 Good afternoon. I'm delighted to welcome you on behalf of the McLean Center for Medical Ethics, the Department of Obstetrics and Gynecology, and the Bucksbaum Institute to this hour 21st lecture in the 2016-17 series on reproductive ethics. Before I introduce our speaker, I just learned moments ago from Dr. Julie Core, raise your hand Julie, who along with Katie Watson from Northwestern has been working with Oxford University Press to possibly print the papers that have come out of this series. And Julie tells me that just earlier this week, she's heard from Oxford that it's quite likely that this will go through and that the series then will be available in time as a printed volume. So Julie, congratulations. It's now my pleasure to introduce our speaker today, Professor David Strauss. Before joining the law school faculty in 1984, Professor Strauss worked as an attorney advisor in the Office of Legal Counsel of the U.S. Department of Justice and was an assistant to the Solicitor General of the United States. David is published on a wide range of subjects. One of his greatest distinctions is recognition as an expert in constitutional law. He's the author of a book called The Living Constitution, also published by Oxford University Press. Along with Jeff Stone and Dennis Hutchinson, Professor Strauss edits something called the Supreme Court Review, an in-depth annual analysis and critique of Supreme Court's recent decisions. Professor Strauss has argued 18 cases before the Supreme Court. In 1990, he served as special counsel to the Committee on the Judiciary of the U.S. Senate. He served as chair of the Board of Trustees of the University of Chicago Lab Schools. He did so while our four kids were there, and he did a fabulous job, and as a member of the Board of Governors of the Chicago Council of Lawyers and as a fellow of the American Academy of Arts and Sciences. Today, Professor Strauss will talk to us on the title Legal History of Contraception and Abortion in the United States. Please join me in giving a warm welcome to David Strauss. Thank you, Dr. Siegler and Dr. Korp for inviting me to speak to you all, and thank you all for coming. A colleague of mine got my talk jumbled up on her schedule with another talk, and the other talk was entitled A Woman's Perspective on Receiving Care in a Religiously-Affiliated Institution. She sent me an email saying, could you send me the text of your talk? So if that's what you're expecting, I think that's probably a lot more interesting than what you're going to get from me, but however qualified or not I am to talk on this subject, which is something you'll have to figure out as the inspection goes along. However qualified I am to talk about this, I guarantee you I wouldn't talk about this without the other subject. So what I would like to say a few things about is the Legal History of Contraception and I want to focus especially on recent developments in the news, and I'm sure I could have talked more about what was going on. I'm just wondering if you want to know more about what was going on. The President is collected, the President and the Customs and is generally acknowledged as an authority and is very influential in the U.S. The significance of English common law to us is when the colonies were free from England they, of course, didn't try to reinvent everything, they adopted English common law and it became the law in the colonies and then subsequently modified, but it was very influential at the beginning and actually continues to be influential today. The key distinction there so far as we can tell was the distinction between quickening and the period of time and pregnancy before quickening. Quickening when the woman could feel the child in her. Abortion, so far as we can tell. Abortion after quickening, even after quickening, was generally true as a minor crime. Sometimes apparently not even true as unlawful. You can't really tell as a regulatory clear how many prosecutions there were, so we're not sure about that. We do know abortifations were available, men abortifations were available in classical Greece because they were certainly available in early modern England, but so far as we can tell at least it was not a big deal. It was not something to be an authority viewed as a high priority for law enforcement. The big change in the United States, we can hear it as I said, the big change in the United States really didn't happen until the 19th century and really not until well into the 19th century, about the 1820s or 1830s. And it happened as I say here about 1840. It happened after and probably at least to some degree as a result of the so-called second grade awakening. The second grade awakening was a birth of religious and a special evangelical activity among Protestant churches in the United States at that time in the early decades of the 19th century. And that religious revival seems to have led to, in an event there was, a series of laws in many places forbidding post-quickening abortions. Now these laws were generally directed not at women themselves but at the apothecaries who were providing the drugs. Abortion was generally conducted that way. As you might suspect, medical, surgical abortions were, surgery generally was not as primitive and surgical abortions were hardly known. The only notable thing, as I say, is that the line between abortion and contraception was not clear and a lot of products were marketed as things you could do to save off pregnancy and things like that. It really wasn't clear whether these were contraceptive means or abortions. And of course a lot of them were followed. Neither are a lot of them were followed just across the chemical that had very uncertain effects on women. So the way we think of things today where they're contraceptives and then there are abortion and those are really sort of different universities, that wasn't at all clear, in fact, in these laws as far as you get going. In any event, by 1841 there was a distinct departure from the earlier English way of approaching these issues. And 10 states, which is then as you see over a third of the states in the United States, forbade abortion post-quickening. Pre-quickening abortions, so far as we can tell, either were legal or they were truly minified misdemeanors, at least up until the Civil War. The other notable thing about this period is the role of the AMA. The AMA at this point was really just coming into being. There were issues about whether it would be influential, whether doctors would be recognized as a perfection, and maybe AMA was trying to establish itself and trying to establish its role in the profession. And the AMA, after some internal controversy, took a position strongly opposed to abortion. And the AMA, of course, did not represent all doctors, but it did take this position. And it was the people in the AMA who moved to this position were explicitly influenced by their religious commitment. So here's where you really begin to see what we know very well today, which is the commitment of religious groups, certain religious groups on this issue