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Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show

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Speaker 1: where we explored the stories behind the stories in the news.

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Speaker 1: I'm Noah Feldman. Welcome to this week's episode. We're going

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Speaker 1: to talk about abortion rights, one of the most contentious

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Speaker 1: and difficult topics in American public life. Since Justice Brett

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Speaker 1: Kavanaugh was confirmed to the Supreme Court, we've witnessed a

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Speaker 1: radically new trend in states passing anti abortion laws. Time

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Speaker 1: was that states wanted to urge the Supreme Court to

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Speaker 1: chip away at the abortion right. To do that, they

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Speaker 1: passed laws that didn't outlaw abortion altogether, but rather it

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Speaker 1: made it harder to get access to an abortion, like

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Speaker 1: the law passed a couple of years ago by Texas

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Speaker 1: ultimately struck down by the Supreme Court, which raised the

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Speaker 1: restrictions and limitations on abortion clinics and doctors to try

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Speaker 1: to make it harder for women to get an abortion.

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Speaker 1: The theory of those laws was that the best strategy

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Speaker 1: for the pro life movement was to get the Supreme

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Speaker 1: Court to say, we're not overturning Rovuwade, We're going to

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Speaker 1: chip away at the abortion right until there's not much

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Speaker 1: left of it at all. Since Kavanaugh was confirmed, the

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Speaker 1: strategy is one hundred and eighty degrees the other way,

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Speaker 1: States like Alabama most recently have passed laws that just

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Speaker 1: say no abortion at all, typically in the first handful

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Speaker 1: of weeks of life, typically with no exceptions for rape

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Speaker 1: or incest. I call these Kavanaugh laws because they're aimed

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Speaker 1: at the idea that the addition of Justice Kavanaugh to

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Speaker 1: the Court will convince him and also Chief Justice John Roberts,

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Speaker 1: just to drop an opinion that overturns Rovuwade in one

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Speaker 1: fell swoop. If that's going to happen, then we need

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Speaker 1: to start thinking about strategy to deal with it. To

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Speaker 1: discuss strategy, history and how we got here, were joined

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Speaker 1: today by Katherine Colbert. Catherine is a perfect person to

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Speaker 1: discuss these issues with us. Catherine actually argued in the

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Speaker 1: Supreme Court in nineteen ninety two successfully the case of

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Speaker 1: Planned Parenthood v. Casey, right at the moment when people

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Speaker 1: thought that rov Wade was allowed to be overturned the

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Speaker 1: last time. Since then, Catherine has been Director of the

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Speaker 1: Athena Center for Leadership Studies and Professor of Leadership Studies

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Speaker 1: at Barnard College, job from which she just recently stepped down,

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Speaker 1: and she's here to discuss with us where things are going.

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Speaker 1: And as you'll hear, she has lots of things to

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Speaker 1: say that go clear against the conventional wisdom. I imagine

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Speaker 1: that Catherine was going to talk to us about the

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Speaker 1: strategies that she used to convince the Supreme Court to

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Speaker 1: retain the abortion right. Nope, what she's got to say

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Speaker 1: is a lot more interesting and a lot more radical. Catherine,

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Speaker 1: Thank you so much for joining us. Happy to be here, Catherine.

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Speaker 1: I just want to begin by asking about the last

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Speaker 1: round in which we had to face challenges to the

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Speaker 1: abortion right, the round in which you were working at

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Speaker 1: the ACLU and ended up arguing the Planet Parenthood against

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Speaker 1: Casey Case. What strategy were the opponents of abortion rights

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Speaker 1: using then to try to go after the right to choose? Well,

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Speaker 1: the circumstances were very analogous. My case was decided by

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Speaker 1: the Court of Appeals in November of nineteen ninety one,

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Speaker 1: and just as Thomas had just been confirmed to the

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Speaker 1: Supreme Court, it followed the very contentious Anita Hill hearings.

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Speaker 1: So he too, like Kavanaugh, had been accused of sexual harassment.

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Speaker 1: There was a huge outcry in the country about the

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Speaker 1: conservative bent of the court, at least by those who

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Speaker 1: favored the right to choose abortion. You know, there were

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Speaker 1: upcoming presidential elections in that case, the Clinton election in

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Speaker 1: nineteen ninety two, so circumstances were very similar, and everyone believed,

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Speaker 1: including myself, that with the appointment of Justice Thomas, there

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Speaker 1: were five votes on the court to overturn Row, and

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Speaker 1: our strategy was built on that assumption. We thought all

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Speaker 1: along we were going to lose. In fact, in the

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Speaker 1: vote following oral argument, we did lose, but you didn't

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Speaker 1: know that at the time because that was a secret vote.

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Speaker 1: We did not know that at the time. But the

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Speaker 1: circumstances were very similar is today, although I have to

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Speaker 1: say that I don't think the option of winning this

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Speaker 1: time around is as likely as the small chance there

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Speaker 1: was for us, because the new justices to the court

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Speaker 1: are more conservative than Justice Kennedy, and I don't see

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Speaker 1: anything in the history of Justice Roberts that would lead

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Speaker 1: me to believe that he would switch his vote. So

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Speaker 1: we'll talk, we'll talk more about that. I mean, it

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Speaker 1: is worth noting just in passing that one of those justices,

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Speaker 1: Justice Kavanaught, one of the new justices. It's actually also

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Speaker 1: true indirectly of Justice Coursa actually worked for Kennedy. They

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Speaker 1: were law clerks for Justice Kennedy, even though I agree

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Speaker 1: they're seen as more conservative. But what's fascinating to me,

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Speaker 1: Catherinist to hear you say that you went to court

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Speaker 1: in planned parent against casey expecting actually to lose it.

