The Abortion Debate’s New Urgency

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Hi, this is Radio Atlantic.

I'm Isaac Dover.

In the past few weeks, states across the country have passed a series of unprecedented anti-abortion bills.

In Alabama, abortion is now banned under state law, without any exceptions for rape or incest.

Georgia, Ohio, and Kentucky have all passed so-called heartbeat bills, making abortion illegal six to eight weeks into pregnancy.

On Wednesday, the Louisiana legislature passed a heartbeat bill of its own, this one without any exceptions for rape or incest.

In Missouri, abortion has been outlawed after eight weeks, and on Friday, it may become the first state without any access to abortion, as a clinic may be pressured to close.

All of these bills have been challenged in court.

And regardless of state law, abortion is still legal in the first trimester because of Roe v.

Wade.

Of course, that may be the point, to conflict with and eventually overturn Roe v.

Wade.

With me to discuss all this is Emma Green, staff writer here at The Atlantic, where she covers politics and religion and has gone more in depth on this issue than most of the people out there.

Emma, thanks for joining us here on Radio Atlantic.

Thanks so much for having me.

So we've seen this sudden wave of anti-abortion bills all across the country.

What exactly is going on here?

I think there's a clear goal, and we've even heard it directly from the lips of the legislators who are trying to put these bills in place.

They want their bills to be the ones that eventually wind their way through the court system up to the Supreme Court and can be that fatal blow against Roe versus Wade.

There are conflicting theories in the pro-life movement in the United States over the right legal tactic to undermine Roe and all of the jurisprudence that's come after it.

Some people think that the Supreme Court, which is now a conservative majority, solidly thought to be skeptical of Roe and abortion jurisprudence.

They think they'll be more incremental, that there will be death by a thousand cuts, a lot of limits and restrictions walking back some of the important frameworks that were laid out several decades after Roe in the very important case, Planned Parenthood v.

Casey.

But there are others, like the legislators that we saw earlier this month in Alabama, who think that they can take a direct strike at the heart of Roe v.

Wade.

That's why they passed this total abortion ban that doesn't have exceptions for rape or incest, because they want to give a clean case, a clean bill, as one of the legislators said, for the Supreme Court to consider maybe striking down Roe in its entirety.

Aaron Powell, and is there any level of communication between the states on this, between the advocates on this, looking for what

the right way of going about this might be, which case to go at?

It reminds me a little bit of what's gone on with gerrymandering laws around the country where a number of different groups have different

cases that they favor of the ones that they wanted to go to the Supreme Court and when they wanted to do it.

And there was some dispute last year about the case that went to the Supreme Court.

Then people thought it wasn't the right case to bring, and in fact, it did not get the decision that anti-gerrymandering people wanted.

Now, there are more cases waiting in the Supreme Court this year that there was some dispute also about those, of which one to go about it.

But the groups in that case weren't really talking to each other.

Are these governors, are these legislatures, are these anti-abortion advocates in communication as they figure out what to do here?

So, yes and no.

Definitely, there is a nationally coordinated effort by some legal groups that have this national perspective that have created model legislation that go to the states and consult with legislators who are interested in putting forth abortion restrictions.

You see also a sort of mirroring or mimicking effect where certain types of restrictions will be on vogue during certain legislative sessions and will sort of cascade across the states.

So for example, the heartbeat bills that we're seeing now, which generally ban abortion around six or eight weeks, have proliferated in recent years.

This is not the first wave of them.

The first of those was actually in Ohio several years ago, sort of pioneering that model.

But we've seen since that Ohio legislation, a proliferation of them, and you can see that the legislators are watching each other across the states.

I think there's also, though, a really important grassroots effort to the pro-life movement.

One of the things that often isn't given a lot of credit is the fact that there are many local level organizations from the political level, from the fundraising level, and from the legislative level of people who are trying to come up with new and different ways to tackle this issue.

And that's why you see some degree of novelty in the approaches that are taken across the states.

