Choose this podcast: abortion and the election

Charlotte Howard
Hi, it's Charlotte here. You're listening to a free episode of Checks and Balance. To listen every week, you'll need to become a subscriber. Sign up to Economist podcast plus click on the link in the show notes or search. Economist podcasts.

Sasha Nada
Ever googled your own name? Prepare for a shock because your personal info, including addresses and phone numbers, is out there, especially with the recent hacks at some big phone and healthcare companies. But here's where aura steps in. Aura scans the dark web for your sensitive information and sends real time alerts. Aura also actively requests that your information be removed from data broker sites, putting you back in control.

Aura provides you with a complete online safety toolkit, credit and transaction monitoring, a secure password manager, a privacy enhancing VPN, and more. Try Aura risk free with a 14 day trial@aura.com. safety that's aura.

Rest easy with aura. Visit aura.com safety today.

The Economist
The Economist.

Charlotte Howard
Yesterday, Donald Trump was found guilty of falsifying business records in the hush money trial in New York. He has, of course, promised to appeal. This is an important verdict and an historic moment. A felon is a major partys presumptive nominee for the presidency. Its also likely that this is the only trial that will come to a conclusion before November's election.

We have discussed the case on the show before, most recently in our episode of April 19, and we will talk about it again for today. Were looking at a different issue that is likely to have a bigger impact on the outcome of the election and which also has a profound effect on american the right to have an abortion. You can listen to our reporting and analysis of the verdict against Donald Trump on todays episode of the intelligence.

Roe v. Wade was argued twice before the Supreme Court, the first time in front of only seven justices. Jay Floyd argued for Texas, defending that states abortion ban. He opened with a joke about the two women who were opposing counsel, Linda Coffey and Sarah Weddington. Mister Floyd said, when a man argues against two beautiful ladies like this, they are going to have the last word.

When the case was re argued in front of a full court the following year, Mister Floyd was replaced. The Texas assistant attorney general, Robert Flowers, took a more conciliatory tone as he made what would be a losing argument, saying, we don't envy the court for having to make this decision. Now, 50 years later, millions of voters are taking the decision of abortion rights into their own hands, with 157 days to go until the 2024 election. I'm Charlotte Howard and this is checks and balance from the Economist.

Each week we take one big theme shaping american politics and explore it in depth today. What impact will abortion have on this election? And what impact will this election have on access to abortion?

In 2022, the Supreme Court gave control of abortion back to the people and their elected representatives. This November will be the greatest test yet of what that actually means. Democrats are trying to run hard on the issue and hope ballot initiatives and swing states will boost turnout. Will the issue of abortion decide the outcome of the presidential election, and what will the results mean for abortion rights?

With me to discuss this are Sasha Nada, who was one of the authors of our briefing in this week's issue of the Economist on this. Hi, Sasha. How are you? Hi, Charlotte. And Idris Klun, also in Washington.

I was in Washington last week and I managed to see Sasha but miss you, which I was sad about. Yes, my sister was having a baby, so we left to see and meet him. And he's doing well, which is very nice. That's a very good reason. Sasha, tell us about the briefing this week.

It's been almost two years since the DoB decision. There are other abortion issues that are now before the Supreme Court. What was the subject of this week's cover package? So this week we looked at a movement that was kind of triggered by the Dobbs decision two years ago, and it's this really inspiring grassroots movement. It's not just women, but it is women led essentially fighting back with petitions.

Idris Klun
So the topic of the briefing is very much looking at this movement that is aiming to change state laws on abortion. And through that lens, we're also looking at what the topic of abortion, and these groups in particular, might mean for the election. The most obvious way that the issue of abortion might have a big impact on the election is in the states where there will be referendums on the issue, where voters will go and vote directly on ballot measures that are related to abortion in some way. In April, Stevie Hertz, our us audio correspondent who contributed to this week's cover package, visited one such state to see the launch of this campaign.

The Economist
In Orlando, it's hard to escape the house of Mass. Even the venue for an abortion rights protest in a downtown park is a city owned stage, the Walt Disney amphitheater.

On a nearby lake, tourists and pedalos gawk as protesters carry giant models of the female reproductive system constructed out of pool noodles. Signs declare that not supporting women's rights is small dick energy, and t shirts label supporters abortion rights barbeats. For a state with a six week abortion ban, it's surprisingly joyous.

The protest is a launch event for a campaign aiming to enshrine a right to abortion until viability in the Florida constitution. Deanna Fellowes is dressed in hot pink and is sporting a bedazzled golf visor. At 77, this is her first protest. We don't want to go back. We want to protect our daughters and our grandchildren.

She was part of an army of 10,000 volunteers that helped collect over a million signatures to get the amendment on the ballot. Miss Fellows traveled 140 miles to be here today with her friend Lisa Dan. But it's so important because we're going backwards and we don't need to do that. We're going to stand up and we're going to fight and we're going to persevere for the rights for women, for our daughters, for our granddaughters and for the future. It's not right to go backwards.

