Abortion, Surveillance, and Vigilantism : An American Story


People would say this is just simply alarmism. This is extremism to compare this historical moments in the past. No it's not. It's that those historical moments in the past were in fact extreme. It's not our articulation of them. That's extreme toward making abortion inaccessible. To vast swabs of this country has been happening ever since roe was decided and there has been people who are not surprised by this who have been working against that trend and those are the people who are being targeted by this long. Hi and welcome to amicus. This is late. s- podcast about the courts. Then the law and the supreme court and the rule of law and i am with weak and a cover the courts for sleet and today. We're going to bring you an off week special episode to discuss the order. That was just handed down right before midnight on wednesday night up holding a really novel. Texas abortion law this law. We've actually talked about it on the show before is known as sba effectively bans all abortions. After the six week of pregnancy many many women do not know that they are pregnant at six weeks of pregnancy. There is no exception. For rape and incest governor greg abbott signed. Sp eight into law in may and of course the trick behind the law is that unlike similar deliberately unconstitutional abortion bans. heartbeat ends. What have you. Sba doesn't allow any state actors to enforce it there in fact prohibited from enforcing it instead literally everyone else. Any american anywhere is empowered is in fact conscripted to bring civil lawsuits against either an abortion provider. Or anyone who quote aids and abets those terms. Go undefined on abortion. That could include your counselor. Who talks to you about your options or the uber driver who drops you off at the clinic. Look the law is unconstitutional. Texas is well aware that the supreme court precedent sets the bar for abortion bans at viability. That somewhere between twenty two and twenty four weeks but this law was deliberately crafted so that there is no state actor and thus nobody for an abortion provider to take to court to try to get injunction one other thing if an abortion provider is sued in state court under sb eight. And they lose well. The winning party not only gets bounty of ten thousand dollars possibly more. They also collect. Attorney's fees providers in this case tried to sue a whole bunch of defendants including judges and others who will presumably be tasked with enforcing this law. This case was proceeding to trial in federal court until the fifth circuit stepped in to. Just stop it. The providers then took the case ironically to the supreme court on monday and the court ordered briefing on tuesday night at midnight. The law went into effect and posts. Six-week abortion stopped in texas now according to the providers who are suing to block. Sba at least eighty five to ninety percent of abortions in texas take place after that six week of pregnancy all of those abortions are now illegal under sp eight. The court remains silent as the low in into effect the website the nineteenth described the scene at the whole women's health clinic in fort worth as the clock ticked down to midnight and clinics. Dr sadler prepared to close the doors quote. One young woman arrived at her first appointment to the clinic that same night. She was a drug user. She told sadler set to begin serving a five year prison sentence in a week. She already had three children at home. She didn't want to deliver a baby in jail. She dropped to her knees on the cold floor in front of sadler begging her to take her to perform the abortion so wednesday was a long day of waiting for signals from the supreme court and just before midnight. The order finally came down five justices in one. Long paragraph unsigned announce that texas could continue to enforce its ban because it was unclear who the plaintiffs could sue and whether they could prevail at trial all dissenting justices including chief justice. John roberts expressed shock that an unconstitutional law would be allowed to stand in texas. Based on a cursory glance on the shadow docket justice sotomayor spoke for many us when she wrote this quote. The court's order is stunning presented with an application to enjoin flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny. A majority of justices have opted to bury their heads in the sand last night. The court silently acquiesced in a states enactment of a law that flouts nearly fifty years of federal precedents. Today the court belatedly explains that it declined to grant relief because of procedural complexities of the state's own invention in quote. It is truly hard my friends to overstate the enormity of what just took place on the shadow docket. My guest today are here to help us understand both the legal and constitutional issues at play the ways in which history seems to be folding back upon itself and the very immediate implications for women in their health. These two women are guiding lights in my own thinking and i should also note that they are each speaking to us in transit. So my apologies in advance for the imperfect quality of today's audio. Michelle goodwin is chancellor's professor of law and director of the center for biotechnology in global health policy at uc irvine school of law. Her book policing the womb came out last year from cambridge university. Press professor goodwin is also a committee member of the aclu and host of the podcast on the issues with michelle goodwin. rebecca trae. Stir is a writer at large for new york magazine. She has written about women from a feminist for the new republic l. salon. She's contributed to the nation the new york observer of the new york times and the washington post. She is also the author of all the single ladies and the award. Winning big girls. Don't cry and most recently. The author of the phenomenal book. Good mad rebecca michelle. Welcome to the podcast michelle. Let's just start with spa. I guess. I laid out the gist of it in my introduction but you wrote in ms magazine that this kind of citizen attorney gen role. Vigilante law has a long pretty sordid history that harkens back to the fugitive slave acts. Can you talk a. Can you talk a little bit about the ways in which this really chimes in the key of some very very ugly american history. I thank you for having me on your show. Dalia and yes. This does hark back to some very dark american history and dark american history that has been supported through the united states supreme court so the fugitive slave act provided for