Regina de Heer: We're out in front of the Supreme Court. What brings you out here today?
Hannah: I wish I could say it was a trip with my toddler to the museum to see dinosaur bones and stuff, but we've had to put that to the side and come out here to demonstrate support for protecting women's rights.
Mikaela: My daughter is three months old. I want her to live a life that's everything that she wanted to be.
Sarah: I am heartbroken. Every one of the Supreme Court justices sat in front of Congress during confirmation and said that Roe v. Wade was settled law and it appears they weren't truthful. Breaking that kind of trust, it's eye-opening, it's hurtful, it's concerning.
Hannah: My mom came of age in the '70s and she just can't believe the place that we're at now. She had hoped that the next generation and her grandchild's generation would never be seeing this happen.
Teal: I already talked to my mom and my grandmother and we're supposed to celebrate Mother's Day this weekend. If there's a protest here, we're celebrating here.
Kai Wright: Welcome to the show. I'm Kai Wright and Happy Mother's Day. We are going to spend this holiday talking about the bodily autonomy of women and about the right for all of us to plan the families we want. Obviously, the massive news of the past week has been the leaked draft of Supreme Court Justice Samuel Alito, his opinion on abortion rights. If it does, in fact, become the final opinion, it will reverse Roe and previous court opinions in perhaps the most aggressive way possible.
It's worth reminding ourselves of a couple of things at the outset of this hour. Americans are not evenly divided on abortion rights, not even close. The overwhelming majority of Americans and polls going back to the mid-1990s support a woman's right to choose whether to give birth to a child. Today, by 2-1 margins, Americans say abortion should be legal in all or most cases.
This is not a both-sides debate. This is rather a question of whether a minority should be able to impose its religious and ideological views on the majority. That has been true for nearly 30 years, nor is this a debate about the desire for motherhood itself. The large majority of women who choose to get abortions are already mothers actually. Three-quarters of women who choose abortions are living at or below the poverty line.
My first guest tonight says this is actually a debate about our country's unequal history. Susan Matthews is the news director of Slate and host of its upcoming season of Slow Burn, which will focus on the history of Roe v. Wade. The morning after Justice Alito's opinion leaked, Susan published a short essay titled The Constitution Wasn't Written for Women. I caught up with her earlier this week.
Susan, morning-after hot takes don't often stick with me, but yours very much did because it cut right to the bone of the matter with all these arguments over the Constitution, it felt like. Let's start with Justice Alito's draft opinion itself. He sums up his argument bluntly in the second paragraph. Just in case someone listening hasn't really taken in those details yet, what does he say in that paragraph?
Susan Matthews: The argument that Justice Alito was making in this draft opinion is pretty familiar to anyone who's been following the debate on abortion, I would say. Basically, he sums it up in the second paragraph, where he says that the right to an abortion was wholly invented in 1973 with Roe v. Wade. The Constitution makes no mention of abortion. When the justices decided the Roe v. Wade decision in 1973, they were essentially acting as legislators instead of as Supreme Court justices.
Kai: Because abortion does not appear. Literally, it does not appear.
Susan: Because abortion does not appear in the Constitution, because it's not mentioned. I can go on to say, the thing that strikes me about this is, why would you expect abortion to be mentioned in the Constitution? The Constitution was written by white men who did not concern themselves with the problem of reproduction. I think that this is part of the argument of the whole conservative movement.
I think it's a lot of why people are feeling so frightened with this opinion is that it's not only attacking the right to abortion. The argument that every single right that we have that unenumerated rights need to be found in the Constitution really does bring us back to the only things that are guarantees are things that were written out over 250 years ago. I think that that's the thing that we should all be worried about.
Kai: Right, unenumerated rights like really just to break down that point. The point is that if they did not say it, if they did not name you and you're right, then this opinion believes that that right shouldn't exist, which, of course, begs exactly the question you raised. A lot of us didn't exist to the men who wrote it at the time. We've talked repeatedly about the history of the 14th Amendment on this show. Listeners, if you missed it, check out the episode from just a few weeks back in which Eric Foner walks us through this history.
The whole point is that this amendment, the 14th Amendment, 1866 is the point at which we say as the country that the Founding Fathers, literally men, literally fathers, were dumb-headed about rights. That was the whole congressional debate and purpose of the amendment. It feels like that idea is so lost. I just never hear that in the popular conversation about the Constitution. I don't really have a question other than to-- You're following this stuff closely. Am I on the moon to think like, why is it that part of the conversation?
