Mary Ziegler

Mary, a noted abortion rights legal expert/advocate and Harvard Law School graduate, received FFRF’s “Forward Award.” The 2023 Guggenheim Fellow has written six books on abortion history and rights and will sign copies of Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment and Roe: The History of a National Obsession. She is a law professor at the University of California–Davis.

Thank you, Emily. I wish we could clone her.  Thank you, Emily. I wish we could clone her.  Our next awardee will be receiving — all right, can you hear me now? And actually I’ll take a moment.  Our next awardee will be receiving FFRF’s Forward Award, which is an ode by sculpture to the Forward Award statue that’s in front of the Capitol. It is one of the few public pieces of art by, and honoring, women. And previous recipients have included Cecile Richards, Gloria Steinem, Margaret Atwood.  This year’s recipient is someone you’ve undoubtedly seen quoted in numerous articles about developments in abortion rights and abortion bans and you’ve undoubtedly seen her interviewed on news shows. A native of Butte, Montana, Mary Ziegler is a graduate of Harvard and Harvard Law School. She lives in California with her family. She’s a 2023 Guggenheim fellow. Her fellowship will support research for a book on the history of the US fight over fetal personhood. That’s the biggie we’re going to be facing. This is under contract with Yale University Press, and Mary has been warning for some time that fetal personhood has been the ultimate goal of the antiabortion movement. Her most recent book is Roe: The History of a National Obsession, and before that, Dollars For Life: The Antiabortion Movement and the Fall of the Republican Establishment, which traces how the battle to reverse Roe vs. Wade changed the rules of campaign finance, and made fundamental changes to American democracy. She’ll be signing copies of both books directly after her talk, and she’s also written — I’m sorry, she’s written many other books, including Reproduction and the Constitution.  Mary Ziegler is not just a scholar. She is an advocate, and has written many prescient analyses and predictions about the fate of abortion rights in the United States. I’m delighted to introduce you, Mary, and hand you the Forward Award. And be careful, it’s very heavy. I can barely pick it up. It’s full bronze.  [applause]  Mary Ziegler: You’re right. Wow. Oof! That is heavy.  Annie Laurie:  Yeah, we’ll mail it to you.   Mary Ziegler: When Justice Alito told us that — he told us that the destruction of — the permissibility of abortion and the limitations upon it, he wrote, are to be resolved like the most important questions in our democracy, by citizens trying to persuade one another, and then voting. What I’m going to tell you today is that the history of Roe’s death and the story of what comes next is the story about American democracy, but not the one that Justice Alito might want us to believe. Not just for women and other people who can get pregnant, but for people of color, people born outside of the United States, it’s a history of how efforts have unfolded not just to change which Constitutional rights we have, but to change the ground rules of our elections from the flow of money into politics to the ability of people to vote. Generally the demise of Roe forces us to consider what reproductive justice means or what progressives have done wrong in the past that could be remedied in the future, but it’s also a reminder that the fall of Roe should matter to you even if you are past reproductive age and were never really particularly interested in the abortion issue in the first place, because it’s a discussion about the control of the ballot box and the definition of equality. So if you’re going to begin this story, there are any number of places you could begin, the struggles were not, as Justice Alito would have us believe started in the early 20th Century. These doctors certainly argued that a fetus was a separate biological person, with moral standing, but they had no claims that they made about the Constitution, or about rights. This in some ways was not surprising at the time. The American Medical Association of the era was deeply racist and making claims about constitutional rights or personhood almost inevitably in the era meant drawing an analogy to questions of race.  It was in this era that prominent abolitionists from Frederick Douglass to Abraham Lincoln argued that the Supreme Court got it wrong when it held that a  — and that that certainly included people of color.  Later generations of recent abortion activists as you know, often compare a fetus to a person of color, but the American Medical Association had no interest in making this argument, either before or after the text of the Constitution changed, because the analogy presupposed that people of color actually were persons with rights, and that was not something that people in the American Medical Association were prepared to acknowledge. So Storer, who’s really the father of early antiabortion efforts, especially argued about biology and demography. He argued that Catholic women were having too many children and Protestant women were having too few. Were women intended as a mere plaything, he wrote, there would be no need for her to have a uterus or ovaries. So abortion opponents and the people who wrote the Constitution didn’t say anything about abortion, which means that the original public meeting arguments for personhood are not that great. But fetal personhood as a movement became deeply important in the 1960s anyway. It began when efforts started to reform criminal abortion laws, the ones that Horatio Storer gave us in the 19th Century. At the time, a predominantly Catholic movement simply wanted to argue that legal abortion was unnecessary. Catholic physicians argued that pregnancy was no longer dangerous and people no longer died during pregnancy, or that victims of sexual assault couldn’t get pregnant at all. To our great shock and surprise, these arguments were unsuccessful and abortion reform continued apace. And so failing to convince Americans that they did not want legal abortion, antiabortion lawyers argued that they could not have it anyway, because abortion itself was unconstitutional. They debated various arguments for stressing this point, at first comparing a fetus to a criminal defendant denied counsel or a fair hearing, but the problem for this was that the remedy for this kind of procedural failure was more process, like a hearing or an attorney, and abortion opponents didn’t want anyone to have an abortion at all.  