WEBVTT - Roe v Wade Overturned 0:00:15.356 --> 0:00:23.276 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:23.356 --> 0:00:26.316 where we explored the stories behind the stories in the news. 0:00:26.756 --> 0:00:32.756 I'm Noah Feldman. Welcome to this week's episode. We're going 0:00:32.836 --> 0:00:36.676 to talk about abortion rights, one of the most contentious 0:00:36.836 --> 0:00:42.476 and difficult topics in American public life. Since Justice Brett 0:00:42.516 --> 0:00:45.436 Kavanaugh was confirmed to the Supreme Court, we've witnessed a 0:00:45.556 --> 0:00:50.876 radically new trend in states passing anti abortion laws. Time 0:00:51.076 --> 0:00:54.596 was that states wanted to urge the Supreme Court to 0:00:54.676 --> 0:00:57.596 chip away at the abortion right. To do that, they 0:00:57.636 --> 0:01:01.556 passed laws that didn't outlaw abortion altogether, but rather it 0:01:01.596 --> 0:01:04.636 made it harder to get access to an abortion, like 0:01:04.716 --> 0:01:07.276 the law passed a couple of years ago by Texas 0:01:07.596 --> 0:01:10.436 ultimately struck down by the Supreme Court, which raised the 0:01:10.476 --> 0:01:13.916 restrictions and limitations on abortion clinics and doctors to try 0:01:13.916 --> 0:01:15.996 to make it harder for women to get an abortion. 0:01:16.636 --> 0:01:19.756 The theory of those laws was that the best strategy 0:01:19.956 --> 0:01:22.636 for the pro life movement was to get the Supreme 0:01:22.636 --> 0:01:25.796 Court to say, we're not overturning Rovuwade, We're going to 0:01:25.916 --> 0:01:28.116 chip away at the abortion right until there's not much 0:01:28.236 --> 0:01:31.396 left of it at all. Since Kavanaugh was confirmed, the 0:01:31.476 --> 0:01:34.476 strategy is one hundred and eighty degrees the other way, 0:01:34.676 --> 0:01:38.076 States like Alabama most recently have passed laws that just 0:01:38.236 --> 0:01:42.356 say no abortion at all, typically in the first handful 0:01:42.356 --> 0:01:46.036 of weeks of life, typically with no exceptions for rape 0:01:46.316 --> 0:01:49.996 or incest. I call these Kavanaugh laws because they're aimed 0:01:50.036 --> 0:01:52.556 at the idea that the addition of Justice Kavanaugh to 0:01:52.636 --> 0:01:57.196 the Court will convince him and also Chief Justice John Roberts, 0:01:57.236 --> 0:02:01.636 just to drop an opinion that overturns Rovuwade in one 0:02:01.636 --> 0:02:06.716 fell swoop. If that's going to happen, then we need 0:02:06.756 --> 0:02:10.716 to start thinking about strategy to deal with it. To 0:02:10.836 --> 0:02:15.436 discuss strategy, history and how we got here, were joined 0:02:15.476 --> 0:02:20.316 today by Katherine Colbert. Catherine is a perfect person to 0:02:20.356 --> 0:02:24.476 discuss these issues with us. Catherine actually argued in the 0:02:24.556 --> 0:02:28.836 Supreme Court in nineteen ninety two successfully the case of 0:02:28.916 --> 0:02:32.756 Planned Parenthood v. Casey, right at the moment when people 0:02:32.756 --> 0:02:35.516 thought that rov Wade was allowed to be overturned the 0:02:35.716 --> 0:02:39.636 last time. Since then, Catherine has been Director of the 0:02:39.636 --> 0:02:43.436 Athena Center for Leadership Studies and Professor of Leadership Studies 0:02:43.476 --> 0:02:47.396 at Barnard College, job from which she just recently stepped down, 0:02:48.156 --> 0:02:51.916 and she's here to discuss with us where things are going. 0:02:52.516 --> 0:02:55.236 And as you'll hear, she has lots of things to 0:02:55.236 --> 0:02:59.876 say that go clear against the conventional wisdom. I imagine 0:02:59.876 --> 0:03:02.236 that Catherine was going to talk to us about the 0:03:02.276 --> 0:03:04.996 strategies that she used to convince the Supreme Court to 0:03:05.036 --> 0:03:09.036 retain the abortion right. Nope, what she's got to say 0:03:09.316 --> 0:03:13.116 is a lot more interesting and a lot more radical. Catherine, 0:03:13.116 --> 0:03:15.996 Thank you so much for joining us. Happy to be here, Catherine. 