Listen, Rate, Review and subscribe on:
In this Episode:
The fight to enshrine gender equality in the U.S. Constitution is more urgent than ever. The Equal Rights Amendment could prove pivotal in securing not just the promise of equal protections in the eyes of the law, but by providing crucial protections when it comes to reproductive rights in the wake of Roe’s overturn.
Nobody knows this better than Susan Frietsche—who recently secured an incredible victory for women in the state of Pennsylvania in terms of then power of the Equal Rights Amendment as it relates to reproductive freedom. In this episode, we delve into how Susan’s work sets an important precedent for protecting women’s rights—and how it relates to the fight to secure the federal ERA in the Constitution.
This episode is a part of the latest installment of Ms. Magazine’s Women and Democracy platform, “The ERA Is Essential to Democracy.”
Background reading:
Transcript:
00:00:13 Michele Goodwin:
Welcome to 15 Minutes of Feminism, part of our On the Issues with Michele Goodwin at Ms. Magazine platform. As you know, we report, rebel, and we tell it just like it is. We count the minutes in our own feminist terms on 15 Minutes of Feminism, but we dive right in and that’s what I’m doing right now with Susan Frietsche. She is the co-executive director of the women’s law project and she’s been in this role since 2002 in the western Pennsylvania office, which she founded, and she does direct representation for the 17 free standing abortion facilities in Pennsylvania.
What’s more she has secured an incredible victory for women in the state of Pennsylvania that relates to equality being embedded in the state’s constitution and what does that mean in terms of reproductive freedom. Well, we dive right in and we talk about it in this episode. So, sit back and take a listen. It’s such a pleasure to be with you Sue. Thank you so very much for joining us at Ms. Magazine and our Ms. Studio’s 15 Minutes of Feminism podcast. Sue, you’ve done exceptional work over the years, over many decades advancing women’s interests within law and society.
It’s really been quite foundational and important to democracy, and you have done the type of work that’s been an inspiration not only from where you sit but really it’s been an inspiration for the rest of the country. I want to turn to this work that you’ve been doing in terms of expanding how we understand women’s constitutional rights, their equality under law. Can you tell us a bit about the work that you’ve been doing in Pennsylvania?
00:02:09 Susan Frietsche:
Sure. Thank you so much for having me on the show. I’m a long-time admirer. So, Pennsylvania as you might know, which is where we are based at the Women’s Law Project is, is not an easy state for abortion rights supporters or abortion providers and I in the Women’s Law Project have long represented the clinics in Pennsylvania who are laboring under this horrific load of criminal laws and just a maze of regulations that they have to abide by in order to be able to provide abortion care. So, we are a far cry from being what they call an oasis state and the very worst of the restrictions that are in play in Pennsylvania is a ban on Medicaid coverage for abortion.
That prevents about one in four we think low-income people from having access to abortion all together. So, we have a state ban as well as the federal Hyde Amendment and we challenged it years ago in the 1980s and in 1985 we got a ruling that kind of closed the door on Medicaid funding challenges under our state constitution. So, we know our federal constitution doesn’t require equitable funding. We thought our state constitution might though because we have a state Equal Rights Amendment and a lot of states have this and some states like notably New Mexico, Connecticut, have used their state Equal Rights Amendment to get abortion rights vindicated, including Medicaid coverage.
The way that works I think is clear that denying access to abortion is extremely damaging to women’s equality interests. So, we know from the Turnaway study that denied access to a wanted abortion makes women sicker, sadder, poorer, less likely to be employed. Their existing children are in much worse shape. So, you know, for so many reasons access to abortion advances women’s equality in the workplace, in education, and in terms of just being able to guide and you know run your own life in accordance with your own vision for your future and your destiny.
So, this past oh I guess about five years ago we decided to try again even though our state supreme court back in 1985 had already said we do not see any equality argument here at all. What does abortion have to do with women’s equality, nothing.
00:05:24 Michele Goodwin:
Too just on that point because I want to just take one moment because you’re going to tell us what you’ve done now but for our listening audience we were wondering about what was going on in the 1980s where there could be rulings that would say that Medicaid those funds could not be used for the termination of a pregnancy. You’re referring to the Hyde Amendment basically. Can you tell our listeners a little bit about that and then we can go on with what it is you’ve just recently been able to secure in terms of a victory.
00:06:06 Susan Frietsche:
Sure. So, when Roe v Wade came out in 1973, opponents of abortion rights adopted at first a strategy of just trying to amend the US Constitution, then trying to pass human life statutes and when none of those strategies worked they turned towards incrementalism. So, they turned towards a strategy of trying to chip away at abortion rights by targeting the people who had the least political power and who has very political power in our world, it’s people without resources, low income people.
