The U.S. faces 'unprecedented uncertainty' regarding abortion law, legal scholar says

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. It's only been a few months since Roe was struck down, ending a woman's constitutional right to an abortion, leaving it up to the states to decide on the legality of abortion and restrictions surrounding it. But the battle over abortion rights continues in state legislatures, state supreme courts and Congress. Anti-abortion activists are pushing for further restrictions with the goal of totally outlawing abortion. Abortion rights activists are trying to find ways to maintain access to abortion. New developments in medical procedures, including medication abortions through pills, have led to new arguments and strategies on each side.

Here to talk about the latest developments, what the future may hold and how we got here is Mary Ziegler, who has written several books about the law, politics, culture and history surrounding the abortion debate. She's the Martin Luther King Jr. professor at the University of California Davis School of Law. Her new book is called "Roe: The History Of A National Obsession." It's about how the abortion debate relates to the way we talk about and legally define liberty, equality, civil rights, women's rights, LGBTQ rights, freedom of religion, body autonomy, and medical care and how we pay for it. Mary Ziegler, welcome back to FRESH AIR.

MARY ZIEGLER: Thanks for having me.

GROSS: So the battleground has shifted to the states, and that's making abortion rights and punishments really difficult to follow because there's so many variations from state to state. So can we start with a brief overview of how many states have totally outlawed abortion, with no exception, and some that have excluded the exceptions of danger to the mother's life or rape or incest?

ZIEGLER: Yeah. So there are about half the states that have a pretty sweeping abortion ban in place. And of those, about 13 have bans that are actually enforced. At the moment, all of those bans, at least in theory, have some sort of exception. There's a handful, for example, like Iowa's, that only make exceptions for life of the mother or pregnant person. Others have very narrow health exceptions, like Texas', that requires some form of permanent bodily impairment.

There are a handful of others that also include other exceptions. But for the most part, there are no exceptions for things like rape or incest. And there are other bills, as I mentioned, that are tied up in the courts. And of course, going forward, that's just a snapshot of where we are now. There're going to be new questions raised about whether states will join that group, whether the states that have bans that are not enforced will be allowed to enforce them, and whether some kinds of really onerous enforcement mechanisms, especially when it comes to abortion pills, fall into place.

GROSS: So in the post-Roe era, are there any states going with laws that are less restrictive than what Roe stated and what Pennsylvania Planned Parenthood v. Casey stated?

ZIEGLER: Absolutely. So there are states, for example, like California, that have declared abortion to be a state - a constitutional right under the state constitution. That's been done both directly by asking voters in places like California and Michigan. It's also been done by state supreme courts in more unlikely places like Kansas and South Carolina. In some of those instances, we don't know if those rights are going to be broader than the ones recognized in Roe. We're still waiting for the details to be filled in.

There are plenty of other states where abortion is legal but not really protected either, where states have simply left in place regulations they already had without either declaring abortion to be a right or banning it. And so we expect to see some of those states become battlegrounds in the years ahead, especially states like Florida that are considered receiving states - right? - that are regional outliers where people are traveling from banned states to get abortions. Florida at the moment has a 15-week ban, but nothing more than that. So even though I want to convey what the world looks like now, I want to emphasize that that's not necessarily going to stay the same for long.

GROSS: So, you know, you've written that after the midterms that we saw how the power of, like, direct voting seems to be more in favor of abortion than going through legislatures.

ZIEGLER: Yeah, absolutely. I mean, it's really striking. And I think there are probably a few different reasons for that. Historically, I think our abortion politics often tended to center on the kind of single-issue voter. So that is to say, someone who cared more about abortion than any other issue and voted on that basis, which meant that sometimes politicians were catering not to the largest number of voters, but to the voters with the most intense passions. Bypassing legislators sort of avoids that problem.

Another, I think, potential issue, which is just how deeply divided we are and how bitter our partisanship is - there are voters who may be very uncomfortable with certain kinds of abortion bans, but who also are not willing to choose a Democrat. So asking them directly up and down, do you want abortion to be legal, again doesn't force them to set aside their partisan preferences to weigh in on abortion. And we have at least some evidence that those hypotheses are right, because since Roe was overturned, there have been six ballot initiatives on abortion. The abortion rights side has won all six.

GROSS: Let's look at the state of Texas, which has a very - like, basically a ban on abortion. I mean, it's illegal from the moment of conception. Who gets punished, and what's the punishment, if a woman does have an abortion?