to take. This is a high priority issue and something they wanted to take and are very explicit, very public, and they hope very influential. And then the next year, in this story, has to do with this guy, Comstock. He was a crusader against, well, against a bunch of stuff, he was a crusader against insanity, he was a crusader against contraception, also against abortion, although contraception was really the big issue. I don't want to glance over his picture that quickly, why would you not want to stare at that for now? He was a major figure at the time, really a very influential figure in this period. He focused on federal laws because he thought that would be more effective than operating at the state level. And federal, the federal government at the time did not have the sorts of powers it had today. So a lot of the laws directed at obscenity but also for our purposes directed at contraception and the limited degree of abortion, a lot has to do with the mail. We're putting things in the mail because the federal government can regulate the mail. So the Comstock Act of 1873 forbade the mailing of contraceptive devices or advertisements for abortion or contraception. And this was sort of seen, there were also laws inspired by Comstock that forbade the mailing of a clinic area. And this was all seen as part of the same package. This is all kind of the same stuff. Today, of course, that's not in the insanity law. The insanity law exists today. It really is hardly anything left to it. But it's certainly seen as quite distinct from the issues about contraception and abortion. Not so back then. This is all bundled into one sort of package of unhealthy things having to be closed and unhealthy things having to be assessed. And Comstock was a big mover. There's a meaningless little personal anecdote. Mark mentioned an argument in case you missed it in court. Many of them I argued when I was in the Justice Department representing the United States. And one of my first arguments was a defense of a federal law that forbade the unforeseen mailing of advertisements for contraceptive devices. When you work for the federal government, you're aware for the federal government you, in most cases, will defend the laws on the books unless they are utterly indecensible, if you've got to defend them, even if you think they're not the law. A Congress passed them during the executive man. You defend them. So I was with 28 years old at the time and I was up there defending this law. And there were these stories in the newspapers or the TV about this case. And what are all the stories featured? That's what they featured about my case. I mean, that's kind of who I was. And I didn't like that. And we got quarreled in the case. We lost my message. But we probably did. I didn't think those were times that we probably would reverse that. One other anecdote from that? Here's another little anecdote from that. One of the arguments we made for the government was, well, this is unsolicited contraceptive advertisements and it's reasonable for people not to want male advertising commons coming into their homes and they didn't want it. They didn't solicit it. It didn't matter if not be there. Their kids might open it and then they have the conversation that we were hoping to have a little bit later but now you have it now because your kid is open to sing. So I made this argument for the Supreme Court and Justice Marshall. Justice Marshall, a great man of the law, one of the great, really, that might be the greatest lawyer of the 20th century who really played against racial segregation, said, Mr. South, if my kids ever opened a piece of my mail, I would never let them do that. Now, when a justice says that to you, they're a limited number of things you can say back to them. One of the things that you can say back to them but that unfortunately at that point I couldn't was Justice Marshall might be open to my mail all the time. Now, I didn't have any kids then so I couldn't say that because you can't lie to the Supreme Court. Anyway, the Comstock law survived. The point is that the Comstock law survived up until whatever year that was, the mid-1980s in some form or another until they were either repealed or the Supreme Court said they were unconstitutional. In addition to the federal Comstock law having to do with the mail, there are also so-called little Comstock acts in some states which are often much more severe. And the enforcement of these laws often took a very ugly turn with people generally, I think so far as I know, entirely women who were trying to provide contraceptives being, in some cases, dragged out of their sore funds punished, criminally locked up in prisons for extended periods of time because they were distributing contraceptives products of violation of these state laws. Comstock himself, that guy, he was actually appointed a special postal inspector so he could himself enforce these laws against mailings of contraceptive devices. So it wasn't exactly a vigilante campaign but he had some of the fields of vigilante campaign against the distribution of contraceptive devices. So in a matter of less than a century, the United States went from a place in which maybe late abortions were criminalized and maybe even then not that severely to a place where if you distributed contraceptive devices you could be physically attacked by law enforcement officer and imprison for a year or more. So that was a dramatic change during this time and customarily attributed to the results of the Great Awake if not to sort of suggest that people involved in the religious revival were in favor of these draconian measures but the origin of the things that lie in that period. Okay, by the late 19th century you had this situation. There were laws forbidding abortions in every state. Both pre and post quickening, there was an exception if a doctor said that abortion was necessary to save the life of the woman. And that's the structure of the laws in every state had laws forbidding it in most states allowed only that very limited exception. The medical profession was divided and there was organized opposition to the anti-contraceptive laws and to some extent anti-abortion laws and that organized opposition often included doctors. So the sort of homogeneity that the AMA starts to impose on doctors did not last and doctors at this point were quite divided. The other notable thing about this period is despite the sweeping laws there were so far as we can tell enormous amounts of evasion. Now it's of course hard to figure out how much evasion there is because by definition people are not breaking the law openly. But by definition it's evasion and people are not going to break the law openly. So then as we chew up and throw against weight it's very difficult to get accurate numbers on the number of illegal abortions. But so far as we can tell they were very substantial. There's the number. So far as we can tell about one-third of pregnancy is in the movement. Despite these extremely severe laws in the background of partial enforcement. Okay, the next era