Podcast: The Future of Abortion Laws at the Supreme Court

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the National Constitution Center and welcome to We the People a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. And today we focus on the future of reproductive rights at the Supreme Court and we'll consider key cases that have come before the court recently and preview other cases likely to reach the court soon. And joining us to dive into the constitutional and legal issues surrounding this most contested of all constitutional questions are two of America's leading voices working on these issues. Catherine Glenn Foster is president and CEO of Americans United for Life. She's litigated many constitutional and maternal health cases and testified on issues before Congress and other bodies. She previously worked as litigation counsel at Alliance Defending Freedom. Catherine, thank you so much for joining.

Catherine Glenn Foster: [00:01:07] Pleasure to be here. Thank you.

Rosen: [00:01:09] And Kelli Garcia is Director of Reproductive Justice Initiatives and Senior Counsel at the National Women's Law Center. Before that, Dr. Garcia was a law fellow at the O'Neill Institute for National and Global Health Law, and she has a Ph.D. in social psychology from UCLA. Kelli, it's wonderful to have you with us.

Kelli Garcia: [00:01:26] Great, thank you so much.

Rosen: [00:01:28] Let us begin with June Medical Services versus Gee, which the Supreme Court decided on February 7th. It was an application for a stay of the Louisiana law. It was denied by the court by a five to four vote with Chief Justice john Roberts joining the liberal justices. Justices Thomas, Alito and Gorsuch and Kavanaugh would have denied the application and Justice Kavanaugh wrote a separate dissent from the grant of the application for stay. Catherine, let's begin with you. What was the Louisiana law at issue? And why did the Supreme Court refuse the application for a stay and what did the dissenters say about it?

Foster: [00:02:12] Right the Louisiana admitting privileges case where we saw the temporary injunction put in place by the Supreme Court required admitting privileges for doctors who would perform abortions within 30 miles of an abortion facility. So this case really turned on how many doctors performing abortions could get privileges. And it was tried three years ago, at least at least two abortionists remain even after this law. This law was came into effect and two different locations. So this would not be an undue burden. Now when it comes to the temporary injunction that the Supreme Court did put in place, it's not clear yet why the Supreme Court said that or why the Chief Justice voted with the liberals to put the stake into place?

It could simply recognize that Hellerstedt controls on an emergency petition and the merits might be a different result at the merits stage. The Chief Justice did dissent in Hellerstedt, which of course was the Supreme Court's most recent pronouncement on abortion on the merits. It could also result in revisiting Hellerstedt's finding that privileges provide little medical benefit. But we do what we do expect to see if this new court will believe that the Texas Hellerstedt case was a bright line rule against requiring that abortionist have basic admitting privileges like virtually every other kind of outpatient medical provider. And we don't believe it will. The Hellerstedt case was as we might see on on Twitter, to coin a phrase, a hot mess, with a balancing test that would allow any of the hundreds of federal judges to strike down an abortion law, if he or she thought it was only marginally beneficial for women's health. And as a post-abortive woman myself and someone who, who did see harm come from that from that choice, I would I would say that that it's very important for me to see that such a law would be in place.

Rosen: [00:04:14] Thank you so much for that, and for introducing some really important cases. You put on the table Whole Woman's Health versus Hellerstedt. As you said, that was a 2016 case where the US Supreme Court, in an opinion by Justice Breyer, struck down a Texas law which had an admitting-privileges requirement requiring physicians performing or inducing an abortion to have admitting privileges at a hospital located not further than 30 miles from the location at which that abortion was performed. And the Supreme Court, citing what you called correctly the undue burden standard of the Casey case, that was the 1992 opinion upholding the core of Roe v. Wade, said that this admitting-privileges requirement would have put an undue burden on abortions because it would have severely reduced access to abortion providers within Texas. And so thanks for setting up those issues. So, well, Kelli tell us how you view the Court's decision in the Louisiana case. Why did Chief Justice join the liberals in suggesting that the Louisiana law like the Texas law violated the Hellerstedt decision and what did Justice Kavanaugh have to say on that question?

Garcia: [00:05:26] Well, thank you for that question. I think it's really important to know that what's at stake here is not just abortion access which is kind a critical and key and important but what's also at stake here is the rule of law. As it's already been discussed, the Supreme Court recently upheld in Hellerstedt that laws almost identical to the one at issue in the Louisiana case were unconstitutional and the district court in originally holding the law was unconstitutional and striking it down was correct in following that precedent. The Fifth Circuit, by not following by not following precedent, was really striking a blow to what I said, to the rule of law, and what we need from the court now and what the Supreme Court needs to do is make a clear statement that that, we are not going to overturn three-year-old recent precedent and to be clear that the Louisiana law was almost identical to the law in Texas. The Louisiana law was modeled, in fact, after the law in Texas and it had, I want to say, a thousand medically unnecessary restrictions that were placed specifically on abortion providers.

