Good Law | Bad Law #94 - Do anti-abortion advocates actually want to save Roe? w/ Mary Ziegler

Aaron Freiwald: Welcome back to good law bad law. My guest on this episode is Mary Ziegler she is a law professor and legal historian at the Florida State University College of Law and she is an expert on the history of Roe v. Wade. The Supreme Court's landmark abortion decision and her focus in her research interestingly has been the anti-abortion movement. Our conversation focuses on how the anti-abortion movement's strategy has evolved has changed as the Supreme Court has changed over time. And what this says about the moment we are in right now as President Trump gets ready to try to confirm Judge Kavanaugh to replace Anthony Kennedy on the Supreme Court. How will the strategy of the anti-abortion activists change. This is something pro-choice movement activists ought to pay very close attention to. Anybody interested in the fate of abortion rights in our country needs to understand the real politics on the ground that affect the direction of changing, limiting, restricting and possibly overturning the right to abortion in this country. Stay tuned.

 

Mary Ziegler: My guest today on Good Law Bad Law is Mary Ziegler. She is a professor of law at Florida State University College of Law and she's a leading expert on the subject of Roe versus Wade probably one of the most important Supreme Court decisions ever and we're at one of those moments again where Roe is back in the news. So first of all Mary I want to thank you very much for being on the program today.

 

Mary Ziegler: Well thank you for having me.

 

Aaron Freiwald: We're going to we're going to talk about Roe versus Wade. I know you are a legal historian and have written a couple of books on the subject of Roe versus Wade. So it's really an opportune moment to look backwards at how we got to where we are 45 years after the Supreme Court's historic ruling in Roe versus Wade on abortion and how things have changed and moved over these last 45 years and where that history suggests we may be going in the future. So let's start as we usually do. Mary if you wouldn't mind give us a little background on yourself, the books that you've written on this topic and then we can understand how we can proceed through this important topic.

 

Mary Ziegler: Sure I'm a legal historian and I got interested in legal history actually because I was interested in Roe. I was a second year law student at Harvard. I was taking a legal history course and I found it fascinating and often a lot of the book sort of spoke to how do social movements change society by using law can they in fact do that. What role do the courts play in changing how the country functions. Or can they. But a lot of the case studies that we were looking at involved Brown versus Board of Education and just sort of broadly speaking civil rights and racial justice and desegregation. So I kept waiting because Roe v. Wade was such a famous case for the Roe v. Wade books and there really weren't any ... at the time. You know I don't know the twenty three or four I thought oh well maybe I'll do that. So it is a lot more work than I had anticipated at the time but that was what got me going. My first book was motivated largely by the fact that so many talked about Roe's impact all the negative impacts that Roe had had that Roe put off the table compromises that would have otherwise been desirable in the abortion debate that Roe kind of gave birth to the culture wars. And I realize that a lot of those conclusions were drawn by people who hadn't studied the history so I was interested in what the immediate aftermath of Roe actually looked like. So that book took me a long time to write and I did oral histories with over 100 people who have been active in the decade after Roe and collected lots of archival material from people and went to dozens of archives across the country. My second book was about sort of Roe's legacy outside of the abortion context. So when Roe first came down social movements that really weren't interested in abortion particularly or only ancillary saw Roe's definition of privacy as a potential weapon in other struggles involving everything from sexuality and intimacy to consumer rights for patients to autonomy for people with mental illness to death and dying to even data privacy. So I was interested in how Roe went from a sort of symbol of all that privacy could mean to being shorthand for abortion at least or at least for a woman's right to choose. And that wasn't my second book was about and my current project is probably the most immediately relevant to the conversation we're having now. I was curious how we got from the decade I had studied this or the decade immediately after Roe to now. And what had changed so essentially from a legal history standpoint I'm primarily a legal historian so my current project is a legal history of the abortion debate really from primarily from the Hyde Amendment or 1976 to the present.

