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The Political Scene | The New Yorker
Jeffrey Toobin and Jill Lepore discuss abortion rights on the fortieth anniversary of Roe v. Wade.
00:18:46
Jeffrey Toobin and Jill Lepore discuss abortion rights on the fortieth anniversary of Roe v. Wade.
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A
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B
This is the Political Scene, a weekly conversation with New Yorker writers and editors about Politics. It's Thursday, January 17th. I'm Dorothy Wickenden, executive editor of the New Yorker.
- [01:24]
C
Good evening. In a landmark ruling, the Supreme Court today legalized abortions. The major cases from Texas and Georgia said that the decision to end a pregnancy during the first three months belongs to the woman and her doctor, not the government. Thus, the anti abortion laws of 46 states were rendered unconstitutional. More on this story.
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B
That was Walter Cronkite on January 22, 1973, announcing the momentous outcome of Roe v. Wade on the CBS Evening News. Jill Lepore and Jeffrey Toobin are with me today to discuss the 40th anniversary of Roe v. Wade. Jeff In 1973, the Supreme Court voted 7 to 2 to legalize abortion. Harry Blackmun wrote the opinion. Remind us exactly what was decided.
- [02:09]
D
The issue was Texas anti abortion law, which basically said abortion was illegal at all times. And that law was challenged. And the court didn't just strike down the Texas law, but the court's decision set up a trimester framework and said that no state could ban abortion at all in the first trimester, could regulate some abortions in the second trimester, and probably couldn't regulate abortions in the third trimester.
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B
It was probably the most consequential and controversial decision the Court has made. What, in the last 60 years?
- [02:46]
D
That's probably right. I mean, you might get an argument for Bush v. Gore. The health care case is very significant, but I think in terms of its lasting legal and political significance, significance, Roe v. Wade is still number one.
- [02:56]
B
And talk about that a little bit. How has it reshaped the Court and American politics?
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D
It was, I think it's safe to say, the galvanizing force of the new right, the religiously oriented conservative movement, which I think took off in part because of the school prayer decision in the 60s, but in the 1973, abortion really mobilized the conservative movement, particularly about the Court and constitutional issues. And that really has now been the defining dispute underlying Supreme Court confirmations, most notably in the Robert Bork hearings in 1987, but certainly in all of them. And there have been 13, 13 justices nominated to the Supreme Court since 1973, and abortion's been at the center of all the fights.
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B
Jill, you've written a little bit about the conventional explanation for the political frenzy over Roe v. Wade, and that the Court essentially provoked a grassroots backlash. Does that theory hold up?
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E
That argument doesn't really bear all that much scrutiny. The work that I cited in the piece I wrote a few years ago on Planned Parenthood, the legal scholars Linda Greenhouse and Reba Siegel looked pretty minutely into the records of the Nixon administration in particular, to think about just how much work had gone on behind the scenes between 1969 and 1972, when Nixon's team was beginning to plan for his reelection campaign, and where you can see kind of in a top down way, Republican insiders deciding that this issue could actually really reshape the Republican Party and could deliver evangelicals to the Republican Party, could also deliver Catholics to the Republican Party. And that's the biggest change in terms of party formation. In the early 70s, Catholics who had traditionally been Democratic become Republican. And so that whole sort of shifting alliance, Siegel and Greenhouse argue, actually comes well before Roe. So you even have something like, you know, in 1982, Paul Brown, who's the guy who founded the American Life League, says, you know, Jerry Falwell couldn't spell abortion five years ago. It really that transformation that comes later down the line, Siegel and Greenhouse argue, pretty persuasively has its roots not in Roe, but in the years before Roe. And that's an important argument to. Because if the backlash argument is right and Roe is responsible for all this political polarization and a fair amount of misery all around in the decades since then, we ought to maybe be cautious about how the courts work and about seeking a legal remedy. And that, in fact, is what Siegel suggests has happened, that liberals have become extremely cautious about the use of the courts, whereas the right has no such hesitation.
