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Opinion | We're on the Precipice of a Post-Roe World

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ezra klein

I'm Ezra Klein, and this is "The Ezra Klein Show."

So I've struggled with how to open this show, because this is an episode today at the intersection of what is happening in my country and what is happening in my life, and I want to be honest about that. I don't, in general, try to have distance in my journalism. I don't think distance is great, but I particularly don't have distance today. I just don't.

A few weeks back, the Supreme Court let stand a Texas law creating a network of vigilante legal enforcement — I think it's the right way to put it — against anyone who participates in an abortion after the point at which fetal cardiac activity is detected, which is usually around six, seven weeks, often before people even know they're pregnant. It is a law that functionally makes Roe dead letter in Texas. It foretells the Supreme Court gutting Roe in another case it's going to hear next session.

At the same time all this is going on, my wife is nearly 34 weeks pregnant, and that's a particularly important, and in some ways, scary number for me. A few years ago, my first son, my son, was born in an emergency delivery at 34 weeks. In that pregnancy, my wife was in and out of the hospital with some conditions they could diagnose and some they couldn't. She endured a level of daily agony and physical damage, physical damage.

Pregnancy isn't easy, even when it goes well, but nobody should have to hurt as much as she did. It was a kind of pregnancy that, at another time, neither she nor my son would have survived. And then at 34 weeks, we went in for a checkup, and we ended the day with a child born at less than four pounds, who needed to be in the neonatal intensive care unit for the first three weeks.

If you listen to the show, you have a sense of how much I adore my son, how — to steal a line from Gilead — how I delight in the very fact of his existence. He lights the world for me, but it wasn't an easy beginning.

This year, we got pregnant again, and we hoped it would be easier. We hoped that it wouldn't all happen again, and some of it may not. But a lot of it has. Without going into too much medical detail — that's a story for my wife to tell, if she wants to — but I will say that seeing my partner just go through this is — and for a second time — it's really, really, really hard. She's in really severe discomfort all the time in a way that is not normal, that is not just pregnancy, and that, really, no one should have to endure.

And she is tough and determined in ways that I would never be if it were me, but it is still just brutal to watch. But we chose it. We chose this, knowing this might happen. And if we have a healthy child in a month or two, and she's healthy, I'll be so relieved. But there will still have been a tremendous cost. But still, it was one we chose.

But what does it mean to not choose it — to be told, because birth control failed or because you did something that maybe you didn't fully think through, that that's gone, that choice is gone for you? We talked about the miracle of life, the wonders of pregnancy, but there is a violence to pregnancy, a constant lurking and often realized threat. Pregnancy is dangerous. It kills. It scars. It traumatizes.

And I say all this not because I really want to have this conversation on my show — I've barely mentioned this until now — but because these are the questions these bills raise. This is what some states, at least, are saying they will force, actually force people to go through, that it will be the state's decision, not the person's — that once there is something you can call a heartbeat, the other heartbeat in that body ceases to have agency, that that body has been effectively taken into the state's control, conscripted no matter the cost to it. No matter the cost to that person.

That is a profound statement for the state to make. I'm not here to tell you the question of when a life with rights begins is an easy one. It's not. I'm not here to tell you that the exact way we decide which week you can have an abortion and which week you can't, that that's easily done. It's not. I struggle with that question, too.

But at the same time, when do the rights of the mother end? How did that become the easy question, the one so many politicians feel so comfortable answering?

My guest today is Leslie Reagan. She's a historian at the University of Illinois at Urbana-Champaign and author of the books, "Dangerous Pregnancies" and "When Abortion Was a Crime." We talk about the Texas bill in detail but also the back story of abortion regulations in this country, how we used to think about the moment at which a life with rights took hold, and then, of course, more recent questions about gender and abortion, about people who do not identify as women who become pregnant, the stakes for men in this conversation — men who often feel this is not their conversation — what it is we are saying about the state's power over people. So this is a bit of an intense episode but, I think, an important one. As always, my email is ezrakleinshow@nytimes.com.

Leslie Reagan, welcome to the show.

leslie reagan

Nice to be here.

ezra klein

So let's begin with S.B. 8, the Texas law that the Supreme Court recently let stand. Very simply, what is it?

leslie reagan

S.B. 8 is a strange, unusual law, like many others that have been passed in very restrictive states. It says that abortion after seven weeks, when a heartbeat, fetal heartbeat, could be detected, that it bans abortions around six to seven weeks. What's unusual about this is that rather than having state officials, prosecutors, and police investigate and prosecute violations of the law, it is written expressly so that no state officials are allowed to enforce the law.

