EP. 123 — Confronting a Future without Roe v. Wade with Mary Ziegler

FACT-123-20210920-Ziegler-RCv02-DYN.mp3

Speaker 1 [00:00:22] Hello, and welcome to Factually. I’m Adam Conover, thank you so much for joining me once again. Let’s just jump right into it, because we have an important issue to talk about today. For my entire life, the Democratic Party has been saying that if Americans don’t vote for them then Roe vs. Wade is going to be overturned. That’s been their pitch for basically all of the decades that I’ve been on this Earth. ‘If you do not vote for Democrats then Roe versus Wade is going bye bye.’ Then it seemed like somewhat of an apocalyptic prediction: not impossible, but off in the misty future. Maybe it could happen one day, but that’s just what they’re saying to get everybody riled up. It didn’t seem super likely that a right that was bestowed by the Supreme Court could be overturned that easily, or that at least there were a lot of steps between us and that reality. But lately that reality has seemed a lot closer to our daily lives. In fact, we might be on the verge of stepping over that precipice as we speak. It really does seem like the end of Roe may be upon us and that the right to have an abortion, the right to choose whether or not you’re going to have a child, may no longer be guaranteed in American society. Early this month, the Supreme Court refused to block a (let’s be generous and say creative) Texas bill, perhaps insanely creative Texas bill, that virtually banned abortion in the state using very complicated legal means. We’ll get into those in the interview upcoming, and there’s another case out of Mississippi that is going to be on the court’s docket very soon, and the outcome of that case could determine whether or not Roe is totally overturned by just June of next year. Now, abortion has existed in this country in something of a legal limbo for years. Roe versus Wade; the Supreme Court decision was meant to guarantee that right, but many states have done everything possible to make abortion more difficult. Twenty five states require waiting periods that try to ice women out, like they’re shaky NFL kickers. Does that joke track? My producer Sam wrote that, let me know NFL fans. And 18 states require counseling where women are forced to listen to state mandated bullshit with very shaky medical grounds and in some states in the South – well, forget about Roe. Abortion is already incredibly difficult no matter what the Supreme Court says. The entire state of Mississippi has only one abortion provider. For now, it might be zero sometime soon. The right to an abortion has been hanging by a thread in this country for years, and now it looks like that thread is about to break. So we have to start asking: What will this new post Roe World look like and how did we get here?’ Well, to tell us we have an incredible guest on the show today. Her name is Mary Ziegler. She’s a law professor at Florida State and the author of ‘Abortion and the Law in America: A Legal History of Roe vs. Wade to the Present.’ If you have any questions about this subject, I think you are going to get a lot out of this interview. So please welcome Mary Ziegler. Mary, thank you so much for being here.

Speaker 2 [00:03:28] Well, thank you for having me.

Speaker 1 [00:03:29] It’s obviously been a big couple of weeks at the Supreme Court related to abortion rights. Just to start us out, would you tell me from your point of view: what is the Texas law SB eight and how does it differ from other attempts to curtail abortion rights around the country?

Speaker 2 [00:03:49] So SB 8 is similar in some ways to what we’ve started to see called ‘heartbeat bills’ which ban abortion around the sixth week of pregnancy. And it’s worth just stopping to say what that means. So it doesn’t mean six weeks after you know you’re pregnant and six weeks after your last period. So for most people, that’s going to be like two weeks at most.

Speaker 1 [00:04:10] I didn’t realize that.

Speaker 2 [00:04:11] Yeah, I mean, you have to stop and think about it. So most of these laws criminalized if a doctor performed an abortion after that point. SB 8 is different because it doesn’t criminalize it, and it doesn’t let the state enforce the law. Instead, the only people who can enforce the law are literally anybody else. So if you want to sue somebody in Texas for performing an abortion, when we’re done with this conversation, you can go for it because SB 8 doesn’t stop you. It not only allows you to sue people who do abortions, it also allows you to sue anyone who ‘aids or abets’ someone performing an abortion, which means probably people helping to pay for it, people driving you to the clinic, people Googling where the clinic addresses or any kind of help like that might count too. It lets those folks get a minimum of $10,000. It lets them get their attorney’s fees paid for. If you are sued, you can’t get your attorney’s fees. So it creates a pretty big incentive for people to end abortion in Texas.

Speaker 1 [00:05:09] Yeah, a profit incentive too; in the same way that I know from working the entertainment industry there are firms that will sue for copyright infringement or things like that have a business model of, ‘Let’s look for this particular type of infringement. We know we can win this type of case over and over again. We can build a business on suing on these grounds because we know how it works.’ This sort of creates the same kind of industry in Texas, in a way. Is that right?

Speaker 2 [00:05:37] Yeah, I think that’s right. And so obviously, some of the people bringing these lawsuits are going to be anti-abortion activists who don’t probably don’t even need a financial incentive, right? They would just do this for fun. But it does incentivize all kinds of other people; the people who wrote the law mentioned the idea that people like family members might report on one another to get money, or neighbors or people in the same church or community. So it definitely creates a profit motive.

Speaker 1 [00:06:05] One of the things as you’re talking, that hadn’t occurred to me before you started explaining this, is that this is being done through the civil courts, right? That this is not a criminal violation. You’re not going to go to jail, you’re not going to have that type of trial. It’s instead our other legal system, the civil courts, which operate according to different rules, right? I mean, why choose that method and what is the impact of doing it that way?

