Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explored the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. Welcome to this week's episode. We're going
Speaker 1: to talk about abortion rights, one of the most contentious
Speaker 1: and difficult topics in American public life. Since Justice Brett
Speaker 1: Kavanaugh was confirmed to the Supreme Court, we've witnessed a
Speaker 1: radically new trend in states passing anti abortion laws. Time
Speaker 1: was that states wanted to urge the Supreme Court to
Speaker 1: chip away at the abortion right. To do that, they
Speaker 1: passed laws that didn't outlaw abortion altogether, but rather it
Speaker 1: made it harder to get access to an abortion, like
Speaker 1: the law passed a couple of years ago by Texas
Speaker 1: ultimately struck down by the Supreme Court, which raised the
Speaker 1: restrictions and limitations on abortion clinics and doctors to try
Speaker 1: to make it harder for women to get an abortion.
Speaker 1: The theory of those laws was that the best strategy
Speaker 1: for the pro life movement was to get the Supreme
Speaker 1: Court to say, we're not overturning Rovuwade, We're going to
Speaker 1: chip away at the abortion right until there's not much
Speaker 1: left of it at all. Since Kavanaugh was confirmed, the
Speaker 1: strategy is one hundred and eighty degrees the other way,
Speaker 1: States like Alabama most recently have passed laws that just
Speaker 1: say no abortion at all, typically in the first handful
Speaker 1: of weeks of life, typically with no exceptions for rape
Speaker 1: or incest. I call these Kavanaugh laws because they're aimed
Speaker 1: at the idea that the addition of Justice Kavanaugh to
Speaker 1: the Court will convince him and also Chief Justice John Roberts,
Speaker 1: just to drop an opinion that overturns Rovuwade in one
Speaker 1: fell swoop. If that's going to happen, then we need
Speaker 1: to start thinking about strategy to deal with it. To
Speaker 1: discuss strategy, history and how we got here, were joined
Speaker 1: today by Katherine Colbert. Catherine is a perfect person to
Speaker 1: discuss these issues with us. Catherine actually argued in the
Speaker 1: Supreme Court in nineteen ninety two successfully the case of
Speaker 1: Planned Parenthood v. Casey, right at the moment when people
Speaker 1: thought that rov Wade was allowed to be overturned the
Speaker 1: last time. Since then, Catherine has been Director of the
Speaker 1: Athena Center for Leadership Studies and Professor of Leadership Studies
Speaker 1: at Barnard College, job from which she just recently stepped down,
Speaker 1: and she's here to discuss with us where things are going.
Speaker 1: And as you'll hear, she has lots of things to
Speaker 1: say that go clear against the conventional wisdom. I imagine
Speaker 1: that Catherine was going to talk to us about the
Speaker 1: strategies that she used to convince the Supreme Court to
Speaker 1: retain the abortion right. Nope, what she's got to say
Speaker 1: is a lot more interesting and a lot more radical. Catherine,
Speaker 1: Thank you so much for joining us. Happy to be here, Catherine.
Speaker 1: I just want to begin by asking about the last
Speaker 1: round in which we had to face challenges to the
Speaker 1: abortion right, the round in which you were working at
Speaker 1: the ACLU and ended up arguing the Planet Parenthood against
Speaker 1: Casey Case. What strategy were the opponents of abortion rights
Speaker 1: using then to try to go after the right to choose? Well,
Speaker 1: the circumstances were very analogous. My case was decided by
Speaker 1: the Court of Appeals in November of nineteen ninety one,
Speaker 1: and just as Thomas had just been confirmed to the
Speaker 1: Supreme Court, it followed the very contentious Anita Hill hearings.
Speaker 1: So he too, like Kavanaugh, had been accused of sexual harassment.
Speaker 1: There was a huge outcry in the country about the
Speaker 1: conservative bent of the court, at least by those who
Speaker 1: favored the right to choose abortion. You know, there were
Speaker 1: upcoming presidential elections in that case, the Clinton election in
Speaker 1: nineteen ninety two, so circumstances were very similar, and everyone believed,
Speaker 1: including myself, that with the appointment of Justice Thomas, there
Speaker 1: were five votes on the court to overturn Row, and
Speaker 1: our strategy was built on that assumption. We thought all
Speaker 1: along we were going to lose. In fact, in the
Speaker 1: vote following oral argument, we did lose, but you didn't
Speaker 1: know that at the time because that was a secret vote.
