Comings to term: America’s abortion-rights rollback

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Hello and welcome to the Intelligence from the Economist. Today from London, I'm your host Jason Palmer. Every weekday we provide a fresh perspective on the events shaping your world. We're dedicating the show today to America's overturning of the landmark Roe vs Wade ruling on the right to abortion. We look at a country convulsed by the decision and speak with a woman whose life was saved by a procedure that may now be under threat. And our Supreme Court supremo explains how the almost 50 year old precedent was thrown out against the evident will of a majority of Americans. It's been a weekend of upheaval in America after the Supreme Court's decision on Friday to strike down Roe versus Wade.

Let me just repeat that because it's.

A huge moment for the United States. The Supreme Court of the United States has overturned Roe vs. Wade, the abortion rights ruling.

The case involving the state of Mississippi was called Dobbs vs Jackson Women's Health Organization. The court's view is that America's Constitution does not, in fact, explicitly protect a woman's right to abortion, as Roe vs. Wade had held. Though far from a surprise, the ruling sent shockwaves around the country.

No freeze, no justice, no police, no justice.

No justice, no justice. On the streets, emotions were high with protesters lambasting the decision and anti abortion activists cheering a long awaited result. It's just one sign of divisions that have been exposed by the decision. Without federal protection, abortion legislation is now a matter for the states, many of which immediately made abortion illegal.

For example, in Kentucky, Louisiana and South.

Dakota, it happens immediately.

Then we move to a second group, the next level.

Abortion bans to be enforced 30 days.

After Roe is overturned. That includes Idaho, Texas and Tennessee.

And then come a half dozen states.

Plenty more changes both to expand abortion rights in some states and to crimp them in others will spill out soon. People in permissive states are offering their neighbors aid. Demand for medication that induces abortion has soared. America's found a way to become yet more divided, creating new risks to the health of some of its most vulnerable citizens and raising worry about the health of its judiciary.

It's enormously significant that Roe versus Wade has been overturned. This is a subtle law that women in America have relied on for nearly half a century.

Meehan RIDGE is our U.S. social Affairs Correspondent.

And the effects of overturning it are going to be long lasting and dreadful.

And what's the immediate reaction?

Ben so people have been coming out on the streets of big cities to protest and of course, some to celebrate. There's been widespread condemnation from many women, including politicians. Nancy Pelosi, the Speaker of the House, called it a slap in the face for women. Elizabeth Warren, a Democratic senator, told ABCs this week that it called into question the Supreme Court's very legitimacy.

This court has lost legitimacy. They have burned whatever legitimacy they may still have had.

But obviously there are also those who welcomed the ruling, such as Governor Christy Noem of South Dakota, who said it was wonderful news in the defence of life, every life is precious and that the Supreme Court decision would fix a wrong decision that was made in many years ago and now give power back to the states. However, I think it's important to add that the end of Roe v. Wade has been expected for quite a long time. It hasn't come as a shock and I suspect that the response may be more muted sooner than it otherwise would have been.

But what about the legal standing here? What's changed in the legal landscape now that this decision has been reversed?

Most immediately, abortion is going to become illegal in the 13 states that have trigger laws. In a small number of states, there are no exceptions for pregnancies that arise as a result of rape and incest. Kentucky and Arkansas are among those states. Then another dozen or so states are expected to either reinvigorate pre Roe bans that were in effect before 1973 or pass new ones. The effect of all this will be that about 36 million women will live in states in which the right to terminate a pregnancy has disappeared or will be severely curtailed or will do very soon. There are other effects of overturning Roe versus Wade. Some states are doubling down on the cruelty. Missouri has tried to pass a law that would prevent women from traveling to other states to get an abortion. In the most extreme states, the abortion regime will be more stringent and austere than in parts of Pakistan and Saudi Arabia, which permit the procedure to preserve the health and not just the life of the mother.

So what impacts do you expect that will have on American women?

The effect of having different states with different laws basically means that the heaviest burden will fall on low income women who already have very poor access to healthcare, including contraception, which makes unintended pregnancies more likely. Those women will have to travel further to states where abortions are permitted, which will cost them a lot of money, a lot of time. And one of the most perverse effects of Roe is that this will have the effect of pushing more abortions later into pregnancy, where they become more dangerous and complicated and traumatic. And some women will fail to have an abortion at all. The women who fail to have an abortion at all are likely to be the poorest women who find it most difficult to afford the time and the expense of arranging a long journey to get an abortion.

