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Dr. Melissa Harris-Perry: It's The Takeaway. I'm Melissa Harris-Perry.

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Dr. Melissa Harris-Perry: In June of last year, the Supreme Court decided the case of Dobbs v. Jackson Women's Health, holding that the Constitution does not confer a right to abortion and thereby giving to states the authority to regulate abortion. In the eight months following the Dobbs decision, the anti-abortion movement has been relentless using multiple strategies to curtail the right and access to abortion in state legislatures and courts across the country.

A federal court in Texas is currently deliberating about a case that represents a new phase in anti-abortion strategy with a unique target, the Food and Drug Administration. In November, the conservative activist group, Alliance Defending Freedom, filed suit on behalf of four anti-abortion medical associations and doctors. They're alleging that the FDA ignored science and harmful side effects when it approved the drug mifepristone. This is one of the two drugs taken to induce medical abortion.

The FDA approved mifepristone back in 2000. Since then, medication abortions have become the most common method of ending pregnancy in the country. The available evidence overwhelmingly shows that medical abortions up to 10 weeks of pregnancy are both effective and safe. The Alliance Defending Freedom filed the case in a federal court in Texas. The presiding judge was appointed by former President Trump. Joining me now is Caroline Kitchener, national political reporter covering abortion at The Washington Post. Caroline, welcome back to The Takeaway.

Caroline Kitchener: Thank you so much for having me.

Dr. Melissa Harris-Perry: Let's just stick into the case a bit. Tell me about the Alliance Defending Freedom.

Caroline Kitchener: The Alliance Defending Freedom is a conservative advocacy group. They take on these kinds of cases on abortion, on gay rights, on just a variety of social issues. As we've seen in this case, the strategy really seems to be to target courts where they know that they're going to get a very conservative judge, a Trump-appointed judge, and that's what's happening here.

Dr. Melissa Harris-Perry: Tell me a little bit about this judge. This is Judge Matthew Kacsmaryk?

Caroline Kitchener: Judge Matthew Kacsmaryk. Yes, he was appointed by President Trump and he took the federal bench in 2019. Since then, he's really made a name for himself on these conservative cases. He is really well-known, I would say, across the country as somebody who is a very strict textualist on the Constitution and who personally holds a lot of very conservative views.

His confirmation hearing in the Senate really stood out just one after the other, after the other. The Democratic senators confronted him with these quotes, statements that he had made in the past, particularly about gay marriage. He has called being gay, a delusion. He has said that things like gay marriage will put the country on a path to lawlessness. Now, that was all when he was an advocate.

Notably, he is the first federal judge to go directly from a conservative religious freedom organization directly to the federal bench. Those were statements that he made in that advocacy role. Understandably, when he was being confirmed, a lot of abortion rights groups, just liberal advocacy groups across the board raised a lot of concerns about the things that he had said and the way that he had said them. They're just quite atypical for a judge on the federal bench.

Dr. Melissa Harris-Perry: I'm always trying to think about this kind of question from multiple ideological or political positions. I wouldn't want to suggest that someone who, in their work as an advocate, particularly as an aggressive advocate in a way that our legal system is set up. If one, for example, was a public defender and aggressively advocated and defended on behalf of one's client, we certainly saw how that kind of legal advocacy was used against, for example, Ketanji Brown Jackson during her Supreme Court nomination hearings. Help me to understand if there are aspects of his actual legal or judicial reasoning that are also likely to give pause in the case of understanding how he may decide in this case.

Caroline Kitchener: That's a great point. I'm so glad you made it. His judicial track record so far, it really keeps conservative lawyers coming back to his district. Most recently, he made a ruling in a case about birth control. This was in December. The lawyer on the case was Jonathan Mitchell, who was the architect of the Texas abortion ban that took effect in the fall of 2021. Basically, this case, it was a Christian father who was taking issue with programs that offered low-cost or free birth control to a variety of people but including teenagers, and basically arguing that teens should not be able to access birth control without parental consent.

In that case, Judge Kacsmaryk sided with the father. I can't quote the statements off the top of my head, but he used some fairly forceful language saying that contraception was a very big decision and that parents should be involved. That's just one example of a ruling that I think shocked a lot of people at this moment. I don't know. Maybe it shouldn't have, but we're coming on the heels of that decision with this big abortion post case.

