Of the states that just passed measures protecting abortion, a majority of them also delivered their Electoral College votes to Donald Trump. New York Times Magazine staff writer Emily Bazelon joins host Krys Boyd to discuss why Democrats’ call to restore reproductive rights didn’t bring voters to their side, how Trump has been inconsistent in his messaging about the issue, and what this signals for efforts to keep abortion legal in America. Her article is “America’s Split Screen on Abortion.”
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Transcript
Krys Boyd [00:00:00] When the Supreme Court’s Dobbs decision ruled that the Constitution does not guarantee a right to abortion, some Americans were outraged. Others were overjoyed. Elected Democrats, who historically have been more vocal supporters of reproductive freedoms than Republicans, were alarmed, but also hopeful. Polls show a majority of Americans believe abortion should be legal in at least certain cases. And Democratic Party strategists thought this would give them a leg up in the recent election. From KERA in Dallas, this is Think. I’m Krys Boyd. We know, of course, that those hopes did not come to pass for the Democrats. Americans put Donald Trump back in the White House and Republicans also gained seats in the House and Senate. But here’s the thing. Of the ten states that also put abortion on the ballot, voters in seven of them chose to protect abortion rights, including three states, Arizona, Montana and Missouri that gave their electoral votes to Donald Trump. So what happened and what does this mean for the future of abortion access and abortion politics? Emily Bazelon is a staff writer at the New York Times Magazine, where you can find her article, “America’s Split Screen on Abortion.” Emily, welcome back to Think.
Emily Bazelon [00:01:11] Thanks so much for having me.
Krys Boyd [00:01:12] Your sense is that abortion rights, the abortion rights movement hit a ceiling on Election Day this year. How so?
Emily Bazelon [00:01:20] Well, on the one hand, you see a bunch of states passing measures that protected abortion rights, and this is following on similar ballot initiatives passing in 2022 and 2023 after the Supreme Court reversed Roe v Wade. And then at the same time, for the first time, a few of these ballot measures failed. And of course, Donald Trump was elected president, even though he is taking pride in reversing Roe, and his opponent, Kamala Harris, is a strong defender of abortion rights. So in the presidential race, especially, voters sent the signal that, you know, abortion matters a great deal to some of them, but it wasn’t enough to determine the result of the presidential race in a way that was going to elect a Democrat.
Krys Boyd [00:02:07] Yeah, it is so interesting that on both sides of this issue, the fact that Kamala Harris did not win feels like a big deal. To what extent had she leaned into the abortion issue hoping it might carry her over the top?
Emily Bazelon [00:02:20] Well, she leaned in hard. And, you know, people who want to protect abortion rights, I think, give her a lot of credit for being the first presidential candidate who really put reproductive rights front and center. President Biden has always been kind of uncomfortable. He doesn’t usually like to say the word abortion out loud. And Harris talked about it in a very forthright way. And she made ads about how important she thought the issue was and also made ads with the family of a woman who actually died in her family’s view, because of a state abortion ban. So Harris really took a kind of different tack than Democrats as well as Republicans have taken in the past.
Krys Boyd [00:03:01] Is there evidence, Emily, that abortion is an issue that broadly engages American voters beyond, say, women of childbearing age who might find themselves directly affected by reproductive laws in their state?
Emily Bazelon [00:03:14] Well, I think what we can say is that when you ask voters what are the most important things to you in 2024, most voters said the economy. Sometimes they talked about the border, social security or health care. The people who said abortion was their top issue were a minority, even among Democrats. And like you said, they tend to be women of childbearing age. But this just wasn’t a top issue for the electorate at large.
Krys Boyd [00:03:41] So we’ve now seen a number of swing or even solidly conservative states that have passed measures to secure or restore abortion rights, including states where majorities voted to put Donald Trump back in the White House. What does this tell us about the partizan politics surrounding abortion rights?
Emily Bazelon [00:03:59] Yeah, it’s really interesting. I mean, so especially in states like Missouri and Arizona, you see majorities for Trump and then you also see strong majorities for these state laws that would protect abortion rights. I think there’s a couple of things going on here, right? I mean, one is that if you ask voters straight up, do you think women should be able to have an abortion? They might answer yes, but they might also think, well, Donald Trump is my preferred candidate for president and maybe not think through the way in which a Trump presidency could actually limit abortion rights. You know, one thing that’s important to point out here, and I’m not sure how clearly this message came across during the election. Federal law preempts state law. So, in other words, if Congress were to pass a national abortion ban or more likely, if the Trump administration were to take away access to abortion pills because they control the Food and Drug Administration or try to enforce an old law called the Comstock Act, if they do those things, it’s not really going to matter that the states have protected abortion rights. The federal rule is going to win out. And maybe voters didn’t quite understand that, or maybe they just thought, well, those federal things are not likely to happen. And I think that the state, the rights in my state will be secure. It’s kind of hard to tell.
