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August 22, 2022
Strict Scrutiny
What the Fight After Roe Actually Looks Like

In This Episode

Somehow, it’s only been less than two months since the Supreme Court overruled Roe v. Wade with their decision in Dobbs v. Jackson Women’s Health Organization. But A LOT has happened since then. To further examine the fall-out, we assembled a stellar crew to help us get the lay of the post-Roe land: journalist Rebecca Traister, health law expert Michele Goodwin, and U.S. Congressman Mondaire Jones.

 

TRANSCRIPT

 

 

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when I argue a man argues against two beautiful ladies like this, they’re going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.

 

Melissa Murray I’m Melissa Murray.

 

Leah Litman And I’m Leah Litman.

 

Melissa Murray This past Supreme Court term was truly one of the most consequential and significant in our lifetimes. The decision overruling Roe versus Wade had an immediate and profound impact on people’s freedom, their autonomy, and, of course, their lives. We have talked a lot about Dobbs, but that’s because there is so much to say about this decision. And we don’t want to lose sight of the consequences and the impact of that decision with time. So we’re here for a special summer episode with continued coverage about Dobbs and the many issues surrounding the case and intersecting with it and of course, its aftermath.

 

Leah Litman And I’ll be honest, this issue and the fallout from the decision is really quite bleak and has at various points just kind of gutted me. And so I needed to find a way to bring myself back or at least get myself into a headspace where I could discuss the decision without either totally breaking down or needing to flee the country again. I went to France and ate a lot of pastries, and so we assembled a group of the most wonderful and most brilliant people who we would most want to talk to. And I am so excited to talk to them. It will overcome the creeping feelings of foreboding doom, terror and sadness that usually accompany me when I think about Dobbs. So with that, we are delighted to be joined by first Michele Goodwin. Professor Goodwin is a Chancellor’s Professor at the University of California, Irvine and founding director of the Center for Biotechnology and Global Health Policy. She has published constitutional law pieces in the Harvard Law Review, California Law Review and many other journals. She has been a leader in creating the Field of health law and is the author of the 2020 book Policing the Womb Invisible Women and the Criminalization of Motherhood. She’s also the host of the Ms.. Magazine podcast on the Issues. Welcome to the show, Michele.

 

Michele Goodwin Thank you so much. It is such a delight to be with you all.

 

Kate Shaw And as our second guest, we are delighted to be joined by Representative Mondaire Jones. Representative Jones is a leading progressive member of Congress who is currently running for reelection in New York’s newly drawn 10th District. Representative Jones made history when he was sworn in on January 3rd, 2021, as the nation’s first openly gay black member of Congress. During his time in office, Representative Jones has championed democracy, reform, civil rights, childcare and climate, among other issues. He has also voted in support of LGBTQ rights, gun violence prevention and police reform. Representative Jones, welcome to the podcast. It is such an honor to have you with us.

 

Mondaire Jones It’s an honor to be on the show, and I’m so thrilled to be joined by so many folks who I’ve admired for so long.

 

Leah Litman And in New York, ten voters out there get out and support Representative Jones for Congress. I would move to New York. Me, a Midwesterner, for Representative Jones to be my congressional representative.

 

Mondaire Jones Thank you.

 

Kate Shaw Having me and what’s in town is not enough to get here to New York, but this.

 

Leah Litman This Would be the trifecta.

 

Kate Shaw Okay. Okay, we got it.We know where your heart is, Leah. That’s terrific.

 

Melissa Murray Finally, last but not least, is Rebecca Traister, who is a writer for New York magazine and the author of several books, including one of our favorites, Good and Mad. Another, All the Single Ladies and Big Girls Don’t Cry. Her writing has also been published in the New York Times, Vogue and The Washington Post, and she focuses on feminist politics and has covered the post jobs landscape for New York magazine. So welcome to you, Rebecca, and everyone else.

 

Rebecca Traister I am so happy to be here with this group, if not happy to be here having this conversation.

 

Kate Shaw Well put.

 

Melissa Murray We were on such a good roll this summer. We were having like a not Bleak Girls summer, and now we’re back again. Or we’re back to being bleak. But it’s great to be back with all of you.

 

Leah Litman We are going to try and cover a few big themes or issues today. First is the dystopian existence that Dobbs has created. The second is the possible implications of the Dobbs decision for other constitutional fundamental rights. Third, a recurring topic Why is Justice Alito still so angry? And last but not least, what to do about all of this, how to cope while also staying engaged to protect reproductive freedom and other fundamental rights.

 

Melissa Murray All right. So let’s make like Leonard Leo and check some things off of our to do list. First up, our dystopian existence, a.k.a. careening toward Gilead. So there have been a number of reports about the implications of Dobbs and the abortion bans that have been implemented in the wake of jobs for miscarriage care. And, you know, this is not something that the majority opinion really focused on the fallout of this decision on people who are pregnant and lose pregnancies. So, Michel, can you give us a sense about how the vagueness of Dobbs and other abortion ban statutes have contributed to? The sort of uneven landscape for those who are experiencing miscarriages all across the country.

 

Michele Goodwin Well, it’s really a tragedy. It’s a tragedy that was previewed in the leaked draft opinion, which was a story, but clearly not the story. The manner in which the court paid so little attention to maternal mortality, though it’s a glaring reality in the United States, where we are the leader amongst in deaths in the industrialized world in the highest rates of maternal mortality. You know, it’s horrific when, you know, it’s safer to give birth in a country where women are still publicly stoned and lashed than it is in the United States. And, of course, none of that changed after Dobbs. So even though the Supreme Court paid very little attention to it, in Dobbs speaking about maternal mortality only in a paragraph related to Roe. So not even something contemporary. But now we begin to see the fallout. It existed beforehand. That is to say that all of that was quite relevant for the Supreme Court to pay attention to. But in the space since Dobbs, as you mentioned, Melissa, we have a very uneven landscape. And in this uneven landscape, there are, in some cases, aggressive DAs, prosecutors who are threatening arrest of medical providers, such that this has created a chilling effect. In Wisconsin, a woman bleeding more than ten days after having an incomplete miscarriage because doctors feared how they might be investigated or the potential for losing their licenses or anything else in the wake of providing what would be standard medical health care that they are otherwise obligated to provide. And in this deeply uneven landscape, you have providers who are afraid to provide the care that they would otherwise like to need to. We had the federal government saying that while EMTALA the Emergency Medical Treatment and Labor Act should apply to these cases such that doctors should in fact provide the care that patients need right away. But, you know, so much of this is local, right, that we know that federal law trumps. But, you know, people are concerned about what local regulations, local laws may mean in terms of the ability to be able to practice medicine.

 

Melissa Murray Can we back up just slightly? There may be listeners out there who actually don’t know this aspect of reproductive health care, but, you know, often miscarriages are, you know, when you lose a pregnancy and sometimes the body expels the remains of the pregnancy spontaneously, but quite often the remains of the pregnancy continue to exist in the uterus, and it can cause the pregnant person a lot of physical harm, certainly discomfort. But if the remains remain too long, you can actually become septic and your blood will be poisoned and you will die. And so for many miscarriages, the appropriate treatment is, in fact a D and C, dilation and curettage, which is the removal of those remains from the uterus. And so that’s an abortion. I mean, that’s the D&C is the same procedure that is used in an abortion. And the question is, if abortion is banned, can you still perform the D&C? And then there are also other questions like, you know, what if the fetus is compromised but still has a heartbeat? And so there are a lot of questions about pregnancies that go wrong and questions about miscarriage management.