Susan: I'll answer this by scanning back a little bit. I just wanted to acknowledge that this idea that I've had, I wrote it that night, but it's something that I've been thinking about for several months now. I'm actually working on the next season of Slate's podcast Slow Burn. It's all about the history of Roe v. Wade. I've been thinking about how Roe v. Wade was decided and what the grounding is for months now.
I'm not a lawyer. A lot of people that I work with at Slate are, but I'm coming at it with the slightly less legal idea. I think that what I would say is that when you talk to anybody about what Roe v. Wade is based on, I think most people know that it's a right to privacy. I think that most people know that there's a general consensus that the way that it was decided is a little bit weak.
The thing that I've really thought about when I've gone back and I've thought about how they were grounding it in the 14th Amendment and what the 14th Amendment means is that I think that it would be a lot better if we could talk about the right to abortion as the right to family autonomy. I think that that's just a much stronger basis and that's also actually much more consistent with what the 14th Amendment means.
You mentioned the 14th Amendment written in 1866 to correct for a lot of wrongs. One of the things that it's really correcting for is the fact that the enslaved could not decide their own families. They could not marry who they wanted. They could not stay married to who they wanted. They could not keep their children. Family autonomy is so obviously consistent with any sort of idea that you have of a citizen's right to life, liberty, and happiness, but to then argue that that is not talked about in our Constitution just strikes me as completely insane.
You're not looking at how the document was improved and updated as we as a society decided that we were going to move forward from what the original documents left out. I would just argue that when we think about Roe v. Wade, I just think it's a little bit of a mistake to say that the basis for this is only in the relationship between a woman and her doctor because I think it's about something much more profound and something that is very easily identified within the Constitution.
Kai: Who is Ann Hill and why is she important to the story?
Susan: Ann Hill was a woman whose story we're telling in the third episode of this upcoming season of Slow Burn. She goes to Yale Law School in 1968. In her first weeks at Yale Law School, she finds out that she's pregnant and she decides that she's going to have an illegal abortion. She actually gets her abortion in New York City from a doctor named Dr. Nathan Rapoport. For a long time before that, he had actually just gone by Dr. X. He was a pretty famous abortionist in New York City.
When she's getting the abortion, he is in her face with these legal papers saying, "I'm being prosecuted. If you're a law student, can you help me?" She gets furious and she realizes that she was put in this position because she doesn't have this right. She gets connected with this group of women and they called themselves-- Actually, I love this. They called themselves Women v. Connecticut. That was the name of the group. They bring a lawsuit as women against the state of Connecticut, arguing along 10 different lines of argument for their right to abortion and why the right to abortion is, in fact, grounded in the Constitution.
They bring that suit in 1972 and they win and they win twice. Their victory, actually, it comes down for the second time in September of 1972. Roe v. Wade is argued in October of 1972 for the second time. The opinion and their argument actually goes on to affect how Roe v. Wade is decided. Ann Hill is just a woman who got really mad because of something really awful that happened to her, and then she really did something about it.
Kai: She's going to come up in the upcoming podcast. You mentioned her in the piece you wrote this week too. The way you talked about her really struck me because there's all the legal stuff. You said as an answer to Justice Alito, the reason why abortion appears in the Constitution is that people like Ann Hill have said it must. I just want to prompt you to say more about that.
Susan: I think that Ann Hill-- the thing that really struck me about her is that she had this kind of confidence and this kind of tenacity. One of the things that has really hit me doing this research into this series in the early 1970s is that these are women who are 50 years out from getting the right to vote. We're now 50 years out from that. Ann Hill was still in a place where she was confident that she could argue her way into a society that did not make space for her.
She's in this class at Yale Law School when she's one of a handful of women who's in this class, but she decides to take what she's learning in law school and to actually apply it to the Constitution to make the world accommodate her and to take notice of her. I just think that that energy is something that we really need to bring into what's happening now.
Kai: In this past fall, when the court allowed Texas's law to stand, this is the law that deputized the whole state to sue anyone who helps a woman get an abortion after six weeks, which is, itself, an openly unconstitutional standard, but at least up until whatever happens this spring. When the court said, "Sure, that's all good," you wrote an essay saying how it left you feeling your journalism was pointless. Since 2016, it had been like you were screaming into the void and you told the story about your own life. Would you mind sharing that story again here?
Susan: SB8, I think, was the first moment where we all felt like this was real, this is coming for us. I'm 32 years old. I grew up knowing that I have access to abortion. I have not personally had an abortion, but I have had times and I had a specific time in high school where I thought that I might need one. I think that that feeling, that experience, I think that's familiar to so many women.
