Marjorie Dannenfelser

Abortion and the Supreme Court - Dec. 1, 2021

Marjorie Dannenfelser
December 01, 2021
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Bill Scanlan of the Washington Journal speaks with Marjorie Dannenfelser, president of the Susan B. Anthony List, about Supreme Court oral arguments challenging Roe v. Wade.

BILL SCANLAN: We are joined this morning by our first guest of the hour, Marjorie Dannenfelser, who is the president of the Susan B. Anthony List and has been with that organization since 1993. Marjorie Dannenfelser, welcome to Washington Journal.

DANNENFELSER: Thank you so much, it is good to be back.

SCANLAN: Tell us about this case—this is Dobbs v. Jacksonville Women’s Health Organization—a bit of the background on this and why it wound up at the Supreme Court.

DANNENFELSER: Sure. This case was agreed to, as any case is by the Supreme Court. Four justices had to agree to take this case up. They agreed to answer only one question. And this is, is any limit on abortion pre-viability constitutional. So, is any pre-viability abortion limit constitutional. That is exactly the question the pro-life movement has been trying to get the Supreme Court to take up for quite some time, and therefore has passed all sorts of gestational limits all over the country. A hundred bills, in fact, have been signed into law this year alone—not all gestational limits but many are. And so the question is if the court answers yes in June or July when this case comes down, that there are some pre-viability limits on abortion that they see as constitutional. Then that really strikes at the heart of Roe v. Wade, which is the viability test. If the answer is yes, that is a revolution for Roe. They could overturn it. They could come up with a different test. Our hope is that Roe is overturned and the debate is back to the states where we believe it belong and the democratic process could bring consensus of each state and have that shown in the law. That’s what’s in oral arguments today, just a few steps from where we are here. That’s what they’ll be arguing back and forth.

SCANLAN: Is it important to you, your organization, that the Supreme Court explicitly say in its ruling, and as you mention eventually we will hear that ruling at the end of the term, likely, on this case, that they explicitly say that Roe v. Wade was ruled incorrectly and thereby is overturned?

DANNENFELSER: That is absolutely our goal. It’s what our amicus brief, which forty-five states with 79 women legislators representing those states, that is the case they make, that it should be overturned, that it was wrongly decided, that it took away the democratic process and the ability of women, whose views are not monolithic on this issue, to also argue their views, our views state by state and have that reflected in our laws. And also Attorney General Fitch, that is her argument—that’s the attorney general of Mississippi—her argument is it should be overturned, that it’s a completely unworkable ruling. That view is really reflected in some liberal jurists, progressive jurists from the past, including Ruth Bader Ginsburg. It’s very unworkable and almost indefensible in terms of constitutional law; that there should be some direction from the court, yes, but it should at least be allowing states to…again, in something so delicate and so difficult with such moral consequence for the nation, that it should be allowed into the public arena, and that debate should end up in a consensus in each state, where that are leaders, elected officials that are accountable to those laws, who could be affirmed or voted out depending on the result.

SCANLAN: Some of the reporting of Amy Howe, who covers the court, as you know, for SCOTUS Blog, the headline on her piece: Roe v. Wade hangs in the balance as reshaped court prepares to hear biggest abortion case in decades. In her reporting she said the court went through some 13 conferences in considering whether to take on this case. So it’s clear they know this case pretty well. What sort of arguments do you think they will be drilling down on today in oral arguments?

DANNENFELSER: Well, they could and should be drilling down on the constitutional problems with Roe v. Wade, and the viability test—whether that is a test that is reliable enough to move into the future. Viability, of course, has changed each decade by about a week since Roe v. Wade. It has gone from about 28 weeks to now hovering around 20, 22 weeks. Is that a reliable constitutional standard for abortion law? Almost anyone involved in constitutional law says, no, a shifting standard never is. Undue burden, which was the test in Pennsylvania v. Casey which reaffirmed Roe—the undue burden standard. Also, what does that mean? There is layers upon layers of different tests, and they’ve completely reworked the trimester system since Roe v. Wade. It’s a confusing mess, and it is also, I think, that is what they will be arguing there. I mean, I think that there are a lot of arguments that are taken that are influential but not dispositive, and one is how out of sync we are in terms of laws around the world. Forty-seven out of 50 European nations have laws that limit abortion before 15 weeks. Twelve weeks is the limit in Germany, Norway, Switzerland. Fourteen weeks in France, Spain and Belgium. Now, they don’t have our Constitution, they have different ones. But they are leading moral indicators for the rest of the world. These are progressive, sometime liberal nations that have a more humane law that we should at least be satisfying their standard. Instead our standard is in alignment with North Korea and China, which is no limit up until the point of birth.

