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This podcast was recorded on November 14, 2019
Michael Waldman: It’s now nearly half a century since Roe versus Wade, and in 2020 the Supreme Court seems prepared to undermine or even overturn that landmark ruling. It’s an unnerving time for reproductive rights in America. But is that the right way to think about it? There are new ways of understanding how women decide whether to bear a child, how families are created and sustained, and how the law affects all of that. It’s a new area of law and legal study — one that’s been shaped by social movements, politics, and the courts. To trace its evolution, a group of top legal experts collected stories about 12 pivotal cases and published them in the book, Reproductive Rights and Justice Stories.
Kate Shaw, a professor at Cardozo Law School, has an expansive view of the field.
Kate Shaw: The vision of reproductive justice is one that asks about maybe even government facilitation of access to safe and healthy pregnancy and childbirth and child care. And that is, of course, attentive to dynamics of race, class, sexuality, language, disability — sort of all of the impediments to kind of full access to the range of necessary means to this fulfilling kind of intimate and family life.
Michael Waldman: Melissa Murray, a professor at NYU School of Law, connects reproductive rights to social justice.
Melissa Murray: To link up these economic justice movements with reproductive rights and justice opens up a whole array of different possibilities. Not just about abortion, but about contraception, about access to contraception, about sex-ed, and just sort of general access to the education system, about employment protections.
Michael Waldman: Reva Siegel, a professor at Yale Law School, sees an opportunity to reframe family values.
Rava Siegel: It frees up progressives to begin to say that they, too, have an interest in protecting life. Because in fact, across this whole range of contexts, what is it that this agenda is about but supporting women and families in caring, and all the ways that they're interested in caring and supporting family formation, supporting people in sort of realizing their intimate choices?
Michael Waldman: This is Brennan Center LIVE, a project of the Brennan Center for Justice at NYU School of Law. I’m Michael Waldman. This program was recorded in November of 2019.
Melissa Murray, Kate Shaw, and Reva Siegel are joined in conversation with Rebecca Traister, who is writer-at-large at New York Magazine.
DISSOLVE TO CONVERSATION
Melissa Murray: The idea of reproductive rights and justice is not necessarily new. It's something that's been around since the 1970s. A Black feminist really pioneered this. Sister Song, and organizations like that had a lot to do with it. But in the law school and the world of red-covered and blue-covered casebooks, it was really an anomaly. If we talked about reproduction, it was really in the context of abortion. It was usually stuck in the interstices of constitutional law, possibly family law. But there's more to this question of reproduction and reproductive capacity than how to prevent pregnancy or how to terminate a pregnancy.
And in 2013, my colleague at Berkeley and I … Her name is Kristin Luker, and she's done amazing writing on abortion and sexual education and the regulation of sex. She came to me and said, "We have to write a casebook. We have to make this part of the field of law. And the only way we can bring it into the legal world, into the academy, is to write a casebook." And honestly, that's really depressing when you think about it, but she was right.
By having a casebook, it legitimizes the field, it makes it possible for the field to be taught in law school, and it allows for the next generation of advocates to be trained. So we really focused on this. And the book that we wrote in 2014 — and then the book that Reva and Kate and I put together in 2019 — thinks about it. Not just abortion, not just contraception, but all of the decisions that go into the organization and arrangement and creation of intimate life.
So it is a necessarily urgent and broad project, and one that we were really excited to bring into the academy. And one that Reva and Kate and I were excited to make accessible by telling the stories of these cases — some of which are quite familiar, some of which are not — in ways that make clear the stakes for reproductive rights and justice for everyone.
Kate Shaw: We think traditionally about reproductive rights as a freedom from certain kinds of government control, and reproductive justice has kind of a more capacious, but also a more affirmative orientation.
