Given the recent leaked draft of a Supreme Court decision which could overturn Roe v. Wade, we do a special episode with a focus on abortion access, law and lived experience. Farai starts with best-selling author of Nomadland, investigative journalist Jessica Bruder. Her Atlantic Magazine cover story, “The Abortion Underground” details the covert network that is preparing for the possible end of legal abortion on the national level. Farai invites Jessica to answer questions provided by OBP listeners as well as share additional insight she has on what preparing for a post-Roe future could look like. Then, Farai speaks with Madison Jacobs, communications strategist at the Public Rights Project about the state-level abortion fight in Michigan and elsewhere. In the weekly segment, Sippin’ the Political Tea, Farai speaks with law professor and OBP legal contributor Tiffany Jeffers and reproductive rights expert and UC Irvine law professor Michele Goodwin, who begins with the lived experience and learnings from her own abortion.
Farai Chideya:
Hi, folks. We are so glad that you're listening to Our Body Politic. If you have time, please consider leaving us a review on Apple Podcast. It helps other listeners find us and we read them for your feedback. We'd also love you to join in financially supporting the show if you are able. You can find out more at ourbodypolitic.com/donate. We are here for you, with you, and because of you. Thank you.
Speaker 2:
Mr. Lujan, Ms. Lummis, Mr. Manchin, Mr. Markey, Mr. Marshall, Mr. McConnell, Mr. Menendez, Mr. Merkley.
Speaker 3:
On this vote, the yeas are 49, the nays are 51. Three-fifths of the senators duly chosen and sworn not having voted in the affirmative. The motion is not agreed to.
Farai Chideya:
This is Our Body Politic. I'm Farai Chideya. On Wednesday, the Senate voted on the Women's Health Protection Act, an attempt to codify abortion rights as federal law. It failed with Senator Joe Manchin, Democrat of West Virginia joining Republicans to defeat the bill 51 to 49. Now, this comes after the recent leaked draft Supreme Court decision foreshadowing the likely end of Roe V. Wade, the law protecting abortion as a medical procedure within a framework of a right to privacy. Our show this week focuses on abortion access and what might lie ahead if Roe is overturned. Starting off, we'll speak with Jessica Bruder. She's the author of the bestselling book, Nomadland, turned into the Oscar winning film, and now she's written the cover story of The Atlantic Magazine, The Abortion Underground. It's about the ways that people are preparing for the possible end of legal abortion on the national level. Welcome, Jessica.
Jessica Bruder:
Thanks so much for having me, Farai.
Farai Chideya:
So on this show, we have talked a lot about the legal questions, the rise of state laws restricting abortion access, the Supreme Court, and with you, I want to focus on your reporting and what lies ahead, and plus we have questions a little bit later for you from our listeners. But first, I wanted to ask if you could read us the opening paragraph of your story.
Jessica Bruder:
Of course. One bright afternoon in early January on a beach in Southern California, a young woman spread what looked like a very strange picnic across an orange polka dot towel. A Mason jar, a rubber stopper with two holes, a syringe without a needle, a coil of aquarium tubing, and a one-way valve, a plastic speculum, several individually wrapped sterile cannulas, thin tubes designed to be inserted into the body which resembled long soda straws, and finally, a three dimensional scale model of the female reproductive system.
Farai Chideya:
You're sitting outdoors at this very strange beach picnic. You call this woman Ellie. Who is she and what is she showing you?
Jessica Bruder:
Ellie is a reproductive health educator, and what she's showing me is a device called the Dell M that came to life in 1971, two years before Roe was decided. What happened was a lot of feminists out in Los Angeles had been trying to figure out how to bring, essentially, women's health more into women's hands, and the idea was how can we make abortion safer? And what they started doing was shadowing somebody who had an illegal underground abortion clinic, and this person had created something that is now the medical standard, believe it or not. It's called the Karman cannula, and this was a soft, flexible plastic tube that was used with suction and made abortions much less traumatic than the scraper procedures that had come before.
Jessica Bruder:
And the people who went in and witnessed this wanted to adapt this and use it to create a version of this clinician's device that could be used at home and created by just about anybody and used in small communities. And they called this device the Dell M. What Ellie's goal was to show and to share that there were people who had much less access to tools and technologies than we do today who found a way to work within a world where abortion was heavily criminalized. It is a reminder that the fight isn't over and that people do come together in a grassroots and underground way to collaborate, to share through mutual aid and to pass down this wisdom.
Farai Chideya:
And so when you talk about the abortion underground, is it a connected movement or is it a bunch of people doing things on their own separately from each other? Or is it both?