And since the law was passed abortion clinics in Louisiana went from 11 to 3. So the impact and the effect on women was real, and serious, and strong, and that when we looked at Hellerstedt, when we looked at the Whole Woman's Health case, the important piece there was that you needed to weigh and look at the harm that was being caused to women in relation to the benefits or any the perceived or theoretical benefits of the laws that were being passe. And there was no reason to make a distinction between the Louisiana law and the law that was at stake in Texas. And what Kavanaugh's dissent would do was say oh, what he wanted to say was that no, we're going to wait and and and continue to see what the harm was to women, that we're not going to take into account and listen to and pay attention to what we know has already happened and what we know the stakes are for women, and instead placed the burden and harm on women and during the time women would not be able to get access to abortion more clinics would be put under pressure and potentially close. And that is we need to, the courts need to continue to pay attention to that harm to women which was what was so clearly laid out in Whole Women's Health.

Rosen: [00:08:09] Catherine, tell us more about Justice Kavanaugh's dissenting opinion in the Louisiana case. He said that the court could have used more facts to see whether or not the admitting-privileges requirement would have imposed an undue burden and the Fifth Circuit in the case said that Louisiana women might in fact be in a different position than the Texas women because of the possibility that doctors could try harder to achieve admitting privileges. So describe this factual dispute, tell us what the Fifth Circuit said, and tell us, if you agree with Justice Kavanaugh that more fact-finding would have been helpful, what do you think it might have revealed?

Foster: [00:08:51] I would say that there's no threat to the rule of law when the Fifth Circuit simply applied a balancing test and held that the facts were different, just as Justice Kavanaugh said in his dissent. It's not a threat to the rule of law when a balancing test is a test is balanced and it comes out differently and that's all Justice Kavanaugh said. The differences here were numerous. They include geography, they include health benefits from the law, demonstrated health benefits from the law, the availability of privileges and many others. And so I think, when we look at his dissent, he was really cogent in his in how he probed that test and and and noted that in fact the facts were different and that in fact, there is no threat to the rule of law just because the balancing test came out differently in two different jurisdictions with two different sets of facts.

Rosen: [00:09:43] Kelli, what do you make of Justice Kavanaugh's dissent? Critics of it said that there were no salient differences between the Texas and Louisiana law. And Justice Kavanaugh's dissent comes on the heels of his important decision in the DC Circuit, where he sought more information about the effects of abortion restrictions on women who were immigrants and were seeking an abortion. So parse out what the connection between those two cases might be.

Garcia: [00:10:13] So in the Louisiana decision Kavanaugh really ignored the first part, the first prong of the Whole Woman's Health decision, and that's that you had to weigh, is there a benefit? There was no evidence of benefit in the laws that were passed. Again the law, the Louisiana law, was modeled after the Texas law, it was nearly nearly identical. It was result had already resulted in of clinics closing, they knew there was harm for women and once when once clinics close, they can't reopen. Once women are denied abortion, they can't get them later. Right? There's there's real harms and that wasn't and Kavanaugh ignored that and in the harms. And in the Jane Doe case that you reference, that was also same, that was the same the same thing was at issue in that Kavanaugh's decision ignored the harm that was being caused to this woman, to this young woman who was being denied access to an abortion. She went through, she jumped through the, she did all the things that she was supposed to, she was asked to do, all the unnecessary things that she was asked to do, and yet she was blocked from being able to access an abortion. And in Kavanaugh's decision, in saying that we need to get more facts and we can wait and maybe there could be maybe she could get a sponsor, that ignored the continued and ongoing harm that happens when someone is forced to remain pregnant when they don't want to be.

Rosen: [00:11:49] Catherine, we're talking about Justice Kavanaugh's decision in Garza against Hogan. He was then on the DC Circuit. If you could tell us more about the facts of that case, the law that blocked immigrants from obtaining an abortion in Texas, and why Justice Kavanaugh disagreed with his colleagues about whether or not there was a permissible interest in favoring fetal life.

Foster: [00:12:13] Yes, this Garza case, it first really bubbled to the front to the surface in October 2017. The ACLU filed suit against the Trump Administration on behalf of Jane Doe who was represented at the time by her guardian named Rochelle Garza. Doe is an unaccompanied pregnant minor from Central America,  undocumented, and she was seeking an abortion. The government said that it had no obligation to facilitate that abortion and stressed that Jane Doe had options that the government was trying to facilitate, returning to her native country or being released to a sponsor. But this really is a different issue. This issue is about whether federal funds, the Garza issue is about whether federal funds and facilities must be used to give access to abortion and the Hyde Amendment says no. It had little to do then with the impact on a patient just as Kavanaugh, then Judge Kavanaugh, was simply seeking to apply the law and searching for a result that would balance the need to avoid paying federal funds or expending federal funds and the needs of the immigrant woman.

Rosen: [00:13:24] Kelli, why do you think that Chief Justice John Roberts joined the liberal justices in the Louisiana case, and what might that say about his ultimate vote in the case if the court eventually hears it, as many expect that it will? Justice Roberts was, Chief Justice Roberts was in dissent in the Hellerstedt case; has he changed his mind or is he joining the liberals for another reason?

