How America’s Two Abortion Realities Are Clashing

When the Supreme Court overturned Roe v. Wade, it scrambled the landscape of abortion access in America, including in ways that one might not entirely expect. Many conservative states made the procedure essentially illegal — that part was predictable. But there’s also been this striking backlash in blue states, with many of them making historic efforts to expand abortion access, for both their residents and for women living in abortion-restricted states. And this has created all kinds of new battle lines — between states, and states and the federal government — involving travel, speech, privacy and executive power. It’s an explosion of conflicts and constitutional questions that the legal historian Mary Ziegler says has no parallel in modern times. She’s the author of six books on reproductive rights in America, including “Roe: The History of a National Obsession,” and the Martin Luther King Jr. professor of law at the University of California, Davis. “We’re seeing, from conservative and progressive states, moves to project power outside of their borders in ways we really haven’t seen in a really long time,” she told me. In this conversation, Ziegler explains the bifurcated abortion landscape that has emerged since the decision in Dobbs v. Jackson Women’s Health Organization overturned Roe. We discuss the different political and legal strategies conservative and progressive states are using to pursue their opposing goals; why the abortion rate has gone up, even as 14 states have implemented near-total bans on abortion; and how a second Trump administration could try to restrict access to abortion for all Americans, no matter what states they live in. Mentioned: “Harsh Anti-abortion Laws Are Not Empty Threats” by Mary Ziegler Book Recommendations: The Family Roe by Joshua Prager Tiny You by Jennifer L. Holland Defenders of the Unborn by Daniel K. Williams “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel Thoughts? Guest suggestions? Email us at [email protected]. You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs. This episode of “The Ezra Klein Show” was produced by Claire Gordon and Kristin Lin. Fact-checking by Michelle Harris, with Mary Marge Locker and Kate Sinclair. Our senior engineer is Jeff Geld, with additional mixing from Efim Shapiro. The show’s production team also includes Annie Galvin and Rollin Hu. Original music by Isaac Jones. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser. Special thanks to Sonia Herrero.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:03Ezra Klein?

  From New York Times Opinion, this is the Ezra Klein Show.

• 0:23Ezra Klein?

  The Dobbs decision, 2022. The Supreme Court overturns Roe v. Wade. It hands abortion, in theory, back to the states. What would you have thought then the consequence of that decision on abortion would be now? I read one prediction then, that about 25% of women who needed an abortion would be unable to get one. That seemed plausible to me. But the best estimates we have now suggest the number of abortions in the country, the rate of abortion, has gone slightly up, not down. That's true even though abortion has been harshly criminalized in a number of states. True even though we've seen court rulings as extreme as the one in Alabama, who just ruled fertilized embryos used in

• 1:03Ezra Klein?

  IVF processes are children and must be treated as such. What Dobbs has done is stranger, I think, than what was expected. What it has done is bifurcate America. Red states have sharply constricted access to abortion, or tried to. Blue states have sharply expanded access to abortion, or tried to. Both sides are trying to enlist the Supreme Court on their side. Both sides are running in 2024 on a promise that if they are given control of the federal government, they will do what the states cannot do and decide the issue nationally in favor of their side. Mary Ziegler is a legal historian and the author of six books about reproductive rights and the law in America. So I asked her on the show to walk me through all of it. As always, my email, ezra klein show at nytimes.com.

• 1:54Ezra Klein?

  Mary Ziegler, welcome to the show.

• 1:56Speaker 01

  Thanks for having me.

• 1:57Ezra Klein?

  So this is something that surprised me, that since Dobbs, the data suggests that the number of abortions in America has, if anything, slightly increased. Why would that be?

• 2:09Speaker 01

  Well, I think it's much easier to ban abortion than it is to enforce a criminal law against abortion. And that's particularly true in 2024, when people can travel across state lines. Sometimes that distance isn't even very considerable. If you're traveling from St. Louis, Missouri, for example, to East St. Louis, Illinois, that can be a 15 or 20 minute drive. And of course, people can get abortion pills on the internet and self-manage abortions or manage abortions through telehealth. And so I think one of the major challenges for the anti-abortion movement going forward is to figure out what an enforceable abortion ban actually would involve.

• 2:45Ezra Klein?

  But I want to hold for a minute on the strangeness of that result. Because I take your point. It's easier to ban abortion than to enforce a ban on abortion. But it does look, from early data, that if you want to get an abortion in a red state, it has become harder. And many of the people who want that are not able to get it. So a small rise here is interesting. And it suggests an expansion of either abortion access, knowledge of the ways you can get an abortion, something in the states where it is legal and where there have been moves to protect it. So where has the sort of post-Dobbs world turned out very differently than maybe the litigants who wanted Roe to fall expected?

• 3:27Speaker 01

  Failing to convince people that they don't need abortions or even that abortions are wrong also helps to explain why abortions haven't decreased, right? I mean, abortion rates reflect, I think, both supply and demand, right? How easy it is to get access to abortion, but also how much people need or want abortion. And of course, Dobbs did nothing to change people's need or want for abortion. If anything, I think the backlash to Dobbs may have made some people feel more comfortable if they've already decided to terminate a pregnancy, that they're not doing anything wrong.

• 3:59Ezra Klein?

  There are always two arguments in the quest to repeal Roe. And one argument is that abortion is wrong, and it was wrong for the Supreme Court to make it legal. The other argument is that it was wrong for the Supreme Court to insert itself in this process, because this process should naturally be done on the political side of the system. So the decision in Dobbs itself states that, quote, "authority to regulate abortion is returned to the people and their elected representatives." And if that was the aim here, you know, you have more restrictive policies in red states, more liberal ones in blue states, some amount of kind of people crossing over or shipping pills from one place to another, you might imagine that working itself out as being

• 4:43Ezra Klein?

  fine, sort of even the intended outcome here, right? We just didn't want the courts deciding what you could and couldn't do. I don't get the sense that that is how either side of the coalition sees it, but particularly not the pro-life side. How have they experienced this? How have they experienced both what has been happening sort of in terms of the total abortion rate, but also what has been happening in terms of the question of who should get to decide this and how?

