- 2022 Supreme Court Review: How the Court Dismantled Democracy — “On the Issues with Michele Goodwin”
- “Why Roe Was Never Enough—and What Comes Next,” Jennifer Weiss-Wolf, Ms. magazine, May 3, 2022.
[0:00:04.3] Welcome to On the Issues with Michele Goodwin at Ms. Magazine. You know, we’re a show that reports, rebels, and tells 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 because on our show history matters. We examine the past, as we think about the future. That couldn’t be more relevant for this episode, and as we think about where we are in this country.
Out of the studio, we’re joined with special guest at the National Women’s History Museum for an incredibly important episode that addresses reproductive health rights and justice from a historical point of view, but as we think about matters of history, as we go forward for our future podcasts, thank you for sticking in with us, as we had a little bit of a break over the summer.
There’s so much for us to think about in the coming election term, the 2022 midterms, so much to think about in light of the hearings on the storming and insurrection against the capital and our government, so much to think about in the wake of the post Dobbs era in the United States where we’ve seen a 10-year-old girl fleeing the state of Ohio to get to Indiana in order to terminate a pregnancy after rape. As we’ve seen in the state of Wisconsin with a woman who bled for days, more than 10 days, with an incomplete miscarriage going near death before doctors could provide her the standard medical treatment. A woman in Louisiana who’s forced to carry a pregnancy with a fetus developing without a skull. A girl in Florida being denied the opportunity to terminate her pregnancy by a judge, who says that she’s too immature to decide to have an abortion but somehow mature enough to carry a pregnancy for nine months risking her health and safety and then becoming a mother before even graduating from high school.
There’s so much more in terms of this landscape that’s now capturing our country, and so it is important that we think about history, it’s important that we think about our future, and it’s important for us to think about what comes next, what can we do to create the kind of future that we want for our country.
I couldn’t be more pleased than to be joined by very special guests for this out-of-studio special broadcast. I’m joined by Professor Mary Ziegler. You know her as one of the world’s leading historians of the US abortion debate. She’s the author of Abortion and the Law in America: A Legal History, and her new book couldn’t be more timely, Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment.
I’m also joined by Sarah Dubow, a professor of history at Williams College and author of the award-winning book, Ourselves Unborn: A History of the Fetus in Modern America.
Also, with us today, is Deborah White. Professor White is the Board of Governors Professor of History and Professor of Women and Gender Studies at Rutgers University. She’s also the author of Ar’n’t I a Woman? Female Slaves in the Plantation South.
Thank you for joining us for this special episode. Sit back and take a good listen.
[0:03:41.6] Michele Goodwin:
I want to start first by engaging with you, Professor Deborah White, and I hope it’s okay that we can all be on first names for today’s show.
Deborah, during your decades of work, you have studied the intersections of race, and sex, and gender. Your work has looked at the very origin story of Black women and their kidnap, sex trafficking, labor trafficking, and in fact, your book, Ar’n’t I a Woman? Female Slaves in the Plantation South, such a powerful and important book with helping to level set.
I want to start first with a question that seems to have been overlooked in history and that is how Black women navigated the sexual harms, assaults, and rapes that they encountered when being kidnapped and brought to this new world, and what does that mean in terms of thinking about conversations of reproductive autonomy.
[0:04:53.2] Deborah White:
That’s a big one.
[0:04:54.7] Michele Goodwin:
It certainly is. It’s a lot, and you know, you’re one of the best people that I could find to start us off and answer that question.
[0:05:04.3] Deborah White:
Yeah. So, I know this is about abortion rights, but it really is about bodily autonomy and who controls whose wombs. From the very beginning, African American women were set apart from White women, in this nation, and so that Black women, basically, at the very beginning, in 1662, there is a law that it says that the child follows the condition of the mother, and in as much as the issues of slavery and race had not really been worked out and they were being worked out, you could actually see the progression of how African American women and the control of African American women’s wombs really was that that was going to be how or whether or not slavery was even going to survive.
All right, so the very beginning of this nation’s history, the British, in particular, they decided that the child would follow the condition of the mother, and that meant that, I mean, you know, in Britain, the child followed, you know, based on inheritance rules…
[0:06:45.9] Michele Goodwin:
The status of the father.
[0:06:47.0] Deborah White:
The status of the father, and so what they were saying was that it was really if the woman was a slave…
[0:06:56.6] Michele Goodwin:
Her children would be slaves.
[0:06:57.8] Deborah White:
Then her child would be a slave, and if the woman was free, then the child would be free, so if you were setting up a system of slavery, based on color, you want to make sure that the babies that Black women have are Black or Brown, but they are of color, and that the children that White women have, that they are White, so if you look at the very founding laws of this country, you find that, you know, there was an attempt to control African American and White women’s reproduction.
[0:07:40.4] Michele Goodwin:
So, I want to build upon that because what you’re opening the door to are other matters, as well. So, very recently, just a couple years ago, reported in The New York Times and other media, was a study done by 23andMe along with myriad other researchers to study the DNA of Black people, and what they found were incredibly high links to White male genetics, part of that historic story of slavery, and it seems to me that that connects with what it is that you are saying because if children will inherit the status of their mothers, then that means that Black women are increasingly vulnerable to what would be these kind of perverse incentives. If you want more enslaved people on your plantation, then you force this Black woman to reproduce, and it also then means that if you’re White, you don’t have to worry about that child claiming some inheritance from your estate or your property because that child is the status of that woman. In fact, Black women were considered property, that property that birthed it.
