Learning from Pre-Roe to Navigate Post-Roe
S1: This Ad free podcast is part of your Slate Plus membership. Hi, and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law. I am Dahlia Lithwick, and I cover some of those things for Slate. I am really excited to share with you the panel that we taped just last night with three amazing, amazing guests that help me stabilize and maybe contextualize a little bit after the spin cycle we’ve just been through. In the hours and days since, Justice Samuel Alito’s leaked draft opinion overturning Roe v Wade was published on Monday by Politico. So let’s get straight to the Crosscut Festival, where we take stock of what’s happened, why it’s happened, what might happen next with a group of women with truly unparalleled insight into this moment in history. When we first conceived of this panel, Roe v Wade, past, present and future, we didn’t expect it to be quite so on the nose. Events of this past week have signaled that in some sense the Roe of today is already past and the row of the future is about to begin. In light of the huge news from the Supreme Court this week, a draft was leaked of a majority opinion in Dobbs. That’s the Mississippi 15 week abortion ban. It looks to represent a 5 to 4 majority to overturn Roe v Wade and Planned Parenthood versus Casey. The conversation that you were about to hear literally could not be more urgent or timely or necessary. How we got here, where we go next. I am so delighted to introduce you to our wonderful panel today. Each of which is an exceptionally expert thinker on these issues that we’re about to discuss. Jessica Bruder is a journalist who writes about subcultures and social issues and the author of The New York Times best selling book, Nomadland, that has been translated into 24 languages and adapted into an Oscar winning film. Jessica is also the author of Burning Book and Snowden Sparks Trust in the Age of Surveillance. She’s been an adjunct professor at Columbia Journalism School and contributor to the New York Times for more than a decade. And she’s written cover features for New York, Wired and Harper’s magazines and The Atlantic. Next, we have Melissa Murray, Frederick AI and Grace Stokes, professor of law at the NYU School of Law and Faculty Director of the Birnbaum Women’s Leadership Network. Melissa teaches courses on family law, common law, criminal law, reproductive rights and feminist legal theory. She clerked for Supreme Court Justice Sonia Sotomayor, then on the U.S. Court of Appeals for the Second Circuit and for the Honorable Stephan Underhill of the U.S. District Court for the District of Connecticut. Susan Matthews is Slate’s news editor and my editor, who, during her time at Slate, has written and edited Slate’s jurisprudence, medical and women’s rights coverage and Susan’s newest project. She is the host of the seventh season of Slate’s Slow Burn podcast. This season, the focus is on the road to Roe v Wade, and I think we have a little trailer to share with you right now.
S2: Overnight tensions running high outside the Supreme Court. The draft opinion shows the court overturning Roe v Wade in a blistering ruling. What will the.
S3: Future of abortion look like in America? It might look a lot like the past.
S2: The illegal termination of pregnancy has reached epidemic proportions in this country.
S3: What do you think that people tend to misunderstand about the lay of the land before the decision?
S2: And the answer is lots.
S3: I’m Susan Matthews. And on this season of slow burn, we’re looking back at the years leading up to Roe v Wade.
S2: Over 50 years later, I still don’t know exactly what happened. To me, it’s always women who have the abortions, but it’s always men who make the law. And that stark reality hit me like a punch in the gut.
S3: We’ll tell the forgotten story of the first woman ever convicted of manslaughter for getting an abortion.
S1: Women are.
S4: Told, don’t worry, it’s never going to be you.
S5: It’s going to be the person who does the abortion. And here’s a case where actually now we’re coming for you, too.
S3: We’ll introduce you to the unlikely Catholic power couple who helped ignite the pro-life movement.
S2: And your heart just sinks in. You think these aren’t blobs of tissue. These are these are babies.
S3: And we’ll look at how a rookie Supreme Court justice appointed by Nixon, tackled one of the most pivotal cases in American history.
S2: Frankly, when they decided the case, they were all of one mind that they had to solve this issue once and for all.
S3: Slow Burn Season seven. Roe v Wade premieres Wednesday, June 1st. Subscribe wherever you listen to podcasts.
S2: And I actually remember dad saying, we will not.
S6: Live to see Roe overturned, but you kids will.
S1: So I want to welcome our panelists on what is a really, really fraught and complicated week for all of us. And thank you for joining us. Melissa Murray, maybe let’s start with you only because you were supposed to be in some sense the ghost of Roe present, but that’s changing under our feet. But can you just talk as briefly as you can about what it is that we learned this week from Justice Sam Alito’s leaked draft opinion in the Dobbs case and what it stands to signal for the future of Roe and Casey.
