Heather Cox Richardson:

From CAFE and the Vox Media Podcast Network, this is Now & Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman.

Heather Cox Richardson:

So we have exciting news. Our CAFE colleague Ellie Hoenig has just launched Up Against the Mob, a six episode series about his time taking on the mafia as chief of organized crime at the Southern district of New York. And I cannot wait for this, I love the history of the mob.

Joanne Freeman:

which I actually know. Even from just the time that we’ve been working together on this show, you have mentioned it more than once.

Heather Cox Richardson:

We need to know so much more about the mob than we do. It’s such a cool-

Joanne Freeman:

We totally do, and we will.

Heather Cox Richardson:

Cool influence in American life. That’s right.

Joanne Freeman:

We will. We will. And as a matter of fact, new episodes come out each Wednesday, listen to Ellie discuss LA Cosa Nostra, saying that on air is a thrill I have to say. Just saying it all by itself, it’s a great phrase. As he sits down with cops, undercover agents, defense lawyers, and mobsters turned cooperators. Subscribe and check out the first episode for free today. And Heather.

Heather Cox Richardson:

Yeah.

Joanne Freeman:

As you just said, maybe we ought to do a mob episode one of these days.

Heather Cox Richardson:

Oh I cannot tell you how cool that would be, but not today. Today we’re going in a different direction.

Joanne Freeman:

We are indeed. Today we are going to be talking about an issue that is front and center for many, many, many people right now and that is the question of abortion, which of course has been brought to the public for because of the decision that was recently made, the legislation recently passed in Texas, that in a variety of different ways is unprecedented in the way that it is illegalizing abortion without really illegalizing it, but effectively overturning Roe v. Wade. What we want to talk about today is, as we always do, some of the historical context and background leading up to this moment. And I think one of the things that even you and I just briefly talking about this have realized is not a surprise but still will be noteworthy today, and that is the way in which this single issue combines so many other issues. So that for any number of reasons, it’s totally understandable why this is and in some ways has been a fraught issue for quite some time. If you think about it, just the simple question of abortion, it involves obviously women’s rights, rights to control your body, the right to privacy, questions of values and morality, questions about religion and the state, even questions about immigration and join that altogether with the simple fact that questions about abortion are deeply personal.

Heather Cox Richardson:

So one of the things I want to bring today to our discussion is the untangling of some of these issues, so that they’re easier to grapple with the different issues at stake. So first of all we have on the table, the issue of abortion itself and the history of abortion and what that says about American society at different times is utterly fascinating and quite a bit different than most people think it is. So let’s throw that one on the table, but next to that is the issue of misogyny, that there is throughout the history of our grappling with the concept of abortion a real fear of women, especially women in healthcare professions and of women who are perceived to be different, women of color for example.

Joanne Freeman:

And women making use of [crosstalk].

Heather Cox Richardson:

Making use of power. Yes. It’s no accident that some of the early witches who are accused are women who are midwives. Then there’s the issue that is really the issue at stake for me, and that’s the issue of civil rights. And the relationship between individuals and the government and protection of an individual’s civil rights. And that’s right now on the table with Texas’s Senate Bill number eight, we’ll talk about it in a minute. And then finally is the issue of politics and how politics has been entangled with the issue of abortion since the 1870s. And they’re not at all natural partners in many ways. Politics has shaped the way we think about abortion, it has shaped the way we react to abortion and it has shaped the outcomes of whether or not women are going to enjoy that civil rights or not. And it’s really important to keep these … I think of it as a four lane highway. And if everybody mushes all those together, you can’t really untangle them because you keep tripping over yourself and getting the issue of-

Joanne Freeman:

Traffic.

Heather Cox Richardson:

That’s right.

Joanne Freeman:

Really bad traffic.

Heather Cox Richardson:

Can you tell I’m commuting again to Boston. It’s important to untangle those in order to get a handle on where we’ve been and where we are going and what might be some reasonable outcomes of this really tangled abortion debate. So why don’t we start with what actually happened in Texas.