Florida is one of as many as 16 states voting directly on abortion this year. A lot of attention is likely to turn to campaigns in Arizona and Nevada, where Democrats hope the initiatives will bolster turnout in the key swing states. But no state is more important for people who actually need abortions than Florida. Not only America's third largest state, it's surrounded by estates with their own bans. It was once and could be again an island of abortion access.

Lauren Brunzel
We are unfortunately going to see stories that are absolutely devastating. Providers right now are estimating that they will lose over half of their patient visits. People are passing these initiatives not because they're dem turnout mechanisms or because they're increasing voter turnout in general. People are voting for these initiatives because they understand that abortion is health care. Normal people no longer think of this as a partisan issue.

The Economist
Lauren Brunzel is the campaign manager for the Ballots initiative in Florida, once the definitive swing state in elections. The state is now firmly read. But that's not necessarily a problem for her ballot initiative. Something that I think folks are surprised by is that 35% of our signers for our petition during phase one of our effort were from Republicans and independents. We have always led with we want to get politicians out of these private health care decisions, and we are being genuine when we say that that refers to all politicians.

Lauren Brunzel
The reality is that these decisions should be between a medical provider and their patient. We've been very honest that this is the only pathway. There isn't a candidate campaign in the state of Florida that can rectify this situation. Since the Supreme Court overturned Roe v. Wade and scrapped a constitutional right to an abortion in Dobbs v.

The Economist
Jackson women's health, six states have voted directly on the issue. Some votes were looking for more protections for women, others greater restrictions. Some, like Floridas, were started by citizens collecting signatures, others by legislatures. But in each of those, including in red and purple states like Michigan, Ohio, and Kansas, abortion access has won. Out.

In Florida, though, the initiative needs 60% of the vote to pass a higher bar than any of those states. Miss Branzell, the campaign manager, is still taking some lessons from them, though. One, it shows that the vast majority of people support access to abortion, even in states where they were not trying to get to a high 50% threshold. They got there and they were running campaigns to get to 50%. So for us, as a campaign that needs to get to 60 and is planning for 60, that's incredibly exciting because it shows that the support is there.

Lauren Brunzel
You don't need to win in Ohio by 7%. And they did. I think also these initiatives were run by people who really care about patients and doctors. So you saw that the messaging was focused in patients and doctors, and that is an ethos that we want to carry over into this campaign. The opposition to the Florida amendment is taking lessons from earlier states, too.

The Economist
The messaging is similar, its calling the amendment too vague and too extreme. But the opposition will almost definitely have a lot less money than the abortion rights campaign. The pro choice side expects to spend $68 million by the end of the year, about the same as democrats spent in 2022, defending a competitive Senate seat in Nevada. And it may well be needed. Polls are limited, but so far show the abortion rights side well shy of what it needs.

When Michigan held its referendum in 2022, 57% voted in favour of protecting abortion, even though 63% broadly supported the procedure, a rate similar to Floridians at the University of Central Florida. That strand of ambivalence is clear, leaving an off season football game on a cool night. Students seem apathetic. I don't feel comfortable voting unless I do a lot of research, and I don't feel like doing the research. One student had heard of the amendment.

Idrees Kahloon
I don't think it's a bad thing to have, especially if the mother is able to take care of the kid. But he still wasn't sure if he'd vote. He doesn't keep up with it. I don't keep a peep.

Charlotte Howard
So, to recap, the Dobbs decision in 2022 eliminated the constitutional right to an abortion and left it to states to decide this issue. And since then, there has been this remarkable divergence in state policy. Let's start with a recap of states where legislatures had for years, right, been preparing for the end of roe. How did they move to limit access? Sasha?

Idris Klun
Well, those states were indeed kind of ready for this moment. And so about a dozen had trigger laws that started straight away right after dobbs, and, in effect, have meant that by now, one in three women of reproductive age in America lives in a state with either a complete ban or a near complete band. So the effects of essentially anti abortion states, or rather anti abortion legislatures has been very, very profound, as expected. And at the same time, you've seen more liberal states go in the opposite direction. So actually enshrining rights to abortion and improving access, what the net impact of all of this has been, has actually been quite surprising.

Abortion has actually gone up in total in America since Dobbs, which is obviously not what the movement calling for Roe's overthrow was hoping for. And so, Idris, there's a lot of activity in the past two years, right? What are we expecting, or what are you expecting in November? So I'm expecting Democrats to continue to leap on the issue. They've already made it one of the central points of their campaign.

Idrees Kahloon
I expect Republicans to continue to run away from the issue. You've already seen Donald Trump try to not accept responsibility for what's happened as a result of the justices that he appointed to the Supreme Court. You'll see that dynamic play out basically constantly. You also have the opportunity for these rights to be enshrined in more states as a result of referenda. And Democrats are hoping that that will boost turnout for them and improve their chances.

In a year in which Joe Biden doesn't appear to be winning, he doesn't appear to be doing particularly well, that this might have a kind of buoyant effect on his chances. In the same way that people thought that the 2004 state referenda campaign on gay marriage might have helped George W. Bush win comfortable reelection against John Kerry, which was the last time that a Republican won the popular vote. So I want to get into the political implications of this a bit later, but to dwell for a moment on this movement itself. One of the things I was struck by in your reporting, Sasha, is both that Democrats are keen to jump on this for obvious reasons, but also how remarkably nonpartisan the movement itself is.

