2022 Midterms Episode 2: A post-Roe election

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EMMY MARTIN, HOST: From The Daily Tar Heel, I’m Emmy Martin. Welcome to Before You Vote, the weekly podcast where we will be breaking down what Orange County residents and UNC students need to know before the 2022 midterm elections. November 8th is just four weeks away. 

As you may have noticed, it’s Wednesday, even though Before You Vote usually comes out on Tuesday. That’s because The Daily Tar Heel has been working on a special edition paper entirely devoted to the issue of abortion – and that edition is now available in blue boxes across campus and Orange County. 

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MARTIN: Dobbs v. Jackson Women's Health Organization is a landmark Supreme Court decision that significantly changed the framework of abortion access in America. 

But, the exact interpretation of abortion cases has been evolving since Roe v. Wade was decided in 1973.

Here to talk about Dobbs, Roe v. Wade, and other cases related to reproductive care is the Daily Tar Heel’s Hannah Rosenberger. Hi Hannah, thanks for joining Before You Vote.

HANNAH ROSENBERGER, REPORTER: Hi Emmy, it’s my pleasure.

So, there are four important Supreme Court cases when it comes to reproductive health and abortion access. 

It starts with Roe v. Wade in 1973, which generally established that the United States constitution protects the right to get an abortion. 

It wasn’t total, unconditional access to abortion — there was some nuance around what states were allowed to do in different trimesters. 

But states were not able to outright ban abortion before viability. 

And then Planned Parenthood v. Casey happened in 1992, which was related to an abortion restriction act in Pennsylvania. 

The Supreme Court affirmed that the constitution did protect the right to an abortion before viability. But it did allow states to place restrictions on access, as long as it did not present an “undue burden,” or a substantial obstacle, for someone trying to get an abortion. 

MARTIN: What exactly does an “undue burden” mean?

ROSENBERGER: That’s a great question, because it wasn’t defined very well in the case ruling. And it was debated a lot in the years following the Casey decision. 

But a 2016 Supreme Court case Whole Women’s Health v. Hellerstedt, which overturned an abortion restriction law in Texas, gives a good example.

The law required physicians who performed abortions to have admitting privileges at a hospital no more than 30 miles away from the clinic, and for clinics to meet the Texas standards for surgical centers.

When it took effect, it dropped the number of abortion clinics in half, and doubled the number of women living more than 50 miles from a clinic. 

That would be an example of an undue burden because the “burdens” of the law outweighed the potential benefits.

MARTIN: Ok, now let’s talk about the most recent supreme court decision regarding abortion access: Dobbs v. Jackson Women's Health Organization.

This is the case on everyone’s mind. 

ROSENBERGER: It certainly is. So, the Dobbs case was in reference to a Mississippi law that would ban abortions after 15 weeks. 

First, I just wanted to clarify that the Dobbs ruling did not ban all abortions nationwide. 

Instead, the Supreme Court’s ruling in June 2022 basically said that the constitution does not actually protect the right to an abortion. This overturned Roe v. Wade and the Casey decision.

And the lack of reference to the constitution then means that federal courts like the Supreme Court don’t have any authority to regulate abortion access. It’s up to state legislatures and other elected officials.

Now that the protections of Roe and Casey aren’t in place, states can pretty much place whatever policies they want on abortion access, as long as it’s not completely irrational. 

MARTIN: What’s something that would be completely irrational?

ROSENBERGER: One of the law professors I spoke to gave the example that states can’t force people to stand on their heads because that is irrational. It wouldn’t do anything to “protect the life” of the baby. So basically, anything actually related to reproductive health, including a total abortion ban, would be constitutional or legal.

MARTIN: Ok, so we have talked about the federal cases. Now, what is happening in North Carolina? 

ROSENBERGER: In 1973, North Carolina passed a law restricting abortions after 20 weeks. But Roe v. Wade was decided in that same year, so the law never really had a chance to take effect.

