Dobbs, Abortion Rights and the State of U.S. Democracy

The United States was officially designated a backsliding democracy in late 2021—a full six months before the fall of Roe v. Wade. At the time, journalists warned that such a descent is precisely when “curbs on women’s rights tend to accelerate.” But can a country that has never truly addressed women’s equality ever be a thriving democracy? And are democracies that have abysmal records on gender equity destined to falter? Explore “Women’s Rights and Backsliding Democracies“—a multimedia project comprised of essays, video and podcast programming, presented by Ms., NYU Law’s Birnbaum Women’s Leadership Network and Rewire News Group.

Melissa Murray and Jessica Valenti at the 2023 “Women’s Rights and Backsliding Democracies” Symposium. (Brooke Slezak / NYU Law)

This is an excerpted transcript from a lunchtime keynote discussion between Melissa Murray and Jessica Valenti that took place on April 14, 2023, in New York City at the NYU School of Law symposium, “Women’s Rights and Backsliding Democracies.” The state of play for abortion, in particular, was chaotic with multiple rulings being issued in real-time on mifepristone. So too were state legislatures roiling with controversy, from Tennessee to Florida to Texas.

Melissa Murray is the Frederick I. and Grace Stokes professor of Law at NYU Law and the faculty director of its Birnbaum Women’s Leadership Network. She is the co-creator, co-producer and co-host of the award-winning podcast, Strict Scrutiny. Jessica Valenti is a feminist writer and author, and the creator of Abortion Every Day.

The full discussion can be heard on our corresponding video link.

Melissa Murray: Let’s start with the elephant in the room: the mifepristone rulings. A judge in the Amarillo division of the northern district of Texas has issued a decision that stays the FDA’s approval of mifepristone. Another competing ruling in the western district of Washington requires the FDA to continue making mifepristone available to those in a number of blue states which have filed a challenge of their own to maintain mifepristone access. We have governors in states like California and Massachusetts stockpiling both mifepristone and misoprostol. Is it chaotic by design?

Jessica Valenti: Yes. The point is to sow so much uncertainty that even in places where abortion is legal, people don’t know if they can get the care they are legally entitled to. Doctors will be afraid. Pharmacists will be afraid. And because this is all changing so quickly, that feeds into that chaos too.

Melissa Murray: In June 2022, the Supreme Court issued its much-anticipated decision in Dobbs, which upheld by a 6-3 vote a Mississippi law that banned abortion at just 15 weeks—and by a 5-4 vote, overruled both Casey and Roe. The Court insisted that its decision did no more than return the fraught and vexed question of abortion to the democratic process and to the people, who were rightfully the ones to decide this question. So, is Judge Kacsmaryk “the people”?

Jessica Valenti: We always knew that it was never about state’s rights. It was always about banning abortion in every single state in every possible way.

What has been really frustrating to me in Kacsmaryk’s ruling is this idea that they’re doing something for women’s health, that they’re protecting us. It just adds salt to the wound. It makes me a little more furious than usual because it’s so offensive, so insulting and so obviously false.

Melissa Murray: What Jessica is referring to is the plaintiff, the Alliance for Hippocratic Medicine, arguing that mifepristone is unsafe for women despite the FDA’s approval that has been in place for over 20 years. What is this about? Is this a backlash to women’s progress? Is this an effort to put us back into a particular box? I mean the women’s rights movement has been in place since the 1970s. Ruth Bader Ginsburg helped to read women into the Equal Protection Clause. Abortion rights is only part of that. Again, this is the question this symposium asks: Is there more to come, and how will we as women fit into a society that purports to be democratic without necessarily taking into account the voices of women?

Jessica Valenti: I think so much of this is about punishment. I don’t think it is a coincidence that they went after abortion medication specifically. Abortion medication completely changed the way that people were able to get abortion care. You can have an abortion in your home while watching Netflix privately. We took away their ability to publicly shame us at clinics, and that made them angry. They don’t want abortion to be easy and safe and that is part of the big hypocrisy.

Melissa Murray: Punishing women but for what? What are we doing?

Jessica Valenti: Existing. Having our own lives and making our own decisions. And I think with abortion specifically that is very much you controlling your body, the trajectory of your life and of your family.

The point is to sow so much uncertainty that even in places where abortion is legal, people don’t know if they can get the care they are legally entitled to.

Jessica Valenti
An abortion rights activist holds a sign with a sketch of Judge Matthew Joseph Kacsmaryk and former president Donald Trump. She attends a rally outside the Supreme Court on April 14, 2023. The Court temporarily preserved access to mifepristone, a widely used abortion pill, in an 11th-hour ruling preventing lower court restrictions on the drug from coming into force. (Probal Rashid / LightRocket via Getty Images)

Melissa Murray: Let’s connect some of the dots.

