Part 1 — Interview With Dahlia Lithwick: How We Got Here

A Is For was founded five years ago, amidst the turmoil of Barack Obama’s re-election campaign, and an outpouring of anti-women’s rights vitriol from the Right.  Of course, the War on Women predates A Is For. It predates this century (indeed, it predates this millennium), but it hit a particularly high gear in March of 2012 and some of us were spurred to action. The slut-shaming of Sandra Fluke by Rush Limbaugh, for the simple act of talking about birth control in public, was an inciting incident. There were many fine Pro-Choice groups already in existence, all worthy of support, but we felt that one particular issue needed more focus: abortion stigma. We formed A Is For largely to give voice to the idea that birth control and abortion are legal, they are common, and they are not worthy of any shame.

As we reach this anniversary, we think it’s worthwhile to assess the state of reproductive rights in America. Where we came from, how we got here, and what the future might hold. Many of those answers revolve around the Supreme Court, so who better to take us through it than Dahlia Lithwick?

Dahlia Lithwick is a senior editor and legal correspondent for Slate. She is a former law clerk, an author, a weekly NPR commentator, and a prolific contributor to the New Republic, Commentary, The New York Times, The Washington Post, Elle and on  But to so many of us, Dahlia Lithwick is the first voice we want to hear from when the Supreme Court makes history. She is America’s most trusted analyst of the nation’s high court,  capable of cutting through the most dense legal arguments and judicial decisions to deliver smart commentary that even those of us who lack a J.D. can easily grasp.

Last week, A Is For board member David Avallone spoke to Dahlia about all things SCOTUS, in a far-reaching and candid conversation. The first installment of that conversation is below.

David Avallone:  When the Supreme Court is in the news,  I bet a lot of people have the same first reaction that I do… “what does Dahlia Lithwick think?” But before we get to current events… let’s go back and talk about how we got here.  The people reading this will know Roe Vs. Wade was decided in 1973, and that abortion was made broadly legal in the United States. What are the big Supreme Court decisions since 1973?

Dahlia Lithwick:  An important one is Casey, in 1992.  It’s important for a couple of reasons. Anthony Kennedy had been seated at the Court and everybody really thought this was the end of Roe. The abortion rights groups were out of their minds with fear. They thought, “now we have a majority  to end Roe,” and it was high stakes, in the way that Whole Women’s Health last year was very high stakes. And it was a very funny  decision in the end, because not only was the core of Roe preserved, but the Justices who came together to write what became the defining opinion preserving Roe were three Republican appointees. It was David Souter, Sandra Day O’Connor and Anthony Kennedy, surprising everyone.  Everybody thought Roe was over and then these three get together and Roe lives to see another day. So that was crazy.

David: What was the challenge in ’92, in Casey?

Dahlia: The challenge was to a bunch of laws, including a spousal notification law.  What the Court did, what the plurality of three Justices did, was they moved away from the strict trimester system. Roe v. Wade had this very mechanical, trimester-based system. The Court said that’s not very useful and it’s been obviated by time. So they moved to this test that you’re going to recognize when I say it : the “Undue Burden” test. And this is really from the murk of Sandra Day O’Connor’s mind… nobody knows what that means. So the test becomes… sure, the states can impose all sorts of regulations, particularly to protect the state’s interest in “life”…  but they cannot impose an undue burden on the mother. The question, from 1992 until literally Whole Women’s Health last year, was… what the Hell is an “undue burden”? What does that mean? And when is a burden excessive and when is it manageable? Casey enforces that Roe is still law, but it confounds a lot of judges for many decades because nobody knows exactly what the test is.

David: And then what happened in Whole Women’s Health last year?

Dahlia: Before we get to that it’s important to understand…  why do we not have tons of cases that come up after Casey? Why isn’t there lots of litigation? The truth is that the Courts heard a couple of pretty consequential ones. Probably the most consequential was the Partial Birth Abortion case in 2007.  That was the first time that Kennedy flipped sides. Justice Kennedy goes from protecting choice to upholding the Federal Partial Birth Abortion Ban. He does so -- and this is going to be important in a second -- more or less on the theory that women come to regret their abortions. They make bad choices. He cites all this debunked data on “maternal regrets” and how you have to help them make better decisions. Then he has this harrowing paragraph about how women finally have to contend with the horror of what they’ve done. It was awful. Ruth Bader Ginsberg just set him on fire in the dissent, essentially saying, “Are you out of your freakin’ paternalistic mind talking to women that way?”

