Whither Abortion Rights? (ep. 28)

January 10, 2019
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The Supreme Court decided Roe v. Wade in 1973, establishing access to abortion care as a fundamental right. But state legislatures have been chipping away at that right ever since, passing thousands of restrictions on abortion access and targeting abortion providers with burdensome rules. Several states now have only one abortion clinic left. Millions of women have no meaningful access to abortion care. Louise Melling, deputy legal director of the ACLU, discusses what to watch for at this pivotal time for reproductive rights.

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LEE ROWLAND
[00:04] I'm Lee Rowland, and from the ACLU this is At Liberty: the podcast where we discuss today's most important civil rights and civil liberties topics. Today’s show: Abortion rights in America.

The United States Supreme Court decided Roe vs. Wade in 1973 and, in theory, established access to abortion care as a fundamental right. But in practice, state legislatures have been chipping away at that right ever since, passing thousands of restrictions on abortion access and targeting abortion providers with burdensome rules. Our current landscape reflects this backslide. Several states now have only one abortion clinic left standing. Millions of women have no meaningful access to abortion care. And looming over all of this is a Supreme Court that many worry would outright overturn Roe if given the chance. Here with us to discuss the state of abortion rights in America is Louise Melling. Louise is the Deputy Legal Director of the ACLU and for many years has overseen the organization's reproductive rights work. Hi, Louise.

LOUISE MELLING
Hi, Lee. How are you?

LEE
I'm great. Thank you for coming in to help us understand what's going on now and maybe read some tea leaves for the future.

LOUISE
Sure.

LEE
I want to start with a question about a recent development in the States. At the end of 2018, Ohio Governor John Kasich signed a bill banning the most common second trimester abortion procedure, called D&E, which stands for dilation and evacuation. Can you tell us about that law and what it means for women in Ohio?

LOUISE
So, Ohio is, is one of the many states that's interested in passing restrictions on abortion, right. It does not stand alone in any way in that respect. And Ohio is not unique in any way, also, in terms of having banned the most common method used in second trimester abortions. It is the method used for any outpatient procedure and it is unquestionably a safe procedure.

LEE
[02:05] And outpatient just means you're…

LOUISE
...you're not in a hospital.

LEE
OK.

LOUISE
So, and that's where most people go because it's safe to be outside of a hospital and it's much less expensive to be outside a hospital. And also many hospitals don't provide abortions.

LEE
Right.

LOUISE
That was one of two bills that went to the governor. The governor was presented with that restriction as well as basically a ban on abortion, which he vetoed. The ban on the second trimester procedure will be challenged, as similar bans have been challenged around the country when states pass those. It is a sign of what has been happening, a sign of what's to come. And then the question is how will the courts, which are changing, address this restriction on abortion.

LEE
Thank you for outlining our talk today.

LOUISE
Cool.

LEE
That’s, like, exactly where we're going to go. All right. So on abortion, as with all things, Ohio is a bellwether, right? It's reflective. So what what does the landscape look like nationally? How does this Ohio law fit into what's happening across the states?

LOUISE
Well if you don't mind I'm gonna go from Ohio to Kentucky….

LEE
Go for it.

LOUISE
...because for me, Kentucky represents a host of of the issues that we're going to see. So Kentucky has two different kinds of abortion restrictions in play right now. These are restrictions that were passed in prior sessions and which are subject to challenge. Actually there are three. One is a ban on D&E exactly as you've said. One is a restriction that would have shut the one clinic left in Kentucky — that currently is enjoined. And one is a provision that requires that women see and have described to them an ultrasound before they can get an abortion. And they're required to see and hear about it even if they're covering their eyes and even if they're trying to cover their ears, even when the doctor thinks it's contrary to what's best for their health.

The reason why I'm pointing to those three is because I think those showcase the different kinds of restrictions. One is shutting down abortion entirely by shutting down the clinic. It's important that we pay attention to that because the way that we can lose access isn't just about whether Roe is reversed. Please don't watch for that headline — please watch for the headlines that are really about it being gutted, because our adversaries would like us not to see the gutting. They'd like us to kind of sleep through that and think that we're safe unless we see that headline.

