The Daily Beast Podcast - We Need a Pro-Abortion Constitutional Amendment

Episode Date: July 30, 2021

In this episode of The New Abnormal, Kathryn Kolbert and Julie F. Kay, authors of CONTROLLING WOMEN: What We Must Do Now to Save Reproductive Freedom, tell Molly-Jong-Fast not to trust John Roberts and why Roe isn’t enough to protect abortion rights in this country—something much bigger is. If you haven't heard, every single week The New Abnormal does a special bonus episode for Beast Inside, the Daily Beast’s membership program. where Sometimes we interview Senators like Cory Booker or the folks who explain our world in media like Jim Acosta or Soledad O’Brien. Sometimes we just have fun and talk to our favorite comedians and actors like Busy Phillips or Billy Eichner and sometimes it's just discussing the fuckery. You can get all of our episodes in your favorite podcast app of choice by becoming a Beast Inside member where you’ll support The Beast’s fearless journalism. Plus! You’ll also get full access to podcasts and articles. To become a member head to newabnormal.thedailybeast.com Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hello and welcome to another episode of The New Abnormal. I'm producer Jesse Cannon, and this week, Molly and I are taking a much-needed vacation. But that doesn't mean we're not going to bring you more content. Today we have Catherine Colbert and Julia F.K. Colbert is actually the person who argued Planned Parenthood v. Casey in front of the Supreme Court and Kay was instrumental in the legalization of abortion in Ireland. And they've now written a book called Controlling Women, What We Must Do Now to Save Reproductive Freedom. We're going to talk to them all about that today. Molly and I will be back with our regular scheduled episodes next week. Hi, you guys. Welcome to the new abnormal. Thanks so much. It's great to be here. So explain to me what was the impetus behind writing this book. The major impetus is that we saw that the right to choose abortion and a whole wide range of other reproductive freedoms were in severe jeopardy. We'd never been in such dire straits. And we believe that a new strategy is necessary, that the same old, same old.

that we've been at for the last 40 years isn't working, and we need to think differently and more broadly about how to proceed. So what is the strategy? Well, the strategy is multifaceted. The major point is that the right wing had a 50-year strategy. They didn't just think they could do everything in one year or two years or five years. They thought long term. And we need to do the same. So we need to be able to, most importantly, take back our political institutions, the state legislatures, the state courts, the Congress, and make sure that those who support abortion rights and reproductive freedom more generally are in power, and that they will use that power to help women obtain necessary health care. I mean, Kitty and I really committed to writing this book.

We were on our way to listen to the Supreme Court argument in March of 2020 in the June medical case. And Kitty and I have been working together for decades and sound ourselves in the same position outside the court, same t-shirt, slogans, lawyers fighting over it. And, you know, we're not getting any closer to getting access to reproductive health care and abortion through this Supreme Court. In fact, we all know we're getting much farther away. This Supreme Court, you know, is foaming at the mouth to take another case and start chopping away at Roe. And Kitty argued Planned Parenthood versus Casey in 1992 and really saved the heart of Roe. And since then, it's been all downhill with women on the margins just not having access to abortion.

And, you know, we thought we have to start telling people that there has to be a broader strategy than save Ro, save Ro, save Ro. So let's talk about the case that's going to come up in October, the Mississippi case. What is your sense of, I mean, a lot of people have said, and I've written about this a little bit too, I mean, it definitely seems like we have three Trumpy justices, right? We have three conservative justices who were preexisting, and then we have three liberal justices. And we've heard, right, that there's been reporting that says that, you know, Amy Comey Barrett is pretty excited to overturn row or whatever that looks like. Do you think it's going to be an overturning of row? Or do you think it's more likely to be a kind of kicking it back to the states, which is effectively the same thing? I think there is absolutely no good to come from this court. I see that there are six votes against us. And whether they so whittle away at the existing law, which is my case in Planned Parenthood versus Casey, or totally overrule it, in either instance, women will be harmed. They will have an inability to obtain abortion services. States will go crazy. to enact the most restrictive laws. So it's only a matter of time before the current law goes away

