Abortion, Surveillance, and Vigilantism: An American Story

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S1: This ad free podcast is part of your slate plus membership.

S2: People who would say, well, this is just simply alarmism. This is extremism. To compare this to historical moments in the past. No, it’s not. It said those historical moments in the past were, in fact, extreme. It’s not our articulation of them that’s extreme. The move toward making abortion inaccessible to vast swaths of this country has been happening ever since Roe was decided. And there have been people who are not surprised by this, who have been working against that trend. And those are the people who are being targeted by this law.

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S1: Hi, and welcome to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court and the rule of law. And I am Dahlia Lithwick and I covered the courts for Slate. And today we’re going to bring you an off week special episode to discuss the order that was just handed down right before midnight on Wednesday night, upholding a really novel Texas Abortion, Law. This law, we’ve actually talked about it on the show before, is known as SB8. It effectively bans all abortions after the six week of pregnancy. Many, many women do not know that they are pregnant at six weeks of pregnancy. There is no exception for rape and incest. Governor Greg Abbott signed SB8 into law in May. And of course, the trick behind the law is that unlike similar deliberately unconstitutional abortion bans, heartbeat bans, what have you. SB8 doesn’t allow any state actors to enforce it. They are, in fact, prohibited from enforcing it. Instead, literally everyone else, any American anywhere is empowered, is, in fact, conscripted to bring civil lawsuits against either an abortion provider or anyone who quote AIDS and abets those terms, go and define an abortion. That could include your counselor who talks to you about your options or the Uber driver who drops you off at the clinic. Look, the law is concededly unconstitutional. Texas is well aware that the Supreme Court precedent sets the bar for Abortion, bans at viability that somewhere between 22 and 24 weeks. But this law was deliberately crafted so that there is no state actor and thus nobody for an abortion provider to take to court to try to get an injunction. One other thing, if an abortion provider is sued in state court under SB8 and they lose, well, the winning party not only gets a bounty of 10000 dollars, possibly more, they also collect attorney’s fees. Providers in this case tried to sue a whole bunch of defendants, including judges and others who will presumably be tasked with enforcing this law. This case was proceeding to trial in federal court until the 5th Circuit stepped in to just stop it. The providers then took the case, ironically, to the Supreme Court on Monday and the court ordered briefing on Tuesday night at midnight. The law went into effect and post six week Abortion, stopped in Texas. Now, according to the providers who are suing to block SB eight, at least 85 to 90 percent of abortions in Texas take place after that six week of pregnancy. All of those abortions are now illegal under SB8. The court remains silent as the law went into effect. The website, the 19th, describe the scene at the whole women’s health clinic in Fort Worth. As the clock ticks down to midnight and the clinic’s doctor Saddler prepared to close the doors, quote, One young woman arrived at her first appointment to the clinic that same night. She was a drug user. She told Sedler, set to begin serving a five year prison sentence in a week. She already had three children at home. She didn’t want to deliver a baby in jail. She dropped to her knees on the cold tile floor in front of sedler, begging her to take her to perform the Abortion,. So Wednesday was a long day of waiting for signals from the Supreme Court. And just before midnight, the order finally came down. Five justices in one long paragraph, unsigned, announced that Texas could continue to enforce its ban because it was unclear who the plaintiffs could sue and whether they could prevail at trial. All four dissenting justices, including Chief Justice John Roberts, expressed shock that an unconstitutional law would be allowed to stand in Texas based on a cursory glance on the shadow docket. Justice Sotomayor spoke for many of us when she wrote this, quote, The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny. A majority of justices have opted to bury their heads in the sand. Last night, the court soundly acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the court belatedly explains that it declined to grant relief because of procedural complexities of the state’s own invention and quote, It is truly hard, my friends, to overstate the enormity of what just took place on the shadow docket. My guests today are here to help us understand both the legal and constitutional issues at play, the ways in which history seems to be folding back upon itself, and the very immediate implications for women in their health. These two women are guiding lights in my own thinking, and I should also note that they are each speaking to us in-transit. So my apologies in advance for the imperfect quality of today’s audio. Michelle Goodwin is chancellor’s professor of law and director of the Center for Biotechnology and Global Health Policy at UC Irvine School of Law. Her book, Policing the Womb came out last year from Cambridge University Press. Professor Goodwin is also a committee member of the ACLU and host of the podcast on the issues with Michelle Goodwin. Rebecca Rebecca Traister is a writer at large for New York magazine. She has written about women from a feminist perspective for The New Republic Elle Salon. She’s contributed to the nation, The New York Observer, The New York Times and The Washington Post. She is also the author of All the Single Ladies and the award winning Big Girls Don’t Cry. And most recently, the author of the phenomenal book, Good and Mad Rebecca. Michelle, welcome to the podcast. Michelle, let’s just start with SB8. I guess I laid out the gist of it in my introduction, but you wrote in LMEs magazine that this kind of citizen attorney general vigilante law has a long and pretty sordid history that harkens back to the Fugitive Slave Act. Can you talk? Can you talk a little bit about the ways in which this really chimes in, the key of some very, very ugly American history?

