[music]

Brian Lehrer: Brian Lehrer on WNYC. Good morning again, everyone. Now, the connection between voting rights, the death penalty and abortion rights after Roe v. Wade. Sherrilyn Ifill, Director Emeritus of the NAACP Legal Defense Fund wrote a New York review of books article in May after the Alito draft came out noting the irony of putting abortion rights in the hands of voters in the 50 states just as republicans are upping their fight to make it harder for Black and Latino women to vote.

On August 2nd, Kansas will become the first state to have an abortion rights or no abortion rights referendum on the ballot post Roe. It's a big test case. Other states are expected to follow. The Supreme Court in its next term will rule on a case that could make it easier for republican-led states to gerrymander electoral districts to reduce the voting power of Black and Latino Americans even more.

The new President and Director Counsel of the Legal Defense Fund, Janai Nelson, has an article on Slate that ties the reversal of Roe by the Supreme Court to its reinstatement of the death penalty. Both of them rulings with very disparate impacts across racial lines. One that centers the sanctity of innocent life. The other she argues that doesn't. The Roe decision even as consequential as it is on its own also exists in a web of other legal decisions that will further affect people's rights. With us now is Janai Nelson, President and Director Council of the Legal Defense Fund, originally known as the NAACP Legal Defense Fund. Ms. Nelson, thanks for coming on for this. Welcome back to WNYC.

Ms. Nelson: Thank you, Brian.

Brian Lehrer: We'll get into these legal and political connections. Can you just remind everyone first what you expect the disproportionate impact of the Dobbs decision reversing Roe to be on poor women, which unfortunately in this country means women of color?

Ms. Nelson: Yes, the Dobbs decision is absolutely calamitous. There's no way to shrink from that reality. We know that abortion legalization meant that Black women, in particular, had greater opportunity in terms of economics and education. Following Roe, there was a 9.6% increase in Black women's college graduation rate. That resulted in a 6.9% increase in Black women's labor market participation.

There's no way to overstate the ability to control your future, to control your body, to determine when and how to start a family for all women, but especially women who live at the margins of our society economically and educationally. The right to choose when to have a family is critical to their success and their ascension.

Brian Lehrer: Who can get to New York and New Jersey if they're setting themselves up at safe zones and things like that. Your article on Slate compares the Dobbs decision last month on abortion rights to a Supreme Court ruling way back in 1972, one year before Roe v. Wade imposing a moratorium on the death penalty in the United States. Why bring that into the conversation today?

Ms. Nelson: Well, I think it's important to point out the hypocrisy of the Supreme Court. A court that suggests that the sanctity of life is foremost and so important that it is willing to reverse over four decades, nearly five decades of precedent. It's incredibly hypocritical when you think about the Supreme Court's death penalty capital punishment jurisprudence. The Supreme Court has upheld the death penalty, has imposed it in many circumstances where there has been evidence of actual innocence or evidence of a failure of attorneys to provide adequate legal counsel.

We also know that the death penalty reflects significant racial disparities. That is what we raised as the Legal Defense Fund back in 1972 when we litigated Furman v. Georgia, which is the only case that has ever resulted in a nationwide moratorium on capital punishment. That moratorium lasted five years. It spared over 600 lives. It interrogated whether the arbitrary nature of the death penalty was a violation of civil rights, was a violation of constitutional rights. The court paused the imposition of the death penalty to examine it.

Interestingly, and this is the correlation to Dobbs. It relegated the resolution of that to the states at the end of the day. It said, "States should re-examine their capital punishment laws and make sure that they were not imposed arbitrarily in a racially discriminatory manner." You fast forward 50 years, and we all know that those disparities persist. The Legal Defense Fund puts out a report quarterly called Death Row USA. We show in very stark terms that the racial disparities in capital punishment are as stark today as they have been in the past. It is a fundamental flaw in the way our criminal legal system operates.

Brian Lehrer: Do you think there might be a legal argument to go back to the Supreme Court with or for that matter to state courts with based on that 1976 death penalty reinstatement because as you just described, even though you don't think it's being administered this way in many states, they're supposed to meet a standard of non-discrimination in the way the death penalty is determined in individual cases? Could there be a case that goes to court that says, "These new state abortion laws, whatever they are, are having a disparate impact by race or by income."?

Ms. Nelson: In theory, there could be. We know that this particular composition of the Supreme Court is quite hostile to disparate impact claims. We've seen that in a variety of areas including voting rights where we know that voter ID laws, laws that limit mail and voting, laws that limit drop off voting, laws that limit early voting. All of those limitations impact voter turnout in a racially disparate way. The Supreme Court has been relatively hostile to those sorts of claims.

