'Hey, everyone, I'm David Chalian, CNN's political director. And welcome to the CNN Political Briefing. This week, we're going to talk about abortion. Democrats have bet big on how far abortion rights will carry them. And the GOP is equally hoping anti-abortion voters turn out for them in March. A Kaiser Foundation survey found that abortion is the most important issue to one out of every eight voters. 38% of voters in the survey said they trust President Joe Biden. More on the issue of abortion policy while 29% trusted former President Donald Trump more. Mary Ziegler is one of the world's leading historians of the abortion debate and has written several books, including 'After Roe: The Lost History of the Abortion Debate.' She's joining me today for a deep dive into how we got here and what might happen next. Mary, thank you so much for being here.

Thanks for having me.

If you don't mind, I'd like to tap into your expertise and knowledge and get a little bit of a history lesson for our listeners. I'll say I'm 50 years old. I was born in 1973, the year that Roe was decided. And I don't ever recall at any time in my life where. Abortion rights have not been a hot political topic, but it has moments of ebbing and flowing. But it has been an undercurrent of American politics for the entirety of my life. I'm just wondering if you have a sense about how abortion became this ultra partizan issue in American politics.

'It has a lot to do with the fact that it became a partisan issue at all. So if you had a time machine and you went back to 1973 and you stopped someone on the street and said, which is the, you know, pro-life or anti-abortion party and which is the pro-choice or abortion rights party, people wouldn't really have known how to answer the question, because there were parties with both people, with both beliefs in each party. And I think that made it a lot harder for the issue to command the kind of attention it does now. And it also made it harder for the issue to be as polarizing. You know, the best predictor, then, of what somebody thought about abortion would have been religion. And this was at a time when evangelical Protestants weren't particularly opposed to legal abortion. So a lot has changed. I think Ronald Reagan in the early 1980s, late 1970s, recognized that abortion could be an excellent wedge issue, that it could command the attention of conservative Catholics and evangelical Protestants who were upset not just about abortion, but but a host of other issues like no fault divorce or the rise of LGBTQ rights movements, or even feminism. But that with abortion, it would be easier to tell those groups that something could be done right. Something could be overturning Roe v Wade or pursuing fetal personhood. And so Reagan used this issue to win over voters who historically had voted for Democrats because of economic self-interest, usually, and other politicians followed suit. The Democratic Party saw an opportunity in supporting abortion rights because most Americans then, as now, did support abortion rights. So as this became kind of part of American Partizan politics, people had an incentive in it remaining a Partizan and polarizing issue. And that's created this sort of interesting dynamic where we've seen polls remarkably stable in some ways, that Americans support abortion rights, particularly early in pregnancy. That's been true, you know, in an uninterrupted way for a long time. And yet we have the laws. We have we have the Supreme Court decision. And I think that's partly because there's been this disconnect between popular opinion and politics.

So then take us to today when you say the laws that we have and the Supreme Court opinion that we have, how would you describe the state of abortion rights, throughout the country in a post Dobbs world, what does the abortion rights landscape look like in these last two years?

It's been very complicated and dependent on your zip code, and that's been true for some time. But I think it's it's true in an even more pronounced way now. So they're states like Texas, where performing an abortion is a felony that can be subject to up to life in prison. There's any number of other states with ballot initiatives, including red states, that now treat not just abortion, but other reproductive health care as a fundamental right under the state constitutions. So we have this patchwork in the states, and then we've seen lots of litigation. So state litigation about what state constitutions have to say about this, lots of federal litigation, often initiated by conservatives who are not interested in this patchwork remaining the case. We're looking to the federal courts to introduce some sort of one size fits all federal solution. And then I think you even have, of course, the presidential politics of this, the looming possibility that you have a presidential candidate who could make, I think, really in either direction, a tremendous difference in what abortion policy looks like in the states and at the federal level after 2024.

'The Biden campaign and the president are campaigning on this notion of codifying row into law. But by my count, I don't see 60 pro-choice or abortion rights votes in the United States Senate to do that. So what does that mean? Is that a promise you hear from the president that has no actual legislative hope behind it?

Well, I mean, I think what the president's trying to do is to have a sort of aspirational like, if I had the votes in Congress, this is what I would want to do. And it's it's kind of an interesting balance. He's trying to strike because some progressives would say, well, if you want to have something aspirational, you know, why not more than ro, right? Because again, when Roe was on the books, some of these restrictions were. So you see some progressive saying, if this is just about a sort of fantasy world where we talk about what we would like the world to look like, why not say you're going to codify something more aspirational? Because clearly there aren't the votes in Congress for this right now, and it seems harder to imagine that there would be votes in the future, at least based on how congressional maps and polls are looking heading into 2024 and the House and the Senate.

And let me just ask you there, though, from the progressive side, that would want something even more aspirational than Roe. What is that?

