Your Body, Their Choice

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Mary Harris: So, Susan, I wanted to talk to you. Because of everyone I know, I feel like you are the most prepared for the decision about abortion that just came out of the Supreme Court. Do you feel prepared? You know.

Susan Matthews: I feel like I thought I would know how to feel. And right now I feel a little bit blank still, but I do feel prepared to talk about it. So that’s good.

Mary Harris: Susan Matthews is the host of the current season of Slate’s podcast Slow Burn. It’s all about Roe v Wade, basically the prequel to the moment we’re all living through right now.

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Susan Matthews: I’m sitting in the same studio that I sat in to record so much of this show, and I got pretty emotional when I walked into this room.

Mary Harris: Susan says it’s a little hard to say what the emotion she’s feeling is, the shock and anger, but also, if she’s being honest, a bit of relief. She has covered the court for years now, has watched as the conservative justices slow roll abortion restrictions, limiting how the procedure is done and by whom. Making reproductive health care harder and harder to access. Now, with a decision in Dobbs V Jackson Women’s Health, this slow roll is over. Rose protections there overturned, too, susan. It’s a little like ripping off a mask. Not that many Americans like what they see under there.

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Susan Matthews: There was a Gallup poll yesterday that showed that the Supreme Court has 25% approval rating right now.

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Mary Harris: It’s historic lows.

Susan Matthews: Historic lows. And it just feels like I’m not sure how they feel about the fact that they’re. Doing this, and it’s not what most Americans want, and they’re doing it anyway, but at least they’re being upfront about it a little bit.

Susan Matthews: How I Feel About Today.

Mary Harris: The most surprising thing to me was that all the conservatives hung together here. John Roberts signed on to overturn Roe versus Wade, and it was a little unclear whether he would do that because he’s been so fond of the slow roll for so long. What did you make of that?

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Susan Matthews: I think that he understands where the power is. And I think that for a long time he was doing this balancing act like what the slow roll was about was, I think, maintaining legitimacy. I think that he has just acknowledged that they have the power now. I guess, like, why not use it? And in fact, I will say it’s actually a little bit similar to what happened in the original Roe decision.

Susan Matthews: The last person to cast their vote in the original ROE decision was the Chief Justice, Warren Burger, and he voted for in favor of Roe. And he had gone into it thinking, being kind of on the fence and being in favor of a more moderate ruling of a of a ruling that wasn’t as expansive. It wasn’t clear which side he was going to go on. And the people that we spoke with, they actually said in the end, the chief justice went with the majority. And I feel like there’s a little bit of a repeat happening here.

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Mary Harris: The chief justice is seeing which way the wind is blowing. Yeah. Today on the show to understand where we’re headed in the wake of this Supreme Court ruling, you need to look back, see exactly how we got here. I’m Mary Harris. You’re listening to What Next? Stick around.

Mary Harris: For your season of Slow Burn, you did this deep dive into the origins of Roe v Wade, and I want to kind of use that as a way to understand last week’s decision on jobs a bit better, because I do think it’s a little hard to get your brain around the fact that the Supreme Court has come to completely contradictory conclusions about abortion inside of a few decades. Like it’s 50 years. It’s not that long. It’s just not that long to totally change your mind here.

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Speaker 3: That case landed on my desk early in my years here.

Mary Harris: Roe v Wade was written by Harry Blackman.

Speaker 3: There is a question, I suppose, whether whether it ever will cease to be under scrutiny.

Mary Harris: And it was a72 decision, meaning only two justices at the time disagreed with legalizing abortion. I think that’s important. It just shows that, you know, there was some kind of majority agreement here.

Speaker 3: I shall carry it in a way to my grave. But I think that I have.

Mary Harris: I wonder if we can talk about how Harry Blackmun approached writing his opinion and talking to other justices about it and compare that to this Dobbs decision and how it came down. Like you talk about, Blackman spent the summer doing all this research at the Mayo Clinic before he wrote his opinion. So tell me about that.

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Susan Matthews: Yeah. Harry Blackman was appointed to the court by Richard Nixon when he was appointed. He was definitely considered a conservative. I think that in his own approach to the world, he was certainly a small key conservative. He was a meticulous researcher, and he was somebody who really liked to get things right. He was the third pick for the seat that he eventually got to. The other two nominees before him were were voted down.

Mary Harris: So he had something to prove.