LEE
[04:23] As long as we have have Roe there in name…

LOUISE
Correct.

LEE
...we can point to it and claim we can have an abortion.

LOUISE
Right. Correct.

LEE
So can I ask you: You mentioned there was a law that would have closed Kentucky's last abortion clinic, but it's enjoined. Can you tell folks what that means?

LOUISE
So Kentucky has a restriction that would've shut the clinic because it would have required the doctor to have admitting privileges at a local hospital. Now I think many people hear that and think, oh that sounds reasonable. But even the United States Supreme Court in 2016 said that that's a provision that isn't in any way necessary for health — doesn't do anything to advance health. And in fact all it serves to do is to restrict access.

LEE
It it hard for abortion doctors to get admitting privileges? Why is that such an obstacle?

LOUISE
It's hard for a number of reasons. One is that there are plenty of hospitals that don't want to associate with anybody who provides an abortion because abortion is so ferociously stigmatized in this culture. Another reason is because many hospitals have a requirement that you can't get admitting privileges unless you admit a certain number of patients regularly. So if you're performing a safe procedure, then you're not going to be able to qualify for having admitting privileges.

LEE
So kind of a perfect Catch 22 for the average abortion provider.

LOUISE
Exactly. Exactly. So that was a provision and we brought a lawsuit to say, that's unconstitutional. That's going to shut the clinic. That's going to unduly burden access to abortion. That's going to prevent many women from being able to get an abortion at all. It's unconstitutional.

LEE
And who does the ACLU represent in these cases? The clinics? The women of Kentucky? You know, who are your clients?

LOUISE
[06:03] We usually represent the clinics. Once upon a time when I first started doing this work, I actually represented women. That was in the early 90s. That was a different time it wasn't an easy time in terms of access to abortion — it wasn't an easy time in terms of the culture around abortion, in terms of states being willing to restrict. But it wasn't what it is now, in that we really did have women — under a pseudonym. Now the clients are almost uniformly clinics and sometimes the doctors who are performing the abortions. And they bring the cases on their own behalf because they will get punished if the laws are in effect and if they were to violate them. They're at risk. And oftentimes there’re criminal penalties attached to not complying with these laws, including, you know, ultrasound requirements. So they're bringing it on behalf of themselves and they also are allowed to argue on behalf, present the case on behalf of their patients.

LEE
And is that shift in who your clients have been at all reflective of this kind of gutting approach you've described, which is that now the majority of regulations are aimed at and targeting the abortion providers and clinics as entities?

LOUISE
Well I think it's about the restrictions. It's also about the culture. I mean, I think about I think it's the Knocked Up movie where the — I forget the name of the character, the main character probably…

LEE
OK.

Louise
...talks about somebody who's pregnant, says well maybe she wants to get a “ssshmortion.” He can't even say the word “abortion.”

LEE
Right.

LOUISE
And I've always looked at that as emblematic of the state of affairs where the word is unspeakable. I've for maybe a decade referred to it as the “scarlet letter A.” I'm not unique in that in any way.

LEE
And so you've said, right, the kind of aggressive approach now is a gutting approach, right: the kind of scraping out all the support from behind the right of abortion. Right? How do we square that with abortion being a fundamental right? Is it really?

LOUISE
[07:54] Well first, do you mind if I just go back to Kentucky for just one minute?

LEE
Yeah! Sure, sure, sure.

LOUISE
We don't have to have Roe overruled to in fact shut down abortion in a state. With the restriction on the, the common procedure for second trimester abortion, that's another way that our adversaries are going after the right, which is to make the circle tighter and tighter and tighter and tighter. Or maybe the more appropriate way is to say smaller and smaller and smaller, the window in which you can sort of move.

