Pod Insights The Ezra Klein Show We’re on the Precipice of a Post-Roe World About this episode A few weeks ago, the Supreme Court let stand a Texas law creating a system of vigilante legal enforcement against anyone who participates in an abortion after the point of fetal cardiac activity. In effect, Texas’ law bans abortions after about six weeks, which is long before many women even know they’re pregnant. And soon the court will hear arguments on a Mississippi abortion ban that will give the justices the chance to overturn Roe v. Wade directly.
We may be on the precipice of a post-Roe world.
But what does that actually mean? Leslie Reagan is the author of “When Abortion Was a Crime” and “Dangerous Pregnancies.” Reagan has done groundbreaking historical work to reveal what happened when U. S. states began criminalizing abortion in the early 19th century. There are lessons in our past that should inform our future, if we’ll listen.
This is also a particularly personal episode for me. My partner is 33 weeks pregnant. This is our second pregnancy. Both have been unusually dangerous and physically damaging. For the state to say that it will force any people to undergo that against their will is a remarkable assumption of power over individuals. Reagan and I talk about what that means, what the state is saying about the personhood, or lack thereof, of those who become pregnant.
Mentioned:
"Behind the Texas Abortion Law, a Persevering Conservative Lawyer" by Michael S. Schmidt
Book recommendations:
How All Politics Became Reproductive Politics by Laura Biggs
Killing for Life by Carol Mason
Radical Reproductive Justice, edited by Loretta J. Ross, Lynn Roberts, Erika Derkas, Whitney Peoples, and Pamela Bridgewater
You can find transcripts (posted midday) and more episodes of "The Ezra Klein Show" at nytimes.com/ezra-klein-podcast, and you can find Ezra on Twitter @ezraklein. Book recommendations from our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.
Thoughts? Guest suggestions? Email us at [email protected] .
“The Ezra Klein Show” is produced by Annie Galvin, Jeff Geld and Rogé Karma; fact-checking by Michelle Harris; original music by Isaac Jones; mixing by Jeff Geld, audience strategy by Shannon Busta. Special thanks to Kristin Lin.
Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:05 Ezra Klein? I'm Ezra Klein and this is the Ezra Klein Show.
0:23 Ezra Klein? So I've struggled with how to open the show because this is an episode today at the intersection of what is happening in my country and what is happening in my life. And I want to be honest about that. I don't in general try to have distance in my journalism. I don't think distance is great, but I particularly don't have distance today. I just don't. A few weeks back, the Supreme Court let's stand a Texas law creating a network of vigilante legal enforcement, I think it's the right way to put it, against anyone who participates in an abortion after the point at which fetal cardiac activity is detected, which is usually
1:03 Ezra Klein? around six, seven weeks, often before people even know they're pregnant. It is a law that functionally makes Roe dead letter in Texas. It foretells the Supreme Court gutting Roe in another case it's going to hear next session. At the same time, all this is going on, my wife is nearly 34 weeks pregnant. And that's a particularly important and in some ways scary number for me. A few years ago, my first son, my son, was born in an emergency delivery at 34 weeks. In that pregnancy, my wife was in and out of the hospital with some conditions they could diagnose and some they couldn't.
1:47 Ezra Klein? She endured a level of daily agony and physical damage, physical damage. Pregnancy isn't easy even when it goes well, but nobody should have to hurt as much as she did. It was a kind of pregnancy that at another time neither she nor my son would have survived. And then at 34 weeks, we went in for a checkup and we ended the day with a child born at less than four pounds, who needed to be in the neonatal intensive care unit for the first three weeks. If you listen to the show, you have a sense of how much I adore my son, how to steal a line from Gilead, how I delight in the very fact of his existence. He lights the world for me. But it wasn't an easy beginning. This year, we got pregnant again, and we
2:32 Ezra Klein? hoped it would be easier. We hoped it wouldn't all happen again. And some of it may not, but a lot of it has. Without going into too much medical detail, that's a story for my wife to tell if she wants to. But I will say that seeing my partner just go through this is, and for a second time, it's really, really, really hard. She's in really severe discomfort all the time in a way that is not normal, that is not just pregnancy, and that really no one should have to endure. And she is tough and determined in ways I would never be if it were me. But it is still just brutal to watch. But we chose it. We
3:13 Ezra Klein? chose this knowing this might happen. And if we have a healthy child and a mother too, and she's healthy, I'll be so relieved. But there will still have been a tremendous cost. But still, it was one we chose. But what does it mean to not choose it? To be told that because birth control failed, or because you did something that maybe you didn't fully think through, that that's gone, that choice is gone for you. We talk about the miracle of life, the wonders of pregnancy. But there is a violence to pregnancy, a constant
3:55 Ezra Klein? lurking and often realized threat. Pregnancy is dangerous. It kills, it scars, it traumatizes. And I say all this, not because I really want to have this conversation on my show. I haven't really mentioned this until now, but because these are the questions these bills raise. This is what some states, at least, are saying they will force, actually force people to go through, that it will be the state's decision, not the person's. That once there is something you can call a heartbeat, the other heartbeat in that body ceases to have agency. That that body has been effectively taken into the state's
4:36 Ezra Klein? control, conscripted, no matter the cost to it, no matter the cost to that person. That is a profound statement for the state to make. I'm not here to tell you the question of when a life with rights begins is an easy one. It's not. I'm not here to tell you that the exact way we decide which week you can have an abortion and which week you can't, that that's easily done. It's not. I struggle with that question, too. But at the same time, when do the rights of the mother end? How did that become the easy question, the one so many politicians feel so comfortable answering? My guest today is Leslie Reagan.