Speaker 2 [00:06:33] I think there are probably two big reasons: number one is that Texas didn’t want to get sued and lose. So if somebody violates your civil rights and they violate your constitutional rights and you challenge that and you win, you can get your lawyers fees paid for. If your case goes all the way up to the Supreme Court, that gets really expensive. So Texas lost a Supreme Court decision in 2016 and had to pay 2.5 million in lawyers fees. Texas didn’t want to do that anymore. So they were saying, ‘If we’re not the ones enforcing the law, then we’re immune from a lawsuit,’ which is the way U.S. law works. The only way you can sue a state is if a state official is enforcing an unconstitutional law. Texas is argument here is, ‘Hey, we’re not enforcing anything. This is just these random private citizens doing the enforcing.’ The second reason is, if you stop and think about it, how else is Texas going to enforce a law like this? Because realistically, if you’re in Texas, you can get online, you can order abortion medication on the internet or you can hop in your car and drive to New Mexico. There’s no way the state is going to know you’re doing that unless it has a network of informants telling on you. So it’s sort of a necessary way, if the state wants to stop abortion in Texas, it needs the help of a lot of people. There are not enough government officials in Texas to get it done.

Speaker 1 [00:07:47] But this is such a weird mechanism, it violates my understanding of how (my naive, laypersons understanding) of how the legal system works. I sort of imagine when you sue someone, it’s because you were harmed by the thing that the person did. But in this case, if I sue someone as a private citizens in California for having an abortion, well, that didn’t affect me. It had nothing to do with anything or with my life at all. And so naively, I’d be like, ‘Why would you even have grounds to sue?’ How does the law even create that ability?

Speaker 2 [00:08:23] Well, Texas law doesn’t have – So your intuition maps on to how the law usually works, which is usually you have to have what’s called ‘standing’ legally, and to have standing you have to show that you were hurt. And not only that you were hurt, but that the person you’re suing had something to do with it and that a court can remedy it. If any of those things are missing, you can’t go to court. Texas law doesn’t work that way, so Texas doesn’t have the same kind of standing law. So if the Legislature wants to say, me in Florida or you in California and we have nothing to do with it, and we just feel like suing then Texas can allow us to do that. But that’s just a function of their state law that is weird.

Speaker 1 [00:08:58] Wow. So the legislators who created this law did it in such a way that, Texas cannot be itself be sued for creating this law. But of course it went to the Supreme Court. The Supreme Court refused to block it. Can you just walk us through the reasoning that the justices that were in the majority used to come up with that decision?

Speaker 2 [00:09:24] Yeah. So how it started is that essentially, some abortion providers in Texas sued, and they argued the law was unconstitutional. Which pretty clearly the substance of the law is unconstitutional because it bans abortion two weeks after a missed period, which is not what Roe v. Wade says. Roe v. Wade says you have a right to choose abortion until viability, which is  around the 24th week. So they had to figure out who to sue, though, right? Because you can’t sue the state unless an official is enforcing the law. So they just decided they were going to sue lots of judges, lots of people they thought were going to bring lawsuits, just try to cover all their bases. The Supreme Court looked at it and said, ‘We don’t really know if any of these people are going to enforce the law at this point.’ And Texas has said ‘None of these state officials are going to enforce the law, and you haven’t really proven that’s not true. So you don’t have a right to be in federal court.’ Even if this law is unconstitutional, you still need to be able to sue the right person to prove it, and you haven’t shown that you can do that. That’s why the law got to go into effect. Now, it may be a game changer if someone in Texas actually violates the law and get sued, because if they do that, they’re going to be in a specific court with a specific judge. It’s going to be pretty clear that that judge is holding a trial and making them pay money and that’s sort of thing. At that point, it will be clear who’s doing the enforcing. But this early on, it wasn’t really clear, or at least that’s what the Supreme Court said.

Speaker 1 [00:10:46] So the Supreme Court said, ‘Whoa, this is such a crazy law that we don’t know how to handle it, someones trying to sue to stop it, but we can’t even tell who’s enforcing this thing.’ But because they because they decided not to block the law, abortion clinics in Texas had to close for fear of being sued. So even though you’re saying at a later date, this could come up again once it becomes more clear, it’s had an immediate impact now in Texas.

Speaker 2 [00:11:17] So what’s happened, in effect, is that most abortion providers (pretty much all abortion providers) have said, ‘We’re not going to violate this law because we don’t want to pay tens or hundreds of thousands of dollars. We don’t want to get court orders shutting us down. We don’t want to have to pay all these people’s attorneys fees. So we’re just not going to perform abortions at all other than in the first two weeks after people find out they’re pregnant.’ In practice, that means about 85 to 90 percent of the abortions that were happening in Texas have been stopped. Unless somebody is willing to challenge the law: effectively, get caught and get sued, there’s not going to be that kind of challenge. Then to make matters even more complicated, the U.S. Supreme Court is hearing a case that could overrule Roe v. Wade later this year and could potentially have eliminated Roe v. Wade entirely by the summer of 2022.

Speaker 1 [00:12:11] OK, let’s come to that case in a second, because that case I know a lot less about and I really want you to break it down for me. But just returning to the Texas law for a moment; based on what you’ve told me, it sounds like it’s just a cleverly crafted law that is has created its own loophole. That they’ve tried method A, that was shut down. Method B, Method C. Method E and Method F etc. Now they’re on to Method X or whatever, and they crafted it in such a way that it’s got this really weird enforcement mechanism and it was just strange enough that the Supreme Court threw up their hands at it because when someone tried to bring it to them, it was like, ‘Oh, well, the person enforcing this law is a Phantasm. It’s a ghost. You can’t see the person behind the curtain. Therefore, you know, we can’t do anything about it.’ It’s almost a legal fiction in a way. How do you characterize this law and how it works?

