Mary Ziegler
Abortion in America: The Debate Over Roe v. Wade

Mary Ziegler | Abortion in America The Debate Over Roe v. Wade | 05.24.22

- Thank you, all right, well, a very warm welcome everybody, and it’s my great pleasure today to introduce Mary Ziegler, who’ll be talking about abortion in America, the debate over Roe versus Wade. It’s a great honour and it’s a great privilege to have you here with us today, Mary. A million thanks. I’m going to quickly introduce you and then I’m going to hand over to you. So I’d like to welcome Mary, who is a law professor at UCS Davis. She’s one of the leading authorities on the law and history of the US abortion debate. She’s the author of four books on reproduction and the law, including “Abortion And The Law In America: Roe Versus Wade To The Present,” which is Cambridge University Press 2020. And she’s the award-winning “After Roe: The Lost History of Abortion Debate,” which is Harvard University Press 2015. Her new book, “Dollars for Life: The Anti-Abortion Movement, and The Fall of the Republican Establishment” is out with Yale University Press next month. That’s exciting, Mary. So that’s something to look out for, everyone. Mary’s expertise is often featured on leading media markets around the world, including CNN, MSNBC, CBS, NPR, and the New York Times, the Economist Bloomberg and the Washington Post. She has a new book coming out next month titled “Dollars For Life: The Anti-Abortion Movement, And The Fall Of The Republican Establishment.” Gosh, so accomplished. Well, congratulations, and we’re also looking forward to hearing from you. Thanks so much, over to you.

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• Thanks, so I’m assuming most people here have heard, obviously the arguments pro and con about abortion rights. I think it’s probably harder for some people to understand basically how we got here. So first, just a brief word about where here is, and we’ll talk more about this in the Q and A. Earlier this month, there was a leaked majority opinion by the Supreme Court written by Samuel Alito that would overrule Roe v. Wade in its entirety, right? Eliminate the idea that there’s a right to choose abortion and likely then send this question back to the states, which would mean at least in the short term, that each state would get to do its own thing on abortion. We estimate that at the beginning, somewhere between 24 and 26 states would criminalise most or all abortions. What would happen in other states would vary. Some states would have some sort of, would expand access to abortion, including for people from out of state. Other states would probably restrict abortion or ban it at some point in pregnancy, but not from the very beginning. And obviously this was a draught, we don’t know what the final draught will say, but we have every reason to believe based on leaks from the Supreme Court and other sources, that the basic premise, right, that there will be no right to to choose abortion in the United States is not likely at all to change, and that we’re looking at that happening in about a month’s time.

So I think it’s quite hard, I think, for people to understand how this might have happened in the United States. It may be especially hard for people to understand in some ways, given that the rest of the world, not entirely, but in many ways seems to be moving in the other directions. So we’ve seen in recent years in places from Argentina and Mexico to South Korea and Thailand, abortion laws being liberalised rather than constricted. So I’m going to talk to you a little bit about the history of, I think what got us to this point. And I’m happy to talk more in Q and A about what comes next. But I think what comes next is easier to understand when you understand how we got here in the first place. So I’ll start at the very beginning, which is quite a while before the pictures in this slide. So abortions obviously have happened in the United States from the very beginning, from the time when people first arrived in the United States. We know that enslaved persons had abortions. We know that indigenous people had abortions. We know that colonial settlers had abortions. The exact criminal law on abortion, the history of that is contested. What we know is that by the 19th century, states were moving to criminalise abortion early as well as late in pregnancy.

Up until that point, it seemed to be that unless foetal movement could be detected, that states would either not prosecute abortion at all or would not prosecute it as a felony. But by the 19th century, this changed. States began punishing people for performing abortions, not particularly for having abortions. And this was the status quo really until the 1960s when an abortion reform movement took shape. One thing to be clear about then is that there wasn’t an anti-abortion movement. You see, James Buckley, Senator James Buckley of New York here was a member of the anti-abortion movement, that from the very beginning, that movement was opposed to the kind of compromises you were seeing in the 1960s. So in the 60s, the American Law Institute, which was an elite body of lawyers and judges and some other professionals, proposed changes to abortion laws that would essentially make abortion legal only in cases of rape, incest and certain health threats or foetal conditions. And at the beginning, this kind of bill had bipartisan support. Ronald Reagan, who was already a conservative Republican, then governor of California, signed one into law. So did Spiro Agnew, who was Richard Nixon’s future vice president, but anti-abortion groups oppose them or pro-life groups, depending on your perspective, because they conflicted with the idea that personhood began at fertilisation of an egg, right? Because if you couldn’t, for example, kill a two year old because it had been conceived in rape or incest, the argument was you shouldn’t be able to have an abortion on that basis either.

By the late 60s, supporters of abortion rights didn’t like this compromised model either, because it didn’t really expand abortion access much at all, especially for people of colour. So by the time Roe v Wade got to the Supreme Court, there was already a pretty intense abortion battle. It was full unfolding in presidential politics. Richard Nixon in 1971 accused his opponent, George McGovern, of being a supporter of the three A’s, which were acid like LSD, amnesty for draught dodgers and abortion. But it wasn’t political in the way it is now. So McGovern’s running mate was a pro-life Democrat. There were prominent pro-choice Republicans, but it was a political issue and it was a divisive issue. So then Roe came down in 1973, Roe held that the right to choose abortion was covered by a broader constitutional concept of privacy that the Supreme Court had recognised in the context, particularly of the use of birth control, but also in the context of things like the decision parents make about how to raise their children or decisions about whom to marry. The court rejected the idea that personhood began at fertilisation, saying essentially that different religious traditions and even different medical professionals took different positions on when meaningful life began, and so that the state couldn’t conscript people into believing one version or another. And the court argued that the word person was something defined in the text of the Constitution as occurring after birth.

