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- “Supreme Court Overturns Roe v. Wade,” Carrie N. Baker, Ms. magazine, Jun. 24 2022.
- “The Supreme Court Clearly Doesn’t Care About Women’s Lives,” Aziza Ahmed, Ms. magazine, Jun. 27 2022.
00:00:01 Michele Goodwin:
Welcome to “On The Issues with Michele Goodwin” at Ms. Magazine, a show where we report, rebel, and tell it just like it is. On our show, history matters. We examine the past as we think about the future, and in this episode, I’m speaking directly to you as we examine history in the wake of the Supreme Court dismantling Roe v. Wade, overturning it and Planned Parenthood v. Casey.
What does this mean in terms of how the court has examined history? How do we describe what the Supreme Court has done in dealing a swift kick and blow to at least half of the U.S. population—women, girls, and people who can become pregnant, in the backdrop of the United States being the deadliest place in all of the industrialized world to be pregnant. Where the Supreme Court took up a challenge from the state of Mississippi first with regard to its 15 week abortion ban that made no exceptions for rape or incest, then Mississippi deciding that the court was composed in a particular kind of way that might give it room for the full dismantling of Roe v. Wade if asked after Justice Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch were nominated by President Trump and confirmed to the United States Supreme Court.
What does it mean that Mississippi, a place where its department of health has said that 80 percent of the cardiac deaths in that state during pregnancy are Black women, though they don’t make up 80 percent of the female population in the state? What does this mean in light of the fact that Black women are 118 times more likely to die by carrying a pregnancy to term in Mississippi than by having an abortion?
On today’s show, I’m speaking with you directly. We are not going to have other guests on as we think about what the Supreme Court has issued to Americans and how it sits with the rule of law and American democracy.
The final opinion in the Dobbs case is not much different than the draft opinion that was leaked. As I’ve said previously on this show and other shows, that was a story, but as Professor Steven Vladeck has said the story is actually what was contained in that draft opinion, and after a close reading of the final opinion of the court, it’s not much different than the draft.
Not much effort was taken to clean it up, to perhaps disassociate from the lawyers who had at one point in history, and this is hundreds of years ago, written about coverture and how women were destined to be the property of their husbands and never have independent life for themselves. How it was permissible that women be raped by their husbands without there being any punishment to their husbands, or how it was lawful to discipline a wife every now and then to just keep her in line.
The sources that were cited in that leaked draft opinion, turns out they remain for this final opinion. And in this final opinion not only do we have the dismantling of Roe v. Wade and Planned Parenthood v. Casey, we find a Supreme Court and the majority unwilling to take seriously the grave risks of maternal mortality and morbidity to the women in the United States. Neither does the majority give consideration to cases of rape or incest, essentially allowing states that have enacted anti-abortion measures that make no room for rape or incest, that provide no waivers.
What the Supreme Court has essentially done now is to allow for…be complicit in states enacting laws that would mandate or force a nine, or a 10, or 12 year old girl to carry a pregnancy to term at the behest, in fact the demand, the command of the state’s legislature. Not of her own will, but of that of members of her state’s assembly or legislature.
Now it’s worth noting that overwhelmingly across all of the states that have enacted trigger bands that will go into effect if not immediately then soon thereafter that outright ban abortion or that significantly constrain it, in each one of those state’s legislatures, they are overwhelmingly controlled by men.
You have in the state of Mississippi only 14 percent of that state’s legislature are women. And so, this decision in Mississippi that there will be no exceptions for cases of rape or incest is being made by a legislature that is comprised by over 85 percent male. Overwhelmingly, white male, that now determine that a child should become a child mother under those laws in those states that mandate that there be no abortion and also that there are no exceptions for cases of rape or incest.
Now it is true that people can leave those states like Mississippi and try to obtain an abortion elsewhere, but the reality is, it’s a tale of two cities where some people who are wealthy enough, still subjected to the indignities of having to get a plane ticket and go out of state in order to get essential medical healthcare associated with what was a fundamental, recognized as a fundamental right in the United States up until the Dobbs decision was handed down. It’s still undignified to have to leave the state to travel someplace else to get fundamental healthcare. It’s still undignified to have to leave the state when your life may be at risk, and that’s the reason why you have to leave to get this medical care. It’s still undignified if one has to explain why it is that one is making a choice, a decision about their own reproductive healthcare.
But what we know is that for women who are socioeconomically vulnerable, or the poorest amongst us, for them this will be a grave tragedy. That is to say that for them there are inordinate hurdles in order to get to the safe havens, the sanctuary states such as California, Illinois, Colorado, New York, where they can with dignity, and privacy, and autonomy, and freedom decide their own reproductive healthcare path and potentially save their lives.
Now what do those women have to encounter? Well, it turns out that it’s not a panacea even if you can get to the states where one can actually terminate a pregnancy. That’s because some of those states still have waiting periods of 24 hours, 48 hours, 72 hours or longer, where one must show up at the state, meet with medical personnel for the mandated counseling and then come back as if women have not thought about these decisions in robust, important, and intimate ways.