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D
And this is highly, highly topical as the Supreme Court is about to wade into the subject of same sex marriage.
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E
Absolutely.
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D
Because there are a lot of liberals, Democrats, supporters of same sex marriage, who don't want the Court to lead on this issue, who want the Court to let California have same sex marriage but not use the Proposition 8 case to declare every state in the union must have same sex marriage. There are people who believe, who are supporters of same sex marriage who believe the state by state fight is going very well. There are nine states now. There will almost certainly be 11 states shortly. And if the Court were to grant the right to same sex marriage in every state, that would mobilize opposition in a way that the state by state process has not. Now, on the other hand, there are liberals, Democrat supporters of same sex marriage who say the hell with that. This is a violation of the Constitution to deny gay people the right to marry. And that's why we have a Supreme Court and full speed ahead. That's a tension within the progressive movement.
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B
That is really interesting. Let's get back to that in a few minutes. But I want to stick to Roe just for another moment or two. You wrote some years ago that Roe is a rickety landmark, but that it's proved resilient. And I guess the biggest potential challenge came in Planned Parenthood v. Casey in 1992. How did that decision affect abortion rights?
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D
The Court's rationale for supporting abortion rights has changed a great deal over the years. And in the Casey decision, they said that under the liberty clause of the 14th Amendment, there couldn't be an undue burden on women's right to an abortion. Now what exactly is an undue burden remains controversial and unclear, but certainly an all out ban on abortion is now unconstitutional. And that's what happened in the Casey decision, which was a great surprise to many people because in 1992 you had justices like Anthony Kennedy and David Souter and Sandra Day o' Connor whose views on abortion we didn't really know at that point for sure. And their decision to support Roe really locked in Roe v. Wade as a settled precedent ever since. And Roe really has not been in jeopardy in the Supreme Court. There have always been five votes for Roe since 1992.
- [07:51]
B
And doesn't the debate over abortion come down to basically the prevailing understanding at the time of the Constitution, which itself, you know, evolves? As you've just pointed out, the Court has changed a great deal since 73. What more can you tell us about that?
- [08:06]
D
You touch on a very freighted subject there, which is whether in interpreting the Constitution, you should look back to what the framers intended. That concept, which is known as originalism, is embraced by Antonin Scalia, by Clarence Thomas. But many people don't buy that theory. So the idea of what the Framers believe and whether we should be bound by it is itself very controversial. The question about the constitutionality of abortion laws really goes to what you think the 14th amendment means. Does it mean that the government has to set up fair procedures, or is there a substantive right that the states can't take away? The Court has said that abortion is one of those substantive rights, but that remains very controversial.
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B
Jill, anything to add?
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E
Well, I think it is the case that the abortion rights movement made a decision to advocate this cause through the right to privacy, a decision not to work with the equal protection clause, which may have given us a different outcome, but it also kind of changes the political landscape because the rhetoric of the movement is in some ways quite confined. The debate really works by people making arguments about abortion itself and separating abortion from contraception in how we think about it as a legal matter. But actually from the vantage of public health, you can't separate abortion from contraception. Right. So the conversation is already, unfortunately, politically and from a kind of healthcare policy screwed up.
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D
And another factor that reinforces, I think, the complexity and confusion that Jill is talking about is technology. One of the issues that Harry Blackmun wrote about in Roe in 1973 was viability outside the womb. And that has changed. It hasn't changed that much. 23 weeks, 25 weeks. That is something that has changed. By the same token, the notion of the difference between contraception and abortion. You now have medicines, pills, RU486, abortions that operate somewhat like contraception. That is new to the debate and injects another level of complexity.
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B
But it has changed the way abortion foes have framed their arguments too, has it not? There's now this argument that personhood begins at conception and anything after that is murder.
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D
But it also presents a problem for the anti abortion movement because abortion remains controversial. In fact, some Polls suggest that abortion is less popular as a political cause than it used to be. But contraception is not controversial. It is quite popular. And to the extent the anti abortion movement is perceived as interfering with women's right to contraception, that's really a problem.
