Factually! with Adam Conover - Confronting a Future without Roe v. Wade with Mary Ziegler

Episode Date: September 22, 2021

The right to an abortion has been in legal limbo in America for years. What does the passage of SB8 in Texas mean for abortion access in this country, and what is the future of Roe v. Wade? On the show this week to answer this question is Professor Mary Ziegler. You can check out her book, Abortion and the Law in America: Roe v. Wade to the Present, at factuallypod.com/books. Learn more about your ad choices. Visit megaphone.fm/adchoices See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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So if all of that sounds good, if you want a big box of delicious snacks like this for yourself, use the code factually for $15 off your first order at Bokksu.com. That's code factually for $15 off your first order on Bokksu.com. I don't know the way. I don't know what to think. I don't know what to say. Yeah, but that's alright. Yeah, that's okay. I don't know anything. Hello and welcome to Factually. I'm Adam Conover. Thank you so much for joining me once again. Let's just jump right into it because we have an important issue to talk about today. You know, for my entire life, the Democratic Party has been saying that if Americans don't vote for them, Roe versus Wade is going to be overturned. That's been their pitch for basically all of the decades that I've been on this earth. if you do not vote for Democrats, Roe versus Wade is going bye bye. And that always seemed like somewhat of an apocalyptic prediction, right?

Like not impossible, but, you know, often the misty future, like maybe it could happen one day. But, you know, that's just what they're saying to get everybody riled up. But it didn't seem super likely that a right that was bestowed by the Supreme Court could be overturned that easily, or that at least there were a lot of steps between us and that reality. But lately, that reality has seemed a lot closer to our daily lives. In fact, we might be on the verge of stepping over that precipice as we speak.

It really does seem like the end of Roe may be upon us and that the right to have an abortion, the right to choose whether or not you're going to have a child may no longer be guaranteed in American society. Early this month, the Supreme Court refused to block a let's be generous and say creative Texas bill, perhaps insanely creative Texas bill that virtually banned abortion in the state using very complicated legal means. We'll get into those in the interview upcoming. And there's another case out of Mississippi that is going to be on the court's docket very soon. And the outcome of that case could determine whether or not Roe is totally overturned by just June of next year. Now, abortion has existed in this country

in something of a legal limbo for years. Roe versus Wade, the Supreme Court decision was meant to guarantee that right. But many states have done everything possible to make abortion more difficult. Twenty five states require waiting periods that try to ice women out like they're shaky NFL kickers. Does that joke track? My producer Sam wrote that. Let me know, NFL fans. And 18 states require counseling where women are forced to listen to state-mandated bullshit with very shaky medical grounds. And in some states in the South, well, forget about Roe, abortion is already incredibly difficult no matter what the Supreme Court says. The entire state of Mississippi has only one abortion provider. For now, it might be zero sometime soon.

The right to an abortion has been hanging by a thread in this country for years. And now it looks like that thread is about to break. So we have to start asking, what will this new post-Roe world look like? And how do we get here? Well, to tell us, we have an incredible guest on the show today. Her name is Mary Ziegler. She's a law professor at Florida State and the author

of Abortion and the Law in America, a Legal History, Roe vs. Wade to the Present. If you have any questions about this subject, I think you are going to get a lot out of this interview. So please welcome Mary Ziegler. Mary, thank you so much for being here. Well, thank you for having me. It's obviously been a big couple weeks at the Supreme Court related to abortion rights. Just to start us out, would you tell me, from your point of view, what is the Texas law, SB8, and how does it differ from other attempts to curtail abortion rights around the country? So SB8 is similar in some ways to what we've started to see called heartbeat bills, which ban abortion around the sixth week of pregnancy.

And it's worth just stopping to say what that means. So it doesn't mean six weeks after you know you're pregnant and six weeks after your last period. So for most people, that's going to be like two weeks at most for a pregnancy test. I didn't realize that. Yeah. I mean, you have to stop and think about it. So that means, so most of these laws criminalized it if a doctor performed an abortion after that point. SB8 is different because it doesn't criminalize it and it doesn't let the state enforce the law. Instead, the only people who can enforce the law are literally like anybody else, right? So like if you want to sue somebody in Texas for performing an abortion, when we're done with this conversation, you can go for it because SBA doesn't

stop you. And it not only allows you to sue people who do abortions, it also allows you to sue anyone who quote unquote aids or abets someone performing an abortion, which means probably people helping to pay for it, people driving you to the clinic, people, you know, Googling where the clinic addresses any kind of help like that might count too. It lets those folks get a minimum of $10,000. It lets them get their attorney's fees paid for. If you are sued, you can't get your attorney's fees. So it creates a pretty big incentive for people to end abortion in Texas. Yeah. A profit incentive too. Like you could literally in the same way that, you know,

I know from working in the entertainment industry, there are like you know, firms that will you know, sue for copyright infringement or things like that, that sort of have a business model of let's look for this particular type of infringement. We know we can win this type of case over and over again. We can build a business on suing on these grounds because we know how it works. This sort of creates the same kind of industry in Texas in a way. Is that right? Yeah, I think that's right. And so obviously some of the people bringing these lawsuits are going to be, you know, anti-abortion activists who don't like probably don't even need a financial incentive, right? They would just do this for fun, but it does incentivize all kinds of other people. Like the people who wrote the law mentioned the idea that people like family members,

right, might report on one another to get money or neighbors or people in the same church or community. So it definitely creates a profit motive. And one of the things as you're talking that hadn't occurred to me before you started explaining this is that this is being done through the civil courts, right? That this is not, it's not a criminal violation. You're not going to go to jail. You're not going to have that type of trial. It's instead our other legal system, the civil courts, which is operate according to different rules, right? I mean, why choose that method and what is the impact of doing it that way?