Speaker 2 [00:13:10] Well, I mean, the law was definitely clever. It was designed to do just what it did and it actually started weirdly, there’s a small town called Waskom in Texas that has a couple thousand people living in it. In the dry run for this law was there, and that city wanted to ban abortion. Lawyers and the anti-abortion people were like, ‘Well, that’s great, but we don’t want you to get sued because you don’t have any money. So if you get sued and have to pay other people’s attorney’s fees, the city of Waskom, Texas, is not just rolling in money, so that wasn’t going to end well. So they thought, ‘OK, the solution is you pass the law and then you don’t enforce it, and then no one can sue you.’ They tried that and then wanted to expand it out to the state level. The Supreme Court’s piece of it feels a little bit disingenuous because the court has a history of creative lawyering, ways to get around procedural obstacles. One recent example that we’ve seen is called ‘shadow docket decisions.’ When the court is deciding these emergency orders, deciding them at midnight and you don’t know who wrote the opinion. It’s all very hush hush. They had another one like this earlier during the COVID 19 pandemic, involving stay at home orders and churches, and the churches were saying, ‘Hey, these stay at home orders that say no in-person worship, they violate our freedom to religion.’ There were some procedural obstacles there, too. The Supreme Court found a way around it. And so some people are looking at this and saying, ‘This feels like it’s more about abortion than the Supreme Court is admitting and that this is more about the Supreme Court treating abortion differently.’

Speaker 1 [00:14:42] Right? There’s a certain amount of like ludicrousness to what’s happened. I mean, if this method works, it seems like you could just pass any unconstitutional law this way. If you just said, ‘Well,  the state isn’t doing it. We’ve just create a mechanism by which anybody can sue to prevent churches.’ If I want to ban churches, right, I could just make it so anyone could sue a church for existing. But I haven’t banned them. Oh, you can’t sue me, the legislator, because I’ve just created this thing. It just seems like nothing but a loophole in order to get around a provision that has been previously decided as in the Constitution. It seems hard to accept that it would stand as a decision. But do you feel that it will? Do you think this strategy will ultimately be – Five years from now is this law still going to be around?

Speaker 2 [00:15:41] I hope not, right? Because you’re right that like Massachusetts could say ‘OK, everybody, guess what? Remember your right to bear arms? Now we’re going to ban you having a handgun in your home’ and some other state like Texas could say, ‘Hey, remember your right to vote? Well, not so much.’ Everybody could do that. It’s just hard to believe because there would be no way for anybody to enforce constitutional rights anymore. Your intuition is a layperson is my intuition as someone who studies this, which is just ‘That’s bananas.’ There’s no way that can stand. I don’t know if it will take a progressive state passing a similar law that the Supreme Court doesn’t like for it to dawn on them that, ‘Hey, maybe this is a precedent we don’t want to set, period, regardless of which constitutional right is an issue.’ But I have to think sooner or later that’s going to happen, just because we might as well not have constitutional rights if this sort of thing is allowed.

Speaker 1 [00:16:31] Yeah, it’s just such a blatant end-run that it seems hard to imagine the Supreme Court  countenancing it. Yet they did. Well, let’s talk about the the upcoming case, if you would tell me about that because as I said, I know a lot less. It keeps coming up in the coverage of SB 8: ‘Oh, there’s this other case coming up,’ but there’s been a lot less coverage of it that I’ve seen. So if you would please fill me in.

Speaker 2 [00:16:57] Sure. Yeah. So there will probably be more as it gets closer. So this is a Mississippi law that bans abortion at 15 weeks. So again, that’s 15 weeks after your last period. It’s not 15 weeks after you found out you got pregnant. Mississippi claims that’s when fetal pain is possible. That’s not what most scientists say. They say it’s much later in pregnancy, closer to the 20th or 30th week. What’s important is that you have a right to choose abortion under Roe and the case is following it, until viability. Viability is usually the point at which survival outside of the womb is sort of realistic, right? Like 40 to 50 percent of preemies at this point survive. That’s around 24 weeks. Mississippi’s banning abortion at 15 weeks, and the Supreme Court wanted to hear this case, probably because the Supreme Court is going to uphold the law. So what that means is, to uphold the law of the Supreme Court either has to say ‘We were wrong that you have a right to choose abortion or we were wrong that it lasts until viability.’ Either of those things would be a really big deal. That either means overruling Roe v. Wade or it means rewriting Roe v. Wade and then opening the door to rewriting it or eliminating it down the road.

Speaker 1 [00:18:10] You’re talking about this almost as if it’s a foregone conclusion. That is really the ruling that you anticipate based on the what you’ve seen?

Speaker 2 [00:18:20] Yeah. Obviously, we have six justices on the court who were nominated by Republican presidents who vowed to see Roe v. Wade overturned. We have this Texas order that the court wrote, letting SB 8 go into effect. Obviously people are wrong when they prognosticate like this. The Supreme Court was expected to reverse Roe v. Wade in 1992, and then they didn’t, and everybody had pie on their face. There’s no reason to think that’s going to happen this time, whether that happens immediately or not. I would be a little surprised still, if the Supreme Court reversed Roe in 2022 versus, say, 2023 or 2024, but I would be even more surprised if they didn’t overrule Roe at all.

Speaker 1 [00:19:04] Hmm. It seems as though the main vector for surprise in decisions in the past couple of years, who has been John Roberts, is no longer the deciding vote, which is what I saw as the impact of what Amy Coney Barrett’s nomination would be. But yeah, just tell me a little bit about his role and what approach he has taken in the past and what his position is currently.

