Abortion on the Ballot

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Speaker 1: Let’s take.

Speaker 2: Welcome to the Wave Slate’s podcast about gender feminism and heading to the polls. Every episode you get a new pair of feminists to talk about the things we can’t get off our minds. And today you’ve got me, Shayna Roth, a senior producer for Slate. And I also produce The Waves.

Speaker 3: And me, Margaret Joseph Stern, a senior writer for Slate covering courts and the law.

Speaker 2: We are on the brink of a national abortion crisis. Access to abortion in the U.S. has been far from perfect. I will grant you that. But now the Supreme Court is expected to overturn Roe. The final opinion may come down sometime this month. And 13 states have trigger laws that will outright ban abortions immediately. You’ve heard all of this. Whether a pregnant person can get an abortion may well depend on how much they can spend to go out of state for the procedure. What the country will look like without Roe is bleak.

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Speaker 2: But today we’re going to focus on one surprising thing that can actually be done about this. Ballot initiatives. Sexy. I know. But the power of the ballot of voters deciding laws and policy is ingrained in us as Americans, even if we don’t always remember to use it as a ballot initiative. Is those things you see on the ballot that aren’t people or villages? And while it varies how they work in Michigan, you have to write up your ballot proposal and get it approved by a state board.

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Speaker 2: Basically, they check the language to make sure it’s all legally correct, follows the technical rules, etc. Then you go out and you collect signatures. These are people you’ve probably seen before when they come up to you on the street and say, Hey, do you want to sign our petition to X? Save the whales, legalize marijuana, what have you. Those are usually ballot measures. When the group gets enough signatures, they go back to the board and the board determines if there are enough valid signatures. If there are, it’s on the ballot minus in Michigan where it gets a little wonky and the legislature can adopt an amendment. It’s a whole big can of worms that honestly we don’t have time for. But basically, that’s how you get something passed by the people. This is a tool that anti-abortion groups have been utilizing for years to chip away the right to an abortion.

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Speaker 2: So today we’re going to look at my home state of Michigan, where a scrappy group that doesn’t want their daughters to have fewer rights than they do seeks to enshrine abortion rights into the state constitution. Later in the show, we’ll talk about how other countries let the voters decide and what the U.S. can learn from their successes. Stay with us.

Speaker 2: 52 year old Mary Minnick was standing at the outskirts of a farmers market in downtown Traverse City, Michigan, a couple weeks ago. It was blazing hot and she wore a bright pink. I stand with Planned Parenthood shirt and was holding a clipboard. She was gathering signatures for a ballot initiative that would create a state constitutional right to reproductive freedom in Michigan. The Michigan Reproductive Freedom for All initiative would allow abortion regulations after fetal viability, but the state could not ban the use of abortion to protect the life or physical or mental health of the pregnant individual. Basically what this means is abortion would be guaranteed in the state constitution. But up to a certain point, Mary told me her mother told her stories of women getting illegal abortions and she didn’t want her two daughters growing up fearing that.

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Speaker 4: And I can’t I can’t I can’t even sleep at night thinking about our daughters not having protection that they need to go to the doctor and have done what they need to get done, especially in the cases of rape or incest. So I got to do this. I have to do this. I have no choice.

Speaker 2: Michigan is one of the states that has a old law on the books that criminalizes abortion. So if Roe is overturned, the 1931 law could become enforceable and make anyone who performs an abortion guilty of a felony. And Michigan isn’t the only state reverting to the ballot to change its abortion laws. In Vermont, there’s also a measure to enshrine abortion rights in the state constitution, even though they don’t have a trigger law. But then we’re also seeing the opposite happen in Kansas and Kentucky. They want to pass measures to amend the Constitution to say there isn’t a right to an abortion. Mark, I feel I usually see the latter anti-abortion groups going to the ballot for measures they want. But are pro-choice groups starting to sort of take a page from their playbook?

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Speaker 3: That’s exactly right. For many years, abortion foes have promoted ballot initiatives to restrict access to reproductive health care and also override state courts that rule in favor of abortion and, of course, push the limits of Roe v Wade to see how far the Supreme Court would go to allow abortion restrictions. Since 1970, 84% of statewide ballot measures relating to abortion were designed to restrict access, not expand it. And that lopsided figure is largely a result of the status quo under Roe, where progressives were generally happy, if not perfectly content, with the baseline guarantee of the right to abortion before viability. Conservatives, on the other hand, used every tool at their disposal to roll back that right. Even with Roe still on the books and in a lot of red states, direct democracy proved to be a pretty potent weapon.