Instead, it's private individuals who are supposed to do the enforcement, and they are invited, basically invited by the state, to investigate anyone who they think may have been involved in an abortion past this six-week stage of fetal development or anyone who has aided and abetted in such an abortion or who has intended to perform or assist in an abortion at that stage. So it privatizes enforcement and really invites the anti-abortion movement's volunteers — who we already know are extremely busy in harassing patients and providers — to take this on, find people and bring lawsuits. And then if they bring a lawsuit and they succeed in front of a judge, the person who's been named as breaking the law would have to pay damages of $10,000 minimum, plus attorney's fees.

On top of that, if they lose, they bring a lawsuit and, oops, they were wrong — actually, that doctor wasn't doing anything of the sort — there's no penalty for what we tend to call "frivolous suits," although this would not be frivolous, because it is intended to shut down abortion completely in Texas.

ezra klein

This law and its survival at the Supreme Court has made me feel like I must not understand something very fundamental about constitutional law, because Roe and Casey, the two fundamental constitutional cases around abortion, they have not, at this point, been overturned. Constitutionally, you can't outlaw, as I understand it — there is a right for a woman to be able to choose to get an abortion in the six weeks. So how can it be constitutional to sue someone for having provided an abortion in the sixth week?

I understand the state of Texas is not the enforcing agent, but you are suing against the criminalization of something that is supposed to be constitutionally protected. What crime are these suits alleging? How does this work?

leslie reagan

They are deliberately violating the constitutional protections for abortion, for women's and other people's rights to privacy and sexual freedom and procreation. There's many illegal laws that are passed all the time that violate the Constitution in terms of Roe and Casey. They're challenged, they're brought to court, and they're struck down, because they violate those constitutional protections.

And the idea behind this is there is nobody who can bring a suit challenging the law, because, usually, you have to have someone who's going to be hurt, and the person who's doing the job of law enforcement is the state of Texas, the attorney general. And so a case would be brought against the attorney general.

But in this case, there's no one to sue yet. And that was their thought. You can't really follow the usual rules, and so judges can't strike it down. It's a game. It's a trick. And the Supreme Court, to our shock but also, in some ways, not so surprising, given who's on the court, decided that they would not enjoin it until the case had been heard. No one's heard anything about why this law is unconstitutional, or why Texas believes they can have such a law. But the Supreme Court allowed it to go forward with the conservative majority.

ezra klein

I always want to make sure I'm not being too precious about the Supreme Court, because we give it a mythology that is fundamentally ridiculous. David Dayen the editor of the "American Prospect" was talking on "Left, Right and Center" on an episode about this I heard, and he made the point that if California passed a law where it said, we're going to say it's illegal to own guns, so any kind of gun. but the state of California will not be the one who enforces this law. It's going to be anybody who notices a gun or thinks you might have a gun, and then they can sue you, and if you do have a gun, you've got to give them $10,000.

My belief that the conservative Supreme Court would say, oh, that's very clever legal reasoning; we just can't do anything about it, is zero. Zero.

So I just want to note that I'm open to you pushing back on this, but this just seems, to me, to be the Supreme Court saying, we want this law to take effect, and we've decided to buy into some very bizarre reasoning in order to give ourselves a loophole to achieve the outcome we prefer. Now, I want to say, fairly, for conservatives listening to this, who feel the Supreme Court has done this on progressive things, I think that is true. I just think the Supreme Court is a political institution that does this all the time.

But it's just, on the one hand, you can get really up in your head about the legal trickery of this and, on the other hand, it just seems very simple to me. They found a way to get the outcome they wanted.

leslie reagan

I agree with you completely. And I do take it as a sign, which we were anticipating, that this court, as now constituted with three extremely conservative justices appointed by Trump, because, as he promised, they were against Roe v. Wade and anti-abortion, that this is a signal of their willingness to completely gut Roe v. Wade and the companion decision, Doe v. Bolton and, also, Casey.

But I don't know that they will actually say that that's what they're doing. I mean, I think that's one of the really important things to pay attention to is this may be allowed, and they may also, when they look at the Mississippi case, which is a case that bans abortion at 15 weeks, which is, again, pre-viability, which has been retained as constitutional in every case — that before viability, women have a right, and the state can't regulate otherwise, they may seem to preserve Roe v. Wade and yet allow it to be so thoroughly gutted that it doesn't exist.

And I've always thought that should be one of our big concerns, is that if people believe it still exists, they won't really recognize what a disaster it is for some women in the country. And Texas has certainly brought this to the forefront, I think, in people's minds, that it could happen.

ezra klein

To some degree, wasn't this already happening in Texas? There have been a number of laws in Texas. They have been mostly framed as an effort to protect women from dangerous abortions, and the way they have tried to do that is put functionally impossible regulations on clinics that provide abortions, just very strange, small things about hallways and everything else. And you're basically trying to regulate these clinics out of existence and use a fig leaf that we just want them to be safe.

