The Dubious Legality of Trump's DC Takeover

Kate and Leah recap the week's legal news, including argument calendars for the next SCOTUS term and President Trump's attempted federal takeover of Washington, DC. Then, it's our third annual State of The Uterus episode. Melissa and Leah talk with Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America, and Lisa Beattie Frelinghuysen, founder of ClutchKit https://theclutchkit.com/, about the current status of reproductive freedom three years after the Supreme Court overturned Roe v. Wade. Finally, Leah talks about the authors of After Dobbs: How the Supreme Court Ended Roe, But Not Abortion https://bookshop.org/p/books/after-dobbs-how-the-supreme-court-ended-roe-but-not-abortion-carole-joffe/21590425?ean=9780807017661&next=t. Favorite Things: Leah: Unbearable: Five Women and the Perils of Pregnancies in America https://bookshop.org/p/books/unbearable-five-women-and-the-perils-of-pregnancy-in-america-irin-carmon/76ffd7309181c49c?ean=9781668032602&next=t, by Irin Carmon; track list and cover art https://www.instagram.com/p/DNUBdFRh7CY/?utm_source=ig_web_copy_link&igsh=MzRlODBiNWFlZA== for Taylor Swift's forthcoming The Life of a Showgirl; Ben Platt's cover of Diet Pepsi https://www.youtube.com/watch?v=JSsRRzIPhjA&list=RDJSsRRzIPhjA&start_radio=1&ab_channel=ThePlaylistProject; Melissa's appearance on Nicole Wallace's podcast, The Best People https://www.msnbc.com/msnbc-podcast/the-best-people-with-nicolle-wallace/melissa-murray-jlo-law-rcna224309; "Redistricting Texas Now is Illegal and the U. S. Department of Justice is the Reason Why https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5371287," by Ellen Katz; and Laura Loomer's weird deposition https://bsky.app/profile/annabower.bsky.social/post/3lwagiglxps2b in a case against Bill Maher Kate: Vera, or Faith https://bookshop.org/p/books/vera-or-faith-gary-shteyngart/21879858?ean=9780593595091&next=t, by Gary Shteyngart; Parable of the Talents https://bookshop.org/p/books/parable-of-the-talents-octavia-e-butler/7395430?ean=9781538732199&next=t, by Octavia Butler; Bury Our Bones in the Midnight Soil https://bookshop.org/p/books/bury-our-bones-in-the-midnight-soil-v-e-schwab/21504341?ean=9781250320520&next=t by V. E. Schwab; The Retrievals https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5360131; "The Chadha Presidency https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5360131," by Josh Chafetz; and "Trump, John Roberts and the Unsettling of American Politics https://www.nytimes.com/2025/08/14/opinion/trump-roberts-supreme-court-gerrymander.html?searchResultPosition=1," by David Dailey Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Melissa Murray?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and our lives. Church-state separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system. So they're pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right, religious public schools. And they're pushing for it at the Supreme Court in a case drummed that we talked about earlier this year on the pod.

• 0:43Melissa Murray?

  If you're listening to us, you see the writing on the wall. You know that we can and we must fight back. Join Americans United for Separation of Church and State and their growing movement because church-state separation protects us all. You can learn more and get involved at au.org/crooked.

• 1:01Speaker 01

  Mr. Chief Justice, if please, before it, it's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

• 1:13Speaker 02

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 1:43Melissa Murray?

  Hello and welcome back to Life of a Supreme Court Show Podcaster, also known as Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.

• 1:54Kate Shaw?

  I mean, our announcement of today's episode is probably going to get like 100 million downloads. I am quite sure.

• 2:00Melissa Murray?

  We will break the internet.

• 2:02Kate Shaw?

  We will break it all. Probably not, but we do have a great, although sometimes dark, show in store for you today. We are your hosts for this segment. I'm Kate Shaw.

• 2:12Melissa Murray?

  And I'm Leah Litman.

• 2:13Kate Shaw?

  And as is now typical for our summer episodes, we're going to start by talking through the most important breaking legal news of the week. We're then going to bring you a segment that is the latest installment of what is now an annual tradition of doing a retrospective on Dobbs and what that decision has wrought over the last year. For that conversation, we're going to be joined by two fantastic guests. And this year, we're pairing that retrospective with a conversation Leah recently had with David Cohen and Carol Joffe, who are the authors of a terrific recent book titled After Dobbs: How the Supreme Court Ended Roe But Not Abortion.

• 2:44Leah Litman?

  But first, as my introduction suggested, there's some news. And the news is this. TS 12 will be dropping the day before our live show in Chicago. It is epically titled The Life of a Showgirl. And if you thought live shows during Pride were on another level, just wait, Chicago, until you see a live show after a Taylor Swift drop.

• 3:09Kate Shaw?

  I'm so glad at the end of the sentence you translated TS 12, because 95% of our listeners will know what that means. But for the 5%, Taylor Swift has announced that she is releasing her 12th studio album in consultation with Leah before the day of our Chicago live show.

• 3:26Leah Litman?

  I try to make the show accessible to the Kate Shaws of the world.

• 3:30Kate Shaw?

  I am well aware. I am not the Kate Shaws of the world when it comes to Taylor Swift a little bit, when it comes to most things.

• 3:36Leah Litman?

  Okay. But now to the actual news we want to slash have to cover. We got some oral argument calendars.

• 3:43Kate Shaw?

  Right. This is not usually news, but this year, the court was very delayed in releasing its argument calendar for the upcoming October and November sittings. So we now know exactly what is going to happen in the first, well, we don't know, we now know exactly what is going to be argued in the first two months of the Supreme Court term, which we are on the cusp of. Again, these calendars were released really late. Georgetown Law's Debbie Schreger went back 18 years to track the release date of October argument calendars, which before now was never later than July 26, though, you know, three weeks essentially late this year. And we might have some idea what took the court so long, and it's not great.

• 4:27Leah Litman?

  So the court jammed the reargument in Louisiana versus Calais into its October calendar after not bothering to getting around to actually issuing the order telling the parties what question the court wanted argued until earlier in August. So they rushed this bad boy onto the calendar. And this is the case in which the court asked the parties to brief and argue whether Section 2 of the Voting Rights Act, which requires legislatures to draw districts where minority voters have political opportunities, is unconstitutional racial discrimination. A decision invalidating the Voting Rights Act, or the major portion of it that remains, would eliminate several majority-minority districts that are currently

• 5:11Leah Litman?

  held by Democratic representatives. And that could clear the way, would clear the way, for more extreme Republican gerrymanders and disenfranchising minority voters.

• 5:21Kate Shaw?

  So the question that this long delay and then announcement in the very first stretch of the October term raises a question. Did they rush the argument in this case to increase the odds of a decision that would enable more anti-democratic racial gerrymandering before the 2026 midterm elections? We cannot rule that out, right? The Chief Justice himself explicitly reminded us recently in the argument over the Birthright Citizenship Executive Order that the court can go fast when it wants to go fast. So let's play that clip here.

• 5:53Speaker 05

  Three years, four years, we've been able to move much more expeditiously. I think we did the TikTok case in a month. Presuming, I gather, an important part of your answer is that people can litigate differently, and one goes, one will go to Massachusetts, the other one will go to Houston, and you'll get conflicting decisions fairly quickly. Is there any reason why this court, and I gather that's your safety net, is that at the end of the day, whatever, however long the day is, this court can issue a decision and it will bind everything else? Is there any reason in this particular litigation that we would be unable to act expeditiously?

• 6:37Leah Litman?

  And let's just look back and compare how the Supreme Court has chosen to handle the timing of the following cases. The case restoring Donald Trump to the ballot after states disqualified him for his participation in January 6 and the Stop the Steal movement. They went quickly there, managed to get that one out, you know, before major primary day. Donald Trump's immunity appeal, which they took their sweet time on, turning away Jack Smith's earlier request to hear the case and then delaying scheduling the argument for a few weeks, once they did opt to take it. The TikTok ban case, they went quickly there. Birthright citizenship, where they decided to take their sweet time and just not reach the merits on the government's applications.

• 7:19Leah Litman?

  Any unifying principle you can see here, Kate?

• 7:23Kate Shaw?

  I mean, you know that I don't want to reach for the conclusion that when expedition helps Donald Trump, or the Republican Party, or both, they can hustle. And when delay helps him and the Republican Party, they take their sweet time. But honestly, surveying the cases that you just walked through, it is really very hard to come to any other conclusion.

• 7:41Leah Litman?

  Yeah, you're not reaching for the conclusion. It's like slapping you in the face.

• 7:45Kate Shaw?

  It is essentially undeniable. And it's a really important part of, you know, I think, the shadow docket, not just the cases that the court decides without full briefing and argument, but the timing decision it makes about when it's going to hear argument in what kinds of cases and how quickly it's going to decide those cases. So in the vein of the shadow docket, we did get another shadow docket order this week. It had been like three weeks since we had a shadow docket order. And I was like, why do I feel this lightness? Like, SCOTUS has not delivered anything insane in a couple of weeks. I mean, granted, the country is on fire. That is true. But SCOTUS decided that, like, we had had a little bit of a peaceful stretch, and so they needed to get back on their bullshit. So here's what happened.

• 8:27Kate Shaw?

  Remember how when the Supreme Court decided Free Speech Coalition versus Paxton? In that case, we warned that while that case was about the state of Texas limiting minors' access to porn, and the court said that was okay, because, well, porn, that was essentially their reasoning, the decision opened up the possibility that the court would allow government to define other forms of speech as somehow troubling or concerning, and the court would allow states to limit access to that other kind of content as well? Well, they might have just done so, because SCOTUS denied an application for emergency relief, which had the effect of allowing Mississippi to enforce a law requiring parental consent to use social media that the Fifth Circuit had allowed to go into effect. So. As of the end of the term, it was just porn

• 9:12Kate Shaw?

  subject to lower First Amendment protection. And it is now, at least on a temporary basis, social media, too.

• 9:20Leah Litman?

  We should say, we don't know whether the Supreme Court will ultimately find the law constitutional. So the court didn't explain, you know, why they decided this application the way they did, except for Justice Kavanaugh. Of course, it's always Justice Kavanaugh wrote a separate cab curance that really isn't illuminating much at all, except for what he might not have wanted to reveal. So he wrote separately to say he thought the law was likely unconstitutional, but he was going to let the state of Mississippi enforce it anyways. Always the great concur, providing so much clarity and analysis to the law.

• 10:00Kate Shaw?

  Did you, when you read this order, were you like, oh, his clerks hate him? Like, who lets your aunt put out?

• 10:06Leah Litman?

  No, I read this and I was like, he just shoots from the hip, right? He is the embodiment of the vibes junkie, right? That like, I feel like I am talking about when I talk about the justices, because in this writing, he made one thing clear. In most cases, a likelihood of success on the merits is not enough to obtain relief on the shadow docket.

• 10:35Kate Shaw?

  Because he said that the challengers to this law were likely to succeed on the merits, but that they hadn't shown that the equities favor them. But he didn't say anything about what they had shown or why, or what the deficiency was. So the only conclusion, back to sort of the earlier, you know, Occam's razor that we were offering, is that, you know, sometimes likelihood of success on the merits is not going to be enough to get relief, but sometimes it will be. So which cases will those be?

• 11:04Leah Litman?

  Well, you know, surprise, surprise.

• 11:07Leah Litman?

