With the biggest threat to abortion rights in fifty years reaching the Supreme Court this week, in the case Dobbs v. Jackson Women’s Health Organization—which centers around Mississippi’s fifteen-week abortion ban—Rebecca sat down with two of The Century Foundation’s top experts on reproductive rights and health: Dr. Jamila Taylor, director of health care reform and senior fellow at TCF, and Anna Bernstein, a health care policy fellow at TCF. They unpack what overturning Roe v. Wade would mean for women and people who can become pregnant in the United States; why reproductive justice is critical to economic justice and gender equality; and why low-income folks and people of color are likely to face the most devastating consequences. But first, Rebecca sat down with Ian Millhiser, senior correspondent at Vox, author of The Agenda: How a Republican Supreme Court Is Reshaping America, and Off-Kilter’s resident longtime court-watcher, for a recap of this week’s oral argument in Dobbs.
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REBECCA VALLAS (HOST): Welcome back to Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by The Century Foundation. I’m Rebecca Vallas.
With the biggest threat to abortion rights in 50 years reaching the Supreme Court this week in a case called Dobbs v. Jackson Women’s Health Organization, which centers around Mississippi’s 15-week abortion ban, I sat down with two of The Century Foundation’s top experts on reproductive rights and health care, Dr. Jamila Taylor, director of health care reform and a fellow senior fellow at TCF, and Anna Bernstein, TCF’s health care policy fellow, for a look at what overturning Roe v. Wade would mean for women and people who can become pregnant in the U.S., why reproductive justice is critical to economic justice and gender equality, and why low-income folks and people of color are likely to face the most devastating consequences if Roe indeed is overturned.
But first, I sat down with Ian Millhiser, a good friend and senior correspondent at Vox, author of The Agenda: How a Republican Supreme Court is Reshaping America, and Off-Kilter’s resident and beloved longtime court watcher, for a recap of this week’s oral argument in Dobbs. Let’s take a listen.
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VALLAS: Ian, thank you so much for taking the time to come back on the show. And I have to say on a personal note, it’s been way too long, and I miss you, my friend.
IAN MILLHISER: It has been way too long. I wish we didn’t have to talk under these circumstances, but it’s great to hear your voice.
VALLAS: I know. I feel like at some point, I’ll reach out and say, “Hey, I’m really interested in having a conversation about good news.” But somehow that is never the hat that you seem to get to wear these days. And today is no exception. So, Ian, without further ado, ‘cause there’s a lot we need to get into, I’m gonna ask you to kick us off by reminding us what’s at issue in the Dobbs case. Folks are likely familiar with this case as the case that has finally put Roe versus Wade and abortion rights more generally squarely in the crosshairs. But remind us what the Supreme Court is being asked to consider here in this case called Dobbs.
MILLHISER: Sure. So, this is the single biggest threat to abortion rights since Roe v. Wade was decided in 1973. The court is being explicitly asked to overrule Roe v. Wade, which would mean that states, or potentially Congress, would be allowed to ban abortion outright. I think it is likely that there are five votes that are willing to go that far. There are some ways that they could hand down somewhat narrower decisions, but even the narrower options would be pretty serious incursions on the right to an abortion. So, I mean, what has happened here is that Republican presidents have said for many years that they were going to appoint justices who will overrule Roe v. Wade, and it looks like they’ve succeeded.
VALLAS: Well, and that’s certainly the way that the table is set here, and we’ll get into some of those potential outcomes that you’re alluding to here, none of which appear to be good. But remind us, what are the facts in this case? It takes us to Mississippi and involves actually that state’s only abortion provider.
MILLHISER: That’s right. So, Mississippi passed a law. It is styled as a 15-week abortion ban, meaning that you cannot get an abortion after the 15th week of pregnancy. But the clock on those 15 weeks starts ticking at the first day of the person’s last period. So, I don’t know how much the Mississippi legislature knows about the female anatomy, but for those members of the state legislature who are not aware, that makes it something closer to a 13-week ban on abortion.
VALLAS: I have to say moments like this, to that point, remind me of who was that state legislator, that Republican state legislator a few years ago who thought that you could put a camera down a woman’s mouth, have her swallow it, and it would go into her stomach, and that that’s how you could see the baby? Like, that’s how much information we appear to be operating with in some cases in terms of how babies are made. But I digress.
MILLHISER: Right. I mean, I don’t actually know how much knowledge these folks have about anatomy. But anyways! The reason why it’s significant, whether you style it as a 13 or a 15-week ban is that in Planned Parenthood v. Casey, the Supreme Court said that states are forbidden from banning abortion prior to the point of viability.
VALLAS: And Casey, of course, is a Supreme Court case that followed Roe vs. Wade. It’s less well known, but it’s really important here because it, hand in hand with Roe versus Wade, is what established what we have in place now in terms of our current jurisprudence on abortion.
MILLHISER: Right. Yeah, I mean, Planned Parenthood v. Casey is, in terms of current law, much more important than Roe v. Wade. Casey actually weakened Roe fairly considerably, but it didn’t eliminate the right to abortion. And like I was saying, it left, it established this viability rule. And viability is the point where the fetus is capable of living outside of the womb. That’s about the 24th week of pregnancy. And so, since we’re just doing basic anatomy, we’ll do some basic math now too: 24 is larger than 15. So, the 15-week ban or 13-week ban, whatever you wanna call it in Mississippi, is unconstitutional under Casey. It’s a pre-viability ban on abortion.
And the theory, some state legislatures were very explicit about this is, yeah, we know this is unconstitutional under Casey, but it’s a new court now. We got a lot of more conservative Republicans, so we think we can get away with it. And the answer after watching this oral argument, I think, is almost certainly, yep, they’re gonna get away with it.
VALLAS: So, you listened to the oral argument yesterday. Many of us did, and it was not pretty. The takeaway most folks had, yourself included, is that things are looking very, very bad for Roe and for Casey. You mentioned before that there are some potential outcomes here that one might be able to predict. It’s not entirely clear exactly how the justices will rule, even if—or I should say, a majority of the court will rule—even if it’s clear that it’s not going to be good, whatever the outcome is when it comes to abortion rights. But if you look in your crystal ball, which I unfairly ask you to do on a somewhat regular basis, what do you expect to happen, and what do you see as the potential outcomes? There’s kind of a spectrum here of potentially bad outcomes, and we aren’t gonna see a decision until next summer. So, we’re in crystal ball land until then.
MILLHISER: Yeah. So, there are six Republicans on the Supreme Court, and Mississippi needs to get five of them in order to uphold its law. I think they’re gonna get all six. But there was a bit of a split amongst the Republican justices. Chief Justice Roberts, who is normally the most cautious member of the Republican majority, seemed to be feeling around for a way to uphold this law without overruling Roe v. Wade in its entirety. So, he asked a lot of questions the effect of, why isn’t 15 weeks enough time to decide if you wanna have an abortion? Roberts, I don’t think he’s gonna have a second vote for that position. There are four justices that, based on what I heard, I am abs-, as close as I could be to absolutely certain they’re gonna overrule Roe v. Wade. And that is Thomas, Alito, Gorsuch, and Kavanaugh were all fairly clear that that’s where they wanted to go.
The one justice that I’m not absolutely certain about is Amy Coney Barrett. But when I say that I’m not absolutely certain about whether she’s gonna go all the way to overruling Roe v. Wade, [chuckling] well, let me just tell you about what she did say. She had this whole riff where she talked about, well, why can’t people just put their children up for adoption, and that solves the problem? Because one thing that Roe and Casey discussed was how much of a burden it is to have to parent someone because the state essentially orders you to. And so, why doesn’t adoption solve that problem? She actually had one riff where she said after 20, after you’ve carried a fetus for 23 weeks of pregnancy—I mean, she didn’t put it this way, but she essentially said—what’s 15 or 16 weeks more? Like, all that’s really at stake here is 15, 16 weeks more. And then you can put the, you can give up your parental rights and put the child up for adoption. So, I don’t know if she is going to overrule Roe or if she’ll try to find some sort of mealy mouth middle ground here. But when you hear a justice saying those kinds of things, it’s pretty clear that they are hostile to the right to an abortion.
VALLAS: Well, and Ian, what’s another, you know, 15, 16 weeks of being pregnant, right? It’s not like that impacts your ability to work or your ability to operate and function in the world. It’s not like it really changes much for people to be hosts for, for— I’m sorry. I just can’t with that line. Anyway.
MILLHISER: Yeah.
VALLAS: So, the tl;dr, if I’m hearing it right from you here, is that lots of potential ways that they—oh god, I probably shouldn’t say “split the baby”—ways that they could end up coming up with some kind of a middle ground that doesn’t end up fully overturning Roe. But even if that’s the road that the justices, that a majority of the court, does end up actually taking, it still, many advocates for abortion rights are sort of noting, and I think you’re in this camp as well, that any decision that effectively guts Roe, even if it’s not fully overturning it is still effectively the same outcome because of what we expect to happen in the states, if that is what we see this court do. Am I getting that right?
MILLHISER: Yeah, that is correct. And one point that I will make—and I’ve been making this as much as I can because I think it’s very important to understand it—is that the Supreme Court does not need to write the words “Roe v. Wade is overruled” in order to effectively overrule Roe v. Wade. And so, this case is about viability, and so a possible opinion that the Supreme Court could write is they could say, “We decide not to overrule Roe v. Wade. It’s too important to follow precedent,” yada yada yada. “The only change that we are making is we just think there’s a lot of uncertainty about when the fetus is viable. And so, it is up to the states to decide when a fetus becomes viable and therefore abortion can be banned. And if a state wants to say that the fetus is viable in the first minute of pregnancy, that’s fine,” you know.
There are lots of ways that the Supreme Court could write an opinion to dishonestly overrule Roe v. Wade, to pretend that they are keeping some shell of Roe on the books when, in fact, eliminating it. And the one thing I will say about that is that I hope that my colleagues in the Supreme Court press corps understand that fact and that we do, you know, if the Supreme Court tries to trick people into thinking that they have preserved some shell of Roe v. Wade, that no one who should know better falls for it.
VALLAS: So, Ian, you’ve mentioned the word “precedent” a few times. And another word that actually kind of becomes a huge buzz word in moments like this one where there is even a hint of a threat to Roe—here we have much more than a hint of a threat to Roe—is stare decisis. And this is something that a lot of folks, court watchers especially, have been raising in the context of what might the court do, and how much latitude should the court even really have in deciding this case? You mentioned before, as we were sort of setting up this conversation, that the only thing that’s changed since Roe versus Wade and Casey were handed down 50 and 30-ish years respectively ago is the makeup of the court. Talk a little bit about what stare decisis is here and why any decision that overrules Roe, whether literally or effectively, would end up being such an egregious departure from where the court has been, not only on this issue, but in how it handles things that are supposed to be considered settled precedent.