• 5:07Speaker 01

  Yeah, I think one thing that's important is I think both of these movements, really since the 1960s, have understood themselves as fighting for fundamental human or constitutional rights. When you hear people talk in either movement, they don't talk as if this is just about what American voters want. They speak as if a higher principle is at stake. So people in the pro-life movement have long said the word "person" in the Constitution applies from the moment an egg is fertilized, and as a result, that person has fundamental rights that abortion takes away. And so I think while Roe was the law, many people in the pro-life movement believed that given a fair chance, Americans would understand what abortion was, and they would come to oppose it and vote against it. But underlying that assumption was the basic premise that if Americans didn't come to

• 5:52Speaker 01

  that conclusion, if they didn't realize that abortion was the human rights tragedy of our generation, ultimately, it wouldn't matter, right? That this was still a human rights cause, abortion was still wrong, abortion laws that were liberal were still unconstitutional. That was still the first principle. And I think what we've seen since Dobbs has been that American voters defied what pro-life leaders were predicting and have generally supported abortion rights, including in conservative states like Ohio, at least to a greater degree than people in the pro-life movement would have expected. And I think we've seen pro-life leaders say time and again, in response to that, that the principles that they've espoused, right, the personhood and the right to life of the

• 6:34Speaker 01

  preborn or unborn child, as they would put it, trumps what voters want, trumps majority rule. In some ways, that isn't a surprise because that was what brought people to the movement in the first place. But we're seeing, I think, that tension play out much more forcefully post-Dobbs because people in the pro-life movement, having been unable to persuade voters, are having to find other ways to enforce the policies they're pursuing.

• 6:57Ezra Klein?

  There was, for a very long time, this theory that the Supreme Court, in inserting itself into this issue, had blocked the kind of political process that would have led to natural compromise. But when I look at what you've seen across states, when I look at the blue states that have liberalized access, the red states that have put in various laws and are experimenting with even more to constrict access or criminalize it altogether, I don't really see a process of legislators trying to find the messy median voter in this, trying to find that kind of complex place where the 50th percentile of the electorate actually sits. What I see is political bifurcation, a splitting of the country into a blue America that has

• 7:39Ezra Klein?

  a much more expansive right to abortion than it even had under Roe, and a red America that has a, in some cases, unbelievably constricted right, right? We'll talk about the Alabama IVF ruling. Is that what you see? Is that how you would describe it?

• 7:55Speaker 01

  No, I think that's right. And in some ways, the bifurcation might not surprise us because we see it across a range of issues. But I think what's striking about it is that, especially on the pro-life side, it doesn't really track what voters seem to want. There's a pretty big divergence, and arguably, I think, on the pro-choice side, too, although the evidence there is less clear. There seems to be sometimes a gap between what voters would prefer and what the parties are pursuing. And that is, I think, raises questions about the health of the democracy, right? If our abortion politics don't reflect our abortion views, what does that tell us about the health of the democracy? And I think that question's been floating around for a while, but it's harder to avoid now that we see these fights playing out in each state after Dobbs.

• 8:38Ezra Klein?

  So I want to pick up on that to look at the way in which then the country is bifurcating. And let's begin on the red side. You've seen a number of Republican-led states coming up with a range of strategies, both legal and legislative, to try to make it harder to get an abortion, illegal to get an abortion, make it harder to travel for an abortion. What would you say, as you look across the map, are the broad categories of strategy that have been popular?

• 9:10Speaker 01

  So I think some of the strategies involve simply tightening state bans. So one trend, for example, is to say red states are no longer going to have exceptions to abortion bans, they're going to have affirmative defenses, meaning if you're a doctor, you actually have to prove you didn't do anything wrong, rather than a prosecutor having to prove that you did do something wrong. We've seen red states, too, trying to redefine abortion, the meaning of abortions shifting. We've seen upwards of 10 states, I think it's 14 or 15, that have changed their definition of abortion in abortion restrictive states since Dobbs. A lot of the strategies ironically also rely on the federal courts. So we've seen abortion opponents turning back to the federal courts, believing that

• 9:53Speaker 01

  the US Supreme Court will be sympathetic to their cause and seeking to limit, for example, access to mifepristone, a drug that's used with misoprostal in more than half of all US abortions, by arguing in federal court that the FDA didn't have the authority to approve the drug. We've seen other anti-abortion lawyers trying to revive this 19th century obscenity law called the Comstock Act and repurpose it as a de facto ban on abortions in federal court. And I think that, again, speaks to this feeling that many in the pro-life movement have, that what matters is protecting a right to life, or what matters is advancing their cause and not necessarily doing so in the most democratic ways possible.

• 10:35Speaker 01

  And then finally, I think we're beginning to see, this is just starting, efforts to regulate what happens in states where abortion is legal, either by limiting travel or by seeking to apply the laws of red states extraterritorially within the boundaries of blue states, although I think that process is just getting started and is likely to accelerate in the years to come.

• 10:57Ezra Klein?

  Let's hold for a minute on the mifepristone situation, because this is a place where it feels to me That the anti-abortion movement was not quite ready for what it was going to face in a post-DOMS world. And the way I would describe it is that people for a long time thought that this was a political question, and they weren't quite prepared for it to have become also a technological question. Previously, if you could ban abortion in a state, then you had to move the person for them to be able to get an abortion, because you could just knock out all the providers in the state. And that put a lot of burden, of cost, of mobility, et cetera, on the people who might want an abortion. And now

• 11:41Ezra Klein?

  you just have to move a pill. And you can move a pill into a state quite easily. And this is a place where blue states have not only liberalized abortion access, but have also made themselves a kind of umbrella of abortion access reaching into red states. So 17 states have created these shield laws that protect providers from having to cooperate with out-of-state law enforcement. About a half dozen of them or so have made it possible for abortion providers in blue states to run these mail order and telehealth prescription programs, where they will send misoprostone and the subsequent drugs you need to people who need them in red states. And that seems to be a very large part of the reason why the abortion rate, particularly in red states, has not dropped, as people might have expected,

• 12:22Ezra Klein?

  because you can get these pills. Can you talk a bit about how that has shifted the landscape here, and a bit about what we are expecting to happen in the court cases around it?

