50. Supreme Court Rundown: Will Roe Survive? (with Hillary Schneller, Brigitte Amiri, Aziza Ahmed, Renee Bracey Sherman and Shannon Brewer)

The Supreme Court's Vision of Equality Likely Means the End of Abortion Rights—But It Could Mean Much More

With Guests:

  • Hillary Schneller, a senior staff attorney at the Center for Reproductive Rights, and is co-lead counsel (along with Julie Rikelman) in Dobbs v. Jackson Women’s Health Organization, which the Supreme Court heard earlier this month.
  • Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project and expert in reproductive rights law.
  • Aziza Ahmed, a professor of law at the University of California, Irvine. She is also the author of the forthcoming book Feminism’s Medicine: Law, Science, and Social Movements in the AIDS Response, to be published by Cambridge University Press.
  • Renee Bracey Sherman, an activist, writer and reproductive justice activist, focusing on the visibility and representation of people who have abortions in media and pop culture. She is the founder and executive director of We Testify, an organization dedicated to the leadership and representation of people who have abortions.
  • Shannon Brewer, the clinic director at Jackson Women’s Health Organization, the last remaining abortion clinic in Mississippi. She has worked at the clinic for 20 years.

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In this Episode:

In this episode, we are on the ground after the oral arguments in one of the most important Supreme Court cases of a generation. On December 1, the Supreme Court held oral arguments in Dobbs v. Jackson Women’s Health Organization—a case that some believe could overturn Roe v. Wade. The case involves a Mississippi abortion provision, banning most abortions after 15 weeks, with no exceptions for rape or incest. 

So, what’s at stake in Dobbs—both in terms of abortion rights, and in terms of the Supreme Court’s legitimacy?

(Special thanks to the contributing journalist Anoa Changa for interview work on this episode.)

Have a topic you’d like us to delve into, a guest recommendationor just want to say hi? Drop us a line at [email protected]

Background Reading:

Transcript:

0:00:09.4 Michele Goodwin:

Welcome to “On the Issues with Michele Goodwin” at Ms. magazine, a show where we report, rebel, and you know we tell it just like it is. On this show, we’re cutting to the chase. We’re joining you, out of the studio, on the ground to talk about some of the most critical issues facing us today, including the rule of law and what’s happening at our United States Supreme Court, in the backdrop of the Supreme Court taking on the Dobbs case. It’s the case that involves the 15-week abortion ban imposed by the Mississippi legislature, signed into law by their governor—but was enjoined by Judge Carlton Reeves. 

The Supreme Court decided to take up that case and on December the 1st, there were oral arguments held in that case. What’s at stake now—not only in Mississippi, but potentially in 26 other states, and really, the rest of the country?

Joining me to unpack these issues and more, our very special guests.

We’re on the ground and out of the studio for this episode, and we bring it to you in three parts. In part one, you’re going to hear from Shannon Brewer. Shannon runs the last and only abortion clinic that remains in the state of Mississippi. I’m so grateful to my colleague, Anoa Changa, who did this reporting for us at Ms. on the ground in Mississippi.

In part two, I couldn’t be more happy than to be joined by Renee Bracey Sherman. She’s been hailed as “the Beyonce of abortion storytelling.” She is a Chicago-born, Midwest raised, an activist, a writer, and a reproductive justice activist—some would even say warrior—who’s committed to the visibility and representation of people who have had abortions. She does this in media and pop culture, and helps them tell their stories.

Finally, in part three, we turn to the rule of law—not only in terms of what could happen in Dobbs v. Jackson Women’s Health Organization case, but more broadly in what does this case mean for democracy, for the rule of law. Many are saying that it’s the first abortion case in front of the Supreme Court that could lead to the overturning of Roe v. Wade. Is that the case? Should we be concerned? Along that way, I’ll be joined by Hillary Schneller. She is a senior staff attorney at the Center for Reproductive Rights and is co-lead counsel along with Julie Rikelman in the Dobbs v. Jackson Women’s Health Organization case.

Bringing back Brigitte Amiri to our show. She is the deputy director of the ACLU’s Reproductive Freedom Project, she is an expert in reproductive rights law. 

Last but not least, I’m joined by Aziza Ahmed. She is a professor of law at the University of California, Irvine. She’s also the author of the fourth coming book, Feminism’s Medicine: Law, Science, and Social Movements in the AIDS Response. It’s to be published in 2022. 

A view of Jackson Women’s Health Organization, aka the Pink House, the last abortion clinic in the state of Mississippi. (Montinique Monroe / Ms. magazine)

We now turn to the interview with Shannon Brewer. And again, I’m so grateful to Anoa Changa—you’ll hear her voice in part of this segment. She interviewed Shannon Brewer on the ground in Mississippi, where there’s only one abortion clinic that remains. It’s a clinic that has been picketed. It’s a clinic that receives threats every day. It’s a clinic where people have to steel themselves against the kind of violence that exists outside of the clinic every day just to get this basic reproductive health care that’s provided by the team of folks that work with Shannon Brewer. Let’s turn to that audio. It’s important to take a very close listen, and to understand just what’s at stake in this case.

0:03:53.3 Anoa Changa: 

What does it mean to be the last remaining clinic in the state, like in your own words, of your own experience, like what is that to be the last provider left?