Speaker 1: We did not know that at the time. But the
Speaker 1: circumstances were very similar is today, although I have to
Speaker 1: say that I don't think the option of winning this
Speaker 1: time around is as likely as the small chance there
Speaker 1: was for us, because the new justices to the court
Speaker 1: are more conservative than Justice Kennedy, and I don't see
Speaker 1: anything in the history of Justice Roberts that would lead
Speaker 1: me to believe that he would switch his vote. So
Speaker 1: we'll talk, we'll talk more about that. I mean, it
Speaker 1: is worth noting just in passing that one of those justices,
Speaker 1: Justice Kavanaught, one of the new justices. It's actually also
Speaker 1: true indirectly of Justice Coursa actually worked for Kennedy. They
Speaker 1: were law clerks for Justice Kennedy, even though I agree
Speaker 1: they're seen as more conservative. But what's fascinating to me,
Speaker 1: Catherinist to hear you say that you went to court
Speaker 1: in planned parent against casey expecting actually to lose it.
Speaker 1: What's it like to go into oregue a case in
Speaker 1: the highest court of the land, with the expectation that
Speaker 1: you're going down. Well, our strategy was built on if
Speaker 1: we lose, what's next, And in that case, it was
Speaker 1: making sure that the public, the court of public opinion,
Speaker 1: understood what was at stake. Often these things are veiled
Speaker 1: in legal ease and things that most people don't understand. Frankly,
Speaker 1: they don't even understand what happens when a federal constitutional
Speaker 1: right is withdrawn, because it doesn't happen that often. So
Speaker 1: the first thing we set out to do is to
Speaker 1: make sure people understood what was at stake, and that
Speaker 1: was the loss of their liberty and the loss of
Speaker 1: us and legal abortion. And the second thing was to
Speaker 1: set it up politically. At that time, we did control
Speaker 1: Congress and thought we could pass a bill that would
Speaker 1: protect women on a national level if the outcry was sufficient.
Speaker 1: Today that's less possible, and I'm sure we will get
Speaker 1: into what strategies might work now, but I think what
Speaker 1: we were really doing was to try to make sure
Speaker 1: people understood what was going on. So one of the
Speaker 1: reasons that you had to engage in that strategy is
Speaker 1: that the law that the state of Pennsylvania had passed
Speaker 1: actually didn't outright ban abortion under all circumstances. Right. It
Speaker 1: required an informed consent formed be signed twenty four hours
Speaker 1: before the procedure that would provide information about the fetus.
Speaker 1: There was a parental consent requirement for minors. There was
Speaker 1: a requirement that women who were about to have an
Speaker 1: abortion and who were married and notify their husband. There
Speaker 1: was some play with the definition of a medical emergency.
Speaker 1: These were, in retrospect, compared to where we are today,
Speaker 1: pretty subtle attempts to constrain and limit the right to abortion.
Speaker 1: So you had to explain to people that even those
Speaker 1: things would amount seriously chipping away at the right to
Speaker 1: choose right. And let me make sure that your listeners understand,
Speaker 1: from my point of view, it makes very little difference
Speaker 1: whether it's is a statutory provision like those in Pennsylvania
Speaker 1: or a total ban like that past in Alabama. In
Speaker 1: both instances, the Supreme Court has the ability to change,
Speaker 1: well lawyers call the standard of review, what kinds of
Speaker 1: deference are they going to give to the states to
Speaker 1: pass restrictive laws. Either type of law can result in
Speaker 1: the reversal of Row. So this notion that the frontal
Speaker 1: attack by Alabama kind of laws are worse is really
Speaker 1: a misnomer. It's not true. The Court can do exactly
Speaker 1: what it wants to do that undermines the ability of
Speaker 1: women to get safe medical procedures. Whatever statute is before
Speaker 1: the court, and there are currently four cases already pending
Speaker 1: that would give them that opportunity. And let me add
Speaker 1: just one more thing, which is, at the time of Casey,
Speaker 1: there were three states that had totally banned abortion, actually
Speaker 1: more extreme than the Alabama law because they started from conception,
Speaker 1: not from the six weeks. They had no exceptions for
Speaker 1: rape and incest. So those were pending in the courts
Speaker 1: of appeals at the time we went up in cases.
