyone, anywhere from using mifepristone for any reason. 

The federal government appealed to the 5th U.S. Circuit Court of Appeals, which ultimately disagreed that mifepristone should be banned altogether, but did block the FDA’s more recent moves to increase its availability. In other words, the appeals court ruled that mifepristone could only be available under the most stringent of rules, rolling back the widely accepted medical standard of care. The FDA again appealed to the Supreme Court, which heard oral arguments in the case in March.

Dubious Arguments

Before the court, Erin Hawley, a lawyer with the far-right Alliance Defending Freedom, which represents the Alliance for Hippocratic Medicine, struggled to present a cogent argument for why her clients had standing to sue. The gist of it went something like this: Mifepristone is so wildly dangerous that patients suffering complications are going to be flooding medical facilities and inundating providers. Eventually one of those patients will maybe — probably? — come to a member of one of the Alliance’s organizations, forcing the doctor to participate in providing an abortion, even if only tangentially.

The organizations themselves were also directly harmed by the FDA’s approval of mifepristone, she argued, because they were forced to divert resources from their other anti-abortion priorities and to instead channel them into fighting against the FDA and commissioning studies claiming mifepristone is a deadly drug. 

Hawley also leaned into the argument that the zombie law from 1873 known as the Comstock Act, which forbids the mailing of “every article or thing” that could be used for abortion, bars the freer distribution of mifepristone. Mifepristone, she noted, certainly fits in the category of banned items.

In its 9-0 opinion, the court was mum on the Comstock question. Somewhat surprisingly, Justice Clarence Thomas did not mention it in his concurring opinion either, after having referenced it during oral arguments, as did Justice Samuel Alito.

Instead, the court focused on Alliance’s standing arguments — and dismissed the case on those grounds. The organizations that make up the Alliance had not shown any concrete injury from the FDA’s approval, and it “cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action,” Kavanaugh wrote. “An organization cannot manufacture its own standing in that way.”

The court also readily dismissed the notion that any of the individual doctors had standing to sue. Their arguments were too speculative and tenuous to hit the mark. “Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no directly monetary injuries from the FDA’s actions relaxing regulation of mifepristone,” Kavanaugh wrote. “Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone.”

Notably, the court’s opinion nodded to mifepristone’s safety by acknowledging that the plaintiffs presented no evidence suggesting that the FDA’s actions both increased the number of patients seeking them out for treatment and caused them to divert attention from other patients. Nor have they identified “any instances” from the past where they were sued or where their insurance costs increased because they’d treated pregnant patients “suffering mifepristone complications,” he wrote. “Nor have the plaintiffs offered any persuasive evidence or reason to believe that the future will be different.”

The case now goes back to the 5th Circuit, with a mandate to follow the high court’s ruling.

The post GOP States Double Down on Fighting Medication Abortion After Supreme Court Keeps It Legal appeared first on The Intercept.

The doctors are not claiming that they’ve been hurt by taking the drug or prescribing it, which none of them do. Instead, their theory goes something like this: Mifepristone is dangerous, and pregnant people who take the drug are bound to have serious complications. When they do, they’ll probably go to an emergency room, which could be in a hospital where one of the anti-abortion doctors works. As a result, the doctor could be pulled from regular patient duties to deal with the mifepristone-related emergency, forcing them to play some role in the provision of abortion and causing emotional trauma.

The claim is so tenuous that during oral arguments in the case on Tuesday, not even the anti-abortion majority of the U.S. Supreme Court seemed to buy it as a theory that would give the group standing to sue the FDA. The justices appeared disinclined to rule in a way that would narrow access to medication abortion, at least for now.

“FDA approved mifepristone based on the agency’s scientific judgment that the drug is safe and effective,” U.S. Solicitor General Elizabeth Prelogar told the court. “It’s maintained that judgment across five presidential administrations, and millions of Americans have used mifepristone to safely end their pregnancies.” The alliance “may not agree with that choice,” she continued, “but that doesn’t give them … a legal basis to upend the regulatory scheme.”

Mifepristone is the first in a two-drug protocol approved for early pregnancy termination. It blocks progesterone, a hormone needed to continue pregnancy, while the second drug, misoprostol, causes the uterus to contract, expelling the pregnancy. Mifepristone is among the most studied drugs in the country; it has been used in more than 600 published clinical trials, and at less than 1 percent, the risk of serious complications is low. Today, the two-drug regimen accounts for more than 60 percent of all abortions in the United States.

The FDA first approved mifepristone in 2000. In 2016 and 2021, the agency loosened restrictions on the drug that had long been challenged as medically unnecessary, extending its use through 10 weeks of pregnancy and lifting a requirement that it be dispensed in person.

The Alliance for Hippocratic Medicine, an umbrella organization for several groups of anti-abortion doctors, filed federal suit in Amarillo, Texas, in late 2022, challenging the FDA’s initial approval of mifepristone as reckless and the subsequent changes as hazardous. Filing the suit in Amarillo — where the group had only recently incorporated itself — offered a tactical advantage: It guaranteed that the case would be heard by Judge Matthew Kacsmaryk, a far-right Trump-appointed judge who hears all federal civil cases filed in the Texas Panhandle.

Kacsmaryk did not disappoint. In April 2023, he sided with the alliance, ruling that the FDA never should have approved mifepristone in the first place. To support his position that mifepristone was wildly unsafe, Kacsmaryk disengaged from science and instead cited an analysis of anonymous blog posts, a researcher whose work has been repeatedly called into question, and two studies sponsored by an anti-abortion organization that have since been retracted by the journal that published them.

The government appealed to the 5th U.S. Circuit Court of Appeals, which disagreed with Kacsmaryk’s conclusion regarding the 2000 approval of mifepristone but nonetheless said the FDA impermissibly loosened restrictions in 2016 and 2021.

In coming to their conclusions, both courts bought the alliance’s shaky theory of legal standing. On Tuesday, the justices on the Supreme Court seemed less convinced — even if Justice Samuel Alito was inclined to try to help his colleagues along. What if an anti-abortion doctor was the only person on duty in an emergency room when a “woman comes in with complications from having taken mifepristone … and as a result, in order to save her life, the doctor has to abort a viable fetus?” he asked the solicitor general.

The doctors “haven’t identified any incident in more than 20 years … that resembles that kind of hypothetical situation.”

If the doctor was forced into action, that could be a violation of longstanding laws that protect providers’ conscience rights, Prelogar responded, but that “situation has never come to pass.” The alliance and its doctors “haven’t identified any incident in more than 20 years that mifepristone has been available on the market that resembles that kind of hypothetical situation.”

Experts have worried that allowing legal standing on such a thin premise would lower the bar and permit nearly anyone to sue the FDA or any other agency for nearly anything they disagree with. Doctors who don’t think vaccinations are safe could sue to have their approval yanked; cardiologists could challenge a new heart medicine on the grounds that “some patients would no longer require their services,” as the FDA pointed out in a legal brief. Pharmaceutical companies have voiced concern that accepting the alliance’s premise would upend the system, encourage judges to second-guess scientists, chill drug development, and harm patients.

Even if the court were to accept that conscience rights had been violated, the doctors’ suggested remedy — making mifepristone illegal for everyone — was excessive, Justice Ketanji Brown Jackson observed. “I’m worried that there is a significant mismatch … between the claimed injury and the remedy that’s being sought.” Exempting the doctors from participating in abortion-related care seemed the logical solution, she said. Instead, “they’re saying because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all.”

Erin Hawley, a lawyer with the far-right Alliance Defending Freedom, which represents the Alliance for Hippocratic Medicine, tried to push back, ignoring the fact that broad conscience objections can be raised with hospital administrators or other health care employers well before a particular situation arises. She argued that the doctors couldn’t afford to waste “precious moments scrubbing in, scrubbing out” of the ER to lodge an objection.

Justice Neil Gorsuch interrupted: There had been a “rash” of recent cases in which a lower court issued a nationwide ruling when the circumstances called for a more modest result. “This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on … an FDA rule or any other federal government action,” he said.

If the court rejects the alliance’s theory of legal standing, the case is dead without the justices having to address the group’s baseless arguments about the dangers of mifepristone, and the drug will remain available, as it is now, under the FDA’s current regulations. The court is expected to issue a ruling later this year, likely near the end of its session, which concludes in June.

That doesn’t mean that the attacks on medication abortion will stop or that the court will stand in their way. Both Alito and Justice Clarence Thomas seemed open to discussing a revival of the Comstock Act, an 1873 law that outlawed mailing anything considered “obscene, lewd, lascivious, indecent, filthy, or vile” — which included contraception — as well as “every article or thing” that could be used for abortion.

The zombie law has been dormant for decades, but many anti-abortion activists see it as a means of enacting a de facto national medication abortion ban without having to confront mifepristone’s safety record — even if the law’s broad language would trigger the possibility that instruments and drugs used for routine gynecological procedures could also be subject to its provisions.

During oral arguments, Alito asked whether the FDA should have considered the Comstock Act before lifting the in-person dispensing requirement, which led to widespread mail order sales. No, the solicitor general responded. If the restriction wasn’t medically necessary, then the FDA was required to lift it, not consider a statute that was outside its scientific purview.

Thomas asked Hawley, the alliance lawyer, for her take on Comstock. “The Comstock Act says that drugs should not be mailed,” she said. “We think the plain text of that, your honor, is pretty clear.”

The post Anti-Abortion Doctors Struggle to Explain Mifepristone Harms Before Supreme Court appeared first on The Intercept.

After more than a month into the U.S.–Israel conflict with Iran, President Donald Trump addressed the nation directly for the first time on Wednesday about why he dragged the country into an unprovoked illegal war. During his wide-ranging speech, Trump made numerous false claims, including repeatedly emphasizing the nuclear threat Iran posed.

The reasons the Trump administration have given for partnering with Israel in this war have been varying and at times include religious undertones, especially from Defense Secretary Pete Hegseth. Hegseth regularly infuses Christian right rhetoric in how he speaks about the war on Iran and the military more broadly.

During a recent religious service at the Pentagon, Hegseth prayed for God to give U.S. troops “wisdom in every decision, endurance for the trial ahead, unbreakable unity, and overwhelming violence of action against those who deserve no mercy.”

“Hegseth belongs to a denomination called the Communion of Reformed Evangelical Churches. … [He] believes that he is carrying out a spiritual and actual war to vanquish a Christian nation’s enemies and protect and promote a Christian nation,” explains investigative journalist Sarah Posner, who covers the religious right, on The Intercept Briefing. “For Hegseth, biblical law is the only law he feels obligated to obey. The law of war, international law governing military conflicts, and human rights and civilian rights in war — he believes don’t apply to him.”

This week on the podcast, Posner speaks to host Jessica Washington about how various factions of the Christian right are shaping U.S. foreign and domestic policies. 

“I don’t think the mainstream media has ever taken the Christian right seriously enough. They have consistently viewed Trump’s relationship with white evangelicals as ranging from harmless to purely transactional. When in fact, I think that they’re very deeply ideologically embedded with one another,” she says.

Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, YouTube, or wherever you listen.

Transcript 

Jessica Washington: Welcome to The Intercept Briefing. I’m Jessica Washington, politics reporter at The Intercept.

Akela Lacy: And I’m Akela Lacy, senior politics reporter at the Intercept and co-host of the Intercept Briefing with Jessie.

JW: Before we jump into the news of the week, we have some news too. The Intercept Briefing has been nominated for a Webby Award for best news and politics podcast; help us win by voting for us, please.

AL: Yes, definitely vote for us if you like what we’ve been doing with this podcast. We’ve been working really hard to make it better for you, so show us some love.

JW: You’ll make our day. We will add a link to vote in our show notes.

Now onto the news. 

On Wednesday evening, President Donald Trump addressed the nation directly for the first time about why he dragged the U.S. into an unprovoked, illegal war with Iran. 

During his rambly 20ish-minute speech, he made numerous false claims, including repeatedly emphasizing the nuclear threat Iran posed. Trump’s own intelligence agency reported last year that “We continue to assess Iran is not building a nuclear weapon.”

Akela, what did you make of Donald Trump’s speech?

AL: He sounded less energetic than he typically does. The overall tone was, again, as you said, rambling, non-committal, and saying obviously extreme things with this very apathetic tone, which I found interesting. There’s a lot of rumors that he’s not in the best of health, so that was running through my mind through this.

But stepping back a little bit, thinking about what was the purpose of this speech, it was obviously an attempt to agenda set and shape the tone on this war — saying that we’re winning the war, that Iran is decimated, both of which we know are not true, but part of the administration’s attempt to control the narrative on this issue and also combat criticism that the president who has campaigned and thrust himself forward as anti-interventionist is doing exactly the opposite.

JW: The war clearly has been getting to Donald Trump. You can see it in his energy, as you just mentioned. We can also see gas prices are rising. Obviously, the Strait of Hormuz being closed as a result of this war is something that is having catastrophic financial impacts. We also have midterms going on.

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This is definitely having a broader political impact. Last week, I did a story on Melat Kiros, who is being endorsed by the Sunrise Movement as a part of their broader anti-war campaign. We’re definitely seeing candidates latch onto this idea that you can’t take AIPAC and defense money and be meaningfully anti-war.

Akela, how are you seeing it play out in the midterms and in politics more broadly?

AL: This is becoming a huge midterm issue. There’s a wave of insurgent candidates who have been vocal against the war on Iran and challenged both Democratic leadership and incumbents on their stances, including support from the leading pro-Israel lobbying group, which has backed Trump’s war on Iran, the American Israel Public Affairs Committee.

We’ve also reported on the effort by progressive groups to get Democrats to exploit what is a growing rift among Republicans, both on Iran and on Israel. We reported that the pro-Palestine group Institute for Middle East Understanding Policy Project has been urging Democrats on this issue. They’re also planning to spend $2 million on ads this cycle, hitting Republicans in toss-up districts on Israel, but using that as part of a broader strategy to hit Republicans on rifts on foreign policy, which is obviously the bulk of that being on criticism on Iran right now. 

This group, IMEU Policy Project, is one of the groups that met with the Democratic National Committee over concerns about how Gaza could hurt Kamala Harris’s 2024 presidential campaign. This was part of that big story from Axios on Democrats having this secret autopsy on Gaza. Progressive groups are really looking at how to take advantage of this issue in the midterms and take over what they see as a vacuum where Democrats are refusing to do that and leaving opportunities on the table.

That sort of investment on ads from this group is one of the biggest investments from pro-Palestine groups on ad spending this cycle in a cycle where we’ve seen unprecedented levels of outside spending in midterm races where these issues are playing a big role with voters.

JW: You’re right. We’re really seeing this play out in so many different races, this cycle. And Akela, I believe you had a story out this week that also touches on that.

AL: We reported exclusively that Sen. Bernie Sanders endorsed State Assembly Member Claire Valdez on Thursday in New York’s 7th District Democratic Primary, which is of interest to our audience because it is really one of the biggest contests where progressives and socialists and various factions of the left in New York City are battling over who will determine the future of the left under [Mayor] Zohran Mamdani.

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So this race has pit progressive groups against each other. Outgoing Rep. Nydia Velázquez has endorsed Brooklyn Borough President Antonio Reynoso, who has backing from progressive groups like the New York Working Families Party, New York City Public Advocate Jumaane Williams, and several city council members.

Then on the Sanders side, where he just jumped in the ring on the side of the socialist faction of the left, which is backing Valdez, including Mamdani, Democratic Socialists of America, and United Auto Workers President Shawn Fain.

This race is not heavily focused on Iran, but Claire Valdez and Reynoso have both been very vocally opposed to the Iran war. We know Bernie Sanders has long been vocal against this war as well. It’s just another example of how this is becoming a new litmus test — again, for mostly progressives, but they’re also using it to put pressure on the broader party.

JW: It’s clear from your story and other reporting from The Intercept over the last month that the war on Iran is really creating political pressure for Republicans and Democrats.

Obviously, we’re mostly talking about a lot of those divisions on the left. But on the right, there are also these real religious pressures that we haven’t spoken about as much. But on the podcast today, I spoke to Sarah Posner, an investigative journalist who covers the religious right about how the Christian right’s apocalyptic views of end times are shaping U.S. foreign and domestic policies.

Sarah is a contributing writer at Talking Points Memo, host of the podcast Reign of Error, and author of the book “Unholy: How White Christian Nationalists Powered the Trump Presidency and the Devastating Legacy They Left Behind.”

This is our conversation. 

Sarah, welcome to the Intercept Briefing.

Sarah Posner: Thanks for having me.

JW: There’s so much I want to talk to you about, so let’s dive in. The U.S.–Israel war on Iran has been going on for more than a month now, and its end appears illusive.

Last week, during a religious service at the Pentagon, Defense Secretary Pete Hegseth shared a prayer a chaplain gave to the team who raided Venezuela and kidnapped the former President Nicolás Maduro and his wife. Let’s hear a clip.

Pete Hegseth: Grant this task force clear and righteous targets for violence. Surround them as a shield. Protect the innocent and blameless in their midst. Make their arrows like those of a skilled warrior who returned not empty-handed. Let every round find its mark against the enemies of righteousness and our great nation. Give them wisdom in every decision, endurance for the trial ahead, unbreakable unity, and overwhelming violence of action against those who deserve no mercy.

JW: So Hegseth regularly infuses Christian rhetoric in how he speaks about the war on Iran and the military more broadly. And here, he prays for overwhelming violence and no mercy.

Can you talk about the religious messaging that Hegseth has invoked throughout this war and in other military missions the Trump administration has taken?

SP: Hegseth belongs to a denomination called the Communion of Reformed Evangelical Churches. It is a denomination that adheres to the tenets of a Christian movement called “Christian Reconstructionism.” They believe that the Bible — and in particular, what they consider to be biblical law — governs every aspect of life: your personal life, your life at work, your life as a public figure, your life in civilian life, your life in military life, all of it. It’s a very aggressive Christian supremacist ideology in which Hegseth believes that he is carrying out a spiritual and actual war to vanquish a Christian nation’s enemies and protect and promote a Christian nation.

So for Hegseth, biblical law is the only law he feels obligated to obey. The law of war, international law governing military conflicts, and human rights and civilian rights in war — he believes don’t apply to him.

He expects — I think, through his public statements and these monthly prayer gatherings that he has at the Pentagon auditorium — to have the military follow not just Christianity, but his particular brand of Christianity.

JW: What you just said is really interesting to me. Obviously, muscular Christianity, war-mongering Christianity isn’t new; we can go back to the Crusades. But is there something new, though, in what Hegseth and his ilk are talking about?

SP: It’s not new in terms of the religious right. This idea of Christians taking dominion, not only of America, but the world, has been a driving force of the Christian right’s view of foreign policy and their role in politics domestically. But I think what’s new about Hegseth is how unabashed he is about declaring this in public spaces and enforcing it, or attempting to enforce it in the military.

Another big difference is that we are more accustomed to hearing the popularized Christian Zionist message of “We need to go to war with Iran because they’re an enemy of Israel, and it’s our biblical obligation to defend Israel, and potentially, this is one piece of a series of events that will trigger the end times and the return of Jesus.”

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Hegseth comes from a slightly different religious tradition where they don’t adhere to that rapture, tribulation, Armageddon narrative. Instead, they believe that they are on a divine mission to establish God’s kingdom on Earth, and then Jesus will come back.

So for him, it’s a much more muscular, aggressive, imperialist kind of messaging. So when you hear him talk about the military action in Venezuela or potentially Greenland and now in Iran, it’s much more focused on that, as opposed to something that centers Israel and centers the Armageddon narrative as the reasons why we might be doing this.

JW: I want to dive deeper into that side of things, the kind of Christian Zionist side. You’ve written about John Hagee, a televangelist and founder of Christians United for Israel, who thanked Trump for entering the war while he was standing behind a sign that read “God’s Coming … Operation Epic Fury.”

Who is Hagee, and how does he view the war, and how widely held is that view among the Christian right?

SP: So I think Hagee’s view is more widely held than Hegseth’s view. So Hagee is an 85-year-old megachurch pastor and televangelist from San Antonio, Texas. He’s extremely influential in the evangelical world, and he has been extremely influential in Republican politics.

In 2006, he founded the organization Christians United for Israel, which is the political side of his religious arguments about why Christians should “support Israel.” For many years, he’s argued that Christians have a biblical obligation to support Israel, and by that he means support an Israeli right-wing government, support settlers, and occupation, support the war on Gaza, et cetera.

All of this is very tied up in his view of a Bible prophecy about the sequence of events that will happen prior to Jesus’s return. Now, he would argue that he’s not trying to hasten that return, that all of that will happen on God’s timing, but he’s been arguing that the United States should go to war with Iran for at least 20 years.

The political side of the argument is Iran is acquiring a nuclear weapon. He has argued that whether it was true or not. Then, on the religious side, he argues that a war with Iran will trigger a series of events that will lead to the second coming of Jesus. So he has played both sides of this very successfully.

So he makes the religious plea from his pulpit, and sometimes the political plea from his pulpit too. But then through CUFI — through Christians United for Israel — he makes these political arguments as to why it’s the U.S. obligation to defend Israel from aggression from Iran, or go to war with Israel to preempt aggression from Iran.

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But he has built this organization in 20 years to encompass many, many evangelicals who are predominantly Republican voters across the country. He had the ear of the Bush White House, and he had the ear of the first Trump White House. He delivered the benediction when they had a ceremony, when Trump moved the American embassy in Israel from Tel Aviv to Jerusalem.

He has boasted of his strong connection to Trump, and that Trump understands the importance of centrality of Israel, not only to American foreign policy, but to this religious narrative in which Hagee argues that when Jesus comes back, he will rule the world for 1,000 years from a throne on the Temple Mount.

JW: I came across Hagee for the first time covering Daystar, which I’m sure you’re very familiar with. For those who don’t know, it’s essentially an evangelical Christian broadcasting network that hosts a bunch of different televangelists. They’ve got various scandals over the years that we won’t get into, but the important thing to know about them is they’re very much a part of the kind of constant drumbeat of pro-Israel, of this is a sign of the end times, and very much pushing U.S. foreign policy in a direction that is pro-Israel and fueling war in the Middle East. I guess, at least that’s what they’re pushing.

But my question is, how influential are these people, really? How much is this kind of prophesizing around the end times actually pushing U.S. foreign policy?

SP: Evangelicals and particularly charismatic evangelicals like Hagee, people who believe in these prophetic statements, believe that they can receive direct prophecies from God. People who believe that in our midst are modern-day prophets and apostles who are receiving revelations from God that they need to then carry out in their personal or public life. This is a very significant part of the Republican base, and in particular, a very significant part of the Trump base.

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In contrast to other Trump supporters and other religious Trump supporters, they’re far more devoted to Trump. They are probably the most loyal to Trump, in part because they believe that he has been very loyal to them, and because they believe that he’s anointed by God to save America and the world.

Those two things are actually very tied together because of the way that both his presidencies have been very influencer, celebrity-driven. Being close to Trump for a burgeoning charismatic influencer is very important, because if you get a little boost from Trump, then more people will watch your YouTube, and more people will follow you on X, or whatever your social media platform is.

Those things are very tied together. It’s not just a one-way street. But Trump is very intermingled with that world. His top religious adviser and director of the White House Faith Office, Paula White, she comes from that world of televangelism and prosperity, gospel preaching, and signs and wonders and miracles — that charismatic Christian world.

So in many ways they are the most influential religious block on Trump, and that obviously is causing a little bit of consternation in the MAGA base currently.

JW: Yeah, that makes a lot of sense. One question I have, and this is a little bit of an aside, but is there a penalty for these people to continuously predict the end times?

That seems to be a large part of what we’re talking about with wars in the Middle East. Does anyone pay a price for that?

SP: Almost never. Typically, in this world, once somebody is considered a prophet and they make a prophecy, sometimes they’re right and sometimes they’re wrong. I think that’s why somebody like Hagee is so careful to say this is all God’s timing. A lot of them are careful to say things like, is this a sign of the end times? Might we be experiencing the end times? They phrase it in the form of a question instead of saying, “This is the thing that is definitely going to trigger the end times.”

I think from a marketing standpoint, consistently raising it as a question, it generates a little bit more anticipation and excitement. They’ve been doing this for decades, not just with regard to what’s going on in Iran, but just other things that might be a sign of the end times. So nobody really pays a price because their followers are invested in this world where anticipating and getting ready for, and thinking about and wondering when the end times will happen is just very much embedded in their culture.

JW: I’ve been wondering about the end times and these predictions. My mom is a former Catholic, so I was raised a little bit Catholic, a little bit Unitarian. So there was not all this lore.  

SP: Yes, this is definitely very much an evangelical thing and not a Catholic thing, and that is part of the reason why there is friction in the MAGA base over not just the Iran war, but Trump’s closeness with Netanyahu.

JW: You can see this growing division on the right more broadly among some of the loudest MAGA voices, questioning Israel’s influence in American politics. That criticism has been increasing as the Trump administration pursues its illegal war on Iran.

Recently you wrote about Candace Owens and Joe Kent, the former director of the National Counterterrorism Center, who resigned in opposition to the war.

Sarah, what do you make of the growing number of critical MAGA voices, and how they’re framing their opposition. What do you make of Owens in particular and her messaging? What’s the end game?

SP: Candace Owens is a raging antisemite. Every discussion of Owens needs to acknowledge that. So when she talks about being anti-Israel or being anti-Zionist, her criticisms are not just legitimate criticisms of the Israeli governments and the Israeli military’s actions. All of her criticisms are imbued with antisemitic conspiracy theories and rank antisemitism, Holocaust denial, that sort of thing. Just so that we’re on the table with that.

JW: Good disclaimer.

SP: But I think that she and some of her colleagues and allies in the far-right Catholic MAGA world are trying to do a sort of horseshoe thing, where they want leftists who are anti-Zionist or anti-Israel, to give them a pat on the back for being the right-wingers who have come out against Israel’s actions and Israel’s policies, and the American relationship with Israel. Owens and her allies are making this not just about Israel, but also about Catholics and evangelicals.

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For most mainstream Catholics, even conservative ones — ones who you might think of as being George W. Bush Republicans, they’re anti-same-sex marriage, anti-abortion, that sort of thing — but the Israel stuff just isn’t that important to them. She is trying to make it important to far-right Catholics. So she’s trying to make it important by starting a little intra-MAGA war between Catholics and evangelicals over this issue.

She and her allies have tried to make the argument that it’s a violation of their religious freedom to have to submit to or agree with these kinds of policies that Christian Zionists promote because that is not part of their Catholic faith. 

Now, it’s true that the whole end-times scenario that someone like John Hagee promotes is not part of the Catholic faith, but Owens always doubles down on the antisemitism on top of that. So it’s a complicated world.

The other thing about trying to determine how big is this MAGA rift, really. One thing that’s important to understand is that white evangelicals make up a huge part of a very important part of Trump’s base, and they’re very homogenous in this way. Eighty percent of white evangelicals voted for Trump, and a huge segment of them are Christian Zionists.

Catholics are more split 60-40, 50-50 on whether they’re Democrats or Republicans. And Catholic converts like Candace Owens, who are extremely far right, make up a very small segment of Catholics as a whole, even a small segment of Republican Catholics.

So I think when we’re trying to assess her influence, in a way we’re comparing apples and oranges because we’re trying to compare someone who has had a podcast and a huge following on Twitter for a few years with a movement that has spent decades making this end times theory, or this end times narrative, a core part of what their followers believe.

[Break]

JW: So now I want to talk about another kind of Christian right influencer: the Heritage Foundation, obviously the people behind Project 2025, but their new report is receiving less attention. It’s called “Saving America by Saving the Family: A Foundation For The Next 250 Years.”

This report outlines a vision that “restores” what they call the “natural family,” defined as marriage between a man and a woman, and how that mission is fundamental to saving America’s future. Can you talk about how we’re seeing that vision show up in policymaking and in bills like the SAVE [Safeguard American Voter Eligibility] Act?

SP: In terms of policymaking, I think that they’re trying to [push] a lot of small bore things through, say, the Department of Health and Human Services or the FDA. They want to try to ban mifepristone so that abortion will be inaccessible to people. They want to do things to promote adoption by Christian families instead of non-Christian families or instead of same-sex couples.

Every anti-LGBTQ policy is a furtherance of this “natural family” policy in that Heritage Foundation document. They want to, through anti-abortion measures, enforce motherhood for women and also create an image of the “natural family marriage between a man and a woman.”

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It’s an explicit anti-LGBTQ agenda, and they’ve been extremely, explicitly anti-trans. From their perspective, trans people threaten their whole idea of a binary sex — men and women, and that’s it. It explains a lot about why they’re going so hard after trans people’s rights.

