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The legal limbo of abortion rights


Vox Supreme Court correspondent Ian Millhiser (@imillhiser) speaks with Michele Goodwin, a law professor, bioethicist, and leading expert on reproductive health policy, about the future of abortion rights in a world without Roe.


Policing the Womb by Michele Goodwin 


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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
- This comes from Planned Parenthood. It's hard to imagine a world where we leave future generations with fewer rights and freedoms. Since the Supreme Court's decision to overturn Roe v. Wade, politicians in nearly every state have introduced bills aimed at blocking people from getting the essential sexual and reproductive care they need, including abortion. Leaves everyone deserves access to care. And with supporters like you, they can reclaim our rights and protect and expand access to abortion care. Visit plannedparenthood.org/future to learn more and support their cause. Podcast comes from Washington wise, an original podcast from Charles Schwab. Decisions made in Washington affect your portfolio and your money every day. Policy changes should investors be watching. Washington Wise is an original podcast for investors from Charles Schwab.
The stories making news in Washington and how they may affect your finances and investments. At Schwab.com/WashingtonWise. That's Schwab.com/WashingtonWise. Welcome to the weeds. I'm Ian Millhiser and I'm back to talk about the Supreme Court as part of our ongoing series, The Most Dangerous Branch. We're at the end of the most brutal Supreme Court term in recent memory.
Springer of conservative excess unlike any in my lifetime. The court threatened huge swaths of American gun laws. It set fire to the wall separating church and state. It gutted much of the EPA's power to fight climate change. And it most likely condemned an innocent man to death. Die. And of course, the biggest decision of the term was Dobbs v. Jackson Women's Health Organization. Roe v. Wade is gone and states are now free to ban abortion outright, and many already have. The ruling in Dobbs also sparked a wave of confusion. What, if anything, can the Biden administration do to protect abortion rights? Will other rights like marriage equality or the right to contraception be the next to fall? Will people still be able to fill prescriptions for drugs that can be used to induce abortions.
What kind of invasive tactics will police use to track patients who have an abortion? I can think of no one better than Michelle Goodwin to help us make sense of this uncertain landscape. Professor Goodwin is a lawyer and bioethicist, she's a professor at UC Irvine School of Law, and she's one of the nation's leading experts on abortion law and reproductive rights more generally. I highly recommend her book Policing the Womb for a guide to how the surveillance state targeted pregnant patients even before Roe was overruled. So with that, here's my conversation with Professor Goodwill. On. Start with something that President Biden said shortly before he ordered a few, I would say, incremental steps to deal with Dobbs last Friday. He said that the only... Way to fulfill and restore the right to abortion is by voting. You know, his basic message is he needs two more
Democratic senators and needs to keep a pro-choice house and then he can pass a bill through Congress that will actually do something about. Not everyone agrees that his hands are so tied. I've heard some senators came forth calling for federal funding. Lands to be open up. I've heard some people propose military bases, maybe military personnel could perform abortion. So I guess my first question is, who is right here? Is there more that the Biden administration could be doing? And can they do more than just incremental steps to make Marginal incursions on what Dobbs has done. Dr. Ann Cashion-Mikki The reality is that voting is critically important. The unfortunate aspect of this is that the Supreme which has dismantled and overturned Roe v. Wade and Planned Parenthood v. Casey, has Dismantled key provisions of the 1965 Voting Rights Act, which affect the same.
Population so if we look at the Mississippi case which the Supreme Court took up in Dobbs which bans abortions after 15 weeks of pregnancy with no exceptions for rape or incest. The Supreme Court went so far as to take up its second ask. Which was not only to overturn the lower court's decision, which would allow the Ought to go into effect, but even more, get rid of Roe v. Wade altogether. Yeah, 'cause Mississippi had just passed a 15-week ban, not an outright ban on a That's absolutely right and Judge Carlton Reeves issued a ruling Which did not allow the law to go into effect. And it's a really powerful order, one of the most poignant that I've read. In the footnotes... Judge Reeves said that the state of Mississippi was gaslighting women in that state because Mississippi justified --
Law saying that it was enacted to protect the women of Mississippi. And why your question is so important related to this question. Question of voting and whether voting does it all, is that voting is actually critically important. Why Mississippi has for so long tried to keep black people from being able to vote in its state. Just a generation ago in the state of Mississippi to be able to vote there, if you were black, you had to guess how many bubbles on. Bar of soap, how many jelly beans in a jar, or be able to recite the state's constitution. So when the Supreme Court says, Well, just go and vote if you don't like our decision, and when you have the president say, Just go vote, we have to understand that. On just how complicated voting is in the United States for the most vulnerable of Americans. It's powerful, it's important, and yet at the same time.