5:21 Ezra Klein? She's a historian at the University of Illinois at Urbana-Champaign and author of the books Dangerous Pregnancies and When Abortion Was a Crime. We talk about the Texas bill in detail, but also the backstory of abortion regulations in this country, how we used to think about the moment at which a life with rights took hold. And then, of course, more recent questions about gender and abortion, about people who do not identify as women who become pregnant, the stakes for men in this conversation, men who often feel this is not their conversation, what it is we are saying about the state's power over people. So this is a bit of an intense episode, but I think an important one.
6:03 Ezra Klein? As always, my email is [email protected] . Leslie Reagan, welcome to the show.
6:12 Speaker 01 Nice to be here.
6:14 Ezra Klein? So let's begin with SB8, the Texas law that the Supreme Court recently let stand. Very simply, what is it?
6:23 Speaker 01 SB8 is a strange, unusual law, like many others that have been passed in very restrictive states. It says that abortion after seven weeks, when a heartbeat, fetal heartbeat could be detected, that it bans abortions around six to seven weeks. What's unusual about this is that rather than having state officials, prosecutors and police investigate and prosecute violations of the law, it is written expressly so that no state officials are allowed to enforce the law. Instead, it's private individuals who are supposed to do the enforcement. And they are invited, basically invited by
7:03 Speaker 01 the state, to investigate anyone who they think may have been involved in an abortion past this six-week stage of fetal development, or anyone who has aided and abetted in such an abortion, or who has intended to perform or assist in an abortion at that stage. So it privatizes enforcement and really invites the anti-abortion movement's volunteers, who we already know are extremely busy in harassing patients and providers, to take this on, find people and bring lawsuits. And then if they bring a lawsuit and they
7:43 Speaker 01 succeed in front of a judge, the person who's been named as breaking the law would have to pay damages of $10,000 minimum, plus attorney's fees. On top of that, if they lose, they bring a lawsuit and, oops, they were wrong, actually, that doctor wasn't doing anything of the sort. There's no penalty for what we tend to call frivolous suits, although this would not be frivolous because it is intended to shut down abortion completely in Texas.
8:14 Ezra Klein? This law and its survival at the Supreme Court has made me feel like I must not understand something very fundamental about constitutional law. Because Roe and Casey, the two fundamental constitutional cases around abortion, they have not, at this point, been overturned. Constitutionally, you can't outlaw, as I understand it, there is a right for a woman to be able to choose to get an abortion in the six-week. So how can it be constitutional to sue someone for having provided an abortion in the six-week? I understand
8:55 Ezra Klein? the state of Texas is not the enforcing agent, but you're suing against the criminalization of something that is supposed to be constitutionally protected. What crime are these suits alleging? How does this work?
9:09 Speaker 01 They are deliberately violating the constitutional protections for abortion, for women's and other people's rights to privacy and sexual freedom and procreation. There's many illegal laws that are passed all the time that violate the Constitution in terms of Roe and Casey. They're challenged, they're brought to court, and they're struck down because they violate those constitutional protections. And the idea behind this is there is nobody who can bring a suit challenging the law. Because usually, you have to have someone who's going to be hurt, and the person who's doing the job of law enforcement is the state of Texas, the Attorney General. And so, a case would be brought against the Attorney General.
9:53 Speaker 01 But in this case, there's no one to sue yet. And that was their thought. You can't really follow the usual rules, and so, judges can't strike it down. It's a game. It's a trick. And the Supreme Court, to our shock, but also in some ways, not so surprising, given who's on the court, decided that they would not enjoin it until the case had been heard. No one's heard anything about why this law is unconstitutional, or why Texas believes they can have such a law. But the Supreme Court allowed it to go forward with the conservative majority.
10:32 Ezra Klein? I always want to make sure I'm not being too precious about the Supreme Court. Because we give it a mythology that is fundamentally ridiculous. David Dayen, the editor of The American Prospect, was talking on Left, Right, and Center on an episode about this, I heard. And he made the point that if California passed a law where it said, "We're going to say it's illegal to own guns," which is any kind of gun, "but the state of California will not be the one who enforces this law. It's going to be anybody who notices a gun, or thinks you might have a gun, and then they can sue you. And if you do have a gun, you've got to give them $10,000."
11:16 Ezra Klein? My belief that the conservative Supreme Court would say, "Oh, that's very clever legal reasoning. We just can't do anything about it," is zero. Zero. So I just want to note that I'm open to you pushing back on this, but this just seems to me to be the Supreme Court saying, we want this law to take effect and we've decided to buy into some very bizarre reasoning in order to give ourselves a loophole to achieve the outcome we prefer. Now, I want to say fairly for conservatives listening to this, who feel the Supreme Court has done this on progressive things, I think that is true. I just think the Supreme Court is a political institution that does this all the time.
12:00 Ezra Klein? But it's just, on the one hand, you can get really up in your head about the legal trickery of this, and on the other hand, it just seems very simple to me. They found a way to get the outcome they wanted.
