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tv   Roe v. Wade Debate at National Constitution Center  CSPAN  January 6, 2020 3:24am-4:18am EST

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>> the impeachment of president trump. continue to follow the process on c-span leading to a senate trial. live, unfiltered coverage on -span, on deat c and on the free cramp span radio app. >> kathryn kolbert is the attorney who argued planned parenthood v. casey in front of the supreme court. she recently protected the high court will overturn roe v. wade after the 2020 election and discussed with the future of reproductive rights could look like at this event held at the national constitution center. t is one hour. lana: with that, i am delighted to welcome tonight's guest for our conversation regarding whether or not the supreme court's decision in roe should be overturned.
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standing to my left is kathryn kolbert, who recently retired as the constance hess williams 66th director of the center for leadership studies, professor of leadership studies and professional practice in the political science department at barnard college. in 1992, she argued the landmark case of planned parenthood v. casey before the supreme court. since then, she has worked for and overseen different organizations, such as people for the american way. mary ziegler is a professor at florida state university college of law. she's a historian and has written numerous books and articles on this topic. her new book is titled "abortion in america: a legal history" and
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is forthcoming soon. catherine glenn foster is president and ceo of americans united for life. in addition to her work at aul, she serves on the boards of the christian legal society in d.c., the family policy alliance, and he rockville women center. she's a fellow with the james wilson institute on national rights and american founding. please join me in welcoming our three panelists. [applause] lana: ok, so we are here to discuss the future of roe. over the past year or so, may be a little bit longer, there has been a number of state laws and activities at the state level
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bout reproductive rights. go far in protecting reproductive rights. other states have passed laws restricting access to abortion. mary, i will start with you, since you are the historian here. can you start by telling us a little bit more about what has been happening over the past year, and putting that activity in historical context? why is this happening now? and what can the history of the debate over roe tell us about what the states are doing currently? mary: well, i think what has changed -- the obvious thing is the membership of the supreme court. we now have a presumed five justice majority to overturn roe. also what you have seen is, in many states, control of all three branches of government by one party that enables legislators to pass this kind of law. what is striking is that you also see a break from the strategy that groups like aul pioneered, which was to chip away at roe gradually and do what the supreme court would be
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expected to accept. also, restrictions that would play well on election day. and a lot of states, i live in florida, very closed alabama. you see states going further than that, more quickly than that. there are more divides about what the court is going to be willing to do. we are in a moment where there's a debate within the pro-life movement or the antiabortion movement about what the best strategy is going to be. i think that is in part because until now, there has been a uniform target. roe v. wade. we are already in a moment where we are thinking about what the world is going to look like after roe v. wade. i imagine everyone on the panel thinks that that is what coming. there will be disagreements
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about how and why. i think that is a historical moment we find ourselves in. the history is helpful to realize, the goal has always been, understandably, to ban abortion. not to chip away at abortion or let states decide. but to create a right to life that would make abortion illegal. you are starting to see, in some states, states asking for what they want and hoping that the supreme court will allow them to seek it as opposed to catering to what the justices are presumed to be willing to do or what voters are presumed to want. >> catherine, mary mentioned aul and the state level. in alabama, there was a full abortion ban that was passed when the governor signed into law the alabama human life
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protection act. i want to read from her signing statement. statement. she said, "no matter one's person view on abortion, we can recognize that this may be unenforceable. as citizens of this great country, we must respect the authority of the supreme court, even when we disagree with their decisions. many americans, including me, disagreed when roe v. wade was handed down in 1973. the sponsors of the bill believe it is time for the u.s. supreme court to revisit this matter." we believe this act may bring about the best opportunity for this to occur. is that the motivation behind passing these laws? to directly ask the court to revisit that? or is it more of a chipping away, as mary mentioned? catherine: well, you can't really understand alabama without also understanding the
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flipside, states like new york. as you mentioned, you have a lot of people and constitutional scholars, a lot of the public looking at the makeup of the court, seeing changes there. we don't know how those play out. looking at public polling on abortion, particularly on some restrictions or protections for women, things like health and safety standards, informed consent, and things like that. also looking at the abortion rate, which is currently at the lowest it has been since before roe v. wade. also noting, more important than that, the abortion rate among unintended pregnancies. looking at the increasing percentage of women who may not have planned to get pregnant, but still are not choosing abortion. looking at all of these factors, you see that when roe v. wade is