Charlotte Howard
Can you give us a bit more color on who these people are and what their strategy is in different states? Most of these people are normal people who are incredibly annoyed with politicians in general, not just with republican politicians, and feel like it's essentially upon them to take matters into their own hands, which is literally what they're doing by carrying around these clipboards and gathering signatures from their neighbours friends, giving up their weekends, because they believe very, very strongly that the government has no business in this issue. You ask about the movement strategy. I mean, I think one of the things that makes it so fascinating, and also probably one of the reasons why it's been quite undercover is that it's grassroots. It's very, very local.

Idris Klun
So, although when you put all the pieces together, you see a movement, but when you zoom in, you just see local groups of people coming up with whatever strategy works best in their neighborhood. And so it's, we're talking about sort of tens of thousands of volunteers, and they have one goal, which is to gather enough signatures so that the people in their states in November can take a vote on usually a constitutional amendment. It's slightly different per state, but usually a constitutional amendment to protect or to enhance or to have a right to an abortion. And in most cases, it's up to viability. So that's 24 weeks.

Idrees Kahloon
I think it is also shrewd to not align oneself with a party, right? I mean, Florida is not going to be a democratic victory. So a close alignment with Joe Biden's campaign would be problematic for the organizers. And indeed, I think that they've tried to keep the campaign at arms length there. And also fundamentally, this is a libertarian argument that's being made about who has the right to control a health decision.

And if you want to win in places like Kansas, which has already happened, or Ohio or in Montana, where there might also be a referendum, you need to make these kinds of libertarian arguments. You can't make the kind of conventional, comfortably coastal arguments that Democrats might intrinsically leap towards. And I think that we've seen already the success of that approach, and I think you will probably see it as well in November. So it's interesting to think about the grassroots movement to protect abortion rights compared with what has largely been a grassroots movement that's many decades old to limit abortion rights. What is that very well established anti abortion movement looking like these days?

Idris Klun
I mean, I think they're struggling, to be honest. There's a really interesting symmetry between what's happening now, sort of post DobBs, with a sort of grassroots led pro abortion movement compared to sort of the anti abortion movement that, you know, existed in the sixties, but really had this national target after Roe, their presence in states that are likely to have referendums. Florida's a good example. It's quite a stale old tactic of just showing more fetuses and all the things they've done for a very long time. I think one of the reasons why they struggle is that the Republicans aren't quite as enthusiastically supporting them as they have in the past, and so they're slightly on their own.

Charlotte Howard
That raises an interesting question. Who is funding this stuff? So for the pro abortion movement, clearly there's a huge number of people who are mobilized and feel personally invested in this issue. But it costs money, right? Is it just small dollar donations or who's providing the cash here?

Idris Klun
It's massively expensive. I mean, as much as we might celebrate all this, we shouldn't be naive about how much this cost. Small dollars don't get you there. So for the pro abortion side, it's, I guess, the funds you would probably expect. So it's, Planned Parenthood, particularly its campaign arm, has put a lot of dollars in this.

The ACLU has dark money. Funds like JB Pritzker's fund has supported several states, particularly swing states that have ballot initiatives. Idris, in many ways, this groundswell that you see underway that seems quite nonpartisan and yet very organized, very purposeful and very effective would seem to be democracy at work. Are there limitations to it in general and specifically for this issue? There are limits.

Idrees Kahloon
If the idea is reconstituting Roe state by state, that won't happen, in part because not every state has a kind of ballot initiative that allows voters to impose their view over the state legislature. That's one limit. The second is that passage of referenda doesn't necessarily mean that the governor and state legislature, if they're minded to disagree, will faithfully execute the will of the people. So you've seen that in Florida with less contentious referendum that gave felons the right to vote. That really hasn't played out in reality because of implementing rules about repaying fines and whatnot.

So there other points that could be raised. But on the whole, I think it sends a very powerful signal about the kind of popular desire for these abortion rights to be enshrined in law. And I think it also perhaps gives support to the argument that's been made repeatedly for the past few decades, which was that Roe versus Wade, by taking the decision out of the hands of the states and putting it as a constitutional right, kind of froze in time this debate. And that if the court had not intervened at that time to set the standard that it did, that maybe we would have seen this popular movement play out decades ago and we would have arrived by consensus to a position that was basically nationally pro abortion. Okay, let's leave it there.

Charlotte Howard
We are going to get into the politics of this, how abortion might impact the outcome of the election in November. But first, can you each tell me what you've enjoyed recently from our coverage? Sasha, let's start with you from last week's issue. I absolutely loved our colleague Kerrian's article about the baby bust. I thought it was absolutely fantastic.

Idrees Kahloon
I really enjoyed Adam O'Neil's dispatch from the libertarian party convention, which just had a lot of fun, colorful details. And, you know, a lot of people showed up. Donald Trump was there trying to get the endorsement. He didn't get it. There's a lot going on in that piece, and I recommend that people read it.

