Washington Week with The Atlantic

It's been a week of legal whiplash in the high-stake battles over access to the abortion pill, Mifepristone, the most common form of abortion in the country.

Late this afternoon, Supreme Court Justice Samuel Alito temporally restored access to the drug giving the high court more time to consider an emergency appeal filed by the Biden administration and the drug's manufacturer.

Alito's decision comes after a federal court ruling late last week sparked confusion and chaos in the medical community after a Texas judge invalidated Mifepristone's FDA approval.

Joining me now to discuss all of this, Sarah McCammon, National Correspondent for NPR, and with me here in studio, Leigh Ann Caldwell, co-Author of The Washington Post Early 202 and Anchor for Washington Post Live, Carl Hulse is Chief Washington Correspondent for The New York Times, and Franco Ordonez is a White House Correspondent for NPR.

Welcome to you all.

Thanks for joining us.

Sarah, let's begin with you because there is a lot of confusion over what this means, what all of this means in practical terms.

So, walk us through what Justice Alito's decision now means at this moment for access to Mifepristone.

Sarah McCammon, Correspondent, NPR: At this moment, the answer is easy because nothing has changed, but that is likely to change soon.

So, in states where abortion is legal at this moment, abortion pills can still be prescribed as before, can still be sent through the mail, that is because of the Supreme Court decision, the administrative stay that you mentioned that preserves the status quo, that goes through next Wednesday night.

And it came in response to a request from the Biden administration for emergency relief in this case.

Of course, we are talking about a case that has been working its way through the court system.

It is about access to Mifepristone, which is an abortion that's been on the market more than 20 years is now used in a majority, it looks like, of most abortions in this country.

And this all started with a challenge from anti-abortion rights groups who filed a lawsuit in Texas late last year, seeking to overturn the Food and Drug Administration's approval of this drug.

You mentioned that decision last Friday, a week ago, that the Texas judge for this case started, a federal judge appointed by former President Trump, issued an injunction that, as you said, created a lot of confusion and would have put on pause essentially that FDA approval for a time while the case was litigated.

A series of maneuvers have been working their way to the courts the last week and, basically, where we have landed is for the moment nothing has changed.

But do not hold your breath because it likely will.

Amna Nawaz: So, that is succinctly as we can put it at this moment.

Carl, when you look at where the country is right now, we know, broadly speaking, when it comes to abortion access, the majority of Americans believe it should be legal in most cases, specifically when it comes to medication abortion too.

These numbers were interesting to me.

53 percent of adults say medication abortion should be legal in their state.

22 percent say it should be illegal.

About a quarter of those asked aren't sure.

How does all of this square with the continued push we are seeing from Republicans and conservatives to restrict access?

Carl Hulse, Chief Washington Correspondent, The New York Times: I mean, you have a part of the Republican Party that is just ardently anti-abortion and they're going to push on this no matter what the political consequences.

But you do have part of the party that is very worried about this, that it is going to allow Democrats to continue to paint Republicans as extremists on this issue.

They point to the Trump judge who did this.

I think that Congress is coming back next week.

You're going to hear a lot of discussion about this.

And I'm also watching the court very closely on this because this obviously a temporary respite.

Does the court take the opportunity to lower temperature on this issue going forward, make some kind of decision that moves it away from the initial court ruling, or do they just go back at it themselves?

So, Democrats, it's a serious issues, but Democrats also see a big political advantage.

Amna Nawaz: Franco, how is the White House looking at this?

Because some of the criticisms we've heard is they have been slow and they've been reactive when it comes to addressing these restrictions.

What are they saying at this point?

Franco Ordonez, White House Correspondent, NPR: I mean, they say they're ready for a fight.

I mean, Carl is pointing out how Democrats are painting these Republicans as radical extremists.

The White House is doing the same thing.

I was in touch with the White House just today talking about it.

They're promising to fight vigorously about it.

They're armed with just levels and levels of data.

They sent me all these polls that kind of describe what you were saying about the numbers that Americans don't want the government interfering with their reproductive rights.

But I agree with you, and I think you are right, particularly when it comes to Joe Biden and whether Biden is really going to kind of take the mantle and kind of lead this.

Kamala Harris has kind of been the face of this, but Biden has been an uneasy champion.

He has got his catholic roots.

It will be interesting to see how hard he grasps this, because that is what Democrats certainly wanted to do.

Amna Nawaz: Leigh Ann, as you know, depending on which Republican you ask, you get a different answer sometimes or a non-answer and it comes to where they stand on abortion.

I was struck by former Vice President Mike Pence's answer when he was asked about it in an interview just this morning on Fox and Friends.

Mike Pence, Former U.S. Vice President: I couldn't be more proud to have been a small part of an administration that appointed three of the justices that overturned Roe v. Wade.

Amna Nawaz: Where does a statement like that put Mr. Pence in particular among the field of potential contenders for 2024?

Leigh Ann Caldwell, Co-Author, The Early 202, The Washington Post: Yes.

Mike Pence is really leaning into this issue.

This is a good issue for him.

This is his lane, his Christian social conservative, a Christian conservative, and this is where he wants to be and where he feels most comfortable.

And he represents that faction of the Republican Party.

But this puts the entire Republican Party in a very difficult spot.

And you can see that based on how presidential candidates or potential presidential candidates are responding.

You have Mike Pence, on one hand.

You have the governor of Florida, Ron DeSantis, who just signed a six-week ban in Florida late last night, and then you have likely candidate Senator Tim Scott of South Carolina, who came out this week with a -- supporting a 20-week ban, which is not far from the Roe v. Wade standard.

And so that is symbolic of the dichotomy and the challenges that Republicans have on this.

I talked to Republicans on Capitol Hill, and my sources tell me that the party does not have a message, they do not have a consistent message and they need to figure it out.