citizen participation in the establishment the furthering the preservation of american slavery. It weaponized citizenry a deputized citizens to surveilled to stock to apprehend people who were in violation of us laws by escaping themselves out of Slavery out of an inhumane situation. There were bounties that were provided for their success in surveilling and successfully apprehending obtaining individuals Who dared to exercise liberty autonomy and freedom. And when you think about this texas law there are certain analogues that eerily resemble that of the fugitive slave act in that it provides for a right of action of private citizens it provides for financial renumeration of those citizens who are able to successfully peg Someone who has aided or abetted an individual in obtaining abortion and what this means with the law written in such broad terms in this could implicate. The uber driver the lift driver. The us driver The receptionist that works at an abortion clinic virtually anybody who has been in the way of the path of a person exercising the constitutional right to terminate a pregnancy. What's interesting about the law. Dalia is that After roe v wade there was planned parenthood v. casey and what comes out of there is that there should be no obstacle placed in the path of a woman and terminating a pregnancy and texas has flipped that on its head Which instead you may sue anybody who aids in a person on the path of terminating a pregnancy it is very dangerous law and it is very dangerous in alarming. What has happened at the supreme court and rebecca. You have been writing about Women and their bodies And their atonomy. For certainly as long as i've known you and i want to caveat this that you're not a lawyer and don't pretend to one. I wonder if you can talk just for a minute about the fact that for decades after casey. Michelle just talked about. Casey abortion opponents. Wood frame their support for abortion bans in terms of deep solicitude for maternal health wanting vulnerable women to make better choices just having better abortion facilities deeply deeply wanting to be connected to a health system that loved and cherish them. Boy did that. Turn on a dime right well. That rhetoric has always been just absolutely hollow from the start as both of you know and thank you for having me. I couldn't be more honored to be talking with both of you. Both of your work is so fundamental to my own and understanding how this works. Because i am not a lawyer. The first thing. I would say that you know the ara of solicitude for for women's health and bodies and wellbeing and the always infantilized protectionist approach of You know political and judicial limits on women's freedom and autonomy as somehow for their benefit. That was always a lot right. That's always a hollow lie And it's just another framing of how to prevent women from fully exercising their rights and experiencing access to a full undignified existence in this country You know sort of socially civically economically legally sexually. That's always how that stuff has been denied and so the fact that they would turn on a dime. I don't you know sure because it was always. It's always it's always a false fronts. but interestingly listening to what michelle is talking about in terms of the vigilanteism aspect of this and the kind of payoffs bounty payoff truly bounty hunter payoffs being offered in texas right now. One of the things that i can't stop thinking about And that i've been rolling over in my had the past couple of days. Is that a law like this. Which is so strange and has these deep historical roots. That michelle is describing. But it's you know feels like wow ten thousand dollar bounties they are targeting the very people who have seen us building toward this for decades and have organized to protect people from its impact so in fact there have been limits on access to abortion especially for poor women and for black and brown women for decades basically ever since was decided thanks to the hyde amendment which is a legislative kreider that prevents anybody who receives federal insurance money from using that insurance to get abortion thereby making abortion all but illegal anyway in this country but there have been. Many people have remained asleep to this right. This has been true. Abortion has been accessible in huge parts of this country for years and decades and yet people still satisfy themselves and go to sleep easily at night thinking. Well there's row protecting us right. It doesn't actually work to protect millions of people who need abortions out there rights but the people who have understood that are the activists in the abortion fund movements in the reproductive justice movement who have been organizing over years to provide ways for women who've been cut off from that access to gain better access to help them raise the money to pay for procedures that they might not be able to afford to help them at travel and let them up in places that have mandatory waiting periods or to get them out of areas where there's no clinic or care available into areas where they can get an abortion. There are people dedicated righteous activists and people who have worked their whole lives to do the very thing to support people who need to get abortion care but have been prevented from doing so over decades. Not just starting two days ago but over decades this law takes aim at does systems of support those activists. The ones who've been awake this whole time and have been working to stave off exactly this kind of this kind of restriction and this kind of putative cruelty it's bills the activists the people who've known this was coming but this law targets by saying that they themselves are now being made vulnerable. Then dave themselves are going to be the subject of vigilantism and bounty andrew for doing the righteous work of supporting the people who need the care that they've been barred from and that's something that i can't stop thinking about because yes. This has been a decades long project for many many people. And there is i i see in the coverage of it. The sense that this came on us by surprise it happened overnight and the dark knight and all true in terms of how How the courts do it did it. And how how supreme court did it. But but the move toward making abortion inaccessible. to vast swaths of this country Has been has been happening ever since roe was decided and there has been people who are not surprised by this who have been working against that trend and those are the people who are being targeted by that by this law. Which is the thing