U.S. Backslide on Abortion Rights Is a Grave Danger to Democracy, Say Both Reproductive Rights Experts and Legal Analysts

Participants in the 2017 Women’s March in New York City. Since 2000, 31 countries have expanded access to abortion. Only three have rolled it back: Nicaragua, Poland and the U.S. (Narih Lee / Flickr)

Saturday, Jan. 22, marked Roe v. Wade’s 49th anniversary—and it very well may be its last. 

An online discussion on Friday, Jan. 21, sponsored by Ms. and the Gender and Policy (GAP) Center at George Mason University’s Schar School hosted experts on democracy from the Brennan Center—Madiba Dennie, Elizabeth Hira and Jennifer Weiss-Wolf—along with Michele Goodwin, law professor at the University of California Irvine and host of the Ms. podcast “On the Issues.”

In a rousing discussion, GAP Center director Bonnie Stabile, Dennie, Hira, Weiss-Wolf and Goodwin discussed the implications of the Texas abortion law S.B. 8 and the Dobbs v. Jackson Women’s Health Organization case that directly challenges the precedent of Roe v. Wade—setting the stage for how the U.S. got to this point, and where we go from here.

Watch the full panel, or find the transcript below.

00:00:27 Bonnie Stabile:

Hi there. My name is Bonnie Stabile and I’m the director of the Gender and Policy Center here at the Schar School of Policy and Government and today, I’m thrilled to be able to be here with people from Ms. magazine. I welcome you to our collaboration investigating the question of how abortion rights and democracy intersect importantly for our interests.

At the gender and policy center, we’re interested in disparities in women’s representation and disparities in outcomes for women in the public sphere where health, education, financial security and equitable treatment before the law are concerned. At our center, where we do academic research and public outreach events, we consider theories, and collect data, and analyze it based on how does disparities come about and how they manifest in the public sphere.

So, this week of all weeks, it seems like a great time to talk about the intersection of democracy, of voting rights and abortion rights, which are very much top of mind and top of the headlines today. So, I welcome first my illustrious panel co-moderator Jennifer Weiss-Wolf from the Brennan Center who will be talking with us a little bit about the Brennan Center and Ms. magazine collaboration that resulted in our panel today.

00:02:08 Jennifer Weiss-Wolf:

Hi, everybody and really, really glad to be here. Thank you, Bonnie, and Ms. We’re really thrilled to be talking to you today. So, as Bonnie mentioned, I am here in New York at the Brennan Center for Justice. I’m a woman and democracy fellow here. The title itself is maybe a good way to get started—because the Brennan Center is not a reproductive rights organization, and we are not an abortion-focused organization.

The Brennan Center is a law and policy think tank affiliated with NYU School of Law that focuses on core issues of democracy and justice. Among our sort of mainstay programs are the work that we do on voting rights and elections, on criminal justice reform, on fair representation, on the judiciary and on free, fair elections and all of our voices in American democracy.

Our work is nationally focused, and we work with partners all across the country. We are a part think tank, part legal advocacy organization, part communications hub. We’re not a membership organization. We don’t have our own folks on the ground and boots on the ground across the country. We really do rely on those kinds of partnerships.

I said at the start: We don’t focus on abortion as part of our core work. I am a women and democracy fellow and I spend a lot of my time thinking and writing about the ways of course that issues of democracy, justice, access and participation have a particular impact on gender. It will come as no surprise that on September 1 when we all woke up in our own homes last year in 2021 and saw what the state of affairs was in the state of Texas when the Supreme Court enabled S.B. 8 went into effect and the Supreme Court effectively refused to step in and intervene—which it’s kind of almost unfathomable that here we are in January and the state of affairs remains.

Abortion rights protesters demonstrate outside the Texas State Capitol in Austin on Sept. 1, 2021, the day S.B. 8 took effect in Texas. (Roxy Szal)

We at the Brennan Center, myself personally and my colleagues, all felt an enormous sense of despair, of anger, of the kind of array of emotions that often I guess are attached to doing the kind of work we do day to day, and we very casually actually came together in a group Slack to just talk about how we were feeling. And I was almost immediately blown away by how quickly my colleagues were pivoting to the core work they do daily on access to the ballot, and on money and politics, and on criminal justice reform, and on fair representation.

We were thinking about those issues and the work that they are experts in and how that got us to this place where we have a [Supreme] Court that looks like it does and we have a state legislators that look like they do. And we really started kind of thinking about not just the question—which I’ll say as an aside, we didn’t pose as a question in the title of our piece. We declared that abortion is essential to democracy but also that democracy is essential to abortion, and that’s really what we ended up creating is a menu of essays.

There are 11 of them in total that really dig into the questions about how our systems of democracy and justice are failing us, are failing us as people who can become pregnant or failing us as fair and equal citizens in this country, and we were so thrilled to partner with Ms. magazine—really a first in every which way, a Brennan Center/Ms. partnership, of Brennan Center speaking out on abortion, not one of our core issues opportunity and I think we nailed it.

So, I hope you’ve had a chance to look at the essays written by my colleagues Madiba Dennie, Elizabeth Hira and about a dozen others at the Brennan Center. And of course, Michele Goodwin is an extraordinary legal mind and thinker and participant in this broad discourse academic representing Ms., all of the above. I can’t believe that we are so lucky to get to have this conversation all with each other. So, I think that’s all I will say at the moment, and I’ll turn it back to you, Bonnie, to get our panelists going.

00:06:56 Bonnie Stabile:

Great. Thanks so much, Jen, and yes, we’re fortunate today to have with us Michele Goodwin, chancellor’s professor from UC Irvine. We also have Madiba Dennie, who’s counsel at the Brennan Center and we have Elizabeth Hira, who’s policy council at the Brennan Center democracy program.

I wanted to get started by having each of you talk a little bit about the pieces that you wrote, but I’m going to start with Michele because your most recent podcast talks about this topic, and I wanted to get your thoughts about the topic at hand and how your recent podcast relates.