But that wait period for a woman who is socioeconomically vulnerable means having to take off time from work and hope that one’s job is still available when she returns. It means having to find childcare for the children that already exist. Most women who seek to terminate pregnancies are already mothers, but of course, childcare is not free in the United States, nor is it cheap. It can be very expensive.
So, now in addition to having to think about how one gets out of town to a free state, by train, bus, or plane, and wait in those free states by finding lodging, hopefully with a friend, but if not, having to pay for it, then it means having to think about how one will afford paying for childcare, or does this mean that the children must also come along to New York, Illinois, Colorado, California, states that are free.
And so, there is the travel component. There’s the waiting component. The finding shelter in the free state. Figuring out how to make sure that children are cared for. The concern about making sure that a job is still available when the woman comes back to her home state. But in addition to all of these, and we haven’t even talked about what it means to be fed while you’re away and also for your children to be fed while you’re away, but then, what do these issues mean for a nine or 10 year old girl?
How does she make her way out of state? How does she get the reproductive healthcare that she needs? The answer is, we know. We know very well that 10 and 11 year olds will struggle to come forward even to their closest family member, but at least prior to the Dobbs decision, that was within the realm of possibilities. Communicate with a family member and hopefully get the reproductive healthcare that the girl desires and needs. But now, as there are no waivers, no exceptions, those girls are stuck in the position as other women who want to terminate a pregnancy.
Those girls have to figure out, how do they get out of state? How do they raise enough money to be able to do so? Of course, that’s a virtual impossibility, and they have to hope that there are adults in their lives that will be able to help them navigate. I mean, if we did this thought experiment, imagine what a 13 year old who’s become pregnant because of a stepfather, uncle, or father, now faces the horrible possibilities of being a 13 year old mother and living for the rest of her life with the knowledge that she labored from the pregnancy involving a rape.
But let’s say that she says that she doesn’t want that and she wants to be able to have an abortion. Does she have enough money, or does she turn to in order to get the services that she wants and needs, and let’s remember that in 2016 in the case Whole Women’s Health v. Hellerstedt, the United States Supreme Court acknowledged that a woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion. Certainly, that 13 year old has to think about the medical risks of being pregnant.
Those medical risks that include hemorrhaging, preeclampsia, the possibility of an ectopic pregnancy, gestational diabetes, and of course, there’s the possibility of death. And so, what she has to think about how she navigates these systems. Does she file a police report? Where does she go to to file a police report? The police report the case to child protective services. Does this mean that she is taken away from the home?
We’ll get to that later. She has to possibly find a judge to get a judicial bypass. How does she find that judge? Of course, there’s finding the clinic. How does she find the clinic that will provide her the reproductive healthcare services that she needs? How in the world does she stay 24 hours, 48 hours, 72 hours out of town? Is she a runaway?
All of these questions come to bear, and the desperation, the sort of chilling effect that comes along with this case, and as well, the Texas SB 8 case, which bans abortions. That law after six weeks of pregnancy, making no exceptions for rape or incest, and of course, weaponizing fellow citizens to be able to track, surveil, report on, and ultimately sue individuals who aid and abed individuals with terminating a pregnancy.
This certainly could chill a child from conveying to a mother, an aunt, a grandparent the horrors that she has experienced for fear that in telling her story and in getting the help that she needs, the people that she loves the most may be civilly punished. May have to pay a fine of at least 10 thousand dollars along with attorney’s fees.
This is the moment that the United States has awakened to. A time in which the United States is not in the company of its peer nations, England, Germany, France, etcetera, but instead is in the company of countries that have failed democracies. Countries that have totalitarian regimes. Countries that do not trust nor invest in the full equality and citizenship of women. This is where we are today in the United States, and it is no hyperbole. Read the decision yourselves.
And read the concurrence. The Supreme Court in this Dobbs decision claims that there are guardrails to protect contraceptive access and to protect individuals who are LGBTQ from discrimination in marriage equality. But how seriously can we take this majority, especially when one of the members of the majority writes a concurring opinion, Justice Thomas does, known by many reports as the most conservative justice on the United States Supreme Court, and he writes that he wouldn’t mind the court revisiting the precedential value of contraceptive access or same sex marriage.
It is interesting to note that Justice Thomas stopped short of suggesting that the court should consider whether interracial marriages are legitimate. Of course, Justice Thomas thereby either explicitly or implicitly is protecting his own intimacy as he is in an interracial coupling.
Now the dissent in the Dobbs case does as one might expect. They speak to the alarming rates of maternal mortality and morbidity in this country. They speak to the horrors that are the decision itself, how there’s a level of cherry picking, selectivism, opportunism that you find in the majority opinion. Egregious errors and omissions throughout. They speak to what this means in terms of taking away a fundamental right and how the Supreme Court doesn’t engage in that.
In fact, this is a first time that the Supreme Court has taken away a fundamental right and civil liberty in the history of the United States Supreme Court. They are alarmed and we should all be in terms of what this decision represents for our democracy and the rule of law in the United States.
And it would be a mistake to see this case in a silo, apart from what it is that we are seeing in terms of an investigation involving an attempted coup against our government by those who want it to overturn a fair and open election that President Donald Trump did not win.
