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Explore Ms. and the Center for Reproductive Rights’ #BeyondRoe project, an array of essays, audio and video content, including:
- The Right to Reproductive Autonomy: A 14th Amendment Guarantee, Lourdes Rivera
- U.S. Abortion Retrogression in Global Context, Diana Kasdan and Risa Kaufman
- The Urgency for Reproductive Freedom: From Slavery to the New Jane Crow, Michele Goodwin
- Building Protections for Reproductive Autonomy in State Constitutions, Amy Myrick and Tamar Eisen
- How States Can and Should Protect Abortion Rights and Access, Elisabeth Smith
- The Fight to Secure U.S. Abortion Rights Is Global, Michelle Onello and Elena Sarver
- Overturning Roe Would Create More Barriers for Asylum-Seekers and Immigrants, Mary Giovagnoli
- Why Roe Was Never Enough—and What Comes Next, Jennifer Weiss-Wolf
- Reimagining the Future of the Reproductive Health, Rights and Justice Movement, Israel Cook and Amber Gavin
Explore Abortion Is Essential to Democracy, a collaborative project between Ms. and the Brennan Center for Justice.
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 center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show, history matters. We examine the past as we think about the future.
On today’s show, we’re out of the studio. And we’re in fact in WNYC Studios in New York—we’ve got a special episode for you, an in-depth conversation about why abortion is essential to democracy. And it’s coming to you from a collaboration with Ms. magazine, Ms. Studios, and the Brennan Center for Justice at NYU School of Law.
Now, last fall Ms. and the Brennan Center joined forces to create “Abortion Is Essential to Democracy,” a series of essays that reflect on the myriad dysfunctions that have helped to erode voting rights, immigrant protections, protections for children, and so much more. Now, we recorded this in front of a live studio audience at WNYC Studios in New York City. And I was joined by a group of spectacular experts.
I was joined by Professor Melissa Murray, the Frederick I. and Grace Stokes professor of law at NYU School of Law. She’s the faculty director at the Birnbaum Women’s Law Network, and also a member on the board of directors of the Brennan Center.
Lourdes Rivera also joins us in this special episode; she’s senior vice president of U.S. programs at the Center for Reproductive Rights.
I was also joined by Monica Simpson, the executive director of SisterSong, women of color reproductive justice collective.
Now, as we noted in the original series, we hope to demonstrate that the fight for abortion rights, the fight for equality in the fight for a representative democracy are all in service of the same goal. And that is, simply put, justice for all.
And I want to start with you, Melissa. Because you’ve spoken about how a broken democracy This is what a broken democracy looks like. It’s not just after the Supreme Court rules, whatever it will be in Dobbs, the fact that we are here in this moment itself says a lot about our democracy and the rule of law. And can you unpack that a bit for our audience?
Melissa Murray (00:13:58):
Sure. Let me just say thank you to everyone for being here and for everyone who’s worked so tirelessly to bring all of this together. I am humbled to be at the center of this amazing Venn diagram, but what a great conversation to have and what an urgent time to have it.
So I think one of the reasons that we are in this position today is a failure of our politics. And I’m looking directly at those of us who identify as pro-choice, who see ourselves in the feminist movement. We have focused on reproductive rights without thinking about all of the ways in which reproductive rights are absolutely undergirded by other rights, including voting rights. And we have been inattentive to the assaults on voting rights. And for that reason, I think we’ve been taken aback by the way in which the assaults on voting rights have absolutely paved the way to dismantle reproductive rights.
So right now, in Texas, we have a law that is patently unconstitutional. Yes, everyone knows it is unconstitutional, but what people don’t think about and don’t talk about is that law does not get enacted by the Texas state legislature, unless that state is so gerrymandered that those who know it’s unconstitutional and those who would object to its unconstitutionality have no voice in the process. That’s how you get a law like that—because you have so fundamentally disrupted and dismantled the system of democracy in that state to allow something like that to happen.
And then on the back end, when the court decides in June to overrule Roe v. Wade, whether explicitly by saying the words, or implicit by simply upholding another patently unconstitutional abortion law in Mississippi, we are going to see the impact of not only gerrymandering, but voter suppression, because the court will have essentially through its rulings, blessing laws that suppress the vote blessing gerrymandering.
The court has effectively insulated itself from any objections that we might raise on the back end to what they’re doing. So part of this is something that we have done because we have failed to see how inextricably linked the vote and our bodies actually are. And so one of the things that we need to take from this moment is that this isn’t just about abortion and it’s not going to end with abortion. The confirmation hearings of Ketanji Brown Jackson made it clear that there is a long game here and it doesn’t end with abortion. It just starts with abortion. But if we are going to register any kind of objections, we need a functioning, healthy democracy to do that. And that’s the first thing that they have disrupted.
Michele Goodwin (00:16:37):
Absolutely. So Melissa, I wanna build from that because you’re right. This has been a marathon. It’s not been a sprint in terms of what gets us here and to dive even deeper because you’ve been quite generous in speaking about a collective we. And in fact, we operate as a collective we. but it’s not the there have been the canaries in the coal mine.
There have been Black and brown women who for a very long time have been saying, ringing the bell and saying: This is coming. This is coming because this has been happening to us.
And it’s unfortunately been to the neglect of those voices that we find ourselves today with folks saying, Well, we now fill the fire when in fact Black women were already in the flames in the 1980s and nineties. And so I wanna turn it over to you, Monica, because it’s such a brilliant piece that you wrote in the New York Times.
And I’d love for you to speak a bit about the organization sister song that you direct and, and what its mission is about and what the importance of the terminology that folks hear a whole lot about—reproductive justice—what that means within this space. Because I like what you closed with Melissa, which is to say that, you know, this is interconnected, this is connected to voting rights and so much more, but also within the space of reproductive rights—what are rights if we’re only looking at abortion? And that’s not rights, that is one right. right. And there is much more within that space for which Black women have again been ringing the bell. So Monica, let me turn it over to you. Yeah.
