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0:00     Kay Summers: Hi, this is Kay Summers, host of Big World. A note about today's episode, we recorded this interview with Tracy Weitz before Kansas voters defeated an attempt to strip abortion protections from the state constitution. So, when we talk about states with upcoming votes, ballot measures, or elections, the part about Kansas doesn't reflect the decision made by voters in that state in early August. Thank you and enjoy this episode of Big World.

0:33     KS: From the School of International Service at American University in Washington, this is Big World, where we talk about something in the world that truly matters. On June 24, 2022, the US Supreme Court issued a ruling in the Dobbs versus Jackson Women's Health case. The ruling overturned the 1973 Roe versus Wade decision, overturned nearly 50 years of judicial precedent, and sent the question of abortion regulations and laws back to individual US states.

1:03     KS: The seismic impact of this decision on state laws, constitutions, and medical regulations will be felt by Americans from this point forward in ways that people are just beginning to fathom. So, today, we're talking about the future of reproductive and abortion rights policy in the US. I'm Kay Summers, and I'm joined by Tracy Weitz. Tracy is a sociology professor at American University's College of Arts and Sciences, and she's an expert on abortion care, policy, and politics. She's previously been a visiting scholar at the University of California at San Francisco, a senior fellow at the Center for American Progress, and the US Programs Director at The Susan Thompson Buffett Foundation.

1:44     KS: Tracy co-founded and directed UC San Francisco's Advancing New Standards in Reproductive Health research program, which influenced the California law permitting nurse practitioners, certified nurse midwives, and physician assistants to perform aspiration abortions. The six additional states have since implemented that same policy change. Tracy also served as the founding executive director for the UC San Francisco National Center of Excellence and Women's Health. Tracy, thank you for joining Big World.

2:14     Tracy Weitz: Thank you for having me.

2:15     KS: Tracy, when this ruling came down, we heard a lot about so-called trigger laws: state laws prohibiting abortion to different extents that were unallowable, under Roe, but which went into effect immediately once it was overturned, however that wasn't every state. So, are there US states at this point without meaningful or even any existing laws or regulations on the books, or is this largely an issue that most states already have firm positions on?

2:43     TW: Well, thank you for that question. Let me begin by saying that the majority of Americans oppose the overturning of Roe v Wade, but despite that, it's unlikely that we'll see the majority opinion represented in law in the near future. At the state level, many states are set in their anti-abortion position, mostly because of gerrymandered state legislatures. And at the federal government, the federal government favors senatorial representation from states with small populations and the filibuster ensures that these states have an outsized role in determining federal policy. So, all that said, there are eight states where the fate of abortion is still somewhat undetermined.

3:26     TW: Kansas and Michigan, there'll be ballot initiatives this year that will decide the legal status of abortion in their state. Pennsylvania this year and North Carolina next year will have governor's races where the outcome will be determined, the legal status of abortion. And Montana, Iowa, and Florida have state Supreme Court challenges that will be consequential to the future of abortion. So, those eight states, there's still something in play, but the majority of states are pretty set as to where they will land on, legal versus illegal abortion.

3:58     KS: And Tracy, what are the next steps for states that are largely progressive with regard to reproductive rights? Would they move toward state constitution, amendments, or laws? And I guess, which is more long lasting and harder to undo?

4:13     TW: As of July, there are 21 states and the District of Columbia, which have protections in place for abortion. Several of those states are moving to enshrine those into their state constitutions, including California and Vermont, which will likely have ballot initiatives soon to do that. But the new frontier is less about constitutional amendments and more about progressive state laws that seek to protect abortion access for people who live in states where abortion has been banned. So, we're seeing states like New York and Oregon that are using state resources to expand and secure service delivery in their state, and states that are trying to decide how to shield healthcare providers who offer care to people from banned states. So, Massachusetts is considering a law that would shield providers who offer telehealth abortion services to people who live in banned states. So, it's likely that these laws, rather than constitutional protections will be the new, interesting frontier of abortion regulation.

