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This is our second episode on abortion rights and access in New York. In the first episode, we discussed a package of laws the state legislature passed in the wake of the Supreme Court's decision striking down Roe v. Wade. We also went into the effort to add an equal rights amendment to our state constitution and talked about efforts to fight hospital consolidation.
Today, we talk about the future of the fight for abortion rights and access in New York and how we can win it. What was left on the table, what are the obstacles, and how can we get involved?
[00:00:00] Simon: Welcome to Rights This Way, a podcast from the New York Civil Liberties Union, the ACLU of New York State. I'm Simon McCormack, senior staff writer at the NYCLU, and your host for this podcast, which is focused on the civil rights and liberties issues that impact New Yorkers most.
[00:00:24] This is our second episode on abortion rights and access in New York. In our first episode, which I urge you to listen to if you haven't, we discussed a package of laws the state legislature passed in the wake of the Supreme Court's decision striking down Roe v. Wade. We also went into the effort to add an equal rights amendment to our state constitution and talked about efforts to fight hospital consolidation.
[00:00:48] In this episode, we talk about the future of the fight for abortion rights and access and how we can win it. For more on everything we talk about today, go to NYabortionaccess.org. And here to discuss where we go from here is NYCLU executive director, Donna Lieberman, and NYCLU assistant policy director, Katharine Bodde.
[00:01:12] Donna, Katharine, thank you for joining me on Rights This Way.
[00:01:16] Katharine: Thanks so much.
[00:01:17] Donna: Yeah, thanks for having us.
[00:01:20] Simon: Yes, it's, it's truly great to have you, and I wanna start first, Donna, with you. How do you think what lawmakers did in the final days of the regular session and then in the special session that followed, how, how will that shape, um, what happens moving forward?
[00:01:38] Donna: Well, what lawmakers in New York did, um, uh, in the final days of the session and the special session of the legislature was to let the world know that New York intends to be a leader in protecting the right of women, girls, um, all pregnant people from the unprecedented attacks that have been unleashed by the Supreme Court decision in Dobbs. And that's critically important. The first passage of a state ERA to enshrine abortion, reproductive justice in our state constitution is an important step along the way to inoculating New Yorkers from this kind of attack. Uh, the package of bills that sought to protect, um, abortion access and to protect providers and helpers from retribution from forced pregnancy states is an important step in the right direction. But I have to say it's not the end by a long shot. We have a long way to go and the landscape will be changing for years, if not decades to come. And New York is going to have to step up to the plate again and again and again, and this isn't new for New York. Back in 1970, um, before abortion was legal in the rest of the country, New York stepped up to be the place where people could go to get an abortion without, um, having to go to a back alley and risking criminal prosecution either for themselves or the providers that were helping them. So New York has done this before. Yes, it was different in 1970, but we know, and we will do it again.
[00:03:49] Simon: Right. And Katharine, I'm, I'm curious first, if you have anything to add to that piece, but I also wanted to get your thoughts on, on the Supreme Court, um, because there's a lot of anger focused on the Court. And rightfully so. And I'm curious how you think we should think about the Court, um, and what we can expect from the Justices in the near future.
[00:04:13] Katharine: Yeah. I mean, Donna was right on about positioning New York as a leader. We've been there before. We're gonna do it again. Um, you know, I think what's so disturbing about the Supreme Court in this moment is, you know, we put a lot of faith into our democratic institutions and into the, the levers of democracy, including the Court to, to really uh, land in places that are ultimately fair and just, and representative of the interests of all people – and insulated from partisan politics as well. And so it feels, really, extremely disturbing to watch our Court and, and other institutions degrade over time to be vulnerable to anti-democratic forces, um, that are not being guided by established principles and norms. And while I'm, I'm certainly not trying to reminisce about any kind of fictional history here – I think we all know that our democracy has never truly represented the interests of all people or human rights for that matter – um, I do think that our current trajectory is alarming. It took decades to get to this point with the Supreme Court. Um, conservative, conservative legal forces that have really teamed up with both the religious right and the Republican party have been methodically pushing over a very long time to secure the Supreme Court in a position that is intensely partisan and willing to abandon long-time precedent.