 

Michele Goodwin That’s right. I mean, look, the backdrop of this is that for millennia there have been miscarriages and stillbirths. And that didn’t change because of Dobbs before or after. And you’re absolutely right, in terms of the evacuation of the uterus as being the standard medical procedure that takes place after an incomplete miscarriage, which is that not all miscarriages will result in the removal of the fetus on its own without medical intervention. And so the real, you know, sort of tragedy of the post Dobbs Reality is that you have lawmakers that are intervening in spaces where they they shouldn’t be and where they can’t be intimately involved and where one really needs the consultation of medical providers to understand what exactly to do in those spaces. So you’re right, it’s an abortion. But, you know, there’s a lot of euphemism that’s used in this space, right? With, you know, in the space of assisted reproductive technology, it’s called selective reduction. But selective reduction is is abortion. Right? I mean, so there’s so many euphemisms in these particular spaces. And what’s most worrying is that now with this particular landscape that we’re confronting there, there are time limits on when one can actually have an abortion. There are doctors who fear by doing these procedures that they could, you know, be subject to investigation and criminal punishment and so much more. And it’s a hot mess. I mean, it’s just a. An incredibly hot mess. And it’s horrific for people who are suffering through the pain and risk of death in these spaces.

 

Leah Litman Just to underscore how this intersects with the equal protection issue in Dobbs know, Justice Alito’s opinion rejected the idea that access to abortion was integral or fundamental to women’s equal participation in society. But as a result of endangering, you know, health care, reproductive health care in these circumstances, what these abortion bans force people to do is basically plead for their lives and go to doctors and say, I am really sick. And then they force doctors to ask, like, how close to death does this person have to be before I can provide them care, which is extremely dehumanizing, in addition to endangering their health and lives?

 

Kate Shaw Right. And a punctuation mark on that  Leah. I mean, that is that, of course, is part of the real tragedy. How near death do you need to be? How much suffering does one need to encounter? And when we add on to this, the layers that again, preexisted Dobbs, Right. So socioeconomic inequalities in society, racial injustice in society, racial profiling. So the people who very likely will end up having to suffer the most or be the nearest towards death will be those who already have very vulnerable statuses already in these states. And that to me strikes me as something that pulls from the playbook that the pages of history in the United States. Right. You know, this this kind of way in which we’ve been so used to the pornography of pain of certain communities in the United States, which is deeply disturbing.

 

Rebecca Traister So much about the dystopian nature of this first wave, this first post. Dobbs wave of stories and coverage and the sort of blinding wake up of how dystopian so many of these these initial stories are. So it’s got me thinking so much about, as Michel said, pre Dobbs life right life under Roe and the kind of work that we didn’t do at that point. And I’ve been I’ve been thinking a lot this summer about a phrase that I uttered and a lot of other people uttered, maybe familiar here, that Roe was supposed to be the floor, not the ceiling. Right. That those who were critiquing the political and movement work done while Roe stood were often saying, look, this wasn’t supposed to be the end goal. This should have been the bottom. I’ve been thinking a lot about the work that wasn’t done by mainstream in a mainstream Democratic Party, by by mainstream media to cover the kinds of things that Michele is covering in her books, that Dorothy Roberts is covering in Killing The Black Body, that a reproductive that didn’t adopt a reproductive justice framework that helped us understand the intersections of so many of these conditions are terrible maternal mortality rates, especially in black and brown and immigrant communities. How issues of housing policy and and incarceration combined with reproductive rights and justice. Right. How all of these things come together. We didn’t fight for the humanity of people who require reproductive care and health care. We didn’t make the necessary arguments about life and family and the dignity of people who want to be able to make choices about whether, how and under what conditions to become pregnant or carry pregnancies. Right. We didn’t do that work. And here we are at a moment where the floor has been taken away. And so we are fighting not just to get the floor back. In some cases, we’re fighting for like the subbasement here. Like Michele just said the word, how near dead do you need to be to get this care? Right. That is the conversation we are having here in the summer of 2022, because we failed to have a conversation about the dignity, rights and humanity of people in overburdened and under-resourced communities in the years that Roe stood. And that’s something that I think we really need to reflect on as we move forward, because there’s no doubt that we have to have these fights for the subbasement. Right. We are going to be in a position we’re going to where we’re going to be fighting for. Can we have a six week ban rather than a conception ban? You know, like can that woman who is septic get the care she needs before she dies? Yay! Like these these victories are so grim. Okay, but we cannot lose sight in our fight to get those meager, horrifying victories of what needs to the lessons we should have learned from the past 50 years about our failures to fight bigger and for real, real human rights when we had a floor to stand on.

 

Melissa Murray In the interest of just correcting some misinformation, there has been an attempt to kind of put some space between these horrific consequences and the denial of care to people who are in real life endangered situations. And the abortion ban, as you know, with numerous commentators on the right, insisting that actually all of these life threatening situations are not because of restrictive abortion laws and arguing that this is just like part of a campaign to discredit abortion bans. But, you know, it is important to understand that laws, abortion bans don’t necessarily have to explicitly outlaw a procedure in order to make that procedure. Are unavailable when it’s actually needed, in part because of the fervor of the anti-abortion movement. We saw the vitriol directed at the Indiana doctor when she provided a legal abortion. We have seen laws outsourcing the enforcement of abortion bans to private citizens. We have seen other laws allowing state officers or other attorneys general to step in if a local district attorney won’t prosecute. And so the specter of criminal enforcement isn’t tenable for doctors when they are trying to make a life or health determination. Give in again the fervor and intensity of the criminalization movement.

 

Leah Litman Can I jump in to ask a question of you, Representative Jones? Actually, first, the first question is, can I call you Mondaire? Is that okay? Is that allowed? Is that. Okay.

 

Mondaire Jones Yes. Please call me Mondaire. My constituents call me Mondaire.

 

Leah Litman It feels both subversive and illicit and I like it. So Mondaire, here’s a question about New York. And in returning the question of abortion to the states, Justice Alito was at great pains to say that, you know, every jurisdiction will get to decide this according to the preferences of the constituents. And New York is very obviously a blue state, and it has taken steps to codify in state constitutional law protections for reproductive rights. But does that mean that folks in New York are sort of okay now? Like, do people in New York need to be worried? And as someone who represents the voters of New York. Are you working overtime now to sort of shore up things even here in the Empire State.

 

Mondaire Jones Even before the decision involves, people who were pregnant faced obstacles to accessing necessary reproductive care. Many of the inequities that have already been described in this episode preexisted the Dobbs decision, whether it is an inability to take time off from work, to obtain the kind of medical procedures that we are discussing, or the financial disadvantages faced by many predominantly black and brown pregnant people in our society to say nothing of a system that is now even more burdened than it was before Dobbs. A system that now has to accommodate people seeking refuge from other states whose laws are not as protective of what was until recently, a fundamental right to reproductive health care. My project, along with many of my colleagues, is, of course, to increase the funding for organizations like Planned Parenthood and to make sure that at the state and local level, my counterparts are not overlooking loopholes or gaps that may exist that would make it more difficult to obtain the necessary reproductive care that we are talking about. And then, of course, at the federal level, finally enshrining through federal statute the fundamental right to an abortion, along with other fundamental rights that, Justice Thomas so graciously previewed for us, are now on the chopping block in his concurring opinion in Dobbs.

 

Leah Litman Well, Mondaire, he only concurred for himself. No one joined him. So this is a really off the wall idea. No one needs to be worried about it. They’re not calling for gay marriage, as we’ve been told by many, many, many distinguished and learned men.

