0:00

Today is Saturday, March sixteenth. Abortion.

0:02

Is front and center this election year and for

0:05

good reason. We've seen a lot changing and being

0:07

challenge on both the state and federal levels since

0:09

the Us Supreme Court overturned Roby Way to Back

0:11

in the summer of Twenty Twenty Two. Recently.

0:14

The Alabama Supreme court ruled embryos our

0:16

children threatening I V F Services in

0:18

the state. Not. Prompted state lawmakers

0:20

to protect those services, but still

0:23

left many questions unanswered. Separately.

0:25

Later this month, the Us Supreme Court is

0:27

set to hear arguments about the so called

0:30

Abortion Pill and after that, the High court

0:32

will consider another case related to abortions in

0:34

life or death situations. Today we're talking about

0:36

the legal arguments specific to these issues and

0:39

the potential implications nationwide are: guess today marries

0:41

a killer is illegal Historian and professor of

0:43

Law. She's known as a leading authority on

0:45

the legal history of the abortion debate and

0:48

United States. She's a professor at the U

0:50

C. Davis School of Law and the author

0:52

of several books. Her most recent book is.

0:54

Called Row the history of a National

0:57

Obsession and she's currently writing her new book

0:59

about the feudal personhood debate. She's.

1:01

Here to explain some of these issues top

1:03

of mind right now and offer some historical

1:05

perspective to. Welcome.

1:09

Welcome to the News Really special Edition Saturday

1:11

when we sit down with a different expert

1:13

or celebrity every Saturday to talk about something

1:15

in the news. Don't forget to tune in

1:17

every Monday through Friday for our regular episodes.

1:20

are we provide all the day's news in

1:22

ten minutes! America, Mandy, It's now time for

1:24

today's Special Edition Saturday! Marry

1:28

Sickler. Thank you so much for joining us

1:30

here on the news where the thanks for

1:33

having me So obviously. In June of Twenty

1:35

Twenty two, the Us Supreme Court overturned Roe

1:37

V Wade with the Dobbs decision a leaving

1:39

it up to states to decide abortion access.

1:41

So. First as big picture. How.

1:43

Would you describe the impact of that decision

1:46

And you know the overall legal status of

1:48

abortion in the Us right now? Very.

1:50

Chaotic I guess would be. The.

1:52

Description: The Supreme Court suggested in

1:54

In The Dogs ruling that there

1:56

has been a lot of chaos

1:58

and conflict around. The orson in a row

2:01

was part of the problem and I think the

2:03

in France was that maybe things would simmer down.

2:05

Once. Role is gone and we see the

2:08

opposite. The seen a lot of conflicts about.

2:10

State laws. We seen conflicts between states.

2:12

We see the sights in the Federal.

2:14

Courts so if anything kind of multiplying

2:16

shields in battle and in. We've seen

2:18

other things like miscarriage treatment and I

2:20

the have swept and as well. Yeah

2:22

and let's talk about each of those

2:24

things a little bit more. Obviously one

2:26

of the issues now is this seat

2:28

or personhood ahmed central to a lot

2:30

of the debates. We saw Alabama supreme

2:32

court define an embryo as a child

2:34

which then led to some of the

2:36

issues that you were mentioning that confusing

2:38

with I've yes of course state lawmakers

2:40

then went back to try to protect

2:42

I Bf. But let's help people. Understand

2:44

this particular issue a little bit

2:46

more. Can you explain what fetal

2:48

personhood is from a legal perspective?

2:51

The. Anti Abortion movement? really? Since the

2:53

Nineteen Sixties suspend fighting for this,

2:55

I do personhood. And the basic

2:57

premise is that the word person's

2:59

injurious laws, but particularly in the

3:01

Us constitution. Applies. From

3:03

the moment of fertilization. So

3:05

that would mean that for example, it's.

3:08

To due Process and Equal Protection of

3:10

law apply to fetus or embryo as.

3:12

Much as to anyone else, what was

3:14

your reaction to that initial Alabama ruling?

