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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning everyone. As you've been hearing on the news a vote in the Senate yesterday to make sure abortion remains legal in America failed. All the Republicans plus Democrat Joe Manchin voted against it. A bill that didn't go as far in certain ways could possibly have gotten Manchin plus probably two Republicans, but it would still have failed, because of the filibuster rule requiring 60 votes.

This is widely being reported as an election year choice by the democratic leader Chuck Schumer have a 49 to 51 minority on this vote with no Republican support, rather than a 52 to 48 majority with Susan Collins and Lisa Murkowski probably voting yes. Now Schumer's warning of what could happen if Republicans take control of the Senate, Schumer in this clip cites a statement by Republican Senate leader Mitch McConnell

Chuck Schumer: In light of the Supreme Court's upcoming decision, leader McConnell acknowledged that a national ban on abortion is now possible without Roe if Republicans reclaim the majority. Hear that America? A total national ban on abortion stated by not any Republican, but by the Republican leader.

Brian Lehrer: Senator Schumer quoting Senator McConnell. Some Republicans say it's an issue best left to the states, but some other Republican senators in addition to McConnell are also saying a federal ban would be possible out long abortion in New York and New Jersey and California, and other legal states if Roe v. Wade is in fact overturned by the Supreme Court and they win a majority of the Senator in the house. NBC quote Senator Joni Ernst for example from Iowa a member of McConnell's leadership team saying last week, "We're still debating that, I always believe the state should maintain that right, but we will see."

They quote Senator Ted Cruz saying, "I have supported numerous federal bills, and I'm sure there will be more pieces of federal legislation that are considered." Adding that, "Contested policy issues." Should be resolved through, "Democratically elected bodies." He didn't say resolved by the states. He said through democratically elected bodies which NBC news there takes as including Congress. With us now The Washington Post national healthcare reporter Rachel Roubein.

She's been covering the Washington politics of abortion rights closely since the late Supreme Court draft came out last week indicating Roe will be overturned in the coming weeks by the court. Rachel, thanks for coming on with us. Welcome to WNYC.

Rachel Roubein: Thanks so much for having me.

Brian Lehrer: You reported that yesterday's vote really was symbolic, meant to energize the democratic base and that Schumer acknowledged that. What did he say?

Rachel Roubein: That is a great question because we did see a very similar vote back in February with a very similar outcome. As you said this was a symbolic gesture after the leaked draft opinion to really do the same thing, but as Schumer had said previously last week as he put it with the stakes a bit different. I know that you had showed some clips, but we reported that after the vote Schumer basically went off the Senate floor and talked to reporters and said, "Elect more pro-choice Democrats if you want to protect a woman's freedom and right to choose."

That was Schumer's message right off of the Senate floor right after the vote failed yesterday.

Brian Lehrer: He sets up the argument for the campaign. Yet you report that Democrats have yet to coalesce around a strategy to spark and sustain a public backlash. Are there competing strategies within the party leadership or the base?

Rachel Roubein: Yes. There's several different roots at the moment. One, this is contentious, this is a pressure point among Democrats would be, should they attempt to eliminate the filibuster after yesterday's vote failed which would essentially be allowing the vote or this legislation to pass with the simple majority. Now, as we saw yesterday even without the filibuster the vote would've failed, but that's something that on Tuesday the day before the vote Senator Durbin the top democratic vote counter told me that there wasn't serious discussion at that point about whether to eliminate the 60 vote threshold needed to move legislation forward.

That there are some Democrats who would like to see that, Senator Bernie Sanders an independent, but who caucuses with the Democrats called for that very quickly right after political published the leaked draft opinion. Now, another next step that is being talked about in conversations among democratic lawmakers is holding more votes on related issues. Yesterday in a statement center Patty Murray talked about what those bills could potentially look like, measures on over-the-counter birth control access on tail 10 which is the family planning program.

Investing in more family planning on comprehensive sex education. Those are a few of the potential pathways with the main point being that Democrats want to continue to spotlight this issue and try and sustain voter attention on it in roughly six months until the midterm elections.

Brian Lehrer: Let me ask you a democratic party political strategy question around the reasons that Manchin, Murkowski, and Collins say they voted no yesterday even though they say they support Roe and basic abortion rights. I'm not sure that all three of them give all these reasons, but between the three of them or among the three of them these are all things that come up, and I'm going to go down this list.