Speaker 1: So can we dive a little deeper into that, because
Speaker 1: I think from the standpoint of a pro choice advocate,
Speaker 1: I totally hear what you're saying. I understand that you
Speaker 1: know there might be no difference in some sense between
Speaker 1: a case that comes to the Supreme Court and gives
Speaker 1: the Court the chance to overturn Row when it's mildly
Speaker 1: limiting or had a medium weight limitation on the right
Speaker 1: to choose, and an absolute band. But from the standpoint
Speaker 1: of conservatives who don't want to have a headline that
Speaker 1: says Court overturns Rov. Wade, but also want to limit
Speaker 1: the right to abortion, mightn't there be a huge difference
Speaker 1: between those kinds of laws. And let me say what
Speaker 1: I mean by that. So imagine that you are Chief
Speaker 1: Justice John Roberts. You know, we don't know whether you
Speaker 1: would vote directly to uphold a law that ban abortion
Speaker 1: from conception or from six weeks. But in general, we
Speaker 1: do know that Chief Justice Roberts prefers, in lots of
Speaker 1: areas of jurisprudence to chip away at precedence, to weaken
Speaker 1: old precedents, make them increasingly irrelevant, rather than to overturn
Speaker 1: them in one fell swoop. So if we extrapolate from
Speaker 1: Roberts's feelings with respect to lots of other liberal precedents
Speaker 1: where he likes to chip away strategy, you know, death
Speaker 1: by a thousand cuts. Then presumably he would prefer to
Speaker 1: gradually uphold limited restrictions on the abortion right, to weaken
Speaker 1: the abortion right over time, rather than issuing an opinion
Speaker 1: that in one go generates a headline that says court
Speaker 1: overturns Roe v. Wade. So do you disagree with that, Catherine?
Speaker 1: That from his standpoint, imagining that that's his goal, that
Speaker 1: there might be a difference between the different kinds of
Speaker 1: laws that might come before the court, I don't, Actually
Speaker 1: I don't. The issue is always a political calculus, that is,
Speaker 1: are you going to whip up the opposition? The real
Speaker 1: problem here for conservatives is that Americans believe that abortion
Speaker 1: ought to be legal in most circumstances. Some want more restrictions,
Speaker 1: but not very many more restrictions, but only about twenty
Speaker 1: some percent think that abortion ought to be outlawed. And
Speaker 1: so when you are talking about taking away well, at
Speaker 1: one point was a fundamental constitutional right for the first
Speaker 1: time in history, it is hard to give much solace
Speaker 1: to the guy who just wants to say, let me
Speaker 1: cover up what I'm doing. In order to appease my base,
Speaker 1: but at the same time not cause too much trouble.
Speaker 1: The point is, Americans disagree with the position the Court's
Speaker 1: going to take, and they have. More importantly, it is
Speaker 1: a violation of fundamental principles of starry decisis, which says
Speaker 1: that when Americans rely upon precedent, when precedent is reaffirmed
Speaker 1: over and over and over again, you ought to keep
Speaker 1: that precedent, even if you disagree with it or would
Speaker 1: have decided differently the first time. So, Catherine, as an advocate, though,
Speaker 1: wouldn't your goal if you were arguing one of these
Speaker 1: cases coming before the Supreme Court now, wouldn't your goal
Speaker 1: be in a perfect world to try to appeal John
Speaker 1: Roberts and maybe even Brett kavanaughf John Roberts did it
Speaker 1: away from the position of saying we're going to overturn
Speaker 1: and towards the direction of something more in the middle.
Speaker 1: Or do you think that that's not what pro choice
Speaker 1: advocates should be trying to do strategically, that they should
Speaker 1: just be laying it right out there for the Chief
Speaker 1: Justice and saying, go ahead and do it and then
Speaker 1: watch the backlash. Well, I think that comes down, and
Speaker 1: I'm not arguing these cases, and obviously we don't know
Speaker 1: which one is going up forward. In our case, we
Speaker 1: made the political calculation that winning that fifth vote was
Speaker 1: impossible and went forward with the idea of trying to
Speaker 1: restore the rights legislatively. Today, I still believe that Justice
Speaker 1: Roberts is not likely to support even the Casey formulation,
Speaker 1: and that for many women in this country, liberalizing or
Speaker 1: giving states greater latitude to restrict abortion, for example, allowing
Speaker 1: regulations like what was before the Court in the Texas
Speaker 1: case a couple of years ago, effectively outlaws abortion for
Speaker 1: many many women across the nation, makes it possible to
Speaker 1: obtain without having to travel to a state that has
Speaker 1: greater protections. You know, everybody wants to approach us from
Speaker 1: the point of view of the justices. I want to
Speaker 1: approach it from the point of view of the women
Speaker 1: who are affected by these laws. For them, whether the
Speaker 1: Court expands Casey and permits greater regulation or whether there's
Speaker 1: an outright ban, there's very little difference. And if you're young,
Speaker 1: and if you're poor, and if you have no access
Speaker 1: to transportation to different states, or if you're living in
Speaker 1: an abusive relationship that really matters much. That means we
Speaker 1: need to start thinking about other ways to protect women's liberties.