5:18     KS: And for states that have those trigger laws that immediately went into effect, do you think that they will move toward constitutional remedies that would seemingly be more permanent? Or are the politics settled in those states and the laws that they have is what they'll stay with?

5:36     TW: Yeah. Beyond Kansas and Michigan, it's hard to know which states are going to seek to enshrine their abortion positions in their state constitutions. We did see this in West Virginia and in Alabama before Roe was overturned, in which they sought to say that the state constitution does not protect the right to abortion. And we know from the fight over marriage equality, that once these changes are made in the state constitution, it's very difficult to undo them. And without a Supreme Court that's likely to recognize a right to abortion, the future of abortion rights in those states that do move to enshrine, or at least to say that the state constitution does not recognize the right to abortion, it looks pretty bleak in terms of trying to overturn those.

6:23     KS: Tracy, when you talk about purple states, and there were a couple of those in the names that you were tossing out earlier, but those are the states in which support for Democrats and Republicans tends to be somewhat even, maybe switches from election cycle to election cycle. You mentioned North Carolina in particular for a governor's race. So, my question is, will the women in those states really not know from election cycle to election cycle what their rights will be?

6:48     TW: It's again, another really good question and a really complicated one. So, banning and unbanning abortion takes having a governor and the majority in both chambers of the state legislature, except Nebraska, of course, which only has one chamber. As such, it's unlikely that these purple states will swing dramatically from year to year. Let's take Pennsylvania, which we were talking about. So, the state legislature is very hostile to abortion and this past several abortion restrictions and is likely to ban abortion. These laws have been vetoed historically by a pro-choice governor and are likely to continue, but should an anti-abortion candidate win the governor's seats, abortion's likely to be banned in Pennsylvania.

7:29     TW: And another election cycle, the pro-choice majority may win back the governor or even one of the chambers, but unlikely to win back to. So, once abortion becomes illegal in a state, it's very, very difficult to win it back as legal, because you need a complete flipping of the state government. By comparison, let's say Colorado, which is a state where you could get a anti-abortion governor and one chamber, but unlikely to fully restrict abortion. I would say that Virginia is the one place where the distribution of the state government goes back and forth across sort of all three bodies. Virginia, as you know, has elections very frequently. So that's a state where we could see from election cycle to election cycle the women in that state not knowing the status of abortion, but probably unlikely in the other states.

8:29     KS: Right. I just know a little bit about Virginia because I live here, but we do have the four year term for governor and that office is term limited. So it really does change over every four years.

8:43     KS: Tracy, I'm asking you to crystal ball a bit. Looking ahead five years do you think that abortion will be an open question anywhere in the US? Or do you think that we'll be somewhat settled into a patchwork of state remedies that's unlikely to change much from state to state?

9:01     TW: Yeah. I think the question about whether the laws are settled or the fight is settled are different. So abortion hasn't been a settled issue since 1973, and it's unlikely to sort of be resolved as long as we are in the middle of this sort of progressive-conservative division and fight in the US country.

9:21     TW: Many people and folks I've talked to for years really long for an end to the abortion culture war and imagine that there's some kind of middle ground that could be reached that would resolve this issue. I am pessimistic to believe that such a consensus exists because on the extremes, both the people who oppose abortion rights and the people who support abortion rights at the very sort of polar opposites, will fight this until the end of their time. So it's likely that abortion will remain an extremely divisive issue even as state law remains sort of relatively settled in the near term.

10:05     KS: Yeah, I think that has to be what's made it such a contentious issue over the years is that, at its essence, it really is a binary. I think it seemed like that was what the chief justice was trying to accomplish with his opinion where he ruled with the Dobbs ruling that the... It was the 15 week thing, but he didn't want to overturn Roe as a whole. It seems like he wanted to lower the threshold to 15 weeks. Is that right? Make sure I have that right. Was he trying in some way to strike that middle ground or to see if that was a position that people would accept?

10:42     TW: Exactly. That was his interest. I want to back up and say that Roe itself was a search for the same kind of compromise. So Roe set the viability standard that said that there is a time before potential fetal viability when a person has the right to an abortion. Then after the point of potential fetal viability, which is somewhere around let's say 23 or 24 weeks in pregnancy, the state's interest and potential life can be used to restrict those abortions.