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Speaker 3: Now, with Roe about to fall, the energy is really shifting suddenly. You see almost every red state poised to enact a complete or near-total ban on abortion the moment Roe is off the books. But progressives in blue and purple states are scrambling to enshrine reproductive rights into their state laws. Once Roe’s baseline guaranteed disappears.

Speaker 2: And Michigan is an incredibly purple state, which we will get into in a minute.

Speaker 2: But I want to go back to Mary real quick. So she was one of around 12,000 people who signed up within days of the leaked opinion, according to Bridge Michigan, to help with the campaign. When she saw the draft, Mary said.

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Speaker 4: Where do I go to find these petitions? Where do I got to go? How many doors? How many names do I need?

Speaker 2: Now, in Michigan, there have been quite a few anti-abortion ballot initiatives. There’s been that so-called Fetal Heartbeat Abortion Ban Initiative in 2020, which was also proposed in a dozen other states. That didn’t go very far. But I don’t know that there’s been this level of excitement for either side when it comes to abortion initiatives in the past. They need 425,000 valid signatures by July 11th. And it sounds like they are very much well on their way to getting enough signatures to potentially get this on the ballot for the people to vote on. So Mary told me she’s knocked on 240 doors. Her goal was a thousand signatures. She thinks she’ll exceed that. And I have seen people out there gathering signatures for this initiative in ways that I haven’t seen for others. So given this level of excitement, I’m surprised that more states don’t have similar initiatives for the midterms.

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Speaker 3: So a big part of that is how Roe’s imminent demise kind of crept up on a lot of the country. People like me have been screaming since Amy Coney Barrett joined the court, even since Brett Kavanaugh joined the court, that Roe was in serious jeopardy. But for whatever reason, that didn’t seem to register until first, the Supreme Court allowed the Texas ban to stand. Back in the late fall. That is the law that. Allows any stranger to sue an abortion provider or anyone who facilitates an abortion for $10,000 if they perform the procedure after six weeks of pregnancy.

Speaker 3: And then, of course, on May 2nd, this draft opinion leaked from the Supreme Court. And I think not only reading that draft, but seeing it already laid out in the format of an official opinion, really made a dent in people’s psyches. They were like, Oh, my God, this is real. And if all of that had happened a year ago, two years ago, I think we would be seeing a lot more ballot initiatives this cycle about abortion. But because it happened fairly late in the game, people are getting off to a late start.

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Speaker 3: And the problem here is that the initiative process is often really cumbersome and time consuming. You have to gather a gazillion signatures. I mean, in Michigan, it’s 425,000. In other states, it’s even more. And then you have to make sure that enough of them survive the inevitable challenges from your opponents, which can be really time consuming. Go through signature by signature, making sure it’s legible, making sure that person is a valid voter, didn’t sign twice, whatever. And then you have to make sure your initiative survives other legal challenges in the courts, which we’ll talk about later. And so there are just so many veto points that activists have to make sure that they do literally everything right. And even then, that’s not always enough. So it takes years of preparation and execution. It’s not the kind of thing you can do off the cuff.

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Speaker 2: Absolutely. I mean, it seems like Michigan almost got lucky in a way, because they had started this initiative back in January and had gotten their ballot language approved way back at the beginning of the year. And now they’re able to get all of this extra support because of this opinion that came out. So, I mean, do you think we’re going to see in the next few years more and more states doing this?

Speaker 3: Yes, absolutely. And not just ballot initiatives, but, of course, hard fought battles over control of the legislature and the governor’s office and the state Supreme Court. State courts have so much power in this arena because they have the ultimate authority to interpret their state constitutions. We spend so much time talking about the federal constitution, the one in the National Archives with the Bill of Rights and all that stuff. But 50 different states have 50 different constitutions that differ in really meaningful ways. And again, it’s state courts that get to decide what that means and how to enforce those rights. And so the action, once SCOTUS overturns Roe, is going to devolve down to these state courts, and a lot of those positions are elected. So I think that as bitter and partisan as judicial elections already are in so many states, it’s going to get even more heated as those individuals and those races determine whether reproductive freedom can remain in a number of states in this country.