  Those were the Trump administration is asking for emergency relief, right? In those cases, the court just seems to equate likelihood of success on the merits with an entitlement to relief on the shadow docket, right? But that involved the Trump administration and this merely involved Mississippi. Like this cab currents, as you say, you know, made you wonder, do his clerks hate him? It's like DEFCON 10 levels of cluelessness. And I just could not. And weaving in the news I want to talk about with the news I don't want to talk about, a question I have for you, Kate, is this. Do you think Justice Kavanaugh experiences talking to his female colleagues the way the Kelsey brothers experienced talking to Taylor Swift?

• 11:50Leah Litman?

  By which I mean, the boys think they're talking to Isaac fucking Newton because the girls know words like fortuitous and esoteric. So when Justice Kagan or Jackson say things like stare decisis or analogous, or, you know, do things like legal analysis, does Justice Kavanaugh say, oh, big words, big words?

• 12:08Kate Shaw?

  I mean, I think when, when, when Justice Barrett uses those words, he's more excited. I'm not sure that he's as moved when Justice Jackson and Justice Kagan.

• 12:15Leah Litman?

  Fair enough.

• 12:16Kate Shaw?

  But they do in fact all know many, many high level vocab words and, and he does not.

• 12:23Leah Litman?

  Yeah.

• 12:24Kate Shaw?

  All right. So on from Justice Kavanaugh, because in other news and, you know, obviously more serious news, Donald Trump has decided since we last released an episode of this podcast to essentially seek to take over the District of Columbia. That's an overstatement, but only slightly. So the ostensible pretext for the emergency that Trump claims justifies his assertion of unprecedented authority over the nation's capital is a crime wave in DC. Of course, this is actually exaggerated to the point of obvious falsehood. Crime rates are actually down in DC. But there was one crime in DC that seems to have set all of this in motion because DC is where one Mr. Big Balls, a character we have talked about previously on this show,

• 13:08Kate Shaw?

  a former, but then maybe once again Doge staffer. He was recently attacked by multiple individuals who may have been involved in an attempted carjacking. And it seems as though in response to this, the administration literally decided to call in the National Guard.

• 13:24Leah Litman?

  So a brief bit of background for what's happening here. Washington DC is a federal enclave that is, it is property of the federal government. Congress in 1973 passed a law, the Home Rule Act, that creates the current DC government. And that is DC's local government. And that has three branches. And that law gave a bunch of authority to both the mayor of DC, you know, the executive, and the DC council, the legislature, both of whom are elected. And the federal government still has control over federal institutions in DC like national parks, right, or monuments, but ordinary law enforcement is done by DC officers.

• 14:05Kate Shaw?

  And a key thing to emphasize is that the federal government has substantially more power and authority over DC than it does over other places like New York or Los Angeles. So technically, the DC National Guard, unlike other state national guards, is commanded by the president, and it may undertake federal missions without being federalized. The fact that the DC National Guard is controlled by the president is one of the reasons that it was so conspicuous and so concerning when President Trump did not call up the guard to respond to January 6th. So the president has this power, but the DC National Guard is actually quite small.

• 14:38Leah Litman?

  And so the president tried to do something else and rely on a provision in the Home Rule Act that also gives the president power to use the DC Metropolitan Police Department, quote, "for federal purposes." Whenever he determines that special conditions of an emergency nature exist, end quote. That authority lasts for 30 days when he informs Congress. And again, it gives him control over them for purposes of doing like federal presidential priorities, but doesn't mean and shouldn't mean, you know, he tells them how to do things like enforce DC law, you know, we're going to come back to this power in a second because, surprise, you know, there are questions about whether it is being lawfully used here.

• 15:21Kate Shaw?

  The press conference in which the president announced all of this was filled with all sorts of gems, and so we're going to do a rapid response to some of these clips. So without further ado, let's play them.

• 15:31Speaker 06

  Our secret weapon here in DC is US Attorney Jeanine Pirro.

• 15:35Leah Litman?

  Oh, so you're going to fight crime with box wine? Sounds amazing. Um, the franzia force.

• 15:43Kate Shaw?

  The residents are quaking.

• 15:45Leah Litman?

  Okay, you can respond to the next one.

• 15:48Kate Shaw?

  Okay.

• 15:48Speaker 07

  And I found an old statute, very old, early 1900s, that said of you... So much as touch or even think about destroying a statue or a monument in Washington, DC, you go to jail for 10 years with no probation, no anything.

• 16:07Kate Shaw?

  Yeah, I mean, I, this brought to mind an observation I made a couple of minutes ago, like, where was this kind of energy on January 6? And speaking of, there's another clip along the same lines, we'll play that one here.

• 16:20Speaker 06

  Let me be crystal clear, crime in DC is ending and ending today.

• 16:24Kate Shaw?

  I mean, the question, the announcement that crime in DC is ending and ending today really

• 16:32Leah Litman?

  Big if true.

• 16:33Kate Shaw?

  Particularly considering many of the things emanating from the White House.

• 16:38Leah Litman?

  Yeah, and kind of along those lines, like NBC News broke the story that President Donald Trump's pick to run the Bureau of Labor Statistics was among the crowd outside the Capitol on January 6, 2021. You know, the White House has said he was just a bystander who wandered over after seeing coverage of the news. But I guess this means our little sprinter slash marathon runner may have the opportunity to vote to confirm someone that he ran away from. How fun for him. This is, of course, a reference to Josh Hawley.

• 17:11Kate Shaw?

  So happy they will be reunited in this way.

• 17:12Leah Litman?

  Yeah.

• 17:13Kate Shaw?

  Okay, one last clip, which is part of Leah's beat, which is Unitary Executive. Watch.

• 17:18Speaker 08

  We are now able to report that the murder rate is on track to be the lowest in US history, in modern recorded US history, thanks to this team behind me and President Trump's priorities.

• 17:29Leah Litman?

  So just to be clear, this is the Unitary Executive, where crime can be both down and up. It is so unitary, right? Like, that is Cash Patel saying, crime is down. And yet, the entire premise of the attempted takeover of DC is that there is an out of control crime wave, and it's just a Schrodinger's executive, as ever.

• 17:54Kate Shaw?

  Indeed. But he meant that it was down, he was projecting forward 72 hours, it was all going to be down in response to this overwhelming show of federal force.

• 18:02Leah Litman?

  I did not realize he had those powers of foresight.

• 18:06Kate Shaw?

  He does, he does. Anyway, as part of this big police push, Attorney General Pamela Jo Bondi does think she has finally found the deep state. And what I'm referring to here is the administration's arrest and initiation of a criminal complaint against a federal employee who was captured on video throwing a sandwich at one of the federal officers deployed to police DC. From the video, it does not appear that anyone was harmed by the throwing of said sandwich. That did not stop the administration from trying to levy felony charges against the thrower of the sandwich. The White House also posted a genuinely insane and really chilling video of the arrest of this individual, who is

• 18:48Kate Shaw?

  a veteran and lawyer from the Justice Department, offered to turn himself in. I mean, the video, if you haven't watched it, is honestly fascist in aesthetic.

• 18:58Leah Litman?

  Oh, yeah.

• 18:59Kate Shaw?

  And to my mind, it's also kind of laughable and pathetic. I mean, this was like an international lawyer in a residential neighborhood who was offering to turn himself in. And this kind of show of force, like dozens of heavily armored, like tactical gear police officers from various places, I think, various agencies, is appalling. It is wasteful. It is dangerous. This is what you mean by masculine energy. Like, this is what it takes, like, two dozen full, like, tactical gear forces from wherever they hail to arrest an international lawyer who threw a sandwich. Like, I mean, this is just a confirmation of, I feel like, the real weakness at the heart of this project. But also, I think,

• 19:40Kate Shaw?

  the escalation of potential danger that this kind of increased police presence, and federal police presence in particular, creates, like, on the ground.

• 19:49Leah Litman?

  Yeah. And we should say that the government, you know, carried out the arrest here after initiating a complaint against the individual. But in order to actually go through with this case, you know, they would have to get a grand jury to indict him because they would like to charge him with a felony. And related to this are reports that the US Attorney's Office for DC, led by box wine fighting crime lawyer, the administration's secret weapon, Jeanine Pirro, has twice been unable to secure an indictment against a DC woman who was accused of assaulting an FBI agent during an ICE arrest. And You know, I guess I want to just pause and think about how it sometimes, maybe even often, feels like you are shouting into the void and not doing anything or able to

• 20:32Leah Litman?

  do anything. But this kind of messaging and protest and organization can help. Like, it can inform citizens about how to exercise the power they do have and to resist the administration's abuses of authority. Like, you go grand jury. You know, grand juries are supposed to be OK with indicting ham sandwiches and such, but please do not indict the thrower of this sandwich, who is the hero we need.

• 20:55Kate Shaw?

  Do we know if it was a ham sandwich?

• 20:57Leah Litman?

  No, no, I don't.

• 20:59Kate Shaw?

  But I'm saying it would be sort of, I don't know, some poetic in some way, if in fact it was. And in fact, he was not indicted by the grand jury. So we will see. So as promised, we wanted to return to the authority the Home Rule Act gives to the president to use, that is, really to borrow the D.C. Metropolitan Police Department for federal purposes. So after that announcement, a couple of days later, the D.C. Attorney General filed suit, actually on Friday morning, arguing the administration is exceeding its powers by trying to do much more than the statute allows the president to do. So the lawsuit maintains the president has attempted to seize control of the Metropolitan Police Department when the statute just allows him to require the mayor to provide the services of the MPD for federal purposes, but not to direct how they police local crime. The lawsuit also

• 21:43Kate Shaw?

  notes the president claimed Attorney General Pamela Jo Bondi was taking command of the MPD, and that the two of them purported to appoint the DEA administrator as interim commissioner of the MPD, and that Bondi also tried to appoint someone else to supervise, command, and control of MPD's entire operations, all this beyond the authority conferred by the statute.

• 22:03Leah Litman?

  Yeah. So the lawsuit raises multiple grounds on which the administration's actions might be unlawful. You know, some are the ones you just ticked off, you know, that they are trying to exercise powers that the statute just doesn't provide. The D.C. Attorney General's suit also challenges whether the president even has a basis under the law to request the services, since crime in D.C. is down, not up. And for this proposition, it cites one USA Dick, Ed Martin's, press release, which I loved. We are, you know, recording on Friday. We even tried to record late to avoid the prospect of late breaking news, but it is... Still possible, there will be some late-breaking developments in this case because as of the time we are recording, the district judge who drew the case, Judge Reyes, you

• 22:48Leah Litman?

  know, has been undertaking a hearing and we don't yet have a resolution from that hearing just yet, although in the course of those proceedings, she indicated she is not going to rule or review Trump's determination that there is an emergency or whether the officers are being used for federal purposes and what that means. She is instead narrowly focused on what the statute actually allows the president and attorney general to do vis a vis the Metropolitan Police Department, that is, what powers they have. And at the hearing, she said that Section 1 of the order was obviously illegal and spent really a lot of the hearing searching for ways to construe the remaining sections and get the parties to agree on construing the remaining sections as mere requests for services, you

• 23:30Leah Litman?

  know, rather than directives to rescind certain local orders and policies that apply to the D.C. police. Naturally, about 30 minutes after we finished recording, womp womp, the parties came back to the hearing and informed the judge that they had reached an agreement. Under that agreement, the federal government said they were going to rewrite Bondi's order, or else, you know, they kind of understood that the district court was going to issue a temporary restraining order, at least as to Section 1 of the previous order, which had appointed the DEA Administrator as Commissioner of the D.C. Metropolitan Police Department. So as a result of that agreement and the rewritten order, the D.C. Chief of Police

• 24:11Leah Litman?

  remains the head of the D.C. police and requests from the federal government of the D.C. Metropolitan Police go through the mayor. Bondi then issued a revised order, and the revised order does the following. So it directs the mayor to provide for the assistance of the D.C. police with the enforcement of immigration law, as well as assistance with locating and detaining people who are unlawfully present. And complying with requests for information from the federal government. It also appoints the DEA Administrator as the Attorney General's Designee for the purpose of issuing, let's say, commands slash directives slash requests to the mayor with respect to the MPD services.

