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Overturning Roe: Slavery, Abortion, Maternal Mortality and the Disparate Effect on Women of Color

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The conservative-led Supreme Court ruled 6 to 3 on Friday to uphold a Republican-backed Mississippi law that bans abortion after 15 weeks of pregnancy, while voting 5 to 4 to overturn Roe v. Wade. Chief Justice John Roberts supported upholding the Mississippi law but not overturning Roe. Nine states have already banned abortion since Friday, and 17 more states are expected to do so soon. We speak with Michele Goodwin, chancellor’s professor at University of California, Irvine School of Law, whose 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: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

Today we spend the hour on the Supreme Court’s long-anticipated ruling Friday that overturned Roe v. Wade, the landmark decision that established the constitutional right to abortion some 50 years ago. The conservative court ruled 6 to 3 Friday to uphold a Republican-backed Mississippi law that bans abortion after 15 weeks of pregnancy, while voting 5 to 4 to overturn Roe completely. Conservative Chief Justice John Roberts supported upholding the Mississippi law but not overturning Roe. Nine states have already banned abortion since Friday; 17 more states are promising to do so soon.

In his majority opinion, Justice Samuel Alito wrote, quote, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

In their dissent, the court’s three liberal justices wrote, quote, “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

Conservative Justice Clarence Thomas sided with the majority but argued in a concurring opinion that other key landmark rulings establishing gay rights, the right to contraception, as well, should also be overturned.

Protests broke out nationwide in response to the ruling and continued over the weekend as thousands marched nationwide, with some facing arrest and police brutality in Los Angeles and South Carolina.

PROTESTER: This Supreme Court thinks that they can put a law on this land that the majority of this country does not support, that will strip away the basic human rights of over half of the people living here! I’m mad!

AMY GOODMAN: In states with abortion bans already in place, many clinics immediately stopped offering abortions Friday, saying it was the best way to protect staff and patients because of the legal uncertainty, with providers canceling appointments, asking patients to seek help elsewhere.

At the same time, reproductive rights activists are mobilizing to support patients with travel, funds and more.

This is Renee Bracey Sherman, executive director of We Testify, speaking at a protest this weekend.

RENEE BRACEY SHERMAN: It’s also going to be critical that you show up in four, five, six, seven, eight, nine months, and somebody is arrested for their stillbirth or their miscarriage or self-managing their abortions.

AMY GOODMAN: In our next segment, we’ll be going to Missouri, which became the first state to enact its trigger law after Friday’s ruling. This is Congressmember Cori Bush, a Democrat of Missouri, responding to the Supreme Court’s ruling Friday.

REP. CORI BUSH: Forty-nine years — I’m sorry — 49 years, and they stripped it away. … Thirty-six million people will be affected, and it’s “Oh, well.” Thirty-six million people, it’s “Oh, well.” Thirty-six million people, and this is a far-right, extremist Supreme Court that’s making this decision that affects other people, that affects lives, when Black women were — when we know that Black women, the leading cause of death before 1973 was the sepsis, was the sepsis that went along with these unsafe abortions. And to say, “Hey, we’re good if we’re going back there. We’re gonna send you back there,” to know that people are already hurting, that people need services — this is healthcare. It’s like mental health. It’s like going to get your — get the services for heart disease, get services for a toothache. It is healthcare.

AMY GOODMAN: In the past, Congressmember Bush has shared that she was raped and got an abortion as a teenager.

President Biden denounced Friday’s ruling and vowed to protect access to abortion pills and contraception. Meanwhile, Democratic Senator Elizabeth Warren and 25 other senators wrote a letter to Biden calling on him to open federal enclaves in red states to health clinics that provide abortion. This is Democratic Congressmember Alexandria Ocasio-Cortez speaking Sunday on NBC’s Meet the Press.

REP. ALEXANDRIA OCASIO-CORTEZ: What I believe that the president and the Democratic Party needs to come to terms with is that this is not just a crisis of Roe, this is a crisis of our democracy. The Supreme Court has dramatically overreached its authority.

AMY GOODMAN: For more, we’re joined by two guests. In Philadelphia, Kathryn “Kitty” Kolbert is with us, co-founder of the Center for Reproductive Rights. She argued the landmark case of Planned Parenthood v. Casey before the Supreme Court in 1992, which upheld Roe. She’s the co-author of the book Controlling Women: What We Must Do Now to Save Reproductive Freedom.