ZIEGLER: Well, Texas is one of the states that actually has multiple laws that are criminalizing abortion. There was actually some debate for a time about which of those was going to be enforced. But Texas makes abortion a felony punishable by up to life in prison. The primary actor who gets punished under Texas law is the person who provides the abortion. But as is the case with many criminal laws, Texas also has provisions that target people who aid or abet that doctor, people who are engaged in conspiracies with that doctor.

And so there have been at least some Texas prosecutors who suggest that those things would apply, for example, to people who help to pay for abortions, for abortion funds, for people who coordinate travel to abortions and the like. Again, we're kind of trying to fill out the details, but there have been pre-filed bills in Texas suggesting that there may even be criminal liability for corporations that reimburse for travel for abortion. So the scope of this kind of criminal liability is quite broad.

GROSS: How has that aiding and abetting part of the law been used? Has it been used yet?

ZIEGLER: No. I mean, we're still really waiting to see. There have been - there's a kind of almost like playing chicken kind of moment. In part, that's just because in states like Texas, abortion providers have pretty much closed shop and either started delivering other kinds of care or moved out of state to nearby locations like New Mexico. But it's also because I don't know if prosecutors' offices have fully decided how to approach this yet, but we're still waiting to see what these prosecutions are looking like. When I'm telling you kind of what we imagine aiding or abetting to be, it's more a function of what politicians and prosecutors have alluded to, what the law kind of creates in terms of possibilities. But we have yet to see prosecutions in any kind of meaningful way.

GROSS: Now, I read that the aiding and abetting part of the law has been used against two groups that help people pay and travel for abortions in Texas, and that they received deposition demand letters from people tied to anti-abortion lawmakers for information on anyone they had aided or abetted. I don't really understand that. So can you explain it?

ZIEGLER: Yeah. So, I mean, at this point, it's still in an investigatory stage. But the Texas prosecutors were targeting, potentially, abortion funds. Abortion funds kind of emerged because it was very difficult for low-income people to pay for abortions because of the Hyde Amendment, which bans federal Medicaid moneys being used for reimbursement for abortions. So these abortion funds have been a kind of important part of the funding reality for decades. And these demand letters that were sent to the abortion funds in Texas essentially suggested that they had been aiding and abetting a criminal act and demanded, among other things, details about their patients' information. And I think this has been frightening for people who support abortion rights, not only because of what it would mean for abortion funds, which, as I mentioned, are kind of the only way that low-income people have been able to reliably access money for abortion, but also because they suggest at least the possibility that people who have abortions will be somehow swept into the criminal system too. Texas' law, like some other states' laws, explicitly prohibits criminally prosecuting women and other people who can get pregnant for abortion. But there's also a history of people being prosecuted, for example, for taking illegal drugs during pregnancy. So I think there's a fear that that could happen again, especially because there are some extreme elements in the anti-abortion movement who think that women should be prosecuted. Even though they're not a majority at this point, they're more influential than they were, say, five years ago.

GROSS: Maybe this is apples and oranges, but when my father was in the hospital, I had such a hard time getting information about what was going on with him because of HIPAA. You know, I was in Philadelphia. He was in another state. So it's like I couldn't get information about my father in the hospital, but you could get information - you know, but this group can get information about people who help fund abortions, which has to do with a woman's health.

ZIEGLER: Yeah. I mean, one of the things that these demand letters remind you is that if law enforcement gets serious about these kinds of prosecutions, there's lots of information related to reproductive health services that doesn't come from HIPAA-protected sources, right? So - and the abortion funds are not medical providers. If you're on Facebook talking to your friends about whether you're going to have an abortion, that's not protected by HIPAA. If you're using your phone, and you're using Google Maps to get to a clinic, and Google sells that data to various advertisers, there's nothing theoretically stopping law enforcement from purchasing the same data. So in a world where abortion is a crime, it's a reminder of how little digital privacy many of us already have. But those threats to digital privacy, I think, sting in a new way when lots of people are waking up to the reality that what was a constitutional right not very long ago is now a crime in large swaths of the country.

GROSS: So one of the unprecedented things in this Texas law is the $10,000 bounty for identifying anyone who had an illegal abortion. Do you know if that's been used yet?