For example, we just saw this week from the Supreme Court a sort of middling decision at taking up some parts of it, refusing to address other parts of it on this Indiana legislation that came out a few years ago, which both required a burial or cremation for fetal remains after an abortion or miscarriage, and also banned abortion based on discriminatory factors like race, national origin, gender, disability diagnosis, that sort of thing.

So this Indiana legislation, I think, is important first because it was thought to be maybe the big test case, the really big one that the Supreme Court would take on this term, and it didn't really take up the constitutional issues.

And we don't know why that is, right?

It's not when the Supreme Court doesn't take it up, they don't say, well, we just didn't want to get into this issue right now or whatever.

We just know that they didn't take it up, basically, right?

You know, actually, in this case, we have some hints because there were two fairly substantive dissents on the court's decision of how to handle these cases, one from the left wing of the court, one from the right wing of the court.

Clarence Thomas wrote this very long, in-depth treatise, essentially talking about the eugenic potential of abortion and brought up the Indiana law as basically a bellwether of where the legislation on abortion might go and said, okay, the court's not ready for this, but we need to be in the future.

And then said, the Constitution is silent on the issue of abortion.

So from the right wing, we actually did have an indication that, okay, the right flank sees that this is not the right moment, but they are ready to strike.

And we've seen a lot of rumblings along those levels.

So as far as Supreme Court tea leaves, we actually do have something of an indication of the politics that we're at work here.

But these Indiana bills also really matter because they are an example of the novelty and the pioneering efforts that certain legislatures take up to try to find new ways, new doors for taking down Roe, for chipping away at these abortion standards and protections that have been laid out by the Supreme Court.

And I personally think that this concept around discrimination and abortion on disability and sex and race is actually going to start proliferating because it plays at sort of the tension that's at the heart of the abortion debate in the United States.

Aaron Powell, Jr.: And what is that tension?

Well, you know, I think there's something deeply uncomfortable for progressives around, for example, disability based on personal characteristics.

You have the progressive vanguard against ableism, against sexism, against discrimination based on gender identity, certainly against racial discrimination, discrimination against immigrants.

All of these things are standard progressive values.

And what we see from the pro-life movement is this kind of canny use of that language, those instincts around discrimination, and translating that into this issue that progressives find to be anathema, which is protection of the unborn.

We actually saw this in the preambles to some of the state legislation that came out this month in Alabama, for example.

The whole preamble to the bill, which bans abortion in the state of Alabama, effectively goes over the greatest genocides and human rights violations of the past century.

It brings up the Holocaust, it brings up Rwanda, it brings up Stalin, all of these horrible things that people of goodwill and certainly progressives would agree are bad, and puts abortion in that category.

So I think this rhetoric that's then translated into law is a sort of savvy way of trying to raise questions about the nature of abortion and also potentially put progressives who are on the offense and the defense on these pieces of legislation, puts them on the spot.

I just want to be clear before we go on, talking about the long-term legal aspects of this, the political aspects of it, we're going to get into in a moment.

But at this moment, abortion is illegal in Alabama because of that bill, is illegal in Missouri, essentially, because what it's done with the clinic being shut down.

So what's important to remember is that though these state-level bans have been put into place, they are going to be stopped in their tracks by litigation before they can ever take effect.

And any lower court judge who doesn't want to lose their seat, basically, is not going to be able to uphold these pieces of legislation because that flies in the face of Supreme Court precedent.

We know that based on the way the laws are structured in the United States, the legal system is structured, federal law both supersedes state law, but most importantly, the interpretation of the Supreme Court is binding on all lower courts and on all laws in the United States.

So because we have those Supreme Court precedents, these state laws are basically dead in the water before they ever go into effect.

What's important about them, why they matter, is first that they create a lot of noise and movement in the legal system, sort of those doors that I was talking about before that the pro-life movement is looking for to create challenges here.

