Strict Scrutiny - At Liberty: This Fall’s Fight Against Forced Pregnancy

Episode Date: November 22, 2021

In October, Melissa joined the ACLU's podcast At Liberty to discuss the state of abortion rights in Texas and the rest of the nation. We're thrilled to bring the conversation to Strict Scrutiny listeners as well.The Supreme Court is gearing up to hear challenges to some state laws restricting abortion, including a case from Mississippi that directly challenges the 1973 precedent set in Roe v. Wade. Given the court’s conservative super majority, many legal experts are warning that access to abortion may hang on Congressional action. The Women’s Health Protection Act, a bill that could legally enshrine the right to abortion care, passed the House on September 24th but faces a battle in the Senate.Melissa's co-panelists are Imani Gandy, senior editor at the Rewire News Group and co-host of the podcast Boom! Lawyered, and Alexa Kolbi-Molinas, senior staff attorney at the ACLU’s Reproductive Freedom Project. Molly Kaplan hosts. Follow us on Instagram, Twitter, Threads, and Bluesky

Hi there, Strict Scrutiny listeners. This is Melissa Murray. Back in September, I sat down for a conversation with Molly Kaplan, the host of the ACLU's podcast, At Liberty. Molly had convened a terrific group, including Rewire's Imani Gandhi and the ACLU's Alexa Colby-Molinas, to talk about all of the various threats against reproductive rights that are currently being litigated throughout the country and indeed will likely be litigated throughout the country in the coming months. It was a sobering conversation, but also one that really was hopeful, emphasizing the work that is happening on the ground to try and preserve access to reproductive health care for all persons. So please sit back and enjoy

this very special episode of Strict Scrutiny in conjunction with At Liberty. From the ACLU, this is At Liberty. I'm Molly Kaplan, your host. 2021 is shaping up to be one of the most devastating years for abortion access in decades. State legislatures have enacted a blitz of new anti-abortion legislation. As of September 1st, when Texas's six-week abortion ban went into effect, abortion has become functionally illegal in the state. The law, which deputizes citizens to sue anyone involved in abortion care, has emboldened other states to introduce copycat bills, threatening to make it near impossible to access an abortion in parts of the country. The Supreme Court is gearing up to hear challenges of some of these state laws,

including a case for Mississippi that directly challenges the 1973 precedent set in Roe v. Wade. Given the court's conservative supermajority, many legal experts are warning that access to abortion may hang on congressional action. The Women's Health Protection Act, a bill that could legally enshrine the right to abortion care, passed the House on September 24th, but faces a battle in the Senate. To discuss the state of abortion rights and to preview what's to come this fall, we're joined by three experts leading the legal dialogue. Melissa Murray, constitutional and family law professor at NYU Law and co-host of Strict Scrutiny,

Imani Gandhi, senior editor at Rewire News Group and co-host of the podcast Boom Lawyered, and our very own Alexa Colby-Molinas, Senior Staff Attorney at the ACLU's Reproductive Freedom Project. Welcome to At Liberty and thank you all for joining us. Thank you for having us. So there's obviously a lot happening right now. Can I ask for your individual 6,000-foot take on the state of abortion rights in this country? And Melissa, why don't we start with you? I think it's as you said, Molly, there has been a blitz I think anti-abortion activists expect to have a more hospitable reception. But to my mind,

what has really become, I think, most pronounced is not only just sort of the spate at which these more aggressive laws have been passed, but that we are now becoming normalized to them, almost anesthetized to them. So there is a current challenge that Alexa will talk about, pending before the court to a Mississippi 15-week ban on abortion. And there, of course, is the six-week ban that is in effect in Texas. I think one of the things that that six-week ban has done has made the Mississippi ban look reasonable,

even though it is patently unconstitutional. So by being more assertive and aggressive in these restrictions, abortion opponents have managed to shift the Overton window in a way that I think was almost unthinkable two or three years ago. Imani, how about you? What's your take here?

