Plain English with Derek Thompson - The 300-Year History of Abortion in America—in 30 Minutes

Episode Date: May 6, 2022

Sometimes, people ask “why study history?” How about this: American history is the weapon being used to strike down Roe Vs Wade. In the leaked draft of the Supreme Court decision that would overturn Roe, conservative Justice Samuel Alito writes that Roe invented a right to abortion that cannot be found in early American history. Is he right? And what’s the true history of abortion in America? That’s the subject of today’s episode—a fast, factual guide to how we got to this moment, reviewing the 300-year history of abortion in America in just 30 minutes. Today’s guests are two historians of abortion in American—Mary Ziegler, a visiting prof at Harvard, and Karissa Haugeberg, assistant professor at Tulane University. If you have questions, observations, or ideas for future episodes, email me at [e-mail]. Host: Derek Thompson Guests: Karissa Haugeberg and Mary Ziegler Producer: Devon Manze Learn more about your ad choices. Visit podcastchoices.com/adchoices

Yo, Rob Harvilla from 60 Songs That Explain the 90s here to inform you that we are back with 30 more songs because the 90s were super long and had a ton of rad music. Please join us every Wednesday for more 60 songs that explain the 90s only on Spotify. Today's episode is about the story of the moment, the leaked draft of a Supreme Court decision that would overturn Roe v. Wade. And that leaked opinion is very interesting for a few reasons. The author, Conservative Justice Samuel Alito, writes that Roe was deeply flawed because it invented a right to abortion that you can't find in the Constitution, or even in the period when the Constitution was written in the 1700s. And strictly speaking, he's right. If you read the Constitution, you're not going to find the word abortion in there. You also won't find the word ovary or woman. You won't find anything about gender. So sometimes people say, why study history?

Well, today, American history is the weapon being used to strike down Roe versus Wade. Like, if you want to know why the Supreme Court might be poised to overturn Roe in the single most important decision in decades, I would argue that what you're really interested in understanding is history, the history of abortion in America. And that is the subject of today's episode. What I want to do is offer a brisk factual guide to how we got to this moment, a 300-year history of abortion in America in roughly 30 minutes. Today's guests include two historians of abortion, Mary Ziegler, a visiting professor at Harvard, and Karissa Hougaberg, an assistant professor at Tulane University. If you have any questions, observations, ideas for this episode or future episodes, please email me at plain English at Spotify.com. I'm Derek Thompson. This is plain English.

We begin where Samuel Alito begins. In the late 1700s, the United States has won the War of Independence, and our founding fathers are pulling together the U.S. Constitution. There's a key word in that sentence, by the way. Founding fathers. We are talking about a document written by 55 men and zero women. So that's what's interesting. So as a historian of abortion politics, I would offer that there's also a really glaring absence of abortion mentioned in any federal document from this period.

And that's because it wasn't in the imagination of legislators. That's Carissa Haugeberg. She's an assistant professor in the Department of History at Tulane University. And so he's looking for something that would not have occurred. to people in the 18th century. And a lot of that is because abortion wasn't particularly controversial. What do you mean that abortion wasn't particularly controversial in the 1700s? So there wasn't what we would consider to be maybe a movement from the 1960s to protect the

right to abortion. So he's looking for language and a movement that wasn't there, that just simply wasn't in the imagination of 18th century America. The word gender isn't mentioned in the Constitution until 1868. And that's part of those post-Civil War reconstruction amendments. And in the 14th Amendment, it's in regard to voting. It's to ensure that formerly enslaved men have the right to vote. So before that, the Constitution is really pretty gender neutral.

It talks about persons and people. So, again, we're looking for something that we're not going to find. if we're looking for evidence of the right to abortion being needed in order to experience equality or liberty in the 19th century or before. Let's pause the tape here for a moment. So in the 1700s, abortion was socially frowned upon, but it wasn't typically illegal, and it wasn't talked about very much either. Justice Samuel Alito is what people call an originalist.