00:07:35 Michele Goodwin:

Thank you so much. It’s a pleasure to be with you all. So, the podcast platform that we have, “On the Issues with Michele Goodwin” at Ms. magazine, we launched the podcast about a year and a half ago and it’s in the top 2 percent of podcasts, and what we’ve sought to do is to really bring about informative discourse that covers the lifespan of women, democracy, rule of law and free speech and that plays out in many different ways.

Our work on abortion actually is more than what we’ve just been doing recently because we’ve been concerned before S.B. 8 about the potential for the complete erosion of access to reproductive health services—be they contraception, be it abortion—and so, we’re really on the frontlines with looking at this even before S.B. 8 actually went into effect in Texas. And then, followed this all the way through with the Supreme Court hearings, the shadow docket, and then, of course, the Dobbs case, which is the Mississippi abortion case.

A view of the Supreme Court at dusk on January 31, 2017. Many were stunned by the Court’s inaction when issuing its decision on Texas’s anti-abortion law. (Drew Angerer / Getty Images)

Recently, what we have been showing is that it’s important to be able to articulate about abortion without shame and stigma. Amy Brenneman is on our most recent episode, which just launched yesterday, but we’ve also covered topics such as terrorism and abortion, because these are certain elements of the space that tend not to be covered in traditional media—and yet, since Roe v. Wade, there have been nearly 50 bombings of clinics that perform this legal service. There have been numerous murders. There has been the firebombing.

There have been mass shootings and there is the typical day to day, which has become normalized, which is a certain level of bullying and terrorizing of people just looking to get medical services that has become so normalized. When we’ve down on the ground interviewing with people who are running such clinics, they say sometimes the police don’t even come anymore, that the FBI doesn’t even take their calls because they’re just used to people showing up with guns, people taunting and harassing the people who are looking to receive services.

And so, I encourage the viewers, the people who are listening today to check out episode 52, which is our most recent one and also a couple episodes back, our episode that is about American terrorism and abortion services, and we’re not finished yet. We have another episode queuing up about the Janes and sort of historic movement of people, women, trying to make sure that these services are available for women and girls.

And let me just add to this and then turn the panel back over to my wonderful colleagues whom I’m so happy to be with, is that what we see now in the dismantling of access to abortion fits with the discourse that is about denying voting rights, fits with the discourse about harming the interests of Black and Brown women, fits with the discourse that must be connected to maternal mortality and legacies there, fits with a discourse about coercive sterilization, which Fannie Lou Hamer spoke to, what she called the Mississippi appendectomy.

Unless we’re bringing all those cards to the table, then it really makes no sense for us to just be talking about abortion if we fail to contextualize the whole kind of network of disenfranchisement that Black and Brown people have experienced and that has been uniquely felt in the course of spaces of Black women and Brown women.

00:11:40 Bonnie Stabile:

That really fits into the context of the things that we consider through the Gender and Policy Center, including how are laws and policies constructed in terms of who is benefited and who is burdened by those laws, but how also are those laws implemented at the street level bureaucracy level, right. So, laws can be on the books, but as you said, if the police don’t show up or if people can’t exercise their constitutional rights, then those rights just don’t actually exist for them and there are, of course, gross disparities for whom those rights are upheld.

So, I’ll speak for our two next panelists, Madiba and Elizabeth, both really put it on the line yesterday for voting rights and democracy by both getting arrested at an event yesterday, and I’m glad that they’re here today. That was my first thought, like, ‘Oh shoot, what about our panel tomorrow, guys?’ But here they are, so good news.

I’ll start with Madiba. Some of the themes that Michele brought up have to do … I know that two of your essays were included in this Brennan Center collection in the collaboration with Ms. Magazine and they were on the topic of criminalizing pregnancy and also on the Supreme Court’s role. So, I didn’t know which one of those you might want to highlight for a start.

00:12:59 Madiba Dennie:

Yeah. Let’s dive right in and thank you again for giving us the opportunity to be here today. I’m very excited to be here, very excited to be out of police custody and able to have this conversation.

So many of the things you’ve hit on already are like deeply connected to the issues that I was writing about in part of the Brennan/Ms. magazine collaboration and just like really speak to the concerns we have about political participation, about the democratic process, about the meaning of rights when there is no effective remedy—because that’s what we saw with the Supreme Court’s absurd decision allowing S.B. 8 to remain in place.

The majority, the conservative majority, the conservative white male majority of the court effectively overturned centuries of constitutional jurisprudence in like one swift motion. So, I’m not just referring to the establishment of the right to abortion as like formerly in Roe v. Wade but I mean the ability of the courts to enforce laws, the ability of the courts to protect people’s rights when those rights are infringed upon by state legislation or other legislation, and the court here effectively decided that its hands were tied because of this so-called clever strategy that the Texas legislator took by outsourcing enforcement of its abortion restriction to regular citizens.

The conservative white male majority of the court effectively overturned centuries of constitutional jurisprudence in like one swift motion.

This is not novel. We’ve seen this type of deputizing of vigilantes in the voting context before when we had clansmen in the wake of reconstruction preventing Black people from voting. None of this is new. It’s all part and parcel of ongoing oppression and ongoing strategies to like suppress the ability of people of color, women of color, like other marginalized people from fully participating in the political process and having a say in self-governance, and that’s part of why I think it’s so interesting and meaningful when Jen pointed out at the beginning of this that Brennan is not a reproductive rights organization.

Like my technical wheelhouse is on a part of the census team but because of doing work on the census, what I care about is full and fair representation in the political process. Like making sure that everyone is counted and that we all count as members of this body politic and that’s incongruence with the regulation of reproductive rights.

A volunteer provides support to prevent voter intimidation at an Ohio polling location on Election Day 2020; Texas’s new voter suppression law makes it harder for election workers to stop partisan poll watchers from harassing voters. (Photo by Whitney Saleski / SOPA Images / LightRocket via Getty Images)

00:15:43 Bonnie Stabile:

Elizabeth, you’ve talked about in your essay, about the long history of governmental control of women’s bodies and I hope you’ll talk a little bit about that here.