Monica Raye Simpson (00:18:07):
Thank you so much for having me in the, so great to be in this room. It’s also a little surreal to be like in front of an audience again, with lights and things. So I’m taking a moment to breathe through that a little bit y’all but you know, in 1994, 12 Black women came together to say that healthcare reform was under, you know, was, was the big conversation. And they were not talking about the connection between healthcare and abortion, or the way in which social justice issues impact our lives on many different intersections every day. And these Black women named themselves, Women of African Descent for Reproductive Justice, and thus thinking about reproductive justice in connection to social justice issues, because they know that we cannot live single issue. We can’t have single-issue movements because we don’t live single-issue lives. That’s what Audre Lorde told us.
And so these women called themselves that, and they started this movement to be more intersectional, to work at those intersections and to bring together the work at those intersections, because that was what was going to be necessary for the liberation of our movements. SisterSong was created to be an organization to move that mission forward. And so we work with communities of color every single day to do that work.
And so when I hear this conversation around how abortion has been seen as this single-issue lens led through the lens of white women, mostly, and I’ve seen how so many times women of color, folks of color, who have tried to interrupt that narrative to say that we have to think about abortion as an intersectional issue. And we’re right back in this moment where we have yet another Supreme Court decision coming down over our heads.
I sit and I have to shake my head, right. I have to take us back to 2012. I’m taking us back because it was also when Mississippi in 2012 of that, there was a voter ID bill right before the state legislature, as well as a personhood bill. And so yes, all the repro folks was like, we gotta, we gotta defeat personhood. We have to defeat it.
And women of color, reproductive justice organizations, SisterSong being one of them, groups like Mississippi in Action, on the ground in Mississippi were like, wait a minute. If we don’t address these issues at the same time, we’re going to set ourselves up for disaster. And all the money, the resources energy went into defeating personhood. And we got that victory—but what happened to voting rights, or that voter ID bill did not work in our favor. And so when we look at where we are in now, it’s because of these decisions that were before us at those, at that time. And that continue to be before us in so many of our different states in particular in the South where our, where the leadership and the expertise and the knowledge of our communities of folks of color gets overlooked.
And so we have missed so many opportunities that have led us to this moment. So I wanted to set us up for that because there’s a clear example, right? That just happened in Mississippi a few years ago, that has set us up for this Supreme Court case that we’re looking at right now.
Michele Goodwin (00:22:01):
Well, and in fact, one can see a thread through so much of that when Black people vote. That means Roy Moore doesn’t come into the Senate. Exactly. When Black people are able to vote, then you get two senators from Georgia who help to get Judge Ketanji Brown Jackson onto the Supreme Court.
So when people start connecting the dots, then we see what that means in terms of democracy, absolutely, domestically and also abroad.
So Lourdes, I wanna turn this over to you because your work is domestic and international. And sometimes there is the deep naval gazing that takes place in the United States, where there’s a failure to understand that what happens here can have significant impacts abroad, or liberation here doesn’t necessarily mean liberation abroad, such as the Helms Amendment. So if you could help us level set just a little bit there in terms of what’s happening on the domestic front in terms of our courts, but also what we need to be thinking about abroad.
Lourdes Rivera (00:22:01):
Yeah. Thank you. First of all, thank you all, it’s really wonderful to be here and, you know, sitting next to these amazing women. And I just wanna acknowledge that there are a few people from our staff here, and I’m really glad to see them out there. Wonderful faces. So before I go global, I just wanna mention that our district court judgem, Judge Carlton Reeves, and our Mississippi case.
So at the district court level and actually at the Fifth Circuit level begrudgingly, but they, but they actually did uphold the Constitution. So our, our district court judge in striking down originally the 15-week ban did make these connections in the opinion—that Mississippi was very busy passing laws to restrict abortion access. And Mississippi was at the same time, has this long history of suppressing the vote, right. Of not even ratifying the 19th Amendment until the 1980s. Of you know, not lifting a finger to, address maternal mortality, not lifting a finger to address infant mortality while claiming that you know, they were passing these abortion laws in order to further women’s health. So he really called it in, in his words, pure gaslighting.
So you know, our judge you know, threaded this needle and, and really made these connections.
I think, you know, pulling the lens out more globally when Roe was initially decided it was a beacon, right? It, it, it had this ripple effect, you know, in, in other parts of the world as well. But now the rest of the world is surpassing us. You know, we are seeing well, since 1994, since the Cairo conference, the, the, the women’s right conference in, in, in 1994, 60 countries, six zero countries have liberalized their abortion laws.
So that’s been the global trend is to liberalize their abortion laws. Yet, you know, since since Roe, you know, there’s been like this picking at the right to abortion—first with the Hyde Amendment basically saying domestically that poor women could not use Medicaid benefits to cover access to abortion. And then, you know, states layer upon layer upon layer of restrictions, making it really difficult, you know, to access.
And then with the change on the Supreme Court, there’s just in this overdrive to block access to abortion, just to outright ban it. So globally there’s been this expansion and also, being a global organization, the other observation is there are lessons that we could be learning from outside of the us, because we see authoritarian governments doing the same thing. Being very anti-democratic attacking civic participation and spaces for civil society, attacking LGBT rights and abortion rights and women’s rights. Because it’s an ideology of inequality and it’s an ideology of imposing traditional hierarchies. Right.
Michele Goodwin (00:25:41):
So I wanna level-set a little bit, and I hope you all don’t mind if I interject a little bit when, when you’re talking, because if we think about Roe v. Wade, 1973, 7-2 opinion, five of those seven justices were Republican appointed.
Justice Blackmun, who wrote the opinion and Roe v. Wade was put on the court by Richard Nixon. We have Prescott Bush, who was the father of George HW Bush, who was the treasurer of planned parenthood. That’s just level set for those
Melissa Murray (00:26:07):
More level setting: H.W. Bush, the son of Prescott Bush, was known as “Rubbers” Bush when he served in the House of Representatives, because he was so supportive of family planning.
Ronald Reagan is the governor of California who signed into law, the California Therapeutic Abortion Act. This was not a polarized issue.