That means he's a jurist who cares about what the Constitution's authors might have been thinking at the time. But Carissa Hagerberg's point is, they weren't thinking about abortion because abortion wasn't in the mind of any legislators anywhere. Abortion was something that happened outside the scope of law entirely. Now let's move from the 1700s to the 1800s. Alito points out in his leaked draft that throughout the 1800s, more and more states started to make abortion a crime, and he's right. But it's important to understand how abortion became a crime. And to do that, we have to understand a fundamental idea called quickening. At the nation's founding, abortion was not illegal, was not considered criminal if it occurred before quickening.

Quickening being the moment a woman tells people that she has felt the fetus move in the womb. And again, this is, technology is really important to this entire story. There were no ultrasounds. There was no such thing as a pregnancy test that one could take. So the public depended on a woman asserting whether or not she felt the fetus moved. So women had an incredible amount of control over how the public viewed her decision to have that abortion or not. These abortions before quickening were sometimes called restoring mencies. And historians don't have to work hard to show that this happened all the time.

Popular magazines, newspapers, advertised all sorts of. sorts of powders and herbs and products that women could take to restore their menses. Like, that's how uncontroversial it was. The only time that individual states got involved and had criminal investigations or even a prosecution were those post-quickening abortions, and in almost all cases, the only reason the state knew about the abortion was because the woman had died. This is 19th century medicine we're talking about here. Modern surgery was still decades away. That means that many laws designed to criminalize abortions were primarily intended to criminalize quacks, charlatans, male doctors who were killing women. And so, again, it wasn't, the motivation wasn't to protect fetal life.

The motivation wasn't to punish women for exerting this choice. Those early laws passed in the night, 1810s, 1820s, 1830s were all about protecting women from dying. So the 19th century anti-abortion movement wanted to spare women from dangerous doctors. That seems very different from the modern anti-abortion movement, which is more focused on saving the life of the fetus. Is that right? Exactly. So how did we get from this period where the motivation was to protect women's health to it being more punitive? And the reason for this change, there are a few different things that go on, but one is the formation of the American Medical Association in 1847. Physicians were trying to, they were in a very crowded marketplace,

and they were jockeying for business with midwives and these quacks. And they saw very early on that there was a lucrative market in OBGYN services, because if they could get pregnant women, they would get the business of their children and their families. And most women in the 19th century gave birth to a lot of babies. And so part of the establishment of university-trained and licensed physicians as the go-to people was to depict other people as being unsafe. And so this one very prominent physician with the AMA, his name is Horatio Storer, went on this barn-burner tour across the United States, talking about how dangerous abortion was

and how selfish white waspy women were shirking their duties as good mothers and good wives by seeking out abortionists. So it's a two-pronged campaign. One, depict midwives as being dangerous and dirty and untrained. And two, excoriate white women, white Protestant middle-class women for seeking out abortion services. Let's review what we've learned so far. From the 1700s until the mid-1800s, abortion might have been socially unacceptable in some corners, but it wasn't illegal in most states. That really changed in the middle of the 19th century. Abortion law started popping up, but interestingly, they weren't about protecting the life of the unborn fetus.

They were about punishing doctors, or at least about punishing quacks. In fact, the American Medical Association was a part of that movement. They were against abortion, in part because they opposed the midwives and the untrained abortion providers who competed for their, the doctor's, services. So that's the state of abortion in America in the 1800s, a wave of criminalization that's much more about the profession of medicine than it is about women. And for decades between the 1860s, the Civil War, and the 1930s, abortion existed in an uneasy compromise. Across the country, abortion was typically illegal, and across the

country, abortion was very common. And in the 1930s, that landscape changed because of the Great Depression. That's Mary Ziegler. She's a visiting professor at Harvard University and the author of several books about abortion, including the forthcoming dollars for life. Many more people were using contraceptives. Companies like Trojan became economic powerhouses. There were condom machines in locker rooms, and demand for abortion soared. And this made it hard for this kind of uneasy compromise, which was that essentially abortion would be criminal and no one would push for it to be decriminalized. And yet lots of people would have abortions. It made harder for that compromise to last because people were having abortions at high rates. Some of those abortions