MILLHISER: Yeah. So, stare decisis is the rule that courts should generally, I mean, not always—sometimes there’s like a Plessy v. Ferguson, the infamous segregation decision—sometimes there are cases that need to be overruled. But as a general rule, courts should follow their own precedent. And the reason why is very simple: Precedent is what makes law different than politics. So, what makes a judge different than a member of Congress besides the fact that members of Congress are elected is that judges, first of all, are supposed to follow a legal text. But statutes are often vague. They’re often ambiguous. The Constitution is extraordinarily vague. So, you read the text, and there’s often multiple plausible ways that can interpret it. And somewhere along the way, a court has to do its best job of figuring out what the best reading of that legal text is.
And once that happens, the thing that makes law different from politics is that judges are supposed to follow those precedents. If they don’t follow those precedents, then the court just becomes a political football, and whichever party controls the Supreme Court rules the country because the Supreme Court has the power to veto any law, to rewrite any law, to make the law be whatever it wants the law to be if it isn’t bound by precedent. It is one of the most, if not the most, important constraints on the unelected judges who serve on the Supreme Court of the United States.
And so, if the Supreme Court occasionally overrules a precedent, even if they occasionally overrule a really important precedent, I don’t necessarily think that that’s a sign that the rule of law is collapsing in the United States. But I am very frightened that like, it’s not just that they look like they’re poised to overrule Roe v. Wade. The Roberts court, and especially since Republicans got a supermajority on the Roberts court, has been extraordinarily aggressive in overruling precedent. I think just last term, they overruled an important criminal justice precedent that was only a few years old. Justice Kavanaugh, who is the median vote on the court, has been writing these opinions, articulating new standards for when he’s allowed to overrule precedent that are very flexible. Justice Gorsuch has in his first term on the court—I mean, I forget what the number is—but he was consistently pumping out concurring and dissenting opinions, saying, I wanna overrule this. I wanna overrule this. I wanna overrule this. I wanna overrule this.
And if judges are behaving that way, if they don’t give some deference to what their predecessors did in previous cases, we do not have law in this country. Because again, the Supreme Court has the power, if it just acts in an arbitrary way, to veto any law and to rewrite any law. The thing that prevents it from doing that is that it is supposed to be constrained by past decisions.
VALLAS: So, is the court’s credibility, and even more alarmingly, the rule of law, on the line here if they do overrule what many legal scholars consider to be perhaps the most sacrosanct of settled precedent in the form of Roe versus Wade? Is that some of what this case is an indication of here?
MILLHISER: Well, certainly some of the court, some members of the court, seem to be wanting that. I mean, there was an extraordinary exchange where Justice Sotomayor, after pointing out that many members of the Mississippi legislature said that we passed this bill because we think we could get away with it because the court’s membership has changed, that look. The word that she used was “stench.” Like, it is gonna be very difficult for the court’s legitimacy to survive the stench of having people believe that the only thing that matters is the identity of the justices on the court—are they Democrats or Republicans—and not what does the law say, what do the precedents say.
And that is, I mean, you know, I’ve been warning about things like that. Lots of people have been warning. But to hear a sitting justice say something like that is extraordinary because the court’s power depends on the perception that it is doing something other than pure politics, that it is engaged in a legal process that has rules. If people don’t believe that, that actually, you know, that could potentially eviscerate the court’s power. The court depends on voluntary compliance to enforce most of its decisions. The U.S. Marshals Service, which is the agency that enforces court decisions, there just aren’t enough marshals to enforce every court decision if people don’t voluntarily comply.
And so, judges of all political persuasions normally go out of their way to maintain this myth that the courts are engaged in something other than pure politics. And if you have a sitting justice saying, I don’t know that that’s what we’re doing anymore, then that’s frightening. That’s a justice saying like, I am so worried about what’s going on that I am willing to undermine myself and my institution in order to warn people that bad shit is coming.
VALLAS: And of course, it’s not like this is the first indication that the court’s credibility is potentially diminishing, let alone that the rule of law may be on the brink of collapse. You tweeted yesterday, and I think you summed it up pretty well: “It’s wild that a third of the Supreme Court was appointed by a man who attempted to overthrow the United States government, and we just continue to let those judges hand down decisions.” I think “wild” is probably a charitable way of framing the broader picture that you appropriately remind us we’re sort of watching here.
In the last couple of minutes that we have here, I feel like this is the part of the infomercial where the narrator swoops in and says, “But wait, there’s more!”
MILLHISER: Yeah.
VALLAS: Except here, it’s not a second magic nonstick pan for scrambling eggs for the price of one, right? It’s that the implications of overturning Roe and Casey actually go far, far, far beyond abortion rights, potentially, because of how the Supreme Court has interpreted the right to privacy over the years. And many folks are worried about the future of other rights that stem from the right to privacy, which is what enshrines abortion rights under Roe and Casey, and in particular, LGBTQ rights like gay marriage and even gay sex. What is your read here about whether we see risks that are far beyond Roe in terms of major and massive rights rollbacks?
MILLHISER: Yeah, no. I mean, if you act now, you not only get forced birth, but we’ll also throw in the end of liberal democracy. So, I’ll say two things about this. I mean, one is Roe rests on a legal methodology called substantive due process. And you don’t have to know what substantive due process is. I’m not entirely sure that I know what substantive due process is. But the point is that Roe isn’t the only case that rests on that methodology. Some of the court’s contraception cases rest on similar methodologies. The court’s decision in Lawrence v. Texas, which said that people have a right to not have their sex acts criminalized rests on substantive due process. The Obergefell, the marriage equality decision, rests on substantive due process. And so, if Roe is taken out, there’s a risk that the next thing in line is going to be marriage equality, sexual autonomy, contraception, things like that.
And I wanna say one other thing real quick as we talk about what’s at stake here. And I guess the point that I was making in my tweet is that, so, the primary argument that Mississippi was making, not the primary, but one of the main arguments that they’re making is they’re saying, look. We just want this to be left up to democracy. We want our elected officials to be able to vote to ban abortion, and the Supreme Court shouldn’t be making that decision. And I think that if we were living in a vacuum, like if Mississippi and the Supreme Court is really serious about democracy, I’d be willing to go for that. If they were willing to say, “Yes, these decisions need to be democratically decided, and therefore we should not have four just-, no, five justices actually on the Supreme Court who are appointed by presidents who got into office after they lost the popular vote,” I am willing to, you know, let’s talk about democracy.
If we wanna talk about the fact that not only was Trump not elected by the people, but every single one of his justices was confirmed by a bloc of senators who represent less than half of the country, then, yeah, let’s talk about democracy. Let’s talk about the fact that the former guy tried to overthrow the U.S. government, and yet his justices get to continue to make these rulings.
So, if we had free and fair elections in this country and like one person, one vote, every vote is equal, no gerrymandering, no Senate malapportionment, no electoral college, the Supreme Court gives us back the Voting Rights Act, which they have largely repealed, if we wanna talk about democracy, let’s talk about democracy. And then if you wanna put abortion up to a vote, fine. I think we’d win that vote. But I mean, if you wanna talk about democracy, let’s talk about democracy. But what Mississippi wants here is to have this skewed system that we have that effectively gives extra votes to the Republican Party and then say, after you give all these extra votes to the Republican Party, then we’ll take a vote on it.
VALLAS: Ian Millhiser is a senior correspondent at Vox, author of The Agenda: How a Republican Supreme Court is Reshaping America, and Off-Kilter’s beloved resident longtime court watcher. Ian, thanks again for taking the time to come back on the show, as always, dumpster fire aside, and I look forward to having you back on at some point soon, hopefully under better circumstances next time for a change. Be well and talk soon, my friend.
MILLHISER: All right, it’s great to be back.
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VALLAS: Next up for part two of this week’s Off-Kilter: my conversation with Dr. Jamila Taylor and Anna Bernstein, TCF’s resident health care and reproductive justice experts. They unpack what overturning Roe v. Wade would mean for women and people who can become pregnant in the U.S. and what advocates mean when they say reproductive justice is economic justice. Don’t go away. [music break]
Jamila, Anna, thank you so much for coming on the show. And Jamila, I should say welcome back to the show, although the last time that you were on feels like a different lifetime. That was back in the day when you and I were both at the Center for American Progress, and the show was still powered by the Center for American Progress Action. So, welcome back now in its Century Foundation era!
DR. JAMILA TAYLOR: Yeah, it’s a pleasure to be back, and I’m excited to be working with you, Rebecca, in this new capacity as well.
VALLAS: One could say I followed you to The Century Foundation, and that would not be entirely wrong.
TAYLOR: [chuckles] Yes.
VALLAS: So, we heard earlier in this episode of the show from Vox’s Ian Millhiser, why he and other Supreme Court watchers are expecting the Dobbs case to be the one that either fully or effectively overturns Roe versus Wade and eviscerates abortion rights as we know them in the United States. And I am so grateful to each of you for joining the show for this next segment to help break down the human consequences really and what this would mean.
And Anna, I’m gonna start with you, and you actually have written a lot recently in the weeks leading up to the oral argument in this case about what it would mean. So, I’m gonna kick it over to you first to ask kind of the million-dollar question here, which is what would overturning Roe and its counterpart case, which we also heard about from Ian—it’s less well known, but in some ways, more important, Planned Parenthood versus Casey—what would overturning those cases mean to women and to people who can become pregnant in the United States? Researchers warn that we could see more than half of the states begin to enact outright abortion bans. But tell us a little bit about what we expect to happen if this case goes how court watchers expect it may go.
ANNA BERNSTEIN: Yeah, thanks, Rebecca. That’s exactly right. I mean, I think it’s 26 states that are poised to enact bans or already have bans that are on the books that will go into effect should Roe fall. And I think what we’re gonna see is just a further fracturing of abortion access in this country. So, we already know that it depends so much based on what state you’re in, what abortion access looks like for you. And this is just really gonna take that so much further as about half of states go so far as to ban abortion completely or set some really early limits on abortion that just go way beyond viability, the standard set by Roe. And really, we know what this looks like. We’re seeing it happen right now in Texas, and we know what happens when women and people who can become pregnant are denied abortion.
There’s a long study out of ANSIRH at UCSF, and they look at women who are turned away from abortion care and follow them for several years. And the outcomes are much, much worse for people who are denied abortion care. The economic outcomes, health outcomes, their self-reported outcomes of their aspirations, and achieving the goals that they’re planning to achieve are all worse for folks that are denied abortion care. And we’re just gonna see so many more people who are not able to access their care should Roe fall, and these bans go into effect in more states.