0:03:16.036 --> 0:03:20.636 I just want to begin by asking about the last 0:03:20.716 --> 0:03:25.316 round in which we had to face challenges to the 0:03:25.396 --> 0:03:27.876 abortion right, the round in which you were working at 0:03:27.876 --> 0:03:31.076 the ACLU and ended up arguing the Planet Parenthood against 0:03:31.156 --> 0:03:36.396 Casey Case. What strategy were the opponents of abortion rights 0:03:36.996 --> 0:03:41.676 using then to try to go after the right to choose? Well, 0:03:41.676 --> 0:03:45.196 the circumstances were very analogous. My case was decided by 0:03:45.196 --> 0:03:48.436 the Court of Appeals in November of nineteen ninety one, 0:03:48.756 --> 0:03:51.956 and just as Thomas had just been confirmed to the 0:03:51.996 --> 0:03:55.476 Supreme Court, it followed the very contentious Anita Hill hearings. 0:03:55.596 --> 0:03:59.476 So he too, like Kavanaugh, had been accused of sexual harassment. 0:03:59.876 --> 0:04:02.956 There was a huge outcry in the country about the 0:04:02.996 --> 0:04:06.556 conservative bent of the court, at least by those who 0:04:06.916 --> 0:04:10.156 favored the right to choose abortion. You know, there were 0:04:10.236 --> 0:04:14.196 upcoming presidential elections in that case, the Clinton election in 0:04:14.276 --> 0:04:19.236 nineteen ninety two, so circumstances were very similar, and everyone believed, 0:04:19.396 --> 0:04:23.036 including myself, that with the appointment of Justice Thomas, there 0:04:23.036 --> 0:04:25.916 were five votes on the court to overturn Row, and 0:04:26.036 --> 0:04:30.356 our strategy was built on that assumption. We thought all 0:04:30.356 --> 0:04:33.956 along we were going to lose. In fact, in the 0:04:34.036 --> 0:04:37.836 vote following oral argument, we did lose, but you didn't 0:04:37.876 --> 0:04:39.516 know that at the time because that was a secret vote. 0:04:39.556 --> 0:04:43.116 We did not know that at the time. But the 0:04:43.156 --> 0:04:46.956 circumstances were very similar is today, although I have to 0:04:46.996 --> 0:04:51.676 say that I don't think the option of winning this 0:04:51.716 --> 0:04:55.156 time around is as likely as the small chance there 0:04:55.276 --> 0:04:58.196 was for us, because the new justices to the court 0:04:58.636 --> 0:05:02.596 are more conservative than Justice Kennedy, and I don't see 0:05:02.636 --> 0:05:06.596 anything in the history of Justice Roberts that would lead 0:05:06.636 --> 0:05:08.716 me to believe that he would switch his vote. So 0:05:08.716 --> 0:05:10.396 we'll talk, we'll talk more about that. I mean, it 0:05:10.436 --> 0:05:13.516 is worth noting just in passing that one of those justices, 0:05:13.796 --> 0:05:16.036 Justice Kavanaught, one of the new justices. It's actually also 0:05:16.036 --> 0:05:19.516 true indirectly of Justice Coursa actually worked for Kennedy. They 0:05:19.516 --> 0:05:21.796 were law clerks for Justice Kennedy, even though I agree 0:05:21.796 --> 0:05:24.556 they're seen as more conservative. But what's fascinating to me, 0:05:24.676 --> 0:05:27.116 Catherinist to hear you say that you went to court 0:05:27.596 --> 0:05:32.076 in planned parent against casey expecting actually to lose it. 0:05:32.396 --> 0:05:34.596 What's it like to go into oregue a case in 0:05:34.636 --> 0:05:37.196 the highest court of the land, with the expectation that 0:05:37.276 --> 0:05:40.996 you're going down. Well, our strategy was built on if 0:05:41.036 --> 0:05:43.916 we lose, what's next, And in that case, it was 0:05:43.996 --> 0:05:47.156 making sure that the public, the court of public opinion, 0:05:47.516 --> 0:05:50.436 understood what was at stake. Often these things are veiled 0:05:50.476 --> 0:05:54.956 in legal ease and things that most people don't understand. Frankly, 0:05:54.996 --> 0:05:58.156 they don't even understand what happens when a federal constitutional 0:05:58.196 --> 0:06:01.156 right is withdrawn, because it doesn't happen that often. So 0:06:01.276 --> 0:06:03.516 the first thing we set out to do is to 0:06:03.556 --> 0:06:06.636 make sure people understood what was at stake, and that 0:06:06.716 --> 0:06:08.676 was the loss of their liberty and the loss of 0:06:08.876 --> 0:06:12.116 us and legal abortion. And the second thing was to 0:06:12.156 --> 0:06:16.756 set it up politically. At that time, we did control 0:06:17.436 --> 0:06:20.276 Congress and thought we could pass a bill that would 0:06:20.276 --> 0:06:25.036 protect women on a national level if the outcry was sufficient. 