I think there are probably two big reasons. Number one is that Texas didn't want to get sued and lose. So if you, if you're somebody violates your civil rights and they violate your constitutional rights and you challenge that and you win, you can get your lawyer's fees paid for. And if your case goes all the way up to the Supreme Court, that gets really expensive. So Texas lost a Supreme Court decision in 2016 and had to pay $2.5 million in lawyer's fees. So Texas was done, didn't want to do that anymore. So they were saying, if we're not the ones enforcing the law, then we're immune from a lawsuit, which is the way U.S. law works. The only way you can sue a state is if a state official is enforcing an unconstitutional law. Texas's argument here is, hey, we're not enforcing anything. This is just

these random private citizens doing the enforcing. The second reason is, if you stop and think about it, how else is Texas going to enforce a law like this? Because realistically, if you're in Texas, you can get online, you can order abortion medication on the internet, you can hop in your car and drive to New Mexico. There's no way the state is going to know you're doing that unless it has a network of informants telling on you, right? So it's sort of a necessary way. If the state wants to stop abortion in Texas, it needs the help of a lot of people, right? Like if they're not enough government officials in Texas to get it done. But this is such a weird mechanism. Like it, it violates kind of my understanding of how my naive lay person's understanding of how the legal system works. Like I sort of imagine when you sue someone it's because you were harmed by the thing that the

person did. Uh, but in this case, if I sue someone again, as you said, as a private citizens in California for having an abortion, well, that didn't affect me. It had nothing to do with anything with my life at all. So naively, I'd be like, why would you even have grounds to sue? Like, how does the law even create that ability? Yeah, well, Texas law doesn't have so your intuition maps onto how the law usually works, which is usually you have to have what's called standing legally, right? And to have standing to show that you were hurt and not only that you were hurt, but that like the person you're suing had something to do with it and that a court can remedy it. If any of those things are missing,

you can't go to court. Texas law doesn't work that way. So Texas doesn't have the same kind of standing law. So if the legislature wants to say, you know, me in Florida, are you in California, and we have nothing to do with it, and we just feel like suing, Texas can allow us to do that. But that's just a function of their state law. That's weird. Wow. So, so they did. So the legislators who created this law did it in such a way that like Texas cannot be itself be sued for creating this law. But of course, it it went to the Supreme Court. The Supreme Court refused to block it. Can you just walk us through the reasoning that the justices that were in the minority in the majority, excuse me, used to to come up with that decision?

Yeah. So how it started essentially some abortion providers in Texas sued and they argued the law was unconstitutional, which pretty clearly the substance of the law is unconstitutional because it bans abortion two weeks after a missed period, which is, you know, not what Roe v. Wade says. Roe v. Wade says you have a right to choose abortion until viability, which is like around the 24th week. So they had to figure out who to sue though, right? Because you can't sue the state unless an official is enforcing the law. So they just decided they were going to sue lots of judges, lots of people they thought were going to bring lawsuits, just sort of try to cover all their bases. And the Supreme Court looked at it and

said, well, we don't really know if any of these people are going to enforce the law at this point. And Texas has said, none of these state officials are going to enforce the law. And you haven't really proven that that's not true. So you don't have a right to be in federal court. Even if this law is unconstitutional, you still need to be able to sue the right person to prove it. And you haven't shown that you can do that. And that's why the law got to go into effect.

Now, it may be a game changer if someone in Texas actually violates the law and gets sued, because if they do that, they're going to be in a specific court with a specific judge. And it's going to be pretty clear that that judge is holding a trial and making them pay money and that sort of. So at that point, it'll be clear who's doing the enforcing. But this early on, it wasn't really clear, or at least that's what the Supreme Court said. And so, all right, the Supreme Court said, whoa, this is such a crazy law that like we don't know how to handle it. Like you're someone they're trying to sue to stop it. But like, wow, we can't even tell who's enforcing this thing. But because they because they decided not to block the law, like abortion clinics in Texas had to close for fear

of being sued. So it, even though you're saying at a later date, this could come up again, once it like becomes more clear, it's had an immediate impact now in Texas. Right. So what's happened in effect is that most abortion providers or pretty much all abortion providers have said, we're not going to violate this law because we don't want to pay, you know, tens or hundreds of thousands of dollars. We don't want to get, you know, court orders shutting us down. We don't want to have to pay all these people's attorney's fees. So we're just not going to perform abortions at all, other than in the first two weeks after people find out they're pregnant. In practice, that means about 85 to 90% of the abortions that were happening in Texas have been stopped. So unless somebody is willing to challenge the law, effectively like get caught and get sued, there's not going to be that kind of challenge.

And then to make matters even more complicated, the U.S. Supreme Court is hearing a case that could overrule Roe v. Wade later this year and could potentially have eliminated Roe v. Wade entirely by the summer of 2022. Okay, let's come to that case in a second, because that case I know a lot less about, and I really want you to break it down for me. But just returning to the Texas law for a moment, based on what you've told me, it sounds like it's just a cleverly crafted law that has sort of created its own loophole, that they've tried method A, that was shot down, method B, method C, method D, method E, now they're on to method X or whatever. And they crafted it in such a way that it's got this really weird enforcement mechanism. And it was just strange enough that the Supreme Court threw up their hands at it because when someone tried to try, tried to bring it to them, it was

like, oh, well, the person enforcing this law is like a phantasm. It's a ghost. Like, uh, I don't know. We, you can't see the person behind the curtain. Therefore, you know, we can't do anything about it. Um, like it's almost a legal fiction in a way. I mean, how do you how do you characterize like this, this law and how it works? Well, I mean, the law was definitely clever. It was designed to do just what it did. And it actually started weirdly, there's a small town called Wascom, Texas that has a couple 1000 people living in it. And the dry run for this law was there. And that city wanted to ban abortion. And lawyers in the anti-abortion movement were like, well, that's great, but we don't want you to get, you don't have any money.

