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Why overturning Roe isn't the final goal of the anti-abortion movement

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. The Supreme Court is wrapping up its term, and it's expected that the court will overturn Roe v. Wade. A draft of Justice Alito's majority opinion that was leaked early last month would end the federally guaranteed constitutional right to abortion and allow states to write their own abortion laws. This is happening as we approach the 50th anniversary of Roe. We're going to talk about how we got here and what might happen next.

My guest, Mary Ziegler, has written several books and many articles and op-eds about the debates and battles over abortion. She says overturning Roe isn't the final goal of the anti-abortion movement. Her new book is called "Dollars For Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." It's about how the anti-abortion movement became a major force within the Republican Party and, in the process, transformed the party, opening the door to insurgents and populists like Donald Trump. Ziegler is a professor of law at the University of California, Davis. We recorded our interview yesterday.

Mary Ziegler, welcome to FRESH AIR. Justice Alito's draft said that Roe was egregiously wrong from the start. On what grounds?

MARY ZIEGLER: It answers this question that there can be no right to abortion by looking at what Justice Alito describes as history and tradition, which he says are the exclusive source of our constitutional rights. And this version of history and tradition are fairly frozen, right? They don't evolve over time. So Justice Alito focuses on the 19th century and reasons that abortion had been a crime throughout much of the history of the common law and was certainly a crime in most states at the time the relevant constitutional provision, the 14th Amendment was written. So the thought, at least as Justice Alito frames it, is that there can be no abortion right if most states treated abortion as illicit or even criminal.

GROSS: So what you're saying is when the 14th Amendment guaranteeing equal protection was passed, abortion was illegal in many states. But that doesn't have to do with privacy, and Roe v. Wade was based on privacy. So what's the connection between the 14th Amendment and privacy?

ZIEGLER: So the 14th Amendment and privacy, the court had described that connection or illuminated that connection in a series of decisions, really, dating back to the 1920s but particularly to the 1960s. And the idea central to those decisions was that there are constitutional rights beyond those spelled out in the text of the Constitution. And I think even Justice Alito would agree with that. The court in the '60s and '70s and beyond suggested that rights to make certain key decisions in one's own life - so privacy in the sense more of self-determination or autonomy than in the sense of just secrecy - those rights were integral enough to be covered by the 14th Amendment and that those key decisions often involve matters involving family, so the right to dictate the upbringing of one's children, the right to procreate, the right to marry. Ultimately, that would come to include same-sex marriage, the right to use contraception.

So what you see Justice Alito saying here is something that kind of runs up against this idea of privacy - right? - that our basic rights have to be defined, Justice Alito suggests, in a far narrower way that looks almost exclusively to what the people who wrote the 14th Amendment in the 19th century would have thought.

GROSS: If Roe was built on the 14th Amendment and the right to privacy, what are some of the other cases that were built on the precedent of Roe that could be challenged now?

ZIEGLER: Well, I think it's better to think of this as a sort of interconnected web of decisions about privacy in the sense of self-determination and autonomy, and often it's an idea of autonomy that's closely connected to norms of equality. So after Roe, for example, we see decisions about same-sex intimacy, so laws that had once criminalized sodomy being struck down, certainly marriage between people of the same sex. There are older decisions that Roe draws on that are closely tied to it, like decisions involving birth control, interracial marriage, with whom you can live, so your right to live with blood family, even in scenarios where zoning ordinances may make that difficult.

All of those decisions touch on these ideas about the most personal, intimate and consequential life decisions and insulating people from state interference with those decisions. So if the Supreme Court is essentially saying the abortion right doesn't make sense because of how people would have thought at the time the 14th Amendment was written, we can reasonably ask whether the same logic could apply to the other rights in this interconnected web.

GROSS: How do you think overturning Roe affects the future of birth control?

ZIEGLER: Many may remember during fights about the Affordable Care Act's contraceptive mandate that religious employers objected to subsidizing what they described as abortion-inducing drugs, and they applied that term to IUDs, to emergency contraceptives. And so there may be some states that simply define as abortion common forms of contraception and ban them that way. So I think that's the most likely thing we're going to see in the short term, that abortion bans themselves will affect access to contraception.