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overturned, we do expect that this issue would return to the state. at that point, we would expect a certain number of states to follow a more new york type path. some will follow in alabama past. most dates would be in the middle, passing some health and safety standards, some informed consent, some other restrictions. but not going so far in either direction. so it's not surprising that this year more than ever, states are taking a look at this and are increasingly introducing bills and increasingly passing some of these bills into law that will, whether they go into effect maybe when roe is overturned or provide some level of protection now, you are seeing that there's a kind of movement happening. lana: kitty, you argued casey,
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you were surprised at the outcome. the outcome was that the court upheld roe and that greeted the undue burden standard. i'm curious about your reaction to what is happening now. is it surprising, a couple decades after roe and casey, that there is talk about going back to the states versus staying as a fundamental right? what is your sense of what is happening? kathryn: well, in the days before casey was argued, we were in the same circumstance we are in now. state legislatures in those days, i was in 44 states, all of whom took up abortion bills. they thought the supreme court was prepared to overrule roe. same thing is happening now. at the time that casey went to
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the supreme court, we expected the court to overrule roe. let me be clear. they did. in the first -- you argue a case, and then the justices go back to their conference, and then they take an initial vote on the case. in casey, the initial vote was 5-4, overruling roe in what is the most extreme standard. that is adopting what we lawyers call the rational basis test, permitting states to do everything, including criminalization of abortion. justice kennedy at the last minute, over a month later, changed his vote when he fully understood the implications of that decision and how that affected the institutional integrity of the court. so, we are now at the point where i don't think the current justices will be as brave as justice kennedy. i will fully predict, unlike my
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adversary here, this court is prepared to over rule roe and return the matter to the states and permit recriminalization of abortion. why do i say that? they have been very cavalier about stare decisis since gorsuch joined the court. more than anything, everybody says oh, justice roberts is going to save the date. he was a good vote on health care reform. justice roberts is not going to save the day on abortion. he was very much a student of justice rehnquist. he was a clerk for justice rehnquist. he believed in rehnquist's views on most of these issues. and it was justice rehnquist who wrote the opinion overruling roe. so in my view, it is absolutely clear roe will be overturned. we will return to permitting states to re-criminalize abortion. the only question in my mind is when. i think this court is politically savvy and will wait
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until after the 2020 election to do this. ok. so what does that mean for all of us? it means that the issue of abortion will return to the states. currently, there are 22 states fully controlled by the republicans. what i call trifecta states. 14 states fully controlled by the democrats. unlike the republicans, democrats don't always fall in line. so it does not seem to me that there is actually a pro-choice majority in those 14 states. i wish there were, but i don't really think there is. in contrast, it seems to me there is an anti-choice majority in the 22 states. so at a minimum, within a year following the overturning of roe, we are going to see 22 states in this country criminalize abortion or take such extreme measures that it means that abortion will be unavailable for women.
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the second thing that will happen is i think we will begin to see more attention to state legislatures, at who becomes a state legislator. if i have one word of advice for people in this audience is if you care about abortion rights, if you care about preserving women's access to legal procedures, you have got to care about who was on the state legislature. in pennsylvania, we are very close to being able to retake that by the democrats. and i think we need to pay strong attention to ensure that our state legislatures not only are pro-choice, are controlled by the party that is willing to enact protective legislation. lana: so, mary, you mentioned that the timing is based around who was on the supreme court. the court has not ruled on the merits since justice kavanaugh has been there. he defended in the june medical services case, about admitting privileges for doctors in the louisiana. was there anything about his dissent there that might tell us about how he might rule? do you agree with what kitty is saying in terms of the outcome? mary: i don't. i can't speak for kathryn, but
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my assumption is that all of us assume that the court will eventually inform or name overturn roe. i don't agree that it will happen as quickly as kitty is saying. if you can take anything away from justice kavanaugh, the court at the moment will be having its long conference in deciding whether to take to medical on the merits. this was just a decision about whether louisiana is admitting privileges law would go into effect. justice kavanaugh dissented from the decision to block the law. he seized on what is one vehicle that you will see the court use.
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but the undue burden test that came out of casey has always been ambiguous. even in its new form, it's very much based on the facts on the ground. the argument was basically, the court has seen this law before. it is the law the court struck down in 2016. this is insulting the court's intelligence that we are having this conversation again. kavanaugh says, the facts are different. there's not enough proof of a variety of things about abortion access. that's a logical vehicle. if there is a barrier right now or any kind of hesitation about overturning roe, it is optics and politics. it is not on substance. the people -- everyone on the court thinks that roe should go.
