We’re sharing another episode in our WITHpod 2024: The Stakes series, in which we choose specific areas of policy and talk to an expert about Trump and Biden’s records on the topic. This week, we’re discussing the seismic changes to reproductive rights over the past few years and both candidates’ stances. Jessica Valenti is an author and the founder of abortioneveryday.com. She joins WITHpod to discuss Trump creating the conditions for Roe v. Wade to be overturned during Biden’s term and what the overturning of it has meant, the status of abortion laws across states, why she feels hormonal birth control will be taken away from teenagers and more.
Note: This is a rough transcript — please excuse any typos.
Chris Hayes: Just so you know, this episode contains discussions of sexual assault. If you or someone you know is a victim of sexual violence, there’s help available by calling the national sexual assault hotline at 1-800-656-4673. The national domestic violence hotline is at 1-800-799-7233.
Jessica Valenti: I’m not thinking even so much about what protections could Joe Biden offer. I’m thinking about how do we prevent an absolute. We’re already in a healthcare crisis, but it could get so much worse. And I don’t know that voters completely understand just how much worse it could get.
Chris Hayes: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes. We’ve got another edition today of WITHpod 2024: The Stakes. And today’s is very important and also a little different than the last few episodes. So what we’re doing this year in the run up to election is we’re doing this series on WITHpod called The Stakes, in which for the first time since the 19th century we’ve got two candidates for each major party who have both been president. Hasn’t happened in a very long time.
And what that allows you to do, it’s just compare the records. What did one do as president? What did the other do as president? We did that on immigration. We’ve done it on taxes. Today we’re going to do that although it’s going to be a bit different because the issue that we’re talking about, abortion and reproductive rights, has undergone a revolutionary change, a seismic change, and it happened temporally under Joe Biden as president. But the cause of it, of course, were the three members of the U.S. Supreme Court that Donald Trump appointed.
And so you can’t really do the same apples to apples. Well, what was abortion policy like under Trump and under Biden because they’re completely different landscapes. They completely changed. As soon as Roe was overturned, all sorts of bans on abortion that would’ve been unconstitutional and illegal became constitutional and legal by fiat by of the court.
So instead, what we’re going to do is we’re going to look at what the result of overturning Roe has been, which I think you would say that Donald Trump and he would say himself is the cause of Roe being overturned. He is the one that appointed those justices. He appointed those justices explicitly saying that if he got enough Supreme Court appointees, they would overturn Roe. He appointed them from a list vetted by the federal society, with the idea being again by his own admission to get, quote, “pro-life justices.” They then overturned Roe.
Everything downstream of that is because of Donald Trump and because of the Trump presidency. And so as a matter of policy, he owns all that. And he has recently and repeatedly endorsed that. He says the states are doing it and it’s beautiful. It’s working out great. Everyone loves it. This is his line on what’s happening.
So we’re going to talk about what abortion and reproductive rights look like post Roe in this country and then talk a little bit about where each candidate is on what they would do to change that or to maintain that status quo.
And we’ve got the most perfect guest for it. Jessica Valenti has been one of my favorite writers and feminist writers for literally decades I want to say at this point. And she is the founder of an incredible publication called Abortion, Everyday.com that honestly, even compared to large newsrooms, you know, major media outlets is probably the single best resource day in day out for reporting and aggregation of reporting on what is happening post Roe, what is happening in the abortion rights landscape. She is living and breathing this stuff every single day. And so is my great pleasure to introduce Jessica Valenti to the program.
Jessica Valenti: Thank you for having me.
Chris Hayes: Thanks for coming on. And your work really has been just an incredible resource for us on the show and for everyone. So let’s just start with like a landscape check. I think people listening to this, like, you know, we know that Roe got overturned. I think people understand that.
Jessica Valenti: Yeah.
Chris Hayes: And that’s changed landscape. Like what’s happening right now? Well, how do things look in the states in America?
Jessica Valenti: It’s such a complicated question to answer because there’s so much going on. And so I think the best way to answer it is to say there’s a lot of chaos and a lot of suffering and a whole bunch of things attached to both of those like big broad issues. On the suffering front, obviously we’re seeing a lot of people denied care, even when ostensibly they’re supposed to be able to get it, you know, via Republican exceptions, which we know aren’t real.
With the chaos, it’s a lot of fear among doctors, doctors leaving states, hospitals shutting down maternity wards, which then in turn increased maternal mortality deserts, which then in turn increase the maternal death rate.
Chris Hayes: Wow.
Jessica Valenti: And so, you know, it’s having this huge impact beyond just individual people not being able to get the care that they need. It’s a whole other conversation to talk about like the economics of it and what it means like that colleges are starting to lose female students and that medical schools are starting to lose residents. There’s just been this tremendous domino effect across all areas of American life honestly.
Chris Hayes: There are a few different kinds of bans. I think they all function fairly similarly, but Florida and Texas have very restrictive bans. There’s two of the three largest states. Florida is a six-week ban. It just went into effect. It has, again, in the language exceptions for rape, incest. Human trafficking is one of the exceptions.
Jessica Valenti: Yeah.
Chris Hayes: And not just life of the mother, but some of the threshold of maternal health. And let’s talk about how these exceptions, which clearly are a real talking point for conservatives. Trump is always, he’s like the exceptions. You got to have the exceptions. Let’s talk about how those have played out in reality in the states that have bans with exceptions actually written into the law.
Jessica Valenti: Sure. Well, to start off, a six-week ban is not all that different from a total ban, right? A lot of people are not going to know that they’re pregnant before six weeks. If you talk to abortion providers in Florida, they’re going to tell you, we don’t really see patients before six weeks. That’s not a thing, right? Like you don’t know. And so functionally, it really is a total ban.
Chris Hayes: Just to be clear on the math here. I know all of the women listening know this, but just when you miss your first period, you’re four weeks pregnant. So like the day that you miss it, you’re four weeks pregnant.
Jessica Valenti: Yeah.
Chris Hayes: If you are a week late and then for two weeks, you’re like, oh, I haven’t gotten my period. I should take a pregnancy test. At that point you’re six weeks.
