MARY LOUISE KELLY, HOST:
The Trump administration says its Title X proposal is modeled after a similar policy from the Reagan era. That is something Mary Ziegler knows well. She's a law professor at Florida State University, and she specializes in the legal history of abortion in the U.S. Ziegler says the Reagan-era policy, also called a domestic gag rule, followed a long campaign by anti-abortion activists, a campaign to undercut a familiar opponent - Planned Parenthood.
MARY ZIEGLER: Already anti-abortion groups were recognizing that Planned Parenthood was in some ways sort of the one-stop shop of the pro-choice movement. It was an abortion provider. It was an advocate of abortion rights. It had influential political lobby. And so funding for Planned Parenthood, it seemed to anti-abortion organizations, was especially disturbing because they saw Planned Parenthood as one of the most effective opposition groups.
So there had been efforts to attack Planned Parenthood that had been going on by the time the Reagan-era policy was proposed for several years - you know, federal audits of Planned Parenthood to see if it was misusing funds for lobbying or for abortions, controversies about charities that Planned Parenthood was involved in. So there was generally a sense that, by the time the gag rule was proposed, that it was very much about Planned Parenthood.
KELLY: And what was the reception when the Reagan administration moved to put this policy into place? Was it a huge national controversy?
ZIEGLER: Supporters of abortion rights and many physicians argued that the original gag rule prevented them from delivering the kind of healthcare that they thought was necessary for their patients. And people who were skeptical about the need for abortion more generally just said this isn't about healthcare at all. This is about separating abortion, which they see as an issue of conscience or human rights, from real healthcare. So there was a pretty clear partisan divide about exactly what this meant and exactly how good or bad it was.
KELLY: Sounds like a very familiar partisan divide. I mean, it doesn't sound as though the conversation...
ZIEGLER: (Laughter) It was. Yeah.
KELLY: ...Has changed that much in the intervening close-to-30 years.
ZIEGLER: I think that's right. And I think that - it's interesting, I think, that the Trump administration left out the heart of the old gag rule.
KELLY: The part that you're referring to, this is the counseling provision. Just briefly explain.
ZIEGLER: The Reagan-era regulation also included counseling clients for abortion. So that part of it's been left out. So it's interesting that the Trump administration felt that it was wiser to omit that part.
KELLY: The Reagan-era policy quite quickly found its way into court. Planned Parenthood filed suit. Other groups filed suit. This went all the way to the Supreme Court, which ruled in 1991 that the Reagan policy could move forward. As you look, Mary Ziegler, today at the legal landscape, does it suggest that if the Trump administration policy is crafted in a similar vein, it might also survive legal challenges, setting aside the politics, but from a purely legal point of view?
ZIEGLER: I would expect so. I think, if anything, the current Supreme Court without knowing more would probably be more sympathetic to this kind of program than the court was in 1991. And that court included Anthony Kennedy, who's the presumed swing vote in any kind of related case.
And the court in 1991 in Rust v. Sullivan rejected a First Amendment challenge that centered on some of the features that President Trump's proposal looks at and found that those requirements weren't problematic under the First Amendment. So I think the bet that the Trump administration is making is that this probably looks less bad constitutionally than the Reagan-era regulations, and the Reagan-era regulations were upheld.
KELLY: To complete our walk through history, the Reagan-era rules never went into effect. Bill Clinton got elected. He came to office and quickly rescinded the policy. Now here we are. So what will you be watching for in the days to come now that this proposal is on the table?
ZIEGLER: Well, it'll be interesting to see if there are constitutional challenges to this, and if so, what they are, because it's going to require some creative lawyering because obviously Rust v. Sullivan dealt with some of the claims you could make.
I think it'll also be interesting to see how the administration and how abortion opponents and how other relevant actors start interpreting what Trump's proposal is because the administration's been careful to say, we're not defunding Planned Parenthood. We're just requiring this physical and financial separation. But I think there's other questions just about how literally (laughter) impossible such a separation could be for a lot of Title X recipients unless they want to totally abandon their advocacy for abortion.
KELLY: Mary Ziegler, thank you.
ZIEGLER: Thanks for having me.
KELLY: That's Mary Ziegler of Florida State University. Her latest book is "Beyond Abortion: Roe V. Wade And The Fight For Privacy." We spoke to her by Skype.
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