Michele Goodwin (00:26:28):
It was not, not Dr. King in 1966, received an award from Planned Parenthood for his humanitarian work. And the speech that he wrote for that was just absolutely level-setting. Because in that speech, he said it was cruel for a child to be born into a family where it was not wanted and cruel to force a woman into a motherhood that she was not prepared for and did not. Really worth reading and noting.
And the reason why say that is because there are people who today might think, well, this is the way it always was. No, and it’s not the way that it always was. And Justice Blackmun even speaks about that in Roe v. Wade; Pilgrims were performing abortions and whatnot. We, we won’t go deep into all of that, but I think it’s important for our listening audience to have a broader, deeper understanding, but I wanna put this out to, to you all, and anybody who wants to take it can, but Roe was not a north star in and of itself. And if you can unpack that just a little bit, because for folks who are not like, oh, we lose Roe and yes, we want the women’s health protection act to be enacted by Congress. And we can talk about that, but what were the problems post Roe, anybody wanna jump in?
Monica Simpson (00:27:37):
I just wanted to say it explicitly, like Roe was always the floor, right. If we really think about it. So thank yeah. To get a right is important, right. To make that landmark case be what it was for this movement for reproductive freedom was important. So it’s not to take anything away from that, but one of the things that, you know, or some of the things that we talk about in particular in the reproductive justice movement is that when we only think about having the right to an issue, but not having access, then do you really have the right? And that’s really the issue that we see with Roe.
So it’s like, yay. Roe checkmark. But are we thinking about the fact that we still have some states that only have one abortion clinic, like, like, you know, Mississippi, like Kentucky, are we thinking about the fact that the, the pay gap, right. Like wages, like folks not even getting what they need. So economic justice is an issue. If we’re thinking about the fact, that maternal mortality is an issue in this country and was directly connected to that. That is an issue that we have to talk about when thinking about again, the implications of like a Roe, and that being a north star.
And so we’ve always seen Roe as like, yes, it is here and we want to build upon it, but this gives us an opportunity to think about, like, how do we want to create the reproductive justice necessary, right. For folks to be able to live their lives in the way that feels. Right. So I just had to say that explicitly, that Roe is the floor right. In, in a lot of ways. And then for most people, we’ve, we’re already living in a post-Roe world.
Right. Like we keep talking about, oh, Roe goes, there are people who are living in states across this country in particular, in the South, who are, we have never even been able to access whatever this Roe thing is that you’re talking about anyway. Right. So I, I just wanted to just bring that into the conversation, because I think that’s important to name.
Melissa Murray (00:29:15):
I would also add Roe was not the only path to reproductive rights that was available to the court. At the time Roe was being litigated, there were a number of other challenges to abortion laws and other laws that impinged on reproductive freedom throughout the country. There was a challenge to New York’s abortion law here: Hall v. Lefkowitz. And it was headed by feminist lawyers, including Florence Kennedy, a masterful African American woman who served as a bridge between the feminist movement and the Black Power movement.
And they were making intersectional claims. They argued that access to abortion not only implicated privacy, but also implicated sex discrimination claims, gender equality, class equality. I mean, they were thinking about this broadly. They talked about compelled pregnancy as cruel and unusual punishment.
So it was a much richer and more robust set of claims that they were making.
At the same time in Connecticut, there was a challenge Abele vs. Markle, also known as Women v. Connecticut, that were making similarly intersectional claims that were much broader than privacy. Ruth Bader Ginsburg under the auspices of the ACLU’s Women Rights Project, was litigating a case called Struck v. Secretary of Defense, which was about a military policy that required pregnant service persons to have an abortion. Stop and take a beat on that: The federal government requiring you to have an abortion or lose your job. You either had to have an abortion, or you had to leave the service. You could not maintain your pregnancy, which is what this service person wanted to do.
And Ginsburg thought this was the vehicle for reproductive rights at the court, because it made clear that it wasn’t necessarily about avoiding parenthood, but rather choosing parenthood on your terms.
All of those cases got mooted out. The military changed its policy, New York repealed its law. The Connecticut challenge got stifled, and it was Roe v. Wade. The challenge brought by two women lawyers out of Texas, literally three years out of law school you know, tremendous achievement, but they focused on privacy because there had been an earlier case, Bachelor v. Buchanan, which is a challenge to Texas’s sodomy law—the law that later got overturned in Lawrence v. Texas in 2003, and that had been rooted in Griswold [v. Connecticut], and privacy. And so they followed it, but I mean, this is all serendipity, it’s not an inevitability. And the question is why haven’t we recuperated those lost frames?
Michele Goodwin (00:31:47):
That’s a really good question because I think so much of what you’ve just spoken about gets to pure issues of justice when we’re thinking about race and socioeconomics, and to think about the case of Captain Kathy Struck. And as you say, to take a beat on that, yeah. Imagine a person in the military, she was in the military, she’s a captain, she’s a nurse, and being forced to have an abortion or else lose your job. And nine times she appealed and she ultimately did give her child up for adoption. Right.
And so you see this right in the backdrop of Roe v. Wade, this is pre Roe v. Wade. And so, so let’s talk about that the way in which race has had this enormous impact within our society. And I don’t think that we do justice to a conversation like this. If we don’t actually do a little bit of level setting about what it means in terms of a history of reproduction, being a space of political football for those in power here. Anybody wanna jump in on that and what that looks like?
Lourdes Rivera (00:32:53):
Yeah. I, I do want to just spend a minute talking about Roe. I think that everything that Monica and and Melissa have said are absolutely true. At the same time, I think we have to recognize that without Roe, we are gonna see a lot more just criminalization. Right. You know, and, and, and that’s a piece that we can’t you know, we, we can’t overlook, right? Yeah.
Michele Goodwin (00:33:19):
Lourdes Rivera (00:33:20):
It’s so it’s it’s so it’s, it’s has been completely imperfect, but it’s also been very important. And you know, we’ve, we’ve had to do a lot more.
Michele Goodwin (00:33:36):
I mean, I, I think that they’re not mutually exclusive to talk about the importance of Roe, but then also who’s left behind. Absolutely. Right. It’s like thinking about the 19th Amendment and voting rights. But it’s Fannie Lou Hamer, who in the 1960s and Black people being beaten up on a bridge saying, we just want the right to vote.