Jessica Valenti: Right. Exactly. And then maybe, maybe you can get an appointment, but probably not. Probably you have to wait another week or two at which point you’re eight weeks. So, again, it’s a functional ban. And then the exceptions, and I always like to say, like, these exceptions were written deliberately crafted specifically to exclude people, not to include people, right?
When Republicans went and sat in a room for rape exception, what do we all know about rape victims? They don’t report to police. What’s the first mandate they put? Well, you have to report to police. In Florida’s case, it’s that you have to bring some sort of evidence that you’ve been attacked. That can be like a police report or a court order. And that’s an impossible hurdle for most victims. That’s just not going to happen.
Chris Hayes: Right. That evidence has to be like official legal evidence. Not like —
Jessica Valenti: Exactly.
Chris Hayes: — I have a video or something. It’s like, you have to say that —
Jessica Valenti: Exactly.
Chris Hayes: — there’s some legal entity that has some paperwork that says that you have been sexually assaulted.
Jessica Valenti: Right. And that rape exception is only available up until 15 weeks. For a lot of victims, you’re in denial about an attack. You’re not coming to terms with it. I hate to say this, but if you’re a child, if you’re young, you don’t know about changes in your body, you’re not going to necessarily know.
Chris Hayes: Right.
Jessica Valenti: And so again, crafted specifically in order to make it impossible to use. They also have an exception supposedly for fatal fetal anomalies. But what doctors have pointed out is that the language and the law makes it so legally tenuous that it’s unclear what fatal means. Is it a fatal, fetal anomaly if, you know, a newborn would die within two weeks, two days. Does it have to be immediate?
Listen, pregnancy is too complicated to legislate. Again and again and again, that’s what this shows. But yet the exceptions are just pure nonsense and, you know, a PR tactic.
Chris Hayes: Yeah. On the fatal fetal anomaly, I feel like some of the most horrific stories we’ve heard have been precisely diagnosed conditions that will lead to the eventual baby dying within hours. In one case in Florida, really horrific story where the mother was forced to give birth and then sit there with the child as the child spent a few hours. And the question of like is that fatal is an unresolved legal question. And all of these entities that would be performing the procedure are taking onboard tremendous amount of legal risk.
Jessica Valenti: Right. You know, if you’re risking 10, 20 years in prison, you know, how sure are you that you could say in a court of law that this is fatal. And again, this is all really deliberate when it comes to non-viable pregnancies specifically. This is something I’ve been tracking across states. There is this very concerted effort to force and pressure people to carry doomed pregnancies to term. They know that it’s extraordinarily unpopular and so they don’t talk about it a lot, but the language really is written in this way.
I mean, in Texas’ case, there is no exception for fatal fetal abnormalities. That’s why we saw, you know, that Kate Cox had to leave. They really, really want people to carry those non-viable pregnancies to term.
Chris Hayes: As a matter of policy, you’re saying.
Jessica Valenti: Yes. As a matter of policy.
Chris Hayes: Yeah. I mean, your take on this is that the exceptions are written as kind of rhetorical political covering themselves.
Jessica Valenti: Yeah. You know, it does a couple of things. It makes it seem as if they’re somehow moderate on the issue or they’re willing to compromise. And the other thing that I’ve noticed that they do is, you know, they’ll go for the total ban and then they’ll say, well, you know what, because we’re such good guys, we’re going to give you that rape and incest exception that no one can use. And we’re going to write in language about fatal fetal anomalies so that they can sort of like fan this softening on the issue that makes their voters feel like, well, hey, he’s a reasonable guy. You know, he wants the total ban, but he’s going to change the law to this, when, in fact, it really does not meaningfully change who is going to be able to get care.
Chris Hayes: And part of the reason for this, which I think is worth kind of pressing on, because I think, you know, one of the themes of this series is that there are lots of places where these two candidates just have different views and different policies. And like it’s not really in dispute. And if you are a person listening to us who thinks like abortion in all cases is murder, and I want it to be illegal and regulated out of existence. Like Donald Trump is your guy. The Republican Party is your party on that issue. There’s no question.
And to go back to that, the people that are writing these bans have a genuine ideological belief that it should be criminalized and banned.
Jessica Valenti: Oh, yeah.
Chris Hayes: And so they’re not going to write exceptions that are going to be flexible or their fear when they’re writing the exceptions that too many people will use the exceptions because the whole point is the ban.
Jessica Valenti: Right. Exactly. That’s the whole point. They are crafted specifically to never be used. That is what they’re there for. They’re there for that. And they are there so that Republicans don’t have to be so scared of their voters when they’re proposing these. You know, in Tennessee, something I tracked, which was bananas, when Tennessee first passed their ban, there was no exception for women’s lives. Not women’s health, women’s lives. There was no exception.
Chris Hayes: Wow.
Jessica Valenti: Yes. It was something called an affirmative defense mandate where doctors would have to break the law in order to save a woman’s life.
Chris Hayes: And then at trial they could say when they’re like before the jury being charged for murder.
Jessica Valenti: Yeah. And Republicans were like, oh, I don’t think this is going, you know, go over so well with our voters. We would like to change that and Tennessee right to life, which holds a tremendous amount of power, was like, no, we don’t want you to do that. And they fought with them for months going back and forth. Like they refused. They said, if you pass this language, we’re going to say that you’re not pro-life, you know, they really threaten them for months and months. Finally, they passed some sort of, you know, nominal language, again, that’s not really helpful to doctors at all.
Chris Hayes: Yeah. And on this point of where the pressure comes from because it leads directly to how the policy plays out how the exemptions or exceptions are written and how they’re interpreted and how they actually act in the world. In Arizona, we just saw a similar thing in which the Supreme Court said that they had to revert to the 1864 law that criminalized abortion. That was wildly politically unpopular. And I was just talking to Michelle Goldberg on my program, who was just there, that they managed to repeal it after a few tries because only a few Republicans joined with every Democrat. But all the protestors she said at the Capitol were anti-abortion protestors who were protesting them abandoning and repealing the 1864 law.