S4: So the leaked opinion, I think, is not a surprise to those of us who have been watching the court. I think it was expected after the December oral arguments in this case that the court had a firm five justice majority to overrule Roe versus Wade and Planned Parenthood versus Casey, which are the two pillars of the court’s abortion jurisprudence. But I think what was surprising was, one, the fact that the draft opinion was leaked. This is a draft from February. It’s now April. Ostensibly, there may have been many drafts exchanged, but this draft, this initial draft was released that is highly unorthodox and very, very surprising. But also surprising, I think, was the utter absolutism of this particular draft opinion. So this is a very extreme draft opinion. This opinion could be written in lots of ways that the chief justice was offering some opportunities in oral argument for a majority to come together to uphold the Mississippi law, HB 1510, which bans abortion at 15 weeks, but to stop short of overruling Roe and Casey. And he didn’t get a lot of takers for that. But that would have been one way. There also could have been a way to write this that was just a lot more narrow and more moderate. But the tone of this opinion, the rhetoric is caustic, it is aggressive, it is extreme. And not only does it eviscerate Roe and the abortion. Right, it also makes clear that the problems that the majority identifies with Roe, that it is unmoored from constitutional text, that it is unrooted from historical traditions in the United States, that it is a constitutional apostasy. The same kinds of arguments might be made for other rights, like same sex marriage or interracial marriage or contraception. And so what you see in this opinion is a valiant, although somewhat disingenuous effort to say this is limited to abortion, but lurking on the sidelines and in the margins of this opinion is a blueprint for these other kinds of rights that have the same infirmities the court has identified.
S1: And I do want to get back to that, Melissa, because there is we have Justice Alito’s explicit promise that he is committing the decision to Roe in Roe only. And he says it’s because, unlike all those other rights, this involves the taking of life. And I want you to help us understand why we maybe shouldn’t take him at his word. But I want to turn to you for a minute, Susan Matthews you’ve been down the rabbit hole for weeks, months, years on how we got to Roe in the first instance. And one of the things I think you’ve researched so deeply and this also shows up in some of Jessica’s reporting, too, is how we got to this place. We’re at a moment now where every confirmation hearing is an all out referendum on Roe v Wade. It’s, you know, a death match. We now have Donald Trump, who promised explicitly he was going to seek justices who would overturn Roe. He gave us their names for the first time in history, this polarization that we have around Roe and how we talk about ROE. Can you help us understand how this polarization, how this almost singular, myopic obsession with Roe was not at all the lay of the land in 1973 when it was decided?
S3: I think the most interesting thing that I was kind of attracted to in this story, you know, now when you talk about Roe, it feels like it’s such a divide. You know exactly where you stand. You know where everybody else stands. It’s almost impossible to have a conversation. But when I started looking into this, one of the things that I thought was incredibly interesting is that before Roe is actually passed, there was a Gallup poll in 1972 that, first of all, showed that about two out of every three Americans supported liberalizing abortion laws. They thought that a right to an abortion should be between a woman and her doctor. So that’s one thing. And that has stayed pretty consistent even since then. But additionally, Republicans actually supported the right to abortion at a higher rate than Democrats did. There are a few reasons for that. One is because a lot of the early opposition to abortion, even before Roe was not organized around politics, it really came from the Catholic Church, the Catholic belief that life starts at conception. And a lot of Catholics were working class Democrats at the time. And a lot of Republicans were really deeply invested in small c conservativism. They were not interested in the government having to legislate this. They were hearing from doctors and and from women about what was happening. And they kind of thought that this was the realistic approach. Another interesting factor just of this time period is that it’s the late 1960s and early 1970s. Overpopulation is a big concern. There’s a lot of Republicans who are quite concerned about that, and in some unsavory ways, we don’t have to get into that quite right now. And the last thing that I kind of want to say about this is, you know, I’ve been doing so much work looking at the life and jurisprudence of Justice Harry Blackman. And I just want to point out that he is appointed to the Supreme Court by Richard Nixon and he’s actually the third candidate for the job. And the first two who are put up don’t make the cut because the standards were quite high and in a totally different way than they are now. This was going into the court that was kind of on this progressive streak, and the Senate was really testing them in a totally different way than it is now. And I think that Justice Blackmun coming in with that situation really made him approach this case with so much nuance and carefulness and historical research. And he really wanted to resolve this issue. He thought that he could resolve this issue and he wanted to take perspectives from both sides and incorporate them in the opinion. It’s another thing that’s really telling about our politics. How much the way that he was framing it at the time has been changed to this is radical, you know, justices doing legislation because that was not the case at the time.
S1: Jessica in a deep way. This panel has to be called the Jessica Show because of your really magisterial and I think very prescient piece in the Atlantic that was called The Future of Abortion in a post Roe America. It is a really definitive commentary on what’s coming next, and it feels like it answers so many of the questions that I have about what’s coming next. Can you just give us five full minutes on what you learned about medication abortion, about abortion funds, about the sort of patchwork of underground abortion action that’s coming and how this is going to play out.
