The Latest on State Abortion Restrictions

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We have New Yorker magazine satirist, Andy Borowitz, on the show today with apologies to President John F. Kennedy, which his new book is called Profiles in Ignorance. We have the much-celebrated author, Ayad Akhtar, who among many other things is a friend of Salman Rushdie and president of the writer's free speech organization, PEN. Ayad Akhtar will talk about the attack on Rushdie recently and about the 100th anniversary of PEN as a beacon of free speech advocacy. They're having an event in New York this week. Looking forward to having him on the show.

Let's start the week with an update on abortion rights since Roe v. Wade was overturned and since the referendum in Kansas shocked many people with a decisive popular win for abortion rights. There are so many developments in so many states right now, it's hard to keep up, which we're going to try to do on this show. We've already got another segment scheduled for two weeks from now, but for today, for example, we see that South Carolina's state legislature, a very conservative state, just rejected the most extreme version of an abortion ban that they were considering after Republicans in the legislature wound up divided among themselves.

Michigan is the latest state where voters will now get a direct shot in November at deciding whether or not abortion rights should be protected in the state constitution. Back with us now on Michigan, South Carolina, and more is Shefali Luthra, health reporter covering the intersection of gender and healthcare for The 19th, the news site that covers gender politics and policy and was named for the 19th amendment to the constitution, which gave women the right to vote. Prior to joining The 19th, Shefali was a correspondent at Kaiser Health News where she spent six years covering national healthcare policy.

Some of her latest articles on The 19th site include one on Republican Congressional candidates suddenly trying to rewrite their histories of stances on abortion rights and one about how local judges now have more power to decide who gets an abortion. That is a fascinating if troubling article and we will dive into that. Shefali, thanks for coming on again, and welcome back to WNYC.

Shefali Luthra: Thanks so much for having me, Brian.

Brian Lehrer: Let's start with your local judge's story. If they have more power to decide who gets an abortion, do you mean on an individual, woman by woman, person by person, case by case basis?

Shefali Luthra: That's exactly what we mean. This article really came from watching providers and patients really struggle even in the past few months with having to figure out if their specific abortion case is legal under new laws that are being enforced and are very confusing and that have exceptions that are quite narrowly written. We've seen this in the case of minors who may try to get an abortion without the approval of their parents. In states that have these parental notification requirements, you can get past that if you get a judge to approve of your abortion to say that you are mature enough to make this decision on your own.

We've seen before and we are seeing now even more as abortion bans take more effect across the country that what's happening is minors are really reliant on judges to determine from their individual temperament, their personality, their training, their inherent biases whether these teenagers deserve an abortion. We've seen people use a student's GPA as a criteria for whether they deserve to terminate a pregnancy.

Brian Lehrer: I practically jumped out of my chair this morning when I read that in your article. Can you tell us a little bit about that case? It was a Florida judge who you say denied a 17-year-old abortion access because of her GPA. Really?

Shefali Luthra: That one was really quite striking, and it actually pre-dated Roe being overturned. It was from this past January and the judge said that she had misrepresented her academic record because she said that she got a certain number GPA. He said, "Well, I've looked at your old transcript and your grades are lower than that, so you're not mature enough to get an abortion." That seems very complicated because perhaps she was speaking about what her current GPA was, what her efforts were, as opposed to her past. Regardless, she was denied at the time and the decision was overturned later by an appeals court.

Why this matters is because these processes take time, and now, you're in states where you have a shorter timeline. Florida only allows 15 weeks for an abortion in the new post-real world. Every week that you lose because you are navigating individual judges' temperaments, it really matters in terms of whether you will be able to legally get an abortion in your state.

Brian Lehrer: Wasn't there a case recently where a judge determined that a young woman or a teenager was not mature enough to decide that she wanted an abortion, not mature enough to have an abortion but that implies she's mature enough to withstand forced pregnancy and labor?