So it seems clear that there is a straightforward implication here for women's health.

Ending Roe is very likely to push up America's maternal mortality rates, which are already the highest in the industrialised world. So Mississippi, for example, which provided the case that the justices used to overturn Roe, has a maternal mortality rate which is much higher than the average in America. And another very sobering fact is that black women are three times more likely to die in childbirth than white men in America.

And so what happens now? This is a big ruling, but the battle is clearly not over.

So decisions on abortion are now down to the states. And the effects of overturning Roe versus Wade is that there is going to be much greater polarization between the states. Dozens of elected prosecutors across the country and a number representing blue cities inside red states have pledged not to press charges against patients or providers over abortion. In the longer term, the obvious solution would be for the Congress to codify right to abortion. Joe Biden has said abortion's on the ballot from the midterms, but passing such a law is impossible right now. Even so, in the light of this ruling, there are immediate measures that the government could take to safeguard the reproductive rights of American women as much as it can.

And what are those immediate measures?

The most powerful weapon in the fight to retain abortion access is abortion medication, which women can take at home very safely in the first 11 weeks of pregnancy. It's cheaper and much more practical than going to a clinic. And women can order the pills from overseas. They don't even need to have the involvement of American doctor. Although I should point out they're breaking the law by doing that.

They.

In 2021, the Food and Drug Administration dropped a requirement that forced women to collect one of these pills in person from a healthcare provider, and use of this medication has consequently risen. But still, the FDA puts these unnecessary obstacles in the way of women who want to use them and doctors who want to provide them. So those who want to prescribe the drug, doctors and nurses must register as certified providers and patients have to sign an agreement to it would be even better if the FDA were to allow the sale of abortion pills over the counter. The other obvious step would be to expand access to contraception. You know, in America, increased use of long lasting methods like IUDs has helped cut the abortion rate a lot in recent years, but America still has a higher unintended pregnancy rate than most Western countries. When Donald Trump was president, a rule that prevented clinics involved in abortions from receiving funding for Title X, which is the main federal family planning program, that sharply reduced access to contraception, and the Biden administration scrapped that rule. But some conservative states have tried to continue to defund groups like Planned Parenthood that support reproductive health, and I'm sure they'll step up those efforts in the wake of Roe being overturned. So that's certainly an area for the administration to focus on.

Thanks very much for your time, Meehan.

Thank you very much, Jason.

The reasons that women choose to have an abortion are myriad and personal, but the Supreme Court ruling means that in some states, women who need an abortion to protect their health or their lives because a pregnancy is not proceeding normally would be unable to get one. And it's also opened up questions about just what constitutes an abortion. Medical interventions offered for incomplete miscarriages and ectopic pregnancies often involve the same medications and procedures used for abortion.

Hi, I'm Bethann Ingracia. I'm 36 years old and I'm a speech language pathologist.

One of our show's editors, Kim Kittleson, spoke with Bethann about her experience with a procedure that could now be in a gray area in some American states.

In the wake of the Dobbs decision on Friday, many women I knew took to social media to express their outrage and share their stories of the abortions that saved their lives. One that stood out to me was Bethann's. She posted a photo of her tear filled eyes above a blue surgical mask and the caption moments after finding out my long awaited pregnancy was ectopic, she followed up with another photo after I had surgery to remove my fallopian tube. And because all of this had happened during the pandemic in the autumn October 2020, I had had no idea what happened. So I rang her up.

Hi, Kim.

Hey, Bethann. How are you?

I'm good, thanks. How are you?

Thanks so much for speaking with me about this. I know it's really hard.

No, of course. I'm glad you contacted me.

Bethann told me that she'd been trying to have a baby for over a year. Eventually, her and her husband went to a fertility doctor.

I had unexplained infertility, so everything looked good, but it just wasn't happening. After some tests, we tried an iui, an intrauterine insemination, and that one. The first one didn't work. The second one, I got a positive pregnancy test. So I was so excited. I. I mean, I told people right away because I'd been trying for so long. At that point, I was overjoyed. I was so happy.

She said that after she found out she was pregnant on that Friday in October, she spent the entire weekend telling everyone about it. But then she went in for a scan. On Monday, I was in my fertility.

Doctor'S office to get my first ultrasound. So I was, like, six weeks pregnant.

And he.