Also one of one of the ambiguities in the question and in my answer is like, well, what is Roe? And people, of course, interpreted Roe in different ways in different times for different purposes. So one, it may be that, you know, you don't need something more aspirational, but I think the idea would be maybe to have something that progressives would say that combines protection against criminal abortion laws with other reproductive health issues like access to miscarriage management, protection against involuntary sterilization, access to birth control. You know, essentially saying that this is part of a broader health care agenda, not a standalone issue. I think that's something you'll see progressive seeing. Also, I think there's a fear that Roe is going to be synonymous with some restrictions. It's not clear to me that that's what Biden means, because Roe can be a stand in for a bunch of different concepts. But I think progressives are understandably concerned that Roe has a lot of meanings, and they're not sure which one the president has in mind.

And on the other side, it's a little less clear, I think, as to where President Trump is going to land on this. In fact, even this week, he said, stay tuned. I'll announce my abortion policy next week, which we'll see if that comes to pass. But it has been reported, of course, that he is flirting with this idea of, you know, a national 15 week ban that he thinks that that I think he's talked about. That number is something of perhaps a consensus. And I'm wondering if you can describe sort of what that entails and if that has any more realistic chance of becoming the law of the land, then does codifying Roe given the nature of the congressional maps, as you discussed, and what the 2024 landscape looks like?

Well, I mean that you would require Congress to act, and that seems just as remote, maybe even more remote, because, you know, Americans don't seem to want national limits right now. There's more support for abortion rights right now. I think, again, because there's been a backlash to the Supreme Court decision. So the appetite for any kind of nationwide ban, I think, would be somewhat limited right now. And then you just have the basic fact that it's hard to get Congress to even, you know, keep the lights on, much less pass, you know, a bold abortion law of any kind. Which is why, interestingly, conservatives in former President Trump's orbit have said, we're not even focusing on that. Like whatever he says about a 15 week ban. Pay no attention to that because we have plans that just require executive power. They don't require Congress at all.

And is that an accurate interpretation? Do you believe that executive action alone could realize his vision when you know if it is indeed sort of a a national ban.

Potentially. Right. So, I mean, the plans that are unfolding on the right involves federal legislation that's already on the books, the federal Comstock Act that conservatives say at least makes it a crime to mail any item intended, designed or adopted for abortion. And the reason conservatives think this could function as a ban is because no abortions in the US, they argue, will take place without some item that's been placed in the mail. And the reason it also seems possible is because you don't need Congress to pass anything. It's already on the books. All you would need is a Supreme Court that's willing to interpret the law that way, and a Justice Department that's willing to enforce it. Now, neither of those is is a given, right? I mean, the Supreme Court hasn't told us what the Comstock Act means in the federal courts that have weighed in, albeit a long time ago, have not interpreted it as this kind of sweeping ban. Donald Trump may not want to enforce it because the Comstock Act, if you interpret it the way conservative should do, is much more conservative than a 15 week ban. But the difference between that and all of the other plans we've described so far is they rely only on executive power in the Supreme Court. They don't rely on, you know, congressional compliance, which just doesn't seem to be forthcoming.

We're going to take a very quick break. We're going to have a lot more on the politics of abortion, past and present, when we come back. Welcome back. We're here with University of California, Davis law professor Mary Ziegler. Mary, you were speaking in the first part of our discussion about abortion medication. I know that the Supreme Court has just heard a case relating to this, and I'm wondering, well, if you observed that argument or read about it in any way and have some thoughts you want to share on, your anticipation of what the court may do. But I also am curious, sort of from your perspective, are there other court cases in the pipeline in this area broadly that we should be keeping our eyes on?

Yeah. So there are two Supreme Court cases that are happening this term. One you just mentioned is this case that challenges the authority of the FDA to approve, postpone a drug that's used in more than half of all abortions in the United States? And what appears to be likely in that case, that the Supreme Court is going to say that the plaintiffs just don't have standing to sue. And that will mean that essentially, the status quo remains, not because the Supreme Court necessarily agrees with the government, but because it thinks the plaintiffs aren't the right ones to make this case, we're expecting maybe Justice Clarence Thomas or Samuel Alito to say something about the Comstock Act and kind of fire some shots, signaling that that's of interest to at least some of the conservative justices in the future. The other case involves the Emergency Medical Treatment and Labor Act, which is a law that originally was focused on patient dumping. The idea that hospitals were turning away people who couldn't afford to pay in medical emergencies. And the Biden administration has said, we think this law means that if a patient has a life threatening emergency and abortion is the treatment that would be indicated, they have to be offered that treatment even if they live in a state with a ban, and even if that ban wouldn't cover that exception. And Idaho is in the Supreme Court saying one, that's not what this statute means. And also to the language of the statute actually mentions the word unborn child. So you've seen some conservative groups arguing that this federal law actually should mean that in blue states, there should be limits on when doctors can offer these emergency abortions because they should be focusing on what the unborn patient needs. Those are both before the Supreme Court now. And of course, there's lots of state litigation as well. State challenges to abortion exceptions, state arguments that there are state right to abortion. So the kind of battlefields have multiplied since Dobbs. So we can't focus only on the federal courts.