As many 19th Amendments as you can have, and 15th Amendments and all the rest of that. If Black will still have to be pummeled, people murdered to just attain this voting right. Then for some it’s more illusory than real. Right. So we can hold both at the same time.
So what does this history look like? Because I think if we don’t say it enough, then it just kind of flies over the head that this has been a long arc towards justice. And not just a matter of the last few years of the rug of reproductive rights, health and justice being pulled out.
Lourdes Rivera (00:34:29):
I can say that my personal entry point into this work was about sterilization of Puerto Rican women. Yeah. You know, one third of my mother’s generation was sterilized, often without their informed consent. Right. So, you know, and, and a lot of that was very close to home for me. I remember growing up, hearing people talking about ‘La Operacion’ and everybody knew what they were talking about. And, and I just remember just being so petrified of the idea of pregnancy, because I didn’t want the operation. So this is being a child and thinking about this.
Michele Goodwin (00:35:08):
Important, right? I mean, that’s part of the conversation that people don’t think about. Even people who are deeply concerned right now about what could happen in terms of abortion rights for them that’s new. Yeah. Right. Having to register with that.
Monica Simpson (00:35:22):
It is. And what’s interesting as we’ve been especially talking to a lot of Black women in the South, as in, in doing a lot of the research that we’ve done and we’ve done that at, across like the full spectrum of like our reproductive lives. Right. And in so many of those conversations that we’ve had and people are like, they think that abortion, it just started, like, it’s just a thing that just became a thing. And the more we educate people on the fact that we we’ve always controlled our own fertility, right. We have done that, you know, since the time we were stolen from the land that we originated from and brought to this land to labor upon it, right. Like that we have midwives, folks who understood how to use certain herbs. All we have, we have so many examples.
Michele Goodwin (00:36:05):
The funny thing, Monica is that, you know, there is a way in which there are forms of patriarchy and masculinity that have so invested within these spaces that people actually think that there were guys with stethoscopes and lab coats 2,000 years ago, roaming around the planes of Africa. No. Right. I mean, but like when people think about it, like, well, there must have been some guys over there to do that work.
Monica Simpson (00:36:28):
What’s interesting is that “those guys in those coats” used our bodies one to determine how they were going to then do their work. And they also came to the grand midwives of the South to learn how to also do the things that they do now in this ob-gyn world that we are, that we all talk about and we advocate for, and also have to push against sometimes.
So I think it’s just important for us to see the, just the beauty of our own communities and the hardships of our own communities. Right. Of like how we’ve had to always control our own fertility. And when we frame it to people in that way, it blows their minds every single time. For especially folks at the grassroots level who are just trying to find their way of like entering into this conversation.
And what’s also interesting is that we’ve, we’ve found that when we’ve gone into our communities and I think this is one of the things that has made it difficult for just repro in general, right. We go in with this very single issue, abortion now, abortion this right. And we forget that we have to talk about the fullness of the lives of the folks that we’re talking about. And that is just one piece important piece, but one piece, right. Of our reproductive decision making and or lives.
And so again, it just kind of forces me into thinking about if we started from this reproductive justice frame of thinking about our ability to have the children that we want, in the ways that we want. To prevent our pregnancies, without shame and without dignity, to be able to parent those children that we have in healthy and safe environments. If we thought about this from a more holistic bodily autonomy perspective, like how different this conversation will be and how then we can really deeply, more deeply connect that to the conversation of democracy, because it was looking at it in a holistic view.
Michele Goodwin (00:38:05):
Well, you know, if you all want to snap your fingers at any time. So, so two points that I wanna make and turn to you, Melissa, which is that, you know, it was Sojourner Tryth in 1851 in her speech, “Ain’t I A Woman” which most people remember for chilvary, which is sad because at the beginning of the speech, she says: “And I bore 13 children and saw nearly each one snatched from my arms and nobody heard my cry, but God. Ain’t a woman?”
So when we talk about what this enterprise means over time, what Black women literally have been saying on public platforms and what sadly has not really resonated and taken root in the soil. So, you know, to cross that arc into the last century, Melissa, you wrote a very important piece that was published last year in the Harvard Law Review that took on some of what Justice Thomas has been talking about.
We saw in the early part of the 20th century, the U.S. eugenics movement taking foot and, and with a pivotal case before the United States Supreme court Buck v. Bell that actually involved a young woman who was white who had been coercively sterilized, raped, pregnant at 16, had a child that was out of wedlock—and Virginia had its law challenged.
It was a test case that they set up and it went before the United States Supreme Court. And Melissa, tell us a little bit about that case and also about your article and why you took on unpacking what’s wrong in the jurisprudence of justice Thomas in this area?
Melissa Murray (00:39:43):
Well, to be clear, Michelle, I only scratched the surface. And I haven’t even gotten to his wife’s text messages.
Michele Goodwin (00:39:57):
That’s the next time. Oh my God. That we are here.
Melissa Murray (00:40:02):
So Buck v. Bell as Michelle has intimated is a case from the 1920s challenging Virginia’s compulsory sterilization law and Michelle’s set it up really well.
We talk about the eugenics movement and, and it’s very much in vogue among conservatives right now to talk about the eugenics movement as though we’re very racially focused and it was. But its real focus was not on people of color. It was on white people. What the eugenics movement primarily sought to do was to optimize the purity of the white race. It was a white supremacy movement. And so it was a white supremacy movement, so it was not surpassing that Carrie Buck got caught up in the thrall of eugenics because she was poor. She was pregnant out of wedlock. She was undereducated and she was not performing whiteness in a way that was optimizing the white race.
Eugenicists weren’t really concerned with Black people, other than preventing them from white people, which would obviously not optimize white supremacy. Nor were they very concerned with non-native born whites. They tried to keep them out of the country through immigration laws, but in terms of reproductive policies, they were focused on white people and in particular white women who were not performing whiteness the right way. I say all of that because Justice Thomas in a very little watched case from the shadow docket. So this is where all of the things come together.
