S1: This ad free podcast is part of your slate plus membership.
S2: I know your interest here is an abortion.
S3: It’s really about whether women have equal status in our constitution.
S2: What constitutional right protects the right to abortion? People can protect an unborn girl’s life when she just barely can survive outside the womb, but not any earlier when she needs a little more help. Is it privacy? Is it autonomy? What would it be?
S3: It’s liberty.
S4: Your honor is your interests anything but a religious view?
S5: This is a radical new way to think about what it means to be a people governed by limits on government that some people enjoy greater freedom and equality than others do.
S1: Hi and welcome to Amicus, this is Slate’s podcast about the law and the courts and the Supreme Court. I’m Dahlia Lithwick, that’s my beat at Slate. This past Wednesday, the highest court in the land heard oral arguments in Dobbs V. Jackson Women’s Health. That’s the third abortion case it’s heard in five years. This time, the court wasn’t fiddling with state clinic regulations. This time, the state of Mississippi has chosen to prohibit virtually all abortions after 15 weeks of pregnancy. This is a pre viability ban. It is absolutely in violation of Roe v. Wade and Planned Parenthood vs. Casey. And that’s kind of the point. Mississippi waited until after Justice Ruth Bader Ginsburg had died. Justice Amy Coney Barrett had replaced her to ask the court for what it was really seeking all along the end of Roe v. Wade. The arguments, some of which you will hear on the show this week, lasted for two hours, and they left little doubt that at minimum, the court is inclined to permit the 15 week ban from Mississippi, but that it also may be willing to completely overturn Roe v. Wade. It would be the first time the court overturns a case granting broader rights rather than curtailing rights, and millions of people would immediately lose the freedom to terminate their pregnancies. Today on the show, we’re going to talk to Julie Rikelman, who argued the case at the court on Wednesday. Julie represented Jackson Women’s Health. That’s the only clinic left in Mississippi, a state with among the worst infant mortality and maternal health rates in the nation. And then Professor Catherine Franke from Columbia Law School is going to join us to help us understand what’s so different about the Dobbs argument and the justices open positions this time and what that tells us about what else is at risk with the new conservative supermajority at the court and to explain why a fight that is, as Justice Sotomayor put it at argument fundamentally, really a religious one is still taking place at a secular court later on in the show. Slate Plus members will have access to my conversation with Slate’s Mark Joseph Stern, who is joining us to discuss the ways in which the three liberal justices handled arguments and also to preview another religious liberty case that is coming before the court next week. As we turn our attention to the arguments in Dobbs, you’re going to hear a lot about Roe v. Wade. That was the court’s landmark 1973 decision to locate a woman’s reproductive freedom in the Constitution’s guarantees of liberty and bodily autonomy, and the right to make private decisions about one’s family after Roe abortion decisions before viability. That’s when a fetus can survive. Outside the womb was set at about 28 weeks. You could regulate a pre viability abortion, but they could not be banned in 1992 in Casey, faced with an opportunity to strike down Roe. The court actually permitted several new regulations to be put into place to regulate abortion, but held fast to the viability line, which it now said at about 23 24 weeks of pregnancy, which is about where physicians still draw the line today. The disputed Mississippi ban would prohibit abortion after 15 weeks, completely annihilating that line. My first guest is Julie Rikelman, who, alongside the new U.S. Solicitor General Elizabeth Prolonger, argued for reproductive rights and liberty at the court. Julie is senior director of litigation at the Center for Reproductive Rights. In March 2020, Julie argued the center’s June Medical Services vs. Russo at the U.S. Supreme Court, in which the court agreed with her position and struck down a Louisiana law that was designed to restrict clinic access. She earned her bachelor’s and law degrees from Harvard after a fellowship at the Center for Reproductive Rights. Julie worked as a vice president of litigation at MVC for five years before returning to the center in 2011. Julie, it’s been a week. Thank you so much for joining us on the podcast.
S3: Thanks so much for having me.
S1: So I think I just want to start by asking You had only just argued June Medical. I feel like it was a minute ago. And suddenly you’re back in the court and you’re arguing another abortion case. We used to get one every ten years. I guess now we get one every year. Can you just give me a sense of what was different, what was the same being in that chamber? COVID notwithstanding, I know people were masked, but what felt different and what felt the same to you?
S3: So yes, I had the last live argument that the Supreme Court did March 4th before COVID hit. So I left the Supreme Court and a week later, the world shut down. And so there were obviously a few things that were different. June Medical was a case about a regulation that would have made a tremendous difference in Louisiana by cutting off access to abortion. But it was about abortion regulation, a question the court had just considered it a few years ago. It was very focused on the facts and convincing the court that this case from Louisiana was no different than the case from Texas that had decided four years ago about an identical lot. So it was, in some ways, a relatively straightforward case. This case is just about whether Roe should be overturned. And so it was very, very different. The stakes were higher, but it was just it was much more about first principles and whether people think that women should have liberty and equality under the Constitution. And then, of course, the court itself was different. So there were different justices on the bench.
S1: One of the things that I found really striking both in your presentation and that of the solicitor general is how desperately you were both trying to center women. And it was a very strange thing to hear you trying to center, you know, the data in The Economist brief, you know, trying to center, you know, every single time there was an effort to say, it’s dangerous, it’s unhealthy, you know, you can’t force women to care. It got dragged into these orthogonal conversations about the legitimacy of the court. Or, you know, I don’t know at some point adoption. And I just, I guess, wondered, what did it feel like? And I know this is just a big, broad table setting question, but I just thought it was so deeply weird that you were both women trying to talk about women. And time and again, the response was like, but enough about women, let’s talk about the legitimacy of the court. I felt as though the thing that was the big woman sized hole at the middle of this argument was the thing you kept trying to come back to.
S3: That was absolutely one of my biggest goals, of course, was to make sure that the voices of women were heard at the court and were present there in the courtroom because the courtroom was largely empty. And so that’s what we really needed to do was to make sure that the impact of taking this right away, something you know the court has never done taken away a constitutional right after 50 years, the impact would be felt. And I tried both legally, but also, you know, I’m a mom, so I also know what I am talking about and so I try to emphasize. Every time that a justice would say, well, you know, if we change the law this way, is it really going to harm women to say absolutely it will harm women and pregnancy has unique physical demands and risks for women. Even just being pregnant changes your life. Having a child changes your life tremendously. All of these things change everything about your life, your family, your ability to have a job to just live in this world. And so I tried everywhere I could to bring that into the courtroom.
S1: It’s so interesting because it reminded me of Justice Ginsburg when she would describe her early advocacy when she was trying so hard to make a woman’s life visible to a court. Except at the time she was talking to courts full of men, right? And she was just trying to say, stop for a minute, walk in my shoes, see what a woman’s life was, and I really felt like that was bizarrely Roe in 2021. The thing you were trying to do again.
S3: It was very strange. And I think one of the things that was obviously very concerning is that Mississippi had suggested in its brief that women don’t need this right anymore. It’s OK to force them to be pregnant and give birth and have a child against their will because things are better now than they were 50 years ago. And so that was another major point that I wanted to communicate. Maybe some things have changed, but how could it be? How could it be any less important for women to be able to make this decision? How could it be any less critical that states don’t force somebody to be pregnant and to have a child that has nothing about that has changed, and that was another major goal I had in the argument.
S1: One of the moments that really struck me was you trying to bring The Economist’s brief and the and the data that showed that, I mean, beyond just the sort of mortality and health risks that simple equality requires women to be able to control their bodies. And I just want to play for you a tiny bit of audio. You’re trying to make the point about women and equality and the data that’s amassed. And Chief Justice Roberts jumps in.
S3: I would refer the court to the brief of the economists in this case, your honor. And it compiles data showing studies based actually on causal inference showing that it’s the legalisation of abortion and not other changes that have had these benefits for women in society. And again, those benefits are clear for education, for the ability to pursue a profession, for the ability to
S2: be putting that
S1: aside. And I guess they just want to ask you what, how strange it is that you’re trying to make a science based, fact based argument, a medical argument. And time and time again, it’s being sort of brushed off as though those are trivial interests.
S3: Yes, it was. You know, it was fascinating because one of the major criticisms that people have had about Casey was that when it had that critical sentence, that making this decision would be critical to women’s ability to participate in the social and economic life of the nation. And that was one of the reasons why the court retained the right, even though some of the justices and Casey said we may have decided it differently if it were up to us for the first time. But we recognize how important has been to women’s equality. People criticize that as not having sufficient support, not enough data that it was actually. So first, we needed to prove that it is important to women to be able to make this decision. But you know what? We proved that this time we have a brief by the leading economists in this country, Nobel Prize winners saying, Guess what? The data over the past 50 years is overwhelming. We can now do studies using something called causal inference that shows that it is actually abortion, not other changes that have caused these gains in women’s ability to finish high school college, to have gains in their earnings compared to men to get professional degrees to pursue careers. All of this, actually, we have data showing abortion legalization has made it possible. And that’s what I was referring to. So now we even have the data, but it still seems like perhaps, you know, that’s not going to be enough for everyone.
S1: And I’m going to ask you the question that I’m sure you’ve been asked 100 times, which is were you expecting this interpolation from the newest Justice, Justice Barrett with the sort of very, very strange analysis around the safe haven laws and the idea that because adoption is so much easier now, there’s no parenting burden on women. Was that out of left field to you?
