Reproductive Rights at a Crossroads

Reproductive Rights at a Crossroads

Insight Podcast

Episode Guests

  • Parker_Kimberly Kimberly A. Parker

    Partner

    Vice Chair, Litigation/Controversy Department

    +1 202 663 6987
  • Krasnoff_Helene

    Helene Krasnoff

    Vice President of Public Policy Litigation & Law, Planned Parenthood

  • Dermish_Amna

    Dr. Amna Dermish

    Regional Medical Director, Planned Parenthood of Greater Texas

In This Podcast Episode

In the Public Interest welcomes Partner Kim Parker, who speaks with Helene Krasnoff, the Vice President of Public Policy Litigation & Law at Planned Parenthood, and Dr. Amna Dermish from Planned Parenthood of Greater Texas. Planned Parenthood is a nonprofit organization that provides reproductive healthcare services in the United States and around the world. The organization has also been a key player in challenging laws that restrict abortion rights and access in the United States.

Their discussion focuses on two recent US Supreme Court cases with major implications for reproductive rights: Whole Woman’s Health v. Jackson, a case that challenges a Texas law that bans abortion once cardiac activity is detectable in the pregnancy, typically at 6 weeks, and Dobbs v. Jackson Women’s Health Organization, a case that involves a Mississippi law that bans abortions after 15 weeks, with Mississippi also asking the Court to overturn longstanding precedents like Roe vs. Wade, which would then potentially allow states to ban all abortions.

Parker is the vice chair of WilmerHale’s Litigation/Controversy Department and co-chair of the firm’s Pro Bono and Community Service Committee. Parker has represented Planned Parenthood and other reproductive health providers in numerous legal challenges over the past 20 years. In the Jackson Women’s Health Organization case, Parker and a team of WilmerHale lawyers helped several leading medical organizations file a brief in support of Jackson Women’s Health, arguing that access to abortion is a critical part of reproductive healthcare.

At Planned Parenthood Federation of America (PPFA), Krasnoff leads a team of attorneys who challenge attempts to restrict access to reproductive health care, advise Planned Parenthood affiliates around the country about the legal issues raised by such attempts, and assist with PPFA’s efforts to influence state and federal legislation in order to improve access to reproductive health services. She has been with PPFA since 2000 and has been in a lead counsel, co-counsel, or supervisory position in dozens of challenges at every level of the state and federal courts to laws and policies that limit the availability of reproductive health care services. She has also worked with members and staff on Capitol Hill on many pieces of legislation, including the Affordable Care Act.

Dr. Dermish is a board certified OB/GYN with fellowship training in Complex Family Planning. She received her medical degree from the University of Colorado, followed by residency training in Obstetrics and Gynecology at Pennsylvania Hospital in Philadelphia and fellowship training at the University of Utah, where she also completed a master's degree in Clinical Investigation. Dr. Dermish is currently the Regional Medical Director for Planned Parenthood of Greater Texas where she also provides abortion care and oversees their transgender healthcare services, including gender affirming hormone therapy. Her clinical and research interests are in addressing barriers to accessing reproductive and sexual healthcare.

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    Speakers: John Walsh, Felicia Ellsworth, Kim Parker, Dr. Amna Dermish and Helene Krasnoff

    Walsh: In this episode, we welcome Helene Krasnoff, the Vice President of Public Policy Litigation & Law at Planned Parenthood and Dr. Amna Dermish from Planned Parenthood of Greater Texas. 

    Ellsworth: Planned Parenthood is a nonprofit organization that provides reproductive healthcare services in the United States and around the world. The organization has also been a key player in challenging laws that restrict abortion rights and access in the United States. Today, we’ll be focusing on two recent Supreme Court cases with major implications for reproductive rights: Whole Woman’s Health v. Jackson, a case that challenges a Texas law that bans abortion once cardiac activity is detectable in the pregnancy, typically at 6 weeks, and Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that bans abortions after 15 weeks, but in which Mississippi also asks the Court to overturn longstanding precedents like Roe vs. Wade, which would then potentially allow states to ban all abortions. 

    Walsh: To help lead today’s discussion, we are also joined by WilmerHale partner, Kim Parker, who is the Vice Chair of the firm’s Litigation and Controversy Department, as well as the Co-Chair of the firm’s Pro Bono and Community Service Committee. Kim has represented Planned Parenthood and other reproductive health providers in numerous legal challenges over the past twenty years. In the Jackson Women’s Health Organization case, Kim and a team of WilmerHale lawyers helped several leading medical organizations file a brief in support of Jackson Women’s Health, arguing that access to abortion is a critical part of reproductive health care. With that, we’ll turn it over to Kim.

