Transcripts For CSPAN2 Discussion On History Of Reproductive Rights 20240707

rights cases and the recent quote draft opinion indicating majority of justices would overturn roe v wade hosted by the university law center, this is about 2 hours. >> at georgetown, today we are talking about the history of reproductive rights with a distinct panel. my name is victoria nurse, professor of law and i run in institute on congress, what does congress have to do with it? we will learn about the relationship between court and legislation today. we have some very distinguished guests including one of georgetown's own, brad snyder who will introduce the panel for me today. is a guggenheim winner and author of a new book on felix frankfurter who will play a role in today's discussion on the history of reproductive rights over to brad to introduce the panel. >> thanks, great to be here. what an amazing dream team we have in person and online. as victoria said, she is the ralph whitworth professor of law. her 2,008 book which everybody should now go on and by, the last history, happens to be the 80th anniversary of the court decision, a lot of relevance in the current debate on reproductive rights. i would highly recommend victoria's 2009 california law review article a tale of two lockers as a bookend to her book in reckless hands, it helped me both as a young faculty member and over time in reading her book, reading her article to think about these issues. after victoria, john barrett, professor of law at st. john's university, world renowned expert on justice robert jackson, the elizabeth fellow, director of the robert h jackson center which is a co-sponsor of this event. author of forthcoming books on justice jackson and creator of the jackson list which gives me great joy. if you want to subscribe to the jackson list, email professor barrett. after professor barrett we have michelle goodwin, the chancellor professor at university of california irvine and founding director of the center of biotechnology and global health policy, arthur of the 2020 book policing the wound, invisible women and the common location of motherhood and she hosted a podcast on the issue. lastly, melissa murray, professor of law at new york university. the cohost of strict scrutiny, an expert on family law, reproductive rights, author of the 2022 william and mary article, abortion, sterilization in the universe of reproductive rights. we could not have a better group of scholars today talking about all these issues and how it relates to the current debate on reproductive rights. i'm honored to be here and i will listen to them do their thing, thanks. >> thank you, brad, for that introduction. we will talk for 15 minutes and have time for questions. hopefully from the virtual audience and the real audience. we understand there are a lot of virtual attendees. i will start by situating this in the early 20th century. i wrote an op-ed in slate in which i invoked saturday night live in terms of its critique of the dobbs opinion. ..i did that because i am an expert in methodology aside from writing this book many years ago, i study how the court cited cases. i have become a critic of an approach that is sometimes called originalism. that says that we should go back to the time in which the 14th amendment of ratified -- was ratified. one of the reasons i wanted to put this pain out one of the reasons i wanted to put this panel together is because we're going to talk about something that is lost in that, just the greatestth generation, the 20th century. and the greatest generations struggles are things that i believe are important to understanding our constitution and how our constitution has developed and what weit can lean fromns constitutional law in the 20th century will have an important impact on howow you dress questions involving abortion and bruce ohr from two leading scholars professor murray and professor goodwin this now, , this case really can't be understood in terms of its difficulty and why it seemed impossible it would get to the court aside the fact there's no right to counsel for these. the law wasas against them. why? because the supreme courtaw had ruled earlier in an infamous case called buck versus bell that sterilization was perfectly appropriate and in oklahoma in skinner the governor and the legislature and said we're going to sterilize the prisoners inside this prison. the law was deeply against him. why? because of mark. let me take if humans to talk about buck. it is a far more well-known case. they're been documentaries. i will talk about buck and then move onto skinner and finally come to conclusion about the differenceser between male reproductive rights and female reproductive rights in 1942. so we will have to go back in time to the 1920s. in that heyday there were many ideas about what to do with the so-called unfit,le that category was amorphous and could include all sorts of what we would think of as stereotypes today in terms of race, disability, ethnicity. yet understand race was quite different at the time. the term race could include women, could include at the time the greatest criminals were considered irish. the irish were considered black. so different ideas of race at the time wereea percolating, and eugenicists, in any event during its heyday a majority of states passed sterilization laws and they did this on the theory that this would read folks of the unfit. but at the time their