Speaker 1: I hear you loud and clear. I'm glad you brought
Speaker 1: up the case from a couple of years ago, a
Speaker 1: whole Women's health against hellerstat which, just to remind listeners,
Speaker 1: came out of Texas and involved a state law that
Speaker 1: was designed effectively to make it much much harder for
Speaker 1: abortion providers actually to function in state. The idea was
Speaker 1: to impose restrictions and requirements on clinics and physicians who
Speaker 1: performed abortions that would be effectively the same as putting
Speaker 1: them out of business in order to make it much
Speaker 1: harder for abortion to be obtained while simultaneously winning over
Speaker 1: the middle of the court. And in that instance, Justice Kennedy,
Speaker 1: who was still on the Court at that time, wasn't
Speaker 1: buying it, and he said that those laws violated the
Speaker 1: standard that he set up in plan pared against Casey,
Speaker 1: the undue burden standard. He was willing to join an
Speaker 1: opinion that said that they impose an undue burden on women.
Speaker 1: Chief Justice Roberts, on the other hand, was in the descent,
Speaker 1: and he thought without saying explicitly that he thought that
Speaker 1: Casey should be overturned, that Casey could be applied to
Speaker 1: allow these restrictions. That's where I and I think others
Speaker 1: are getting the idea that Roberts's preferred strategy on the
Speaker 1: other side would be a slow chipping away at the
Speaker 1: abortion right rather than a one fell swoop overturning. But
Speaker 1: I hear you saying, Catherine that you're not that interested
Speaker 1: in strategizing for winning in the Supreme Court. Your view
Speaker 1: is abortion rights are going to lose in the Supreme
Speaker 1: Court and we have to think about what to do
Speaker 1: after that happens. I am I getting that clear. I
Speaker 1: want to make sure I get it clear. That's that's clear.
Speaker 1: That is whether you're chipping away or you're totally overruling
Speaker 1: role the effect for women's access to abortion, and let
Speaker 1: me just say also contraception, because that's next down the
Speaker 1: line is going to be seriously in jeopardy. And the
Speaker 1: only thing in my mind that matters is how are
Speaker 1: women actually affected who need valid and safe medical procedures.
Speaker 1: And that's what we're talking about, and that's what we
Speaker 1: need to focus on. So I want to I want
Speaker 1: to turn to that in just a second. But I
Speaker 1: just want to say first, to be completely honest, my
Speaker 1: mind is kind of blown by your answer, because here
Speaker 1: you argued the case in which theream Court you know,
Speaker 1: famously took a middle ground. They basically said, you know,
Speaker 1: we're not that crazy about Roe v. Wade, but it's
Speaker 1: been in place at the time for roughly twenty years.
Speaker 1: We're going to uphold it on the principle of sterry
Speaker 1: decisis the idea that we don't want to overturn a
Speaker 1: well established precedent, and Justice Kennedy famously said that liberty
Speaker 1: finds no refuge and a jurisprudence of doubt, by which
Speaker 1: is a little hard to know what he meant by that,
Speaker 1: but it sounds like what he means is we can't
Speaker 1: be constantly taking away rights that have traditionally been granted.
Speaker 1: So I imagined, wrongly that your view would be that
Speaker 1: it would be good to win some middle ground holding pattern,
Speaker 1: and maybe that would buy us, you know, enough time
Speaker 1: for the public to be able to block laws like
Speaker 1: those are being passed in Alabama and elsewhere. But I'm hearing,
Speaker 1: I'm hearing the opposite from you, and I'm also hearing
Speaker 1: the opposite of how you were thinking when you went
Speaker 1: into when you went into Casey, and that's that's great.
Speaker 1: I'm learning a huge amount from this conversation, So thank
Speaker 1: you to tell me what you think advocates for abortion
Speaker 1: rights then should be doing. What strategy would you like
Speaker 1: to see followed, both in the court in cases where
Speaker 1: in your review a pro choice people are going to lose,
Speaker 1: and also more broadly, in the society. So first, in
Speaker 1: the court, clearly, whatever cases are headed there, it sure
Speaker 1: would be nice to delay them as long as possible.
Speaker 1: Again on the theory, if you're going to lose, let's
Speaker 1: lose later. But second, I think in the courts, we
Speaker 1: want to look to state courts, particularly state supreme courts,
Speaker 1: to establish independent state constitutional rights to abortion and reproductive freedom.
Speaker 1: A number of states have done that in the context
Speaker 1: of medicaid funding for abortion. For example, the Kansas Supreme
Speaker 1: Court just a couple of weeks ago issued an opinion
Speaker 1: establishing an independent right, and the value of that is
Speaker 1: it permits state courts to then strike down as unconstitutional
Speaker 1: under the standards that are independent to the states, any
Speaker 1: restrictive laws that are passed at the state level. So
Speaker 1: I hear you, and it makes perfect sense. Isn't that hopeless? Though,
Speaker 1: in the very states that are passing the most restrictive
Speaker 1: anti abortion laws, the Alabama's, the Georgia's, the Iowas I mean,
Speaker 1: isn't it precisely those states where state supreme courts, and
Speaker 1: in some cases I should add, those state supreme courts
Speaker 1: are elected. The Alabama state Supreme Court is actually elected.