00:15:56 Elizabeth Hira:

I’m happy to, and again, just so glad that we’re having this conversation. I’m grateful to George Mason for hosting us and to Ms. for just being incredible partners, and honestly, I love Madiba. I was on a train with her yesterday morning at 7 a.m., but Michele, it’s really nice to get to sit with you too and just have a community of people who are invested in this work and I’m grateful for that. So, I want to start there.

As far as the discussion for abortion, again my training is actually a gender equity lawyer. I came to democracy reform as a sort of second blush of my career. I had the misfortune for both of these issues to be incredibly relevant in this moment, right, that things our foremothers fought for.

Madiba and I were talking this morning with our team—this is a 400-plus year fight and longer, you know, so I’d like to think that we have this opportunity to pick up the mantle. When I hear people say I can’t believe our grandmothers were doing this work, it’s like we are warriors in a long continuum, and so, I want to take heart to start there, that we can only get better from here.

That is the lens that I approached this particular conversation about the Texas law with as well, is that this fits into a larger systemic question that is not just about abortion. It’s actually about control of women and people who are capable of becoming pregnant. And so, the question for me has always really lasered down to, with abortion in particular, even though you were a woman, should you have rights? That’s really the foundational question that’s being asked here, right, and I think the lens that I took it to was to put it next to all of these other laws.

This is not just about abortion. It’s actually about control of women and people who are capable of becoming pregnant.

I think one of the stunning things that came out of the conversation leading up to this was a quote from one of the amicus briefs that were submitted in July and the quote is: “Women can control their reproductive lives without access to abortion. They can do so by refraining from sexual intercourse.”

That was the kicking off moment for this sort of thought where it’s … I don’t know if we’ve talked about this but women don’t tend to get pregnant by themselves and they often don’t have agency about whether they become pregnant, right, not only from the things that limit their access to contraception, to the real reality of rape that so many of us have experienced, that folks have written powerfully about for such a long time that is just not being considered by these sorts of statements.

Never mind that the crazy idea that women might have bodily autonomy and might voluntarily engage in fully being a human being, which also includes us being able to have sex in the same way that other people are. And so, that to me, was a wonderful point of focus to be able to say this is a long history of systemic control that America has always had that not only sort of is stuck in endless conversations we can have about the Madonna-whore paradigm but more importantly, is just like you as a person because you are capable of becoming pregnant, you’re less than other people.

So, we have laws that we don’t talk about often or we like to talk about as though they are quaint and archaic and those include everything from the law of coverture, literally about the word coverage. So, when you became married, you were covered by your husband, and so, you didn’t have to deal with the difficulty of having the responsibility of rights, which meant that you couldn’t own property. You couldn’t inherit property even from your own family, and what was amazing during this research is that it found that the laws of coverture are persistent through states until the 1940s. Florida had laws that prohibited women from owning their own property through the 1940s.

And then, again, we still didn’t have full societal participation. Initially rape was a property crime against one’s father or husband because their property had been defiled. And that seems archaic until you zoom into the 20th century when you could not serve on a jury as a woman in all 50 states until 1973, and until 1974, you could be denied permission for a credit card if your husband didn’t give you permission to have it because the presumption was that he obviously would be the one paying for whatever purchases you were making of hats and gloves. That’s not that archaic. Jaws came out in 1975.

That’s how recent this stuff is, right, and I want folks to understand those things because these laws are not vestigial. This is just the long continuum. That’s all we are talking about, and so, I just wanted to say that this is not a conversation about abortion. This is a conversation about equality for every human being, whether or not they are capable of becoming pregnant and just within the spectrum of our experience. So, I think it’s an opportunity for us to ground this more broadly in the way that we have been marginalized. We’re not asking for anything. We’re demanding that we be treated equally as we have always been told we should be, and so, that’s a conversation I’m really excited to delve into with you all.

This is not a conversation about abortion. This is a conversation about equality for every human being, whether or not they are capable of becoming pregnant.

00:20:23 Bonnie Stabile:

Yes. I’d like to talk a little bit further about this persisting inequity because a lot of people like to respond to that by saying, ‘Well everything seems fine for women.’ People that don’t want to engage in that will say, ‘I don’t see how you don’t have … look at you, you’re a professor or you’re a lawyer and everything is fine.’ And what I would say is one of the things that we’ve investigated in the context of a book that I’ve written, which is coming out later this year, which is called Women, Power and Rape Culture, is looking at different avenues that lead to these inequitable outcomes and end the inequitable policies and laws, and those things include how women are characterized.

And it’s partly a vicious circle because laws that, for instance, suggest that women are less capable, for instance, like 72-hour waiting period, which really suggests that women don’t know their own mind. You know, you need time to think about this, so there’s got to be this legal intervention to prevent you from exercising your own autonomy.

Laws suggest that women are less capable—for instance, the 72-hour waiting period really suggests that women don’t know their own mind.

So, I guess I’d open it up to ask two questions, one is how do these characterizations persist and what are their implications that you see? Because Elizabeth, you’ve brought up some interesting laws, that like you say, are very recent history and even not history because the implications of them are still playing out.

And I wonder, Michele, in your other podcasts, what ways do you see this sort of characterization of women as sort of lesser than, which results in the legal prescription that makes that so?

00:22:03 Michele Goodwin:

Sojourner Truth, 1864. (Library of Congress)

It’s a great question and we can’t divorce it from virtually any aspect of life, and we can’t divorce it from the positionality of different groups of women, and here’s what I mean by that. To the extent that stereotypes persist in our society, explicit biases, implicit biases, these inform us about, or as a society, have helped to shape how society regards certain groups of women in society. So, if we think about, for example, narratives about welfare queen. Sort of bad mom. All these things have this rootedness to help justify immoral systems.