0:06:25.156 --> 0:06:29.396 Today that's less possible, and I'm sure we will get 0:06:29.396 --> 0:06:32.156 into what strategies might work now, but I think what 0:06:32.196 --> 0:06:34.876 we were really doing was to try to make sure 0:06:34.916 --> 0:06:36.956 people understood what was going on. So one of the 0:06:36.956 --> 0:06:39.676 reasons that you had to engage in that strategy is 0:06:39.716 --> 0:06:43.516 that the law that the state of Pennsylvania had passed 0:06:44.396 --> 0:06:50.516 actually didn't outright ban abortion under all circumstances. Right. It 0:06:50.596 --> 0:06:55.716 required an informed consent formed be signed twenty four hours 0:06:55.716 --> 0:07:00.156 before the procedure that would provide information about the fetus. 0:07:00.516 --> 0:07:03.836 There was a parental consent requirement for minors. There was 0:07:03.876 --> 0:07:06.596 a requirement that women who were about to have an 0:07:06.596 --> 0:07:09.516 abortion and who were married and notify their husband. There 0:07:09.596 --> 0:07:12.796 was some play with the definition of a medical emergency. 0:07:13.076 --> 0:07:15.996 These were, in retrospect, compared to where we are today, 0:07:16.636 --> 0:07:21.356 pretty subtle attempts to constrain and limit the right to abortion. 0:07:21.476 --> 0:07:24.556 So you had to explain to people that even those 0:07:24.596 --> 0:07:27.596 things would amount seriously chipping away at the right to 0:07:27.676 --> 0:07:32.236 choose right. And let me make sure that your listeners understand, 0:07:32.276 --> 0:07:35.196 from my point of view, it makes very little difference 0:07:35.196 --> 0:07:38.316 whether it's is a statutory provision like those in Pennsylvania 0:07:38.596 --> 0:07:42.556 or a total ban like that past in Alabama. In 0:07:42.596 --> 0:07:46.316 both instances, the Supreme Court has the ability to change, 0:07:46.556 --> 0:07:49.356 well lawyers call the standard of review, what kinds of 0:07:49.396 --> 0:07:51.956 deference are they going to give to the states to 0:07:52.116 --> 0:07:56.756 pass restrictive laws. Either type of law can result in 0:07:56.796 --> 0:08:00.956 the reversal of Row. So this notion that the frontal 0:08:00.996 --> 0:08:04.956 attack by Alabama kind of laws are worse is really 0:08:04.956 --> 0:08:08.836 a misnomer. It's not true. The Court can do exactly 0:08:08.876 --> 0:08:11.716 what it wants to do that undermines the ability of 0:08:11.716 --> 0:08:15.756 women to get safe medical procedures. Whatever statute is before 0:08:15.756 --> 0:08:19.476 the court, and there are currently four cases already pending 0:08:19.956 --> 0:08:23.116 that would give them that opportunity. And let me add 0:08:23.156 --> 0:08:25.876 just one more thing, which is, at the time of Casey, 0:08:26.236 --> 0:08:31.156 there were three states that had totally banned abortion, actually 0:08:31.236 --> 0:08:34.636 more extreme than the Alabama law because they started from conception, 0:08:34.756 --> 0:08:37.996 not from the six weeks. They had no exceptions for 0:08:38.076 --> 0:08:41.796 rape and incest. So those were pending in the courts 0:08:41.796 --> 0:08:43.876 of appeals at the time we went up in cases. 0:08:43.876 --> 0:08:46.236 So can we dive a little deeper into that, because 0:08:47.076 --> 0:08:52.116 I think from the standpoint of a pro choice advocate, 0:08:52.316 --> 0:08:54.956 I totally hear what you're saying. I understand that you 0:08:54.996 --> 0:08:57.236 know there might be no difference in some sense between 0:08:57.676 --> 0:08:59.556 a case that comes to the Supreme Court and gives 0:08:59.596 --> 0:09:02.716 the Court the chance to overturn Row when it's mildly 0:09:03.236 --> 0:09:06.036 limiting or had a medium weight limitation on the right 0:09:06.076 --> 0:09:08.956 to choose, and an absolute band. But from the standpoint 0:09:09.196 --> 0:09:15.076 of conservatives who don't want to have a headline that 0:09:15.356 --> 0:09:21.956 says Court overturns Rov. Wade, but also want to limit 0:09:22.036 --> 0:09:26.036 the right to abortion, mightn't there