The Daily - On Abortion Laws, It All Goes Back to 2010

Episode Date: July 11, 2022

When the Supreme Court overturned Roe v. Wade, the court’s conservative majority argued it was simply handing the question of abortion to the states and their voters to decide for themselves.But in reality, the court was ensuring that many states, from Arizona to Ohio, would immediately ban the procedure without much debate, because their legislatures are now dominated by hard-line Republicans. Today, we tell the story of how those Republican legislators achieved that dominance.Guest: Kate Zernike, a political reporter for The New York Times.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: How the beginning of the end of Roe v. Wade arrived on election night in November 2010.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. When the Supreme Court overturned Roe v. Wade, the court's conservative majority argued it was simply handing the question of abortion to the states and their voters to decide for themselves. to the states and their voters to decide for themselves. But in reality, the court was ensuring that many states, from Arizona to Ohio, would immediately ban the procedure without much debate because their legislatures are now dominated by hardline Republicans.

Today, my colleague Kate Cernicki with the story of how those Republican legislators achieved that dominance. It's Monday, July 11th. So Kate, tell me about how your reporting started. Well, we wanted a big story that would tell people when Roe was repealed, how this happened. And I sort of conceived of it as an obituary, really, for Roe. And if you think about an obituary, you think about what were the key moments in someone's life when something turned. Right. And so I just started asking people, you know, what was the turning point?

And what was so striking to me was that people on both sides of the debate said the exact same thing, which is you have to look at 2010. You know, the abortion rights advocates felt really good. They had more support in the U.S. Congress than they've ever had before. They, of course, had President Obama in the White House. And they started having all these real policy victories, several of them related to President Obama's Affordable Care Act. And on the anti-abortion side, they not only suffered these policy losses in Obamacare, but they also suffered a real blow to their image because around the same time in 2009, an anti-abortion extremist assassinated an abortion doctor, George Tiller, in Kansas as he's on his way into church. So in their mind, as one person said to me, we were dead in the water. We had no movement. So what changes for the pro-life movement after

that to clearly get them back on track? Well, Michael, as I'm sure you remember, the Obamacare debate unleashes a flurry of right-wing activism and helps give rise and fuel to the Tea Party, which is this new right-wing movement that says that they're really only concerned with fiscal matters. They don't care about social issues. They're mad about bailouts. And it's advertised as sort of a taxpayer revolt. And what happens is you have something of a shotgun marriage between the Tea Party, who are these fiscal conservatives, and more traditional Republicans, particularly conservative strategists like Karl Rove, who hatch a plan to use the 2010 midter you know, they're upset because obviously the Democrats are controlling Washington. But they look to the states and they figure out that while Democrats control a lot of these state legislatures, it's only by a really slim margin. If they can pick off three or four seats in some of these state houses, the Republicans can take control.

off three or four seats in some of these state houses, the Republicans can take control. But they also recognize another issue, which is that this is a year that ends in zero, which means there's a census, which means that there's going to be redistricting. So that if they have Republicans in charge of these state legislatures, the Republicans are going to be the ones who draw up the state legislative districts and also the congressional districts. So this is going to be their way back to power through the states and in Washington. Political aftershocks echoed in Washington and around the country today after Republicans scored resounding victories in the midterm elections.

So on election night, this strategy works beyond their wildest expectations. Voters also engineered a change in power in the nation's state legislatures. Republicans swept the state legislatures across the country. With at least 18 state legislatures switching to Republican from Democrat, a net gain of 500 seats. You had some states, even in the South, where it was the first time since Reconstruction

that Republicans had controlled some of these state houses. By the time the dust settled early today, Republicans had scored the largest party turnover in 70 years. This was a huge shift from Democratic control in the states to Republican control. It's just a huge, huge red wave. Right. It's a blowout. It's a blowout. And so, Kate, once this red wave has occurred, what is the relationship between these newly elected Republicans who have flipped all these state houses, a lot of them Tea Party people, and the issue of abortion?

Well, the Tea Party, of course, said that they weren't really interested in social issues, right? They care about budgets. But what happens once they're in power is that these Republicans who are supported by Tea Partiers start to realize that it's really actually hard to cut state budgets. You know, the things you end up cutting are the things people care about, education and, you know, healthcare. I mean, it's just, they learn as all lawmakers do that 80% of the budget is pensions and healthcare, and there's just not that much to cut. So, for instance, in Kansas, you had a Republican governor come in, Sam Brown, back. And with the legislature, he enacts these huge income tax cuts. And he says that this is going to stimulate the economy.

