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From New York Instances Opinion, that is “The Ezra Klein Present.”
The Dobbs choice, 2022. The Supreme Courtroom overturns Roe v. Wade. It fingers abortion, in idea, again to the states. What would you’ve gotten thought then the consequence of that call on abortion can be now? I learn one prediction, then, that about 25 p.c of ladies who want an abortion can be unable to get one. That appeared believable to me.
However the most effective estimates we now have now counsel the variety of abortions within the nation, the speed of abortion, has gone barely up, not down. That’s true, although abortion has been harshly criminalized in quite a lot of states, true although we’ve seen court docket rulings as excessive because the one in Alabama that simply dominated fertilized embryos utilized in I.V.F. processes are kids and should be handled as such.
What Dobbs has executed is stranger, I believe, than what was anticipated. What it has executed is bifurcate America. Pink states have sharply constricted entry to abortion or tried to. Blue states have sharply expanded entry to abortion or tried to. Each side are attempting to enlist the Supreme Courtroom on their facet. Each side are working in 2024 on a promise that if they’re given management of the federal authorities, they’ll do what the states can’t do and determine the problem nationally in favor of their facet.
Mary Ziegler is a authorized historian and the creator of six books about reproductive rights and the legislation in America. So I requested her on the present to stroll me by means of all of it. As at all times, my electronic mail, ezrakleinshow@nytimes.com.
Mary Ziegler, welcome to the present.
Thanks for having me.
So that is one thing that shocked me, that since Dobbs, the info means that the variety of abortions in America has, if something, barely elevated. Why would that be?
Effectively, I believe it’s a lot simpler to ban abortion than it’s to implement a legal legislation in opposition to abortion. And that’s significantly true in 2024, when individuals can journey throughout state strains. Typically, that distance isn’t even very appreciable. When you’re touring from St. Louis, Missouri, for instance, to East St. Louis, Illinois, that may be a 15- or 20-minute drive.
And naturally, individuals can get abortion drugs on the web and self-manage abortions or handle abortions by means of telehealth. And so, I believe one of many main challenges for the anti-abortion motion going ahead is to determine what an enforceable abortion ban really would contain.
However I wish to maintain for a minute on the strangeness of that outcome. As a result of I take your level. It’s simpler to ban abortion than to implement a ban on abortion. Nevertheless it does look from early information that if you wish to get an abortion in a purple state, it has develop into tougher, and most of the individuals who need that aren’t capable of get it.
So, a small rise right here is attention-grabbing, and it suggests an enlargement of both abortion entry, information of the methods you will get an abortion, one thing, within the states the place it’s authorized and the place there have been strikes to guard it. So, the place has the post-Dobbs world turned out very in another way than possibly the litigants who needed Roe to fall anticipated?
Failing to persuade those who they don’t want abortions and even that abortions are mistaken additionally helps to elucidate why abortions haven’t decreased, proper? I imply, abortion charges replicate, I believe, each provide and demand, proper, how simple it’s to get entry to abortion, but additionally, how a lot individuals want or need abortion. And naturally, Dobbs did nothing to vary individuals’s want or need for abortion. If something, I believe the backlash to Dobbs might have made some individuals really feel extra snug, in the event that they’ve already determined to terminate a being pregnant, that they’re not doing something mistaken.
There have been at all times two arguments within the quest to repeal Roe. And one argument is that abortion is mistaken. And it was mistaken for the Supreme Courtroom to make it authorized. The opposite argument is that it was mistaken for the Supreme Courtroom to insert itself on this course of as a result of this course of ought to naturally be executed on the political facet of the system. So, the choice in Dobbs itself states that, quote, “authority to control abortion is returned to the individuals and their elected representatives.”
And if that was the intention right here — you’ve gotten extra restrictive insurance policies in purple states, extra liberal ones in blue states, some quantity of individuals crossing over or delivery drugs from one place to a different — you may think that working itself out as being high-quality, type of even the meant consequence right here, proper? We simply didn’t need the courts deciding what you could possibly and couldn’t do.
I don’t get the sense that that’s how both facet of the coalition sees it, however significantly not the pro-life facet. How have they skilled this? How have they skilled each what has been occurring by way of the overall abortion charge, but additionally what has been occurring by way of the query of who ought to get to determine this and the way?
Yeah, I believe one factor that’s necessary is, I believe each of those actions actually, for the reason that Nineteen Sixties, have understood themselves as combating for elementary human or constitutional rights. Whenever you hear individuals speak in both motion, they don’t speak as if that is nearly what American voters need. They converse as if the next precept is at stake. So, individuals within the pro-life motion have lengthy stated the phrase “particular person” within the Structure applies from the second an egg is fertilized. And because of this, that particular person has elementary rights that abortion takes away.
And so, I believe whereas Roe was the legislation, many individuals within the pro-life motion imagine that given a good probability, People would perceive what abortion was, and they might come to oppose it and vote in opposition to it. However underlying that assumption was the essential premise that if People didn’t come to that conclusion, in the event that they didn’t notice that abortion was the human rights tragedy of our technology, in the end, it wouldn’t matter, proper? That this was nonetheless a human rights trigger.
Abortion was nonetheless mistaken. Abortion legal guidelines that have been liberal have been nonetheless unconstitutional. That was nonetheless the primary precept. And I believe what we’ve seen since Dobbs has been that American voters defied what pro-life leaders have been predicting and have typically supported abortion rights, together with in conservative states like Ohio, no less than to a higher diploma than individuals within the pro-life motion would have anticipated.
And I believe we’ve seen pro-life leaders say repeatedly in response to that that the ideas that they’ve espoused, proper, the personhood and the proper to lifetime of the pre-born or unborn youngster, as they’d put it, trumps what voters need, trumps majority rule.
In some methods, that isn’t a shock as a result of that was what introduced individuals to the motion within the first place. However we’re seeing, I believe, that rigidity play out far more forcefully post-Dobbs as a result of individuals within the pro-life motion, having been unable to steer voters, are having to search out different methods to implement the insurance policies they’re pursuing.
