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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Well, you've certainly heard by now that Politico published what it says is a leaked draft of a Supreme Court ruling that would completely overturn Roe v. Wade and return the country to what was the case before the 1973 landmark ruling. Abortion rights would no longer be considered a constitutional right in this country but would be up to each state.

Now, the draft has not been independently confirmed by NPR or WNYC as real, but many experts are being quoted saying it appears to be real. Also, a draft opinion at this stage is not a final version and it could yet change. Maybe you've heard by now that many US states have near or total abortion bans already on the books that would automatically take effect if Roe is overturned. The pro-abortion Guttmacher Institute counted 22 states in that category. You ready? They are in alphabetical order.

Alabama, Arizona, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. Some of those states, you might have predicted. Some of those states might have surprised you. That's from the Guttmacher Institute. How would those states compare to countries around the world that you might be curious about?

Well, abortion is considered a woman's right under the law, at least in the first trimester, in the famously Catholic countries of Italy and Ireland. In 2019, the Israeli newspaper, Haaretz, ran an article called Alabama, Iran, or Saudi Arabia? We Checked Where Abortion Laws Are Better for Women. That article in Haaretz begins by saying abortion will be more lawful in Saudi Arabia and Algeria than Alabama and Georgia if the near-total bans passed by their state legislatures are allowed by the courts.

The article also notes that an Alabama anti-abortion rights activist named Eric Johnston drafted Alabama's 2014 law that prohibits Sharia law in Alabama on the grounds that, "Sharia law violates women's rights." He then wrote Alabama's abortion ban law. One more state worth mentioning, New York State. Spectrum News obtained a video recently of the likely Republican candidate for governor of New York this year, Long Island Congressman Lee Zeldin, speaking to an anti-abortion rights or right-to-life group as part of his campaign. He said this.

Congressman Lee Zeldin: It's been many, many, many decades. I don't even remember the last time New York State had a pro-life governor. It's been a very long time. We're talking about generations past.

Brian: At one point, a woman asked him about so-called pro-life access to him if he's elected governor. He said there would be an open door. Here's that exchange.

Interviewer: What kind of access would we pro-lifers expect to have with you? It doesn't sound--

Congressman Zeldin: Open door.

Interviewer: Open door?

Congressman Zeldin: That's right. Come on in. It's the second floor of the New York State Capitol. It's been a while, but you come right on in.

Brian: Finally, Lee Zeldin said he'd appoint an anti-abortion rights or what he calls pro-life New York State health commissioner.

Congressman Zeldin: Go out and make sure we're getting the most qualified person to be the health commissioner who is also pro-life.

Brian: Long Island Congressman Lee Zeldin, the likely Republican nominee for governor of New York this year, in an appearance before an anti-abortion rights group obtained by Spectrum News. With me now, Mary Ziegler, Florida State University law professor who specializes in the legal history of reproduction, the family, sexuality, and the Constitution. She is the author of books, including After Roe: The Lost History of the Abortion Debate, Abortion and the Law in America: A Legal History, What Roe Means: A History, and the forthcoming Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.

She also wrote an Atlantic magazine article last month called There's No Knowing What Will Happen When Roe Falls. Mary Ziegler is on loan from Florida state this semester, you might say, as a visiting professor at Harvard. Professor Ziegler, thanks for joining us under an extraordinary circumstance today. Welcome back to WNYC.

Professor Mary Ziegler: Thanks for having me.

Brian: First, I guess I should ask if you concur with Nina Totenberg on NPR and others that this draft opinion appears to be real. Because if it's not, Politico will have enough egg on its face for a lifetime supply of omelets.

Professor Ziegler: It sounds exactly like what one would've expected if you were listening to the oral argument in December. It sounds very much like talking points we've heard from the anti-abortion movement for decades. While I can't vouch for its veracity personally, it sounds about as authentic as you can get.