This case is called Box v. Planned Parenthood of Indiana and Kentucky. It was a 2019 shadow docket decision, challenging two Indiana laws, one that required the funereal disposal of fetal remains. And the other that was essentially a trait selection law, a reason ban that prevented abortion, if it was undertaken for purposes of race or sex selection or because of the diagnosis of a fetal anomaly. And Justice Thomas, you know, the Court decided to take up the funeral law and they upheld it.
They decided to deny cert on the trade selection law, which prompted Justice Thomas to issue a concurrence in which he agreed with his colleagues, that this was an issue that needed to percolate at the lower courts. But, he said, the time was coming when the Court would not be able to avoid its obligation to weigh in on whether a state could take these modest interventions to prevent abortion from fulfilling its “eugenic potential.”
And I initially started writing this and I, I wanted to call it “Justice Thomas’s Reproductive Justice,” because he was essentially tapping into the success of the reproductive justice movement, insulting oh, reproductive rights with questions of race and class equality by essentially saying, abortion isn’t just a burden to Black women when we restrict it. Abortion is a burden on the Black community because it’s a form deracination. That’s essentially the pivot that he is making.
And he’s arguing that Black women are these unwitting dupes of eugenicists like Margaret Sanger, and they’re essentially allowing the eugenics into the Black community, into the womb, to effectively deracinate the future of Black people.
And this sounds off the wall and insane. And, and it kind of is, and you know, lots of people stepped into say, you really selectively interpreted the history of this moment and, and it’s true. And he’s also left out the notion that Margaret Sanger’s work with the birth control movement’s very different from the history of abortion. In fact, the laws criminalizing abortion arise in part because of the professionalization of the medical profession, and because of demographic anxieties that native born white women are limiting the size of their families, while immigrant women and newly freed African American women are not. I mean, it’s a question about replacement theory, if we’re going to use the modern parlance.
Justice Thomas doesn’t talk about that at all. Instead it’s this modern day movement where the disproportionate incidents of abortion within the Black community is the residue of abortion’s “eugenic potential.” This effort to use eugenics and abortion, to corral and limit and thwart Black political power by limiting Black reproduction. No one joined this concurrence, but that doesn’t matter because Justice Thomas has legions of clerk in the lower federal courts. And they all talk about it.
And in the, in the Cloud case from the Sixth Circuit this year, Alice Batchelder wrote the majority opinion. She cited the Box concurrence. And then there are, I think, five other concurrences, every single one of them cited this concurrence. It has been cited in almost every other abortion case, even in situations where reason bans and trait selection laws are not on the table. So it has had legs, and he’s sitting back somewhere stroking a hairless cat because this off-the-wall completely…
Michele Goodwin (00:44:54):
Terrible image. But yes, I trust that that’s probably happening.
Melissa Murray (00:44:59):
I mean, it’s had legs, it’s done exactly what he wanted it to do.
Lourdes Rivera (00:45:03):
And, Buck v. Bell has not been …
Melissa Murray (00:45:06):
It’s never been overturned and he doesn’t, he mentions it once only to say the Court gave the perimeter of legitimacy to Buck v. Bell, but never connects: The real issue around eugenics is sterilization. It’s not abortion.
Michele Goodwin (00:45:18):
That’s not that’s right, right. Monica, you were gonna jump in there.
Monica Simpon (00:45:21):
You know, I’m not the legal one up here. I’m not the lawyer. Let me just make that really clear. But when I hear this, when I hear this, and I think about the ripple effect that this has, it makes me think about work that we had to do, you know, at, at the organizing level on the ground, whenever the, this, this, this campaign came about saying that, you know, you know, Black children are, you know, an endangered species and like all of this, like …
Michele Goodwin (00:45:47):
And these horrible ads, if you haven’t seen these multiple-story advertisements on the sides of buildings that are just –
Melissa Murray (00:45:55):
“The most dangerous place for a Black child is in her mother’s womb.”
Monica Simpson (00:45:59):
Yeah. “The most dangerous place for an African American child is in the mother’s womb.” And so we had to organize to get these things taken down. Like we knew we had Trust Black Women became a thing because of that. So that was before hashtags were a thing, but we were like, you know, trust Black women to make our own decisions about our bodies and get up off of us. Right.
But on top of that, there was this, this movement of folks that really got energized right. Of Black folks saying the more you have abortions, the more you’re taking our people away. And so I’m, I’m just, I’m just making that connection to the fact that there is a movement of folks that would follow. Right?
Michele Goodwin (00:46:34):
And that’s the importance about clarifying, so that people understand and don’t follow the person who’s stroking the hairless cat.
Lourdes Rivera (00:46:41):
But there there’s a precursor to that campaign, which was the pregnant women who were you know, using drugs to pay them to sterilize them. Right. You know? And so that was that precursor.
Monica Simpson (00:46:57):
That was absolutely bad.
Michele Goodwin (00:46:58):
What you see over time then is again, sort of Black women being sort of expedient scapegoats, tropes for these movements and even anti-abortion laws that are now named after people like Frederick Douglass and so forth. You just can’t make up just what this looks like. It’s almost like saying, you know, that the sheds that Black people were kept in when they were enslaved were immigrant quarters today, right. Like the kind of reframing of these narratives are really dangerous. Yeah. And I think that perhaps people get caught up in this because they really don’t understand history and that they really don’t understand and spend time with what this all means.
Lourdes, when you talk about what this means in terms of your mother’s generation and, and the sterilizations, when people don’t know about the Mississippi appendectomy, the Judge Carlton Reeves talks about, the footnote.
In the Dobbs, you know, in response to the stay, that’s put on the Mississippi law and speaking about, you know, Black girls, 10, 11, 12 years old being coercively sterilized. And it being called the Mississippi appendectomy. Once we get to the 1950s and so forth. And if people don’t know that, you know, Nazi the Nazi eugenics movement is actually learned from the United States, that the Nazis came to the United States after Buck v. bell and said, we can do some of this too. And then U.S. lawmakers saying the Nazis are beating us at our own. We need to speed it up. Right. If you’re not sitting sort of learning this, then all of this can seem a bit of a shock, but if you understand this, then you can see mm-hmm, <affirmative>, you know, perhaps a little bit in a little bit more nuanced way.