And the second is that in the meantime, between the court challenge, the litigation, the eventual decision that shuts these bills and pieces of legislation down, you can have real-life consequences for abortion access.

So in Missouri, for example, the final clinic that's operating and providing abortions is almost certainly going to stop operating later this week.

And that's because of not only the legislation that's come out of Missouri, which has been very tough on abortion, but also sort of the structural and atmospheric situation there that makes it very, very difficult for abortion clinics to operate.

Right, so that even though it's still legal in Missouri, it is not available, which is

the issue that maybe a lot of these states could lead to with their own moves, right?

That's right.

Legal in principle, not available in practice.

Okay, we're going to take a short break, but when we're back, we'll discuss where this all leaves us going into 2020 and how the politics of it are influencing the decisions being made.

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And we're back with Emma Green.

Emma, let's just go back a little bit here.

We are talking about Roe v.

Wade and what might happen to it.

That's a decision from 1973.

How does

what happened over the course of those 40 plus years lead us to the situation we're in now on the abortion issue?

There's an interesting echo between what we're seeing today, the state-by-state action, and what was happening in those years leading up to Roe.

You saw some legislation that was put into place in different states, New York, California being landmark examples, that tried to ease up on the illegality of abortion, create some space for abortion to be performed.

And you actually saw, I think, a sort of moderate coalition around this.

One of my favorite examples of this is the fact that Ronald Reagan, as governor of California, signed a law that essentially eased up abortion restrictions in that state.

And then Roe versus Wade comes down.

This is a controversial decision that effectively establishes the constitutionality of abortion up until the viability of the fetus, and then additionally allows states to regulate after after that point of viability, but definitely up until the point of viability.

And this is a sort of marker moment, a lightning bolt in the coming together of a conservative coalition that was joined together by the common cause of opposing abortion.

You see evangelicals from the right sort of coming late to the cause, joining in their Catholic brethren who had been against abortion for many, many years and had been at the vanguard of this issue, joining together to create what we see today as the contemporary pro-life movement.

Now, just because Roe v.

Wade came down doesn't mean that it was one and done and over.

In fact, there were many, many questions about how Roe should actually be implemented.

And so in the early 90s, you see this pivotal moment where everybody thought that the Supreme Court, which had Anthony Kennedy this consummate swing voter on it, they thought that the court was going to backtrack and overturn Roe, but in fact, ended up essentially confirming most of the basic constitutional principles in Roe and created a framework around it.

This is Planned Parenthood v.

Casey, the 1992 case, that many people overlook in today's battles about abortion, but in fact is maybe the most important precedent or most important decision for establishing today's constitutional principles and frameworks around abortion.

Why?

And then the

because it essentially allows courts to have a framework for evaluating whether a given piece of legislation actually violates Roe.

Roe is offered in this broad sweeping language around a theory of privacy.

It doesn't have a lot of tangibles around being able to say up or down, yes or no.

Does this piece of legislation actually violate the constitutional principle that's laid out in Roe?

And so Casey gives a test.

It essentially offers this language of undue burden, which we hear all the time from the court today.

This has been the basis for many victories on the pro-choice side in recent years.

Most recently in 2015, a Supreme Court decision called Whole Woman's Health v.

Hellerstadt shot down some abortion restrictions in Texas, and it relies heavily on Casey, this idea that you can't create an undue burden on a woman who's seeking an abortion because that, too, violates her constitutional rights.

So you have that decision, which is super important.

continues on being controversial marching into the early 2000s.

We see a lot of controversy over what is now referred to as partial birth abortion, essentially late-term abortion.

And now you have, since 2010 a wave of state-level restrictions that are trying to basically eat away inch by inch at the availability of abortion.

Texas is a pioneer in these, as we saw in that Supreme Court case, while Women's Health v.

Hellerstadt.

But we see this all over the country, states trying to create harder parameters around where you can get an abortion, often based on claims about women's health and protection.

And they essentially make it a sort of a shrinking availability that there are fewer places in the country and fewer clinics in those places where women are able to easily access abortion, especially later into pregnancy.