that i sort of. Can't stop going over in my head all day today. rebecca. I'm so glad you said that. One of the reasons that you and michelle were my top picks for talking about this today is that i think both of you are people who are completely unsurprised by the decision by what happened and the speed with which it happened. Because both of you are people who've been shouting from the wilderness for a very long time that this was coming michelle. There are so many problems with this law. Including and i really want lift up. What rebecca just said that. I think it partly intends to isolate women from the networks of people who could advise and care for them. But i wanna really focus in on the fact that the supreme court shoes to chose to let this bill stand on the basis of a really hyper technical jurisdictional argument and i wonder what it signifies to you that this was disposed of in this kind of back of the napkin. Unsigned order in the middle of the night on the shadow. Docket even as there's a fifteen week. Mississippi abortion ban case teed. Up to be heard this fall. This could have been six three on the regular docket with regular briefing and regular argument and none of that happened. Why well what this does is it. Shows a disdain In many ways for the lives of those who are affected by this texas law now in this dispatch of less than seventy two hours of thought. Which is what justice. Kagan said the majority which is a conservative majority ultimately aided in gutting roe v wade in the state of texas and to your point they did so on this technical ground now if one is to believe that this was the only choice that the supreme court had then we'd have to believe that centuries of jurisprudence mean nothing including marbury v madison all of the supreme court cases early on centuries ago that established the supreme court the supreme arbitrator arbiter of the land and so one can't take seriously the quirks failure to intervene in this case. And i think justice roberts dissenting opinion. The case makes that very clear where he really shreds in many ways his conservative cohorts in the court Making clear that of course they could have intervened and of course justice. Soda meyer ish. A very compelling descent. As i mentioned justice kagan did as well but what this allowed was for the supreme court the majority To come away with clean hands. I in that they make no argument as to the constitutionality of the law. So they get to appear as if their own priors were not somehow on display in their views old to impose an injunction in this case as rebecca mentioned. This is a long time in coming. And so as we look at the jurisprudence that's been articulated dissent by these Justices as we look at their private leading such as justice. Amy coney buried this advertisements that she has signed onto this each's that justice alito is given the dissension currencies. Coming from a justice. Clarence thomas that this too has been victorious moment for them and let's be clear that this is part of a very well oiled machine and part of this machine has been the lifting of the federalist society that has played at enormous in fact an outsized role in who sits on the bench today. Let's be clear that there are a number of movements to come together to put us in this particular space. The decades long antiabortion movement which has been well oiled and well funded with some of the sharpest legal minds. Paid a lot of money to help along this bain and we see that in the mississippi case we see that in the texas legislation here that movement has also affected who sits on the bench as well. What donald trump was in office as president. He was able to nominate more judges to the federal bench than any other president saved. George washington Most of those judges that he nominated were already filtered through the most conservative filter. Ever those are people who are on the court not fifth circuit as well and so we can't see the supreme court's involvement is just simply isolated isolated from their involvement in social groups. We can't see what texas the legislature did as isolated from the broader movement and even isolated from mississippi. In these other states this has been a deeply coordinated movement that has taken foot and in that way. No it's not surprising. A what these conservative justices just did and these are the warnings that rebecca has issued that. I've issued in a book at across many many different law review articles and this is a complete disregard as well for the health and safety of the people who are most affected by this. Let's remember that in two thousand sixteen and whole woman's healthy heller stat justice briar out served in this was based on a robust durable record from the district court and from science and evidence through empirical research that person's fourteen times more likely to die nationwide in the united states by carrying pregnancy to term them by terminating it. Now let's add what that looks like in texas where the maternal mortality rate is considered amongst the worst not just in the united states but in the entire developed world and then let's add on the layer race. It's chew because nationwide a black woman is three and a half times more likely to die than white women who carry pregnancies to term but when we look at taxes in certain counties and districts in texas those percentages dramatically multiply so in many ways it is not extreme to say it all that for some a there was already a death sentence by a coercive means of forcing them to carry pregnancies to term that they did not want and that were dangerous to their health. What taxes is shown. Now is a complete disregard for that and let's be where the statistics on return war talapity coming out of texas are coming out of the texas department of health and safety. These are not ones that are big made up by pro choice groups or anything of this is texas is owned data about how deadly it is to be in texas and to be pregnant and the data from that is actually sadly not much different than the infant mortality rate in texas it would be great if the texas legislature prioritized attention to that the fact that they don't reveal incredible disdain in the for the lives of the people who can become pregnant. We'll be right back. Is something preventing you from achieving your goals. What interferes with your happiness. Checkout better help dot com slash amicus. Better help will assess your needs and match you with your own. Licensed professional therapist connect in a safe and private online environment. It is so convenient. You can start