[0:09:00.9] Deborah White:
Yeah. Of course, I mean, that was the thought, and that was the desire, but it never worked out that way. Obviously, White women had children with Black men, and so some of their children were Brown and some Brown children, particularly some women, were the children of White mothers, but I mean, in theory, if you could control the race or the color of the children that were born, then you could essentially control how slavery would proceed, but it was always very, very, very messy, so in some of the very early laws of this nation, you had White women being penalized for having children that were Brown.
[0:10:02.0] Michele Goodwin:
Well, it is messy, isn’t it?
[0:10:03.7] Deborah White:
And they were fined, and sometimes, they were put in jail, and there were all kinds of laws.
I think the bottom line really is that children carry, in some people’s ideas, in some people’s ideology, in fact, children carry the nation, and the way of the nation is determined by the children that come out of women’s wombs, and therefore, it’s been very important to control who marries who, and it’s been very important to control who has sex.
I mean, so the issues of sexual integrity and the issues of reproduction are all tied up together, and with issues of nationalism.
[0:11:02.3] Michele Goodwin:
Sure. Well, you know, it also strikes me, too, by what you’re saying, is the hypodescent rules, you know, otherwise, known as the one drop rule, which, otherwise, colors, no pun intended, exactly what it is that you’re saying here.
[0:11:19.8] Deborah White:
[0:11:21.3] Michele Goodwin:
And then the anti-miscegenation rules, as well, in terms of who can marry whom, I mean, which existed and persisted long beyond slavery’s abolition.
[0:11:31.9] Deborah White:
[0:11:32.3] Michele Goodwin:
Long, deeply beyond Jim Crowe. I mean, 1967 is when the Supreme Court finally strikes down the anti-miscegenation laws.
[0:11:41.0] Deborah White:
[0:11:41.8] Michele Goodwin:
Yeah, and what’s interesting about that, and then we’re going to come back to this, I’m going to turn to Sarah for a moment here, but what strikes me is as being very interesting about 1967 with the Supreme Court finally striking down anti-miscegenation laws is that Virginia came kind of, you know, with full force defending its laws,
wanting to persist into the late 1960s and ‘70s with anti-miscegenation on the books. It’s fascinating, and to your point, one of the ways in which they defend the law is to say that they’re protecting children, they’re protecting future offspring, so fascinating.
Well, Sarah, I’m so happy that you’re joining us for this very important dialogue and conversation. Interestingly, you too have roots at Rutgers, as well, which is really terrific. Rutgers has really just been showing such mightiness across these spaces. Some of our viewers and listeners will know that Ruth Bader Ginsburg, before she was a justice, Ginsburg taught at Rutgers, and so what a fascinating history and present at Rutgers.
So, you’ve taught at a number of places, and your work examines the intersections of gender, law, and politics in the 20th century, and your book, Ourselves Unborn: A History of the Fetus in Modern America, just an incredible page turner, and I highly recommend it to anyone who is considering learning more, wanting to know more in this space.
So, how do we build upon this history that Deborah just started us off with? I know with your work it covers the space before Roe v. Wade. What is the leadup? How do we further contextualize exactly what the concerns were with regard to reproductive health rights justice, if you can, before Roe?
[0:13:58.0] Sarah Dubow:
Thanks. I’m really glad that we began this conversation with Deborah’s longer history and context because I think it’s really impossible to sort of separate the story of the history of reproductive politics, reproductive justice, abortion politics from the history of slavery, of race, of controlling women’s bodies, controlling Black women’s bodies in particular ways, and that history is really completely absent from the Dobbs decisions majority opinion, and I know that we’re not just here to talk about Dobbs, but I did want to sort of start…
[0:14:33.7] Michele Goodwin:
Oh, please start. I mean, because that would talk about a hot mess, you know, opportunistic readings of history, you know, hopscotch around history. I mean, it was an unfortunate just in terms of the quality of the research and the quality of analysis was really far shortened in that opinion.
[0:14:57.8] Sarah Dubow:
Yeah, and I think, at the same time, it was so committed to framing itself as a historical analysis, so I think that the decision really…I mean, I think, it cites the word history sort of 67 times, at least, and you know the conclusion is sort of that he says, you know, there’s this unbroken tradition of prohibiting abortion on pain of criminal punishment from the earliest days of common law through 1973.
[0:15:21.9] Michele Goodwin:
Which is an error.
[0:15:23.9] Sarah Dubow:
It’s an error.
[0:15:24.3] Michele Goodwin:
[0:15:25.1] Sarah Dubow:
It’s an error.
[0:15:27.2] Michele Goodwin:
That’s a polite way of saying it, right, Sarah, it is an error.
[0:15:30.7] Sarah Dubow:
It’s an error. It’s a contradistinction to sort of the consensus view of most historians, and so I thought it might be helpful to just sort of lay out what that consensus really is.
[0:15:41.7] Michele Goodwin:
I think that’s a great place to begin, and as you do, I think it’s worth noting that to the extent that Justice Alito frames himself as an originalist and textualist, and says, well, abortion is not mentioned in the Constitution, it’s worth noting that pregnancy isn’t mentioned in the Constitution, labor and delivery aren’t mentioned in the Constitution, that there are things that are just so normalized in terms of human existence that weren’t mentioned in the Constitution, you know, suggesting that labor, pregnancy, or abortion should be mentioned in the Constitution as if saying male erection should be listed in the Constitution, and I’m not being sloppy or humorous with that, but it’s just that, you know, why exactly this sort of examination of the woman’s body in the Constitution and not a man’s body in a document that was written by and for men, largely.