With regard to the SAVE Act, I’m not sure what they’re doing there. Because the SAVE Act would punish women who took their husband’s names because then you wouldn’t be able to register to vote unless you got your birth certificate, which then your birth name wouldn’t match your current name. So it creates a whole host of problems. That to me is an odd thing for them to be pushing right now, but it’s also in line with a segment of the religious right, including Pete Hegseth’s pastor that believes that women shouldn’t even vote. But I feel like they’re stepping all over themselves with what they’re proposing in the SAVE Act.

JW: Yeah, and I wanted to get into that. The report doesn’t explicitly mention transgender people. They just say gender ideology throughout their entire Save the Family report. But it’s essentially just ragging on transgender people, queer people. A lot of ragging on feminists, birth control.

There’s obviously discussion of how to have more families, more kids.  But it almost seems more focused on enemies than it does on actually promoting kids and families. Should we understand it as a document that actually is trying to push for more kids and families, or is this about mandating a specific type of Christian lifestyle?

SP: The latter. In order to do that, they have to marginalize other people. So in their view, if trans people exist, then there is no binary between men and women in which these gender roles are very clearly defined and delineated.

JW: To you, it’s much more about, OK, how do we make people live the lives that we want them to live? And how do we find enemies who we can terrorize to make that happen?

SP: Well, think about it this way, that what they are proposing runs counter to the way American culture has been for the last 50 or 60, 70 years and runs counter to — not Dobbs, obviously, that’s an exception — but it runs counter to things that have become more accepted, like marriage equality and I wouldn’t include trans rights in that category because it hasn’t been accepted. I think that is what is driving them to create enemies, in order to make this “traditional family” seem more appealing to people or seem under threat by something.

If the traditional family is the ideal — where there’s a man and a woman and kids, and the woman stays home and doesn’t go to work and all of that — then all of these other people, women who don’t get married, single moms, trans people, same-sex couples, they’re a threat to that. They see it as a threat. They would consider a threat to their religious freedom because they think that their religion demands these kinds of family relationships. And so it’s a very radical document. I think that there are people within the administration who take it very seriously.

JW: We haven’t discussed race yet, and I think that’s always the kind of underlying thing in the corner when you’re talking about Christian nationalism, specifically white Christian nationalism. In this document they only mention Black people so much as to say, not enough Black people are getting married, that’s a problem, and then leave that to the side. They don’t mention race generally, but how do you view race in this vision?

SP: Overall, the Trump regime has attempted to completely eviscerate civil rights for Black people. I mean completely. Dismantling the Civil Rights Division at the Department of Justice, dismantling the Equal Employment Opportunity Commission. So I think within the context of this pro-natalist argument, it’s a paternalistic view. “It would be better for Black people if they also adhere to this traditional family structure.” I feel the 1980s are hovering over us right here, and that was when a lot of this pro-family, pro-natalist stuff of the modern religious right was hatched.

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But I think that it is a clear broadside just against any kind of culture that they consider to be non-compliant with their idea of the traditional family whether that’s women who have chosen not to get married, moms who’ve chosen not to get married. When you see how they’ve tried to marginalize, say, trans people from public life, this gives you a lot of insight into how they view, let’s say, non-complying people with their view of what America should be.

JW: While we’re talking about the Save the Family and the religious right’s views on marriage and family and race, in that regard, I also wanted to ask you about their views on immigration and race. How do you perceive the Christian right when it comes to this issue?

SP: White evangelicals are among Trump’s staunchest supporters when it comes to immigration. When you look at the polling data about their views of his position on immigration, in general, and in particular, the ICE crackdowns in Minneapolis and other cities, white evangelicals are among his staunchest supporters. And this is very much tied into their view of what a Christian nation is, and their acceptance of the argument, their embrace of the argument that undocumented people are necessarily criminals because just the act of having come here “illegally” is a crime. That is very much tied into their perception that America was founded as a Christian nation. Somehow that was taken away from us by many things that happened over the course of the 20th century, including immigration, including the Civil Rights Act, including women’s rights, LGBTQ rights, all of that. So when they talk about restoring the Christian nation, what they’re really talking about is restoring a white Christian nation.

JW: I want to get into the deeper, the broader impact of these groups. Your podcast Reign of Error illustrates how the Christian right isn’t a fringe movement, but how its various figures, groups, and sects are in the halls of power shaping policies and remaking America from local offices to the White House. 

Can you talk about the infrastructure the Christian right has been able to build over the years to wield that level of influence and policymaking?

SP: I think a lot of people think of the religious right as being a lot of megachurch pastors at the pulpit telling people how to vote and that it’s just people getting instructions every November and going to the polls and hitting the lever for the Republican candidate.

It’s much thicker and deeper than that because they have built mechanisms for creating and enforcing this political ideology, not only in their churches, but through television shows, conferences, books, and with the advent of social media, of course, YouTube, X, TikTok, all of the social media that they have at their disposal, and so you have that element of it. You have political organizations that work with religious leaders to recruit religious people, and even pastors to run for office and to organize voters to go to the polls on Election Day.

You have organizations that were created to counter institutions that liberals and the left had built. So to counter the ACLU, they founded the Alliance Defending Freedom, which has litigated most of the cases, producing some of the Supreme Court’s worst precedents in recent years, including the Dobbs decision. ADF was behind challenging the ban on conversion therapy in Colorado that the Supreme Court ruled on recently. 

So you have all of these things together. You have the Heritage Foundation, which was created back in the 1970s to counter the Brookings Institution — which is not really like a leftist organization by any stretch of the imagination, but that’s how they perceived it. So you have these different layers of convincing people and keeping them engaged in the political project and the political process. 

Then you also have on the legal front, not just these legal organizations, but Christian law schools that are educating the next generation of Christian lawyers who will go out and litigate these cases, maybe become judges. So they have built an infrastructure, a multi-layered infrastructure that is intended to be intergenerational, that’s intended to last for decades. That’s not intended only to run from election cycle to election cycle.

They spent 50 years to overturn Roe vs. Wade. They didn’t give up. They chipped away for many decades. When you think about that, they worked at the state level to chip away at it. They worked the legal process to chip away at Roe at the state level. They chipped away at abortion rights. 

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At the same time, when I talk about the multi-layered, they had institutions and organizations that helped train judges to rule from these right-wing perspectives, that would advocate for judges that were nominated to the bench by George W. Bush or Donald Trump to become District Court judges, appellate judges, Supreme Court justices. That’s what I’m talking about when I say it’s a multi-layered infrastructure because you have all of these things working together. There’s never a sense of victory like, “Oh, we got that done, yay us, and now we’re gonna take a break.” No, they did not even stop for a minute after they overturned Roe vs. Wade. Now they’re on to trying to ban mifepristone.

It’s important for people to understand that they never see any victory as their final achievement. It’s just one piece in a long road that they’re very dedicated to trotting.

JW: Given this relentlessness that you’re describing and the level of influence that we’re talking about here, especially even within the Trump administration, do you think that mainstream media is taking the Christian rights seriously enough?

SP: I don’t think the mainstream media has ever taken the Christian right seriously enough. They have consistently viewed Trump’s relationship with white evangelicals as ranging from harmless to purely transactional. When in fact, I think that they’re very deeply ideologically embedded with one another.

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It’s partially a function of a little bit of nervousness about even touching religion, that they don’t want to be seen as being critical of somebody’s religious beliefs or religious practices. But I think it has taken a long time for the media to wake up to how extreme they are and how successful they’ve been at capturing, not just the Republican Party but Trump in particular.

JW: That was really informative and pretty alarming, but we’re going to leave it there. Thanks, Sarah, for joining me on the Intercept Briefing. 

SP: Thank you, Jessica.

JW: To keep up with how the Christian right is shaping policy in the U.S. today, follow Sarah’s work at Talking Points Memo and her podcast Reign of Error, which I highly, highly recommend.

Before we go, we’d love it if you helped The Intercept Briefing win its first Webby Award for best news and politics podcast. So please vote for us. We’ll add a link to vote in our show notes. Thanks so much! 

That does it for this episode. 

This episode was produced by Laura Flynn. Ben Muessig is our editor-in-chief. Maia Hibbett is our managing editor. Chelsey B. Coombs is our social and video producer. Fei Liu is our product and design manager. Nara Shin is our copy editor. Will Stanton mixed our show. Legal review by David Bralow.

Slip Stream provided our theme music.

This show and our reporting at The Intercept doesn’t exist without you. Your donation, no matter the amount, makes a real difference. Keep our investigations free and fearless at theintercept.com/join. 

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Let us know what you think of this episode, or If you want to send us a general message, email us at podcasts@theintercept.com.

Until next time, I’m Jessica Washington.

The post Trump’s Holy War Abroad and at Home appeared first on The Intercept.

Several years later, the New England Journal of Medicine published a study confirming that transfers had skyrocketed from roughly 1,300 in 1980 to nearly 7,000 in 1983. The study supported what doctors had observed, according to the Chicago Tribune: “that private hospitals in the area are shirking their duty to provide care to the needy.” Reviewing some 500 transfers from private medical facilities to the Cook County hospital over a one-month period, the study found that the vast majority of patients were unemployed, and many had been transferred because they lacked the means to pay for health care. Eighty-nine percent were Black or Hispanic, 24 percent were medically unstable, and just 6 percent had consented to transport.

The Chicago doctors weren’t alone. Across the country, the transfer practice, known as “patient dumping,” had become a serious problem, especially for those in labor. “This was a full-term baby who would have been alive right now if the system hadn’t shuffled the mother around,” one doctor told the San Francisco Examiner in 1985 about a patient in labor who arrived at an Oakland hospital after being turned away from two other facilities. The baby was stillborn. “When she walked in here, I knew immediately something was really wrong,” the obstetrician said. “She was doubled over, holding her belly.”

The problem became so grave that Congress stepped in, passing the Emergency Medical Treatment and Active Labor Act, known as EMTALA. Still in effect today, the law is straightforward: It requires all hospitals that receive certain federal funds to conduct a medical assessment of every patient who shows up at the ER and, in a medical emergency, provide necessary stabilizing treatment. The law defers to medical professionals to determine when a medical emergency exists and what stabilizing treatments are needed.

EMTALA operates as a “point of rescue,” said Nicole Huberfeld, a professor at Boston University’s schools of law and public health. “It is the one law that we have that makes it so that anyone can get access to care when they’re having a medical emergency.”

For nearly 40 years, necessary stabilizing treatment under EMTALA has included abortion care. In July 2022, weeks after the U.S. Supreme Court overturned the right to abortion in Dobbs v. Jackson Women’s Health Organization, the Department of Health and Human Services posted a memo reiterating hospitals’ obligations under EMTALA. When a state had banned abortion but abortion was the stabilizing treatment a patient needed, the memo stated, EMTALA preempted the state law.

In a letter accompanying the guidance, Health Secretary Xavier Becerra assured providers that EMTALA “protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.”

“That’s the exact evil that Congress was trying to stop.”

But in a case pending before the Supreme Court, scheduled for oral arguments on April 24, Idaho claims that abortion is not protected under EMTALA, and that the federal government is interfering with state’s ability to ban the procedure. “The whole point of Dobbs was to restore to the states their authority to regulate abortion,” lawyers with the far-right Alliance Defending Freedom, who are representing Idaho, wrote in their brief. “Yet the administration seeks to thwart Idaho’s exercise of self-government on this important topic.” The claim that EMTALA covers abortion, they wrote, “is imaginary.”

If the court were to accept Idaho’s recasting of EMTALA, the safety-net law meant to eliminate discrimination in emergency medical care would be nullified, experts say, singling out pregnant people as a separate and unequal class of patients. Such a ruling would hobble the ability of medical professionals to respond appropriately to emergencies and encourage a new generation of patient dumping.

“Idaho’s arguments would make pregnant people second-class citizens in emergency rooms,” said Alexa Kolbi-Molinas, deputy director of the reproductive freedom project at the American Civil Liberties Union. “That’s the exact evil that Congress was trying to stop.”

In the wake of the Supreme Court’s decision to overturn Roe v. Wade, near-total abortion bans quickly took effect in several states, including Idaho, where the so-called Defense of Life Act bans all abortions save for those necessary to prevent the death of the pregnant person. During a legislative hearing on the measure in 2020, the law’s sponsor, state Sen. Todd Lakey, said the law included no exception for the broader health of the pregnant person because that was not as important as the life of the fetus. “I would say it weighs less, yes, then the life of the child,” he said.

“If we’re talking health of the mother, that’s a nuanced decision that could be something much less than life,” Lakey said. “If the decision was based solely on a question of some type of health, then you’re talking about taking the life of the unborn child, so that weighs more heavily than simply ‘health.’”

Idaho’s ban has placed health care providers in a precarious position. Violations of EMTALA’s mandate can result in hefty fines for doctors and hospitals and the loss of federal funding that facilities use to treat elderly patients and people with disabilities. Doctors who violate Idaho’s abortion ban, meanwhile, face criminal prosecution, two to five years in prison for each offense, and loss of their medical license.

The narrowness of the exception to Idaho’s ban prompted the federal government to sue the state in August 2022, arguing that the law impermissibly conflicts with EMTALA’s requirement that providers treat “emergency medical conditions,” not only those that pose “risks to life,” but also conditions that place a person’s health in “serious jeopardy.” The text of EMTALA clearly states that where conflicts with state law exist, the federal law takes precedence.

The government asked a federal district court to immediately block Idaho’s law from taking effect while the lawsuit was ongoing. The court agreed, enjoining the Idaho ban “to the extent that statute conflicts with EMTALA-mandated care.”

Idaho appealed the ruling and lost, prompting the state to ask the Supreme Court to intervene, which it did in January, lifting the district court injunction and scheduling the case for oral arguments.

In legal filings, Idaho points out that the word “abortion” is not included in the EMTALA statute, claiming there was no understanding that Congress meant to include abortion care among potential stabilizing treatments required under the law. In contrast, the statute does include the phrase “unborn child,” which according to the state, means that the well-being of the fetus must be weighed in addressing medical emergencies.

Idaho law doesn’t conflict with EMTALA at all, the lawyers argue, because Idaho regulates the practice of medicine in the state. EMTALA only requires doctors to provide stabilizing treatments that are “available” at a given hospital, and since abortion is illegal, it is thus unavailable. And because abortion is unavailable in Idaho, a hospital could legally transfer a patient somewhere else for care, presumably without being accused of dumping. Practically speaking, that would mean coordinating a transfer to a facility out of state and hours away.

Idaho claims the Department of Health and Human Services’ 2022 guidance was merely an attempt to legalize all abortion in the state. “A patient who wanted, but was denied, an abortion cannot wield EMTALA to force an emergency room to perform one,” reads the lawyers’ Supreme Court brief.

Huberfeld, the health law expert, who along with several other legal scholars filed an amicus brief supporting the federal government’s position, says Idaho is misinterpreting the law. EMTALA doesn’t contain the word “abortion” because, at the urging of medical professionals, Congress left the menu of stabilizing treatments to their discretion. At the time of EMTALA’s passage, abortion was protected care, and even states that had banned the procedure later in pregnancy included exceptions for the life and health of the pregnant person. Physicians have long “acknowledged their statutory obligation to provide abortion care in those rare emergencies in which terminating a pregnancy is the necessary ‘stabilizing’ treatment,” Huberfeld and her colleagues wrote.

The reference to an “unborn child,” meanwhile, is defined in the EMTALA statute — just not in the way that Idaho claims. “Three of the four mentions are specifically about taking into account the risks to the unborn child during labor when transferring a patient to another hospital,” said Kolbi-Molinas of the ACLU, which also filed an amicus brief in support of the federal government. The fourth mention is meant to ensure that a pregnant person in the ER will receive care for a pregnancy-related problem that is not currently placing their own life at risk. “So the hospital couldn’t say, ‘Well, you’re fine, so we’re just going to let your baby die,’” Kolbi-Molinas explained.

Those references are important, according to Huberfeld, because before EMTALA, hospitals were abandoning pregnant people in alarming numbers. “There were so many instances of people in labor being turned away from emergency departments and they and/or their newborns dying,” she said. “It was specifically addressed because the circumstances of patient dumping for people in labor were so egregious.”

For Idaho to suggest that Congress actually meant to shield hospitals from having to address the medical needs of pregnant people in favor of protecting the fetus “is like gaslighting,” Kolbi-Molinas said.

And the argument that state hospitals don’t have to provide emergency abortion care because Idaho regulates the practice of medicine turns EMTALA on its head. Huberfeld thinks the argument is bait meant to attract justices inclined to embrace the notion of state sovereignty. But EMTALA is tied to Medicare funding, she said, which hospitals do not have to accept. If they do, the funds come with strings — including EMTALA’s nondiscrimination guarantee. The law was designed to create “a national standard” because states were routinely discriminating against patients, leaving a patchwork of unequal care, Huberfeld said. “It’s the state variability that predictably leads to worse health outcomes for certain populations.”

Since the fall of Roe, stories of women being denied abortions during medical emergencies have become distressingly common, making clear that the scant exceptions in state bans are not enough to keep pregnant patients safe.

Such cruelty has been on regular display in Texas, including in the case of Amanda Zurawski, who nearly died twice and whose future fertility has been imperiled because of the state’s abortion ban. Zurawski’s water broke early, and the demise of her fetus was inevitable, but because Texas’s ban contained only vague language regarding medical emergencies, doctors said they had to wait until she was on death’s door to provide the abortion she needed.

Zurawski is one of several women who have sued Texas seeking to clarify the ban’s exceptions. The state has resisted, claiming the language is clear and that it’s doctors who are confused. Zurawski and 16 other women also signed on to an amicus brief in the EMTALA case as “living proof of the inadequacy of state law, which endangered rather than protected their lives.”

ERs are “discharging pregnant patients in medical emergencies, telling them to wait elsewhere until their health deteriorates.”

Meanwhile, Texas has also been fighting the federal government to limit EMTALA’s protections. But instead of being sued by the government, as Idaho was, Texas sued first.

Just three days after HHS posted its 2022 guidance, the state filed suit in the Texas Panhandle, where the case was certain to wind up before a Trump-appointed judge thanks to the quirks of the federal court system. Texas argued that the guidance was a blatant effort to create new law out of whole cloth that would “transform every emergency room in the country into a walk-in abortion clinic.”

The EMTALA guidance was hardly new, the government responded, and did nothing more than reinforce provider obligations under the law as written. Arguing that the case should be thrown out, the government noted that the state’s post-Roe abortion ban had yet to take effect — meaning Texas had no grounds to sue. The state’s wild claims that the government was somehow trying to mandate elective abortions was “a patent misreading of the guidance that bears no resemblance to reality.”

Nonetheless, the federal district court sided with Texas, and the 5th U.S. Circuit Court of Appeals agreed, effectively blocking the full protection of EMTALA in the state. How the Supreme Court rules in the Idaho case could also determine the outcome in Texas.

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Texas was joined in the lawsuit by two groups of anti-abortion doctors who previously filed a federal suit in the Panhandle challenging the Food and Drug Administration’s approval of the abortion drug mifepristone. As in that case, the doctors in the EMTALA lawsuit alleged that the federal government’s guidance might at some point conscript them into participating in an abortion in violation of their conscience. The Supreme Court, which heard oral arguments in the mifepristone case last month, seemed to doubt that the doctors’ dubious claims offered them legal standing to sue.

In the meantime, as Zurawski and others argue in their Idaho case brief, by denying pregnant people EMTALA protections, states with abortion bans are creating the very kind of discriminatory care that the law was meant to eradicate: “Emergency rooms are discharging pregnant patients in medical emergencies, telling them to wait elsewhere until their health deteriorates.”

While the Idaho Supreme Court has blessed the state’s abortion ban, claiming that it provides wide latitude for doctors to exercise their judgment, the broader political climate in the state is sending a more menacing message, according to the Idaho Coalition for Safe Healthcare.

Lawmakers have tried to insert fetal personhood language into state law and threatened to withhold funding from Boise after city officials said they would not prioritize enforcement of the abortion ban. The state’s attorney general said medical professionals who “assist” in abortion — even by referring someone to out-of-state care — could be prosecuted under the ban. As the number of preventable maternal deaths rose, the state disbanded its Maternal Mortality Review Committee. A group of so-called Freedom Caucus lawmakers penned a threatening letter to hospitals demanding to see abortion records.

A “culture of fear” has settled over the state’s medical professionals, said Dr. Caitlin Gustafson, a family medicine doctor trained in obstetrics and a member of the Idaho coalition. “We have targets on our backs for providing care in the moment that somebody is going to second guess,” she said. “It’s just untenable.”

“We have targets on our backs for providing care.”

Idaho is losing doctors at an alarming rate. Nearly 60 obstetricians stopped providing care in the 15 months following the ban’s imposition, and five of the state’s nine maternal fetal medicine doctors have left the state. Two hospital obstetrics programs have closed, and another is on the brink of closure, because hospitals could not recruit enough doctors to staff them.

Practicing in a rural community, Gustafson feels the weight of the state’s abortion ban, not only as a conflict with her duty to care for pregnant patients, but also for its impact on patients in need of other services. She said she’d just gotten word that another OB-GYN who provided consultation for rural patients was leaving the state, meaning that patients in need of routine services — hysterectomies, for example, or consultation for a “cancer scare” — will be forced to travel hundreds of miles for care. “We’re losing everything,” she said.

Gustafson has always recommended that her pregnant patients in rural areas carry “life flight” insurance in case they need emergency transportation to Boise. Now, she said, doctors across the state are recommending that all pregnant patients carry such insurance in case an emergency arises and they need to be transported out of state. “‘You mean if X, Y, or Z happens, I would have to go to Utah?’” she said patients have asked her. “‘I have two children at home. I have no family there, and I’m going to fly to a city I don’t know, and to doctors I don’t know, and that’s what you’re telling me is my only option?’”

“The level of financial, personal strain and distress this is creating and the inequality by default is tremendous,” Gustafson said. “It feels very unfair.”

Health care providers are trained to intervene in emergencies “to head off the risk of injury, illness, and death,” Huberfeld said, not to “wait until some is on death’s door to help them.” Idaho’s interpretation of EMTALA “is the exact opposite of what the law is supposed to do.”

The post Idaho Goes to the Supreme Court to Argue That Pregnant People Are Second-Class Citizens appeared first on The Intercept.

A retired North Carolina Supreme Court justice, Martin was a key adviser to Trump’s multi-pronged fight to overturn his loss in November 2020. In discussions with aides and administration officials, Trump considered Martin’s counsel as important as that of attorney John Eastman, who’s currently under indictment in two states and may be disbarred in a third. Trump so trusted Martin that another legal adviser name-dropped him to bolster his own pitches. 

As another election looms, one that is shaping up to be settled by courts, it’s crucial to examine the legal players who tried to reverse Trump’s defeat in 2020. But unlike Eastman and other Trump-aligned lawyers, Martin has largely escaped scrutiny for his contribution to the Big Lie effort, which culminated in a nine-minute call as Trump and his allies were still looking for ways to pressure former Vice President Mike Pence into handing Trump the election. 

Based on extensive review of records from the House Select Committee to Investigate the January 6th Attack and other sources, The Intercept pieced together the most exhaustive account of how Martin spent the weeks before the insurrection.

We found previously unreported details, including his ideological influence on a key MAGA state legislator, his central role in orchestrating a ludicrous Supreme Court challenge in coordination with the Trump campaign and White House staffers, and the extent to which Trump and his aides leveraged Martin’s reputation to pressure Justice Department officials. 

Despite all this, Martin is still a law school dean and active member of prestigious legal institutions, including ethics and election law committees. In May, a far-right group floated him as a potential Supreme Court nominee. 

Martin did not respond to any of The Intercept’s questions for this article. His current employer, High Point University in North Carolina, sent an identical statement to one previously given to other outlets: “Chief Justice Martin assured HPU that he never has, nor ever will, support a betrayal of the Constitution or an insurrection of any kind.” A university spokesperson declined to answer further questions.

In the past, Martin and his defenders have repeatedly invoked “confidentiality” to dodge questions while simultaneously claiming Trump and his campaign never retained Martin as an attorney. The Trump campaign also did not respond to questions about Martin’s role. 

Since Martin never represented Trump in court or signed any filings, his efforts were not subject to rules governing lawyers’ conduct in judicial proceedings. But retired justice Robert Orr, his former colleague on the North Carolina Supreme Court, thinks that given Martin’s prominence in the legal community, he should still account for what he did.

“I’m a big fan of candor,” Orr told The Intercept. “Considering what transpired on January 6, he has a responsibility as a law school dean and former chief justice to be more forthcoming.” 

From Jurist to Trumpist 

In January 2019, after 20 years on the North Carolina Supreme Court and four as its chief justice, Martin abruptly stepped down and took over as dean of Regent University Law School in Virginia, part of an evangelical Christian university founded by televangelist Pat Robertson. The move took some by surprise, particularly given the reputation Martin cultivated as a moderate, centrist Republican and longtime member of the elite American Law Institute. 

But Martin quickly took to his new role at a bastion of the conservative legal movement, where one of Trump’s attorneys, Jay Sekulow, was already on the faculty. Within weeks of starting at Regent, Martin appeared on Robertson’s television program twice to defend Trump against the Mueller investigation. 

Soon after the 2020 election, Martin joined a core group of attorneys workshopping legal theories to help Trump, according to testimony during Eastman’s disciplinary hearings in California. 

Martin reportedly came into Trump’s orbit via Mark Meadows, a fellow North Carolinian and the White House chief of staff, who was indicted in Arizona and Georgia after the 2020 election. The two go back at least to 2013, when Martin posted a selfie with Meadows to Facebook. (Meadows did not respond to The Intercept’s questions either.) 

Records from the January 6 committee and other sources show Martin had his fingers in multiple phases of the drive to keep Trump in power. One of his earliest contributions targeted state legislatures, which has not been previously reported.  

“This is huge and hugely important,” Eastman wrote in an email to Martin and other attorneys in a strategy thread about communicating with “the various State electors.” 

Martin had a particular influence on one Arizona state representative: Mark Finchem, who emerged as a leader among MAGA state legislators. 

Soon after Trump’s narrow loss in Arizona, records show Martin offered Finchem a theory: that the U.S. Constitution grants each state legislature “plenary,” or absolute, authority to choose presidential electors, no matter what else the state’s constitution or laws might say about the proper procedure to do so. 

This “plenary” theory, which cherry-picks from Supreme Court decisions dating back to the late 19th century, wove through various efforts by Martin and other attorneys aligned with Trump. It wound up becoming one of Finchem’s go-to arguments to deny the validity of the 2020 election results.

The strategy has largely been credited to Eastman, but Finchem attributed the “plenary” theory to Martin. 

An email obtained by The Intercept via public records request shows that communications between Finchem and Martin were underway by November 16, 2020. Finchem later told the January 6 committee that they were put in touch by another attorney advising Trump, Bill Olson. “This Mark Martin guy, he is a constitutional scholar,” Finchem recalled Olson telling him. “He’s worth listening to.”

Three days after emailing Martin, Finchem tweeted about his “plenary duty to act.” He argued that the Arizona Legislature could call itself into special session to investigate purported “fraud,” even without the governor or the supermajority vote required for such a session under Arizona law. 

By November 21, Finchem had written an entire memo about the plenary theory and its implications for his own power as a state legislator. He emailed it to Martin and the Trump campaign, along with two of his colleagues in the Arizona Legislature, according to January 6 committee records, and he credited Martin by name. 

“As articulated by retired North Carolina Supreme Court Chief Justice Mark Martin,” Finchem wrote in the memo, “the Constitution grants no role in directing the appointment of electors to the state’s executive or judicial branches. It is the plenary authority and obligation of the Legislature to do so. Since this authority and obligation is placed solely upon the Legislature by the highest law of the land, the Legislatures are not impeded by state statutes in fulfilling this duty.” 

In a version he later published online, Finchem attributes these as verbatim quotes to Martin. In his January 6 committee interview, he was somewhat evasive about their discussions. “I wouldn’t say that he helped me with the memo,” Finchem told the committee, adding that he had also reached out to Eastman and others as he wrote it. But his memo cites only Martin. 

Finchem would not answer The Intercept’s questions about Martin. “I don’t understand why you think it’s acceptable that I do your journalist research,” he said in an email. “If you have a question, reach out to Justice Mark Martin about the citation.” As with other issues, Martin didn’t respond when asked about Finchem. 

In the following weeks, Finchem tied virtually all of his efforts to his “plenary” authority. 

Unable to scrounge up enough votes for a special session, Finchem organized an unofficial “hearing” in a hotel ballroom in late November 2020, which he opened with a brief discussion of the plenary theory. 

In mid-December, he organized a faux “joint resolution” urging the vice president to accept an “alternate” slate of electors. This pseudo-resolution, which was printed on letterhead and signed by a smattering of GOP legislators, claimed that “the state legislature’s authority over the appointment of presidential electors is plenary.” 

But Finchem’s resolution was never actually voted on and adopted by a majority of the legislature, and the Arizona attorney general later characterized it as “fake.” But because of the plenary theory, these were all trivial technicalities to Finchem. 