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Speaker 1: What's it like to go into oregue a case in

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Speaker 1: the highest court of the land, with the expectation that

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Speaker 1: you're going down. Well, our strategy was built on if

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Speaker 1: we lose, what's next, And in that case, it was

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Speaker 1: making sure that the public, the court of public opinion,

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Speaker 1: understood what was at stake. Often these things are veiled

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Speaker 1: in legal ease and things that most people don't understand. Frankly,

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Speaker 1: they don't even understand what happens when a federal constitutional

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Speaker 1: right is withdrawn, because it doesn't happen that often. So

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Speaker 1: the first thing we set out to do is to

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Speaker 1: make sure people understood what was at stake, and that

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Speaker 1: was the loss of their liberty and the loss of

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Speaker 1: us and legal abortion. And the second thing was to

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Speaker 1: set it up politically. At that time, we did control

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Speaker 1: Congress and thought we could pass a bill that would

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Speaker 1: protect women on a national level if the outcry was sufficient.

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Speaker 1: Today that's less possible, and I'm sure we will get

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Speaker 1: into what strategies might work now, but I think what

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Speaker 1: we were really doing was to try to make sure

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Speaker 1: people understood what was going on. So one of the

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Speaker 1: reasons that you had to engage in that strategy is

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Speaker 1: that the law that the state of Pennsylvania had passed

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Speaker 1: actually didn't outright ban abortion under all circumstances. Right. It

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Speaker 1: required an informed consent formed be signed twenty four hours

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Speaker 1: before the procedure that would provide information about the fetus.

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Speaker 1: There was a parental consent requirement for minors. There was

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Speaker 1: a requirement that women who were about to have an

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Speaker 1: abortion and who were married and notify their husband. There

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Speaker 1: was some play with the definition of a medical emergency.

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Speaker 1: These were, in retrospect, compared to where we are today,

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Speaker 1: pretty subtle attempts to constrain and limit the right to abortion.

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Speaker 1: So you had to explain to people that even those

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Speaker 1: things would amount seriously chipping away at the right to

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Speaker 1: choose right. And let me make sure that your listeners understand,

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Speaker 1: from my point of view, it makes very little difference

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Speaker 1: whether it's is a statutory provision like those in Pennsylvania

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Speaker 1: or a total ban like that past in Alabama. In

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Speaker 1: both instances, the Supreme Court has the ability to change,

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Speaker 1: well lawyers call the standard of review, what kinds of

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Speaker 1: deference are they going to give to the states to

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Speaker 1: pass restrictive laws. Either type of law can result in

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Speaker 1: the reversal of Row. So this notion that the frontal

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Speaker 1: attack by Alabama kind of laws are worse is really

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Speaker 1: a misnomer. It's not true. The Court can do exactly

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Speaker 1: what it wants to do that undermines the ability of

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Speaker 1: women to get safe medical procedures. Whatever statute is before

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Speaker 1: the court, and there are currently four cases already pending

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Speaker 1: that would give them that opportunity. And let me add

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Speaker 1: just one more thing, which is, at the time of Casey,

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Speaker 1: there were three states that had totally banned abortion, actually

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Speaker 1: more extreme than the Alabama law because they started from conception,

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Speaker 1: not from the six weeks. They had no exceptions for

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Speaker 1: rape and incest. So those were pending in the courts

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Speaker 1: of appeals at the time we went up in cases.

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Speaker 1: So can we dive a little deeper into that, because

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Speaker 1: I think from the standpoint of a pro choice advocate,

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Speaker 1: I totally hear what you're saying. I understand that you

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Speaker 1: know there might be no difference in some sense between

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Speaker 1: a case that comes to the Supreme Court and gives

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Speaker 1: the Court the chance to overturn Row when it's mildly

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Speaker 1: limiting or had a medium weight limitation on the right

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Speaker 1: to choose, and an absolute band. But from the standpoint

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Speaker 1: of conservatives who don't want to have a headline that

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Speaker 1: says Court overturns Rov. Wade, but also want to limit

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Speaker 1: the right to abortion, mightn't there be a huge difference

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Speaker 1: between those kinds of laws. And let me say what

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Speaker 1: I mean by that. So imagine that you are Chief

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Speaker 1: Justice John Roberts. You know, we don't know whether you

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Speaker 1: would vote directly to uphold a law that ban abortion

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Speaker 1: from conception or from six weeks. But in general, we

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Speaker 1: do know that Chief Justice Roberts prefers, in lots of

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Speaker 1: areas of jurisprudence to chip away at precedence, to weaken

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Speaker 1: old precedents, make them increasingly irrelevant, rather than to overturn

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Speaker 1: them in one fell swoop. So if we extrapolate from

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Speaker 1: Roberts's feelings with respect to lots of other liberal precedents

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Speaker 1: where he likes to chip away strategy, you know, death

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Speaker 1: by a thousand cuts. Then presumably he would prefer to

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Speaker 1: gradually uphold limited restrictions on the abortion right, to weaken

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Speaker 1: the abortion right over time, rather than issuing an opinion

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Speaker 1: that in one go generates a headline that says court

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Speaker 1: overturns Roe v. Wade. So do you disagree with that, Catherine?

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Speaker 1: That from his standpoint, imagining that that's his goal, that

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Speaker 1: there might be a difference between the different kinds of

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Speaker 1: laws that might come before the court, I don't, Actually

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Speaker 1: I don't. The issue is always a political calculus, that is,

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Speaker 1: are you going to whip up the opposition? The real

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Speaker 1: problem here for conservatives is that Americans believe that abortion

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Speaker 1: ought to be legal in most circumstances. Some want more restrictions,

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Speaker 1: but not very many more restrictions, but only about twenty

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Speaker 1: some percent think that abortion ought to be outlawed. And

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Speaker 1: so when you are talking about taking away well, at

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Speaker 1: one point was a fundamental constitutional right for the first

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Speaker 1: time in history, it is hard to give much solace

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Speaker 1: to the guy who just wants to say, let me

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Speaker 1: cover up what I'm doing. In order to appease my base,

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Speaker 1: but at the same time not cause too much trouble.