Idris Klun
I second that. It's a great piece. And Adam also brought back an awful lot of very nice buttons to wear from the conference. So I highly recommend you come and give them a look, Charlotte, when you're next in town. You guys do have a lot of good campaign swag, I'll say that.

Charlotte Howard
Sasha Nadris just highlighted coverage in the Economist itself. This episode of checks and balance is free to listen to, but to listen to all episodes of this show and others, you do need a subscription to Economist podcast plus or to the Economist itself. A subscription to podcast plus gives you access to shows like money talks about business and finance. We have special limited series, including a new one coming up called the Modi Raj, which is about Narendra Modi, one of the world's most powerful men, and what his rise means for India and the world. To sign up, go to economist.com podcastsPlus or just search for Economist podcasts.

Daniela Raz is a us correspondent and data journalist at the Economist. For this week's cover package, she dove into what we know about, quote unquote, abortion voters and the presidential election. I started by asking her how Democrats are hoping abortion will affect the outcome of the race. So there are basically two ways that the Democrats are going to be hoping that abortion affects the election. And the first one is going to be through turnout, which is where abortion rights basically motivate people who otherwise wouldn't have voted.

Daniela Raz
And then the other one is through persuasion. So that's where some Republicans or independents who want to protect abortion rights think that protecting abortion rights requires voting for Democrats at the top of the ticket. Now, if we look back to the midterms, Democrats are probably right that the ballot over abortion rights helped stave off some major republican gains during the midterms. And basically Democrats are going to be hoping that there's a similar dynamic that plays out in November. And it definitely could, although probably to a lesser extent.

Charlotte Howard
And is that just because more time has passed or why is the issue less salient or top of mind? So one issue is obviously, yes, that it's just potentially going to be a less salient issue now that we're not sort of in the immediate aftermath of the ruling when it really animated voters and was super top of mind. The other issue is that turnout is just generally far higher during general elections than midterm elections. So many of these kind of Dobbs voters who turned out in 2022 strictly to vote for abortion rights candidates, and these referendums might have turned out anyway in the general election. And so in a general election, when there are just more voters, their effect is going to be dimmed.

So that's an interesting point on turnout, the other component of what you said had to do with persuasion, and beneath that, in turn, is a question of how much this really matters as an issue compared with the economy or the border or other issues that might be the reason why someone shows up on election day. Is there evidence that Republicans who really do worry about access to abortion will indeed swing to Dems, that abortion, for them, is more important than any of the other issues that might propel them to vote for Donald Trump over a Joe Biden? What we have to support this idea that republican voters might have voted for Democrats in order to save abortion is just a couple of academic papers that found some correlations using survey data over time. So researchers both at Caltech and at UC San Diego, in two separate papers, found that a small number of Republicans who viewed abortion as an important issue were more likely to vote for Democrats in 2022 than they were two years prior. Now, it's really hard to assess persuasion because, I mean, first off, we don't really know whether these registered Republicans are simply registered as such or if they actually are Republicans.

Daniela Raz
And it's feels impossible to know why somebody changed their vote. So you can only sort of triangulate what may have happened using survey data over time. And so there is some evidence for that, but it's a bit less persuasive than the turnout argument. To answer the question on persuasion, it would be really helpful to have more numbers on who the people are who really care about abortion access, where they are. Are they in swing states?

Charlotte Howard
Are they only people who would be voting for Joe Biden anyway? Are there a sizable number of independents who care about this a lot? Above all other issues, what does the data tell us. So, in terms of respondents saying it's their most important issue, that's only about 7%, and the vast majority of those are women. About half of them are living in suburban areas.

Daniela Raz
Something like two thirds of them voted for Joe Biden in 2020. And the majority of those people are Democrats, though some are independents and Republicans. But I would say that you don't have to think that abortion is your most important issue for it to be part of what you consider when you go to the ballot box. And we know that young voters and women voters care disproportionately. So.

For instance, when Michigan had an abortion referendum on the ballot in the 2022 midterms, the youth turnout in the state surged. It was 37%, which was the highest nationwide and far exceeded the 23% that we saw on average across the country. There's so many different variables that will come into play. To state the obvious on election day. What are some of the big factors that you think about as you consider how important abortion will be in determining the next president?

So we've said this so many times on this podcast, but it is true that the election is going to be very close. If you look at Arizona, it was decided by something like 10,000 votes last time. So we know that even small things can tip states one way or another. In some sense, if this is a low turnout election, then abortion can play a bigger role in the outcome, because the voters who are going to show up in November to protect abortion are going to make a larger share of the electorate than if it was a high turnout election. And in a high turnout election, their effect would be drowned out by other voters.

We know that there's little interest in this election. The other thing I think is that just strategically, the Democrats have more voters to tap into here than republicans do. Like if you are so strongly against abortion that it's a deciding factor in your vote. You've been voting republican anti abortion candidates for years now, whereas Democrats can kind of tap into the people who support the shades of Gray, who maybe want women to have access but don't think late term abortions should be allowed. There's basically much more room for Democrats to maneuver than for Republicans who've kind of backed themselves into a corner in some way.