“Once again, you go back to the question of plenary authority,” Finchem argued to the January 6 committee. “Does the body have to be in session for members to be recognized? And it was our belief that we don’t have to be.”

In the days before the insurrection, Finchem organized a letter asking Pence to “block the use of any Electors from Arizona.” The letter argued that legislators could “withdraw” their approval of these electors “under the same plenary power.” 

As late as February 2022, Finchem was invoking the plenary theory as grounds to “decertify” certain Arizona counties’ results from 2020. 

After the insurrection — during which he was photographed outside the Capitol building — Finchem faced considerable scrutiny, including ethics complaints and a lawsuit seeking to bar him from seeking office again, which were all ultimately dismissed. The Arizona attorney general’s office also gave Finchem a nod as “Unindicted Coconspirator 3” in the “fake electors” indictment, which named Eastman, Meadows, and more than a dozen other defendants in an ongoing case.  

Martin’s name is not among them, and he has never publicly accounted for feeding Finchem unhinged ideas about the “plenary” powers of state legislators.  

In 2023, the Supreme Court rejected an even milder variant of this notion, called the “independent state legislature” theory, by a 6-3 margin. Martin actually moderated a panel about the ruling for the American Bar Association’s election law committee, of which he is an emeritus member. 

Martin’s role in shaping and endorsing the “plenary” theory went entirely unmentioned during the ABA panel, as did his other efforts to help Trump. One panelist said he was unaware of Martin’s efforts after the 2020 election.

“Mark’s been very good about being friends in elite circles,” said Orr, his former state Supreme Court colleague. “It’s one of the main reasons I think he’s been able to dodge much inquiry.” 

Martin’s “Brainchild” 

Martin’s involvement didn’t stop with state legislators like Finchem. Operating under the same fringe version of the plenary theory, Martin was also deeply enmeshed in efforts to drag the post-election battle before the Supreme Court. 

In prior reporting about the Trump campaign’s Supreme Court machinations, Martin has often been cast as a relatively minor player. But one key lawyer, Kurt Olsen, testified that Martin was his entry point to the project of developing a lawsuit for Republican state attorneys to file directly to the Supreme Court. In an online radio interview, another attorney, Don Brown, called it Martin’s “brainchild.” And as he pitched the lawsuit to Republican state officials, records show Brown called the team behind it “Mark Martin’s group.” Other emails show Martin called one state attorney general himself, and he was part of discussions with the Trump campaign about the lawsuit. 

The Intercept’s review of records found that this group even asked White House speechwriters like Stephen Miller to help with punching up the language. And as Trump and his allies tried to engineer a Supreme Court case, they traded repeatedly on Martin’s name and reputation as a retired judge and law school dean. 

Their strategy was to fast track the case via the Supreme Court’s “original jurisdiction” over disputes between states, which means the case would not need to go through lower federal courts first. In early December 2020, Texas Attorney General Ken Paxton filed the suit, Texas v. Pennsylvania. 

The arguments had a familiar ring to them, grounded in the plenary theory. 

“The power to select electors is a plenary power of the State legislatures, and this remains so, without regard to state law,” Paxton’s brief argued. He alleged a range of “significant and unconstitutional irregularities” in Pennsylvania and three other states won by Joe Biden, and that these states had violated their respective legislatures’ plenary authority by, among other things, adjusting voting rules in light of the Covid-19 pandemic. 

The Supreme Court quickly declined to hear the case, which was, as one election law professor summarized, “Dangerous garbage, but garbage.” 

Martin had joined the effort weeks earlier, soon after the 2020 election, according to testimony from Eastman’s disciplinary hearings. By late November 2020, Martin was helping shop the “state v. state” idea around to Republican attorneys general in at least three states — including South Carolina, Louisiana, and Texas — according to materials from the January 6 committee and emails obtained through public records requests by American Oversight, Mount Holyoke College, and the New York Times.  

“Former CJ Martin called me last night to give me an update,” South Carolina Attorney General Alan Wilson wrote to Brown two days before Thanksgiving. Brown had emailed Wilson earlier to discuss his work with “former NC Chief Justice Mark Martin’s group.”  

“Glad CJ Martin called,” Brown replied, adding that he had “heard from one of the attorneys today working under CJ Martin” that “Texas is warming up to maybe jumping on board.” 

In a brief interview with The Intercept, Brown said Martin was “certainly one of the most brilliant legal minds I’ve ever known.” He did not respond to subsequent questions, nor did Wilson’s office.  

Martin was eager to brief Wilson, according to Brown’s emails, as was Mike Farris, who at the time was the president of the right-wing Alliance Defending Freedom. “Chief Justice Martin indicated that if it were possible, he and Mike would be pleased to have a phone conference,” Brown wrote. He promised that Martin’s group would send a “much-improved” analysis, including a study that Martin told Brown had been authorized “at the highest levels,” which Brown wrote that he took to mean it was commissioned by the White House.

“The CJ tells me it will be more difficult for the opposition to punch holes in the evidentiary conclusions,” Brown wrote. 

The group also tried to court Louisiana’s then-solicitor general and now-attorney general, Elizabeth Murrill. A few days before Thanksgiving, another right-wing attorney, Phillip Jauregui, emailed Murrill with an offer to brief her on the draft filings, which he attached. Martin was included in the back-and-forth. 

A spokesperson said Murrill never spoke to Martin directly. “I could not pick him out of a lineup,” Murrill said in an emailed statement. 

Martin also helped woo the Texas attorney general’s office to file the contrived lawsuit. As the group was doing so, they looped in both the Trump campaign and White House staff. Alex Cannon, a lawyer for the Trump campaign, told the January 6 committee that Martin was part of emails discussing “a Texas-only complaint” in late November 2020. Cannon also recalled having a phone call with Martin and another attorney, Kurt Olsen, about the lawsuit.  

On December 5, Olsen emailed the Trump campaign again, copying Martin, looking for evidence to “make the complaint more persuasive.” 

“This is a complaint to be sent to Texas tomorrow at noon, and it’s our last shot,” Olsen wrote to Cannon. Paxton’s office did not respond to The Intercept’s questions. 

The group asked Trump’s speechwriters to put the finishing touches on the briefs, according to testimony to the January 6 committee. Farris sent edited copies to Trump’s executive assistant on December 4, who passed them along to Miller and other speechwriters. Miller, who is not an attorney, told the January 6 committee his speechwriters were “asked to revise the preamble” of the complaint, which he did not find odd “in the least.” 

Three days later, Paxton filed a complaint to the Supreme Court on behalf of Texas. Many passages were identical to drafts circulated by Martin’s group to Louisiana and South Carolina officials, down to an arcane quote from John Adams and claims about “outcome-determinative” fraud. 

The briefs included an eye-popping and statistically ridiculous claim to the Supreme Court, which Olsen later testified that he wrote: that Biden’s probability of winning these four states was “less than one in a quadrillion.” The economist cited for this figure later disavowed the briefs, writing that his analysis did “not support what Paxton claimed about Trump winning.”

Paxton retained two of the attorneys who worked with Martin, Kurt Olsen and Larry Joseph, as “special counsel” for Texas, and they both attached their names to Supreme Court filings. Martin, however, never signed any of the briefs.

Paxton and one of his deputies are still fighting misconduct charges over the case, which the Texas bar’s disciplinary counsel alleged contained “dishonest” assertions about purported voter fraud as well as “misrepresentations and false statements.” Complaints were also filed against Olsen in July. 

Earlier this year, a California judge ruled Eastman tried to mislead the Supreme Court when he filed a brief on Trump’s behalf in the case, which endorsed certain false statements from the Texas briefs. (Olsen testified that Martin may have consulted on Eastman’s brief too.) Eastman has appealed the ruling, which recommended that he be disbarred.

But Martin — who, by Brown’s account, oversaw the broader effort — has faced only intermittent scrutiny by the press.

“The rule of law allows individuals and parties to contest election results in court if they believe the results were inconsistent with the law,” he told Inside Higher Ed in 2023. “This is how the rule of law works, and this is what I support. It is consistent with who I am, my life’s work, and the oath that I have taken to support the Constitution.”

Trump “Trusts Their View”

Even after the Supreme Court refused to take up the Texas complaint, Martin did not give up on the plenary theory. Records show he urged Trump to try another tack: order the federal Justice Department to file essentially the same lawsuit straight to the Supreme Court.

On Christmas Day, attorney Bill Olson, who had previously introduced Finchem and Martin, called Trump to discuss the strategy, according to a memo Olson sent to Trump. (Olson did not respond to The Intercept’s questions.)

“You told me you would then call Mark Martin, former Chief Justice of North Carolina, to discuss the concept further,” Olson wrote. “I know you called Mark Martin, and that he supported filing the case.”

Trump then brought the idea to the Justice Department. When DOJ leaders balked at the threadbare underlying theory, Trump and his aides leaned on Martin’s endorsement. 

In a December 27 call, Trump brought up Martin, former Acting Deputy Attorney General Rich Donoghue told the January 6 committee. “He’s a real ‘scholar.’ He knows about this stuff,” Donoghue recalled Trump saying, in testimony peppered with quotes from his handwritten notes. 

Two days later, on December 29, Donoghue and Jeff Rosen, the acting attorney general, met with Mark Meadows at the White House to discuss the proposal. Martin’s support for using DOJ to file the suit came up almost immediately, according to Donoghue’s notes, along with Eastman’s blessing.  

“Mark Martin and John Eastman, they were attorneys of some sort that had, according to the chief of staff, some views or insights about whether or not this original jurisdiction case could be brought at the Supreme Court,” Donoghue testified. 

Trump “trusts their view,” he jotted down in his notes.

Rosen recalled Meadows being more emphatic. 

“Well, Mark Martin and John Eastman, who are, you know, these great legal scholars, think it’s a great idea,” Rosen told the committee, paraphrasing Meadows. 

Trump’s assistant sent Rosen and Donoghue a draft filing to review. Kurt Olsen also sent a copy, which he said Trump had already reviewed and was “modeled after the Texas action.” 

The proposed draft, which now targeted six states instead of four, had striking resemblances to the document recently swatted away by the Supreme Court, down to the “one in a quadrillion” line and the full-throated reliance on the plenary theory. 

On top of the lack of credible evidence, Justice Department officials flagged an even more fundamental problem: The federal government had no viable grounds to file the lawsuit, and even weaker ones than Texas claimed. 

“We cannot ethically file a suit without a legal basis, and we are certain that if we did so, the Justices would promptly dismiss it,” advised a top DOJ lawyer, Steve Engel, in a memo later released by the January 6 committee.

“Anyone who thinks otherwise simply does not know the law, much less the Supreme Court,” Engel wrote. “This case is not even within its original jurisdiction.”

After a heated call with Olsen, Rosen and Donoghue explained to Trump why, despite Martin’s support, the Justice Department could not file this lawsuit that would benefit his campaign. 

“I wound up telling the President, ‘This doesn’t work. There’s multiple problems with it. And the Department of Justice is not going to be able to do it,’” Rosen testified. 

Pence and “The January 6 Strategy” 

As it became clear that courts were not a viable route, Martin joined Eastman and a cast of familiar characters in looking for ways to use the vice president to overturn the election. This final chapter of Martin’s involvement culminated in his call with Trump on the evening of January 6. 

“Martin advised President Trump that Vice President Pence possessed the constitutional authority to impede the electoral count,” the January 6 committee wrote in a footnote to its final report, citing reporting from the New York Times. Martin has repeatedly declined to address what he and Trump talked about as Pence was preparing to bring the Senate back into session. 

But in the weeks leading up to the insurrection, records show Martin was part of discussions about how best to leverage Pence. In late December 2020, as the Justice Department ploy was unraveling, Martin was on an email thread with Larry Joseph, who asked for help workshopping yet another lawsuit.

This one, which Joseph filed on behalf of Rep. Louie Gohmert, R-Texas, asked a federal court if Pence had to follow the law and count the electoral votes, or if the vice president was free to discard some. 

Eastman and Bill Olson, who were also on the thread, thought this lawsuit was a terrible idea. It “could completely tank the January 6 strategy,” Olson wrote. Eastman agreed there was a “very high” risk that courts would rule “that Pence has no authority to reject the Biden-certified ballots.” Martin did not share his own views of the lawsuit in the emails released by the January 6 committee.

The next week, Joseph went ahead and filed the suit anyway, which the court quickly dismissed for lack of standing. Disciplinary charges are currently pending against Joseph in Washington, D.C., over that lawsuit. 

In a subsequent “war gaming” memo for potential scenarios on January 6, Eastman emphasized that it was important for Pence to derail the vote count “without asking for permission” from a court or Congress. 

“The illegality of the plan was obvious,” a federal judge later wrote of Eastman’s role. 

Many Trump-aligned attorneys worked to pressure Pence, both in direct appeals to Pence and indirectly through state legislators like Finchem. During this period, Martin’s name also comes up in January 6 committee records. 

On January 2, Eastman and other Trump-aligned attorneys briefed more than 300 state legislators over Zoom, which Trump also joined. Eastman urged the legislators to “assert your plenary power” and demand that Pence delay the electoral vote count, according to an email from the call’s organizer. 

Martin may also have been part of that briefing, based on transcripts from multiple interviews with the January 6 committee. “I believe Mark Martin was on the call,” a committee investigator told White House aide Casey Hutchinson, who said she was unfamiliar with what happened during the Zoom meeting. Investigators told two more witnesses that Martin was on the briefing call, but neither witness confirmed that fact.

The call’s organizer, former Kansas Attorney General Phill Kline, who lost his law license in 2013 for misleading a grand jury and other misconduct, told The Intercept he could not recall if Martin joined Eastman on the call. 

On January 4 and 5, Trump and Eastman tried to convince Pence that he had authority over the outcome of the presidential election far beyond what’s spelled out in the Constitution and federal law. Pence’s attorney, Greg Jacob, who refuted such theories based on what the law actually says, told the January 6 committee that Martin was not part of these discussions. 

During at least one conversation with Pence leading up to January 6, Trump reportedly invoked Martin’s view that Pence could throw out electoral votes that were contested. The New York Times did not name its source for this claim. 

On January 6, after Trump attacked Pence by name in tweets and a furious speech on the Ellipse, the vice president publicly rejected the pressure campaign. Pence issued a public letter declaring that his role was “largely ceremonial” and limited to counting the electoral votes. Soon after, Trump supporters breached the Capitol with chants of “Hang Mike Pence!” and the Secret Service rushed Pence and his family to a secure location.

That evening, after tweeting a video telling his followers to leave the Capitol but still looking for ways to pressure Pence before the Senate reconvened, Trump told the White House switchboard to get Martin and Kurt Olsen on the phone. Records show Trump gave this order at some point before 6:27 p.m., when he left the Oval Office dining room to retire to the presidential residence on the second floor of the White House. 

The January 6 committee asked multiple witnesses what Trump and Martin discussed at 7:30 p.m. that evening, including Ivanka Trump, one of Trump’s aides, and a White House lawyer. None could say. 

Martin’s nine-minute call with Trump was sandwiched between Trump’s two discussions with Olsen, who spoke with the former president for a total of 21 minutes. Olsen, who fought his January 6 committee subpoena, did not answer The Intercept’s questions about what he and Trump spoke about that night.

And Martin still won’t say either. 

No Subpoena, No Foul? 

Unlike so many of the other attorneys who have been at least called to answer for their role seeking to keep Trump in power — including John Eastman, Rudy Giuliani, Kurt Olsen, Bill Olson, Ken Paxton, and Larry Joseph, to name just a few — Martin has faced only withering op-eds and a brief campaign against his selection to lead High Point University’s new law school, which the school shrugged off.

The final report of the January 6 committee, published in December 2022, barely mentions him. In fact, the committee never subpoenaed Martin or called him for an interview, unlike every other person Trump spoke with the evening of the insurrection. 

“How do you not follow up?” Orr wondered about the committee’s failure to talk to Martin. “On January 6, Trump was very selective in who he’s talking with. He’s the president.”

Martin and High Point University like to note this fact to deflect questions about Martin’s involvement. 

“As it relates to the events of Jan. 6,” High Point said in its recycled statement to The Intercept, “more than 1,000 people were interviewed as part of the thorough work of the House Select Committee, and Mark Martin was not one of them.” 

High Point had no response, however, to questions about how frequently Martin’s name came up in the committee’s investigation. The January 6 committee asked at least 17 witnesses about Martin, and they sought documents and information about him in subpoenas to key witnesses. 

Meadows, who defied his own subpoena and refused to testify, was told he would be deposed about the “theories and/or understandings” of both Martin and Eastman regarding the constitutional role of the vice president. The committee also mentioned Martin by name in subpoenas to Pennsylvania state Sen. Doug Mastriano, former national security adviser Mike Flynn, and Peter Navarro, Trump’s trade adviser who went to prison for four months for defying his subpoena.

Rep. Bennie Thompson, D-Miss., who chaired the January 6 committee, called it “disingenuous” for Martin to claim he is “absolved of anything” just because he never got a subpoena. 

“Regardless of how they would now like to distance themselves,” Thompson said in a statement, “all of these conspirators know their shame, and I look forward to the day when they are all held accountable.”

The post The Law School Dean Who Quietly Worked to Overturn the Election appeared first on The Intercept.

The restrictions, which were set to take effect at midnight, would have had sweeping and detrimental consequences for already-strained abortion access nationwide. The 7-2 Supreme Court ruling, with Justices Samuel Alito and Clarence Thomas dissenting, ensures that the critical drug will remain available until further review by the conservative 5th Circuit Court of Appeals, which plans to hear oral arguments on May 17. Legal experts note the case could make its way back to the Supreme Court in the coming months.

The drug mifepristone — part of the most common method of pregnancy termination in the U.S. — is at the center of an ongoing legal battle between the Biden administration and ideological right-wing judges and advocacy groups who want to see its availability severely diminished.

Reproductive rights advocates expressed satisfaction with the temporary order, but also deep caution. “This is very welcome news, but it’s frightening to think that Americans came within hours of losing access to a medication that is used in most abortions in this country and has been used for decades by millions of people to safely end a pregnancy or treat a miscarriage,” said Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project. “Patients shouldn’t have to monitor Twitter to see whether they can get the care they need. Make no mistake, we aren’t out of the woods by any means. This case, which should have been laughed out of court from the very start, will continue on.”

The legal tug-of-war began when Trump-appointed U.S. District Judge Matthew Kacsmaryk, based in Texas, ruled earlier this month to revoke the U.S. Food and Drug Administration’s approval of mifepristone, the first in a two-step abortion medication regimen taken early in pregnancy. Echoing the arguments of the anti-abortion plaintiffs who filed the suit, Kacsmaryk aggressively questioned the safety of mifepristone, claiming that the FDA rushed approval of the drug.

Those claims have been widely refuted by the medical community: Mifepristone, approved two decades ago, is one of the most studied drugs on the market, with a safety track record similar to ibuprofen and acetaminophen. The risk of serious complications falls below 1 percent. More than 3.7 million women have used the drug since it became available in the U.S., and its use is backed by major medical organizations including the American Medical Association and the American College of Obstetricians and Gynecologists. In his 67-page ruling, Kacsmaryk pulled from dubious anti-abortion sources and employed medically inaccurate and inflammatory rhetoric — including the term “unborn baby” rather than fetus — to make his case.

After an appeal by the U.S. Department of Justice, the 5th Circuit Court of Appeals temporarily blocked Kacsmaryk’s call to suspend FDA approval, but it placed several limitations on the drug that would have rolled back years of FDA progress to widen access to abortion medication. A three-judge panel on the New Orleans-based court sought to impose restrictions that included blocking its use past seven weeks of pregnancy, rather than the FDA-approved 10 weeks; requiring in-person office visits to dispense the drug; and banning its delivery via mail.

Attorneys with the Alliance Defending Freedom, the conservative Christian legal group that represents the plaintiffs, applauded the 5th Circuit’s decision, calling it “a significant victory.” The group has signaled that it hopes the courts revive the long-dormant Comstock Act, an 1873 anti-obscenity law that bars the mail shipment of abortion materials. The zombie law is seen by anti-abortion advocates as a gateway to a nationwide abortion ban through the judiciary.

The Biden administration asked for emergency relief from the Supreme Court, warning that the restrictions would create “profound disruption and grave harm.” Alito — who handles 5th Circuit emergency appeals — paused the ruling from taking effect last Friday and extended the temporary halt until today.

Were they to go into effect, the nationwide limitations sought by the 5th Circuit would have applied even to states where abortion remains legal and pushed abortion care further out of reach for patients in states where the procedure is banned.

The Biden administration and Danco — the brand-name distributor of mifepristone — cautioned that upholding the ruling would throw the drug into regulatory “chaos” and cut off access to the pills for months while Danco re-labeled the drug and obtained other approvals. The 5th Circuit ruling would  have forced the FDA to reinstate a “now-obsolete and unfamiliar” regimen that includes higher doses of mifepristone than needed, undercutting the plaintiff’s ostensible concerns about safety. The Justice Department and Danco also warned that the ruling could create a dangerous precedent for other drugs on the market, making them vulnerable to ideologically motivated judicial attacks.

Adding to the growing legal battles over abortion pills, GenBioPro, the generic drug manufacturer of mifepristone, sued the FDA in Maryland federal court on Wednesday to force the regulatory agency to preserve access to the drug, writing that revoking its approval based on a court order would not only be unprecedented, but would also inflict “catastrophic harm” on patients and providers. The manufacturer supplies roughly two-thirds of the drugs sold in the U.S.

The Texas case, known as Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, has been criticized for “forum shopping.” Kacsmaryk is a longtime anti-abortion advocate, board member of a non-medical Texas crisis pregnancy center, and former attorney with religious-right legal group, the First Liberty Institute. The Alliance for Hippocratic Medicine, the only Texas-based organization that is part of the suit, incorporated itself in the Panhandle city of Amarillo — where Kacsmaryk is in charge of hearing all federal civil cases — just months before challenging the approval of mifepristone, adding to evidence that the plaintiffs cherry-picked a conservative court that would be favorable to their arguments.

The post Supreme Court Places Abortion Drug Restrictions on Hold — For Now appeared first on The Intercept.

The Alliance incorporated in Amarillo in August 2022, bringing together five out-of-state anti-abortion groups: the Catholic Medical Association, the Coptic Medical Association of North America, the American College of Pediatricians, the Christian Medical & Dental Associations, and the American Association of Pro-Life Obstetricians and Gynecologists. Three months later, the lawsuit was filed in the same Texas Panhandle city where Kacsmaryk hears all federal civil cases.

The lawsuit alleges that in 2000, the Food and Drug Administration, or FDA, wrongly approved mifepristone, the first of two drugs that make up the standard medication abortion protocol. The groups also argue that sending abortion medications through the mail violates federal criminal law. To advance their argument, the plaintiffs have assembled a raft of dubious evidence to allege that the FDA is anti-science and mifepristone is a wildly dangerous drug, despite decades of scientific research and hundreds of medical studies that demonstrate otherwise. They have dished it all up for a federal judge who, in just a short time on the bench, has developed a reputation for factitious legal opinions. A ruling in their favor could see medication abortion all but banned across the U.S., sparking a new round of chaos after the fall of Roe v. Wade and laying the groundwork for the dispute to land before the U.S. Supreme Court.

Suspect Assertions

Medication abortion is a two-drug protocol designed for use in early pregnancy termination. The first drug, mifepristone, blocks progesterone (a hormone needed to maintain pregnancy) and softens the uterine lining; the second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy.

The regimen was developed in France in the late 1980s, but it wasn’t until 2000 that the FDA finally approved it for use in the United States. Medication abortion accounted for just 5 percent of abortions in 2001 but has steadily grown in popularity; today, medication abortion accounts for more than half of all pregnancy terminations in the country. The protocol is also commonly used for miscarriage management.

The FDA has enforced a slew of restrictions tied to mifepristone that advocates and providers have long argued are medically unnecessary — including a rule that it must be dispensed in person, even though misoprostol is not taken until later at a place of the patient’s choosing. During the pandemic, the in-person dispensing rule was blocked, and in December 2021, the FDA announced that it was permanently lifting the requirement. The agency has since taken additional steps to expand access to medication abortion by allowing mail-order and brick-and-mortar pharmacies to dispense it to patients with prescriptions in states where abortion is legal.

It was against this backdrop that the Alliance for Hippocratic Medicine, its partner organizations, and several individual doctors — represented by lawyers with the Christian-right Alliance Defending Freedom — filed suit in Texas, arguing that the FDA never should have approved mifepristone in the first place, let alone expand its use or loosen dispensing requirements.

The filing is a jumbled mess of suspect assertions, cloaked in inflammatory and medically inaccurate language. The filing refers to medication abortion as “chemical” abortion and claims that mifepristone “starves the baby to death.” It alleges that medication abortion is far riskier than procedural abortion or carrying a pregnancy to term, which the plaintiffs argue “rarely” leads to threatening complications. They call mifepristone an “endocrine disrupter” that could threaten the normal development of adolescents who take it. And they assert that individuals suffering complications from medication abortion could “overwhelm” the health care system, leading to a flood of blood transfusions that “exacerbates the current critical national blood shortage.”

These allegations are baseless. An endocrine disrupter is a chemical that mimics or interferes with the body’s hormones, such as PFAS, a class of toxic “forever” chemicals found in dozens of common products that has been linked to cancer and other illnesses. The notion that mifepristone — taken in a single dose — falls into this camp because it “briefly blocks progesterone receptors in the uterus is completely unfounded,” according to an amicus brief filed in the case by the American College of Obstetricians and Gynecologists, the American Medical Association, the American Academy of Family Physicians, and eight other leading U.S. medical groups. “There is no reason to think, nor is there evidence to show, that preventing the absorption of progesterone for a brief window would have any effects on adolescent development,” the brief states.

“Mifepristone’s safety profile is on par with common painkillers like ibuprofen and acetaminophen, which more than 30 million Americans take in any given day.”

The assertion that medication abortion is a risky and understudied endeavor recklessly approved by the FDA is equally spurious. To date, mifepristone has been used in more than 630 published clinical trials, including more than 420 randomized, controlled studies, which the amicus brief notes are the “gold standard of research design.” At less than 1 percent, the risk of serious complications is exceedingly low. The likelihood of any complication at all is about 5 percent; the most common is an incomplete expulsion, which may require a procedural abortion to complete. Meanwhile, the risk of death associated with carrying a pregnancy to term is 14 times higher than the risk associated with abortion.

“Mifepristone’s safety profile is on par with common painkillers like ibuprofen and acetaminophen, which more than 30 million Americans take in any given day,” according to the amicus brief. Procedures like wisdom teeth removal, colonoscopy, and plastic surgery have higher complication and death rates, as does the use of Viagra. “Put simply,” the brief states, “medication abortion is among the safest medical interventions in any category — related to pregnancy or not.”

Behind the Scenes

The fight over abortion has long featured a shadow medical community that exists to promote counterfactual narratives about risks associated with the procedure. To Mary Ziegler, a law professor and legal historian at the University of California, Davis, the fact that the Alliance for Hippocratic Medicine was established to go after medication abortion isn’t surprising.

“There’s a tradition of groups like this forming,” Ziegler said. Back in the 1990s, for example, a group called the Physicians Ad Hoc Committee for Truth sprang up for the purposes of advocating for a ban on dilation and extraction abortion, which anti-abortion forces dubbed “partial-birth abortion.” Once Congress passed the ban, the committee disappeared.

While the Alliance for Hippocratic Medicine itself is a new entity, presumably incorporated to bolster the pending lawsuit, the groups organized under it have been around for a long time. The American Association of Pro-Life Obstetricians and Gynecologists, known as AAPLOG, formed in the wake of the 1973 Roe decision, initially as an affinity group of anti-abortion physicians who belonged to the American College of Obstetricians and Gynecologists, or ACOG, the country’s leading professional membership organization for OB-GYNs.

Over time, AAPLOG began to push back against the medical and scientific establishment, developing a narrative that abortion was not only immoral, but also dangerous. The group focused more on disputing the “factual premises of things ACOG was saying, rather than just disputing the morality or ethics of those decisions,” Ziegler said. “Medical arguments against abortion bans were effective enough that they needed to be met with medical arguments for abortion bans,” she explained. “There’s an appetite for these organizations to have their own narratives.”

AAPLOG has since split from ACOG and now has roughly 7,000 members compared to ACOG’s more than 60,000 (anyone can join the former, while the latter’s membership is limited to medical professionals). Despite its size, AAPLOG has successfully pressed its counternarrative in legislative and legal crusades to restrict or ban abortion, even when the scientific underpinning for its position is shaky.