Knowing that you have an option is something that is so important to your ability to process that, to think about it, to make a decision that's right for you to not be as afraid. I think that you always hear stories from women talking about the abortions that they've had and talking about how important they were. I think that we just also need to expand that circle to all the women who have just had that moment of wondering.
I think that that's a pretty common experience. To have those moments of wondering when you also have to think, "I don't know if I will be able to access this. I don't know if I'll be able to access this in time," just presents a whole new set of questions that I think is really fundamentally unfair and will do a lot of harm that is almost impossible to calculate to women into their lives.
My colleague, Christina Cauterucci, actually was just in Houston reporting a story about this. One of the things that she found is that women are now being forced into quicker decisions about their reproductive health care. That's causing its own anxiety and strife and just a whole host of issues that I think is just a totally unintended consequence of this bill that just seems extremely hard to grapple with.
Kai: Susan Matthews is news director for Slate. She's the host of the upcoming season of Slow Burn that will be all about the history of Roe v. Wade. When should we look for that, Susan?
Susan: It's launching on June 1st.
Kai: June 1st. Thank you for your work and thanks for this time.
Susan: Thank you so much.
Kai: Coming up, we'll dig further into history and into Justice Alito's draft opinion itself. What's it mean for the future of all sorts of individual rights in this country? We'll take your calls. Do you have a question about the draft opinion and its legal implications? I'll be joined by constitutional law scholar Michele Goodwin, and perhaps she can answer.
Also, I just want to take the temperature out there. You're in the streets right now literally, but how much is this likely ruling going to change or maybe reinforce your political engagement in the long term? What's that going to look like for you? We just heard Ann Hill's story, how she reacted. Are you thinking about your own reaction now? We'll take your calls and questions after a break.
Regina de Heer: We are here in front of the Supreme Court. It's a historic moment where Roe v. Wade may be overturned in the next days, hours. Can you tell me who you are? What brings you out here?
Erin Grant: Yes, sure. My name is Erin Grant. I use they/them pronouns. I'm the deputy director for Abortion Care Network. We're a membership organization representing independent providers who provide the majority of abortion care in this country.
Regina: A lot of the attack on the reproductive care of women has been on the providers themselves. I wonder, what is your response to this moment?
Erin: Well, right now, we are holding our breath. This is not the decision. This was a leaked opinion. We're hoping that this galvanizes and motivates the court because we know that 80% of this country supports Roe and they're acting against their own people. We really hope that this leak does bolster and help the Supreme Court to make this historic decision.
Regina: If you had a question or a comment to make for The United States of Anxiety, what would you say?
Erin: I would say independent abortion providers are absolutely the backbone of this country. When we look at clinics like Jackson Women's Health, which is the plaintiff in this case, they're the only clinic in their state, but they also have no access to midwifery. They also are losing comprehensive sexual education. What are we doing to protect our families and our futures when we are taking away rights to health care? We need to continue to trust people to make their own decisions about their bodies and their families.
Kai: Welcome back. This is The United States of Anxiety. I'm Kai Wright. We actually published a special episode about those abortion providers in our podcast feed this past week. I visited a clinic in Alabama a couple of years ago and learn how the doctors and nurses and staff have managed to keep their clinic open even in the face of constant assault. Check out their story if you missed that episode.
You can find it by following us wherever you get your podcasts or at wnyc.org/anxiety. I'm joined now by Michele Goodwin, a law professor at the University of California, Irvine. She's the author of Policing the Womb: Invisible Women and the Criminalization of Motherhood, among many other books, and host of the podcast On the Issues with Michele Goodwin at Ms. Magazine. Michele, thanks so much for joining us.
Professor Michele Goodwin: Thank you so much for inviting me to your show.
Kai: Listeners, we can take your calls for the rest of the hour if you have a question about the draft opinion or the legal fight over abortion rights. As I said before the break, I'm also curious if and how this ruling has fundamentally changed any of your political behavior. We have seen that there is a political imbalance on this issue. For a minority of anti-abortion voters, it's definitive.
That has not been true for the majority who support abortion rights. Does this change that equation for any of you? If so, how so? Professor Goodwin, while we are sorting through the incoming calls, let's talk a little bit more about history. I said at the start of the show that a clear majority of people in the US have consistently supported abortion rights since at least the 1990s, but this goes back a lot further than that actually.
Professor Goodwin: That's right.
Kai: Abortion was actually legal until close to the Civil War, right?
Professor Goodwin: That's right.
Kai: Can you give us a short recap of that and why the change and what the consequence was?