• 12:33Speaker 01

  Yeah, I think that cutting out access to misoprostone has become kind of preoccupation for the pro-life movement. And they pursued any number of different strategies to address it. Some of them seem more exotic or even outlandish. You see, for example, the group Students for Life arguing that misoprostone is a forever chemical and should be regulated in that way, in a restrictive way, by the Environmental Protection Agency.

• 13:01Ezra Klein?

  What does a forever chemical mean?

• 13:03Speaker 01

  Well, so this is something that's in more common parlance in the environmentalist world, but right, a chemical that never goes away, that pollutes our groundwater, that jeopardizes the health of future generations. This is an argument, I think, essentially pitched to Gen Z, saying Mifepristone is a problem if you care about climate change, if you care about groundwater, if you care about the health of the environment. I don't think necessarily that argument's going to work, but it's just symptomatic of the almost desperation of the pro-life movement in trying to find a strategy that will work with Mifepristone. Court strategies seem more promising, in part because the courts are conservative, right? And the pro-life movement just, of course, scored a major victory in Dobbs.

• 13:44Speaker 01

  So the strategy that's before the US Supreme Court now argues essentially that the Food and Drug Administration didn't have the authority to approve Mifepristone way back in 2000 under this regulation called Subpart H. And pro-life attorneys argue that's because that regulation applies to diseases and would often require a drug to be more safe than available alternatives. And pro-life attorneys argue that pregnancy is not a disease and that Mifepristone is not safer than alternatives that were available in 2000, like surgical abortion. But the case goes further and says, even if you, the Supreme Court, are not ready to say the FDA didn't have the authority to approve Mifepristone, they're also arguing

• 14:28Speaker 01

  that the FDA didn't have the authority to lift some of the restrictions on Mifepristone in 2016 and subsequently, right? The lifting of restrictions that made telehealth abortion possible. So it's worth emphasizing that even a kind of modest win, in some ways, for the pro-life movement could be a big deal. They're also bringing the Comstock Act into this case, arguing that the FDA didn't have the authority to approve telehealth abortion because mailing abortion pills is a crime, under federal law, they argue, because of the Comstock Act. So there are a lot of different, pretty explosive possibilities on the table when the Supreme Court hears this case, both for Mifepristone, for the kind of precedent this could set for challenging the approval of other drugs that get pulled into the culture wars, and

• 15:12Speaker 01

  potentially for the revival of the Comstock Act.

• 15:16Ezra Klein?

  And just to say a word on the Comstock Act. This is an old law, not thought about that often in modern times, that criminalizes the mailing of certain kinds of materials that are considered lewd, vile, that kind of thing. I understand it primarily as an anti-pornography law, but the idea is you can have an unusual expansion of it to basically saying mithypristone and things like that are indecent.

• 15:41Speaker 01

  That's right. So the Comstock Act was first passed in 1873 as an obscenity law. The preoccupation of the people who passed the law was clearly illicit sex. So it bars the mailing of any number of items deemed obscene, including items that the law describes as for indecent or immoral use, including items intended, designed, or adapted for abortion. So the law hasn't been much enforced at all in the past century, and to the extent it has, has been enforced primarily in cases involving pornography. But pro-life lawyers point to this language of the statute and say, to begin with, that you can't mail abortion pills because of the Comstock Act, notwithstanding what federal

• 16:23Speaker 01

  courts have said about the meaning of the statute. And second, some of them argue that it's a ban on all abortions because they argue there is no abortion, surgical, medical, or otherwise, in the United States that takes place without an item placed in the mail. That interpretation, in some ways, is before the US Supreme Court, and we may or may not hear about what they think about it by the end of June.

• 16:47Ezra Klein?

  There's a way in which the pro-life movement right now is very explicit in interviews about saying, you know, the best thing for us is to take a more moderate national position, try to make the argument that Democrats are now promoting or backing an unlimited right to abortion, but we're where the people are, and we're open to 10-week, 14-week, even 16-week. And at the same time, what's happening in red states is often almost deliriously extreme, that it doesn't really make that kind of repositioning very easy. So you have these red states that have really wrapped themselves around an axle of being unable to even uphold basic life and health of the mother exceptions. And

• 17:30Ezra Klein?

  you see terrible stories of people who want children, who don't want to have an abortion, but who suffer life-threatening complications, not being able to get care until the absolute last minute and ending up in critical care because of it. You have this very strange ruling in Alabama, which decided that embryos from IVF are children. How do you think about that, where a lot of these red states, given the choice between having maybe these more politically palatable rules, and having, I think, what you might call a more embrace of fetal personhood as a goal and as a policy approach, have been choosing the fetal personhood approach despite the fact that it's causing huge, huge, huge political problems for the broader movement?

• 18:15Speaker 01

  Yeah, I mean, I think this is an example of how the incentives for the pro-life movement and for Republicans in politically uncompetitive states like Alabama just don't align with the incentives for Republicans and politically competitive races. The pro-life movement at the moment, I think, is becoming disillusioned with voters, right, and convinced that voters are not willing to do the right thing when it comes to protecting the right to life, and that therefore the movement needs to find ways to bypass voters. State legislators and state Supreme Court justices may actually benefit politically from doing some of the things that play so poorly at the national level, right? So in Texas, when Kate Cox was pursuing an abortion in a case where her health was threatened and she realized

• 19:00Speaker 01

  that a child she desperately wanted had a condition that was likely to be fatal in the first year after birth-

• 19:06Speaker 02

  There's nobody that loves and wants a baby girl more than I do. But there's no outcomes at the end of this where I take home a healthy baby girl, and I want to do what's best for my health. Sorry. A moment.

• 19:22Speaker 01

  Texas officials not only denied her the ability to have an abortion, but presented her as a liar and threatened hospitals that would have even considered treating her, even when she temporarily had a court order permitting an abortion. And I think the reason that's happening is because in Texas, that kind of decision may not play as poorly. So, part of what I think is problematic for Republicans at the national level is that their allies in the pro-life movement and their counterparts in the states aren't on the same page necessarily about either what the right thing to do is, or I think more importantly, what the politically advantageous thing to do is, which has put Republicans

• 20:04Speaker 01

  even more, I think, between a rock and a hard place than they otherwise would be post Dobbs.

• 20:09Ezra Klein?