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B
Okay, I want to get to contraception in a second, but first to ask you, Jeff, Justice Ginsburg once noted that abortion rights, as she put it, center on a woman's autonomy to determine her life's course and thus to enjoy equal citizenship stature. She'll be retiring soon and doubtless Obama will replace her with a justice of like minded views. But how prevalent is that particular view of abortion on the court?
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D
As Jill said originally, abortion was grounded in the right to privacy, which is frankly a rather nebulous concept in constitutional history. The word privacy does not appear in the Constitution. It's based on a decision from 1965, Griswold vs Connecticut, which said that states couldn't ban married couples from buying birth control. And Justice Douglas created the right to privacy. Even among abortion rights supporters, privacy is considered a somewhat nebulous peg on which to put abortion rights. Equal protection, the concept that if you ban abortion, you are discriminating against women, that is a favored view of Justice Ginsburg. If Ginsburg is ever in the majority. And if progressives are in the majority in a major abortion decision again, it is very likely they would ground it in equal rights for women rather than in the more nebulous concept of privacy.
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B
That's interesting. So now back to contraception. And Jill, I want to ask you. One of the most surprising turns I thought, in the 2012 election was the eruption of birth control, rape and abortion as major issues. You know, Mitt Romney pledged to get rid of Planned Parenthood and overturn Roe if he was elected. Republican Senate candidate Todd Akin ruined his chances of beating Claire McCaskill when he suggested that women couldn't get pregnant for legitimate rape, as he put it. And Richard Murdoch lost after he said he wouldn't make an exception for abortions in the case of rape. So this all played out in somewhat unexpected ways. Have certain extreme positions on social issues turned into potential liabilities for the Republican Party?
- [12:53]
E
Absolutely. That's one of the very important stories of the election of 2012. There's just, there's no denying that I think that on the who though, there's a fair amount of party discipline to stay away from the issue of contraception for exactly the reason that Jeff suggests. While I would say the base of the pro life movement, those are people who are very concerned about the degree to which some forms of contraception can be understood as abortifacients, or they wanted them to be understood in that way and also criminalized similarly. That's not the case for most people who are running for office, and certainly not for most people who are running for national office. And they do a very good job of skirting the question. I interviewed Charmaine Yost, the head of Americans United for Life, a couple of years ago, and I kept asking her about contraception, and she kept saying, you know what? Contraception is something that Planned Parenthood wants to talk about all the time. Because they sort of want to trick us up over it. You know, they kind of want us to say that we're opposed to contraception. We're not, we're opposed to abortion. But the real issue is that what one side means by abortion is what the other side means by contraception. So the only solution, really, for candidates who are not running from the very far right in a primary is to try very hard not to talk about. But you saw in 2012 that not everybody has that kind of discipline.
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D
But I think the Republican Party has embraced a much more anti contraception position than even Jill acknowledges there. Look at what Rick Perry is doing in Texas. The concept of defunding Planned Parenthood on the theory that even though government money doesn't go for abortion, the idea is that all money is fungible. So any dollar you give to Planned Parenthood de facto supports abortion. That is now Republican gospel. And that is just an example of how the Republican Party keeps getting more and more conservative.
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B
Yes, but moderate Republicans who are still out there, they're in the party at large among the public. A majority of Republican women support women having, you know, full control over their bodies. These are the kinds of issues that got the Republicans trouble in this last election. And it's an open question about which way the party is going to go, says you.
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D
I am not persuaded. I think that the Republican Party is very disciplined. I think certainly elected officials, Republicans who live in fear, not of Democrats, but in gerrymandered districts of Republican primaries, they have much more to fear by being perceived as soft on abortion and contraception than they do from being too extreme, unconscious.
- [15:28]
B
Well, Jill, I'd be interested in hearing what you have to say about this. Women are 50% of the electorate and they support this issue. So what do you think in terms of the future of the Republican Party and how they're going to have to play these social issues?
