A Court Hearing Full of Sound and Fury, Signifying Nothing

If ever you wanted to know what it looks like when a panel comprised of three duly-appointed federal judges throws a temper tantrum, you really should have been in New Orleans yesterday. Because that's a pretty good description of what Judges Jennifer Walker Elrod, James Ho and Cory Wilson did.

The case in question is the ongoing legal battle over mifepristone. Readers will recall that Matthew Kacsmaryk of Texas, whose previous career was as an anti-abortion activist, ruled that the FDA's approval of the drug was not legal, and that it should therefore be withdrawn nationwide. Kacsmaryk's decisions are appealed to the ultra-conservative Fifth Circuit, and that's how Elrod, Ho and Wilson got the case. The latter pair are appointees of Donald Trump, the former an appointee of George W. Bush. And while there are certainly federal judges who do their very best to call balls and strikes, regardless of the president who appointed them, these three are not in that group. They (and many of their Fifth Circuit colleagues) have a richly deserved reputation for judicial activism, and for standing on their heads to get the desired (right-wing) legal outcome, regardless of what the law says.

Waging the fight against mifepristone are a bunch of right-wing activist groups, with the Alliance Defending Freedom (ADF) taking the lead. The ADF, incidentally, has been labeled a hate group by the Southern Poverty Law Center. Representing the defense yesterday were Sarah Harrington (for the FDA) and Jessica Ellsworth (for Danco Laboratories, which manufactures mifepristone). Here are some of the lowlights of a day that should be an embarrassment to jurists everywhere:

• Ho, for his part, was happy to accept claims made by the plaintiffs that are absolute myths. For example, that the FDA approved mifepristone on the basis that pregnancy is a "life-threatening illness." Ho asked: "When we celebrated Mother's Day, did we celebrate an illness?"
  
  
• Elrod was angry that the FDA has not produced full documentation of its approval process, despite Harrington pointing out that it will take time, since there are hundreds of thousands of pages of documents, stretching over three decades. The Judge implied that there's a cover-up going on.
  
  
• Elrod, who is clearly of a conspiratorial bent, also implied that Danco is engaged in illegal smuggling of mifepristone into states where it is banned.
  
  
• Elrod also chewed out Ellsworth for the language in her brief, which refers to Kacsmaryk's initial ruling as an "unprecedented judicial assault" on reproductive rights. The Judge strongly suggested that Ellsworth make a formal apology to Kacsmaryk.
  
  
• Wilson claimed that because the FDA allows people other than physicians to prescribe mifepristone, more women have ended up in the ER and/or in surgery. There is zero evidentiary basis for this claim.
  
  
• Observers in the courtroom universally agreed that while the three judges regularly subjected Harrington and Ellsworth to the third degree, and often interrupted them while they were speaking, they treated the plaintiffs' lead lawyer (Erin Hawley) with kid gloves.

The headline of The Washington Post's article about the hearing captures the conclusion that pretty much all commentators reached: "Appeals court appears likely to restrict access to key abortion pill."

There is only one small problem with that headline, however. If we want to be actually correct, the headline should be: "Appeals court appears likely to rule that access to key abortion pill should be restricted." Keep in mind that the Supreme Court has already weighed in on this matter, and has imposed an injunction on Kacsmaryk's decision that will remain in place until the entire process plays out, including SCOTUS' own hearing and ruling. So, Dewey, Cheatem and Ho could rule that mifepristone should be banned worldwide, and that everyone who so much as utters the word "mifepristone" should be drawn and quartered, or they could rule that mifeprostone should be doled out by the handful, like it's Halloween candy. Either way, it would not matter one damn bit. Until SCOTUS has its say, the status quo holds, and the opinion of the Fifth Circuit is irrelevant. And once SCOTUS does rule, their decision will trump whatever the lower court decided. So, unless SCOTUS splits in such a way that it cannot reach a majority decision (a nearly inconceivable outcome), which would leave the Fifth Circuit's ruling in place, then this trio of judges will never have any impact on the availability of mifepristone, one way or the other. Not for a single month, week, day, hour or minute.