be a huge difference 0:09:26.116 --> 0:09:28.196 between those kinds of laws. And let me say what 0:09:28.236 --> 0:09:31.076 I mean by that. So imagine that you are Chief 0:09:31.116 --> 0:09:34.036 Justice John Roberts. You know, we don't know whether you 0:09:34.076 --> 0:09:38.916 would vote directly to uphold a law that ban abortion 0:09:39.356 --> 0:09:42.236 from conception or from six weeks. But in general, we 0:09:42.316 --> 0:09:45.236 do know that Chief Justice Roberts prefers, in lots of 0:09:45.276 --> 0:09:49.476 areas of jurisprudence to chip away at precedence, to weaken 0:09:49.636 --> 0:09:54.996 old precedents, make them increasingly irrelevant, rather than to overturn 0:09:55.076 --> 0:09:59.196 them in one fell swoop. So if we extrapolate from 0:09:59.236 --> 0:10:02.356 Roberts's feelings with respect to lots of other liberal precedents 0:10:02.356 --> 0:10:04.556 where he likes to chip away strategy, you know, death 0:10:04.596 --> 0:10:09.556 by a thousand cuts. Then presumably he would prefer to 0:10:10.476 --> 0:10:17.516 gradually uphold limited restrictions on the abortion right, to weaken 0:10:17.996 --> 0:10:22.196 the abortion right over time, rather than issuing an opinion 0:10:22.596 --> 0:10:26.036 that in one go generates a headline that says court 0:10:26.116 --> 0:10:30.316 overturns Roe v. Wade. So do you disagree with that, Catherine? 0:10:30.316 --> 0:10:33.516 That from his standpoint, imagining that that's his goal, that 0:10:33.556 --> 0:10:35.396 there might be a difference between the different kinds of 0:10:35.436 --> 0:10:37.756 laws that might come before the court, I don't, Actually 0:10:37.756 --> 0:10:41.996 I don't. The issue is always a political calculus, that is, 0:10:42.076 --> 0:10:45.036 are you going to whip up the opposition? The real 0:10:45.076 --> 0:10:49.636 problem here for conservatives is that Americans believe that abortion 0:10:49.636 --> 0:10:54.276 ought to be legal in most circumstances. Some want more restrictions, 0:10:54.756 --> 0:10:58.316 but not very many more restrictions, but only about twenty 0:10:58.396 --> 0:11:01.836 some percent think that abortion ought to be outlawed. And 0:11:01.916 --> 0:11:05.116 so when you are talking about taking away well, at 0:11:05.156 --> 0:11:08.636 one point was a fundamental constitutional right for the first 0:11:08.636 --> 0:11:13.036 time in history, it is hard to give much solace 0:11:13.436 --> 0:11:15.356 to the guy who just wants to say, let me 0:11:15.396 --> 0:11:19.276 cover up what I'm doing. In order to appease my base, 0:11:19.356 --> 0:11:21.476 but at the same time not cause too much trouble. 0:11:21.836 --> 0:11:25.436 The point is, Americans disagree with the position the Court's 0:11:25.476 --> 0:11:29.396 going to take, and they have. More importantly, it is 0:11:29.436 --> 0:11:33.876 a violation of fundamental principles of starry decisis, which says 0:11:33.916 --> 0:11:37.996 that when Americans rely upon precedent, when precedent is reaffirmed 0:11:38.036 --> 0:11:42.036 over and over and over again, you ought to keep 0:11:42.596 --> 0:11:45.836 that precedent, even if you disagree with it or would 0:11:45.876 --> 0:11:50.716 have decided differently the first time. So, Catherine, as an advocate, though, 0:11:51.116 --> 0:11:53.756 wouldn't your goal if you were arguing one of these 0:11:53.756 --> 0:11:56.996 cases coming before the Supreme Court now, wouldn't your goal 0:11:57.196 --> 0:12:01.236 be in a perfect world to try to appeal John 0:12:01.356 --> 0:12:04.236 Roberts and maybe even Brett kavanaughf John Roberts did it 0:12:04.756 --> 0:12:08.676 away from the position of saying we're going to overturn 0:12:09.556 --> 0:12:12.836 and towards the direction of something more in the middle. 