[0:16:40.5] Sarah Dubow:
Yeah, and I think, I mean, the narrowness of it is a choice, right, I mean, so the premise of the decision is to sort of look at these written laws that were passed around the time of the 14th amendment’s ratification, and to sort of say, look, all of these state laws are criminalizing abortion, and there’s some degree of truth to that, that in the late 19th century there were a series of laws that were passed in the states that were picking up on common law and codifying it, and criminalizing abortion and statutes, and a lot of those laws. I mean, I think the motivation behind those laws is also really important to think about, actually.
[0:17:20.6] Michele Goodwin:
Oh, share, Sarah, because we know what those motivations were. Those were laws that came up in the wake of the demise of slavery.
[0:17:28.0] Sarah Dubow:
Yeah, so they came up in the wake of the demise of slavery, the 14th amendment is passed. I mean, I guess, it goes without saying, although I’ll say it, you know, it’s the laws being codified.
[0:17:38.1] Michele Goodwin:
Say it, Sarah. Say it.
[0:17:40.2] Sarah Dubow:
The laws were being codified are, you know, written by White men, they’re being ratified in legislatures where women are not voting, where Black women are not voting, where many Black men, at this point in time, were not voting, and so, you know, to pick that moment…
[0:17:54.9] Michele Goodwin:
And just nothing not voting because they can’t vote, right, like not voting because, oh, you’re just so apathetic, and you’re just not exercising your right to vote, right?
[0:18:04.4] Sarah Dubow:
Correct. Correct. I mean, so women cannot vote, and there’s a lot of violence and voter suppression following the 15th amendment that makes it extremely dangerous for Black men to vote, and so those laws are passed, and those laws also do retain though some distinctions between stages in pregnancy, and they impose different penalties depending on the stage of pregnancy, and when you look at the actual implementation of those laws, you actually see that there’s a big gap between how those laws are written and how those laws are interpreted by juries, for example.
I mean, first of all, very few cases are actually ever prosecuted, at that time, but also, when juries decide, they often don’t uphold those laws, and they find that there’s not a crime actually being committed that they want to punish, and at the same time, there’s also the motive behind the laws, which is driven…I mean, there are a couple of reasons for it, and we can sort of flesh them out, but they were led by a doctor named Horatio Storer, was one of the leading _____ [0:19:10.6].
[0:19:10.5] Michele Goodwin:
Absolutely, Horatio Storer and Joseph DeLee, I mean, you know, they write about how urgent it is that White women use their loins and go east, north, south, and west. It kind of reminds me of the contemporary rhetoric that we hear from the kind of self-described White nationalist and White Christian nationalist, who are concerned about replacement and the whole replacement theory, this idea that as soon as Black people are freed from the chains and boughs of slavery that somehow, they’ll just darken the United States and White people will be replaced.
[0:19:47.5] Sarah Dubow:
I mean, that’s a huge anxiety for these people, who are passing the laws, and Alito acknowledges it, and he says, but really, like we don’t know what they really meant. I mean, they were telling us what they really meant.
[0:19:58.9] Michele Goodwin:
They were writing it. Horatio Storer couldn’t have been more…the thing that I find fascinating, Sarah, oh, and I’m just loving this conversation, but the thing that I find fascinating is the misreading, rereading of the explicit things that people wrote, right.
[0:20:11.7] Sarah Dubow:
[0:20:12.7] Michele Goodwin:
This is what they wrote, exactly these things, so one can’t say, well, we don’t know what they really meant. They couldn’t have been more explicit in their sexism, racism, misogyny, and their concerns.
[0:20:25.5] Sarah Dubow:
[0:20:25.6] Michele Goodwin:
And then, their politicking that they did around them.
[0:20:29.3] Sarah Dubow:
Yeah, when you read the legislative histories debating passing these laws, they quote, Storer and DeLee, and all of these people, so I mean, it’s foundational unto the motivation behind it, and as well, you know, also motivated by sort of taking control of reproduction away from midwives, from healers, from women practitioners.
[0:20:47.3] Michele Goodwin:
Yeah, let’s talk about that, too, because as part of this leadup, they’re doing kind of double or triple duty, so you have these kinds of new men of medicine who feel deeply insecure, again, coming from their writing because there are the other men of medicine, the anatomists and the surgeons, and the surgeons are telling them that you’re just doing women’s work, which is actually not surprising because it was women who were doing this work, and then, you know, in their pamphlets and books that they write, they write then about their insecurities and how they deserve greater recognition, and they begin these campaigns against midwives, and part of that campaign is sort of to demonize what they do and how they do it, even though midwives are far more successful than they are actually with keeping women alive during pregnancy and after delivery.
Deborah, you look like you might have wanted to jump in there.
[0:21:44.4] Deborah White:
No, I’m just saying I’m enjoying this, as well, but correct, most women gave birth with the help of a midwife, and this is in rural and even in urban settings, and so you find a lot of the issues regarding abortion and the control of women’s bodies wound up in the history of medicine and the history of professionalization of the MD profession.
[0:22:17.0] Michele Goodwin:
That’s right, of obstetrics and gynecology. I mean, this becomes a tool for monopolization of the field. I mean, it’s an interesting kind of horrific storm that comes together, right, with a sort of anti-slavery movement, the abolitionist movement really beginning to take a foothold, at the same time, the professionalization of obstetrics and gynecology, which has a very White male face even though historically, from Millenia, it’s always been women, right, like you know if we pause and we think about it, there are no White guys with lab coats and stethoscopes.
