Strict Scrutiny - Reproductive Rights & Justice Stories (Melissa Murray, Kate Shaw, Reva Siegel & Rebecca Traister live at the Brennan Center)

Episode Date: November 27, 2019

In this special bonus episode, Melissa and Kate are joined by co-editor Reva Siegel to discuss their book "Reproductive Rights & Justice Stories," in a conversation moderated by Rebecca Traister and hosted by the Brennan Center for Justice at NYU School of Law. Follow us on Instagram, Twitter, Threads, and Bluesky

Hey, Strict Scrutiny listeners. This is Melissa Murray, and I have a great bonus episode for all of you. On November 14, 2019, my co-host Kate Shaw and I got together with Yale Law School's Reva Siegel and the great feminist author Rebecca Traister to talk about our recent book, Reproductive Rights and Justice Stories.

And we did this under the auspices of the Brennan Center for Justice at NYU School of Law before a live audience at NYU. So the book covers 12 both canonical and less known cases about reproductive rights and justice. So we talk about some of those cases. We talk about some of the threats to reproductive rights and justice before the country and before the Supreme Court right now. So have a listen. And if you enjoy it, think about buying our book. And also subscribing to the Brennan Center and Strict Scrutiny's podcast, both of which are fantastic. Thank you. Thanks.

Hello. Welcome to this Brennan Center for Justice event. The Brennan Center is a nonpartisan law and policy institute affiliated with NYU School of Law. Tonight, we are grateful for the partnership of both the New York lawyers and the NYU Law student chapters of the American Constitution Society. I'm Rebecca Traister. I'm a senior writer for New York Magazine and the author of a few books, the last of which was on the political power of women's anger,

which is possibly why I am here moderating this event tonight. We are here to celebrate these three brilliant women, Kate Shaw, Melissa Murray, Reva Siegel, and the publication of their book, Reproductive Rights and Justice Stories. The 12 legal cases featured in the collection involve contraception, abortion, pregnancy, and parenthood. The stories highlight the intersection of race, class, sexuality, and sex with politics, and how the law is used to regulate reproduction. So I'm going to introduce them very briefly.

Kate, who is next to me, Kate Shaw is a professor of law at the Cardozo School of Law and is an expert in legislation, administrative, constitutional, and election laws. Melissa Murray, next to her, is professor of law at NYU School of Law. She is an expert in family law, constitutional law, and reproductive rights and justice. Reva Siegel, on the end, is a professor of law at Yale Law School. She is an expert in anti-discrimination and constitutional laws, equality, citizenship, and democracy. Please welcome all three of them. I want to start by asking you all to talk about the framework of the book and this discussion. The legal field itself, reproductive rights and justice, a relatively new legal field.

Can you talk about how this field has come to be and why it's important to designate as an area of study and consideration? So the idea of reproductive rights and justice is not necessarily new. It's something that's been around since the 1970s. A black feminist really pioneered this, Sister Song and organizations like that had a lot to do with it. But in the law school, in the world of red-covered and blue-covered case books, it was really an anomaly. If we talked about reproduction, it was really in the context of abortion. It was usually stuck in the interstices of constitutional law, possibly family law. But there's more to this question of reproduction and reproductive capacity than how to prevent pregnancy or how to terminate a pregnancy. And so there has been, I think,

a movement that's been percolating for a while among feminist legal scholars to think more broadly about what a field that thinks about women's reproduction, about people's reproductive capacity might look like. And in 2013, my colleague at Berkeley and I, her name is Kristen Luker, and she's done amazing writing on abortion and sexual education and the regulation of sex. She came to me and said, we have to write a casebook. We have to make this part of the field of law. And the only way we can bring it into the legal world, into the academy, is to write a casebook. And honestly, that's really depressing when you think about it. But she was right. I mean, it wouldn't be taken seriously as an offering,

as a course offering. It would be hard for students to take a course like this because without a casebook, it's really, the onus is on the instructor to put together materials for herself or himself. And so by having a casebook, it legitimizes the field. It makes it possible for the field to be taught in law school. And it allows for the next generation of advocates to be trained. So we really focused on this. And the book that we wrote in 2014 and then the book that Reva, Kate, and I put together in 2019 thinks about it, not just abortion, not just contraception,

but all of the decisions that go into the organization and arrangement and creation of intimate life. So it's not just how to prevent a pregnancy. It's actually how to have a healthy pregnancy. It's how to raise your children in conditions of safety. And it is necessarily, because it is broad, intersectional. So we're not just thinking about the women who can afford contraception or abortion.

We are explicitly thinking about those who can't, those who have other axes of oppression and discrimination that impact their ability to exercise their reproductive capacities to the extent that they would like. And so it is a necessarily urgent and broad project and one that we were really excited to bring into the academy and one that Reva and Kate and I were excited to make accessible by telling the stories of these cases, some of which are quite familiar, some of which are not, in ways that make clear the stakes for reproductive rights and justice for everyone.