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S2: First, thank you for having me on your show. Dahlia. And yes, this does hark back to some very dark American history and dark American history that has been supported through the United States Supreme Court. So the fugitive slave acts provided for citizen participation in the establishment, the furthering the preservation of American slavery. It weaponized the citizenry, deputized citizens to surveil, to start to apprehend people who were in violation of US laws by escaping themselves out of slavery, out of an inhumane situation. And there were bounties that were provided for their success and surveiling and successfully apprehending, obtaining individuals who dared to exercise liberty, autonomy and freedom. And when you think about this Texas law, there are certain analogs that eerily resemble that of the Fugitive Slave Act in that it provides for a right of action of private citizens. It provides for financial renumeration of those citizens who are able to successfully peg someone who has aided or abetted an individual in obtaining an Abortion,. And what this means with the law written in such broad terms that this could implicate the Uber driver, the Lyft driver, the bus driver, or the receptionist that works at an abortion clinic, virtually anybody. Who has been in the way of the path of a person exercising the constitutional right to terminate a pregnancy? What’s interesting about the law, Dahlia, is that after Roe v. Wade, there was Planned Parenthood v. Casey. And what comes out of there is that there should be no obstacle placed in the path of a woman and terminating a pregnancy. And Texas has flipped that on its head, which instead you may sue anybody who aids and a person on the path of terminating a pregnancy. It is a very dangerous law and it is very dangerous and alarming what has happened at the Supreme Court.

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S1: And Rebecca, you have been writing about women and their bodies and their autonomy for certainly as long as I’ve known you, and I want to caveat this, that you’re not a lawyer and don’t pretend to be one. I wonder if you can talk just for a minute about the fact that four decades after Casey Michele just talked about Casey, abortion opponents would frame their support for abortion bans in terms of, you know, deep solicitude for maternal health, wanting vulnerable women to make better choices, just having better Abortion, facilities. Deeply, deeply wanting them to be connected to, you know, health system that loved and cherished them. Boy, did that turn on a dime.

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S2: Right. Well, that rhetoric has always been just absolutely hollow from the start, as both of you know. And thank you for having me. I couldn’t be more honored to be talking with both of you. Both of your work is so fundamental to my own understanding of how this works, because I am not a lawyer. The first thing I would say is that that, you know, the aura of solicitude for for women’s health and bodies and well-being and they’re always infantilized protectionist approach of, you know, political and judicial limits on women’s freedom and autonomy as somehow for their benefit. That was always a lie. Right. That’s always a hollow lie. And it’s just another framing of how to prevent women from fully exercising their rights and experiencing access to a full and dignified existence in this country. You know, sort of socially, civically, economically, legally, sexually. That’s always how that stuff has been denied. And so the fact that they would turn on a dime, I mean, I don’t. Sure. Right. Because it was always it’s always it’s always a false fronts. But interestingly, listening to what Michelle is talking about in terms of the vigilantism aspect of this and the kind of payoff’s bounty payoff, truly bounty hunter payoffs being offered in Texas right now, one of the things that I can’t stop thinking about and that I’ve been rolling over in my head for the past couple of days, is that a law like this, which is so strange and has these deep historical roots that Michelle is describing, but it’s you know, it feels like, wow, ten thousand dollar bounties. They are targeting the very people who have seen us building toward this for decades and have organized to protect people from its impact. So, in fact, there have been limits on access to Abortion,, especially for poor women and for black and brown women for decades, basically ever since Roe was decided, thanks to the Hyde Amendment, which is a legislative rider that prevents anybody who receives federal insurance money from using that insurance money to get abortion, thereby making abortion all but illegal anyway in this country. But there have been and many people have remained asleep to this, right. This has been true. Abortion, has been inaccessible in huge parts of this country for years and decades. And yet people still satisfy themselves and go to sleep easily at night thinking, well, there’s Roe protecting us. Right. It doesn’t actually work to protect millions of people who need abortions out there. Right. But the people who have understood that are the activists in the Abortion, fund movement, in the reproductive justice movement who have been organizing over years to provide ways for women who have been cut off from that access to gain better access, to help them raise the money, to pay for procedures that they might not be able to afford, to help them travel and put them up in places that have mandatory waiting periods, or to get them out of areas where there’s no clinic or care available into areas where they can get an abortion. There are people dedicated, righteous activists and people who have worked their whole lives to do the very thing to support people who need to get Abortion, care, but have been prevented from doing so over decades, not just starting two days ago, but over decades. Right. This law takes aim at those systems of support, those activists, the ones who’ve been awake this whole time and have been working to stave off exactly this kind of this kind of restriction and this kind of punitive cruelty. It’s those the activists, the people who’ve known this was coming, that this law targets by saying that they themselves are now being made vulnerable, that they themselves are going to be the subject of vigilantism and bounty hunters for doing the righteous work of supporting the people who need the care that they’ve been barred from. And that’s something that I can’t stop thinking about, because, yes, this has been a decades long project for many, many people. And there is I see in the coverage of it this. Sense that this came up on us by surprise, it happened overnight in the dark of night and all that’s true in terms of how how the courts do it, did it and how and how the Supreme Court did it. But but the move toward making abortion inaccessible to vast swaths of this country has been has been happening ever since Roe was decided. And there have been people who are not surprised by this, who have been working against that trend. And those are the people who are being targeted by that by this law, which is the thing that I sort of can’t stop going over in my head all day to day.