So if you get sued and have to pay other people's attorney's fees, you know, the city of Wascom, Texas is not just rolling in money. So that wasn't going to end well. So they thought, okay, let's, you know, the solution is you pass the law and then you don't enforce it and then no one can sue you. And they tried that and then wanted to expand it out to the state level. The Supreme Court's piece of it feels a little bit disingenuous because the court has a history of creative lawyering, like ways to get around procedural obstacles. And so one recent example, right, we've seen this is called shadow docket decisions. Right. So when the court is deciding these emergency orders, this is called shadow docket decisions, right? So when the court is deciding these emergency orders, deciding them at midnight, you know, you don't

know who wrote the opinion. It's all very kind of hush hush. They had another one like this earlier during the COVID-19 pandemic involving stay-at-home orders in churches. And the churches were saying, hey, these stay-at-home orders that say no in-person worship, they violate our freedom to religion. There were some procedural obstacles there, too. And the Supreme Court found a way around it. And so some people are looking at this and saying, you know, this feels like it's more about abortion than the Supreme Court is admitting and that this is more about the Supreme Court treating abortion differently. Right. I mean, it's just there's a certain amount of like ludicrousness to what's happened. I mean, if if this method works, it seems like you could just pass any unconstitutional law this way. We've just created a mechanism by which anybody can sue to prevent, I don't know, churches.

If I want to ban churches, right, I could just make it so anyone could sue a church for existing. But I haven't banned. Oh, you can't sue me, the legislator, because I've just created like it's it's a it just seems like nothing but a loophole in order to get around a provision that has been previously decided is in the Constitution. And I don't know it like it seems hard to accept that it would stand as a decision but do you feel that it that it will like do you think this strategy will ultimately be five years from now is this law still going to be around do you know i hope not right because you're right that like massachusetts could say okay everybody guess what like you remember your right to bear arms. Now we're going to ban you having a handgun in your home. And like, you know, some other state like Texas could say, hey, remember your right to vote?

Well, not so much. And everybody could do that. It's just hard to believe because there would be no way for anybody to enforce constitutional rights anymore. That just seems like I mean, your intuition as a layperson is my intuition as someone who studies this, which is just that's bananas. There's no way that can stand. I don't know if it will take, you know, a progressive state passing a similar law that the Supreme Court doesn't like for it to dawn on them that, hey, maybe this is a precedent we don't want to set, period, regardless of which constitutional right is at issue. But I have to think sooner or later that's going to happen just because there's no way, you know, we might as well not have constitutional rights if this sort of thing is allowed. Yeah, it's just as a it's just such a blatant end run that it seems hard that seems hard to imagine the Supreme Court countenance countenancing it. Yet they did. Well, let's talk

about the the upcoming case, if you would, if you would tell me about that, because as I said, I know a lot less. It keeps coming up in the coverage of SBH. Oh, there's this other case coming up, but there's been a lot less coverage of it that I've seen. So if you'd, yeah, fill me in. Sure, yeah. So there'll probably be more as it gets closer. So this is a Mississippi law that bans abortion at 15 weeks. So, again, that's like 15 weeks after your last period. It's not

15 weeks after you found out you got pregnant. Um, so the Mississippi claims that's when, um, fetal pain is possible. Um, that's not what most scientists say. They say it's much later in pregnancy, like closer to the 28th or 30th week. What's important is that, um, you have a right to choose abortion under a row in the cases following it until viability. And viability is usually the point at which survival outside of the womb is sort of realistic, right? Like 40, 50% of preemies at this point survive. That's around 24 weeks. Mississippi is banning abortion at 15 weeks. And the Supreme Court wanted to hear this case, probably because the Supreme Court is going to uphold the law. So what that means is to uphold the law, the Supreme Court

either has to say, we were wrong that you have a right to choose abortion, or we were wrong that it lasts until viability. And either of those things would be a really big deal. That either means overruling Roe v. Wade, or it means rewriting Roe v. Wade and then opening the door to rewriting it or eliminating it down the road. And I mean, you're talking about this almost as if it's a foregone conclusion. That is really the ruling that you anticipate based on what you've seen? Yeah. I mean, obviously we have six justices on the court who were nominated by Republican presidents who vowed to see Roe v. Wade overturned. We have this Texas order, and everybody had pie on their face. There's no reason to think that's going to happen this time, whether that happens, you know, immediately, right? I mean, I would be a little surprised still if the Supreme Court reversed Roe in 2022 versus, say, like,

2023 or 2024, but I would be even more surprised if they didn't overrule Roe at all. Well, and it seems as though the main vector for surprise in decisions in the past couple of years who has been John Roberts is no longer the deciding vote, which is the, you know, everything that I saw about what the impact of what Amy Coney Barrett's nomination would be. But yeah, just tell me a little bit about his role and, you know, yeah, how how what approach he has taken in the past and and what his position is currently. Yeah. So John Roberts is the chief justice. He was nominated by George W. Bush. He's, you know, a conservative, but he's often the word a lot of lawyers use for him is he's an

institutionalist, which usually they mean, you know, he cares about the reputation of the Supreme Court. He cares about his own reputation. He's worried about doing things that will make the court look bad, basically. So he's been concerned, not necessarily about keeping Roe forever, but making it seem as if the court cares about its own past decisions. So you don't just put different people on the court and, you know, get a complete 180 in terms of decisions. Sometimes, even with Amy Coney Barrett and Brett Kavanaugh there, John Roberts can convince them to go along with him, right? He doesn't have a deciding vote anymore, but he still can try to persuade his colleagues. But he doesn't hold that vote anymore, because even if he joins his liberal colleagues, which he did, he didn't want SBA to go into effect. He's outvoted. Right. Because you still have Kavanaugh, Barrett, Alito, Thomas and Gorsuch, who are the other conservative five. And so that that was one of the reasons Amy Coney Barrett's confirmation was such a big deal.