Shefali Luthra: That's exactly correct. That happened earlier this August. We don't yet know whether that would be overturned on appeal but it's just really striking that what's happening is exactly these individuals, and to be clear, the state and local judiciary apparatus is largely white men and predominantly people who may bring their own lived experiences to how they interpret the law and how they interpret the burdens of pregnancy without fully interrogating what it means to be denied this access.

Brian Lehrer: Though, I guess, the woman or girl in that particular case, actually I don't know her age, who is deemed too immature to decide to have an abortion, I guess by implication though, she could give up the baby for adoption if she's forced to carry it to term. The judge was saying by implication that she was too immature to have an abortion but not too immature to be a parent.

Shefali Luthra: That's precisely it. That young girl, she was 16, which if we think about 16, that's really young. You are maybe learning how to drive, you can't vote, you can't drink, and you are being told that you are mature enough not to make your own choice but to, even if not be a parent, to go through a pregnancy, which is very difficult. It has health complications. It has a lifelong physical impact on your body. It feels that that is something that is often missed over in the dialogue about what it means to be forced to carry on a pregnancy you did not want.

Brian Lehrer: It's not just regarding minors, judges are also getting to decide more for adults too, whether they can have abortions. One area of the law you write about is for states that ban most abortions but have an exception for a pregnant person experiencing a health emergency. Can you give us an example or more context around that?

Shefali Luthra: Absolutely. This is really, really important, I think. There isn't a specific medical definition of what constitutes a medical emergency. Medicine is really complicated. There are a lot of nuances about what this could mean, but we see these laws that are quite vague. They say, "If the life of the person is at risk, if this is an emergency, then you can go ahead and perform an abortion." For instance, let's say someone is experiencing an ectopic pregnancy where we know that the right form of treatment is to terminate the pregnancy.

If one physician could be and many are, in fact, concerned that if they provide an abortion earlier on before the ectopic pregnancy begins internally bleeding and requiring emergency surgery right away, that they may not be covered under these exceptions. What that means is the enforcement and interpretation of these individual laws and their narrow, ambiguous, confusing exceptions, it varies based on local prosecutors and on local judges. If you're a doctor, what often happens is you don't know how these judges will rule, you don't know which judge you'll be assigned, and it's often better not to take the risk at all.

Brian Lehrer: You gave us the context on who local judges are and tend to be. Some are locally elected, some are politically appointed, and by the way, across the country, they tend very much to be white men. How much do you see demographics as destiny, if we can put it that way, in how those judges rule?

Shefali Luthra: I think we should be very careful, of course, in talking about what individual people's lived experiences are. I do think it's important to note that these judges don't have medical training and we are talking about medical decisions that are incredibly complicated. There is at the very least a question or a concern about what it means to be putting really life-threatening nuanced decisions about healthcare into the hands of people who simply do not have this kind of expertise.

Brian Lehrer: We've discussed on this show how bad the selection process is, even just for our local judicial elections in New York. Nobody pays attention to these races like they do to races for mayor or governor or Congress, president. Party bosses tend to get to pick the judges who appear on the ballot, often without opposition. That might mean mostly liberal judges when it comes to abortion rights in New York, but around the country, even as we know, abortion rights are popular in nationwide surveys. The appointments of judges may not reflect the people's opinions, right?

Shefali Luthra: We pretend that the judicial apparatus is very apolitical, and in reality, that is simply not the case very often.

Brian Lehrer: Is there a policy response or an advocacy response possible to the new power of judges over pregnant people's lives in these ways?

Shefali Luthra: That's a great question, and it is one that I have repeatedly asked civil rights lawyers, reproductive law experts, and doctors. The answer that keeps coming back to me is that there isn't really a silver bullet solution as long as you are forcing medical providers to work in these very restrictive terms and under these laws that effectively ban healthcare that they may deem to be necessary.

Brian Lehrer: Listeners, your questions or comments about abortion rights at the state level are about to go state by state through some battles that are taking place now as the country reacts to the Supreme Court's Dobbs decision and the Kansas referendum win for abortion rights or anything on the judicial role in individual abortion access cases. 212-433-WNYC. 212-433-9692. Anyone with a story, any judge or lawyer or advocate, or anyone else with a story that fits what we were just talking about about the judges.