I have to agree with Melissa. And since we're talking about Mississippi, I have to hearken back to the 2011 fight over personhood in Mississippi, because to my mind, this abortion rights fight is tied up in the fight for voting rights. For the past decade, there has been a strategic attack on voting rights, which has made it so that people who are most affected by these abortion restrictions can't seem to vote the people out who are trying to impose those restrictions. I think hearkening back to the personhood fight in 2011 is really key because that fight happened in Mississippi. There was this fight over personhood in Mississippi at the same time

that the fight over a voter ID law was going on. And at the time, there were a lot of reproductive justice advocates who were asking mainstream repro organizations for help in fighting both of them. And they were told no. Dexter, stop barking. I think your dog is really animated about this issue. Really wants in on this conversation. He really is. Every time I talk about abortion rights, he's like, yeah, I'm up. And so what I think, you know, it's, I think now it is great that there are so many organizations that have embraced the reproductive justice framework. I think it's a shame that that embracing of that framework didn't happen 10 years ago when we probably could have done something about it. Because as Melissa said, we've become so anesthetized to these restrictions that a 15

week ban seems reasonable. The fact that there are something like 14 states that have 20-week bans on the books seems reasonable, but they are as unconstitutional as the six-week ban. So I think we need to be careful about how we talk about these things and let people know that they're all unconstitutional. And this sort of gaslighting that's going on to make you feel like certain bills are less unconstitutional than others is really frustrating. Alexa, I'm wondering if you think that the feeling of being anesthetized stopped for a moment when the court said that the Texas law could go into effect. Because for me, at least, that really marked a turning point where I noticed that people seemed, at least temporarily, awake about this issue and about how serious it is that the Supreme

Court majority is not in favor of abortion access. I mean, I think that's exactly right. I think at that moment, it really did, I think, spark a lot of awareness in people. But there's a concern, like what Imani is talking about. A decade ago, we were looking at multiple fetal personhood ballot initiatives like that in and of itself, they were putting to an election in more than one state whether we were going to grant all legal rights to embryos and fetuses. And that also itself was a major flashpoint. It should have been sort of like a major wake-up call. And so I think sometimes, well, absolutely, I think what's just happened in Texas has really

captured people's attention and people are now focusing on this issue. There's a real concern that in a month from now, in six weeks from now, that's going to fade again. And Texas might be the most recent culmination of what's been going on, but with something like more than 560 laws, you know, enacted in the past decade. We didn't just get here overnight. And it's so difficult, I think, especially because whatever law can be boring. There's a decision or there's a stay and everybody, you get very excited about it for a second and then there's nothing else in the case that happens for another two months

and then people stop paying attention. So I just, I think there's a real concern, you know, when we talk about people being numbed, that like, how do we keep the sustained attention on this didn't happen overnight and it's not gonna go away overnight either. I think it's what's frustrating for me as someone who's not, you know, a litigator

and not a professor, just sort of in this weird activist journalist space, is that people in the reproductive rights movement saw this coming. And it seems like as a journalist covering the movement, it seems like the movement has been so reactive for so long that I hope that this sort of flashpoint forces people to become more proactive. Because even if by some strange miracle, you know, the Supreme Court says, okay, Texas, you can't really just outsource enforcement of the laws to just anyone. That's something you can't do. And hey, Mississippi, we're not going to kill the viability line just yet. Even if for some reason Roe remains, we're still living in a world

where most states only have one clinic. Some states don't have any clinics. States are super, super hostile. We still have all of these regulations. You know, the status quo is already terrible. And so I think that if the movement somehow survives this moment, there needs to be a real reckoning with how to move forward and how to be more proactive. Because the anti-choice movement, they're constantly changing tactics. You know, it was all concerned about the woman, women's health and safety, women's health and safety. Well, that doesn't really seem to be that big of a deal anymore. So now we're back to, well, we have to be concerned about the fetus and we're back to fetal personhood, as Alexa said. I just, I really hope that this is a moment where folks can think

about what to do to be proactive and to really meet the anti-choicers where they are, because they're moving all over the hill and we're just dying on one hill. And I actually want to come back to the access point. But first, it's worth mentioning that Texas and Mississippi aren't the only two cases before the Supreme Court. Alexa, you have in two weeks another case that you are arguing. Can you describe that case and how it fits into this larger picture? Sure. So that case comes out of Kentucky. It's called Cameron versus EMW. And while the legal question that is before the court doesn't have to do with abortion law, it's a very sort of

procedural legal question. It's a question about whether the Kentucky Attorney General can intervene in a case at the 11th hour or really the 12th hour, it was a challenge that we had to a ban on a safe and common second trimester abortion method. And we had won. Two courts had struck down this ban, which would have effectively banned abortion in Kentucky beginning at 15 weeks. And after we won the second time, the Kentucky attorney general, who was at that point not a part of the suit, tried to intervene, which is sort of a procedural mechanism that people who are outsiders or strangers to the lawsuit, you know, not a plaintiff, not a defendant, but a third party who wants to come in can try to use intervention to try to enter the litigation at this late stage? The stakes are obviously much broader than that. And for Kentucky and for the surrounding

