Pivot - Post-Roe America: Politics, Privacy, and the Court

Episode Date: June 28, 2022

Kara talks to three experts about the fallout from Dobbs v Jackson. First, Irin Carmon, Senior Correspondent at New York Magazine, joins to discuss the immediate impact on the front lines, Then, Amy Kapczynski, Professor of Law at Yale Law School, walks us through what may be next for SCOTUS. Finally, Evan Greer, Director of Fight for the Future, joins to discuss the fallout for tech and privacy. You can find Irin at @irin on Twitter, Amy at @akapczynski, and Evan at @evan_greer. Amy’s blog can be found here, and New York Magazine’s Abortion Guide can be found here. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Just go to Indeed.com slash podcast right now and say you heard about Indeed on this podcast. Indeed.com slash podcast. Terms and conditions apply. Need to hire? You need Indeed. Hi, everyone. This is Pivot from New York Magazine and the Vox Media Podcast Network. I'm Kara Swisher.

We're doing things a little differently today. Scott Galloway is recovering from minor surgery. You can all vote online on what you think that minor surgery is. We wish him well. Today, we'll hear from three guests who will help us understand what's next for post-Roe America. We'll hear from former Supreme Court clerk, now a law professor at Yale University. Amy Kepchinsky will also speak with activist Evan Greer about the fallout for tech and privacy. But first, we'll speak with New York Magazine senior correspondent Erin Carmon about the immediate impact of Dobbs v. Jackson. All right, you've been reporting on the front lines of this and you're pregnant now. Tell us what that's been like for you. Well, you know, I am pregnant by choice and happily. And even so,

I think being pregnant at a time where you're covering this encroachment on bodily autonomy by the state really drives it home. Because whether you want to be pregnant or not, it is an intimate, life-changing, profound difference every single day of your life. It starts with pregnancy. It doesn't end with pregnancy. Your very cell levels are changing. And so the idea of the state coming in and imposing this on someone either to be pregnant or to continue to be pregnant, to give birth, to parent, I think it feels very personal to me. It's always felt real to me. This is my second pregnancy with what I hope will be my second child.

But I think it also drives home what a violation it would be to have this imposed on you. Right, exactly. I agree. I've been pregnant. You wrote a moving piece about the trauma of giving birth, of course, and the er ratio of pregnancy in the Supreme Court's decision. Can you talk a little bit about that? He recites what the state of Mississippi found about fetal life. So it's an argument in favor of the fetus's humanity to supersede the right of the pregnant person to make a decision about the future. And in doing so, he says things like at six weeks, this happens.

At eight weeks, that happens. Some of it is frankly pseudoscience. But nowhere in there does it talk about the experience of the person who is pregnant. And so as I was reading this, I've read so many anti-abortion legal arguments, political arguments. I've been covering this beat for a dozen years, and it just felt so real to me. Again, being pregnant right now, but also just understanding that everyone is on a different path here, regardless of whether they choose to be pregnant or not, what circumstances change, what barriers they face. And so I said, you know, the last line in the Alito passage is assuming the human form by a certain period of time. And I wanted to reassert to say, I too

have a human form and the humanity of the pregnant person has been completely erased from this majority opinion, both legally and rhetorically. And it just felt like, let's get that back into the conversation. You can have sincere respect for fetal life, which is the phrase the Supreme Court used to use, but you also cannot erase the person whose life is already here on Earth. Yeah, actually, I just saw AOC tweeted, forced pregnancy is a crime against humanity. And the legal scholar Michelle Goodwin has a really great argument, which she developed in the New York Times op-ed page, about how the forced pregnancy is arguably a violation of the 13th Amendment. It's arguably forced servitude. And she places it in the tradition of African American women in this country being forced to carry out state

interests, create labor on slave plantations. And she argues that the state conscripting people to remain pregnant against their will, no matter what their individual circumstances, repeats that error and repeats that sort of constitutional misunderstanding. It's not just that the 19th century tells a story that Alito told us in that majority opinion. There were also other movements and arguments against slavery and for women's rights that were also part of our nation's history and tradition. So New York Magazine put together a guide of how to access abortion services and how to get an abortion across the country, which is tremendous. It's available in print and for free online. So what are some of the ways abortion care will change in the near term? You're already seeing people denying abortions in most of these states. Even the laws are moving very quickly, especially these trigger laws. So give sort of an idea for how will it change in the near term and then the longer term. So immediately, nine states have trigger laws on the books that say that if Roe is overturned, abortion is illegal. And then there are other states that have more ambiguity,

like they have pre-Roe bans still on the books, or they have restrictions that might conflict with each other, or they're going to pass them now. But we think that in 26 states, it's going to either be totally illegal or severely restricted to access an abortion. But what does that mean in practice when we still have all of the other states in which abortion is legal and accessible or trying to be accessible? What does it mean, for example, that now you can get an abortion pill set sent to you, medication abortion, the same thing that you might do in a clinic under the supervision of a doctor over telemedicine. You can get that mailed to you from somewhere where it's legal, whether it's Europe or a blue state here. How does the