This may not be such a thing in our primary listening area, but who knows who around the country might want to call in from Florida, from Ohio, from Indiana, from anywhere else, so anything on that or state by state as they go through legislatures and through referenda. So many states right now are starting to do that after Dobbs and after Kansas. 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer for Shefali Luthra who covers healthcare and the intersection of gender and health policy and politics for the news organization, The 19th. Shefali, let's go on to some of the states in the news for abortion rights developments. South Carolina, they declined to go from a very severe widespread ban to an almost more severe total ban. Would that be a way to frame it?

Shefali Luthra: I think that's a great way to frame it. South Carolina has on the books right now a six-week abortion ban that, to be clear, has been blocked by courts, is not in effect. What the legislature had been trying to do was pass a total ban, and where they got really hung up and we're seeing this in Republican bodies across the country is over whether to include exceptions for rape and incest. Ultimately, what happened in South Carolina is the decision to not include those exceptions doomed the bill.

This speaks to something that I think we will be seeing really play out and that's really critical, which is, this is a moment of reckoning for a lot of Republican lawmakers. Are they concerned about going too far and passing these forms of bans that, especially once you remove rape and incest exceptions are deeply unpopular across the country in basically every state, or do you try to do without those exceptions anyway to appeal to your base voters who have been keeping you in power this long?

Brian Lehrer: It was not funny for me to read the headlines on this last week before I read the details on the story, "South Carolina legislature fails to pass extremely restrictive abortion law," or, "South Carolina Republicans divided among themselves in the legislature on restrictive abortion law." Then I read the details, and they all seemed to agree that abortion should be banned after just six weeks. It was just going beyond that that was controversial.

Shefali Luthra: Precisely. Sometimes we lose this, and I think it is really important to note that six weeks is also very restrictive. The pregnancy clock starts two weeks technically before you actually have this fertilization occur because it begins with your last period. You are in a likelihood based on how we experience pregnancy. The first sign is a missed period. If you are being incredibly cautious, you could notice you are pregnant around four weeks, in a likelihood around five weeks. Six weeks as a ban really cuts off many people from abortion before they may know that they are pregnant.

Brian Lehrer: What do we learn because this is the one that's most been in the news over the last week at the legislative level? What do we learn about where abortion rights politics are nationally in conservative states from South Carolina if we learn anything at all?

Shefali Luthra: South Carolina, I think, gives us enough data to say three makes a trend. We have seen fights like this emerge in West Virginia and Indiana as well. Indiana was able to pass an abortion ban that takes effect later this month. West Virginia has not. South Carolina also has not yet at this point. What it shows is that this is the dog that caught the car moment. As a lot of political scientists have been saying, you can run for years on abortion restrictions, and it will appeal to the voters whom you want to appeal to.

Many of them deeply do believe that all abortions should be banned, even in cases of rape or incest, but when these laws have the chance of actually taking effect and shaping people's day-to-day lives, the risk of backlash is really potent. This is playing out in state houses. This is playing out in the Congressional elections as well.

Brian Lehrer: We'll get to the Congressional elections as we go in your article on that. Right after this break, we're going to get to Shefali's reporting and other people's reporting on Michigan and other states that are going to hold or are debating whether to hold referenda ballot questions directly to the voters on abortion rights this fall. This is a fascinating and increasingly consequential aspect of the post-Roe, post-Dobbs world, and we'll take your phone calls. 212-433-WNYC for Shefali Luthra from The 19th. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we go state by state and trend by trend, and we will continue to do so on this show to chronicle the post-Roe v. Wade, the post-Dobbs world, which is also the post-Kansas referendum world since that win for abortion rights and a referendum surprised a lot of people. We'll get to Michigan in a second with Shefali Luthra from the news organization, The 19th. She covers healthcare and the intersection of healthcare politics and gender for The 19th.

