Alison, Liz, and Rebecca are joined by reproductive rights expert, political strategist, and advocate Maya Rupert. They discuss how the fight for reproductive justice is being waged post-Dobbs and why the personal has never been more political.
Background
Cases
Rebecca Markert:
Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts, and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for Separation of Church and State.
Liz Cavell:
And I'm Liz Cavell with the Freedom From Religion Foundation.
Alison Gill:
And I'm Alison Gill with American Atheists.
You know, one of the main goals of this podcast is to highlight the work of amazing secular women attorneys. And that's why for today's episode we're really excited to welcome Maya Rupert.
Maya is a nationally recognized lawyer with an eclectic background. She's an expert on reproductive rights, having served as part of the Center for Reproductive Rights. She was a campaign manager for former Housing and Urban Development secretary Julian Castro during his 2020 campaign for the presidency and campaign manager for Maya Wiley for her New York City mayoral campaign. She hosts the When We Win podcast, where she speaks to incredible women of color in office today who ran against insurmountable odds and won, and she's one of my dearest friends.
Welcome to the show, Maya.
Maya Rupert:
Thank you so much for having me and for that very kind introduction. I'm really excited to be here, y'all.
Alison Gill:
Fantastic. Well, I went over your bio a little bit, Maya, but can you tell us a bit more about yourself and what motivates you to do the incredible work that you do?
Maya Rupert:
Absolutely. I mean, you mentioned my background is a little eclectic. In my imagination of it, it is actually a lot more connected, and I feel like I've been very fortunate. I feel like what has driven me throughout my career is kind of the same north star, right? So I feel like I want to do work that is oriented toward justice for marginalized communities, and I've been able to do that through, like, social justice movement work, through electoral politics, through writing. So I feel like while I have done a number of different types of things, the thing at its core that animates me, regardless of sort of how it's coming across in any given moment, is the same, right? I want to make sure that all communities have access to full political, social, economic participation, and that means just sort of looking toward justice, looking toward liberation for a number of different communities, and I feel very fortunate that I've been able to do that in so many different settings.
Alison Gill:
You know, one thing a lot of people don’t know about you, speaking about your, your advocacy for, for justice, for various communities is your advocacy for left-handed people. Can you talk just a little bit about that? Because I think it's really critical that people know.
Maya Rupert:
I really appreciate that Alison. I also think it's very critical that people know. So, International Left-hand day is August 13th, which means I'm letting you know in plenty of time. You have lots of shopping days left for the lefties in your life to make sure that you're to celebrate international lefthanders day as it's meant to be celebrated. Truly, I'm left-handed. I love talking about it. I love it when I see other left-handed people.
Liz Cavell:
Rebecca, aren't you left-handed?
Rebecca Markert:
I'm left-handed, and I'm so excited to have this connection with you, because, for the most part, I've adapted to this right-handed world that we live in. But the other day I was at a brunch, and I was trying to get a cheese sauce, and it was impossible to do scooping with my left hand. The spout was clearly for right-handed people, and I was like: this is absurd. It's 2024, I deserve cheese sauce.
Maya Rupert:
And that's the thing. It's those tiny little things that just come to you in those moments. I mean, look: obviously this is, it's facetious that it's like one more rights movement, but I do think that left-handedness is a really important and weirdly effective way to talk to people who aren't already inclined to wanna have this conversation about privilege, because it's a place where we don't actually have, like, people aren't immediately defensive about it, right? And so you can talk about it because when we talk about privilege, what we're really saying is, it is acknowledging that the world is set up for some people in the face of the fact that that doesn't work for everyone. And so when you can take it out of these things that people feel like are really loaded and go, yeah, because sometimes a ladle is set up so that you can only pour it with your right hand and you're trying to pour it with your left, people can hear that, and they don't immediately turn it into something else, because that's all we're saying. It's that this world is set up for certain people, and when you're confronted with that, you realize how incredibly inconvenient, but then taken to an extreme, sometimes dangerous or isolating, it robs you of opportunities. You could get your cheese sauce other ways, but sometimes we're talking about privilege that you can't just replicate that easily. I just feel like I have had weirdly effective conversations about privilege using left-handedness rather than something that people are immediately gonna associate it with, sort of political identities and therefore kind of be on opposite sides and, and never the twins.
Alison Gill:
Right, right. And there's no element of blame here, right? I mean–
Maya Rupert:
Exactly.
Alison Gill:
People realize that left-handedness is not, like, an actual factor for someone's competency, or whatever. Absolutely. Thanks for telling us about that. That's really helpful as a metaphor.
Maya Rupert:
Will talk about being left-handed anytime <laugh>.
Alison Gill:
So, turning away from the left-handed matters, Maya <laugh>, you've been engaged in the reproductive rights care advocacy world for a really long time, having worked in leadership at the Center for Reproductive Rights, and I think now you're on the board of the National Women's Law Center. Is that right?
Maya Rupert:
Yes.
Alison Gill:
So, I'd love to hear your perspective, the movement and where it is now post Dobbs. There's been so many developments in the field over the last few years, and the Supreme Court unfortunately isn't going away anytime soon. So, what's next for the movement? Do you have any ideas?
