In this Episode:
In June Medical v. Russo, the Supreme Court struck down a challenge to abortion rights in Louisiana, a state in which reproductive health care access is already fraught. The law would have required all doctors performing abortions to obtain hospital admitting privileges. Even though this case has put such challenges to rest, lawmakers in Louisiana have effectively undercut women’s access to reproductive healthcare, causing clinic closures and more. As our guests make clear, Roe is not enough.
However, it’s not just abortion rights or pregnancy at stake, with regard to women’s health. Reproductive justice matters, and bringing that lens into these conversations is urgent. The rise in criminalization of pregnant women for failing to comport to the state’s standards for behavior during pregnancy is alarming. Women have been threatened with arrest for refusing C-sections, falling down steps and attempting suicide during pregnancy. Where does this end? What should we be concerned about? What’s the future of Americans being able to exercise control their own reproductive futures, given the aggressive attacks at the state and federal levels? We close considering how organizations, doctors, lawyers and activists are fighting back.
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Michele Goodwin 00:04
Welcome to “On the Issues with Michele Goodwin” at Ms. magazine, a show where we report, rebel and tell it like it is. On this show we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show, history matters. We examine the past as we pivot to the future.
On today’s show, we focus on June Medical and the future of abortion rights. This was a case where the Supreme Court took up a challenge to abortion rights in Louisiana, where reproductive healthcare access is already fraught. The Supreme Court struck down the Louisiana law, which would have required all doctors performing abortions to obtain hospital admitting privileges. Even though this case has put such challenges to rest, lawmakers in Louisiana have effectively undercut women’s access to reproductive health care, causing clinic closures and more.
Meanwhile, they have also failed to promote maternal health for people who wish to maintain their pregnancies. Louisiana, along with Texas, are among the deadliest places in the developed world for a woman to give birth. For African American women, it’s far worse, as they are nearly four times more likely to die during pregnancy. In the U.S., reproductive freedom and privacy remain important issues.
But it’s not just abortion rights or pregnancy that happen to be at stake with regard to women’s health. The rise in criminalization of pregnant women for falling down steps and failing to comport to the state standards for behavior during pregnancy is alarming. Women have been threatened with arrest for refusing C- Sections [Cesarean Section, a surgical means of giving birth by cutting through the fetus-bearer’s abdomen], and even for attempting suicide during pregnancy. Where does this end? What should we be concerned about? And also, what’s the silver lining?
Helping us to sort out these questions and how we should think about these issues and more are very special guests. They include Yamani Hernandez; she is the executive director of the National Network of Abortion Funds, a network of organizations across the United States and three other countries that are funding abortion and building power to fight for cultural and political change.
I’m also joined by Nancy Northup; she is the president and CEO of the Center for Reproductive Rights since 2013.
Kathaleen Pittman is also with us today; she’s the director of the Hope Medical Group for Women, the clinic central to the battle in June Medical. She remembers when there were 11 abortion clinics in Louisiana—now there are only three, hers among them.
And also on our show today is Mary Ziegler; she is the Stearns Weaver Miller Professor at Florida State University College of Law. She is also the author of “Abortion and the Law in America: Roe v. Wade to the Present.” Welcome to our Ms. magazine show.
Now, before we begin, I want to take a moment to acknowledge the life and legacy of Congressman John Lewis. His recent death has shaken the nation, as many found him to be the vaulted soul of the nation, representing what was just inspirational and aspirational. He will be sorely missed as a political leader and humanitarian, who’s advocacy on racial equality was unmatched. He was forceful on reproductive justice, LGBTQ equality and more.
I also want to remind our listeners about the passing of Reverend Cordy Tindell Vivian [C.T. Vivian], whose unwavering commitment to civil rights and equality was just as forceful as any woman or man; he too was a Freedom Rider who rode through Southern states challenging laws that forbade Whites and Blacks from sitting together or using common drinking fountains or restrooms. May their legacies be honored by full restoration of the Voting Rights Act.
Nancy, I want to start with you. In 1973, the Supreme Court struck down laws that criminalize doctors performing abortions. That case was Roe v. Wade, a 7-2 decision written by Justice Blackmun. Can you give us an overview of what Roe was actually about?
Nancy Northup 04:39
So, Roe came out of the state of Texas, which continues to generate a lot of abortion restrictions. And in that case, the question was whether or not the state of Texas could criminalize abortion. And the Court ruled that in the early months of pregnancy, before fetal viability—which continues to be the line that’s critically important in constitutional cases—that women could make the decision with her doctor about ending a pregnancy. And it went into a trimester framework that’s no longer relevant. That changed in the 1992 decision of Planned Parenthood vs. Casey, but that fundamental holding—that in the early months of pregnancy, it is for a woman to decide—remains the constitutional law today.
Michele Goodwin 05:25
Hmm, yes. So that’s, you know, it’s what we’re still living with today. You know, Aryeh Neier, who was the national executive director of the American Civil Liberties Union during that period, told me that there was no question, but that back-alley abortions played a pivotal role in the legislative decriminalization of abortion. But even then, Neier said that decriminalizing abortion was not originally portrayed as a woman’s right issue. Instead, it was sparing male doctors’ criminal punishment for performing abortions. Can you fill us in about what he means with that?
Nancy Northup 06:01
Well, I think about it is the fact that of course, the lawyers who were arguing to the Supreme Court were arguing to nine men on the Supreme Court. And, as with any court case, it’s different, what you’re arguing to the Court and what’s going on out there are social movements.
So he’s certainly right that the movement that was happening all over America at the time, which was that these back-alley abortions, women dying from unsafe abortions. When you talk to anybody who went to medical school at that time, and they all, of course, had to spend time in emergency rooms and they saw again and again, so many patients coming in from botched abortion. So, the movement was about that it was also about women’s autonomy to make these decisions and the right to have autonomy over your body. But in arguing to the Supreme Court—and again, you’re arguing to, you know, nine men on that court—that the arguments about criminalizing doctors were part of what was made to kind of get that decision out of the Supreme Court.