Susan Matthews: Yeah. Harry Blackman referred to himself as old number three the whole time that he was on the Supreme Court. Like as that reminder, one of the reasons why I wanted to make the show was because I wanted to really understand why and how this happened. And the main criticism of Harry Blackman is that he didn’t approach it as a women’s rights issue. And in the late sixties and early seventies, one of the main groups of people who were talking about this were the doctors who were seeing the consequences of the lack of access to legal abortion and were bearing the consequences themselves as the people who are providing these these illegal abortions. So Harry Blackman looked into this and he he thought of it as a legal issue and he thought of it as a medical issue. And he really wanted to focus on the history. One of the things that he was really concerned about was that the Hippocratic Oath says it forbids abortion.

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Mary Harris: This was news to me. But yeah, the Hippocratic Oath includes a vow to, quote, not give a woman a PSA three to cause an abortion. So, you know. Yikes.

Speaker 3: During the argument, I inquired about the Hippocratic Oath.

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Susan Matthews: And Harry Blackman. Not only did he find two translations of the oath and he figured out it does in fact say that doctors should not offer abortions. He also researched how other doctors and how the general society in ancient Greece thought of the Hippocratic Oath. And what he found is that while we kind of revere it, at the time it was not thought of like the thing that set the standards.

Speaker 3: It convinced me that the Hippocratic Oath was localized and parochial and became a happy tradition, but was no barrier professionally or legally to the prescription of a contraceptive.

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Susan Matthews: And so he not only researched what it said, he researched how it was enforced and how it was respected at the time. And that informed how he came to this conclusion that prohibitions on abortion were a relatively modern phenomenon, like in human society generally. And that informed how he went into the court and in particular, Sam Alito’s draft. It is full of history, but it’s not really the same kind of investigation, I think, as Harry Blackman was.

Mary Harris: Yeah, that’s why I wanted to talk to you about this history aspect, because Alito does talk about history a lot and says, you know, uses that as the basis for his decision here. So what’s the difference in the investigation, to your mind, here? They came to such different conclusions about what history says about abortion.

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Susan Matthews: I think that you have to accept that what this Supreme Court is doing and was doing was they knew where they were going with this and they are pulling things out to support their conclusion. And the thing that really struck me about Harry Blackman and his approach to his work, and you can see it in his jurisprudence in his decades after Roe as well, is that he did not come to cases with priors. He very genuinely looked into things with a curiosity that I think is really missing now from how we think about so many of these issues that we disagree on. We know that it was the explicit intention of the press. And who appointed many of these justices, many of the presidents reminded these justices what has happened with the court in response in part to the Roe ruling has been so reactive and so intentional to get us to where we are today. How each man approached this, it could not be more different.

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Mary Harris: One thing I learned from listening to Slow Burn is that a lot of people involved in the 1972 Roe decision had some kind of personal experience with abortion that shaped them. Like everyone from the lawyer arguing to legalized abortion, Sarah Weddington, who’d had an abortion while she was in law school, she go to Mexico for it, to the Supreme Court justices themselves, like you talk specifically about Justice Louis Powell, who was pretty conservative but had had this experience with abortion that, you know, changed his mind and made him sign on to the majority here.

Susan Matthews: His experience with abortion was that he had a clerk, a man who worked in his office, who had been seeing a woman, a divorced woman, and she got pregnant and she asked him to help her perform an abortion.

Mary Harris: What he.

Susan Matthews: Did, she died as a result of that abortion. She bled out and he came to Louis Powell and said, I think I’m on the hook for this. Can you help me legally? Whoa. The real thing that I learned making this show is that you can’t talk about this issue abstractly because it is not abstract when it happens in people’s lives.

Mary Harris: I wonder if you see any evidence in any of the opinions on Dobbs last week that this Supreme Court is considering that kind of personal, visceral experience when they talk about abortion?

Susan Matthews: You know, I think that I’m going to answer that question by talking a little bit about this idea that adoption solves this. I think that you have to think about the justices that we have now in the original oral arguments in Dobbs. What Amy Coney Barrett says is that if a woman doesn’t want to be a mother, she can place the child for adoption. And not only does Amy Coney Barrett have two children that she adopted herself, but two other justices on the court, I believe it’s Thomas and Roberts, have also adopted children. And I think that when you think about personal experience and what this decision means, I don’t think that you can discount that. But I think that they’re they’re looking at it from the absolute opposite end of what that process is like.