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they might be worried about doing it in a way that looks partisan or to quickly or jeopardizes the results of the 2020 election. or doing it in a way that makes the institution or themselves look bad. you can do a lot with the undue burden standard without saying anything about overturning roe. without even saying you have overturned the 2016 decision, just by saying that the facts on the ground are different. i would expect that that would be where we would go immediately. i don't know how long we will stay there. there will come a point, if you bring, for example, a law saying we will ban abortion at six weeks after a woman's last last menstrual period, because a fetal heartbeat has been detected. you can't with a straight face say that is not an undue burden under any of the court's precedents. if the court wants to let the states do what they want and not limit it, there will have to be a direct encounter with roe and casey. my reading of justice roberts and kavanaugh is that that might take a while. they might prefer these sorts of -- also, harder to understand. if you are concerned about
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optics, it is hard to explain what's going on with that. if the goal is, if you think roe was wrong and you are trying to move beyond it, you can get away toward doing that without the potential political fallout in the undue burden standard. that is what i would expect to see next. lana: catherine, i'm curious about -- so there are different kinds of state legislation. there's the alabama law, which is more of a ban. the louisiana ban is a fact-based analysis. i'm curious about how, for instance, if you were to challenge the alabama law, wouldn't a lower court have to automatically apply roe and casey? for the supreme court, they might not hear it. it might not even get there. this is a fact-based case. it might involve a little bit more about, let's look at the factors and what is happening. i guess i am curious about how
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that outright ban could even make it to the supreme court. what is your take on the sort of fact-based analysis that justice kavanaugh employed in his dissent? catherine: sure. well, first of all, i wouldn't expect that in alabama style law would be taken up by the court in the near future. i don't think there are many legal scholars who would believe that. for a lot of reasons. i don't think it would necessarily get appealed up to that point. i don't think that is the kind of case that the court is looking for right now. we have been seeing some of the cases they have declined here recently. a recent per curiam on fetal
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remains in indiana. they are looking at these more fact-based issues. we are really, any federal judge is now able to go into the fact, the sociological details looking at how the impact, the supposed impact on women. and then make a decision to potentially strike down the law. it really is going back to the idea of the supreme court, and the entire federal bench, as the national abortion control board. looking at the facts of the situation rather than, you know, the constitution, rather than the precedents that they should be turning towards. we saw that in texas. i would expect that we could continue to see that going forward escorts, and especially the lower courts, are trying to find a way forward. lana: kitty, do you have any reaction to catherine's points? kathryn: let me be clear here. you do not need a ban to overrule roe.
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any law which restricts a woman's access to abortion presents the question of what the appropriate standard is by which courts will evaluate abortion laws going forward. in casey, the court could have reduced us again to rational basis standard of review. that is lawyer speak for allowing criminalization. and in any case, whether it is a restriction or a ban, that same issue is before the court. so i don't think -- let me be clear here. i think it's really a mistake for us to believe that the debate is between regulation and total ban. ok. either present that issue to this court, this court can use
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it to give states again the power to criminalize abortion. that is what we are talking about. and many states will do that when given the chance. why? because they are controlled by a majority that believes that is the appropriate thing to do. and the notion that both the rule of law and moderation will prevail in this particular political climate has gone away. many of the state legislatures that are controlled by republicans have gerrymandered seats. these are not people who care or feel in fear of losing their seats. so they will, they will scream if the political wind calls them to. the same thing with your
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assumption that a lower court judge is not going to go against current u.s. supreme court precedent. we have seen the most radical group of people appointed to the federal bench that we have seen in the last 25 years. they wouldn't even discuss whether or not they thought brown v. board of education is the appropriate law of the land. these are radical judges. they will strike down a bill, or they will uphold a bill banning abortion and force it to be appealed. i think that we do ourselves a disservice to believe that this won't happen. the only reason i'm so emphatic about that is because now is the time to take action. the appropriate action to take is to start supporting state legislators who believe what you believe. whether you are against abortion or pro-choice, the question of how abortion is regulated going
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forward, whatever we believe, will be determined by who sits in harrisburg and who sits in our state capital. it is our obligation to think the most dramatically, to think that this could happen. now is the time to make that change. otherwise, it is too late. you have not only trifecta does in 22 states. you have nine states that have trigger laws. the court reverses roe, it is a law in the book that says you return to the prior statute. that may not be appropriate or legal. it will require a lot of litigation. it seems to me, our best bet going forward is to start taking proactive measures. lana: it sounds like there's a consensus that eventually, the court is going to chip away or directly overturn, it is a matter of time. kathryn: no, that is not what i'm saying.