Undoubtedly, Ho & Co. knew that their decision will almost certainly never take effect. So, did they behave the way they did because they were angry about that? Because they wanted to, at very least, take this opportunity to make their point(s) about mifepristone? Because that's how they would have behaved anyhow, regardless of the SCOTUS injunction? Who knows? But all they really achieved was to embarrass themselves, and to give a little more ammunition to the pro-choice forces, who are building a case that the courts are out of control, and some sort of reform is needed.

That's the legal story. If you prefer Shakespeare to Faulkner, it's Much Ado about Nothing. The political story is something else again. Not everyone is aware that the Supreme Court has already put the case on hold until it can make a decision on the merits of the case. A lot of people are going to hear about yesterday's appeals court ruling and think "abortion has been banned." This is likely to scare some of them, probably even scare some young people who generally don't vote into making a mental note: "Vote next year." So while the legal impact of the Fifth Circuit decision will be minimal, the political impact could be much larger (and see below for more on the politics of abortion). (Z)

Talking about Abortion, Part IV: More Questions and Answers

Way back on April 20, we ran three questions that readers sent in for us to pose to anti-abortion readers, along with answers from C.H. in Atlanta, GA; M.E. in Roanoke, VA and K.K. in Washington County, TX. Today, we're going to run three more questions and answers; you can click on the link if you'd like a reminder as to each of the three answerers' biographies. And without further ado:

---

T.O. in Portland, OR, asks: How do you justify overriding bodily autonomy? I concur with the sentiment that abortion ends a human life. This seems like an obvious fact that does not need a religious foundation and is one that I wish more pro-choice people could acknowledge to better understand the motivations of our pro-life compatriots. That said, for me it comes down to bodily autonomy. If you can justify overriding that to save a human life, could you likewise make organ donation mandatory? Could the State compel me to surrender a kidney to someone if I am the only compatible donor and they will die without it?

C.H. answers: Thank you for having the intellectual honesty to acknowledge that abortion is the termination of a unique human life and not the casual discarding of amorphous cells. I think I would challenge you to let that truth sink in. I did not give birth to my daughters, but that's not to say they haven't interfered in some way with my autonomy every day since they were born. This morning my bodily autonomy to sleep soundly was overridden by my youngest's desire to climb into bed with mom and dad because she wasn't feeling well. My wife's bodily autonomy to not be sick was overridden as she got sick with the same thing as our daughter.

Why do my wife and I pay a king's ransom in babysitting fees whenever we want to go on an all-too-infrequent date? Our autonomy is limited by the State of Georgia telling us that we can't leave our young children unattended in our house. To be part of a polity is to accept limitations on one's autonomy all the time. The State of Georgia (along with 47 other states) dictates to women and men that they cannot decide to seek out someone to assist them in terminating their own life. If, as a society, we have decided overwhelmingly that individuals lack the autonomy to ask for help in ending their own lives—how is it so shocking that many find it even more extreme to allow a mother to unilaterally choose to terminate her own child?

When someone speaks about a woman's bodily autonomy and that her desire to not be pregnant outweighs the fetus's right to continued existence, one must view a fetus as nothing more than a parasite leeching off the mother in utero. If the lens used is that we're talking about a human being, then it follows that we must weigh that individual human's needs against their mother's conflicting needs and desires. Women have been prosecuted in 45 states for using drugs while pregnant because of the harm they inflict on their fetuses by that behavior. It feels surreal to me that it's okay for that mother to terminate the life of her child but harming that child because of her drug use is where society draws the line.

Your question about state-mandated organ donation is interesting—I've never thought about it before. Feels a bit like comparing apples to anvils though. Abortion results in the death and destruction of a separate, unique human being. Mandatory organ donation involves harvesting organs from an already dead human being to give multiple humans an opportunity at continued life. I'd have serious problems with a program that actively involved killing human beings to harvest their organs—that's dystopian. But no, I don't think I have a particular moral problem with an opt-out approach to managing organ donation. Of course, I am an organ donor and am happy to know I could help save several lives once I shuffle off this mortal coil.

M.E. answers: I likewise wish pro-choice individuals were willing to acknowledge that abortion ends a human life! Indeed, out of all the questions posed, I find yours the most difficult to answer and can offer only a partial explanation.