Also with us is Michele Goodwin, chancellor’s professor at the University of California, Irvine School of Law, host of the Ms. magazine podcast On the Issues with Michele Goodwin and author of Policing The Womb: Invisible Women and the Criminalization of Motherhood. She just has a piece out in The New York Times headlined “No, Justice Alito, Reproductive Justice Is in the Constitution.”

We welcome you both back to Democracy Now! Professor Goodwin, let’s begin with you. Can you talk about your response to the Supreme Court overturning Roe after almost 50 years?

MICHELE GOODWIN: Well, it’s good to be back with you, Amy, on this show.

The decision itself, just as we saw with the leaked draft, has many errors, omissions. It has a selective, if not opportunistic, reading of American history. It does not center — in all of its claimed originalism, in all of its claimed textualism, interestingly enough, it avoids the 13th Amendment. It even avoids the first sentence of the 14th Amendment.

And here’s what my New York Times piece was about. It was that when Congress abolished, through the ratification of the 13th Amendment, abolished slavery and involuntary servitude, they were not abolishing that just for Black men. They very well understood that involuntary servitude for Black women in the United States meant involuntary sexual assaults, rapes and then the reproduction after that, as Black women were forced to labor not only in the fields, but also labor under the weight, a different kind of shackling of slavery, which was sexual subordination and reproduction.

This was very well known. The abolitionist in Congress who led the way for the 13th Amendment spoke and wrote about this. Massachusetts Senator Charles Sumner was nearly beaten to death in the halls of Congress two days after giving a speech about the raping of Black women. Sojourner Truth spoke to it. I mean, it was clear. The New York Times, there were articles about it. So the very idea that there was no one thinking about involuntary servitude as being consistent with involuntary reproduction is just absurdist. It was written about everywhere. Everyone knew this as being one of the devastating effects of American slavery. And it was abolished with the 13th Amendment. And then, later on, with the 14th Amendment, it was still recognized that Black women were psychologically, physically and reproductively still being harmed in Southern states. Their children were being denied citizenship. Their children were being snatched and taken away from them. And the 14th Amendment was therefore then ratified.

The piece goes into depth in all of these categories to give an education to the Supreme Court and to our country to remember this, because, otherwise, Black women have been essentially erased from the Constitution. And by erasing Black women from the Constitution, we ultimately erase all women from the Constitution, because the 13th Amendment and 14th Amendment not only freed Black women from these bondages, but it also freed white women from these bondages.

None of this is given any kind of reading by the originalists and textualists on the Supreme Court, who seem to ignore all of that and have now rendered us to a country where there are free states, where individuals can be free in their bodies, and also those where it is nonfree. And one can’t help but understand this as being so consistent with the patterns of slavery and Jim Crow in the United States.

AMY GOODMAN: Let’s talk about the trajectory right through to now. People of color are most affected by the lack of healthcare that will be available when abortion is outlawed in state after state. Can you talk about the Duke study, about Black maternal mortality, and how much higher it is than for white people who are pregnant?

MICHELE GOODWIN: Well, I’m glad that you mentioned that, because what is also alarming in this opinion, and also in the draft opinion, is how it gives no regard to facts, concurrent facts. The United States ranks 55th in the world in terms of maternal mortality. It is not in league with Germany, France, its peer nations. Instead, it’s in peer company with nations that still publicly lash and stone women.

In 2016, the Supreme Court’s own record showed that women were 14 times more likely to die by carrying a pregnancy to term than by having an abortion. Once we flash what this looks like in terms of race, then we really get a sense of the horror that’s behind all of this, and again with the Supreme Court deciding that it would pay no attention to it. So, in Mississippi, we’re looking at 118 times — Black women more likely to die 118 times by carrying a pregnancy to term than by having an abortion. According to Mississippi’s own data from their Department of Health, a Black woman — 80% of the cardiac deaths in that state occur to Black women. Black women don’t make up 80% of the female population in the state but are 80% of the cardiac deaths during pregnancy. And nationally, they’re three-and-a-half times more likely than white counterparts to die due to maternal mortality.

But, Amy, that’s not all. If you actually look at certain counties within these anti-abortion states, then you see that Black women may be five or 10 or 15 times more likely to die by being forced to carry a pregnancy to term than by being able to have the medical care of an abortion. And it’s just that glaring and alarming. And what’s so stunning about it is that the Supreme Court gives no consideration to this data.

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

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