 

Mondaire Jones The same people who said that this six three majority would not overrule Roe v Wade.

 

Leah Litman I mean one can make a mistake, Mondaire anyone can make a mistake.

 

Melissa Murray And then never admit it, never owned up to it. Just deny, deny, deny. Who among us could have predicted this was it?

 

Mondaire Jones Has anyone checked in on Noah Feldman.

 

Leah Litman Coming in hot from the tenth district. Okay. Okay.

 

Kate Shaw I do want to just underscore the first thing that you said there. I guess I’ll try out Mondaire.

 

Leah Litman Doesn’t it feel subversive?

 

Kate Shaw It does. The first thing I think is just so important, because two things can simultaneously be true. Everything that Rebecca and Michele were saying at the outset about the incredibly disproportionate impact that this decision and the denial of care will have for low income women and women of color and women who are already struggling to support children. All of that is true. And it is also true that every single one of us is affected in a deeply personal and material way by this new legal landscape. So I do think it’s a mistake to suggest for anyone to suggest that anyone is outside of the reach of this decision and this new world, whether it’s because existing facilities in states like New York are strained because of out-of-state care seekers or because of family members or friends or travel during which a miscarriage that requires management occurs in a state that has a ban or near ban, like all of us have skin in the game in terms of this post jobs landscape. And I actually think there’s a really important kind of solid touristic power in repeatedly acknowledging that, like, we’re all affected.

 

Rebecca Traister I just want to make one small point, which is that I think that we’ve come to see states that have good, relatively good abortion laws at this point as somehow being a gold standard. Those laws need to get better, in part because what we’re looking at like really better. Because if you think about it from the allocation of funds standpoint, who are the people who are doing the work of getting abortion to care to people who require it and aren’t able to access it? It’s abortion funds, right? And even in blue states, abortion funds are still doing the work of getting certain people out of those states, often in crisis situations later pregnancy later needs for later abortions that require a lot more money. Right. So it might cost 10,000 or $20,000 to help a person in a blue state with a but. But that money, if that blue state had better, stronger abortion laws, could be spent on getting ten people out of a state with a conception abortion ban, where the procedure is quick and relatively inexpensive. So there are actual economic concerns that I think produce a really compelling argument that states with good abortion laws need to make those laws even more expansive to free up funds to help other people in other states. That’s my little plug for that aspect of the argument.

 

Kate Shaw I think that’s a really important point. So there are a few more things we want to hit in terms of the really immediate post Dobbs fallout. And I think we would be remiss if we didn’t highlight the consequences of some of these new bans or really restrictive laws on minors, on victims of rape and incest. Leah already mentioned this high profile case involving an Ohio minor who had been the victim of rape, who sought an abortion in Indiana after being unable to obtain one in Ohio. That was also subject to some of the kind of right wing spin campaign, that Leah referenced with efforts to discredit this story, which, you know, was later fully confirmed. More recently, a Florida judge and then appeals court rejected a 16 year old’s request for a parental notification bypass on the grounds that the 16 year old was not mature enough to choose abortion, but obviously was implicitly mature enough to deliver and then potentially parent a child. Our listeners may be familiar with these stories. I know there are so many more stories that are going untold. So I guess maybe a journalistic question for you, Rebecca, which is twofold. One, how do we keep up the momentum of reporting on the horrific reality of what these abortion bans mean in these kinds of circumstances? How can people help bring these stories to the attention of journalists reporting on this issue? I mean, as heartbreaking and enraging as these stories are, it feels really critical for the public to understand what the Supreme Court and, you know, state political actors have unleashed here. So there’s a lot we don’t know. And how can we continue to learn as all of this continues to happen?

 

Rebecca Traister This is such a hard question, because you’re absolutely right that the question of how to keep up this level of coverage from inside journalism is a pretty bleak one to look at, because we know we live in a world at this point in which we are becoming ever more inured to all kinds of horror. That doesn’t get the kind of news media attention that it needs. And beyond stories about abortion bans, we are like we live in a world in which major wildfires and mass shootings and police killings, right. Like of unarmed civilians, don’t manage to catch a six hour news cycle anymore. Right. And I work in a business where I know that a line is, well, we just ran a story like that last month. So we’re not you know, come on, we’re not going to run that same story again. Right. I live in that world. I work in that world. You know, I can’t I can’t chart a path that offers a great solution. But I can say a couple of things. There is an economy here. And so and it’s an economy of eyeballs, shares, conversation and insistence on there being an audience for this. And this is true, I would say, beyond journalism. It’s also true in Democratic politics. Right. Like you can look at how this happened after the Kansas referendum man Joe Biden, who’d had trouble saying abortion for his entire life. I thought he was going to perform one on Twitter like there was an enthusiasm after Kansas where suddenly we wanted to talk a lot about abortion. Okay. Consider that there is a similar dynamic in journalism. And one of the things that those of us who read coverage that we feel is important, I don’t even want to say coverage we like. We’re not going to like any of this. Right. But reporting and analysis that illuminates this issue, that tell stories that are crucial. Read that and then send it to your friends post it on social media. Talk about it on your podcasts, right, because you want to create readership. I heard so many people in including people in cable news tell me after SB8 in Texas say, well, you know, I did a. Story on that and not enough people read it. Right. And that was, I think, the fact that there wasn’t a perceived audience for stories about abortion bans probably came from wishful thinking of people being like, Oh, that’s not going to happen to me, right? Some of the dynamics we were talking about earlier, this sense that, oh, that’s going to happen to a different set of people and therefore I don’t have to pay attention or or just weird like denial stuff. Okay. But what we have to do is create incentives for journalism to continue to do this coverage, and that involves remaining engaged with the coverage ourselves as readers and people talking about it. But I also want to acknowledge that, as with all these, when we talk about climate, when we talk about police brutality, when we talk about all of these horrors facing us, there are going to be moments where the coverage just falls off, where people stop writing about it in the way that they have been through the summer. And I want to stress for that that this is going to be a long term problem, right? This is going to be a long term reality. It has been a long term reality over millennia. Right. Are fights over how to control people’s ability to reproduce and make choices about reproduction. And part of the stories, some of the stories and the data we’re going to get aren’t just from newspapers. As to your point, Kate, you made about everybody being touched by this, a lot of these stories are going to start coming to us through our families and our communities and our friends and our aunts and our mothers and our fathers and our brothers and our sisters. And there’s going to be an accumulation of narrative that is going to happen over generations. And it took generations to get to Roe. It’s going to be generations through this fight. Right. And through that, there will be also very specific fights for coverage of this issue, coverage of this circumstance, coverage of this law and this ban. And we do have to be participants, both as producers and consumers of media. But I also want to stress it that these stories, given the circumstances right now, aren’t going to become invisible to us, even in the moments when they fall out of the newspapers and off of television, because this is a reality that is going to be around us in various ways and to various degrees, again, obviously more intensely and more frequently in black and brown and poor and rural communities, as has been true over decades, even before Dobbs, but in all of our communities in coming years.

 

Leah Litman <A.D.>.