communicating in under forty eight hours better. Help is not a crisis line. It is not self help. This is professional counseling done securely online. You can send a message to your counselor anytime and you'll get timely and thoughtful responses plus you can schedule weekly video or phone sessions and you can do this without ever having to sit in an uncomfortable waiting room better. Help is committed to facilitating great therapeutic matches. So they make it easy and free to change counselors if needed and it's more affordable than traditional offline. Counseling and financial aid is available. I want you to start living a happier life today. As a listener you will get ten percent off your first month by visiting our sponsor at better help dot com slash amicus. Join over one million people who have taken charge of their mental health again. That's better help. H. e. l. p. dot com slash. Amicus hey everybody. This is jason buckland and let me welcome you. Back to our podcast. In conversation with shop class now season one was all about the biggest names in business. Steve madden dany. Reefs chip wilson. But wait till you hear who. We're talking to now for season to fill brim ceo asper web smith founder to enter fast. Heather hasson trina sphere co founder. Ho ceo crew sock kohner lower carbon capital okay. Ceo here sheets. This conversation shop defy plus. And i want to be really clear that we are talking to michelle in a hotel room rebecca in her car. We briefly lost rebecca for a second there but rebecca. I wanna ask you a version of the very same question. I asked michelle. Which is is there any way to take this late night order. That doesn't even as michelle noted pretend to grapple with the constitutionality of row and casey the merits of the case. But instead just bats it away and says oh well. I guess there's nothing to be done. We'll consign the women in the second most populous state in the country. To having the kinds of outcomes michelle's been describing. There's a kind of sloppy carelessness about it. That feels to me really profoundly different from the urgency. We heard from the justices even on the shadow. Docket maybe especially on the shadow docket when the people coming to them with exigent concerns wanted to pray in cova together or wanted to execute somebody on death row or wanted to as we saw last week reinstate the remain in mexico policy those things. Those exigent concerns are seen as so visible and so urgent to the justices. This felt like really really profoundly different. And i guess i wanna ask you what asked michelle which is is there some explanation for why they wouldn't just sit back. Take the mississippi case. Have it come out six three fill with the doctrine why it feels like this notches back of the napkin but back of the hand. It's so interesting because that's actually. You mentioned that. I was in the car and i. I hope that. I because my audio did go out that i'm not going to repeat anything that michelle just said or not engaged with it substantively. But i didn't hear parts of her answer but it's what my family has been debating in this car ride this entire day. That question that you posed. Why didn't they just wait right. And and i can't pretend to know the answer. They could have done it. And you write this in your in your column. They could have done that. Chint stroking we're taking this very seriously And they chose not to do it. Uae one answer is almost certainly just pure disdain and disregard for the kind of people they imagine need abortion and. We know that all kinds of people need abortion. We also know that certain people will always have access to abortion You know wealthy people white people With with money and means and the protection of the system and elite systems that will protect that right but but the messaging of this including as you say this just been delay. The lack of urgency That they didn't he didn't do this decision a night before. It's like it's below. There is below their concern right. You know adam were wrote so much. W- with regard to the trump administration was brilliant observation. That i think was incredibly vivid and descriptive the politics of the trump administration. The cruelty is the point right that there is a message power. There's a message of domination In showing your disregard in your disdain and this is not important right and and that's part of what my guess is about why they did it. it certainly an issue. That's important too many of them right. We know that abortion is important to amy conybeare. We know that abortion is important debris cavanaugh. We know that the That this is not something. They are not interested in And so and and i can't answer dahlia. I don't. I don't have a great about why they did this from a lay person's perspective who doesn't i don't have the kind of legal background that you and michelle do i think. Wow it feels like this is actually undercutting the court itself and and precedent. Even if it's precedent that we may guess they're eager to overturn right. And i believe they are eager to overturn it and And i have suspected that they would for a long time but to say like we're not even going to bother to to uphold this federal law that that was made by our body by the supreme court feels to me to be self Diminishing in some way. And i am confused by it and this is the conversation we have been having in the car but we also know that this project and this may be what i heard. Michelle talking about The years of organizing from an antiabortion movement. There's also been years organizing by republican party To put a court in place That would take all of the disdain For for reproductive autonomy and and reverse row or make it functionally meaningless Take away Fully take away the rights and access to abortion care to full healthcare And this has been a mission of republican party and we've known it and it's happening through state legislatures right and conservative movement. That was obsessed with taking over state legislatures to excellent effect that you have state legislatures that come up with these wild laws like the one in texas To taking over the supreme court you know and as supreme court see that was that was held hostage by mitch. Mcconnell in the last year of obama's term to a senate been through a replacement for for repeater ginsburg in in the last days of donald trump's administration. The tea party that this is all been sort of in the cover of night stuff. That was just barely under the surface of the republican party for decades. It was the rise of the tea party. That said it was all about you know