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S1: Rebecca, I’m so glad you said that. One of the reasons that you and Michelle were my top picks for talking about this today is that I think both of you are people who are completely unsurprised by the decision, by what happened and the speed with which it happened, because both of you are people who’ve been shouting from the wilderness for a very long time that this was coming. Michel, there are so many problems with this law, including and I really want to lift up what Rebecca just said, that I think it partly intends to isolate women from the networks of people who could advise and care for them. But I want to really focus in on the fact that the Supreme Court choose to chose to let this bill stand on the basis of a really hyper technical jurisdictional argument. And I wonder what it signifies to you that this was disposed of in this kind of back of the napkin unsigned order in the middle of the night on the shadow docket, even as there’s a 15 week Mississippi abortion ban case teed up to be heard this fall. This could have been six three on the regular docket with regular briefing and regular argument, and none of that happened. Why?

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S2: Well, what this does is it shows a disdain in many ways for the lives of those who are affected by this Texas law. Now, in this dispatch of less than 72 hours of thought, which is what Justice Kagan said, the majority, which is a conservative majority, ultimately aided in gutting Roe v. Wade in the state of Texas. And to your point, they did so on this technical ground. Now, if one is to believe that this was the only choice that the Supreme Court had, then we’d have to believe that centuries of jurisprudence mean nothing, including Marbury v. Madison and all of the Supreme Court cases early on, centuries ago that established the Supreme Court as the supreme arbitrator arbiter of the land. And so one can’t take seriously the court’s failure to intervene in this case. And I think Justice Roberts dissenting opinion in the case makes that very clear, where he really shreds in many ways, his conservative cohorts in the court making clear that, of course, they could have intervened. And, of course, Justice Sotomayor issued a very compelling dissent. As I mentioned, Justice Kagan did as well. But what this the word was for the Supreme Court, the majority, to come away with clean hands in that they make no argument as to the constitutionality of the law. So they get to appear as if their own priors were not somehow on display and their refusal to impose an injunction. In this case, as Rebecca mentioned, this is a long time in coming. And so as we look at the jurisprudence that’s been articulated and dispensed by these justices, as we look at their private leanings, such as Justice Amy Coney Barrett in this advertisements that she has signed on to the speeches that Justice Alito has given, the dissents and concurrences coming from Justice Clarence Thomas, that this chulo has been a victorious moment for them. And let’s be clear that this is part of a very well oiled machine. And part of this machine has been the lifting of the Federalist Society that has played an enormous, in fact, an outsized role. And who sits on the bench today? Let’s be clear that there are a number of movements that. Come together to put us in this particular space. The decades long anti-abortion movement, which has been well oiled and well funded with some of the sharpest legal minds, paid a lot of money to help along this vein. And we see that in the Mississippi case. We see that in the Texas legislation here. That movement has also affected who sits on the bench as well, when Donald Trump was in office as president. He was able to nominate more judges to the federal bench than any other president save George Washington. Most of those judges that he nominated were already filtered through the most conservative filter ever. Those are people who are on the court and on the Fifth Circuit as well. And so we can’t see the Supreme Court’s involvement is just simply isolated, isolated from their involvement in social groups. We can’t see what Texas, the legislature did as isolate it from the broader movement and even isolated from Mississippi in these other states. This has been a deeply coordinated movement that has taken foot. And in that way, no, it’s not surprising what these conservative justices just did. And these are the warnings that Rebecca has issued and that I’ve issued in a book at across many, many different law review articles and op ed. This is a complete disregard as well for the health and safety of the people who are most affected by this. Let’s remember that in 2016 and whole women’s health, v. Heller said. Justice Breyer observed and this was based on a robust empirical record from the district court and from science and evidence through empirical research that a person is 14 times more likely to die nationwide in the United States by carrying a pregnancy to term than by terminating it. Now, let’s add what that looks like in Texas, where the maternal mortality rate is considered amongst the worst, not just in the United States, but in the entire developed world. And then let’s add on the layer of race to this, too, because nationwide a black woman is three and a half times more likely to die than white women who carry pregnancies to term. But what we look at Texas and certain counties in districts in Texas, those percentages dramatically multiply. So in many ways, it is not extreme to say at all that for some women there was already a death sentence by coercive means of forcing them to carry pregnancies to term that they did not want and that were dangerous to their health. What Texas has shown now is a complete disregard for that. And let’s be clear, the statistics on maternal mortality coming out of Texas are coming out of the Texas Department of Health and Safety. These are not ones that are being made up by pro-choice groups or anything else. This is Texas old data about how deadly it is to be in Texas and to be pregnant. And the data from that is actually, sadly, not much different than the infant mortality rate in Texas. It would be great if the Texas legislature prioritized attention to that. The fact that they don’t reveals an incredible disdain for the lives of the people who can become pregnant.

