The Supreme Court and Abortion Access

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. We know the Supreme Court decided that abortion is not a national right. Now, they're contemplating whether to impose a national abortion ban. That's right. It would be a national ban on the abortion pill, mifepristone. The justices, as many of you followed in the news yesterday, heard oral arguments in the case that put that power to ban in their hands.

They would have to overrule the professional medical judgment of the FDA, the Food and Drug Administration. Medication abortions, not surgical ones, ones using the pills, are the majority of them these days. The Supreme Court now has a case that could outlaw most abortions that pregnant people get even in legal states today. We'll talk about yesterday's hearing and put it in the context of the past, present, and future of reproductive rights now with an editor of and a contributor to a new book called Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion.

With us now, Lee Bollinger, First Amendment scholar, law professor, and former president of Columbia University, now co-editor with Geoffrey Stone of this collection of writings, and Mary Ziegler, University of California at Davis law professor and author of her own book, Abortion and the Law in America: A Legal History, Roe v. Wade to the Present, which came out in 2020, and now a contributor to this one on the chilling topic of what the book calls the anti-abortion movement and the punishment prerogative. Again, this book is called Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion. Professor Bollinger, welcome back. Professor Ziegler, welcome to WNYC.

Professor Lee Bollinger: Thank you, Brian.

Professor Mary Ziegler: Thanks for having me.

Brian Lehrer: Professor Bollinger, can you do some oral history with us to start out? Because I see you were a law clerk for Chief Justice Warren Burger when Roe was decided in 1973. You write that Roe, which granted a constitutional right to abortion, crossed ideological lines at the time. Can you tell us some of that story? Because today, we tend to see the question of abortion rights so much through an ideological lens.

Professor Bollinger: Sure. Geoff Stone, my colleague whom you mentioned as my co-author on this volume, Roe v. Dobbs, we're both law clerks at the Supreme Court. I clerked for Burger as you indicated. He clerked for Brennan in 1973. That was the year that Justice Blackmun, joined by a majority of the court, decided Roe. It was a very important decision that grew out of a long line of decisions, going back several decades that expanded and developed the concept of a zone of privacy.

A few years before that, the Supreme Court had upheld the right of citizens to be able to use contraception, to purchase contraception and to use it. Roe grew out of that. It was a major decision, but it was not shocking at the time. It was not highly partisan in the way that it became. Remember that the Republican-appointed justices, Justice Blackmun and Chief Justice Burger, both Nixon appointees, were joined by traditionally liberal-appointed justices.

It was a cross-partisan decision. At that time, it was extremely important to have recognized that there were hundreds of thousands of women who were receiving the worst kind of medical care and suffering enormous consequences. The court intervened in this, both to recognize that this kind of decision about whether to bear a child was really one that should receive constitutional protection.

It also noted the importance of the interests of doctors in this kind of world. It was only subsequent to that as the rights of equality of women developed that the significance of Roe grew. It was also something that became, as we know, one of the most significant political issues of the time. That then, 50 years later, leads to its overturning in the court's decision in Dobbs.

Brian Lehrer: Right, so talking about this consensus almost, it was 7-2, is that right-

Professor Bollinger: That's right.

Brian Lehrer: -at the time, Roe v. Wade, this consensus? You also say in the book that Roe was not even, at the time, considered a radical expansion of constitutional rights. You all working at the court at the time as you did. Did you think you had just been involved in an era-defining decision or not so much?

Professor Bollinger: Yes, I think the answer to that is no. It really was an important decision. Remember, at that time, the Warren Court building upon the major decision, the truly outstanding decision of the court in Brown v. Board of Education, roughly two decades before that, that became the basis for a lot of really significant decisions about the First Amendment, about criminal procedure, about political voting, about a whole range of issues. The constitutional development at that time was formative. Roe was of a piece of that, but it wasn't the defining decision of the era. It was striking over time to see it develop into this highly, highly politicized issue.