VALLAS: And staying with you for a moment, Anna, you mentioned the Texas case, which was just really a handful of weeks ago, and yet it feels almost like itself a different lifetime given how COVID time seems to work these days. And that was a case in which Texas’s SB8 was upheld and did not, as experts have described it, kind of pull the thread that unravels the entire sweater of Roe versus Wade because of what was at issue specifically in that case but really was in some ways the opening salvo headed to today, with the Dobbs case now being heard this week. Many are pointing to it as something of a real-time illustration of the catastrophic harm that comes from banning abortion and/or leaving it up to the states. We can come back to that in a later portion of this discussion, but that’s some of what you’re referring to in Texas.
Jamila, bringing you in next. Access to reproductive justice is already not equally distributed in the United States, far from it. And you and many other advocates have been ringing the alarm bells that low-income women and women of color and people who can become pregnant who are low-income and people of color will be most impacted by any rollback of reproductive rights. Talk a little bit about why that is and why groups who have less access to health care already end up facing particular barriers to reproductive care, even with Roe still in place.
TAYLOR: Sure, absolutely. I mean, basically, we know that populations who have been historically marginalized or disenfranchized from some of the privileges that are sort of experienced in society, whether it’s having access to quality, affordable health care, the ability to have health insurance coverage and pay for it without some of the challenges that fall under having economic disadvantages, we know that these marginalized communities are also largely people of color, low-income people. And because of these historical barriers, when we see these injustices like what we’re seeing with this Dobbs case and the sort of fractures that are gonna come along with that if it is allowed to sort of move forward, is that it’s just gonna make access to health care even harder to access for people that are already experiencing those challenges. And one can even argue that it would actually put abortion access completely out of reach for these historically marginalized communities.
I think another thing to keep in mind here is that because of some of these historical challenges, a lot of them are rooted in economic injustice. So, we’re dealing with communities that are already experiencing issues like inequities in pay. They’re more likely to work in jobs that are low wages. Again, they’re more likely to have challenges accessing health care. They’re more likely to fall on hard times with their out-of-pocket costs associated with their health care. And so, this is really gonna pose some challenges for these communities. And I think it’s important to think about it in a broader way than just like the reproductive rights framing that is in some ways narrow and solely focused on the right to abortion. But also, we’re talking about access to abortion care and some of the sort of multiple oppressions that these communities experience, whether it’s racial injustice, economic injustice, and other social factors that fall hardest on them and impact their ability to live healthy and have well-being and economic security in this country.
VALLAS: And continuing on that theme, which is a big part of why we wanted to do this episode for the show—a show focused on poverty and inequality and everything that they intersect with—a truism that bears repeating, especially in a moment such as this one and which we’ve been hearing from a broad array of reproductive justice advocates in the months leading up to this week’s oral argument, is that reproductive justice is economic justice. And similarly, that it’s critical, that it’s part and parcel of gender equality, which we still do not have in the U.S., despite what some members of the Supreme Court may think is the case.
Yet the state of Mississippi in their briefs to the Supreme Court in the Dobbs case that was heard this week argue that Roe versus Wade should be overturned because Roe—and I’m paraphrasing here, but I’m lightly quoting—is based on a set of factual assumptions that Mississippi claims are decades out of date: so, the idea that, for example, an unplanned pregnancy could change or ruin a woman or a person’s life. So, birth control and adoption end up being the things that Mississippi point to in its brief. They’re now readily available, the state notes. So, hey! A woman can have a career and a family, Mississippi says.
I’d love to give each of you the chance to respond to this line of argument. I’m already almost starting to laugh at that last part, especially given that we’re in the middle of this pandemic still where it’s, I think, pretty clear to everyone that there are real challenges of having a career and a family. But I’d love to give each of you the chance to respond to that line of argument, particularly because it came up so prominently in this week’s oral argument, including from one of the three justices that Donald Trump put on the court, Amy Coney Barrett. And Jamila, I’m gonna start with you there ‘cause I expect that you both have a lot of thoughts.
TAYLOR: Yeah, I mean, the listeners cannot see the smirk [laughs] on my face right now after listening to you sort of rattle that off, Rebecca. I mean, look. I think it’s easy for people with privilege to talk through what they assert are things that, basic needs, which I agree that they are, but coming from a place of privilege and talking about these needs as things that are readily available for everyone. And that is just simply not the case, especially when you think about it in the context of a place like Mississippi, which is in the South where we know is just like a hotbed for health disparities, economic challenges, poor maternal and infant health outcomes, lack of access to abortion and contraception. I mean, let’s be clear. That is not completely true, that contraception is readily available and accessible to all people.
And when we think about these issues in the context for people of color and low-income people, we see that these communities are even further entrenched in having these barriers and inequalities when it comes to accessing these basic needs. And so, I think anyone coming from a place of privilege does need to take a step back and think through, I think, in a deeper way how restrictions or barriers like this impact people that, quite frankly, do not look like them or have the same social or economic backgrounds as they do. So, I just wanna a sort of center the conversation in that way that I think we can’t trivialize the ability of disenfranchized communities or people to have access to the health care that they need, and that health care should be comprehensive. Pregnant and birthing people need access to abortion. They also need access to contraception. And quite frankly, they also need access to the economic advantages that people with privilege are able to access.
VALLAS: And I wanna pull out a study that the two of you cite in a piece that you actually wrote recently for The Century Foundation titled 5 Things to Know About Abortion Access as the Supreme Court hears [the] Dobbs case. And we’ve got a link to this in show notes. You cite a study that looks at some of the cost barriers specifically that you’re referencing where that study finds that 52 percent of women not using insurance or who didn’t have insurance found it difficult to pay for an abortion, 46 percent of women found that private insurance did not cover the procedure, and 30 percent of women delayed or didn’t pay other bills because of needing to pay for an abortion. Those are obviously just three ways to look at cost barriers, but Anna, I wanna bring you back in here as well on this point, because it’s just so incredibly important and seems not to be well understood, shall we say, by as many as six members of the Supreme Court right now, six justices on the Supreme Court right now, at least based on oral argument this week. And we’ll get to the adoption line, right? But would love to bring you in here as well.
BERNSTEIN: Yeah, exactly. I mean, those numbers from that study are, I think, kind of shocking to folks who don’t understand that even with Roe, this network of abortion restrictions that already exists in the U.S. just creates so many additional barriers and costs because of all the restrictions on payment for abortion, as well as laws that require abortion patients to travel further to clinics, potentially for multiple visits. And that’s just for people who are able to access abortion. There’s others who aren’t able to overcome those barriers. And if we see Roe fall and we see bans go into place, we know they’ll be across the South, across the Midwest, and they’ll really just deepen those divides.
And I think another interesting thing that came up in—I say interesting, but I really mean I think horrible—that came up in oral arguments, as you know, as you mentioned saying that the world is not the same as when Roe and Casey were decided, as if contraception didn’t exist in 1992 or 1973. But we know that it did, and contraception is not perfect even if a person has access to it. And I think we know that intuitively, but there’s research that looks at the causal impacts of abortion access when abortion was legalized in different states and then through Roe v. Wade. And women were able to join the workforce in greater numbers, were able to have higher educational attainment, and that was directly attributable to abortion. And contraception had its own benefits, but you’re able to separate those and see that abortion legalization itself had an impact on women’s economic security and well-being.
VALLAS: And that last point, right, is just so incredibly important. I mean, hearing some of the oral argument this week, I mean, I was just like, I felt kind of like Will Ferrell in Zoolander, right, where it’s like, oh, my god. I feel like I’m taking crazy pills, right? Because you’re hearing the justices argue out of both sides of their mouth. It’s like, on the one hand, “Hey! Don’t worry. We’re in this place where now we’re at gender equality, and everything’s fine, and everything’s great.” But it just totally disregards (which we’re not) but which totally disregards the advances that women have seen in the past decades came in large part because of greater access to reproductive health care, including abortion, right? So, to just disregard that and say, “Well, we don’t need this anymore” is it pretty, pretty wild?
I actually wanna bring in a quote from Fatima Goss Graves, who heads up the National Women’s Law Center and wrote a piece for SCOTUSblog, which I feel like sums this point up pretty well. She writes, “In the face of evidence that denying abortion access will set back gender justice advances, Mississippi argues that progress for women over the last five decades means that freedom to determine whether or when they have children is no longer necessary.” She continues, “This argument ignores that economic, political, and social advancement for women came in part because of greater access to reproductive health care, including abortion. Nor does it consider the gender gaps that remain.” So, just it feels like that really needs to be kind of screamed from the rooftops here as we hear the conservative justices sort of make it sounds like the gender equivalent in some ways of that, “Hey, we’re in a post-race society now because we had Barack Obama as president.”
Anna, I wanna stay with you for a moment to go back to the state level question. You started to go there before, and you brought up Texas. We have seen hundreds upon hundreds of attacks on abortion rights in the states in just the past few years leading up to the Dobbs case being heard and argued before the Supreme Court. We mentioned before Texas’s SB8, which many are calling a real-time canary in the coal mine of what will come from banning abortion or leaving it up to the states as some of the justices are trying to kind of spin what’s at issue here. Talk a little bit about some of what we’ve seen in the states, and importantly, what we’re seeing in Texas as we assess where things go from here if Roe does fall.
BERNSTEIN: Yeah. I mean, we are several months into people in Texas who can become pregnant not being able to access abortion care beyond six weeks, which, in the case of many people, means not accessing abortion care at all. And as is the case with all of the abortion restrictions that are passed in these states, states are quick to copycat these laws. And we know in Florida there’s already been a law similar to SB8 pre-filed, so the legislature is ready to pass that as soon as they’re in session. And I think we’re going to see just these restrictions proliferate as pre-viability bans are enacted if Roe falls. I mean, this number of restrictions that you mentioned, these hundreds of restrictions, those are being passed with Roe and Casey still in place, and they’re making abortion access more and more difficult for people of color, for people struggling to make ends meet, for people in the South and the Midwest in particular. And this is only gonna become worse, and as I said, this divide is just going to intensify.
There’s always gonna be people who can access care. They can overcome these financial barriers, geographic barriers. But we’re going to see the divide between these states, between these communities really, really deepen. And there’s some opportunities to mitigate this with there’s medication abortion care, which is available in all 50 states by mail. But that doesn’t work for every patient, that doesn’t work for every person, and it’s not a solution instead of in-person abortion access. We really need in-person abortion care for people who wanna access their care that way.
TAYLOR: I have a follow-up to that, Rebecca.
VALLAS: Please, please.
TAYLOR: And just to also say too, when these restrictions are in place, it also delays the timing for which a pregnant person can get an abortion, and so it just makes it, it could make it more complicated in terms of having the procedure or undergoing the procedure. And so, whereas Anna mentioned that abortion with pills is also available by mail, another reason why it just may not be something that everyone can use is because of the fact that if they’re sort of experiencing multiple restrictions or barriers to abortion care, it could cause them to delay the care, and then they wouldn’t be able to use pills for that. They would definitely need an in-person procedure. And so, I just wanted to lift that up too, as something that we tend to think about in the context of these barriers as well.