questions about the constitutionality. many state courts held this is cruel and unusual punishment. or something constitutionally wrong with them. there was a lot of legal uncertainty and finally in kind of a made up case that was intended for the court of virginia doctor and folks decided to bring the buck case to prove it was constitutional. infamously justice holmes, though known as a progressive ruled sterilization was perfectly appropriate and he coined some of the most infamous words ever out of his mouth, three generations of imbeciles are enough, he wrote in the opinion approving sterilization for carrie buck. so this was the first reproductive rights decision for women in the 20th century and he basically said you were at the mercy of the state. if it is for health, welfare we can determine that. what's even sadder about her cases we now know because books of been written about it that her child was not unfit, was not feebleminded which was a term of the day. we also know she was raped by an uncle and that's what she was sent off to the asylum. so it's a deeply, deeply offensive case. it is never, however, been overruled. so by the time we get to my prisoners in case youou can see the law is against them. the law says the state may, in fact, determine the appropriate of rights, those rights are subject to state power. so as we are thinking about this we also ought to think about what happens in the 1930s. sterilization was kind of a hobby for some people. he was also promoted by award-winning geneticists who thought it was a grand idea and by immigration reformers and by great institutions like the carnegie institute and many other fine groups. why? because it was supposed to rid society of that genetics. this seemed at the time fully appropriate. after all, they hadim been experimenting with genetics and fruit in california for decades at the time. what's good for fruit? maybe that's good for america. so what happened during the depression was an intensification of negative eugenics, negative eugenics being sterilize individuals are addressed their appropriate of rights for people because we will save money. this is what happened inon oklahoma. there was an insistent push during drought and dust when they were bombing the clouds and everyone was suffering greatly to try to rid the asylums of those who are considered unfit. e she had been the victim of rape. the people who ended up in the asylums were generally white because others were not considered, they didn't need to build asylums that would allow for the care of white persons or native americans at the time. for white persons at the time, the question was where you unfit for various reasons. i want to talk about eugenics because the term is fill up -- full of contradiction and it was at the time skinner versus oklahoma was being litigated. there was negative eugenics which was about ridding society of the bad genes. america was a leader and that. most of the states had sterilization laws that applied to the feebleminded or unfit. we sent those laws to hitler's. this has been documented. eugenics itself had two different faces in america. this is why people were not upset about these laws i believe because it had a positive face around the meaning of help and eugenics. -- health and eugenics. that was the opposite in some ways of what we think of today. it had a meaning or it meant just we have healthy marriages. there were divorce counselors saying you should get it divorce if you aren't going to have healthy children. they had books that were really sex education but they were labeled as eugenics. it had an anodyne air for many people which is why i believe people were not particularly alerted at the time these laws were being passed to the dark side of eugenics that they could be used in very dramatic and evil ways. fast forward, we have a lot of eugenic laws, rest forward to the 1942 opinion skinner versus oklahoma. the prisoners bring this case because they think they're going to be castrated. they're terrified. it takes them seven years to get to the court. the aclu says we won't take you. they hire the local lawyer, he goes to the wisconsin supreme court and then finally they riot. prison breaks were common at the time. oklahoma in august is very hot and they are at -- they had gone to the supreme court that said it was just fine in oklahoma and killed the warden. the warden is very well-liked. he has helped the prisoners bring the suit in part. and allow them to do research to try to show whether you inherit traits. p is supportive of one of the leaders of three who hires a lawyer to bring the suit. by 1941, the world has changed. we are at war. they search around for someone in oklahoma who has taken a case to the supreme court. they find one and oklahoma is full of flyers so they are at the edge to file their case in the u.s. supreme court when the break happens. when the warden is killed, no one will take the job unless the case goes forward. i find a lawyer who commandeers an airplane and fly to washington in 1941 and gets a stay from a justice on supreme court and the court decides to hear the case. why? the president they have goes the other way. -- the president they have goes the other way. if you read it you'll understand why. let me talk a little bit about the case and how it is decided because it is different than what one might expect today. the most famous lines are these and i will read them because i