(upbeat music) - [Announcer] This program is made possible through support from Bloomsburg University.

(serene music) From the WVIA Studios, Bloomsburg University at WVIA present, Conversations for the Common Good.

Civil Discourse, Civic Engagement.

The Dobbs Decision.

Women's Rights, Law, and Healthcare in America.

A community conversation.

- Hi, I'm Larry Vojtko coming to you from the Sordoni Theater in the studios of WVIA.

And welcome to the latest edition of Conversations for the Common Good.

The Dobbs Decision, Women's Rights, Law, and Healthcare in America, a community conversation.

On June 24th, 2022, the US Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization overturning the decisions of Roe v. Wade in 1973 and Planned Parenthood versus Casey in 1992.

The ruling in Dobbs dismantled 50 years of precedent that found the right to abortion was protected under the Constitution of the United States.

In the immediate aftermath of the decision, states have rushed to eliminate abortion access, and the legal landscape has been chaotic with the status of abortion rights changing daily.

The situation is rapidly evolving, but at the time of this writing, abortion is banned from the point of conception with extremely limited exceptions in a total of 13 states.

Well, let's meet our panel of special guests who are here to add perspective to the conversation.

Dahlia Lithwick, the author of "Lady Justice, Women, the Law, and the Battle To Save America."

Ms. Lithwick is a columnist in senior editor at Slate and the creator of a podcast called Amicus.

Orlando Valle, Jr., MD, is a Geisinger Medical Center OB-GYN specialist.

Valle was a resident at the Johns Hopkins University Medical Center and is now leading Geisinger's efforts to become a Ryan's Center of Excellence in promoting education in family planning.

Willow Eby-Fisher, RN.

Ms. Eby-Fisher has been an activist in promoting reproductive healthcare for decades, mainly in Wichita, Kansas, both as a clinic defense coordinator and as a registered nurse.

And welcome to those of you joining us on our video stream.

If you have a question for our panelist, visit wvia.org or email info wvia.org.

Submit your questions at wvia.org/conversations or on a social media platform using the hashtag #wviaconversations.

And just a reminder that following this conversation, you can view the program on demand at wvia.org/conversations.

Well, let's get into the conversation now, and the the first question I'll place to you, Ms. Lithwick, and that is give us a little background.

On what basis did the court, the majority of the court last year, what basis, what reasoning did they give to overturn the Roe v. Wade decision that was made in 1973?

- Well first of all, thank you so much for including me.

It's an honor to be with this panel.

And I think the simple answer is probably just that Justice Alito, in his majority opinion says Roe was wrong when it was decided in 1973, and it's wrong today.

In other words, we're not really overturning precedent because this was wrongly decided.

I think what he says in addition is that the mode of interpretation that is gonna be applied to determine whether something is a constitutional right is whether it was found in the Constitution at the founding.

And he says, obviously, the word abortion is nowhere found in the Constitution.

And if I go back, he says, and look at the law of the land in various jurisdictions at the time of the founding, it's not clear that abortion was protected.

And then he sort of slightly cherry picks to find a conclusion that says it was in fact criminalized throughout much of the country.

Therefore, it's simple in his view.

If it didn't exist then, it didn't exist now.

And if women, he says, who are not without electoral power want to change that they can go and do it at the ballot box.

The other piece of the opinion that's really important is that he essentially argues, and he has four other justices agreeing with him, really that this has caused such distress and fomented such chaos throughout the land.

If we kick it back to the states and let the states decide this, we will live in a time of peace and tranquility and there will be no more anxiety around abortion.

As I think we're about to find out in this conversation, that probably was not correct.

- Alright, so the, what I hear is that the Roe v. Wade decision in '73 was wrongly decided, as I understand, that decision was based on perceived or implied right to privacy in the Constitution.

Is that correct, Ms. Lithwick?

- That's correct, but it's probably fair to say that when we think about it, there's a kind of cartoonish story we tell, which is, look, you know, the court sort of invented out of whole cloth in the sixties and seventies, some kind of ephemeral, the word used in the constitutional doctrinal conversation is in the penumbras of the Constitution, this vague idea about family privacy and bodily autonomy.

It's not quite that silly.

In some sense, there's a long line of cases that goes back to Griswold versus Connecticut, the right to use birth control within marriage, Loving versus Virginia, the right to marry somebody of a different race.