So immediately after Roe then, what you saw was not much focus on the Supreme Court at all. That’s a relatively recent thing. Instead, you saw a focus on the idea of the nationwide abortion ban. And that’s one of the reasons we see this coming back now, because for folks who are in the pro-life or anti-abortion movement, this is a human rights cause compromise about it is inappropriate. And letting each state do its own thing is not really the point. So after Roe, we saw this in the shape of national constitutional amendments that were proposed by the movement to not only overturn Roe, but to criminalise abortion in blue as well as red state. So Senator Buckley proposed such a ban. You see some news coverage here and some law review articles describing different constitutional bans that were often described by their proponents as human life amendments. But as many of you may know, if you follow the Equal Rights Amendment, banning or changing the text of the US Constitution is not easy to do, right? If you wanted to change the text of the US Constitution to say Friday is better than Monday, it would probably fail somehow. It’s just become virtually impossible. So the strategy was to hold down the abortion rate while this fight for a constitutional amendment continued. And one of the engineers of this was Henry Hyde, a representative from the kind of Chicago O'Hare area outside Chicago.

You see Mr. Hyde here on the phone, which is pretty much what he always did. And so the Hyde amendment, which you may have heard of, was one of these efforts that was designed to be kind of a stop gap, right? To make it hard to get abortions in the short term. The Hyde Amendment in particular made it hard or prohibited Medicaid patients for being reimbursed for abortion under most circumstances, sometimes under all circumstances. And the Hyde amendment was very effective, right? It meant that most Medicaid patients were not able to get reimbursement. It meant that probably a significant number of people who would’ve had abortions, continued pregnancies. And of course, it sort of set a precedent in the sense that most abortion restrictions that would follow the Hyde Amendment would disproportionately affect low income people, and in particular, low income people of colour. But this also was a time when you began to see somewhat of a, I think, a disconnect between the movement to protect or continue the existence of abortion rights, which was overwhelmingly a white movement of people with some resources and a kind of emerging reproductive justice movement among people of colour and reproductive justice advocates often focus not only on the idea that there is choice or a right to choose or should be a right to choose, but that choice doesn’t mean the same thing for people who are facing racism in their lives, for people who don’t have the resources to effectuate the choices they want. And that choice also for people of colour, the argument went also was not available to people who wanted to have children and raise them in healthy environments, not only those who wanted to avoid having children at a particular time.

But the constitutional amendment campaign, which had been the kind of setting the terms of the debate on both sides, eventually flamed out, which wasn’t that surprising. So it flamed out in the early ‘80s, in part because, and I’ll go ahead a slide here. Abortion had become a partisan issue. So up until that time, there were routinely lots of people who would identify as pro-choice Republicans and pro-life Democrats. Ronald Reagan began to change that at the National party level. So Reagan took the position essentially that you could get people who had been Democrats who were socially conservative Catholics or evangelical Protestants to switch parties if you leaned on abortion. Now, you may ask like, why abortion? Was it because Roe v Wade had happened? Was it because people just cared more about abortion than other stuff? I don’t think the historical record supports any of that, because many of the people who were socially conservative at this point were also anxious about the early LGBTIQ movement. They were anxious about women’s changing role outside the home. They were anxious even about the spread of no fault divorce, which was relatively new at the time, but there wasn’t anything one could clearly do about any of those things.

Like if you elected Ronald Reagan, he wasn’t going to be able to get rid of the women’s movement or the LGBTIQ+ movement, but he could potentially help shepherd through a constitutional abortion ban, or potentially nominate different people to the Supreme Court. So on the constitutional abortion ban front, things went pretty badly though. So Reagan was elected, Republicans and Republicans who were at this point identifying, as opposed to abortion, took control of Congress, and yet nothing happened. That was because the movement didn’t have the votes to do what it really wanted to do, which was a flat ban on abortion nationwide, and it was hopelessly divided between the alternatives. So one alternative was proposed by Senator Jesse Helms, the famous segregationist, Senator No, as he was called, because he said no to everything who’s depicted here on the left, he wanted to have a statute banning abortion, which we’ve seen revived by Republicans now. But people at the time thought the Supreme Court would strike that down. Oren Hatch, who used to look young like this is depicted here on your right, wanted to have a constitutional amendment basically saying each state gets to do its own thing, a constitutional amendment that would put us in the place we’re about to be in a month’s time.

The anti-abortion movement really began kind of a civil war about these two things. People thought that Helm’s proposal was stupid because it was unconstitutional. That Hatch’s proposal was stupid because it didn’t actually ban abortion. And the end result was that the movement basically didn’t do anything. But an alternative plan came into view in 1983 when Sandra Day O'Connor wrote a dissent in a kind of case most people have never heard of out of Akron, Ohio. So Akron had passed an ordinance putting lots of restrictions on abortion, and the Supreme Court in 1983 struck it down, and O'Connor was kind of going to be an unlikely hero to the anti-abortion movement because the anti-abortion movement didn’t like her and didn’t trust her and thought she had been a pro-choice legislator in Arizona. But O'Connor wrote a dissent essentially saying, Roe v Wade doesn’t make any sense, it’s unworkable. It should be rethought. And so then this created this new idea. So if the anti-abortion movement has this partnership with the Republican Party that isn’t getting it anywhere, the new plan would be to get more people like O'Connor on the court. And if you controlled the court, the argument went, you could get at least the court to overrule Roe v. Wade and maybe much more, right? Maybe you could get the court to maybe recognise foetal personhood and ban abortion.