Jessica Bruder:
Yeah. You nailed it. It's a little bit of column A and a little bit of column B. A lot of people I spoke with were connected with other people I spoke with. Often I would speak to one person for hours and then that person would feel comfortable recommending me to somebody else. So there were networks that I was moving through and then there were also individuals who were kind of doing their own thing. But they all shared this common notion that Ellie articulated really, really well, I think, that reproductive rights aren't something that's given to us by the state, by the church, by the government, by anyone, in fact, because as she told us, these are rights that are inherent to us as humans. So how can they be given? And the corollary, how can they be taken away?
Farai Chideya:
Now, our show focuses on women of color, and a lot of the questions that we're going to get to a little bit later in the show do come from women of color, but did you meet any women of color as part of the abortion underground?
Jessica Bruder:
Several, yes. Several.
Farai Chideya:
Yeah, because sometimes I find that when there are crisis moments in America, people's networks are not always connected across racial lines as well as across class lines and regional lines. And I'm just wondering, without being overly revealing, did you notice anything about the dynamics of race in this space of organizing around abortion access?
Jessica Bruder:
There seemed to actually be a pretty strong awareness that in many ways, women of color have led movements for reproductive rights in this country for a long way and for ways that have not been acknowledged. One organization that your readers may be familiar with already is Sister Song Women of Color Reproductive Justice Collective. They've been around since 1997, and they have a great definition for reproductive justice. This is a term that was invented, was coined in 1994, and was by a group of Black women who gathered in Chicago. They saw a women's rights movement that was led by people who didn't look like them.
Jessica Bruder:
They saw a movement that was led by middle class and wealthy white women. They brought to question, quite reasonably, whether such a movement could adequately represent and protect things needed by women of color and other marginalized people. It's the idea, and Sister Song defines it beautifully, as the human right to maintain personal bodily autonomy, have children, not to have children, and to parent the children we have in safe and sustainable communities. So the big takeaway there is how abortion rights are part of a mosaic. They're not just one simple thing that can be looked at, fought for, and hurray, that it's just a much bigger and more complicated picture.
Farai Chideya:
So, Jessica, can you read us another passage? This one about the rise in use of medications that can end pregnancy.
Jessica Bruder:
Yanow told the story of a woman named Jennifer Whelan in Pennsylvania who bought Mife and Miso online for her pregnant 16 year old daughter. After the teenager took the pills, her miscarriage began. She became frightened when stomach pains hit, so Whelan drove her to an emergency room and told doctors about the pills. The daughter was fine, but Whelan was charged and pleaded guilty to offering medical advice without a license. She was given a jail sentence of nine to 18 months.
Farai Chideya:
That story was told to you by Susan Yanow, a reproductive rights advocate. And I believe she was speaking to other people at the time, but what was the message that she asked people to take away from the story and what does she do?
Jessica Bruder:
Yeah. The message was that people in similar situations have to know how to present themselves to doctors, particularly if they're in a context where a medical institution even might be hostile to abortion. And now that we are on the eve of what may be the criminalization of abortion in many places, people will likely be taking pills in states where they can face real criminal jeopardy and liability if they need help. She recommended that if people need to go to a hospital, that they should say that they're having a miscarriage or that they're bleeding and they don't know why, the idea being that the abortion pills are inducing a miscarriage and that the miscarriage induced by the abortion pills is indistinguishable from a spontaneous miscarriage and gets the same type of treatment. So there is no reason to make oneself vulnerable to overzealous prosecutors, to police, to doctors who think it's their job to somehow report to the state by disclosing having taken those pills.
Farai Chideya:
And yet some women have been prosecuted for spontaneous miscarriages as if they had planned them.
Jessica Bruder:
Absolutely. It's wild. And I felt after just reporting on this, seeing what happened last month with Lizelle Herrera in Texas. You remember this, when this 26 year old woman was arrested by Texas sheriffs on a murder charge. Law enforcement officials claimed she was involved in a self-induced abortion, and she had been in the hospital and taken pills and had been reported by doctors, which doctors should know is not their responsibility. And also, this wasn't actually even criminal in Texas under Texas's laws, which we know are stringent and draconian.
Jessica Bruder:
This wasn't even something that could stand up in court. But just the fact that she'd taken the pills, even though there was nothing that they could bust her on, nothing that they could pursue as a charge, they could still drag this person through the mud. And in my mind, that's part of the danger here too. Even things that don't cross the line into illegal, this does not protect communities from overzealous law enforcement and overzealous prosecutors. And we know that sort of stuff is going to land on the same communities that are already over-policed, right? Which is communities of color and low income communities. So a lot of it comes back to that.