Krys Boyd [00:05:24] You spoke to some people who had been generally opposed to abortion rights before the Dobbs ruling. What kinds of stories in the aftermath did they say changed their thinking?
Emily Bazelon [00:05:37] Well, it’s yeah, the polling on this is pretty clear. When people hear stories of women who are really suffering because of abortion bans, that gives them pause about about opposing abortion. Right. So, you know, there have been a lot of stories in the news, including from Texas, of women who had septic infections but couldn’t get treatment in the hospital because the law says, well, the doctor has to be sure that a woman’s life is actually threatened. And physicians were afraid to make that call. And so they told women to go home and, you know, continue to suffer from these infections. People’s fertility can be affected, and yet they could still be ineligible in the view of the doctors interpreting the laws for the kind of abortion that would protect their health. And those kinds of stories like, you know, really do tend to move voters. But one issue that has come up in the research is that the stories like that did not really reach a Republican audience. They are pretty common in the mainstream media. But on places like Fox that a lot of conservative voters watch a lot, that is not something that’s really getting covered.
Krys Boyd [00:06:50] Well, in any case, regardless of one’s sense of the morality of abortion. It is it’s hard not to be moved by stories of people with wanted pregnancies who were denied medically necessary care when something goes terribly wrong. We should note, though, that support for exceptions to total bans is not the same thing politically as support for the kind of access to abortion people had before Dobbs.
Emily Bazelon [00:07:12] Yeah, that’s a really good point. You know, well, for Dobbs, in a world where Roe v Wade protected a national constitutional right to abortion, you often had people being pretty sympathetic to states setting limits. You know, there was more concern that about what gets called abortion on demand, like the idea that anybody can have an abortion at any point in pregnancy, even though that’s very uncommon. After, Dobbs the kind of concern switched to being these situations in which women cannot get an abortion even when their health really demands that kind of care. And, you know, it’s like a world in which what’s the what’s the default rule? People can see that when abortion becomes very hard to get in some states, that that can have repercussions. And then I think that’s changed their thinking about whether they would rather live in a world where maybe there are some abortions they disapprove of, or a world in which women might be really, really getting sick and unable to have children in the future because they couldn’t get care.
Krys Boyd [00:08:19] How much in this past election cycle did abortion rights advocates talk about the other, frankly, probably more common situation that causes people to choose abortion, which is that they become pregnant and for whatever reason, they don’t feel like they can cope with being pregnant or they don’t feel like they can cope with raising a child.
Emily Bazelon [00:08:38] Yeah, you’re right. That, of course, is more common. And I think that people started to be more forthright about that in this election cycle. I think a lot of women who’ve had abortions came forward. You know, they felt like there was a lot at stake, that being able to decide when to have a child and when not to have a child was a real turning point in their life. And sometimes the decision not to carry a child can open up possibilities and can mean that you’re more likely to be able to take good care of your other children or to have a baby in the future. And I think people have become, you know, some people much more willing to tell those kinds of stories because they feel like voters really need to understand what’s going on. And the idea of keeping abortion kind of under the radar and sort of stigmatized in some way is one of the reasons that it’s no longer broadly legal everywhere.
Krys Boyd [00:09:29] Before we get into the state by state policymaking on abortion, post jobs, I think we should talk about the landscape. Pre Roe versus Wade. There had been just a handful of states at the time that made the procedure entirely legal.
Emily Bazelon [00:09:44] Yes, that is true. Only 4 or 5 states. And this, of course, comes up because one of the issues that we’re facing now is this question of like, okay, well, if you leave abortion up to the voters, if it becomes part of the democratic process, what happens next? And there is an argument about what was happening right before Roe in the early 1970s. You know, some scholars look at that time and they say, look, most states made abortion illegal. And if the Supreme Court had not acted, that would have remained the law of the land for a long time. The opposition of the Catholic Church and the what’s called the Moral Majority was starting to rise in the 1970s. And other people, including Justice Ruth Bader Ginsburg, throughout her career as a lawyer and on the Supreme Court, she would say, actually, it would have been better to leave abortion up to the democratic process. Her view was that Roe kind of stopped people in states from really thinking this through and passing laws. And it’s really a question about social change. It’s like how we make social change in America. Is it better to anchor social change in the democratic process, or is it better for courts to declare a constitutional right, which then applies to everyone and is really rooted deeply in law?