And so in a close election, that's an important tool and I guess an important weapon for Democrats.

Charlotte Howard
So starting on a macro level, 2022, the midterms, there was a relatively broad agreement. As much as such consensus does exist in the Wacom election, that abortion really helped Democrats perform much better than people might have thought before, that it was an issue that really swayed the electorate towards Democrats. Is that going to be true this time around? Idris I think it'll continue to have a positive effect on democratic chances for Biden, for the Senate candidates and down ballot as well. But I think it's also important to remember that in 2022, you had a lot of bad candidates that basically Donald Trump handpicked who were saying that they were going to deny elections and whatnot.

Idrees Kahloon
And I think that also weighed against democratic chances. And Biden himself was not at the top of the ballot. So those factors, I think, are worth taking into account. I think if you add all these up, as much as anyone can do that several months out, you do still end up with a net positive effect for Democrats. But I don't think it'll be the kind of, of decisive blow that one might have expected.

On the other hand, marginal votes are what matter in very close elections. So I think that this is probably the most important one to pay attention to out of all the ones that you could be paying attention to. Yeah, I think that makes sense. And one of the things that I've been interested in is how Democrats are trying to take this issue and run with it, because in some ways, this is the ultimate anti wonk issue. Democrats often talk about programs, about acts of policy that help people, sometimes in really meaningful ways, but which are nevertheless hard to explain.

Charlotte Howard
They're unemotional. Abortion is the opposite of that. It, as an issue, prompts a visceral reaction among many voters. There's this benefit, at least politically, to loss aversion, that people have a really strong reaction to something being taken away from them, in this instance, the right to an abortion. So, Sasha, how are Democrats trying to seize on this in their messaging?

Idris Klun
What I've been struck with is both just how big they're betting on this topic, the share of ads that's going to abortion. They're really kind of betting the House on this topic. But in terms of the message they're trying to send, I think they've made a very sensible decision to not make Joe Biden their spokesperson on this. He's not very popular. What is popular is just showing women who have suffered on the back of what's happened, whether that's like a horrific miscarriage that wasn't managed well because they lived in a band state, or whether that's discovering very late in a pregnancy that they had a fetus with a horrible fatal illness and not being able to get care showing those women then saying Trump did this, and then finally saying, this can get worse if he is reelected because he will go for a federal ban.

It's quite an effective strategy. And they're going very, very big on that. You're seeing that in the dollars they're spending. Since the midterms, they've spent five times what the Republicans have spent on ads that are in some way about abortion. That's a huge shift, actually, for both parties.

Republicans have almost gone silent on this subject. Of every dollar, only $0.05 now goes to abortion ads for them, whereas for Dems, it's over $0.33. It shows how much they're betting on it and how much they're kind of riding the coattails of this issue, which finally inserts some potential energy into a fairly low energy campaign. Otherwise. Yeah, you mentioned Joe Biden in passing there.

Charlotte Howard
But of course, he's a devout Catholic and has been historically not the most ardent defender of abortion rights. And there's been a swing here. Adrie Sasha mentioned that Republicans have been largely silent on this, and I want to dwell on that a bit more, because Republicans have, of course, historically depended on opposition to Roe as a way to turn out voters. And there were some republican politicians who were very plainly anti abortion as a matter of faith. There's no reason to think, it's not genuine that someone like a Mike Pence has, for him, deeply felt moral objections to this.

And then there were other Republicans who were anti abortion as a matter of politics. So Donald Trump is someone who is quite open, I think, about not viewing abortion as an issue that is a matter of faith or morality. But he wanted anti Roe justices as a way to serve a broad constituency within the republican party. How do you see Republicans political strategy shifting in the post dobbs era? So I think you've seen a recognition among the pragmatic wing of the republican party that the dog has caught the car.

Idrees Kahloon
And although opposition to Roe, which set the limit of abortion at something like 24 weeks, fetal viability, that opposition to that standard was relatively popular. The way that republican states have carried out abortion policy after Roe, not only banning abortion entirely in the case of even rape or incest or fetal abnormalities, but going after even more things, going after the shipment of abortion drugs, going after IVF to some extent, going after contraception, even that's extremely, extremely unpopular. And so the true believers, I think, are true believers and do actually want to go all the way. And you see that among a faction. But the allure of the alliance has really faded.

And you see that with Donald Trump's statements running away from this issue. You see that with Kerry Lake, who surprised me incredibly by opposing the imposition of an abortion ban in Arizona and saying that she was in favor of child allowances, all these kind of nice democratic things. It was a very strange moment. I think the republican strategy is going to be the same as it was in 2022, which was to basically stay silent on this issue as much as possible. There is another point, though, to keep in mind, which is that as good an election as Democrats had in 2022 relative to expectations, simply copying and pasting those results in 2024 would still be very bad for Democrats.

Republicans won the popular vote by three points. So I think it's also important to acknowledge the reality, which is that a lot of Americans are going to vote for Republicans despite the lived experience of these issues as well. You pointed to some of the shades of anti abortion politics, right? That there are people who would oppose Roe but also oppose some of what's happening on the state level in republican led states. I think on the left in terms of shades of pro abortion policy and pro abortion rights.