It's possible - I think less likely - that states would try to prohibit contraception directly. But at the moment, I haven't seen evidence that conservative states are looking to regulate contraception directly. Of course, that could change. You know, if you would've asked me five or 10 years ago if we would be having this conversation about Roe, I probably wouldn't have said yes.

GROSS: Is overturning Roe like the final destination for the anti-abortion movement? Or are there plans to go beyond that?

ZIEGLER: Oh, there are definitely plans to go beyond it. So I think in the book and in all of my research, it's quite clear that the anti-abortion movement is a personhood movement. From its inception, the anti-abortion movement was about the idea that there are fundamental rights for unborn children, that unborn children or fetuses have rights to equality under the law, have rights to due process of the law. And that's the end goal, right? It's not overturning Roe and allowing states to do whatever they want; it's instead to require that all states, so progressive as well as conservative states, cannot permit abortion. And it's also, of course, to prevent as many abortions as possible from happening until that personhood goal is reached.

So overturning Roe, of course, is a major step, but it will neither mean the declaration of personhood nor necessarily a huge decline in the number of abortions if people are allowed to travel out of state. And if states are not punishing women and pregnant people and they can get abortion medications on the internet and if progressive states step up their support for people seeking abortion, financially and otherwise, we may not see that much of a decline in the abortion rate. So I think this battle will continue. And for abortion opponents, this is more the beginning of the story than the end.

GROSS: To bestow on the fetus the right of personhood - what would that require? Is that something states can do, or does that require a constitutional amendment? Because there had been a movement for a constitutional amendment, but as you write in your books, the anti-abortion movement kind of realized that was out of reach, at least then in the past.

ZIEGLER: Right. I mean, so there are state efforts to declare personhood within states. So that's quite common in red states. But again, from the standpoint of the anti-abortion movement, that doesn't really matter a lot. So what the anti-abortion movement is looking for is nationwide personhood protection. That in theory would be possible, as you mentioned, through a constitutional amendment, which still seems politically impossible, or potentially through a Supreme Court decision. I think this is what some people in the anti-abortion movement want now, a Supreme Court decision saying abortion is unconstitutional.

Now, of course, that kind of Supreme Court decision, just like any other, could be overturned. But that would be more realistic, I think, from the standpoint of the anti-abortion movement than a constitutional amendment. They might also ask for federal legislation banning abortion, but that, too, of course, could be repealed by a subsequent Congress or vetoed depending on who's in the White House.

GROSS: Let's take a short break here, and then, we'll talk some more. If you're just joining us, my guest is Mary Ziegler, who's written several books about the abortion wars. Her new one is called "Dollars For Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." We'll be right back. This is FRESH AIR.

(SOUNDBITE OF SOLANGE SONG, "WEARY")

GROSS: This is FRESH AIR. Let's get back to my interview with Mary Ziegler. She's written extensively about the abortion wars. Her new book is called "Dollars For Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." It's about how the anti-abortion movement became so powerful in the Republican Party and, in the process, weakened the Republican establishment and opened the doors to insurgents and populists like Donald Trump. Our interview was recorded yesterday.

If we look at the present and project into the future - in the present, we already have laws in some red states that are very strict about abortion. Projecting into the future, what kind of conflicts do you foresee between red states and blue states about how abortion should be regulated? For example, if a red state passes a law that women aren't allowed to travel to another state for abortions, but blue states welcome women who want to go there for an abortion, like, who wins? How is that decided?

ZIEGLER: Well, the problem is that there's not a very clear answer to that question because there are just really no good parallels legally to that setup, right? If you try to rack your brain for what are scenarios where one state says if you go do something that's legal in another state, we're going to punish you or punish the person helping you do that thing in the other state, you can't really come up with great examples. So there are different areas of ambiguity that make this complicated. The first is what lawyers would call choice of law. So when states say - one state says something is illegal, another state says something is legal, who gets to decide? There's a whole body of law and scholarship on this question, and the answer is pretty ambiguous.