belongs to as anyone to Margaret Sanger. Margaret Sanger was a crusader for contraception in particular also for liberalizing abortion laws but very much for for promoting contraception making contraception widely available to women. This was another sort of turning point a sort of turning point in the early part of the 19th century and then a turning point at the very beginning of the 20th century. And I can't decide at this time of course much more urbanization people living in cities people living farms or living in cities much more immigration. At this time I think the first I think this is actually the first decade of the 20th century on a percentage basis relative to the population of the country to have more immigrants entering the country in that decade than in any decade since relative to the population of the United States. So a tremendous amount of immigration to some extent women moving into the workforce a re-examination of women's roles and all of that was sort of part of these challenges to contraceptive laws by people like Margaret Sanger. We often took the form of civil disobedience to deliberately violate the law to make a point of being imprisoned in order to set yourself up as a sort of exemplary of this movement more open acknowledgment of women's sexuality of what we've seen as the Victorian recession of the late 19th century all of these things were part of the package that included efforts to liberalize abortion and contraception laws. Contraception was the bigger arena of controversy at the time. With controversy, I mean it was Margaret Sanger against the world but this was much more of an overt presence than it had been even a few decades before when the opposition was much more covert and evasive rather than open and challenging these laws. Now, a part of this picture and I don't want to overstate this because I actually don't know enough to give you a sense of how much a part of this picture it was, but a part of the picture was was this, that there was an element in these attacks on anti-contraception laws and some extent anti-abortion laws that said really contraception emphasis on birth control. The elements of nativism and anti-catholicism and the Catholic Church was then as even now a big opponent of contraception and abortion was a big player in politics where these movements were set up in opposition to what they perceived as the excessive influence of the Catholic Church in politics but it went beyond that there were undertones of really prejudice against Catholics in the United States as I said this was a period of enormous immigration especially immigration from Catholic countries, Ireland and Italy and the feeling that these people are diluting our faith and they will reproduce much more rapidly than we do that was part of it. Now as I say, how big a part it was I don't even want to say I think it's controversial that this sensitive Margaret Sanger herself described these ideas I don't want to suggest that about her but it was a piece of this the opposition immigration the feeling of the country that if birth control were not made widely available and more or less kind of pushed into the culture these new people would take over and I lose the protest and stop of America. Now as a people they say how big a piece I can't say but that's something that can that really can be really can be ignored By the 1930s or in the 1930s we began to see opinions generally changing the opposition the contraception diminishing and a sense of contraception that would be made freely available becoming the dominant view the AMA officially changed its views in 37 and then between 1940 and 1970 we saw really a rollback of the laws that have been put in place in the 19th century By 1960 nearly every state had revealed contraception laws once the pill was licensed for life by use of course to remain the same dramatically the other thing going on and this ties into today's debate is about abortion laws and there were really two distinct phases and this is a part of the story that's actually still with us in important ways today Between 1967 and 1970 you had a very substantial way of liberalization if that's the way you want to use. I don't want to beg any questions about the morality of abortion but just to have a time to use making abortion more freely available. There you have the number of therapeutic abortions meaning that an abortion would be legal if a physician said it was needed to protect the health of the mother a much easier standard to satisfy than the life of the mother which was the standard in some states before then health being left vaguely defined to include lots of things is often relatively easy for women to get therapeutic abortions and four states simply committed first time after abortion without any requirement of a doctor to certify anything still two thirds of the states for date abortion and allowed only the old exception for the life of the mother but the movement took place during that 1970s and the feeling at that time was okay this is the way that the future that abortion laws are going to be liberalized, abortion is going to become more freely available, it's started with a big urban state and it's going to spread graphically that was the feeling at the time. 1970s that stopped they didn't know that then they only know that in retrospect in 1970s that stopped no further liberalization against the liberalization and some of the laws that have made abortion more freely available were almost repealed often by referenda which is to say that the liberalization was conducted by legislatures but the people opposed abortion wanted to take it to the people and get the voters to vote against it not filtered through an opinion in the legislature so between 1970s and 1973 we're not seeing any more liberalizations but it's even more dramatic than that at the time if you were trying to gauge where things were going what was the tide of history between 67 and 70 you would say as I said okay things are becoming less and less restrictive more liberalized by 70 or 73 you would be thinking oh I got that wrong things are being rolled back I'm not so sure about the tide of history the next major steps did not take place in the legislature, they took place in the court and that kind of is where things I don't want to say where things are today but the Supreme Court is obviously and of course generally are big players in this issue today that really began in the mid 60s with people against Connecticut and of course it went against Wade in 73 Wigwold is a I mean it's a case that has outsized importance in constitutional law but the actual issue it involved was in some ways I don't want to say trivial but was not that important an issue Connecticut was one of the states that had never repealed the fancy contraceptive law from the Compsom era and Connecticut still had a law on this book that forbade the use of contraceptives by any means for the purpose of presenting prejudices now that meant a married couple if they used a condom right from getting pregnant it would be violating of them and you