He didn't see the embryo where it should have been, so he sent me uptown to the gutter imaging center, and that's where they found out it was ectopic.

An ectopic pregnancy happens when a fertilized egg gets stuck on its way to the uterus. And that fertilized egg, it can't survive outside the uterus. And if it's left to grow, it can be life threatening to the woman, which is what Bethann's doctors told her right before they sent her to the emergency room.

I was like, does it have to be now? Like, I didn't really get the urgency. And they're like, yes, you have to go immediately there.

Another scan confirmed that the pregnancy wasn't viable. And that's when she took the photo that I saw on Instagram.

The doctor came in and told me, and then they, like, let me have the room for a little bit, and I took, like, a photo of myself, devastated because I was alone, and I wanted to remember it. And then I called people and just waited in the waiting room with all the. It was the imaging center, where usually there's just a lot of pregnant women who are coming for, like, late third trimester scans and stuff before they give birth. So I was here, like, crying in the waiting room, waiting for instructions.

She said she'd been presented with two options, surgery or treatment. That treatment would involve methodextrate, which was a drug initially used in cancer treatments. But it's now also used to treat ectopic pregnancies. It is also one of the drugs that SB4, that's the restrictive anti abortion law in Texas classes as an abortion inducing drug. That means that many pharmacists there now won't prescribe it.

I was hoping for the surgery because, I mean, the pillow sounded like there could be weeks of waiting to see if it worked. And I thought that that would be horrible. That would be horrible, just not knowing if it worked.

And.

Did you feel like it was an ethical dilemma when they told you these options and what you could do?

No, there was no choice at all. It's like there's a chance I would die and there's, there's no way that this baby, the embryo would ever be viable. So I didn't even think of it in terms of like an abortion or a choice.

After the surgery, Bethann told me she was depressed and anxious.

For months in the er. I told my husband that we needed to get a puppy. And I feel like she. I mean, it was the most devastated, the most depressed I've ever been in my life. And I think waiting for that dog to come kept me going.

Finally, after two rounds of IVF fertility treatments, in January of 2021, she found out she was pregnant. She now has an eight month old daughter. So tell me about your daughter. What's she like?

Oh, she's amazing.

What's her name?

Louisa.

She.

Yeah, I mean, she's like the easiest, most happy, most wonderful baby and I'm. I feel so lucky that.

I was.

Able to have her.

She told me she couldn't imagine what that whole experience leading up to finally having the baby she longed for would have been like had she had to wait or even been denied the treatment for her ectopic pregnancy. And that's why she said she still looks at that photo on her phone, even though it's really painful. I'm curious, why do you think you took that photo when you took it?

I don't know. I just felt I was completely alone in the bathroom of this, this like ultrasound room. And I felt devastated and I'm just alone and I'm. I don't even know if I ever showed anyone, anyone the picture, but I kept looking back at it just to like, remember what happened. And I. When I posted that pictures and stuff on Instagram, I kind of felt stupid because I thought like, of course, nobody, everyone would agree that this is okay, right? Everyone would agree that treating an ectopic pregnancy isn't controversial at all. I don't know. It blows my mind.

Bethann's story represents just one of the many questions now being raised by the Supreme Court's ruling. And just what constitutes abortion versus reproductive health care? Polls have consistently shown that a majority of Americans support abortion rights. So how did the Supreme Court become so out of step with mainstream America? We spoke to Steven Mazzy, our Supreme Court correspondent, to find out.

It isn't unusual for the Supreme Court to hand down rulings contrary to the wishes of political majorities, but its counter majoritarianism has never been exercised with anything like this sheer muscle and let the chips fall where they may attitude to erase such a deeply entrenched and very popular constitutional right. It's not a surprise, exactly, given the draft opinion that was leaked on May 2, but it still is a shock. How did it happen? A lot of work and a lot of luck. As for the work, decades of commitment from the conservative legal movement, including the Federalist Society, to build a roster of potential judges and justices reared on hatred for Roe versus Wade. Donald Trump promising to appoint justices under whom Roe would automatically fall, and the impressively Machiavellian tactics of Republican Senator Mitch McConnell, who steered these highly conservative young lawyers into key seats on the bench, in part by breaking Senate and arguably constitutional norms when he denied Barack Obama a third party Supreme Court pick when Antonin Scalia died ten months before at the end of Obama's second term. And as for luck, the triumph of Donald Trump in 2016 despite losing the popular vote, Justice Ruth Bader Ginsburg opting not to retire when she could have been replaced by a liberal justice, and then dying weeks before the 2020 election. In some ways, it's amazing that it took so long.