Krys Boyd [00:11:04] Yeah. So Ginsburg supported abortion rights ideologically, but she was in the camp that thought that the row ruling in 1973 was like too much too soon by the wrong branch of government.
Emily Bazelon [00:11:18] Yeah, exactly. And, you know, one of the things, the parallels that people bring in here are like another historical analogy is the movement for marriage equality. So at first, gay people who want to get married go to the courts, they get turned down. Then in I think, 2000, the Massachusetts Supreme Court grants a right in Massachusetts based on the state constitution to marriage equality. And then there’s this kind of incremental progress where there are other state court cases. There are efforts to pass state laws and state ballot initiatives. And by the time the issue comes to the Supreme Court in 2015, it’s established in a whole bunch of states already. And the polls have changed. People are much more accepting of of marriage equality and same sex marriage. And so I think one way of thinking about the Ginsburg critique of Roe is this sort of hypothetical question. Well, without Roe, would that kind of process of normalizing abortion have happened the way it did for same sex marriage? And we’ll just never know the answer because it’s a universe we don’t live in.
Krys Boyd [00:12:26] It really is interesting. I mean, the parallels have to end between marriage equality and abortion rights because on marriage equality, I mean, there are we’ll note there are still people who think it’s not right for same sex couples to be allowed to marry. But but huge swaths of the American public now have no problem at all with same sex weddings.
Emily Bazelon [00:12:45] Wait. I mean, there is a kind of twist to the abortion story, though, which is that for the nearly 50 years of Roe, the country seemed very stuck in terms of the polling on abortion. It seemed like there was just basically a split down the middle, maybe a small majority for abortion rights in most circumstances. But it was very, very contested. And then after Roe fell, the polls started to change and more people started to say that they were pro-choice, that they actually thought abortion should mostly be legal. And so in this ironic way, it was the loss of this right that seemed to make more people value it.
Krys Boyd [00:13:24] It is interesting as well. I mean, presumably some of the people who changed their thinking after the row ruling changed their thinking because they or someone they cared about had direct experience with it.
Emily Bazelon [00:13:37] Yes, that’s entirely possible because, you know, many, many women, something like a quarter of women of childbearing age have had an abortion, which is, again, why it becomes important and powerful for women who want to protect this right to come forward and talk about their own experiences.
Krys Boyd [00:13:52] So now, Emily, we have a number of states that have articulated abortion rights in their laws or in some cases their constitutions. This is often happening by these citizen ballot initiatives. Can you broadly explain what those are?
Emily Bazelon [00:14:08] Yeah, sure. So in 26 states, citizens have the right to petition to get an issue, a question to voters onto the ballot. And this was a reform of the early 20th century, what was called then the progressive movement. It was sort of part of like a small d democracy set of changes that were supposed to make democracy more directly responsive to people. But like I said, only 26 states adopted this kind of rule. And it’s kind of random. Which states have them and which don’t. A lot of places in the West, a few states in the South, a couple of states in the north, and then a lot of states, including Texas, that just don’t have this option at all.
Krys Boyd [00:14:49] Why did abortion rights advocates decide to mobilize in support of abortion at the state level? Was it because it appeared to be their only shot given the climate on the Supreme Court currently?
Emily Bazelon [00:15:00] Yeah, pretty much. I mean, if you are in a Republican controlled state, then the people who control the legislature and the governor’s office, the people who pass the laws are anti-abortion. Like, that’s just a universal feature of the Republican platform. And yet you might still find if you did a poll that most people in the state are broadly supportive of abortion rights. So those were the states that the abortion rights advocates turned to. And this this started with initiatives that actually in which abortion rights supporters were able to persuade voters to vote no on an initiative in Kansas that would have prohibited abortion. So they first got that signal like, even in Kansas, which is a red state. The voters didn’t want to put into their constitution an abortion prohibition. That was 2022, shortly after. Dobbs. And then you see a ballot initiative in Michigan, a purple state to protect abortion rights in 2022, in November. And that that initiative did really well. And then a similar thing happens in Ohio in 2023. So there starts to be momentum from this idea that even in a conservative state, if you go directly to the voters with a single issue question, voters are likely in majorities to choose to protect abortion rights.