ZIEGLER: There've been a handful of lawsuits so far. The law's been mostly effective in, again, discouraging anyone from trying to perform an abortion. The few lawsuits that have occurred occurred really when you had someone who was almost sort of performing civil disobedience - Dr. Alan Braid saying, you know, yes, I did perform an illegal abortion, you know, come sue me, because he thought that some kind of resistance to the law was necessary. But the model that this Texas law, S.B. 8, used has been successful in discouraging doctors. And for that reason, as state legislators resume session this month and into the future, they're copying it for other purposes.

So, for example, it's become quite clear that if you criminalize abortion in one state, it doesn't stop people from getting abortion pills on the internet or traveling to another state. And some conservative legislators want to stop that. The problem, especially on the travel piece, is that there's a constitutionally protected right to travel. And there are, of course, states' rights questions as well if you're trying to tell another state what to do with its own policy. So using this kind of S.B. 8-style strategy is appealing to legislators who want to do this because it makes it harder to raise questions about the constitutionality of a law. And it can be very effective in scaring people off or discouraging them from doing something they may have a protected right to do.

GROSS: So getting back to aiding and abetting, the National Right to Life Committee has proposed a model law that would define aiding or abetting an abortion as including speech that, quote, "encourages or facilitates efforts to obtain an illegal abortion." Speech - what's the status of that?

ZIEGLER: Yeah, it's another gray area. And that's - I think, again, this is a wake-up call for the fact that there's already been a gray area when it comes to aiding or abetting in speech. Quite clearly, some speech is protected. Even the National Right to Life Committee's model law acknowledges that, for example, pure advocacy is probably protected. But when something crosses the line from, you know, just simply providing information about abortion to encouraging abortion or facilitating abortion, it's not something that's going to be easy for jurors or prosecutors really to deal with.

Now, it's worth emphasizing that most states - I think no state to date has picked up the National Right to Life Committee's model law. But having said that, there are lots of anti-abortion leaders who've said, quite simply, that they don't need to because they already have provisions making abortion criminal, and they already have laws making aiding or abetting criminal. So they could simply apply those laws to speech about abortion. And I think the real threat is not only that speech will be stifled, but that people will be unable to get any kind of information about abortion at all. And when that happens, of course, the fear is that people will make unsafe decisions about abortion and about their own health because they don't have access to the kind of information they would need.

GROSS: Well, let's take a short break here and then we'll talk some more. If you're just joining us, my guest is Mary Ziegler. Her new book is called "Roe: The History Of A National Obsession." We'll be right back after a short break. This is FRESH AIR.

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GROSS: This is FRESH AIR. Let's get back to my interview with Mary Ziegler, the author of several books about the law, politics, culture and history surrounding the abortion debate. Her new book is called "Roe: The History Of A National Obsession." I was kind of surprised that the South Carolina Supreme Court struck down the law that banned abortion after six weeks, and they used the right to privacy to justify that. The decision said that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable. Were you surprised to read that? And what's the larger meaning of this South Carolina Supreme Court decision?

ZIEGLER: Well, I think the South Carolina Supreme Court decision is, first, a reminder of how important state constitutions and state supreme courts are going to be going forward. Some journalists have referred to this decision as a mini-Roe, I think, both because of the privacy language but also because of what it means, which is essentially that a state that had not only already banned abortion before six weeks, but was considering banning abortion at conception, now would become kind of an island of access in a region with pretty much none. So the stakes of state supreme court elections are going to be extraordinarily high. That's true even in South Carolina, where one of the justices in the majority in the case is going to be replaced soon.

It also suggests that state constitutions themselves are kind of an untapped resource. South Carolina is one of a handful of states that has a more expansive language about privacy in the text of its constitution. And that helps judges who may be kind of on the fence to feel, you know, credible and legitimate in ruling that there is such a right to abortion because they're not just coming up with that out of nowhere. There's language about autonomy or privacy in the Constitution.

But the kind of short answer is that the battlegrounds that we are going to see contested when it comes to these rights are going to multiply in a post-Dobbs universe. There are going to be lots of mini-Roes that may or may not happen depending on the results of those fights.

GROSS: I think it's so interesting that the South Carolina decision is - uses the opposite reasoning of Supreme Court Justice Alito's majority decision when overturning Roe. Alito says the right to privacy isn't guaranteed in the Constitution. It's not in the Constitution. But it's in the state constitution for South Carolina. So the grounds on which Roe was overturned is the grounds on which it was justified in South Carolina.

ZIEGLER: Yeah. And it just points to the fact that some states have consciously developed alternative constitutional traditions, right? And that's by design. So the federal Constitution is supposed to be the floor, not the ceiling. That is to say, you can't provide fewer protections or rights than the federal Constitution offers, but you're totally free to provide additional, stronger rights than the federal Constitution does. And some states have made that choice quite clearly.