[00:05:53] So you asked me about, uh, what we can expect. And you know, this Court overturned Roe, um, and the same rights that are connected to that fundamental right to abortion protected under what we call, uh, substantive due process. Those protections are vulnerable, and they include protections, for example, for equality, for the LGBT community.
[00:06:17] And we can really expect those to be, um, up next, uh, when we think about where the Supreme Court is going. Um, and I think that we can also expect a real expansion when it comes to the use of religion to discriminate against people, whether it's denying services, um, uh, by employers or, uh, denying benefits to employees or even in our educational system as well.
[00:06:46] So, you know, if, if we, if we wanna put our Court and our democracy on a different trajectory, uh, it's just going to take some real intensive and, and diligent effort to get there.
[00:06:59] Donna: Yeah. And, and I would say, you know, um, adding to that, there have been conversations for many years now as the radical right has, you know, been on this march to take over the Court. And I don't call them conservative anymore, you know, conservative means you wanna protect the status quo, you're not open to change. These guys, you know, are doing precisely what they accuse the Court of, of being when it was protecting civil rights. They are turning the Court into a lawmaking body and ignoring the established principles that have guided American jurisprudence for centuries.
[00:07:38] So I think that there is now a conversation that it has much more resonance with people about lifetime appointments – you know, whether that's a good idea, whether in fact Justices should be appointed for a term of years. And there are conversations about whether we should add Justices to the Supreme Court. All of which have been done in the past at various times, and, and may again get adequate traction to be achieved again in our lifetime, because this is history. It's bad history for the people, but it is history. The Court has never before taken away a fundamental right like this, and it has signaled that it's got so much more by way of fundamental rights in its crosshairs. So people are talking about is the legitimacy of the court and, and the court has like set that up.
[00:08:38] Simon: So okay. With that, that quite bleak, uh, picture here...
[00:08:43] Donna: Sorry.
[00:08:43] Simon: No, no, I mean, that's accurate, totally accurate. But with that in mind, we know we need to pass the Equal Rights Amendment, which we've talked about, um, we know some of the positive things that the legislature accomplished, but what was left on the table, particularly given what you both laid out in terms of the threats from the court and, and elsewhere?
[00:09:05] Donna: So I think the biggest thing left on the table – and, but, and there's a lot – is that we are in a, uh, context of whackamole because the radical right, the forced pregnancy states, um, are on a crusade and are very creative in how they are, uh, seeking to interfere with the rights of women, girls, um, trans people to access the care that they need.
[00:09:38] And, and so we haven't thought of everything that they have thought of. We can't prepare for everything. And we're talking about, uh, half the states on this march to get in the way of our freedoms. Uh, so we don't know what the enemy is. We don't know the contours. And so we are going to have to be nimble.
[00:10:01] That's a very difficult thing for state legislators to do. That's a very difficult thing for a Congress that has been set up to not be able to do a whole lot, you know, with the filibuster and the electoral college, uh, and gerrymandering. So the political power in our country is set up to favor actually the states that are forced pregnancy states and the politics of that, not when it was set up, they didn't know that they were doing that, but that's the way it has turned out. And so it's not just simple majorities that win the day. We know that the American people are pro-choice. They want women to be able to get abortions. They want pregnant people to be able to control their healthcare in their lives.
[00:10:48] Of course they do, but the politics are set up–you know, the scales are tilted against us. So that's, I think, the hugest obstacle and, and, and what's left on the table, but Katharine, I know you have more.
[00:11:01] Katharine: I mean that's right on, Donna. I think, uh, being nimble in a moment in time where the legal landscape is shifting right in front of us is, is gonna be critical. Um, there were certainly, uh, measures that were left on the table at the end of the last legislative session that I think we are going to be prioritizing as we move forward.