Michele Goodwin 07:00
And that’s a very helpful explanation and very important for our listeners to hear. You know, Mary, I’m so happy that you’re joining us, and I’d like to pick up on the last of what Nancy was talking about. Can you help us paint a picture of what women endured on the ground when they wanted to terminate a pregnancy prior to Roe?
Mary Ziegler 07:22
Well, I think the stories are kind of hard to imagine now. I talked—in researching several of my books—to people who were forced to kind of rely on friends and classmates to raise money so that they could afford an abortion, sending classmates to Mexico without knowing if they would return. One woman I spoke to had a middle school classmate whose body parts actually surfaced after she had been killed during an illegal abortion and actually [was] dismembered. So, the horror stories are, of course, easy to find.
It’s worth remembering that this was happening to all kinds of women. Many of the women I spoke to were college-educated women—actually currently attending college—and trying to get the money together to have an abortion, often having to travel across state lines, many to Washington D.C. or New York, or to Mexico sometimes to unsafe, or at least unvetted, abortion providers.
The problems were more acute for poor women and women of color, particularly Black women, and it was striking to me in doing the research that that problem continued even after Roe. Many states had often literally no abortion providers into the mid-1970s, or at least one. And the rate of deaths due to illegal abortions actually didn’t even go down immediately. So, problems of access were already really acute, even really before the anti-abortion movement got started, and were already disproportionately affecting non-white women.
Michele Goodwin 09:04
That’s a very good point. You know, there’s a famous photo that memorializes so much of this, you know, over the years, researchers and women’s health organizations, they’ve collected these harrowing narratives of women who sought and survived illegal abortions during the devastating pre-Roe era. Sometimes it was their friends, their sisters or mothers who provided the stories because the women themselves, like Geraldine, or “Gerri” Santoro, died during the procedure or shortly thereafter. In Gerri’s case, a photo captured in black-and-white memorialized her death at 28 years old. She was a mother of two and she died alone hemorrhaging at a hotel, a motel actually, on a motel floor in Connecticut. Her boyfriend fled in panic. The next day, the motel’s maid discovered Gerri’s naked body collapsed on her knees, and blood saturating what was once the white sheet and carpet beneath her. Years later, Ms. Magazine published a photo with the headline “Never Again.” But it seems that we’re still dealing with aspects of this.
And Nancy, you’ve said it’s important to note that even women of means suffered trauma, terror and humiliation when attempting to access abortion. Why is that important to emphasize in the wake of known racial and social economic disparities that continue to pervade reproductive health?
Nancy Northup 10:34
Well, I think it’s important to acknowledge both things. Very important to acknowledge that women without means have difficulty today accessing abortion and that the other systemic racist structures in our society make it hard for women of color to access abortion.
But I was struck recently—I was speaking at a conference in Milwaukee and I made the comment that we often do that pre-Roe, women with means could access abortion care and often did and that that would be the case with decriminalization. And an older woman in her 70’s came up to me and she said, “You know, I had an illegal abortion, pre-Roe, and it was traumatic.” So yes, she felt relieved that she had been able to [tell] someone, and was able to pay for the abortion, but she said, “Don’t act as if it’s not traumatic, it is traumatic to break the law. It’s humiliating, it’s frightening.”
You know, I had another friend who was getting a pre-Roe abortion and she, you know, and her husband drove to a parking lot, you know, in New Jersey, and someone came out to them to put a blindfold on the wife, and [said] she should get in my car, “I’m gonna, you know, take her and bring her back.” And they were like, “No, we’re not doing that,” and kept on looking for a way to access illegal abortion.
So, it was a good reminder for her [the older woman] to just say that, you know, it is demeaning for women. It is traumatizing and frightening. Even if you—even if you’re able to actually get access to go through those routes. And I think about how it ties to today. I mean, you know, forcing women to do ultrasounds, as some of these laws do, forcing waiting periods and being read scripts by the government as if, you know, you don’t have dominion over your own mind.
Michele Goodwin 12:30
Now, while 75 percent of Americans support abortion rights, we continue to see state-level political attacks from Texas, Alabama, Mississippi and other states. And even though it’s true that we see these attacks taking place in the Midwest and some other places, I can’t help but notice that in former Confederate states, places where Black people remained enslaved for centuries, we see some very active anti-abortion, anti-contraception, anti-sex education efforts taking place at the legislative level.
And so, I am very pleased to have joining with us today, Yamani Hernandez. Thank you so much for being on the show. I want to turn to you. When you think about the legacy of Roe v. Wade and attacks on reproductive health, how does that fit with the work that you do and more vulnerable women that you serve?
Yamani Hernandez 13:28
Yes. So, I’m so glad to be here; thanks for having me. The work with [National Network of] Abortion Funds that I do on the ground, through our network across the country, with grassroots organizations that have basically sprung up over the course of the last several decades, to respond to the fact that Roe has actually never been enough. Legality has never been enough to actually access abortion.
And so, for us—though, we are, you know, very, very much concerned with making sure that Roe remains, and that abortion remains legal—we know that that is the minimum and the floor of what we need to access abortion. And so, you know, pre-Roe, post-Roe and also through all of the bans that have been happening currently, our members on the ground have continued to still have to travel people across states, have had to pay for housing, have had to pay for child care or watch people’s children, house people, provide emotional support. So, it’s not just the fact of legality of abortion, but also the too strenuous measures that it takes to actually get to care: When you don’t have insurance, when you don’t have the means to pay for an abortion, and that abortion is inaccessible in so many places.
Michele Goodwin 14:59
You know, and on that note, I want to go back to something that you said that, you know, you work with folks who have to drive people across state lines. For you know, for our audience who don’t understand what that is about, can you break it down just a little bit more?
Yamani Hernandez 15:12
Sure. So, 90 percent of counties, I believe is the statistic now, do not have an abortion provider. And so when you see things like that—and also some of the clinic-shut-down laws, where people who are anti-abortion politicians are trying to prevent abortion clinics from even being open—it basically means that if you’re in a state where there’s only one clinic—or you’re in a huge state like Texas, and there’s only six clinics—you may not be able to access an abortion in your state.