Maya Rupert:
I think anytime you have this much challenge, there's opportunity there, and that's the part I'm trying to focus on. But I think we have to be realistic that this is gonna be a period of loss for the repro movement broadly. Look, the Dobbs decision where we lost Roe versus Wade was just an absolute earthquake, and I think we're still reeling from it as a movement. Unfortunately, I don't think we've seen the, sort of, the worst of what we're going to see in a moment like this, right? Already, 14 states have now completely banned abortion since the Dobbs decision. That represents millions of people who are of reproductive age and ability, who do not have access to the healthcare that they need. Those 14 states, those are the ones that have banned outright. We have many more states that have significantly restricted, and when we're talking about, you know, six week bans, bans that really operate as full bans for a lot of people because, at six weeks, at eight weeks, a lot of people just don't know they're pregnant, and so what we're talking about is so, so many people who will not have access to the care that they need are gonna have to make decisions about where to live, where to go to school, and that in and of itself is hard enough. But for every person who has to make that decision, I think we also have to remember there are people who are not in the position to make a choice about it. They're going to live where they're able to, they're going to work where they're able to, and that just means they are going to have to give up access to needed healthcare. It means that they're gonna have to rely on a patchwork of laws across the country that are incredibly unclear, that vary from election to election, and live with a huge amount of uncertainty and fear, and I think that we're going to see more and more that that makes it impossible for people to fully participate in society for any number of reasons. I know we're gonna talk a little bit about some of the cases that we're seeing come forward, but I, I just think it's so important to remember that anytime we talk about the big cases and stuff we're hearing about a lot, behind those are so many other people who are experiencing similar losses and aren't in a position, for whatever reason, to come forward to talk about it publicly. And so, I wanna underscore the danger of the moment, even as I genuinely do believe there's an opportunity here for us to then look forward and say, okay, even with Roe, things weren't perfect, so what more should we be building toward? And I think that's a big part of where we are right now too, but I just don't wanna lose sight of the fact that there are a lot of people right now who are living at just huge amounts of risk.
Alison Gill:
And you're right, and we're actually, we're only sort of beginning, if you think about it, the post Roe era, unfortunately. I mean, there's so many other issues that are going to be impacted, like people crossing state borders to access care. We're gonna be talking about a minute, but, like, medication abortion and restrictions on that in different states, doctors fleeing states and not being able to offer care at all. This incredible negative impact on maternal health, especially among black women. I mean, there's just issue after issue that this is just gonna impact in negative ways.
Maya Rupert:
Absolutely. That's the hard part. It's so easy to focus on the loss of access to abortion, which is huge in and of itself, but how that's gonna reverberate in so many different ways is huge, and it will take years and cycles to fully understand. And so it's just, it's about, you know, making sure that people sort of keep, keep that focus. We have not seen all of it yet.
Rebecca Markert:
I like the way that you phrase that too, because I think all of us, I mean even in the work that we do in church state separation, we have been licking our wounds and trying to figure out what to do next and focusing on the loss. But really this is, like, just the beginning and, in particular, when you are looking at reproductive rights, the fact that the Supreme Court took two more abortion-type cases within two years of the Dobbs decision is very indicative of the fact that they're not done yet, and this is just the beginning.
Maya Rupert:
Absolutely. I mean, I think it's incredibly telling to see what the court wants to do, how it's shaping its docket. Dobbs happening, and then immediately us seeing two accepted cases that would represent huge efforts to continue to sort of chip at those rights: it's very telling, both from what the court's willing to do, but I also think it is so important for us to look at what is happening right now as a full ecosystem, instead of, “here's an attack here,” or “here's an attack here,” to really understand what opponents are doing right now. This is a, this is a full court assault that is, yes, it's, you know, it's, it's coming for right to access to abortion, then it's coming for medication abortion. And simultaneously in states where abortion is now already banned, trying to make it even harder to access even the narrow exceptions that have been carved out, and then at the same time, sowing the seeds within the Dobbs decision of the other rights that are now at risk. In Thomas's concurrence, he mentioned birth control, he mentioned relationship recognition, marriage equality, but, but bigger than that, right? What they are talking about is a much larger attack on civil and equal rights and liberties that should be sounding a big alarm for us. So when we see these cases get accepted, when we see these cases get brought – even the ones that sound ridiculous out of hand, that you're just like, wait, why, I mean, that, that's, of course that's not true, that's not constitutional, that's not legal – some of these things would not have passed the laugh test five years ago, but they kept bringing 'em, and they kept bringing 'em, and now they're before the Supreme Court. So, I think we just have to look at that, like, zoom out and look at the larger thing that we're, that we're dealing with, because what I think opponents of equality have done for so long is have this broader framework and, and really sort of be laser focused. And because I think we tend to be a much more diverse movement – the social justice movement looks at a lot of issues and is trying to protect a lot of people – we just have more priorities. And it's like they treat this as one priority and just all of our communities are a different setting to sort of push forward that agenda. So I just, I think that's something they've done well and something that we would do well to approach it in a similar way, to just understand that this is a part of a much, much bigger attack.
Alison Gill:
Well, speaking about ridiculous, why don't we turn to the Supreme Court case we wanted to start with today. There's a recent case concerning EMTALA, the Emergency Medical Treatment and Labor Act at the Supreme Court, which is Moyle v. UW, sometimes called Idaho v. US, I believe, which had an oral argument near the end of April, and for which we're expecting a decision sometime within the next month or give or take. Maya, can you start by talking about what EMTALA is and why it's important?
Maya Rupert:
Sure. So, EMTALA is, basically, it's the federal law that says that when someone comes to a hospital – and this applies to the vast, vast majority of hospitals, but basically it's any hospital that receives federal money for Medicare, Medicaid – if someone comes to a hospital and is in need of emergency care, stabilizing care, they have to be given that treatment. It is, formerly, a pretty straightforward and non-controversial idea that our hospitals, when someone comes seeking care and they're at risk of death or serious harm, that they will be given stabilizing care. The challenge here arises from the fact that abortion, despite the fact that so many people treat it like it's some sort of mystical thing that happens, is a form of healthcare. It is the accepted standard of care for a number of situations for people who are pregnant. People come, and, and I think this is one of the difficult things to talk about with abortion as well: abortion is a, is a pretty common feature of intended pregnancies, right? People get pregnant, intentionally want to have a child, and because things happen, abortions happen as regular course of intended pregnancies. So, it was not a controversial idea that sometimes the proper treatment for a medical condition is an abortion. The problem is, Idaho has one of the strictest abortion bans in the country right now and has very, very narrow exceptions for, basically, life of mother.
