The Bulwark Podcast - Elizabeth Dias and Lisa Lerer: The Inside Story of the Fall of Roe

Episode Date: June 12, 2024

A coalition of Christian lawyers, activists, and politicians methodically and secretly took down Roe, and in the process, outsmarted Democrats who believed they had permanently won on the issue of abortion. And the end of Roe v Wade is just the beginning of an effort to roll back the sexual revolution. Lisa Lerer and Elizabeth Dias join guest host A.B. Stoddard today. show notes: Elizabeth's and Lisa's book, "The Fall of Roe: The Rise of a New America"

landlord telling you to just put on another sweater when your apartment is below 21 degrees? Are they suggesting you can just put a bucket under a leak in your ceiling? That's not good enough. Your Toronto apartment should be safe and well-maintained. If it isn't and your landlord isn't responding to maintenance requests, RentSafeTO can help. Learn more at toronto.ca slash rentsafeTO. Welcome to the Bulwark Podcast. I am A.B. Stoddard with the Bulwark, and I'm fortunate to be sitting in today for Tim Miller, who is on a well-deserved and his only vacation of 2024. I'm so excited to be

welcoming Elizabeth Diaz, National Religion Correspondent for the New York Times, and her co-author Lisa Lair, National Political Correspondent for the New York Times. They are co-authors of a brand new book, The Fall of Roe, The Rise of a New America, and I cannot recommend this book enough to our audience. I told Elizabeth, it is absolutely riveting. It is a page turner. It is essential reading for anyone who wants to know obviously what happened, but about our new America, what is happening and will happen without Roe. It is also an account of how the minority can eclipse a majority. It's about the intersection of politics and the judiciary and an ascendant Christian movement that people should be aware of. It is most of all a stunning audit of the rights of women gained and lost in just 50 years. to start with something they wrote on page 388. When Roe was decided, women could not get a credit card in their own names, could not legally refuse sex to their husbands, lacked guarantees not to be fired if they became pregnant, and did not have legal protections against sexual harassment.

There were no female senators, and the first female Supreme Court Justice Sandra Day O'Connor would not be confirmed for another eight years. Lisa, Democrats were well aware that during the Obama years, they lost nearly a thousand statehouse seats around the country, saw that these trigger bans were being passed. They saw that new restrictions and limits were being passed and that the experts among them, the lawyers knew that these were glide paths to the Supreme Court, that this all was a part of a big design. Yet they were unable to rally their leaders, their donors, their voters to sort of accept this reality. In fairness, though, from reading this account, it's clear that a lot of this flew so strategically under the radar that you had to have a trained ear or eye to know what these nominees were saying

in these confirmation hearings, the code that they were using, that the average American could not interpret. Talk about how this happened, that I think you could read this book and as an American blame yourself for not being awake and aware, but at the same time, it's kind of sneaky. Well, so I think there's a few things that were going on. First of all, I think there was this just profound lack of imagination, as you put it, that Roe could fall, that this was something that had been so in the firmament of American life for two generations. It was just part of the air. And it was something that people just assumed they would have as they planned their families, that it was hard to think that that could suddenly go away. That didn't feel realistic. And that played into sort of the political,

like, energy around the issue for those who support abortion rights. Sure, politicians would get up there and talk about the need to, you know, preserve abortion rights and protect Roe, but voters didn't actually believe it was at risk. So they weren't really that energized around it. We, you know, what our book really does is document the final decade of what we call the Roe era. So all of this action on the anti-abortion side is happening as abortion rights advocates are working on winning over public opinion and de-stigmatizing the procedure. Like you start to see abortions popping up. Remember that movie Juno or his plot lines in Grey's Anatomy. So people thought that this is something that was getting less controversial, that the idea that abortion was controversial was this old political

culture war fight of like their boomer moms or grandmothers. It wasn't something that was current. So it was really hard to see that this was something that could disappear. And it was also really hard to track the rights approach. There was no grand master plan. The plan was to do everything all at once, pass restrictions that could potentially wind their way through the courts in a multitude of states, right? And see what would give them the best opportunity to act. You know, sometimes when you have that many things going on, the details obscure the larger picture. And I think that was both legally strategic, but also like a politically strategic choice that the anti-abortion movement made that obscured some of what was actually going on. I think that you both have made this point in the book and in your interviews that

this was not all zeal and focus and passion. A lot of it was luck for the anti-abortion forces. At the same time, I was so surprised to see how there were dramatic crack-ups inside of Planned Parenthood, this behemoth that's so well-funded, changing its messaging, changing its strategies, even changing its mission at some point. And it seems that what Americans didn't really understand was that, A, this was a battle being fought, not on the front lines of small independent clinics and not at Planned Parenthood, but that Planned Parenthood was essentially losing. I think there was a disconnect between what was happening at the national level