Two years ago, there was a baby formula shortage and one of the things the Biden administration wanted to do was provide more money to manufacturers so they could put more supply into the market. This was met with objections from a number of Republican legislators and one of the more interesting arguments against subsidizing the production of baby formula was that women could simply breast feed.

When you think about it now, with the backdrop of what is happening with reproductive rights, it seems even more compelling that this is not necessarily about mifepristone. It’s not about abortion. It’s not about baby formula. It’s about this natural role of women to be mothers and the idea of a woman avoiding that or determining it on her own terms—that’s the problem.

Jessica Valenti: It’s about reinforcing traditional gender roles—and also reinforcing the traditional gender binary. It is not a coincidence that we are seeing all of these attacks on abortion at the same time that we’re seeing attacks on trans rights. They are completely interconnected.

Melissa Murray: Is there a connection between other assaults on individual civil rights? I call them “access to knowledge.” We’re seeing libraries being defunded in places like Missouri. Florida apparently can’t teach history at all. What’s the connection that undergirds all of this?

Jessica Valenti: Let’s take Florida. Gov. Ron DeSantis signed a six-week ban in the middle of the night. It is a state where the libraries are empty. You don’t have information at students’ hands.

Then there are bills that strip away all sex education, any mention of contraception or how bodies work. They are trying to push a bill that says you can’t teach about periods before sixth grade.

On top of that, they are overfunding these crisis pregnancy centers which have relationships to evangelical Christian adoption organizations and private adoption organizations.

In states like Tennessee and Alabama, they are trying to streamline the adoption process. They are trying to make it easier to terminate parental rights. This is clearly a conversation about reproductive justice. It’s a million things and that also feeds into the chaos.

This is not necessarily about mifepristone. It’s not about abortion. It’s not about baby formula. It’s about this natural role of women to be mothers and the idea of a woman avoiding that or determining it on her own terms.

Melissa Murray

Melissa Murray: So, it feels like everything is on fire and that’s possibly by design. We also saw the expulsion of two state legislators from the Tennessee statehouse. They were protesting against gun violence and the state legislature’s refusal to undertake steps toward meaningful gun reform. There were actually three of them: only two were expelled; one was not expelled by a margin of one vote. What was interesting to me about this was that for both of the two young Black men who were expelled, the votes were incredibly lopsided. For Justin Jones the vote was 72 to 25, which suggests not just an antipathy for the protest but also perhaps the effects of gerrymandering.

Jessica Valenti: The connection between abortion and gerrymandering is that they know abortion rights are extraordinarily popular. They know they can’t win by letting democracy do its thing.

Melissa Murray: We saw it in the wake of Dobbs where voters had the opportunity to directly register their preferences on questions of reproductive rights. They did so overwhelmingly in favor of expanding them, and then the response to that has put in place measures where you can have a direct democracy vote on every issue except abortion rights.

I don’t think we can understate the distortive effects of gerrymandering. I think gerrymandering was part of what explained what happened in Tennessee. I think it explains the extreme nature of abortion bans that are being passed. You just don’t get those kinds of extremes unless you distort the nature of the state legislature. They don’t have to answer to the majority. We have to grapple with them and because it is so distorted, because the malapportionment is so profound, the only way to overcome it is to literally flood the zone with voters. Which means we can’t afford to sit out an election, any election. We can’t afford not to vote down ballot. It’s not just voting for president and Congress, although those are massively important because, believe me, if Congress and the presidency change hands we will have a nationwide ban on abortion, for sure. But it is also state legislators, sheriffs, school boards, state judges, and the question of state constitutionalism in this moment.

I also think the youth vote is just so extraordinary here. If you are under 21, keep your eye on the ball because they are trying to keep you from voting. They’re trying to limit the opportunity to vote on college campuses. They are trying to redistrict in ways that cut the power of enclaves where college students live. That is by design.

Jessica Valenti: Let me just say one thing in terms of younger voters. The thing that I like to say to younger voters is that imagine the worst guy you knew in high school, the one who constantly interrupted you … those are the guys who are making these decisions. 

I’m going to be honest, I don’t understand why I don’t see a lot of politicians coming out and talking about abortion. 

Melissa Murray: We see abortion is a galvanizing issue among the electorate right now.