    Parker: Thank you, Helene and Dr. Dermish, for joining us on this episode of In the Public Interest to speak on this incredibly important topic. Before we really dive into the legal issues though, I think it's important to understand what's really at stake in these cases. And that is why access to safe and legal abortions is so critical to so many individuals and their families. So, let me just start by asking you, Dr. Dermish, what brought you to this work? 

    Dr. Dermish: Thank you, Kim. My interest in doing abortion care and providing abortion care is really rooted in justice. As an OB/GYN, I understand the impact of pregnancy on a person’s life. The act of being pregnant, the process of delivering and understanding what it means to parent have all really informed my understanding of how important abortion care is. Having the ability to choose when and how to become a parent is such a vital part of our lives as human beings, and I really have had the privilege throughout my medical career of being able to be with people during these times and in these spaces, and to really understand how the right to self-determination really determines how the rest of their life is going to unfold. And so, for me, it's a real privilege to be able to help people in these situations and to allow them to choose when and how they're going to parent.

    Parker: Thanks, and that's something that, I think, is really important to keep in mind. We can get very involved in the legal specifics of these cases, but to really remember that there are real people. We're going to talk about that more today, and I appreciate your both being here. Helene, you've been on the frontlines, along with Planned Parenthood’s litigators, for so many years in the legal aspects to securing this care for your patients, and now is probably one of the most difficult and challenging times that you have faced. The fact that the Supreme Court is hearing two abortion cases that may entirely upend access to safe and legal abortions, a right that individuals and families have relied on for more than 50 years. I don't think it's an accident, so let's talk about what brought us to this moment. I mean, how did we get here, Helene? 

    Krasnoff: Thanks for having me, Kim, and I think that is a really important question, and I think you are right, it is no accident that we are here today. This is the planned result of more than a decade long project to remake both the state governments and the federal judiciary. I think we really started to see things change after the 2010 elections when we saw newly composed state legislatures push more and more abortion restrictions. Some, although, not most of those restrictions, were bans on abortion. I think this is going to be important for most of what we're going to talk about. The reason they didn't push those is because a core principle of Roe vs. Wade, which is the case that established the right to abortion in 1973, which the court reaffirmed in Planned Parenthood vs. Casey in 1992 is that prior to viability, the ability of the fetus to live on its own outside of the woman, it is the patient’s right to decide whether or not to terminate the pregnancy. That is the core component of that case, and early abortion bans violate that component. I think it's worth noting that in 2013 that both North Dakota and Arkansas did enact early abortion bans, but not surprisingly, those were struck down by the courts for violating this principle of Roe. And, in 2016, the Supreme Court refused to review those decisions. So, to put a fine point on that, they tried to ban abortion, respectively at six and 12 weeks. The court said, nope, that's an unlawful pre-viability abortion ban and the Supreme Court let those opinions lie. And now, there is a new court to respond to the work that the state legislators and Mitch McConnell and President Trump did to, basically, tee up the exact moment that we're in. 

    Parker: So, what I'm hearing you say is that a lot of groundwork has been laid over the past several decades to bring us to this point. And so, let's talk about these two cases, and just get on the table really what is at stake in each of them. In 2018, as you said, Helene, Mississippi passed a law banning abortions after 15 weeks, and that is the law being challenged in Dobbs vs. Jackson Women’s Health Organization. Now, the Supreme Court heard oral argument in this case on December 1st. And so, Helene, can you just give us an overview of the legal issues in that case before we turn to the Texas case? 