There were arguments that there might be an implied right to life in the Constitution, just as there are other rights not spelled out in the first 10 amendments of the Constitution. But this was problematic for abortion opponents who were against contraception. The need for a new Constitutional argument became even more urgent in a world where abortion was a crime and deep racial and class disparities emerged. At the time, abortion had become relatively safe for people who had private insurance and were able to use private hospitals, with mortality rates plummeting. But many patients of color were not able to access private hospitals and their mortality and morbidity actually increased in the 1950s and ’60s, and so it became possible to argue that criminal abortion laws were a deep equality problem. Abortion opponents began organizing that in fact, abortion was an equality problem and that the true victim of discrimination was the fetus or unborn child. To do so, they had to propose a complete reworking of equality law in the United States. Often when we ask if someone is a victim of discrimination in the United States, we ask if they belong to a community that’s been historically discriminated against.  Antiabortion lawyers conceded that that wasn’t true of fetuses. After all, there had been laws criminalizing all abortions.  They argued that it was quite simply irrelevant for all Americans and what mattered instead was physical vulnerability. From the very beginning this was an argument that would have had ramifications for many Americans. If accepted, it would have changed the way courts ruled on discriminations on the basis of sex, discrimination of national origin and much more.  It was a matter that captured the imaginations of lay Americans who flocked to antiabortion groups in the 1970s. These groups continued to talk about equality under the law, even though they acknowledged that most of the women who were getting abortions were married women who goofed.  Over time they framed arguments in a way that tracked how conservative white Americans were thinking about equality. As white mention resisted the Supreme Court’s desegregation decision in Brown v. Board of Education and they began to argue that the real problem was classifying people, putting people in categories, so it really didn’t matter if your community had been subordinated in the past or not, it simply mattered if you’d been put into the box. It was unfair to put a fetus into a box and to classify the fetus based on residence in the womb, rather than their individual merits. Which were impossible to determine during a pregnancy.  I think many of us believed that fetal personhood arguments disappeared for a time because we didn’t hear about them, right? We heard about this effort to overturn Roe v. Wade in truth they went underground. For a decade and more after Roe, the Constitution led antiabortion groups to forge a — a constitutional amendment of any kind really was not forthcoming. So the movement found another goal in the improbable place of Akron, Ohio, where the Supreme Court struck down an ordinance, but Ronald Reagan’s only Supreme Court Justice at the time was deeply critical of Roe. So the alternative and the justification of aligning with the Republican party, became getting rid of Roe. But that didn’t mean personal arguments went underground or that they were any less religious. Antiabortion groups just sought to write it into other areas of the law. They did so in a way that shored up their relationship with a Republican party at the time deeply committed to incarcerating people. Ronald Reagan and the era tapped into support for various victims’ rights movements, but he redined victimhood. Antiabortion groups picked up on this idea arguing that the fetus was a victim of crime. They fought for homicide laws which rapidly spread across the country and for laws authorizing the criminal punishment of drug users for child abuse or child neglect. Research of the era found that Black women were ten times more likely to be reported to the authorities for drug use during pregnancy and even when they were acquitted, which was often the case, denied custody of their children or forced to defend their parental rights in court.  All of this was a stepping stone towards recognizing the personhood of the fetus of a matter of faith and matter of Constitutional law. There’s a class of people who isn’t getting any protection explained one attorney in 1990, and it’s the unborn.  In doing so, they borrowed from conservative Christian litigators, who were fighting against the legalization of same sex intimacy. At the time, on occasion, when the Supreme Court was figuring out whether someone had a right to do something that wasn’t spelled out in the text or Constitution, they would look to what they called history and tradition, but the justices recognized that history and tradition changed. That our traditions in 2023 are not the traditions we held in 1883 or in 1903. Conservative Christian attorneys weren’t happy with this and wanted to argue that traditions couldn’t change. They didn’t make this argument directly, believing correctly that at the time it would have gone down in flames, but they argued that history and tradition still should be understood as fixed in time at the moment the Constitution was written. And so it was they argued that in the 80s, the right to homosexual sodomy could not be protected. Because Western Christian society has considered the practice of sodomy as within the proper scope of government regulation.  