Take the work of George Delgado, one of the named plaintiffs in the Alliance for Hippocratic Medicine lawsuit. A doctor in Southern California, Delgado developed so-called abortion pill reversal: the notion that a person who changes their mind about going through with a medication abortion after taking mifepristone (but before taking misoprostol) can interrupt the process by taking a large dose of prescription progesterone to reestablish the pregnancy. There is no evidence that the protocol is safe or effective; the only controlled study designed to interrogate it was halted based on “safety concerns” after three of 12 participants hemorrhaged and were taken to the hospital. Still, AAPLOG has deemed medication abortion reversal a “medically sound choice” and supported state efforts to mandate counseling on reversal for anyone seeking abortion.

“When you have arguments about science that are not based that much in evidence, not only is it confusing and obviously can lead to really bad outcomes, but it’s also disenfranchising.”

While the alternate narratives pushed by groups like AAPLOG may be politically powerful, they are also dangerous, offering the imprimatur of science without sound foundational support. “When you have arguments about science that are not based that much in evidence, not only is it confusing and obviously can lead to really bad outcomes, but it’s also disenfranchising,” Ziegler said. “Because normal people don’t know anything about these topics, right? They don’t know about the relative rate of complications of mifepristone. And so if what’s really going on here is a struggle over constitutional values and ethics and so on, we should be telling the truth about that.”

The shadow medical community’s efforts to legitimize various abortion restrictions have been effective — like a requirement that abortion doctors maintain hospital admitting privileges, which groups including AAPLOG claimed was a best practice designed to ensure patient safety. Broadly speaking, such efforts worked in front of state lawmakers but typically failed at the Supreme Court.

Now, with Roe in the rearview mirror and no immediately obvious need to keep pressing such pseudoscience, Ziegler suspects that groups like AAPLOG are still leaning into these arguments because their real aims — like establishing fetal personhood rights — “are still not popular,” she said. Anti-abortion ballot measures have repeatedly failed with voters, and a significant majority of Americans say abortion should be legal in all or most cases. “And so they’re having to take their claims to courts and to judges like Judge Kacsmaryk … and they’re having to rely on weird interpretations of FDA regulations.” This is “not a window into what they think is the most important,” she said, but “what they think will work.”

A Slippery Slope

Before being tapped to serve as the federal district court judge in Amarillo, Kacsmaryk worked at the religious-right First Liberty Institute, which, among other things, opposes the separation of church and state. Kacsmaryk has been vocal about his disdain for gay marriage, reproductive rights, and transgender people. In 2016, he signed onto a letter that called being transgender an “irrational … delusion” (the Catholic Medical Association, which is a party in the mifepristone lawsuit, was also a signatory). And he’s written that the sexual revolution was destructive, seeking “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”

In the Title X case, Deanda v. Becerra, Kacsmaryk sided with Texas father Alexander Deanda, who was challenging the program based on its guarantee of patient confidentiality. Deanda claimed that the program violated his rights as a parent raising his daughters according to “Christian teaching on matters of sexuality.” With Title X in place, he argued, he had no assurance that his daughters would be “unable to access … contraception” and other services that “facilitate sexual promiscuity.”

Among the criticisms leveled at Kacsmaryk in the wake of his ruling in favor of Deanda was that he lacked power to consider the case in the first place. To bring a federal lawsuit, a plaintiff must show they’ve been injured by the law they’re challenging, but Deanda — who never alleged that his children attempted to avail themselves of Title X services — hadn’t been harmed. Deanda had no standing to bring the suit, in other words, and Kacsmaryk had no cause to hear it. Nonetheless, Kacsmaryk ruled that the Title X program as administered violated the “constitutional right of parents to direct the upbringing of their children.”

In response to the pending mifepristone lawsuit, the federal government has argued that the FDA’s approval of the drug in 2000 was based on years of solid research, that the statute of limitations to challenge that approval has since run out, and that, like Deanda, the plaintiffs have no standing.

The FDA argues that neither the medical associations nor the individual doctors bringing the suit have suffered any injury related to the drug’s approval. And indeed, the plaintiffs’ claims of injury are tenuous. While the doctors who are party to the lawsuit don’t provide medication abortion, they argue that they may one day find themselves in a situation where a person allegedly harmed by mifepristone comes to them for treatment, thus drawing their attention away from existing patients. And they say that these impaired patients may present with an incomplete abortion, which would conscript the doctors into providing services that violate their conscience. Meanwhile, the organizations argue that the approval of mifepristone has forced them to divert time and energy away from other priorities, like advocating for fetal personhood, forcing them to focus instead on “educating” their members about the dangers of medication abortion.

To the FDA, this theory of legal injury is nonsense — and a slippery slope: Allowing the case to go forward would greenlight other baseless legal complaints, it argues in response to the Alliance lawsuit. “If FDA approved a new heart medicine, emergency physicians would have standing to challenge the approval on the theory that some patients would experience adverse events under the new treatment; in contrast, cardiologists would have standing to challenge the approval on the theory that some patients would no longer require their services.”

A Zombie Law

In a response filed in early February, the Alliance Defending Freedom lawyers brushed off the government’s arguments about standing — the doctors and organizations bringing the suit had “standing six ways from Sunday,” they asserted. They doubled down on their fearmongering, arguing that medication abortion had never been studied under “real-world conditions,” and that the doctors bringing the suit actually “treat and care for countless victims of this dangerous drug regimen.”

The plaintiffs also leaned into allegations that allowing medication abortion to be mailed to patients violates the 19th-century law known as the Comstock Act, which outlawed sending anything considered “obscene, lewd, lascivious, indecent, filthy or vile” through the mail, including contraceptives and “every article or thing” that could be used for abortion. Over the years, judicial and congressional actions have largely neutered the act, and in late December, the Department of Justice penned an opinion noting that the law does not apply where abortion is legal or when the sender doesn’t intend that the recipient would use the drugs illegally. But the Comstock Act is still on the books, a zombie law that the Alliance plaintiffs are trying to raise from the dead.

If Kacsmaryk agrees that the Comstock Act applies to medication abortion, the impact could be far-reaching. The act forbids the mailing of any device that may be used for abortion, which would include countless medications and routine gynecological instruments. It could also impact the availability of misoprostol, which absent mifepristone, can be used alone to accomplish an abortion. It is not as effective as the two-drug regimen but has for decades been used safely for that purpose; the Alliance lawsuit does not attack FDA approval of misoprostol.

A hearing in the case has yet to be scheduled. Meanwhile, a coalition of 12 states, led by Washington and Oregon, filed their own lawsuit last week asking another federal judge to rule that mifepristone is safe and effective and that its FDA approval is “lawful and valid.” The states are asking the judge to eliminate all remaining FDA-imposed restrictions on mifepristone, which they argue impermissibly impede access to the drug.

On February 24, Vice President Kamala Harris met with reproductive rights advocates and medical experts, including from ACOG and the American Academy of Family Physicians. The Alliance lawsuit is not just an attack on “women’s fundamental freedoms,” she warned. “It is an attack on the very foundation of our public health system.”

“Those who would attack … the ability of the FDA to make a decision” about approving a drug like mifepristone “ought to look in their own medicine cabinets to figure out whether they’re prepared to say those medications … should no longer be available to them,” she said. “Because that is what we are talking about.”

The post The Shadow Medical Community Behind the Attempt to Ban Medication Abortion appeared first on The Intercept.

Back in 2017, the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a cake shop owner who refused to create a wedding cake for a same-sex couple. In a 7-2 decision, the court found that the state had violated the cake maker’s religious objections. Now the court is considering another case out of Colorado that could expand the right to discriminate under the guise of free speech. In the fourth episode of Dissent, Jordan Smith and law professor Hila Keren discuss 303 Creative LLC v. Elenis, a challenge to the state’s Anti-Discrimination Act brought by Lorie Smith, a website designer seeking to refuse wedding design services to same-sex couples. Unlike Masterpiece Cakeshop, the 303 Creative case has no injured parties; it is a preemptive attempt to allow businesses to practice unfettered discrimination.

[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent — an Intercepted miniseries about the Supreme Court.

There’s this organization called the Alliance Defending Freedom – or ADF for short. They’re a Christian-right advocacy group, working across the country to create legislation and case law to deny services to LGBTQ people and criminalize consensual sexual activity between adults. And they’ve landed a big case at the Supreme Court.

The ADF is representing Lorie Smith, a graphic designer from Colorado who claims the state is preventing her from developing wedding websites because of — wait for it! — an anti-discrimination law. 

To make their case, the ADF and Smith have developed a series of slick videos with epic music and drone shots over Colorado landmarks. 

Lorie Smith: As a Christian artist I was really excited to step into the wedding industry and use my artistic talents, except there’s a Colorado law that prevents me from continuing with my work and forces me to violate my beliefs and speak messages that I don’t agree with… I love working with everyone. For me, it’s never about the person that I’m working with. It’s always the message I’m being asked to promote… What I am asking the Supreme Court to weigh in on and to protect this fall is the right for all of us to be able to speak freely, whether your beliefs are the same as mine or different. 

JS: The case before the Supreme Court, 303 Creative LLC v. Elenis, is on its face, at least according to the ADF and Smith, about free speech. But my guest today argues that it’s not about that at all.

Hila Keren: There’s no legal limit to the idea of free speech but there are places to carry free speech. And part of what I think goes back to our Founders’ understanding of the reality of slavery and the 14th Amendment is that the marketplace is not the appropriate place for that because once we compromise access to the market, we are really cutting under this way of being in the world.

JS: That’s Hila Keren. She is the associate dean for research and a professor of law at Southwestern Law School in Los Angeles. She writes about the marketplace and the relationship between law and human emotions. 

And she argues that this case is really about weaponizing the marketplace under the guise of free speech and religious freedom and that there’s been no limitation placed on Smith’s speech. She’s actually been sharing her views all over the place. Hila joins me now to break down the case. 

Hila, welcome to Dissent. 

HK: Oh, thank you so much for inviting me.

JS: So, to start we need to do just a couple of things. First, would you lay out, briefly, the facts of this case, 303 Creative v. Elenis, including the Colorado law being challenged? 

HK: So in this case, a lady named Lorie Smith owns a business, which he runs with a company called 303 Creative, which gives the name of the case. What she’s interested in is an exemption from anti-discrimination laws on behalf of her free speech and religious liberty — although the religious liberty part of it was put on hold by the Supreme Court, because it only invited her to hear her free speech claims. 

And so the law in Colorado says that once you run a business and you’re open to the public, what the law calls public accommodation, then you have to serve everyone; you cannot discriminate against groups. In Colorado, like in many other states around the country, one reason you cannot discriminate against is sexual orientation. And it’s named specifically in the legislation, it was democratically added as a category that is protected in the state of Colorado, but in numerous other states. 

And despite this very explicit legislation, the business here insists on a right to discriminate. How would they have a right to discriminate? The argument is that the right to discriminate will or should arise — it never existed before — but should arise from the right to free speech. That business wants to start doing weddings. It is a business that designs websites and wants to embark on designing websites for wedding purposes. And in doing that, they really want to highlight a line that they will do this only for heterosexual couples, but not for same-sex couples. 

Now, the business, importantly, did not do it yet. And so they rushed to sue Colorado before Colorado did anything. And they claim that Colorado is going to be punitive, going to prosecute them, and therefore they are doing something called pre-enforcement litigation, taking a preemptive step to say: You can’t sue me if I ever start doing weddings!

So on behalf of free speech, theoretically wanting to say I will not serve same-sex couples in the context of creating web wedding websites for them. But that’s not all. On behalf of the same claim, I also want to be free to put a sign out there and I’m imagining the sign to be digital at this point because it designs website and has a website — but to declare, basically, that same-sex couples are not wanted for the wedding services that we are going to one day provide. 

This case went through the system in Colorado and lost, but purposely was taken to the Supreme Court. And that’s an interesting point, the Supreme Court picked it up because the Supreme Court does not have to discuss that. And that question some of us thought was already decided in the past. But the Supreme Court limited the debate to the question of free speech.

And the whole litigation, it’s a lot of effort; it is part of legal battles around the entire country. So it’s not just Colorado, it’s not just this business; and the point is to argue we should be exempt from anti-discrimination laws, and in their language, not to be compelled to speak. And I’m saying “in their language,” because some of us may struggle to see where is the compelled speech in this scenario.

JS: That was a nice opening summary because we’re going to get to every piece of that — at least I hope we will. 

But I guess we should back up just a bit here to talk about that previous case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. Can you tell us a little bit about that case, and how it gets us to 303 Creative? And I guess, you’ve already hinted at this, but critically, what’s different about this case versus Masterpiece Cakeshop?

HK: This is another incorporated company business, commercial, this time it also [has] a storefront, that sells our cakes and other baked goods; similar to how the owner of the website designer refuses to serve same-sex — refused, I should say, to serve same-sex couples. 

There is a huge difference, though, between the cases. And this is that [there] baker[s] for real refused to serve real people. Their names are David and Charlie. And they were literally refused, very harmed, their photographs were all over the media. One of the mothers was with them. So there was a big, humane story which I find crucial to our understanding of what’s going on right now because at least people could have viewed both sides of this debate. And the party that is getting harmed for those discrimination was there to speak, to have a photograph, to have some sympathy and to have their story appear during the litigation. 

In Masterpiece, the Court really recognized the problem of stigmatizing the LGBTQ community and creating some undermining of the recognition of the right to marry for same-sex couples that was achieved in Obergefell in 2015, so several years prior, and the Court really said that gay persons and gay couples are social outcasts. And with that sympathy said that they were marked for such a long time as inferior in dignity.

So part of the analysis of the Court that existed in Masterpiece was: No you can’t do this because this is a certain compromise — actually, a big compromise of the dignity and self-worth of not only the couple that you hurt, Mr. Baker — David and Charlie — but the Court talked about community-based stigma, stigma that will be created if we’re going to allow businesses to simply rule out categories and say they’re not wanted there. 

So the Court decided not to decide in an interesting way. Because of that reasoning, the Court emphasized: We’re not going to allow businesses to discriminate and be released from requirements of Colorado to not discriminate and exempt them from any law. However, the Court really reprimanded Colorado’s Committee of Civil Rights for not treating the baker and his sincere beliefs with more respect. 

So respect was sort of the skeleton of this decision. And the Court said: In this case, we’re not going to protect the Committee, but not because we’re giving a wide exemption, but because you had to treat better the baker. 

In what sense did they not treat better the baker? In the sense that several people talking on the Committee opined that this, the sincere religious beliefs, are pretext to discrimination. It got the interpretation of the Supreme Court as possible disbelief of the religious claim, and that was isolated as inappropriate in this particular case. 

Why is it important to this litigation that we are now talking about? Because there were real facts. There was a record of a meeting; there was a citation from a person on the Committee that opined about the baker; and there were David and Charlie. And we can kind of try to do what we always do in law, balance between the human beings at play. And because we’re trying to balance between the human beings in play, there was this kind of fine line in Masterpiece where, well, you have to respect the community of LGBTQ people, and we’re not exempting you. But you have to also award respect to the baker, in that sense. 

So the Court was trying to balance rights and to see the whole picture on a rich factual pattern that is totally, and harmfully, missing in the situation that we are right now talking about in the case of 303 Creative.

JS: Yeah. I wonder if, also, critical to understanding what is going on here is to understanding what public accommodations law is. Can you explain broadly the contours of what we’re talking about when we’re talking about public accommodations law, and about protected classes, people that we’re trying to protect from discrimination? Broadly, or however you’d like to talk about it.

HK: We start from slavery historically, and from the 14th Amendment and the realization that it’s not enough to release people from their status as slaves, but rather crucial to their equality and joining society on different terms is their participation in the market. 

So the 14th Amendment is talking directly about the marketplace and demanding equal rights in the ability to make contracts. And I think that this is what’s at stake here. Because in order to purchase a good, anything I need, the cake from Masterpiece. And in order to actually get the service of website design from the provider in 303 Creative, we need a contract, right? I need the ability to make a contract. 

And when someone is saying: I am not going to make a contract with you because of who you are — not because you don’t have money, not because you entered my store with no t-shirt on, but because there’s something about who you are that I object [to] — that was forbidden from the beginning with roots going back to slavery. 

With time and during the ’60s, the principle was enlarged into a lot of subordinated groups, not only people who were slaves must be treated equally in the marketplace if we have any serious claim that this society is equal. Otherwise, if some people can make contracts, and some people cannot make contracts, if some people can buy houses but others cannot buy houses, then how are we going to just run this society?

And public accommodation law is really circling the demands of equality around businesses open to the public. So if you’re saying: I am open to serve everyone, then you must actually serve everyone. 

Now states created their own version for that. And states differ in what they call public accommodation, and many names, for example, specifically online businesses. So many states moved with time and added online businesses to that list. Because imagine — and after COVID, I cannot imagine that — 

JS: [Laughs.]

HK: — but imagine that Amazon would not serve a group in the population! That matters, even though they are not literally physically open to the public. 

So there is a variety between states regarding what counts as a public accommodation. But what matters to our case, and I want to point it out now, is that there was an agreement between the parties that was stipulated, and they could not argue about it — although the judges tried to argue — but that this business, the website design business, is public accommodations.

JS: That’s exactly what I was gonna say it was. My next question was: Yes, she stipulated this — 303 Creative, my website design business — is a public accommodation.

HK: Yeah. Now to go to the protected groups: That, with time, also was updated, and there is variety around the country. So some states only say you can discriminate based on race and sex and religion, for example. And some say you can’t discriminate based on gender identity, sexual orientation. We have the same principle in the different [states] regarding disability. We have a long — increasingly long — kind of a list. 

In a few states, the most recent addition is political affiliation.

JS: Yeah. So let’s come back to this whole thing about the stipulation because Lorie Smith, the owner of 303 Creative, has stipulated that her website business is a public accommodation. So, theoretically, shingles out there for all comers. Well, if she is saying: Yes, I am a public accommodation. What is she asking for? 

HK: She is asking for a right to discriminate, despite the law. 

She doesn’t call it “discriminate,” but a right to refuse to serve same-sex couples if they will come — and it’s an if, because that never happened — and ask her to design a website for them.

And during the hearing at the Supreme Court, it was interesting, because there were a lot of questions going at: But what if it will be exactly the same website? What if it is Harry and Steve, and Harry and Megan, and Harry and Steve are now getting married? And they come and they say: Well, we want exactly the same website you created for Harry and Megan, would you serve them? 

And the claim is: I cannot be compelled to give my expressive powers in designing websites to something that I disagree with. 

So literally, this is a request for exemptions from anti-discrimination laws, on behalf of free speech, for religious reasons, against same-sex couples right now.

JS: Why [would] one might stipulate to being a public accommodation? And maybe it has to do with opening this door wide.

HK: I want people to understand how this is not really a personal, individual dispute. Rather, what’s going on here is a really big legal campaign around the country, carried out with a very high budget, lots of legal talents, a lot of investment, and led by the largest conservative advocacy group called The Alliance Defending Freedom, or sometimes we call them the ADF. 

The Alliance Defending Freedom, in this particular kind of battle, they’re not defending anyone, they’re actually attacking. They have developed this legal strategy that is pretty sophisticated in which they went around the country — and deliberately around the country, in a variety of states, eight states so far, in Arizona, Kentucky, Minnesota, Wisconsin, Ohio, Colorado, Virginia, and New York, so they spread the battle — and picked people who are doing something somewhat expressive in the wedding industry, some of them photographers, some of them producers of videos, some of them florists, baker[s], we mentioned — a variety of those — and took states that are a combination of difficult states for them to win, like Colorado, and easier states for them to win, more conservative states, like Kentucky and Arizona, but deliberately. 

Why did they go also to the states that are difficult for them? Not because they like the challenge, but because they were hoping to get the issue to this Supreme Court. How do you get issues to the Supreme Court? You create — or you hope for, but here they proactively created — disagreement between circuits. So it all started in eight different states and got to four different circuits: the 6th, 8th, the 10th, and the 2nd. 

And this created a disagreement between the circuits. So for example, in the case of Colorado, the 10th Circuit said: No, you cannot discriminate. 

But the 8th Circuit in the case coming from Minnesota said: Yes, you can discriminate on behalf of free speech, at least in a temporary injunction that they have awarded. 

So that actually helped the Supreme Court to pick the case. But the strategy here is wider. And this goes back to why conceding that it’s a public accommodation because the whole point is to allow as many businesses as possible — and not as few businesses as possible — to actually make those statements. Because the purpose here is to use the marketplace as a platform to put signs out: Same-sex couples are not legitimate in some versions, and therefore I so object to the realness of their wedding and marriage that I object to serve them.

And so the broader it is, the more successful this political conservative battle is. So for that purpose, it’s really important to broaden it and to include public accommodations.

JS: That brings us to some of the arguments which, throughout them, there were a lot of hypotheticals, some rather cringy, and analogies, some of which were quite odd. And frankly, a lot of them, I think, missed the mark, by not implicating a protected class, for example, or even a public accommodation [laughs], like Kristen Waggoner, the lawyer representing 303 Creative bringing up the musical, Hamilton.

HK: [Laughs.]

JS: And how unless you vindicate her client’s rights here, that somehow Lin Manuel Miranda wouldn’t have been able to cast his show the way he did. 

[Musical clip from Hamilton: “The ten-dollar Founding Father without a father, got a lot farther by working a lot harder…”]

JS: OK … Miranda isn’t a public accommodation, and I don’t get how his casting would be an issue, even if he was. So there’s that. 

And then there was also Justice Samuel Alito’s incredibly cringy Back Santa and kids in KKK robes hypothetical, which I think that if people have heard anything about the oral arguments in this case, that might be the thing that they heard about. Let’s listen to a bit of that.

Justice Samuel Alito: […] Justice Jackson’s example of the — the Santa in the mall who doesn’t want his picture taken with Black children.

So, if there’s a — a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that — that Black Santa has to do that?

Eric R. Olson: No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.

JS: Can you talk about why these hypotheticals and analogies just … fail, and how they obscure what’s really at stake here? 

HK: This question alone covers almost everything that is wrong with this case. The judges on both sides, liberals and conservatives, had to use hypotheticals because they didn’t have a case. If you have a real case, you can talk about the facts, but there were no facts. And during this hearing, the oral hearing arguments, there were repeated references to the lack of fact[s]. It was astonishing! 

SA: Well, you should understand what your statute means. So suppose a website designer says, I’m offering my services, but I’m in a lot of demand for my services. And I reserve the right to decide who I will provide a website for and who I will not. Is that a public accommodation, then?

EO: If that’s the only factor then yes, but it can make decisions about who to supply that aren’t based on protected characteristics and choose its clientele just fine. What it can’t do is say I reserve the right to refuse service which means in practice, I will not serve black people

Justice Ketanji Brown Jackson: And isn’t part of the problem here in terms of trying to answer Justice Alito’s various hypotheticals that were presented with a record of stipulated facts and that the opposing — your friend on the other side actually stipulated to the application of the statute?

So it’s really hard for us to know and figure out and determine in this context, how the statute would actually apply, because we don’t really have a real record on that — on that score.

EO: That’s correct.

HK: The fact that there were no facts invited those hypotheticals, made them necessary, because the justices on both sides were trying to figure out: What exactly are the limits of what you’re saying here? Can we do this? Can we do that? And they came up with a lot. 

So that’s one point. But the second point that I’m so happy you emphasized [is] the role of Justice Alito in that, because a lot of the Hamilton, Santa Clause, and all of those examples really come from a line that he and the lawyer wrote for the ADF, Ms. Waggoner, were trying to lead, which is a very problematic line that I want to pull out from the hypotheticals because the hypotheticals are so confusing, that actually you lose sight of what’s at stake.

And so what they were struggling with is the comparison of rejecting same-sex couples, to rejecting African-American people and interracial couples. So each time the word race in any variation came up in the oral arguments, there was a jump on the side of either the ADF, or the main justice was Justice Alito carrying that, to interrupt that, to not let it happen. 

So when Justice Sotomayor started to say: Well, on that premise, you’re free to hold your opinions, you can also discriminate against disabled people, because maybe you believe that they shouldn’t actually create a family, and interracial couples.

Justice Sonia Sotomayor: — tell me why it’s not protected speech, the identical message that — that Justice Barrett put forth, but by a disabled couple. And you say I don’t want disabled people to get married. I think propagating a disability is against my personal belief. It doesn’t have to be religious because we’re not dealing with the religious part of this. I don’t want to speak that message. I too believe that two disabled people getting married and telling their story of how they got in love, I’m not going to serve those people because I don’t believe —

Kirsten Waggoner: It’s not — 

SS: — that they should be married. What’s the difference between that and I don’t believe Black people and white people should get married? 

HK: Because it didn’t really disappear from the discussion, they brought a second line of argument. And the second line of argument was about Obergefell, the recognition of same-sex couples, and saying remember that in Obergefell when Justice Kennedy acknowledged and recognized same-sex couples, he said that some honorable people actually think that this is not really an appropriate kind of marriage. 

And they just repeated during the oral arguments — and when I say they, it’s Ms. Waggoner and Justice Alito — the premise of honorable people, honorable people, that are not like the racists. 

So there was a really big theme there: Is refusing same-sex couples similar to refusing people because of race? And they were leading a line of: No, that’s not the same. You cannot be an honorable racist, but you can be an honorable religious person who disagrees with same-sex marriage. 

However, one thing that is being left out is that there is no way to cabin that. Remember that we explained that the Supreme Court took the claim of free speech and not the claim of religious liberty. So because it’s free speech, free speech protects racists, and sexists, and bigots, and everyone. So if someone has, because of their free speech, the right to discriminate, then of course that it will be the decision that if it is in conflict with your free speech, you can avoid anti-discrimination laws, then the next move is to just say, well, part of me thinks that people, based on race, are inappropriate and therefore I will do the same. 

Justice Jackson also reminded people — and that was a great reminder on her part, great interjection — that a lot of people resisting interracial couples or intermingling of the races were basing it on religion. I mean, there is no limit to what segments of religion can create in terms of objections: Objections to women to women’s rights, what they can wear, to what they can do —

KBJ: Historically, opposition to interracial marriages and to integration, in many instances was on religious grounds. So I don’t know that we can say that just because we have a religious objection to same-sex marriage in this situation that wouldn’t necessarily implicate religious objections to other kinds of situations.

HK: This is really unlimited. So really, part of the harm here is this case is really unlimited in its scope. This oral arguments phase was really exposing a lot of that, a lot of inappropriate moments — not only in the hypotheticals, by the way. Throughout the entire argument, there were really hostile references to same-sex marriage. And it’s hard to reconcile this with the view that this is [an] honorable view. 

While I understand the religious argument here, you don’t have to call a marriage of someone else “false.” And the word false was used again and again during the litigation; the word “bad” marriage was mentioned. The Justices talked about things we loathe, including this marriage; things that are offensive to one’s beliefs. So there was so much of this hostility. 

At a certain point, Justice Gorsuch talked about how the baker for Masterpiece was sent to a re-education program:

EO: But, here, they are defining their service by excluding someone based on their —

Justice Neil Gorsuch: That’s their religious belief.

EO: Well, in Colorado —

NG: You can’t change their religious belief, right?

EO: No, but — but -— well, two —

NG: And you protect religious beliefs under the statute, right? That is one of the protected characteristics in theory.

EO: Yes, and in practice. If it wasn’t in practice, we have heard about it over — over the past several years and — and my friend has pointed to no example where this has been applied in a — 

NG: Mr. Phillips did go through a re-education training program pursuant to Colorado law, did he not, Mr. Olson?

EO: He — he went through a — a process that ensured he was familiar with —

NG: It was a re-education program, right?

EO: It was not a re-education program.

NG: What do you call it?

EO: It was a process to make sure he was familiar with Colorado law.

NG: Someone might be excused for calling that a re-education program.

HK: To me, the hypotheticals and those expressions of hostility are really part of what was so awful and went off track in this litigation. And it all happened because there were no facts. There was no other side. There was nothing to tell here. And therefore it went all over the place, to places that, to me, are inappropriate.

JS: Yeah, I was just going to ask you, basically, which of the hypotheticals stood out for you as actually capturing the core issue and the absolute certain fallout that would flow from a decision in 303 Creative’s favor?

HK: You know, the surprising part is that I think Justice Barrett was, at a certain point, trying to help Ms. Waggoner by introducing a story about [an] interfaith couple, but to me, it only said more about how unrestrained and limitless it is once you start doing all those things. Or there was a story that was part of how inappropriate it was about a couple that met in the workplace, and they were having an affair while being married to other people:

Justice Amy Coney Barrett: A heterosexual couple comes to her and in the engagement story part writes a story that goes like this: We met at work, we were both married to other people, but what began as late nights at the office quickly turned into love. After six months, we realized we could be happy only with each other, so we decided to begin our story today, got divorced, and are marrying each other. Does she publish it? 

KW: I don’t believe that she would. 

HK: I want to say actually, that from the variety of hypotheticals, people should get scared. Because it can target almost any one of us because, again, we have zero control on the free speech of people. And free speech is just unlimited. So if someone wants to say: Well, if you were married to someone when you met a new person, all of us with Chapter B in their lives should be worried — and who knows who is next!