    Krasnoff: So, like you said, Mississippi’s ban is an abortion ban. It bans abortion beginning at 15 weeks of pregnancy. It's a ban, like all other courts before it have found, violate that core principle of Roe vs. Wade that states can't ban pre-viability abortion. Viability generally occurs around 24 weeks. So, just to put a fine point on that, 15 weeks is 9 weeks before that, more than two months before viability. I think it’s interesting here when you think about the legal issues is that when Mississippi first petitioned for review, and at that time, Justice Ginsburg was alive when the petition was filed. Mississippi told the court it didn't need to overrule Roe vs. Wade or Planned Parenthood vs. Casey in order to uphold the 15 week ban. It told the court it could just find that the 15 week ban is not an undue burden because people have adequate access to abortion up to 15 weeks. But once Justice Barrett joined the court and the court decided to hear the case, Mississippi has changed its tune entirely and has now asked the court to outright overrule Roe vs. Casey. That is, to overrule 50 years of precedent and hold that the Constitution's guarantee of liberty does not protect the decision whether or not to terminate a pregnancy, so the issues before the Court are, again, whether this core component of Roe, that I get to decide prior to viability, is up for grabs or, even worse, whether the Constitution doesn't protect that right at all. 

    Parker: So potentially, both Roe and Casey, which both use a similar framework in terms of banning laws or, or prohibiting laws, that would ban pre-viability abortion. Both of those could be overturned in this Mississippi case. 

    Krasnoff: In fact, they have, Mississippi has asked the court to overrule on both. 

    Parker: OK, and then let's talk about the Texas law. Last year, Texas passed a law known as SB8, which bans abortion after cardiac activity is detectable, which, as I understand it, is far earlier than even 15 weeks. We're talking about effectively a ban, typically at around six weeks. This law is being challenged in the case called Whole Woman's Health v. Jackson. The law is sometimes talked about as a bounty law, because it allows anyone anywhere to sue abortion providers or anyone who assists a patient in obtaining an abortion after cardiac activity is detectable, and the law went into effect on September 1st, 2021. Can you, Helene, give us a brief overview of what the key issues are that the Supreme Court is considering in this Texas case?

    Krasnoff: Just to keep saying the same thing over and over again, abortion pre-viability is unconstitutional under 50 years of precedent. So, Texas tried something new. They said, oh look, all these other six week bans, they've been held unconstitutional. What we're going to do is we're going to try and insulate our law from court review at all, because if it can be reviewed by a court, it's going to be struck down. So, like you said, the Texas law is actually different from every other ban. What Texas has done is to say that no state actor is authorized to do anything to enforce its ban. The law tries to explicitly disavow public enforcement. Instead, this is the bounty hunting, it says that any person in the world can bring a lawsuit in Texas State court against anyone who provides an abortion in violation of the ban or who helped someone get an abortion. It also has liability, not only if you provide the abortion, but if you help someone get the abortion, clinic staff, someone who gives you a ride or help you pay for your abortion, and if you win, you get a minimum, there is no maximum of the $10,000 bounty per abortion, and you get an injunction that the provider has to stop providing abortions. And the law has all sorts of other provisions to stack the system against abortion providers, including where you can sue, the defenses you can assert, and how you might have to pay for the other side's attorney’s fees, all as a system to force providers to stop providing abortion because doing so would be so risky and ruinous, that they can't go forward, and in fact, that is what has happened and what the Supreme Court, both on September 1st, when it refused to block the law when it took effect and again in its opinion in December did. It allowed the bounty hunting scheme to stay, such that abortions past cardiac activity in Texas have not been available since September 1st.

    Parker: Dr. Dermish, what was the situation on the ground in Texas even before this law?  As I understand it, there were a number of barriers to access to abortion already, as a result of a number of other state laws, some of which had been challenged in the Supreme Court and upheld, and so, can you just give us a feel for what was happening even before SB8?

    Dr. Dermish: So, yeah, you're completely correct in that prior to SB8, there were innumerable bans that existed that prevented or delayed people’s ability to get an abortion. And, you know, we could honestly do a whole other podcast on those because there are so many to go through. So, I'm going to focus on some of the more high-impact ones. We did have a gestational age limit of 21 weeks and six days. We have a 24 hour waiting period that is enacted so, and that 24 hour waiting period requires at least two visits to the health center, so a person is required to come from an in-person visit and evaluation with a physician, and then must wait at least 24 hours until they're able to have an abortion. On top of that, that first evaluation has to be with the same physician who's going to be doing their abortion. So, for example, if a patient comes to see me and can only come back to the clinic on a day when I'm not going to be there, but there's going to be another physician there, well, that patient now has to go and see that other physician for another evaluation, and then start that 24 hour clock all over again. And that, in and of itself, is an enormous barrier to our patients. There are regulations around parental consent for minors who are seeking abortion care under the age of 18. There's regulations about having to show the patient the ultrasound, even if they don't want to see it. We have to play the heartbeat, even if they don't want to hear it. We're forced to provide them with medically inaccurate information. There's innumerable reporting requirements that create an enormous burden on our health center staff and so, cumulatively over the last decade, those laws have created an environment where it is incredibly difficult for someone to access an abortion, even with the 21 week, before we had the six week limit, that we are currently dealing with.