Speaker 2 [00:19:34] John Roberts is the chief justice. He was nominated by George W. Bush. He is a conservative, but the word a lot of lawyers use for him is he’s an ‘institutionalist,’ which they usually mean as  ‘he cares about the reputation of the Supreme Court.’ He cares about his own reputation. He’s worried about doing things that will make the court look bad, basically. So he’s been concerned, not necessarily about keeping Roe forever, but making it seem as if the court cares about its own past decisions. So you don’t just put different people on the court and get a complete 180 in terms of decisions, sometimes even with Amy Coney Barrett and Brett Kavanaugh there, John Roberts can convince them to go along with him, right? He doesn’t have a deciding vote anymore, but he still can try to persuade his colleagues. But he doesn’t hold that vote anymore because even if he joins his liberal colleagues, which he did: he didn’t want S.B. to go into effect. He’s outvoted, right? Because you still have Kavanaugh, Barrett, Alito, Thomas and Gorsuch, who are the other conservative five. That was one of the reasons Amy Coney Barrett’s confirmation was such a big deal.

Speaker 1 [00:20:45] Yeah, and there have been some other surprising majorities over the last couple of years that I’ve seen. But this seems to be the issue where that new conservative majority; this is the side that their bread is buttered on. This is the issue on which they’re not going to really surprise you that much. We talked on the show a couple of weeks ago about some surprising statements from (I think) Kavanaugh on antitrust and stuff like that. But that was not something that we would anticipate seeing on the issue of abortion.

Speaker 2 [00:21:19] In part because there are two there are two ways you could view it. Number one, I think, the only reason we might see it is because everyone is watching when it comes to abortion. If the Supreme Court says something about a lot of other things, most people will never find out and if they do find out, they probably won’t care. A lot of what the Supreme Court does, they do in the cover of night. No one really knows what it is. There have been some pretty big changes to the death penalty, for example, recently, and nobody talks about it. But with abortion, everybody cares. So they may be a little more reluctant to pull the trigger because they know that the fallout could be much bigger. On the other hand, because of abortion is a big deal, these people have been screened in no small part to overrule Roe. So if the people who invested all this time and all this money and whatever into picking these specific people to serve on the court, they would have to have made a pretty big error in judgment if these justices decide not to overrule Roe.

Speaker 1 [00:22:18] Yeah. So it sounds like the surprise is that we may see or the debates that they’re going to have are going to be about tactics of how they how they decide to go about achieving their goal of overturning Roe. Maybe they say ‘The Mississippi case? Not yet, but how about next year,’  or something like that. Because, ‘Oh, we think it’ll look better next year’ or something along those lines?

Speaker 2 [00:22:38] Yeah, I think that’s right. I think that there’s going to be – Even the Texas order, as technical as it was, felt like it wasn’t just being written to lawyers. It felt like it was being written to everybody. Since then, Stephen Breyer, Amy Coney Barrett and Clarence Thomas have all been giving talks saying, ‘Hey we’re not politicians, guys, we’re not partizans. You shouldn’t think of us that way.’ So clearly there’s some awareness that everybody thinks they are partizans, which is why they have to say they’re not all the time. So if that’s true, I think you’re more likely to see them  make the case to the public about why they’re getting rid of Roe over a period of time, maybe over a couple of Supreme Court decisions or a couple of years, to sort of soften the blow when it happens. I could be wrong about that. Because there’s a contingent of conservatives on this court who really don’t care about political things. Clarence Thomas could care less about political stuff, he probably enjoys pissing people off, is my impression. So if his voice is ascendant in this conservative coalition, they’ll overturn Roe right away. I’m not sure if Amy Coney Barrett and Brett Kavanaugh (who are probably the swing justices in this equation), if they’re all the way to Thomas’s end of things and if they’re not, then we may see a lot more throat clearing in case making before the report gets around to overruling Roe in a year or two.

Speaker 1 [00:23:55] Wow. Well, let’s talk about what happens when that happens. That’s been presented for my lifetime as being kind of an apocalyptic end game, right? Roe is overturned, and that’s the thing that generations of Democratic activists who have been running elections on. That we have to make sure this doesn’t happen. You’re presenting it as, ‘Hey, we can be pretty certain this is going to happen.’ What happens when that happens? And then what happens next? What do you anticipate the new legal regime, nationally, around abortion to be if Roe is overturned?

Speaker 2 [00:24:35] We’ve already seen a little of this, right, where there’s pretty sharp differences between different states when it comes to abortion. We see a pretty dramatic increase in that. So roughly between about 20 and 25 states would probably ban all or most abortions. There’d obviously be some blue states that won’t ban abortions and may even try to take steps to make abortion more accessible. And then there will be states in the middle that are the proverbial battleground states where we won’t really know ahead of time what’s going to happen. That, of course, won’t be the end point, though, because you have pro-choice folks who are saying, ‘If the Supreme Court overrules Roe, we’re going to push really hard to change the Supreme Court,’ whether that’s term limits for Supreme Court justices, whether that’s adding Supreme Court justices, they’re going to push for federal legislation protecting abortion rights. They’re going to push state legislation protecting abortion rights. Then on the flip side, the people who are opposed to abortion have already telegraphed that what they’re going to do is go up to the Supreme Court and say, ‘Hey, guess what? Abortion is actually unconstitutional.’ The argument is, essentially, that a fetus or unborn child is a person under the 14th Amendment of the Constitution. And if that’s a person, that person has rights and abortion is unconstitutional everywhere, right? So that means you can’t have legal abortion in California any more than you can in Alabama. So overruling Roe is going to just be a chapter in the conflict. It won’t be the end of the story as much as it would be a really big deal, because we’d be looking at pretty serious criminal penalties in a lot of states.