 

Aaron Freiwald: Well you know it's fascinating listening to how this interest of yours developed and I'm not sure I've ever really thought about it this way. But the whole history of the civil rights cases and the civil rights movement itself from Brown versus Board of Education really up to you could say the same sex marriage decision, the Obergefell decision, is really about how we interact with one another out in the world. You know in the workplace in schools in you know in housing or whatever it might be whereas Roe really stands as one of the most important cases that starts to define as you say this line of cases dealing with privacy with how we are affected by the law limited or were freed by the law in terms of our most intimate personal private interactions. So that in itself is fascinating but you know I think it would be important to start perhaps by looking at the World before Roe almost to describe where we were on the eve of this decision in 1973 and then to to understand how things changed after that. So can you give us a portrait of where things stood on the eve of this 1973 Supreme Court decision in terms of privacy.

 

Mary Ziegler: Right, so I think that one of the probably the most striking things for people who don't study history is that the abortion conflict was already raging before Roe came down. And that conflict kind of reached back several decades at least even further than this but it really had intensified in the 1960s. So abortion had been legal for lots of American history until the point of quickening which was when a woman could detect fetal movement. Then in the 19th century in a campaign led by the American Medical Association many states criminalized abortion throughout pregnancy with some narrow exceptions for when a woman's life was at risk and that had been the legal status quo but never really the medical status quo because individual doctors wanted to be able to perform abortions when they thought it would be in their patients best interests. So there was a sort of underground world of abortion for decades. And in part because obstetric care wasn't necessarily the best doctors could if they needed to justify some of these abortions as necessary to save womens' lives. But as obstetric care improved in the 40s that just wasn't a plausible argument anymore. So there began to be more pressure for the reform of these criminal abortion laws and actors like doctors. But public health reformers and others formed a movement to advocate for more lenient abortion laws. And often the early movement mobilized around a proposal created by the American Law Institute that would allow women to have abortions under certain narrow circumstances like cases of rape or incest or fetal abnormality. And so some states passed the ALI model. It became clear to many fairly early on that the ALI model wasn't actually changing the practice on the ground very much so between 1966 and 1969 11 states liberalized their abortion laws including California for example. But that didn't seem to actually make it much easier for women to get abortions. California for example reported only 25,000 legal abortions in 1969. So some began pressing for the outright repeal of abortion restrictions and this included new actors so not just doctors and public health leaders but feminists and environmentalists. People who were interested in controlling domestic and world population growth many of whom thought that nothing would work but the outright appeal repeal excuse me of abortion restrictions and as soon as a movement for reform or repeal got under way there was an organized opposition to it and it started pretty heavily in the Catholic Church but attracted support outside of the church and there was already kind of a state by state pretty heated battle under way before Roe came down. So there were battles in state legislatures about whether abortion laws would change and if so whether they would be repealed or just reformed. There were battles about referenda in some states. New York is just an interesting case study New York repealed all of its abortion restrictions. But abortion opponents continued to fight and got the legislature to overturn the repeal only to see that vetoed by what was then a pro-choice but Republican governor in Nelson Rockefeller. So politically the world of abortion before Roe would be very familiar. It was one where this is already a wedge issue. Richard Nixon already saw abortion as a way to win over potential swing voters particularly blue collar Catholics and voters in the South. There were already defined social movements passionately committed to their positions on the issue and then in terms of what the world of actual abortion practice looked like is very hard to say of course because abortion in most states was still broadly illegal and data that we have on how many abortions were taking place is up for unsurprising reasons is pretty unreliable. I've seen estimates ranging from 200,000 to one point two million illegal abortions per year. Of course in states that did legalize abortions we have somewhat better data although maybe not perfect data. We know that in places like New York and California the number of legal abortions went up when abortion was legal. But I think it's very hard to get a snapshot of how many people were having abortions and how dangerous those abortions were in part because this practice had been pushed underground.

 

Aaron Freiwald: But it's fascinating Mary that when you look at the world in 1973 and the different groups of people who are interested in this issue. And you've talked about the medical community in the early 70s. You know in the 60s and early 70s you have a rising activism among women and feminism. And then you also have these still very powerful interests in religious communities and it's and I think it's right that even in states today that you would think of as being very solidly liberal so to speak. It's always always a tricky word to use liberal but but you know a typically liberal state like Massachusetts which was also very you know had a very powerful Catholic population that was politically important in that same time period how things lined up then versus how things started to realign after Roe versus Wade. I mean Massachusetts I think would be considered a state very reliably pro-choice. In today's lexicon but in the early 70s Massachusetts was one of those states that was more anti abortion isn't that right. So how have things changed.

