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Mary Ziegler: Right Won't Stop at Roe

Law professor Mary Ziegler explains how the anti-abortion movement upended the GOP establishment and helped push the courts to the right. Her new book is Dollars for Life.


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.

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