To start, consent is an important factor. If an individual consents to sex and pregnancy is the result, it seems relatively straightforward to suggest that this individual has voluntarily and temporarily surrendered their right to bodily autonomy. Indeed, this highlights a major difference between pregnancy and forced organ donation—in the former, two individuals engaged in a consensual action that created a life; in the latter, the donor did not engage in any action to cause the sickness.

While convenient, this line of logic breaks down when examining the "tough cases" of rape and incest and it is here where I struggle to fully answer your question. My reading of this study from the National Institute of Health suggests that there are roughly 16,000 U.S. rape-related abortions per year. Set against a CDC estimate of approximately 620,000 U.S. abortions per year, this implies that abortions stemming from non-consensual sex account for roughly 2.5% of all U.S. abortions.

For these tragic cases, my ability to cleanly balance rights ends. A life exists and yet bodily autonomy has been violated at least once. Especially given my personal moral opposition to abortion, I don't trust my ability to apply unbiased logic to this situation. Perhaps it is a bit of a dodge, but ultimately a reduction in abortion of 97.5% without violating consensual bodily autonomy seems like an excellent starting point.

K.K. answers: I am happy to hear that you recognize as an obvious fact that abortion ends a human life, and I totally agree with your point. I, too, wish all people could recognize this reality. As to your point concerning bodily autonomy, it has always been the case that your right to bodily autonomy ends when it infringes upon another person. You have every right to walk down the sidewalk punching the air, but as soon as another person could be harmed by your actions, your autonomy ends. You have a duty not to cause harm to others. The judge won't buy the argument that you were just exercising your bodily autonomy when you hit the other person on the nose. And since it is a biological fact that at the moment of conception, the child formed has its own DNA separate and unique from the mother and father, it is obvious that there is another human life, as you have pointed out. And this child is also entitled to bodily autonomy. In the overwhelming majority of cases, the mother has the right to exercise her bodily autonomy before the child is conceived by not engaging in sexual intercourse. So, the example of the state compelling someone to donate an organ would only be analogous if the state was compelling the mother to become pregnant. Which, of course, they are not doing. Once the child is conceived, its bodily autonomy must also be considered.

---

D.R. in Omaha, NE, asks: This is specifically for those who are opposed to reproductive choice and also in favor of the death penalty. How can you claim to value "life," when you are also in favor of the death penalty? Aren't you perhaps valuing innocence or chastity, and not life?

C.H. answers: Not applicable to me as I adamantly against the death penalty for the same reasons I against abortion. I guess, in some ways, I am even more anti-execution than anti-abortion in that I can accept some limited circumstances wherein an abortion may be necessary. It is genuinely surreal to me that there are Christians out there claiming to worship a falsely condemned and executed itinerant Palestinian Jewish rabbi and yet they are unfazed by the systematic murder of human beings by the State. It's nuts.

M.E. answers: I guess I get the easy way out for this one. The Catechism of the Catholic Church clearly holds that "...the Church teaches, in the light of the Gospel, that 'the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person' and she works with determination for its abolition worldwide." And yes, I am aware that this places me in opposition to many Republicans. I have written my letters and made an uneasy peace with the knowledge that the taking of life via the death penalty is a small but tragic fraction of the lives lost to abortion.

K.K. answers: Let me preface my answer by saying that I am no longer in favor of the death penalty, but at one time was, and currently believe the government has the right to enforce capital punishment. One can be pro-life and also support the death penalty without holding contradictory views. The biggest difference is that the child in the womb never has their day in court. There are no charges filed. There are no rights read. No lawyer is appointed if they cannot afford one. There is no jury trial of one's peers. There is no trial. No evidence is presented by the state of the capital offense the child committed to warrant its execution. The child never gets the chance to speak in their defense. They never get the chance to answer the charges. There are no chances for appeals. No chance for clemency. The child is simply deemed unworthy of life and executed. The adult who is executed by the state has all those opportunities. And from a religious point of view, we are not to murder—that is, to take the life of an innocent person. Yet the government is tasked with carrying out the power of the sword (Rom. 13). And for the record, I have changed my position on the death penalty for the same reasons I stated above. There have been too many instances when due process was not followed, and innocent men and women have been executed. Until we have a better justice system, I will remain against the death penalty.

---

E.C. in Baltimore, MD, asks: I assume that a significant majority of anti-abortion sentiment is rooted in "Christian Values." Why wouldn't you just let God work it out and let the "sinners" burn in hell?