weren't safe. Rates of maternal mortality were still really high. And there were lots of people, particularly people of color, ending up in the hospital with sepsis and other complications. And so this made it clear that abortion was common. And it precipitated a crackdown in the 1940s and 50s. You began to see prosecutors going after abortion doctors who were not performing unsafe procedures, launching raids and stings and trying to entrap people who are performing abortions, comparing abortion to vice, like gambling and prostitution. So let's take those early tendrils of the abortion reform movement and bring it into the 1960s, nearly 1970s,

just before Roe v. Wade is decided. What's the most important thing to know about the years just before that landmark decision in 1973? I think there are, I think, two pieces, right? One is what does the pro-choice or abortion rights movement look like? And the second is, what does the anti-abortion or pro-laportion it looks like. So I'll start with the first. The approach waste movement before O is complicated, right? It involves people who are concerned about public health, right, who are pointing out

that people are still dying due to illegal abortions. It involves some more, sometimes more unsavory characters, people who are interested in abortion as a way of diminishing local, domestic, or international population growth, some of whom made racist arguments that abortion legalization, would lead to fewer people being on welfare, fewer children being born out of wedlock. There were people who wanted to legalize abortions for environmental reasons because they thought it would mean fewer people who would put fewer demands on scarce resources. And of course, there were feminists who believed that people who could get pregnant, particularly women, had a right to have an abortion regardless of the consequences.

Tell me about the anti-abortion movement that existed in the 1970s. Who were they? And how popular were they? Yeah, I mean, so the early anti-abortion movement was overwhelmingly white and middle class, so that hasn't changed. But it was not, it was also overwhelmingly northeastern and Midwestern. So if you ask like where were the most influential, successful anti-abortion groups, you would probably hear Pennsylvania, Minnesota, and New York. So the movement was was heavily Catholic, and it was politically mixed in its allegiances. So there were people who generally identified as Democrats. They were socially conservative, but supportive of the idea of a kind of robust welfare state. There were people who were fiscal conservatives and segregationists,

but it was sort of a bigger tent politically than it is now. Politically, the views of most Americans for the anti-abortion movement really haven't changed much since the 70s, which is to say most Americans did not like the idea of abortion being a crime. They believed that abortion decisions should ultimately be made by patients and doctors, but they were more supportive of restrictions on abortion. They were more supportive, especially of restrictions on abortion later in pregnancy, and they were more conflicted about the morality of abortion. So public opinion on abortion has been remarkably stable throughout history. This brings us to the big decision. Roe v. Wade, 173. Justice Harry Blackman delivers the opinion for the seven to two majority. The court finds that any

state law that broadly prohibits abortion violates a woman's right to choose violates a woman's privacy under the due process clause of the 14th Amendment. It also famously establishes the trimester rule. First trimester of pregnancy, the state may not regulate abortion. Second trimester, the state can regulate if only those regulations are related to maternal health, and then third trimester once the fetus reaches the point of viability, the state can regulate and even prohibit abortion. I mean, there was nothing really to suggest that the court was out of step with the political climate.

Abortion had not become the political issue with us now, so it would have been harder to evaluate that. But ultimately, I think it was something where the justices could reasonably have believed that most people would support the decision and that we wouldn't be in a position nearly 50 years later where it would be overruled because of a major political campaign.

So after Rovi-Wade, abortion laws liberalized throughout the country, and the Republican Party itself coalesces around an anti-abortion stance. It becomes more focused as a coalition around the idea that we should limit, if not entirely, ban abortions. So I want to fast-forward three years, from 1973 to 1976, when a Republican congressman named Henry Hyde of Illinois introduces what eventually becomes known as the Hyde Amendment. What is the Hyde Amendment and why is it so important?

The Hyde Amendment is a 1976 rider to an appropriations bill for the Department of Health Education and Welter that bars Medicaid reimbursement for abortion. This was important for two reasons. First, it limited access to poor people who were on Medicaid. Second, it was a game changer for Republican's strategies. For years, Republicans thought the best way to fight abortion was through a constitutional amendment. It's impossible to amend the Constitution, as many people know.

