Saletan is the chief political correspondent for Slate and the author of Bearing Right: How Conservatives Won the Abortion War. Here, he explains why he believes the pro-life side is winning the abortion war. He says that after the Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the pro-choice movement believed the threat to abortion rights was over. "The pro-choice groups started to lose money, started to lose support, and they started to lose political offices," he explains. Saletan also talks about the two abortion issues that the Supreme Court will soon face: Ayotte v. Planned Parenthood of Northern New England, which questions whether state regulations need to provide an exception for the health of the mother -- an exemption which pro-lifers see as a loophole -- and an appeal of the federal ban on partial-birth abortion. This is the edited transcript of an interview conducted on Aug. 31, 2005.
Tell me about [Supreme Court Justice Sandra Day] O'Connor's retirement and what that means for the pro-choice movement.
O'Connor was the fifth vote. She was the fifth vote both ways. When she voted with the pro-lifers they won. When she voted with the pro-choicers they won. So it's natural that the debate over her successor should be as heated as it is.
O'Connor was the first Reagan appointee, and she was the first of two Reagan appointees who turned out to be disappointments for pro-lifers. Here the pro-lifers have worked for so many years to elect a Republican president, a very conservative Republican president, a pro-life president, and two of the justices that he put on Court -- Sandra Day O'Connor and Anthony Kennedy -- turned against them on the question of Roe v. Wade. …
The spin that I've heard from a lot of pro-choice activists is that O'Connor is the pivotal vote on Roe v. Wade, and her successor will decide that issue, that Roe v. Wade is now in jeopardy. That is actually not true. O'Connor was the sixth vote for Roe v. Wade. So losing her seat, pro-choicers still have Roe v. Wade.
Her successor will be pivotal on two other issues now before the Court. One is parental notification; the other is partial-birth abortion. And the irony is that on those two issues, the polls are on the pro-life side, so it is actually to the advantage of the Republican Party, and the public in general will not be greatly alarmed if her successor were to vote the other way, the pro-life way, on those two issues.
So [what did O'Connor say] in those two cases?
O'Connor voted to strike down the partial-birth abortion ban that came out of Nebraska. She presumably would have done so in the federal law, which is what is now going to be coming before the Court. She also voted both ways in parental notification cases. Basically, if a parental notification case came before the Supreme Court, O'Connor's vote decided the outcome while she was on the Court, and presumably her successor will have that same power. …
Tell me, why is the pro-choice movement so focused on Roe?
The reason why the pro-choice groups talk so much about Roe v. Wade and put out the spin that Roe v. Wade is in jeopardy is that Roe v. Wade is the only thing that gets the large body of pro-choice Americans really upset when they're going to lose it. We've had all along since Roe v. Wade all kinds of abortion restrictions short of Roe, and we had those going all the way up to 1989, when the Supreme Court finally implicitly put Roe v. Wade in jeopardy and welcomed the states to try to ban abortions. And suddenly, when Americans thought that Roe v. Wade itself was in jeopardy, they turned out to vote on the pro-choice side for the first time ever. Pro-choice groups would love to go back to that circumstance, when they had a scared public on their side.
… [Pro-choice people] have said to me, "We would really love is to have Roe v. Wade looked at again." At first that seemed counterintuitive. Can you explain that as a strategy?
The sad truth about the whole history of abortion politics is that you only start winning when you've been losing, and losing really badly, and that's because your side doesn't get worked up, doesn't come out to vote, doesn't mobilize, doesn't give money until they're afraid.
What's happened to pro-choice groups is that ever since Planned Parenthood [of Southeastern Pennsylvania] v. Casey in 1992, people got the impression that abortion was safe; Roe v. Wade was safe. All the pro-choice people went home. They stopped sending checks; they stopped voting on the issue. And the pro-choice groups started to lose money, started to lose support, and they started to lose political offices. They would like to get back a mobilized constituency. They'd like to get it back without losing, but they look at history, and they see that losing is the path to winning. …
Tell me about the cases that are coming [before the Supreme Court] in the next session.
The cases that are coming before the Court in this term and possibly next term are parental notification and partial-birth abortion. These are losing issues for the pro-choice side. They're losing issues politically. They're losing issues in the polls, in Congress, in the statehouses and among judges generally.