C.H. answers: By this logic, we should trust God to exclusively punish murderers, rapists, thieves, USC Fans, etc. I believe these individuals will face divine judgment for their actions, but it's silly to suggest that society has no right to intervene to stop evil from happening in the first instance. This isn't simply someone cheating on their spouse or embezzling from their boss—we're talking about the unilateral choice of a mother to kill her child. I know that's charged language, but those are the stakes to those of us that believe as I do.

I reject the premise that a tiny human being's residence in a uterus as being the only grounds for allowing that life to be deliberately extinguished.

M.E. answers: I oppose abortion for both Christian and non-Christian reasons. Speaking strictly to the Christian side of things, my very real personal belief is that Hell is the worst possible state of existence. Why would I wish that on anyone? I am a sinner, and I don't wish Hell upon myself even though it is what I deserve. Indeed, this is the entire point of mercy—that I (and everyone) can, through no merit of their own, receive grace.

My wife and I met while attending Texas A&M in College Station. There, we were very active members of a newly formed organization called 40 Days for Life (now one of the largest anti-abortion protest groups). The director of the local Planned Parenthood at that time was none other than Abby Johnson. My wife and I easily spent hundreds of hours outside that facility before it closed. We saw Abby's conversion and have nothing but love and respect for her journey in our hearts. The same is true for all—the past may be unchangeable but it is also forgivable. I have received more than I deserve; how could I ever wish less for another?

K.K. answers: For me, my pro-life stance is certainly rooted in my faith. And Christ tells us when asked what the greatest commandment is, "You shall love the Lord your God with all your heart and with all your soul and with all your mind. This is the great and first commandment. And a second is like it: You shall love your neighbor as yourself." (Matt. 22:37-38) So, as Christians, we are to care for our neighbor. The child in the womb is the most vulnerable of our neighbors, and therefore we don't want to see any harm come to them. The same way we care for the widowed and elderly, the sojourner and the orphan, all of God's people. You are also missing the point of being a Christian. It is not to let sinners burn in hell but to do everything we can to witness to the truth of salvation, which lies in Christ, and pray that everyone repents and believes. God "desires all people to be saved and to come to the knowledge of the truth." (1 Tim. 2:4) Christianity is not a fatalistic religion, where we just sit back and let God sort it out. We are tasked with sharing the Good News of Christ crucified for all. So that is why the vast majority of Christians are pro-life.

Thanks to both the questioners and the answerers. Back on May 4, we ran an account from a reader who very much needed an abortion, despite desperately wanting that to not be the case. Our plan tomorrow is to run an account from a doctor, and their experiences since Roe was overturned. If any other physician-readers would care to add to that, we'd be very grateful to have your perspective. (Z)

Abortion Appears to Be Wrecking Republicans at the Polls

In our write-up of Tuesday's election results, we missed one interesting one. The city of Colorado Springs, CO, is pretty red, consistent with the fact that it's home to the Air Force Academy. In fact, it's the reddest city in Colorado, and has had Republican mayors since 1979. Not anymore, though. The city just elected entrepreneur Yemi Mobolade, who is young, a registered independent, and the first Black person to lead Colorado Springs.

What this means is that, on the whole, the Republicans had a pretty bad day on Tuesday. They suffered two mayoral upsets (Colorado Springs and Jacksonville, FL) and also failed to win the seat (PA-SD-163) that would have given the party control of the Pennsylvania assembly. Indeed, the Republicans did not win a single significant, or semi-significant election on Tuesday, excepting a handful in which the GOP candidate was the overwhelming favorite (as in PA-SD-108).

Aaron Blake, who managed to land a job crunching numbers for The Washington Post despite not being named Nate took a look at the overall picture, and observes that the Democrats are very clearly on a winning streak right now. There's the midterms, of course, where a red wave turned into, at best, a red trickle, while the Democrats managed to actually expand the size of their contingent in the U.S. Senate. Then, in the highest-profile races of 2023, the blue team won a special election for a Virginia seat in the U.S. House of representatives in dominant fashion while also winning the Wisconsin state Supreme Court race convincingly. Downballot, there have been 18 state legislative elections this year, and the Democrats have outperformed their 2020 totals in those races by 6 points. And remember, 2020 was a good year for Team Donkey; if you want to compare to the much worse year of 2016, they've outperformed their totals by double digits.