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i am not saying they are going to chip away. chip away they already did. they chipped away in casey. they went from the highest level of constitutional text into a middle standard. they have been chipping away for 25 years. many states have two or three abortion providers. some states have only one. we are done with the days of chipping away. this court is going to take more dramatic action. lana: catherine, i'm curious if you have a response to that point and your thoughts about the chipping away versus the complete overturning. catherine: sure. first of all, i don't know how quickly the court may take action on this. we do know that most years, certainly about half of the years, plus, since roe, we have seen the court take up a case on abortion. we have seen, in large part, chipping away for close to 50 years now. that really indicates how
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unsettled roe is. it indicates that it is unsettled for the court, that the court has to keep finding new bases to uphold the core tenants of roe, while disagreeing with that original premise, with that idea of looking towards the medical history and the medical legal history. when you go back to 1990, to the casey case, when you go back to that case and you see that the court was turning to rely to uphold roe. they were trying to grasp at straws and trying to find a reason to uphold roe. it's hard for me to imagine a more antifeminist decision, a more antifeminist rationale. when you look at the court saying that women can't succeed on their own, that we can't succeed on a level playing field with men, that we rely upon
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abortion in order to compete with men in society and in the workforce and in order to succeed. and in order to plan our education and careers and family and future. i can't think of a more offensive idea than that. knowing my experience, knowing that in my case, in the case of so many women who i have counseled and comforted and represented, the decision really wasn't one of choice. that we turn to abortion believing that there was no other choice, no better choice. and looking at the experience itself, how, in my case and in the case of many others, our choice, our autonomy were stripped from us behind those doors and the impact it has had on our lives. i would say that it's not surprising.
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it's not surprising when you have legal scholars on both the left in the right criticizing roe and saying, well, maybe i agree with roe as a policy decision, but i don't agree with it as a constitutional matter. because it really isn't based in the constitution. one justice cited a string of cases as part of the president precedent to the decide roe. a few pages later, he said, well, but in fact, these are all quite different cases. it's a different situation, talking about marriage versus bodily autonomy. this is a decision that legal scholars on the left and right, in so many cases, agree should be overturned. we do believe that that will happen. whether that is sooner or later. kathryn: can i take issue with that? [laughter]
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kathryn: i cannot believe -- this is the third time in the last three weeks i have been confronted with this view that it is not appropriate to recognize the right to make childbearing decisions as part of our constitution. our constitution has had a long and distinguished history of giving both decisional autonomy and bodily integrity and protecting those rights by the highest level of constitutional protection. yes, you are right. there has been whittling away. it seems to me, the millions of dollars being spent by the evangelical and catholic church, spent trying to denigrate and take away the rights of women contributed to that. you did a good job, i will give you that. you did a good job. and we were not sufficiently vigilant to protect what we think is important recognition within our constitution. but to say that it is illegitimate or not recognized or not appropriate to recognize
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the most fundamental right, to make decisions about your family, whether you marry, who you marry, whether you have sex, who you have sex with, whether or not you have a pregnancy and you want to carry it to term, or you want to terminate the pregnancy. whatever those decisions are, it seems to me they are fundamentally protected by the u.s. constitution, as they ought to continue to be so. [applause] lana: mary, i wanted to ask a broader question, going beyond the mechanics about how roe may or may not be overturned. during the justice gorsuch and justice kavanaugh hearings, obviously roe was a huge issue and was brought up multiple times. on the one side, you have state
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legislators and governors like governor ivey who basically did not accept it as law of the land and continuing to challenge it. that strikes me as questioning the supreme court in a way. on the other side, you have critics of kavanaugh questioning the confirmation process and the legitimacy of the supreme court as a result. if there were to be a decision, this term or next term, striking down roe or chipping away at it, could that lead to or contribute to criticisms of the court's legitimacy in any way? mary: yeah, it's a lose lose. we are a point where anything the court does about abortion will be perceived as political. if you are someone like justice roberts, who wants to be the hero of the story, it would be
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appealing to do nothing or to do very little or do things in a way that people don't understand. [laughter] mary: really. people are calling me in the media saying, what happened? that is a win. the undue burden test was that. people don't know what it was. if the court overturns roe, and they say they are overturning roe, that could be politically costly for the court. there is lots of polling suggesting that people want abortion to remain legal. polling on abortion makes it sound conflicted. americans seem to like some abortion restrictions but many don't. many do. when you get into the legality or criminalization questions, people seem to think that roe should remain the law.