Time we see significant voter suppression taking place in the United States in the very same states that have enacted the most harsh abortion bans. It's in those very same states that black and brown women no longer have the protection of key provisions of the 1960s. Voting rights act. So go vote, but vote in circumstances where it can be very difficult and very fraught. Order to be able to have a vote cast. So it's important what the president has expressed but there is more... That the president can do. And I think that what has been recommended, not only By members of Congress, but also by those who care about these issues is very important because federal lands can become a
sanctuary for reproductive health care, including abortion and including military bans. Let me just say this, which is that prior to Roe v. Wade, the state of California was a very, very, very Be weighed. Abortions were being performed in the United States on federal lands at the Military bases. In fact, it was the default position of military bases. In the United States that women who worked in service should not... Be able to serve and be pregnant. In a famous case involving a captain in the military, Captain Kathy Struck. She was pregnant and she wanted to be able to carry her pregnancy to term while remaining in the military. Military said, No, you must have an abortion. This is pre-Roe in order to serve in the military. Said, Well, no, I want to carry my pregnancy to term and I'm willing to surrender the child for adoption.
Said not good enough, have an abortion in order to be able to stay. It was actually this case that Justice Ruth Bader Ginsburg hoped would... Would be what we understand as the Roe case. It wasn't, but I think that the -- this concern about federal lands being used for these purposes or military bases shouldn't actually be a question at all, given that-- More than half a century, we've had military performing abortions on basis. So let me give you what I think is the best argument, and I think this is the I did an administration's argument against the federal land solution, and I'm just interested to hear your response to it. So there is, you know, a fair amount of law suggesting that there's federal enclaves that where the state does not govern there. It's just federal law there.
If you put an abortion clinic on a federal enclave in Texas, Texas law won't apply. But ultimately it's going to be the same courts and the same Supreme Court that gave us Dobbs that are going to decide whether. Texas law applies in that federal enclave and abortion providers are still going to have to travel to and from those federal lands so they could be arrested by a state while they are traveling to and from work at this federal abortion clinic. So what happens to that abortion provider when they're arrested by the state, the state insists that they can insert jurisdiction over that person, and ultimately the question of whether the state can do so comes down to a federal judiciary that we already know is hostile to abortion rights? Well there are separate questions that are bounded within the context
Of what you've asked, all of which are important. The first is to understand preemption and federalism, which is that federal law does trump state. Law and also understanding that the right to travel is something that... Enshrined within constitutional principles that date back to the 1800s, including in Supreme Court jurisprudence. So if we take the question with regard to the... To travel. That's something that has been safeguarded for centuries. In the United States, in fact even dating back pre the Constitution that we currently have, the emphasis of being able to travel unfettered and to have one's privileges respected in the various spaces to which one would travel. But you've asked a great question, which is,
is, isn't everything up for grabs now? So what we've always had and held as sacred, even before our courts, aren't those very principles vulnerable? And that's a very good point because what the Supreme Court has shown us is that though it is held as sacred, As an august body that is to be revered and is to act principally in part. Partially and in an unbiased way, rendering opinions that are consistent with starry... The Constitution, the reality is the Supreme Court has shown that it is vulnerable to partisanship and that it can be fallible. And so that in concern, I understand it.
And that doesn't in any way take away the fact that right now on federal lands and military bases. - Portions are actually being performed. Doesn't take away from the fact that the freedom to travel exists in the United States. And it also doesn't take away from the fact that the Justice Department should do the work that it's charged with. In protecting the civil liberties and civil rights of Americans, and that includes doctors, and that includes individuals as they travel, and protecting their rights. Much like the Department of Justice was called upon. During the 1950s and 60s in protecting the rights of Black Americans who were living in hostile states. - So you mentioned preemption, which is the concept that sometimes federal law Trump's--
State law. And you mentioned the role of the Justice Department in protecting constitutional rights or rights that until at least until recently were considered constitutional rights. And I want to talk for a moment about something that Attorney General Garland announced he would do I believe immediately after the Dobbs decision. There's the drug called Mephi- Which is the abortion pill. Close to half of abortion. Now are medication abortions. You take a pill at home rather than having a surgical procedure. In a carefully worded statement and I will read from his statement because I I think the wording here may be significant he said states may not ban Miffy-Prestone based on disagreement with the FDA's expert judgment about his safety and efficacy and promise to use the Justice Department's resources to make sure that rule is informed.
Can you walk me through the legal issues here like can the FDA prevent states from banning pill and what are the legal fights likely to look like moving forward? Is a branch of our agency ecosystem that has at various times been weaponized in ways to support what would be. A presidential agenda. During the last administration, the FDA was. It's weaponized and singling out Mifepristone and abortion-related drugs. To the degree that women had to go and people who have the capacity for pregnancy who wanted abortion had to go in person to clinics in order to receive those medications.
Singling out abortion pills from more than 22,000 other medications. So during the period of covid of 22,000 prescription medications including heavy It was only abortion-related pills that one had to go to a clinic or hospital. To receive, anything else could have been received in the mail, that was during the Trump administration. The Supreme Court sided with the FDA in being able to do that. In this administration, there's a different take that's been on these drugs, and that is that these drugs will remain available and can be shipped and people may be... Able to receive them across the country. And traditionally with federalism, it is that federal law, including regulations that come from agencies, will trump anything.