There was, for a really very long time, this idea that the Supreme Courtroom, in inserting itself into this situation, had blocked the form of political course of that may have led to pure compromise. However after I take a look at what you’ve seen throughout states, after I take a look at the blue states which have liberalized entry, the purple states which have put in varied legal guidelines and are experimenting with much more to constrict entry or criminalize it altogether, I don’t actually see a technique of legislators looking for the messy median voter on this, looking for that form of advanced place the place the fiftieth percentile of the citizens really sits.
What I see is political bifurcation, a splitting of the nation right into a blue America that has a way more expansive proper to abortion than it even had below Roe, and a purple America that has a, in some instances, unbelievably constricted proper, proper? We’ll speak concerning the Alabama I.V.F. ruling. Is that what you see? Is that how you’ll describe it?
No, I believe that’s proper. And in some methods, the bifurcation may not shock us as a result of we see it throughout a spread of points. However I believe what’s placing about it’s that, particularly on the pro-life facet, it doesn’t actually monitor what voters appear to need. There’s a fairly large divergence. And arguably, I believe on the pro-choice facet, too, though the proof there may be much less clear, there appears to be generally a spot between what voters would favor and what the events are pursuing.
And that’s, I believe, raises questions concerning the well being of the democracy, proper? If our abortion politics don’t replicate our abortion views, what does that inform us concerning the well being of the democracy? And I believe that query has been floating round for some time. Nevertheless it’s tougher to keep away from now that we see these fights enjoying out in every state after Dobbs.
So, I wish to choose up on that to have a look at the way in which by which, then, the nation is bifurcating. And let’s start on the purple facet. You’ve seen quite a lot of Republican-led states developing with a spread of methods, each authorized and legislative, to attempt to make it tougher to get an abortion, unlawful to get an abortion, make it tougher to journey for an abortion. What would you say, as you look throughout the map, are the broad classes of technique which have been in style?
So I believe a few of the methods contain merely tightening state bans. So, one development, for instance, is to say purple states are now not going to have exceptions to abortion bans. They’re going to have affirmative defenses, which means when you’re a physician, you really must show you didn’t do something mistaken, somewhat than a prosecutor having to show that you simply did do one thing mistaken.
We’ve seen purple states, too, making an attempt to redefine abortion. The which means of abortion is shifting. We’ve seen upwards of 10 states — I believe it’s 14 or 15 which have modified their definition of abortion in abortion restrictive states since Dobbs. A number of the methods, mockingly, additionally depend on the federal courts.
So, we’ve seen abortion opponents turning again to the federal courts, believing that the U.S. Supreme Courtroom might be sympathetic to their trigger, and searching for to restrict, for instance, entry to mifepristone, a drug that’s used with misoprostol in additional than half of all U.S. abortions, by arguing in federal court docket that the F.D.A. didn’t have the authority to approve the drug.
We’ve seen different anti-abortion legal professionals making an attempt to revive this nineteenth century obscenity legislation, known as the Comstock Act, and repurpose it as a de facto ban on abortions in federal court docket. And I believe that, once more, speaks to this sense that many within the pro-life motion have that what issues is defending a proper to life or what issues is advancing their trigger, and never essentially doing so in essentially the most democratic methods doable.
After which, lastly, I believe we’re starting to see — that is simply beginning — efforts to control what occurs in states the place abortion is authorized, both by limiting journey or by searching for to use the legal guidelines of purple states extraterritorially throughout the boundaries of blue states, though I believe that course of is simply getting began and is prone to speed up within the years to return.
Let’s maintain for a minute on the mifepristone scenario, as a result of this can be a place the place it feels to me that the anti-abortion motion was not fairly prepared for what it was going to face in a post-Dobbs world. And the way in which I might describe it’s that folks, for a very long time, thought that this was a political query. They usually weren’t fairly ready for it to have develop into additionally a technological query.
That, beforehand, when you may ban abortion in a state, then you definately needed to transfer the particular person for them to have the ability to get an abortion, since you may simply knock out all of the suppliers within the state. And that put numerous burden, of price, of mobility, et cetera, on the individuals who would possibly need an abortion. And now you simply have to maneuver a tablet. And you may transfer a tablet right into a state fairly simply. And this can be a place the place blue states haven’t solely liberalized abortion entry, however have additionally made themselves a form of umbrella of abortion entry, reaching into purple states.
So, 17 states have created these defend legal guidelines that shield suppliers from having to cooperate with out-of-state legislation enforcement. A few half dozen of them or so have made it doable for abortion suppliers in blue states to run these mail order and telehealth prescription packages, the place they’ll ship mifepristone and the following medicine it’s worthwhile to individuals who want them in purple states.
And that appears to be a really giant a part of the rationale why the abortion charge, significantly in purple states, has not dropped as individuals might need anticipated, as a result of you will get these drugs.
Are you able to speak a bit about how that has shifted the panorama right here and a bit about what we anticipating to occur within the court docket instances round it?
Yeah, I believe that reducing out entry to mifepristone has develop into form of a preoccupation for the pro-life motion. They usually pursued any variety of completely different methods to deal with it. A few of them appear extra unique and even outlandish. You see, for instance, the group College students for Life, arguing that mifepristone is a ceaselessly chemical and needs to be regulated in that means, in a restrictive means by the Environmental Safety Company.
What does a ceaselessly chemical imply?
Effectively, so that is one thing that’s in additional widespread parlance within the environmentalist world, however, proper, a chemical that by no means goes away, that pollutes our groundwater, that jeopardizes the well being of future generations. That is an argument, I believe, basically, pitched to Gen Z, saying mifepristone is an issue when you care about local weather change, when you care about groundwater, when you care concerning the well being of the surroundings. I don’t suppose essentially that argument goes to work, but it surely’s simply symptomatic of their nearly desperation, of the pro-life motion, in looking for a method that can work with mifepristone.
Courtroom methods appear extra promising, partially as a result of the courts are conservative, proper? And the pro-life motion simply, after all, scored a serious victory in Dobbs. So the technique that’s earlier than the U.S. Supreme Courtroom now argues, basically, that the Meals and Drug Administration didn’t have the authority to approve mifepristone means again in 2000 below this regulation known as subpart H.
And pro-life attorneys argue that’s as a result of that regulation applies to illnesses and would usually require a drug to be extra secure than obtainable alternate options. And pro-life attorneys argue that being pregnant isn’t a illness, and that mifepristone isn’t safer than alternate options that have been obtainable in 2000, like surgical abortion.