[00:11:21] It's, it's really gonna be critical that the state invests in, um, infrastructure so that, uh, abortion care and access are sustainable in our state. We already know that there is a backlog when it comes to people being able to access abortion, that people have been traveling for quite some time to access abortion and that those numbers have drastically gone up, uh, since the, the Dobbs decision. Um, and so we are going to be pressing for passage of, um, a bill called the Reproductive Freedom and Equity Act, uh, which would establish a, a state fund that would, uh, shore up the infrastructure needed by, by clinics, by, um, the organizations that are set up to support access to abortion care. And that is something that's gonna be really critical to, to see, uh, the state take steps forward on. And I would also just mention, I mean, certainly we are gonna—going to need to recalibrate in response to other states. We also need to do a really deep look at the various types of, um, antiquated, regulatory and administrative burdens that are—and barriers that are set up to care in New York. Um, and so I think that, uh, as we move forward, our state legislature has, uh, plenty to do when it comes to, uh, making sure that, uh, abortion access is a reality across New York State.
[00:12:55] Simon: Great. That is a, a clear, um, path forward, I think. Though, I'm curious what both of you think about what the obstacles are from getting those, those pieces?
[00:13:07] Katharine: I mean, I, I think I would love to get Donna's take on this. Um, my thought is certainly that I think that we need, uh, courageous leaders who are willing to, uh, step up and make sure that, uh, they are moving beyond the, the politics of this issue, as Donna alluded to earlier, and really, uh, being leaders in a movement that needs them right now in this moment.
[00:13:33] Donna: Yeah. And you know, once again, Simon, it's, um, whackamole is, is, is such a big obstacle also, uh, you know, we live in an era where 'do not tell a lie' is like not the mantra of a vast chunk of the political leadership in this country. It's not about truth or fact it's about manipulating public opinion and misrepresenting reality.
[00:14:09] And, um, you know, I expect that in the name of, uh, or in the effort to, uh, impose forced pregnancy on people all over the country, we're going to hear about. How protecting abortion rights is anti-religion and, um, nothing could be further than the truth because in fact, the Supreme Court, you know, in the Dobbs opinion, you know, came as close to saying that, that we are, you know, a Christian, um, theocracy as one ever could have like, you know, feared.
[00:14:45] So, you know, and I would say another obstacle for us is our own, uh, tendency sometimes to wanna get things absolutely perfect. We have the vast majority of Americans with us. And increasingly people are beginning to understand that this is about abortion and that's huge, but it is not just about abortion — um, that this is about women and that's huge, but it's not just about women.
[00:15:20] It's also about trans people with regard to abortion, but also with regard to equality and the ability to be who you are. Um, it's about LGBTQ rights. It's about the right to marry. It goes, the list is—it's about voting rights too, you know, earlier they eviscerated the Voting Rights Act. So as we connect the issues, because the attack on every fundamental principle of our democracy by this court and by the right wing, um, is clear — it's becoming clearer to people in New York people across the country — but we have to appreciate that not everybody who is basically on the right side of history and wants to be on the right side of history and stand up for fundamental rights, agrees on everything. And we have to figure out how to build a mass movement to protect people—to protect people's right to be who they are, to live their lives freely, and to control their destiny as much as possible without interfering with other people—without agreeing on everything. That's like a harder thing to do certainly than it is to say, but we have to figure out how to do that. We have to build a broad, sustainable movement. The disincentives and the interference with the right to vote is such an obstacle to guaranteeing and protecting freedoms in this country, including in New York, the turnout in a primary election, you know, you're lucky if you get 30%. That's not democracy. That's like not the people's will. That's like, you know, who's the best organizer. I mean, we wanna be the best organizers, but it's not a majoritarian society. It's not truly representative of, of people's views. But people have been discouraged for so long—whether it's by the failure of courage, the failure of leadership, or my vote doesn't count—from engaging in the democratic, the political process. That has to stop, that has to stop now. Everybody has to vote in every single election, you know, and we have to ensure that our rules—and the passage of New York's John R. Lewis Voting Rights Act this spring was huge, a huge step forward in this regard–but we have to ensure that the, the, the system of, uh, election districts of, of gerrymandering is not allowed to happen. And I would say by the way, you know, that the New York State Court of Appeals did not do anybody any favors, including—I'm, when I say that—did not do a good job in protecting democracy in throwing out the electoral map and, and, and imposing a map on us, um, that has really thrown New York politics into turmoil. But that's the topic for another day, I think.