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i think the clearer the court is about what it is doing -- and the other thing we haven't talked about is, there is a remote possibility that the court will at some point recognize a right to life, which would result in nationwide criminalization. i don't think that is on the table soon. there is some reason to think that should happen. justice gorsuch has interest in national law arguments that would lend themselves to recognizing right to life. i would not be surprised if justice thomas were interested in that. i am the person thinking that it's going to take a while to get to overturning roe. i do not think it is going to happen tomorrow. that is another question. that would be very controversial as well. i think that's probably the single biggest variable in terms of predicting what the court will do and when. the court is probably worried that there could be a backlash, especially if they do something, a very clear opinion overturning roe. i think that is probably the only thing that would either slow down the train -- i think
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there's a real possibility that that will happen. occasionally, people will ask, when will this be over? the answer is never. if roe is overturned, you will see a reverse of what happened when roe came down. you have the antiabortion movement defending a precedent. you have the abortion-rights movement attacking the precedent in court. the fight will come down to each state. many states are in the middle. florida is the ultimate swing state. there will be huge fights. there will be fights in states like alabama. this wasn't consequential before. legislators in alabama said simply, this is a vehicle to test roe. we are not serious about enforcing this. we will expect to see the conflict and testify, not intensified not
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deescalate, regardless of what happens. lana: catherine, what is your take on the legitimacy issue with respect to roe? what will happen if roe is struck down? how will that affect the court's legitimacy? catherine: we have seen legal scholars on both sides question the legitimacy of roe. the clearest perspective on that has come from justice thomas, in particular in one section 1983 case relating to patients' rights to sue. in his dissent, the court decided not to hear the case, and he said that the court should have. he spoke very clearly to his colleagues on the bench, saying, if this case weren't about abortion, if it were about any other matter, then we would have taken this case up. if one of the parties in the case wasn't named planned parenthood, we would've taken this case up. i think that that could be written to almost anybody on the
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court. this is a case that should have been heard. you know, we need consistency and that idea of, who could a patient -- when can a patient sue? and have a choice of medical provider. and the fact that the court didn't take that case is quite symptomatic of the court's current stance on abortion. and not having taken up some of so, you know, we don't know when the court will take up a case again.
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on average, at least the last couple of years or so, the court takes a case on abortion every 2.5 years or so. so we do expect that there will be something soon. but we don't know exactly when that will be. kathryn: let me address the legitimacy question. i am a -- as a lawyer and citizen, as somebody who cares deeply about the constitution, i am extraordinarily concerned that not only is the -- both the confirmation process for justices and the continued feel that the justices are partisan in many of the renderings, their willingness to overturn precedent very cavalierly, in some of the most recent cases, all undermine the legitimacy of the court. and the legitimacy of our justice system is the most important aspect of what preserves our democracy. because the judiciary is that balance, is that check on the other two branches of government. and so we need a court that is not only legitimate in fact but is perceived to be legitimate as well. until we return to a system in
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which partisanship and rancor and, frankly, just talent is recognized in who is being appointed to the court of this country, we are going to be in trouble. ok? and i think that is really problematic. it is not surprising to me, given how many norms, constitutional norms are challenged and have been pushed to the limit by both the current administration and other things that have gone on in the last 10 years. but i think that legitimacy of the court is really, really important. i just want to say one more thing. and i cannot be up here tonight without recognizing the historic nature of today that has nothing to do with abortion. [applause] kathryn: for those of you who don't know, nancy pelosi announced the house will begin impeachment inquiry.
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that is an historic event in our nation. and we need a legitimate court to be able to handle what is going to go forward, not only around that issue but about many, many other issues coming forward, and, frankly, abortion is the least of it, in many cases. you know? i would love to think my issue is the most important. but, frankly, when we are talking about democracy, maybe that is more important than even abortion. [applause] lana: thank you, kitty. actually, tomorrow, the constitution center is doing an event at the atlantic festival over the battle for the constitution, and we will have representative adam schiff there along with his counterpart, and we will be talking, i am sure, about this issue. so you can tune in on the live stream.