SCANLAN: Who is arguing for the state and what do we know about them?

DANNENFELSER: For Mississippi?


DANNENFELSER: The attorney general is the lead, but her solicitor general, Scott Stewart, will be arguing on behalf of the state of Mississippi. He has a, as you might expect, an originalist background. He’s worked for conservative judges in the past. He is very grounded in constitutional law and the perfect person to be arguing this case.

SCANLAN: We’ve got calls waiting for Marjorie Dannenfelser, from the Susan B. Anthony List, the president of that organization. Let's go to Steve in San Jose, California, first up on our Republican line.

CALLER: My perception is you believe that this should be a state's right issue, and you…and I do believe that as well. This should never have been decided by the Supreme Court as a one-size-fits-all. You have areas of the country that are the bible belt areas that do not believe in abortion. In those states, I believe that if you want to have abortions, unlimited abortions, it should be decided by the people in the state. You bring up some very good points that most of the rest of the world, there are limits. I will close with saying that the Constitution provides for life, liberty, and the pursuit of happiness, but the progressives do not believe in life.

DANNENFELSER: I think you raise a good point about what different states will do. In your state, at least at this point, it’s possible that your state will dig in and basically guarantee through the democratic process that abortions will be allowed for quite some time. Same for New York, Vermont, other places like that. There are purple states that will have perhaps like 15-20 week limits. There will be different laws. That actually is a great tradition. It is a great American tradition to handle deep moral issues. I want to be clear on one thing. My organization and I and the pro-life movement think that there are two people in every unplanned pregnancy, the mother and the child. I'm not advocating for a 15, 20 week standard. I'm just saying the better way to handle this issue in civil discourse is to allow people to argue it out, again, and get to consensus and have that consensus written into law. And then if they don't like it, they vote that guy out or woman out and start all over again. That’s how this nation has come to a good place of civil discourse. And just one more thing—Roe v. Wade put a cap on that ability and guaranteed for a most 50 years complete unrest on this issue. No ability to allow that friction, that political friction to work its way out and work its way into consensus and into the law.

SCANLAN: Let’s hear from Calphony from Ellicott City, Maryland, Democrat’s line.

CALLER: Thank you for taking my call. I couldn’t disagree more with your guest and also the previous caller. You know, in terms of states’ rights, I'm always nervous as an African American male living here in America ‘cause I know what that leads to. And I think those people who argue for states’ rights, for example, and I’ll get to my point about abortion. They don't mind blurring the lines between church and state. But let's just say they have an Islamic political class that gains exigency, then church and state would be an issue. But in terms of abortion, what does it matter? No one says that if you are pro-life, you're forced to get an abortion. So what does it matter? I think this is rooted in the Victorian notion of women's bodies. Like this idea that men should have control over women’s bodies. What does it matter of someone decides to terminate a pregnancy. Women could die…

DANNENFELSER: That’s a good question.

CALLER: Women could die giving birth, woman could die carrying [inaudible] pregnancy, they could die through a miscarriage. I think they should have the right to choose what they want to do with their bodies. And the worse thing is, if you disagree, don't date those women or those women should deny sex who want to impose rules on them.

DANNENFELSER: Well let me answer your question, because I thank it’s a good question and it really gets to the fundamentals. First, on your Victorian comment. As a women who has benefited from those earliest feminists who really kicked the doors open for women in politics—Susan B. Anthony, Elizabeth Cady Stanton—all those women saw abortion as a sign of something terrible going on in society. They saw the breaking of the bond between woman and child as a moment of exploitation of women. And it was, and still can be. The reason they saw it like that is they saw two people in every abortion instead of one. That's what I mean about getting down to the fundamentals. If you think that there are two people, once you’re pregnant, there are two people—it is almost inarguable that there are—then that is a moment that we must rise to the occasion and care for both. That is fundamental and vital and at the center of the pro-life movement convictions moving forward, that the law must reflect that humane reality and that our lives in service to women and children have to reflect that humane reality. So look, if I thought it was the equivalent of an appendectomy or even a hysterectomy, an abortion was the moral equivalent of that, then this’d be the stupidest movement that you've ever seen. But if you think that there are two people involved in every pregnancy, this is the greatest human rights movement in many, many years, since the beginning of the country’s founding.

SCANLAN: People have been gathering at the Supreme Court overnight. A tweet here from Colorado Congresswoman Lauren Boebert who says this: “My boys and I attended a prayer vigil last night at the Supreme Court.” Our C-SPAN cameras are at the court and will be throughout the day. And again, coverage today of oral arguments on C-SPAN3. We go to Jackson Heights, New York. Dan’s on the Republican line. Good morning.