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Susan Matthews: And one of the books that I read for the show that didn’t actually end up appearing on it was this book by Ann FESSLER. It’s called The Girls Who Went Away. And it’s about what Happened to women. And really two girls, two teenage girls in the fifties and sixties before they had the right or access to abortion. When they got pregnant, they will be sent to these kind of religious homes to carry their pregnancy to term, and then their children would be taken from them and placed for adoption. And Ann FESSLER herself was was one of these children. And when she grew up, she went back and she tried to talk to women who had had this experience. And the trauma that she unpacked is like the thing that undergirds this entire book. And I think that it just really explains that this is not a solution to this problem. Women are going to be asked to endure this.

Mary Harris: This new Supreme Court ruling. Technically, it upholds Mississippi’s ban on abortions after 15 weeks of pregnancy. And opponents of abortion will often say Mississippi’s 15 week ban. You know, it’s still more lenient than, say, abortion laws in many European countries. Do you think that’s a fair perspective here?

Susan Matthews: So I think that the practical issue with the 15 week ban is that the access that women have to abortion care and to health care in the United States is not parallel to the access that women have in Europe.

Mary Harris: Because we don’t have national health care.

Susan Matthews: Yeah, I think that that comparison is a little bit off from the start, but I also think that there is no desire to wait in a pregnancy for a longer if you have decided that you don’t want to carry that pregnancy. And so when you think about limiting abortion, first of all, most abortions happen quite early in a pregnancy, but the abortions that happen later in pregnancies are a form of health care, are so frequently the result of something going really, really wrong. And I just think that discounting that and that as a medical need and discounting women’s lived experiences and what they could face and what they could need is the thing that feels so jarring and gutting what a lot of people said who I talked to for the show. You know, if you’re only paying attention to the life of the fetus, you’re discounting the life of the mother. And I think that that is something that viscerally comes up in thinking about the timing here.

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Mary Harris: What is happening, because you report on the fact that when Roe was decided, the justices talked a lot about where the line was and originally thought, oh, maybe first trimester is is the line. But then Thurgood Marshall pushed because he said, listen, working class women are going to need time to get the kind of care that they need and was really thinking practically in that way, which is how the line became viability, like when is the fetus viable outside of the womb? And I thought that was really interesting because it was a really. Practical point.

Susan Matthews: Yeah, exactly. There are few practical points here.

Susan Matthews: And this also gets back to Harriet Blackman’s research into history. One of the things that he found is that abortion was almost always considered fine until this point of quickening, which can happen any time between 16 weeks of pregnancy and 20 weeks of pregnancy.

Mary Harris: And that’s when the mother feels the fetus.

Susan Matthews: Yes. Feels the fetal movement, which.

Mary Harris: If you’ve been pregnant, you know that like sometimes it’s just gas and you just don’t know.

Susan Matthews: Yet. So that was Harry Blackman knew that. And then, like I said, he was a small C conservative kind of person. He brought his line back to 212 weeks to the first trimester. I think that they actually looked at this and thought that it was a compromise between the people who are arguing that we needed to liberalize the abortion laws and the people who are arguing mostly on religious grounds that we needed to protect fetal personhood. Like I actually believe that they saw it as a compromise.

Mary Harris: To have this viability line. Yes.

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Susan Matthews: Each side kind of got something. And the fact that Roe is not thought of as a compromise position anymore, I think is is such a testament to what has happened in the conversation around abortion.

Mary Harris: The fact is the right to an abortion is an unenumerated right, as in it is not explicitly named in the Constitution. Instead, legal theory argues it derives from the 14th Amendment, which implies a right to privacy. The 14th Amendment is the legal basis for all kinds of other things to the right to use contraceptives, the right to queer intimacy, the right to same sex marriage. Which raises a question If the right to an abortion is no longer guaranteed, then what about everything else? In his concurring opinion in last week’s case. Justice Clarence Thomas noted that the decisions establishing these other rights, they were also worth reconsidering.

Susan Matthews: I have been thinking about this and thinking about what the 14th Amendment guarantees. I think that we almost do it a disservice when we just think about it as the right to privacy, because the right that is found in the 14th Amendment is really a right to family autonomy. It’s part of the 13th, 14th and 15th Amendment that were ratified after the Civil War to correct the wrongs of slavery. And the 14th Amendment was guaranteeing the enslaved who did not have these rights, the right to marry, who they wanted to form their families in the way that they wanted. I think that there is something that has happened to Roe where we think about it as the right to privacy and think of it just as, oh, it’s a it’s a conversation between a woman and a doctor. And I think that that is a disservice to what the reasoning in Roe is actually about. It’s the right to your own ability to decide what your family looks like.