The Partial Birth Abortion decision helps open the door for this whole panoply of laws that are passed in the states that are ostensibly going to help “make women safe.” States were saying, “oh, we’re going to do all this stuff to protect maternal health and to keep women from regretting their abortions, and make sure they make good choices.”  That’s where you get the forced ultrasound bills, that say that women have to look at an image on an ultrasound whether they want to or not. The “informed consent” laws. Doctors reading elaborate scripts to their patients that list all these risks of abortion that are not medically proven. All of that litigation and all of that legislation is around this pretext: “we just want to help women be smarter. You know… they’re not real smart.”

In 2013, in Texas, after the famous filibuster by Wendy Davis, they passed this huge omnibus abortion restriction law, HB2, and there are many, many provisions. Only two of them go up to the Supreme Court and become Whole Woman’s Health. One of them is this ambulatory surgical care – “ASC” – requirement. That says that any clinic performing abortions, even if it is just medicine abortions, even if they never do surgery, has to be retrofitted as though it is a surgical unit. This costs millions and millions of dollars and it forces many clinics to go out of business because they can’t possibly afford to do it.

The other provision is that any doctor in Texas who is going to perform an abortion needs to have admitting privileges at local hospitals. That means that if something goes horrifically wrong, a woman can be rushed to a local hospital. This is also completely unnecessary. Hospitals don't turn away women in crises. And it’s impossible for these doctors to get admitting privileges because they don’t bring enough business in for it to be worth the hospital’s time.  

So doctors can’t get admitting privileges, clinics that can't afford to be retrofitting start to close… and literally as soon as HB2 goes into effect, Texas goes from forty-one clinics to twenty-two clinics. And if HB2 hadn’t been stayed it would have gone down to nine or ten clinics. So they gut the number of clinics in Texas, in a heartbeat. And that’s the case that becomes Whole Woman’s Health and goes to the Supreme Court last year.

David: And then the decision in the Supreme Court overturned HB2, the Texas law.

Dahlia: Exactly right. Even though Antonin Scalia is not on the Court… so everybody was expecting this to be a four-four split… Justice Kennedy votes with the Liberals to strike down the law. Surprising everyone, he flips and joins unreservedly. He doesn’t “concur”, he joins completely in the decision that both of those two laws in Texas say that they’re protecting women’s health, and there’s no evidence whatsoever that they are in fact protecting women’s health. And basically says from now on courts are going to have a meaningful role to play if a pretextual law is being passed ostensibly to do one thing -- protect women --  but really the only effect is to make it impossible to obtain an abortion. Women are having to drive hundreds of miles, and stay in a hotel, and leave their kids at home and they can’t afford it. All the stuff that burden women’s rights. There had better be a real medical reason and it’s not good enough for the state to just assert that there is. So that was five to three in June of 2016, and it’s a pretty big shocker. Nobody had any reason to believe that Kennedy was going to vote with the Liberals.

David: I was going to ask you if Kennedy is still the Sphinx, still the eternal mystery, and I guess the answer is yes.

Dahlia: Well, Kennedy did not write the opinion, so we don’t have a great sense of why he did what he did. But Ginsberg really did say, in the years after his Partial Birth Abortion decision, that Kennedy made a mistake and she called him out by name. She said he allowed this to happen. I think she shamed the heck out of him. Maybe that dislodged him a little bit.

I think that Justice Kennedy is a big believer in judicial supremacy, and the importance of a judicial role. In the oral arguments the Solicitor General from Texas was literally unable to come up with a single example. Justice Breyer basically said, give me one example of somebody who’s rushed to an ER and doesn’t get admitted because the doctor doesn’t have admitting privileges and the woman dies. One. Nationwide. And the Solicitor General had nothing. They had no evidence to support what they were trying to do. I think when it looks as though the courts are being hoodwinked, they're being asked to blinker themselves to what's really going on, Justice Kennedy is the first person to balk at that. So going forward if the question is “do we know what Justice Kennedy would do in a future reproductive rights case,” we really don’t. But we know that he surprised us by wholeheartedly being really “all in” on a decision where we didn't think he was there.

----In Part 2, David and Dahlia talk about the important role of culture and stigma in transforming the mindsets of legislators and judges, as they make and shape the laws that govern our lives.