• 24:55Leah Litman?

  And it directs the mayor to enforce DC local law as it relates to unlawful occupancy of public spaces. So it's unclear whether some of these sections or all of these sections are worded or will be carried out in a way that complies with the Home Rule Act. The revisions definitely address some of the purported legal deficiencies, like purporting to replace the DC Police Commissioner or directing the enforcement of law. But it's hardly clear it does address all of them. In particular, the Directive about enforcing DC municipal regulations and the DC Code. It's unclear whether those would amount to federal purposes.

• 25:38Melissa Murray?

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• 27:50Melissa Murray?

  That's spelled B-A-B-B-E-L dot com slash strict. Babbel dot com slash strict. Rules and restrictions may apply.

• 28:00Speaker 09

  CrookedCon is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor JB Pritzker coming, Senator Chris Murphy, and then over from the House side, Ilhan Omar, Robert Garcia, Sarah Jacobs, Jamie Raskin, Sarah McBride. We also have Carlos Eduardo Espina, Simone Sanders Townsend, Eugene Daniels, David Pakman, Jessica Tarlov, Heather McGee, and then all the other people that we've announced on the website. Plus, more to come. Great list. Check out the full lineup and get tickets right now at crookedcon.com. We'd love to see you there. That's crookedcon.com.

• 28:38Kate Shaw?

  So stepping back, even though the US federal government has more power over DC than it does over other places, thereby allowing the president to do things there that he couldn't do or is limited in his ability to do elsewhere, this kind of militarization is chilling. And it could normalize a practice, whether or not the law limits his ability to do it in other places, in the eyes of the public. And indeed, the Chair of the House Oversight Committee, Representative Comer, has made pretty clear that the plan is militarization coming to a city near you. Let's play that clip.

• 29:13Speaker 10

  And it's out of control. So the president had to send in the National Guard. And I think that you've seen, just in the last 24 hours, a huge decline in crime. And we're going to support this. We're going to support doing this in other cities if it works out in Washington DC. And again, it's unfortunate, but we spend a lot on our military. Our military has been in many countries around the world for the past two decades, walking the streets, trying to reduce crime in other countries. We need to focus on the big cities in America now, and that's what the president's doing.

• 29:45Leah Litman?

  And I think we should understand, you know, the specific targeting of DC is part of a larger project that extends further back, you know, indeed, to the Black Lives Matter protests. You remember when Trump called in out-of-state National Guard units in response to the protests and then demanded the destruction of Black Lives Matter Plaza? This is also a very pointed reminder, you know, of the importance of DC statehood and how it is not some, you know, simple partisan hack, but basically essential for democratic governance. And if you'd like to learn more about these legal issues, you know, would commend to you Steve Lattick's post, "Federalizing DC," on his Substack one first.

• 30:27Kate Shaw?

  Yeah, so that's a great post, and I do want to echo what you just said. I mean, I think... Any conversation about actual democratic reform, when we're someday on the other side of all this, like, has to be, has to take very seriously and maybe have at the very top of the list, D.C. statehood. It's if you needed evidence of just like the kind of democratic abomination that the lack of real representation in D.C. creates, like, I think the spectacle of the federal government doing what it's done in the last few days in D.C. is that evidence. Okay, so on last week's episode, Melissa and Imani, who was in guest hosting, noted that the D.C. Circuit, or at least a panel of the D.C. Circuit, has decided to join the Supreme Court's war against the federal district courts.

• 31:11Kate Shaw?

  This is what Leah was alluding to upfront when I said it had been a nice couple of weeks with no Supreme Court interventions, but this D.C. Circuit really did step into the breach. So as they noted on that episode, just before they started recording, a 2-1 D.C. Circuit panel with Judge Katsas and Judge Rao in the majority, both appointees by President Donald Trump, granted a writ of mandamus, this is a huge deal, to vacate Chief Judge Boesberg's order finding probable cause that members of the Trump administration were in criminal contempt of his orders. So having had a little bit of time to digest that insanity from the D.C. Circuit, what, Leah, did you make of it?

• 31:51Leah Litman?

  I mean, where to start? You know, as you noted, the writ of mandamus is extraordinary. The legal standard is it is only where a party has a clear and indisputable right to relief. The basic analysis of Judge Katsas and Judge Rao suggests no such standard is satisfied here. Also, a party is not supposed to have any alternative means of vindicating their rights. You know, Judge Katsas indicated that the administration basically did not violate the order and that it was clear and indisputable that they did not. But that reading just rested on a highly implausible set of inferences where you basically divorce the entire temporary restraining order from all of the proceedings

• 32:34Leah Litman?

  during the hearing. You divorce the minute order from the judge's articulation of the hearing. The idea that the judge adopted, you know, one definition of removal that makes no sense in that context and then would promptly change his mind 30 minutes later, after, again, the entire focus of the hearing was about transferring custody of the men to El Salvador, not physically removing them from the United States. You know, Judge Rao basically said, well, this order is additionally problematic because basically it gave the government a choice to avoid identifying possible contemners by actually curing the contempt and reasserting custody and control, as if that somehow made

• 33:15Leah Litman?

  it more coercive, not less. Like, it's just embarrassing stuff, I think. Yeah.

• 33:22Kate Shaw?

  I actually think if you didn't know anything about the proceedings, they sort of wrote as if no one was going to actually fact-check or law-check anything that transpired in the district court. And it suggested a kind of unreasonable district judge that was just like unrecognizable if you had followed anything from the very beginning of this case before Judge Boesberg. I actually kind of couldn't believe they, you know, not that this is a great thing, but there is often this kind of sense of solidarity and clubbiness among federal judges that I think can be a real problem. But I was actually shocked that they would so grossly distort the record of a respected district

• 34:04Kate Shaw?

  judge in this case, because I guess they want so badly to protect the Justice Department in this administration. Like, it was really, really appalling. But don't worry, that same panel has now come back and vacated a lower court order that had blocked the Trump administration from destroying the Consumer Financial Protection Bureau. Because, you know, the Supreme Court allowed them to do it with the Department of Education, so why not make some fish soup of the CFPB as well, right?

• 34:30Leah Litman?

  Oh, yeah, for sure.

• 34:31Kate Shaw?

  So they basically concluded that the various decisions to abolish the CFPB are not amenable to judicial review.

• 34:39Leah Litman?

  So we're going to have to boil down the reasoning. You know, the total number of pages in this opinion is more than 100. But a key part of the reasoning is essentially the idea that the government didn't say, right, it didn't write down, it didn't announce that it was shutting down the CFPB. Instead, the government said it didn't have the authority to do that and merely issued stop work instructions, canceled contracts, declined in return funding, fired employees, and terminated the lease for its headquarters. Like, this is actually some of the reasoning, quote, "nor did..." The positive shutdown prohibit any legally required work, end quote. Okay, but it just effectively gutted their ability to do the legally required work. The reasoning continues, quote, "The plaintiffs point to no definitive statement regarding

• 35:23Leah Litman?

  an agency shutdown, but seek to infer one from various specific acts to downsize," end quote. Literally within hours of the D.C. Circuit releasing this opinion, Attorney General Pamela Jo Bondi said, "Watch this." She posted on X that in a two to one ruling, "The D.C. Circuit sided with my Justice Department attorneys in our effort to dismantle the CFPB." Unitary executive, right? Like, just.

• 35:52Kate Shaw?

  I mean, yeah. So that's Bondi waving the flag of victory in ways that seem to render problematic some of the reasoning in the opinion she is crowing about. But back to that opinion itself for a minute. So Judge Katz goes on, quote, "The positive shutdown decision is insufficiently discreet to qualify as agency action. To begin with, no statute or regulation authorizes the CFPB to shut itself down, so the positive decision is not derived from any authoritative text that might help structure judicial review."

• 36:21Leah Litman?

  Like, what is he doing? What is he saying here? He's literally restating the substance of plaintiff's legal claim. Like, you're right, no statute or regulation authorizes the CFPB to shut itself down. And that's the problem, my guy. Right? And like, it doesn't matter that they're not doing it in one fell swoop, right? It's called death by a thousand cuts. And, you know, the majority also went on to say, like, "Well, even if they plan to shut down the agency, they'd have to do some other things in order to actually accomplish that, you know, beyond just writing a memo." And it's like, no duh, but you don't have to wait until the administrative state is literally blown up before doing anything about it.

• 37:00Kate Shaw?

  Or do you?

• 37:01Leah Litman?

  Right.

• 37:04Kate Shaw?

  Okay, some other quick news to cover. One, the administration is trying to do some kind of review of the Smithsonian. So Trump sent a letter to the Smithsonian Institution requesting a, quote, "comprehensive internal review of several of its museums to bring the organization into line with Trump's vision for history and culture." Quote, "This initiative aims to ensure alignment with the president's directive to celebrate American exceptionalism, remove divisive or partisan narratives, and restore confidence in our shared cultural institutions."

• 37:34Leah Litman?

  The letter goes on, quote, "Within 120 days, museums should begin implementing content corrections where necessary, replacing divisive or ideologically driven language with unifying, historically accurate, and constructive descriptions across placards, wall didactics, digital displays, and other public-facing materials," end quote.

• 37:52Kate Shaw?

  Naturally, some of the targeted museums include the National Museum of African-American History and Culture and the National Museum of the American Indian. Really raises the question, like, what, pray tell, is the non-divisive language these institutions are supposed to use to describe slavery and genocide?

• 38:08Leah Litman?

  I guess we will find out.

• 38:10Kate Shaw?

  I guess we will.

• 38:11Leah Litman?

  So, last bit of news we will leave you with are just notes on some of the pending shadow docket applications that we are waiting for the justices to act on any day now, because we live in a timeline where the court doesn't even stop for the summer. You know, we wanted to highlight these two shadow docket requests that are from the Trump administration.

• 38:30Kate Shaw?

  So, one pending application concerns the National Institutes of Health and a lower court ruling that had blocked termination of NIH grants that the government found politically objectionable.

• 38:39Leah Litman?

  And the other is about the California-Los Angeles roving patrols of ICE and specifically the lower court decision that had blocked ICE from rounding up people for speaking Spanish and having brown skin, i.e. racial profiling. You know, the administration has asked the Supreme Court to let them do some of that.

• 38:56Kate Shaw?

  All right, that's the news we've got for you. Stay tuned for our annual Dobbs retrospective and then a discussion Leah had with the authors of the great new book, After Dobbs.

• 39:05Melissa Murray?

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• 40:32Melissa Murray?

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• 41:14Leah Litman?