law interpret that? How far will the state go in surveilling its citizens with their Google search history, whether they are seeking ways to end a pregnancy by themselves or whether they want to go to a doctor in another state. Currently, most of these laws focus on the provider. What happens when there is no provider? What happens when it's somebody taking the matter into their own hands? So one of the statements that was made in the majority opinion, also by Brett Kavanaugh's concurrence was that abortion has really torn our country apart. The Supreme Court created this big mess. It's our job to step away. But they're not going to be able to step away because there are so many questions now. So we

know, again, this is what's black and white on the page. How will a prosecutor enforce that? How will other states cooperate or not cooperate when they get a subpoena asking them to investigate an abortion provider? Well, some blue states are already passing laws saying we won't cooperate if this is a legal procedure. And we are in completely uncharted territory. And in the meantime, there are patients who had appointments for Friday, and they had appointments for over the weekend, they had appointments for Monday, and they're for over the weekend, they had appointments for Monday and they're stopping at red lights or they're being told literally while inside the clinic, people reporting from inside of these clinics have indicated that, you know, immediately they were told we cannot help you. And so that's a straight line you can draw from

that decision to what's already happening. And we're not done with where that line is going to take us. And so in the longer term, it will be a case of these states trying very hard to enforce their shitty laws, correct? Yeah, I think it's going to be interesting to see, you know, with these companies coming out and saying that they'll cover it for their employees, and they'll cover the travel for their employees. To what extent, you know, are these the individuals who need the most help? How is it going to reach those who need the most help? There are abortion funds operating in hostile states that have paused because they're worried that they're going to be prosecuted and they're trying to figure out under the law how this is going to work. So there's, again, we really don't

know how it's going to work. We also don't know how are tech companies going to respond to subpoenas given before Roe, we didn't have this kind of technological surveillance of people's search history or their email history. I've covered trials in which even in states, you know, even when Roe was in place and abortion was legal, there was a woman in Indiana who ordered abortion pills over the internet and her email and search history were used to prosecute her for self-inducing an abortion. And she spent a while in prison before she was freed on repeal. So to what extent will tech companies, I think is a really big question, cooperate with law enforcement when there isn't this kind of constitutionally mandated privacy around reproductive decision-making. Right, right. I suspect they'll not, they will fight them. That would be my guess, but who knows? Who knows? It's available lots of

places. So one, the court, it's been a court battle so far and there's going to be more, but you've written it's moving to grassroots organization. Tell us more about that and what group stands to benefit most and which are the most effective? Well, I think that there is a tendency to despair because this was the worst case scenario for people who support reproductive freedom. But there are still clinics on the ground in these hostile states that are trying to figure out how to help their patients, whether it's to help them go out of state, whether it's to consult with them about ultrasounds, pregnancy tests, miscarriage management, just resources that are unbiased and that are not just trying to talk them into one outcome versus another. And then again, there are abortion funds

in other states that are trying to help people in states where it's legal, trying to help people get out of their states. But I also, I have covered the anti-abortion movement for a really long time. And you could say one of the ways that they got here was luck and timing. They put all their money on Donald Trump to appoint Supreme Court justices, and they got three. They got the good luck of having Anthony Kennedy retire and Ruth Bader Ginsburg die during the Trump administration. They might not have been able to plan that, but in order to be ready to seize that opportunity, they have continued for 49 years to press this case, even though it

is deeply unpopular. And when they have lost in Congress and state houses, they've doggedly repeated and continued and tried new strategies, but also tried the same strategy over and over and over again. They have never taken their eye off this ball. And one of the flip sides of the Democratic coalition being so diverse, and Democratic politicians also having really complicated, sometimes squishy ideas about abortion, is that that has not happened on the other side. And there was always a faith that the Supreme Court would never go this far. Never do this. And would always be a backstop. Secretly, I think a lot of people just believed

John Roberts is not going to do that. He sort of did and didn't. And so looking to the anti-abortion movement's success with their laser focus on getting to this point, yes, the timing was fast and lucky because of, frankly, a series of tragedies and accidents, but also because this is one reason that a lot of people turned out and voted for Trump. This is what they wanted. And they wanted all of the other decisions that we're getting right now that are undermining separation of church and state, that threaten to undermine other protected rights, such as the rights of LGBTQ people and contraception access. And so I think organizing from the ground up is something that they have been doing all along. And so it's local practical support.