 

Melissa Murray One of the issues in Dobbs that Mississippi raised repeatedly was that they were promulgating this 15 week ban for the purpose of promoting women’s health. But yet, Mississippi has one of the worst records in the United States. And Michele has already highlighted how the United States already has a pretty poor record of maternal mortality. But even within the United States, Mississippi’s record of maternal mortality is even worse. And it’s really hard for Mississippi to sort of make this claim about promoting women’s health when it has such a poor record and where it has failed. Even when federal funds were available to do things like expand Medicaid or provide funds for temporary aid for needy families, it refused to do so. And so it has not done a lot to promote women’s health beyond banning abortion at 15 weeks. And so, you know, question for you, Mondaire. From a political angle, Republicans love this idea about abortion bans as reflecting their deep seated concern for mothers and children. But if you surface the record, there’s not a lot of really tangible supports for mothers and their children in the Republican platform I’ve seen over the last year, Republicans talking a lot about eugenics and how much they care about how black babies are being aborted. But many of them can’t even vote for Juneteenth to be a national holiday, which is literally the least you could do to acknowledge black people in this country. So why is this messaging so pervasive when it’s so easy to scratch the surface and see how thin the commitment to women and children and people of color actually is?

 

Mondaire Jones You’re absolutely right. And I think the answer to why is so pervasive is that Democrats and people of good conscience have not done enough to expose the lie. It is not helpful that you’ve got a disinformation machine known as Fox News that will tell you that up is down and down is up, completely divorced from what is happening on the ground and what reality is with respect to any number of situations, you’d never know from Fox News, for example, that Republicans oppose universal child care while claiming to care about the life of American children. You’d never know that 195 of my House Republican colleagues voted against the Right to Contraception Act, which would enshrine the fundamental right to contraception under federal statutory law. They voted against making infant formula more available to people in the midst of a supply shortage and of course, continue to oppose making health care available to every person in America. These things expose the lie that Republicans actually care about infant health or the health of any human being in our society while opposing, of course, reproductive health care. There’s something else in the opinion that bothers me that I think is relevant here, and that is this really false narrative that somehow the states can provide relief to electorates around the country who want to see their rights vindicated. These are the same people who are suppressing the fundamental right to vote in state after state, whether it is Georgia, Arizona, Texas or Florida. Thank God for the results of the referendum in Kansas, but it didn’t have to go that way because of a sustained effort to disenfranchize the same communities that bear the brunt of these abortion bans and other restrictions that we are seeing proliferate throughout red states, in particular in this country. And so I think what we are seeing here is a project and anti-democratic project by an unaccountable far right institution, an increasingly hyper partizan institution called the Supreme Court of the United States. Which is why one of my projects since being a member of Congress, has been to rein in the power of that court, whether it is through expansion to protect fundamental rights or through limiting the jurisdiction of the court, which is something I recently tried to do as part of, unfortunately, an unsuccessful effort to insert provisions in the Women’s Health Protection Act intended to codify Roe v Wade or my bill with Jerry Nadler called the Respect for Marriage Act to deprive the Supreme Court of the ability to review causes of action arising under those statutes. Most people don’t know that most of the cases decided by the Supreme Court, that court is only able to decide because Congress has specifically legislated jurisdiction to the court to do precisely that. We can channel jurisdiction to humane think reasonable courts like the D.C. Circuit as it is currently composed in order to resolve questions of. Fundamental rights, but it is clear that this 6-3 majority is not where we want people to decide whether folks have the fundamental right to abortion, contraception, marriage equality and so much more.

 

Michele Goodwin Melissa, I would love to jump in on that, if I might, with the question that you asked. And it does feel subversive to call you Mondaire, but I’d love to build off of what it is that you just offerred. And that is the Mississippi law did not go into effect after it had been signed by the governor because there was an injunction. Right. So was a law on the books that basically the Supreme Court took up after as a challenge to what had been the injunction that blocked the law from going into effect. And Judge Carlton Reeves, a district court judge, a federal district court judge, wrote what was really a quite profound ruling in that case, basically taking on Mississippi as it claimed that the law was about protecting the health and safety of women in that state. And the footnotes are even profound in that ruling, as he talked about, you know, Mississippi, how could you? And he recalls Fannie Lou Hamer and writes about the horrific way in which black women were sterilized in that state as part of the Mississippi campaign, otherwise known as the Mississippi Appendectomies. These took place in other parts of the south, too, but where black girls, black women, often unknowing they had been coercively sterilized. This is a state that when we talk about voting rights, Fannie Lou Hamer and a group of black women were dragged off of a bus on their way to vote and then beaten. Fannie Lou Hamer famously spoke about this before a Democratic National Convention, saying all of that just because they refused to be second class citizens and desire the right to vote. We’re talking about a state that the maternal mortality rate for black women is 118 times more likely to die by carrying a pregnancy in that state as a black woman than by having an abortion. Mississippi definitely deserves to be called out on all of that. And it is worth noting that in so many of these states with the most prolific anti abortion lawmaking taking place, these are states that formerly were addicted to, had a strong taste for slavery, enslavement of black men, women and children, states that after that rebounded and imposed Jim Crow kinds of laws. We’re talking about states that have never known or practiced how to be engaged in women’s freedom and equality, certainly not black women’s freedom and equality, safe federal intervention. These are the places that we’re talking about, as Justice Alito says, well, just go vote. You know, Justice Alito save for the federal government having to sometimes literally come in. These are states that would otherwise still be tasting slavery, still would be practicing Jim Crow, and then are not far from the practice of Jim Crow. Even today, with all of the layers of voter suppression that take place and what the knowingly high rates of everything that is awful falling most egregiously in the lives of black and brown people.

 

Melissa Murray We’ve talked a lot about just sort of the practical implications. But there’s also another dimension to returning abortion to the states, which is that many of the states have decided to regulate abortion care through the criminal law. And Michel, it’s almost like you were present and called this when you wrote your book, Policing the Womb. So, you know, we are now seeing the implications of a post Roe world that is increasingly surveilled, increasingly policed and increasingly criminalized. So in Nebraska, a 17 year old and her mother were charged based on Facebook messages. Right. So, I mean, we are literally living in a surveillance state where social media creators are in a position to turn over data to the authorities in order to build cases around the violation of state level abortion law. So, you know, Michele, you wrote a book about this, about the criminalization of motherhood and of women. Can you speak to this new era of digital surveillance, femtech and how it interacts with this new landscape of abortion restrictions that we’ve entered.

 

Michele Goodwin So ironically in a space in which we have multiple sort of things competing at the same time. On one hand, people get messages about keeping themselves healthy and fit, walk a certain number of steps per day, monitor their hearts and whatnot. And what do they use? They they use electronic devices and apps on their phones and their watches, etc., as part of Keep Yourself Well and healthy. Right. And in fact, some of this is even incentivized by their employers and insurance companies and whatnot. Yet on the other hand. We are in an era of deep surveillance that preexisted Dobbs. So for some communities, they were already being surveilled. Police had already practiced this in others in various places with the targeting of black youth, checking Facebook and other social media places to see if black youth were connected with gang activity. So in certain ways, this is just a pivot to another space. But the taste for this, too, is not new. So if we’re looking at the 1980s and nineties, black women were surveilled to an incredibly high degree. Black women who were poor, you know, in the eighties and nineties are ten times more likely to have law enforcement called on them by their medical providers by doing the same exact activities as white women during pregnancies. And oftentimes this was through the use of some illicit drugs. But now we have this kind of geo tracking and geo warrants, we could call them, where law enforcement are in this space of surveillance. And they are seeking this data that people are, you know, either putting into their apps themselves or where their apps are just simply tracking them. And now this information is vulnerable for use with law enforcement, and they’re already doing it, just as Melissa has mentioned in the case involving the mother and the daughter who were in Nebraska and who were using Facebook, and their Facebook posts have become central now to their prosecution in the wake of a self-managed abortion.