In a world where those laws can exist, in a world where this law can exist, this was going to be a question I have for you. Does what the court officially does on Roe actually even matter anymore, because they are giving conservative states a pathway to say, this is how you make abortion functionally inaccessible, because you put anybody who would provide it under so much legal and regulatory risk that they cannot really provide it?

leslie reagan

Well, first, I agree that, in many ways, this was already happening in Texas and mostly the Southern and Plains states, that there are so many different restrictions. If people aren't familiar, there are things like waiting periods for 24 to 48 hours. Minors have to get — notify or get permission from parents, and if they don't do that, they have to talk to a judge. Imagine a 13-year-old or a 15, a 17, anyone, having to go to a judge and explain their life, their sexuality, their reproduction, and ask, is it OK with you if I go get an abortion? So pretty horrific.

So yes, this has already been extremely restricted. It is especially hard for poor women and women of color, and, of course, mothers or people who have spouses who object to what they're doing — they need to keep it a secret. On the question of, does it matter what the court does next?

I think it does matter, because it's already bad, and that needs to be changed, and some states have been passing new laws that expand reproductive rights for comprehensive reproductive health legislation, which is great, and writing Roe into state law. But this, if the court makes a decision like that, then it will immediately make abortion illegal in about half the states in the country. So that would be worse.

ezra klein

Something you mentioned a few minutes ago is that one way that the legal approach of this has been unusual is to pass a law that, at this point, the courts can say, well, nobody has standing to challenge it, because who are you going to sue? But at the same time, what's unusual about this law is who it gives standing to to sue in the first place.

So to just spin out a scenario here, you could have a woman in an abusive relationship, who has been beaten and raped by her husband, leaving her pregnant. She runs from him, and she gets an abortion, and if he finds out about it, he can sue under this law, or he could have his mom sue under this law or the person who works with him and is sympathetic to him or an activist in a full other state can sue under this law — virtually anybody can sue under this law and possibly win $10,000 in damages and more in legal fees and maybe interrupt the process entirely.

The who it gives standing to here, it's really unusual. It's managed to reverse the normal way this would go. It's given standing to everybody to sue, but then when the law got challenged here, somehow the courts said, well, there's nobody who has standing, yet, to sue the law's constitutionality — even though now everybody has the standing to sue any person who in any way abets an abortion.

leslie reagan

It is pretty incredible. I was thinking of, really, the anti-abortion movement, which is extremely well-organized and, you know, immediately started trying to take tips online. They've got attorneys ready to go, and they've spent years harassing people and collecting names and phone numbers and license plates in order to follow patients or providers at their homes.

But this also is designed for personal abuse beyond that political personal abuse in allowing, really, anyone who has a grievance against anybody, because anybody could be, perhaps, intending to be involved in an abortion. And there is no penalty if they're wrong.

And, of course, defending yourself against a charge, whether it's right or wrong, is expensive. They are allowed to file it anywhere in the state, so people are going to have to travel potentially, pay for lawyers, and their reputations can be damaged. And none of that will be paid for if the people who brought the case lose. So yeah, it is really vigilante justice that allows almost anyone — and it doesn't have to be someone who lives in Texas; it really can be anyone — to bring a lawsuit.

ezra klein

I've been thinking about how to talk about this in this show. So to not be indirect about it, my wife is in the third trimester of our second pregnancy. And I've talked to her about talking about this. This is with her consent, of course.

But she has very far out on the bell curve of dangerous, agonizing pregnancies, tremendous danger to her, the kind of thing that you wouldn't have survived in another medical age, a real danger to our children, and that she's just in a daily unusual level of agony that is really hard to watch, that is not something I've seen with my partner before. And it's really, really hard. It's really hard to see. And we chose this. We didn't know that the second — this was true in our first. We hoped it wouldn't be true in our second. It turned out to be.

And so I've kept thinking, as I've looked at this law, not about this as an abstraction, but about her, about us, and about the idea that if our birth control failed at some point in the future, that the state of Texas, at least, is saying that her pain, suffering and danger count for nothing, actually nothing. And it, in fact, counts for so little, so truly little, that anybody anywhere, anyone should have the right to drag her into court to defend her decision — if such a thing was made — to protect herself.

I mean, I love my son. I mean, I would give my life for him in a second. He's the most important life in the world to me. It's not about loving my children. But I also love my partner. I feel like you can talk about pregnancy and abortion, and people think about a normal situation. But a lot of pregnancies are really dangerous. And it just seems to me that what the state is saying about the citizenship and worth of someone who is pregnant is chilling here, that they just have functionally no worth. Like, the moment you get pregnant, you stop in any way being yourself.

