If Roe v Wade Goes

[music]

Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. Roe versus Wade, the 1973 Supreme Court decision that recognized a woman's right to an abortion is seemingly on life support. There is a clear majority of justices on the Supreme Court who have expressed an interest in overturning it, and to judge by the sheer number of red state laws passed that will directly challenge it, including one from Mississippi, that the court has agreed to hear next term, it could well be a question of when, not if, Roe is overturned.

There's also a growing number of barriers to women's access to abortion enacted at the state level in many states, even within Roe. My next guests are reading the signs, and they argue it's time to change strategies to protect the rights that they've spent their careers fighting to preserve. Kathryn Kolbert is a woman's rights attorney who argued Planned Parenthood versus Casey at the Supreme Court. That was a post-Roe challenge to Roe. She's also the co-founder of the center for reproductive rights, and Julie F. Kay, is a human rights lawyer and the architect of the lawsuit, A, B, and C versus Ireland, that set the stage for the liberalization of abortion law in that country.

Together, they have authored a new book, Controlling Women: What We Must Do Now to Save Reproductive Freedom. Kathryn and Julie, welcome to WYNC. Thank you so much for joining us and Kathryn you've been on multiple times before, so welcome back.

Kathryn Kolbert: Thank you so much, Brian. It's great to be here.

Brian: Kathryn, Roe was in the '70s. The case that you argued before the court, Planned Parenthood versus Casey was in the '90s, and it was a win, kind of, but they did chip away at Roe in that Supreme Court decision in the '70s. What is the status of constitutional abortion rights right now?

Kathryn: Well, currently Brian, we have protection for the right to a legal abortion up to viability, that stage in pregnancy in which runs around 24 to 28 weeks of pregnancy and thereafter, if necessary, to protect a woman's health, but, and this is a big but, states have greater latitude to restrict abortion and can do so unless that restriction is undue. The legal speak really means that poor women, women who are too often women of color, women in rural areas, women who are young, don't have the same access as other women. Therefore, their rights are already severely circumscribed.

Frankly, there's 89% of US counties that don't have a single abortion provider. We are in the most dire straits we've been in 40 years.

Brian: We'll talk about some of those state laws and situations in different states, especially red states, but the Mississippi law that the Supreme Court will hear arguments on next term for the federal level, that bans abortions in Mississippi after 15 weeks. That's in direct contradiction to what you just described as Roe versus Wade's protection that the state's interest only comes with the viability of the fetus to live outside the mother's womb, which is later than that. Is this the case, the Mississippi case, that you think is most likely to overturn Roe if the court is ready for that?

Kathryn: Absolutely. Let's just be clear here. There are six bad votes. There are six votes of justices on this court who are willing and able to, either totally reverse Roe and Casey and send the matter totally back to the states, or so undermine it that even a much greater numbers of women are unable to obtain the procedure. We're in bad shape. The critical number here is five. That is if there's five votes against us, we lose. There are, in our view, already six .

People keep saying, "Well, this can't happen. This can't happen. This can't happen." It can happen. It almost happened in my case. It wasn't until a late change of Justice Kennedy that preserved what we now have. This court is less less hospitable to the rights we know and cherish so dearly.

Julie F. Kay: I think one of--

Brian: Go ahead, Julie, you want to jump in on that?

Julie: Sure. I think one of the real reasons that we wrote this book is because we knew, we started writing before the Mississippi case came along, but we knew that there would be a case. During the Trump administration, the laser focus on restricting abortion rights and reproductive freedom, generally to his appointments, to the Supreme Court and other actions, the writing was on the wall.

Not only was Roe on life support, as you said, but so many women were already not able to access abortion rights. We wrote this because we knew that we need a new approach besides banging our heads against the Supreme Court's marble walls, and really wanted to focus on activism, and a human rights approach to expanding reproductive freedom and not just shoring up Roe v. Wade and Planned Parenthood versus Casey.

Brian: Talk about what that involves, Julie. Does that mean you're getting ready for a protect abortion rights strategy that assumes Roe will be overturned?