 

Kate Shaw Okay. So the dystopia is real. Right. This is, I think, clear from what we’ve discussed so far. We just in order to wrap up the Dystopia section, we feel like we need to mention a really chilling piece of recent reporting by Dana Goldstein at The New York Times about baby drop boxes, which is a phrase that is so dystopic, I almost can’t formulate it. But this is one form that states or localities that have implemented so-called safe haven laws, these laws on which Justice Barrett was really fixated during the Dobbs oral argument. This is one mechanism that some localities have used to implement this idea of a safe haven, and these are like library book drops. But for babies, right places to surrender newborns, some at fire stations, some at police stations, some of them the actual drop boxes are the brainchild of an anti-abortion activist who designed them and their drawers into which an individual wishing to surrender a baby can place the baby. And upon closing the drawer, the drawer locks by design. These then notify the police and the fire station and they have been used. This is not just sci fi, right? They are in place. They haven’t been used a lot. There have been something like 17 actual drops of babies using these drop boxes since 2017 when states first started using them more broadly nationwide, Dana found that there had been something like 115 legal surrenders in 2021. So that is, we should say, in the scope of the number of domestic adoptions annually, which is about 100,000 and abortions annually in recent years, which is about 600,000, 115 surrenders are minuscule. Right. So I think the point here is both that this is a rhetorical device, the existence of these safe haven laws that are that is deployed in debates about abortion and pregnancy, but not actually used. But also there is a group of people that really wants to implement these and is working to design technology and to do it. And I think this is the future that they would like to bring about. And I found the piece absolutely like bone chilling. I see Rebecca has reactions.

 

Rebecca Traister First of all, I do want to underscore that the use of the baby drop boxes is a relatively minuscule thing, but I think it fits in completely with what Mondaire and Michele were just talking about in terms of the other kinds of policies being implemented or or not supported by purportedly pro-life politicians and advocates. We have to challenge the notion of what the value of life and what the valuation of fetal life over all kinds of other life, including the life of babies. Right. What is it mean when you value the fetus so much that you’re willing to endanger the life and well-being of its potential future parent and also when you will deny it formula, food, health care, safe housing, when you are willing to build a box to lock it in when it is born, when you are unwilling to offer its parents the kinds of leave or economic support that could make its its life better, healthier, permit it to thrive. What is that? Why don’t we challenge it? Why doesn’t a mainstream political and media world. Say this. These are lies. This is. This is bullshit. This is not a valuation of life. This is a system of punishment and control and of putting people in boxes where they do not have power, dignity, or the ability to thrive. And that. So that’s what that drop box means. The drop box isn’t just the drop box. The drop box is the formula. The drop box is the is the housing. The drop box is the failure to enact paid leave policies and and make child care affordable and to provide people with the kinds of economic safety nets that would permit them to feed the children that they have or themselves or their parents or their extended family. Right. And and that’s the core of this fight that we are in that will have a million versions of the drop box that locks. And you put your little baby in it. Right. But it is all about the lies that many of us have permitted to proliferate over generations, where we permitted people who wanted to enact control over people’s bodies, the ability to make their arguments using words like life and family and morality. And it was always a lie.

 

Melissa Murray And compounding the kind of lies on which the campaign to restrict both reproductive freedom and voting rights that Mondaire drew attention to before. I mean, it was hard for me not to look at this Dropbox story and think, you know, this is a court and a body of federal courts that think ballot drop boxes are often illegal. But, you know, baby drop boxes are somehow a justification and secure enough to justify forcing people to give childbirth. I mean, that is the dystopia section.

 

Michele Goodwin So in saying with dystopia for just a moment and I think about the work of Fannie Lou Hamer and Fannie Lou Hamer and Pauli Murray and Pauli Murray wrote this book States Laws on Race and Color, which Justice Thurgood Marshall called the Bible of the Civil Rights Movement. Now, this book is nearly 800 pages and it’s single space. And in this book are all of these insane laws that were written after the abolition of slavery. This was the dystopia. We have yet to see how far people are willing to go. I mean, I call this the New Jane Crow. And we’ve seen, again, the playbook before just how depraved people are willing to go to carry out an agenda. So baby drop boxes. Sure. How about during, you know, Jim Crow, if you’re black, you can’t play checkers in the park. You can’t swim in the local pool. Right. And you can’t play billiards. You can’t bowl. I mean, it’s astonishing and strange and absolutely awful. But I think it is worth our remembering that we’ve been here before such that we don’t encounter these spaces in surprise, but rather get beyond the surprise for what all could be coming next. And then we can pivot to what it is that we need to do in our new day.

 

Rebecca Traister And I think that remembering I think it’s so crucial, Michele, what you just said, and it’s fundamental to my own view of how to move forward. We have we’ve lost so much of that history, right? We weren’t we have we have been taught so poorly in this country about how long movements took and the kinds of pain, suffering and injustice that happened while they were in progress. We’re told such neat stories about everything from civil rights movements to to women’s movements, labor movements, gay rights movements, as if they all end with like a, you know, victory and parade and a good law. Right. And of course, like, in reality, once once we begin to get that education for ourselves, we understand that there were generations of people, many of whom worked their entire lives toward addressing injustice and never lived to see even a scrap of the victory that, in fact, their lives made possible somewhere down the road. Right. And I think it is so crucial. To learn some of that history is part of the work. People are always asking like, What can I do? And part of it is just reading, right, or watching documentaries or listening to podcasts or whatever your preferred and easiest mode of getting some of the history that we haven’t been readily taught. And in fact, you know, our curricula are getting ever more constrained. But because I do think it’s part of the step of like, how do we move forward in what feels like this crushing dystopia? To remember that people who came before us have been here and worse before. And the only reason we got to a place where some people were able to live with the illusion that some problem had been fixed. Right. And that was always illusory. Right. But was because generations of people starting in a much worse place, committed to putting one foot in front of the other over a period of often generations, decades, centuries, toward fighting for more justice and and against injustice. And I think that it’s in that context is actually really useful, not just in acknowledging how bad things are and how much worse they can and and likely will get in our lifetimes. But to begin to see our place in history and our responsibility to those who who came before us and certainly to those who are going to come after us to help us understand our work in moving forward and continuing to move forward and not to just be paralyzed or despairing because that is poison and it is a disservice in both directions. Right, to the people who who did not permit themselves to become paralyzed before us and who we have to work for in front of us.

 

Speaker 5 <A.D.>

 

Leah Litman So just in thinking about the possible other implications or what the future might look like, maybe now we can turn to the possible implications for other rights, and we can start with contraception, which we have already kind of alluded to. You know, the author of Dobbs Justice Alito laid the foundation not just in Dobbs, but in a previous case, Hobby Lobby versus Burwell for a future case that might allow states to curb access to forms of contraception that states would try to label as abortifacients. Recently, the House of Representatives held a vote to enshrine the right to contraception in federal law. It passed in the Democratic controlled House. But all but eight, all but eight, House Republicans voted against protecting access to birth control. Mondaire How is this even possible and what was your experience with this vote?

 

Mondaire Jones I would say it’s possible because of our broken democracy. Whenever you have the vast majority of people voting against something that their constituents broadly support, you look at the mechanisms that allowed them to make it to Congress in the first place. We’ve got a Republican Party that votes against fundamental rights. Time after time to say nothing of other economic and social legislation that polls off the charts with the American people. It is a result of things like partizan gerrymandering that people who are clearly outside of the mainstream are able to coast to victory in a general election contest after simply prevailing in their primaries. That is how you end up in a situation where nearly every House Republican voted against a bill to simply give people the right to use condoms, among other things. And it’s shameful and it’s shocking. And it’s something that you’d never hear about if you were potentially half this country watching certain television networks or listening to certain radio shows.