In 2019, the North Carolina case Bryant v. Woodall placed an injunction on the law as a sort of reinforcement. 

So, people were allowed to get abortions in that window between 20 weeks and viability, which is generally around 24 weeks of pregnancy. 

But that ruling in Bryant v. Woodall was based on the principles in Roe and Casey — that the constitution protected the right to an abortion. 

And when those cases were overturned in Dobbs, the North Carolina court ruled that the injunction from 2019 no longer had a foundation. 

MARTIN: So the case basically confirmed that the 1973 state law is back in effect.

ROSENBERGER: Yes, that’s right. So in North Carolina, you can no longer get an abortion after 20 weeks of pregnancy unless there is a medical emergency.

A medical emergency is defined by state law as when an abortion is necessary to prevent the mother’s death or risk of irreversible harm. This doesn’t include any psychological or emotional conditions. 

MARTIN: Roe v. Wade has been a precedent for almost 50 years. Why did the Supreme Court overturn it now?

ROSENBERGER: The question is now very much about what exactly is protected by the constitution.

With Dobbs, the way the Supreme Court thinks about which rights are protected by the constitution has changed. 

Previously, there were a bunch of things protected by a “right to privacy” or a “right to personal liberty.” This included cases around contraception, marriage — and abortion. 

But now, the court is using a different test to determine what’s protected by the constitution when a certain right isn’t explicitly mentioned in it. It said in the Dobbs ruling, for example, that “the right to an abortion is not rooted in our Nation’s history and tradition.”

Because there’s so many cases that relied on the same principles as Roe v. Wade, it’s unclear whether the rights established by those cases will be overturned as well. The Court majority said in the Dobbs decision that abortion was a unique case, but that could change in the future. 

MARTIN: Thanks, Hannah. 

ROSENBERGER: No problem.

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MARTIN, HOST: When the United States Supreme Court overturned Roe v. Wade and the constitutional right to abortion, they changed the political landscape before the midterm elections. 

States now have the power to regulate or restrict access abortion. As North Carolinians go to the polls, their access to abortion might be at the front of their mind. 

The Daily Tar Heel’s Kathryn Bragg has more.

KATHRYN BRAGG, REPORTER: The midterm election is getting closer and closer and even though Governor Roy Cooper’s term will last for another two years, a lot is on the line for North Carolina this fall. Since the Supreme Court’s ruling in the Dobbs vs. Jackson Women’s Health Organization last June, the authority to regulate abortion has been returned to the states, overturning Roe v. Wade.

That ruling has hefty implications in North Carolina, where a Democratic governor’s veto has kept the majority Republican General Assembly (NCGA) in check on abortion thus far. But as state representatives are on the ballot this fall, your vote has immediate implications for abortion access. I spoke with Jillian Riley, the North Carolina director of public affairs for Planned Parenthood South Atlantic, about the situation for abortion access in the state. 

JILIAN RILEY: So abortion right now is legal in North Carolina, but it’s hanging on by a thread. The reality is there are so many restrictions and barriers to accessing abortion in North Carolina. For example, you have a 72-hour waiting period, which is one of the longest in the country. But also, North Carolina is a critical access point for abortion in the Southeast right now, and we need to make sure we’re electing reproductive choice champions this November in order to continue to protect abortion access come 2023.

BRAGG: Since the overturn of Roe, North Carolina has become a critical abortion access point for women across the country, so this election has implications beyond the state.

RILEY: Right now in NC, we are seeing about a third of our patients coming from out of state...And it’s because in many of these states, there are abortion bans—whether that’s a total ban or severe restrictions on access to abortion. And NC right now we have a ban after the 20th week of pregnancy in NC. But we are still a critical access point for so many states across the Southeast region who have lost access since Roe was overturned.

BRAGG: North Carolina is in a very unique political situation with immediate implications for abortion access, Riley explained.