However the case goes additional and says even when you, the Supreme Courtroom, usually are not able to say the F.D.A. didn’t have the authority to approve mifepristone, they’re additionally arguing that the F.D.A. didn’t have the authority to elevate a few of the restrictions on mifepristone in 2016 and subsequently, proper, the lifting of restrictions that made telehealth abortion doable. So it’s value emphasizing that even a form of modest win, in some methods, for the pro-life motion could possibly be an enormous deal.
They’re additionally bringing the Comstock Act into this case, arguing that the F.D.A. didn’t have the authority to approve telehealth abortion as a result of mailing abortion drugs is a criminal offense below federal legislation, they argue, due to the Comstock Act. So, there are numerous completely different fairly explosive potentialities on the desk when the Supreme Courtroom hears this case, each for mifepristone, for the form of precedent this might set for difficult the approval of different medicine that get pulled into the tradition wars, and probably, for the revival of the Comstock Act.
And simply to say a phrase on the Comstock Act, that is an outdated legislation not considered that always in trendy occasions that criminalizes the mailing of sure sorts of supplies which might be thought-about lewd, vile, that form of factor. I perceive it primarily as an anti-pornography legislation, however the thought is you possibly can have an uncommon enlargement of it to principally saying mifepristone and issues like which might be indecent.
That’s proper. So, the Comstock Act was first handed in 1873 as an obscenity legislation. The preoccupation of the individuals who handed the legislation was clearly illicit intercourse. So, it bars the mailing of any variety of objects deemed obscene, together with objects that the legislation describes as for indecent or immoral use, together with objects meant, designed or tailored for abortion. So, the legislation hasn’t been a lot enforced in any respect prior to now century. And to the extent it has, it’s been enforced primarily in instances involving pornography.
However pro-life legal professionals level to this language of the statute and say, to start with, that you would be able to’t mail abortion drugs due to the Comstock Act, however what federal courts have stated concerning the which means of the statute. And second, a few of them argue that it’s a ban on all abortions, as a result of they argue there isn’t a abortion, surgical, medical or in any other case in the US that takes place with out an merchandise positioned within the mail. That interpretation, in some methods, is earlier than the U.S. Supreme Courtroom, and we might or might not hear about what they give it some thought by the tip of June.
There’s a means by which the pro-life motion proper now may be very specific in interviews about saying, the most effective factor for us is to take a extra reasonable nationwide place, attempt to make the argument that Democrats are actually selling or backing an infinite proper to abortion. However we’re the place the persons are, and we’re open to 10-week, 14-week, even 16-week. And on the similar time, what’s occurring in purple states is commonly nearly deliriously excessive, that it doesn’t actually make that form of repositioning very simple.
So you’ve gotten these purple states which have actually wrapped themselves round an axle of being unable to even uphold primary life and well being of the mom exceptions. And also you see horrible tales of people that need kids, who don’t wish to have an abortion, however who are suffering life threatening problems, not having the ability to get care till absolutely the final minute, and ending up in essential care due to it. You’ve this very unusual ruling in Alabama, which determined that embryos from I.V.F. are kids.
How do you consider that, the place numerous these purple states, given the selection between having possibly these extra politically palatable guidelines and having, I believe what you would possibly name, a extra embrace of fetal personhood as a purpose and as a coverage strategy, have been selecting the fetal personhood strategy, even if it’s inflicting large, large, large political issues for the broader motion?
Yeah, I imply, I believe that is an instance of how the incentives for the pro-life motion and for Republicans in politically uncompetitive states like Alabama simply don’t align with the incentives for Republicans in politically aggressive races. The professional-life motion for the time being, I believe, is turning into disillusioned with voters, proper, and satisfied that voters usually are not keen to do the proper factor with regards to defending the proper to life, and that due to this fact, the motion wants to search out methods to bypass voters.
State legislators and state Supreme Courtroom justices may very well profit politically from doing a few of the issues that play so poorly on the nationwide stage, proper? So in Texas, when Kate Cox was pursuing an abortion in a case the place her well being was threatened, and she or he realized {that a} youngster she desperately needed had a situation that was prone to be deadly within the first 12 months after delivery —
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There’s no one that loves and needs to save lots of the lady greater than I do. However there’s no outcomes on the finish of this the place I take house a wholesome child lady. And I wish to do what’s greatest for my well being. Sorry, [INAUDIBLE].
— Texas officers not solely denied her the flexibility to have an abortion, however offered her as a liar and threatened hospitals that may have even thought-about treating her, even when she’d briefly had a court docket order allowing an abortion. And I believe the rationale that’s occurring is as a result of in Texas, that form of choice might not play as poorly.
So, a part of what I believe is problematic for Republicans on the nationwide stage is that their allies within the pro-life motion and their counterparts within the states aren’t on the identical web page essentially about both what the proper factor to do is, or I believe, extra importantly, what the politically advantageous factor to do is, which has put Republicans much more, I believe, between a rock and a tough place than they in any other case can be post-Dobbs.
Why do purple states or so many purple states have such slender exemptions for the lifetime of the mom?
There are two causes purple states have slender exemptions. I believe, first, there’s been a form of rising consensus amongst pro-life teams that any life saving process simply isn’t an abortion within the first place, proper? They’ll name it maternal fetal separation or one thing of the sort. So, the concept is that abortions which might be offered as life saving both usually are not abortions or are merely pretexts for abortion that’s elective.
The second motive, I believe, is that there’s a elementary mistrust of docs and, to a lesser extent, sufferers, that you simply see reducing throughout not simply life exceptions, however well being exceptions and even exceptions for sexual assault, once more, the concept being that what individuals who assist reproductive rights need isn’t slender entry to abortion. They need entry to abortion that’s broad. And so, any exception will develop into the exception that swallows the rule.
So, then, you’ll see conservative lawmakers making an attempt to craft exceptions to preclude that from occurring, to stop what they see because the abuse of exceptions. So, the elemental concern, usually, in the way in which exceptions are drafted, isn’t making certain that deserving individuals, as legislators would see it, can use the exceptions. It’s primarily to make sure that people who find themselves not deserving of their eyes can’t. And that’s a part of why you see state exceptions drawn up the way in which they’re.