That happens at the state level. Basically, states are able to enact laws and policies that don't contravene federal law. Right? And we get this from the 10th Amendment. What we see coming forward will be a hashing out of these issues in our courts, and it's going to become a very complicated landscape. But how do we know this? You know to an earlier question that you asked when we think about the Texas law SB 8 Which was enacted in 2021. It bans abortions after six weeks of pregnancy, making no exceptions for cases of rape or incest. It deputizes and individuals in the state to be able to go after individuals and sue them who aid or abet a person with terminating
Pregnancy. Now why do I mention this? Because this was pre-Dobs. Roe v. Wade was still the law of the land in Planned Parenthood v. Casey. And here this law goes into effect in Texas that directly contravenes Roe v. Wade and Planned Parenthood v. Casey. Parenthood v. Casey. The Supreme Court allows it to stand. It was stunning. Absolutely stunning, completely inconsistent with federal law as we've always known it, completely inconsistent with Supreme Court jurisprudence as we've ever known it. The equivalent of imagine 1954 we've got Brown v Board of Education and it's a case that comes... Out of Topeka, Kansas, but imagine that, you know, a year after Brown, the state of Louisiana. Anna says, well, we don't have to pay attention to Brown. Forget you, Supreme Court. It would never have stood. But now we're in a landscape where everything is being reconsidered and in front of courts that Americans don't trust, including the
Supreme Court. So assuming that the FDA does have this sort of authority, what happens in a Republican administration? You know, in retrospect, I think it's surprising that the Trump administration didn't pressure the FDA to just say, Oh yeah, we're gonna unapprove Meephey Perstone, and it's not hard to doing that? I mean, yeah, I mean, do we have to be worried about that? Here's the important answer. Which is that Justice Ruth Bader Ginsburg was still alive. Amy Coney Barrett was not on the court yet. There hadn't been... Been that crucial shift on the court yet, which would allow for the current makeup of the court. And delivering a decision such as Dobbs. Keep in mind that in the 2019-2020 term of the Supreme Court in a case called June Medical v.
Chief Justice John Roberts sided with the liberals on the court in a case that Basically was a re-litigation of a statute almost identical to one that the Supreme Court had struck down in 2016 in a Whole Woman's Health v. Hellerstedt. On the line there for Chief Justice John Roberts was the credibility of the court. Integrity of the rule of law. How in the world could the court in 2019 reverse itself? on a decision from 2016. So he sided with the liberals. Justice Ruth Bader Ginsburg. Still alive. That's before Amy Coney Barrett came onto the court, the last person to be appointed to the court by Donald Trump. So basically it sounds like what you're saying is we don't know what a Republican administration is going to do now that
Feel like there's no adult supervision. Well, that's right. Let's level set a little bit. In this juicy conversation to even remember what are we talking about when we think about Republican Party? What does this mean? Right, in 1973, The Roe v. Wade decision it was a seven to two decision it wasn't even close five of those Seven justices were Republican appointed. Justice Blackmun, who wrote the book, Opinion in Roe v. Wade was put on the court by Richard Nixon. We're talking about... An era in which Prescott Bush, the father of George H.W. Bush, was the treasurer of Planned Parenthood. So what are we talking about when we say Republicanism or Republican values? I mean I think that part of what's being said is that it's a party that no longer resembles itself, but there's also a level of infighting. So in terms of what comes future
Party in relation to these questions, it's going to be interesting to see what the Republicans sort out. Amongst themselves given that it is a party that no longer resembles its former self and whether There are those you know whether the next president that might be Republican is a Trumpist Republican or a Republican. Republican, that would be more like the Bush's. So what happened to the Republican Party? With you that like in the 1970s when Roe was handed down at least amongst legal elites, there was a consensus in favor of reproductive rights. And it, you know, it was bipartisan. I mean, you went through what the vote count was. And Roe v. Wade, why did that shift? Why are we now talking about a Republican Party that views this issue very differently than they once did? political experience of this moment and the cohering of different movements coming to
Under one umbrella for purposes of political expedience that may not reflect true sentiment and values and here's what I'm talking about. We're looking at... Umbrella of the Republican Party, of the Trump version of the Republican Party or a Jesse version of a Republican Party that includes proud boys, oath keepers, groups Identify themselves as sympathizers with white supremacy, white nationalism, white Christian supremacy, all of those kinds of things that would have been an anathema to the Republican
of old. Keep in mind that, you know, as we've talked about voting rights with this, consistently, prior to what we see today, which has made roadkill of the prior Republican Party, there was a consistent support of the reality. Of the Voting Rights Act, that same Voting Rights Act that in part has been dismantled by this Supreme Court. I think that there is right now this deep which has been articulated amongst certain groups within the Trump Republican Party about replacement. This kind of idea of the darkening of the United States, which again ties right back to these matters of reproductive health rights and justice. The sense that there is this urgent need Need that white women be used, that their loins be used in population expansion and growth.