S3: It wasn’t. It was an argument that Mississippi had made in its brief that these safe haven laws, which exist now are a critical difference and one of the reasons why it would be OK to overturn 50 years of precedent. And of course, you know, the first response is it’s always been possible for women to place a child up for adoption. There’s nothing new there. But the second responses that doesn’t take away all the burdens of forcing somebody to be pregnant and give birth, especially giving the alarming maternal mortality rate in this country and in Mississippi. But the third point which the solicitor general made and I wasn’t quite able to get to because I think somebody else moved me along, is that forcing somebody to make the decision? Whether or not to give a child up for adoption is not a small thing. Even if you know the pregnancy in the delivery goes relatively uneventfully and you don’t have sort of lifelong physical consequences from being pregnant, which some people do. Absolutely. You can’t force a woman to decide whether or not to give a child up for adoption. So it wasn’t an unexpected question. But again, it’s concerning that it just doesn’t really reflect the reality of what it would mean to take this right away from women.
S1: So, Julie, one of the points I think you were trying very hard to make is about the reliance interest, which is a prong of why you don’t overturn cases that people generations of people have come to rely on. It felt as though this was turning into a kind of split screen conversation where you were trying to say one thing and something else was the thing that was kept get bounced back at you.
S3: Yes, it was. It was really important for us to explain that, you know, taking away a constitutional right that’s been around for 50 years is going to be devastating for people, and it’s going to be devastating in so many different ways. So first, you know, both I and the street emphasize that one out of four women has made this decision. So there are actually people many, you know, hundreds of thousands of women who have directly relied on the right. But even for people who haven’t made that decision in their lives, so many of the rest of us are relying on the ability to make it if we need to in structuring our families and deciding what jobs to take when we’re going to get married, what relationships to enter. And that was really important to bring up to the court. And again, I just I do want to refer people to this economist’s amicus brief because it just lays out unbelievable statistics. You know that the fact that abortion has been legalized has increased the chances that people finish getting an education, the chances that they obtain a professional job, things that change the entire course of your life and the course of the life of your children. So this is critical for families. And so that’s something that I in the street kept trying to come back to, but it was concerning that it wasn’t getting as much emphasis as it really should be because of how critical this right has been to women and their families.
S1: And I think I do have to play for you the audio of very mystifying references to the Blackman papers because suddenly we were being told that. Justice Harry Blackman’s papers somehow have some controlling effect on the viability standard and its arbitrariness, so let’s listen for a minute. So if they didn’t
S6: say anything about typos, it’s like what Justice Blackman said in when discussing among his colleagues, which is good reason not to have papers out now that early is that they don’t have to address the line, drawing it all in Roe. And they didn’t have to address the line drawing at all in Casey.
S1: And I have to say not that much surprised me, but that kind of surprised me that now we’re rooting through judicial laundry lists and, you know. Trying to find evidence there to discredit the actual language of the opinion, what what’s that about, please?
S3: That is obviously concerning and doesn’t seem to be the kind of general rule that the court would want to follow for its decisions. I think the court wants lower courts and others to look at the decisions based on what is actually in them, not discussions that may have happened in the conference or in memos or in papers, a kind of legislative history that the court doesn’t actually look at in other contexts. So that was obviously not how we approach the issue of viability, which again, the court just said a year ago and June Medical is the central holding of that case. As I mentioned at the argument, the court talked about viability no fewer than 19 times. That was in fact what Casey was about, and the government had asked the court to discard the viability line and allow states to ban abortion whenever they wanted to. And the court said in Casey, No, we’re keeping the viability line. It is a principled line. It’s been workable and we need a line in order to protect this liberty for women. And that’s not unusual. The court draws lines all the time. You know, it’s drawn a line in the Fifth Amendment context that it has to be 14 days is that the amount of time that you need for a break in custody for Miranda warnings and you know, 14 days is a line. It doesn’t say 14 days anywhere in the in the Fifth Amendment, but the court understands that in order to protect rights, the court has to draw a line sometimes, and that’s what it did in case, and it was central to its decision.
S1: I’m really struck listening to you by the extent to which it felt like, and this again was so different from June Medical. It was so different from whole women’s health, Julie. It almost felt as though the project was just to blur everything, to make everything seem as though it had been sort of like pulled out of the muck of, you know, substantive due process. What is here? You know, Clarence Thomas was so emphatic over and over. We locate this right for me. I’m rooting around. I can’t fight. What are you calling it these days? And there it’s there was just this sense that all that which is, as you say, you may not like the viability line at 24 weeks. You may not like where it’s set. But the idea that everything is murky and ambiguous in the best way to clear it up is to just ditch it. All just felt like it was very much the project, almost, I think, across the boards to sort of say, I don’t even know what you’re talking about with this liberty interest. This is news to me. Am I overstating things?
S3: It was very concerning because again, liberty is in the Constitution. The Constitution textually, explicitly protects against state deprivation of liberty. And for over a hundred years, the court has said that that gives people certain substantive fundamental rights, including rights related to marriage, contraception and sexual intimacy, words that also don’t appear in the Constitution. But the court has been incredibly clear that the liberty clause protects those areas of our lives. And so, yes, all of it is is very well-established and very supportive of the decisions the court has reached on this right. And so it is concerning for the court to be just ignoring, in some ways its own decisions for the past 100 years.
S1: Julie, the last thing that I have been sitting with, I guess, I sort of touched on it up top, but I thought it was fascinating that somehow it became your responsibility and the responsibility of the Solicitor General to answer for the court’s anxieties about itself. And this weirdness of like enough about you. Let’s talk about us. We’re super worried about our legitimacy. Sue this make us feel better and help us do this thing that you know we want to do, but also look super legitimate. And I know. I mean, certainly, I think there was more questioning of that nature directed at Mississippi. But I do wonder how you sort of think about the fact that it seems to me that Casey was a long meditation on the legitimacy. I mean that in some sense, you know, one of the core things that Casey accomplished was this idea that you don’t willy nilly upset precedent, whether it’s reliance interests or whether it’s looking political or whatever it is. And so it again felt as though they were sort of setting the timer back to to Roe as though Casey hadn’t happened and then wanted you to make them feel better about the fact that the polling numbers are terrible. And I guess I just wonder, is there a way to navigate that where you’re not in fact, you know, talking the way Justice Sotomayor was talking about the sort of stench of illegitimacy and, you know, Justice Breyer talking about, well, I guess it’s just over for the court. But how is the way to think about that? That is sort of removed from what felt like kind of hysteria from the justices that was about their polling numbers, which is just not your problem.
S3: So I try to talk about that a little bit of the argument. But I think the general point, which Casey emphasized, is that a lot. There will never be universal agreement about all of the court’s decisions. That’s just not possible. There will be people who disagree, politicians who disagree, states who disagree. The court has never treated that as a reason to overrule its decisions. And you know, some of the other issues that came up that were discussed is general principles, the idea of neutrality that it would be neutral for the court to take away constitutional rights to take away this constitutional right? Well, that’s an argument that could also be applied to any constitutional right. And we wouldn’t say that it’s neutral for the court to take away other rights under the First Amendment or the Second Amendment or, you know, the right to marriage or other rights that are protected by liberty. That’s not neutral. And you know, the court, like I said, there’s disagreement with many of the court’s decisions. So it’s it’s there’s nothing unusual here. This rate has been around for a very long time. Some people may disagree with that, but that is true in just about every other constitutional context
S1: that forces me to play for you. The audio of Justice Kavanaugh talking about scrupulous neutrality because I think it really felt like the way he was going to pick his way through this legitimacy problem was to sort of pretend to both sides this thing. You know, we’re not going to take away the right. We’re not going to ban abortion. We’re not going to say there is a right to the middle position is clearly for us to, as you said, step back and leave it to the states.
S2: I think the other side would say that the core problem here is that the court has been forced by the position you’re taking and by the cases to pick sides on the most contentious social debate in American life and to do so in a situation where they say that the Constitution is neutral on the question of abortion. The text in history that the is neither pro-life nor pro-choice on the question of abortion, and they would say, therefore it should be left to the people, to the states or to Congress. And I think they also then continue because the Constitution is neutral that this court should be scrupulously neutral on the question of abortion. Neither pro-choice nor pro-life. But because they say the Constitution doesn’t give us the authority, we should leave it to the states and we should be scrupulously neutral on the question and that they are saying here, I think that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue.
S1: And I think you’ve just answered it, but it is deeply, deeply strange again to hear that posited as a neutral action. You wouldn’t say, Hey, we’ll just leave it to the states to figure out about Jim Crow. Or we’ll, you know, certainly the court didn’t want to leave it to the states to sort out the Second Amendment. So I’m not sure. Again, this felt like it was right on that seam of this didn’t seem like a rigorously thought out legal position. It felt like a little bit like political spin, like positioning,
S3: as I tried to say. I mean, that is the nature of a constitutional right is that you don’t leave it up to the states. So to say that it is neutral to let states take away people’s constitutional rights would just be factually inaccurate. That is the whole premise behind the Constitution that there are certain things that can’t be up for a political vote. Like you said, it wouldn’t be considered neutral for states to take away Second Amendment rights. And so it really does come down to the question of whether one believes that women have equal liberty, equal rights under the Constitution. And if they do, then it should be no easier to take away their rights than to take away other constitutional rights that we have. It’s really about whether women have equal status under our constitution.