3:17

I mean I wasn't surprised that we

3:19

would see it somewhere on. I think

3:21

this felt very much kind of sick

3:23

and opening salvo. I think that's what

3:25

as she worse and activists understood it

3:27

to be as well. And I think

3:29

that's still true. even after Alabama legislators

3:31

have passed a law to try to

3:33

address the issue. I don't think we've

3:35

seen the last of the issue. And

3:37

Alabama really a new house so you

3:39

don't think that kind of new or

3:41

law trying to protect idea specifically clarifies

3:43

things enough or explain more what what

3:46

you think it doesn't. Does not do. The.

3:48

Recent It's leave some unanswered questions is

3:50

because it doesn't address this question. Whether

3:52

embryos are in fact person's so you

3:54

could imagine and she where she saying

3:56

well you know the states. As you protect

3:59

Soviet the to see. That he violates

4:01

the see Constitution because it's violating

4:03

the rights of these persons the

4:05

legislature sing. Their persons to seats

4:07

from quarter seeing their persons so

4:09

denying this wrongful death remedy. Or.

4:12

Even these criminal protections against I,

4:14

the of providers. Is unconstitutional

4:16

under state law. and it's not it's I

4:18

think far from a sure thing. That the

4:21

secret wouldn't buy that argument given what it

4:23

said in the original ruling. Where else does

4:25

this come up outside of I, the Us

4:27

any most commonly with abortion nuts in the

4:30

impetus for a fetal person said movement in.

4:32

The first place, of course, what

4:34

constitutes an abortion is. Contested. So

4:37

that means that there's implications for

4:39

common contraceptives like I used the

4:41

birth control pills and the like,

4:43

because some people opposed to abortion

4:45

define those drugs as abortifacients rather

4:48

than contraceptive. So there there are

4:50

lots of unanswered questions as well,

4:52

because. Of course of fetuses or embryos or

4:54

persons. You know, what does that mean for

4:56

other areas of the law? Rate: Do: What

4:58

does it mean for tax deductions? What does

5:00

it mean for census counts? What does it

5:03

mean for the drawing of district lines for

5:05

the purposes of elections? What does it mean

5:07

for in has to see you on inheritance

5:09

Like there's a lot of things We wouldn't

5:11

know if a court went all the way

5:13

to recognizing fetuses or embryos has person's for

5:15

all purposes. Do. You expect all of this

5:17

will eventually come up? I do. I mean, I

5:19

think. Them. Again, Nancy worsened movements

5:22

fight Really from the beginning has been

5:24

for fetal personnel and I think that

5:26

the Alabama Experience will. Discourage

5:28

personhood proponents at all. I

5:30

think they'll see state courts

5:32

as potential places they can

5:34

win. The Us Supreme Court will

5:37

soon begin hearing arguments over access to the

5:39

Pill called Nyssa Press Down and As D

5:41

a approved drug that is commonly used and

5:43

medically induced abortions it can also be. As

5:46

for miscarriages, can you just give us an

5:48

overview of the legal arguments on both sides

5:50

of this issue? And why is this coming

5:52

up now? This. Case was brought by a

5:55

group. Called the Alliance for Hippocratic Medicine which

5:57

is a group of anti abortion doctors.

5:59

The lawyer. in the case are a group called the

6:01

Alliance Defending Freedom. And

6:03

these groups are arguing that the pill

6:05

of mifepristone, which was approved in 2000,

6:08

was never properly approved. The FDA didn't

6:10

have the authority to do so in

6:12

2000 and that the FDA again didn't

6:14

have the authority to lift restrictions on access to

6:17

mifepristone in 2016 and again in 2021. The case

6:19

has been working

6:22

its way through the lower courts and the

6:24

U.S. Supreme Court has let the status quo

6:27

regarding mifepristone stay in place as the litigation

6:29

continues, which would suggest that maybe the

6:31

justices have some problems with the

6:33

conservative plaintiffs' case. It's not

6:36

clear the plaintiffs have standing to be in

6:38

court, really, that they have enough direct impact

6:40

on them to even be the ones raising

6:42

this issue. It's not clear they

6:44

raised any of these claims in a timely manner.

6:46

I mean, we're talking about things in some instances

6:48

that happened nearly, you know, 25 years ago.