So I think that once you start going downhill with human dignity, that’s where you land. And if you will allow me, I want to say that they repeatedly talked about how this view of being against same-sex weddings is honorable. And it’s honorable because Justice Kennedy promised them that. But Justice Kennedy never promised to allow people to discriminate. Justice Kennedy wrote Masterpiece and said: No, you cannot discriminate. I understand that you’re against it. And I believe you and your religious belief is sincere, Mr. Baker, but that doesn’t mean that you can discriminate. 

So no one promised honorable people that they’re allowed to discriminate. But what is really mind-boggling is how one-sided is this game of honor and dignity, because while they were emphasizing how honorable is the point of resisting same-sex couples, and also at one point, Ms. Waggoner said no one has to be compelled to express a message that violates their core convictions because it’s demeaning to them — meaning it’s humiliating that Colorado dares requiring equality. That was, by the way, a response to Hamilton, because she really got carried away with that. 

JS: [Laughs.] 

HK: But if you think about it, no one can demean the business owner. But the business owner can totally humiliate the customers, right? Only, you strategized the litigation in a way that no one can actually tell a story of how humiliated they felt. I think the loss in Masterpiece or the way Masterpiece said: No, you cannot discriminate — is because there was a voice there of really real people who got so offended and crushed by the refusal. What do you mean our wedding is false, right?

JS: And there was also a lot of talk about well, I guess trying to somehow cabin this in a way by talking about sort of a who versus a what. 

So, at one point, Justice Neil Gorsuch is like: Well, Smith would refuse this wedding website to heterosexual people too! So it’s really not the who who is asking, but the what they’re asking for.

And this struck me as odd [laughs] on a couple of levels. I mean, Smith does not want to provide wedding websites for same-sex weddings. And I mean, heterosexuals don’t generally have same-sex weddings. So the what — the same-sex wedding — is inextricably linked to the who in this scenario, right? Can you explain that a little bit or talk about that a little bit?

HK: Yeah. So this is one of those destructions, I think of, why are you doing this — and adjacent to that is the argument — but she serves the LGBTQ community; only when they get married, she disagrees with them!

And as Obergefell itself said, and they rely on it in their argument, but it also says, without the ability to get married and celebrate the marriage like anyone else, you really don’t have the full personhood. Right?

JS: Right. 

HK: So I don’t think you can separate the what and the who, in that particular situation. 

I have to say that if the same Lorie Smith went to the public square and wanted to carry signs against same-sex couples, I would be with her protecting her free speech. So I do think that people do have rights to opinions that are difficult for us to hear; I would not be on the same side of the campaign with her, but we both should have access to the public square. 

The problem here is the platform they chose to use. This insistence [that] not only we disagree with same-sex marriage, but we take the battle to the marketplace, and we’re trying to create via the marketplace, this segregated marketplace that will convey the larger resistance to same-sex couples. 

And so it’s not that Colorado chases businesses. It’s that those businesses chose to enter the wedding industry to make the point that actually is a political point: We never agreed with the right to get married, and now that it exists — after Obergefell — we’re going to resist it in many ways. And this is our most creative one in which we’re going to use cakes and flowers to make a political point.

JS: You know, I was really sort of worried after the oral argument? I think part of it does have to do with how bonkers a lot of the hypotheticals were. And, of course, it naturally all relates back to the problem of not having a story on the ground, just sort of this hypothetical that Lorie Smith wants to build these websites, she just doesn’t want to do them for you, as you said. 

But by the end of the argument, I was just sort of like: Oh, no, where is this going? And I fear that it’s kind of going towards what you’re suggesting, that the wheels are about to come off the bus here. 

I mean, and then it also strikes me that, of course, yeah, they didn’t have to take this case, right? They kind of grabbed it. 

There’s probably nothing uplifting to say about all this. But I’m just curious what your takeaway was. I mean, the harms are very clear. And I’m very worried. And I don’t know that there’s a reason for me not to be worried, if that makes sense. I’m kind of curious what your final sort of takeaway was.

HK: I share your sentiment. That’s how I ended after listening carefully to the oral arguments, thinking it’s going the wrong way. And the reason it’s going in the wrong way is structural. I think the Supreme Court has six conservative justices. They were never happy about the recognition of same-sex weddings and marriage, and so now they’re undermining it. 

I mean, in the debate about abortion, if you recall, when we were all taken a very, very fundamental right [sic] that we thought we had for 50 years, there was a question: What’s next? Whose rights are next? 

And some people were saying: Oh, no, they’re not going to touch same-sex marriage. But this is a serious way of touching and injuring same-sex marriage, right? Because you can recognize the marriage but undermine everything else around that. And then you really mark second-class citizens here. And then when the list is open of who is a second-class citizen, then we can add to the list more and more people.

So this is dreadful, and it comes from the structure of the Supreme Court. I think that’s another significant difference between the times of Masterpiece Cakeshop and 303 Creative. 

What’s changed is also not only the litigation, but also who’s on the Supreme Court, and you could hear it. I mean, they joined it from the perspective of religious liberty and from the perspective of disliking strongly the state, like you could hear it in Justice’s Gorsuch reactions — like what about Colorado compelling — and that’s like a mixture of several conservative agendas. Like now the state is not allowed to enforce anti-discrimination laws. 

So we are going to before the ’60s, this is undoing the entire system of civil rights. And with no civil rights in the market, no civil rights in the workplace, no civil rights in housing, no civil rights in the public accommodations, where are we headed is a really severe question. 

The only sliver of possible hope I can try to work on, and this is what I’m working on, is to say: You know what? This is not only between states and their citizens. This is also between us as human beings. The problem is interpersonal — although they are hiding it, they were trying to hide it. And we have a legal system that covers the relationship between person to person.

And so to me, my project is to take a look at those laws — for example, contract law. If I’m trying to make a contract with you, and I have the money, and I respect your business and your rules, and I merely entered your store and ordered something you sell to everyone else and I can pay cash or credit, whatever you want, does contract law allow you to say: No, I will not contract with you?

Another big one is tort law. In our tort law, we are actually banning people from intentionally inflicting emotional pain on others. So if someone is to reject in a very humiliating way a client — so David and Charlie with the mom get into the store, only to be turned around for who they are, that’s a lot of pain to go back home with. And so isn’t it intentional infliction of emotional distress? 

So, I don’t know. This is kind of against the grain of our habit to say political questions are going to be determined under constitutional law, and our tort law, property law, and contract law are going to deal with money and the people who have money. But I do think that when interpersonal problems are happening, those laws should offer remedy, even if we lose the battle on anti-discrimination laws.

JS: You know what? I will take that sliver of hope in the law and end there. 

HK: [Laughs.]

JS: Hila, thank you so much for joining us.

HK: Oh, thank you. It was a fascinating conversation.

JS: That was Hila Keren, associate dean for research and a professor of law at Southwestern Law School in Los Angeles. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith. 

The post Dissent Episode Four: The Right to Discriminate appeared first on The Intercept.

A month after the U.S. Supreme Court overturned Roe v. Wade, the Houston mother of two experienced an unplanned pregnancy with her now ex-husband and allegedly sought abortion care with the help of her friends. For nearly a year, Texas had imposed a six-week abortion ban, and a full “trigger” ban would be enacted in just a few weeks. Silva needed to act fast and extricate herself from what appeared to be an emotionally unhealthy relationship with a husband she would go on to divorce in February. Her friends offered their unwavering support.

“I just worry about your emotional state,” wrote Carpenter, who had advocated that Silva “remove” herself from her husband, according to court documents. “He’ll be able to snake his way into your head.”

“I know either way he will use it against me,” Silva said of her pregnancy. “If I told him before, which I’m not, he would use it as [a way to] try to stay with me. And after the fact, I know he will try to act like he has some right to the decision.”

“Delete all conversations from today,” Noyola wrote. “You don’t want him looking through it.”

Not only did Marcus Silva access the private conversations his ex-wife had with her friends, he also filed an unprecedented lawsuit in March accusing Carpenter, Loyola, and Texas abortion rights activist Aracely Garcia of wrongful death, alleging the trio “conspired” to help his ex-wife obtain medication to terminate her pregnancy with a self-managed abortion. Attorneys for Silva also hope to sue “into oblivion” the manufacturer of the abortion pills procured. The complaint, filed in state court in Galveston County, Texas, seeks a stunning $1 million in damages from each woman.

In the first lawsuit of its kind since Roe was struck down, the legal filing, riddled with sensitive information, instills a chilling effect on anyone who wishes to assist in abortion care, raising the threat of surveillance and public scrutiny, legal experts say. Filed by an influential conservative legal figure, the lawsuit also offers a window into the anti-abortion movement’s growing push for fetal personhood.

An Influential Figure

The lawsuit claims that aiding a self-managed abortion is tantamount to murder under state law, allowing Marcus Silva to bring a wrongful death case. Texas law specifically exempts the abortion patient from facing prosecution, leaving Brittni Silva out of the legal crosshairs.

The alleged abortion occurred prior to enactment of the state’s criminal trigger ban, which makes performing an abortion a felony punishable by up to life in prison. Marcus Silva’s attorneys appear to rely instead on Texas’s pre-Roe criminal ban, a 1925 statute that penalizes anyone who “furnishes the means for” abortion with up to 10 years in prison. The status of the antiquated law is murky. In July, the Texas Supreme Court temporarily ruled in a case filed by abortion providers that the law could only be enforced civilly. Earlier this year, U.S. District Judge Robert Pitman ruled that the law was obsolete, as it had been repealed by implication following Roe, a finding that reaffirmed a 2004 5th U.S. Circuit Court of Appeals ruling.

Some legal experts consider the lawsuit’s argument highly tenuous. Since Brittni Silva is immune from prosecution, her alleged abortion shouldn’t be considered a crime, leaving no basis to bring a wrongful death suit.

“For this to be wrongful death, you would have to have committed that criminal act, and because the pregnant person cannot be charged for homicide for her self-managed abortion, it’s not criminal,” said Joanna Grossman, a gender and family law professor at Southern Methodist University. “So there is no reason to think what her friends did to help is facilitating crime.”

The suit might be easy to write off if it weren’t for the figure behind it: Jonathan F. Mitchell, former Texas solicitor general and architect of the state’s six-week abortion ban, Senate Bill 8. Mitchell filed the complaint along with Republican state Rep. Briscoe Cain and the Thomas More Society, a religious-right law firm known for pushing anti-abortion views through litigation.

Dubbed a “brilliant legal mind,” Mitchell has a prolific background litigating right-wing causes, including anti-LGBTQ+, anti-union, and anti-abortion lawsuits. A former law clerk for the late U.S. Supreme Court Justice Antonin Scalia, Mitchell has ties to the Federalist Society, a group aligned with the court’s right-wing bloc. Mitchell’s legal crusades are often successful. He recently represented an anti-LGBTQ+ Texas activist who struck down a nationwide Obamacare provision that required insurance companies to cover a range of preventive care services, including HIV prevention measures such as PrEP.

While reticent in the public spotlight, Mitchell has developed a reputation as a powerful actor behind the scenes, namely for crafting the novel legal provision at the heart of Texas’s S.B. 8. Enacted in 2021 as a result of inaction by the U.S. Supreme Court, the law allows private citizens to act as vigilantes and sue abortion providers or anyone who “aids or abets” the procedure.

Mitchell’s legal efforts have often laid the groundwork for a larger plan: In 2019, he helped mastermind a string of local “sanctuary for the unborn” ordinances, which became the blueprint for S.B. 8, compelling cities to declare themselves abortion-free by imposing a similar civil enforcement mechanism. The ordinances — which have proliferated in 65 towns across the U.S. — also sought to revive the Comstock Act, an archaic law that has emerged as the next weapon in the arsenal of the anti-abortion movement.

Personhood Is the “Long Game”

Central to Mitchell’s controversial and “dangerous” ideology is his belief that old, unenforced laws never really die. Only legislatures that enacted laws can formally repeal them, he argues. In addition to seeking to resurrect the century-old Texas ban, Mitchell has signaled an interest in reviving the Comstock Act in Marcus Silva’s wrongful death suit.

The dormant 1873 anti-obscenity law bars any materials associated with abortion care — from pills to surgical equipment to information pamphlets — from shipment by mail, providing a possible foundation for a nationwide abortion ban. Initially intended to ban contraceptives, the law has not been enforced since the 1930s and has seen its scope narrowed over time. Violations can result in up to 10 years in prison.

In a memo issued last year, the Department of Justice clarified that the 150-year-old law did not prohibit mailing abortion medication to patients in states where abortion remains legal, yet that has not deterred anti-abortion actors. In the wrongful death suit, Mitchell argued that the Biden memo was “not entitled to deference” from state courts and that anyone involved in the distribution of the pills Silva obtained — including the manufacturer — committed a “wrongful act” in violation of Comstock. Mitchell doubled down on the push to revive Comstock in another recently filed suit, asking a New Mexico judge to declare that the outdated law supersedes any state law protecting abortion access.

Signaling a coordinated campaign among anti-abortion conservatives, Texas-based U.S. Judge Matthew Kacsmaryk also exhibited eagerness to revive the Comstock Act in his recent ruling to suspend the Food and Drug Administration’s approval of the abortion drug mifepristone, as did the Trump-appointed justices of the 5th U.S. Circuit Court of Appeals who partially upheld Kacsmaryk’s ruling. While the U.S. Supreme Court halted restrictions on the drug from taking effect in April, sending the case back to the 5th Circuit for review, it remains to be seen how the appellate court — and possibly the Supreme Court down the line — might handle the issue of Comstock. Since 2019, the anti-abortion group Alliance Defending Freedom, a plaintiff in the mifepristone case, has paid Mitchell’s Austin-based law firm at least $92,000 for services listed as “sanctity of life” and “religious liberty,” according to IRS filings.

Mitchell’s broader ambition in the wrongful death lawsuit may be judicial recognition of fetal personhood, or classifying fetuses as equal to people with protected constitutional rights, according to Mary Ziegler, abortion historian and law professor at the University of California, Davis. Comstock, while a parallel strategy, helps push the similar view that all abortion violates federal criminal law. Fetal personhood has been the defining end goal of the anti-abortion movement since the 1960s, and with Roe’s demise, extremists have an unprecedented opportunity to achieve it.

“The lawsuit gets the ball rolling on the idea of how to bring fetal rights claims forward.”

Mitchell’s suit, Ziegler said, helps establish a personhood trend that the Supreme Court’s conservative supermajority could “seize” on. It “advances a particularly chilling vision,” she said: shaming and intimidating people who end pregnancies, incarcerating anyone who helps secure abortion care, and vindicating the will of men who oppose it.

“The lawsuit gets the ball rolling on the idea of how to bring fetal rights claims forward. It’s part of a long game,” Ziegler said. “Mitchell is hoping this builds to something bigger, and ultimately adds precedent to the recognition of fetal personhood by the courts.”

Two bills filed by Texas lawmakers this session appear to push for personhood; they would roll back criminal and civil protections for self-managed abortion and classify a fertilized embryo as an “individual,” opening the door for abortion to be treated as capital murder, punishable by the death penalty. The bills are awaiting committee hearings before the legislative session ends on May 29.

Photos: Abortion rights demonstrators rally in New York City against the decision of Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo, Texas, who overruled FDA approval of the abortion medication mifepristone on April 15, 2023. Olga Fedorova/SOPA Images/Sipa USA

A Chilling Effect

Recently revealed documents call into question Marcus Silva’s claims that he was wholly unaware of Brittni Silva’s alleged abortion, possibly undercutting his argument that he suffered emotional harm due to purported secrecy and should be awarded damages. A status hearing on the case is scheduled for June 8 before a Republican judge who has a history of verbal abuse in his courtroom, including erupting at a pregnant woman. But no matter how the case is resolved, Grossman said, the damage is already done, and that’s by design.

The lawsuit featured the word “murder” nearly 30 times, likening the women to killers. Notice of the suit was sent to the women’s private employers, as well as the National Latina Institute for Reproductive Justice, where Garcia was employed, demanding that they preserve all evidence of their relationship with the defendants so that attorneys could investigate whether the employers would be held liable.

“It’s an attempt to weaponize a woman’s most intimate medical decision and try to make it a crime.”

“It’s an attempt to weaponize a woman’s most intimate medical decision and try to make it a crime,” said Rusty Hardin, a high-profile Houston defense attorney who is representing two of the women targeted. “And it’s extremely unfortunate when lawyers use language to demonize people they disagree with.”

Despite the fact that no discovery has been taken, the legal complaint featured several pages of intimate text messages between the women — including Brittni Silva’s ovulation calendar — captured through photos of her phone, presumably (but not definitively) by her ex-husband. According to police records obtained by NPR, Marcus Silva searched through his ex-wife’s phone and purse on more than one occasion, reportedly finding abortion pills. The complaint also included a photo of the women in “Handmaid’s Tale” Halloween costumes to further the argument that they “celebrated the murder.” Their addresses have been made public, and their photos have been shared online by anti-abortion activists.

“This is going to scare away and intimidate anyone who now tries to help a friend or loved one obtain a self-managed abortion,” Grossman said. “The surveillance and violation of private conversations is going to instill so much fear. This sends a message that your personal ID, your photos, your text messages could all be fair game in a public case against you, and nothing you say is safe.”

“And it doesn’t matter if the case is thrown out or struck down — your lives are already likely ruined,” Grossman added. “I think that’s a major purpose of the suit. The chilling effect is part of the whole strategy, and it’s been very successful for Mitchell.”

Grossman pointed to the fact that even before any lawsuit was filed under S.B. 8, clinics in Texas halted the majority of their abortion services out of fear of liability.

Farah Diaz-Tello, senior counsel with the reproductive rights legal advocacy organization If/When/How, stressed that lawsuits like this publicly reinforce and empower “vindictive” partners, giving them another tool to exert control. It’s common for abusers who learn of their partners’ self-managed abortions to coerce them into continuing the relationship by threatening to go to law enforcement, Diaz-Tello said.

“Cases like this one essentially serve to isolate victims of abuse who are often turning to self-managed abortion, a pregnancy termination method that is easier to conceal,” she said. “It’s telling people, if you need help accessing abortion, you’re really on your own or else your friends or family members will get swept up in the net of criminalization.”

From 2000 to 2020, the group documented 61 cases in which people were criminally investigated or arrested for self-managing their abortions or helping someone else do so, often using other criminal laws, including homicide laws. The majority of the cases involved abortion medication, which is under an unprecedented legal threat. The number is likely the “tip of the large iceberg,” not accounting for dropped charges or plea bargains.

While it once seemed like a pipe dream for the anti-abortion movement, fetal personhood may be slowly making its way into mainstream judicial thinking. In his ruling, which echoed the inflammatory rhetoric and unscientific claims employed by anti-abortion activists, Kacsmaryk defended his use of the medically inaccurate terms “unborn human” and “unborn child” rather than fetus or embryo — a telling embrace of fetal personhood.

“The fall of Roe has emboldened the radical fringe and shifted the Overton window on the idea that people should be criminalized for having abortions. The more you push these ideas, the more you normalize them,” Diaz-Tello said. “And this Texas lawsuit is a piece of that.”

The post The First “Wrongful Death” Case for Helping a Friend Get an Abortion appeared first on The Intercept.

Star Wars has always been political, no matter what the MAGA types who cosplay as Imperial agents and scream about Disney shoving diversity into “their Star Wars” say. 

The original trilogy showed a band of anti-imperialist fighters going up against a vicious pan-galactic state — based, according to its creator George Lucas, on the Vietnam War, with the Viet Cong “rebels” going up against the United States “Empire.”

The prequels showed the transformation of the Galactic Republic into the Galactic Empire of the original trilogy. In 2018, during Donald Trump’s first administration, James Cameron interviewed Lucas about Star Wars’ anti-authoritarian messaging, highlighting a line spoken by Senator Padmé Amidala as Emperor Palpatine declares that the Republic is now an Empire: “So this is how liberty dies, with thunderous applause.”

“We’re in the middle of it right now,” Lucas replies. 

Lucas sold Star Wars to Disney in 2012 and hasn’t been involved in production since then, but “Andor,” the new series set in the universe, doubles down on its anti-authoritarian roots, focusing on the creation of the revolutionary Rebel Alliance. In the process, it gives us a glimpse into the messiness and conflict that often accompanies building a movement on the left, as activists fight over which political philosophies and strategies work best.

And Season Two couldn’t have come at a more opportune time as Trump and his second administration carry out Project 2025, and Democrats do, well, not much. 

Caution: Spoilers ahead.

Like the U.S. Congress — and especially the Democrats — members of the Imperial Senate in the show have little actual power under Emperor Palpatine’s unitary executive. Senators Mon Mothma and Bail Organa use parliamentary procedure and political dealmaking to fight against the emperor’s fascistic rule, but it becomes apparent that this strategy is futile. 

In “Andor” Season Two, Mothma tries to rally support against an extension of the Public Order Resentencing Directive, or P.O.R.D., an emergency directive from Emperor Palpatine that imposes harsher sentences on people for supposed crimes against the Empire. Senator Dasi Oran of Ghorman won’t support the bill because he “can’t risk chafing the Emperor,” who is already singling out his planet for unknown reasons (the audience later learns that Ghorman contains a mineral critical to completing the Death Star). Other senators assert that security concerns are more important than civil liberties, or that the crime numbers can be manipulated and they “believe what [they] feel.” 

“All doubts aside, there is one glaring certainty. If we do not stand together, we will be crushed,” Mothma tells Oran, but his decision has been made.

After Season One, “Andor” creator and showrunner Tony Gilroy said in an interview that he sees Mothma as “sort of a Nancy Pelosi character … a powerful presence in the Senate but she’s facing defeat after defeat after defeat as the Empire is taking over.” 

But in the background, Mothma is secretly using her family’s money to fund a burgeoning insurgency, including Luthen Rael, a spymaster leading a covert Rebel network whose heist of 80 million credits from an Imperial garrison inspired the creation of the repressive P.O.R.D. law in the first place. Unfortunately, Pelosi’s family fortune and ice cream freezer probably aren’t being put to similar use right now.

At first, Mothma is committed to keeping the Rebellion from breaking into open violence against the powers that be, despite pressure from more radical actors in her orbit. 

Saw Gerrera, who heads another rebel cell known as the Partisans, is willing to fight the Empire “by any means necessary,” including through violence, as he says in the Star Wars book “Reign of the Empire: The Mask of Fear.” 

Gerrera and his Partisans have appeared throughout the Star Wars timeline, and are the most far-left revolutionary characters in the Age of Rebellion. Gerrera is frequently used as a foil for Senators Mothma and Bail Organa (father of Leia), who prefer to work peacefully from inside the system to fight the Empire. While the senators came to rebel from a place of immense wealth and privilege, fighting more on philosophical grounds, Gerrera has had to fight for the freedom of his people since he was young.

In a meeting among the three to discuss strategy in “Mask of Fear,” Gerrera tells his counterparts, “Democracy is a principle and people don’t fight for principles, no matter what they say. They fight for land, for resources, for their lives. … A democratic genocide isn’t any more agreeable to its victims.” 

But a brutal massacre on Ghorman eventually pushes Mothma to armed resistance.

On Ghorman, an underground movement known as the Ghorman Front has been percolating since the gruesome killing of hundreds of peaceful protesters in the planet’s capital over a decade earlier. 

Over the course of the season, the show reveals that the Ghorman Front has been secretly sanctioned by agents within the Imperial Security Bureau, which allowed the rebels to steal Imperial weapons and put up a fight in order to manufacture consent across the galaxy for military crackdowns and the extraction of Ghorman’s mineral resources. 

When the Empire moves mining equipment onto the planet, the people of Ghorman gather in the capital to protest. A local leader, Carro Rylanz, sees the Empire’s provocation as the ruse it is, and urges his daughter Enza and the rest of the Ghorman Front to continue peaceful resistance. They ignore him and prep weapons for the demonstration anyway, with Enza Rylanz telling him, “You can’t keep screaming the same ideas expecting change!”

But the empire takes matters out of the Front’s hands. While the people chant, “We are the Ghor! The galaxy is watching!” and sing their national anthem, Imperial soldiers barricade them inside the plaza. An Imperial sniper perched on the roof sets off the violence with a false flag, purposefully killing an Imperial grunt and provoking an imperial attack, which forces the Ghorman Front to defend their people with arms. They are massacred.

As news of the massacre makes its way to the Imperial Senate, Ghorman Senator Oran is arrested without charges. Mothma realizes the time to fight peacefully from the inside has passed; the Rebellion must escalate its tactics with military action. 

In a speech on the Imperial Senate floor about the death of objective reality that wouldn’t be out of place on the U.S. Senate floor today, Mothma condemns the Ghorman Massacre as an “unprovoked genocide.” 

“When truth leaves us, when we let it slip away, when it is ripped from our hands, we become vulnerable to the appetite of whatever monster screams the loudest,” Mothma says. “And the monster screaming the loudest? The monster we’ve helped create? The monster who will come for us all soon enough is Emperor Palpatine!”

After her speech, Mothma flees to Yavin 4 where she will become the leader of the Rebel Alliance. Senator Organa stays behind to stall until the Rebellion is ready to go up against the Empire’s military might. 

The parallels of the world of “Andor” to the United States’ political reality in 2025 under Trump’s second administration are clear. 

Right-wing think tanks and news have spewed propaganda for decades to make us question objective truth, leaving us vulnerable to the monster screaming the loudest. People speaking up against Israel’s genocide in Gaza are being imprisoned without evidence or due process. Even politicians who dare go against Trump are targets for arrest now. What is it going to take for Democrats to do more than break floor-speech records over things that don’t matter and fight for the people they represent? 

Our democracy is giving way to authoritarianism, and we can’t just wait for a Jedi to save us. We have to fight now.

Or as Karis Nemik, one of the rebellion’s freedom fighters, put it in a manifesto in the show’s first season: “The day will come when all these skirmishes and battles, these moments of defiance will have flooded the banks of the Empire’s authority and then there will be one too many. One single thing will break the siege. Remember this. Try.”

The post “Andor” Has a Message for the Left: Act Now appeared first on The Intercept.

Mentions of democracy are noticeably absent, however, from Anduril’s recent announcement of a new joint venture with a state-run bomb maker from an authoritarian monarchy that is facilitating a genocide.

Anduril is partnering with EDGE Group, a weapons conglomerate controlled by the United Arab Emirates, a nation run entirely by the royal families of its seven emirates that permits virtually none of the activities typically associated with democratic societies. In the UAE, free expression and association are outlawed, and dissident speech is routinely and brutally punished without due process. A 2024 assessment of political rights and civil liberties by Freedom House, a U.S. State Department-backed think tank, gave the UAE a score of 18 out of 100.

The EDGE–Anduril Production Alliance, as it will be known, will focus on autonomous weapons systems, including the production of Anduril’s “Omen” drone. The UAE has agreed to purchase the first 50 Omen drones built through the partnership, according to a press release, “the first in a series of autonomous systems envisioned under the joint venture.” The Omen drone was described as a “personal project” of Anduril founder and CEO Palmer Luckey, a longtime Trump ally and fundraiser.

EDGE Chair Faisal Al Bannai explained in a 2019 interview that EDGE was working to develop weapons systems tailored to defeating low-tech “militia-style” militant groups.

The UAE has been eager to sell its weapons around the world, both to generate profit and to exert political influence. This most recently and brutally includes Sudan, where the Emirates supply the Rapid Support Forces, an anti-government militia. Weapons furnished by the UAE have been instrumental in the ongoing civil war, now widely described as having descended into an RSF-perpetrated genocide. In October, video imagery emerged from Sudan showing RSF soldiers indiscriminately slaughtering civilians in Darfur. Reports of rape, torture, and other atrocities at the hands of the RSF are now widespread, and a current “low estimate” of people murdered by the RSF during its recent takeover of the Sudanese city of El Fasher is 60,000, according to a recent report by The Guardian. The Trump administration determined in January that the RSF’s massacres constituted a genocide, echoing assessments by the Biden administration and human rights observers.

The RSF has been able to rapidly overtake the Sudanese army with the help of weapons from Anduril’s new partner. An April investigation by France 24 found EDGE subsidiary International Golden Group funneled tens of thousands of mortar rounds into Sudan for use by the RSF.

Nathaniel Raymonds, who leads the Humanitarian Research Lab at the Yale School of Public Health, told The Intercept mortars were among “three weapons systems that went into the hands of RSF that changed the course of the war.”

Raymonds, whose office at Yale previously partnered with the State Department to monitor atrocities in the Sudanese civil war, described Anduril’s joint venture as “mind-boggling” given the role Emirati drones and other weapons have played in facilitating the RSF’s genocide. “You have a DIA and [State Department] assessment that in a just world will trigger Leahy Act and shut this thing down from day one,” Raymonds said, referring to legislation that nominally prohibits the provision of assistance to foreign militaries that have committed major human rights violations.

