Several white woman stand in a group holding round signs that say KEEP ABORTION LEGAL

“For Those on Both Sides”: An Interview with Mary Ziegler about Abortion and the Law in America

Recently, Florida State University law professor Mary Ziegler sat down with Nursing Clio to talk about her new book, Abortion and the Law in America: Roe v. Wade to the Present. The book illustrates how the question of “abortion rights” is only one piece of the puzzle – rather both antiabortion and pro-choice advocates have spent decades in a tug-of-war over policy, funding issues, and larger questions about public health. As Ziegler carefully demonstrates, these battles actually deepened political polarization on abortion and have shaped the debate in increasingly intractable ways. Her interview with Nursing Clio editor Lauren MacIvor Thompson has been lightly edited for clarity and length.

Lauren: Your book does such a wonderful job laying out the legal landscape of the complex history of abortion. What drove your narrative and organization of the book?

Mary: At the beginning, I tried to get as broad a range of sources as possible, which meant visiting harder-to-find archives and asking activists if they’d be willing to let me look at their material. When it comes to the history of reproductive health, some organizations and points of view are much better represented in university collections than others. I also made sure that my story included actors who played a major role in the history but who, for a variety of reasons, found themselves underrepresented.

(Courtesy Cambridge University Press)

In terms of organization, I found that the story of a shift in the terms of debate was pretty clear in the sources, especially on the anti-abortion side. I wanted to show how and why that movement overhauled its arguments, legal strategies, and political response—and how abortion-rights supporters responded to that tactical plan (and at times, tried to advance an agenda of their own). The challenge was to weave other major events into this narrative—Supreme Court decisions, presidential elections, changes to abortion care and the like. I also grappled with how much to discuss the courts. My book is very much a story of how actors beyond the Court drive our law and politics, but judicial decisions still had a potentially transformative effect. Capturing that nuance was hard.

Lauren: Recently Norma McCorvey – the plaintiff in Roe v. Wade – made a “deathbed confession,” in which she claimed that she essentially was a prop of the anti-abortion movement. What does this means for today’s abortion debate? How is McCorvey a symbol (then and now), and for what?

Mary: McCorvey’s most immediate significance has to do with arguments that abortion hurts women. She not only worked with Operation Rescue, the leading organization in the clinic-blockade movement, but also became the most visible symbol of legal arguments that abortion damaged women’s bodies, psyches, and souls. She was “patient zero” in the narrative, supposedly exploited by abortion doctors, DC lobbyists, and lawyers who had never cared about women in the first place. The revelation of her “deathbed confession” jeopardizes this story at a time when the Supreme Court is considering using it to erode abortion rights.

But I think McCorvey still is a symbol for abortion-rights supporters. For these organizations, Roe often remains the center of legal and political organizing—and this despite the criticism of the opinion and the fact that law has moved beyond it. She was heralded as a pioneer. And now abortion-rights supporters are painting her as a victim of anti-abortion manipulation. To me, she is more a symbol of the complicated roles women play in these debates—she was a savvy woman who knew who to shape her own story.

Lauren: One of your most striking points in the book is how anti-abortion activists deployed defunding arguments and strategies, which changed significantly over several decades. What changed in their arguments and what has the impact been?  

Mary: Defunding arguments started out as a way to hold the abortion rate down during the fight for an antiabortion constitutional amendment. It was, in other works, an afterthought, even though anti-abortion organizers recognized that it could affect many poor and nonwhite women. By the early 1980s, however, these activists saw the Hyde Amendment in a different light—as the blueprint for an incremental attack on Roe. And more recently, defunding arguments have reflected the unique role played by Planned Parenthood, both as a political force and as an abortion provider (especially given the challenges facing independent clinics in red states). Defunding arguments rely on ideas of choice, conscience, and complicity: taxpayers should have a choice not to be complicit in acts they find to be wrong. But what counts as complicity has changed—so abortion foes now seek to defund any activity undertaken by a group that supports abortion, not just abortion itself.

Lauren: Another point you make is that compromise initially seemed possible on the abortion debates before the 1980s. But by the 1980s, what happened politically that prevented these compromises from ever really being viable? Are we beyond compromise now given the polarization of politics in the U.S.?

Mary Zeigler is the Stearns Weaver Miller Professor at the Florida State University College of Law.