S6: All right. I’m ready. Let me know when I hit five, because I could probably yammer on this for way too long. And thanks for having me and for the kind introduction. Well, it came up even in the the preview for slow burn that. We won’t go back. We won’t go back. One thing that came up in my reporting is there are some ways in which we actually can’t go back. And part of that is because science has advanced. And the most important thing I should tell you about that is we’ve got abortion pills and a lot of people in the U.S. actually don’t know what they are, which is amazing considering that in 2020, 54% of abortions on record were accomplished with abortion pills. Meanwhile, we’re at a point where so 90% of abortions in the U.S. are in the first trimester. That’s when these pills are used and they are becoming increasingly popular. Also, they allow people to have an abortion in the privacy of their own home. And so I’d love to introduce you to them. This is mifepristone. Mifepristone is known also as RU486. It’s the French abortion pill. This little hexagonal creature is my surprise title, also known as Cytotec. It was originally created to help people with stomach ulcers. So when we talk about abortion pills, most people are actually talking about those two different pharmaceuticals. The way they work is mifepristone is essentially a progesterone blocker. That’s one of the hormones needed to maintain a pregnancy. And my surprise still induces cramps. The back story there is that it was introduced in Brazil in the eighties and the women there were very creative and saw on the label that people were not to take it if they were pregnant because it could induce cramps. Lo and behold, some people did not want to be pregnant and discovered that it was a potent abortifacient. So today the combination of pills is FDA approved for ending pregnancies up to ten weeks. And the World Health Organization, meanwhile, is a little less conservative. They have protocols for using them up to 12 weeks and even after that. So how do people get the pills? What do they do with them? Before the pandemic, there was a rule federally that for Mr. Preston, one had to actually go to the doctor and take it in front of the doctor, which doesn’t make a lot of sense, because when you take it, nothing happens. It’s not like you grow a third head. It’s not like you have an abortion on the spot. It’s a slow process, so people had to go and take it and then they were given the rest of the pills to take home. That restriction was lifted during the pandemic. It was briefly reinstated, but now it’s gone for good. This led to a flowering of telemedicine startups all offering the pill, many of them with video consultations. So now. Depending on where you are. There’s a great website called Plan C pills dot org and you can put in your state since we know this is all going state by state and that that’s even been happening before. Roe. And figure out how to get them for the Atlantic Story. I ordered them from Aid Access, which is a group based in Europe. They actually send them to people in all 50 states, even in states where they’re already restricted because they are out of our jurisdiction and they also supply them for what’s known as advanced provision. Some of our viewers may have read earlier today that people are stocking up on pills while they can just out of concern. And to the best of my knowledge, I think other people are trying to start offering them for advance provision. Aid access will actually offer them to people as kind of a break under glass sort of thing. So that’s what’s going on with that. But even before this decision comes down, medication abortion has really become one of the hottest fronts in the fight over control, over women’s bodies. We know that in the first three months of this year, more than 100 restrictions were passed on medication in the states. That’s part of a much larger picture, where more than 1300 state restrictions have been passed on abortion since Roe versus Wade. It’s kind of death by a thousand cuts in that many places. I spoke with activists and they said like, look, Roe might as well not be the law of the land here already because the issue is access. So, for example, you tell me, just you can go to the moon, the great. I’m so pleased that I have the freedom to go to the moon. But if you’re not getting me a ticket, I am staying in my seat. Right. So it’s the same thing we have for that reason, a very strong grassroots of abortion funds. There are more than 90 of them in the U.S. and they do the roll up your sleeves work of helping raise money for people who can’t afford pills or procedures. We know that since 1976, the Federal Hyde Amendment has made abortion funding ineligible for you can’t get it through federal Medicaid. Basically, it’s not supported. So abortion funds are amazing. I know everybody saying donate to Planned Parenthood, but abortion funds are kind of the unsung heroes that are also always short on resources. So we have the grassroots, the people who have kind of grown up in the cracks because Roe has been gutted so badly already by all of these restrictions. And then we have the underground. The underground is people basically doing a lot of different things extra legally is what we’re talking about, whether that’s the activists I spoke with who mailed pills to a 13 year old who was pregnant and did not want to be in Texas. On the eve of the ban, women in Mexico offering to bring the pills over. My surprise pills available over the counter there and cytotec so people bring it in again. It’s going to be a patchwork like it is now and people can afford to will be going to other states. I spoke to somebody who was bullet proofing vans to bring them to the borders of hospitals state so we can get into the diaspora there. But but I should probably stop and rant.