And South Carolina, which is not a place you would think of, has broader privacy language in its text. And the state supreme court some time ago, in a death penalty case involving the forced medication of a prisoner, said that that privacy right applied to bodily autonomy and the kind of integrity of these patients' bodies who didn't want this medication. And that created a foundation for the state supreme court's decision, right? So this was a situation where states have chosen to go their own way when it comes to imagining constitutional rights. And that's one of the reasons they're a promising tool going forward.

GROSS: Let's talk about medication abortions, where you take, you know, medication to induce an abortion. There's a lot of questions and confusion around whether the abortion pills can be sent through the mail and who can send them. This month, the FDA, the Food and Drug Administration, started allowing pharmacists to dispense mifepristone, a drug that's used for a medication abortion. So who was allowed to distribute it before the FDA decision? And who's allowed to distribute it now?

ZIEGLER: So the FDA had already, under the Biden administration, made it possible to access mifepristone via telehealth. So mifepristone is still subject to an REMS, which is - and basically much more regulated than almost any other medication without real justification. There's no sense that it's actually dangerous enough to justify this level of restriction. But nevertheless, that's the case. But the Biden administration had lifted requirements that someone needed to be in person when they took an abortion pill that had been prescribed to them.

Now, it still would be necessary for someone to get a prescription, but they could take the prescription at home. The latest step by the FDA means that pharmacies can ask to be certified, which is not the easiest process. But then, once they are certified, they can prescribe - or fill prescriptions, rather, for these abortion medications - you know, brick-and-mortar stores. So the upshot of this is that if pharmacy chains choose to go through this process - and several major chains like CVS and Walgreens have signaled that they intend to do that - that people in states where abortion is legal will be able to get abortion medication either via telehealth or at brick-and-mortar pharmacies as long as they have a prescription.

It isn't really that much of a game changer because you still need a prescription. And I think as importantly, it doesn't change the state of affairs in states where abortion is criminal. Obviously, CVS and Walgreens and other pharmacies have said they're not going to fill prescriptions in states where abortion medication has been criminalized.

GROSS: Well, let me reintroduce you. If you're just joining us, my guest is Mary Ziegler. She's written extensively, including several books, about the history, politics and culture of the abortion debate. Her new book is called "Roe: The History Of A National Obsession." We'll be back after a short break. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Mary Ziegler, the author of several books about the politics, law, culture and history surrounding abortion. Her new book is called "Roe: The History Of A National Obsession." She's the Martin Luther King Jr. Professor at the University of California, Davis School of Law.

There's another issue I want to ask you about surrounding pills through the mail, and that's the Comstock Act. And this is an 1873 act that outlawed sending obscene material through the mail. And it also defined contraception as being obscene. That was revised in 1936 in an appeals court decision that allowed doctors to distribute contraceptives across state lines. So how are anti-abortion activists using the Comstock Act now?

ZIEGLER: Well, so anti-abortion activists are essentially saying the Comstock Act was never repealed. And not only that, the appeals court decision that you referenced was not a U.S. Supreme Court decision. So they're saying essentially we, the anti-abortion movement, read the Comstock Act to say that it's illegal to mail abortion pills anywhere full stop, for any purpose. And so that would be tantamount to saying abortion pills themselves are entirely illegal because all abortion pills that any patient in the United States takes have been in the mail in some way or another, right? Abortion clinics are not manufacturing their own pills. They're purchasing them from drug companies. Pharmacies are getting them in the mail. People having telehealth procedures are getting them in the mail.

For the moment, this argument isn't going to go anywhere, likely because the Justice Department just put out a memorandum saying that for the time being, the federal government interprets the Comstock Act to only apply to people who are mailing abortion with criminal intention - that is to say, you know, deliberately trying to violate laws against those abortion pills, which would make it much harder to prosecute anyone under the Comstock Act. But anti-abortion activists who are invoking the Comstock Act are really playing the long game.

They're hoping either, one, you know, through lawsuits, to get arguments about the Comstock Act before the Supreme Court, which is very conservative on abortion and may agree with anti-abortion activists' interpretation of the Comstock Act. Or, two, to just bide time until a Republican is in the White House, and a Republican DOJ takes a different interpretation of the Comstock Act. So we're seeing this argument crop up in lawsuits. We're seeing it crop up in local ordinances passed by small towns in blue, red and purple states that mention the Comstock Act. So it's become a kind of central part of strategy in some quarters in the anti-abortion movement.