Charlotte Howard
I'm really struck by how many ads continue to emphasize instances where a mother's health is at risk or where there's some completely egregious situation of a baby with lethal conditions and nevertheless an abortion is prohibited. That type of messaging, those types of situations continue to be the anecdotes that are trotted out as opposed to just women's basic right to have an abortion, even if the fetus is healthy and the mother is healthy and it's savvy. Right? But it is nevertheless noteworthy as we think about our national comfort or discomfort with a woman's right to terminate a pregnancy. Okay, we are going to get into the question of women's access to an abortion and how the election may impact it in a moment.

I
Theres never been a faster or easier way to start your weight loss journey than with Plushcare. Plushcare accepts most insurance plans and gives you online access to board certified physicians who can prescribe FDA approved weight loss medications like Wigovi and Zepbound. For those who qualify, take charge of your health and speak with a board certified physician about a weight loss plan thats right for you. Get started today@plushcare.com. weight loss.

That's plushcare.com weight loss. Plushcare.com weight loss.

Charlotte Howard
Mary Ziegler is a legal historian at the University of California, Davis, and has studied access to abortion and how it has been limited in the past, I asked her what to make of President Biden's claims that this election is indeed a choice between restoring Roe and having a federal ban on abortion. I think it's quite unlikely that if President Biden is reelected, that Roe v. Wade will be restored in the near term. Right. So there's largely two ways I think you could imagine that happening.

Mary Ziegler
One, Congress passing some kind of bill to restore Roe v. Wade. The current congressional maps don't appear to make that very likely. The other way this could happen would be if the Supreme Court reversed course and overturned its decision from 2022 that undid Roe v. Wade.

But of course, the Supreme Court's composition would need to change pretty dramatically. As to a ban, it's equally unlikely that Congress would pass a ban on abortion. It's hard for me to see republicans from unsafe districts voting for a federal ban. The trickier question is whether conservatives can transform a law that's already on the books, known as the Comstock act, into a kind of de facto backdoor ban on abortion. So some former Trump administration officials have been very public in saying that they believe this 1873 obscenity law makes it illegal to mail or put through a common carrier any abortion related item.

And they believe that that, in effect, is a ban on abortion. So there's a possibility in a Trump administration that you could have this law reinvented as a backdoor ban on abortion. That I think is somewhat more likely, but not inevitable, because it would require the Trump administration to interpret the law that way and the Supreme Court to agree with that interpretation. But both of those things seem entirely realistic to me, but not inevitable. If Congress is split, how much can the next president do without Congress to limit access to abortion?

A good amount. I think the Comstock act is the most important potential strategy. There are strategies conservatives have suggested that would involve limiting access to mifepristone, a pill used in more than half of abortions in the United States. That wouldn't require agreement of scientists at FDA, just the views of the secretary of health and Human Services, but those, too, would require the approval of the US Supreme Court. So I guess the way to think about this is that a potential President Trump could have a lot of power to limit access to abortion, but only if the US Supreme Court cooperates.

The genius of this Comstock act strategy, if you're the anti abortion movement, is that it puts the creation of a ban entirely in the hands of people who can never face reelection. Donald Trump can't run for reelection. The Supreme Court justices aren't elected in the first place. So if they want to turn the Comstock act into a ban, they can do so with no accountability to voters whatsoever, whereas a Republican who voted on a 15 week ban or a six week ban or a ban at fertilization could easily lose reelection. So I think a lot of the savvy players in the anti abortion movement are looking for strategies that are insulated from that kind of popular backlash.

Charlotte Howard
The savvy players in the anti abortion movement, historically, their interests have been very closely aligned with representatives and senators on the right. Do you find that those interests are starting to diverge as the political risks to those politicians becomes more clear? I think they've always been distinct in the sense that people in the anti abortion movement see their cause as the sort of human rights issue of the era. And when Republicans are not in lockstep, they've been willing to primary those Republicans, or, you know, essentially sometimes destroy their careers. Generally, I think the reason they were more aligned was because the movement's prior goal, to some extent, current goal, is control of the Supreme Court.

Mary Ziegler
Increasingly, I think the movement has tried to find ways of working around popular politics rather than through popular politics. So, for example, by focusing more on uncompetitive legislatures, on federal litigation, essentially on working to change the law and society without the approval of voters. And that's, I think, increased frustration within the movement of Republicans who aren't willing to go along with that. In other words, Republicans who are still kind of bound by ordinary political rules, who still have to worry about losing races and are therefore not willing to support the movement's positions. So I think part of what we're seeing now is a fracture between the GOP and the movement at some points, that reflects fundamental changes to the anti abortion movement itself.

Charlotte Howard
And then what about on the other side for the Biden administration? What more could they do to try to protect access to abortion? Well, I think to some degree, the Biden administration in reality operates more like a firewall to prevent further restrictions on abortion than to expand protections in significant ways. We've seen the Biden administration in court essentially fighting with states about their limits on abortion, as well as the Biden administration defending access to mifepristone. Part of the reason for that is when the Biden administration takes more aggressive executive action, it too has to get the approval of the US Supreme Court.