Antiabortion groups realized they could argue that historically and traditionally, this is our — our nation had not recognized the right to abortion or maybe prohibited or required the punishment of people who wronged the fetus. So this path to fetal rights seemed smooth and many thought that the — in 1992, as many of you remember, a Supreme Court chock full of Republicans voted to preserve what it called the central holding of Roe.  Sent the abortion movement back to the drawing board and it concluded that it needed more power within the Republican party to ensure that the right kind of justices were picked and the path to that power, of course, involved money and voting. It was then that antiabortion groups looked to the example of Pat Buchanan, who some of you may remember. Pat Buchanan was the Donald Trump of the era. He would literally wave a pitchfork and call his primary opponents, Bob Dole, a funeral director, which was not entirely inaccurate.  He also went over with — they literally buried Buchanan in a tidal wave of money. Antiabortion groups realized they needed to compete with that tide of money to get someone like Pat Buchanan over the hump. So they partnered with the Federalist Society and the conservative legal movement and they found a way to argue that they weren’t antiwoman, because in fact, women were like victims of big tobacco, they were not innocent because it was OK to have an abortion, or it was wrong to punish someone who had knowingly had an abortion, they were victims because they didn’t know what abortion was, just as tobacco users had been deceived by a massive deceitful industry. You see this analogy quite clearly with antiabortion opponents who still refer to abortion as “big abortion.” This argument was powerful because it suggested that women who did know what they were doing could in fact be punished for abortion.  It was also compelling to a changing abortion movement in its composition. Antiabortion movements for the most part had been single issue you, in part because they feared being labeled religious. The early group was overwhelmingly Catholic and it was criticized by saying it was a threat to the separation of church and state, a way of one group of people to impose their theology on everyone else. So antiabortion groups tried to make it seem like that wasn’t the case. But by the 2000s, that had begun to change, again, because of money. The more money flowed in and out of conservative religious organizations, the more conservative Protestant groups, like the alliance defended freedom, one of the groups ha litigated Dobbs became prominent.  It now has well over $125 million annual budget and the Alliance Defending Freedom was perfectly comfortable framing its cause as a Christian one and framing to religious liberty, the establishment of religion, same-sex marriage and much more. As the leaders explained, the Constitution was designed to reflect the Christian world view of America’s founders, who believed that our group springs from the recognition of a creator God.  So money enabled people who had been on the margins to come to the forefront of the antiabortion movement and to make the possibility of a Pat Buchanan success thinkable. It was this that brought antiabortion groups to the forefront to of campaign finance movement. Citizens United was crucial for the antiabortion movement, in part because many antiabortion groups are corporations and Citizens United allows corporations to have unlimited independent expenditures. It also changed the balance of power in the GOP. In the past, when someone like Pat Buchanan rose to the forefront, most money ran through political parties and political parties who saw a candidate like Donald Trump or Pat Buchanan would shunt them over to the side. But after Citizens United, there are PACs and nonprofits that don’t care anymore what the mainstream would think. So it was in part that Donald Trump was able to rise to the challenge because he had a cushion of outside spending to help them fend off challenges from what was remaining of the political establishment. Antiabortion groups understood it was important to limit who could vote, to. True the vote, which was formed in 2009 had as its founder, a prominent antiabortion attorney.  In November, 2020, after the election was over, Bob filed four lawsuits challenging polling practices in 18 counties across four crucial states, including Wisconsin, seeking to overturn the election, he eventually grew disturbed by what he thought would be a failed strategy and bowed out of the case. And he spent hours in his mind playing out how a better lawyer than Rudy Giuliani could have played it out better.   Prominent antiabortion groups, had their own initiatives to limit voting, particularly early in mail-in voting.  And yet it was, in the leadup to Dobbs that antiabortion lawyers insisted that it was Roe that was the threat to democracy, that Roe had taken away the abortion issue from the people and stopped them from having a say.  This was the story Brett Kavanaugh told us. He promised us a brighter tomorrow after a Roe. That was never going to happen to begin with, in part because the Dobbs decision was deeply counter majority  It’s also wrong in part because it’s not what antiabortion groups wanted, either. They want fetal personhood, which is much more than the Supreme Court gave them in Dobbs. That’s why we’ve seen a dynamic where in the aftermath of Dobbs, Americans who support abortion have done remarkably well at the polls, winning every single ballot initiative on abortion rights that have come before them since the Dobbs decision.  [applause]  And it’s also why ironically we’ve seen antiabortion groups turn time and time again to the courts. As we speak now, the Supreme Court is deciding whether to hear a case — unprecedented case, arguing that the FDA never had the authority to approve a drug that it signed off on 25 years ago. And which would open the door, of course, to challenges to any number of drugs any of us take in our lives. It’s why we’ve seen antiabortion groups trying to resurrect the Comstock Act. As in fact a de facto ban on all abortions. Comstock Act says you can’t mail any agent for abortion. It means you can’t have any abortion at all, because of course there are no abortions in hospitals or emergencies in any other scenario where people make their own devices and drugs at home, they get them from drug manufacturers.  They have recognized that fetal personhood is not going to be achievable through popular politics. Voters have never supported abortion bans with few or no exceptions.  Antiabortion groups are now trying to make it possible for people to travel, for making it impossible for doctors to.  — we’ve seen the Attorney General of Alabama signaling that he thinks he has the authority to do the same thing, a deeply uncertain question as a matter of Constitutional law. We’ve seen abortion opponents use the argument that all rights that we have now, including even the freedom of speech, should be filtered through this lens of history and tradition, such that speech that our forefathers might not have recognized as legitimate in 1789 or 1868 would no longer enjoy protection, whether that’s political speech, the speech of atheists, the speech of drag queens, or much more.  So it is, I think, that the standard for the antiabortion movement has long remained a national ban, regardless of what voters want. Congress isn’t going to pass one, as many times as you could ask Nikki Haley — voters are never going to endorse one, because they seem to be on a runaway train backing abortion rights in red, as well as blue states. The key to success will be conservative judges. The way we got from Roe to Dobbs was not because of a brilliant litigation strategy, chipping away at Dobbs by focusing on the most heartbreaking cases turning people away from getting care because they’re not close enough to death. Of course good arguments and strategies never hurt, but the antiabortion movement didn’t win because its arguments were good. It was making the same arguments when I was a baby and when I was 10 and when I was 15 than it did in 2022. What changed was the way people hearing the arguments and the Supreme Court behaved. This was a Supreme Court that didn’t seem interested either in its own reputation or in the will of the people. The Supreme Court rarely deviates far from popular opinion and suffers consequences when it does, yet, in Dobbs, the Court recognized quite clearly the overturning of Roe vs. Wade might be the end of its legitimacy. We’ve seen the Court take a pretty big hit from that. Justice Alito, too, told us that the only rights we have other than the ones spelled out in the text of the Constitution are those that would have been recognized at the time when the 14th Amendment was written, at a time when women could vote, at a time when people of color could meaningfully vote and at a time that people without money couldn’t have voted. I don’t know how many people in this room could have voted. Definitely not me probably not most y’all, either.  Contraception was being criminalized by people like Anthony Comstock for the first time, certainly not the right to same sex intimacy, or same sex marriage. Potentially Dobbs means something different for equality, too. This is what conservatives are arguing now in cases involving transgender youth and drag, they’re arguing in effect that Dobbs means you can discriminate on someone based on their ability to get pregnant and that’s not sex discrimination. Discrimination based on your access to abortion is OK, discrimination based on any kind of health care that only one kind of sex could get potentially is OK, so we’re seeing Dobbs being resurfaced in cases about gender affirming care and drag, too.  All of this I think means that the antiabortion movement that is much broader ambitions for the court. The Court has turned down a fetal personhood case once recently and Brett Kavanaugh suggested that the Constitution is scrupulously neutral, neither pro-life or pro-choice, but I for experience know that nothing is consistent with Brett Kavanaugh.  The struggle over abortion has always been about much more than Roe and indeed about much more than abortion. As women of color have long argued, fights over abortion can’t be separated from fights over the struggle for good health care or the ability to raise children we want. What’s become clear from history is that struggles over abortion can’t be divorced from the struggle to have elections dictated by voters rather than money or the struggle that people who want to vote have the ability to do so.  So Dobbs will remake the body politic, too. It’s why we’re seeping efforts to change the language of ballot initiatives or to take ballot initiatives away from voters altogether. It’s why we’re seeing so much effort to channel issues into the courts that voters could resolve themselves. Because from the 1960s onward the fight has been a struggle over the separation of church and state and it’s been a struggle about equality under the law and who gets it and become a fight over the kind of democracy we’re going to have or indeed whether we have one at all anymore. So I’ll stop there.  [applause]  Annie Laurie:  A couple of announcements. Mary Ziegler will be signing copies of her book in the back of the room. We had to move the book-signing tables over there by the AV stage. We’re going to ask for the lights to come up to full, because this is the time when we have more coffee and tea and you can get books signed, you can visit the sales tables and we still have more pastries and scones and we’re not back here until 11:00. Plenty of time to shop, mingle, and get books signed, and I want you to know that you can exit to any of these doors and this one is very close to our restroom over there. You just have to come back through the main ballroom door, so feel free to leave any door.  [break]

Freedom From Religion Foundation