S1: It’s really useful to hear what you’re saying just because one of the most enduring lessons I had this year came on my podcast when Professor Kathryn Francie reminded me that the day after Roe Roe was not the law of the land, that since there’s been a Hyde Amendment, that since there has been huge, huge amounts of restriction that have burgeoned in recent years. The fact is that Roe was a paper right for an awful lot of people, particularly the folks that you’re describing in this sort of desert area of the country where it has been actually not a real right or a meaningful right or an achievable right for a long time. Melissa, I do want to turn to you with another tricky legal question, which is just this. It seems that Justice Alito’s opinion in what may or may not become the final Dobbs opinion is it pains to say we’re just returning this to the states? And that’s as far as it goes. This is very, very solicitous of Justice Brett Kavanaugh’s concerns that he voiced at oral argument when he kept saying This is the neutral principle things to do, we’ll return it to the political process in the States. But more and more we’re hearing that, in fact, states are not just going to ban abortion, but that we are going to see a creeping criminalization, not just of abortion, but of some of the things that Jess just walked us through, including popping pills in the mail. So I wonder if you could just help our listeners and our viewers understand that this is not quite as neutral or anodyne an action as simply returning it to the states. We may be looking down the barrel and by the way, we’re seeing cases all over the country. They show up in Justice Article two, where women already are being prosecuted for miscarriages or for obtaining pills for their kids.
S4: So I think it’s a really important question, Dahlia. And when this was mentioned and floated in oral argument in December, I remember thinking like, wow. This is incredibly naive. And to be fair to Justice Kavanaugh, he seemed to be suggesting that this had become so contested and contestable that there was no way to settle it in a reasonable way beyond moving it back to the states, which he viewed as, as you say, a neutral settlement that would return this to the political process where each state could make a decision for itself about what was appropriate for its constituents, reflecting the preferences of those constituents rather than the preferences of nine unelected judges. And I understand the appeal of that. But it also seems hopelessly naive, like we’ve already seen states like Missouri suggesting that they’re not content to simply restrict abortion within their own borders. They’re actually interested in influencing what other sister states may do. So Missouri has proposed making it unlawful for individuals to leave the state to get an abortion, and more importantly, making it unlawful for anyone to help them leave the state to do so. Which, you know, I think raises a flood of constitutional questions about the right to travel, the dormant commerce clause, perhaps even First Amendment challenges, if, in fact assistance is donating to an abortion fund in another state that transports people outside of the jurisdiction to seek abortion care. So the idea that this would settle conflict, it actually, I think, will accelerate. It’ll just be a set of new conflicts that we have not really seen before in our jurisdictional conflicts. And Rachel, Rebecca, David Cohen and Greer Donnelly have a fantastic paper coming out of the Columbia Law Review that outlines what these kinds of inter jurisdictional challenges might look like. But the real question, I think, is the acceleration of the mood or the tone. It’s one thing to have civil restrictions on abortion like waiting periods and the requirement of an ultrasound. It is quite another thing to make it either a criminal penalty or some quite meaty civil penalty to provide an abortion or to assist someone in doing so. And so I think we’re going to see an acceleration of what the tenor of regulation looks like, and that too will be significant. A lot has been said about the fact of trigger law. So there are, I think, about 13 states currently that have on their legislative books draft laws that will go into effect that criminalize abortion as soon as the court says Roe versus Wade is overruled. Some of those states have had slow. Oklahoma just last week was talking about like they would have a trigger law, but they would amend it so that even if the court did not completely overrule Roe versus Wade, the trigger law would still go into effect. So even a partial overruling would set that in motion. And then there are a number of states like Michigan that have what I call zombie laws on the books. So in 1973, when Roe was announced, not all states repealed their abortion laws. They just sort of sat on the books in a sort of state of destitute, unenforced, but still there. And if Roe is overturned, they, like zombies, become revivified and can be used against individuals in those states, whether it’s pregnant persons or doctors. But now I think we’re going to see a lot of challenges. Doctors are going to have licensing issues. There’s going to be litigation and legislation around that. There’s going to be criminalization, litigation, legislation around that. And then the whole question of what it means to assist someone in doing so. So this settles nothing to say. So I think is really fatuous and disingenuous.
S1: And let’s add one layer to that, Melissa, which I think is implicit in what you just said and I think actually baked into the Missouri law. But also in addition to these new criminal penalties, we’re seeing this uptick in citizen bounty conscripting citizens to become part of the law enforcement regime. So we’re not simply talking about new criminal laws. We’re talking about telling on your neighbor sometimes for money. And that becomes a part of the legal regime that’s used to enforce this.