VALLAS: It’s a really important point. And another point that I wanna get into that’s a little bit kind of in the weeds, but also feels like it needs to be spoken to given that it has come up so much and came up in the oral argument is well, hey! Can’t people just go to another state if their state has banned abortion? Apparently, a certain Brett Kavanaugh thinks that it’s totally fine that people should just have to go to another state. Isn’t that how this works? How do you even begin to respond to that line of argument?
TAYLOR: Well, first off, again, we’re talking about people with privilege and also someone who does not have the ability to become pregnant [chuckles] commenting on the fact that people can just go to another state. And I will respond to that by saying, look. We started this conversation off talking about the communities that are going to be most harmed by restrictions like this. So, we’re talking about low-income people, people of color, people who have economic challenges or challenges in terms of the amount of money that they have out of pocket that they can contribute to the costs associated with this. I mean, first, abortion can be very expensive. We’re talking upwards of $500+ for an in-person procedure. Plus, on top of that, you factor in any travel costs that may be associated with going to another state, whether it’s gas or a hotel room or a plane ticket, any incidentals that may be associated with that.
And quite frankly, most of the people that get abortions are already mothers, and so they may have to also foot the bill for childcare for the children that they are parenting at the moment. And so, that isn’t even the full list of things that one has to consider if they do have to travel to get an abortion. And quite frankly, that just shouldn’t be the case. Abortion is health care. It should be readily available and accessible to everyone who needs it.
VALLAS: And Anna, same opportunity to you to respond, given that that has been just such a recurring theme as folks have been looking for ways to justify overturning decades of abortion rights in this country.
BERNSTEIN: Yeah. I mean, I think, as Jamila said, this statement comes off totally glib. I don’t think there’s any other form of health care where we would just tell the person to go to another state to access it. For any form of health care, people expect to be able to receive that care in a place that’s convenient to them, as it should be, and abortion care should be no different. So, even if it weren’t for the barriers, and we know those are barriers that are really insurmountable for a lot of abortion patients, it just shouldn’t even be the case. Folks shouldn’t have to travel out of state to receive health care. And we know that that’s already happening. And it’s happening in areas like the South and Midwest where these states are grouped together, and people might have to travel even further. And I think that we’re only gonna see this get worse. And I think we really need to be able to make sure that folks are able to access the care in their own communities.
VALLAS: So, in the last few minutes that we have—and there’s a lot else that we could get into, and frankly, more straw men that need to be taken down than I think we could ever have time to do in one single episode—I wanted to also carve out just a little bit of time to talk about some of the ongoing debate over something called the Hyde Amendment, which gets a lot less attention than threats to Roe versus Wade that trickle up through the courts. This is actually an issue that you have both done an immense amount of work on and that we actually saw some real progress on this year in an important congressional process.
Jamila, bringing you back in. Talk a little bit about what the Hyde Amendment is, some of the debate around it, how it fits into this larger conversation about reproductive justice, and some of the good, bad, and the ugly that we’ve seen on Hyde in 2021.
TAYLOR: Sure. Absolutely. So, the Hyde Amendment is a restriction by way of a rider that’s attached to, that has been attached to our federal appropriations bills over the last, what, 30+ years. And basically, what it does is it restricts funding for, or coverage, I’m sorry, coverage of abortion through the Medicaid program. So, meaning any person that has Medicaid or is a Medicaid enrollee, they cannot use their insurance to cover their abortion care except for in the cases of rape, life, and incest. And so, this has been a hotly contested issue for a long time. Folks in the reproductive justice space have been working to make abortion coverage available not only under the Hyde Amendment, but also under other federally supported or funded health coverage programs, both domestically and through our foreign assistance as well, because there are also abortion-related restrictions to our U.S. foreign assistance.
But this has been a banner year, I think, in terms of our work and advocacy around this issue. For the first time, we saw the Labor-H bill, appropriations bill, be passed out of the House, that did not include the Hyde Amendment for the first time. And so, that’s huge for us, and we continue with advocacy around this issue. There is legislation that is a comprehensive bill that sort of helps to address stripping all of these restrictions, and it’s called EACH Act. And so, that’s also something that the community has been sort of galvanizing around in terms of moving this issue along. But I think the sort of big-ticket item this year has been the fact that it was stripped from the Labor-H bill for the first time.
And this continues to be an issue that is contested because there are folks, you have some folks like Senator Manchin, for example, who typically has been supportive of the right to choose an abortion, but when it comes to issues around coverage of abortion or funding for abortion, he has not been supportive. And so, that has posed some challenges when we think about just the broader work that we need to do, having some moderates that are trickier on the issue of coverage. And it definitely fits within the broader conversation we’re having here about some of these other restrictions. Because when a person does not have abortion covered as part of their insurance, that means that they have to foot the bill out of pocket to pay for that abortion. And we’ve already talked about, at length, about how expensive that could be. And it does cause some pregnant people to forgo basic necessities like paying their rent or buying groceries or other costs associated with supporting the children that they already have. And so, getting rid of these coverage restrictions are really essential and key to the broader work that we’re doing around reproductive justice.
VALLAS: And that’s exactly the thread that I think would make sense to end on ‘cause we are gonna run out of time. But Jamila and Anna, to you both, would love for each of you to have an opportunity as sort of a closing note from this conversation to situate the debate and the fight over abortion access within the broader landscape on reproductive justice and on maternal health by asking the question, what should we actually be doing as a society to support reproductive health, maternal health, and especially Black women’s maternal health? Which is a big area of focus of both of your work and has been a focus of your work, Jamila, for years. It’s actually how I got to know you back in the day when we were both at CAP was because of your leadership in that field. Talk a little bit about the agenda that we would actually embrace if we as a society were trying to move the needle forward instead of constantly lurching from one fight to another fight, even just to prevent rollback of existing and fragile rights. There has been some level of cause for optimism in the Build Back Better debate around the chance to do a little bit of good here. But I feel like it would be lovely to end this conversation on a slightly more positive and forward-looking note than just, “Everything is terrible!” Which I think is how we’re all feeling about the oral argument that we heard this week. And Jamila, I’ll toss that to you first, and then, Anna, you’re gonna get the last word.
TAYLOR: Sure. Absolutely. So, I mean, first, I just wanna start off by saying for those of us working in reproductive justice, we envision a health care system that supports birthing people, pregnant people with a full continuum of reproductive health care. And so, that means access to abortion, access to contraception, access to well care visits, access to comprehensive, quality maternal health care. And so, I just wanna put that out there because the work that we’re also doing around maternal health is not divorced from our fight to ensure that we protect the access to and rights to abortion. These are all essential and key to a broader reproductive justice framework.
But in terms of Build Back Better, I mean, it is an exciting time in terms of where we’re seeing this focus, and I think, attention to Black maternal health in particular. Really quickly, right now, Black women are about three times more likely to die of pregnancy-related causes than white women, and these are largely preventable deaths. And so, the root cause of that is quite frankly, racism, and we just know that Black women just don’t get the same care and support and quality through the maternity care system as white women do. And so, the Build Back Better Act includes key investments in the Black Maternal Health Momnibus, which is comprehensive legislation aimed at addressing this country’s maternal health crisis. It centers Black women in that approach. It’s comprehensive. We’re talking about investments in the social determinants of health, addressing implicit bias in the health care system, putting more funding into the research and supports that are needed to address this issue, just a whole host of investments there.
And then the Build Back Better Act also includes permanent and mandatory extension of postpartum Medicaid coverage. Right now, Medicaid coverage for pregnant people and in the postpartum period is actually cut off 60 days after they give birth, which is absolutely ridiculous. And based on TCF research, we know that funding over 10 years, based on the Build Back Better Act, or postpartum Medicaid coverage, would help support over one million uninsured new mothers over 10 years. So, we’re talking about some really critical investments that really have the opportunity to really put a dent in our maternal health crisis in this country.
VALLAS: And Anna, you’re gonna get the last word on the conversation we should be having, would be having, could be having as a society if we were not just in this terrible and somewhat terrifying, as you described it before, defense mode.
BERNSTEIN: Yeah. I mean, I think in addition to all of the historic and really exciting maternal health provisions that are included in Build Back Better and will hopefully be passed into law soon, there are states, there are groups that are really working beyond this defensive stance and thinking through what really abortion justice would look like. So, not just the right to choose an abortion, but what would it mean if every person who needed an abortion, wanted an abortion could access one? So, there are states passing proactive legislation not just to enshrine Roe, but to really make abortion accessible. I think we’ve seen a lot more attention to abortion funds, which has been really fantastic and long overdue. I mean, these organizations are community-led. The National Network of Abortion Funds has done a ton of advocacy around the Hyde Amendment. These groups are really women-of-color-led. They’re focused on the communities that they’re serving and helping folks who cannot pay for their abortions to fund abortions. And I think we’re seeing people— You know, it’s horrible that it comes at the cost of overturning Roe for people to really turn to some of these groups that are really on the forefront. But I’m hoping that this attention will stay and the momentum will keep up.
And on the federal legislative side, we have the Women’s Health Protection Act, WHPA, which passed the House and goes beyond just codifying Roe, but really creates a right to abortion and a right for providers to provide abortion free from medically unnecessary restrictions like some of the ones we’ve talked about that really add burdens to patients like two-visit requirements and ultrasound viewing requirements. And so, I think there are some bright spots that we need to keep pushing forward in addition to this defensive stance that we’re really forced into.
VALLAS: And we’re gonna have to leave it there, even though there is a lot more that I would love to get into with both of you. But I just, I’m incredibly grateful to each of you for taking the time to break all of this down with us in this incredibly important but also incredibly dark week.
Dr. Jamila Taylor is the director of health care reform and a senior fellow at The Century Foundation, a fellow senior fellow, and Anna Bernstein is a health care policy fellow also at The Century Foundation. Thanks to you both and sending you both good wishes in this historically bad week. [bright theme music]
TAYLOR: Thanks for having us, Rebecca.
VALLAS: And that does it for this week’s show. Off-Kilter is powered by The Century Foundation and produced by We Act Radio, with a special shoutout to executive producer Troy Miller and his merry band of farm animals, and the indefatigable Abby Grimshaw. Transcripts, which help us make the show accessible, are courtesy of Cheryl Green and her fabulous feline coworker. Find us every week on Apple podcasts, Spotify, or wherever you get your pods. And if you like what we do here at Off-Kilter Enterprises, send us some love by hitting that subscribe button and rating and reviewing the show on Apple Podcasts to help other folks find the pod. Thanks again for listening and see you next week.
Tags: Off Kilter, Abortion, roe v. wade
Off-Kilter Podcast: The End of Roe v. Wade?