Farai Chideya:
You talk about a nonprofit called Abortion Delivered, which already exists and is thinking about expanding. Tell me what they do.
Jessica Bruder:
They are working to create mobile van-based clinics that could be on the borders of states where abortion is criminalized or heavily restricted.
Farai Chideya:
That was Jessica Bruder, author of the bestselling book, Nomadland, and most recently of the May cover story for The Atlantic Magazine, The Abortion Underground. Coming up next, Jessica Bruder answers questions from our listeners, plus we hear about the potential impact of abortion trigger bans from Madison Jacobs of the Public Rights Project. Then our weekly round table, Sipping the Political Tea, on what bodily autonomy will really mean if Roe v. Wade is overturned. That's on Our Body Politic. Welcome back to Our Body Politic. We are back with Jessica Bruder, author of the bestselling book Nomadland and also author of The Atlantic Magazine cover story, The Abortion Underground. I'm starting to hear a lot of people who are advocates for abortion access to be available to women without financial restrictions, really saying you've got to give to networks. There's definitely a lot of emphasis I'm seeing on where should money go.
Jessica Bruder:
For so many people in underserved and under resourced communities, they'll tell you Roe might as well not exist already in our community because abortion is one thing, but having the right to do it... Elon Musk could tell me I have the right to go to the moon, right? Well, I can't afford that damn ticket. What a lovely right. So you can tell somebody they've got the right to abortion, but without any access, it's a very empty proposition. So what national abortion funds and practical support groups have been doing forever is helping connect people with the resources that they need, whether people have to take time off from work, people often need childcare, people need transportation, people need lodging, people need to pay for the procedure itself, which ever since the federal Hyde Amendment was passed in '76, is not eligible for federal Medicaid funding. Again, another direct attack on communities with fewer economic resources, right? I mean, that's a direct attack on the poor.
Farai Chideya:
Now, Jessica, we spent a couple of weeks getting questions from our listeners and we wanted to give people the chance to remain private, so we got members of our staff to read the questions that folks listening submitted to us in writing. Here's our first question.
Speaker 5:
How will birthing people access this covert network? How is it being marketed and who, demographically speaking, is actually benefiting from it?
Jessica Bruder:
When I spoke with people who were involved in grassroots and underground efforts, they were largely reaching out and doing the best that they could. In terms of accessing care directly, one of the things that a lot of people are pointing pregnant people to if they don't wish to be pregnant is the website plancpills.org, that offers state by state guidance in terms of how to access abortion pills. These are people who are really trying to facilitate where the gaps are, and I don't think that to access care, even in a post Roe world, somebody has to say, "I must find the underground." I think the idea is once people dig in and look at the resources that are there, they may find that there are more people who are hidden in plain sight who are trying to make things happen and grease the wheels.
Farai Chideya:
Let's listen to another question from our listeners.
Speaker 6:
How will this affect people in more liberal cities like Chicago, Los Angeles, or New York?
Jessica Bruder:
I think there is some feeling... I wouldn't call it complacency, but in really deeply blue areas of the country, "Well, this won't impact us. This is an issue and we should care about this, but again, this doesn't impact us." So that's not true at all, and I'd love to point to Texas. When SB 8 was passed there in what a lot of people saw as a dress rehearsal for the end of Roe, there was this abortion diaspora that happened. There were bottlenecks in neighboring states where abortion remained legal. People who lived there could no longer get care in a timely way. They either had to wait, and in some cases that meant their pregnancies were further along, which meant more complicated and more expensive procedures, or they had to go elsewhere. Even states as far flung as Washington state and Maryland saw an uptick in Texas patients.
Jessica Bruder:
And blue states are already increasing capacity. There are places that want to dedicate themselves as abortion sanctuaries. We know that abortion clinics in California are building new facilities. They're trying to get more of a footprint closer to transit hubs. They're training more staff. We have in multiple cities abortion rights bills moving through legislatures, wanting to just up the infrastructure and in some cases, help support the financial needs and other needs of people who may be coming in from out of state. So again, while this will have a devastating impact in the red states, it's going to impact everybody, and that's something we all need to think about.
Farai Chideya:
And here's our final question from listeners.
Speaker 7:
As someone in her thirties, I have only lived with Roe v. Wade, but I've read about what women's experiences were like before. How would a covert network now be similar to pre-Roe v. Wade and how would it be different?