S4: Elena Kagan referred to the architects of this Texas bounty scheme as some geniuses. It’s incredibly devilish. It’s managed to stymie any hope of challenging the Texas law in federal court. But I actually think there’s a longer game if there is national legislation prohibiting abortion. And the conservatives have already indicated that this is not going to be a state by state settlement. They’re going to push for a national solution. If you have recalcitrant blue states who are like, Yeah, it’s on the books, but our people just aren’t enforcing it. Now, you have deputized all of these watching neighbors. I mean, I think actually that is the sort of hidden aspect of this that we haven’t even contemplated. It’s not simply that in red states you have all of these watchers doing this, and it’s for the purpose of avoiding federal court litigation that would shut this down. It has this after effect where if. There is some broader national scale. We’ve actually deputized and created an enforcement force of citizens. Even if states are more reluctant to do so.
S1: And I want to turn to you, Susan, because I think Melissa just made a really important point and I think just heated up, which is anyone who thinks this is a red state blue state issue is not entirely correct. This is going to have implications from the narrowest, most trivial. You’re going to have a longer wait at your clinic in Maryland because people will be traveling, but also because we are looking at federal enforcement strategies, whether they are mail interventions or whether they are bans on travel. So this is not a kind of well, this isn’t my problem problem. But I did want to give you a chance to respond. And I know this came up in research for slow burn. There is another way of looking backward in which we like to say, Oh, if Roe had just been better drafted, it needed to be written better and then we wouldn’t be in the boat we’re in today. And you’ve already teed this up. When you said Justice Blackmon was so meticulously careful, he thought, to get everything right here. But what do you say when people offer the critique that, oh, if they had just rooted this in something stronger, why isn’t it lashed to the equal protection clause? Damn it, Susan, fix roe so that this didn’t happen this week. What’s the answer?
S3: Everyone has a reason or a theory of how they could have decided Rose that this protection would actually be stronger. There’s this whole idea. If anyone knows anything about Roe, it’s that it’s grounded in privacy. And privacy isn’t really a great grounding for this, right? This right is too important. And I think that this has been such an interesting thing to watch people say, because, first of all, I think that if you look at Justice Alito’s opinion like this is obviously not about the practice of law. It’s not really about the interpretation of of the Constitution. It’s about going backwards in time. But more importantly than that, I actually think that we have done ourselves a disservice in the way that we’ve talked about privacy. It’s grounded in privacy because the privacy aspect of the 14th Amendment that they’re building on is something that was being built on in that time in the Supreme Court’s jurisprudence. So it was like the most likely place that they were going to continue this. And Sarah Weddington, who argues Roe in front of the Supreme Court, knows this. She offers it amongst her arguments. But I also just wanted to say, is that when you talk about it within the bounds of privacy, within the idea that this is a decision that a woman makes with her doctor, it kind of has this element of being like a little bit shameful and it doesn’t sound like a very strong. Right. But when you think about the 14th Amendment, it’s about family autonomy. It’s about how to construct your family in the way that you want. And it seems impossible to me to argue that you cannot have control over that and you can have liberty and life and happiness under the Constitution. So the thing that I have come to is really feeling like when we say, oh, privacy wasn’t the right thing and oh, I could have decided Roe better and it could have been stronger. I don’t think that there was a legal reasoning way where this was not going to blow up into the fight that it became. But I also think that there’s a way that we can think about this ruling and how it was grounded and actually understand that as a really deep, fundamental right.
S1: And Jess, can you talk for a minute, if you would, about I’m sure you’re getting a million fold the questions that the rest of us are getting about what’s the best thing to do? Who do I support? Who do I help, what am I meant to do? And my snippy answer tends to be Invent a time machine, go back three years, care about the composition of the Supreme Court. But that’s not super helpful to our viewers and listeners. What are you telling folks who really, really feel as though they’re looking at a juggernaut here? And if what you were saying in Melissa is saying it’s going to get exponentially worse. What are you telling folks to do?
S6: Yeah, well, I do think actually your time machine thing isn’t that bad, because I do think we need to remind people to vote and we do need to remind people that this is a long game. I think everybody’s adrenalized right now and in kind of fight or flight mode. And people have seen this coming for a very long time. And again, Roe has essentially not been the law of the land for a lot of people in many areas of the country and in many communities. Often the people who are most marginalized when it comes to getting medical care in general. So looking at it, I did mention abortion once before, and I don’t want to just keep beating that horse, but it’s it’s so important. And if you look at the website for the National Network of Abortion Funds, they’re all over the place and they’re local and they’re grassroots and they’re doing the work. People also volunteers, clinic escorts to help patients get passed. PROTESTERS There are just all sorts of things. And again, those funds are a great way to reach out, repro justice or. Organizations are always looking for volunteer help. There are tons of places where one could donate if one were so inclined. There’s a really cool organization called If, When, How, and they are all about basically protecting people who are involved with self-managed abortion. So they have a defense fund for that. They have a helpline for that. People can call them up. So I would urge people to look past the headlines and the big names and look for the people who are in the trenches and maybe less recognized that way because many communities have them and they need support according to the network. I believe in 2019 they were only able to field 25% of the calls speak out because they’ve always been under resourced and that was before this. So, I mean, basically, the house was on fire already. Gasoline has been poured on it. But there are things you can do to show up with a bucket if you want.