But in fact, what happens is they have a revenue drop of $700 million. I mean, it's just crushing. And you can't operate the state budget that way. Voters become furious. There's a ton of blowback. Right, so the Tea Party is finding that actually putting Tea Party values into practice in these legislatures they just want control of is really hard. Yeah, absolutely. I mean, it's very easy to campaign on this stuff.

It's very hard to govern on it. Mm-hmm. So what do these very frustrated Tea Party lawmakers end up doing? Well, in the states, there's always been a real network of anti-abortion groups, the National Right to Life Committee, Americans United for Life, some smaller groups that are state-specific. But these anti-abortion groups, even though they're not winning, they haven't been passing a lot of legislation in the previous years, they're still kind of chugging away. And they're pitching legislation as they always have.

But what happens in 2010, and now we're in the legislative sessions of 2011, they're suddenly getting a good reception. Bills that used to get stalled in committee are now suddenly like sailing through two chambers and right to the governor's pen, and they kind of can't believe their luck in a way. And why is that happening? Well, you know, the Tea Partiers, as much as they said they weren't interested in social issues, they really are conservative Republicans at heart, and anti-abortion is part of that. So if you look at polls that were done of Tea Partiers, something like 60% of them opposed abortion, thought abortion should be illegal. You know, more than half of them identified with groups on the religious right, which had consistently opposed abortion since about the 1980s. So this was kind of part of their DNA all

along. And what do these bills that the anti-abortion groups hand to the Tea Party state legislatures and they suddenly pass, what do they look like? The anti-abortion people realize they can't topple Roe in one fell swoop. So they pursue a different strategy. And the strategy is one of incrementalism. You know, chip away at what's allowed. And over time, you're going to destabilize Roe. You're going to create this sense that, you know, Roe is not really settled law. So let's take Arizona. In 2010, you have this Republican supermajority that's elected. And they are elected with this Tea Party energy. And these new lawmakers come in and there's a group there called the Center for Arizona Policy that was really founded on opposition to abortion. And they're passing these bills that kind of nobody really thinks are going to matter that much.

So in March of 2011, they begin debating a bill that they claim would prevent abortions based on sex and race discrimination. For instance, aborting a baby because it's a girl, which can sometimes happen in countries like China or India, where there can be a preference to have boys, or a doctor or a mother making a choice to abort a baby because of skin color. Well, how prevalent is that? It's not prevalent at all. I mean, this is not an issue that most Arizonans or most Americans are thinking of or worried about. But it's a way to create kind of this sense that like something bad is going on with abortion, right? Like people are aborting little girls and that's so horrible. And like, why would you be discriminating against girls? And that's awful. And this is what abortion does. Even if it's not really true. Even if it's not really true. And even if this law isn't

actually going to affect that many people, it's all part of the destabilizing strategy. people, it's all part of the destabilizing strategy. Lawmakers are proposing and passing laws that almost feel reasonable. They feel like nobody would disagree with them, but these laws are really about restricting abortion rights. You know, there are things like mandatory waiting periods, which were introduced in many states. South Dakota, which already had a 24-hour delay, increased that waiting period. South Dakota's governor signed a law today requiring women to wait three days after meeting with a doctor before they can have an abortion. It is the longest waiting period in the nation. A bill in Oklahoma was introduced that would require doctors to give very detailed information to women about the choice they're making when

they're having an abortion. Legisllegislation that would require any woman seeking an abortion to hear a detailed description of the fetus, including the size and whether there's a heartbeat or not. Supporters of that bill said it was meant to empower women. The purpose is to give her the choice, to give her the information prior to making a life-altering decision.

These are all designed to look very reasonable. They're designed to appeal to middle-of-the-road Americans who, again, want some restrictions on abortion. They want abortion to be legal, but they want some restrictions. And in fact, what happens is, if you look across the country, by the end of 2011, there are 92 restrictions on abortion, which is more restrictions than in any year since the Roe decision in 1973. 2011 will go down in history as the year where we had the biggest rollback of abortion rights in America since Roe versus Wade.