The case arose from the government saying, if someone comes and EMTALA would require you to treat this person, but a state abortion ban says you're not allowed to, that is a conflict. Federal law should preempt state law, so in these moments, the federal requirement that, controversial as it may seem, that healthcare providers provide stabilizing treatment for someone who needs it, needs to control in those situations.
Rebecca Markert:
So, this is a case where the Biden administration sued the state of Idaho saying that EMTALA trumps the Idaho law that makes it a crime to provide an abortion except in a handful of narrow, very narrow circumstances, as you mentioned. It's a very strict abortion law, abortion ban. We should probably explain what preemption is for all of our listeners who are not lawyers. But the constitution contains a supremacy clause, and that clause makes it clear that when there is a conflict between state and federal law, federal law controls – in other words, federal law is supreme – but that alone doesn't necessarily decide the issue, because courts have clarified that federal law will preempt state law only in certain circumstances. So, federal law can expressly preempt state law when a federal statute or regulation contains explicit preemption language: the law says we preempt state law, or federal law can do it impliedly, when the structure and the purpose implicitly reflect Congress' intent to override that state law.
There are two types of implied preemption: a field preemption, when there is a pervasive scheme of federal law that implicitly excludes a state role such as immigration. In the case of immigration, federal law is dominant in that particular area, so that's field preemption. Conflict preemption is when compliance with both federal and state regulations is impossible, or when state law poses an obstacle or frustrates Congress' objectives. So the question here, in this case, is whether EMTALA, a law which requires hospitals that participate in Medicare to provide necessary stabilizing treatment in an emergency, overrides the Idaho state law that bars abortion. This ruling could affect 22 states that have imposed restrictions on abortions, as Maya mentioned. There are many restrictions across the country and, in particular, six states like Idaho that lack exemptions to protect the health of the mother. And that is something I think that we also need to note and talk about maybe a little bit later, that there's a difference here between the health of the mother and the life of the mother. Idaho's law bans abortion, even where the mother's health but not her life is at risk.
Liz Cavell:
That's so huge to just pause on.
Six states in our country ban abortion, including in cases where the mother's health is at risk and not until her life is at risk, is the exception to the abortion ban triggered. And so what we have here in the case of EMTALA, like Rebecca's describing, is a conflict between the law, EMTALA, that Maya described, which requires emergency room caregivers and doctors to provide stabilizing care. Stabilizing care, meaning, a patient comes in with an emergency medical condition and, even if their life is not threatened, they still have a right to be stabilized, and even if that stabilizing care involves abortion care. In Idaho, obviously there's a conflict, because in Idaho it is literally a crime to provide an abortion unless the life of the mother is at risk so there's a clear conflict there. And, of course, we can't expect our emergency room doctors to, sort of, take their livelihoods and their freedom in their hands and provide abortions where they, they can't necessarily determine whether it's necessary to protect the life of the mother, but, but it clearly is something that's in the health interest of the patient and is part of stabilizing care. When you pause to just sort of reflect on what is being deprived <laugh> from women that live in these states, it's really astounding and scary.
Maya Rupert:
I think, again, zooming out on this and looking at, at how this is playing out, not just in Idaho, but across the country, the tough thing about the difference between health and life is that it's not a bright line, and it's not as though there's this clear moment. So, while, Liz, to your point, we can't expect providers to take their livelihood to risk it, the thing is, even if they are willing to, the point by which you start risking your livelihood is not clear to anyone. That's part of what we're seeing, over and over again, is the Center for Reproductive Rights has taken a number of cases where plaintiffs have been told, we need to wait until you get sicker. Like, someone was told, “we have to wait until your septic,” because, because I don't know if this emergency medical condition rises to the level that meets the, I mean, and, and healthcare providers having to be little, like, mini, like, statute interpreters in the middle of these harrowing experiences is not what anybody wants. The lack of clarity, what we have is it's a medical emergency and it's a legal emergency. People don't know if they're complying with the law right now, and that is a huge, huge problem that, again, it's Idaho, but it is happening. We're seeing this across the country, and I think we saw that even in the oral arguments. In some of the conversations people were having, it was this very confusion being played out. The justices were confused. It seemed like the lawyers were confused as to when these exceptions actually apply.
Alison Gill:
Maya, that is such a great point, and it's one I hear all the time echoed by, like, anti-abortion people like saying, oh, well, you know, these laws don't require women's health to be in danger. They all have exceptions. Doctors just aren't obeying them, they're just not complying with them. They're sort of cowardly, they don't wanna do what's required, but that ignores so much. It ignores, first of all, hospitals make decisions about risk, doctors don't. They have lawyers and teams that are, sort of, assessing these things? Right? And second, who's gonna oversee them? Well, the anti-abortion prosecutor, it's gonna make a name for prosecuting doctors who kill babies. They're the ones who are gonna make a name for, so even if they are, are correct and, objectively, they could still be prosecuted, which could destroy their career and cost millions of dollars. So this is an inevitable consequence of anti-abortion laws. It's an inevitable consequence, and I just don't think people really understand that.
Maya Rupert:
Absolutely, and I think that's such a good point. And one of the weirder moments, I felt like, in the Moyle case was when – and now I won't remember which Justice asked – basically, well, when do these exceptions apply? And the Idaho attorney seemed to be arguing for at least a little while there, well, it's up to prosecutorial discretion.