Garcia: [00:13:47] You know, we can't really, I can't really speculate on what was in Roberts' mind, but I will I will note again that part of part of what we are seeing in the Hellerstedt case is really, and part of what we're seeing and in the Louisiana case, is the need to follow precedent. And what we have heard from Roberts, and what we have seen from Roberts, is a real respect for the rule of law and a respect for for the courts and respect for, respect for precedent. And I think what this signals is the recognition from Roberts that the Louisiana, the Louisiana law was not distinguishable from the Texas law that was struck down in in Whole Woman's Health and, and that so what ... What the signal is that is that the Louisiana law was not distinguishable from, from the text of the, from the Texas law, and I think that is that ... Gives us hope going forward into how, and how decisions, how we're going with the decisions that we are going to see, and that there should continue to be a respect for precedent. And the reality is time and again, the Supreme Court has upheld the right to abortion and the right to abortion access. And so, we, Roberts Roberts' decision, Roberts joining that decision is hopefully a signal that the Supreme Court will continue to respect and uphold the precedent that's so important.

Rosen: [00:15:25] Catherine, if the Supreme Court hears the Louisiana case next year, how might it rule? Chief justice Roberts does care about precedent, and some have speculated that he might not vote to overturn Roe cleanly, at least not in this first case. If the court were to uphold the Louisiana law, how might a narrow opinion be crafted to do that without formally overturning Hellerstedt?

Foster: [00:15:55] You know, I think that there's no way to know about the Chief Justice, but the Supreme Court has a number of paths forward. The Supreme Court could simply say that Louisiana was different in many ways ways, ways  like the geography, like the demonstrated health benefits of the law, a number of other different aspects of that balancing test that, that really were different. And so that would establish that the law requires an undue burden affecting a large fraction of women. Not just that balancing test that any judge could apply differently.

Rosen: [00:16:35] Kelli, if the court does take in the Louisiana case a narrow approach and does not formally overturn Roe but narrows it so that it upholds the Louisiana law by distinguishing it from Texas on its face, what does that say about the future of laws affecting reproductive choice? There are several of them that are bubbling up in the states as well as in Congress. And I'll just start with the Indiana law, which involves the question of whether a state can require health care facilities to, whether a state can prohibit abortions motivated solely by the race, sex, or disability of the fetus. And that was a case where the Seventh Circuit said that this non-discrimination provision violated well-established Supreme Court precedent that women can terminate pregnancy before fetal viability. That, dear We the People listeners, is the central line that the Casey case drew, saying that abortions before fetal viability were presumably protected but those after could be regulated, as long as they didn't impose an undue burden on the rights of the women. So imagine this kind of narrow, fact-based decision possibly upholding the Louisiana law. What would that say about this Indiana law, and what the Supreme Court might do about that?

Garcia: [00:17:55] I want to take just a step back. We know, as you've said in this question, that you can restrict abortion access without overturning Roe v. Wade. And that, and a decision upholding the Louisiana law could make it so that we have a right in theory, but not necessarily a right in practice, because if you can't exercise your rights because you can't access abortion, and, then it's not a right that it's not, it's not, it's not a full right. When, so when we look at kind of what, what is coming up it is, the courts could continue to do narrow, do decisions that don't fully overturn Roe v. Wade, but that, but that do continue to restrict and allow restrictions on abortion access, which will have real impacts and effects, effects on women and effects on women's ability to access, to access, to access abortion. That being said states are also working hard to ensure that there's, there's protections for abortion and that, and that the people in their states will be able to access abortion. This also is very problematic and troubling, because where you live shouldn't make the difference as to whether or not you are able to, to access abortion, but it is a real, the reality is the balance of the court has changed. And it wouldn't, it's not going to be accurate for me to say that hasn't happened, that we don't have concerns that the right to abortion will continue to be narrowed in a way that makes it impossible for people to actually access abortion without actually overturning Roe v. Wade.

Rosen: [00:19:43] Catherine help us understand how you see the future of these state challenges. Americans United has argued that Roe is wrong and should be overturned. But if the Supreme Court instead narrows Roe without overturning it, what is the future of state laws like the Indiana law which prohibits abortions motivated solely by race, sex, or disability of the fetus. Or, to take another state law, the Mississippi law which bans abortion after 15 weeks and mandates a 24-hour waiting period. Could the court uphold those laws without formally overturning Roe?

Foster: [00:20:16] Sure. Well, first of all, touching back on Roe. Roe was a political inside job by nine men who didn't understand abortion, let alone women's health, and had never seen a baby's beating heart on ultrasound beginning at six weeks, as documented by AUL senior counsel Clark Forsythe in his book Abuse of Discretion. It struck the abortion laws off the books in 49 states and was so extreme that the Supreme Court spent the next 10 years seriously backpedaling on the broad, unlimited right to abortion it had created, ruling that states could limit abortion to licensed doctors, that states could require abortionists to get full informed consent, that states could decline to use taxpayer funds for non-necessary abortions. And so we saw that kind of, of backpedaling there. And in part that was due to the opinion, to the very publicly stated opinion of a number of legal scholars on both the left and the right, including those who support abortion rights, who have said for example that Roe went, went too far too fast, that Roe was, was not tied to constitutional precedent, as former Justice Sandra Day O'Connor said, calling the the Supreme Court the National Abortion Control Board.