S1: I just want to ask you a follow on to the Justice Blackman papers question, which was again from the same improbable source the chief justice who voted to strike down the Louisiana law in June medical, but also invoking the abortion laws of North Korea and China in oral argument. Now I’m old enough to remember that we used to not cite foreign law at the court because you’d like pull back a bloody stump. So two points, I guess, you know, you answered it in your answer in the court that that that actually was an inept comparison. And I want you to spin that out for us. But then I just want you to answer. The larger question about is, is that cool now? Do we get to do that?
S3: It can be helpful. I personally think if you’re asking me personally to look at what other countries with similar legal traditions as ours have thought about sort of basic issues of fairness and liberty and equality, those are basic concepts that makes sense. But, you know, generally when the court has looked at those concepts, it has looked to international comparative law. It’s done it to expand constitutional rights to understand that we increasingly recognize more and more people as having equality and having equal rights to liberty. And so that makes sense. But here, as I said, the comparison is completely wrong, and I think it’s it just points up that, you know, there’s been just a number of things about this case that have been reported that are just flat out wrong. You know that the way the state presented them, they just have it 180 degrees wrong. So the notion that the United States is an outlier when it comes to protection of abortion is just completely wrong. Canada has completely decriminalised abortion. Great Britain, it’s available up until 24 weeks throughout Europe, up until viability. And so that’s just wrong. And another thing you didn’t ask me about this, but I just want to mention, you know, the notion that there is no historical support for the right to end a pregnancy is just wrong. So women were able to end their pregnancies under the common law for centuries. So the notion that this is not rooted in any way, even at a very, very specific level in the history and tradition of the country is just incorrect.
S1: It’s interesting because we’ve done at least one, maybe two shows about the kind of stuff that creeps into amicus briefs that is never check to that then becomes, you know, the holding of the court and you have a real problem when you have completely a historic factual evidence being amassed and when you hear the justices repeating it, that was a really interesting moment because I can’t think of a lot of moments when an oral advocate has just said No Chief Justice Roberts, you’re just wrong about North Korea and China, and here’s why. But I think it is a real, real problem. This sort of fake news hashtag, well, fake news, hashtag, fake news that that stuff is kind of leaching into arguments. I think I have to just ask you this question because you started by saying you’re a mother and that having. Thought about this the way I think about it, you know, through the prism of miscarriages and through the prism of my own, you know, economic life and family decisions. The absence of women in this argument in some ways felt like it was being answered by the women massed outside, by the protesters outside, and I thought that one of the things that’s really different, Julie, is that women were listening in their cars. They were listening. Everyone I knew was listening. I got to say my husband has never listened to an oral argument in his life, and he was riveted. And I guess I wonder if you know, we’re in this funny new age where the court sort of having seemingly withdrawn in the time of COVID, is actually really available to people. And I wonder if that played any part. I know in that moment, like again, you’re just thinking about your argument. But if knowing that there were women standing out there say that they were broadcasting the audio, that everyone in the country and I would say beyond the country was listening to you somehow counterbalanced the fact that you were trying to make women visible to a court that didn’t seem to care.
S3: It’s a really interesting question. I mean, I I really do try to think of myself Dahlia as of just a very serious by the books lawyer. So I was really trying in the courtroom to do what I needed to do to focus on the law and the facts and the precedent and tell the court what was accurate. That was my main focus. But afterwards, when I heard about all the people who were listening in various places, I will tell you my favorite story, which is that my daughter’s class was listening to the oral argument while she was at school. So she sat in her classroom and listened to it with her teacher. How old is she? She’s 13. They were. They were playing in her classroom, and I had no idea that that was going to happen. I don’t think she knew that was one that was especially personally meaningful to me.
S1: I have to ask the obligatory follow up, how does she think you did? Was she proudest?
S3: She was very proud.
S1: Julie Rikelman is senior director of litigation at the Center for Reproductive Rights. She argued the Dobbs case on Wednesday at the Supreme Court. Julie, thank you immensely for your time being with us today.
S3: Thanks so much for having me.
S1: Our next guest today is going to try to help us stand back a little bit from the trees and see the larger forest, I have been trying for months to find the right moment to have Kathryn on the show. Katherine Franke is the James L. Dorr Professor of law at Columbia University, where she also directs the Center for Gender and Sexuality Law and is the founder and faculty director of the Law, Rights and Religion Project, a think tank based at Columbia, working on how religious liberty rights interact with other fundamental rights in 2021. Professor Franki also launched the Erie Project, a law and policy think tank, to develop research guidance and leadership on the Equal Rights Amendment to the Constitution. Her most recent book, Repair Redeeming the Promise of Abolition, published in 2019, makes the case for racial reparations. Kathryn Franki Welcome to Amicus.
S5: Dahlia It’s so great to be with you.
S1: And I think I want to start with the rather obvious, but somehow freakishly unspoken observation that the Dobbs argument that we heard this past week is emphatically about gender and abortion and also religion. But we only talk about gender and abortion and never religion. And so here’s some audio of Sonia Sotomayor. How is
S4: your interest? Anything but a religious view issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So when you say this is the only right that takes away from the state, the ability to protect the life, that’s a religious view, isn’t it, because it assumes that a fetus is life at when you’re not trying to cure? When do you suggest we begin that way?
S2: Your honor.
S1: And right after that, we have Justice Alito leaping in to say,
S2: Are there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception or at some point other than viability? I believe so. I mean, I think there’s a wide array, I mean of of people of kind of all different views and of no faith views who would reasonably have that view.
S1: There are secular philosophers and bioethicists who take this position. This isn’t about faith at all. So just as the big table sitting question, I guess I want to start there for an awful lot of Americans, Catherine, whether it is those who put unborn babies at the top of this decision, tree those focused on pregnant people and reproductive freedom. The debate about Roe and Casey is a religious conversation in most places, most of the time. And it’s such a religious conversation that, as the solicitor general said, it would be constitutionally intolerable if this was a religious conversation. So we have to swap it in secular language. And I’m wondering if you’ll just agree that so much of what is so fraught about this conversation is that we’re talking about a thing and we’re not talking about the thing that is really the thing that we should be talking about.
S5: Well, the thing we should have been talking about was women’s lives, which were painfully absent in so many ways other than occasional remarks from Justice Sotomayor, who at times I felt was channeling the absent 10th Justice Ruth Bader Ginsburg. But by and large, the arguments from every other member of the court and certainly from the Mississippi attorney general ignored that this is a vital issue for women. Why do women get pregnant? Why do women need abortions? Why do people need abortions? And I kept feeling the weight of Michelle Goodwin’s op ed in the Times the day before. I’ve known Professor Goodwin for a long time. I’m sure you have as well Dahlia. She is a just a phenomenal scholar and activist and lawyer thinking about race reproduction, criminal law and violence. And she published this Op-Ed about her father raping her as a child and how she got pregnant and how important it was for her to be able to get an abortion. Her father wanted her to get an abortion as well. It not only was necessary for her mental health, but it really saved her life. And I kept thinking what it must have been like for her to listen to that argument and have the reality of why people need abortions almost deemed irrelevant. So that’s the first thing I think was absent. And that we need to talk more about is why is it that people need abortions, why do people get pregnant? The other thing is religion. And as you say in your setup, Dahlia, there are so many ways in which with this argument represented to me was about was that? We have secularized religious values, so whether it is the importance of Christmas and all of the worry that Christmas is under threat, as if that is a national holiday that everyone celebrates and to say happy holidays is somehow anti-Christian. But more importantly, that we can now be at a point in 2021, with a decision coming out in the summer of twenty twenty two, where it is the official policy of the United States Supreme Court and more than a majority of state legislatures. That life begins at a certain time. That is absolutely a religious decision, but one that is now passing a secular in nature and that I find so troubling when it’s held up against the ways in which explicitly religious values are being used as a cudgel to undermine probably the most fundamental public value, which is public health. And so this case comes the Dobbs case comes on the heels of the COVID cases last summer, where governors across the country were scrambling to deal with this horrendous pandemic imposed what were reasonable limitations on the ways in which we all operated normally and religious organization after religious organization on the right. Not all that some on the right objected to being held to account for or to be responsible for the same kinds of burdens that all the rest of us were. And those cases went to the Supreme Court and the court and lower courts have recognized that religious liberty is a more important value than public health. So between those COVID cases and what we saw in Dobbs, I am prepared to say now that the U.S. Supreme Court is the greatest threat to public health that we have present in the United States during a deadly pandemic.
S1: And Catherine, you’ve been saying this and reading this, and we’re going to talk about it in a minute that there’s kind of a two tiered way that this court analyzes rights and that religious liberty and property rights are at the top. And a lot of other things, including public health and gender issues. And I’m sure you’d say immigrants rights are down at the bottom. And I’ve been colloquially saying a version of the same thing, I think on this podcast for a while, which is this is beginning to be a referendum on what the majority of the court deems an emergency, and it’s an emergency. If you can’t pray and it is an emergency, even if, by the way, that policy has been rescinded because it might be reinstated, that’s an emergency on the shadow docket and SB eight, which we are now well into the third month of. Absolutely, no one in Texas can get an abortion after six weeks, and that’s not an emergency for anyone. And so I think there are two framings of the same thing, which is this is a visceral feeling that the majority of the court is carrying around about whose rights are exigency urgently important to be vindicated and which rights can just work themselves out some other way.