One, the bill goes further than Roe v. Wade in the time of pregnancy that states would be allowed to pass restrictions. That as Roe states the guarantee up until viability of the fetus to survive outside the room, roughly 23 or 24 weeks according to the Roe decision. The Schumer bill would allow it at any time. The somewhat pro-choice Republicans and Manchin object to the late-term abortion rights guarantee which goes further than Roe.

They want doctors and other providers to be able to opt out of personally providing abortions if they have moral objections as individuals, the bill would not allow for that. The bill would not allow for the height amendment which is currently federal law prohibiting the use of federal Medicaid funding for abortions for low-income women. The height amendment would go away, and the bill would ban some other requirements that some states have before an abortion could be performed.

Like waiting periods or mandatory sonograms. Of course, people who are for abortion rights don't like those things. They see them as simply barriers, not medically necessary in any way, barriers to obtaining abortions, but those requirements have previously been allowed by the courts within the framework of Roe. You can tell me Rachel if I left out any big ones, but my political question is, did the Democrats consider proposing a bill that only codified Roe exactly as it is which is what's about to go away presumably without expanding abortion rights at the same time?

Rachel Roubein: Yes. That's a great question. I think democratic leaders would say that this bill does codify Roe. There is some contention among the competing proposals in terms of one, democratic aids would have said and would say that the legislation from Senator Susan Collins and Lisa Murkowski has loopholes. They would say that that allows for gestational limits on the procedure earlier than Roe v. Wade.

As you mentioned one of the questions from Collins and Murkowski was protections for abortion providers if they said no, and didn't want to perform an abortion on religious grounds. Senate majority leader Chuck Schumer in a press conference last week contested that the bill would force-- [crosstalk]

Brian Lehrer: Just for clarity, you're talking about an alternative bill that the Republican, basically, pro-choice senators Murkowski and Collins have introduced themselves an alternative bill to what the Democrats put up yesterday, right?

Rachel Roubein: Yes, exactly. It was a broad point that Schumer made in a press conference last week on this is his concern was that it would-- Democrats, in general, concern is that that bill would have loopholes that would allow for there to be limits earlier than Roe v. Wade, earlier than 22 to 24 weeks. That is the concern from the Democratic Party leaders in not wanting to bring that bill up.

Now, a spokesperson for Collins push back on that notion to me. In general, Collins and Murkowski have said that they're talking to Senator Tim Kaine. As you mentioned, in the introduction, even a bill like that from Collins and Murkowski, if it could get mentioned on the floor still wouldn't have the 60 votes for it to move forward [crosstalk] and become law.

Brian Lehrer: Let me go one step further on that thread. Still, as a matter of potential political strategy for the Democrats, let's say they introduced their own bill that doesn't allow for the earlier restrictions like the Collins Murkowski bill would but would only codify Roe at 23, 24 weeks, and those other attributes, what did the Democrats see as the pros and cons of aiming for what might be the heart of consensus public opinion in this country, which might be for basic abortion rights federally, definitely is for that, but only as covered by Roe in this strategy and make the Republicans seem extreme and out of touch.

We're opposing even that which almost all of them would oppose, just codify Roe and leave the rest of the states for now. What did the Democrats see as the pros and cons of potentially running on that this fall as opposed to running on the failure of the bill they proposed?

Rachel Roubein: I think what Democrats would say is that their bill does codify Roe v. Wade into law so codifies Roe v. Wade's resurgence into abortion rights into law.

Brian Lehrer: Of course, it does all those other things.

Rachel Roubein: In terms of the bill would also-- [crosstalk] and state laws that say that they chipped away at the original Roe v. Wade decision, such as--

Brian Lehrer: They are considering passing narrower bills between now and the November election, as you report. You're right, that they're concerned that that could actually benefit Republicans in swing districts, how so in their view? What's the concern there?

Rachel Roubein: Oh, I'm so sorry. I think I lost you for a second. Yes, exactly. There is a thinking of maybe looking at doing votes on narrow guarantees of abortion rights. Measures, guarantee, and access to the procedure in cases of rape, incest, or where the health of the mother is at risk. As you mentioned, there are some private concerns that could help Republicans distance themselves from some of the GOP's more conservative elements. We'll see in the coming weeks, how and whether that strategy evolves.

Brian Lehrer: Listeners, you can join in on the politics of protecting or outlawing abortion legislatively or by executive order. We'll get into executive order at the federal level. 212-433-WNYC. If you're a Democrat, do you agree that your party is going about in the best way so far, including yesterday's vote? 212-433-9692 with Rachel Roubein from The Washington Post.