So, they went after Medicaid coverage of abortion and they passed something called the Hyde Amendment which is an appropriations bill rider that passes every year, and it denies federal Medicaid funding for abortion.
00:07:07 Michele Goodwin:
Even though funding can be used if you go to labor delivery and childbirth. So, it’s really the state making the choice about what the outcome would be, right? So, funding if you’re going to deliver and no funding if you choose not to deliver.
00:07:31 Susan Frietsche:
It was so clearly the government making the judgment for the individual that this is where we want you to be, and when you think about it, really doesn’t it arise out of and perpetuate a whole set of gender stereotypes about ____00:07:50.
00:07:50 Michele Goodwin:
Absolutely. Well, doesn’t it, right? It conditions government funds on an outcome that members of the legislature would want for a woman. You just can’t make that up Sue in the backdrop of where we are in the country now, where we were at that time, historical foundations of strapping women to perceptions and ideas not that women had for themselves but for those that male legislators would have for them. And I suppose it’s also worth noting too that we’re talking about these matters coming out of time where women did not have full representation in Congress, still don’t.
There still is imparity but we’re talking about coming out of times in which both state and federal legislators might have been 90 percent male, 95 percent male. We still have in this country states where the representation of men is overwhelming, over 75 percent, 80 percent, 85 percent, and making judgments about women’s lives without the full representation of women in those chambers.
00:08:58 Susan Frietsche:
Absolutely. The suppression of women’s voices and women’s experiences definitely was reflected in the policy that was adopted.
00:09:12 Michele Goodwin:
You were mentioning then in terms of the state level…so, that was federal but then there was the question about states then piggybacking off of this.
00:09:21 Susan Frietsche:
Well, right. So, you know, the federal Constitution is not the only Constitution. So, we have state constitutions as well and state constitutions are really, they have very different provisions. Some of them have provisions that are much more protective of individual rights than our federal Constitution and Pennsylvania is one of those states. We have an explicit protection in our constitution for equality of rights under the law on the basis of sex. We have an ERA.
And so, that was the path that back in the 1980s we thought we could take to win Medicaid coverage of abortion back again as a state constitutional matter instead of a federal one. We lost so spectacularly Michele. We lost in a unanimous ruling in 1985 in a case called Fisher. That was almost abusive in how dismissive it was of our claim that abortion rights are important for women’s equality, but a lot changed since 1985.
00:10:41 Michele Goodwin:
Well, yes, so much. To just pause on that Sue, as you mentioned a decision that’s almost abusive, I think it’s hard for people to understand a time in which we have courts that would say women don’t have a right to serve on juries, that women don’t have a right to vote even after the ratification of the 14 Amendment, that there would be the Supreme Court of the United States that would say in a case like Bradwell v Illinois where a woman petitioned the United States Supreme Court because she wanted to become a lawyer as her husband was and the state of Illinois barred women from becoming lawyers and the US Supreme Court saying that women were best suited, in fact only suited, for the care of their husband and children, which was not the case that she brought before the court.
She brought a case before the court about her equality under law, that she should be able to be a lawyer like her husband and the Supreme Court instead of dealing with that they sort of sanctioned her to the care of her husband and children which was not the question she asked the court to address for her. So, when you mentioned this, this almost abusive, in reality it was part of rather than something that was an antithesis of American law and jurisprudence it was like a build on because it wasn’t like Sue there had been some day where there was recognition, full recognition, full truth and reconciliation for the instantiation and law of so many abusive laws and laws that allowed the abuse of women, laws that allowed marital rape and no vindication for it, laws that allowed men to rape their daughters under this idea of parental immunity and it would somehow disrupt family harmony if the daughters were able to escape and then sue their fathers for recovery so they could rebuild their lives.
You have courts all across the United States saying that would be disruptive to the father’s harmony in his household. So, when you mention almost abusive, the reality Sue is that there’s been so much of it baked into American law and that is why it’s so remarkable what it is that you’ve been able to achieve.
00:13:02 Susan Frietsche:
Yeah. So, we revisited it. Five years ago we filed basically the same litigation that we had brought in 1985 but it was different because in the intervening years the knowledge that abortion rights is central to women’s equality had come into its own into the mainstream propelled by all these wonderful feminist law professors, you and many others, and there was case law out there at the federal level and also arising out of other state Supreme Courts making that point.
So, we also had the Turnaway study that proved empirically the kind of harm that people face when they’re denied a wanted abortion. And so, with those changes we went back into a state Supreme Court here that really looks very different than the one from 1985 and just at the end of January we got a monumental landmark decision in this case, Alleghany Reproductive Health Center versus Department of Human Services, that says restrictions on abortion are a form of sex discrimination and they are presumptively unconstitutional unless the government can meet a very, very high bar, a very hard test.