And so the Hyde Amendment, which initially had started out as a stop-depth way to limit abortions while the constitutional amendment fight raged on, became a model for how to proceed, which was to say to limit access to abortion, to get the Supreme Court to sign off on those limits, and therefore to kind of hollow abortion rights out from within. And so the Hyde Amendment became an important step in that. It also became kind of an area where anti-abortion groups would test out arguments that would later become part of the picture for other people. So, for example, now we're beginning to see Republicans abandon the idea that there need to be rape and incestic sections to abortion bans. That began in fights about the Hyde Amendment.

So it was much earlier that you saw Republicans saying, okay, there should be. be no rape and incest exception to abortion funding. So often this is sort of an arena where arguments by the movement got kind of worked out before they were debuted in crime time. The other thing that I think is really interesting is that as you just described at first, it seems like Republicans who were against abortion in the 1970s looked to national law. They thought we can change this by creating an amendment to the Constitution. That's a really, really hard road to hoe.

But then you have the Hyde Amendment, which is passed by Congress, signed by the president, and then there's a Supreme Court decision in 1980, Harris v. McCrae, which is a 5-4 decision that upholds the Hyde Amendment. And it seems like that's a really interesting inflection point for the right, because they say, hmm, wait, rather than try to ban abortion through amendments or national laws, maybe the easiest path here is to use the courts. And that might set up the 40 to 50 year campaign through organizations like the Federalist Society to think of the courts as the most important weapon against abortion, not this idea of,

not this sort of shoot the moon strategy of a national amendment. Is that right? That's absolutely right. It was both Harris v. McCray in 1980 in another case called City of Akron v. Accrae Reproductive Health Center in 1983, the McCray case showed the anti-abortion movement that could win in the court. And the Akron case showed that nominations mattered. So Sandra Day O'Connor had been nominated to the court in 1981, and that was much to the chagrin of abortion opponents, who thought she was basically an enemy. But then in the Akron case, O'Connor penned a dissent,

really criticizing Roe v. Wade, and anti-abortion groups looked at this and said, not only can the Supreme Court sometimes side with us, if we get the right people on the court, they absolutely will side with us. And so then the game became not controlling what the Constitution said, but controlling who sat on the Supreme Court. And that was a campaign that was waged by the Federalist Society. It was also waged in parallel by the anti-abortion movement, because it really wasn't until the later 80s that the Federalist Society took the anti-abortion movement seriously. Interesting. And I think in a few seconds, we're going to see how the early seeds of that idea bloomed into the Supreme Court that exists today. But keeping to the 1980s, the Republican Party

is starting to adopt anti-abortion as one of its main pillars. And I want to talk about that evolution on the right by looking at Ronald Reagan specifically. So as governor of California, Reagan signed into law the Therapeutic Abortion Act in 1967, which at the time was one of the more liberal abortion laws in the country. 13 years later, he's running for president on arguably the most explicitly pro-life agenda of any candidate in American history. What happened in those 13 years that we got Reagan moving from a liberal abortion law in California to an explicitly pro-life agenda running for president?

Well, I think a lot of it had to do. Well, there were two things that happened. One was the new rights, so conservative operatives, recognizing the mobilizing the mobilizing potential of the abortion issue, particularly when it came to white evangelical Protestants, who had already been voting, but they hadn't really been voting in lockstep for anyone. And they were upset about not just abortion, but a variety of other things like the existence of the women's movement and LGBT issues and the rise of no-fault divorce and prayer in the schools. And so I think Reagan and his handlers viewed abortion as a way to potentially swing these voters

firmly into the Republican camp. And the same was true of blue-collar Catholics who had conventionally been Democrats, largely for economic reasons. So the idea that Reagan could use the abortion issue consciously to kind of peel those voters away from what had been a Democratic coalition was tremendously appealing to him. And it was made possible again by this new potential group of voters. At the same time, the women's movement and women and people of color in general were having more influence over the Democratic Party, which made it harder for anti-abortion or pro-life leaders to get inroads with Democrats. And so while the pro-life movement was politically divided, it became increasingly obvious that the path to influence was through relying on the right, which made Reagan's job that much easier. Right. I think it's really important and absolutely fascinating that before the 1980 election, there was no concept of a, quote, gender gap in American politics.