Speaker 1: Let me talk about strategies that seem unlikely to work.
Speaker 1: Isn't it the case that almost all states where a
Speaker 1: legislative majority would enact a ban on abortion are also
Speaker 1: the same states where the state supreme court would say
Speaker 1: it's constitutional to do so. Yeah, some, but not all. So,
Speaker 1: for example, Pennsylvania has this democratically controlled state Supreme Court.
Speaker 1: I don't know where they're going to come down on abortion,
Speaker 1: but their legislature is very red and they just passed
Speaker 1: a ban on abortions if you needed it in cases
Speaker 1: of down syndrome. So the answer is yes and no.
Speaker 1: States very Alaska, for example, very libertarian state. Their supreme
Speaker 1: court reflects that libertarian notion. Look, and I'm talking about
Speaker 1: a ten year strategy here. We're talking about how do
Speaker 1: you preserve rights in the short term in the long term,
Speaker 1: and obviously state constitutions are a longer term strategy. I've
Speaker 1: always believed you need to establish a parallel and independent
Speaker 1: right at the state level. So it might work in
Speaker 1: purple states, in other words, where the legislature is read
Speaker 1: but the court is bluish well, and also in states
Speaker 1: where the Supreme Court is elected and the majority of
Speaker 1: the citizens believe in the right to choose. Just because
Speaker 1: the legislature is read doesn't mean the citizens rate is.
Speaker 1: And it's a lot easier to elect two or three
Speaker 1: or four justices to a Supreme Court than an entire legislature,
Speaker 1: So you know, there's plenty of opportunities there. So go
Speaker 1: on then to talk about the other strategies that you
Speaker 1: are alluding to earlier. So on the legislative level, obviously,
Speaker 1: the preferred route is to have a federal constitutional right
Speaker 1: or a federal l slate of right, so that women
Speaker 1: have the same rights in every state. You know, your
Speaker 1: ability to make reproductive decisions shouldn't depend on where you live.
Speaker 1: To do that, you would need to take back control
Speaker 1: of the Senate with a pro choice majority and pro
Speaker 1: choice leadership, So that would probably mean turning it blue,
Speaker 1: and you would need a pro choice president who could
Speaker 1: sign it into law. Again, a possibility in twenty twenty,
Speaker 1: less likely than it has been in some years, but
Speaker 1: certainly a possibility in twenty twenty. But the other route,
Speaker 1: which I am firmly of the view that we need
Speaker 1: to pursue, is that state legislatures are often controlled by
Speaker 1: very few people. A few flips won't make a difference
Speaker 1: in terms of control. A pro choice governor who's willing
Speaker 1: to veto a bad bill is really key. So we
Speaker 1: need to look politically at the states. I would start
Speaker 1: with electing pro choice governors. My preferences women governors who
Speaker 1: understand these issues, but certainly any governor who's pro choice
Speaker 1: is phenomenal. And then to take control of at least
Speaker 1: one chamber of a state legislature in order to block
Speaker 1: bad laws. You know, in the days after Webster was
Speaker 1: decided and before Casey, I was the aclused person who
Speaker 1: went out to the states and developed the expertise and
Speaker 1: killing bad bills. And there's all kinds of ways you
Speaker 1: can do that. I mean, I was in forty four
Speaker 1: states in those years, in a two year period where
Speaker 1: there were over eight hundred restrictions introduced, and there's lots
Speaker 1: and lots of ways to kill bad bills, but the
Speaker 1: easiest and best is to either have leadership of one
Speaker 1: chamber or a governor who can veto And frankly, we
Speaker 1: ought to be focusing it on it strategically geographically because
Speaker 1: now most blue states are on the coasts, and we
Speaker 1: got to give women in the middle of the country
Speaker 1: some options or at home. May I try to dig
Speaker 1: a little deeper on your proposal for a federal law,
Speaker 1: obviously requiring a pro choice majority in both houses and
Speaker 1: a pro choice president that would protect abortion rights for women.
Speaker 1: I have sort of two questions about that. The first is,
Speaker 1: do you think that the Democrats should have passed such
Speaker 1: a law during those handful of brief moments over the
Speaker 1: last fifty years where they had that There was a
Speaker 1: brief moment in the content administration where that existed and
Speaker 1: another brief moment in the Obama administration where that existed.