Aaron Powell, and as this is all going on in the political side of things, the issue becomes very clearly divided on partisan lines.

You're talking about Ronald Reagan, what he did as governor, easing some of the abortion restrictions.

And then by the time that he's running for president in 1980, he's running as an abortion opponent, George H.W.

Bush running as a supporter of abortion rights.

And one of the conditions that Bush had to meet in order to join the ticket as vice president was to change his position on abortion to match Reagan's.

That is as the Republican Party becomes where the anti-abortion advocates and supporters tended to fall, and the Democratic Party, obviously, then where the abortion supporters and abortion rights supporters tended to fall.

That got more and more the case over time.

There aren't many

abortion opponents left in the Democratic Party.

There aren't many abortion supporters or abortion rights supporters left in the Republican Party at this point, right?

Yeah, absolutely.

I mean, like so many issues in the United States, this has become so partisan and so divided.

We see people like Susan Collins and Lisa Murkowski, who both say that they are pro-choice.

They support abortion rights within certain parameters, who have been pivotal, for example, on Supreme Court nominations in the Republican Party.

So they still hold that marginal power by being some of the last Republicans in the national level roles who do support abortion rights.

But on the Democratic side, it's essentially an extinct species.

You see every once in a while a sort of Catholic or more conservative Democrat who might be hesitant on certain abortion-related measures related to federal funding or something else.

Tim Kaine is an example of this.

Bob Casey is a famous example from Pennsylvania.

The last truly stalwart pro-life Democrat in the Democratic Party from Illinois, Dan Lipinski, has been the target of an all-out assault from NARAL Pro-Choice America.

Even recently, we saw that the DCCC chairman, chairwoman Sherry Bustos, canceled an event she was going to do with Dan Lipinski because the pressure to not align the Democratic Party with a pro-life Democrat was so strong.

Right.

And that was a primary challenge that he faced last year in 2018 and

survived it.

The woman who ran against him then is running again against him, and it seems like that will become a focal point for a lot of Democratic energy.

You already have presidential candidates who are endorsing his challenger, Marie Newman.

So that's

the politics of this in the Democratic Party become very clear, and it also

gets to this point where after years of people saying they weren't going to have a litmus test on where people were on Roe v.

Wade, and it was sort of a wink-wink, but everybody knew if a Republican president were nominating a Supreme Court judge or most other judges, they were opposed to abortion rights.

And if a Democrat was nominating,

then that was someone who would support Roe v.

Wade.

Now, Democrats running for president more and more are saying openly that they will have a litmus test on this issue and

that there's no question about it.

Of course, Donald Trump Trump has made that very clear himself.

For you, there was this key moment in the 2016,

the third debate in 2016 between Hillary Clinton and Donald Trump when Hillary Clinton came out very far

for where a Democrat nationally had been on this issue.

Talk about why that happened and what it means to you.

So this third debate in October of 2016, this crucial moment when it still looked like Hillary Clinton was going to to cinch this presidency, there's this question that comes up around abortion, specifically abortion late in pregnancy in the third term.

And Hillary Clinton took a stance that has become increasingly popular among Democrats, which is to say, these are very personal decisions.

They often involve heartbreaking medical situations for women.

And she just cannot get behind a limit on abortion in the third trimester of pregnancy.

Of course, this is something that is deeply unpopular among Americans.

Even Americans who broadly support abortion rights in the first trimester are very uncomfortable with this idea of abortion in the third trimester of pregnancy, especially after that point of viability.

And Donald Trump, I think, saw an opening and really took it.

He described in graphic terms that were perhaps factually questionable what actually happens in an abortion that happens late in pregnancy.

But his spirit and the conviction behind his answer was very clear that he was on the side of the pro-life movement and he opposed abortion.

I have talked to so many conservatives, moderates, people who were not on the Trump train, who had maybe been willing to hold their nose and pull that lever for Hillary Clinton, who point to the third debate in 2016 as that Rubicon when they realized they could not vote for Hillary Clinton.