 

Mary Ziegler: Is it yeah my sense is that party alignment was totally different around the abortion issue and it would have even been harder to identify a party alignment around the abortion issue. So if you're if you were looking at who was a leading pro-life politician in 1972 or 73 or even 75 or 76 you wouldn't have a familiar cast of characters. So Dick Durbin who of course is a leading Democratic senator actually helped to co-found a pro-life group in Springfield Illinois. Joe Biden was a pro-life politician as were other prominent Democrats.

 

Aaron Freiwald: Both of them Catholic right?

 

Mary Ziegler: Many of them were Catholic but I think they also didn't see being anti-abortion as being out of line with the broader commitments of the Democratic Party. And nor did many in the anti-abortion movement. So there were some in the anti-abortion movement for example who saw fetuses or unborn children as a minority right if you want to protect the rights of poor defenseless people of color why not protect the rights of poor defenseless unborn children. And there are many who thought that in criminalizing abortion you would also try to expand the social safety net or have more comprehensive programs for poor women and children after birth. So it wasn't inevitable that you would have a kind of mix of social and economic conservatism defining the GOP in the way that we've seen. And that happened pretty gradually. So for much of the '70s neither party really wanted to take a strong stand on abortion and kind of treated the abortion issue as generally toxic. So in '76 both Gerald Ford and Jimmy Carter pretty strenuously tried not to have a clear position on abortion. And both parties kind of made room for people with different positions on abortion and Ronald Reagan began to change that in 1980 because Reagan had made a name for himself as early as 76 and as a kind of dramatically and consistently anti-abortion candidate can come up to.

 

Aaron Freiwald: That's fascinating about Reagan because I was an investigative reporter in the '80s during the Reagan years in Washington before I went to law school so I'm familiar with the role of Ed Meese and others in the Justice Department who in terms of judicial selection and other policies that came out of the Department of Justice. You know how they used this issue used abortion and advance their agenda. But I always thought Reagan as a former governor of California and maybe this speaks to how chaotic or less well clearly defined people's political positions were with this issue. I always thought Reagan started out being more liberal on this issue. And again I know that word is tricky.

 

Mary Ziegler: He did. I think I think his conversion was part of a broader shift in how a lot of conservatives approach the issue. And also I think Reagan's conversion came at a time when a lot of the evangelicals were beginning to think differently about abortion. If you looked at the composition of the pro-life movement like I said for much of the '60s and '70s it was heavily Catholic that began to change. So if you're looking at sort of why did the pro-life movement become the pro-life movement we know one of the reasons as I mentioned was party alignment. But one of the reasons was also the emergence of a kind of organized evangelical religious right and that came in part because of works by there's a theologian named Francis Schaefer a quite prominent theologian who put out both books and films urging evangelicals to become more politically active and particularly to become more active on the abortion issue. And I think that as Schafer's voice resonated with more evangelicals you began to see Protestant actors who might have seen abortion as kind of a Catholic issue not really their issue. View abortion differently. And also I think it made the calculus different for existing pro-life organizations existing pro-life organizations had as you can imagine both fiscal conservatives and fiscal liberals in them people who have divergent views on everything from the death penalty to nuclear war to contraception to women's roles in the family. And the only common denominator had been abortion. It had been not evident I think to people within the anti-abortion movement which was the best direction to go in terms of aligning with Democrats or Republicans by the end of the '70s between Reagan's kind of conversion and sympathy to the anti-abortion movement. And the fact that you had a religious right that had a lot more money and political savvy than what at the time was a very poor and struggling anti-abortion movement. It seemed obvious that the only way to remain relevant or influential was to align with the political right. So that change happened but it was gradual. It wasn't largely because of Roe.

