Consensus, Democracy, and Roe v. Wade
Air Date: October 11, 2021
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. My guest today is Mary Ziegler. She’s the Stearns Weaver Miller professor at Florida State University’s College of Law. She specializes in the history of reproduction, the family, sexuality, and the constitution, and she’s the author of the most recent book “Abortion and the Law in America:” a legal history “Roe v. Wade to the Present” which was published by Cambridge University Press. Thank you so much for joining me today, Mary.
ZIEGLER: Thanks for having me.
HEFFNER: Mary, what do you anticipate that the Supreme Court will do with the active Mississippi case after its decision in the Texas case, which in effect outlawed Roe v. Wade, in effect, made it extremely challenging if not impossible and illegal for women to have abortion in Texas, what’s your assessment of what’s to come in this Mississippi case?
ZIEGLER: Well, I think the writing is on the wall in the sense that I think the Supreme Court will overrule Roe v. Wade. I don’t know if the Supreme Court will overrule Roe v. Wade in June of 2022 in the Mississippi case, which is Dobbs versus Jackson Women’s Health Organization. I think it’s more likely that the court uses Dobbs to kind of tee up an opinion, overruling Roe in a year or two, and takes a big chunk out of Roe. It’s worth sort of breaking down why people think this. So the Mississippi law bans abortion at 15 weeks, which is the point at which the state says fetal pain is possible. What’s significant about that is that 15 weeks is roughly nine weeks before fetal viability, which is when survival is possible outside of the womb and the right to choose at least at the moment under Supreme Court precedent applies until viability. So to uphold the Mississippi law, you either need to overrule Roe v. Wade entirely, or you need to get rid of viability as the dividing line. So I would more expect the court to do the latter rather than the former, but I’m less confident in my prediction after the Texas ruling than I was before. So I think it’s possible we see Roe get overturned outright by the summer of 2022.
HEFFNER: So the Texas ruling changed your calculus perhaps to some degree. For those who aren’t hadn’t followed the specifics of the Texas law, what does it do, in effect?
ZIEGLER: So the Texas law, in some ways, it’s familiar. It’s one of these heartbeat bills that ban abortion when fetal cardiac activity can be detected, which is usually around two weeks after someone could figure out that they’re pregnant, either, you know, by taking a pregnancy test for a missed period. What’s unusual about the Texas law is that most of these heartbeat bills criminalize abortion at that point, you know, and then subject people to prison time or fines. Texas instead outsourced enforcement to these bounty hunters. And instead of making it criminal said that anyone who sues, and I mean, literally anyone, it could be, they don’t have to know anybody involved in the abortion. They don’t have to be in the state of Texas. They don’t have to have anything to do with anything, can sue and recover at least $10,000 dollars. It’s not clear if you can get more than $10,000, or just $10,000, but each abortion, right, is worth that $10,000 dollars, plus attorney’s fees, which the people doing the suing can receive and the people being sued almost certainly cannot. So it creates this huge financial incentive to enforce the law. And there are lots of reasons the state did this, but one of them was to insulate itself against review in federal court.
HEFFNER: Can multiple people sue the same person that they say violated the law?
ZIEGLER: Not for the same abortion. The law seems to say that you can’t sue twice for the same abortion. And another thing that’s significant is you don’t, the law doesn’t just authorize lawsuits against abortion providers. It also authorizes lawsuits against people who aid or abet in an abortion, which could be anything from insurance companies covering the cost of abortion to, you know, a family member driving someone to an abortion, even, you know, an Uber driver under certain circumstances driving someone to an abortion. So the sweep is much bigger than just people providing abortions.
HEFFNER: It’s those who assist and the providers and the folks who are having the abortions themselves, are they also vulnerable to being sued?
ZIEGLER: Not at the moment. So the law rules out lawsuits against people who actually have abortions. Of course, they could be forced to, you know, come into court and testify about things that are sensitive, like sexual assault, but they can’t actually be sued themselves. You can wonder how long that will last, because of course in practice, one of the strategies that’s open to people who want to have abortions in Texas at the moment, is to order abortion medication online. And it’ll be very hard for Texas to enforce this law in the long-term if the state does not allow some form of penalty against people using abortion medication, because otherwise the law has a huge loophole, but at the moment that’s not permitted.