I feel like when you really look at it, it's really annihilating to a person's sense of self.

leslie reagan

Yeah. Thank you for sharing the situation in your family and your partner. It's intimate, and it is frightening to think about this law or what they're really saying about people and about any pregnant woman, any pregnant person, is that they are completely irrelevant. And as you said, they're suffering their pain while carrying the pregnancy, in her case, during childbirth. It just doesn't matter. But I think you're really right. It is a brutal kind of law to think that we can force people to carry pregnancies to term and deliver, regardless of their own health, their bodies, their views, their needs. They really are nothing. And it is a sickening statement about how they think about people. And there's certainly plenty of evidence of people who they've seen on the line protesting in front of the clinic later come in and also ask for an abortion, because they need it in their own life.

So one is not caring about the danger and the pain that you were referring to, but also completely not understanding that if someone carries a pregnancy to term and delivers a healthy baby, it didn't just happen because the law said so. It happens because they decided to do it. And so that's the other side of what I find so upsetting about this kind of thing is the complete— it's erasure on both ways of what pregnancy really means.


ezra klein

So I want to zoom out into your broader history of abortion, and I'll start with the fundamental question, which is, simply, how old is abortion as a human practice?

leslie reagan

It's been around forever. Since there were human beings who had sex, abortion has existed. There's evidence of the different kinds of things people could use in antiquity to try to prevent pregnancies and to end them. And we certainly know throughout modern history that abortion has always been used.

And this was true in the U.S., too. It certainly existed and was practiced in colonial America. This is not something that didn't exist when the founding fathers wrote the Constitution, and, in fact, there were no criminal abortion laws when the founding fathers wrote the Constitution.

It was legal under common law brought over from England. What was against the law was abortion after quickening. Prior to that, which would be in maybe the first three, four months of pregnancy, there was no regulation of attempts to bring your menses back, as they would have referred to it in the 18th and 19th century, or to induce a miscarriage or what we call an early abortion.

ezra klein

Can you say what the word "menses" means?

leslie reagan


ezra klein

It does just mean menstruation.

leslie reagan

Yeah, because the thinking about the body is if it's in balance, then you're healthy and well, and if it's out of balance or if there's evidence of being out of balance, something's wrong, and you need to adjust and fix that. And so, of course, menstruation is a regular cycle, and if, suddenly, a woman doesn't have it, that's actually a sign of something's out of order in her body. And so you need to get it back and bring it back into its normal operations, normal order.

And so there were domestic guidebooks that were published over and over and over for decades that you could get that included recipes and how to bandage a wound and also included these kinds of herbs and teas for bringing the menses back. So it's very common knowledge.

ezra klein

And can you also define, because it's going to be important in a second, the quickening?

leslie reagan

Yeah, so quickening— it's not a term we hear much now, but what it meant was it was a very important moment in terms of morality and in terms of law. And quickening is the moment where a pregnant woman can feel movement inside of her, and then she knows, oh, there's life inside, and I'm carrying a pregnancy.

And at that moment of quickening, which might be in the fourth month, there's many examples of women trying various methods to get their menses back. And when they feel quickening, they, oh, I have a life I stop. And then they deliver a baby later on. To interfere after quickening was also against the law, and people could be prosecuted for that — and were, some of the time.

ezra klein

So just to put a fine point on this, going back in time, back in this colonial period, if you took abortifacients eight weeks after conception, that would be understood as bringing back the menses, that what had happened is your period was gone, and you had done something to bring it back. You had restored the body's flow.

A couple months later, when you're showing, and you're feeling a baby moving, it would be understood as an abortion; that would be after the quickening. But so you have this period that, in this regime, is controlled by the woman's sense of what is going on in her own body. It is about what she feels, not about what the state thinks has happened or an ultrasound. It is about — it is driven by her interoception of her pregnancy.

LESLIE REAGAN That's exactly it. The woman knows her own body, and when she feels and recognizes a life within, a pregnancy, that's when she knows that she's carrying a life, and she will give birth, and that she — if she had been attempting to bring her menses back, that she can no longer do that. So yeah, it's a very important moment, and it is within the woman's own sensations and what she recognizes. And there's no set time, really, for quickening.

And, of course, as we know, if people have been pregnant before, they may recognize things earlier than if they haven't been pregnant before. But even so, it is by her call of when quickening is.

You have a very interesting vignette in the book, where you quote a doctor who's one of the early anti-abortion crusaders. And he says — he kind of mocks this — and he says, that's just a sensation, and some women who never feel the sensation deliver a baby, and that baby is still alive.

And something I was thinking about reading that is the tendency to say something like, the quickening is just a sensation, but that there is something more objective about some of the other measures. Like, you could say fetal heartbeat is just a measurable sensation. You can say all kinds of — the ineffable question of when a fetus develops rights, develops a sentience, a humanity, that's a very hard question. And in this conversation, I am not pretending I know precisely the answer to it.

But it does seem to me we've moved from, in a very profound way, a regime based on the pregnant person's sense of their own body and what was happening inside of it to a regime where the medical profession, in concert with the political and legal professions, are defining something as scientifically true, when it is just the same kind of judgment call.

leslie reagan

I think that that's right. And the doctor you referred to is one of the major organizers to make abortion a crime in the United States — Dr. Horatio Storer, who was a specialist in gynecology and obstetrics at Harvard, a professor there.