think they're important to the current debate. justice douglas writes this case touches a sensitive and important aria of human rights. oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race. the right to have offspring. the power to sterilize is exercised may have subtle devastating far-reaching effect in people or reckless hands -- in people or reckless hands, can cause types to wither and disappear. there is no redemption for the individual whom the law touches. he is forever deprived of basic liberty. so begins his opinion. as it goes on, the opinion decides the real reason the law is unconstitutional is equality often causes people some concern. you started off talking about riot, now you're talking about equality. it goes on to talk about how the law distinguished between chicken thieves and skinner had been the chicken thief who lost unarmed. he was considered unfit for that reason. they were three-time losers who had committed crimes of moral turpitude. it exempted white-collar criminals -- criminals like embezzlers. the criminality was about the distinctions in the criminal law. what's fascinating is that it introduces a concept called strict scrutiny for the first time in constitutional law. buck had rejected the equality argument. not only rejected the rights, but the equality argument. to get around that, douglas creates a new rule. he says in a case like this for there is so much at stake, we have to apply strict scrutiny to this kind of distinction. he marries the consequences of this which are irreparable, the liberty interest to the equality interest. not particularly well as we will see from the other opinions that fester barrett going to talk about. -- professor very is going to talk about, unfortunately along the way, he never overrules. at the end of 1942, the men of the prison have one an extraordinary victory and prisoners would not be sterilized in the future paste on skinner versus oklahoma. -- -- based on skinner versus oklahoma. as the professors have written, what happens is that women are still stuck in -- state continue to sterilize them. ultimately, it becomes racialized in the 1950's and 1960's. as justice douglas indicated, the power to sterilize may have far-reaching and devastating effect in people or reckless hands, it can cause types to disappear. women who are black were sterilized because they were black. i will leave you with that sad tale. we're going to go on with 1942 and professor barrett is going to talk about the rest of the opinions in the case as well as professor snyder who knows quite a bit about an addition made by someone who knew the link between nazi germany at 1942 unlike any member of the court at the time. over to professor barrett with professor snyder weighing in. >> i want to go dark. does it have a blackout button? >> good afternoon. it is a pleasure to be with people. 2022 feels like a new weird thing. it used to be familiar in academic settings, conferences, judges in numbers. now it is creeping back and it's a delight. it's familiar and a delight to be virtually with those of you out there. i'm very grateful to the professor for her incredible book and for putting this event together on skinner day. it's not a holiday, but it is the 80th anniversary. my topic will be to talk about justice jackson who wrote a concurring opinion in the case and how it is a significant part of his constitutional thinking and legal career and how it went all the way in a brief terse statement to see what skinner's ultimate implications were. that may begin in 1942 and this is a picture of jackson outside the white house. by the time it came to the court, jackson might well of been in his second year as president of the united states. it might have been a very different court because jackson would have made the appointment of the chief justice who succeeded charles evans hughes who succeeded in 1921. president jackson also might not have appointed senator james byrne of south carolina to the other vacant seat on the court. we do know that although there was much jackson for president in the air in the late 1930's and into 1940, fdr changed his mind if that's fair. world events played a role. he didn't retire after two terms, he got reelected to the third term and in june 1941, he elevated stone to be the new chief to replace hughes. he appointed burns from the senate to fill the vacant seat and he elevated his attorney general robert h jackson to the court. jackson age 49 leading national figure is the rookie justice. that meant that he wasn't a leader or a significant player on the court. justice douglas wrote -- he is the justice who writes the opinion. he is in the back row second from the left. he is not very senior. stone in the front and center is the one who assigns it to douglas and stone did that for a particular reason which i will flag. jackson on the far right in the back row, the junior justices to be seen and to vote, but not so frequent to be heard from. justice douglas writing for seven justices held that the oklahoma habitual criminal sterilization act under which esther skinner had been prosecuted and convicted was unconstitutional on its face because it drew arbitrary irrational lines, classifications that violated the equal protection clause of the 14th amendment. chief justice down wrote -- stone wrote the next opinion. he concurred only in the result. the reason he did this is because stone as an associate justice had