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Neither Anduril nor EDGE Group responded to a request for comment. A November press release from both companies noted “EDGE and Anduril will work closely with U.S. and UAE authorities to ensure full compliance with applicable laws and regulations including trade compliance rules and regulations.”

A 2024 report by Human Rights Watch noted the use of drone-delivered thermobaric bombs sold by EDGE. In October, The Guardian reported the RSF’s use of armored personnel carriers manufactured by an EDGE subsidiary. In 2024, a United Nations panel of experts deemed the UAE’s backing of the RSF as “credible,” and this year a bipartisan group of U.S. lawmakers issued a statement criticizing “[f]oreign backers of the RSF and SAF–including the United Arab Emirates.” The Wall Street Journal reported in October that both the State Department’s intelligence office and the Defense Intelligence Agency agreed the UAE was supplying the RSF with a wide array of weapons, vehicles, and ammunition. The UAE has repeatedly denied this support despite ample evidence.

Jean-Baptiste Gallopin, a researcher at Human Rights Watch who has tracked the flow of arms into Sudan, told The Intercept that EDGE Group’s products have exacerbated the horror of the ongoing war. “The rapid support forces, which we found responsible for crimes against humanity across Sudan, has made widespread use of armored vehicles made by Nimr, a subsidiary of Edge Group,” he said. “The name of Adasi, another subsidiary of Edge Group which specializes in drone technology, appeared on crates of Serbian-made 120mm munitions that the RSF has been using and which equip some of their quadcopter attack drones.” Nan Tian, a senior researcher at the Stockholm International Peace Research Institute, added that the Nimr vehicles are armed with “a gun that is made by KNDS which is a French-German arms maker. KNDS has a military partnership with EDGE Group.”

Raymonds argued that “not since Operation Cyclone,” the CIA effort to arm the Afghan mujahideen, “has there been a covert action by any nation state to arm a paramilitary proxy group at this scale and sophistication and try to write it off as just a series of happy coincidences.”

EDGE was launched at a 2019 inauguration ceremony overseen by Mohamed bin Zayed Al Nahyan, the crown prince of Abu Dhabi, and consists of over 30 subsidiaries spanning bombs, drones, ammunition, and various military and intelligence software systems. EDGE’s chair of the board, Faisal Al Bannai, is a businessman and adviser to the prince.

EDGE isn’t the only Emirati weapons company, but the conglomerate represents the bulk of the country’s arms industry by volume and illustrates the amorality of its export policy, according to Sam Perlo-Freeman, a researcher with the Campaign Against the Arms Trade, which has advocated for an arms embargo against the UAE. “As a state-owned company, they will be used as an agent of Emirati state policy,” he said. “Arms supplies to allies and proxies across the Middle East, North, and East Africa has been for quite a while a major facet of Emirati state policy.” This has manifested beyond furnishing arms to the RSF, with the UAE arming militaries in Libya, Somalia, and the ongoing genocidal war in Tigray. “There’s very few conflicts in the in the wider region that the UAE haven’t had a hand in, and very often a rather malign hand.”

Reports of EDGE wares winding up in the hands of armed proxies stretches back over a decade.

A 2013 report by the United Nations Security Council found International Golden Group facilitated the import of hundreds of thousands of rounds of ammunition into Libya in violation of a global arms embargo.

In 2019, a report by Arab Reporters for Investigative Journalism found UAE-backed combatants in the ongoing Yemeni civil war armed with pistols manufactured by Caracal, an EDGE subsidiary.

As in Sudan, a nominal civil war waged within the Tigray region of Ethiopia was exacerbated by foreign entanglement and a flood of outside weaponry. In 2023, Gerjon’s Aircraft Finds, an aviation analysis Substack, published imagery indicating the import of guided bombs manufactured by Al Tariq, another EDGE subsidiary, for use by the Ethiopian Air Force, responsible for widespread civilian death during the Tigray war.

Anduril, most recently valued by private investors at over $30 billion, has a wide array of weapons in the U.S. and with its allies, including Australia and Taiwan. It works closely with the Department of Defense and has operated surveillance towers along the U.S.–Mexico border for nearly a decade. Its business has surged as it has cast its products as a vital tool in a tech arms race between the West and China, matching the company’s rhetoric positioning it as a lethal bulwark against autocracy.

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Luckey has long cast his company as a defender of democracy. “Soldiers who defend western values should all be superheroes with superpowers,” he tweeted in 2019. In an interview that year, Luckey explained backing democratic allies against “rogue nations” around the world: “I like working with the British,” he said. “Everyone’s a little bit different but more or less we all believe in western values and democracy and universal human rights.”

Anduril co-founder Matt Grimm similarly advanced the company’s moral case for an arms race on human rights grounds, describing China in a 2024 interview as the world’s “greatest evil,” denouncing the Chinese state’s “basic approach to human rights.” Grimm added that “I think they’re conducting an ongoing genocide with their Uyghur population, I think their approach to free speech, to political speech, to religious freedom, are fundamentally antithetical to how the West values human life and how we think about human rights.”

“The fact of Anduril saying they’re an arsenal of democracy and partnering with EDGE Group, it’s obviously ridiculous,” said Perlo-Freeman, “but it’s part of the broader picture of Western democracies treating the UAE as a valued partner and ally and shielding them from consequences.”

The post Anduril Partners With UAE Bomb Maker Accused of Arming Sudan’s Genocide appeared first on The Intercept.

According to a civil lawsuit filed by Feder against the college this week, the school administration never interfered with her programming until 2023, when she scheduled a screening of the film “Israelism,” a documentary by Jewish filmmakers about young American Jews coming to reject Zionism. Following Hamas’s October 7, 2023, attack and the start of Israel’s assault on Gaza, Emerson leadership pressured Feder to cancel the planned November screening.

Feder agreed to postpone and screened the film in February 2024. She then wrote an op-ed in the school paper criticizing Emerson’s treatment of campus speech about Palestine. And even as a crackdown across the U.S. on all things pro-Palestine got underway, she continued a longtime partnership with the Boston Palestine Film Festival.

Then, in August, Emerson abruptly ditched Feder and her program.

“Emerson terminated Ms. Feder, cancelled the entire Bright Lights program, and barred Ms. Feder from campus,” her lawsuit says.

Feder’s suit is the first of its kind in this time of campus repression. Filed in Massachusetts state court, the suit claims that Emerson violated Feder’s free speech rights and that, while it is a private college, it is nonetheless obligated to uphold First Amendment protections.

Private institutions are not as a matter of course subject to the First Amendment, which protects against government violations. Private colleges are, on the whole, permitted to enact greater restrictions on speech on their premises than public institutions.

Feder’s suit, however, claims that a Massachusetts law, Article 16 of the state’s Declaration of Rights, extends First Amendment protections usually applied to government violations of civil rights to private actors, too — including universities and colleges. (Emerson did not respond to a request for comment about the suit.)

The suit against Emerson is a test case. If successful, Feder’s effort could set a precedent for holding Massachusetts colleges — of which there are many — to legal account for constitutional violations of free speech. A minority of other states, including California, have similar statutes on the books, which could be deployed in a similar vein.

More broadly, Feder’s suit exemplifies ways those facing apparent retribution for pro-Palestine speech on campus have had to seek new ways to contest their school’s actions, including in the courts.

“If we don’t defend our rights vigorously, they will surely be taken away,” said Feder.

“It’s a scary time to be public in this way, but it’s also the highest expression of my Jewish values,” she said. “We all need to find the courage in this moment and push back against the attacks on speech — particularly on college campuses.”

Not a Budget Issue

Emerson claimed, according to Feder’s lawsuit, that it was terminating Feder’s position and canceling the Bright Lights program for budgetary reasons.

The suit directly challenges that claim: “The Bright Lights series was a very inexpensive program in comparison with other non-academic programs that were not cancelled, and Ms. Feder had recently cut the program budget even further.”

The lawsuit also notes that the series “was an extremely popular program and core to Emerson’s academic programs.” Forty percent of Emerson undergraduates are enrolled in the Visual and Media Arts department, to which the film series was consistently relevant, the suit says.

Other details in the suit suggest the termination was not a normal layoff over budget concerns.

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Feder was, due to provisions in her union contract, employed for 60 days after Emerson announced her termination. During that time, she was banned from campus and told she would be fired “for cause” if she made public statements about the Bright Lights series. Feder said that she had never previously heard of such requirements during a laid-off employee’s notice period.

According to Feder’s lawsuit, she was not laid off but terminated “for asserting her legally guaranteed right to freedom of speech and expression.” That speech involved screening an Israel-critical film and “support for Palestinians and student activism in support of the Palestinian cause,” she claims.

“Our film has played at hundreds of campuses in the U.S., is made by Emmy and Peabody-winning Jewish filmmakers, won the audience award for best documentary at the U.S.’s oldest and largest Jewish film festival, and tells what is arguably the defining story of American Jews in our time,” said Erin Axelman, the co-director of “Israelism.”

“Yet because our film is critical of Israel,” Axelman said, “we are seen as dangerous to universities who claim to care about learning, but who only seem to care about avoiding controversy and difficult conversations.”

Axelman noted that polling from the Israeli government showed over 40 percent of American Jewish teenagers believe Israel is committing a genocide in Gaza.

“Emerson’s behavior is pathetic, and history will judge them for it,” they added. “We stand with Anna.”

New Approach to Free Speech

If Feder’s attorneys can establish in court that the Massachusetts free speech statute applies to Emerson’s actions, it could spur the use of the law by other faculty, staff, and students in the state who believe their freedom of speech has been violated by private colleges retaliating against pro-Palestine activism.

According to the American Civil Liberties Union of Massachusetts, the state’s Supreme Court has not yet decided whether private colleges and universities are covered by Article 16 of the Massachusetts Declaration of Rights.

Schools have been sued under the act before. Emerson itself faced a lawsuit in 1989 from a professor who claimed she was denied a promotion and tenure on the basis of her expression of her political beliefs. The case was settled out of court, but an initial ruling from a judge clarified that the case had merit.

There are reasons to suspect that Emerson may not be held to account. Over the last 18 months, numerous public universities, which are unambiguously beholden to the First Amendment, have readily seen Palestine student activists arrested, speakers canceled, and faculty terminated.

Even if Feder’s suit does not lead to a ruling that private colleges must uphold First Amendment free speech standards in Massachusetts, the case is nonetheless an effort to hold Emerson responsible for its treatment of Palestine solidarity speech — to, at the very least, have to face a legal challenge. For the most part, schools have only shown a readiness to respond to pressures from pro-Israel groups and their allies in government.

Schools around the country have already faced a host of federal civil suits from individuals and groups under Title VI of the Civil Rights Act, which prohibits against discrimination based on shared ancestry.

The vast majority of these cases have been cases of alleged antisemitism, and schools including Columbia, Harvard, and New York University have reached settlements with student plaintiffs for monetary sums and agreements to change school policies, purportedly around combating antisemitism.

These legal remedies have, in certain cases, involved the further erosion of distinctions between anti-Zionist expression and antisemitism in campus disciplinary policies and conduct codes.

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Harvard, for example, agreed to adopt the contested International Holocaust Remembrance Alliance’s definition of antisemitism to deploy in its disciplinary processes as a part of settlement agreements. The IHRA definition, which has been used to include criticisms of Israel as examples of antisemitism, was officially embraced by the Biden administration and, in turn, the Trump administration has used the expansive view of antisemitism for its own political attacks.

Meanwhile, there have been a smaller number of lawsuits against universities for their treatment of pro-Palestine students or for discrimination against Muslim and Arab students. Pro-Palestine students, for instance, sued Columbia in February for alleged Title VI violations.

Already a “Chilling Effect”

At a time when the Trump administration is targeting Palestine solidarity activists for deportation, and right-wing doxing carries higher risks than ever, there are a number of reasons why individual students, staff, and faculty members might fear coming forward as named plaintiffs in a lawsuit. Other burdens, like expense, can also make the courts a difficult route for anti-repression work. Feder, for example, has launched a fundraiser for her legal costs.

“There are not many available resources,” said Yaman Salahi, an attorney who focuses on corporate and government misconduct. “Second, whoever would come forward as a potential plaintiff is exposing themselves to a very high risk of retaliation from employers or future employers or future schools.”

Salahi said that a “chilling effect” was already present.

“This doesn’t mean people shouldn’t come forward. It’s very important that they do. But it does require being thoughtful and strategic,” Salahi said. “I do think that without more and more test cases to try to hold firm on what is supposed to be protected expression, we are going to see a pretty troubling slide in what those freedoms look like.”

The post This College Staffer Lost Her Job After Showing a Film Critical of Israel. Now She’s Suing Over Free Speech. appeared first on The Intercept.

Donald Trump is a wild card in Latin America. Who will he galvanize more? His natural allies, including leaders who share many of his culture-war obsessions? Or politicians and activists who see in Trump the long history of U.S. conquest made flesh, who bristle at his threats to seize the Panama Canal and bomb fentanyl labs in Mexico?

In trying to answer these questions, it’s helpful to take a moment to recall that Latin America, not too long ago, defied another controversial U.S. president on matters related to war and trade: George W. Bush.

By the time the Bush administration was gearing up for its 2003 invasion of Iraq, Latin America was beginning a remarkable run of elections. Leftists were coming to power in nearly every country south of Panama, many with ambitious agendas and outsized personalities. Among them were Hugo Chávez in Venezuela, Luiz Inácio Lula da Silva in Brazil, Néstor Kirchner in Argentina, and Evo Morales in Bolivia.

For a region that had long been under the sway of Washington, a run of dissent to Bush — dated, say, from Lula’s first election to presidency in 2002 to Chávez’s death from intestinal cancer in 2013 — was extraordinary and, for a time, extraordinarily successful. In Latin America, diplomats talked about a new “polycentric world,” while Beltway think tanks like the Council on Foreign Relations pronounced the Monroe Doctrine “obsolete.”

The tide eventually turned. Where more traditional conservatives had found it hard to compete at the polls against politicians like Lula and Chávez, a new generation of reactionaries began to find their footing, drawing energy from the tactics and issues that animate Trumpism in the U.S. — an obsession with gender orthodoxy, a defense of patriarchy and Christian supremacy, and a love of cryptocurrency. Latin America’s New Right stands opposed to “wokeismo,” used, as it is in the U.S., as a catchall for a range of social policies aimed at lessening class, gender, and racial inequality.

By examining this rollercoaster of a Latin American quarter-century, we might gain some insight into what to expect from Donald Trump’s second term, in Latin America and beyond.

The Rise and Fall of Left Dissent

Latin America’s leftist leaders of the aughts were resolute in their rejection of Bush’s “global war on terror,” refusing to let their security forces participate in the CIA’s transnational program of rendition and black-site torture. Brazil rebuffed U.S. demands to revise its legal code to make it easier to convict on terrorism charges; the governing Workers Party feared that such a move could be used, as one U.S. diplomat noted, to target “legitimate social movements fighting for a more just society.”

In 2005, Lula, Kirchner, and Chávez killed the much-anticipated Free Trade Agreement of the Americas, while Kirchner’s take-it-or-leave-it negotiating strategy for restructuring of Argentina’s national debt was held up as a model for lessening the debt burden of poor countries. Lula also worked to fortify the BRICS alliance as a counter to the World Trade Organization and resisted efforts to drive a wedge between Brazil and Venezuela.

Latin American nations pushed for an end to economic sanctions on Cuba, denounced Washington’s support of Israel’s 2006 invasion of Lebanon, and complained that the prison camp the U.S. set up in Guantánamo Bay, Cuba, was a mockery of international law. Venezuela, Brazil, and Argentina ignored Washington’s sanctions on Iran. Bolivia expelled the Drug Enforcement Administration in 2008 and USAID in 2014. Ecuador shut down a U.S. Air Force base. Most Latin American nations opposed NATO’s 2011 bombing of Libya, which resulted in Muammar Gaddafi’s downfall and execution.

Beyond any single dissent, Brazil advocated for a “Bolivarian” interpretation of international law, organizing nations around alleviating poverty, global warming, food insecurity, and the ills of the drug war. Brazil, Lula’s foreign minister said, has “no enemies” — notable, considering that Bush’s neocons had marked out the entire globe as a battlefield. Venezuela reinforced Brazil’s position, as Caracas worked with Cuba and Nicaragua to build an explicitly anti-imperialist bloc. High commodity prices, including for Chilean copper and Venezuelan oil, allowed governments to pursue ambitious social welfare programs, lifting millions out of poverty.

Brazil waged a multifront campaign in the United Nations, WTO, and World Health Organization to break the monopoly on intellectual property held by pharmaceutical companies, insisting on its right to produce generic HIV/AIDS drugs and other “essential medicines.” Brazil won that fight, changing global norms and widening access to lifesaving treatment.

Latin America’s progressives began to lose their advantage, however, with the 2008 election of Barack Obama. Where Bush’s braggadocio hardened hemispheric opposition, Obama’s diplomats played a patient long game that brought the region back into the fold.

Obama stepped up domestic oil drilling and gas fracking, while encouraging Canada to increase its fuel and electricity exports into the United States. This was all done to greatly lower the cost of energy and to “constrain” Chávez, which it did.

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Coups in Honduras in 2009 and Paraguay in 2012 ousted moderate social democrats. Washington didn’t orchestrate the overthrows, but Hillary Clinton’s State Department did legitimate them and armed the men who carried them out.

Those two small countries were low-hanging fruit. Brazil, with Venezuela contained, was the whole game.

There, Obama’s Justice Department provided critical assistance to corrupt investigators leading a legal witch hunt against the governing Workers Party, resulting in Lula’s imprisonment and the impeachment of his successor Dilma Rousseff. This “lawfare” campaign ultimately set the stage for the rise of the hard-right Jair Bolsonaro, a Trump ally in style and substance, who was elected president in 2018.

Then, a federal judge in New York ruled that Kirchner’s debt deal was invalid, obligating Argentina to pay its external debt in full. The judgment set loose the bond vultures on the country, sending its politics into a tailspin. Eventually, the pressure contributed to the 2023 election of Javier Milei, a self-declared anarcho-capitalist who never tires of shouting “Viva la libertad, carajo” — which roughly translates as “Liberty, motherfucker.”

The New Right

Bolsonaro and Milei, along with El Salvador’s Nayib Bukele, represent Trump’s potential base of support in Latin America.

Daniel Noboa, heir to a banana fortune, wouldn’t have had a shot at Ecuador’s presidency in, say, 2006, when Noboa’s father ran and lost to Rafael Correa, a left economist. But the culture wars have given the oligarchy a new luster. Young Noboa has adopted a Trump-like persona, skilled at social media, selling himself as simultaneously pro-business and anti-establishment, pro-Israel and anti-woke. Having plastered the country with posters of his image alongside those of Trump, Marco Rubio, and Elon Musk, Noboa is running close behind the leftist Luisa González in a presidential election that will go to a runoff in April.

Musk is a culture hero to men like Noboa, Milei, and Bukele; his fight against Brazil’s efforts to regulate social media — carried out through legislation aimed at muting disinformation and limiting right-wing extremism — became a rallying cause for the region’s conservatives. (Brazil so far has held Musk off, though Rumble and Trump’s Truth Social have just filed a lawsuit in a U.S. court alleging illegal censorship.

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In El Salvador, Bukele, a hip, baseball cap-wearing self-styled libertarian, presides over Dantesque displays of dehumanization: assemblies of hundreds of supposed gang members, their heads shaved, massed together naked and shackled. Held up as a model for not just for conservatives in Latin America, but up north, too, Bukele dispensed with due process, sparking the highest rate of incarceration in the Americas, higher even than the U.S. itself.

Psychological campaigns to destabilize elected leftist and centrist governments by amplifying lies and manipulating the institutions of democracy — the press, the ballot box, and the law — are nothing new in Latin America. The CIA ran dozens of such operations in the region. What is novel about the New Right is the appearance of grassrootedness, the sense that pressure is building spontaneously from a multitude of sources, that the right represents not a defense of the status hierarchy but a desire for anti-systemic change.

The ties binding Latin America’s New Right and its American counterparts are thickening, the result not of viral memes and social media posts but the organizing efforts of billionaire funders, conservative church leaders, libertarian activists, right-wing influencers like Steve Bannon, and political parties, such as Spain’s Vox. Anti-vaccine predators target poor communities in Mexico the way they target poor communities in the U.S. Libertarians make common cause with anti-abortion and anti-trans activists, ultraorthodox Catholics, evangelical dominionists, Christian Zionists, and the Latin American branch of New Apostolic Reformation — recently highlighted as key to understanding Christian support for Trump.

Trump’s Regional Incoherence

Trump could run the table in Latin America.

With former Florida Sen. Marco Rubio as his secretary of state and hard-liner Mauricio Claver-Carone his “special envoy” to Latin America, one could imagine a scenario where the U.S. takes Nicolás Maduro out; squeezes Cuba until it breaks; ousts Daniel Ortega in Nicaragua; keeps the Argentine peso artificially inflated to help Milei win congressional elections in October; and drives a deeper wedge between an already split left in Boliva, finally bringing about a rightist restoration in that lithium-rich nation. Both Chile and Colombia are governed by leftists with bad poll numbers. Who knows what conversations are being had to influence their upcoming elections.

Then there is Brazil, where the charges against Lula have been thrown out, the investigation that led to his conviction shown to have been corrupt and politically motivated. Released from prison, Lula ran against and beat Bolsonaro in 2022, winning a third term as president. Bolsonaro responded to defeat by encouraging a putsch that would have kept him in power, including a plot to poison Lula. He’s currently banned from running in Brazil’s next presidential election, though his supporters have been lobbying Rubio to pressure Lula to find a way to to lift the ban and to let Nazis and antisemites post on Brazilian X. 

This scenario — which includes not just a rollback of the left but a nurturing of a pan-American Trumpism — assumes coherence and patience that might be beyond Trump’s capacity. Trump hasn’t yet appointed ambassadors to Brazil and Colombia, nor an assistant secretary of state for the Western Hemisphere. And the freezing of foreign aid to the region, including money earmarked for the security forces, limits Washington’s room to maneuver.

Trump will most likely, at least at first, pursue spasmodic action in the hemisphere. He’s already flip-flopped twice on Venezuela. First Trump said Maduro had to go. Then it appeared that his administration made a deal where he could stay, and let Chevron pump oil. Most recently, however, he surprised Chevron by announcing he was revoking the company’s waiver to work in Venezuela, apparently as part of a deal to keep Republican members of Congress in line during budget negotiations.

As his presidency moves ahead, Trump will pick — according to his own impulses — fights with Latin America over China, migration, tariffs, deportation flights, and drug policy, and as he does, he’ll blow the chance of building a unified hemispheric movement in his image. His repeated threats that he’ll coerce Canada into becoming part of the U.S. has alienated him from Canadian conservatives. Colombians, according to one poll, mostly like Trump — but not if his continuing threats against Panama, which once was a Colombian province until the U.S. split it off in 1903 to build the canal.

Trump’s fickleness prevents him from putting forth a coherent foreign policy and building a durable international coalition. Yet this disadvantage is offset by the fragility of the Latin American left.

For now, activists continue to mobilize a wide variety of social movements aimed at making a fairer world and progressives continue to win elections. A rough regional count has more than 470,000,000 people, out of a total population of about 620,000,000, living in countries governed by presidents who call themselves socialists or social democrats.

Yet left politicians tread treacherous ground, unable to command the kind of rhetorical hegemony their comrades did two decades ago. Where Chávez energized the hemisphere’s left, his hard-to-defend successor, Maduro, exhausts it, forcing Brazil, Colombia, and Chile to waste energy debating what to do about Venezuela.

The unity that existed when the region pushed back against Bush no longer exists. Each center-left country seems an island unto itself, their governments unable to pass their reform agenda and incapable of building stabilizing coalitions. Lula still works with the BRICS on efforts to find a currency other than the dollar to do business. “Trump’s tariff threats won’t stop our determination,” he said recently, to find a way to do business that “doesn’t depend on the dollar.”

He is, however, boxed in at home, his popularity still frustratingly just a point or two above Bolsonaro, despite all of the latter’s crimes. Lula may have to run again in 2026. If he does, it will be a sign of the center-left’s weakness, not strength — an indication of Bolsonarismo’s vitality and of its opponents’ failure to offer an alternative, other than turning again to Lula, who will be 80 years old. Over the last few decades, a humane pope, raised in Peronist Argentina, has renewed progressive Christianity. The 88-year-old Pope Francis, though, is ill and weak, and ascendent Catholic reactionaries are giddy thinking he might not be long for the world.

Only Mexico’s Claudia Sheinbaum operates from a position of authority. Her expansion of the welfare state is enormously popular with Mexicans, with polls showing that a vast majority of the country backs her in her contretemps against Trump. Even as she delicately handles the U.S., she remains bold in putting forth a post neoliberal vision of social citizenship.

The Fragile Imbalance

Elections are fought on a knife’s edge, for the votes of citizens tired of crime, corruption, and inflation. In their weariness, the allure of being called to a fight is tempting. But it’s mostly the New Right doing the mustering, filling the void created by the left’s disorientation with politicized meaning. Left-wing hegemony has given way to an expansive right-wing conspiricism, a project of crypto-worldmaking ever more baroque in its details.

As in the U.S., Latin America’s New Right composes its own demonology as it grows: globalists, Judith Butler, George Soros, climate scientists, reporters, government workers, especially teachers and public university professors, migrants, and imagined pedophiles. “Con mis hijos no te metas” — “Don’t Mess With My Kids” — is the name of a Peruvian movement that has gained influence in the government, which last May decreed that intersex and transgender people were “mentally ill.” The phrase “gender equality” has been struck from Peru’s school textbooks.

Milei’s support for Israel is as “unwavering” as is his backing of Trump, even if, for Milei, Trump’s tariff policy poses a greater moral dilemma than Israel’s genocide in Gaza.

The Argentine president’s defense of “freedom” — by which he means market freedom — requires constant mobilization in support of causes at odds, at least in principle, with libertarianism, including laws restricting abortion; the persecution of transgender people; collective mass incarceration; and attacks on free speech, the right to protest and assembly, journalism, public education, and teachers. The point is to dominate public discussion, Milei says, to constantly expand the conservative imagination. Otherwise, the advantage will slip back to “social justice” activists.

Milei, beloved by the editors of The Economist, has been recently implicated in cryptocurrency swindle. Argentine prosecutors have launched an investigation into the scam, and the evidence seems damning. The organizers of the con — apparently the same people who ran Melania Trump’s coin sale — had channeled money to Milei’s chief of staff, his sister Karina Milei. “I control that n****,” one of the accused in the scam texted, referring to the president. “I send $$ to his sister and he signs whatever I say and does what I want.”

The fragile imbalance between right and left power manifests in Latin America’s stance toward Europe: As he did with Bush’s earlier militarism, Lula has criticized the U.S. backing of Ukraine in its defense against Russia, insisting that only diplomacy can resolve a conflict decades in the making. For his part, Milei, when Joe Biden occupied the White House, pledged his undying support to Ukraine’s president, Volodymyr Zelenskyy. “I was the first to defend Ukraine against Russia,” he said; “You will always find me on the right side of history.” 

Milei even announced that Argentina intended to join NATO, extending the North Atlantic military alliance to the South Atlantic, but then history changed sides. Now, courting Trump and needing Washington to approve a loan from the International Monetary Fund, Argentina has backed away from Zelenskyy, with Milei instructing his ambassador to the United Nations to abstain in a vote condemning Russia’s invasion of Ukraine.

Milei seems unfazed by his faithlessness, holding himself up as a model for his own followers: “Every day I relentlessly wage the culture war.”

Viva la libertad, carajo.

The post Latin America’s New Right Ushers in Pan-American Trumpism appeared first on The Intercept.

“The security forces did not allow me to enter the port. They kicked me out by force,” recalled Beheşti. To his great surprise, he said, the security officers told him “‘No, you are on the blacklist. We will not let you go and see your ship.’”

It was the latest roadblock for Beheşti and his fellow activists from an international coalition that has been trying since April to deliver humanitarian aid to Gaza. They had already struggled to find countries that would lend their flags to the ships in the flotilla, as such a move could be seen as antagonistic to Israel. Once they did obtain flags, the flotilla planned to depart from Turkey, which famously supported a 2010 effort to break Israel’s siege of Gaza. But now, even though the Conscience has secured a flag and the support of U.N. rapporteurs, Turkish authorities are continually blocking its departure.

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The mission is personal to Beheşti, whose father was shot and killed by an Israeli soldier during the 2010 effort, when military forces stormed aboard and opened fire. Five weeks ago, after he was told he’d been blacklisted by the port, Beheşti and other organizers launched a sit-in, using chains to effectively block the port entrance, in protest of the Turkish government’s obstructions. 

Lawyers for the flotilla have also filed an administrative lawsuit and a criminal complaint against the Port Authority, both alleging misconduct in obstructing the aid mission.