In fact, the first mention of gender gap and mainstream media occurs in the Washington Post in 1981, referencing the fact that for the first time in modern history, women seem to vote very, very differently than men in 1980. And since then, that gap has just grown and grown and grown such that today, women, by a large margin, vote for Democrats and Republicans for a wide margin for the last, 20, 30, 40 years have voted for Republicans. I want to move now into the 1990s. And in 1992, we have another landmark Supreme Court case that is Planned Parenthood versus Casey. What is Casey about and why is it so important in this story? Well, Casey was about, it was a Pennsylvania

multi-restriction law, but it was also about an effort to get re-overturned. Then as now, there was a six conservative justice majority on the court. Many expected the court to reverse Roe. And when the moment came, the court declined that invitation, it partially overruled Roe. It got rid of the part of Roe called the trimester framework, which had essentially said states couldn't regulate abortion in the first trimester of pregnancy and could only really ban abortion after viability, the point at which there was a reasonable chance of survival outside of the womb. Casey got rid of that, but kept the idea that there's a right to choose abortion until viability. And that's really what we're talking about. We're talking about the Supreme Court potentially overruling

Roe. We're talking about overruling Roe and Casey. Casey was also a game changer when it came to how both the conservative legal movement and the anti-abortion movement approach Supreme Court nominations, because it was clear that the old business model, which was essentially you get Republicans elected and you put the right people on the bench, hadn't worked because there were at least three Republican nominees who had voted to save abortion rights. So the conclusion that was drawn was that the conservative legal movement and anti-abortion groups needed much more influence over who was selected. Interesting. That could be on the front end in terms of generating lists.

It could be in terms of campaign finance and spending on candidates. So you begin to see much more vigorous efforts in that regard. So you're saying if the 1970s and 1980s Republicans are beginning to put together this grand strategy of using the courts to overturn Roe and ceding nominations, ceding appointments to circuit courts, the Supreme Court, by getting these conservative justices ready for primetime, 1992 with Planned Parenthood v. Casey tells them, we need to go even further.

We need to go even further to make sure that our nominees, the Supreme Court, are even more slam-dunk bets to overturn Roe, because we can't rely on moderate conservatives to get the job done because they might turn out like Sandra Day O'Connor to be people that, you know, show that they have doubts about Roe, but aren't clearly acting to overturn it. Exactly. And we also see them go all in in lots of different ways. So, I mean,

the conservative legal movement gets much bigger in law schools. Anti-abortion groups begin to work heavily in campaign finance issues to deregulate spending to make themselves more useful to the GOP and also to be able to spend more to get the candidates they want. to be the ones voting on judges. And they begin to push back when Republicans nominate people they don't like. So the most visible example of this was Harriet Myers. When you saw both the Federalist Society and anti-abortion groups essentially saying, well, George W. Bush likes Harriet Myers. That's not good enough for us anymore. We don't like Harriet. We don't trust Harriet Myers. And Myers was eventually withdrawn and replaced by Samuel Lito, who was a very clear opponent of

abortion, a federal society building. And whose name is now on the leaked opinion of doves, exactly. Professor, I want to fast forward to 2016 here, but before I do, I want to ask about something that happens between the 1980s and the 2010s that isn't often remarked on. And that is that the abortion rate in America declines tremendously. Like in 1980, I'm looking at a graph right now. The number of abortions in America was about 29 for every 1,000 women aged 15 to 44. By 2017, that figure had fallen from 29 per thousand to 13.5. That is a 55 percent decline in abortions between the 1980s and the 2010s. Why? Probably the most significant is better access to contraceptives. The United States for a long time was famously terrible compared to other developed countries in terms of access to effective

contraception, so much so that the leading contraceptive for quite some time was sterilization. So as that changed, you began to see fewer people having unplanned pregnancies, particularly adolescents. Abortion restrictions probably had some effect as well. As states began passing more and more abortion restrictions, there are some people who would probably have preferred an abortion, who carried pregnancies to term. So I think it's a combination of those things. together with some stigma that surrounded abortion that may have discouraged individual people from pursuing it. So a combination of more access to contraceptives and more stigma, in addition to potentially, more recently, state laws that make it harder to access abortion clinics.