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• 41:41Speaker 11

  Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is going to have to do some serious soul searching. Join us, Washington DC, November 5th through 7th at the Second Annual CrookedCon. It's going to be the Positive America hosts and some of the smartest people in politics. We're going to try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to CrookedCon 2026. Head to crookedcon.com to get your tickets now.

• 42:28Leah Litman?

  It is now that time. It is our annual Dobbs retrospective, The State of the Uterus. We committed to doing this every year because we did not want this, by which I mean Dobbs and its fallout, to recede from memory. Rebecca Traister, on our very first Dobbs retrospective slash State of the Uterus, warned us that media might begin to think more stories about the same fallout became old or stale, when the reality is consequences for women were going to be, are going to be generational, systemic, and staggering.

• 43:03Melissa Murray?

  I think the other challenge, too, in this moment where it seems like there's so much going on that it's hard to focus on the fallout of Dobbs because it just seems like it was a zillion years ago, even though it was only a couple of years ago. But so much has happened since then, and so. It's really important to just stay in the moment and remember it. And to help us do that this year on the Dobbs retrospective, we are delighted to be joined by two fantastic guests, Alexis McGill Johnson, the president and CEO of the Planned Parenthood Federation of America, and new to the pod, but true to the pod, Lisa Beattie-Freelandhausen, who is a former clerk to Justice Ginsburg. She has served on the Board of Planned Parenthood

• 43:44Melissa Murray?

  of New York for almost two decades. She now works with Banyan Global, and she is the founder of Clutch Kit, a reproductive health kit that we're going to learn more about on today's episode. So, welcome to the show Alexis and Lisa.

• 43:57Speaker 12

  Thank you.

• 43:58Melissa Murray?

  Good to be here. Lisa, before we even get into this, can you explain to us, what is Clutch Kit? And I get it, it's for those clutch moments, but what are those clutch moments and how can you help?

• 44:10Speaker 12

  Right. After the Dobbs decision, we decided to really provide women and men, but you know, my first priority is women across the country with a kit that has the tools in it to prevent unwanted pregnancies. It turns out in our country, we have an extraordinarily high rate of unintended unwanted pregnancies, higher than any industrialized nation. And we thought if we could give women the tools to prevent unwanted pregnancies, so that they had them in their room with them, that we could at least start to help in that way. And these are tools like a tin of condoms, emergency contraception, the morning after

• 44:52Speaker 12

  pill, and pregnancy tests that are over the counter in all 50 states, legal in all 50 states, but hard to access. And you know, there's some 8,000 zip codes that are considered contraceptive deserts. And so the idea here was to give women the tools, should they ever need them, to prevent unwanted pregnancies.

• 45:16Leah Litman?

  So thinking about this last year, we learned about the first known, or at least reported deaths that were due to abortion bans. That included Candy Miller, Navia Crane, Amber Thurman, Josely Barnica, Portia Nuzmi. And we learned about some of these deaths because of ProPublica reporting. You know, some of those stories reported on findings of the Georgia Maternal Mortality Committee. That is, the committee concluded that these women's deaths were attributable to abortion bans. And perhaps in response to that reporting, CNN later shared that Georgia actually disbanded the committee. And Washington Post confirmed that as well. And then the Texas Maternal Mortality Commission announced it wouldn't review cases from 2022

• 46:01Leah Litman?

  and 2023. The White House also shut down the Pregnancy Risk Assessment Monitoring System at CDC because, as Talking Points Memo explained, it had questions about race, among other things. So I guess I would put it to you first, Alexis. Like, what does it say that the deaths of these women did not move the needle in this country when it comes to protections for reproductive freedom, women's legal rights, like the reported death did in Ireland? And that there are instead these efforts to suppress the information?

• 46:38Speaker 13

  To me, what it says is that the focus on consolidating power and control over our bodies is so compelling that they are willing to actually hide the information rather than consider the implications and the value of our lives. I was actually stunned to hear, I was at a press conference with Shanette Williams, who's Amber Thurman's mother, this year while we were fighting the defund bills.

• 47:10Speaker 13

  And she said that she learned that Amber died because of an abortion ban through the ProPublica reporting. So that at the time of her death, it just was, you know, she had some complications. Everybody was doing everything they could and it turned into the most awful sinister situation. But she did not actually know that the abortion ban was the cause of her death at the time.

• 47:39Melissa Murray?

  The reason why Amber couldn't get the emergency abortion that she needed.

• 47:43Speaker 13

  Exactly. Right. Exactly. I mean, in all questioning the, you know, going out to the park, not being sent home, kind of raising the questions, but not really putting all of those pieces together until the incredible reporting happened at ProPublica. And then having to be re-traumatized, learning that it was preventable, right? It was an unnecessary loss and, you know, her grandchildren will have to, she and her family will have to live with that forever. So I do think that the storytelling has continued to be important to keep a level of understanding the implications. We are kind of structured out of power in a lot of ways. And I think that, that, that sometimes the storytelling can't rise to the level of structural change.

• 48:27Speaker 13

  And so we have, but we still have to continue to do it so that we can build more energy towards that.

• 48:31Melissa Murray?

  We have also learned, not just of these women who have had tragic and regrettably preventable deaths because of abortion bans. We've also learned of studies that have documented the continuing healthcare fallout from Dobbs. So The Washington Post reported on the increase of infants who have been abandoned in the state of Texas. Texas is a state with one of the nation's most restrictive abortion bans. There are no exceptions for rape or incest. And Texas also ranks next to last for women's health and reproductive care, according to the Commonwealth Fund. So women are having babies and those infants are being abandoned because women aren't able to care for them. There was a recent study in the Journal of the American Medical Association, pediatric

• 49:15Melissa Murray?

  section, that reposted an American Journal of Managed Care study that found that Dobbs led to a 7% increase in infant mortality and a 10% increase among infants with congenital anomalies. We already lived in A country that had a staggeringly high maternal mortality rate for a developed country, and this is apparently only increased. ProPublica found that sepsis rates and second trimester pregnancy loss hospitalizations increased by more than 50% after Texas enacted its near-total abortion ban. And the same study identified an increase in the number of in-hospital deaths of pregnant or postpartum women, an increase that was even above the deaths that occurred during the height of the COVID-19 pandemic.

• 49:59Melissa Murray?

  And another ProPublica study on Texas found that after Texas made performing abortions a felony, the number of blood transfusions during emergency room visits for first trimester miscarriage care increased by more than 50%. And those are just general studies on top of the continued stream of reporting on these individual cases of women who are dying in parking lots, being sent home, septic, all of these things. And I guess, Lisa, how do we tell this broader empirical story in a way that humanizes it, that makes it relevant to the American public? I mean, all of this is happening, and it seems like no one is paying attention, that, you know, we're still having the same conversation about abortion, and that conversation seems

• 50:44Melissa Murray?

  to be happening only with a certain select number of people, when in fact, these bans are affecting all of us.

• 50:51Speaker 12

  It's a terrific point, and while we do believe that storytelling is incredibly important, it's been a cornerstone of many different civil rights movements, especially those based in equality. It is not resonating with, certainly not this administration. You know, this administration is maybe pro-birth in a way, but not pro-life. They are very focused on, I mean, one of the reasons that we took a look at contraception is because...

• 51:30Speaker 12

  You're talking about stories that have been publicized in different journals and studies. But, you know, there's a very much of a below the radar movement happening, which is very pro-birth. And it's attacking contraception, both in terms of financial attacks. So, cutting Medicaid, cutting Title X, cutting all kinds of support to high-quality clinics, like those that Alexis oversees. The federal contraceptive coverage in the ACA is being cut. All of these affect women's ability, even just to get proper contraception in the beginning. Legally, legislatively.

• 52:12Speaker 12

  And then, as you were saying, in terms of like, marketing. I think that they're crushing accurate information. So, these stories are being pushed down. They're erasing, erasing even terms like gender and sex, reproductive health. You know, the reproductivehealth.gov website went down. A website that a lot of women went to for trusted information. They're not teaching sex education in schools. There's this effort to sort of squash information and squash education. And market a very different, you know, women should be having babies approach.

• 52:54Speaker 12

  Do you remember there was that talk around a $5,000 bonus?

• 52:58Melissa Murray?

  The baby bonus, the baby bonus, yes. Was it in the Big Beautiful Bill, or was it just the billionaire bonus? I can't remember.

• 53:07Speaker 12

  I think it was not in the Big Beautiful Bill.

• 53:09Melissa Murray?

  Weird, so weird.

• 53:11Speaker 12

  It's so weird, because of course, like, and, and, you know, that's, that's kind of what's going on here. It's this very underhanded approach to...

• 53:22Speaker 12

  Get women, I think, to have more babies. Um, and, and not really allowing the stories, um, and the risks associated with that come to the forefront.

• 53:36Melissa Murray?

  Well, it's not even just like not being clear about the risk associated with bringing a pregnancy to term in your quest to have more babies. It's, you know, after the baby is born.

• 53:44Speaker 12

  Yes.

• 53:44Melissa Murray?

  Completely dismantling any kind of infrastructure of care that would be available to support.

• 53:49Speaker 12

  Right.

• 53:49Melissa Murray?

  Those who have to raise these children.

• 53:51Speaker 12

  Right.

• 53:52Melissa Murray?

  And, and the, and the point about suppressing information is such a great point. And it's so relevant for you, Alexis, because that's the origin of Planned Parenthood. Margaret Sanger, Mary Ware Dennett, they were all about disseminating information to women who were hungry to figure out, how do I limit the size of my family so I'm not on death's door when I deliver my 10th child? I mean, like, that was the origins of the birth control movement.

• 54:19Speaker 13

  Absolutely, right? And I mean, for, for all that we can and, and should understand about, you know, Sanger's full and complicated legacy, you know, she does stand very strongly as an avenger. And ensuring that women had access to basic information around reproduction and could make choices about when, if, and how they would continue their family or start their family, uh, what have you. And that is like still obviously the work that we continue today. I do think it's important to put all of these into context of what, um, you know, we're, we're 202 days, I think, into tyranny. Um, maybe a little bit longer, depending on, you know, when, when, when we start those conversations, at least the contemporary, contemporary tyranny, if I might say.

• 55:02Speaker 13

  Um, and, you know, the first thing that authoritarian governments do is they focus on cutting off the rights for half the population, right? They focus on stopping access to reproductive care and information because it's a way to control the population. You know, just in the last couple of days, you know, there's a, essentially a federal takeover, police takeover in DC. Like, there, there are these, these. Like, we have to be looking at this in the context of this is not just, just a, a, a post Dobbs moment, right? It is actually emblematic of the broader things that are happening to stop, you know, accurate information sharing, to challenge our ability to advocate, to Lisa's point, on, you know, freedom based on, on our identity inequality. And there are structural

• 55:47Speaker 13

  systems that are supporting those, those things. And so I look at the incredible and horrific set of stats that you started with, and it is very clear that abortion bans have made pregnancy more dangerous. And we are also fighting to be able to help people connect the dots to a bigger picture of what they, opposition is trying to advance. Because it's not, it was never intended to stop at banning abortion.

• 56:12Leah Litman?