The vision of reproductive justice is one that asks about maybe even government facilitation of access to safe and healthy pregnancy and childbirth and childcare. And that is, of course, attentive to dynamics of race, class, sexuality, language, disability — sort of all of the impediments to kind of full access to the range of necessary means to this fulfilling kind of intimate and family life. So kind of a “freedom to,” rather than just a “freedom from” framework. I think is one additional element of what we think of as reproductive justice, not just reproductive rights.
Reva Siegel: One thing that you see by drawing back the lines of analysis and not just focusing on the law of contraception or the law of abortion, but looking at something like the life cycle and asking, “What are all the ways that law impinges on — empowers or disempowers — people in their intimate and their family lives?” And really beginning to notice the many kinds of law that both empower or disempower people in the ways that they connect with, form relationships, bear and raise families.
When you start noticing all of that, then you can begin to ask questions about really what it would mean to have something like an equality law in this area, and to think about that question in a genuinely intersectional way that made a difference in lots of people's or communities' lives.
So, we definitely look in all of these cases at stories about change in courts. But we look at change that starts outside of courts and in government — for example, representative government — as well as courts.
Rebecca Traister: Melissa, I want to start with you. Your chapter is the first in the book, and it concerns one of the cornerstone cases that I think is one of the better known cases, Griswold v. Connecticut, which was a Supreme Court case that in 1965, made contraception legal for married people. As somebody who's written a book about unmarried women, I want to note that it wasn't until 1972 that an entirely separate case made contraception legal for unmarried people.
And you write about it from a perspective, because part of the process was a decriminalization. It wasn't just the expansion of liberty. It was actually the decriminalizing of the use of contraception. And I was wondering if you could talk a little bit about looking at a case like that from a criminal perspective, taking into account criminal law.
Melissa Murray: My chapter is on Griswold versus Connecticut. There are a lot of constitutional law cases that I think many of the law students will be familiar with: Eisenstadt, Loving, Lawrence versus Texas. These are all criminal law cases just like Griswold, we just never think of them in that way. And in my other writing, I talked about the way in which the legal regulation of sex has in large part, throughout our history, been done under two rubrics: crime and marriage. Like so, sex that was lawful was in marriage, and sex outside of it was always criminal, for the most part.
If you think about Griswold in that way, the case is even more illuminating and goes really far beyond simply identifying a right of privacy. Griswold is born of this larger criminal law reform effort, where the American Law Institute — the creators of the Model Penal Code — are actually thinking in the late 1950s, early 1960s, about whether or not the criminal law should be used to enforce moral and sexual conformity. And they come to the conclusion that it shouldn't. So, the Model Penal Code recommends that states no longer have laws criminalizing fornication. When I tell my students that it was actually a crime to have sex outside of marriage, they all look around, like, "Is this still happening?" I'm like, "Don't worry, everyone's fine. It's all good. You're all good."
But again, they were recommending that we stop using the criminal law for these purposes to enforce this kind of moral conformity. If you think about Griswold in that way, Griswold is part of that effort. And so if you think about it that way, Griswold is as much about privacy, and privacy is not simply about seclusion from the state, but actually designing true limits on what the state can use its authority to do. And one of the things Griswold said is it cannot be used to enforce this kind of moral conformity, where every episode of marital intercourse has the possibility of being procreative.
I mean, so if you think about Loving, that was about enforcing a kind of conformity around marriage — making it racially homogenous. If you think about Roe and abortion, that is enforcing for women this identity of being mothers. And so if you think about it in those terms, the element of social control becomes much more apparent, and I think much more terrifying. And so the rollback of Roe, I think if you view it through a criminal lens — and a lot of the more restrictive abortion laws that we're seeing are laws that re-criminalize abortion in particular ways — again, is not just about restricting abortion, but imposing a kind of state-level moral conformity, mandate for moral conformity.
Rebecca Traister: Reva, your chapter is about Roe. I want to ask you about the space between the way Roe was decided and the kinds of arguments that preceded it — not just in the women's movement, but through the civil rights movement, through a movement to address economic inequality, and the space between Roe, that precious thing that many of us cling to like Gollum and the ring … It's probably a real bad analogy … versus what some of those movements might have wanted that law to be.