So this was the strategy for some time going into the 1990s, there were six conservative justices on the Supreme Court. The six justices were believed likely to overturn Roe, they’d even signalled as much. But then in 1992, they changed their minds at the last minute. And three of them, Anthony Kennedy, Sandra Day O'Connor and David Souter wrote a joint opinion essentially saying, we’re going to preserve the basic holding of Roe, which is that there’s a right to choose abortion until viability. And we’re going to do that because if we didn’t, in part, it would disrupt a lot of people’s lives. The argument was that people, particularly women and pregnant people, had structured their lives around the availability of abortion as an option and had achieved things they might not have otherwise been able to achieve in their careers or educations, or even just in making ends meet because abortion had been available to them. And so that decision, Planned Parenthood versus Casey is also on the line. The Supreme Court will be overruling that decision too. It also changed the terms of the conversation. So Casey asked whether a law was unduly burdensome. That’s the only way an abortion restriction would be struck down. And of course, this ultimately had a big effect on how the two sides thought about abortion.

One way it, of course, was that it set off what you may have become familiar with, which was arguments that abortion actually hurts women and people who are pregnant, that it causes them to be infertile, that it causes them psychological trauma, and that therefore this idea that women and pregnant people rely on abortion to lead more equal lives is wrong because abortion actually hurts those same people. That argument emerged out of Casey. But the other thing that emerged out of Casey was this new focus on what abortion is really like, right? So a focus on not who has a right to do what, but is abortion good for people who have it? Is abortion good for their families? Is abortion good for our communities? Who do we ask about these questions? Like do we ask scientists? Do we ask doctors? Do we ask politicians? Do we ask our neighbours? What do we do? And so, this focus on the facts deep into the polarisation around the issue. So now people were no longer disagreeing just about morality of abortion or constitutionality of abortion, but just what abortion even was. And this was happening at a time when conservative media was just getting going. Fox News Channel was of course founded in 1996. Other conservative media outlets like OAN and Newsmax launched in the years to come. And that created a deepening divide as well, because people with differing views on abortion were getting their information from entirely different sources.

Anti-abortion and pro-choice groups had their own experts, they had their own sources of data. They often seemed to be inhabiting different kind of universes factually, this was pretty evident in the fight about the so-called ban on partial birth abortion, the federal Partial Birth Abortion Ban Act. You see George W Bush signing that into law in 2003. You see a line drawing that was used in promotion of the federal statute on your screen, there was a fight about whether this ban was needed or a health exception was needed to this ban. And in that fight, it became clear that people on differing sides of the abortion debate were not listening to the same people or looking at the same data. In reaching a conclusion, the Supreme Court actually upheld the federal ban in a decision called Gonzales versus Carhart in 2007, and said, essentially, “When there’s scientific uncertainty, legislatures can restrict abortion.” And that was the world I think we were living in for some time going into the present moment, states were either manufacturing or asserting that there was scientific uncertainty, and then they were introducing laws, for example, banning specific abortion procedures or regulating when people could take pills or regulating what doctors had to say before an abortion took place.

This sort of incremental shipping away that’s become familiar. So another question is sort of, well, what moved us from that moment, the chipping away moment to this moment when the Supreme Court seems ready, literally in its first decision on the merits of abortion since Amy Coney Barrett has joined the court, when there was no real reason for the court to take up this case, there was no split in the lower courts about this. What is making this happen so quickly now? I think one answer is that the country is just more polarised than it has been. I think this polarisation, this is just a graph showing how ideological polarisation has increased significantly since the 90s that Pew has documented that polarisation, I think both means that we have many states that are politically uncompetitive that have become kind of laboratories for really sweeping laws on abortion. It also, I think, has spilled over to the US Supreme Court, which, and to the broader legal community, the conservative legal movement will undoubtedly celebrate the reversal of Roe as kind of long overdue. And the Supreme Court is not worried about, in part about the its legitimacy or the consequences of an overruling because it’s confident that within its own legal community, the decision will be welcomed. State polarisation is another piece of this. This is a graph of who controlled state legislatures.

As you can see, there were states that you would not expect to have democratic majorities that did pre 2010, right? You see Mississippi, Louisiana, Alabama, Arkansas. So it took a long time, particularly in the South for states that had supported Democrats in the kind of Dixiecrat pro segregation days to switch to being Republican controlled. But once that happened, you had a new incentive structure where essentially, state legislators were worried more about primary challengers, than about general election, and therefore were willing to pass more and more sweeping abortion laws. So this polarisation affects our state politics, it affects the court, and it affects national politics of course, as well. This, I think, also led to some of the structural changes we’ve seen. This is what I really focus on in the book that I have coming out. The anti-abortion movement was not just interested in having Republicans elected so they could put the right people on the court from the movement standpoint, they were also interested in exercising more control over the Republican party. They did that in several ways. They hold, for example, Jim Bopp, who’s pictured here, the General Counsel for the National Right to Life Committee has been at various times counsel for the Republican National Committee, but they also tried to change the rules of campaign spending.