S5: I think that’s absolutely right. The justices, Gorsuch and Alito and Kavanaugh, to some degree, and then for a long time, Justice Thomas have been ringing this bell that we are in the midst of a constitutional emergency in terms of threats to the rights basically of Christians of certain Christians. And it’s about time that the law paid closer attention to this. And so they now have, you know, a majority of Catholics on the court and a majority of people of faith on the court who are prepared to write into law. The fact of that constitutional religious liberty emergency and again, as you said, Dahlia in the middle of a pandemic that is a public health emergency and a parallel public health emergency, which is around women’s health, reproductive health, the way they have pulled this off is worthy of note. When the framers wrote the Bill of Rights, the amendments to the Constitution in which they crafted limits on state power, whether it’s rights to free speech, religious liberty, equal protection, rights to bear guns, you know, rights to counsel and in criminal trials, all those sorts of things. They understood those rights as bearing a complex relationship to one another. And they had to be balanced and managed in a kind of synergistic ecology, if you will. No one of them was any more important than any other. But in a particular case, one could be seen as more important, or at least that it might win that day. But the others would be able to come back and fight another day after that. What this court is doing is explicitly tearing constitutional rights. And part of how they’re doing that is by saying, well, look, we look at the text of the Constitution, we don’t see the word abortion. We don’t see the word privacy. We don’t see the word gay, but we do see the word religion. And we do see the word gun or militia. Right. And so I just want to preview what’s what’s coming down the line in terms of the gun control case that the court also heard this term is that there are certain top tier rights that get priority treatment. Religious liberty being the most important, it seems, and I think gun rights are probably going to be right up there with it once they issued the gun case decision in the spring or the summer. And then other rights are second tier rights, which can be respected. When they don’t conflict with other of these top tier rights, I mean, I hope that’s where we end up, although after the argument on Wednesday, it may be that they don’t exist at all. But if you think about same sex marriage, the Obergefell decision Lawrence versus Texas, the case that overruled laws that criminalize same sex sex. Those were cases in which there wasn’t a conflict with another, right? But when those rights come into conflict with these top tier rights, religious liberty being most important, then they have to yield. And this is a radical new way to think about what it means to be a people governed by limits on government that some people enjoy greater freedom and equality than others do. We saw the results of this tearing of rights inaction on Wednesday, where the supermajority really of the court did not take seriously at all. What the right to abortion was, what what Roe versus Wade means, and what that right as a kind of right that’s held not only by people seeking abortions, but by a much broader constituency of people who think about bodily integrity, equality and sexual rights. More generally,
S1: what you’re saying is it’s easy to do Lawrence. If it’s not in conflict with something, it’s easy to do. Obergefell when Obergefell is in collision with a cake baker, that’s when you have to start privileging one over the other. And I think that’s a super useful frame for my, you know, saying that what they feel to be an emergency before we get to the collisions, they do want to just read you some language because they think this is absolutely your point. Here’s Mississippi Solicitor General Scott Stewart telling the justices that you know, Roe and Casey, they quote, haunt our country. They quote poison the law. And then he says this Roe in cases, core holding, according to the courts, is that the people can protect an unborn girl’s life when she just barely can survive outside the womb, but not any earlier when she needs a little more help. And I’m just wondering rhetorically what that move is to start talking about Roe and Casey as being about an unborn girl. Like, that’s not actually what Roe and Casey are about. It again, seems like it’s putting this deeply, deeply faith based spin on the characterization of Roe and Casey and then leaving it there for the court to sort of object to a needless to say, nobody objects the unborn little girl.
S5: Well, yes, it’s a faith based spin, but it’s also a kind of patriarchal paternalism. And you know, the other part of Casey, which you haven’t mentioned, but which I’m sure you’ve memorized like I have, is the court making up this myth that there are many women who have abortions who come later to regret them? And for that reason, it’s a good thing that the various states, whether it’s Pennsylvania or other states, actually imposes a kind of supervision on that decision and decides what kind of information you might need about a waiting period or fetal pain. Or take a look at a sonogram picture of the fetus so that you might make a better decision than you might otherwise make without the help from the state. Now they acknowledge that there were no facts. There was no evidence of this. In the record or to be found, they were making it up, that it was a good thing that the state of Pennsylvania was helping those women who later regretted having an abortion or ending a pregnancy. And I think this is just the next step in that process of, well, here’s the state helping those little innocent future girls, just as the state was there to help those already born girls that we’re going to make a decision that they would later regret. And what’s I think so. I mean, there’s so many things offensive about it, but one of them is Roe versus Wade was based. The reasoning of Roe. As much as I think almost all of us who work in this area would rather not have to defend Roe because it’s not the greatest decision at all, but that’s what we have. But but it was decided on the idea of the integrity of a person’s ability to make a decision about something is fundamentally important as a pregnancy with their doctor. All right. It’s a kind of decisional agency or liberty, if you will. We often frame it as a privacy case, but it’s also a liberty case. And so the the woman or the pregnant person is an agent in Roe whose rights are protected up to a certain point. By the time we get to Casey, the pregnant person is an irrational or potentially irrational vessel for a future person who really needs the paternalistic guidance of the state in order to make a decision that she might later regret. Part of being an adult is having to make hard choices in our lives. Do I take this job? Do I move to this place? Do I have this next child or no children at all? All of those decisions are complex, and to say that one might regret them. I think overdetermined is just the complexity of life. And there’s no reason why I would want the state of New York helping me make those decisions any more than I would want the state of Pennsylvania helping some woman decide whether to have an abortion because she might later think it was a complicated decision, which I think for many people who have abortions, it is a complicated decision. So I just I think that that language about protecting future girls, the seeds of that was already in Casey, right?
S1: I mean, that becomes Justice Kennedy, right? When he’s talking about, quote unquote partial birth abortions and he’s bemoaning, you know, these poor, confused like foggy headed women who just can’t make proper choices. So many of the trap laws, as you said, whether it’s these warnings that are not in fact medically supported about, you know, breast cancer and suicidal ideation, I mean, it’s all of a piece with this idea that you never stop being a little girl that needs to be protected even when you’re burying the next little girl that needs to be protected. It does raise for me this other part of it, which is the state and the state agency, and I know it didn’t escape your attention that Mississippi Solicitor General Scott Stewart was the guy who was famously defending the Trump administration policy that wouldn’t have allowed a pregnant migrant teen out of a shelter even when she had the government was not going to pay for her abortion. She was not going to be transported by the government. She had a judicial bypass. And at that time, his argument was, again, I think, a purely theological claim that the government at that point, the Trump administration could not facilitated abortion. That merely opened the door to the shelter in which this migrant teen was being held would be facilitation, which again strikes me as there’s no way to think about that other than as a purely theological claim. Tell me if I’m over reading it.
S5: Well, this goes back to where we started is that religion is always already on the scene, even in spaces that we wouldn’t understand as religious. I go back to the little sisters of the poor case where there are these, there’s these nuns or a Catholic order that runs nursing homes and assisted living facilities, and they don’t want to provide coverage for contraception in their employee insurance plan. OK. Hobby Lobby and allows them that out, but they don’t even want to sign the form. Just sign it that says we’re going to opt out of this and then the state can go ahead and cover that part of the insurance policies, and for them they feel, Oh, this implicates us in the immoral choices of our employees so religious values can never be evacuated from the scene because they are ever present. And that’s this problem of where we see the kind of secularization of faith as being so incredibly important on the one hand and on the other hand, posing such a threat to religion when we try to put some bounds on it. I think part of what’s the underlying problem here, whether it’s in the little sisters and contraception context or in the Dobbs context, is that really starting in the Reagan era with the idea of a shrinking public sphere, shrinking government? But we also saw was almost an evaporation of the idea of a public morality. Prior to Reagan, we had these deep ideas about justice even during the LBJ period. We created a social welfare system, a social safety net that was about taking care of each other as a public responsibility and then a civil rights infrastructure. These were public projects that we felt all collectively committed to that has all withered and we have delegated to the private sector, largely religious or faith based organizations. The job of thinking morally, of doing that moral work at all the government is there for all the public sector is there for a sort of a coordination function. Right. And so when you have the thick morality of religion up against that kind of thin administrative state that doesn’t have any commitment to a kind of good society, right? That’s the work now of private actors, private religious actors. The public sector will always lose. And I think that’s why we lost the COVID cases, too, is that religion is so much more important than whatever kind of collective morality we might be able to muster around protecting public health. And so too, with abortion, religion has captured so many of what we even might think of as secular kind of public health values. So, you know, the little sisters is one example. Dobbs is another. I think the COVID cases are third.
S1: And this is probably a perfect lead in to the Columbia Law Rights and Religion Project. Your southern hospitals report that I think absolutely makes manifest what you’ve just described, which is, you know, you were initially just trying to look at this really narrow question about abortion care restrictions at Protestant hospitals as opposed to Catholic hospitals in the South. And lo and behold, it turns out that not only are Protestant hospital systems regulating abortion, but all sorts of secular hospitals are too. And it’s feels like it’s very much of a piece with what you’re describing in our heads. Hospitals are hospitals, they don’t have morality, they just do medical care. But what has stepped in to the breach has been religion laden, values laden, beholden to religion laden communities. We’ve got hospitals all over the country that will not perform abortions.