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Susan Matthews: And the issue with that is that there are so many other rulings that rely on this reasoning to guarantee people the ability to make their families as they want them. The decisions that came right before Roe Loving versus Virginia, which guarantees the right to interracial marriage, and Griswold versus Connecticut, which guarantees married couples the right to use contraception. So this and there have been so many rights afterwards, including the right to gay marriage, which Clarence Thomas said explicitly in his concurrence he didn’t actually mention Loving versus Virginia, but Griswold Obergefell. All of those rights are now up for grabs. If we start to roll this back that right to family autonomy and to decide who you love, who you marry, who you’re intimate with, what the result of that is, that’s what is at risk now.

Mary Harris: Hey, Clarence Thomas did this funny two step where he said, you know, this ruling is just about abortion. It’s not about all these other cases. And then literally in the next paragraph was like, but maybe you should bring a case about those other things because we should talk about gay marriage and contraception and how much of that is enshrined in the Constitution. It was notable to me that he left out loving he’s in an interracial marriage himself. So I don’t know if that’s part of it, but it was notable to me that Loving was not part of that. But he clearly was saying bring the cases to the Supreme Court needs to decide this in these individual circumstances.

Susan Matthews: And I think that those two paragraphs that’s like the two step of the old court, how it was, would approach these issues. And the next paragraph is really. No, we’re actually breaking new ground here and here is where we are. So I think that that just gets back to a little bit of how this ruling feels different than so many other rulings, particularly on the issue of abortion that we’ve seen.

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Mary Harris: We’ll be back after a quick break.

Mary Harris: Many people are speculating about what kinds of additional scrutiny and criminal investigations we’re likely to see. Now in states that are hostile to abortions. Does this opinion from SCOTUS signal what kinds of things the justices are going to allow to take place now?

Susan Matthews: I think that the issue here is that once this protection is gone, so many things trickle down to being up to state level, even lower than state level, like local elected officials will be able to enforce the new rules that are on the books that are going to be allowed to go forth however they want. And that’s the thing that worries me the most, is that even beyond whatever happens on the federal level with what happens with abortion, when the guarantee to the right to abortion has been removed, all of these trigger laws that are going into place right.

Mary Harris: Now, these are laws that will make abortion illegal in various states.

Susan Matthews: That will make abortion illegal, that will criminalize helping anybody access abortion. All of these things that like Texas Texas’s SB eight law that we’ve all been looking and saying, well, nobody is really being sued over this, even though it’s had this chilling effect, like what happens next is so totally unknown, but it is up to such small decision makers and women’s lives will be in those people’s hands in a way that I just find to be absolutely terrifying.

Mary Harris: Yeah, I mean, we’re already seeing there’s a case in Texas where a woman was arrested for inducing her own abortion. A couple faced charges for not seeking medical attention after a miscarriage. It just seems you’re putting local prosecutors and cops and doctors in these positions of having to decide. And you don’t know what they think will make sense.

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Susan Matthews: Mm hmm.

Speaker 3: Mm hmm.

Mary Harris: I think your slow burn research is helpful in terms of imagining what happens now, because you talk to so many women who navigated getting an abortion when it wasn’t legal and had to kind of deal with the consequences. Do you think it’s useful to talk about Shirley Wheeler and her story and and how you see like a 21st century Shirley Wheeler playing out?

Susan Matthews: Yeah, I think the worry. So Shirlee Wheeler is the first woman who was convicted of manslaughter for getting an abortion, and that happened in Daytona Beach, Florida, in 1971. You know, I actually even talked to the prosecutor in that case. And the thing that is so fascinating is that what he said was while abortion was illegal and women were dying of illegal abortions, and so we had to do something about it. And Charlie Wheeler wouldn’t say who gave her the abortion, so we had to prosecute her instead. That is just totally an example of how this all goes off the rails.

Mary Harris: Hmm.