Moving forward to the present day, it seems that abortion advocates want some kind of balancing test to allow judges to strike down any law they feel doesn't provide sufficient benefits, but now complain that it is it doesn't strike down every admitting privileges law, every life-affirming law that, that state lawmakers, responding to their constituents and to the increasingly pro-life, life-affirming perspective of the American people, advocate for and are able to pass. And so looking specifically at for example, the the PRENDA case out of Indiana and the current petition to the Supreme Court, which forbids the practice of aborting a child for personal preferences, such as wanting a boy instead of a girl or perceived challenges faced by the baby, when we all have challenges, even eye color. And we see that abortion advocates such as the ACLU, Planned Parenthood, they won't even condemn the practice of sex selection abortion, which has caused serious male-female imbalances in Nations like India and China, and it's coming to the U.S. So, so we see that that there are serious concerns here and and I do believe that the Supreme Court could roll back Roe without without engaging in a wholesale overturn. Even though a number of legal scholars on both the left and the right have advocated for that very thing.

Rosen: [00:22:44] Kelli, we're focusing on the constitutional, not the policy question, and Catherine has argued that she believes Roe was wrong as a constitutional matter. Tell our listeners why you think that Roe was correct as a constitutional matter, as well as the Casey decision. And do you believe that Roe and Casey would require the court to strike down the Indiana and Mississippi laws restricting abortion?

Garcia: [00:23:10] So I yes, I do believe that the, that Roe and Casey and Whole Woman's Health would require that the Supreme Court struck down the, strike down those laws. And a ban on abortion, a ban is a ban.  And so bads like, like the one in Indiana, it's a ban, it sounds, telling women, they can't have abortion. And, and that is clearly unconstitutional under both, both Roe and Casey because those, those, those are bans, and the reason… I will admit that it is striking to be asked that question as to why Roe and Casey were correctly decided, because they are so fundamental to to our rights. And so om asking that question you're kind of asking why should women have rights. And that that can feel shocking and challenging to answer, but the reality is it's because the Roe and Casey recommend, recognize that women do have a fundamental right to privacy, we have a fundamental right to to make decisions about our bodies, and that anti-abortion lawmakers and lobbyists should not be in the position of being able to impose their personal beliefs on decisions that should really be about a woman's, a woman's ability to make decisions for herself and control her agency and control her dignity. And so when we talk about striking down Roe and overturning Roe, overturning Casey, what we are talking about is saying that women don't deserve the fundamental dignity and respect that should be afforded to them in the Constitution.

Rosen: [00:24:52] Catherine, let's turn to federal law. The Pain-Capable Unborn Child Protection Act, or Micah's Law, is pending before the Senate. It would make it a crime to perform an abortion if the fetus is 20 weeks or more and that tracks state laws, including a Missouri law which would prohibit abortions after 20 weeks. And you have testified on behalf of the Missouri version of the federal law in written testimony that I recommend to listeners. Tell us about the federal law, what are its chances of passing, and why do you believe that it is consistent with the Constitution?

Foster: [00:25:32] Well, if we can first perhaps go back to, to Casey and to Roe and to that, that abortion right, there is no right to abortion in the text of the Constitution. Women don't need abortion to succeed. And I think that's one of the lies that's been perpetrated and and spread throughout our culture today. There's this idea that women rely upon abortion in order to to arrange and plan for our education, our careers, our families, our futures, and that's simply untrue. We can succeed on our own merits and I would argue that a society that does not accept us on our terms for who we are and in the fullness of who we are is not the right society, is mis-ordered, and that is what needs to change.

I would also say more women are in the workforce today than ever, even as abortion is dropping, it's been dropping since 1992, and just as we've seen the the shift in public opinion polling and, and, and the Supreme Court. And a right to abortion disregards the fact that two human beings' lives are involved. When you look at it Casey, in fact, the Supreme Court relied on liberty, not on privacy, so privacy is is really off the table. When, when we talk about the federal Pain-Capable Protection Law, that is, that's a really important important piece of legislation for a number of, of different reasons. First of all, when we're talking about the the children, science has shown that around 18 weeks, medical fact, babies can feel pain on being torn limb from limb. This is something that was unknown to the court in Roe. You wouldn't treat your dog that way. You know, thinking back on Michael Vick and, and what we saw there, the very correct response we saw to him and that scandal, really.  Moreover, we've seen the exponentially greater risk to women and women's health after that 20 week mark when women are, I think it's 91 times, more likely. I'm sorry 30, 35 times, yes. More, it's 35 times more dangerous at 20 weeks than during the first trimester, and exponentially after that, every week the the risk of maternal mortality rises. This is a critical issue and it's something that impacts both, both mothers, both women and girls' health, and, and impacts of course the, the pain of the of the child.