Brian: The draft opinion as reported was written by George W. Bush appointee, Samuel Alito, who says Roe was egregiously wrong from the start. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. That's a quote from the draft as reported. Politico says this draft was circulated on February 10th and has the support of at least five conservative justices. Chief Justice Robert's position is reportedly unknown. For you as a law professor who follows the court, why would a draft be written in February for a decision that won't be handed down until June?

Professor Ziegler: This is pretty normal. There's a lot of internal politics. The court will take an initial vote. When Politico wrote the court voted to reverse Roe, that would be the initial vote taken after a conference. There were at least five votes of that conference that Roe should be reversed and then someone in that majority would be assigned the opinion. In this case, Justice Alito.

Then Justice Alito would circulate his opinion to his colleagues for comments, edits, and sign on. Obviously, there's time between February and now for the opinion to change potentially for one of the conservative justices, who initially voted to reverse Roe to jump ship. This is a moment in time if the leak is accurate that it reflects where the justices' thinking was in February.

Brian: Do you see any candidates among the conservative justices for jumping ship from this total overturn of Roe?

Professor Ziegler: Not really. I think the leak will likely firm up their convictions. They're not going to want to be perceived as changing their minds in the face of public pressure to do so. I think if there were any potential takers for that at oral argument, it might have been Amy Coney Barrett who, at some points, did seem focused on the problems with viability as the line at which states could ban abortion rather than the overall flaws as she sees it in the idea of a right to choose abortion. I think, ultimately, Barrett like her colleagues seemed convinced that Roe was wrongly decided and seemed ready to say so immediately without any kind of windup.

Brian: Listeners, your questions and comments welcome here about Politico's report of a leak of a Supreme Court ruling draft completely overturning Roe v. Wade. 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer with Professor Mary Ziegler, an expert on reproductive law. Professor Ziegler, you mentioned viability. Reportedly, Alito writes that the standard of viability to live outside the womb independently, Roe guaranteed abortion rights until a fetus reaches independent viability makes no sense, Alito wrote. Can you give us the legal history or basis of the viability standard?

Professor Ziegler: Sure. The legal history of the viability standard came in part in recognition of what makes abortion and health care unique in the United States. Harry Blackmun, in drafting Roe initially, had gravitated to a 12-week line rather than viability in recognition of the fact that most abortions took place earlier in pregnancy. His colleagues, especially Thurgood Marshall, who was the only justice of color at the time, essentially suggested that that would not be enough time for some people who had fewer resources, particularly people of color.

I think it's been a reflection of our sense of the fact that in many comparable nations that have leader or earlier lines in which abortion can be banned, there's also health insurance that covers abortions earlier in pregnancy. Viability's been contested ever since. Sandra Day O'Connor famously argued that the viability line was arbitrary and unworkable because it would change, depending on the pregnancy and the hospital.

The draft suggests that viability is an entry point into the problems with Roe as a whole. In other words, it's not something that you can sever from the rest of the Roe opinion or the idea of reproductive rights. It suggests that the entire thing has to go, which, of course, is not something everyone, even seemingly if you believe the draft, that Chief Justice Roberts necessarily believes.

Brian: The draft, according to Politico, also says Roe expressed the feeling that the Fourteenth Amendment did most of the work in the ruling, but its message seemed to be that the right to an abortion was found somewhere in the Constitution and that specifying exactly where was not of "paramount importance" from the reported Alito draft. Can you give us your law professor's take on where in the Constitution, the 7-2 Supreme Court ruling of 1973 did find the right to an abortion?

Professor Ziegler: For the most part, people interpret the abortion right as flowing from the Fourteenth Amendment, which is the due process clause, in particular, of the Fourteenth Amendment, which also recognizes rights to same-sex intimacy, same-sex marriage, contraception, the right to marry for all couples, including interracial couples, the right to parent, and so on. Scholars, including Ruth Bader Ginsburg, in subsequent years, have also suggested that there are concerns about equality for women and other people who can get pregnant.

The court in the draft dismisses those as well essentially saying, ironically, we don't need to worry about that because of precedent. The court points to cases from the '70s and beyond essentially saying discrimination on the basis of pregnancy isn't discrimination on the basis of sex. While getting rid of precedent, the draft says we can't really talk about this whole equality thing because of precedent. The court dispenses with most of the kind of constitutional arguments that have been at the center of arguments for abortion rights, including the ones that many think Roe were based on, but arguments are beyond that as well.