12:10 Speaker 01 I agree with you completely, and I do take it as a sign, which we were anticipating, that this court, as now constituted with, you know, three extremely conservative justices appointed by Trump, because, as he promised, they were against Roe versus Wade and anti-abortion, that this is a signal of their willingness to completely gut Roe versus Wade and the companion decision, Doe versus Bolton, and also Casey. But I don't know that they will actually say that that's what they're doing.
12:51 Speaker 01 I mean, I think that's one of the really important things to pay attention to is, this may be allowed, and they may also, when they look at the Mississippi case, which is a case that bans abortion at 15 weeks, which is, again, pre-viability, which has been retained as constitutional in every case, that before viability, women have a right and the state can't regulate otherwise. They may seem to preserve Roe versus Wade, and yet allow it to be so thoroughly gutted that it doesn't exist. And I've always thought that should be one of our big concerns, is that if people believe
13:30 Speaker 01 it still exists, they won't really recognize what a disaster it is for some women in the country. And Texas has certainly brought this to the forefront, I think, in people's minds, that it could happen.
13:44 Ezra Klein? To some degree, wasn't this already happening in Texas? There have been a number of laws in Texas. They have been mostly framed as an effort to protect women from dangerous abortions. And the way they have tried to do that is put functionally impossible regulations on clinics that provide abortions. Just very strange, small things about hallways and everything else. And you're basically trying to regulate these clinics out of existence and use a fig leaf that we just want them to be safe. In a world where those laws can exist, in a world where this law can exist, this was going to be a question I have for you.
14:25 Ezra Klein? Does what the court officially does on Roe actually even matter anymore? Because they are giving conservative states a pathway to say, this is how you make abortion functionally inaccessible, because you put anybody who would provide it under so much illegal and regulatory risk that they cannot really provide it?
14:46 Speaker 01 Well, first, I agree that in many ways, this was already happening in Texas and mostly the southern and plain states, that there are so many different restrictions. If people aren't familiar, there are things like waiting periods for 24 to 48 hours. Minors have to get, notify or get permission from parents. And if they don't do that, they have to talk to a judge. Imagine a 13-year-old or a 15, a 17, anyone having to go to a judge and explain their life, their sexuality, their reproduction, and ask, is it okay with you if I go get an abortion? So, pretty horrific. So, yes, this has already been extremely restricted. It is especially hard for poor women and women of color.
15:30 Speaker 01 And of course, mothers or people who have spouses who object to what they're doing, they need to keep it a secret.
15:37 Speaker 01 On the question of does it matter what the court does next? I think it does matter because it's already bad and that needs to be changed. And some states have been passing new laws that expand reproductive rights for comprehensive reproductive health legislation, which is great, and writing Roe into state law. But this, you know, if the court makes a decision like that, then it will immediately make abortion illegal in about half the states in the country. So that would be worse.
16:14 Ezra Klein? Something you mentioned a few minutes ago is that one way that the legal approach of this has been unusual is to pass a law that at this point, the courts can say, well, nobody has standing to challenge it because who are you going to sue? But at the same time, what's unusual about this law is who it gives standing to to sue in the first place. So to just spin out a scenario here, you could have a woman in an abusive relationship who has been beaten and raped by her husband, leaving her pregnant. She runs from him and she gets an abortion.
16:56 Ezra Klein? And if he finds out about it, he can sue under this law? Or he could have his mom sue under this law? Or the person who works with him and is sympathetic to him? Or an activist in a full other state can sue under this law? Virtually anybody can sue under this law and possibly win $10,000 in damages and more in legal fees and maybe interrupt the process entirely? The who it gives standing to here, it's really unusual. It's managed to reverse the normal way this would go. It's given standing to everybody to sue, but then when the law got challenged here, somehow the court said, well, there's nobody who is standing yet to sue the law's constitutionality,
17:38 Ezra Klein? even though now everybody has standing to sue any person who in any way abets an abortion.
17:43 Speaker 01 It is pretty incredible. You know, I was thinking of really the anti-abortion movement, which is extremely well organized and, you know, immediately started trying to take tips online. They've got attorneys ready to go and they've spent years, you know, harassing people and collecting names and phone numbers and license plates in order to follow patients or providers at their homes. But this also is designed for personal abuse beyond that political personal abuse in allowing really anyone who has a grievance against anybody, because anybody could be perhaps intending
18:27 Speaker 01 to be involved in an abortion and there is no penalty if they're wrong. And of course, defending yourself against a charge, whether it's right or wrong, is expensive. They are allowed to file it anywhere in the state, so people are going to have to travel potentially, pay for lawyers and their reputations can be damaged and none of that will be paid for if, you know, the people who brought the case lose. So yeah, it is really vigilante justice that allows almost anyone, and it doesn't have to be someone who lives in Texas. It really can be anyone to bring a lawsuit.
19:04 Ezra Klein? I've been thinking about how to talk about this in this show. So to not be indirect about it, my wife is in the third trimester of our second pregnancy and I've talked to her about talking about this, this is with her consent, of course, but she has very far out on the bell curve of dangerous agonizing pregnancies. Tremendous danger to her, the kind of thing that you wouldn't have survived in another medical age.