Krys Boyd [00:16:25] And yet you say ballot measures can be risky for abortion rights advocates. Why?
Emily Bazelon [00:16:30] Well, in this last election cycle, a few things went wrong for the pro-choice side. They’re all kind of quirky. So in Florida, they were up against a 60% threshold. They had to convince not a majority of voters, but 60% of voters, and they felt they had 57%, which is a strong majority. But it wasn’t enough. Then in South Dakota, the advocates who paid for the ballot initiative put on a measure that only supported abortion rights in the first trimester, and that was not enough for additional groups like Planned Parenthood. So they didn’t contribute any money, and that measure failed. And then maybe the most interesting story is from Nebraska, where there was one measure on the ballot to expand access and another measure on the ballot to limit access to the first trimester. And it was the second measure limiting access that actually passed. So, you know, that could become a strategy going forward for abortion opponents.
Krys Boyd [00:17:33] And of course, not every state allows for these kinds of ballot measures. What strategies might abortion rights advocates try in places where you can’t do a citizen sponsored ballot?
Emily Bazelon [00:17:45] Yeah, it’s a great question. I mean, they have a couple of options. One is to go to the state courts, especially with a challenge that maybe doesn’t, you know, ask for something that replaces Roe but chips away at a ban or restriction. So that’s one option. There are lawsuits and another option is to try to convince the legislature to protect abortion in some way. Even if you’re in a Republican state in which at least right now, there are probably strong majorities in the legislature that want to restrict or ban abortion. But if that’s not popular, you might hope that those people could change their mind over time.
Krys Boyd [00:18:22] Does voting on abortion rights, whether people vote for or against, does it shake out along gender lines in places where it does show up on the ballot?
Emily Bazelon [00:18:32] You know, my sense from the polls on this is that there are more women than men who support broad abortion rights, but there are also lots of men, too. So it’s not that men don’t understand how important this is, even though there may be slightly more women who are attuned to it.
Krys Boyd [00:18:51] Florida is one of the states that does allow these kinds of ballot initiatives and put this up for a vote in November. How did it happen that Amendment four was defeated there, despite abortion advocates vastly outraising and outspending abortion opponents for this measure.
Emily Bazelon [00:19:08] Right? Well, as I mentioned, they had to cross the 60% threshold. And they also had just very strong opposition from Governor DeSantis. So Governor DeSantis really put the Florida government to work trying to stop this initiative from passing the state. He used one state health agency to actually pay for ads that went on television that opposed the measure. And then another Florida health agency threatened some television stations with potentially criminal sanctions if they ran an ad that was in favor of the measure. The state health agency said that the ad was misleading. So it was really like direct activity by the state using state taxpayer dollars in this election.
Krys Boyd [00:19:58] Emily, setting aside what could change if Congress were to pass some national law for states that have had votes on abortion in the past couple of years? Are those decisions granting or denying abortion rights final, or are they always up for reconsideration unless that state has passed some constitutional amendment?
Emily Bazelon [00:20:20] You know, what’s really important understand about this is that federal law preempts like matters more than a state law. So if Congress were to pass a law that banned abortion after 15 weeks, which is something that Republicans have talked about, then a state that protected abortion and would only be able to do so up until 15 weeks. Once that federal ban went into effect, the state law, whether it’s in the Constitution or not, just doesn’t matter anymore. That’s how American law works in our federal system.
Krys Boyd [00:20:55] You note that many people hold nuanced views about abortion, including the circumstances in which it should or should not be allowed. How is it that those nuances often fail to be captured by polling on the issue?
Emily Bazelon [00:21:09] Well, you know, I think one reason is that it’s just hard to quite know how to ask the question. So for many years, Gallup asked, do you think abortion should be legal in all or most or few or no circumstances? And I don’t know. When I think about that question, like it just is tricky. You have to decide in your head what most means or what few means and where you’re going to sort of land. Sometimes polls also ask people if they’re pro-choice or pro-life, and those labels can seem kind of meaningless out of context. And I think for a lot of people. So, look, there are some people who have very black and white views on abortion. It should always be allowed. It should never be allowed. A lot of people probably have views that are in some cases they would allow for it or maybe in most, but not totally all cases. And yet they don’t feel like the kind of blanket terms or most and few really capture what their doubts would be in either direction. And I think that that is just like a trickiness. This is an issue that can be very personal for people and personal. You know, case by case considerations are not things that polls really capture.