[0:22:51.1] Deborah White:
But if we also remember that the history of gynecology is really tied up, again, with the right or the absence of Black women’s autonomy, bodily autonomy because so many of the experimentations that were carried on and that led to so many cesarean sections, for example, as well as all kinds of other kinds of surgical repairs of women’s wombs were don’t on African American women.
Marion J. Sims notoriously used enslaved women, who could not protest because their bodies were literally owned by someone else, and they were virtually given to Marion J. Sims so that he could experiment on African American women.
[0:23:56.9] Michele Goodwin:
Well, you know, it’s interesting, too, because as we think about being together today with the National Women’s History Museum and on the landing page of the museum’s website, it speaks to empathy, historical empathy for women and the stories of women, and Deborah, I’m so pleased that you brought Marion Sims into the conversation because, again, it’s a matter of what it is that we see.
Marion Sims wrote in his own autobiography about doing exactly that, about denying these enslaved Black women anesthesia. He wrote about having what he called epiphanies in the middle of the night where he would snatch them from the degraded circumstances in which he kept them, won’t even say housed them, and then would begin cutting into their bodies, and what’s so important about this conversation and the National Women’s History Museum facilitating this and with our Ms. audience with this, too, is that it’s a matter of like what is it that we see.
He was honored with statues, you know, statues in Central Park and other places, you know, lauded as the father of gynecology, and yet, I think, if we read, as I read, inhumanity inflicted upon these women, and so I think it says a lot about who gets to read and interpret history.
So, Sarah, I want to build on this to add in then the layers, so that’s where, you know, the sort of 19th century story, 18th, 1800s, that this criminalization begins in the wake of slavery’s abolition. It doesn’t start with the Pilgrims landing and you know building colonies, you know, Indigenous people are performing abortions and so forth, the Pilgrims aren’t and so forth, but Benjamin Franklin writes about how to perform an abortion, right, so this becomes part of this strategy that’s largely used by these new men of medicine, these new gynecologists and obstetricians, who also want to keep women out because that’s also another fascinating story.
Maybe when we come back for another episode, we could actually talk about what it would have meant if women could’ve been included in obstetrics and gynecology, given all of that kind of history, millenia of history and experience that they had, but that’s for another episode, but Comstock, how do we get into the 20th century story.
[0:26:38.1] Sarah Dubow:
Well, so Comstock is passed in 1873, which is a law criminalizing the sale and mailing of information about contraception and abortion, and I think it’s important, too, to see that these issues are always linked, abortion and contraception, and they’re linked today, as well, which maybe we can talk a little bit about, and so there is both the federal criminalization and then there’s the state level, and so there is sort of this 100 year period from the late 1870s to 1973 of sort of when abortion was a crime, of the criminalization of it, and during that era, you know, people still had abortions, people still needed abortions and got them, and got them less safely, and there was sort of a series of different levels of enforcement, and so there would be periods of time when it would be highly criminalized and enforced, and periods of time when it would not, and you know it was mostly controlled in hospitals through hospital boards, who would often decide whether or not a woman could get an abortion, if there was a medical necessity for her life, and so you would have to sort of leave your fate up to the hands of this board of doctors, who would decide.
[0:27:57.6] Michele Goodwin:
Right. Male doctors, right? So, it’s fascinating to look at the kind of face of what all of this looks like, you know, we go from about 100% of women’s reproductive health care being done by women including about half of that Black women, Indigenous women, and White women to by the turn of the 20th century, they’re almost fully excluded, about 1% of reproductive health care that is done by women in the early 20th century.
So, Mary, we’re sort of leading that conversation then, thank you so much, Deborah, up to that point of Roe v. Wade, and Roe, on one hand, is an incredible new day. It is a 7 to 2 opinion. Five of those seven justices are Republican appointed. Justice Blackman, who writes the opinion in Roe, is put on a court by Richard Nixon. You got Prescott Bush, the father of George H.W. Bush, is the treasurer at Planned Parenthood, so Mary, what happened, like that’s the 1973 story.
For many people, that’s looking like a fairly decent story, you know, we see in the wake of that, there’s been a civil rights movement, a women’s rights movement, and maybe this is a time in which there’s a real transition in our country, but you’ve been writing about, Mary, how we need to be far more critical about what was happening during that time and leading up to Dobbs. Can you paint that picture for us?
[0:29:32.5] Mary Ziegler:
Sure. Yeah. So, I mean, if you read Dobbs, you would think the anti-abortion movement kind of spraying into being upon the release of the Roe v. Wade decision, which is wrong. Sarah and others have written about this.
Convincingly, there was an anti-abortion movement, obviously, in the 19th century with Storer, but the kind of incarnation of what would look more like the contemporary anti-abortion movement in the 1960s, really as soon as states began trying to reform criminal laws on abortion, so there was a kind of rejection of any idea of compromise.
For example, New Hampshire was one of the few states that didn’t have an exception for the life of a pregnant person, and when the state moved to put in that exception in the early 1960s, anti-abortion leaders rejected that, so there was already a kind of compromise refusing, initially, predominately White, predominantly middle-class, predominantly Catholic movement, but I think, you know, that lasted after Roe, as well, right, so this rejection of compromise and the elevation of what we would now hear as fetal personhood, right, the idea that a fetus is a rights holding person under the Constitution, and that, therefore, abortion is unconstitutional period everywhere was what the anti-abortion movement embraced in the immediate aftermath of Roe and really, honestly, ever since, but the movement also got to be more savvy and recognized, you know, one, that most people didn’t want fetal personhood, most people didn’t want an abortion ban, the Supreme Court wasn’t interested in either an abortion ban or fetal personhood, so they began a kind of strategy we now call incrementalism, right, the idea of passing restrictions that would make abortion broadly inaccessible, particularly for people of color and people without a lot of income, but other people, as well.