 

Kate Shaw We should also talk about the implications for not just contraception, but marriage equality and also congressional action on that front. So the Respect for Marriage Act has passed the House actually with significantly more Republican support than the contraception bill. Still over 100 Republicans voting against. I think a lot of commentators were surprised that there was as much Republican support for the Respect for Marriage Act as there was. Those opposed are still claiming a states rights argument against making marriage equality a federal law. So the action now shifts to the Senate. So before talking about the Senate, we wanted to quickly play a clip from Senator Ted Cruz invoking the sort of states rights argument against marriage equality.

 

Ted Cruz In Obergefell, the court said, no, we know better than you guys do. And now every state must must sanction and permit gay marriage. I think that decision was clearly wrong when it was decided it was the court overreaching.

 

Kate Shaw We also wanted to play a clip from Lindsey Graham, who was on CNN recently saying that he thought states should decide the issue of marriage. But when pressed on whether states should also decide whether interracial marriage should be legal, he sort of dismissed the question as a distraction from inflation.

 

Unidentified You said two weeks ago, that’s the state by state approach is the best way to go. So I just want to be clear about your position. Are you saying that the 2015 Supreme Court decision that made same sex marriage the law of the land nationally should be overturned?

 

Lindsey Graham No, I am saying that I don’t think it’s going to be overturned.

 

Unidentified Nor should it be.

 

Lindsey Graham Well, you know, that’d be up the court. The reasoning, I think, could be attacked. But the point I’m trying to make is I’ve been consistent. I think states should decide the issue of marriage and states should decide the issue of abortion. I have respect for South Carolina. South Carolina voters here, I trust, to define marriage and to deal with the issue of abortion, not nine people on the court. That’s my view.

 

Unidentified How far down should I mean, how wide to that go? How many more issues you think were, for example, Loving versus Virginia that allowed interracial marriage? That shouldn’t be touched?

 

Lindsey Graham No. Here’s the point. We’re talking about things that are not happening because you don’t want to talk about inflation. You don’t want to talk about crime. This is all politics, my friends. Instead of trying to solve problems like unstable people and and guns, we’re talking about constitutional decisions that that are still in effect. But if you’re going to ask me, to have the federal government take over defining marriage, I’m going to say no.

 

Kate Shaw Okay. So, Mondaire. Does this law have a path in the Senate? And if not, could Obergefell really be vulnerable in before this court? And, you know, in general, sort of what does the next phase in terms of protections for LGBTQ couples look like?

 

Mondaire Jones This is my bill with Jerry Nadler, The Respect for Marriage Act. We got 47 House Republicans on it. We’ve got five Senate Republicans, approximately five Senate Republicans. Still not a filibuster proof majority over in that chamber, which is yet the latest reason why we’ve got to get rid of the filibuster or at least reform the filibuster to protect fundamental rights and other things. Here’s the thing. This is a bill that would formally repeal the Defense of Marriage Act. This is a bill that just requires the federal government to respect what the states have done with respect to marriage equality. And so these states rights arguments don’t hold water for that additional explicit reason. I don’t know that they’ve read the statute, but this is something that, along with contraception query whether interracial marriage will also be abrogated by this far right majority, depending on how Justice Thomas feels about that and so many other things. I mean, we saw the Supreme Court, of course, strike down a 100 year old New York state law that was simply meant to regulate concealed carry. We saw the Supreme Court in West Virginia versus EPA gut the intent of the Clean Air Act. So this court is on a rampage. We will not have a livable planet. We will not have certain basic freedoms that we just take for granted in our daily lives. We will not have a court that values and protects democracy itself to say nothing of its own precedents, whether 50 year old precedents or more recent precedents if we don’t reform this court. I do not expect people like Lindsey Graham or Ted Cruz to do the right thing here. It is why these people must be defeated, and it is why anti-democratic institutions cannot continue to be propped up in the midst of the worst assault on rights that we’ve seen in generations.

 

Melissa Murray So it’s not just marriage equality. It is also broader notions of, you know, the dignity and equality of LGBTQ individuals, including but not limited to Lawrence versus Texas. When you think about state legislatures, Florida’s don’t say gay law, the Virginia governor reportedly trying to ban the use of the word homosexuality in schools, the Texas attorney general suing the Department of Agriculture, saying food assistance programs can’t adopt protections for LGBTQ persons. It feels like an attack on the existence and rights of an entire community. How is the Supreme Court or like the courts, undermining this fundamental rights line of cases related to these trends?

 

Michele Goodwin It’s worth noting, with Justice Thomas concurrence, how virtually everything is up for grabs that relates to privacy, notably with the exception of interracial marriages, something that he personally benefits from. But but you’re right, Melissa, that every area that we tend to think of within the context of privacy becomes vulnerable. And when we think about these matters, within the context of LGBTQ equality, that there’s more than just marriage, there is also adoption that ends up becoming a matter that is vulnerable. Many gay couples do seek to adopt or to use other kinds of reproductive health care services, such as assisted reproductive technologies, in order to build and grow their families. And for people who think, well, the Supreme Court has said X, and so these matters come before the Supreme Court, everybody’s going to be protected. The reality is that so much of the areas in which we’re talking about are deeply local before a matter will even get to the Supreme Court. If a matter gets to the Supreme Court, it’s dealt with by local clerks, local judges, etc., so that if there is a clerk that’s been motivated by the tone and tenor of where the country has gone post Dobbs, by the Supreme Court, that local clerk may refuse to certify a marriage license or process an adoption that’s out of state for a same sex couple or even do the same for interracial couples, which has happened in our country, even post Loving v. Virginia, that 1967 case that struck down anti-miscegenation laws. So one can’t hold confidence in the court for any number of reasons. Right. And they have the lowest confidence rate that the American people have in the court in more than a couple of generations. But even that aside, the reality is that we have to worry about what happens. At the very local levels. And given the way in which the Supreme Court turned its back on the people of Texas even before the Dobbs decision with the S.B. 8 case, one can’t have confidence that this is a court that will intervene even in the most alarming ways in which people will be affected by this anti LGBTQ, anti-woman and just all of the antis that are born within this space.

 

Rebecca Traister The connection that we’re talking about here is also about the reestablishment of lines within a capitalist white patriarchy that wants to reestablish hierarchies and distribute power, resources and and burdens along lines that are delineated by race, by gender, and by class. And that is the way there. It is no accident that the attack on trans rights and gender affirming health care is happening hand in hand and through many of the same means, like deputizing civilians to turn in. Parents who are providing their children with gender affirming health care is, you know, the same related mechanisms to people who are being deputized to turn in people seeking or helping people gain abortion care. Right. It is about returning. It is about reversing many of the gains that were made over the past century on behalf of people who had been marginalized in one way or another and in many cases marginalized from many directions simultaneously. And it’s about reestablishing those those lines of of power and putting people in boxes where they can be more easily and neatly oppressed.

 

Melissa Murray Speaking of more neatly oppressing people, Justice Alito was on a press junket recently. He appeared at the Notre Dame Religious Liberty Summit in Rome, Italy. And he really gave us a mash up of all of the things I really love about this podcast, some things that were just really geared to my interest. So he talked about the Supreme Court, he talked about reproductive rights and he talked about Prince Harry. But don’t take my word for it. Let’s play the clip.