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S1: And I want to be really clear that we are talking to Michel in a hotel room, Rebecca in her car. We briefly lost Rebecca for a second there. But Rebecca, I want to ask you a version of the very same question I asked Michel, which is, is there any way to take this late night order that doesn’t, even, as Michelle noted, pretend to grapple with the constitutionality of Roe and Casey? The merits of the case, but instead just bats it away and says, oh, well, I guess there’s nothing to be done, will consign the women in the second most populous state in the country to having the kinds of outcomes Michelle’s been describing. There’s a kind of sloppy carelessness about it that feels to me really profoundly different from the urgency we heard from the justices, even on the shadow docket, maybe especially on the shadow docket, when the people coming to them with exigent concerns wanted to pray in Covid together or wanted to execute somebody on death row or wanted to, as we saw last week, reinstate the remain in Mexico policy. Those things, those exigent concerns are seen as so visible and so urgent to the justices. This felt like really, really profoundly different. And I guess I want to ask you what I asked Michel, which is, is there some explanation for why they wouldn’t just sit back, take the Mississippi case, have it come out, 63 fiddle with the doctrine, why it feels like this, not just back of the napkin, but back of the hand.

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S3: It’s so interesting because that’s actually you mentioned that I was in the car and. I hope that because my audio did go out, that I’m not going to repeat anything that Michelle just said or not engage with it substantively, but I didn’t hear parts of her answer. But it’s what my family has been debating in this car ride this entire day. That question that you just posed, why didn’t they just wait? Right. And and I can’t pretend to know the answer. They could have done it. And you write this Dahlia in your in your column. They could have done the chin stroking. We’re taking this very seriously. And they chose not to do it. Why? One answer is almost certainly. Just pure disdain and disregard for the kinds of people they imagine need Abortion, now we know that all kinds of people need Abortion,. We also know that certain people will always have access to Abortion, wealthy people, white people with with money and means and the protections of the system and elite systems that will protect them. Right. But but the messaging of this, including, as you say, this just the delay, the lack of urgency that they didn’t they didn’t do this decision a night before. It’s like it’s below their it’s below their concern. Right. You know, Adam Serwer wrote so much with regard to the Trump administration was brilliant observation that I think was incredibly vivid and descriptive of the politics of the Trump administration. The cruelty is the point, right, that there is a message of power. There’s a message of domination in showing your disregard and your disdain, and that this is not important. Right. And that’s part of what my guest is about, why they did it. It’s certainly an issue that’s important to many of them. Right. We know that Abortion, is important to Amy Coney Barrett. We know that Abortion, is important to Brett Kavanaugh. We know that the you know, that this is not something they are not interested in. And so and I can’t answer Dahlia. I don’t I don’t have a great guess about why they did this from a layperson’s perspective, who doesn’t? I don’t have the kind of legal background that you and Michelle do. I think, wow, it feels like this is actually undercutting. The court itself and and precedent, even if it’s precedent that we may guess they’re eager to overturn. Right. And I believe they are eager to overturn it. And and I have suspected that they would for a long time. But to say like we’re not even going to bother. To to uphold this federal law that was made by our body, by the Supreme Court. Feels to me to be self. Diminishing in some way. And I am confused by it, and this is the conversation we have been having in the car, but we also know that this project and this may be what I heard Michelle talking about, the years of organizing from an anti-abortion movement. There’s also been years of organizing by a Republican Party to put a court in place. That would take all of the same. For for reproductive autonomy and and reverse Roe or make it. Functionally meaningless, take away, uh, fully take away the rights and access to abortion care, to full health care. And this has been a mission of a Republican Party, and we’ve known it. And it’s happened through state legislatures. Right. And the conservative movement that was obsessed with taking over state legislatures to excellent effect that you have state legislatures that come up with these wild laws, like the one in Texas to taking over the Supreme Court, you know, and a Supreme Court seat that was that was held hostage by Mitch McConnell in the in the last year of Barack Obama’s term to a Senate, the jammed through a replacement for for Ruth Bader Ginsburg in in the last days of Donald Trump’s administration. The Tea Party that this is all been sort of in the cover of night stuff that was just barely under the surface of the Republican Party for decades. It was the rise of the Tea Party that said it was all about, you know, economic conservatism and being worried about taxation, but in fact, just got into power 10 years ago and started voting to defund Planned Parenthood every week. I mean, that’s literally what the Tea Party cared about. And yet we also had a press that didn’t acknowledge that at the time, a political press that kept saying, no, no, no, this is this is about taxes.