been part of buck versus bell. he was sidestepping. he didn't join the equal protection analysis because buck versus bell, it had been called the last resort of desperate litigators. stone grounded his concurring simply in procedural due process that mr. skinner was entitled to a fuller trial. thus the big shots have spoken in skinner versus oklahoma. robert jackson's opinion is innocence gratuitous. it is unnecessary, but it comes from something internal and heartfelt. it is only four paragraphs long. this douglas and this is stone and this is jackson. this is the entirety of jackson's opinion. it is four paragraphs stitched together three paragraphs from a second page but it is basically one page. it is not one of the better-known's -- better-known pieces of jackson's career. my argument is it was truly big. for him and for his career and for the developing of constitutional law since then which includes how the supreme court to this day should think about re-productive rights. robert h jackson was not an enthusiast for what we call substantive due process. others would call judicial activism. think of his concurring opinion in the railway express case where he explains the desirability from the perspective of democratic theory of grounding decisions in equal protection clause. equal protection leads to political process or recourse. if something is unequally unconstitutional, political process can equalize matters and fix the problems. sterilize everyone or ban every truck from having advertising as it goes through times square in new york. the due process clause takes issues away from the political process. a constitutionalize is something as fundamental and leaves the legislature little space to tinker. a second example of his negativity. think of his boat the court majority -- his vote -- rejecting the claim that the 14th amendment incorporates in its entirety the bill of rights as strains upon state governments. jackson is not a liberal living constitutionalist throwing new rights on the table. but, he picked his spots. let's think of the adamson vote which was open to the idea that the 14th amendment incorporates selected most fundamental bill of rights protections as part of the process constraint. now circling around, make about skinner. the first paragraph of jackson's opinion is the clever pen of jackson. he says douglas decides on equal protection but does not decide on procedural due process. i joined both of them because they should each join each other. both of these things are problems in the case. now, paragraph two. paragraph number two is about procedural due process. he says alternative laws might raise different procedural questions. who should be sterilized might translate into the need for much more protected individualized hearings. that's not the oklahoma law. it is three times convicted criminals. he also says a more narrow classification might require less process if it is really a rightful shot or two or five. that might permit summary hearings and -- what oklahoma has done is something in the middle. that's why i think stone is right to. interesting, not vital. the next two paragraphs are for jackson and a big part of action. he calls to substantive due process rights. he says this eugenic sterilization program raises constitutional questions of gravity. he says yes we have this precedent. it upheld sterilization of a woman found to be an imbecile. notice how dry descriptive non-embracing checking the box acknowledging the precedent but doing no more than that jackson is -- grave constitutional questions. then paragraph number four. there are limits he writes on governments meaning the political majority of the public's ability to conduct constitutionally biological experiments on minorities. the language is here and is worth parsing slowly and carefully. biological experiments that produce the dignity, the personality, the natural powers meaning the bodily functions of a minority even those who have been found guilty of what the majority calls crimes. jackson says this easy case doesn't raise the ultimate questions. i only mention to avoid the implication that such a question may not exist because it was not discussed. on it, i reserve judgment. as a reservation of judgment goes, this is waving a big red flag about the concerns that he has. this constitutional dignitary and concern for natural bodily powers becomes part of the protective legal vision that is a defining aspect of his life and career. i will flag a couple of different columns. first, you see it in the supreme court judging. his concurring opinion the previous fall in edwards versus oklahoma where the court struck down the california no travel statute and jackson said freedom to travel is a privilege of citizenship in this country. it is a bodily function. it is walking or driving or going from here to there and jackson puts that marker down his first opinion. a second opinion, his most famous. in west virginia state board of education versus barnett, the next year after skinner. jackson writes for the court striking down the states compulsory flag salute and pledge of allegiance law. overruling the decision of a few years earlier. he writes this sentence which is the conclusion. the very purpose of the bill of rights was to withdraw certain subjects from that disses the toots of political controversy to put them beyond the reach of minorities and officials and to establish them as legal