Joanne Freeman:

To begin with, Texas’s Senate Bill number eight is one of several so-called “heartbeat” bills that Republican legislatures have been enacting around the country as part of a sustained effort to overturn Roe v. Wade and Planned Parenthood v. Casey. And both of those cases, the Supreme Court held that the constitution protects the right to have an abortion before a fetus can survive outside the womb. Now, typically that benchmark, which is known as viability, occurs around 24 weeks of pregnancy, but Texas’s Senate Bill number eight prohibits abortions after about six weeks of pregnancy before many women realize that they’re pregnant. And that’s the important part here is six weeks. That’s a point before which many people have even realized they’re pregnant. So in and of itself, before you even get to the fact that the bizarre and by my point of view, outrageous way in which the enforcement of this act is dictated in this bill, the simple fact that many people won’t even know they’re pregnant before this bill goes into effect is in and of itself kind of shocking.

Heather Cox Richardson:

So lots of people won’t know they’re pregnant. But then this is the part that really jumps out to me and has jumped out to me since this happened. And in fact, again, my focus on this bill has been about civil rights because what has happened historically is that after the Supreme Court established that women had a constitutional right to abortion in 1973 with the Roe v. Wade decision, a constitutional right to abortion in the first trimester of a pregnancy, that’s a constitutional right. That’s a constitutional right that women have. And what SB8 does is, to my mind, diabolical, and I’m not really talking necessarily here about abortion, I’m talking about civil rights and the protection of constitutional rights, because what SB8 does is it does not have the state enforce it. It has individual citizens enforce it. It enables them to go after individual people who aid or abet a woman in the process of getting an abortion after six weeks. It could be somebody who advises you, a counselor, it could be any number of things.

Heather Cox Richardson:

But what happened was that when the people who opposed SB8 tried to ask the Supreme Court to stop that law from going into effect on an emergency basis because it would cause so much trouble, the Supreme Court said that it couldn’t stop the law. It didn’t stop the law because it was such a confusing new system of trying to put a law into effect. And with that, what that does is it says to scholars that this mechanism of saying, “Oh, no, it’s not the state that’s hurting your constitutional right. It’s not the state that’s going up against this provision that you should have this constitutional right.” It’s essentially vigilantes. It’s people on the street certainly applies to this law SB8 from Texas. But tell me what constitutional right could not be overturned by vigilantes. And for me, what is always front and center as a reconstruction scholar is voting.

Heather Cox Richardson:

This is exactly what happened in the 1870s, 1880s and 1890s for black Americans in the South, federal government said, “Yeah, sure. You have the right to vote. You should be voting. Look, it’s in the constitution.” And vigilantes on the ground said, “Yeah, go ahead and give it a try.” And look where we ended up. And so this SB8 is, I think I called it the biggest red flag in the red flag factory, because it is an assault on all of our constitutional rights by individuals on the streets. And if you look at what’s happening currently in school board meetings among election officials-

Joanne Freeman:

It is part of a larger wave of modes of encouraging vigilante and in a sense, privatizing state functions, encouraging individuals through violence, through intimidation, through legal suits, through any means possible of stepping in the way of fundamental rights, of parts of civil society that should be functional and should be able to proceed with debate and compromise. And there are systems in place for these things to be carried out. It is totally, and as you’re suggesting here Heather, fundamentally part of a sort of vigilante moment in American history that we’re in on so many levels.

Heather Cox Richardson:

What really is at stake here is a wide range of constitutional rights that the federal government has protected since the 1950s.

Joanne Freeman:

I’m glad we’re starting there and we’re going to end there because the issue in and of itself is enormous. And what we’re seeing now is even bigger than the issue in and of itself.

Heather Cox Richardson:

All right. So let’s get into the history of abortion, which is again, a really cool history.

Joanne Freeman:

Basically, in colonial and early America, abortion and generally the legal status of it varied on the type of colony. But the key point that mattered when people were considering when abortion should be allowed or not allowed was this idea of quickening, which means the first perception of fetal movement by the pregnant woman. This is, again, part of a long trend of trying to sort of name the moment when it matters that in a pregnancy, “Oh, it’s when the woman can perceive movement. Oh, no, it has to do with the heartbeat.” This is a long standing question too. But in early America, typically this quickening as it was perceived at the time tended to happen at the midpoint of a pregnancy around the fourth or early in the fifth month. After that point, so after quickening and abortion was basically considered to be a form of manslaughter.