0:04:06.3 Shannon Brewer:

Being the last provider, it’s, it’s, it’s, it’s scary, really. It’s scary because it’s like…it’s almost like everybody is looking at your clinic now. Everybody is looking at you to see if you’re doing all the right things, if you’re…if you…you know, if you forgot to cross your T’s, dot your I’s, you got to do…you know, even though you’re trying to do everything you’re supposed to do, it’s all like all eyes are on your clinic, you know, to make sure you’re in compliance with every single thing. 

It’s a scary situation, you know, and it shows that…it shows what they…what they can get accomplished over time by chipping away little by little at these laws. They pretend they’re…they pretend like these little laws don’t mean anything but it’s showing you that these little bitty laws that they’ve gotten passed over the years, this is the big impact that they have been trying to get accomplished the whole time, they just do it little by little, and now they’ve gotten it down to one clinic, and this is what they’re to accomplish, and now, they’ve gotten to the point where it could take this last clinic. Yeah, it’s scary, honestly. Yes. 

Shannon Brewer, in her office at Jackson Women’s Health, has been the clinic’s director for the past two decades. She urges the public to get more vocal in its support of abortion rights. “Pro-choice do not mean that you will have an abortion,” she says. “Pro-choice do not mean that. It just means that you have no say-so of what the next person does with their body. That’s all pro-choice means.” (Montinique Monroe / Ms. magazine)

0:05:37.3 Anoa Changa: 

Yes. 

0:05:38.5 Shannon Brewer: 

Yeah.

0:05:40.0 Anoa Changa:

So, just like with this, you know, everyone’s been talking about the 15-week abortion ban and the Supreme Court case, what is your feeling, like how are you thinking about…or do you even think about like these legal battles and stuff happening in the terms of the ability for the clinic to continue in providing care?

0:06:04.8 Shannon Brewer: 

Like right now?

0:06:06.1 Anoa Changa:

Just like between now and then just looking forward.

0:06:11.3 Shannon Brewer:

Yeah, I think about it because I have to think about it because we’re having to deal with it with the lawyers, you know…

Every day, and we’re, you know, constantly talking to the lawyers and stuff, so of course, I have to constantly think about it. I try not to focus on it so hard every day because we’re still seeing patients, like tomorrow morning, we’re going to have patients all day, so I try to focus on how many…you know, seeing all the patients everyday up until then, but you know you can’t help but think about it because that’s like, you know, that time is coming soon.

You know, that’s less than a year away. I mean, the court hearing is this year, and then the decision will be made by spring, so you know you can’t help but to think about that. You know, people ask me what do you think, you know, do you really think they will do this and do you really think they will do that. Usually, when people ask me about anything pertaining to the clinic, I usually have a definite answer, you know, I’ll say like, no, they wouldn’t dare do this or they wouldn’t dare do that, but like this time…and maybe that’s why I’m so worried is because I’m really not sure this time because I was so sure that they wouldn’t take the case, and that’s what worries me because I would’ve never thought the Supreme Court would take the case. Even with the people that they have there, I would’ve thought they wouldn’t have. 

The Jackson Women’s Health Organization in Jackson, Miss., on August 17, 2021. (Montinique Monroe / Ms. magazine)

0:07:58.6 Michele Goodwin: 

We turn back now to our interview with Shannon Brewer. She’s perplexed as many people are about the anti-abortion legislating taking place in states that have not shown a commitment to children after they are born, states that do quite poorly in education, in health care, in providing jobs and opportunities for people to really live out, and to have that American dream. It’s important to listen closely to what she’s saying because it really sets the stage for just what’s at stake in these times.

0:08:44.2 Shannon Brewer: 

One thing I’ve learned is that our governor…our government of Mississippi don’t seem to care about children once they’re here. Everything about it, everything that they vote for and against shows that they have no desire to uplift women or children once the child is here. They vote against anything that’s going to help a child or a female once that child is here. 

Education is at an all-time low here, and they don’t care. They cut back on everything. They cut Medicaid, they cut childcare, they cut everything. They cut childcare for women that were in school. I can remember they cut childcare so bad a few years back, I had someone who owned a daycare, they wiped almost all the kids out of his daycare, those parents that were in school. It wiped almost all of those parents out because they completely cut them off. These are the same people who love children so much. I don’t understand that, this is the same government that claims to love children and they so against abortion. 

See, they contradict everything they say. Every one of these abortion bills that they pass and our attorneys fight, when we win these…against them, win these bills, these lawsuits, a lot of people don’t even know it’s millions of dollars paid out from the state from…this is paid from taxpayer’s dollars, paid out, millions of dollars. You can give millions of dollars when you all lose. You all can give millions of dollars to some pro-choice people when they lose. 

Access to birth control is an issue in Jackson: It can take up to six months to get an appointment with the county health department. The Pink House provides Depo-Provera shots, IUD insertions and birth control pills, when they’re in stock. (Montinique Monroe / Ms. magazine)

0:11:15.2 Michele Goodwin: 

Shannon Brewer helps us to put into clear terms, just what’s at stake in Mississippi—but Mississippi is not alone. In part two of this episode, we turn to Renee Bracey Sherman. Renee has done incredible work on the ground working with people to lift their own voices, and to tell stories about abortion. 

Now, many people say people shouldn’t have to shout their abortion or tell their abortion stories. And yet, what Renee finds to be important is normalizing abortion as basic health care and bringing people outside of the closet so that they can feel comfortable in sharing who they are without stigma and stereotype. And without punishment. I couldn’t be more happy than to have spent time with Renee Bracey Sherman and we share this with you right now.