    Parker: So, since the SB8 law has been in effect since September, what has been the impact on the ground for your patients?

    Dr. Dermish: It's been devastating. I think, you know, every day I come into the health center knowing that there are people who I'm going to see today who I have the capacity, the skills, and the training to help. But I will not be able to provide them with the health care that they need because of this law, and so, I think, for myself and our staff, it's it's hard. It's hard to come into work every day knowing that you're going to be inflicting trauma upon people that you would normally be able to help, that you went into medicine to be able to help. For our patients, it's, I walk into a room now and there is just this immediate tension of knowing that in a minute or two I’m going to do their ultrasound and their life is at a fork, and they may be able to access an abortion, or they may be forced to look at potentially continuing the pregnancy against their will, or trying to find a way to get to another state in the middle of a pandemic at great personal cost to still access an abortion, which is still their constitutional right. It's a lot of emotion, you know, every every day, having to tell somebody that I'm not able to provide them the care that they need is devastating for me and for the patient. I've had patients just curl up into a ball and cry and say, can you hold my hand?

    Parker: Can you give our listeners a sense, Dr. Dermish, of just, from a medical perspective, how early six weeks is? How, I mean, do women generally know they are pregnant by six weeks? What types of patients may not know? Just give us a feel for that.

    Dr. Dermish: Six weeks is very, very early. The Governor of Texas, Greg Abbott, said in a press conference that “women have six weeks to figure it out.” Which strikes me as a willfully ignorant statement that it is not, they do not have six weeks, so, best case scenario, assuming somebody has a perfectly predictable 28 day cycle and realizes on day 29 that they missed their period and takes a pregnancy test, best case scenario that person has about a week and a half to access an abortion and, we know that that's not the reality for a lot of people. There are estimates of over 30% of people have irregular cycles, meaning they don't have periods that they can predict every month. And so, if you don't know if you're going to get your period every month, you might be used to missing cycles. And so, you may not realize that you're pregnant until you're well past the six week range, and then there's also life. I mean, my patients are human beings. We're in the middle of a pandemic. We've got a lot going on. And so, this this idea, this expectation, that every person, every working mother, with three children, who she's intermittently having to homeschool, is going to realize on day 30 that she didn't have a period this month is just outrageous. It's an outrageous expectation, and so a lot of these laws such as SB8, they just deny the humanity of the people that we see, and that's one of the most devastating aspects of it. And again, it also assumes that when you get that positive pregnancy test, that you know exactly what you're going to do, and a lot of my patients aren't really sure. The decision about whether or not to continue with pregnancy is dependent on a lot of factors. Sometimes you see that test and you know exactly what you're going to do. You're going to continue that pregnancy. Sometimes you know immediately that this is not the right time to be pregnant, but again, life is full of gray zones. Am I going to be able to finish school? What's my job’s maternity leave? Are my kids healthy right now is you know?  Do I have to worry about care of my parents? What's my relationship with my partner like, right now?  Do I have space for a child in my life or another child? Can I give them the life that I want to give them?  Can I be the parent that I want to be? And to expect that people can make that decision in less than a week is just absurd.

    Parker: I think that's something that that people just often fail to really appreciate. The six week time period and the expectation it puts on patients and their families to really make a difficult decision. Dr. Dermish, you mentioned, you know, alternatives. When you see a patient and you know you cannot help and what, what do those patients do? Texas is the second most populous state in the country. It's also a vast state, and so what are you seeing in terms of patients leaving the state? What alternatives really do they have since abortions after six weeks are not being performed in Texas?   