Professor Goodwin: Sure. Well, in short form, the pilgrims were performing abortions. The Indigenous people, whose lands we're on and recording on, performed abortions, helped people carry pregnancies to term all myriad of care. When you think about it, there were no guys and white lab coats and stethoscopes roaming around the plains of Africa, Asia, or Europe, a millennia or two ago, right?
If we pause, we're like, "Oh, okay, that's true. That wasn't happening. Who was taking care of women?" Well, women were taking care of women. That was true even during the period of antebellum slavery. We see the shift beginning to take place when, on the horizon, the Civil War is coming. Midwives, about half of them had been Black. They were Indigenous. They were white.
There was this real concern about once slavery is abolished, what does the United States look like? It's that same fear that captures many people in the political space today, which is this fear of the browning or Blackening of the United States. It was actually a perfect storm at the time. There was the rise of gynecology as a specialty, which was pretty much defined by men who felt pretty insecure about what they were doing.
We know this from their own autobiographies and writings where they felt very insecure because other men in medicine, and they were predominantly men who kept this to themselves, teased them. They said, "You're doing women's work." In fact, they're doing women's work that half of them are Black women doing. There was a concerted effort to shut out midwifery and they were quite successful.
We moved from having nearly 100% of women's reproductive health care in the 1800s being done by women to about 1% at the beginning of the 20th century. These guys were very successful in pushing political agendas and campaigns, essentially, to get women out of this space and to begin to monopolize obstetrics and gynecology for themselves. We could spend a whole episode just on that.
Kai: To be clear, you're talking about the 1840s and 1850s here, right?
Professor Goodwin: Absolutely, right. Up until this time, 1600, 1700s, and so forth, abortions are being performed, right? It's this period that is leading up to the breaking point in the United States and they're able to use us as a leverage. They're able to use race as a leverage. For example, they begin writing about the urgency of white women, their words, not mine, using their loins and spreading their loins north, east, south, and west.
They engage in anti-immigration campaigns. At that time in the United States, much of what was building out railroads, et cetera, was being done by Asian laborers who were coming and also staying, but they wanted to keep Asian women out of the United States, hence the Page Act. They're quite explicit, these guys. They actually teamed up with the American Medical Association to be able to do this and to lead this effort through.
The AMA serves as a conduit for all of this. It's a fascinating history, but it is a history that is about monopolizing this space for men to be able to do reproductive health care. It's about racism quite explicitly and the concern about the diverse populations reproducing in the United States. This is all being done right up to the lead of the Civil War.
Kai: Well, let's go to the phones because we've got a lot of callers right away. Let's go to Wendy in Springfield, New Jersey. Wendy, welcome to the show.
Wendy: Hi, thank you. Now, there are several things that we need to look at long-term because these other people have been working for 50 years. We have to do short-term and long-term. In terms of the long-term, there's the national popular vote, reforming the Supreme Court, getting rid of the filibuster, passing the ERA, and just digging into the national popular vote.
The people who are trying to drag us back to the 20th century on the Supreme Court were all put there by presidents who did not win the popular vote. Why? Because we have the electoral college, right? We have to do this and I haven't changed anything that I'm going to do. No, I continue working with my fellow activists and getting people educated. Yes, rallies are fine, but we also need to do the work, all these different things we need to do. All these things are necessary.
Kai: Thank you, Wendy. Wendy, right away, focusing on the minority rule piece of it. I think we have Hope. Hope, you're in New York. Hope, welcome to the show.
Professor Goodwin: Hi, Hope.
Kai: Hi, Hope. Did you have a question?
Hope: Yes, I did. My question is a stupid question, but I just have a feeling other people are at the same place. When I was growing up, I always had this mythic feeling and thought that the Supreme Court meant that when a ruling was made, it was golden and it was untouchable. I just wonder how many Americans and women, in particular, are in this stunned place. I've watched all The Handmaid's Tale, so I realized that it's not-- but I just am shocked. I just wondered, why is it that the Supreme Court can take back something that they already ruled in favor of?
Kai: Thank you for that, Hope. Michele, if I can add a little bit to that question because I think Hope's right. This is where a lot of people are like, "Wait a minute. How was this not resolved?" In the first part of the show, we talked about this idea in Justice Alito's draft opinion that only rights spelled out in the Constitution can be protected under the 14th Amendment. That's the argument he seems to want to make. I guess my version of Hope's question is just that argument, how big of a break with precedent would that argument be?