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S2: And I would actually like to speak to that point, Rebecca, because the the press, that traditional press that you talk about, what was also frustrating is that you see this kind of uptick between 2010 and 2013, dramatic between that time, 10 to 13 more anti-abortion, anti reproductive rights laws that are proposed and enacted than the 30 years prior. And this is during the time that Barack Obama is in office. And there are reporters who are kind of framing this time of the Tea Party as well. This is just all politics. And they’re divorcing it from the importance of race and being part of this discourse and the ability to use race, weaponized racism, weaponized white supremacy in ways that at that time there were reporters talking about we were post-racial. How wonderful it is. We have a black president. This is the new coming of America. And there were those like you, like me, and that other people were saying, no, look at what this represents. This is actually dangerous, what’s taking place. And sadly, it’s taken a while for traditional news media to catch up.

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S3: It’s taken a really I mean, as part of the traditional news media. Right. I can end who has been told so many times over. You know, I guess now I’ve been writing about this for a couple of decades and who has been told over and over again some version of you’re being hysterical if you think this is what’s going on. Right. And in fact, that is certainly you’re so right about how the right used Barack Obama’s presidency and the kind of the willful sleepiness that it engendered in in on the left and the liberal.

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S2: Oh, absolutely. But got to pat itself on the back and say, look at what we helped to do. Right. I mean, it’s post-racial.

S3: Right. I think we elected a black president, a post-racial.

S2: Was white liberals celebrating themselves and saying, look at what we did. We got Barack Obama in the White House while being asleep at the wheel on all of these other fronts.

S3: And to be clear, the Democratic Party has played a really crucial part here, too, in encouraging that we pull in. Right. Is that a word? I’m very tired. You know, the Democratic Party has refused. If the press refuse to acknowledge what the right was doing in building its power in state legislatures, in taking over the court, in moving in this direction, the Democratic Party, too, was theoretically supposed to be on the side of reproductive rights and autonomy. Has absolutely refused to fight for them up until as recently as the Amy Coney Barrett confirmation hearing, where nobody wanted to have the fight because the Democratic Party has has absorbed an inaccurate and incorrect message that people find Abortion, icky. And I would argue that that is because they find because there is an assumption that anything having to do with women’s autonomy and human full and equal human driving is a key right to a lot of people. But the Democratic Party has not fought on this, despite the fact that the legality of abortion is actually one of the most broadly popular issues in this country. Even in red states, people the press again, would have you believe that the country is irrevocably divided on this, right? That it’s 50/50. Nobody’s ever changing their mind. But in fact, good, smart polling over the past decade has shown that that is a myth. Seven in 10 people, even in purple and red states, want abortion to remain legal in some form. And the Democratic Party, despite having that very good, strong evidence in front of them, has refused to fight for abortion rights, for better abortion access. You know, this administration is the first time since the 90s that a budget has in its first draft not included the Hyde Amendment. The Democratic Party has permitted the Hyde Amendment to be in the budget. Yet through the Obama administration. The Democratic Party has refused to fight for Abortion, and in fact, has contributed to the idea that it is there’s something sort of distasteful about it, that there’s something about it, that it’s a cultural issue rather than a key economic issue. The Democratic Party has been very much a part of this story, too, and has also been absolutely asleep at the wheel. While this was very clear to many people who weren’t listening to and who were called hysterical, literally called hysterical regularly, who’d been saying, look, this is what we’re building to, this is what’s happening, this is what the right is trying to do. And people who’ve been saying that, we’re told that they were fantasists, that they were overdramatic, they were feminised, basically by saying, you’re being overdramatic.

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S1: Rebecca, I’m so, so glad you said this. And I and I want to stop for a moment and honor the fact that Rebecca and I have stood on many a street corner in Brooklyn and asked each other, am I hysterical right now, having had somebody tweet that at us or shout that at us? So I think it’s really, really important to fold into this conversation how subject you can be to claims that you’re overreacting. And I also want to on behalf of, you know, a lot of the mainstream press acknowledge the fact that this narrative about this moderate centrist court, this redemption narrative that says that, oh, look, at the end of the 2021 term and look at how centrist Brett Kavanaugh was and look how centrist Amy Coney Barrett and look at how they are drawn like magnets to how right the left fundamentally is, how correct to the left fundamentally is. And look at how centrists and moderates they are. I mean, we we really, really wanted that story. We peddled that story. The public right now, Gallup polling is showing that 51 percent of Democrats love the John Roberts court. So we also played a part in that narrative of normalizing and legitimizing a court that was inexorably going to do this and was selected to do this. And I guess under this rubric of gaslighting, I mean, we’ve talked about the ways in which the court was gaslighting us. The DNC was gaslighting us, the press was gaslighting us. I guess I want to give both of you a chance to say that the

S2: just

S1: the political system itself kept insisting that there was something about the way women were reacting to Brett Kavanaugh, the way they were reacting to Barrett. That was, again, over-the-top and hysterical. That wasn’t sober and legalistic. And that I’m just thinking of you, Rebecca, responding to Ben Sasse, saying, you know, these women are nuts. Why are they dressed up like Handmaid, saying that they’re going to lose Abortion,? I mean, the gaslighting all the way down.