Joanne Freeman:

Before that point, it was considered to be allowable, but as is so often the case in American history, throughout American history but in this period as well, much of what was happening in the realm of abortion was private, women sort of helping each other, midwives actually coming forward with a variety of different herbs and things that women could take if they wanted to induce an abortion. There are a variety of different herbs, which I just need to say because they’re so wonderful sounding as words, black draught, tansy tea, oil of cedar, ergot of rye, mallow and motherwort. Among the many things that you could take in early America herbs that were referred to at the time as “taking the trade”, meaning using these substances to induce an abortion. And in advance of quickening, they were legal, generally speaking, they were socially acceptable.

Joanne Freeman:

Now, it’s worth noting that different colonies that were colonized by different countries had different understandings and assumptions about abortion. So in British colonies, abortions were generally legal if they were performed before quickening. French colonies, they were performed, abortions were performed despite the fact that they were considered to be illegal. In Spanish and Portuguese colonies, abortion was illegal.

Joanne Freeman:

So even at the time, it varied, but really from the 18th century until the mid 19th century, abortion was kind of viewed as socially unacceptable but allowable, it happened, it wasn’t advertised, it was sort of veiled hints were made about it. In advertisements for substances so that women could make use of them, again, if they wanted to induce an abortion, so that people weren’t saying, “Here, buy this and you can have an abortion.” And yet the message was clear. A great example of that is an ad that I found in poking around this last week from a newspaper in 1810, actually this one happens to be in Maine. And it was advertising a patent medicine called “Dr. Ralph’s Aromatic Female Pills”. And the description of the pills concluded with the warning that the pills were “conducive to the health of married women”. And then the next three words were underlined, “unless when pregnant, at which time they must not be taken as they would most certainly produce miscarriage”. This was a substance that was, although not being officially advertised that way, clearly intended to be something that women could take if they wanted to produce a miscarriage.

Heather Cox Richardson:

And I think it’s also important to note here that the concept of quickening is of course self-reported, and it’s quite late and it can be quite late in a pregnancy. And that there is this sense to me anyway, that there’s an awful lot of sort of a woman’s world regulation of reproduction in the 19th century, at least, which is my period, that the statistics and sort of saying, “Well, is it acceptable or not?” Well, a lot of what’s going on is simply never captured in the newspapers because women are not writing necessarily in columns what they’re doing.

Joanne Freeman:

No. Some of where you see that actually, I mean, not only is it a woman’s world as far as women helping women do this, but midwives are often the people involved in this. So it’s women helping women, and women themselves are engaged in this process. It really is women sort of as a team helping each other through this kind of a moment.

Heather Cox Richardson:

The other thing that does show up in the newspapers or in advertisements is the fact that it’s dangerous for women to have blockages, that their [courses], as they were called, needed to flow naturally. So if you had a blockage, there were remedies for stopping that blockage, and that was supposed to be good for your health. Well, come on.

Joanne Freeman:

Blockages. Yeah, no. Well, and these are the many ways in which the precise words were not being used, but the meaning was absolutely clear.

Heather Cox Richardson:

But the relationship between producing children and what that says about society is firmly ingrained by the middle of the 19th century in America. And in the middle of the 19th century, it becomes very tangled with what America going to become and who has control over that reproduction. And nothing really says that more than the way Southern white and slavers thought about the women they enslaved and their relationship to children. They believe that somehow the black enslaved women on their plantations have some secret in which they are destroying the babies they’re carrying, in part because those babies of course are valuable, monetarily valuable to the enslavers.

Heather Cox Richardson:

So when women who are under-nourished, overworked, living in terrible conditions go ahead and miscarry children, rather than looking at the entire situation, the enslavers often just assume that they are in fact aborting their children. And of course some of them almost certainly are, but the point I’m trying to make here is that there is this sort of mystery about what women do with babies. As I think I said earlier, it’s no mystery that when colonial Americans go after people they consider to be witches, they tend to start with women who are around that sort of mystery of birth. And for black women, enslaved black women in the mid 19th century American south, that translates to somehow they are deliberately undermining their enslavers by killing their own children.

Joanne Freeman:

So part of what we’re looking at, even at this early point, it has to do with control, right? We’re talking about the control of people enslaving others. We’re talking about in the mid and sort of late 19th century, the control of male doctors trying to take control of this process away from midwives who really were in control of this before. The American Medical Association’s crusade against abortion was partly a professional move to establish the supremacy of “regular doctors” over midwives. More broadly, anti-abortion sentiment at that point, in addition to being a kind of professional move, it was also connected to nativism, to anti-Catholic and as Heather has already said, to anti-feminism. In the late 19th century, immigration, particularly by Catholics and nonwhites was increasing while birth rates among white native born Protestants was declining.