So these cases go way back before Roe.

And it wasn't just intended to protect privacy, it was intended to protect, and these are don't forget, the reconstruction amendments that happened after enslaved people are free to protect former slaves from having their bodies used to create chattel slavery to protect former slaves whose children were not, their children, whose marriages were not seen as valid.

So it was really a whole bucket of rights that were meant to confer upon formerly enslaved people the rights to control and manage who was in their family, how their children were raised.

That's not an invented right that comes up in 1973.

That goes all the way back to the core values that the radical abolitionists who wrote the reconstruction amendments were trying to put into the Constitution.

- So the practical, the practical result of that decision, of the Dobbs decision last year throws this question.

It doesn't, it doesn't prevent, or you know, abortion, doesn't say abortion is out of the question.

It's unconstitutional.

What it does is it throws the question back to the states.

Correct?

- That's exactly correct.

And you're exactly correct that we are probably looking at, in the coming years, about half the states will make it unlawful, whether it's at 15 weeks, eight weeks, you know, at conception, we're seeing it kind of checkerboard around the land.

And then about half the states will say no abortion is protected.

So what we have now, you used the word chaos in your introduction.

What we have now is a situation in which people are going to have to, you know, go from state to state where the laws are different.

And I think it's probably also worth saying we are right in this moment looking at efforts to create a national ban and a lawsuit in Texas that would actually ban medication abortion nationally.

So even though there's a kind of patina of, this goes back to the states, this is a sort of win for federalism and states rights.

There is juggernaut move afoot to actually wipe it out around the country.

- And I wanted to get back to the federal versus, or the national versus states in just a bit.

But we have a question in from of the viewer, and it's first directed to you, Ms. Lithwick, but asking all of the panelists to comment, "Ms. Lithwick," says this viewer, "in the epilogue to your book, you noted that the Dobbs decision was the first time a major precedent was overturned in order to deny an existing freedom rather than to expand one."

That's a huge change according to this viewer.

Would all the panelists comment on this matter?

So first, Ms. Lithwick.

- Yeah, I mean this is, first of all, thank you to the questioner for reading the book.

I appreciate it.

And that was really an important inflection point for the court that we have certainly seen the court overturn precedent historically.

We've seen the court overturn, you know, Plessy versus Ferguson.

We've seen the court overturn the cases that banned same sex marriage and same sex intimacy.

We have certainly seen a long line of cases in which the Supreme Court has said in effect, times have changed, and we have to have a more capacious view of individual rights and liberty and dignity.

And so Dobbs becomes the first time that the court overturns a case that had conferred a broader swath of rights upon the public and says, in fact, we're going to take rights away.

And so it is, I think, a watershed moment.

If you think about the ways that liberty and the notions of equality and liberty are meant to evolve for the court to go back on itself and say, functionally now, soon to be in half of the country, women have fewer rights today than they had in 1973.

- Ms. Eby-Fisher, do you have a comment on that?

- Oh, mostly this is really terrifying women, especially young women, they're afraid to even keep a period tracker because they don't know if they'll need to go out of state.

And knowing that they might need to do that, they're being very secretive.

It's hard to just live their life comfortably as they have, because what they've always felt was protected that their body would never be threatened this way.

Suddenly they are.

And they grew up thinking, no, we're safe.

It's good.

It's the law of the land.

So it's a very big change.

- Dr. Valle, have you experienced in the last year this fear among some of your patients?

- You know, here in Pennsylvania, you know, it's not as restrictive as other states.

You know, a woman can get an abortion here up to 24 weeks gestation.

So here in PA with my patients, I haven't really experienced that fear coming from them, but there is an underlying anxiety that I sense from them that they really wanna rush to get this in because they don't know when the state is going to change their laws.

So I've had more patients come in saying, can I get this done really quickly, please, before it's too late?

And what this also has caused is anxiety amongst providers, especially in states where it's more restrictive, such as Texas, Mississippi, and those providers are really handcuffed because they wanna provide the best care for patients.

And abortion is part of women's healthcare, whether you're agreeing morally or not.

And it's really putting them in a bind because there's legal aspects to it that I can't speak to, but they have to be very careful with what they recommend for patients and how they go about providing that care without compromising themselves in the process.

- So Doctor, do you have a specific story you can share hearing from one of your colleagues in one of the states that has put more restrictions on abortion?