The Hyde Amendment, which some people listening may have heard of, which found Medicaid reimbursement for abortion was probably the most successful of these initiatives.
They also began passing laws that were designed, in their words, to chip away at Roe. The idea would be that not only would abortion be inaccessible, but the very idea of an abortion right would become kind of incoherent, right, so you’d say, oh yay, there’s an abortion right, but no one could actually have an abortion, and that would erode support in the judiciary as well as…
[0:31:45.3] Michele Goodwin:
_____ [0:31:45.3] would become more illusory than real.
[0:31:48.1] Mary Ziegler:
[0:31:48.0] Michele Goodwin:
You know, one point that…because we’ve got lots to talk about, and really having this conversation just makes me think that we need to have episode 1, 2, 3, 4, and 5 of this.
You know, Mary, one of the things that I think is important and level set of that, is that there’s a kind of rhetoric that this has always been a Republican position because most of the opposition that one sees right now is Republican, but that’s actually not true, right.
[0:32:16.7] Mary Ziegler:
[0:32:17.1] Michele Goodwin:
So, it wasn’t always a Republican position, and can you speak just briefly to that because I think that it matters in talking about history and it matters in terms of talking about clarity, and I will also say I think that it matters for those who are wondering if this should be, you know, a way in which they think about things because they’ve heard this is how things always have been.
[0:32:42.8] Mary Ziegler:
Yeah. Yeah. So, I mean, abortion was definitely not a party partisan issue prior to really in a kind of coherent, consistent way until the early ‘80s, right, so if you had asked sort of a list of very prominent supporters of abortion rights in the late ‘60s or early ‘70s, you would’ve come up with Nelson Rockefeller, who was, of course, Gerald Ford’s vice president and the governor of New York. He was a Republican. If you had asked for a very prominent list of prolife or anti-abortion politicians, you would’ve come up with Thomas Eagleton, who was a prominent senator and the running mate of George McGovern in 1972, so there was no real partisan alignment that was coherent, and even after Roe, that didn’t happen immediately.
Both, I think, Jimmy Carter and Gerald Ford sort of ran away from the abortion issue rather than tort it. Ford staked out a position on abortion that really made nobody happy, like the prochoice movement or the anti-abortion movement, the same with Carter, and so it really wasn’t until the 1980s when there was a kind of perfect storm of things that helped to forge abortion as a partisan issue.
I think there was a partisan opportunity realized by Ronald Reagan and some other staffers, the idea of being in particular that socially conservative Catholics and White Evangelicals, who had not really voted consistently for one way or another, one party or another rather, were kind of gettable.
There was an effort at the time, a parallel effort to organize conservative White Evangelicals in the Sun Belt in particular, so across the south and southwest _____ [0:34:16.0].
[0:34:15.4] Michele Goodwin:
Kind of like Jesse Helms’ territory.
[0:34:17.9] Mary Ziegler:
Yeah, yeah, and there was also, you know, because people were actually moving to the Sun Belt, there was kind of a block that would be regionally important, right, so this was compelling not only to Reagan but to people in state legislatures and so on, who could imagine like a regional power block.
It’s important to remember that this was not just about abortion, right, abortion was this sort of gender and race issue you could do something about, right, so people in this block that people were organizing were upset about no-fault divorce, they were upset about the rise of the early gay and lesbian rights movement, they were upset about the women’s movement, and the idea of amending the Constitution to prohibit sex discrimination. They were upset about desegregation, but you know, abortion, it was easier for Reagan to make the case.
Look, if you elect Republicans either, one, we’re going to amend the Constitution to ban abortion, and two, in the meantime, if we can’t do that, we’re going to give you a different _____ [0:35:10.1].
[0:35:10.2] Michele Goodwin:
Well, you know, Mary, I’m so happy that you’ve opened the door for that, and I’m so enthused by this conversation because, Deborah, it makes me think about the sort of complexity, the kind of race complexity that was being done by Reagan, who goes to Mississippi, of all places, right.
I mean, you think a governor from California, why in the world are you going to Philadelphia, Mississippi to help launch your campaign, right, you might think, well, you know, get to the east coast, you might think do Texas, right, but it strikes me that Philadelphia, Mississippi is most known for the tragic, brutal killings, right.
[0:35:50.0] Mary Ziegler:
[0:35:51.1] Michele Goodwin:
You know, and Goodwin, Chaney, and Schwerner, too, right, like these…
[0:35:54.2] Mary Ziegler:
[0:35:55.6] Michele Goodwin:
These civil rights, these young people, and from that stage to then talk about the welfare queen.
So, Mary, as you were talking about, right, that there’s this kind of coalescing around ideas and race being central. Well, part of what folks don’t think about with Reagan was the sort of welfare queen mythology also baked into that.
[0:36:16.4] Mary Ziegler:
[0:36:16.3] Michele Goodwin:
Deborah, could you just share just a little bit about what that meant in terms of race and sex, you know, this sort of labeling of Black women as bad mothers and also draining our economy?