Liz Cavell:
Yep. Well, but he also wanted to argue, kind of, out of the other side of his mouth. He almost was half arguing, in my view, that the conflict between the laws isn't actually as profound as what's being argued by the United States. He's sort of leaning on, well, the exceptions are already built into the law. And, you know, doctors can make these decisions, and the law's not interfering with that, and no one said they have to wait until they're, they're dying, and it's all about, you know, the doctors can use their judgment, but at the same time admitting, of course, just belying the notion that, like, there's any safety in those exceptions for anyone involved, because any prosecutor anywhere in Idaho can go after a doctor based on their own interpretation of health and life and what was done in a given situation. And so, you're right, Alison, this whole situation is just a massive indictment of the idea that going back to a pre-Roe world is workable. It's just not going to work, because there's no baseline protection that anyone in the system can rely on. There's too many people in the doctor's room: there's prosecutors, there's lawmakers, there's judges. There's no room for that many decision makers in this decision.
Alison Gill:
Yeah, that's a great point. I'm curious, Maya, maybe you could talk a little bit more about Idaho's argument here. I think that will help lay out the case before we get into oral arguments.
Maya Rupert:
Sure. So I think Idaho, well Idaho is taking, to Liz's point, I think a couple of positions, not all of which feel completely consistent with each other. But, basically, they are taking the position that, that EMTALA does not preempt the Idaho law, that the state has the ability to, sort of, regulate when an abortion would be acceptable and that they have done so, that they have carved out these narrow exceptions, and that there is nothing express- expressly preempted by EMTALA, and that, that, basically, the state law should be able to stand. Interestingly, I think Idaho also made an argument that, it sounds like it was not fully briefed, but they, they got into this a little bit during the oral argument that basically, by relying on the spending clause in order to pass EMTALA, basically the federal government does not have the ability to regulate in this area. Because essentially if a state passes a criminal law that says this thing is illegal, the federal government cannot say, well, you have to make it legal, otherwise we won't give you our federal funds. It's a different way of getting about this, getting around this issue, but it was one that it seems like at least some of the justices seemed compelled by.
Alison Gill:
I know Alito did. Justice Alito made the spending clause argument. Basically, the theory is: if the state didn't take the money, then why is it subject to EMTALA? Basically. So, they're not receiving money. The, the regulated entity under EMTALA is not the state, it's hospitals. So, why are they even here in court when the hospitals are regulated by the federal government, not the states? Right? And I love the way that the solicitor general basically eviscerated that, frankly, that ridiculous argument saying a supremacy clause means that the state cannot undermine the federal law's purpose by regulating the entities that are receiving federal money. In this case, Idaho hospitals are receiving money through Medicare, so the state can't just step in and frustrate the federal government's purpose by imposing a whole new regulatory scheme, after the federal government sets it up, that would undermine the entire point of the supremacy clause and the federal law. Right? So I think it was mostly Alito. I didn't see a lot of other justices pick that up.
Liz Cavell:
Gorsuch definitely liked it. He stepped in during that line of questioning. I think Justice Gorsuch stepped in to jump on that bandwagon and say it's the federal government, you know, it's this whole federal government overreach, and are they using their funding power to just take over all of the medical regulation that a state does? And of course that's all nonsense, and I think that's what the solicitor General was saying. There's nothing approaching that that's happening in this case, right? And, and what's happening in this case is not unique or controversial, like Maya said. Like, there are so many laws that rest on the spending power of Congress, right? That's how Congress can set up these uniform regulatory schemes that make it so that the standard of care is the same for people that are dying in an emergency room in Arkansas or Idaho or New York or whatever, right, that we want it to make sure that nowhere in this country is it okay to deny stabilizing care in our emergency rooms. And so there's nothing unusual about Congress using its spending power in that way. This is just, I think, one of the brainchilds of the ultra conservative justices to say, “actually this whole method of law making is an overreach of federal law.” And actually, you know, it's gonna turn into: Congress can determine how doctors are regulated in Idaho and how the whole medical establishment is regulated. And of course, that's not what's being done here.
Alison Gill:
They love to invent these sort of obscure structural arguments. I'm thinking of the Major Questions Doctrine. It's just full cloth. Why not just invent different parts of the constitution that, you know, there's language here, we should use it all, right?
Maya, I'm curious. Idaho claimed at one point that EMTALA could never preempt a state law that sets a standard of care, even if there was no exemption to an abortion law to prevent death, for example. So even if there was no exemption, EMTALA still couldn't step in. Basically that's up to the states if they wanna allow death, that's their prerogative. I'm just curious what you would add to that.
Maya Rupert:
Then EMTALA is not a thing, right? If it is genuinely possible for states to say, “right, we have literally no standard of care, someone can come to an emergency room, need stable – not stabilizing care, lifesaving care – and not receive it,” then what they're saying is that it is, it is impossible. It is unconstitutional for the federal government to try to create a floor by which people cannot come and seek emergency care and not receive it, right? Like that, that they're saying that's not something that the federal government is allowed to do. And these are the kind of arguments that I feel like should have taken to it, it's, like, far flung conclusion, taken to its logical conclusion, that just means EMTALA, like, it, it would render it completely meaningless. And that is the kind of argument that feels like it shouldn't have made it this far and it still did. So, I think it tells us where the anti-abortion folks who are bringing these cases are, and it's telling us how these justices are willing to shape their docket, that these are the kinds of arguments that can be seriously entertained
Liz Cavell:
On that point, Maya, our episode last month, we talked about the mifepristone case, and we spent some time musing about the oral arguments that took place in that case, and a big thing for us is just kind of stepping back and pointing out, because so much of the discussion, our discussion was about how absolutely absurd the theory of standing and injury and just the theory of law the entire case was brought on, is just so fundamentally flawed. But just the fact that also the Supreme Court, they didn't have to hear oral arguments on that case. They could have disposed of that case in so many ways that fell short of giving any airtime in the courtroom to both standing and the merits of some of the questions in that case, but they didn't. They chose to allow briefing on both the standing and the merits questions. They chose to dedicate oral arguments to those questions. And we're gonna see opinions and concurring opinions and dicta and all of the things on those questions, when the entire case is predicated on just an absolute garbage theory of law that should not be anywhere near a courtroom, let alone at the highest court in the land, getting a full hearing in front of the entire nation.