Krys Boyd [00:22:26] They’re not things that polls really capture, and they’re not things that laws are particularly good at handling. Right. If we all believe that, you know, the morality of abortion or the legality of abortion should be decided on a case by case basis, laws just don’t work that way.
Emily Bazelon [00:22:42] That’s true. And then another thing I think is that politicians often don’t have very good language for this. Right. I mean, it’s much easier to say I broadly protect abortion rights than it is to say like, well, I’m kind of uncomfortable about the idea of someone having a very late abortion because they just like didn’t face up to being pregnant earlier. Or, on the other hand, like, I mostly think abortion should be illegal, but like, if it was a teenager who just, you know, got into a really bad fix, I would let that person have an abortion. Just like those things are not they take they’re not soundbites. And so I think often politicians gloss over them.
Krys Boyd [00:23:21] Yeah. So I guess the follow up is how that lack of detail in polling data maybe, you know, the difficulty in truly articulating what voters feel, how that affects the way abortion policy is crafted at the level of state legislatures or on these ballot measures.
Emily Bazelon [00:23:39] I mean, I think one answer is that the bans and restrictions have been very, very harsh and almost total. You know, when women say that they are carrying a wanted pregnancy and something went terribly wrong and they got an infection, but they couldn’t get the treatment they needed because they weren’t at death’s door. Sometimes abortion opponents say, well, that’s the doctor’s fault. The law actually does provide for an exception. And the doctors just got it wrong. But we’re seeing enough of those cases over and over again that you realize that the doctors or sometimes the hospitals are really afraid of liability here. And these laws just are not written flexibly enough. Of course, the people who write the ban say, well, if we write them more flexibly, then like doctors will just create exceptions for everybody who they feel sympathetic to. So I think that’s one way you see the legislation really struggling to capture the full reality of human experience.
Krys Boyd [00:24:36] Have you observed abortion rights groups trying to adjust their messaging based on what they do know or think they know about what shapes voters views?
Emily Bazelon [00:24:46] I think one lesson since Dobbs is that the idea of liberty and freedom gets a lot of support from the American people. So if you talk about the idea that the government should not make decisions about health care, that people should be able to make their own decisions. That’s something that resonates with people and it resonates more probably than the idea of choice. So maybe that’s like a subtle distinction, but the difference between like freedom and liberty versus like making a personal choice, which may be sometimes can seem sort of trivial to people. That’s one thing that abortion rights supporters have learned since Dobbs.
Krys Boyd [00:25:26] I’m not a political strategist, but it seems surprising now that you’re starting to hear that case being made in those terms that it wasn’t utilized before. It seems like something, you know, once you talk about freedom, you’re going to resonate with a significant portion of the American public.
Emily Bazelon [00:25:44] Yeah, that’s really interesting point. You know, black women for years have been proponents of or some black women of what’s called the reproductive justice movement, in which they talked about the freedom to have a baby or not have a baby. And they also want enough support that people who want to have children can do that in dignity, with enough economic means to raise their children in good and healthy ways. And so I think that’s sort of was like a foreshadowing of this idea of freedom being more front and center.
Krys Boyd [00:26:21] I’m really curious at this point, Emily, how the next Trump administration might land on a position on this issue. Talk us through what Donald Trump has indicated about his personal views on who, if anyone, should have access to abortion and how his statements may have changed over time.
Emily Bazelon [00:26:40] Yeah, that’s a great question. I am also very curious. So Donald Trump went from flirting with the idea of supporting a national abortion ban to saying that he thinks this should be a matter that’s left up to the states. And I think that proved to be a pretty good way of neutralizing this issue for him in his victory in November. The question is, does he mean it going forward? And then even if he does mean it and we won’t get Congress enacting a national abortion ban, there are still really important powers and authorities that the federal government has, especially over access to abortion pills. So the abortion pills, mifepristone and misoprostol both have approval from the Food and Drug Administration, both approval generally, and also doctors can mail them. And that approval could be something that a Trump FDA could try to revoke. Then the other potential weapon here is this law called the Comstock Act. It’s a really old law from 1873. It was passed at a time when people were really worried about obscenity, about the idea that you could have like magazines or even playing cards that had sexual images that were going through the mail. But this law is still on the books. And technically speaking, it makes it a federal crime crime to send through the mail any materials that can be used to have an abortion. So you could have a Trump Department of Justice that tries to enforce that against people who are sending abortion pills through the mail or also through a common carrier like Fedex.