Jessica Bruder:
The good news I have to share is that we cannot go back to a pre-Roe world, and that's not just me trying to be reassuring. It's that the world has changed very much and we have two things we did not have during the Roe era. One of them is abortion pills, and we know that the vast majority of abortions happen within the first trimester when people are using these pills. We know that pills were used for more than half of abortions in the most recent count. And we also have the internet and many different ways for people to organize, so I think that while we will have networks of people helping people, we will have that same spirit of mutual aid among people who care. I think the tools that are available today are so much better.
Farai Chideya:
Jessica, let's go back to that question of digital security. And I would also say as a longtime field reporter, I really am grateful that you went out on the road, and it is always with risks, both psychological and physical and digital. So how does security relate to the question of the abortion underground and the future of abortion access?
Jessica Bruder:
So now more than ever, it's important for us to talk a bit about digital security. I want to give you a couple examples, both involving women of color. In 2017, a mother of three named Latice Fisher, she's Black, had a stillbirth, and when her husband called 911 to report it, she ended up getting charged with second degree murder. This was based on cell phone data. She had searched the internet for abortion pills two years earlier than that. And a woman of Indian heritage, Purvi Patel, was convicted of feticide and child neglect after taking abortion pills. We know that part of the evidence used against her involved text messages that were unencrypted with a friend describing searching for that medication online. So it's important to know we have very, very weak online privacy protection in the US. It's good to think about it like this. Don't do anything on your laptop or cell phone that you wouldn't want printed on a billboard.
Jessica Bruder:
So there's some simple stuff you can do. One of them is turning off the location, sharing on your devices. That will help avoid you get targeted from advertisements that could be related to pregnancy or abortion. You should consider using an encrypted chat service like Signal, which is what I use. You can also set the messages to disappear after a certain amount of time so they won't remain on your phone. You can use the internet with Tor or a virtual private network, a VPN, just anything that will help you browse privately. Firefox now has a new browser for smartphones. It's called Firefox Focus. It's all about privacy. These are some of the things you can do. I'd love to refer you to the Digital Defense Fund. The best place to find more on this is digitaldefensefund.org and then abortion-privacy. It is a wealth of resources for people who may be seeking abortion and also for people who want to help them.
Farai Chideya:
That was Jessica Bruder answering your questions about the future of abortion access. You can find her cover story for The Atlantic Magazine, The Abortion Underground, online at theatlantic.com. And we're focusing this week's Our Body Politic on abortion at the local, state, and national level, so now we want to turn to Madison Jacobs, chief marketing and communications officer for the Public Rights Project to talk about that organization's work on the state level in Michigan. Welcome, Madison.
Madison Jacobs:
Hey, how's it going? So great to be here today.
Farai Chideya:
Oh, I'm glad to have you with us. Just this morning, I woke up and was reading an op-ed in the New York times by Michigan governor Gretchen Whitmer talking about her work in filing a suit to preserve abortion access in her state. So can you tell us what the suit is about?
Madison Jacobs:
This is a national issue, although this is happening in Michigan and we're in the fight in Michigan and that's what we're discussing today. Obviously the premise of this is so, so big and so meaningful. If Roe is overturned at the Supreme Court level and there's sort of these zombie laws that could pop up in states all over the place, and Michigan has one of these zombie laws. It's actually in a law standing on the books from 1931 that bans abortions in the state. So the case that the governor has brought forth in front of the Michigan Supreme Court is to have them look at the constitutionality of how there should be abortion rights access in Michigan. The governor is asking that the Michigan Supreme Court look at the constitution in Michigan and kind of uphold a standing for rights to abortion.
Farai Chideya:
Okay, Madison. So what you're calling zombie laws include, I think, 13 states with trigger bans, another five states with other kinds of statutes, all these old statutes that could end abortion access immediately if Roe is overturned. And so let me know how you see your work in Michigan relating to the other states.
Madison Jacobs:
We're really having lots of conversations with our partners all over the United States to figure out what does this look like in different states. Not only are there zombie laws in our movement, but there's kind of the opportunity that other people would bring new laws onto the books and try to pass those laws at certain legislatures, depending on what the makeup of those legislatures are.
Farai Chideya:
Right.
Madison Jacobs:
So I think there's not sort of this standard playbook, but I think this is an opportunity for a lot of elected officials, especially those that are at the court level or the call it the legal function of the government to really think about what are the creative ways that we can bring forth support for rights to abortion and right to access an abortion and reproductive rights in their state. And that playbook's going to look different across states and across counties and across cities.
Farai Chideya:
And so how would you describe your role in this work?
