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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. I want to read you something from the data site FiveThirtyEight. You know FiveThirtyEight? They crunch numbers on things, like poll numbers. They aggregate polls and describe what the poll numbers taken together might mean. There's a lot of sports data on FiveThirtyEight. They look closely at elections. Some of you know the site, Nate Silver's site. FiveThirtyEight is a reference to the number of electoral votes in a presidential election, and they look closely state by state.

It's a data-crunching site. This is the last place that I expected to find some analysis related to the growing illegality of abortion in America, but I'm just going to read from FiveThirtyEight and you'll get why this appears on a data site. It says, "Giving birth in the US is already far more dangerous than in other wealthy countries. Ending the protections of Roe v. Wade, the 1973 decision that established the constitutional right to abortion, could make it even more so. Multiple studies have found that the states that already have the tightest restrictions on abortion also have the highest rates of maternal and infant mortality.

That correlation stubbornly persists after researchers account for some of the other differences between states like racial demographics and healthcare policy. Some researchers think that abortion restrictions are part of the reason why pregnancy and childbirth are so much more dangerous in the US." Then it continues, "There are ways abortion restrictions could kill people, both directly and indirectly. Scientists say these correlations point toward dangerous disparities in healthcare access in the US, not just in terms of who can get an abortion, but also in terms of who can get preventative care while pregnant or even before." It continues, "The US is a uniquely dangerous place to have a child."

That struck me as another thing that's important to talk about with respect to the restriction of abortion rights in the US that it contributes, and there are stats to back it up and studies to back it up. Maternal mortality in the United States, and that's especially disproportionately true among African Americans.

Back with us now is Nancy Northup, president and CEO of the Center for Reproductive Rights, the lead litigator in the Mississippi abortion rights case that has now wound up in the complete reversal of Roe v. Wade. Where does the Center for Reproductive Rights go from here? Legally, the end of Roe is not the end of the story. Politically it is certainly not the end of the story. Individually, where does anyone with an unwanted pregnancy go from here? Nancy, welcome back to WNYC. You came on when the case was argued, and thank you for coming back on even though the case was lost. Hello.

Nancy: Thank you, and good morning.

Brian Lehrer: I guess the first thing to say is your worst fears were realized in this decision. Did you expect it all along?

Nancy: It was troubling when the Supreme Court took the case in May of 2021 because it had been struck down by both the trial and appellate court below, so there was no reason to take the case. It'd been settled law for 50 years that a pre-viability ban on abortion was unconstitutional. It was troubling when they took the case, but we felt that there was such massive support from so many sectors for following the rule of law and for the health and justice and equality reasons to support Roe v. Wade. Amicus briefs were filed by leading economists, by the American Medical Association, other medical associations, public health associations, all across athletes.

Olympic athletes from all sectors of life saying that this is a really core individual personal Liberty. Troubling questions at oral argument, the draft leaked opinion, but nonetheless, it was still stunning to read it last Friday in black and white, and just to witness this extraordinary act of judicial activism. It's the first time that the Supreme Court has stripped away a personal liberty right, and consequently, we're already seeing the harms and they're coming fast and furious.

Brian Lehrer: I think of the emotional reaction that people are having to this as kind of like when somebody dies after they've been really, really sick and in decline, and everybody knows they're going to die. Then at a certain point, everybody knows they're going to die any day, but then when it happens you're still in shock. It was like this since the Alito draft. Everybody knew this was going to happen. Maybe not 100% to what degree, but it seemed like this was happening. That went on for weeks and weeks and weeks, and here it came and it happened, and everybody is still in shock even though we were expecting it.

Nancy: I think that is a sound analogy with the exception that there's no peace. What we are thrown into now is just absolute chaos as we are seeing states across the nation do what we expected them to do, which is waste no time in moving to enforce their trigger bands which were designed to spring into effect if Roe was overturned. Trying to revive pre-Roe bans. Trying to lift injunctions on other unconstitutional six-week bans and others. There's no time to grieve because we are back at it.

Center for Reproductive Rights filed a slew of lawsuits yesterday and we did get an injunction in Louisiana, so the attempt to ban abortion at the moment is stayed in Louisiana. Planned Parenthood got an injunction in Utah, but there are many states right now where abortion is unavailable, and it's just a travesty.

Brian Lehrer: Let's talk about Louisiana because at least we can say that this case of yours is an actual victory of sorts just in these few days after Roe was overturned, having to do with Louisiana's trigger law that was going to take effect. What exactly happened there?

