The Daily - The Unexpected Ways the Left is Winning in the Abortion Fight

Episode Date: December 14, 2022

When the Supreme Court overturned Roe v. Wade this year, it appeared to be an unvarnished victory for the anti-abortion movement.But as the year draws to a close, the realities of a post-Roe America are turning out differently than anyone predicted.Guest: Kate Zernike, a national correspondent for The New York Times.Background reading: After the midterms, abortion rights advocates hope to harness public support for the long term, while anti-abortion campaigners look to advance new laws.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 Sabrina Tavernisi, and this is The Daily. Today, the end of Roe v. Wade appeared to be an unvarnished victory for anti-abortion advocates. But as my colleague Kate Czernicki found, as the year comes to a close, the realities of a post-Roe America are turning out differently than anyone had expected. It's Wednesday, December 14th. So Kate, it's the end of the year. Time for a reflection. And I think it's fair to say that, you know, journalistically, when we look back at 2022, it was the year that Roe v. Wade was overturned. And it was the year that the country figured out how to operate in that new reality. And so we wanted to talk through with you where we are right now.

Like, with the benefit of hindsight, what has been the meaning of the country's post-Roe journey, and where has it left us? Well, at the highest level, we started off thinking that the overturning of Roe in June was a total victory for the anti-abortion groups. Those groups had fought Roe for the 50 years that it was in effect. And overturning Roe returned the battle on abortion to the states. And they had been ready for this ruling. They had all these laws passed that the minute Roe was overturned, these states were going to ban abortion. I remember that. The trigger laws, all of that.

Exactly. The trigger laws. But in fact, we're in a really different place nearly six months later. Yes, 34 million women of reproductive age live in states where abortion is now banned. But now that the battles are playing out not in federal courts, not at the Supreme Court, but on the state level, the rules of the game are different. And everyone thought that shifting the battle on abortion to the states would help anti-abortion groups. But in fact, what we're seeing is that abortion rights groups are starting to rack up victories in the states. Okay, so the abortion rights side is actually having some victories, which is surprising. Yes, it is surprising. Okay, so Kate, let's talk through this new landscape you're describing in detail. Like, where should we begin?

Well, let's start with ballot initiatives, which are sort of the most direct form of democracy. with ballot initiatives, which are sort of the most direct form of democracy. With a ballot initiative, either the legislature or citizens through a petition put a measure on the ballot and ask the state's voters to obviously approve or deny it. And often this is used to amend state constitutions. And ballot initiatives are turning out to be a real point of success for abortion rights groups. So where have we seen these be successful? Give me some examples. So in a couple of cases in blue states, there were some expected wins. So in Vermont and California, voters approved ballot initiatives that would explicitly establish a right to abortion in those state constitutions. So like directly in the language in its state constitution?

Directly in the language and directly approved by voters. Okay. But a more surprising one to me was in Michigan, where we really didn't know what was going to happen. After Roe was overturned in June, abortion rights supporters in Michigan had rushed to get an initiative on the ballot there that would amend the state constitution to say the state of Michigan explicitly protects a right to abortion. And so what happened? I think abortion rights groups went in feeling pretty confident about Michigan, but it was definitely not a sure thing. Michigan has a Democratic governor, a Democratic attorney general,

but the legislature was controlled by Republicans. And remember, you know, this is sort of a fluky state. In 2016, Michigan helped elect Donald Trump. So it was not guaranteed that this was going to pass. But in fact, it did pass. Voters overwhelmingly said, we want our state constitution to protect a right to abortion. But both sides recognize how important these ballot initiatives can be. But both sides recognize how important these ballot initiatives can be. And what's even more striking to me is what happened in red states, where anti-abortion groups had put ballot of those red states would come out and say, absolutely not, we do not want abortion. And in fact, in all three of those states, those measures failed. So really kind of blowing up the theory about whether people in red states want this, right? Yes, absolutely. You know, for years, polls have been saying that Americans

overwhelmingly support abortion rights, but even abortion rights groups weren't sure that their supporters would come out to the polls and show that support. But what we saw with these ballot initiatives is that they did. They did come out and show their support for abortion rights. So, Kate, all of this seems surprisingly good for the abortion rights side, right? Like these ballot initiatives are almost entirely wins for them, even in red states. So is this the future of their fight? Well, yes and no. Ballot initiatives are not going to work everywhere. There are 17 states overall that allow citizens to put measures