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S3: So so there are two instances that I think of. One is that Ben Sasse and that was during the Kavanaugh confirmation hearings, in fact, before he was accused of sexual assault by Christine Blasey Ford when protesters were yelling in the chamber about abortion rights. Ben Sasse, who is the senator from Nebraska, who’s a history teacher, said this incredibly condescending thing, sort of from the perspective of a historian. Right. Like for decades I’ve been hearing people scream that women are going to die where. And he used the word hysteria. Right. You think that that’s an overstatement? No, he used the word hysteria. He said where did the hysteria come from? This is a ludicrous thing to say, because I’ve been hearing it for decades. Right. So that is this gaslighting and it’s this condescension from the white male Nebraskan senator or history teacher, like a Harvard degree or something, who is telling you that you’re just crazy if you think that the confirmation of Brett Kavanaugh to the Supreme Court is going to result in harm to women’s bodies, rights and autonomy. Right. So there’s that instance. And then I want to bring up another instance that I also can’t stop thinking about, which is the end of the Amy Coney Barrett hearings just this past fall when the Democratic senator from California, Dianne Feinstein, reached over and congratulated, as many people are watching this and just gobsmacked that after a Supreme Court seat was kept out of Barack Obama’s power. Right. As as Barack Obama was prevented by the Senate, by Mitch McConnell from appointing a justice to fill an empty seat in his last term. And Republicans jammed through Amy Coney Barrett, a known opponent of abortion rights and and the Democratic Party. There were a couple of people who really did fight, and I was grateful to them for it. But by and large, the Democratic Party sort of let this happen without saying this is without saying, no, this is a travesty. This is how this works. This is a horror show. This is what’s going to happen. Here are the things that it’s Abortion,. It’s voting, right? It’s the environment. It’s the planet. Without saying all those things as boldly as they should have been saying, they didn’t fight. They didn’t fight. And at the end of it, you have all these people watching me, watching my jaw on the floor, thinking, I can’t believe this is just happening. And Dianne Feinstein, a Democrat, reaches over and congratulate Lindsey Graham on the best smoothest confirmation hearing in her memory. That’s calculating, too. That’s telling all the people who are watching this thinking, oh, my God, I’m seeing the future and I’m seeing our systems, our government, our government, our planet unraveling here in front of me on the television. And a Democratic senator is congratulating a Republican senator on comedy. And and, you know, the smooth operations of the system, that’s gaslighting relating to just as much as fantasies.

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S2: So, you know, I would like to bring this back to another era. So pretty Barack Obama at a time in which I think, you know, there is value in being introspective and retrospective about this. And you can’t divorce this time from the 1980s and the perfect storm of mass incarceration and the attempts and success and villainize young black women as as er quote, crack moms who would have crack babies. And during that time, the rise of the surveillance and stalking of black women kind of reified Regan over in their pregnancy’s, the ways in which news media then to, you know, went to wards where there were premature babies who were acting as premature babies. Do they shake, they cry, brooming those babies and saying, well, these are the crack babies. And then the articles that were published in The Wall Street Journal, The New York Times, Washington Post, Rolling Stones, that if we were to read those articles day, we’d say what racism, what white supremacy baked into what is reported. The claims that these would be children who would grow up would be on educable. That these would be kids who have distorted genitalia, quite literally in these articles, things like that being said, that they would be brain defected, that these would be kids who would bring weapons to school and kindergarten, and that teachers would have to watch out for them, claims that there would be hundreds of thousands of them born based on no evidence whatsoever. The blacklisting of people, researchers like Dr Claire Coles at Emory and Halam occurred at Penn who were writing, saying, you know, we’ve been doing this research on maternal, fetal, fetal interface’s on with cocaine, with crack, with tobacco, with alcohol. And we do not see what you’re saying. And eventually they were shut out from being quoted in stories. But the race part of this story is really important, because this all has been built on the surveillance, the stalking, the criminalization, the civil punishment of black women, and the failure to recognize that the very earliest attempts then and of course, we could say the earliest attempts were during slavery, where we just just kind of normalized that. Black women have no control over their reproductive autonomy. But certainly in the 1980s, when prosecutors began to say, well, we can use existing child abuse statutes to come after you and to say that a fetus is a child in that way, and the failure to mount the cases then, which we’re basically personhood kinds of measures that prosecutors were kind of taking on their own to do or other kinds of attempts by saying that black women were trafficking drugs to their fetuses and using existing drug laws against black women in that way, or states like Wisconsin and Minnesota that enacted euphemistic crack baby Bombo laws that allowed for the civil confinement of any pregnant person at the time. Pregnant women, based on any doctor or medical providers, claim that somehow she was a threat to her fetus. These are all the things that were going on with black women being arrested and charged with murder for having miscarriages and stillbirths and where were the movement, but said now we have to attack that there should be no arrest of a person like really Gibbs, who was 15 years old when pregnant, 16 years old, when she had a stillbirth and charged in Mississippi with. Depraved heart murder because he had a stillbirth. Right. These were the things of the 80s and the 90s that really should have been paid attention to that served as a successful foundation where you could see that, OK, we can get through prosecuting these women on all sorts of matters related to their conduct and fetus. What more can we do? And so I think that we would be remiss if we didn’t pay attention to that time, as well as being important to the current discourse and dialogue.