 

Aaron Freiwald: You know we often think that that our political leaders those who are out in front of the debate shape the political agenda. But but you've studied when it comes to Roe versus Wade the movement you know populated by people as you point out from this growing evangelical political force which I think probably hadn't been as politically active until Roe or not not nearly as much. So how much do you think the you know people like Ronald Reagan who obviously had you know very prominent bully pulpit. How much was he driving the the the anti-abortion or pro-life or however you want to describe it the anti-abortion movement. How much of it was coming from the grassroots as people in communities across the country were were driving this issue.

 

Mary Ziegler: Well I certainly think that the grassroots made up the heart of the pro-life movement by the time he got into the '80s the movement had become a political creature too. How that had happened in the initial pro-life movement after Roe had very little interest overturning Roe which would surprise listeners I think instead the movement's focus was on amending the constitution to not just overturn Roe but to ban abortion outright because of course overturning Roe doesn't force states to criminalize abortion. And of course many states like New York and California would continue to allow abortions and may in fact do things to make it easier for women from out of state to get abortions. So the idea was to make it nationwide a criminal ban on abortion even ones performed by private actors. So to get that done. Organizations like the National Right to Life Committee argue that the pro-life movement had to become more involved in elections had to see to it that sympathetic politicians were in the White House and in Congress and in state legislatures. So it became very very important in light of that to have people like Reagan in the White House. So it wasn't so much that the grassroots lost control of the pro-life movement at that point but that the pro-life movement itself at least some organizations had put a lot of emphasis on electoral politics and on a partnership with the GOP. There is kind of a feedback relationship in terms of what grassroots activists prioritized and what the Republican Party said. So it was sort of hard to disentangle what was driving what at that point it wasn't that there wasn't clearly just energy coming from the grassroots in the way that there would have been a decade or two earlier.

 

Aaron Freiwald: So I mean that is surprising to this listener for sure and I'm sure to others as well because I had always believed that the strategy of both those in the pro-life movement and for those who did get into an elected official position whether in the state legislatures or all the way up to the president. I'd always thought the strategy was to try to get judges on the federal bench who were sympathetic to a pro-life anti-abortion viewpoint and didn't appreciate that that there was also a desire to have a constitutional solution which makes sense because and we're talking about this again today with the pending nomination of Judge Kavanaugh to replace Anthony Kennedy on the Supreme Court. What that might mean for the future of Roe versus Wade. Of course what most people think is that if Roe versus Roe v. Wade is overturned and it goes back to the states and this I think has been the focus all these states will almost instantly become anti-abortion states but necessarily as you point out there are also going to be many states that will be pro-choice and will allow abortion. So it's a mixed bag with that strategy. You're going to have some states for you. You're going to have some states against you. But how far did the effort to try to seek a constitutional solution, an amendment. How far did that get.

 

Mary Ziegler: It didn't get very far so there were hearings in the Judiciary Committee in 1974. And then things really stalled until 1980. And ironically it was success though the election of Ronald Reagan and a broadly anti-abortion Congress that made a difference. So what happened at that time was that there weren't enough votes for an actual constitutional amendment in Congress. So there were different proposals put forth sort of as alternatives. One was a statute that would have defined an unborn child as a person from the moment of fertilization. So basically a statute a federal statute criminalizing abortion. Another was a constitutional amendment that would have overturned Roe and returned the issue to the states. And this created a huge divide in the anti-abortion movement the kind of pragmatist said we have to go with the amendment overturning Roe because that's the only realistic solution. This statute is going to be struck down by the court and the kind of absolutists who were saying essentially that there's no point in just having a constitutional amendment overturning Roe if we do that. We're never going to get what we actually want. So this internal divide doomed both proposals by around 1983. The movement had more or less given up on amending the constitution any time soon. So instead there had to be a kind of justification for what is the pro-life movement going to do. How is it going to justify its existence and this is a particularly urgent problem for groups like the National Right to Life Committee that had become by that time the biggest richest most influential anti-abortion group. And the answer at that time was well we can get Roe overturned right if we have an alliance with the GOP and the GOP wins elections. The GOP can put sympathetic judges on the bench and those judges can overturn Roe. That also was the era that kind of gave rise to the incremental attack on Roe that becomes familiar now.