As Blake points out, and as we would note if he didn't, the nature of American elections is such that you can never boil them down to a single issue. Nonetheless, the recurrent motif in these races is abortion. Candidates running on a pro-choice platform (even a moderate one) are winning, while those running on an anti-abortion platform are losing, often bigly. This won't hold in deep red states and districts, of course, but those are already in the bag for the Republicans. Everywhere else, as we and everyone else have been predicting for well over a year, the Dobbs decision could be an anchor around Republican necks.

And, of course, it's not just the Dobbs decision that's influencing voters, it's the legislation (and the court cases, see above) that Dobbs has enabled. We wrote about North Carolina's 12-week ban for yesterday's post; a few hours after it went live, the unicameral Nebraska legislature advanced a similar 12-week ban (that also has a bunch of anti-trans measures in it). Other non-ruby-red states that have jumped aboard the train include Missouri, Texas, Florida and Georgia. And even in some of the ruby-red states, there are congressional districts that are competitive and where abortion rights could be decisive. Louisiana is on that list, as are Utah, Arkansas, Tennessee and Kentucky. And Republicans in the purple states of Pennsylvania, Michigan, and Wisconsin are plotting ways to somehow get the issue before voters.

It is difficult to predict election results 17 months in advance (in case you're wondering, Election Day 2024 is 17 months, 19 days away). That said, the Dobbs decision leaked on May 2 of last year. And in our post the next day, we wrote:

[T]his introduces a massive wildcard into the 2022 midterms. And a massive wildcard is the Democrats' best hope for shifting the narrative away from inflation and Afghanistan and mask mandates, and very possibly stopping a red wave. If they don't spend the midterms hammering on the theme of "if you vote for Republicans, this is what you get," then the Democrats are guilty of political malpractice.

We now have one year of data that shows we were on to something. And it's not so outlandish to think that something could linger for another year, or two, or more. (Z)

Trump Legal Blotter, Part I: His Documents Problem Just Keeps Getting Worse

What are the odds that Donald Trump dodges the bullet that has "Mar-a-Lago classified documents" written on it in big, bold letters? Not very good at this point. It's starting to look like he's got a better chance of winning a Nobel Prize. In Literature.

His situation is in the process of going from very bad to much, much worse in three different ways right now. To wit:

1. Trump's Big Mouth: In case you ever need to understand why Trump's lawyers never, ever want him to take the stand in a court case, all you need to do is refer to the CNN town hall from last week. He was asked about the Mar-a-Lago documents and said: "I was there and I took what I took... I had every right to do it. I didn't make a secret of it. You know, the boxes were stationed outside of the White House."
   
   This wasn't even a court proceeding; Trump could have lied through his teeth and been at zero risk of being popped for perjury. Instead, in the span of just a few seconds, he shot himself in the foot so many times he might as well have been wielding an AK-47. Or, for the Civil War buffs out there, a Gatling Gun. He admitted, on national TV, that he was aware of the document removal. There goes one defense, namely "It wasn't me, it was my staff." He also conceded, on national TV, that the document removal took place as he was leaving office. There goes another defense, namely "The documents had been at Mar-a-Lago for a long time, and we just forgot to return them." And, as a bonus, he also made very clear that the (allegedly) criminal acts took place in Washington, DC. That means that the Department of Justice can bring the case in the capital, and not in Florida, meaning Trump is much less likely to get a friendly judge like Aileen Cannon.
   
   
2. The Paper Trail: On top of this, the news broke yesterday that special counsel Jack Smith is about to receive 16 separate documents from the National Archives, all of which involve Trump and his staffers discussing the rules for classified materials. It's not known exactly what is in these documents, but according to reporting from CNN (and then others), they show that Trump and his lieutenants knew exactly what the correct procedure was for declassifying documents. There goes another defense, namely "I declassified the documents before taking them to Mar-a-Lago, by waving my hand/just thinking about it/scattering pixie dust/wishing upon a star."
   
   
3. Trump's Lawyer: In a development that surely must be connected to at least one of these other developments, Timothy Parlatore, who was a key member of the legal team handling the Mar-a-Lago matter for Trump, quit yesterday. Apparently, there is much infighting among the members of this particular division of Team Trump. Given how frequently their client makes their lives harder, no surprise there.