might think you know come on did they really enforce this well they didn't enforce it against married couples what would that look like it was used to close down birth control clinics in Connecticut it was not the sort of thing that's on the books the intention to it that's not quite right was used to close down birth control clinics but in some ways it was an extremely easy case for the Supreme Court to say oh come on this law must be unconstitutional because it was so invasive and also very easily invaded the law said it's illegal to use contraceptives for the purpose of presenting pregnancy if you're using it to prevent the heat well then you're in the clear well you know trying forcing that law apart from the difficulties of proof and so on so the law came to use the Supreme Court as an outlier so it was the only place anymore that had a law like this and also like this thing that no one really took seriously but was used to harass birth control clinics in New Haven and the Supreme Court said that's unconstitutional now it was a controversial decision which was sort of a more than you need or I'd like to know about the Supreme Court law it was a controversial decision because it was difficult to identify any specific position of the Constitution that said anything about contraceptive or abortion or anything like that and the Court kind of the majority came into the Court kind of cobbled together a bunch of stuff and said well you know you got this amendment talks about streets you got this one talks about self-impermination and you got this one talks about streets and seizures and it's also actually a privacy area it's good to get out it's pretty unconvincing another opinion it talks about tradition a little bit more convincing one of the opinions talks about the outlier status of the law which is you know a little bit closer to what you might think would be a constitutional principle or that everybody else would have gotten rid of a law maybe the states would do but the basis for it was uncertain you could not point to us for the reason of the Constitution that oh listen please please um the significance of that is that when Roe against Wade came along with the Supreme Court uh 60 million from the papers and also from recollections of law the Supreme Court actually thought oh we basically crossed this bridge already the issue is you know is there a right to permeate a pregnancy and the argument is going to be well I don't see anything like that in the Constitution okay fair point but we've settled that in Griswold that matters the sexual economy with respect to the Constitution in some way that we were just we had trouble articulating then but in any event that's now behind us we've faced that down Griswold kind of settled in no one's fussing about it anymore this is the next logical step of course it turned out to be anything but Griswold no one fights about that anymore no one thinks that contraceptive use should be outlawed and abortion has not stopped being a device of a device of issues the Roe against Way decision itself established this distinction among trimesters which the court later abandoned saying abortion could not be forbidden in the first trimester in the second trimester it could be regulated but only to protect the health of the woman and the third trimester because the interest in fetal life there is strong enough it could be forbidden in order to protect fetal life with an exception for the health or life of the mother that was the framework that Roe against Way but out the court later abandoned that or at least modified it substantially Roe against Way had this effect of making abortion no longer an issue that was principally being brought out in politics and legislatures but instead it was not going to be brought out in the court at the time it wasn't when they decided the case it was not actually clear with the controversial even in society at large quite apart from their view that this is all about things that aren't really in the constitution that are especially in the constitution and we settled that in the opinions of the justice who wrote the opinion of the court in Roe against Way justice Blackman in his paper there was a clipping of a Gallup poll that was taken shortly before the 15th case and was something like 50% of the country favored free access to abortion according to his post so we know that the justices and we suggested to Roe the opinion very likely all of them were under the impression that this is not going to be a particularly controversial thing, it's going to be widely accepted one argument about Roe against Way this is very controversial in legal and historic circles the argument that's been described to by some people who know what they're talking about is Roe against Way was actually a step back for the cause of abortion rights and the reason it was a step back for the cause of abortion rights was it mobilized the opposition the argument is liberalization was preceding step by step in legislation that's not so clear given the pushback in the 70s and 70s this is the argument Roe against Way came along and re-passed all that and instead of going step by step and building a consensus and popular opinion Roe against Way effectively declared unconstitutional the laws of 46 states we've had more limited abortion rights than Roe against Way provided and provided a kind of focal point to the opponents of abortion to latch on to the Supreme Court is doing this to it so instead of opponents of abortion liberalization being able to go step by step look their way through the political process building a consensus in Colorado and Minnesota and New Hampshire and New Jersey instead of doing that now the opponents could say this has been done on a nationwide basis that are consent by the court and that's the mobilized opposition and it is the case that evangelical groups became interested in involvement politics to a greater extent post Roe against Way than there had been before and to some extent not completely of course but to some extent evangelicals were planted Catholic as the main force of opposition to abortion among the groups and at least temporarily you can see that aligning with Roe against Way evangelical groups a lot of them previously would have nothing to do with politics the separation of the two domains the sacred and the profane the more interested in Roe in our America the more interested in Roe in our heaven that Roe against Way changed that to some extent that has to be overstayed it has to be more than just a decision it has to be there are other things going on at the time if there's going to be that sort of change in the political dynamics that are influenced by religious groups but the argument is in any event that Roe against Way mobilized the opposition and instead of the kind of incremental movement that would have continued in providing abortion rights on a large scale you got this very massive push back against what the 15th was like at that time one of the people who has endorsed this idea through degree not completely but through degree as