0:12:35.3 Renee Bracey Sherman: 

First, thanks for having me, it’s so great to be here. You know, I love you and your radio voice, love it.

0:12:42.0 Michele Goodwin: 

Love you back. 

0:12:41.9 Renee Bracey Sherman: 

Love it. So, one of the things that we wanted to do, we’ve done these abortion storytelling briefs or amicus briefs that are sent to the Supreme Court with people’s abortion stories before, so it’s not the first one, but in the Dobbs vs Jackson Women’s Health Organization, in that case, we really wanted to do a brief that illustrated the sheer volume of how many of us have had abortions, shared our stories, and just like know we want access to abortion to remain. 

The anti-abortion side had already submitted their brief, which had I believe 375 people who’ve had abortions, some of them were kind of anatomized stories and just people who regretted their abortions, and so my organization, we testified, partnered with Advocates for Youth, our movement bestie organization, they also do storytelling work, and you know we said, what if we did an amicus brief that, of course, included people’s abortion stories but was sort of a people’s brief, a sign-on where people who’ve had abortions could add their name to this brief as signatories.

I believe a lot in like the work that I do and the symbolism and all that, so it was a bit of a throwback in ’02, the Ms. magazine, “we had abortions” letter that Gloria Steinem and a bunch of other folks who’ve had abortions, when it was legal, that they all worked on, and so we thought what if we did something like that, and you know because of timing and everything was happening, we only had a week to get it together, but you know in a week, we got 6,641 people.

The declaration by 53 prominent American women in the historic preview issue of Ms. came with a simple headline: “We Have Had Abortions.”

0:14:40.6 Michele Goodwin:

Stop the music, as they would say, stop the music.

0:14:44.3 Renee Bracey Sherman: 

I know. 

0:14:44.3 Michele Goodwin: 

Because, you know, you start off with 375 and it’s like, oh, that sounds like so many, and in a week.

0:14:50.4 Renee Bracey Sherman:

Yeah. It was funny because our goal…I always said, my goal was 376. I just wanted to have one more than the antis, and my philosophy in life and in my work is that under promise, overdeliver…

0:15:04.6 Michele Goodwin:

There you go. You’re a baller. 

0:15:06.4 Renee Bracey Sherman:

And within the first day…yeah, I mean, we hit the first number like just in the first couple hours, and we couldn’t believe it, but to me, it really spoke to this political moment where people have just had enough and want to share their stories, that wanted to speak out. 

And then, on a personal note, I’ve asked my mom to sign on to briefs and things I’ve done in the past before, and she’s always been like, hmm, no, hmm, you know, and just didn’t really…it was like, that’s what you do, and so I asked her again, and this time, she said, yes.

It was just this reminder of, you know, how critical this moment is, how fed up people are, we’re not scared of being secretive and shamed about our abortions anymore, we are speaking out, then also, of course, to not only have my name in there but my mother’s name in there, three of my cousins, my aunt’s in there, it was this beautiful reminder of how many of our families are shaped by abortion access, and like my life would not be possible, I would not be here right now if I, A, didn’t have my own abortion but also if my mother did not have hers, my life would not…I would not exist, and so…

0:16:29.4 Michele Goodwin:

And that’s an important part of the narrative that gets lost.

0:16:34.1 Renee Bracey Sherman: 

Yes.

0:16:34.3 Michele Goodwin:

This idea that abortion, first of all, the misnomer, right, the very purposeful framing that abortions hurt women.

0:16:46.6 Renee Bracey Sherman: 

Right.

0:16:47.1 Michele Goodwin:

That abortions are the risky health thing rather than the sad reality in the United States, which is that if you try to carry your pregnancy to term, that’s when you might die in the United States. 

0:16:57.2 Renee Bracey Sherman: 

Yeah. 

0:16:58.2 Michele Goodwin: 

The other thing is like the failure to understand that by women, people being able to make their own decisions with regard to abortions that they end up being able to create healthy families, happy families, and that’s one of the things that you’re telling right now.

0:17:13.3 Renee Bracey Sherman: 

Absolutely. I think, you know, all of us deserve to be able to decide if, when, and how to grow our families on our own terms, you know, in our own situations, and sometimes, that is from an unintended pregnancy, and that’s, you know, normal, right, and sometimes, that unintended pregnancy is not it, and so, you know, you decide to have an abortion so that later on you can have an intended pregnancy, a planned pregnancy or another unintended pregnancy where like actually I think I can do it this time or you know my family’s already complete, I already have children, and so I would like to have an abortion, and the majority of people who have abortions are already parenting. 

And so, again, this is how we build or decide not to grow our families, and I think the answers have really done a number on the misinformation and the lies and the stigma to say that people who have abortions hate children, they don’t want to be parents, all of those things, it’s actually the exact opposite, it is that they love their children that they have, that they are like this is what I want, I want to care for the ones that I already have or they say I want to be in a place where I can parent to the best of my ability, and so this pregnancy is not it right now, and I definitely had a lot of antis for years would say, well, what if your mom had had an abortion. Well, guess what, my mom did have an abortion, and that’s why I’m here telling you about yourself, that’s why we’re arguing, because she was able to access abortion care. 

0:18:46.5 Michele Goodwin: 

I really appreciate what you’re bringing to the table because in law schools and in the casebooks and ultimately in the jurisprudence that results from courts taking on cases, identity is often are stripped away.