Amy Coney Barrett's confirmation was such a big deal. Yeah. And there have been some other surprising, you know, majorities over the last couple years that I've seen, but this seems to be the issue where that new conservative majority, this is the side that their bread is buttered on. Like this is the issue on which they're not going to really surprise you that much in terms of, I mean, there were some, some we talked about on the show a couple of weeks ago. Some surprising statements from, I think, Kavanaugh on antitrust and stuff like that.

But that's not something that we would anticipate seeing on the issue of abortion. Yeah. Well, I mean, in part because I mean, there are two there are two ways you could view it. Number one, I think the only reason we might see it is because everyone is watching when it comes to abortion. Right. If the Supreme Court says something about a lot of other things, most people will never find out. And if they do find out, they probably won't care. Right. A lot of what the Supreme Court does, they sort of do in the cover of night.

No one really knows what it is. Like they've made some pretty big changes to the death penalty, for example, recently, and nobody talks about it. But with abortion, it's like everybody cares. So they may be a little more reluctant to pull the trigger because they know that the fallout could be much bigger. On the other hand, because abortion is a big deal, these people have been screened, you know, in no small part to overrule Roe, right? So if the people who invested all this time and all this money and whatever into picking these specific people to serve on the court, you know, they would have to have made

a pretty big error in judgment if these justices decide not to overrule Roe. Yeah, and so it sounds like the surprises that we may see or the debates that they're gonna have are gonna be about tactics of how they how they decide to go about uh achieving their goal of overturning rope maybe they say the mississippi case uh not yet but how about next year something like that because oh we think it'll look better next year something along those lines yeah i think that's right i think that um there's going to be even

the texas order as technical as it was felt like it wasn't just being written to lawyers. It felt like it was being written to everybody, right? I think they don't. And then since then, Stephen Breyer, Amy Coney Barrett, and Clarence Thomas have all been giving talks saying, hey, you know, we're not politicians, guys. We're not partisans. You shouldn't think of us that way. So clearly there's some awareness that everybody thinks they are partisans, which is why they have to say they're not all the time. So if that's true, I think you're more likely to see them make the case to the public about why they're getting rid of Roe over a period of time, maybe over like a couple of Supreme Court decisions, a couple of years to sort of soften the blow when it happens. I could be wrong about that, right? Because there's a contingent of conservatives on this court who really don't care about political, like Clarence

Thomas could care less about political, like he probably enjoys pissing people off is my impression. So he's, you know, if he's, his voice is ascendant in this conservative coalition, they'll overrule right away. I'm not sure if Amy Coney Barrett and Brett Kavanaugh, who are like probably the swing justices in this equation, if they're all the way to Thomas's end of things. And if they're not the way to Thomas's end of things. And if they're not, then we may see a lot more, you know, kind of throat clearing and case making before the court gets around to overruling Roe in a year or two. Wow. Well, let's talk about what happens when that happens. I mean, that's been presented for

my lifetime as being kind of an apocalyptic endgame, right? Roe is overturned. And that's the thing that, you know, generations of Democratic activists have been running, you know, elections on that. We have to make sure this doesn't happen. You're presenting it as, hey, we are we can be pretty certain this is going to happen. What happens when that happens? And then what happens next? when that happens and then what happens next? Like, what do you anticipate the new legal regime nationally around abortion to be if Roe is overturned?

So most likely we'd see, we've already seen a little of this, right, where there's sort of pretty sharp differences between different states when it comes to abortion. We'd see a pretty dramatic increase in that. So roughly between about 20 and 25 states would probably ban all or most abortions. There'd obviously be some blue states that won't ban abortions and may even try to take steps to make abortion more accessible. And then there'll be people, there'll be states rather in the middle that are kind of like the proverbial battleground states where we won't really know ahead of time what's going to happen. That, of course, won't be the endpoint, though, because you have pro-choice folks who are saying, if the Supreme Court overrules Roe, we're going to push

really hard to change the Supreme Court, whether that's term limits for Supreme Court justices, whether that's adding Supreme Court justices. They're going to push for federal legislation protecting abortion rights. They're going to push state legislation protecting abortion rights. And then on the flip side, the people who are opposed to abortion have already telegraphed that what they're going to do is go up to the Supreme Court and say, hey, guess what? Abortion is actually unconstitutional. that a fetus or unborn child is a person under the 14th Amendment of the Constitution. And if that's a person, that person has rights and abortion is unconstitutional everywhere. So that means you can't have an illegal abortion in California any more than you can in Alabama. So overruling Roe is going to just be sort of like a chapter in the conflict. It won't be sort of like the end of the story as much as it would be a really big deal because we'd be looking at, you know, pretty serious criminal penalties, you know, in a lot of states. Yeah. And that's that goes a lot further even than what we're seeing in Texas, because,

again, that's a law that makes it a civil, you know, a civil penalty that you could be sued, but doesn't criminalize the act of getting an abortion. Right. The Texas law doesn't mean that a woman who gets an abortion will, you know, face any jail time or prison or anything like that. It means the person who gives the abortion can be sued for such and such an amount of money. But if Roe is overturned, the door will be open to passing laws that will make it literally illegal for a person to receive an abortion. Right. I mean, at the moment, people in the Right to Life movement are arguing they don't want to do that. And they're arguing that women and pregnant people are victims of abortion. I don't know how long that's going to last.

