What’s next in the legal battle over abortion?

Read the Full Transcript

• Judy Woodruff:

  Today's decision is set to reshape where women may be able to access abortion services.

  John Yang has more now on how potential future legal battles could play out at the state level.

• John Yang:

  Judy, now that the right to an abortion has been overturned, an estimated 26 states are certain or likely to ban the procedure.

  That's according to the Guttmacher Institute, a research group that supports abortion rights.

  So, what's next in the legal battle over abortion?

  Mary Ziegler is a law professor at the University of California, Davis. Her most recent book is "Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment."

  Mary, thanks for being with us.

  We just showed that map from the Guttmacher Institute. What does this decision mean for a woman who may, let's say, in the coming days learn she's pregnant and decide she wants to terminate it?

  Mary Ziegler, University of California, Davis: At the moment, that person would in many of these states only have the option to travel out of state or to try to self-manage an abortion.

  So, essentially, what had been a constitutional right in all 50 states is now going to be protected in less than half.

• John Yang:

  What happens now to the legal battle over abortion? What's the next step? What's the next phase?

• Mary Ziegler:

  There are multiple phases, John.

  There are state constitutional battles in place — unfolding in places like Michigan that is already the site of a struggle about whether there's a state constitutional right to abortion. There will be knock-down political battles in states like Florida and North Carolina that have yet to commit to having outright bans on abortion.

  And, of course, there will be legal battles as well. Conservatives will probably come back to the U.S. Supreme Court and ask for protection for fetal rights. States may try to regulate out-of-state conduct, right, either preventing people from traveling to get abortions or preventing doctors in blue states from performing abortions on people from red states.

  Those fights, of course, raise very complicated legal questions that could well end back up at the Supreme Court.

• John Yang:

  You talked about abortion rights' opponents coming back to the Supreme Court to talk about fetal rights.

  Talk about that. What will they be pressing for?

• Mary Ziegler:

  The idea that — and this has really been the main constitutional premise of the anti-abortion movement from the inception, is that the word person in the 14th Amendment, which, of course, guarantees equality under the law and due process of the law, applies before, as well as after birth.

  So these advocates are going to be pressing the Supreme Court to recognize that claim. And, of course, if the Supreme Court were to do that, that would have the effect of banning abortion everywhere, not just, of course, in states that may choose to do so.

• John Yang:

  So, in other words, this would be a federal right, a constitutional right, but on the other side?

• Mary Ziegler:

  Exactly. Right.

  I mean, and I don't anticipate that happening soon. I mean, Brett Kavanaugh, who obviously would be a key vote on this, was trying, I think, to telegraph in his concurrence today essentially that the Constitution is neutral, the Supreme Court should be neutral. So I don't think there are five votes at the moment for the recognition of fetal personhood.

  But, of course, if you had asked me as little as two years ago, there weren't the votes to overturn Roe v. Wade. So this is a fast-moving topic where things can rapidly change.

• John Yang:

  You're a historian of the anti-abortion movement. What — sort of give us the historian's context or view of today.

• Mary Ziegler:

  Well, I think it's a fairly unprecedented moment.

  There have been times when the Supreme Court has reversed decisions that discuss constitutional rights, but nothing exactly like this really, I think, in modern history. It's also really remarkable, of course, that the Supreme Court has done this involving the most well-known Supreme Court decision, right?

  So the Supreme Court in this decision quite clearly says, this may damage the court's legitimacy, this may upset the American people, but that's not our problem, essentially.

  And that's a remarkable thing to see as well for a court that historically had been constrained by fears of public reaction. Clearly, this court is unconstrained. So this is a historic moment when it comes to the protections that are enjoyed by women and pregnant people and it's a historical moment in terms of the role of the Supreme Court in our democracy.

• John Yang:

  Mary Ziegler at the University of California, Davis, Law School, thank you very much.

• Mary Ziegler:

  Thanks, John.