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State battles over abortion policy anticipate a post-Roe world

Proposed legislation in Virginia that would loosen restrictions on third trimester abortions has sparked outrage among conservatives. Many pro-choice advocates expect the Supreme Court to scale back abortion rights, and states favorable to abortion are preparing. Lisa Desjardins talks to Mary Ziegler, a law professor at Florida State University and author of several books on abortion politics.

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  • Judy Woodruff:

    But first: Proposed legislation in the Virginia House of Delegates has sparked outrage among conservatives nationwide.

    The bill, sponsored by a Democratic lawmaker, would loosen restrictions on third trimester abortions. And a warning: This story contains mature content that may be uncomfortable for some to hear.

    Lisa Desjardins reports.

  • Kathy Tran, D-Va.:

    I'm changing the standard, yes.

  • Lisa Desjardins:

    This one-minute exchange with Virginia Delegate Kathy Tran defending her proposed legislation sparked a firestorm Wednesday.

  • Todd Gilbert, R-Va.:

    How late in the third trimester could a physician perform an abortion if he indicated it would impair the mental health of the — of the woman?

  • Kathy Tran, D-Va.:

    Or physical health.

  • Todd Gilbert, R-Va.:

    OK.

  • Kathy Tran, D-Va.:

    OK.

  • Todd Gilbert, R-Va.:

    I'm talking about the mental health.

  • Kathy Tran, D-Va.:

    So I mean, through the third trimester. The third trimester goes all the way up to 40 weeks.

  • Todd Gilbert, R-Va.:

    OK, but to the end of the third trimester?

  • Kathy Tran, D-Va.:

    Yes, I don't think we have a limit in the bill.

  • Todd Gilbert, R-Va.:

    Where it's obvious that a woman is about to give birth, would that still be a point at which she could request an abortion if she was so certified?

  • Kathy Tran, D-Va.:

    Mr. Chairman, that would be a — you know, a decision that the doctor, the physician and the woman…

    (CROSSTALK)

  • Todd Gilbert, R-Va.:

    I understand that. I'm asking if your bill allows that.

  • Kathy Tran, D-Va.:

    My bill would allow that, yes.

  • Lisa Desjardins:

    The bill has since been tabled.

    But President Trump reacted to Tran's comments in an interview with The Daily Caller, asserting Democrats want to "rip babies from wombs" and "It's terrible."

    But in a radio interview, Virginia Governor Ralph Northam, a Democrat, refuted that, saying this was for rare circumstances.

  • Gov. Ralph Northam, D-Va.:

    When we talk about third trimester abortions — and it's done in cases where there may be severe deformities, there may be a fetus that's non-viable. So in this particular example, if a mother's in labor, I can tell you exactly what would happen.

    The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated, if that's what the mother and the family desired. And then a discussion would ensue between the physicians and the mother.

  • Lisa Desjardins:

    National conservatives focused on his last two sentences about resuscitation, and reaction was swift.

    Senator Marco Rubio equated it to openly supporting legal infanticide.

    All this underscores abortion battles pushed by both parties in dozens of states, including New York, which just passed a law to ease abortion restrictions, including in the third trimester.

    Today, Governor Northam said he regretted that his comments had been — quote — "mischaracterized."

    To pick up the conversation from there, I'm joined via Skype by Mary Ziegler. She's a law professor at Florida State University and the author of several books on abortion politics, including "After Roe: The Lost History of the Abortion Debate."

    So, Mary, let's start with this moment right now and what we're seeing in those two states, Democrat-led efforts to broaden out the category, the health of the woman who could be allowed for a third trimester abortion.

    Can you help us understand, how many abortions could that effect, in theory, and what are these lawmakers trying to do?

  • Mary Ziegler:

    Well, the number of abortions affected, especially by the expansion of late-term abortions, would be quite small.

    So the vast majority of abortions in this country happen in the first trimester. I think what legislators are trying to do, in many ways, is to prepare for a post-Roe v. Wade landscape. So it's widely expected that the Supreme Court is going to substantially scale back on abortion rights, if not overturn Roe altogether.

    And, prototypically, blue pro-choice states are making sure that policy in those states is welcoming to women in a post-Roe world.

  • Lisa Desjardins:

    Just to help some of our viewers, a reminder that, when we're talking about the third trimester of pregnancy, we're talking 26 weeks into the pregnancy.

    Can you take us through the science on this?

  • Mary Ziegler:

    Well, third trimester abortions are complicated.

    I think the dispute is really about why they're often performed. So abortion rights groups claim, for the most part, that when women have later-term abortions, it's either in cases in which a child has a condition incompatible with life, or in which a woman's own health will be substantially impacted if a pregnancy is carried to term.

    Anti-abortion groups that are skeptical of this claim that many abortion providers would be willing to perform procedures for really any reason at any point in pregnancy.

    So, I think the science is disputed, but so, too, really are who is performing these procedures on the ground and why. And we don't have enough data on that to really answer it in a definitive way.

  • Lisa Desjardins:

    As the left is trying to expand abortion rights in many of these states, this comes after many years of the right trying to restrict abortion rights in many states.

    And they also point to science. They talk about, when is a fetus not just viable, but conscious? When is it conscious of pain, for example?

    Can you talk about the science on that end and what we know about human life and its beginnings?

  • Mary Ziegler:

    Sure.

    I think part of the challenge is that some of these questions are only partly scientific. So there's not much disagreement, for example, about when from a genetic standpoint a human life begins. But what that means from a legal or philosophical standpoint remains pretty contested.

    When it comes to fetal pain, it's a more straightforward question of when pain is possible, but there the challenge is that pro-life groups and pro-choice groups don't necessarily trust the same sources to answer the question.

    So pro-choice groups, or abortion rights groups, have emphasized the American College of Obstetricians and Gynecologists and medical authorities in the U.K. have found that fetal pain isn't possible as early in pregnancy as many statutes would provide, in banning abortion at the 20th week.

    And anti-abortion groups respond that those groups simply are putting political correctness ahead of the truth and that many of them, in fact, are dominated by pro-choice obstetricians.

    So it's difficult, I think, in many of these cases to find a common set of facts that everyone in the abortion debate can agree on, much less what those facts should mean in terms of the constitutionality or morality of abortion.

  • Lisa Desjardins:

    So where does this moment fit in how you see the abortion debate? Are we now in for kind of the next run of very heated, difficult battles over this? Or where are we?

  • Mary Ziegler:

    In some ways, I think we're in a very unpredictable moment.

    So it seems that most commentators, including me, think that the Supreme Court is going to undermine abortion rights. But what happens next, I think, is sort of a brave new world, because, for so long, the fight on both sides has really been about preserving Roe or undoing Roe.

    And so, if Roe is no longer the law, I think you are going to see a lot more unpredictability in terms of whether states will ban abortion, what they will mean when they ban abortion. Does that include, for example, IUDs?

    Will blue states go further than we have seen before in protecting abortion, maybe in funding abortion? I think we don't know really what this future will hold, much beyond the probability that the court will, in fact, transform abortion law and undo Roe.

  • Lisa Desjardins:

    Mary Ziegler, Florida State University, thank you for joining us.

  • Mary Ziegler:

    Thank you for having me.

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