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Speaker 2: Let’s shift gears a little bit before the break to another way that states are in a position to fight. You had a great piece in Slate titled The Ironic Unintended Consequence of SCOTUS Plan to Overturn Roe. The irony was that when the opinion was leaked, blue states suddenly started making abortions easier and cheaper to obtain. So what? What’s going on there?

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Speaker 3: So Blue State Liberals have settled into a kind of inertia on reproductive freedom over the last few decades, right up until almost this very moment in a lot of these states, the old laws that made it pointlessly difficult to get an abortion remained on the books even before the Supreme Court signaled its intent to overrule Roe. You did see a couple of these states snapping into action. California strongly expanded abortion access over the last few years, and Illinois just last year repealed this law that required doctors to inform parents when they provide abortion to a minor. But I think it was the one two punch of the Supreme Court’s Texas decision allowing that six week ban to stand, and then the leak of the draft that pressed Democrats to finally prioritize this stuff.

Speaker 3: And lawmakers realized that all of these outdated statutes would prevent their own abortion providers from serving the flood of patients coming in from other states. And that’s already happening. States around Texas and around the country are already seeing a ton of patients from Texas come in to get abortion because it’s outlawed where they live. That’s going to happen with Oklahoma now that it’s illegal there and about 24 more states in the near future. So blue state lawmakers are starting to modernize their own abortion laws to make access easier and cheaper and say, you know what, we’re not just going to let the courts regulate this. We’re going to take an active role in making sure that everyone who needs an abortion can get one.

Speaker 2: So Michigan, as I said before, this is a very purple state. We currently have a Democratic governor and our U.S. senators have been Democrats for years. But it is incredibly hard to get a Democratic majority in either chamber of the state legislature. And in that piece for Slate, you called Michigan the most prominent success story so far when it comes to purple states. So what is it doing that? Other purple states could learn from aside from the ballot initiative.

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Speaker 3: So Michigan really illustrates the importance of democratic control over state judiciary. The state Supreme Court in Michigan has a progressive majority. Those seats are elected, and Democrats came through recently, flipped to the court to a43 liberal majority. And there are also a lot of left leaning judges on the lower courts. So reproductive rights advocates have launched a kind of two pronged approach. First, they filed a regular lawsuit asking a lower court judge to strike down that 1931 abortion ban that you were talking about earlier, to say that that ban violates the Michigan Constitution, even though the Michigan Constitution doesn’t yet explicitly protect a right to abortion, it doesn’t have the word abortion, that there are deep components of liberty and equality that are protected already under the Constitution that prevent the state from intruding into private health care decisions.

Speaker 3: And they prevailed. They convinced this lower court judge to issue an injunction that bars the enforcement of that ban from 1931. And the attorney general of the state is a Democrat. And she said if she’s not going to appeal that decision. So if Roe fell tomorrow, even absent any other action here, Michigan still would not be able to enforce its anti-abortion law because it is on hold in the courts.

Speaker 3: And at the same time, the Democratic governor of Michigan, Gretchen Whitmer, has asked the state Supreme Court to declare that as a matter of state law, the Michigan Constitution protects the right to abortion already. And if the court agrees, it will not only strike down that 1931 ban, but also potentially a bunch of other restrictions that Republicans have put in place over the last few decades. So the irony here is that after Roe Falls, Michigan might end up with more liberal and permissive abortion laws than it has right now as we speak.

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Speaker 2: We’re going to take a break here. But if you want to hear more from Mark and myself on another topic, check out our Waves Plus segment. Is this feminist where today Mark chose the topic and he chose chaos? So we are debating whether Ginny Tom is maintaining a career that directly conflicts with her husband’s work is feminist.

Speaker 3: And please consider supporting the show by joining Slate. Plus, members get benefits like zero ads on any Sleep podcast, no paywall on the Slate site and bonus content of shows like Amicus, Slate, Money and of course, this one. To learn more, go to Slate.com, slash the waves plus.

