Abortion is not always a clash of absolutes

Candis Watts Smith takes a turn in the interviewer's chair this week for a conversation about abortion and American democracy following the passage of SB8 in Texas and the Supreme Court's response to it. Like a lot of things in American democracy, it's complicated.

As Candis says in the episode, it isn’t typical for us to discuss “hot topics” or policy matters, per se, on Democracy Works. But, this policy and the Supreme Court’s response to it throws a great number of matters related to democracy into relief, including federalism, the role of the Court to protect and uphold the U.S. Constitution and constitutional rights, state politics as a laboratories of democracy and policy innovation, and partisan strategies to create the country in their ideological image.

Candis talks with Rebecca Kreitzer, associate professor of public policy at the University of North Carolina at Chapel Hill and an expert on gender and political representation, reproductive health policy and political inequality.  Rebecca was one of our first guest on Democracy Works back in 2018 and we're thrilled to have her back for a second appearance on this critically-important topic.

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Rebecca Kreitzer on Twitter

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‍Jenna Spinelle 00:03
Hello, and welcome to Democracy Works. I'm Jenna Spinelle, and today I am turning over the interviewer chair to Candis Watts Smith. I am very excited for this conversation on abortion. Politics is something that has certainly been in the news a lot these days, and I don't want to take up any more of Kansas his time. So, Candis, the floor is yours.

Candis Watts Smith  00:28
Great, thanks, Jenna. Over the summer, Texas passed a law on abortion that went into effect on September 1. That law is known as SB eight. And it is I think, the country's most extreme abortion policy banning abortions in the state of Texas after six weeks of pregnancy. It isn't typical for us to discuss hot topics or kind of very specific policy matters per se, on democracy works. But this policy and the Supreme Court's response to it throws a great number of matters related to democracy and to relief, including federalism, the role of the courts to protect and uphold the US Constitution and constitutional rights, state policies and politics has laboratories. partisan strategies to create the country in their own ideological image, and today to do all of that, some of it may be I'm thrilled to interview Rebecca Kreitzer, my disciplinary colleague, my co author, my work wife, she is Associate Professor of Public Policy at University of North Carolina at Chapel Hill and is an expert of many things, including state politics, social policy in inequality, reproductive health policy. She is also an expert, Baker and crafter, you should follow her on Twitter for all sorts of matters related to policy inequality, teaching, and she was a guest on democracy works long before I joined the team. Welcome back to democracy works, Rebecca.

Rebecca Kreitzer  02:11
Thanks for inviting me, it's a delight to be a repeat guest.

Candis Watts Smith  02:14
I want to just get us started. And I want to kind of break this conversation down in two sections. First, let's just do nuts and bolts. our listeners are incredibly astute. And so I think that they're going to know a lot of the basics, but just so that we're all on the same page. Can you tell us about the major components of Texas's policy?

Rebecca Kreitzer  02:38
Sure. So I'll start by saying that Texas is not the first state to pass a law that would prohibit abortions at the sixth gestational week of pregnancy. But all of the other states that have passed that type of policy have had it struck down by the federal court system for being blatantly unconstitutional. Under current precedent, which would be Roe versus Wade, and Casey versus Planned Parenthood. There's kind of an interesting twist about this policy. So here's the origin story. This policy is based off of model legislation crafted by faith to action, which is an interest group that that is really focused on these heartbeat bills. The founder of it is a woman named Janet Porter, who is very involved in the Ohio right to life committee before she became involved with heartbeat bills across the country. What's interesting about this bill is that usually when there is a law, the enforcement happens from the state. Usually the state's attorneys, generals or the executive branch enforces the law. But in this case, the law was written strategically to evade constitutional oversight from the Supreme Court. So what they did was instead of having the enforcement be through the state government, the law actually says enforcement can be by anybody except somebody who is affiliated with the state. Instead, private enforcement is the mechanism here. So what the law says is that anybody can be sued by another private citizen, if they have been involved in aiding or abetting an abortion after six weeks of pregnancy. What it allows is for anybody to be sued from your Uber or Lyft driver to your neighbor to a nurse, except the person who, except the pregnant woman or person who's having an abortion, and the key here is that it's a privatization of the public enforcement of this law.