Speaker 1: Did the Democrats miss an opportunity thinking well, the Constitution
Speaker 1: now protect abortion rights, so we don't need a federal law.
Speaker 1: Should they have tried to pass a law? Then? No,
Speaker 1: because it would have undercut the constitutional right which we
Speaker 1: believed to exist. So it's not a story of missopportunity.
Speaker 1: So let me ask a follow up question. Then, imagine
Speaker 1: the Congress did pass such a law. And I know,
Speaker 1: I don't want to get too into the constitutional law weeds,
Speaker 1: since you argue constitutional cases and I teach constitutional law
Speaker 1: for a living, and it would be easy for us
Speaker 1: to go to into the weeds. But I'm wondering, wouldn't
Speaker 1: such a bill be vulnerable to the idea that the
Speaker 1: Supreme Court could strike it down. A conservative court could
Speaker 1: strike it down by saying it was an overreach and
Speaker 1: that the federal government didn't have the capacity to block
Speaker 1: the states from passing laws that restrict women's right to abortion.
Speaker 1: Even a conservative court, I think would be going very
Speaker 1: far to do that. I just don't see them doing that.
Speaker 1: I mean, they'd be going pretty far to strike down
Speaker 1: Roe v. Wade, Right, I mean, we're our scenario is
Speaker 1: a precisely scenario where they've gone all the way to,
Speaker 1: as you said, eliminating a constitutional right. It's one of
Speaker 1: the first times the Court would ever have done that. Right,
Speaker 1: But at the same time, that is their sweet spot,
Speaker 1: that is the role of the Supreme Court is to
Speaker 1: interpret the Federal Constitution. Well, I don't see any constitutional
Speaker 1: basis for saying that a federal statute protective of women's
Speaker 1: rights was undermining the ability of states to control in
Speaker 1: this area. That the whole nature of federalism it has
Speaker 1: allows federal statutory protection. I just don't sing like a
Speaker 1: ninth Amendment. What I had in mind was the Violence
Speaker 1: Against Women Act, which you know, passed by by actually
Speaker 1: a bipartisan majority and signed into law, which included, among
Speaker 1: other things, provisions allowing suits by women who had been
Speaker 1: subject to gender motivated violence. And the Supreme Court struck
Speaker 1: that law down, that part of the law down on
Speaker 1: the ground that Congress had had overreached itself. So that
Speaker 1: was the sort of thing I had in mind. But
Speaker 1: that was a commerce clause argument, that is, there was
Speaker 1: no authority to pass the federal law. I think that
Speaker 1: there's multiple a locus of authority to pass a federal statute.
Speaker 1: Both the Fourteenth Amendment, Section nine, the commerce clause. I mean,
Speaker 1: women are going from state to state, doctors are going
Speaker 1: from state to state. Commerce is moving from state. I
Speaker 1: just don't see it being comparable. And then the other
Speaker 1: The other question that I had about that was, you know,
Speaker 1: one of the things that pro life advocates have sometimes thought,
Speaker 1: it's kind of there, it goes even beyond overturning Roe v. Wade.
Speaker 1: It's on there, you know, it's on their bucket list.
Speaker 1: Would be for the Supreme Court actually to say that
Speaker 1: under the fourteen Amendment of the Constitution, which says the
Speaker 1: government can't deprive persons of life, liberty, or property, that
Speaker 1: fetuses our persons. And if the Court were to say
Speaker 1: that a fetus was a person, then it would be
Speaker 1: impossible for states. I mean, that would take as much further.
Speaker 1: That would mean not only that we'd have the opportunity
Speaker 1: for some states to have laws prohibiting abortion and other
Speaker 1: states to permit it, that would actually effectively outlaw a
Speaker 1: worship at the national level. Yeah, I just don't see
Speaker 1: even this cord going that far for lots of very
Speaker 1: practical reasons. Because once you say a fetis is a person,
Speaker 1: does that mean they get a Social Security card? Does
Speaker 1: that mean they you know, have rights in car accidents
Speaker 1: and murder charges and all. I mean, there's just so
Speaker 1: many implications of creating personhood and very little support for it,
Speaker 1: even you know, even in Row, the court was very
Speaker 1: clear that wasn't a place they were going. And I
Speaker 1: haven't seen any court, even at the state level, go
Speaker 1: that far, or any district court go that far. It's
Speaker 1: just I just don't see it happening. Although that might
Speaker 1: be a strategic concern if if there was a movement
Speaker 1: to past federal legislation, that there might be some worry
Speaker 1: that it would be an invitation to the court to
Speaker 1: do that right, and in fact, they have done that
Speaker 1: in past years. For example, there was a fetal personhood
Speaker 1: amendment to the Constitution introduced in Congress repeatedly for probably
Speaker 1: twenty years. Yeah, but it didn't seem to go anywhere.