    Dr. Dermish: At baseline, I feel like in those of us in the reproductive rights movements have said this for years, that people with means will always have access, and we're certainly seeing that in this case. So, for some of my patients, I might give them the news that we're not able to see them and they're like, OK, that's fine. I have my best friend lives in New York, I'm going to fly to New York and see her, or I have family in another state and they can make it, but for the vast majority of the people that I see, and we know that abortion bans and unintended pregnancies disproportionately affect people of low income and people of color, under or uninsured people, and these are the ones that are struggling the most to make it out of state. So, we have conversations with them about, are you open to flying, can you get on a plane to go somewhere?  Are you only able to drive?  Do you have a reliable vehicle that can get you out of state? I'm in Central Texas in Austin, the closest clinic to us right now that can go beyond six weeks is in Oklahoma City. It's a six and a half hour drive, one way. So do you have a car that's able to drive you 13 hours to access basic health care?  And then we try and figure it out, you know, we're fortunate currently that people have been donating to abortion funds and organizations that help people with travel, but I live in fear of the day that people forget what's happening in Texas or these laws spread to so many other states that there's just not enough funds to help the people that really need them, because right now those are our lifeline for our patients, to be able to give them gas money, hotel fare, bus fare, a plane ticket, but this is not, I think for a lot of people who are listening to this think that you can just hop on a plane to LA. It's a two hour flight from Austin. It's not that simple. A lot of my patients have never been on a plane before. Most of my patients are mothers. How are they supposed to leave their kids? Sometimes I've had patients tell me, I might lose my job just for taking the afternoon off for this visit. So, what does it look like to have to travel to another state for two days? It's really complicated.

    Parker: Yes, and I think that's one of the challenges is just really getting these true life stories out there. Helene, we worked, our firm, WilmerHale, helped Planned Parenthood file a brief in the Supreme Court in the Texas case, which included dozens of heartbreaking stories, like the ones Dr. Dermish was just laying out for us from the patients and provider perspective. Can you share some of those stories with us?

    Krasnoff: Sure. I think that we really wanted to show the court, but also, you know, the public as well, what this really meant. And so, we traveled to health centers in Dallas, and in Houston, in Tulsa, and in Oklahoma City. And we sat. And when patients and staff would talk to us, we tried to gather their stories, and WilmerHale helped us present this in the Justice Department’s case to the Supreme Court, and a lot of these are very similar to the stories that Dr. Dermish has already referenced and I, obviously, don't have time to read the whole brief, but if I could just share two of the stories of the lucky patients, the ones who actually made it to Oklahoma. So, one patient was in her early 40s. She has five children and she explained that now that her youngest is a teenager, she's finally been able to focus on building her own career in education. And, actually, her husband couldn't take enough time off from work to drive her to Oklahoma, so she flew one way to Oklahoma. But, as Dr. Dermish said, she was a patient who had actually never flown before. It was her first flight and she talked about how scary that was. And to get home, her husband woke up at 4:00 in the morning, worked an early shift, drove to Oklahoma, immediately drove back to Texas after the appointment, so that he could be at work the next morning. Another patient, in her mid-30’s, has seven children and recently lost her job after she got COVID. She first looked for an appointment in Mississippi that was an easier travel for her, but they were booking nine weeks out to the next appointment, so she got up at 4:00 in the morning, drove six hours to Oklahoma. She had to split up her children among various caretakers. She, not surprisingly, had no one who would take all seven of her children. She said that hotel, food and gas took away over half of what she made in the month, and I personally was struck by what she said to my colleague, who was interviewing her at the health center. She simply looked at her and commented that, without the Texas abortion ban, I could be done right now and making dinner for my children. Just to put a fine point on that, at the end of the day, the result was the same for her except that she lost all of her income, she wasn't able to care for her children and she had to go sort of through all of this and again, sort of, she's the lucky ones, right?  Some aren't so lucky. So one patient from East Texas with five children, the youngest of which was actually an infant, she had driven two hours to our health center. She had her children waiting in the car, and she actually was less than six weeks pregnant, and Dr. Dermish can speak to this as well, but the ultrasound revealed that she already did have cardiac activity, and so, she was sent away less than six weeks, five children in the car, already haven driven two hours one way to the health center. And the other thing which Dr. Dermish mentioned, and obviously can speak to better than I can, and I think that is missed is the impact on the staff, right?  These are people who went into health care to help people. And they're being actively prevented by the state from doing their job. One of the staff in Houston told us how she cried with her very first patient after SB8 was passed. And so, again, I'm so glad Dr. Dermish agreed to join us today. Because in the legal issues it's, you know, very abstract, and so I think it's really important that we tell the stories of who this impacts on the ground, and really the disastrous effect it's been having for four months now.