The ultrasound requirement I view as the principal way to try to stigmatize women who want to have abortions. This is all about making you feel bad. This is all about treating you like you're too stupid to know what's happening and that you should be ashamed of what you're doing. So that is a sort of full-throttle attack in multiple ways on the right, both as a matter of access and as a matter of culture.

LEE
And that culture comes in part from the Supreme Court, right? Correct me if I'm wrong — but it's my understanding that some of that idea, in the courts, that it's OK to force women to have more information, comes from what I view as really paternalistic opinions by Justice Kennedy that basically said, “Hey, you know, if women don't have more information they're going to regret that,” which is inherently infantilizing to me. Do you do you see that as the source of some of these approaches?

LOUISE
I don't necessarily see it as the source, as in, we have a culture that for a long time has treated women as if were stupid, and has treated us as if the proper role for us is to either not have sex or to agree that we should always have children.

LEE
Right.

LOUISE
And so that is just a perpetuation in my view of very long-standing paternalistic attitudes toward women.

LEE
You've just described a raft of laws that really seem to undermine the, the actual practical ability to get an abortion. And yet, in Roe the Supreme Court — at least in theory — called it a fundamental right. Does abortion access in America right now look like what a fundamental right should look like?

LOUISE
It certainly doesn't look what I think a fundamental right should look like, in many respects. And the erosion isn't only recent. The erosion occurred very, very soon after Roe was decided, most notably with the United States Supreme Court saying that it was permissible for the federal government to ban abortion coverage in the Medicaid program. So, in that sense, the court, very early on, made abortion inaccessible for poor women and stigmatized abortion right off the bat by saying our government dollars don't have to support this even though it's a fundamental right and even though our dollars are supporting you if you make the decision to carry to term.

The right has been radically eroded. And I don't think that when we think of a right that sort of looks like Swiss cheese with a bunch of holes through that that's our vision for what a right should be. That's not what we imagined for any kind of equality principle, that you have — that equality should be so viciously eroded. It is still, however, a right in that today, technically, states can't ban abortion. And our adversaries, for example, as they pass these bans, as they push in Ohio, they say we want this legislation to be — their quote is — “the arrow in the heart of Roe versus Wade.” So they know they could go further. And so we still have something but it's a shell of what we what we deserve, what we should have, and what would be essential for us to really be achieving equality and fairness.

LEE
[11:15] You mentioned opponents in the abortion fight. Can you just tell us a little frankly: What are these battle lines? Are they all about religion? And you know, who is funding and staffing the fight to reduce abortion access?

LOUISE
I think there are people, of course, who come at it from a faith tradition. There are people who come at it from a perspective, I think, of really wanting — even if they're not thinking it as consciously as I'm going to say it — of really wanting to restrict women's independence. At the end of the day, restrictions — what our laws say about abortion — says a lot about how we think about women: in terms of who we can be, in terms of whether the only proper role for a woman is to have a child if she becomes pregnant; whether the only proper time we can exercise or engage in any kind of sexuality is if we want to have a child; whether we are treated as selfish because we want to finish school or because we want to take care of a parent or because we want to take care of other children or we, we just want to have some control over our lives in some really fundamental way.

LEE
It's my understanding that polling has shown pretty robust and increasing support for abortion rights among the public, at least the last few decades. Is that right in your understanding?

LOUISE
The polling has consistently shown a majority support for abortion and I think there may be an increased awareness right now about what the threat is which may then tip the numbers.

LEE
Got you. I guess what I'm trying to get at is: What is the freaking disconnect here? Is it as simple as the fact that we're, women are underrepresented in public policymaking bodies? How has this right been so eroded at the time when people in public support it and there's no obvious financial incentive to shut it down?