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S1: I couldn’t agree more, and I think you’re so right, Michel, to start the clock before we initially started the clock because it was another part of our sleep fulness to coin Rebecca’s word that she coined, that none of that gets filtered into how we thought about these issues. And you’ve written so eloquently about the Michelle, I guess I did want to hear from you for a minute about just because you write so often and so frequently about women and their bodies and maternal health and miscarriage in Abortion,, what you think comes next. I mean, we’re looking at a raft of states I sent both of you. Florida’s already talking about passing a copycat law. We’re going to see a whole bunch of red states, I was suspect within days passing copycat laws. Tell us, Michelle, for a minute what it’s going to be like on the ground. Are we simply going to look at a world in which if you are in Mississippi, if you’re in Texas, if you’re in Florida, you literally have on paper a right to Abortion, post Roe v. Wade that you cannot access?

S2: Well, that’s right. I mean, so you spotted it a right to Abortion, that’s more illusory than real. And let’s real, you know, understand that these are a number of playbooks that have been harmed over time. So if you were to think about eugenics in the United States when the state of Virginia’s eugenics law goes up before the United States Supreme Court, 1927, Buck v. Bell. I mean, it’s done as a test case, right? In some ways, one could look at this as a test case that’s successful. And what does it do? It means then that are a number of states after that that enact eugenics laws. Right. It becomes like a model law. Much of what’s been done is to test out what could become model laws. And so, yes, we will see those copycat laws, because we also see that the Supreme Court was sending a signal by its failure to act its action that was also a failure to act was, in fact, a very powerful and strong signal from the most powerful tower that there is in the land about the brokenness of this aspect of our democracy when it comes to upholding the types of laws and constitutional protections that will aid women in the furtherance of their well-being, of their health, of their privacy, of their autonomy. And we’ve seen that time and again. And it’s important that we understand that going right back to what was said in that to the extent that there would be people who would say, well, this is just simply alarmism. This is extremism. To compare this to historical moments in the past. No, it’s not. It’s that those historical moments in the past were, in fact, extreme. It’s not our articulation of them that’s extreme. It’s just that it is unfortunate and sad and horrific that we are in a country that would have fugitive slave laws, that we are in a country that would have eugenics laws, and that now we are in a country where Roe v. Wade could be upended in the way that it did in the Supreme Court would claim that it had no choice but to do what it did.

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S1: And Rebecca, because this has been so desperately hopeless. I guess I want to ask you and maybe this is going to be an even more depressing answer, but now we have President Biden saying he’s launching, quote, a whole government effort to see how the federal government can respond to Texas. And I guess I’m wondering, I mean, I know you think about this harder than most people. Is there a whole government effort to be brought to bear? Is there a master plan that I don’t know about that you can share with us?

S3: Yeah. No, I know the master plan. I know the master plan. Expand the court. Yeah, that’s

S1: it. That seems to be the effort.

S3: That’s the plan. No, I don’t think that’s Biden’s plan. No. And I’m livid about it. I don’t you know, there’s this sense, again, like there’s been this unwillingness to actually address that. It would be too much. That would be over the top. One of the things as I listen to Michelle talk and think about the history and think about how in so many ways the structure of this particular super weird law reverts to such an old American norm. Right. Like where our economy was built on. And, you know, the economic element of this, the payoff. Yes, the vigilantism, the fugitive slave law, slavery itself, where the country’s very underpinnings, its economy, its government, everything is built on this institution that relies on controlling black women reproduction. Right. The production of of enslaved bodies and limiting. The autonomy of enslaved women and more broadly, you know, a country that was built on limiting women’s civic participation, including white women, civic participation, and denied them the vote for a very long time. This is what the country is made of. And in fact, one of the things that’s happened over the past century and a half is that there have been these enormous long movements that have in some cases resulted in increased protections and freedoms. Right. Some of them judicial, some of them Supreme Court decision, Roe v. Wade, some of them legislative changes that have built better laws, protections and expanded freedom. But the fact that they did this is this way that they can get around to going back to the norm. Right. Revert to the founding principles of this country, built on restricted liberty and inequalities from which people will profit. Some people will profit and some people will pay. Right. That’s what that’s what this is. Even though there’s probably going to be a more strict version of it coming in certain months. Right. I the hope

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S1: Rebecca you’re cutting out will try to maybe Rebecca we can retake the one thing you just said.