Krys Boyd [00:28:15] Trump at one point endorsed a 15 week national ban, as you mentioned, but then kind of backed off that. In any event, if Congress were to pass a 15 week ban. That’s not the same thing as a guarantee of abortion rights until 15 weeks. Am I correct about that?
Emily Bazelon [00:28:32] Yes, exactly. That would still allow states to ban abortion before 15 weeks. It would just say that nowhere in the country could anyone have an abortion after 15 weeks. That would be a very big deal.
Krys Boyd [00:28:44] 15 weeks. How does that compare with other countries that have relatively recently legalized abortion?
Emily Bazelon [00:28:54] It would be basically more restrictive. You know, often people bring up Europe and they say like, well, in a lot of European countries, abortion is only legal in the first trimester, broadly speaking. But that’s just not really true, because what tends first of all, in Europe, in these countries that we’re talking about, there’s publicly funded health care. And so people have much more access to first trimester abortions for free than they do here. But even setting that aside, in European countries, if you’re later on in pregnancy and you need an abortion, you can almost always get approval to actually have that abortion. In other words, like even if it doesn’t look like it’s legal on the books, the way it actually works out is that people still get the access that they are looking for and want and need.
Krys Boyd [00:29:38] I see. So the idea of the law is to encourage people to do it as soon as possible. But there are some fail safes if that doesn’t happen.
Emily Bazelon [00:29:46] Precisely.
Krys Boyd [00:29:49] Emily, how committed might Trump allies be to making abortion illegal broadly? If it turns out a significant number of Republican voters, as demonstrated by the votes in some of these swing and red states, want to preserve access to the procedure in at least some cases.
Emily Bazelon [00:30:09] Yeah, it’s a really interesting question. I mean, this is just not a popular stance, like a 15 week abortion ban or, you know, a 12 week abortion ban. These things would be radically unpopular, I think. And so it may be one of these issues where, you know, people, Republican members of Congress who have expressed support for such a ban in the past are going to find an excuse just not to enact it. Trump’s opposition will help give them cover. And I think what we’re more likely to see is use of federal regulation, these things that will be harder to explain to people that are used to try to limit access to abortion or, you know, take away more funding for abortion or for an organization like Planned Parenthood. Those are probably the kinds of tools that the Republican Congress and the Trump administration are more likely to use.
Krys Boyd [00:31:01] Can people who receive government funded health care like Medicaid, does that pay for abortions now where it’s legal?
Emily Bazelon [00:31:09] No, No. Medicaid since the 1970s, because of something called the Hyde Amendment that Congress has enacted over and over again, Medicaid does not pay for abortions. There are some states that use their own state money to provide funding for abortions for low income people, but it is not federal funds. That’s against the law.
Krys Boyd [00:31:31] Have Trump or prominent Republicans in Congress floated any specific measures to help people who are compelled to carry an unwanted pregnancy to term?
Emily Bazelon [00:31:43] I mean, I don’t think so. Not really. It’s possible. There are some some small example of this I’m not aware of. But, you know, in general, a kind of critique of the anti-abortion movement is that in the states where there are abortion bans or severe restrictions, there tends to be less support for health care for poor women. Right. So you see lots of places called crisis pregnancy centers that offer free ultrasounds or maybe diapers for a year. But, you know, they don’t really provide the kind of social welfare safety net that it takes to raise a child. And that’s a real contradiction and inconsistency among, you know, abortion opponents to or at least within the Republican Party. And it’ll be interesting to see whether that starts to change as there are more and more people who probably will be carrying babies to term that they didn’t necessarily feel prepared for.
Krys Boyd [00:32:38] So obviously, the Dobbs ruling stopped short of ending abortion outright in every state. What’s the possibility that some case could in the future come before the high court that results in an explicit national ban on the procedure in every form?