Jessica Valenti: Oh yeah. They were really, really pissed off. They were really pissed off with those Republicans who voted with Democrats. They loved that law. I mean, I wish it wasn’t true, but the sort of growing trend in the anti-abortion movement really is towards a much more radical point of view where they want women arrested. They have this thing called equal protection. Whenever you see the term equal protection in a new piece of legislation, that means we want this charged as a homicide, like the person who gets an abortion is charged as a murderer.
That is where we are heading now. It’s a small group of extremists when you’re talking about like the overall makeup of the country, but the people who are really interested in this and really passing this policy, we know what they want, and it’s not pretty.
Chris Hayes: Let’s talk a little bit here about sort of the way federalism has been acting. So we’ve seen, I think according to “New York Times” latest numbers I have here, are 21 states that have abortion bans of some form. And that’s the latest number. Now it’s not all of the states of what you might call the old Confederacy, but most of them, a huge swath of states in the south now from Texas all the way to Florida. There are other states of course, that have moved in the opposite direction who have moved to secure abortion rights. Talk a little bit about how that’s played out.
Jessica Valenti: Sure. You know, the way that folks are doing that largely is by ballot measures, citizen led initiatives. We saw it happen in Ohio and it really was heartening for so many reasons, but I think it really pushed back on this idea that the country is split on abortion rights. I think, you know, conservative Republicans would like us to believe that this is something that voters are sort of super polarized on that were evenly split down the middle. And that’s just not true. Voters want abortion to be legal even in red states, even in purple states.
And so in Ohio’s case, voters came out overwhelmingly for abortion rights, even in the face of Republicans doing all sorts of really sketchy stuff to stop them from having a say at all, right? Like they held a multimillion dollar special election to raise the standards from 50% to 60%. The secretary of state crafted a ballot summary that voters saw instead of the actual amendment that was longer than the actual amendment. And it came out later that he actually wrote it with anti-abortion groups like the same groups that were campaigning against the measure.
And so there was all sorts of really sketchy stuff happening. But voters still really candidly voted for abortion rights and brought it home. And so that’s what we’re seeing and that’s why we’re seeing similar sort of attacks on democracy in whatever state is considering a pro-choice ballot measure.
Chris Hayes: Which are this fall, there’s going to be one on the ballot in Florida and also in Arizona, if I’m not mistaken.
Jessica Valenti: In Arizona, Nevada, Nebraska. There’s quite a few. And they’re, again, pulling out a lot of interesting tricks in Arizona. There was this leaked strategy document where Republicans said, well, we know that pro-choice ballot measures are really popular, so let’s propose one of our own and we’re going to call it the Arizona Abortion Access Act, and yeah —
Chris Hayes: Wow.
Jessica Valenti: Yeah, and we’re going to siphon votes away from the actual pro-choice measure. But what we’ll do, we’ll say that it will be up to 15 weeks, but what we’ll do at the same time is we will constitutionalize and enshrine all of these restrictions so that you can’t get an abortion before 15 weeks.
Chris Hayes: Wow.
Jessica Valenti: So they have this very complicated plan to trick voters into thinking that they’re supporting a pro-choice amendment. And they’re doing the same thing in Nebraska where like Nebraska came up with a name for their thing that is almost identical to the pro-choice measure. And they said, yeah, we’re going to enshrine abortion rights up to 12 weeks. Nebraska has a 12-week ban. So what they’re talking about is enshrining the 12-week ban —
Chris Hayes: Ratifying. Yeah.
Jessica Valenti: — in the state constitution.
Chris Hayes: Wow.
Jessica Valenti: Yeah. It’s wild.
Chris Hayes: And again, to come back again, just to hit home this point, the reason this landscape exists in which each state can do all this different stuff is because of the Dobb’s decision decided by the Trump-appointed members of the court who overturned Roe, which had a national standard, that was a constitutional right. That has been taken away. And so states can do whatever they want. And because of that, we’ve got this crazy patchwork situation.
And again, it’s really important to remember that the people who are fighting to criminalize and to regulate and to stop abortion truly believe in the cause that they’re pursuing, which means they will do it. Like they’re going to keep trying to do it as much as they can because they believe in it. So you’ve got this patchwork, right? You can get an abortion in Virginia, but you can’t in South Carolina. Okay, well what happens? Well, naturally people are going to be traveling. There’s been some states that have started to discuss what to do about travel, right?
Jessica Valenti: Yeah.
Chris Hayes: And started to look at regulating that travel.
Jessica Valenti: Yeah. It’s really distressing. They are calling them anti-trafficking laws. They are travel bans. That’s what they are because what they’re doing is focusing first on minors, on teenagers and saying, you know, Idaho passed a law. The governor in Tennessee is just about to sign a very similar, almost identical law that says the way they will describe it is it’s illegal to take a minor out of the state for an abortion without parental permission, which sounds sort of innocuous.
What it actually says is that you cannot help a teenager get an abortion in any way. If you give them gas money to leave the state, if you text them the URL to a clinic, that is abortion trafficking. That is a felony. You will go to prison. And so it is a way to make it impossible for people to leave the state for care and to target abortion funds specifically who are the places that are getting people money, helping them leave the state.
Chris Hayes: Oh. So it opens up a huge legal liability for abortion funds in states that have criminalized abortion or banned it because there are abortion funds that risen up to be like, we’ll help you. And so —
Jessica Valenti: Right.
Chris Hayes: — if they can catch any of that money going to a 17-year-old, then they can go after the abortion fund.
Jessica Valenti: Right. And it doesn’t end with teenagers. We’ve already seen, I think at last count it was five counties in Texas pass a local ordinance that’s very similar, but it applies to women of all ages. So if you lend an adult money to leave the state, then it’s not a criminal offense because it’s a local ordinance, but someone can sue you and ruin your life if you lend someone money to leave the state for an abortion.
Chris Hayes: County level ordinances in Texas.
Jessica Valenti: Yes. Insane. And —
Chris Hayes: I mean, I hope someone challenges (ph). My first reading of that is that there’s no way that’s constitutional, but —
Jessica Valenti: No —
Chris Hayes: — who knows.