  Why do red states, or so many red states, have such narrow exemptions for the life of the mother?

• 20:16Speaker 01

  There are two reasons red states have narrow exemptions. I think first, there's been a kind of growing consensus among pro-life groups that any life-saving procedure just isn't an abortion in the first place, right? They'll call it maternal fetal separation, or something of the kind. So, the idea is that abortions that are presented as life-saving either are not abortions, or are simply pretext for abortion that's elective. The second reason, I think, is that there's a fundamental distrust of doctors, and to a lesser extent, patients, that you see cutting across not just life exceptions, but health exceptions, and even exceptions for sexual assault. Again, the idea being that what people who support reproductive rights want is not narrow

• 20:59Speaker 01

  access to abortion, they want access to abortion that's broad. And so, any exception will become the exception that swallows the rule. So, then you'll see conservative lawmakers trying to craft exceptions to preclude that from happening, to prevent what they see as the abuse of exceptions. So, the fundamental concern often in the way exceptions are drafted is not ensuring that deserving people as legislators would see it can use the exceptions, it's primarily to ensure that people who are not deserving, in their eyes, cannot. And that's part of why you see state exceptions drawn up the way they are.

• 21:35Ezra Klein?

  But are these ideas popular even in red states? And I say that as an actual question, I genuinely don't know. I mean, is what just happened in Alabama, where they say that these fertilized embryos are children, I mean, there's a, I thought, a very... Moving comment in one of the news stories I read where a woman who was undergoing IVF said, I have three embryos. I don't have three children, right? Like, I know many people with embryos and they don't have children, right? That's a very hard and difficult process. Some of the stories have come out of Texas around, you know, health of the mother exemptions. They're really brutal. Do these reflect the politics in these states? Because we have seen in a bunch of them, Kansas being, I think, a big example, but

• 22:17Ezra Klein?

  Ohio being another, we have seen in states that are now understood as comfortably quite Republican, that when abortion rights are put directly on the ballot, not done through representative democracy, you know, like legislators and governors, but done through ballot initiatives, that they seem to be winning despite the partisan lean of the state.

• 22:37Speaker 01

  Yeah, I don't think they reflect what voters want. I think they instead reflect the fact that these are states where politicians don't have to worry about political competition. So if you're a legislator or a judge in Alabama, if you're a legislator, you're worrying about a primary challenge from your right. You're not worried, for the most part, about losing to a Democrat in a general election. And you're not worried that voters are going to turn you out of office if you take a brutal or unforgiving position on access to care in cases of threats to life or health. That's just not a realistic problem for you. So you're going to be thinking more about what donors want, what base voters want, what

• 23:17Speaker 01

  potentially primary voters want. And so we have a dynamic where in large swaths of the country where bans are in place, politicians don't feel accountable to the median voter in the way that we might expect. And so see it as politically advantageous to pursue policies that are unpopular, even, I think, in extreme cases, policies that prevent voters from weighing in altogether. I mean, some of the really striking examples, again, we saw this in Ohio and we see it elsewhere, involve Republicans trying to make it harder for voters to even begin ballot initiative processes, which were unsurprisingly almost always unpopular, right? If you ask voters if voters want to have less power, the answer

• 23:57Speaker 01

  is usually no. But I think, again, the reason Republicans can pursue that kind of strategy is because they know that even if voters reject the strategy, they're unlikely to award Democrats a majority in some of these states. Nevertheless, because polarization is so deep, because states are so gerrymandered, that's really the dynamic. It's not a question of whether there are voters in red states who support everything that's going on. I think the IVF example is a particularly potent one. I've seen poll numbers suggesting that, you know, between 80 and 85% of Americans support access to IVF. And we've seen legislators in Alabama bending over backwards to try to do something to address the consequences of the court's ruling. But I think even if

• 24:42Speaker 01

  they didn't, I'm not sure that Alabama would see any kind of significant change as to who controls it politically.

• 24:49Ezra Klein?

  How much does the porousness of borders on this that we were talking about earlier, the availability of ifiprestone, the ability to travel, how much does that make this divergence from the median voter or even the minority voter in a lot of these states possible? And I'm thinking here of places like Texas, which, you know, when we talk about Texas politically, we think big red state. But you look at Texas, right? And there are a lot of, forget Democrats, just people who want access to reproductive rights there. I mean, you look at Austin and the people and the companies located there, which is a very important engine of the Texas economy, Houston, Dallas. You think about Florida, where they've passed a very, very sharp ban that is under court conflict now. But you think about the

• 25:34Ezra Klein?

  people who live in Miami, who live in Jacksonville, who live in Tampa, right? I mean, that's important to the Florida economy. It is important to who is in Florida. But in a world where the right got its wish and you really shut down access to ifiprestone, you really shut down the ability to leave the state if you needed an abortion. And then I wonder what it looks like to be in these states if you're a woman or a couple of childbearing age and you face these kinds of dangers if you get pregnant or you end up in a medically dangerous pregnancy. My wife and I have two children. My wife's pregnancies, and she's written about this at The Atlantic, were extraordinarily dangerous, such that it would not be medically safe for her to be pregnant again, which is a tragedy in our house.

• 26:18Ezra Klein?

  But if something happened, right, it is not safe, but it is not clear. And again, she's written about this, so I'm not speaking out of turn. It is not clear that it would be legal within these states. It almost certainly wouldn't be for her to seek care if she were in that situation. Because when does unsafe become actually a threat to her life, right? When, when does it pass that space? And the providers don't feel they'll be prosecuted. So how much does the extremism here actually rely on, on the loopholes and the porousness of the borders and the outs that blue states have actually offered?

• 26:49Speaker 01

  I think it does both in red states and even vis a vis how much of a backlash there is in blue states. And we've already seen a pretty tremendous backlash to Dobbs. But I think the reason reproductive rights aren't an even more important political issue is because both travel and Mifepristone have been sort of safety valves for people who want to terminate pregnancies and can't do so legally in their own states. But if you can imagine if those borders were no longer porous, sentiment in red states would shift even more. We've seen polling already indicating a shift in terms of more opposition to abortion restrictions in states where they're actually in force, rather than in places where they remain abstractions.