Speaker 1 [00:26:17] Yeah. That goes a lot further even than what we’re seeing in Texas. Because again, that’s a law that makes it a civil penalty (that you could be sued) but doesn’t criminalize the act of getting an abortion. The Texas law doesn’t mean that a woman who gets an abortion will face any jail time or prison or anything like that. It means the person who gives the abortion can be sued for such and such an amount of money. But if Roe is overturned, the door will be open to passing laws that will make it literally illegal for a person to receive an abortion.

Speaker 2 [00:26:54] At the moment, people in the right to life movement are arguing they don’t want to do that, and they’re arguing that women and pregnant people are victims of abortion. I don’t know how long that’s going to last, and the reason I say that is because of medication abortion. So if all you need to do to have an abortion in a state where abortion is legal is get abortion medication on the internet, then if Texas bans abortion and they say, ‘OK, we’re going to try to go after the doctor who mailed you the abortion medication,’ that person’s probably in a place like California. Or maybe they’re not even in the United States or you go after the company that made it, that’s not going to work either because California is not going to ship that doctor to Texas to face criminal prosecution for something that isn’t wrong in California. So are you going to be able to get to, well the person who took the medication who actually lives in Texas. And who is that going to be? That’s going to be the woman. So I think sooner or later, I don’t know how long, the ‘We’re not going to punish the people having the abortions’ thing is going to last. That’s the status quo. But I don’t know if that’s going to be the end game.

Speaker 1 [00:27:55] You know what? You know what this weirdly reminds me of? What you just described is the state of marijuana legalization in America, where it’s legal and a bunch of states and illegal in others technically. Federally illegal, but enforced patchily. As an affluent white person in California, I can get marijuana very easily and I’ll never be prosecuted for it, but there are still people in the country who are poor folks, black and brown folks who are being sent to jail for it elsewhere in the country. It’s just crazily balkanized and there’s no real standard and that sucks. I don’t know if the comparison tracks for you, but that seems bad.

Speaker 2 [00:28:33] That’s what we would expect. I would I think that, people primarily low income black and brown people getting taken down for that is what we would expect. Some states, not Texas, but some states already had laws essentially saying, ‘You can’t manage your own abortion, even if abortion is legal, you have to get a licensed physician to do it.’ And we’ve seen a handful of prosecutions of people under those laws and unsurprisingly, almost all of the people getting prosecuted under those laws are poor, disproportionately likely not to be white. And we’d probably expect to see more of that, because people who – The other question, I think which is ‘why you often are going to see black and brown people being the ones being affected by this?’ Is because they’re the ones who are going to be most likely to get caught. There are people who may not be able to get access to abortion medication until later in pregnancy than you’re supposed to use it. They might then have complications and show up in the hospital, so people find out what they did. People who are black and brown are, of course, more surveyed by the police to begin with. So they’re more likely to come into contact with someone who’s going to find out that they had an abortion. Then other people will. And people with money, of course, you know, can travel out of state. They can take care of this whole thing in places where there’s nobody from the state that’s banning abortion, even watching. Not to say those laws won’t affect people with money too, because they will. Or that they won’t affect white people, too, because they will. But historically, we have no reason to expect this would change that the effects will be the most intensely felt by people with the fewest resources.

Speaker 1 [00:30:08] Yeah. I just want to talk a little bit more before we go to break about the possible response from pro-choice advocates from Democrats on this. You were saying there will be a call to pass federal legislation passing a right to protecting the right to abortion. So say Roe vs. Wade is overturned and this Texas law is still on the books, would a federal law have the power to protect abortion in the same way that Roe v. Wade did and overrule all these various state laws? Let’s set aside whether such a law would be difficult to pass. Do you think it would stand up to legal scrutiny afterwards? What do you think the prospects are for that strategy?

Speaker 2 [00:30:52] The problem, obviously, unsurprisingly, is that if there was a challenge to the law, which there would be, the challenge would go to the same U.S. Supreme Court that we’re expecting to reverse Roe. The question there would be more ‘Does Congress have the authority to pass this law in the first place?’ Something that would feel vaguely familiar to people is all the legal challenges to Obamacare. A question about whether Congress had the power to do that. Congress only has a limited number of hooks that it can hang its hat on when it comes to why it can legislate. It can do it to raise revenue under the tax power. It can do it to regulate interstate commerce. It can do it in limited ways to enforce rights. The rights thing is going to probably be out of the Supreme Court says there’s no right to choose abortion. Congress isn’t going to be able to disagree, and this Supreme Court has tended to interpret the other two ways you can go pretty narrowly. So it may be difficult if there is a federal law, to enforce it. If this is the Supreme Court we’re going to have, which is why I think there’s going to be more serious conversations about changing the court. Because as long as this court is this way, a lot of the other options at the federal level are going to be difficult to pursue.

Speaker 1 [00:32:04] Yeah, it strikes me that this is – I’ve seen a little bit of analysis or speculation about this, that this move from pro-life forces or anti-abortion forces is something that could really serve to radicalize a lot of the Democratic Party infrastructure. That these conversations about restructuring the Supreme Court or even in Texas, electorally, that it could lead to a backlash among, pro-choice advocates in in Texas and a lot more political mobilization. I seems like a spark that could start a fire that that could move in some unpredictable ways, politically.

