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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Let's continue our WNYC Centennial Series, 100 years of 100 things, in honor of the station's 100th birthday. If you haven't been following this yet, we decided that there should be more than just cake. That to honor what the station has really been about and what it hopes to be for the next 100 years, that we would celebrate with 100 years of substance. Okay, maybe with some frosting on top and a candle or two, but it's 100 years of 100 things on The Brian Lehrer Show for many of our segments these days. Today, it's thing 33. We're a third of the way there. And again today, a deep dive into something very relevant to the presidential election, it's 100 years of the struggle for abortion rights.

We have probably the perfect guest for this, Mary Ziegler, the renowned historian of abortion rights. Specifically, she's UC Davis law professor, and the author of multiple books on the subject, including Roe: The History of a National Obsession, which came out last year, and one that's scheduled for release next year called Personhood: The New Civil War over Reproduction. Professor Ziegler, thanks for coming on with us for this. Welcome back to WNYC.

Mary Ziegler: Thanks for having me.

Brian Lehrer: Let's actually start 150 years ago. I've read that until the 1880s, abortion in the United States was more or less legal and unregulated. How accurate is that?

Mary Ziegler: It's a little more complicated than that. There's some evidence that abortion was regulated after quickening, so in other words, when someone could feel movement in pregnancy. It wasn't very common to regulate early abortion. That, in effect, meant that people who were pregnant themselves had a lot of authority when it came to when and how pregnancies were regulated, because it was sort of up to them to know or to tell people when they were pregnant. There was no reliable way to measure an early pregnancy. That began to change in the mid 19th century, and the campaign to criminalize more abortions was actually led by physicians. So that's partially true, but the picture is a little more complicated.

Brian Lehrer: So the criminalization era began in the 1880s, and I see by 1910, abortion was almost totally illegal in every state. Why, and at whose urging?

Mary Ziegler: Well, when this campaign to criminalize abortion began in the mid 19th century and escalated throughout the late 19th century, it was led by physicians, so-called regular physicians. This was an era when a lot of people were still receiving medical care from other providers like midwives, so the regular physicians had any number of motives for pursuing this. They believed that life began at conception rather than quickening, which is what you'll hear as a justification most often now from folks who oppose abortion. They also wanted to gain a competitive advantage over these other medical providers, and they did that by saying they alone understood what abortion really was, they had a higher moral standard.

They also were worried, or at least made arguments to appeal to those who were worried about the relative birth rates of immigrants, particularly Catholic immigrant women, and what they saw as the sort of better sort of Protestant women who they thought were having fewer babies because they were choosing abortion. They even argued that married women who weren't doing their duty to their husbands by having an unlimited number of children were essentially prostitutes. So there were all kinds of arguments, a kind of hodgepodge that was motivating this movement.

Brian Lehrer: Ironic that the movement to ban abortion was anti-Catholic at that time. I'm so glad you brought that up, because as I've been reading about that piece of the history, it strikes me that there were some real parallels to today, what I'll call very Trump and J.D. Vance kinds of parallels, right? Like, as part of the backlash to that Ellis island era of immigration, which was very Trumpy to have a backlash to immigration, white men in power supported abortion bans as a way to get upper-class white women to have more children-- I read that on a Planned Parenthood site. Upper-class white women to have more children, very J.D. Vance "cat lady." Do you see that parallel?

Mary Ziegler: Yes, there absolutely was an interest in getting the right people to have children and stop the wrong people from having children. We see, I think, that argument come up more than once in history, but it was certainly motivating people then. One of the striking differences, of course, is that the people driving this movement were doctors who imagined, correctly at first, that these criminal laws would give them a lot of discretion. They didn't want criminal laws that really told them what to do, they wanted criminal laws that gave them more power. And at first, that's what they got. Now, of course, we're seeing people like Vance advocating for criminal laws that give doctors very little discretion, give that discretion to prosecutors. So, there are parallels. There's also obviously some disjunctures.

Brian Lehrer: Right. So if I can skip way ahead in history, there was a group of doctors put on trial in California in 1966, sued for performing abortions on women who were at great risk of having babies with severe birth defects from rubella. I see this case, which became known as The San Francisco Nine, was considered a turning point in the struggle for abortion rights, at least in California, in the 1960s. For you as a California law professor, do you teach this as a landmark case, legally or politically?