 

Aaron Freiwald: The Casey decision and other Supreme Court cases along the way.

 

Mary Ziegler: Right. And really even earlier than that the Hyde Amendment. So there was a sense in which pragmatists groups like Americans United for Life and the National Right to Life Committee recognized that the court wouldn't overturn Roe immediately. So instead of championing a right to life for example the movement would come up with restrictions that could theoretically pass muster under Roe and in doing that would limit the abortion rate and also make Roe seem increasingly incoherent and unworkable. Right if you have Roe that theoretically sounds like it's announced a broad right. Contrasting with lots of subsequent decisions retreating from that right or drawing exceptions or what have you. Then you would have an easier time when the moment came to argue that Roe should be overturned. So that strategy was forged after the movement had given up on a constitutional amendment and actually the idea of an undue burden test emerged pretty much at that time like this. Abortion opponents were arguing for an undue burden test. In 1983 Supreme Court case called City of Akron versus Akron reproductive health services. So the road to Casey was kind of a long one.

 

Aaron Freiwald: And explain that because that's that's very important to understanding how Roe can exist as a broad constitutional right. But at the same time be limited by decisions that allow regulations here that law regulations there. This undue burden test. Can you explain what that means and how that fits into the strategy that was was taken on by the anti-abortion movement.

 

Mary Ziegler: Sure so the the undue burden standard that we have now was created by Planned Parenthood versus Casey and the decision subsequently interpreting it including Gonzalez versus Carhart and Whole Woman's Health vs. Hellerstedt, the undue burden test as pro-lifers initially envisaged it was going to turn the conversation away from whether women had a right to abortion. So I think anti-abortion lawyers by 1983 realized that the Supreme Court just believed that the Constitution recognized an abortion right so arguing that it didn't or that it shouldn't or that the Constitution recognized the right to life was just going to be a waste of time and money. So instead pro-life lawyers look to other decisions that the court had made in the context of minors and abortion in the context of money and abortion. So the court indicta had used language saying that not all abortion restrictions were unconstitutional only unduly burdensome ones were. At the time those decisions came out. I don't think most lawyers read them as you know transforming Roe or overturning Roe or changing the doctrinal approach in Roe. But anti-abortion lawyers wanted to use the language that way.

 

Aaron Freiwald: Unduly burdensome meaning unduly burdensome on a woman seeking an abortion.

 

Mary Ziegler: Right.

 

Aaron Freiwald: Okay.

 

Mary Ziegler: And so the way pro lifers wanted to define it was that laws shouldn't be unconstitutional. If an abortion restriction actually helped women rather than hurting them. So for example anti-abortion lawyers would say well we have this informed consent law that tells women that if they have an abortion they might have they have an increased risk of infertility or mental trauma and they would say well that's true. So by telling women this abortion restriction isn't harming them it's actually helping them make a better decision. They would say the same thing about you know requirements that you would have to have an abortion in the hospital after the first trimester. The idea that later abortions are less safe. So these laws are helping women by ensuring they have higher quality care in hospitals. So the argument was essentially that some abortion restrictions are good for women and that the court should acknowledge that and therefore uphold more abortion restrictions. Of course that didn't work for awhile the court continued striking down abortion regulations pretty consistently until the court's composition changed. And the idea of an undue burden that the court ultimately adopted in 1992 differed pretty dramatically from the one that abortion opponents had described and also differed from the one that Sandra Day O'Connor had adopted in that 1983 case the city of Akron. So there were lots of different kind of contrasting ideas of undue burdens floating around. Some were pro-choice than others some for the better part of the '80s.