Speaker 2 [00:32:46] I think that’s right. I think one of the lessons from the history of reactions to Roe, is that basically sometimes a big win in the Supreme Court isn’t as good for your social movement as you think it is. I think we would expect somewhat of a backlash, right? Because it’s true that American popular opinion on abortion is complicated. Americans seem to like a lot of restrictions on abortion, but when you’re talking about bans early in pregnancy, those are very unpopular. When you talk about overruling Roe, that’s very unpopular because people don’t like criminalization. They don’t like bans. What we’re going to get if Roe is gone is obviously Roe being gone, which isn’t going to be popular and criminalization and bans which aren’t going to be popular. So you would expect there to be a backlash simply because lots of data tell us that that’s not what most Americans want. The only thing that might make that not happen, is simply if there’s just so much other crazy crap going on in the world that people don’t have the bandwidth to care about abortion, right? Because of the pandemic or whatever disaster of the day is happening. Barring something like that, that’s absolutely what we would expect.

Speaker 1 [00:33:46] Well, no. It’s true, though, that the Supreme Court decision was one of the most momentous, legal decisions of the past decade. This is a big bit of constitutional history happening and it fell off the very top of the New York Times web page after a couple of days. It was sort of on row two. Because there’s so much other crazy shit happening. So that’s a great point. But I want to get more into the history of this conflict, these competing movements. But we got to take a really quick break. We’ll be right back with more Mary Ziegler. OK, we’re back with Mary Ziegler. I want to learn more about the history of how we got to this place. It strikes me, looking at this Texas law, that this was must have been the result of constant iteration from anti-abortion activists of ‘How do we pass something that will allow us to ban abortion?’ Thing A didn’t work. Thing B didn’t work. Thing C didn’t work. That is what I was really excited to have you on to talk about, to chart some of this history. So if we could start with after Roe versus Wade was decided, what was the immediate reaction to it? How did we get on the path that brought us here?

Speaker 2 [00:35:20] Yeah. So the immediate reaction of the anti abortion or pro-life movement was to try to amend the Constitution. Because the end game has always been ‘no abortion, anywhere.’ So they looked at Roe v. Wade and they said, ‘This is bad. But the big problem is not just that Roe v. Wade recognized the right to have an abortion, it’s also that it didn’t say abortion was unconstitutional. So we want to amend the Constitution to make abortion unconstitutional everywhere.’

Speaker 1 [00:35:47] So was there a movement trying to make abortion unconstitutional before Roe v. Wade was decided?

Speaker 2 [00:35:55] No, before Roe v. Wade was decided the anti-abortion movement thought they didn’t need to do that because they thought abortion already was unconstitutional. Their position was that that’s what the Constitution has always said. After Roe v. Wade, they thought, ‘OK, well, no, we can’t do that. We have to actually have a constitutional amendment saying that, because clearly the courts and other people don’t believe that, which is how we got Roe v. Wade.’ So that goes on for a while and then people in the anti-abortion movement realize what other social movements have learned, which is that you can’t really amend the U.S. Constitution anymore. If you wanted to amend the U.S. Constitution, to say ‘Friday is more fun than Monday,’ it wouldn’t work. It just has been a complete dead end. Then what starts happening is they look back at the Hyde amendment. You may have heard of the Hyde amendment, it bans Medicaid funding for abortion. Initially, the Hyde amendment was just an afterthought or a stopgap while they were fighting about this constitutional amendment. And then they look back at it and say, ‘Hey, maybe this is something more than we thought it was. Maybe we can use laws like this to generate test cases for the Supreme Court and maybe instead of caring about getting politicians to vote for a constitutional amendment now we care about getting politicians who put the right people on the Supreme Court to uphold these laws and the test cases we’re bringing.’ Then, the more of these test cases we have, the more the idea that there’s a right to choose abortion just looks like a joke, right? If there’s a right to choose abortion and you can’t get an abortion in Texas and you  you can’t get your abortion paid for and you can’t do it at this point in pregnancy and you can’t do it for this reason and so on and so on. Eventually, it’s going to be easy to go to the Supreme Court and say, ‘What right is there any more? Just overrule the thing already?’ So that became the strategy, and we’ve seen iterations of that unfolding ever since.

Speaker 1 [00:37:38] Yeah, just these little chipping away at the right, piece by piece. I’ve honestly even heard that argument from folks who are pro-choice but are saying (I feel like I’ve heard this), ‘Well, when Roe is overturned, is it going to be that big of a difference? Because the right to abortion  functionally doesn’t exist in so many states already that this apocalyptic framing maybe isn’t right because we’re already in the bad timeline.’ We’re already in the world in which abortion is much harder to get than, a stricter reading of Roe would allow it to be. Therefore, it’s not like we’re going to suddenly enter some new universe once Roe is overturned. I don’t know if you agree with that frame. I don’t know if I do either. It’s just a sentiment I’ve heard out there.

Speaker 2 [00:38:28] I mean, it’s kind of a yes and no type of thing. So obviously, the reality is that there are a lot of states where there’s already only one abortion clinic and a couple of thousand abortions happening every year. So it’s pretty close to a world where Roe doesn’t exist if you’re in Mississippi or Alabama. On the other hand, I think it’s a big difference. If what Alabama wants to do in a post Roe world is to make abortion a felony punishable by 99 years in prison. So there’s going to be zero abortion clinics in Alabama if that happens. The other reason it matters is that, as I mentioned, the end game is to go to the Supreme Court that’s this conservative and say ‘Abortion is unconstitutional.’ There’s no way you’re going to get that, if technically there’s a right to choose abortion, those are mutually exclusive. That and a right to life are mutually exclusive. So you need to have a decision formally seeing Roe v. Wade is dead to get to that next step of saying abortion is unconstitutional. I don’t know if that’s going to happen. I’m not sure if that’s going to happen, but I think with this Supreme Court, it’s not out of the question. I think that’s  another reason it matters. It probably also matters to states like Florida, right? Florida is one of the states with the highest rates of abortion and the highest numbers of abortion, but it’s a purple state. So things like this Supreme Court signaling it’s go time to Ron DeSantis might make a difference because in Florida, Republicans are not as sure what to do as they are in places like Alabama that are more homogeneously opposed to abortion. So I think that there may be those sort of in-between states that will care more if Roe is gone and we may see bigger swings that are more consequential too, in terms of people who are in places like Alabama, when they’re getting abortions, guess where they’re going? They’re going to these purple states in their regions like Florida.

