As the Supreme Court is poised to strike down Roe v. Wade, we speak with law professor Michele Goodwin, who has written extensively about how the criminalization of abortion polices motherhood. She discusses how on the eve of the court’s oral arguments in the Dobbs case in November, she wrote about how an abortion saved her life. She describes how the U.S. has historically endangered and denied essential health services to Black and Brown women, and calls new abortion restrictions “the new Jane Crow,” warning that they will further criminalize reproductive health and encourage medical professionals to breach their patients’ confidentiallity and report self-administered abortions to law enforcement.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.
Before we begin our next segment, a warning to our viewers and listeners: It includes descriptions of sexual violence.
Yes, we end today’s show looking at how the Supreme Court appears set to overturn both Roe v. Wade and Planned Parenthood v. Casey, two landmark decisions that protect U.S. abortion rights. On Monday, Politico published a leaked draft of Justice Samuel Alito’s majority opinion in the case known as Dobbs v. Jackson Women’s Health.
It was on the eve of the court’s oral arguments in the Dobbs case in November that law professor Michele Goodwin wrote a guest essay in The New York Times. It was headlined “I Was Raped by My Father. An Abortion Saved My Life.”
In a minute, Professor Goodwin will join us. First I want to read how her essay begins. She writes, quote, “On Wednesday, the Supreme Court will hear oral arguments on the constitutionality of a 15-week abortion ban in Mississippi that provides no exceptions in cases of rape or incest. What’s at stake in this case matters to the countless girls and women who have been raped — including those who, like me, were raped by a father, an uncle or another family member.
“It was the early morning of my 10th birthday the first time that I was raped by my father. It would not be the last. The shock was so severe that I temporarily went blind before I began the fifth grade a few weeks later. By the time the school year began, my father had taken me to see a battery of doctors — a medical explanation would paper over the fact that the trauma caused by his sexual violence had caused my body to shut down.
“The physiological suffering that I endured included severe migraines, hair loss and even gray hair — at 10 years old. While other girls may have longed for puberty, I loathed the idea of it. My body became a vessel that was not mine. It had been taken from me. I lived in fear of the night, and the footsteps outside my bedroom door.”
Those are the opening words of Michele Goodwin’s New York Times guest essay last November headlined “I Was Raped by My Father. An Abortion Saved My Life,” again, written on the eve of the court’s decision that could overturn the constitutional right to abortion.
Michele Goodwin joins us now. She’s chancellor’s professor at University of California, Irvine School of Law, founding director of the Center for Biotechnology and Global Health Policy, and has written the book, Policing the Womb: Invisible Women and the Criminalization of Motherhood.
Professor Goodwin, welcome back to Democracy Now! We appreciate you joining us again this week. Can you start off by talking about why you chose to write that essay?
MICHELE GOODWIN: Amy, it’s important that we all understand that the new aspect of anti-abortion provisions includes an aspect that we would not have seen even five years ago. And that is that they make no exceptions for cases of rape or incest.
Now, these laws, on their own, are really quite chilling and horrific when we understand, just as a baseline, the importance of reproductive liberty and freedom and when we understand that a woman or girl is 14 times more likely to die by carrying a pregnancy to term than by an abortion in the United States. So, that’s just a baseline anyway. But then, when we add onto it that these laws have this kind of punitive aspect, as well, such that if you have been raped or that you have somehow survived incest, that you, too, may no longer have an exception that would provide for the ability to terminate a pregnancy, then we really understand that these laws have nothing to do, and they never have had anything to do, with protecting, respecting the autonomy, the dignity, the privacy of women or girls. In fact, they’re just simply cruel types of laws that are power plays that fit into a history of controlling women’s bodies and a history, quite specifically, of controlling the bodies of Black and Brown women. I mean, it’s been all women who have been subjected to the cruelties of such laws, but they have a particularly pernicious effect when we actually understand the historical implications, too.
As to rape and incest, I thought it was really important to legitimize that conversation and move us away from the taboo where we’re not supposed to talk about those things and where, clearly, the Supreme Court is not talking about that at all, as it was not raised in oral arguments. And in the leaked draft opinion that was circulated this week, Justice Alito does not even bother to actually mention rape or incest in any part of the nearly 100-page draft opinion.
AMY GOODMAN: When you talk about the health of African American women, also the mortality rate, maternal mortality rate of African American women, talk more — go more deeply into how these laws so deeply affect pregnant people all over the country, but particularly African American women and low-income women.
MICHELE GOODWIN: That’s right. I mean, as a general matter, we should all be horrified, because as a general matter, Black women are the canaries in the coal mine. What happens to them eventually reaches everybody else, though not always to the same degree. And that’s also been historically true, as well, as you look at states like Mississippi, Alabama, Texas.