The idea here would be that one, this would help more Republicans get elected because Republicans tended to be better at raising money. And two, that it would matter how to change where the money came from. So if more money came from outside spending, right from superpacs and nonprofits rather than from parties, that would make it harder for the kind of traditional party leadership to get rid of populist candidates with strong anti-abortion positions. So think of someone like Pat Buchanan or even Donald Trump. So for decades, really the anti-abortion movement was heavily involved in litigating cases about campaign finance, and in particular about outside spending. Bopp was the person behind much of the litigation of Citizens United versus FEC. You have “Hillary: The Movie” here, which was the film at issue in that case. And so how we got here is partly about the polarisation of the country, and it’s partly about changes to everything from the way election spending is conducted to changes the way the Supreme Court functions, changes in the way we talk about the First Amendment, changes in what the Republican Party stands for, right? And whether it’s traditional leadership has been kind of swept away and replaced by something else.

And then of course, there’s just this simple change to the Supreme Court because none of this was inevitable as far as the court was concerned. Anthony Kennedy retired in 2018 and was replaced by Brett Kavanaugh. And then of course, states responded with more sweeping laws, believing they had the Supreme Court in their pocket. And Amy Coney Barrett joined the court in the fall of 2020. And with Barrett, the court gained a kind of conservative super majority that meant that even if one justice, and in this case that’s usually Chief justice John Roberts said second thoughts about overruling Roe, it wouldn’t matter, because there would be a solid five votes to do so anyway, all of that wasn’t inevitable, right? If Ruth Bader Ginsburg had died later or retired earlier, or if Donald Trump hadn’t been elected, we wouldn’t be here. But it’s still worth pausing to think that how this happened will reverberate outside of the abortion context, right? So changes to campaign spending or changes to the GOP or changes to laws on abortion even will have ramifications beyond just abortion itself.

So I’ll pause there, I’m happy to take questions, but I think it’s worth seeing that these changes will affect more than just abortion. So while the abortion piece of the story is important, the history will, I think, reverberate more broadly than that.

• [Wendy] Thank you so much, Mary.

• [Mary] Of course.

Q&A and Comments

Q: [Wendy] And while we wait for some questions to get in, I will start us off, what does it mean for other more progressive rulings on the court, on terms of gay marriage, in terms of interracial marriage, in terms of a lot of landmark rulings? What do you think will happen if Roe v Wade is overturned?

A: Yeah, so the court, so it’s worth sort of thinking about what does this draught opinion say, right? And I can talk a little bit about that and then I’ll answer the question. So the draught opinion says there is no right to abortion. And the way we know this is because it isn’t mentioned in the text of the Constitution. And then beyond the text, what we do is look at roots that are rights, excuse me, that are deeply rooted in history and tradition, right? And the court says to look at that, we evaluate the history of when the part of the constitution was written. So here we’re talking about like mid to late 19th century, and the court says, back then nobody thought there was a right to abortion, back then people were criminalising abortion. So clearly there can’t be a right to abortion. And then I think Justice Alito realises that, of course, what I just said applies to a lot of other stuff. So obviously in the late 19th century, there was no marriage equality, right? There was no same sex marriage. And in fact, states were just beginning to not only punish sodomy, right? So oral or anal sex, they were beginning to make that specifically about people who were gay and lesbian, not just anyone doing those acts. It was certainly true that interracial marriage was illegal in the 19th century. It’s true that birth control was illegal at the state and federal level in the 19th century.

So the opinion, the draught opinion recognises this. And then Justice Alito essentially says, well, look, you don’t need to worry about any of these opinions that were decided before Roe, right? Meaning birth control. He specifically doesn’t say anything about the stuff that came after Roe, which is all the LGBTIQ stuff. Like you can’t criminalise same sex intimacy and you can’t ban same sex marriage. So I don’t even know if the opinion tries to close the door on that sort of challenge. There’s a little bit of an effort that Alito makes, which is essentially to say, look, abortion is different because abortion is the taking of a foetal life, and that’s not an issue in same sex marriage. And that’s certainly a possibility. I think we’re likely to see other justices, like Clarence Thomas actually potentially suggests that abortion is unconstitutional, right? That abortion is the taking of the rights of a rights holding person in the womb, that it right violates that person’s due process in equal protection, and that as a result, it has to be illegal everywhere. So the court may kind of lean on that to say, look, we, maybe you’re going to open the door to banning abortion all over the place, but we don’t want to open the door to these other things. But I think it’s worth emphasising that Alito definitely doesn’t say clearly that anything involving LGBTQ rights is safe. He says essentially like, we’re not going to overrule the birth control opinions. But maybe that’ll change in the final analysis.

Q: [Wendy] Thank you. And you mentioned just now about the rights that a foetus would have. Can you talk a little bit more about that? For example, if we’re going to overturn Roe v Wade saying that a foetus has rights, will that foetus have to pay taxes? Will they be entitled to free healthcare? Where does that kind of begin and end?

A: Yeah, well, at the beginning the court is not going to probably say anything about that. They’re going to just say states can like figure out if they want to say foetal personhood is a thing, and like they can work that out for themselves. And there are a few states that have already done that. Like Georgia has a bill that would go into effect if Roe is gone saying essentially we’re going to ban abortion at six weeks, and at six weeks, personhood begins. And they try to work out what that means for things like child support or inheritance and intestacy. But I think it’s fair to say that there’s a lot of details that remain to be worked out. If the Supreme Court went down that road, the arguments already been made by some folks who were lawyers in the anti-abortion movement that essentially in the 19th century when the 14th Amendment was written, people meant the word person to include life in the womb. And that therefore, abortion is unconstitutional. I think the court may be reluctant to go there because it’s complicated, but I mean, they may not care because the working out the details of like, what does it mean that this entity is a person would be partially left to other actors outside of the court. But I’m not expecting the court to say anything about that right now. I don’t know, in five or 10 years from now, that’s a different story. That’s much, I think I don’t know if that will happen or not, but I think it’s a possibility.