However are these concepts in style even in purple states? And I say that as an precise query. I genuinely don’t know. I imply, is what simply occurred in Alabama, the place they are saying that these fertilized embryos are kids — I imply, there was, I believed, a really transferring remark in one of many information tales I learn the place a girl who was present process I.V.F. stated, I’ve three embryos. I don’t have three kids, proper? I do know many individuals with embryos, they usually don’t have kids, proper? That’s a really onerous and tough course of. Among the tales which have come out of Texas round well being of the mom exemptions, they’re actually brutal.
Do these replicate the politics in these states? As a result of we now have seen in a bunch of them, Kansas being, I believe, an enormous instance, however Ohio being one other, we now have seen in states that are actually understood as comfortably fairly Republican that when abortion rights are put instantly on the poll, not executed by means of consultant democracy, like legislators and governors, however executed by means of poll initiatives, that they appear to be profitable, regardless of the partisan lean of the state.
Yeah, I don’t suppose they replicate what voters need. I believe they as a substitute replicate the truth that these are states the place politicians don’t have to fret about political competitors. So when you’re a legislator or a choose in Alabama, when you’re a legislator, you’re worrying a couple of major problem out of your proper. You’re not fearful, for essentially the most half, about shedding to a Democrat in a basic election. And also you’re not fearful that voters are going to show you out of workplace when you take a brutal or unforgiving place on entry to care in instances of threats to life or well being. That’s simply not a practical drawback for you.
So, you’re going to be pondering extra about what donors need, what base voters need, what probably major voters need. And so, we now have a dynamic in giant swaths of the nation the place bans are in place politicians don’t really feel accountable to the median voter in the way in which that we would count on, and so, see it as politically advantageous to pursue insurance policies which might be unpopular, even, I believe, in excessive instances, insurance policies that stop voters from weighing in altogether.
I imply, a few of the actually placing examples — once more, we noticed this in Ohio, and we see it elsewhere — contain Republicans making an attempt to make it tougher for voters to even start poll initiative processes, which have been, unsurprisingly, nearly at all times unpopular, proper? When you ask voters if voters wish to have much less energy, the reply is normally no.
However I believe, once more, the rationale Republicans can pursue that form of technique is as a result of they know that even when voters reject the technique, they’re unlikely to award Democrats a majority in a few of these states, nonetheless, as a result of polarization is so deep, as a result of states are so gerrymandered. That’s actually the dynamic. It’s not a query of whether or not there are voters in purple states who assist every thing that’s happening.
I believe the I.V.F. instance is a very potent one. I’ve seen ballot numbers suggesting that between 80 p.c and 85 p.c of People assist entry to I.V.F.. And we’ve seen legislators in Alabama bending over backwards to attempt to do one thing to deal with the results of the court docket’s ruling. However I believe even when they didn’t, I’m undecided that Alabama would see any form of vital change as to who controls it politically.
How a lot does the porousness of borders on this that we have been speaking about earlier, the supply of mifepristone, the flexibility to journey, how a lot does that make this divergence from the median voter and even the minority voter in numerous these states doable? And I’m pondering right here of locations like Texas, which once we speak about Texas politically, we predict huge purple state.
However you take a look at Texas, proper, and there are numerous — neglect Democrats — simply individuals who need entry to reproductive rights there. I imply, you take a look at Austin and the individuals and the businesses positioned there, which is a vital engine of the Texan financial system, Houston, Dallas.
You concentrate on Florida, the place they’ve handed a really, very sharp ban that’s below a court docket battle now. However you consider the individuals who stay in Miami, who stay in Jacksonville, who stay in Tampa, proper? I imply, that’s necessary to the Florida financial system. It is very important who’s in Florida.
However in a world the place the proper obtained its want and you actually shut down entry to mifepristone, you actually shut down the flexibility to depart the state when you wanted an abortion. After which I ponder what it appears to be like prefer to be in these states when you’re a girl or a few childbearing age, and also you face these sorts of risks when you get pregnant or you find yourself in a medically harmful being pregnant.
My spouse and I’ve two kids. My spouse’s pregnancies — and she or he’s written about this at The Atlantic — have been terribly harmful, such that it could not be medically secure for her to be pregnant once more, which is a tragedy in our home. But when one thing occurred, proper, it’s not secure.
However it’s not clear — and once more, she’s written about this, so I’m not talking out of flip. It’s not clear that it could be authorized inside these states — it nearly actually wouldn’t be — for her to hunt care if she have been in that scenario. As a result of when does unsafe develop into really a risk to her life, proper? When does it go that house, and the suppliers don’t really feel they’ll be prosecuted?
So, how a lot does the extremism right here really depend on the loopholes and the porousness of the borders and the outs that blue states have really provided?
I believe it does each in purple states, and even vis a vis how a lot of a backlash there may be in blue states. And we’ve already seen a fairly super backlash to Dobbs, however I believe the rationale reproductive rights aren’t an much more necessary political situation is as a result of each journey and mifepristone have been type of security valves for individuals who wish to terminate pregnancies and may’t achieve this legally in their very own states.
However you possibly can think about if these borders have been now not porous, the sentiment in purple states would shift much more. We’ve seen polling already indicating a shift by way of extra opposition to abortion restrictions in states the place they’re really enforced, somewhat than in locations the place they continue to be abstractions.
And I believe that dynamic can be amplified, even on the nationwide stage. I imply, you possibly can think about the diploma of backlash if there was no choice to get a authorized abortion in New York or California, proper, if the one approach to obtain a authorized abortion was to journey outdoors of the US altogether. I believe the sorts of efforts we see now proceed by the pro-life motion can be unpopular in a means that’s fairly unimaginable now.
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Let’s speak a bit about how the legal guidelines have modified in blue states. What have been the dominant methods? How has what is occurring in blue states or what’s authorized in blue states modified since 2016, 2018, 2020?
So, I believe the adjustments we’ve seen in blue states fall into just a few completely different classes. So, some blue states have lifted restrictions that have been in place, for instance, on who may carry out an abortion. So that you’ve seen blue states attempt to broaden the universe of potential abortion suppliers.
And on the similar time, I believe by means of doing issues like funding abortion funds, which assist pay for journey and different issues that low revenue individuals want when pursuing abortion, we’ve seen blue states introduce poll initiatives, so, basically, elevating protections for reproductive rights from the extent of state statute, say, to the state structure, which we’ve already seen in locations like California and Vermont, and we see a number of different blue states pursuing probably in 2024.