You know, as a national matter, Black women are nearly four times more likely to die than white women by carrying pregnancies to term, three-and-a-half times more likely. But when you drill that number down and you actually peer under the hood and you look in states such as I’ve mentioned and you look even deeper within certain counties that have high populations of Black women, and you see then, well, in those places, Black women are five, 10, 15, 17 times more likely to die by carrying pregnancies to term than their white counterpart. And if you look at that national statistic that I gave you, that women generally are 14 times more likely to die by carrying a pregnancy to term than an abortion, well, in Mississippi, it’s over 100 times more likely to die — in fact, nearly 180 times more likely to die — if you’re a Black woman in Mississippi and you’re coerced into carrying a pregnancy to term. You’re that much more likely to die than by having an abortion.
And so, these alarming, really alarming statistics, that in any other category of health, if we heard that, the alarm bells would be ringing, and the government would be saying, you know, “Don’t choose the alternative at all. We want to keep you alive.” But what’s very interesting, when it comes to pregnancy and pronatalism in this country, it’s not about actually caring about the health of women, girls, people who can become pregnant. Not at all. Those alarm bells do not ring, even though the data that I’ve just shared with you comes from the CDC. It comes from the departments of health in these individual states. This is not data that’s being made up by people who are pro-choice. This is data that we’re getting from the governments in Florida, in Texas. This is Governor Abbott’s data that helps us to know that Texas is one of the most dangerous places in the entire developed world for a person to be pregnant.
AMY GOODMAN: I wanted to ask you about the Louisiana law — well, it’s not a law yet, it’s been proposed — that makes the destruction of a fertilized human egg at any stage of its development an act of murder, punishable presumably by Louisiana’s death penalty. I mean, this is astounding. You’re talking about — what about a person who works in a fertility clinic, who is holding a test tube —
MICHELE GOODWIN: Sure.
AMY GOODMAN: — with a fertilized egg and drops that test tube? Could they be charged with murder?
MICHELE GOODWIN: Well, this is where we’re in a space that I call the New Jane Crow, these laws that are not rational, they’re quite illogical, and, even more, they’re punitive, they’re cruel, they’re absolutely excessive. You know, if you think about the work of Pauli Murray, she was in many ways the godmother of the civil rights movement. Thurgood Marshall said that the book that she wrote on race laws was the Bible of the civil rights movement. And it’s about 800 pages, single-spaced, all of these crazy, really crazy Jim Crow laws, such as, you know, Black people can’t play checkers in the park — that ridiculous, that you think, “Who in the world thought of that?” — and would connect a fine and also criminal punishment if Black people are caught playing checkers in the park.
Well, in the New Jane Crow, we see laws such as and propositions such as what you’ve just described. They make absolutely no sense, but they’re absolutely cruel. And they’re meant to cause fear and to chill behavior. And their reach is beyond what we could grasp or even imagine. And that’s also really what Policing the Womb is about. It is a warning call, because we’ve already seen, again, as Black women in the canaries — canaries in the coal mine, we’ve seen that kind of punitive punishment, with Black women being dragged out of hospitals in shackles and chains in the late 1980s and '90s because they were imperfect in how they carried their pregnancies — no exact law saying that they could or should be dragged out of hospitals in such punitive ways — or giving birth in prison and on toilets and concrete floors. But the specter of policing their pregnancies, this kind of specter that the state owns everything with regard to your reproductive capacities, leads us into a space where there's dramatic surveillance. And it’s frightening for people. And that’s what these laws are meant to do. Yes, they’ll criminally punish, and possibly even death sentence, but they’re meant to instill fear in people.
AMY GOODMAN: I mean, you look at a most recent case that got a good amount of attention. It was the case of Lizelle Herrera. She is the Latinx woman in Texas who was charged with murder for, quote-unquote, a “self-induced” abortion. Now, because of groups like the Frontera Fund and women of color massively protesting, very much now that’s the exception to the rule. And she was released, and the charges were dropped. But if the Supreme Court rules as we think it will, based on this leak, this will become the rule, the rule of law.
MICHELE GOODWIN: Yes. Well, what we’ll see is just like in Jim Crow times or antebellum times. There are places where women can be free and girls can be free and may not have to worry. And even there, I would put some caution around it, because in California just a couple years ago, in the valley, there was a prosecutor who attempted to prosecute — in fact, was prosecuting — a woman for murder in the case of her stillbirth.
But, yes, what we will begin to see is that there will be states where people will not be free, where they will in fact be policed. And that kind of policing will also be connected to sex profiling, just like racial profiling — right? — this hyper-intensive look at what are girls and women doing with their bodies. There will be a turn to and pressure on nurses, on doctors, on medical staff to breach millennia-old practices of confidentiality between themselves and their patients. And they will breach that and will share that information, just as we saw in that case, with law enforcement. And then the next step will be arrest.
And this is not just simply anecdotal. As I record in my book, in the state of Alabama, already there have been hundreds of women who have come under the inspection of the state, charged and arrested under fetal endangerment — or child endangerment, in that case — laws, laws that would extend child, the definition of a child, to a fetus. And in Alabama, as I’ve mentioned, Black women, the canaries in the coal mine there, the majority of those women happen to be white. But they all are poor, or the vast majority of them are poor or working-class women, who have already come under the attention of the state in this prurient kind of way.