 

Aaron Freiwald: So we do really circle back to the issue of the makeup of the Supreme Court. It sounds like because as the strategy of the anti-abortion activists and movement leaders changed it sounds like a big driver in what changed that strategy was the reality of the judicial politics as well as the elected politics. You know the electoral politics but you know once Sandra Day O'Connor left the Supreme Court then you look at a Supreme Court that has four solid votes for upholding any challenge to Roe and for votes that are very solid in terms of looking to restrict or even undo Roe and you've got one guy sitting in the middle, Justice Kennedy. And if you're looking at the makeup of the court you say well I'm just not going to get what I want through that Supreme Court so I have to adjust. It sounds like that's a big factor in how the anti-abortion movement adjusted its strategy over time but now. And I guess this is that moment to bring the conversation to the present and look ahead. Now Justice Kennedy is retired and the the overwhelming likelihood is that President Trump is going to fill that seat as he has made it very clear he wants to do with someone reliable in joining those four anti Roe versus Wade votes on the bench. You're going to now have a solid bloc of 5 that may favor more restrictions that may see undue burden as not as allowing for even more restrictions and ultimately may be all right with overturning Roe versus Wade itself. How how do you see the present Supreme Court politics so to speak as changing or possibly changing the strategy of those who are looking to push this issue on the anti-abortion side.

 

Mary Ziegler: Yeah it's interesting because on the one hand you have a lot of actors on the anti-abortion side who lived through Casey. So it's worth remembering that Anthony Kennedy was the sort of Brett Kavanaugh of 1992 right. Everybody thought he was the vote. And then of course you had other folks coming after him like Clarence Thomas who are just sort of shoring up this majority to overturn Roe so many of the anti-abortion leaders who are still prominent in the kind of larger anti-abortion litigation groups lived through that and I think are going to be very cautious now because the lessons that were drawn from Casey by anti-abortion groups at least the larger anti-abortion litigation groups were twofold. I think National Right to Life believes that the court pays a lot of attention to popular opinion and worries that if popular opinion on abortion is going the pro-choice way that that's going to create a problem. Americans United for Life took from Casey that the court believes that women benefit from abortion and that as long as that is true swing justices may be a Chief Justice Roberts figure might not vote their way when the chips are down. So I think that history will make it likely that groups like National Right to Life and AUL are going to continue championing the kinds of laws they have. You know since 2013 if you look at the types of laws those groups are focusing on they haven't changed much. They're focusing on 20 week fetal pain bans. They're focusing on laws banning the most common second trimester abortion procedure. So these are obviously more aggressive than the laws that states have seen upheld but they're not outright abortion bans either. That said I think the landscape has changed and you see more visible and aggressive groups that have sort of split off from these larger anti-abortion groups. So these include Faith to Action which is led by Janet Folger Porter who is a Roy Moore campaign leader in Alabama. She's behind a lot of the heartbeat bans including the one in Iowa that outlaws abortion at around six weeks of pregnancy. You see some groups that are advocating for outright personhood amendments that would functionally criminalize all abortions. So I think you do see more of a challenge to the kind of cautious incremental approach that's defined the movement for so long partly because the courts politics have changed and partly also because the GOP seems to have changed. I think young people read Donald Trump's success as a signal that you don't need to be as moderate in your abortion politics to avoid offending allies in the Republican Party. So I think that's become more unpredictable. But if I were guessing I think the strategy  you're most likely to see play out is one that is a continuation of the history we've been describing where it's a very incremental modest approach that kind of gives the court the opportunity to seem to set the stage for overturning Roe instead of going from a decision in 2016. The most recent decision that upheld or rather that struck down abortion restrictions and bolstered the undue burden test and strengthened abortion rights to overturning Roe and kind of one fell swoop. I don't think that leading anti-abortion groups are going to try that because I think they're worried that they'll see another repeat of Casey basically.

 

Aaron Freiwald: Well and something else you you said earlier strikes me as perhaps still relevant even as 40 years of conservative movement politics may finally see their day you know with a solid block of five members on the Supreme Court. Assuming that Kavanaugh is indeed confirmed and that is the old adage be careful what you wish for and whereas you put it. Perhaps the anti abortion movement doesn't really want Roe vs. Wade. actually overturned because much more can be accomplished to their goals by having it there as the lightning rod that it is and galvanizing people in some of these other ways in enacting some of these other restrictions that may have even broader impact than if you were to turn the issue of abortion back to the states.