Brian Lehrer: Professor Ziegler, your chapter on the anti-abortion movement and the punishment prerogative, as you call it. I'm just going to state some of the very provocative subheads in your chapter and invite you to elaborate. First, you write about what's called the origins and efficacy of criminalization. How far back and to what context do you trace the origins of criminalization and punishment with respect to abortion?

Professor Ziegler: Well, from the very beginning in the 19th century, the American Medical Association championed laws criminalizing abortion throughout pregnancy. If you go even further back than that, there were laws that regulated abortion under the general heading of poison because some concoctions people took to end pregnancies were poisonous.

By the 19th century, you began to get some doctors saying abortion was morally wrong because of its impact on fetuses or unborn children, because of its impact on marriages and women's role in serving their husbands, and because of what it meant demographically for the nation. Interestingly, though, if you fast forward to the 1960s or '70s, when you get the modern anti-abortion movement, it was more contested whether and how much punishment should be the central objective of the movement that claimed to advance fetal rights.

The really strong yes to that question came in part because the anti-abortion movement was aligning with the Republican Party, which was radically expanding the criminal system at the time with things like mandatory minimum sentences and enhanced penalties for crack cocaine, in part because the movement was aligning with the conservative legal movement, which looked askance at some of the Supreme Court's decisions on protections from criminal defendants. The extent to which now we think of the anti-abortion movement or even its embrace of fetal personhood as being synonymous with punishment is more a function of American 20th-century politics and law than it was anything inherent in the idea itself.

Brian Lehrer: How were women punished criminally for abortions before Roe?

Professor Ziegler: Well, infrequently, right? We have examples of women being criminally targeted themselves. We know the original architects of the 19th-century anti-abortion movement wanted them to be, particularly if they were married. Prosecutors often instead favored an approach where they would essentially not prosecute women in the hope that they would serve as the critical witnesses against their doctors or, in the case if they had passed away because of an abortion, their dying declarations would be used against physicians. The push to punish women has actually gained momentum since Dobbs in the form of the so-called abolitionist movement.

These are people in the anti-abortion movement who argue that if a fetus is a person and we punish women for harming other persons like, for example, in the cases of infanticide or homicide, surely we have to punish women for abortion too. This movement's gained influence in the Southern Baptist Convention, which is, of course, incredibly powerful in the United States. It's gaining influence in the broader anti-abortion movement. I think the question of when and whether women will be punished and, of course, other pregnant people or abortion seekers as well, I think, is gaining more and more attention. This one we'll see revisited in the years to come.

Brian Lehrer: Yes, and reading your chapter made me remember a particular moment from the 2016 presidential campaign, which maybe become salient again as Donald Trump, who, of course, won the 2016 presidential election, is running again. This is a moment when he was on MSNBC with the host, Chris Matthews. Listen.

Chris Matthews: Should a woman be punished for having an abortion?

Donald Trump: Look--

Chris Matthews: This is not something you can dodge. If you say abortion is a crime or abortion is murder, you have to deal with it under the law. Should abortion be punished?

Donald Trump: Well, people in certain parts of the Republican Party and conservative Republicans would say, "Yes, they should be punished."

Chris Matthews: How about you?

Donald Trump: I would say that it's a very serious problem and that's a problem that we have to decide on. It's very hard.

Chris Matthews: You're for banning it.

Donald Trump: Wait. Are you going to say put them in jail? Is that the punishment that you're talking about?

Chris Matthews: No, what I'm asking you because you say you want to ban it. What does that mean?

Donald Trump: I am pro-life, yes.

Chris Matthews: How do you ban abortion? How do you actually do it?

Donald Trump: Well, you'll go back to a position like they had where people will perhaps go to illegal places, but you have to ban it.

Brian Lehrer: They went back and forth. As you heard, Trump didn't give a yes or no answer to the yes-or-no question yet. Here's how that exchange ended.