Rosen: [00:28:13] Kelli, Catherine said that in Casey the Supreme Court relied on liberty, not privacy, and there was also an equality strain in Casey where the plurality opinion talked about restrictions on abortion as affecting women's ability to define their own life paths. And Justice Ginsburg has emphasized in her opinions in the partial-birth abortion cases that restrictions on abortion violate the Equal Protection Clause. Tell us about that argument, whether you agree with it, and then also your thoughts on Catherine's arguments about how women's health is increasingly threatened after 20 weeks and that might be relevant to the constitutional calculus.

Garcia: [00:28:55] Thanks for that question. So I I was actually struck by something Catherine said, which is that I thought where we have a point of agreement. In her answer, I mean, she said that it's, I think I'm quoting this correctly, a society that does not accept us in the fullness of who we are is not a society we want to have and I think that's right. I absolutely agree with that. And that is why when we talk about, talk about the issue of Liberty that was at that was talked about, that Justice Ginsburg talked about in Casey, as well as the right for women to be able to make their own decisions and control their own life paths, that is what is at stake. The ability of women to be accepted for who they are and plan their lives the way they want to plan their lives, to have…  Their dignity respected, their autonomy respected, their ability to make decisions for themselves about what they're going to do but their bodies and with their futures and with their lives, and that is what was at stake and that is what was being affirmed.

I think it is incorrect to narrow that down to a kind of success argument. It's not about, yes, we talk about abortion making it possible for women to make decisions about when they're going to have go go to school and to stay in school or make decisions about their careers, but that is part of what we are talking about when we're, when we say this is about your ability to control your own destiny. And what that means is your ability to decide whether, when, and if you want to become a parent, and that has that has consequences for our, in our world as to whether or not kind of the kind of success that you have. But regardless of those consequences and what that means for your career success or for your jobs or your education, there's still a fundamental need to be able to control your own destiny to choose whether or not you're going to become a parent. And that is what is at issue and that is what we're talking about and that is, when we talk about being able to make your own and define your own life plans. And so moving on to…

Actually, I want to say more on that. What's also important to hear is that people, people know this. Right? Recent polling that we did showed that 7 in 10 voters want, do not want Roe to be overturned. People, voters, do not… Recognize that when women have made the decision to have an abortion, they should not be shamed. They should not be restricted. This is where people are, so it's not so, people recognize the importance of being able to control your own life path.  

And that, so moving from there on to the, the question, this more specific question about about women's health. And so what what we're seeing in these laws and in these bans, these are, this is the, this is a ban that we're talking about, right? It's banning abortion. It would make it impossible for women to get abortions after, after certain points in time. And really again, this is about anti-abortion lawmakers and lobbyists trying to insert themselves into medical decision-making. And a woman's health is really what should be guiding important medical decision-making throughout her pregnancy. It should not be political interference. And so, these laws are trying to have, have legislators make important medical decisions, get in the way of a woman's decision-making, get in between a woman and her doctor. And I just don't think we really want to do that and really want to go in that direction. And the, this, this questions, the reality is abortion is an incredibly safe procedure. It is it is safer than many procedures, like common procedures that people have even, even as we get later in pregnancy. And so it's disingenuous and to say that the concern is about women's health when we're talking about these bans because the reality is, pregnancy, childbirth are in—can be very dangerous and they can be very dangerous to different groups of women. And what this would do, what these laws would do when we have these bans,  it would get in the way of women being able to make these decisions that are best for for their health and for their lives. And again, it's telling doctors, It's restricting doctors in what, what they can do and making it so they cannot give their patients the best medical care and so it's really it feels very disingenuous to be kind of trying to make health claims around that.

Rosen: [00:33:51] Catherine, any response to those claims about the, who should decide threats to women's health when it comes to the 20-week bans? And then also tell us about the Tennessee law that is pending, that would ban most abortions once a fetal heartbeat is detected about six weeks into pregnancy. Tennessee is among several states with bills like that pending and the goal is to trigger a legal challenge to Roe v. Wade. What's the status of the Tennessee and those other laws, and how are they likely to fare?

Foster: [00:34:25] Again, no one is about shame. And as I said, I'm post-abortive myself. When we look back at Casey, Casey was talking about the right to define for oneself the meaning of human life, but there are two human lives involved here. So do what you want with your own body. The issue is when someone else's body is involved as well. Looking at the autonomy issue, no one's an island and everyone, every choice that we make it, it's very relational. It's in relation to your spouse, your partner, your family, your friends, your community, the, all the different members of your own community that you've built for yourself. And one of the beautiful things that we've seen over the last decades is that there's more support now for women who bear children. That's another one of those presumptions of Roe that's gone by the wayside. We don't see that same shame now in unwed pregnancy. We have numerous resources. We're fighting back against pregnancy discrimination and we have laws against that and that's something that Americans United for Life has litigated for. We strongly support laws against pregnancy discrimination and allowing women to to fully experience life and, and the workforce in America.