LOUISE
[12:59] What I deeply believe is that abortion is hard to get and impossible for some women to get, but it remains legal. And it is still the case that today in America there is approximately a million abortions each year. I think that the restrictions that we're talking about aren't really known by a lot of people. And I think what people understand is: the right still exists. They might still know somebody who has an abortion. They know that there's still a debate about whether it's illegal. And so the activism incentive, or for awareness, isn't necessarily with those who support the right because they think the right is there. Whereas the people who I'll just say “lost” in a sense in 1973, for those people the incentive is to create the change. When I look at other movements, I see a similar trend. You think about the move for racial justice, right, I think people think, oh we have laws barring racial discrimination. And so there isn't the same level of activism always to protect that as there might be from challengers who, who are talking about discrimination against, for example, white people in going to universities.

LEE
Right.

LOUISE
I think that's why, in part, there have been opponents of abortion who don't want a reversal of Roe, really, because they understand that that will change the politics around it dramatically.

LEE
Right.

LOUISE
If Roe were reversed, I think we could expect to see a dramatic change in activism in support of abortion rights and different people voting for, on that basis more often.

LEE
As you're speaking one of the things I couldn't help wonder about in all of this is socioeconomic status too. I know women who have had abortion. I do not personally know anyone who has been prevented from obtaining an abortion because they couldn't take a day off work or they couldn't afford to fly to a clinic. I'm just wondering who are the hardest hurt by these laws? And are we talking enough about the fact that abortion is legal for rich women in this country?

LOUISE
[15:03] I've certainly, when I've gone around and spoken to people about abortion I've met some…. I remember distinctly a younger woman in Arizona who told me the reason that she supported the right to an abortion was because of just the unfairness of it — that otherwise it will always be that wealthy women can get abortions, or even upper middle class women can get abortions. But the question is do we have a shot? Do we have a legal regime that's going to try to ensure and protect access? Now, having said that, yes, today it's legal but today it is not within reach for many women. That is true for women who don't have means, as in Medicaid coverage — we're watching the expansion of Medicaid in really sort of gorgeous ways for purposes of the health of people in many states, but in those expansions, abortion continues to be excluded in most every state. It's excluded from the federal program states can choose to cover.

Women in rural areas, for example, have to travel great distances to secure abortions. The state, many states have requirements that you have to make two trips: one to get your counseling and then you have to go home and think about it because of course you never could have made a decision on your own that would be treated as real. So you're sent home, you have to make two trips. But not everybody can just take another day off from work, given the nature of their jobs or ensuring child care services for example, so that's another way in which women are obstructed from getting abortion services. So for poor women, rural women, umm, very very very challenging and surely to just get more challenging.

LEE
So looming over this conversation and explicitly part of it has been Roe and the Supreme Court. Accepting all the caveats you've given about the fact that that should not be our sole focus, but knowing that we still pay attention to this and that an overturning of Roe would galvanize I think this debate in a different way: Is it really vulnerable? Is Roe itself really in danger at the court?

LOUISE
[17:04] I came to the ACLU shortly after the Supreme Court issued a decision in 1992 that reaffirmed Roe vs. Wade. I mean it had some…. it changed the standard and made it easier for states to pass restrictions. But this is the first time in my career here where I've said I'm actually worried about whether the Supreme Court would ever issue a decision that reversed Roe. I think it is definitely within the zone of possibility.

That said, I think that Justice Roberts is interested, you could say, interested in institutional integrity, or Justice Roberts is maybe a more political person than some. I think that the court probably understands both the threat to its legitimacy as well as the political consequences of reversing Roe. I think it is much, much more likely that what we're going to see is a gutting. And if there's one message I want to send today — I want to send every day — it is watch for the gutting of of the right. Do not look only for the headline. Because if Roe were reversed tomorrow the question would go back to the states as to whether or not the states would ban abortion or whether the states would leave it legal whether some states actually try would do everything they can to enhance access.

That is the universe that we really are fighting for right now, even while Roe is still there. We're fighting to ensure that Kentucky could still have a clinic, for example. And so the question of whether there will still be a clinic standing in your state, the question of whether you'll still be able to get an abortion after the first trimester, the question of whether all the insurance in your state must ban abortion from coverage — those questions are coming to the court. Those questions are there now. And they will really make a material difference. Everyday we move to a world that looks a little bit more like what it would look like if Roe were reversed in terms of the dramatic disparities in the states in terms of access and the difficulties of securing access.