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Speaker 1: The point is, Americans disagree with the position the Court's

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Speaker 1: going to take, and they have. More importantly, it is

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Speaker 1: a violation of fundamental principles of starry decisis, which says

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Speaker 1: that when Americans rely upon precedent, when precedent is reaffirmed

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Speaker 1: over and over and over again, you ought to keep

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Speaker 1: that precedent, even if you disagree with it or would

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Speaker 1: have decided differently the first time. So, Catherine, as an advocate, though,

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Speaker 1: wouldn't your goal if you were arguing one of these

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Speaker 1: cases coming before the Supreme Court now, wouldn't your goal

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Speaker 1: be in a perfect world to try to appeal John

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Speaker 1: Roberts and maybe even Brett kavanaughf John Roberts did it

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Speaker 1: away from the position of saying we're going to overturn

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Speaker 1: and towards the direction of something more in the middle.

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Speaker 1: Or do you think that that's not what pro choice

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Speaker 1: advocates should be trying to do strategically, that they should

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Speaker 1: just be laying it right out there for the Chief

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Speaker 1: Justice and saying, go ahead and do it and then

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Speaker 1: watch the backlash. Well, I think that comes down, and

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Speaker 1: I'm not arguing these cases, and obviously we don't know

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Speaker 1: which one is going up forward. In our case, we

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Speaker 1: made the political calculation that winning that fifth vote was

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Speaker 1: impossible and went forward with the idea of trying to

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Speaker 1: restore the rights legislatively. Today, I still believe that Justice

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Speaker 1: Roberts is not likely to support even the Casey formulation,

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Speaker 1: and that for many women in this country, liberalizing or

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Speaker 1: giving states greater latitude to restrict abortion, for example, allowing

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Speaker 1: regulations like what was before the Court in the Texas

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Speaker 1: case a couple of years ago, effectively outlaws abortion for

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Speaker 1: many many women across the nation, makes it possible to

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Speaker 1: obtain without having to travel to a state that has

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Speaker 1: greater protections. You know, everybody wants to approach us from

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Speaker 1: the point of view of the justices. I want to

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Speaker 1: approach it from the point of view of the women

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Speaker 1: who are affected by these laws. For them, whether the

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Speaker 1: Court expands Casey and permits greater regulation or whether there's

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Speaker 1: an outright ban, there's very little difference. And if you're young,

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Speaker 1: and if you're poor, and if you have no access

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Speaker 1: to transportation to different states, or if you're living in

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Speaker 1: an abusive relationship that really matters much. That means we

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Speaker 1: need to start thinking about other ways to protect women's liberties.

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Speaker 1: I hear you loud and clear. I'm glad you brought

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Speaker 1: up the case from a couple of years ago, a

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Speaker 1: whole Women's health against hellerstat which, just to remind listeners,

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Speaker 1: came out of Texas and involved a state law that

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Speaker 1: was designed effectively to make it much much harder for

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Speaker 1: abortion providers actually to function in state. The idea was

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Speaker 1: to impose restrictions and requirements on clinics and physicians who

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Speaker 1: performed abortions that would be effectively the same as putting

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Speaker 1: them out of business in order to make it much

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Speaker 1: harder for abortion to be obtained while simultaneously winning over

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Speaker 1: the middle of the court. And in that instance, Justice Kennedy,

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Speaker 1: who was still on the Court at that time, wasn't

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Speaker 1: buying it, and he said that those laws violated the

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Speaker 1: standard that he set up in plan pared against Casey,

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Speaker 1: the undue burden standard. He was willing to join an

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Speaker 1: opinion that said that they impose an undue burden on women.

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Speaker 1: Chief Justice Roberts, on the other hand, was in the descent,

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Speaker 1: and he thought without saying explicitly that he thought that

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Speaker 1: Casey should be overturned, that Casey could be applied to

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Speaker 1: allow these restrictions. That's where I and I think others

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Speaker 1: are getting the idea that Roberts's preferred strategy on the

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Speaker 1: other side would be a slow chipping away at the

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Speaker 1: abortion right rather than a one fell swoop overturning. But

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Speaker 1: I hear you saying, Catherine that you're not that interested

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Speaker 1: in strategizing for winning in the Supreme Court. Your view

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Speaker 1: is abortion rights are going to lose in the Supreme

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Speaker 1: Court and we have to think about what to do

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Speaker 1: after that happens. I am I getting that clear. I

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Speaker 1: want to make sure I get it clear. That's that's clear.

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Speaker 1: That is whether you're chipping away or you're totally overruling

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Speaker 1: role the effect for women's access to abortion, and let

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Speaker 1: me just say also contraception, because that's next down the

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Speaker 1: line is going to be seriously in jeopardy. And the

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Speaker 1: only thing in my mind that matters is how are

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Speaker 1: women actually affected who need valid and safe medical procedures.

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Speaker 1: And that's what we're talking about, and that's what we

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Speaker 1: need to focus on. So I want to I want

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Speaker 1: to turn to that in just a second. But I

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Speaker 1: just want to say first, to be completely honest, my

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Speaker 1: mind is kind of blown by your answer, because here

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Speaker 1: you argued the case in which theream Court you know,

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Speaker 1: famously took a middle ground. They basically said, you know,

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Speaker 1: we're not that crazy about Roe v. Wade, but it's

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Speaker 1: been in place at the time for roughly twenty years.

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Speaker 1: We're going to uphold it on the principle of sterry

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Speaker 1: decisis the idea that we don't want to overturn a

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Speaker 1: well established precedent, and Justice Kennedy famously said that liberty

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Speaker 1: finds no refuge and a jurisprudence of doubt, by which

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Speaker 1: is a little hard to know what he meant by that,

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Speaker 1: but it sounds like what he means is we can't

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Speaker 1: be constantly taking away rights that have traditionally been granted.