And the reason I say that is because of medication abortion. I don't know how long that's going to last. And the reason I say that is because of medication abortion, right? So if all you need to do to have an abortion in a state where abortion is legal is get abortion medication on the internet, then, you know, if Texas bans abortion and they say, okay, we're going to try to go after the doctor who mailed you the abortion medication, that person's probably in a place like California, or maybe they're not even in the United States. Or, you know, you go after the company that made it, you know, that's not going to work either, because California is not going to ship that doctor to Texas to face criminal prosecution for something that isn't wrong in California. So who are you going to be able to get to? Well, the person who took the medication, who actually lives in Texas, and who's that going to be? That's going to be

the woman. So I think sooner or later, you know, I don't know how long, though, we're not going to punish the people having the abortions thing is going to last. That's the status quo. But I don't know if that's going to be, you know, the end game. You know what? You know, this weirdly reminds me of what you just described is the state of marijuana legalization in America, where it's like it's legal in a bunch of states, illegal in others, technically federally illegal, but not but enforced patchily, you know, as a, you know, affluent white person in California, I can get marijuana very easily. I'll never be prosecuted for it. But there are still people in the country who are, you know, poor folks, black and brown folks who are being sent to jail for it elsewhere in the country. And it's just like crazily balkanized.

And there's like no real country. And it's just like crazily balkanized and there's like no real standard. And that sucks. I don't know if that comparison tracks for you, but that seems bad. I think that that's what we would expect. I mean, I would I think that, you know, people, primarily low income black and brown people getting taken down for that is is what we would expect. I mean, some states, not Texas, but some states already had laws essentially saying you can't manage your own abortion. Even if abortion is legal, you have to get a licensed physician to do it. And we've seen a handful of prosecutions of people under those laws. And unsurprisingly, almost all of the people getting prosecuted under those laws are poor, disproportionately

likely not to be white. And we'd probably expect to see more of that because people who, I mean, the other question, right, I think, which is why you often are going to see black and brown people being, you know, the ones being affected by this is because they're the ones who are going to be most likely to get caught, right? I mean, there are people who may not be able to get access to abortion medication until later in pregnancy than you're supposed to use it. They might then have complications and show up at the hospital so people find out what they did. People who are black and brown are, of course, more surveyed by the police to begin with, right? So they're just more likely to come into contact with someone who's going to find out that they had an abortion than other people will. And people with money, of course, you know,

can travel out of state. They can take care of this whole thing in places where there's no nobody from the state that's banning abortion even watching. And those not to say those laws won't affect people with money, too, because they will or that they won't affect white people, too, because they will. But historically, and I mean, we we have no reason to expect this would change, that the effects will be the most intensely felt by people with the fewest resources. Yeah. Well, I just want to talk a little bit more before we go to break about the possible response from pro-trace advocates, from Democrats on this. You were saying there'll be a call to pass federal legislation passing a right to, protecting a right to abortion. Would that so say Roe v. Wade is overturned and this Texas law is still on the books. Would a federal law have the power to protect abortion in the same way that Roe v. Wade did and overrule all these various state laws?

And, you know, let's set aside whether such a law would be difficult to pass. You know, do you think it would stand up to, you know, legal scrutiny afterwards? Like, what do you think the prospects are for that strategy? I mean, the problem, obviously, unsurprisingly, is that that law, if there was a challenge to the law, which there would be, the challenge would go to the same U.S. Supreme Court we're expecting to reverse Roe. And the question there would be more, you know, does Congress have the authority to pass this law in the first place? And if you kind of probably something that would feel vaguely familiar

to people is, you know, that all the legal challenges to Obamacare, right? You know, a question about whether Congress had the power to do that. And, you know, Congress only has a limited number of kind of hooks it can hang its hat on when it comes to why it can legislate, right? It can do it to raise revenue under the tax power. It can do it, you know, to regulate interstate commerce. It can do it limited ways to enforce rights. The rights thing is going to probably be out if the Supreme Court says there's no right to choose abortion. Congress isn't going to be able to disagree. And this Supreme Court has tended to interpret the other two ways you can go pretty narrowly. So it may be difficult if there is a federal law, you know, to enforce it if this is the Supreme Court we're going to have, which is why I think there's going to be difficult to pursue. Yeah, it strikes me that this is a, and I've seen a little bit of, you know, analysis or speculation about this, that this move from, you know, pro-life forces or anti-abortion

forces is something that could really serve to radicalize a lot of the Democratic Party infrastructure that like these conversations about restructuring the Supreme Court or even in, you know, Texas electorally, that it could lead to a backlash among, you know, pro-choice advocates in Texas, like a lot more political mobilization. And it seems like a spark that could start a fire that could move in some unpredictable ways politically. I think that's right. I mean, and I think one of the lessons from the history of reactions to Roe is that basically sometimes a big win in the Supreme Court isn't as good for your social movement as you think it is. And I think we would have somewhat of a backlash rate because it's true that American popular opinion on abortion is complicated. Americans seem to