Jessica Valenti: I wrote a column recently about how the center on these issues is rapidly evaporating and the more of these horror stories that come out, that is only going to be more true. And I would love to see politicians talking about abortion with a full-throated not defense, but offense – like really getting into it and just leaning away from all of their careful tiptoeing nonsense because it never served us and it’s not going to serve us now.

Abortion medication completely changed the way that people were able to get abortion care. You can have an abortion in your home while watching Netflix privately. We took away their ability to publicly shame us at clinics, and that made them angry.

Jessica Valenti

Melissa Murray: Let’s surface some of the stories that could underwrite a different narrative for progressive lawyering and movement building. Can you tell us a little bit about these women and the horrors they’ve experienced?

Jessica Valenti: Sure. I mean I think the overarching issue is that conservatives would like us to think that abortion is something other than reproductive care. They are desperate to separate it out. But it’s just a part of everything.

As we are seeing with stories coming out of Texas, Idaho and Tennessee, abortion is used to help terminate a miscarriage. It’s used for all sorts of reasons and the stories that we are seeing—and that’s a whole other conversation about what stories we choose to platform and give a bigger audience to—are those of wanted pregnancies.

Many of these stories are about abortion past 20 weeks, because that’s when you see big fetal abnormalities. All of a sudden, we live in a country where women could die of sepsis. We’re talking about Idaho losing half of its ob-gyns and maternal fetal specialists. Where hospitals are literally having to shut down their maternity wards. 

We know that we’re only seeing a very small percentage of what is actually happening, because the people who are coming forward are those who feel comfortable and safe going to the media, people who feel secure in their communities. But the people who are most impacted by this are women of color, Black women especially, immigrant women, poor women. I think the hope from conservatives is that because those stories don’t get told, we won’t notice. So I also think we need to be very mindful of “let’s tell all of these stories” because this is happening to a very specific population in a very different way than it is in other populations.

They know abortion rights are extraordinarily popular. They know they can’t win by letting democracy do its thing.

Jessica Valenti

Melissa Murray: Let’s talk about the women of color who disproportionately bear the brunt of the restrictions on abortion. In 2019, Justice Clarence Thomas wrote a concurrence in which he crafted a narrative weaving the history of Margaret Sanger and the birth control movement to a history of abortion. Margaret Sanger didn’t favor abortion. She’s about contraception. But he talked about her work with the eugenics movement that purposely marketed birth control and family planning and abortion to the Black community for the purpose of stamping Black reproduction. It’s a very standard narrative that has been echoed in lots of different quarters.

Marcus Garvey talked about state-sponsored family planning as genocide. The Black Panthers talked about it. The Nation of Islam has talked about it. But Justice Thomas was sort of shepherding and husbanding this narrative into constitutional law. To me, it seemed a very explicit attempt to reframe abortion as a technology of racial injustice and to reframe opposition to abortion as racial justice, as “wokeness almost.” Is Justice Thomas really the “woke” one here?

Jessica Valenti: So much of it is projection from conservatives when they talk about abortion as racism. When you look at how Black women are dying, it is not because of access to contraception or abortion. It is because of medical racism, because of doctor’s biases, because of lack of care, because of bans.

The other piece of this is the criminalization, because when you look at who is criminalized for having negative pregnancy outcomes, it is overwhelmingly Black women, women of color, poor women. And so it is very, very clear which piece of this movement is racist.

Melissa Murray: And again, Justice Thomas said all of this without ever invoking the history of state compulsory sterilization of Black women that happened throughout the South, the compulsory sterilization of Native women that has happened and continued to happen on Native reservations.

Let me try to connect this up to another dot. Justice Thomas is perhaps one of the leaders on the Court in reframing issues in terms of racial justice. Very recently, indeed just the day before the Dobbs decision was announced, he issued a decision in a gun rights case, in which he linked the expansion of the Second Amendment to possibly include public carrying of weapons in places like New York, to a history in which newly freed African Americans were denied their rights to keep and bear arms; because the prohibition of arms to these new freed men, they were unusually susceptible to racialized violence by white southerners.

And so he’s framed the expansion of the Second Amendment as an issue of racial justice, just as the withdrawal of fundamental rights for women is framed as a question of racial justice.

Let’s just think about that as a democratic moment. We are withdrawing fundamental rights. We are expanding gun rights for purposes of racial justice, but we will not interpret the Equal Protection Clause—the one clause in the Constitution that was actually created for the purpose of thinking about race—in a way that would accommodate a demand for racial justice for minorities.

Melissa Murray: In the Dobbs opinion, Footnote 41 reiterates this logic of abortion as eugenics, and it’s completely bonkers that it’s in there because you don’t need it. The court did not overrule Roe for racial justice. They did so by arguing that the right to abortion is not deeply rooted in the history or traditions of this country and isn’t explicit in the text of the Constitution. The fact that this footnote exists is entirely superfluous.