Madison Jacobs:
I actually am the CMO at Public Rights Project, so a lot of my work is to get out into the world and tell the stories of the folks that are affected by the loss of a protection like this. So not only do I work to organize folks on the ground to understand what are happening to folks in Michigan, what are the certain instances and circumstances where this story would really find such a resound. I mean, if you look at the state law in Michigan, we're talking about a 1931 law that doesn't make any exceptions for rape. It doesn't make any exceptions for incest, right? So there's just such a dire... Gosh. Even talking about it, it's just, it takes you aback so much. You're really just like, "Wow." This isn't just about law or the courtroom or the governor or the prosecutors or the Supreme... This is about real people and real stories and real people that are impacted by this.
Madison Jacobs:
So a lot of my work is focused around how do we organize and resound around the stories of those that will be affected and how do we actually help empower people with the right messages and the right things to say about what is going on? I mean, we've seen so much coverage in the media about this issue, but a lot of people are still very confused. It's really hard to kind of digest everything that's going on because the government has so much power and authority, especially at the state and local levels to take action against what's happening at the higher court. Just because the Supreme court might make some type of ruling doesn't mean that it necessarily... It creates a battle that states are going to have to take on their own. So we're really focused around getting a lot of the stories and a lot of the things that we need to create an environment where the elected officials that are on the side of reproductive rights can do their job and step up and hold the line for people in Michigan and people all over the United States.
Farai Chideya:
And Our Body Politic is a show focused on women of color and politics and many other forms of power, so if you self-identify as a woman of color, tell me how that's influencing your perspective on this debate over abortion.
Madison Jacobs:
I'm from the Midwest, tried and true Midwesterner. My whole family is from the Midwest. And I remember really acute instances of interfacing with Planned Parenthood as a kid. My mom was a single parent, and so Planned Parenthood was actually a place that my mom went to, to get reproductive care, to get advice, to get all of these things that she needed to access. I talk a lot about knowing people actually in the state of Michigan that this law would affect, people that do have the capability of having a baby and do want to have the right to choose over their own bodies and over their own purview for their life. And it really affects me personally as well. I think about just my own personal story with pregnancy. When I was in my early twenties, I actually got pregnant.
Madison Jacobs:
I was in college at the time I had access to pretty restrictive healthcare, and it was navigating this conversation was one of the most tumultuous things I've ever done in my life. Just really being in the perspective where you're saying, "Okay. I've found out I've pregnant, I've realized that I don't know exactly what I'm going to do next, and I just want to sit down and have a conversation with someone that can help me navigate what decision I should make." And there's so many paths and there's so many decision points that have to be made. And I know that there's a lot of people on the opposition saying, "Well, how is the mental health of a woman," or let's just add the compound of a woman of color "affected by having an abortion?" And it's like, well, what is the mental effect of submitting your child to someone else and giving a child up for adoption?
Madison Jacobs:
Or let's not even forget about all of the things that are required to even birth and have a baby. The healthcare system and the healthcare system specifically for pregnancy is really, really acutely inequitable for women of color, so you're talking about also going into a healthcare system as a woman of color to not only get reproductive care or care during a pregnancy, but we're talking about really harmful outcomes that are also happening for women of color in the delivery room, right? We've heard stories about being in pain or not having access to things that they needed and people sort of treating them inequitably in these situations when it comes to pregnancy and it comes to birth and it comes to the mortality rates of women of color. And as a woman who wants to make a family and have a family someday, this hits so close to home, and look at where we're at today.
Madison Jacobs:
We're taking so many steps, a half a century of steps back that we would be taking if this law at the Supreme Court level was removed. There's a lot of people that are saying right now, "Let's wrap our arms around these women and give them the resources that they need to care for children and give them the resources that they need to feed their kids and give them the resources that they need to house their kids," and it's like, "Yeah, until they're Black or they're transgender or they're queer. Then we don't care. They can just die in the streets." Right? And that's the fact of the matter. So I think that we really need to be having a serious and real pointed conversation about what does this kind of safety net for women really look like and when are we going to get real about what that looks like if women are forced against their own will to go through with a pregnancy.
Farai Chideya:
So much food for thought, Madison, and of course, I can't help but think about the years in which people have said there needs to be paid parental leave, and yet this is the only developed country that still doesn't have it. So just one of many choices that we have ahead concerning what it is that we mean by having legal enforcement around reproduction as well as the support of government for people who are parents.
Madison Jacobs:
That's right. We need the support of government. We've got all of these laws that exist, that are supposed to help people in communities and marginalized people get the things that they need, and they don't get enforced. And then we have these other laws that are kind of... And in this case, we've got these sort of zombie laws or trigger ban laws that if they came up again, people would utilize the enforcement of those laws to harm our communities. We're talking about reproductive rights in this instance, but we've got so many laws that protect so many other civil rights that just people are not utilizing as a mechanism to help our communities get access to the things that they need. So really, it's important that we get the word out about what's going on. And my organization, Public Rights Project, from top to bottom, we're all really focused on this issue. And yeah, if folks want to support Public Rights Project, they can go to publicrightsproject.org/donate and reach out to us to give directly to our abortion access work.