like a lot of restrictions on abortion. But when you're talking about bans early in pregnancy, those are very unpopular. When you talk about overruling Roe, that's very unpopular because people don't like criminalization. They don't like bans. And what we're going to get if Roe is gone is obviously Roe being gone, which isn't going to be popular, and criminalization and bans, which aren't going to be popular. So you would expect there to be a backlash simply because lots of data tell us that that's not what most Americans want. The only thing that might make that not happen is simply if there's just so much other crazy crap going on in the world that people don't have the bandwidth to care about abortion, right? I mean, because of the pandemic or whatever disaster of the day is happening. But barring something like that, that's absolutely what we

would expect. Well, no, it's true, though, that's absolutely what we would expect. Well, no, it's true, though, that this is one of the, you know, the Supreme Court decision was, you know, one of the most momentous, you know, legal decisions or, you know, of the past decade, where, you know, this is like a big bit of constitutional history happening. And it fell off the very top of the New York Times, you know, web page after a couple of days, you know, and it was it was sort of sort of on row two. Right. So that because there's so much other crazy shit happening. So that's a great point. But I want to get more into the history of this conflict, these competing movements. But we got to take a really quick break. We'll be right back with moreary ziegler um so i want to learn more about the history of you know how we got to this place um like when uh it because it me that, you know, looking at this Texas law,

that this was, must've been the result of constant iteration on, you know, from anti-abortion activists of how do we pass something that will allow us to ban abortion? Thing A didn't work, thing B didn't work, thing C didn't work. And that is what I was really excited to have you on to talk about, to sort of like, you know, chart some of this history. So if we could start with, you know, after Roe versus Wade was decided, what was the immediate reaction to it? And sort of how did we get on the path that brought us here? Yeah, so the immediate reaction of the anti-abortion or pro-life movement was to try to amend the constitution, right? Because the end game has always been no abortion anywhere. So they looked at Roe v. Wade

and they said, this is bad, but the big problem is not just that Roe v. Wade recognized the right to have an abortion. It's also that it didn't say abortion was unconstitutional. So we want to amend the constitution to make abortion unconstitutional so we want to amend the constitution to make abortion unconstitutional everywhere so was that was was there a movement trying to make abortion unconstitutional before roe v wade was decided i didn't realize no um before roe v wade was decided the anti-abortion movement thought they didn't need to do that because they thought abortion already was unconstitutional right their position was that's what the constitution has always said and then after roe v wade they thought okay well no can't do that. We have to actually have a constitutional amendment saying that because clearly the courts and other people don't believe that, which is how we got Roe v. Wade. anti-abortion movement realize what other social movements have learned, which is that you can't really amend the U.S. Constitution anymore. Like if you wanted to amend the U.S. Constitution to

say like Friday is more fun than Monday, like it wouldn't work. Like it just has been a complete dead end. And so then what starts happening is they look back at the Hyde Amendment, right? You may have heard of the Hyde Amendment. It bans Medicaid funding for abortion. And initially, the Hyde Amendment was just sort of like an afterthought, like a stopgap while they were fighting about this constitutional amendment. And then they look back at it and say, hey, maybe this is something more than we thought it was. Maybe we can use laws like this to generate test cases for the Supreme Court. And maybe instead of caring about getting politicians to vote for a constitutional amendment, we care about getting

politicians who put right people on the Supreme Court to uphold these laws and the test cases we're bringing. And then the more of these test cases we have, the more the idea that there's a right to choose abortion just looks like a joke, right? If there's a right to choose abortion and you can't get an abortion in Texas and you can't get your abortion paid for and you can't do it at this point in pregnancy and you can't do it for this reason and so on and so on, Eventually it's going to be easy to go to the Supreme Court and say like, what right is there anymore? Just overrule the thing already. So that became the strategy. And we've seen iterations of that unfolding ever since. Yeah. Just these like little chipping away at the right, like piece by piece. And I mean,

I've honestly even heard that argument from folks who are pro-choice, but are saying, well, I feel like I've heard this, that like, well, you know, when Roe is overturned, like, is it going to be that big of a difference because the right to abortion, like functionally doesn't exist in so many states already that, you know, it's, you know, this apocalyptic framing maybe isn't right because we're already in the bad timeline, right? We're already in the world in which abortion is much harder to get than, you know, a stricter reading of Roe would allow it to be. Therefore, it's not like we're going to suddenly enter some new universe once Roe is overturned. I don't know

if you agree with that, with that frame. I don't know if I do either. It's just sort of a sentiment I've heard out there. I mean, it's kind of a yes and no type of thing. So obviously, the reality is that there are a lot of states where there's already only one abortion clinic and like a couple thousand abortions happening every year. So it's pretty close to a world where Roe doesn't exist if you're in Mississippi or Alabama. On the other hand, I think it's a big difference if, you know, Alabama wants, what Alabama wants to do in a post-traumatic world is to make abortion a felony punishable by like 99 years in prison. So there's going to be zero abortion clinics in Alabama if that happens. The other reason it matters is that, as I mentioned,

the end game is to go to the Supreme Court that's this conservative and say abortion is unconstitutional. There's no way you're going to get that if technically there's a right to choose abortion. Like then that's mutually exclusive. You can't, that and a right to life are mutually exclusive. And that's what, I mean, so you need to have a decision formally saying Roe v. Wade is dead to get to that next step of saying abortion is unconstitutional. And that's, you know, I don't know if that's going to happen. I'm not sure if that's going to happen. But I think with the Supreme Court, it's not out of the question. And so I think that's another reason it matters. And it probably also matters to states like Florida, right? Florida is one of the states

with the highest rates of abortion and the highest numbers of abortion, but it's a purple state. And so things like the Supreme Court signaling, you know, it's go time to Ron DeSantis might make a difference because in Florida, you know, Republicans are not as sure what to do as they are in places like Alabama that are more homogeneously opposed to abortion. So I think that there may be those sort of in-between states that will care more if Roe is gone. And we may see bigger swings that are more consequential too in terms of people who are in places like Alabama when they're getting abortions, guess where they're going, right?