GROSS: So if a president is elected who opposes abortion and chooses his own attorney general and head of the FDA, these - what we're talking about now pertaining to the Comstock Act and sending medication through the mail, that could all be overturned and made illegal, right?

ZIEGLER: Absolutely. Yeah. And we've seen Republicans like Ted Cruz telegraph that they would like the FDA to remove abortion medication from the market entirely. And it's not inconceivable to imagine that if Donald Trump or Ron DeSantis or some other Republican were elected in 2024 that the FDA would do just that. Just as it's not inconceivable to imagine that the Justice Department, under a Republican president, could say that the Comstock Act does apply to all abortion pills, mailings and pretty much eliminate access to the pills that way as well.

GROSS: I just want to intercede here and say, if this sounds confusing to people, it is so confusing. There are so many laws and so many attempts to change laws and overturn laws. It's kind of a mess. It's impossible to understand what's going on, you know? And the more we talk, the more it occurs to me how confusing it is for anybody to know what their rights are and what the nation is looking like and what direction we're heading in and what the future might hold.

ZIEGLER: That's absolutely right. And I think some of that is a feature, not a bug, because when you have really steep criminal penalties, a lot of people, if they're not sure what is and is not OK, may make the decision to not come close to crossing the line, right? They may be scared away from exercising a right they do, in fact, have. But I think we're at a moment of, really, almost unprecedented uncertainty in the United States when it comes to abortion. That's true of the laws. It's true of the way abortion care is delivered. It's true, frankly, of the strategies that are being pursued by both movements.

I think the kind of old hierarchies in the movements on both sides were shaken up by the Dobbs decision and the political developments of the past couple of years. And so it means, when we're kind of imagining what the future of abortion rights in the United States is going to look like, that really no one knows. And the best you can do is sort of sketch out different alternative possible futures.

GROSS: There's a lot of questions surrounding the legality of traveling from a state where abortion is illegal to a state where it's legal. How's that shaping up so far?

ZIEGLER: Well, so far, as far as we know, it's legal because states haven't intervened to do anything about it. But that's likely to change as states go back into session in the weeks and months ahead. There are pre-filed bills in places like Texas and Missouri that try to put a stop to out-of-state travel for abortion. For the most part, based on the pre-file bills we're seeing, states are not directly saying we're going to criminalize travel or allow people to be sued for traveling. They're going more kind of indirect routes, where they're either allowing kind of SB8 style bounties against people who help others travel for abortion, people who maybe perform abortions for people from states where it's criminal, but again kind of focusing on doctors and aiders or abettors.

What's unusual about that, obviously, is that one state usually can't tell another state what to do, right? So essentially, this would be - you could imagine a woman from Mississippi travels to South Carolina, where there's now going to have to be legal abortion, and has an abortion. And then Mississippi says, well, we're going to prosecute the doctor in Mississippi for this abortion. Usually, we don't do things like that. We haven't done things like that really since before the Civil War, when there were fugitive slave laws in place.

So it creates all kinds of uncertainty about whose law would apply. Would it be Mississippi's or South Carolina's in that hypothetical? Would it be constitutional for Mississippi to tell South Carolina doctors what to do? Or would that raise all kinds of red flags constitutionally? We don't know any of the answers to that. And again, the one thing we do know is that they would most likely land before the same U.S. Supreme Court that reversed Roe v. Wade, which is why state legislators are willing to try things out that are unprecedented in recent history and, you know, potentially constitutionally questionable as well.

GROSS: In the meantime, there's probably a lot of doctors who are afraid to perform abortions for women who live in states where abortion is illegal because we don't know yet how that would be handled legally. We don't know yet if they will be punished.

ZIEGLER: Yeah. I mean, so far, what we've seen is progressive states responding with what are called shield laws, essentially saying, you know, if you try to prosecute our doctors or other people like abortion funds who are helping people get abortions, we're not going to comply. We're not going to extradite those people. We're not going to comply with subpoena requests. We're going to allow them to sue you for what we see as frivolous lawsuits. So, again, we don't really know how those conflicts are going to play out.

But so far, what we've seen states like Massachusetts, California and others doing is essentially, as much as they can, writing protections into their own laws for people who are still performing abortions or helping people having abortions on the theory, I think, that it would also be very - maybe not unworkable, but difficult for doctors to have to figure out where all their patients are coming from, right? That's not usually something that doctors are obligated to do. But, again, I think there's still a lot of uncertainty, and I imagine there's still a chilling effect for doctors in states where abortion is legal. Because even with these shield laws in place, there's no guarantee that protection's going to be perfect.