She's reporting that they are planning some other steps, what would you like them to do next? Same if you're a Republican, and you're for abortion rights or against them as a Republican. 212-433-WNYC, what would you like to see your party do next? It's certainly newsworthy as we played that clip of Schumer at the beginning, citing that Mitch McConnell left the door open for a full national ban were he to get that big a majority in the Senate after this election or after any election.

Republicans do you want your party to go that far and in the context of this year's midterm elections, do you want your candidates to renounce that possibility and rule out ever voting for a national ban. So far some are doing that many are not doing that. Again with Rachel Roubein, National Healthcare reporter for The Washington Post, Democrats, Republicans 212-433-WNYC, 212-433-9692 or you can tweet @BrianLehrer can't forget the Twitter will watch our Twitter feed go by and pull out some good ones.

You quote Connecticut Democrat Richard Blumenthal saying another strategy might be to pass bills protecting other things that are based on Supreme Court privacy rulings like contraception and same-sex marriage. How many votes in the Senate do you think either of those bills might get?

Rachel Roubein: That's a great question. It's hard to say for sure, but I think what we can say that we tend to see when one party is in control before the midterms is that the other party tends to not want to go to be on board with bills that they view as messaging bills before an election.

Brian Lehrer: Why did McConnell crack the door open the way he did on a federal ban?

Rachel Roubein: That's a great question. I'll back up a little bit and talk about a story that one of my colleagues Carolyn Kitchener had reported last Monday. This was for context right before the draft opinion leaked. She reported that some advocates and some Republican lawmakers have started mobilizing around potential federal legislation to outlaw abortion after six weeks.

In general, what Senator McConnell said at his weekly press conference, and this is a quote he said, "I think it's safe to say there aren't 60 votes there at the federal level, no matter what happens to be in the majority no matter who happens to be in the White House. I think the widespread sentiment of my caucus is that this issue will be dealt with at the state level."

That was his quote on Tuesday, which essentially, was talking about opposition to removing the filibuster. As we've seen states have passed bans after a fetal cardiac activity is detected roughly around six weeks and that's a strategy that some anti-abortion advocates would like to see happen at the federal level.

Brian Lehrer: McConnell will say right now that they're going to leave it to the States because he wouldn't have the votes by any prospective headcount of a slim majority, even if they do take the Senate in the fall. We don't know if he would change on that if the time came when he did have the votes. The Democrats don't have the votes right now to suspend the filibuster for what they see as basic rights issues of voting rights and abortion rights as some in the party would like them to do.

They need all 50 Democrats, plus the Vice President. They don't have all 50 Democrats, but we see how much hardball the Republicans were willing to play with Supreme Court nominees near the end of the last two presidents' terms. This was a McConnell action with no consistency on an actual standard. Why should anyone believe that if they have 51 votes after the midterms that they wouldn't suspend the filibuster for a federal abortion ban?

Rachel Roubein: I think your question gets exactly at the messaging on the campaign trail that you're going to see from Democrats and that you're already seeing from Democrats. Is to say that, as they say, to elect Democrats who are in favor of abortion rights, who are in favor of Roe v. Wade. I think this question that you're getting at is something that's really going to play out on the campaign trail.

Brian Lehrer: We'll continue in a minute with Rachel Roubein from The Washington Post. A National Healthcare reporter who's been covering closely the politics of protecting abortion rights or trying to further get rid of them at the national level since the leak of the Alito draft of the coming Supreme Court ruling. Will get into what some Democrats are asking President Biden to do and whether he'll do it as a matter of executive action. We'll take some calls, stay with us.

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Brian Lehrer on WNYC with Rachel Roubein, National Healthcare reporter for The Washington Post. Before we get into the Biden aspect of this and take some calls I think it's important to say this is very much a race and class equality issue. Abortion will still be available for economically privileged women more or less and those with good connections for abortion pills or out-of-state travel but we know that privilege is distributed very unequally by race in this country.

In addition, Black women are around 13% of women in this country. The Kaiser family foundation reports they get about 38% of the abortions. This is another issue in which a white legislative majority will be inflicting their will on Black Americans. Do you see the race in class inequalities as central to mobilizing the democratic base since our conversation is about political strategy mobilizing the democratic base for the fall around this issue?