Mary Ziegler
And the US Supreme Court is much more conservative than the Biden administration is on abortion. How important are judicial appointments at this stage? What issues could still be litigated? What are the main questions that the court still face. I think they're very important.

I think the importance of judicial confirmations has been pretty understated in this election. I think we all became accustomed to thinking about Supreme Court nominations as essentially, will they or won't they overrule Roe? And now that Roe is gone, it sort of feels as if judicial confirmations are a lot less important than they used to be. One reason they're important, of course, is that nothing is forever on the Supreme Court, as we learned with the reversal of Roe. So two of the justices, who are the oldest justices, Alito and Thomas, were both on the majority that overruled Roe.

So any prospect of reversing course on abortion rights will depend on potentially new Supreme Court confirmations. Conversely, we've seen that since Roe was overturned, the Supreme Court's been hardly out of the business of resolving abortion cases. There are two abortion cases that will be resolved in the next month. There have been challenges to the authority of the FDA to approve mifepristone. There have been efforts to treat the Comstock act as a de facto banana.

Another major issue waiting in the wings is whether the Constitution, the 14th amendment of the Constitution, particularly treats fetuses and embryos as rights holding people, and therefore, whether liberal policies on things like abortion or in vitro fertilization are, in fact, unconstitutional. I don't think any experts at the moment think that would be a winning argument before the Supreme Court, at least as the court is currently constituted. But if the court were to become more conservative, outcomes like the recognition of fetal personhood, which now seem to be a long shot, could be on the table.

Charlotte Howard
Sasha Mary referred to two cases that are before the Supreme Court that have to do with abortion. What are they? So the court is expected to rule on both of these cases over the next few weeks. Indeed, one is about mifepristone, which is one of the two drugs used in most abortions now. And if the court ruled to essentially ban mifepristone, this would be a very, very big deal.

Idris Klun
I think it's unlikely that they will go that way. If I'm very honest, I think they will probably throw it out, but not because they disagree with the argument, but just on a sort of technicality saying that the plaintiffs don't have standing. So that kind of kicks the issue long. The second one is on something called emtala. It looks at whether states with abortion bans can and should still treat women who are having pregnancy emergencies.

So who are having very bad miscarriages or very problematic pregnancies in which they could essentially haemorrhage to death. There's a pretty grim case. And there we think, well, we don't know what the court's going to do. So I think what it does there will be really quite telling in terms of, again, how much salience the issue gets again. And I think that's one of the questions in the coming months.

Right. Does the post dobbs momentum come back? I think if the Supreme Court ruled, certainly if it ruled against mifapristone, that would be a massive deal. But even EMTALA, although it sounds a bit more technical, I think, could return some real momentum and would obviously be horrific for women who live in those states. Yeah, I was really interested in the oral arguments on emtala because in that instance, you had a federal statute passed in the eighties that the Biden administration is arguing takes precedence over the Idaho state law.

Charlotte Howard
And it's an example of the Biden administration trying to find a way to insert itself here to protect women's right to an abortion. It really scoured the landscape to look for any statute that it might use to fight back against some of these more restrictive state laws. The Comstock act is a law that comes up often in this discussion. Sasha, can you give a primer on it? The Comstock act is this late 19th century obscenity law that's been dusted off by conservative lawyers in the hope, as Mary said earlier, to sort of be a backdoor way of, in practice banning abortion.

Idris Klun
One of its main aims was to stop people from mailing around porn and other obscenities. But one of the things that it includes is, depending on how you interpret it, that you couldn't post anything related to abortion. So what people who hope there'll be some form of a federal ban eventually are sort of hitching their wagon on, is that if an enthusiastic president and Supreme Court would interpret this law as, in fact, being a ban, and so, you know, probably the lowest hanging fruit for Joe Biden, if he wanted to do something very significant for securing abortion rights, or at least defending against the national ban, would be to repeal this really old law. Yes, I think that's right. I think the Comps act is clearly antiquated in many ways, including its prohibition of letters that are too sexual, among other things.

Idrees Kahloon
But it would be easiest for Democrats to try to bring about the repeal. There's already been a bill introduced to do that. But if they wanted to do what Joe Biden is pledging to do, which is reinstate Roe, they would need to pass a law. That law would not be budgetary, it would be regulatory in nature, so would be subject, under the current rules, to a filibuster in the Senate. If Democrats do get control of the Senate, which is unlikely but possible, abortion would be the issue on which they decided to break the filibuster.

It's the most unifying issue for them, and it is the clearest one for them to try and get rid of the old super majority requirements of 60 votes and instead move towards a simple majority. And so I think that if there is a way that Biden is being credible when he pledges to restore Roe, it's through this mechanism of the Senate breaking the filibuster, or it's through, as Professor Ziegler said, appoint justices to the Supreme Court who would undo what the Supreme Court just did. Another really unifying issue for Democrats is contraception. And that's what I wanted to get to next. What are the other adjacent issues that might come up in coming months, either in states or in the Supreme Court?