GROSS: Let me reintroduce you again. If you're just joining us, my guest is Mary Ziegler. Her new book is called "Roe: The History Of A National Obsession." We'll be right back after a short break. This is FRESH AIR.

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GROSS: This is FRESH AIR. Let's get back to my interview with Mary Ziegler, the author of several books about the law, politics, culture, and history surrounding the abortion debate. Her new book is called "Roe: The History Of A National Obsession."

You've said that after Dobbs, social conservatives set their sights on the First Amendment as a tool to chip away at reproductive rights, and it's been working. What do you mean?

ZIEGLER: Well, I think - we spoke earlier about cutting down on access to information. Because if you're opposed to abortion, it's very difficult to stop people from getting pills in the mail or traveling out of state. But if people don't know what their options are - in other words, they don't know where the clinic out of state is, they don't know how to get abortion pills in the mail, or they don't know how to use them safely or how late in pregnancy it's safe to do so - some people, quite simply, aren't going to have those abortions.

And so I think the effort to crack down on speech has not just been about advocacy, it's been about access to information and online as well as offline. And we've seen crisis pregnancy centers pivot to online as well to discourage people from having abortions. So there's been a kind of concerted effort to, I think, both provide people with information the anti-abortion movement thinks is accurate and others don't as well as prevent people from accessing, you know, kind of basic information about what medication abortion involves or what kinds of services might be available in nearby states.

GROSS: But it also seems there's attempts to punish people for speech. I mean, there's a case in Nebraska where law enforcement obtained a warrant to search a teenager's Facebook messages in which she told her mother that she wanted to end her pregnancy. And the mother is being prosecuted on charges of helping her daughter abort the pregnancy by giving advice about abortion pills. So on what grounds is a mother being prosecuted for having a private conversation with her daughter?

ZIEGLER: Again, it's - right? - this sort of line between aiding and abetting or conspiracy and speech, right? So the idea that prosecutors in Nebraska are pursuing is that this mother crossed the line into actual assistance and that that's illegal. And you would expect to see - I mean, this case is a little unusual because it's an abortion that would have been illegal under Nebraska later in pregnancy. But I still think it's precedent-setting in the sense that you're going to see other prosecutors look at what just, to your point, is private conversations and say that's enough for aiding and abetting.

It's also telling because this is, you know, some of the most private conversations you can imagine - right? - between a parent and a child. This is not, you know, a stranger, an Uber driver or something. And so these are conversations that are not only speech, but they're private speech. So there are privacy implications here as well, both given the kind of monitoring of Facebook, the private nature of the conversation. And I don't think we're going to see - this won't be the last example of this we see by any means.

GROSS: What are some of the most radical anti-abortion arguments you've heard since Dobbs?

ZIEGLER: Well, I think it's been striking that there are some people, including people in positions of power, but also a growing wing of the anti-abortion movement called the abolitionists, who do openly call for the punishment of women. That had been so rejected by the mainstream of the anti-abortion movement for so long and, I think, still is to some extent. You still see larger anti-abortion groups rejecting that.

But you see a growing presence in state legislatures and some state Republican parties essentially saying, you know, if - at best saying, we think women shouldn't be punished only if they don't understand what abortion is. But sooner or later, with enough education, we have to believe that they understand. And if they do understand, then they should be punished and potentially quite severely, right? I mean, I've heard some people in the movement suggesting that the punishments for abortion are not enough and should maybe include, you know, even the death penalty.

Again, I don't think most people in the anti-abortion movement are looking to execute women today. But I think the Overton window is shifting and that - is shifting in ways that makes it possible to imagine more advocacy for the punishment of women especially because it'll be easier to do that than regulate doctors and other people out of state.

And also, I think, more of an open hostility to chemical contraception - I've seen that in the movement in recent years, too. I think until quite recently, that was seen as a big third rail for abortion opponents because people who were supportive of abortion rights would use that to say the movement was anti-sex rather than anti-abortion. But in recent years, I've seen emerging, very similar arguments about contraception that we long saw made about abortion, whether that's the argument that chemical contraceptives, like the birth control pill, are unsafe for women and harm their mental health and fertility, or arguments that, in fact, common contraceptives are not contraceptives at all, but abortions.