The one way in which it can become a winning issue for them is they have found a line they can draw that in the polls, at least, the public tends to take the pro-choice side, and that is a health exception. We'll have the parental notification law, but there will be an exception if the lack of an abortion might threaten the minor's health.
We'll have a partial-birth abortion ban, but there will be an exception for late-term abortions in which the woman's health is at stake. And on those questions, polls indicate that while Americans generally support the laws, they want the health exception as well. So it's possible that the pro-choicers will win those cases and that politics will be a factor in that. …
With the New Hampshire case, they don't have a health exception. That is what the pro-choicers have been telling me is so alarming to them. With John Roberts coming onto the bench, that could set forth a whole new way of looking at abortion rights as regards the health exception.
It's true that the pro-choicers could lose on the health exception question in the parental notification case that's now before the Supreme Court. It's true they could also lose on that question in the partial-birth abortion case. But we're dealing with such a tiny minority of abortions. It's sort of an illustration of how small the gains have become for pro-lifers that that's what we're fighting about. They can't overturn Roe v. Wade. They haven't overturned it. …
God bless the Republican Party if pro-lifers are telling themselves that. I mean, there's so many problems with the health exception spin. There's a judicial bypass in the New Hampshire law. There's a judicial bypass in every constitutionally upheld parental notification law.
The Supreme Court has already required that. As long as a judicial bypass is required, there is a de facto health exception. The judge can look at the circumstances and decide that the abortion can go through. There is an immediate question, I suppose, in the case of an emergency health problem where you don't have time to wait for a judge.
I'd be very surprised if the legal system didn't move pretty expeditiously in those cases. That's what the bypass is designed to do, and it's been tested over the years. So I don't think the stakes are as big as some of the pro-choice groups think it is in terms of losing the health exception.
You're talking about the real-world consequences of the health exception. I don't know the numbers on how many are affected, but you know the claim from right-to-life groups all along has been that every health exception beginning with Doe v. Bolton, the companion case to Roe v. Wade, has been just an enormous loophole where health was used as a loophole for anything.
The woman would come in. As the pro-lifers put it, the woman would be really bummed out that she couldn't have the abortion. That would be classified as potential depression. And that actually did happen in some cases, and that was the exception.
Before Roe v. Wade, when abortion was technically illegal, states had health exceptions, and they were used as wide-open loopholes. I think the pro-lifers have a pretty good case against a health exception being a general loophole. I'm not sure whether in the future, if that loophole is struck down, we'll come up with a narrower idea, a narrower way of ferreting cases in which health really is at stake. It might be through the judicial bypass. …
The ban on partial-birth abortion has been struck down and is said now to be unconstitutional … because it didn't have a health exception. If the New Hampshire case comes through and they're allowed to create a ruling that includes a health exception, does that then [have ramifications for the partial-birth abortion decision]?
I don't actually think that the health exception that's being debated in the parental notification case, the New Hampshire case [Ayotte v. Planned Parenthood of Northern New England] that's now before the Supreme Court, is so crucial. The exception that's been debated most in the parental notification case is judicial bypass. If you have an extenuating circumstance like a health circumstance, as a teenage girl you can go to a judge who then says you don't have to notify your parents because of some situation particular to you.
The health exception has been crucial in the other issue that's going to be coming before the Supreme Court, and that is partial-birth abortion. Just this summer, a federal appeals court struck down the federal partial-birth abortion ban, and in so doing, it said explicitly in its ruling, "Because the act does not contain a health exception, it is unconstitutional." Period. OK. So pro-lifers could go back and put in a health exception, or they could do what they've tried to do, which is to gamble that there will be a change on the Supreme Court and that the new justice won't care about the health exception. So we might find out in the parental notification case that [Chief Justice] John Roberts doesn't care about the health exception, in which case perhaps he will uphold the federal partial-birth abortion ban as is.
Editor's Note: On Jan. 18, 2006, the Supreme Court issued its ruling in the case of Ayotte v. Planned Parenthood of Northern New England and found unanimously that a lower court was wrong to strike down a New Hampshire abortion law requiring parental notice and a 48-hour waiting period before a minor could obtain an abortion because did not provide an exception if the girl's health was in danger. In its ruling, the Supreme Court agreed with the lower court that the law needed such a health exception, but it disagreed that nullifying the entire law was the best solution.