And then there are constitutional questions as well. There is a constitutional right to travel. There's questions about whether that's violated if a red state says you cannot go to a blue state to do this or the blue state doctor cannot help you if you go. And there are questions involving what's called the Dormant Commerce Clause, which deals with states' interference with commerce in other states. The problem is that these areas of law are pretty underdeveloped, so we don't have a lot of guidance from precedent or from the Supreme Court about what either of them really will look like in this context. So what you're really going to be seeing is conservative and progressive states kind of sending up trial balloons and not really knowing what's going to happen, which, of course, is going to lead, I think, to more conflict, right? We have people who feel very deeply about this issue acting in an environment of extreme uncertainty.

GROSS: You envision a future in which there's three different kinds of states regarding abortion law. What are you envisioning?

ZIEGLER: Well, I think, obviously, there are going to be the kind of classic, you know, states that disallow abortion and sometimes go to extremes in enforcing those bans, right? So we may see extensive digital surveillance of people of reproductive age. We may see efforts, as we mentioned, to try to prevent interstate travel. We may see efforts to punish pregnant people directly. There'll be states, of course, very progressive states, that not only allow people in their states to have abortions, but facilitate travel from other states, potentially by providing financial support, by protecting their own physicians against extradition requests or lawsuits.

And then there may be, at least for a time, potentially for longer, states that restrict abortion heavily but don't go all the way to ban since (ph) fertilization. And those states, of course, will be battlegrounds where we see lots of money and energy coming in not just from within the state, but nationally. So you can imagine, at least at the moment, Florida is in this category. North Carolina may be in this category. Pennsylvania down the road may be in this category - so usually, what would be kind of politically contested states where politicians are not sure the extent to which they can cater to the anti-abortion movement without alienating their voters.

It's unclear, of course, in the long-term future where we'll end up with just two Americas - right? - one where abortion is broadly illegal and one where abortion is proudly legal. But at least in the short term, it appears that there will be these states somewhere in the middle where we'll see a very heated conflict play out.

GROSS: You mentioned the possibility of digital surveillance - of who and what kind of surveillance?

ZIEGLER: Well, if you stop and think about this - if a state says you can't have an abortion, how will that be enforced? Because we now live in a world where you can get abortion medication on the internet from abroad. And so how would the state of Texas, for example, know if you're doing that? There is, of course - you know, they could try to monitor the mail. There are ways in which the post office, for example, has images of the outside of one's mail, and those are not protected by privacy expectations. But any organization shipping abortion medication is not going to indicate that that's what it's doing on the outside of your mail. So the other way that the government can find out what you're doing is maybe informants, right? We've seen bounty schemes in Texas.

And the third way, of course, is digital surveillance. So we know that law enforcement, like customs and immigration control, have, at times, purchased data from various digital service providers, like apps, that can sell that data to law enforcement the same way they can - or at least claim the right to do so - the same right they - to sell data to anyone else. They can get warrants. And so what might that data look like? Well, if you search for abortion on Google - right? - if you have - you know, you take an Uber, and there's data from that app about where you went. There's the GPS data on your phone. There are your unencrypted text messages - a variety of things like that the government may use to try to figure out who's having an abortion. And then, of course, that would - could potentially sweep pretty broadly, right? I mean, if you're thinking about how anyone would know people were having abortions, they would have to be surveying a group of people much broader than those who ultimately would turn out to be seeking abortions.

GROSS: Well, talk about the right to privacy. Doesn't that violate the right to privacy if the government is surveilling you and, you know, gathering your private information, especially if it's medically related?

ZIEGLER: Potentially, right? But I think this speaks to a broader problem with digital privacy, which is that there - at times, we've seen courts and other government actors essentially say, you should know that you don't have an expectation of privacy when you type something in the Google search bar because, you know, Google's been selling that data to a variety of actors for a long time. So, I mean, this may be a wake-up call for many Americans, not just about privacy when it comes to abortion or contraception, but when it comes to privacy more broadly because I think we'll see people realizing that they may not have the privacy in their digital data that they thought they did.