 

Justice Sam Alito When I was putting these remarks together, I was tempted at this point to provide some examples. I am not a diplomat like Professor Glendon. I would be very bad about it. But it was unusual for me to this sort of a diplomatic impulse came upon me and I said to myself, You’re an American judge, and what business is it of yours to criticize decisions that are handed down by foreign courts? I had a few second thoughts over the last few weeks since I had the honor this term of writing, I think the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders. Who felt perfectly fine commenting on American law. One of these was former Prime Minister Boris Johnson, but he paid the price. Post hoc, ergo prompter hoc. Right. But others are still are still in office. President Macron and Prime Minister Trudeau, I believe, are, two. But what really wounded me what really wounded me was when the Duke of Sussex addressed the United Nations and seemed to compare the decision whose name may not be spoken with the Russian attack on Ukraine. Well, despite this temptation, I’m not going to talk about cases from other countries. All I am going to say is that ultimately, if we are going to win the battle to protect religious freedom in an increasingly secular society, we will need more than positive law.

 

Melissa Murray This was a typically non-judicial, non judicious grievance written speech by strict scrutiny fanboy Samuel Alito.

 

Leah Litman With his new beard. You even talk about he got a new beard.

 

Melissa Murray He didn’t even talk about the beard. He did. And I don’t want to force any of our our guests or our host to answer this question, but to the extent any of you would like to. What is up with this guy? Why is he still so angry? Like he just wrote the opinion overruling Roe and still he feels it necessary to personally come for.

 

Leah Litman Prince Harry.

 

Melissa Murray He criticized him on social media and on social media.

 

Leah Litman I mean, look, the man has grown a full on beard and it’s hard for people to do like he is living his best life. He’s gotten rid of reproductive rights. He’s grown a full beard. Why is he sticking it to Prince Harry? What is Prince Harry done to him? What have we done to him?

 

Mondaire Jones Just when you think the assault on fundamental rights could not be worse, he then assaults you, your sensibilities with his beard. And what he does is he diminishes even further the reputation of the court. I was telling some folks yesterday in the district that the court is only as powerful as really the power that we imbue in the respected the people imbued to it. And we can’t have confidence in people who are supposed to be unbiased and who are supposed to be these neutral arbiters of justice. But who are going on these rhetorical rampages against their political opponents? I mean, my God.

 

Michele Goodwin And not even supposed to be political point. He’s because he’s on the court, right?

 

Mondaire Jones Yeah. Yeah. He’s super political. You know, and we’ve all seen what  Ginni Thomas has been doing that that was really bad, too, earlier this year, too, to see Justice Thomas not comply with a recusal statute and still help. Well, he was the lone dissenting view in a matter over the forced compulsory production of documents that could have contained text messages in which Ginni Thomas and the former Trump chief of staff, Mark Meadows, were plotting to overturn the 2020 presidential election.

 

Michele Goodwin Highly suspect. Well, I will say that I was in Italy at the same time that he was there.

 

Leah Litman Were you there? Were you at the same as that? Had you been invited?

 

Michele Goodwin Not at the event. I was not at the event. I was not invited to the events.

 

Leah Litman Hell to freeze.

 

Michele Goodwin But I was there. You know, there’s something worth noting, too, about the international aspect of this, because Justice Alito said, you know, how dare world leaders chime in on this, you know, sort of really navel gazing into the U.S. exceptionalism. And there’s a level of irony to this, because the very treatises that he cites in undermining Roe v Wade and Planned Parenthood v Casey is that he’s leaning on these old European guys to do so. Blackstone, you know, and and more. Right. Who wrote about coverture and about how women had.

 

Rebecca Traister Patriarchs going to patriarch.

 

Michele Goodwin Patriarchs are going to patriarch and, you know, and be opportunistic in doing so. Right. Like, I only want international archaic intervention when I want international archaic intervention, but I don’t want world leaders today chiming in. I’ll write an opinion today where I’m citing, you know, 14, 15, six, 16th century Europeans, but I don’t want to hear from them today in their critique of my opinion.

 

Rebecca Traister I also want to float the possibility that he may just be a mean, small, malevolent, reactionary with a lot of power.

 

Leah Litman Wow.

 

Mondaire Jones  I mean. I think. I think he’s still bitter that he didn’t get that Supreme Court clerkship.

 

Melissa Murray I think he’s still bitter. He’s not the chief justice.

 

Mondaire Jones Oh.

 

Leah Litman All of these things can be true.

 

Michele Goodwin A lot of bitter. But I think about the context of that question as being so important. Right. If we were in the time of talking about Justice Tawney after Dred Scott, I mean, it’s a legitimate question. How should we see Tawney the moment after the decision comes out? How do we understand? So it’s not tongue in cheek. Right. I mean, when you think about it’s something else here, too. Right. Because of the tone in which Justice Alito has brought to criticizing others, including other justices who’ve served on the court, we haven’t seen that kind of tone used against justices who even supported human enslavement. You see this kind of tone against the justices in the Korematsu decision. And what that’s what it’s very interesting to see his very kind of like slash and burn kind of tone that’s used against justices who supported women’s equality and liberty in ways that we just didn’t see when the court was dismantling separate but equal and also moving beyond human enslavement.

 

Mondaire Jones There’s also been evidence in recent months of that derisive tone being directed at Chief Justice Roberts. Right. I mean, you see a man who’s been emboldened by a 6-3 majority that no longer relies on the chief justice to prevail and any decision that they want. That is horrifying.

 

Melissa Murray He’s not just emboldened by the six three majority. I mean, I would argue he’s emboldened by the fact that unlike many men, he’s managed to grow a beard that connects all the way around, which is a huge feat. So I don’t know why he’s so angry. And this is your moment and I will contrast him with Justice Thomas. Like Justice Thomas just he’s been silent because I think he’s basking in it. Like on his birthday, he got to write the majority opinion in Bruyn and beginning the Second Amendment. And a day later he got to dismantle reproductive rights. Justice Thomas is living his best life and it shows. And there’s none of this grievance. Like that’s a model, I guess.

 

Kate Shaw Okay. So this has been an extremely depressing hour of discussion about how Dobbs has played out over the past two months.

 

Melissa Murray I found that lasst segment very uplifting

 

Kate Shaw That’s true. And so we had an uplifting moment. And we want to end on another one, or at least to try. So we kind of want to end with talking a bit about what we do and including but not limited to how we do self-care. Okay. So ways we sustain ourselves, keep ourselves going during this probably generations long as Rebecca described it, fight to come for fundamental rights. Rebecca, you wrote a whole piece about how being hopeful is an imperative and an obligation, and your remarks earlier about drawing both inspiration from and a sense of obligation from those who fought before is part of the answer to the question about what we do and what we reach for? But any tips you can share or thoughts you want to share with our listeners for like what we all do now?

 

Rebecca Traister Oh, well, there’s so much. I mean, so first of all, I, I did write in the wake of Dobbs about Hope, and I drew on the work of the prison industrial complex abolitionist Mariame Kaba, who says very often hope is a discipline. The argument I made in that piece was not I think people wanted to take it as like a feel good piece, like, don’t worry, you know.

 

Kate Shaw They didn’t read the piece if they thought that.

 

Rebecca Traister Right. Okay. All right. Well, I mean, I got I got some of that. And it was actually a call to really reckon with how bad this is.

 

Kate Shaw Yeah.

