Rebecca Ibarra: I'm Rebecca Ibarra in for Tanzina Vega, you're listening to The Takeaway. Last week, abortion was front and center at the confirmation hearing for Xavier Becerra, President Biden’s nominee for Health and Human Services secretary, with many Republicans attacking his record on the issue.
Speaker 2: For many of us your record has been as very extreme on abortion issues, other pro-life groups have put a lot of information out there that basically you've been against pro-life on the record
Rebecca: If confirmed, Becerra and the Biden administration will have a lot on their plates, reversing course on four years of anti-abortion policies from the Trump administration. At the same time, abortion access remains under threat on the local level, as states including South Carolina, New Hampshire, and Arizona, continue to put in place restrictive laws from so-called heartbeat bills to ones criminalizing abortion providers. Here to walk us through the latest on abortion rights at both the federal and state level is Mary Ziegler, law professor at Florida State University and the author of several books about abortion, including Abortion and the Law in America: Roe. V. Wade to the Present. Mary, welcome back to the show.
Mary Ziegler: Thanks for having me.
Rebecca: There's a lot to get through, but let's start with Xavier Becerra confirmation hearings. Why did abortion politics become such a key part of last week's hearings?
Mary: Well, I think abortion opponents have always seen Becerra as not just someone who supports a right to choose, but someone who has been actively exposing some elements of the anti-abortion movement. For example, as attorney general of California, Becerra was part of an effort to force crisis pregnancy centers to post notifications about the availability of abortion services, or the fact that they weren't medical clinics.
He was involved in an effort to prosecute some of the folks who had put out videos claiming that Planned Parenthood was selling fetal body parts for money. I think part of it was an effort to fit into a kind of existing narrative that religious conservatives, Christian conservatives, in particular, are no longer welcome in the public square, and painting Becerra as an extremist, fit that narrative I think.
Rebecca: Mary, remind us, what did the Trump administration mean for abortion rights at the federal level? What kind of policies were put in place restricting access?
Mary: Well, some of the policies will be easier to unwind, the Trump administration put in place a gag rule, requiring anyone receiving federal family planning funding from refraining from making referrals on abortion, even when patients request them. The administration really beefed up so-called conscience protections and made available to people with religious objections to abortion a much broader array of protections, even when they're not really directly involved in abortion so imagine the secretary answering the phone at a medical clinic.
The administration interfered with funding for family planning and abortion abroad and then, of course, probably the most lasting impact and the one that the administration will struggle the most to undo was Trump's impact on the courts. Trump nominated in a most historically high number of federal judges to the bench and three justices to the US Supreme Court, which will mean both that if Biden enacts affirmative policies, they'll have to get those policies through an increasingly conservative federal judiciary and it'll also mean that Biden will have to play catch up if he's trying to shape the courts himself.
Rebecca: In January, the Supreme Court banned access to abortion pills by mail during the pandemic. What does that signal?
Mary: Well, I think probably the most surprising thing about that was that the Supreme Court chose to act at all. The FDA has long had a requirement that patients taking medication abortion, which is a two-pill protocol, have to get one of those pills in person from a doctor. There's long been studies showing that the in-person requirement doesn't really add any value medically for patients, especially because they're still allowed to take that pill at home, but the American College of Obstetricians and Gynecologists and other plaintiffs argued that this requirement was unconstitutional during the pandemic because it exposed patients to a greater risk of COVID and the lower court agreed.
The US Supreme Court could have easily just sat on its hands as it had been doing for months if it didn't want to get involved in the abortion battle, and yet it chose to decide the case, even knowing that in all likelihood, the Biden administration is going to do something either to suspend or permanently eliminate that requirement. It does suggest that the court is not afraid to get its hands dirty when it comes to abortion and that we may expect bolder moves from the court in the near future.
Rebecca: We're still very early on in the Biden Harris administration, but have we seen any major policy changes related to abortion so far?
Mary: Well, we've seen some smaller ones that we would expect of any democratic administration. The Biden Harris administration has rolled back the so called Mexico City policy, which has reinstated support for international family planning funding, including for abortion. The administration is taking steps to change most of the Trump administration's regulations, although trying to do so in a thoughtful way, so they don't open themselves up to court challenge.
We haven't yet seen the administration make abortion a priority, though, when it comes to more controversial moves like repealing the so-called Hyde Amendment, which deals with Medicaid funding for abortion, or fulfilling one of President Biden's campaign promises which was to "make Roe v. Wade the law of the land."
Rebecca: While all this is happening at the federal level, we're still seeing laws restricting abortion access at the state level. Mary, what kind of anti-abortion laws have been passed in recent weeks, and are there certain trends or patterns that you're noticing?
Mary: Well, I think there are a couple of patterns that are worth noting. The first is that some of the laws that we saw in 2019, that many deemed to be too extreme for lots of states, including these heartbeat laws that ban abortion, usually between the sixth and eight weeks of pregnancy when a heartbeat or fetal cardiac activity can be detected. Those are becoming normalized, and are getting a hard look in states that are certainly red states but not as homogeneously conservative, for example, as Alabama so states, like South Carolina or Texas.
I think in part what we're seeing is a response to Amy Coney Barrett's being on the court and an assumption that with six conservatives on the court, there must be a majority to reverse Roe. We're seeing a lot of focus on medication abortion, which makes sense given both that it's more common during the pandemic, and also that it's been trending upward in terms of the number of total abortions performed, even pre-pandemic. I think we're also seeing a trend toward more technology-infused to abortion restrictions, laws requiring things like hotlines, or search engine tracking of people looking for abortion services.
Finally, more information gathering or spying, forcing either clinics or patients to disclose more information about themselves. I think that's part of a longer-term push by states to make the case that people having abortions or not having abortions for reasons most people in the public would support.
Rebecca: Lastly, what legal battles between the federal government and states should we expect to see in the coming year?
Mary: Well, all of the laws I detailed, particularly some things like the heartbeat laws will be tied up in court. There'll be ongoing tit for tat battles in the courts about whether these laws are unconstitutional, and that usually the answer will be yes, unless or until the Supreme Court overturns Roe. If the Biden administration does choose to, for example, pass a federal law on abortion, we would expect to see conservative states challenged that as a violation of states rights a replay of what we saw with Obamacare.
There's going to be an interesting interplay between what the states are going to do to try to push the Supreme Court to act and what the Biden administration can do to counter that without triggering Supreme Court challenges of its own. That, of course, will probably revive calls to reform the courts on the left, because if the federal courts will ultimately break any tie in the conflicts between the states and the federal government, the Biden administration will have to think about whether it's worth expending political capital to change the court.
Rebecca: Mary Ziegler is a law professor at Florida State University and the author of several books about abortion, including Abortion and the Law in America. Mary, thanks for joining us.
Mary: Thanks for having me.
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