Speaker 2: Welcome back to the Waves. We started out in Michigan and now I want us to go abroad to Ireland, where citizens did successfully use their power of the vote to expand abortion access. In May 2018, the Land of the Shamrock held a vote to overturn an abortion ban, and the margins were not even close. 66.4% of voters approved with an almost 65% voter turnout, which was a record for Irish referendum voting.

Speaker 2: The vote allowed for abortions in the first 12 weeks of pregnancy or later. If there is a risk to the person that’s pregnant, which while it’s not a very lenient abortion policy under the old law, a person who got an illegal abortion could get up to 14 years in prison. And there wasn’t even an exception for crisis pregnancies. This was something that at the time Ireland was calling its, quote, quiet rebellion. According to CBS News, the National and those supporting overturning the ban had a pretty effective get out the vote strategy. Here’s a video that includes Irish comedians like Ashling Bay, Sharon Horgan, Chris O’Dowd and more.

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Speaker 5: Hello. Hi. It’s recently come to our attention that women are people too. This has shocked and appalled many people, understandably. I never really believed that Irish women could be trusted with their bodies because I remember how crazy we went for line dancing in the nineties. Obviously next Friday we have a big day coming up. I hope that you’ll go out there and vote yes because we need to help our women. You know, we can’t let them be alone in their experiences. I have at least one female cousin. I have a mother who is woman. Eight Irish aunties, ten female, first Irish.

Speaker 2: So this is one example of a nation where legalizing abortion at the ballot box worked really well. But many other nations have had either laws passed or courts have ruled in favour of legalizing abortion. Mark, I know it’s easy to think it doesn’t matter how it’s legalized as long as it is. But is one method better than the other? Are voter initiatives more secure? Or are court decisions or something else?

Speaker 3: So when conservatives attack Roe and debate those who support Roe and other Supreme Court decisions protecting abortion, they always say, look, if you believe in this so deeply and you’re so convinced that the American people agree with you, why not enact abortion rights democratically or enshrine it in state constitutions or in the federal constitution and make it explicit rather than drawing on implicit guarantees in the Constitution? And I think that this cautionary tale that I will tell from Florida illustrates the potential pitfalls of that approach and the bad faith of those who are making that argument.

Speaker 3: So in 1980, the people of my home state of Florida enacted an amendment to their constitution through a ballot initiative, so it passed with more than 60% of the vote. Very successful. A landmark decision by the people here. And the amendment enshrined an explicit right to privacy under Florida law. So the right to privacy, that language did not come out of nowhere. That was the exact basis of the Supreme Court’s reasoning in Roe versus Wade.

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Speaker 3: So the whole point of the amendment was to prevent the Florida legislature from unduly restricting abortion access by basically copying and pasting Roe v Wade from the Supreme Court’s decision into the state constitution and saying, hey, that right to privacy that the Supreme Court says protects abortion. It is a bedrock guarantee in Florida as well and for decades. To its credit, the Florida Supreme Court enforced this right against a slew of anti-abortion laws enacted by Republicans, including a parental consent law forcing minors to get their parents consent before terminating a pregnancy, as well as a somewhat more lenient parental notification law requiring notification of parents. And Florida during this time really became a bastion of reproductive freedom in the Southeast, a destination state for patients all across the south who are facing increasingly hostile abortion restrictions.

Speaker 3: But over the last few years, Ron DeSantis has stacked the Florida Supreme Court with far right Republican justices straight out of the Federalist Society. And that court now has a 6 to 1 ultra conservative majority. The new conservative members have gleefully shredded every liberal precedent they’ve come across.

Speaker 3: And shortly after DeSantis stopped the court, the legislature passed an incredibly strict parental consent law, compelling minors to get a parent’s consent before obtaining an abortion. Now, this law is virtually identical to one that the Florida Supreme Court struck down years ago under the right to privacy that was specifically enshrined in the state crime. The tuition to stop laws like this from getting passed. But the ACLU in Florida has not even challenged this new parental consent law because everybody knows that the new conservative majority will uphold it, even though the people of Florida literally amended their state constitution to prevent laws like this one.

