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Policing the Womb: Michele Goodwin Takes on Anti-Abortion Laws, Lays Out Reproductive New Deal

Web ExclusiveMay 06, 2022
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In an in-depth interview with University of California, Irvine School of Law professor Michele Goodwin, she discusses her book, “Policing the Womb: Invisible Women and the Criminalization of Motherhood,” and lays out a “Reproductive New Deal.” “There should be constitutional protections associated with the reproductive sphere,” says Goodwin.

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

We continue now with Part 2 of our interview with law professor Michele Goodwin. She is a chancellor’s professor of law at University of California, Irvine, author of the book, Policing the Womb.

Well, this week, the major breaking news, the Supreme Court appears set to entirely overturn Roe v. Wade and Planned Parenthood v. Casey, two landmark decisions that protect U.S. abortion rights. In his draft opinion, written by Justice Samuel Alito, he desperately grasps at history to buttress his anti-abortion argument, quoting Henry of Bracton’s 13th century treatise, which mentions punishment for abortions — as if somehow referring back to a time when women were considered property and being burned at the stake for witchcraft should control 21st century medicine and law. Justice Alito then provides a list of anti-abortion laws from various U.S. states enacted between 1850 and 1919. When these laws were passed, women had no right to vote. Most African Americans were either legally enslaved or, after emancipation, subjected to racial terrorism and lynching at the hands of law enforcement and the Ku Klux Klan. Traditions from these eras, Alito says in his rewriting of history, should dictate current law.

So, that’s where we’re going to begin Part 2 of our conversation with Michele Goodwin of the University of California School of Law. Her book, the full title is Policing the Womb: Invisible Women and the Criminalization of Motherhood.

If you can talk about these historical references, Professor Goodwin, and if they shocked you? They certainly dovetail with a kind of different history you tell in your book, Policing the Womb.

MICHELE GOODWIN: That’s right. It’s a very interesting cherry picking, the kind of selectivity that Justice Alito brings to this, which in so many ways is also completely alarming, alarming for the fact that it is not an accurate account. This draft opinion is stunning and alarming for what it omits. It is stunning for the citations that are chosen in it, and its also historical erasures. And that’s just to start, to just level start.

So, this period of time that he chooses to select ignores the period before, when abortions were not criminalized. The Pilgrims performed abortions. Indigenous people, on whose lands we are doing this program, performed abortions and all myriad form of healthcare. There were at that point not men running around with stethoscopes and lab coats. Obstetrics and gynecology was not even a field at the founding of the United States. This period that he talks about is a period that leads up to the Civil War. It is a period of time in which abortion, curiously, becomes criminalized because 100% — nearly 100% of reproductive healthcare was being done by women. About half of those were Black women, and then there were Indigenous women and white women. And these were the midwives. And the midwives — and if anyone thinks about it, well, that makes sense that 2,000 years ago there weren’t guys with stethoscopes and lab coats saying, “I’m your gynecologist.” It just simply did not exist, right? These were women doing the care and work for women.

But in a period of time leading up to the Civil War, obstetrics and gynecology slowly becomes a field. And there are men like Horatio Storer and Joseph DeLee, and then there had been Marion Sims, a notoriously terroristic gynecologist who experimented on Black women and failed to even provide them — denied them pain relief. Right? No anesthesia for them. He wrote in his autobiography, in fact, Amy, how he would have epiphanies in the middle of the night and then take his knives and other tools and literally cut into the bodies of Black women for his middle-of-the-night experimentations and epiphanies. He is considered the godfather of gynecology. A statue was erected in his honor in Central Park. But I digress.

But it’s those guys who helped to lead a movement against midwives. And the way in which this movement takes shape is to say, “Well, they’re doing something immoral, and that is abortion.” It was not about abortions; it was about monopolizing a field. And they were successful at leveraging themselves to be able to push midwives out of reproductive healthcare, take over this field for themselves. I mean, between that period of time that he quotes, that Justice Alito quotes, and the beginning of the 20th century, we go from 100% of reproductive healthcare being done by midwives to 1% at the beginning of the 20th century. And what was used to do that was to criminalize abortion. And these were very strategic doctors.

And I’ll just add one more point to it. This was also so deeply racialized, because they wrote about — their words, not mine — about how white women needed to use their loins and go north, south, east and west. It’s this collection of doctors who pushed for anti-immigration campaigns against people who were coming from Asian countries. It’s a period of our history that’s worth unpacking, not just for reproductive rights but for the racism and its intimacy with white supremacy.

