The Supreme Court is set to review a Mississippi law banning abortion after 15 weeks of pregnancy that intends to challenge Roe v. Wade, raising concern for advocates about how reproductive rights can be preserved without the landmark ruling. “I think it’s very, very likely that the court will either eradicate the right to choose abortion as we now know it completely or so undermine it to make it meaningless for most of American women,” says Kathryn Kolbert, longtime public interest attorney who argued the case of Planned Parenthood v. Casey before the Supreme Court in 1992, which is credited with saving Roe v. Wade. She lays out her argument in a new book published today, Controlling Women: What We Must Do Now to Save Reproductive Freedom. We also speak with co-author Julie Kay, a human rights attorney who argued for a human rights framework for abortion rights in Ireland before the European Court of Human Rights. “We’re not just talking about privacy or even equality,” Kay says of the fight for abortion access in the United States and beyond. “We’re really looking at liberty, dignity and the ability to have full participation in all aspects of life.”
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, as we turn now to another right Democrats face mounting pressure to preserve: women’s right to control their own bodies and choose to have an abortion.
Advocates note President Biden has not publicly said the word “abortion” once since he became president. Until 2019, he supported the Hyde Amendment, which bans federal funding for abortions and forces Medicaid patients in most states to pay for their abortions or stay pregnant because they can’t afford the procedure. Well, on Monday, for the first time in four decades, a key House subcommittee cleared a spending bill for the Department of Health and Human Services without including the Hyde Amendment. This is Appropriations Committee Chairwoman Rosa DeLauro.
REP. ROSA DELAURO: I know that this is an issue on which many of us disagree, but regardless of the original intent of Hyde, it has disproportionately impacted women of color, and it has ultimately led to more unintended pregnancies and later, riskier and more costly abortions. Quite frankly, allowing the Hyde Amendment to remain on the books is a disservice not only to our constituents, but also to the values that we espouse as a nation. We are finally doing what is right for our mothers, our families, our communities by striking this discriminatory amendment once and for all.
AMY GOODMAN: This comes as the now-ultraconservative Supreme Court is set to review a Mississippi law intended to challenge Roe v. Wade that would ban abortion after 15 weeks of pregnancy. If Roe v. Wade does not survive, can reproductive rights be preserved without it?
For more, we’re joined by the co-authors of a new book that addresses this question, just out today. It’s titled Controlling Women: What We Must Do Now to Save Reproductive Freedom. In Philadelphia, Kathryn Kolbert joins us, longtime public interest attorney who argued the landmark case of Planned Parenthood v. Casey before the Supreme Court in 1992, which is credited with saving Roe v. Wade. And in New York, Julie Kay is a human rights attorney who has argued for abortion rights internationally, including before the European Court of Human Rights in A, B and C v. Ireland, which prompted the liberalization of Ireland’s abortion law.
We welcome you both to Democracy Now! Kitty Kolbert, let’s begin with you. We have a Democratic president. Democrats control the Senate and the House. Yet President Biden has not said the word “abortion” since becoming president. Can you talk about the significance of this, and what you think has to happen right now, if you believe Roe v. Wade were — if Roe v. Wade were to be overturned, and if it isn’t?
KATHRYN KOLBERT: Thanks, Amy. It’s great to be here.
And let me just say, I think it’s more important for the president to do the right thing, not to talk about it, so I’m not disturbed by the fact that he hasn’t mentioned the question of abortion.
And I do think that the fact that the Hyde Amendment — efforts to repeal the Hyde Amendment, are going through Congress, are a very good thing, but let’s remember that that bill has a long, long way to go. It has to get through the House and the Senate, and there are not currently sufficient votes to support a Hyde-free bill. So we have a long way to go.
Let’s go back, though, to the more important question, is: What’s the Supreme Court going to do around this issue? And I think it’s very, very likely that the court will either eradicate the right to choose abortion as we now know it completely or so undermine it to make it meaningless for most of American women. And that means that we, as a nation, need to stand up and make changes, both at the state level and in Congress, to ensure that our rights are protected. And unless we do so, unless we change tactics, unless we go forward and with a new vision of what’s possible, we’re going to be in for a very, very, very difficult period of time.
AMY GOODMAN: Can you explain the Hyde Amendment?