Professor Goodwin: Well, it's just not accurate. If we were to address Hope's question and then also what you're suggesting, which is that, first of all, there's a Ninth Amendment, which the drafters of the Constitution were very clear about understanding that they had not articulated all rights that could govern this nation into the future, hence, the Ninth Amendment, which provides for all unenumerated rights.
The second thing is that to the extent that Justice Alito in the draft opinion speaks to originalism and textualism as a kind of theory, which emerged more recently than originally, what he leaves out is that the 13th Amendment itself abolishes all forms of states being able to enslave people and coerce them into service and involuntary servitude. The second thing is that the 14th Amendment itself, it establishes who citizens are and it explicitly says "born people." It does not say unborn people, fetuses, or embryos.
The Constitution only recognizes born people. That is also a distinction that's really important. Another important part of the 14th Amendment is that it establishes liberty and freedom. Now, keep in mind that with the 14th Amendment, the 13th and the 14th, this was explicitly meant to be thinking about what happened to Black people in slavery. If one is to consider that Black women were also enslaved, talking about freedom and liberty in those contexts also means freedom over their reproductive capacities too.
A very strong argument can be made for that because the foundations of slavery itself were about the kidnap and then the exploitation sexual and labor of Black women. Now, very quickly to the question about, "Well, can the Supreme Court reverse itself?" Well, it can. There are times in which we might want the Supreme Court to be able to do that. After all, this is a Supreme Court that said that Black people could never be citizens and that Black people were not even people but were destined to be property, never to be citizens, and never to rise above slavery.
Being able to reverse is great, but I think your question, Hope, is a really good one because the Supreme Court does not go back the other way. The Supreme Court has always expanded on rights. It's gotten to that long arc of freedom towards how it has made decisions. It's never taken rights away and that is what makes it so extraordinary, what is in the draft leaked opinion that is authored by Justice Alito.
Kai: Let's say that draft opinion is the final opinion and this idea that despite what you're saying about, well, the Ninth Amendment says something different. If the court says, "Okay, no, no unenumerated rights are respected," I've heard a wide range of reactions to what that would mean in terms of rights that are on the table. What is your feeling about that?
Professor Goodwin: Well, Kai, I think what you are really getting at is, "Okay, Professor Goodwin, you say what the law says," but this is a court that may be willing to do something very different than what it's always done in the past. I think that's absolutely right and, in fact, we've seen that. I think that this is actually a time for us to hold two things constant. One is hope. I hope we get to that.
Kai: We will.
Professor Goodwin: We need to carve out some time for that. Importantly, what we've seen with this court is that it's been willing to dismantle other rights as a lead-up here. If you pay attention to Shelby County v. Holder, something that has been important and that Republican senators had supported up until the last decade, voting rights, this is a Supreme Court that has dismantled part of the Voting Rights Act. Roe v. Wade is still the law of the land.
When Texas last year enacted SB8, which bans abortions after six weeks of pregnancy with no exceptions for rape and incest and that provides for this bounty hunter provision, it should have been something that the Supreme Court shut down right away because it is something that stands in contradiction to existing law of the land put in place by the Supreme Court. The Supreme Court looked the other way. To your point, Kai, what does any of this mean when there's a Supreme Court that may perhaps be so ideologically driven and divided in some ways that everything that we've known up until now is up for grabs? I think that's the fear that many people have.
Kai: Shout out to one of our callers, Rob from Detroit, who, just before you mentioned the Ninth Amendment, Professor Goodwin, was also saying, "Hey, what about the Ninth Amendment in this argument over unenumerated rights?" Let's go to Joanne here in New York. Joanne, welcome to the show.
Joanne: Thank you. I'm wondering if the Equal Rights Amendment had, in fact, been fully ratified, which, in fact, it was by a sufficient number of states, will Justice Alito still have this argument?
Professor Goodwin: He may very well and I think that that's the underlying concern, which is that it's a Supreme Court that may be cherry-picking within the Constitution and history as well in terms of how it understands and analyzes history. I'll give you an example. Justice Alito specifically leaves out certain portions of the 14th Amendment as he does 14th Amendment analysis. Justice Alito and the draft opinion speaks only to a particular period of time in which abortion begins to be criminalized but doesn't speak to prior times, the centuries before when abortion was not criminalized.
He calls that period of time irrelevant. That's the word he uses in his draft opinion. Justice Alito cites treatises from Europe in the 15th and 1600s, but these are treatises that provide for and articulate coverture, which sanctioned women as property of their husbands, which led to US states governing that men could rape their wives. This is located within how Hale spoke of women. Even if we did have certain protections articulated in the Constitution, it's not guaranteed based on how we read his draft opinion that he necessarily would be referencing those. That aside, we need the ERA to be placed within the Constitution. The votes are there and the archivist needs to get it done.