Brian: I've asked this question many times on the show, but I'll ask it again. Why wouldn't abortion rights be protected under the First Amendment as a matter of religious liberty? Because what I see these justices are doing and the whole anti-abortion rights movement doing is to have their conservative Christianity, their conservative Judaism, their conservative Islam enshrined in civil law when so many other denominations of our three major religions endorse abortion rights.

I grew up in Reform Judaism, the biggest branch of Judaism in the United States. That branch is pro-choice. Why wouldn't we say, "The dogma lives loudly," to quote Senator Feinstein, in anyone who would ban abortion because it all comes from their religious beliefs? That shouldn't be imposed under the Constitution as a matter of civil law.

Professor Ziegler: Well, I think it's, again, precedent, which is ironic for a court that seems all too ready to get rid of precedent. The court in the '80s had essentially rejected this argument about the establishment clause, the argument that abortion bans violate the separation of church and state by saying some people who don't like abortion don't like it for secular reasons. That argument would probably have been more convincing then than it is now.

I think the pro-life or anti-abortion movement is much more comfortable describing itself as a religious movement in many instances than it was in the '70s and '80s when it wanted to distance itself from the Catholic Church because, at the time, it was a much more Catholic movement than it is now. The court in the '80s rejected that argument. I think, to some extent, I think to its detriment, supporters of reproductive rights and justice have often been responding to what the court has given them. Sometimes that means shutting down arguments that may have been promising.

Brian: This reported leak is 98 pages in length. Anthony in Huntington is calling in saying he's read 30 of those pages. Hi, Anthony, you're on WNYC. Do I have that right?

Anthony: Good morning.

Brian: Good morning. You've been reading this draft?

Anthony: I have. I'm homesick from work, so I took the time to start to read the opinion and it's concerning. I think that what I read so far is completely state's rights, completely originalism. I've never really ascribed to that philosophy of judicial interpretation. If you read through it, some of the things that-- If it, in fact, is true, if it, in fact, is Alito, what he's saying is that when the Fourteenth Amendment was ratified, there was no broad acceptance of abortion rights. In fact, it was illegal in most states at the time.

Therefore, you can't find protection for abortion in the Fourteenth Amendment, but you can make that same argument for a lot of other things that most Americans, by and large, take for granted at this time and are now on the chopping block potentially like same-sex marriage, like contraception rights, like interracial marriage. There are a lot of things that were illegal at the time. If that's the standard that's applied, look out, brother, we all got a lot of problems.

Brian: Anthony, thank you for your interpretation. Professor Ziegler, what would happen to other privacy-based Supreme Court rulings to same-sex marriage and interracial marriage and to contraception? All of which were enacted by the Supreme Court finding constitutional rights that superseded state bans as he points out. Honestly, I could see the court still upholding at least some of those, the contraception and the interracial marriage, on the grounds that they are more settled law in terms of there being no public movements to contest them. Maybe the more recent same-sex marriage ruling, more vulnerable. What's your take?

Professor Ziegler: The caller is absolutely right that the court's arguments would apply with equal force to many other rights. For example, the court emphasizes that there can be no right to choose abortion because at the time the Fourteenth Amendment was being written, the abortion was being criminalized. That's true. Of course, the same is true of same-sex intimacy. The same is true of birth control. The same is true of sex education in books. I think the court tries to head this off in the draft if the draft is authentic by essentially saying abortion is different because it's the taking of a life.

That's not without peril for the court either because it's quite clear that the pro-life or anti-abortion movement is gunning for blue states as well and, essentially, is going to say that abortion is unconstitutional, wants the court to recognize the personhood of a fetus or unborn child under the Fourteenth Amendment, and to declare that abortion is unconstitutional in places like New York. If the court essentially goes that route by saying abortion is different because of what it does to feed a life, then it's going to be accelerating the effort in the anti-abortion movement to get abortion declared unconstitutional.