So what we have to understand is just what we’ve seen at the Supreme Court level, this attack that’s finally reached its pinnacle up to the Supreme Court to dismantle Roe v. Wade, this work has had tentacles. And it’s been working to criminalize women and also to impose civil punishments associated with pregnancy.
AMY GOODMAN: I wanted to ask you, Professor Goodwin, about the medication abortion, the pill. The L.A. Times’ lead story, “Abortion pills: A post-Roe game changer — and the next battleground.” The opening line, “The future of abortion in the U.S. is moving to the mailbox.” It’s also the front-page story today of The New York Times, “In Abortion Fight, Pills Could Be the Next Focus.” And it might surprise some people to know that more than half of abortions in the United States are result of taking these pills. You just did a podcast on this. Can you talk about this issue?
MICHELE GOODWIN: That’s right. That’s right. So, in Europe, this has been liberalized for decades. And due to political machinations and with the Food and Drug Administration, which at times can be captured by outside sources, it was stalled in the United States. But now, for more than a decade, just about a decade in the United States, we have a significant number of pregnancy terminations, abortions, being done through medication. They’re incredibly safe. The World Health Organization has compared an abortion to the safety of a penicillin shot. So these pills are very, very safe.
It’s worth noting that during the Trump administration, of over 22,000 drugs that one could receive in the mail during the height of COVID, medication abortion, these pills, were the only ones where a person had to go to a clinic, to a hospital, in order to receive them. So there is a way in which they’ve been selected out for a different kind of treatment than any other kind of prescription.
That said, they are accessible. And for people who are wondering now, women who are wondering now what comes next, well, these pills are accessible, and find a source where you are able to get them. And there are underground sources, as well, that are online, where folks are told this is how you order them, and they can be sent to a friend, and they can get them to you. There are a myriad ways of getting that done.
But the attack will be exactly that. The attack will come to the mailbox in order to try to shut down access to abortion in every means possible, including not just shutting down the clinics where surgical abortions can take place, but also searching the mailbox in some form of a way. So we’ll begin to see myriad laws being shaped that try to get at that, that makes it illegal to receive pills in the mail, that make it illegal to send pills in the mail, and any other. I mean, it’s amazing the kinds of innovations that these legislators can come up with to try to curb rights and dismantle rights. And they’re not very good and not committed to actually saving the lives of people who actually end up pregnant, want to stay pregnant or don’t want to stay pregnant.
AMY GOODMAN: Professor Goodwin, in your book, Policing the Womb, you write, “Arguably, abortion has become so fundamentally intertwined linguistically and conceptually with the terminology of 'reproductive privacy' and 'reproductive rights' that little else fits within the taxonomy. This is a mistake,” you write. Why?
MICHELE GOODWIN: Well, it’s been a mistake, when you think about the following. If you think about civil rights, that’s a plural. It has an “S” on it. And as having an “S” on it, it means that we’re not just talking about Brown v. Board of Education, right? We’re talking about education, employment, housing, the ability to swim in the pool in your neighborhood and walk through the park. We’re talking about accommodations in all of those areas.
And when we center just one aspect within abortion rights or within reproductive rights, then we’re talking just about abortion. Then we’re missing sex education, access to contraception. We’re missing conversations about sterilization. We’re missing all of everything else. And that kind of blind spot then means a failure to pay attention to many of the other areas where there have already been encroachments on reproductive health rights and justice.
And so, this is why we’ve missed largely what’s been happening to Black and Brown women, the kind of most horrific treatment by government during their pregnancies. This is how the agenda of personhood was missed in the 1980s and ’90s when it was being inflicted on Black women. You know, when prosecutors are claiming that your embryo or your fetus is a living born child — and it is not, by any constitutional definition — then everybody should be alarmed. But in the 1980s and ’90s, it completely missed those in the reproductive rights movement who were only focusing on abortion.
But here’s the other thing, Amy. Given the histories of coercion and coercive reproduction in the United States, that dates back to the forced kidnap and trafficking of Black women, then we should all be concerned about the fact that Black women, for centuries in this country, have not been accorded dignity when they are carrying pregnancies to term, and when they’re carrying pregnancies to term that they want. And we should want it all. We should want that women should be able to survive and have dignity when they are pregnant and want to be pregnant. And we should also care about government coercively forcing women to carry pregnancies that they don’t want, for the benefit of random state legislators that these women do not even know.
AMY GOODMAN: Michele Goodwin, we want to ask you to stay with us so we can talk more extensively, specifically about your book, Policing the Womb: Invisible Women and the Criminalization of Motherhood. And we’ll post that at democracynow.org. Michele Goodwin is chancellor’s professor of University of California, Irvine School of Law. I’m Amy Goodman. Thanks so much for joining us.