Reva Siegel: So it was genuinely fascinating to do this deeper dive back into the world before the court ruled in Roe, which I've done more than once with my pal, Linda Greenhouse. This is a world in which more Republicans supported decriminalization than Democrats, a world in which the Southern Baptist Convention was not particularly opposed to decriminalization. It's just a different world than the world that we're in now.
So one of the things that we began to notice when we sort of started tracing the litigation history this time through is that feminists come late to the story. And, in fact, the arguments that are percolating through movement challenges to laws criminalizing abortion outside the actual litigation of Roe take different forms than in the Roe litigation itself. There are movement cases — a case called Abramowicz in New York State, a case called Abele in Connecticut — that actually are more experimental, more broad-based in the ways they challenge the criminal bans, than was Weddington in Roe.
They generally make claims on equality — economic equality, so equal protection class, equal protection race, and equal protection sex — and use these claims to illuminate the disparate health harms of a criminal abortion regime — the disparate effects on women's health and sexual and caregiving lives of laws criminalizing abortion in ways that the privacy challenge in the Roe case proper did not do. And the Roe opinion itself, with its focus on science, doctors, and medicalization, most certainly did not do.
And so, the stories told about why the Constitution prohibited the criminalization of abortion in the suits that were working their way up the pipeline at the same time as Roe had a more robust account of the constitutional harms of criminalization than the Roe suit did itself. And I'm just, I'm going to read you one line from the Abele brief, which had these disparate equal protection claims, and said that abortion laws are "both a result in symbol of the unequal treatment of women," and said that so long as "such a broad range of disabilities are permitted to attach to the status of pregnancy and motherhood, that status must be one of choice." So it's, in addition to all of the ways that it looked at race and class, it also looked at what it meant to be pregnant and what it meant to be a mother, and understood that as part and parcel of why it was wrong to coerce motherhood.
Kate Shaw: Can I actually jump in? There's a case called Struck versus Secretary of Defense that we have a chapter about in the book that I think really resonates with some of the account that Reva was just giving. And people haven't heard of it for the most part because it was never a Supreme Court case. But it was a Ninth Circuit case litigated by then litigator Ruth Bader Ginsburg, and she wanted this to be the first big abortion case that the Court took.
So in 1972, Susan Struck is a captain in the Air Force, and she becomes pregnant. And she is told that she can either have an abortion that the military will pay for, or she'll be discharged. That's the choice she has to make.
So at the time, government is not only not prohibiting — at least the federal government — abortion, it is paying for it. It is compelling members of the military to obtain abortions, or giving them some choice, but a very constrained choice between an abortion and a discharge. She doesn't want to be discharged, and she doesn't want to have an abortion. She is an observant Roman Catholic, and so she files a lawsuit. And the military, after some losses, changes its policy and moots her case.
But Ginsburg's brief in that Ninth Circuit case, and then before the Supreme Court before the case was mooted, does sort of weave together a lot of the themes that don't really get realized in the Roe opinion. So this is both — it's sex discrimination. The person with whom she had the affair was also a member of the military, suffered no consequences whatsoever. It's a case about pregnancy discrimination. It's a case about impingements on reproductive autonomy in the opposite direction than the one to which we are accustomed.
Government control over reproductive autonomy can move in two directions. If government can prohibit abortion, government can compel abortion.
Rebecca Traister: You're talking about pregnancy discrimination being an issue in the Struck case. But the chapter that you write in the book is actually about a more recent case: the 2015 Young versus UPS case, which was a pregnancy discrimination case. And one of the things that Kate writes about that I'd like you to talk about is how the issue of pregnancy discrimination itself sort of offers one of the few points of potential optimism for the immediate future, because it brings together unexpected and disparate coalitions of people on both left and right, and a kind of unusual combination of liberationist and protectionist feminism.