I like to refer to Sojourner Truth’s speech from back in the 1800s. Really, it’s a kind of original reproductive justice speech and most people remember “Ain’t I a Woman?” for its talk about chivalry, which she does. She talks about how no one opens a carriage door for a Black woman, puts anything down, so that their boots don’t become spoiled.

What’s fascinating is what’s papered over in the beginning of the speech and she says:

“And I bore 13 children, and so, I’ve had each one snatched from my arms and nobody heard my cry but God. Ain’t I a woman?”

And we’ve found these ways to kind of paper over what has been a brutal history, an immoral history in the United States, carried out by private parties and also by government. Federal government and also state government.

Let’s be clear that the Fugitive Slave Acts were passed by Congress. These were not just wayward Mississippi law makers. We are talking about the United States federal government becoming complicit in perpetuating the institutions of slavery, and the institutions of slavery were perpetuated on notions of inferiority and lack of humanity altogether, lack of personhood for Black people as a foundation.

A flyer warning Black people to avoid speaking to “watchmen and police officers,” on display at The Museum of African American History in Boston. (moonjazz / Flickr)

When you read through the legislative transcripts in history about the 13th Amendment, which finally abolished slavery, what you see are the persistent arguments about we must keep our “property.” So, even after the Civil War, even after the Emancipation Proclamation, you still have federal legislators who are just like, I can’t bring myself to call Black people human. I can’t bring myself to call Black women human. I must continue to call them “property” even after the Civil War has been won by, you know, parties seeking to defeat the Confederacy.

Even after the Civil War, even after the Emancipation Proclamation, you still have federal legislators who are just like, ‘I can’t bring myself to call Black people human. I can’t bring myself to call Black women human.’

And so, I think that if we root ourselves in history, then we can see where this thread takes us up until the present time in terms of really, shall we say, a really denigrated view of Black and Brown women and Indigenous women, and if the view starts off that way, we must ask ourselves then well, what has changed? What has changed? I mean, have we had the moment of thinking about empathy towards the lives of Black women, and it’s hard to actually find that space where we have actually ever had that as a normalized view.

And let me just make two quick points and I’ll stop, which is that sometimes I think about what must a mom have told her child the night before the auction, the night before that child was about to be sold off—what in the world do you leave that child with, knowing that you’ll never see that child again? There’s no train that’ll take you to that child, no bus that’ll take, no law that supports you ever being able to be with your child, and yet, you must help that child to understand that she is human, that she has worth and that despite a society that compares her to chattel in the field and legally makes that her status that she is more than that.

And we are a society that’s never bothered to ask ourselves that question in any kind of sustained view. For some of the people on this call, this will be the first time that they’ve ever actually had to think about that question. And so, if we start there as a foundation, I think it’s hard to think through what characterizations haven’t persisted over time despite the fact that we see these Brown women on this call today.

00:26:41 Bonnie Stabile:

Thanks, Michele. Yeah. I wonder Madiba, if you would care to elaborate on any aspect of that, those characterizations and as you see them manifesting in law and policy.

00:26:55 Madiba Dennie:

Absolutely. I think something that comes immediately to mind is about who is forced to be a mother and who gets to be a mother, who can choose to be a mother and who has it forced upon them or taken away from them forcibly as well.

I think something interesting, something cruel and awful, is say you look at the January 6th insurrection for example—there were two driving beliefs when you look at the belief system and opinions of the people who participated in that act of domestic terrorism. One was believing the big lie that Trump won the election, and the other was believing that the white population is shrinking and that they’re going to become a minority. I think there’s something not awesome about being a minority in this country it might seem…

Who is forced to be a mother and who gets to be a mother? Who can choose to be a mother, and who has it forced upon them or taken away from them forcibly?

I think there’s a reason why this is happening at the same time as this like anti-abortion legislative push is happening. It’s because there’s this concern among certain sections of the population that white women need to be cranking out more babies—that white women are going to like make the white race a minority and white men in particular need to keep that power, and so, abortion needs to be restricted, so that white women can have more babies.

And then, if you look at that from … let’s take a backwards step. Let’s talk about the Black woman’s perspective. Let’s talk about how during slavery, Black women’s reproductive systems or reproductive rights was literally the site of capitalist reproduction, like having our wombs used to produce more slaves.

So, then you have this system of women being forced to have more children, and then, forcibly having those children taken away from you. So, at no point in history, like starting from slavery and going to now with abortion regulations and access to things like birth control, on other aspects of reproductive control, at no point have Black women been able to control our pregnancy, control whether or not we can choose to give birth and choose whether and how to raise those children. These are things we’re still very much struggling with. Again, like I wanted to make clear: It’s not just a matter of refusing to have a kid but also if you wanted to have a child and can’t.

Professor Goodwin mentioned, you know, sterilization in Mississippi appendectomies. Like this is a thing that very much still happens. It seems barbaric and outdated because it is but it is still very much happening, and to link this back as well to the democratic process, that really shows how with these restrictions on pregnancy and without the full support of people who can become pregnant, they’re not going to be able to fully participate in the democratic process. Like if your rights and liberties can be curtailed simply because of whether or not you’re pregnant, you’re not able to access the right to vote in like many states. Yeah.

You can’t fully be a member of the body politic. You’re losing control over your body as well as the body politic and that’s something that I don’t think this country has really fully grappled with.

00:30:31 Bonnie Stabile:

Yeah. I think that Elizabeth, you’ve talked about having meaningful equity, right, rather than just sort of rhetorical equity and certainly as recently as just a couple years ago, women were sterilized in the California prison system against their will and without their knowledge. So, we know that these things persist. So, it really is about who gets to decide, you know, and who has meaningful rights.

In that regard. Elizabeth, I didn’t know if you’d want to say more about your discussion about what constitutes meaningful equity and how abortion relates to a larger access to that exercise of personal autonomy.

00:31:10 Elizabeth Hira:

Thanks, Bonnie. I think its important, again, this sterilization is not historical. ICE was doing it quite recently, right, and we still don’t have full coverage of all the people who were actually sterilized. We don’t actually know what they were told, and they had no agency in that conversation.