Chris Matthews: Do you believe in punishment for abortion? Yes or no is the principle.

Donald Trump: The answer is that there has to be some form of punishment.

Chris Matthews: For the woman?

Donald Trump: Yes, there has to be some form.

Chris Matthews: 10 years, what?

Donald Trump: That, I don't know.

Chris Matthews: Why not?

Donald Trump: I don't know.

Chris Matthews: You take positions in everything else.

Donald Trump: Frankly, I do take positions in everything else. It's a very complicated position.

Brian Lehrer: Pretty good interviewing by Chris Matthews there. A politician, in this case, Donald Trump, was trying very hard not to give a yes or no answer to a yes-or-no question. Chris Matthews pushed him into it. Professor Ziegler, having written this chapter on punishment and abortion, I'm sure you were aware of that moment.

Professor Ziegler: Yes, I was. Again, this was a point at which Donald Trump wasn't on an island saying this that these questions were being raised by groups all over the country. This debate, I think, is increasingly visible now. We began to see state lawmakers pushing fetal personhood bills authorizing the punishment of women. Of course, we've seen proxies of President Trump, people who worked in his first administration, people who've represented him in court, saying that there's a 19th-century statute called the Comstock Act.

That is still on the books. It's an obscenity law that Professor Bollinger, I'm sure, is familiar with on First Amendment grounds that anti-abortion groups are now saying is a ban on mailing abortion-related items that can and should be used to punish women who receive those items in the mail. We're going to see questions about punishment front and center if there is, in fact, a second Trump administration.

Brian Lehrer: Right. We should say in fairness that Trump then tried to backtrack on the answer that he gave Chris Matthews there. Maybe he didn't think he was going to be pinned down into a yes-or-no answer and then he later kind of tried to take it back. We didn't see a push for criminalization in the Trump administration, but we did see the push for removing Roe, which, of course, they succeeded in. Would you say, Professor Ziegler, that we did see a push for criminalization in the Trump administration and would see it again likely if he's reelected?

Professor Ziegler: We didn't see much of a push in part because Roe v. Wade was in the way. States were passing trigger laws and other proposals to criminalize abortion, but they knew that those couldn't go into effect until the Supreme Court reversed Roe v. Wade. Now, of course, as you've both been saying, Roe v. Wade is gone and that opens the door to much broader possibilities.

Anti-abortion groups have been sketching ways that the Trump administration could impose essentially backdoor national prohibitions on abortion through executive power, not relying on Congress. Some of those like, as I mentioned, the Comstock Act would include the possibility potentially of punishing women. Because if you interpret this law the way that people in Trump's orbit do, it just makes it a crime to mail or receive any abortion-related item for anyone with no exceptions for things like sexual assault or life of the patient. That, of course, would, in theory, mean the punishment of women as much as anybody else.

Brian Lehrer: If you're just joining us, our guests are Lee Bollinger, co-editor of, and Mary Ziegler, contributor to a new book called Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion. They're both law professors. Lee Bollinger at Columbia University, where, of course, he used to be the president, and Mary Ziegler at UC Davis. This kind of circles back, Professor Bollinger, to something that you said earlier, which is that one of the reasons for Roe in 1973 when you were a law clerk at the Supreme Court was to protect doctors from criminalization.

Mary was just talking about how, in some cases, over US history, women were not prosecuted for the abortions they received because they were being used to testify against doctors. You also say in the book with the justices being interested in doctors' rights in addition to women's rights-- Well, you say that in the book and my question is, isn't that the basis for the case that the Supreme Court heard yesterday that some anti-abortion doctors didn't want to be forced into performing emergency abortions in some way or other in the rare case of something going wrong with a mifepristone abortion?