S5: Exactly. And it’s not just, you know, we might count as elective abortions, which I think is a, you know, a terrible misnomer. It’s procedures that take place if you if you’re going to have what what might count as an abortion in a hospital. These are emergency procedures. There are procedures that couldn’t take place in a clinic. So there’s some serious medical emergency that’s taking place that would call for perhaps the ending of a pregnancy. And what we found in these Protestant affiliated hospitals, whether it’s Methodist Baptist, Seventh Day Adventist, you know, a whole range of religiously affiliated Protestant hospitals in the South is that almost none of them will even inform a patient during a medical emergency that perhaps it would be better for her health to terminate the pregnancy in one of these cases, we found. They actually said to her, You’re not dying today. We have to wait until you’re actually on your deathbed before we would perform any kind of termination of the pregnancy at which point, you know, it’s it’s kind of a moot point. And this is, I have to credit my colleague Elizabeth Platt, who did this research over and over two years, painstaking research with Amy Littlefield, who is an amazing journalist who writes on reproductive justice as well. We found that these values have migrated into secular hospitals, largely because the medical providers there felt that the communities would be up in arms if they knew that public hospitals, university hospitals in Texas and Mississippi and Alabama and Georgia were doing abortions. And again, not we’re not talking to the first 12 weeks. We’re talking later, you know, emergencies in a hospital where it is absolutely medically indicated. So there’s religious health care, and then there is a secular standard of health care, which most people think that they’re going to get when they go to the hospital. But for most people in the south, the only thing you can get is religious health care, and it applies certainly to abortion, but also other things like sterilization end of life issues. We found obviously similar issues having to do with gender affirming health care for trans folks. It’s not just abortion, but abortion is obviously the thing we’re spending the most attention on right now,
S1: and this is usually my predatory point when we have these conversations and I should have started with it. But I think that one other misnomer in this conversation is that Dobbs is going to be the kind of line in the sand between being able to get an abortion in the United States. And not because, of course, there are so many places, Mississippi chief among them, where if you are poor and if you are a person of color, if you are in Texas, for sure, now abortion access is almost impossible. States that have one clinic states that have prohibitive waiting periods. And I think that in some ways, for all the people who are just horrified at hearing what happened in Dobbs in Wednesday, what they’ve missed on the ground isn’t just how very, very devilishly difficult it is to get an abortion in a hospital in the South to find a doctor willing to perform an abortion because there’s real reasons not to do that, but also just the thousand roadblocks that are again, seemingly secular but really pressurized by kind of theological constraints. And I think we just don’t realize how in many places in this country, women actually already live in a post Roe world.
S5: Well, I think many people in this country never benefited from Roe in the first place because of course, the case that came right after Roe was the case dealing with public funding of abortion, which we lost. So one has on paper, at least in nineteen seventy four or five six, whatever a right to an abortion. But if you can’t pay for it, what good is that right? And so as I know you will know, the majority of people who have abortions in the, you know, the earlier parts of a pregnancy are are women of color. Certainly in Mississippi, the numbers are crushing, but they have never had a robust right to abortion to begin with. This story is about race from the beginning, the middle and the end.
S1: Can can you talk briefly about the other side of the coin, because I suspect you get this question as often as I do, which is, Hey Catherine, my religion says I’m actually allowed to have an abortion up to and including the viability line if it’s a threat to my health or my religion says in cases of rape and incest. Abortion is absolutely allowed. Why is the religious conversation so profoundly asymmetrical that we just don’t even hear religious liberty claims from people who actually don’t want to be constrained by six week bans or 15 week bans?
S5: Well, you’re absolutely right. There are many people of faith, many faith traditions and many health care providers of faith for whom providing the full spectrum of reproductive health care is consonant with their faith, if not determined by their faith. And I will say I have to blame a little bit Dahlia the media for covering in a biased way. I don’t mean you, but you know, generally religious liberty as an issue that is really only about the religious right, which I think really interesting about the pre Roe period is that there was a robust clergy consultation service that helped facilitate abortions of Jews, Christians, Muslims, multi denominational group of faith leaders who were committed to helping get access to abortion for whoever needed it as an article of their faith. And that withered somewhat once abortion became legal because that wasn’t needed as much. But when the Supreme Court decided employment division versus Smith in 1990, Justice Scalia writing for for the majority supermajority, basically lowering the protections under the First Amendment for religious liberty from what they’ve been before. And then Congress immediately jumped in and said, we’re going to create a federal statute that will create higher protections for religious liberty in statutes that later was called the Religious Freedom Restoration Act. It took three years to get that passed, largely because the US Conference of Catholic Catholic Bishops opposed it, and they opposed it because they were afraid that people of faith would make an argument in favor of access to abortion. By today’s standards, that sounds like why, because it’s people of faith that we normally think of as and particularly the Catholics as opposing abortion. But there is a long tradition in this country of faith based activists, health care providers and others advocating for the full range of reproductive health care. And you know, I will share with you confidentially and your listeners that we are working on reinvigorating lawsuits, challenging laws like SB eight with religious liberty claim and reinvigorating the clergy consultation service. The right doesn’t get to own religion. They don’t, as a matter of fact, and they certainly shouldn’t in the law.
S1: One of the reasons I was desperate to talk to you, Catherine, is that I was listening to arguments on Wednesday. I felt as though every time a justice said X is not on the table or an advocate said, why is not on the table? It was a town that that was on the table and the more I heard, Oh, Lawrence, is it no problem? You know, Griswold isn’t a problem. The more I thought to myself, I’m going to just need Catherine to walk me through what is in fact, on the table when we say that only Roe and Casey are on the table. And one of the places I wanted to start was Clarence Thomas. He did this over and over again, you know, I don’t know. I guess you’re talking about abortion, but is what we hear in the Constitution. You know, you said this in your set up the privacy autonomy. What what are we talking about here? And then he said, You know, all that stuff just comes out of Lochner. And I guess I wanted to start with what Clarence Thomas signaling to us when he’s asking these questions of both advocates to sort of help him establish the contours of what they’re even talking about today.
S5: What are the nifty things about Clarence Thomas is that he is famous for saying the quiet part out loud. So that’s what he was doing right there. And this has been his view for a very long time. And now he has colleagues who share this view, which is that if it’s not explicitly in the text of the Constitution, it’s not a right we can recognize. So he has long viewed a whole range of constitutional cases that I think we all kind of take for granted, but certainly ones based on privacy. I would say, and all of Justice Kennedy over that recognizes a. And kind of human dignity, we don’t see dignity in the Constitution, right? He has long believed that that was out, that was interpretation of the Constitution beyond the bounds of the Constitution, a kind of lawmaking or policymaking that belongs better to Congress than to the US Supreme Court interpreting a constitution. So that’s what he was referencing is if we don’t see those words. We don’t have an explicit textual anchor for the right that’s at stake here. I’m sorry. Amend the Constitution. Go somewhere else. You’re in the wrong room. I think we’re going to see either the court go big and agree entirely. That substantive due process, which is the term of art that is often turned to, is the kind of catch basin for rights. That seemed certainly important, but we don’t quite know what hook to hang them on that may go out the window. And with it may go. Same sex marriage rights. Lawrence versus Texas. A whole range of rights. That’s a big move that will certainly generate the stench. The Justice Sonia Sotomayor began the argument with of absolutely undermining the integrity of the Supreme Court as an apolitical body. But they can also go small. And uphold the Mississippi statute by affirming Roe versus Wade or at least not overruling it. But coming up with a more generous test than the one we have now, which would mean to contract whatever it is, the existing right to abortion is this is where Chief Justice, I think is is located and is wanting to to find for other members of the court to go with him because in the long run, he sees himself as the custodian of the integrity of the court, which is sort of part of the job description, I would say. One would hope that other members of the court shared that view, but it seems that not all of them do. But I can imagine them going a bit smaller and just saying we’ve got a new test, something beyond what Casey anticipated. Or we can redefine what undue burden means in a way that is less protective of abortion rights than we had before. But we’re still, you know, those those cases are still good cases, and we’re not completely overturning 50 years of jurisprudence with one swipe of the pen. But I think Justice Thomas, in those remarks you mentioned, was signaling a desire, at least by a few members of the court, that they go quite big
S1: and maybe worth tagging to that thought. And I remember this from Justice Barrett’s confirmation hearing. I mean, her notion of it’s not a super precedent as long as people really hate it. And, you know, people have hated Roe from the get go. So if it’s unpopular, it’s kind of always on the table. And I was really struck by the amount of weight that public opinion around Roe is so divisive. This is where you get Brett Kavanaugh just saying, Well, you know, everybody hates it, so maybe we should just stay neutral. But the idea that there’s a vested interest in continuing to have everybody hate the president because you kind of create the reality that then you hope to pull apart. And so I was very, very struck by this analysis that, you know, we don’t have a problem with Obergefell. We don’t have a problem with Lawrence. Catherine, lots of people have a problem with a very good film, Lawrence. You can certainly say it’s ripping the nation apart if you want to look at it through the lens of Fulton or Masterpiece Cakeshop. So I’m worried that that too is a little bit of a slippery slope.