So why is it there? One answer could be that lays the groundwork for dismantling the right to contraception. Or it could be for the purpose of reframing those bans not just as abortion restrictions but as anti-discrimination measures for the fetus—and, if you reframe them that way, then Dobbs is not simply a state-by-state settlement of the abortion question. It is laying breadcrumbs for the ultimate showdown, which is to nominate the fetus a person and to outlaw abortion entirely.

Jessica Valenti: We’re seeing that in state legislation, too—language like “equal protection for the fetus.” In South Carolina, they’d literally have the death penalty for abortion.

Melissa Murray: There’s a lawsuit that’s currently pending in Texas filed by Jonathan Mitchell, the architect of S.B. 8. Now he’s representing this husband in Texas who is estranged from his wife and suing two of her friends and a woman who provided his now-estranged wife with medication abortion. Interestingly, they are not being sued under S.B. 8, but under Texas’s wrongful death statute.

If you’re not a law student or lawyer, wrongful death is available as a civil recovery for those who have been injured because someone else has been negligent in causing the death of someone that they’re close to. But meaningfully, wrongful death statutes are only available for the death of a person– and this lawsuit is effectively saying the medication abortion wrongfully caused the death of a person, this fetus. He’s also suggested to the DA in Galveston that this might also be prosecuted as a homicide.

Jessica Valenti: It’s all about personhood. That is the next goal.

Melissa Murray: One of the difficulties of watching anti-abortion discourse in this country is that it’s so clearly nested in a web of neoliberalism—by which I mean, in other countries where there are restrictions on reproductive freedom, there’s also fairly robust support for families. There is subsidized healthcare or socialized healthcare in some cases. We don’t have that. So, again, this idea of compulsory parenthood exists in a place where we put on the family the entire burden of raising and accommodating dependency.

Do you imagine in this new landscape where compulsory parenthood is on the table that we’ll see a shift in our neoliberalism and maybe perhaps a greater solicitude for the idea that there could be more robust state support of families?

Jessica Valenti: Maybe a little. That’s what Europe has, and I think we are going to hear that a lot in the coming months. “But look at all these other nations. Don’t you like those nations? They’re doing this.” But people can access abortion in the first-trimester much easier there. They have healthcare. It’s just a completely different thing.

Melissa Murray: Going back to this question of democracy. A provider in Texas told me the most arresting story I think I’ve ever heard. On Jan. 4, 2021, she went to work at the clinic where she provides abortion care and for the first time in months, she could get into the building without incident. No protesters. The patients came in, they got what they needed. They left. No problem. It was the same on Jan. 5. What was going on?

And on Jan. 6, as they’re watching TV, they were literally astonished. They actually identified their regular protesters at the Capitol—many of their regular protesters who normally would be at the door of their clinic shouting at patients as they came in, shouting at providers that they were baby killers. 

Jessica Valenti: Not surprising in the least. The connection between anti-democratic, white supremacist groups and anti-abortion groups, they’re all having a great old party together.

Melissa Murray: It also suggests there are inextricable linkages between the movement to suppress voting rights, the movement to make the democratic process distorted and malapportioned, and the movement to basically run out democratic government in favor of something that looks more fascistic.

What are five things that everyone in this room can do to make clear the linkages between abortion and democracy and the degree to which there is majority support for reproductive freedom?

Jessica Valenti: All of us in this room know the way that abortion connects to all of these different issues. We have the ability to make those connections in our everyday lives, on social media, when we’re talking to family, when we’re talking to friends, when we’re getting out the vote. We have the ability to bring up abortion everywhere and we should—because abortion is everywhere and it’s connected to everything. There is no reason that we shouldn’t be talking about this every day and demanding that the people who represent us talk about this every day with the urgency and importance that it deserves.

Melissa Murray: I’m a professor. I’m good at giving homework. Talk about it, link it up to these issues that usually remain siloed. We’re talking about voting rights. We don’t get restrictive abortion laws unless we’re gerrymandered and we’re suppressing those who would object. So, they’re inextricably connected, and we need to talk about them as such. When the media tries to “both sides” this we need to speak up and say the evenness isn’t there. There’s majority support for this and we need to talk about that.

Young people make voting a habit in every election, in every ticket. Not just the top of the ballot, all the way down the ballot because down the ballot is where the good stuff happens where they’re making the most inroads and where we leave power on the table. Don’t leave any power on the table.

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