Professor Bollinger: Yes, it is, although I think Mary is really the expert to talk about the role of that case and the development of Dobbs, the post-Dobbs world. I think what I would say, Brian, is when you listen to Mary, you really get a sense of both the complexity of the problem that we're talking about, constitutional right to abortion or not, what should be the state responses, what should be the federal responses, how should all these issues be decided, and make a couple of points.

One is that the Supreme Court in Dobbs, the majority, made a very special case that they needed to overrule Dobbs or Roe in order to make the system function that is the state legislatures and the political process to deal with these problems with the idea that before Dobbs and after Roe, the society had been riven by these problems. What we're seeing now is, of course, a society riven by these problems. It's extremely important to see just how difficult it is to take this issue and to resolve it in a political process.

The second point I'd make is to go back to where we were a while ago in speaking about how the decision of Roe and the issue of a right to abortion under the Constitution really crossed party lines, crossed the political spectrum. Not only was Roe decided by Republican-appointed justices and Democrat-appointed justices, but subsequent cases, major cases, a case in the early 1990s also continued that tradition of a kind of non-partisan resolution in the Supreme Court about how to deal with the right to abortion.

It was Dobbs that really conveyed this sense that the political process produced a determination to have a particular constitutional interpretation that is to overrule Roe and did achieve that in Dobbs, but did so at an enormous cost to the credibility and reputation of the Supreme Court. It really added significantly and I would say among the recent decisions of the court, most significantly to the perception that the court is more of a political body than a judicial body.

I think there's a lot to be said on that issue. Very, very complex. When you conjoin a political system that has made the right to abortion, the signal issue for Republicans and Democrats, and then you have justices appointed with the specific agenda of overturning that particular decision, changing constitutional course, there's a huge risk to the role of the Supreme Court in American society when that actually happens. I think when you look at Dobbs, that's a serious matter.

Brian Lehrer: When we come back from a break, we'll pick it up right there and talk about the hearing at the Supreme Court yesterday on banning the abortion pill, mifepristone. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we continue with Lee Bollinger, co-editor of, and Mary Ziegler, contributor to the new book, Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion. 212-433-WNYC. If you have a comment or a question, call or text 212-433-9692. We'll have time for just a few. If you want to get in on it with something relevant, give it a shot. Let's go on briefly to yesterday's Supreme Court hearing on the abortion pill, mifepristone. Professor Ziegler, based on the questioning yesterday, nobody seems to think that justices are actually going to ban mifepristone. Do you have a reason to see it any differently?

Professor Ziegler: No, it seemed as if almost all of the justices, with the exception of Justice Alito and maybe Justice Thomas, were convinced that these particular plaintiffs didn't have standing. It was sort of actually awkward to listen to the questioning. It was so clear that the argument was going badly for the anti-abortion doctors bringing this suit. I think that's what we're expecting to see. I think there'll still be interesting things to come out of this case. One, it's only one of two major abortion cases before the Supreme Court this term.

A different abortion question will be before the justices in about a month and, two, because several of the conservative justices signaled their belief that this obscenity law, the Comstock Act, made it a crime to mail abortion-related items. I think we're going to see shots fired on that front. We're likely to see related questions on the Comstock Act before the US Supreme Court again sooner or later.

Brian Lehrer: That's at the level of the court. Professor Ziegler, let's assume the court does not ban mifepristone in this case. If anti-abortion rights Donald Trump is elected president again, could he put a new FDA leadership in place that would do it at the regulatory level without having to go to the Supreme Court?

Professor Ziegler: Yes, there have been some proposals to this effect from conservative groups that are suggesting either that FDA should do this or that if FDA scientists are unwilling to that the Secretary of Health and Human Services should try to invoke authority under federal law to override what scientists at FDA want and to take this drug off the market.

There have also been proposals that President Trump's Justice Department, for example, could start enforcing the Comstock Act against doctors or drug companies that mail these pills. There are lots of possibilities, I think, that conservatives are exploring that if Trump is in office, these pills will not be available. In fact, receipt of these pills may be criminal if Trump is in the White House.