Mary Ziegler: I do, and it was part of this-- what we think of as kind of a spark for the reform movement. At first, Americans didn't just say the criminalization of abortion was wrong, it was much more incremental movement. And initially, these laws only had exceptions for the life of the patient, and that didn't seem to include scenarios like the one encountered by The San Francisco Nine. So sometimes you would see doctors trying to kind of shoehorn abortions into those exceptions, and when they couldn't, they began to say publicly, "Well, then the problem is with the laws. The problem isn't that we're going ahead and offering these services to patients, the problem is that the laws don't allow us to do that." I think there were cases, especially around some fetal abnormalities, at a time when a lot of Americans were worrying about severe birth defects caused by things like rubella, that these cases really dramatized the limits of the existing laws, and convinced some Americans that it was time to reform them.

Brian Lehrer: When did anything we might call the modern abortion rights movement get started? I see NARAL didn't exist until 1969, for example.

Mary Ziegler: Yes, the movement changed over time. At first, you had this very cautious-sounding reform movement that succeeded in passing what looked sort of like exception laws in states like Colorado and California, and it became clear over time that those laws weren't really working, that the number of illegal abortions or abortion-related complications wasn't really declining. And so that began a fight for what would be the complete repeal of abortion laws in the later 1960s, 1968, 1969, that looks more familiar to us now. That included, for example, more arguments about women's rights and feminism, also included some unfamiliar arguments. But that push for complete decriminalization, I think, began in part because these more incremental, more apologetic strategies weren't yielding the results that reformers had wanted.

Brian Lehrer: Now I'm curious to ask you about the anti-abortion movement since Roe, and how much a full telling of history shows that it's been about a pure concern for the rights of fetuses to life, as they often argue, and how much about other things. Like, if in the early part of the 20th century there were these other social concerns about encouraging more Protestant women to have more babies and trying to limit the number of babies that Catholic women had, that probably became an anachronism by the time Roe was passed in 1973, or decided by the Supreme Court in 1973. Were there other underlying political or social concerns, things in addition to just a pure moral concern for the right of fetuses that some people have that fed into it and its strength?

Mary Ziegler: I think, absolutely. One of the things that's striking, if you study the fight for fetal personhood-- There are two things that are striking. One is that when people who talk about fetal personhood are alone, when they're in strategy sessions with only people who agree with them, or when they're emailing one another, they're still talking about fetal personhood. So this idea has had this really tremendous hold on the imagination of conservatives from the 1960s onward. The other thing that's clear is that what fetal personhood means reflects all these other broader debates on the American right about the role of religion in public life, about race and racism, about the role of women, about the role of criminal punishment, how much justice or equality requires criminal punishment. So, as much as you can say it's always really been about fetal rights in a way that it hasn't been about a lot of other things, what fetal rights mean to people has always been about much more than one single thing. So I think both things are true and have been true at once over the past half century.

Brian Lehrer: Yes. You know, I'm struck by the title of your forthcoming book, Personhood: The New Civil War over Reproduction, because before I saw that title prepping for this segment, I was already thinking that the campaign to overturn Roe, or now to rationalize the ruling, now that it's been done, the Dobbs decision, reminds me so much of the Confederacy argument in the actual Civil War. It's not about slavery, it's about states' rights. People who have been following the campaigns know that this is exactly how Trump is campaigning right now. I wasn't against abortion, wink-wink, it was about states' rights to decide for themselves. Do you see the parallel?

Mary Ziegler: Yes. The other thing, of course, that's worth pointing out is that literally no one ever really wants states' rights in this struggle. There is no states' rights social movement in this picture, and so one of the things I think that will probably become clear if Trump wins is that he will face tremendous pressure to not do that, including probably from J.D. Vance, who has shown no interest in a states' rights solution throughout his political career. So not only has states' rights sort of sometimes emerged as a code for other things, it doesn't tend to be a very durable position when all of your political allies see states' rights as a deeply unsatisfying and ultimately kind of doomed proposal. You also have to wonder if a Trump administration would actually involve a commitment to states' rights, or if that's simply just the sort of political rhetoric of the moment.