  So we should note that when Alexis, you referenced Sanger's complicated history. Alexis is referring to the narrative that has been amplified in right-wing conservative circles that Sanger pushed birth control on racial minorities as a way to suppress birth rates of minorities. That's not, you know, exactly true, but like, she has some kind of ties to problematic movements. But it does raise a question, Alexis. There are all of these ostensible claims to be pro-birth, or, you know, floating pro-birth policies, but are they pro-birth for everyone?

• 56:45Speaker 13

  You know, I, I think it's not clear. I mean, I, I spent a lot of time trying to think about what is their end game.

• 56:52Leah Litman?

  I'll, I'll say it more plainly. Leah is being very politic. Do they want black people to have more babies?

• 57:01Leah Litman?

  Okay.

• 57:05Speaker 13

  You know,

• 57:05Leah Litman?

  Cool, okay.

• 57:06Speaker 13

  Yeah, I mean, I mean, yes, they need a labor force. I think there are a bunch of strange bedfellows in the opposition that have come together, right? Some people are just only there for the deregulation. Some people are only there for the, you know, for the, for the

• 57:20Leah Litman?

  Misogyny.

• 57:21Speaker 13

  Pro-birth misogyny, you know. And I think that, I think there are, there are those who have been, obviously, animating around the white population declining, and, you know, more birth are very explicit about that. And, you know, we see the white nationalist contingent in, in part of this coalition, too. And I think a lot of the cutting off the social safety net, that will impact black and brown communities, the ICE raids, like, all of that is connected to Also, how to control a sad population, build more prisons and funnel into a labor force, however that that looks, whether that goes all the way back to the 1800s or whether that is a new contemporary form. I think that's real.

• 58:03Melissa Murray?

  So Lisa, we've been focusing on abortion and the policies that have restricted abortion and really shaped the nature of women's lives today. But you have rightly pointed out that it's not just abortion that's in the crosshairs here. It is also contraception, which is part of why you developed Clutch Kit. Can you tell us what the landscape for contraception looks like? Because I think a lot of people think that access to contraception is sacrosanct and that's not going anywhere. And I think that's not a great place to be. I think it's as endangered as everything else.

• 58:38Speaker 12

  Right. Great point. I think that the effort to restrict access, suppress access to contraception is being done sort of below the radar because contraception is so popular. It's, you know, 90% of Americans believe that access to contraception should be increased. That's 95% of Democrats, 90% of independents, I think, and 85% of Republicans.

• 59:06Melissa Murray?

  So that's like a bipartisan issue. The only thing that's gotten more bipartisan support is the transparency on the Epstein files.

• 59:15Melissa Murray?

  Like contraception and the Epstein files. These are the two issues that Americans agree on.

• 59:19Speaker 12

  Exactly. We really agree.

• 59:19Melissa Murray?

  Okay. Okay, great.

• 59:21Speaker 12

  And that that agreement actually is part of what we were thinking when we started Clutch Kit, that it would be great to sort of bring people, the pro-choice and anti-choice or pro-life side together in a place where they may be able to agree, which is the, you know, accessibility of contraception. But if you look at Project 2025.

• 59:44Speaker 12

  There's some direction in there around

• 59:47Melissa Murray?

  Yeah.

• 59:47Speaker 12

  decreasing access to contraception. And if you look at the Supreme Court's opinion in Dobbs, you know, again, there's some reasoning in there that gives you pause with respect to a right to contraception, based on the same rights, the same constitutional underpinnings, as you know, as, as Roe and Casey were. So, so there's that, okay, underneath. And, and I do think that it's been a very concerted effort. I mean, it's amazing to me to watch even the promotion of legislative efforts around making emergency contraception more difficult to access, requiring prescriptions, putting age restrictions on it.

• 1:00:30Speaker 12

  You have to have like parental consent to get contraception. I think part of this is because people don't know the difference between abortion medication and emergency contraception. Abortion medication, obviously this group knows, terminates an existing pregnancy. Emergency contraception, or the morning after pill, delays ovulation, so there's never a fertilized egg. There's never a pregnancy. But if you look at the way information gets out throughout our country, there's widespread confusion around whether or not emergency, whether emergency contraception is the same thing as abortion medication? And what's legal in different states?

• 1:01:13Speaker 12

  It's especially high and red states. I mean, the numbers are staggering in terms of women who do not know the difference and don't know what's legal in their states. And I think that's in part purposeful. So I do think that this, you know, there's a very thoughtful attack going on to decrease the accessibility of contraception, which as you know, is one of the, it's a huge factor in gender equality. You know, women will never achieve equality without contraception, without reproductive health. Those are key pieces to gender equality.

• 1:01:51Melissa Murray?

  Claudia Goldin won a Nobel Prize based on that insight alone. Yes, exactly.

• 1:01:56Speaker 12

  One of the things that was interesting to me when I was thinking about starting this project, it's both a for-profit and a non-for-profit, where we distribute kits to those who are underserved. A friend of mine, whose company owns Plan B, which is the dominant brand of the morning after pill, asked me, what do you think the most often purchased item is along with the morning after pill when somebody goes to a pharmacy? I guessed condoms and I was wrong. It's a bottle of water because women are taking it in the parking lot because there's a time limit within which to take that pill. It's much more effective the sooner you take it after unprotected sex. And unprotected sex, obviously, can be a failure to use contraception, the contraception

• 1:02:41Speaker 12

  broke, or you're a victim of rape and incest. One statistic that I think is horrifying is after Dobbs, there were 65,000 pregnancies brought to term due to rape and incest. 26,000 of those were in Texas alone. If those women who'd been victims of rape and incest had had a clutch kit for the morning after pill in their room, they would not have had to go through nine more months and additional months of trauma-related experience.

• 1:03:17Melissa Murray?

  You know, we've been talking a lot about Texas on this podcast because of the redistricting effort. Do you not think those two things are disconnected? Part of the effort to redistrict is not just to give Donald Trump an expanded majority in the House, it's also to keep the Texas legislature from passing policies that women in that state would want.

• 1:03:35Leah Litman?

  I took that as part of Alexis's reference to being structured out of power, right? And like why there is this gap between the power of storytelling, right, and the political results that like you can and should expect would follow from it. But, you know, Lisa, I'm glad you talked about contraception within the broader scheme of women's equality and gender equality because I think something else we wanted to talk about is just, in the last year, we have seen the Trump administration escalate its anti-women agenda, which is really like a violent anti-women agenda. You know, they dropped the Emergency medical treatment, an active labor act case against Idaho.

• 1:04:15Leah Litman?

  That is, we're no longer pushing the position that hospitals had to be able to provide stabilizing care to patients whose health and safety and possibly life required it. You know, they formally rescinded the guidance that had said EMTALA requires hospitals everywhere to be able to do that. The big, beautiful bill attempted to defund Planned Parenthood. The Supreme Court allowed states to do so in Planned Parenthood versus Medina. And perhaps in part because of the various Trump administration policies attacking women's health care and the social safety net. We learned that, according to the Washington Post, like more than 200,000 women over 20

• 1:04:59Leah Litman?

  have stopped working or applying for jobs since January with particularly pronounced drops for black women and women between the ages of 25 to 34. Leading economists to express concern that this is going to be a longer term setback for women. So maybe this is just like another version of the question I feel like I keep coming back to. But like, how do we get the country to see women as people and to care about this broader effort, which is to turn back the sexual revolution, feminism, you know, the idea that women get to do things that men do too?

• 1:05:38Speaker 13

  I mean, it's like coming on all sides, right? I feel like the bobbin' and weaving over here is like, here comes the court. Now, you know, it's like, I feel like Neo in The Matrix sometimes. Look, I think it's a, it's, it's a great question around, you know, like they are so actively codifying inequality and the way they are doing that, like I think about it like, the way they are able to do that is there is a fundamental lack of, of value of our humanity, right? That, that undergirds this because you don't take away rights from your peers. And so the, the way in which a minority, right? A vocal minority of lawmakers in all of these states are able to do this is, is, is just through, it's through gerrymandering. It's through taking over the judiciary.

• 1:06:23Speaker 13

  It's, you know, it is the system that they have built. And I would say, like, contraception is incredibly popular. Abortion is also popular. Right? Like, we should be looking at this not, not completely as if it's not cut through. Right? People, you know, there are a lot of people who fully understand what has happened. And they just feel powerless to do anything about it. There, there is no state where banning abortion is popular. There's no state where banning contraception is popular. There's no state where criminalizing providers or patients is popular. And so their, their ability to do this without kind of any accountability from their, their constituents is simply because the constituents don't have the levers of accountability that they are hoping for.

• 1:07:05Speaker 13

  I think this Medicaid defund is, is, will be the first opportunity for us to kind of, you know, claw back a little bit more structural power in, in, in Congress next year because I think there are so many people who actually didn't even understand how much they were relying on access to, to Medicaid or that what they were getting was being paid for through the Medicaid insurance program. They thought it was like Apple Care or Badger Care, you know, in Wisconsin. And in fact, it turns out that the same dollars that were being used to support their, their families, right? Because this is, again, doesn't stop abortion or contraception, but like hospice care for their mother-in-law or mental health

• 1:07:44Speaker 13

  for their children, the kind of full spectrum of how we, and many caregivers as, as women rely on, on these resources are being stripped away and impacting families, I think is, is a vulnerability that we can exploit in this moment and should to help people both understand the role of government, social safety net, and also what it means to advocate and really build power. We've settled into like a state-by-state fight, which is critically important. I think it has been the many iterations of Democratic policies, strategies of focusing just on the federal level and just on the Senate and just on the judiciary.

• 1:08:25Speaker 13

  Has not served us for building like a powerful popular movement to stop this. And so we are somewhat kind of working backwards, whether that's through the ballot initiatives that have helped us bring together coalitions of progressives and independents and majority constituencies in states where we have direct democracy to allow us to kind of demonstrate that this is not a popular agenda. And there are places like Texas where we will not be able to do that because they have continued to lock themselves into power. But I do think that it takes these, these local and state fights to connect them together to actually really stop this. And it's going to take time, right? Like this is not, this is not happening overnight.

• 1:09:09Speaker 13

  We've been laying out a plan in 2040 to think about where we need to be and what that needs to look like. And we have to be really disciplined and thoughtful about how we hold the coalitions together to get there.

• 1:09:20Melissa Murray?

  Can I go back to piling on Texas? Can we do that some more?

• 1:09:24Leah Litman?

  Yes.

• 1:09:24Melissa Murray?

  Yes. It's not just that we're seeing this violently anti-woman agenda. We're actually seeing, you know, what I might term anti-woman entrepreneurship in that there are all of these efforts to push the envelope even further on what you might do to women. So for example, a Texas judge recently fined a New York doctor $100,000 for prescribing abortion pills to a Texas resident. A Texas man is suing a doctor in California for providing his girlfriend with anti-abortion drugs. And that Texas man is not only seeking damages, but also an injunction for, wait for it, all current and future fathers of unborn children in the United States.

• 1:10:06Melissa Murray?

  Judge Matthew Kaczmarek is going to have a field day with that standing issue. Like absolutely bonkers. All of this is going on.

• 1:10:14Leah Litman?