we state against her great pioneer of women's rights litigation who criticized Roe against Way in the Hispanic and too far too fast that the court should have done Roe again the law involved in Roe itself is a Texas law that allowed the exception only for the life of the mother the court shouldn't have sent it to her framework that she just said no no you have to allow an exception for the health of the mother as well and then let that settle in and maybe take another step after that that would have allowed a consensus to build and have waited mobilizing the opposition and to reduce the better results so a lot of historians will tell you at least will tell you no that's actually not faithful to the facts this opposition to abortion rights was building anyway as a state liberalized abortion we would just be paying attention to what was going on the opposition is going to come out Roe against Way to no Roe against Way and their argument would be you know what Roe against Way did was to give people a way and it's a lot harder to take a way to raise some people than it is to establish it and for Roe against Way you know even if to some degree mobilize the opposition the argument is those people in that blind is on they saw what was coming they saw people trying to liberalize abortion rights they knew they had to organize but now they were in the position of trying to take something away from people that's the kind of argument and I know there is no consensus on this view I don't know enough to know which view is right people bring up one more evidence about this case in the late 1980s as a result of this reaction there was a concerted campaign to get the Supreme Court to overrule Roe against Way in 1989 the Supreme Court decided a case in which it's being very close to doing so Justice Blackman and Alperos the opinion in Roe against Way wrote a dramatic something similar dramatic dissent which he said you know I'm very old I might read before soon what I do I bet they're going to overrule Roe against Way I'm I'm more eloquent than that but really kind of raising warning flags that Roe against Way might be overruled and states would then be free to go back to prohibiting abortion and at that point an interesting thing happened that to some extent bears out the arguments of people on Roe against Way when Roe became a political when the possibility of overruling Roe against Way became to be seen as real there was actually mobilization in favor of it and mobilization in favor of against the efforts to cut back Roe against Way and to do what the people on that side thought was perfect in the way to reproduce freedom there were two gubernatorial campaigns in 1989 in New Jersey and Virginia and abortion was a big issue in the Virginia campaign it might have been in New Jersey too I don't remember but definitely a big issue in the New Jersey campaign and it was a winning issue for the pro-abortion right spot that was the consensus among politicians and pollsters so the way this lands some support to the Justice Ginsburg Roe against Way mobilized the opponent of abortion made the preference of abortion rights complacent they thought okay I think for a settlement we don't have to pay attention to this issue once it became clear that there was a possibility Roe against Way would be overruled they mobilized they counter mobilized they could no longer be complacent and it turned out there was a lot of possibility in that side as well the next big step in a law was this decision by the Supreme Court at least from then until 1992 until today Roe against Way would not be overruled the Supreme Court reaffirmed Roe against Way in Planned Parenthood of Southeast Pennsylvania against Casey but re-arranged its confidence re-arranged the legal landscape in these ways it said pre-viability abortions cannot be forbidden but they can be restricted as long as the restriction does not impose an undue burden it's the kind of thing that the lawyer has a bad name an undue burden is something that puts a substantial obstacle in the path of the women okay great I get it now an undue burden is a substantial obstacle what's a substantial obstacle why debt is the kind of thing that imposes an undue burden really a kind of an unhelpful definition of what exactly a state could do post-viability abortions could be forbidden exceptions which by then had a substantial support over the course of many decades for the life and health of the mother so predictably the issue posed Casey after the case why what's an undue burden how far can states go in forbidding pre-viability abortions without running into without imposing an undue burden it could be unconstitutional and until recently and even today all we've really got is a bunch of examples not really a coherent theory about what's an undue burden but here are some examples we have the most significant one probably is the Hyde Amendment and things like the Hyde Amendment which forbid the use of federal government funds and the Hyde Amendment to reduce the federal government funds for abortions would be very limited exceptions some states also forbid the use of state funds for abortions with similar exceptions and the most significant there's a federal fund potentially to fund abortions in many instances VA hospitals for example but the most significant one of course is Medicaid funding for poor people and that the federal part of Medicaid funding for abortions is forbidden Medicaid is a joint federal and state program of course and some states allow for funding to not other things that we know are funding parental consent for if a minor is under 18 and is not emancipated the physical bypass means that a state if the state requires parental consent it has to allow mechanisms for the child to go to court and say I can't put my parents' consent because they'll abuse them and the court has to be able to authorize any absence of parental consent after a condition on the state of parental consent requirement how realistic all this is of course is another question Southland notification is the one thing that we knew we've known for a long time until at least in decision I'll get to in a second Southland notification requirement that a pregnant woman notifies South that is an undue burden one thing that that's significant here and that contributes to the lack of a coherent view this is where it is said you can provide you can require that the court when we get an abortion with a doctor or anyone involved in the procedure give her information about an abortion now you could imagine a rule that said what a state has to do is simply provide information that will allow well informed decisions that's as you know standard requirements but the court went beyond that and said that a state can actually try to affect the decision a state can actually try to persuade a person not to get an abortion he doesn't have to play it down the middle you could try to talk the person out of getting an abortion and provide information with that and get to the mind now the reason I mean I you know whether that's right or wrong is another