RILEY: When we have a majority, which is what we have right now: there is a Republican majority, a Democratic minority in the General Assembly in North Carolina. So right now, when they introduce an abortion ban, and anti-abortion lawmakers have more votes than lawmakers that support abortion access, the bill passes, it goes to Governor Cooper’s desk, Gov Cooper vetoes the bill, and the bill is dead. With a supermajority, if they have enough votes, when the bill dies, and Gov Cooper does not sign that bill—vetoes that bill—they can override Gov Cooper’s veto with a 3/5 majority. So if they have enough people in the General Assembly who are anti-abortion, they are able to override Gov Cooper’s veto and that bill will become law. So we have to make sure that we have enough votes in the General Assembly of people who support reproductive freedom to make sure that Gov Cooper’s veto will be upheld and they cannot have a 3/5 majority to overturn his veto.

BRAGG: Riley said that if the election results in a Republican supermajority in the NCGA, 

RILEY: They will try to take away NC’s reproductive freedom as soon as they are sworn in.

If we do not have enough elected officials who support abortion access, they will introduce and pass an abortion ban in January. To me, it is that plain and simple. When we say abortion access is on the line and it’s hanging by a thread, this is not a hypothetical situation. This is a very real reality that will happen to NC where abortion access could be severely restricted or completely banned come January.

BRAGG: Riley said there are plenty of resources for voters concerned about abortion access.

RILEY: I encourage everyone to go to our website, Planned Parenthood Votes South Atlantic, and see all of our endorsed candidates. And we encourage everyone to get involved and to support candidates at the state level because the U.S. Supreme Court gave the power over abortion rights back to the states. And so these critical elections—this is a critical election at the state level—we need everyone to get involved.

BRAGG: Finding accurate political information about abortion, especially online, can be difficult. I spoke to Dr. Francesca Tripodi, an expert on information in politics and an assistant professor and senior researcher of sociology at UNC, about avoiding false political information online. Dr. Tripodi explained three types of false information.

DR. FRANCESCA TRIPODI: So misinformation is just false content...Misinformation is false information that’s spread kind of unknowingly…Disinformation is when people are knowingly spreading inaccuracies for political or monetary gain. And then mal-information is when you have these kernels of truth that are embedded in lies and that’s where I think we see a lot of the political landscape is that you have these very small kernels of truth wrapped up in a lot of inaccuracies. And that is what’s so challenging about combating problematic content leading up to an election.

BRAGG: Dr. Tripodi said the best ways to avoid false information online are being mindful of your starting points and double checking your returns.

TRIPODI: So the two things that I would advise voters is, first of all, be very mindful of what you’re searching for. So if you see something on a social media site, and you’re like, that doesn’t seem right, if you use the same key words and phrases that you saw on a social media site, you are likely going to just find that content again. And this is particularly relevant as more and more young people go to social media to search, right, so I recognize that search landscape is changing and a lot of young people, a lot of college students are going to TikTok not Google. And my worry with TikTok is that these search terms are even more specific because they’re connected to hashtags, and propagandists and conspiracy theorists understand that, so they are really good at matching and anticipating your queries. So just being really mindful about like what that search term is, and then also if there is only one side being presented to you in a search term, there might be something else going on here, so just be a little mindful of the kinds of returns that are returned to you. You know if the top return is a Facebook meet-up group, that might not be a great starting point. You might want to start your search over and think about how other queries can help you become a really informed voter.

TRIPODI: I think the big thing that I just would love all voters to recognize is that your starting points really matter when it comes to becoming an informed voter. And that there is a web of propagandists and conspiracy theorists that are anticipating your queries and trying to direct you to search for things knowing where that will lead. And so just being mindful of breaking that circle.

BRAGG: So this fall, remember to exercise your right to vote and be an informed voter for this critical election. I’m Kathryn Bragg.

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EMMY MARTIN, HOST: Abortion laws are changing — even in North Carolina. An injunction was lifted in August on a 20-week ban on abortion despite protest from Democratic state leaders.

North Carolina’s legislature is only a few seats away from a Republican supermajority, which could lead to more restrictive regulations.