and what was happening at the state level. I think the abortion rights movement was thinking in electoral cycles and was thinking really federally, right? So what can they do to raise money to elect a senator who would support abortion rights while those rights were being shipped away and shipped away until there was almost nothing left, even while Roe was in existence in conservative states like Alabama,

like Mississippi. And it was hard to direct attention to what was happening in those states, particularly when a lot of your donors are in states like New York and California. So there was this disconnect between what people perceived was going on at the national level and what was happening at the state level. And keep in mind that this all really starts to really pick up steam in the Trump era, right? So at a certain point, it does become unstoppable because Trump wins. He gets really lucky and gets those three appointments to the Supreme Court. And then at that point, there's not all that much. If the court's going to go that direction, there's not all that much that the abortion rights movement can do to stop this from happening. And on top of that, you have sort of the chaos of the Trump. I think we all have

like forgotten a little bit just how chaotic those years were. So you had so many issues for liberals who would support, who do support abortion rights. There's so many issues coming at them. There's immigration, there's whatever is going on in the administration, there's all the foreign policy things, there's the Paris climate, of course, there's just thing after thing after thing. And it's easy to sort of forget about Roe and forget about abortion rights, especially if it's something that, as I said before, they didn't actually believe was really the most pressing risk. Elizabeth, I think people who are into politics and following the Supreme Court confirmations of Trump's nominees, and then, of course, the fall of Roe, know about Leonard Leo and the Federalist Society. But the Alliance for Defending Freedom is a big part of this entire effort.

And you guys document this so masterfully, the networks, the pipelines, the money that funds this. Can you just briefly describe those two organizations working in tandem, LEO and ADF? So Leonard LEO is the longtime head mastermind, basically, of the Federalist Society, which is a, maybe the biggest and most prominent conservative organization for lawyers, legal scholars. And, you know, one of his personal main driving forces in his own life, which we talk about in the book, is the anti-abortion cause. It's deeply rooted for him in his own Catholicism and sense of what it means to be human, big kind of theological ideas about suffering. But those are more of Leonard's personal views, the Federalist Society as a whole. I mean, there are lawyers there who were not working to overturn Roe. The Alliance Defending Freedom is a bit different. It's a conservative Christian

legal advocacy organization. And really over the last decade, a little bit more, it's become quite powerful in working to advance litigation that achieves what they talk about as some of their generational wins. These are goals that have the effect of changing American culture to values that are more aligned with conservative Christian values that they want to see in America, right? So they're working to overturn Roe and abortion beyond Roe, that is a primary goal for them. So are things like they talk about defending religious liberty, which often is expressed in limiting what their opponents talk about as limiting rights for gay people, trans people. The effect is really upholding a certain more conservative

value set really about things like sex, marriage, and family. So it's been interesting to document their work because you mentioned this, the pipeline, right? The way that they really organized sort of a whole scale attack on abortion rights, you know, began with planting certain legislation and figuring out what is going to be the best litigative strategy to overturn Roe and then supporting that legally at every phase of the process. So they are a bit newer on the scene in terms of anti-abortion advocacy groups that maybe the public knew. It's a different phase than like the religious right of the 80s and 90s. But they're quite powerful and have many allied lawyers across the country. And Lisa, there seems to be this interesting period, which of course you covered as a reporter

after 2016, where Hillary Clinton loses. It's a huge shock. The Democratic Party is without leadership. And I guess around the same time, Cecile Richards steps down from Planned Parenthood. How much affected that time? And this is a book about a decade, but that time period, how much effect did that have? I think that that time period is really important. In some ways, Democrats were preparing for a very different future, right? They widely expected Hillary Clinton to win. I right? They widely expected Hillary Clinton to win. I mean, most people expected Hillary Clinton to win.