HEFFNER: And there’s no criminal penalty. It’s just these monetary fines?
ZIEGLER: Right. I mean, it’s pretty clear from the language of the law and from research I’ve done that this is a precursor to a criminal bill that the state is hoping it can put into place once Roe has been overturned. Even the language of aiding or abetting, right, that’s not something that we say in our civil justice system, that’s criminal law language. But this is a civil bill. I think more kind of a forerunner to what Texas lawmakers hope is a criminal bill that can fall into place once Roe v. Wade has been overturned.
HEFFNER: Is your sense that, I know there’ve been reports of women who were seeking reproductive care outside of the boundaries of Texas now, Oklahoma or elsewhere, but because of the absence of criminal penalty, incarceration, is your, is your feeling that based on the research you’ve done that, that abortion will largely continue in the state, even with this law enacted?
ZIEGLER: I mean, I don’t think, I think the law is absolutely intended to have an effect. What it was intended to do was what happened initially, which was that abortion providers looked at the possibility of ruinous legal liability and said, you know, we’re going to stop performing abortions after six weeks. It’s pretty clear that whether or not the court reverses Roe or whether or not this law is in effect, people will have abortions. The question really, I think is when and how often you’re going to see people, probably I think later abortions, maybe people having riskier abortions, maybe people having abortions that involve more complications and potential health risks. And there’ll be of course, a subset of people who can’t navigate the system or don’t want to risk what they see as liability and don’t have abortions at all.
HEFFNER: Do you think that anti-choice legislators, that is to say legislators who comprise legislatures across the country that would by a majority vote, that they are waiting for, in effect, permission or endorsement from the Supreme Court, and that, that has been kind of what they’d been waiting for years, if not decades, in order to institute the harsher laws, like what I would presume you would say is Mississippi’s in some respect?
ZIEGLER: Yeah. I mean, I don’t think that that people in anti-abortion lawmakers in the states, really, we’re waiting for the Supreme Court. They kind of figured once they had Brett Kavanaugh in 2018, 2019, and Amy Coney Barrett in 2020, 2021, that they didn’t need to wait. This was, if you look at the legislation that’s coming out of conservative states in those timeframes, there’s already bans. And the reason for that is because anti-abortion lawmakers in those states feel very confident that they already have the Supreme Court that will uphold these laws. So they don’t, they aren’t even waiting for confirmation of that from the Supreme Court. They’re ahead of the ball, if you will, and are already passing these laws. And so far, we, I mean, the fact that the court took this Mississippi case suggests that, that the people who are running these conservative states may be right in their predictions about what the Court’s going to do.
HEFFNER: What is the penalty in the Mississippi law?
ZIEGLER: It’s a criminal law. So it, unlike, it’s not a civil law, I don’t remember the exact penalty, but
HEFFNER: But it’s jail, it’s jail time.
ZIEGLER: And, and fines. Yeah.
HEFFNER: I say that because I think that there are those who are as activated by this issue who are in dominant positions and legislatures from Florida to West Virginia, to some of the plains states who, you know, they haven’t instituted the harshest laws there probably, you know, a lot of examples of draft legislation that hasn’t voted in, been voted on for one reason or another. But I, I have had the sense that you know, while the, the number of abortion providers has dwindled in a number of these states, the sort of draconian Gilead-style, you know, laws of enforcing criminal penalty for women to, you know, preventing them from accessing reproductive health is, that is what we are forewarned is, is imminent. And, you seem to think that it’s quite possible that the way the Supreme Court rules could open the flood gates to just that: a Missouri law that would, you know, incarcerate an abortion provider for 25 years. I mean, something rather extreme and, you know, that’s extreme in and of itself. And it’s very far away from what the Court envisioned in Roe.