With the biggest threat to abortion rights in fifty years reaching the Supreme Court this week, in the case Dobbs v. Jackson Women’s Health Organization—which centers around Mississippi’s fifteen-week abortion ban—Rebecca sat down with two of The Century Foundation’s top experts on reproductive rights and health: Dr. Jamila Taylor, director of health care reform and senior fellow at TCF, and Anna Bernstein, a health care policy fellow at TCF. They unpack what overturning Roe v. Wade would mean for women and people who can become pregnant in the United States; why reproductive justice is critical to economic justice and gender equality; and why low-income folks and people of color are likely to face the most devastating consequences. But first, Rebecca sat down with Ian Millhiser, senior correspondent at Vox, author of The Agenda: How a Republican Supreme Court Is Reshaping America, and Off-Kilter’s resident longtime court-watcher, for a recap of this week’s oral argument in Dobbs.
For more:
[upbeat theme music]
REBECCA VALLAS (HOST): Welcome back to Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by The Century Foundation. I’m Rebecca Vallas.
With the biggest threat to abortion rights in 50 years reaching the Supreme Court this week in a case called Dobbs v. Jackson Women’s Health Organization, which centers around Mississippi’s 15-week abortion ban, I sat down with two of The Century Foundation’s top experts on reproductive rights and health care, Dr. Jamila Taylor, director of health care reform and a fellow senior fellow at TCF, and Anna Bernstein, TCF’s health care policy fellow, for a look at what overturning Roe v. Wade would mean for women and people who can become pregnant in the U.S., why reproductive justice is critical to economic justice and gender equality, and why low-income folks and people of color are likely to face the most devastating consequences if Roe indeed is overturned.
But first, I sat down with Ian Millhiser, a good friend and senior correspondent at Vox, author of The Agenda: How a Republican Supreme Court is Reshaping America, and Off-Kilter’s resident and beloved longtime court watcher, for a recap of this week’s oral argument in Dobbs. Let’s take a listen.
[upbeat music break]
VALLAS: Ian, thank you so much for taking the time to come back on the show. And I have to say on a personal note, it’s been way too long, and I miss you, my friend.
IAN MILLHISER: It has been way too long. I wish we didn’t have to talk under these circumstances, but it’s great to hear your voice.
VALLAS: I know. I feel like at some point, I’ll reach out and say, “Hey, I’m really interested in having a conversation about good news.” But somehow that is never the hat that you seem to get to wear these days. And today is no exception. So, Ian, without further ado, ‘cause there’s a lot we need to get into, I’m gonna ask you to kick us off by reminding us what’s at issue in the Dobbs case. Folks are likely familiar with this case as the case that has finally put Roe versus Wade and abortion rights more generally squarely in the crosshairs. But remind us what the Supreme Court is being asked to consider here in this case called Dobbs.
MILLHISER: Sure. So, this is the single biggest threat to abortion rights since Roe v. Wade was decided in 1973. The court is being explicitly asked to overrule Roe v. Wade, which would mean that states, or potentially Congress, would be allowed to ban abortion outright. I think it is likely that there are five votes that are willing to go that far. There are some ways that they could hand down somewhat narrower decisions, but even the narrower options would be pretty serious incursions on the right to an abortion. So, I mean, what has happened here is that Republican presidents have said for many years that they were going to appoint justices who will overrule Roe v. Wade, and it looks like they’ve succeeded.
VALLAS: Well, and that’s certainly the way that the table is set here, and we’ll get into some of those potential outcomes that you’re alluding to here, none of which appear to be good. But remind us, what are the facts in this case? It takes us to Mississippi and involves actually that state’s only abortion provider.
MILLHISER: That’s right. So, Mississippi passed a law. It is styled as a 15-week abortion ban, meaning that you cannot get an abortion after the 15th week of pregnancy. But the clock on those 15 weeks starts ticking at the first day of the person’s last period. So, I don’t know how much the Mississippi legislature knows about the female anatomy, but for those members of the state legislature who are not aware, that makes it something closer to a 13-week ban on abortion.
VALLAS: I have to say moments like this, to that point, remind me of who was that state legislator, that Republican state legislator a few years ago who thought that you could put a camera down a woman’s mouth, have her swallow it, and it would go into her stomach, and that that’s how you could see the baby? Like, that’s how much information we appear to be operating with in some cases in terms of how babies are made. But I digress.
MILLHISER: Right. I mean, I don’t actually know how much knowledge these folks have about anatomy. But anyways! The reason why it’s significant, whether you style it as a 13 or a 15-week ban is that in Planned Parenthood v. Casey, the Supreme Court said that states are forbidden from banning abortion prior to the point of viability.
VALLAS: And Casey, of course, is a Supreme Court case that followed Roe vs. Wade. It’s less well known, but it’s really important here because it, hand in hand with Roe versus Wade, is what established what we have in place now in terms of our current jurisprudence on abortion.
MILLHISER: Right. Yeah, I mean, Planned Parenthood v. Casey is, in terms of current law, much more important than Roe v. Wade. Casey actually weakened Roe fairly considerably, but it didn’t eliminate the right to abortion. And like I was saying, it left, it established this viability rule. And viability is the point where the fetus is capable of living outside of the womb. That’s about the 24th week of pregnancy. And so, since we’re just doing basic anatomy, we’ll do some basic math now too: 24 is larger than 15. So, the 15-week ban or 13-week ban, whatever you wanna call it in Mississippi, is unconstitutional under Casey. It’s a pre-viability ban on abortion.
And the theory, some state legislatures were very explicit about this is, yeah, we know this is unconstitutional under Casey, but it’s a new court now. We got a lot of more conservative Republicans, so we think we can get away with it. And the answer after watching this oral argument, I think, is almost certainly, yep, they’re gonna get away with it.
VALLAS: So, you listened to the oral argument yesterday. Many of us did, and it was not pretty. The takeaway most folks had, yourself included, is that things are looking very, very bad for Roe and for Casey. You mentioned before that there are some potential outcomes here that one might be able to predict. It’s not entirely clear exactly how the justices will rule, even if—or I should say, a majority of the court will rule—even if it’s clear that it’s not going to be good, whatever the outcome is when it comes to abortion rights. But if you look in your crystal ball, which I unfairly ask you to do on a somewhat regular basis, what do you expect to happen, and what do you see as the potential outcomes? There’s kind of a spectrum here of potentially bad outcomes, and we aren’t gonna see a decision until next summer. So, we’re in crystal ball land until then.
MILLHISER: Yeah. So, there are six Republicans on the Supreme Court, and Mississippi needs to get five of them in order to uphold its law. I think they’re gonna get all six. But there was a bit of a split amongst the Republican justices. Chief Justice Roberts, who is normally the most cautious member of the Republican majority, seemed to be feeling around for a way to uphold this law without overruling Roe v. Wade in its entirety. So, he asked a lot of questions the effect of, why isn’t 15 weeks enough time to decide if you wanna have an abortion? Roberts, I don’t think he’s gonna have a second vote for that position. There are four justices that, based on what I heard, I am abs-, as close as I could be to absolutely certain they’re gonna overrule Roe v. Wade. And that is Thomas, Alito, Gorsuch, and Kavanaugh were all fairly clear that that’s where they wanted to go.
The one justice that I’m not absolutely certain about is Amy Coney Barrett. But when I say that I’m not absolutely certain about whether she’s gonna go all the way to overruling Roe v. Wade, [chuckling] well, let me just tell you about what she did say. She had this whole riff where she talked about, well, why can’t people just put their children up for adoption, and that solves the problem? Because one thing that Roe and Casey discussed was how much of a burden it is to have to parent someone because the state essentially orders you to. And so, why doesn’t adoption solve that problem? She actually had one riff where she said after 20, after you’ve carried a fetus for 23 weeks of pregnancy—I mean, she didn’t put it this way, but she essentially said—what’s 15 or 16 weeks more? Like, all that’s really at stake here is 15, 16 weeks more. And then you can put the, you can give up your parental rights and put the child up for adoption. So, I don’t know if she is going to overrule Roe or if she’ll try to find some sort of mealy mouth middle ground here. But when you hear a justice saying those kinds of things, it’s pretty clear that they are hostile to the right to an abortion.
VALLAS: Well, and Ian, what’s another, you know, 15, 16 weeks of being pregnant, right? It’s not like that impacts your ability to work or your ability to operate and function in the world. It’s not like it really changes much for people to be hosts for, for— I’m sorry. I just can’t with that line. Anyway.
MILLHISER: Yeah.
VALLAS: So, the tl;dr, if I’m hearing it right from you here, is that lots of potential ways that they—oh god, I probably shouldn’t say “split the baby”—ways that they could end up coming up with some kind of a middle ground that doesn’t end up fully overturning Roe. But even if that’s the road that the justices, that a majority of the court, does end up actually taking, it still, many advocates for abortion rights are sort of noting, and I think you’re in this camp as well, that any decision that effectively guts Roe, even if it’s not fully overturning it is still effectively the same outcome because of what we expect to happen in the states, if that is what we see this court do. Am I getting that right?
MILLHISER: Yeah, that is correct. And one point that I will make—and I’ve been making this as much as I can because I think it’s very important to understand it—is that the Supreme Court does not need to write the words “Roe v. Wade is overruled” in order to effectively overrule Roe v. Wade. And so, this case is about viability, and so a possible opinion that the Supreme Court could write is they could say, “We decide not to overrule Roe v. Wade. It’s too important to follow precedent,” yada yada yada. “The only change that we are making is we just think there’s a lot of uncertainty about when the fetus is viable. And so, it is up to the states to decide when a fetus becomes viable and therefore abortion can be banned. And if a state wants to say that the fetus is viable in the first minute of pregnancy, that’s fine,” you know.
There are lots of ways that the Supreme Court could write an opinion to dishonestly overrule Roe v. Wade, to pretend that they are keeping some shell of Roe on the books when, in fact, eliminating it. And the one thing I will say about that is that I hope that my colleagues in the Supreme Court press corps understand that fact and that we do, you know, if the Supreme Court tries to trick people into thinking that they have preserved some shell of Roe v. Wade, that no one who should know better falls for it.
VALLAS: So, Ian, you’ve mentioned the word “precedent” a few times. And another word that actually kind of becomes a huge buzz word in moments like this one where there is even a hint of a threat to Roe—here we have much more than a hint of a threat to Roe—is stare decisis. And this is something that a lot of folks, court watchers especially, have been raising in the context of what might the court do, and how much latitude should the court even really have in deciding this case? You mentioned before, as we were sort of setting up this conversation, that the only thing that’s changed since Roe versus Wade and Casey were handed down 50 and 30-ish years respectively ago is the makeup of the court. Talk a little bit about what stare decisis is here and why any decision that overrules Roe, whether literally or effectively, would end up being such an egregious departure from where the court has been, not only on this issue, but in how it handles things that are supposed to be considered settled precedent.