I don't have a great deal of hope that pointing out that reproductive rights are particularly crucial for women of color and women who are low income or disabled or have other impediments to their thriving and success in the society. I don't have a great deal of hope, but I do believe that it is important nonetheless to present the court with that information and to force the court to reckon with that reality.

Brian Lehrer: Yes. People who believe in the death penalty, by the way, since you brought this up to counter-pose it with the Dobbs decision reversing Roe. People who believe in the death penalty and also want to ban abortion make the case that the difference is that capital punishment is a form of justice for people who've committed the most egregious crime, murdering another human being whereas all fetal life is innocent and helpless. "These are not equivalent things," The argument goes. What's your response to that argument if you're calling hypocrisy on the court for this?

Ms. Nelson: My response to that is that if all life is to be protected, and if all life is worthy of the court's intervention, then we have no business in determining who is subject to life or death at the hands of the state. We know that there are flaws in the way in which the death penalty is imposed. It is largely for punishment. It does not heal, it does not serve any retributive justice in a way that makes our society safer.

It does not deter criminal acts. There is virtually no reason to continue this practice, this very barbaric and sadistic practice that is becoming increasingly less popular and used throughout the world than these feelings of just pure punishment and sinister feelings of trying to exact some form of harm on people who you believe have transgressed society.

Brian Lehrer: You link to an article that documents nearly 200 cases of people on death row who later got exonerated, in other words, true respect for innocent life would not allow for a death penalty because inevitably, some meaningful number of innocent people will be killed by the state.

Ms. Nelson: That's exactly right. That's exactly right. There's a lot of controversy concerning when we can actually assume that life has begun on the other end of this, where I think it's very clear, there's no question that people who are living and breathing in our society, who are put to death at the hands of the state deserve protection from arbitrary decisions, deserve protection from processes that we know inflict harm, like the injection using lethal substances that can often go wrong or other processes that inflict cruel and unusual punishment. It is simply a barbaric practice that has no place in a modern democracy.

Brian Lehrer: When we continue in a minute with Janai Nelson from the Legal Defense Fund, we're going to turn to her colleague and predecessor Sherrilyn Ifill's article in the New York review on the relationship between abortion rights and voting rights. There will be at least two tracks for this debate in the state's post Roe. It seems abortion laws made by elected legislatures, which I think have been getting most of the attention, and those made by referendum like one coming up in Kansas in just a few weeks.

We can take a few phone calls for her on these connections that we're making between abortion rights, the death penalty and voting rights. 212-433-WNYC, 212-433-9692 or tweet at Brian Lehrer, all of this deriving from articles that Janai wrote on slate and her predecessor and colleagueSherrilyn Ifill wrote in the New York review of books. On Sherrilyn's article, Janai on the relationship between abortion rights and voting rights. Do you at the Legal Defense Fund see the abortion rights question being turned over to the states while the court abets the disenfranchisement of Black and Latina women as Sherril puts it in her piece?

Ms. Nelson: Absolutely. We have so many examples of the failure of states to honor civil rights, to honor constitutional rights. The idea that states will somehow pick up the morally bankrupt charge of the Supreme Court to delegate this important issue, this important nationwide concern of reproductive rights to the states is something that we are all too familiar with and we know is just an abdication of duty. We've seen this in the death penalty context, where, as I said, the court suggested that states would somehow fix the arbitrary and racially discriminatory nature of the imposition of capital punishment and has failed to do so for decades.

We also know that the court has continued to limit voting rights, to allow for racially discriminatory and racially disparate impacts to be sustained in our electoral process, which means that Black women, Latinx women, Asian women, low income women, women with disabilities, LGBQIA persons will have a very limited voice in determining the future of their reproductive health. If the court is honest in its demand that states take up this issue, it would make sure that every person who is eligible to vote has as few obstacles as possible to register their decision concerning reproductive rights and that would mean removing all of the obstacles to voting that currently persist.

Brian Lehrer: As I mentioned before the break, there will be at least two tracks for this debate in the states. It seems abortion laws made by elected legislatures. A lot of these so-called trigger laws that automatically went into effect once there was no more Roe V. Wade, and those made by referendum like the one in Kansas coming to voters on August 2nd. The context there, as I understand it is that a state court in Kansas had ruled against abortion restrictions.