Brian Lehrer: Professor Bollinger, listener texts, "In questioning the plaintiffs' standing yesterday--" because that was a big issue whether these anti-abortion doctors even have standing to challenge the FDA ruling approving mifepristone is safe and effective, "In questioning the plaintiffs' standing yesterday, conservative justices liken them to civil rights testers using even this case to advance their own rightward agenda by throwing doubt onto the legal standing of such testers." Do you understand the question and the concept of testers?

Professor Bollinger: Do I understand it?

Brian Lehrer: Yes.

Professor Bollinger: [laughs] Mary is such an expert on this. I really want to defer to her on this. It's so ironic though to hear the idea of civil rights in the context of post-Dobbs world and in the context of Dobbs because it really was the development of jurisprudence in the Warren Court era, the '50s, '60s, and into the '70s. That was built around the movements of civil rights. The efforts to try to achieve equality for African Americans spread over into many areas of the public life and of the Constitution, including abortion. Because abortion, as we know when it's prohibited, the disadvantages fall disproportionately on poor and African American women.

Now, one of the things that's so striking about the majority in the Supreme Court is the overturning of so many of the major decisions of that period. Recently, of course, as we know, the court reversed course on affirmative action. They've done other issues, involved other issues with voting and the like. What we're at is a tectonic shift in constitutional jurisprudence that moves from the era of civil rights and all that happened then to an era in which the Constitution is really not attentive to those questions.

Brian Lehrer: Professor Ziegler, I took the listeners' question to mean these plaintiffs really didn't think they would win, but they're raising the issue at the Supreme Court to lay the groundwork for the very idea that this is a matter of debate rather than something that shouldn't even be debated at all. A group of individual doctors or the Supreme Court justices with their law degrees questioning the medical judgment of the FDA experts.

Professor Ziegler: I think this is a signal that, certainly, a lot of conservative movements, and this is obviously true of the anti-abortion movement, would really like the Supreme Court to be resolving a lot of the questions of the day right now because they've had a hard time when they're contesting those questions before voters and ballot initiatives or even in national elections. The federal courts are much friendlier terrain.

I think there was a sort of, "Why not try to establish standing?" Because if you do, you get the possibility of a national ban that voters would never enact. If you do, of course, you open the door to many other conservative movements to come to the Supreme Court and try to do the same thing. We've seen in recent years, the court be amenable to much more expansive arguments for standing, for example, in LGBTQ rights cases.

It wasn't impossible to imagine the courts would go for this too, but we saw even, for example, Justice Gorsuch asking how this got to be the case that doctors who were claiming they wanted a kind of conscience based out from having to perform abortions were somehow asking the Supreme Court to cut off access to a pill for everyone. That kind of mismatch as Justice Ketanji Brown Jackson put it, I think, was pretty evident to almost everyone on the Supreme Court.

Brian Lehrer: Let me get one more listener question in here. Kylie in Northern Virginia, you're on WNYC. Hi, Kylie.

Kylie: Hi, Brian. Hi, everyone. I'm going to put forth a promising legal approach that I've heard from a good friend of mine from undergrad. She's a lawyer, I think, in Texas, I'm not sure. Her point is this. I'm just going to read this straight from her Twitter feed. She says, "If a fetus is a person that's six weeks pregnant, is that when the child support starts? Is that also when you can't deport the mother because she's carrying a US citizen? Can I insure a six-week fetus and collect if I miscarry? Just figuring, if we're going here, we should go all in." I interpret that as basically her taking this anti-abortion argument to a conclusion that conservatives would probably rather avoid. I see that as a way to back them off and I wondered if your guest could respond to that.

Brian Lehrer: Professor Ziegler?

Professor Ziegler: Yes. The book I'm writing on now is on fetal personhood. That's a really important question because for a long time and in other nations, supporting the idea that a fetus is a person with rights doesn't particularly mean focusing on punishing anyone, much less women, and does lead, for example, to some kind of government obligation to support pregnant people, whether that's through safe housing, food, protection from employment discrimination.