MILLHISER: Yeah. So, stare decisis is the rule that courts should generally, I mean, not always—sometimes there’s like a Plessy v. Ferguson, the infamous segregation decision—sometimes there are cases that need to be overruled. But as a general rule, courts should follow their own precedent. And the reason why is very simple: Precedent is what makes law different than politics. So, what makes a judge different than a member of Congress besides the fact that members of Congress are elected is that judges, first of all, are supposed to follow a legal text. But statutes are often vague. They’re often ambiguous. The Constitution is extraordinarily vague. So, you read the text, and there’s often multiple plausible ways that can interpret it. And somewhere along the way, a court has to do its best job of figuring out what the best reading of that legal text is.
And once that happens, the thing that makes law different from politics is that judges are supposed to follow those precedents. If they don’t follow those precedents, then the court just becomes a political football, and whichever party controls the Supreme Court rules the country because the Supreme Court has the power to veto any law, to rewrite any law, to make the law be whatever it wants the law to be if it isn’t bound by precedent. It is one of the most, if not the most, important constraints on the unelected judges who serve on the Supreme Court of the United States.
And so, if the Supreme Court occasionally overrules a precedent, even if they occasionally overrule a really important precedent, I don’t necessarily think that that’s a sign that the rule of law is collapsing in the United States. But I am very frightened that like, it’s not just that they look like they’re poised to overrule Roe v. Wade. The Roberts court, and especially since Republicans got a supermajority on the Roberts court, has been extraordinarily aggressive in overruling precedent. I think just last term, they overruled an important criminal justice precedent that was only a few years old. Justice Kavanaugh, who is the median vote on the court, has been writing these opinions, articulating new standards for when he’s allowed to overrule precedent that are very flexible. Justice Gorsuch has in his first term on the court—I mean, I forget what the number is—but he was consistently pumping out concurring and dissenting opinions, saying, I wanna overrule this. I wanna overrule this. I wanna overrule this. I wanna overrule this.
And if judges are behaving that way, if they don’t give some deference to what their predecessors did in previous cases, we do not have law in this country. Because again, the Supreme Court has the power, if it just acts in an arbitrary way, to veto any law and to rewrite any law. The thing that prevents it from doing that is that it is supposed to be constrained by past decisions.
VALLAS: So, is the court’s credibility, and even more alarmingly, the rule of law, on the line here if they do overrule what many legal scholars consider to be perhaps the most sacrosanct of settled precedent in the form of Roe versus Wade? Is that some of what this case is an indication of here?
MILLHISER: Well, certainly some of the court, some members of the court, seem to be wanting that. I mean, there was an extraordinary exchange where Justice Sotomayor, after pointing out that many members of the Mississippi legislature said that we passed this bill because we think we could get away with it because the court’s membership has changed, that look. The word that she used was “stench.” Like, it is gonna be very difficult for the court’s legitimacy to survive the stench of having people believe that the only thing that matters is the identity of the justices on the court—are they Democrats or Republicans—and not what does the law say, what do the precedents say.
And that is, I mean, you know, I’ve been warning about things like that. Lots of people have been warning. But to hear a sitting justice say something like that is extraordinary because the court’s power depends on the perception that it is doing something other than pure politics, that it is engaged in a legal process that has rules. If people don’t believe that, that actually, you know, that could potentially eviscerate the court’s power. The court depends on voluntary compliance to enforce most of its decisions. The U.S. Marshals Service, which is the agency that enforces court decisions, there just aren’t enough marshals to enforce every court decision if people don’t voluntarily comply.
And so, judges of all political persuasions normally go out of their way to maintain this myth that the courts are engaged in something other than pure politics. And if you have a sitting justice saying, I don’t know that that’s what we’re doing anymore, then that’s frightening. That’s a justice saying like, I am so worried about what’s going on that I am willing to undermine myself and my institution in order to warn people that bad shit is coming.
VALLAS: And of course, it’s not like this is the first indication that the court’s credibility is potentially diminishing, let alone that the rule of law may be on the brink of collapse. You tweeted yesterday, and I think you summed it up pretty well: “It’s wild that a third of the Supreme Court was appointed by a man who attempted to overthrow the United States government, and we just continue to let those judges hand down decisions.” I think “wild” is probably a charitable way of framing the broader picture that you appropriately remind us we’re sort of watching here.
In the last couple of minutes that we have here, I feel like this is the part of the infomercial where the narrator swoops in and says, “But wait, there’s more!”
MILLHISER: Yeah.
VALLAS: Except here, it’s not a second magic nonstick pan for scrambling eggs for the price of one, right? It’s that the implications of overturning Roe and Casey actually go far, far, far beyond abortion rights, potentially, because of how the Supreme Court has interpreted the right to privacy over the years. And many folks are worried about the future of other rights that stem from the right to privacy, which is what enshrines abortion rights under Roe and Casey, and in particular, LGBTQ rights like gay marriage and even gay sex. What is your read here about whether we see risks that are far beyond Roe in terms of major and massive rights rollbacks?
MILLHISER: Yeah, no. I mean, if you act now, you not only get forced birth, but we’ll also throw in the end of liberal democracy. So, I’ll say two things about this. I mean, one is Roe rests on a legal methodology called substantive due process. And you don’t have to know what substantive due process is. I’m not entirely sure that I know what substantive due process is. But the point is that Roe isn’t the only case that rests on that methodology. Some of the court’s contraception cases rest on similar methodologies. The court’s decision in Lawrence v. Texas, which said that people have a right to not have their sex acts criminalized rests on substantive due process. The Obergefell, the marriage equality decision, rests on substantive due process. And so, if Roe is taken out, there’s a risk that the next thing in line is going to be marriage equality, sexual autonomy, contraception, things like that.
And I wanna say one other thing real quick as we talk about what’s at stake here. And I guess the point that I was making in my tweet is that, so, the primary argument that Mississippi was making, not the primary, but one of the main arguments that they’re making is they’re saying, look. We just want this to be left up to democracy. We want our elected officials to be able to vote to ban abortion, and the Supreme Court shouldn’t be making that decision. And I think that if we were living in a vacuum, like if Mississippi and the Supreme Court is really serious about democracy, I’d be willing to go for that. If they were willing to say, “Yes, these decisions need to be democratically decided, and therefore we should not have four just-, no, five justices actually on the Supreme Court who are appointed by presidents who got into office after they lost the popular vote,” I am willing to, you know, let’s talk about democracy.
If we wanna talk about the fact that not only was Trump not elected by the people, but every single one of his justices was confirmed by a bloc of senators who represent less than half of the country, then, yeah, let’s talk about democracy. Let’s talk about the fact that the former guy tried to overthrow the U.S. government, and yet his justices get to continue to make these rulings.
So, if we had free and fair elections in this country and like one person, one vote, every vote is equal, no gerrymandering, no Senate malapportionment, no electoral college, the Supreme Court gives us back the Voting Rights Act, which they have largely repealed, if we wanna talk about democracy, let’s talk about democracy. And then if you wanna put abortion up to a vote, fine. I think we’d win that vote. But I mean, if you wanna talk about democracy, let’s talk about democracy. But what Mississippi wants here is to have this skewed system that we have that effectively gives extra votes to the Republican Party and then say, after you give all these extra votes to the Republican Party, then we’ll take a vote on it.
VALLAS: Ian Millhiser is a senior correspondent at Vox, author of The Agenda: How a Republican Supreme Court is Reshaping America, and Off-Kilter’s beloved resident longtime court watcher. Ian, thanks again for taking the time to come back on the show, as always, dumpster fire aside, and I look forward to having you back on at some point soon, hopefully under better circumstances next time for a change. Be well and talk soon, my friend.
MILLHISER: All right, it’s great to be back.
[upbeat theme music returns]
VALLAS: Next up for part two of this week’s Off-Kilter: my conversation with Dr. Jamila Taylor and Anna Bernstein, TCF’s resident health care and reproductive justice experts. They unpack what overturning Roe v. Wade would mean for women and people who can become pregnant in the U.S. and what advocates mean when they say reproductive justice is economic justice. Don’t go away. [music break]
Jamila, Anna, thank you so much for coming on the show. And Jamila, I should say welcome back to the show, although the last time that you were on feels like a different lifetime. That was back in the day when you and I were both at the Center for American Progress, and the show was still powered by the Center for American Progress Action. So, welcome back now in its Century Foundation era!
DR. JAMILA TAYLOR: Yeah, it’s a pleasure to be back, and I’m excited to be working with you, Rebecca, in this new capacity as well.
VALLAS: One could say I followed you to The Century Foundation, and that would not be entirely wrong.
TAYLOR: [chuckles] Yes.
VALLAS: So, we heard earlier in this episode of the show from Vox’s Ian Millhiser, why he and other Supreme Court watchers are expecting the Dobbs case to be the one that either fully or effectively overturns Roe versus Wade and eviscerates abortion rights as we know them in the United States. And I am so grateful to each of you for joining the show for this next segment to help break down the human consequences really and what this would mean.
And Anna, I’m gonna start with you, and you actually have written a lot recently in the weeks leading up to the oral argument in this case about what it would mean. So, I’m gonna kick it over to you first to ask kind of the million-dollar question here, which is what would overturning Roe and its counterpart case, which we also heard about from Ian—it’s less well known, but in some ways, more important, Planned Parenthood versus Casey—what would overturning those cases mean to women and to people who can become pregnant in the United States? Researchers warn that we could see more than half of the states begin to enact outright abortion bans. But tell us a little bit about what we expect to happen if this case goes how court watchers expect it may go.
ANNA BERNSTEIN: Yeah, thanks, Rebecca. That’s exactly right. I mean, I think it’s 26 states that are poised to enact bans or already have bans that are on the books that will go into effect should Roe fall. And I think what we’re gonna see is just a further fracturing of abortion access in this country. So, we already know that it depends so much based on what state you’re in, what abortion access looks like for you. And this is just really gonna take that so much further as about half of states go so far as to ban abortion completely or set some really early limits on abortion that just go way beyond viability, the standard set by Roe. And really, we know what this looks like. We’re seeing it happen right now in Texas, and we know what happens when women and people who can become pregnant are denied abortion.
There’s a long study out of ANSIRH at UCSF, and they look at women who are turned away from abortion care and follow them for several years. And the outcomes are much, much worse for people who are denied abortion care. The economic outcomes, health outcomes, their self-reported outcomes of their aspirations, and achieving the goals that they’re planning to achieve are all worse for folks that are denied abortion care. And we’re just gonna see so many more people who are not able to access their care should Roe fall, and these bans go into effect in more states.