It's helping people. And then I think it's also making this an issue that matters to those who support reproductive freedom as much as it matters to those who want to restrict it. Well, let's finish up talking about the politics of it, because there's lots of areas this can go. Nancy Pelosi recently backed an anti-abortion Democrat, Henry Cuilar, in a primary fight. He won by less than 300 votes last week. Trump reportedly told advisors and friends the ruling will be, quote, bad for Republicans. And polls show that overturning Roe is a big motivator for Democrats to come out and vote. The same isn't true for Republicans. So how do you assess the political landscape right now? I don't think anybody on

the Democratic side should be complacent about it, because I think they have to show what they're going to do with their power. There's already a feeling, yes, they don't have a filibuster-proof majority in the Senate, but they do control both chambers. They do control the presidency. So if you look at, for example, the numbers among young people, they're pretty dismal right now. So I think showing that there is a plan is going to be really important. And there's already a lot of legal scholars and activists that are trying to put forward things that the federal government can do. And to some extent, Merrick Garland and Biden both came out talking about medication abortion. I thought that was a really important step.

But just a vote, I think, is not cutting it for a lot of younger people. And then I also think that there's an assumption that we saw in 2016, that white suburban women are going to turn out in droves out of disgust for either, that point Trumpism, Trump and now Trumpism. Like the way the legacy of the Trump administration is what we're feeling right now. And also the legacy of a very long social conservative movement.

But I don't think that that can be assumed because there is still there are a lot of other countervailing forces. And will it still feel as salient in November? And I think it's really up to the Democrats to make sure that it's not just salient, but also urgent and not just kind of something that people freaked out about it the last week of June and then they went on their summer vacation and they go back to whatever the issue du jour is. In September. Now, what are some of the responses? Pelosi has been under fire for sending out fundraising email within the hour of the Supreme Court's decision. I'm not surprised by that. AOC called the Democratic tactics, quote, unfocused nonsense and said the party

should message about actual measures, as you discussed. How many seats does the party need to codify Roe, for example? What do you think the most critical actions to be taken now are for the Democrats? In some ways, the Democrats have genuinely come a long way on abortion. There used to be actually many more anti-abortion Democrats in Congress. And now they are outliers, frankly, because most of them have been replaced by Republicans and redistricted and gerrymandered out of their seats. But that said, I think Nancy Pelosi has always been extremely clumsy in how she talks about abortion. It's clear it makes her uncomfortable. Some of the things she says really don't align with the talking points that the groups wish that she had, and they're kind of

like apologetic or confusing. You know, back in the day, she supported a CARVA for abortion coverage in the Affordable Care Act. And she has called, you know, she said the Hyde Amendment is something that she doesn't want to touch, which penalized poor women by not funding abortions. So I also, I understand it's not just now. It's a years-long legacy of saying when things look tough and when people are paying attention, we're here for you. But then when it really comes, push comes to shove and you're writing legislation and you have the power to actually get something done, where were you? Where were the Democrats when they didn't codify Roe v. Wade?

However, however, if Republicans get power, listen to Mike Pence. We were told by Kavanaugh's concurrence that this is just about restoring it to the states. So why is Mike Pence and Senate Republicans, why are they so interested in a national abortion ban? That doesn't sound like returning it to the states. And that doesn't sound like people in California and New York are going to be able to get abortions, which is what we're being told, that it's all going to be okay. And so as much as there needs to be a push from people who support reproductive freedom to their own side. But I also think let's not lose track of the Republican Party is what gave us Samuel Alito, Clarence Thomas long before Trump. to seize their opportunity to pass a national abortion ban and perhaps even personhood that could affect contraception, IVF, and reverberations that people now are calling scare tactics. But if

you look at their agenda, it's right there in black and white. I agree. 100%. So there's one thing Democrats can do right now. What would it be, Erin? I really think focusing on trying to get medication abortion through the mail safely because the FDA says it's safe, spreading information about it, trying to make sure that there's a federal preemption. in which the federal government can supersede some of these state laws to make sure that for as long as possible, maybe even until it goes back to the Supreme Court, individuals can still access the health care that they need. OK. All right. You can read Erin Carmon in New York Magazine and find her on Twitter at I-R-I-N. All right.

Thank you, Erin. Thank you so much. And we'll be looking forward to more of the things you'll be writing. Thanks, Cara. We're going much. And we'll be looking forward to more of the things you'll be writing. Thanks, Cara. We're going to go on a quick break. And when we come back, we'll talk with a friend of Pivot, Amy Kepchinsky, about what's next for the Supreme Court. Fox Creative. This is advertiser content from Zelle. When you picture an online scammer, what do you see?

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former clerk for justices Sandra Day O'Connor and Stephen Breyer. So let me just start about what this election says about the state of the court. Let's have sort of the high level. What this decision says. Yes. I mean, so I think what it says about the court is that you have a very emboldened five members with, I would say, fairly extreme views that's just starting to feel its power and that is willing to do things that are contrary to, I think, majority of Americans want to fulfill visions that they have of the Constitution, what it should mean, that are, I think, very much out of step. So, yes, I would say, you know, they're just starting to feel that power and exercise it

in some pretty frightening ways, in my view. And since you worked as a Supreme Court, how did these alliances coalesce, I guess, between and among people? Because Clarence Thomas has always sort of been on the outer edge even further than many of the justices. And then Alito is sort of next to him. They're often together. How do they coalesce with the rest, especially the three others?