economic conservatism and being worried about taxation but in fact just got into power. ten years ago inserted voting different planned parenthood. Every week i mean literally what the tea party cared about and yet we also had a press. That didn't acknowledge that at the time. Political press that kept saying no. No this is this is about taxes and actually like speak to that point rebecca because the press that traditional press that you talk about what was also frustrating is that you see this kind of uptick between two thousand ten in two thousand thirteen traumatic between that time. thirteen more antiabortion anti reproductive rights. Laws that are proposed and enacted the thirty years prior and. This is during the time. That barack obama as an office and there are reporters who kind of you know. Framing this time of the tea party as well. This is just all politics. And they're divorcing it from the importance of race and being part of this discourse and the ability to use race weaponize racism weaponize white supremacy in ways that at that time there were reporters talking about. We were post racial. How wonderful it is never black president. Business the new coming of america and there were those like you like me and that other people were saying no look at what this represents. This actually dangerous. What's taking place and sadly it's taken a while for traditional news media to catch up. It's taking a really. I mean as part of a traditional news media right. I can and who have been told so many times over you know i guess. Now i've been writing about this for a couple of decades and let's been told over and over again some version of you're being hysterical if you think this is. What's going on right run-ins back. That is certainly. You're so right about how the right used barack obama's presidency and the kind of Though though will sleeping that it engendered in in on the left and the liberal l. Absolutely pattern south on the back and say look what we helped to do right. I mean it's ho- stray shaw right and post. Racial was white liberals celebrating themselves and saying look at what we did. We got rock obama in the white house while being asleep at the wheel on all of these other funds and to be clear that the democratic party has played a really crucial part here too and encouraging that sleep. Pull in right. Is that a word. I'm very tired You know the the democratic party has refused if the press refuse to acknowledge what the right with doing. In in building its power in state legislatures in in taking over the court in moving in this direction. The democratic party that was theoretically supposed to be on the side of reproductive rights and autonomy has absolutely refused to fight for them. Up until as recently as the amy conybeare permission hearing where nobody wanted to have the fight because the democratic party has has absorbed and inaccurate incorrect. Message find abortion nikki and i would argue that that is because they find because there is an assumption that anything having to do with women's autonomy And human full and equal human thriving. Is he right to allow people But the democratic party has not brought under despite the fact that the legality of abortion is actually one of the most broadly popular issues in this country. Even in red states. people depressed again would. Have you believe that the country is irrevocably divided on right that it's fifty fifty. Nobody's ever changing their mind. But in iraq good smart holing over the past decade has shown that that is a myth seven people even in purple and red states want abortion to remain legal in some form and the democratic party despite having that very good strong evidence in front of them has refused to fight for abortion rights for better abortion act. That's joe you know. This administration is the first time since the nineties that a budget and you know has in its first draft not included the hyde amendment. The democratic party has permitted the hide. A minute to be in the budget. Through the obama administration the democratic critics has refused to fight for abortion and in fact contributed to the idea that it is. There's something distasteful about it that there's something icky about it then. It's a cultural issue. Rather than a key economic issue the democratic party Has been very much a part of this story to and has also been absolutely asleep at the wheel while this was very clear to many people who weren't listen to and who were called hysterical literally called hysterical regularly been saying look. This is what we're building this is. What's this is what the right is trying to do. And and people who've been saying that we're told that they were fantasists that they were over dramatic that they were feminist. Basically by saying you're being over dramatic. Rebecca i'm so so glad you said this and i and i want to stop for a moment and honor the fact that rebecca and i have stood on many a street corner in brooklyn and asked each other historical right now having had somebody tweet that at us or shout that at a So i think it's really really important to fold into this conversation. How subject You can be to claims that you're overreacting. And i also wanna on behalf of you know a lot of the mainstream press acknowledged the fact that this narrative about this moderate centrist court this redemption narrative that says that. Oh look at the end of the twenty twenty one term and look at how centrist brett cavanaugh was and locale centrist amy coney barrett and look at how they are drawn like magnets to how right the left. Fundamentally is. how corrected lead fundamentally as and look at how centrists and moderates they are. i mean we. We really really wanted that story. We pedaled that story. The public right now. Gallup polling is showing that fifty one percent of democrats loved the john roberts court so we also played a part in that narrative of normalizing and legitimizing a court. That was inexorably going to do. This and was selected to do this. And i guess under this rubric of gas lighting. I mean we've talked about the ways in which the court was gas lighting us. The dnc was gas lighting us. The press with gas lighting. As i guess i wanna give both of you a chance to say that just the political system itself kept insisting that there was something about The way women were reacting to brad cavanaugh. The way they were reacting to bear it there was again over the top hysterical. That wasn't a sober and legalistic and that i'm just thinking of you. Rebecca responding to ben. Sasse saying you know. These women are nuts. Why are