0:12:12.996 --> 0:12:15.916 Or do you think that that's not what pro choice 0:12:16.036 --> 0:12:18.596 advocates should be trying to do strategically, that they should 0:12:18.596 --> 0:12:21.476 just be laying it right out there for the Chief 0:12:21.476 --> 0:12:23.516 Justice and saying, go ahead and do it and then 0:12:23.556 --> 0:12:26.916 watch the backlash. Well, I think that comes down, and 0:12:26.956 --> 0:12:29.236 I'm not arguing these cases, and obviously we don't know 0:12:29.236 --> 0:12:31.916 which one is going up forward. In our case, we 0:12:32.396 --> 0:12:36.796 made the political calculation that winning that fifth vote was 0:12:36.836 --> 0:12:40.116 impossible and went forward with the idea of trying to 0:12:40.156 --> 0:12:45.916 restore the rights legislatively. Today, I still believe that Justice 0:12:45.996 --> 0:12:50.556 Roberts is not likely to support even the Casey formulation, 0:12:51.236 --> 0:12:54.636 and that for many women in this country, liberalizing or 0:12:54.676 --> 0:12:59.116 giving states greater latitude to restrict abortion, for example, allowing 0:12:59.476 --> 0:13:02.236 regulations like what was before the Court in the Texas 0:13:02.276 --> 0:13:06.036 case a couple of years ago, effectively outlaws abortion for 0:13:06.116 --> 0:13:09.796 many many women across the nation, makes it possible to 0:13:09.836 --> 0:13:13.236 obtain without having to travel to a state that has 0:13:13.716 --> 0:13:16.676 greater protections. You know, everybody wants to approach us from 0:13:16.676 --> 0:13:20.316 the point of view of the justices. I want to 0:13:20.316 --> 0:13:22.276 approach it from the point of view of the women 0:13:22.316 --> 0:13:26.716 who are affected by these laws. For them, whether the 0:13:26.756 --> 0:13:31.156 Court expands Casey and permits greater regulation or whether there's 0:13:31.196 --> 0:13:34.796 an outright ban, there's very little difference. And if you're young, 0:13:34.956 --> 0:13:37.636 and if you're poor, and if you have no access 0:13:37.756 --> 0:13:41.796 to transportation to different states, or if you're living in 0:13:41.836 --> 0:13:45.756 an abusive relationship that really matters much. That means we 0:13:45.876 --> 0:13:48.796 need to start thinking about other ways to protect women's liberties. 0:13:49.076 --> 0:13:51.116 I hear you loud and clear. I'm glad you brought 0:13:51.236 --> 0:13:53.116 up the case from a couple of years ago, a 0:13:53.156 --> 0:13:57.516 whole Women's health against hellerstat which, just to remind listeners, 0:13:57.716 --> 0:14:01.916 came out of Texas and involved a state law that 0:14:02.116 --> 0:14:06.516 was designed effectively to make it much much harder for 0:14:06.556 --> 0:14:11.036 abortion providers actually to function in state. The idea was 0:14:11.076 --> 0:14:15.836 to impose restrictions and requirements on clinics and physicians who 0:14:15.836 --> 0:14:20.676 performed abortions that would be effectively the same as putting 0:14:20.716 --> 0:14:22.916 them out of business in order to make it much 0:14:22.916 --> 0:14:29.036 harder for abortion to be obtained while simultaneously winning over 0:14:29.236 --> 0:14:33.596 the middle of the court. And in that instance, Justice Kennedy, 0:14:33.636 --> 0:14:36.636 who was still on the Court at that time, wasn't 0:14:36.636 --> 0:14:39.236 buying it, and he said that those laws violated the 0:14:39.396 --> 0:14:42.716 standard that he set up in plan pared against Casey, 0:14:42.756 --> 0:14:44.796 the undue burden standard. He was willing to join an 0:14:44.836 --> 0:14:48.636 opinion that said that they impose an undue burden on women. 0:14:48.876 --> 0:14:51.516 Chief Justice Roberts, on the other hand, was in the descent, 0:14:52.156 --> 0:14:55.036 and he thought without saying explicitly that he thought that 0:14:55.636 --> 0:14:58.316 Casey should be overturned, that Casey could be applied to 0:14:58.356 --> 0:15:01.836 allow these restrictions. That's where I and I think others 0:15:01.836 --> 0:15:06.236 are getting the idea that Roberts's preferred strategy on the 0:15:06.236 --> 0:15:09.276 other side would be a slow chipping away at the 0:15:09.316 --> 0:15:13.236 abortion right rather than a one fell swoop overturning. But 0:15:13.316 --> 0:15:16.596 I hear you saying, Catherine that you're not that interested 0:15:16.836 --> 0:15:20.636 in strategizing for winning in the Supreme Court. Your view 0:15:20.716 --> 0:15:23.436 is abortion rights are going to lose in the Supreme 0:15:23.476 --> 0:15:25.316 Court and we have to think about what to do 0:15:25.476 --> 0:15:27.676 after that happens. I am I getting that clear. I 0:15:27.676 --> 0:15:30.236 want to make sure I get it clear. That's that's clear. 