area, because Kentucky really is, in particular for second trimester abortion, a haven for many of the surrounding states. I mean, there's still only one clinic in Kentucky that provides second trimester abortion, but they provide for people in Tennessee and Indiana and West Virginia, as well as for Kentucky. And the question is really whether the attorney general is going to be given this chance to come in and try to revive a ban on abortion beginning at 15 weeks, just like in Mississippi, in Kentucky. And so, again, while the legal question is about sort of technical stuff, about intervention and jurisdiction and, you know, very sort of legal, you know, law school exam hypo kind of stuff,

the stakes are really much broader for abortion access. It's as much a case about abortion access as Mississippi or Texas is. I'm curious, how meaningful is it that there are three cases before the Supreme Court? In my 10 years at the ACLU, there's usually one every couple years. This seems really unusual. Is this significant? I think it's significant, and they're coming up in different postures. We have one coming, Kentucky coming through this question of intervention. You have Mississippi as raising the question about Roe and whether or not the viability line is going to stand.

And then you have Texas coming through the shadow docket and is now there's another cert petition pending to try to bring the case before it. And probably DOJ's case in Texas is probably not far behind from the Supreme Court as well. So I think that that probably is unprecedented in terms of the number of active cases that are either being heard or considered by the Supreme Court all at the same time. I'm also really curious about precedent. And Melissa, I'm wondering if you can talk about this a little bit. You know, Roe v. Wade is the law of the land. And I'm not a lawyer, but my limited understanding is that you can't just wake up one day and decide, eh, sorry, I don't want that anymore. Even if you are a justice on the Supreme Court, can you describe

what precedent means in this case and also how some of the Supreme Court justices have started to cede the ground for a sea change. Deference to precedent is a hallmark of the rule of law. The whole idea of stare decisis is the idea of letting that which has been settled stand. And the Roberts Court, I think, has been one that has been very expansive in its understanding of what it means to honor and defer to precedent and indeed what even is a precedent. And so we've seen throughout the now 15 plus years of the Roberts Court, a kind of incremental chipping away at precedents, calling precedents into doubt, casting doubt on certain precedents, and then coming back to them in subsequent cases to say, you know, we told you that this precedent was problematic.

We told you that there was a problem with this precedent. Still a problem. And then in the next case, well, we've told you in two cases that this precedent is a problem and it's out of sync with the rest of the jurisprudence in this area. So we're going to step in once and for all to make this coherent by overruling this precedent that we've now told you two times is a problem. That's a standard move for the Roberts Court. They have done it over and over again. They've done it in union rights most significantly, and it's just sort of a stock two-step. And I think we're seeing it now in the abortion realm more clearly. So there was a case

a couple of terms ago in 2016, Whole Women's Health versus Hellerstedt, which sought to inject a little more rigor and provide more guidance to lower courts as to what they were to do in assessing whether or not an abortion restriction posed an undue burden on the abortion right. and the Supreme Court had to actually balance and weigh the benefits of the law against the practical burdens that the law actually imposed on abortion access on the ground. And, you know, doing that weighing, if you determined that the burdens outweighed the benefits, then it was, you know, an undue burden and had to be invalidated. That was the law of the land. In 2016, it was decided by a five to three majority of the court. In 2019, a case appeared before the court, June Medical Services versus Russo, that challenged a Louisiana admitting privileges law

that was the virtual twin of the admitting privileges law that had been struck down in Whole Women's Health versus Hellerstedt. The only thing that was different about the court was that its composition had changed. Justice Scalia had been replaced by Neil Gorsuch and Justice Kennedy, who had been in the majority in Whole Women's Health, had been replaced by Brett Kavanaugh. When that case came before the court, it was a five to four decision, which the media trumpeted as a massive victory for reproductive rights. But I don't think it was much of a victory at all. In fact, what you had

there was a plurality of the court for justices led by Justice Breyer, who had been the author of Whole Women's Health, hewing to that Whole Women's Health balancing standards. So they did the sort of balancing that you're supposed to do. But the really important vote was the chief justice's vote. He joined the liberals there to form a majority, but he did not join Justice Breyer's plurality opinion, which was all about whole women's health. Instead, he went it alone and wrote his own separate opinion in which he said that his view of abortion rights hadn't really changed. He still thought that whole women's health had been improperly decided, but stare decisis demanded that like be treated as like. And so if that admitting privileges law fell, so did this one. And he said his whole decision was based on stare