  Right. And like that phrasing also gestures to, we are also continuing to see the rise of fetal personhood. You know, the idea that fetuses are rights bearing individuals entitled to rights under the constitution in ways that might require abortion or other healthcare services to be restricted on a nationwide basis. You know, there were allusions to fetal personhood. In the most recent Republican Party platform, which discussed the issue of abortion and contraception under the guise of life, there was a Second Circuit decision laying the groundwork for challenging New York's reproductive freedom protections. We have also seen leadership at the Office of Legal Counsel within the Department of Justice signaling some interest in fetal personhood, remarking about the prospect of certifying a nationwide class of unborn

• 1:10:59Leah Litman?

  children in the context of the Birthright Citizenship Executive Order as fascinating, a non-too-subtle nod to fetal personhood. You know, we have also seen, you know, talking about like building out Dobbs and its consequences. There is now a request to overrule Obergefell versus Hodges at the Supreme Court via the infamous Kim Davis. You know, I don't think we have any doubts that they are coming for and attacking LGBT rights. I do want to assure our listeners, I don't think this is the case in which they are going to do it for any number of reasons, right? It doesn't cleanly present the issue. She writes the First Amendment defense, there's sovereign immunity in there, right? Even Justices Thomas and Alito previously said this case did not present the vehicle to overrule Obergefell. But anyways, like that is-

• 1:11:44Melissa Murray?

  They're like, try harder, find a different case. Not this case, but a different case.

• 1:11:48Leah Litman?

  Exactly. So anyways, wanted to kind of note that. You know, Lisa, I guess we have talked about Clutch Kit, but in an effort to try and end this episode on a hopeful note, I would love to hear more about like the origin story of Clutch Kit, because I feel like we are going to end by encouraging people to be pro-women entrepreneurs, right? Pro-gender equality entrepreneurs and think about ways like they can help out. And so if you wouldn't mind kicking off that discussion with the origin story of Clutch Kit, that would be great.

• 1:12:27Speaker 12

  Sure. It's, it is really sort of a fun origin story. You all remember, it happened on the night of Trump's first inauguration. If you remember, there was not a huge crowd, but the next day at the Women's Rights March, there was an enormous crowd, couldn't even move, for those of us who were, who were marching. And I had brought my four kids down to Washington DC to march, and the night before the march, had a little dinner, where I'd invited Justice Ginsburg, my former boss, and Gloria Steinem to dinner, the two 80-year-old matriarchs of the women's rights movement.

• 1:13:08Speaker 12

  And Gloria Steinem often brings a few additional folks, some people who are speaking at the Women's Rights March the next day. And one of them was the, the actor that, that plays Hermione Granger in Harry Potter. Emma Watson. Emma Watson. We were sitting next to each other, and she said, "Right, what if we just take this whole issue away from the politicians, and give every woman out there a kit when she goes off to school? Give every woman a kit with all the tools that she may need, whether it's period products,

• 1:13:46Speaker 12

  or UTI, or STI, or, you know, sexual health and, sexual health and wellness tools, whether it's abortion medication, or contraception." So the kit was huge by the end of the night. We were having so much fun thinking about what every woman might need in her lifetime. And then, fast forward, when the Dobbs decision came down, I was walking with a friend, talking about the decision, and she said, "What are we gonna do?" And I said, "You know, I've always had this idea." It was actually Hermione's idea, but I think I want to do it, and just narrowly focus it on the prevention of unintended or unwanted, unwanted pregnancies." And she said, "We have to do it."

• 1:14:30Speaker 12

  And that weekend, we pulled together a team.

• 1:14:35Speaker 12

  Who brought different strains to the project and kicked it off. And it's been really, really exciting. We sold out in the first tranche. And, and now we're working on partnering with organizations around the country to help distribute the kits to those who, who need them. And look, it's not the full answer. Alexis McGill Johnson and Planned Parenthood provide the huge wealth of services to women's health. It's a small piece of that. But we're really excited about being able to do something. Just when people are feeling angry and upset about Dobbs, you know, people have been able to, our new effort is to try to get these kits on campuses.

• 1:15:20Speaker 12

  And people are helping us do that by making donations to their, their alma maters in the form of clutch kits. Like if they're making a donation to Dartmouth, for example, they might make a donation of clutch kits to Dartmouth. So we're getting them onto college campuses and into campus bookstores as this fall's effort that back to school rolls around.

• 1:15:43Melissa Murray?

  Listeners, if you'd like to know more about the clutch kit, you can go to theclutchkit.com. Kits are available for purchase and as Lisa just said, you can make a tax deductible donation to provide clutch kits to underserved communities or your favorite college community Wahoo Wah. All of that can be found there. Alexis, we'll give you the last word. You have been in this fight for a long time and the fight gets grimmer and grimmer, but weirdly you get more optimistic and more dogged in your insistence that we will prevail. So what is giving you hope right now and what are you doing to stay hopeful?

• 1:16:20Speaker 13

  Thank you for that. I do, I believe that is the job of a movement leader, to beat everybody with a hope stick. You are on some hopium, girl, and I love it. I am some hopium, yes, yes, I am. And just even listening to Lisa talk about the clutch kit. I mean, you know, I want to live in a world where we are all carrying around medication abortion in our bags with hot sauce, you know, because that's actually, you know, that's actually also part of change, right? Just to go back to Lisa's, like, first question is, like, how do we do this when we're out of structured, out of, out of power? You know, one way is the, the kind of traditional strategy, um, you know, that, that, that serves us in a, in a working democracy, a functioning democracy, where you build power,

• 1:17:04Speaker 13

  you elect people, you change policy, you advocate, and, you know, you continue to hold people accountable. The other is you change behavior and you change culture. And that if the behavior change is that everybody's going back to school with a clutch kit, or a community with a clutch kit, or come see Auntie Alexis because she's got medication abortion for you, um, and, and you can call her, that is also a way of helping demonstrate why these policies are harmful and rendering them meaningless. You know, the decriminalization strategy that we've seen around, you know, around marijuana, right? For example, I think has been really powerful to kind of give people an understanding of

• 1:17:43Speaker 13

  how, how, um, behavior and culture also shifts, um, uh, uh, policy, even when there are federal policies that still criminalize. So I think we have to be thinking a lot more boldly, a lot more clearly, um, no, like, and speaking directly to, uh, the people who have been harmed, who, who understand, you know, that it's going to be a long road to actually get back to, um, legality in many states, but there are going to be places where, um, people are going to be making different, different choices. And how do we support them? How do we fight for the 18 states and, you know, DC, who have shield laws protecting

• 1:18:23Speaker 13

  providers who are, you know, who are, um, writing prescriptions for medication abortion? What does that mean, the implication for how we see? Work, how do we continue to blanket the United States with clutch kits and, you know, access to contraception and, and emergency contraception so that people can get the care that they need? Like, to me, those are the places where we should be putting some thought leadership into while we are also doing the work that we need to do to fight on the policy side. So I would say my hope is just coming from the brilliance of the entrepreneurship in the space. It is movement entrepreneurship. It is leadership that is, is showing up because they are not going to accept the fact that our future state is dependent upon us flying

• 1:19:05Speaker 13

  people across the country to get abortion. Like, that makes no damn sense to anybody. And so I think, you know, we got to be in it for the long haul. And, and I think that is also part of it. And I love that you all are committed to doing this every year because they had a long-term plan to get to Project 2025. That didn't happen overnight. And if we don't have the same kind of North Star, South Star, depending on your, on where you're situated in the world, you know, then, then we're not actually going to have a focused goal to, to build and organize power and community around. And so I just believe because I know the next gen is not having it.

• 1:19:43Melissa Murray?

  Lisa and Alexis, thank you so much for joining us and sharing your expertise, the work you are doing and reasons to be hopeful. We really appreciate it.

• 1:19:52Speaker 12

  Thank you both so much. Love, Strix scrutiny.

• 1:19:55Melissa Murray?

  And listeners, stay tuned for our next segment, which is a conversation with the authors David Cohen and Carol Joffe about their new book, After Dobbs.

• 1:20:06Melissa Murray?

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• 1:21:31Melissa Murray?

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• 1:21:47Speaker 11

  Right now, the midterms are the biggest story in American politics, but however they go, the Democratic Party is going to have to do some serious soul-searching. Join us, Washington DC, November 5th through 7th, at the Second Annual CrookedCon. It's going to be the Pod Save America hosts and some of the smartest people in politics. We're going to try to answer some big questions, stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to CrookedCon 2026. Head to crookedcon.com to get your tickets now.

• 1:22:36Melissa Murray?

  For this part of the episode, I'm delighted to be joined by David Cohen and Carol Joffe, who are here to talk about their recently published book, After Dobbs: How the Supreme Court Ended Roe But Not Abortion. David is a professor of law at Drexel Klein School of Law, and Carol is a

• 1:22:51Leah Litman?

  is a professor at the University of California, San Francisco. Welcome to the show, David and Carol.

• 1:22:57Speaker 14

  Thanks.

• 1:22:57Speaker 15

  Thank you.

• 1:22:58Leah Litman?

  So David, I guess I will start with you. You describe the book's goal as unearthing the real story of what happened after Dobbs. And you begin the introduction with the observation that by any account, quote, "with the data we have so far, Dobbs has not had the devastating impact on overall national abortion numbers that many predicted," end quote. In fact, you report that in some places abortions have increased. What does your book capture about the post-Dobbs abortion rights movement that other media accounts have been missing?

• 1:23:29Speaker 14

  What I think we've captured is that on the ground, what's happened from abortion providers, supporters and advocates is that they have found ways in a lot of places of the country that we didn't expect, but they've found ways to still provide care, whether that's through moving clinics across state lines, building these robust transportation networks or new delivery models for pills. Abortion providers have come through in astounding ways post-Dobbs.

• 1:23:58Leah Litman?

  Carol, do you want to add anything?

• 1:23:59Speaker 15

  Yes, I would just add that Dobbs' decision was no surprise. Providers knew it was coming and they prepared a long time in advance. And that's what we wanted to capture, how they were preparing. We did not expect to see the numbers rise.

• 1:24:18Leah Litman?

  So I guess I have two follow-up questions to that. And Carol, maybe I will put the first to you, which is, one, is there a risk of overstating the good news? Like, how might you respond to anti-abortion Republicans who seize on the book's assertions to argue that Dobbs wasn't that bad? Or no big deal?

• 1:24:38Speaker 15

  I mean, that's a very reasonable question. And I I think we take pains in the book to say, yes, it is surprising. People who we did not think would get abortions did. However, many, many people have been left out. We've all read about the horrific treatment in hospitals. ProPublica has told us about some deaths. I believe there actually have been more that have not been reported as such. So it is a surprising development, but in no way would David or I claim that, you know, everything's cool.

• 1:25:16Speaker 14

  The reality is, is that people have started traveling so much more. And as much as that still gets people care, that's really disruptive to people's lives. It takes a lot to travel across states, many states, to get an abortion, right? It takes time and money, time off work. You need people to care for your kids. You have to deal with immigration checkpoints. So for a lot of people, yes, they are getting abortions, but it's very disruptive. And let alone the people for whom they're not able to get abortions. We know maternal mortality is up, infant mortality is rate is up, sepsis rates are up. So this is not a good state of affairs. It's just abortion providers have made it much better than we ever thought it would be, given the devastation of Dobbs.

• 1:25:59Leah Litman?

  So that actually tees up to what was going to be my second follow up question, David, so I guess I will put this one to you, which is how much of this story is a story of the incredible commitment and investment and additional costs that abortion providers and healthcare providers have had to endure to overcome the increasingly hostile landscape for reproductive freedom? And how much of this situation that you describe of continued but unstable or additionally costly access to abortion is a story about medication abortion or a precarious situation that might not hold for Ever.