question but it does make it difficult to understand exactly what what an undue burden is you could say the state has to be mutual and anything that departs from mutuality that's an undue burden and that would give you some kind of standard once you say no no a state can actually be in the business of discouraging abortion it's very difficult to know how far can you go in this case at what point is discouragement too much discouragement and that's really identifying an inquiry I mean if you think abortion is a terrible long then of course you have no trouble with the court saying we can encourage it I wish they could prohibit it but if they can't prohibit it absolutely we could be able to change it and that would be on the heels I'm not saying something on the merits of that it's just something about where the legal regime kind of holds together and provides some kind of predictability and stability you'd want the next big step was this very recent case from Texas this actually came out of a a shift in tactics on the part of opponents of abortion the shift as I say up there is there's actually a shift in priorities rather than another shift in tactics there are really two central ways the opponents of abortion were trying to make their face in the court and in politics one was to emphasize the moral status of human life and to say abortion destroys the human life and that's why it should be prohibited the other was to focus on the welfare of women and to say abortions are bad for women they're bad because sometimes women get abused by the abortion providers and they're bad emotionally and mentally for women in physical health that would be argument the empirical support for the claims about women's health as far as I can tell is not that strong but the claims are made nonetheless and with the places in politics there were supreme court decisions that I haven't given you because it's not a terribly significant thing for the law or for or practically a certain right form of abortion so-called partial abortion and in that opinion Justice Kennedy was ordinarily favorable to abortion rights in fact the hellish that is a decision that appealed abortion rights Justice Kennedy had a line in which he said something like it would not be at all surprising if women allowed abortions later came to regret having abortions and one reason that this law came back and happened really accepting this idea that that the victims of abortion laws are not just the fetus that has a status of human life but the woman getting the abortion this case hellish that came out of I said a different priority to that side of the argument it involved laws draft regulations which is a term used by the opponent obviously to argue the regulation of abortion providers regulations like these if you're going to provide an abortion the facility in which you divide has to be nearly hospital standard as far as size of wound and access to medical care things of that sort really very burdensome standards that we were knowing not to need in a clinic that simply provided abortions and also that abortion providers have to have an abortion by hospital again the sort of idea being we're protecting the women women can have a complication and need to be rushed into emergency care about the remains of the group and we'll be able to do that more easily those are the arguments where these facilities are run down and dirty and sanitary they do lots of things that endanger women so really a shift to that argument as it comes to you're destroying people's hearts so those two regulations were unconstitutional the opinion is written in in a if I said the heller says it was written by Justice Kennedy I was wrong it was written by Justice Friar but Justice Kennedy we go before him he has consistently voted for abortion rights except in the case I mentioned this decision underburdened was very unclear what that meant actually helped a lot it provided a little bit of guidance and the guidance it provided was really the first this first thing the court said in deciding whether a regulation is an underburdened you've got to look not just as what extent is it that women are getting abortions but it's adjustable so if it keeps women getting abortions but it doesn't really serve any useful purpose well that's an underburdened and if the burden on women is not that great if the purpose of curbs is very limited this is what the court concluded about these two things then it's an underburdened even though maybe it doesn't affect women to really get abortions that much it could still be undue we have the kids of these things they look they don't need to hear that much of something undue the court said no we're going to look at the other side already but they're doing good so that was significant and provided a degree of guidance because you could just look at well they lose things provide much benefit at all if they don't they're probably unconstitutional and ending up there but the the sort of the way that the court approached it was you really got to dig into the facts how much of a different doesn't make if you have admitting to this how much of a different doesn't make if you have the characteristics of the ambulatory care how much of a burden does it impose to you how many abortions clinics were there in Texas and where were they and could women get to women they'd be able to get to the clinics that they may know that there was an issue about well women might not be able to get an abortion in El Paso but they can be right over the line into Mexico to be getting an abortion and of course it's got to you stay the responsibility for women in your state you can't just say you can go to somebody's state and get it so there was a lot of that very fact which is what leaves us unclear about what what kind of regulations in the future might be might be on health one thing the court did not do that some advocates on the side of the extent of the abortion rights urging them to do they didn't say the people attacking the Texas legislation said look I mean let's cut to the chase what's going on here is they don't want women to get an abortion they're not concerned about women in health they just want to throw up obstacles in the way of women getting an abortion and as long as they're trying that's what they're trying to do we shouldn't even get into the question of are these measures justified the way until we discuss the burdens we shouldn't even get into that cost benefit they can't be acting with the objective of presenting women getting an abortion unless they're going to do it openly if they're going to say no we're trying to talk women out of getting an abortion open but if they say oh no we're just protecting health but they're really trying to prevent women getting an abortion so the court should say nothing doing the court did not do this the court did not do this of course generally we love them to impede the notice of legislators and justify what I mean to this today but that again would have given some structure to the law in this area the court did not survive that okay so here