Kate Shaw: In the 1970s, right around the time that the Court is handing down Eisenstaedt and Roe, the Court hands down some decisions expressly declining to protect pregnancy. So first, it finds that Equal Protection Clause of the Constitution doesn't protect a woman against pregnancy discrimination — that pregnancy discrimination is not sex discrimination under the Constitution. So feminists say, okay, we're going to try to bring this as a statutory claim. So they bring a claim under Title VII of the Civil Rights Act that prohibits employment discrimination, including on the basis of sex. And the court, on almost identical logic — which is basically that, well, policies that restrict the employment prospects of pregnant women or pregnant people … Pregnant women is, of course, the logic at the time — aren’t sex discrimination, because they simply draw a distinction between pregnant persons and non-pregnant persons. And the latter category has both men and women in it. So, it's not actually a sex discrimination problem.
So that … Having essentially failed both under the Constitution and under existing statutory law, feminists turn their attention to the legislature. And that is, I think, another theme that sort of echoes throughout the book, which is that these different spheres in which constitutional values are expressed and meaning is shaped and made include the legislature — that’s state and federal, but here we're talking about Congress. So, this interesting coalition that Rebecca alluded to sort of forms to propose an amendment to Title VII, which is the Pregnancy Discrimination Amendment. And so it's both pro-choice feminists, including a lot of feminist law professors, and some pro-life actors, including sort of self-identified pro-life feminists, who take the position that if pregnancy were facilitated at work, many women would not opt to obtain abortions. They would carry pregnancies to term.
These are folks who I think diverged on quite a lot of matters of equality and liberty, and yet agree very strongly that workplace protections should be created under federal law for pregnancy. And so, they worked together to draft the Pregnancy Discrimination Act of 1978. But the Supreme Court doesn't weigh in on it, at least very much, really, until 2015. And it's a law that goes largely under-enforced in the lower courts. So despite this protection … so Title VII is amended to make clear that discrimination because of sex includes discrimination because of pregnancy. And in a separate provision, basically says that workers who are … who suffer some disability on the basis of pregnancy shall be treated no worse than other workers who are similar in their ability or inability to work. If you're an employer who doesn't do a lot to accommodate workers who have limitations of any sort, you basically get a free pass for not accommodating pregnancy.
At least, that's the way lower courts interpret this provision really until 2015. And the case Young versus UPS involves a UPS driver who becomes pregnant. Her doctor recommends that she not lift more than 20 pounds for the duration of her pregnancy. She's had a couple of miscarriages already. And UPS tells her, "Sorry, you can't take a light duty assignment. We only allow those for people who have ADA disabilities, or who have lost a commercial driver's license for some reason." And literally that was any reason: DUI, sleep apnea, anxiety. You could lose your CDL, your commercial driver's license, for any of those reasons, but not for being pregnant.
And she brings a challenge to the district court and loses there, loses in the Fourth Circuit, because again, this logic of comparison really defeats her. And she wins in the Supreme Court. And it's a qualified victory in that it doesn't make some really strong statement about employers' obligation to protect pregnancy or to accommodate pregnancy. But it does say, employers, if you accommodate some other workers, you have to basically do the same thing for pregnant workers — that they require some kind of accommodation.
It's both a coalition at the passage level, and it's a coalition at the litigation level. So Young's lawyers are a very liberal law professor and a quite conservative practitioner, who very much identifies as a pro-life feminist. The two of them are the sort of the odd couple that litigate and win the Young case in a way that sort of echoes this coalition that was forged to pass the law in 1978.
Melissa Murray: So the Pregnant Workers Fairness Act would introduce a different model, and I think the logic of the Pregnancy Discrimination Act of 1978 really is sort of a classic comparative discrimination model. In order to prevail, the burden is on the plaintiff to show that he or she has experienced discrimination that would not have happened if they were … to someone who is similarly situated.
The model that the PWFA is looking for is really more like the Americans with Disabilities Act, which doesn't seek to compare modes of discrimination, but rather is an affirmative right to accommodation.