Jessica Valenti: — of course not. Well, this is part of the issue. So Alabama’s attorney general, Steve Marshall, wrote in this legal brief a few months ago. He said, we’re not telling women, pregnant women, that they can’t leave the state, but we could if we wanted to. And the way that we could if we wanted to is we are allowed to restrict the movement of sex offenders because we want to protect children, right? We want to protect victims from them. In the same way, if we wanted to, we could restrict the movement of pregnant women who want to abort their fetuses.
Chris Hayes: Wow.
Jessica Valenti: And it is just wild to me that no one is talking about this because —
Chris Hayes: He said this as a sort of —
Jessica Valenti: Yeah.
Chris Hayes: — like floating this kind of trial balloon that it would be constitutional for us to pass us as a matter of legal analysis.
Jessica Valenti: Yes. Yes. He’s like we restrict people’s travel. We already do that. We already do that to protect vulnerable populations. And the state has an interest in protecting fetuses. And so we could absolutely do that. Even if that doesn’t happen on a practical level, if you’re talking about people in some of these states, if they’re too afraid to get help, if their families and friends are too afraid to lend them money, if they think it’s illegal, even if it’s not, right, it’s very much about this chilling effect.
I spoke to a 21-year-old in Texas, had a fatal fetal abnormality. She didn’t tell a single person in her family because she knew that Texas has this bounty hunter law where she’s like, well, they could get $10,000 for turning me in and it’s too worrying. And she just happened to be able to empty her savings account and leave. But how many people really, especially when you’re talking about marginalized communities, how many people can afford to just leave the state without one single ounce of support, emotional, financial —
Chris Hayes: Right. Yeah.
Jessica Valenti: — you know. It’s really impossible.
Chris Hayes: And also to go back to your point about minors, I mean, some of the cases where a teenager is most desperate in need of an abortion are the most gothically terrible situations in which they have been raped by a parental figure. They’re in an incredibly abusive environment in which they can’t trust the people that are entrusted with caring for them. Like this, I mean —
Jessica Valenti: Yeah.
Chris Hayes: — it’s so horrific and unpleasant to think about that I think in some ways, the kind of mind rebels a little bit at considering all these hypos. But they’re not hypos. Like they happen —
Jessica Valenti: No.
Chris Hayes: — in the country all the time. There are girls being impregnated by fathers or stepfathers or boyfriends of mothers all across the country all the time. This is not like some abstract idea.
Jessica Valenti: And that’s a really important point because we will get so much conservative pushback when you talk about children being raped, when you talk about these really extreme cases. Again and again they’ll say that’s not common, that never happens. When the story of a 10-year-old from Ohio who had to travel to Indiana for an abortion came out, Republicans said, no, that’s not true. That’s a lie. No way.
Chris Hayes: Yeah. They came out very strong. I mean, a whole bunch of prominent elected officials came out and said, it’s not true. We don’t believe it’s true.
Jessica Valenti: Right.
Chris Hayes: And then it turned out it was 100% true.
Jessica Valenti: Right. You know, all of these states have been keeping abortion data for a very long time. And if you go back, you can look at like, you know, in a state like Tennessee, there were dozens of kids who had abortions before Roe was overturned. It’s a sad and unfortunate and we don’t like to think about it, but it is a pretty common scenario. And in what universe is it reasonable to think that a 10, 11-year-old, 12-year-old is okay to have a baby? Just even like physically?
Chris Hayes: Yeah.
Jessica Valenti: You know, just like to the physical danger of small bodies, I find it so completely bizarre that this is even a question.
Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: So there’s attempts at regulating travel. There’s different regimes of different levels of restrictiveness though. I think, I mean, we’ll get more data. So at a certain point, there will be data on what the different regimes do to abortion in those states. Then there are some things. So this is all the sort of federalized version of Donald Trump and the Supreme Court’s post Roe-Dobbs America.
Jessica Valenti: Yeah.
Chris Hayes: Then when we’re talking about Donald Trump from Joe Biden, there’s a bunch of federal issues at play here. And before we move on to this, we should say, Donald Trump will not sign a bill that restores Roe. Absolutely not. There’s no way. He has not really quite said this. He said he’s not interested really in a national ban. I think if a Republican Senate and Republican House passed a national abortion ban, he would sign it. I think I would call informed speculation, but this federalized system would remain or get worse under Donald Trump.
It would either be what we have now, or there be some sort of national ban. Joe Biden has said that he will sign a piece of legislation that would restore Roe, basically. There are reasons that people don’t like that legislation on the sort of pro-choice side, but that is what he is enunciated. And let me ask you this as someone who I think has been critical of Joe Biden and particularly Joe Biden sort rhetoric, and a history around abortion, he’s never been —
Jessica Valenti: Yeah.
Chris Hayes: — a particularly stalwart defender of the right to choose. Do you believe that? Do you believe that were there a Senate and if he had the votes that Democrats passed, he would sign?
Jessica Valenti: Well, yeah. Yeah. No, of course.
Chris Hayes: Yeah. You don’t think that’s not a bait and switch.
Jessica Valenti: No, no. Not at all. Do I think that he likes abortion? No.
Chris Hayes: No. I mean, he will tell you himself no, he’s not, in fact.
Jessica Valenti: Extraordinarily uncomfortable.
Chris Hayes: Yes. He, in fact, often says it.
Jessica Valenti: Yeah.
Chris Hayes: There’s no fight there.
Jessica Valenti: Yes.
Chris Hayes: But yes, I’m in the same place as you, but you cover this full time. But in terms of like, yes, he will sign it if it’s passed and I think that there’s a pretty clear difference in the parties, in their coalition. So that’s the federal question of Roe and whether we will have something that looks like the status quo before Dobbs or the current status quo, right.
Jessica Valenti: Right.
Chris Hayes: And these two candidates.
Jessica Valenti: Right.
Chris Hayes: But then there’s a bunch of other stuff implicated as well at the federal level. So I want to talk about two of them and you can bring up more because you’re better versed in this. The first is the Emergency Medical Treatment and Active Labor Act. There was recently Supreme Court case because Idaho is saying they do not have to bow to federal law that you have to treat everyone in your emergency rooms if you get federal healthcare funding.