After which, Ezra, as you’ve been mentioning, we’ve additionally seen numerous completely different forms of defend legal guidelines, for instance, limits on cooperation with subpoenas or extradition requests.
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I might be issuing an govt order to the Washington State Patrol to not cooperate in investigations of different states that may violate the Roe v. Wade choice.
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We are able to share the freedoms that we take with no consideration right here in New York with girls all throughout this nation.
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These legal guidelines will make New Jersey a beacon of freedom for each American lady.
And these form of run the gamut from issues which might be much less legally difficult, like defend legal guidelines that apply to docs and others who’re working in states the place abortion is authorized, to issues which might be extra legally advanced, like defend legal guidelines that apply when persons are mailing drugs to states the place abortion is legal.
Is there a means by which Republicans have some extent on this? When you think about this going the opposite course, you consider California, the place they’ve criminalized, outlawed every kind of merchandise they consider as environmentally problematic. Over time, they wish to eliminate all vehicles with inside combustion engines, however you possibly can think about every kind of issues that possibly they stated, we don’t just like the chemical substances on this. We predict that is needlessly polluting to the environment. We predict that is dangerous for local weather.
And I believe individuals in California wouldn’t need purple states to easily start delivery vehicles with gasoline requirements that don’t meet the California requirements. And California would take that to the court docket and attempt to argue it down. So, even when you assist abortion rights, is there a means by which the proper has some extent on this, this direct intervention by means of these defend legal guidelines, to bypass the legal guidelines being made in Republican states? Is that unconstitutional, or does that increase some form of larger drawback that liberals would determine in one other context?
I believe it would. I believe the true reply, by way of the constitutionality, is, we simply don’t know as a result of we’re seeing, I believe, frankly, from conservative and progressive states, strikes to mission energy outdoors of their borders in methods we actually haven’t seen in a extremely very long time.
It’s even the query of whose legal guidelines apply, proper?
If California says we predict our legal guidelines apply as a result of it was our physician mailing the drugs, and we predict this abortion is authorized, Alabama would possibly say, we predict our legal guidelines apply as a result of it was our citizen, and the abortion occurred in Alabama. How do you even resolve that query isn’t actually clear.
So, I imply, I believe it’s honest to say that whereas defend legal guidelines actually are most likely the most effective blue states can do to guard docs and others from authorized legal responsibility, they don’t seem to be actually a defend, proper? They’re not some form of fail-safe safety, and that the closest factor, actually, we now have to civil disobedience post-Dobbs is docs who’re taking the riskiest selections below defend legal guidelines, understanding full nicely that they’re working in a authorized grey space. And it’s a fairly large mess as a result of it’s not simply states with defend legal guidelines which might be doing this.
So I believe we’ve seen one other state, Missouri, basically suing a Deliberate Parenthood, searching for an injunction in opposition to Deliberate Parenthood within the state, claiming, partially, that Deliberate Parenthood was breaking the legislation by helping minors to journey out of state to locations the place abortion was authorized.
That is one more instance, I believe, of the concept that it was extraordinarily naïve, if not dishonest, for the Supreme Courtroom to say, eradicating Roe from the equation will trigger issues to simmer down and facilitate compromises, as a result of one of many new battlefields, after all, that’s emerged is that this query of, how can we resolve these conflicts of legislation when each states declare the ability to resolve the query? And the way can we resolve the constitutional questions at stake when you find yourself speaking about regulating individuals’s speech, regulating individuals’s journey, and simply primary questions of elementary equity, when nobody is aware of forward of time hose legislation is even going to manage the scenario.
Are there good analogies to this type of factor? One of many doable ones that got here to me was, there’s been a interval of robust liberalization of marijuana legal guidelines, even if marijuana remained federally scheduled as an unlawful and extremely managed substance. And in the long run, it doesn’t appear like there’s been an enormous federal state drawback over that. However is there one thing this appears to be like like in latest American historical past?
Not likely, no. I imply, I believe I considered the marijuana instance, too, however to your level, there hasn’t actually been a muscular federal effort to attempt to stamp out state legal guidelines that take a extra liberal place on marijuana, nor have there actually been interstate conflicts, proper, the place you see California or New York with defend legal guidelines saying, we are able to shield our individuals, even when they’re mailing drugs to your state, and also you conversely have attorneys basic in locations like Idaho and Alabama saying, we are able to prosecute you when you assist somebody journey to a state the place abortion is authorized.
The type of conflicts between states, between state and federal authorities, being this excessive stakes and this seen, I haven’t seen one other instance of in up to date U.S. historical past.
There had been for a while a really robust effort within the purple states earlier than the Dobbs choice to constrict entry by principally making it unimaginable to be an abortion supplier. Such as you had stated proper from the start, there’s a provide and demand facet of this. Are you able to speak concerning the methods by which blue states have been making an attempt to vary the availability?
Yeah, I believe blue states have been making an attempt to vary the availability, I believe, in methods each sensible and symbolic. So, for, actually, many years, there have been issues about shortages of abortion suppliers, partially due to fears of excessive insurance coverage charges or authorized legal responsibility, no less than, nuisance lawsuits, fears of violence or harm to clinics, and even fears attributable to the homicide of physicians prior to now. There’s been longstanding issues of what’s known as the graying of the career, proper, that lots of people who carry out abortions have been performing abortions for a very long time and are older.
I believe you’ve seen blue states attempt to destigmatize the supply of abortion, basically to say, not solely are we going to make it doable for extra individuals to carry out abortions, we would like physicians to really feel that what they’re doing, in the event that they’re performing abortions or different well being care suppliers, isn’t one thing that’s mistaken or deserving of disgrace and even seen as an issue on this state. I believe you’ve seen that push far more visibly since Dobbs, although I believe these issues concerning the graying of the career are for much longer standing.
I wish to spend a second on that as a result of I do suppose tradition issues right here. And when you consider the sweep of abortion politics and tradition, on the Democratic facet, I believe it’s very placing. Joe Biden, who many now know is a really pro-abortion rights president, when the unique Roe choice comes down, he opposes it. He’s a Catholic Democrat who says this can be a very, very onerous situation for him, that he’s personally pro-life. Over the course of his profession, he evolves on that.