And now that it has at last happened, what are the legal merits here? What's the Supreme Court's reasoning for this decision?

The crux of the reasoning in Justice Alito's opinion is that Roe vs. Wade was egregiously wrong when it was decided, because there simply is no fundamental constitutional right to abortion protected under the Due Process clause of the 14th Amendment. Alito writes that before 1973, when Roe came down, most states banned abortion. So the right cannot be said to be deeply rooted in America's history and tradition, and the question should be handled legislatively by each individual state and not settled for the whole country by nine justices. This is an opinion that was joined by Trump's three appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, also joined by Clarence Thomas. There were several concurrences Justice Kavanaugh emphasized what he saw as the Constitution's neutral perspective on abortion. He says it's neither pro life nor pro choice. This is a position which sounds nice rhetorically, but it's generally not how constitutional rights work. It's a bit like justifying separating people by race on rail cars in the 19th century Plessy vs Ferguson decision by claiming that the Constitution is neutral on race. It's neither pro integration nor pro segregation. Just let the states decide.

And the suggestion has been that with that kind of reading of the Constitution that other freedoms, other settled laws, could then be called into question.

Well, this is one of the biggest worries moving forward. Justice Alito insists that other freedoms are not now at risk. He says other implied rights like contraception or same sex marriage or the right to control the upbringing of your children will not be under attack because only abortion involves the question of fetal life. But his reasoning for that doesn't go beyond the tautology that abortion is different because abortion is different. And no matter how emphatic Alito is, the sledgehammer blow to the foundation of the abortion right has got to unsettle others. Alito and Thomas in fact, explicitly called for a reconsideration of the 2015 same sex marriage ruling in a 2020 opinion. And in Dobbs, Justice Thomas wrote a doozy of a concurrence. Making the argument against all decisions that ground rights in the 14th Amendment's due process clause. He wrote, the Court should reconsider all of this Court's substantive due process precedents, including decisions that protect the rights to contraception, sexual intimacy for gay and lesbian Americans, and marriage equality. So many scholars who have looked at Alito's assurances have, I think, for good reason, found them less than reassuring.

And what about how that figures in then, with the Court's legitimacy? I mean, isn't there a danger to having a Supreme Court that is clearly out of step with the majority of Americans?

There is a danger, Jason, and it's not just about abortion. The Supreme Court is making many changes to American law and to its Constitution. As we discussed on this podcast on Friday. It also just offered a new and radical interpretation of the Second Amendment that throws out the method by which every US Court Court of Appeals has examined gun regulations and casts a pall over states trying to pass gun safety laws. Last week, it also took a bite out of Miranda versus Arizona, the famous case that protects criminal defendants. It is dismantling rights that are front and center in the Bill of Rights, too, not just implied rights, but textual rights right there in black and white, the wall separating church and state that the opening words of the First Amendment built has nearly been razed to the ground. And all this is coming from the Supreme Court only because its membership has changed. The dissenters and Dobbs really centered their discussion on this theme. They wrote that it is impossible to conclude that the American public's rights have been expunged for any reason, but that there is a new majority on the bench. This is dangerous territory and it may be a reason the bottom has fallen out from under the court's popularity. It's now at an all time low of just 25%.

So what about remedies then? Is there anything that President Joe Biden or the Democratic Party can do to challenge this ruling? There had been talk of packing the court.

For example, there is nothing either written or implied in the Constitution about the number of seats on the Supreme Court. So court packing, court expansion is technically an option. But despite appointing a blue ribbon commission to study court reform, including court expansion last year, President Biden has said he's not going to go this route. And it's fairly clear that the Democratic leadership in the House and Senate are not interested either. So Biden and the Democrats don't have a lot of good or plausible options for fighting back long term. They could learn from the Republicans on how to campaign on the court and how to make judicial appointments a top priority. But the big picture of the reality is that Republicans have captured the Supreme Court for now and potentially for a generation or more. To change that, Democrats will need both long term strategizing and some turns of good luck.

Stephen, thanks very much for joining us.

Thank you, Jason.

That's all for this episode of the Intelligence. Let us know what you think of the show by dropping us a line@podcastseconomist.com or leave us a rating wherever you listen. We'll see you back here tomorrow. Sam.