[00:18:25] Simon: And so when, when we look at those various obstacles, what gives you both, um, hope that we can build that movement, as you said, Donna, that we can accomplish what was laid out here.
[00:18:39] Katharine: You know, I think these days it can be really difficult to locate optimism for all of the reasons that Donna just listed out and the just enormous mountain to climb to, um, overcome those obstacles. And, and I think that that's why so many people actually don't engage, but it is really necessary to engage.
[00:19:01] And even though many may not feel surprised given this country's history about the dire moment that we are in, it can still feel like a real shock to the system, uh, when you are experiencing it. And I think that there have been, uh, a lot of shocks to the system over the past decade. You know, when Justice Ginsburg died, I will, uh, never forget what one of our colleagues at the ACLU said, and she was in part quoting, um, the, abolitionist organizer, uh, Mariame Kaba, but she said that, uh, hope is a discipline and that revolutions are born from our grief and our despair. And while our grief can certainly illuminate our call to action, um, I'm, I'm not counseling that we organize from our pain. Um, I think that we absolutely do need to organize around our values, um, and those values of, uh, connection and community, and equality and justice, uh, and healing, and, um, really caring about each other deeply. And, you know, we are in an unprecedented moment together and we really have our work cut out for us as Donna was alluding to earlier, by talking about the movement that we really need to build together in order to push back on, um, the forces who would bring us, who would, who would bring us backwards. And so it's gonna be really critical for states like New York to step up, uh, to fight back, uh, to protect people's rights. And that means that we need, um, all the folks listening to this podcast, uh, to be counted in that movement. Um, and to spread the word to their, their family, their friends, and their community.
[00:20:54] Donna: Yeah. And, um, there's hope in places we might not expect it. Kansas, Kansas, you know, we don't have to say you're not in Kansas anymore, uh, and, and be relieved because the voters in red Kansas resoundingly defeated an amendment to the constitution that would've banned abortion. That is huge. It, it validates what we have been saying, for quite a while, that Americans are for abortion rights, that they support abortion rights, that they supported Roe v. Wade, and, um, do not approve of what the Supreme Court has done and what the states are using the Dobbs decision to do, which is to ban abortion, to, to be forced pregnancy states. They don't believe in forced pregnancy. That is huge. You know, we're gonna see other referenda in other states. Michigan has a referendum, uh, coming up, uh, Vermont does, and Roe will be on the ballot in New York. In 2024, the legislature has to give second passage to the ERA and it will put Roe on the ballot in 2024. It's important. That we understand that the political leadership of the, the radical right wing Republican party does not represent the American people.
[00:22:21] And, um, that gives me hope, you know, and the other thing that gives me hope is young people, you know, my kids, the youngest generation of New Yorkers, of Americans, have grown up in an environment where, you know, if you need an abortion, you can get one. If you are, um, LGBTQ, if you love somebody of the same, uh, gender, you can marry that person.
[00:22:50] Um, and I think they are just shaken to the core by the erosion and the threatened erosion of the values that like they thought were like, 'duh'. You know, and they are energized, you know, they, um, I think appreciate that you don't have the luxury of sitting out the election because all politicians are the same, you know, you have to get, they understand now and they are getting involved. They understand the need to get involved. They're getting involved. And, you know, the good news for me and my generation is that the next generations have much more creative, um, ideas about how we win this battle in the long run than my generation has had.