Can you share that with us?

- Absolutely.

I was in a conference meeting with some other providers from different states who are enacting Orion program.

An Orion program, basically it establishes an institution as a place where family planning services are available, not only for patients, but also for residency training.

And speaking with colleagues who work in Texas, they really have to go out their way to get their patients to a different state in order to obtain an abortion.

And not only that, they have to work with their residents, pay for them to go out of state just so they can get the training that they need in order to counsel the patient, in order to do the procedures that are involved with some abortion services.

And the stories that they tell me is that it's put a lot of extra work and a lot of extra strain on them that, you know, in my opinion, it shouldn't really be there in the first place.

We should be able to freely practice medicine ethically, morally, and most importantly, you know, in the best interest of the patient.

- Ms. Eby-Fisher.

- Yes.

- He's talking about women having to go out of state and it begs the question, what do women without the means to do that, I mean, we're talking about going out of state, so that means either, you know, getting in a car, which some people may not have cars, they don't have the means for that, or get a bus ticket or fly.

What do women do?

Or you know, have you, can you, do you have any stories that you can share about this being a real burden on women as they try to obtain the care they desire?

- Actually, I've dealt with that even where it was legal because women, low income women, often they don't have childcare to go.

If it's a later term abortion where it takes three days, they can't take the time off from work.

They can't take the time to recover.

They need extra support, not just to get there, a place to stay when they get there.

Possibly transportation, someone to take care of their children and an employer that is going to let them leave.

There are a number of groups and we dealt with some of them when I was working in the clinic that will help to finance that.

There are also people who will take a woman or a woman and her support person into their home for those, that time period and drives them there.

But they always have to know that there's that if.

I don't know how I'll do this, and sometimes you're scrambling to try and find a group that has money that they can help to pay for it, they can help them with those other expenses.

It's not just the cost of the procedure and the cost of travel.

They have a raft of things that they have to cover.

There are groups though that are doing it.

There are groups that are facilitating transportation and there have long time been groups that are bringing money to help to cover the cost.

Plus there are a number of clinics and doctors that will donate some of their services.

It doesn't mean that it's easy, but it means that there is some help out there.

It's just much more difficult now that people might have to go across state and the clinics that are talking to people that I've worked with who are in a clinic in Oklahoma, as soon as Texas started cracking down, they were trying to figure out how they had enough appointments for the women who could get across the border.

- Ms. Lithwick, we have a question in from social media that's directed to you and Lisa writes, "States' rights was used to justify slavery.

What other rights might we lose with a Dobbs decision?"

- It's such a good question and in some sense, you know, one of the reasons that we believe that the Supreme Court occasionally has to protect rights nationally is because, you know, the questioner is exactly right.

Brown v. Board determined that it's not up to the states to decide that separate but equal is okay.

And Obergefell, the marriage equality case determined that it was not up to the states to decide whether same-sex marriage was constitutional.

And so undergirding the question is this good point, which is fundamental rights are supposed to be fundamental across the land.

And on the second part of the question, and this is really deeply troubling, Justice Clarence Thomas and his concurrence in Dobbs lays out what else is on the chopping block.

He's quite explicit about it.

And he essentially says, let's just be really frank here, if this right to privacy, to bodily autonomy and family intimacy is in fact ephemeral and invented, the next things to go are, and then he lists them and it's things like, no surprise, same-sex marriage.

And it's things like, no surprise, interracial marriage and birth control.

And we are already seeing, and this is I think a point that we, you know, heard already today from the other two panelists, in some sense, the confusion is the point because around the country we're already seeing pharmacists unwilling to provide, say the morning after pill, not abortion, contraception, but claiming that this is kind of the slippery slope that we get into post Dobbs, that all those rights are now subject to question.

So there is some dispute around the country as to whether those things are on the chopping block and whether you will get five votes to end same-sex marriage equality.

But I think the principle is sound, which is if the foundational right to have privacy and dignity and autonomy within your family goes away, all those other things could go away as well.

- So I just wanna follow up on the decision, Judge Alito wrote the main decision.

You also mentioned that Clarence Thomas had a concurrence and there was another opinion that was released by Chief Justice Roberts, correct?

And if so, what was in there that differentiated it from the Alito opinion?

- So this was a really interesting legal moment because Chief Justice Roberts is avowedly anti-abortion.