S1: And Melissa, you started with this and then I redirected us. But I do want to land on this because you pointed out anyone who thinks that this is limited to Roe v Wade and Casey is kidding themselves. And that bucket that Susan referenced of unenumerated rights, substantive due process, those rights of familial privacy, autonomy, the ability to raise your children, have your children, send your children to the schools that you choose. All of that stuff is sewn in the same ground as Roe v Wade. And it is certainly all the stuff that Justice Alito barely addresses in this monumental 98 page opinion doesn’t have a lot of time for those unenumerated rights. The anti-miscegenation laws in loving Griswold versus Connecticut, that’s contraception. Obergefell marriage equality. So when Justice Alito tells us, don’t worry, we’re going to pull out the Jenga piece that is Roe and Casey, but everything else stands. Do we take him at face value?
S4: I mean, he’s obviously someone who has never played Jenga. So there’s that. Yep. Let me just first say, this whole unenumerated rights versus textual rights, that is kind of the spine of this opinion. Again, I mean, conservatives love talking about the fallacy of unenumerated rights until they want to defend executive privilege or qualified immunity, both of which are not explicitly mentioned nor protected in the Constitution. So if we’re going to be consistent about this, let’s be consistent and not itinerant. If you don’t like unenumerated constitutional principles, then don’t like all of them, not just this one. That’s my one hobbyhorse. I have more. The other thing that needs to be said here, the idea that unenumerated rights are somehow our constitutional apostasy is really divorced from the text of the Constitution itself. In his opinion, Justice Alito speaks of text based rights, and he speaks specifically of the first eight amendments as though there aren’t other amendments, including two other amendments in the Bill of Rights Amendment, including the Ninth Amendment, which explicitly says just because we’ve enumerated something doesn’t mean that that exhausts what is available for protection here. Like there might be more. And the fact that we didn’t write it down doesn’t disparage the existence of those other rights. So that suggests that there could be implied rights and indeed there have been implied rights. Justice Alito, in this opinion, says that the 14th Amendment says nothing about abortion. It doesn’t say anything about marriage, does nothing about contraception, parental rights, none of that. My colleague at NYU, Peggy Cooper Davis, wrote a marvelous book many years back, Neglected Stories, The Constitution and Family Values, in which she provides primary source material that makes clear that the drafters of the 14th Amendment were consciously trying to repudiate the institution of slavery and also all of the vestiges of that institution, including the fact that enslaved persons lacked family integrity. Their families could be sold from them, their children could be sold from them. They weren’t allowed to marry. They had no bodily autonomy. They could be sexually compromised by an owner or mated with another slave for the purpose of reproducing the slave population. And so the 14th Amendment’s guarantee of liberty, Peggie argues, was meant to address all of those things, those liberties that were absolutely denied to individuals who were enslaved. And so when Justice Alito says the 14th Amendment was about repudiating slavery, he’s right. He just misses what repudiating slavery actually means. So I don’t buy this unenumerated rights versus text based rights fallacy. And third hobbyhorse for me is this idea that you can sequester the question of abortion because abortion, quote unquote, destroys potential life and that somehow does not imperil these other rights like same sex marriage, interracial marriage, contraception. That is absolutely nonsense. And he’s disingenuous to suggest it and he knows he’s being disingenuous. You see, those same rights are all undergirded by this right to privacy. If you tug on privacy in ROE. You are tugging on all of them. And even Justice Alito has made clear in his own writings that these things are inextricably intertwined in the Hobby Lobby decision from 2014. He argued that certain forms of contraception like IUDs or the abortion pill protocol that just was describing those two are abortifacients because they destroy potential life by preventing it from being implanted in the uterine wall. So it’s how can you distinguish between the abortion that destroys potential life when you’ve already said that these other forms of contraception also do the same thing? How can you distinguish between the unenumerated right of abortion and the unenumerated right to marry a person of the same sex? You can’t. And he knows that. So he’s saying this now. But in that opinion, there is an entire blueprint for eventually coming back to these other rights. And in fact, if you look at it, it says that when legislatures make these decisions, reviewing courts have to accept them because they have to respect the judgment of state legislatures on issues of social significance and moral substance. What could he be talking about other than abortion, contraception, marriage? These are those issues of social significance and moral substance. And he knows that it.