Nancy: Well, Louisiana actually passed three different trigger laws, so that is part of the chaos and confusion. Abortions had stopped but we went to court to file for an injunction, and that was granted yesterday. This is in state court. One thing everybody should be aware of is that-- They remember from high school civics if they're not an attorney, that of course we have both federal protections in our federal constitution, but also every state has a constitution. We have state laws as well as federal laws. This is filed in state court in Louisiana challenging all three of their trigger bans on vagueness, and that it's impossible to tell which is in effect and thus why exceptions exist.

Right now it is stayed and our client in Shreveport, Louisiana, Hope Medical Group, has said that they will be resuming procedures as long as the injunction is in place.

Brian Lehrer: Aha. What's the potential ultimate outcome of that case that you would hope for? It sounds like they're going to have to clarify these competing vague trigger laws, and it's not going to be great for abortion rights in any case. Or is there a better and a worse scenario?

Nancy: In Louisiana, it's tough because Louisiana does not protect the substantive, the actual right to abortion in their constitution. That's already been determined that there's not that right in their constitution. Other states do have abortion protected in their constitution, including places like Kansas and Montana and Florida. We might not realize that. Really right now our immediate priority is maintaining access in Louisiana and also in every state for as long as possible. That's because every week, every day that people can access the care they need and make the decisions that are best for themselves and their families, it changes their life.

We are right now highest priority focusing on keeping the clinics open for as long as we can.

Brian Lehrer: Are there other states in addition to Louisiana where you're able to do that?

Nancy: We also have filed suit in Mississippi, in Texas. There's ongoing litigation in other states. We updated our lawsuit in Arizona. We also have ongoing lawsuits around what I was saying before is does that state constitution protect abortion? That is something that we've been litigating in the state of Oklahoma. We've won a number of cases in state court in Oklahoma striking down abortion restrictions in that state and we're litigating there.

Right now abortion services have stopped in Oklahoma as of about a month ago because they passed a total ban on abortion and they're enforcing it with that Texas-style citizen vigilante, $10,000 bounty scheme that Texas advanced last September. Right now there aren't abortions in Oklahoma. It's going to be a very important fight at the state level for protections. Michigan right now is looking to get an initiative, a ballot initiative on the ballot for the fall which would enshrine abortion rights in the Michigan constitution.

Vermont is doing that as well and I think we're going to see more and more states looking to strengthen. I think California's putting it in the ballot. Now they have very protective laws in the state of California. They're a real leader as we are here in New York. This is going to be contested at the state level.

Ultimately, ultimately there's going to have to be a national solution. There's going to have to be an act of Congress that ensures that wherever you live in the country there's guaranteed access to abortion care. We saw the votes on the Women's Health Protection Act this year. 49 votes in the Senate, that close to 50. Of course the filibuster, which reproductive rights groups are saying it's time to go with the filibuster because we need to get to 50 votes. The vice president's, that's 51, and then there can be protection across the country.

We're also urging the Biden administration to act in its full authority. We're seeing state-level work and we're seeing advocacy at the federal government because this is just so hard on people living in these states that are shutting down access to abortion care.

Brian Lehrer: Listeners, we can take some of your comments and questions for Nancy Northup, president and CEO of the Center for Reproductive Rights, which was the lead litigator in the Mississippi case which has wound up with the Supreme Court overturning the Roe v. Wade precedent from 1973. Your questions on what happens next legally, politically, personally. 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer.

You mentioned things that President Biden could do. What could he do by executive action? Anything specific that you have in mind?

Nancy: Well, there are a number of things, but I want to focus on one that I think could have a really, really important impact. In his Friday comments following the decision, President Biden spoke to the fact that he would do everything in his power to protect a woman's right in states. He specifically emphasized the importance of access to medications like mifepristone, which has been approved by the Food and Drug Administration for over 20 years as safe and effective.

Here's what should happen. We are facing a public health emergency. You went over some of that data at the beginning of the hour, talking about there's well-documented adverse health consequences of restricting access to abortion. Complications and maternal death associated with pregnancy, childbirth, unsafe abortion methods. The Secretary of Health and Human Services should be declaring a public health emergency. Then to mitigate the harms that are well known, well documented, the secretary should supersede state abortion bans as applied to medication abortion.