Seem alarmist and crazy to some, but this is exactly what folks are writing about. This is, you know, part of the pressure behind this movement, this sense of concern about immigration, not immigration from Europe. But immigration that is from Central and South America. And we heard this articulated by the former president when he was running for office. But let me add to this, it's not new. Abortions had not been criminalized in the United States. I mean, originally pilgrims performed abortions. Benjamin Franklin wrote a book about how to perform safe abortions. When abortions began-- To be criminalized in the United States in the mid-1800s. It's within view of a civil war coming. It's within view.
That black people will no longer be shackled to unjust and inhumane conditions of the South. And it's within this time that there are pamphlets being written and books being written by these new-- Wave of white male gynecologists, Horatio Storer, Joseph Dealey, and the like, and they are explicitly writing that they need white women to use their loins and to spread their loins east, south, north, and west. We're seeing the revisiting of that. The day. Imagine you're a lawmaker in the state of say, Illinois. And I pick Illinois because it is a blue state that is basically surrounded by states with anti-abortion laws. If I am a state lawmaker in Illinois and I want to write a bill that maximizes the ability not to...
Of people of Illinois to get abortions, but people from the surrounding states to come to Illinois if they need an abortion. What should I put in that bill? Legislation is going to go so far as to provide resources for individuals to be able to safely make their way into those days and to give into... Visual safe harbor while they are in those states, either receiving abortion care or performing abortion care. That state is going to predict the possibility of really absurdist laws. Coming out of Mississippi, Alabama, Louisiana, and Texas that might try to extradite doctors. From the state of Illinois who perform abortions. And so that state legislation is going to try to protect those providers.
As well as protect individuals who may aid and abet individuals who travel into the state. And so what's important to keep in mind is that there's such a significant... Degree of absurdist laws that we can predict will emerge from anti-obligatory abortion states. And it's going to be important to try to get a handle around all of that in order to safeguard not only the individuals who are already Reside in the state like Illinois, but those who will be coming into Illinois be they doctors, in families or individuals who are seeking to terminate their pregnancies. And then let me just... At this in terms of the absurdity. If you look at the work of Pauli Murray and her book on race laws, just as--
Good Marshall said it was the Bible of the civil rights movement. It's nearly 800 pages and it is absolutely stunning for what it reveals in single space. Thousands of US laws, Jim Crow era laws, absurdist kinds of laws. And my sense is that in this era of the new Jane Crow, we'll see versions of absurdist laws. So what were some of these kind of absurdist laws of the past, right? Black people can't swim in the pool. Black people can't walk in the park. Black people can't bowl. Black people can't play billiards. Absolutely crazy, ridiculous. And I think in these times, we have to be prepared for really absurdist laws emerging from these states. It's going to be hard to protect, but we have to put our thinking caps on in order to protect the people who
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Planned Parenthood believes that healthcare is a basic human right. That's why they fight every day to push for common sense policies that protect our right to control our own bodies. They also work tirelessly to oppose the onslaught of new policies aimed at interfering with personal decisions best left to patients and their doctors. They won't give up and they won't back down. You can join Planned Parenthood in the fight to help make sure that the next generation can decide their own futures. The organization needs your support now more than ever. Just like you, they can reclaim our rights and protect and expand access to abortion care. Visit plannedparenthood.org/future to learn more and support their cause. I'm Ian Millhiser, I'm here with Professor Michelle Goodwin, and we're talking about the future of abortion rights and other related policy issues now that Roe v. Wade no longer exists. I want to talk about, I guess, two concurring...
In the Dobbs case. The first got a lot of attention. It was an opinion by Justice Thomas where he basically said... Let's burn it all down. Let's not just get rid of abortion rights, let's get rid of same-sex marriage, contraception rights, maybe the right to engage in consensual sex with the part... Of your choice, burn it all down. That was Thomas's position. But there was also a concurring opinion by Brett Kavanaugh, which took a very different Attack. It basically said, I am not on board with Justice Thomas's project. I do not want to overrule Obergefell the same-sex marriage decision. I do not want to overrule Griswold the contraception decision. We are talking about Brett Kavanaugh here, so let me... Ask a direct question. Do you trust him when he says that he isn't interested in this broader project that Justice Thomas laid out? So in the majority opinion, not...
Just the concurrences and the majority, Justice Alito, suggests that other areas of privacy aren't vulnerable simply because of Because Roe v. Wade and Planned Parenthood v. Casey are overturned. The justices and the majority seriously in that regard. Even justice Kavanaugh who emphasizes in the concurring opinion that he is not a party to what Justice Thomas is suggesting in the opinion. No, it can't be trusted. But Ian, I will say this, it's not that Justice Thomas said burn it all down. He said burn virtually all of it down, but keep myself and my wife safe because know that they are Interracial marriage. In 1967, the Supreme Court struck down laws that banned...