Kai: Just to clarify. Legally, you don't think that would have been a counter to this ruling like if the ERA--
Professor Goodwin: Well, it would be, and let's be clear that this isn't a ruling yet, but I just believe that there is a level of cherry-picking that we see with a politicized wing of the court. I think that ideological differences are very important to have on a court. They help to sharpen the tools of all sides and there's deliberation, but the American public has lost significant confidence in the court. According to a number of polling data, they believe that the court does not reflect their values anymore and they've lost a sense of the court's ethics.
In fact, we know that there is not a code of ethics per se that the court follows unlike what's required of lower courts and attorneys. The concern here is that if you have a super majority of the court that already is bent on reading the Constitution in its own way and cherry-picking throughout the Constitution, then it doesn't really matter what the Constitution says or what federal law says if what they are is ideologically driven to do a particular thing. I think that's what makes this leaked draft opinion so dangerous, but what's more dangerous than just the leak is what it pretends for our democracy.
Kai: Let's hear from Jackie in Manhattan. Jackie, welcome to the show.
Jackie: Thank you. My comment is a sad one. In 2016 when Trump was appointed then by Putin, I was aware at the time that my son and his wife were going to have their first baby. My first thought was I hope to God it's not a girl because the misogyny is exponential now. It's turned pathological. I felt that immediately. I'm the middle of seven children. I had six brothers.
Let me tell you. By the time I was three, I understood how the world worked and it was not in my favor and I had to watch. When I was a young teenager, I worked every day after school. Some of my brothers got a job in the same grocery store chain. They're younger than me and were paid more than I was. I complained about it to the manager. I asked the manager that my lazy brothers are making more than I am and I'm doing three jobs here.
He said, "Well, you have the great misfortune of being born female and it's legal." I never forgot that and we're still dealing with unequal pay, unequal opportunity, this deepening pathological misogyny. I thank God that I have a grandson because I don't want a granddaughter going through this for the next 20 years, 25, 30 years. I don't want her mistreated, but that's how pathetic this is and I'm very angry.
Kai: Jackie, thank you for that testimony. That is very difficult to hear. Michele, we are going to get to some conversation about hope here shortly. We're going to take a break. I'm talking with Michele Goodwin, constitutional law scholar from the University of California, Irvine, and author of Policing the Womb: Invisible Women and the Criminalization of Motherhood, among other books. We're taking your calls. If you've got a question about the legal battle over abortion rights, call us up. We'll take more of your calls after a break.
Rahima Nasa: Hey, everyone. This is Rahima. I'm a new producer on the team. I'm going to be reporting out some special segments for the show, so keep an ear out for that. First, I want to ask you for help on something. For next week's show, we're going to be celebrating the legacy of For Colored Girls, which is a book, a film, and a Broadway musical. Kai's going to talk with Ms. Trazana Beverley, the lady in red in the original Broadway production, and some other special guests who have helped that very first production come to life.
We really want to celebrate the impact For Colored Girls has had on generations of Black women and we want to hear from you. If you could ask the cast anything what would it be or how has For Colored Girls impacted you, send us a voicemail. Record yourself on your phone and then email that voice message to email@example.com or talk to us on Twitter by using the #USofAnxiety. Thanks.
Kai: Welcome back. This is The United States of Anxiety. I'm Kai Wright and I'm still joined by law professor Michele Goodwin, author of Policing the Womb: Invisible Women and the Criminalization of Motherhood, and host of Ms. magazine's podcast-- Oh goodness, Michele, I've lost the name of the podcast.
Professor Goodwin: It's On the Issues with Michele Goodwin at Ms. Magazine. I know you did that on purpose just to cue me up a little bit, so thank you, Kai. [chuckles]
Kai: That's perfect because, now, they heard it coming from you.
Professor Goodwin: There you go.
Kai: There's nothing like a personal invitation.
Professor Goodwin: That's right.
Kai: Michele, I said before the break that we were going to start talking a little bit about what we can do, what the future looks like. Let's start with a caller who I think has a question along those lines. Amy in Glen Ridge, New Jersey. Amy, welcome to the show.
Amy: Thank you, Kai. Let me tell you, I'm a big fan of your show.
Kai: Oh, thank you so much, Amy. Thanks for calling.