So yes, before I turn to questions from our audience and we’re about to get there I want to just spin a moment thinking about what’s happening at the state level. So what are some of the laws that are now taking shape outside of Texas, an SBA eight, where there’s the six week abortion ban with no exceptions for rape or incest? The Mississippi law has not gone into effect because there has been a stay against it, but that’s what the Supreme court’s looking, but that’s not all, so lawyers, you wanna start us off with what else is happening across the country right now?
Lourdes Rivera (00:49:15):
Yeah, absolutely. Well you know, there are a number of states that are, are, you know, introducing copycat laws, you know, that, and, and maybe we should actually talk about what the Texas law does because you know, just for people who may not know. So SB 8 empowers any Tom, Dick or Harry to sue an abortion care provider or anyone who assists someone to obtain an abortion after six weeks of pregnancy for $10,000 in court. So it basically encourages vigilantism to, and, and it’s really chilled. It’s really stopped abortion in Texas after six weeks.
People are going out of state. Those who can go out of state, there are a lot of people who can’t go out of state, you know, immigrant people who can’t go through immigration checkpoints to travel out of state. So, so it’s really had this it’s, it’s basically Roe is a dead letter after six weeks in Texas. And you know, other states are taking note and introducing really copycat laws in, in different states, including Oklahoma, Oklahoma is going through, you know, it’s going through the legislative process. And Oklahoma has been one of those states that has received a lot of those patients from Texas. And so we potentially can end up with whole regions in the country, predominantly in the South, and…
Michele Goodwin (00:50:44):
What about the trigger effect? Right. So let’s say that the Supreme court upholds, the Mississippi law, people have heard this terminology of trigger. What does that mean? Trigger laws.
Lourdes Rivera (00:50:52):
So there there’re about there are 13 states, Wyoming just passed one. So there are 13 states with trigger bans, and basically they’re designed to do what it sounds like, which is to go into effect when an, if Roe gets overturned in hold or in part. So there are about seven states that have the language of in hold or in part, but, but it’s really important for people to understand that not in every state will day one abortion be banned because depending on the state, there are gonna be procedural steps that the state will have to take in order for a trigger ban to be in effect. Right? So, so people have to pay attention to what’s happening, right.
Michele Goodwin (00:51:36):
And about to turn it to the audience. But Melissa really quickly before we do, so Mississippi has this 15 week abortion ban and that there was a stay issued against it by Judge Carlton Reeves. So it didn’t go into effect, but when Mississippi came to when the case made its way to the Supreme court, Mississippi, wasn’t just talking about the 15 week ban. Melissa, what is it that Mississippi then wanted and why now from the Supreme court?
Melissa Murray (00:52:06):
Sure. So, when Mississippi filed its petition for certiorari before the court, I think in 2019, it framed its requests in very modest terms. Like we’re just trying to figure out whether viability is even a salient concept in your jurisprudence anymore. Let us know if a 15 week bans, okay, that’s all we wanna know, like very, very modest and nothing happened. The court sat on that petition for a very time. Justice—
Michele Goodwin (00:52:30):
Justice Ruth Bader Ginsburg was still alive.
Melissa Murray (00:52:33):
She was still alive while the court was sitting on it. Fast forward to September 2020, Justice Ginsburg dies. The court is granted cert on the petition and they’re going to hear the case in its first brief before the court in the fall of 2021. Mississippi’s asks are suddenly more aggressive.
So this is not a modest, tell us about viability. They are explicitly asking the court to overrule Roe v. Wade and Planned Parenthood v. Casey. Nothing has changed. Not one thing has changed except the composition of the court. Right? And so again, all of these laws, these copycat laws that Lourdes has mentioned, these being passed, even as Roe continues to be good law, but all of these states are operating with the assumption that Roe is a dead letter and that we are operating in a post-Roe landscape. And they’re just getting ahead of it. Like they’re just lining up to do what they’re going to do until Roe is finally put in a coffin. That’s nothing more than a change in personnel on the Court. Nothing is different.
Michele Goodwin (00:53:35):
It’s what makes it all so dangerous, isn’t it? Right. All right, well Lourdes is cueing us up with, with the response to that, I think that we have the mic for folks who have questions. Right.
Lourdes Rivera (00:53:47):
All right. Yeah. And I just wanna acknowledge that, you know, we have some of the case team in the audience from the Center for Reproductive Rights. You know the Mississippi case is, is one of our challenges. And so yeah, I, and they’ve just been doing for nominal job in the case. So I just wanna, thank you.
Michele Goodwin (00:54:10):
And I also want to say for those who are viewing online as well, if you have questions, then please cue them up. We have someone who’s paying attention to that and we’ll make sure that I know that you’re asking a question, but we have someone at the mic. Thank you so much.
Question 1 (00:54:28):
Thank you all for being here. This is a really exciting night. It seems like there’s a lot of different spaces that advocacy could go forward. Is it like, is it packing the court or rethinking the number of seats on the Supreme court? Is it like focusing on the midterms and kind of like rallying Democrats again about the threat of Roe falling? Is it state legislatures? Is it just throwing funds at local abortion funds? Like is it let’s just throw everything at the wall or do any of those options seem like the most promising to ensure what y’all are talking about access? Thanks.
Michele Goodwin (00:55:01):
Who wants to take that?
Melissa Murray (00:55:03):
We don’t live, we don’t live single-issue lives.
Monica Simpson (00:55:05):
We have to do the ’em. All right. And I think that’s, that is the key to this moment.
Michele Goodwin (00:55:10):
That was a planted question so that we wouldn’t have that harmonious answer here. Right? Amazing.
Monica Simpson (00:55:15):
But that’s the key to this moment, right? Like white supremacy works because it constantly makes us be in this, in this defensive position and like pushes us and go into all these different directions of all, all times. Right. And so what happens is we’ll like put all of our energy and resources behind one thing, and then they’ll shift and we’re like, oh no, we gotta go over here now. And then they’ll shift and then we’ll go over here.
