The New Yorker Radio Hour - The Battle After Roe v. Wade

Episode Date: May 13, 2022

Assuming that Justice Samuel Alito’s final opinion in the Mississippi abortion case Dobbs v. Jackson Women’s Health Organization gets majority support, there will be profound social, political, and health-care implications across the United States.   Margaret Talbot, Peter Slevin and Jia Tolentino assess the world after Roe.  Opponents will surely not stop by leaving abortion at the state level but will try to ban it under federal law.  Tolentino discusses fetal personhood, the legal concept that a fertilized egg is entitled to full legal rights, which severely compromises the bodily autonomy of a pregnant woman.  There is already speculation that access to birth control and same-sex marriage could be challenged. “If people feel panicked about all those things, I wouldn’t invalidate that,” Tolentino says. But focussing on the immediate post-Roe future, she says, presents enough to worry about. “This is a universe of panic on its own. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. The leaked opinion from the Supreme Court on the Mississippi abortion case, Dobbs v. Jackson Women's Health Organization, seems to promise a true transformation in this country. Assuming the final opinion by Justice Alito gets majority support, and it, let's face it, it very likely will. We'll see the end of federal resolution. reproductive choice in America. And that will change the country. In many red states, abortion bans will take effect immediately, but this would also have very real effects in blue states from New York to

California. In fact, Mitch McConnell has already talked about a complete nationwide ban. I'm joined now by three New Yorker writers who have been considering where all this is going, Margaret Talbot, Peter Slevin, and Giotolentino. We'll start with Margaret Talbot, who's reported on the Supreme Court, She's written about justices including Antonin Scalia, Elena Kagan, and most recently, the appointment of Amy Coney-Barrant. You know, I think we're so used to these confirmation hearings where people are asked, and, you know, Susan Collins and Lisa Murkowski get some sort of promise from Kavanaugh or Amy Kony Barrett or wishfully think that they have heard them say, well, this is settled law. So it's, you know, stare decisis, respect for precedents. We're not going to, we're not going to overturn this. But the fact is, you know. Let's stop there. But were they lying in their confirmation hearings?

You know, if you look at what they actually say, I don't think they were actually lying. I think they were obfuscating. I think they were, you know, they say things like it's settled law. Well, that's just a statement of fact. It was settled law. They don't say it's settled law in a decision that I believe in. In the case of Amy Coney Barrett, though, there was a really, you know, very, very explicit track record of opinions. that she'd expressed outside the court. I mean, she had signed a two-page ad that appeared in the South Bend newspaper when she was a professor at Notre Dame in 2006 saying that abortion was barbaric, that Roe had to be overturned. She was a member of the campus faculty Right to Life group.

So, I mean, you know, I think it's one thing for somebody to say, I don't think this was a well-decided legal precedent. It's another thing for them to say abortion is barbaric. then I think it just beggars, you know, common sense to think that when you're presented with a chance to overturn something you think is barbaric, you think is, you know, murder that you won't do it. Assuming that Roe is overturned, and I think that's where we are in our journey of assumptions, what's the next step for the conservative legal establishment? Yeah, well, I think they have, you know, a pretty big agenda, and you see the sort of legislative form of it at work in, the bills in Florida to prevent discussion of gay issues and classrooms in, you know, the anti-trans

bills, in the attacks in some cases on birth control. The Idaho state legislature said that it was going to open hearings on the morning after pill. But because of the makeup of the court now, I think some matters that would have been thought truly settled become up for debate or up for consideration again. I mean, same-sex marriage. decisions, same-sex intimacy, even perhaps contraception, are potentially on the table again. You know, a lot of people thought, we wouldn't get this far with Roe. So I wouldn't, I wouldn't, you know, completely rule it out. Is there a world in which abortion becomes banned throughout the United States? There's a lot of talk now about people traveling from, say, Mississippi to Illinois,

if they can afford it and they can to get an abortion. But is there a world of a national ban? Again, I think it's not completely off the table. I mean, I think that that is the goal of this anti-abortion movement, which has been remarkably passionate and successful and determined. And they would like to have a national ban on abortion. And you're right that, you know, right now we have a profound division. Probably, you know, the prediction is 26 states, mostly in the South and Midwest, will ban abortion completely after this decision goes. into effect and people will try and travel to other states where abortion is still legal and they will try and get medication abortion, you know, abortion pills sent to them through the mail. But a lot of states now, anti-abortion states are trying to criminalize travel for abortion or receiving of pills in the mail. I mean, I would think maybe a realistic scenario would be many states would keep it legal, but the states where it's illegal, would try their best to make it very difficult to travel to get an abortion.