Farai Chideya:
Thanks so much for joining us, Madison.
Madison Jacobs:
Thanks so much.
Farai Chideya:
That was Madison Jacobs, chief marketing and communications officer for the Public Rights Project. Coming up next, our weekly round table, Sipping the Political Tea, on the lived experience of abortion and the law with law professors Tiffany Jeffers of Georgetown and Michele Goodwin of UC Irvine. You're listening to Our Body Politic. Each week on the show, we bring you a round table called Sipping the Political Tea. Joining me this week is chancellor's professor at the University of California Irvine and author of Policing the Womb: Invisible Women and the Criminalization of Motherhood, Michele Goodwin. Welcome, Professor Goodwin.
Michele Goodwin:
Thank you so much for inviting me to your show.
Farai Chideya:
And we've also got associate professor of law at Georgetown University and Our Body Politic contributor, Tiffany Jeffers. Hi, Tiffany.
Tiffany Jeffers:
Hi, Farai.
Farai Chideya:
And I want to start out, before we dive in here, to take a minute to acknowledge the deep spiritual, physical, and economic pain that so many people are in right now. We're going to talk today about abortion access rooted in the lived experience of Black girls and women, and it's going to be heavy. And I sort of feel like what we do on the show is that we carry the weight, we acknowledge the weight, we share the load, and we drop it when we can, and we keep on keeping on. So thank you both for joining us. And on that level, Michele, I want to thank you personally for being brilliant, brave, vulnerable. Not quite six months ago, you wrote an opinion piece for the New York Times. It's called "I Was Raped by My Father. An Abortion Saved My Life," and every word is a must read. You're so clear. What made you write this?
Michele Goodwin:
Right now, the United States Supreme Court is considering a case from Mississippi, and it's a case that involves a 15 week abortion ban. It makes no exceptions for cases of rape or incest. These are aspects now of law that we wouldn't have even seen five years ago. Now, to be clear, the Mississippi abortion ban has not gone into effect yet. I wrote this piece because it was a piece that needed to be articulated. Recently, there's been a leaked draft opinion from the United States Supreme Court that signals the dismantling altogether of Roe v. Wade. There has been a historic arc in this country that has never given any kind of compassionate deliberation to the lives of Black women, and now to see the specter of what is happening and the failure to engage with what, at the bottom line, lies behind these laws, there was the need to articulate. And because I have personal experience in this domain, I could speak directly to what that pain happens to look like, what that torture happens to be.
Farai Chideya:
Thank you so much for being willing to give us more perspective on your life's work as an academic and also lived experience. And both of you are legal scholars who are deeply embedded in the lived experience of being American, not just being Black or female, but being American. Tiffany, in some of my other previous reporting, I interviewed a woman who was forced to be a child bride in a white supremacist cult. And this is not the most common experience in the world, but sexual coercion of young women of all races happens in different ways and different reasons. My neighbor, as I was growing up, who has passed on since, was forced to marry her rapist. She was an elderly Black woman by the time I knew her as a child, and she was forced to marry her rapist. How do you, as a former prosecutor who has dealt with sex crimes, juvenile justice, many different things, and now a legal scholar, look at the playing field of what's happening with abortion access and abortion law against the backdrop of the lived experience of America, including race and gender?
Tiffany Jeffers:
So sexual victimization is so intersectional because it's psychological, it's physical, and it's emotional. And when you see young girls that have been victimized sexually, there are some instances where their abuser has done such a psychological transformation on them, that they don't see themselves as victims. And that's the scary and dangerous part of victimizing young children, young girls, is because then they become a party in their own victimization and their own assault. So that's been a difficult part in working with victims is helping them realize that number one, they're not to blame, number two, this was actually wrong. Some people don't see this as a crime because it's just been the way it is for so long. Black girls not being in possession of their own bodily autonomy for centuries in this country, and that even as we've navigated civil rights, that hasn't necessarily translated to bodily autonomy for young Black girls in significant, meaningful ways. And so if we can help stop victimization before it starts, I think that's going to make a bigger difference than solely working on helping victims recover after they've been psychologically and physically terrorized in this way.
Farai Chideya:
So let's turn to the leak draft opinion showing the Supreme court has voted to overturn Roe v. Wade. Now, this is a draft opinion, it's not final, but no one seems to be changing their mind. So likely within two months, the final ruling will be delivered. And in the draft, Justice Samuel Alito wrote "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division." Michele, starting with you, how did you process this opinion?