are the kinds of things that remain up to grabs more or less a longer waiting period restrictions by the time the legislation can be had restrictions on medical as opposed to surgical abortions increasingly important as medical abortions to come and increase in understanding the increasingly large percentage of abortions that are provided restrictions on insurance coverage as more and more insurance coverage involves faith as a result of the Affordable Care Act subsidies provided by the federal government or by faith efforts to say well this is like the Hyde Amendment I mean you know we understand we can't forbid them but by golly we're not going to spend our back dollars in support of them as more and more government funds are spent in insurance markets there's sort of efforts to insist that insurance policy government policy is not something important all of those are some of those are in litigation I don't even want to I mean things are so uncertain now in the court I don't even want to submit which of those will survive selection come out the other way without the confidence to get things done but it didn't survive that so that's where things stand legally the result of this as far as well you know can you get an abortion in the United States is a complicated story the answer to that you know all these years 44 years after Roe against Wade you really thought well the answer is yes there's not just a right to an abortion which we do but in practice here is the here is the story in urban areas abortions are relatively easy to get in rural areas they are not there's no abortion provider in the county for 39% of women in the South American age in some of these big states there's only one abortion provider there's sort of the physical barriers of having to travel long distance the state imposes waiting periods that makes it makes it even more difficult to get there's a lot of social barriers my you know I might use about these issues of course the one place where I think well I think there's I want to say with some confidence I think the law has failed is the following I can see the court saying abortions are controversial people are very strong law we're going to stay out of this we want to put it to process to settle it I'm best on my views I can understand that what I don't understand is the court allowing society to reconcile its ambivalence society-wide ambivalence not that individuals ambivalence but we as a society are ambivalent is the court allowing us to reconcile our collective ambivalence by essentially setting up a system in which if you're well off or if you're living in the right place you'll be able to get an abortion but boy if you are a scared 19 year old in some rural community in North Dakota you know good luck being able to get away from your family get away from your job go to the clinic 200 miles away you've got to come back in 24 hours I'm not like you're going to be able to get a hotel in there and if you can't afford it you're not going to get medicine to pay for it that's not the way to resolve this by saying that you're influential and well to do in basic law I mean I'm exaggerating it's not 100% it's not black and white but if you already have advantages you'll be fine if you already don't have advantages your job is not going to be very forgiving if your family relations that you already have you have a lot that's not the way to resolve this whatever the way to resolve this that's not it and you can really make an argument that we've just gone down the wrong road but it could have been ok let's make a decision are abortions going to be freely available in the inner space or not let's make that decision whatever that decision is let's live with the consequences politicians can accept the blowbacks they'll get from influential middle class women affluent women who want abortions if they can accept that ok that's democracy I can see that already but I really think one thing the courts ought to be able to do is to say to the government you know we're not going to let you offload your your uncertainty onto the backs of people and I think the courts have allowed that and I think that's again whatever else one thinks about the difficulties one thinks about so that's my feel for you and I guess we have time for questions problem the way we are doing it by letting rich women get what they need and want and poor women suffer may I remind you that before that was exactly the situation in the United States where if you lived in New York or some other states did have access to abortion and if you had money you had access to abortion but you had no access to abortion just like now if you lived in Texas or God knows all of those places so I guess my point is that I don't have any confidence that having gone the other way it could be any different any place different than we are now we have a very polarizing issue and I don't see how we're going to get where we ended up yeah it might be a problem for me it's inevitable that people with resources people with influences get their way whatever you want to say and you know that if you really need abortion you have money to run and you have abortion so it could be I'm really concerned it's important that it works instead of kind of identifying there's a problem and saying we are going to rule we can't make sure the same rule applies to law they see this as a rule and maybe you know there's no way to say if you want to forbid abortions we are going to make sure that you forbid abortions even when influential people want to get from you there's no way to do that they just seem not to be having something that that they should worry about this is an area in which the reasonable political process is playing out the way it is is people who otherwise are in position or otherwise in a good position in their lives in society are protecting themselves and allowing the society's reservations about abortion to be visited on which is an area so there is this divide in terms of resources but I wonder if it's maybe not so surprising that this is the situation we have I guess I was wondering maybe attitudes towards abortion are different in urban and rural areas and maybe maybe that's the reason we have the situation we have now that seems to be true because you see these laws coming in some states and others but these areas are not only there are plenty of people in rural areas who do not like these laws and there are plenty of people in New York and New Jersey and California who are prolonged and don't let this happen in their jurisdictions either so to say I mean the only thing is if the Supreme Court is going to say there is a constitutional right for abortion then to allow a state to go out and say well okay I guess there is a constitutional right but we are going to do everything we can to make it next to impossible for someone to be in abortion we should not be doing that I mean come clean on it and if you are going to say the people who are on abortion they get the prohibitive abortion because you can't say that now maybe you can't bring yourself to say that