Now, with the restrictions already in place in Texas and other states, people seeking abortions have already been traveling very long distances to obtain medical care. Peter Slevin is based in Chicago, and he's been watching all of this unfold. Peter, you just published a piece about how abortion providers in various states are preparing for what we're now calling the post-row world. You're based in Chicago. You spoke to providers in various states near you. To get a sense of where we are now, how easy is it to get an abortion in the Midwest? It depends on which part of the Midwest. Illinois has made itself into a safe haven for abortion through legislation. There's no waiting period. Medicaid will pay for an abortion. The Democratic legislature and Governor J.B. Pritzker, also a Democrat

got rid of the parental notification law, but it is a very different picture in the rest of the Midwest, where abortion access is already extremely difficult without the Supreme Court weighing in on the Dobbs case. Now, in Chicago, what kind of demand are abortion providers seeing? What are they predicting if row falls? Are people going to, will there be a huge influx to places like Chicago? It's been interesting to see already what the influx is from out of state. Everyone remembers what happened with SB8 in Texas, which banned abortions after six weeks. Chicago saw its first Texas patient within just a couple of days after SB8 went into effect. Already in recent years, the numbers of out-of-state patients have been growing really quite

dramatically. Planned Parenthood of Illinois, which has been preparing for this for quite some time, thinks that in the first year after Roe is overturned, if that's what the Supreme Court does, the numbers of out-of-state patients may grow by 20,000 or more. Now, we've been hearing a lot about medication abortion, a combination of common drugs that could be prescribed remotely. You talked in your piece with a provider in Minnesota who's been working on this. Tell me about her practice. It's quite intriguing what's going on with medication abortion.

According to the Gutmacher Institute, in 2020, 54% of abortions in this country were done through the two-pill regimen. And these two pills are, to just be specific. There's Mifopristone, which stops progesterone, which stops a pregnancy from growing, and then Mesa Pristol, which creates contractions. These pills are legal in 60 countries. The FDA has said they are safe and effective.

the OBGYN community in this country says the same. And more and more patients are turning to these pills, which they can get sometimes through telemedicine, sometimes over the web. And what will happen to those medications in a post-row world? Republicans in a number of states are racing to try to outlaw medication abortions. They're doing this through restrictions

that require a woman to see a doctor, doctor in South Dakota more than once with the waiting period and so on. Some states are banning telemedicine appointments, which are, again, deemed by the medical community to be completely safe where a patient calls a doctor remotely is approved for medication, abortion, and then those pills are dispatched to the patient. Peter, you reported on an organization in Minnesota called Just the Pill, isn't that right? It is called Just the Pill, and it's a two, women who got together a couple of years ago when they saw the ways that medication abortion could be a safe and private way for people to obtain abortions. And then as they saw states

trying to ban or at least severely restrict the delivery of medication for abortions, they had an idea. They said, if you look at the Dakotas, North and South Dakota, where telehealth appointments for medication and abortion are banned? What if we could set up shop remotely in Montana and Wyoming? And women could just drive across the border, call us after they pull over in their car. We do the telehealth appointment, and then we can safely send these two pills to a distribution site in Montana and Wyoming, and that's what they're doing. It sounds like the world that you're portraying, a post-row world, is going to be one of

thousands of women driving to or making their way to places like Illinois, New York, California from far away states. That's one aspect of it. And then you'll have the aspect of drugs being traded in one way or another to have abortions that way. That's exactly right. They're sometimes called abortion migrants, abortion refugees. People with means, they can fly into Chicago and have an abortion at a clinic, of which there are many. And what do the people you're talking to expect will happen with people who don't have the means to fly to Chicago or wherever, or who don't have the capacity or the knowledge to get the kinds of drugs that you're talking about?

That's the real fear among folks who are in the reproductive rights community, who are providing abortions, who are helping women to get abortions. And it brings them to tears sometimes when they realize, when they start to contemplate what it will mean if Roe is overturned. So there are abortion funds all over the country. A large one in Chicago is called the Chicago Abortion Fund. And these funds help women navigate an abortion, how to get one, how to get to town, how to pay for it,

how to arrange for child care if they have to be away for a couple of days and lodging. And the Chicago abortion fund has been, receiving an average of 500 calls a month this year, 85% of them from out of state. Peter, what will you be watching for in the months ahead? Let's imagine for a moment that the Supreme Court overturns Roe, as the Alito draft suggests, will happen. It will be valuable to look at legislatures in Republican-led states to see just how far they will go to ban abortions. In some case, it'll be almost immediate, such as in Missouri, where the Attorney General has said that he will take the measures to invoke a trigger law,

stopping abortions as soon as the Supreme Court rules. And then we'll be looking to extremely creative believers in a woman's right to choose who will be looking for ways around these rules and ways to help women get an abortion if they so choose. That's Peter Slevin in Chicago. We'll continue in a moment. A decision to overturn Roe v. Wade would make abortion a matter of state law. but opponents of abortion almost certainly would not stop there. Gia Tolentino has reported on the reproductive choice battle

and the ways that it goes beyond abortion. Gia, earlier this year, you wrote a piece for the New Yorker about Oklahoma, where in 2012 there was an attempt to amend the state constitution to establish what's known as fetal personhood. And the state Supreme Court there ultimately struck it all down. How does this idea of fetal personhood work its way into law? A lot of conservative legislatures, state legislatures, have introduced fetal personhood bills. Like Oklahoma.