Oh, go ahead. Well, let me just maybe add just one thought, and then Reva, you should as well. One thing just to add to I think Melissa's totally accurate framing is that we think traditionally about reproductive rights as a freedom from certain kinds of government control. And reproductive justice has kind of a more capacious but also a more affirmative orientation. So although all of that seems kind of quixotic in this moment when a lot of people feel quite on the defensive, at least the vision of reproductive justice is one that asks about maybe even government facilitation of access to safe and healthy pregnancy and childbirth and child care and that is of course attentive to

dynamics of race class sexuality language disability sort of all of the impediments to kind of full access to the range of necessary means to this fulfilling kind of intimate and family life so kind of a freedom to rather fulfilling kind of intimate and family life. So kind of a freedom to rather than just a freedom from framework I think is one additional element of what we think of as reproductive justice, not just reproductive rights. So what I was going to add is that one thing that you see by drawing back the lines of analysis

and not just focusing on the law of contraception or the law of abortion, but looking at something like the life cycle and asking what are all the ways that law impinges on, empowers or disempowers people in their intimate and their family lives, and really beginning to notice the many kinds of law that both empower or disempower people in the ways that they connect with, form relationships,

bear and raise families. When you start noticing all of that, then you can begin to ask questions about really what it would mean to have something like an equality law in this area and to think about that question in a genuinely intersectional way that made a difference in lots of people's or communities' lives. And maybe that's quixotic if we're trying to just imagine it as something that a court would do, but part of the point of this analysis is not simply to think the question in, excuse the language, a juricentric sort of way, you know, a totally court-centered sort of way, but to look in a big wide-angled lens way at all of the institutions involved, all the way laws involved, and to ask how one would intervene to make that world for one community or another

better, sometimes through courts, but not only through courts. Another thing that the stories do, and this is not the RJ perspective as such, but it's another feature of the methods that a lot of the authors used in the stories, was to pay attention to questions of legal change over time and the ways in which the change process happens through, often through mobilization and through many kinds of legal arenas, not only through courts. So we definitely look in all of these cases at stories about change in courts, but we look at change that starts outside of courts and in government, you know, for example, representative government as well as courts. legislatures and with sort of civil society or popular actors and appreciating the extent to which realizing something like reproductive justice would require courts and more, or in

circumstances like the ones we're in today, how one might begin to look or ask about that question when one can't always rely on the federal courts. So I'll leave it there. Melissa, I want to start with you. Your chapter is the first in the book, and it concerns one of the cornerstone cases that I think is one of the better-known cases, Griswold v. Connecticut, which was a Supreme Court case that in 1965

made contraception legal for married people. As somebody who's written a book about unmarried women, I want to note that it wasn't until 1972 that an entirely separate case made contraception legal for unmarried people. And you write about it from a perspective, because part of the process was a decriminalization. It wasn't just the expansion of liberty. It was actually the decriminalizing of the use of contraception. And I was wondering if you could talk a little bit about looking at a case like that from a criminal perspective, taking into account criminal law.

So my chapter is on Griswold versus Connecticut, this, again, this old chestnut that's very familiar to students of constitutional law. There are a lot of constitutional law cases that I think many of the law students will be familiar with, Eisenstadt, Loving, Lawrence versus Texas. These are all criminal law cases just like Griswold. We just never think of them in that way. And in my other writing I talked about the way in which the legal regulation of sex has in large part throughout our history been done under two rubrics, crime and marriage. Like so sex that was lawful was in marriage and sex outside of it was always criminal for the most part. If you think about Griswold in that way,

the case is even more illuminating and goes really far beyond simply identifying a right of privacy. Griswold is born of this larger criminal law reform effort where the American Law Institute, the creators of the model penal code, are actually thinking in the late 1950s, early 1960s, about whether or not the criminal law should be used to enforce moral and sexual conformity. And they come to the conclusion that it shouldn't. So the model penal code recommends that states no longer have laws criminalizing fornication, when I tell my students that it was actually a crime to have sex outside of marriage, they all look around like, is this still happening? I'm like, don't worry. Everyone's fine. It's all good. You're all good. But I mean, they were recommending that we stop using the criminal law for these purposes to enforce this kind of

moral conformity. And if you think about Griswold in that way, Griswold is part of that effort. It comes out of that tradition with the model penal code and this reform effort to rethink what criminal law should be used for. And so if you think about it that way, Griswold is as much about privacy, and privacy is not simply about seclusion from the state, but actually designing true limits on what the state can use its authority to do. And one of the things Griswold said is it cannot be used to enforce this kind of moral conformity where every episode of marital intercourse has the possibility of being procreative. The issue, do you think that it would be useful as people talk about what's going to happen moving forward to think through a lens of criminality? Because I do think that even when we talk about, for example, Roe, which we're going to talk about more in a minute, it's still about a liberty being removed and there's less focus on what that has meant

historically, that it's not just the absence of liberty, that it's the actual criminalization of the forbidden act. I mean, all of these cases, I mean, if you think about loving, that was about enforcing a kind of conformity around marriage, making it racially homogamous. If you think about Roe and abortion, that is enforcing for women this identity of being mothers. And so if you think about it in those terms, the element of social control becomes much more apparent and I think much more terrifying. And so the rollback of Roe, I think if you view it through a criminal lens, and a lot of the more restrictive abortion laws that we're seeing are laws that recriminalize abortion in particular ways,

again, is not just about restricting abortion, but imposing a kind of state-level moral conformity, mandate for moral conformity. Reva, your chapter is about Roe, which I think lots of people in this room, including me, often think about as something to hold on very tight to and the very real possibility that it's not going to be possible to hold on to. I want to ask you about the space between the way Roe was decided and the kinds of arguments that preceded it, not just in the women's movement, but through the civil rights movement, through a movement to address economic inequality, and the space between