decisis. But for him, the precedent to be observed and to be deferred to was not whole women's health decided just four years earlier, but rather Planned Parenthood versus Casey. And he said the only thing that Whole Women's Health did was actually reiterate and reinstantiate Casey's undue burden test. And that was the standard he was going to use. He wasn't going to weigh burdens and benefits. Instead, he was simply going to ask whether or not the challenged abortion restriction was a substantial obstacle in the path of someone seeking an abortion. And it was because it had been determined to be a substantial obstacle in the path of someone seeking an abortion. And it was because it had been determined to be a substantial obstacle in whole women's health. And so he was

invalidating it. Everyone cheered this as this massive victory for abortion rights. Roe had been saved. Abortion rights had been saved. No one saw that what he'd done was this amazing sleight of hand in which he'd basically sub Rosa overruled whole women's health versus Hellerstedt and reinstated Casey as the appropriate standard that needed to be deferred to. And, you know, there's a lot of discussion at the lower courts as to what should be followed. Is it whole women's health? Is it Casey? Many of the circuit courts are split, but I think his purpose was quite apparent. It was to undermine whole women's health, was to reinstate the less robust standard coming out of Casey, and to make it easier for states to pass restrictive abortion laws and have them be upheld in the lower courts and in the Supreme Court. I love that point from Melissa.

Robert sort of, you know, donned a monocle and was like, do we really want to say that they need to be weighing benefits and burdens? Or should we just go back to this substantial obstacle test that the court set forth in Casey? And the problem that I've had with the undue burden test generally, and particularly as the federal judiciary lurches rightward, is that the undue burden test and what's a substantial obstacle is such a subjective analysis that, you know, a Trump judge could look at the admitting privileges law that was at issue in June Medical Services and one of the laws at issue in Whole Woman's Health and decide, you know, it's not unreasonable for the state to require them to have admitting privileges within 30 miles. And sure, these doctors claim that they tried to get

admitting privileges, but how hard did they really try? So a lot of these rules don't really make a whole lot of sense as a legal matter, but they do give a lot of wiggle room to potentially incompetent judges that are sitting on the appellate court benches all across the country. Well, and I think that what a lot of this is really highlighting is that the other side, whether we're talking about courts or the people behind these laws, are playing a long game. We have the right. We've had it for almost 50 years and now puts them in the position to just try everything they can to take it away. And when you have nothing to lose and everything to gain, you could just keep hitting and hitting away. You can do this incremental and piecemeal strategy. And they will do something for 10 years before it works, but they keep doing it. We were talking before about the reason bans. I mean, I remember we at the ACLU, we challenged Arizona's reason ban on race and sex selection

abortions in 2013. Now everybody's talking about reason bans and this is, you know, Justice Thomas's concurrence. And now this issue is coming to the fore. I mean, they've had these laws around for a long time, these laws that ban abortion based on, you know, one reason or another. And they have been putting them into place. And we tried in 2013, we tried under an equal protection race discrimination theory to challenge Arizona's ban on race and sex selection abortions. And we we lost. They will continue to pass laws and to try different legal arguments and to issue decisions that even if they don't directly strike something down, chip away piece by piece and lay the framework for eventually another decision being able to overturn it. And I think that's something that we on our side have to keep. I mean, it's hard. It's hard because we're also trying to put out fires and it's hard to do two

things at the same time. But it's really been their strategy and a fairly successful one all along. But it's also because they view success in a more long-term way than I think sometimes we do. And so I think that's also something we really need to keep in mind. I also want to talk about race and economics and how it intersects with abortion access. And there are so many points on that note, but one area, Melissa, I want to start with is how the Supreme Court has sort of woven put it, race Roe, has really been Justice Thomas, at least the chief architect on the court. He's also been the most vociferous on the court in asserting the view that stare decisis should not require the court to defer to decisions that are, according to him, demonstrably erroneous.