19:34 Ezra Klein? Of real danger to our children. And that she's just in a daily unusual level of agony that is really hard to watch. Like that is not something I've seen with my partner before. And it's really, really hard. It's really hard to see. And we chose this. We didn't know that the second, this was true in our first. We hoped it wouldn't be true in our second. It turned out to be. And so I've kept thinking, as I've looked at this law, not about, this is an abstraction, but about her, about us, and about the idea that, you know, if our birth control failed at some point in the future, that the state of Texas at least is saying that her pain,
20:16 Ezra Klein? suffering and danger account for nothing, like actually nothing. And it in fact counts for so little, so truly little, that anybody, anywhere, anyone, should have the right to drag her into court to defend her decision, if such a thing was made, to protect herself. I mean, I love my son. It's the, I mean, I would give my life for him in a second. He's the most important life in the world to me. It's not about loving my children, but I also love my partner. I feel like you can talk about pregnancy and abortion and, you know, people think about a normal situation, but, but a lot of pregnancies are really dangerous.
20:56 Ezra Klein? And it just seems to me that what the state is saying about the citizenship and worth of someone who is pregnant is chilling here, that they just have functionally no worth. Like the moment you get pregnant, you stop in any way being yourself. I feel like when you really look at it, it's really annihilating to a person's sense of self.
21:23 Speaker 01 Yeah. Thank you for sharing the situation in your family and your partner. It's intimate and it is frightening to think about this law or how, what they're really saying about people and about any pregnant woman, any pregnant person, is that they are completely irrelevant. And as you said, their suffering, their pain while carrying the pregnancy, in her case, during childbirth, just doesn't matter. But I think you're really right. It is a brutal kind of law to think that.
22:01 Speaker 01 We can force people to carry pregnancies to term and deliver, regardless of their own health, their bodies, their views, their needs. They really are nothing. And it is a sickening statement about how they think about people. And there's certainly plenty of evidence of people who they've seen on the line protesting in front of the clinic later come in and also ask for an abortion because they need it in their own life. So one is not caring about the danger and the pain that you were referring to, but also completely not understanding that if someone carries a pregnancy to term and delivers
22:46 Speaker 01 a baby, healthy baby, it didn't just happen because the law said so. It happens because they decided to do it. And so that's the other side of what I find so upsetting about this kind of thing is the complete, it's a ratio on both ways of what pregnancy really means.
23:26 Ezra Klein? So I want to zoom out into your broader history of abortion and I'll start with the fundamental question, which is simply, how old is abortion as a human practice?
23:35 Speaker 01 It's been around forever, since there were human beings who had sex. Abortion has existed. There's evidence of, you know, the different kinds of things people could use in antiquity to try to prevent pregnancies and to end them. And we certainly know throughout modern history that abortion has always been used.
23:58 Speaker 01 And this was true in the US, too. It certainly existed and was practiced in colonial America. This is not something that didn't exist when the founding fathers wrote the Constitution. And in fact, there were no criminal abortion laws when the founding fathers wrote the Constitution. It was legal under common law, brought over from England. What was against the law was abortion after quickening. Prior to that, which would be in maybe the first three, four months of pregnancy, there was no regulation of attempts to bring your menses back, as they would have referred to it in the 18th and 19th century, or to induce a miscarriage, or what we call an early abortion.
24:42 Ezra Klein? Can you say what the word menses means?
24:44 Speaker 01 Menstruation.
24:45 Ezra Klein? It does just mean menstruation.
24:47 Speaker 01 Yeah, because the thinking about the body is, if it's in balance, then you're healthy and well, and if it's out of balance, or if there's evidence of being out of balance, something's wrong and you need to adjust and fix that. And so, of course, menstruation is a regular cycle, and if suddenly a woman doesn't have it, that's actually a sign of something's out of order in her body. And so, you need to get it back and bring it back into its normal operations, normal order. And so, there were domestic guidebooks that were published, you know, over and over and
25:26 Speaker 01 over for decades that you could get, that included recipes and how to bandage a wound, and also included these kinds of herbs and teas for bringing the menses back. So it's very common knowledge.
25:39 Ezra Klein? And can you also define, because it's going to be important in a second, the quickening?
25:44 Speaker 01 Yeah, so quickening, it's not a term we hear much now, but what it meant was, it's a very important moment in terms of morality and in terms of law. And quickening is the moment where a pregnant woman can feel movement inside of her. And then she knows, oh, there's life inside and I'm carrying a pregnancy. And at that moment of quickening, which might be in the fourth month, there's many examples of women trying various methods to get their menses back. And when they feel quickening, they, oh, I have a life, I stop. And then they deliver a baby later on. To interfere after quickening...
26:26 Speaker 01 Was also against the law and people could be prosecuted for that and were some of the time.
26:32 Ezra Klein? So just to put a fine point on this, going back in time, back in this colonial period, if you took a ward of patience eight weeks after conception, that would be understood as bringing back the menses, that the, what had happened is your period was gone and you had done something to bring it back. You had, you had restored the, the body's flow. A couple months later, when you're showing and you're feeling a, a baby moving, it would be understood as an abortion. That would be after the quickening. But so you have this period that in this regime is controlled by the woman's sense of what is going on in her own body. It is about what she feels, not about what the state thinks has happened or an ultrasound. It is about,
27:16 Ezra Klein? it is driven by her interoception of her, of her pregnancy.
27:21 Speaker 01 That's exactly it. The woman knows her own body. And when she feels and recognizes a life within, a pregnancy, that's when she knows that she's carrying a life and she will give birth and that she, if she had been attempting to bring her menses back, that she, she can no longer do that. So yeah, it's a very important moment and it is within the woman's own sensations and what she recognizes. And there's no set time really for quickening. And of course, as we know, right? If people have been pregnant before,
28:05 Speaker 01 they may recognize things earlier than if they haven't been pregnant before. But even so, it is by her call of when quickening is.