Julie: Well, I think we assume Roe will be overturned, if not now, very soon by the Supreme Court, but we also want to look at more proactive strategies and ways of moving forward. Some of the states have demonstrated that, but we also really look at models from Ireland in our book, and the work that I did there, which really advanced a human rights model, and was much more aggressive and proactive in looking at how to talk about women's equality, and dignity, and full participation in society, and not deferring the right to make some of the most intimate decisions to other's political viewpoints.

We looked a lot at solutions and ways forward. We're reconciled to the fact that the Supreme Court is not our friend and never will be.

Brian: Tell us more about this human rights approach as you describe it, that you used in Ireland, and what you think can be adapted from it for here.

Julie: Models of affirmative campaigns are something that we really collect it and like to look at. Ireland was certainly one successful model where there was an anti-abortion clause that was enshrined in the constitution, and within about 20-plus years, they went to legalizing abortion. Not something that we emphasize a lot is that this has to be a long-term plan, but really the Irish constitutional provision was inspired by the fear of Roe v. Wade that was passed in the US about 10 years earlier, and the human life amendment that had been proposed in the US was used as the Irish model.

What we did there was this combination of bringing a lawsuit to the European Court of Human Rights as well as really talking about how criminalizing abortion stigmatized people who seek abortions and those who help them. We need a campaign that really redefines the terms of the debate, because people know this in their core, that making these kinds of decisions about who you have a family with, or don't start a family with, how you're able to participate in life, access healthcare, access childcare is not something that should just be reserved for the wealthy or the lucky, and certainly shouldn't be dictated by others', religious beliefs, but is really an innate part of of one's human rights.

Brian: Listeners, we can take a few phone calls for Julie Kay and Kathryn Kolbert, authors of a new book, Controlling Women: What We Must Do Now to Save Reproductive Freedom, 646-435-7280, 646-435-7280, or tweet @BrianLehrer. I also want to pass along a program note. We're told that Governor Cuomo is going to speak live for the first time since the Attorney General's report came out on his sexual harassment at 11:45, and we will take that live. We're looking to the first live remarks from Governor Cuomo since the Attorney General's report came out a week ago, scheduled now for 11:45. This just came out and we do plan to take it live, so that's in about 20 minutes.

Kathryn, as the title of your book suggests, you reject the idea that the fight over Roe and abortion rights is about abortion itself. You see it as being about control, controlling women. What are the implications of that for a strategy going forward because you know the other side is going to say, "No, this is not about controlling women. This is about saving what we see as human lives."

Kathryn: That's correct. I think there's two parts to this, Brian. We're really clear that if this were about protection of women's health, or protection of religion, it would have taken a whole different form. Clearly almost a million women a year have abortions. I think it's one in five women in this country have had an abortion, and the whole debate is talking about religion, as opposed to the ability of women to make healthcare decisions for their lives and frankly, to control who they sleep with, who they have relationships with, how they are making decisions that, positively or negatively, impact their life. It's, in our view, about misogyny. It's about controlling the way those decisions are made.

Let's be really clear here, this is about political power. Abortion has always been for the right, that issue that holds together their coalition. For us, in terms of developing new strategies, we need to look more broadly than just the medical decision about abortion and look about all sorts of women's rights, and controlling the conditions that make having children possible for so many families.

We think we want to develop strategies that build on, not just the abortion rights movement, but the women's rights movement, the anti-violence movement, the movement for LGBTQ+ people, and build the political power that's necessary to pass laws that are protective of women going forward.

Brian: Kelly in Brooklyn, you're on WNYC. Hi, Kelly.