And he is, in every other case, virtually voted to end Roe v. Wade.

But he didn't like the way the court did it, and I think he felt that an easier way to dispose of this case would've been to sign off on the Mississippi ban and to have the sort of notion of when viability happens and when the line is, when that marker is moved without in one fell swoop doing away with Roe v. Wade.

So I think what the Chief Justice was bothered by was, you know, A, the appearance that the court was willy-nilly reversing 50 years of precedent because the composition of the court had changed, but more urgently under his concurrence, and I think this really goes to this larger question of reversing precedent, is this anxiety about what happens to the public's opinion about the court when the court is just disposing of precedent left and right.

So I think what he would've done is pump the brakes and do this slowly, wait for a case to come up in five years to move the viability line closer and closer and closer to what opponents of abortion want without doing the sort of, hit the ball out of the park huge move of overturning Roe.

- I do wanna talk about the issue of viability in just a moment, but since the last question was on states' rights versus the national overarching rulings, I was interested in Judge Alito's opinion, how he concludes his opinion.

I'll just read that here.

"Abortion presents a profound moral question.

The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion.

Roe and Casey arrogated that authority.

The court overrules those decisions and returns that authority to the people and their elected representatives."

Now what caught my attention there, in one sentence, he talks about the states' rights and right at the end, to me it's a little bit more vague, returns the authority to the people and their elected representatives, which could be interpreted that it opens the door to the federal government, the legislature in US Congress to pass a law that would be nationwide.

Or am I reading too much into that?

- No, two things I think that you're pointing out that are both true.

One, you know, the very self same week that the court overturned Roe and said, we kick this back to the states, the court in a different case, Bruin, said, we're actually not going to let state legislatures decide on gun policy.

We're going to kind of create a marker for all second amendment rights nationally, take it away from the states, give it back to the court.

So there's a weird sense in which there's not even internal consistency about when we say kick it back to the States and when we say, oh no, this is in fact a federally protected right.

On the second piece of what you're saying, it is certainly true that there's nothing in the Dobbs decision that doesn't open the door for a federal ban.

And we are already seeing Lindsay Graham immediately offered up a federal ban.

And we are seeing, I think a strong move to have a sort of, you know, ban at conception that is federal.

So there's no question in my mind that this leaves the door open to actually take it away from the states and let Congress regulate it, but maybe more urgently and I think, again, this is the question that both of the other panelists have answered here today.

I think that there is such a deep sense of uncertainty around the country right now where, you know, you have boards of lawyers who are deciding, is this pregnant person now septic?

Are they in, you know, mortal fear of death in such a way that we can now move in and terminate a pregnancy?

And so the idea that we have somehow made this crisp, elegant, the way Justice Alito says, quite the opposite has happened nationwide.

All we have is this cloud of uncertainty that is paralyzing physicians around the country who can't give care to the best standard of care because they have to wait until their lawyer tells them what's legal and not legal in their state.

- Well, we have another question coming in from a viewer.

And Frida, she is really testing our knowledge, our historic knowledge of the Supreme Court and the Constitution, and she asked "If the Supreme Court's authority to determine whether something is constitutional goes back to Marbury versus Madison, could something ever change that?"

So I think first of all, we have to find out what Marbury versus Madison is.

- It's, Frida's right there in the Con Law 101, and I'll try to be brief, but Marbury versus Madison is the case in which the Supreme Court gives itself the power.

It is nowhere in the Constitution to declare laws constitutional and unconstitutional.

Up until Marbury v. Madison, it wasn't clear that the court had that power.

Marbury is, in effect, was the court saying, you know what?

This is a thing we get to do as a court.

We get to strike down law.

And it's not at all intuitive that that's what the framers wanted.

That is a power that the court conferred upon itself.

I think the answer to Frida's question is, could we take away the power of judicial review or judicial supremacy?

And the answer is yes.

There are proposals right now in the many proposals about reforming the court, including adding seats to the court, doing away with lifetime tenure.

There's a whole mess of proposals that would reform how the Supreme Court does business.

And one of the things that has been put on the table is this notion that the Supreme Court cannot be allowed to strike down laws or certainly declare laws unconstitutional.

Not every constitutionally created court around the world has that power.

And so there is a move to strip the court of the jurisdiction to strike down laws as unconstitutional.