• [Wendy] Got it, thank you. I believe you showed us a graph just a moment ago of the fact that in 2019, over 70% of people were opposed to overturning Roe v Wade.

• Yep.

Q: [Wendy] If the majority of public sentiment is not in favour of this, can you explain some of the logic behind the justices deciding to do it regardless?

A: Yeah, well, I mean, the opinion has this, so the opinion will say basically, look, it’s not our job to do popular politics. We’re not partisans, right? I think most people feel that to be weird because the Supreme Court doesn’t usually do things that are really out of step with popular opinion. And when it does, there’s historically been lots of backlashes, right? So if you have this intuitive sense that like the Supreme Court usually doesn’t ignore other people’s opinion on whether something is or isn’t a right, you’re correct about that. Like that’s usually how the Supreme Court historically has behaved. So I think why it’s happening is that the court, people on the court now don’t believe anything will happen to them if they do this. So they don’t think they’ll be impeached, they don’t think they’ll be court packing, they don’t think they’ll be court reform. They don’t think anything like, they’ll be fine. And they’re not worried about losing their professional standing because they have their own kind of legal community, the conservative legal community that will celebrate this. So, the draught opinion said basically, look, we don’t care what you think. Like people don’t like this. Polling tells us people don’t like this. Like we don’t care, basically that’s, we’re not here to care and we don’t care. And that’s also really striking. I mean, I haven’t seen that happening so clearly as a historian. And I mean, the reason it’s striking is of course, if that’s true, right? If the Supreme Court really doesn’t pay any attention to moving away from popular opinion, that of course could have effects on lots of other issues too, right? Not just this one.

• [Wendy] Thank you. We have a large international audience and we’re getting a few questions from people who are less familiar. If you could just briefly go over who Roe and Wade are and just the origins of the original case, that would be great.

• Sure, yeah. So Wade was just the attorney general of Texas. So this was some attorneys challenging the constitutionality of Texas’s law, which at the time said, abortion is a crime unless the life of the pregnant person is at risk. Roe was obviously a pseudonym. The real person Roe was Norma McCorvey, who was a woman from Texas. She had already had several children she’d put up for adoption, she was pregnant again and didn’t want to be and tried to seek an abortion. Her lawyers interestingly didn’t want her to have an abortion because they wanted this to be a test case, right? They wanted her to be denied an abortion and I think at the time she was seeking the abortion, she had probably progressed past a point where it would’ve been legal anyway in her pregnancy. So she had the baby, the of the proverbial Roe baby, who’s still a real person, Josh Prager’s book on this is great on that point. And then later in her life, McCorvey became kind of at various points of pro-choice activist, then later a pro-life activist. She was very kind of good at monetizing and trading on her symbolic value. But that was, those were the major players in the case. Of course, it’s worth emphasising, right, that Roe isn’t the law even now, it’s Roe as modified by the court in 1992. But Norma McCorvey I think is still a powerful symbol of how abortion in the US works.

Q: [Wendy] Thank you. We’re getting a question that if Roe v Wade is changed in any way and abortion is made illegal, can a woman who gets an abortion abroad or I suppose anywhere be prosecuted?

A: Well, so at the moment there are no state laws that would prosecute women for getting abortions, including in other states or countries. That is not a settled issue though, right? So there’s a wing of the anti-abortion movement called abortion abolitionists, who essentially believe that in order to treat foetal life equally, you have to treat abortion as murder and you have to punish people for having abortions, not just performing abortions. And so they support the idea of punishing women too. And we recently saw the state of Louisiana had a bill that went pretty far that would’ve punished women before it was killed. I don’t think that states are going to do that soon, but I think the challenge for states is going to be medication abortion, right?

So most abortions in the United States now happen through pill, and people in the US, even if Roe is overturned, will be able to get those pills in the mail. There’s organisation called Aid Access that will send those pills to people and will do so from India. So it doesn’t matter if you’re in a place where abortion is illegal, that means that there are going to be a lot of scenarios where states are going to want to prosecute someone for abortion. They’re not going to be able to get the doctor, they’re not going to be able to get the pharmacist, 'cause those people are going to be in places that are not going to send the person over to face criminal charges. So the only option in many cases is going to be to punish the person who’s pregnant. So I think that there will be a lot more pressure on states to do that, but that’s not something that’s going to happen on day one when Roe is gone.

Q: [Wendy] Thank you, we’re getting a few comments about how abortion wasn’t originally written into the Constitution, but neither were women or the internet like that, that we have today. Can you speak a little bit to the kind of fundamentalism of using the Constitution as the end all be all by which to build our government and how that’s changed as we have become a more modern society?

A: Yeah, I mean, one of the things I think that this should make you think, so one thing is obviously if you ask most Americans, like how should judges interpret the Constitution? A lot of them historically have liked the idea of like looking at what the Constitution originally meant. And I think the reason they liked that is they didn’t like the idea of partisan judges. But now the Supreme Court’s popularity is like worse than it’s ever been. And it’s because people are, I think, becoming aware of the fact that the Supreme Court can be partisan and look at what the Constitution originally meant. And that looking at what the constitutional originally meant just isn’t that satisfying, right? I mean to say essentially we’re going to look at what people thought the Constitution meant at a time when women couldn’t vote and when people of colour in practise, if not formally couldn’t vote, just sounds bad to a lot of people, right? I mean, that doesn’t sound like what we want to do.