 

Mary Ziegler: I think it also depends on. I think one very interesting question for both social movements is if we assume that the court is going to transform Roe in one way or another, and Casey, what's best for you depending on which social movement you are in terms of how the court does that. And I think historically the abortion rights movement had wanted and probably continues to want the courts to be very explicit about the fact that it's overturning Roe because the expectation is that that would be an unpopular thing that would create a political backlash that would have desirable electoral consequences for pro-choice politicians that would make it easier to introduce whether it's state constitutional amendments protecting abortion rights or statutes protecting abortion rights. I think on the anti-abortion side that's a much harder question because I think on the one hand obviously you want the ability to criminalize abortion that's what your movement is about. Right. If you believe in a right to life just overturning Roe isn't that satisfying right. That means that there arguably could be just as many abortions in lots of places and maybe even nationwide the rate wouldn't drop that much it's hard to say. On the other hand. You would worry about a decision that clearly overturned Roe because of the risk of political backlash I described. So I think the kind of litigation strategies are going to be fascinating on both sides and kind of counterintuitive in some instances.

 

Aaron Freiwald: It's absolutely counter-intuitive. Yeah it's absolutely counterintuitive because of course on the very most superficial level an anti-abortion movement activist would say I want Roe versus Wade overturned. And on the most superficial level a pro-choice movement activist would say we must preserve Roe but really what you're describing is the ways in which. And I wonder if they'd actually admit this if they were interviewed and asked this but. But actually the pro-choice activist wants if something's going to happen they want Roe overturned so that that becomes the issue and the abortion movement folks want Roe preserved as a way of allowing them to work on the issues that they can push nationally and at the state level and perhaps achieve even greater success toward their goals. I mean it's completely counter-intuitive.

 

Mary Ziegler: Yeah, I would imagine if you were an anti-abortion lawyer a dream decision might be one that was functionally entirely overturning Roe but in a way that was very hard for laypeople to understand. Right. I think maybe using the undue burden test to essentially say you can do whatever you want. I don't know how you can do that you know from the standpoint of intellectual honesty but I guess if there was enough development of precedent maybe you could. But I think from the pro-life side your goals would be giving states the most ability to regulate abortion possible while minimizing the clarity of the decision in how that happens. I think strategically that would be the smartest idea. And if you're pro-choice I think the other way around where you would want to have the kind of headline grabbing pretty straightforward decision that you could use to motivate pro-choice voters and politicians.

 

Aaron Freiwald: So while we're all talking about the future of Roe v. Wade itself you have a through your research gained access to a lot of the papers and e-mails and other communications within the anti-abortion movement itself as part of what you've been studying over the last number of years. What if you had to look ahead and assume let's assume that that Judge Kavanaugh is appointed and the makeup of the court is what it's going to be at least for the next few years. What do you see then as being the major initiatives that the anti-abortion movement tackles with the benefit of having the court that they've been dreaming of for the last 40 years.

 

Mary Ziegler: Well I think that all of the efforts you see so there are obviously lots of alternatives and if you look historically at how the anti-abortion movement tends to approach these issues there's a kind of throw it at the wall and see what sticks approach you know you have lots and lots of test cases. You let the court kind of take the one it's interested in. But with all of that said there's sort of some common themes running through a lot of the model statutes that abortion opponents are pushing now. A lot of them seek to build on Gonzalez versus Carhart which as listeners probably know as the court's 2007 decision upholding the partial birth abortion ban act. So all of them have in common that they're focused on later abortions. So instead of just allowing lawmakers to ban one usually late term abortion procedure it's allowing lawmakers to ban all abortions later in pregnancy. All of these laws tend to leverage Gonzalez's language about scientific uncertainty. Gonzalez suggested that when there is scientific uncertainty the tiebreaker goes to legislators conclusion. So for example 20 week abortion bans are based on the theory that unborn children experience pain at 20 weeks which is a contested conclusion from a scientific standpoint. Pro lifers are going to argue essentially see Gonzalez versus Carhart we're allowed to ban abortion at this point if at least some scientists think we're right. That's true of later term of bans on common second trimester abortion procedures and it's even true in a kind of weird way of heartbeat bans. But advocates for heartbeat bans say that viability as a kind of marker at which you can ban abortion is incoherent and changes all the time. So why not go with the kind of clean scientifically indisputable heartbeat. So I think viability is going to be a point of attack for everyone and most of the laws you're going to see are going to be trying to move earlier into pregnancy and institute some kind of abortion ban then as a way of sort of eventually moving the ban back all the way to the beginning. I think that's most likely thing.