0:19:01.8 Renee Bracey Sherman: 

Yes.

0:19:02.3 Michele Goodwin:

Don’t really understand, it’s not really presented the kind of texture of people’s lives and what they encounter, and what they go through, and what you’re describing is that there are families that have to make important decisions, and there are women that make important decisions because I’ve got two kids or three kids, I don’t get paid the wages that I deserve, I’ve got to figure out a way to take care of my kids in a way that’s dignified so that my kids aren’t taken away from me.

0:19:30.6 Renee Bracey Sherman:

Right. 

0:19:31.9 Michele Goodwin:

I have to be able to feed my kids, I have to be able to clothe my kids, I have to be able to put a roof over my kids’ heads, and it all has to be reasonable to satisfy this government that could otherwise police me and take them away from me if I don’t do it to the standards that this government determines.

0:19:51.5 Renee Bracey Sherman: 

Right, and I think…I don’t even know if I can really talk about this but whatever, I’m going to do it anyway because it’s the truth, and I think people need to know the truth and sort of how the sausage is made and behind the scenes, obviously, you and I have had many conversations, particularly as you know my co-author Regina Mahone and I are writing our book, and one of the things that you said to us that really has stuck with me is the way in which case law strips our humanity and all of the like, you know, the meat on the bones, our stories, who we are, right, from these cases. 

And so, as we were putting this brief together, one of the things the original firm that we were going to work with, not the one that submitted it, did not want to talk about race, class and gender identity in the way that my organization We Testify does, in the way that I believe that it should be talked about, they wanted to write a “compelling” brief for the Court, and that meant not talking about our lives as they existed and not talking about…

0:21:03.0 Michele Goodwin: 

—It means not talking about Black women, right, so compelling is, let’s just take away Black women, let’s take away poverty.

0:21:10.7 Renee Bracey Sherman:

Let’s take it all away, and I was like then what is the point of this brief? Because if you are not going to tell our abortion stories in full color, excuse the pun, right, the way that they are, then this is not a brief that I will have anything to do with. And so I walked away, and then we ended up switching firms, and we got to work with a firm that really understood that the reality is, is Kavanaugh’s not read our brief and say, oh wow, I really had not thought about how abortion impacts people’s lives, right. 

The point of this brief was that if you are going to overturn Roe, you better do it and look every single one of us in the face, you’re going to hear what’s happening in our lives, you’re going to hear about what is happening to the queer and trans people, the Black and Brown folks, the folks on Medicaid, who you’re already harming with all sorts of other precedent that you’re just remaking, right, you’re going to look us in our face and do it. 

You’re going to read all 6,641 of our names, hopefully, see somebody in your community, you’re going to have to do that before you do this, and so I feel like there are ways in which, even from our own side on the law, that people try to take away our humanity or us talking about our lives…

0:22:43.1 Michele Goodwin:

That’s right. 

0:22:44.1 Renee Bracey Sherman:

And telling our stories because it’s not “convincing enough.”

0:22:49.3 Michele Goodwin:

This erasure, it’s…

0:22:52.5 Renee Bracey Sherman:

But it just…I mean, it sure was just like fuck you, like this is…why am I taking away who I am so that it’s a palatable version of myself for a Court that already doesn’t see me as a human. That was painful.

0:23:10.8 Michele Goodwin:

It remains painful, and it’s the arc of history that takes us back to the very first interruption of Indigenous lands here by the folks who came and then imported Black people to do the uncompensated labor here as enslaved persons, and this failure to recognize the humanity, the dignity, the personhood of Black women, and there is a thread that unites this from the very first until now. I mean, if the one thing that we can see across the various things that are illogical, inconsistent, and what not has been the robbing of Black women of human dignity, autonomy, freedom, and liberty in this country, as related to their reproductive health care, and it’s undeniable and just what you say now is that this is something that’s important to recognize not just within the anti-abortion space but even amongst those who would claim…

0:24:16.9 Renee Bracey Sherman:

Our own friends.

0:24:19.3 Michele Goodwin:
Exactly, that Black women are supposed to be silenced, that we’re not supposed to talk about Fannie Lou Hamer, and the infamous Mississippi appendectomies that were performed against little Black girls in Mississippi, we’re not supposed to talk about Black women being coercively and forced sterilized, that we’re not supposed to talk about what it means when Mississippi and Texas and other states have no exceptions for rape or incest in their anti-abortion laws, where there would be people of these movements that claim to care about personhood but would deny that to 10, 11, 12 year old girls who become pregnant because of an uncle, a brother, a cousin or father.

And as part of what the power was and still is of the brief that you did, of the work that you do, I want to ask you about how you came away hearing the oral arguments? What was your sense about where this going, what’s your sense about the responses from the justices?

The Women’s March in Austin, Texas, on Jan. 21, 2017. (Steve Rainwater / Flickr)

0:25:29.2 Renee Bracey Sherman:

So, this is kind of embarrassing, I’m just going to be honest, I actually didn’t listen to them because I heard a couple clips, and some of the clips that I heard, like when Justice Roberts said, “putting the data aside,” that was all I needed to hear as to where we’re at, right, because he has all of this empirical evidence based research in front of him telling him what the truth is, and he said, putting that aside, and I also couldn’t listen to it live because I was the MC of the rally for nearly six hours, right, and so all I was told that day was that, okay, the lawyers are coming out, you know, in between introducing this person, that person, lawyers are going to come out, can you like…let’s cheer them on, cool, and then, also, they said, you know, Justice Sotomayor really held it down, right, she’s just giving fire questions, you know, and so we know that her dissent is going to be fire, and so they told me that was happening, and like the thing is that everything that was said, I knew it was going to happen. 