And if Hillary Clinton had won, she would have gotten likely two, maybe three Supreme Court nominations. You know, during the 2016 election, they were thinking about how they could expand abortion rights, right? Rather than thinking about how they would need to protect, right, rather than thinking about how they would need to protect them. And then, you know, Trump wins. It's a huge shock to most of the country, I think even people on his campaign, as we know, and they were just unprepared for this new era. And suddenly Democrats were on defense, not just on abortion, but on so many issues, like everything from immigration to climate change to everything else. And, you know, abortion sort of fell down the list of pressing

concerns. I think certainly in the first few months after Trump won, they were really focused on health care and protecting the health care law. And in the middle of all this, as you point out, Cecile Richards decides to step down. That was a planned thing. She had planned to do it after the election. She stayed an extra year because Trump won and then she was ready to go. And the biggest abortion rights organization was really left fairly rudderless. They had four leaders in a period of three or four years. And it was hard for them to drive a message. And it was particularly challenging because they couldn't drive a message at a time when they were having an even harder time breaking through with their message. So what they decided to do was sort of join forces with all these other democratic groups and sort of approach this from an intersectional perspective and say, well, Planned Parenthood also supports rights for undocumented immigrants and is also involved with racial justice. And, you know, that may have helped abortion get a little bit lost amid all these

other issues rather than carve out their own space. But that being said, had they done that, had they had a more effective political message, would Roe stand right now? Probably not, right? Trump would still have gotten those three Supreme Court seats. So it's a really complicated thing to unpack. Like, could they have had a better political message? For sure. Would that have changed the outcome? It's really hard to say, and I suspect it might not have. Their goal was to find this, you guys say, the legislative sweet spot. And they were looking for a magic number of weeks of gestation that would force the court to reconsider Roe.

And they were looking for a circuit split. Tell us what that is. Yes. It's very interesting to kind of get inside the strategy of what they did. The anti-abortion movement, it's been around for so long, right? It really started when Roe happened in 1973. But for 40 years, the movement was not able to achieve its goal. And so we document in the book kind of what happened over this last decade, right? What were the things that were able to change strategically that really

pushed the movement over the edge? And one of those major pieces that was in play was the idea of, okay, like if how for lawyers at the Alliance Defending Freedom and some of their allies and partners, the question was, how do we undercut the fetal viability line, which is the point at which a fetus may be able to survive outside a woman's uterus, which is usually about 23, 24 weeks currently. And they were thinking, okay, what is the sweet spot, right? Because there had been some laws that states had passed at 20 weeks, instituting a limit at 20 weeks, but the court hadn't actually taken that part up in the other cases. So the lawyers were guessing like, okay, like, what is that point? Is it going to be 18 weeks? Is it needs to be lower, right?

They'd tried 12 in some places that hadn't worked. Certainly the very early bans around six weeks or earlier, right, that those were not actually going to reach the Supreme Court because the Roe standard, that was the precedent. So the idea was, what do you need to do to kind of start to open up that question of, you know, what precedent is valid when our kind of different constitutional for them principles conflicting with each other. So they came up with a plan that was like, okay, not just one plan, it's many, many plans, right, working in tandem together. So it would be passing legislation that was very similar, right, 15-week or 18-week bans in different states across

the country where they had especially conservative Christian support with lobbyists and lawmakers, but then doing those laws in different circuit court regions, right? Because in order to get a case to the Supreme Court, they identified that if they could create a conflict between circuit court rulings, then the higher court might want to weigh in. So it was really this multi-dimensional plan that ultimately ended up getting to the Supreme Court with their 15-week bill. Landlord telling you to just put on another sweater when your apartment is below 21 degrees? Are they suggesting you can just put a bucket under a leak in your ceiling? That's not good enough. Your Toronto apartment should be safe and well-maintained.

If it isn't, and your landlord isn't responding to maintenance requests, RentSafeTO can help. Learn more at toronto.ca slash RentSafeTO. So Lisa, I was fascinated. The pro-life movement was unsure about Brett Kavanaugh and where he would land on Roe at first. And you guys have this incredible reporting about the court gathering to strategize how they would handle the Mississippi case and that he led with a plan. So talk about that. So they met shortly after January 6th. So this was a very sort of heated moment in American political life. And they met to hear, to decide whether they should take up this case.

And part of what had been happening is Mississippi had petitioned the court to hear the case that would eventually end Roe. And they hadn't weighed in. They hadn't said yes. And they hadn't said no. They had sort of sat on the petition and met week after week to decide. And nobody really understood, even the lawyers on both sides arguing the case, nobody really understood why this was going on. Like,

why wouldn't they getting a response on this case? Was the court going to do it? Were they not going to do it? You know, certainly everyone involved with this legal fight knew what the stakes were and that this was the case that could mean the end of Roe and the end of federal abortion rights in America. And so shortly after January 6th, the court meets for their conference where they discuss the cases. And Kavanaugh came up with a plan and he said basically that they would take up the case, but they wouldn't announce it. They wouldn't announce it for several months until the spring. And that would bump the case further out into effectively the next term, give distance from January 6th and allow some other laws and the states to work their way up to the court. And it was the only way he could get the votes. They need a majority of votes on the court to