Brian: We're talking about the leaked draft according to Politico of a Supreme Court ruling that would completely overturn Roe v. Wade, written reportedly by Justice Samuel Alito. Jackie in Manhattan, you're on WNYC. Hi, Jackie. Jackie in Manhattan, are you there?

Jackie: Yes, I'm here. Sorry. [laughs] Can you hear me?

Brian: I hear you. Go ahead.

Jackie: I don't know how much curiosity there is about this, but I'm convinced that this was the brilliant workmanship of Justice Breyer, whose career is ending. It's rather heroic of him.

Brian: Your theory is that Justice Breyer leaked it because he's got nothing to lose since he's retiring?

Jackie: Well, he might have done it anyway. Certainly, timing is everything. The moment I heard this and I happened to hear it in the middle of the night or early morning, I thought only one person would've been heroic enough to do it. Not that one of the females, well, except for Barrett, but justices would've done it. I think he did it and I think, historically, he's going to be the mark of a very courageous man. Not to mention--

Brian: Go ahead. Do you want to finish it? Not to mention what?

Jackie: Not to mention, a brilliant Supreme Court Justice, but what a move, brilliant.

Brian: Jackie, thank you. Of course, there are many people other than the justices themselves who could have leaked it, clerks and others. Professor Ziegler, do you have a theory on who might have leaked it or someone in what kind of position?

Professor Ziegler: Yes, it could go either way. I would be more surprised if it was a justice than if it was a clerk just because it's such a breach of protocol, then it would be even more shocking if a justice did it. I think it's equally possible that it could be a conservative clerk or as a progressive clerk or justice. The theory that it's suppressive would be, essentially, give some wavering justice if there is one, a preview of the kind of furor that's going to come if the court reverses Roe. Maybe that justice will get cold feet and delay the inevitable or change their vote.

The theory on the other side would be, essentially, that you would kind of soften the blow if you leak this news in a trickle if there's not one shocking moment when people realize this right is no more when there are a series of moments. It might be in the interest of the court's conservative members to have that happen, especially if some of those conservatives are worried about backlash. I really don't know who it is. I think it's equally possible that it could be a conservative or a progressive. There's been clearly a sense that conservatives like Tom Cotton have had that this is, definitely, a progressive doing this. I think that's obvious based on the strategy involved. Ultimately, I don't know. There could be lots of people.

Brian: How unusual is the leak itself? Things are leaked out of the government all the time. I know it's extremely unusual on the Supreme Court. How groundbreaking the unusual is it? I heard Nina Totenberg on Morning Edition today say that just the act of the leak might break trust within the court, among the justices themselves, or with what information they share with their clerks. If they have much control over that and still get their work done, that could have ramifications for a long time to come. You have a take on that?

Professor Ziegler: Yes, I think Nina's absolutely right. I think that this is extraordinary. In my lifetime, I've never seen anything like this. I think the court has already been on a trajectory very unfamiliar to court watchers. The speed with which it's taken up culture war issues, the speed with which it's rendering major decisions on those issues seems unprecedented.

I think, unsurprisingly, as the court takes the nation on a very different trajectory, the norms and rules that have governed relationships within the court are breaking down. That's likely to have reverberations well beyond the abortion context. Again, I think this is just one part of norms in the court changing, but I think it may be a wake-up call for some of the justices who may not have seen this coming.

Brian: We'll continue with more on the reported Alito draft. Stay with us.

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Brian: Brian Lehrer on WNYC as we talk about the leaked Alito draft of a Supreme Court ruling completely overturning Roe v. Wade as reported by Politico. They better have this right, that this is real, but everybody seems to think they have it right. My guest is Mary Ziegler, Florida State University law professor, who specializes in the legal history of reproduction, the family, sexuality, and the Constitution.

She's the author of books, including After Roe: The Lost History of the Abortion Debate, Abortion and the Law in America: A Legal History, What Roe Means: A History, and the forthcoming Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment. Professor Ziegler, what do you mean, "Dollars for life and the fall of the Republican establishment"?