Candis Watts Smith  04:38
Okay, so, as you've mentioned, other states have made an effort to shorten I guess the time made available that a person can get abortion. In fact, Mississippi will eventually go to the Supreme Court about a 15 week abortion ban, but this policy is able to slipped through the hands, or rather, five out of six of the conservative Justices of the Supreme Court, Alito Thomas and then the three Trump appointed justices Cavanaugh, Barrett and Gorsuch essentially say, we don't know who or what is responsible for making this law go. And therefore, we're not going to do anything because we don't know what to do. Is that right?

Rebecca Kreitzer  05:31
I think that's a relatively fair interpretation, the unsigned majority opinion, which was released as part of the Supreme Court's shadow docket. So released at midnight on a Wednesday unsigned two paragraph decision from the majority. And the majority opinion basically says, This case has a lot of unusual procedural things, including enforcement. And so it's pretty unusual, we're not quite sure how to handle with it. And so we won't issue this stay before the law went into effect. It's worth noting that the Supreme Court earlier this year overcame some kind of similar procedural questions when they allowed or when they struck down prohibitions on religious gatherings during the pandemic. What I think is interesting here is that we're seeing that conservatives on the bench are kind of bifurcating about what they think the right strategy forward is for restricting abortion access. So in previous decisions, we get the idea that Chief Justice Roberts would be amenable towards allowing restrictions on abortion. But Chief Justice Roberts has also always really cared about court legitimacy. This is the Roberts Court after all, and he is not very comfortable with the way that the majority opinion went down. So in fact, in his dissenting opinion, he says, Yes, there are a lot of kind of procedural questions here. But in this case, it's blatantly unconstitutional following the precedent. So Roberts would have issued a stay until the full legal process went forward. I think what we're seeing is that the other conservative justices on the bench are more comfortable with taking more significant action in terms of restricting abortion access, and they're less concerned about precedent.

Candis Watts Smith  07:23
Okay, so right. I mean, Robert writes, like the desired consequence of this policy appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime. And then the Supreme Court is like, yes, and it's working. So you know, if we were just chit chatting, you know, can

Rebecca Kreitzer  07:46
I pause and add one thing in here? Yeah. So we've talked about a couple of the deset. We've talked about the dissent of Chief Justice Roberts. And actually all of the three liberals also had their own dissents. briars is not that important to talk about, but I think it's worth mentioning, both Sotomayor and Kagan dissents. The Sotomayor is dissent is a scathing rebuke of what happened and she really calls out the court for ignoring precedent. And she in fact, accuses them of burying their heads in the sand, right weakens,

Candis Watts Smith  08:18
flagrantly unconstitutionally

Rebecca Kreitzer  08:21
currently unconstitutional. In fact, the first three sentences of the decision that she writes is all quite strong. I'll just read it because I think it's worth hearing. She says the court's order is stunning. That's the first sentence presenting with an application to enjoin a flagrantly unconstitutional law goes and then goes on to say justices have opted to bury their heads in the sand. I mean, that's a very strong opening in terms of rebuking the majority opinions, actions. Justice Kagan also has an interesting and important dissent, in which she brings up court legitimacy. And and I think that's important to talk about when we're talking about what the role of the Supreme Court is. This type of ignoring of precedent really raises questions about how the Supreme Court will be perceived by the mass public, whether or not the mass public will continue to see the supreme court as a legitimate institution.

Candis Watts Smith  09:17
Right. Did you see this coming?

Rebecca Kreitzer  09:20
Yes, I absolutely did. We've seen that there have been changes in the abortion movement in the last few decades a sharp increase in the number and variety of abortion restrictions. While There has also been an increase in the number of pro abortion rights policies. It's really dwarfed by the advances of the anti abortion rights movement. There have been a number of interest groups that are also very involved in terms of producing model legislation, which is the fill in the blank copy and paste legislation that state legislators often rely upon. And in fact, the interest groups themselves We'll point to their own successes in, in helping to pass helping states to pass these laws. So I mentioned earlier face to action Janet Porter's group that, that wrote this bill, it's worth noting that all the other major abortion interest groups also produce model legislation like Americans United for life that is enacted by a lot of states, they're making it easier for state legislators to enact policies that have been thoroughly vetted by strong legal counsel. I'll also add that in the same period, we've seen an increase in polarization in both Congress and state legislatures. And although the mass public is supportive of legal abortion rights, and I know we'll get into public opinion more in just a little bit, there are electoral incentives for policymakers to take very conservative stances on abortion, in terms of campaign support from interest groups, in terms of rallying up their bases, etc. So, despite the fact that the majority of people see these laws as extremist, there are good reasons why politicians are pursuing these policies. One thing that I personally think is interesting as a scholar of gender politics is to look at the role of women in creating these policies. So when it comes to this law, in particular, we see women running the interest groups crafting the model legislation, we see women who are introducing it in the state legislature. In fact, almost all the republican women co sponsored or voted for these laws. And there's a reason why conservative women are taking a clear stance on abortion, in part because we're seeing fewer moderate women get elected. And apart because conservative women have to fight the stereotype that women are more liberal. So in order to get elected in a republican district, you have to take some conservative stances in order for your issues, your issue preferences to be noted. So we're seeing them take very conservative stances on abortion so that they're recognized as conservatives.