Joanne Freeman:

So all of this is happening at the same time so that you get people out and out saying like a doctor in anti-abortion leader Horatio Storer saying in 1868, “Will the west be filled by our own children or by those of aliens? This is a question our women must answer, upon their loins depends the future destiny of the nation.” That is quite a quote. Again, it’s an issue of control in a whole variety of different ways bundled together.

Heather Cox Richardson:

On of the reasons we get the rise of the American Medical Association is to take away from women the power to have this control over life and death, as it were to go ahead and change the outcome of births, which in turn changes the outcome of society. So abortion and the issue of controlling reproduction becomes literally about what it means to have a country. And it’s a telescoping of the individual decisions of women with the larger interests of society and comes down to control of those women, control over these incredibly intimate decisions of these women. And just to pop back for a moment to enslaved women, in addition to the power struggle over, “You are enslaved by me, therefore you must bear children, which bring a value to me.” The human side of that always jumps out to me, that medical expertise now tells us that obviously if your body is stressed, if you’re not eating right, all of those things that you’re going not to be able to have a successful pregnancy, that women who are under such extraordinary stresses already are then punished for the fact that their body can’t sustain a pregnancy.

Heather Cox Richardson:

So the issue of abortion and an even greater later on the issue of sudden infant death syndrome, which it’s a problem in the 19th century anyway, but certainly a problem on plantations, becomes blamed on black women for, and this is in quotations, for “smothering their children”. We now know that a sudden infant death syndrome in that era was correlated with malnutrition and with the conditions of the mother and the conditions in which that child lived. And the fact that these women are getting blamed for the physical conditions in which they are enslaved, to me even saying that I can feel the walls closing in on my brain. There is no way to turn that you aren’t at fault for things that are way beyond your control. And it’s being imposed on you, of course, by your enslaver and by the society that supports that. And for me the issue of abortion and sudden infant death syndrome around enslaved black women, to me that encapsulates the system of enslavement really more than any other aspect of that incredibly brutal system.

Joanne Freeman:

And it shows a trend in thinking about and dealing with abortion, whether you’re talking about enslaved populations or other populations, and in a way, you and I Heather have already been doing this by talking about heartbeat laws and quickening. There’s a way in which, for lack of better words maybe I’ll say the establishment, but there’s a way in which abortion conversations happen in which just as you’ve just suggested, the personal component of it is stripped away. And it becomes kind of an abstract conversation about, in your case, you’re suggesting people who are enslaving people and they’re worried about the value of the people who they own, or they claim to own and their children, it becomes a question of when does life start or the medical profession. It becomes part of all of these more abstract questions when what we’re really looking at and you just put it wonderfully by talking about the walls closing in, it’s something that’s profoundly personal. And that often is not included in discussion of abortion by those trying to enforce that kind of control.

Heather Cox Richardson:

Well, and especially for black enslaved women, I think that issue really highlights the mindset of, and I put this in air quotes here, “I own you, therefore I own the process of your reproduction.” And of course the toll on female bodies from having children is extraordinary. And that moment, I think, makes that link really starkly clear.

Heather Cox Richardson:

So let’s move forward then from this sort of amorphous, “Well, yeah, technically we don’t think that abortion is a great idea, but we’re going to rely on women to report when they’re quickening. And we’re going to go ahead and make sure that they don’t have obstructions that are slowing down their menstrual cycles and blockages.” The healthcare issue of abortion in the late 19th century, because that moment is an important one. It brings politics into this discussion in a way that it really hadn’t been before. So the interesting period for the criminalization of abortion in America to my mind is the 1870s. Of course, everything is interesting in the 1870s as far as I’m concerned.

Joanne Freeman:

Not that you’re biased at all.

Heather Cox Richardson:

That’s right. So while people tend to focus on Anthony Comstock who managed to get through the Comstock law in March of 1873, to make it a misdemeanor to sell or advertise any, what they called, “obscene matter” by mail, or any article or thing designed or intended for the prevention of conception or procuring of abortion, a concept that was tied into the nativism that you talk about, the idea that they want white people to have babies. But also tied into the idea of stopping these women from going ahead and taking control of reproduction in America. What is really interesting to me about the 1870s is the politics of abortion because it’s the 1870s that give us abortion really as a political issue. And it’s certainly tied into anti-immigrant sentiments. It’s certainly tied into the concerns about growing power of women, but it’s also tied into party politics because what happens is by the 1870s, there is so much money in advertising for abortion that it can make or break a newspaper.