28:14 Ezra Klein? You have a very interesting vignette in the book where you quote, a doctor is one of the early anti-abortion crusaders. And he says, he kind of mocks this. And he says, that's just a sensation. And some woman who never feels sensation, deliver a baby and that baby is still alive. And something I was thinking about reading that is the tendency to say something like, the quickening is just a sensation, but that there is something more. Objective about some of the other measures like you could say fetal heartbeat is just a measurable sensation. You could say all kinds of the ineffable question of when
28:53 Ezra Klein? a fetus develops rights, develops a sentience, a humanity. That's a very hard question. And in this conversation, I am not pretending I know precisely the answer to it. But it does seem to me we've moved from, in a very profound way, a regime based on the pregnant person's sense of their own body and what was happening inside of it, to regime where the medical profession, in concert with the political and legal professions, are defining something as scientifically true, when it is just the same kind of judgment call.
29:32 Speaker 01 I think that that's right. And the doctor you referred to is one of the major organizers to make abortion a crime in the United States. Dr. Horatio Storer, who was a specialist in gynecology and obstetrics at Harvard, professor there. Yeah, it is, again, the scoffing at women and their knowledge and their interests is also incredible. And also, I think, matches exactly what we're seeing right now with the Texas law and the anti-abortion movement is the complete disrespect for women and for their moral knowledge and views,
30:12 Speaker 01 and instead replacing it with a male medical profession, male and female politicians, and technology. Because that's what they're relying on now is technology.
30:24 Ezra Klein? Can you talk a bit about the role of technology? Because the ultrasounds we have, there are laws about certain kinds of ultrasounds. People now have to see in some states before they can get an abortion. Can you talk a bit about how technology has been used to change and redefine this conversation?
30:46 Speaker 01 I mean, I have to say first, of course, that the technology itself isn't doing this, right? It's how, as you said, how it's been used and how it's been interpreted. And
30:57 Speaker 01 Initially, um, an amniocentesis, right? They were looking for problems, fetal defects, that might result in disabilities. And so they were used really for that, to check if they were healthy. And potentially, of course, what it meant was if you get an amniocentesis that gives you information that there's something that looks wrong genetically, or if you see something in an ultrasound that doesn't look right. The purpose that they served was to allow people to abort the pregnancy in order to avoid having a child with whatever it was that they found, right? So some of those might be, we can see that it will not survive even before you deliver,
31:42 Speaker 01 but that was what the purpose of those were. Now, what you are referring to is politicians taking a technology that is used to check on the status and health of a fetus, an embryo, or used to look into the health of the pregnant women, both, right? For other information, taking that and using it really in this punitive manner to force women to think the way they want them to think about pregnancy and abortion. The laws that have been passed is requiring doctors to provide an ultrasound, usually
32:27 Speaker 01 read a script about what it is that they're seeing, which are images based on sound waves. And the purpose is to say, you know, this is a baby and what you're doing is infanticide. That's the whole point. And then, you know, there's ultrasounds that are external, and there's also the vaginal ultrasounds, which is forcing women to undergo a sexual assault. You know, if it has no medical purpose other than a political purpose to force them to do something they don't want to do. There are a couple of states that require these transvaginal ultrasounds.
33:06 Ezra Klein? One thing you'll hear and you track this in this conversation is that these laws, not the Texas one we're talking about, but a number of these others, from the ones regulating how abortion clinics are built and maintained, to the transvaginal ultrasounds, are motivated by concern, not just for the fetus, but for the mother's health and safety, including mental health. But I want to put some numbers to this conversation. Women are about 14 times more likely to die during or after giving birth to a live baby than to die from complications of illegal abortion. And I should say, by the way, Texas has a really quite bad maternal health record. It's even worse for women of color. And then there's
33:50 Ezra Klein? this remarkable study, the Turnaway Study, which was able to look at women who wanted abortions and either got them or refused them and could follow them for years. And it found, it's not just the physical health, that it's physical health, it's self-reported physical health, and then it's the mental health of women who were able to get abortions when they sought them. In all cases, that was significantly better than if they were refused the abortion they wanted. So from the evidence we have, it seems that it's not just that pregnancy is dangerous, but not being able to get an abortion you think you need, that definitely seems to have negative effects on physical health and on mental health. And I didn't mention economics here because I'm a bit uncomfortable with what
34:33 Ezra Klein? is happening in that part of the conversation. But I mean, that's huge, too. There's a huge penalty economically for someone who's a child. There's just no doubt about that. It takes years and years to recover the job and income status. So I don't want to load the deck on this question too much, but I would like to hear you talk a bit about the role the constructs of women's mental and physical health play in this conversation. This is about women's mental and physical health, but can you, I guess, talk a bit about the role those constructs play in this conversation?