Interracial marriage, using the Supreme Court's prior jurisprudence in equality and also privacy. Notably, in Justice Thomas's concurring opinion, he doesn't touch the question. Of interracial marriage while he touches virtually everything else and says that all other areas of privacy vulnerable and he's absolutely fine with all of that going away with this exception I suppose being At a interracial marriage. You know, look, some have said that Justice Thomas should watch out because there are possibly five votes on the court. Might not care about interracial marriage anymore either. But look, it's a troubling opinion, and I think the guardrails that are suggested are more weak than what the Supreme Court even insists upon. Can you just explain real quick as a...
Matter of constitutional doctrine. Like why are the rights to abortion, sexual autonomy, contraception, marriage? they linked in a way where an attack on one potentially threatens the others? It's this thread of privacy that the Supreme Court has used... Across these cases that involve contraception, marriage equality, abortion, and more. So before Roe v. Wade, we have Griswold v. Connecticut, where the Supreme Court uses the doctrine of privacy. To strike down a Connecticut law that bans married couples from being able to have access to contraception. The court bills upon that before Roe v. Wade in a case called Eisenstadt v. Baird,
Laws that ban single individuals from being able to have access to contraception, again using this theory of privacy and then that strings through Roe v. Wade and then it further strings through. Even before that, interracial marriage with Loving v. Virginia, and ultimately more recently with Obergefell, the decision that affirmed same-sex marriage and that in the process struck down laws that would have banned same-sex marriage. So I've been thinking a lot about the Hobby Lobby case lately, and like, I want to talk about the very specific complaint that one of the- Parties raised in that case, which is that they believe that certain forms of contraception were actually forms of abortion. IUDs and morning after pills, they believed it stopped a fertilized egg from developing and that is akin to an abortion.
And I will note that I've talked to many doctors who've told me, No, no, no, that's not how those things work. But that's what they believed. The court accepted their belief and then said that because that was their religious belief, you know, certain consequences flowed from that. Might contraception become vulnerable to this landscape that conflates contraception with abortifacients. And sure, because the Supreme Court note another Alito opinion. Basically allowed this fake and phony interpretation Devices and medications to be seen as abortifacients when they're not. Will not terminate a pregnancy. Plan B does not terminate a pregnancy. It prevents a pregnancy from taking place, but that is different from terminating a pregnancy. And so the...
The Supreme Court has already opened the door in Hobby Lobby for the conflation of these ideas and at the state level to the extent that there are lawmakers that also... Make those same conflations and say we will ban IUDs, a very popular form of birth control, because we interpret it to be. And abortifacient, the first thing that likely they will do is to reference the Supreme Court and Hobby Lobby. And you are absolutely right, there is no medical authority, no credible medical authority at all that recognizes IUDs as anything other than contraception, they are not abortifacient, neither is plan B. So I take a drug called Methyl trexate and I mean methyl trexate has a lot of uses I take to control an autoimmune
disorder, it can be used for chemotherapy, but one of its uses is that it can induce an abortion. And I've heard at least anecdotal stories of people going to fill their methyl triaxate And having trouble doing so because they're in states that ban abortions and there's uncertainty about whether they can get the drug. And so I guess my question is, you know, do I need to worry that if Republicans take over my state? Or like more realistically am I going to be able to get it because I'm a cisgender man and it's pro- I'm not gonna use it for an abortion but if a woman of child Bearing age takes the same drug for therapeutic reason, are they going to be unable to get their medication because of a fear that it's going to be used to induce an abortion? The real world consequences of this kind of partisanship.
Decision making that has infected our court links directly to your question and you should be concerned. You should be concerned because I wrote a piece about five or six years ago, published in the Illinois Law Review, that identified-- Cases of even married couples having difficulty filling Plan B prescriptions. Why? Because... Anti-abortion lawmakers, anti-abortion activists, and the legal teams that work with both have Sent out messages to pharmacists informing them that they don't have to fill certain prescriptions and that they will have legal counsel and support if they deny prescription medications that are lawful and approved by the FDA to the people who come in and want them.
These cases have already been happening even before the Dobbs decision. There's already been the kind of weaponization that's taken place amongst... Pharmacist in the United States. So let's talk a bit about surveillance. Now that we're in a post-op's world, like, how much do people need to fear that if they're pregnant and they... Go seeking medical care that may be unrelated to their pregnancy that their doctors will talk to law enforcement if their doctors feel that they're trying to terminate the pregnancy. This is what's frightening about this landscape and it's something that the Supreme Court paid no attention to. It paid no attention to maternal mortality morbidity and nothing to the space of criminalization. And what we're seeing is that the Supreme Court is not going to be able to What's worrying about this is that these are states that have had a very difficult time keeping women alive who've wanted to be pregnant and have been very well practiced in the past.
Criminal surveillance and punishment, civil and criminal, of women in those states who were pregnant who were not seeking abortions. Of women falling down steps or using an illicit drug during pregnancy or like baby sway in the... State of Indiana who ate six packets of rat poison because she tried to kill herself. Indiana, it is not criminally punishable. It's not a crime. In the state of Indiana in Indianapolis. She was charged with first-degree murder and attempted feticide after eating six packets of rat poison to try to kill herself. She was incarcerated for two years before there was the opportunity to get her out while her trial was still in process. Expert witness in that case. And what we're going to see are the possibilities of selective punishment, the selective.