And they don’t have to give women who need medically necessary abortions. Abortions in violation of federal law, we think we don’t have to do this. They argue that before the Supreme Court. One of the things that’s notable is that the people on the other side was the Biden administration’s solicitor general, right? So in this case —
Jessica Valenti: Yeah.
Chris Hayes: — you’ve got the federal government of the Joe Biden administration saying, no, that’s not true. And I don’t think that would be the case under a Trump administration, right?
Jessica Valenti: No. Yeah. I mean, what was so remarkable to me about those arguments was just how normalized it’s become. You literally have leaders of a state saying we don’t want to give lifesaving care in hospital emergency rooms, where they were literally arguing about how many organs would it be okay for women to lose before you legally have to give them care. Like the whole scenario, the fact that we are even there just to like take a step back for a minute —
Chris Hayes: Yeah. Yep.
Jessica Valenti: — is so bananas. It is just beyond, but it really does go to show. And I say this all the time, they don’t care if we die. They don’t. They have like pulled for this. They have planned for this. They know that women are dying. They know that the maternal death rates are going to go up. And that is something that they have accepted. And in a case like this, they are saying it explicitly.
Now when Idaho went to the Supreme Court, what their argument is, is that their abortion ban allows for lifesaving care. But that the Biden administration just wants to make hospital emergency rooms into abortion clinics.
Chris Hayes: Again, you see this just to reiterate the point you made at the start. You see this sort of stalking paranoia by people with power that are anti-abortion in these states about people using the exceptions basically like —
Jessica Valenti: Right.
Chris Hayes: — it’s a perfect example of the fact that like, yes, we have it in our law, but we don’t really want anyone to use it.
Jessica Valenti: Right. And that’s the reason that Josh Turner, the attorney for Idaho kept talking about mental health exceptions as if women were going to go into hospital emergency rooms and say I’m suicidal so that they could just get an abortion, right?
Chris Hayes: Right.
Jessica Valenti: And it really comes back to this idea that women are liars. Like there really is —
Chris Hayes: Yeah.
Jessica Valenti: — this like core idea for them that like we’re liars who are like sitting around just can’t wait to get that abortion as late as possible. Like we’re waiting till the eighth month we’re going to go and we’re going to, you know, make up some excuse so that we can get it. It’s a really stark and depressing view of women that they have. But yes, that is their whole thing. That’s the assumption. And what is so interesting to watch as they’re making this argument that our ban allows for care, it’s fine. You have 25% of the OB-GYNs in Idaho gone, right?
Half of the maternal fetal medicine specialists gone. Residents will not come to practice there. Three maternity wards have shut. It is really bad. And so doctors are saying, no, we can’t give care. Like this is not happening and they just sort of refuse to believe the doctors. The attorney general of Idaho after hospital said, hey, we’ve had to airlift about six or seven patients out of here in order to get care. The Idaho AG said, no, that didn’t happen. They didn’t say that while they were under oath so I don’t believe that.
Chris Hayes: This question of emergency care is one place where, you know, federal and state laws can be in conflict. And again, all things being equal, I think of Biden administration is going to be much more on the side of reproductive freedom than a Trump administration. Another place we’re seeing this play out as another Supreme Court case, which is about mifepristone, which is medication abortion. It’s used in a huge number.
Jessica Valenti: Sixty-three percent. Yeah.
Chris Hayes: Sixty-three percent of abortions. Also it can be sent through the mail. And that is crucial for folks that are in states that don’t have access to abortion. There’s talk in that oral arguments. And again, you’ve got all sorts of Republican legislators signing on amicus briefs. It’s all Republicans who are going after mifepristone. It’s basically Democrats defending it.
There’s a lot of talk in that case about the Comstock Act, which seems to me this really important thing for people to focus on because when you talk about what will the federal implications be of the two different candidates running for president.
Jessica Valenti: Yeah.
Chris Hayes: The Comstock act might be one of the biggest sleeper issues in this campaign. If you want to talk a little bit about what it is, why it’s implicated in the mifepristone arguments and what a Department of Justice under Donald Trump could conceivably do with it.
Jessica Valenti: Sure. So the Comstock Act is this like 19th century zombie obscenity law that says you can’t mail, ship obscene materials, which they include birth control, abortion medication and supplies that could be used in an abortion. They include those as obscene materials. And so if you have a Trump administration where they can enforce the Comstock Act under those ideas, all of a sudden you don’t have abortion medication being shipped anywhere. You don’t have clinics in pro-choice states being able to get the supplies and tools that they need.
And you even could see birth control, not being able to be mailed and shipped into states. And this is something that the anti-abortion movement has been planning and talking about and actually been very explicit about for a long time. They’re not hiding the fact that they want to use Comstock to essentially enact like an informal backdoor national ban.
Like they don’t need the votes for a formal national ban. All they have to do is use Comstock because if you have 63% of abortions being used with abortion medication, like already, you’re getting rid of 63% of abortions. All of those people who are now going to go look for procedural abortions are going to be met with, you know, weeks, months waiting lists. It would be a mess.
Chris Hayes: Yeah. Just to reiterate this, this act, you know, there’s several acts, but this suite of acts has been on the book since, you know, 1870s. A guy named Anthony Comstock, who was this strange character who himself was like a chronic masturbator and full of self-loathing over that fact and like hated vice and hated sex, prurients, women, arguably as well, and went on this crusade against vice. And that was everything from pornography to dirty books that were being shipped.
Jessica Valenti: Yeah.
Chris Hayes: — to the basics of women’s healthcare.
Jessica Valenti: Yeah.
Chris Hayes: That is on the books, the law. I mean, this is the key thing for everyone to understand.
Jessica Valenti: Yeah.
Chris Hayes: It’s just not enforced because it’s ludicrous and bad law. And also the line of cases of Roe meant that it was all unconstitutional. Like in the Roe regime, you didn’t have to repeal the Comstock Act because all that stuff was not constitutional anyway. So it just sat there dead and frozen. What they talked about in the Supreme Court arguments and what was argued explicitly by the plaintiffs in that case who are trying to take mifepristone off the shelves and what the justices seemed interested in and what reporting evidence suggests is something being actively pursued by people planning for a Trump second term is you don’t have to pass a national ban because you might not have the votes for that.