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i want to get to more questions before we wrap up. there are a lot. we will see how many more we can do. mary, i will start with you. why do you think abortion is such a salient, political, and constitutional issue in america? mary: it is partially -- i think profound convictions -- i think some of those are driven by morality, some are driven by religion, and it is not going to change anytime soon. the other reason this is true as we have a political system where they are identifiably pro-life and an identifiably pro-choice party. i was in no way historically inevitable, but once that happened, you have parties in some way trying to reinforce social and political divisions
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of abortion for their own political gain. quite often, if you speak to people in europe, they will be puzzled why abortion politics in america are the way they are, and some of it is that americans themselves are genuinely divided by abortion, but part of it is american politics has centered on abortion in a way that is unique. kathryn: i would have a different answer to that in that i think it is all about equality. i do not think it is about a medical procedure at all, and it is about the affront that some people in our nation believe that women ought not to control decisions about having children, and, frankly, decisions about their lives in many ways. to me, misogyny is a huge part of this. it is the unspoken part of it, but if we were really just talking about a medical procedure, frankly, one of the safest medical procedures in the nation, we would not be having this debate. lana: catherine. catherine: i would certainly agree that misogyny is still a huge problem, and that is something that we fight against every day. you know, the fact that we have
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to go to the supreme court to try to defend the rights of pregnant individuals. young v. ups, for example. it is a situation where we do have to fight every day for our rights. that said, that's not why i'm here. i'm here because i have this experience. i know how it impacted me. i am here because i know that a society that says that i can't compete with a man without having legal access to abortion, that is a society that needs to change. i'm not the one -- women are not the ones who need to change here. if we cannot both have children, be pregnant, and simultaneously fully participate in society, fully participate in every
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aspect of our communities and our society and our nation, that is a nation that needs to reevaluate and start developing new ways for women to fully engage in our communities. lana: kitty, i will start with you for this one. what happened during the one-month period that made justice kennedy change his mind in casey? kathryn: i don't know. i have talked to a number of clerks who worked for him. i think twofold. one is, once justice rehnquist wrote the opinion, and he understood fully that full criminalization would have been permitted, he began to rethink how that would play in america. i think it all comes down to his concern about the institutional integrity of the court. if nothing more, justice kennedy was always concerned with that
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and did not want the court to be perceived as a body that would change based on who appointed a particular justice. that the rule of law was imported and stare decisis was important. clearly, under the current rules of stare decisis that were applicable at the time of casey, there was no reason to change the law, unless you abandoned those basic principles. i think that's at the heart of it. there was also -- justice o'connor who was very key in being able to help him through that. her view, i think, while she adopted the undue burden test, the joint opinion in casey was a much more protective undue burden test than justice o'connor had previously adopted.
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and i think that, for her, it really was an understanding of what some women, particularly battered women, were going through when they faced an unintended pregnancy. that point of view, her concentration on the facts there, helped justice kennedy understand that there are some circumstances in which criminalization would have been bad. lana: mary, given the current composition of the court and the fact that this administration might have a third pick, how significant is the 2020 election to the future of roe and casey? mary: i think it is still significant. one of the things we are talking about is the legitimacy of the court. there have been a lot of proposals about changing the court. people have talked about term limits. people have talked about court packing. clarence thomas, might, you know -- it's always significant. it is not as significant, obviously, as going -- anthony
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kennedy -- i call a lot of my courses the anthony kennedy farewell tour, because he was the deciding vote on everything. right? so his departure was major in a way that almost nothing else could be. but i think it is still significant, in part because we are talking so much about even what the basic structure of the court should look like, and in no small part because of decisions like roe. i think it is also significant just insofar as the court may be reading tea leaves about whether this issue matters to people. right? i mean, if we are talking about the court's potential angst about public perception to a decision, if abortion is clearly a major issue in the 2020 election, that sends a very different message than, you know, there are many, many issues. people are not as focused on their voting is not focused on it at all, then that might not send the same signal to the court.