They're going to these purple states in their regions like Florida. Right, right. They're driving a couple of miles. I mean, if you live in the center of Alabama, that means you have less access than if you live on the border. But yeah, we're not gonna start checking cars on the border to make sure

people aren't getting abortions, or I don't know, maybe we will. But it really is interesting, again, that like, you know, Texas is often described as being a purple state or a future purple state, because it has these, you know, extremely deep blue pockets that are extremely populous. And, you know, the state is those parts of the state are growing faster than the rural areas, et cetera, et cetera. And, you know, I just saw some reporting today that like, oh, Ron DeSantis maybe doesn't want to do an SBA style bill because he's worried about the impact. You know, they have to consider that in Florida about galvanizing the opposition. And in Texas, they might have they might have done that. It is interesting that that law

happened in Texas and not in a place like Alabama where the Republican leaders are a little bit more protected. Yeah. I mean, Texas is weird that way. I think it has a lot to do with Texas's anti-abortion movement. So within the anti-abortion movement, there are people who identify themselves as pro-life who tend to be in favor of, you know, whatever they can get, basically, whether it's restrictions or bans. And then there are people who call themselves abolitionists. And abolitionists mean, you know, we're going to ban abortion right now. And if that means we're going to break the law and go to jail for it, like, oh, well, you know, we're going to do it anyway. oh, well, you know, we're going to do it anyway. And the abolitionists in Texas have been kind of like a thorn in the side of a lot of the GOP legislators there, because every time GOP legislators try to do anything with abortion, these abolitionist people show up and complain and testify against it and lobby people to vote against bills that limit abortion. And so I think

there was a push on the right in Texas for legislation that did something right now. So I think one way to view this is this is not about what most voters in Texas want. It's about what, you know, the perception about what conservative voters in Texas want and the fact that it was making them, you know, to the extent you say mainstream, but it's making the Texas legislators look bad in the eyes of their most conservative constituents that they weren't doing more. And so they felt compelled to do that, even if, you know, polling data is going to tell you people in Texas probably don't want a ban at six weeks. Yeah. So this law is really aimed at those most conservative or most, let's take conservative

out of it. It's aimed at the most radical activists on the anti-abortion issue and placating them, basically. Yeah, I think that's right. Well, one thing we actually haven't talked about yet is who are who is the anti-abortion movement? Like, you know, who are the you know, who makes up this movement? It strikes me as really interesting that, you know, we have so many social movements that are eventually determined by the Supreme Court where, you know, look at look at same sex marriage. Right. Big, big debate in America. Lots of very entrenched positions. But Supreme Court made a decision.

And now, you know, we're coming up on a decade later. It's like there's a lot less argument about it, right? It's like, you know, the sort of the issue slowly gets sort of put to bed and it stops being so rancorous. Whereas the opposite happened in this case, in the case of Roe v. Wade, where the issue is finally decided and the conflict only gets more extreme. And it doesn't seem like, you know, anyone's going to be convinced a decade from now, similarly. Why is that? And, you know, who makes up this movement? Well, so historically, the anti-abortion movement's been a kind of combination of, it was historically predominantly Catholic, which isn't to say that all Catholics are opposed to

abortion. But if you went far enough back in time, all of the people who were opposed to abortion were Catholic. Early enough on, evangelical Protestants, who were often who we think about when we think about the anti-abortion movement, were not a part of the anti-abortion movement in part because they weren't comfortable with Catholics. Baptist denomination in the world was opposed to what I call abortion on demand until the early 80s, but not, and this is even after Roe, right, but was not opposed to abortion, period. They were with rape and incest and that sort of stuff. And so that only changed in the 80s. So it was in the 80s that you began to see a lot of evangelical Protestants joining the movement, and in some ways kind of dominating the movement. I think probably the face of the anti-abortion movement now is white and evangelical for the most part. And that isn't to say there are not lots of Catholics. There are people who are not white who are opposed to abortion. But the leadership of the movement, I think, is more heavily evangelical than might have been the

case a while ago. And I mean, why are they so committed? I mean, I think in part because of the way our politics work, because at the national level, our politics on abortion cater to the people who care the most about abortion, not to the most people. So a lot of people don't like the sort of thing that's happening in Texas, but they're not voting on that basis. They're not protesting on that basis. They're not organizing on that basis. They're sort of like, well, that sucks. And then they move on with their lives. Whereas the people who care really passionately about this, that's the only issue they vote on. You know, they'll vote for people we don't like, don't respect, we're going to screw them economically. And like, that's fine as long as they have the right position on abortion. So that's what politicians are trying to do. They're trying to cater. And I think on the other side too, if you're trying to be fair about it, you know, Democrats are catering to the most pro choice people because those are the people who are going to vote based on that, right? So that means we have a sort of weird zero-sum debate where we could never have a

settlement like what you see in Europe, for example. In a lot of European countries, abortion's pretty available and even paid for for the first 12 weeks of pregnancy. And then after that, you have to have some kind of health justification. That would probably work for a lot of Americans because that's roughly tracks when most people think when approval of legal abortion is the highest and when people actually have abortions, right? Especially if there were exceptions after that for like health threats and situations like that. No one is ever going to see that happen because no party is going to support that. So that's part of it. Our party politics are weird. And to some degree, as I mentioned,

too, it's that we have a lot of white evangelicals and that the white evangelicals we have have become increasingly powerful in the Republican Party in ways that they can call political shots. So why? And look, I know you're a legal scholar and maybe not a sociologist, but I'm curious why, if you have any view of why white evangelical opinion on this would have changed over time. I mean, I understand, you know, someone says, hey, it says it in scripture and that's my religious belief. But to the extent that, as you said, the religious beliefs of that group have changed or the beliefs about abortion in that group have changed. Why why would that happen? Apart from, I guess, more more comfort with Catholics.