Mary Harris: What are some of the questions you think that Americans also maybe the Supreme Court might face in the coming months and years as the consequences of this decision become clear? Because like I noticed, for instance, Brett Kavanaugh in his concurrence, you know, he talked about like, well, we can’t be restricting people’s travel if they’re traveling out of state for abortions. That was responding to some things that are happening in various states where states are looking at that as an option, like not just banning abortion where I am, but banning an abortion for you if you’re a resident no matter where you go. And I thought that was interesting because it was just like. It was the beginning of the kinds of questions they’re going to face and state legislatures and politicians are going to face about like, how far do we go? Do you have scenarios in your mind when you’re like, This could be the next thing we’re debating? That could be.

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Susan Matthews: Yeah, there are so many different things. I mean, if I get, you know, the medication that induces abortion and I mail it to somebody in a state who needs it, am I possibly going to be criminal held criminally liable for that? The wild west of how this is going to work now when every single state has a totally different law is so it’s just such a mess. You mentioned earlier that Sarah Weddington went to Mexico to get her a legal abortion.

Mary Harris: Sarah Weddington, I should say she was the lawyer who argued Roe.

Susan Matthews: Mm hmm. Abortion was illegal in Mexico at that time. Women would go out of the country because if they were going to get an illegal procedure, they wanted to do it in a different country.

Mary Harris: Because they could leave.

Susan Matthews: Yeah, because they could leave. Like there were countries where abortion was legal, like Sweden and Japan that women would travel to, but often they would leave to just get it in a place where they could be prosecuted, where they didn’t live. I would also say that I hope that the questions that Americans start asking is, do we really want to live like this? Because the thing that I also found in my reporting that support for abortion before Roe and support for abortion now has maintained remarkably consistent over the past five decades. Like most Americans.

Mary Harris: Believe.

Susan Matthews: That women should have access to abortion care, and that has not changed. And so I hope that people start to wake up to the broader questions of why is this happening and should we allow it to happen in our democracy?

Mary Harris: You know, Jim Talent, you know, who’s a writer for The New Yorker. She argued that the future now actually looks bleaker than it did in the pre Roe era because the anti-abortion movement now is so extreme. It’s not about compromises. It’s about a really firm line about what’s right and what’s wrong. And I wonder if because you have the benefit of knowing all this history, I wonder if you agree with her on that or if you see anything different.

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Susan Matthews: So many of the women that I talked to talked about what it was like to fight for this. Right. And how busy they were. Like one of them said, Oh, I remember my planner from that year. Like, it was like, you know, committee meeting this day, like, or protest this day, like organizing situation this day. Like they were all so involved in it. And one of the women said to me, you know, people go to protests now, but there isn’t the organizing that follows from it.

Mary Harris: Yeah. When you talk to kind of modern day activists, are they saying anything like that? Like how does how does their experience compare?

Susan Matthews: Activism has sort of been institutionalized. Like you don’t volunteer for Planned Parenthood, you work for Planned Parenthood. Like I was talking to this one woman, I said like, oh, well, like she I knew that she had been a teacher. And I was like, oh, well, was that your job at that point to work for this organization that you’re working for? And she was like, No, no, no. I just did it nights like it was none of our jobs. And so I think that that’s one thing that has really, really changed, and that when you have an institution, it’s like Planned Parenthood, like these organizations who are doing this, where we’ve looked at them and we’ve kind of said, what is the immediate response like? Why aren’t they doing anything? Is that like it’s not necessarily run by the grassroots anymore?

Susan Matthews: And so I think that when you look at what is happening with the two sides that are fighting over this, the pro-life side has been organized and determined and they don’t just show up at protests, you know, the March for Life and things like that. They are focused on it in every single election. They are focused on in every single way that we hold power. And I think that that is frightening. And I also think that the way to respond to that is by organizing. You can’t just show up to a march. It’s about like what you’re doing the Tuesday after the march. That is the open question.

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Mary Harris: Susan Matthews I am so grateful for all of your work and reporting. Thanks for coming on the show.

Susan Matthews: I wish it was in better circumstances, but thank you for having me.

Mary Harris: Mary Susan Matthews is Slate’s news director and the host of Season seven of Slate’s podcast Slow Burn Roe v Wade. You should really go listen and subscribe, and that’s the show. What next is produced by Madeline Ducharme Carmel Delshad, Elaina Schwartz and Mary Wilson. We’re getting a little help these days from Anna Rubanova and Jared Downing. We are led by Alicia montgomery and Joanne Levine, a mary Harris Engel tracked me down on Twitter. Say hello. I’m at Mary’s desk. Thanks for listening.