Amy: Thank you for tackling this really important issue. Professor Goodwin, I'm embarrassed to ask this question a bit because I am a lawyer, but my question is, what can we do on a state government level in liberal states or largely liberal states like New Jersey and New York? What kind of things can we be advocating for from our state governments to protect reproductive rights, not only for women in New York and New Jersey but for women who may travel to our state to obtain decent reproductive care? What should we be advocating for at the state level?
Professor Goodwin: This is a great question. One, advocating for constitutional protection and legislative protections such that they are on the books to protect all manner of rights associated with reproduction so that we don't articulate reproductive rights as only being about abortion, but it includes sex education. It includes access to contraception. It includes the ability to be able to have hysterectomies if one wants to and without the state coercing that it also includes the right to abortion.
It includes as well the rights to certain reproductive healthcare screenings, ovarian cancer, cervical cancer, breast cancer, that whole panoply of rights. It should also be LGBTQ affirming as well. Instantiating that kind of rights of equality, privacy, and autonomy in state constitutions is great. Otherwise, getting that passed through legislation is terrific. One other piece of that, which is that Roe was not a North Star. A very important decision. That was 7-2. Five of those justices were Republican-appointed.
Justice Blackmun, who wrote that opinion, was put on the court by Nixon. It's always just important to level-set there. I would say, after Roe with the Hyde Amendment that chipped away at those protections for poor women by not providing or extending federal and state resources, except in very limited instances for poor women to be able to terminate pregnancies, then I think making sure that those protections are also within state legislation and constitutional protections happens to be very important.
It is not a naïve question. It is a great question. Thank you so much for asking it. To the final point about protecting individuals who are coming into the state, I've been calling this era "The New Jane Crow." Pauli Murray, who should be known and I shout her out every opportunity I get and I've been writing about her for more than the last 20 years, but she wrote about Jane Crow in the late 1930s and '40s being a Black woman and a Black queer person.
Thurgood Marshall credited her with writing what he called, "The Bible of the civil rights movement." She was key to civil rights and also sex equality work. She wrote about the Jane Crow, her own experiences in that of women of color and women generally in the first part of the last century, but here we are 80 years later, needing to think about this as the new Jane Crow. That's really what it is and we have to protect people trying to make their way to freedom.
Kai: What about the federal solutions? There's been reporting that the Biden administration is pessimistic about anything that it could do that would stand up in court. You're credited with creating the field of health law, so what do you think the federal government could do to support abortion access if Roe is, in fact, struck down?
Professor Goodwin: Sure, at least significantly contributing to this field. There's a Women's Health Protection Act that is making its way through Congress. It's been put up before and there's going to be another effort to get it through Congress. It's expected that it may not get the sufficient number of votes in the Senate. That said, people will know exactly where their senators stand and can place pressure on those individuals, or at least try to vote them out of office.
There are other ways in which the federal government has historically protected some of the areas that we're talking about, including Title X. Interestingly enough, the person who helped to shepherd Title X through Congress was, actually, George H.W. Bush. That's that first President Bush. His father, Prescott Bush, was actually the treasurer of Planned Parenthood, and so making sure that there are robust Title X dollars that are going to all of the states in order to help provide for all of the kinds of screenings that people will need and contraceptive access.
All of that is really important. It's worth noting that during the Trump administration, there were very significant efforts to gut Title X. Title X provides that crucial reproductive health care that people need at the ground level, and so Congress can act in that domain as well. Then there's the power of executive orders. Even though President Biden may believe that they won't be able to survive before the Supreme Court if challenged, the President can use the authority of his office in order to shape what could be protections for people who need reproductive healthcare services.
Kai: Let's go to Charlie in Jersey City. Charlie, welcome to the show.
Charlie: Thank you. I have a question about a subject that I haven't heard anyone speak of since this entire issue became an issue and that's, what are the rights and responsibilities of the fathers of all of these babies that are now being brought the term that would have been aborted?
Kai: Help me understand what you mean, Charlie. Spell that out a little more.
Charlie: Okay, women don't have these babies by themselves. Let's take a hypothetical situation. A young couple screwed up their birth control. They accidentally have a baby. They both agree they would like to have an abortion, but they can't, okay? The baby comes to term. The baby is born. Now, whose baby is it?
Kai: Okay. Well, I'm not sure I fully followed, Charlie, unless you do, Professor Goodwin. Let me ask that when I think about the state-level laws prosecuting people and making abortion access illegal, that makes me think about the family members of people who are seeking abortions as well, and so maybe that's part of what Charlie's getting at.