Roe, that precious thing that many of us cling to, like Gollum in the ring. It's probably a real bad analogy. Versus what some of those movements might have wanted that law to be. So it was genuinely fascinating to do this deeper dive back into the world before the court ruled in Roe, which I've done more than once with my pal Linda Greenhouse. And we had done a reader of some of the primary sources from the debates. We had looked at the roots of backlash before. The short story that we did in this book taps a lot of that. I mean, this is a world in which more Republicans supported decriminalization than Democrats, a world in which

Southern Baptist Convention was not particularly opposed to decriminalization. It's just a different world than the world that we're in now. So one of the things that we began to notice when we started tracing the litigation history this time through is that feminists come late to the story, and in fact, the arguments that are percolating through movement challenges to laws criminalizing abortion outside the actual litigation of Roe take different forms than in the Roe litigation itself. a case called Abramowitz in New York State, a case called Abley in Connecticut, that actually are more experimental, more broad-based in the ways they challenge the criminal bands than was

Weddington in Roe. And I'll just give an example or two. What is really, besides the fact that in these cases there were either class actions or multi-member lawsuits which featured depositions of women telling stories as much of their argument, they generally made claims on equality, economic equality, so equal protection class, equal protection race, and equal protection sex, and used these claims to illuminate the disparate health harms of a criminal abortion regime, the disparate effects on women's health and sexual and caregiving lives of laws criminalizing abortion in ways that the privacy challenge in the Roe case proper did not do. And the Roe opinion itself, with its focus on science,

doctors, and medicalization, most certainly did not do. And so the stories told about why the Constitution prohibited the criminalization of abortion in the suits that were working their way up the pipeline at the same time as Roe had a more robust account of the constitutional harms of criminalization than the Roe suit did itself. And I'm going to read you one line from the Ably brief, which had these disparate equal protection claims and said that abortion laws are, quote, both a result and symbol of the unequal treatment of women and said that so long as, quote,

such a broad range of disabilities are permitted to attach to the status of pregnancy and motherhood, that status must be one of choice. So it's an addition to all of the ways that it looked at race and class. It also looked at what it meant to be pregnant and what it meant to be a mother and understood that as part and parcel of why it was wrong to coerce motherhood. In Connecticut, when the district court struck down Connecticut's criminal abortion statute, that opinion, the district court opinion, cited the 19th Amendment, Title VII of the 64th Civil Rights Act, and Reed against Reed, and also the fact that the ERA had just been reported out

of Congress as part of its story of what was wrong with a criminal abortion statute. That is different than Harry Blackmun's opinion. Can I actually jump in and I was just going to flag, I don't know if we're otherwise going to get to talk about it, but there's one chapter that is worth flagging because so obviously people mostly do know Griswold and Roe, but there's a case called Strzok versus Secretary of Defense that we have a chapter about in the book that I think really resonates with some of the account that Reva was just giving. And people haven't heard of it for the most part because it was never a Supreme Court case, but it was a Ninth Circuit case litigated by then litigator Ruth Bader Ginsburg. And she wanted this to be the

first big abortion case that the court took. So in 1972, this case is decided by the Ninth Circuit, and a policy change moots the case so it never gets before the Supreme Court. But it is another example of kind of a path not taken in the law. And Neil Siegel at Duke writes a chapter in the book, he and Riva have written about this Strzok case previously. But the facts are always really startling to people, so I feel like they're worth briefly mentioning, which is that Susan Strzok case previously, but the facts are always really startling to people, so I feel like they're worth briefly mentioning, which is that Susan Strzok is a captain in the Air Force, and she becomes pregnant, and she is told that she can either have an abortion that the military will pay for, or she'll be discharged. That's the choice she has to make. So at the time, government is not only not prohibiting, at least the federal government,

abortion, it is paying for it. It is compelling members of the military to obtain abortions or giving them some choice, but a very constrained choice between an abortion and a discharge. She doesn't want to be discharged, and she doesn't want to have an abortion. She is an observant Roman Catholic, and so she files a lawsuit. And the military, after some losses, changes its policy and moots her case. But Ginsburg's brief in that Ninth Circuit case, and then before the Supreme Court, before

the case was mooted, does sort of weave together a lot of the themes that don't really get realized in the Roe opinion. You know, so this is both, it's sex discrimination, right? The person with whom she had the affair was also a member of the military, suffered no consequences whatsoever. It's a case about pregnancy discrimination. It's a case about impingements on reproductive autonomy, right? In the opposite direction than the one to which we are accustomed. But the point there is that government control over reproductive autonomy can move in two directions, right? And so actually, even as recently as the Casey argument, there are still arguments in the air

that if government can prohibit abortion, government can compel abortion. And that's not a line of argument you really see today. And I do think this drug chapter makes all of that clear in a way that a lot of the materials underlying the Roe decision do as well. I want to actually get you to follow up. You're talking about pregnancy discrimination being an issue in the struck case, but the chapter that you write in the book is actually about a more recent case, the 2015 Young versus UPS case, which was a pregnancy discrimination

case. And one of the things that Kay writes about that I'd like you to talk about is how the issue of pregnancy discrimination itself sort of offers one of the few points of like potential optimism for the immediate future because it brings together unexpected and disparate coalitions of people

on both left and right and a kind of unusual combination of liberationist and protectionist feminism. And I wonder if you could talk about that a little bit. Sure. And so the background here is that in the 1970s, right around the time that the court is handing down Eisenstadt and Roe, the court hands down some decisions expressly declining to protect pregnancy. So first, it finds that the Equal Protection Clause of the Constitution doesn't protect

a woman against pregnancy discrimination, that pregnancy discrimination is not sex discrimination under the Constitution. So feminists say, okay, we're going to try to bring this as a statutory claim. So they bring a claim under Title VII of the Civil Rights Act that prohibits employment discrimination, including on the basis of sex,