Mary: On the basic issue of legality and rights, there was never much room for agreement, even in the 1960s. But there were some possible compromises on related issues, such as conscientious objections for health-care providers, discrimination against pregnant workers, birth-control access for low-income women, and discrimination against unwed mothers and children born out of wedlock. These issues divided both movements to a degree (for example, many abortion foes viewed common contraceptives as abortifacients and saw out-of-wedlock pregnancy as a sin), but there was room for common ground. As abortion became arguably the nation’s most important wedge issue, political party realignment made that common ground hard to find. So did the rise of the Religious Right. Abortion foes had little choice but to align with conservatives who opposed any expansion to the social safety net—and who objected to additional protections against sex discrimination. And abortion-rights supporters increasingly influenced the Democratic Party and marginalized those who disagreed. For those on both sides, any sign of compromise could strike wavering politicians as a sign of weakness.

It’s hard for me to imagine that there will be real compromise on abortion itself, at least in the short term. Profound division on the subject predated Roe and has lasted ever since. With that said, I think the long-term future is extremely hard to anticipate. If the Court overturns Roe, what will that mean for political-party politics? For state legislatures? Will there be a backlash, and what kind? Will abortion care change—will more pregnant people manage their own abortions? I don’t know the answers to these questions. We live in interesting times!

Lauren: You write, “We have fundamentally overestimated our ability to anticipate what is coming next in the abortion conflict” (p. 210). But what do you think is coming next? June Medical Services v. Russo was just decided in favor of preserving abortion rights – what might this decision change going forward?

Mary: Roberts sided with his more liberal colleagues, but June Medical signals trouble to come for supporters of abortion rights. Roberts is famous for being an institutionalist, someone who cares deeply about the Supreme Court’s legacy. And so partly for that reason, he said that stare decisis, respect for the Court’s past precedents, compelled him to strike down a Louisiana law functionally identical to one invalidated four years ago. But Roberts entirely rewrote precedent in June Medical. He made the relevant rule in abortion cases, the undue burden test, much less protective of abortion rights. In the future, we will see even more restrictions coming to the Court, especially those that claim to give legislators the right to regulate when a scientific question is uncertain. Roberts also made a point of saying that no one had officially asked him to overturn Roe or its progeny. He might be game if someone makes that request. The future of abortion rights remains pretty uncertain if Roberts remains the swing justice.

Lauren: Can you talk a little bit about the impact of Obergefell v. Hodges, which legalized same-sex marriage in the US, on the abortion debates?

Mary: Obergefell energized conservatives interested in using religious freedom as an overarching framework for a project of social change, one that would encompass abortion and LGBTQ+ issues. Some readers might be familiar with the Manhattan Declaration: A Call of Christian Conscience, a statement of principles designed to unite conservative Christians, which might be the most visible manifestation of this project. Efforts of this kind had been underway for some time (there may be another book coming on that!), but Obergefell gave this campaign a boost, legitimizing (for some) arguments about the marginalization of Christian conservatives. In the abortion debate, Obergefell had the effect of making single-issue anti-abortion groups far more comfortable speaking out on issues like birth control and LGBTQ+ rights. Birth control, in particular, had been a political third rail. Reframing objections to abortion control as a demand for religious liberty made a great deal of sense for leading anti-abortion groups.

Lauren: Given the spate of abortion restrictions passed in 2019 in places like Alabama, Mississippi, and Georgia, is it fair to say that Roe “doesn’t matter”? Has the decision in June Medical changed the future of these kinds of laws?

Mary: Let’s assume the Supreme Court never recognizes a right to life (which would ban abortion everywhere). We would expect to have a patchwork of state laws, with sharp differences between red, blue, and purple states. You can certainly see that such a patchwork already exists, and the differences are getting starker. But Roe absolutely still matters. All of the laws you mentioned have been blocked by courts. In a post-Roe world, those laws would be enforced [and] nothing would be off the table—including the possible punishment of patients and the criminalization of some forms of birth control.

As for June Medical, it’s hard to say what the future holds. I would be surprised if Roberts wanted to move as quickly to unravel abortion rights as red state lawmakers expect him to. But Roberts’ concurrence makes it hard to predict whether the Supreme Court will eventually uphold one of these laws. State lawmakers will certainly continue trying. We can bet on that.

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