You just have a Department of Justice that writes a memo on day one, the attorney general says we’re back to enforcing the Comstock Act. Every shipment of anything having to do with birth control or abortion is now subject to seizure and criminal penalty anywhere in the country, even if it’s coming from the lab to the doctor and you’ve got basically a national ban on day one, no legislation.
Jessica Valenti: Yeah, it’s done. It’s done. And then of course, you know, they would also replace the head of the FDA and repeal approval for abortion medication regardless, right.
Chris Hayes: Right. Of course, that’s another place.
Jessica Valenti: And so you have abortion medication gone anyway. And so yeah, they have a, again, very, very specific plan. They know that that is how they could ban abortion for all of us.
Chris Hayes: Does that seem plausible to you? I mean, I’m asking you to do a thing that the whole idea behind the series, right, is that we have these records in front of us and we can compare them. We don’t have to speculate. In this area things have been so thrown into uncertainty by the Dobbs ruling that we do have to sort of inform speculation about the future. Does it seem plausible to you that they start doing that kind of thing if Trump wins?
Jessica Valenti: Hundred percent, 100%, like there’s no doubt in my mind, partially because Trump is going to give the anti-abortion movement whatever they want. Like, I truly believe that, but I also think that because so many people don’t know about Comstock, I think Trump thinks that he can avoid a lot of the sort of like political and national backlash that we’ve been seeing —
Chris Hayes: Yes.
Jessica Valenti: — when it comes to, you know, like Arizona’s ban. And because they’re talking about abortion medication and shipping, in my mind, how I imagine this going, when if it’s like Trump defending Comstock, is him talking about I’m stopping drug trafficking.
Chris Hayes: Right.
Jessica Valenti: This is an anti-drug trafficking. Like he loves talking about that stuff. And so to me, it’s him sort of defending this as a move to protect women, protect people from drugs. The anti-abortion movement has been really insistent that abortion medication is used by abusers, like slipped in women’s drinks. And so they’re sort of setting up this cultural defense so that people won’t be quite so upset when Comstock hits. So yes, I think that’s inevitable if he’s elected.
Chris Hayes: You make a really good point that I just want to sort of stay on for a second, which is Donald Trump knows that a national abortion ban and abortion bans in general are unpopular. Like he knows that he keeps saying it out loud. It’s not that I’m not misrepresenting his view (ph). He knows that. He’s savvy enough to know that, anyone who looks at a poll. And I think this notion is so backed up by all the evidence we have that it basically, everyone in politics now understands that.
Jessica Valenti: Yeah.
Chris Hayes: And he doesn’t want to risk his election, you know, and he’s sort of pussy footed around what he’s going to do about a national ban. You’re really right that the idea of not having to pass anything and using this sort of long dormant law through the administrative state to start enforcing is like, have a cake and eat it too, where I’m not passing a national abortion ban, we’re just enforcing this law is a very appealing way around the problem, which is the problem that everyone faces. Even in fairly conservative and red states, which is you’re doing the thing you pledge to do and you believe in and people don’t like it.
Jessica Valenti: Right. And Trump has already done something. And it it’s so funny because I think I was on your show when I predicted this. I said, I was like, he is going to start taking credit for pro-choice wins. He’s going to say, I overturned Roe, gave it back to the states. And so now states get to do what they want.
Chris Hayes: Right.
Jessica Valenti: And that’s exactly what he did.
Chris Hayes: He’s like some states are going one direction and —
Jessica Valenti: Yeah.
Chris Hayes: — and some of the other, it’s a beautiful thing.
Jessica Valenti: And it’s a beautiful thing and it’s all because of me. It’s all because I gave states the choice. And so he loves stuff like that and that’s just how I see it happening. Like, he’s very happy to take credit for all of it and to play both sides and to have his cake and eat it too, while at the same time giving the anti-abortion movement everything that they want in the administration that isn’t so well known and is not going to, you know, get the same sort of backlash and attention that bans are.
Chris Hayes: And one of the other places where this will matter more broadly and you see it in the mifepristone, you see it EMTALA, is the posture of the Justice Department on civil litigation and whether the federal government will bring its weight on behalf of people trying to secure abortion rights or trying to ban abortion. And I think that valence would just flip basically from one day to the next. I mean, I think that you would have, you know, in the EMTALA case, I think a Trump Justice Department would be arguing on the behalf of Idaho. I think they would just —
Jessica Valenti: Oh, of course.
Chris Hayes: And I think that matters. So I think that’s another place where all the stuff would flip and would be particularly important, I think, in the sort of question, which is, again, another place this might all go in the wake of Dobbs is fetal personhood, which is this concept that a fertilized egg is from the moment of conception, fertilization a person under the 14th amendment with all of the rights that that entails a full person. And what that would do is if a court were to find that like the Supreme Court, it would make abortion unconstitutional as a default everywhere.
Jessica Valenti: And would make it very easy to arrest women, right? Punish women not just for abortions, but for miscarriages, if you didn’t take your prenatal vitamins, if you lifted something heavy.
Chris Hayes: Right. Yeah.
Jessica Valenti: It would get very bad, very quickly because we’ve already seen that sort of criminalization happening using fetal personhood arguments in states like Alabama, where they are, you know, literally preemptively jailing pregnant women who they believe are using drugs in protection of their fetus. And so it goes downhill very fast. I mean, you know, we saw in Ohio, Brittany Watts, the woman who was prosecuted for having a miscarriage in her own home. They are so intent on using fetal personhood, not just to secure that right, but to punish. And I think that that’s really important to remember. Like that’s a big end goal for them.
Chris Hayes: Right. And this, again, entails, you know, this is one of the things we’ve seen at the state level, right, that all of a sudden, again, this is all due to Dobbs and, and all the chaos that it’s thrown up, which is that every district attorney now in say a state that has a ban becomes now a reproductive rights election. And you’re already seeing like Maricopa County, you had, I believe, the district attorney or the prosecutor for Maricopa County saying, I’m not going to bring prosecutions under the 1864 law.