We'll get to Michigan and other states in a second, but I want to take a couple of calls on some of the things we were talking about in part one. Sam, on the Lower East Side, wants to react to the story of the 16-year-old who was forced by a judge to not get an abortion, although that's being appealed we're told, on the basis that she was too immature to make that decision. Sam, you're on WNYC. Hello.

Sam: Hi, good morning. I'm listening to this and I'm thinking, "Well, if she's too immature to decide when having an abortion, that means that she has to have the child," which implies that she can raise the child, which, in fact, many 16-year-olds have done, but it implies that you don't have to be mature to be a mother. It's like comparing a woman to a dog having puppies. You don't need to have any skills to have a child, which also makes me think about slavery. Enslaved women in America were forced to care for children of their masters but they were not deemed full persons. This is also implying that a mother is not a full person, so women are not full persons, and they don't have a choice regarding their bodies.

Brian Lehrer: You're making that analogy?

Sam: [crosstalk] implications of that. Yes.

Brian Lehrer: Sam, thank you very much. I certainly have. Have you heard that comparison to slavery and it's not complete apples to apples but you get where the caller is going?

Shefali Luthra: The phrasing that has really stayed with me and sometimes I just sit and process it is we are telling pregnant people that they have to go to a judge or an outside legal authority to determine if they can access specific healthcare services. That's just a really difficult thing to process because it does suggest a level of inequality. You don't have the autonomy or agency to make this decision for yourself. That's a really profound shift in how our country functions and how it perceives of medical and health autonomy not to mention the choice over whether to be a parent which as we know is lifelong and very difficult.

Brian Lehrer: By the way, there's no analogy for men under the law and what they may be required to do and how their full personhood might be called into question legally. I think some people consider that and this is really for another day and another segment with more of a legal analyst than a healthcare reporter which you are but might be another avenue to go back at a constitutional protection for abortion rights which is more as a sex discrimination thing than a privacy thing which Roe was decided on.

Shefali Luthra: That is, in fact, an argument that many folks have made that there certainly, I think, is room for a longer-term discussion about as abortion rights lawyers even now are trying to figure out what is the next maybe not 50 years, maybe shorter, but long-term strategy to bring back abortion rights to America.

Brian Lehrer: All right. Michigan, there was a big battle over whether there would be an abortion rights state constitution voter question this fall and it's now in. Correct?

Shefali Luthra: That is correct. Michigan this November will be voting along with its gubernatorial race and other major elections on whether to amend its constitution to protect abortion rights. It is joining a handful of other states that are weighing abortion rights referenda this fall. Montana, Kentucky, California, Vermont, all coming on the heels of Kansas which we discussed last time, I believe, on the show and really surprised a lot of the country by how resounding that decision was.

Brian Lehrer: Do you know the wording of the Michigan ballot question by any chance, the one that protected abortion rights in Kansas this summer and we talked about it, you're right, was actually placed by abortion rights opponents? We did that segment about how obscure and misleading the language was. I was almost sure that that language was going to help get abortion rights further restricted in Kansas but that didn't happen despite the language. Do you know the wording in Michigan or who's getting to write it?

Shefali Luthra: This is written by the abortion rights side. It is to my understanding far clearer. I just pulled it up, and what it does to my understanding is it affirms that the constitution protects the right to make and carry out decisions regarding pregnancy, which includes prenatal care, childbirth, postpartum care. They do single out abortion specifically and they clarify that this right won't be infringed unless justified by a compelling state interest. This is very similar to what the original Roe v. Wade decision and protection offered us.

Brian Lehrer: You know what I'm also going to be watching for in the midterm elections in Michigan and some of these other states, back in 2004, this is a story we've talked about many times on this show, and a lot of people know it but a lot of people don't know it, one of the ways that President George W. Bush got re-elected in 2004 was that in Ohio, which was the ultimate swing state that year, that election really hinged on Ohio. If John Kerry had won Ohio, he would've won the presidency.