As particularly with all of the different restrictions I think that Nancy mentioned—you know, ultrasounds and some of these medically unnecessary time restrictions, if you have to wait a couple of days between booking your appointment and actually receiving the abortion and you have to take time off work—you want to try to access your abortion as quickly as possible, as locally as possible and as affordably as possible. And that is simply not possible in a lot of places. And so, people have to travel, you know, multi[ple] states over often, even with Roe, in order to access their abortions and that is the part that we feel is really an injustice and why we want a lot more than Roe.
Michele Goodwin 16:37
It says a whole lot about the lack of dignity. And I’m so happy that you made the distinction between what law is on paper and what people perceive as the right which is constitutionally provided.
But on the ground what [Roe] means, because that means that the right can be more illusory than real. If you happen to be a woman who lives in any one of those states, and particularly if you happen to be a poor woman and woman of color, because you’re also further disenfranchised economically, politically and in so many ways—which empirically, we know is true. You know, one of the things that I want to surface is that we know that a person is 14 times more likely to die during pregnancy, by carrying a pregnancy to term, than by having an abortion and so that actually puts this in a far graver context in terms of what’s happening in those states with these women. And we know also that there are tremendous racial disparities when it comes to maternal mortality in this country. So, could you just surface a little bit more about the racial impacts and concerns that you might have along those lines?
Yamani Hernandez 17:48
Sure. I think that anti-abortion politicians and community would like it to make—would like to make abortion seem as if it is anti-family, anti-children, and what we experience is something completely different. For me, actually, you know, being a Black person that has had an abortion and who’s also had children and also experienced pregnancy loss, I know that the decision to bear a child—I’m considering all of those factors, I’m considering, you know, whether I will actually die in childbirth, I’m considering the children that I have and whether I can support them, I’m considering the Black boys that I have right now who are, you know, I’m afraid we’ll grow up you know, with—whether they will grow up with the way that police violence and racialized police violence happens in this country.
And so, I think it’s just not as simple as, you know, choice—basically, like, I want to have a child, I don’t want to have a child. Sixty percent of people who have abortions are already parenting. And so, it is, it’s, you know, part of what it takes to decide how, how to make family, whether to make family. When, how, where, under what circumstances—and we get to decide those things for our own human dignity. And, you know, that’s, part of the totality of the issue for me.
And for us, you know, the people who call Abortion Funds, we know that from our National Abortion Fund caller data from a couple years ago, 50 percent of the people we’re calling, were actually Black women. And so, we know as you talked about, you know, the way that the interlocking oppressions of racial and economic oppression in this country is, you know, those two things are linked and bound together. And so when you know that you’re hit harder with, you know, having a livable wage, you know, having affordable housing, having access to health care and insurance, you cannot make a decision about your family without weighing all of those things. And so that is the complexity of reproductive justice. And you know, whether to have a child, not have a child and also be able to parent the children that you have, and affirm also your gender identity in whichever way makes sense for you and your life and your family.
Michele Goodwin 20:18
And it seems that these are struggles that that Black women have had in this country since 1619. You know, the ability to control when and how one might be able to have a child and, you know, and it’s really important to surface this because it’s a country that seems to be lacking in memory of really understanding what that struggle was. You know, I think about it sometimes that, you know, it didn’t last just an hour or a day or a week that Black bodies were bid upon in the United States. You know, if we saw five minutes of that in a movie, we would be done. But the fact that that lasted decades upon decades that flowed into centuries and laws erected around that, specifically around Black women’s bodies, is stunning and still really isn’t acknowledged. And that’s part of that history and legacy that you’re telling us about.
I want to pivot for a moment to Nancy because I want to fill in our listeners on the story after Roe because it connects with what Yamani was just talking about. Because if we leave it just at Roe, then we miss the cases afterwards where the Supreme Court was hostile to the platforms to support poor women in their efforts and attempts to have abortion. So, Nancy, can you fill us in a little bit about what happened after Roe and before Planned Parenthood v. Casey?
Nancy Northup 21:45
Yes. And Yamani is certainly right. Legality is not enough. And that was front and center in the 1980 case of Harris v. McRae. And in that case, there was a challenge to the Hyde Amendment, which said that women who got their healthcare through Medicaid could not get access to medically necessary abortions. It wasn’t covered by-and-large by Medicaid.
And in that decision—and it’s, I think one of the most horrendous Supreme Court decisions ever—the Supreme Court says two things that I think are just brutal. One of them basically says, “So sad, too bad.” Women who want to seek abortion care, you know, are, you know—they should be grateful, basically, that there is a Medicaid program. Right. And so, the fact [Medicaid] doesn’t do everything is “so sad, too bad.”
And the other thing that is just stunning—in the face of the history that you’ve just gone through about slavery and racial oppression, I’d say—is the court says about poverty and your inability to access abortion because of poverty: The government is not responsible for problems not of its own making.
Michele Goodwin 22:54
I know isn’t that stunning? You know, I land on that too. You can’t make it up!
Nancy Northup 23:00
It’s just factually untrue about structural racism; it is factually untrue. And the Court says it as if that is the end of the matter. No need to have economic policies and health care policies that remediate the past history that is structured, well, the way that it has.
Michele Goodwin 23:24
You know, I’m so happy that you bring that up, because I think about that all the time. And I connect it with Fannie Lou Hamer talking about how she was beaten on the way to vote—which was not unusual, you know, Black women being pulled off of buses after they had voted or being subjected to things like, you know, guessing how many bubbles on a bar of soap, how many jelly beans in a jar, before being able to vote. And we know the legislative process is key to one’s uplift. And you know, as she described being beaten on her head and on her legs and so much more—traumatized, physically brutalized—and she says, “All of this, because I don’t want to remain a second-class citizen. All of this because I just want the right to vote.” And that wasn’t 1920. That wasn’t 1820. We’re talking about the 1960s in the United States.