S2: I have I have one thing and we’re going to be pulling out here. I’m not keeping them any longer. But I mean, I would only say that there is something X Roe mean an extra. Poetically American in the worst sense about. They’ll work around when they could just. They could just have straightforwardly overturned the judicial protection that, you know, people work toward. Over decades, the century to gain protected rights to Abortion, care. They could have just frontally reverse that, but instead they chose to do this for profit thing that harkened back to like to, as Michelle said, fugitive slave laws, two to the ways in which people could profit off of the surveillance and policing of of. Women’s bodies of pregnant bodies. Right. In this really nasty, visceral, punitive way, they didn’t do it the official way. Right. They and they will they will do it the official way. But in this case, they did it with bounty hunters and money and payoffs. That takes takes us right back to the founding, to the foundations of this country and its economy and and its government. On the surveillance, patrolling and enslavement of people, the denying the denial of rights to bodily autonomy or civic participation to women, and the fact that they chose to do it this way is just there is an ugliness about it. That takes me straight back to the beginning.

S1: Michelle, I just want to give you a chance, because I know your inbox is flooded, Rebekah’s is flooded. Mine is flooded by women saying, what can I do? What’s to be done?

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S2: I would answer that on multiple fronts. The first is to understand the political economics behind this and the importance of political empowerment. The Texas legislature has so gerrymandered our voting rights in that state that essentially what they’ve done is to create a recreate a pattern of voting for those who are of most economic means and sophistication, et cetera, to be able to access the right to vote, which means that on one level, it’s really hard to vote these people out of office. But that is really what is important here. The Texas legislature does not represent the demographics of the state. It is overwhelmingly white and it is overwhelmingly male. So there needs to be greater balance in in the Texas legislature. And so the political process, the political economy process is incredibly important. And that requires resources, it requires information, it requires a certain sense of indefatigability and making sure that people are able to access the right to vote, but also able to run for office. And so that’s important. It’s also important to understand that this may be a kind of long arc of work to be done. Notice that those who are in the majority on the Supreme Court in the shadow docket opinion, three of those are Trump appointed justices, which means they’re not going anywhere soon. So it’s important to also not lose hope in this, but it may be a fight for the long haul and not something that is just simply instant. But it does mean greater resources being provided to help support people who are in Texas who will be harmed by this law because they will have immediate needs. And that includes for some of them, it’s already happening that they’re going out of state in order to access abortion rights. Now, that is something that may have little impact on people who are wealthier and of means to be able to get up and go. But for poor people, people who are working class, then that is a huge barrier to being able to have the effective health care that they want. So support in that way is also critically important. And then lastly, and there’s so much more we could write whole books on those in terms of what we need to do. It’s important to understand that this is part of a national network of movement, and it’s not the last that we will see in Texas, because they’re already gearing up for additional laws to be presented in the state legislature and for the governor to be able to sign. It’s important to understand that that will serve as basically it is serving as an incubator for other states. So those who are in other states that worry about this coming to a movie theater near them. It’s important to pay attention and to try to make sure that laws such as this do not get enacted in their states. That means voting. That means being part of the political process. That means putting more women in office. And it also means being very mindful about the judicial process to many of the local state courts are ones where people actually have to run for office. And so we have to think about this is not just being involved in the political process as it relates to who will serve on local legislative bodies. But it also means being mindful about the people who are running to serve as judges in those states as well. And people need to be mindful about that in Texas and also in these other states, because the law itself is written in a kind of way to make it very hard, presumably for someone to actually seek some remedy from a federal court and that they would have to lean in to or file litigation that would be heard at the state court level. While I disagree with that and certainly believe that the Supreme Court could have issued an injunction in this case, it still raises an important matter with regard to who serves on state courts. And I’d add one other thing to that, too. When we’re thinking about elections, people running for office and things like that is that every level. Of governing needs more women, needs more women of color. And so every effort that can be made to make sure that every faith, including school boards that will determine whether sex education is taught in schools or not, all of those places, all of those institutions need greater diversity and representation, and they simply don’t have them. And it is startling and alarming in states like Texas, Mississippi, Alabama, etc..

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S1: So I want to thank both of you for taking time out of your respective days. Michel is in a hotel room. Rebecca is quite literally stopped on the side of a highway with her kids and pets in the car. I know you are both unbelievably busy, but you were precisely the two people I most needed to hear from today. And as expected, you both utterly broadened and deepened my understanding of what took place at the court this week. Michele Goodwin is chancellor’s professor of law and director of the Center for Biotechnology and Global Health Policy at UC Irvine School of Law. Her book, Policing the Womb came out last year from Cambridge University Press, and Rebecca Traister is a writer at large for New York magazine. She has written about women from a feminist perspective for The New Republic Elle Salon. She’s contributed to the nation, The New York Observer, The New York Times in The Washington Post. She’s the author of All the Single Ladies, The award winning Big Girls Don’t Cry. And most recently, of Good and Mad, both Michelle and Rebecca. I thank you very, very much. I needed to hear your voices today, which means there are a lot of women who did, too. Thanks for joining.

S2: Thank you, Dahlia. Thank you to both of you.

S1: That’s a wrap for this episode of Amicus. Thank you so much for listening. And thank you so much for all your letters and your questions. You can always keep in touch with us at Amicus at Slate dot com, or find us at Facebook dot com slash Amicus podcast. Today’s show was produced by Sara Burningham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcast. We will be back with another episode of Amicus next week. Until then,

S4: hang on in there.