ZIEGLER: Yeah, I mean, it, it already started when the court had this conservative, super majority put in place. So you’re seeing things like rape and incest exceptions fall out, you’re seeing much earlier bans. So we would expect to see probably the closest thing to what we are going to see if Roe is overturned was Alabama’s 2019 law, which bans abortion at fertilization, with no exceptions for rape or incest and I think subjects doctors to 99 years in prison. Most of the laws, I think at the beginning are not going to punish pregnant people or women. I think that’s probably going to take a little while. But that’s what we are going to expect. And in terms of how many states, somewhere between 20 and 25, they’re going to be, you know, your classic red states as there are in elections, and you’re going to be swing states when it comes to abortion, too, that have more complicated politics. Like Florida is an interesting example because Florida has a quite high abortion rate, a quite high per capita abortion rate. And it’s, it’s a purple state, right. So, you know, they’re, they’ve Florida has defeated, you know, state constitutional anti-abortion amendments, like 55 – 45, right. So whether that’s going to look more like Alabama, more like California, or somewhere in the middle, I think will be determined if, and when Roe is overturned.
HEFFNER: Just speaking from your boots on the ground there at Florida State, what specifically would you envision coming out of the DeSantis administration or from the Republican-controlled legislature, should the Mississippi lobby upheld, should, you know, Roe be overturned, I suppose again, it’s that question of how it’s overturned or, or how it’s it’s, you know, the, the jurisprudence, the jurisprudence changes, but what do you envision being the output in your home state?
ZIEGLER: Well, I think it depends, it’s, it’s a tricky thing politically for Republicans in a way most people probably can’t anticipate. So on the one hand base voters, right, which is increasingly the voters that the Republican party relies on, both because the party is shrinking the electorate, and because the is focusing increasingly on a turnout-based strategy. Base voters want, you know, extreme abortion bills, right? So on the one hand, you would expect to see someone like DeSantis, who’s running for president in 2024 absent a Donald Trump bid, to try to cater to those voters, because that would be a core dimension of a 2024 primary strategy or a 2024 general election strategy, or even really a bid to maintain the governorship of Florida. On the other hand, there’s very little sign that in a state like Florida, that banning abortion at conception or banning abortion at six weeks is something that voters actually want. So it, it’s going to be tricky. And we’ve seen this already Florida lawmakers filed the Texas-style bill and Governor DeSantis has spent, I think the past week, like trying to say he hasn’t read it or no comment, or then that’s symptomatic, I think, of a problem confronting the broader GOP, which is that these bills are clearly a win for some local lawmakers, like the state legislators in Texas who passed SBA. But in other contexts, the more you go to the sort of the state level, the national level, the politics get very complicated because it was great to run against Roe v. Wade. It was great to raise money on the idea of overruling Roe v. Wade, but what you do when Roe v. Wade is gone without alienating, some part of the electorate is not as obvious.
HEFFNER: Even though there are legislators who are more prepared today than five years ago or 10 years ago who say I am anti-choice, even in the case of rape and incest, I mean there’ve been more politicians who were expressing that view, whether their constituents share it or not. I don’t know if you agree with that or to what you attribute it?
ZIEGLER: Yeah, totally.
HEFFNER: I mean to what do you attribute that?
ZIEGLER: Well, it’s, I think at the end of the day, no one or not, no one, but the vast majority of people in the anti-abortion movement never supported rape or incest exceptions, because they’re inconsistent with the movement’s raison d’etre, right? So if you, if you consider yourself pro-life you think that a fetus or an unborn child is a rights-holding person, and if that life in the womb is a rights-holding person, you can’t kill it because of rape or incest any more than you could a living child, like, you know, a four-year-old that was conceived by rape or incest. So that never made sense as an exception. It was a political necessity, but now again, that they assume the Supreme Court is on their side and will sign off on whatever they do, they’re being honest about what they want. I think this also goes with the fact that the GOP in general is no longer catering to meet the median voter and is catering instead to the base.
And if the median voter likes rape or incest exceptions, that no longer is a paramount concern to most people in the GOP. So I think those are both the reasons we’re seeing that. It’s definitely not the case that public opinion on rape or incest exceptions have changed. Well, I mean, one of the things that’s really the most remarkable about polling on abortion is that there’s been pretty tremendous consistency on a lot of substantive questions since the seventies, including on things like rape or incest exceptions, which are supported actually by a majority of both Republicans and Democrats in most polls.
