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“A Devastating Ruling”: Law Prof. Michele Goodwin & SCOTUS Attorney Kitty Kolbert on Overturning Roe

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As protests continue across the country in response to the Supreme Court overturning Roe v. Wade, speak with two leading legal scholars. Kathryn “Kitty” Kolbert is co-founder of the Center for Reproductive Rights and argued the landmark case of Planned Parenthood v. Casey before the U.S. Supreme Court in 1992, which upheld Roe v. Wade. She is the co-author of “Controlling Women: What We Must Do Now to Save Reproductive Freedom.” Michele Goodwin is chancellor’s professor at University of California, Irvine School of Law and author of “Policing The Womb: Invisible Women and the Criminalization of Motherhood.” Her new piece for The New York Times is headlined “No, Justice Alito, Reproductive Justice Is in the Constitution.”

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

AMY GOODMAN: Kitty Kolbert, you argued Planned Parenthood v. Casey before the Supreme Court 30 years ago, in 1992. Roe was reaffirmed in that case. This was about what? Spousal consent, men having to give women their consent for an abortion?

KATHRYN KOLBERT: Right, it was that and a number of other restrictions in Pennsylvania law that were upheld. But I think, strikingly, in '92, we expected the court to do exactly what they did here. And they didn't, because Justice Kennedy changed his vote at the last minute.

But as a result of Casey, while it preserved legal abortion in most — in all states across the country, it meant that many women, particularly Black and Brown women, women who are poor, women who lived in rural areas, women who were young, had very, very difficult times obtaining abortions because of the restrictions that it permitted.

Now, unfortunately, today, as a result of this ruling, those same women will suffer much, much more, because their ability to obtain abortion will be totally circumscribed. It’s a really devastating opinion, one in which all of us need to be as angry as we can be and to channel that anger to making a difference and changing what the court has done through the legislative process.

AMY GOODMAN: And how do you do that, I mean, through the legislative process? Now the former vice president, Mike Pence, is calling for Congress, the legislative process, to pass a nationwide abortion ban.

KATHRYN KOLBERT: And they could do that. They could do that. If they take control of the House of Representatives and the Senate with a Republican president after 2024, they could easily do that. And Mitch McConnell has said it’s on the table, it’s something that they will consider, which is just McConnell speak for “We’re going to do that.”

Our response has to be to take — to keep control of the House, to win a majority in the Senate that includes two additional senators who are willing to bypass the filibuster rule, and pass statutory protection for women.

But the reality is that states are also a huge impediment on this issue. As you said earlier, 26 states are expected to ban abortion within the next couple of weeks or months. That means that 40% of women of childbearing age or more will be affected. We’re talking about hundreds of thousands of women who will be seeking abortions for their unintended pregnancies having to travel hundreds and hundreds of miles to safe states.

And this is no way to provide healthcare. This is no way to live in a democracy. And it’s because the ultraconservative justices have taken back the Supreme Court and, frankly, have imposed their own ideological biases against all the rest of us. It’s a devastating ruling, and one in which our anger is appropriate and certainly should be heeded to make sure that we can switch this around.

AMY GOODMAN: Now, let’s talk about this moving pregnant people from one one state to another to have an abortion. The concerns of a number of, what, abortion funds, like one in Texas — corporations who said they’ll do this, they’ll pay for this — not clear that their workers would want to make it known to the corporation that they were pregnant. But abortion funds, for example, going inactive now, right at the time where they could get a lot of money, a lot of support all over the country, because they’re terrified that it means aiding and abetting. Can you clarify this? Or is the lack of clarity what will — is the plan that people will be afraid to do this, organizations will be afraid to do this, but it’s not actually codified in law, the ban, on that?

KATHRYN KOLBERT: Depend state by state, because some states, like Texas, prohibit aiding persons to self-manage their care. It’s not clear whether it also would prohibit women from traveling and aiding the travel. But the point is, you’re absolutely right, Amy, is the vagueness really scares people from taking action.

And let’s remember there’s like three things that are likely to happen. First, it’s women who could travel. And frankly, it is women with means who are most likely to travel, women who have the resources to be able to get on a plane or to drive 250 miles.

Other women will self-manage their abortion by taking abortion pills. And they will get them in a variety of ways, either through the internet or through prescriptions from foreign countries and, you know, mailing them from India or other pharmacies, or going to Mexico or going to Canada or, frankly, going to their friend who lives in Missouri and asking them — or, I mean, not Missouri, but going to California to their friend and asking for the pills there. I mean, there’s all kinds of ways to self-manage your care. But the problem — and I think Michele can talk about this even more graphically than I — is that many of those women will subject themselves to the potential of criminal prosecution, either for self-managing their care and getting the drugs illegally, or the people who are aiding or helping her to get information and to get the appropriate care.

You know, I think that we need to stand up and say this is not all right, make lots and lots of noise, a real — you know, make sure that these prosecutors who are adamantly opposed to abortion are taken out of office and defeated at the next election. And, you know, all of this will take time and will take effort and will take many, many millions of Americans standing up for our liberties. It’s possible. We have to start now.