AMY GOODMAN: When you refer to eugenics in your book, the U.S. era of eugenics, also Supreme Court Justice Alito, in his draft opinion, has taken up the line of reasoning coming from Justice Thomas that eugenics was always about curbing Black reproduction. You disagree with this.

MICHELE GOODWIN: Oh, history disagrees with this. Amy, the Supreme Court itself disagrees with it. The first case that the Supreme Court hears about eugenics is Buck v. Bell, a 1927 case, and there are no Black people to be found. The case involves a poor white girl from Virginia, Carrie Buck, who had been 16 when she had been raped by her employer’s nephew and became pregnant out of wedlock. The state of Virginia had been rounding up poor white girls in that state, these white girls that they did not want to have reproduce at all, because part of the 20th century — early 20th century white supremacy had whiteness within white supremacy. There was this effort to basically make sure that poor white people never reproduced again.

Carrie’s case goes up before the United States Supreme Court as a test case. The lawyer who’s assigned to her case was actually a eugenics sympathizer himself. The whole idea behind this was to make sure that eugenics would become legal in the United States, and states could then all round up all myriad form of poor white person, white people who were considered feebleminded, white people who were simply poor — that was it — and then force them to be sterilized. The case goes before the United States Supreme Court in 1927. And Justice Oliver Wendell Holmes says that the power that the state has to vaccinate is broad enough to cover cutting the fallopian tubes.

And with that, there are tens of thousands of poor white people who are forced to compulsory sterilization in the United States. The coming attractions at movie theaters in the United States were not about “we’ve sterilized this many Black people”; they were literally about “we’ve sterilized this number of white people.” And for anyone who doubts this, just do a Google search. Look in the Library of Congress. They have all of the images of the “fitter family contests” that were all about white people and the medals that white people could receive for being fitter, and then also the tragedies of what happened to poor white people — 1927, the Supreme Court. The fact that Justice Alito and Justice Thomas skips over the history of the Supreme Court, and instead rewrites it into something that it wasn’t, is something that we should all be concerned about.

AMY GOODMAN: I also encourage people to go to our website at democracynow.org to see our interview with Adam Cohen, who wrote Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck.

Professor Goodwin, you write about policing and criminalization around abortion, but also around women who want to have children. Can you tell us the story, the highly disturbing story you describe in your book, of Marlise Muñoz in Texas?

MICHELE GOODWIN: Yes. I mean, when we think about this as, again, the plural of reproductive rights and begin to look beyond abortion, then we see the tactics that have been invested in by this anti-woman, anti-trans — and it’s all together, and with a very specific focus on Black and Brown women, but a reach that goes everywhere.

Marlise Muñoz was a healthcare worker. She was an EMT. And she had a brain aneurysm, and she was pregnant. She experienced brain death. Brain death is well defined, and has been well defined and accepted for half a century in the United States. At the period of brain death, a person who has a “do not resuscitate” order would then not be resuscitated, allowed for the body to physically die, and cremated or buried or whatever that person has decided, or the family members. But in Texas and in nearly three dozen states, there’s what are called medical exclusion laws. The name doesn’t necessarily tell us what substantively it does. Substantively, what it does is it takes away that kind of decision-making for a woman who is pregnant.

So, in Marlise’s case, when she was rushed to the hospital, the hospital officials decided that she should be on a life-sustaining treatment. Only she was brain dead. Marlise’s husband, Erick Muñoz, and her parents said, “We do not want her on life support. She is brain dead. We want to be able to, with dignity, have her life come to a close.” Twice, she was medically sustained. There was a tracheotomy that was performed. The hospital ultimately taped her eyes shut, because it put her on a bed that violently rocks back and forth. There were pro-life protesters that came to the hospital and protested outside, saying that medical science didn’t matter, that in a week Marlise would be alive.

For 62 days, Marlise’s body was forced to be an incubator for a fetus that was not developing well at all, and against the will of her husband and her parents. They actually had to sue the state of Texas in order for Marlise to be released from the hospital and taken off of life support. She was dead. It is incontrovertible that brain death is death in the United States — except now if you happen to be pregnant person, a pregnant woman. Then, brain death somehow, in these anti-abortion states, means something different. And it is a tragic case in Marlise’s case. Her father talked about how her skin had become so hard, her body had become so hard, it was like a mannequin, touching her. The stench was so severe that it was hard for people to come into the room. But this is what the state of Texas is seeking to normalize.