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E
Well, I think they must be having conversations about it right now? Yes, women are 50% of the electorate. 99% of American women use contraception. So it's a losing issue if it's made more of an issue than it is. I would be willing to entertain Jeff's interpretation. I'm not quite clear on what the Republican Party thinks is best. Obviously, I think this is a fail for them. But I actually think the Democrats are rotten on this issue, too. I mean, I think just generally, women's rights is in this incredibly torpid, dormant state in this country where we are fighting for the right to have contraception available at public health care clinics. We were fighting for that in 1916. It's an absurd situation. Watching the Republicans implode over this issue is one thing, but watching the Democrats fail to take any position of leadership is incredibly frustrating.
- [16:26]
B
Absolutely.
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D
And if I can add one point about Democrats, the issue of whether abortion can be allowed in cases of rape or incest, that's become a flashpoint. And Democrats talk a lot about how they want abortion available in cases of rape or incest. That's a tiny number of abortions. And the real issue is women who get pregnant, who don't want to be pregnant. And that's where most abortions come from. That's what abortion rights is really about. And you don't hear many Democrats talking about that either.
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B
Well, I guess one of the questions is whether younger Republican women are going to be mobilized and want to help change the Republican Party, because certainly the older generation is not. And then how the Democrats are going to deal with that.
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E
Well, you know what? I think that younger Republican women and younger Democratic women probably feel the same about this. It is exhausting to watch all the political conversation about women in this country be about what happens inside of our uteruses. It's exhausting. It's just unbearable. The only way that women are talked about in politics has to do with this single issue. It's an extraordinarily frustrating situation. I think that women actually don't want to be part of the conversation. And that's why if Republicans can say, oh, yeah, we can win on this, it's because they sense that fatigue.
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B
Well, and younger women in particular just think this is ludicrous. You know, they've grown up with this as a right. It is a right. And so what is the issue? It's.
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D
But it's not clear that they will vote against people who take the opposite position. I mean, these people only have influence if they make it a voting issue.
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B
Well, and that gets Back to the cowards of the Democrats. Okay, so Jeff, I just want to talk about this term of the court. What should we expect from the court on some of the big cases this term? You mentioned the Defense of Marriage act, and there's going to be the issue of affirmative action in college admissions again.
- [18:10]
D
Well, undeterred by my flawed record in Supreme Court predictions, I'll tell you that I think affirmative action in this case looks doomed based on the oral argument, based on the records, especially Justice Kennedy, who has been the swing vote on this issue. I'm not sure they will issue a broad ruling that says affirmative action can never exist. But Justice Kennedy's pattern has been to say every affirmative action program that comes before him is unconstitutional, though he always says theoretically some could survive. I think gay rights is very different. I think the Defense of Marriage act is probably doomed by the similar token. Justice Kennedy is a great believer in both states rights and gay rights. He is the author of the two most important gay rights decisions in the history of the court. And it's very hard for me to believe that he will vote to uphold the Defense of Marriage act, which seems close to indefensible. Proposition 8th case is very different. That is potentially a broad ruling in favor of same sex marriage. I think there are many procedural outs in that case where, where the court can avoid taking a large step. There are issues about standing. There are issues about California being different from other states. I would anticipate that case being dealt with in some more limited way.
- [19:28]
B
Okay, thank you. Both Jeff Toobin and Jill Lepore are staff writers. This has been the political scene from the New Yorker. I'm Dorothy Wickenden.
- [19:36]
C
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F
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B
And I'm Lauren Good.
- [20:09]
E
I'm a senior correspondent at Wired. And our show Uncanny Valley is all about the people and power and influence of Silicon Valley.
- [20:17]
F
At Wired, we're constantly reporting on how technology is changing every aspect of our lives. So each week on the show, we get together to talk about one of the biggest stories in tech. Right. So whether we're talking about privacy, AI, social media, or a major tech figure, we will always explain the Silicon Valley forces behind these stories and how they affect you. Make sure you're following Uncanny Valley in your podcast app of choice so you don't miss an episode.
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D
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