- Let's go to this issue of viability and Dr. Valle, could you just explain what viability is and maybe take us a little bit through the history because that marker of when a fetus is viable has moved, it has moved back.

And just give us a little primer on viability.

- Yeah, so viability is basically when the fetus, when born can survive outside the womb, whether or not it requires additional assistance.

So the age of viability, that has moved throughout the course of time, you know, it used to be at one point 28 weeks gestation, which is about, you know, seven, eight months.

And that has slowly transitioned to now, it's dependent on your institution.

A lot of whether or not, you know, fetus is viable is also determined by the capacity of your NICU, if an institution has one.

So for most NICUs, they can handle a 24 week fetus when born.

For some institutions, that's a viable age for them.

Then you got very specialized institutions that deal with micro preemies and for them, their age of viability is 22 weeks.

So somewhere between 22 and 24 weeks seems to be the consensus on when the age of viability is.

But then there's a lot of other factors that go into it.

The fetus's weight, if there are any, you know, malformations present or not, and the conditions at which the fetus is gonna be delivered, whether it's urgent emergent or is it something controlled in certain circumstances.

So it's not quite like this hard line because there's so much more that goes into it and a lot of it has to do with the capacity of the institution that you're delivering.

- Ms. Eby-Fisher?

- Yes?

- What is your view on using viability as a marker in this discussion?

- Viability is a very legitimate marker.

It is not the norm for when a woman will be having an abortion.

That's a very unusual case, at least in my experience.

- So when, in your experience, when do most women have an abortion?

What, in what trimester, in what week?

What, when is that?

- Generally the first trimester, normally by 14 weeks.

We are talking as early as they find out they're pregnant or as early as they find out that there's an issue.

The ones that are 22, 24 weeks are very special circumstances and generally very difficult situations for the woman and her family.

It's the one that people like to focus on because they wanna think about that baby that they're holding.

But mostly you are dealing with the end of your thumb because women are coming in at six weeks and eight weeks on a regular basis.

That's where you'll find the bulk of your abortions.

- Right.

But by the time, and you said that in this conversation, there, we tend to kind of zero in on 24, 26 weeks, things of this sort.

By that time though, the parents have already, you know, they're already thinking about having that baby, the nursery is finished and things of that sort.

And so trying to make a decision at that time must be an agonizing sort of decision for the parents.

- It's very difficult and this comes not from having done it, but from talking to the people who have and who were in the process.

They're making a decision because they're pretty much presented with one, that there is a reason that this is not a viable pregnancy.

At one group of almost 30 people from New York City, Hasidic family, that all flew out to Kansas, where Dr. Tiller, before he was murdered, he did the late terms himself.

but there was no way that this fetus, that this could be a baby that they would have, a very much wanted baby.

And so they came out as a family to grieve and go through the religious burial in the timeframe that they were supposed to so that they could at least give the honor and care for this baby that they really, as a extended family wanted.

And certainly the parents were devastated.

And that tends to be the case that I've seen is there is a reason for not just the woman but the family, that this can't happen.

It can't be.

And so yes, there's a huge sense of loss and need.

They need the compassion and caring.

They need to grieve.

They're not there because they decided, you know, I've changed my mind.

I don't wanna have a baby today after all.

Uh-uh, it's very serious and very thought out and very sad.

- So there you're talking about not only the mother and father, but the extended family.

- [Willow] It's often extended family.

- The religious community that is important to them as well, that's involved in this whole experience that is tremendously heart-wrenching for them.

Dr. Valle, what are the, what reasons do you hear most often about why women come and need an abortion or want or desire an abortion?

- It's a big spectrum of why women want to make this decision.

For some women, it's just not the right time in their lives, whether it be financially or maybe they just had a baby or they're not in the right space psychologically to go ahead and have a child 'cause they're dealing with medical conditions that are, that the treatments are harmful to a pregnancy.

And then other reasons come in, and this is since practicing here, in where I practice in Pennsylvania, it's mostly due to fetal malformation.

So a devastating heart defect, or the baby's born, a baby could be born without a skull in what we call anencephaly.

And no matter the reason though, this is a very difficult decision for the patients that I've seen.

I have yet to get through counseling, and then even after, if we decide that's the best option for her, can, you know, it's hard to keep track of how many times like the patients either in tears because this is a decision they do not want to make.