So I think there's a new front opening there that will be - that would be quite extreme in its impacts if the movement pursues that angle.

GROSS: Let's talk about what Congress is doing on both sides. Just a few days ago, all the Republicans in the House voted for a bill requiring medical care for babies born alive after abortion. And all but two Democrats voted against that law. It's called the Born-Alive Abortion Survivors Protection Act. Are many babies born alive after abortion?

ZIEGLER: No, because the standard of care - well, I mean, most abortions, I think 93%, according to the 2020 CDC data, occur in the first trimester. And the remainder, which occur mostly in the second trimester, are - the standard of care for second-trimester procedures is dilation and evacuation, which pretty much precludes a live birth. So this is, I think, much more a symbolic measure than it is, you know, anything that's going to make a difference on the ground.

There's some, you know, ambiguous language in the statute that seems to suggest that palliative care would be required. Under certain circumstances, that could have a chilling effect if the bill passed, which - of course, it doesn't have any chance to pass given that Democrats control the Senate. But it's a pretty modest bill especially given that all this is, is House Republicans sending a message about what they would like to do. This is not a bill that's ever going to see the light of day.

GROSS: What are Democrats trying to do to uphold the right to abortion?

ZIEGLER: Well, I think federally, Democrats are not really going to be able to do much. There are still going to be efforts to promote the Women's Health Protection Act, which was the kind of bill of choice that President Biden and the Democrats had been trying to pass while they had theoretical control of both chambers of Congress. Now that the House is under Republican control, obviously, that's not going anywhere. But I think that bill is still floating around in the ether should there be a change in control of the House in 2024 or down the road.

So for the most part, I think, when Democrats are thinking strategically, they're looking either at things the Biden administration can do on its own - so, for example, there could be even more done to lift FDA restrictions on abortion medication - or they're looking at, you know, other kinds of state-based strategies like ballot initiatives, which have been pretty successful to date.

GROSS: Well, let me reintroduce you. If you're just joining us, my guest is Mary Ziegler. Her new book is called "Roe: The History Of A National Obsession." We'll be right back. This is FRESH AIR.

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GROSS: This is FRESH AIR. Let's get back to my interview with Mary Ziegler, the author of several books about the law, politics, culture and history surrounding the abortion debate. She's a professor at the University of California, Davis, School of Law.

I want to ask you about your book "Roe: The History Of A National Obsession," your new book. You started this book before Roe was overturned. And you wrote the introduction after the Dobbs decision, which cancelled a woman's constitutional right to an abortion. The premise of the book is that how we talk about abortion reflects our views of liberty, equality, civil rights, women's rights, LGBTQ rights, freedom of religion, freedom of speech. So what you wrote before Roe was overturned about that and what you've written - what you think since Dobbs overturned Roe, is that the same in terms of how we talk about abortion reflects our views of all these other issues?

ZIEGLER: I do. I think - and I think it's also a signal of how Roe really matters because one of the things, I think, that was really striking to me is that, you know, most people, including me, tend to think of Roe as a symbol of how our rights come from the Supreme Court. And the Supreme Court gets to be the kind of final decider about what those rights are connected to, what they mean, who has them. And then, if you look at how people talked about Roe and all the meanings they assigned to Roe, almost none of them had anything to do with what the Supreme Court said in 1973 - right? - which had a lot to do with doctors and medical paternalism.

So I think the story of all the ways we've kind of reinvented Roe and really why we care so much about Roe, which is not self-evident because part of Roe was overruled in 1992 - scholars across the ideological spectrum were critical of Roe. And yet it remained this kind of cultural icon. I think it still does. So the question I think was, you know, why? Why Roe? And the answer, I think, to me, was that it was always a place where people could project their own ideas about things like liberty and equality or racial justice or religious liberty or even the role of the judiciary in our democracy and the legitimacy of the Supreme Court.

You know, it was a place where popular constitutionalism was happening - right? - where - a reminder that if you want to have rights in this country, you don't just look at the federal courts. You look at state supreme courts. You look at ballot initiatives. You look lots of other places. Because ironically, that's what we were doing all along even when we were talking about Roe, which is a Supreme Court decision. So I think that in a way, the book was sort of a hopeful thing for me even as the court was dismantling Roe because it was a reminder to me that the Supreme Court cannot put an end to our conversations about our rights and that often, you know, people outside of the court have shaped how the court understands it's more - its own decisions more than the court has been able to tell people what to think about their own rights.