LEE
[19:11] So what does gutting look like? I know John Roberts, for example, is fond of saying he just calls balls and strikes, you know. Is there a way he can keep claiming to do that while overturning Roe in all but name?

LOUISE
So I think you're absolutely right that, you know, this, the court could radically gut the right and still be in the sort of “balls and strikes” zone. And all we have to do is look at the decision from 2016 in the United States Supreme Court. So the decision in 2016… If people remember, there was a lot of attention paid to restrictions on abortion and new law passed in Texas. That law, some of it went into effect and many — like I think approximately half the clinics — may have shuttered as a result of that. When the case goes up to the Supreme Court about the restrictions, the record said that maybe three-quarters of the clinics might close if the laws were upheld. So that's going like from 40 to 10 or so — a dramatic, dramatic shift in terms of access. Just look at your map at how big Texas is and what that means.

Chief Justice Roberts, Justice Alito and Justice Thomas voted to uphold that restriction. We now have two new members Gorsuch and Kavanaugh. They could all vote to uphold that restriction, or a similar restriction, without having to say that we've changed the standard without having to say we've reversed the core decision of Roe without having to say that precedent is undone.

LEE
They’re just applying the facts differently.

LOUISE
Correct.

LEE
OK.

LOUISE
Correct. And so I think the challenge for people is to put up your antenna and look for those moves that won't have the same big headline but actually speak to the undermining.

LEE
Okay. I'm glad you mentioned the court's new members because I want to ask you about them. When Brett Kavanaugh was on the lower court before he got onto the Supremes, he stood in the way of an immigrant minor who was seeking an abortion. You were involved in that case right? Can you tell us a little bit about that?

LEE
[21:07] Sure, so that was the case that was known in the press as the “Jane Doe” case. Jane Doe was an immigrant who had come into the country, she'd come without parents or other families. So she was unaccompanied. She was therefore in the care and custody of the federal government. She was pregnant. She was in Texas. She satisfied all the state requirements to be able to get an abortion. There were folks who were agreeing to pay for the abortion. But the federal government stood in her way. The federal government wouldn't literally sort of open the door to let her go out to secure the abortion. The federal government said if we do that then we're facilitating the abortion and we shouldn't have to do that.

And when the case got to the court of appeals where then Judge Kavanaugh was sitting, he issued a decision which said, well we could, we can just wait a little bit more we can wait eleven more days, give the government time to find out, to look for a sponsor for Jane Doe. If the government found a sponsor that would mean that Jane Doe would have left the government's custody and would have been with a person or a family

LEE
So almost a fictional handoff.

LOUISE
Yes. Well, and the reason why it was so fictional was because first of all, she'd already been delayed several weeks. The government theoretically was already looking for a sponsor and hadn't found one.

LEE
And pregnancy I understand is a bit time sensitive.

LOUISE
Just, just a tad. Just a tad. And there's nothing in in the decision upholding the right that says, Oh go ahead and just keep delaying while you look for some other option. This should be your right without government obstacle, without somebody just closing the door on you for some number of weeks. So that opinion was quickly reversed by that circuit court sitting what they called “en banc,” which means everybody as opposed to only the three judges who normally hear an opinion. That opinion, of course, gives us pause about where Justice Kavanaugh might be as he considers cases to come before the court. And you can't help but have some concern given that President Trump while he was, you know, campaigning and then in office, said that he would appoint justices who would reverse Roe. The fact that he said that doesn't mean it will be true but it is reason to sort of take pause and wonder what's going to happen.

LEE
[23:23] But there might be at least some evidence he's not a complete monolith opposed to you know anything abortion related, because once he got onto the Supremes he voted with the majority to allow Planned Parenthood to continue receiving Medicaid funds. Right?