11:15     TW: So the goal with Roe had been to strike a compromise. Justice Roberts was trying to say can we find a new compromise? I think that what we see both for the anti-abortion movement and the justices, the other justices on the court, was they're not interested in seeking another kind of compromise. They really do believe that abortion is not an issue that should belong to the pregnant person.

11:47     KS: Tracy, when we talk about reproductive rights policy in the US, there are two names that get thrown around a lot when you hear or read things about government and policy. The Hyde Amendment and the Helms Amendment. On this podcast, we typically focus more on foreign policy rather than domestic US policy. So I do want to take a few minutes to discuss how this legislation affects women globally. So if you wouldn't mind, Tracy, briefly, what are the Hyde Amendment and the Helms Amendment and how do they affect both US women and women globally?

12:20     TW: Yeah, I'll start with the Helms Amendment since your audience is predominantly interested in the international context. So the Helms Amendment was passed to restrict the use of US money in the international context. It states that the US funds cannot be used to provide abortion as a method of family planning.

12:40     TW: Now, both Republican and Democratic administrations have sort of interpreted and implemented that law very broadly and viewed it as an almost total near ban on funding abortion. That means excluding cases of life endangerment, or rape, or incest in which the person technically might not be using abortion as a method of family planning. This has meant that funds going internationally, and particularly health funds, cannot be used to address what is in the sense one of the major contributors to maternal mortality around the world, which is unsafe abortion. So people can use US funds to take care of people let's say once they have had an unsafe abortion, but they can't offer the preventive care, the abortion itself, which would have in a sense prevented the outcome, the poor outcome. Whether that was a death or severe health compromise from abortion.

13:44     TW: Just like we have in the United States, people are tentative about getting close to the line. So that means people are afraid to talk about abortion. They're afraid to teach about abortion. They're afraid to include abortion services in their clinics, even if they're not using US funds. So it has severely limited access to reproductive healthcare broadly, even though it is supposed to only narrowly address use of US funds for abortion services themselves, even in countries where abortion is legal.

14:20     TW: Hyde Amendment is an annual rider to the federal budget. So it's actually passed every year and it's been passed since 1976 and it bans the federal government and Medicaid from covering abortion services. So in the US about 75 percent of people who have abortions live at or below the poverty line and are likely to be on, or need, public insurance. At the state, there are 16 states that use their state money, but all the other states if you live in that state and you have Medicaid, you cannot use it to cover abortion.

14:58     TW: So if people are poor and the cost of abortion is equivalent, although cheap by a healthcare standard, is equivalent to about let's say your rent, if you are having a first trimester abortion, or it could be your entire year's salary if you're having an abortion later in pregnancy, you have to sort of come up with that money because you can't use your insurance.

15:27     KS: Tracy Weitz, it's time to take five. You get to reorder, or maybe just put your spin on the world. What five policies would you enact to protect reproductive rights in the United States?

15:40     TW: Well, that is a fun and uplifting question after the conversation we just had. So I would start with saying that I would love to see a policy that fully decriminalizes all outcomes of all pregnancies. That recognizes that fundamentally the pregnant person deserves autonomy over their body, their life and their future.

16:00     TW: I think the second thing I'd love to see is mandatory public and private insurance coverage of abortion as a healthcare service. This includes coverage without copay, freedom of choice of healthcare provider. Third pie in the sky policy, I'd love to see over the counter status for mifepristone/misoprostol, which is the regimen we use for medication abortion in the United States. This regimen meets the clinical standard for over the counter, because it's safe and non-addictive, but it's only politics that have really restricted access to this drug.

16:33     TW: The fourth thing really goes in the other direction, which is to say that we also need to fund... I'd love to see full funding of the social safety net to change the conditions that lead many people to need an abortion. I'd love to see increase in wages and public financing of healthcare and reduced cost of advanced education, safe housing, decriminalizing our communities.