Emily Bazelon [00:32:56] You know, I mean, if Congress were to pass such a ban, there would probably be a challenge to it. There also is the possibility of Congress passing something that would protect fetal rights in the Constitution, that would ostensibly make abortion the equivalent to murder. Because if a fetus has the same human rights as a person, then there would be no reason. You know, even if a woman’s a mother or parent’s health life was at risk, there would be no reason to choose the the parent over the child. So those are the kinds of more dramatic answers to the the question that you’re asking, which is basically, you know, there’s since Dobbs the number of abortions nationally has actually gone up slightly. And that is even been true in most red states that have abortion bans. It’s this surprising undercurrent of this decision. People are finding their way to either travel or receive abortion pills despite these bans and laws. And I think the big looming question for the Trump administration is whether they’re going to try to shut down on that kind of access, because that really would be a huge sea change in the lives of a lot of Americans.
Krys Boyd [00:34:08] I suppose in some ways it doesn’t matter. It doesn’t matter that many people have observed, as you did, that you know, Joe Biden is sort of politically nominally in support of abortion rights, but he seems deeply, personally uncomfortable. He is a practicing Catholic, Donald Trump. It’s hard to say what his personal feelings are. What do we know about, you know, politicians speaking about like their personal thoughts and values as opposed to siding with what appears to be either party’s position on this issue?
Emily Bazelon [00:34:40] Yeah, that’s a really good question. I mean, one gets the sense with Trump that he was very transactional about the movement to oppose abortion, valued their support, especially when he ran for the first time or the second time when he won for the first time in 2016. And really need to deal with them about the Supreme Court. Right. A deal that he followed through on. I mean, he appointed three justices who voted to overturn Roe versus Wade. So that was very much a step he was willing to take. But now the question is like, what does that translate into next? And I think that is much more complicated because of these issues we’ve been talking about, like how far do you get from public approval? I would say that it doesn’t seem like Trump cares a whole lot about banning restricting abortion. Right. It’s not something he, like goes on about at rallies the way he does about closing the border, for example. And so if he’s going to take a big hit in terms of popular opinion, that might make him unwilling to go along with a step the anti-abortion movement wants to take. So then the question becomes like, okay, well, what could he give them that people don’t really notice? Or that is is popular enough or just kind of under the radar enough that that it doesn’t cause a big popular backlash?
Krys Boyd [00:36:05] Do you happen to know, Emily, whether support for abortion rights or opposition to abortion tracks at all with socioeconomic level? I mean, it occurs to me that if someone lives in a state where abortion is broadly illegal but has a certain amount of money and suddenly finds themself in a position that they never thought they’d be in, they can, you know, get the resources to travel across state lines or to obtain medication. That may not be true for everyone. So I’m just I’m just wondering whether or not people vote based on whether they think it would matter that much if their state didn’t allow them to have an abortion locally.
Emily Bazelon [00:36:43] Yeah, that’s a great question. I mean, one way to think about this issue is that the American electorate is very polarized along educational lines. And so what I mean by that is that there’s much more support for Donald Trump among people who did not go to college and much more support for Democrats. And in the last election for Kamala Harris, among people who did go to college at the same time, when you look at particularly women who did not go to college, they actually are majority in support of protecting abortion rights. So that’s where you see a kind of like disconnect between a vote for Trump, a vote for Republicans versus their sense of what’s at stake. On on issues of reproductive rights. And then there’s just this question of like, how does that translate into their thinking at the ballot box? I also think you’re right. I mean, lots of abortion providers will tell you that even people who protest outside their clinics, when push comes to shove, if they have a child or a friend who needs an abortion, they’ll often in their heads find a way to make an exception to their general opposition and support an abortion in a particular circumstance. I think that’s just like the trickiness of this issue that, often people feel like other people are doing something sinful, but they understand why someone they know and care about would need this.
Krys Boyd [00:38:06] Yeah, it’s really interesting. And, you know, it’s not limited to abortion, right? People might think all kinds of things are generally wrong, but when they’re in that situation, they’re like, but but I know all of the back story here. And therefore, this thing that I otherwise oppose is justifiable.
Emily Bazelon [00:38:22] Right. It’s a very human kind of way of thinking. It’s true.
Krys Boyd [00:38:27] Going back for a minute, I mean, the fact that the Comstock Act is raising its head again after having been passed, you know, 150 years ago is is really extraordinary. Would reviving the Comstock Act in some way make recipients of abortion medication by mail in places where it’s not otherwise available, subject to criminal charges?
Emily Bazelon [00:38:51] Yes, it could have exactly that effect. It is a crime to send an instrument or a drug used for abortion through the mail and also to receive it. So in theory, you could have a you know, Trump controlled postal service that starts opening up everybody’s mail and trying to prosecute people.