Kelly: Your guests are making my point that there's a thread of authoritarianism that's running through the state legislation that's around control, and that the reproductive rights should be linked to the voter suppression laws and movement, because it's the state legislators who are enacting laws to preserve their Republican power base and they will most certainly preserve any destruction of Roe versus Wade like. It's a natural connection to the voter suppression, which were--

The narrative has been that this is impacting people of color, and I think you lose a lot of people in that narrative when you don't include the threat of reproductive right, that everybody has a stake in the voter suppression laws, and there has to be a natural link and overlap. You cannot silo off women's rights from people of color rights when all of it is about authoritarianism and control. I really hope that your guests consider linking them to the voter suppression movement to get those state legislators, or to get that federal law in place. We all have a stake in it.

Brian: Kelly, thank you so much. Julie Kay, what do you think about that as a linking strategy?

Julie: We talk a lot about specific strategies in the book, and about the importance of allyship. I think Kelly's right about the impact, and particularly when you look at the impact of banning and criminalizing abortion, you see that it falls disproportionately on people, for example, the Hyde Amendment which has denied federal funding for Medicaid recipients to abortion access. It had a veneer of reasonableness that, well, this is a middle ground position on abortion, but the reality is that that really disproportionately harmed women of color who were not able to access abortion rights, and obviously as well, women in poverty were in fact, more harmed by the cruelty of the Hyde Amendment.

Similarly, when we criminalize abortion, we have the same kind of disparities in the criminal justice system and marginalized women who are the ones who are subject to rogue prosecutors who are charging them with harm to unborn children, those kinds of real stretches of abortion laws. We do need to talk more broadly about what happens when we criminalize healthcare, and that we need to find the common ground in the allyship around reproductive freedom generally, about reducing.

Even New York State, which is a progressive blue state with a lot of great healthcare, we have really disheartening disparity in maternal mortality, where Black women in particular, have less access to reproductive healthcare that they need, and then maternal mortality and infant mortality rates are too high. I agree with making these connections to a broader political allyship, as well as electoral politics, is really important as we start to really witness the decline of the federal level, Roe v. Wade in particular.

Brian: I think to that point, Kathryn, it might be good to mention for the listeners, one of the questions that you ask in the book in coming up with new initiatives and strategies, and that question that would be aimed at politicians is, are the people most effected by the problem involved in designing solutions? Can you talk about that?

Kathryn: Well, I think that's very, very important. One of the, difficulties is that the right has been very, very effective in marginalizing some women who have the least political power. I think to Kelly's point, right now, we have 23 states that are what I call trifecta Republican, who are all anti-abortion. Only 17 states who are blue in which, abortion rights and reproductive freedom, could be implemented at the state level.

The question is, what can we do to help those women who are most affected in the states where abortion is likely to be banned, and they have to be a part of that solution telling, involving us in what they need. I think, certainly, the activist groups that deal with women of color have said, restoration of funding under the Hyde Amendment is their top priority.

Let me just go back a second as well to say, that voting rights is clearly the important aspect of this, because unless we take back political power in purple and red states, which is now preserved by unequal voting, we're never going to be able to implement changes that we need.

Brian: We'll continue in a minute with Julie Kay and Kathryn Kolbert, many more of your calls on the status of Roe versus Wade, and abortion rights at the state level, and the new strategy that they're proposing to preserve them, and their book, Controlling Women, stay with us.

[music]

Brian: Brian Lehrer on WNYC. Remember, we're expecting the governor at 11:45 to make his first live remarks since the Attorney General's report detailing 11 instances of sexual harassment by the governor came out last week. We will take that live. That's 10 minutes from now if he's on time. Until then, we continue with Kathryn Kolbert, women's rights attorney, and Julie Kay, human rights attorney, and their book Controlling Women: What We Must Do Now to Save Reproductive Freedom.

If you missed the beginning of the segment, they think at least one case, a Mississippi law, is going to the Supreme Court in the coming term that could result in overturning Roe versus Wade. Vincent and Warren, New Jersey, you're on WNYC. Hi, Vincent.

Vincent: Hey, good morning, Brian. Thank you for taking my call. I'm a little passionate about this as a father of two daughters who are coming of age. I told you screener and I apologize for my passion earlier, but I feel very uncomfortable about-- there's something-- codified laws should be codified laws, they should not be able to touch Roe. Anything else as well. Once it's in the books, they should not be able to touch it. That's number one.