GROSS: Are there new consequences that you think abortion providers will be facing in the future in red states?

ZIEGLER: Well, I imagine that abortion providers in red states will either have to close shop or face significant prison terms, right? We've seen states treating abortion as a serious crime, subject to punishment from anywhere from one year in prison to life in prison. So most abortion providers - if we take Texas as a model, given that it passed the SB 8 law that allowed abortion providers to be sued, what happened there, for the most part, was that abortion providers just stopped offering procedures after the sixth week of pregnancy. So I would expect that in red states, most abortion providers will just close up shop. Those who continue will face really serious consequences, including imprisonment, including fines and including the loss of their medical licenses.

It's worth noting, too, that it's not just providers who are facing these consequences potentially in the short term. Some states are also including criminal punishment for people who aid or abet people seeking abortions. So those could be abortion funds and groups that help low-income people pay for abortions. It could be family members who help to pay for abortions. So the kind of criminal dragnet is going to be broader than just doctors, although doctors are definitely the ones who are in the crosshairs the most.

GROSS: Let's talk about punishing women who have an abortion. As you've pointed out in your writing, you know, in the past, it's mostly been abortion providers who have been targeted with, you know, any kind of criminal punishment. But now it looks like we're opening up the possibility in some states of criminalizing women who have abortions. Where do we stand on that?

ZIEGLER: So at the moment, pretty much all red states have said they're not going to punish women, and they're sticking to it. Most of the big anti-abortion groups are saying the same thing. But we're still seeing movement. So there's a group of people who identify as abortion abolitionists. They've written kind of model bills that they're pushing in a variety of states that would punish women. And I think they have momentum because it's going to be much harder for red states to punish doctors in blue states than it is to be - going to be to punish the women who live in their own states and work in their own states and raise their families in their own states. I don't know who's going to have the upper hand in those struggles.

But in recent weeks, for example, the state of Louisiana advanced a bill that would have punished women. It was eventually killed or - not killed, but that piece of the bill was done away with. But we know that this is not the end of the story and that people who want to punish women have greater influence in the movement than they have in decades.

GROSS: Well, let me reintroduce you again. If you're just joining us, my guest is Mary Ziegler. She's written extensively about the abortion wars, including in several books. Her latest book is called "Dollars For Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." We'll be right back after a short break. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF FRED HERSCH'S "A RIDDLE SONG")

GROSS: This is FRESH AIR. I am Terry Gross. Let's get back to my interview with Mary Ziegler. She's written extensively about the abortion wars. Her new book is called "Dollars For Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." It's about how the anti-abortion movement became so powerful in the Republican Party and, in the process, weakened the Republican establishment and opened the doors to insurgents and populists like Donald Trump. She's a professor of law at the University of California, Davis.

So I've read news stories and heard in FRESH AIR interviews about women who have been punished because they had a miscarriage, but they were accused of aborting their fetus. So what do you know about how that has been done in the past and what that might mean for the future?

ZIEGLER: So even with Roe on the books, we know that people were getting punished for conduct during pregnancy. They punished people under laws regulating what states call feticide, or the killing of fetuses. They've regulated pregnant women under laws governing child abuse. And this has happened in contexts involving people who've gotten into fights that have resulted in miscarriages, drug use during pregnancy. So it's worth emphasizing that even if we don't get to a world where red states say they're going to punish women and officially punish women, there may still be pregnant people who are getting punished anyway.

And of course, it's important to remember who's getting punished in those situations, which unsurprisingly, tends to be people who are in more heavily policed communities, who are more likely to come into law - contact with law enforcement for other reasons. So there are kind of two ways that we could see people getting punished - one, in this more sort of stealth way that is not something states promote but are happy to carry out, and in a more formal way. And that's especially true when laws are unclear. And then, there's discretion given to sheriffs, to prosecutors, to other people to interpret who exactly they have the authority to punish.