AMY GOODMAN: Let me go to the tweet of Alexandria Ocasio-Cortez, congresswoman from New York. This is a concise overview about the possible ways to respond:

- “Restrain judicial review
- Expand the court
- Clinics on federal lands
- Expand education and access to Plan C
- Repeal Hyde
- Hold floor votes codifying Griswold, Obergefell, Lawrence, Loving, etc
- Vote on Escobar’s bill protecting clinics

“We can do it! We can at least TRY,” she said.

Let me put this question to Professor Goodwin. One of the points she makes, and that Senator Warren has made, along with 25 other elected representatives, is this idea of opening — of providing abortion on federal land, called what, federal enclaves, where there are often hospitals, on military bases, to pregnant people in red states. Can you explain what this is about?

MICHELE GOODWIN: Sure. You know, it’s an interesting point, because in her confirmation hearings, Justice Ruth Bader Ginsburg spoke about a client that she represented. It was Captain [Susan] Struck. This was before Roe v. Wade. And Captain Struck was in the military, and she was pregnant. She actually wanted to carry her pregnancy to term. The military required at the time that if you were in the military and a woman and pregnant, you must have an abortion or leave the military. Captain Struck wanted to stay pregnant. Ruth Bader Ginsburg thought that this would be a great case to challenge the laws that criminalized abortion, as in states, stay off; government, stay out of reproductive healthcare; let women decide on their own. Instead, it was the case that was Roe v. Wade, as we understand it, that the Supreme Court then ruled on 7 to 2 in 1973. But if you think about what Justice Ruth Bader Ginsburg was trying to do at that time and what Captain [Susan] Struck wanted, it was that on military bases, abortions were already accessible, available, and, in fact, if you were an employee of the military, you had to have an abortion rather than keeping your pregnancy. And so, this idea is actually a long-standing idea, because it’s already been in practice on military bases even before Roe v. Wade. Women were able to get abortions if they were in the military.

And so, opening up these federal enclaves for this kind of reproductive healthcare is meaningful for not just a reaction to Dobbs, but there are medical deserts, reproductive healthcare deserts all across the country, and there is a dire need for people to get the reproductive healthcare that they need. So, even if we had not seen the result of this Dobbs decision, that would have been a smart thing to do, particularly given the very high rates of maternal mortality and morbidity in the United States that connects to a number of issues, but one of them being that there is not good reproductive healthcare that’s accessible for so many vulnerable people who live in these areas where it is very hard to find a clinic or a hospital to provide basic healthcare, including reproductive healthcare.

AMY GOODMAN: Finally, Kitty Kolbert, Thomas’s concurrence, Justice Thomas’s concurrence, where he writes that we should move on from here to gay marriage, to contraception, can you talk about this?

KATHRYN KOLBERT: Yeah, I think he’s the only one on the court or in the majority that is willing to tell the truth. You know, Justice Alito seems to backpedal and say, well, he doesn’t think — the only rights that are affected are abortion rights. Well, that’s just bunk. I mean, the reality is, is the rationale that the court used overturn Roe and Casey is equally applicable to a whole range of what are called unenumerated rights, or rights that aren’t specifically listed in the Constitution but derive from our notions of liberty and equality. And that includes contraception. That includes gay rights. It includes trans rights. It includes end-of-life care. It includes the ability to make decisions about one’s child’s education. There’s a host of liberties — the right to travel isn’t mentioned specifically in the Constitution. So there’s a host of interests that are at play here.

Interestingly enough, Justice Thomas didn’t mention the right to marry a person of a different race, maybe because it affects him personally, as opposed to all these others that are just, you know, people he doesn’t care about.

But the reality is, is I do think that this ruling is extremely, extremely broad. It is written in a way that can expand. And frankly, state legislators are already attacking us, attacking contraception, attacking trans people, attacking gay marriage in a host of ways. Those attacks will make their way to the Supreme Court. And frankly, I think this court is likely to expand the ruling significantly.

AMY GOODMAN: And we just have 30 seconds, Kitty Kolbert, but the message that you have devoted your book to, that you are commenting after the overturning of Roe, the subtitle of the book, What We Must Do Now to Save Reproductive Freedom, the most important things people can do?

KATHRYN KOLBERT: Yeah, three things: one, help women; two, get active politically, that is, get involved in electoral politics — you may not like it, but we have to do it; and, most importantly, make some noise, because, of course, we can’t let them continue to take away our rights without saying defiantly that this is not OK.

AMY GOODMAN: Kathryn “Kitty” Kolbert, thank you so much for being with us, argued the landmark Planned Parenthood v. Casey before the Supreme Court 30 years ago, which upheld Roe. She also co-founded the Center for Reproductive Rights and is author of Controlling Women. Also want to thank professor Michele Goodwin, chancellor’s professor at University of California School of Law, author of Policing the Womb: Invisible Women and the Criminalization of Motherhood. We’ll link to your piece, “No, Justice Alito, Reproductive Justice Is in the Constitution.”

Next up, Missouri became one of the first states to enact a trigger law. We’ll speak with Yamelsie Rodríguez, president and CEO of Planned Parenthood in Missouri, about the stealth opening of a Planned Parenthood clinic across the border in Illinois as they close the Missouri clinic. Stay with us.

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Next story from this daily show

Missouri Enacts Abortion Ban Trigger Law. Planned Parenthood Opens Clinic 15 Mins. Away in Illinois.

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