 A 4-year-old at the Families Belong Together march in D.C. in 2018.  In 2019, about 40 womenwere subjected to invasive non-consensual gynecological surgery while in the custody of U.S. Immigration and Customs Enforcement (ICE) at Irwin County Detention Center in Ocilla, Ga. (Sasha Patkin / Flickr)

So, this is still very much an active practice and I think that’s a theme I want to lift up—that these are not historical harms. There is what meaningful equity actually looks like is full economic, political, philosophical, lived participation, and one of the soap boxes that I have been on for a long time is that we are … there’s two prongs to this.

First, I think the people who are responsible for shaping our society need to be asked if they are building a society in which it would be fair for people to want to bring children. I need you to create a world where you’re dealing with the reality of water scarcity as a result of climate change. If you’re not willing to create that world through your structural policy, how dare you ask me to put a little human into it. If I as a woman of color have to worry about whether my child is safe from being murdered by the police with impunity, how dare you tell me that I have to bring a child into that world. So, there are responsibilities that frankly are being shirked that need to be addressed before you ask me to do any of this nonsense.

Second part of that is to Madiba’s point: Who gets to decide what those structures actually look like? You all know that the reason we’re all together today is because of a Supreme Court case. In the history of the United States of America, there have been 115 Supreme Court justices. 108 of them have been white men. That’s who gets to decide what happens with us and our bodies. We’re 20 percent of the population as women of color.

In the history of the United States of America, there have been 115 Supreme Court justices. 108 of them have been white men. That’s who gets to decide what happens with us and our bodies.

Sonia Sotomayor is the only woman of color who’s ever served on that court and this last week, we all saw a white man made a decision to not wear his mask and took that woman who was already at risk, the same health disparities that we as people of color experience in this country, she had to step down from her seat as the only woman of color in this history of the United States because of a choice that a white man made.

I just think it is so important that we say these things plainly. I know that in polite society, it’s difficult to talk about these things because we have to say we live equally, but these are very concrete examples that are contemporary of how we don’t actually have literally an equal seat at the table. We are forced to step away from the table where the decisions are being made that will affect all of us.

I have statistics for days, right. I’m a Brennan Center lawyer. That’s what we do. The reality of it is so concrete and I think some of the takeaway … I like to do sound bites because I want you to have things to tell your community about when you step away from this call because these things are visceral.

2011 was the first year that the women in the United States House of Representatives had a bathroom near the House floor. Prior to that, they had to walk away from the floor. They had to walk away from votes if they wanted to use the restroom facilities. These are physical manifestations of how these places were just literally not designed for us, right.

In the entire history of Congress, I want you to think about the fact you don’t have parental leave. You don’t have universal childcare. We are begging for paid maternity leave. We have to have babies and go back to work and expect that we are just on our feet the next day. In the history of the United States Congress, only 10 people have given birth while serving. If you had to be in the Congress with that experience, you would absolutely lift that up as a policy. Anybody who has ever known anyone who has had a child knows that.

2011 was the first year that the women in the United States House of Representatives had a bathroom near the House floor. Prior to that, they had to walk away from floor votes if they wanted to use the restroom facilities.

Again, I could go on for days with this because something that’s most stunning to me, we’re having these conversations and driving with these questions, and I think we really fundamentally we just need to take these seats. There’s a whole concept I have developed on my sideline work. I call it “guerilla equality “where like I don’t want to have more conversations. I don’t need another think piece in The Atlantic about whether we can have it all. You know what I need? I need seats in your Congress, that’s what I need, and right now, we have the most diverse Congress we’ve ever had in American history.

It is worth celebrating. It is great. It is 77 percent white. It is 74 percent male. That is who gets to decide what happens to you, and we as women, we have economic instability as a result of, again, patriarchy is built into the system and until we seize economic power, until we seize political power, this will always be us on the sidelines literally doing ESPN commentary about whether we have rights or not. I’m just tired. I’m just tired of it.

I don’t need another think piece in The Atlantic about whether we can have it all. You know what I need? I need seats in your Congress, that’s what I need.

00:35:37 Michele Goodwin:

Bonnie, if I can just jump in right there before your next question and that is to perhaps capstone in a way what Madiba and Elizabeth have offered. If we look at maternal mortality in the United States, and I think that this cements it, we know that a person is 14 times more likely to die by carrying a pregnancy to term than by having an abortion. These are just the facts. This is what we know. The World Health Organization compares the safety of an abortion to a penicillin shot. So, we know abortions are very, very safe.

We know life is dramatically risked with pregnancy, and so, if we just started there, that would be enough where we would say for policy, for economic reasons, then if a person wants to terminate a pregnancy, let that person terminate a pregnancy because we know that they’re 14 times more likely to die if they decide that they want to carry a pregnancy to term. We could leave that to them to want to do but those statistics would govern every other area of healthcare except this.

But then, let’s add to it. The United States ranks between 50 and 54 in the world in terms of maternal mortality. It’s safer to give birth in a former genocidal war-torn Bosnia than it is in the United States or in Saudi Arabia, a place where only recently it was made legal for women to even be able to drive, but safer to be pregnant there.

Then let’s dig a little bit deeper. We know that for Black women, they’re three and a half times more likely nationally to die by carrying a pregnancy to term in the United States than their white counterparts and if we drill down to states that have enacted some of the most draconian anti-abortion legislation, we know that in certain counties that multiplies to 10 times more likely to die by carrying a pregnancy to term. 15 times more likely to die by carrying a pregnancy to term.

This is data that we know coming from those very states. So, it’s not like in Mississippi they don’t know this data. It’s not as if the Texas Department of Health doesn’t know this data. They’re producing the reports that tell us exactly this, so then how else should we discuss, describe, exactly what that is when lawmakers enact laws that block a person’s ability to be able to terminate a pregnancy knowing on the other side of it that death is a reality, a potential reality, a probable reality for a certain sector of that population, and we don’t name it.