The Democratic Party was just too far from where they were on abortion, the issue that they care about most.

And they either voted for a third party candidate or went ahead and voted for Trump.

And I think we will see that dynamic on repeat in 2020, knowing now what we do even early into the race, that Democrats are basically all in for abortion rights.

They are pushing past one another, competing for that position of being the most supportive of the most expansive version of abortion rights.

I'm going to push you back here a little bit.

Do you really think that there are,

I know that I'm not doubting that that's what those people said to you, and that may be how they think that they are processing it, but that those people would have voted for Hillary Clinton or not voted for Donald Trump if not for that one moment in the debate?

It seems like

this issue is so deep set in politics that

people who identify very strongly about it

usually know where they're headed.

You know, I think that's true to a certain extent, which is people for whom the life issue is their number one issue, for conservatives, Republicans, they're going to vote for Republicans.

And that's because basically it's become clear that there is no home in the Democratic Party for pro-life people.

And if this is the issue that you prioritize above and beyond everything else, which is true for a segment of the populace, then you're going to be voting Republican.

I think the voter I'm most interested in on this issue is the voter who maybe is progressive curious.

They're very unsure about the Trump administration's immigration policies, the children in cages trope.

They're very unsure about the kinds of statements he's made about Muslims or immigrants or people of color.

They're not sure that the ethos of the contemporary Republican Party under Trump is something that fits them.

And yet, these are people who care very deeply about the abortion issue, either because they're religious Catholics or religious evangelicals or because this is an issue that just appeals to them in a deep way.

And those voters, I'm interested in whether they are going to make the full conversion over Democrats.

Under Trump, have they been so fully alienated that they can no longer call themselves Republicans or stay in the middle, stay out of the fray?

Or are they going to feel like they have to have fidelity to this issue, which is privileged really highly in religious circles?

It's privileged really highly among religious leaders and among grassroots activists is seen as the most urgent political issue of our time.

Right.

If you are a person who believes that this is a life,

then killing that life can sit aside from a lot of other issues about taxes or tweets or anything else, right?

Trevor Burrus, Jr.: That's right.

That's right.

I think for people like the legislators in Alabama, who, to be sure, are voting Republican because they are die-hard Republicans, but to them, when they're making these pieces of legislation and talking about the Holocaust and the Rwandan genocide and Stalin,

you may say on the sort of progressive pro-choice side, oh, this is a disingenuous call back to horrible slaughters in a way that completely is out of sync with the reality of abortion in the United States.

But I think they're earnest.

I think they actually believe that this is the greatest human rights issue and tragedy of our time.

And if you really believe that, then it makes sense that you would put this issue number one in your list of things that you're going to vote for candidates based on.

And I think for some voters who are, again, in that middle space, what they're looking for is not that the Democratic Party is going to convert to an anti-abortion position, but they're looking for space.

They're looking for a nod that they're welcome, that there's a place for them in the Democratic Party, and that they may be

sort of full-fledged members in their views on this issue, as well as on immigration, as well as on economic policy.

Yeah, I think back to a conversation I had with Tony Perkins, who's an evangelical leader, the Family Research Council, who said to me, we were talking right as all the Stormy Daniels stuff was coming out about Trump, and I said,

there's so much that you disagree with Donald Trump about personally and politically.

Why are you so staunchly aligned with him?

And he said, this is what it comes down to.

It's the courts.

It's standing up for these values in this way

on abortion, on religious freedom, these things that are beyond politics, at least in the way that he put it, for him.

And so

the line that he used was that he would give Trump a mulligan on everything from his life before he was president.

But that's the way of thinking about it for people who think in that way.

That's right.

And I've definitely heard from leaders who echo something similar, which is they believe that the United States is going through a cultural overhaul, that the values of the sexual revolution, that the values of broadly a sort of secular progressive movement have not only taken over Hollywood Hollywood and taken over Washington, but are taking over the culture generally.