Speaker 1 [00:40:18] Right. They’re driving a couple of miles. If you live in the center of Alabama, that means you have less access than if you live on the border. But yeah, we’re not going to start checking cars on the border to make sure people aren’t getting abortions. Or, I don’t know, maybe maybe we will. But it really is interesting again, that Texas is often described as being a purple state or a future purple state because it has these extremely deep blue pockets that are extremely populous. Those parts of the state are growing faster in the rural areas, et cetera, et cetera. I just saw some reporting today that Ron DeSantis maybe doesn’t want to do on SB 8 style bill because he’s worried about the impact. They have to consider that in Florida, about galvanizing the opposition. In Texas, they might have done that. It is interesting that law happened in Texas and not in a place like Alabama where the Republican leaders are a little bit more protected.

Speaker 2 [00:41:15] Yeah, I mean, Texas is weird that way. I think it has a lot to do with Texas’s anti-abortion movement. So within the anti-abortion movement, there are people who identify themselves as ‘pro-life’ who tend to be in favor of whatever they can get, basically, whether it’s restrictions or bans. Then there are people who call themselves ‘abolitionists,’ and abolitionists mean to ban abortion right now and if that means they’re going to break the law and go to jail for it, like, oh, well. They’re going to do it anyway. The abolitionists in Texas have been a thorn in the side of a lot of the GOP legislators there, because every time GOP legislators try to do anything with abortion, these abolitionist people show up and complain and testified against it and lobby people to vote against bills that limit abortion. And so I think there was a push on the right in Texas for legislation that did something right now. So I think one way to view this, is that this is not about what most voters in Texas want. It’s about the perception about what conservative voters in Texas want and the fact that it was making them (to the extent you say mainstream) but is making the Texas legislators look bad in the eyes of their most conservative constituents that they weren’t doing more. And so they felt compelled to do that. Even if polling data is going to tell you, people in Texas probably don’t want a ban at six weeks.

Speaker 1 [00:42:37] Yes, this law is really aimed at those most conservative or most (let’s take conservative out of it) radical activists on the anti-abortion issue and placating them, basically.

Speaker 2 [00:42:51] Yeah, I think that’s right.

Speaker 1 [00:42:54] One thing we actually haven’t talked about yet is who is the anti-abortion movement? Who makes up this movement? It strikes me as really interesting that we have so many social movements that are eventually determined by the Supreme Court. Look at same sex marriage, right? Big, big debate in America, lots of very entrenched positions. But Supreme Court made a decision. We’re coming up on a decade later and there’s a lot less argument about it, right? The sort of the issue slowly gets sort of put to bed and it stops being so rancorous, whereas the opposite happened in this case. In the case of Roe v. Wade, where the issue is finally decided and the conflict only gets more extreme. It doesn’t seem like anyone is going to be convinced a decade from now, similarly. Why is that? And who makes up the this movement?

Speaker 2 [00:43:54] So, historically, the anti-abortion movement has been a combination of (historically) predominantly Catholic people, which isn’t to say that all Catholics are opposed to abortion. But if you went far enough back in time, all of the people who are opposed to abortion were Catholic. Early enough on, evangelical Protestants, (who are often who we think about when we think about the anti-abortion movement) we’re not a part of the anti-abortion movement. In part because they weren’t comfortable with Catholics. So even the Southern Baptist Convention, which is the largest Baptist denomination in the world, was opposed to what it called ‘abortion on demand’ until the early 80’s. But not (and this is even after Roe) opposed to abortion, period. They were okay with rape and incest and that sort of stuff. And so that only changed in the 80’s. It was in the 80’s that you began to see a lot of evangelical Protestants joining the movement and in some ways, kind of dominating the movement. I think probably the face of the anti-abortion movement now is white and evangelical for the most part. That isn’t to say there are not lots of Catholics. There are people who are not white who are opposed to abortion, but the leadership of the movement, I think, is more heavily evangelical than might have been the case a while ago. Why are they so committed? I think in part because of the way our politics work, because at the national level, our politics on abortion cater to the people who care the most about abortion, not to the most people. So a lot of people don’t like this thing that’s happening in Texas, but they’re not voting on that basis. They’re not protesting on that basis, they’re not organizing on that basis. They’re sort of like, ‘Well, that sucks’ and then they move on with their lives. Whereas the people who care really passionately about this, that’s the only issue they vote on. They’ll vote for people who they don’t like and don’t respect and who are going to screw them economically, and that’s fine as long as they have the right position on abortion. So that’s what politicians are trying to do. They’re trying to cater. And I think on the other side, too, if you’re trying to be fair about it, Democrats are catering to the most pro-choice people because those are the people are going to vote based on that, right? That means we have a sort of weird zero sum debate where we could never have a settlement like what you see in Europe, for example. In a lot of European countries, abortion is pretty available and even paid for in the first 12 weeks of pregnancy. And then after that, you have to have some kind of health justification that would probably work for a lot of Americans, because that roughly tracks when approval of legal abortion is the highest and when people actually have abortions. Especially if there were exceptions after that for health threats and situations like that, no one is ever going to see that happen because no party is going to support that. So that’s part of it, our party politics are weird. And to some degree, as I mentioned, too, it’s that we have a lot of white evangelicals and that the white evangelicals we have had become increasingly powerful in the Republican Party in ways that they can call political shots.