 

Aaron Freiwald: Well if you move it right. I mean viability at the time of Roe was thought to be 23 24 weeks and we know medically there have been enough advances that you know viability can be 21 weeks maybe even earlier than that but if you push it back to when there's a heartbeat that's effectively criminalizing all abortion because most women probably don't even realize they're pregnant till till the time there's a heartbeat.

 

Mary Ziegler: Yeah absolutely. And I think that heartbeat bans obviously are pretty close to outright bans but you still see that even the champions of heartbeat bans are trying to kind of draw on Gonzalez to justify their approach. So I think pretty much all anti-abortion efforts now to undermine Roe kind of take Gonzalez versus Carhart as a starting point. The other interesting kind of trend in the anti-abortion litigation is what to do about Whole Woman's Health versus Hellerstedt which was the 2016 decision striking down several Texas abortion regulations.

 

Aaron Freiwald: And that had to do with funding?

 

Mary Ziegler: Oh yeah so Whole Woman's Health versus Hellerstedt had two regulations that the court struck down one requiring doctors to have admitting privileges at a hospital within 30 miles of their clinic and other requiring abortion clinics to comply with regulations governing ambulatory surgical centers. Those would both have had the effect of closing most remaining abortion clinics in Texas and the court struck those down and said that the undue burden test actually required courts to consider not just the burdens created by a law but their benefits and essentially said the Texas law had no benefit while being very burdensome. So there is a question if you're an anti-abortion lawyer what you do about that it's a recent decision that from your standpoint is bad. I'm not sure what the strategy is going to be but I've seen signs that the argument is going to be that Whole Woman's Health versus Hellerstedt is unworkable and that that unworkability illuminates why Casey and Roe are in fact unworkable. So the argument is going to be that the undue burden test generates inconsistent results and is vague and Whole Woman's Health establishes that. And if Whole Woman's Health is wrong because the undue burden standard there is unworkable so too probably is Casey and so too probably is Roe. So I think there's also going to be efforts to undermine Roe by starting with Whole Woman's health.

 

Aaron Freiwald: So in other words that strategy would say well we're not necessarily saying we're anti-abortion although we are what we're really saying is from a constitutional interpretation point of view we can't figure out a way to make this work and on a consistent basis.

 

Mary Ziegler: Exactly. I think there's there's definitely going to be a kind of I think a simultaneous effort to get the court to to sound more overtly pro-life right by allowing abortions earlier in pregnancy or allowing abortion bans earlier in pregnancy and an effort to convince the court and the public that Roe and its progeny are unworkable and incoherent and that should be overruled regardless of what you think about fetal life or the state's interest in it.

 

Aaron Freiwald: Well Mary this is fascinating insight into the into not just the history but to the thinking and strategy and tactics of the anti-abortion movement. We tend to look at things all things in the most superficial way and you know you're pro-choice your pro-life you're anti-abortion you want Roe overturned but it's much much more complex than that. And no matter which side of this issue you are on you're going to have to pay attention to these complex differences and distinctions to understand what's happening and how your rights are affected or not or how you want to participate in the debate going forward. So thank you very much. And I will put links in the description of this episode to your bio and to to your books I'm sitting here in the studio looking at a copy of your first book After Roe The Lost History of the Abortion Debate which I'm in the middle of reading and I know other people who want to find out more about this to understand better the kinds of things we've been talking about today ought to take a look at that book and your other books as well so thank you so much Mary for being on the program I really appreciate it. It was great to talk with you.

 

Mary Ziegler: Yeah. Thanks for the conversation.