What it means to be demonstrably erroneous is obviously not defined by Justice Thomas, but I assume it is those opinions that he thinks are not rightly decided, are unwetted to constitutional text, and are thus outside of the scope, in his view, of the Constitution and the entire line of substantive due process precedents, I think, are in that camp. Justice Thomas, in a 2019 concurrence in a case called Box v. Planned Parenthood, wrote a really interesting opinion. In Box, it was a challenge to two different Indiana abortion restrictions, one that required the funereal disposal of fetal remains, and another that was a trait selection law that prohibited abortion if undertaken for race selection, sex selection, or because of the identification of a fetal anomaly or disability. The court granted cert as to the funereal disposal provision and upheld the provision under rational basis review, but it denied cert as to the trait selection law, saying that it needed time for these kinds of issues to percolate in the lower federal courts.

Justice Thomas wrote a separate concurrence in which he said, you know, that's probably right. We do need some time for this to percolate, but we can't avoid this question of whether a state's modest attempt to avoid abortion actually vindicating its quote-unquote eugenic potential is actually constitutional. And he talked about these trait selection laws as what he termed modest attempts for the state to prevent abortion from being used as a tool of eugenic manipulation. And he then began to craft a kind of history in which he grafted the birth control movement and Margaret Sanger and the eugenics movement onto the history of abortion. And it was, I think, a very conscious effort to reshape the social meaning of abortion

from a tool that has been lauded as necessary for women's equality to being something that can be used for genocide, deracination, and indeed racial injustice. And it is a conscious attempt, I think, to change Roe's founding moment from 1973 to 1923 and the eugenics movement. The problem with all of that is that the history he's relying on is woefully incomplete, and he's actually cherry-picking the histories. The eugenicists were very exercised about their whole program of racial purity and racial supremacy, but their preferred method for dealing with it in terms of reproductive policy was actually forced sterilization. So Buck versus Bell, these colonies that sterilized individuals who are disabled or, quote unquote, feeble-minded or otherwise unwilling to sort of promote this idea of hardy white people, they had sterilized. And that was their preferred method.

Abortion wasn't on the table in their view at all. Actually, the racialized history of abortion kind of runs the other way. In the 1800s, toward the, like at the end of the Civil War, when the demographic character of the country was really changing because immigrant women were having children in numbers that far exceeded their native-born white counterparts, a number of physicians started to get really exercised about it. Again, sort of the interest in maintaining the democratic character of the country as a white Protestant nation really took over. And the interest in abortion was aimed at white women who they viewed as contraceptive or aborting in order to, as they put it, engage in voluntary motherhood and plan for families that were more manageable in size. And they worried that this family planning impulse that white women were engaged in was actually leading immigrant women to overtake them in the sort of birth race. And so the effort to criminalize abortion was very much about allowing white women to keep pace with their immigrant sisters and keep up the birth rate. But it was eugenical to the extent that it was about advancing the nation as a white

Protestant nation. But it wasn't the same kind of tactics that you saw in the 1920s, where it was about stopping people from reproducing. This was about encouraging certain people to reproduce. And, you know, it's also worth noting that as much as Justice Thomas is intent on grafting these two histories together, even though they're really quite distinct, he really misses the idea that there is something radically different about a state-sponsored and endorsed program of reproductive control that sterilizes people, as the eugenics movement did, and the prospect of a Black woman exercising her constitutional right to terminate a pregnancy because that is the choice that she has made. I think that's such a key point. And I just want to reiterate that individual people choosing to terminate individual pregnancies is not eugenics, right? There's no sort of societal uprising of eugenics where people who have gotten Down syndrome diagnoses are getting together and saying, we know we got to get rid of all the Down syndrome people. So let's all decide

to get abortions in order to implement the societal policy. That's just not what's happening. And so they'll often say, you know, they'll turn to the rates of Down syndrome pregnancies in Sweden and say, oh, well, Sweden's been able to, through abortion, eradicate this disfavored trait. And so they start to talk about people with disabilities using this really ugly language. And they start to talk about people with disabilities using this really ugly language. And they start to talk about people with disabilities in a way that weaponizes whatever disability they have in a way that doesn't help people with disabilities. It doesn't help the disabled community. Because if you look at the states that are trying to enact these trait selection bans, they don't put any money into

programs that would help parents or families raising kids with disabilities do that in a safe and healthy way. So I think that it's really, it's grossly hypocritical for someone like Clarence Thomas to use these really white supremacist notions about reproductive control as an effort to further infringe on the reproductive rights, particularly of Black women. And when it comes to specifically these race selection traits, you know, certainly at the turn of the 20th century, there was a lot of concern about white women committing, quote unquote, race suicide. You know, President Roosevelt, Teddy Roosevelt at the time, actually talked about how it was incumbent upon white women