AMY GOODMAN: We’re talking with professor Michele Goodwin. The stories you tell in this book, like of Bei Bei Shuai in Indiana, an immigrant woman from China who attempted suicide. If you can tell us her story? She was pregnant, and the fact that she was charged with murder.

MICHELE GOODWIN: Days before Christmas a few years ago, Bei Bei Shuai was in a parking lot, and her boyfriend threw money at her and told her that he was going away and never wanted to see her again. Distraught, Bei Bei Shuai sought to kill herself. She got rat poison. And it’s interesting to note that for women in China who are attempting to commit suicide, it’s not unusual to use — turn to pesticides and things like rat poison. Well, she ate five — six packets of rat poison in order to kill herself.

She survived, because her friends found her, rushed her to the hospital, where doctors engaged in very aggressive treatments to try to save Bei Bei Shuai’s life and to also try to preserve and save the fetus, as well. Angel was her child that was born and survived for four days and then died. Doctors were not clear exactly why and how Angel died. Angel could have died because of the very aggressive life-sustaining treatments that they tried to provide. They didn’t know.

In any case, Bei Bei Shuai was charged with first-degree murder. The prosecutors in the state of Indiana sought over 40 years of incarceration for Bei Bei Shuai. They charged her with first-degree murder and also attempted feticide. At the time in which the laws for feticide were enacted in the state, legislators said this would never be used against women and that the purpose for them was actually to go after people, men, who beat up their girlfriends and wives during pregnancy. But that was not the case in Bei Bei Shuai’s scenario. And what’s interesting to note there, Amy, is that in the state of Indiana, it’s not a crime to attempt to commit suicide. It is not a crime. And yet prosecutors went after Bei Bei Shuai as a pregnant person because she attempted to commit suicide while pregnant.

And I want to just add one other piece to that, too, that really helps us to see just how cruel the punishment is. In years prior to that, in using this feticide law, prosecutors sought three years in connection with a woman being stabbed to death while pregnant by her boyfriend — three years in his case for what happened to the fetus. In a case involving a bank robber who robbed a bank and shot a teller in the belly twice, killing twins, it was five years. In Bei Bei Shuai’s case, 40 years. And I think that really helps to establish just what this policing means and how it is a very cruel and punitive turn towards control of women.

AMY GOODMAN: You also note, Professor Goodwin, that hospitals and hospital staff serve as surrogates of the state. I mean, I go back to the Lizelle Herrera case, the Latina woman in Texas who was charged with murder, who apparently went to the hospital and, they said, had — was dealing with a self-induced abortion. We don’t know the details exactly. But it was clearly people in the hospital who is believed were involved with talking to the state that got her charged. The charges were dropped, because the public was so outraged by what happened to her. And this was very recent.

MICHELE GOODWIN: That’s right. It’s another example. And it’s an important example as to how doctors and nurses have essentially become snitches for the state — not all doctors, but a significant enough number of them that in the state of Alabama they kind of have a hotline relationship with prosecutors in that state. And I know this because I spent time in Alabama interviewing prosecutors, in person and then also by phone, interviewing them as to: How are you coming to prosecute these women in your state connected with their pregnancies? And I was directly told it’s because of the relationships that have been formed and built with nurses and doctors.

And, of course, this is the backdrop of the case involving the dozens of Black women in South Carolina where the Medical University of South Carolina purposefully engaged in creating a dragnet with police and prosecutors so that they could explicitly and specifically target Black women who used crystallized cocaine during pregnancy. Now, for your audience to be clear, there is no statistical difference in terms of the rate of use of crystallized cocaine between Black women and white women at all. But the Medical University of South Carolina wanted to focus only on Black women. And, in fact, in their dragnet, which included dozens of women literally being dragged out of their hospitals or shackled and chained during delivery, there was only one white woman who was implicated in their large and official dragnet. And that was a white woman on whose medical chart one of the head nurses wrote “lives with Negro boyfriend.” And that was enough to get her lumped in with the Black women who were singled out for this kind of chilling and horrific treatment. And all of this is important to know, and all of this we would have seen, if in fact there were broader attention paid to reproductive rights as a plural, rather than as a singular item.

AMY GOODMAN: Where does HIPAA fit into this, the privacy of patients being respected?

MICHELE GOODWIN: Well, that is out of the window in these cases. There have been arguments made that in the cases involving women who are pregnant, that HIPAA should not apply because prosecutors see the fetuses as another person and a person who’s been placed in peril and in danger by the conduct of these women.