And they really do feel that there is a squeezing out of their cultural perspectives.

This, as you mentioned, is not just about abortion, it's about religious freedom and expression, it's about people who still dissent on gay rights.

They feel like there is no longer a place for them in American culture and politics.

And what Trump has done really effectively is position himself as their defender.

He has come again and again to their aid on issues they care about.

He's put forth policies and executive actions on issues they care about and signaled through speeches, through direct action, that he is their ally.

And they've responded largely with waves of support.

This is where you get that famous number, the 81% of white evangelicals who supported Trump in 2016.

I think that message was a big part of why there was such a broad swell of support for Trump among among those conservative Christians.

Trevor Burrus And that was in 2016 when it was essentially a bet that he would actually follow through on this.

Now he has and done that in all sorts of ways from speaking about these issues in the way that you were talking about

sometimes explicitly, sometimes implicitly.

And all of his court appointments, not just the two Supreme Court appointments, but all the way down,

judicial nominees are probably the most striking and decisive aspect of this presidency presidency so far.

So where does that leave us going into 2020?

It seems like those evangelicals who made that bet in 2016 will feel like it was a good bet to make and will continue with them.

For other voters, do you think that we're looking at a situation where

this question of abortion motivates anybody who is

worried about abortion rights being taken away to the same levels that it motivated people who are in favor of taking those abortion rights away.

Because in 2016, one of the big, big issues was that open Supreme Court seat.

It was one of the big issues on the right.

On the left, they complained about it and a lot of talk about Merrick Garland, but Democrats could never figure out how to make people vote on it.

And now it does seem like with this reaching an existential moment, there's more talk about it.

People are protesting on the steps of the Supreme Court last week, getting all riled up.

But is it actually going to lead to votes being changed here or more votes coming out?

You know, I think the Supreme Court is just as much of an existential issue as it's ever been.

The whole issue in 2016 was changing that fundamental balance.

But I don't think that any conservative or liberal is blind to the fact that Ruth Bader Ginsburg, who has had many health issues in recent years, who is getting up there in years, you know, God willing, she'll live to 120 because everyone should have the blessing of living to 120.

But, you know, there are definitely going to be openings

at the Supreme Court level potentially and certainly at that lower court level.

And I do think that liberals now see this in the way that conservatives have seen it for years, which is this is the huge legacy-making issue.

Court appointments are really the legacy of a president.

And I do think liberals are waking up to that.

I also think you're right that there is a base on the Democratic side that sees this issue as so important.

You see women coming out in remarkable numbers for the women's march, for protests around these abortion bills.

There is a certain segment of the base that has been very activated around this issue.

But I would say that when it comes to a general election, the states that we're going to be watching are those same states that basically lost the election for Hillary Clinton.

This is Florida, Pennsylvania, Wisconsin, Michigan, Ohio, places either who have sort of this mixed purple population like Florida, or in that band in the Mid-Atlantic and upper Midwest that do have these conservative populations, sort of old school Catholic or Protestant values.

And when you look at the polling numbers on abortion, these are states that are very evenly split and not just split around specific abortion restrictions in the third trimester, that sort of thing, but on Roe versus Wade, on the basic constitutionality of abortion.

So I think when you have these Democratic candidates who are trying to make way in these swing states or these states that have become swing states, trying to turn them back blue for a general election in 2020, they're going to have to think long and deep about the kinds of voters that they're going for, who they think is important to reach, and what kind of persuasion efforts they want to undertake in order to make sure that the map doesn't end up on that November night in 2020 looking very much like it did in 2016.

All right.

Well, we are going to see how this all plays out both in the, it seems like, very short term with some of these laws getting through the courts and over the long term as we get into the 2020 election.

Emma Green, thank you for joining us here on Radio Atlantic to walk us through it.

It was great talking to you, Isaac.

That'll do it for this week of Radio Atlantic.

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