to keep birth and babies because, you know, all the Blacks and the Browns, they're outbreeding you. There's still that concern today, right? I mean, you see these stories about how, oh, in the year 2055, the country is going to be majority non-white Latino or Latinx. And it's like you can almost hear the panic in white people's voices. You're Tucker Carlson's, you're Steve King. You can hear the panic in their voices as they start talking about replacement theory and these black and brown immigrants coming into this country and they're having anchor babies, quote unquote, anchor babies. This is really, really ugly language that just lays bare that their goal is to maintain white supremacist control over this country, to corral all the white women they can, whether they're wealthy or not. They just want more white babies. Right. And they don't care how those babies come about. People will always ask me, well,

you keep saying that really these abortion restrictions are about demographic shifts. They're about concerns among the white population that their demographics are winnowing. And I mean, let's not forget xenophobia, because the basis of these sex election bans is the same yellow peril argument that we have been seeing in this country since before the 20th century, right? If you listen to the legislative history, when these states pass laws banning abortion on the basis of sex, it is all based on people from India and China are coming to this country and they are bringing their ways with them. There's an amazing amicus brief that was filed in the Ninth Circuit in our challenge

to the Arizona race and sex election ban. One of the plaintiffs in that case was the National Asian Pacific American Women's Forum. And there was an amicus brief really looking into the history of treating Asian people in this country as a fifth column and the history of yellow peril in this country and just the complete connection between the rhetoric that is being used to support these sort of abortion bans on the basis of sex and the same sort of language that has been used for over a hundred years

to talk about Asian immigrants in this country. So there's just a complete synergy here in what we're talking about. Just to say another thing about the race selection bans. I mean, if you go into a gynecologist as a Black woman or a brown woman, and you say to the gynecologist or the OBGYN, I want to have an abortion because I'm afraid my baby's going to be Black. Like, that's just not something that Black women say, because if you're a Black woman, this assumption is that you're going to have some sort of Black baby, whether it's mixed or not. What really the race selection bans are about, it's about racist white folks whose daughters

are going out and having sexual relationships with Black men, getting pregnant, and then those racist white families don't want to have their daughter having a Black child. So I really think that those sorts of restrictions really say a lot about white America more than they do about Black America, even though they do base those restrictions on this absurd idea that somehow Black women getting abortions is a genocide, right?

That Black women are somehow participating in a genocide of their own people by making choices about their own bodies, oftentimes because the state will not help them raise the children that the state wants to force them to have. I also really want to address the fact that the path along the Supreme Court and the court systems is one path. Can you talk a little bit, maybe, Alexa, about what's happening outside of the courts? We have the Biden administration, we have Congress has introduced a bill. Is there hope in those other paths? Because it's looking a little bit depressing at the Supreme Court level. Look, there are a lot of levers that need

to be leveraged right now. And certainly what we're seeing from the Biden administration is unprecedented from what we've seen from, you know, at least at the federal government level in the past, not only the Department of Justice's lawsuit in Texas, but, you know, coming out in support of WIPA, the Women's Health Protection Act, which has just been passed by the House in Congress, and at least at the time that we're recording, should be going up for a vote in the Senate. And the White House has expressed its support for WIPA. There is also, I think it's important to remember when we're talking about WIPA, there's also the Each Woman Act that's been introduced in Congress, which would

specifically target funding bans at the federal level that restrict insurance funding for abortion, both in terms of Medicaid, but also any federal funding program for abortion, whether it's through Indian Health Services, the Bureau of Prisons, Peace Corps, military, federal employment. There are these bills at the federal level. And I think they reflect the fact that we understand that in many respects, we need a federal solution here. It's not coming from the courts. I mean, we are doing our best in the courts and we will continue to fight in the courts. And I think the courts are an important tool, but they're not going to solve everything. And likewise, what we've seen in the

demographics of state legislatures is that that is where a lot of the restrictions and bans are coming out of. And so the need for a federal solution, I think, has become sort of more stark than ever. So there's definitely movement happening there. But, you know, that movement only happens as a result of pressure from below that needs to continue so that people's elected representatives know that that is what they demand of them. And has is the opportunity now to pass a bill that could enshrine protections for abortion access, get rid of existing restrictions and also expand coverage. And I think it's important even in states where we think, oh, that's a safe state. They don't have to worry there. No matter what happens at the Supreme Court, you'll still be able to get an abortion in New Jersey. But I don't think we can be so passive.