Well, you know, the court's membership has changed. And so as the membership changes, you start to see the voting patterns coalesce in new ways. And so I think it's pretty clear now, for example, from this decision, that the middle voter on this issue is Brett Kavanaugh, and that you have Clarence Thomas, he wrote actually his own concurrence in this decision, saying where he'd like to see the law go. He has a very influential voice, not only because he's a very senior member of the court, but because he has a lot of former clerks who are out there in the judiciary, and he has a kind of a right wing megaphone also at the Supreme Court. People listen to what he says because of his seniority and also because of his movement kind of alliances, I would say. So you have people like Trump.

Also his wife. Also his wife. His wife is clearly an indication of that. That's right. So he takes on very aggressive positions in this case, and also often others that are often kind of a bellwether for where the most conservative aspect of the court would like to go. And I say most conservative because I think it's, you know, it's really would be wrong to think of Kavanaugh, for example, as the middle in some middle America kind of way. He's also very conservative, as you see from him joining this opinion. And so they form alliances and vote together, but do they always agree? Because that's one of the necessarily things is they haven't. They don't always agree. And I'll tell you, as a clerk at the Supreme Court, a lot of cases at the Supreme Court are not very interesting. They're highly technical. And you see all kinds of lineups on the court in these other kinds of cases that come to the court. But when you get these hotter political issues, that's when you start to see them kind of

really organized into voting blocks. And they're telegraphing now in these decisions, you know, sort of what they're thinking about and where they'd like to go. And I think that's something really important to pay attention to. And so on the other side are three of the justices. That's right. Sotomayor, Kagan. Sotomayor, Kagan, and Breyer.

And that will be replaced by Jackson, presumably. That's right. And then in the middle, really, is Roberts. Right, Roberts and Kavanaugh, you know, and I think, you know, what ends up happening on a court with nine members is, you know, if there's somebody kind of who's the fifth vote, they end up being what we call the swing vote. And so their views tend to matter. People actually kind of pitch arguments to them. And I would say right now that's Kavanaugh.

That's not the chief justice anymore. He wrote alone. There was a time before Amy Coney Barrett was on the court that he was more of a swing justice. And now I would say it's Kavanaugh who's distinctively to his right and does not think of the institutional kind of legitimacy of the court in the same way that the chief justice does. All right, we'll talk about legitimacy. Do you think opinion pieces say this is a blow to the Supreme Court's legitimacy? Can you talk to that? Yes, well, I think it's clear from what I just hear in my sidewalk conversations now. And I imagine, you know, people see, you know, saying to the newspapers that, you know, people didn't expect this. Many people in America felt like, you know, Roe was settled law.

Well, they said that in their testimony. Every one of these justices said it was settled law, so it's sort of reasonable to think that that's what they thought. And it had proved, I think, to be not uncontroversial, but something that most Americans support. And so I do think that such a rapid and full-throated shift, and you have to appreciate what this opinion says, right? It's not just that it overturns Roe, which is not just precedent,

but kind of what sometimes lawyers call super precedent, because it'd been affirmed many times, but also how they do it, right? What they say is we have to go back but also how they do it, right? What they say is we have to go back and look at history and tradition, right? So going back to look at a time when women didn't have the vote to ask, you know, such a fundamental question about women's bodily autonomy. And then also to sort of, you know, forge around in the history and find what they like, and then say, well, this is the right view of the Constitution.

Under that view, as far as we can tell from this opinion, you know, states can pass laws that don't have exceptions for rape and incest, that don't have exceptions for the health of the mother. There doesn't seem to be any real limit. Maybe the life of the woman will see about that. Right. Doctors are nervous about that. But, you know, it's a very extreme opinion in that way.

I think the thing that I also hope that, you know, people can see is that this is part of a broader kind of tapestry of what the court's doing. These kinds of decisions get a lot of attention, but other decisions get less attention. But they similarly, I think, are building on the same kind of, you know, the right wing has power on this court, and they're going to use it, and they're using it in many dimensions. And I think that this, among others, do really present a blow to the kind of legitimacy of the court, and to people's sense of what they can rely upon in the court, what they're willing to go after. So, for example, you know, this opinion says it's all about democracy, but that's not what their other opinions say. You know, just the day before, this is a court that overturned a New York

law about gun regulation that was more than 100 years old. And on the basis of a right that is not in the text of the Constitution in the way that they say abortion is not in the text of the Constitution, the right to self-defense to hold a handgun in public, right? This is a court that is actually very willing to use, to make decisions, including to strike down laws and say, hey, the Constitution, it's our way, you know, what we think governs. It's not that they're always deferring to what people would do at the ballot box. In fact, often they're not. Right. So activist judges, in other words. There's speculation that the court could come for marriage equality

and contraception acts. Is there any sign of that? You know, I know there's a lot of worry about Clarence Thomas and his concurring opinion wrote that his fellow justices should reconsider some historic cases around due process, privacy, and civil rights.

