[Editor’s Note: Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law. Pulitzer Prize winning historian David Garrow has called her “the premier historian of abortion in the post-Roe era.” She is the author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press 2020), Beyond Abortion: Roe v. Wade and the Fight for Privacy (Harvard, 2018) and After Roe: The Lost History of the Abortion Debate (Harvard, 2015), and the winner of the 2014 Harvard University Press Thomas J. Wilson Memorial Prize for best first manuscript in any discipline. She spoke to Charles Camosy about the upcoming U.S. Supreme Court decision on June Medical Services v. Russo, which is being watched for its implications on abortion laws.]
Camosy: So we are are just days away from a major Supreme Court decision on abortion. The first in awhile with what is arguably a pro-life majority. Could you briefly summarize what is at stake in this case?
Ziegler: June Medical Services v. Russo seems to be a simple case about whether Louisiana can require abortion doctors to have admitting privileges at a hospital within thirty miles. But there is much more at stake — especially since the justices struck down an identical law just four years ago.
Everyone remembers how precedent often serves as code for what will happen to Roe v. Wade. We will see how readily this reconfigured Court will rethink its past abortion cases. Plus, the case asks who can challenge abortion regulations in the first place: does it have to be women, or can abortion doctors and clinics do it as well? Since the late 1970s, clinics have brought most of the constitutional lawsuits. If the Court sides against abortion doctors here, that may make it harder for anyone to bring abortion cases. And it would signal that the Court is starting to believe that abortion doctors do not look out for women’s best interests.
You have such an incredible grasp of the history of the abortion debate in the US. I encourage everyone to read your work, especially your most recent book, Abortion and the Law in America with Cambridge University Press. Based on your grasp of that history, can you put the import of this decision in context for us?
The strategy pro-life groups have used in June Medical reaches back decades. First, June Medical advances the idea that women cannot and should not rely on abortion rights because abortion hurts women. Since 1992, when the Supreme Court defied expectations by preserving (and narrowing) Roe, leading pro-life lawyers have believed that the foundation of abortion rights is the claim that women rely on abortion to achieve equal citizenship. Knock that down, many believed, and Roe and everything that followed would fall too. This will be our first chance to see what this Supreme Court makes of the idea that abortion does not make women equal.
Second, the case focuses not on arguments about the right to life or the right to choose but claims about what abortion in American is really like. Some of this focus depends on the test the Supreme Court applies — the so-called undue burden test — which centers on the effects of specific restrictions. But since the 1980s — and especially since the Supreme Court upheld a ban on partial-birth abortion in 2007 — pro-life lawyers have tried to make progress in the Supreme Court by arguing that lawmakers should have more freedom to act when the facts about abortion are uncertain. June Medical puts this strategy to the test. Will the justices think the reality of abortion in Louisiana is different enough from it was in Texas four years ago? How much will they defer to state legislators, now and in the future?
Finally, history tells us that many outcomes in this case would be significant, even if the Court says nothing direct about Roe. The Court could signal its willingness to overturn abortion precedents, even in the face of some public criticism. The Court could also encourage pro-life lawyers to put even more emphasis on arguments about how abortion effects women.
If adding Kavanaugh to the Court doesn’t deliver the results pro-lifers expect, do you think this might finally change way the abortion politics and debate works in the U.S.? When might be we see a new phase that isn’t focused on judges and the Court?
I do think that we will move beyond a court-obsessed debate, but possibly not for some time. If the Court doesn’t move as quickly as some pro-lifers hope, some will use that hesitation to make the 2020 election all about the Supreme Court. After all, the next president may replace Ruth Bader Ginsburg and/or Stephen Breyer (both of whom tend to vote against abortion regulations). So a Republican president could theoretically move the Court much closer to overturning Roe with two new nominations.
Ironically, I think a major victory — especially the formal overruling of Roe — would be the most likely way to move abortion politics away from a focus on the Court. Both sides would have to focus on what happens in state legislatures, especially in swing states without a clear position. Pro-lifers would also realize that the current Supreme Court (and perhaps any Supreme Court) is unlikely to recognize a right to life, at least in the near term.
Indeed, neither movement is likely to get what it wants from the Supreme Court, and sooner or later, everyone will realize that. Even then, though, I’m skeptical that anyone will move beyond the Court for long. Both political parties have benefitted from making the Court an election issue. It’s hard to imagine either Democrats or Republicans giving that up.
One of the several reasons I respect your work is that you’ve managed to take a fair-minded approach to abortion and related issues in a context where it is so difficult to do so. My experience is that most other influential people in the secular academy and legal world do not have such nuanced, careful views. The urge to cheer-lead for the obviously correct side is just that strong, it seems. Do you share that view? Has it been difficult for you to be as fair-minded as you’ve been without people in your circles accusing you of, say, legitimizing misogyny or giving a platform to forced birthers?
I’ve had a relatively easy time, but that is largely because I’m one of the few historians who focuses on abortion. Being even-handed is (or should be) a professional obligation for historians. But yes, I’ve had some pushback from people who expect me to editorialize more (and to do so from a pro-choice perspective). Anonymous op ed comments and reader reports have been especially harsh. But I think there is a real need for fair scholarship on where we are and how we got there. I’m happy if I can achieve that.
Do you have any advice for those of us who would like to be more fair-minded and careful in these debates? Especially if we have strongly held views and if the power structures around us seem to demand that we take a particular position?
I’d start by talking to people who might respectfully disagree with you. Many of us are surrounded by people who share our views. That is less true for me, and it has been eye-opening. I live in a quite conservative town and work in academia, with generally progressive colleagues. I grew up in a strongly Catholic community and then spent most of my early adult years at Harvard surrounded by people without religious commitments. But what really helped me was to start conversations — in my case, oral histories. Getting to know why people believe what they do can humanize someone you might otherwise be inclined to dismiss.
It’s also good to remind yourself that many people don’t fit cleanly into conventional pro-life or pro-choice categories (and have quite conflicted views). Most major polls confirm this: Americans may not want abortion to be criminalized but may favor lots of restrictions. Acknowledging these nuances can help anyone not only to be more fair-minded but also to be a more effective advocate. As a law professor, I teach that effective advocacy requires kindness and empathy, especially for those you see as adversaries. This should be as true in the abortion debate as it is anywhere else.