Kathryn Kolbert The end of Roe v. Wade and what comes next TED

“What’s the Supreme Court
going to do about abortion?”

“They’re not really going to overturn
Roe v. Wade, are they?”

“They can’t do that, can they?”

I can’t tell you how many people
have asked me questions like this

in recent months.

It makes sense.

I have argued two abortion cases
in the US Supreme Court,

including the 1992 case
Planned Parenthood v. Casey,

which is credited with saving
Roe v. Wade.

I was a co-founder of the Center
for Reproductive Rights,

and I spent 20 years of my career

arguing on behalf of women
who needed abortions

and other reproductive health care.

So my answer is depressing but direct:

Roe v. Wade will be dead within the year.

The constitutional right to choose
whether or not to have an abortion

will no longer be protected
by the United States Constitution.

This court is likely
to overrule Roe and Casey

or so undermine its meaning

that it will be effectively
unavailable for use.

Now I heard your gasps,

I’m going to say it again.

The Federal Constitution
of the United States

will no longer protect
reproductive freedom.

Now I’m also here to tell you

that there’s hope.

That we can preserve, by working together,

our reproductive freedoms.

And by that, I mean more than just
the right to choose abortion.

By that, I mean the ability to make
decisions about becoming parents.

All people should have that right.

Whatever their race,
whatever their gender,

whoever they love,

all people ought to have the right
to decide to become parents

and the social supports that are necessary

to raise those children
with dignity and in safety.

So opponents argue three things

when they say they want to ban abortion.

They talk about religion;

they talk about protection
of fetal rights;

they talk about protection
of women’s health.

So let’s take those each in turn.

Religion.

You know, the reality of the world is

that the world’s religions have
a wide variety of views on abortion,

and many support them in a whole range
of different circumstances.

So when abortion opponents say religion,

they’re really just imposing
their religion on the rest of us.

And what about protection of fetal rights?

If in fact you cared
about protecting fetal rights,

you’d spend a lot of time
working to eliminate

the alarming rate of infant
mortality in this country.

(Applause)

Because in the United States,

we have one of the highest rates
of infant mortality

in the developed world.

They also should be supporting programs
for children once they are born.

(Applause)

You know, what about the protection
of women’s health?

Well, the reality is, abortion is already
an extremely safe surgical procedure.

It is safer than childbirth.

And imposing new restrictions on abortion
only makes it less safe.

In my view, what
we’re really talking about,

this fixation on abortion by opponents,

those people who want to ban abortion,

is all about controlling women.

And women are unable to operate,

to be equal participants in our society,

if we cannot control whether,
when and with whom we have children.

We cannot exercise
the fundamental human right

to make decisions about our bodies
and our destinies.

So why am I so convinced

that the Supreme Court
is going to overrule Roe and Casey

and take what is clearly a radical step?

Now, interestingly enough,

I learned everything I needed to know
to be successful in the Supreme Court

on “Sesame Street.”

(Laughter)

Why?

Because you’ve got to learn to count.

And the only number
that matters is five –

(Laughter)

which is a majority
of the justices on the Court.

Now, when Casey went
to the High Court in 1992,

I was convinced that there were
five justices then

prepared to overrule Roe

and return to the states
the ability to ban abortion.

I was correct.

Right after my argument,

the justices returned
to their conference room and took a vote,

and seven justices voted to uphold
the Pennsylvania restrictions

that were at issue in the case.

And then Chief Justice Rehnquist
wrote a draft opinion.

While he never said the magic words,
that Roe is fatal,

as Justice John Paul Stevens recently
wrote in his memoir,

the opinion effectively repudiated
the central holding of Roe.

Now, luckily, that opinion
was never filed in 1992.

At the last minute, Justice Anthony
Kennedy changed his mind,

and together with justices
Sandra Day O’Connor

and David Souter,

they issued what they called
a joint opinion.

And in it, they upheld the right of women
to obtain abortion up until viability,

usually between 24
and 28 weeks of pregnancy,

in all 50 states and US territories.

But the Casey decision
went a little further,

and it had permitted states
to enact barriers to abortion

as long as they weren’t undue
burdens on women.

And as a result,

in the following three decades,

we’ve seen states pass
hundreds of restrictions on abortion,

and the increasingly conservative
courts uphold those restrictions.

And as a result, we’ve seen a dwindling
availability of abortion.

Today, about 11 percent
of the counties in this country

that actually have an abortion provider.

There are six states
that have one abortion provider.

As we know, in the days before Roe,

women with means
were able to get abortions.

Other women, on the other hand,

even today –

low-income women,
women who live in rural areas,

teenagers, women of color,
women who are disabled –

all of whom have difficulty

accessing safe and affordable abortion.

Now the question is:
What’s going to happen now?

And unfortunately,
things are going to get worse.

There are currently three cases
pending in the Supreme Court,

two from Texas and one from Mississippi.

Now, most of you probably
have been following the Texas situation.

Texas passed a ban on abortion
at about six weeks of pregnancy.

It allowed any individual
to sue abortion providers.

Vigilantes could collect a bounty
of 10,000 dollars

for a violation of the law.

And as a result, many, many clinics,

probably most of the clinics in Texas,

have closed their doors

or have decreased the number
of abortions they performed.