And so, it’s really important, what you’ve just surfaced there, and thinking about this intersection between civil rights movement and also movement to liberalize reproductive rights, and I just want to remind our audience about Dr. King receiving an inaugural award from Planned Parenthood in 1966. And the brilliant speech that he wrote in receiving that award, and it was Coretta Scott King, his wife, who delivered the speech for him because he was likely being arrested someplace else.
But he said that these movements were aligned and that it was cruel to force a woman to bring a child into the world that was not wanted, that she couldn’t afford. He connected the history of slavery to reproductive health and rights and justice. And he said that, you know, in an agrarian economy where it was not unusual to have 10 kids on a farm, that just couldn’t sustain in a city where someone stuck in a tenement that’s one room or two rooms. And so, this is a really important part of the history.
And before I pivot to Kathaleen, I just wanted to touch on what seems to be a contemporary response to Black women and abortion rights—or women of color more broadly and abortion rights—which is the suggestion that somehow this is really a eugenics movement, and this is about undermining women of color, not about liberating them. How would, you know, you respond to that Yamani, Nancy, or any of our other guests?
Yamani Hernandez 26:00
I can’t think of anything that is more liberating than being able to control your own body and whether you have children, and I think, especially in the context of slavery that you mentioned, where we were denied that and bred and were not in control of [giving birth]. It’s completely nonsensical, to me to consider that any other option than liberation, to be able to decide when and whether I have children.
Michele Goodwin 26:34
Thank you so much for that, Yamani.
So, Kathleen, I want to turn to you. I want to ask you how you and your staff are doing, because this is a day-in and day-out, battle to uplift and provide for the constitutional rights that are already guaranteed. And lots of clinics are threatened, their directors are threatened, and so can you just tell us how you’re doing and how does your staff cope with, you know, the attacks that go on at the personal level and not just, you know, battles in the court?
Kathaleen Pittman 27:12
The staff and I, I mean for us, it’s compartmentalizing, I believe; that is the only way we can function day-to-day. Even without the input and all of the—everything that was going on around this case, there were, you know, on a day-to-day basis, we were constantly looking at what is next with the Louisiana legislature, what is next with the Department of Health and Hospitals. And throughout this month, in our most recent SCOTUS case, we’ve of course had to deal with the pandemic as well, which has presented its own challenges.
So, I think from a day-to day-perspective, it’s more about being able to compartmentalize and being able to focus one on one with our patients as they come to us—they come to us for care. And if we become so embroiled in worrying about what tomorrow brings, then we really can’t focus on the patient. So that’s how we do it, day-to-day.
Michele Goodwin 28:23
No, that’s really, it’s stunning. You know, as I work with colleagues in the field, some don’t even want to be caught on photograph because they have kids at home and are concerned that someone might show up at their home and physically threaten their children. These are, these are real concerns, aren’t they?
Kathaleen Pittman 28:46
They are as a matter of fact, our physicians have been targeted, our medical director [has been targeted] at his private practice and as well as his home and around his neighborhood. Protesters outside delight in calling staff by name and looking for us on social media. And, you know, a lot of the staff and physicians do have children, small children. So, you know, we have constant concerns. We like to be smart, but at the same time, we can’t afford to become so overwhelmed that we just throw up our hands and walk away. That’s simply not feasible.
So, yeah, even during the pandemic, when we saw a fewer number of protesters gathering outside the clinic, we were actually getting more harassing phone calls, threatening phone calls or phone calls that were just more unsettling than anything that didn’t quite cross the line into being a criminal offense. So, we saw an uptick in that.
Michele Goodwin 29:55
So Kathaleen, you know, how do you cope then with those kinds of threats? You know, and what’s amazing is how nimble then people are, even during COVID, if they’re not threatening outside, then [they are] calling on the phone, yeah. How do—you know, and we’ll get to June Medical right after this—but I think it’s really important to humanize what that experience is because we hear about what happens to women. But it’s also important to think about the people who are trying to bring these services for the people who most desperately want them and need them.
Kathaleen Pittman 30:28
I think it’s important that you start, first of all, with a really strong, smart and supportive staff. We’re not a huge facility. The staff, they’re probably closer to each other than, you know, then you would normally find in most businesses. A lot of us have very strong family roots. I am one of 16 children, and not all of my family is pro-choice, but those that are, are constantly calling, they’re constantly supportive of me. And I think that makes a huge difference when I do go home and it and it’s been a particularly trying day, I know I’m going to be getting a phone call and a little bit and somebody’s going—one of us sisters, probably—is going to be calling and making me laugh. And so that makes a huge difference. I think having support makes all the difference in the world.
Michele Goodwin 31:30
So how is your clinic involved in this most recent Supreme Court case, June Medical v. Russo?
Kathaleen Pittman 31:37
Okay, June Medical, it’s a little confusing for some people: that [June Medical] is actually the LLC for Hope Medical Group for Women. So, the clinic and two of our physicians were plaintiffs, Doctors Doe One and Three I believe it was, when the admitting privileges requirement was first passed into law. The Center for Reproductive Rights agreed to take up the challenge for us. For us, it wasn’t a—you know, it was a worrisome time. There had been, you know, there’s been, since then, there’s been a change in the makeup of the Supreme Court [with Trump’s appointees, Justices Gorsuch and Kavanaugh].
And as we were pursuing it through the court process, we had to be aware the entire time that we needed to keep our clinics open, but at the same time, certainly didn’t want to create bad law, you know, by any stretch of the imagination. So, we were actually the plaintiffs. When we initially went to court to challenge the admitting privileges, it was after Texas [who had a similar law] had already begun the court process. So, we went through district court, we won at district court level and it was when the state appealed to the Fifth Circuit Court of Appeals that we found that was not going to be the end of it. Ultimately, Whole Woman’s Health [the Texas case] was heard; in the opinion, it was a win for the providers in Texas—
Michele Goodwin 33:12
And should have been a winner across the country.