Surveillance and what do I mean by selective surveillance and selective punishment? That is to Already have racial profiling that exists in the United States. There are already we have some people who are profiled more than others in this pre Dobbs landscape. We knew that black women are 10 times more likely than their white counterparts to have the police called on them, black women who are pregnant, right? 10 times more likely than white women who are pregnant to have police called on them and child protective services with matters related to their pregnancy. Now, what this might mean. In a post-ops world is really quite frightening. And I imagine we won't see less, but rather an amplification of the state's policing of pregnant women in particularly harsh ways, I think, for black and brown women. - So one concern I've heard from, I mean, just a lot of women in my personal orbit is a lot of people use
Apps to track their periods and the rule generally in fourth amendment cases is that if you voluntarily give information to a company then you don't have a reasonable expectation of privacy in that information and if the police want it, they can have it. So you have all of these women who are just giving away this information about their menstrual cycle that could potentially reveal that they were pregnant, that they terminated a pre- pregnancy, you know, I mean should women stop using these period apps if they if they live in states where abortion is illegal? Yeah, they should. And that's an easy one. And connected to your prior question, there's a deep about their doctors and medical providers that they'll see. This is the harmful times in which... Were in, which is that doctors and nurses have been deputized as a kind of...
Niches of their patients. When patients come in, giving information that they believe will be used for providing medical care, instead there are prosecutors that are Are pressuring doctors and nurses to call them and to provide sensitive. Potential patient information that later on can be used to prosecute pregnant women. Look, I've interviewed prosecutors in states like Alabama who've told me directly. They get calls directly from the doctors. And nurses and that they want to use that information for prosecutorial purposes. It's deeply alarming. And I will tell you, it's not just the apps that track periods. The apps that people have that just simply track where they go could be used as geodetectives.
Devices by prosecutors able to show that a person went out of state before leaving states Some evidence that that person was pregnant, coming back from a state like Illinois, New York or California, no longer pregnant. It is a cruel and harsh landscape. No, we saw things similar during Jim Crow. - This came up in a case called Carpenter v. United States a little while back and... Carpenter involved police that basically wanted to get cell phone tracking data to find out if a particular suspect had been at the scene of various crimes. And, I mean, the good news is that Carpenter said that they need a warrant to do that, but a warrant isn't that- Hard to get so like if police know that there is an abortion provider located at a particular place can they then obtain a warrant and use your cell phone data I mean if you get it abort-
Should you leave your cell phone at home? These are really good questions and they're relevant questions. And maybe people should and maybe people should get burners. Look, you know, I think with having a conversation like This, we want to keep it serious. But at the same time, what people might find to be alarmist and hyperbole really is not. Again, if we could just look back at the playbook of Jim Crow, which I believe is being borrowed in this era. Sheriffs would show up at the train stations when black people were reasonably trying to flee horrid conditions of Mississippi. Be in Alabama? Literally, sheriffs would show up at train stations to force Black people to get back to the nouveau plantations of sharecrops. Cropping and not be able to leave. And just as the case that you have just cited, there are law enforcement that search,
Now search people's social media. It's normalized, they're Facebook pages, right? actually should be concerned in these states that are no longer free states. And I take that very Seriously when I say it. For black and brown women, white women, you know, rural folks who are living in these hostile non-free states where less... Have said by every means possible, they will deploy every means we can. Within their ability to punish those who seek to have abortion. Punish those who aid and abet individuals in terminating a pregnancy when they say that take it seriously So let's go and take our second break And then afterwards I want to come back and we'll talk about what the endgame might look like for abortion policy in the United States.
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Needs support. And new OLLI Brainy Chews are a delightful way to take care of your cognitive health. Made with scientifically backed ingredients like Thai ginger, L-theanine, and caffeine. Brainy Chews support Healthy brain function and help you find your focus, stay chill, or get energized. Be kind to your mind and get these new tropic shoes at OLLY.com. These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease. I'm Ian Millhiser, I'm here with Professor Michelle Goodwin, and we'll talk about the future of abortion policy. In a world without Roe v. Wade. And I wanna start this last segment with a somewhat optimistic scenario for abortion rights. The optimistic scenario is that the DOBs opinion is really unpopular. Most polls that I've seen show 60% or more support for abortion.
Rights. There was an immediate shift in the generic congressional ballot towards Democrats after the Dobbs decision came down, although who knows if that will stick around until election day. And so like the... Optimistic scenario is what happens if democracy works? You know, what happens if all of these states enact these draconian laws and they just prove to be really... Unpopular. You know, could it be that the democratic process after a terror... A terrible period where these laws will be in effect, that the democratic process will eventually work to repeal them. Ultimately, I... I do believe that there is a silver lining that comes from these times. Place already at the state's level where in California, Illinois, Colorado, New York,
Legislatures in those states are going back revisiting their laws and further fashioning legislation that would protect individuals in those states as well as people who are coming for to those states to Receive abortion-related care. At the same time, I think that in this space of darkness, it is when we are able to see the brightest stars. In order to find those pathways towards freedom. Reality is that Roe v. Wade was never the North Star. Shortly after Roe v. Wade, with the Helms... Amendment internationally and the Hyde amendment domestically, it made it very difficult for poor women to be able to access abortion services.
