Last week on Amicus, Dahlia Lithwick spoke with professor of law Melissa Murray of NYU about the swath of draconian abortion laws that has been passed by state legislatures in recent weeks. What follows is a portion of that conversation, which has been edited and condensed for clarity.
Dahlia Lithwick: Can you help parse how we got here, specifically on rape and incest exceptions (which are absent from a number of these new laws)?
Melissa Murray: The original logic behind exceptions for rape and incest is some sense that there are women who are “blameworthy.” So, these are the women who irresponsibly have sex and find themselves pregnant. And then there are women who are blameless: the women who are coerced, or have sex forced upon them, or are in situations that violate other deeply held convictions we have like convictions about exogamy. Those held fast for such a long time, but they’re utterly incoherent with the logic of the pro-life movement because if life is meaningful and we live in a culture of life, then it doesn’t matter how life is created. All lives matter, right?
So, I think what we’re beginning to see is a kind of unraveling of the pretense that any of this is woman-friendly, pro-woman, or intended to enhance the woman’s life or experience. Dispatching of the rape and incest exceptions goes hand-in-hand with moving back prohibitions to six weeks or eight weeks because what matters is the fetus. You’re a host. I can’t be more plain than that. You are a host.
I [previously] sounded an alarm on “snowflake adoptions” a long time ago. Everyone thought I was crazy, alarmist, hyperbolic. Snowflake adoptions refer to embryos that are put together—like a donor egg, donor sperm—in a laboratory for the purpose of being implanted later through in vitro fertilization, but they make tons of these embryos at a time because they’re not sure which will be successfully implanted. The pro-life movement stepped in [to say] these are not just embryos. These are children to be brought to life. Just as we adopt children who are put up for adoption after they are born, we can adopt these embryos. You’re beginning to see where those seeds will flower, and what they flower into. You can’t say something like that and then turn around and be OK with the rape or incest exception. If all lives matter, even the lives that are on the shelf in a laboratory, then you can’t have an exception for rape and incest. What we’re seeing now is a full flowering of the robust culture of life that the pro-life movement has always wanted but hasn’t been able to get.
I will note: It is a selective understanding of what life means and whose lives matter. Because while you are protecting snowflake adoptions or adoptees, and while you’re protecting fetuses, we are not talking about maternal health. A lot of the states where these most restrictive laws are being passed have the worst outcomes for maternal health. We are not thinking about the conditions in which children are raised. We are not thinking about a public safety net for families. We’re not thinking about health care.
What’s the No. 1 concern at the court?
The Louisiana case, June Medical Services v. Gee, I think is really, really important. This is a case dealing with an admitting privileges law. These are one of those quotidian restrictions on abortion requiring abortion providers to have admitting privileges at local hospitals. Because there has been so much consolidation in the hospital industry with lots of hospitals being bought up by big consolidated enterprises—many of which are Catholic like Dignity Health, for example—if you’re an abortion provider, you might not be granted admitting privileges at your local hospital because it’s owned by the larger entity that is basically operating under Catholic doctrine. The admitting privileges law at issue in June Services is very similar to the admitting privileges law that the court struck down in 2016 in Whole Woman’s Health v. Hellerstedt.
That was a Texas law, but it’s very similar to the one that’s being challenged in the Louisiana case. Whole Woman’s Health really supported and bolstered Planned Parenthood v. Casey, gave the Casey standard some teeth, said that courts had to really dig in and investigate the kinds of rationales that legislatures put forth for justifying these restrictions on abortion.
I think if they take that case, all bets are off for what the states can say, how they can justify abortion, and what courts can do. To me, that would signal an appetite for loosening the standard of review for abortion restrictions even further from the undue burden standard to something that’s more like rational basis. As long as the state puts forth something that’s reasonably palpable, we’ll take it and it’s got to be fine.
I think that’s the case because no one cares. No one is looking at that. No one cares that admitting privileges is just another way to limit the number of providers. No one cares that admitting privilege is a way that you can get a state like Louisiana that has only one remaining abortion clinic.
What do you tell people who are frustrated and anguished about this? I know that the other week was really hard for a lot of folks who just feel like they don’t recognize the country that they thought they lived in. What are you telling folks to do?
We are definitely slouching toward Gilead. I don’t think I’m being hyperbolic in saying that. They’re calling the question. How we respond as progressives, I think, is really important. The 2020 election, I think, is going to be really huge. This is a place where individuals, women can make their voices heard if this is something that they care about. I would love to see us spend as much time thinking about the Senate as we have been thinking about the presidential election. I mean, how many people are in the presidential election now? Fifty? Eleven million?
Just do a TED Talk people. Do a TED Talk, and go back to your Senate job.
Or seek a Senate job. There are a number of candidates in the presidential primary who would be quite plausible challengers to red state senators who are up for reelection. I’m looking at John Cornyn in Texas who has been a very careful steward of a lot of these laws and has been very clear about where his priors are, or Sonny Perdue in Georgia. There’s another one.
The Senate is really important, and no one is talking about it. Even if the Democrats lose the presidency in 2020, winning the Senate means that you can force the administration to put up more moderate judges than they have been putting up. They have had carte blanche, and Leonard Leo and the Federalist Society have just been churning them out. They have them vetted, they have them picked, and they are really extreme in their views, and they’re really extreme in their views on abortion rights.
If you care about this issue, if you are in one of those states where you have an upcoming Senate election, you need to be pressing for a viable candidate to challenge that incumbent, to flip that seat blue because that’s going to be huge. We’re going to live with these courts for a generation and a half regardless of what happens with the presidency.
Statehouse elections: We don’t even talk about them, but there’s been great work being done by Sister District Project. This was started by a group of people—one of my former students, Lala Wu, is among them—after the 2016 election, they decided that they were going to do something to address the problem of state legislatures passing restrictive laws. Instead of focusing on the federal level, they are going to focus on turning statehouses blue. They did a great job in Virginia. They are looking at other places.
Again, don’t just fret about abortion legislation when it’s on its way to the Supreme Court. Create the conditions where it can’t be passed in the first place. Get out, look at the statehouses, run for office, support those who are running to turn statehouses blue, and then think about the Senate. The presidency, yeah, we got to think about that, but the Senate is such a big deal in terms of institutions that are going to be with us for a long time. I would like to see people start focusing on those.