KATHRYN KOLBERT: Sure. So, the Hyde Amendment is an appropriation to — is a rider to an appropriations bill. It prevents poor women, those who collect Medicaid funding, from obtaining an abortion. And there are Hyde-like restrictions on a whole range of federal laws, that prohibit, for example, women in the military and women in the Peace Corps and a range — anyone who receives, essentially, federal funding for their healthcare from obtaining abortions. And what this means is, is that the ability to have a baby is paid for, the ability to do every other type of healthcare is paid for, except abortion. And what that means for poor women is they don’t have the means to obtain the service. It is extremely discriminatory against poor women, young women, women of color. And it means that their ability to exercise the choice they want is prohibited.
AMY GOODMAN: This is Justice Ruth Bader Ginsburg speaking during her 1993 Supreme Court confirmation hearing.
JUSTICE RUTH BADER GINSBURG: [You asked me about] my thinking about equal protection versus individual autonomy, and my answer to you is it’s both. This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.
AMY GOODMAN: Ruth Bader Ginsburg was unapologetically pro-choice. She was confirmed 96 to 3. That was 1993. Kitty Kolbert, in 1992, you made your second appearance before the U.S. Supreme Court arguing Planned Parenthood v. Casey, the landmark case widely credited with saving Roe v. Wade, with what has been called “one of the most audacious litigation strategies in Supreme Court history.” Can you lay that out, what it is, how you argued this?
KATHRYN KOLBERT: Well, let’s say, Amy, that what happened in 1992 is being replicated now. We had, at the time, believed that Roe was going to be overturned. And, in fact, there were five votes at the time to repeal Roe, to totally eliminate it. It was only the last-minute change by Justice Kennedy that led to what we now know as Planned Parenthood v. Casey. And what that case did is it established that you had a right to have an abortion up until the time of viability.
But states had a lot more power to restrict those rights. And over the years, they’ve chipped away and chipped away and chipped away what we now think of as the right to choose abortion. And what that’s meant is many, many women, particularly poor women and young women, have been unable to obtain services in states all across the country.
As the court has gotten more conservative, we’re likely to see not only a replication of that, but at this point I think it’s absolutely clear there are six clear votes on this court to eliminate Roe, send the question back to the states, and then we are back to a state-by-state question. State legislatures will have tremendous power to ban abortion. And we estimate that about a third of the states in this country will ban abortion, should the court give them the right to do that.
AMY GOODMAN: This is how you began your opening argument in the U.S. Supreme Court.
KATHRYN KOLBERT: Whether our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case. Since this court’s decision in Roe v. Wade, a generation of American women have come of age secure in the knowledge that the Constitution provides the highest level of protection for their childbearing decisions. This landmark decision, which necessarily and logically flows from a century of this court’s jurisprudence, not only protects rights of bodily integrity and autonomy, but has enabled millions of women to participate fully and equally in society. The genius of Roe and the Constitution is that it fully protects rights of fundamental importance. Government may not chip away at fundamental rights, nor make them selectively available only to the most privileged women.
AMY GOODMAN: That’s Kitty Kolbert arguing before the U.S. Supreme Court. In your book, Controlling Women, Kitty, you say you did not expect to win.
KATHRYN KOLBERT: I did not. Our entire strategy was built on the view that there were five votes to overrule Roe, that the question would become a political one. We wanted to force that issue before the 1992 election, so that Bill Clinton could be the president and we could pass federal legislation to protect the right. So we were very, very surprised.
But I think the lesson — now it’s 20-some years later — is that the court has incredible power to eliminate the constitutional rights we hold dear. And they are poised now to do so again. And if that happens, we, as a movement, need to be prepared to win back those rights in state courts, in the state legislatures and in Congress. We can’t sit idly by as we see these rights being taken away. And that’s really the key here, is: What do we do need to do now to make sure that our rights are safeguarded going forward?
AMY GOODMAN: Julie Kay, you take a human rights lens to all these issues around reproductive rights, and you do this internationally. Talk about what happened in Ireland, a deeply religious Catholic country, around the issue of abortion.
JULIE KAY: Thank you, Amy.
You know, when I first arrived in Ireland, it was like going through the looking glass. We were coming out of the U.S., where Roe v. Wade had set privacy rights, that Planned Parenthood had preserved. Ireland was a very progressive country but had zero access to abortion. Women were forced to travel to England and other countries to access abortion services. And even saying the word “abortion” was stigmatized.