So basically we’re following, you know, our opposition, as opposed to saying no, we’re actually gonna put ourselves in all these different places. So no matter where you come, we still gonna win. Right. And so I think that, I mean, that’s just how I would answer that question. We have, have to hit it at all levels and there are organizations that hold it down in many different lanes. And so whatever your passion is, like get in on that. But we do, we cannot have single-issue movements. We cannot have a single-issue solution in this moment because we don’t live single-issue lives in our lives truly depend on us all working at this thing together. Yeah.
Lourdes Rivera (00:56:05):
And we can’t have, we can’t have single strategies. Right. Really. We can’t have single strategies. You know, and, and it’s like from culture change yes. You know, because culture is about what we wanna imagine. Exactly. What’s the vision. And you know, that then gets translated into law and policy down the road. Right. So it’s, it’s you know, and, and I just want to channel some of our friends, you know, who do this culture change work. But I also, you know, on the flip side, I also want us to really caution us about saying, okay, you know, like, Roe is over, throw up our hands. The courts and law are really important institutions and pillars of democracy. And so we also can’t you know, just walk away from the court either.
Michele Goodwin (00:56:51):
No, and there’s a lot, you said about jurisprudence and exile as well. Lay the ground for that better and more just society that comes along. Thank you so much for your question. We really appreciate it. And we’ve got a cue, and it’s always great when you get to see your former research assistant at the microphone.
Hi everyone and lovely to see you as well. Professor Goodwin. My question was pertaining to something professor Murray, you had just mentioned about the sort of shift we’ve seen as the courts become more of like an open invitation for lawlessness and how litigants are posing questions before the court that they wouldn’t even have considered asking before. I’m thinking about the sort of similar shift we’re seeing in the rhetoric of legislators. I think before they used to at least pretend that, oh, we’re thinking about women’s health, we’re concerned about like what, what the mom is going through. But now it’s like very clearly about punishing people and like very sort of visceral attacks on these individuals. And so I was wondering how we think that that shift could or should affect like legal and policy shifts on our end.
Melissa Murray (00:58:07):
So this is a terrific question. So when we talk about what the shift in the court’s personnel has meant for the court, we liken it to the Stanford marshmallow experiment. So this is if you have children, you know, you’ve already done this experiment at home where, you know, you give a child, an eight year old, the opportunity to sit in a room with one marshmallow and you leave. And, but if, if you don’t eat the marshmallow, when I come back, you can have two. And the eight year old always eats the marshmallow. The court is like the eight year old. Like we could go slow right now, or we could eat all and have more marshmallows later, or we could just eat all the marshmallows right now. And that’s what the court’s doing. Like, you only need four people to vote, to grant cert on a case.
And in the past the fact of a five to, to five to four conservative majority meant that they weren’t always sure where their fifth vote would be. And so they sort of proceeded cautiously. They didn’t wanna have real defeats on many of their key issues. So, so they tread cautiously. Now they don’t need the chief justice. They have a solid five conservative and, and they can usually pick off a six, they’re, they’re taking everything. So we are seeing right now, affirmative action and gun rights and abortion. And there, there’s also the question of the website designer and same sex marriage and, you know, religious objections to same sex marriage. So it’s just like, all the marshmallows all the time.
On the legislative side, we’re seeing the same kind of thing, only, it’s not necessarily about eating marshmallows, but saying the quiet part out loud. We’ve always known what was animating these laws, and today, they’re just saying that part, like it’s not actually about women’s health. We don’t care about women’s health. And we told you that a long time ago, because we never enacted Medicaid. We never expanded Medicaid. We didn’t use federal funds to expand TANF. We didn’t care about women. Now. We’re just being really transparent about how much we don’t care. What we really care about is punishment.
So what do you do about that if you’re a progressive? That’s a harder question. Right, because they have numbers right now. They have institutions again, I come back to, we don’t live single-issue lives. We have been inattentive to perhaps the right that undergirds every other, right? Like, I mean, this is why I love being on the Brennan center board because the Brennan center for Justice, for democracy, thinking about all of the conditions for democracy. Yes. Abortion is essential for democracy. Democracy is essential for abortion, abortion period. We have to, we have to vote. We have to get out there. Like we can’t afford to sit out midterms. And because like, we know what’s supposed to happen in the midterms. Why aren’t we organizing to prevent it?
Michele Goodwin (01:00:39):
That’s right. That’s right. And there commute that have always understood that. I mean, I still think that there’s a lot to be said that hasn’t been fully unpacked about the way in which, and I said it at the time, the way in which Black women voted in 2016, the clearest voting block that said, no, okay. This is dangerous. And the fact that there was all sorts of news media about, we need to a rural here and rural there and nobody paying attention yeah. To Black women. Yeah. Why is it that 96% of you told us no. And that this would be a bad idea? And that, that work still hasn’t been done? We have another question at the mic.
Hi, thank you all so much for being here. And I apologize in advance if I lose my words. You’re all very cool.
Michele Goodwin (01:01:25):
You’re cool too. You’re very cool.
I’ll go do happy jumps later – but I guess my question is, every high school in America learns about the role of mass protests and civil disobedience in achieving major voting rights, legal victories. And I know at the Brennan center, we talk often about the role of protest and the role of organizing and, and moving the law forward. And I’m curious what you all would have to say about where is the movement for reproductive justice in, in the world and in, just in the people we know outside of the courts and where, where are the protests, where is the civil disobedience? What is that future and how can that play a role in either defending legal protections or advancing them?
Lourdes Rivera (01:02:09):
Well, we’ve seen some remarkable protest throughout the world. You know, the green wave in Latin America. Right. In Argentina, in Chile, Mexico, you know, and we’ve been seeing, you know, some of this has been disrupted by the what’s happening in Ukraine, but in Poland, you know, social movements in Ireland. So, you know, and, and what we saw in, in Latin America and in Colombia, for example, there was like a legal strategy and there was a protest strategy, and these things came together, right. As, as part and parcel. And so, and we, in our own history, you know, in our own civil rights, we have, you know, the legal strategy married with, with the, with the social movement strategy. And so I, I think it’s part and parcel.