• 1:26:44Speaker 14

  I mean, it's all of the above that, you know, everything that just described is the reality, right? Abortion providers have been doing this long before Dobbs, right? We know before Dobbs, under Roe, abortion was legal everywhere, but inaccessible in a lot of ways for a lot of people because of all the regulations and laws. So abortion providers still had to make it work in that environment. So they've been used to doing this. And now they're just making it work in a very different environment, but they're making it work in a lot of places. Abortion medication is a big part of the story, but it's not the only part of the story. Yes, pills are cheaper and more available than before, but it's also about setting up travel networks. But this all takes time and it takes money. And so, yes, that's the part that, you know, can it continue this way forever into the

• 1:27:28Speaker 14

  future? It's hard to imagine it. So unless there's just a continued outpouring of support and money.

• 1:27:35Speaker 15

  And besides the providers themselves, and by providers, in our book, we're talking not just about clinicians, we're talking about support staff, medical assistants, people who answered the phones, who, by the way, right after Dobbs, were getting hundreds of phone calls that could not possibly be answered. But besides the providers in the clinics, the people working in the abortion funds, especially what has sort of a new occupation, patient navigator, they have worked like crazy. I mean, just incredibly, incredibly

• 1:28:15Speaker 15

  effective. In our book, we tell the story, actually, a doctor in the Midwest told us the story. Patient was scheduled to come. It's the Midwest, it's winter, there's a snowstorm. Within hours, the patient was rescheduled at a clinic in Las Vegas, had a flight, had a hotel. I mean, just, just unbelievable stuff. That is, as David said, is both extremely costly and exhausting.

• 1:28:47Leah Litman?

  So kind of getting at the can this situation hold or how long will it hold for? You finished this book before the election in November 2024. So I would be curious about your thoughts about whether Trump's reelection has affected how you think about the stories in the book or their implications for what comes next or what message we should take away from the book. Maybe Carol, we can start with you.

• 1:29:17Speaker 15

  Well, we actually asked our press to give us two blank pages because we knew we knew we couldn't finish the book without a postscript on the election. So we touch on it and obviously it was very disappointing to everybody in the pro-choice world, including us. Thus far, the Trump administration has not done the worst things and I'll leave it to David to tell.

• 1:29:47Leah Litman?

  I feel like this is oftentimes something we are saying in this podcast about the Supreme Court. The Supreme Court might not have done the worst thing and yet it's still quite bad and you should still be paying attention and be concerned. Sorry, I didn't mean to interrupt you.

• 1:30:00Speaker 15

  But even bracketing the quote disaster scenarios, I mean, certainly some very sobering things have happened. To me, as someone who has studied abortion provision forever, one of the most worrisome things is Trump's announcement that he will not, and his administration, his Department of Justice will not enforce the FACE Act.

• 1:30:25Leah Litman?

  Yeah.

• 1:30:25Speaker 15

  The FACE Act, the freedom of access to clinic entrances. This is what has protected providers from the worst kind of violence since 1994, I believe.

• 1:30:38Speaker 15

  And the announcement that that won't be observed, coupled with Trump's immediately upon taking the presidency, releasing some quite violent and aggressive protesters, anti-abortion protesters who were in jail, was another signal that it is open season on abortion providers.

• 1:30:59Leah Litman?

  Yeah.

• 1:31:00Speaker 15

  So the worst hasn't happened.

• 1:31:01Leah Litman?

  On that point, you know, that like, releasing people who had been violent anti-abortion protesters. One thing we talked about, actually, on our episode about another book, The End of Roe, was the interplay and the overlap between anti-abortion protesters and January 6th insurrectionists. And that many of the individuals who had been involved in the January 6th insurrection had actually been quite regulars outside of abortion clinics as well.

• 1:31:31Speaker 15

  Yes.

• 1:31:31Speaker 14

  And I think, you know, he thought they were all in the same mix. He called it the weaponization of the judiciary, right? This was all in the same thing to Donald Trump, like the January 6th prisoners and the FACE prisoners, all about weaponizing the judiciary against the conservative movement. So he released them, right? It's super concerning. The other two things that we are on high alert for is the Department of Justice implementing the Comstock Act in a way that it hasn't been implemented in over a century, to go after abortion providers in all sorts, you know, whether they're mailing pills or instruments or equipment. And then also the FDA rolling back access to Mifepristone, whether it's taking away

• 1:32:11Speaker 14

  the allowance for mailing Mifepristone or taking away its approval altogether. Those two things haven't happened yet. Providers are fully aware that it might, but they are pursuing, they're going forward anyway, but they certainly know it could happen. You know, the one thing I do take a little heart in is the fact that he has done all sorts of crazy, lawless, unpopular things for the first, you know, half year of his presidency, but he hasn't done these things yet. So is he going to do that very soon in the next few months? Never? I certainly don't know, but people are on alert for that.

• 1:32:51Leah Litman?

  Yeah. So, speaking of next actions, David, in part because of your previous work, I wanted to ask you about how certain statements or predictions the Supreme Court made in Dobbs have held up, in particular, the promise or Brett Kavanaugh's deepest hope that overruling Roe would get the courts out of abortion cases. How do you think that one has held up after Dobbs?

• 1:33:20Speaker 14

  Yeah, as a lot with Coach Kavanaugh, he does not know much what he's talking about. You know, he just threw that into his concurrence to placate the dissenters, I guess, and those of us who are raising alarms about what might happen. Certainly, the courts are not out of the abortion business. They are in it more than ever. I mean, we've got state courts that are involved in so much. We've got federal disputes over federal law and state law. We've got all sorts of issues around the FDA. And then we've got issues around Texas and Louisiana going after an abortion provider in New York. Look, this is not over, and it's partly not over because neither side is going to accept this situation right now, right? The anti-abortion side is furious that abortion numbers have gone up, that pills are everywhere.

• 1:34:05Speaker 14

  The abortion rights and justice movement is furious that people are stuck in states that don't have legal abortion. And so, yes, this is not over.

• 1:34:17Leah Litman?

  And Carol, could I ask you to talk about one particular implication or effect of Dobbs, which has been, to my mind, like the increased criminalization of pregnancy care and miscarriage management? You know, we have seen, for example, some threats, you know, to prosecute women for experiencing miscarriages. So is that another aspect of ways in which the law or courts are still inevitably going to be involved in this space post-Dobbs?

• 1:34:48Speaker 15

  Absolutely. I mean, we know there's been hundreds of arrests of pregnant people, you know, in the recent past. You know, we, I think the media has, the mainstream media, I think, has actually done a good job of telling the American people of what it means to be pregnant after Dobbs. I mean, recently, West Virginia, I mean, there's talk that if you have a miscarriage, you have to call up and tell somebody so they won't prosecute you. At UCSF, where I am a professor, we recently did a project called Care After

• 1:35:27Speaker 15

  Roe, and we asked doctors and nurses, both in, quote, "red states and blue states," tell us how things have changed. And it was chilling. Somebody, a nurse practitioner in Colorado, told me of a woman who flew from Texas. She told the practitioner, "I had a miscarriage. I'm not sure it's actually finished. I'm just confused. I don't dare go to my local OBGYN." So this person got on a plane, flew to Colorado, they did the ultrasound. Yeah, you're fine. So, I mean, this is insane. You know, what should have

• 1:36:11Speaker 15

  been done, should be done at your local hospital, your local doctor's office, now you fly? I mean, it's, and not even for an abortion, just to make sure. And, you know, and I think this story is one of just thousands happening all over this country, where now anybody who's pregnant is potentially a suspect, potentially capable of committing a criminal act in the eyes of a state. So it's horrible.

• 1:36:42Leah Litman?

  So some of what Carol is describing, David, is, to my mind, part of what the book documents is this chaos and confusion, which is so pervasive in the post-Dobbs legal terrain. Patients are unsure whether they can travel, whether they should travel. Providers are unsure if they will be prosecuted and under what circumstances. And the laws are changing and in flux. There has also been a horrifying increase in anti-abortion extremism. You describe that as one of the most prominent effects of the Dobbs decision. So how do you think the legal instability and lawlessness, is that part of the broader strategy of anti-abortion advocates?

• 1:37:25Leah Litman?

  And whether it is or is not, what steps can we take to keep providers and patients safe?

• 1:37:32Speaker 14

  So I think the most important step, because I do think it's part of their strategy, the chaos is the point. I think the most important step is reminding people everywhere that abortion is legal in all the states where it remains legal. Thirty-eight states it remains legal at some point in gestation. And then in the other 12 states, people can get care, whether it's through travel or pills by mail. People need to know that because there are too many people, like the abortion providers we talked to that form the basis of this book, people will call up and say, is abortion legal where I live? Are you doing something illegal? And they're not doing something illegal, the providers. They are providing legal care. And so people need to know that so that they aren't confused.

• 1:38:14Speaker 14

  But one of the things that I think is so great is that providers, they shouldn't have to, but they have become experts in following the law and adjusting almost on moment's notice. Because they have to know if an injunction is in place or not in place, what they can and can't do, and then adjust accordingly. And providers around the country have been doing that to provide the most care they can at moment's notice.

• 1:38:38Speaker 15

  In terms, you know, David said providers have to be up on the law. I mean, in our book, we describe a, you know, a bizarre situation where literally it's not changing only by days, but by hours. Planned Parenthood of Utah in the morning could not provide abortions. By the afternoon, the people who stuck around and waited in the clinic at three o'clock, they could. I mean, it's crazy. In this case, it had a quote, "positive ending" for those who stayed. But, you know, that's what it means to provide abortion in the post-Dobbs era. You, you keep looking at your watch and waiting for a call from your lawyer.

• 1:39:21Leah Litman?

  So I think both of what you're saying was going to tee up my next question, which is, I'm curious to get both of your perspectives on what you observed about how abortion providers understand and talk about the law and how they are engaging with the law in the post-Dobbs world. So Carol, maybe we can start with you on that question.

• 1:39:42Speaker 15

  I mean, you cannot provide abortion in this country even before Dobbs, without being very attuned to what the law is. The, the lawyers are also a hero of, of our story, I believe. You know, the lawyers from ACLU, from the Center for Reproductive Lives, from local, from local lawyers who work with them. I mean, these are people who tell them what they can do and what they can't do. And I think there's cynicism about the law. There's certainly cynicism about state legislatures who pass these laws, knowing nothing about the medicine involved. But thank God for their lawyers.

• 1:40:27Speaker 14

  Yeah, I mean, one of the things that's really poignant is that one of the doctors that we interviewed in Alabama said that her life's training, suddenly she's a felon, right? Not because what she's doing is any different, or her training has fallen by the wayside and now she's not providing safe care, right? She's providing exactly the care she was trained for years for, and suddenly overnight, she's a felon, right? And so that's their relationship with the law, knowing that the things they do are contingent upon the state legislature, state courts, the Supreme Court, most of whom have zero medical training, suddenly deciding.

• 1:41:06Speaker 14

  No longer. Sorry, you can't do it.

• 1:41:08Leah Litman?