they dressed up. Like handmaid's saying that they're gonna lose abortion. I mean the gas lighting all the way down so so. There are two instances that i think of one is that ben fast and that was during the cavenaugh confirmation hearing in fact before he was accused of sexual assault by christine bazi ford when protesters were yelling and the chamber about abortion rights Benaissas who is the senator from nebraska. Who's a history teacher. This incredibly condescending things of from the perspective of historian writes like for decades. I've been hearing people scream. That women are gonna die. Where and he used the word hysteria right. You think that. That's an overstatement. No he used the word hysteria. He's said where does this hysteria come from like. This is a ludicrous thing to say. Because i've been hearing it for decades right so that it this guy fighting this condescension from the white male nebraska senator history teacher. You know like a harvard degree or something. Who is telling you that. You're just crazy if you think that the confirmation of brett cavanaugh to the supreme court is going to result in harm to women's bodies right and autonomic right so there's that instance and then i want to bring up another incident also can't stop thinking about which is the end of the any coney barrett hearing just this past fall. When the democratic senator from california dianne feinstein reach over and congratulated as many people are watching this and just gobsmacked that after a supreme court was kept out of barack obama's power right as as brock obama was prevented by the senate by mitch. Mcconnell from appointing a justice to fill an empty seat in his last term and republicans jam through any conybeare barrett's a no opponents of abortion rights. And and the democratic party. There were a couple of people who really did site. And i was grateful to them for it but by and large the democratic party. Sort of let this happen without saying this is without saying no. This is a travesty. This works this is this is a horror show. This is what's going to happen. Here are the things that it's it's abortion is voting right. this is the environment. It's the planet without saying those things as boldly as they should have been saying. They didn't fight. They didn't fight and at the end of it. You have all these people watching me watching my jaw on the floor thinking. I can't believe this is happening. And they and feinstein democrat. Reaches over and congratulates lindsey graham on the best smoothest confirmation hearings in her memory. That's gas waiting to. That's doing all the people who are watching this thinking. Oh my god seeing the future. And i'm seeing our systems. Our government or government our planet unraveling here in front of me on the television and democratic senator. If congratulating republican senator on comedy and and you know the smooth operation of the system that's gasoline in lighting to just as much as ten passes. I i would like to bring this back to another era Pre barack obama at a time. In which i think there is value in being a introspective and retrospective about this and he can't divorced this time from the nineteen eighties and the perfect storm. Of mass incarceration the a attempts and success and villain izing black women as as Crack moms who would have crack babies and during that time they rise The surveillance and stocking of black women kind of lia fide redone over in their pregnancies The ways in which news media then to you know went you wards where there were premature babies who were acting as premature babies. Do they shakes. They cry wyoming. Those baby is saying these are the crack babies and then the articles that were published in the wall street journal the new york times washington post rolling stones that if we were to read those articles day. We'd say what racism what white supremacy baked in to. What is reported the claims that these would be Children who would grow up would be unedu- qabail that these would be kids who have distorted genitalia quite literally. These articles like that being said that they would be brain defected if easily would be would bring weapons to school and kindergarten. Teachers would have to watch out for them. Claims that there would be hundreds of thousands of them. Boring based on no evidence whatsoever the blacklisting of people researchers lake dr clear kohl's at emory hallam. Heard at penn who were writing saying you know we've been doing this research on maternal feeder fetal interfaces on cocaine with cracked with tobacco alcoholic. We do not see what you're saying. And eventually they were shut out from being quoted in stories. The race of this story is really important. Because this all has been built on the surveillance stocking the criminalization the civil punishments of black women and the failure to recognize that the very earliest attempts then and of course we could say the earliest attempts during slavery. Where we just kind of normalize like women have no control over their reproductive autonomy in the nineteen eighties when prosecutors began to say well. We can use existing child abuse statutes to come after you And to say that a fetus is a child in that way and the failure to mount the case cases then which were basically person hood kinds of measures that prosecutors were kind of taking on their own do or other kinds of attempts by saying that black women were trafficking drugs to their fetuses and using existing the drug laws against black women and that way or states like wisconsin admitted minnesota that enacted euphemistic crack. Baby bama laws that allowed for the civil confinement of any pregnant Person at the time pregnant women based on the on any doctor or medical providers claim that somehow she was a threat to her feet are all the things that were going on with. Black women being arrested and charged with murder for having miscarriages and stillbirths. And where were the movements. It said we have to attack that there should be no arrest of a person like really was fifteen years old when pregnant sixteen years old when she had a stillbirth and charged in mississippi with depraved heart murder because he had a silver right. These were the things of the eighties in the nineties. That really should have been paid attention to that served as a successful foundation. You can see that okay. We can get through prosecuting. These women on all sorts of matters related to their conduct and feed. What more can we do and so. I think that we would be remiss if we didn't pay attention to that time as well as being important to