Here to talk about the landscape of laws in the state is the Daily Tar Heel’s Maggie McIntyre. Hi Maggie, thanks for joining Before You Vote.

MAGGIE MCINTYRE, REPORTER: It’s my pleasure.

MARTIN: So tell me about what the North Carolina General Assembly has done on abortion since the 20-week ban was reinstated.

MAGGIE MCINTYRE: Actually, the legislature hasn’t introduced any bills to further restrict abortion since June.

There haven’t been any heartbeat bills introduced, either, which generally ban abortion after six weeks. 

Some other states, like Georgia, have banned abortion after about six weeks under this kind of law, and Tennessee has banned abortion altogether.

South Carolina’s Republican House recently rejected an abortion bill passed by the state Senate after disagreement on how restrictive the bill should be.

North Carolina also hasn’t reconvened in a special session to introduce abortion restrictions like some other states have since Roe was overturned.

MARTIN: So, since states around us have some restrictive abortion laws, are people flooding into abortion clinics in North Carolina?

MCINTYRE: According to some abortion providers in the state, people have come from as far as Missouri, Louisiana and Texas to obtain an abortion in North Carolina.

Planned Parenthood South Atlantic’s North Carolina’s centers have seen their patient numbers from other states triple, and the Carolina Abortion Fund has seen a sharp increase in request for funding.

More than half of the patients at Planned Parenthood’s Asheville Health Center have come from out of state recently. 

MARTIN: What’s preventing North Carolina from having one of these restrictive bills right now?

MCINTYRE: Well, it’s primarily Democratic Governor Roy Cooper. He would block any more restrictive abortion legislation that the legislature passes through a veto.

If Republicans gain a supermajority in the General Assembly in the midterms, though, they would be able to overturn one of Cooper’s vetoes, meaning abortion restrictions could be passed. 

Republicans are only three seats away from this supermajority in the House and two seats away in the Senate, and some of the experts I talked to told me Republicans plan to introduce a ban when the new session starts in January.

MARTIN: Are these kinds of restrictions popular? What does polling data tell us?

MCINTYRE: Polling from August from Carolina Forward suggests that most North Carolinians don’t want to see increased restrictions on abortion, and 28 percent of all voters want to see increased access.

This is split on party lines, though. Only 18 percent of polled Democrats want to see more abortion restrictions, but 60 percent of Republicans do.

Rebecca Kreitzer, an associate professor of public policy at UNC, said she thinks very restrictive bans, like what we’ve seen in Georgia and Tennessee, would go a little too far for most North Carolinians.

MARTIN: What about the other end? Could we see expansion of abortion rights in North Carolina?

MCINTYRE: It’s unlikely for us to see expansion as long as Republicans are in power in the General Assembly.

State legislative leaders Tim Moore and Phil Berger have been outspoken opponents of abortion rights, and were some of the first public figures who asked for the 20-week ban to be reinstated after Roe was overturned.

Allen Buansi, who is Chapel Hill and Carrboro’s representative in the state House, co-sponsored a bill that would expand abortion access to the parameters of Roe as soon as he got into office in June. The bill didn’t go anywhere, though, because of the General Assembly’s Republican leadership.

North Carolina has an uneasy political balance between the Republican-led legislature and the Democratic governor, so it doesn’t look like laws will change either way under the current structure.

MARTIN: Thanks, Maggie. 

MCINTYRE: No problem.

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MARTIN: That’s it for this episode of Before You Vote. For more, be sure to grab an Abortion Issue special edition paper from a blue box around campus and Orange County today. 

Remember, the deadline to register to vote is October 14, just two days away. See you next week. 

Before You Vote is a production of The Daily Tar Heel’s audio and city desks. This episode was written and produced by Reagan Allen and me, Emmy Martin. Contributors to this episode are Maggie McIntyre, Hannah Rosenberger, and Kathryn Bragg. Our theme song is by Adrian Tillman.