Let's just talk about the partial-birth abortion ban. Tell me about how that was argued in Congress. What does that mean? What is a partial-birth abortion?
Partial-birth abortion was basically an invention of the pro-life movement in the early 1990s. Now, they didn't invent the procedure; a doctor did, but he didn't call it partial-birth abortion. The pro-lifers heard about this procedure, and they said, "My God, this is so disgusting. I bet we can get public opinion behind us on this," because they needed to move the debate to the later states of pregnancy, when the fetus looks most like a child and the public is most on their side. So they basically created this concept of partial-birth abortion which has been debated in courts for years, and the courts keep saying, "We're not clear exactly what this procedure is and how it differs from other procedures."
So it's mostly a politically defined procedure … that serves a political purpose of giving pro-life politicians and some pro-choice politicians an abortion restriction that they can support that's popular and still call themselves, in the case of pro-choicers, pro-choice. …
Can you tell me what a partial-birth abortion is? … What is that procedure?
The defining characteristic of a partial-birth abortion comes from the term "partial birth" -- that you deliver the fetus partially before you kill it, not to be too blunt about it. The reason why it's called partial-birth abortion is the idea that you deliver the fetus; you partially deliver it. It is partially born in the terminology of the pro-life movement before it is killed. … Now, in reality, it's a grossly premature delivery. You wouldn't be delivering the fetus at this stage if you intended to keep it alive.
But that sequence -- the removal, the partial removal and then the killing -- sort of gives the impression that it's infanticide. And some pro-choice politicians and a lot of people in the middle of the political spectrum have been willing to support a ban on partial-birth abortion rather than a ban on abortion in general because they think this is a different thing. It's more like infanticide ….
The pro-lifers make two points about partial-birth abortion: Number one, we should ban it because it's really disgusting; number two, we're just going to ban this particular procedure, not abortions generally, not even late-term abortions generally. There's a contradiction between these two messages, because the alternative to a partial-birth abortion at a late stage of pregnancy is basically to kill the fetus first and then remove it, rather than partially remove it and then kill it, which generally involves tearing it apart, not to be too blunt about it.
So it's disgusting any way you look at it. And in fact, when that case came before the Supreme Court in 2000, the partial-birth abortion case out of Nebraska, two justices -- Ruth Bader Ginsburg and John Paul Stevens -- pointed out that if disgustingness was going to be the criterion for banning abortions, it made no sense to single out this procedure. And so I think pro-choicers have a good argument that if we're going to start banning abortion procedures because they are unpleasant to talk about or disgusting, we are not going to stop with partial-birth abortion. And in fact, pro-lifers will be back for another procedure and another procedure starting at the end of pregnancy and moving back towards the beginning. …
That's sort of why the partial-birth abortion is important, it's that it's not just about that one procedure potentially it could be about more than just that …
Yeah, yeah. I mean, the pro-lifers call it partial-birth abortion; pro-choicers call it late-term abortion, partly because they don't want to concede that it's a birth -- and they're right about that -- but partly because they want to get people alarmed that there's going to be a general process now of trying to ban late-term abortions, all late-term abortions, and then mid-term abortions and then moving forward in pregnancy. And that is pretty much implicitly if not explicitly the strategy of the pro-life movement. They want to take it one piece, one procedure at a time. The pro-choicers are right about that. …
So back to my New Hampshire question. Right now [the] partial-birth [abortion ban] is deemed unconstitutional. Couldn't the health exception in the New Hampshire case change all that? And then we would have something like partial-birth abortion bans across the country.
If the Supreme Court in the parental notification case that's now before it rules that a health exception is not necessary in that context, conceivably the Court would then conclude that a health exception is not necessary in the case of the federal partial-birth abortion ban. And as the courts have already made clear, that is the sole complaint that is holding courts back from upholding that ban as constitutional. My guess is that if the pro-choicers lose the health exception in the context of parental notification, you can pretty much look forward to the federal partial-birth abortion ban being upheld as constitutional by the future Supreme Court. …
Will that be a big win for pro-lifers?