However you consider the Invoice Clinton presidency with the concept that abortion needs to be secure, authorized, and uncommon, it was type of the Democratic — “consensus” could be a powerful phrase, however actually, its political positioning, the celebration’s political positioning to say that abortion needs to be one thing you will get, however type of shouldn’t be ok with, proper? We would like as few of them as doable.
And now, I believe that Democrats are far more snug with the concept that abortion is a alternative that is sensible when individuals select it, proper? That there’s so much much less discomfort with it than I really feel like there was even 15 or 20 years in the past in Democratic politics. And that additionally most likely adjustments how individuals really feel about moving into the work, how individuals really feel about going to get an abortion. Do you suppose that is vital by way of consequence? Or do you suppose it’s all symbolic?
No, I believe it could possibly be vital, particularly as a result of there’s some indicators that possibly it’s a generational shift that youthful People who are typically extra progressive on quite a lot of points associated to, actually, race, sexuality, and abortion, too, might really feel extra strongly about this. And that’s not shocking as a result of prior to now decade or so, we’ve seen the appearance of abortion storytelling, proper, the place individuals who’ve skilled abortion actually element their tales in methods which might be destigmatizing.
You’ve seen an assault on issues just like the Hyde Modification, which bans Medicaid reimbursement for abortion, was lengthy a topic of bipartisan settlement, has now develop into a goal for Democrats. And also you’ve seen, too, I believe, the concept that abortion isn’t a standalone situation for Democrats is a part of what they’d name a reproductive justice agenda that features issues like I.V.F. contraception, youngster care, the means to boost kids in a wholesome surroundings.
And I believe all of that has helped to destigmatize the problem for Democrats. And destigmatizing it’s vital, I believe, each within the sense that individuals who have abortions usually behave in another way after they suppose that they’ll be condemned for doing so. And I believe it could have an effect on who’s keen to carry out abortions within the first place and what sorts of authorized dangers they’re keen to incur.
It’s additionally, I believe, vital on entry to abortion later in being pregnant, significantly when so most of the tales we’ve been listening to about individuals with needed pregnancies who’re experiencing stillbirth or miscarriage and infrequently life threatening penalties are desirous about ending these pregnancies, or have already got nonviable pregnancies fairly late within the sport, proper, usually previous week 12. And also you’re seeing, I believe, stigma declined due to that, too, as a result of there are actual tales being advised about who’s having abortions late in being pregnant.
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I can’t adequately put into phrases the trauma and despair that comes with ready to both lose your individual life, your youngster’s or each. For days, I used to be locked on this weird and avoidable hell. Would Willow’s coronary heart cease, or would I deteriorate to the brink of loss of life?
That form of storytelling I believe adjustments how individuals view the legislation, generally adjustments how they vote. So I don’t suppose you possibly can underestimate the significance of that.
You actually do see that in polling proper now. So, there was a November ballot by The Wall Road Journal and NORC, which discovered that 55 p.c of respondents stated it needs to be doable for a pregnant lady to acquire a authorized abortion if she needs it for any motive. And that query is necessary. They’ve been monitoring that for the reason that ‘70s. And that’s the highest it has ever been.
So there was some form of public opinion change right here, the place it isn’t simply that folks don’t like Dobbs, or it isn’t simply that folks don’t like what they see occurring in purple states, however the precise stage of assist for a lady’s proper to pursue an abortion based mostly on their very own estimation of their circumstance has gone considerably up.
I believe that’s proper. And I believe a part of that’s attributable to the truth that individuals are actually experiencing the fact of a United States with no proper to decide on abortion. So, previous to Dobbs, I believe individuals’s expertise of this query actually concerned abstractions, proper? Are you pro-life, or are you pro-choice? Are you for a proper to life, or are you for a proper to decide on? Hypothetically, in an alternate universe, the place abortion could possibly be criminalized below all or most circumstances, do you suppose that may be a good suggestion. However no one actually noticed in tangible phrases what that meant, what that meant for individuals who have been searching for abortion, and admittedly, for individuals who weren’t searching for abortion, proper? Individuals who have been experiencing miscarriage or stillbirth, possibly individuals who have been pursuing I.V.F.. And so I believe the fact of how a ban can be carried out, what meaning in sensible phrases has most likely modified some individuals’s minds.
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What federal laws have Democrats rallied round and what federal laws have Republicans rallied round?
Effectively, we now have federal laws, which, I believe, in each instances, may be very unlikely to go anyplace. Democrats actually pre and post-Dobbs have been rallying round a legislation known as the Ladies’s Well being Safety Act that may rule out quite a lot of abortion restrictions and bans.
Traditionally, you’ll have seen anti-abortion teams rallying round a Life at Conception Act that acknowledged rights or personhood as starting at conception or possibly a federal six-week ban or a federal 15-week ban, which Lindsey Graham had floated at varied factors, or a federal 20-week ban.
I don’t suppose that the vitality on the pro-life facet is absolutely in Congress in any respect. I don’t suppose there’s numerous religion that Congress can do something. And I believe that’s true on the progressive facet of issues as nicely. So I believe whereas there are these items of laws that each side have embraced, they primarily function as symbols proper now, not as legal guidelines that I believe anybody imagines going anyplace within the close to time period.
One motive I believe that’s true is that any legislation you possibly can actually think about right here is topic to the filibuster. You’ll be able to’t do an enormous abortion invoice by means of finances reconciliation, as a result of it’s not a finances invoice. And so, no one’s going to have 60 votes on something like this.
One thing you’ll hear from the anti-abortion facet is that the legislation that Democrats have rallied round to the extent they’ve a symbolic piece of laws that Joe Biden has endorsed, that Chuck Schumer has endorsed, that Hakeem Jeffries has endorsed, that’s much more expansive than the pre established order, that it goes a lot additional than Roe does, and that in comparison with numerous the payments that Republicans would possibly rally round, if Trump does endorse a 16-week invoice, issues like that, that it places Democrats out of step with public opinion in a means that Republicans are embracing extra compromise laws, and that that’s the huge alternative for Republicans politically right here.
Is there one thing to that argument, in your view? Like, substantively, does what Democrats wish to go go far past Roe? And politically, does that create an issue for them?