GROSS: In the late '80s and early '90s, there were major blockades of clinics that provided abortions. And, you know, it was - it made it very difficult for women to enter. Why was that a tactic that was used? And why was that tactic eventually downplayed? It assumed less importance, less emphasis.

ZIEGLER: Well, there were people in the movement who were not happy to just rely on law and politics. They wanted to prevent abortions right now even if that meant breaking the law. And so the clinic blockade movement appealed to people who wanted to say, I've done something to stop abortion today. So quite literally, groups of people would barricade entrances to clinics. They would do this sometimes with the explicit goal of being arrested in the hopes of clogging the court system with so many cases that the courts would feel they had to reverse Roe. And this was a pretty powerful technique from the late '80s to the early '90s. It's also worth emphasizing that these people were - Operation Rescue was a pretty explicitly religious movement. This was not framed as a kind of secular human rights movement the way we sometimes think or hear anti-abortion activists speaking. This was framed as an explicitly Christian, even explicitly evangelical Protestant, cause.

Why I think it died down was a combination of law. So in 1994, Congress passed a statute that really toughened penalties for people who used force and intimidation to prevent people from entering clinics. And so some of the people who'd been involved in blockades on a more casual basis weren't willing to face that kind of consequence and dropped out of the movement. The people who were left were sometimes more hardcore not just about blockades, but about the use of violence against clinics and even against doctors. And that kind of radicalization turned off some people from the blockade movement, delegitimized it in the eyes of many. And it, for a time, seems to have faded away. Some of the people who were involved in the clinic blockade movement are the ones today who'd see themselves as abolitionists and are calling for the punishment of women.

GROSS: Take us back to a time when the Republican establishment didn't care much about abortion.

ZIEGLER: Well, the most striking time really was during the late '80s and early '90s. You had Lee Atwater, who was the famous sort of hatchet man for George H.W. Bush, declaring that the Republican Party was a big tent, encouraging the formation of Republicans for Choice. Internally, in the White House, George H.W. Bush was writing his aides, and they were writing him that it would be a disaster for Bush if Roe were overturned because it would put him in the position of having to support fetal rights, which Bush saw as a political loser.

There was a time, I think, really quite some time, when Republicans wondered if aligning with the anti-abortion movement and particularly doing things that actually helped the anti-abortion movement was hurting the party politically. And so there were times when you saw Republican leaders trying to have it both ways, really, kind of courting anti-abortion voters but doing as little as possible to actually please them so as to potentially not alienate other voting blocs.

GROSS: The anti-abortion movement tried several strategies to get a better foothold within the party. What are some of the strategies that didn't quite work?

ZIEGLER: Well, I think that - the movement had held out the idea that being pro-life, as the movement put it, was good politics because many voters were pro-life. So in the '80s, there had been just the formation of pro-life PACs, or political action committees. There were get-out-the-vote campaigns. But I think there was a general feeling within the movement that if Republicans were in office, first, the thought was there would be a constitutional amendment banning abortion. And then, that didn't work, so the thought was if Republicans are in office, they'll nominate good people to the Supreme Court, and they'll vote to confirm them. But then 1992 rolled around, and you had six Supreme Court justices nominated by Republicans. And nevertheless, the court did not overturn Roe.

So that left abortion opponents with a couple of conclusions. They realized it wasn't enough to get regular people to care about the Supreme Court, which had been one of the movement's great accomplishes to that point. More would have to be done to control who the GOP actually picked to be on the court, and that would require, at least some of the people in the anti-abortion movement thought, money - right? - the ability to give more to Republican candidates, help Republican candidates raise more so they could win. And that launched the anti-abortion movement into an existing war to deregulate campaign spending and deregulate it in particular in a way that would facilitate spending not by political parties, but by outsiders like the anti-abortion movement itself.

GROSS: Well, the Citizens United Supreme Court decision opened up the doors to all kinds of spending on campaigns that wasn't allowed before. Did the anti-abortion movement help create a path to Citizens United?