If the Supreme Court were to uphold the partial-birth abortion ban, pro-lifers would celebrate, because it would be the first thing that they've won in the Supreme Court for years and years and years. So they have a big celebration, and the next thing they do was introduce their next piece of legislation in Congress or wherever, in the states perhaps, about the next procedure that's equally disgusting, that should be banned. And maybe they'd get that passed through Congress. Maybe the president would sign it. Maybe the Supreme Court would uphold it. And then they'd go onto another procedure.
But this process would basically continue until the public decided that we had moved a little too far from the end of pregnancy, from these procedures that everyone thinks are very rare and disgusting to earlier in pregnancy to procedures that are much more common. That begins to feel like there's something that you can imagine your family needing, where the Supreme Court or Congress would start to begin invading your privacy and threatening your right to have just your regular old abortion. And so gradually pro-lifers would win and win and win until they alarmed enough people that the public turned against them, and they would begin to lose at that point. …
[What was the Supreme Court's ruling in Webster?]
In 1989, in Webster v. Reproductive Health Services, the Supreme Court basically said, "Open season," you know? It said: "Come on, governors, legislators. Pass whatever abortion laws you want, and we'll look at them each and decide whether we want to uphold them."...
So the years after Webster v. Reproductive Health Services were just pandemonium, and abortion was the pivotal issue in a whole bunch of state elections. It had never been that way before. And there was a huge backlash from the voters saying, "We don't want these abortion restrictions to go too far." That had never happened before, so that by the time we got to 1992 and the Casey case was before the Court, the justices were looking around in a completely different political environment. And there had been no evidence in 1989 that this country was adamantly pro-choice. But by 1992 there were pretty good signs that the public did not want abortion to be banned generally. That may have bolstered the spine of a couple of justices who weren't sure how they were going to vote. So that may have contributed to the fact that in Casey, the Court upheld Roe v. Wade, reaffirmed it and said that it would remain the law of the land. …
[What was the effect of the Casey decision?]
I think the reason why pro-lifers moved towards state legislation after the Casey decision was not Casey itself, but because the Casey decision happened in 1992, the same year in which voters elected a Democratic president, Democratic Congress. It was a very inhospitable environment if you were trying to pass pro-life legislation in Congress, so naturally you would move out to the state level.
What Casey did was that it clarified the standard that would be used to review abortion laws, and that is, it said the old, very strict interpretation of Roe v. Wade is out the window. We're not going to be that liberal anymore. Now we're going to use Justice O'Connor's standard, the "undue burden" standard. Well, people said, "My goodness, what is an undue burden?" It was quite vague.
And so I think a lot of pro-lifers started to pass legislation to test how courts would interpret that: "What exactly is an undue burden? Let's pass this bill. Is that undue? Let's pass that bill. Is that undue?" And let's see where the courts draw the line.
[Justice Antonin] Scalia was right about the undue burden. It's what happens when courts try to legislate. They drew a line. They called it the undue burden. On Tuesday they said it meant this; on Wednesday they said it meant that. They don't know. I guess over time, when you have a vague standard like that, the Court just revisits it, and they judge five or six cases, five or six issues, and in the course of doing that, they clarify what it means. But it's awfully Talmudic. …
The subtitle of your book is How Conservatives Have Won the Abortion War… What is your argument?
In the late 1980s, the pro-choicers saw that they were starting to lose the Supreme Court. Ronald Reagan had three appointments to the Court. Clearly pro-choicers were going to have to go back and fight these battles in the political arena instead of in courtrooms, and they were not used to that. So they were going to have to figure out a message that reached out to a broad segment of the public, enough to win an election. There were not enough liberals and feminists to win elections in most of the country. There still aren't.
So you have to figure out how are you going to talk about this issue from a pro-choice standpoint in a way that brings more people in. And what they learned through polling and focus groups and advertising was that if you reframed abortion from a women's rights issue to an anti-government, pro-family issue, you get a lot of public support. So what they started to say was abortion should be an issue between a woman, her family and her doctor. You have a whole bunch of authority figures in there; the government should not be involved.
And that brought in a whole lot of people who thought of themselves as conservative, but what they meant was what Ronald Reagan meant, which was they're pro-family and they're anti-government. And suddenly these people started to look at abortion restrictions as anti-family, pro-government. The government is coming in and telling my family what we can do.
What did the pro-life movement do?
