“It’s Been Devastating:” Legal Expert on Roe Overturn

SARA SIDNER, HOST: Now, to another issue dividing America — abortion. It’s one of the key subjects motivating voters in the upcoming midterms, according to a survey by the Kaiser family foundation. Back in June, the landmark US Supreme court ‘Dobbs’ decision eradicated the constitutional right to abortion and our next guest sees the fallout from that continuing for years. Kimberly Mutcherson is an award-winning reproductive rights legal scholar and Dean of Rutgers law school and she tells Michel Martin about the decision’s wide-reaching impacts.

MICHEL MARTIN, CONTRIBUTOR: Thank you, Sara. Dean Kimberly Mutcherson. Thank you so much for joining us.

KIMBERLY MUTCHERSON, CO-DEAN, RUTGERS LAW SCHOOL: Absolutely. Thanks for having me.

MARTIN: I just wanted to start with the Dobbs decision that has basically upended, you know, 50 years of law on reproductive rights in the United States. A lot of people seemed that they were shocked by this. And I wanted to ask if you were.

MUTCHERSON: Yeah. You know, I wasn’t shocked in large part because the Supreme Court was, you know, giving us hints that this is the direction that they were going in, if you recall, I mean, it feels like a long time ago, but Texas SB8 had gone into effect and the Supreme Court just let it sit. Right? And it was such a blatantly unconstitutional law and they refused to enjoy it. They refused to keep it from being enforced. And once that happened, it was pretty clear to me that the direction that we were moving in was not gonna be some sort of gradual rollback of Roe and Casey, but that they were actually gonna overrule it.

MARTIN: What do you think the effect of this has been so far? The other thing that I think a number of people say they are shocked by is the speed at which so many states have moved to, to roll back abortion rights in a very expansive way to basically outlaw abortion altogether as we are speaking now. How many states would you say that is? At least a dozen.

MUTCHERSON: Yeah, about 13, 14 at this point. Yeah. There’s so much litigation that it’s actually hard to know from day to day what the rules are in any given jurisdiction, which is, which is part of the chaos that people are living with right now. You know, I would say that if people were shocked by how quickly states moved, they were absolutely not paying attention for a number of years. You know, states have been passing various types of legislation to make it harder for women and other pregnant people to access abortion for a very long time. I mean, literally hundreds of pieces of legislation every year. And then we had states that were simply prepared for Roe to fall and actually had trigger laws in place that said, as soon as Roe is no longer good law, abortion is banned in our jurisdiction. So for those of us who do this work, and for people who were paying attention, there’s nothing shocking about how quickly clinics closed and how quickly states moved to make sure that people couldn’t access abortion in their borders.

MARTIN: How would you describe the impact so far?

MUTCHERSON: It’s been devastating. You know, obviously when you ban abortion, you are targeting the most vulnerable women among us. So young women, women of color, poor women, women who live in rural areas women who are incarcerated, women who are undocumented. And those are exactly the folks who are suffering right now. You know, clinics have closed. Mississippi, which is where this, where Dobbs originated from their last abortion clinic closed. And there are lots of states now that have no clinics whatsoever. And remember, those clinics didn’t necessarily only provide abortion services. They provided contraception. In some cases, they provided gender affirming care for trans people. So that’s a really significant loss. And then of course, the collateral consequences and these, I think a lot of people didn’t think about. You know, it’s not that you’re going in for an abortion, it’s that you’re having a miscarriage and your doctor isn’t able to provide you with the care that you would’ve expected during that miscarriage people going to get medications for their conditions that happen to be medications that are also used for medication abortion, and having pharmacists say, I refuse to dispense this medication to you. You know, there’s just so much chaos and so much confusion, and it’s just gonna continue that way, not just for months to come, but frankly, for years to come.

MARTIN: Why do you say it’s going to be years? Because I think that there’s some feeling that, that this issue has to come to a head, it will go back to the Supreme Court, and at some point the issue has to be sort of resolved in some way. You say that that’s just not realistic. Why is that?