Turkish authorities at the port and Ministry of Transportation have not made a public statement about the flotilla, and did not respond to attempts by The Intercept to reach them, nor did the Turkish Embassy in Washington, D.C.

Turkey is quietly blocking the flotilla’s departure even as its leaders have been among the most vocal supporters of Palestine on the global stage. Gönül Tol, founding director of the Middle East Institute’s Turkey program, attributed the government’s posture to President Recep Tayyip Erdoğan’s domestic standing. 

In light of his party’s recent defeats in Turkey, “he’s not strong electorally” and must be cautious on foreign policy, Tol said. Turkey’s weak economy is dependent on investments by Western and Gulf countries, and Erdoğan would be reluctant to risk those relationships now.

In speech, Erdoğan maintains public support for Gaza, Tol said, as among the Turkish public “pro-Palestine sentiment is very strong, especially among the constituency that Erdoğan wants to keep on his side.” At the same time, despite Turkey’s trade restrictions with Israel, the country still helps Azerbaijani oil get to Israel via a BP-operated pipeline through the country.

“His words don’t really match his actions,” said Tol. “He has to sound tough. … But there are limits to what he can do.”

She continued, “Punishing Netanyahu will come at a cost to Erdoğan.”

Bureaucratic Hurdles

The Freedom Flotilla Coalition, an alliance of human rights organizations, has periodically attempted to break Israel’s illegal blockade of Palestine since 2010. That first mission ended when Israeli forces stormed the Turkish aid vessel Mavi Marmara and opened fire, killing 9 Turks and one Turkish American. 

This year, amid Israel’s ongoing assault on Gaza, the coalition planned to conduct a “Break the Siege” mission in late April. That mission was meant to include three boats carrying 5,500 tons of aid, along with nearly 1,000 participants from 52 countries, according to organizers.

But their original April departure had to be rescheduled when Guinea-Bissau, which originally flagged one of the vessels, abruptly withdrew its flag the day before departure. The flotilla has continued seeking a flag for that passenger vessel, the Akdeniz; its outreach to countries including South Africa, Ireland, and Spain did not pan out, said organizers, who are now in talks with Venezuela and Nicaragua. The flotilla’s cargo ship, the Anadolu, wound up delivering the aid to an Egyptian port in June, where it was unloaded into trucks and driven to Gaza. 

That left the Conscience, a pleasure yacht owned by the Mavi Marmara Freedom and Solidarity Association, whose president is Beheşti. Though the Conscience would carry significantly less aid than the cargo ship, organizers stress the significance of breaking the siege with passengers aboard.

Over the summer, flotilla organizers negotiated with the Turkish government for passage, but Turkish authorities repeatedly refused to allow the ship to depart, according to Hüseyin Dişli of Worldwide Lawyers Association, or WOLAS, a nonprofit organization providing legal counsel to the flotilla. This was despite multiple concessions from the flotilla, including agreeing that the Conscience would depart from Istanbul empty, only picking up passengers at European ports, and that it would not carry any Turkish nationals.

By mid-July, the flotilla seemed to have gotten over the hurdles. And on July 31, the passenger vessel was fully prepared and more than up to code, and hundreds of volunteers from multiple countries were ready to sail, so Beheşti took the final step: requesting departure papers from the Istanbul Port Authority. 

This is a simple administrative task that typically takes less than an hour, said Beheşti; hundreds of ships receive departure papers to move out of the Port of Istanbul each day. The Conscience had already received such papers weeks earlier when it needed to change locations for repairs. “We made sure, technically and procedurally,” everything is correct, he said. 

But days passed, then weeks, and the departure papers still didn’t arrive. Instead, the port requested more inspections. Beheşti agreed, only to then be informed by the Port that there would be no inspection after all. The explanation, according to Beheşti, was that “the Ministry of Transportation has given instructions on this matter, and we will not allow this ship to set sail.”

“Two Faces”

WOLAS lawyers made a formal request on August 20 for public documents clarifying why the port would not provide departure papers. A few days later, Beheşti was turned away from the port by security forces, according to an administrative lawsuit that the group filed against the Port Authority on September 23 for illegally obstructing the ship.

According to the suit, which The Intercept translated from Turkish, WOLAS lawyers and Beheşti have also requested that the port provide documentation of the reason for him being blacklisted, but have not received any.

The lawsuit accuses Turkey of blocking the ship “for political purposes.” It continues, “in verbal conversations between the [Mavi Marmara] association officials and the defendant administration’s officials, it was clearly stated that the ship was not allowed to sail because of … the country’s international political balances, and because they were afraid of pressure from various actors at the international level.”

Dişli, the WOLAS lawyer, said the denial of exit papers is outside the scope of Turkish law. 

“Legally, it’s a huge surprise,” he said. “Under Turkish law there is no condition the ship didn’t meet.” 

He added that Turkey is potentially violating various provisions of international law that require freedom of navigation and prohibit the obstruction of aid. That includes the January decision from the International Court of Justice which imposed on states a “negative responsibility to not hinder civil society missions to deliver humanitarian aid” as part of its provisional ruling that Israel was plausibly committing genocide in Gaza.

Beheşti, whose sit-in at the port is ongoing, has appealed to several authorities, he said, including the chair of the Port Authority and senior transportation authorities. The lack of a response has left him to draw only one conclusion.

“The Turkish government have two faces,” Beheşti said. “They have to show themselves to support Palestinians. But at the same time, they have a different agenda with Israel.”

The post They Planned to Deliver Aid to Gaza by Sea — Then Turkey Shut Them Down appeared first on The Intercept.

The nations that the Trump administration is collaborating with to accept these expelled immigrants are some of the worst human rights offenders on the planet, according to the U.S. government’s own reports.

More than 8,100 people have been expelled in this manner since January 20, and the U.S. has made arrangements to send people to at least 13 nations, so far, across the globe. Of them, 12 have been cited by the State Department for significant human rights abuses.

But the Trump administration has cast a much wider net for its third-country deportations. The U.S. has solicited 64 nations to participate in its growing global gulag for expelled immigrants. Fifty-eight of them — roughly 91 percent — were rebuked for human rights violations in the State Department’s most recent human rights reports.

America’s preferred third-country deportee dumping grounds also receive uniform low marks from outside human rights groups. Only four of the 13 countries that have agreed to accept people forcibly expelled from the U.S. — Canada, Colombia, Costa Rica, and Panama — in 2025 were rated “free” by Freedom House, a nongovernmental organization that advocates for democracy and human rights and gets the bulk of its funding from the U.S. government. The rest of the countries – El Salvador, Eswatini, Guatemala, Honduras, Kosovo, Mexico, Rwanda, South Sudan, and Uzbekistan — were rated “partly free” or “not free.”

“It is not surprising the governments that would agree to these sketchy third-country removal arrangements would be countries with serious pre-existing human rights issues,” said Anwen Hughes, the senior director of legal strategy for refugee programs at Human Rights First. “But it is shocking that the United States would seek to remove third-country nationals to these destinations.” 

The most recent additions to America’s global gulag are among the least free countries on the planet. This month, the administration expelled five men — from Cuba, Jamaica, Laos, Vietnam, and Yemen — to the Southern African kingdom of Eswatini, an absolute monarchy with a dismal human rights record. The move closely followed the U.S. deportation of eight men to violence-plagued South Sudan, one of the most repressive nations in the world. South Sudan is Freedom House’s lowest rated nation, scoring 1/100. Eswatini, formerly known as Swaziland, scored 17/100, worse than perennial bad actors like Egypt and Ethiopia.

“The Trump administration cares nothing for human rights and wants these deportations to third countries to be punitive,” Yael Schacher, the director for the Americas and Europe at Refugees International, told The Intercept.

Last month, the Supreme Court ruled that the Trump administration could resume expelling immigrants to countries other than their own without any chance to object on the grounds that they might be tortured. The court’s decision has been a boon to the administration, which has been employing strong-arm tactics with dozens of smaller, weaker, and economically dependent nations to push them to accept expelled people. Trump cheered the court’s decision in a White House statement earlier this month.

“I say this unapologetically, we are actively searching for other countries to take people from third countries,” Secretary of State Marco Rubio said at an April 30 Cabinet meeting. “We are working with other countries to say, ‘We want to send you some of the most despicable human beings to your countries, and will you do that as a favor to us?’”

The Trump administration has sought or struck deals with or deported third-country nationals to Angola, Benin, Bhutan, Burkina Faso, Cambodia, Cameroon, Canada, Colombia, Democratic Republic of Congo, Djibouti, Dominica, Egypt, El Salvador, Equatorial Guinea, Eswatini, Ethiopia, Gabon, Georgia, Ghana, Guatemala, Guinea-Bissau, Guyana, Honduras, Ivory Coast, Kyrgyzstan, Liberia, Libya, Kosovo, Malawi, Mauritania, Mexico, Moldova, Mongolia, Morocco, Niger, Nigeria, Palau, Panama, Peru, Rwanda, São Tomé and Príncipe, Saudi Arabia, Senegal, South Sudan, Syria, Tajikistan, Tanzania, The Gambia, Togo, Tonga, Tunisia, Turkmenistan, Uganda, Ukraine, Uzbekistan, Vanuatu, Zambia, and Zimbabwe; these 58 were taken to task by the State Department last year for significant human rights abuses. Tuvalu and Santa Lucia were also cited in the report for having repressive laws on paper but were not found to enforce them in practice. Only four of the 64 total nations — Antigua and Barbuda, Cabo Verde, Costa Rica, and Saint Kitts and Nevis — received a clean bill of human rights health from the State Department.

With the green light from the Supreme Court, thousands of immigrants are in danger of being disappeared into this burgeoning network of pariah states. The recent budget bill, passed in Congress, will provide the Trump administration tens of billions of dollars to arrest, detain and expel immigrants. Some $14.4 billion is marked for new ICE transportation funds — a massive increase above the agency’s 2024 transportation and removal budget. “You’re going to see immigration enforcement on a level you’ve never seen it before,” said Trump’s so-called border czar Tom Homan, referring to the newfound largesse.

“When you’ve got countries that won’t take their nationals back, and they can’t stay here, we find another country willing to accept them,” Homan said, adding that the administration may not necessarily expel people to every country that agrees to accept third-country nationals, but wants the option on hand.

Experts say that third-country deportations are rooted in cruelty and not a lack of deportation options. Hughes, of Human Rights First, noted that Mexican nationals held in south Texas had been set to be deported to both Libya and South Sudan. (The Libya deportations were eventually blocked in court.)

“The Mexican border is right there. I’ve been doing immigration detention work for a very long time. I’ve never in my life seen Mexico refuse to take back one of its nationals, ever,” Hughes told The Intercept, noting that the administration appeared to be seeking out “really implausible destinations to send people.”

In April, Mexican President Claudia Sheinbaum said that her government had already accepted roughly 6,000 non-Mexicans from the U.S. for “humanitarian reasons.” Mexico has agreed to accept “third-country removals” from Cuba, Haiti, Nicaragua, Venezuela, Guatemala, El Salvador, and Honduras, said Thomas Giles, a longtime ICE official, during a recent federal court hearing. The Mexican government has refused to offer further information on third-country expulsions, although return receipts show spokespersons Alba Gardenia Mejía Abreu and Lourdes Fabiola Garita Arce have repeatedly read The Intercept’s questions on the subject.

While Mexico has been the largest recipient of third-country nationals in 2025, a growing number of other countries, from Latin America to Africa, have forged deals with the U.S. and accepted deportees from elsewhere.

In February, Guatemala, a country where “human rights defenders, journalists and political opponents were harassed and criminalized” last year, according to Amnesty International, announced it had struck a deal with the Trump administration to accept third-country nationals. The country has received around 110 Mexicans this year, according to data obtained in a Freedom of Information Act lawsuit by a team of lawyers and academics from the Deportation Data Project.

Honduras received around 650 Venezuelans this year, while around 560 Hondurans were expelled by the U.S. to Mexico, according to data from the Deportation Data Project. The researchers also found that Canada received a small number of people from India and that Colombia has received Venezuelan deportees.

The Trump administration has expelled hundreds of African and Asian immigrants to Costa Rica and Panama, including people from Afghanistan, Cameroon, China, India, Iran, Nepal, Pakistan, Sri Lanka, Turkey, Uzbekistan, and Vietnam.

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The administration also began using the notorious Terrorism Confinement Center, or CECOT, in Tecoluca, El Salvador, as a foreign prison to disappear Venezuelan immigrants in March. Andry Hernández Romero, a Venezuelan make-up artist who was expelled by the United States to the offshore prison, was recently released from CECOT following a prisoner swap with Venezuela. He said he was abused, sexually assaulted, and denied food, describing his time there as “an encounter with torture and death.”

Uzbekistan received more than 100 deportees from the United States, including not only Uzbeks but citizens of Kazakhstan and Kyrgyzstan, according to an April announcement by the Department of Homeland Security. The U.S. also inked a limited agreement with Rwanda while exploring a more “durable program.” Amnesty International recently called out that East African nation over reports of forced disappearances and evidence of torture and other ill treatment in detention.

The U.S. struck a deal with Europe’s youngest country, Kosovo, in June, to accept 50 deportees from other nations. Kosovo has already made an agreement with Denmark to rent out 300 prison cells for foreign nationals convicted of crimes who will be deported from Denmark at the end of their sentences. Human Rights Watch has warned the Balkans may become “a warehouse for migrants.”

Earlier this month, the U.S. expelled eight men to the newest nation on the planet, South Sudan. The State Department’s most recent assessment of the East African nation catalogs an enormous range of serious abuses, including reports of extrajudicial killings; disappearances by or on behalf of government authorities; instances in which “security forces mutilated, tortured, beat, and harassed political opponents, journalists, and human rights activists,” including documented cases of torture and other mistreatment of those in the custody of the National Security Service, such as beatings with sticks, whips, pipes, and wires; being subjected to electric shocks; being burned with melted plastic; raped; and subjected to other forms of sexual violence.

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Beyond that, South Sudan is subject to a U.N. warning about the potential for full-scale civil war and a State Department “Level 4: Do Not Travel” advisory. The department advises those who choose to go there to draft a will, establish a proof-of-life protocol with family members, and leave DNA samples with one’s medical provider.

The Trump administration renounced responsibility for the men it expelled to South Sudan. Asked whether they were in U.S. or South Sudanese custody, Homan lied. “They’re free,” the White House executive associate director of enforcement and removal operations told Politico. “They’re living in Sudan.” Neither part of his statement is true. The eight men have been held incommunicado in South Sudan — not Sudan — for weeks by the National Security Service. They have been unable to contact their lawyers or their families. The White House did not reply to repeated questions about Homan’s statement.

Soon after the South Sudan expulsions, on July 15, the administration expelled five men — from Cuba, Jamaica, Laos, Vietnam, and Yemen — to Eswatini. The State Department’s most recent human rights report on that kingdom refers to credible reports of arbitrary or unlawful killings, including extrajudicial killings; torture and cruel, inhuman, or degrading treatment or punishment by the government; serious problems with the independence of the judiciary; and the incarceration of political prisoners. The five men will reportedly be held in solitary confinement for an undetermined amount of time.

The government of Eswatini said the men are considered “in transit” and will eventually be sent to their home countries. Eswatini’s assertion that the men would be sent to their homelands contradicted claims by DHS spokesperson Tricia McLaughlin, who wrote on X that the deportees were “so uniquely barbaric that their home countries refused to take them back.”

The Trump administration’s third-country deportation deals are being conducted in secret, and neither the State Department nor the Department of Homeland Security will discuss them.

Lt. Gen. John W. Brennan, U.S. Africa Command’s deputy commander, told The Intercept no discussions of third-country deportations took place during his recent high-level engagements with Angola and Namibia and directed queries on the matter to DHS.

A State Department official, speaking on the condition of anonymity due to arcane departmental rules, also repeatedly insisted that “deportations are squarely in DHS’s way” and answers to The Intercept’s questions were actually “a DHS issue.” When The Intercept countered that the agreements were made by the State Department, the official asked: “Who’s the [point of contact] negotiating these agreements?” Asked if the official was admitting that the State Department had abdicated its diplomatic responsibilities to DHS, the official said: “No, I’m not. I’m not saying that. I don’t know.”

The latter refrain is common among government officials. “When we sign these agreements with all these countries, we make arrangements to make sure these countries are receiving these people and there’s opportunities for these people,” Homan claimed before admitting he was flummoxed by the agreements. “But I can’t tell if we remove somebody to Sudan — they can stay there a week and leave. I don’t know.”

The Intercept could find no corroborative information about a third-country deportation agreement with Sudan. The White House failed to respond to repeated requests for clarification.

Experts questioned the U.S. making deals with some of the world’s worst human rights offenders. “Generally speaking, there aren’t obvious reasons for a government to want to accept deportees who have no connection to their country. The countries that make these agreements are going to be the most desperate and may want concessions that they can’t obtain by other means,” said Hughes, who is also one of the lawyers representing the men exiled to South Sudan. “The U.S. government should be asking itself: ‘To what extent does it make sense to allow migration issues to run foreign policy?’ and ‘What, exactly, is the U.S. willing to bargain away for the sake of deporting a relatively small number of people?’”

Due to the secret nature of agreements, it is unclear what fate awaits people expelled to these outcast nations. The question of whether they would be deported again to their nation of origin, or another unrelated nation, where they face the possibility of persecution or abuse; be allowed to remain in the third country and under what circumstances; or be held in detention or prison, as in El Salvador, remains unknown.

Some people, including those expelled to South Sudan, also appear to have been sent without identification or travel documents, potentially leaving individuals in a legal limbo.

“Removing people by putting people on military or private aircraft that the United States entirely controls and then dumping them in countries that are willing to take them, without identification? This is new and dangerous,” said Hughes. “It’s not clear that there are any consistent requirements in terms of what status people will be issued or even if the U.S. is providing clear and accurate information to the receiving country as to these people’s legal situation.”

Experts have warned that while almost all African countries and nations in the Americas are parties to the U.N. Refugee Convention, countries like Kosovo and Uzbekistan are not. If they were to expel immigrants they received as part of their deals with the Trump administration, they would have no obligation under international law to screen deportees to ensure they are not sent to a country where they may face threats to their life or freedom.

Non-refoulement — derived from a French word for return — forbids sending people to places where they are at risk of harm. It is a bedrock principle of international human rights, refugee, and customary international law, and is embedded in U.S. domestic law. The Trump administration has not only abandoned this obligation but will also look the other way regarding violations by other nations.

State Department employees were recently instructed that future installments of its human rights reports — the same type that The Intercept relied on for this reporting — should ignore whether a nation had violated its obligations not to send people to countries where they would face torture or persecution. A State Department official failed to respond to repeated questions by The Intercept concerning the role the Trump administration’s own third-country deportations played in the new directive. 

Experts told The Intercept that the change in State Department policy was no coincidence, and the delay in issuing the annual reports — which are usually released in the spring — was likely tied, at least in part, to the administration’s third-country deportations and its willingness to flout international law. Trina Realmuto, the executive director of the National Immigration Litigation Alliance and another lawyer for the men expelled to South Sudan, offered her own assessment.

“It seems that leadership,” she explained, “is trying to eliminate the State Department’s reporting on human rights violations and non-refoulement because they evidence the hypocrisy of its third country removal policy.”

The post State Dept: Trump’s “Third Countries” for Immigrants Have Awful Human Rights Records appeared first on The Intercept.

Germany’s election results may at first seem like just another success for conservative and far-right forces. The Christian Democrats won the most votes of any party with 28.52 percent. Their leader, Friedrich Merz, who has pushed the party significantly rightward during his tenure, will likely be the next chancellor. The far-right Alternative for Germany, or AfD – Elon Musk’s cause célèbre – came second, winning just over 20 percent, or around one in five votes. The AfD will remain outside of any ruling coalition in the parliament, thanks only to an enduring postwar commitment from Germany’s other major parties to never form a coalition with an explicitly far-right entity.

The centrist Social Democratic Party earned record low results, with 16 percent, and fellow centrists in the Green Party lost a significant number of votes. Democrats in the U.S. would do well to learn from their mistakes, and instead take notes from Germany’s left-wing party, Die Linke, or The Left — the only party to dramatically exceed expectations on Sunday.

Based on the vote counts alone, this could seem counterintuitive: Die Linke only won 9 percent. As recently as a month ago, however, it seemed feasible that the party could fail to garner the 5 percent of votes necessary to earn seats in Germany’s parliament at all. The party outperformed, especially with young women voters; it won 27 percent of all first-time voters and gained 30,000 new members in the last month of the election campaign. Their surprise comeback offers a lesson in what is required to build — or at least begin to build — party political resistance to the far-right.

Die Linke’s relative successes, and the accumulating failures of the Greens and the Social Democrats, are further grounds to reject the centrist liberal insistence on bending to the right to keep the far-right at bay. The centrist strategy, aside from being morally turpitudinous, has been a losing one; it only serves to legitimize far-right frameworks and bolster right-wing parties.

Die Linke, meanwhile, gained significant ground with an unambiguously leftist economic platform, which also — and this is crucial — refused to throw minorities under the bus. They focused on so-called “bread and butter” issues like rent and the rising cost of living, transport, and pensions, and defended trans and immigrant rights. They ran as the only party to robustly oppose far-right politics with strong words and policies.

The election results undermine claims that the left must embrace “anti-woke” positions if we are to challenge the racist far-right. One German party specifically deployed this strategy and failed to win enough votes to enter parliament.

The Sahra Wagenknecht Alliance, or BSW, named after its famous leader, formed as a split from Die Linke early last year and pushed a program of economic redistribution and worker protections, alongside anti-immigrant and anti-LGBTQ+ stances — a nationalist social democracy, willing to treat many thousands of people as disposable, while pushing to segment the international working class with protectionist nation-state borders. Wagenknecht was not rewarded. Meanwhile, her former party’s clarity on class struggle as a clear priority, but intractable from race and gender struggles, appealed far more.

Hundreds of thousands of German voters disturbed by the rise of the far-right sought an anti-fascist alternative. This was particularly true after the Christian Democrats’ Merz caused public outcry in January when he pushed through a harsh anti-immigrant proposal in parliament by relying on votes from the AfD. The move was seen as a breach of the “firewall” prohibiting collaboration with far-right parties, upheld since 1945. The Christian Democrats may have won the most votes on Sunday, but it was nonetheless the party’s second lowest result in its history.

Most other major parties condemned Merz, but it was only Die Linke that had any real ground to stand on. The Christian Democrats, the Social Democrats under current Chancellor Olaf Scholz, and even Green Party leaders, have all to varying degrees spent the last decade-plus weakening the so-called firewall with their own support for harsh immigration restrictions. The German center’s commitment to supporting Israel and its genocide, while violently criminalizing support for Palestine at home, is matched only by the U.S.

Die Linke has also not been strong enough across the board when it comes to condemning Israel’s war crimes and Germany’s complicity in them, but it is also one of the only parties openly opposed to sending weapons to Israel. (The only other party was Wagenknecht’s, with its attempt to pair anti-imperialist foreign policy with domestic xenophobia and racism.) Die Linke candidates like Ferat Koçak, an outspoken advocate for Palestinian freedom, modeled what a thoroughgoing anti-fascist, anti-racist, pro-working class platform can look like – putting economic issues front and center, but refusing to pander to a notion of the working class that prioritizes white men. Koçak will be the first member Die Linke to ever win a seat in West Germany.

On Monday, the New York Times credited Die Linke’s savvy social media campaigning for its surge in support – which was by far the strongest with young, urban, and particularly women voters. And there’s no doubt that the party’s TikTok and Instagram game is strong. One of Die Linke’s leaders, 36-year-old Heidi Reichinnek, has over a million viewers across the platforms, where she posts well-edited, accessible, educational content to push the party’s core message. Jan van Aken, another co-leader, clearly expressed Die Linke’s message on mainstream talk shows and the like. Social and traditional media efforts were no more vital, though, than a mass door-knocking strategy, in which Die Linke candidates and organizers made a point to ask would-be voters about their challenges and struggles.

“I knocked on doors and when people said they voted AfD, I said ‘Okay, but if you want, you can still come to my office and I’ll check if your heating bill is too high,’” Ines Schwerdtner, another of the party co-leaders, said in a press conference on Monday.

There are, of course, limits to mapping Germany’s multiparty liberal capitalist democracy onto the U.S.’s two-party leviathan. Certain similarities and patterns are, however, too strong to ignore. As is true with establishment Democrats, the German parties that span the liberal-to-conservative center have all lurched rightward on anti-immigrant rhetoric and policy in the last decade, while attempting the impossible balancing act of serving capitalist interests and claiming to stand for the working class. Redistributive economic reforms and state investment in social welfare have been insufficient. Ideological commitments to austerity pervade, bolstering the right-wing, anti-immigrant myth that there is too little to go around.

Concerns about fascism from the lips of figures like Merz can ring hollow when AfD leaders have accused — with good reason – the Christian Democrats of copying their far-right anti-immigration program. Likewise, former President Joe Biden and Vice President Kamala Harris warned of the fascistic threat of Trump, but were complicit in genocide, the criminalization of left-wing and pro-Palestine protest, and racist fearmongering over immigration and crime. These liberal capitalists have failed to offer a bulwark to the right, let alone an alternative.

Die Linke’s example is not a clear road map to anti-fascist victory; the AfD earned twice as many votes and further cemented gains in its strongholds in Germany’s east. The mistake, though, would be to treat the German election as a story of political polarization, in need of centrist correction. There has been a repudiation of the liberal center: The Green Party, a green capitalist liberal party that has drifted far from its leftist roots, lost 700,000 voters to Die Linke compared to the 2021 elections; the Social Democrats, who will likely form the governing coalition with Merz’s party, lost 560,000 votes to Die Linke.

The neoliberal austerity paradigms that helped foster 21st century fascist movements will not be the answer. Die Linke’s proposal is a simple one: We don’t need to moderate fascism, we need to oppose it.

Correction: February 26, 2025
This story has been updated to reflect that, while its numbers were down, the Green Party did not score a record-low vote.

The post Grow a Spine: Democrats Have a Lot to Learn From the German Left appeared first on The Intercept.

In 1982, a group of conservative students and professors gathered at Yale Law School giddy with the opportunity offered by Ronald Reagan’s presidency. They spent the time discussing the perils of federalism, decrying the cultural influence of “coastal elites,” and listening to speakers who excoriated everything from New Deal politics to the legalization of abortion and its impact on “acceptable sexual behavior.” This relatively small crew of around 200 began the process of building a language and a culture around constitutional originalism, a designed approach of interpreting the Constitution very narrowly based on what the framers — all white, all men, all Christian — supposedly meant at the time they wrote it. They named the new group the Federalist Society as a bit of an inside joke. One of the organizers wrote to invite future Supreme Court nominee Robert Bork to help them, saying that the group “settled on Federalist Society as a name which I suppose makes up in euphony what it lacks in accuracy. If you have any brilliant ideas for a better name, however, that would be splendid.”

Legal scholars from Bork to future Solicitor General Ted Olson and future Supreme Court Justice Antonin Scalia — then a law professor just months away from his first federal judgeship — spent the weekend deep in conversation with adoring students. They were all convinced that there was a desperate need for an antidote to what they believed was insidious left-wing bias in law schools. One of the student organizers, Steven Calabresi, recalled that “part of Reagan’s policy was to build up forces in battleground nations in order to topple enemy regimes, and I thought of us as kind of the same equivalent in law schools.”

Perhaps no speech better articulated the overarching mission of this new endeavor than that of Bork, who had recently been appointed to the U.S. Court of Appeals for the District of Columbia Circuit by Reagan, when he told the gathered students that the courts were legislating with made-up constitutional rights:

This is a process that is going on. It happens with the extension of the equal protection clause to groups that were never previously protected. When they began to protect groups that were historically not intended to be protected by that clause, what they are doing is picking out groups that should not have any disabilities laid upon them.

Given that Bork had excoriated the Civil Rights Act as being grounded in “unsurpassed ugliness” and had opposed Griswold v. Connecticut, which granted married couples the right to contraception, those who read the speech reasonably concluded that Bork did not include historically marginalized groups as meriting protection. This seminal speech was later invoked in Bork’s Supreme Court nomination hearings and helped sink his chances at confirmation.

The weekend was a smashing success, with one prominent attendee comparing it to Woodstock for right-wing legal activists. The attendees left convinced that they were a silent majority, despite all evidence to the contrary. They believed that if they could make it socially permissible, many more students on college campuses would come out against liberalism. They emerged from the gathering energized to build the Federalist Society, a new effort to train and promote conservative-minded lawyers into prominent positions, with an eye toward installing far-right judges. Backed by a who’s who of right-wing money, the fledgling group quickly grew from a handful of grassroots chapters on college campuses into a million-dollar organization with headquarters in Washington, D.C., and at least 75 campus affiliates. One of its initial backers was the John M. Olin Foundation, the force behind the establishment of business-friendly law and economics programs at law schools throughout the country.