Yeah, it is, again, the scoffing at women and their knowledge and their interests is also incredible and also, I think, matches exactly what we're seeing right now with the Texas law and the anti-abortion movement, is the complete disrespect for women and for their moral knowledge and views and, instead, replacing it with a male medical profession, male and female politicians, and technology, because that's what they're relying on now is technology.

ezra klein

Can you talk a bit about the role of technology? Because the ultrasounds we have, there are laws about certain kinds of ultrasounds. People now have to see in some states before they can get an abortion. Can you talk a bit about how technology has been used to change and redefine this conversation?

leslie reagan

I mean, I have to say first, of course, that the technology itself isn't doing this. It's how— as you said, how it's been used and how it's been interpreted. And initially, an amniocentesis, they were looking for problems, fetal defects that might result in disabilities. And so they were used, really, for that — to check if they were healthy.

And potentially, of course, what it meant was if you get an amniocentesis that gives you information that there's something that looks wrong genetically or if you see something in an ultrasound that doesn't look right, the purpose that they served was to allow people to abort a pregnancy in order to avoid having a child with whatever it was that they found. So some of those might be we can see that it will not survive, even before you deliver. But that was what the purpose of those were.

Now, what you are referring to is politicians taking a technology that is used to check on the status and health of a fetus, an embryo, or used to look into the health of the pregnant woman, both, for other information, taking that, and using it, really, in this punitive manner to force women to think the way they want them to think about pregnancy and abortion. The laws that have been passed is requiring doctors to provide an ultrasound, usually read a script about what it is that they're seeing, which are images based on sound waves, and the purpose is to say, this is a baby, and what you're doing is infanticide. That's the whole point.

And then there's ultrasounds that are external, and there's also the vaginal ultrasounds, which is forcing women to undergo a sexual assault, if it has no medical purpose other than a political purpose, to force them to do something they don't want to do. There are a couple of states that require these transvaginal ultrasounds.

ezra klein

One thing you'll hear, and you track this in this conversation, is that these laws, not the Texas one we're talking about, but a number of these others from the ones regulating how abortion clinics are built and maintained to the transvaginal ultrasounds, are motivated by concern not just for the fetus but for the mother's health and safety, including mental health.

But I want to put some numbers to this conversation. Women are about 14 times more likely to die during or after giving birth to a live baby than to die from complications of illegal abortion, and I should say, by the way, Texas has a really quite bad maternal health record. It's even worse for women of color.

And then there's this remarkable study, the Turnaway Study, which is able to look at women who wanted abortions and either got them or refused them and could follow them for years, and it found it's not just the physical health, that it's physical health, it's self-reported physical health, and then it's the mental health of women who are able to get abortions when they sought them. In all cases, that was significantly better than if they were refused the abortion they wanted.

So from the evidence we have, it seems that it's not just that pregnancy is dangerous, but not being able to get an abortion you think you need, that definitely seems to have negative effects on physical health and on mental health. And I didn't mention economics here, because I'm a bit uncomfortable with what is happening in that part of the conversation. But I mean, that's huge, too. There's a huge penalty economically for someone who's a child. There's just no doubt about that. It takes years and years to recover the job and income status.

So I don't want to load the deck on this question too much, but I would like to hear you talk a bit about the role, the constructs of women's mental and physical health play in this conversation, that this is about women's mental and physical health, but can you, I guess, talk a bit about the role those constructs play in this conversation?

leslie reagan

I'm glad you brought up that these laws are often passed — in the discussion about trying to re-criminalize abortion — is framed in this way of concern for women's health and safety. That's rather new, and I mean it's fascinating, because it grows out of the sense that, wow, feminists succeeded on this. Their bodies and health actually mattered?

And also, using the women's health, the feminist women's health movement, which took on the way physicians practiced, the way they wouldn't control childbirth, the way they didn't explain what they were doing, or they gave orders and expected them to be followed, all of these kinds of things. And the main thing the women's health movement focused on was illegal abortion. I mean, there was agreement across all kinds of groups that that was an enormous problem that had to change because of the way women were treated, but also because of the public health problem.

But the reality, of course — and there's also been lots of, sort of, disinformation that's been produced and pushed for decades by the anti-abortion movement that abortion will cause sterility. It will cause breast cancer. And it will also cause psychological damage that women cannot recover from.

Of course, as you just pointed out, the evidence is quite the opposite on all of those counts. Abortion is extremely safe in the U.S. Legal, safe abortions are extremely safe. Childbirth is dangerous. And it is phenomenally worse for women of color. So that's a major problem that really does need to be addressed, and Texas is spending their time on passing laws that will damage people.