S5: Well, it also signals something radically different about what they think it means to have a constitution. A constitution is not a popularity contest. Sometimes what constitutions require and the kinds of limits on an unbridled libertarian society are painful for some of us. Or at least they have some limits on our liberty. But that’s what it means to live in a pluralistic societies to figure out ways in which everybody’s rights can be respected, which means all of us have to surrender some degree of our liberty. As Justice Kavanaugh hammered away at this issue during the argument of, well, wait a minute, this is hotly contested. Therefore, we should be superbly neutral scrupulously. I thought, Well, what about Brown vs. Board of Education and racial segregation that was hotly contested in many respects? It still is the fact that it’s not popular. Does it mean it is not the correct interpretation of the Constitution? Hopefully, we’re always aspiring to be a better democracy than we were yesterday. Right. And some of the requirements of the Constitution, which is and as interpreted by the Supreme Court and anti majoritarian component of democratic governance, which is to say that one doesn’t vote on what constitutional rights look like. We ask a court of experts to interpret that document with fidelity to its meaning over time. And some of those rulings will be unpopular. So to say that the fact that this is hotly contested means we ought to send it back to the states. Well, I guess we should do that with lynching, too. We should do that with race-based segregation, slavery. You know, there are people who still think that was a good idea. A constitution has to stand for something. And it’s not always popular. It’s part of being a grown up. Yeah, it’s funny you don’t have a grown up country.
S1: You keep using this language of agency. I wanted to ask you, you started with Michelle Goodwin and you know, she’s done more work on sort of the bodies of black women and how we incarcerate them and how we criminalize pregnancy. And I wonder if you heard echoes of Michelle’s work, both in Clarence Thomas
S1: pressing line of questions about can we criminalize fetal endangerment earlier? Like, is there a way to really go after more women who are endangering their fetus and then an echo of it in Amy Coney Barrett’s really strange language about, you know, adoption and these safe haven statutes? And I wondered if any of that you were hearing through the language of asking women to be vessels and then criminalizing their conduct as vessels, particularly if they are women of color.
S5: Part of what underwrites what I think both of them were coming from as a kind of crude individualism is that you’re responsible for your own choices, your bad choices or good choices. And that was so much. Even Clarence Thomas confirmation hearing testimony was, you know, coming from, pinpoint Georgia. I am a self-made man. I am not a product of my race. I have transcended my race. I am here today because of who I am as an individual is enormously judgmental of black people who claim collective harm. He does not want to recognize that. And in a sense, Amy Coney Barrett’s comment, which, you know, I don’t know if you could hear me. I was screaming in New York at night, at my laptop when she said, I basically, I don’t get what’s such a big deal about banning abortions because we have states with safe haven laws. You can go drop your infant at a firehouse. Doesn’t that solve the problem and you won’t be legally responsible? Well, first of all, that’s not exactly how those laws work. But mostly this were compelling pregnancy, which can be a very dangerous enterprise. Never mind it shapes you as a person to become a parent. In any event, but certainly against your will. And it’s not like it’s over in away from your mind once you’ve dropped this infant at a firehouse. But it’s just individualization of the kind of almost transactional value of pregnancy and parenting that I found quite surprising from her, although not really, because she, of course, herself has adopted children. Adoption has been important in her life, but it need not be in everyone else’s. So it’s just this radical de contextualisation of abortion, of decisions that people make in their lives, from the context in which those decisions are made and those life events occur. I think that’s true for Clarence Thomas. And it seems to be clear for Justice Barrett
S1: and just one more beat on Justice Barrett, because I’m sure you heard her throwaway line about vaccines. You know, why don’t you do laws take care of that problem? For me, that it
S7: focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts like vaccines.
S1: And anybody who’s looking at, you know, these vaccine mandate cases that are barreling towards the court and who is looking at religious liberty objections to vaccine thought, well, that’s a tell.
S3: Well, she told,
S1: didn’t seem good.
S5: Well, to go back to what we were talking about earlier, the religious liberty cases that are lurking in the background of the Dobbs argument grew out of at least this term. The COVID cases and to the extent that we know that Justice Barrett feels quite strongly that there is a fundamental religious liberty right that set in peril. In the Koven mandate cases, she signals in the Dobbs argument that she also feels that there’s a secular value to bodily integrity that is as pressing. In the vaccine case, as in the reproductive rights case and you know, you got to give it to her, that’s consistency.
S1: I want you to take a minute to just walk us through what’s coming. What else we’ve mentioned the vaccine mandates. We’ve mentioned religious exemptions. There are other church state cases barreling toward the court. I wonder if you could just talk for a quick minute about what folks should be looking for, particularly the folks who really are reporting today that they’re shocked, shocked by what they heard in Dobbs so that, for, you know, warned is forearmed. Tell us what the landscape in your world of, you know, religious liberty collisions with civil rights. What should we be looking for next?
S5: Well, one thing I think it’s important for journalists and other people who are reading the court carefully they might want to pay attention to is the the degree to which the court is engaged in storytelling. So when they decide these religious liberty cases, they do so by telling a very rich story about the history of the United States and the fundamental importance of religious persecution at the founding and religious liberty as a fundamental value from the founding and how virtuous the faith based people are who are wrenchingly trying to get together on Sundays, usually Sundays, to be in communion with other people of faith. By contrast, when, say, gay people come to the court seeking equality rights, as was the case in the last term, you get sterile, logical, boring technical reasoning. There’s no rich story of a history of equality or the history of persecution of lesbians or gay men or queer people or trans people. It could be anybody, really. These are stock characters. So too, I would expect in the abortion cases, we won’t hear a story. About why it is that some people are faced with a decision to terminate a pregnancy and why that might be a complicated decision, but certainly one they should make. Instead, we will hear a different kind of story about the the care of state legislatures for women’s health and their care for these future girls that you referred to earlier. These are signals of what the court cares about in terms of what kind of storytelling they do and what kind of reasoning they deploy. But I also think what comes next a little bit depends on whether the court goes big or goes small in this decision. I would predict that if in June, the end of June or early July, when they hand down the decision and Dobbs. And if it’s a sweeping Clarence Thomas sort of opinion where they basically wipe abortion rights from the Constitution, the Alliance Defending Freedom will have a complaint filed the next day challenging Obergefell the same sex marriage case. They are ready are at the net. They are well-resourced and they are smart lawyers. Our side is never that ready. We are smart. I give us that we’re smart, but we’re not as well resourced and we don’t plan as well. And so the other side is teeing up a set of cases, the next round of cases that will expand and build on whatever it is. The court decides in June and Dobbs. And then that day that that decision comes down, there are over half the states have statutes that will spring into action, rendering abortion a crime, and our movement will have to move into our own form of action of helping move people around the country from states that are conscripting women into being into forced parenthood. Two states that are not doing so, and you know, we’re even talking about giving the couch out in our living room to women who need to come to New York to get abortions. So the activism will be in the streets for sure, but it won’t be enough, unfortunately.
S1: And that doesn’t even account for the specter of, you know, losing the House, losing the Senate fetal personhood, you know, really, you know, going bigger, bigger, bigger. Before I let you go, people are probably now traumatized by listening to Dobbs and to listening to Julie and listening to you. Can you give us some sense of what can be done beyond this sort of defensive, you know, litigation? I have to hear sight to the great progressive hero Senator Susan Collins, who now tells us that she believes that the protections of Roe need to be codified into law, having heard about the Dobbs argument. I should note that Susan Collins opposes Whipper, the Women’s Health Protection Act. What is there? What can happen legislatively? What can happen in terms of a meaningful bulwark against the kind of grim reality you’re positing here?
S5: Well, I think as is almost always a good idea, we should be looking at the organizing that women of color have been doing for a very long time. Roe was never something that they invested in defending our movement, the women’s rights movement, the reproductive justice movement has by and large been a backward looking movement for some time of defending a principle Roe versus Wade that was crummy the day it was issued. Right. And we’ve spent most of our legal resources and many of our other organizing resources trying to hold on to that sort of thin principle. Women of color have not engaged in that fight, for the most part. Loretta Ross and other leaders of the reproductive justice movement have sort of seen Roe as irrelevant because it was in their lives and they’ve been organizing in their own communities to build structures that were not in the sights of Roe and others, other forms of support, other forms of health care and a much broader way to think about reproductive justice as not just a matter of rights. And so I would say you handed over. To Loretta Ross and the rest of the folks in the reproductive justice movement to lead us forward rather than merely looking back and defending a set of principles that were quite impoverished to begin with.
S1: Catherine Franke is the James L. Dorr Professor of law at Columbia University. She directs the Center for Gender and Sexuality Law and is the founder and faculty director of the Law Rights and Religion Project at Columbia Law School. In 2021, she launched the EORI Project, a law and policy think tank, to develop rigorous ways to think about the era. And her most recent book, Repair Redeeming the Promise of Abolition, makes the case for racial reparations. Holy cow, I really needed to talk to you this week, and even though I feel like just a little tiny, tiny, bit more dismayed than I thought I would. I also feel 10 billion IQ points smarter. Thank you. Thank you for taking time to be with us this week.
S5: Thank you, Dahlia.
S1: Welcome to our slate plus listeners to the segment that we do every show with Mark Joseph Stern, who covers the Supreme Court for us here at Slate to process a little bit this week with our slate plus subscribers of what happened. So Mark, welcome back.
S8: Happy to be here. It’s a somber mood.
S1: We missed you last year. We missed you.
S8: I appreciate it. Happy to be back for this monumentally depressing week of the Supreme Court.