and all of the game will be either in the states or in Congress. We have to stop believing that the courts are our friend. I have to tell you, there are all these pundits that say, oh, you know, Justice Roberts not going to do this. Well, he will do this. He's a conservative who've been anti-abortion for years. He has, in the last couple of cases, been more moderate to preserve the integrity of the court, but I have no doubt in my mind that at least in this case or one soon thereafter, what we now know as federal protection for reproductive choice will be either so whittled away as to be meaningless or no longer available. Are you surprised at how incredibly shitty that New Texas abortion law is, which is really some one of us needs to explain it for the audience

because it's just shockingly dystopian. It's shocking in a way, but it also is not surprising because it basically shows how fervent anti-abortion politicians are and how emboldened they are from four years of Trump. But even more of that, having the people who are supporting reproductive choice settling for way too little. And so the real shocker in the latest prohibition to come out of, Texas is not necessarily that it tries to ban abortion so early on at six weeks, often before

people even know that they're pregnant, but that it allows anybody. I mean, any person walking down the street can bring a suit saying that somebody violated and had an illegal abortion, and that's bonkers. It's like a Shirley Jackson story. It's just, there's just, let me just go back, though, and say the other side, those who oppose abortion have been remarkably creative over the world, over the years, in finding ways to make our lives miserable. And this is just one extreme example, but not surprising. And the more surprising thing in my view is that, A, it hasn't gotten more press and attention. And B, there was no organized

resistance to its passage. And I think that's what we're saying in this book is that we need to be much more, we need to fight like crazy, like what's happening around voting rights, when these kinds of efforts happen in the states and bring attention to what's going on. Because really what they're doing in this law is making sure that women who live in states where abortion is banned going forward will not be able to get help from other people to obtain abortion services, particularly through medical abortion. Right. I am surprised that there wasn't. more pushback to the Texas law because it really only got any PR because of the Times wrote about it a month later, but it passed in May, right, or six weeks ago. But is there someone who is challenging that law?

Will it get kicked up to higher courts? It will get kicked up to higher courts. I mean, Kitty helped co-found the Center for Reproductive Rights. That was where I cut my teeth as an attorney. They do excellent work. There are a lot of great lawyers on this. But I think this also goes back to your question, what to expect from the Supreme Court, like that ship has sailed for abortion rights. We are already in a position where so many women are not able to access services and quite deliberately. I mean, the Hyde Amendment continues to be in place blocking Medicaid coverage for poor women. And we all saw in the past year with the pandemic of how horribly inequitable access to health care is.

Well, in abortion access, that's exactly the same thing. You know, women with money will always have more choices than women without. the number of women of color whose access to abortion is impeded is really disproportionate. Similarly, teens have to go through extra hoops, women in rural areas. So even if the Supreme Court were not as hostile as it is now, we've been in bad shape for a long time. And so in some ways, I'm not surprised that Texas didn't get the attention. We've gotten used to being beat down. And a lot of what motivates Kitty and me to get out there with our stories of the past and the future is that the present is just not

acceptable. Do you think it's interesting? I mean, I think one of the ways in which the right has been victorious and it's sort of insidious and something that we don't talk about enough is the way in which abortion and birth control are no longer covered much in the mainstream media. That's right. I think there's this weird thing that mainstream media believes this is a quote unquote controversial issue and that you have to point out both sides. To me, that's insidious. Because, of course, one side is in support of a constitutional right that's been recognized for 40 years. And the other side is just trying to tear that down. And I just don't see how that's equal. But more than that, I think that because it's considered controversial, they just would prefer not to talk about it.

And by not talking about it, it means that the antis get much more play at the state legislative level because no resistance is covered. I think there's also what we call abortion fatigue, and I saw this a lot in Ireland well before the referendum there to legalize abortion. People want the issue to go away. It's a very common medical procedure, but one that people don't think about until it's in their lives sometimes. And I think what we're acknowledging and sort of titling our book controlling women is that there's really a lot more underlying the issue than actual needing an abortion. It's about what you think about rules of gender and women's rights and, you know, that seems like a Shirley Jackson short story, and we're all really familiar with The Handmaid's Tale at this point. And so I think what we need

to do as a movement is to bring this issue into our call for gender equity and for racial equity. And, you know, Kitty and I looked a lot at the Black Lives Matter movement, at the same-sex marriage movements, and how people were demanding their rights in a way that we've just gotten too passive around abortion rights. And so part of what we propose is what we call a gender equality or gender equity amendment where we really want a constitutional amendment that's going to be much stronger than the privacy rights that form the core of row and really look for something more permanent and long-term strategy as well as we talk about a lot more sort of feasible, easily obtainable or more realistic,