S6: Can I can I share a little thing with you that I didn’t get to talk about anywhere else that I just did? You know that enslaved people used cotton bark as an abortive fashion? I just think that is such a powerful symbol because it’s also the cash crop that is being produced on their backs. And for me, it’s this little glimmer in this incredibly draconian picture of people having no autonomy and and finding the crack that lets daylight in any way.
S4: Well, Peggy Cooper Davis talks about this in her book. And if you have not read this book, Neglected Stories, the Constitution and Family Values, you should. And she just published an op ed in The Washington Post yesterday building on this literature that she has put together over many, many years of a stunning, stunning academic career. And, you know, she’s right. And it’s such a rebuke to those who argue that the 14th Amendment is about slavery. It’s not about women, it’s not about abortion. And she’s like, it’s about all of these things because slavery was about all of these things.
S3: Yeah, it’s it’s really about the people who are left out of the original Constitution. So the whole framing of how Alito started that opinion, I mean, I think it’s interesting. And I think that the thing about the actual draft opinion that we’ve seen is just that it is it is shocking. It’s not surprising that they’re going to overturn Roe versus Wade. But Dahlia and I have been talking amongst ourselves for years saying the Supreme Court is never going to write the words. Roe versus Wade is overturned. So how do we explain this to our readers in a way that actually explains what’s going on? And, you know, just as as you’ve said, there are so many places where Roe is essentially not the law of the land anyway. But this opinion in particular to me felt so shocking in the way that it talked about it, in the way that it talked about how the original decision wasn’t a reasonable piece of jurisprudence at all.
S4: So if in fact, this is just a draft and there are subsequent drafts and maybe this has become more tempered and maybe a compromise has been reached that doesn’t actually overrule Roe. I hope we take from this that we are not in the clear because this has been going on for ten years. Every time there’s an abortion challenge, everyone waits with bated breath and they whittle away the right. But Roe still stands, and it’s basically a Potemkin village at this point. I mean, it’s literally desiccated in front of us. We need to just like believe them the first time this draft opinion is believe them the first. I believe them when they show you who they are.
S1: I wanted to ask if I could. One more question. And this is a grab bag that any of you can take. There is a race valence to this opinion and to this long history. Melissa, you’ve written about it extensively and language in here. That is a love letter to Clarence Thomas and eugenics that you’ve written about extensively. There’s also a religious valence throughout. I think Susan started talking about the ways that religion shaped this debate, but it’s everywhere and nowhere. And so I want to give one of you, you can raise your hands a chance to talk about how this is all about religion and not. And then I want to give Melissa a chance. Maybe you’ll go first, Melissa, to talk about how this is all about race. Melissa, go ahead.
S4: So one of the most important footnotes, I think, in this draft opinion as a footnote that is essentially, as you say, a love letter to Clarence Thomas, Justice Thomas in 2019, in a shadow docket, opinion court box versus Planned Parenthood of Indiana and Kentucky. Wrote that abortion restrictions, including trait selection restrictions. These are laws that prohibit abortion if it’s undertaken because of race, sex or because of the diagnosis of a fetal anomaly, that these are nothing more than the state’s modest attempt to prevent abortion from fulfilling its, quote unquote, eugenic potential. And then he sets out to craft law office history in which he basically grasps the history of abortion on to the history of birth control. And he argues that Margaret Sanger worked hand in glove with the genesis of the 1920s to cite family planning clinics in black neighborhoods, ostensibly for the purpose of stamping out black reproduction and limiting black political power in the body politic. And again, there’s so much wrong with this. Like the history is selective and cherry picked. It really fails to see the eugenics movement for what it is like. Eugenicists were not actually interested in abortion. They were actually interested in stopping non-whites from coming into the country, stopping non-whites from marrying whites and stopping white people who were not living up to the standards of whiteness from having children. And their preferred method of reproductive control was actually sterilization, which later in the 1960s got repurposed against women of color who were often on public assistance. That entire history is completely absent from this fuck up to history that Justice Clarence Thomas has concocted. But it has had legs and it lives in the lower federal courts, where many of Justice Thomas’s former clerics parrot it back and various opinions. And it has gotten a new lease on life in this footnote, and it will surely be raised up like a zombie, if you will, in future opinions dealing with abortion. So get ready for the racial justice aspect of abortion, because that’s what that says. Abortion is actually the racial injustice and opinions like this one that overrule Roe versus Wade. They’re really about anti-discrimination and racial justice.
S1: And same question to you quickly, Susan. Can you talk a little bit about how religion figures into this? And then we’ve got amazing questions that I want to get to.