Bush won Ohio. It was very, very close, but one of the ways Bush won Ohio was that the conservative movement put an anti-gay-rights ballot measure on the ballot for that fall, one that was calculated to turn out a big Republican voter turnout base. I wonder if, in Michigan, one of the other goals here besides abortion rights themselves might be to tap into the energized left or just the energized center as well that supports abortion rights and that this might accrue to the benefit of Governor Whitmer, a Democrat, who's up for re-election and some of the Democratic Congressional candidates.

Shefali Luthra: Governor Whitmer has made abortion rights a really strong focus of her campaign. She is the one who challenged the state's pre-Roe ban in court. She has been a real voice for abortion rights protections in a way that other governors in swinger states might not have been, but she's made this a real center and part of her brand. I think you're right that we will see some relationship between those who come out to vote for Whitmer and those who come out to vote in favor of this constitutional amendment.

One thing that I found very striking was that after the state's Supreme Court approved this initiative to be on the ballot, Governor Whitmer's opponent said, "Well, now that you can vote for abortion rights specifically, you don't need to vote for Governor Whitmer. You can vote for me instead," which is a very funny dissonance to suggest, "You can vote for me even though I don't support the thing that you agree with because you have this different chance to vote on that."

Brian Lehrer: Interesting. We will see what happens in Michigan on November 8th. Let's take another call. I think a doctor identifying as a retired OB-GYN is calling on your early reporting that we were discussing about how judges have-- I should say your new reporting that we were discussing earlier in the segment about how judges have increasing power in the post-Dobbs world over individuals access to abortions, local judges in many places around the country. I think a Dr. Smith in Parsippany is calling in about that. Hello, doctor, thank you. You're on WNYC.

Dr. Smith: Thank you for taking my call. Listen, I am just totally amazed that in the restrictive state they don't take the extra step of getting a physician or two on their advisory boards. There are certain things such as a tubal pregnancy. You don't have to wait till the patient ruptures the pregnancy and then do an operation. You can intervene early with medication and you never need an operation. As far as miscarriage goes, we can tell as gynecologists if someone has partially miscarried or they're inevitably going to miscarry. The proper thing to do is empty the uterus, not worry about you're going to be arrested. It would be just so simple if they just got a retired physician who practiced this their whole life to give them guidelines.

Brian Lehrer: Are you volunteering?

Dr. Smith: Hello?

Brian Lehrer: [chuckles] I asked if you were volunteering since you said there are retired physicians.

Dr. Smith: Yes, I would be delighted to volunteer. There's no reason for my colleagues to be living in fear for doing the right thing.

Brian Lehrer: Dr. Smith, thank you so much for calling in. I didn't see it in your story, Shefali. I don't know if there are formal structures being put into place like Dr. Smith suggests where retired OB-GYNs, for example, are put on some kinds of advisory boards for judges who are now having to decide more individual abortion access cases.

Shefali Luthra: That is a really interesting idea that has not taken off at all to my knowledge. One thing that I would add though is that waiting for that advisory body would take time, and in emergencies, time is essential.

Brian Lehrer: That's a good point. All right. We talked about Michigan. You mentioned Montana, Kentucky, California, and Vermont all also holding abortion rights votes in November. Is there any one of those you find especially interesting and want to talk about?

Shefali Luthra: I think Kentucky is incredibly important and can be very revealing for us. What Kansas showed us is that there is a real backlash to abortion rights restrictions. Even in states that are considered to be deeply Republican lost causes for a lot of Democrats other than maybe the rare example of this governor who can win statewide. Kansas is one state and the Republican makeup there is very different. It has this libertarian almost element, as one expert there described it to me, of folks who may really want to keep the government out of everything including abortion.

Kentucky will offer us another data point to see if this trend holds. Is this unique to Kansas, or is there the possibility for a meaningful bipartisan across the country backlash to abortion rights restrictions and abortion bans? We won't know that, I don't think, until we see what happens in Kentucky. I think the advocates for abortion rights also understand that and are really looking to this as their next most important state.