Heather Cox Richardson:

And in New York, New York City, which is vital for the control of the White House, because if you control New York City, you essentially control New York and New York has, I think it’s off the top of my head, 35, 36 electoral votes, which is a lot more than anybody else. It comes down to whether or not you can go ahead and support a newspaper based on the amount of advertising you can get. Well, the issue in New York City is that the New York City police are connected to Tammany Hall, which is a democratic organization. So they go ahead and they let the democratic papers take advertising from people who perform abortions, but they don’t let the Republican newspapers do that. So the Republican newspapers in 1871 pitch a conniption fit and the New York Times runs this major story on what they call abortionists and it’s this totally lurid, terrible story about, and I shouldn’t actually be as graphic as the newspaper story is, but it is very graphic, let’s just put it that way about what they found in a basement in New York. It’s the sensational kind of story [crosstalk].

Joanne Freeman:

I wanted to say, of that moment that sort of story is highly popular on any number of issues.

Heather Cox Richardson:

Lots of blood in any story like that. And actually, there’s a lot of stories earlier on about self-induced abortions that are also very formulaic, very stock. I mean, they’re always an immigrant girl, she’s always on a backstairs, she’s always on a set of stairs in a back alley, things like that. What happens then is they go ahead and they have this newspaper crusade to go ahead and essentially to undercut the ability of people who perform abortions to take out ads in the democratic newspapers, because what they’re really saying is, “The democratic police officers are in on this, they’re permitting this to happen and we must stop this practice.” And their concern is really not the issue of abortion, and their concern is really not the women who they claim are being butchered in these basement facilities. Their concern is really that if the democratic newspapers continue to be able to support themselves by running these advertisements, the Republicans are going to be hurting in the upcoming elections. So there is this moment right here in 1871 in which politics meets the issue of abortion in a really powerful way. And after that, the anti-abortion movement takes off.

Joanne Freeman:

Let me add in too what you’ve just pointed out Heather with politics and the press, it’s that combination. So it becomes politicized as you’re saying, but it also gets bound up with the partisan press in a way that has a real power as well in this time period.

Heather Cox Richardson:

So increasingly after the 1870s, you get a few before that in the 1860s. But after the 1870s, you’re going to get one state law after another that goes ahead and restricts the right to abortion. About 100 years later by about 1960, the inability of women to obtain safe legal abortions means that there’re between 200,000 and 1.2 million illegal abortions in America a year, which is a public health crisis, especially among poor women who can’t afford the workarounds that wealthier women could do going, for example, to a different country to get an abortion. So it actually in the 1960s becomes a crusade on the part of doctors, not on the part of women who are in the nascent civil rights movement, but of doctors to go ahead and decriminalize abortion and make it a decision between themselves and their patients so that they can simply stop the death rate that they’re seeing around them.

Heather Cox Richardson:

And actually, the women’s rights movement comes into this argument quite late relatively. In 1969, Betty Friedan who’s a leader of the feminist movement is actually at a medical abortion meeting, and she says, and I quote, “My only claim to be here is our belated recognition, if you will, that there is no freedom, no equality, no full human dignity and personhood possible for women until we assert and demand the control over our own bodies, over our own reproductive processes.” And then she goes on to say, “Women are denigrated in this country because women are not deciding the conditions of their own society and their own lives. Women are not taken seriously as people, women are not seen seriously as people. So this is the new name of the game on the question of abortion that women’s voices are heard.” So the doctor started and then the feminist movement takes it up.

Heather Cox Richardson:

So by 1972, about 64% of Americans agreed that abortion was an issue between a woman and her doctor. 68% of Republicans said that, they had always been fans of family planning and 59% of Democrats who had more Catholics among them agreed with that as well. And interestingly enough, while people focus on the 1973 Roe v. Wade decision to talk about how this sparks a backlash, there’s this phenomenal article, but I found a real game changer by Linda Greenhouse and Reva Siegel, who actually points out that the backlash, if you will, it’s actually a front lash against Roe v. Wade. It starts before the 1972 election to pick up this thread of politics. It starts before the 72 election when, if you remember, Richard Nixon was in serious crap after May 1970, when he’s got to deal with a fallout from the Kent State shooting.