And so it's been a very long time, I think, in coming and revisiting what all folks, all girls, women, people with the capacity to become pregnant, what kinds of rights will be meaningful going forward? What should they look like? Will the Women's Health Protection Act, which we... One thinks about it, it would codify Roe v. Wade, probably should have happened in the 1970s, right? What needs to come? come next. And I've been suggesting that this is a time for a third reconstruction, one Lives of girls and women and LGBTQ folks and individuals with disabilities are actually I mean, if we consider that first reconstruction to be the 13th, 14th, and 15th Amendments, and they were, and the second to be the '64 Civil Rights Act and '64... Voting Rights Act, we're due for a revisiting of how we get the American arc towards
justice right and we realize we must realize and be honest that though we've been on that kind of pathway and journey towards equality and Freedom. The reality is that we've not fully reached that and we know that given the rise of white supremacy in this country and given the overturn of Roe v. Wade and Planned Parenthood So now I want to discuss the pessimistic scenario, and not just for abortion, but for democracy. As you mentioned, like the same Supreme Court that dismantled abortion rights has also been dismantling the Voting Rights Act. It is blessed. Artisan gerrymandering, and so think about a state like Wisconsin, where the state Legislature is so gerrymandered that it is basically impossible for Republicans to lose their majority.
Wisconsin has an abortion ban and it is unlikely, so long as those maps remain in effect, it is unlikely that it will ever be repealed. So what can be done in a place like Wisconsin? I mean, does it have to be extra legal? But like, what can be done in a place like Wisconsin? Like Wisconsin where there may not be a recourse to democratic elections in order to repeal bad laws. So it's interesting that you pick Wisconsin because notably in Madison, that city, both the police chief who has... To be African American and others have said that they will not seek to punish and arrest folks who. Are seeking to terminate their pregnancy, that that's just not the lane in which they want to use their authority. And so this raises the question of not just about interstate travel, which we've talked about and which...
Is protected under federal law, but interstate travel, right? Where are the safe havens in these states, and will we see a kind of squaring off between-- Cities that might be blue or purple. Versus townships that are red. And there will be so much that will unfold in the time to come. You know, these are times that can seem quite disheartening, but even within the space. Of what you've just asked. You know, people can leave those states, and this is why it's really important that the abortion funds that exist are able to raise the. Kinds of resources that help the most vulnerable of folks get out of these states. Right? Like let's keep in mind that no one should have to suffer the indignity of forced involuntary
We got rid of the draft after all no guy is subjected to having to put his body in service of legislators, state or federal. It should not be the case with any girl or woman in this country. But to the extent that it does exist, there are safe havens. Across the United States, much like there was during the period of antebellum slavery in the United States. Eventually those systems failed. These will too. - So one thing that I think is implicit about your comment Police chief who has said that they won't enforce anti-abortion laws. It's not just that this police chief could matter, liked it. In some places, sheriffs are elected. In some places, district attorneys are elected. In virtually every state, the attorney general is elected. You know, the, the, the police chief may not be elected.
But you can elect a mayor and the mayor appoints a police chief. So it seems like there is some deeper democracy. Like even if you can't fix the state legislature. There may be other elected positions that have a lot of influence over this issue. And traditionally they have... - We have. States attorneys general have played crucial roles. In the advancement of justice in the United States in a number of ways. And we saw that during the Trump administration. As they fought to protect civil liberties and civil rights, so you are absolutely That the platform of democracy drills right on down to the finest core of the within the United States, right down within townships and cities. And it's important to keep that in.
Mind such that this isn't all doomsday. I mean, it's important that we shine a light on the realities of these situations and also the vulnerability of our court, but the reality is are ways in which people can be protected. There are ways in which discretion can be used by elected officials to protect people's constitutional rights. These states, towns, and so forth. I wonder if abortion rights advocates can take a page from the far right here. You know, maybe... Dozen years ago I covered this very, very frightening movement involving these people they call themselves constitutional sh*t. Sheriffs and like basically what they were people who are running for the office of sheriff and they promised not to enforce the list of laws that like people on the far right didn't want to enforce And I wonder if similar organizing is possible here. I mean, can there...