HEFFNER: And not only are those exceptions warranted in the minds of voters, but consistently I think you’re alluding to the fact that the majority of this country does favor access to reproductive health being legal and safe. And this is where I’m really interested in your perspective because there is an element of jurisdiction that is so missing in all their jurisprudential analysis of, you know, what the voters want and this question about democracy. And I find it fascinating, this idea that the people who would like, you know, in the case of Missouri, I mentioned, but let’s take the case of Mississippi. If you did hold an initiative or a referendum, a constant state constitution question, right, in a state like Mississippi the anti-choice choice vote may win in, in, that may be true of Missouri today too, or the Dakotas or Iowa, Idaho you know, what we would call more conservative states that have tended to side on that. But what what’s so interesting to me is in this conversation about federalism and supporting the rights of states, we’ve gone through generations of, you know, this question of state’s rights and what if states are violating fundamental human rights. And that’s where this is, but what makes this most interesting to me is the fact that the United States Supreme Court has a 63 pro-life, if you will, or antiabortion majority. And a majority of those six, and a majority of the Court was appointed by presidents who did not win the popular vote, who did not win the popular vote in the case of Donald Trump’s three appointments. In the case of George W. Bush two justices. In the second term he did win the popular vote in the second term. So it’s not quite fair to analogize them as if they’re exactly the same. He did not win the popular vote in 2000. But it’s just interesting to me to look at that from the Federalist perspective of federalism in this country and the idea that the Supreme Court, that the American people are being deprived of the will of the majority now, in the way the Supreme Court is going to rule on Roe, as well as a host of other matters. And is it not the perspective of the folks in the states that I mentioned, and they’re not all the same, but the states where if you did take a vote on a constitutional amendment, it would likely come out to outlaw abortion, that they say they’ve been deprived up to, to be able to assert the popular will of the people in their state for so many years on this issue. I mean, that to me is the crux of this issue. And I just wonder your reaction?
ZIEGLER: Yeah. I mean, as a historian I’ve always been skeptical of those arguments, really on either side, because when you dig a little deeper, no one wants this to be resolved democratically. So anti-abortion folks in the Mississippi case have submitted tons and tons of Amicus briefs saying after you’re done overruling Roe, you should, in a subsequent case, or in this case recognize that a fetus or unborn child is a person under the 14th amendment, and that therefore abortion is unconstitutional throughout the United States. So that means it’s New York and California can’t decide to have abortion in Alabama. Not, no one can decide. And of course, you know, conversely, if you were pro-choice and you believe right to choose abortion as a fundamental, right, you don’t want Alabama getting to decide that it isn’t right. So this is a situation where arguments about democracy have, they’re actually really complicated and they’re really substantive. And they go to, I think, issues beyond just abortion in terms of most of us believe that there are fundamental rights that the courts should safeguard and that popular majority shouldn’t be able to eliminate. And most of us are also uncomfortable with the idea that an unelected Supreme Court gets to decide which rights those are. And we see this kind of schizophrenia playing out in the abortion debate where everyone sort of strategically says, oh, this is not democratic. This is inconsistent with federalism, but then when the rubber meets the road, they want the Supreme Court to protect the right of their choice against the democratic majority too. So it’s not really an area where you see a lot of consistency, and I don’t think you can really blame the social movements involved that much, because the right role of the judiciary and safeguarding rights, one that is not too anti-democratic is something that a lot of smart people have not really yet figured out in my opinion.
HEFFNER: But shouldn’t there be a grownup in the room to adjudicate this? By that, I mean, you know, there are those people, and maybe it is 40 some percent of the country who oppose abortion rights or access, and at least in their township or neighborhood, they don’t want that to be available, right. And I mean, that’s their position and you know, like, like taxation there’s certain issues that there isn’t a lot of room for malleability. I mean, you’re born in a certain zip code. You’re going to, you’re going to stay fully formed in that position from, from, you know, your early years onward. I mean, there’s some variation involved, but the point is, I asked you earlier on about jurisdiction and, and the fact that the shadow docket has revealed this vast jurisdiction in Supreme Court that basically could rule on a local matter without any argument, without any evidence and could completely, if it wanted changed the complexion of law in this country, on any given subject. So obviously that’s not methodical. That’s not reasoned. I don’t think that’s what the founders envisioned, whether you believe in textualism or living constitutionalism, but at a very fundamental level I think the only way to ever satisfy people on this issue and still live in the United States of America, is to have a geographic approach, to basically allow for the popular will to be expressed according to, you know, people’s preference and accordingly their interpretation of the constitution in different places.