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Speaker 1: So I imagined, wrongly that your view would be that

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Speaker 1: it would be good to win some middle ground holding pattern,

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Speaker 1: and maybe that would buy us, you know, enough time

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Speaker 1: for the public to be able to block laws like

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Speaker 1: those are being passed in Alabama and elsewhere. But I'm hearing,

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Speaker 1: I'm hearing the opposite from you, and I'm also hearing

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Speaker 1: the opposite of how you were thinking when you went

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Speaker 1: into when you went into Casey, and that's that's great.

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Speaker 1: I'm learning a huge amount from this conversation, So thank

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Speaker 1: you to tell me what you think advocates for abortion

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Speaker 1: rights then should be doing. What strategy would you like

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Speaker 1: to see followed, both in the court in cases where

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Speaker 1: in your review a pro choice people are going to lose,

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Speaker 1: and also more broadly, in the society. So first, in

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Speaker 1: the court, clearly, whatever cases are headed there, it sure

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Speaker 1: would be nice to delay them as long as possible.

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Speaker 1: Again on the theory, if you're going to lose, let's

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Speaker 1: lose later. But second, I think in the courts, we

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Speaker 1: want to look to state courts, particularly state supreme courts,

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Speaker 1: to establish independent state constitutional rights to abortion and reproductive freedom.

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Speaker 1: A number of states have done that in the context

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Speaker 1: of medicaid funding for abortion. For example, the Kansas Supreme

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Speaker 1: Court just a couple of weeks ago issued an opinion

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Speaker 1: establishing an independent right, and the value of that is

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Speaker 1: it permits state courts to then strike down as unconstitutional

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Speaker 1: under the standards that are independent to the states, any

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Speaker 1: restrictive laws that are passed at the state level. So

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Speaker 1: I hear you, and it makes perfect sense. Isn't that hopeless? Though,

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Speaker 1: in the very states that are passing the most restrictive

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Speaker 1: anti abortion laws, the Alabama's, the Georgia's, the Iowas I mean,

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Speaker 1: isn't it precisely those states where state supreme courts, and

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Speaker 1: in some cases I should add, those state supreme courts

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Speaker 1: are elected. The Alabama state Supreme Court is actually elected.

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Speaker 1: Let me talk about strategies that seem unlikely to work.

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Speaker 1: Isn't it the case that almost all states where a

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Speaker 1: legislative majority would enact a ban on abortion are also

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Speaker 1: the same states where the state supreme court would say

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Speaker 1: it's constitutional to do so. Yeah, some, but not all. So,

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Speaker 1: for example, Pennsylvania has this democratically controlled state Supreme Court.

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Speaker 1: I don't know where they're going to come down on abortion,

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Speaker 1: but their legislature is very red and they just passed

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Speaker 1: a ban on abortions if you needed it in cases

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Speaker 1: of down syndrome. So the answer is yes and no.

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Speaker 1: States very Alaska, for example, very libertarian state. Their supreme

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Speaker 1: court reflects that libertarian notion. Look, and I'm talking about

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Speaker 1: a ten year strategy here. We're talking about how do

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Speaker 1: you preserve rights in the short term in the long term,

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Speaker 1: and obviously state constitutions are a longer term strategy. I've

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Speaker 1: always believed you need to establish a parallel and independent

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Speaker 1: right at the state level. So it might work in

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Speaker 1: purple states, in other words, where the legislature is read

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Speaker 1: but the court is bluish well, and also in states

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Speaker 1: where the Supreme Court is elected and the majority of

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Speaker 1: the citizens believe in the right to choose. Just because

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Speaker 1: the legislature is read doesn't mean the citizens rate is.

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Speaker 1: And it's a lot easier to elect two or three

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Speaker 1: or four justices to a Supreme Court than an entire legislature,

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Speaker 1: So you know, there's plenty of opportunities there. So go

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Speaker 1: on then to talk about the other strategies that you

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Speaker 1: are alluding to earlier. So on the legislative level, obviously,

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Speaker 1: the preferred route is to have a federal constitutional right

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Speaker 1: or a federal l slate of right, so that women

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Speaker 1: have the same rights in every state. You know, your

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Speaker 1: ability to make reproductive decisions shouldn't depend on where you live.

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Speaker 1: To do that, you would need to take back control

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Speaker 1: of the Senate with a pro choice majority and pro

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Speaker 1: choice leadership, So that would probably mean turning it blue,

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Speaker 1: and you would need a pro choice president who could

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Speaker 1: sign it into law. Again, a possibility in twenty twenty,

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Speaker 1: less likely than it has been in some years, but

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Speaker 1: certainly a possibility in twenty twenty. But the other route,

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Speaker 1: which I am firmly of the view that we need

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Speaker 1: to pursue, is that state legislatures are often controlled by

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Speaker 1: very few people. A few flips won't make a difference

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Speaker 1: in terms of control. A pro choice governor who's willing

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Speaker 1: to veto a bad bill is really key. So we

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Speaker 1: need to look politically at the states. I would start

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Speaker 1: with electing pro choice governors. My preferences women governors who

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Speaker 1: understand these issues, but certainly any governor who's pro choice

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Speaker 1: is phenomenal. And then to take control of at least

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Speaker 1: one chamber of a state legislature in order to block

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Speaker 1: bad laws. You know, in the days after Webster was

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Speaker 1: decided and before Casey, I was the aclused person who

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Speaker 1: went out to the states and developed the expertise and

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Speaker 1: killing bad bills. And there's all kinds of ways you

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Speaker 1: can do that. I mean, I was in forty four

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Speaker 1: states in those years, in a two year period where

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Speaker 1: there were over eight hundred restrictions introduced, and there's lots

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Speaker 1: and lots of ways to kill bad bills, but the

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Speaker 1: easiest and best is to either have leadership of one

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Speaker 1: chamber or a governor who can veto And frankly, we

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Speaker 1: ought to be focusing it on it strategically geographically because

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Speaker 1: now most blue states are on the coasts, and we

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Speaker 1: got to give women in the middle of the country

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Speaker 1: some options or at home. May I try to dig

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Speaker 1: a little deeper on your proposal for a federal law,

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Speaker 1: obviously requiring a pro choice majority in both houses and

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Speaker 1: a pro choice president that would protect abortion rights for women.