S1: Mark, I wonder. I mean, we’ve just come off a very long show where we talked both to an advocate who argued the case in a law professor who’s been teaching gender rights forever. And I wonder if we can have a kind of top line conversation not necessarily about what happened on Wednesday, because I think at this point listeners know what happened. But how people are processing it and what I’m thinking about is just the immense number of headlines that said court seems to be trying to find a narrow way through. Possibly, you know, this is going to be a compromise for the Conservative. Like a lot of the coverage I saw, even in respected mainstream press seemed to again minimize the enormity of what you and I were texting each other as argument which was happening, which is John Roberts is trying to move viability to 15 weeks, which is a loss. And he has no takers because there is the majority of the court seems to be gunning for Roe. And I think that half of the people don’t even know that happened. And then there’s another half of the folks who are reading headlines who are like, what? What just happened here? And I think as somebody who’s been writing at least since Kavanaugh came on the court today is coming. How are you processing all that?
S8: Well, I think it’s understandable that some journalists don’t want to go too far out on a limb with a firm prediction, right? Because perhaps they think we’ve been at the precipice before, and Roe has stood in some form and we’ll get to that. But I think that also, you know, Roe is nearly 50 years old. It’s been around for so long, and there is almost a sense of shock and disbelief among folks who don’t cover this very closely or pay really close attention that we’re actually finally here on the brink of Roe really falling, possibly forever. And so I think, you know, journalists don’t want to jump into that. They want to preserve the possibility of a compromise, even though, as you said, none of the other conservatives seemed eager to accept Roberts sort of olive branch, which was not an olive branch. I mean, moving back the line to 15 or even 12 weeks would be atrocious for reproductive rights. But beyond that, even very smart people who I greatly respect, I guess, just haven’t really been believing us when we light our hair on fire and run around the room and scream that Roe is going to fall. And maybe now they’ve sort of had the scales fall off their eyes. It’s perhaps a bit late for that, but you know, we’re beginning to see. At long last, a big chunk of the left grapple with the reality that reproductive freedom could be abolished by the Supreme Court, at least as a constitutional principle for the rest of all time.
S1: And maybe the way I’m thinking about it, and I wrote it in these terms after argument on Wednesday, I know you and I have talked about it is through this lens of gaslighting because I think that I’m remembering and you’re remembering. Linda Greenhouse also wrote a fantastic piece on Friday about being gaslit. That part of the problem is, if you’re lied to persistently enough, it’s really hard to wake up and be like, Oh my God. So when Susan Collins promised us that Brett Kavanaugh was pro-choice, they were lying. Like when all of those justices in their confirmation hearings said that Roe was quote unquote settled law in the law of the land and binding precedent. They were lying, and I think that there is a way in which people like you and I who again, I think since the day Kavanaugh was sworn in have been writing This is it for abortion rights, whether by dint of saying Roe v. Wade is overturned or by just making it impossible. This is coming. And I wonder how much. Of the damage here or the shock in all. People are feeling it’s just a function of being kind of colluding in the gas lighting.
S8: Yeah, I think that’s a somewhat blunt but appropriate term for what’s been going on. Look back to my point, you know, for for nearly 50 years, Roe has stood in some form and we have sort of been here before in 1992, when the Supreme Court took on Planned Parenthood versus Casey. I mean, at that point, there were eight Republican appointees on the bench. The one Democratic appointee, Byron White, dissented and Roe and still opposed abortion rights. It looked like Roe was about to fall, and yet three conservatives sort of pulled a rabbit out of the hat and preserved some basic core of reproductive autonomy. And I think people who lived through that are probably saying, Well, I have some deja vu here. Are we really sure the sky is falling? And even folks who didn’t pay attention then or weren’t alive back then are saying, Well, you know, liberals have been warning about this day for so long after Alito was confirmed, then Roberts, then you know, Gorsuch, then Kavanaugh, then Barrett. And here we are in late 2021, and Roe still basically stands not in Texas. But leaving that aside, I think that the basic kind of conventional wisdom is, you know, don’t believe that Roe is going to fall until it actually falls. And Republicans and their Supreme Court nominees have been absolutely brilliant in promoting that kind of thinking on the left and in the center. You know, even as Gorsuch and then Kavanaugh and then Barrett went before the Senate Judiciary Committee, the Republican senators mocked Democrats for even suggesting that those justices might overturn Roe viciously ridiculed their colleagues on the Democratic side for sort of, you know, ringing the alarm and saying this could be the end of Roe. Republican senators said, Oh, what would absurdity? You know, how could you even suggest such a thing that that this justice before us, the future justice would would would overturn such settled precedent and that the nominees themselves, you know, we saw them one after another, Gorsuch. Brett Kavanaugh go before that committee and say, Oh, well, Roe is settled law. It’s precedent. It’s been the law of the land, yada yada yada. And so I think the gaslighting has been so ubiquitous and so kind of cleverly done that a lot of people who should not be in the dark today remain in the dark, remain sort of comforted by the lies they’ve been told. And that period is going to come to an end pretty soon.
S1: I want to be super clear that if this sounds like the Slate Plus Amicus extradition in which Mark and I curled up in a ball are saying, I told you so it’s not out of a place of any kind of vindication, but just, I think, a real comment on how the media covers the court and how we talk about the court and how our institutions talk about the court. It does bring me to a slightly related question mark, which I really wanted to explore with you because I think at the same time that you’ve been writing, they’re gunning for Roe for the last couple of years. You’ve also been writing. They’re gunning for voting rights and I’m connecting the two because I cannot tell you how many triumphal emails I’ve heard from people saying this is going to really galvanize voters. It’s going to get out the vote in twenty two. This is going to flip the Senate. You know, people are going to are going to really express their rage and fury at the ballot box and putting aside the utterly transactional nature of those claims that it’s OK if millions of women and pregnant people lose all reproductive freedom and bodily autonomy because it’s going to redound to the benefit of a Senate race. But I just want to connect it, and I want to hear you to connected to the very same court that is chipping away at the right to choose is also, by the way, chipping away at the right to vote and that the same communities, people of color, poor people, immigrants, people who do not have the kind of luxury to say, Oh, Roe’s been the law of the land for 50 years, because by the way, it hasn’t been the law for them. As Franke as Katherine Franke suggested, the court is making it harder and harder and harder to vote and put aside the filibuster. Put aside the male portion Senate. The notion that the answer to this is through the ballot box is a little bit to me fatuous, given that access to the ballot box is also really, I think, being eroded by the very same court.
S8: Yes, and the timing is especially poignant because we’re just coming off a fresh wave of gerrymanders of brutal partisan and racial gerrymanders in red and purple states, including. Some that had seemingly enacted redistricting reform. You know, Ohio voters overwhelmingly approved a new law to restrict or abolish partisan gerrymandering, and Republicans in the Legislature just ignored them and drew a really brutal new partisan gerrymander. And so in both state legislatures in the House of Representatives, Republicans are entering this this coming election with a huge leg up that is not really deserved. They’re essentially just rigging elections in their favor, entrenching their own power. And so when Brett Kavanaugh says, well, we should just return this issue to state legislatures and they will reflect the will of the people. That’s false. State legislatures do not reflect the will of the people in a state like Wisconsin with this new gerrymander. Democrats could win a majority of overall votes for the state assembly, and Republicans could win a super majority of seats. There is no reflection of actual popular will in these legislatures. And beyond that, aside from gerrymandering, we’ve got, of course, just direct voter suppression laws like those passed in Georgia, which, by the way, have already started to disenfranchise voters. Thousands of voters had their mail ballots tossed out in recent races in the state of Georgia solely because of these new restrictions that made it harder for you to get a ballot, harder for you to turn it in on time, and you scale that up across the country and predict what’s going to happen in 2022. It’s not pretty. Democrats can knock on as many doors as they want. They can flood ActBlue with as many millions as they want. But you just can’t overcome these kinds of gerrymanders, like the one passed in, say, Texas, which is just a white supremacist gerrymander. You know, 95 percent of the growth in Texas over the last decade was non-white people, racial minorities, and the new maps deprive non-white people of almost all electoral power. You can’t vote your way out of that. And so I think you do have to couple abortion with voting rights here to recognize why Brett Kavanaugh’s putative solution is so fatuous and asinine because the legislatures are not going to resolve this in a way that actually reflects what people want in their state. They’re going to resolve it in a hard line way that reflects the wishes of the most extreme members of their party, because those are the people who control an increasing number of state legislatures and will probably control the house after 2022.
S1: I noted, I think I wrote it in my piece, but you’re saying it, and it’s really, I think this elegiac comment that Brett Kavanaugh wasn’t talking about returning the power to decide abortion rights to the people he was talking about, returning it to the states and the states do not reflect the will of the people. That’s why it is of no utility to keep saying one person in for one woman in four gets an abortion. 60. Whatever percent of polled Americans support Roe v. Wade, those numbers are immaterial in light of the structural changes you’re talking about. I wondered if you would talk for a minute mark. My God, we’re curled up in a ball. I wonder if you would talk for one little minute mark about your thoughts on how the three liberal justices handled argument this week. I couldn’t help but notice that I remember covering oral argument in whole women’s health in 2016, where it was absolute dominance by the liberal questioners on the court. It felt like nothing short of, you know, poetry and motion to watch. Justice Ginsburg spoke to Justice Kagan, Justice Breyer, dribble down the field, dribble down the court to Justice Sotomayor. It was unbelievable to see the dominance in the questioning. I think, you know, one of the things that Julie Rikelman said when we talked to her was that this was a very different argument, even from June medical, because facts didn’t matter. We were arguing about first principles. And you’ve written and you and I have talked a little bit about how Justices Kagan, Sotomayor and Breyer used their time this week. I wonder if you would reflect on what that change, which is really mathematically not the point, but that change of Justice Ruth Bader Ginsburg for Barrett signaled in terms of how the argument went down.