Carl Hulse: Well, one of the things that they are trying to do is to say, well, Democrats will have abortion at any point, right?

That is their big pushback.

But the polls show that people -- the majority of Americans by far want people to have some opportunity.

Pence's comments struck me too because it does remind people how the Republicans packed the Supreme Court to get this overturned with putting Brett Kavanaugh but also holding that seat open.

So, he says that, but Democrats see that in a different light.

Amna Nawaz: And, Sara, speaking of the courts, we have to mention this is the first time the abortion issue has landed back before them since that June decision, in which they overturned Roe.

Do we have any indication if they are likely to take up the appeal in this case?

Sarah McCammon: No.

It is hard to say for sure but a lot of court watchers have predicted that this would end up at the Supreme Court.

Of course, they just weighed in today on this request for a state, that they have not weighed in on the merits and we don't know when or if they will.

But this is something that when I talked to anti-abortion rights groups that they really want the Supreme Court to weigh in on.

I've heard from more than one organization that they think this is something that the court is poised to rule in their favor on.

They look back at the Dobbs decision, of course.

And they welcome the opportunity, they tell me, for the court to resolve these questions they say at a national level.

Amna Nawaz: Sarah, in the meantime, I know you have been speaking with providers, as they have been following these legal decisions and trying to ascertain what is going on.

What are they telling you about the uncertain road ahead?

Sarah McCammon: Well, they've been - - a lot of them have been sort of looking at the laws in their states, looking at where they are in the map, trying to figure out what they can and cannot do, of course, looking at these conflicting decisions that have come first from the judge in Texas.

And then there was another federal case in Washington State that we have not really talked about, but a group of attorneys general, Democratic attorneys general, sued in federal court in Washington to try to preserve access to Mifepristone.

They also won this week.

And so it looks like there is a situation where you have one ruling applying, potentially applying in some states and not in others.

Of course, with the Supreme Court stay, things stay as they are.

But providers have been looking at where they are on that map, which states they are in and what policies might apply to them.

I talked to some providers this week who are looking at pulling back all together from prescribing Mifepristone at least before the Supreme Court's stay and others that were planning to plow forward, press forward, especially in states like Illinois that are part of that 18.

So, it is a lot of uncertainty, both for providers and, of course, for patients.

Amna Nawaz: That is Sarah McCammon, National Correspondent for NPR.

Sarah, thanks for joining us and sharing your reporting.

Well, those lower court rulings over abortion access highlight concerns over another priority for Democrats and the Biden administration, the push to confirm federal judgeships.

Senator Dianne Feinstein, the 89-year-old California Democrat, has been recovering from an illness since February and absent from her duties on the Judiciary Committee, which does confirm judges.

Leigh Ann, we have seen California Democratic Representative Ro Khanna now leading the calls for her to step down.

He tweeted this earlier saying, it's time for Senator Feinstein to resign and saying it is also obvious she can no longer fulfill her duties.

It's worth noting her Senate seat is up next year.

There are some really complicated dynamics at play, though, here.

Leigh Ann Caldwell: Yes, to say the least.

There are a couple of issues here.

It is complicated for Gavin Newsom, who would appoint a successor, should Dianne Feinstein step down.

Of course, Gavin Newsom is a Democrat.

He will appoint a Democrat.

That is not in question.

But he has said that he wants to - - if he does do that, it would be a black woman.

Well, there are three high-level candidates who are already announced they are running for the Senate seat.

One is Representative Barbara Lee of California, and she is a black woman.

And so it makes it -- Who Ro Khanna backs, by the way?

So, it makes it very tricky.

There is also Adam Schiff and Katie Porter who are also in the race.

So, there's the political problem.

And then there's the challenge for Democrats on Capitol Hill where Dianne Feinstein is on a very important committee, the Judiciary Committee, and her absence could cause problems down the road if she doesn't come back.

Now, they are going to appoint someone temporarily perhaps, but Carl has done a lot of reporting about it.

Amna Nawaz: Well, Carl has -- I mean, they would argue -- some would argue it has created issues already.

Her absences held up those judges' confirmation.

Carl Hulse: They have not been able to advance the judges they want.

It is such a fraught issue.

Dianne is an icon.

And to a lot of people looking at this, while you are pretty rudely ushering her out of the room here, so how do you deal with that, but we have to have her seat to move these judges.

Now, the solution that they've come up with is for her to temporarily step away and fill it.

But I am not 100 percent sure the Democrats are going to be able to fill that seat the way they think.

This is going to require action by the Senate, and Republicans I am talking to already, they are not going public but they are saying, well, why should we make it easier for Democrats to go ahead and confirm these judges, who we honestly don't want?

So, there is a lot to play out.

But I do think that these political dynamics are fascinating that she got into and why certain people are saying certain things is because they have their own horses in this race.

Amna Nawaz: Well, also if I can follow-up with you, this does open up the larger conversation to uncomfortable conversations many of us have been having for a long time about many older members of the Senate.

How do you think this plays into all of that and also others?

Mitch McConnell has been absent -- Carl Hulse: And into the presidential race.

I think this has people really thinking about how long is too long.

And, traditionally, you stayed in the Senate until you decided you are going to leave or the voters decided you needed to leave.

So, I think this is -- it has put it front and center but there's not going to be like a change where it says you have to leave by certain age, but it has put the focus on this and I think we are going to see a lot of discussion about it.

Leigh Ann Caldwell: Yes, absolutely.

She is 89, but there is also Republicans who are also - - Chuck Grassley is nearing that age.

Carl Hulse: And talking about running again already.

Amna Nawaz: Right.

Carl Hulse: I think he's filed, by the way.

Amna Nawaz: I feel like we will be having this conversation again at another point.