and the court on almost identical logic, which is basically that, well, policies that restrict the employment prospects of pregnant women or pregnant people, pregnant women is, of course, the logic at the time, aren't sex discrimination because they simply draw a distinction between pregnant persons and non-pregnant persons, and the latter category has both men and women in it. So it's not actually a sex discrimination problem. So having essentially failed both under the Constitution and under existing statutory law, feminists turned their attention to the legislature. And that is, I think, another theme that sort of echoes throughout the book, which is that these different spheres in which constitutional values are expressed and meaning is shaped and made include the legislature, right? That's state and federal, but here we're talking about Congress. So

this interesting coalition that Rebecca alluded to sort of forms to propose an amendment to Title VII, which is the Pregnancy Discrimination Amendment. And so it's both pro-choice feminists, including a lot of feminist law professors, and some pro-life actors, including sort of self-identified pro-life feminists, who take the position that if pregnancy were facilitated at work, many women would not opt to obtain abortions, right? They would carry pregnancies to term. So these are folks who I think diverge on quite a lot of matters of equality and liberty, and yet agree very strongly that workplace protections should be created under federal law for pregnancy. And so they work together to draft the Pregnancy Discrimination

Act of 1978. But the Supreme Court doesn't weigh in on it at least very much, really until 2015. And it's a law that goes largely under-enforced in the lower court. So despite this protection, so Title VII is amended to make clear that discrimination because of sex includes discrimination because of pregnancy. And in a separate provision basically says that workers who suffer some disability on the basis of pregnancy shall be treated no worse than other workers who are similar in their ability or inability to work, which is like a very confusing phrase. But, and lower courts basically don't do much with it. They basically sort of say, you know, if you employer, because it's not totally clear how much you have to accommodate pregnancy

because it's sort of the logic of comparison, no better or worse than other workers. So if you're an employer who doesn't do a lot to accommodate workers who have limitations of any sort, you basically get a free pass for not accommodating pregnancy. At least that's the way lower courts interpret this provision, really until 2015. And the case Young v. UPS involves a UPS driver who becomes pregnant.

Her doctor recommends that she not lift more than 20 pounds for the duration of her pregnancy. She's had a couple of miscarriages already. And UPS tells her, sorry, you can't take a light duty assignment. We only allow those for people who have ADA disabilities or who have lost a commercial driver's license for some reason. And literally that was any reason. DUI, sleep apnea, anxiety. You could lose your CDL, your commercial driver's license for any of those reasons, but not for being pregnant. And she brings a challenge in the district court, loses there,

loses in the Fourth Circuit, because again, this logic of comparison really defeats her. And she wins in the Supreme Court. And it's a qualified victory in that it doesn't make some really strong statement about employers' obligation to protect pregnancy or to accommodate pregnancy. But it does say, employers, if you accommodate some other workers, you have to basically do the same thing for pregnant workers, right? If they require some kind of accommodation. But a lot of the stories in this book are qualified victories. So it still, I think, allows employers to dodge doing much substantive accommodation

simply by treating everyone terribly. But at least pregnancy can't be singled out for unusually adverse treatment. And so maybe we'll talk a little later about some forward-looking dimensions of if there is, oh, so sorry, the coalition story. So it's both a coalition at the passage level and it's a coalition at the litigation level. So Young's lawyers are a very liberal law professor at the University of Michigan, Sam Begenstoss, who's a contributor in our book, and a quite conservative practitioner in Virginia, Sharon Gustafson, who's actually now the general counsel of the EEOC, who very much identifies as a pro-life feminist, very pro-life, and very much self-identifies as a feminist. And so the two of them are the sort of the odd couple that litigate and win the Young case

in a way that sort of echoes this coalition that was forged to pass the law in 1978. So I'll stop there for now. I just want to add that one could look at this statute as a victim of the general, more general evisceration of employment discrimination law by judges who over the last several decades have been appointed with an inordinate hostility to employment discrimination law.

There have been numerous studies showing that the plaintiff win rate has steadily plummeted in the last couple decades and there is a um a an incredibly narrow interpretation that emerged over time of the pregnancy discrimination act um what's the right way years ago when i was in law school, like some of you are, I wrote a student note about the Pregnancy Discrimination Act, and I made an argument that there ought to be disparate impact claims under the Pregnancy Discrimination Act. In other words, it's a Title VII statute, and so there are disparate impact claims under Title VII where you don't have to prove purpose. You can take a law of general application and say if it bears more heavily on one group than another, then you

could make this claim for pregnant women. And it's never been ruled out under the statute, but judges sitting on federal bench have never been able to find their way to making these claims. And because there's never, the claim still exists, but judges never find their way to it. Well, it's because they're also rooting out disparate impact. Well, now they are. Now disparate impact is a hunted animal and certainly hunted in the Trump administration. And it will be soon hunted in the federal courts. I mean, it's a hunted animal more generally. But I do want to wind up by saying, and this goes to the theme of don't only look to the federal courts, that there are state statutes now passed in 27 states, count them, 27 states that call for the reasonable accommodation of pregnant employees.