Kathaleen Pittman 33:14
Exactly. I mean, it was exactly the same law. But the Fifth Circuit chose to—what I call, slap the Supreme Court in the face—and come up with their own ruling in that—
Michele Goodwin 34:23
That was like a slap in the face, it really was.
Kathaleen Pittman 33:34
Yeah! So, I’m sure the attorneys can explain it much better than I, but I know when we actually heard the opinion—when it first came down—I mean, oh, the incredible relief it was, it was pretty amazing.
But then, after the relief, you know, I became so angry because I thought, “Why do we have to go through this? We never should have had to go through this.” The Supreme Court had already spoken in Texas. So, and as a citizen of Louisiana, which is very poor, you know, I’m sitting here knowing how much—or have I have an idea—that this, by [Louisiana] challenging the district court ruling, that is costing the state of Louisiana a great deal of money that they can’t afford or the state can’t afford.
Michele Goodwin 34:25
You are so right. I mean, that’s part of what we see demonstrated in these challenges. And it costs a lot of money, not just for the state, but then also for the organizations that come in to fight.
Mary Ziegler 34:38
Yeah, absolutely. And I think the abortion rights movement understood that actually really well. In the 1970s, it was focusing exclusively on access which led to the opening of clinics like Kathaleen’s across the country, because hospitals and other doctors weren’t willing to step up and fill the need.
Unfortunately, with the, you know, the rise of an anti-abortion movement, it became hard to focus exclusively on access when you had this kind of onslaught of both legal and political obstacles put in place. And that’s still kind of the world we’re living in now.
Michele Goodwin 35:13
So, Nancy, I want to bring you back to help us understand the litigation in this case. What was more broadly June Medical about? Especially given what Kathaleen just mentioned, that there was this other case called Whole Woman’s Health out of Texas. How do we reconcile these two cases? Can you break that down for our listeners?
Nancy Northup 35:36
Yes. Well, as Kathaleen pointed out, the law that was challenged and ultimately struck down by the Supreme Court in June of this year—was an admitting privileges law [that] require doctors at abortion clinics to have admitting privileges in a local hospital—had already been struck, was identical to the law in Texas the Supreme Court struck down in 2016. And the reason that the Supreme Court struck it down in 2016, is because it serves no medical purpose and it has a devastating impact. There’s no reason—abortion is a safe procedure. It’s an outpatient procedure, by-and-large, and to require doctors to have admitting privileges—hospitals don’t give admitting privileges to doctors who don’t admit patients. And so, [the admitting privileges law] was going to have a huge impact in Texas, closing half the clinics in that state. And in Louisiana, as we established in the trial, it was going to leave all but one provider in the state of Louisiana to serve almost 1 million women of reproductive age. So, it goes up the Supreme Court.
Michele Goodwin 36:35
Which is stunning in and of itself. I mean, imagine if there was, you know, one doctor who served patients who had heart attacks; you know, a million people, you know, and there’s just one cardiac surgeon that’s nearby. Or one dentist for a million people or, you know, fill in the blank of whatever that specialty happens to be.
Nancy Northup 36:55
Exactly. And so this was, you know, when the Whole Women’s Health case came down in 2016, you know, the trial judge in that case, you know, looked at all the evidence Louisiana and said, “Well, this is clearly also unconstitutional under this ruling.” And as Kathaleen pointed out, I think “slap in the face of the Supreme Court” is the right way to describe the Court of Appeals’ opinion. We should have won in the Court of Appeals. And they found ways to distinguish the facts—you know, smart lawyers can do anything. And so, they said no, that the law can stand. So, we had to take it to the Supreme Court. People often say, like, “Why’d you bring this case to the Supreme Court?” We had to!
Michele Goodwin 37:31
You had really no choice, right? One way of thinking about this is, you know, we have Brown v. Board of Education. And can you imagine within a year of Brown, that Louisiana or any other state says, “Well, we don’t have to honor Brown?” That was just for people who live in Topeka, Kansas.”
Nancy Northup 37:51
Right, exactly. Sometimes, somehow, it’s not stigmatizing in our state. It was just stigmatizing in Kansas to have “separate but equal” schools.
Michele Goodwin 37:59
Nancy Northup 38:00
It was the case was, um, and so yeah, so the Supreme Court, you know, took the case and the composition of the Court had changed. Justice Kennedy had been in the majority in the Texas case [Whole Woman’s Health] to say this law has no medical purpose, it’s unconstitutional, it’s going to harm women by closing clinics. And Chief Justice Roberts would have upheld the law in Texas.
You know, you flash forward four years. Now you’ve got two new justices on the Supreme Court, Justice Kavanaugh and Justice Gorsuch, both put on the court by Trump. Both put on the, you know, Court with the president’s promise during his campaign to only put on the Court justices who would overturn Roe v. Wade.
Michele Goodwin 38:41
And even to criminalize abortion.
Nancy Northup 38:44
Exactly. And then you had Chief Justice Roberts, who voted against us [in the Texas case]. So, what the case came down to—and this is all about the rule of law. So again, kind of when we started talking about Roe and trying to appeal to those nine justices back in 1972-73, here we’re trying to appeal to one justice about what was wrong with this law. Which is that it, under the rule of law, it had to be struck down. And, you know, Chief Justice Roberts voted this time on the basis of precedent to strike the Louisiana law down.
So, the good news was, [the majority opinion] kept the clinics open in Louisiana and also rejected a challenge that said that doctors and the clinic couldn’t vindicate the rights of their patients, also rejected that. You know, the less good news was that Chief Justice Roberts wrote a separate opinion—in which it will remain to be seen how the lower courts interpret that and whether it, you know, weakens the standard—it certainly muddies the waters at a time. But what we need is clarity about the fact that unjustified medical laws that single out abortion providers cannot stand.
