The Latest Assault on Abortion Rights

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From the ACLU. This is at liberty. I'm Emerson Sykes a staff attorney here at the ACLU and your host. In the last few months, eight states have passed laws severely restricting access to abortion and several other states have similar bills, pending most notably. Alabama recently passed a law that prohibits, nearly all abortions with no exception for rape, or incest, five other states have passed bills prohibiting abortion after a fetal heartbeat can be detected usually at about six weeks of pregnancy so early that many women do not even realize they're pregnant at that point, this wave of abortion restrictions has been building for decades since the supreme court decided Roe v Wade in nineteen Seventy-three. But it seems as if we've reached a turning point. Our guest today is my colleague Brigitta. Mary, Bridget is the deputy director of the us, reproductive freedom project, and she's been a tireless advocate for abortion rights for almost twenty years. She's litigated several major cases including current challenge to Kentucky's abortion ban. We'll discuss the state of abortion rights in America, how we got to this dramatic moment and what it's like to be on the front lines of this. To protect the right to abortion, Bridget. Thanks very much for being here. Welcome to the podcast. Thanks for having me. So can you start by orienting? Those of us who've had trouble keeping track of the quick succession of bills, and ever heightening rhetoric. If someone woke up after a four month nap, how would you explain to them? What's happened in where things stand? Now, I would say that we're at a unique time in our country's history on access to abortion. And we've now seen six dates pass bans on abortion, and I've never seen anything like this in the time that I've been doing this work. It is a direct assault on access to Boertien. It's an attempt to try to overrule Roe versus Wade, which was decided in nineteen seventy three and we're really firing also under is we have our challenges to the state restrictions. And were also battling the Trump administration as well. So both of these fronts state battles, and the federal battles are really keeping us busy. Well, let's start with the status quo. So Roe v. Wade set the line at viability. Which is roughly twenty four to twenty eight weeks after which abortion is prohibited. How did we get from there to where we are now? Yeah, so just a bit of a clarification. So reverses Wade in nineteen seventy three supreme court found that the right to abortion is a fundamental constitutional right under the right to privacy. They said that states may not prohibit abortion prior to ability and after that point states may ban abortion, except to save the woman's life or to save her health. There have been obviously other supreme court cases along the way that have reaffirmed that fundamental principle that states may not ban abortion outright, and most recently in two thousand sixteen the supreme court reaffirmed this in a case called whole health and probably the most grievous violation of this supreme court precedent is the Alabama look and you say a word about the Alabama law. So Alabama bands abortions outright with hardly any exceptions, and that is lightly different than the other bands that we've seen in the other states recently. Mississippi ohio. Missouri, Missouri Missouri's eight weeks and Georgia. That's right until Kentucky. That's right. My case. But it's just a matter of degrees. The other states that have banned abortion, recently. It's really two weeks after a person misses their period before most people know that they were pregnant, especially if you have a regular periods. So an outright ban versus a six week ban is not really materially different. These are extreme bans across the board and the idea of the fetal heartbeat, the six week approximately six week line. Is that a new development where did that line in the sand? Come from it comes from an antiabortion playbook. So when we see these copycat bills over and over again, this is the direct design of an antiabortion movement where they're trying to pass these laws to change the conversation to ban abortion, and it's really a coordinated effort across the country when the bills, pending, in many more states, there are villagers are winding down for the session. So I don't know how many more will see Louisiana's a possibility of when we might see we've recently heard Michigan as a possibility my home state, these abortion. Bands of not gun a noticed, we've seen people flooding into the streets. What do you make of the reaction to these bills? I think it's great that people are paying attention now it's very unfortunate that we got to this place. But a couple of things I want to know first of all abortion is legal off fifty states right now I think there's been a tremendous amount of confusion about that. And that's by design the people who are pushing, these bills want to confuse people. They want to chill access to worship and they want to shame and stigmatize providers of abortion by criminalizing abortion. But today abortion is legal off fifty states, and