We just saw a big abortion ruling out of Florida this week, where the Supreme Court there ruled that the six week ban signed into law by Governor DeSantis, can take effect in 30 days or so. But also at the same time put on the November ballot as a ballot measure, for Florida residents to vote on sort of enshrining abortion rights, into the state's law. So what's intriguing to me about the Florida thing, of course, different than what we've seen in many of these states. The threshold for passage in Florida is 60%, which in a lot of the states, Michigan, Kansas, others. You know, where we've seen the abortion rights proponents win at the ballot box. It is not quite gotten to that 60% threshold. Do you think that that given what you were saying before about where public opinion is on this is a high watermark for public support?

It's possible, right? I mean, I've seen polling in Florida suggesting it's going to be close. And part of that is not that Florida is a less conservative state than like Michigan, for example. But, social conservatism in Florida is isn't the reason that Florida is red. So there are more, you know, ticket splitting possibilities in Florida, that is to say, people who would vote for Donald Trump and vote for the ballot initiative. So I think a lot of this is going to come down to turnout, and the odds of the ballot initiative passing are somewhat higher now, too, that we have this Florida state Supreme Court decision saying overruling a past decision that said there was a state right to abortion and ensuring that Floridians are going to live after 30 days from the decision with a six week ban. So that will be an interesting litmus test of, you know, are voters going to react to that by going to the polls or not?

And again, just to show that Donald Trump doesn't feel settled on this. He called that six week ban a terrible mistake when he was running against Ron DeSantis in the Republican primaries. I am curious how the United States and its polarized Partizan politics over this issue compare to what you see globally in other comparable democracies on this issue?

'Yeah, I mean, I think the answer is it's complicated. So if you look at polling like U.S. opinion polling on abortion, it looks very similar to what you see in Europe, which is to say there's, you know, a pretty solid majority of people who are opposed to criminalizing most abortions, who have some moral questions about abortion in some instances, but who are broadly concerned about criminalizing it. That is sort of what you're going to see in most European countries. So where are the divergences? Again, it's not between American opinion and opinion in Europe. It's between policy in some places and American opinion and opinion in Europe. So having bans at fertilization doesn't line up with what most Americans want. We've seen, I think, more expansive protections for abortion rights than we've seen in Europe, in the United States, in part because there's been an anticipation that conservative states are going to start trying to reach into liberals, in other words, that states are going to try to apply their laws extra territorially. So red states saying, if somebody from my state comes to your state and gets an abortion, we want to punish you. And so we've started to see blue states saying, well, we're not going to extradite this doctor and we're not going to comply with subpoena requests. And that's all unique to the United States, too. So there's a sort of arms race that happens once this polarization starts. And of course, there doesn't appear to be an obvious stopping point, because we've seen in recent months that for the anti-abortion movement, the point was obviously not overturning Roe v Wade. The point was the pursuit of fetal personhood. And fetal personhood is not just about abortion. It's about things like in vitro fertilization. We've seen recent reporting in Politico, for example, that most large anti-abortion groups are now setting up a game plan to erode support for IVF or restrict access to IVF. So the polarization, I think, in the United States, we're seeing is going beyond just abortion now.

And I know you're currently working on a book about fetal personhood. Is your research giving you any insight into what the political debate around abortion may look like in 5 or 10 years, if you can look into your crystal ball?

I think what we're going to see again is, abortion opponents moving further and further towards strategies like the ones I outlined that don't rely on voters, right, that rely on state courts like the Alabama Supreme Court. Federal courts like the U.S. Supreme Court, and maybe the executive power in the case of, you know, someone like Donald Trump who can't run for office again. So I think the bet social conservatives are making, it's not that Donald Trump's the candidate wants to do any of these things. She clearly doesn't. The hope is that Donald Trump, the person who can't run for office again, may have different incentives, right? He may be trying to please base voters who are going to be more important to his presidential future. But the kind of common theme in all of these strategies, and all of these major shifts we've seen, has been that abortion opponents are pursuing an objective that they know isn't popular, but that they see is like a human rights issue of great magnitude. So I think that theme, essentially the fight about who decides, not just in the sense of is it a person pursuing abortion or IVF or the government, but who decides in the sense of voters or judges or the executive branch, it's going to be on the agenda for a while.

Mary, thank you so much for your time. Really appreciate it.

Thanks for having me.

'That's it for this week's edition of the CNN Political Briefing. And we want to hear from you. Is there a question you'd like answered about this election cycle? Is. A guest. You really want to hear from? Give us a call at (301) 842-8338, or send us an email at CNN Political Briefing at gmail.com. And you might just be featured on a future episode of the podcast. So don't forget to tell us your name, where you're from, how we can reach you, and if you give us permission to use the recording on the podcast. CNN Political Briefing is a production of CNN audio. This episode was produced by Madeline Thompson and Grace Walker. Our senior producer is Haley Thomas. Dan Dzula is our technical director, and Steve Lickteig is executive producer of CNN. Audio support from Alex Manesseri, Robert Mathers, John Dionora, Leni Steinhart, Jamus Andrest, Nicole Pesaru and Lisa Namerow. And special thanks to Katie Hinman. We'll be back with a new episode on Friday, April 12th. Thanks so much for listening.