Heather Cox Richardson:

And at that point, he really begins to polarize the country quite deliberately, Spiro Agnew calls it positive polarization. And his advisor, Pat Buchanan, who had been on the Goldwater team back in the 1960s, said that the way to go ahead and guarantee re-election in 1972 was to go ahead and pick up Catholic Democrats because the Catholics who were beginning to waiver on the democratic party as it was doing its thing in the 1960s. And the Catholics Buchanan thought could be picked up. Buchanan himself was a Catholic, and he urged Nixon to reach for the Catholic Democrats. So actually in 1970, Nixon had gone ahead and he had directed U.S. military hospitals, and there are tons of them all over the country, especially in the South, to perform abortions regardless of state law. But then in 1971, he changes his course in order to split the Democrats and attract the traditional Democrats to the Republican party. And he uses Catholic language to do that. He cites his personal belief and he’s not a Catholic himself of course, in the sanctity of human life, including the life of the yet unborn.

Heather Cox Richardson:

And even though he and McGovern had very similar positions in the 1972 election, the Republicans dubbed the democratic nominee as the candidate of acid, amnesty and abortion.

Joanne Freeman:

Triple A.

Heather Cox Richardson:

The triple A, yes. And what’s interesting about that is when Phyllis Schlafly, who is a Republican activist at the time makes her first statement about abortion in 1972, this is what she said, and I’m always excited about this because when we talk about abortion because of course now the language of abortion and political opposition to abortion is the language of protecting the unborn. But that’s new, listen to what Phyllis Schlafly said in 72, she said, “Women’s lib” … That is women’s liberation movement. “Women’s lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society. Women’s libbers are trying to make wives and mothers unhappy with their career, make them feel that they are second class citizens and abject slaves. Women’s libbers are promoting free sex instead of the slavery of marriage. They are promoting federal daycare centers for babies instead of homes. They are promoting abortions instead of families.” And that of course becomes the root of this, what is going to become the pro-life movement. The idea that actually abortion is about the denigration of the traditional roles of wives and mothers. And in fact, in 1984, a sociologist actually did the research and discovered that people who are pro-life activists believe that women who were advocating for reproductive choice were denigrating the roles of wife and mother, rather than going ahead and valuing those roles.

Heather Cox Richardson:

So by the time you get to Rush Limbaugh when he’s talking about feminazis and saying that, and I quote, “The most important thing in life is ensuring that as many abortions as possible occur.” The idea of abortion has become a stand in for we are rejecting the traditional roles of American women.

Joanne Freeman:

So that kind of extreme language, extreme claims on the part of people like Rush Limbaugh, brings us in a sense back to something that we were beginning to talk about at the beginning of the show, and which we’ve talked about before which has to do with intimidation, in this case anti-abortion violence. So for example, on May 31st, 2009 at Wichita Dr. George Tiller was shot and killed while serving as an usher at his church. The assailant who is an anti-abortion extremist named Scott Roeder claimed he felt forced to act to save the lives of unborn children. Tiller ultimately made himself the nation’s preeminent abortion practitioner, and he advertised his services, he drew women to Wichita from all over with his willingness to perform late term abortions. He had, before being killed, been shot once before by a different anti-abortion activist who compared abortion providers to Hitler and said that she believed that justifiable force was necessary to stop abortions.

Joanne Freeman:

I’ll actually add to that, that idea of it’s murder and so murder is justified to stop it as a trope that’s used very often by some anti-abortion activists, Operation Rescue which is founded in just a few years before that point, 1986 by Randall Terry, their slogan was, “If you believe abortion is murder, act like it’s murder.” So we’re talking about violence and murder being justified as a way to protest abortion and a woman’s right of choice. After Tiller is killed by that anti-abortion activist, Bill O’Reilly who’s a Fox News channel host comes under fire from a lot of his earlier criticism of Tiller. He called him “Tiller the baby killer” for performing late term abortions. And repeatedly said that Tiller had “blood on his hands”. Within nine hours of Dr. Tiller’s death, Salon magazine had catalog references to Tiller on 29 episodes of The O’Reilly Factor from 2005 to 2009. So again, there’s a campaign, before we were talking about newspapers, now we’re talking about television, but still, a campaign of extreme charges that’s encouraging extreme reactions in people on the question of abortion. Tiller was obviously not the only doctor who performed abortions who was the victim of an attack between 1977. And Tiller’s killing in the United States and Canada, there were at least nine murders, 17 attempted murders, 406 death threats, 179 incidents of assault or battery and five kidnappings committed against abortion providers.