[0:36:28.9] Deborah White:
Well, basically, African American women then become associated with not only are they bad mothers, but they are taking tax dollars away from hard working White, working-class, middle-class people, and so Black women then are set up as the boogie man, and if you do something about their pregnancy rates, you know, because we’re putting so much money into the welfare of these children, who are being reproduced just uncontrollably.
Here’s what I see as the real issue or one of the real issues, and particularly, if we turn to the feminist movement that should have somehow been able to deal with this, at least as far as they were organized, African American women have been concerned with two things, bodily autonomy, the control over my body, and sexual integrity, and as far as Black women are concerned, having control over one’s body and reproductive rights not only meant the right to an abortion but the right to have children because throughout the 1920s, I know we’re rushing through history here, and we have to because we…
[0:38:06.8] Michele Goodwin:
We have to because, otherwise, we’d keep people, you know, for a couple of days.
[0:38:11.3] Michele Goodwin:
I’d be happy to.
[0:38:13.0] Deborah White:
But when you think about the history of sterilization, when you think about Norplant, and you think about the whole history, and unfortunately, of the birth control movement. Originally, it was concerned with eugenics, and the right kind of babies to have, the best kind of babies to have, and in that case, throughout the 1920s, and ‘30s, and ‘40s, so often, it was Black women who were being sterilized against their will. They would go into a clinic, and even if a Black woman, even through the 1970s and 1960s, sometimes, if they wanted an abortion, they’d not only just get an abortion, but they’d have their tubes tied.
[0:38:56.7] Michele Goodwin:
[0:38:57.0] Deborah White:
Unbeknownst to them. Black women who were brought in on some criminal charge, and okay, we’ll give you time off, but you can’t have anymore babies.
Black women have always been concerned with can I control my body, and if I want to have an abortion, I want to have an abortion, if I want to have children, I want to have children free of poverty. I want to be able to have the children that I can afford to have, and unfortunately, unfortunately, throughout the late 1960s and 1970s, the feminist movement defined abortion only in…or mostly, let’s put it this way, mostly in terms of, you know, of woman’s freedom, in women’s right in which it should’ve been, but they left out so many Black and Brown women, who really wanted to have children, who had not been able to have children, who had had their tubes tied, who had been declared feeble minded, and therefore, were not allowed to reproduce.
[0:40:22.6] Michele Goodwin:
And so, Sarah, I see that you want to jump in there, and I think that that’s really important because, you know, histories of sterilization, coercive forced sterilization imposed against Indigenous women, women in Puerto Rico, and more, and then, Mary, I’m going to come back to you because the story hasn’t been fully told in terms of what that resistance looked like post Roe v. Wade and the series of cases that upheld the Hyde Amendment and Helms, too, but Sarah, you wanted to interject there.
[0:40:55.1] Sarah Dubow:
Yeah, I mean, I really wanted to just build on what Deborah was saying, which, I mean, there’s sort of been this artifact of history and that we’ve been defending Roe for 50 years, and Roe matters, but it was never enough.
[0:41:10.6] Michele Goodwin:
It is not a north star.
[0:41:12.2] Sarah Dubow:
There were alternative arguments and visions being articulated even at the time of Roe, even in the courts, that did not for a whole variety of reasons, we can talk about, become the cases that the Supreme Court heard in ’73, and so there’s this sort of paradox that we’ve lost this history of arguments for reproductive justice, reproductive freedom that includes, you know, the whole array of choices about how to control your body and have a family, and so that history has kind of been lost, as well, I think.
[0:41:43.3] Michele Goodwin:
[0:41:43.9] Sarah Dubow:
I mean, that’s a mainstream narrative about it, and so Roe was never enough, but the loss of it also is something.
[0:41:51.7] Michele Goodwin:
That’s a terrific point that you raise because Ruth Bader Ginsburg, as an attorney, had hoped that the case that would reach the Supreme Court was the case of Captain Cathy Struck, who was being forced by the military to have an abortion if she wanted to remain as a captain in the military, and she fought the military’s designation that she should/must have an abortion if she were to stay including at the Ninth Circuit, and it was this case that Ruth Bader Ginsburg had hoped that the Supreme Court would actually have taken up on the question of sex equality, reproductive equality, freedom, et cetera, because as many people don’t know, to your point, Sarah, is that abortions were taking place in the US military before Roe v. Wade. People were being forced. Women were being forced to have them, if they wanted to be able to stay in the military.
There’s so many of those stories, but Mary, I’m going to turn back to you because in your work, you’ve also written about how the anti-abortion movement, which also had some pretty violent aspects to it, the least of which were individuals chaining themselves to clinics that performed abortions, but between 1973 and just a few years ago, there were nearly 50 bombings of abortion clinics in the United States, arsons, doctors and nurses who have been gunned down, and so you write about that as being one aspect of what we’ve seen in the anti-abortion movement but the shift to a political discourse, one that was a more sophisticated kind of investment in the movement to get further. Can you unpack that a little bit?
[0:43:49.5] Mary Ziegler:
Yeah, I think, over time…I mean, obviously, the anti-abortion movement has lots of different moving parts, and we still see that now. There still is lots of law breaking, but there’s also, I think, you know, if you’re looking at how Dobbs came about, it’s safe to assume that that was mostly not due to the murder of abortion doctors, that was mostly attributable to some of them were strategically sophisticated parts of the movement, and I think what was crucial there was in the ‘90s, leaders of the movement began realizing that this strategy had laid to kind of chip away at abortion rights was not enough in part because Supreme Court justices and Republican politicians alike were really anxious about the political fallout they expected to see if Roe was overturned, and that’s in part because they had seen the polling, we’ve all seen then and since, suggesting that most Americans did not want Roe to be overturned and did not want abortion bans, which is what _____ [0:43:49.1] in fact was arguing for.