ZIEGLER: Yeah. The anti-abortion movement was involved in key cases leading up to Citizens United and in Citizens United itself. And what's really interesting was that it wasn't so much that anti-abortion lawyers had a brilliant plan that worked out exactly as expected in Citizens United. In fact, the anti-abortion movement litigated a lot of Citizens United, but their plan was to focus on dark money and anonymous donations because they thought increasingly that if their positions were unpopular, donors, especially in blue states or purple states, would want secrecy as a condition of opening their wallets.

That argument obviously didn't work. The Supreme Court instead focused on spending by corporations. But the anti-abortion movement not only had a hand in the foundation of Citizens United, they also capitalized on this unexpected opportunity, which was essentially they realized that corporations don't just include for-profit businesses, they also include nonprofits like many anti-abortion groups. And they realized that this kind of new surge in outside spending on elections could change the balance of power in the GOP. So the traditional party establishment, which had much - usually had much, much, much more money to spend on campaigns than outside groups, that balance might shift, and that the GOP leadership may have less control over some of the outside money that was coming into elections in a way that the anti-abortion movement hoped would be promising.

GROSS: All right. There's still plenty more to talk about, but let's take a short break here. If you're just joining us, my guest is Mary Ziegler, who's written several books about the abortion wars. Her new one is called "Dollars For Life: The Anti-abortion Movement And The Fall Of The Republican Establishment." We'll be back after a short break. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR. Let's get back to my interview with Mary Ziegler. She's written extensively about the abortion wars. Her new book is called "Dollars for Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." It's about how the anti-abortion movement became so powerful in the Republican Party, and in the process, weakened the GOP establishment and opened the doors to insurgents and populists like Donald Trump. She's a professor of law at the University of California, Davis. We recorded our interview yesterday.

One major goal of the anti-abortion movement was to get Supreme Court justices on the bench who would overturn Roe. And as we've seen over the years, abortion became a litmus test for judicial nominees for Republicans. It was justices who would be opposed to abortion. And for Democrats, Democrats started appointing justices who would uphold Roe. What did the anti-abortion movement do to make abortion a litmus test?

ZIEGLER: Well, I think the anti-abortion movement's contribution was different than the ones we often hear about. So many of us have heard, for example, of the Federalist Society, which is the sort of flagship of the conservative legal movement. The Federalist Society, for example, provides lists of promising candidates to Republican presidents, from Donald Trump to George W. Bush, this sort of farm league of talent on the right. The anti-abortion movement was not particularly focused on the conservative elites. They were focused on convincing regular people who don't know much about the Supreme Court and don't care much about the law to focus on who sat on the Supreme Court when they voted.

So many, many of us remember in 2020, when Donald Trump was going to fill the seat vacated by Justice Ruth Bader Ginsburg, people at his rallies would chant, you know, fill that seat, fill that seat. The sort of regular Americans being that deeply invested in the composition of the Supreme Court, the anti-abortion movement did a lot of work on that, explaining that the Supreme Court was the way you would get rid of Roe and potentially even get to more than that, like a world in which the Supreme Court says there are fetal rights.

So that work went on for a long time. And I think there was also an important contribution from the movement in the sense that you see anti-abortion lawyers at some point saying it's not enough to nominate judges who are conservative. It's not enough to nominate judges who are affiliated with the Federalist Society. We need judges who are not worried about controversy because overruling Roe may be unpopular, it may produce backlash. And we need judges who are so committed to their interpretive approaches or their ideological worldview or even, you know, to courting controversy, potentially, that they'll reverse Roe anyway.

So there's a lot of attention paid within the movement to Clarence Thomas's confirmation and to the scandal he faced because of sexual harassment allegations involving Anita Hill. That, within the anti-abortion movement, was seen as a good litmus test for the kind of judge Thomas could be. And there was a sense that if there were more people on the bench who didn't care about public outcry, the end of Roe would be that much sooner. So the movement began to focus on finding different kinds of conservative judges, not just people who defined themselves as conservative in the first place.