35:03 Speaker 01 I'm glad you brought up that these laws are often passed and the discussion about trying to recriminalize abortion is framed in this way of concern for women's health and safety. That's rather new. And I mean, it's fascinating because it grows out of the sense that, wow, feminists succeeded on this. Their bodies and health actually mattered. And also using the women's health, the feminist women's health movement, which took on the way physicians practiced, the way they wouldn't controlled childbirth, the way they didn't explain what they were doing, or they gave orders and expected them to be followed, all of these kinds of things. And the main thing the women's health movement
35:48 Speaker 01 focused on was illegal abortion. I mean, there was agreement across all kinds of groups that that was an enormous problem that had to change because of the way women were treated, but also because of the public health problem. But the reality, of course, and there's also been lots of sort of disinformation that's been produced and pushed for decades by the anti-abortion movement, that abortion will cause sterility, it will cause breast cancer, and it will also cause psychological damage that women cannot recover from. Of course, as you just pointed out, the evidence is quite the opposite on all of those counts. Abortion is extremely safe in the US. Legal, safe abortions are extremely safe. Childbirth
36:32 Speaker 01 is dangerous, and it is phenomenally worse for women of color. So that's a major problem that really does need to be addressed. And Texas is spending their time on passing laws that will damage people. As you said, we have the evidence that being forced to carry a pregnancy that somebody really doesn't want to or feels they are unable to damages their health and is physically dangerous. And I agree with you on the issue about economics. And yet, we have to admit that a large proportion of the people who need abortions need them
37:14 Speaker 01 because of their income, or because of the kinds of jobs they have, or because they're in school. In the US, since we don't receive a universal benefit that we know we can live on financially and automatically have housing and food, and people, even though they're not supposed to be fired if they're pregnant or have children, we also know that this can happen, right? But it's very hard for people to continue with their education if they have a baby. We don't have childcare. And
37:46 Speaker 01 For many people, they are mothers, they already have children, and they see that they cannot possibly survive on their income or the benefits that they receive. So it is a driver in terms of having abortion, and it's not fair. That said, I would also say, even if all of the services and everything were available, that I personally believe should be, we would still need abortions.
38:11 Ezra Klein? Yeah, and I want to clarify what I meant earlier when I pushed that a little bit out of the data I was using. The reason I push that to the side is that I think that there is a sincere argument being made by people who are against abortion, when they talk certainly about the fetus. And to some degree, it is meant sincerely when they talk about the mother. I don't believe the economic argument is sincere. On the one hand, I think it would be reasonable to say that if you believe abortion is murder, that the fact that it might be good for your income in a couple of years, I understand why you would wipe that to the side. But the flip of it is that if you believe abortion is murder,
38:53 Ezra Klein? and you know, and you know, because we know that many, many, many abortions are driven by economic need, that the absolute first thing you would do is reduce that economic need, not criminalize abortion and drive women into underground abortions. And so the reason I don't really buy the argument is because I don't feel it's a real one. Texas could have spent, you know, the last decade becoming the most natively friendly society in America. They could have made sure that anyone having a child had every support they could possibly want. If it is so profoundly important that it's worth the state telling you you must,
39:37 Ezra Klein? then certainly it's worth the state. Paying you, certainly it's worth the state supporting you. Certainly it's worth the state making sure there isn't an economic penalty in your life, but they don't. And frankly, if you compare Texas to California, its supports for families are terrible. Just ridiculously bad. And so I just don't buy it at all. And I think it gives away something in the, in what's really happening in the conversation, because you could do a lot of things to reduce the number of abortions that are not about criminalizing, but the energy in the conversation is about criminalizing, not building a natal society where the last conversation you have is, okay, having tried in every possible way, we could remove the need for anyone to ever need to have an abortion they didn't
40:22 Ezra Klein? want to have on some level, like now we need to talk about the legality of it. But that's not what happens in, in these states.
40:55 Ezra Klein? Let me ask you about something from the anti-abortion side of the argument, because I do think it's important to take this seriously, which is the other side of this argument is that abortion is murder built around the idea in this respect, not most people who have complicated feelings later on in pregnancy, but when you're talking about something at seven weeks, built around the, the idea that life begins at or extremely near after conception. You show that that has not been a highly popular argument for most of American history. That isn't how people saw it. So can you talk about a bit about the history of that? When, when did we get to the life at conception part of this, having a, a, a strong polarity in the debate?
41:38 Speaker 01 Well, as you saw when we were talking about quickening, that assumption is that life begins at quickening, not at conception. It begins at the moment that the fetus is moving and kicking and showing it has life. And it is fascinating, if you look at some religious history on this, that this is not how pregnancy and abortion has been thought of. Even the Catholic Church has not always been against or organizing against abortion. Certainly, not all Catholics subscribe to the Church's views, but it wasn't until 1869, around the same time that abortion
42:18 Speaker 01 was being criminalized in the United States, that the Church condemned abortion. And about 30 years later, it condemned therapeutic abortion. And therapeutic abortions were abortions performed legally by doctors to preserve the woman's life or her health. And it wasn't until the end of the 19th century that the Church, I guess, noticed that and condemned it. So that's important for people to realize. The Protestant churches also always accepted abortion when pregnancy threatened a woman's life, which is what the medical profession believed and was written into the nation's laws. Every law in the country that made
43:03 Speaker 01 abortion from conception on illegal had an exception that allowed doctors to perform abortions for medically indicated reasons. In Illinois, it was called for bona fide medical reasons. But that meant that doctors would be the ones who had the legal power to make that decision, to preserve the pregnant woman's life or her health, and that it was medically and thus legally and morally justified. When I do research on this, it's not that absolute that only doctors make these decisions, because doctors work with their patients. And especially in the 19th and early 20th century, they're very sensitive to what their
43:45 Speaker 01 patients think and need. And they're not as distant as we might imagine. The Jewish tradition also always recognized women's life as primary. The Mishna, code of ancient Jewish law, made that very clear and said that
44:01 Speaker 01 When childbirth threatened a woman's life, her life takes precedence over its life. So I mean, you see consistency here in that it's tabooed, but had not been criminalized across the board until the 19th century. Societies and religious thinking about life and when it begins changes over time. And we, we really do see that it changes in political views and particularly in, I guess, the status of women. And in the United States, when women were actively organizing and politically engaged and coming into the public and, you know, mostly talking white, middle-class women,
44:42 Speaker 01 were not staying in their private sphere, but were going into politics and fighting for things like abolition or temperance or fighting against prostitution, which means criticizing male behavior, male sexual behavior. That is when abortion became a political issue and became something that the states turned into a crime. So it's, I see this as very much part of moments when the women's rights movement, what we now know as feminism, is strong and is visible. And there are changes in gender and changes in terms of the racial balance in the country and power.