    Dr. Dermish: And, I think, you know, to piggyback on what you're saying, Helene, I think, to our patients trying to explain this law to them is, I mean, it's not that we didn't realize that this law was, to be honest, completely inane. There's no reasonable justification that the cutoff of cardiac activity is arbitrary, just like a 15 week cut off is arbitrary, and to try and explain that to our patients is just, you know, I had one patient who had cardiac activity 24 hours after her first visit and just looked at me and said but there wasn't any cardiac activity yesterday. How can there be this today? And yesterday I was able to have an abortion. Why couldn't you just do my abortion yesterday? Why did you make me come back today? Why did you have to repeat the ultrasound and look again for cardiac activity and, what's so different now that I could have an abortion yesterday and I can't have an abortion today? And, I mean, those are really good questions that I can't answer because our legislators here in Texas have decided that you shouldn't have access to this constitutional right. I mean, I think there's no other way to explain it to them, but there's a lot of tears in the clinic these days.

    Parker: Yes, and I think that's really important because while the very, very, very, vast, vast number of abortions in this country take place early in pregnancy, six weeks is so early, and six weeks doesn't have any medical justification, and so, you're really imposing an arbitrary, very arbitrary, line in a huge state that affects so many, so many patients. Helene, turning to the Supreme Court, and where we are. On December 10th, the court issued a decision holding that abortion providers could challenge the law, but only as to a narrow, tiny set of defendants, specifically state licensing officials. The law is still in effect. The ban is still in effect. So, what is the status of the challenges? Kind of where are we in the courts on Texas?

    Krasnoff: So I think what's most important about what the court did on December 10th is that, although it did let this sliver of the case go forward, as you mentioned, it actually rejected the most significant part of the case that actually would have provided relief from the bounty hunting lawsuits. The court said we can't sue the clerks who take the SB8 filings. We can't sue the state court judges who decide the SB8 cases, and we can't sue the Texas Attorney General. Relief against these people would have actually stopped the filing of the cases against providers. The court instead sent the case back to the Fifth Circuit.

    Kim Parker: I’ve heard some say, why don't doctors just defy this law? And why aren't the clinics just going forward anyway?  And, I think, you mentioned, Helene, that there's really unlimited liability here. You know it's a minimum of $10,000, but there's no maximum. But, Dr. Dermish, can you talk a little bit about, really, the risk to, not only providers, but clinic staff and others. 

    Dr. Dermish: Yeah, when you think about what it means to act in violation of this law, it's not simply a decision that I make in a vacuum to help an individual patient. There are so many layers to it, part because of the way the law is written so that for me to provide an abortion to a patient, it's not just me, who's part of the process. There's a staff person who checks them in, the person who rooms them, the nurse who helps provide the medication, pulls the chart, if they're having a procedure, it's the person who's assisting me. All of those people are vulnerable to litigation if we're found to be in violation of the law, and that impacts all of their livelihoods because they're individually responsible. And that's a huge ask of the people who work in a health center. So again, that decision can't just be made at an individual level, but really has to take into account the welfare of all the people working in the health center. And then, there's really no limit to the amount of money that we can be sued for.

    Parker: Let's talk about the Mississippi case, Dobbs vs. Jackson Women’s Health Organization. This is the case that, as you said, Helene, asked the court to overturn longstanding precedents like Roe vs. Wade and Planned Parenthood vs. Casey. What are the likely outcomes in that case? 

    Krasnoff: So, of course, the court could stick with 50 years of precedent and strike down the Mississippi ban. But, of course, there would be no reason to have taken the case if that's what the court was going to do. And it certainly did not seem at the oral arguments on December 1st, like that's what the court wanted to do, or at least five members of the court, so I think there really only are two outcomes. So, one, the court takes Mississippi's invitation and it overrules Roe and Casey, 49 years of precedent that, you know, at this point, generations of Americans have relied on would be gone overnight. This does not mean that abortion is banned nationwide. It means that states are free to ban abortion and not just at 15 weeks, but to ban it outright if there is no constitutional right to abortion. Or two, the court could refuse to come right out and say that is overruling Roe and Casey, but still say that Mississippi can ban abortion at 15 weeks, but I do want to be very clear about that. That is not a middle ground. It is not a compromise. For 49 years, the Supreme Court has never wavered from the principle that prior to viability, it is the patient’s choice whether to terminate a pregnancy. And 15 weeks is 9 weeks before viability. In fact, in 2019, Chief Justice Roberts, when he cast the deciding vote in the June medical case, described this the ability to choose abortion prior to viability as the most central component of Roe, so it would be no compromise to basically take away still a 49 year promise that has been made to Americans. Even if the court doesn't say it's overruling Roe and Casey, there is no way to allow states to ban abortion at 15 weeks and not have violated what, again, Chief Justice Roberts called the central principle. I think actually, the words were the most central principle of Roe