0:15:30.356 --> 0:15:34.596 That is whether you're chipping away or you're totally overruling 0:15:34.676 --> 0:15:39.556 role the effect for women's access to abortion, and let 0:15:39.556 --> 0:15:42.036 me just say also contraception, because that's next down the 0:15:42.076 --> 0:15:47.076 line is going to be seriously in jeopardy. And the 0:15:47.116 --> 0:15:49.516 only thing in my mind that matters is how are 0:15:49.596 --> 0:15:54.596 women actually affected who need valid and safe medical procedures. 0:15:54.876 --> 0:15:56.796 And that's what we're talking about, and that's what we 0:15:56.836 --> 0:15:58.596 need to focus on. So I want to I want 0:15:58.596 --> 0:16:00.476 to turn to that in just a second. But I 0:16:00.476 --> 0:16:02.796 just want to say first, to be completely honest, my 0:16:02.836 --> 0:16:06.476 mind is kind of blown by your answer, because here 0:16:06.556 --> 0:16:09.956 you argued the case in which theream Court you know, 0:16:09.996 --> 0:16:12.356 famously took a middle ground. They basically said, you know, 0:16:12.356 --> 0:16:14.316 we're not that crazy about Roe v. Wade, but it's 0:16:14.316 --> 0:16:16.996 been in place at the time for roughly twenty years. 0:16:17.236 --> 0:16:19.236 We're going to uphold it on the principle of sterry 0:16:19.276 --> 0:16:22.076 decisis the idea that we don't want to overturn a 0:16:22.116 --> 0:16:26.116 well established precedent, and Justice Kennedy famously said that liberty 0:16:26.156 --> 0:16:29.356 finds no refuge and a jurisprudence of doubt, by which 0:16:29.396 --> 0:16:30.836 is a little hard to know what he meant by that, 0:16:30.836 --> 0:16:32.876 but it sounds like what he means is we can't 0:16:32.916 --> 0:16:36.196 be constantly taking away rights that have traditionally been granted. 0:16:36.236 --> 0:16:39.876 So I imagined, wrongly that your view would be that 0:16:40.556 --> 0:16:44.156 it would be good to win some middle ground holding pattern, 0:16:44.196 --> 0:16:46.156 and maybe that would buy us, you know, enough time 0:16:46.196 --> 0:16:49.436 for the public to be able to block laws like 0:16:49.436 --> 0:16:52.036 those are being passed in Alabama and elsewhere. But I'm hearing, 0:16:52.196 --> 0:16:53.996 I'm hearing the opposite from you, and I'm also hearing 0:16:54.036 --> 0:16:55.956 the opposite of how you were thinking when you went 0:16:55.996 --> 0:16:58.916 into when you went into Casey, and that's that's great. 0:16:58.916 --> 0:17:01.316 I'm learning a huge amount from this conversation, So thank 0:17:01.316 --> 0:17:06.116 you to tell me what you think advocates for abortion 0:17:06.196 --> 0:17:08.956 rights then should be doing. What strategy would you like 0:17:09.796 --> 0:17:13.716 to see followed, both in the court in cases where 0:17:13.716 --> 0:17:16.396 in your review a pro choice people are going to lose, 0:17:16.916 --> 0:17:21.116 and also more broadly, in the society. So first, in 0:17:21.196 --> 0:17:26.676 the court, clearly, whatever cases are headed there, it sure 0:17:26.676 --> 0:17:29.236 would be nice to delay them as long as possible. 0:17:29.756 --> 0:17:31.516 Again on the theory, if you're going to lose, let's 0:17:31.516 --> 0:17:35.116 lose later. But second, I think in the courts, we 0:17:35.156 --> 0:17:39.076 want to look to state courts, particularly state supreme courts, 0:17:39.476 --> 0:17:45.596 to establish independent state constitutional rights to abortion and reproductive freedom. 0:17:46.116 --> 0:17:48.436 A number of states have done that in the context 0:17:48.436 --> 0:17:51.796 of medicaid funding for abortion. For example, the Kansas Supreme 0:17:51.796 --> 0:17:54.436 Court just a couple of weeks ago issued an opinion 0:17:54.636 --> 0:17:58.196 establishing an independent right, and the value of that is 0:17:58.236 --> 0:18:03.076 it permits state courts to then strike down as unconstitutional 0:18:03.196 --> 0:18:06.836 under the standards that are independent to the states, any 0:18:06.876 --> 0:18:10.156 restrictive laws that are passed at the state level. So 0:18:11.436 --> 0:18:16.636 I hear you, and it makes perfect sense. Isn't that hopeless? Though, 0:18:16.836 --> 0:18:20.436 in the very states that are passing the most restrictive 0:18:20.876 --> 0:18:24.356 anti abortion laws, the Alabama's, the Georgia's, the Iowas I mean, 0:18:24.876 --> 0:18:27.596 isn't it precisely those states where state supreme courts, and 0:18:27.636 --> 0:18:29.356 in some cases I should add, those state supreme courts 0:18:29.356 --> 0:18:31.796 are elected. The Alabama state Supreme Court is actually elected. 