Maya Rupert:
Exactly. And I think, and, I feel, it feels so weird to say this kind of thing because it feels almost conspiracy theory level, but I don't think that it is, I think what we're seeing in real time is an architecting of the arguments that conservative justices and the people that are gonna be bringing these cases, it is, it's building out the infrastructure through these kinds of pieces of case law. Because you're right, there is no genuine reason that this case should have got- it, it would've been the most straightforward: obviously they lack standing. It could have gotten brushed away without a second thought. But instead, we're gonna get all of this jurisprudence that is going to signal where the justices are, where the fault lines are, how to architect the next case that can get through it. And we're seeing it happen in, in real time, and the justices are participating. They are being a part of the creation of this kind of infrastructure, and it is, it is so disturbing in a moment where we are seeing how fragile, in a lot of ways, our rule of law is, our democracy is, our institutions are losing so much of their stability, so much of what made them something we can rely on, and we are going to pay a price for that. I think you're right. I think what we're gonna see in June is, basically, the makings of the next version of the case that will possibly be more effective in actually banning medication abortion. And so it's, it's hard because, based on that oral argument, based on the briefings, I just sort of thought, look, this is probably not gonna be a case that, in and of itself, is successful, but there's a lot of damage they can do even by not winning an a single case, and I think that's what we have to keep our, our eye on.
Rebecca Markert:
Isn't there also a procedural problem in the EMTALA case too? Because didn't Idaho go back and change the law and where this case is procedurally, you know, they went up on appeal of a stay of the law while it's pending in the courts below. And so, now that the facts have changed on the ground, this case is another case that shouldn't be before the Supreme Court, but the Supreme Court's still hearing it. Isn't that what's happening?
Maya Rupert:
Yes, they did. They did. They went back to clarify and make the exemption slightly broader. I think the argument has still been, it's still, it would still be preemptive, but you're exactly right. In a different, in a different time, and with a different court they would say, you need to retry based on the facts on the ground, not we're just gonna keep going with it, which, again, just undermines the idea that everyone's minds weren't made up before. If a significant fact can change, and there is not, the proper procedural reaction would've been, well then we can kick it back. It's, it's no longer ripe. I know there are a lot of people who've been talking about expanding the court in, in, you know, putting in term limits and things like that, and one of the things that we always hear when people bring that up is that it will turn the court into a political football. It will turn it into something that we can't rely on. But when we see moments like this, it feels like we might be protecting the sanctity of a court that doesn't exist any.
Liz Cavell:
100%.
Maya Rupert:
Because these are the kinds of things that make it feel like this is not an institution that we can rely on, in the same way. Expanding the number of justices or implementing term limits is not the thing that's gonna make our Supreme Court not reliable. Our Supreme Court going through the motions in moments and, and signaling to some people, “Hey, if you wanna do something, here's how you do it,” through case law refusing to just apply the law as it plainly is, that's what makes us lose faith in an institution.
Alison Gill:
Following on that thought and regarding your early discussion regarding architecting, I was especially concerned to hear the discussion around banning trans medical care across the whole country using the spending clause, because I, I mean, that's a pretty clear indicator. Like, this is something we'd allow you should, you should think about this. It's amazing how, first of all, they always come back to that issue and manage to sneak it into every freaking case. Like, it's not even relevant, but let's get it in there for the political, I don't know, winning. And then they're just maybe setting up for a future case where such a law has passed, aren't they?
Liz Cavell:
Well, and if I'm remembering right, Alison, I think the response from the solicitor general was like, “Yeah, I guess Congress, if it just decided to be as insanely anti-trans as Arkansas, I guess they could use their spending power to ban gender affirming care if they had a spending clause hook on which to do so like Medicare or Medicaid spending.” That's not a useful hypo, that's just activists bat signaling to the radical conservative base that so many of these justices are. Frankly, they're a part of it. Maya, you're saying that politely, and I'm saying it flat out: they are part of, they are part of the anti-abortion movement. I mean they are. What, what else, how else do you explain these lines of questioning, these concurring opinions, these signals that don't have any useful application to deciding actual issues that actual people are facing? I mean–
Alison Gill:
Yeah, right.
Maya Rupert:
And, and the hypothetical could not be, could not be less useful because it's a literal opposite situation. There's no condition for which denying gender affirming care is the proper standard of care that is accepted. That's not true. And in fact, the reverse is true, right? So that is a medically necessary care. So, just using it is betraying the entire thing. It is a reverse hypothetical that they just threw in there exactly to signal, okay, well this is something to consider. And so, it is, I mean that level of bad faith is just obliterating what, whatever, whatever faith people still had in this as an institution, which is terrifying because we are going to have to keep getting decisions from this court, and if people are this unserious this very clearly political, something has to change.
Liz Cavell:
Well, Maya, you reminded me of something else that really just made me scream during the oral arguments, which was speaking of, like, bad faith. There's all of these bad faith reasons why this court majority takes these cases and gives them a full argument and briefing. And one of them really feels like it's using oral arguments to spread misinformation about these really hot culture war-type topics. So like in this oral argument on the EMTALA case, there was that whole line of questioning where the attorney for the state of Idaho and some of the conservative justices, of course Alito and I can't remember who else going on this whole hypothetical quote unquote path of, well, does the health of the mother in EMTALA mean mental health? So you have a seven month pregnant woman who's like, I'm depressed, and then she gets an abortion. Like, ah, right. It's, literally, that's just a misinformation campaign, right, being spread at, at oral arguments in our highest court in the land, talk about unserious, not useful lines of hypothetical questioning. And then, you know, you have the Idaho Attorney General being like, thank you for that question justice. You're right. I can't think of, I can't think of any interpretation of EMTALA that wouldn't result in an abortion in a mental health, you know, sad woman. It was just, like, absolute misinformation, you know, nutso, and here we are at oral argument in front of the US Supreme Court.