Griswold, married couples can use contraceptives. Lawrence, states can't ban same-sex acts. Gay marriage. Obergefell, very famous gay marriage issue. So where are those from your perspectives? They could be, right? They always could be, but- They always could be, but I think it would be really now very foolish for anyone to think that the rights gathered under this line of constitutional doctrine are safe. Because the same arguments that they use in the majority opinion, in fact, could be turned against these other decisions. And Clarence Thomas's concurrence, as you were pointing out, is very explicit about

this. He's effectively broadcasting, bring us cases, bring us the gay marriage case for us to reverse that one, bring us contraception cases. You know, possibly he wants to reverse loving, a case that allowed interracial marriage. So he's saying, bring us those cases. And one thing to kind of appreciate that most people might not kind of think about these 200-page long decisions, what are they doing? How do people read them?

You know, lower courts read those kinds of decisions. Activists read those kinds of decisions. And they say, hey, maybe now's the time to deny some marriage licenses. Court wants this case back. Let's send it back to the court, right? Maybe now's the time to pass that state law that will create some of a controversy that the court seems to say is part of the reason to overturn one of these old settled precedents, right?

So they're inviting. Thomas is inviting this. Are the other justices down for that? Because Alito said specifically, they're not down for that, correct? So what Alito says, I think, is, you know, quite careful in, you know, it's kind of some sort of legalese where he says, you know, this case just decides this case. This opinion shouldn't be understood to cast doubt on things not about abortion. You know what? Thomas agrees with that. He says, I totally agree. This doesn't cast doubt.

This case doesn't. But the logic does, right? And so they can say that, you know, there's also the question about how much you believe when they say this is settled law. That's correct. They said about Roe. So there's no reason to think that it's, you know. Dude, now the question you might also ask,

you know, being more of a realist about this, there's a court that has power. It's going to use it. Do they have five votes? It's not clear that Kavanaugh is going to go along with this. That's the person people are going to be watching. But then again, it wasn't clear Kavanaugh would go along with Roe, right? So I don't think anyone should feel secure about

this. That's what the dissent is saying. And they know this court as well as anybody. They say, do not feel secure about this. It absolutely could go. Now, the way Roe went was a period of conservative mobilizing. People think that Roe was like controversial in the day it was decided. No, it was actually a long project, right, of the conservative wing of the Republican Party. No, it was actually a long project, right, of the conservative wing of the Republican Party. Could you see gay marriage, for example, or contraception become now after, okay, the new issue to mobilize around? Absolutely. Not as easy.

Well, you think it's not as easy to mobilize around as abortion? I think that's probably right. But look at what's going on around us about CRT and trans kids and, you know, some groomer discourse, all that stuff, I think suggests that in fact there is appetite for mobilizing in a way that actually kind of follows the pattern of what happened with abortion. And I think there are people, Republican strategists will tell you they need a new issue to mobilize around. They do. So what are Democratic's options with the court in wake of this ruling? Pack the court is one of them, right? That's one. What stops Republicans from packing the court the next time they're in charge, for example? Well, this is one of the questions about court packing. You know, I think that there isn't anything necessarily that stops the Republicans from doing the next time they're in charge. So I think one has to think both about court packing and other ways of maybe curbing the power of the court. And there's a lot of proposals out there

about how to do that. But of course, one thing we have to do is win elections in the meantime. So I think, that said, if you win elections, you can both address the court's power. You can pack the court, you can do other kinds of court reform, or some people would say unpack the court given the stolen seat, right? But you can do other kinds of court reform. Or some people would say unpack the court,

given the stolen seat, right? But you can do other kinds of court reform. And you can also pass laws that would protect the right to abortion, for example, and protect other kinds of privacy. Right. But specifically with the court, the idea of packing it, where is that on the spectrum, from your perspective? On the spectrum of? Of doing something. I don't think, Biden has said he doesn't want to do that, correct? Biden doesn't seem to like the idea. And I think it is going to be something that will take, you know, take some real kind of build up to get there, because I don't think people are really used to thinking about the court as an extreme institution that needs to be kind of addressed with measures that we haven't used in a long time, right? And so I think that's kind of, it's going to take some time to get there.

But I have to say, I think if these kinds of opinions keep coming down, that is where this is going to go. It's not just even these opinions, it's opinions about voting rights, it's opinions about corporate free speech, right? Campaign finance. Some of those, I think the scariest part is undermine the voting process itself, right? And so then you got to win elections to undo what the court is doing. That's actually a very tricky setup. Right. So what about impeaching justices who lied about their position on Roe during their confirmation hearings? Congress members also called for Clarence Thomas to resign early this year when it revealed that he didn't recuse while ruling on January 6th issue that involved his wife.