0:18:31.876 --> 0:18:34.236 Let me talk about strategies that seem unlikely to work. 0:18:34.316 --> 0:18:37.076 Isn't it the case that almost all states where a 0:18:37.156 --> 0:18:40.196 legislative majority would enact a ban on abortion are also 0:18:40.316 --> 0:18:43.396 the same states where the state supreme court would say 0:18:43.436 --> 0:18:47.036 it's constitutional to do so. Yeah, some, but not all. So, 0:18:47.156 --> 0:18:52.116 for example, Pennsylvania has this democratically controlled state Supreme Court. 0:18:52.196 --> 0:18:54.356 I don't know where they're going to come down on abortion, 0:18:54.436 --> 0:18:58.196 but their legislature is very red and they just passed 0:18:58.196 --> 0:19:01.196 a ban on abortions if you needed it in cases 0:19:01.236 --> 0:19:04.356 of down syndrome. So the answer is yes and no. 0:19:05.036 --> 0:19:09.676 States very Alaska, for example, very libertarian state. Their supreme 0:19:09.716 --> 0:19:13.436 court reflects that libertarian notion. Look, and I'm talking about 0:19:13.436 --> 0:19:15.436 a ten year strategy here. We're talking about how do 0:19:15.516 --> 0:19:19.316 you preserve rights in the short term in the long term, 0:19:19.316 --> 0:19:24.396 and obviously state constitutions are a longer term strategy. I've 0:19:24.396 --> 0:19:28.836 always believed you need to establish a parallel and independent 0:19:28.956 --> 0:19:31.316 right at the state level. So it might work in 0:19:31.356 --> 0:19:34.276 purple states, in other words, where the legislature is read 0:19:34.356 --> 0:19:37.556 but the court is bluish well, and also in states 0:19:37.596 --> 0:19:40.556 where the Supreme Court is elected and the majority of 0:19:40.596 --> 0:19:44.636 the citizens believe in the right to choose. Just because 0:19:44.636 --> 0:19:48.116 the legislature is read doesn't mean the citizens rate is. 0:19:48.436 --> 0:19:50.436 And it's a lot easier to elect two or three 0:19:50.516 --> 0:19:54.716 or four justices to a Supreme Court than an entire legislature, 0:19:55.076 --> 0:19:57.916 So you know, there's plenty of opportunities there. So go 0:19:57.956 --> 0:20:00.236 on then to talk about the other strategies that you 0:20:00.596 --> 0:20:03.836 are alluding to earlier. So on the legislative level, obviously, 0:20:03.876 --> 0:20:07.956 the preferred route is to have a federal constitutional right 0:20:08.116 --> 0:20:11.156 or a federal l slate of right, so that women 0:20:11.276 --> 0:20:14.716 have the same rights in every state. You know, your 0:20:14.756 --> 0:20:19.036 ability to make reproductive decisions shouldn't depend on where you live. 0:20:19.716 --> 0:20:21.676 To do that, you would need to take back control 0:20:21.716 --> 0:20:24.516 of the Senate with a pro choice majority and pro 0:20:24.596 --> 0:20:27.516 choice leadership, So that would probably mean turning it blue, 0:20:27.876 --> 0:20:31.076 and you would need a pro choice president who could 0:20:31.876 --> 0:20:36.316 sign it into law. Again, a possibility in twenty twenty, 0:20:36.436 --> 0:20:39.316 less likely than it has been in some years, but 0:20:39.556 --> 0:20:43.516 certainly a possibility in twenty twenty. But the other route, 0:20:43.556 --> 0:20:46.956 which I am firmly of the view that we need 0:20:46.996 --> 0:20:53.516 to pursue, is that state legislatures are often controlled by 0:20:53.636 --> 0:20:56.876 very few people. A few flips won't make a difference 0:20:56.876 --> 0:21:00.036 in terms of control. A pro choice governor who's willing 0:21:00.076 --> 0:21:03.996 to veto a bad bill is really key. So we 0:21:04.036 --> 0:21:06.996 need to look politically at the states. I would start 0:21:07.076 --> 0:21:11.396 with electing pro