Maya Rupert:
Right, right. And just the question, just the speculation, that's enough for someone to grab it, to get it in a fundraising email. You're right. It's such a, it, it is such a powerful tool that is being so gleefully mishandled and misused and doing it, I don't wanna say sort of quietly – I mean it's obviously happening, we're all seeing it – but we can't just call it what it is. And, and that is what has been so damaging about this, is that we still have to put on this veneer of “no, no, no, this is how the Supreme Court works,” when this has never been how the Supreme Court works..
Alison Gill:
One thing to note is that Idaho's position on how EMTALA requires treatment of a fetus and how that should shift interpretation of the statute, Justice Alito and its Solicitor General Prelogar really got into a back and forth about this quite a bit. So, I'm curious, Maya, maybe you could explain what they were, sort of, talking about and what was the contention here?
Maya Rupert:
Sure. This was Alito's question. We're talking about providing life-saving treatment, but what about the unborn child? The unborn child is mentioned in the statute. Why aren't we talking at all about their right to life saving treatment? The Solicitor General, I think, masterfully cut through that and said that the point there, which we all I think sort of know, is that there are times where both the health of a fetus and the mother are at risk. It's going to be one of the most tragic and harrowing moments where, what, where, basically, a decision needs to be made and only one can be saved, and that the statute still requires for a healthcare provider to inform the mother of that and respect her choice. That the issue is. But at no point does a pregnant person give up their right to life-saving treatment because there is a fetus involved as well. That, that it, basically, that right extends to both, not the mother gives it up in favor of the unborn child. It was, honestly, I'm having a hard time explaining exactly what the argument was, because it was nonsensical, and it was something that I think we all know why that language was included and, it was just a really craven use of a, a provision that we, we know why it's there.
Rebecca Markert:
And I do think she masterfully answered that line of questioning by Justice Alito, and I want to just read it for our listeners because I thought that she did a great job explaining it. She said, "the statute did nothing to displace the woman herself as an individual with an emergency medical condition. When her life is in danger, when her health is in danger, that stabilization obligation equally runs to her and makes clear that the hospital has to give her necessary stabilizing treatment. And in many of the cases you are thinking about, there is no possible way to stabilize the unborn child because the fetus is sufficiently before viability that it's inevitable that the pregnancy is going to be lost. But Idaho would deny women treatment in that circumstance."
Liz Cavell:
And then in brackets it's, “you idiot, you know nothing about pregnancy, childbirth or being a person who can give birth.”
Maya Rupert:
Or sadly, you do, and you are very cynically pretending to be confused in order to confuse people who are listening.
Liz Cavell:
Right, right. Well, it's also not a legitimate line of questioning, like you said, Maya. It's just doing the anti-abortion fetal personhood talking points, because, literally, that is what Justice Alito views as part of his project, is getting all those, all the greatest hits out in the oral argument. It's argumentative. It's not, it's not genuinely searching and probing the boundaries of the legal theories being argued. It is just him making arguments himself. And it's through the language of fetal personhood in order to speak to those fellow anti-abortion, you know, movement activists
Rebecca Markert:
And confusing the issue again, because, I think, this is another thing that we need to pause and reflect on, that this is not about elective abortions. These are emergent situations and, like you mentioned Maya, at the beginning of the show, many of these, a lot of times, are emergent situations involving intended pregnancies where the fetus is not viable, and it's very sad that they are throwing out those fetal personhood talking points, when a lot of times what we're talking about are very tragic cases.
Liz Cavell:
Right.
Alison Gill:
The other issue that arose during the arguments was whether EMTALA requires Catholic hospitals to provide abortion under some circumstances despite their religious objections. So, Maya, I would like to ask you a little bit about how EMTALA interacts with federal denial of care laws like Weldon and Coats-Snowe, and maybe just, it'd be helpful just to give a, a little brief thing about what those are before, before discussion.
Maya Rupert:
There has long been case law that allows conscientious objections to providing healthcare and, basically, hospitals just need to have an ability to say someone can still receive care, and an individual can opt out of being the one to provide that care. And EMTALA would, there wouldn't be a conflict there. People would, if someone had an ethical concern about providing an abortion, they would be able to, as they have been for years, to opt out and the hospital would just need to be able to provide some provider who would be able to do it.
Liz Cavell:
Right. Kind of importantly, that can involve transfer, even in the case of Catholic hospitals. Because I think this is another one of those, I don't know if, like, red herring is the word, but Alison you kind of brought this up as sort of dovetailing with what was seemingly being set up in the mifepristone oral arguments to this idea that there's this whole conscience based exception, basically, to EMTALA compliance, and so, therefore, it's not in conflict with all of these things that are trying to be accomplished in the mifepristone oral arguments in regards to conscience based objections. I can't remember exactly, Alison, what got us down that path in the mifepristone questioning, but you were making the point that, like, it was pretty alarming, the box that was kind of being drawn around Elizabeth Prelogar, the Solicitor General was arguing in the mifepristone case as well, and sort of being asked to draw a circle around both the government's argument and EMTALA, and what they were arguing about the merits of the mifepristone case and the FDA's authority and so on and so forth, all in the context of appeasing the judges', just, desire to have further and further expanding religious based exemptions to, you know, every law there is under the sun. And so, I do think that was, kind of, a huge feature of the EMTALA oral arguments too, was this whole section of the oral arguments that was dedicated to, well, what about conscience based objections of both providers and hospital systems, right, because we have so, so many Catholic owned hospital systems in this country.