But again, if you had a national ban or even not a national ban and Comstock, like the degree to which law enforcement is being brought to bear as a tool of banning, criminalizing, going after women or healthcare providers is going to depend a lot on who’s in office and who’s running, you know, the FBI and the Department of Justice.
Jessica Valenti: Yeah, 100%. And I have to say, Chris, while we’re talking about district attorneys, it’s really important to remember, like on the state level too, Republicans were passing legislation that says we can oust district attorneys who refuse to prosecute abortion cases.
Chris Hayes: Right.
Jessica Valenti: We can get rid of elected officials if we don’t like what they decide to do. Even though they’ve been elected to use their discretion on what cases to pursue or not, we’re going to get rid of them. So they’re like way ahead of the game. They knew that was going to be an issue and they’re planning for it.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: There’s two other areas of concern that we’ve seen illustrated. One is birth control where, you know, there’s always been rumblings on the right that birth control is immoral. You know, there’s been rumblings that I think Marsha Blackburn, the Senator from Tennessee, the other day said in a video that Griswold, which is the case that found a right to privacy to protect people’s use of birth control, was a constitutional right. And she said that was wrongly decided.
There’s worry about birth control generally. My understanding is that we haven’t seen any legislative moves in that direction yet, but you are the person who really follows this, so.
Jessica Valenti: Yeah, it depends what you mean, right? Like we haven’t seen any laws that are like birth control is going to be legal. I want to ban birth control. What they’re doing is the same thing they did with abortion, which is taking a slow chipping away approach and targeting communities that they think people won’t care about that much first, right? So we don’t want certain kinds of birth control covered by the state because we think that IUDs and emergency contraception are abortion. And that was held in a hobby lobby, right? That like employers don’t have to cover —
Chris Hayes: Right.
Jessica Valenti: — certain kinds of contraception that they believe are abortions. And so they’re doing sort of this two-pronged approach where they’re doing this chipping away at access, and then they’re redefining certain kinds of birth control, like IUDs, like emergency contraception as abortions. And so they don’t have to pass something that says we’re banning birth control. They can say we’re banning abortion and IUDs are abortion, right. And so they’re doing this very clever thing where slowly they’re putting that sort of language into law slowly, enshrining it here and there in little bits of legislation so that it becomes more and more normalized.
And then the other thing that we’re seeing, what I think is going to happen next in the same way that we’re seeing travel bans sort of targeted at teens, we’re going to see hormonal birth control taken away from teenagers, right. In the same way that they’re banning gender affirming care for teens.
Chris Hayes: That has not happened yet.
Jessica Valenti: No, but that’s, what’s going to happen next.
Chris Hayes: Really? You really think they’re going to move to ban the birth control pill for teenagers.
Jessica Valenti: They’re banning hormones for gender affirming care because hormones are dangerous. That’s their argument, right? If hormones are dangerous to —
Chris Hayes: Wow.
Jessica Valenti: — young bodies, why is the birth control pill okay? It’s very much connected. I think that they know exactly what they’re doing and they have been launching this like very insidious cultural campaign on social media.
Chris Hayes: Who’s they? Who’s they? Like Alliance Defending Freedom or —
Jessica Valenti: Yeah. Alliance Defending Freedom, Susan B. Anthony Pro-Life America. There’s like, you know, this whole conglomerate of anti-abortion organizations where they’re literally putting out, you know, social media videos about don’t you want to, you know, use a natural method and using feminist rhetoric talking about how the medical industry, you know, doesn’t care about women’s health.
Chris Hayes: Right. In opposition to hormonal birth control.
Jessica Valenti: Yeah. So that when they do make those moves, we’re doing it for your protection. We’ve been talking for years about how dangerous it is for you. And so, yeah, I think it’ll be for teenagers first, for poor people. And then the other thing you have to understand is when you have certain states where all the OB-GYNs and reproductive health clinics have been run out of town, right? And then the only place you have to go, let’s say for care is a crisis pregnancy center. These are centers, which are being given so much money that it’s not just that they can’t prescribe birth control because they’re not medical clinics. They actively advise against it.
So you have communities now where the only place you can go to get care, if you’re young, if you’re poor, is a place that’s going to tell you that birth control gives you cancer.
Chris Hayes: Right.
Jessica Valenti: So they’re doing this very like slick chipping away, you know, underground thing because they know that they can’t say it explicitly. Saying it explicitly would be way too unpopular.
Chris Hayes: Well, speaking of that, we also saw that with in vitro fertilization, which was a fascinating moment, right. Where —
Jessica Valenti: Right.
Chris Hayes: — I just thought that was such an interesting, I mean, it was horrifying, first of all. But just analytically, you’ve got this very conservative Alabama Supreme Court and they say, look, our state protects the unborn in the Constitution. That has to mean fertilized eggs. There are fertilized eggs that are going to be destroyed in this case. It was a civil suit.
Jessica Valenti: Yeah.
Chris Hayes: Someone was suing because actually they’ve been mismanaged, right?
Jessica Valenti: Yeah. They dropped a tray.
Chris Hayes: They dropped a tray. So, I think a wrongful death suit —
Jessica Valenti: Wrongful death, yeah.
Chris Hayes: — around the dropping of the tray.
Jessica Valenti: Yeah.
Chris Hayes: And here you’ve got this very straightforward literalist holding that just says, look, the text of our constitution says those are unborn babies. This is a wrongful death suit. Two plus two equals four. The result of that is all of a sudden, every IVF clinic became civilly liable, perhaps criminally liable, depending on what cases would come up next. Enormous national outrage. And I wonder what you think about the status of IVF and what that in terms of the election this year, whether that status would change depending on who we’re elected or whether they touch the hot stove so much there that they would not try to go back at it.
Jessica Valenti: Yeah. No, I think that they will absolutely go after IVF, but they’re just going to do it in a way that’s not so explicit, right. They’re going to say, hey, we just want to make sure that we are treating these embryos with care and that we are reporting every single one and where it is and that, you know, they’re going to say, we want to make sure nothing is mismanaged, but really what that’s going to mean is you can’t dispose of unused embryos. That’s what’s going to happen.
