Part 3 — Interview With Dahlia Lithwick: Moving Forward

Our three-part interview with Dahlia Lithwick concludes today as David Avallone and Dahlia discuss the legal battles in the courts and where we can expect to go from here. 

David: Back to courts… I wanted to ask you about this case in Uruguay, where the rights of the father were put ahead of the rights of a pregnant woman. Are we starting to see that in the states? What are the battle lines in the states now?

Dahlia: We are starting to see really creepy spousal permission laws. In Oklahoma they just passed one. That was where the legislator who passed it described the mother as a “host”. And you were just like… I’m sorry, did you say “host?” We are starting to see even that your rapist has veto power over your body. There are bills like that. It’s not just in Uruguay. We are seeing bills being passed and it’s probably worth flagging here that just since 2017, the latest data I have is forty-six measures have been introduced in the states.  It’s been a feeding frenzy.  The one thing I think it’s really important to understand, and we missed it a little bit after Whole Women’s Health. It was like we dodged a bullet and we wouldn’t have to fight it again for twenty-five years. But a lot of those “women’s health” laws, like the ultrasound, and the ambulatory surgical center, and the admitting privileges… a lot of those laws are now being struck down and the fight has moved – even in the sixth months since Whole Women’s Health was decided --  and what we’re seeing now is much scarier. We’re seeing heartbeat pills. We’re seeing twenty-week bans.

In Ohio, in December, they passed a twenty-week ban. They tried to pass one that was literally a heartbeat ban, where you would not even have known you were pregnant before it was illegal to abort. The spotlight has moved from these pretextual women’s health claims, back to claims about when life begins. These are really something to watch for, because I don’t think they’re getting a lot of attention.  Like ten states have these things called “trigger laws”, which say that if Roe is ever reversed at the Supreme Court, everything in the state will revert back to “pro-life”. Including, in some states, the claim that life beings at conception, which will impact Plan B and other birth control devices.

So I think we’re back to a fight about when life begins and that’s the new push, not the women’s health argument. It’s screw the woman, she’s just a host, let’s go back to life. And those are passing everywhere. I think deliberately pushing this issue of when life begins before the Supreme Court.

David: Do they think there’s a possibility they will win at the Supreme Court because of Gorsuch? Given Kennedy’s unpredictability, for want of a better word, do they believe that Gorsuch plus Kennedy equals Roe v. Wade overturned?

Dahlia: I think what they believe is… it’s their moment. It’s a good time to remember Ruth Bader Ginsberg just turned eighty-four. Kennedy is eighty. Stephen Breyer is seventy-eight. So that’s three of your five votes in Whole Women’s Health. I think that they’re counting on Kennedy stepping down or Breyer stepping down and having another appointment. I think they really believe that if they pass something that is in flagrant violation of Roe v. Wade, then the Court is going to have to take Roe dead-on. You know, it can’t do a sort of sidebar litigation about what is an undue burden. They really are trying to say… screw trimesters, screw undue burden, every single abortion after twenty weeks, sixteen weeks, eight weeks, is impermissible, and that’s going to force the Court to take a Roe case.

On the second question… I think that they’re fairly confident that Gorsuch is a vote against abortion rights. It’s still Kennedy’s world and I don't know that he’s going to flip. I think they assume something else that is not in evidence. That is that you have five Justices on the Court who are willing to upset the principle of  “stare decisis”: the idea that settled law is settled law. I don’t think it’s clear that John Roberts is there.

David: I was just going to ask about Roberts. I don’t remember what your take on it was, but I feel like his judgment upholding the ACA was very much him thinking about the future and his legacy and not wanting to be the guy to killed the ACA all by himself, after the country elected Obama to give us universal healthcare. Roberts is the guy with his eye on the history books thinking, “you’re not going to pin this on me.”

Dahlia: I think that’s 100% right. He is an Institutionalist. His heroes are William Rehnquist, who was the Chief before Roberts, and he clerked for Rehnquist. Rehnquist always put the Court first, and his politics second. His other hero is John Marshall, the great Chief Justice. Both of them were Court people.  And you're exactly right: to decide the ACA cases in a politicized, partisan way would have been horrible for the Court and Roberts knows that. Over and above that, Roberts really does think that stare decisis matters. Clarence Thomas, for instance, does not. Clarence Thomas doesn’t care if it’s been good law for sixty years. If it’s wrong, it’s wrong and we should fix it. Roberts doesn’t agree with that. Scalia didn’t agree with that, by the way. But Roberts just doesn’t agree that we go willy-nilly overturning precedents that we have ordered our lives around.

It’s not just about Gorsuch, not even just about Kennedy. To actually overturn Roe they’re going to need to pick off more than two seats. That said… I think women should be concerned. We don’t have evidence of how Gorsuch thinks in abortion cases, per se, but we do have really good evidence of how he’s voted in the Hobby Lobby and other contraception mandate cases. He heavily favored the religious objectors who did not want to have to give birth control to their workers. He writes with unbelievably generous solicitude for the religious employer, and none for the women seeking to have birth control.

So I don't think Gorsuch is going to be a great friend to women’s reproductive rights going forward. That said, I think for the foreseeable future the fight is going to really be in the states. And it’s a big fight.

David: Moving from Gorsuch to the man who appointed him… my take on Trump, such as it is, is that he’s not personally very interested in abortion. I don’t know how that disinterest affects things going forward.


Dahlia: I think it’s clear that this is not his issue. But I also think he won, in no small part, because Evangelical voters were willing to hold their nose and go to the polls for him, even knowing what they knew about him. What we miss, on the Left, is the extent to which they –  2 to 1 – prioritize the composition of the Court as their number one issue. Democrats don’t prioritize it so highly. So there’s this massive enthusiasm gap between the Right and the Left, in this country, around issues of reproductive rights. That’s where we blow it, pretty consistently. Because the Evangelicals turned up. They knew Trump doesn’t care about this. But they also knew he would farm it out to people who did care. I think we have Democrats who didn’t realize that we have three Justices over the age of eighty, plus a vacancy, and that should be a singularly important issue. That was our failing.  In a deep way we took false hope in the idea that Trump doesn’t care about this. But the people who do care about this issue voted for him, and people who care about this issue are now in charge of picking his judges.

David: Not to put the burden on you to give us the answer… but what’s the number one thing we should do to keep abortion safe and legal?

Dahlia:  I think, as we seem to be learning, Democrats can’t take their eye off the statehouses and lose focus on what is happening every single day, in terms of rolling back rights. These mandatory ultrasounds, and the forced scripts, and all the other debasing and humiliating that are passed just to make abortions harder. I think that’s where the ground has been lost. It’s easy to have false hope, after Whole Woman’s Health, like, “hey, we won, it’s all solved.” But it’s not all solved. Clinics that closed are going to take years to reopen. It’s going to take tons of money. We have states in this country now that are down to one clinic or no clinics. To rest on our laurels and focus all our attention on what happens at the Supreme Court, is to miss the fact that we’re losing battles daily. I think the good news is I’m seeing huge push-back in the polling around defunding Planned Parenthood.  I’m seeing huge push-back in terms of overturning Roe. I think the public is not where Donald Trump is. But it’s got to be fought out locally and that’s got to be something we need to organize around every single day.

David: Fight local, fight every day. Solid advice, and a good plan going forward. Thank you so much, Dahlia, for your thoughtful analysis, and taking the time to talk to A Is For.