Charlotte Howard
I was struck again in the Amtella arguments. Alito seemed to really want to insert this idea of the unborn child, and it both is relevant for the outcome of that case. But in whatever decision ultimately comes from the Supreme Court on this, if you have lots of mentions of the unborn child, that bolsters the idea of personhood for a fetus. So what are you looking at? The line of the Democrats is sort of, first they came for abortion, then they came for IVF, and next they'll come for contraception as well.

Idris Klun
And actually, they're sort of trying to force Republicans to take a position on a right to contraception, which you see playing out here in DC, which I think will be very interesting. I mean, I think the uniting, once very niche legal concepts behind all these things is this idea of fetal personhood. And I think is something we're going to hear a lot more about. It is essentially the idea that a fetus, or in some interpretations, even an embryo, has the same rights, basically as a child. The consequence of foetal personhood laws are very clear for IVF because IVF almost always involves the destruction of embryos, which would count as murder, essentially, but could even have consequences for some forms of contraception, like iuds.

So again, I think if you look down the road beyond 24, 25, you could just see the relationship between the Republicans and the pro life movement getting potentially more and more tense, because all of these policies will be much more unpopular also with their base, than their abortion. Stunts has been. I agree with that, and I'm struck by the practical consequences for healthcare providers and for women. There have been women in Idaho where a ban has only been in place for a few months. But the practical consequence of that state's abortion policy is that women are then airlifted by helicopter to a different state to get medically urgent care.

Charlotte Howard
Adrisse, the court was supposed to be getting itself out of the business of weighing in on these issues and said as much explicitly when they decided dobbs that seems now to have been proved incorrect. What do you make of the Supreme Court's continued imaginations on this subject? I think you see Alito and other judges asserting a new fundamental right, which is that fetuses have some degree of personhood. And I think it does demonstrate that where the court has gone off the rails over the past few decades has been the invention and really discovery of new fundamental rights embedded in the constitution. I think you could apply that argument to roe itself, which found the right to an abortion in a constitutional right to privacy.

Idrees Kahloon
I think you've seen the use of the First Amendment to mean unlimited campaign contributions. And if fundamental rights fluctuate and zigzag based on who is in charge of the court at that given time, I think that it undermines the entire project of. Of legitimacy for the judiciary. So I think that my hope, both for the practical consequences for women and also just the legitimacy of the court itself, would be that they don't pursue this fetal personhood argument much faster. But they might have to if courts at the state level do actually end up taking it up and implementing it in their own states.

Charlotte Howard
Yeah, I think that's right. I think you may see quite a bit more activity there.

I am going to ask you both some quiz questions. Today's episode describes some very important ballot measures, but the quiz today highlights some more ridiculous ones. These existed. These are not made up. And I want you to guess if these measures passed or failed in a quick fire round.

Okay, question number one. The Arizona Voter Reward act was a 2006 measure to give one randomly selected voter a million dollars simply for voting. Did this pass? That sounds like it might have passed. I was gonna say I had my first visit to Arizona for this piece, and I wouldn't be surprised if it did.

It failed, 67 to 33. Okay, next one. This was in 2010. The question was whether Denver should set up a commission for tracking UFO's pass or fail. Fail.

Idrees Kahloon
Pass. Failed 82 to 18. Nice, Idris, you also so far failing, but I'm sure you'll recover soon. Question number three. A vote banning the killing of horses for human consumption and the sale of horse meat.

Charlotte Howard
This was California in 1998. Did it pass or fail? Definitely passed. Definitely, definitely passed. You can't even have foie gras in California.

I think, yeah, there were 10,000 horses who were ending up as dinner in places like France and Switzerland. Belgium. Okay, that one did pass. You are both correct. Okay.

Confetti has dropped from the ceiling. Sasha has won. This is not a day I was expecting to have. I shouldn't say this, but, like, why is it so much worse to eat a horse than to eat a cow? No, I hear you.

Horses are beautiful, I think, but so are cows. Have you ever looked a cow in the eyes? I have. I have helped a cow give birth to a calf. Oh, wow.

So. Yes. But you still eat burgers. I do. Very happily.

I do. Thank you, Sasha. Thanks, Charlotte. Thanks, Adrisse. Thank you.

This episode was produced by Stevie Hertz. Carla Patella is our sound engineer with thanks to Daniela Raz, Marie Ziegler, Marguerite Howell, and Hannah Marino. If you like the podcast, please let people know and leave us a rating and a review. If you're not a subscriber to Economist podcast Plus, I really recommend that you sign up. It's only dollar five a month.

You can get in touch with us by email. The address is podcastsaconomist.com. in the meantime, thank you very much for listening. We will have more checks and balance next week.

Choose this podcast: abortion and the election

Primary Topic

Episode Summary

Main Takeaways

Episode Chapters

1: Introduction

2: Grassroots Movements

3: Political Implications

Actionable Advice

About This Episode

People

Companies

Books

Guest Name(s):

Content Warnings:

Transcript