And what we’ve seen in the past 20 years is how using a human rights model and really allowing people to have a voice that goes beyond a sort of entrenched, religious-based control of government has brought about tremendous change. And so, what we’re seeing in this country is rights that have, at Roe, declined, declined, declined. In the rest of the world, we’re using a human rights model that really recognizes what’s at stake. And I think that was some of in the quote that you played from Ruth Bader Ginsburg. Even we’ve moved beyond that even, I think, to really recognize that we’re not just talking about privacy or even equality; we’re really looking at liberty, dignity and the ability to have full participation in all aspects of life.
AMY GOODMAN: So, how did Ireland legalize abortion?
JULIE KAY: It was decades of hard work, that obviously started well before I was living over there, with people who were willing to assist women directly in their travel, as well as working in the political realm, working with politicians who were reluctant to kind of step up and stick their heads above the parapet — not so dissimilar for what we see going on now today: “Of course, of course, I support you, but we have to be reasonable,” and kind of coating things in a veneer of reasonableness in deference to a sort of religious view that wasn’t actually how people thought and acted in practice, but was very much how — the control of government, similar to how we see things going on in Texas or at the federal level right now. And eventually, through different steps, through bringing a lawsuit challenging the ban at the European Court of Human Rights as a human rights issue, and having the European Court of Human Rights acknowledge that what Ireland was doing was not rising to its human rights obligation, and really putting that hand in hand with a mass movement of getting pressure out there leading to a referendum that ultimately gave people the right to vote and really let people say, “Enough, we’re not going to have, you know, the power of the government squelching our most important decision-making.”
AMY GOODMAN: I want to turn to Dallas, Texas. And this goes to the subtitle of your book, Controlling Women: What We Must Do Now to Save Reproductive Freedom. And as you both argue, it’s got to be beyond going to the Supreme Court. So, it’s Dallas, Texas. The high school valedictorian tosses out her preapproved commencement speech at her graduation last month and instead delivers this passionate denouncement of Texas’s assault on reproductive rights. This is Lake Highlands High School graduate Paxton Smith responding to the bill signed this year by Republican Governor Greg Abbott banning all abortions about six weeks into pregnancy.
PAXTON SMITH: I have dreams and hopes and ambitions. Every girl graduating today does. And we have spent our entire lives working towards our future. And without our input and without our consent, our control over that future has been stripped away from us. I am terrified that if my contraceptives fail, I am terrified that if I am raped, then my hopes and aspirations and dreams and efforts for my future will no longer matter. … And I cannot give up this platform to promote complacency and peace, when there is a war on my body and a war on my rights, a war on the rights of your mothers, a war on the rights of your sisters, a war on the rights of your daughters. We cannot stay silent. Thank you.
AMY GOODMAN: High school valedictorian Paxton Smith throwing out her preapproved speech. Kitty Kolbert, you argue it’s got to go beyond the Supreme Court. Can you talk about the significance of this, and the stories you tell in your book of women, the bravery of women, stories of, for example, Michelle Lee, the stories of the case of Rosa Hartford?
KATHRYN KOLBERT: So, Amy, I think the importance of what happened in Texas is that we see some resistance, that we see a young woman really being courageous, standing up, speaking her mind and making her views known. And it’s no accident that it went viral, because, of course, we all want to be inspired by acts of courage. And I think that’s what it’s going to take to win back our rights now. It means that we need to see resistance, that we can’t let these legislatures pass restrictive laws over and over and over again without some fighting back. So the Democrats have to build a spine. The women in these legislatures have to start fighting back in ways that they have never — you know, no longer is it OK to be nice and let this happen. They have to scream back and say it’s not OK. And I think that if that begins to happen at the state level — state legislators really hate controversy. They hate being in the news when there’s big disagreements. If we can start fighting back in a much more vigorous way, we can start pushing back on some of these restrictive laws.
But the important part here is also that we won Roe in the first instance because there was a movement for change among everyday American women, who really were frustrated that women were dying of back-alley abortions. And I think that we need to again reassert that it is the — a movement for change that’s ultimately going to control here. We saw it in Poland. We saw it in Argentina. We’re seeing it in different parts of the world. We need to bring it here to the United States.
AMY GOODMAN: Well, I want to thank you so much both for being with us. Congratulations on the publication of your book today. And if you want to read about the stories of remarkable women in history and the legal cases that are based on them, you can go to Controlling Women: What We Must Do Now to Save Reproductive Freedom, written by Kathryn Kolbert and Julie F. Kay.
This is Democracy Now! When we come back, we go to El Salvador to look at the criminalization of abortion through the incredible story of Teodora Vásquez, sentenced to 30 years in prison after her baby was born dead at nine months. It was a stillbirth. Stay with us.