agree to hear the case. And that was the only way he could get those votes because Barrett had some concerns about hearing it at that time. So they pushed it out. They agreed to do it. It was a little bit of subterfuge that we normally don't see from the court. And that's sort of how it came to be heard when it was heard. It was an unusual process. I was fascinated to discover how stubborn the notorious RBG was, that she, A, thought she believed this right would stand, and then B, that she didn't want to step down because none of us think we're ever going to die, but also that she believed that Obama would replace her with someone to centrist. Talk about that, Elizabeth, in terms of what a critical arc that was in this story, that time period, and that miscalculation. Justice Ginsburg's story, even

beyond that, is just the arc kind of of her entry to Washington when former President Bill Clinton came into office, right? It was the time when Hillary Clinton came to office as first lady. There was so much championing of the year of the woman, right? 1992 and 1993. There was this idea of what kind of liberal female power looks like and the values that that represented. And RBG, you know her her three initials came to represent so much about women's equality abortion rights and as you say in our in our reporting we sort of show even how this sense of denial that roe could ever fall was prevalent even for her in many ways even though she also talked about how she disagreed with the legal reasoning, she would have preferred that the same outcome happened through other cases.

So what's amazing also with her storyline then was that when she dies, you see over the arc of our book and over this time period in American history, the end of the Roe era in American life, that she is the symbol of everything she represented as being replaced by another woman, another justice, a younger generation with three initials of her own, ACB, Amy Coney Barrett. And she really represented and still represents a different vision of womanhood, almost a kind of conservative feminism that we could discuss that term in more depth and what it means. these massive historical shifts, right, that are these generational changes with very significant consequences for, in this case, American women. Lisa, as you look to the next election, I mean, it was fascinating to read about Marjorie Dannenfelser, who's president of the Susan B. Anthony list.

She has had some real twists and turns with Donald Trump. He's the presumptive nominee. He called a six-week heartbeat bill a terrible idea. You have Kellyanne Conway in your book saying that the party is not really the position, the policy position itself, so much as the way Republicans talk about their opposition to abortion. That's a problem with voters. And Donald Trump has basically said to Dan and Felster and everyone else, no, it's actually the policy that's a problem. And that's why he stood up for exceptions. And that's why he wants to tone down any discussion of this. Since you sent your book to the publisher, where does that relationship stand in terms that, you know, he was going to put out a policy recently on medical abortion, and he decided

not to, and it's one of those Donald Trump's that's going to come in a couple of weeks. Where is that relationship right now? I know that they believe they made the right gamble, but that tension exists still, right? Yeah, well, I think Donald Trump is someone who has this, like, sort of innate ability to sense mass politics in a way, Right. And what he's sensing on abortion is that this is bad politics for him. And he's right. Like, you know, support for exceptions to abortion restrictions for rape, incest and life of the mother is a very broadly popular opinion. You know, he's worried, I think, that a 15 week federal ban is toxic, politically toxic. And in part, what that reflects is how quickly the politics changed. I think he also knows that, you know, in 2016,

part of what happened was he needed the social conservatives to support his bid. Other parts of the party, the Republican Party, had fled from him, and he needed to boost his numbers with this part of the base to win. You know, he did it again in 2020. And now I think there's a sense over there that he has these people, that he can stake out a different path on abortion. And it just won't matter that he gave social conservatives this huge victory by appointing the justices who obviously overturned Roe and they'll be with him whether he's you know agrees with Marjorie Danzfelser on a 15-week federal ban or not so the relationship has gotten really complicated and I also think what the anti-abortion movement was unprepared for was how all this would be received in the public like they were not prepared for this mass political backlash

that they've experienced that they had been operating in a world where people really didn't believe that what they said they were going to do was going to happen. And that allowed them some like political leeway in some ways. And they know, you know, to just change their language and it was enough. Now that veil of denial has really been shattered and they don't have that leeway. And so what you see is this very fragmented, splintered anti-abortion movement that's losing some of their supporters in the Republican Party. Like I thought Larry Hogan's comments that he would support the codification of Roe were really interesting. I've looked at the campaigns of seven Republicans and like the seven, you know, the most swing

