Stories Chosen For You
Originally published by The 19th
Following the Supreme Court’s decision to overturn Roe v. Wade — the case that guaranteed the right to an abortion — President Joe Biden and the Department of Justice have endorsed a legal theory that could weaken states’ efforts to ban access to medication abortion. Soon after the court’s 6-3 decision was released Friday, Attorney General Merrick Garland offered the first clues of how the federal government may attempt to shore up at least some level of abortion protections.
“We stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care,” Garland said.
In particular, the president and attorney general both pointed to the power of the federal government to maintain access to mifepristone, a pill used to manage miscarriages that is also part of a two-pill regimen to terminate many first-trimester pregnancies.
“My administration will also protect a woman’s access to medications that are approved by the Food and Drug Administration — the FDA — like contraception, which is essential for preventative health care, and mifepristone, which the FDA approved 20 years ago to safely end early pregnancies and is commonly used to treat miscarriages,” Biden told reporters soon after the decision was issued.
He added that he is directing the Department of Health and Human Services (HHS), which oversees the FDA, to ensure medications such as mifepristone are available “to the fullest extent possible.” In a separate statement, HHS Secretary Xavier Becerra said his adminstration would “use every lever” to protect access to abortion, singling out medication abortion in particular. When asked about mifepristone policy at the Aspen Ideas Festival on Friday, FDA commissioner Robert Califf said he would not contradict statements issued by the president and attorney general.
In his statement, Garland pointed to a legal theory known as preemption. The idea is that because the FDA has approved the use of mifepristone, states cannot further restrict access to the drug.
“States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland said in his statement.
So far, 13 states have laws on the books that would ban abortions following the end of Roe. As of this writing, five have taken effect. A preemption argument could also weaken laws banning abortions for people beyond six weeks of pregnancy.
If a court agrees that the FDA’s approval of mifepristone preempts state bans, then it should — at least theoretically — reject state laws banning access to mifepristone for people up to 10 weeks of pregnancy. That would effectively reverse a law banning access to the majority of first-trimester abortions.
“This shows that Garland is really thinking about some of the issues we’ve been screaming about in the media,” said Greer Donley, an assistant professor of law at the University of Pittsburgh Law School. “I’m very excited to see the Biden administration through the attorney general really thinking strongly about this issue.”
Still, it’s not clear if the administration will follow through on this promise or what that would look like. HHS or the DOJ could attempt to challenge state laws that ban using mifepristone for abortions up until 10 weeks of pregnancy, or the government could simply sign on in support to cases filed by other independent organizations making the same argument.
There is little legal history showing whether the preemption argument would hold. In only one circumstance has it really been tried: in Massachusetts, when a federal court struck down a state law banning access to opioids beyond what the FDA had approved.
And the outcomes are far from certain. The federal government would have the strongest claim of preemption if it challenged state laws that specifically regulated mifepristone based on claims of safety and efficacy, said Ameet Sarpatwari, assistant director of Harvard Medical School’s Program on Regulation, Therapeutics and Law. That’s because safety and efficacy of drugs fall strictly within the FDA’s purview. If the federal government used this argument to challenge a broader law — such as a blanket ban on abortions — courts might be less willing to carve out an exception to the ban for people using medications up to 10 weeks of pregnancy.
Still, he said, it’s an argument the Biden administration should consider if it is serious about maintaining abortion rights.
“It makes little sense to me how you can have an FDA-approved drug but not have it be able to be used at all within a state. I still think it’s worth trying to pursue that preemption argument,” Sarpatwari said. “At this point, it’s sort of all available tools in the arsenal need to be used if your desire is to promote reproductive rights.”
Any lawsuit leveraging the preemption argument would need to be filed against a state that has banned access to first-trimester abortions and that falls into a federal court circuit that might be sympathetic to the preemption argument, Donley said. That’s easier said than done. Under former President Donald Trump, the federal judiciary shifted far to the right, and conservative justices are largely considered less open to cases that would maintain abortion rights protections.
There certainly are states where this type of challenge could be viable, Donley said. But any relief issued by a federal court would likely be limited, blocking just the individual state’s laws banning access to mifepristone specifically for people terminating pregnancies up to 10 weeks. If a federal court tried to issue a nationwide injunction — using a preemption case to block first-trimester abortion bans across the country — that would likely be appealed quickly to the Supreme Court.