S3: Yeah, I think that your point that it’s everywhere and it’s nowhere is the thing that I would say when I’ve been looking at the opposition in 71 and 72, it’s so clearly comes from a very deeply held religious belief that life begins at conception. We know that. We know that that is is kind of the mantle has been brought up. But the thing that I have found that is interesting, you know, in my work at Slate, I work on jurisprudence, but I also work on science coverage. And the thing that has been so fascinating to me is watching how the people who are proposing that argument are actually very much putting in a lot of effort to shroud that argument in the clothes of science rather than religion. And I think that that is something that has been really, really instructive to me. That’s our whole second episode of this series. And and diving into that world has been, as you know, quite, quite an experience for me. And I’m going to leave it there so we can take questions from our audience.
S1: So one question that we have that’s very specific is from an audience member asking whether Missouri has criminalized IVF. Is that true? Is it happening? Could it happen, Melissa?
S4: To my knowledge, Missouri has not criminalized in vitro fertilization. I’m could it happen going forward? I think it is likely to be. I think one of the things you need to understand about assisted reproductive technology is that it often results in the destruction of an embryo or fetal tissue, whether it’s through selective reduction of embryos, of multiple embryos or implanted, or simply the use of fetal material on the embryonic material. So, you know, that is in the offing, I think. And the logic of this opinion, I think, does not dissuade anyone who is interested in pursuing that from doing so. So I can’t underscore enough like our fates are intertwined. This is not a woman problem and it’s going to be a problem for women. It’s going to be a problem for women of color. It’s going to be a problem for the LGBTQ community. It’s going to be a problem for anyone who uses assisted reproductive technology for family formation. And so, again, our fates are intertwined.
S1: We do have audience members who are asking, why was this opinion leaked? And I’ve been very, very grumpily saying on every space I can that to talk to too much about the leak is to distract from what is actually happening. But I guess it’s worth speculating for a minute if you all have thoughts about and this is an extraordinary leak by every metric, a 98 page draft document authenticated by the court, thoughts on how it leaked and why.
S3: I’m going to just go ahead as the non-lawyer on this panel and say that I would just very much agree with you, Dahlia, that the league is extraordinary in a lot of ways. It says a lot about where our politics are. There are a lot of theories of which side it could have come from and which side it’s trying to to guarantee. But the thing that has been. Amazing to me with the leak is the intensity of the opinion that I think to some extent has woken people up. I just think that speculating over the leak and why is less important than the fact that I think many of us who have actually been watching what has happened, anybody who actually listened to the arguments in Davos basically knew that something like this was coming. I think it’s kind of amazing that it took a sensationalist leak to get people to get out in the streets to protest. And I think that’s kind of what I want to say about that.
S4: I agree completely with Susan about that. Why we haven’t had people protesting in front of the Supreme Court from December to now is a mystery to me. But I actually think the leak is important, not just the sensationalism of it, but what it says about the court and its dynamics. And and I think it is related to the absolutism of this opinion. There are lots of theories. I happen to subscribe to the theory that this had to be leaked from someone in the conservative camp, because I think the absolutism of this opinion probably prompted at least one justice to be like, whoa, like, I wasn’t ready to go this far this fast. Like, you want to drive a Tesla, Sam? I would prefer to be in a Dotson, and I think maybe someone said I’m going to jump ship and defect, and they were about to lose a majority. And so with that, it could be the case that someone dropped this opinion for the purpose of making clear what the original conservative position is in case the actual final opinion is more moderate, more tempered. That will certainly gin up some ire against the wobbly conservative who reneged on the full promise of what could have been. Or alternatively, I think this is the more intriguing perspective. It could be a way of lashing that wobbly conservative to the mass and keeping him on side for this very absolute opinion, because you’ve basically made clear what that opinion is to the public. And then I think some ancillary benefits. You’ve normalised the outcome. Like if it’s less extreme than this, we’re going to have media news outlets saying that this is a victory when it’s obviously not a victory, but it does normalise what could have been and perhaps lays the foundation for people being happy in June.
S1: We have hit our time here and there is so much to talk about and I am really honored and humbled to be with Susan Matthews, with Melissa Murray, with Jessica Bruder. Each of these three panelists has been doing yeoman’s work to make visible something that, as I think we’ve all agreed here, was already a five alarm fire long before this week. So I want to thank all of them for joining us. I want to thank all of you who joined us today and the good folks questions, hard questions to our panelists. I want to thank Crosscut for inviting us to be here and to have this incredibly timely discussion. And to our amicus listeners who tuned in also, I think, really wanting to know context and scope and what to worry about and what to do. I think we got a lot of that. Please, please, please join me, friends, in thanking this amazing panel and Crosscut for bringing us together. And that is a wrap for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your questions. You can always keep in touch at Amicus at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. With thanks to Crosscut. Alicia montgomery is executive producer of Slate Podcasts, and we will be back with another episode of Amicus in just over two weeks. Until then.
S7: Hang on in there.