we're fighting to keep it that way, the tension that these bills have received is important because if we are going to preserve access tuber Shen in this country, it's all hands on deck. And that's the moment that we're in right now, obviously, there's been a chipping away slow tipping way at the right to abortion over the last several decades, actually since Roe versus Wade was decided shortly after in the mid seventies, we saw restrictions being. Passed on access to worship and have ever since. So I would say that the people who are galvanized, by the bands, that everybody should also pay attention to the other restrictions that are pending short of bands because you don't have to ban abortion, in a state to eliminate access to portion and Kentucky is a perfect case study of that. And we can talk about that more will do wanna get to Kentucky next use the it's all hands on deck. And like to hear more about who those hands are obviously, the ACLU has been playing a prominent role in challenging some of these laws but who are the other members of the coalition whether the different players that are trying to push back. So in the states, there are a number of repetitive Justice groups, and these are women of color, led organizations that have been really at the frontline of the battles on the states to push against legislation restricting access to abortion. In addition to doing a whole host of other work on the reproductive Justice front. They're also in the fight is our organizations that fund abortion and fund tr. Aval for Boertien. These abortion funds are critically important in this fight. Obviously, the other national groups Planned Parenthood center Frucht rights, Nair, all its whole host of organizations and the providers themselves. The number of abortion clinics are very active in their states in terms of this organizing efforts, and obviously, without some patients wouldn't be seen. Let's dig in a little bit on Kentucky where you're the lead on several cases. Can you talk about the most recent challenge battling in Kentucky? Yeah. So Kentucky has one abortion provider. And I think a lot of people are surprised to hear that Kentucky is one of six states, that has only one abortion provider, left right after Roe versus Wade was decided in nineteen seventy three. There were seventeen places where you could get an abortion and Kentucky. And today, there is one and that is our clinic EM w women surgical center owned by Dr Marshall, we are honored to represent them in four cases challenging five laws and most recently. This case that we had to file was a challenge to abandon abortion, starting at six weeks in pregnancy. And a ban on abortion, based on the reasons person seeking abortion, including four fetal diagnosis. So Kentucky's, a bit unusual that if there is a restriction pass takes effect immediately upon governor Bevin signature. And so, we had to file our case after the legislation passed anticipating Bevin would sign and the court blocks the laws, both of you hours after they were signed and took effect, but there was a scramble in the meantime, and it was very disruptive to patient care was you said this is not your first battle in Kentucky. And obviously the ban is a very dramatic measure, but can you talk a little bit about some of the other measures that have been passed short of a band that have chipped away at the right to abortion? I know they're all sorts of restrictions on access. People have been very creative in building walls between women and their services. That's right. And. And there are other lawsuits pending in Kentucky in particular in those case, apples of what we've been doing some of them have been brought by my colleagues, it's been a huge team effort. The one case that I'm also Lee council on, though is a case involving a requirement that abortion providers have written transferred greet with a local hospital and MW had that agreement in place for years complying with the law and governor Bevin took office. He made it his mission to close abortion providers. There were three abortion providers when he took office, and he forced the closure of two of them and he's been trying to close our clinic and Louisville ever since. And so governor Bevins' administration got a hold of the transfer that MW hadn't place with a local hospital and said it was signed by the wrong person. So the head of the obese I n department who signed the transfer agreement, but governor Bevin said that it needed to be signed by the CEO of the hospital and if it wasn't fix. In ten days that w would be forced to close their doors. And how explicit has he been about his mission to shut all abortion clinics, very explicit? He wants Kentucky to be the first state to have no abortion provider. This is his mission. He has talked about it openly. He has galvanized a antiabortion forces. He spoke to a group that eventually came to MW's clinic and blockaded their doors. We hadn't seen an old school blockade like this for a long time. But in may of twenty seventeen we saw a number of people go to MW's sit in front of the doors refuse to let patients in or out of the clinic during day where patients were seen they were arrested and actually under the