Professor Ziegler: This is a book about how the fight to get rid of Roe v. Wade led the anti-abortion or pro-life movement very heavily into the fight to deregulate campaign spending in the United States. The lawyer who led the Citizens United litigation is also the general counsel for the National Right to Life Committee, which is the largest national anti-abortion group.

The book traces how that happened and how the deregulation of campaign spending ultimately, fundamentally helped to weaken the GOP establishment and led to the rise of some of the populism we see in the GOP now. Often, I think people see abortion as this standalone issue or as a women's issue alone or an issue for people who can get pregnant. It's very much turned into an issue that affects many other parts of our democracy.

Brian: I mentioned in the intro way back at the top of the hour, the so-called trigger laws in many states, 22 states per the Guttmacher Institute, which says that's how many states have near or total abortion bans that would automatically take effect if something like this leaked draft is really handed down by the Supreme Court as an actual ruling next month. Would those near or total bans really go right into effect proof or would there need to be some kind of legislative process?

Professor Ziegler: Well, there wouldn't really need to be a legislative process. Many of these laws either assume that this would happen automatically upon the overruling of Roe or they create some kind of process for the attorney general of the state to verify that Roe has been overturned. They're supposed to be pretty automatic. In an alternative universe, if the court were to write something more ambiguous, there may be litigation about whether, in fact, Roe had been overturned.

If it's this clear, I think it'll just be a formality for red states to just certify that the obvious has happened and then move toward implementing these absolute bans. There are exceptions. In some states like Michigan, there's ongoing constitutional litigation under the state constitution to establish that the implementation of Michigan's pre-Roe ban would be a violation of fundamental state rights. In many other cases, this would be pretty automatic.

Brian: I'll note that you also wrote an Atlantic magazine article last month called There's No Knowing What Will Happen When Roe Falls. That article says, if a ruling like this actually comes down, pro-abortion rights sentiment could rise up to weaken those laws in some of those 22 states. Why do you foresee that if states like Texas, Mississippi, and Alabama, some of the recent ones have been able politically to pass extreme bans that are so extreme and so recent?

Professor Ziegler: I think there's more uncertainty if we're looking at this as a matter of the long game. Also, there are states, I think, where things are less easy to predict. Do I think that Alabama is going to change course? No, I don't because of the nation of political party realignment and polarization in the United States. It may well be that voters in those states don't like what's happening on abortion.

We have some, albeit not particularly, recent polling to suggest that that's the case, but they're probably not going to do anything about it because they're not likely to vote for a Democrat regardless. That said, there are other more politically-contested states like North Carolina and Florida that may go a different way. It's more worth remembering, of course, that, in 1973, everybody thought they knew exactly where the abortion debate was headed after Roe v. Wade.

I'm sure folks who are opposed to abortion think that now. Of course, as a historian, I'm here to tell you that that's wrong. [chuckles] This is very much not going to be a struggle that goes away. This is just going to be entering a different chapter. People on either side of this issue would be well-served to remember that. The forces that will push things in one way or another are unpredictable.

Now, I think that includes listeners, right? If people who are listening to this are happy or unhappy about this, what everyone does, including the Supreme Court but certainly also including politicians and states and then the federal government, will depend on if there is a backlash and what that backlash looks like. That's not something I can predict. That's something that the people listening to this will ultimately determine.

Brian: Diane in South Orange, you're on WNYC. Hi, Diane.

Diane: Hello?

Brian: Hi, Diane, you're on the air.

Diane: Oh, wow, [chuckles] thank you. I just want to express my opinion that I don't know why anybody is surprised over this issue, that this would be what the Supreme Court now would do. I think that people should think long and hard over when they vote in the fall. Because if you vote for a Republican, you are voting for this issue.

Brian: Thank you very much. Certainly, when people voted in the past, it's not just Trump who, of course, got to appoint three anti-abortion rights justices, but George W. Bush appointed Alito, who reportedly wrote this decision. George H.W. Bush appointed Clarence Thomas. At least at the presidential level, there's a long history of that.