This would be under the Public Readiness and Emergency Preparedness Act - it's called the PREP Act. That would allow medication abortion, safe and effective up to 10 weeks. Can be done by telemedicine under the FDA's rulings. Somebody can do a telehealth visit and get it by mail. This should reach even in those states that will ban abortion outright. That is a very important step that the Secretary of Health and Human Services could take. It would not cure all of the harms of the Supreme Court's decision but it would mitigate because women would be able to get medication abortion up to 10 weeks by telemedicine and mail in their homes.

Brian Lehrer: Getting back to the decision itself for a minute, I think something that hasn't gotten enough attention is that the Supreme Court overturned the precedent of Roe v. Wade from 1973, but also of the Casey decision from 1992, almost 20 years later, that reaffirmed the essence of Roe after all those Reagan and George H. W. Bush justices had been appointed, and still that court reaffirmed the basis of Roe. That's the extent to which the current justices, the majority, are marching to their own drummer, right?

Nancy: That is completely correct. We're talking about almost 50 years of decisions by numerous justices on the Supreme Court. Including, as you just pointed out, Brian, the Planned Parenthood v. Casey decision 30 years ago in which, again, it was reaffirmed, including by Republican appointed judges. The dissent made it really clear that the change in personnel is the only thing that can be driving this result. That is just stunning to have three new justices on the court, and all of a sudden all of the work, all of the thinking, all of the building of precedent upon precedent from all the prior justices just thrown in the trash can.

Brian Lehrer: Mary in Princeton Junction, you're on WNYC with Nancy Northup, president and CEO of the Center for Reproductive Rights. Hi, Mary.

Mary: Oh, thank you very much. I didn't have to wait very long; I'm surprised. A long-time listener, first-time caller. I'm just wondering. I heard this rationale presented many, many years ago on some talk show. I couldn't begin to remember the circumstance or who the speaker was, but they offered an interesting legal challenge to these anti-abortion laws. There is nothing that I know of or that this person had ever heard of that requires anyone, man or woman, to go through any type of medical procedure or process that requires them to do that in order to save the life of someone else.

No one can be forced to donate blood. No one can be forced to go through bone marrow transplant or donate a kidney for someone who is dying but is already here in the world. Why does a woman have to be required to go through the process of pregnancy and childbirth, which have huge statistical outcomes that are terrible? I don't understand why we can't just have Congress pass a law that doesn't say we're going to protect abortion. We're going to protect people from being required to go through a medical process to save anybody else. It should be voluntary.

Brian Lehrer: Interesting. Now you'd still need 60 votes or abolishing the filibuster in the center to do that, but Mary, thank you very much. Please call us again. That's an interesting legal framework. Nancy, is it one that you've thought about before?

Nancy: Yes. I think that what the caller is talking about is the right to bodily autonomy. We have dominion over our own bodies and it's recognized in the constitutional law. That's part of the constellation of rights that are under this personal liberty right. It's a very good point that she's making about bodily autonomy. Unfortunately, the Supreme Court gave no weight to it.

Brian Lehrer: Spencer in Berkeley Heights has another thought of a way to go. Spencer, you're on WNYC. Hello.

Spencer: Good morning, Brian. Thank you for taking my call. You had mentioned earlier with your guest that if you look at states that have access to abortion versus states that don't have access to abortion there is a clear disparity in terms of mortality for women giving birth. If you take that factoid and put it off to the side, and then just compare pregnancy mortality between whites and Blacks, you see a huge disparity between those ethnic groups. By extension, the removal of access to abortion means that the rate for Blacks should continue to go up.

Could one not make the argument then that depriving the right to abortion is-- call it tacit racism because you're now basically turning an entire ethnic group into being that much more likely to die as a result,

Brian Lehrer: Right, discrete impact. I think they call it-

Spencer: Yes, in terms of impact.

Brian Lehrer: -discrete impact under the law. Nancy, as the lawyer in the room, is there a potential case there on those grounds?

Nancy: I think we have some very good legal thinkers in the calls, whether they're lawyers or not. Yes, Black women are roughly two to three times more likely to die from pregnancy complications than white women. As the Center for Disease Control has assessed, that two out of three of these are preventable. I think what Spencer's identifying here is that this is an issue of racial justice because when you know-- and these are known by the government; this is the Center for Disease Control. When you know there's going to be a particular impact and you turn a blind eye to it, that is acting in a way that you know is going to cause racial injustice and racial discrimination.

I think one of the things that was very clear when this case was litigated at the Supreme Court is of course it's an issue of gender equality, but it's also an issue of racial justice and it's an issue of economic justice. Half of women who have abortions in the United States are living in poverty, and so all of these issues come together. Brian, I do want to make sure. Can I mention one thing because it was just released by the New York Attorney General today for your listeners?