As you said, we have the evidence that being forced to carry a pregnancy that somebody really doesn't want to or feels they're unable to damages their health and is physically dangerous.

And I agree with you on the issue about economics. And yet, we have to admit that a large proportion of the people who need abortions need them because of their income or because of the kinds of jobs they have or because they're in school. In the U.S., since we don't receive a universal benefit that we know we can live on financially and automatically have housing and food, and people — even though they're not supposed to be fired if they're pregnant or have children — we also know that this can happen, right? But it's very hard for people to continue with their education if they have a baby. We don't have child care, and for many people, they are mothers. They already have children, and they see that they cannot possibly survive on their income or the benefits that they receive.

So it is a driver in terms of having an abortion, and it's not fair. That said, I would also say even if all of the services and everything were available that I personally believe should be, we would still need abortions.

ezra klein

Yeah, and I want to clarify what I meant earlier when I pushed that a little bit out of the data I was using. The reason I pushed that to the side is that I think that there is a sincere argument being made by people who are against abortion when they talk, certainly, about the fetus. And to some degree, it is meant sincerely when they talk about the mother. I don't believe the economic argument is sincere.

On the one hand, I think it would be reasonable to say that if you believe abortion is murder, that the fact that it might be good for your income in a couple of years, I understand why you would wipe that to the side. But the flip of it is that if you believe abortion is murder, and you know, and you know, because we know that many, many, many abortions are driven by economic need, that the absolute first thing you would do is reduce that economic need, not criminalize abortion and drive women into underground abortions. And so the reason I don't really buy the argument is because I don't feel it's a real one.

Texas could have spent the last decade becoming the most natally friendly society in America. They could have made sure that anyone having a child had every support they could possibly want. If it is so profoundly important that it's worth the state telling you you must, then certainly, it's worth the state paying you. Certainly, it's worth the state supporting you. Certainly, it's worth the state making sure there isn't an economic penalty in your life.

But they don't, and, frankly, if you compare Texas to California, its supports for families are terrible, just ridiculously bad. And so I just don't buy it at all. And I think it gives away something in what's really happening in the conversation, because you could do a lot of things to reduce the number of abortions that are not about criminalizing, but the energy in the conversation is about criminalizing, not building a natal society where the last conversation you have is, OK, having tried in every possible way we could remove the need for anyone to ever need to have an abortion they didn't want to have on some level, now we need to talk about the legality of it. But that's not what happens in these states.


Let me ask you about something from the anti-abortion side of the argument, because I do think it's important to take this seriously, which is the other side of this argument is that abortion is murder, built around the idea in this respect — not most people who have complicated feelings later on in pregnancy, but when you're talking about something at seven weeks — built around the idea that life begins at, or extremely near, after conception.

You show that that has not been a highly popular argument for most of American history. That isn't how people saw it.

So can you talk a bit about the history of that? When did we get to the life at conception part of this having a strong polarity in the debate?

leslie reagan

Well, as you saw when we were talking about quickening, that assumption is that life begins at quickening, not at conception. It begins at the moment that the fetus is moving and kicking and showing it has life. And it is fascinating if you look at some religious history on this, that this is not how pregnancy and abortion has been thought of.

Even the Catholic Church has not always been against or organizing against abortion. Certainly, not all Catholics subscribe to the church's views. But it wasn't until 1869, around the same time that abortion was being criminalized in the United States, that the church condemned abortion.

And about 30 years later, it condemned therapeutic abortion, and therapeutic abortions were abortions performed legally by doctors to preserve the woman's life or her health. And it wasn't until the end of the 19th century that the church, I guess, noticed that and condemned it. So that's important for people to realize.

The Protestant church has also always accepted abortion when pregnancy threatened a woman's life, which is what the medical profession believed and was written into the nation's laws. Every law in the country that made abortion from conception on illegal had an exception that allowed doctors to perform abortions for medically indicated reasons. In Illinois, it was called for "bona fide" medical reasons. But that meant that doctors would be the ones who had the legal power to make that decision, to preserve the pregnant woman's life or health, and that it was medically and, thus, legally and morally justified.

When I do research on this, it's not that absolute that only doctors make these decisions, because doctors work with their patients and especially on the 19th and early 20th century, they're very sensitive to what their patients think and need. And they're not as distant as we might imagine.

The Jewish tradition also always recognized women's life as primary. The Mishna code of ancient Jewish law made that very clear and said that when childbirth threatened a woman's life, her life takes precedence over its life. So I mean, you see consistency here in that it's tabooed but had not been criminalized across the board until the 19th century. Societies and religious thinking about life and when it begins changes over time, and we really do see that it changes in political views and particularly in, I guess, the status of women.

And in the United States, when women were actively organizing and politically engaged and coming into the public — and mostly talking white middle class women — were not staying in their private sphere but were going into politics and fighting for things like abolition or temperance or fighting against prostitution — which means criticizing male behavior, male sexual behavior — that is when abortion became a political issue and became something that the states turned into a crime.