And tears also from their support person, whether it be their spouse, their mother, uncle, aunt, whoever's with them.

And, you know, I think that's a very important thing to point out is the majority of women don't want to make this decision.

It's not made flippantly.

This is something that's hard pressed on their mind, on their heart, on their spirit.

And it's mostly in the setting of it's either I decide to do this or, you know, potentially deal with medical issues and other consequences that you can't recover from.

- So doctor, can you take us through the protocol?

The woman comes to you, it's a visit, she says, I really think I'm thinking about an abortion.

And from that point on, what is the protocol, the process you take them through?

- So here in the state of Pennsylvania, the law dictates that we give very specific type of counseling for their patients.

That counseling includes discussing continuing the pregnancy, discussing potential foster care or adoption services, also discussing that the father of the baby is financially responsible, whether or not he wants to be involved physically in the home, that there is statewide financial aid through medical assistance to help pay for the baby's food or, you know, other things that babies will need.

And there's also a 24 hour waiting period on top of that.

So I go through what an abortion entails because that's also required under Pennsylvania law that I go through in detail, the gestational age at which the abortion will happen and how the abortion's gonna happen.

And this is all state law that providers here in Pennsylvania are, you know, forced to do.

And we have a specific paperwork, you know, at Geisinger where I work that covers all that.

So I go through it and really take 'em through their decision making process and help guide 'em to a decision.

It's not my place to tell 'em what to do or what's best or what's right or what's wrong.

It's more so getting a feel of whether or not they feel this is the best decision for them, help 'em get to that place and then go through that state mandated counseling that we do, and then we kind of take things from there.

- So this protocol, this process does not happen in one visit.

- For some patients it doesn't, you know, I spend whatever amount of time the patient requires for it.

Sometimes it may be, for some patients, they've already made up their mind, they've thought about this long and hard, they've had discussion with family and that, so when they come to my office, they're like, I'm ready for this decision and I just need to know, you know, the process, the risks, the benefits, and how, what my, what are my options to undergo this decision.

- [Larry] I see.

- And for other patients, I have multiple visits.

- Yeah, you use your professional judgment then in making those decisions.

All right.

I just want to invite questions from the viewers.

If you want to use the email, it's info@wvia.org.

On social channels, it's #wviaconversations.

So in your experience, Ms. Eby-Fisher, okay, so in your experience, what are the processes that you have gone through in advising women?

- Very similar in that they need to have first the information of what's available.

It's always, I mean, even if they see, if they seem a little hesitant even after they've gone through the counseling, they've taken their 24 hours or I think we had three days at one point of waiting and then meeting again.

And then now it's time to have it.

We'll ask them even just before the abortion, are you sure?

Are you making this decision?

Not someone else telling you to do this?

Because frankly, that does happen sometimes, in which case you don't do it, but you give them the options and you give them the ability to not have an abortion if that's what they don't want, or if they're unsure, you give them the, you know, if you want to do this, just like Dr. Valle was saying, there are supports, then let's talk about what supports you need.

If you're thinking you might want to keep it, take some time, look at the supports available, and then make your decision.

Because the goal is always to give the woman the opportunity and the information that she can make the decision that is right for her.

- And Dahlia Lithwick, you have anything you'd like to add here?

- Just that I'm so struck, and I come to this as a lawyer and I'm listening to two care professionals talk.

I'm really struck by the amount of dialogue and counseling that needs to go into this.

That nobody makes these decisions lightly.

They require a frank and candid and protected safe space with an expert in order to go through options as you're hearing, in order to understand medical outcomes.

And one of the things that I think is really profound that we haven't necessarily clocked post Dobbs, is that a lot of those conversations are now subject to fear and scrutiny.

And so around the country, you are hearing from, you know, on college campuses that you can't counsel a student who is pregnant and doesn't know what to do.

You are hearing about, as you just heard, young women who are afraid to use period trackers because they don't know how their information is gonna be used against them.

We had a case in Texas where officials overheard someone discussing an abortion and the state acted against her.

And so one of the things that has really been, I think a fundamental shift in ground is that the kinds of care that we want for patients who are going through anguishing choices, economic choices about whether they can afford to have a child, you know, choices about you are 17 times more likely to die in childbirth in Mississippi, where Dobbs comes out than you are from having an abortion.

These are hard choices.