Speaker 1 [00:46:44] So why? And look, I know you’re a legal scholar and maybe not a sociologist, but I’m curious if you have any view of why white evangelical opinion on this would have changed over time. I understand if someone says, ‘Hey, it says it in scripture, and that’s my religious belief.’ But to the extent that, as you said, the religious beliefs of that group have changed or the beliefs about abortion in that group have changed. Why would that happen apart from, I guess, more comfort with Catholics? But if white evangelicals are pounding the pulpit right now saying, ‘Abortion is murder’ and they weren’t 30 years ago or weren’t maybe 40 or 50 years ago, why would that be?

Speaker 2 [00:47:28] So there isn’t much in scripture on abortion. That’s part of the reason it was open ended. Some of it was just as simple as two things. One was that there were specific individuals who deserve the credit. There was a minister from Missouri who did a lot of lobbying to convince Southern Baptists to oppose abortion. The bigger thing, I think, was that a lot of evangelicals in both the North and the south just didn’t like Catholics, and that was really what was holding them back. That they thought, ‘If this anti-abortion movement thing is a Catholic movement, we should probably be against it because Catholics are kind of gross, so we’re not going to do that.’ I think over time (especially during the Ronald Reagan era) it became clear to conservative Catholics and conservative evangelicals and conservative Mormons and conservative Orthodox Jews and other conservatives of different faiths, or no faith at all that if you could overcome these denominational and religious differences that you could create a much more powerful political coalition. So eventually, I think Catholics and evangelicals who had been mutually suspicious of one another just got over it because the benefits on the other side were so great.

Speaker 1 [00:48:34] Wow. Is ecumenical the word? What’s the word for when religions come together across faiths and chat? But doing that in the service of conservative orthodoxy, that’s really interesting. I hadn’t thought about that. Wow, thank you. That is incredibly helpful to get the scope of it. Let’s just return again to where do you feel that things will go in the future? You, again, feel that Roe vs. Wade will be overturned. I’m sure that there are folks listening who are a little bit stunned and maybe feel hopeless by that conclusion. Where do you feel that things will go and where should people be putting their energy?

Speaker 2 [00:49:25] I think in the short term, probably the most important thing to focus on is on state legislatures. I think, especially if you’re listening to this and you consider yourself a progressive, you probably don’t know or care much about your state legislature. Conservatives have been way better at playing that game in recent decades than progressives have. If Roe is gone in the short term, unless we’re talking about reforming the Supreme Court or whatever, most of the action is going to be at the state level. That’s true if you live in a swing state where it’s not clear what your abortion policy is going to be. It’s true if you live in a conservative state, because conservative legislators are going to need to have some kind of reason not to include the morning after pill or not to punish people who have abortions if they’re not going to do it. And it’s even going to be true in progressive states because progressive states are going to have to think about whether they want to pass laws that make it easier for people out of state to come to their state to have abortions. Getting informed about state legislatures in your state, knowing who you’re voting for, actually organizing to do something about those elections if you’re volunteering. I think even protesting helps because to some degree, all these people may be telling you they don’t care about politics, including the Supreme Court. But we have lots of reasons to think that isn’t true. And probably the biggest thing is just to remember that this isn’t going to be over if the Supreme Court is deciding Roe is gone. Because of course, we know in 1973 that Harry Blackman, who wrote the Roe opinion, had all this stuff in his papers, essentially saying, ‘We’re going to write this opinion, it’s going to be done. We’re going to settle the abortion debate. It’s going to be great.’ And here we are, 50 years later, still talking about this. Clarence Thomas is going to coffee with people right now saying, ‘Guys, it’s going to be great. We’re going to settle the abortion debate’ and we know how that movie ends because we’ve seen it before. So is that something you don’t like the sound of, you shouldn’t feel powerless because we’ve seen when the shoes on the other foot, how that goes. So you can do the same kind of thing where you can protest on the streets, you can organize, you can lobby, you can vote, you can donate money. There are a lot of ways that that would make a difference.

Speaker 1 [00:51:29] Yeah, it’s been a recurring theme on this show that there’s so many issues and conflicts that are framed to us as ‘Well once this happens, it’ll be too late.’ But in reality the struggle never ends, whether it’s climate change or whether it’s abortion rights, whether it’s anything else. That we’ll  wake up on that day and there will be more battles to fight and more progress to make. Well Mary, I can’t thank you enough for walking us through all this. This has really helped me understand the issue a lot better. Thank you so much for being here.

Speaker 2 [00:52:01] Yeah, my pleasure.

Speaker 1 [00:52:07] Well, thank you once again to Mary Ziegler for coming on the show, if you want to pick up her book or the books of any of our guests, remember you can go to our special bookshop at factuallypod.com/books that’s factuallypod.com/books. I want to thank our producers, Chelsea Jacobson and Sam Roudman. Our engineer, Ryan Connor, Andrew W.K. for our theme song. The fine folks at Falcon Northwest for building me the incredible custom gaming PC that I’m recording this very episode for you on. You can find me online @AdamConover or AdamConover.net. If you want to send me an email, you can send one to factually@adamconover.net and I do try to read all the emails you send because I do enjoy hearing from you. That is all for us this week. Thank you so much for listening and we’ll see you next time on Factually.