MUTCHERSON: No, I don’t think that’s realistic at all. I mean, in the first instance, there are a lot of things that have to be sorted out in terms of the impact of the decision. So what I mean by that is there were certain rules that were in place because of Roe versus Wade, and because of Casey. So, for instance, you couldn’t have an abortion statute that didn’t have an exception for the life and health of the pregnant person. You couldn’t have a, a parental notification law without also having a judicial bypass. You couldn’t require a married woman to notify or get consent from her husband before she had an abortion. It’s not clear what, if any of that continues to still be on the table. So those are issues that are certainly gonna have to be litigated. There are gonna be lots of contests about states’ rights. So, you know, Texas says you can’t have an abortion. Somebody travels to New Jersey and gets an abortion and comes home and Texas tries to arrest them. Those are issues that are gonna have to be sorted out. And then of course, you know, part of what was concerning about the opinion is not just what it says about abortion rights, but what it potentially says about other kinds of rights, whether it’s marriage equality or access to contraception or all sorts of other things.

MARTIN: And or it’s something like you were talking to us earlier about this, about in vitro fertilization. There are some 80,000 babies were born through in vitro fertilization, IVF in the United States alone, just in 2020. And how does this ruling, how does the chaos, as you call it, the ambiguity around the fallout from the end of Roe affect, something like that?

MUTCHERSON: Yeah, so, you know, another aspect of Roe and Casey was the Supreme Court saying that a fetus was not a constitutional person. So in other words, a fetus was not on par with a born, you know, human being. And so, you know, we could have sort of different standards for how we understood what a fetus was. And that then means also how we understood what an embryo was. But one of the other things that sort of went out of the door is what are the limits on a state’s interest in potential life? And that’s the language that the Supreme Court uses in this context, potential life. And so if the universe in which states can decide what potential life is, has been expanded, then a state could obviously decide that an embryo is potential life, and that an embryo is no different from say, a five year old. And if you are not gonna use your embryos in the same way as if you abandon a five year old, the state will just take custody and find somebody else to become parents to that embryo. Which sounds sort of, you know, fanciful and, and that could never happen. But, you know, there’s a whole industry of embryo adoption in this country, so it’s not such a far-fetched idea to imagine a state actually even going to those lengths to show its interest in potential life.

MARTIN: One of the, one of the complicated questions around abortion rights and access to abortion is the question of whether the woman is punished for having an abortion or seeking an abortion or the provider is. Many people may remember that during when the former president Donald Trump was, was running, and he had a previous life saying that he was pro-choice, but when he was running for president, cast his lot in with those who oppose abortion rights, he was asked this question and he said, You know, should the woman be punished? And he said, Yeah, of course. You know, the woman has to be punished. You know, for, as a political matter, this has not been the view of the mainstream anti-abortion movement. But I wonder if you think that that would change in a post, in a post Roe America.

MUTCHERSON: I do think that it’s gonna change. I mean, so, you know, the folks on the anti-choice side have often sort of taken this position that, you know, women are victims. They’re victims of the abortion industry, or they’re victims of their boyfriends or husbands who are forcing them to have abortions. And so, yes, you know, statutes typically punish people who provide abortions. They don’t punish the people who get abortions. But, you know, the world is really different. The science is really different now than it was prior to Roe. So now, you know, about 50% of abortions that take place in this country are medication abortions. You know, there’s, there’s nothing invasive. You don’t have to go into an office and, and have any sort of surgery. You get a prescription, you go to the pharmacist, they give you your pills, and you self-manage your abortion at home. And, you know, you can order those pills on the internet. You can get very good information about how to safely use those pills without ever seeing a healthcare provider. And because of that, I think that a lot of states are gonna find that they can’t quite shut down abortion in the way that they wanted to. And so that’s why we hear states talking about, you know, wanting to ban certain medications within their borders, which is again, gonna just set up litigation. You know, states saying they wanna be able to punish people for bringing pills over state lines or for mailing pills over state lines. So I think that they’re gonna have to be able to go after women themselves, because the opportunity to safely self-manage an abortion exists now in a way that folks necessarily didn’t have access to prior to Roe. So the idea that, you know, women are sort of sacrosanct here, and that we won’t go after women. You know, this country has been willing to go after particularly poor women and women of color for incomplete miscarriages or the suspicion of somebody trying to self-manage an abortion. So we know that we are capable of doing that, and I think we’re gonna see more of that in the months and the years to come.