Alison Gill:
Yeah. I think Idaho was trying to draw a dissimilarity between how providers are treated under the government's conception of EMTALA versus how hospitals are, and then the Solicitor General basically says no, there are federal conscious protections that apply at the entity level – that means to hospitals – as well. So, I mean, that's the position they staked out as a fed, as a federal government, that there's some hospitals that that basically can exempt themselves in certain ways, and I think that's, that's concerning. They sort of back them into a corner. You've been working with repro groups for a long time. Is that, is that a new position? Is it one that's sort of kind of gonna be controversial? I'm just curious if you have any thoughts on that.
Maya Rupert:
Yeah, I mean, I think that the idea of complete exemption of hospitals does feel new. For a very long time it has been sufficient to just say individuals can opt out and there are ways around it. And yeah, if there were, sort of, no individuals available, transfer was an option, but not usually from a, no one at this hospital, hospital or the entire hospital has opted out. I think it will be if we start seeing that at a larger level. Yeah, I think that will be different, and I think we'll have to see how it plays out in practice.
Alison Gill:
Yeah, absolutely. It's just something worrying for the future, I think because there's so much, so much of the hospitals across this country have been bought up by Catholic hospitals. There's been a huge expansion over time. There's this terrific report called Bigger and Bigger, the growth of Catholic Hospitals by Community Catalysts, and you can show the percentages in each state that have been brought out by, by Catholic hospitals and others that basically say, well, we're gonna limit access to abortion, to, to various treatments for contraception and various other things, so it's really kind of disturbing, and that's becoming more and more of an issue.
Maya Rupert:
I think at some point it's gonna have to come to a head, and there's a real question of if these hospitals are no longer able to provide healthcare in the ways that, that are needed, what, what happens if, you know, I mean, there's- there has to be a limit to that. The state interest, everyone's interest is on the continued provision of healthcare. So if that starts to, to really create an issue, I think, yeah, I mean agreed. I think, I definitely think it's something to look out for and something to raise an alarm about.
Alison Gill:
Another major part of your work, Maya, has been running campaigns for and supporting candidates for elected office, and you've run some really pretty major campaigns. Can you tell us more about what that looks like?
Maya Rupert:
Sure. I think for a long time in my career, I would never have thought I was gonna go into, like, electoral politics, right? I loved social justice movement work, and I really kind of felt like that was probably the path for me given what I wanted to, to do. I feel like I got really lucky when I met Julian Castro and kind of with him found a politician who talked like one of the people I was used to working with, right? Who wanted to talk about social justice and bring, and raising up all communities and really run like a, an unapologetic progressive. And so he and I worked for him when I was at HUD, and that's how I got to know him and just really loved him and loved what he wanted to do. So when he ran for president, I went to go manage his campaign, and it was one of the absolute best experiences of my life – professional life, but life in general – and I'm so proud of everything that we did on that campaign.
Obviously we didn't win, but I feel like it's not like we lost, right? Like I feel like there were so many issues that he talked about, that he championed, that people did not think could be the basis of a major presidential campaign. And we made them so, and, and were really able to help shape the field and shape the way that people were talking about a lot of issues that usually didn't get that kind of airplay at that level. Yeah, it was, it was great. It was an incredible experience. After we withdrew, I went to go be a senior advisor for Elizabeth Warren, and I honestly had that feeling all over again where I felt like I got to work for someone who did not, you know, really, really did not make me feel like I had to make a choice between my animating values and what I was doing on a day-to-day basis.
And I decided one more time, I kept saying I felt like I've gotten lucky with the best bosses, I should quit while I'm ahead, and then I went to go work with Maya Wiley in New York City and, I think, again, I just feel like we ran a campaign I was just so, so proud of. And I really do think that there is something about the moment that I, kind of, entered intellectual politics that I think I got really fortunate because I feel like there were more people who were willing, willing to run for the same reasons that a lot of people engage in social justice work in general, right, like, but doing it from the place of a politician as opposed to an activist or an advocate. So, that was a really cool moment for me because it felt like getting a chance to bring together a lot of things that I felt really strongly about and passionately about in a completely new arena.
Alison Gill:
That's fantastic. Before we go too much further, I should just point out that all of our organizations are nonprofits. We're 501(c)(3)s and therefore we're nonpartisan. We don't support any, engage in any electioneering activities, don't support any candidates for office. I think FFRF has a 501(c)(4) wing, but I don't think you work for that, do you Liz?
Liz Cavell:
I do not, and, importantly, they are not a sponsor of this podcast. Our (c)(3) arm is, so we are always disclaiming we are (c)(3), and we are not electioneering.
Alison Gill:
Perfect. Well, thank you. Just to make that super clear. So, Maya, what do you look for when you decide to support a candidate, and are you considering any for this election season?
Maya Rupert:
So, whenever I decide to work for a candidate, what I wanna hear more than anything is kind of what I alluded to with, with what I said about Julian is that we didn't win, but it's not like we lost. I wanna know, everyone can tell you what they'll do if they win, otherwise they really shouldn't be running. That's one of the questions that everyone can answer. I wanna know what people want if they lose. What will they still feel like they can walk away from this with? What are they trying to build? What are they trying to do? Because if I feel like there is a sense that this is about more than that, I feel like that's something that I can help someone build. So that's probably the biggest thing, is like, what is the loss scenario? What do you want people to say about this campaign, about the way you ran, about the issues that you talked about? What is in this beyond just winning? And like I said, I feel like I've gotten really lucky with the people that I've worked for so far. I'm not planning on, on doing anything, like, specific for this cycle. I am an excited spectator this time and will be a very enthusiastic voter. But yeah, I still definitely will talk to candidates and things like that and I'm very interested to see some of the folks who are running and doing really exciting things. I'm particularly really interested, I'm always really interested in down ballot races, especially in presidential election years because it's so easy to just focus on that fight at the top of the ticket, and I feel like there are so many of the issues that we're talking about on a daily basis that really are impacted by people who are running at state and local levels. So, I think there are some really great people that are running and, I'm just really excited to see what is motivating the people that are running at those levels right now and what they're thinking about for their futures as well.