Speaker 1: So going back to the state legislatures, which is where
Speaker 1: you see the battle, the battle building, it sounds to me,
Speaker 1: and correct me if I'm wrong here, what you're picturing
Speaker 1: is kind of ongoing long range guerrilla warfare at the
Speaker 1: state level between pro choice and pro life advocates, with
Speaker 1: their pro life advocates constantly trying to get legislatures to
Speaker 1: pass laws and pro choice advocates going out to those states,
Speaker 1: just as you did to forty four states. You said,
Speaker 1: you know, using various political techniques to try to kill
Speaker 1: bad bills and to try to elect more liberal representatives
Speaker 1: or governors. And in that environment, it seems as though
Speaker 1: there is the real risk that in a bunch of states,
Speaker 1: especially as you point out states in the middle of
Speaker 1: the country, there will be women who can't afford to
Speaker 1: travel to other states to have an abortion, who are
Speaker 1: really going to face substantial constraints on their right to choose.
Speaker 1: Is that your you know, all things being equal, prediction
Speaker 1: of where we're headed, and if that sounds like what
Speaker 1: you're saying, and I want to be clear, if that
Speaker 1: is where you're sit away saying, yeah, Unfortunately, look at
Speaker 1: elections really matter. A speech for medical students for choice
Speaker 1: two weeks before the twenty sixteen election, and with the
Speaker 1: election of Hillary Clinton, we would have been absolutely assured
Speaker 1: that there wasn't the next justice of the Supreme Court
Speaker 1: would have been pro choice and none of this would
Speaker 1: have mattered. But yes, elections matter, and they they're going
Speaker 1: to matter for women in a whole host of ways.
Speaker 1: Abortions kind of the leading the tip of the spear.
Speaker 1: But don't think that the twenty five men in Alabama
Speaker 1: who passed this bill aren't coming after women in a
Speaker 1: whole variety of ways, whether it be equal pay, or
Speaker 1: whether it be sexual harassment, or whether it be all
Speaker 1: kinds of protections that we have understood to be constitutionally
Speaker 1: protected at the federal level. So I in my view, yes,
Speaker 1: it is trench warfare, but pro choice Americans need to
Speaker 1: understand that if they're going to preserve their liberties, we
Speaker 1: got to work hard at it, and we've got to
Speaker 1: do more than protest in the street. We've got to
Speaker 1: go out and of us and send postcards and make
Speaker 1: phone calls and do all of the hard work that
Speaker 1: most people don't love to do. But the anti choice
Speaker 1: movement has been very good at may I ask you
Speaker 1: about following up on that idea that the pro lifers
Speaker 1: have been very successful what they do. What sounds like
Speaker 1: it might be maybe I'm wrong, but a kind of
Speaker 1: tension between two different things that I hear you're saying.
Speaker 1: So on the one hand, I hear you saying that
Speaker 1: this is a long term battle. It's trench warfare or
Speaker 1: guerrilla warfare in some kind of long run, painful warfare
Speaker 1: in which in your read right now, the pro choice
Speaker 1: side is losing and in your prediction, is about to
Speaker 1: lose really the crown jewel of not only abortion rights,
Speaker 1: but arguably of women's rights in the United States, namely
Speaker 1: the holding of Roe v. Wade. On the other hand,
Speaker 1: you pointed out earlier that only maybe a quarter of
Speaker 1: Americans actually will tell polsters that they think there should
Speaker 1: be an abortion right under any circumstances. So if those
Speaker 1: things are both true, why are they both true? Why
Speaker 1: is it if it's a relatively small number of Americans
Speaker 1: who support the significant restriction of abortion rights, that the
Speaker 1: pro choice forces are losing as badly as you've described
Speaker 1: them as losing. Well, for two reasons. It's called political power.
Speaker 1: It's called Senator McConnell, who blocked President Obama's appointment to
Speaker 1: the Court and his push for anti choice judges and
Speaker 1: taking over the crown jewel, which was the Supreme Court.
Speaker 1: And that's power. The Republicans have never been afraid to
Speaker 1: exercise power, and Democrats have been more reluctant to get
Speaker 1: into that brawl. But the other thing, and I think
Speaker 1: this is important for people to understand, is that legislatures
Speaker 1: don't often who don't always reflect the views of their constituents.
Speaker 1: Unless they're forced to do so. And it is instructive
Speaker 1: to me to see Republicans now get nervous when they
Speaker 1: understand that Roe is in jeopardy, that oh, all of
Speaker 1: a sudden, they're going to have to be accountable for
Speaker 1: their vote, because up until now they've kind of coasted
Speaker 1: without having to either take a position or to take
Speaker 1: a position that wasn't really thought seriously as being significant.