I would also ask if health is really the factor, wouldn't, when a patient, when a woman decides or chooses abortion because, because maybe it's a girl, because of an eye color, etcetera. This isn't, this isn't always a health issue. It almost sounds, sounds somewhat eugenic and the presumption is also wrong that this is a decision between a woman and her doctor. Most women, myself being one of them, never see the doctor who's going to perform the abortion until they walk in the room to perform the abortion. Not during the consent process, not during any kind of consultation or anything like that. It's literally when the doctor walks in, you spend perhaps five minutes in the room with the doctor and then he's gone.

When it comes to to Tennessee, and that law in Tennessee, the heartbeat law, we don't think that the Supreme Court is going to take one of these cases at this time. There are so many different cases coming up through the court system. We've already talked about about Indiana, the, the PRENDA cases, the human fetal remains out of Indiana, admitting privileges, things like that, out of Louisiana and other places, other, other types of lawsuits. Ultrasound requirements, which, which I again personally feel is absolutely critical for women as a, as a part of full informed consent. That's something that was denied to me in my own personal experience. I asked to see the ultrasound, I was refused, and that would have made a critical difference in my informed consent and in my choice. So when it comes to heartbeat, we don't know that the Supreme Court is going to take one of these cases at this time, but they do show that there is a large number of states who do want to protect human life at the earliest stages.

Rosen: [00:37:13] Kelli, your thoughts on the Tennessee law, banning abortion once a fetal heartbeat is detected about six weeks into pregnancy? And Catherine mentioned a series of other laws that are coming up through the system. Out of all of those, which do you think is most likely to reach the Supreme Court after Louisiana?

Garcia: [00:37:35] So I just wanna kind of preface, or start this conversation with going back to again another, a great point of agreement on, that we have. So we. the National Women's Law Center, and my in the work that I do personally, really works to support end things like pregnancy discrimination and make it possible for women to make decisions for themselves. And so if you are pregnant and you want to stay in the workforce, we should have supports for that. Of course we support those things, because what we support and what this again kind of fundamentally is about is women's ability to make decisions for themselves and plan, plan their lives accordingly. And so. I've just, I welcome these points of places where we can, can, can agree that we want to support, we want to support women's ability to make these decisions. And part of supporting women's autonomy and ability to make these decisions is to support their ability to plan their pregnancies and the ability to end pregnancies if they don't want to be pregnant. And it's fundamental to your, to your dignity, to be able to decide to make this decision to yourself, and to be able to end a pregnancy, when that is what is the correct decision, the correct decision for you.

And then, thinking about the Tennessee law which would ban abortion at 6 weeks, which is before most women would even know that they're pregnant, it's, it's an abortion ban. I mean it would make it, make abortion inaccessible, which for all the reasons that we talked about, that I've talked about just now, it goes, that strikes at the heart of women's ability to make decisions for themselves in the heart of their dignity if you can't control your own, control your own body. And so we would hope and… that these, these bands would continue to be struck down. The Supreme Court, again, has reaffirmed this time and time again, that you can't just, you can't just ban, have a ban on abortion.

But also the reason Catherine was able to kind of there, there are, there are many, many laws, many abortion restrictions. Since 2011, states have passed 401 abortion restrictions. And these restrictions are really aimed at making it harder for women to be able to access abortion and about really getting in the way of women's decision and getting in the way of women's decision-making. And so, there's, there are many sets of laws that continue to be challenged. I don't think I can speculate on which ones are going to wind up making their way to the Supreme Court, but I do think it's that, these laws, the reason you know, they're being challenged is because they are going, they are going to the heart of women's, women's rights and women's ability to make these decisions for themselves. And they, and they are chipping away at women's access, access to abortion and making it harder for women to make these very fundamental decisions. And what's important, what's important to note and we haven't been able, haven't talked as much about today is the way in which these restrictions in when they go forward fall most on people who are already having a harder time accessing care. So if you are living in a rural state and you are have a hard time getting to a doctor, period, but then when you have an abortion restriction being able to have an, get, and get to abortion and abortion provider is that much harder, which is part of what we saw when we talked about what's happening in Louisiana and what was happening in Texas. When abortion clinics started closing and when people couldn't access, get an access to abortion, the problems of having to drive, the problems of having to take two, two extra, multiple days off, where multiple and medically unnecessary days off of work. And so, it's important to note and to keep in mind the ways in which these abortion restrictions continue to make it harder for women, to women, harder for women to access abortion and to access what is supposed to be a fundamental right.

Rosen: [00:42:05] Catherine, at the end of February the Trump Administration issued the final draft of a rule that would change Title X, which is the federal program that provides birth control and other reproductive health services to low-income Americans. Under the new rule, any organization that refers patients for abortions is ineligible for Title X funding to cover STD preventions, cancer screening, and contraception. It's already illegal to have federal funding for abortion in most cases. Tell us about the rule and whether or not you think it is consistent with the Constitution and the laws.