But they’re not going to say explicitly we’re against IVF because what happened was they pissed off all of the, you know, the Utah mom bloggers, who basically —
Chris Hayes: Right.
Jessica Valenti: — influenced all of social media and people lost their minds. And IVF, you know, at the heart of it, IVF is about women often with privilege who want to be pregnant, who are fulfilling that traditional gender role that they love so much, right. They are seeking out motherhood rather than rejecting motherhood. And so there’s always going to be more protections for women like that. It doesn’t mean that they’re safe. There’s just going to be a little bit more leeway.
Chris Hayes: You said reporting like the notion that you would be like reporting all the embryos.
Jessica Valenti: Yeah.
Chris Hayes: The last policy innovation I think that I want to talk about, which again is sort of cutting edge, but could happen and continue to happen and is all brought about Dobbs is the sort of surveillance of women’s pregnancies. This is something that Trump was asked about in a Time Magazine article. Would he be okay with red states surveilling pregnancies? Basically you get pregnant, you have to report it to the state and they monitor so that they know.
Jessica Valenti: Yeah.
Chris Hayes: Do you see that happening anywhere? Is that coming?
Jessica Valenti: Yeah. I mean, I’ve been tracking and I’ve been writing a lot about abortion reporting lately because it is a really big part of their strategy. They’re not starting with pregnancies. They’re starting with the abortions themselves, right. They want really detailed, specific information on every single abortion. I suspect then it will be miscarriages and there’s, they’ll sort of do this like backwards thing. But they’re doing a tremendous amount of data collection, both to intimidate and scare people out of getting care, right. You’re going to be a lot less likely to go get an abortion if you know that your information is going to be reported to the state government.
Chris Hayes: Right. This is in a state with a 15-week ban and you’re within the legal limit that you can get an abortion, but they’re like, you can get it, but we’re not happy about it. And we’re going to keep a database and let you know that.
Jessica Valenti: Yeah. And we’re going to ask you like 15 questions about why you’re doing this. What’s your, you know, circumstance at home? Are you married? How much money do you make? Are you in an abusive relationship? Asking all of these like really pointed questions.
Chris Hayes: Right.
Jessica Valenti: You’re going to be a lot less likely to go get care. And so they know that. And then the other thing they’re doing is they’re collecting all of this data in order to misuse it and present abortion as something dangerous. And this is something I’ve written about in Texas. They have an abortion complication reporting law where you’re supposed to report any, you know, complications from abortion. But the way they’ve written the law is literally you could go into a hospital emergency room two years after you have an abortion with some sort of infection and they have to count that as an abortion complication because of the way the law is written —
Chris Hayes: Right.
Jessica Valenti: — so that Republicans at the end of the year can say, look at all of these horrible abortion complications. And so they’re not dumb. They are really taking data very seriously, especially because they know that people do not see them as scientifically credible. They know that Americans, whether or not they agree with them, largely see them as like an ideological religious movement, right? And so they really badly need to make themselves seem scientifically and medically credible.
Chris Hayes: I guess the final question and this is such an obvious question and point, but I just want to land on it, which is, you know, one of the takeaways we had from the immigration conversation was look, if you think immigration in the U.S. is a bad thing, both, you know, asylum, undocumented and legal, like Donald Trump has and will try to reduce the amount of immigration that happens in this country across all different places. Like whether it’s legal, whether it’s undocumented at the border asylum, which is legal.
If you think taxes on rich people and businesses are too high and they should come down, like Donald Trump has a record of cutting taxes for rich people and for corporations, he would probably try to do again. This seems like a place, like if you think abortion should be banned outlawed and criminalized —
Jessica Valenti: He’s your guy.
Chris Hayes: — Donald Trump is your guy. And if you think it should be protected that we should have a right to it, that there should be some federal law that now provides the safeguards that Roe used to, Joe Biden is your guy.
Jessica Valenti: Yeah. It’s very, very straightforward. And it’s also just, it’s not, to me, I’m not thinking even so much about what protections could Joe Biden offer. We’re already in a healthcare crisis, but it could get so much worse. And I don’t know that voters completely understand just how much worse it could get. Even if you don’t like either of them just think about it from a harm reduction standpoint.
Chris Hayes: Yeah. The Comstock thing, when I first realized it and it was explained to me was like a real light bulb moment of like, oh my God, let’s be honest. It would be hard to pass a national abortion ban. It just would be because —
Jessica Valenti: Yeah.
Chris Hayes: — it would be so unpopular even with the Republican majority. Like it would be tough. You would be fighting tooth and nail and you would have, you know, if you’re an abortion right supporter, there would be a lot of mobilization and that would have a good shot at killing it in one of the legislative houses. You know, depends on the margins, depends on what we’re talking about.
The Comstock Act really is like it’s Chekhov’s gun on the table that can go off.
Jessica Valenti: Yeah.
Chris Hayes: So people really need to understand that is not fanciful. That’s not like some weird hypo, like it was discussed before the Supreme Court where multiple justices seemed amenable to it being revived. It’s being discussed in Project 2025 and in circles that are close to people plotting the next Department of Justice. People that are up for attorney general, like this is very live and a real possibility and is a real like day one, things will change for abortion rights in America on January 20 or 21, 2025 if Trump’s elected. People should know that.
Jess Valenti who’s indispensable publication is called Abortion, Everyday.com. That was awesome. Thank you so much.
Jessica Valenti: Thank you.
Chris Hayes: Once again, great thanks to Jess Valenti. I should note that her website, Abortion, Everyday.com is a newsletter and website. You could subscribe to it. You can support it. There’s a podcast as well. I’ve found it an incredible resource for keeping track of just day by day, all the developments in the post Dobbs landscape and recommended highly.
You can e-mail us at withpodgmail.com. You could also get in touch with us using the hashtag #WITHpod across various social networks. You can find us on X. You can find us on Threads and Bluesky, all of which have me as chrislhayes. You can find us on TikTok by searching for WITHpod.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia. This episode was engineered by Katie Lao and Bob Mallory and features music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to nbcnews.com/whyisthishappening.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and featuring music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to NBCNews.com/whyisthishappening?