short-term solutions, but I think in the end, we really do need to put something in our Constitution that recognizes gender equity. It does seem like abortion is, I mean, I know they're with caveats, but abortion is actually quite popular, right? The people feel that you should be able to get an abortion, right? You know, 60, 70 percent supports some kind of, it's maybe more. Most of America supports a woman's right to choose with what caveats for sure. And it's shocking to me that it's treated as such a controversial issue and also that it's used as such a wedge. But I know it is. And it just strikes me as a very tough time.

You know, I almost wonder if the first thing we should be doing is trying to get people to talk about it more. Well, I think you're right. We need to do that. I think we need to talk about it more. and we need to be more aggressive in our resistance to all of these horrible laws that are being proposed at the state level. Because that's where we have an opportunity, A, to focus attention on the issue. B, that's where all the bad stuff is happening. And C, that in good states, in the blue states, in places where we have a majority,

there's an opportunity to make real positive change either by passing omnibus, laws are repealing restrictions that are on the books that can really make a difference for women in those places. The thing that I wrote about recently, which I was sort of shocked by, but it seems to be the next move in this, is birth control. Do you want to talk a little bit about that? You know, my view is we need to have the pill be over the counter. That's one of the things we propose in the book, and I think that over the long term will help expand access to birth control. There's been a number of moves by the Biden administration to take out the gag rule, for example, that's all helpful. But the reality is both sex ed and contraceptive access are key to reducing unintended pregnancy, which is at the heart of this issue.

I mean, the real question is, do we think we want more abortions? Well, no, we want a circumstance in which women aren't facing unintended pregnancy. The only way to do that is to include sex ed in every school in America and make that comprehensive and value free and make sure that all people have access to contraception. Free, in my view, is easily available all the better. And, you know, I think we have had tremendous medical advances around contraception, in particular with medication abortion. and it's really important to acknowledge that even when abortion is not legal or not accessible now, medication abortion provides a safe alternative and that some women are going to take charge and self-induce their abortions.

They're not going to be able to travel. They're not going to be able to afford to take days off from work and find child care for their kids and travel out of state. And so they are going to order abortion pills through the mail. In some cases, it'll be legal, in some cases it won't. And we have to be very realistic that our movement needs to support women who are seeking to self-induce and make sure that they're not prosecuted, that they're not discriminated against in a way of that prosecutions tend to happen. It's largely women of color and women who are on the margins who become really subject to prosecution, either for self-inducing or for a suspect miscarriage and those kinds of things. So we are entering a new error where there are better and safer contraceptive methods that need to be made available,

but we also have to realize that medication of abortion is something that needs to be made much more accessible to a broader group of women. The irony here, of course, Molly, is that in the days before Roe, women weren't prosecuted under most of the statutes that banned abortion. But as we can see from the Texas law, the intent there is to really bring women into the mix. and accuse them of crimes when they go ahead and self-aboard. And that's really a big problem, not only for those women, but for the rest of us who have to stand by and be afraid of helping women exercise their choices. Do you think that some of this is a reaction, like the sort of irony of a Donald Trump presidency, right, this thrice married adulterer, that he sort of normalized a kind of misogyny

that we hadn't seen normalized with Republicans, you know, just like he normalized racism in a way that we hadn't ever seen before, or at least we hadn't seen since the 50s, that he's sort of normalized misogyny in a way we hadn't seen since the 50s? Absolutely. He's certainly emboldened the right. I mean, we've never had a president who has just spoken at the March for Life and done all these things and both, you know, it's not even a dog whistle with the anti-abortion groups for him. He's all in. But, you know, like everything Trump, I feel like he brought out the worst and grew it. He didn't create it.