choice governors. My preferences women governors who 0:21:11.516 --> 0:21:15.036 understand these issues, but certainly any governor who's pro choice 0:21:15.476 --> 0:21:18.436 is phenomenal. And then to take control of at least 0:21:18.436 --> 0:21:22.476 one chamber of a state legislature in order to block 0:21:23.156 --> 0:21:26.556 bad laws. You know, in the days after Webster was 0:21:26.596 --> 0:21:30.796 decided and before Casey, I was the aclused person who 0:21:30.876 --> 0:21:33.916 went out to the states and developed the expertise and 0:21:34.116 --> 0:21:37.676 killing bad bills. And there's all kinds of ways you 0:21:37.716 --> 0:21:39.716 can do that. I mean, I was in forty four 0:21:39.796 --> 0:21:42.796 states in those years, in a two year period where 0:21:42.796 --> 0:21:46.836 there were over eight hundred restrictions introduced, and there's lots 0:21:46.836 --> 0:21:50.036 and lots of ways to kill bad bills, but the 0:21:50.116 --> 0:21:53.436 easiest and best is to either have leadership of one 0:21:53.516 --> 0:21:56.636 chamber or a governor who can veto And frankly, we 0:21:56.636 --> 0:22:01.236 ought to be focusing it on it strategically geographically because 0:22:01.276 --> 0:22:05.636 now most blue states are on the coasts, and we 0:22:05.756 --> 0:22:07.636 got to give women in the middle of the country 0:22:07.676 --> 0:22:11.356 some options or at home. May I try to dig 0:22:11.396 --> 0:22:14.636 a little deeper on your proposal for a federal law, 0:22:15.236 --> 0:22:17.956 obviously requiring a pro choice majority in both houses and 0:22:17.996 --> 0:22:22.196 a pro choice president that would protect abortion rights for women. 0:22:22.236 --> 0:22:25.116 I have sort of two questions about that. The first is, 0:22:26.076 --> 0:22:29.756 do you think that the Democrats should have passed such 0:22:29.756 --> 0:22:33.276 a law during those handful of brief moments over the 0:22:33.316 --> 0:22:35.556 last fifty years where they had that There was a 0:22:35.596 --> 0:22:38.636 brief moment in the content administration where that existed and 0:22:38.956 --> 0:22:42.476 another brief moment in the Obama administration where that existed. 0:22:42.796 --> 0:22:46.276 Did the Democrats miss an opportunity thinking well, the Constitution 0:22:46.316 --> 0:22:48.676 now protect abortion rights, so we don't need a federal law. 0:22:48.916 --> 0:22:51.996 Should they have tried to pass a law? Then? No, 0:22:52.476 --> 0:22:55.156 because it would have undercut the constitutional right which we 0:22:55.276 --> 0:22:59.116 believed to exist. So it's not a story of missopportunity. 0:22:59.276 --> 0:23:01.916 So let me ask a follow up question. Then, imagine 0:23:01.916 --> 0:23:05.796 the Congress did pass such a law. And I know, 0:23:05.836 --> 0:23:08.676 I don't want to get too into the constitutional law weeds, 0:23:08.676 --> 0:23:11.716 since you argue constitutional cases and I teach constitutional law 0:23:11.756 --> 0:23:13.276 for a living, and it would be easy for us 0:23:13.276 --> 0:23:16.076 to go to into the weeds. But I'm wondering, wouldn't 0:23:16.076 --> 0:23:20.116 such a bill be vulnerable to the idea that the 0:23:20.156 --> 0:23:22.596 Supreme Court could strike it down. A conservative court could 0:23:22.596 --> 0:23:25.596 strike it down by saying it was an overreach and 0:23:25.636 --> 0:23:28.876 that the federal government didn't have the capacity to block 0:23:28.996 --> 0:23:33.956 the states from passing laws that restrict women's right to abortion. 0:23:34.676 --> 0:23:37.036 Even a conservative court, I think would be going very 0:23:37.036 --> 0:23:39.996 far to do that. I just don't see them doing that. 0:23:40.036 --> 0:23:42.476 I mean, they'd be going pretty far to strike down 0:23:43.196 --> 0:23:46.156 Roe v. Wade, Right, I mean, we're our scenario is 0:23:46.156 --> 0:23:47.996 a precisely scenario where they've gone all the way to, 0:23:48.476 --> 0:23:51.156 as you said, eliminating a constitutional right. It's one of 0:23:51.156 --> 0:23:53.196 the first times the Court would ever have done that. Right, 0:23:53.676 --> 0:23:56.956 But at the same time, that is their sweet spot, 0:23:57.036 --> 0:24:00.596