But, you know, if if white evangelicals are pounding the pulpit right now saying, you know, abortion is murder and they weren't 30 years ago or weren't maybe 40, 50 years ago, why would that why would that be? or weren't maybe 40, 50 years ago, why would that be? Well, I think some of it, so there isn't much in scripture on abortion, right? That's part of the reason it was sort of open-ended. And I mean, some of it was just as simple as, well, there were two things. One was that there were specific individuals who deserved the credit, right? There was a minister from Missouri who did a lot of lobbying to convince Southern Baptists to oppose abortion. The bigger thing I think was that a lot of lobbying to convince Southern Baptists to oppose abortion. The bigger thing, I think, was that a lot of evangelicals in both the North and the South just didn't like Catholics. And that was really what was holding them back, that they thought, you know, if this anti-abortion movement thing is a Catholic movement, we should probably be

against that because Catholics are kind of gross, so we're not going to do that. And I think over time, especially during the Ronald Reagan era, it became clear to conservative Catholics and conservative evangelicals and conservative Mormons and conservative Orthodox Jews and other conservatives of different faiths or no faith at all, that if you could overcome these sort of denominational and religious differences, that you could create a much more powerful political coalition. So eventually, I think Catholics and evangelicals who had been mutually sort of suspicious of one another

just got over it because the benefits on the other side were so great. Wow. The sort of, is ecumenical the word? What's the word for when religions come together across faiths and chat? But doing that in the service of conservative orthodoxy, that's really interesting. I hadn't thought about that. Wow. Thank you. That is incredibly

helpful to get the scope of it. Well, I mean, let's just return again to where do you feel that things will go in the future, right? You again feel again, feel that Rovers is a way, but we'll be overturned. I'm sure that there are folks listening who, you know, are a little bit stunned and maybe feel hopeless by that, you know, that that, that conclusion where, you know, where do you feel that things will go and where, where should people be putting their energy? You know? I mean, I think in the short term, probably the most important thing to focus on is on state legislatures.

I think especially if you're listening to this and you consider yourself a progressive, you probably don't know or care much about your state legislature. Conservatives have been way better at playing that game in recent decades than progressives have. And if Roe is gone in the short term, unless we're talking about reforming the Supreme Court or whatever, most of the action is going to be at the state level. That's true if you live in a swing state where it's not clear what your abortion policy is going to be. It's true if you live in a conservative state, because

conservative legislators are going to need to have some kind of reason not to include like the morning after pill or not to punish people who have abortions if they're not going to do it. And it's even going to be true in progressive states, because progressive states are going to have to think about whether they want to pass laws that make it easier for people out of state to come to their state to have abortions. So, you know, getting informed about state legislatures in your state, you know, knowing who you're voting for, actually organizing to do something about those elections if you're volunteering. I think even protesting helps because to some degree, all these people may be telling you they don't care about politics, including the Supreme Court, but we have lots of reasons to

think that isn't true. And probably the biggest thing is just to remember, like, this isn't going to be over if the Supreme Court is deciding Roe is gone. Because of course, we know in 1973, that Harry Blackmun, who wrote the Roe opinion, had all this stuff in his papers, essentially saying, we're going to write this opinion, it's going to be done, right? We're going to settle the abortion debate, it's going to be great. And here we are 50 years later, still talking about this. So I have a feeling, you know, Clarence Thomas is going to coffee with people right now saying, guys, it's going to be great, we're going to settle the abortion debate. And we know how that movie ends because we've seen it before. So if that's something you don't like the sound of, you shouldn't feel, you know, powerless because we've seen when the shoes on the other foot, how that goes.

Right. So you can do the same kind of thing where you can protest on the streets, you can organize, you can lobby, you can vote, you can donate money. And there are a lot of ways that that would make a difference. Yeah, it's been a recurring theme on this show that there's so many issues and conflicts that are framed to us as, well, once this happens, it'll be too late. But in reality, you know, the struggle never ends, whether it's climate change, whether it's abortion rights, whether it's whether it's anything else that we're, you know, we'll wake up on that day, and there'll be more battles to fight and, you know, more progress to make. Well, Mary, I can't thank you enough for walking us through all this. This is this has really helped me understand the issue a lot better. Yeah. Thank

you so much for being here. Yeah, my pleasure. Well, thank you once again to Mary Ziegler for coming on the show. If you want to pick up her book or the books of any of our guests, remember you can go to our special bookshop at factuallypod.com slash books. That's factuallypod.com slash books. I want to thank our producers, Chelsea Jacobson and Sam Roudman, our engineer, Ryan Connor, Andrew WK for our theme song, The Fine Folks at Falcon Northwest for building me the incredible custom gaming PC that I'm recording this very episode for you on. Uh, you can find me online at Adam Conover or Adam

Conover.net. And if you want to send me an email, you can send one to factually at Adam Conover.net. And I do try to read all the emails you send because I do enjoy hearing from you. That is all for us this week. Thank you so much for listening, and we'll see you next time on Factually.