Number two, this is a little out there, and this is just a suggestion. This goes for all women. They should boycott sex, because if they're going to lose their rights for their own body, then you know what, nobody else should be able to touch it either. When you've got all that pent-up testosterone of male energy, the legislators are going to hear it. I know that's way, way out there and I apologize, but that's just the way I feel. Have a good day.

Brian: That's pretty out there, but thank you for your call. Kathryn--

Kathryn: I like out there.

Brian: Go ahead, you want to talk about that?

Kathryn: Yes first of all, I'd say there'll be a lot of pent-up estrogen as well, so I'm not sure that's the successful strategy, but I share in his concern, I have two daughters as well. I think this is a concern for everybody. It's about gender equity, and the fact that the Supreme Court is so willing to overturn precedents on this just means that we need to go elsewhere and look for other strategies, and really come up with bold solutions.

It's time to modernize this stale national debate, and we really think that we need to reframe this as a human rights issue, because it's not just about privacy, the way the Supreme Court has framed it, but it really is about gender equity, and gender equality, and a disparate impact on women of color and marginalized groups, that are really feeling this. We need to talk about this in more modern and proactive terms and we need to be bolder in our actions in really kicking and screaming when something like the Texas law goes through or like the Supreme Court is threatening to do in the next term.

Brian: Let's talk about-- Kathryn, go ahead. You go.

Kathryn: I was just going to add that for 40 years, our side has been saying, "Save Roe, save Roe, save Roe." If the courts are no longer our friend, that strategy is no longer going to work and yet it persists as well. Can't we just go to court and stop these horrible laws? The answer is probably not, over the long term. We need to shift and think about how we build political power in the states, how we build back and take back the Congress so that we could have one national law, and frankly develop what I am hopeful for is a long-term, a 50-year strategy that looks at adopting an explicit constitutional amendment that protects, not just abortion rights, but LBGT+ rights, rights to racial justice, et cetera.

Brian: The Texas Law, as an example, one of the most egregious, if not, from an abortion rights standpoint. It not only bans abortions after the fetal heartbeat develops at something like six weeks, it lets anyone sue for damages up to $10,000 if they find out that someone has gotten, or provided an abortion, or helped someone else get an abortion. What's the status of that one?

[crosstalk]

Julie: Go ahead, Kitty.

Kathryn: I was going to say it hasn't yet gone into effect. There will be lawsuits against it, or I think they've actually already been filed, but the reality is the courts aren't our friends, laws like this could, at some point, take effect. What they do is it's vigilante justice here. It lets the crazies, the people who want to impose their views on everyone else loosen the courts, and frankly discourages anyone, not only from performing abortions, but for helping people get to states where abortion is legal.

That's really the big downside of this kind of law. My guess is, if and when a Roe is undermine or overturned, we're going to see laws like this in just about all of the states controlled by the Republicans. Once again, I got to say it again, we need political power to ensure our reproductive freedom and that starts in every state legislature, not just the most blue states.

Brian: Maya in the Bronx, you're on WNYC. Hi, Maya.

Maya: Hi, can you hear?

Brian: We can hear you just fine. You're on.

Maya: I actually wanted to comment on what the previous caller was saying about, the caller who mentioned having two daughters and how Roe v. Wade is codified and actually, I just wanted to comment that it's not a codified law because it was a Supreme Court case. I agree it should be codified 100%, but I'm glad that all Supreme Court cases aren't just totally set in stone, because as we've seen in the past, there are Supreme Court cases that have been overturned because of racism, or just a change in the times.

Then I also wanted to comment on the reproductive system and our rights, that I do think a lot of these laws that are coming out are really, they're stemming from religion. A lot of people seem to forget that the church and the state should 100% be totally separate. My last comment is I really hope to live in a world someday where men can stop trying to control women and what we do with our bodies.