I want to move to 2016 now. So Justice Anton Scalia dies, Republicans famously blocked the nomination of Obama's pick for the Supreme Court, Merrick Garland. Brett Kavanaugh becomes a justice after Trump wins the 2016 election. And then in September 2020, Ruth Bader Ginsburg dies and Amy Coney-Barritt becomes another Supreme Court justice. What is the significance of this moment when Barrett joins the court and Republicans have their conservative supermajority? The significance was that there is now an insurance policy. So if there was a moment like there was in 1992, when a justice changes his mind or has second thoughts, which seems to be happening with Chief Justice John Roberts, that no longer matters because there's now an insurance policy in the form of Amy Coney Barrett who can still vote

to reverse row. So it creates a kind of bulletproof conservative majority to get rid of abortion rights. Let's talk about this decision then, or at least the leaked draft of Samuel Alito's decision. Let's assume that the language that we read in Politico is directionally correct, although as the announcement from the Supreme Court said, this is not exactly the final draft. What is the legal reasoning here? And how broad is the condemnation of not only Roe, but also the bedrock of privacy rights on which it's been based? It's extremely broad. So the logic that the court has in the decision essentially is that at the time the 14th Amendment,

which is the relevant constitutional provision was written, there was a clear trend in states that were criminalizing abortion. And in Alito's count, that would be early as well as late in pregnancy. And Alito reasons that if that's true, there could not possibly be a constitutional right to abortion because states were criminalizing it. That logic obviously applies just to things beyond abortion. So it was in the late 19th century that sodomy laws, criminalized same-sex intimacy were being passed and enforced more vigorously. It was in the late

19th century that Congress criminalized contraception in some form of sex education through the Comstock Act and that many other states passed their own rules criminalizing contraception. It was certainly the case that states at the time criminalized interracial marriage. There would have been unthinkable that a same-sex couple could get married. And that's just the beginning, right? The draft tries to respond to this by saying, well, abortion is different because abortion involves the taking of a fetal life. But that's not a potentially uncontroversial conclusion either, because we know that the anti-abortion movement has already asked and will continue to ask the court to hold that the 14th Amendment treats a fetus or unborn child as a person, that is to say, someone who has rights to do

process and equal protection of the law. And if that's true, the anti-abortion movement argues abortion is unconstitutional everywhere. It's unconstitutional in California, in New York, as well as in Alabama and Arkansas. And so if the court goes too far in that direction, which is what the draft seems to be doing, then that will open the door to a further push to criminalize abortion everywhere, not just in red states. I know that there's a lot of fear among pro-choice advocates and among Democrats in general that a decision to overrule row will lead to a federal law that bans abortion nationwide.

What do you see as the legal outlook for something like a legislative ban on abortion in America? Well, there's a possibility, obviously, in 2024, if Republicans control everything, they've floated the idea of a six-week ban. there will be challenges to that depending on what legal foundation it has. If it has, if it's relying, for example, on the Commerce Clause, as Congress's source of authority, conservatives sometimes don't like robust interpretations of Commerce Clause power. Congress may rely on the Section 5 of the 14th Amendment, which essentially gives Congress the power to enforce those rights. That may be safer if the Supreme Court has said there is no right to abortion. But if Congress is, in fact, saying there is a right for, you know,