• 27:34Speaker 01

  And I think that dynamic would be amplified even at the national level. I mean, you can imagine the degree of backlash if there was no option to get a legal abortion in New York or California, right? If the only way to achieve a legal abortion was to travel outside of the United States altogether. I think the kinds of efforts we see now proceed by the pro-life movement would be unpopular in a way that's pretty unimaginable now.

• 28:22Ezra Klein?

  Let's talk a bit about how the laws have changed in blue states. What have been the dominant strategies? How has what is happening in blue states or what is legal in blue states changed since, you know, 2016, 2018, 2020?

• 28:37Speaker 01

  So I think the changes we've seen in blue states fall into a few different categories. So some blue states have lifted restrictions that were in place, for example, on who could perform an abortion. So you've seen blue states try to expand the universe of potential abortion providers. And at the same time, I think through doing things like funding abortion funds, which help pay for travel and other things that low-income people need when pursuing abortion. We've seen blue states introduce ballot initiatives, so essentially elevating protections for reproductive rights from the level of state statute, say, to the state constitution, which we've already seen in places like California and Vermont, and we see several

• 29:20Speaker 01

  other blue states pursuing in, potentially, in 2024. And then, you know, Ezra, you've been mentioning, we've also seen a lot of different varieties of shield laws. For example, limits on cooperation with subpoenas or extradition requests.

• 29:37Speaker 03

  I will be issuing an executive order to the Washington State Patrol not to cooperate in investigations of other states that would violate the Roe v. Wade decision. We can share the freedoms that we take for granted here in New York with women all across this country.

• 29:53Speaker 04

  These laws will make New Jersey a beacon of freedom for every American woman.

• 29:58Speaker 01

  And these kind of run the gamut from things that are less legally complicated, like shield laws that apply to doctors and others who are operating in states where abortion is legal, to things that are more legally complex, like shield laws that apply when people are mailing pills to states where abortion is criminal.

• 30:18Ezra Klein?

  Is there a way in which Republicans have a point on this? If you imagine this going the other direction, you think about California, where they have... Criminalized, outlawed all kinds of products they think of as environmentally problematic. Over time, they want to get rid of all cars with internal combustion engines. But you can imagine all kinds of things that maybe they said, we don't like the chemicals in this. We think this is needlessly polluting to the atmosphere. We think this is bad for climate. And, you know, I think people in California would not want red states to simply begin shipping cars with fuel standards that don't meet the California standards. And California would take that to the court and try to argue it down.

• 30:59Ezra Klein?

  So even if you support abortion rights, is there a way in which the right has a point on this, this direct intervention through these shield laws to circumvent the laws being made in Republican states? Is that unconstitutional? Or does that raise some kind of bigger problem that liberals would identify in another context?

• 31:20Speaker 01

  I think it might. I think the real answer in terms of the constitutionality is we just don't know. Because we're seeing, I think frankly, from conservative and progressive states, moves to sort of project power outside of their borders in ways we really haven't seen in a really long time. It's even the question of whose laws apply, right? If California says, we think our laws apply because it was our doctor mailing the pills and we think this abortion is legal. Alabama might say, we think our laws apply because it was our citizen and the abortion happened in Alabama. How do you even resolve that question is not really clear. So, I mean, I think it's fair to say that while shield laws certainly are probably

• 32:01Speaker 01

  the best blue states can do to protect doctors and others from legal liability, they are not really a shield, right? They're not some kind of failsafe protection. And that the closest thing really we have to civil disobedience post OBs is doctors who are taking the riskiest decisions under shield laws, knowing full well that they're operating in a legal gray area. And it's a pretty big mess because it's not just states with shield laws that are doing this. So I think we've seen another state, Missouri, essentially suing a Planned Parenthood, seeking an injunction against Planned Parenthood in the state, claiming in part that Planned Parenthood was breaking the law by assisting minors to travel out of state to places where abortion was legal.

• 32:44Speaker 01

  This is yet another example, I think, of the idea that it was extremely naive, if not dishonest, for the Supreme Court to say removing Roe from the equation will cause things to simmer down and facilitate compromises. Because one of the new battlefields, of course, that's emerged is this question of how do we resolve these conflicts of law when both states claim the power to resolve the question? And how do we resolve the constitutional questions at stake when you are talking about regulating people's speech, regulating people's travel, and just basic questions of fundamental fairness when no one knows ahead of time whose law is even going to control the situation?

• 33:22Ezra Klein?

  Are there good analogies to this kind of thing? One of the possible ones that came to me was there's been a period of strong liberalization of marijuana laws, despite the fact that marijuana remained federally scheduled as an illegal and highly controlled substance. And in the end, it doesn't look like there's been a big federal-state problem over that. But is there something this looks like in recent American history?

• 33:47Speaker 01

  Not really, no. I mean, I think I thought of the marijuana example too. But to your point, there hasn't really been a muscular federal effort to try to stamp out state laws that take a more liberal position on marijuana, nor have there really been interstate conflicts, right? Where you see California or New York with shield laws saying, "We can protect our people even if they're mailing pills to your state." And you conversely have attorneys general in places like Idaho and Alabama saying, "We can prosecute you if you help someone travel to a state where abortion is legal." Like, this sort of conflicts between states, between state and federal government, being this high stakes and this visible, I haven't seen another example of in contemporary US history.

• 34:29Ezra Klein?

  There'd been for some time a very strong effort in the red states before the Dobbs decision to constrict access by basically making it impossible to be an abortion provider. Like, you had said right at the beginning, there's a supply and a demand side of this. Can you talk about the ways in which blue states have been trying to change the supply?

• 34:47Speaker 01

  Yeah, I think blue states have been trying to change the supply, I think, in ways both practical and symbolic. So for really decades, there have been concerns about shortages of abortion providers, in part because of fears of high insurance rates or legal liability, at least nuisance lawsuits, fears of violence or damage to clinics, or even fears caused by the murder of physicians in the past. There's been longstanding concerns of what's called the graying of the profession, right, that a lot of people who perform abortions have been performing abortions for a long time and are older. I think you've seen blue states try to destigmatize the provision of abortion, essentially to say, not only are we going to make it possible for more people to perform abortions, we want physicians

• 35:30Speaker 01

  to feel that what they're doing, if they're performing abortions or other healthcare providers, isn't something that is wrong or deserving of shame, or even viewed as a problem in this state. I think you've seen that push much more visibly since Dobbs, even though I think these concerns about the graying of the profession are much longer standing.