VALLAS: And staying with you for a moment, Anna, you mentioned the Texas case, which was just really a handful of weeks ago, and yet it feels almost like itself a different lifetime given how COVID time seems to work these days. And that was a case in which Texas’s SB8 was upheld and did not, as experts have described it, kind of pull the thread that unravels the entire sweater of Roe versus Wade because of what was at issue specifically in that case but really was in some ways the opening salvo headed to today, with the Dobbs case now being heard this week. Many are pointing to it as something of a real-time illustration of the catastrophic harm that comes from banning abortion and/or leaving it up to the states. We can come back to that in a later portion of this discussion, but that’s some of what you’re referring to in Texas.
Jamila, bringing you in next. Access to reproductive justice is already not equally distributed in the United States, far from it. And you and many other advocates have been ringing the alarm bells that low-income women and women of color and people who can become pregnant who are low-income and people of color will be most impacted by any rollback of reproductive rights. Talk a little bit about why that is and why groups who have less access to health care already end up facing particular barriers to reproductive care, even with Roe still in place.
TAYLOR: Sure, absolutely. I mean, basically, we know that populations who have been historically marginalized or disenfranchized from some of the privileges that are sort of experienced in society, whether it’s having access to quality, affordable health care, the ability to have health insurance coverage and pay for it without some of the challenges that fall under having economic disadvantages, we know that these marginalized communities are also largely people of color, low-income people. And because of these historical barriers, when we see these injustices like what we’re seeing with this Dobbs case and the sort of fractures that are gonna come along with that if it is allowed to sort of move forward, is that it’s just gonna make access to health care even harder to access for people that are already experiencing those challenges. And one can even argue that it would actually put abortion access completely out of reach for these historically marginalized communities.
I think another thing to keep in mind here is that because of some of these historical challenges, a lot of them are rooted in economic injustice. So, we’re dealing with communities that are already experiencing issues like inequities in pay. They’re more likely to work in jobs that are low wages. Again, they’re more likely to have challenges accessing health care. They’re more likely to fall on hard times with their out-of-pocket costs associated with their health care. And so, this is really gonna pose some challenges for these communities. And I think it’s important to think about it in a broader way than just like the reproductive rights framing that is in some ways narrow and solely focused on the right to abortion. But also, we’re talking about access to abortion care and some of the sort of multiple oppressions that these communities experience, whether it’s racial injustice, economic injustice, and other social factors that fall hardest on them and impact their ability to live healthy and have well-being and economic security in this country.
VALLAS: And continuing on that theme, which is a big part of why we wanted to do this episode for the show—a show focused on poverty and inequality and everything that they intersect with—a truism that bears repeating, especially in a moment such as this one and which we’ve been hearing from a broad array of reproductive justice advocates in the months leading up to this week’s oral argument, is that reproductive justice is economic justice. And similarly, that it’s critical, that it’s part and parcel of gender equality, which we still do not have in the U.S., despite what some members of the Supreme Court may think is the case.
Yet the state of Mississippi in their briefs to the Supreme Court in the Dobbs case that was heard this week argue that Roe versus Wade should be overturned because Roe—and I’m paraphrasing here, but I’m lightly quoting—is based on a set of factual assumptions that Mississippi claims are decades out of date: so, the idea that, for example, an unplanned pregnancy could change or ruin a woman or a person’s life. So, birth control and adoption end up being the things that Mississippi point to in its brief. They’re now readily available, the state notes. So, hey! A woman can have a career and a family, Mississippi says.
I’d love to give each of you the chance to respond to this line of argument. I’m already almost starting to laugh at that last part, especially given that we’re in the middle of this pandemic still where it’s, I think, pretty clear to everyone that there are real challenges of having a career and a family. But I’d love to give each of you the chance to respond to that line of argument, particularly because it came up so prominently in this week’s oral argument, including from one of the three justices that Donald Trump put on the court, Amy Coney Barrett. And Jamila, I’m gonna start with you there ‘cause I expect that you both have a lot of thoughts.
TAYLOR: Yeah, I mean, the listeners cannot see the smirk [laughs] on my face right now after listening to you sort of rattle that off, Rebecca. I mean, look. I think it’s easy for people with privilege to talk through what they assert are things that, basic needs, which I agree that they are, but coming from a place of privilege and talking about these needs as things that are readily available for everyone. And that is just simply not the case, especially when you think about it in the context of a place like Mississippi, which is in the South where we know is just like a hotbed for health disparities, economic challenges, poor maternal and infant health outcomes, lack of access to abortion and contraception. I mean, let’s be clear. That is not completely true, that contraception is readily available and accessible to all people.
And when we think about these issues in the context for people of color and low-income people, we see that these communities are even further entrenched in having these barriers and inequalities when it comes to accessing these basic needs. And so, I think anyone coming from a place of privilege does need to take a step back and think through, I think, in a deeper way how restrictions or barriers like this impact people that, quite frankly, do not look like them or have the same social or economic backgrounds as they do. So, I just wanna a sort of center the conversation in that way that I think we can’t trivialize the ability of disenfranchized communities or people to have access to the health care that they need, and that health care should be comprehensive. Pregnant and birthing people need access to abortion. They also need access to contraception. And quite frankly, they also need access to the economic advantages that people with privilege are able to access.
VALLAS: And I wanna pull out a study that the two of you cite in a piece that you actually wrote recently for The Century Foundation titled 5 Things to Know About Abortion Access as the Supreme Court hears [the] Dobbs case. And we’ve got a link to this in show notes. You cite a study that looks at some of the cost barriers specifically that you’re referencing where that study finds that 52 percent of women not using insurance or who didn’t have insurance found it difficult to pay for an abortion, 46 percent of women found that private insurance did not cover the procedure, and 30 percent of women delayed or didn’t pay other bills because of needing to pay for an abortion. Those are obviously just three ways to look at cost barriers, but Anna, I wanna bring you back in here as well on this point, because it’s just so incredibly important and seems not to be well understood, shall we say, by as many as six members of the Supreme Court right now, six justices on the Supreme Court right now, at least based on oral argument this week. And we’ll get to the adoption line, right? But would love to bring you in here as well.
BERNSTEIN: Yeah, exactly. I mean, those numbers from that study are, I think, kind of shocking to folks who don’t understand that even with Roe, this network of abortion restrictions that already exists in the U.S. just creates so many additional barriers and costs because of all the restrictions on payment for abortion, as well as laws that require abortion patients to travel further to clinics, potentially for multiple visits. And that’s just for people who are able to access abortion. There’s others who aren’t able to overcome those barriers. And if we see Roe fall and we see bans go into place, we know they’ll be across the South, across the Midwest, and they’ll really just deepen those divides.
And I think another interesting thing that came up in—I say interesting, but I really mean I think horrible—that came up in oral arguments, as you know, as you mentioned saying that the world is not the same as when Roe and Casey were decided, as if contraception didn’t exist in 1992 or 1973. But we know that it did, and contraception is not perfect even if a person has access to it. And I think we know that intuitively, but there’s research that looks at the causal impacts of abortion access when abortion was legalized in different states and then through Roe v. Wade. And women were able to join the workforce in greater numbers, were able to have higher educational attainment, and that was directly attributable to abortion. And contraception had its own benefits, but you’re able to separate those and see that abortion legalization itself had an impact on women’s economic security and well-being.
VALLAS: And that last point, right, is just so incredibly important. I mean, hearing some of the oral argument this week, I mean, I was just like, I felt kind of like Will Ferrell in Zoolander, right, where it’s like, oh, my god. I feel like I’m taking crazy pills, right? Because you’re hearing the justices argue out of both sides of their mouth. It’s like, on the one hand, “Hey! Don’t worry. We’re in this place where now we’re at gender equality, and everything’s fine, and everything’s great.” But it just totally disregards (which we’re not) but which totally disregards the advances that women have seen in the past decades came in large part because of greater access to reproductive health care, including abortion, right? So, to just disregard that and say, “Well, we don’t need this anymore” is it pretty, pretty wild?
I actually wanna bring in a quote from Fatima Goss Graves, who heads up the National Women’s Law Center and wrote a piece for SCOTUSblog, which I feel like sums this point up pretty well. She writes, “In the face of evidence that denying abortion access will set back gender justice advances, Mississippi argues that progress for women over the last five decades means that freedom to determine whether or when they have children is no longer necessary.” She continues, “This argument ignores that economic, political, and social advancement for women came in part because of greater access to reproductive health care, including abortion. Nor does it consider the gender gaps that remain.” So, just it feels like that really needs to be kind of screamed from the rooftops here as we hear the conservative justices sort of make it sounds like the gender equivalent in some ways of that, “Hey, we’re in a post-race society now because we had Barack Obama as president.”
Anna, I wanna stay with you for a moment to go back to the state level question. You started to go there before, and you brought up Texas. We have seen hundreds upon hundreds of attacks on abortion rights in the states in just the past few years leading up to the Dobbs case being heard and argued before the Supreme Court. We mentioned before Texas’s SB8, which many are calling a real-time canary in the coal mine of what will come from banning abortion or leaving it up to the states as some of the justices are trying to kind of spin what’s at issue here. Talk a little bit about some of what we’ve seen in the states, and importantly, what we’re seeing in Texas as we assess where things go from here if Roe does fall.
BERNSTEIN: Yeah. I mean, we are several months into people in Texas who can become pregnant not being able to access abortion care beyond six weeks, which, in the case of many people, means not accessing abortion care at all. And as is the case with all of the abortion restrictions that are passed in these states, states are quick to copycat these laws. And we know in Florida there’s already been a law similar to SB8 pre-filed, so the legislature is ready to pass that as soon as they’re in session. And I think we’re going to see just these restrictions proliferate as pre-viability bans are enacted if Roe falls. I mean, this number of restrictions that you mentioned, these hundreds of restrictions, those are being passed with Roe and Casey still in place, and they’re making abortion access more and more difficult for people of color, for people struggling to make ends meet, for people in the South and the Midwest in particular. And this is only gonna become worse, and as I said, this divide is just going to intensify.
There’s always gonna be people who can access care. They can overcome these financial barriers, geographic barriers. But we’re going to see the divide between these states, between these communities really, really deepen. And there’s some opportunities to mitigate this with there’s medication abortion care, which is available in all 50 states by mail. But that doesn’t work for every patient, that doesn’t work for every person, and it’s not a solution instead of in-person abortion access. We really need in-person abortion care for people who wanna access their care that way.
TAYLOR: I have a follow-up to that, Rebecca.
VALLAS: Please, please.
TAYLOR: And just to also say too, when these restrictions are in place, it also delays the timing for which a pregnant person can get an abortion, and so it just makes it, it could make it more complicated in terms of having the procedure or undergoing the procedure. And so, whereas Anna mentioned that abortion with pills is also available by mail, another reason why it just may not be something that everyone can use is because of the fact that if they’re sort of experiencing multiple restrictions or barriers to abortion care, it could cause them to delay the care, and then they wouldn’t be able to use pills for that. They would definitely need an in-person procedure. And so, I just wanted to lift that up too, as something that we tend to think about in the context of these barriers as well.