So, instead of just investing and changing dialogue around abortion movement, began investing and changing how institutions work, so the Supreme Court was already part of that story, that the movement had tried to get Republicans elected, to get folks the Republicans wanted on the Court, but they then realized that wasn’t enough, you needed to get justices who were not only conservative but essentially indifferent to backlash, right, indifferent to the kind of fallout you would see in the aftermath of the demise of abortion rights.
They saw Clarence Thomas as this sort of paradigm of this, right, not because of Thomas’ race but because of the accusations raised by Anita Hill and the response of Thomas to them, which is essentially defiance, so they took this as a proxy. If Clarence Thomas didn’t care about the kind of scrutiny he came under, after being accused of sexual harassment, the theory was he wouldn’t care about the kind of scrutiny he would face when Roe was overturned, too, right, so that became the new blueprint.
At the same time, the movement began looking for ways to exercise more control over the Republican Party. That had not really been working very well through the ‘90s. One of the ways the movement tried to do that was by influencing money in politics, right, on the theory that if the anti-abortion movement spent more, it could purchase more influence in the GOP, could help more Republicans get elected, and could kind of endure the movement to the GOP at a time when Republicans thought it may be bad politics to oppose abortion, so you then see a connection not only between the Republican Party and the anti-abortion movement but between the anti-abortion movement and big money in politics, right, so the same people are working as the general counsel of the National Right to Life Committee, which is a large national anti-abortion group and litigating Citizens United or presiding over the creation of super PACs, so all of that is happening in a way that kind of leads us to a moment where Dobbs is possible only because the politics of the Republican Party have changed so much since the ‘80s, really, even, I would say since 2010…
[0:46:48.2] Michele Goodwin:
[0:46:49.3] Mary Ziegler:
And the Supreme Court has, as well.
[0:46:50.5] Michele Goodwin:
Right. Well, it’s interesting because that gets us back in many ways to examining how and why, so what happens in 2010, who’s in office in 2010, what’s the kind of pushback that’s taking place. We know it’s Barack Obama that’s in office.
There are reporters who today are saying that, at the time, they thought that this was just a matter of political pushback, but now they understand the threads of racism that existed while Barack Obama was in office, and that the framing of the United States as being post racial certainly has not panned out, especially in the wake of the massacre in Charlottesville with the death of Heather Heyer and what we’ve seen in terms of a truly weaponized movement, a white supremacist movement in the United States.
Well, this is a time in which we have some audience questions to get to, something that we usually don’t have with our On the Issues podcast, but is the benefit of being able to collaborate with the National Women’s History Museum and to celebrate how long they’ve been doing incredible work, and so I am going to start off with one of the questions that’s in the queue, and then I’m going to invite Emma to join us, as we take a couple of additional questions before we wrap up because time has gone by really quickly.
So, there is the concern that’s been raised that’s in the Q&A about the Federalist Society and the way in which it’s been able to galvanize itself and to influence the American political space, the judicial space. Mary, I will start with you first in terms of addressing that and then open it to other guests.
[0:48:53.7] Mary Ziegler:
Sure. Yeah. I think the Federal Society has a really interesting relationship with the anti-abortion movement. If you go to the ‘80s, it was not an entirely happy relationship, right, there were people in the Federal Society, who were sort of _____ [0:49:06.2], so the Federal Society in a nutshell, right, was trying to create a parallel Legal Elite because the Legal Elite for decades, broadly speaking, was progressive, and there was an intuition that the Federal Society leaders had that as long as that was true, you would continue to get fairly moderate decisions from the Supreme Court, and Roe is a perfect example of that.
You had a bunch of Republican justices recognizing a right to abortion, so their theory was that you needed to create a parallel elite that could be a source of nominees to the federal bench, a parallel kind of legal network for professional advancement in law schools and otherwise.
Initially, being opposed to abortion didn’t really fit in very well with that agenda because it was seen to be kind of radical, bad politics, not very kind of Elite sounding, so it was really when Robert Bork was…Ronald Reagan tried to put Bork on his board. Bork was an outspoken opponent of Roe, and when he wasn’t put on the court, his martyrdom from the standpoint of people on the right became a way for people with very different views on abortion on the political right to support one another or at least forget their differences, temporarily, and they did so by rallying around this idea that was Roe was an activist decision, it was an anti-Democratic decision, and that allowed them to avoid the fact that they maybe disagreed on the merits of the abortion question itself.
Much as the anti-abortion movement gained influence in the GOP, in recent decades, the Federalist Society has as well, so initially, the Federalist Society’s claim to fame was really proximity to power, right, that if you were a senior member of the Federalist Society, you would get to be in the Reagan White House. That was sort of the reason people joined the Federalist Society.
Over time, the Federalist Society began to call the shots when it came to judicial confirmation, so some of us have probably heard a list of nominees that were given to the Trump administration and sort of viewed as the exclusive list available for these nominations. There were various points starting in the 2000s significantly when George W. Bush nominated Harriet Miers to the court. The Federalist Society essentially said, no, you know, like you don’t get to decide this, we do, and this is not good enough, and of course, the person who replaced Miers was Samuel Alito, who’s the author of Dobbs, who was exactly what the Federalist Society wanted, so that dynamic has changed.