on the ballot. Of those 17 states, seven already protect abortion rights to some degree. So California, for example. That leaves 10 states that allow citizens to put ballot measures on the ballot. But 10 states is still not nothing, right? That's a lot in the grand scheme of things. 10 states is not nothing, particularly if you look at, you know, the map of the country and where abortion is banned. If you live in the middle of this country, it is really hard to access an abortion right now. Having a few states where that flips could make a huge difference. And we're already seeing the start of some ballot initiatives

in pretty crucial states. So in Ohio this week, two different abortion rights groups announced they were starting the work to get a ballot initiative on the ballot. We've also seen some movement in Missouri, in Oklahoma, and in South Dakota. Wow, interesting. But there's also some backlash to that. And in those places, it's sort of become a race because the countermeasure from Republicans is that they are trying to restrict the ability of people to put measures on the ballot because they know this is a losing arena for them. So again, in Ohio, abortion rights groups are trying to get a ballot measure on the ballot in November of 2023. But the GOP has already put forward a bill that would make it harder

for ballot initiatives to pass. So in Ohio, 59.1% of voters say that they think the Constitution should protect a right to abortion. What the GOP wants to do is say 60% of people have to approve this ballot initiative. So it's putting it just beyond the threshold. Interesting. So the GOP is essentially concluding that these ballot initiatives are not going in its favor and deciding actually to curtail the ballot initiatives themselves. Yeah, we're going to see a lot of these sort of proxy battles on abortion where they're trying to restrict, say, the ability to get a ballot initiative on the ballot in the first place.

Right, but the Republicans are really only able to fight these ballot measures in the states where they control the legislature, right? Like Ohio. Right, that's absolutely true. But this brings us to another really important change in dynamics. And that is that surprisingly, because of the abortion issue, Democrats are actually making some gains in state legislatures. And where did you see that most vividly, Kate? So the most striking example to me is Pennsylvania, which we think of as a purple state. A Democrat won the governorship, which wasn't maybe that surprising. But what was hugely surprising is that Democrats flipped the

legislature. So Democrats now control the Pennsylvania legislature. That's enormously important for access, not just for Pennsylvania, but for women in West Virginia and in Ohio, where abortion is banned, because women from Ohio and West Virginia have been flooding into Pennsylvania to seek abortions. In another example, look at Minnesota. There, the state Senate flipped the Democrats. They have control of both chambers of the legislature, plus the governor's office, for the first time since 2013. And Democrats are really taking that as a mandate to achieve their legislative priorities. And that means they could do, you know, a mini Roe, essentially putting the protections of Roe into the state

constitution. Okay, so the left is having some unexpected wins with these ballot measures, but also in state houses in purple states. But we know, of course, you and I, that the abortion fight is also happening in courts, right? What's happening on that level? What's interesting to me is that if you look at the decision that overturned Roe, the Supreme Court said, we want to get rid of this. We want to get this out of the courts, send it back to state legislatures. But their decision not only returned the question to state legislatures, what it actually did was just shift it to a new court arena, which is state courts. And these which is state courts. And these battles in state courts are playing out in unexpected ways.

Okay, so what's an example of that? Well, the language written by Republicans in a couple of states is now being used to defend abortion in ways that people never expected. So the one that's most interesting to me is Utah, which is, of course, a really conservative state. Utah, like a dozen other states, had a trigger law that banned abortion the minute Roe was overturned. But abortion rights groups, like they did in other states, sued to block that law. And what they said was abortion is protected in the state constitution. And the reason, they argued, was that when Utah wrote its Constitution, the state, of course, has a very strong Mormon influence, had a history of polygamy.