It is a virtual death sentence, and it is hard to take seriously legislators who claim that they enact these abortion provisions out of a care for health and safety of women in those states. One cannot take that seriously at all and we need to call it out quite clearly. We need to make that connection between maternal mortality and also these anti-abortion provisions that are being enacted, and our failure to do so is our ignoring then this grave element of the problem.

It is a virtual death sentence, and it is hard to take seriously legislators who claim that they enact these abortion provisions out of a care for health and safety of women in those states.

00:38:48 Bonnie Stabile:

Thank you, Michele, and you’ve raised a lot of medical and scientific facts there that of course have great pertinence, and Elizabeth, you talked about representation and the imbalance and I think that leads me to thinking about Jen’s piece in the Brennan Center article collection, which talked about that very fact, a lack of understanding about menstruation, and of course, Jen is a scholar known for her work on menstrual equity. So, Jen, can you talk about how that’s pertinent to this discussion and your piece there?

00:39:21 Jennifer Weiss-Wolf:

Yeah. Thanks, I was thinking that when Elizabeth started with her very impressive Brennan Center style statistical string. So, folks on the call may know that that is sort of the side topic that I’m utterly fascinated with, which is the politics of menstruation and how menstruation also leads to this question of participation and equity in broad society when our bodies themselves are a subject of everything from ridicule to shame to misunderstanding, and that couldn’t have been more broadly displayed back when S.B. 8 went into effect and Governor Abbott stood up and said, ‘What’s the big deal? You still have six weeks to get an abortion.’

Whether he was being purposely dense, or you know, trying to use a clever talking point, hard to say. I’m going to veer towards actually dense about the mechanics of women’s bodies, but to not know that the way pregnancy is counted when we say somebody is six weeks pregnant, that means six weeks from the date of their last menstrual period if their period comes every 28 days like clockwork.

Meaning that when you are having your period, you are zero weeks pregnant. Meaning when conception happens, you are two weeks pregnant. Meaning that the first time you might accurately deduce that you are pregnant through a store-bought pregnancy test, which would be the day of a missed period, you’re actually four weeks pregnant. So, that six-week marker, means that somebody, at best, has two weeks in which to obtain an abortion—and of course that doesn’t even factor in, you know, all of the purposeful traps that have been laid by state legislators from mandatory waiting periods to the ways that regulations have made it such that there are so few abortion providers able to exist in certain states.

So, if there’s travel, if there’s all kinds of incidental activities that somebody has to undertake to get themselves to an abortion clinic or to an abortion provider, the chances of them being able to do so in that two-week period are even slimmer. But that’s just a basic.

Menstruation is something that people have really chosen not to talk about in public, in polite public ways and that is just such an extraordinary disservice to all of us, because truly, if this is the reality of our lives and we’re experiencing it and talking about it with each other but somehow not out loud, and then, therefore our policies don’t actually reflect or consider just this very basic basic aspect of our lives. I mean, we can talk for sure about the inequitable experiences across the board and the particular disparities felt by Black women and by Brown women, but menstruation is this one common denominator and that is utterly ill considered and therefore only works against us.

00:42:51 Bonnie Stabile:

Thanks, Jen. Yeah. I think the philosopher Martha Nussbaum has written eloquently about the role of shame in perpetuating injustices and inequity by making these things taboo to talk about has also made women’s presence in society taboo at times. Famously, Donald Trump in some of his speech that I’ve analyzed has talked about women bleeding as being disgusting and needing to keep women kind of to the side, and that’s of course a global phenomenon that we’ve witnessed and that results in perpetuating inequities and lack of representation.

I see there’s a couple of questions that I’m starting to see come up in the question and answers and I think they’re pertinent. One person has asked about the role of religion in this whole discussion, and I would note that it just came to my attention yesterday that the Pope made a statement to Elizabeth’s point about a choice of reproduction of whether or not to reproduce, particularly under current circumstances of dire climate threat and others that confront us. The Pope made the statement that people that chose not to have children were being selfish. So, those religious threads persist. So, I guess Michele, if you want to take on the role of religion in this policy context.

00:44:24 Michele Goodwin:

So, I’d like to take a look at the arc of that, right, to help us understand where we are because otherwise, we’re speaking in confused ways. So, as Justice Blackmun wrote in Roe v. Wade after canvassing history, abortion had not been criminalized and illegal in the United States, and it turned out with the Catholic church, it had also not been banned prior. Abortion becomes an issue of political nature in the United States around the time of the Civil War. It’s directly connected with racism and white supremacy.

The leaders of the political movement were actually new doctors in this new field called ob-gyn who were white males, who galvanized with the AMA, which banned women and people of color from membership, so that they could get midwifery out. Like if you think about it, right, there were no persons with lab coats and stethoscopes running around the plains of Africa or in Asia. It wasn’t right. Nearly 100 percent of reproductive healthcare had historically, for millennia, been performed by women. With the professionalization of obstetrics and gynecology, there were men who came in who literally wanted to push women out.

Nearly 100 percent of reproductive healthcare had for millennia been performed by women. With the professionalization of obstetrics and gynecology, there were men who came in who literally wanted to push women out.

Read the works of Dr. Horatio Storer and Dr. Joseph DeLee. They were at the forefront of the movement, and they said they needed white women to use their loins and go North, South, East, West. These were the people who pushed anti-immigration agendas. Agendas to push women out of reproductive medicines, which they successfully did.

We went from about nearly 100 percent of reproductive healthcare being done by women in the 1800s to about one percent from the beginning of the 20th century. This tells us a story about capitalism, about greed, and it’s really quite alarming to read their works and to see how they described women doing reproductive healthcare. You see a lot of male insecurity coming out of that.