6:51

Conversely, there are lots of

6:53

explosive possibilities if the court does side

6:56

with the plaintiffs, right? They could require

6:58

people accessing these pills in blue as

7:00

well as red states to make multiple

7:02

in-person visits to physicians and make the

7:04

pills inaccessible up to

7:06

the 10th week of pregnancy, which is

7:09

the current standard of care. They could

7:11

set a precedent, of course, that people

7:13

who don't like a drug could come

7:15

around years later when they have very

7:17

little connection to what's happening and argue

7:19

that the FDA misread the evidence. That,

7:22

of course, could have implications for other drugs,

7:24

that people have questions about

7:26

or that are politicized, like vaccines. And

7:28

there's a final possibility involving this

7:30

law called the Comstock Act, which

7:33

is a 19th century obscenity law.

7:35

And the plaintiffs in this case

7:37

argue the FDA didn't have the

7:39

authority to allow telehealth abortion because

7:41

the Comstock Act actually makes it a crime to

7:43

mail anything having to do with abortion. So, of

7:45

course, if the Supreme Court goes down that road,

7:47

the Comstock Act would be sort of a

7:49

Pandora's box. In other words, it

7:51

would have implications beyond myth or wisdom. And

7:55

obviously, potentially

7:57

beyond the states that have restricted access

7:59

to abortion. Absolutely. Any win

8:01

for the plaintiffs in this case would

8:04

have implications for people in

8:06

states that have actually voted to protect

8:08

abortion. So

8:12

ahead, our guest explains the history of

8:14

how abortion became so entrenched in politics.

8:16

Mary Ziegler will also explain what's at

8:18

stake in the other upcoming Supreme Court

8:20

case related to abortion and more. But

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out. Now back to our

10:40

conversation. And

10:43

then also during this term, the Supreme

10:46

Court will consider whether the federal government

10:48

can require physicians to provide emergency abortions

10:50

if the mother's life is at risk.

10:53

Can you explain the two sides of that case and

10:55

how we got here? Sure. So

10:57

this case really began when the Biden administration

10:59

began interpreting this federal law called the Emergency

11:01

Medical Treatment and Labor Act. And at its

11:04

most basic, this law was passed in the

11:06

80s because hospitals were

11:08

turning away patients with emergencies because

11:10

they didn't have the ability to

11:13

pay. And the Biden administration put

11:15

out guidance saying, if you

11:17

are a hospital that accepts any form

11:19

of Medicare funding, we interpret this law

11:21

to mean that if a patient is

11:23

having a medical emergency and if

11:26

that emergency, the standard

11:28

would be to give that patient abortion

11:31

to address the emergency and the state

11:33

fails to do that. It's violated the

11:35

statute. The idea too, is

11:37

that that would override state laws to the contrary.

11:40

So in other words, if the state law's

11:42

exception in a state with a

11:44

ban didn't permit that abortion, the Biden

11:46

administration was saying, well, the federal law

11:48

trumps. And if you ignore

11:50

this guidance, there'll be powerful federal

11:52

consequences under this statute. So

11:55

the Biden administration then went after Idaho for

11:57

what it said was the violation of the

11:59

law. Then Texas fired back in

12:01

its own lawsuit saying, we have no obligation

12:03

to do anything under this statute. And now

12:06

that the case has reached the

12:08

Supreme Court, we're seeing conservatives, states,

12:10

as well as friends of the

12:12

court briefs saying essentially,

12:15

not only is there no obligation to

12:17

intervene to help patients who have the

12:19

medical emergency, there's limits on the state's

12:22

ability to do that because the

12:24

statute refers to an unworn child as

12:26

a patient. So essentially they're saying that

12:28

there are limits on what you

12:30

can do if the unworn child as a patient

12:32

has rights too. So that could

12:35

be pretty explosive if you stop to think

12:37

about it, right? If the Supreme Court agrees with Idaho,

12:39

which seems likely because again, in the

12:41

court, so far the court has allowed

12:43

Idaho's law to stay in effect, then

12:46

that would mean both that people

12:48

with life threatening medical emergencies would not

12:50

be allowed to access abortion and potentially

12:53

too that the court would say there

12:55

are scenarios where in other states people

12:57

are disallowed from having abortions in medical

13:00

emergencies because of these rights of the unworn

13:02

patient. So there's a lot on the line

13:04

in this case as well. Historically speaking,

13:06

have we seen so many things related

13:09

to abortion on the line at one

13:11

time before? No, this is

13:13

really unusual. I mean, I remember when

13:15

he think back to the kind of

13:17

pre-dobs years and it was

13:19

very uncommon for the court

13:21

to even have an abortion case every year or two.