It’s difficult.

But the critical piece about Texas

is that five justices –

remember that number five –

five justices already voted to permit
the Texas law to go into effect.

And besides the harm for women,

those justices are not really considering
the constitutionality of the act,

only who can be sued and where.

The more important case
is out of Mississippi.

There, there’s a ban on abortion
at 15 weeks of pregnancy.

Arguments were heard this week,
and in my view,

we are likely to see
at least five justices

overrule Roe and Casey

and send the question of abortion
back to the states.

Sesame Street, five votes.

And unfortunately, this time around,

there is no Justice Kennedy to save us.

Now, what’s going to happen
when Roe and Casey are overturned?

I’d guess that about half
the states in this country

will ban all or most abortions.

We’re likely to see ban stretching
from Georgia all the way west to Texas,

from Idaho, all the way south to Arizona.

Women, like Texan women,
will be forced to travel to the 15 states

that are controlled by pro-choice
legislators and governors.

Other women will seek medication abortion,

using the internet
or gray or black markets

and subject themselves in some states
to criminal prosecutions.

Still, other women will carry
their unintended pregnancies to term.

The bottom line is
this is not a pretty picture.

So what now?

What can we do?

We have been saying for five decades,

“Save Roe, save Roe, save Roe.”

That strategy is no longer feasible.

Give it up.

We’ve got to make sure

we quit hitting our heads
against the marble staircase.

And try to find new strategies.

So I’m going to propose
two of them to you today.

First, we’ve got to build
a badass social justice movement.

(Applause)

Which means loudly crying for our rights,

loudly saying: this is something
that belongs to us.

We know from watching
the Black Lives Matter movement

and the marriage equality movement
that coalition is queen.

We’ve got to find allies

and work with them to make sure
our rights are protected.

But equally important,

we’ve got to ensure that we elect –

and I’d actually say more important –

is we’ve got to elect legislators,

throughout the states and in Congress,

who are champions for reproductive health.

Now, I’m not going to bother
to tell you all

how to get politically active.

This is a crowd that knows how to do it.

But knowing how to do it
and actually doing it

are two different things,

so what you need to do
is get politically active.

But one of the things I will tell you

is what would our world look like

if we were able to wrest the reins
of governmental power

away from those who oppose abortion

and allow an agenda

that reflects reproductive
freedoms and justice.

Picture this.

We would have childcare

and universal childhood education
in every community in this country.

We would have paid maternity
and paternity leaves,

and people would actually take them.

All working parents
ought to have that right.

You know –

(Applause)

According to the Centers
for Disease Control,

African American women,

Native American women, Alaska Native women

are dying of pregnancy-related causes

at three times the rate of white women.

And most of those deaths are preventable.

So in our world where we control
the reins of power,

we would ensure,

we would ensure that there were programs

to reduce this alarming rate
of maternal mortality.

And we would make sure

that the systemic racism
in our health care system

would be eliminated.

And we’d work to eliminate infertility

with special programs for women
who can’t get pregnant.

And we would make sure that all women
are entitled to health care services

at all stages of their life.

Now all of those things I’ve talked about,

are family-friendly policies

and ought to be supported
by our opponents as well.

I’ll wait to see if that’s the case.

But in my world where we control
the reins of power,

we would do more.

The birth control pill
would be available over the counter.

(Applause)

OK, as easy to get as a bottle of Tylenol.

And we’d have quality sex education
in every public school in this country.

(Applause)

And we would make sure that …

abortion is affordable and available –

no more bans, no more barriers,

no more restrictions on funding.

And medication abortion,

the abortion pill,

would be available not just
at Planned Parenthoods

and the dwindling number
of abortion clinics in this country,

but at pharmacies without a prescription,

at walk-in health centers

and on every college campus
in the United States.

(Applause)

And if you had any doubt

about the importance
of getting politically active,

we could also pass

a constitutional amendment,

what I call a gender equity amendment,

that would guarantee to all persons

the ability to make decisions
not just about abortion,

but about pregnancy and marriage

and sexuality and parenting.

And it would be a permanent part
of the United States Constitution.

Now the important part of that is

these rights should not
be controlled by politicians.

They shouldn’t be dependent
on where you live

or how much money you make

or the color of your skin

or the person you love

or the pronouns you use.

These are universal
fundamental human rights,

and they ought to be guaranteed in law,

in the Constitution,

so the Supreme Court
cannot willy-nilly take them away.

(Applause)

Now to do this,

we need to elect champions for choice

to the 500,000 elected seats
in our government in this country:

everything from school boards
to town councils,

to state legislatures
to Congress and the White House.

All of those seats need to be controlled
by champions of our cause.

And that can only happen
if you get politically active.

Your vote, your willingness
to work in campaigns,

write postcards, make phone calls,

knock on doors,

can make that happen.

And even run for office,

because that’s what we need to do.

Now while dire, the end of Roe
is not the end of the story.

To paraphrase Joan Baez,

the best antidote to despair is action.

And your action,

your willingness to work hard

cannot only preserve reproductive
freedoms for ourselves

but for our children as well.

So let’s do it.

Thank you.

(Cheers and applause)