But to this point about religion, it’s interesting about how a slice of religion tends to monopolize the story here. In 1966, Dr. King received an award from Planned Parenthood. He starts off that speech with saying that if a group of people came from the heavens above to the United States, they would say that it is a nation that’s governed by insane men. He goes on to talk about how there was so much in common between women’s rights movement and a civil rights movement. He used the word “cruel” to describe what it means when a state forces people who don’t want to be parents to be parents—that it is cruel to bring a child into a world where it is unwanted. His words. At the time, the treasurer of Planned Parenthood, Prescott Bush, the father of George H. W. Bush.

There are cases where there was advocacy for abortion rights to become even more robust following Roe to help poor women, and some of those cases were brought by people of the cloth. I’m talking about religious clergy saying, ‘I am here to support the women in my congregation.’ And so, when we talk about religion today, what we’re basically talking about very often is Catholicism. I was baptized and confirmed a Catholic, so I can speak about this, but Catholicism is not the only religion of the world. It is not. And to the extent that we should think that Catholicism should govern you as policy or policy of any country, I think is deliberately short-sighted.

So, I would say that these continue to be important questions, they do, but we must bring to the discussion history, nuance, and not isolation of ideas or this sort of dominant theory of there being one religion that should capture how we think about religious discourse.

Let me just finally say this, a religion of humanity, of kindness, of grace, is I think, the way in which we would want to elevate the conversation and not in terms of punishment, shame and stigma. We should be well beyond that in 2022 thinking that those theories of religion should govern how we think about people, humanity and human rights.

00:48:47 Bonnie Stabile:

So, we have a question from David Armor about laws in Latin American countries where the opposition or the banning of abortion is related to religious sentiment on the part of the country, and though we are speaking primarily here of U.S. policy and the states, he’s asking what your position is on the legal context of abortion in places such as these countries where religion has been a predominant factor. Do you oppose such laws is his question?

00:49:23 Michele Goodwin:

Well, I think first is to understand that actually those laws are falling away, which makes the U.S. look so draconian. Whereas in Latin American countries, their Supreme Court and their legislators are elevating the rights to be able to terminate a pregnancy and moving away from criminalization. We, in the United States, are going in the opposite direction.

I think historically those have been problematic because in countries where abortion typically had been criminalized what’s also been swept into that has been the punishment, the criminal punishment, of girls and women for having miscarriages and also for having stillbirths under those same umbrellas and without much distinction between the two. So, if that is the question that’s in the chat—do I support countries that use religion as a weapon against human rights?—no I do not support that.

A 2017 March for Safe Abortion in Argentina. (International Women’s Health Coalition / Flickr)

00:50:30 Jennifer Weiss-Wolf:

If I can just jump in with a seconding of that and to say that part of our inspiration when we actually created this series was a piece that had been published in the Times right around the same time that shared that the United States was in the company of Poland and Nicaragua as the three countries where abortion rights were regressing, and we stood apart for that.

In fact, abortion access and abortion rights were increasing everywhere else in the world and not only were we in the company of those two nations for that regression reality but as well that that was a sure sign of degrading democracy, that regression, and that was something that really, really struck us, again, as folks who think about systems of democracy and justice daily.

We’re aware of the dysfunctions in our democracy but to see so clearly how that landed us when it’s becoming clearer and clearer that our democracy is in great jeopardy, that that is one of the sure canaries in the coal mine.

00:51:37 Madiba Dennie:

I would also just like to tack on there with relation to religion and democracy that the kind of laws we pass reflect the kind of country our legislators want us to be, not necessarily what the country wants to be because we’re struggling to have a truly representative democracy but the kind of country that the legislator wants to see.

So, I think it’s important to look there at the kinds of laws that are being passed, including abortion regulation and the motivations behind them and that is shows who they’re working for and what they’re working for and who they consider as a legitimate member of the political and legal community because the vision we’re seeing is one that’s for a white supremacist, a particular sect of Christian.

It’s not even right to say Christian, like a sect of Christianity, like a Christo fascist movement that they’re constructing the legal guidelines that like govern society near explicitly to solely benefit like white men of a certain religion and a certain class and wealth.

00:52:43 Bonnie Stabile:

So, I’m looking at the clock and also looking at some of our remaining questions and the place I wanted to get to in our conversation was: How do we consider the policy landscape around abortion and democracy and their intersection? And I wondered if we could move ourselves towards sort of some tangible things that people might work towards in rectifying some of the things that we’ve identified as being of concern.

Two questions that we got, one was about how the ERA might affect outcomes here and there was another question from one of our board members about just Medicaid coverage in the states. So, I don’t know what kind of direction you want to take it in but if you’re thinking about giving people an idea of something they can do or work towards or what policy mechanisms are out there before us, that’s something I would like to hear any of you speak to.

Marchers hold signs that say, “ERA USA” and “We Are not Asking for Permission, We Want Equality Now” during the Woman’s March in Manhattan on Jan. 18, 2020. (Ira L. Black / Corbis via Getty Images)

Madiba Dennie:

I think as an attorney my gut reaction is like use the laws you have, one, and two, fight for better ones. I guess that second category, your fight for better laws also has some subcategories to it, as in that you need to think about who is making the laws, who is interpreting the laws, who is enforcing these laws. So, it calls for really just like a structural legal overhaul of what the legislator looks like, what the courts, especially what the Supreme Court looks like and so forth.

Also, being a lawyer aside, we did note up in the beginning that Elizabeth and I got ourselves arrested yesterday, so I would say there’s room for breaking the law as well. Civil disobedience is an important part of this country’s history of protest and resistance.

00:54:39 Michele Goodwin:

I’ll join in here and leave Elizabeth to close it out then, which is to say that voting matters and this conversation, as we’ve talked about, democracy backslides whenever we deny the humanity of individuals to be able to govern their own bodies. It’s a fundamental part of human rights, the ability to be able to determine how you use your own body and also the ability to move your own body throughout, which is something that we don’t sort of think about often with these conversations, but they do matter.

Democracy backslides whenever we deny the humanity of individuals to be able to govern their own bodies.