the current discourse dialogue. I couldn't agree more. And i think you're so right. Michelle to start the clock before we initially started the clock. Because it was another part of our sleep fullness to coin rebecca's word that she coined that none of that gets filtered into how We thought about these issues. And you've written so eloquently about the michelle. I guess. I did want to hear from you for a minute about just because you rate so often and so frequently about women in their bodies and maternal health and miscarriage an abortion. What you think comes next. I mean we're looking at a raft of states. I sent both of you florida's already talking about passing a copycat law. We're going to see a whole bunch of red states. I was suspect within days passing copycat laws. Tell us michelle permanent. What it's going to be like on the ground are we simply going to look at a world. In which if you are in mississippi if you're in texas florida you literally have on paper a right to abortion post roe v wade that you cannot access. Well that's right. I mean you spotted it a right to abortion that's more illusory than real and let's understand that these are a number of play books on that have been holland over time. So if you were to think about eugenics in the united states when the state of virginia's eugenics law goes up before the united states supreme court 1927 buckley bell. I mean it's done as a test case right in some ways one could look at this as a test case that successful. And what does it do it means. Then that are a number of states. After that enact eugenics laws it becomes like a model law. Much of what's been done is to test out what who'd become model laws and so yes. We will see those copycat laws because we also see that. The supreme court was sending a signal by its failure to act its action that was also a failure to act was in fact a very powerful and strong signal from the most powerful tower that there is in the land about the broken of this aspect of our democracy when it comes to upholding the types of laws and constitutional protections that will aid women in the furtherance of their will wellbeing of their health of their privacy of their autonomy. And we've seen that time and again and it's important that we understand that going bright back to what was said in that to the extent that there would be people who would say. Well this is just simply alarmism. This extremism to compare this to historical moments in the past. No it's not. It's that those historical moments in the past were in fact extreme. It's not our articulation of them. That's extreme. it's just that it is unfortunate and sad and horrific that we are in a country that would have fugitive slave laws that we are in a country that would have eugenics laws and that now we are in a country where roe v wade could be up ended in the way that it did in the supreme court would claim that it had no choice but to do what it did and now let's return to our emergency extra amicus podcast that we're bringing to you in the wake of the supreme court shadow duck decision to effectively overturn roe v wade at least in texas with professor michelle goodwin and rebecca trickster and rebecca because this has been so desperately hopeless. I guess i want to ask you and maybe this is gonna be an even more depressing answer but now we have president biden saying he's launching quote a whole government effort to see how the federal government can respond to texas. And i guess. I'm wondering i mean i know you think about this harder than most people i is there. A whole government effort to be brought to bear. Is there a master plan. That i don't know about that. You can share with us. Yeah no. I know the master plan. I know the master-plan expand the court. Yeah that's that seems to be the effort at the plant no. I don't think that's fun plans. And i'm livid about it I don't you know there's this and again like there's been this unwillingness to actually address that it would be too much. That would be over the top one of the things that i listened to michelle talk and think about the history and think about how in so many ways the structure of this particular super weird law reverts to like such an old american norm right like where our economy was built on the economic element of this. The payoff yes. Vigilantism the fugitive slave law slavery itself. Where the country's very underpinnings its economy. It's government everything is built on this institution that relies on controlling black women reproduction. Right the production of of enslaved bodies and limiting the autonomy of enslaved women and more broadly You know a country that was built on limiting women's civic participation including white women's civic participation and them the vote for very long time This is what the country is made and in fact one of the things that's happened over the past century and a half is that there have been these enormous long movements that have in some cases resulted in increased protections than freedom right some of them judicial some of them supreme court decision roe v. Wade some of them legislative changes that have built better laws and expanded pre didn't but the fact that they did. This is like this way that they can get around and going back revert to the nor right revert to the founding principles of this country Built unrestricted liberty and inequalities from which people will profit some people profit and some people will pay right. That's that's what this is even though there's probably going to be more strict version of it coming in certain months right was the same thing hopes rebecca. You're cutting out. We'll we'll try to Maybe rebecca we can retake the one thing you just said i have. I have one thing and we're going to be pulling out here. I'm not keeping them any longer. But i would only say that there is something extra neem an extra ho athletically american in the worst cents about the work around when they could just a could have straightforwardly overturned the judicial protection that you know people work toward over decades the century to gain protected rights to abortion care. They could have just frontally reverse that but instead they chose to do this for profit thing that hearkens back to like to as michelle said fugitive slave laws to To the ways in which people could profit off of the surveillance and policing of of women's bodies of pregnant bodies In this really nasty visceral punitive way. They didn't do it. The official way right they they will they will do with the official but in this case they did it with bounty hunters and money. Payoffs