The Federalist Society scoped out the legal aspect of Falwell and Weyrich’s new strategy, and it found that abortion proved to be an excellent litmus test for likely members of the radical right. It turned out that young and ambitious legal minds who had an antipathy to Roe v. Wade were far more likely to be on board with the full agenda to assert control and maintain the status quo of right-wing power.

Edwin Meese, a top aide to Reagan, hired many “Federalists,” as they came to call themselves. Other GOP operatives helped young, newly graduated Federalist Society lawyers find jobs. The movement was riding high when Chief Justice Warren Burger informed Reagan of his intent to retire in 1986. Reagan, in his second term with no reelection to plan for and chastened by the backlash to his Sandra Day O’Connor Supreme Court nomination, did two things: He moved to elevate right-wing ideologue William Rehnquist to occupy the position of chief justice. Then he nominated Federalist Society superstar Scalia to replace Rehnquist.

They were also exhausted. They voted to confirm Scalia the same day as the vote on Rehnquist. The Democrats had little fight left in them, and they had spent all of their political capital. Besides, the junior nominee was relatively unknown outside his own conservative legal circles, without an established paper trail on hot-button issues — a profile that became a staple of Federalist nominees. Scalia was confirmed unanimously by the Senate and went on to become one of the most right-wing justices in the history of the Supreme Court, upending norms by using oral arguments as political theater and writing scathing dissents in cases in which he was outnumbered.

The following year, Justice Lewis Powell — of the infamous Powell memo — announced his intention to step down, giving Reagan yet another opportunity to shape the court. Reagan drew again from the same well, nominating Federalist Society founding father Bork. The man who had used the original conference to decry “the gentrification of the Constitution” and to claim that states should be able to ban abortion and define “acceptable sexual behavior” was up. The new legions of Federalists were ecstatic about the possibility of having two of their own on the Supreme Court.

But Democrats and progressives were not going to be caught flat-footed again. Opposition to Bork’s nomination came fast and furious from civil rights and women’s groups. Kennedy, who led the opposition, responded to the nomination by saying:

Robert Bork’s America is a land where women are forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police would break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy. … President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

The extreme ideology on display at Bork’s initial Federalist speech came back to haunt him in the lengthy confirmation battle. Bork’s nomination was defeated in a bipartisan vote after months of bitter fighting. The seat ultimately went to Justice Anthony Kennedy in 1988. The Federalists were enraged and took a solemn vow to never let one of their own be sunk again.

Other groups were also hard at work using law and the courts to tilt culture in the direction of the radical right’s goals. In 1990, Christian televangelist Pat Robertson created the American Center for Law and Justice specifically to go head-to-head with the liberal American Civil Liberties Union. The ACLJ held a stable of attorneys ready to jump into high-profile battles worldwide focused on its version of family values. The organization, today led by former President Donald Trump’s personal attorney Jay Sekulow, has fought changes to the Kenyan constitution that would allow abortion, supported the government of Zimbabwe in its effort to criminalize homosexuality, and, closer to home, effectively blocked the construction of an Islamic cultural center near the World Trade Center site.

They subsequently joined in common cause to choose a series of high-profile cases that they believed would cement the idea that liberal reforms around civil rights and gender equity amounted to an attack on traditional religion. In California, the ACLJ and its allies aggressively defended Proposition 8, the ballot measure designed to ban same-sex marriage in the state. Their rhetoric presented out-of-touch elites trying to foist a liberal agenda on the rest of the nation. In 2018, the Alliance Defending Freedom advocated in the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, which dealt with religious business owners’ ability to refuse service to people based on their sexual orientation, for similar reasons.

Perhaps the feather in the cap of the movement architects — some of whom did not live to see this day — was their victory in the 2014 Hobby Lobby Supreme Court case. President Barack Obama’s Affordable Care Act had mandated long overdue reform that contraception be covered by insurance at no extra cost to the employee. The owners of the craft supply chain Hobby Lobby sought to deny their employees this coverage, using their go-to claim that it violated their religious beliefs. Core to the plaintiffs’ case was the claim that the owners of Hobby Lobby believed that some kinds of contraception were “abortifacients.” This term was straight out of anti-abortion propagandist John Willke’s playbook. It suggested, with no grounding in medical fact, that birth control was tantamount to abortion. In a hotly contested 5-4 decision, the court ruled in favor of Hobby Lobby, opening the door to the erosion of all sorts of hard-won gains in the name of moral objection. Tellingly, the court’s majority wrote that the fact that birth control did not actually cause abortions was irrelevant in this context. For a violation of religious liberty to occur, the plaintiff must only believe that it could happen. Four of the five justices who ruled in Hobby Lobby’s favor had Federalist Society ties.

The Hobby Lobby case was a massive triumph for the radical right, underscoring the effectiveness of the mutually reinforcing strategies. The movement had effectively used abortion as a Trojan horse to move the goalpost, limit access to contraception, and enshrine disinformation into the legal canon. For them, it was icing on the cake that the victory undercut the ACA, a crowning achievement for the much-loathed Obama administration. They had effectively reversed one of the most significant national steps forward for gender equity in decades.

In the first week of May 2022, a draft decision penned by Justice Samuel Alito was leaked to the press laying bare the intention of the majority of the Supreme Court to overturn Roe v. Wade. Many legal experts warned immediately that the draft was written to not only eradicate the current federal protection to abortion access, but also to lay the legal groundwork to undo a whole host of other rights guaranteed through the 14th Amendment protecting privacy and equality for all individuals.

Alito repeated a common refrain from right-wing leaders and judges all the way back to Bork that the original interpretation of the 14th Amendment was just wrong. The ground is being set to review and revoke so many hard-won gains, from access to birth control to marriage quality. Six of the current occupants of the Supreme Court were nurtured and backed by the Federalist Society: Justices Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, as well as Chief Justice John Roberts. The architects’ plan has finally come to fruition, but this is only the beginning, not the end, of their quest to make sure we’re all living in a world of their creation.

This article was adapted from the bestselling book “The Lie That Binds,” by Ilyse Hogue and Ellie Langford.

The post A “Woodstock” for Right-Wing Legal Activists Kicked Off the 40-Year Plot to Undo Roe v. Wade appeared first on The Intercept.

The U.S. military attacked Venezuela early Saturday morning, abducting its leader Nicolás Maduro and his wife, who now face narco-terrorism charges in a New York federal court. Eighty Venezuelan and Cuban citizens were killed by U.S. gunfire and airstrikes.

At least one U.S. missile struck an apartment building in the port city of Catia La Mar, killing an 80-year-old woman as she slept, seriously injuring another and displacing residents, according to The Associated Press. Trump described the attack as “successful” and “perfectly executed.”

A growing number of legal experts and lawmakers have called Saturday’s bombing of Venezuela and the abduction of Maduro illegal under both international law and the U.S. Constitution.

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And yet, the Trump administration is already threatening further military action against Venezuela and other sovereign nations in pursuit of his so-called “Donroe Doctrine,” the refashioning of the 1823 Monroe Doctrine, which American leaders with imperialist ambitions have used to justify U.S. occupations across Latin America throughout the 19th and 20th centuries.

“Under our new national security strategy, American dominance in the Western Hemisphere will never be questioned again,” Trump said Saturday at a press conference following the attack on Venezuela. “Under the Trump administration, we are reasserting American power in a very powerful way in our home region.”

Though Trump campaigned on the promise of ending foreign wars, even before the attack on Venezuela, his second term has been defined by a ruthless and interventionist approach.

He has already ordered military strikes in Iran, Iraq, Nigeria,Somalia, Syria and Yemen. Before abducting Maduro, the U.S. military attacked a Venezuelan port, and killed more than 100 civilians in bombings in the Caribbean Sea and Pacific Ocean. In addition, Trump continues to arm Israel as it violates the ceasefire with Hamas, grinding the genocide in Gaza into a third year.

Mere hours before the U.S. bombed Venezuela on Saturday, Trump threatened to attack Iran over its violent crackdowns on protesters, writing on social media that the U.S. is “locked and loaded and ready to go.”

And since carrying out the Venezuela raid, the Trump administration has taken aim at Cuba and Colombia, hinted at intervention in Mexico, renewed annexation aspirations in Greenland, and reiterated threats to Iran.

Here’s what the administration is saying about some of the other nations where they’re threatening military action, annexation, or regime change.

Venezuela

In an Air Force One press gaggle on Sunday, Trump said further strikes on Venezuela remained an option if the country’s government does not cooperate with the Trump administration.

“If they don’t behave, we will do a second strike,” Trump said.

In a televised speech hours after Saturday’s attack, Venezuelan Vice President Delcy Rodríguez criticized the attack as “barbaric” and “illegal” and called for the release of Maduro, who she called the country’s rightful leader. She vowed to “defend our natural resources” and said that Venezuela “will never return to being the colony of another empire.”

Rodríguez’s defiance seemingly undermined Trump’s statements that the U.S. would “run the country” and that Rodríguez is “willing to do what we think is necessary to make Venezuela great again.” Trump did not take her comments lightly and told The Atlantic on Sunday, “if she doesn’t do what’s right, she is going to pay a very big price, probably bigger than Maduro.”

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According to the Miami Herald, Rodríguez herself played a key role in negotiations with Washington as the Trump administration pondered who should govern Venezuela, or if the U.S. should fully dismantle the current socialist government.

Rodríguez returned to a more conciliatory tone later Sunday, writing on social media that Venezuela would “invite the US government to collaborate with us on an agenda of cooperation oriented towards shared development within the framework of international law to strengthen lasting community coexistence.”

Rodríguez — who was sworn in as Venezuela’s new president on Monday, despite Maduro’s claim in court that he remains president — addressed a portion of her statement directly to Trump, writing, “Our peoples and our region deserve peace and dialogue, not war.”

Cuba

During the post-Venezuela attack press conference on Saturday, Trump and Secretary of State Marco Rubio took turns answering a reporter’s question on Cuba, which has long shared close ties with Venezuela. Trump called Cuba “a failing nation” and that Cuba was “very similar” to Venezuela “in the sense that we wanna help the people in Cuba.” Rubio meanwhile took more direct aim at the Cuban government.

“If I lived in Havana and I was in the government, I’d be concerned at least, a little bit,” he said.

The following day, Rubio, a longtime opponent of the Cuban government and an anti-Communist child of Cuban immigrants, further hinted at possible military action in Cuba during an appearance on NBC News.

“I’m not going to talk to you about what our future steps are going to be and our policies are going to be right now in this regard,” Rubio said. “But I don’t think it’s any mystery that we are not big fans of the Cuban regime, who, by the way, are the ones that were propping up Maduro.”

Later that day, aboard Air Force One, Trump largely avoided questions about Cuba, preferring to discuss Venezuela. However, Sen. Lindsay Graham, R-S.C., who stood alongside Trump, spoke in more hawkish terms, saying, “Their days are numbered.” If the U.S. were to tell the Cuban government to surrender, Graham said, “You better take the offer,” rather than suffer the same fate as Maduro.

Graham’s combative comments drew Trump to say, “Cuba looks like it’s ready to fall.”

“I don’t know how they’re going to hold out,” Trump said. “Cuba now has no income. They got all of their income from Venezuela, from the Venezuelan oil. They’re not getting any of it.”

However, when a reporter asked whether Trump is considering military action against Cuba, Trump said: “We’re not gonna, I think it’s just gonna fall. I don’t think we need any action. It looks like it’s going down. It’s going down for the count. You ever watch a fight?”

Colombia

Colombian President Gustavo Petro was among the first world leaders to denounce Trump’s attack on Venezuela, which he said was a violation of international law and “threatens international peace and stability, specifically in Latin America and the Caribbean, and puts the lives of millions of people at grave risk.”

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In the months leading up to the attack, Petro was a constant critic of the Trump administration’s airstrikes on boats in the Caribbean, including the killing of a Colombian fisherman. The Trump administration sanctioned Petro in October, accusing him and his family of ties to the illicit drug trade, an allegation he flatly rejects, pointing to his record on seizing shipments of cocaine.

On Saturday, Trump said Petro “better watch his ass,” referencing cocaine shipments to the U.S. from Colombia. Such allegations of profiteering off the illegal drug trade is the basis of its criminal case against Maduro and his wife, Cilia Flores.

When NewsNation’s Libbey Dean asked Trump aboard Air Force One on Sunday whether a military operation focusing on Colombia was coming, the president said, “Sounds good to me.”

Trump also told reporters on Air Force One that Colombia was being “run by a sick man who likes making cocaine and selling it to the United States,” referring to Petro. “He’s not going to be doing it for very long,” Trump added.

Petro struck a defiant tone on Monday, releasing a lengthy statement on social media, saying that he was not “illegitimate nor am I a narco,” while denouncing the prospect of U.S. attacks.

“I swore not to touch a weapon again,” said Petro, a former leftist guerilla fighter with former militant group M-19 which struck a peace deal with the Colombian government in 1989, “but for the homeland I will take up arms again.”

Petro said that if the U.S. were to bomb any of the cartel groups “without sufficient intelligence, you will kill many children,” referring to a cartel tactic of shielding leadership by surrounding themselves with children. Such bombings would motivate guerrilla fighters to return to the mountains in hiding, he added.

“And if you arrest the president whom a good part of my people want and respect, you will unleash the popular jaguar,” he said referring to the Colombian people.

Mexico

During the wide-ranging Air Force One meeting on Sunday, Trump threatened Mexico. “Mexico has to get their act together because they’re pouring through Mexico,” he said, referring to the drug trade, and claimed that “the cartels are running Mexico.” Since his first term, Trump has floated the idea of attacking Mexico’s drug cartels. In April, reports surfaced that the administration had been seriously considering drone strikes in Mexico.

“We’re going to have to do something,” Trump said on Sunday. “We’d love Mexico to do it, they’re capable of doing it, but unfortunately the cartels are very strong in Mexico.”

In early 2025, Mexican President Claudia Sheinbaum said she rejected Trump’s offer of sending U.S. soldiers to Mexico to help fight the country’s cartel groups. “Sovereignty is not for sale,” she said at the time. “Sovereignty is loved and defended.”

Sheinbaum on Monday reiterated her stance against foreign intervention in a speech, saying, “Unilateral action and invasion cannot be the basis of international relations in the 21st century; they lead neither to peace nor to development.”

“Therefore, we state clearly that for Mexico, and so it must be for all Mexicans, the sovereignty and self-determination of peoples are not optional or negotiable; they are fundamental principles of international law and must always be respected without exception,” she said.

Greenland

Before taking office, Trump expressed his desire to annex Greenland from Denmark, which currently controls the Arctic territory. The autonomous territory is rich in rare earth minerals, such as lithium and titanium, which are key to making phones and computer chips. But its location, the U.S. has claimed, is also militarily strategic — though some experts say Trump’s claims of Russian and Chinese warships near Greenland are overblown.

In March, Vice President JD Vance visited the territory to pitch the idea of annexation while offering reassurance. “We do not think that military force is ever going to be necessary,” he said. Last month, Trump ramped up his annexation efforts by appointing Louisiana Gov. Jeff Landry as a special envoy to Greenland. “We have to have it,” Trump said at the time.

Trump teased future action to seize Greenland on Sunday. “We’ll worry about Greenland in about two months,” he told reporters, later specifying he meant 20 days. “We need Greenland from the standpoint of national security, and Denmark is not going to be able to do it.”

When a reporter asked how he would justify a claim to Greenland, Trump said he didn’t want to talk about Greenland, despite having just offered a lengthy comment on Greenland. “I’ll just say this … the European Union needs us to have it, and they know that,” the president said.

Leaders from both Greenland and Denmark criticized Trump’s annexation plans. Danish Prime Minister Mette Frederiksen on Monday issued a warning that if the U.S. were to attack Denmark’s Greenland, an ally of the U.S. through the North Atlantic Treaty Organization, a strategic military alliance forged after World War II, the whole of NATO would collapse.

“I believe one should take the American president seriously when he says that he wants Greenland,” Frederiksen said in the interview, according to a translation from Bloomberg.

“But I will also make it clear that if the U.S. chooses to attack another NATO country militarily, then everything stops, including NATO,” she added, “and thus the security that has been established since the end of the Second World War.”

Iran

It’s not just the Western Hemisphere that is the focus of the Trump administration. After talks in the U.S. between Trump and Israeli Prime Minister Benjamin Netanyahu last week, the pair suggested further strikes on Iran could be coming as Israel continues to allege Iran is developing nuclear weapons, an assertion Iran rejects.

On Friday, as demonstrations sprouted up across Iran over the country’s faltering economy, Trump said the U.S. military was prepared to attack Iran if its government killed protesters.

“If Iran shots [sic] and violently kills peaceful protesters, which is their custom, the United States of America will come to their rescue,” Trump posted on his Truth Social platform on Thursday. “We are locked and loaded and ready to go.”

Around the time Trump made the statement, security forces had killed at least seven people at the rallies, according to Iranian authorities. In the days since, the death toll has risen to at least 19 people, with some estimates as high as 29.

In a vacuum, Trump’s comments appeared to stand in defense of the human rights of Iranian protesters facing brutal government repression. But the Trump administration’s heavy-handed response to protesters in the U.S. highlighted the stark contradiction between the president’s rhetoric abroad and actions.

This hypocrisy was quickly pointed out by the very Iranian leaders deploying violence against their own citizens. Iranian Foreign Minister Abbas Araghchi used Trump’s words to justify his own regime’s brutal crackdown. “Given President Trump’s deployment of the National Guard within U.S. borders, he of all people should know that criminal attacks on public property cannot be tolerated,” he wrote.

Trump doubled down on his willingness to attack Iran over the protests, telling reporters on Sunday, “We’re watching it very closely. If they start killing people like they have in the past, I think they’re gonna get hit very hard by the United States.”

In recent decades, the Islamic Republic of Iran has been rocked by waves of popular protests, all of which have been met by brutal force, killings, surveillance, and widespread arrests. Personal freedoms have ebbed and flowed in tandem with increasing political repression. The Iranian regime frequently uses external pressure for regime change to justify its repression.

Related

Israel Is Cynically Capitalizing on the Iranian Protests for Its Own Ends

The recent marches have focused on inflation, the rising cost of living, and soaring food prices as the Iranian currency lost half of its value to the U.S. dollar over the past year. While placing some blame on foreign interference, Iranian President Masoud Pezeshkian took the unusual step of nodding to government missteps as he moved to replace the country’s central bank chief.

Along with economic mismanagement, draconian sanctions by the U.S. and its Western allies have significantly contributed to Iran’s tanking economy, making it difficult for Iranian companies to do business internationally. Some of the U.S. sanctions ordered by the Biden administration stem from Iran’s violent response to a previous round of nationwide demonstrations in 2022, when Iranians protested the government killing of 22-year-old Mahsa Amini, who was arrested for not wearing a hijab.

The post The List of Countries Trump Is Threatening With War Keeps Growing appeared first on The Intercept.

The activists had come to protest the expansion of Camp Grayling, already the largest National Guard training facility in the country. The opposition had arisen a year earlier, when the military had proposed leasing more than 150,000 acres of forest land managed by Michigan’s Department of Natural Resources, doubling the size of the training installation.

The National Guard, though, did not make an appearance at the University of Michigan career fair. The activists proceeded with their plan anyway.

“Want blood on your hands?” read the flyers activists distributed on recruiting tables. “Sign up for a government job.” When the recruiters returned from lunch, two protesters rushed in, dousing the NSA recruiting table and two Navy personnel with fake blood sprayed out of a ketchup container. (The NSA did not respond to a request for comment.) The “Stop Camp Grayling” protesters were subdued, booked, and charged.

“We’ve seen over the years that the FBI opens very aggressive investigations based on a very low criminal predicate in cases against protest groups.”

Everything about the protest had been relatively routine, right down to the arrests, but the local and federal authorities saw something more sinister. According to public records obtained through a Freedom of Information Act request, the local sheriff’s office in Oakland County, Michigan, documented the incident in a case report as a hate crime against law enforcement. (The sheriff’s office did not respond to a request for comment.)

The FBI recorded the incident as part of a terrorism investigation.

“We’ve seen over the years,” said Michael German, a former FBI agent and fellow at the Brennan Center for Justice, “that the FBI opens very aggressive investigations based on a very low criminal predicate in cases against protest groups.”

Over the following months, according to the documents obtained by The Intercept and Defending Rights & Dissent, the FBI’s counterterrorism investigation unlocked additional federal resources, deepened coordination with military intelligence, generated sustained counterterrorism attention on minor acts of vandalism, and ultimately culminated in a six-person boots-on-the-ground operation conducting physical surveillance of the Stop Camp Grayling Week of Action.

“The Department of Military and Veterans Affairs (DMVA) does not participate in civilian law enforcement investigations or surveillance of any group,” said Michigan National Guard public affairs officer David Kennedy, when asked about state police sharing intelligence with the military. “We do occasionally receive law enforcement notification of individuals or groups who are expressing intent to take action or threaten the safety of military members, training events or facilities.”

Green Scare

Treating the Stop Camp Grayling protesters as terrorists is the latest episode in a worldwide trend of governments smearing climate and environmental activists as terrorists — an ongoing Green Scare. Misapplication of the terrorism label frequently serves as pretext for invasive surveillance and sustained scrutiny.

The FBI has a long history of fixating on environmental protest movements as terrorism suspects. The focus escalated in the 1990s. Most of the movements are engaged in routine First Amendment-protected activity; a few use minor property damage as a protest tactic.

The FBI maintains federal domestic terrorism categories that include “anti-government violent extremism” and “animal rights/environmental violent extremism.” Under pressure to generate investigations, the FBI has launched probes against environmental groups based on thin evidence of criminal activity — or sometimes no evidence at all.

“Since the FBI created ideological categories, they’re incentivized to open cases in those categories,” German said.

“Since the FBI created ideological categories, they’re incentivized to open cases in those categories.”

Because the counterterrorism division does not collect incident data, he said, there is little accountability for the FBI investigations. “If you can’t see how the FBI divides up its domestic terrorism resources between ideological categories where there are a number of homicides and bombings, versus low-level vandalism and other regular protest activities, then you can’t determine whether the FBI is actually investigating true terrorism versus just targeting groups for investigation because they don’t like their political beliefs,” said German.

According to the FBI’s own definition, domestic terrorism comprises acts dangerous to human life or “intended to influence the policy of government by intimidation or coercion.” Yet few of the investigated environmental groups have threatened human life in any meaningful way; not a single homicide can be attributed to the environmental movement. (The FBI did not respond to a request for comment.)

Stop Camp Grayling — like most other movements organized around environmental activism — is not engaged in any type of systematic criminal activity. Movement adherents have never endangered human life. Much of their protest activity involved banner drops, teach-ins, and graffiti on billboards.

Yet the FBI saw fit to share an activist zine with military intelligence, drag in other alphabet agencies, and justify physical surveillance operations — all underpinned by the designation of the movement as worthy of a domestic terrorism investigation.

PFAS Polluters

In 2022, activists convened to fight the proposed expansion of Camp Grayling, a National Guard base that sprawls across three counties in Michigan. Already the largest National Guard base in the country, Camp Grayling announced plans in 2022 to more than double its size.

As host to an annual joint exercise that draws 6,300 participants, Camp Grayling argued that expansion into protected Department of Natural Resources land would facilitate on-the-ground training while expanding airspace available for fighter jet maneuvers.

When the expansion was proposed, it drew the ire of environmental and anti-militarism activists. An alliance of local residents and activists pointed to Camp Grayling’s dismal environmental record, particularly its use of PFAS “forever chemicals” in fire suppressant foam in the ’70s and ’80s.

PFAS levels in local bodies of water had already caused health warnings, leading a state regulator dealing with PFAS to oppose the Camp Grayling expansion. The expansion would have included sensitive riparian ecosystems, leaving only a razor-thin portage as protection against contamination of two rivers leading to Lake Huron and Lake Michigan.

A vigorous protest movement sprung up in Michigan. The Stop Camp Grayling protesters took their inspiration from “Stop Cop City,” the movement to block a massive police training facility to be built on public forest land at the outskirts of Atlanta.

Stop Camp Grayling came onto the Michigan State Police’s radar during a October 23, 2022, protest at the home of the Department of Natural Resources director, followed by vandalism of several historic police vehicles at the Ypsilanti Automotive Heritage Museum.

“Our troopers are frequently called upon to ensure protestors can safely exercise their rights by blocking traffic during marches and protecting protestors participating in lawful activities,” said Shanon Banner, the director of the Michigan State Police’s Communications and Outreach Division.

It wasn’t long before the state police sought help from federal authorities. After the first protest at the DNR director’s house, a senior counterterrorism analyst sought recommendations for an FBI agent to join the case. By the end of the week, an agent from the FBI Detroit field office began gathering intelligence on Stop Camp Grayling protesters.

Some of this intelligence fell squarely within the domain of First Amendment-protected activity. At one point, the FBI agent assigned to the case forwarded a zine to military intelligence headquarters at Camp Grayling. The zine criticized American militarism and detailed the ecological impacts of the proposed expansion.

The University of Michigan recruiting fair protest marked a turning point in the ways authorities — both local and federal — viewed Stop Camp Grayling protests. Within a week of the recruiting fair incident, the national FBI Counterterrorism Division became involved in the case.

Days after the fake blood incident, an Army special agent with the National Joint Terrorism Task Force wrote to an agent at FBI headquarters, according to the public records. “We noted this incident and other related activity have been documented by FBI DE in an open 266 file,” the Army investigator said, referencing a classification reserved for domestic terrorism investigations.

“I Will Be There in Person”

In April 2023, the acting director of the DNR blocked the no-strings-attached lease of 162,000 acres to Camp Grayling, attributing the decision to an inundation of public concern and opposition from tribal governments. The DNR decided instead to allow limited-use permits on 52,000 acres of public lands.

The movement had scored a victory, but for hard-line Stop Camp Grayling activists and conservation groups, the substitute DNR decision left lingering concerns over the ecological impacts of testing electronic warfare systems in the Michigan forest. The Stop Camp Grayling protesters proceeded with a week of action that included demonstrations, community building, and strategizing about next steps.

The protests, however, were on authorities’ radar well before any demonstrators set foot in the forest. Because the end of the week of action nearly coincided with the August 4 start of Operation Northern Strike, police and military officials were on high alert. Even the U.S. Army Counterintelligence Command, tasked with addressing foreign intelligence entities, was read into FBI operations on the ground.

“I’ll in turn forward their info to military intel and federal LE partners.”

The Department of Homeland Security agent working on the case decided to travel to the area. “I will be working out of Grayling this Friday through the following Friday,” Dan Lorenz, the DHS officer, wrote to an intelligence official in the state police, “so if you need anything or if I need to respond to anything I will be there in person.” (DHS did not respond to a request for comment.)

A Michigan State Police officer instructed his colleagues to collect intelligence on Stop Camp Grayling protesters they encountered. “I’ll in turn forward their info to military intel and federal LE partners,” First Lt. Scott McManus wrote.

Banner, the Michigan State Police spokesperson, said, “The Michigan Intelligence Operations Center (MIOC)” — a so-called fusion center for information sharing — “adheres to strict guidelines that prohibit the collection of information based solely on an individual’s or group’s participation in lawful activities. If criminal activities are identified, the MIOC may play a role with relevant local and/or federal partners in an effort to keep our residents safe.”

During the Stop Camp Grayling Week of Action, all eyes were on the protesters. A lawful protest, mostly involving chanting, sparked a flurry of emails. The vandalism of two billboards sent intelligence and law enforcement agencies into conniptions. “This makes the cut,” Lorenz wrote in response to a Michigan State Police write-up of the graffiti. “I will get it into reporting first chance I get.”

Eventually, the FBI decided that watching from afar was no longer sufficient. On July 26, the FBI planned to carry out in-person surveillance against Stop Camp Grayling protesters.

“Just wanted to give you guys a heads up that we will need both of you for FISUR” — physical surveillance — “on Friday,” an FBI official with the Joint Terrorism Task Force wrote to two colleagues in the Detroit field office.

Six FBI agents, including two with Portland field office designations, were sent a 13-page operation plan, along with an attached document called “Camp Attendees.docx.” The entire operation plan, beyond confirmation that six FBI agents were involved, is redacted. The Michigan State Police indicated that it withheld a significant portion of documents responsive to The Intercept and Defending Rights & Dissent’s records request, due to claimed exemptions to freedom of information laws.

The section heading in the physical surveillance plan reveal that six officers took part in the physical surveillance, with two more case agents listed. Another line lists a Michigan State Police “Contact for Traffic Stop.”

Below the list, followed by a black redaction that covers most of the page, is another section labeled: “DEADLY FORCE POLICY.”

The post They Protested a Military Base Expansion. So the FBI Investigated Them as Terrorism Suspects. appeared first on The Intercept.