00:14:42 Michele Goodwin:
What an incredible victory, and you’re right in terms of the arc that has bent over time, right. So, we have the history that we’ve both talked about with the Hyde Amendment and so much more and even more recently in the state of Pennsylvania but this understanding because of the empirical record that has been established, and honestly even with the United States Supreme Court despite the Dobbs decision in 2022 in Whole Women’s Health v Hellerstedt in 2016 the Supreme Court in a five to three decision recognized and acknowledged that a woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion, that abortions are incredibly safe.
The World Health Organization compares their safety to a penicillin shot. And so, much of that rhetoric that has been used is inaccurate rhetoric, has been stripped down by so many studies including the Turnaway study, empirical evidence that has mounted over time and also what we knew dating back to Roe v Wade was a seven to two opinion where Justice Blackman acknowledged, as did that majority, that there’s incredible suffering that can take place and take shape when an individual is denied the ability to terminate a pregnancy and building on that your work and what we saw coming out of this decision, we know that the United States is the deadliest place in all of the industrialized world to be pregnant, ranking somewhere around 55 in the world.
Maternal mortality and maternal morbidity are so incredibly high, and it is not a winning proposition towards promoting health to deny individuals the ability to be able to terminate a pregnancy, which for far too many people is really a life or death matter in the United States.
00:16:45 Susan Frietsche:
Yeah. Absolutely. Absolutely. Yeah. So, the changed circumstances of somewhat better law, better facts, but I think really one of the things that played into our success at the Pennsylvania Supreme Court was the Dobbs ruling. The timing of it was remarkable. It happened only a few months before oral argument in our case and I think it really brought home the necessity of interpreting our state constitution to be more protective than the federal Constitution, which truly had been interpreted to abandon the interests of women and the safety of women.
00:17:37 Michele Goodwin:
That’s such a powerful reflection, and in many ways, Dobbs opens that door but opens it in a way that’s hard to take in good faith where Justice Alito and the majority say that well if there are women and people with uteruses that are dissatisfied with this then you can vote on it. On one hand, we see with the ballot initiatives they’ve all been successful in terms of protecting the interests of being able to terminate a pregnancy or protecting the interest that that shouldn’t be banned in a state’s constitution but we also know that voting rights are something that have become very fragile, also due to the Supreme Court, such that voter suppression is really high.
All of that makes your work and what you’ve done incredibly important and this victory before the Supreme Court is really, really remarkable. One of the things that we ask our listeners all the time, but we ask the people who join us on the podcast, we ask about a silver lining because so much of what it is that we discuss can be so depressing. It seems to me that where you are, what you’ve been able to accomplish is a silver lining itself, but I do want to ask you what is that spark of hope that you see in relation to this work that you’ve been doing in relation to this decision.
00:19:14 Susan Frietsche:
Well, you know, I was at a conference recently and someone came up to me and said are your staff so depressed and I went no. They’re not. They’re on fire. We have got now such a powerful new tool to use at our state and I think other states can follow the same path. Nevada has got a pending ERA challenge to their Medicaid ban on abortion and it can be used far beyond just that. The ramifications might even extend to race discrimination cases. We’re really excited about taking this over 300 pages of ruling and seeing where we can apply it and how we can use our state constitution to expand individual rights.
00:20:09 Michele Goodwin:
It’s remarkable. It’s an honor and a privilege to be with you. You are absolutely right. You all are on fire and you’re doing such amazing work, and it is an example of what can take shape across the country and looking forward to even more coming out of Pennsylvania with you. Thank you so much Sue for joining me today. It’s been my pleasure.
00:20:33 Susan Frietsche:
Thanks so much.
00:20:36 Michele Goodwin:
Guests and listeners, that’s it for today’s episode of On the Issues with Michele Goodwin at Ms. Magazine. I want to thank each of you for tuning in for the full story and engaging with us. 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. For more information about what we discussed today, head to MsMagazine.com and be sure to subscribe, and if you believe as we do that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America and being unbought and unbossed and reclaiming our time are important then be sure to rate, review, and subscribe to On the Issues with Michele Goodwin at Ms. Magazine, an Apple podcast, Spotify, iHeart Radio, Google podcast, Stitcher, wherever it is that you receive your podcasts.
We are ad free and reader supported. Help us reach new listeners by bringing this hard-hitting content in which you’ve come to expect and rely upon by 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, please do so. Email us at OntheIssues@msmagazine.com. 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 dream production. Michele Goodwin and Kathy Spillar are our executive producers. Our producers for this episode are Roxy Szal, Oliver Haug, and also Allison Whelan. Our social media content producer is Sophia Panigrahi. The creative vision behind our work includes art and design by Brandi Phipps, editing by Natalie Hadland and music by Chris J. Lee.