• 35:49Ezra Klein?

  I want to spend a moment on that, because I do think culture matters here. And when you think about the sweep of abortion politics and culture on the Democratic side, I think it's very striking. Joe Biden, who many now know as a very pro-abortion rights president, when the original Roe decision comes down, he opposes it. He is a Catholic Democrat who says this is a very, very hard issue for him, that he is personally pro-life. Over the course of his career, he evolves on that. But you think about the Bill Clinton presidency with the idea that abortion should be safe, legal, and rare. It was sort of the Democratic consensus, might be a strong word, but certainly it's political positioning, the party's political positioning, to say that abortion should be something you can

• 36:31Ezra Klein?

  get, but should not feel good about, right? We want as few of them as possible. And now, I think that Democrats are much more comfortable with the idea that abortion is a choice that makes sense when people choose it, right?

• 36:47Ezra Klein?

  That there's a lot less discomfort with it than I feel like there was, you know, even 15 or 20 years ago in democratic politics. And that also probably changes how people feel about getting into the work, how people feel about going to get an abortion. Do you think this is significant in terms of outcome? Or do you think it's all symbolic?

• 37:05Speaker 01

  No, I think it could be significant, especially because there's some signs that maybe it's a generational shift, that younger Americans who tend to be more progressive on a variety of issues related to, you know, really race, sexuality, and abortion too, may feel more strongly about this. And that's not surprising, because in the past decade or so, we've seen the advent of abortion storytelling, right? Where people who've experienced abortion really detail their stories in ways that are de-stigmatizing. You've seen an attack on things like the Hyde Amendment, which bans Medicaid reimbursement for abortion, was long a subject of bipartisan agreement, has now become a target for Democrats.

• 37:46Speaker 01

  And you've seen too, I think, the idea that abortion is not a standalone issue for Democrats as part of what they would call reproductive justice agenda that includes things like IVF, contraception, childcare, the means to raise children in a healthy environment. And I think all of that has helped to de-stigmatize the issue for Democrats. And de-stigmatizing it is significant, I think, both in the sense that people who have abortions often behave differently when they think that they'll be condemned for doing so. And I think it may affect who's willing to perform abortions in the first place, and what kinds of legal risks they're willing to incur. It's also, I think, significant on access to abortion

• 38:28Speaker 01

  later in pregnancy, particularly when so many of the stories we've been hearing about people with wanted pregnancies, who are experiencing stillbirth or miscarriage, and often life-threatening consequences, are thinking about ending those pregnancies, or already have non-viable pregnancies, quite late in the game, right? Often past week 12. And you're seeing, I think, stigma decline because of that too, because there are real stories being told about who's having abortions late in pregnancy.

• 38:56Speaker 05

  I cannot adequately put into words the trauma and despair that comes with waiting to either lose your own life, your child's, or both. For days, I was locked in this bizarre and avoidable hell.

• 39:13Speaker 05

  Would Willow's heart stop? Or would I deteriorate to the brink of death?

• 39:18Speaker 01

  That kind of storytelling, I think, changes how people view the law, sometimes changes how they vote. So I don't think you can underestimate the importance of that.

• 39:27Ezra Klein?

  You really do see that in polling right now. So there was a November poll by The Wall Street Journal and NORC, which found that 55% of respondents said it should be possible for a pregnant woman to obtain a legal abortion if she wants it for any reason. And that question is important. They've been tracking that since the '70s, and that is the highest it has ever been. So there's been some kind of public opinion change here, where it isn't just that people don't like Dobbs, or it isn't just that people don't like what they see happening in red states, but their actual level of support for a woman's right to pursue an abortion, based on their own estimation of their circumstance, has gone significantly up.

• 40:06Speaker 01

  I think that's right. And I think part of that is attributable to the fact that people are now experiencing the reality of a United States without a right to choose abortion. So prior to Dobbs, I think people's experience of this question really involved abstractions, right? Are you pro-life? Are you pro-choice? Are you for a right to life? Are you for a right to choose? Hypothetically, in an alternative universe, where abortion could be criminalized under all or most circumstances, do you think that would be a good idea? But nobody really saw in tangible terms what that meant, what that meant for people who were seeking abortion, and frankly, for people who weren't seeking abortion, right? People who were experiencing miscarriage or stillbirth, maybe people who were pursuing IVF. And so I think the reality of how a ban would be implemented, what that means in practical terms,

• 40:50Speaker 01

  has probably changed some people's minds.

• 41:17Ezra Klein?

  What federal legislation have Democrats rallied around? And what federal legislation have Republicans rallied around?

• 41:24Speaker 01

  Well, we have federal legislation, which I think in both cases is very unlikely to go anywhere. Democrats, really, pre and post OBs, have been rallying around a law called the Women's Health Protection Act that would rule out a variety of abortion restrictions and bans. Historically, you would have seen anti-abortion groups rallying around, you know, a Life at Conception Act that recognized rights or personhood as beginning at conception, or maybe a federal six-week ban, or a federal 15-week ban, which Lindsey Graham had floated at various points, or a federal 20-week ban. I don't think that the energy on the pro-life side is really in Congress at all.

• 42:07Speaker 01

  I don't think there's a lot of faith that Congress can do anything. And I think that's true on the progressive side of things as well. So I think while there are these pieces of legislation that both sides have embraced, they primarily operate as symbols right now, not as laws that I think anyone imagines going anywhere in the near term.

• 42:28Ezra Klein?

  One reason I think that's true is that any law you can really imagine here is subject to the filibuster. You can't do a big abortion bill through budget reconciliation because it's not a budget bill. And so, nobody's going to have 60 votes on anything like this. Something you will hear from the anti-abortion side is that the law that Democrats have rallied around, to the extent they have a symbolic piece of legislation that Joe Biden has endorsed, that Chuck Schumer has endorsed, that Hakeem Jeffries has endorsed, that is far more expansive than the pre-OB status quo, that it goes much further than Roe does, and that compared to a lot of the bills that Republicans might rally around, if Trump does endorse a 16-week bill, you know, things like that, that it puts Democrats out of

• 43:12Ezra Klein?

  step with public opinion in a way that Republicans are embracing more compromise legislation, and that that is the big opportunity for Republicans politically here. Is there something to that argument, in your view? Like substantively, does what Democrats want to pass go far beyond Roe? And politically, does that create a problem for them?