When we see the attacks on voting rights as we have, the denial of people even being able to even receive water from someone else after sitting in line or standing in line for hours in a place like Georgia, the various ways in which voting rights have been gutted in Texas and other places connects to this conversation. So, if you want to see the advancement of reproductive health rights and justice in the United States, if you want to see the legacy of Roe continued then it is important to vote and let us just remember that it was 50 years ago that Black people were having to guess how many bubbles on a bar of soap in Mississippi to vote, how many jelly beans in a jar.

I know many people don’t know that because it represents parts of our history that we just simply don’t talk about but that’s how degrading these legislative enactments and social practices were. So, these are not far from memory. It’s not far from reality, and we have to protect voting rights and it will serve as a foundation to making sure that we are able to preserve a democracy, have a true democracy some would say, and then, be able to build it forward.

00:56:25 Bonnie Stabile:

Thank you, Michele. So, I invite Elizabeth or Jen, if you have any final thoughts that you wanted to share as we round out the hour.

00:56:33 Elizabeth Hira:

I’ll leave it to you to close out and I want to build on the points that Michele and Madiba just made. One of my favorite … all of us have heard Abigail Adams from the beginning of our republic saying, “Remember the Ladies.” And I will say to you the part of her letter that is often left out when she says:

“If particular care and attention is not paid to the ladies, we are determined to foment a rebellion and will not hold ourselves bound by any laws in which we have no voice or representation.”

We are the legacy of that. We are the ones who must pick that up, and so, I think that like we are reaching a point where these laws are very clear. They’re not made by us. They’re not made for us, and guerilla equality demands that we take these things into our own hands. So, I think it’s what Madiba was saying, it’s supporting things like telemedicine access to abortion.

We are reaching a point where these laws are very clear. They’re not made by us. They’re not made for us, and guerilla equality demands that we take these things into our own hands.

Three million women have already done DIY abortions.

That is literally what happens. You take a pill at the facility, and then, you go home and have your own abortion, right. We start sharing information like that and saying that these two abortion methods need to be made available and safe and legal everywhere. It’s a very concrete example of sorts of things that can change. And so, I would argue that that’s a policy change we’ve not been fighting for, but every woman on this call needs to tell every woman that she knows that she needs to run for office, needs to take those seats and be in the state legislators that are making these decisions.

The center for American Women in Politics and found that of sitting state legislators, women who actually had won their seats, they were discouraged actively by political officials from running, right. So, we need to hear it seven times before we even consider running. I’m telling every single one of you: Run. I will say it seven times if I have the time on this call, but we cannot change these things until we’re seen as political power. So, all of the effort and energy in the world will not change until you become the people making the decisions. So, I encourage you to do that yourself. I encourage you to encourage others to do it.

00:58:33 Jennifer Weiss-Wolf:

I know somebody had asked an ERA-specific question and talking about canaries in the coal mine and where America stands as a democracy to be one that does not have sex based equality written into the Constitution, I think that almost says it all. And in fact, when we see the Supreme Court’s action in the Dobbs case and on what’s left of the privacy standard that was established in Roe, we only have to gain when we have a new toolbox and new arguments based in equality to draw from as we consider the future of expanding and considering our equality, our equity, our reproductive autonomy, all of the above.

I can’t believe how extraordinary this past hour has been. When I still think back to that Slack chat that started on Labor Day weekend, that ended up in a conversation, a face to face Zoom box conversation as soon as the holiday weekend ended, and how excited we were when we kind of realized we could be off to the races writing these short pieces and have the privilege of having them published with Ms. and to now be able to have these full throated three-dimensional conversations with each other, my heart is so full. I can’t even begin to put that into words, but Elizabeth can surely have the last word. So, take it away my colleague and friend.

01:00:01 Elizabeth Hira:

I apologize for adding this on. One of the concrete things I have been talking about and I think it’s really important for all of us to do: When you see a thing that makes you feel wrong in your gut and say, ‘That’s not right,’ instead of asking how you can change it, move through the world as though what is happening is wrong. This comes back to that David’s question, like is it right for us to be having these laws? Why don’t we start refusing those questions? You are an equal human being. Anything that does not reflect that needs to be changed and you have the agency to change it.

When you see a thing that makes you feel wrong in your gut and say, ‘That’s not right’—instead of asking how you can change it, move through the world as though what is happening is wrong. Anything that does not reflect that needs to be changed, and you have the agency to change it.

So, maybe spreading that word instead of gingerly pussy footing around the question of whether we deserve to be equal and full humans is the first paradigm shift that will enable you to take the power that you have.

01:00:40 Jennifer Weiss-Wolf:

When we wrote our piece, we did not put a question mark at the end of: Is abortion essential to democracy? We stated it. We didn’t ask it—and we’re not asking today either. So, anyway, I hope you all come away from this conversation surely with more questions in mind but hopefully with lots of good answers and energy in mind too.

01:01:11 Bonnie Stabile:

So, thank you so much to all of the panelists here today for taking the time to be with us. Thank you so much to Ms. Magazine for this collaboration. Thank you to our audience for being here and listening, and we want to be in dialogue with you.

Of course, this was just an opening gambit for this conversation. There are many more facets of the abortion issue that need to be discussed, but of course, this is a critical one in our mind, which has to do with the intersection of abortion rights and democratic freedoms. So, we will perhaps be hosting other panels that consider other facets of the question at hand. Thank you so much.

Ms. and the Brennan Center (BC) for Justice, a nonpartisan law and policy institute at the NYU School of Law, co-published 11 essays as part of a groundbreaking series, “Abortion Is Essential to Democracy.” In the series, BC experts argue that voting rights and democracy are connected to abortion access. The essays all directly comment on the decision for the Supreme Court to hear oral arguments in Dobbs v. Jackson. Read all 11 essays here.


Roxanne Szal (or Roxy) is the managing digital editor at Ms. and a producer on the Ms. podcast On the Issues With Michele Goodwin. She is also a mentor editor for The OpEd Project. Before becoming a journalist, she was a Texas public school English teacher. She is based in Austin, Texas. Find her on Twitter @roxyszal.