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Speaker 1: I have sort of two questions about that. The first is,

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Speaker 1: do you think that the Democrats should have passed such

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Speaker 1: a law during those handful of brief moments over the

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Speaker 1: last fifty years where they had that There was a

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Speaker 1: brief moment in the content administration where that existed and

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Speaker 1: another brief moment in the Obama administration where that existed.

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Speaker 1: Did the Democrats miss an opportunity thinking well, the Constitution

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Speaker 1: now protect abortion rights, so we don't need a federal law.

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Speaker 1: Should they have tried to pass a law? Then? No,

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Speaker 1: because it would have undercut the constitutional right which we

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Speaker 1: believed to exist. So it's not a story of missopportunity.

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Speaker 1: So let me ask a follow up question. Then, imagine

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Speaker 1: the Congress did pass such a law. And I know,

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Speaker 1: I don't want to get too into the constitutional law weeds,

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Speaker 1: since you argue constitutional cases and I teach constitutional law

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Speaker 1: for a living, and it would be easy for us

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Speaker 1: to go to into the weeds. But I'm wondering, wouldn't

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Speaker 1: such a bill be vulnerable to the idea that the

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Speaker 1: Supreme Court could strike it down. A conservative court could

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Speaker 1: strike it down by saying it was an overreach and

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Speaker 1: that the federal government didn't have the capacity to block

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Speaker 1: the states from passing laws that restrict women's right to abortion.

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Speaker 1: Even a conservative court, I think would be going very

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Speaker 1: far to do that. I just don't see them doing that.

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Speaker 1: I mean, they'd be going pretty far to strike down

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Speaker 1: Roe v. Wade, Right, I mean, we're our scenario is

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Speaker 1: a precisely scenario where they've gone all the way to,

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Speaker 1: as you said, eliminating a constitutional right. It's one of

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Speaker 1: the first times the Court would ever have done that. Right,

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Speaker 1: But at the same time, that is their sweet spot,

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Speaker 1: that is the role of the Supreme Court is to

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Speaker 1: interpret the Federal Constitution. Well, I don't see any constitutional

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Speaker 1: basis for saying that a federal statute protective of women's

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Speaker 1: rights was undermining the ability of states to control in

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Speaker 1: this area. That the whole nature of federalism it has

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Speaker 1: allows federal statutory protection. I just don't sing like a

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Speaker 1: ninth Amendment. What I had in mind was the Violence

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Speaker 1: Against Women Act, which you know, passed by by actually

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Speaker 1: a bipartisan majority and signed into law, which included, among

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Speaker 1: other things, provisions allowing suits by women who had been

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Speaker 1: subject to gender motivated violence. And the Supreme Court struck

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Speaker 1: that law down, that part of the law down on

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Speaker 1: the ground that Congress had had overreached itself. So that

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Speaker 1: was the sort of thing I had in mind. But

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Speaker 1: that was a commerce clause argument, that is, there was

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Speaker 1: no authority to pass the federal law. I think that

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Speaker 1: there's multiple a locus of authority to pass a federal statute.

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Speaker 1: Both the Fourteenth Amendment, Section nine, the commerce clause. I mean,

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Speaker 1: women are going from state to state, doctors are going

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Speaker 1: from state to state. Commerce is moving from state. I

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Speaker 1: just don't see it being comparable. And then the other

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Speaker 1: The other question that I had about that was, you know,

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Speaker 1: one of the things that pro life advocates have sometimes thought,

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Speaker 1: it's kind of there, it goes even beyond overturning Roe v. Wade.

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Speaker 1: It's on there, you know, it's on their bucket list.

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Speaker 1: Would be for the Supreme Court actually to say that

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Speaker 1: under the fourteen Amendment of the Constitution, which says the

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Speaker 1: government can't deprive persons of life, liberty, or property, that

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Speaker 1: fetuses our persons. And if the Court were to say

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Speaker 1: that a fetus was a person, then it would be

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Speaker 1: impossible for states. I mean, that would take as much further.

432
00:25:43,836 --> 00:25:46,196
Speaker 1: That would mean not only that we'd have the opportunity

433
00:25:46,196 --> 00:25:49,156
Speaker 1: for some states to have laws prohibiting abortion and other

434
00:25:49,196 --> 00:25:52,396
Speaker 1: states to permit it, that would actually effectively outlaw a

435
00:25:52,476 --> 00:25:54,996
Speaker 1: worship at the national level. Yeah, I just don't see

436
00:25:55,036 --> 00:25:58,076
Speaker 1: even this cord going that far for lots of very

437
00:25:58,076 --> 00:26:01,996
Speaker 1: practical reasons. Because once you say a fetis is a person,

438
00:26:02,596 --> 00:26:05,036
Speaker 1: does that mean they get a Social Security card? Does

439
00:26:05,076 --> 00:26:08,516
Speaker 1: that mean they you know, have rights in car accidents

440
00:26:08,556 --> 00:26:12,596
Speaker 1: and murder charges and all. I mean, there's just so

441
00:26:12,676 --> 00:26:19,916
Speaker 1: many implications of creating personhood and very little support for it,

442
00:26:20,116 --> 00:26:23,396
Speaker 1: even you know, even in Row, the court was very

443
00:26:23,436 --> 00:26:27,196
Speaker 1: clear that wasn't a place they were going. And I

444
00:26:27,236 --> 00:26:30,156
Speaker 1: haven't seen any court, even at the state level, go

445
00:26:30,236 --> 00:26:33,036
Speaker 1: that far, or any district court go that far. It's

446
00:26:33,076 --> 00:26:36,036
Speaker 1: just I just don't see it happening. Although that might

447
00:26:36,036 --> 00:26:38,836
Speaker 1: be a strategic concern if if there was a movement

448
00:26:38,876 --> 00:26:41,436
Speaker 1: to past federal legislation, that there might be some worry

449
00:26:41,476 --> 00:26:43,516
Speaker 1: that it would be an invitation to the court to

450
00:26:44,556 --> 00:26:47,636
Speaker 1: do that right, and in fact, they have done that

451
00:26:47,676 --> 00:26:50,236
Speaker 1: in past years. For example, there was a fetal personhood

452
00:26:50,236 --> 00:26:55,396
Speaker 1: amendment to the Constitution introduced in Congress repeatedly for probably

453
00:26:55,396 --> 00:26:58,276
Speaker 1: twenty years. Yeah, but it didn't seem to go anywhere.