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Speaker 3: And my point in telling this story is not just that Florida is a bad place where bad people go, but also that laws are only as good as the judge is enforcing them. And I am just 100% certain that if Florida somehow enacted a new constitutional amendment spelling out an inalienable right to abortion and use that word, conservative judges and justices would still find a way around it. And in fact, we’ve already seen this super far right state Supreme Court really interfere with progressive constitutional amendments by striking them down before they make it to the ballot, by finding some negligible justification for preventing the people from getting an opportunity to vote on progressive amendments like marijuana legalization.

Speaker 3: And so I think it’s important to remember that when reactionary partisans control the courts, ballot initiatives really are not worth the paper they’re printed on. And that does not mean that ballot initiatives don’t have their use, that they don’t bring communities together to fight for a common goal, that they don’t raise awareness, that they don’t move the law in a positive direction. But if that law is being interpreted by the same anti-abortion zealots who think that an embryo is a lawful person deserving of equal protection, it just does not matter because they will always find a way to override the will of the people. And that’s why, as important as these initiatives can be, I still think that control of the courts is the number one solution to this problem and has got to be, at the end of the day, the number one goal for people who believe that abortion is a human right.

Speaker 2: I do think, however, in Michigan will be an interesting bellwether for this is sometimes the ballot initiatives can excite voters, which can get them to the polls when they might not otherwise. And while they’re there, they will vote for Democrats. And I think that’s also something that in Michigan that they’re kind of hoping for. The Democrats are hoping that this ballot initiative in a race that looks otherwise not 100% for Gretchen Whitmer and not great for Democrats in the House and Senate that maybe initiative like an initiative like this that gets people excited, that gets people to the polls, will push them into seats of power, and then maybe they can also have a little bit more control in other areas.

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Speaker 3: So, look, I think that’s absolutely right. But I also think that there can be a bit of a double edged sword here, because what conservatives will say is, well, if the Michigan Constitution already protects abortion rights, as the governor is arguing, as that lower court judge held, then why would there be a need to amend the state constitution? And this was an issue that gay rights advocates sometimes bumped up against when they were arguing that the Constitution already protected marriage equality. The question was, well, why do you have to fight legislatively for this? Right, if you believe that the Constitution already protects it?

Speaker 3: And so it’s just important, I think, to remember that the other side has developed a very sophisticated and multi-prong strategy, both a political and a rhetorical strategy to box in progressives on this issue. And I think that the the name of the game is is drilling down this right so deeply into the legal system and into society that even far right judges couldn’t find a colorable excuse to repudiate it. And if someone said, why pass a constitutional amendment in Michigan if the Constitution protects it, the answer should be because Michigan might not always have a liberal state Supreme Court. And we want to make sure that if and when that court flips, the conservative majority will at least have a harder time repudiating the right to abortion when that word itself appears in the state’s fundamental charter.

Speaker 2: So while people are debating next moves in this likely post Roe world, what do you think is the best thing that everyday citizens should be doing?

Speaker 3: Donating to abortion funds. Honestly, until we get this mess sorted out, which in my view will take the next 30 to 50 years, the most helpful thing that individual advocates for reproductive rights can do is pay to ensure that people in need can terminate their pregnancies. And that is going to become even more difficult in the next couple of years when people are going to have to travel. Hundreds or thousands of miles to get to the nearest clinic or provider. That is going to take a lot of money.

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Speaker 3: And when I talk to progressive groups about this stuff, they always ask at the end, well, what can we do? And aside from voting for pro-choice politicians and signing these initiatives and whatever I say, I say you need to try and think of this as a tide. You should be opening your wallet to abortion funds, especially in the South right now, but soon in the Midwest as well, so that women can get the money that they need to hop on a plane and miss work and take unpaid leave to terminate the pregnancy that they got. For whatever reason, it’s none of my business.

Speaker 3: And if you aren’t doing that, in my view, you do not get to call yourself an advocate for reproductive rights in good standing. If you are not actively subsidizing reproductive health care and ensuring that people can get the care they need, where and when they need it, then you are really kind of betraying them and betraying the cause that you claim to stand for. So in addition to all this political stuff and legal stuff, which obviously I think is super important and I spend almost all of my waking hours thinking about you got to open your wallet and drain your bank accounts and give some money to these groups that need it more than anything else in the world.

Speaker 2: Vote then type.

Speaker 3: Yeah. That fits on a bumper sticker.