• 43:32Speaker 01

  There's a possibility, certainly, that Democrats are more progressive on reproductive rights than American voters are. I think polling on some of this has been a little murkier post-Dobbs, for example, on what Americans feel about abortion after 12 or 15 weeks. I think, really, the challenge for Republicans and why that isn't a winning argument, and we have seen some evidence that it may not be a winning argument, when Glenn Youngkin brought this up as a potential winning strategy in trying to help his party take control of the Virginia state legislature.

• 44:03Speaker 06

  A new $1.4 million ad buy from Governor Glenn Youngkin's political action committee is trying to change the narrative on abortion rights.

• 44:12Speaker 07

  Here's the truth: There is no ban. Virginia Republicans support a reasonable 15-week limit with exceptions for rape, incest, and life of the mother.

• 44:21Speaker 01

  It's because it's unclear to voters where the Republican Party is on this. Because at the same time that you have some national Republicans saying, "We're willing to embrace a ban at 12 or 15 or 16 weeks," you have pro-life groups and state lawmakers saying, "That's not nearly enough, and we need to tighten the bans that begin at fertilization that we already have," or that "Any law that permits abortion past a certain point violates the constitutional rights of the fetus or unborn child." So I think voters in Virginia were unsure whether whatever stopping point Republicans were proposing was real, or whether it was, in fact, a kind of step toward a more absolute ban. You saw some of this in Ohio with voters who were somewhat conservative. They felt

• 45:03Speaker 01

  that their options were really between an absolute ban or a sweeping protection for abortion rights. And while they might not have been entirely comfortable with either of those options, they were far more comfortable with the sweeping protection for abortion rights. And that, I think, is the problem for Republicans, that they may not be able to establish with voters that they're actually willing to stop at whatever point they're presenting as the kind of consensus solution. I don't know if anyone believes that, in part because the Republican Party is aligned with the pro-life movement, and the pro-life movement is vocally not willing to stop at that point.

• 45:36Ezra Klein?

  So there's been a lot of reporting about Donald Trump saying privately at least that he thinks maybe he would endorse or he would support a 16-week abortion ban, which is more moderate than what a lot of Republican states have done, more moderate than what a lot of Republicans have done, would be understood, I think, as him sort of moving to his party's almost left on the issue. But even if that were true, and he has not come out and done that, there's still tremendous amount a Trump administration could do that would sharply constrict abortion access even if his stated position was a 16-week ban. So I was reading the mandate for leadership, which is this big, long document released by the Heritage Foundation that is understood widely, given who has

• 46:21Ezra Klein?

  written it, as a kind of guide to how a Trump administration might govern if it comes back into power in 2025. And you look at the section on the Health and Human Services Department, it begins by saying that under Trump, HHS was dedicated to serving, quote, "all Americans from conception to natural death." It goes on to say the goal number one is protecting life, and the secretary should pursue a robust agenda to protect the fundamental right to life. It goes on to say abortion pills pose the single greatest threat to unborn children in a post-Roe world. It says the FDA should therefore reverse its approval of chemical abortion drugs because the politicized approval process was illegal from the start. It goes on to offer a bunch of other ways it can constrict that. And

• 47:02Ezra Klein?

  so you could very much imagine a scenario in which Donald Trump is running for office on something that gets reported as a more compromised position, right, the kind of thing that people were assuming might happen if the Supreme Court got rid of Roe. But actually, in office, through the administrative state, what is happening is a very, very sharp constriction from where we are now, using, you know, rulemaking and agency authority like that.

• 47:29Speaker 01

  Yeah, and that's what I think you see pro-life leaders expecting, right? And ironically, expecting very publicly in the pages of The Washington Post and New York Times, right? So Roger Severino, who served in the first Trump administration in a special department of HHS, has told The Washington Post that he fully expects Trump to use executive power. To limit access to Mifepristone. It's interesting, too, that we're hearing this not just from Roger Severino, but from people like Jean Hamilton, who is one of the authors of the mandate for leadership. Hamilton isn't even really a pro-life figure. He's best known as Stephen Miller's number two in the family separation policy and architect of immigration policy in the first Trump administration.

• 48:12Speaker 01

  But he, too, has outlined similar plans for limiting access to pills and reviving the Comstock Act that would primarily rely on who is going to be the Secretary of Health and Human Services, who's going to be in the Department of Justice, who is going to be in the FDA, rather than who's going to be in Congress or what voters think. And so quite clearly, those are the plans the pro-life movement has in mind. And they're quite clearly hoping, as Jonathan Mitchell, who represented Trump in one of the disqualification cases from Colorado before the Supreme Court, said, I think some of the pro-life movement are hoping that Trump doesn't say anything about this until after the election because the idea that he would prefer a 16-week ban,

• 48:56Speaker 01

  I think, is a lot more politically palatable than some of these potential exercises of executive power that are on the table. And the question of whether they're politically realistic is an interesting one, too. I think some people have pointed to the fact that Trump blames the abortion issue for midterm losses for Republicans, essentially suggesting that it's not his fault or it's not because of his unpopularity. It's because of the position the GOP has staked out on abortion, you know, that Trump is, in fact, more moderate than his party on abortion. And that may or may not be true, but the sort of interesting question is how differently Trump would think or act if he can no longer run for reelection, right? Then what are the incentives? Are the incentives to please the base and explore some of these uses

• 49:40Speaker 01

  of executive power and of the administrative state? Or is it to sort of tack more to the center to please the median voter? And I don't think you can safely assume that Trump would want to please the median voter when he's thinking about his post-presidential future rather than his reelection chances.

• 49:56Ezra Klein?