Candis Watts Smith  12:06
I suppose in some ways, that makes sense, political sense. But I suppose it's also worth just noting that abortion rights are necessary for women to be full citizens, and to make a full set of decisions about their lives, education, work, prospects, ability, etc. Am I missing anything on this part?

Rebecca Kreitzer  12:28
Yeah, I would say that reproductive rights are absolutely essential for women's full participation in society, as well as for their economic well being and health. We know, for example, that having control over your entry hood, the timing of your entry hood into Parenthood, is associated with greater stability and satisfaction over your life housing and food security. It allows people to have more work experience, which leads to increased wages and higher average career earnings. So even if you're looking at whether even if you're considering whether or not abortion should be legal with kind of a pros and cons, policy analysis, look, there are a lot of important reasons why legal abortion is a net good.

Candis Watts Smith  13:11
And so on some level, democratic processes, let us hear, right. I mean, the republican party has had a long term strategy to remake the courts for decades. And they did so largely through democratic mechanisms. And here we are. So I mean, of course, there's like the ire of being denied what has otherwise been a constitutional right. Am I missing something here? You know, like, make did they play it for it's played out fairly, they use the law, and they use the mechanisms of democracy to get what they want it.

Rebecca Kreitzer  13:53
I push back on that in a couple of respects. The first is I don't think we've gotten here entirely from democratic means, for example, it doesn't take that long, to look back in history to find the great story of Merrick Garland, who is denied a place on the Supreme Court because partisan dynamics, unprecedented partisan dynamics and the confirmation of a Supreme Court justice, I think we've seen a number of illiberal dynamics that have contributed to where we are today. This is also not democratic in the sense that what the state of Texas is doing is blatantly against the Constitution. Under Roe versus Wade and Casey, we have a guaranteed legal right to constitution. Casey, in fact, says that it should that there should be a right to abortion up until the point of viability. So what's happening in Texas is anti democratic in the sense that it's going against what the Supreme Court precedent says, and then the Supreme Court has decided that it can at least go into effect temporarily. The court was careful to say we're not technically ruling on the constitutionality of it. So I don't think this entire process has been by the books.

Candis Watts Smith  15:03
We're not banning abortion. But the fact of the matter is, is that the way that the law is played out is that most abortions are banned under this law, and because the Supreme Court hasn't done anything.

Rebecca Kreitzer  15:18
Yeah, I think this was a good time for me to chime in and say that, looking at the Texas policy evaluation project, they found that in recent years, 85% of abortions in the state of Texas have occurred after six weeks. So what we're talking about is really a significant decrease in the number of abortions. I also want to take the moment to just inform people about some basic facts about biology when it comes to pregnancy. So the first thing is that this law is, goes into effect around the sixth week of gestation, but that doesn't necessarily mean six weeks pregnant. In fact, someone can be several weeks less pregnant than that. So it's also important to look at this law, in combination with biological realities, as well as with what other laws are in the on the books right now.

Candis Watts Smith  16:07
You know, I mean, this is kind of maybe a side note, an insider, between the two of us is that, you know, you remember when I had an ectopic pregnancy. And you're you reminded me of the time that lawmakers tried to make people re insert on viable fetuses back into into a uterus, that that's not where it was in the first place. Right, which just reveals the extent to which our many lawmakers are just unaware of how the human anatomy works, and yet have the power to make decisions about right or wrong. I remember that time that that that? I don't know who it was, but he was just kind of like, yeah, if a woman is great, there's like forces in her body that will prevent that. And that will just shut it all down. Yeah, shut it all down. Right. And so, you know, one, I like text you one day to say like, hey, maybe we should do a survey. And as policymakers, if they actually know how the human anatomy works,