LOUISE
Well, he did not vote to hear a case. There hasn't been a decision issued by this newly constituted court on that question. There was a question presented to the court saying, “Will you hear these cases?” about whether the state could push Planned Parenthood out of the Medicaid program because Planned Parenthood provides abortion outside of the Medicaid program. The court did not agree to hear those cases. And what was distinctive about the court's decision not to take those cases was a dissent filed by three justices, if I recall correctly, saying, we think you're doing this just because you're afraid of the politics. It was authored by Justice Thomas and joined by Alito and Gorsuch.

LEE
Fascinating. So wherever Gorsuch may end up we're assuming he's even less friendly to abortion rights perhaps than his new colleague Kavanaugh.

LOUISE
I wouldn't read too much about Justice Kavanaugh from that, both because this isn't straight up about abortion; second, he just got on the bench; third, I think Chief Justice Roberts cares about the legitimacy of the court, knows that it's contentious right now and may well want to — if he can — avoid super controversial issues right now. So the question about whether this says something about a strategy about the legitimacy of the court and staying kind of steady and quiet or whether this says something about the merits I think is an open question. And time, time will certainly tell us.

LEE
What I find pretty astounding about that story is Thomas's view. Right after Kavanaugh gets on the bench with that bruising fight to have Thomas say immediately, “Hey dude this is why you're on the court. Don't duck.” — that is astounding in and of itself, isn't it?

LOUISE
Perhaps, although I don't, I don't think of Justice Thomas in his writings as holding back.

LEE
That's fair. Yeah that's generally, yes. He….Whatever he doesn't say at oral argument, he doesn't hold back with the pen. OK.

[25:48] If Roe were overturned, whether in name or in practice — right, if the states had much more leeway to ban it — what would our nation look like right now? And one of the reasons I'm asking is because I just started a new gig working on policy with the New York Civil Liberties Union. Almost every person I've met who's not kind of enmeshed in Albany politics has been shocked and baffled to find out that New York still has criminal abortion. That is, that if Roe were overturned tomorrow, abortion would be criminal at least in part in New York state. So I'm just wondering, do you have a sense — if this Supreme Court gave the states more free rein, whether by explicitly overturning Roe or in another way, at this moment in time, how many states would actually offer the women who live there access to abortion?

LOUISE
The estimates I've seen would be close to half of the states may ban abortions if Roe were reversed. I think there is reason to take that quite seriously even though like maybe things would be different when the reality hits. But all we have to do is look at what the states have been doing for the last decade or decades to really, I think, feel quite confident that a substantial number would move to ban abortions.

I mean, we go back to the beginning of our conversation, for example, about Kentucky — that the laws I mentioned are not in effect today because the courts, when faced with a lawsuit, have stopped those laws from taking effect. So the courts have been incredibly important to preserving what access there is today in many respects.

But the ultimate solution can't be the courts. The ultimate solution is a political solution. The ultimate solution is what's happening in our state legislatures. For example, what's happening in the elections for governors. Who is your attorney general? So when we go to election parties if you're an ACLU voter, if you're a person who shares the values of the ACLU, the question shouldn't only be, what happened in the U.S. House and Senate? Who is our president?

The question should be: Who won in Alabama? Who's the new governor of Ohio? Who's the governor of Iowa? Who's appointing the members of the Supreme Court of Wisconsin? That's what it's going to take. We have to be focusing very local and understanding that so many of our rights happen in the states and that the way we protect those rights is to show up in those spaces to speak out about what we're going to demand from our democracy in terms of our equality and the promise of fairness.

LEE
Louise, thank you so much for coming in today.

LOUISE
Thanks, Lee.

LEE
[28:35] I'm Lee Rowland for At Liberty, and that's our show for today. Indeed, it's also my last show as your host, at least for now. I'll be passing off my hosting duties as I crack into a new role as Interim Policy Director of the New York Civil Liberties Union. If you'd like to follow my exploits as I help push a civil liberties agenda in the state of New York you can find me on Twitter at @berkitron. Keep listening, I promise that you'll be in good hands.

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