Rachel Roubein: That's a great question and I do think that's something that is going to come up. One of the aspects of if there are restrictions on abortion in roughly half the states that the country will see is patients traveling out of state to obtain the procedure. That's something we're already seen in Texas where there is a roughly a ban after roughly six weeks in pregnancy where people are traveling out of state.

That's something that people need the funds and the resources for. I mean you're also seeing this plain out in state legislatures too. For instance, Oregon again passed a bill for a 15 million fund to help people from traveling out of state to help people obtain the procedures. That's something that we're going to continue to hear talked about also at the state level as we see more Democratic states moving to protect and expand access to abortion and we see more Republican states restricting it. That is to be clear if this draft opinion is what ends up coming out in later this summer in late June or early July.

Brian Lehrer: I think Marina in Nassau County has a point to make along these lines. Marina, you're on WNYC thank you so much for calling in.

Marina: Hi. One of the things in all of this conversation that I feel is missing is that in this country, our all-cause maternal death rates are ridiculously high. It's more dangerous for a woman to give birth today than when my mother gave birth in the '60s. They're going to force us to stay pregnant. Medicaid expansion is not something that happens and if you look at the states that are trying to get rid of abortion they're the same states that refuse to have Medicaid expansion.

All-cause fetal death rates in this country are higher than most other progressive "countries." Our healthcare system is a mess, they're going to force us to stay pregnant. You're not going to do anything about us having a healthy pregnancy, making sure that our children live once they're born. I feel like the biggest part of this conversation is being missed women's healthcare in this country sucks.

Brian Lehrer: Marina, thank you very much. Would any Democrats be running along those same lines talking for example about-- I don't know if you can verify her stat that the maternal death rate is higher now than back in the 1960s? Certainly, the life of the mother is one of the things that gets debated around how far an abortion ban should go on the Republican side.

Rachel Roubein: In terms of the maternal death rate I mean just generally speaking the United States does have a maternal death rate that has been highlighted as being high. That's something that lawmakers and policymakers have been trying to figure out policy-wise what can be done here. That's a great question on some of the restrictions that we've seen states pass to us there's something called trigger laws which would essentially prohibit most abortions almost immediately after Roe is overturned.

Some of these trigger laws require quick action from the state attorney general or the governor but the theory is that they could be in place pretty quickly if the Supreme Court overturns Roe. One thing to note about trigger bans is they're in roughly 13 states and rape and incest exceptions most trigger bans don't include them, some do but most don't. The majority do include exceptions for if the women's life is endangered.

This was some statistics that I had gone from Elizabeth Nash at the Guttmacher Institute who has been charting this really closely.

Brian Lehrer: By the way our national special tonight at eight o'clock which I'm hosting and having Erin Haines from the 19th the news organization based in Texas that covers gender and policy and politics, Erin Haines with us tonight. Also, Jessica Bruder, who wrote that amazing cover story. We had her on this show last week in The Atlantic which talked a lot about the history of underground provision of abortion services before Roe and looks at what might come next. Jessica Bruder and Erin Haines on our national call-in special tonight at eight o'clock on this.

We will very much center inequality and abortion access after Roe and various things that are being planned or done already to address that. Tell your friends and family around the country about that national special at eight o'clock tonight will be on in lots of cities. I know it'll be beyond some places in Texas, some places in Alabama as well as Boston and Philly, and some places on the West Coast. That's tonight at 8:00.

Let me ask you the Biden question, you report that Senator Elizabeth Warren said she favors highlighting access to medication abortion which some Republican states are trying to restrict the prescribing and shipping of. She said executive actions from President Biden could be more appealing than legislation in Congress you wrote, what is anyone saying the president could do through executive action?

Rachel Roubein: That's a great question. That's something that is going to continue to come up because there are questions over what exactly can be done over executive action. You're going to see Democratic lawmakers pressuring the administration to try and figure out what can be done. We saw Senator Patty Murray from Washington state put some pressure on the administration here in a statement last night.

Now there's still are questions over what exactly the Biden administration can do though. My colleagues Tyler Pager. You ask me, Tyler had a good story last week that mentioned that officials are discussing whether there's funding, whether through Medicaid or another mechanism that could be made available to women to travel to other states for an abortion

Brian Lehrer: Lisa in Brooklyn you're on WNYC. Thanks so much for calling in Lisa. Hi.

Lisa: Hi. Oh, I probably have a 30-minute [laughs] rant about this. Let me see if I can select some highlights that don't seem to come into the conversation. First politicians and most people in the press have a tendency to use buzzwords and simple phrases and to obscure what is actually going on.