So that are, at a state law matter, calling for something like a disparate impact approach. And that is now being considered at least on the Hill in Congress as well. I wanted to ask Melissa specifically because I know that you were part of an event this week about the congressional push for the Pregnant Workers Fairness Act and what that is and if there are reasons to be optimistic about it. So Representative Gerald Nadler, who is the representative for, I learned this week, our district. And actually, his whole district is sort of a testament to gerrymandering because it includes the entire Upper West Side, parts of the Upper East Side, the Village Soho, and then Kensington Borough Park and Sunset Park in Brooklyn. A lot of range for him. But he has introduced into Congress in the House, and he has bipartisan support, the Pregnant Workers Fairness Act,

which aims to remedy some of the confusion that's resulted in the aftermath of the Young case, where, again, this idea that you just have to treat pregnant workers the same as you would treat other workers. And so employers are like, great, I'm just going to treat them all terribly. That's how I'll deal with this. The loss rate is very high. The loss rate even after young is really, really high. And so the Pregnant Workers Fairness Act would introduce a different model. And I think it's like Kate touched on this a little bit,

but the logic of the Pregnancy Discrimination Act of 1978 really is sort of a classic comparative discrimination model. In order to prevail, the burden is on the plaintiff to show that he or she has experienced discrimination that would not have happened if they were to someone who is similarly situated. The model that the PWFA is looking for is really more like the Americans with Disabilities Act, which doesn't seek to compare modes of discrimination, but rather is an affirmative right to accommodation. And so that's what they're like, this isn't about whether the male workers who got DUIs are treated the same as the pregnant women. It is about whether we have as an employer an affirmative obligation

to accommodate this. And so it's a very different model. Interestingly, there has been a sort of competitor to the bill that's been introduced in Congress as well by two Republican members of the House. And essentially what this competitor bill does is basically codify Young versus UPS. and it does so on the auspices that this will be better for small businesses. So again, the same sorts of tropes about disability law accommodating pregnancy being bad for business is being used again. So I would just say that the basic premise of the Pregnant Workers Fairness Act is that I don't know, just say working moms

are presumed entitled to keep their jobs like working dads are. I mean, that's just crazy talk. I mean, it's taken us until the 21st century to come up with that idea,

and the Republicans can't sign on to it. But I think this is also where the state-level bills can really be useful, because one of the women who testified at the October hearing on the Pregnant Worker Fairness Act was a woman from the Chamber of Commerce in Kentucky, where they recently adopted the bill. Totally. And she says they recently adopted. Totally. And she says it's they were reluctant at first the Chamber of Commerce was uncertain about whether it would support it but they've actually found that worker productivity is so much better under these laws

people are happier they're assured that their jobs will be there for them and they're willing to invest in their jobs to a degree that they might not have been willing to do before. I mean, I think that one can, these laws, this is the idea of there being purple. These laws have passed and read even. These laws have passed in South Carolina. They passed in Kentucky. They passed in Utah and Louisiana. So this is actually a path for change where you could see, and you do see in the record, stories of convergence of the kind that you saw in Kate's history of the Young case. And part of that is something that you've written about and feel very strongly about, the concept of a reframing of the conversation and a legal reframing around the language and idea of what it means to support life. And you've talked about your concept of pro-choice life. Can you

explain that a little bit? Yeah. Well, I'm actually going to back up and sort of talk about how I got started down this road I got exasperated in abortion conversations that were single issue siloed which also fits with this larger RJ resistance to just looking at the issue by itself but also when one's looking at the conversation in the legal context states can come in and claim that they have an interest in potential life, even when you sort of take a step back and look at what that state's policy looks like, and it doesn't look anything like that. But as a matter of law, states are entitled to make this claim, and all they need to do is assert it, and it gets a kind of deference that's remarkable. And so around about the time that the court decided a case called Whole Women's Health, which was the last

large victory, the Texas trap law case, which the court decided before Justice Kennedy left the court, the entire litigation was around whether the state could claim that it was interested in protecting women's health when it restricted abortion in a way that it didn't restrict any other similar health condition. And all of the whole women's health litigation was all about probing the consistency with which the state was actually interested in protecting women's health when it was singling out abortion. So I thought, let's really push this interest in protecting life and ask whether the states that are asserting an interest in protecting life in the abortion context are acting consistently elsewhere. So pull back the frame and look at states with an appetite for

abortion restrictions around the issue of, I don't know, sex ed or contraception or the Medicaid expansion or pregnant worker fairness or any number of other ways that one could support life. And one suddenly sees that states that assert an interest in life in the one context often, often are laggardly, if not all the way at the bottom of the list, comparatively on these other policy measures. And so... Shocking. Shocking. I'm shocked. I'm shocked.

And so there are sort of two... There's two ways that one can press this pro-choice life analytic. One is critical, that, in fact, the states that have an appetite for abortion restrictions in these settings sort of the new right configuration where there's a high appetite for abortion restrictions but an unwillingness to support women's choices in that other whole policy envelope in those settings you can look at it to press the choices and say look that interest in controlling

women's choices is not actually an interest in protecting life because it's not consistently pressed. Everywhere else, you're elevating an interest in property or controlling sex or something like that. So this interest in controlling women, not an interest in protecting life. So it's critical but it also and I began to realize I became very interested in this because as I began to talk about this it it frees up progressives to begin to say that they too have an interest in protecting life because in fact across this whole range of contexts what is it that this agenda is about but supporting women and families and caring and all the ways that they're interested in caring and supporting family formation, supporting people in sort of realizing their