There’s a chance, actually, that Democrats are extra progressive on reproductive rights than American voters are. I believe polling on a few of this has been just a little murkier post-Dobbs, for instance, on what People really feel about abortion after 12 or 15 weeks. I believe, actually, the problem for Republicans and why that isn’t a profitable argument — and we now have seen some proof that it will not be a profitable argument when Glenn Youngkin introduced this up as a possible profitable technique in making an attempt to assist his celebration take management of the Virginia state legislature.
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A brand new $1.4 million advert purchase from Governor Glenn Youngkin’s Political Motion Committee is making an attempt to vary the narrative on abortion rights.
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Right here’s the reality. There isn’t a ban. Virginia Republicans assist an inexpensive 15-week restrict with exceptions for rape, incest and lifetime of the mom.
It’s as a result of it’s unclear to voters the place the Republican Celebration is on this, as a result of on the similar time that you’ve some nationwide Republicans saying, we’re keen to embrace a ban at 12 or 15 or 16 weeks, you’ve gotten pro-life teams and state lawmakers saying, that’s not almost sufficient, and we have to tighten the bans that start at fertilization that we have already got, or that any legislation that allows abortion previous a sure level violates the constitutional rights of the fetus or unborn youngster.
So, I believe voters in Virginia have been uncertain whether or not no matter stopping level Republicans have been proposing was actual or whether or not it was, actually, a form of step towards a extra absolute ban. You noticed a few of this in Ohio with voters who’re considerably conservative. They felt that their choices have been actually between an absolute ban or a sweeping safety for abortion rights. And whereas they won’t have been totally snug with both of these choices, they have been much more snug with the sweeping safety for abortion rights.
And that, I believe, is the issue for Republicans that they might not be capable of set up with voters that they’re really keen to cease at no matter level they’re presenting because the form of consensus answer. I don’t know if anybody believes that, partially as a result of the Republican Celebration is aligned with the pro-life motion. And the pro-life motion is vocally not keen to cease at that time.
So, there’s been numerous reporting about Donald Trump saying, privately, no less than, that he thinks possibly he would endorse or he would assist a 16-week abortion ban, which is extra reasonable than what numerous Republican states have executed, extra reasonable than what numerous Republicans have executed, can be understood, I believe, as him type of transferring to his celebration’s nearly left on the problem.
However even when that have been true — and he has not come out and executed that — there’s nonetheless an amazing quantity a Trump administration may do that may sharply constrict abortion entry, even when his acknowledged place was a 16-week ban.
So I used to be studying the Mandate for Management, which is that this huge, lengthy doc launched by the Heritage Basis, that’s understood broadly, given who has written it, as a information to how a Trump administration would possibly govern if it comes again into energy in 2025.
And when you take a look at the part on the Well being and Human Providers Division, it begins by saying that below Trump, H.H.S. was devoted to serving, quote, “all People from conception to pure loss of life.” It goes on to say that purpose primary is defending life, and the secretary ought to pursue a strong agenda to guard the elemental proper to life.
It goes on to say, abortion drugs pose a single biggest risk to unborn kids in a post-Roe world. It says the F.D.A. ought to due to this fact reverse its approval of chemical abortion medicine as a result of the politicized approval course of was unlawful from the beginning. It goes on to supply a bunch of different methods it may possibly constrict that.
And so you could possibly very a lot think about a situation by which Donald Trump is working for workplace on one thing that will get reported as a extra compromised place, proper? The form of factor that folks have been assuming would possibly occur if the Supreme Courtroom removed Roe. However really, in workplace, by means of the executive state, what is occurring is a really, very sharp constriction from the place we are actually utilizing rule-making and company authority like that.
Yeah, and that’s what I believe you see pro-life leaders anticipating, proper? And mockingly, anticipating very publicly, within the pages of The Washington Put up and New York Instances, proper? So, Roger Severino, who served within the first Trump administration in a particular division of HHS, has advised The Washington Put up that he absolutely expects Trump to make use of govt energy to restrict entry to mifepristone.
It’s attention-grabbing, too, that we’re listening to this not simply from Roger Severino, however from individuals like Gene Hamilton, who was one of many authors of the Mandate for Management. Hamilton isn’t even actually a pro-life determine. He’s greatest often called Stephen Miller’s quantity two within the household separation coverage and architect of immigration coverage within the first Trump administration.
However he, too, has outlined comparable plans for limiting entry to drugs and reviving the Comstock Act that may primarily depend on who’s going to be the secretary of Well being and Human Providers, who’s going to be within the Division of Justice, who’s going to be within the F.D.A., somewhat than who’s going to be in Congress or what voters suppose. And so, fairly clearly, these are the plans the pro-life motion has in thoughts.
They usually’re fairly clearly hoping, as Jonathan Mitchell, who represented Trump in one of many disqualification instances from Colorado earlier than the Supreme Courtroom, stated, I believe a few of the pro-life motion are hoping that Trump doesn’t say something about this till after the election as a result of the concept that he would favor a 16-week ban I believe is much more politically palatable than a few of these potential workouts of govt energy which might be on the desk. And the query of whether or not they’re politically life like is an attention-grabbing one, too. I believe some individuals have pointed to the truth that Trump blames the abortion situation for midterm losses for Republicans, basically suggesting that it’s not his fault, or it’s not due to his unpopularity. It’s due to the place the G.O.P. has staked out on abortion, that Trump is, actually, extra reasonable than his celebration on abortion.
And which will or will not be true, however the type of attention-grabbing query is how in another way Trump would suppose or act if he can now not run for re-election, proper? Then what are the incentives? Are the incentives to please the bottom and discover a few of these makes use of of govt energy and of the executive state? Or is it to tack extra to the middle to please the median voter? And I don’t suppose you possibly can safely assume that Trump would wish to please the median voter when he’s desirous about his post-presidential future, somewhat than his re-election possibilities.
And actually, how a lot he would even care or find out about what is occurring in his personal administrative state. I imply, it has not been a trademark of Trumpian governance to have a really deep, private involvement within the rulemaking occurring throughout the companies. And I believe the entire idea of those individuals and the second Trump administration is you’ve gotten a way more aligned Trumpist conservative cohort coming to the companies with a plan from the start.