In other words, the state court had upheld the right to an abortion for many women, at least, based on the state's constitution as the court saw it. Now that's being challenged in a referendum where voters would just change the law or change the state constitution. Abortion rights will rise or fall based on the results of a referendum in Kansas on August 2nd. Do you find one track or the other more threatening to abortion rights or more likely to be discriminatory?

Ms. Nelson: Well, again, it depends very much upon the access that everyone, not just women, but anyone affected by this limitation on reproductive rights has to the ballot, but we really should not be determining such a critical and essential right to privacy, a right to bodily autonomy on a state by state basis. This is something that the Supreme Court should have protected on a national level as the highest court in the land to determine what constitutional rights are afforded to every person in this country.

Brian Lehrer: Yes. But here we are.

Ms. Nelson: Exactly, here we are.

Brian Lehrer: The 2013 ruling by the Supreme Court in the landmark Shelby county case, undoing part of the voting rights act, the part that made states with historically racist voting laws get pre-clearance from the US justice department before making any more voting law changes. They no longer need that federal oversight because of the Shelby county ruling. Do you agree that that has resulted in actual disenfranchisement of Black voters?

I ask partly because there's been some talk in the press to us to look at turnout in recent presidential elections and other elections, and look how Black voters, especially Black women voters are having higher turnout than many other groups. Some people say, look, disenfranchisement is not happening in practice. I wonder your view of that, personally or institutionally at the Legal Defense Fund.

Ms. Nelson: Yes. I'm so glad you asked that question. We're nearly a decade out from that horrific decision where the Supreme Court gutted the protection for voting changes in jurisdictions that have a proven history of discrimination and we're continuing to fight those battles today, that unleashed a burrage of laws across the country that limit voting and the Brennan center has done a phenomenal job of tracking the voter laws that prevent people from voting. There have been over 400 introduced in the past couple of years, or since actually I think this year alone.

What we see is a particularly disparate impact on people of color and your question about whether these laws somehow impact particular communities in a way that they're able to overcome through the investments of civil rights organizations, like the Legal Defense Fund, through the wherewithal and the power of people to overcome the obstacles that are presented should not negate the fact that those obstacles exist and that there is a different burden on voters of color when they try to exercise their constitutional right to vote.

It's very unfortunate that we have to invest so much in our democratic process to enable more equal access for people to vote. That Black voters and voters who again exist at the margins of our society, have to put in double the effort or triple the effort in order to access the ballot and exercise their constitutional right. That is in no way, an indicator that this discrimination doesn't exist and isn't a barrier to participation still.

Brian Lehrer: Carly in Brooklyn you're on WNYC with Janai Nelson from the Legal Defense Fund. Hi, Carly?

Carly: Things I've noticed with these.

Brian Lehrer: Sorry. Now we have you. We had a little problem there. Hi.

Carly: Hi. Thank you so much for your work. One of the things I've noticed with these laws, as well as the trans laws that are coming out is that they're specifically making them crimes that are felonies and of course, in many states, you will also lose your right to vote when you're accused and convicted of a felony. I'm wondering if anybody is seeing that as a strategy and also part of the counter strategy that's needed. In addition as these things are criminalized and people are presumably sentenced, jail is also notoriously difficult place to vote from even when you have the right and I'm wondering if anybody's working on that.

Brian Lehrer: That's such an interesting connection to make, one that I honestly, Janai, hadn't heard anybody raise before. It's not even in Sherrilyn's article where if they're criminalizing abortion as a felony, you're going to have a lot of women now, disproportionately, as you described Black and Latino women who are going to wind up felons, and what happens when you're a felon in most states, you lose your right to vote. There's another connection between abortion rights and voting rights.

Ms. Nelson: That's absolutely right. Carly, I'm so glad that you raised that issue. That's one of the first issues that I worked on at the Legal Defense Fund over 20 years ago. That was to restore the right to vote to persons convicted of felonies who should never have lost their right to vote in the first place. This, again, points out how disingenuous it is for the court to suggest and for Justice Alito in particular, to suggest that it would return the issue of abortion to legislative bodies and that women have the opportunity to seek a legislative process results that would help them determine whether their reproductive health is in their hands or not.

Now, women will be increasingly criminalized. Black and brown women will be criminalized at a disproportionate rate. That in most states will result in the loss of the right to vote. They will not have a voice in their future. They will not have a voice in whether they have equal access to economic opportunities, to educational opportunities, to basic freedoms, and privacy. The idea that voting is a solution to this is so fraught. If the court were actually serious about this and not outcome-driven and being an activist court, it would enable processes for women and other people affected by this decision to exercise their right at the ballot.