intimate choices. So in that respect also, it supports a positive agenda. And the third thing is it really supports an agenda for change because it allows you to reach out to communities that may not agree with you on the abortion question and talk about change across that whole range of issues where you might find partners for coalitions for change, purple states, pregnant worker fairness act, possibly sex ed or contraception or something of the sort where you can't do agreement around the abortion question. And I actually just, I want to so amplify, I think that the dissonance between the language and thinking around life versus what it actually means to have policies and laws in place to support life. It's, you know, Reva said that the states that are at the top are often

in one category or the bottom of the other. And I was looking up the stats on this before I came tonight. And it really is astounding that if you look at the states that have recently tried to pass the most restrictive abortion laws, so Alabama and Georgia, they are in the bottom four when it comes to rates of infant mortality, with rates of 7.4 infant deaths per 1,000 live births in Alabama and 7.2 in Georgia, whereas the states that have the most access to abortion services are also the ones with the lowest infant mortality rate. You know, these are the states where there has not been Medicaid expansion, where there are high rates of poor maternal health,

poor maternal mortality rates. And so I just, I think that that dissonance is something that is so crucial to get to the heart of. I just got a big pile of really good questions. I'm going to start with one that I was going to ask anyway, which is a convenient convergence, which is Virginia just elected a Democratic majority that is quite likely to ratify the Equal Rights Amendment. Now, that doesn't, because it's late, that doesn't mean that we're necessarily going to get an Equal Rights Amendment. But if we did, if the deadline were extended, and if the Senate agreed to pass it and all of that,

how would an Equal Rights Amendment shift this field of law? Do you want? I feel like you've thought about this one. Well, one thing, so I'm not going to try to talk about all the question of how it could be made law, which is its own, I don't know, worms? Its own article. Yeah. Wormhole.

Because ratification in Virginia would not get us there. Right. because ratification in Virginia would not get us there. So one thing I want to say about an ERA is that it's been around in one form or another almost 100 years. And one way of understanding what's going on here is that this came of age with at least the ratification of the 19th Amendment, which I note was not every woman's right ability to vote.

Nonetheless, it is a sign of the evolving status of women in the American constitutional order and their efforts to right the many inequalities and imbalances of power in the American constitutional order. And so it's both a symptom of those inequalities in an effort to offset them. And in the 1970s, when it finally was pushed out to the states, there was, as a brilliant historian, Serena Meire, has recounted, there was a dual strategy. And one aim of that was to at least force courts, which at that point had never struck down a single piece of legislation under the Equal Protection Clause, to begin to enforce even the 14th Amendment's Equal Protection Clause about inrespective sex discrimination, which the court finally began to do.

So, but it did so imperfectly. And so the equal protection law that we have, I wouldn't say it's Swiss cheese, but it's weak in many respects, some of which Kate identified earlier. For example, it remains still not entirely clear, and we could argue about it at length, but not clear whether under the 14th Amendment discrimination on the basis of pregnancy is discrimination on the basis of sex. We still would be in a conversation about that. The court hasn't said that it is.

Excuse me? The court has not said that it is, right? I would argue off of Hibbs and— We can get there, but it has not said those words. And so one thing we might think about doing is passing the Pregnant Workers Fairness Act under Section 5 power and having the United States Congress make that argument first, because they're likely to do it faster than John Roberts. But in any event, we were in a long conversation about questions of the 14th Amendment's coverage of reproductive difference around pregnancy.

There's another question having to do with sexual assault and violence and the Morrison opinion, and an ERA could be a way of finally forcing different kind of protection, a more robust form of protection in those areas as well, where the court still has been faltering in the last 50 years. So I'll just, you guys want to come in? Yeah. Jumping off of that and your thoughts about the kind of role and power that Congress might have, here's a rather dark question, which is how can Congress interfere with liberal states like New York that have very strong abortion protections? I weren't sure.

We're like, do we have to go there? I mean, there's a few different places. So, yeah, I mean, I think that it is... I mean, I think there is a view among a lot of scholars that if Congress wanted to prohibit abortion nationwide, that it could do that. That's a separate argument than the argument that the Supreme Court could recognize as a constitutional matter

that the Equal Protection Clause protects fetuses and thus constitutionalize a right against abortion on the part of the fetus. So that is a step darker than the question goes. But I think once you start down that path, these are all possibilities that warrant discussion. I think that for a long time, I think a lot of people both

have and probably still do operate on the assumption that if Roe were overturned, abortion would remain legal in a lot of states, including New York. In the short term, that is certainly true, but I think there is a strong possibility.

Now, there would be questions about maybe the Commerce Clause. There are questions about congressional power that are non-frivolous questions. But if you had a Republican majority in both House of Congress and a Republican president, I think that at least a 20-week ban or something like that nationwide could be on the table. We have the Partial Birth Abortion Ban Act. But the Commerce Clause argument wasn't actually raised there or passed on the Supreme Court. So I do think there is an unresolved question about this kind of traditional prohibition of a particular kind of medical procedure as a state function. It's at least an argument that would be raised.

I think the Supreme Court would find that Congress has a power. And I think on existing Commerce Clause jurisprudence, that probably is the right answer. But the fetal personhood issue is a lot. I mean, that is actually a real thing that could happen. And the possibility of a constitutional amendment that recognizes. So you could do it under the Equal Protection Clause as it currently stands, or you could draft a new constitutional amendment. You could constitutionalize it separately.