I knew and then later heard that Justice Amy Coney Barrett was like, well, they can just give it up for adoption. Yeah, because that has literally been the anti-abortion talking points for decades because, at the end of the day, if you don’t believe that pregnancy is any sort of life altering event, is actually an impact on someone’s life, then, of course, you’re like yeah, yeah, just go through it, whatever. If you don’t care that somebody needs paid parental leave, as all of our anti-abortion politicians don’t believe, right, you don’t care. So I mean, like am I surprised, I haven’t actually listened to it, yet.

And I will also be honest about the other reason I haven’t listened to it yet is that this moment is really hard and painful, and I was very nervous leading up to hosting the rally, and again, I’m seeing it again, and the days after, you know, I had to do a lot of media, and I had to support storytellers, it was just like very emotionally exhausting, so I couldn’t be in the place to listen to it, yet, right, I had to get whole and take care of my body first, so that was my priority, but what I had to hold onto by listening to it, and I probably will, maybe, you know, when I am calmed down a bit, I’m getting there, but what I wanted to hold onto and not ruin the moment with was I was holding onto the energy from the rally, and the beauty of how many people who’ve had abortions were sharing their stories in op-eds, just talking at the rally, from the stage, right, all of this stuff, I wanted to hold onto that beauty and that energy because the reality is, is we know what’s next.

0:28:44.5 Michele Goodwin:

We turn now to the last segment of this episode, where I’m joined by Brigitte Amiri, Aziza Ahmed and Hillary Schneller, to give us a sense of what’s happening on the ground in terms of law, not only in the Dobbs v. Jackson Women’s Health Organization case, but more broadly in terms of what this case represents to the rule of law, to our democracy, and much more. Let’s take a listen.

Hillary, I want to start with you. Last week, you and Julie Rikelman were in front of the Supreme Court in the oral arguments involving the Dobbs case, which brings us to this specific podcast, what’s your sense coming out of oral arguments about what we can expect from the Court?

Pro-choice activists outside the Supreme Court on Dec. 1 for oral arguments in Dobbs v. Jackson Women’s Health Organization. (Center for Reproductive Rights / Instagram)

0:30:05.9 Hillary Schneller: 

Sure, and thanks for having me. I mean, I think it’s always really hard to read tea leaves, and so I try to avoid doing that, but one of my big takeaways was that both Julie and the solicitor general for the United States, who argued on our side, as well, were able to get out every argument that we had planned to, right, about precedent, about the harm for pregnant people of taking away this right for the first time, taking away a fundamental constitutional right. And the other big takeaway is the state doubled down on its radical request that the Court overrule Roe, but again, did not make any new argument the Court has not considered and rejected before. All they have presented is really disagreement with 50 years of precedent.

0:30:55.6 Michele Goodwin:

So, that said, what’s the difference then that we see now versus let’s say before Amy Coney Barrett came onto the Court or Brett Kavanaugh, I mean, that strategy, you know, what do we make of that strategy, just get rid of Roe and now not just even the 15-week ban?

0:31:17.3 Hillary Schneller: 

I mean, certainly, right, the composition of the Court is different than the last few times we have been before the Court in the last six years, and some of the Justices’ questions were certainly concerning, you know, I think one in particular line of questions about, you know, the Constitution is not pro-life or pro-choice, you know, should we sort of leave this to the states and us be neutral, I think was concerning given that, of course, the Constitution is not neutral on fundamental rights of our basic humanity, and again, I think we were able to address that question and say, of course not, there’s a reason that certain decisions are not left up to the states, but right, I mean, I think the state is coming to the Court now given the change in the composition of the Court with a very radical request that it has not made quite so forthrightly before.

The Trumps with Amy Coney Barrett and her family on Sept. 26, 2020, in the Rose Garden of the White House. (White House / Shealah Craighead)

0:32:13.7 Michele Goodwin: 

Brigitte, I want to turn to you and specifically, as we think about the justices and the key roles that they play, the signaling roles with regard to oral argument, and we have Justice Kavanaugh’s attempt to justify some of what he considered the most consequential cases in the Court’s history. He named Lawrence v. Texas, Mapp v. Ohio, and other ones that overturned precedent. This line of oral argument has really dispirited some, can you give our audience a sense of where you think that Kavanaugh may have been going in terms of the discourse about precedent and precedent sometimes having minimal value?

0:32:59.9 Brigitte Amiri:

Sure, and thanks, also, for having me, and it’s so nice to be in community with all of you during this challenging time. So, you know, I think that Kavanaugh was signaling that he thinks it might be okay to overturn Roe versus Wade, and I think he’s laying the groundwork for his justification, if that’s how he votes. It’s always hard to say, as Hillary says, you know, what’s actually going to happen. You know, we were on a precipice of having Roe versus Wade overruled in 1992 when the Court decided Planned Parenthood versus Casey, and the Court did not, so it’s hard to say, but I think that diatribe by Kavanaugh was really about if he does vote to overturn Roe versus Wade, how he can justify, but it’s really cynical to think that he is on the side of civil rights and protection of individual rights—and you know don’t even get me started about the invocation of racial justice and…

0:33:53.4 Michele Goodwin:

Oh, I want to so get you started on that.