Brian Lehrer: Looking down that list of the four states, it's one thing when these conservative states like Montana and Kentucky have to face the music on how draconian to get like in the way you were just describing the Kentucky voters are being confronted with. I'm surprised to see ballot questions in California and Vermont. These are pro-abortion rights initiatives but still, those are states where I would have thought abortion rights are not threatened. Vermont and California in public opinion is not close, so what is there to put on the ballot?

Shefali Luthra: The important element that these initiatives would bring is a protection in the constitution that cannot be undone if the politics of the state change long term, if you get a new Supreme Court in the state that might re-interpret how the constitution works. Right now, these states seem very likely long-term havens for abortion rights based on their political makeup. At one point, people also thought that Roe v. Wade was very secure and we never did see any federal constitutional amendment or legislation to safeguard those protections.

In fact, what we are looking at right now is states like Florida where the Supreme Court has, just like California, guaranteed abortion rights are protected by the constitution but where we also expect that the court which has shifted where along with the state might undo those. I think why this matters is they're insurance for longer-term political changes.

Brian Lehrer: As a footnote for now but we'll do a separate segment on it at some point, Politico has an interesting and troubling article today on how conservatives seeing the public start to go for liberal ballot measures on abortion rights as well as other things in recent years, Medicaid expansion, legal cannabis sales, other things, are now trying to pass laws to require a 60%, not 50% plus one vote, for a referendum to be voted in by the people. It's like having a filibuster rule like they have in the Senate, 60%, but for every referendum in every state if they were to get these through in every state. Have you seen that latest outburst of trying to change the rules to fit the politics?

Shefali Luthra: I read that same political story you did, and I thought that was really interesting. Some states do already have fairly high thresholds for ballot initiatives to become law, but what this does is when you move toward a higher and higher threshold to enact something, it creates situations where in order for something to pass in a popular vote, you need a lot of money. It really will make it harder to enact change through the ballot box unless you are prepared to fundraise to get really intense national financial support and then to put that into a very, very well-resourced campaign which many organizations just simply don't have.

Brian Lehrer: Another caller on local judges having so much more power now to decide on individual's access to abortions. Larry in Manhattan, you're on WNYC. Hi, Larry.

Larry: Hey, good morning, Brian and your guest. It's pretty interesting that pro-life would say, "We don't want nine judges in black robes making decisions as to whether another woman should have an abortion. We want it to go to the state." Now it's at the state, and here we are now with judges intervening again.

Brian Lehrer: That is so interesting. You're right, a contradiction. I hadn't thought about it in those terms. That's pretty interesting from Larry. If the anti-abortion right side was saying judges shouldn't make these decisions, legislatures should make these decisions or the people should make these decisions, here they are landing this in the laps of more judges all over the country to make these decisions in individual cases.

Shefali Luthra: I think that's a really interesting point. One of the themes that I think you and I have talked about several times in the past half hour is that we are actually really seeing a disconnect from popular sentiment and what the anti-abortion movement really desires and the political institutions that are passing more restrictive laws or supporting those are in some ways those that are the least democratically accountable.

Brian Lehrer: There, listeners, is an update on abortion rights since Roe v. Wade was overturned and since the referendum in Kansas shocked many people with a decisive popular win for abortion rights in a few more states and this trend having to do with judges in the very interesting article by our guest, Shefali Luthra, who covers abortion rights and other healthcare and the intersection of gender politics and policy with healthcare for the news organization, The 19th. The 19th, again, remember was named after the 19th amendment which gave women the right to vote.

I'll say, as we sometimes do when we have guests from there on, if you look at their site, you'll see that it's The 19th with an asterisk. The asterisk refers to the fact that the 19th amendment really in practical terms only gave white women the right to vote. The right for Black women and some other women of color really didn't come until the Voting Rights Act many decades later. There's an update on that trend having to do with the judges and some of the states. There are so many developments in so many states right now. It's hard to keep up with, but we're going to try to do that a lot on this show. Shefali, thank you as always.

Shefali Luthra: Thank you so much, Brian.

 

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