Michele Goodwin:
Well, first there's been much writing about the fact that there was a leak and that is highly unusual, and so that is a story, but it's not the story. The story is actually this draft opinion and what it contains. And this draft opinion has numerous errors and omissions and engages in the kind of outcome determinative cherry-picking that is discouraged even amongst law students. You have to deal with the full body of law. Now, you can argue against legal precedents, but you can't pretend they don't exist.
Michele Goodwin:
I think it's important that your audience understand that textualism and originalism is a contemporary feature. Let's start with the fact that in the opinion, Justice Alito refers to fetuses, he refers to unborn child. But here what's interesting, is that the constitution makes no reference to fetuses, embryos, or unborn children. None. And in fact, what the constitution does say in the very first sentence of the 14th amendment is that citizens of this country are people who are born. Now, that level of omission is absolutely glaring. The fact that he would reference the 14th amendment, but not its most crucial first sentence, given this opinion, says so much.
Farai Chideya:
You're listening to Sipping the Political Tea on Our Body Politic. I am Farai Chideya. This week, we are diving deep into questions about abortion and the law and lived experience with Michele Goodwin, the chancellor's professor at the University of California Irvine and host of the podcast, On The Issues with Michelle Goodwin. We've also got Tiffany Jeffers, the Our Body Politic legal contributor, associate professor of law at Georgetown University. First of all, if we were constitutional originalists, there would be no women voting, no women in elected office, and no female Supreme Court justices, so let's start with that originalism. And on top of that, from what I understand, the framework around childbirth in the founding of the country was around the British framework of life beginning at the quickening, about 18 weeks, about when one might feel a baby move. And so the framework of life beginning at conception is not something that I believe the originalists were familiar with.
Michele Goodwin:
Let's be clear as well. The originalists did not have sonograms, right? So this whole idea about here's what they perceived is just absolutely inaccurate. As they say, the pilgrims were performing abortions, the indigenous people on whose lands we are recording practice all manner of birth control, abortion, carrying pregnancies to term, all of that.
Farai Chideya:
And turning to you, Tiffany, still sticking with Justice Samuel Alito writing "Roe was egregiously wrong from the start," what sticks out to you about the draft?
Tiffany Jeffers:
What sticks out to me is the historical dishonesty in the opinion, the poor reasoning, the logical leaps and liberties that are taken, the analytical flaws in reasoning, but also Justice Alito's efforts to go overboard in ensuring that no other privacy rights are in danger, which I think is also dishonest based on the way he wrote this opinion, framing it around explicit rights, originalism, and textualism within the constitution, but then to say that no other non-explicit rights are in danger, so people shouldn't be alarmed. And to frame that as hysteria within the opinion is a form of gaslighting and intellectual bullying.
Farai Chideya:
And Michele, obviously you are author of Policing the Womb: Invisible Women and the Criminalization of Motherhood. Tell me a little bit more about how the scope of your work relates to this question of what rights women have when women are birthing parents.
Michele Goodwin:
The story that we know is that this is a country that's been satiated on, and at different points, addicted to the pain and suffering of Black women. And when it's no longer been satiated by or fed by that kind of terrorism on Black women's bodies, then it's just been so deeply normalized that that's just simply the norm, tolerating the way in which politicians regard and describe Black women as historically crack moms, welfare queens, all these various kinds of things, these kind of denigrating ways of capturing, quite inaccurately, who Black women are as mothers. But in the book, what I do is I unpack that, but also it's been happening to poor white women across the country.
Farai Chideya:
There's an argument that's being made on the right that abortions are detrimental to the Black population. For example, you've got T.W. Shannon, who's a Senate candidate in Oklahoma, a Black man who wrote in a Fox News op-ed that, quote, "The same race hustling, mostly rich and white Democrat politicians who have been telling Black Americans for 50 years that all conservatives hate them, proudly support an organization that is single-handedly responsible for the deaths of more Black people than the Ku Klux Klan." And that organization in his writing is Planned Parenthood. What do you make of that argument, Michele?
Michele Goodwin:
There's been histories of flat out misrepresentation and lying to paper over the injustices that have been experienced and inflicted on Black people. It's absolutely undeniable that Black women were reproductive chattel in this country, relegated to the status of property, not allowed the status to even be parents to their own children. That is the history. This kind of reference to Planned Parenthood as being responsible for and starting up as a means of destroying Black communities is absolutely inaccurate. And actually, at the end of the day, these are about their efforts to win campaigns and to get people to vote for them.