CALLER: Good morning. You know, when you study technical fields—my field is brain development. I just wonder—what the hell do people mean when they say viability? Because a lot of what we consider viability, somebody’s alive, the kind of life they would have in our society today would be atrocious. I think it would be a real torture for someone to be forced to live in their condition in the kind of world we have today. So the question for me, is who do you really care about? Some abstract principle or the individual that is produced from such a union? I think really the emphasis of the discussion should be on birth control, should be on how to present the repeated appearances for abortion. We should realize that an abortion is a way of ending a terribly suffering life in many cases because in the early years of life the misery that you’ll have the rest of life is getting printed in.

SCANLAN: Alright, Dan, we’ll hear from our guest.

DANNENFELSER: There are a couple of questions packed in there. One is about viability and the worth of the life that is, perhaps, suffering. In some cases that is right. It is not even close to a significant percentage of abortions, but yes, there are those cases. A couple of things to consider about viability. One is… And the reason that standard came about was, okay, maybe it’s alive, maybe it’s a human being if it can be self-sufficient, if it’s on the table and it could live without the umbilical cord. Well obviously the baby cannot live and just sit there—none of us are completely self-sufficient. Many of us feel nonviable often because we always need the help and support of humanity around us. But also look at the suffering child within the womb, whether it is viable or not, who you say is going to have a suffering young life. The emphasis now in medicine is to try to treat and help unborn children, even in the womb with surgeries that are so miraculous that they have changed and altered lives for the better because those corrections have happened in surgery in the womb. That is the approach when we see a suffering child. How do you relieve the suffering of the child? Well, you can relieve some thing by killing the child, which also has affects that lead to all sorts of other suffering among the survivors of that death. But what we do when we see them both as people, which they are unarguably two human beings, we do all we can to address the needs of both. I'm very much a part of the special needs community and have a daughter with special needs. If you have lived in that world you can see it is a dangerous thing to comment upon the value of children who are imperfect. They make us better.

SCANLAN: Jackson Mississippi’s Clarion Ledger has this headline this morning: “Even if we win, we lose. Abortion access already limited without Roe challenge.” Marjorie Dannenfelser, this as a case, the one before the Supreme Court today, has already been blocked by two courts, a federal court and the district court—I mean, the circuit court. What makes you think—the appeals court I should say—what makes you think it will have success before the Supreme Court this term?

DANNENFELSER: I'm a little unclear about what that comment meant. Maybe they mean there is not enough abortion clinics in Mississippi. I don’t know what that meant. But right now, under Roe v. Wade, the 15-week limit cannot stand. It could only stand if Roe is set aside. It doesn't pass the viability test that Casey has interpreted Roe as having. So the reason I think that there’s a possibility now is because of the march through the years, of all the states passing the most ambitious laws that they could—gestational limits, heartbeat, 20 weeks, based on the pain of the child at 20 and 15 weeks—none of them have been allowed to go make their way into the law because of Roe. The frustration over almost half a century of this has led to some understanding among jurisprudential experts and constitutional lawyers that Roe was very badly decided. It created more civic problems than it helped set aside. That frustration has led to more Supreme Court justices who see the constitutional nature of this question, are really concerned about getting it right, we hope. And so now that we have three additional Supreme Court justices that have a view that we think is consistent with the Constitution, we think there is more hope that they would uphold a 15-week limit in one state in this country, and therefore setting aside perhaps for other states the ability to do the same.

SCANLAN: Let's go to Tammy on the Republican line. Lenoir, North Carolina. Hi there.

CALLER: I’m just calling to say that I don't agree with abortion. I think abortion should be made illegally.

SCANLAN: You are getting a bit confused, turn your television down. Mute your television. Go ahead with your comment.

CALLER: [to person at home: Turn the TV down a little bit, honey.] Sorry about that.

DANNENFELSER: That’s okay.

CALLER: I think abortion should be made illegally.

SCANLAN: Alright, we got your point there, Tammy. We’re going to move on. We’re going to go to Sparta, New Jersey. Next up, Richard on the Democrat’s line.