Michele Goodwin 39:57
And [what] I love about having you on the show is getting that inside, baseball kind of view of this, right. And as you say, really, in this case, strategizing to appeal to a particular justice, and you won. But even in that win, Nancy, are you also yet concerned, right? Because this is a time in which people were really thinking that that much could be over.
You know, some have said that [the right to] abortion would die by a thousand cuts. Now that [Justice] Kavanaugh is on the Court and [Justice] Gorsuch, they’ve already indicated prior to getting on the Court where they were there—they you know, their leanings [with regards to abortion] were, we already know where Justice Alito’s leanings happen to be, and even Justice Roberts. So, the fact that [Chief] Justice Roberts moved, in this case, was a bit of a victory and yet at the same time, you know, many are saying that really, we should still be cautious. What do you think they mean by that and what’s your sense about what the future holds?
Nancy Northup 41:01
My sense about what the future holds, we, you know, we have 30 other cases at the Center of Reproductive Rights. Planned Parenthood, ACLU have more cases so we’ll continue to fight in the courts. They’re an important arena to fight in.
I mean, I want to get back to like, what Yamani was talking about. It’s the social movement that we need to protect—the right to access abortion care, the right to parent children, the right to have a society that meets human needs. That is where abortion access falls into, that is where access to medical care falls in, that is where, you know, good schools, good housing, good jobs, equal treatment falls into. And that is the work of social movements. And it’s an important dialogue that courts have with social movements and politics, but it is and, you know, for an organization that, you know, we will fight hard representing our clients; it’s like the Hope Clinic in courts. But social movement is essential.
And everyone who’s listening to this show needs to know that they need to show up for the social movement work, we need to articulate our vision of American society that we want, which is a society that does treat everyone with equality and respect and that has policies that meet human need.
Michele Goodwin 42:21
You know, Mary, I would like for you to pick up on what Kathaleen was just telling us about, and of course, Nancy too about the June Medical litigation. And so, Nancy has just given us some idea of what that means in connection with Whole Woman’s Health, but I want you to help us understand where this case leaves us. Is the battle over, or should reproductive health rights justice advocates be concerned?
Mary Ziegler 42:47
There absolutely are reasons for concern. One of the reasons that the Whole Women’s Health decision was such a victory was because it gave real meaning—for the first time in a while—to the undue burden test, which is still the test the Court applies to any abortion regulation. And Chief Justice John Roberts really rewrote that test in a way that makes it much less protective of abortion access, and kind of left a kind of breadcrumb trail for anti-abortion lawyers looking for ways to restrict abortion access without directly contradicting precedent. So, I think supporters of reproductive rights, health and justice need to be kind of on the lookout for that strategy going forward. And Roberts even kind of eerily made the point that no one had asked him to overturn Roe v. Wade, or Planned Parenthood versus Casey. So, we still don’t know what he would do, if directly presented with an invitation to do that. So, I think we’ll see more abortion restrictions—and a lot of abortion restrictions specifically written with Roberts in mind.
And of course, we can’t assume that Roberts will be the Chief Justice indefinitely, especially with [Justice] Ruth Bader Ginsburg’s unfortunate latest round of health struggles—we don’t know who will be on the Supreme Court in the next year to four years and if Roberts will even be the one deciding what happens to reproductive rights, health and justice in this country. So, I think there’s absolutely still reason for vigilance.
Michele Goodwin 44:20
Well, you know, on that note, I’m so glad that you mentioned that and really so pleased at what Yamani lifted up, which is that these inequalities, which have been embedded and entrenched within our society, we see how it spills out and the interconnectedness of this all the, you know—what many people are becoming woke to—right, the intersectionality of all of this. Right, that it’s hard to talk about reproductive health and rights when you’re also concerned about police violence, and as Yamani mentioned, about, you know, whether your children will be able to grow up to be adults, given the specter of violence that they encounter, you know, whether, you know, whether it’s from voting rights to violence that’s encountered or to even be able to get a quality education. That all of these issues are actually linked to reproductive health rights and justice, as you mentioned, Yamani.
And so, I want to pivot back. And you mentioned reproductive justice. And for those who were wondering, what’s the difference between talking about reproductive rights and reproductive justice? What do you say to them?
Yamani Hernandez 45:33
Yeah, I like to just break things down into—
Michele Goodwin 45:37
Break it down!
Yamani Hernandez 45:38
The two, the three categories … We think our work at the intersection of all three, but reproductive rights, meaning a lot of what Nancy is talking about: the litigation strategy, that making sure that we actually have laws that are in place, that ensure our rights, that would that give us a framework to fight around, and to defend and also create a new laws, you know, that increase and expand our rights. You know, to things like telemedicine in every state and being able to access our abortions through telemedicine. So those are examples of, you know, rights and laws around reproductive, you know, reproductive rights that we are fighting for.
Reproductive health will be more the clinical aspects and making sure that we have access to the literal healthcare services. You know, it’s more about strengthening the network of service delivery, recognizing that Planned Parenthood is not the only abortion provider in the country, though they are the largest. Most abortions are actually provided by community-based local and independent abortion providers and the need to strengthen that network of service providers.
And then reproductive justice is looking at not just the legal right and not just the literal healthcare service and the delivery of that, but the context, you know, the water that we’re all inside of. You know, if we were like all fish, what are we swimming in? Which is a context that is about the interlocking oppressions that that we all experience and that people of color experience at higher and more complex rates that, you know, layer and layer and layer and layer on top of each other and on top of us in a way that makes life extremely burdensome. And so reproductive justice is a framework that was coined by Black women in 1993, 1994 [Editor’s note: The term was created in 1994] coming out of SisterSong Women of Color [Reproductive Justice] Collective. You know, it’s not just about abortion; we also should be able to decide to have our children in a context where…they get to grow up… that we can provide for them, that we have the resources that we need. And then if we do not decide to have children, that we’re able to do that without stigma and shame and that it’s viewed as liberation. And then, parenting the children that we have, as Nancy was mentioning, in a context that, we have safe schools to send them to. Schools that function. Communities where, you know, where we can actually afford to live in, you know, that we have a number of bedrooms and houses and food—
Michele Goodwin 48:57
Yamani Hernandez 48:58
That we can provide for them. I think of the work of ACCESS Women’s Health Justice, one of our members in California, who fought for so long to remove the family caps on welfare policy that said that, basically, you know, if your family grows, you will not—your benefits will not grow. And well there’s a sort of coercion that happens, you know, by the state. And so, looking at you know, reproductive justice is looking at all of that and saying that: We cannot actually access reproductive health rights, health or rights, if we are being oppressed in all of these other ways.