13:23

So often it would be six,

13:25

seven years in between major

13:28

abortion cases. So to have

13:30

two in a term is a pretty big deal.

13:33

And then of course, it's especially

13:35

striking given that the Supreme Court had

13:37

sort of promised implicitly that the federal courts

13:39

were out of the business, right? That this

13:41

was going to be returning the question to

13:44

the people and their elected representatives when we've

13:46

seen of course the federal courts at least as involved

13:48

or maybe more involved than they ever were. And

13:50

I think you've said that abortion in general

13:53

has not always been so divisive and partisan.

13:55

Is that true? And how did

13:57

we get here? Abortion definitely wasn't always a partisan

13:59

issue. So if you go back to

14:02

before Roe or even the immediate aftermath of

14:04

Roe, you would have prominent politicians and

14:06

lots of voters in both parties who

14:09

either opposed or supported abortion.

14:12

And it wasn't really until the 1980s when

14:14

Ronald Reagan saw abortion as

14:16

a way to peel away

14:19

socially conservative Catholic and Protestant

14:21

voters who would historically have

14:23

been Democrats for reasons of

14:25

economic self-interest that there

14:27

was sort of a partisan alignment that

14:30

emerged. And once there was

14:32

that partisan alignment, it kind

14:34

of created a self-reinforcing cycle of

14:37

polarization. I think it's fair to say

14:39

abortion is divisive in some ways, right?

14:41

But if you look at popular opinion

14:43

on abortion, it's pretty

14:46

stable. Most Americans don't

14:48

want abortion to be illegal throughout

14:50

pregnancy. We've had fairly stable majorities,

14:53

although narrower than in Europe, for abortion

14:55

being legal for a long time. What's

14:57

been unstable or what's been really divisive

14:59

has been there are social movements on

15:02

either side of this issue that are

15:04

very passionate and effective in ways that

15:06

we don't see in other countries. Where

15:09

do you see the abortion debate headed

15:11

next in America? We've seen

15:13

abortion rights succeeding at the polls.

15:16

So far, we've had a number of

15:18

ballot initiatives in both 2022 and 2023 where abortion

15:20

rights have

15:22

prevailed. So I think on the kind of

15:24

popular politics side, when voters are given a

15:26

chance to weigh in directly about what abortion

15:29

law should look like, they tend to

15:31

be very supportive of at

15:33

least decriminalizing it. Then

15:35

there's the tougher question of, well, what

15:38

happens? Is that

15:40

actually what our policy is going to be? Here

15:42

I think a lot will depend

15:44

on how effectively anti-abortion groups can

15:46

use either the federal courts

15:49

or the federal court and the executive

15:51

branch if Donald Trump is reelected to

15:53

kind of go around what voters would

15:55

prefer when left to their own devices

15:57

about this question. Any final thought

15:59

or takeaway? for our listeners? I think

16:01

it's easy to feel that if you live

16:03

in a state that has protections for abortion

16:06

rights or a state that's going to have

16:08

a ballot initiative or a state like Ohio

16:10

or Michigan that recently voted

16:12

for a ballot initiative, that the 2024

16:14

election isn't going to affect you. This

16:18

is probably going to be one of the

16:20

most consequential elections when it comes to these

16:22

issues that we've seen in our lifetimes, right?

16:24

Because there's a lot that a president could

16:26

do, particularly a Republican president, without Congress to

16:28

make abortion inaccessible or even illegal in blue

16:30

states. So I think that's kind of a parting

16:33

thought that if this is an issue that matters

16:35

to you in one way or another, it's very

16:37

much on the ballot. Well,

16:40

thank you so much to Mary Ziegler for sharing her

16:42

legal expertise. We'll, of course, keep you

16:45

updated as these abortion debates play out across the

16:47

country in our regular weekday episodes alongside all the

16:49

other news you need to know for the day.

16:52

We bring you a wide variety of stories every Monday

16:54

through Friday in our signature 10 minute news roundup to

16:56

help keep you in the know. So we'll be back

16:59

on Monday. Until then, have a great weekend.