So it's — I see this as very much part of moments when the women's rights movement, what we now know as feminism, is strong and is visible, and there are changes in gender and changes in terms of the racial balance in the country and power. That's when abortion has often become an issue.

ezra klein

One thing you'll hear on the center right of this conversation, I'll call it, is the view that Roe and the Supreme Court's intervention in this took this out of the realm of politics, where, perhaps, a series of compromises could have been reached federally or in different states, such that there was a better balance of interests — Roe has been extraordinarily galvanizing for the right and for the Christian right, in particular — and that some of the difficulty of the issue and the radicalization on the issue that you're getting at there reflects the disruption of the political process, and that the healthy thing about overturning Roe would be that it would return this to politics, where different interests could be balanced against each other.

How do you think about that argument?

leslie reagan

I have a lot to say about that, but I do have to say that at the moment, that's a very convenient thing for the Republican Party that uses this to their advantage — to say, when, also, we know that the Republican Party has more power at the state and national level than it should if it were based on the popular vote.

And by that, I mean the way the electoral college works, two senators for every state regardless of population and the gerrymandering and, of course, now, the efforts by states that are dominated by the Republican Party at their level of the legislature and governor are busy trying to make it extremely difficult to vote, and it's very targeted towards taking away the voting rights of African Americans, Latinos, seniors, the people they think will vote Democratic.

So to say that that would be great to put it at the state level is a pretense about the way our voting works and the differences among the states. So that's one thing.

Of course, the long discussion about constitutional rights and civil rights from the beginning are, as, you know, civil rights are not something we get to vote on. We don't get to decide that I don't like you and your religion, so you don't have any freedom of religion or freedom of speech. Our rights in law, our right to know why we've been arrested and brought to court before we're imprisoned are based on fundamental rights in the Constitution and the Bill of Rights, because if we put those things up for a vote, a lot of times, we wouldn't have any of those rights.

ezra klein

One of the assumptions often and the language that gets used in this conversation is to really gender the politics of it. And I want to take a moment and complicate it a bit. One issue here, of course, is that there are people who become pregnant who don't identify as women, but another is that women have not been and are not today a single monolithic force on abortion. Since roughly the '70s, around 20 percent of women have said that abortion should be legal in all cases.

A lot of the big pro-life groups or anti-abortion groups are, of course, led by women. And then, of course, there are men who sometimes get left out of this conversation as having an interest in it. They're seen as wielding power in the medical or political establishments, but, of course, men vote. They vote more Republican, which means, on net, they're voting for more anti-abortion politicians these days. But they also are fathers and have partners and so on.

And so I'm just curious how you think about the gendered politics of abortion and what we get right about it and wrong about it when we discuss it.

leslie reagan

Thank you for bringing these up. Everyone who gets pregnant, has babies, who might need an abortion, is not a woman, as we understand it, trans people — this is a real change to recognize that at all. And certainly, in terms of historical research, there would be no way to track that. Anyone who is pregnant, giving birth, they are identified as and seen as a woman in the records. It doesn't mean there weren't trans people, but they're not identifiable. So that is a very interesting wrinkle in the assumptions that we have.

And, of course, not all women think the same thing or do the same thing. And you're right. I would say all men and all women have an interest in the legal status of abortion, so maybe I should go back to that. But in terms of not all women are monolithic, no, they're not. And I tend to want to keep the discussion about the law and medical availability of a procedure that should be available and safe separate from people's beliefs and religious views.

I mean, I think this is something that we lose sight of frequently in the U.S. And, of course, the new right has tried to push in that direction — is that the law is not supposed to reflect the church. And when you have such a range of attitudes about something, that clearly shows that we are not in agreement, this is a religious debate, and we have to protect people's autonomy, their moral perspectives, and allow them to follow their own conscience.

So having abortion legal does not interfere with churches who believe it shouldn't be or who believe it's wrong or with individuals who do not want to do such a thing. And it doesn't interfere with their ability to try to persuade others that abortion is wrong, that life begins at conception. They can still do that, because we have freedom of religion and freedom of speech, but using the law to enforce a perspective, where there is so much — there has always been a range of opinions and, in fact, a long, long history of abortion being completely acceptable, I think that's using the law in the United States in a way that is unconstitutional, really.

In terms of men, yes, men are actually very interested and involved in abortion in a variety of ways. 19th-century feminist movements always sort of talked about voluntary motherhood. They supported voluntary motherhood. And by that, they meant, of course, that becoming a mother, having a baby has to be voluntary. And they were primarily thinking of the relationship in marital bedrooms, that men were known to force themselves upon their wives sexually and that that would make pregnancy involuntary.