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lana: catherine, is it possible or reasonable to mention a decrease in the number of abortions occurring without talking about access to contraception, birth control, iud's, and those kinds of issues? catherine: sure. there are many reasons why the abortion rate has decreased in america. obviously, the cdc and other entities have been analyzing those. they include things like contraceptives, they include some of the laws that have been put into place, they include things like resources for pregnant women. some of the centers that are out there, some of the governmental resources that we provide today that perhaps we did not provide always and prior decades, just a number of different ways in which we are increasingly reaching out to women and walking them through what can be a difficult and scary process. so as we improve that, as we improve our community support and our governmental support, we
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are seeing increasingly -- and as women, similarly, scientific advances, medical advances, things like ultrasounds, etc., women are increasingly able to pursue other avenues. whether it is parenting, placing a child in a home for adoption, or any of the other options. as well as preventing pregnancy. kathryn: so our institute has looked at this very clearly. yes, we are at the lowest number of abortions. they are not able to say what that reason is. i agree with you on that. but i have to tell you that i do think increased access to contraception and the availability of contraception under obamacare and the expansion of medicaid in many states, giving women greater
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access to family planning, is a big contributor, along with the fact that there is fewer women of childbearing age post the baby-boom booming. i think the important part here is that the current administration is going backwards on all of this. they have enacted the gag rule. they are reducing women's access to contradict that contraception in a whole host of areas. they are reducing funding for planned parenthood. however you read the data, if you eliminate contraception to young women in america, you are going to increase abortions, whether legal or illegal. we have an obligation to make sure that doesn't happen. lana: well, we only have a couple of minutes left. there are so many more questions i wish we could get to. i want to close with one final question, which is the actual topic for debate. the question is, and i will start with you, mary, should roe v. wade be overturned? mary: oh, boy.
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i the historian on the panel, feel bad answering this question. i don't think so. like i said, i think this is going to be an endless process. i think in some ways, it's the only sort of comforting message of you don't want roe to be overturned, it's not going to be. roe v. wade -- there will be more of this to come. and i think, if you recall, after roe, there was a sense of complacency among the winners and a sense of people being fired up when they lost. i think that will be a historical moment we find ourselves in very soon. there are perils to winning. that is a lesson of history very much from the abortion debate. lana: catherine? same question to you. should roe v. wade be overturned? catherine: roe v. wade should be overturned.
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it is a decision that is not yet settled. we have seen that in the abortion cases through the subsequent decades. we have seen that in the opinions of legal scholars and the movement of americans who oppose abortion and are continuing to fight back on this. we see it in all of the states, where women and men are proposing and passing bills that would roll back roe v. wade, that would provide increased protections for women, that would, in so many ways, take away from that roe regime of unlimited abortion. it should be overturned because it is not firmly based in the constitution, as we have seen from so many of these legal scholars who have said, that, you know, believe what you will about policy elements. this is not a decision that finds its moorings in the constitution. and so i do expect that it will
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be overturned sooner or later. lana: kitty, last word to you. showed roe v. wade be overturned? kathryn: no. [laughter] kathryn: for a couple of reasons. firstly, i think it is very firmly and well grounded in our constitution. there is no doubt in my mind about that. every court that has looked at that question for the last 50 years has agreed with that. to say it is not firmly based in the constitution is just wrong. more importantly, why shouldn't it be overturned? because it seems to me, fundamental questions about whether you have children or you don't, whether you are sexual, whether you are not, whether you marry and who you marry, ought to be left to the individual and not the state. and if you take that away from people, the biggest impact is that poor women, young women, women of color, women who live in rural areas, who live in states which have fewer resources, are going to suffer serious health consequences.
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some of those women will die. thankfully, not as many women will die today as they did in the days before roe. but women will die if you recriminalize abortion. that, to me, is an abomination , should never happen in our current society. and we want to take every step we can to ensure that women have access to safe and legal medical procedures. [applause] lana: thank you so much, kitty kolbert, mary ziegler, and catherine glenn foster, for being here tonight, and thank you all for coming. [applause] [overlapping conversations] [captions copyright national cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> c-span's "washington
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journal," live every day with news and policy issues that impact you. coming up this morning, we will preview the week ahead in washington with national journal's zach cohen. can we talk about escalating iran tensions with been have benham ben -- taleblu. craigshington post's whitlock discusses the afghanistan papers. offered whatsors the president's impeachment trial might look like in the sun and give some background on ukrainian politics. hosted by the american law school, this is one hour and 45 minutes. >>


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