There was a downside to this pro-family, anti-government message, which was the pro-lifers looked at this and said: "Heck! If you pro-choicers are going to sell abortion rights as pro-family and anti-government, we're going to take those messages and use them to pass a whole new series of laws." So they started to pass a whole bunch of parental notification and consent laws.
They said these were pro-family laws. You don't have to be for banning abortion; you just believe the family should decide, right? That's why you're pro-choice. That's why you should support the parental consent law.
And then they said: "You're anti-government. Well, we're against public funding of abortions." And they passed a whole bunch of laws to restrict public funding. You're against government intervention? Why should the government tell you that you have to pay for somebody else's abortion? So these themes all came back to bite the pro-choice movement in the long term. …
Take me to the present. You've written about the fact that President Bush, Sen. Rick Santorum, all these folks they never actually really talk about overturning Roe, but they talk about all these regulations. Are they … using these different ideas to promote restrictions around abortion but not really overturn it because that would alienate the moderate conservative base? …
There's a difference between pro-lifers and Republicans. Pro-lifers would like to overturn Roe v. Wade tomorrow. They're trying to save unborn babies, from their point of view. Republicans are trying to get elected. They have to worry about the political consequences of winning a fight today that may cost them a bigger battle down the road.
Republican politicians are trying to walk with pro-lifers down the road of banning abortions, but they're trying not to step on the big landmine, which is Roe v. Wade and the idea that abortion will be banned generally, specifically the right to privacy. There are some politicians like [Penn.] Sen. Rick Santorum who are open about not believing in a right to privacy.
Now, this is complete heresy to the American public. This is the essence of their sort of conservative, anti-government spirit of this country. So Republican politicians generally know not to touch this, not to ever suggest that they're threatening privacy or Roe v. Wade, and to try to pick popular abortion restrictions that don't seem to impinge on that right directly.
Tell me about President Bush, and how he walks this fine line.
George W. Bush got elected using a particular maneuver that I called the Texas Three-Step. And he still does this dance as president because it was so effective for him in the election. And it consists of, first of all, a nod to the pro-lifers. You say, "I'm a pro-life person; I believe that the platform of the Republican Party should be pro-life."
You give a principled statement that you believe that abortion is wrong and you're pro-life. You then wink to the pro-choicers and say, "But you know, even though I believe that, I know this country isn't ready for it." And Bush uses formulations. He says, "The culture isn't ready to ban abortions."
Then, having reassured the pro-choicers that you're not actually going to take anything away from them, so now you've got the votes of the pro-lifers, and you haven't lost the votes of the pro-choicers. Now Bush says, "Here are the abortion restrictions I would support." And then he names, consistently, parental notification and partial-birth abortion.
My goodness, you can't find two more popular restrictions in this country. Why does Bush name them? Because they're popular. When Bush says he will go only as far as the culture of life allows, what he means is polls. "Culture" is Bush's word for polls. It means that the polls support a ban on partial-birth abortion. The polls support parental notification laws, and therefore he and other Republican politicians will openly campaign for those restrictions. …
[Talk about the shift towards thinking about the rights of the fetus.]
In Roe v. Wade, we had a conflict between two rights: the right of the fetus to live and the right of the woman over her own body. And those rights were in conflict. You had to choose one or the other, and the Court chose the rights of the woman. Recently pro-lifers started to wonder, what if they aren't in conflict? Can we establish rights for the fetus? Since after all, that's their concern. These people, generally they're not anti-woman; they're not anti-autonomy. They're for defending the fetus. Is there a way we can save the lives of fetuses of unborn babies in a context other than abortion? Can we establish a legal precedent that they have some value?
And of course, down the road, pro-lifers would like to uphold that over and against the rights of the woman, which is what pro-choicers fear and say might happen. …
When Congress was debating the Unborn Victims of Violence Act ["Laci and Conner's Law"], pro-lifers assured pro-choice senators and representatives and pro-choice citizens that you didn't have to believe in banning abortions generally in order to support this legislation, which established fetal rights. [They] said, "If you attack a woman and injure her fetus, you will be punished as though you had inflicted that injury on the woman herself." Well, that sort of suggests that the fetus is a person, doesn't it? But it didn't explicitly say that, and pro-choicers feared that legislation would lead to restrictions on abortion.