And in the next three years, the legislature's passed 2,005 anti-abortion laws, and that's more than an entire previous decade. They're churning out these bills in state after state. They're churning out these bills in state after state. They're churning out these bills. Kate, where are abortion rights groups when all of this is starting to very clearly happen in all these states? So the abortion rights groups are caught a little flat-footed by this. They're really focused on the federal level, partly because they're looking to the Senate, because of course the Senate is where you're going to get your

Supreme Court justices approved. But their donors are really focused on federal races too, right? If you're a donor, you want to say, oh, look, I gave money to Planned Parenthood or NARAL, and they're focused on this big Senate race, and we won that Senate race. We've kept this champion of abortion rights in the Senate. They're not really focused in the states. NARAL, for instance, which is this group that's been fighting for abortion rights since before Roe, has cut its number of state affiliates from 40 two decades earlier to 20. So it only has affiliates in less than half the states. So the abortion rights groups really aren't focused on the states or they don't have the money and the infrastructure in their states. They're not there to counter this huge wave that is about to wash over them.

Lobbyists are literally roaming the halls of these buildings. They're talking to lawmakers. And it sounds from what you're saying, the anti-abortion lobbyists are talking to all these lawmakers in these states. But the abortion rights groups, because they've cut their state presence, they're just not there. They're not making the other side of the argument to these lawmakers. Right. The anti-abortion side is reminding these lawmakers that we're going to remember these votes. Meanwhile, the abortion rights groups are kind of not there, and they're not blanketing the statehouses the way the anti-abortion groups have.

So just to summarize all this, Democrats really failed to foresee the red wave that happened in 2010 at the state level. And their allies in the abortion rights movement were, in a lot of ways, equally unprepared for it because they all figured they were in pretty strong shape. They didn't see the Tea Party movement happening. They all took their eye off the ball. Absolutely. So you have this wave of bills being passed, and even though the public consensus on abortion hasn't changed, the public is getting used to the idea that abortion can be regulated because abortion is being regulated in all these states. And, you know, in the beginning, it's not really that much. So it's like, okay, we can have another regulation and everyone's sort of debating the finer points

of all these individual laws. But the reality is you're changing what's acceptable to the public in terms of regulating abortion. But for abortion rights groups, things are about to get a lot worse because Republicans aren't using their power just to pass these anti-abortion restrictions. They're also about to start using their power to lock in their power. We'll be right back. So Kate, what does it look like as Republicans start to, as you said, lock in their power? their power? Well, as I told you earlier, when these Republican strategists were thinking about 2010 and why it could be so powerful, they recognized that this was a redistricting year. So it's a census year, and whoever controls the state legislatures is going to set up these commissions to redraw the boundaries of electoral districts. So this means not only the boundaries

of congressional districts, but it also means state legislative districts. So this means not only the boundaries of congressional districts, but it also means state legislative districts. So the state legislatures are actually redrawing their own districts. So whoever controls this process gets to say what the lines of their district are, who their voters are. And essentially, the Republicans who flipped all these seats, by the end of this process, they've essentially guaranteed that they're going to control these state legislatures for a very long time by redrawing the lines to protect themselves. Right. They are going to gerrymander. Absolutely. And they do it in historic fashion. to Republican control, and you've started to pass laws restricting abortion, and then these districts get gerrymandered, Republicans are not just locking in their own power,

they are locking in anti-abortion laws as well. Right. So you've created a situation where you can't undo the anti-abortion restrictions that have been passed. You're going to pass more of them. And in fact, you're going to pass more of them because what happens in a district that is really red is that the danger for the lawmaker in that seat is that he or she is going to be primaried by someone from the right. So the race becomes how anti-abortion can I be? How many restrictions can I pass? Because it's helping them get reelected and it's helping them avoid primary challenges. Gerrymandering pushes the Republican Party further to the right on all issues, but especially on social issues. So you start seeing anti-abortion restriction

with a lot harder edge. At least 29 states have introduced restrictive abortion bills. So we're no longer talking about parental consent and maybe restrictions on clinics. Now we're talking about banning abortion after 11 weeks or six weeks. The heartbeat bill would ban abortions once a fetal heartbeat is detected. And all of this violates not just the public consensus, but it's an open violation of Roe. Alabama Governor Kay Ivey, a short time ago, signing the most restrictive abortion law in the nation. It effectively outlaws abortion statewide,