454
00:26:58,356 --> 00:27:00,956
Speaker 1: So going back to the state legislatures, which is where

455
00:27:01,036 --> 00:27:06,436
Speaker 1: you see the battle, the battle building, it sounds to me,

456
00:27:06,476 --> 00:27:08,676
Speaker 1: and correct me if I'm wrong here, what you're picturing

457
00:27:08,716 --> 00:27:13,396
Speaker 1: is kind of ongoing long range guerrilla warfare at the

458
00:27:13,436 --> 00:27:17,796
Speaker 1: state level between pro choice and pro life advocates, with

459
00:27:17,836 --> 00:27:21,276
Speaker 1: their pro life advocates constantly trying to get legislatures to

460
00:27:21,356 --> 00:27:24,796
Speaker 1: pass laws and pro choice advocates going out to those states,

461
00:27:24,836 --> 00:27:27,076
Speaker 1: just as you did to forty four states. You said,

462
00:27:27,556 --> 00:27:30,316
Speaker 1: you know, using various political techniques to try to kill

463
00:27:30,396 --> 00:27:34,436
Speaker 1: bad bills and to try to elect more liberal representatives

464
00:27:34,516 --> 00:27:38,676
Speaker 1: or governors. And in that environment, it seems as though

465
00:27:39,156 --> 00:27:41,436
Speaker 1: there is the real risk that in a bunch of states,

466
00:27:41,516 --> 00:27:43,196
Speaker 1: especially as you point out states in the middle of

467
00:27:43,276 --> 00:27:47,196
Speaker 1: the country, there will be women who can't afford to

468
00:27:47,236 --> 00:27:49,916
Speaker 1: travel to other states to have an abortion, who are

469
00:27:49,916 --> 00:27:55,156
Speaker 1: really going to face substantial constraints on their right to choose.

470
00:27:55,236 --> 00:27:58,556
Speaker 1: Is that your you know, all things being equal, prediction

471
00:27:58,956 --> 00:28:00,836
Speaker 1: of where we're headed, and if that sounds like what

472
00:28:00,876 --> 00:28:02,836
Speaker 1: you're saying, and I want to be clear, if that

473
00:28:02,916 --> 00:28:06,636
Speaker 1: is where you're sit away saying, yeah, Unfortunately, look at

474
00:28:06,676 --> 00:28:11,396
Speaker 1: elections really matter. A speech for medical students for choice

475
00:28:11,436 --> 00:28:15,316
Speaker 1: two weeks before the twenty sixteen election, and with the

476
00:28:15,356 --> 00:28:19,076
Speaker 1: election of Hillary Clinton, we would have been absolutely assured

477
00:28:19,156 --> 00:28:21,556
Speaker 1: that there wasn't the next justice of the Supreme Court

478
00:28:21,596 --> 00:28:24,036
Speaker 1: would have been pro choice and none of this would

479
00:28:24,076 --> 00:28:27,636
Speaker 1: have mattered. But yes, elections matter, and they they're going

480
00:28:27,716 --> 00:28:29,956
Speaker 1: to matter for women in a whole host of ways.

481
00:28:29,996 --> 00:28:33,116
Speaker 1: Abortions kind of the leading the tip of the spear.

482
00:28:33,636 --> 00:28:36,276
Speaker 1: But don't think that the twenty five men in Alabama

483
00:28:36,316 --> 00:28:38,476
Speaker 1: who passed this bill aren't coming after women in a

484
00:28:38,516 --> 00:28:43,436
Speaker 1: whole variety of ways, whether it be equal pay, or

485
00:28:43,476 --> 00:28:46,556
Speaker 1: whether it be sexual harassment, or whether it be all

486
00:28:46,636 --> 00:28:51,516
Speaker 1: kinds of protections that we have understood to be constitutionally

487
00:28:51,516 --> 00:28:55,116
Speaker 1: protected at the federal level. So I in my view, yes,

488
00:28:55,156 --> 00:28:59,436
Speaker 1: it is trench warfare, but pro choice Americans need to

489
00:28:59,516 --> 00:29:02,156
Speaker 1: understand that if they're going to preserve their liberties, we

490
00:29:02,236 --> 00:29:04,756
Speaker 1: got to work hard at it, and we've got to

491
00:29:05,036 --> 00:29:07,636
Speaker 1: do more than protest in the street. We've got to

492
00:29:08,516 --> 00:29:11,636
Speaker 1: go out and of us and send postcards and make

493
00:29:11,676 --> 00:29:14,396
Speaker 1: phone calls and do all of the hard work that

494
00:29:14,476 --> 00:29:17,756
Speaker 1: most people don't love to do. But the anti choice

495
00:29:17,796 --> 00:29:20,396
Speaker 1: movement has been very good at may I ask you

496
00:29:20,436 --> 00:29:23,956
Speaker 1: about following up on that idea that the pro lifers

497
00:29:23,956 --> 00:29:26,116
Speaker 1: have been very successful what they do. What sounds like

498
00:29:26,116 --> 00:29:27,836
Speaker 1: it might be maybe I'm wrong, but a kind of

499
00:29:27,836 --> 00:29:30,596
Speaker 1: tension between two different things that I hear you're saying.