I played the clips of Lee Zeldin, the probable Republican nominee for governor of New York this year, in a year when some political analysts have said there could actually, potentially be a Republican elected in New York because of issues like crime and inflation. I imagine this changes the political landscape maybe dramatically if this ruling comes down even in a state like New York.

Professor Ziegler: It might. I think people in places like New York are complacent about this issue. I think the caller asked, why are people surprised? I think that's largely going to be people who are progressive who are surprised. It's because they've been dismissing, I think, the sophistication of conservatives for a long time. I think it's because they haven't been paying enough attention to state legislatures or the control of the Supreme Court for a long time. It's because they thought it wouldn't affect them, right?

If you live in a coastal blue state, you would view this as something that's going to affect people and not you, people in states you may never visit. The reality is that that's not true really regardless of who's the governor of New York because people from other states will be coming to New York for abortions. States will be trying to prosecute doctors who perform abortions. This is an issue that will affect everyone. I think people in states like New York are just waking up to that possibility this morning.

Brian: I want to play a clip of Republican Senator Susan Collins of Maine, pro-choice generally, defending her vote to confirm Brett Kavanaugh a few years ago. She predicted to Dana Bash on CNN that this day that may be approaching would never come. Listen.

Senator Susan Collins: I do not believe that Brett Kavanaugh will overturn Roe v. Wade.

Dana Bash: Because precedents are overturned all the time.

Senator Collins: They aren't overturned all the time.

Dana: More than--

Senator Collins: Listen to the standards that he put forth in his conversation with me and also in the hearing. He says for a long-established precedent like Roe to be overturned, it would have to have been grievously wrong and deeply inconsistent. He noted that Roe had been reaffirmed 19 years later by Planned Parenthood v. Casey and that it was precedent on precedent. He said it should be extremely rare that it be overturned and it should be an example he gave--

Dana: You have obviously full confidence?

Senator Collins: I do.

Brian: Susan Collins with Dana Bash on CNN during the Brett Kavanaugh confirmation process or just after it. Professor Ziegler, Susan Collins, probably lucky for her, has years to go before her next election campaign. Do you think she ever believed what she told Dana Bash there on CNN?

Professor Ziegler: She may have wanted to believe it. I don't think anyone who was being serious about this or thoughtful about this believed it, but people are capable of talking themselves into all kinds of things if it's convenient. I don't doubt that Susan Collins was sincere, but I think it was almost obviously and certainly a case of extreme wishful thinking.

Brian: Allie in Richwood, you're on WNYC? Hello, Allie.

Allie: Hi, can you hear me?

Brian: I can hear you just fine.

Allie: Oh, great. [chuckles] Well, thank you for taking my call and thanks for discussing this. I had just been wondering. I'm a big fan of Silvia Federici, the Marxist feminist who wrote Caliban and the Witch and a lot of other amazing work. I guess they're reading her stuff. Something else that I heard on a radio show about the link between tracing abortion legislation to rise and fall of populations and how it's not necessarily a conscious effort by legislators.

It does often seem to line up that when there's population decline, legislators will start to come down harder on abortions because they want women's bodies to be the factories to produce people in the labor force, which is like the Marxist element. I was just wondering if your guest had any thoughts on any of that. I remember hearing that there was population decline happening obviously in the past couple of years because of the pandemic, but I think because of preceding that and wondering if something like this was going to happen independently of--

Brian: Even as some of the same political forces try to restrict immigration, which is another force for young population replenishment. Professor Ziegler, are you familiar with the writer who Allie refers to or that theory?

Professor Ziegler: Yes, I am. Probably, the clearest example of that is in the 19th century when states were criminalizing abortion. A lot of the reformers who were doctors who were behind that movement were unambiguously worried about what they viewed as white women not having enough children. That would've meant people from England, Anglo-Saxon people, and that immigrants from places like Ireland and Germany and elsewhere were having too many children and that this was degrading the national stock.

