Answering immediate questions on abortion rights after the Supreme Court decision
NPR's Elissa Nadworny speaks with Mary Ziegler of the UC Davis School of Law about uncertainties and likely legal battles in post-Roe America.
ELISSA NADWORNY, HOST:
The Supreme Court's landmark decision Friday marks the beginning of a new era, one of unchartered legal territory, as state leaders gain new powers to decide when abortion is permitted and under what circumstances. Here to help navigate some of the many questions and uncertainties raised by the Supreme Court's decision is Mary Ziegler, professor of law at the University of California, Davis. She's written extensively about the battle over abortion. Thanks for being here, Mary.
MARY ZIEGLER: Thanks for having me.
NADWORNY: What are you watching in the immediate aftermath of Roe's overturning?
ZIEGLER: Well, I think there are kind of different layers of conflict we're going to see unfold. So one of the first is whether all of the kind of trigger laws and pre-Roe bans that we know can go into effect will go into effect. Almost all of them will. There are a few questions around the state - constitutionality under state law of a few. And then I think over time, there are going to be kind of purple states, like Virginia or Florida, that are going to introduce more sweeping abortion restrictions. And I think there'll be ongoing questions about how far to go - right? - how far deeply blue states want to go in designating themselves sanctuaries for people traveling from out of state to seek abortions, how far the Biden administration is willing to go in supporting them and how far red states are willing to go to try to close what they would perceive as loopholes in their laws.
NADWORNY: Yeah. On Friday, Attorney General Merrick Garland made a statement indicating that the Justice Department will resist state efforts to ban or restrict abortion pills. How might that play out?
ZIEGLER: Essentially, he took the position that states were not in a position to disagree with the Food and Drug Administration about the safety and efficacy of abortion pills. It suggests that the Justice Department is at least going to do something to assert federal authority to dictate access to these pills. It's not clear to me whether that's going to only be true if states say these pills are not safe or if it's going to be true if states just regulate these pills under the heading of morals regulations about abortion. But we do know that the Justice Department is going to claim that when federal and state laws conflict, federal law should prevail.
NADWORNY: The decision has also sparked speculation around what might be ahead for contraceptives. Do you see a legal fight brewing there?
ZIEGLER: Potentially. I mean, I don't think there will be that many states that, in the short term, actually pass laws declaring that contraceptives are illegal. That said, we've already seen that states have sometimes struggled to clearly define abortion as a term, and maybe potentially by design, because, of course, we know from the fights about the contraceptive mandate of Obamacare that there are some religious believers and conservatives who believe some common contraceptives to be abortion-inducing drugs. So I think there'll be a live question in states that don't clearly define abortion about whether they, in fact, sweep in things like IUDs or emergency contraceptives.
NADWORNY: So, Mary, is this the last we're going to hear from the court on other rights?
ZIEGLER: So on the one hand, we have the majority and Justice Kavanaugh telling us that this is the end of it and that the right to abortion is different. Justice Alito and his majority emphasizes that, in his view, only abortion involves the taking of a human life and that other constitutional rights, whether that's same-sex marriage or contraception, do not. And then Justice Thomas, of course, I think, says the quiet part out loud and says, in fact, not only could the court do these things, but, in fact, logically, it should, given the reasoning of the majority in what Thomas sees as the flaws of substantive due process - that whole kind of body of law about implied rights to privacy. It's notable, of course, that Thomas calls out specific rights - same-sex marriage, same-sex intimacy and contraception. And I think those are the areas where we would expect to see the most potential movement going forward.
NADWORNY: This issue has long been framed by abortion rights opponents as something that should be left to the states. But the National Right to Life group recently released, quote, "model legislation" that it wants to push to states. Is trying to flip states where abortion is legal the new battleground?
ZIEGLER: In some cases, right? I mean, I don't think that the National Right to Life Committee is going to have success in California or New York. I think that's why you see a lot of focus on battleground states. Of course, no one on the anti-abortion or pro-life side or, frankly, really the pro-choice or abortion-rights side wants this left at the state level. We've heard Republicans suggest that if they gain control of the House, Senate and White House, they intend to pass a national statute banning abortion. We know, as well, that folks in the pro-life movement have a constitutional argument that abortion in blue states violates the Constitution. So this effort to propose model legislation - that's just the start of this.
NADWORNY: What about legal action against doctors working in states where abortion is legal? Might doctors be targeted for treating out-of-state patients?
ZIEGLER: So there's likely to be an effort by red states to stop abortions for their citizens happening outside of their borders by trying to either allow lawsuits against or criminal punishment of doctors in blue states. Whether that's going to work is an entirely different question because there's so many complicated and really underdeveloped areas of the law that come into play. There's constitutional questions about the right to travel, and there are even questions about extradition, right? So if Alabama says, we want you to send us that doctor, does California have some kind of obligation to comply? And one of the reasons the answers to these questions are so uncertain is because we really haven't been in a situation where states have clashed about that kind of question since the 19th century.
ZIEGLER: So the kinds of authorities we're consulting are literally hundreds of years old. But one thing we can be sure about is if those conflicts play out in the way red states are telegraphing, the Supreme Court won't be out of this business at all. Many of those questions would end up right back at the court.
NADWORNY: States with abortion bans have typically focused on punishing those who help people get abortions rather than those seeking them. Could that change?
ZIEGLER: Potentially, right? I mean, the National Right to Life Committee model that we mentioned earlier responds by dramatically expanding the universe of people who are considered to have helped abortions, including folks, for example, running websites detailing how you could get a self-managed abortion. But I think that the trick is that many of them are not going to be located in red states. And so it's going to be much harder for red states, in the case of a self-managed abortion, to find anyone else to punish other than people having abortions.
So just imagine with me, someone orders pills online. Those pills come from Europe, and the pharmacy that delivers the pills is in India. The state, in some instances, is going to have a choice between punishing no one and punishing that person. And we know that there's a rising movement - it's a minority in the anti-abortion movement now but more influential than it has been - called the abortion abolition movement that calls for the punishment of women and pregnant people. And that movement may be ascending, partly because, in the case of self-managed abortion, it's going to be hard for some legislators to figure out what to do.
NADWORNY: Mary Ziegler is a professor of law at the University of California, Davis and author of the new book "Dollars For Life." Thanks for being with us, Mary.
ZIEGLER: Thanks for having me.
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