  Yeah. So the later chapters of the book raised this question that in some ways was kind of on my mind in the lead up to Dobbs. So I'll say the question and then kind of explain how I related to this and how this almost gave me PTSD about the lead up to Dobbs. So the subsequent chapters asked the question about whether the rage donations that have funded almost all of the post Dobbs work will continue into the future. And the reason why this raised my alarm bells is because in the lead up to Dobbs, I felt like I was hearing a lot from men on the left about how overruling Roe was going to be this gift

• 1:41:50Leah Litman?

  to the Democratic Party and allow them to win elections for eternity because people were going to be so outraged. And I never felt that way, you know, in part because I have a more dour outlook on how this country values women. But I want to hear more about whether you think the reproductive rights movement can sustain the momentum for funding and whether there is any kind of long-term strategy that could enable it to do so. David, I don't know if you want to take this one first?

• 1:42:27Speaker 14

  Yeah, this is the real tricky point, looking into the future, right? Because there was a huge influx of donations and time, right? Both of those together, volunteer time and donations, the year, year and a half after Dobbs, but then we got hit with the election last year, right? And so donations dropped off, abortion funds reported lower amounts, practical support groups. And so there was less money flowing into all the systems that we put in our book that talk about why people are still able to get care. Now, the, the good news is that the abortion numbers that were released in the middle of this year in 2025, reflect that abortion numbers continued to go up in 2024, even

• 1:43:10Speaker 14

  with a drop off in funds. So I don't know if there's some lag there. But I think it's something we're going to monitor because without the money, without the time, all the things we document in the book are precarious because they take an over, you know, it's already costly to run an abortion clinic. It's already costly to have the legal defense systems in place that are needed. And now to do that with 12 states banning abortion and the need for travel, it costs a lot more. So we need that support and that requires everyone contributing.

• 1:43:44Leah Litman?

  Carol?

• 1:43:45Speaker 15

  Well, I would just say that Dobbs did not do for the presidential election, which some people fantasized. On the other hand, it did win some elections in red states. I mean, one of the, I think one of the more confusing, frustrating things to, you know, pro-choice partisans is people in a state, let's say like Missouri, would vote for abortion to be legal and available, and also vote for a senator and a congressperson who, who wanted to ban abortion. So there is an impact on elections. Most of the abortion measures did pass. It did not obviously achieve what people hoped it would achieve.

• 1:44:30Leah Litman?

  Yeah. So the question I wanted to end with is, what's the one thing you hope people take away from your book as these next chapters unfold? And related to that, is there any way our listeners can support the work that clinics providers are doing and that patients need? Carol, do you want to?

• 1:44:53Speaker 15

  Well, this will sound lame. Give money. Vote at every level of the ballot, not just the presidential. Vote for your local city council person. They will decide whether a clinic can be, you know, established in a certain downtown zone. And if you're able, do clinic escorting and help. There's a lot of help that's needed.

• 1:45:18Leah Litman?

  David?

• 1:45:19Speaker 14

  Yeah, I think on top of that, I mean, I think the one thing that I like to say people should take away from this book is that Yes, the Supreme Court matters, but it's not the end all be all of anything. There are people on the ground who are resisting this conservative Supreme Court with their daily actions. They may not be out there making the news because they're providing health care, right? They're too busy just dealing with the patients who are coming in and saying, as one person said to us, fuck the Supreme Court, we're doing it anyway, right? We're just going to keep providing care. Patients are going to get care and we're going to provide it. It's a resistance movement on the ground to this conservative Supreme Court. And I think it's important for people to always be thinking about how to resist this

• 1:46:02Speaker 14

  Supreme Court on the ground. And Carol gave us a bunch of ways, and I think thinking locally in this regard, your local fund, your local practical support group, your local clinics, they need your support.

• 1:46:15Leah Litman?

  Well, that is unfortunately all we have time for today, but wanted to thank Jordan Thomas for their help in preparing this episode, and David Cohen and Carol Joffe for joining to talk about their recently published book, which again is after Dobbs, How the Supreme Court Ended Roe But Not Abortion. Thanks, David and Carol, both for the book and for joining us to talk about it.

• 1:46:38Speaker 14

  Thank you so much. Thank you very much for having us.

• 1:46:41Leah Litman?

  And finally, let's end with our favorite thing. So on the topic of Dobbs-related material, you know, I just want to give another plug for pre-ordering Iren Carmon's book, Unbearable: Five Women and the Perils of Pregnancy in America. Obviously, my list of favorite things includes Taylor Swift's track list for TS12 and the cover art for The Life of a Showgirl. I just cannot wait. Also wanted to plug Ben Platt's cover of Addison Rae's song Diet Pepsi. I live. Melissa made an appearance on Nicole Wallace's podcast, The Best People, which is delightful. This is a belated hello and shout out, but meeting Strikte is in the airports, so hello

• 1:47:25Leah Litman?

  Kyoko, who I met in the Detroit airport when we were about to take our summer vacation. Wanted to highlight my colleague Ellen Katz's paper, short paper entitled Redistricting Texas Now Is Illegal and the U.S. Department of Justice Is the Reason Why. And then finally, this is an odd one, but Laura Loomer's deposition in a case against Bill Maher. Um. This is long, but worth it if you need to go down a very distracting rabbit hole. I, I, I know we're going long, but I really want to give you a flavor. So can you humor me and we can reenact just like a few exchanges?

• 1:48:03Kate Shaw?

  I really, we, we really should have Melissa for this.

• 1:48:06Leah Litman?

  I know.

• 1:48:07Kate Shaw?

  I will do my best.

• 1:48:07Leah Litman?

  Okay. Do you want to be counsel or do you want to be lumer?

• 1:48:11Kate Shaw?

  In the last, I mean, I don't want to be anything in the Arby's exchange. I don't ever want to think about it. How about, uh, I'll be lumer and you be counsel now first.

• 1:48:20Leah Litman?

  Okay, okay. Now be the first amendment warrior you claim to be and admit that you were saying that the vice president of the United States.

• 1:48:28Kate Shaw?

  This is coercion.

• 1:48:28Leah Litman?

  Coward.

• 1:48:29Kate Shaw?

  Not a coward.

• 1:48:30Leah Litman?

  Coward.

• 1:48:31Kate Shaw?

  Not a coward.

• 1:48:32Leah Litman?

  This is of course, very atypical for depositions.

• 1:48:38Kate Shaw?

  Okay.

• 1:48:39Leah Litman?

  Are you still lumer?

• 1:48:40Kate Shaw?

  I'll be lumer in the next one too. Sure. Okay. I have not had many boyfriends, you know, I care more about my work than I do about having a romantic partner. And I waited to find somebody who would accept the fact that I want to be very successful.

• 1:48:51Leah Litman?

  Just for the record, my only question was, did you give that interview?

• 1:48:59Leah Litman?

  And finally, the big one.

• 1:49:00Kate Shaw?

  I'll be counsel.

• 1:49:01Leah Litman?

  You're going to be counsel.

• 1:49:02Kate Shaw?

  Is that okay?

• 1:49:02Leah Litman?

  Okay.

• 1:49:03Kate Shaw?

  Okay. Exhibit 30 is your response to her. Can you read that out loud to me?

• 1:49:09Leah Litman?

  Hey, Marjorie, remember when you destroyed your family so you could have sex with the Zangief cosplayer? Tell me again how you and the Arby's in your pants.

• 1:49:17Kate Shaw?

  Can you explain to me what it means to say to her that the Arby's in her pants?

• 1:49:21Leah Litman?

  Well, Arby's objection, that's her lawyer.

• 1:49:24Kate Shaw?

  Answer the question.

• 1:49:25Leah Litman?

  Arby sells roast beef.

• 1:49:27Kate Shaw?

  Right. And can you tell me what, why you were talking about the Arby's in her pants?

• 1:49:31Leah Litman?

  Well, it's just an expression. I'm saying she literally, it's so ridiculous. I'm saying she literally put Arby's in her pants.

• 1:49:40Kate Shaw?

  You're literally saying she put an Arby's sandwich in her pants. Is that right?

• 1:49:45Leah Litman?

  Yeah, that's correct. That's correct.

• 1:49:48Kate Shaw?

  Why are you laughing?

• 1:49:48Leah Litman?

  Because I just think it's so funny.

• 1:49:50Kate Shaw?

  What is your basis for saying she put Arby's in her pants?

• 1:49:54Leah Litman?

  Again, seen, would recommend our listeners check out the transcript.

• 1:49:59Kate Shaw?

  I think she, I think we cut it off. I think she, she doubles down on yes. I was literally saying sandwich in the pants.

• 1:50:04Leah Litman?

  This continues.

• 1:50:05Kate Shaw?

  Anyway, do read the whole thing for yourself. Um, okay. I love that that brought you joy this week, Leah. I just have a few to add. I was on vacation last week. I read Gary Steingart's new novel Vera or Faith, which is really good and has a constitutional amendment plotline that is fascinating that I'm not gonna like spoil right now, but it's like actually for the lawyers in the crowd, really, really smart and, you know, sort of dystopic. I have previously talked about having late in life discovered Octavia Butler, or actually read Octavia Butler, I knew about her before, but I read Parable of the Sower last summer, and I just read the sequel Parable of the Talents, which is also dystopic and terrifyingly prescient. I read on your and Melissa's recommendation, Bury Our Bones in the Midnight

• 1:50:46Kate Shaw?

  Soil, which was fantastic. Listen to season two of The Retrievals, which I highly recommend, about pain during Caesarian sections. And then an academic article that is up on SSRN now, Josh Chafetz's The Chadha Presidency, about an incredibly damaging Supreme Court case that is responsible for a lot of our current predicament, which is INS versus Chata. And finally, David Daly had a great opinion piece in the New York Times about how we should all be blaming one person in the main for the gerrymandering insanity that we are now in, and that person is John G. Roberts. All right, a little housekeeping before we go. The new season of Shadow Kingdom is almost here. Shadow Kingdom: Coal Survivor is the unbelievable true story of the deadly

• 1:51:29Kate Shaw?

  power struggle for control of the United Mine Workers of America, and the son who took on a dangerous union boss to avenge his family's murder. At the center is Tony Boyle, the union president so powerful and corrupt that he would stop at nothing to keep control. And when a rival candidate threatened that, that man and his family ended up dead. Host Niccolo Minone investigates the rise and fall of a union built to protect workers and the moment it became their greatest threat. With never-before-heard tapes, exclusive reporting, and interviews with those who lived it, including Chip Yablonski, the surviving son of Tony's murdered rival, this season tells the story of a movement that turned deadly. Listen to the trailer now on the Shadow Kingdom feed and tune into the premiere of Shadow Kingdom on August 25th, wherever you get your podcasts. Friends of the Pod subscribers can listen to the full season of Shadow Kingdom starting

• 1:52:13Kate Shaw?

  on August 25th. Join Friends of the Pod at crooked.com/friends or subscribe through the Shadow Kingdom Apple feed.

• 1:52:22Leah Litman?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Littman, Melissa Murray, and Cade Shaw, produced and edited by Malavye Brawal. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglan and Charlotte Landis. Our music is by Eddie Cooper. Production support comes from Madeline Herringer, Katie Long, and Ari Schwartz. Matt Jagroth is our head of production, and thanks to our digital team, Ben Heathcote and Joe Matusky. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. You can find us at youtube.com/strikscrutinypodcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast apps. You never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 1:53:21Speaker 11

  Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is going to have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the Second Annual Crooked Con. It's going to be the positive America hosts and some of the smartest people in politics. We're going to try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to Crooked Con 2026. Head to crookedcon.com to get your tickets now.

• 1:54:02Speaker 16

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