even if the pregnancy was caused by rape or incest. Because what Roe said was that you couldn't restrict abortion before viability, which is around 23 weeks. The goal seems to be for at least some of them to make it to the Supreme Court, so it can be a challenge to Roe v. Wade. It's a really brazen attack on the central holding of Roe. So that, I think, brings us up to today, to this point where when Roe is revoked, Roe is revoked, something like 20 states are ready to ban it or have banned it. It's just a matter of days. You're saying that all of this gerrymandering helps us understand why at that

moment, when abortion is handed back to the states, the states are very ready to restrict it. Right. And again, even though it's not necessarily consistent with public opinion in those states, take Georgia, for instance. In 2020, it voted for President Biden, two Democratic senators, but Democratic voters barely made a dent in the state Senate and House. And now with the repeal of Roe, Georgia has a law that passed in 2019 banning abortion after six weeks. So that's about to take effect. And state lawmakers are now saying they want to tighten that. They are ready to ban abortion entirely. Similar situation in Michigan, where there's a hundred-year-old abortion law that's being held off by a Democratic attorney

general and governor, but is supported by the Republican legislature. So the will of the people when it comes to abortion in many of these states doesn't really matter. Right. And if you read the opinion over turning row, what Justice Alito and the conservative majority say is that they want to return the issue of abortion to the states. They want to return it to what they say, the quote, the people's elected representatives, right? But that's not really what's going to happen. That's not realistic because the people's elected representatives are being elected in a system that's stacked. So Kate, when we think

about why 2010 matters, why it is a key moment in what you said was the obituary of Roe. It feels like the answer is the kind of Republican that was brought into state houses around the country that year, their willingness to deliver for anti-abortion rights groups, and their success through gerrymandering in assuring their own re-election and therefore making their anti-abortion agenda something that would stay in place for a very long time. That's how we get to the moment we're in.

That's why 2010 matters so much. That's right. And look, Democrats may have won the popular presidential vote in five out of the last six elections, but Republicans still control 23 state legislatures. Democrats lead 14 and the rest are split. So there's no question Republicans control the future of abortion for now. And that is because of what started

in state legislatures back in 2010. So Kate, if you are a Democrat or an abortion rights group in this moment, I have to imagine you are thinking a lot about states and state legislatures and how to flip the script of the story that you have just laid out here. Absolutely. I mean, if you are a Democrat or an abortion rights group, you're focused on the states by necessity at this point. group. You're focused on the states by necessity at this point. And you know, it's interesting if you go back to 2010 and the Tea Party, they were all telling me that they learned from the left how to organize in state houses and how to get things done.

Now, the abortion rights groups are learning from the anti-abortion groups. They know that they need to go to each state and do what Republicans and anti-abortion groups did, but in reverse. The abortion rights groups need to slowly build a foundation of protection around abortion. And to do that, they need to roam the halls of these state houses. They need to go law by law, race by race, state by state, just the way that Republicans and anti-abortion groups did. Well, Kate, thank you very much. We appreciate it. Thank you, Michael. We'll be right back.

Here's what else you need to know today. Over the weekend, Japanese officials acknowledged that Lapps' insecurity may have contributed to the assassination of the country's former prime minister, Shinzo Abe, who was shot at a campaign rally on Friday. Abe was killed by a 41-year-old man using a homemade gun, who has since told police that he believed Abe was linked to a group that he disliked. Several videos show the suspect walking unobstructed past security before pointing a gun at Abe and shooting at him twice. And the president of Sri Lanka has agreed to resign after months of protests, which culminated over the weekend with demonstrators storming the president's home, swimming in his pool and lying in his bed.

The economy of Sri Lanka, a South Asian island of 22 million people, has ground to a halt over the past few weeks as it ran out of the foreign currency required to buy fuel. Without fuel, the country could no longer transport staples such as medicine and crops, contributing to the mass protests. Today's episode was produced by Ricky Nowetzki and Mujzadi with help from Sydney Harper. It was edited by Patricia Willans with help from Mark George and Lisa Chow.

Contains original music by Dan Powell and Marion Lozano. And was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Winderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.