0:33:57.6 Brigitte Amiri: 

It is so cynical for Justice Kavanaugh and other justices, who we know don’t support those individual rights and do not seek to protect racial justice in this country to then invoke those as a way of justifying taking away, potentially taking away, the right to abortion in this country.

0:34:19.5 Michele Goodwin: 

Yes. Aziza, I’d like for you to pick up on that, too, it’s not just Justice Kavanaugh, but also, Justice Amy Coney Barrett then had particular matters to say with regard to adoption.

(NARAL Pro-Choice America / Flickr)

0:35:04.0 Aziza Ahmed: 

Yes. Yeah, absolutely. Thanks, Michele. Yeah, you know, she had a shocking line of questions, actually, in which she was, basically, making the point that because we have safe haven laws, and there’s been a greater uptake of safe haven laws in the United States, that it…

0:35:29.7 Michele Goodwin:

And can you explain what safe haven laws are for people who don’t know what that means?

0:35:34.6 Aziza Ahmed: 

Sure. Yeah, so basically, what Amy Coney Barrett is doing is saying that because there’s a way for a woman to carry her pregnancy to term, give birth, and safely leave that child, let’s say at a fire station or in the hospital, essentially give the child up for adoption, that that is equivalent to being able to have an abortion early in pregnancy or at least pre-viability, and I think this was shocking to so many people, and reproductive rights advocates in particular, because she was basically saying that carrying a pregnancy to term is the same thing as having an abortion, and this is really where you see the power of the claim that the state is actually willing, at some points, and that the Court is actually entertaining the idea of essentially making women carry or be pregnant when they do not want to be pregnant, that forced pregnancy is an actual thing that’s on the table, in our current political moment.

0:36:31.0 Michele Goodwin:

And so, I’d like to open that up to both you Hillary and also Brigitte about this question of forced pregnancy and Justice Amy Coney Barrett, what were your takeaways from the questions that she asked and also what we could sort of taken into it from what those questions were? Hillary, I’ll start with you.

Scenes at the Supreme Court right after the announcement of the nomination of Amy Coney Barrett on Sept. 26. (Victoria Pickering / Flickr)

0:36:51.1 Hillary Schneller: 

Sure, I mean, so this is an argument the state briefly had in its brief, so it sort of didn’t come completely out of nowhere, but her picking up on it was certainly interesting given the panoply of arguments you know she could have picked up on from the state.

You know, again, this framing about trying to separate out pregnancy and the burdens of parenting is something Casey considered. It talks about the two lines of decisions that the right to abortion, the right to decide if, when, and how many children a person’s going to have. Again, so not a new argument but one that, you know, I think is trying to…I mean, as Aziza was saying, say that, well, if we could just kind of clip off and separate out parenting, are you really only basing the right to abortion on the burdens of pregnancy to sort of try to narrow the basis for the right, which is just, again, you can’t separate them out so easily, and the burdens of pregnancy would be enough anyway, right, so that was sort of an odd attempt to separate things out. 

The other thing is that I think that solicitor general was able to raise was forcing someone to give a child up after they have given birth is often not an easy thing, and it’s not sort of in line with the values of autonomy and dignity that the Court’s decisions have protected.

0:38:21.9 Michele Goodwin: 

Yes. Brigitte, how about you?

0:38:24.8 Brigitte Amiri: 

Yeah, so I think that Hillary is exactly right, and also, again, Julie made the point of argument that forcing people to remain pregnant and give birth against their will also carries significant health risks. Women are at risk of dying 14 times more from carrying a pregnancy to term rather than having an abortion, and in states like Mississippi where there is a really high maternal mortality rate particularly among Black women, the consequences of forcing people to remain pregnant and give birth against their will are severe. So adoption, safe haven laws are not a substitute for abortion and neither is contraception. We heard that from some of the justices, too, that, well, just because there’s the advent of contraception and accessibility, and that’s a whole other cynical line, too, is that the same justices who are trying to invoke contraception now don’t support access to contraception, so neither contraception nor adoption are substitutes for abortion.

0:39:28.6 Michele Goodwin: 

Yes. All right, so let’s pull this back a bit, what do you find to have been some of the most shocking arguments that were being made during the hearing on Dobbs, that is to say arguments that may have come from the lawyers or what we might have heard from the justices, and then I want to hear about what your sense was of the sort of justices that were fighting to make it at least into the record the importance of the right to be able to determine one’s own reproductive autonomy.

0:40:13.3 Aziza Ahmed:

What was surprising is hearing how seriously a set of claims that Mississippi made in the course of their brief, claims that has been said already, I think Hillary you mentioned this, that the Court has already heard and dismissed most of these arguments, these critiques of the undue burden standard and the critiques of viability, the arguments made against viability. 

For me, the thing that felt most worrying was Kavanaugh’s uptake of this idea that the Court can remain neutral and the legitimacy and neutrality of the Court could essentially rest on the Court not taking any action in the abortion space, that we’ll just leave it to the states, and I think this was a scary argument to hear articulated by the justice because it did sound like an argument that could carry water in the eyes of many, it could continue to help legitimate the Court, you know, to say leave it to the legislature, leave it to democratic process, and I think the thing that feels so, as you said Michele, crazy to me is how nobody acknowledges, you know, on whose back that is going to fall.

