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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, we 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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StoryMay 30, 2022“Policing the Womb”: Law Professor Michele Goodwin on SCOTUS, Anti-Abortion Laws & the New Jane Crow
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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Today, a Democracy Now! special. I’m Amy Goodman. As the Supreme Court overturns Roe v. Wade, we spend the rest of the hour looking at the fight for reproductive rights.

On June 24th, the conservative court ruled 6 to 3 in the case Dobbs v. Jackson Women’s Health Organization to uphold a Republican-backed Mississippi law that bans abortion after 15 weeks of pregnancy, while voting 5 to 4 to completely overturn Roe v. Wade.

As protests continue across the country, we turn now to my conversation with two leading legal scholars who I spoke with after the ruling came down. Kathryn “Kitty” Kolbert is co-founder of the Center for Reproductive Rights. She argued the landmark Supreme Court case Planned Parenthood v. Casey, which upheld Roe in 1992. She’s co-author of Controlling Women: What We Must Do Now to Save Reproductive Freedom. And Michele Goodwin is chancellor’s professor at 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. Her piece for The New York Times is headlined “No, Justice Alito, Reproductive Justice Is in the Constitution.” I began by asking Professor Goodwin for her response to the Supreme Court overturning Roe v. Wade.

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.

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: That was Kitty Kolbert. She argued the landmark Supreme Court case Planned Parenthood v. Casey in 1992, which upheld Roe. She is author of Controlling Women: What We Must Do Now to Save Reproductive Freedom.

When we come back, we’ll continue our conversation with law professor Michele Goodwin, chancellor’s professor at University of California, Irvine School of Law. We’ll speak with her about her New York Times essay, “I Was Raped by My Father. An Abortion Saved My Life.” Back in a minute.

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“I Was Raped by My Father. Abortion Saved My Life”: Prof. Michele Goodwin on SCOTUS & the New Jane Crow

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