500
00:29:30,756 --> 00:29:33,476
Speaker 1: So on the one hand, I hear you saying that

501
00:29:33,516 --> 00:29:36,636
Speaker 1: this is a long term battle. It's trench warfare or

502
00:29:36,996 --> 00:29:41,316
Speaker 1: guerrilla warfare in some kind of long run, painful warfare

503
00:29:41,676 --> 00:29:45,156
Speaker 1: in which in your read right now, the pro choice

504
00:29:45,156 --> 00:29:48,996
Speaker 1: side is losing and in your prediction, is about to

505
00:29:49,076 --> 00:29:54,436
Speaker 1: lose really the crown jewel of not only abortion rights,

506
00:29:54,436 --> 00:29:56,956
Speaker 1: but arguably of women's rights in the United States, namely

507
00:29:57,516 --> 00:30:00,916
Speaker 1: the holding of Roe v. Wade. On the other hand,

508
00:30:01,196 --> 00:30:04,436
Speaker 1: you pointed out earlier that only maybe a quarter of

509
00:30:04,476 --> 00:30:08,996
Speaker 1: Americans actually will tell polsters that they think there should

510
00:30:09,196 --> 00:30:12,996
Speaker 1: be an abortion right under any circumstances. So if those

511
00:30:13,036 --> 00:30:16,476
Speaker 1: things are both true, why are they both true? Why

512
00:30:16,676 --> 00:30:20,596
Speaker 1: is it if it's a relatively small number of Americans

513
00:30:20,676 --> 00:30:25,076
Speaker 1: who support the significant restriction of abortion rights, that the

514
00:30:25,236 --> 00:30:30,276
Speaker 1: pro choice forces are losing as badly as you've described

515
00:30:30,316 --> 00:30:33,716
Speaker 1: them as losing. Well, for two reasons. It's called political power.

516
00:30:33,836 --> 00:30:38,076
Speaker 1: It's called Senator McConnell, who blocked President Obama's appointment to

517
00:30:38,076 --> 00:30:41,756
Speaker 1: the Court and his push for anti choice judges and

518
00:30:41,996 --> 00:30:44,596
Speaker 1: taking over the crown jewel, which was the Supreme Court.

519
00:30:44,996 --> 00:30:48,796
Speaker 1: And that's power. The Republicans have never been afraid to

520
00:30:48,876 --> 00:30:55,196
Speaker 1: exercise power, and Democrats have been more reluctant to get

521
00:30:55,236 --> 00:30:58,636
Speaker 1: into that brawl. But the other thing, and I think

522
00:30:58,636 --> 00:31:01,956
Speaker 1: this is important for people to understand, is that legislatures

523
00:31:01,996 --> 00:31:07,356
Speaker 1: don't often who don't always reflect the views of their constituents.

524
00:31:07,476 --> 00:31:10,756
Speaker 1: Unless they're forced to do so. And it is instructive

525
00:31:10,796 --> 00:31:15,396
Speaker 1: to me to see Republicans now get nervous when they

526
00:31:15,476 --> 00:31:17,756
Speaker 1: understand that Roe is in jeopardy, that oh, all of

527
00:31:17,836 --> 00:31:20,036
Speaker 1: a sudden, they're going to have to be accountable for

528
00:31:20,116 --> 00:31:23,996
Speaker 1: their vote, because up until now they've kind of coasted

529
00:31:24,676 --> 00:31:27,276
Speaker 1: without having to either take a position or to take

530
00:31:27,276 --> 00:31:31,196
Speaker 1: a position that wasn't really thought seriously as being significant.

531
00:31:31,876 --> 00:31:33,876
Speaker 1: Let me just say one other thing. In the days

532
00:31:33,996 --> 00:31:38,476
Speaker 1: after Casey was handed down, the first maybe five years,

533
00:31:38,996 --> 00:31:43,236
Speaker 1: there was very little activity at the state level restricting abortion.

534
00:31:43,276 --> 00:31:45,516
Speaker 1: There was some there was passage of laws similar to

535
00:31:45,556 --> 00:31:48,996
Speaker 1: the Pennsylvania law, but you didn't see these huge efforts

536
00:31:49,036 --> 00:31:52,076
Speaker 1: that you're seeing now. And the change started to happen

537
00:31:52,276 --> 00:31:58,396
Speaker 1: in twenty ten following the census, when there was reapportionment, redistricting,

538
00:31:59,076 --> 00:32:01,676
Speaker 1: a lot of jaiman during a lot of restriction on

539
00:32:01,836 --> 00:32:05,196
Speaker 1: voting rights. You began to see more and more state

540
00:32:05,276 --> 00:32:12,116
Speaker 1: legislature's gubernatorial seats taken over by the Republicans and therefore

541
00:32:12,156 --> 00:32:16,276
Speaker 1: an uptick in the anti choice activity. To me, what's

542
00:32:16,316 --> 00:32:19,036
Speaker 1: really critical is that we understand that voting rights is

543
00:32:19,036 --> 00:32:22,756
Speaker 1: now a women's issue, that if we're gonna protect women's rights.

544
00:32:22,796 --> 00:32:24,956
Speaker 1: We need to have fair districts, We need to have

545
00:32:25,036 --> 00:32:28,636
Speaker 1: fair voting rules, We need to count every vote. Until

546
00:32:28,716 --> 00:32:32,716
Speaker 1: those things are fixed, minorities are able to exert more

547
00:32:32,716 --> 00:32:36,636
Speaker 1: power and control than is particularly fair. I really want

548
00:32:36,676 --> 00:32:39,956
Speaker 1: to emphasize just how profound the thing you just said was,

549
00:32:39,996 --> 00:32:44,156
Speaker 1: at least to me. You said legislatures do not necessarily

550
00:32:44,196 --> 00:32:48,276
Speaker 1: reflect the views of their constituents. I mean, I can't

551
00:32:48,276 --> 00:32:52,636
Speaker 1: think of really a more devastating critique of democracy itself,