Michele Goodwin 49:34
Well, you know, that you mentioned welfare rights. You know, it’s stunning to think that families are monitored by how much decorations are on birthday cakes. A lot of people don’t know that, right, that if you happen to be receiving government assistance, they monitor whether you buy a pumpkin during Halloween, the amount of decorations on a birthday cake—you almost can’t imagine these kinds of trifling things that are also denigrating and dehumanizing, which is what it is that you’re speaking to. That when we think about reproductive health rights and justice, if we are to understand the full person and not just the constitutional person—because you’ve already described that, even though what may be on paper may not be real in life— that if we really are to care about folks, then we have to think about the fullness of all of this.
You know, and it brings me to one last topic that I want us to get to on the show, which are the other ways in which pregnancy has become a point of political attack. And that’s also been with regard to the criminalization matters of individuals during pregnancy where there are folks that have been targeted for arrest or threat of arrest for refusing C-Sections, falling down steps, attempting suicide during pregnancy. You know, I want to ask you all: What do you see as the that future? Even though there was a win in June Medical, those laws continue to exist and are continuing to pop up across the country.
Kathaleen Pittman 51:19
I did want to point out that, as you said, even with the win, even with the clinics in Louisiana remaining, there are still barriers to access—three clinics and a lot of travel involved. We still receive calls from women wanting to know what can they do—they don’t have transportation, they don’t have the money, they can’t manage the childcare to get in—what can they do where no one would know, but they took care of, you know, a self-[managed] abortion. So, you know, I just wanted to put that out there because that’s of concern.
Yamani Hernandez 51:58
Yeah, I will, I always say, you know—I mean, well, we’ve all heard it—you know, criminalizing abortion doesn’t stop abortion. It just makes abortion harder to access and potentially makes it more dangerous for people. [This] is why we really have been taking up advocating for self-managed abortion and, learning about your rights, both your rights around it and how to navigate criminalization but as well as the health aspects of it and supporting people and knowing if you are going to seek this out what are the ways to use pills responsibly that will ensure the outcome that you’re looking for. And, you know, [we’re] continuing to advocate for the laws to actually change to make it more safe. But we also know, as we’re talking about criminalization, that Black and brown people are already suffering from, you know, over-criminalization and so when we think about the criminalization of abortion, we know that that’s going to be doubly-hard and impact Black and brown people doubly, if not, and make it even harder for people to access the care that they need.
Michele Goodwin 53:20
Well, and what’s also stunning, you know, Yamani, is that even the criminalization if you want to carry your pregnancy to term, in many ways, you know, when one thinks about the history of all of this and what gets us here, I think part of it was the failure to recognize the human dignity, the full citizenship of Black and brown women during the 1980s and 90s that were being dragged out of hospitals in shackles and chains, with doctors claiming that they were “crack moms” and that they were going to have “crack babies.” You know, since that time, there have been newspapers to rescind their reporting during that time, the New York Times amongst them, but if you look back at the reporting in the 1980s and 90s, and the early generations of laws that were targeting pregnancy, it seems to me that, overall, Black and brown women were ignored. And they were really the canaries in the coal mine for this time but given that they were already despised in many different ways, and also the rhetoric of the “welfare queen,” all of this combined in a perfect storm, which stigmatized and stereotyped them and their pregnancies. And really, if we want it to think about some of the early vestiges of the kind of personhood movement, if you will, it was really against them, right? You know, these laws that, you know, set first the prosecutorial action and then that followed by laws that suggested that their embryos and fetuses were children, using laws that apply to drug trafficking against a woman who used a drug during pregnancy, applying child abuse laws that were intended to apply to children, but applying them to fetuses, right? I mean, that was, you know, 30 years ago and so is there a surprise that we are where we are today?
Yamani Hernandez 55:21
Yeah, I don’t think so. And I was just gonna say, one of the most impactful things that I’ve ever heard you talk about, it was listening to your lecture on the sort of dismantling of the granny-midwife and the creation of gynecology in this country.
And, you know, just thinking about how, you know, Nancy’s statement about, you know, the government is not responsible for things that are not their own doing. And the thing about this, you know, legacy of making lack of access, you know, an issue for Black women, Black people, and how it’s, it’s very—it’s by design, basically. And so, you know, being able to dismantle that system means, you know, going back to our ancestral wisdom, dismantling the ways that our lack of access has been designed.
Michele Goodwin 56:16
Mmhmm. So true. Alright, so we’re about to close. But before we do, I want to ask you all a question: Where do you see a silver lining? If you could just give me, you know, your quick point? Do we have silver linings, and if so, what are they? Nancy, I’ll start with you.
Nancy Northup 56:37
Oh, I see silver lining in the racial justice movement going on right now. I see the silver lining in the reproductive justice movement that Yamani talked about—that’s been going on for decades, but that has, you know, picked up steam. When people say to me, “Oh, how can I get involved?” I’m like, get involved with an abortion fund, get involved close to home, learn what the access barriers are all about.
So I think there’s an engagement now of the public in these issues, and hopefully also the, as you say, the policing of the room issues that go well beyond access to abortion care, to other aspects of women’s decision making over their bodies during pregnancy, that this is going to continue to build in comprehension and understanding. So, I mean, I think we’re at a moment in this country where again, we have to—the reason that we have abysmal social welfare policies is because of the racism that was embedded in this nation and Jim Crow and racism that has continued. It’s why we do not have the kind of social policies they have in countries that do have policies and a constitution that speaks to meeting people’s needs. So, I feel like it is what we’re seeing in social movements today that is quite hopeful.