And if you cannot have a safe conversation with your pastor, with your school guidance counselor, there's a case now of somebody who was on Facebook discussing procuring abortion medication with her own mother whose records have now been subject to state scrutiny.

And so what really I think has changed is that we're living in a world in which the conversation itself, access to information about how can I get medication abortion in the mail, is now being subject not just to criminalization in some jurisdictions, but to state scrutiny.

And I just, I can't tell you how striking it is to hear care providers like the other panelists who just want to give information so that people can make the best choices for their own medical care, for their own economic self-interest, for the interest of their existing children.

And to not be able to do that because physicians are afraid to give advice or school counselors are afraid to give advice is the most chilling part of the Dobbs opinion that I'm not sure we've fully pondered yet.

- Dr. Valle, do you have, can you share or try to clear up any sort of misconceptions or misinformation about this issue that has, you know, that worries you or that you would like to take the time to dispel?

- I think there's a few things that need to be dispelled.

One is, this was mentioned earlier, the morning after pill, right?

It's not an abortifacient, it doesn't cause an abortion, okay?

Usually you have a three day window to take that and fertilization hasn't even occurred within those three days.

Second thing is, you know, and this is speaking more so different state to state, that there's confusion about what state laws are and what is available and for how long, you know, here in the state of Pennsylvania, again, it's 24 weeks gestation is the cutoff as far as up to when you can get abortion services and that abortion is safe overall, the likelihood of having a serious complication from an abortion, whether it's medical or whether it's surgical, is less than 1% of occurring.

And I think there's a lot of misinformation out there saying, oh, abortion's dangerous, complications can happen, you're gonna get breast cancer.

That was a thought at one point that's since, from a long time ago, been dispelled.

And it's very important that patients understand abortion is a safe option and that under certain circumstances, as you know, as long as you don't have any serious medical conditions, continuing the pregnancy is also a safe option.

You know, it, everything's gonna come with risk no matter what you decide.

And it's really up to the patient to decide what risks are worth taking versus the benefit.

- And Ms. Eby-Fisher.

- Yes.

- Do you have any misinformation that you want to clear up, misconceptions that you wanna dispel?

- Oh.

My favorite has to be, you'll never be able to have children.

You'll be sterile if you have one.

And that's come from people who have had more than one.

- [Larry] Mm-hmm.

- The myths that we're hearing, the you won't be able to have children, you're going to be depressed, you'll have breast cancer, your husband will leave you, that's a favorite.

They're spread by fear mongers.

And unfortunately, if a woman is especially a very young woman in a position of vulnerability, she's going to hear some of that and have to wonder so that she has a doctor that she can sit down and talk to and ask those questions and really get good information, is a saving grace.

It's literally a lifesaver.

- We have another question.

Lisa writes in, and I'll direct this to you because it is referencing Kansas.

- [Willow] okay?

- "In Kansas, last summer, a referendum to restrict abortion failed by a large margin.

Other states also saw referendums failed, yet anti-abortionists seem unwilling to accept that the people have spoken.

What kinds of legal strategies are they now trying at the state level?

Do you know what they're doing in Kansas at this particular point?"

- At least one state legislator is trying to block, he's convinced at least one pharmacy not to carry the chemical abortion pills.

They are putting pressure on different companies and then on the less than legal side, they are, well, sometimes it's legal.

They are pressing charges, making complaints against the clinics complaining that there's a lack of hygiene or that they don't have the equipment they need, which has examiners coming in to check and though they don't find a problem when they then file a complaint the next week that their surgical unit is not working, then again they've interrupted the flow.

Additionally, you have people who are threatening and protesting, but the legal side is to pretty much blackmailing and just stall, just throw things in front of people to make it difficult to get in.

- Dahlia Lithwick, can you give us some more information, not only about Kansas, maybe give us some other instances from around the country.

- It's such a great question from Lisa because it really, I think, points up that, you know, the American public did not like the outcome in Dobbs that by overwhelming majorities, the American public wants abortion to remain in most circumstances, safe and legal.

And so what you saw was a kind of minoritarian check on the public will, and that really exploded with the five ballot initiatives that came in November, where in every single jurisdiction that put it to direct democracy to decide abortion rights, every one of them came out supporting reproductive freedom and Kansas was the sixth.

And some of those are in red states where you might not expect voters to say all the way down the ticket.

I'm picking, you know, otherwise Republican clear pro-life nominees.

