Attorney Describes Legal Strategies Which Could Counter Restrictive Abortion Laws : NPR

NPR’s Ari Shapiro speaks with women’s rights attorney Kathryn Kolbert on longstanding efforts to chip away at Roe v. Wade and the strategies abortion rights supporters could use to fight such laws.


The law that bans nearly all abortions in Texas was designed to be difficult to challenge. It puts private citizens in charge of enforcement rather than state officials. And in the day since the Supreme Court let that law stand, Republican lawmakers in at least four other states have said they hope to use the Texas legislation as a template to restrict abortion in their own states. Those who support abortion rights are scrambling for a counterstrategy. Kathryn Kolbert is a women’s rights attorney and co-author of “Controlling Women: What We Must Do Now To Save Reproductive Freedom.”



SHAPIRO: You argued the Supreme Court case Planned Parenthood vs. Casey in the early ’90s. That’s the case that upheld the basic tenets of Roe vs. Wade. Now 20 years later, the Supreme Court is far more conservative than it has been at any time since Roe. So how does that shape your strategy?

KOLBERT: Well, Ari, I often say that arguing before the Supreme Court is a lot like “Sesame Street.” You have to learn to count. And the only number that actually matters is five.

SHAPIRO: Because five justices gets you to a majority.

KOLBERT: That’s correct. And in 1992, when I argued the Casey case, we thought there were five justices at that time to overturn Roe. That didn’t happen. Today we’re not so lucky. There’s at least five, if not six, votes that could overturn Roe. And the latest vote count in Texas shows us that there are at least five votes there that are hell-bent on destroying the rights that are guaranteed in both Roe and Casey.

SHAPIRO: And so that being the case, do you just try to avoid the Supreme Court altogether, or do you see any scenario where the Texas law could be overturned, even by this very conservative court?

KOLBERT: I see very little opportunity to have that happen.

SHAPIRO: So what do you do?

KOLBERT: Well, when we wrote the book, our biggest advice was to not rely upon the courts. The federal courts in particular are not our friends. And we need to turn instead to the legislative process to restore the rights that will be taken away probably in the Mississippi case that will be heard sometime this fall.

SHAPIRO: You say abortion rights supporters need to turn to the legislative process. But abortion rights supporters have lost ground in state legislatures, which is what led to laws like the one in Texas and the one in Mississippi. It seems like if that’s your strategy, things are going in the opposite direction of where you would like to see them go.

KOLBERT: Exactly. The anti-abortion movement had a 40-year strategy. We need to have a long-term one as well.

SHAPIRO: So if you’re saying that the Supreme Court and federal courts are not friendly to abortion rights and many state legislatures are not friendly to abortion rights, is the only strategy here a 40-year one? Is there anything more immediate to challenge these very restrictive laws?

KOLBERT: There’s absolutely shorter-term strategies. In the – what I call the purple states, we’ve got to work to make them blue. The first thing you got to do is to make the governor blue and then work on changing the composition of the legislature and do the hard work of winning elections because that’s what our foes have done, and they are now reaping the benefits of that.

SHAPIRO: In the immediate term, abortion rights supporters in Texas, Mississippi and other states have called this an emergency. What advice do you have for people in states like Texas who need to end a pregnancy now and do not have the resources to leave the state?

KOLBERT: The good news is, unlike the days before abortion was legal, when women were forced to seek surgical abortions from illicit and often shady practitioners, today the availability of medical abortion can greatly improve women’s health in a circumstance where the procedure is illegal.

SHAPIRO: Do you mean, like, abortion induced through a pill? Is that what you’re referring to?

KOLBERT: That’s right. And self-medicated because women will have to do that under the Texas law on their own. And the most important thing is for the rest of us, those who aren’t facing an unintended pregnancy right now, we need to get up off the couch and get active and make sure that no longer can bills like this be passed without some vocal opposition.

SHAPIRO: That’s Kathryn Kolbert, co-founder of the Center for Reproductive Rights.

Thank you for speaking with us.

KOLBERT: Thanks, Ari.

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