Professor Goodwin: Well, what's being proposed in some states is that a woman or a person who has a capacity to become pregnant, who has an abortion can be sued by members of her boyfriend's families or the man who was involved in the pregnancy, but I think that the deeper question that he's asking is, what's the role and responsibility of men in these situations? In Planned Parenthood v. Casey, Justice Sandra Day O'Connor was very clear in articulating the kinds of domestic violence and issues that involve intimate partner violence that can come with pregnancy.
For these reasons, it's really important to keep decisions with regard to pregnancy terminations and abortions away from men being able to govern and coerce those kinds of decisions. If you're talking about child support issues while states, for a very long time, have prosecuted men in order to make sure that they pay child support and otherwise, I think that the rest of the question is a little bit lost on me too.
Kai: Let's hear from Erica in Jersey City. Erica, welcome to the show.
Erica: Hi, thank you so much for having me. I am having my first baby.
Erica: I've always wanted to have a girl my entire life. I've always wanted to have a girl because I knew I was a strong woman. I was going to raise a strong woman. I found out I was having a daughter. The moment I found out I was having a daughter, I realized how hard she's going to have to fight and I am still so excited to have her. I'm so excited that she's coming to me now, but how much now still she has to fight against misogyny of this country. That is so abhorrent to me.
I was thinking about this because I am having this child in August. I was thinking about how many things are called "abortion" in the medical terminology, right? My main thing was just to call men to arms because these misogynists aren't going to listen to women saying, "Hey, where are my rights?" Not only women have to say, "Where are my rights?" The men that believe that women should have rights have to speak up as well.
Kai: Erica, just this quickly, can I ask-- Professor Goodwin, what would you say to Erica?
Professor Goodwin: Yes, I want to respond to that because, Erica, I'm a mom too and I absolutely understand where you're coming from. Here, I can't help but think about the role that Black women played in the lives of their children during a period of Jim Crow and also during slavery that you understand a nation that can be better, you understand a nation that's not living up to its true values.
You raise with that kind of intention in the heart. For a very long time, there have been women in this country who've been fighting and working for this country to live up to its values and its ideals that have been on paper, in text, but have not always been realized. I think about the power and beauty of Ruby Bridges' mother, who, for the benefit of the United States, gave her daughter to integrate a school in Louisiana surrounded by guards and marshals to do that.
That is having been a tremendous gift to our country but something that for any mother would be absolutely hard to do. I think you're absolutely right that in these times, this is something that all Americans should be concerned about, our democracy, our rule of law. When it comes to reproductive healthcare matters that affect women's lives, men should care about those too because it really is, at the end of the day, all about our shared democracy.
Kai: Erica, thank you so much for calling and I hope what Professor Goodwin had to say is helpful. Congratulations on your new child. Professor Goodwin, we've got maybe a minute here left. I want to give you time to leave us on hope that you've mentioned a couple of times. We need to be thinking about that, so how would you leave us on hope?
Professor Goodwin: Well, I would leave us on hope in the following ways. There are times that I think about these communities that are located in Canada that were shaped by Black people who came from the United States. These were Black people who had no train ticket, no bus ticket, but these are people who walked out of slavery, who dared to defy the American system of enslavement and with no GPS, no comfortable boots and UGGs, or any things like that said, "We will be free. We deny you that suffocating us and tethering us to systems of involuntary servitude, and so we will walk to freedom."
When you think about that, that's really quite tremendous. They did make it to Canada and there were Black people who made it to all form of free states. I think there's something to be said about that indefatigability, that kind of courage, that kind of steadfastness. I think that that is what we need in a democracy. When our democracy is being challenged, when the rule of law is being challenged, that kind of steadfastness is unfair for anybody to have to do that, but I hope that offers hope.
Kai: Michele Goodwin is a law professor at the University of California, Irvine, author of Policing the Womb: Invisible Women and the Criminalization of Motherhood, and host and executive producer of On the Issues with Michele Goodwin at Ms. Magazine. Michele, thanks so much.
Professor Goodwin: Thank you for having me, Kai.
Kai: The United States of Anxiety is a production of WNYC Studios. Our theme music was written by Hannis Brown, performed by the Outer Borough Brass Band. Sound design by Jared Paul. Matthew Marando was at the boards for the live show. Liora Noam-Kravitz mixed the podcast version. Our team also includes Emily Botein, Regina de Heer, Karen Frillmann, Kousha Navidar, and Rahima Nasa, and I am Kai Wright. Keep in touch with me on Twitter @kai_wright and, of course, find us live next Sunday, 6:00 PM Eastern. Stream it at wnyc.org or tell your smart speaker to play WNYC. Thanks for listening, and take care of yourselves.
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