Senate races, they've all softened their position or reversed their position on abortion rights completely, which really reflects how the politics of this issue have changed. And that is what you're seeing play out in the relationship between Donald Trump and the anti-abortion movement and people like Marjorie Danzfelser. So Elizabeth, what is your sense of the pro-choice side? And as they head into 2024, how unified is this coalition? Yes, they've had all of this success in 2022 in the midterms, in 2023 in special elections. Every abortion referenda has passed favoring the pro-choice side. We don't know how much energy Dobbs is going to carry into the 2024 election. What is your sense of how strong or less weak that coalition is? How much unity there is on their side heading

into November? Well, as you point out, I mean, this is an election unlike no other because for 50 years, the foundation of it in any presidential election, whether you're thinking about it or not, has been Roe, right? The politics as usual is just totally entumbled now. And the way that the issue of abortion and not just the issue itself, the procedure, right? But the sort of symbol that the word represents in the minds of certainly voters about, you know, being a woman, faith, you know, race, pregnancy, all of these things are packed into this issue. And we're seeing in a very new, real way, a different kind of politics, right? So it's a bit hard to be predictive in this. But what we we know is that the abortion rights

movement has been able to capitalize on this issue in a way that they have not before. And it's actually brought a surprising unity to much of the Democratic Party in a way that on other issues is much more fragmented right now. But overwhelmingly, it's why you hear the Biden campaign talking so much about abortion every day, right? We're hearing Democrats sort of hammer the issue, Republicans and Donald Trump were the ones to overturn Roe, that kind of messaging. So in a way, I think while there was more fragmentation for the abortion rights side headed into the overturning of Roe, different factions of the movement, especially through the rising set of activists, mostly of Black and Hispanic Asian women who were

pushing the more, I'm using quotes, but kind of the abortion rights mainstream, the big organizations like Planned Parenthood, et cetera. That's the reproductive justice movement. They'd been calling for a while for change within their movement just because they were seeing vulnerabilities that ended up, of course, leading to the overturning of Roe. I think now because there is such political energy, and it's a unifying issue, that fracturing is harder to see. But it's playing out a bit more, I think, in the lived reality when it comes to clinics and the healthcare side of all of this.

But I would also just add, I think that the right is actually more fractured, right? They were, it's the reverse. They were so unified headed into the fall of Dobbs, but now they're facing these new attacks and you're seeing, and they call themselves the post-Roe generation, right? The side of the movement that is pushing for abortion abolition, right, the complete end of all abortion. They don't favor most exceptions to the procedure at all. That's at odds with women like Marjorie Dannenfelser, who had been pushing for this more incremental approach over the years to achieve change. The Democratic Party, they're campaigning on the idea of codifying Roe. Is that a realistic pitch to sell to voters? Is that doable? I mean, it's really, really hard. First of all, you need 60

votes in the Senate to pass something like that, which Democrats are not going to have. If you don't have 60 votes, you need to change the rules around the filibuster. Also, they don't have the votes to do that. Also, there's no agreement on what legislation to codify Roe would even look like. Right. There's been a number of different they can make good on. It would be very hard to do. The one sort of open question about all this is given how powerful an issue abortion has proven to be for Democrats. I think if Biden is to win reelection and, you know, look, the Biden campaign, they want to talk about abortion rights every single day. And most days they do. They find a way to work into the conversation. So if Biden were to win a reelection effectively on this issue, it becomes really hard not to take this action that you promised. So there will be a different level, I would expect,

of political pressure to do something at the federal level than we've seen really ever before. But realistically, I think what you see is the abortion rights supporters turning to this sort of state by state strategy of passing these ballot referendums in various states where they can to codify abortion rights in state constitutions. And there's sort of an irony here that while they failed to pay perhaps enough attention to what was happening in the states during the Roe era, and it was the anti-abortion forces who really focused on this local and state strategy. It is now the abortion rights advocates who are turning to that. I want everyone to understand what this is a 350 interview, masterful collaboration. I don't know how you did it, but I really admire your teamwork. I want every woman to read this

book. I want everyone to buy this book. If you want to know what good reporting looks like too, you will learn in this book that Mike Pence was married to a divorcee by a gay man after attending a progressive church. You will learn that Kellyanne Conway was the New Jersey Blueberry Princess Pageant and World Champ Blueberry Packaging Competition winner. These women are incredible reporters and they've told such an important story. Thank you so much for being with us today, Elizabeth and Lisa, and congratulations.

Thank you so much, A.B. We really appreciate this conversation. Thank you so much for having us. It's so important. Thanks so much. Tim will be back on the Bulwark Podcast within days. Everyone, thank you for putting up with me today and remember to buy The Fall of Rome. Don't worry about a thing baby darling, man you been dreaming of But three months later he say he won't date or return her call

And she swear god damn it for that man cutting off his balls And then she heads for the clinic and she gets some static walking through the door They call her a killer and they call her a sinner and they call her a whore I got the feeling you ever had to walk a mile in her shoes Cause then you really might know what it's like to have the truth Then you really might know what it's like Then you really might know what it's like The Bullard Podcast is produced by Katie Cooper with audio engineering and editing by Jason Bratt.