Any possibility of that? I mean, again, I think if you had enough votes in the Senate, you know, again, a realist would say it's not an impossibility and there are going to be people calling for it. There are absolutely, you know, when the court gets very out of step, one thing you can look at is American history when the court gets very out of step with what American majorities want. We have seen before, you know, measures to change the size of the court. We've also have seen before, you know, measures to change the size of the court. We've also seen measures to, you know, sort of criticize the court in ways that can influence their decisions. You know, impeachment is very rare, but there certainly

is a constitutional process for it. And, you know, some of the things that we've seen, you know, these confirmation hearings are, you know, they're a dance anyway. You know, I think that's, you know, whether you're going to see people impeached, I wouldn't count on that, but you're certainly going to see calls for it. Calls for it. What about one proposal requires supermajority to invalidate federal statutes, the other one, very similar to the filibuster. Another one would call for term limits. Any of these? Well, term limits has gotten a fair amount of kind of play, I think. And that's because the reality is having people who could sit on this court for 50 years is, you know, very troubling from a perspective of a democracy.

So I think absolutely term limits are actually a fairly popular idea. And so term limits absolutely on the table. And I think things like requiring supermajorities to strike down statutes also, because, again, many of these cases are striking down statutes on the basis of, you know, sort of ideas about the Constitution. And how do you get to either of those things? So some of these things Congress can pass laws about, you know, and then people are going to debate, you know, does some of them require an amendment to the Constitution? Our Constitution

is incredibly hard to amend, but there are theories under which you could pass laws about many of these things just through Congress. So would the court strike those down? It's another possibility, right? And so this is one of the very tricky things about where we're headed. They can't strike down an amendment, correct? Well, they could interpret it in one way or another, right? I mean, so strike it down, no, you're not going to see that, but I don't think, but amendments also very, very hard, right? So what you're more likely to see is people trying to pass statutes, and then

the court may be saying yes or no to that statute. Likely, you know, those two are going to be interpreted through the same, I would say, sort of hyper-conservative lens of a court that likes the power that it has and plans to use it. Yeah, so hard to do that. So by turning this back to the states, my last question, has SCOTUS just unleashed legal chaos? Can states ban interstate travel and funding for abortions? Can states ban abortion pills and contraceptives? They can sure try, but does that mean they'll be successful? I would expect that that's what we see.

I mean, you know, when you think about the way that people think and argue about abortion in this country, people don't say like, I just don't want abortions in my state. You know, I don't care generally, but I just don't want them in my state. I think people feel, you know, that the anti-abortion groups clearly are looking, actually what they're looking for isn't even just a ban on interstate travel. It's more extreme things like fetal personhood, not just laws, but even constitutional arguments, right? And this is one thing, again, that I think this opinion opens the door to.

They talk about fetal personhood. And that if the court were to go this one step further and say a fetus is a, you know, has a full kind of personhood rights under the Constitution, then you couldn't actually have New York State or, you know, California allow abortions, then it would be against the Constitution. I mean, that's possible. That's where a lot of conservatives would like to go. So I think you'll both see attempts to push the court in that direction. And absolutely, I think a lot of now, you know, actually very complicated legal cases about whether you can ban the right to travel. What about just speech?

What about people promoting? What about, you know, the regulation of abortion pills, right? All of those things are going to come right back to the courts. And, you know, again, you can read some things that Kavanaugh is saying in his separate concurrence where he says, you know, I think that, you know, there's a right to travel in the Constitution, for example. And, you know, he's trying to sort of contain some of the chaos. He knows the chaos is going to follow and he's trying to contain some of it. That said, you know, again, what do you know about what exactly he would do in the next case?

I don't think we know very much. Know it all. So it could be chaos. Well, you know, that's what they want, right? And unfortunately, they broke it. Now they own it. That's right. They're going to have a hard time controlling California, New York, and all the aggressive actions they're going to take. That's right. And I also think Americans aren't, they don't really remember a world before Roe,

most people, right? And so are they prepared for women to be forced to give birth to the child of their father? I mean, that's what these laws, some of these laws say, you know, no exception for incest, no exception for rape. You know, what about the life of the mother? Are people prepared for that? That's also where the arguments are going to go. And stopping women from crossing borders, stopping information flow, all of that is where it's headed. And it's obviously a lot of conflict ahead of us and a lot of involvement from the courts,

whatever they say about wanting to stay out of it. So last question, how do you feel? Because I remember when I interviewed you recently, you were thinking this is exactly what was going to happen. You were one of the more not positive members of the group. more not positive members of the group? You know, it feels different to really see it, you know, on the page in the final opinion, but it is what I thought would happen when we saw the leaked opinion. And how do I feel about it? I think it's a really tough time. And because, as I say, like it fits together with a lot of other things going on, including things that make it very hard for majorities in this country to express their view. We know that there are majorities in support of against this opinion and in support of

abortion rights. But what's the vehicle that can actually allow us to express that view collectively? It's not obvious. And this court is part of that problem. And so it's a pretty dark time. It's one of the reasons I appreciate that people are paying attention to what the court is doing and giving over their time to listen to and follow these decisions, because it's going to be really important and people understanding and appreciating the power that the court has,

so that we can start to take on the questions of what to do about it. I think that's just really important. So, you know, that's where we got to go next. On some level, I think it's a very pricey decision for them. We'll see where it goes from there. Anyway, you can read Amy's writings on her blog. We'll put a link in our show notes. Thank you, Amy Kepchinski, for coming on. Absolutely. Thank you. We're going to go on a quick break. When we come back, we'll speak with Evan Greer about what this means for tech and privacy. As a Fizz member, you can look forward to free data, big savings on plans, and having your unused data roll over to the following month. Every month.