But on this issue, direct democracy said that abortion prevails.

And so what you're seeing around the country, some of what you just heard is efforts to make it harder for state supreme courts to effectuate abortion rights.

We're seeing in some jurisdictions, they're making it harder to put something onto a ballot initiative so that it's almost impossible to have other states replicate what happened in Kansas and Michigan and the other states that did it, stripping legislatures of the power to protect abortion rights.

So it's not just at the micro level where you're seeing, you know, attempts to chill abortion providers by creating such high legal liability that they're afraid to do anything or say anything.

But at the most structural level, you're seeing sort of democracy being warped to make sure that majority will in these cases, can't prevail.

And I think we're gonna see a lot more of that as the country continues to sort of test out, you know, just last week the Wisconsin Supreme Court had its primary and we saw a very explicitly pro-abortion candidate win, you know, very, very significantly.

And I think that as this becomes an explicit voting issue in ways it has not been, you're gonna see more and more ways, I think, in which the effort to choke off democratic systems and processes are going to be put into place.

- There has been a lot of punditry around the 2022 elections in November commenting on the better than expected performance by Democrats in that.

Do you think that, and crediting the Dobbs decision with that, do you agree with those kind of assessments?

- I think that it's not even just that I agree.

I think that exit polling really showed that heading into the midterms in 2022, there was a narrative that had taken hold that, you know, women were kind of bummed for a few weeks after Dobbs, but they'd sort of worked through it and they were upset about gas prices and they were not going to pull the lever on reproductive rights.

And as I said, in every one of the five states where it went to a referendum or a ballot initiative, abortion did win.

And, maybe more pointedly in states like Michigan, hundreds and thousands of signatures in order to get it onto the ballot.

So it seemed as though women were very, very energized.

And by the way, a lot of men were very, very energized and young voters were very energized by Dobbs.

And so it seems to me that one of those sort of mysteries after the midterms is that, given that, I think the only viable story you can tell of the midterms is that it was a huge rebuke to the Dobbs decision.

We are nevertheless seeing in state, after state, after state personhood amendments and doing away with rape and incest and health of the mother exemptions.

So in the face of having sort of suffered catastrophic losses in 2022, as a result of being way, way, way too constricting on abortion rights, we're seeing states nevertheless doubled down double down again to make abortion harder and harder.

And it's a little bit mysterious to me why that lesson wasn't taken, but I think that seems to be where we are.

- So Doctor, what are you hearing about Pennsylvania and what the, any kind of action on this issue from the legislature?

Do you think that it's going to be the status quo in the coming few years?

- Yeah, you know, Governor Shapiro has mentioned in you know, during his campaign that he's gonna uphold women's rights to an abortion.

I haven't heard anything as far as changing the current law that's in place, but as it stands right now, it's gonna be the status quo.

24 weeks gestation is the cutoff, state mandated counseling and then a 24 hour waiting period.

- Well, more recently after the Dobbs decision and overturning it, because the Roe was based on the 14th amendment, there was a judge, district judge came down and claimed that maybe this isn't a closed book and pointing to the 13th amendment as possibly securing a constitutional right to an abortion, pointing out the involuntary servitude clause.

So Ms. Lithwick, we only have a few minutes, so can you just give us about 30 seconds on that and what you know about that?

- Yeah.

It was a district court in Washington DC who in the face of it was a sentencing of folks who had, you know, tried to destroy an abortion clinic and they claimed, look, Dobbs was never the law because abortion, Roe was never the law.

So we didn't break any laws about interfering with abortions.

And this very, very sort of hardball judge said, okay, if Dobbs ultimately concluded that the 14th Amendment doesn't protect reproductive rights, let's take whack at looking whether it can be located in the 13th Amendment.

And she cited very creditable scholarship that has made that claim that the 13th Amendment also protects reproductive rights.

- [Larry] Wow.

- From one level.

- Yeah, it turns out that the conversation will continue.

This is not a closed book, it's still an open, open discussion.

One more comment from CJ.

"Thank you for this honest, frank, and caring discussion."

And I would like to thank our panel members and you, our audience for being part of this edition of Conversations for the Common Good.

On behalf of WVIA, I'm Larry Vojtko.

Thank you for watching.

(pensive music) (uplifting music) - [Announcer] This program was made possible through support from Bloomsburg University.