It is poor women, it is Black women, it is Latino women, it is women of color, who cannot access an abortion in this country for the most part, and it is those same women who often need abortion and by the Court remaining “neutral,” they’re actually acting in a way that will harm so many, and to me, it’s that kind of double move of, you know, being able to stand outside itself and say we can be a neutral legitimate institution while also just undermining the health and life, and wellbeing of so many people, that feels crazy making to me. 

0:42:05.8 Michele Goodwin: 

Yes. Brigitte?

0:42:08.3 Brigitte Amiri: 

Yes, I mean, so much of it, too, and also, again to pick up that thread for Kavanaugh to push the solicitor general of Mississippi and say, you agree with me, right, that this is just neutrality, we’re not saying that there could be a nationwide abortion ban, for example, and that’s also a signal of like, you know, tut-tut ladies, you know, we’re going to pat you on the head and say don’t worry about a national abortion ban because that’s crazy, that’s never going to come, and you know we’ve all been raising alarm bells for a decade saying that Roe is being chipped away at, abortion is being pushed out of reach, we all need to be fighting to secure access, and if Roe is overturned, the next thing on the horizon is going to be a nationwide ban on abortion and a ban on contraception. That’s what the other side is going to push, and that’s what we’re going to be fighting against, as well, and so I think that’s the other thing that was signaling to me that there’s going to be a way to try to say, if we overturn Roe, don’t worry because some states will still have access, but we know that the next thing on the horizon is we’re going to try to ban abortion completely in this country, so that’s the other thing just to pick up on what Aziza was saying.

But also, you know, the conversation about Plessy versus Ferguson and Brown versus Board of Education, it’s just so disturbing to me, this idea that Roe versus Wade, which found a fundamental constitutional right to abortion could be considered as parallel to Plessy versus Ferguson, which sanctioned our country’s horrible history and laws and practice of racial discrimination, and that that somehow is if they overturn Roe, that will be the decision like Brown versus Board of Education, which overturned Plessy, like the parallels are just so upsetting, and then, so I think that that is also just one of the things that sticks out of my mind.

0:53:21.0 Michele Goodwin:

Very recently we did a show on violence, the histories of violence, in the anti-abortion movement, which is something that doesn’t necessarily get its public due from traditional media, you know, we’re talking about organized collectives that identify themselves and that have been connected to nearly 50 bombings of clinics in the last, since Roe v. Wade, numerous arsons, homicides, threats of homicide. In any other space, this would be considered terrorism. I mean, if there were organized movement in the United States that’s responsible for killing people doing lawful things, for bombing clinics and other things like that, we would say there’s a list and there’s a list in which we put organizations that pose this kind of threat. 

Clinic escorts watch an anti-abortion protester in the back entrance of Jackson Women’s Health Organization on August 19, 2021 in Jackson, Mississippi. The anti-abortion protests were light this August day—probably on vacation, joked Shannon Brewer, the clinic’s director. (Montinique Monroe / Ms. magazine)

Everybody on this particular episode probably knows doctors that have said that they cannot have their pictures public. I know doctors who’ve said that, who help people terminate pregnancy, and they say that they can’t have their pictures public because they’re concerned about someone showing up at their house and gunning down their children, and that’s not unrealistic concern that they have given that there have been physicians who have been targeted and who have been gunned down, and some who wear bulletproof vests in order to get their jobs done.

Now, oral arguments weren’t just about Kavanaugh and Amy Coney Barrett. I also want for us to spend some time thinking about, well, what was it that was at top of mind for Justice Sotomayor, Breyer and Justice Roberts, and so before our show ends, I want us to unpack that a bit. There was a lot being said about Justice Sotomayor and that perhaps she was building a record for what comes next. What’s your sense of that, you know, tell our audience what exactly Justice Sotomayor was talking about in oral arguments?

0:55:33.9 Brigitte Amiri:

So, she was on fire. She was fantastic, and you know she was saying a lot of the things that I was thinking, so I think that she was doing a couple things. One is she was speaking to us. She was speaking to the public. She was using her time in argument to tell us what she thinks the dire consequences will be accurately if Roe is overturned and the devastating consequences to women, to people who are capable of being pregnant, and the consequences on the most marginalized communities. 

She was also talking to her colleagues, and she was admonishing them publicly, if you overturn Roe … the “stench” is the word that she used, the stench that this Court will have, we will be considered a political institution, we will not have the respect of the public, we will lose the integrity that we have, and so that’s the consequence to the institution, so both we should care about the people who will be affected if Roe is overturned, and we should care about how the Court is viewed in the public eye.

Supreme Court Justice Sonia Sotomayor swears Vice President Kamala Harris into office during the 59th presidential inauguration in Washington, Jan. 20, 2021. (Department of Defense / Carlos M. Vazquez II)

1:09:30.7 Michele Goodwin: 

What is it that’s on your mind, what are you seeing that’s the vision, the next direction for us to go to, and Hillary, I’ll start with you?

1:09:54.2 Hillary Schneller:

Yeah, I mean, I think I have to sort of fundamentally be an optimistic person to do this work, and you know…

1:09:59.3 Michele Goodwin:

You do.

1:10:00.6 Hillary Schneller:

But the stakes here are really high, but people are paying more attention, right, seven in 10 Americans support the right to abortion, and you know even if the antis were louder outside the Court, we actually are a majority, and I have to sort of continue to believe that that will ultimately prevail. 