Dr. Melissa Harris-Perry: You said that one of the strategies of ADF, and in this case, that's standing for Alliance Defending Freedom, is to find judges that they believe will be beneficial for their case, for their argument. Is that why this was filed in Texas? Because, clearly, Texas is a place that has pretty intense restrictions already on access to abortion.

Caroline Kitchener: Right. I do want to start by saying that this practice, which is widely known as either forum shopping or judge shopping, it's not new and it's not also unique to the conservative movement. This is also something that liberal legal groups do. There are also judges in Texas and everywhere. If we're just looking at the state of Texas, there are particular judges that Planned Parenthood and Whole Woman's Health abortion clinics, those were the judges that they file their lawsuits against abortion bills, other anti-abortion legislation with because they know that they're much more likely to get the result that they want there.

We want to put that out there first. In terms of why this case was filed in Texas, I have spoken to the Alliance Defending Freedom. They are very steadfast on the fact that this was not explicitly the reason that they filed here. The Alliance for Hippocratic Medicine, which is one of the anti-abortion medical groups, one of the plaintiffs in the case, they say they were incorporated in Texas. They have what's called a registered agent in Amarillo, which is why it's this particular district.

What's important to know is that the Alliance for Hippocratic Medicine was only incorporated several months before this case was filed. Rolling Stone actually did some good reporting to find that their mailing address is actually in Tennessee. I don't have any definitive answers there, but it certainly seems like the judge that you would get that you know you're going to get if you file in Amarillo might have something to do with the fact that this is where this group was incorporated.

Dr. Melissa Harris-Perry: We've talked a lot about the legal side. I want to go to the medical side acknowledging that you're a journalist, not a doctor, but you've been doing pretty close reporting around this. Let's talk about the two-step medication process and why there was a decision to focus on this particular approval.

Caroline Kitchener: Absolutely. The standard regimen in the United States for medication abortion is a two-step regimen of both mifepristone and misoprostol. Misoprostol goes back-- well, I guess mifepristone at this point also goes back decades, but it was originally for stomach ulcers and various other things. Mifepristone was approved in 2000. I think probably mifepristone was the target because misoprostol is used for so many other things.

I also do think it's important for listeners to know that around the world, there is a misoprostol-only protocol for medication abortion. That is widely used in other countries. Now, it's just not as good. It's not as effective. It often comes with more cramping and bleeding and it's just more difficult for a variety of reasons. It does work and that is something that is-- Misoprostol is a lot cheaper and a lot easier to get.

That's why it's something that is widely used around the world. If this does happen and mifepristone is taken off the market, it's not like that's the end of medication abortion. There is this other protocol. It's just the end of the way that we do it in this country. It would create a ton of turmoil in abortion clinics and it would also just generally make medication abortion more difficult.

Dr. Melissa Harris-Perry: More difficult even in the experience, right? It almost sounds to me less like a full overturning, the way that Dobbs was, that this is almost the medical version of the TRAP laws where you saw anti-abortion groups lobbying states and localities to add all of these unnecessary requirements to locations that were delivering procedural abortions. It just makes access harder in every way.

Caroline Kitchener: That's such a great parallel to draw. I think what's important for people to know is that I think that this is a hard concept to grasp. Here, we are talking about this hugely consequential protocol change, not just in Republican-led states. This is something that would affect the entire country. It would throw clinics in New York and California and Vermont into turmoil, places where abortion is protected in the law, some places in the constitution.

I think that that's a hard concept for people to grasp. Especially over the past year since Dobbs, we've been trained to think about this two-part country when it comes to abortion. With a potential ruling like this and with a case like this as part of the anti-abortion strategy, I think the thinking is just, "How do we cause as much disruption as possible?" Even if there is another way, even if people can still get surgical abortions or people can do a miso-only protocol, how do we throw things into as much disarray as possible?

Dr. Melissa Harris-Perry: Caroline, stick with us. Everybody out there, stick with us. We're going to continue on this conversation when we return. We're going to dig in a bit at the state level and talk a bit about the defense of abortion rights. It's The Takeaway.

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Dr. Melissa Harris-Perry: Welcome back to The Takeaway. I'm Melissa Harris-Perry and I'm still with Caroline Kitchener, national reporter covering abortion for The Washington Post. Now, the Dobbs decision last year set off a bit of a chain reaction in 13 states that had so-called "trigger laws" that were intended to automatically or swiftly ban abortion if Roe v. Wade no longer was the law of the land. One of these 13 states is Kentucky and its trigger law would make it a felony to provide or try to provide abortion services.