Farai Chideya:
Well, let me bring you in, Tiffany. As Michelle has been talking, I've been thinking about a couple of different things. One are the stats on Black women having the highest rates of abortions. Also, three times more likely to die of pregnancy related causes than white women. I'm also thinking about your work as a prosecutor in dealing with juvenile justice, and I can't help but think how often Black women are blamed for Black children's deeds. And as someone who's had a very expansive life, I am well traveled enough and well networked enough to know how race and money affect the prospects of children and who gets treatment for mental health issues, who gets quietly disciplined after being violent, and who goes to jail for it. So I view it all as a spectrum of how Black women and all women may be blamed for having children that they didn't want to have and don't have the resources to raise. How do you make sense of that picture, particularly as it affects Black and BIPOC women?
Tiffany Jeffers:
The time I spent in the juvenile division, all of the juvenile cases came to the same courtroom. There was no separation of family cases and criminal cases. The delinquency and the family court was just one courtroom, so oftentimes, even if I wasn't trying a case or working through a deal, I'd sit in the courtroom and see what was happening with parental rights. Oftentimes in Baltimore, where I practiced, I think it's probably close to 65 percent of the family law cases that came through the juvenile system were Black families, and to see the way that the court had to navigate parental rights because of poverty and addiction issues, and it wasn't limited to the Black moms.
Tiffany Jeffers:
The blame of mothers because of the circumstances, the health crises that they found themselves in with relation to addiction issues was really overwhelming. Oftentimes, there was no father present in the room, and when there was, he struggled with his own mental health, substance abuse issues, poverty issues, health crisis, health challenges. And so it was a really sad experience to witness the lack of agency that those mothers found themselves in, and the desperation that the children faced was devastating to watch. And I think when this opinion comes out, even if the language is changed, what it's going to do to abortion access is going to just exacerbate these problems that are happening in local courthouses all across this country.
Farai Chideya:
Thanks, Tiffany. And what I want to end with is the national landscape, again. According to a new Politico morning consult poll, the majority of voters, 53 percent, say Roe v. Wade should not be overturned. 28 percent say it should be. And on Wednesday, the Senate blocked legislation writing abortion into federal law. So Tiffany, what are your final thoughts here?
Tiffany Jeffers:
My final thoughts, Farai, are I would say based in more hope than desperation because we've experienced the right and we're not starting from ground zero. We're not starting from scratch where we're fighting for the unknown. For 50 years in this country, women had the autonomy to control their decision of what happened to their body, and I think that having tasted those rights, when they're taken away, it's going to be a bitter fight to regain them, but I think we'll be successful. I'm hopeful. I put hope in the people because that's who's going to fight. It's going to be us. And so that's sort of what I'm holding onto these days.
Farai Chideya:
And Michele, your final thoughts.
Michele Goodwin:
Yes. I would agree with you, Tiffany, and that is we must not lose hope and we must not surrender our joy, and I think there's a lot to be learned from the victories that communities have had, Black communities, communities of color, farm worker communities who have prevailed over time. And I think that we're going to be in a time where we have the opportunity to get it right better than we have even before.
Farai Chideya:
Thank you so much, Michele.
Michele Goodwin:
Thank you.
Farai Chideya:
And thank you, Tiffany.
Tiffany Jeffers:
Thank you, Farai.
Farai Chideya:
That was Tiffany Jeffers, associate professor of law at Georgetown University and Our Body Politic contributor, and Michelle Goodwin, chancellor's professor at the University of California Irvine and author of Policing the Womb: Invisible Women and the Criminalization of Motherhood. She's also the host of the podcast On The Issues with Michelle Goodwin.
Farai Chideya:
Thanks for listening to Our Body Politic. We're on the air each week -- and everywhere you listen to podcasts.
Farai Chideya:
Our Body Politic is produced by Diaspora Farms. I'm the executive producer and host, Farai Chideya. Our Co-executive producer is Jonathan Blakely. Steve Lack produced this episode. Bianca Martin is our senior producer. Bridget McAllister is our booker and producer. Emily J. Daly is our producer. Our associate producer is Natyna Bean.
Farai Chideya:
Production and editing services are by Clean Cuts at Three Seas. Today's episode was produced with the help of Lauren Schild. And engineered by Archie Moore.
Farai Chideya:
This program is produced with support from the Ford Foundation, Craig Newmark Philanthropies, the Charles and Lynn Schusterman Family Philanthropies, Democracy Fund, The Harnisch Foundation, Compton Foundation, the Heising-Simons Foundation, the BMe Community, Katie McGrath & JJ Abrams Family Foundation, and from generous contributions from listeners like you.