And so a lot of what they were actually trying to do was change that relationship and power in bed and make it so that women could say no to their husbands and get men to accept that, and that abortion, when it was in the press, it tended to be presented as it was a single, unmarried woman who'd been seduced and abandoned. And that's why she would need an abortion.

And so in that kind of story, too, the interest that a man would have in an abortion is because he's seduced and abandoned — he's abused, exploited somebody, and an abortion serves his sexual interests. So those are sort of the history of how men have been talked about in terms of abortion — or they're performing them.

I think, though, the reality, if we look at the history, men and women together, in couples, brought down fertility in the United States, dropped it in half over the 19th century. Abortions — often, men might not be — if we're talking the 1900s, 1930s, women might not necessarily talk a lot with their husbands about it, but husbands understood and agreed. And it was really more in these cases of unmarried couples, where they needed to keep it a secret and to not have sex become visible, where they talked about it. Men were very — they were the ones who found the name of a provider, raised the money, brought her, so they were very much involved.

Now, in the 20th century, with Sanger, the birth control movement, the big change really was to talk about that women could be as sexual as men. And then I really think in our modern period, that abortion is important for all of us, because this right to make a decision about your body and sexuality is to the benefit of everyone. It actually is underlying the Supreme Court decisions that found that criminalizing sodomy was unconstitutional, that gay marriage had to be allowed, that allowing only heterosexual couples to marry was unconstitutional. This decision is about sexual freedom and autonomy in relationships that affects everybody.

ezra klein

As we come to a close here, I want to ask about the practical consequences of if Texas-style laws become the norm in many states. Your historical work has looked at many different regimes in which abortion was legal or illegal in varying ways. And, of course, what ends up happening is more complicated than what is written in the law.

So from a historical perspective, recognizing we can't purely predict the future, what do you think this law will do? What choices will people make? Will it bring down abortions? Will it move them underground? What do you expect to happen in a practical, on-the-ground way in places that adopt this kind of legislation?

leslie reagan

The United States has already been through a century of illegal abortions, so we do have some evidence of what the consequences are. But, of course, 2020, 2021, the 21st century is not going to be exactly the same. But making safe abortions hard to find, we know that it will have a variety of consequences. For people who have connections, who have money, who know other doctors, they'll be able to find abortions, even if it means flying out of the country. That was true in the past. That will be true now. It'll be more difficult but doable.

The people who will be most hurt are the ones who don't have much information, don't have access to it, don't have money, and we will see struggles to raise the money to go out of state or go to Mexico. We will see people who go into business to provide abortions. Some of those will be knowledgeable and safe. Some will be trying to help but may not be as good at providing abortion as others, and so there's likely to be injuries as a result. And some will do their own.

Now, what's different is we do have medication abortion. Maybe 40 percent or more women who get abortions use medication abortion — two pills, they take it at home. So those are going to be available over the internet, and there will be feminist organizations and medical organizations that are trying to provide that. If they use pills, they're inducing a miscarriage, and if they have heavy bleeding or if they have a fever or if they get scared and go into the emergency room, they will be interrogated by the medical staff. They may have police come in to investigate.

The Texas law isn't saying the police is involved yet, but we're talking about, like, if half the states, it becomes illegal, and that is what they did for 100 years of when abortion was a crime — was if someone alerted the police or the coroner, they came in, and they interrogated women about, where did you get this? Why did you do this? When did you have sex? And would also threaten to prosecute them or threaten to provide no health care at all, unless they told the truth.

So I think we'll see a lot of that kind of intense policing of women, but we'll also see new things of policing partners and businesses and what we've seen with Texas of trying to bring in the hundreds or thousands of kind of voluntary law enforcement people, which absolutely did not exist in the way that I think we could see it in the future.

ezra klein

I think that's the place to end. Always our final question: What are three books that have influenced you on this issue or just elsewhere that you would recommend to the audience?

leslie reagan

Well, there are many books, so it is a hard choice, but let me suggest for your listeners Laura Briggs, "How All Politics Became Reproductive Politics: From Welfare Reform to Foreclosure to Trump"; Carol Mason, "Killing for Life: The Apocalyptic Narrative of Pro-Life Politics," which is really excellent for seeing how racism is part of this movement and how it became so violent; and then there are a number of books where Loretta Ross is the editor or author. I'll give you one — "The Radical Reproductive Justice Foundation: Theory, Practice, and Critique." She's really one of the people who created the reproductive justice movement, the phrase, and those are really important writings.

ezra klein

Leslie Reagan, your books are "When Abortion Was a Crime" and "Dangerous Pregnancies." Thank you very much.

leslie reagan

Thank you.


ezra klein

"The Ezra Klein Show" is a production of New York Times Opinion. It is produced by Jeff Geld, Roge Karma and Annie Galvin. It is fact checked by Michelle Harris and original music by Isaac Jones. Mixing by Jeff Geld.

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