Speaker 2: Before we head out. We want to give some recommendations, Mark, in these trying times. What are you finding to love right now?

Speaker 3: So there is a band I’m very fond of called Let’s Eat Grandma, which is a funny name. It’s like a grammar joke, you know, like, let’s eat comma, grandma, you know, like, let’s eat grandma. They’re really good. There are two young women in the U.K. Their first album was their first two albums were fabulous. Their latest may be even better. It’s called To Ribbons, and in addition to the music, just being great. One thing I like a whole lot is that the album is about friendship and their friendship and pressures that they’ve had on their friendship and on their lives and how they have managed to work through them. And I am so tired of songs about love. I cannot deal with any more songs about love. It’s so boring. Every song is about love like it’s just the same topic. It just drives me nuts. And to have an entire album that’s exploring something else, anything else, that to me is very worthwhile. So that is an album that I recommend to Ribbons By. Let’s see, Grandma.

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Speaker 2: I am going to check that one out. And apparently this is our music episode because I’m also recommending a band on behalf of my two year old. She is so deeply in love with the band Haim right now. It is three Jewish sisters, Danielle, Alana, and they are on tour right now. They have several albums out, so I’m sure a lot of people have heard of them. But if you haven’t, their music is fun. It’s uplifting. My two year old will start like singing different lyrics of them. She loves watching their music videos, which are also really fun. And if you have to have music on all the time by the same band, you could do worse than Haim. So they have become the soundtrack of our lives right now and I highly recommend people check them out.

Speaker 3: Haim also have a lot of songs that are not just about romantic love, interesting songs about their favorite cities to live in, the dynamic of inter familial relationships, life in the modern world. A lot of issues that I think young people, even at the age of two, are beginning to grapple with themselves and could certainly wrap their heads around fragments of lyrics. And it could be an interesting and sophisticated listen for a young person. So I strongly endorse that.

Speaker 2: Rock agreed. Although it is awkward when your daughter is just walking around yelling, Don’t save me, don’t save me.

Speaker 3: Feminist icon in the making.

Speaker 1: That’s it.

Speaker 2: That’s our show. This week, The Waves is produced by myself, Shaina Roth.

Speaker 3: Shannon Paulus is our editorial director. Alicia montgomery is vice president of Audio.

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Speaker 2: We’d love to hear from you. Email us at the waves at slate.com.

Speaker 3: The waves will be back next week. Different hosts, different topic, same time and place.

Speaker 2: Thank you so much for being a Slate Plus member. And since you’re a member, you get this weekly segment. Is this feminist? Every week we debate whether something is feminist, and this week we are talking about Ginny Thomas, wife of Supreme Court Justice Clarence Thomas. Specifically, if it is feminist, for her to keep doing her activism and her job and her whatnots despite her husband’s job. Marc, you wanted to talk about this. This was your idea. Brilliant as it is. Take it away.

Speaker 3: So Ginny Thomas is the wife of Supreme Court Justice Clarence Thomas. She has been involved in conservative activism all of her professional career. Lately, that activism has intersected with Clarence Thomas, his work in a big way. She sent texts to President Trump’s chief of staff, urging him to overturn the election. She sent emails to state legislators urging them to overturn the vote and make Trump president. She facilitated this attempted coup and at the same time, her husband has been ruling on cases that directly implicate her work and consistently taking the view that she adopted in her advocacy.

Speaker 3: So the question I have is, is it feminist to criticize Jenny Thomas for doing work that clashes ethically with her husband’s? Or are we perhaps criticizing a woman for simply being herself and doing her own kind of work and refusing to step down or stand back just because her husband is involved in a similar field as well? I want to play devil’s advocate, actually, if I may, and give you the argument that I hear all the time, because I hear it so often and here you react to it. Is that is that acceptable?

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Speaker 2: Yes, absolutely.

Speaker 3: Okay. So the argument is, look, Supreme Court justices are mostly men. Still many of them have wives. Traditionally, men with power have subsumed their wives, identities and professional careers. And wives have played along and said, I’m not going to do anything important or meaningful with my life. I’ll simply support you and your career and your personal life and do the dishes and take care of the kids or whatever. And that is, I think we can all agree, a super toxic retrograde model. It’s very bad. We don’t want that anymore.