Can we just sit together and just spin out these doomsday scenarios all afternoon? I want to take it brighter. I want to take it brighter. We've gone to a bad place. And several of the questions that got passed forward actually touch on this. So I'm going to ask a broad version of it. What should and what can state and local governments do to defend and expand reproductive rights? And I think I would broaden that and say reproductive justice expansion and protections, especially in states that have democratic leadership on a legislative level,

what is it possible to do as we look at a future where you're seeing erosion on a federal court level? The first thing I want to say is it's worthy of note that there was Republican control of the Congress and the presidency and there was not an appetite to do the very things you were describing so there's some awareness of latent public response aka, that these kinds of measures would trigger. And in fact, the passage of the Alabama and other bans produced the kind of response that caused a real effort to back off. There was a big conversation. I mean, there's really this question, there's a debate within the right right now about whether to move in an absolutist way or to move in a much more incremental way and lull the public. And we haven't talked about the June medical grant and the standing questions, but those are intended to delude the voting public that might react. But I'm gonna go to a more

positive place in line with your question. I do want to say something. We're gonna go to June. So here's an upbeat story rather than a downbeat story. This event is called Blessed Be the Fruit. I sort of put that out there. Okay, so there was this dark afternoon when I was walking across the courtyard of my law school to teach a class, and I realized that it was the first time

I was teaching a set of Kennedy opinions when Kennedy was no longer on the court, and it was my first ever time that I was doing this. And it was overcast, but I suddenly felt like the clouds had parted. And there was this light that sort of came across the courtyard. And I thought, he's not there. And it was instead of dread, he's gone, it was he's gone. And the thought was really that you didn't have to reason about what something meant in the sort of narrowest way that might persuade this one man. There was no hope of persuading anyone there anymore.

You could just simply say what was at stake. We're down to brass tacks now. And the light was shining because there was no hope. And that's really a great good thing, because really, now I want to tie this back, all the way back to these claims that were made in the 1970s. There was this really broad-based set of arguments that were made for the stakes. There were reprojustice-y kind of arguments made in the path to Roe. And they were narrowed to this very tiny thing that was Roe. And then there was this huge struggle over it that went on for years and years and years and years.

And we learned to repeat the magic words, the law words, over and over and over and over again. And we clung to them for many decades. And they got narrower. And then they took the form of undue burden. And they got narrower and narrower and narrower. And they're going to get narrower still. And then they'll go away. And then they'll have to grow again. And they'll grow again in new places. They'll grow again in the courts of, you know, California. No, no, no, no, no. No, no, no. No, no, no.

In fact, it's already happening. There are state courts and there are state legislatures that, like New York, has codified, right? And there are states, even Iowa, has, under its state constitution, recognized an equal protection ground for the right. And this is going to happen, and students who are here are going to go out and make those arguments in state legislatures and in state courts, and it will grow again again and this was a reason that this book exists that people will know there was something that grew in the world not just because judges said it was so but because people went out and they made arguments and they connected with other people and they persuaded other people and told stories and the thing grew and it has to happen again and

when it grows again there will be different people in places of decisional authority to recognize these claims, and they will get grounded. And this is where it connects up with the story about the 19th Amendment and the ERA. This time, there will be different people sitting in government to recognize the claims, and it won't have to be a case of persuading Harry Blackmun. And so it might sound different in law. So I'll stop right there. And a point that Reva made... Yes, go ahead. Reva says she will not try on her handmade robe today.

But it does connect to, I think, the work that you've done, Rebecca, to connect what Reva said. All of these things could happen. What perhaps forecloses it from happening right now is this idea of women's incredible anger. It is that backlash, that fear of backlash,

that modulates some of this. I think it is that fear of backlash that keeps John Roberts up at night thinking about how to not have backlash and to ensure the legitimacy of the court. And so, I mean, again, the anger that this will inspire, I mean, that's the only thing I think that's sort of keeping us together right now and keeping these in check. And it's the anger and it's a willingness to engage in this fight that, for example, makes it possible for New York to pass the RHA because it was an angry movement to alter the state legislature to get to a point where it had to be done and does some of the work that Reeve is talking about, which is decrease the space between what the movement is asking for and what the law will provide.

The other thing I think is important, I'm going to take it down again briefly dark. The other thing that is important to note, though, is that we're talking about the anxiety over what we sort of know is coming, either dramatically or incrementally, depending on how Roberts wants to address what he knows will be the backlash. Which is that in vast swaths of this country Roe essentially doesn't exist now. And so and that I think both gets us back to this question of what is possible in those spaces that may or may not be directly about abortion, but about all of these others from pregnancy discrimination to perhaps the protection of contraception access or maybe the reduction of contraceptive access. What is happening in these places where basically abortion is already off the table for vast swaths of the population?

What's the potential for growth and building anew in those places? So I think one thing to think about, in all of these places where abortion access is limited, it is even more limited for women who are women of color, who are socioeconomically disadvantaged, women who live in rural areas. These are women, they don't have access in a meaningful way that is more profound than we probably could imagine. And I don't think that's just in states with restrictive abortion laws. I think that's true throughout the country. And that is an opportunity, I think, to think broadly about how reproductive rights and justice intersects with an economic justice movement, too. I mean, one of the stories in the book by Kiara Bridges talks about Harris versus McRae, which honestly,

in my view, is the most important abortion case of our lifetimes. This is a case where the court says, yes, there is a right to an abortion, but there is no affirmative obligation on the part of the government to subsidize it through the use of federal monies, and lots of states adopt that. Even for Medicaid recipients, right? So women who rely on the federal government for health care, the Supreme Court says, can be denied access to federal funds to facilitate abortion. And one thing I think in terms of lost history is that it is, I think, really worth recovering with respect to Harris is that it's a 5-4 decision, right? We come in 1980 within one vote of the Supreme Court saying, if you have a constitutional right to abortion and you're a poor woman and cannot exercise that right otherwise, the federal government has to