Foster: [00:42:36] Right, so the, the federal Family Planning rules essentially go back to, to a Reagan era regulation and and ensure that there will be physical and financial separation between, between the facility that's receiving the Title X funds and, and the facility that's performing abortions. Now the facility that is receiving the funding is still able to discuss abortion, is still able to, to talk about it, to counsel on it. But, but simply cannot refer to it because one of the things that we were seeing is that we would see facilities simply bring women in the door and refer them next door to the, to the facility next door there. And so we're really pleased that HHS has taken steps to stop Title X funds from subsidizing abortion, along with the Reagan Administration. We've always said that taxpayer funds shouldn't be used to pay for elective abortions, that both my health policy standpoint as well as a taxpayer right of conscience standpoint, there are much better things that we can do with with taxpayer dollars as was upheld as well in '91 in Rust v. Sullivan, very similar, very similar regulations there.

Rosen: [00:43:55] Kelli, your thoughts on the proposed changes to Title X that would make organizations that provide contraception, cancer screening, or STD prevention ineligible for Title X funding?

Garcia: [00:44:07] So just want to take a bit of step back and talk about Title X, give a little more background on Title X, so, you know Title X was established about 50 years ago, to, it's a family planning program and is really designed to make sure that everyone, that people across the country, were able to access quality family planning and sexual health care, and this includes affordable birth control and essential care. It's really focused on making on making, on equalizing access to care, sp that low-income women and families were able to get the family planning services that they need. This rule, this, the Trump administation's current rule, is really unlawful, coercive, and harmful to public health because it, in the ways in which it's going to restrict and make access to family planning harder. It disregards medical ethics and the federal guidelines on healthcare quality standards. And to give, the rule does many, many things that would, could essentially gut family planning services, and which would be particularly problematic and hard in, in areas, again kind of rural areas, places where people, where the Title X clinics might be the only ones that are available to get family planning services.

But that's what this rule does. It really would give the administration kind of largely unchecked authority to reshape the network of Title X providers, and regardless of what the providers abilities are, the history, the history or the capacity of these providers to actually deliver the kind of quality care that these communities really need. It's going to mandate kind of, very onerous, unnecessary, cost prohibitive physical separation requirements to, at the very minimum intimidate, if not punish or kind of kick out the existing Title X provider networks that have been following Title X law and provide these critical services. And it's, I just want to say the Title 10 clinics that you know, they, people often think, I think when we, there's if you think and you know about Title X and have heard about these people often kind of jump to think of only Planned Parenthood and Planned Parenthood's an important title X provider, but the Title X clinics are go, or go beyond that and are not just Planned Parenthood providers, but are key, critical, including the Parenthood providers, are these key critical providers of healthcare within communities that don't have necessarily have access to health care otherwise. And so when we gut the Title X, when we make it harder for these clinics to participate in Title X or potentially kick them out of the Title X clinics, what we're talking about is making it so that people aren't going to be able to access family, access family planning.

Rosen: [00:47:03] Well, it is time for closing arguments in this rich and illuminating debate and Catherine, the first one is to you. We've talked about a wide range of laws regarding abortion, ranging from physician access rules to fetal heartbeat rules to bans on abortion after 20 weeks. As you look at the next three years, do you believe that most of these state and federal restrictions will ultimately be upheld by the Supreme Court or not? And why should our listeners care about the constitutional battles to come?

Foster: [00:47:39] Thank you. Going back to Roe, Roe took one of the most divisive issues in America out of the hands of the people. In spite of that, the drumbeat against abortion has only grown louder and louder over the last forty-six years. Hundreds of thousands march in the freezing cold in January every year to protest the decision. States have passed hundreds of pro-life laws protecting women and children from abortion and increasingly ever since 2011. And as a new Marist poll this week notes, an increasing number of Americans describe themselves as being pro-life. A majority of Americans want to see major rollbacks on abortion to at least the end of the first trimester. A majority of Americans do not want their hard-earned taxpayer dollars going to pay for elective abortions, whether here in the United States or overseas. And a majority of Americans, as was shown by a number of polls recently, including Americans United for Life poll of more than a thousand American adults, Americans do not want to be associated with the radical pro-abortion agenda being pushed in places like New York and Virginia. We see even two-thirds of even those Americans who self-described themselves as being pro-choice saying that they oppose third trimester abortions, that they oppose abortions the day before a baby is due to be born, that they oppose this practice of debating whether to continue health care for a child who, who is already who's already been born.

So when we look at that, when we look at what happened even, in even this week, when we see that some of the pro-abortion politicians can't even bring themselves to vote against infanticide because it looks too much like abortion and might hinder abortion access, the very same reason why Pennsylvania didn't inspect Kermit Gosnell's abortion clinic, which led to the house of horrors that shook the nation really, but the left can't even vote to condemn the kind of criminal wrong that Kermit Gosnell went to jail for. I would also say that only a small fraction of the family planning providers actually perform abortions or are associated with a facility that performs abortions. Many facilities nationwide already separate their family planning and their abortion elements, for example throughout Texas and Iowa, and it's not as difficult as some make it seem.