Michele Goodwin 57:52
Thank you. Kathaleen, a silver lining?
Kathaleen Pittman 57:55
I think with the SCOTUS wins, it has caused a lot of people to wake up and see what is actually going on. I’ve seen a lot more activity, a lot more people saying, “What can we do? What do we need to do?” And I think the interest has really perked and for me that’s a silver lining I think, you know, that’s where we need to be heading now.
Michele Goodwin 58:23
And Yamani, what do you see as the silver lining?
Yamani Hernandez 58:27
Yeah, I really have to say [Abortion Fund’s] members. You know, seeing Abortion Funds on the ground who have, for so long, worked almost solely as volunteers start to get more resources, start to get see people donating more, volunteering more, knowing Abortion Funds as a household name is giving me a lot of hope and, and security for what’s possible, knowing that we’re growing.
Michele Goodwin 58:52
That is a silver lining. And what about you, Mary Ziegler?
Mary Ziegler 58:56
I do, I mean if you take a look at the kind of long history of this struggle, it’s certainly striking how much more reproductive justice activists and non-white women are being heard. Probably the kind of defining story of the early decades of the struggle for abortion rights for me, it’s really the fact that the Hyde Amendment passed, the fact that the Hyde Amendment became a blueprint for every abortion restriction that followed, and the fact that the mainstream pro-choice movement did almost nothing about it. And that kind of scenario, I think, is politically unimaginable today. It’s unimaginable when you think of reproductive rights organizing and how it’s changed. It’s unimaginable when we think about how much more powerful, vocal, and influential reproductive justice advocates have become. It’s even unimaginable when you think about how the Democratic party has changed and its stance on these issues. And so I think all of those are reasons for optimism. There’s at least a kind of cohesive vision of what it means to be in favor of reproductive rights, health and justice that isn’t being discarded as soon as it appears politically convenient, and that’s new, I think, in the struggle.
Michele Goodwin 1:00:04
You know, on this show, we’re proud that we’re unbought and unbossed, lifting up the legacies of women like Pauli Murray, Ida B. Wells, Shirley Chisholm and other forerunners before them who fought for the right to live their independent lives. And our guests today, you are certainly bringing the unbought and unbossed sentiment to our show today. And so, I thank you very much for being with us, for helping us to unpack these issues.
And there’s so much more to think about, such as what’s happening at the state level, medication abortion during COVID—so much more. And so I’m hoping that you’ll join me again, so that we can talk more about these issues and really help to further explain what it is that we need to do in order to lift up the dignity and integrity of those who’ve been shut out from being able to access their constitutional rights in this space. So, I want to thank my guests, Yamani Hernandez, Nancy Northup, Kathaleen Pittman and Mary Ziegler, for joining us and being part of this critical and insightful conversation. And to our listeners, I thank you for tuning in for the full story.
We hope you join us again for our next episode where we will be reporting, rebelling and telling it like it is, with special guests tackling issues related to the rollercoaster ride of the Supreme Court this term. We’ll be joined by Brigitte Amiri from the ACLU; Erwin Chemerinsky, the dean at Berkeley School of Law; Leah Litman, of the “Strict Scrutiny” podcast who’s also a professor at the University of Michigan; and also, Professor Franita Tolson.
Now for our guests today, for those who want to find out more about you, we’re going to have things posted to the msmagazine.com website. But if our listeners want to connect with you through social media, where might they be able to find you? Yamani? Do you have a handle? Where can our folks find you on social media?
Yamani Hernandez 1:02:13
Sure, you can find Abortion Funds at @abortionfunds on Instagram and Twitter. And you can find me on Twitter @yamaniyansa, Y-A-M-A-N-I-Y-A-N-S-A.
Michele Goodwin 1:02:26
Okay! Nancy, where can they find your work on social media?
Nancy Northup 1:02:32
You can find it @ReproRights [on Twitter].
Michele Goodwin 1:02:35
Alright, that sounds great. Kathaleen, any social media we should point to?
Kathaleen Pittman 1:02:41
Simply Facebook. I do not tweet. So, but yeah, just—and also you can look for Hope Medical Group for Women and reach me through that as well, on Facebook as well.
Michele Goodwin 1:02:56
That sounds good. And Mary Ziegler?
Mary Ziegler 1:02:58
I am @mary_zieglerfsu on Twitter. I think that’s actually right, so let me check that. Yes, @mary_zieglerfsu. Lately I don’t even know my own Twitter handle.
Michele Goodwin 1:03:14
Speaking of equality, and the urgency of completing the unfinished business, I want to play a clip of Representative John Lewis from 1963 as he participated in the famous March on Washington before we close.
John Lewis 1:03:30
To those who have said, “Be patient and wait,” we have long said that we cannot be patient. We do not want our freedom gradually, but we want to be free now! We are tired. We are tired of being beaten by policemen. We are tired of seeing our people locked up in jail over and over again. And then you holler “Be patient.” How long can we be patient? We want our freedom and we want it now. We do not want to go to jail. But we will go to jail if this is the price we must pay for love, brotherhood and true peace.
I appeal to all of you to get into this great revolution that is sweeping this nation. Get in and stay in the streets of every city, every village and hamlet of this nation until true freedom comes, until the revolution of 1776 is complete. We must get in this revolution and complete the revolution. For in the Delta in Mississippi, in southwest Georgia, in the Black Belt of Alabama, in Harlem, in Chicago, Detroit, Philadelphia, and all over this nation, the Black masses are on the march for jobs and freedom.
Michele Goodwin 1:04:59
If you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America, being unbought and unbossed, and reclaiming our time are important, then be sure to visit us at Apple Podcasts. Look for us at msmagazine.com for new content and special episode updates. Rate and subscribe to “On the Issues with Michele Goodwin” in Apple Podcasts, Spotify, iHeart Radio, Google Podcasts, Stitcher and more. Let us know what you think about our show.
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