The state also has a separate abortion ban making the procedure illegal after just six weeks. These bans make no exceptions for cases of rape or incest. Abortion rights supporters, including the ACLU, sued last year to challenge the bans. They convinced circuit court judges to allow abortions to continue while the legal challenges played out. Last week, the Kentucky State Supreme Court ruled to reinstitute the ban even while the cases are still under deliberation.

Caroline, let's pick up there. I'm interested in the role of the courts here for a moment. If Dobbs and the language of Dobbs is, "We are sending it back to the people and their elected representatives," but as you just reminded us, the case in Texas could lead to a national ban on one of the key aspects of medicated abortion. Here, you have a court stepping in to, again, institute or reinstitute a ban while judges are making a decision in the broader sense. Is this what the Supreme Court meant by giving it back to the people and their elected representatives?

Caroline Kitchener: I don't know. It's a good question. Something that was really striking to me about the Kentucky case that you're talking about is that that court explicitly waited to do their oral arguments until after the ballot initiative in Kentucky in November. Everybody knew that they were coming up on a big vote where everybody in Kentucky would have a chance to weigh in on what they wanted to happen with abortion rights.

Actually, in Kentucky, the ballot initiative was from the anti-abortion side. It was a chance for people to say, "Explicitly, abortion is not protected in our state constitution." It turns out people didn't want that. I would say, for me, covering this issue on that night, that was the biggest surprise of the night, Kentucky's result. People came out and they said, "No. Actually, we support abortion rights, at least to the extent that we don't want our constitution to explicitly say that we don't protect them."

It was interesting to me because the court held off for that reason. They wanted to be able to know when they were hearing the arguments what happened in that initiative. Still, how many months later are we in? Now, here we are at the end of February and they ruled to keep that abortion ban in place. I think that was going to be a signal to me. I'm not a legal expert on courts, but I was interested to see whether that would make a difference, the result of the ballot initiative. It didn't, so there we are.

Dr. Melissa Harris-Perry: Speaking of the states, I live happily, joyfully in the state of North Carolina. We've covered here on The Takeaway what's potentially happening in our state legislature. Can you talk to me a little bit about Florida, about North Carolina, about Alabama, Oklahoma? What are we looking at here?

Caroline Kitchener: Well, the state legislature is in January. Most of them went back for the first time since Roe was overturned. It's this big question, what are states going to do with this first opportunity knowing the results of the November election, knowing that voters really came out to back abortion rights? I think as much as you can say that there's a trend, it is going after abortion rights in these states that both have Republican-led legislatures and that have become real destinations for people seeking abortions in the wake of Dobbs.

Two states that really stand out there are North Carolina and Florida. North Carolina, the number of abortions there spiked higher. There was a larger increase in the number of abortions there since Dobbs than any other state or a larger percentage increase than any other state. Then Florida does have the 15-week ban in place right now, but still, the vast majority of abortions take place before 15 weeks. Florida, just because of size of the state and the location of the state right there in the South and just how many clinics they have, has also been a major destination.

I would say if you had to say two states that the anti-abortion movement is most focused on, it's North Carolina and Florida. Neither state has actually had the abortion ban introduced yet. They're discussing exactly what they want to do, whether they want it to be a six-week ban, a 12-week ban. They're figuring that out behind the scenes, but I feel fairly confident that we're going to see a big push in both of those states.

Dr. Melissa Harris-Perry: Are there any states moving to defend abortion rights?

Caroline Kitchener: Oh, certainly. We just saw Minnesota protect abortion rights in their state law. There are a number of states. Just, I think, yesterday, it was a consortium of 20 governors from Democrat-led states coming together saying, "We are together on this issue. Together, we'll defend abortion rights." It's really a handful of states that sit in the middle here right now that don't have a ban on all or most abortions or that don't have protections. This fight is really taking place in these states. Many of which are just geographically close to the states with bans and, therefore, have become access states. It's a real tug of war for access in these states that have become really important access points.

Dr. Melissa Harris-Perry: Caroline Kitchener is a national political reporter covering abortion at The Washington Post. Caroline, as always, thanks for joining us here on The Takeaway.

Caroline Kitchener: Thank you so much, Melissa.

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