Interestingly, there has been a sort of competitor to the bill that's been introduced in Congress, as well, by two Republican members of the House. And essentially what this competitor bill does is basically codify Young versus UPS. And it does so on the auspices that this will be better for small businesses. So again, the same sorts of tropes about disability law — accommodating pregnancy being bad for business — is being used again.
Rebecca Traister: The state level bills can really be useful.
Reva Siegel: The Court decided a case called Whole Woman's Health, which was the last large victory — the Texas TRAP law case, which the court decided before Justice Kennedy left the court. The entire litigation was around whether the state could claim that it was interested in protecting women's health when it restricted abortion in a way that it didn't restrict any other similar health condition.
So pull back the frame and look at states with an appetite for abortion restrictions around the issue of, I don't know, sex ed, or contraception, or the Medicaid expansion, or pregnant worker fairness, or any number of other ways that one could support life. And one suddenly sees that states that assert an interest in life in the one context often, often are laggardly — if not all the way at the bottom of the list — comparatively on these other policy measures. So —
Rebecca Traister: Shocking.
Reva Siegel: Shocking. I'm shocked. I'm shocked. And so they're sort of two, two... There's two ways that one can press this pro-choice life analytic. One is critical — that in fact, the states that have an appetite for abortion restrictions in these settings — sort of the New Right configuration where there's a high appetite for abortion restrictions but an unwillingness to support women's choices in that other whole policy envelope … In those settings, you can look at it to press the choices and say, look, that interest in controlling women's choices is not actually an interest in protecting life, because it's not consistently pressed. Everywhere else, you're elevating an interest in property or controlling sex or something like that. So this is interest in controlling women, not an interest in protecting life.
It frees up progressives to begin to say that they, too, have an interest in protecting life. Because in fact, across this whole range of contexts, what is it that this agenda is about but supporting women and families in caring, and all the ways that they're interested in caring and supporting family formation, supporting people in sort of realizing their intimate choices? So in that respect also, it supports a positive agenda.
It allows you to reach out to communities that may not agree with you on the abortion question, and talk about change across that whole range of issues where you might find partners for coalitions for change, purple states, Pregnant Worker Fairness Act, possibly sex ed, or contraception or something of the sort where you can't do agreement around the abortion question.
Rebecca Traister: I think that the dissonance between the language and thinking around life, versus what it actually means to have policies and laws in place to support life, it's … Reva said that the states that are at the top are often in one category or the bottom of the other. If you look at the states that have recently tried to pass the most restrictive abortion laws — so Alabama and Georgia — they are in the bottom for when it comes to rates of infant mortality, with rates of 7.4 infant deaths per 1000 live births in Alabama, and 7.2 in Georgia.
Whereas, the states that have the most access to abortion services are also the ones with the lowest infant mortality rate. These are the states where there has not been Medicaid expansion, where there are high rates of poor maternal health, poor maternal mortality rates. And so, I just … I think that that dissonance is something that is so crucial to get to the heart of. How would an Equal Rights Amendment shift this field of law?
Reva Siegel: One thing I want to say about an ERA is that it's been around in one form or another almost 100 years. And one way of understanding what's going on here is that this came of age with at least the ratification of the 19th Amendment, which I note was not every woman's right, ability to vote. Nonetheless, it is a sign of the evolving status of women in the American constitutional order, and their efforts to right the many inequalities and imbalances of power in the American constitutional order.
One thing we might think about doing is passing the Pregnant Worker Fairness Act under Section V power and having United States Congress make that argument first, because they're likely to do it faster than John Roberts. But in any event, we were in a long conversation about questions of the 14th Amendment's coverage of reproductive difference around pregnancy. There's another question having to do with sexual assault and violence in the Morrison opinion. And an ERA could be a way of finally forcing different kind of protection, a more robust form of protection in those areas as well, where the Court still has been faltering the last 50 years.
Rebecca Traister: How can Congress interfere with liberal states like New York that have very strong abortion protections?