Krys Boyd [00:39:13] What do we know about how abortion advocates and one time abortion providers in states where the procedure is now banned? What are they doing to help people who in the past would have come to them for these procedures?
Emily Bazelon [00:39:28] You know, some people have opened clinics in the borders in other states. So we see new clinics opening in states like Illinois or New Mexico or Virginia to try to serve people who can cross state lines. And then another thing is to try to give information about how you offer abortion pills. There is a network of American abortion providers called Aid Access that is online and know people will send pills into red states. And then there are lots and lots of people who are just sort of like a kind of gray market for abortion pills. And, you know, if you Google or you go on Reddit, you can find them and you can get this medication. And that’s been a really, you know, significant channel of access and stops.
Krys Boyd [00:40:18] I’ve read pieces here and there. I honestly don’t know how common these anecdotes are. What do you know about women who say they’ve experienced miscarriages being investigated as perhaps having sought abortions in places where abortions are not legal?
Emily Bazelon [00:40:35] Yeah, I mean, that can happen. It doesn’t happen very much, but it doesn’t happen zero times either. Sometimes what happens is that someone who is already in some dire circumstance, you know, someone who is using drugs, for example, who’s vulnerable for that reason. But it is true that, you know, prosecutors can feel some suspicion. You know, think they hear something about someone having a miscarriage, deciding that that was deliberately induced in some way that violated their laws. So that possibility of criminal liability kind of floats out there. When you have abortion, that.
Krys Boyd [00:41:17] In terms of government intervention, Emily, I’m wondering if there are parallels in any other aspect of medicine, like there are procedures that some people think are perfectly fine, some people might think are unnecessary or immoral. Like if you want to talk about cosmetic surgery, are there places in the country where someone has stepped in to try to prevent this? Because it comes with risks. It seems immoral. It’s a waste, that kind of thing.
Emily Bazelon [00:41:44] Well, I mean, the bans on youth gender medicine are bans on. Right. That’s like a form of medical treatment. Now it’s about kids rather than adults. So that’s a distinction here. But in general, states have a lot of leeway to do what they say is going to protect the public health. What protected abortion rights under Roe versus Wade was this other notion that the 14th Amendment, which is part of the Constitution and protects liberty and due process of law, that that stood in the way of the states banning abortion. And now, the Supreme Court has taken that away. And so it is possible that states will be able to ban other kinds of medical procedures. And actually, the Supreme Court is going to hear a case about a Tennessee ban on youth gender medicine in December and probably rule on that this year. So this whole question of what kind of legislation, what kind of rules the laws states can make about medicine is going to continue to develop.
Krys Boyd [00:42:45] So I understand that. I’m not asking you as a journalist to articulate your personal position on this, Emily, but I am curious if you think there is some policy, some way of ruling on all of this that would put this issue to rest forever? Like, is this something that as Americans, we are likely to be arguing about regardless of of which direction the law leans forever?
Emily Bazelon [00:43:11] It’s such a good question. I mean, I feel envious of the Europeans in some way because, you know, outside of Ireland, for example, abortion just has not been the same kind of like disastrous wedge issue that has been in the United States. They just were able to say like basically abortions always protected in the first trimester. And then we’re not going to, like talk too much about what happens after that. We’re going to mostly accommodate people who need abortions, but we’re not going to like make a big absolutist thing of it. And for whatever reason, that just has worked better in terms of not being as disturbing to their politics as as it has here. It’s hard to imagine at this point, you know, how we would get to that kind of a universe because we’re so used to politicians taking absolute stances on either side and thinking of this issue as like looming very large in American politics. And I think abortion bans, if anything, kind of contribute to that. But it would be really, I think, a better political universe if this this issue just like kind of simmer down and just like was got less attention. Maybe. But but again, like that seems kind of impossible. And obviously there would be downsides to it as well.
Krys Boyd [00:44:34] Emily Bazelon is a staff writer at the New York Times Magazine, where you can find her article, “America’s Split Screen on Abortion.” Emily, thank you so much for the conversation.
Emily Bazelon [00:44:43] Thanks so much for talking to me about it.
Krys Boyd [00:44:45] Think is distributed by PRX, the public radio exchange. You can find us on Facebook and Instagram and wherever you get podcasts, just search for KERA Think. Again, I’m Krys Boyd. Thanks for listening. Have a great day.