Jeff Sessions department of Justice. There was a freedom of access to clinic entrances case brought against those people who blockaded the doors of w can you toes more about your clients? And also how these restrictions affected the community. Our clients is amazing. I have to say I'm just so amazed by their. Resilience. Dr Marshall has been providing access to Boertien for close to forty years, and he is Jim I n he's also delivered a number of babies throughout his time. And actually when you walk around Louisville with him, he's often stopped on the streets by people saying, thank you so much for delivering my son my daughter. And he's also been providing abortion than community for close to forty years. And what is the impact on community when they really don't have access to clinics, obviously, in Louisville, there's the one but the rest of the state what are people doing? How's it impacting them? So people have to travel hundreds of miles and people come, not just from Kentucky, but from all over the surrounding region because Kentucky is one of the few places where you can get an abortion in the second trimester. So there's all kinds of people travelling from all over and luckily, there is a wonderful community, not just the clinic that is there in Louisville. But there is an abortion fund. We've talked about abortion funds earlier. It's Kentucky health Justice network. That provides funds to pay for the abortion to pay for travel to get to the clinic to pay for overnight. Stays if needed and there's also a group of on tier escorts, because there are protesters' out every day, when patients are seeing EM w and there's a group of people that make sure that people can get into the clinic safely when the reason that we need a fund is because anytime there needs to be travel or it becomes more onerous. Obviously, the poorest folks are going to be the most heavily impacted. That's right. And going back to the restrictions that were passed right after Roe versus Wade was decided in nineteen seventy six the Hyde amendment passed. And this was named after Henry Hyde, who was a politician from Illinois. And this writer has been passed every year sense, and it prohibits Medicaid from covering abortion and Henry Hyde explicitly said that he would want to ban abortion for everybody, but his only vehicle was the Medicaid Bill. So you saw a very direct restriction on access to abortion for. For low income individuals. And we've seen this throughout our history that politicians go after the most marginalized, to take away their constitutional rights and the inability to use public insurance, and now private insurance, and a lot of states, including Kentucky largely it restricts access tuber she as well, repealing the Hyde amendment is a priority for the reproductive freedom project and also for the rights for all campaign as well. That's right. So one of the questions that voters have been asking presidential candidates is do you have a commitment to repeal the Hyde amendment, which is incredibly important when no, the litigation is pending? But what do you think are the prospects for success in these suits? So with respect to the bands, we anticipate winning in the district court, we anticipate winning in the court of appeals lower courts are bound by supreme court precedent, and this is a straight forward case states may not ban abortion in this way. So we are very optimistic that we will be successful in striking down the ban. Ends in the lower courts. And the real question is what happens when we get to the supreme court, President Trump vowed to appoint supreme court justices that would overturn Roe versus Wade. And so there is a hope by the other side, that there are five justices now that would overturn Roe versus Wade, or at least this rate is so much so that there really isn't the right to abortion left anymore was used President Trump has made overturning Roe v. Wade and explicit almost a campaign promise, but at the same time he's been even critical of the Alabama, Pat Robertson also came out saying, even this is going a little too far. How do you untangle this strategy from the other side? Well, I would say that's a bunch of lip service to be honest, and really what they're talking about is the lack of rape exception. So that is really not meaningful in terms of opposition to the Alabama ban. I think the Trump administration, we have seen their attempts to ban abortion, and the Jane Doe case, for example, this was a case that we lead involving an unaccompanied. Mercante minor who sought access to Boertien, and she came to this country on her own fleeing violence in her home country. And she was in a shelter and discovered she was pregnant and sought access to an abortion. And the Trump administration said that she was prohibited from leaving the shelter from accessing abortion. And so, I believe that the Trump administration would do to everybody seeking access to abortion what they did. Jane Doe of they could was you said, over your almost twenty years, working on this issue, things do feel different. Now it seems as if there's been a strategic shift for opponents of abortion. They were chipping away at Roe v. Wade bit by bit as much as they