It’s still a little complicated, like if you dig down, the relationship between the anti-abortion movement and the Federalist Society is now closer, but I think some of the differences between the two are now coming back to the surface because…
[0:51:32.6] Michele Goodwin:
[0:51:32.9] Mary Ziegler:
There are people in anti-abortion movement who don’t listen to the Federalist Society anymore.
[0:51:35.6] Michele Goodwin:
That’s right, yeah. No, and of course, when one latches onto a kind of rhetoric that is so strong and forceful without any kind of nuance, then that actually begs the question whether individuals who consider themselves to be intellectuals or intellectual Elites can stand by, I mean, can you stand by a position where a 10-year-old must be forced to become a mother because that’s the agenda that’s being put on the table, can you stand by an agenda where a woman needs to nearly die before her doctors can intervene in a case of incomplete miscarriage just because the doctors have to be concerned about being prosecuted, right, I mean, so at what point does one sort of break in and one’s integrity step to the fore.
Question from an audience member about what’s the best message for the midterms around these topics? How can racial justice be linked to abortion rights in a clear message? Very interesting question coming off of Kansas, and Sarah, I wonder if you might want to start or what are your reflections given that voters in Kansas, very recently, rejected the move to strip from the Constitution the meaning that abortion is something that is a fundamental right, for the state of Kansas?
[0:53:17.3] Sarah Dubow:
Yeah, I mean, I was surprised, you know, a little bit surprised by that. I think that it’s true maybe I shouldn’t have been surprised because the polling shows again and again that, at the end of the day, people, when you’re confronted with the realities that you just described, Michele, do support this right, and so, I guess, one thing I would say is that it’s really also hard to delink this anti-abortion movement from the movement against voting and voter suppression, and so, you know, Shelby versus Holder is also a case that’s decided sort of in the middle of this onslaught of abortion restrictions being passed at the state level, and so, I mean, this isn’t a prediction or a strategy suggestion, but I think just to hold in our minds the fact that voting is foundational to reproductive rights and that reproductive rights are sort of foundational to democracy and just making that link again and again, and the ways in which those intersect with civil rights and racial equality are also really, again, hard to disentangle, and I think one thing that comes out of this moment is clarity about some of the motives and beliefs, and to your point, Michele, now it’s time not to put up or shut up but to sort of take a stand on it, and people are going to have to own the consequences of this decision. I don’t have a political strategy.
[0:54:46.0] Michele Goodwin:
[0:54:46.9] Sarah Dubow:
I hope that, and I’m not a silver lining person, but I…
[0:54:52.8] Michele Goodwin:
I’m going to be asking about a silver lining.
[0:54:54.3] Sarah Dubow:
I’m not a silver lining person, but I think that there is room now that the specifics of Roe are not the only thing that needs to be defended, to have a much more capacious conversation about liberty and equality, and what we want that to look like.
[0:55:13.4] Michele Goodwin:
Well, it’s important that you mention that.
[0:55:14.3] Deborah White:
Could I chime in on that?
[0:55:16.8] Michele Goodwin:
Sure, Deborah. Yes.
[0:55:17.6] Deborah White:
Just a minute. I’ve always said, you know, I’m not a politician, and I really can’t deal or don’t deal so much with current day issues or else I’d be a political scientist, but here it is, healthcare and abortion rights, I mean, are connected, so abortion rights are healthcare rights, and we’re going to say this, if we’re going to save the life of a mother, we’re really not just dealing with whether or not she should or could or would have a right to abortion, she has the right to health care, and if I’m a Democrat, I’m going to go back to Obamacare, and I’m going to talk about how health care was extended under the Obama administration, and I’m going to relate women’s rights to health care and the right to adequate health care, and the right, you know, not to necessarily, if I have to restrict my rights because I go to a public hospital, I’m going to insist that I have the same kind of rights that any woman or any man would have, and so equality of health care is related to racial rights, and therefore, since equality in health care are also women’s rights, that means that women’s rights and racial rights and health care are all bound together.
[0:56:52.9] Mary Ziegler:
One of the really interesting things to emerge, of course, is that, you know, Kansas is a pretty conservative…so, there are two things I think are interesting about messaging that emerged in Kansas.
One is that there’s not withstanding the story Michele and I were telling about partisanship in abortion, it’s important to desegregate partisanship in abortion, so there are people who are going to identify as Independents or Republicans, who don’t want abortion to be illegal.
The second, so one thing I think going forward that means is that it may be important for people who support abortion rights to desegregate partisan preferences from abortion by putting abortion more directly on the ballot, right, having ballot initiatives rather than just saying, do you want a Democrat or a Republican because in some red states, that answer will be a Republican even for people who don’t want an abortion ban.
The second thing I think is that in a post Roe, post Dobbs world, a lot of messaging is going to be local, so what would work in Florida, where I lived until recently, is not what will work in California, where I live now, and so I would also urge people to be sensitive to those differences because I’m reasonably sure that if you imported messaging from say like Massachusetts, where I was working this spring, or California to Kansas, it wouldn’t have worked because people, while they supported reproductive rights and justices thought about those things in very different ways, so I think, you know, that all politics is local, that that’s more true now, I think, than ever.
[0:58:09.5] Michele Goodwin:
Guests and listeners, that’s it for today’s very special out-of-studio episode of On the Issues with Michele Goodwin.
I want to thank our guests and also our special collaborator, the National Women’s History Museum for helping us bring this very important discussion to life, and to you, 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 we will be reporting, rebelling, and you know telling it just like it is, as usual, and it will be an episode you will not want to miss, and for more information about what we discussed today, head to msmagazine.com and be sure to subscribe.
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