    Parker: I was struck by what both you and Dr. Dermish described as the reality of patients traveling to other states from Texas. If Roe and Casey are overturned, would there even be accessible abortion in Mississippi, in Oklahoma?  Dr. Dermish, what is the reality of what is likely to happen if you have a situation like Texas in other states? 

    Dr. Dermish: Yeah, I mean it would be devastating because, you're correct, in states like Oklahoma, Louisiana, Mississippi, most of the southeast is probably likely to ban abortion, so you're left with, I think, the estimate right now was 26 states would almost immediately ban abortion if Roe vs. Wade was overturned. And, so, it would leave a situation where people are having to travel further to access abortion care. We're going to see longer wait times in the states where abortion care is accessible and, what that actually means for people who become pregnant is that abortion becomes completely inaccessible. I have patients who can barely make it to Oklahoma City right now for an abortion so, if you're asking them to travel to New Mexico or Colorado or California or New York, it becomes completely impossible. And with a lot of these laws, there are little to no exceptions, and so we have people being forced to continue pregnancies that might otherwise be harmful to their health. We're living, it's a sad truth that the states that are most likely to ban abortion, are also the least likely to provide care to pregnant women and to postpartum moms and to infants. So, the interest in being quote unquote pro-life ends up in the womb. It doesn't even start in the womb because they don't have access to prenatal care. These are the states with the highest maternal mortality rates, with the highest infant death rates, and so it's not like you deny somebody access to an abortion and they go on to have a healthy happy pregnancy and a wonderful life afterwards. These people are oftentimes struggling to get through their pregnancies, they're likely to have difficult pregnancies, and they're more likely to experience challenges afterwards, and there's good research to support that that's the truth. So, we need to continue to respect people's ability to decide when and how they're going to be pregnant, and in a situation where Roe vs. Wade is overturned, it's going to be devastating for women in America, absolutely devastating. 

    Parker: As a final question really, to both of you, are there, are certain populations that will be especially affected? You mentioned, Dr. Dermish, that patients with means will be able to travel, even if large numbers of states ban abortions, but there are certain more vulnerable patient populations that, I imagine, will be especially affected. So wanted to just make sure we had a good understanding of that. Helene?

    Krasnoff: I think that, you know, like so many other policies, abortion restrictions already fall most heavily on low income patients, on communities of color, of individuals who live in rural areas, and that will be the same for abortion bans. Although we've been talking a lot about the importance that this right, that has been central to our lives for basically, for almost all of us on the phone, almost all of our lives. At the same time, it's actually a right today, in name only, for too many people.

    Parker: Thank you, Helene, that’s a really important point. And thank you, Dr. Dermish. This has been a sobering conversation for those of us who have worked in this field for so many years. I don't think we've ever felt about the danger and fear that we do now, seeing what our colleagues in Texas are facing, and others are likely to face. But thank you for joining us today and a lot of important food for thought.

    Dr. Dermish: Thank you.

    Walsh: Yes, thank you, everyone, for this important conversation on the current legal challenges to reproductive rights in America and the real-world impacts of these cases. 

    Ellsworth: Since we recorded, there have been additional developments regarding the Texas law known as SB8. After the US Supreme Court sent the case back to the lower court in December, the Fifth Circuit ruled that the Texas Supreme Court needed to decide if state professional licensing board members have the power to enforce the law. The Texas Supreme Court ruled on March 11 that state licensing officials do not have the power to enforce the law. As a result, Whole Woman’s Health cannot proceed against the Texas Medical Board and other similar state licensing officials. As they were the only remaining defendants in the case, the challenge will likely now be dismissed, and this will likely leave Texas’ six-week ban in effect for the foreseeable future.

    Walsh: That’s it for this episode. To our listeners, thank you so much for tuning in to In the Public Interest, and we hope you’ll join us next time. If you enjoyed this podcast and found it interesting, please take a minute to share it with a friend and subscribe, rate and review us wherever you get your podcasts. Until next time…bye.

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