For instance, you'll hear a lot of press about Medicare for all, losing sight completely that the goal is universal healthcare. Medicare for all is simply the simplest fastest means to an end but was never the actual end, the same with codifying Roe. Codifying Roe is not the end, guaranteeing universal access to unrestricted abortions for all women is the goal and anything else is off-topic. Including all of the social justice discussions here, which is typical of the democratic party and the press covering them about class and identity politics.

Brian Lehrer: Wait wait wait, let me jump in on that one for a minute, Lisa. If there's going to be a disparate impact perhaps a very disparate impact by race and class of allowing all these states to enact their trigger laws. If the court overturns Roe. Why is that not a central thing to talk about?

Lisa: Because the battle that has been going on in this 50 plus year campaign of the right has been to outlaw abortion. They are not making a distinction, they are unified in what they are doing and they are relentless and they are untiring in it. If you take what is presumably what I keep hearing, I don't know how accurate it is, is that 70% of the population or 70% of the electorate is in favor of legalized abortions.

Then you say we have 70% let's break that down into a whole bunch of different factions because we're the Democrats and we want to shoot ourselves in the foot and get rid of our majority. As soon as you start fracturing the conversation and you say, "Oh, what about the Black women, the Brown women, the red women, the poor women the undocumented women?" Gee, now you've taken 70%. You've got at least five separate and disparate categories.

Now maybe you want to use that the way the Democrats will use this policy for fundraising but it will not advance legislation or protections. This is an assault on all women and all people who care about women including those who father children with women and are married to women. Anytime you saw this you say there are some people who are going to be hurt by this more than others. I will stand here and say as a woman, any woman who is forced to become pregnant, to stay pregnant, to go through childbirth and to have to deal with possibility of having a living child afterwards is equally affected just by that horrific process.

Brian Lehrer: I understand the point you're making. I think it's still important to say in real life who would be affected and the most affected but I understand your point about how it would apply universally. Let me ask you one more follow up to what you said in the first part of your remark, Lisa. That the Democrats should be talking about that this is about unrestricted access to abortion. Do you want them to run on unrestricted access? Because that's exactly the Republican strategy. That is to say, the Democrats want unrestricted access to abortion and to paint that as extreme.

Lisa: I think that anything the Democrats say will be painted as extreme. I think there's a very well-oiled right-wing Republican machine. I think talking about all the different ways one could approach the legislation or the campaigning or anything else is constantly talking about, "Oh, the Republicans could use this or they will campaign on it or they'll never agree to it all in the spirit of we must compromise with them or we must be afraid of them." I think the basis for Roe on privacy was the wrong part of the law.

I think we have a situation where I am not obligated to donate my kidney to save someone else's life. I'm not obligated to jump into the waters to save someone who is drowning. There is no legal requirement for me to put my life in jeopardy to save another's life. Even if you grant that a few cells or an embryo or a fetus is a human being with full civil liberties which no one actually grants. You are still saying that someone else who is also a human being with civil liberties should have to put her life in jeopardy or sacrifice her life against her will to save someone else.

Maybe we don't have any laws like that in the country. We are talking about an entirely different level of life, liberty and protection of the right to live of a human being. That human being is the person who is pregnant. Yes, I have always been for unrestricted access because any moment that you try to say that a woman of a certain kind or a pregnancy of a certain kind is restricted, you are saying that there are citizens of the United States who may be required to die because of this law and the decision is taken out of their hands because we no longer recognize that they have equal rights with every other citizen.

Brian Lehrer: Lisa, thank you so much for your call. We really appreciate it. We're almost out of time. One of the points that Lisa brought up about responsibility of the father. Do the Republicans ever talk about that? If they're trying to ban abortion all over the place. Is there anything that they say about if the mother's going to be responsible for bringing this child into the world, is the father going to be responsible under Republican legislation for 18 years of child support?

Rachel Roubein: I think in Washington to the point there that you had made earlier, I think in Washington on Capitol Hill the message that we were hearing from Republicans was the message of unrestricted access. Like you had said Senator John Thune who's in Senate Republican leadership told my colleague basically said that Democrats aren't trying to nuance this at all. I think that's the message that you are going to continue to see from Republicans.

Brian Lehrer: Rachel Roubein, National Healthcare reporter for The Washington Post. Thank you very much for joining us. We really appreciate it.

Rachel Roubein: Thanks so much for having me.

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