Like Oklahoma. Most of them have failed. So Oklahoma's failed. But then you see Oklahoma as sort of a test case of what might happen, right? So the fetal personhood amendment fails in 2012. But in 2015, the state medical code was amended to require that any fetal death past 12 weeks would be reported as a stillbirth, right? There was something called the humanity of the Unborn Child Act passed in 2016, which required that the State Department of, health teach that, quote, abortion kills a living human being, right? And since then, in Oklahoma,

you have had this pretty wild, rampant, extreme prosecution of miscarriage. There was this report by the frontier that at least 45 women in Oklahoma have been charged with child abuse, child neglect, manslaughter because of drug use during pregnancy. Gee, when I hear about the prosecution of miscarriage, how can that happen? What is that? So fetal personhood is the idea. So fetal personhood is the idea that a fetus, starting at conception, the moment of conception, which is to really say an embryo, is a human life that is deserving of full legal protection. It's the idea that underpins the entire anti-abortion movement. It's the idea that's given the movement its urgency, right? The idea that abortion is a human rights violation, that it is a death for a human life that is

vulnerable but equal and possibly even superior to yours and mine. Fetal personhood is sort of the only and fundamental idea that would require a total ban on abortion, which is the goal of the anti-abortion movement and the ideal that's now in the minds of many conservative legislators. And it's why you get people sincerely and for many years saying abortion equals murder. Right. So miscarriages are incredibly common. There are about a million miscarriages in the United States every year. If every miscarriage is grounds for suspicion that something has been done to end or even take a human life, whether that thing is using drugs or over-exercising or, you know, or doing any number of the things that women are told they're not supposed to do during pregnancy

or else something might happen to, quote-unquote, the baby. You know, then miscarriages become, and they will become grounds for prosecution quite broadly. You grew up in Texas. You grew up with a lot of people who were quite religious and kept up with a lot of that. It's not like you're detached from the community in which you were brought up. And when you remember those arguments, those pro-life arguments, and when you engage them now, do you have any sympathy for them? I do. I do have sympathy for them because I think, you know, the modern pro-life movement was founded in this idea of it was a human rights issue, right, that stopping the right to abortion

was saving innocent lives. And I think that kind of rhetoric twists the impulse to protect life in a way that invalidates, you know, the autonomy of the mother and the civic participation of women. But I understand why, if you really believed that life began at conception,

you would do anything that you could to protect it. I just think that that idea is a lot easier to get behind rhetorically than to actually live with to the letter every second of the day. If people really believed this idea that is being jurisprudentially pushed upon the nation with Rose Repeal, then people would act very differently. That, you know, people still do IVF, which is something that if you really believe life begins at conception and fetal personhood from conception, then you wouldn't be able to stand IVF because there would be

innocent human lives in freezers, right? The idea is so extreme and it's so jurisprudentially unworkable as we are probably about to see. that it has these far-ranging implications for miscarriage, for the prosecution of miscarriage, for IVF, and everything surrounding it. If you believe in the personhood of an embryo at conception, then things like IUDs and the morning after pill are tantamount to murder. And this is kind of the territory that we're waiting into. Gia, the leaked opinion has set off what feels like an avalanche of nightmare scenarios

about where the court goes next as a result of this. without the privacy right that comes from Roe, there are concerns about gay marriage, access to birth control, even in some circles, coming out of the loving case, interracial marriage. At this point,

how are you differentiating legitimate concerns from panic? Yeah. I think that they're, I think that reading through the draft opinion, there are plenty of reasons to fear all of those things, right? There are plenty of reasons to,

to fear a world in which if the Constitution written for a country where only white male landowners are full citizens, if those are the only rooted rights in America, if people feel panicked about all those things, I wouldn't invalidate that. But even just focusing on what will happen when Roe falls and what will happen to mothers and poor mothers and 13-year-olds and trans men and people with ectopic pregnancies and people who come into the hospital miscarrying

and then our drug tested and pulled up on, you know, charges of manslaughter, which has happened and will continue to happen. This is enough to panic about this is a universe of panic on its own. The New Yorker's Giotolentino, and we heard two from Peter Slevin and Margaret Talbot. You can read all of our coverage on the battle over abortion rights at New Yorker.com. And if you missed it, I'd urge you to listen to a piece we aired last week, too. A visit to the Mississippi abortion clinic at the very center of this critical case before the Supreme Court. You can find it all on the podcast of the New Yorker Radio Hour.

And that's the New Yorker Radio Hour for today. See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Arts, with additional music by Alexis Quadrato. This episode was produced by Alex Barron, Ave Carrillo, Brita Green, Calalia, David Krasnow, Gophane and Putubuelly, Louis Mitchell, with help from Alison McAdam, Harrison Keithline, and Mengfei Chen, and guidance from Emily Boutin. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.