Now, obviously, you could theoretically amend the Constitution, there are other ways you could go about things, but I think one, it will make people rethink well, like if we care about the Constitution, how should we actually interpret the Constitution? If our answers are going to be dictated pretty much only by people who had rights in the late 19th century, there’re going to be a lot of people who are left out of that, right? That’s going to be lots of people of colour, it’s going to be immigrants, it’s going to be women, it’s going to be LGBT, there’s going to be a lot of people. And then I think the other thing to suggest is that when you think about who has rights relying on the court to interpret the constitution may not be the only way you should go too, because this is where you can end up, right? What’s happening now. But yeah, I mean, I agree that the idea that looking at late 19th century United States as the beginning and end of rights seems kind of incongruous to most people.

Q: [Wendy] Going back to your earlier point about how even if abortion is banned, people will still be proceeding pills from overseas and whatnot. So do you think at all, will banning abortion decrease abortion at all? Or will it just make it more difficult and less safe?

A: I mean, it might decrease it some, I mean, we’re going to, one problem is we’re going to have a hard time knowing, right? Because people who have abortions in red states are not going to tell researchers that they’re doing that, right? It’s going to be hard to track. But there may, there’s some research like the Turn Away study, which was done by researchers at the University of California San Francisco who’ve shown that sometimes when you make it hard to get abortions, a percentage of the people who want to have abortions won’t have the abortion. So there’ll be a subset of those people. There’ll be other people who probably have abortions anyway. And where there will be potentially less safety, in part because people will be doing a lot of DIY self-managed abortions. We have research to suggest that telehealth abortion can be very safe, but that’s if it’s done in a particular way and not everyone who will be having abortions in a postal United States will be doing that. And we know that there’ll probably be some spillover effects for people who are not even having abortions, right?

People who are having miscarriages, people who are having ectopic pregnancies, because many of these states that are having criminal abortion laws have very narrow medical emergency exceptions. There are several people running for office now in states like Georgia and Idaho who don’t want to have any emergency exceptions. So in other words, if someone would die, if they didn’t get an abortion, then the law would just say, okay, you have to let the person die. Even in states where that isn’t true though, many of these states have really severe penalties for people who perform abortions. And I think that we’ve seen already that there’s a chilling effect there because doctors are not wanting to find out that their interpretation of the medical emergency is different from a prosecutor’s and that therefore they will face life in prison or felony charges or lose their medical licences. So I think the potential risk is not just to people who have abortions or seek abortions, it’s probably to lots of other pregnant people too.

Q: [Wendy] Thank you. Do you think, how do you think this will affect the future of gender equality, women’s rights and all of that?

A: I mean it’s really, that’s really unpredictable, right? Because people will often ask, did Roe cause a backlash, right? And by which they mean like, would we have the religious right without Roe? Would we have the Republican party we have without Roe? And I mean, it’s hard to answer that question because if you imagined this as sort of like a TV show, the Supreme Court was one character in the TV show. Lots of other people contributed to where we are now, not just the court. So if the court overrules Roe, that could produce a really significant backlash among people who are concerned about equality for women and equality for other people who can get pregnant. But that’s going to be unpredictable and complicated just as the reaction to Roe is unpredictable and complicated. So I think that there’s a real possibility of that happening, but I think exactly what that looks like will depend on how much people care about this issue. And it’ll depend too, I think, on what states actually do in response to this issue. Like, in other words, just how extreme are the things we’re seeing, what actually happens when states implement these laws? And I think that’s the sort of thing that will be difficult to predict until actually things happen on the ground.

Q: [Wendy] Thank you. I’m going to take a back a bit again for our international crowd. People are wondering, why is this suddenly up for debate? Did somebody take a case to the Supreme Court or was this initiated from within the Supreme Court? 'Cause they have a majority. Can you explain why we’re talking about this now?

A: Well it’s basically 'cause the Supreme Court changed. So there are always cases that are taken up to the Supreme Court. And this Mississippi case that the Supreme Court is hearing now was one of those, just the specifics of the case. It was a case about a ban on abortion at 15 weeks, which was when Mississippi said foetal pain was possible. Just as an aside, most researchers don’t think that’s true. And that foetal pain usually begins in the third trimester, not 15 weeks. But this was just the really, I think the first case the court could have taken. There were tonnes of other abortion cases that were designed to be the case that overturned Roe, but this Supreme Court seems to be in a hurry to overrule abortion rights in the United States, right? So what changed was that there are now six conservatives on the court instead of five. And this was the case that was the first in the pipeline, and so they took it, but there was nothing, I think there’s nothing special about this case. I would say, like if you had asked me two years ago, what is the case you think that would be the most effective for people wanting to challenge Roe? I would never have picked this case. This is just the joke about people will say with dating, there’s Mr. Right and Mr. Right Now, this was Mr. Right Now, right? This was just the first thing that was available to them.

Q: [Wendy] Love that analogy, thank you. Can you talk a bit about, briefly, or recently there was news that Biden and Congress would try to codify abortion into federal legislation. Can you talk a little bit about what that means and why that failed and other potential options to get that done?