At Fizz, you always get more for your money. Terms and conditions for our different programs and policies apply. Details at fizz.ca. We're back. I'm joined now by Evan Greer. Evan is the director of Fight for the Future, a digital rights group that advocates for privacy and regulation of the tech industry. Welcome, Evan. Thanks so much for having me. So just in the previous interview, we talked about this idea of what will tech companies do. So let's talk first about privacy. There's online chatter about the risks of period tracking apps and stuff like that, but it's a wider issue. So what are the concerns throughout? What are the biggest concerns and are they valid? Yeah, I mean, I think this moment needs to be a wake-up call that the surveillance capitalist business model that has driven so much

of the tech industry over the last number of years has put us in a situation that's incredibly dangerous. And I think this really shows that that surveillance-driven, collect-it-all-and-sort-it-out-later model is fundamentally incompatible with basic human rights. And as you said, I think there has been understandable focus on menstrual tracking apps, but the reality is a random game on your phone could just as easily snitch out your location to law enforcement in a world where people accessing, providing, or facilitating abortions are being criminalized. And so we need to take a holistic look at the data collection practices of nearly every tech company and non-tech companies. Other companies are collecting all kinds of data about you as well. And we need both lawmakers and companies themselves to act immediately to take steps to reduce the amount of data companies are

collecting and storing so that it doesn't create this massive attack surface for rogue law enforcement agencies looking to persecute people. So let's start with tech companies. If they wanted to safeguard user data, do they have that ability not to be subpoenaed, essentially? Well, that's exactly right. Any tech company will tell you, we comply with legal requests in the countries and jurisdictions where we operate, right? And so the only way for them to avoid being complicit, essentially, in assisting law

enforcement and cracking down on people seeking reproductive health care is for them to make sure they don't have the data in the first place. They need to limit the amount of data they collect and retain in the first place. And for many companies, that means taking a good hard look in the mirror at their business model and asking themselves whether surveillance-driven advertising is really something they want to pursue for the long run. So a journalist asked major tech companies if they would provide law enforcement with their user data about abortions. None of the companies answered the question. Facebook, Twitter, Snapchat, TikTok, Google, Amazon, Discord, Verizon, AT&T, Mobile, Venmo, Uber, and Lyft. So what does that tell you? They haven't figured it out. I can't believe they didn't know this was coming. But what do you imagine they're doing right now? I hope that every single tech company is holding an emergency

meeting today where they are trying to figure out in good faith what can we do to limit the degree to which our tools and services will be weaponized against people seeking and providing abortions. That's my hope. That's my optimistic hope. I know there are people who work for these companies who care. And I think we need the largest companies to lead the way. Fight for the Future issued a letter with more than 50 other organizations echoing the demands of 40 lawmakers calling on Google specifically to end its practice of unnecessarily collecting cell phone location data. They are collecting cell phone location data that, for example, Apple is not collecting.

They don't need to collect it in order to provide users with the service, they're collecting it to make a few extra bucks. And so those are the types of practices where companies really can start to clamp down. And rather than just saying, oh, we're going to help our employees move if they need to move, if they want to show that they really care about protecting people's basic reproductive rights, first and foremost, they should tell us explicitly and specifically what steps they're going to take to reduce that attack surface of government surveillance built on top of corporate surveillance. And then secondarily, they should tell us that they're going to stop spending so much money lobbying against common sense privacy legislation that would require them to do so in the future. Specifically, they employ tons of

lobbyists in states where abortion is likely to be criminalized very soon or already is. Maybe they should fire those anti-privacy lobbyists in those states if they want to show a real commitment on this issue. All right. Many companies, as you know, announced they'd pay for abortion travel, say there's much bigger steps they should be taking, as you've noticed. After Texas banned most abortions last year, Match Group, Tinder, Hinge, and OkCupid announced it would pay for employee abortion travel. But Match Group also donates to the Republican Attorney General's Association, which is a hand in the Dobbs case. How do they separate those two? They have lobbyists pushing anti-privacy stuff. They've got subpoenas coming in, and they sort of virtue signal that they'll pay for their employees to travel to get abortions, which could very well be legal,

for example. Illegal, excuse me. Yeah, absolutely. And again, that's why I think we need to look at this as a holistic problem, and tech companies need to think holistically. It can't just be, oh, well, our PR people are going to tell everyone about all the nice stuff we're doing for our employees, and our tech people are trying to figure out if there's anything we can do, but really we don't want to because we want to keep collecting this data and making money off of it. I think if they want to show a real commitment, then we need to see real action. Actions speak louder than words. It needs to be said over and over. So also, what are the pricey implications of telling your employer that you need an abortion?