“Ideally this is a theory you could take all the way to the Supreme Court and win, but understandably many have argued that the Supreme Court that just overturned Roe might not be sympathetic to creating this huge exception,” Donley said.
Pro sports leagues and teams jump into the political fray by condemning Supreme Court abortion ruling
Two major women’s sports leagues were among the loudest voices condemning Friday’s decision by the U.S. Supreme Court to end Roe v. Wade protection for women’s reproductive freedom.
And at least one men’s team from Major League Soccer (MLS) – Orlando City SC – attacked the decision. The Orlando team’s official statement on social media was especially noteworthy coming from the home state of Florida Governor Ron DeSantis, one of the nation’s leading opponents of women’s rights.
Although it is common for athletes to speak out on breaking hot-button issues, leagues and teams are typically more restrained because of their politically diverse audiences and public facing. Not so today for some of the top women’s sports leagues and some teams and unions.
Both the Women’s National Basketball Association (WNBA) and the National Women’s Soccer League (NWSL) issued searing statements criticizing the decision.
IN OTHER NEWS: Trump's coup was much more organized than we knew
“This decision shows a branch of government that is so out of touch with the country and any sense of human dignity” the WNBA statement began. It went on to encourage Americans to vote, reports sportsnaut.com “We must recognize that when we cast a ballot it is to elect officials and to connect the dots to policies and legislation that align with our values.”
And there was this from the official NWSL Twitter page:
“The Supreme Court’s ruling today denies individual women in this country the full liberty and equality that is the cornerstone of a just society. Reproductive rights are human rights. Until every individual has the same freedom as their neighbor, our work is not done. We will continue to make our voices heard. The NWSL is more than just a soccer league; we are a collective who will stand up every day for what is right.”
Here's what Orlando SC tweeted, in conjunction the Orlando Pride of the NWSL:
“Access to safe reproductive healthcare and having autonomy over one’s body are basic nonnegotiable human rights, and our club deeply objects to today’s Supreme Court decision. Today’s reversal of Roe v Wade is one that will not only put many at risk, disproportionately those in BIPOC and underserved communities, but is one that opens the door for future discrimination and civil rights violations of other marginalized groups.”
Joining the WNBA was its players’ union, the WNBPA:
“This decision shows a branch of government that is so out of touch with the country and any sense of human dignity. This is why we say voting rights are critically important and must be protected. We must recognize that when we cast a ballot it is to elect officials and to connect the dots to policies and legislation that align with our values. “Are we in a democracy where guns have more rights than women? This ruling provides a treacherous pathway to abortion bans that reinforce economic, social and political inequalities and could lead to higher rates of maternal mortality while eviscerating rights to reproductive freedom for everyone.”
"What's the downside for humoring him for this little bit of time? No one seriously thinks the results will change," said one senior Republican official. "He went golfing this weekend. It's not like he's plotting how to prevent Joe Biden from taking power on Jan. 20. He's tweeting about filing some lawsuits, those lawsuits will fail, then he'll tweet some more about how the election was stolen, and then he'll leave." --- November 9, 2020, Washington Post
That senior Republican official is very lucky the journalist agreed to confer anonymity. It may be the most laughably incorrect prediction in history. The January 6 committee hearings are proving in meticulously laid out detail that Donald Trump plotted to prevent Joe Biden from taking power from the moment he lost the 2020 election. (Actually, he was laying the groundwork long before the election.)
Thursday's revelations came even before the fourth hearing began when news broke that the FBI had raided the home of Jeffrey Clark, the former Department of Justice (DOJ) official, and fierce Trump loyalist, whom Trump had wanted to install as acting attorney general in the days before the Capitol riot. It's unclear what crime they suspect Clark of committing but their suspicions were apparently strong enough to get a judge to issue a search warrant and presumably get the go-ahead from the highest levels of the DOJ. It may or may not be a coincidence that this warrant was served the day before the Jan. 6 committee was scheduled to publicly devote several hours to Trump's plot to enlist the DOJ in his corrupt plot to overturn the 2020 election, a plot in which Clark was intimately involved.
Once again the witness testimony in the hearing came from Republicans who had been appointed by Trump and had previously demonstrated fealty to him.