A: Sure, so yeah, there’s a bill before Congress called the Women’s Health Protection Act, which is one of several attempts there have been to codify abortion rights. It failed just because there aren’t the votes right now, the Democrats have a very slim majority in the Senate and it includes some Democrats who didn’t vote for the bill. There are also several pro-choice Republicans who didn’t vote for the bill. And I think there’s some prospect of a federal statute to codify abortion rights going forward. If you imagined Democrats doing better, maybe not in 2022, but down the line, I think the challenge is that what if that happens, there will be a challenge to that statute, right? So there will be conservatives saying this federal statute is beyond the scope of Congress’ power. And then that question will ultimately go up to the same Supreme Court that just overturned or will overturn Roe v Wade. So a federal statute is an option, but I think it’s fraught with peril. And it’s also worth emphasising that Republicans have said that if they win Congress in 2022 and they win the White House in 2024, that they’re going to pass a federal law banning abortion. Right, so kind of going the other way. So then states that were progressive states couldn’t allow abortion. So I think the federal statute solution is probably not going to be like a cure-all. And that if it is, it’ll probably ping pong, back and forth depending on who’s in control of government at any one point in time.

Q: [Wendy] Thank you. Here’s an interesting question. Can you help us understand how states could ban abortions? Because taking a life is unconstitutional yet still allowing for the death penalty?

A: Yeah, I mean this is a function I think, of what the modern pro-life movement means. So there are definitely people in the anti-abortion movement who would I think, agree with the premise of the question and say you, the death penalty is unconstitutional too, right? That you can’t, the state can’t take a life, the state can’t outsource to other people the ability to take a life. Now, states would essentially say that it’s almost like you can waive your right to live, right? Like if you were no longer innocent as you would be in the womb, I think the argument would be then you’ve lost the right to live. And so, people who are subject to the death penalty are not innocent and therefore have forfeited whatever right they otherwise would’ve had. But it’s also a function of, who is the modern anti-abortion movement? And it’s no longer what it once was, which was, more politically diverse. So there were Democrats and Republicans, it was the strongest in the Northeast and Midwest. It was predominantly Catholic. It’s now the strongest in the South, it’s now the strongest in white evangelical Protestant communities. And those tend to have strong kind of law and order pro death penalty politics, as well as strong anti-abortion politics. So it’s kind of an artefact of where the United States is right now, but it’s not inevitable. And there are people who are opposed to abortion in the US who don’t take the same kind of view on the death penalty.

Q: [Wendy] Thank you. I’m sure you hear this question a lot. We all hear this question a lot periodically. What about packing the court as an option and enlarging the number of Supreme Court justices we have, what is the feasibility of that? Why hasn’t that been done before on either side?

A: I mean, so it has been done right? The Supreme Court didn’t always have nine justices. So historically, people have added justices to the court. So there’s nothing that weird about that as an idea. That said, it hasn’t been done recently. The closest we’ve come was in the 1930s when Franklin Delano Roosevelt was considering adding justices to the court. I think there’s a concern about kind of like racing to the bottom right, that Democrats would add justices and then Republicans would add justices, and then it would just sort of, it would be kind of the ping pong effect I was describing with federal legislation. There have been other proposals that are, I think more have historically been more popular, like having term limits for the justices. The difficulty seems to be that there’s at least a good argument that you need a constitutional amendment before you could have term limits. With adding justices, you wouldn’t, right? That would just take an act of Congress. There hasn’t really been the political will until now to do that. But you could imagine, I think in a post Roe United States, if there’s enough of a backlash, people revisiting that because you may see some Democrats saying, well sure it would ping pong back when Republicans take power. But otherwise it’s going to be bad for a long time because we’re going to have a conservative super majority for a long time before anything changes.

Q: [Wendy] Thank you. Can you talk a little bit more about the leak and why maybe this was leaked and why it was leaked now and for what purpose that could be?

A: Yeah, I mean obviously, I don’t know. I think when kind of Supreme Court watchers were thinking about this, I think the first thought was either that it was someone on the liberal side or maybe Chief Justice John Roberts, who were saying essentially, well, okay, you people on the court are saying you don’t care about what people think and you don’t care about public reaction. Let’s see if that’s true once the public reaction starts happening. The more I thought about it, the more I didn’t think that was what it was because I didn’t really see what benefit there would be for liberals in doing that. I think if anything, it will kind of dull the reaction because people already will know what’s coming. So I think it’s more likely that maybe this was someone on the conservative side who leaked this to essentially shore up conservative votes. So to essentially say, okay, look like this is already out there and if you change your vote, you’re going to look like you did it because of political pressure. If they were worried, for example, that some of the conservative justices were going to do something like uphold this specific statute, but not go all the way to getting rid of Roe. But obviously, I don’t know, right? I mean that’s just speculation and the leak itself is extraordinary. So when I talked before about the Supreme Court being much more partisan and much more detached from popular opinion, it also seems that the sort of like civility and norms that have governed the Supreme Court for a long time have really eroded too.

Q: [Wendy] Thank you. Here’s a question from someone about an earlier point you made on the innocence of the foetus when we were talking about the death penalty. If the foetus is threatening the life or health of whoever is carrying it, can to be said to be innocent and do also someone else is asking, in that case, do we not value the life of whoever is carrying the foetus?