The decision must not be segregated from the broader aspect of this year’s Supreme Court term, in cases involving the Second Amendment and other cases involving reproductive health rights and justice. Many people right now are deeply disappointed, in mourning, and enraged over the Supreme Court decision and all of it is absolutely understandable.
The concern could be what comes next. Will states seek to ban, bar access to contraception? There are already lawmakers that say that that’s what’s next. There are federal lawmakers that say that they would like to see a federal prohibition against abortion. Could that be next?
There are state lawmakers that are already finding crafty ways to discriminate against children who are trans and to even punish their parents. And so, in many ways, what is shaping up in the United States with the stripping away of civil liberties and civil rights, the disregard of bodily autonomy and liberty frames these times as a new Jane Crow.
A time in which there are free states—as I’ve mentioned before, California, New York, Illinois, Colorado, and others, where a person may receive, a woman, a girl, a person who has the potential for pregnancy, may receive the reproductive healthcare that they seek, they deserve, that they need—and yet, at the same time, we’re living in a nation where in at least 26 states, there will be some level of a full out ban on abortion, full overturn of Roe v Wade, which the Supreme Court has done, or significantly constrained to a very substantial degree.
This is the face of the new America after a Supreme Court decision that’s as shocking and also repressive as the Plessy v Ferguson decision that held that separate but equal would in fact define the law in the United States. But eyes are wide open and should be in terms of what this court represents. Americans are now articulating that they have the least favorable views of the Supreme Court in more than a generation or two. It’s unlikely that that will change any time soon.
With that said, in each episode of the show, we ask about a silver lining. Right now, it may be very hard to grapple with whether there is a silver lining. After all, today where there was only one clinic that provided abortion services, have now been shuttered in many states.
How can there be a silver lining you may want to know in light of the fact that there will be significant harms, even deaths that result from this Supreme Court decision? But I want to remind my listeners, keep in mind that when it is the very darkest, that is when we can see most brilliantly the light of the stars and moon, paths to freedom, and this, I want to be clear, is a joyful noise.
And some of you may say how in the world can we make that, can we do that? And I’ll just remind you that it was by the light of those stars that Harriet Tubman, who was never caught freeing people from the bondages of slavery, that’s how she moved. She was stealth in the night. In the pitch of darkness, she was able to see freedom, to be guided by the stars.
Now, how do we guide ourselves out of this? How do we look forward and take action in a time where action is so desperately needed? How do we hold the federal government to account and how do we use the exercise of voting and going to the ballot boxes in order to create the future that we all deserve, that future generations deserve, that our democracy deserves?
Now, mind you, it is a cruel joke in this opinion when Justice Alito says just go vote. Doesn’t say it exactly that way but he urges that the wheels of democracy can serve a wise purpose here. Now in many ways, it’s a cruel joke because he’s part of a majority on the Court that dismantled voting rights, that is, key provisions of the 1965 Voting Rights Act were dismantled by this court with a vote by Justice Alito.
But that said, voting will become very important. It will be important that Congress ratify Roe v Wade and go even further because Roe was never a north star. It’s important that the President take action and use all of the authority within his might in order to protect women, girls and those who will be harmed by this Supreme Court ruling, and it’s important that we are kind to each other.
It is important that we understand the value of the human dignity of people who are most affected by this Supreme Court ruling. It’s important that there are investments that are made in order to keep people safe on their own underground railroad journeys. It’s important that people step up. Not just corporations that are claiming that they will fly their employees to where they need to go. One wishes that employees would not have to disclose why they need to go anywhere.
But this all said, the important message that I leave with you is one that there is hope. A hope of doing better the next time. The hope of a third reconstruction. If in the abolition of slavery there was the 13th Amendment and 14th Amendment, and there were reconstruction amendments, the 13th Amendment, 14th Amendment, 15th Amendment, abolishing slavery and involuntary servitude, aspects of the Constitution that were not even addressed in the Supreme Court’s ruling. In fact, the 13 Amendment bans exactly what the Supreme Court has done, which is to enforce involuntary servitude.
But it is important the light of the stars. It is important to think about a third reconstruction, and if the first was the ratification of the 13th, 14th, and 15th Amendments, and the second was the 1964 Civil Rights Act and the 1965 Voting Rights Act, then this third reconstruction that our country so desperately needs needs to center the lives of girls, of women, of people who are LGBTQ. Individuals with disabilities. Individuals who have traditionally been shut out of the promise of this democracy, of the promise of the Constitution. It is time to reset our vision. A vision towards what the Constitution stood for, may still stand for, and what is necessary in order to get us there at the federal level, state levels, and also what this means in terms of the kinds of courts that we deserve.
The types of courts that will protect the most vulnerable, uphold our Constitution and not play favorites amongst people.
This has been your host Michele Goodwin reporting, rebelling, and telling it just like it is on our program “On The Issues with Michele Goodwin” at Ms. Magazine. We look forward to having you for our next episode where we will be reporting, rebelling, and telling it just like it is. We will have a Supreme Court review where we not only reflect on the Dobbs decision but as well the full Supreme Court term to understand just what this institution of our democracy has given to us in this term. I look forward to being with you for our next episode.