Kate Shaw: I think there is a view among a lot of scholars that if Congress wanted to prohibit abortion nationwide, that it could do that. That's a separate argument than the argument that the Supreme Court could recognize, as a constitutional matter, that the Equal Protection Clause protects fetuses, and thus constitutionalize a right against abortion on the part of the fetus.
For a long time, I think a lot of people both have and probably still do operate on the assumption that if Roe were overturned, abortion would remain legal in a lot of states, including New York.
Rebecca Traister: What should and what can state and local governments do to defend and expand reproductive rights? And I think I would broaden that and say reproductive justice expansion and protections, especially in states that have Democratic leadership on a legislative level. What is it possible to do as we look at a future where you're seeing erosion on a federal court level?
Reva Siegel: There was Republican control of the Congress and the presidency and there was not an appetite to do the very things you were describing. So there's some awareness of latent public response — a.k.a. backlash — that these kinds of measures would trigger. And in fact, the passage of the Alabama and other bans produced the kind of response that caused a real effort to back off. There's a debate within the Right right now about whether to move in an absolutist way, or to move in a much more incremental way and lull the public.
There are state courts and there are state legislatures that, like New York, has codified. And there are states … Even Iowa has, under its state constitution, recognized an equal protection ground for the right. And this is going to happen. And students who are here are going to go out and make those arguments in state legislatures and in state courts, and it will grow again. And this was a reason that this book exists — that people will know there was something that grew in the world, not just because judges said it was so, but because people went out, and they made arguments, and they connected with other people, and they persuaded other people, and told stories and the thing grew. And it has to happen again.
And when it grows again, there will be different people in places of decisional authority to recognize these claims. And they will get ground, and this is where connects up with the story about the 19th Amendment and the ERA.
Melissa Murray: Reva says she will not try on her Handmaid robe today. But it does connect to, I think, the work that you've done, Rebecca. What perhaps forecloses it from happening right now is this idea of women's incredible anger. I mean, it like … it is that backlash — that fear of backlash — that modulates some of this. I think it is that fear of backlash that keeps John Roberts up at night thinking about, how do you not have backlash, and to ensure the legitimacy of the court. And so, I mean, again, the anger that this will inspire … I mean, that's the only thing, I think, that's sort of keeping us together right now and keeping these in check.
Rebecca Traister: We’re talking about the anxiety over what we sort of know is coming — either dramatically or incrementally, depending on how Roberts wants to address what he knows will be the backlash — which is that in vast swaths of this country, Roe essentially doesn't exist now.
What is possible in those spaces that may or may not be directly about abortion, but about all of these others — from pregnancy discrimination, to perhaps the protection of contraception access, or maybe the reduction of contraceptive access? What is happening in these places where basically, abortion is already off the table for vast swaths of the population? What's the potential for growth and building anew in those places?
Melissa Murray: In all of these places where abortion access is limited, it is even more limited for women who are women of color, who are socio-economically disadvantaged, women who live in rural areas. I don't think that's just in states with restriction of abortion laws. I think that's true throughout the country. And that is an opportunity, I think, to think broadly about how reproductive rights and justice intersects with an economic justice movement. To link up these economic justice movements with reproductive rights and justice opens up a whole array of different possibilities, not just about abortion, but about contraception, about access to contraception, about sex ed, and just sort of general access to the education system, about employment protections. I mean, thinking about it on that kind of scale I think is a possibility that is rendered imaginable in this new climate.
Reva Siegel: We did this book for all of the young people in this room. The world can change and you will change it.
Michael Waldman: Thank you for listening to this episode of Brennan Center LIVE with Melissa Murray, Kate Shaw, and Reva Siegel, and our moderator, Rebecca Traister.
Please look out for Brennan Center events, follow us on social media, and sign up for my newsletter, The Briefing, at BRENNANCENTER DOT ORG. The Brennan Center LIVE podcast is available on our website and wherever you get your podcasts.