A: Yeah, I mean I think that that’s, those are both really important questions. I mean, I think that the idea that foetal life is innocent is sort of not particularly because, I mean, it’s not, the argument has to be not only that foetal life is innocent, but that it’s sort of supremely innocent, right? That it’s more innocent than the life of the person carrying the foetus or whatever. And so, I don’t know, I don’t think states would view a foetus is not innocent if it’s life-threatening, right? They would say essentially that there are no bad guys there, if you will. That that’s a situation where everyone is a victim. I think that one of the most striking things to me is not just that states are saying essentially we recognise foetal personhood and they don’t think as much about what that means for people carrying or people who are pregnant. I think it also is that there’s no sense that those people are entitled to anything if they give birth, right? So again, that’s not historically inevitable. It’s not true everywhere either. But in the United States, the states that are the most likely to ban abortion are the states that have the highest rates of maternal mortality, the highest rates of childhood poverty and childhood mortality and bad outcomes for children. And so I think that’s particularly striking, right? That the state doesn’t seem to be, seems to be wanting to compel people to have children and then not interested in helping them with the children after the fact, which I don’t think is an inevitable way of thinking about this issue if you’re opposed to abortion. But it’s the way this is boiled down in the US and I think that’s likely to have particularly unfortunate effects.

Q: [Wendy] Thank you. I think we have time for a couple more questions. So here’s another one, which is pretty fun. Why or how is the judiciary partisan at all? Should it not be impartial?

A: I mean, sure, right. It’s just, if you think about, So I think there are two points, right? One is, I don’t know if it’s possibly entirely impartial, right? Because you bring who you are into the room as a judge. The other point is a historical point, which is if you look at how Supreme Court confirmations have changed over time, I think back to the 2020 election when Donald Trump would go to rallies for his reelection campaign and people, he would talk about what would be Amy Coney Barrett’s seat and voters at rallies would shout, “Fill that seat. Fill that seat.” The idea that that is in partisan, I mean, Trump would campaigned in part in 2016 and 2020 on the idea that his judges would overrule Roe v Wade and Joe Biden campaigned in part in 2020 on the thought that his judges would not, right? So the court has been politicised by the presidential election process. It’s been politicised by the way nominations work and by the parties that contribute to them. And so, I don’t know, I think courts could certainly be more impartial than they are at the moment.

But I think that there’s been pretty clear historic trends in the US away from courts that are capable of being impartial or being nonpartisan. And I think it’s reflected in the way Americans view the Supreme Court. So historically, the Supreme Court has been the institution in the United States that’s had the most support, right, by comparison to Congress or different presidents. And that’s probably still true, but the court’s approval rating in the US is now below 40%, which is by far the worst it’s ever been. And the reason seems to be that Americans are no longer convinced that the court is capable of being impartial and that people are convinced that the court is partisan. And I think in part that’s just because of the way the court is doing business. It’s doing things that are big and explosive. It’s doing them quickly and it’s doing them quickly immediately after its partisan composition changes. There may be reasons the court thinks it’s doing that, that aren’t about partisanship, but it’s not surprising that voters are looking at this and saying, well, it looks partisan to me. So I think there’s now sort of a vicious cycle where the court is treated as political by politicians, it’s viewed as political by voters. And that kind of reinforces sometimes I think, the way the justices do what they do.

Q: [Wendy] Thank you. And last question, for those of us who are scared or disturbed by what is going on, what can we as citizens do at this point? Is there, I mean, short of moving to a blue state if already.

A: Yeah, I mean, we can do a couple of different things. I mean, I think one big point here is that in the short term, all the action is going to be at the state level, right? So for example, if you’re in Michigan right now, abortion’s on the ballot, right? There’s going to be an, or if you’re in Kansas, right? Voters are going to get to decide whether they want to have abortion access or not. I think that kind of direct democracy should be looked at in lots of states because there are plenty of conservative states where voters don’t want to have outright abortion bans and would probably like something more grey area. And it would be good if you could kind of disaggregate that from which party people vote for. I think paying attention to who you vote for in your state legislature or who your governor is, even who your attorney general is, who your sheriff is, because those are the people who are going to decide how many resources to commit to enforcing these laws. And they’re going to be the people who decide things like, are women going to get punished? Or what does abortion mean, right? Does abortion include IUDs?

Does abortion include, does abortion mean that you can’t store extra pre embryos if you’ve had IVF, there are going to be a lot of questions like that that will be decided at the state level. I think the other thing people can do is make this issue more of a priority when people vote. So for example, when you look at polling, PBS and NPR did a recent poll essentially suggesting that most Americans don’t want abortion to be criminalised, but that very few abortions Americans thought that it should be a priority. So if that changed, right? If a lot of voters said, when I go out and vote, it’s abortion’s going to be my top four issues. You would imagine that policy would change because now I think many politicians think that the only people who will actually vote based on abortion are people who generally are opposed to abortion and who care a lot about the issue, which is not that many people. It’s probably like 20% of Americans. So if more Americans said, this is not my only issue, but it’s an important or top issue, you imagine politicians would change their tune. So those would be things I would say, think about getting it on the ballot. Pay attention to your state elections and then if you think it’s important enough, do you rejigger your priorities when you vote?

• [Wendy] Thank you so much, Mary. This was absolutely incredible and incredibly informative.

• [Mary] Thank you.

• [Wendy] And I’m going to hand over to Trudy who runs lockdown with us and she will wrap up for us.

• [Mary] Okay, sounds good, thanks.

• Thank you very, very much professor Ziegler. I’m actually in London and I know you’ve had an audience all over the world. What happens in America is of interest to all of us and I think what you’ve shown us very clearly are the ramifications of this and the tragedy as I see it, is the polarisation of politics. And I dunno what we’re going to do because what’s happening in America is also happening in Britain. So, but you’ve been so clear and you’ve given such concise answers and I guess at least as if we ask the questions, that in a way is a kind of activism, but I think we need a lot more of it. So thank you so much for giving us your time, goodnight.

• Goodnight everybody, thank you.