CALLER: Hi, good morning. You know, if you wake up in a country where abortion is legal, you’re probably in a Western democracy. If you wake up in the morning and you’re in a country where abortion is illegal, you’re in a dictatorship, a third-world dictatorship, something like that. You can look that up, by the way. The other thing is I'm curious because the Bible says in Genesis that a person is a person when they take their first breath. Genesis 2:7. I don’t understand why people don’t just go by that. You know, for thousands of years that’s been the case. People are not people until they take their first breath. Now, I do have a question, actually, for you. You said a couple of times there are two people involved, okay? So it’s a person. So you know, if a baby dies after a week, there’s usually a funeral. I have never heard of anybody going to a funeral for a fetus. If it is a person, then you’re gonna have a funeral for it. Have you ever gone to a funeral for a fetus? Do you know anybody who ever has? And why don’t you tell me the difference, why you don’t go to a funeral for a fetus?

SCANLAN: Alright, Richard.

DANNENFELSER: Yes, I actually have gone to more than one funeral from women who have had miscarriages, especially when it was later in the gestation of the baby. I mean, it’s almost undeniable to most people when they see a miscarriage at six or seven months, that’s it grief. There is a grief. There's also grief over abortion. One thing I want to point out just in case there's any misunderstanding, no one is going to wake up in America and find abortion illegal as a result of this case. The only result that would evolve from this case that we hope is that Roe is overturned and states have the ability to pass their own laws. And perhaps get some more humane laws on the books. That would be the case. There is this misnomer and has been for a long time that somehow overturning Roe outlaws abortion. Absolutely not. It just opens the doors to democracy in every single state.

SCANLAN: What is your group’s view on allowing abortions in the cases of rape or incest?

DANNENFELSER: Well, I obviously think that every single life deserves attention and focus and love, just like the mother. But I also know there are a lot of differences in opinion in each state. We’ve supported candidate who have used, that have those exceptions all the time. I think those are matters of -- they are small percentage cases. Cases that matter, yes. But they are certainly not the nexus of the debate. It is an important debate for states to have.

SCANLAN: Your group, the Susan B. Anthony List, is focused on getting candidates elected statewide and nationally that support more restrictions on abortion. How successful have you been over the years? As I mentioned, you’ve been with them since 1993, correct?

DANNENFELSER: Quite a while, yes. We’ve been very successful over time. It’s really the reason why, part of the reason why we have this case today, in conjunction with a lot of pro-life activity all across the country. But without electing senators, without electing presidents, without electing governors who can first of all the presidents nominating Supreme Court justices, confirmed by the Senate, and then now a Supreme Court that would hear this particular case, requires all of those people I just mentioned getting election to public office who believe in the sanctity of human life and who believe in restoring and returning this debate back to the states. We’ve been very successful over time. And in fact, the last election, one of the little-known things, is a record number of pro-life women we helped elect to the U.S. Congress, 31 women who are pro-life were elected to the U.S. Congress. That’s a rising tide and really points to this reality that abortion opinion among women is not monolithic. In fact, women in large majority percentages think abortion should be limited after 12 weeks. So this is not your mother's ‘70's and ‘60's women's movement anymore. This is a time when women are elected who have divergent views and we deserve to be heard.

SCANLAN: Let's hear from Joy in Coventry, Rhode Island, Independent line, go ahead. Joy, you're on the air, go ahead.

CALLER: I was just calling to say that don’t people realize that this isn’t really going to stop in a lot of states, because there is still going to be backyard abortions no matter what’s gonna happen. It is not really going to stop no matter what happens. What do you think about that?

DANNENFELSER: I think to the extent that is the case, we better get to those women and serve them and their children quickly. In other words, if you see an egregious human rights violation of any other stripe, at any other time in history and you said that is still going to continue so we might as well not do anything about it, that would obviously be unacceptable. What we do is go in and make sure that human rights abuse stops and that the people who are suffering get served. Even if you don't see that as the case early on in pregnancy, which I do, it is easier to see it at least at 15 weeks, which is the moment that we’re talking about right now what the Supreme Court will be ruling on in June after oral arguments today. Anybody who has seen the 15 week baby on the sonogram on the refrigerator could see the baby often is sucking their thumb. They’re figuring out…they know at that point if they are left or right-handed. They respond to touch, they respond to taste, they respond to pain, physical pain. These are people that are small. That is why we speak in terms of human rights when we talk about these children while we are considering the needs of their mother.

SCANLAN: Marjorie Dannenfelser, president of the Susan B. Anthony List, great to have you with on Washington Journal.


"Dannenfelser on abortion and the Supreme Court." C-SPAN video. December 1, 2021. https://www.C-SPAN.Org/video/?516374-2/marjorie-dannenfelser-abortion-supreme-court.

Washington Post Live. 2022. "Marjorie Dannenfelser on Supreme Court decision to overturn Roe v. Wade." Washington Post, June 27.