Rebecca Kreitzer  17:20
They wouldn't do very well with it. When when I started to see state legislators introduced bills that would require that ectopic pregnancies be re implanted in the uterus, which to be very clear is science fiction. Right now, there is not a medical procedure in which that is currently possible. It hasn't stopped legislators from introducing policy that would require it. Why? Because legislators haven't historically been beholden to science. In fact, even just within the abortion debate, about half of the states have state mandated scripts that require doctors to tell patients seeking abortions things that are factually inaccurate. For example, one common mistruths that state legislators require doctors say is that abortion is related to breast cancer, which is a claim that the American Medical Association, the American Cancer Association, say is not based on reality. In fact, the relationship is that breastfeeding is associated with breast cancer, and that people then kind of construe that. And legislatures have considered that to mean that abortion, which would presumably make someone less likely to breastfeed, causes breast cancer. It's also worth noting that most people who have an abortion are mothers or will become mothers. And so that the presuming that somebody who has an abortion won't breastfeed isn't even true from that sense. So even though these are well documented medical inaccuracies, they still are embedded in law in a lot of states,

Candis Watts Smith  18:52
From what you're showing, or, you know, what you're saying here is that there is a gap between facts, science, and what many conservative legislators are putting on the table regarding abortion policy, but there also seems to be another gap, which is the policies that are being made and what political, what public opinion is asking for. So you know, like, most people, I mean, there are a lot of people in Texas, right, that say that laws should be stricter, but most say that things should be less strict or should be left about the same. You know, how do you make sense of the gap between what the public wants and what they're getting?

Rebecca Kreitzer  19:41
Public opinion on abortion is somewhat unique among public opinion research in that question, wording effects have us hugely substantial effect and how people answer those questions. So you mentioned that there's a poll question that people often get asked which is do you think The laws should be stricter, or less strict or easier or harder to get an abortion. Well, I've done some research and survey research and asked people about what abortion laws they have in their states. And people don't know which laws they have in their states. And so how can we trust their answer of should it be easier or harder? public opinion on abortion is really interesting, because it shows that abortion is a complex issue. It's not the issue is not that easy issue morality policy, that the kind of earlier abortion political science research claimed it to be. In fact, what we find is that most Americans think that abortion should be legal, with some restrictions. The other thing I'll add to this is that most Americans are strongly against one aspect of this Texas bill, which is that there are no exceptions for rape or incest. The vast majority of Americans strongly support having exceptions for rape, incest, and to protect the mother's health and well being in a more expansive sense than how it was articulated in this current law.

Candis Watts Smith  21:07
Okay, at this point, we see that the public is not getting what they want through democratic means, or through their kind of political representatives. And in the past, in the recent past, even we've kind of see the private market do the work that maybe courts should be doing? Do you think we're gonna see this play out here? You know, for example, the thing that I'm thinking of is like HB two, in North Carolina, the bathroom bill, the bill known as the bathroom bill, legislators caught hell for that. And right, because, you know, the NCAA and other companies were threatening to not come to the state and, you know, people were using companies and corporations to speak with money for them. Do you think that maybe this is, I don't know, new strategy new way.

Rebecca Kreitzer  22:08
I think that's an interesting comparison. And it's certainly one that I've been thinking about as well. A couple of weeks ago, when the Texas Legislature passed the long awaited voting rights bill, that they'd been trying to pass for a while, we saw that a number of very large corporations and companies took strong stances and called out a state of Texas for their actions on voting rights, including major airlines, and just a very diverse amount of debate, diverse types of companies became involved in doing that. We have seen a few companies come out against this new Texas law, but the most prominent of them are companies like Uber and Lyft, whose drivers could be sued under this new law. And so those two companies came out and said that they would protect their drivers and that they do not support the sharing of private medical information of other people. But we haven't seen the large scale response that we saw after the voting rights case, I suspect it's because a lot of companies don't want to wade into the hot button issue of abortion. And of course, voting is a hot button issue too, but not in the same way that abortion is. And although I tend to think that abortion isn't the quintessential morality policy of the earlier political science literature, I do think that one aspect of that is still really important to reflect on, which is this idea that people are less likely to stand up for sin. It's harder for companies and for individuals to be strongly supportive of abortion rights, they get worried about that. And so it tends to be easier for companies to speak out against it or against abortion, rather than it's in support of it. So that's definitely something that I'm watching. Over time, will we see more companies that are waiting in? And also is the level of backlash that we're seeing right now sustainable? So will Uber and Lyft continue to stand in opposition to this? Will the mass public continue to pay attention to it?