GROSS: A premise of your new book is that the anti-abortion movement led to the downfall of the Republican establishment as it was known in the past. What do you think the key thing was that the anti-abortion movement did to transform the Republican Party?

ZIEGLER: Well, part of the story I tell does focus on money. And there were obviously other things that weakened the traditional Republican Party leadership. There was the rise of conservative media. So historically, establishment politicians often have the best connections to the media. So they had more of a platform. But with the rise of conservative talk radio, Fox News, Newsmax and the like, those outlets tended to give a platform to politicians that were the most extreme and the most ideologically pure. And that weakened traditional leaders. The polarization of the electorate has, too. And the same is true of what we call negative partisanship, which is basically when Americans feel negatively about people in the other party and would be unwilling to vote for a candidate from the other party even if they don't like their own nominee.

All of those things made a difference. But I argue in the book that money did, too, because in the past, the GOP establishment had been able to use its spending advantage, right - this was particularly through the party organizations - to crush populists like Pat Buchanan in the 1990s. And after Citizens United, spending was much more diffused. So you had nonprofits spending lots of money, super PACs spending lots of money, parties spending lots of money. So populists like Donald Trump had more of a safety net even when the traditional leadership didn't want them to be at the top of the ticket. They didn't have a kind of bailout from their spending advantage to get rid of those populists anymore. And some of that - a lot of that was because of work the anti-abortion movement had done to change the way our campaign spending works.

GROSS: When Donald Trump was running for president in 2016, he put a really big emphasis on appointing Supreme Court justices who would try to overturn Roe. And that, of course, was very appealing to people in the anti-abortion movement. Why do you think he put such an emphasis on that?

ZIEGLER: Part of the reason Trump put such an emphasis on that was because people in the anti-abortion movement really didn't like him at the beginning in 2016. There were plenty of moments when you had letters from women in the anti-abortion movement and during the primary season saying, literally, vote for anybody but Donald Trump (laughter). Write in anyone but Donald Trump. And Trump had, of course, you know, a personal life that might not have appealed to people in the anti-abortion movement, had a record of being pro-choice. And so I think he felt that he needed to do more to prove his pro-life or anti-abortion bona fides, and other politicians did. He also, I think, in office, recognized that he was, you know, unusually unpopular as a president, had historically low poll numbers and therefore had to do more to rev up his base to turn out the people who already liked him.

And in that way, I think, the anti-abortion movement was quite happy with him because there were many within the movement, after he became the party's candidate in 2016, saying, essentially, maybe it's not a bad thing that this guy is unpopular because we haven't fared well when we've had very popular Republican candidates, who do things that we want only when they feel like it because they don't need us. Maybe it's not a bad thing to have someone who needs us and therefore lets us call the shots. So there was a feeling that Donald Trump might be that person.

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Mary Ziegler, who's written several books about the abortion wars, including her new one, "Dollars For Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." We'll be right back. This is FRESH AIR.

(SOUNDBITE OF PATTI SMITH SONG, "WITHIN YOU WITHOUT YOU")

GROSS: This is FRESH AIR. Let's get back to my interview with Mary Ziegler. She's written extensively about the abortion wars. Her new book is called "Dollars For Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." It's about how the anti-abortion movement became so powerful in the Republican Party and, in the process, weakened the Republican establishment and opened the doors to insurgents and populists, like Donald Trump. She's a professor of law at the University of California, Davis. Our interview was recorded yesterday.

The Supreme Court has been releasing its opinions online this year. And to what extent do you think that's because of COVID precautions? And to what extent is that protecting the safety of the justices, especially after the death threat against Justice Kavanaugh?

ZIEGLER: I think it's a number of things. I mean, I think that the court is moving more quickly and much more radically on a variety of issues that people actually pay attention to than it has in decades. And I think that has intensified threats against the justices and raised legitimate safety concerns. It also seems to have really fundamentally eroded norms and collegiality within the court. And it's increased the odds of, you know, legitimate public anger at the court - not death threats, not violence, but just public backlash. And I think there is a sense within the court that the court is not functioning as it usually does. Law clerks are being watched closely to see if they had any involvement in the leak. So they're not able to kind of foster collegiality and make everything run smoothly the way they historically have been. The justices, I think, are suspicious and uncomfortable with one another.