Again, I will underscore that I do not think that this is a right that should be subject to a state by state determination. This is something that the Supreme Court, as the highest court in the land that determines the law of our country should take up and should reverse this Dobbs decision to restore the Roe v. Wade right to reproductive health.

Brian Lehrer: Do you know these various state laws enough? All these over a dozen states with trigger laws, maybe half the states that are soon going to have severe limitations on abortion, if they didn't, when Roe was in effect? How many of them actually make it a felony for the woman or pregnant person who has an abortion? Is it a felony? Is it a felony more frequently for the providers under these laws? Is it equally a felony for the pregnant person and the provider? Do you know?

Ms. Nelson: It varies. There are approximately 26 states that have some form of trigger law in effect that will over the next several months go into effect and prohibit women from seeking abortions. I do not know precisely how that correlates with felon disenfranchisement laws. If we consider how pervasive those laws are, it would not surprise me that almost all of those states would likely disenfranchise women who are convicted of a crime.

Many of these laws are extremely expansive and engulfed not just the women who are, or people who are seeking reproductive healthcare, but anyone who assists them or enables them. There are concerns about whether they are able to cross state lines and whether that would trigger criminal penalty. There are many questions that still abound about the criminal exposure that anyone seeking or assisting a person seeking an abortion might face.

Brian Lehrer: Alexandra in South Salem, New York wants to pursue this line even more. Alexandra, you're on WNYC. Hello.

Alexandra: Hello, thanks for taking my call. My question is if a woman or trans person is convicted as a felon and goes to prison, will more women be giving birth in prison? Will there be prenatal care in prison? How will those prisoners and babies be treated? What does that future look like?

Ms. Nelson: That's a great question. It looks like a very dystopic future. Again, underscores to me that the Supreme Court is not particularly concerned about the care of individuals once they are out of the womb. Care is most importantly about controlling the birthing choices of women and other people who give birth more than anything else. We know that often women in prison are separated from their children, are not given the resources that they need to be parents and to support their children.

That in and of itself, creates significant long-term problems for those young people who don't have the same support from their parents, who don't receive adequate parental connection. All of these are problems that this court has created without a solution, without ensuring that the women who, and people who wind up giving birth against their will have adequate resources to support their parenting going forward.

Brian Lehrer: One more call. Shaw in Crown Heights. You're on WNYC with Janai Nelson, Director of the Legal Defense Fund. Hi Shaw.

Shaw: Hello, Brian. Good morning. I have a question. I do not understand for the life of me why those of us who want to protect abortion rights play this puritanical game and talk of defending the right to choose with these terms like reproductive health and bodily autonomy and all this stuff. I'm 48 years old, I've been hearing the same thing, and I do not understand why we simply don't address the elephant in the room that sexual pleasure and sexual autonomy is an inalienable right.

It is part of our humanity. There are plenty of long-term committed couples, whether they are married or not, who have sex for pleasure, for intimacy and whatnot, and do not want families. I do not understand why we play by their rules and we don't have a new paradigm for arguing to defend the woman's right to have an abortion.

Brian Lehrer: Shaw, thank you. I guess he wants it framed more in terms of a right to sexual pleasure without force reproduction as one of the consequences, in some cases. Anything there for you, Janai?

Ms. Nelson: Shaw, I really appreciate that comment and I wish that more men and I'm presuming that's a position that you're representing would speak out about that, would speak out about the desire for autonomy, for the ability to engage in sexual freedom and not have the consequences visited so disproportionately on women and people who give birth and wind up, unfortunately, because of the many rules and laws and more ways in our society bearing the brunt of the consequences of the Supreme Court's decision.

I think you raise a very fair point and many other men and other person should be speaking and saying the same things. This is a right to privacy. This is a right to freedom. This is a right to pleasure. It is a right to determine your reproductive health. I will stand by that. All of those factors should be voiced by anyone who is impacted by the Dobb's decision. That is everyone. That is literally everyone in this country.

Employers, educators, anyone invested in the future of people will have their rights and their ability to thrive limited by this Dobb's decision, by the limited right of women and other people who give birth to determine their freedom and their reproductive health. As you say, Shaw, their right to sexual pleasure

Brian Lehrer: On the connections between abortion rights, voting rights and the death penalty. We thank Janai Nelson, president and director counsel of the Legal Defense Fund. Thank you so much.

Ms. Nelson: Thank you.

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.