S8: Yeah, I thought that all three were somewhat off kilter, surprisingly. And I thought I really missed Justice Ginsburg’s voice. Aside from, you know, her vote, she was Greta asking really pithy, concise questions that got to the heart of the matter. I remember her famous question where Texas was trying to say in Whole Woman’s Health that if all the abortion clinics shut, that people could just go across the border to New Mexico and R.B.G. Pointed out, well, that clinic doesn’t follow any of these stringent regulations that you’re imposing. So how can you say that’s a safe alternative? And that was such a brilliant kind of spike, and there was nothing like that during Wednesday’s arguments. Justice Kagan would be the one to ask a question like that, and she didn’t. I thought she was off her game. She asked a kind of long, rambling question that ended with sort of Breyer ask, Can I get your thoughts on that? I thought Justice Sotomayor did the best of the three. She asked some really great sort of rhetorical questions like her now famous question about the stench of illegitimacy that will come from overturning Roe. But she didn’t really put Mississippi’s attorney on the spot. It was more like she was speaking directly to the public. I think there’s value in that, but it didn’t create a particularly exciting dynamic, and I thought Justice Breyer, as I’ve written, was just terrible. Aside from doing the normal Breyer things of rambling on and on and on for just a minute after minute getting lost in his own philosophical musings, he decided to zero in on the one aspect of Planned Parenthood vs. Casey that most infuriates and repels conservatives, which is the idea that the court should be especially willing to stand by controversial watershed precedent when it provokes a ton of backlash from the public because to overturn a decision under fire, as the Casey Court wrote, would damage the court’s legitimacy, perhaps forever. You know, conservatives for a somewhat principled reason, I think really reject that argument because it has nothing to do with the Constitution and everything to do with a kind of political sense of the court’s own power. And for some reason, Breyer thought it was the best thing to zero in on. He even quoted those sentences from Casey. And of course, that gave Barrett and Roberts an opportunity to jump in and explain why that idea is so foreign to originalism and to perhaps just a principled approach to interpreting the Constitution. So I thought they were bad, and I think that missing RBG was a big part of that. But I also think that they are in despair. They see what’s happening. They see much more than we do behind the scenes. They probably realize this was just a total lost cause, and they didn’t seem to settle on one particular strategy to try to push back. They were just all over the place and ended up being almost nowhere.
S1: You know, one of the things that I really couldn’t help noticing was that. All three of them who usually are really deft at serving up the softballs so that either Julie Rikelman or Elizabeth Pre Lugger, the solicitor general, could answer, and there was very little of that, there was very little of the. I’m just going to give you space to talk about in this case, mark women and their bodies and their lives and the fact that birth control fails and the economic disadvantages. And it felt as though those questions that are such a essential part of talking to the people like you say, you know, Sotomayor was clearly not talking to her colleagues or at some points, even the advocates she was talking to us listening outside the room. But I thought that those assists that you come to rely on were pretty few and far between.
S8: Mm hmm. No, I absolutely agree. And I was surprised by that as well. I can’t really offer an explanation for it other than what I said before, which is they are phased by this. They are not trudging onward, you know, leaving everything on the fields. They just seem to be kind of in shambles, unfortunately. And the best they could do was reach out and talk directly to the public and perhaps the public’s listening. But the public wasn’t listening in 2016, and so it’s about five years too late.
S1: I want to end by previewing another religious liberty case, and I say I connect Roe, as you know, to the religious liberty docket, which is coming next week. I think in a normal term and had Dobbs been a normal argument about viability and. Tweaking Casey, we would be putting a lot of attention on Carson, but we’re not, and it is a major, major case that the court is hearing in a week that I think almost without doubt is going to massively expand the way religion inflicts on our daily lives. Can you preview it for us?
S8: Yeah. And the way I like to tee up this case in cases like it is that 20 years ago, the Supreme Court was having a fight about whether it was constitutional for states to even offer public funds to religious schools, to private, parochial schools. There was a big debate. The court ended up splitting very closely on whether it was permissible under under the establishment clause to give taxpayer dollars to parochial schools. Now, 20 years later, the Supreme Court is having a fight about whether the government must give money to private, parochial schools, whether the government has an obligation under the First Amendment to fund religious schools. That’s what this case Carson be making is about. The state of Maine funds private secular schools because basically Maine is really sparsely populated and actually pretty big, and doesn’t have the funds to set up enough public schools to to to satisfy all students. So it has this program where, you know, if you live in one of those remote areas, then you can go to a private secular school and get money for it, and it’ll be just like you’re attending a public school. And several religious parents have sued the state of Maine and argued that they have a First Amendment right to take that public money from the state and use it to send their children to religious schools that actually provide a religious education. And that last part is really important because we’ve had several cases over the last few years where the court has forced states to fund religious schools that are teaching secular subjects. So in Espinosa v. Montana, the court said, All right, we’re going to force Montana to fund these private religious schools. But look, those schools aren’t going to be teaching their students, you know, about Jesus and inculcating them with religious values. The schools are just being discriminated against because of their religious nature. They’re teaching these kids secular subjects, so we don’t have to worry about funding religious exercise here. This case puts all of that to bed. This case is about schools that explicitly indoctrinate students with specific religious principles, and the the petitioners here allege that the First Amendment requires the state to fund that kind of overt religious exercise. That, in my view, goes against exactly what James Madison was most worried about back in the 70s, 80s and 90s, where he wrote that it is an egregious violation of the rights of conscience of other people to be forced to provide money for religious exercise. But that’s the direction this court is heading in because it interprets any denial of funding for religious education and religion in general. You know, any respect for separation of church and state as discrimination against religion and religious people and religious exercise that somehow violates the First Amendment. It’s a very perverse case to even understand where the court is. In this case, you have to go down a rabbit hole and through a looking glass. But I think I just have no doubt that the conservative majority is going to say states have to fund religious schools that provide religious education and actually use the public money to engage in religious exercise.
S1: And one last be worth saying overtly, which is the religious indoctrination in education in some of these schools, is quite expressly anti-gay, for instance. So yet again, just to think about it in terms of Catherine Francie’s sort of tearing of which are the essential rights and which are the secondary rights, the fact that it will be OK to indoctrinate children about matters like LGBTQ rights doesn’t even factor. It doesn’t even factor in the exigent rates, which are the rights of religious parents, right?
S8: The rights of everybody else are just pushed aside. In these cases, the court just excludes taxpayers who are being forced to fund religious exercise, students who might face discrimination at these schools. I mean, the schools in Maine that are set up to get this funding after the court rules, they refuse to allow gay students to enroll. They refuse to allow trans students or even gender nonconforming students to enroll. They discriminate against the children of same sex couples. They are overtly anti LGBTQ, and that just does not factor in at all. Not an iota into the court’s reasoning because they zero in on religious parents and religious kids to the exclusion of everybody else’s rights.
S1: So maybe we’ll end Mark, I don’t even know why I’m laughing. Maybe we’ll end this conversation mark where we so often do, which is folks are really rattled. I think a lot of people who thought whatever else was coming, we were never going to see the sentence. Roe v. Wade is overturned. Really see that we’re on the precipice of that. I’m thinking of what Katherine Franke said at the end of our conversation, where she said Roe was always just a paper write for a lot of people who couldn’t fund their abortion or get to a clinic. And I wonder if there’s some utility in the fact that both of these cases that we’ve just talked about, Carson and Dobbs in some way are making material and real that which has always kind of hovered anyway, which is that there’s never really, at least for the last few years, been a wall between church and state, and that abortion was pretty illusory if you lived in the state of Mississippi.
S8: Well, I suppose you could see that as a silver lining that once the court writes the words Roe v. Wade is overturned and there is no separation of church and state, maybe voters who who haven’t quite understood what’s going on at the court will pay attention and and start voting like their lives depend on it. But that just leads us back to our earlier conversation about the attack on democracy and voter suppression and vote dilution. And it feels like a bit of a vicious circle here, but I will choose to believe for the purposes of ending this conversation on a not despairing notes that there are millions of Americans out there who are either disengaged or occasionally voting for Republicans who don’t realize what their votes are enabling, who are going to look up at the end of this Supreme Court term and realize that they’ve made an egregious mistake and spend the rest of their lives casting votes that actually align with their values. I think those people do exist. And I just hope that their votes haven’t been preemptively suppressed into oblivion.
S1: Mark Joseph Stern ably brilliantly covers the law for Slate. Mark. Yep. There it is. Thank you for being with us. Thank you.
S8: Always a pleasure. Thanks, Dahlia.
S1: And that is a wrap for this episode of Amicus, thank you so much for listening in. Thank you always for your letters and your questions and comments. You can keep in touch at Amicus at Slate.com. We love your letters. Or you can always find us at Facebook.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’ll be back with another episode of Amicus in two short weeks. Until then, hang on in there.