So I think that they're symptoms both of a court that doesn't want to deal with the kinds of consequences that will come with announcing divisive decisions on abortion or guns or environmental regulations, and a court that's having some kind of institutional breakdown of kinds - right? - a court that isn't functioning the way we would have come to expect. And that's something that's concerning beyond the abortion context, too, both because if the court's not able to operate at full speed, that's not good. And if the court continues to lose the trust of the public, that's not good.

We've seen an erosion of trust in democratic institutions in the United States. The court had been the outlier, right? The court had been the institution that more Americans liked. We've already seen as early as this last fall the court having the lowest polling numbers it's had in the history of that question being asked, and I expect those numbers to go down much, much further. So I think there's an awareness on the court that the public's not going to be happy with a lot of what's going to happen. And the court is trying, I think, in a way to insulate itself from that, which I don't think will be successful.

GROSS: You were in law school in the late aughts. When you decided to make abortion an area of specialization for your legal scholarship, did you envision the possibility that Roe could be overturned?

ZIEGLER: In law school, it would have come as sort of unimaginable to me that Roe would be overturned. I think the more I studied this, the more I came to appreciate the sophistication of the anti-abortion movement. This is something I think many of us still miss. So now, when people ask me, you know, how is this happening, what's going on, the follow-up question is always, what did progressives do wrong? It's never, what did conservatives do right?

And so I think the more I came to appreciate that these were strategies that were changing basic things about how our elections work, I came to see that it was more possible that Roe would be overturned because there were a lot of smart people doing a lot of fairly sweeping things to get to the moment when Roe is gone. And so I think it's less of a surprise to me now, even though there's still - I think even though I know that, it still feels surreal, right? I think I'm kind of operating in those two very different mental spaces - right? - where this seems almost inevitable, but also impossible at the same time.

GROSS: Well, you walked me right into the question. What do you think progressives did wrong?

ZIEGLER: Right. Well, I think there are a couple of things progressives did wrong. I think there was a kind of professionalization of the pro-choice movement - right? a kind of effort to make the pro-choice movement a kind of smooth political machine - right? - that could focus group everything, pull everything and appeal to what many in the movement believe was a large American pro-choice majority. And I think while that was happening, the grassroots wasn't as engaged and wasn't as effective. This was especially true, I think, because the movement did a pretty poor job of outreach to people of color, even at the same time that the abortion rate in communities of color was higher and became even higher relative to the abortion rate in the white community. I think there were lots of moments when you see the kind of leadership of traditional pro-choice groups like NARAL or Planned Parenthood taking steps that are discouraging people of color from getting involved or making people of color feel that their issues are not as central. And I think that was important.

I think there was also a sort of weird way that the progressives handled the courts on this issue, both reflexively challenging everything that would come down through the states in court, but not doing as much to revamp strategy on judicial nominations and getting progressives to care about judges when they go to the polls. I think that effort was somewhat of a mess, too. But the clearest mistake - right? - is underestimating conservatives - right? - not seeing how much conservatives, especially in the anti-abortion movement, which I think was often dismissed as sort of not very advanced, not very savvy. That dismissal obviously was a big mistake.

GROSS: Mary Ziegler, thank you so much for talking with us.

ZIEGLER: Thanks for having me.

GROSS: Mary Ziegler's new book is called "Dollars For Life: The Anti-Abortion Movement And The Fall Of The Republican Establishment." She's a professor of law at the University of California, Davis.

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GROSS: FRESH AIR's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham, with additional engineering today from Tina Kalakay (ph). Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Roberta Shorrock, Sam Briger, Lauren Krenzel, Heidi Saman, Ann Marie Baldonado, Thea Chaloner, Seth Kelley and Joe Wolfram. Our digital media producer is Molly Seavy-Nesper. Therese Madden directed today's show. I'm Terry Gross. Transcript provided by NPR, Copyright NPR.