And so when we're looking at where we are now, you know, almost 50 years post-row with abortion in this country, I can't give him all the blame slash credit. And I think that, you know, equally when we saw in the past year through the pandemic around access to health care has been the reality for people of color in this country forever. And so when we're looking at how did abortion get chipped away and also, the right to be a parent. I mean, a lot of times the reason somebody picks it to have an abortion is because they can't support the family they have now, and it's a socioeconomic issue for them. And so as a country, we really do have to come around to looking at what are we doing about

child care? What are we doing about paid leave, maternity coverage, those kinds of issues that the reproductive justice movement has really focused on as part of a whole reproductive freedom approach. It is about abortion, and our book is very much about abortion, but abortion within the context of reproductive freedom, and how do you really bring both gender equity and race equity together at the same time? So, Molly, let me, I would answer that slightly differently in that I think that what Trump did not is not only emboldened the right, but he gave prominence to this kind of heterosexual white male tyranny that is intended to let the most obnoxious women-hating people be at the top of his agenda. And so, you know, like Trump was bad in so many ways.

It's hard to list them all and his racism and his homophobia and his anti-immigration policies and rhetoric were just prominent. But underneath all of that was an understanding that the white guy are supreme. And the women, and particularly black women, are at the bottom of the barrel. And that hierarchy has provoked just unbelievable bad policy at the state level because the legislators, there are grappling with how to enforce that hierarchical status. And it's been institutionalized at the federal level because he left his sludge all over the federal judiciary from the Supreme the court all the way throughout the district courts and things as well. And they're all lifetime tenure judges, unfortunately. Yeah. No, I mean, it clearly is that Democrats have not been thinking

on their feet and Republicans have been just stacking the courts for so long than now we are continually losing rights. And it's just sort of shocking to me. And so, you know, as someone who grew up with a mother for whom Roe was like the crowning achievement of that generation's feminist life to see it in such peril. And, you know, in its imminent demise is pretty rough. But Roe wasn't magic. I mean, it came from the work of your mothers and others of really building state by state, supporting women, getting access to abortion.

And I think that's a lot of what we want to bring us back to now of saying, okay, where are the different building blocks? Where are the different strategies? I don't want to step a 50-year plan because I don't want to wait 50 years, but we do need a bigger, bolder vision. And that's what's going to motivate the politicians that we are going to elect,

not just to say, oh, I'm pro-choice and tick the box, but really to be champions of reproductive freedom, to really recognize that this is an issue about controlling women and how we live our lives and how we join the workforce or have our families. or have our family and the size and timing and who we have sex with. I mean, I think that's a lot of what has been stigmatized and, you know, thrown under the bus through the Trump era as well, of, you know, these personal, private key decisions in our lives

that are being dictated by somebody else's religious beliefs or political beliefs. It is, I think, important to mention that, you know, we still have not passed the Equal Rights Amendment. That's correct. And I don't, you know, in my view, it's very, very difficult to see how that will happen in its current form. One of the things we propose in the book is the creation of a gender equity amendment, which would be more and explicitly broader than the current ERA. But obviously, we support the passage of the ERA. It's going to be difficult to do, given the current Congress and the circumstances on the time limit that was put in the original. amendment. And so in our view, an important thing is to think about constitutional change again

in the long term. It's not the strategy we want today, but it's one we need to start working on and begin to think about language that's as broad as we can possibly make it so that other movements, the racial justice movement, the LGBTQ plus movement, are solidly behind whatever is proposed. Yeah, I think that's right. This was so incredibly helpful. And interesting, for people listening at home, what do you think is something that they, if you're a woman listening at home or a man, what do you think is the thing they can do that would support? So what we say in the book repeatedly is there's no one strategy. There's lots of strategies. And the most important thing is for people at home is to get active and to do something.

Pick the strategy that you are most comfortable with. It could be helping women. it could be working for state legislative change. It could be working on political campaigns. It could be marching in the streets. It doesn't matter so much in the macro sense, which strategy you pick. It's most important that you just do something so that we don't get this resounding dud or thud every time those who oppose our views take action. And do something in collaboration.

I mean, Kitty and I have been collaborating to a pretty extreme extent the past year. or decades, but I think it's really when we work together and do what fits for our community and for people around us and make these new alliances that will build a stronger, bolder movement. Thank you guys so much. Thank you, Malik.

Thank you. On that note, we'll wrap this episode of the new abnormal from the Daily Beast. In future episodes, we'll be talking to smart folks from the Daily Beast and beyond from media, culture, politics, and science. We'll help us understand what's happening to our country and the world.

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