could. And it seems as if and you can correct me if this is wrong, but it seems as if they're now going all in, and the are playing all of their card, so to speak. They may be overplaying their cards, though, just banking on the five supreme court justices if they've changed their strategy. Have you had to change your strategy as well? Yes. And no. We always will have to fight the restrictions and this chipping away. You've talked about that's happened over years. But now we're seeing their true colors and now we can say we know that this has been their goal all along. They may have talked about these restrictions in terms of protecting women's health. We knew that was bogus then, and now we can say, look, it was bogus and one of our clients, Alabama Dalton Johnson who runs a clinic, there said in some, it's a relief, it's a relief now that we can just say that what we've been telling you all along as true what they wanna do is ban abortion, and they've done that now and does it all rest in the hands of the five justices at the end of the day. Well, certainly with respect to Rover swayed at does. But there is so many other ways to protect abortion, that people can engage in. And so we see at the state level pushing their politicians to hold them accountable. Make sure that they will pass measures to protect access to abortion in state constitutions. We've been seeing the right to abortion recognized for example, the Kansas supreme court just issued a ruling. Saying that in their state constitution abortion would be protected. So while we will fight to ensure that Roe versus Wade is upheld. There's a tremendous activity that can happen at the state level that people should be engaged in to protect access to abortion, when not a big fan of war analogies in general. But a lot of people have described this assault on abortion rights, as a part of a war on women, this, a part of a larger trend of things that you see in the political landscape. Absolutely. I, I wanna take a positive note that explicitly that there are people other than women who seek access to abortion, trans men, non binary individuals. So want to explicitly acknowledge that there are other people than women who seek access to worship but, you know, why I do this work in my Kenna came to this work is because I've always seen that controlling access to worship and contraception is a way of controlling women's ability to be qu'ils in society. And I think it's all part and parcel of the attempts to. To have women fit some stereotype about what their role in society should be. And that is mother's not working in the home, and it's this very retrograde idea of women's role in society. So I think if you look at all the other things that are going on all the other fights that, you know, we're having here at the issue about protecting women protecting t- individuals protecting the right to privacy. It's all connected will there's the question of law. There's the question of science around viability. But as you just stated, it's really also a question of culture and one of the other issues that you've been addressing in your work is the role that religious exemptions and other sorts of conflicts between freedom of religion and the right to privacy. Can you talk a little bit about that work? Sure. Absolutely. So we have worked on a interdisciplinary way with the LGBT department and women's rights and our religion project to really try to. Address this issue of the use of religion to discriminate against other people or to take away their rights. So I've been doing a lot of that work with respect to access to contraception and the use of religion to try to eliminate insurance coverage for contraception that is otherwise guaranteed by law. So I was involved in the hobby lobby case coordinating. The Emeka suffers writing are brief explaining to the supreme court, this long history of the use of religion with respected discrimination in the hubby lobby case. Can you just give us the ones though the Obama administration as part of the Affordable Care Act passed a measure to ensure access to contraception with no cost in any plan? That was covered by the Affordable Care Act. So anyone who had a health plan that was included in the Affordable Care Act, head coverage for all methods of contraception all prescription methods of contraception without cost. And number of entities including hobby lobby sued saying that it was against. Their religion to include contraception in their employees health plan. So said decades-long battle that still rages today about whether employers can use their religion to take away contraception coverage in an employee health plan, and the Trump administration has tried to moralize that in a new rule, basically rolling back the Obama era rule, and we're involved in those fights to block that. And right now, there's a couple of lawsuits that we've been helping out with in Pennsylvania, and in California that have blocked the Trump administration's attempt to roll back the Obama contraception coverage requirement. There's an almost dizzying array of kinds of restrictions on abortion, one other that I think, is particularly interesting is the waiting periods. And the other