Brian Lehrer: And that's true on both sides, right? I mean, Kamala Harris is running explicitly promising to try as president to enshrine the Roe v. Wade standard in federal law. Trump is running sometimes saying that he won't try to enshrine a national abortion ban, and sometimes refusing to say that, but there's that pull of gravity on both sides for a national solution as they see it, right?

Mary Ziegler: Absolutely. I think that what's interesting too is the extent to which both sides are pushing for a national solution, and sometimes in the case of people who are conservative, and even I think sometimes people who are progressive, exploring solutions that wouldn't require voters to endorse them. So not just federal legislation, but executive action changed through judges. So, if we're thinking about the long-term prospects for either a national ban or some kind of new national right, we have to expand our focus, and not just look at Congress, which is, I think, the least likely source of such legislation in the near term, and look at executive action, look at the courts, and see where other possibilities might emerge.

Brian Lehrer: Yes, and I see from your forthcoming book called Personhood, or at least the website, your website describing the book, since it isn't out yet, is that the ultimate goal of the anti-abortion rights movement is to go beyond states' rights, to maybe get-- Not Congress, which might be really difficult because they would need 60% in the Senate, and they're probably not going to get it to ban abortion. To get the Supreme Court to declare a constitutional fetal right to life under the 14th Amendment. Wouldn't that be a supreme irony? Because that's the exact same amendment in which the court cited privacy rights that gave us Roe v. Wade.

Mary Ziegler: Absolutely. The reason I think people in the anti-abortion movement are pursuing this kind of solution is because they see their cause as more important than the will of the people, and they understand at the moment that voters wouldn't be willing to enshrine those kinds of protections in federal law, in many instances in state law, if given a direct chance through ballot initiatives, so the courts are emerging as a new site of conflict. It's also ironic, of course, because conservatives for years railed against the idea of courts taking this issue away from voters, and now we're seeing the shoe on the other foot in a lot of cases.

Brian Lehrer: So this is about democracy, not just abortion rights, even as big a thing as abortion rights is?

Mary Ziegler: Absolutely. We've seen, too, that a lot of groups who are pursuing fetal personhood are working on issues beyond abortion. We've seen that on both sides of the issue, so a lot of advocacy around voting rights, a lot of advocacy about campaign finance is often pursued by groups motivated by issues of abortion rights on either side. People trying to limit access to the vote are doing it sometimes with this end in mind, so it's important to remember that if you see yourself as someone not particularly affected by this issue, you probably are being affected by this issue in these other less tangible ways you're not familiar with.

Brian Lehrer: Professor Ziegler, I'll ask you a closing question that I may have asked you before, but it's such a head-scratcher for me that I keep bringing it up, also because I think it's important. Why wouldn't abortion be a constitutional right under the First Amendment as a matter of religious freedom? This court loves religious freedom, or so they say. Because the campaign against legal abortion is overwhelmingly from religious right actors on religious right grounds. I grew up as a Reform Jew, the biggest denomination of Judaism in the United States, a major, major religion, which officially believes in a woman's right to choose. Why wouldn't a religious freedom argument to the Supreme Court be a slam dunk?

Mary Ziegler: Well, the court in 1980, which-- just sit with that for a minute, a less conservative court than ours held that separation of church and state arguments don't work because there are other moral reasons or secular reasons for opposing abortion that go beyond religion. If you're digging a little below the surface of that, the Supreme Court, this was when Roe was on the books, didn't want to be seen to be disparaging people who opposed abortion. But that decision has stood ever since, and it seems unlikely that this Supreme Court, which has been very protective, as you said, of religious liberty, but not so concerned about the separation of church and state, would revisit that kind of conclusion when the court itself sounds pretty sympathetic, uses the language of the anti-abortion movement itself.

Brian Lehrer: Well, folks, that's 100 years of 100 things, thing number 33, 100 years of the struggle for abortion rights with UC Davis law professor Mary Ziegler. Look for that next book of hers, The New Civil War over-- or Personhood, I should say. Personhood, subtitle is The New Civil War over Reproduction. Professor Ziegler, thanks so much for your time today.

Mary Ziegler: Thanks for having me on.

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