That's on record. Sure. No one should ever have to disclose such a thing to their employer. You know, that alone, of course, violates that person's privacy. And so, and another thing, just specifically, I saw one of the labor unions tweeting about the fact that the Google policy only applies to their full-time employees. It doesn't apply to their contractors, who are the folks on their workforce who are most likely to actually be in need of that kind of support. And so again, I do think that, you know, well, if I worked for one of these companies, I would certainly be grateful for

to know that. If I worked for one of these companies, I would make enough money that I could probably move myself and my family if I needed to. And so if these companies want to show, again, that they're actually supporting the people who are most vulnerable, who are most likely to be in distress right now trying to figure out what they are going to do, then they need to be taking more serious steps like trying to end some of these privacy violations, like getting more real, and like you mentioned, perhaps stopping contributing so much money to politicians who are trying to undermine people's reproductive rights. So how will this change the Republican approach to social media regulation?

On one hand, Republicans will pressure tech companies to censor information about abortion access. On the other hand, they're also telling these platforms to leave up user posts. Typical? Yes. What do you imagine that's what's going to happen now with them? Because they've never been hypocritical a day in their lives. Yeah, I mean, unfortunately, that's the problem. I think Republicans largely have no issue with talking out of both sides of their mouth and saying censorship is bad, but this type of stuff should be censored because it's harmful for our kids or whatever it is that

they want to say. And so I think we need Democrats to sort of be the adults in the room on this one. And frankly, from where I'm sitting, this moment should be a wake-up call for Democrats, specifically on Section 230 of the Communications Decency Act. We've seen Democrats propose a number of well-intentioned but misguided proposals to create carve-outs in Section 230, basically because they want platforms to moderate more responsibly. That's their goal. But unfortunately, their proposals would lead to platforms moderating in a more risk-averse manner, which does not necessarily translate to a more responsible or humane manner. And so my fear, and what I think any sex worker could tell you from the wake of SESTA-FOSTA, is that if Democrats ever succeeded in creating some of these carve-outs

in Section 230, like they've proposed in, for example, the Safe Tech Act and the Justice Against Malicious Algorithms Act, you would see a wave of lawsuits targeting social media platforms, payment processors, CDNs, web hosts for hosting content where people are talking about accessing, facilitating or providing abortions. And that's not a theoretical concern, especially since we know that the right wing anti-abortion movement is lawyered up, they're highly litigious, and they are saying openly that litigation is one of their key strategies to shutting down people's access to abortion. And they would love nothing more than to see good information about

abortion access scrubbed from the internet. And they may succeed in doing that if Democrats help them by coming together with Republicans on some kind of 230 carve out, which I think becomes more of a fear if Republicans take the House, because we sort of know they've said that that's the direction they want to go on tech regulation, is let's poke holes in Section 230. There's other ways to have liability. That's how I put it to them when I go, hush, the 230. But there's other things you can do, such as privacy legislation, where

people can sue on that. So what is the one thing, last question, that you think has to happen right now? If you're running Google or Amazon or Facebook, what would you do if suddenly they had a different brain? I would call an emergency all-staff meeting. I would get all of my privacy and security engineers working on the problem of what data do we have that could be weaponized and used to prosecute, track, or monitor people who are providing, facilitating, and receiving abortions, and how can we get rid of it,

stop collecting it, and figure out a business model that's not reliant on collecting and storing that type of data? Because again, this situation shows that that's never going to be a business model that's not reliant on collecting and storing that type of data. Because again, this situation shows that that's never going to be a business model that's safe for vulnerable people. And so if they really care about vulnerable people, they need to find a new business model. Yeah, 100%. You know, the answer to that one is all of it. All of it could be used and weaponized. Anyway, Evan Greer is on Twitter at Evan underscore Greer, and you can find her work

at fightforthefuture.org. Evan, thank you so much. Thanks for having me. Well, that was a truly depressing show. I'm sorry Scott's not here, but it's not a funny time. So maybe that's for the best. Anyway, we want to hear from you, whether it's about abortion rights or about tech and business.

Go to nymag.com slash pivot to submit a question for the show or call 855-51-PIVOT. Okay, that's the show. We'll be back on Friday with Scott again, but we're not done talking about this. There's lots more to come. Today's show was produced by Lara Naiman, Evan Engel, and Taylor Griffin. Ernie Endredot engineered this episode. Make sure you subscribe to the show wherever you listen to podcasts. Thanks for listening to Pivot from New York Magazine and Vox Media. We'll be back later this week for another breakdown of all things tech and business. I will leave you with a quote from Margaret Atwood, who wrote The Handmaid's Tale. Sooner or later, I hate to break it to you, you're going to die. So how you fill the space between here and there, it's yours. Seize your space.