 

Rebecca Traister You know, I think as and I think my remarks earlier go to this, I think we’ve really failed in not reckoning with how bad things have been before Dobbs, as part of how we got here. I think it’s really an imperative. The bad part of this, like, self-care answer is like, we got to really sit in it. We got to be very clear eyed about how dystopian it is. But that that is part of a project of how to figure out how to move forward. Because and the part about moving forward and what Mariame Kaba says about hope as a discipline is like it is our work to believe that we can make things better. That’s the responsibility. That is the call. That is our lives. Right. And so how do we do that? How do we get there when there is not in fact, some feel good, like, well, if you flip this switch, here’s one simple hack to, like, make things better. Okay. And this means reckoning with a lot of complicated, nuanced stuff. It means no easy answers, among other things too, right. That’s something that I’ve been reckoning with as a journalist who’s constantly being asked in all kinds of contexts to make things sort of streamlined and simple. This is not a simple moment, and we’re not looking at a simple future. And I think we’ve got to wean ourselves away from an urge to, like, traffic only in sound bites and hacks. We have to reckon with, like all kinds of distance views. So like, what are the terms and the length of the fight? Okay, so there’s an immediate fight, right? There’s the fall, there’s midterms. There is there is a real need to look at what we can do on a federal level with a with a potential real Senate majority. Right. This is what Mondaire is talking about. Right. Would if we could elect a Democratic Senate that doesn’t make Joe Manchin king. Right. That takes Joe Manchin power away. That is a real fight to have that has direct implications on on the filibuster, on abortion, but also on the care economy that just got jettisoned from from Biden’s legislation. And that is completely intertwined with this. Right. That is about being able to pass legislation around health care reform, around paid leave, around the kinds of supports we’ve been talking about that are going to be necessary in addition to passing protections for abortion on a federal level. So we actually have to be focused on that, but we simultaneously have to acknowledge that if that is not a solution, and even if it is, it doesn’t stop there then and it doesn’t it’s not only that it is these local elections throughout. You know, Michele and Melissa have been talking about these local questions. It matters who are prosecutors are who are DA’s and attorneys general and school boards and state legislators are right. And that never stops. That’s not just that. Those are elections that are rolling that happen all the time. And it’s not just about voting. It’s about thinking who your candidates are going to be. Who do you want to run? Do you know somebody who should run? Should you be pushing more people into politics? These projects are all around us, right? So that’s a political level thing. And part of the project is acknowledging that that looking forward isn’t just some make or break thing that’s going to happen in November. Right? This is a lifetime of engaging in these subjects in a different way. It means that the thing we’re talking about earlier, reading, learning history, like learning about our places, listening to other people, looking at the people around us in our communities who’ve been doing this work who themselves need breaks, you know, buying them a drink, okay. Offering to take their kids for a night so that they can go out with friends or a significant other. Right. These are minor things, little things. And that gets this health care option. This is going to be our lives. So we got to figure out how to sustain our engagement and our work here. Right. And especially for people who are new to this level of engagement. And that’s a lot of middle class white people who are relatively new to this kind of fight, who don’t have the lived and familial history and experience to draw on of, like because they grew up with an illusion that things were fixed. That was always a lie. There is a real lesson in like how this is a lifetime of of engagement and responsibility ahead of us. So how do you you live your life and take care of yourself in order to sustain your engagement in your work? And both halves are necessary. You can’t burn yourself out. You can’t despair. You can’t become paralyzed or cynical. Okay, so how do you do that? And it’s about connection with other people. It’s about learning and listening from other people who have been engaged in these things for a lot longer. All of these are kinds of complex and intertwined lessons. It’s about moderating like immediate fights versus long term commitments and how to do both at the same time, how to how to pick up after lost. Because there’s a lot of loss. It’s going to be a lot more loss. How to pick up after loss and keep fighting. I don’t have simple solutions for any of these things, but these are all the kinds of things that I am thinking about. But behind them all, we can’t lose sight of possibility, right? That seeing those things, they can be around the corner, things are as bad. And again, it’s so bad. It’s so bad. But there are ways to address it. There are ways to make it better. And they exist too. Those kinds of supports that are out there. The stuff about care economy and protections for for marriage equality and for abortion and electing better politicians. Democrats too, right. Like that, those those people are out there. Those paths are in front of us. And they’re going to be a lot of losses if we pursue them. But there can also be wins. And I think that has to we have to keep that in mind, not just for like next week or this fall or like 2024 or whatever you think that thing is. That’s the one crucial thing. No, they’re all crucial things all around us. And everything is is peril, dystopia and possibility. And we got to live our lives that way and pace ourselves and take care of ourselves and and, you know, be with our communities and our families and our friends and look to take care of the people around us, too.

 

Leah Litman The thing that’s so striking about what you just said, Rebecca, is like that is essentially the game plan that the right has used for 40 years. Like they’ve seen all of their issues. As not one silver bullet win, but a series of advances and retreats and advances and retreats that ultimately culminate in where we are. And we need to play the same kind of persistent ground game. And, you know, I don’t think it’s just middle age white people. I mean, I think there are young people who are just who don’t remember that this was 50 years ago that people were fighting for this and how to get back in the game at a time where activism feels really different.

 

Michele Goodwin So I’ll just quickly say that the activism is as critical and crucially important as has been explained and laid out and has been written about so much and being spoken about. But I’d also say that there’s something important about joy as well, and I think that’s hard for people to be able to process. And it seems that sometimes there are people who are a bit become a bit angry on the left when we start talking about joy. But again, if we understand historical roots, if we understand intersectional connections and we understand that part of a very important form of resistance in this country, led by black folks, has been this matter of not allowing individuals to rob us or steal joy. I think it is part of what made people so angry about black people and civil rights songs during the Jim Crow era. I think it was so misunderstood during the antebellum time in our country with black people singing in the fields and whatnot. But joy is incredibly powerful. It is an amazing form of resistance. And, you know, I just say that in the darkest times it is when we can most clearly see the light of the moon and stars and our pathways towards freedom. It’s time for a third reconstruction. And if the first was the ratification of the 13th, 14th and 15th Amendments and the second the 1964 Civil Rights Act and the 65 Voting Rights Act, then it’s time for us to be thinking about what is it that we want built into the next reconstruction and how do we keep it, and how do we stay firm and strong and not allow the passion and power behind it to disintegrate?

 

Leah Litman Mondaire, Any closing thoughts from you?

 

Mondaire Jones It’s hard to go after that. You know, I’ve been talking about a third reconstruction for a while now as well. And I agree wholeheartedly with what Rebecca and with what Michele have said. I would add this, as we contemplate the lessons of history, let us also remind ourselves that at various points in American history. People of good conscience. Our predecessors have faced long odds. In fact, the odds were longer then, at those times, than they are today. John Lewis was literally bludgeoned to the point of unconsciousness as he crossed the Edmund Pettus Bridge, and that resulted in the Voting Rights Act of 1965. The least we can do in these moments are to use the rights that those who came before us have secured for us our votes and our voices. And I think when we do those things, we will be victorious. We have seen success in red states like Kansas, where perhaps few people would have predicted those results. And we know that American public opinion is on the side of basic freedoms that we enjoy today, ones that we previously enjoyed prior to the fall of Roe. I am ever optimistic about the future of this country, even as I acknowledge that things are likely to get worse before they get better. That motivates me and animates my work. It gives me the courage and the optimism to press forward. And I know that now more than ever, people are looking for that. And I think they have great cause to believe that as we press forward and fight as hard as we possibly can, that we will restore some sanity to this country and we will restore the dignities that are under assault right now.

 

Kate Shaw That’s it for this episode. Thanks to our fantastic guests, Michele Goodwin, Rebecca Traister and Congressman Mondaire Jones for being so generous with their time and for all the great work that they are doing. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and Summer Intern support from Anoushka Chander.