Candis Watts Smith  24:16
Okay, so the private market is not going to save us on this. The Supreme Court at this point is not going to save us on this. So it sounds like states are going to get the signal that this is what they can do you study policy diffusion. What's your expectations?

Rebecca Kreitzer  24:37
I anticipate that this law will be enacted in many states in the near future. We've already seen a handful of states say that they're planning on adopting copycat versions of this law, including some of the states that have previously passed other six week gestational bands. This is in part because of model legislation, in part because people are seeing that it works. In fact, there's a number have other scholars who have found that states are more likely to enact abortion policy, when the federal courts have allowed or, you know, have allowed them to pass judicial scrutiny. This Texas case is a little bit uncertain, in that the Supreme Court has said, We are not saying that this is constitutional or not, they kind of are holding off on ruling on that. But nevertheless, I think the mass public and legislators are interpreting this as the tea leaves of what's to come on abortion. So as state legislators see, oh, this is a mechanism that works to really ban most abortions, I think that we will see it spread very quickly among conservative states that are interested in restricting abortion.

Candis Watts Smith  25:46
Well, I mean, the other thing that comes to mind, as you were saying, that is the supreme court is holding off. But in the meantime, the effects are already in play.

Rebecca Kreitzer  25:55
And it'll raise a lot of deep reckoning questions for the Democratic Party. What do we do in the face of this? When corporate as you were saying earlier, corporations are not going to fix this problem, the Supreme Court seems to be indicating that they will allow these policies to go into effect. It's going to make questions about the filibuster and court packing, relevant in a different way, even more than they were during the election. Of course, leading up to the election between Trump and Biden, there was a lot of talk about filibustering and court packing, but it felt like an intellectual argument, a debate about is this something that could be done? What do we think about this as an idea? I think that if the Supreme Court continues in the direction that they're going, it's possible that more people will be comfortable with the idea of increasing the size of the Supreme Court, or getting rid of the filibuster?

Candis Watts Smith  26:53
So you know, I guess one thing, I suppose in some ways, I have framed this from my perspective as being quite anti democratic. But, you know, some people have made the argument that abortion should have been passed through a more democratic means in the first place, through the state's, you know, through state legislatures, as opposed to through the courts. What do you make of it? I mean, you know, first I want to weigh that abortion rights were constructed make things more difficult when these challenges come up.

Rebecca Kreitzer  27:30
First, I want to disavow people of the notion that these restrictive abortion policies are being pursued or advocated for by conservative white men. In fact, what we're seeing in recent decades is an increase in the role of conservative women in crafting these policies. But to the broader point about is, are we in the mess that we're in because of how abortion rights are constructed? I think that there is something to that. So as you know, the legal right to abortion is not explicitly stated in the Bill of Rights. Instead, it was based on Griswold versus Connecticut, which is a Supreme Court case that has to do with contraception for married couples, and then a Penumbra of a right to privacy that comes from across a number of amendments in the Bill of Rights. And many people think that that is only tenuous because it's not explicitly made. Of course, there are many people who challenged this idea of a number of rights implied in the Bill of Rights. To that end, many people have suggested that the best way to enshrine abortion rights is to pass a constitutional amendment or to pass laws in Congress that make that abortion right clear, though with the supreme court the way it is right now, I think that law in Congress probably wouldn't be sufficient. Does that mean we need a constitutional amendment to secure the right to abortion potentially,

Candis Watts Smith  28:58
in the meantime, if people wanted to use their own kind of political prowess, their own social capital to make the change that they want to see? What would be some of those things?

Rebecca Kreitzer  29:16
Well, I think that it's important that there be a continued and sustained public backlash against these laws. When we think about the issue of abortion, it's easy to think of it as being what Supreme Court scholar Lawrence tribe called the clash of absolutes, that people are always against abortion are always for it. But the vast majority of Americans are in the middle. So I think it's important for the people who oppose this law, to have a sustained backlash to it, continue to voice their opposition to it, and raise awareness of the ways in which these policies are problematic. There are a number of people who are wondering what they can do on the ground. Well, in a very real sense, there are a number of pregnant people who need assistance right now. So a good thing to do is to donate to local abortion funds that are helping people to obtain abortion, which may mean crossing state lines or finding medication abortion prescriptions online.

Candis Watts Smith  30:17
Well, Rebecca, thank you for being my friend, and for being here on democracy works. I appreciate your insight. And you've given me a lot to think about, and a lot of helpful information and I'm sure that our listeners can say the same. So with that, I think you and I think our listeners, I'm Candace Watts Smith for Democracy Works.

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