GROSS: You know, in your book, you say that the early anti-abortion legislation in the 1820s focused on prohibiting the sale of poisons that were marketed as *abortion drugs. So would you elaborate on that, because that's really different than a, you know, moral, ethical argument about, you know, personhood and the rights of the fetus and how abortion is, you know, equated with murder? This is like, it's dangerous to the woman because these drugs really are poison. They're toxic.

ZIEGLER: Yeah. Yeah. Well, it took a while. It was really not until, you know, the 1840s and 1850s that you began to see some of the more familiar arguments about abortion being immoral. Early on, there were concerns that drugs that were being marketed for abortion were poisons. And some of them were poisons or had poisonous ingredients. There were also concerns about women dying during illegal abortions. There were lots of sort of salacious, high-profile stories in newspapers in the early first part of the 19th century about - usually it was, you know, younger women seduced by men who are married or who are older, and then taken to people to have abortions and then dying during those abortions.

So some of the early laws were focused on protecting women from abortion, not protecting unborn children. It wasn't really until the American Medical Association got in on the act that you began to have arguments about protecting fetal life or treating abortion as immoral. And even then, you weren't talking about constitutional rights for fetuses, right? You were talking about just, you know, a morals law, like any other criminal law, that a certain act should or shouldn't be allowed because it's wrong. That was more the rhetoric of the 19th century.

GROSS: As a supporter of abortion rights, this is probably a very disturbing time for you. But you've been chronicling this time and chronicling the years leading up to it. And you're a professor of law. And there's all these complicated legal decisions going on now. It must be, for you, a disturbing but undeniably interesting time as you witness a new chapter of abortion and legal history.

ZIEGLER: Yeah. It's been very surreal. I mean, and I think it's important - I mean, I try to have empathy and respect for people with whom I disagree. But it has been strange. I remember, in the days after Dobbs came down, you know, as you can imagine, I was very busy. I was talking to lots of reporters and lawyers and just trying to process what happened. And my husband, who is very proud of me, you know, said, let's sit down and watch you on this news special on what happened. And I had just been going, going, going.

And then, watching the news special, we got about 2 minutes into it and I started crying because it was upsetting to me. And so I think that, in a nutshell, I mean, when I can kind of take a step back, it is this sort of unprecedented, uncertain moment in a way that - I mean, I hope we'll be good, right? I mean, I hope that there are ways we can think about what women and other pregnant people deserve that are better than the ones we've had before. I think there are - I would hope there are ways that people who oppose abortion can think of protecting fetal life that don't necessarily and exclusively involve criminalizing things. I mean, I would hope that maybe through uncertainty, something hopeful can happen. But it's fascinating and also disturbing. And kind of toggling between the two is very confusing at times for me.

GROSS: So this Sunday actually marks the 50th anniversary of Roe v. Wade, which was overturned last year. What are you thinking about as we approach that anniversary?

ZIEGLER: Well, I think I'm mostly thinking that this is far from over. Even Roe itself is far from gone. You see President Biden talk about codifying Roe. You see lawyers talking about winning mini-Roes. So it's kind of, Roe is dead, long live Roe. But I'm also thinking that the story of our abortion politics has always been one about more than the Supreme Court telling us what to do. It's been, you know, grassroots movements. It's been ordinary voters. It's been legislatures. It's been state courts. And that's going to continue to be true. So I think we're at the very beginning of something very confusing, but also something that is far, far from over.

GROSS: Mary Ziegler, thank you so much for talking with us and coming back to our show.

ZIEGLER: Any time. Thanks for having me.

GROSS: Mary Ziegler is the author of the new book "Roe: The History Of A National Obsession." She's the Martin Luther King Professor of law at the University of California, Davis School of Law. Tomorrow on FRESH AIR, we'll talk about the new Republican-controlled House of Representatives, the new speaker, Kevin McCarthy, Republican plans to investigate President Biden and the new subcommittee to investigate the, quote, "weaponization of the federal government," which will be headed by Trump ally Jim Jordan. My guest will be Catie Edmondson, who covers Congress for The New York Times. I hope you'll join us.

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GROSS: FRESH AIR's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham, with additional engineering today from Al Banks. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Sam Briger, Lauren Krenzel, Therese Madden, Ann Marie Baldonado, Thea Chaloner, Seth Kelley, Susan Nyakundi and Joel Wolfram. Our digital media producer is Molly Seavy-Nesper. Roberta Shorrock directs the show. I'm Terry Gross.

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