You can’t have one without the other. Because, and I think around the world you know, one of the classes that I’ve taught at Columbia school of public health has been health and human rights. And one of, one of the things that we look at is like, social movements, you don’t make big social leaps forward and legal leaps forward without the social movements on the ground. So, they’re absolutely necessary. I mean, COVID kind of has changed the landscape here in the United States. You know, just people’s lives are hard right now. But yet you know, we saw Black Lives Matter even within the, the height of COVID. And, you know, the whole national debate changed. You know, there was national legislation that was achieved. Not the best, but, it was like stuff that didn’t even move before. Right. And now we’re seeing the backlash.
Michele Goodwin (01:04:15):
Yeah. You know, COVID revealed underlying institutional and structural inequalities. And then we saw ourselves again with those tragic murders of Breonna Taylor, George Floyd and Ahmaud Arbery. Just these, these storms, these horrific storms that came through our lives and that then spread all across the country and world. Thank you so much for your question. So we’re gonna try to squeeze in really, really quick one last question from the audience and thank you all so much for, for being in queue, but we’re mindful of the time. So thank you. You’ve got the mic.
Thank you so much for being here and for being all of you genuinely. I am one of the senior council at the Brennan center who had the privilege of getting to contribute a piece for Ms. And it talked about the history of laws that have controlled women. And while I was writing that piece, I wanted to put my fist through a window because the thing that dawned on me was we are consistently collectively putting all this organization emotional and intellectual power into asking for legitimacy from a discourse that has systematically rejected us, that has never recognized us. And that we have to beg for that even now is infuriating because I, it made me wonder, are we complicit? Are we complicit in our own diminishment with this practice?
And even thinking about this, the name of the, of the bill in the Senate, the Women’s Health Protection Act participates in a long history of talking about our protection, our need, and you know, our health rather than the fundamental fact that abortion is a question of whether you as a human deserve control over your own body
And I know that we know the answer. Genuity has done a brilliant telemedicine study. Women are capable of women and people capable of becoming pregnant, have access to DIY abortion at home safely. There is a study that makes that clear. We are just not giving them access to that. And so the question I have for you is, is while I appreciate the discourse and every day, I’m grateful that there are brilliant lawyers and advocates doing this work. Are we complicit in this? And what would the radical act look like of stopping, asking people who have never recognized our equality, whether they might consider it and instead taking it in our own hands. That’s my question.
Michele Goodwin (01:06:14):
All right. And there’s a lot to unpack in that question and in a very short order, short—who’d like to take it on?
Monica Simpson (01:06:25):
I mean, that just made me really excited cause that’s just where I am in life in general all the time. I feel like that is just like at the heart of the work of reproductive justice, right? Yes. Policy change is necessary and culture shift is necessary and like, we need to be working in lockstep. We know all those things, right. But if we, if we don’t have liberation right, as the focus, then what are we doing this for? And my liberation is bound in your liberation, so we gotta be doing this together. And so I think what makes reproductive justice, my political home and where I feel like I can do that level of work is because we have a liberation focus as to how we do this work and why we do this work. Because…
Let me tell you, I think that there’s a, the other sister that came up here before here too, or person that came up here, cause I cannot assume your gender. I apologize for that. But I will say that there’s a lot of work that we have to do to like mend bridges, and to build trust again, across these different systems that we’re working with. And I think we have an opportunity in this moment to do that, right? One of the reasons why SisterSong took on being the lead plaintiff in the case that we’re in, in Georgia against abortion band is because we knew that it was important for us as an advocacy based organization, as an organization that works with, you know, direct organizing to put ourselves in the front lines of that. So we can actually help shape the way that we’re talking about it and move people towards action in a different kind of way.
Right. And so I think it takes that level of like liberation focus, which is what makes Black Lives Matter and Movement for Black Lives. Like these, these movements move in that way because they’re, they’re seeking liberation. They’re not seeking a right. They’re not seeking a law. They’re not seeking a piece of legislation. They’re seeking the ability to be able to move and move in this world safely and do what they need to do. And I think that’s the approach that reproductive justice takes. And that’s what’s gonna get us to this place of like, we’re not asking for anything anymore, because it’s inherently ours anyway, because I am a human being first and foremost. Right.
So I don’t know if that answers your question directly, but I know that you, you activated me to like be reminded of why I do this work and why reproductive justice for me is the frame, and the movement that I feel is giving us the blueprint for this moment. That is not just about ensuring that we have the abortion justice that we need, but that we’re actually able to live the full lives that we need to live in this world at the same time. So anyway, I hope that answers some of what you wanted.
Michele Goodwin (01:08:50):
You all, please join me and thanking Monica Simpson, Lourdes Rivera, and professor Melissa Murray for being such outstanding, outstanding in the work that they do. Y’all are brilliant. Just what a pleasure for me.
Guests and listeners, that’s it for today’s episode of “On the Issues with Michele Goodwin” at Ms. magazine. I want to thank my guests Professor Melissa Murray, Lourdes Rivera and Monica Simpson, for joining me at the WNYC studios with a live audience and also virtual audience tuning in on what could not be a more critical conversation for these times. And to our listeners. I want to thank you for tuning in for the full story. We hope you’ll join us again for our next episode, where you know, we’ll be reporting rebelling and telling it just like it is and for more information about what you heard today, please look for us at 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 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, iHeartRadio, Google podcast 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. Let us know what you think about our show and please support independent feminist media. Look for us at Msmagazine.com for new content and special episode updates. And if you want to reach us to recommend guests for our show, or topics that you want to hear about, then write to us at [email protected], and we do read our mail.
This has been your host Michele Goodwin, reporting rebelling and telling it just 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 for this episode are Roxy Szal, Oliver Haug and Nassim Alisobhani. Our special media intern is Lily LaSalle. I also want to send a special shout out to the Birnbaum Women’s Law Network, WNYC studios, and as well the Brennan Center. We couldn’t do this work without art and design by Brandy Phipps, editing by Will Alvarez and Kyle Good, music by Chris J. Lee and social media assistance from Lillian LaSalle.