ZIEGLER: Yeah. I mean, I don’t know if that would work. Historically it didn’t work because there was always this promise, this sort of distant dream, right, of like one side could impose its will on everyone else. And that’s always what both sides have wanted and continue to want. And the other thing that makes it so unstable is that there’s something like a national consensus on abortion in the U.S. that resembles the consensus and solution that we see through most of Europe, which is to say there’s a lot of support for abortion being legal and being a right, especially in the first 12 weeks of pregnancy. And that support falls off the later in pregnancy you go, except for, in cases, for example, like medical emergencies or medical conditions fetal conditions incompatible with life. There’s no way any party or any state anywhere is going to adopt a solution like that anytime soon, even though popular majorities would support it because again, our political parties cater to people who care the most about this issue, who tend to be either the most anti-abortion or the most supportive of abortion rights. And so we’re in this sort of weird dynamic where even if we let every state decide for itself, that would not satisfy people who either believe abortion is a fundamental human right, or people who believe abortion is murder. If you believe abortion is murder, you’re not going to be okay with leaving abortion legal in New York and California, where the vast majority of abortions are performed. I mean, frankly, you know, criminalizing abortion in places like Alabama, isn’t going to make that much of a difference given how laws…
HEFFNER: But. But. Right. And we only have seconds left. But then again, those, you know, Texas is a case in point where if you held a ballot initiative, likely the reason that it generated so much controversy is because Roe v. Wade would be upheld in Texas on a ballot initiative, unlike necessarily in Mississippi. But when I said geographic approach, I really mean regional approach to the jurisdiction questions about this, because I’m not suggesting that kumbaya is feasible on this issue, especially in the climate you’re describing where the, the stakeholders tend to be the most zealous on, on each side. But I just wonder if we’re, if we’re losing an opportunity to be more imaginative in in how we can try to legally and morally resolve this. And, and it’s entirely…
ZIEGLER: I think that’s right. I think we may be, we may find out, right, because if Roe is gone, people may care more about abortion, that is to say, voters who are in the middle, which is most voters, may actually vote more on that basis. Because at the moment, our weird dynamic where people, or people’s local elections and national elections, don’t really reflect popular opinion on abortion, have to do with the fact that people don’t prioritize abortion when they vote. But if Roe is gone and abortion is at the top of our headlines for a while, you may see politicians and groups emerge to say, you know, we actually want our abortion policies to reflect our beliefs and values, which is not necessarily something that’s happening in lots of the country, right. I think certainly in red states, but sometimes in purple states…
HEFFNER: And those, the final thing, just in the seconds we have left those base voters, or if you want to call them zealots, if they truly are zealots and unwilling to find some, forge some compromise, they do realize that, you know, from Idaho, they can’t really, they can’t vote in New York. And just as an example, right, and therefore, most policies as they’re deliberated are not going to be at the whim of a voter in another state. So, I mean, there are those boundaries that we live by to understand that, you know, you can’t in Texas control taxation policy in, in Florida.
HEFFNER: And, and so it just seems to be because of the, the, the morality or the life and death consequences of this issue, that we can’t seem to think of it through that lens.
ZIEGLER: Right. I mean, I think the tricky thing here is that everyone seems to think that the Supreme Court will do what they want and solve their problems for them. So everyone is sort of looking to the Supreme Court to create a solution that would not exist democratically. And so maybe if the Supreme Court reverses Roe, that will change. I don’t think it will. And so there’s a, and again, this, part of this dynamic that we want the courts to protect our rights, but we also don’t want the court to take issues away from us democratically. And we’re in that dynamic now where really conservatives too want the court to take this away from the people and impose, you know, an anti-abortion policy on everyone. And I think we have to kind of break that cycle to probably have a more productive conversation.
HEFFNER: Professor Ziegler. Thank you so much for your time today.
ZIEGLER: My pleasure. Thanks for having me.
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