ways that the conversations that a person seeking an abortion has policed. Right. Can you talk a bit about those types of restrictions, as well? Sure. And actually, this is a good way to also talk about the moment of history that were in. Now and where we were in nineteen ninety two when a similar issue was presented to the supreme court. So the supreme court said in nineteen Ninety-two in case called Planned Parenthood versus Casey that states may an act waiting periods between time when they receive information that is promulgated by the state and the abortion. We think a lot of information as biased and designed to try to convince a woman who is seeking access to abortion, not to have that abortion. And we think that's very problematic. And then after receiving that information she must twenty four hours before getting the abortion, the supreme court in nineteen Ninety-two upheld this restriction and said it did not, at least in Pennsylvania. Create an undue burden in that case is incredibly important for couple of reasons that was the last time in our history, where people thought that Roe versus Wade might be overturned and almost was and a lot has been written about the history of what was going on behind the scenes in nineteen. Ninety two and Justice Kennedy basically switched his vote. There was a plurality decision, upholding, the fundamental rights to abortion, but really watering, down the test for abortion, restrictions to be valuated under and the supreme court in nineteen Ninety-two upheld. Amanda, Tori, waiting, period, this mandatory by counseling parental involvement for minors. The only thing that they struck down was requirement that a woman, tell her husband that she was eeking access to abortion. That's the only restriction that got struck down. And then for decades, we had to live with us watered down test of valuation abortion restrictions and all these restrictions that we were not able to strike down piled on top of each other pushing worship care out of reach, for so many people won't over that because of the twenty four hour waiting periods. Some of the clients in Kentucky who've traveled long distances ended up sleeping in their cars in the parking lot in order to. Wait out the clock which seems to be the very definition of an undue burden before. Casey moves that goalpost whether it's substantial obstacle that's placed in the path of people seeking access to abortion and also just the dignity of any other medical procedure. Imagine the government forcing you to wait twenty four hours to travel so far and then to be forced to sleep in your car in order to get the procedure, we wouldn't stand for that unthinkable. Well, it's interesting, I want to come back to the point you made that the one thing that the supreme court in Casey did strike down was the requirement that a person seeking abortion, tell their husband and this sort of calls back to griswald, which is the difference in how married women have been treated versus other people who are seeking an abortion. Yeah. It's interesting in coming back result versus Connecticut, which was the supreme court decision that established a married couples right to privacy to use contraception. That was later extended by Eisenstaedt on versus Baird in the nineteen seventies to single people. But you're right that the right to privacy was about this like intimate married couple personal decision making, and that's kind of the Genesis of it. And the parent versus Casey decision strikes down, the spouse will notice provision largely because of domestic violence. The court says that, you know, in a healthy marriage, most women will tell their husbands that there. Are seeking an abortion and it will be a discussion and the decision jointly. But there are some relationships that aren't like that, and it will be devastating dangerous, and even deadly to women who are in abusive relationships, they're forced to tell their husband that they're seeking access to abortion, will knowing that the supreme court historically has had this orientational sort of working from a baseline of the nuclear mother father, family. And of that, there's not a unique perspective to the supreme court is there any way that you tailor your arguments or pick your clients to try to appeal to those types of interests, or do you just say they're wrong from the get-go, they're wrong from the get-go as what we say, and, you know, we don't necessarily want to feed into that belief that only certain people and certain relationships should be able to get access to or Schnur contraception. We think everybody should have the right to make decisions about the respective healthcare. They can consult whomever. They want obviously in the process in most people do consult their most trusted, companions that should not be tainted by the government. We want to ensure that everybody has access to abortion, contraception. And when we bring these cases were usually bringing them on behalf of providers on behalf of their patients, you mentioned that the reason that you came to this work is the impulse to protect autonomy and equality for people who may become pregnant, but. Now you've been doing it for twenty years. And I can't