We've seen this cropping up post-Dobbs. We've seen people saying, "Well, if I'm pregnant, I get to drive in the HOV lane," or, "I was pregnant and my employer didn't let me leave when I was experiencing symptoms of miscarriage and I lost my child, so I'm going to sue for wrongful death." We've seen people saying, "Well, surely, there must be something in it for me too if I'm pregnant. It can't just be about punishment."

I think that's a completely legitimate argument. It's not clear that that argument is going to get traction today simply because of the way our politics have aligned, but I think it's important to remember that the vision of fetal personhood that's dominant now, which is so much about punishment, isn't inevitable. It doesn't have to be the one that continues to define our politics.

Brian Lehrer: Professor Bollinger, before you go, I want to ask you briefly since you were the president of Columbia University for-- I think it was 17 years ending just last year. If I may, on the environment on campus now, very contentious and with a lot of press coverage since October 7th, I see that lawsuits have been filed against the university this year on behalf of Jewish students and on behalf of pro-Palestinian demonstrators. There was that awful chemical substance attack on pro-Palestinian protestors right there on campus. Reportedly, from what I read by other Columbia students, it seems like neither group feels safe at Columbia right now. What does it look like to you since you still teach there?

Professor Bollinger: Well, I served for 21 years. It is a very, very difficult time at Columbia, at other universities, and in the society. I think there's no question that there is a really appalling rise of anti-Semitism in the country and it manifests itself on American campuses. There is also Islamophobia and that's a terrible thing as well. I think that the problems have to be thought about in this way. Anti-Semitism, just focus on that, is, of course, a horrendous thing.

We all condemn it. We all should be doing everything we can to stop it just as we do with other forms of discrimination. We also have a deep commitment to freedom of speech. That has been interpreted over the past century as protecting really terrible speech as well as great speech. We know that neo-Nazis have been protected. The Klan has been protected. This is a deep commitment in the society.

These two things, these two great values of not discriminating against people invidiously and having freedom of speech that includes, unfortunately but necessarily, speech-advocating discrimination and worse, those two great principles are colliding. They're colliding on American campuses. I think it's extremely important for leaders to speak out about these matters. I tried to do so multiple times over the course of my presidency. I know that that's happening with the new administration and Minouche Shafik, who is the president, my successor, and trying to do everything they can to try to combat these evils on the campuses. It's a very difficult environment and I have great empathy for them.

Brian Lehrer: I stand corrected on the length of your tenure. Obviously, 21 years, as you said. How, last question, did an intellectually sophisticated place like Columbia get to the point where some students are taking down photos of Israeli hostages? There was that chemical substance attack on the demonstrators. Pro-Palestinian demonstrators are accusing the college in court of violating their free-speech laws by banning a couple of the groups that held protests. Many Jewish students do not feel safe. How did a place like Columbia get to that point?

Professor Bollinger: I think it would be wrong to think that Columbia is unique in this. I really do think that other universities are encountering these incredibly difficult problems and very bad behavior. There's no question about the kinds of behavior you're talking about. It's also in the society. Anytime you have something that is just hotly contested, people feel passionately about things.

They have ways of interpreting issues. Anytime you have that, it's going to manifest itself on our campuses. I think the question really is, can we join together in a kind of ethic of goodwill and try to grapple with these? I'm very, very concerned about the efforts to politicize these troubles and to make them into symbols for political purposes rather than helping to address the real problems.

Brian Lehrer: Lee Bollinger, now a law professor at Columbia, is co-editor of, and Mary Ziegler, University of California at Davis law professor, is a contributor to the new book, Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion. Thank you much for joining us.

Professor Bollinger: Thank you, Brian.

Professor Ziegler: Thanks for having--

 

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