45:25 Speaker 01 That's when abortion has often become an issue.
45:30 Ezra Klein? One thing you'll hear on the center right of this conversation, I'll call it, is the view that Roe and the Supreme Court's intervention in this took this out of the realm of politics where perhaps a series of compromises could have been reached federally or in different states, such that there was a better balance of interests. Roe has been extraordinarily galvanizing for the right and for the Christian right in particular, and that some of the difficulty of the issue and the radicalization on the issue that you're getting at there reflects the disruption of the political process and that the healthy thing about overturning Roe would be that it would return this to
46:16 Ezra Klein? politics where different interests could be balanced against each other. How do you think about that argument?
46:23 Speaker 01 I have a lot to say about that, but I do have to say that at the moment, that's a very convenient thing for the Republican Party that uses this to their advantage to say when also we know that the Republican Party has more power at the state and national level than it should if it were based on the popular vote. And by that, I mean, the way the Electoral College works, two senators for every state regardless of population, and the gerrymandering, and of course, now, the efforts by states that are dominated by the Republican Party at their level of the legislature and governor are busy trying to make
47:05 Speaker 01 it extremely difficult to vote. And it's very targeted towards taking away the voting rights of African Americans, Latinos, seniors, the people they think will vote Democratic. So to say that that would be great to put it at the state level is the pretense about the way our voting works and the differences among the states. So that's one thing. Of course, the long discussion about constitutional rights and civil rights from the beginning are is, you know, civil rights are not something we get to vote on. We don't get to decide that I don't like you and your religion, so you don't have any freedom of religion or freedom of speech. Our rights in law, our right to know why
47:48 Speaker 01 we've been arrested and brought to court before we're imprisoned are based on fundamental rights in the Constitution and the Bill of Rights. Because if we put those things up for a vote, a lot of times, we wouldn't have any of those rights.
48:03 Ezra Klein? One of the assumptions often in the language that gets used in this conversation is to really gender the politics of it. And I want to take a moment and complicate it a bit. One issue here, of course, is that there are people who become pregnant who don't identify as women. But another is that women have not been and are not today a single monolithic force on abortion. Since roughly the 70s, around 20% of women have said abortion should be legal in all cases. A lot of the big pro-life groups or anti-abortion groups are, of course, led by women. And then, of course, there are men who sometimes get left out of this conversation as having an interest in it. They're seen as wielding power in the medical or political establishments. But of course, men vote. They vote more Republican, which means on net,
48:47 Ezra Klein? they're voting for more anti-abortion politicians these days. But they also are fathers and have partners and so on. And so I'm just curious how you think about the gendered politics of abortion and what we get right about it and wrong about it when we discuss it.
49:05 Speaker 01 Thank you for bringing these up. Everyone who gets pregnant, has babies, might need an abortion, is not a woman as we understand it, right? They're trans people. This is a real change to recognize that at all. And certainly in terms of historical research, there would be no way to track that. Anyone who is pregnant, giving birth, they are identified as and seen as a woman in the records. Doesn't mean there weren't trans people, but they're not identifiable. So that is a very interesting wrinkle in the assumptions that we have. And of course, not all women think the same thing or do the same thing. And you're right. I would
49:45 Speaker 01 say all men and all women have an interest in the legal status of abortion. So I should go back to that. But in terms of not all women are monolithic. No, they're not. And I tend to want to keep the discussion about the law and medical availability of a procedure that should be available and safe, separate from people's beliefs and religious views. I mean, I think this is something that we lose sight of frequently in the US. And of course, the new right has tried to push in that direction, is that the law is not supposed to reflect the church.
50:27 Speaker 01 And when you have such a range of attitudes about something, that clearly shows that we are not in agreement. This is a religious debate. And we have to protect people's autonomy, their moral perspectives, and allow them to follow their own conscience. So having abortion legal does not interfere with churches who believe it shouldn't be, or who believe it's wrong, or with individuals who do not want to do such a thing.
51:08 Speaker 01 And it doesn't interfere with their ability to try to persuade others that abortion's wrong, that life begins at conception. They can still do that, because we have freedom of religion and freedom of speech. But using the law to enforce a perspective where there is so much, there has always been a range of opinions, and in fact, a long, long history of abortion being completely acceptable. I think that's using the law in the United States in a way that is unconstitutional, really. In terms of men, yes, men are actually very interested and involved in abortion in a variety of ways.