The other piece of it is just to highlight some of the amicus briefs that were first of their kind in an abortion case, you know, briefs on behalf of birth equity, Black maternal health organizations saying that abortion is essential to our ability to make real decisions about our health and lives. You know, over 100 economists, you know, real hard science economists explaining that it is abortion that is responsible for advancements in women’s ability to participate in a profession, continue an education. So it’s unfortunate that we have to come to the brink before people really start paying attention, but I’d rather sort of say, welcome, and let’s continue to build for the future—so that’s my attempt at a silver lining, for now.

1:11:10.7 Michele Goodwin:

Thank you, Hillary, and you’re right, in the space in which you operate, that is important, bringing that energy, and you do, and I want to thank you for that because it means a lot. You’re really on the battlefront, as are you, Brigitte, so what do you see as the silver lining, and you’ve brought home victories, so thank you, Brigitte. Actually, lots of folks need to be thanking you, Brigitte.

1:11:33.9 Brigitte Amiri:

Yeah, I mean, all of us have, right, on this chat and in general in the movement, as well, and I think, you know, for me, every day, every day that we can get a law blocked, it means that people can get access to abortion, so every day that we’re keeping the clinics open in Kentucky, in Mississippi, in Arkansas, abortion is life changing and so meaningful for people that every day we can make sure people have access to abortion is a day where we have done our jobs, so that is the very short-term. I have hope just as Hillary does that we will get to a place where abortion will just be part of health care, it will be part of our lives, it won’t be stigmatized, it won’t be shamed, and so that is the ultimate goal. 

I think that also, you know, people always have and always will have abortions, that’s just true, and so what is that going to look like? Is it going to look like something that has happened in the last several decades since Roe, it’s not going to look like pre-Roe because of the advent of medication abortion, is it going to look like new delivery service systems for medication abortions? So I don’t know exactly what it’s going to look like, but it might transform, but we will do everything that we can to shape that new system and also support abortion funds and practical support organizations, the organizations that have already created the infrastructure to get people to abortions, and that’s going to be a critical component of this, too.

1:13:09.4 Michele Goodwin: 

Thank you so much, and that is a critical component of it, too, the economic considerations about helping people to be able to get the care that they need if in the state that’s blocked, and that can only take place through certain resources being available to the organizations and clinics that are helping in that regard.

Aziza, take us home, so what do you see as the silver lining and what we should be hopeful about or as Hillary said, keep that optimism burning brightly?

1:13:42.9 Aziza Ahmed:

Yeah, I already feel a little better after listening to Hillary and Brigitte.

1:13:46.1 Michele Goodwin:

I know, doesn’t Hillary…

1:13:46.9 Aziza Ahmed: 

Yeah.

1:13:47.0 Michele Goodwin: 

Make you feel better? Thank you, Hillary.

1:13:51.0 Aziza Ahmed: 

Yeah.

1:13:50.9 Michele Goodwin:

Everybody needs a little bit of Hillary. Yeah.

1:13:52.7 Aziza Ahmed:

Yeah, yeah, and Brigitte, too, I mean, thank you guys both. I mean, you know, I write a lot about social movements, and so in my mind, this is an opportunity I think to really build a strong and powerful movement of non-lawyers, of students.

I’ve heard from a lot of students who are just sort of mind blown that they are in a moment in which they’re young women and they might not be able to access the services they need, and you know I keep thinking back to those early writings on Roe in which they said people were … the anti-choice movement was very much mobilized when Roe happened, you know, these were where some of the seeds were planted for what has become this very powerful movement that we are up against, and you know I think this is our opportunity now to really say, we’re going to take this back in our own hands and we have a lot more people invested in this.

And I think also it’s an opportunity, you know, for reproductive justice to play a central role in how we think about the future, for us to think about how we’re going to broaden this movement. If this is going to be about democratic process, then we have to think about, you know, the electoral system, we have to think about voting rights, and so there’s a lot of opportunities, I think we just have to be creative and think big.

1:15:07.3 Michele Goodwin: 

Guests and listeners, that’s it for today’s episode of “On the Issues with Michele Goodwin.” We brought this episode to you out of the studio and on then ground. I want to thank my guests, Hillary Schneller, Brigitte Amiri, Aziza Ahmed, Renee Bracey Sherman and Shannon Brewer for joining us and being part of this critical and insightful conversation. 

To our listeners, I thank you for tuning in for the full story. I hope you’ll join us again for our next episode where we will be reporting, rebelling, and telling it like it is as usual. It will be an episode you will not want to miss. For more information about what we discussed today, head to msmagazine.com, and be sure to subscribe.

And if you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America, being unbought and unbossed, and reclaiming our time are important, then be sure to rate, review, and subscribe to “On the Issues with Michele Goodwin” in Apple Podcasts, Spotify, iHeart Radio, Google Podcasts and Stitcher. We are ad free and reader supported. Help us reach new listeners and bring the hard-hitting content you’ve come to expect by rating, reviewing, and subscribing. 

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This has been your host Michele Goodwin, reporting, rebelling and you know telling like it is. On the Issues with Michele Goodwin is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers are Roxy Szal and Oliver Haug. Our social media intern is Lillian LaSalle. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Kyle Goode, music by Chris J. Lee and social media assistance from Lillian LaSalle, and we thank Anoa Changa for her on the ground reporting. Stephanie Wilner provides executive assistance.