provide you the access to that right the same way the Supreme Court eventually finds if you're a poor woman and cannot exercise that right. Otherwise, the federal government has to provide you the access to that right, the same way the Supreme Court eventually finds if you're an indigent person charged with a serious crime, guess what? You get a free lawyer, right? Certain rights cannot be exercised without some means by which to do that. And we come so close to five people agreeing with that proposition, but fall one short. And so another path almost, but then not taken in the law. But it also sets forth a path that could be taken in the future. I mean, to link up these economic justice movements with reproductive rights and justice opens up a whole array of different possibilities, not just about abortion, but about contraception, about access to contraception, about sex ed and just sort of general access to the education system,

about employment protections. I mean, like thinking about it on that kind of scale, I think is a possibility that is rendered imaginable in this new climate. And I do want to make sure that lots of people have asked, and it's come up a couple times in conversation. I think before we end, we need to talk about the June medical case and what we should be thinking about as it comes up and why it's happening and what it means for this conversation

and this law. I'll briefly just describe it. So this is the first big abortion case that the Kavanaugh Court will hear, right? So it's the Roberts Court, but my old boss, Justice Stevens, used to refer to courts by the name of the most recent appointee, because every justice really changes the character of the court. So this is the Kavanaugh Court in that respect, but it's also the Kavanaugh Court, right, in a deeper respect, because Justice Gorsuch replacing Justice Scalia changes very little, at least in this sphere, about the court. But obviously, the consequential substitution is Justice Kavanaugh for Justice Kennedy.

And in 2016, the Supreme Court, as Reva alluded to, struck down a Texas law that, among other things, required doctors who performed abortions to obtain admitting privileges at a nearby hospital. And Louisiana has a law that is very similar to the, that is virtually identical to the Texas law struck down in the Whole Woman's Health case in 2016. And nonetheless, the Fifth Circuit upheld this law, and the Supreme Court has now agreed to hear the challenge to this law's constitutionality. So I think there are, we've alluded to this a little bit, but there are a few different paths available to the Supreme Court, right? It could strain to distinguish this Louisiana law from the Texas law and find that though the Texas law was struck down, this law can be upheld, which will reduce the number of abortion doctors in Louisiana to one or two or maybe three at the most. I think it's probably just one doctor in the state.

And I think it'll be a bad faith exercise if that's the route the court chooses to go, but it'll be the path of least resistance from the perspective of public reaction and backlash, I think, because on the surface, the court can say, Roe and Casey are undisturbed. This law is different from the last major abortion restriction that we considered. And it could also decide to go much broader, or moderately somewhat broader,

and not disturb Roe or Casey, but overturn whole woman's health, right? The most recent statement, right, of the sort of scope of the constitutional protection for abortion. Or it could go really big. But, Melissa, what do you think? Well, so I think all that's right. Those are the three different things they could do, sort of incremental change, medium incremental change, and then sort of wholesale revamping of everything. But the other thing I think that's really interesting about this case is that the issues before the court are not simply whether this admitting privileges law poses an undue burden there's a second question about whether physicians have a right to assert a claim of a

third party like their patients and this is an unusual claim because the advocates weren't making it the court inserts it into circuit didn't even decide it so this is an issue that the Supreme Court doesn't usually decide issues that haven't been decided below. And here's one where they're like, let's hear this. And this is a really important question because it changes the entire nature of how challenges to abortion laws will be litigated. Because it's very standard not for abortion patients to challenge the law, but for their doctors or health care providers to challenge on their behalf. So this is a question for those of you taking constitutional law for the first time about standing and whether or not the doctors can claim third party standing on behalf of their patients.

And I think Reva has something to say about what this means for sort of the broader context. But the fact that the court inserted this in, I think, is really significant. I guess I would just add, as I alluded to earlier, that this is a way of restricting access. Indeed, these laws, none of them go to the direct question of whether a state may criminalize abortion. They concern the question whether states can enact laws restricting the way clinics operate and so restrict access in the indirect ways that they do through so-called trap laws. restricting access in ways that will have consequences on the ground,

and yet not set off too many bells for voters watching the court. And that strikes me. I actually was, I don't know if the word is offended, but really put off. It suggests a court interested in keeping voters demobilized before the 2020 election, so far as I'm concerned. At the moment, conservatives, Republican voters, go to the polls thinking about courts, and Democrats less so. And this, to me, read like a court that was interested in preserving that state of affairs in the interest of getting more judicial appointments of the kind that it's been fed in the last administration. A very depressing state of affairs. I guess what I would say, just sort of in the larger picture is that it's really important to begin to pay much more systematic attention to the question of rebuilding judicial capacity in the longer term without narrowing one's attention to the question of courts overall. I think it's been a terrible thing to have a

two-court focused view about the stakes of this field. One really needs, and the whole point of the book has been, the large frame picture, the one that sees legislation and mobilization and everything that's happening outside of courts. One needs to keep all of that in view if the administration doesn't change what's going to count as law in this area it's really quite unimaginable and it may make Canada in fact a necessary option so and on that note it is time that we stop the conversation. Yay! I want to say thanks again to the New York Lawyers and the NYU School of Law Chapters of the American Constitution Society

for partnering with the Brennan Center for Justice to host this program. Thanks very much to Reva, Melissa, and Kate. You want to say something bright before we end? I can say something bright. We did this book for all of the young people in this room. The world can change, and you will change it.