Heather Cox Richardson:

And let’s just point out that they are defending a constitutional right. I mean, that’s what’s at stake here is the constitutional right that was established by the Supreme Court in 1973 in the Roe v. Wade decision.

Joanne Freeman:

A constitutional right being acted against by people threatening or carrying out murder.

Heather Cox Richardson:

And that sounds really quite familiar to what Texas just did in SB8, does it not?

Joanne Freeman:

It certainly does.

Heather Cox Richardson:

Which again, the history of abortion is fascinating. The medical history is fascinating. The societal history is fascinating, but to me, the wrapping together of the protection of a constitutional right with politics and how we have gone from the idea of the federal protection of a constitutional right to the sort of vigilantism you just explained, that’s a conversation that seems to me is getting lost when people are talking about abortion and they’re talking about it from the other two perspectives, the medical perspective or the emotional perspective, or the anti-woman perspective, all of which are incredibly important. If we don’t protect constitutional rights and we turn that over to vigilantes, where do we think this is going?

Joanne Freeman:

Right. I mean, and think fundamentally about the question of rights. When I have fought about the question of abortion before and when I have taught not abortion but about rights to my students in my American Revolution course, one of the things that I teach them about rights is that rights are important not necessarily only because you are planning to insist on them at a given point, but that if you don’t protect them you lose them. I talk about the American revolution as a period when people perceived rights being violated, and that that violation mattered, that violation could lead to other things.

Joanne Freeman:

So that it isn’t necessarily that you need to feel that something immediate and personal to you at a given moment is being violated for you to get upset, the broader level of what’s going on here and what you Heather keep referring to is that there are fundamental rights that are being attacked in fundamentally illegal ways. And those rights matter whether or not I ever chose to, and I didn’t choose to have children and thus need an abortion. The idea that it is my fundamental constitutional right to make that kind of a choice, well that matters enormously to me because of the various sorts of things you’re talking about Heather. The many other rights that are wrapped up in that and that become threatened when this issue is discussed and attacked in this way.

Heather Cox Richardson:

And that I think is, of course, as historians, that’s exactly what we see, the incursion on constitutional rights. And it worries me when we discuss SB8, for example, or when we talk about the issue of abortion, that it’s a wedge to go ahead and remove a whole lot more constitutional rights, and that people won’t necessarily see that because they get tangled into the very important individual and emotional reactions to the issue of child bearing, of women’s power, of children, of what our society should look like, all those hot button emotional issues that are ways to get around the larger, incredibly important issue for our democracy of the protection of our constitutional rights.

Joanne Freeman:

Right. They rouse emotions. And in doing that, and in very deliberately doing that, the fundamental constitutional question of rights gets veiled, gets masked, gets pushed to the side. And obviously, once that happens, there are so many more threats that are going to be opened up for possibility, so many other rights that can be challenged in the same way. So it’s not that the hot button issues aren’t important, but when they’re deployed in a way to create emotion and mask larger conversations, that’s a problem.

Heather Cox Richardson:

Well and you already see this with people saying, “Well, let’s go ahead and use the same mechanism that SB8 does to challenge abortion in a number of other states.” Fine, but it does seem to open the door for a tax on any constitutional right. Instead of saying, “well, you can’t challenge the state because we’ve crowdsourced it-

Joanne Freeman:

Vigilantes can do this.

Heather Cox Richardson:

Let’s just turn our government over to vigilantes because that’s essentially what this new bill and this new concept does. And as I say, I see it as the biggest red flag in the red flag factory.

Joanne Freeman:

So, so much of this moment, so tied into what’s going on in so many ways in American society, in American politics right now of using force and intimidation and violence as a means of politics to override actual democratic politics. That is the moment that we’re in and the abortion issue and the way it’s being raised right now and legislated in Texas, it’s of this moment but it really is a sign of where things can go.