Brian: Maya, thank you so much. How do you both explain the disconnect between opinion polls showing a majority of Americans support access to legal abortions, at least in the first trimester, but there are so many state laws restricting it, including 11 states now, as I read it, with laws on the books to make it illegal should Roe versus Wade be overturned. The books are there. If we're allowed to make it illegal, we're going to make it illegal, in 11 states. How do you explain what appears to be a disconnect between public opinion and what state legislatures are doing?

Julie: I think we've talked about this as far as the political power that abortion has become a wedge issue. It's become a rallying cry for the far right, and it's been a winner for them. I don't think it's all bad news. Maya was talking earlier about codification of Roe, and New York is a great example. In 2019, they passed the Reproductive Health Act, which did put Roe into state law and decriminalized abortion. This was in anticipation of the times we're living in at the federal level, and in a lot of the red states that you mentioned. They also opened up abortion, providing to a much wider range of medical providers, so not just doctors, but mid-level providers can offer services, as well as the New York City Council has allowed some funding for women who are traveling from out of state.

New York is an example of where it's being done right, but it doesn't mean that everybody's going to be able to get here. The reality is that in those states where abortion may become illegal, it won't go away, it will just go underground. With the option there for women that it didn't exist before Roe v. Wade is the medication abortion, where you can take a series of pills early in pregnancy, and have an abortion without need for surgical intervention. We're already seeing that women are self-inducing abortions in that using medication in abortion.

It's not ideal, but we need to recognize that reality, and provide support, and make sure there aren't criminal charges and make sure there's a good source of medical advice and supports for those women. We do look at where the glass is half full, but it is, as you say, it's a wedge issue. It's an issue that gets conservatives a lot of play, and those people who are anti-abortion often put that first and foremost, in a way that we haven't seen voters' support around reproductive freedom. Whether, because they've been presuming that everything's signed under Roe still or whether, because it just hasn't been seen as a politically winning issue that we think it now is.

Brian: Let me tell you and tell our listeners that we are coming up in about 30 seconds to the time that we're told Governor Cuomo is going to make his first live appearance since Attorney General Letitia James' report came out last week on the 11 instances of sexual harassment by the governor that the AG documented. Nice of the governor to schedule this for exactly when your segment was supposed to end anyway. If he starts on time, let me just make sure I say the name of your book one more time, which is Controlling Women: What We Must Do Now to Save Reproductive Freedom.

It looks like he's more or less going to start on time. We may get cut off at any moment, I may interrupt you and throw, but let me ask one more question that several callers on the board are asking. That is, why don't you argue, or couldn't you argue on First Amendment freedom of religion grounds? If there are so many mainstream religions that endorse abortion rights, just some that do not, there's a religious divide on this. Why couldn't it be a religious freedom argument, which the right, in general, supposedly stands for?

Kathryn: Brian, that argument has been made in earlier cases. I actually had a couple of cases that made it. It hasn't been successful in the courts, mostly on standing grounds, that is, they couldn't find plaintiffs who specifically had religious views in choosing abortion, therefore it hasn't been successful. Again, this goes back to our thesis in the book, which is this isn't really about religion, this is about control. Therefore, even making a better argument or a different argument on theoretical grounds, doesn't change the power dynamics in the court who is ultimately making the decision.

Let me just go back to Roe. We thought equality was a better framework than privacy. Yet, it really wouldn't have mattered because there weren't votes for a quality. Today, there aren't even votes for privacy, and clearly not for religion, because if you look at the religion cases by this particular court, they're very pro-religion, as long as it's their religion or conservative religions. Less likely to be supportive for other religious views. I think again, what we need to do is not just think about good legal argument, but think about how you get active to make change.

Brian, if I have to leave with one message to people out there, it is do something. I don't care what it is, but you've got to do something to join the fight, and be active on this issue. Work for a political candidate, send money to a candidate, write postcards, whatever it is. You've got to do something to preserve our liberties, because we've learned long ago, that these things don't happen by accident, and they don't change by accident. They need hard work by all of us who care very, very much about preserving the liberties for not only ourselves, but for our children.