So the state constitution said residents of Utah have the right to determine the shape of their own families. So abortion rights groups are saying, well, look, the state constitution protects the right to determine the shape of your own family. How better to determine the shape of your own family than to say, you know, I don't really want a fourth child. I can't afford a fourth child. I'll have an abortion. I'll have an abortion. And they had success with that argument, which was really striking to me. The state court agreed with them, put a block on this trigger law, and it's only a temporary block. But when they put that temporary block on, they said, we think that this court case

has the likelihood of success. So essentially, language written to defend polygamy is now language that is being used to defend abortion. And it's working. Right. It's working. And I don't think it's what anyone expected when they wrote that constitution. Right. Another interesting case is Wyoming. So again, it had a trigger ban that went into effect. Abortion rights groups sued. And again, the state a trigger ban that went into effect. Abortion rights groups

sued. And again, the state's highest court, at least for now, has blocked the trigger law. But there, it had to do with language in the Constitution around health care. After President Obama had his big bill expanding health care access, voters in Wyoming approved a ballot initiative that said that residents of Wyoming have the right to determine their own health care. Nobody can infringe upon that. So again, how better to determine your own health care than to say, I choose to have an abortion. Interesting. So another example of abortion rights groups taking advantage of laws written by conservatives and instead using them for their own goals to protect abortion.

Yes, I think that's absolutely true. And I also think it shows how support for abortion rights doesn't always fall, at least among voters, so closely along party lines. Republican legislatures may want to oppose abortion, but Republican voters, as in Wyoming, often have sort of a libertarian streak and think like, you know what, a decision to have an abortion is really up to the woman. I don't want to interfere with that. So where does that leave Republican legislators then? Well, Republicans still control the majority of state legislatures across the country. They've already passed a raft of bans. They're going to come back into session in January and pass even more bans. And they're not walking away from this fight. We'll be right back.

We'll be right back. So, Kate, it sounds like Republicans and anti-abortion activists are gearing up to counter these losses in the fight over abortion. What are we seeing in terms of their strategy? I think for Republicans and for anti-abortion groups, they're kind of doing the same old thing they've done so well. And they're trying to reinforce the gains they've made. And critically, a lot of these state legislatures are still very gerrymandered. So there's not really any punishment for Republicans who are going to pass more abortion bans, despite the fact that public opinion is on the side of abortion rights. So take a state like Indiana. Indiana banned abortion this summer. And during that special session when they banned abortion, people said, no, you can't ban abortion. People will vote against you.

The public wants abortion rights. Well, no. In fact, Republicans picked up seats in Indiana. So for Republicans, they don't see a downside to pushing additional bans on abortion. They're going to keep doing the same thing they've done, which is to make it as hard to get as possible. But even where abortion is already banned, the GOP is trying to go even further. The best example of this is Texas,

which has always been on the leading edge of the fight on abortion. Texas is taking this really big swing and trying to get rid of abortion pills. And that is huge because right now, 54% of abortions in this country are done by abortion pills. And that is huge because right now, 54% of abortions in this country are done by abortion pills. Oh, wow. So half of all abortions are through these pills. Half of all abortions. Now, when you ban abortion, you ban surgical abortion and you ban abortion by pills.

But what legislators in Texas know and what anti-abortion groups know is that women are still getting these pills, even in states where they are technically illegal. So what Texas has done, they have sued the FDA to try to overturn the FDA's approval of the pills. So this would essentially get rid of pills on a federal level, the same way that, you know, we got rid of Roe on a federal level. So Kate, for all the wins

that abortion rights activists have had in all these months, the opposing side is still really pushing. Where does that leave the map of abortion rights activists have had in all these months, the opposing side is still really pushing. Where does that leave the map of abortion access today? So it's really a patchwork, which we always knew it was going to be. There are some states that have protected abortion in their constitution and where it's fully legal and accessible. That's states like California and Vermont, and that's unlikely to change. But then there's another group of states where bans exist, but abortion rights groups are challenging them. One recent report counted 34 lawsuits in 19 different states. And in some of those states, the courts have put the bans on hold

so women can still access abortion. Then there's another group of states where abortion remains legal, but clinics have stopped providing it because of the legal uncertainty. So a lot is really going to depend on these lawsuits going forward. Kate, I remember right after Roe fell in June and the federal right to abortion went away and abortion and the fight over abortion went back to the states. We talked to a lot of abortion rights people at the time, my colleagues and I at The Daily, and we asked them, okay, Roe is gone. What's the plan? And they didn't really have an answer at that time. Like they didn't know what their argument would be. But it sounds like from what you're saying to me, that is starting to change. I think that's right. The

most important thing here is that fundamentally, the politics of abortion have changed. For a long time, the people who voted on abortion were the people who opposed it. And abortion rights groups had a really hard time getting their supporters to the polls, or frankly, getting them to do anything to show that support. The tables have totally turned on that. And what we've seen in the last six months is that when you take abortion away, or threaten to take it away, voters are going to come out to protect access to it. And we see that in the polling. So it seems like this moment now is pretty clarifying for abortion rights advocates.