I don't think we can just sort of assume that everything's going to be OK. And I think there is a real onus on Democratic states or at least states with the political will and majority to make these changes to be not only enshrining these protections right now, but expanding access. Because if the worst does happen at the Supreme Court level, or if we see other copycat bills like Texas that are able to take effect, where people are going to need places to go and states where there still is abortion access are going to have to do everything they can to ensure that access is there not only for the people in the states, but for people who have to come there. And that can look like a lot of different things. I mean, that can look not only like just passing a law that protects right to abortion, but think about expanding state Medicaid coverage for abortion. Think about the reimbursement rates that are provided for abortion

providers under Medicaid. Even in the states that have state Medicaid coverage for abortion, the reimbursement rates are often so low that they are essentially meaningless. And so it essentially requires abortion providers to provide care for free for people because the money that they get back from the state doesn't in any way cover the cost. But because abortion providers, unlike I think the rest of medical care in this country, are so devoted to their patients and provide so much free care, they make it work. But it's very untenable and it's very hard to keep your doors open when you're providing more free care than care that you're getting any reimbursement for. And so that's something states can fix,

right? It may not be as sexy as a constitutional amendment to protect abortion, but if there's not the will to do that, maybe you have the ability to increase Medicaid reimbursement for abortion. Maybe you have the ability to expand coverage for people who are undocumented, who come from out of state. You know, there's many things that can be happening at the political level, you know, both state and federal. And I think it's important to just be throwing everything we have. Everybody with the political will, with the power,

with the ability to get these things done needs to be doing it right now. It's not just going to be happening in the courts. To tack on to something that Alexa said, and that is that, you know, another thing that states can do is to protect providers by enforcing, by passing and enforcing buffer zones, right? Because you have states like Kentucky, for

example, there's one clinic and it is besieged by protesters all the time, which makes it very difficult for providers to do their work. It makes it very difficult for people who are seeking abortions to actually get in the door. And it just increases the amount of stigma that surrounds the work that providers do. Like one thing that really struck me about what Alexa just said is how many abortion providers provide care for free? To hear people like, you know, Lila Rose at Live Actions tell it, these are people who literally are risking their lives in a climate of real violence in order to provide care because they care about their patients and they want what they want, what is best for their patients. So I think that's a really critical point for, you know, Democratic states, for blue states to not just say, hey, we protected abortion, but also what can we do to protect providers and protect patients? And Melissa, let's end with you. Where are you hanging your hat? Where are you focusing on for the next phase of this movement?

So I think Imani is exactly right to think about this as inextricably linked to voting rights and other efforts to undermine the democratic process. We are so conditioned to think of these things as siloed. There's abortion rights, there's voting rights, there's this. But you don't get a legislature that is passing an obviously unconstitutional six-week ban on abortion unless you have redistricted your state such that the legislature leans in a particular ideological direction and you have managed to suppress the votes of the many voters who would object to that. And there's widespread public support for abortion rights on the ground. People may disagree about what the nature and scope of abortion rights should be, but they agree that there should be a right recognized in the Constitution as it is in Roe. And there's a

tremendous support for that. You don't get a law like the one passed in Texas without basically completely commandeering the process to minimize and suppress the voices of all of those people on the ground. And it doesn't just have repercussions in abortion rights, it has repercussions all over the place. The whole fight about critical race theory, the fight about schools and masks, all of this goes through the legislature, which is why we must understand the fate of abortion rights to be linked to this effort to limit and suppress the voices of voters all over this country. Well, thank you so much to all three of you. This was an incredible conversation and so appreciative for all the work that you individually all do. So thank you so much.

Thank you. so appreciative for all the work that you individually all do. So thank you so much. Thank you. That concludes our very special episode of Strict Scrutiny, a joint collaboration between Strict Scrutiny and the ACLU's podcast, At Liberty. As always, we are grateful to our producer, Melody Rowell, for her fantastic work and to Eddie Cooper, who does our music. But for this episode, we are also very, very grateful for the partnership of the ACLU, At Liberty, and its producer, Kendall Seismire, as well as its host, Molly Kaplan, and its terrific guests, Amani Gandhi from Rewire and Alexi Kolbe-Molinas of the ACLU. Thanks so much for joining us.