that takes takes us right back to the founding to the foundations of this country and its economy and and it's government on the surveillance patrolling enslavement of people. The denying the denial of rights to bodily autonomy or civic participation to women And the fact that they chose to do it this way is just there's an ugliness about it that takes sh straight back to the beginning michelle. I just want to give you a chance. Because i know your inbox is flooded. Rebecca's flooded minus flooded by women. Saying what can i do. What's to be done. I would answer that on multiple fronts. I'm the first is to understand the political economics behind this and the importance of political empowerment the texas legislature has so gerrymandered voting rights in that state. That essentially what they've done is to create a a recreate a pattern of voting for those were of most economic means and sophistication et cetera. To be able to access the right to vote. Which means that on one level. It's really hard to vote these people out of office but that is really what is important here. The texas legislature does not represent the demographics of the state is overwhelmingly white and it is overwhelmingly male. So there needs to be greater balance in the texas legislature so the political process the politically calming process is incredibly important. And that requires resources. It requires information. It requires a certain sense of indefatigible in making sure that people are able to access the right the vote but also able to run for office. And so that's important. It's also important to understand that this may be kind of long arc of work to be done notice that those who are in the majority on the supreme court in the shadow docket opinion. Three of those are trump appointed Justices which means they're not going anywhere soon so it's important also not lose hope in this but it may be a fight for the long haul and not something that is just simply instant but it does mean greater resources being provided to help support people who are in texas who will be harmed by this law because they will have an immediate needs and that includes for some of them. It's already happening that they're going out of state in order to access abortion rights. Now that is something that may have a little impact on people who are wealthier and of means to be able to get up and go but for poor people. People who are working class been data is a huge barrier to being able to have the effective healthcare that they want so support in that way is also critically important. And then lastly and there's so much more we could write whole books on those in terms of what we need to do is important to understand that this is part of a national network of movement. And it's not the last that we will see and taxes because they're already gearing up for additional laws to be presented in the state legislature and for the governor to be able to sign. It's important to understand that that will serve as basically it is serving as an incubator for other states so those who are in other states that worry about this coming to a movie theater near them. It's important to pay attention and try to make sure that law such as this do not get enacted in their states that means voting that means being part of the political process That means putting more women in office and it also means being very mindful about the judicial process to many of the local state courts are one where people actually have to run for office and we have to think about this as not just being involved in the political process as it relates to who will serve on a legislative bodies but it also means being mindful about the people who are running to serve as judges In those states is well and people need to be mindful about that in texas and also in these other states because of law itself is written in a kind of way to make it very hard presumably for someone to actually seek some remedy from a federal court and yet that they would have to lean in into or file litigation that would be heard at the state court level while i disagree with that and certainly believe that the supreme court could have issued an injunction in this case it still raises an important matter with regard to who served on stage court and add one other thing too that too when we're thinking about elections people running for office and things like that is that every level a governing needs more. Women need more women of color and so every effort that can be made to make sure that every space including school boards that will determine whether sex education is taught in. Schools are not all of those places all of those institutions need greater diversity and representation and they simply don't have them edit startling at alarming and states like texas mississippi alabama etc. So i'm thank both of you for taking time out of your respective days. Michelle is in a hotel room. Rebecca is quite literally stopped on the side of a highway with her kids and pets in the car. I know you are both unbelievably busy. But you were precisely the two people. I most needed to hear from today and as expected you both utterly broadened and deepened my understanding of what took place at the court this week. Michelle goodwin is chancellor's professor of law and director of the center for biotechnology in global health policy at uc irvine school of law. Her book policing the womb came out last year from cambridge university. Press and rebecca traced. Her is a writer at large for new york magazine. She has written about women from a feminist perspective for the new republic l. salon. She's contributed to the nation the new york observer the new york times and the washington post. She's the author of all the single ladies. The award-winning be girls. Don't cry and most recently of good and mad both michelle and rebecca. Thank you very very much. I needed to hear your voices today. Which means there are. A lot of women did to thanks for joining. Thank you dahlia. Thank you to both of you. That's a wrap for this episode of amicus. Thank you so much for listening. And thank you so much for all your letters and your questions. You can always keep in touch with us at amicus at slate dot com or find us at facebook dot com slash amicus podcast. Today's show was produced by saw birmingham. Gabriel roth is editorial director. Alicia montgomery is executive producer and june. Thomas is senior managing producer of slate. Podcasts we will be back with another episode of amicus next week till then hang on there.

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