It's not just sometimes been about pronatalism or the number of people being born. It's been about who's been born. The same thing, unfortunately, is true sometimes on the abortion-rights side that there were concerns. You saw sometimes Republican in the '70s being more supportive of abortion rights than they are now because they thought that illegalizing abortion would result in fewer undesirable people having abortions. This question of how abortion affects the number of people being born and who is born is something that's long been in the background of our conversations. It's just the part that usually doesn't get said out loud by anyone.

Brian: Allie, thank you. Call us again. To this point, Politico says Alito's draft opinion goes so far as to say that some supporters of abortion rights have been motivated by a desire to suppress the size of the African American population. It is beyond dispute. He writes that Roe has had that demographic effect. A highly-disproportionate percentage of aborted fetuses are Black. Again, that's a quote from the Alito draft ruling. If the report in Politico is accurate, is there any legal history in all the research for your books on the topic of abortion rights that indicate Roe was some kind of genocidal attack on African Americans?

Professor Ziegler: Well, it's certainly true that if you go back to the founding of the family planning movement, there were racist arguments made by founders of that movement. Sadly there were racist arguments and eugenic arguments made by many across the ideological spectrum in the United States at the time. Family planners were not exempt from that. It's also true that in the '70s, there were supporters of population control who made what are unmistakably racist arguments that legalizing abortion would, for example, lower welfare costs by resulting in fewer children of color being born.

I think to say then that that is the movement to legalize abortion. That's a radical and gross oversimplification. It ignores the presence of feminists and people who supported reproductive justice in the movement. It ignores some of the historical nuances that, in other words, what was happening in 1910 is not what was happening in 1973. It's not as simple as that. I think there's been a weaponization of conversations about race that ignore some of the nuances.

I think it's unfortunate because, of course, the people who are going to be the most affected if Roe v. Wade is, in fact, overturned are going to be people of color who are people who have abortions at disproportionately high rates, also people who are policed at disproportionately high rates. If you're wondering, how would an abortion ban be enforced? It's the way laws on something like marijuana being illegal are enforced. People in communities who are the most policed will be affected by these bans. People who are not will largely get away scot-free just as we saw with the war on drugs.

Brian: It's such an essential part of this conversation, right? People who are economically better off, disproportionately white women would be more able to travel for abortions. I imagine if the overturning of Roe allows it to be banned in many states and, like you say, with the marijuana laws as a good example, the behaviors that people actually get arrested for tend to be disproportionately people of color, even though a lot of white people are doing the exact same thing.

It's such an essential part of the potential ramifications of overturning Roe. Would Alito use such a claim as the one we just cited as a legal basis for overturning Roe? If not, why would he put it in the decision in this draft if it's accurate as reported and ignore all the rest of that racial, social context that we were just discussing?

Professor Ziegler: Yes, I think it's quite possible. One of the things that was surprising to me about this draft, assuming it's real, is not that the court was overruling Roe, but this feels as if it was a court that hasn't really been in touch with arguments made by people on the other side is not empathetic to people who are feeling wounded by this today. It just feels like an opinion written by a court that's very siloed in its own legal community, in its own political community.

It doesn't, at all, surprise me that this is what we're seeing because that seems to be where the court has ended up. That's, I think, not good for the country even if the court is going to be doing things that are polarizing. I think if the court is completely unplugged from what people who disagree with its rulings are going to think, that's likely to intensify the backlash the court encounters, especially on questions of race.

Brian: When do you expect the actual ruling?

Professor Ziegler: Originally, I think late June and that's still what we would expect. Obviously, now that this week has happened, we're in uncharted territory and we quite simply don't know. If you were guessing, you would still say the end of June of 2022.

Brian: Mary Ziegler, Florida State University law professor, who specializes in the legal history of reproduction, the family, sexuality, and the Constitution. Her books include After Roe: The Lost History of the Abortion Debate, What Roe Means: A History, and the forthcoming Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment. She's got an article in The Atlantic called There's No Knowing What Will Happen When Roe Falls. Thank you so much for joining us.

Professor Ziegler: Thanks for having me.

 

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