Alison Gill:
Well, that's fantastic, and it leads us to your podcast. I'd love to hear more about your podcast, When We Win, and what inspired it, and what are you hoping to convey to listeners?
Maya Rupert:
Yeah, so, When We Win really came out of this idea: I wanted to feel hopeful about politics. I wanted to feel that thing again, this cycle, and for me, a lot of what that is is there are so many people who are running and challenging this, kind of, what we have as the political conventional wisdom, which I think is really exciting, because I constantly hear people talk about the fact that we want new leaders and we want a more representative democracy, but then, when people run, we have such a professionalized way that we do politics that we basically tell these people, well here's the playbook, and you've gotta do the same thing everyone has done, and we are not always going to get the new leaders that we want and that I think we deserve if we tell them they have to run the exact same campaign that everyone has run, because that playbook was not set up for them.
So, what I wanted was to talk to some people who had challenged that, who had not done something that everyone said they had to do and won, right? I wanted to hear some of the stories that were coming out of places that were making people feel inspired and hopeful and there's more to our politics than the kind of day-to-day, almost sports score way that they get covered, that sometimes the most exciting stories that are happening in our politics are like, you haven't heard about them. And so that was the idea behind it. So, it is out now, it is available wherever you get your podcast, and it's limited series too. So, that was the other thing, is that I wanted to tell a very sort of specific story so you can listen to it now. We will have one more episode that will be a wrap up episode after the election in November, but it's out now, and it was an absolute blast, and it gave me exactly what I wanted, which was that I felt hopeful, I felt excited about what people were doing, and yeah, I just, I felt like I needed that a little bit and, and these were guests that really gave it to me.
Alison Gill:
Do you have any favorite guests you'd point our listeners to?
Maya Rupert:
Our first episode, Mitra Jalali and Cheniqua Johnson were the two guests that we had on our very first episode. They're members of the St. Paul City Council that just was elected in this last cycle. It is an all-woman, mostly women of color, like, young, disproportionate. They're like, I can't remember the exact numbers, but they're an all-woman, mostly women of color, a number of them are queer. They are still paying off student loans. They are renters, they are people who are dealing with the issues that so many people in St. Paul are dealing with, and this is their entire city council, and they are incredible, and they are approaching this position of leadership with so much honor and excitement and, just, abundance and enthusiasm, and it is contagious, and it is incredible. And it was so cool just to talk to these young women about how they decided to run and the way they ran together, and look to each other as partners and mentors. So many times we get told that the only way to do politics is it has to be zero sum because it is by its nature of competition, and they did not do it that way, and they won together and they are winning for their city, and it's just, it was such great conversation.
Liz Cavell:
That sounds awesome.
Alison Gill:
That's amazing. Alright.
Maya Rupert:
It was really cool.
Alison Gill:
Looking forward to hearing it. That's really terrific. So, we often encourage atheists and non-religious people to run for office, and I'm wondering if you have any advice to pass along, or perspective to offer secular people what they consider running for office. Many people feel like they don't wanna talk about their beliefs, even though they're an important part of their identity, or, like, they can be counterproductive. I'm just curious what thoughts you have.
Maya Rupert:
I think that anytime I'm talking to somebody who wants to run for office, being who you are is the easiest thing to remember when you're stressed out, so do it, if for no other reason than that, right? It is, and I say that sort of jokingly, but, but not completely. I mean, I think that if you're gonna run for office, so many things are gonna be asked of you. Freeing yourself up to be able to be exactly who you are is an incredible gift, but it's also a tough one, and I don't say that lightly. But look, I think there are a lot of secular people, and I think there are a lot of people who are really encouraged when they hear somebody else talk about their worldview, and it not be based in a faith community and be able to talk about their system of justice, their philosophies that are so important to them, and not have to hide from the fact that it, it's a non-religious philosophy, right? And I think that it is, it's incredibly powerful for people to see someone doing that and then understand that they can do it too. I think so many times these conversations get stuck where they have been because, not because people wouldn't be receptive, but because we're afraid that people wouldn't be. And so I think if you're willing, if you're able, do it. Run, and talk about why you believe, why you believe, and I think so many times we will be shocked at one: how many people agree with you, and two: how many people don't share that belief, but respect where it comes from. I think very often, I mean this, this idea that like, we are gonna be forever diametrically opposed with people if, if, you know, based on religiosity or non religiosity is, is a thing of the past. And so, I think, very often, what will also surprise you is that people who don't think the same way, it will not impact how people are seeing you, how people are seeing what you wanna do, and I think that's really powerful. I think it's really important for us to show that this is not some insurmountable divide that we need to get past. It's just, we all have different reasons for getting involved in what we wanna do, but we very often end up at the exact same place.
Alison Gill:
Well, with that, I think we are just about out of time.
Maya Rupert:
Thank you so much for having me. I really appreciate it. This was such a great conversation.
Alison Gill:
Yeah, this is great.
Rebecca Markert:
It was so wonderful to meet you.
Maya Rupert:
You too.
Liz Cavell:
I know. I feel the same way. What a gem you are. I can't wait to listen to your podcast.
Alison Gill:
Absolutely. So that's it for today's episode. I really wanna thank Maya Rupert from the When We Win podcast for joining us today.
Rebecca Markert:
I'm Rebecca Markert.
Alison Gill:
I'm Alison Gill.
Liz Cavell:
And I'm Liz Cavell, and if you haven't already, please follow us on our socials. We're on Facebook, Instagram, and X. We also now have a YouTube channel. You can listen to our podcast on YouTube, if that is your thing. Please also remember to let us know how you're liking the show by leaving us a review. You can also find us on our website at we-dissent.org. Thanks for listening.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