Brian: For you as a women's rights attorney, Kathryn, do you want to make any kind of segue into our Cuomo coverage as we wait for the governor to come out? How are you watching that case, if you want to talk about it?

Kathryn: Again, to me, this is all about control that people who abuse women, whether they're men or women, are trying to exercise control over other people, and they use sex or they use abuse to do so. We talk in the book about how you have to be able to live in a violence-free society, and a harassment-free society, in order to be able to make decisions about having families. Our goal is enforcement of laws that prohibit violence against women, and change the culture, so that it's no longer acceptable for men to publicly and privately harass women, either in the workplace, or on the street, or anywhere in their lives.

Julie: Or in the governor's office. I think that's what we've seen with Me Too movement, we've seen with the pushback against street harassment. That kind of energy and creativity, women dressing up as Handmaid's Tale, it's something we talk about and feature in our book a lot. I think that kind of rallying cry to action, and we want to bring abortion rights into that conversation, and out from the cold we saw such great outpouring of women's marches, particularly in response to the Trump administration, but I think that, if we can do anything with this book, it's two lawyers of saying, the courts just aren't the way forward on this.

It's necessary and vital work that's being done in the courts, but that we can't sit back and wait for things to be resolved in that way, and we think that there's a lot of fun ways to have action as well, and to get involved, and we talk about a lot of different ways. The clinic protest defense, or supporting women who are traveling, all kinds of different, more direct actions. That's got to be to the next step forward. The irony that this governor passed a reproductive health act or signed it at the urging of a lot of great activism in New York State, but there's going to be a more comprehensive approach to gender equity and one that includes race equity as well in this.

Brian: Since we are still waiting for the governor, I'm going to get in another call here and it is Raul in Brooklyn. You're on WNYC with Kathryn Kolbert and Julie Kay. Hi, Raul.

Raul: Hi, thank you, Brian, and hello, everyone. I was just wondering about, because I found it very fascinating, the issue of fetal viability since Roe v. Wade is based on that. I saw a report somewhere, about how science is allowing for earlier and earlier fetal viability, and how this may affect any decisions by the Supreme Court.

Kathryn: Actually, that's not true. What is earlier and earlier is higher percentage of survival, but the reality is a fetal lung development is the stage, usually around 22 to 24 weeks, that determines whether or not the fetus will live. Therefore, all of this pushback that Roe is on a collision course with itself, which was argued in the '80s and '90s, is just not true. The the more important fact here is that 90% of all abortions are performed in the first trimester of pregnancy, and only 10% are in the second trimester, and less than 1% are at late stages of pregnancy, past 20 weeks.

The reality is, is that this is an argument that the right uses to exacerbate, to inflame the debate, but the reality is what they're really doing is trying to prevent early abortion, and trying to prevent women from exercising their choices when it's best for them.

Brian: Do you think that varying definitions of viability might be something that the conservative justices hang throwing Roe out on? Like if that was the criteria in 1973, science has changed, and so the whole decision doesn't apply anymore, on that basis?

Kathryn: Possibly.

Julie: I think that will be a stretch for them, but it's-- well, it's possible. I think they are looking at probably the popularity of restricting abortion later in pregnancy, the irony being that so many of the restrictions that are on abortion now simply push women later into pregnancy. If that were really the goal, is to limit abortion access, I don't know what mechanism they're going to actually do, how they consider something burdensome or not, but it's certainly a possibility. The conversation of even having the conversation about the rare pregnancy, the rare abortions that are later in pregnancy, is part of the strategy for turning people against abortion rights.

As Kitty said, the vast majority of them are within the first trimester, and usually the cases that are later in pregnancy are because of, either health threats to the woman, or severe fetal anomalies, or other complications. We really think that the conversation is much more about the earlier abortion.

Brian: Now, I have to jump around to go to Governor Cuomo. I apologize. Thank you again, for all the time today.

 

Copyright © 2021 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.