We see that abortion providers and facilities simply want the right to refer patients to their abortion centers down the hall or next door. And Justice Alito was right in dissent in Hellerstedt: there's no evidence that abortion facilities were closing because of the privileges law. We've seen many different reasons nationwide why abortion facilities may close. At times it may be a business decision, consolidation, and in fact one owner in Texas complains that Planned Parenthood was driving them out of business economically. We see that in red states as well as blue states and, and the broad swath of American states.

Like Kelli, I welcome our commonality, you know our opposition to to shame, that society should accept us as we are, in opposition to pregnancy discrimination in all of its forms, dealing with the the differing health care experiences of different populations within our nation. And I'm thinking specifically here of of black woman's child birth experiences. And, and we have a long way to go when it comes to protecting our women and our children, but I would ask why abortion advocates oppose full informed consent, including information on social support services and financial support. We see that abortion facilities seem to assume that every woman who comes through their doors has already made her decision, when that's not so. About 80% of those women and girls who see ultrasounds choose life. That's something that was denied to me and I can speak personally. I had not made a concrete decision when I walked through those doors but um, along every step of that process, my choice, my autonomy were stripped away from me and and I wasn't afforded that that privilege and that choice that I thought I had walked in the door with.

So, so that's, that's concerning. I would ask why abortion advocates oppose common sense health and safety regulations that would protect women like me. I would ask why radical abortion proponents are advocating for the ability to remove health care from a child who had been intended for abortion but a child who was already been born, a child who can in all 50 states be placed in a loving home through adoption or even dropped off at a safe haven such as a healthcare facility or a fire station. There are so many options that allow a woman free choice once the child has been born and that's what we advocate for. We want everyone, every American to be welcomed in life and protected in law, and we advocate for women's health and that full spectrum of holistic genuine health care that welcomes both mother and child.

Rosen: [00:52:30] Kelli last word to you. We discussed a range of issues from physician access laws to fetal heartbeat laws. How do you expect these restrictions on reproductive choice to fare before the courts and the Supreme Court, and why should our listeners care about this constitutional debate?

Garcia: [00:52:49] So the Supreme  Court has, time and again upheld the fundamental right to, the fundamental right to abortion access and we continue to expect that the Supreme Court that will uphold and respect the autonomy and dignity of women as they be able to make this decision as to whether and when to be pregnant. The… I do want to kind of say that we, again, have kind of points of points of agreement. We have points of agreement in that we want to make sure that women have access to the full spectrum of, I think as Catherine said, genuine health care. And that's, that is what we, that is what we are advocating for and that's what we support. And the full spectrum of Health Care includes access to, access to abortion. And I will also say we, I was very fortunate of a year, year and a half ago, to have representatives from Whole Woman's Health in Texas to come and talk to us and show us what an abortion experience was like there. If I could get health care that was as caring and as thoughtful and as generous as the healthcare that was being provided by Whole Woman's Health, I would love, I would be so thrilled.

They, the thought and the time that goes in, that they put into making sure the people that come in to their clinic are supported, and that they are making the decision that is the just the right decision for them and that they have the support before and after was amazing and astonishing and is the kind of health care that we all deserve. And so when I when I'm advocating for abortion access, I am advocating for a world in which everyone has the ability to access, to have that kind of health care. And the reality is to have that kind of healthcare for for abortion, but to have the kind of healthcare across the board. What we stand for, the proposition that we stand for at the National Women's Law Center, the proposition that we have been advocating for is that everyone should be able to access the healthcare that they need free from discrimination, free from prejudice, without judgment, when they need it, and where they need it. And that is what this is about. And so that, when we're talking about abortion restrictions, when we are talking about these issues, it comes down to that basic statement. We should all be able to get the health care that we need without judgment and without political interference.

Rosen: [00:55:44] Thank you so much. Kelli Garcia and Catherine Glenn Foster for an illuminating, educational, and civil debate about our most contested constitutional issue. And thank you for educating We the People listeners about the future of reproductive choice at the Supreme Court. Kelli, Catherine, thank you so much for joining.

Garcia: [00:56:04] Thank you

Foster: [00:56:06] Pleasure to be here.

Rosen: [00:56:07] Today's show was engineered by Kevin Kilburn and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team. Homework of the week: dear We the People listeners, this was a contested topic, but I'm going to give you some tough homework. Read the Roe v. Wade decision. Read the majority opinion and read the dissent.

And if you find that your policy conclusions are diverging from your constitutional conclusions, write to me and tell me why. In other words if you are pro-choice, but you find Roe v. Wade constitutionally unconvincing and would have voted with the dissenters, tell me that, and by contrast if you are pro-life and find Roe v. Wade constitutionally convincing and would have voted with the majority, I'd love to know that too. ...

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