And here, I think, is something important to note, because in Justice Alito’s draft opinion, he references, through quotation marks, the way in which the state of Mississippi now regards fetuses. The state of Mississippi regards fetuses as unborn children. But what’s interesting about the cherry picking that Justice Alito chooses to do, and how he frames himself as an originalist and textualist — but one important aspect of the text of the Constitution that he leaves out — and so has Justice Thomas — is that the Constitution recognizes only people who are born. Very specific. That is the language of the 14th Amendment. So, while Justice Alito, in this opinion, writes about the 14th Amendment, he leaves out the fact that the 14th Amendment makes very explicit that citizens of the United States are people who are born, not people who are unborn, as now Justice Alito and whomever the other four justices are who have signed on to his draft opinion.

AMY GOODMAN: Professor Goodwin, at the end of your book, you write about a Reproductive Justice New Deal. Can you explain what your recommendations are?

MICHELE GOODWIN: Yes. We have to understand that in these times, nobody is really safe. This is really a backsliding of democracy. This is really a trampling of the rule of law in many ways. And if we had more time on it, we could talk about just how Justice Roberts fits into that. But I write about —

AMY GOODMAN: Please do.

MICHELE GOODWIN: OK. I write about a Reproductive New Deal as the urgency of these times in recognizing that we’re all vulnerable. People who are LGBTQ, as we see in Texas, have become vulnerable; in Florida, the “Don’t Say Gay” legislation, which is now sweeping across the country; the attacks on parents and trans children in Texas. In this Reproductive New Deal, I outline that there should be constitutional protections associated with the reproductive sphere, and, in fact, with just simply the human sphere. And I delineate what all of that means, step by step, much in relation to just the kind of arc that we’ve talked about on your show this morning. Across all of these areas, we need to think about protecting people who can become pregnant, and seeing those as fundamental constitutional rights all along. And we don’t have an Equal Rights Amendment. And this is a means of explicitly getting at these various areas in which legislators have sought to basically strip away any form of human dignity, privacy, autonomy and equality from anybody who has the potential to become pregnant. And we are largely talking about women and girls.

And when I mentioned Justice Roberts just now, it’s interesting to see how Justice Roberts understands just how vulnerable the Supreme Court is as being perceived as a legitimate institution. And, in fact, the majority of Americans do not see — do not have confidence in the Supreme Court as an ethical institution, as an institution that reflects their values, as an institution that reflects them. And so, one can actually see Justice Roberts, who is not a champion of reproductive rights, actually siding with liberals on the court when it’s come to Texas’s S.B. 8 law. And in the 2019-2020 term, the last term in which Justice Ruth Bader Ginsburg was alive, Justice Roberts sided with the liberals in a case that’s not much talked about, but June Medical v. Russo. And again, it’s not because he’s a champion of reproductive rights, but it is because, just a few years before that, the Supreme Court had struck down two Texas laws that sought to infringe upon abortion rights. The state of Louisiana then enacted an almost exact law and basically dared the Supreme Court to strike down the law. Well, with Justice Roberts’ vote, they were able to strike down that Louisiana law. And I think that for Justice Roberts, part of this is about the legitimacy of the court, that the court shouldn’t be subjected to the political whims of a particular time. But this is where we are.

And as to the leak, a very interesting thing is what happened after June Medical v. Russo. And that was the attacks on Justice Roberts, the attacks that he needed to step down. And these were all from the right, that he needed to step down, threats on his life. These haven’t been reported much, but in the wake of the leak, it’s something that I’ve been thinking about in terms of who gets harmed by this and who has to think about this in terms of where his ideology lies. And that’s Justice Roberts.

AMY GOODMAN: That’s right. I mean, he is not — his title isn’t chief justice of the Supreme Court, it’s chief justice of the United States. He heads that court and cares about its legacy.

MICHELE GOODWIN: That’s right.

AMY GOODMAN: Michelle Goodwin, we want to thank you so much for being with us, chancellor’s professor at University of California, Irvine School of Law and founding director of the Center for Biotechnology and Global Health Policy, host of the Ms. magazine podcast, On the Issues with Michele Goodwin, and author of the book Policing the Womb: Invisible Women and the Criminalization of Motherhood.

To hear Part 1 of our discussion, go to democracynow.org. I’m Amy Goodman. Thanks so much for joining us.

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