Former Acting Attorney General Jeffrey Rosen, former Deputy Attorney General Richard Donohue and former assistant attorney general for the Office of Legal Counsel Steven Engel all testified on Thursday. Others from the administration appeared via video depositions, including members of the White House Counsel's office. They all testified to the fact that Donald Trump spent weeks pressuring, harassing and threatening them in an attempt to get them to investigate conspiracy theories and issue false statements about the 2020 election. These Republicans resisted every step of the way, making Trump more and more agitated.
"Just say the election was corrupt + leave the rest to me and the R. Congressmen," Trump exasperatedly instructed on one call, according to Donohue's handwritten notes. If that sounds familiar, it is a deafening echo of the demand Trump made to Ukrainian President Volodymyr Zelensky was that all he wanted was for him to hold a press conference announcing an investigation into Joe Biden. That's Trump's M.O.
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Jeffrey Clark was an obscure DOJ official who served for most of Trump's term served as assistant attorney general for the Environment and Natural Resources Division. He was appointed acting head of the Civil Division in September 2020. He was hardly a TV star lawyer who Trump would say was from "central casting" but he was a hardcore Trumpist who suffers from a bad case of Fox News brain rot so he happily found himself in the middle of coup plotting after having been brought to Trump's attention by a fellow Pennsylvanian Republican Rep. Scott Perry.
Rosen testified that he was bewildered when Trump brought him up in passing on one of his phone calls but he soon found out that Clark was being groomed by the president to replace him if he didn't do Trump's bidding. Clark broke protocol by scheming with the White House throughout this period rather than going through the proper channels. Another lawyer who no one had mentioned before the hearing, Ken Klukowski, was scheming with Trump attorney John Eastman and Clark from within the Justice Department, where he had evidently been placed on December 15th to work under the radar. Klukowski drafted a letter the coup plotters wanted Attorney General Bill Barr to send to Georgia and other states saying the DOJ was "investigating various irregularities in the 2020 election for President of the United States," which was misleading at best. (At this point they would perfunctorily follow up on some of Trump's wild ravings but had long since determined there was no fraud that could have changed the outcome of the election.) This letter also recommended that the Georgia General Assembly convene a special session to approve a new slate of electors. It indicated that a set of fake Trump electors had already been transmitted to the U.S. Capitol.
What this means is that the plot was not really operating on separate tracks as previously assumed. We now know that the Department of Justice plot was entwined with the John Eastman fake electors - Mike Pence plot. The coup was more organized than we knew.
Committee Vice Chair Liz Cheney said:
Had this letter been released on official Department of Justice letterhead, it would have falsely informed all Americans, including those who might be inclined to come to Washington on January 6th, that President Trump's election fraud allegations were likely very real.
At the time Klukowski and Clark drafted the letter, Rosen and Clark were listed as signatories. But they refused to sign it and they and Engel and several others were called to a meeting at the White House on January 3rd during which Trump said he planned to replace Rosen with Clark. In fact, the committee showed the White House call logs for that day which showed they were already referring to Clark as acting attorney general. The DOJ honchos all told Trump that Clark was unqualified for the job. Needless to say, Trump would not care about that --- he's the president who named Matthew Whitaker, a man much less qualified than Clark, to be acting attorney general after he fired Jeff Sessions. He has long shown that his only criteria for hiring is loyalty to him. (Since they had all been Trump loyalists themselves perhaps that was an awkward realization.)
They had all agreed prior to the meeting that if Trump carried out this "Sunday Afternoon Massacre" they would quit en masse, taking a whole bunch of top DOJ officials with them. White House Counsel Pat Cippolone was quoted telling the president it was a "murder-suicide pact." Engel said the department would be a "graveyard." Trump would hardly care about any of that, of course. What likely caused him to back off was this argument by Engel:
So much for the M.O. The optics just wouldn't work.
That was the end of the DOJ portion of the plot but it didn't stop Trump from calling up Donohue shortly after the meeting to ask him to investigate a cockamamie rumor about a truck full of shredded ballots that were in the custody of an ICE agent down in Georgia.
The Clark coup plot may have been thwarted but nothing was going to stop Trump from pushing the Big Lie, no matter what. After all, January 6 was coming up — and Trump knew it was going to be wild.