VALLAS: It’s a really important point. And another point that I wanna get into that’s a little bit kind of in the weeds, but also feels like it needs to be spoken to given that it has come up so much and came up in the oral argument is well, hey! Can’t people just go to another state if their state has banned abortion? Apparently, a certain Brett Kavanaugh thinks that it’s totally fine that people should just have to go to another state. Isn’t that how this works? How do you even begin to respond to that line of argument?
TAYLOR: Well, first off, again, we’re talking about people with privilege and also someone who does not have the ability to become pregnant [chuckles] commenting on the fact that people can just go to another state. And I will respond to that by saying, look. We started this conversation off talking about the communities that are going to be most harmed by restrictions like this. So, we’re talking about low-income people, people of color, people who have economic challenges or challenges in terms of the amount of money that they have out of pocket that they can contribute to the costs associated with this. I mean, first, abortion can be very expensive. We’re talking upwards of $500+ for an in-person procedure. Plus, on top of that, you factor in any travel costs that may be associated with going to another state, whether it’s gas or a hotel room or a plane ticket, any incidentals that may be associated with that.
And quite frankly, most of the people that get abortions are already mothers, and so they may have to also foot the bill for childcare for the children that they are parenting at the moment. And so, that isn’t even the full list of things that one has to consider if they do have to travel to get an abortion. And quite frankly, that just shouldn’t be the case. Abortion is health care. It should be readily available and accessible to everyone who needs it.
VALLAS: And Anna, same opportunity to you to respond, given that that has been just such a recurring theme as folks have been looking for ways to justify overturning decades of abortion rights in this country.
BERNSTEIN: Yeah. I mean, I think, as Jamila said, this statement comes off totally glib. I don’t think there’s any other form of health care where we would just tell the person to go to another state to access it. For any form of health care, people expect to be able to receive that care in a place that’s convenient to them, as it should be, and abortion care should be no different. So, even if it weren’t for the barriers, and we know those are barriers that are really insurmountable for a lot of abortion patients, it just shouldn’t even be the case. Folks shouldn’t have to travel out of state to receive health care. And we know that that’s already happening. And it’s happening in areas like the South and Midwest where these states are grouped together, and people might have to travel even further. And I think that we’re only gonna see this get worse. And I think we really need to be able to make sure that folks are able to access the care in their own communities.
VALLAS: So, in the last few minutes that we have—and there’s a lot else that we could get into, and frankly, more straw men that need to be taken down than I think we could ever have time to do in one single episode—I wanted to also carve out just a little bit of time to talk about some of the ongoing debate over something called the Hyde Amendment, which gets a lot less attention than threats to Roe versus Wade that trickle up through the courts. This is actually an issue that you have both done an immense amount of work on and that we actually saw some real progress on this year in an important congressional process.
Jamila, bringing you back in. Talk a little bit about what the Hyde Amendment is, some of the debate around it, how it fits into this larger conversation about reproductive justice, and some of the good, bad, and the ugly that we’ve seen on Hyde in 2021.
TAYLOR: Sure. Absolutely. So, the Hyde Amendment is a restriction by way of a rider that’s attached to, that has been attached to our federal appropriations bills over the last, what, 30+ years. And basically, what it does is it restricts funding for, or coverage, I’m sorry, coverage of abortion through the Medicaid program. So, meaning any person that has Medicaid or is a Medicaid enrollee, they cannot use their insurance to cover their abortion care except for in the cases of rape, life, and incest. And so, this has been a hotly contested issue for a long time. Folks in the reproductive justice space have been working to make abortion coverage available not only under the Hyde Amendment, but also under other federally supported or funded health coverage programs, both domestically and through our foreign assistance as well, because there are also abortion-related restrictions to our U.S. foreign assistance.
But this has been a banner year, I think, in terms of our work and advocacy around this issue. For the first time, we saw the Labor-H bill, appropriations bill, be passed out of the House, that did not include the Hyde Amendment for the first time. And so, that’s huge for us, and we continue with advocacy around this issue. There is legislation that is a comprehensive bill that sort of helps to address stripping all of these restrictions, and it’s called EACH Act. And so, that’s also something that the community has been sort of galvanizing around in terms of moving this issue along. But I think the sort of big-ticket item this year has been the fact that it was stripped from the Labor-H bill for the first time.
And this continues to be an issue that is contested because there are folks, you have some folks like Senator Manchin, for example, who typically has been supportive of the right to choose an abortion, but when it comes to issues around coverage of abortion or funding for abortion, he has not been supportive. And so, that has posed some challenges when we think about just the broader work that we need to do, having some moderates that are trickier on the issue of coverage. And it definitely fits within the broader conversation we’re having here about some of these other restrictions. Because when a person does not have abortion covered as part of their insurance, that means that they have to foot the bill out of pocket to pay for that abortion. And we’ve already talked about, at length, about how expensive that could be. And it does cause some pregnant people to forgo basic necessities like paying their rent or buying groceries or other costs associated with supporting the children that they already have. And so, getting rid of these coverage restrictions are really essential and key to the broader work that we’re doing around reproductive justice.
VALLAS: And that’s exactly the thread that I think would make sense to end on ‘cause we are gonna run out of time. But Jamila and Anna, to you both, would love for each of you to have an opportunity as sort of a closing note from this conversation to situate the debate and the fight over abortion access within the broader landscape on reproductive justice and on maternal health by asking the question, what should we actually be doing as a society to support reproductive health, maternal health, and especially Black women’s maternal health? Which is a big area of focus of both of your work and has been a focus of your work, Jamila, for years. It’s actually how I got to know you back in the day when we were both at CAP was because of your leadership in that field. Talk a little bit about the agenda that we would actually embrace if we as a society were trying to move the needle forward instead of constantly lurching from one fight to another fight, even just to prevent rollback of existing and fragile rights. There has been some level of cause for optimism in the Build Back Better debate around the chance to do a little bit of good here. But I feel like it would be lovely to end this conversation on a slightly more positive and forward-looking note than just, “Everything is terrible!” Which I think is how we’re all feeling about the oral argument that we heard this week. And Jamila, I’ll toss that to you first, and then, Anna, you’re gonna get the last word.
TAYLOR: Sure. Absolutely. So, I mean, first, I just wanna start off by saying for those of us working in reproductive justice, we envision a health care system that supports birthing people, pregnant people with a full continuum of reproductive health care. And so, that means access to abortion, access to contraception, access to well care visits, access to comprehensive, quality maternal health care. And so, I just wanna put that out there because the work that we’re also doing around maternal health is not divorced from our fight to ensure that we protect the access to and rights to abortion. These are all essential and key to a broader reproductive justice framework.
But in terms of Build Back Better, I mean, it is an exciting time in terms of where we’re seeing this focus, and I think, attention to Black maternal health in particular. Really quickly, right now, Black women are about three times more likely to die of pregnancy-related causes than white women, and these are largely preventable deaths. And so, the root cause of that is quite frankly, racism, and we just know that Black women just don’t get the same care and support and quality through the maternity care system as white women do. And so, the Build Back Better Act includes key investments in the Black Maternal Health Momnibus, which is comprehensive legislation aimed at addressing this country’s maternal health crisis. It centers Black women in that approach. It’s comprehensive. We’re talking about investments in the social determinants of health, addressing implicit bias in the health care system, putting more funding into the research and supports that are needed to address this issue, just a whole host of investments there.
And then the Build Back Better Act also includes permanent and mandatory extension of postpartum Medicaid coverage. Right now, Medicaid coverage for pregnant people and in the postpartum period is actually cut off 60 days after they give birth, which is absolutely ridiculous. And based on TCF research, we know that funding over 10 years, based on the Build Back Better Act, or postpartum Medicaid coverage, would help support over one million uninsured new mothers over 10 years. So, we’re talking about some really critical investments that really have the opportunity to really put a dent in our maternal health crisis in this country.
VALLAS: And Anna, you’re gonna get the last word on the conversation we should be having, would be having, could be having as a society if we were not just in this terrible and somewhat terrifying, as you described it before, defense mode.
BERNSTEIN: Yeah. I mean, I think in addition to all of the historic and really exciting maternal health provisions that are included in Build Back Better and will hopefully be passed into law soon, there are states, there are groups that are really working beyond this defensive stance and thinking through what really abortion justice would look like. So, not just the right to choose an abortion, but what would it mean if every person who needed an abortion, wanted an abortion could access one? So, there are states passing proactive legislation not just to enshrine Roe, but to really make abortion accessible. I think we’ve seen a lot more attention to abortion funds, which has been really fantastic and long overdue. I mean, these organizations are community-led. The National Network of Abortion Funds has done a ton of advocacy around the Hyde Amendment. These groups are really women-of-color-led. They’re focused on the communities that they’re serving and helping folks who cannot pay for their abortions to fund abortions. And I think we’re seeing people— You know, it’s horrible that it comes at the cost of overturning Roe for people to really turn to some of these groups that are really on the forefront. But I’m hoping that this attention will stay and the momentum will keep up.
And on the federal legislative side, we have the Women’s Health Protection Act, WHPA, which passed the House and goes beyond just codifying Roe, but really creates a right to abortion and a right for providers to provide abortion free from medically unnecessary restrictions like some of the ones we’ve talked about that really add burdens to patients like two-visit requirements and ultrasound viewing requirements. And so, I think there are some bright spots that we need to keep pushing forward in addition to this defensive stance that we’re really forced into.
VALLAS: And we’re gonna have to leave it there, even though there is a lot more that I would love to get into with both of you. But I just, I’m incredibly grateful to each of you for taking the time to break all of this down with us in this incredibly important but also incredibly dark week.
Dr. Jamila Taylor is the director of health care reform and a senior fellow at The Century Foundation, a fellow senior fellow, and Anna Bernstein is a health care policy fellow also at The Century Foundation. Thanks to you both and sending you both good wishes in this historically bad week. [bright theme music]
TAYLOR: Thanks for having us, Rebecca.
VALLAS: And that does it for this week’s show. Off-Kilter is powered by The Century Foundation and produced by We Act Radio, with a special shoutout to executive producer Troy Miller and his merry band of farm animals, and the indefatigable Abby Grimshaw. Transcripts, which help us make the show accessible, are courtesy of Cheryl Green and her fabulous feline coworker. Find us every week on Apple podcasts, Spotify, or wherever you get your pods. And if you like what we do here at Off-Kilter Enterprises, send us some love by hitting that subscribe button and rating and reviewing the show on Apple Podcasts to help other folks find the pod. Thanks again for listening and see you next week.
Tags: Off Kilter, Abortion, roe v. wade