so oh yeah so getting to that point of limiting abortions is is there any sort of basis for questioning the constitutional validity of the Hyde Amendment I mean in terms of just saying we are not going to finance abortion? absolutely when the Hyde Amendment was first challenged which is in the 70s came from death in the 70s I'm sorry mid 80s there was a fact that the first decision to hold the Hyde Amendment were just as follows on constitutional the way the way the issue plays out as a matter of constitutional law is one side says look just because you have a constitutional right doesn't mean the government has to give you the money that's one side of the argument the other side of the argument goes something like this do you mean to tell me that the government could say okay you have a right to an abortion but you better not use the public growth to go to the abortion plan you better find your own right away to the abortion plan hire a helicopter pay someone to go through their property don't use the public growth that and that's not supported abortion so that's the and it's a there's no clearance to that it's an independent constitutional law it's actually quite interesting what happened in that case as I said the time was 5-4 in a pretty conservative court there's not a court that you would have thought was especially liberal but that idea that the Hyde Amendment is okay that has really settled in and you don't really even see Democratic politicians which is kind of one of the things that bothers me about this issue when people on the sort of liberal side of the spectrum were engaging in their fantasy dreams about what the Supreme Court would look like if they would put them on the last election I mean one of the things that some people thought was okay we can get behind it when we declare that constitutional but even that wasn't seen as about it to that that's going to be number one, set number one let's do that I don't really have to accept the idea that you have a right to an abortion but people don't have to pay for it which I don't I don't get that I actually get the there's no right to an abortion idea which I don't agree with but I get it I don't get that thank you so much for that comprehensive talk my question is the liberalization of laws pre-73 were those they were all legislative were any of those court decisions well that's a good question they were a couple of court decisions but mostly the liberalization of laws so what were what were those court decisions based off of was it also a privacy argument or was it a different line of it was some version of the privacy argument the argument that it was not in the picture at all including your own next week was an argument that there was also been an abortion cost of discrimination in the community that was not a picture in data in the picture and that was not a central theme it was kind of a secondary thing the reason for that is that those the body of constitutional law of being discriminated against women saying discrimination was almost unconstitutional that actually developed right around the time so that was very underdeveloped against women I thought it convinced them that it became one of the same kind of the same gender standards of women's role but that was not in the picture today I do think that would be a central argument this is something that's not a justice policy it's something that has to do with women being discriminated against in fact Justice Blackman's opinion in an organized way contains some passages that are kind of now this is a decision to be made something like we made by the attending position in consultation with this patient he makes he makes a decision in case he's going to talk to her first he's going to have you know that was the the abortion issue and the whole women's health case is that the first instance where public health became a big part of this argument or was that introduced in earlier decisions consent requirements notification requirements waiting periods it was all it was a big decision to have human life in your hands we want you to think about it rather than we might put it or something to do with it you know I didn't want to say anything because he would take that block of things I didn't like that it's all it's not about the law having said that I think there are another there's another argument which is a situation there are more and more public administration that I think of working on should certainly be kind of way back. The only issue would be that there are other replacements, low rates, and so on and so forth. I used to say confidently, there are never replacements. I think I still think that because of what I said about how there's push-ups in those mobile options at the time. But what I do think will happen if there are more problems, how the demonstration is different, different, different, and holding up, and holding up, if it's a new system, I think that will happen. I don't know if it's, you know, I don't know if it's a live, if it's a live, if it's a live, any more comments, and if it's anything that you could do with it. First question is, don't you think it's going to be like contraception, where eventually down the line we'll get to the point where it's just accepted, and my second question is, why do you think there's been this shift from things happening in the legislative arena to things happening in the courts? You know, that's what they thought after a little bit later on, this is certainly just like how this happened. You know, it's possible that, and it's yes and no, but it's possible with medical abortions with an increasingly large part of the land safe, but because they can be done in a low visibility way and because it looks like a less recent thing, that they could see a similar conductor, you know, it's just an out-of-faking appeal, and that'll kind of dampen the opposition. I can't imagine that with that conductor taking place in which case, you know, I don't think that there's less opposition than the laws of the appeal, who are more likely just to get involved. People do know about it. I don't think it's a coup so far to know. I can't imagine that with that conductor. But we did, the division really seems to whatever reason, that only could be given some degree of religion, this division just seems to be higher in our society, to a greater degree than others might. As far as a lot of shift, I mean, people will say a lot together, I would say that the Supreme Court had, we better just say now, we're not something new from now, instead of something sweet, we've still see action in the legislative sector. Once the Supreme Court says, lots of any person that's working are unconstitutional, that forces opposition to the legislative party. No, that's not the case. We've got a conflict of constitutional violence. And if you don't know what it is, I think it's something about force. That's a force. We're talking in a series, in a few weeks, from the one years of doing abortions in the city. We do. We really are. Please join me in thanking the rest of the people. Thank you.