Speaker 1: Let me just say one other thing. In the days
Speaker 1: after Casey was handed down, the first maybe five years,
Speaker 1: there was very little activity at the state level restricting abortion.
Speaker 1: There was some there was passage of laws similar to
Speaker 1: the Pennsylvania law, but you didn't see these huge efforts
Speaker 1: that you're seeing now. And the change started to happen
Speaker 1: in twenty ten following the census, when there was reapportionment, redistricting,
Speaker 1: a lot of jaiman during a lot of restriction on
Speaker 1: voting rights. You began to see more and more state
Speaker 1: legislature's gubernatorial seats taken over by the Republicans and therefore
Speaker 1: an uptick in the anti choice activity. To me, what's
Speaker 1: really critical is that we understand that voting rights is
Speaker 1: now a women's issue, that if we're gonna protect women's rights.
Speaker 1: We need to have fair districts, We need to have
Speaker 1: fair voting rules, We need to count every vote. Until
Speaker 1: those things are fixed, minorities are able to exert more
Speaker 1: power and control than is particularly fair. I really want
Speaker 1: to emphasize just how profound the thing you just said was,
Speaker 1: at least to me. You said legislatures do not necessarily
Speaker 1: reflect the views of their constituents. I mean, I can't
Speaker 1: think of really a more devastating critique of democracy itself,
Speaker 1: you know. I mean, the whole theory of democracy is
Speaker 1: supposed to be that we elect representatives and that they
Speaker 1: represent the views that we hold. And you know, if
Speaker 1: they're not representing the views that we hold, then democracy
Speaker 1: is failing in some pretty pretty fundamental sense. I mean,
Speaker 1: do you do you share that the pessimism that sounds
Speaker 1: to me is implicit in that observation? You know, I
Speaker 1: actually feel very optimistic that women are getting it. Let
Speaker 1: me give you an example. Vote Run Lead, an organization
Speaker 1: in New York was training women to run for political office.
Speaker 1: Last week, they had fourteen hundred women in twenty states
Speaker 1: coming out to learn how to run for political office.
Speaker 1: That says to me, there's a tsunami going on among
Speaker 1: women who are saying this ain't fair. We got to
Speaker 1: get involved, we've got to fix it. And that's a
Speaker 1: really good sign. But that dichotomy between who has power
Speaker 1: and who could earn power at some later date is
Speaker 1: kind of where we're at right now. And all I
Speaker 1: can do is be optimistic that we will work really
Speaker 1: hard to make a difference here. So your optimism, if
Speaker 1: I summing it up correctly, is it begins with the
Speaker 1: pessimism that you think rov Wade is done for. But
Speaker 1: then you're optimistically expecting a major mobilization of women across
Speaker 1: the country to run for office and win and change
Speaker 1: laws across the country, so that in the end, the
Speaker 1: final outcome, though of course the loss of roev Wade
Speaker 1: would be a terrible thing for women's rights, might actually
Speaker 1: be greater for the for the greater good, because it
Speaker 1: will mobilize so many people to go out and vote.
Speaker 1: Is that the Is that a fair characterization? Well, I'm
Speaker 1: hoping at least we could get back to where we
Speaker 1: were when we had federal constitutional protection, and that may
Speaker 1: be a long time. You know, if you don't have
Speaker 1: some optimism that you can make a difference, it's hardly
Speaker 1: worth joining the fight. So you know, I try to
Speaker 1: remain as optimistic spas well. It's inspiring to hear you
Speaker 1: maintaining optimism even through a veil of what strikes me
Speaker 1: as extremely powerful pessimism. It's a you have a story
Speaker 1: of the worst of times maybe leading to the best
Speaker 1: of times. So I'm very grateful to you for sharing
Speaker 1: that vision with us. It's fascinating and I can't say
Speaker 1: it's purely inspiring, because the worst of time's part is
Speaker 1: pretty depressing, but at least there's at least there's a
Speaker 1: silver lining that you're that you're describing in the in
Speaker 1: the looming storm. Thank you so much for reading with us. Thanks,
Speaker 1: it's pleasure to be here. Deep Background is brought to
Speaker 1: you by Pushkin Industries. Our producer is Lydia Gene Coott,
Speaker 1: with engineering by Jason Gambrell and Jason Rostkowski. Our showrunner
Speaker 1: is Sophie mckibbon. Our theme music is composed by Luis
Speaker 1: Gera special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg,
Speaker 1: and Mia Lobel. I'm Noah Feldman. You can follow me
Speaker 1: on Twitter at Noah R. Feldman. This is deep background