  And honestly, how much he would even care or know about what is happening in his own administrative state. I mean, it has not been a hallmark of Trumpian governance to have a very deep, personal involvement in the rulemaking happening across the agencies. And I think the whole theory of these people in the second Trump administration is you have a much more... Aligned Trumpist conservative cohort coming to the agencies with a plan from the beginning. And so you have a kind of all-front attack right at the launch that gets a lot more done. But what Donald Trump thinks about some of this, I think it's actually never been a very good guide to what will happen. And then what could a Biden administration do, right? It's not that compelling a pitch to say, elect us and we will try and fail to pass

• 50:40Ezra Klein?

  this piece of legislation. But presumably, they've done a lot of what they can do administratively. I mean, they've been very, very upset about Dobbs and have been very clear on which side of the divide they fall on. So are there major moves they've made that the danger is it would be unmade? Are there major moves they have not made that they could if they came back into power? How do you see the substantive questions here of who wins in 2024?

• 51:05Speaker 01

  So I think there are some limits on what the Biden administration can do to advance reproductive rights. In other words, to go kind of past where we are now, in part because the US Supreme Court is conservative and in part because the filibuster has kind of rendered Congress kind of useless in this regard. But the Biden administration, I think, is still kind of potentially a firewall in terms of what the US Supreme Court may do. You'll hear suggestions that, for example, there's still unnecessary restrictions on Mifepristone, that the FDA could and should revisit those, and there may be steps like that taken in a second Biden administration. But I think that the difference in terms of the potential options for Trump is that Trump would more likely be aligned with the conservative Supreme Court, obviously, than

• 51:49Speaker 01

  the Biden administration would. So I think Trump might be more aggressive in trying to use the administrative state, believing that the Supreme Court would be less likely to stop him than Biden might be. But I think in both cases, what you're really looking at is how executive power could facilitate outcomes that the Supreme Court is going to dictate, or could block outcomes the Supreme Court is going to dictate.

• 52:12Ezra Klein?

  I wonder if when you peer into the midst of the future, you see any path towards any kind of stable equilibrium here. This is by no means a perfect analogy. But I was thinking, as we were talking about this, about the Affordable Care Act, which passes in 2010, is a subject of incredibly heated legislation, right? You know, various efforts to get it ruled unconstitutional, based on the individual mandate, based on different kinds of administrative powers. There's then a series of efforts to gut it or repeal it legislatively. They fail, but there are efforts that work to trim it, right? They kill off the individual mandate through statute. They, you know, change a thing called the Cadillac Tax.

• 52:52Ezra Klein?

  Kind of eventually, it sort of drains out and people settle into a not super happy, but nevertheless, a kind of equilibrium on something that was so dominant in America in public policy and politics for, you know, really over 10 years. Do you see anything like that here? I mean, do you understand this is a moment of kind of maximum furor and then some things are going to get worked out and we'll have a kind of steady state that looks a little bit like X? Or is that not how you imagine this going?

• 53:23Speaker 01

  On the one hand, I'd like to imagine that's possible because I think there are a lot of areas of common ground for most Americans who support, you know, obviously support access to abortion early in pregnancy, obviously are concerned about how pregnant people are treated in various ways beyond the abortion context, obviously support access to IVF. So, I mean, it's not hard to imagine what a policy could look like that most Americans would support. I think the problem in part is that the polarization of this issue always went well beyond Roe. It had to do with how this issue's become yoked to partisan politics. It has to do with the fact that the movements contesting this issue see themselves as fighting for human rights that are more important than the will of the people.

• 54:05Speaker 01

  Those features of the debate tend to fuel these cycles of outrage and tend to destabilize solutions that people would find appealing. And that's even more true in a nation that's as divided. As ours is, and it's more problematic still, I think, because the inability of politicians to solve this problem has a lot to do with the health or lack thereof of the democracy. And the fact that politicians can pursue policies that voters don't like when it comes to reproductive rights without fear of losing their jobs. So it's imaginable to me that there could be a stable solution, but I think it would require more than just votes.

• 54:49Speaker 01

  I think it would require creating a more accountable democracy. It would require changes to things like voting rights or even campaign finance. And so it's possible, but I mean, it may be a little utopian. But I think that at the same time, if that's what it takes, that's really what you're talking about. If you're talking about a reproductive rights agenda, you're not just talking about what the law says about contraception, IVF, abortion. You're talking about what the law says about things like the right to vote, too.

• 55:14Ezra Klein?

  And then always our final question, what are three books you'd recommend to the audience?

• 55:19Speaker 01

  I would recommend Josh Prager's The Family Roe, in part because it speaks to how complicated this issue is in the lived experiences of Americans. I think it's easy at times to get caught up in the law and politics of this and not see the people who live the stories. And that book, I think, really beautifully illustrates that. Another important book, just for understanding, there are two books, I think it's important and helpful to read together. Jennifer Holland did a book called Tiny You: A Western History of the Anti-Abortion, and Daniel K. Williams did a book called Defenders of the Unborn. These books tell very different stories about the origins of the anti-abortion or pro-life

• 56:01Speaker 01

  movement, and I think reading them together is a pretty bracing and provocative experience, and I think an important one, given where we are in abortion politics. And I also really love a book called Before Roe v. Wade that was put together by Lynda Greenhouse and Reva Siegel, and it's primarily a kind of polyphonic collection of primary source documents from before Roe came down. And I think that's a really important thing to experience now, too, to hear the voices of the people who have been involved in this struggle in their own words, rather than to hear them channeled by a historian like me. That also helps, I think, make clear how high the stakes have felt for people on either side of this issue, really from the very beginning, from even the years before Roe

• 56:46Speaker 01

  was the law.

• 56:50Ezra Klein?

  Mary Ziegler, thank you very much.

• 56:52Speaker 01

  Thanks for having me.

• 57:05Ezra Klein?

  This episode of The Ezra Klontz Show is produced by Claire Gordon and Kristen Lynn, fact checking by Michelle Harris with Mary Marge Locker and Kate Sinclair. Our senior engineer is Jeff Geld with additional mixing by Efim Shapiro. The show's production team also includes Annie Galvin and Roland Hu. Original music by Isaac Jones, audience strategy by Kristina Ciemoleski and Shannon Busta. The executive producer of New York Times Opinion Audio is Andy Rose Strasser, and special thanks to Sonia Herrero.