MARTIN: I don’t think a lot of people really knew until a couple, unless they were living it right, just how dire the maternal mortality rates in the United States are. And I don’t think that everybody knows that the US has some of the worst maternal mortality statistics among developed nations. And those numbers are particularly dire for black women. They are four to five times the rate of maternal death for black women, and then you have high profile figures like Serena Williams, nearly dying childbirth, And people are like, What is going on here? Yeah. So I’m gonna ask you like, what is going on here since I would assume that maternal mortality is also part of your work in re- in your, your vision of reproductive rights. So why is that, by the way? Why is that?

MUTCHERSON: Yeah. I mean, you know, one of the things that is most difficult when we talk about maternal mortality in this country is that, you know, experts estimate that about half of those deaths could be avoided, right? So 400 plus women in this country should not be dying in childbirth every year if we were making sure that people had access to the right kind of healthcare, if we are making sure that our physicians are trained properly to deal with a wide range of patients, if we were making sure that pregnant people had access to good nutrition and all these other, all these other sorts of things. So for me, you know, it’s sort of the hypocrisy of the moment, right? To be somebody who proclaims that you are pro-life and that you want to save fetuses and you want to save unborn babies in a country that, as you said, has the highest maternal mortality rate of any developed country. And where black women in particular are significantly more likely to die during childbirth or immediately after childbirth than are white women. So, one of the things that you would hope to see in states that are restricting abortion is that at the same time, they are enhancing things like their social safety net, or they are providing more money for prenatal care, or they are making sure that people are housed in their states. And yet, that’s exactly the opposite of what we see. The states that have the most restrictive abortion laws also are the states that have the highest rates of maternal mortality, the highest rates of infant mortality and that have the lowest rates of actually providing a social safety net for those citizens. So, in the end, one of the things that we are inevitably going to see as a consequence of Dobbs is more dead women and more dead babies.

MARTIN: do you feel that supporters of abortion rights bear some responsibility for the circumstance that we are now in? I know that, you know, the late Supreme Court Justice Ruth Bader Ginsburg felt, and expressed that she felt that Roe was decided wrongly on, the legal basis of it, she felt was flawed. Basically on a right to privacy, which was not clearly articulated in the text, she felt as though it was just a very, was flawed reasoning. And also, there are those who believe subsequently that, you know, abortion rights supporters have not organized themselves as effectively as the, their opponents have and have not articulated a rationale for an expansive view of abortion rights. That is one that people could buy into. Do you think any of those arguments have merit?

MUTCHERSON: I think there’s, I think there’s a little bit of merit to all of it. So, you know, Justice Ginsburg you know, her position basically as you, as you said, was that rooting the right to abortion in a right to privacy, which is sort of this amorphous right that is not specifically enumerated in the Constitution you know, had that right sitting on a very precarious foundation. Whereas if we had focused on sex equality and the idea, that having a right to abortion is critical for women to be equal in this society, that potentially that would’ve taken us in a, in a different and better direction. You know, I’d look at this Supreme Court and I think, well, it doesn’t matter, right? Whether you had made the privacy argument or the sex equality argument, we would’ve ended up in the same place. So I’m not sure that it really makes a difference given where we are in terms of our Supreme Court and frankly, the raw politics that we’re seeing in our Supreme Court right now. In terms of the pro-choice movement, I do think that there was some, I don’t know if resting on their laurels is the right way to say it, because, you know, people who are in this work have seen the writing on the wall, right? And have sort of watched over the years as states move closer and closer to the line of banning abortion. And the folks on the right were incredibly well organized, right? This was a, this was a 50 year campaign with lots of thought and lots of money and lots of patience. So I think part of what needs to happen with folks on the left, one, is to recognize that, and this sort of goes back to what I was saying earlier about reproductive justice that the issues here are not just about abortion, right? So not paying attention to voter suppression is part of what got us here. You know, not paying attention to communities of color is part of what got us here. So there’s definitely work to be done, but I really think that because this is an issue where you do have these very strong poles on each end that will always be fighting about it in some way but that there’s, so there are so many people in the middle who again, recognize the complexity of what we are talking about that, you know, given their druthers if we were just having people vote, right a popular vote, that what we would find is most people would say that abortion should be legal, that there should be limits on, on access, that there should probably be gestational limits on when people can terminate a pregnancy. But that foundationally the right to terminate a pregnancy is one that everybody should have.

MARTIN: Dean Kimberly Mutcherson thank you so much for talking with us today.

MUTCHERSON: Thank you for having me.