Brian Lehrer: Yes.

Nancy: The Attorney General and 24 national law firms and leading reproductive rights organizations, including the Center for Reproductive Rights, are part of her new pro bono task force on reproductive health. One of the things she launched today is a hotline which is going to be free and is available in 12 of the most common languages here in New York for callers to find out what they need to know in this fast-changing environment. It's to provide legal guidance and resources to patients and healthcare providers in New York, but also for people out of New York who want to come into New York.

If you go to the Attorney General's website there'll be information about that, but in all of this confusion it's going to be helpful because New York also just passed some new laws last week, maybe in the week before, in terms of protection of reproductive healthcare. Just wanted to flag for you the attorney general's hotline on legal information about abortion.

Brian Lehrer: I'm glad you mentioned it because, as you say, that's brand new this morning and I hadn't even seen it yet, so good for people to know. Related to that, do some of the state laws that prohibit abortion services provided out of state to a resident-- Like a resident of Texas who comes to New York and New Jersey and has an abortion that's perfectly legal here, does Texas actually say it can prosecute that provider in New York and ask the state of New York or the state of New Jersey to extradite that person?

Nancy: Right now that is not the black letter of the law in Texas, the concerns that people have. One of the things that is quite disheartening right now is that abortion funds in the state of Texas have at the moment stopped helping patients with funding to get out of state because they're concerned about some language in a pre-Roe ban that might get them caught up in aiding and abetting. First of all, people in a state aren't willing to share information about where you can go to have an abortion out of the state, and you should absolutely.

Another thing that the president flagged was that the federal government was going to be very vigilant in making sure that people's fundamental right to go to another state to get services that are legal in that state cannot be interfered with. There are lawmakers who have threatened to try to do just that. To basically try to imprison people within their own states and not let people help them, and not let them go to other states, or try to come after providers in a state like New York. New York has passed legislation to shield them from that. We're going to see so much. The states are now involved against one another in this battle for ensuring access to reproductive healthcare.

Brian Lehrer: A related question from a listener via Twitter. How does the Roe ruling affect patient-doctor confidentiality?

Nancy: Really great questions from your listeners. Again, this is, I think, one that one could call the attorney general's hotline. We have doctor-patient confidentiality, and there's real concern when abortion is criminalized that you can go after phone records. There's concern about people who use apps for tracking their cycles and wanting data security as well as obviously security of medical information in the possession of doctors. All of these things. It is a terrible idea to criminalize healthcare because it is an invasion not only interrupting the ones getting healthcare, but all of these privacy concerns come to the fore.

Brian Lehrer: One more thing before we run out of time. We talked on yesterday's show about the synagogue in Florida that's suing that state for its abortion limits on the grounds of religious liberty. Maybe banning abortion establishes an unconstitutional theocracy since it's so based on religion, but our legal analyst guest yesterday was not optimistic about that strategy. Are you at all?

Nancy: I am. We just had a ruling yesterday from the Supreme Court on religious freedom and the Free Exercise Clause, and that's what this would be litigated under. The reality is there are many faiths in which access to abortion care is supported as a moral physician. The court has been busy strengthening as a sword, as we say, the Free Exercise Clause. What I'm referring to is the case yesterday about the football coach holding prayers with players in the middle of the field of a public high school.

They're strengthening the Free Exercise Clause. What's good to be used by football coaches should be good to be used by people who want to exercise their religious beliefs, which include a belief that it is a moral decision to be made by the woman.

Brian Lehrer: I wonder if they pray differently after they lose a football game than after they win. Like, "God, did you help the other team?" It's like they say, "Yes, we want prayer in school so we can pray for decent class size and pray for current textbooks," and yada yada yada. Well, it is not over folks. I think that's the takeaway from this conversation with Nancy Northup, president and CEO of the Center for Constitutional Rights, which was the lead litigator in the Mississippi case. It's not over legally, it's not over politically, it's not over personally. So many battlegrounds yet to be fought on. Nancy, thank you for coming on with us again.

Nancy: Thank you, and it's the Center for Reproductive Rights. If your listeners--

Brian Lehrer: Oh, what did I say?

Nancy: Constitutional Rights, another-

Brian Lehrer: Sorry, that's somebody else.

Nancy: -great organization. Great organization. Also, if your listeners want to track what's happening they can go to reproductiverights.org, "What If Roe Fell?" and they can see what's happening in the various states. Thank you so much.

Brian Lehrer: Thank you.

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