Speaker 3: And to a lot of conservatives, Jenny Thomas is the living repudiation of that model because she has said, you know what, I am really interested in politics. I am super involved in public affairs and issues that are very hot button and close to my heart. And I’m not going to stop advocating for them just because my husband happens to be a justice. I’m going to maintain my career as a lobbyist and consultant and activist because I deserve that as an individual, independent human.

Speaker 3: And it’s not just unfair, but grossly sexist for me to be told that I’m not allowed to do this work because of who my husband is. Or for the public to attribute my own views to my husband. Or vice versa. Married couples are allowed to have independent identities and independent views, and it just feels potentially reactionary and even misogynistic. To assume that Jenny Thomas is out here simply, you know, furthering her husband’s own agenda rather than promoting an agenda of her own.

Speaker 2: So that’s my argument. You know, look, aside from the things that Jenny Thomas is doing that we don’t like, you know, promoting this idea, this fallacy, this massive lie that the election was stolen from Donald Trump, all of that aside like baseline, the assumption that a woman should stop doing what she’s doing because of her husband’s job is not great. That being said, there should be a balance of careers when both partners are working, and I will use myself as an example. I’m a journalist. My husband is an attorney for the government. There have always been some stories that I have not been able to touch or to work on or anything like that because of his job. It doesn’t mean like, I can’t do my job and do things that I want, but there are some things that I just can’t go near. There’s some parameters on there. And that’s the compromise that you make in a relationship.

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Speaker 3: Mm hmm.

Speaker 2: And so this this time, the question becomes, you know, should Clarence Thomas be the one that is setting his self aside and saying, no, I’m not going to be doing these things? Probably yes. Or should Jenny Thomas say, hey, I’m going to go and work on these these other activities or, you know, become an activist for a different cause or like just step aside on this one. I think that that to me is is would be the more feminist way to go about this is to be like, look, there are a couple there’s give and take in all relationships, including in their jobs.

Speaker 3: This may be the most nuanced conversation that anyone has ever had about this topic. I have to. I think we should congratulate ourselves. Okay. So here’s what I will say to that. Yes. To whether Clarence Thomas deserves some of the burden here as well. He obviously should be recusing from any case that his wife has actively worked on or any case that involves a party that his wife is connected to or a part of. And the fact that he isn’t is to me, the real scandal. And I actually I will say I think that a lot of the public outrage devotes a disproportionate amount of attention to Ginny and not enough on Clarence for failing to take the steps that he should, as any reasonable jurist would, to ensure that that conflict doesn’t affect his work.

Speaker 3: And there’s a great model for this in the lower courts. On the D.C. Circuit, Judge Nina Pillard is a wonderful, progressive jurist, but her husband, David Cole, is an attorney for the ACLU, actually head of litigation at the ACLU. And whenever the ACLU comes before the D.C. Circuit, she recuses, even if her husband does not, say, directly involved in the case, you know, he’s not usually arguing he might not even be on the briefs, but she refuses to ensure that that conflict that could potentially be there doesn’t manifest itself and become, you know, glaring and an actual ethical problem. So I think that we might be like maybe tiptoeing our way towards slightly defending Jenny Thomas here by way of saying Clarence Thomas is the one who needs to recuse, the one with the power to say, I’m not touching these cases. And the fact that he’s not doing that is not necessarily Jenny’s fault.

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Speaker 2: Yes. Yes, I think that is I think that is probably fair. I mean, especially because he is the one that is the sort of final judge literally on all of this. It’s the one that probably needs to just step aside. I mean, it’s not that hard for him to say, look, I shouldn’t be involved in this. And granted, yes, there’s all the conservative politics that are overplaying this and what happens when you lose a conservative justice on the court. But like ethically, that’s the thing to do, Guy.

Speaker 3: Ethically, it’s an easy call. And yeah, I think I think we’re on the same page about this, trying to overturn the election. Very, very bad thing. Very bad is deservedly being investigated by the January six committee for that. But Clarence Thomas did not have to take a vote on the January six documents being released to Congress, and that’s on him for doing it anyway.

Speaker 2: Is there something you’re dying to know if it’s feminist or not? We’d love to hear from you. Email us at the waves at Slate.com.