And so, you’ve gotten a form of all-front assault proper on the launch that will get much more executed. However what Donald Trump thinks about a few of this, I believe it’s really by no means been an excellent information to what’s going to occur.
After which, what may a Biden administration do, proper? It’s not that compelling a pitch to say, elect us, and we’ll attempt to fail to go this piece of laws. However presumably, they’ve executed numerous what they will do administratively. I imply, they’ve been very, very upset about Dobbs and have been very clear on what facet of the divide they fall on.
So, are there main strikes they’ve made that the risks can be unmade? Are there main strikes they haven’t made that they may in the event that they got here again into energy? Like, how do you see the substantive questions right here of who wins in 2024?
So, I believe there are some limits on what the Biden administration can do to advance reproductive rights, in different phrases, to go form of previous the place we are actually, partially as a result of the U.S. Supreme Courtroom is conservative, and partially, as a result of the filibuster has form of rendered Congress form of ineffective on this regard. However the Biden administration, I believe, remains to be form of probably a firewall by way of what the U.S. Supreme Courtroom might do.
You’ll hear strategies that, for instance, there’s nonetheless pointless restrictions on mifepristone, that the F.D.A. may and will revisit these. And there could also be steps like that taken in a second Biden administration. However I believe the distinction by way of the potential choices for Trump is that Trump would extra possible be aligned with the conservative Supreme Courtroom, clearly, than the Biden administration would. So I believe Trump could be extra aggressive in making an attempt to make use of the executive state, believing that the Supreme Courtroom can be much less prone to cease him than Biden could be.
However I believe in each instances, what you’re actually taking a look at is how govt energy may facilitate outcomes that the Supreme Courtroom goes to dictate or may block outcomes the Supreme Courtroom goes to dictate.
I ponder if, once you peer into the mist of the long run, you see any path in the direction of any form of steady equilibrium right here. That is certainly not an ideal analogy, however I used to be pondering, as we have been speaking about this, concerning the Reasonably priced Care Act, which passes in 2010, is the topic of extremely heated laws, proper, varied efforts to get it dominated unconstitutional based mostly on the person mandate, based mostly on completely different sorts of administrative powers — there’s been a collection of efforts to intestine it or repeal it legislatively. They fail. However there are efforts that work to trim it, proper? They kill off the person mandate by means of statute. They modify a factor known as the Cadillac tax.
And form of finally, it type of drains out, and other people settle right into a not tremendous blissful, however nonetheless, a form of equilibrium on one thing that was so dominant in American public coverage and politics for, actually, over 10 years. Do you see something like that right here? I imply, do you perceive this as a second of most furor, after which some issues are going to get labored out, and we’ll have a form of regular state that appears just a little bit like X, or is that not the way you think about this going?
On the one hand, I’d prefer to think about that’s doable as a result of I believe there are numerous areas of widespread floor for many People who clearly assist entry to abortion early in being pregnant, clearly are involved about how pregnant persons are handled in varied methods past the abortion context, clearly, assist entry to I.V.F.. So, I imply, it’s not onerous to think about what a coverage may appear like that almost all People would assist.
I believe the issue, partially, is that the polarization of this situation at all times went nicely past Roe. It needed to do with how this situation has develop into yoked to partisan politics. It has to do with the truth that the actions contesting this situation see themselves as combating for human rights which might be extra necessary than the desire of the individuals. These options of the talk are inclined to gasoline these cycles of shock and have a tendency to destabilize options that folks would discover interesting. And that’s much more true in a nation that’s as divided as ours is.
And it’s extra problematic nonetheless, I believe, as a result of the lack of politicians to resolve this drawback has so much to do with the well being, or lack thereof, of the democracy, and the truth that politicians can pursue insurance policies that voters don’t like with regards to reproductive rights with out worry of shedding their jobs. So it’s possible to me that there could possibly be a steady answer, however I believe it could require extra than simply votes. I believe it could require making a extra accountable democracy. It will require adjustments to issues like voting rights and even marketing campaign finance. And so, it’s doable. However I imply, it could be just a little utopian.
However I believe on the similar time, if that’s what it takes, that’s actually what you’re speaking about when you’re speaking a couple of reproductive rights agenda. You’re not simply speaking about what the legislation says about contraception, I.V.F. abortion. You’re speaking about what the legislation says about issues like the proper to vote, too.
After which at all times our ultimate query, what are three books you’ll advocate to the viewers?
I might advocate Josh Prager’s “The Household Roe,” partially as a result of it speaks to how difficult this situation is within the lived experiences of People. I believe it’s simple, at occasions, to get caught up within the legislation and politics of this, and never see the individuals who stay the tales. And that e-book, I believe, actually fantastically illustrates that.
One other necessary e-book only for understanding, there are two books I believe it’s necessary — useful to learn collectively. Jennifer Holland did a e-book known as “Tiny You: A Western Historical past of the Anti-Abortion,” and Daniel Ok. Williams did a e-book known as “Defenders of the Unborn.” These books inform very completely different tales concerning the origins of the anti-abortion or pro-life motion. And I believe studying them collectively is a fairly bracing and provocative expertise and I believe an necessary one, given the place we’re in abortion politics.
And I additionally actually love a e-book known as “Earlier than Roe v. Wade” that was put collectively by Linda Greenhouse and Reva Siegel. And it’s primarily a form of polyphonic assortment of major supply paperwork from earlier than Roe got here down.
And I believe that’s a extremely necessary factor to expertise now, too, to listen to the voices of the individuals who have been concerned on this wrestle in their very own phrases, somewhat than to listen to them channeled by a historian like me. That additionally helps, I believe, clarify how excessive the stakes have felt for individuals on both facet of this situation, actually, from the very starting, from even the years earlier than Roe was the legislation.
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Mary Ziegler, thanks very a lot.
Thanks for having me.
This episode of “The Ezra Klein Present” is produced by Claire Gordon and Kristin Lin. Reality-checking by Michelle Harris with Mary Marge Locker and Kate Sinclair. Our senior engineer is Jeff Geld with extra mixing by Efim Shapiro. The present’s manufacturing staff additionally consists of Annie Galvin and Rollin Hu. Authentic music by Isaac Jones. Viewers technique by Kristina Samulewski and Shannon Busta. The chief producer of New York Instances Opinion Audio is Annie Rose Strasser. And particular due to Sonia Herrero.
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