552
00:32:52,996 --> 00:32:54,836
Speaker 1: you know. I mean, the whole theory of democracy is

553
00:32:54,836 --> 00:32:57,476
Speaker 1: supposed to be that we elect representatives and that they

554
00:32:57,636 --> 00:33:02,636
Speaker 1: represent the views that we hold. And you know, if

555
00:33:02,636 --> 00:33:06,476
Speaker 1: they're not representing the views that we hold, then democracy

556
00:33:06,596 --> 00:33:11,996
Speaker 1: is failing in some pretty pretty fundamental sense. I mean,

557
00:33:12,036 --> 00:33:15,036
Speaker 1: do you do you share that the pessimism that sounds

558
00:33:15,036 --> 00:33:19,836
Speaker 1: to me is implicit in that observation? You know, I

559
00:33:19,956 --> 00:33:24,556
Speaker 1: actually feel very optimistic that women are getting it. Let

560
00:33:24,556 --> 00:33:27,156
Speaker 1: me give you an example. Vote Run Lead, an organization

561
00:33:27,196 --> 00:33:30,076
Speaker 1: in New York was training women to run for political office.

562
00:33:31,036 --> 00:33:34,676
Speaker 1: Last week, they had fourteen hundred women in twenty states

563
00:33:35,196 --> 00:33:37,956
Speaker 1: coming out to learn how to run for political office.

564
00:33:38,396 --> 00:33:41,676
Speaker 1: That says to me, there's a tsunami going on among

565
00:33:42,156 --> 00:33:45,556
Speaker 1: women who are saying this ain't fair. We got to

566
00:33:45,596 --> 00:33:48,676
Speaker 1: get involved, we've got to fix it. And that's a

567
00:33:48,716 --> 00:33:53,076
Speaker 1: really good sign. But that dichotomy between who has power

568
00:33:53,076 --> 00:33:57,556
Speaker 1: and who could earn power at some later date is

569
00:33:57,716 --> 00:33:59,556
Speaker 1: kind of where we're at right now. And all I

570
00:33:59,556 --> 00:34:03,516
Speaker 1: can do is be optimistic that we will work really

571
00:34:03,556 --> 00:34:06,756
Speaker 1: hard to make a difference here. So your optimism, if

572
00:34:06,796 --> 00:34:09,876
Speaker 1: I summing it up correctly, is it begins with the

573
00:34:09,876 --> 00:34:13,036
Speaker 1: pessimism that you think rov Wade is done for. But

574
00:34:13,116 --> 00:34:19,196
Speaker 1: then you're optimistically expecting a major mobilization of women across

575
00:34:19,236 --> 00:34:24,276
Speaker 1: the country to run for office and win and change

576
00:34:24,356 --> 00:34:27,236
Speaker 1: laws across the country, so that in the end, the

577
00:34:27,356 --> 00:34:30,156
Speaker 1: final outcome, though of course the loss of roev Wade

578
00:34:30,196 --> 00:34:32,956
Speaker 1: would be a terrible thing for women's rights, might actually

579
00:34:32,996 --> 00:34:36,156
Speaker 1: be greater for the for the greater good, because it

580
00:34:36,156 --> 00:34:38,956
Speaker 1: will mobilize so many people to go out and vote.

581
00:34:39,036 --> 00:34:42,516
Speaker 1: Is that the Is that a fair characterization? Well, I'm

582
00:34:42,516 --> 00:34:44,956
Speaker 1: hoping at least we could get back to where we

583
00:34:44,956 --> 00:34:48,196
Speaker 1: were when we had federal constitutional protection, and that may

584
00:34:48,236 --> 00:34:50,116
Speaker 1: be a long time. You know, if you don't have

585
00:34:50,156 --> 00:34:52,396
Speaker 1: some optimism that you can make a difference, it's hardly

586
00:34:52,396 --> 00:34:54,916
Speaker 1: worth joining the fight. So you know, I try to

587
00:34:54,956 --> 00:34:58,036
Speaker 1: remain as optimistic spas well. It's inspiring to hear you

588
00:34:58,316 --> 00:35:03,476
Speaker 1: maintaining optimism even through a veil of what strikes me

589
00:35:03,516 --> 00:35:07,596
Speaker 1: as extremely powerful pessimism. It's a you have a story

590
00:35:07,636 --> 00:35:10,276
Speaker 1: of the worst of times maybe leading to the best

591
00:35:10,316 --> 00:35:13,156
Speaker 1: of times. So I'm very grateful to you for sharing

592
00:35:13,196 --> 00:35:16,916
Speaker 1: that vision with us. It's fascinating and I can't say

593
00:35:16,916 --> 00:35:19,036
Speaker 1: it's purely inspiring, because the worst of time's part is

594
00:35:19,036 --> 00:35:21,476
Speaker 1: pretty depressing, but at least there's at least there's a

595
00:35:21,516 --> 00:35:23,516
Speaker 1: silver lining that you're that you're describing in the in

596
00:35:23,556 --> 00:35:26,756
Speaker 1: the looming storm. Thank you so much for reading with us. Thanks,

597
00:35:26,596 --> 00:35:41,876
Speaker 1: it's pleasure to be here. Deep Background is brought to

598
00:35:41,956 --> 00:35:45,036
Speaker 1: you by Pushkin Industries. Our producer is Lydia Gene Coott,

599
00:35:45,116 --> 00:35:49,116
Speaker 1: with engineering by Jason Gambrell and Jason Rostkowski. Our showrunner

600
00:35:49,156 --> 00:35:51,956
Speaker 1: is Sophie mckibbon. Our theme music is composed by Luis

601
00:35:52,036 --> 00:35:56,316
Speaker 1: Gera special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg,

602
00:35:56,356 --> 00:35:59,156
Speaker 1: and Mia Lobel. I'm Noah Feldman. You can follow me

603
00:35:59,156 --> 00:36:02,756
Speaker 1: on Twitter at Noah R. Feldman. This is deep background