imagine that. It's an easy way to spend your days. How do you maintain your optimism maintain your drive in the face of all these obstacles in some ways, I'm compelled to do this work? I can't even describe it. You know, even on days when I'm the most tired, I can't imagine doing anything else. I can't imagine spending my day any other way. I feel so viscerally Tron to this work in a way that sometimes I can't even really articulate, but I feel incredibly fortunate to be doing this work in this particular moment. I definitely tired, I think, you know, it's funny when people say that I've been working tirelessly as you do. I really read that. But I'm like I don't. I'm tired, I keep going. And I feel like we don't get the luxury of being tired. We sit in this position of being able to use our tools to help people, and that's what we do. We're inspiring all of your colleagues here in the building. But I know you're also inspiring a lot of people around the country. And I wonder if you have any advice for somebody who wants to pick up this battle and be the next bridge at Amiri. Yeah, absolutely. That's great. Because we need all the help that we can get, I would say start with your local community start with thinking about how you can help the organizations on the ground. And there's so many ways to do that. So I would contact your local abortion provider. I would talk to your local abortion fund, your local reproductive rights organization, and say, how can I get involved? How can I volunteer? How can I donate? How can I become part of the movement? You don't just have to be a lawyer to do that there so many ways to do that. And we really need. Everyone's voice is contact your elected officials. Tell them, this is how you're going to make your decisions about voting in the next election. And we really hope that ever. Everybody, engages like I said, it's an all hands on deck moment on our states, as you mentioned that are pushing back in the positive direction, including Vermont, in Nevada who recently passed bills protecting the right to which I don't know if they've been passed all the way through the final stage. But at least they made it through the first stages. Yeah. And also, you know, this is something that's incredibly important to that, if the worst case scenario happens if Roe versus Wade is overturned, and states are making their own decision about whether to allow access to abortion, obviously, about half the states will continue to allow Boertien, and we wanna make sure that those states have as few or no restrictions on access to abortion. So then when people come to those states, they're able to get access to care easily. So mean as a perfect example of this, they just passed a law, repealing the requirement that only doctors provide abortions to allow advanced practice clinicians to provide abortions as well. So expanding access. To worship in the states that will become haven if Roe versus Wade overturned is a deliberate part of art movement strategy. Yeah, I mean with this wave of new laws, not the progressive ones, but the restrictive ones in the prospect of possibly Roe v. Wade being overturned, I know you talked a lot about, that's not the only thing going on. We shouldn't ignorant all the other developments in just be worried about rove away. But as you said, that's kind of the worst case scenario on the other hand, the good news is that two-thirds of Americans want Roe v. Wade to stay in place. And I also read that eighty percent one emotion to stay legal in some form so given the variety of legal challenges, the not entirely promising prospects at the highest court in our land. Meanwhile, we have this groundswell of people who desperately want to protect the right to abortion. What's the past victory, however, narrow it may be what do you see as the possible way forward to achieve a future that you'd like to see, I think we have to fight it every level, both in terms of fighting the defensive fights and then fighting the offensive fights and we need to make. Sure that everybody is engaged in this issue, protecting the right to access abortion, at the state level. Telling your local politician that you don't wanna see these restrictions that you want to see abortion protected is incredibly important. There are measures at the federal level to do that, as well, women's health Protection, Act, for example, you're absolutely right. That the vast majority of people in this country want over his way to be upheld. They want to see abortion access in this country. One in four women in this country access abortion in their lifetimes. This is healthcare, and it's important healthcare. It's critical healthcare, and everyone can do their part to make sure that people are able to get it. We know that a seal Yousef borders, fired up and ready to go. And I know this is an extraordinarily hectic times. We appreciate you taking the time in for all your work. Thanks very much Bridget. Thanks. Thanks very much for listening, if you'd like to hear more conversations like this one please be sure to subscribe at liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback till next week piece.

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