There's no need to soft-pedal it: He's in deep, deep trouble here. (Z)

Trump Legal Blotter, Part II: What About the Stolen Voting Machine?

Meanwhile, as the plot of the Mar-a-Lago documents case thickens, and then thickens some more (what is it, concrete-level thick at this point?), Slate has a piece headlined: "Trump Was Implicated in a Vote Machine Theft. Why Isn't DOJ Investigating?"

The headline kind of says it all, but as a reminder, members of the Trump campaign, aided by Coffee County, GA, officials who were friendly to their cause, managed to acquire a voting machine and the software installed upon it. That same software runs all the machines in Georgia, incidentally, and was posted to a website where it could be accessed by Trump-allied election deniers across the country. All of this is illegal, and there is ample evidence that the matter was discussed multiple times at meetings where Donald Trump was present. Ipso facto, he is complicit in any crimes that took place.

We pass this item along for one reason. Despite the headline, Slate has no way of knowing whether or not the DoJ is looking into this. Jack Smith and his team do not share details of their daily activities until they are absolutely forced to do so. And, in practice, that means when they finally make a court filing. We often get questions, including one we answered this weekend, about what is taking Smith so long. And the fact is that there are so many things he and his team could be looking into that there's no way to know what they actually are looking into, or how much progress they have made.

Recall that the Durham investigation, which finally wrapped up this week, took more than 4 years, and was ultimately looking at questions that were much simpler and of much less consequence. Smith will move faster than Durham, because he has no choice, and because a lot of the work was done before he was on the job. That means that when Smith does go for an indictment, assuming he does, it will actually come pretty quickly by the usual standards of a federal investigation. Until that day, however, there's nothing for politics-watchers to do, except be patient. (Z)

House Punts on "Santos"

Well, that went nowhere fast. As we noted yesterday, Rep. Robert Garcia (D-CA) introduced a resolution that would kick Rep. "George Santos" (R-NY) out of the House of Representatives. Since it is a privileged motion, Speaker Kevin McCarthy (R-CA) could not substantially delay the resolution, or toss it in the garbage. Rather than kick "Santos" out, however, McCarthy & Co. punted, referring the resolution to the House Ethics Committee. The vote was 221-204-7; the seven included all five of the Democrats on the Ethics Committee plus Reps. Chrissy Houlahan (D-PA) and Marie Gluesenkamp Perez (D-WA). Other than those, it was a party-line vote.

This means that the status quo holds, at least for now. The resolution has been dispensed with, and so McCarthy has no further obligation to bring it to the floor of the House. Meanwhile, the Ethics Committee was already investigating "Santos," so referring the resolution to them changes... nothing. That said, while Wednesday's vote did allow the 221 Republican members to vote on the privileged motion without taking a position on "Santos," it did also commit them to the basic notion that this is a matter for the Ethics Committee to decide. That means that if, once it's done its work, the Committee returns a finding that "Santos" has to go, there's going to be nowhere for the 221 members to hide. And all it takes is for one Republican member of the Committee to vote against "Santos," assuming all five Democrats vote against him. Actually, technically, it wouldn't take a Republican vote against, it would only take a Republican abstention. By the (unusual) rules of the Committee, it's got five members from each party.

In the end, "Santos" is an embarrassment to Congress and to the House Republican Conference. So, there are surely going to be 290 members who want to see him gone. Heck, it's not impossible the vote will be 434-1 (although it should be noted that the one is the only current member of Congress to have stormed the beaches of Normandy on D-Day). But that vote is going to have to wait until the House Ethics Committee takes care of business. (Z)

---

If you wish to contact us, please use one of these addresses. For the first two, please include your initials and city.

• questions@electoral-vote.com    For questions about politics, civics, history, etc. to be answered on a Saturday
• comments@electoral-vote.com   For "letters to the editor" for possible publication on a Sunday
• corrections@electoral-vote.com To tell us about typos or factual errors we should fix
• items@electoral-vote.com            For general suggestions, ideas, etc.

To download a poster about the site to hang up, please click here.

---

Email a link to a friend or share:

---The Votemaster and Zenger