back, you know, the change in public opinion that you're mentioning. And they're using it to both win elections and to write abortion rights specifically into state constitutions. And therefore, in some ways, embedding something as strong or potentially even stronger than Roe into state law. That's right. You know, for 50 years that Roe was in effect, everyone knew that it was very flimsy. And even the abortion rights groups knew that. There was no specific right to abortion in the U.S. Constitution. It was derived from an interpretation of law. It was not explicitly enumerated in the Constitution. And that was ultimately its demise. What's happened now, because the Supreme Court forced this back to the states, it's actually and unexpectedly opened up a new chapter where abortion rights

groups see potentially a way to establish even firmer protections in state constitutions. Now, mind you, I don't think anyone who supports abortion rights, and certainly not these groups that have been fighting for it for 50 years, would say they're happy that Roe has been overturned. But we have reached a moment now after the midterms, six months after Roe was overturned, where they're actually, I would say, starting to feel bold enough that they can say, be careful what you wish for when you overturn Roe, because we actually have something that might be even stronger up our sleeves. Right. Like the ballot initiatives potentially are a stronger legal foundation, even though abortion rights advocates are going to have to go state by state to do them.

Right. But there's been this twist in that the abortion rights side has unexpectedly turned out this wave of support. And in the last six months, the abortion rights groups are actually finding a path in state courts, in state legislatures, in ballot initiatives through these state constitutions. And yes, it's harder because they have to go state by state by state. But when you put the right into a state constitution, in most cases, it's less contorted because when that right goes into the state constitution, it's generally much more explicit than in the federal constitution. And when you put it in the constitution, you can make it much more expansive. So take Michigan for an example. The right to abortion that was established by that ballot

initiative that passed is far more expensive than anything that was in the U.S. Constitution, far more expensive than Roe. It gives women control over the entire spectrum of choices in their reproductive health. That's huge. That's not just sort of inserting the language of Roe into state constitution. It's not some sort of mini Roe. This is like maxi Roe.

This is Roe on steroids for these states. So that's new. And that's pointing a road forward for abortion rights groups. And six months ago, they didn't think they had a road forward. Kate, thank you. Thank you. Thank you. We'll be right back. charging Samuel Bankman Freed, FTX's founder, with a series of interrelated fraud schemes that contributed to FTX's collapse.

On Tuesday, Sam Bankman Freed, the disgraced owner of the FTX cryptocurrency exchange, faced widespread charges of fraud after his arrest in the Bahamas on Monday. Federal prosecutors accused him of lying to investors and of using his customers' deposits to finance his political activities and to buy lavish real estate. The Securities and Exchange Commission also filed charges, alleging that Bankman Freed had misled investors, who committed nearly $2 billion to FTX. This is really old-fashioned embezzlement. This is just taking money from customers and using it for your own purpose. Not sophisticated at all. Sophisticated, perhaps, in the way they were able to sort of hide it from people. And in Washington on Tuesday, a House committee

heard testimony from John Ray III, who took over FTX after its bankruptcy. He said FTX was a case of, quote, old-fashioned embezzlement. And... Today, I sign the Respect for Marriage Act into law. In an elaborate ceremony on the South Lawn of the White House, President Biden signed the Respect for Marriage Act into law, In an elaborate ceremony on the South Lawn of the White House, President Biden signed the Respect for Marriage Act into law, mandating federal recognition for same-sex marriages. The new law prohibits states from denying the validity of out-of-state marriages based on sex, race, or ethnicity.

Marriage, I mean this with all my heart, marriage is a simple proposition. Who do you love? And will you be loyal to that person you love? It's not more complicated than that. The landmark legislation officially erases the Defense of Marriage Act, which a quarter of a century ago formally defined marriage as between a man and a woman. The law recognizes that everyone should have the right to answer those questions for themselves without the government interference.

Today's episode was produced by Sydney Harper, Nina Feldman, and Stella Tan. It was edited by Mark George and Liz O'Ballon, contains original music by Marian Lozano and Alicia Baitube, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.