A way to organize candidates for office like sheriff, like DA, like attorney general. Around a pledge that, you know, If elected, I will not enforce abortion bans. It's a very interesting time to think about the strategic movements within this space. So those who would seek to upend and dismantle civil rights and civil liberties actually took pages from the playbooks of the civil rights movement with how to grassroots organize and how to move political agendas along. And it seems that those who are sympathetic... To civil rights and civil liberties lost sight of the grassroots movement. Movements and there are add-ons that the far-right have done in terms of kind of model legislation model platforms that have been pushed
Ways that are visible in terms of legislatures and ways that are invisible in terms of reaching pharmacists and other people that just simply aren't on the radar. Well, yeah. Those who support civil liberties and civil rights connected with reproductive health rights and Justice, can relearn and can amplify that same kind of social movement agenda and also political movement agenda and cast their voice in the same way that they do in the same way. Only alongside those who actually get the message and who say that they are committed and will defend Civil rights as related to reproductive health rights and justice. That's actually important and it's critical in the time to come. Is a compromise possible? Could we imagine that 30 years from now, most states will have laws permitting abortion up to the the 12th week or the 15th week? You know, not as protect- Active is what we had under row and plan parenthood v casey but not the hyper pole
polarized environment either where if you live in a red state you can count on your lawmakers to you know to want to abandon abortions outright. All things are possible. So it may be possible that in a future landscape that the anti-- abortion movement has seeded some ground within these spaces, but the part about That's so alarming to me is the fact that it ignores maternal mortality and morbidity, this idea that still amplifies right. Of embryos and fetuses against the constitutional protections of... Girls and women and people who can become pregnant. You know, there is a way in which this landscape has become so deep. The next.
We ignore the significant risks associated with pregnancy. People don't even know anymore what a pregnancy is. We ignore the fact that a woman is 14 times more likely to die. By carrying a pregnancy to term than by having an abortion. That doesn't become safer. The longer that she is pregnant. It just doesn't. In the state of Mississippi, a black woman is 118 times more likely to die a term than by having an abortion. I realize that your question is about, well, does this landscape shift such that, you know... Maybe it's 12 weeks, 15 weeks, and that's the deal that is in the United States. I think that that's still just a really harmful deal. Deal for so many reasons, which would require a whole additional show in order to unpack All of the ways in which that may be incredibly problematic,
rule of law, but also for women's health and safety. Want to give birth. And you know, setting that aside, like one consequence of Dobbs is that there's going to be a lot more children born to people who weren't prepared to have that child. And so I guess there's two questions here. You know, one is what should our policies be? To deal with the, you know, babies that actually are born, but more than that... At like what sort of political organizing can be done here? You know, I mean, there's a lot of punditry about.
Oh, well, you know, now that we have this, you know, this new pro-life regime, I guess, you know, Republicans should take families seriously again. How can we get them? How can we get lawmakers of both parties to take family policy seriously and make sure that people who give birth have the resources that they need in order to to be successful parents. Let's keep in mind that there is... Much a disregard for the humanity of children, particularly those that are black and brown, that we've just come through a time in our country where children... Were literally locked and stored in cages at our borders, where the former... Administration argued before judges that they should be able to deny such children, during a pandemic, access to soap and toothpaste, right? So when we think about care and concern with regard to vulnerable families.
For those that have always been marginalized and vulnerable, there's never... Been the investment of care for them and their families, which I think is what-- Makes all of this so cruel in the states that are the most prolific with their. Or anti-abortion stance and bans are the states that have refused to expand Medicaid coverage. These are states that have rolled back welfare protections. Have been very negligent in the education of children. These are states that have not expanded. Opportunities for child care and in many instances are states where families are punished if They've not been able to pay the prior year's fees for lunch, even if those happen to be marginal fees.
So it's deeply distressing when one already looks at that kind of backdrop of families where people Want it to be parents or not. I will say that it's also been distressing that within the reproductive rights movement Its attention has focused just on abortion and clearly not well enough in recent years such that it was negligent in looking at the At these matters of criminal punishment, civil punishment, involving women who want it to be pregnant. And who suffered in various ways inflicted by police and prosecutors. You next time. On fiduciaries and firm advocates for their patients. So when I look at that backdrop, it's distressing.
I will say, in terms of looking at what may come forward with people who are now forced and coerced into a parenthood that they can't afford, that they don't want. And it's particularly distressing when one thinks about that falling on 10-year-olds, 11-year-olds and 12-year-olds in those states that will have no reprieve. After incidences of rape and incest. Thank you so much for your time and for walking us through what the world is likely going to look like now that we no longer have Roe v. Wade. Pleasure to be with you. That's all for us today. Thanks again to Professor Goodwin for joining me today. Sophie Lalanne, Libby Nelson is our editorial advisor. Amber Hall is the deputy editorial director for Talk Podcast.
And I'm your host, Ian Millhiser, and I'll be back in your feeds next week to talk more about this absolutely wild Supreme Court term that just ended. More about what we could see in the new term this fall. We'll see you then. The Weeds is part of the Vox Media Podcast Network. - The podcast for this podcast comes from Washington Wise, an original podcast from Charles Schwab. Decisions made in Washington affect your portfolio and your money every day.
Policy changes should investors be watching. Washington Wise is an original podcast for investors from Charles Schwab. The stories making news in Washington and how they may affect your finances and investments. listen to At Schwab.com/WashingtonWise. That's Schwab.com/WashingtonWise.
Transcript generated on 2024-05-28.