[00:23:42] Simon: And with that, how can folks like you're describing, Donna, how, how can people get involved in this fight?
[00:23:49] Donna: Well, there's a lot of different ways. Um, and sometimes it's not easy. Um, I think everybody has, you have to get informed. It starts with, you have to get informed and places like, you know, the NYCLU, the ACLU, Planned Parenthood, uh, National Institute for Reproductive Health, uh, American College for Obstetricians—of Obstetrician and Gynecologists, um, Southern Poverty Law Center, uh, NAACP Legal Defense Fund.
[00:24:15] These are websites to go to organizations, to engage with, um, become part of and support, you know, with money, absolutely with money, but also with yourself. So understanding the issues from the trusted organizations and thinkers is really, really important. And everybody, everybody needs to get to know and get in the face of their elected officials and, and you need to know enough so that if somebody says, 'oh yeah, I support equality,' you know, you need to know what the next question is: but did you support the ERA? You know, and what are you doing to protect abortion access and the infrastructure for abortion in New York? You know, so I think that's something that you can do, whether or not you're involved in collective action. But you know, there are demonstrations, we need to show up in the streets. The NYCLU has a volunteer force um, you know, and you could go online to NYCLU.org and sign up. The ACLU has People Power, you can sign up for that. Um, and the other thing is we're in a moment where this issue is bigger than any of the organizations that are out there. So people need to sort of take organizing to heart, and, and talk to their friends, talk to their families, talk to their kids and their elders, and do a whole lot of listening as well. Um, and thinking about what we should be doing, and sometimes you just gotta do it. So I think that, you know, the other thing people need to do, and it's hard to say exactly how you do this piece of it, but is learn about, understand, and don't let go of, you know, the interconnection of all the issues that we're talking about, all the different populations who are under attack, all the different aspects of democracy that are under attack, nobody can afford to be just for abortion access. Nobody can afford to be just for LGBTQ rights. It's all connected.
[00:26:44] It's all of a piece. And trust me, the opposition is after us on all of it. So connecting the dots and helping our kids, you know, grow up to be activists. And, you know, frankly, I think that parents have such an enormous job and responsibility, you know, it's, it's hard enough to teach your children well, you know, and help your kids grow to be, you know, good people and caring people, um, and respectful of others and people who are different from them, whatever the differences are. But you know, now you gotta sort of counter a big narrative on social media, um, you know, coming out of the guy who used to be in the White House, you know, most prominently or un–antiprominantly about bullying and lying and, and making fun of people who are different. So I think that that's some of, you know, it's personal, all politics is local. So get involved locally and go to the organizations like the NYCLU. If you're listening to this podcast, chances are, you know, about the NYCLU and the ACLU. We're the New York affiliate.
[00:27:55] Katharine: Oh, I feel like Donna really captured it. I think that, you know, we're in a moment in time in history where politics and organizing and, uh, the way that we advocate can feel really transactional. And I think that we are looking to create a deeper movement. We are looking to create, um, a movement that is sustainable. Um, and that involves having, uh, hard conversations. It involves really deeply listening to each other, um, and trying to change culture. Uh, and those are the types of things that we need to make sure that we are, are doing to, to create that kind of broad-based necessary movement that, that Donna spoke to so well.
[00:28:39] Simon: And with that, Donna, Katharine, thank you both for being on Rights This Way.
[00:28:45] Katharine: Thanks so much, Simon.
[00:28:47] Donna: Thanks Simon.
[00:28:49] Simon: Thank you for listening, you can find out more about everything we talked about today by visiting nyclu.org. And you can follow us at NYCLU on Instagram, Twitter, and Facebook. If you have questions or comments about Rights This Way, you can email us at firstname.lastname@example.org. Until next time, I'm Simon McCormack.
[00:29:11] Thank you for fighting for a fair New York.