of fetal life, for example, that may be more controversial because the court may not have gone that far yet. So there'll be legal challenges to such a law if it passes. But of course, we're dealing with a conservative Supreme Court that may be quite sympathetic to the idea that abortion should be banned or that a fetus is a person. So the exact fate of those challenges, I think, is up in there. There's obviously so much speculation about abortion access in the South, abortion access in the Midwest, places in America that either have trigger laws that say after Roe v. Wade is overruled, we're going to immediately enact laws that make it harder, if not impossible, to get abortions in clinics today. What are some of the implications of the end

of Roe v. Wade that you think are being underconsidered right now? What are some of the surprising implications of the end of Roe v. Wade that you're looking at? Well, I mean, there are obviously a lot of implications given that no one agrees on what abortion is. So in those states, there may be a lack of access to contraceptives that are viewed as abortifacients, as many are. Some may remember during debate about the Obamacare contraceptive mandate that many drugs were viewed as abortion-inducing drugs like IEDs in the morning after pill may affect infertility treatment, steps of which are viewed as abortion by some pro-lifers. And it's likely to affect blue states as well, because, of course, people will be traveling from out-of-state, which means that clinics in blue states will be more

crowded. It means that doctors in blue states will face at least the threat, if not reality, of legal liability from red states. The same goes for abortion funds and people who donate to them. And that also means there will be legal fights about which state gets to decide what happens. When one state says abortion is illegal in our state, another state it says it's legal in our borders, who gets to decide which law applies and are their constitutional questions raised there? So I think the clearest thing to emerge from this is that this is going to continue to be a mess. It's going to continue to be intensely divisive. And it's going to affect people across the country, not just in the 20 to 26 states that are going to ban abortion.

My very last question to you is about politics, which is very, very difficult to predict, I understand. But do you see any way in which the same way that Roe v. Wade in 1973 galvanized and made more salient the issue of abortion for the anti-abortion movement in America, at the end of Roe v. Wade might have a similar but opposite effect for the pro-choice movement, that it could change the strategy of or salience of the pro-choice movement on the left? Absolutely. I mean, I think that that remains very much to be seen, because we know that there is a large pro-choice majority in America. the question is whether that majority cares enough about this issue to become politically activated. And I think it's really up to the pro-choice and reproductive justice movement to see if they can make

that happen because the numbers are there. It's just whether the political will is too. That's Mary Ziegler, visiting professor at Harvard. That's all we have for today's history lesson. But I want to end with three key takeaways from what I've learned about the history of abortion in America from these interviews. The first takeaway is that, as I said before, Justice Alito writes in his leaked opinion that abortion was just not in the minds of America's founding fathers and also that abortion was typically criminalized

throughout the 1800s. That's all true. But it's true because neither the founding fathers nor the legislatures of America's states in the 1800s spent much time at all thinking about women and the law. Remember, the first anti-abortion laws

didn't go after women. They went after male doctors for killing their abortion patients. Now, of course, there have always been throughout American history, many, many, many people who are morally against abortion. But the history of abortion law in that century is mostly a history of America's legal minds ignoring women's rights rather than inscribing them. The second takeaway is that if Roe v. Weight is overturned, it will clearly represent the

flowering of a Republican strategy first planted in the 1970s. When Republicans realize, soon after Roe v. Wade and the Hyde Amendment, that they couldn't ban abortion by national vote, they plan to limit abortion through the courts. Now, if you're a conservative, you will see this as a smart playbook perfectly executed. If you're a liberal, you're much more likely to see this as an end-around majoritarian democracy, taking abortion rights out of the hands of the people and putting it in the hands of the courts. that either way, the court appears very close to completing a conservative project, an explicit conservative project that began 50 years ago. The final takeaway is that the next few months and years are going to be a mess when it comes to abortion politics. If Roe is truly gone, the geography of abortion access will be wildly

unequal, state-to-state, and the politics of abortion access will become incredibly potent. for years, Republicans have been able to campaign against Roe. In the next few years, and perhaps even in the next few months, it's Democrats who will be able to campaign against the end of Roe. So just as Roe v. Wade helped to launch a conservative movement that is just now achieving its ultimate victory, the end of Roe versus Wade will be its own launching pad. And the spillover effects of Roe will be the subject

of our next episode on abortion. Thank you for listening.