16:54     TW: And the last is not about abortion, but I'd love to see unfettered access to the ballot for state and federal elections. Until the bodies of government in the United States represent the majorities of the people in this country, abortion is always going to be a cheap political tool to secure power. So in some ways, maybe this is the first and most important policy, is that we ensure election participation by the majority of people in this country.

17:27     KS: Tracy, there have been more and more articles and pieces that I've seen about the unintended or poorly considered consequences of extremely restrictive abortion laws. And you mentioned people being afraid to go too close to the line in any way, so these pieces that I've seen have involved medications that some women require to complete a miscarriage or procedures that are required to complete a miscarriage, some medications that have a purpose that has nothing at all to do with human reproduction.

17:58     KS: I'm thinking about pieces in the LA Times, the Washington Post and others about women who can't get their prescriptions for methotrexate, for example, which they need to control their rheumatoid arthritis. I've seen pieces about women left to bleed during a miscarriage while the doctor tried to determine if performing a routine D&C will put that doctor in violation of the law. And I'm thinking about women in the middle of an ectopic pregnancy, which is a completely non-viable pregnancy, very dangerous condition that endangers the mother's future fertility and even her life, who are not sure if they're going to be able to get methotrexate without having painful and intrusive conversations with a pharmacist.

18:38     KS: These situations to me speak to a complete lack of understanding about the ramifications of these laws by the people who wrote them and a pretty dangerous lack of understanding and care about women's health, both reproductive and otherwise. It's like through the policy lens, women are viewed as only ever existing when they are pregnant and the only law that needs to address their conditions at all is whether or not they would be allowed to terminate.

19:04     KS: So as a policy expert, do you see any hope for these state policies, even in states that want to ban abortion to begin to recognize these unintended consequences and guard against them in a way that doesn't overburden or endanger women more than the laws already do?

19:20     TW: Yeah. I'm very exciting to see the media pay attention to these stories and I just want to give a shout-out and a thank you to all of the people who have been willing to share their personal stories with the media. These are often incredibly difficult times for people and their families and very can be embarrassing or disclosing, and so people's willingness to share them is extraordinary.

19:48     TW: I'm so happy to see the coverage. I think people, myself included, are shocked to learn that banning abortion affects all aspects of healthcare. People believe you could carve out abortion services, may ban those and it would have no ripple effect, but realistically, there really is no way to secure these other services without legalizing abortion. And the reason is as long as the act of abortion carries criminal penalties, healthcare providers, institutions, and individuals are going to act in ways to protect themselves from that risk.

20:27     TW: So that means they're going to avoid circumstances that might appear to contribute to the ending of a pregnancy, the definition of abortion. There's no intentionality in the law and very difficult, even if there was intentionality to demonstrate that in a court, because this is a criminal act, you would be in criminal court and you would be in front of a jury where you'd be trying to defend that you didn't do something that appeared to have caused or contributed to abortion. And as a result, there is probably no way to write a law that would make individuals and institutions feel secure in providing that healthcare. So I think that what we want as this compromise where you carve out abortion just isn't realistic in US law given the way the US healthcare system works and the way in which we use the criminal justice system to adjudicate social issues in the United States. And I also want to point out to the listeners that states hostile to abortion have already signaled that they do not intend to be more permissive in the interpretations of these laws.

21:46     TW: Just last week, Texas filed suit against the federal government over guidance that it issued regarding a federal policy, which we call EMTALA, is the Emergency Medical Treatment & Labor Act. It's the federal law that requires anyone who comes into an emergency room to be stabilized and treated. It's why even if you don't have health insurance or you are undocumented in the United States, if you show up in an emergency room, they are obligated to treat you.

22:15     TW: And the federal government said it just wanted to remind institutions that they are obligated to provide emergency care in these kinds of circumstances, and Texas sued the federal government over that. And that long standard now seems to be, which has not been controversial to now, quite controversial. And given the fight that we are in about how much the federal government can mandate and regulate, these are likely issues that are not going to go in the direction of more favorable interpretations of state laws restricting abortion.