What we're going to face in the next few years, that legislation having been passed and [en]acted, is a series of legal cases deciding whether we can treat a fetus as a person in one context when the woman is assaulted and the fetus is attacked against her will, but where the fetus is not a person if she's the person who decides to kill it, essentially. I don't know where that will lead. …
I think pro-choicers have made a terrible strategic and moral mistake by not clarifying how we can value a fetus and how you can be punished for attacking a woman and injuring her fetus specifically short of declaring the fetus to be a person. They've in a sense forced a choice between an absolutist position that the fetus means nothing and the pro-life position that the fetus is a person. They may well lose that fight, and if that happens, and the courts decide and the public decides, "If we have to choose, then the fetus is a person," well, then my goodness, I think abortion rights will be in jeopardy because the public will decide you can't abort a person. …
Is that the pro-life side's strategy? … What do you make of [it]
The strategy of passing all these laws to uphold and establish fetal rights to honor the value of the baby in contexts other than abortion is a stealth strategy by the pro-lifers. It's a very clever way eventually of getting back to the abortion context and saying: "OK, Mr. and Mrs. America, you said that the fetus had value. You said that if a man killed a fetus in his wife's womb that that was a murder. Are you now willing to say that the woman having an abortion of that fetus is murder?"
I think ultimately, however, they'll lose that fight. There is a reason why they ducked that fight to begin with, and that is that the courts and the public decided that if it came down to a choice between honoring the value of the fetus and taking away the rights of the woman and the family, they were not going to take away those rights, and the fetus was going to lose that fight. The fetus lost that fight in Roe v. Wade. It lost that fight after 1989 when this became a big political issue, and I think if it comes back to the Supreme Court or the political arena again, they will lose that fight again. …
Tell me … [about] NARAL [Pro-Choice America], how they're trying to re-frame their language, take back the word responsibility, take back these ideas about values, and how you're worried it may backfire on them again.
What's happening now is that there's a movement in the Democratic Party and among some pro-choice groups to reclaim the morality of the abortion issue, to acknowledge that even if we think that abortion should be legally available, it's morally problematic, and we need to work on that, and we need to reduce the number of abortions through pro-choice means. I think this is a very smart strategy.
Very smart, just like the strategy that was used in the late 1980s about pro-family and anti-government. The problem is the same exact thing could happen to the pro-choicers -- that is, they come up with this message; it's very effective at attracting a lot of people to the movement who are anti-abortion but pro-choice, and then gradually pro-lifers figure out: "Wait a minute. You talk about, for example, in the case of NARAL Pro-Choice America, a culture of freedom and responsibility. Well, Americans support that, but maybe they would like the freedom of choice that's used in abortion to be done responsibly."
So, for example, you should have to have informed consent; you should have to go through a 24-hour or 48-hour waiting period; you should have to inform your parents if you're underage. They can include previous laws and group new laws under this theme of responsibility, which is what they've done with previous pro-choice themes when they wanted to turn the rhetoric of the abortion rights movement against them. …
Tell me about the public in all this.
The public remains basically disengaged. The fundamental equation of this issue is that when very few people are paying attention, they are almost all pro-life people. They're the ones who care intensely about this issue who will vote this issue in every election. They're the ones who will notice all the legislation that's going on. They get the e-mail newsletters. The pro-choice people, there are fewer of them who care to that extent. Pro-choicers benefit when the public really starts paying attention and feels like abortion in general is threatened.
The more attention the issue gets, and specifically the more it draws toward the broader idea of regulating abortion in general and restricting the right to abortion, the more pro-choice people start to come out, pay attention and vote the issue. Every poll I've seen shows that broadening the number of people who pay attention to this issue who care about it makes the pro-choice side gain in balance to the pro-life side. …
So is the whole point with these smaller regulation that nobody's paying attention on the [pro-choice] side?
Every bill that's been brought up in Congress, a high-profile bill [where] the pro-lifers knew that the general public would pay attention, has been very carefully poll-tested. They're all the popular issues. Partial-birth abortion, Unborn Victims bill, all of that stuff is very popular.
They have not brought up anything at the federal level that they thought might backfire on them if the public found out. At the state level it's a little bit easier to try out laws that might be a little bit more unpopular because the public isn't paying attention. If there's a clinic regulation debate in some Southern state, the rest of the country may just not know about it, and so you can get away with a legislation that you would like to pass that would be politically unwise for you to do at the federal level. …
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