51:49 Speaker 01 19th century feminist movement always sort of talked about voluntary motherhood. They supported voluntary motherhood, and by that, they meant, of course, that becoming a mother, having a baby, has to be voluntary. And they were primarily thinking of the relationship in marital bedrooms, that men were known to force themselves upon their wives sexually, and that that would make pregnancy involuntary. And so a lot of what they were actually trying to do was change that relationship and power in bed, and make it so that women could say no to their husbands, and get men to accept that.
52:32 Speaker 01 And that abortion, when it was in the press, was tended to be presented as it was a, a single unmarried woman who'd been seduced and abandoned. And that's why she would need an abortion. And so in that kind of story, too, the interest that a man would have in abortion is because he's seduced and abandoned, and he's abused, exploited somebody. And an abortion serves his sexual interests. So those are sort of the history of how men have been talked about in terms of abortion, or they're performing them. I think, though, the reality, if we look at the history, men and women together, in couples, brought down fertility in the United States, dropped it in half over the 19th century.
53:17 Speaker 01 Abortions, often men might not be, if we're talking the 1900s, 1930s, women might not necessarily talk a lot with their husbands about it, but husbands understood and agreed. And it was really more in these cases of unmarried couples where they needed to keep it a secret and to not have sex become visible, where they talked about it. Men were very, they were the ones who found the name of a provider, raised the money, brought her, so they were very much involved. Now, in the 20th century with Sanger, the birth controls movement, you know, the big change really was to talk about that women could be as sexual as men.
54:00 Speaker 01 And then, I really think in our modern period, that abortion is important for all of us because this right to make a decision about your body and sexuality is to the benefit of everyone. It actually is underlying the Supreme Court decisions that found that criminalizing sodomy was unconstitutional, that gay marriage had to be allowed, that, you know, allowing only heterosexual couples to marry was unconstitutional. This decision is about sexual freedom and autonomy in relationships that affects everybody.
54:39 Ezra Klein? As we come to a close here, I want to ask about the practical consequences of if Texas-style laws become the norm in many states. Your historical work has looked at many different regimes in which abortion was legal or illegal in varying ways. And of course, what ends up happening is more complicated than what is written in the law. So from a historical perspective, recognizing we can't purely predict the future, what do you think this law will do? What choices will people make? Will it bring down abortions? Will it move them underground? What do you expect to happen in a practical, on-the-ground way in places that adopt this kind of legislation?
55:22 Speaker 01 The United States has already been through a century of illegal abortions, so we do have some evidence of what the consequences are. But of course, 2020, 2021, the 21st century is not going to be exactly the same. But making safe abortions hard to find, we know that it will have a variety of consequences. For people who have connections, who have money, who know other doctors, they'll be able to find abortions, even if it means flying out of the country. That was true in the past, that will be true now. It'll be more difficult, but doable.
56:04 Speaker 01 The people who will be most hurt are the ones who don't have much information, don't have access to it, don't have money. And we will see struggles to raise the money, to go out of state or go to Mexico. We will see people who go into business to provide abortions. Some of those will be knowledgeable and safe. Some will be trying to help, but may not be as good at providing abortion as others. And so there's likely to be injuries as a result, and some will do their own. Now, what's different is we do have medication abortion. Maybe 40% or more women who get abortions use medication abortion, two pills, they
56:49 Speaker 01 take it at home. So those are going to be available over the internet, and there will be feminist organizations and medical organizations that are trying to provide that. If they use pills, they're inducing a miscarriage. And if they have heavy bleeding, or if they have a fever, or if they get scared and go into the emergency room, they will be interrogated by the medical staff. They may have police come in to investigate. You know, the Texas law isn't saying that police is involved yet, but we're talking about like if half the states, it becomes illegal. And that is what they did for the hundred years of when abortion was a crime was if
57:34 Speaker 01 someone alerted the police to the coroner, they came in and they interrogated women about where did you get this? Why did you do this? Why did you have sex? And would also threaten to prosecute them or threaten to provide no health care at all unless they told the truth. So I think we'll see a lot of that kind of intense policing of women, but we'll also see new things of policing partners and businesses and what we've seen with Texas of trying to bring in the hundreds or thousands of kind of voluntary law enforcement people, which absolutely did not exist in the way that I, I think we could see it in the future.
58:12 Ezra Klein? I think that's a place to end. Always our final question, what are three books that have influenced you on this issue or just elsewhere that you could recommend to the audience?
58:22 Speaker 01 Well, there are many books, so it is a hard choice. But let me suggest for your listeners, Laura Briggs, How All Politics Became Reproductive Politics, From Welfare Reform to Foreclosure to Trump. Carol Mason, Killing for Life, The Apocalyptic Narrative of Pro-Life Politics, which is really excellent for seeing how racism is part of this movement and how it became so violent. And then there are a number of books where Loretta Ross is the editor, author, give you one, The Radical Reproductive Justice Foundation Theory, Practice, and Critique. She's really one of the people who created the reproductive justice movement, the phrase,
59:07 Speaker 01 and those are really important writings.
59:09 Ezra Klein? Leslie Reagan, your books are When Abortion Was a Crime and Dangerous Pregnancies. Thank you very much.
59:16 Speaker 01 Thank you.
59:28 Ezra Klein? The Ezra Klein Show is a production of New York Times Opinion. It is produced by Jeff Geld, Rojai Karma, and Annie Galvin. It is fact-checked by Michelle Harris and original music by Isaac Jones. Mixing by Jeff Geld.
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