23:01     KS: You mentioned people being willing to share their own stories and hope that influences people, and also these laws that are seemingly in place to help all of us when we need help, and now state governments like Texas would be intending to not enforce those.

23:22     KS: So I actually had two miscarriages. I had one that required a D&C to be resolved, and I had another that was ectopic and required methotrexate. And those were two of the hardest weeks of my life in every possible way and the idea... I can't wrap my head around the idea that I might've been denied treatment. I can't wrap my head around the idea that I might've had to negotiate with a pharmacist in the CVS. I can't wrap my head around the fact that I might have been required to stand in line with a group of people at a pharmacy and explain to the pharmacist where everybody can hear that I'm having a miscarriage. These situations, frankly, make me angry because it is just the reduction of the experience of a woman to one decision ever. And it's dehumanizing in a way that's hard to explain to someone who it wouldn't affect. And I say that just because I agree that people who don't already understand this need to understand that this is not something that affects some woman that you don't know somewhere, who's making a choice that you don't agree with. This affects all women. It affects anyone with a uterus.

24:52     TW: I am so grateful for you for sharing your story, and I wish you didn't have to. I wish we didn't have to talk about the human consequences of laws before we can get people to understand them. But we are clearly in that place where we have to, and these laws, the cruelty of these laws is now just coming to light. And you talked about the cruelty to someone who has to seek care and disclose themself. I'm thinking about the folks who, while corporations are stepping forward to say they will offer funds for people to leave a state to obtain an abortion. That person who has to go to their employer and to their boss to get permission and resources to leave a state to seek healthcare, and that is a dehumanization that no individual should have to do. We should be able to make these decisions in private. We should be able to make these decisions and share them with the people that we love and who support we want, but we shouldn't have to share them publicly in order to ensure that the laws recognize the sort of humanity of, and I would say here both women and other people who can get pregnant.

26:30     KS: Yeah. I mean, people don't even think about it. You're sick. Say you have a particularly painful GI situation. You don't necessarily want to tell your boss all the details about that. You really just want to be able to call in sick, but to have to go to them and explain, I need to travel to another state to terminate a pregnancy is just an unbelievable conversation that anyone would have to have.

26:54     TW: And the point of this is to intimidate people out of exercising what should be their right to bodily autonomy, to their futures, to their lives.

27:08     KS: Tracy, this is a crystal ball type question again, but I'll ask it anyway. In your opinion, do you think the national right to abortion will ever be codified in the US? And conversely, do you think that a national ban on abortion will ever be codified in the US either by the Congress or the Constitution?

27:28     TW: As I started at the beginning to say that the way in which the federal government is distributed at this moment in time, where senatorial power disproportionately benefits small states, I have lived both in California and Nebraska and in both of those, I was a very different size of population. And yet both had two Senate seats. And the way the filibuster makes sure that those small states have over-representation, it is going to be a challenge to identify a pathway in which the right to abortion could be codified with 60 votes given the way it is distributed.

28:20     TW: I think that it is more risky to imagine that a national ban on abortion could be codified with a major swing, let's say like we had in 2010 after the Obama election, where we had a massive swing in the composition of the federal government. So I think it is very worrisome for a national ban. I also think that this is an important question for scholars of voting rights to think about, because abortion is predominantly used as a political tool to gather power, which then gets leveraged to gerrymanders states and restrict the ballot, so the changes can't happen. And so there is this very tightly woven relationship between anti-abortion activity and voting restrictions that I think many people don't understand. And certainly folks who work on access to the ballot and people who work on access to abortion rights don't necessarily always understand how intertwined their fates are.

29:33     KS: Tracy Weitz, thank you so much for joining Big World to discuss the future of abortion policy in the US. It has been great to speak with you. Thank you.

29:42     KS: Big World is a production of the School of International Service at American University. Our podcast is available on our website, on iTunes, Spotify, and wherever else you listen to podcasts. If you leave us a good rating or review, it'll be like finding out you really did have a long lost wealthy relative, and they really did leave their entire estate to you. Our theme music is It Was Just Cold by Andrew Codeman. Until next time.