principles to be applied by the courts. one's right to light, -- life, liberty, property, and other rights may not be submitted to vote. a depend on the outcome of no elections. now think a minute about what barnett was about. these two jehovah's witness schoolgirls had religious scruples against pledging allegiance to the flag because the book of genesis says thou shalt fall down before no graven images. what the state of virginia was trying to do is force its orthodoxy into their mouths. a kind of physical intrusion. it is that coming back out of their mouth's out of their bodies that jackson is drawing the line against in barnett. a third decision, it is there in the dissent where he is one of the three justices who votes that the exclusion order against japanese americans including a vast majority of citizens during world war two was unconstitutional. that is a fifth amendment substantive due process decision and jackson says fred didn't choose to be japanese-american. the federal government chooses to use that to physically relocate him by ordering him excluded from the west coast. he says our constitution does not permit. fourth vote jackson joining justice frankfurter's opinion for the court in 1952 where the court unanimously with some division strikes down the forcible stomach pumping of a man to extract physical evidence of drug crime. jackson voting for the body against the government's ability to mess with it. am i saying that justice -- jurisprudence the charge? no, it sprinkled the seeds to understand that as fundamental rights go, the body is high in the hierarchy. jackson did more than judge. this is harry truman in 1945 appointing him to be the u.s. chief prosecutor of the nazi warm curve -- war criminals at nuremberg and jackson goes and this is a whole year of the supreme court to prosecute in this courtroom the wagers of aggressive war, the perpetrators of the holocaust, and all of the dimensions of physical subjugation, violence, extermination that nazi is contained. this is jackson at the podium. these are the defendants who were perpetrators of command decisions that were part of bodily violence among other crimes. jackson is standing for the same principle that he is articulating in skinner. am i saying that robert jackson would have been the eighth vote in roe v. wade? of course, he died in 1954. he is only 80 years old if he lives until 1973. younger than justice breyer is today. or if he was the longest living person in the united states, he would've been about in casey. that is where skinner and nuremberg and all of this points. was it really all of their in 1942? yes, to a close and discerning reader. this is a letter that the u.s. attorney in buffalo, new york sent to justice jackson. his name is robert hitchcock, he was later part of a big new york state law firm. young hitchcock is acquainted with jackson and he writes this letter on his opinion and he focuses on the statement that there are limits. hitchcock unfolds this and says sterilization is a popular weapon once the principal is approved. we can eliminate juice, communists, any other class. he makes a joke about shakespeare's line first let's call the lawyers. his response is thanks about the lawyer joke but doesn't disavow any of the heavy reading of paragraph four that there are limits concept. the import and breadth of skinner came to be better understood over the next decade. the supreme court builds on it in griswold versus connecticut. loving versus virginia. general individual rights to use contraceptives. roe v. wade and planned parenthood versus casey. this all grew out of seeing skinner as huge. professor nurses book allows us to see it as a historically huge but to see it as constitutionally huge, the credit goes to professor laurence tribe of harvard law school who said what skinner stands for is strict scrutiny, but not just of fundamental rights. not just the bill of rights and not things that are otherwise protected in explicit constitutional terms like race. it is also individual interest that aren't yet recognized as fundamental, but are the areas where the government can make choices for people about the things that matter most to them, their bodies. where the danger is too great, that the body would do this to impress and subjugate minorities. skinner is a gateway to a category of new fundamental rights. in explaining that, he says it is a start that the supreme court ended to the constitutional firmament. that's not far off and it is clearly a little bit influenced by jackson's description of the thick start in our constitutional constellation and tribe credits douglas and jackson. in conclusion, as jackson and skinner felt and explained, our constitution is about many things. liberty and equality intertwined in the bodily realm is at the heart of what our constitution is about. this is my body and that is yours and yours and yours. not the government. except in truly extraordinary circumstances that may be can never be envisioned. in the specific role of reproductive function and sexual capacity, that means the government should trust each of us equally and respect the liberty of each of us fully with respect to our bodily functions. that means to have heterosexual sex or not. to seek to impregnate or to become pregnant or not. and to continue to be pregnant or not. what of all the nazi talk that can be lobbed against government actions? it dilutes history and cheapens argument to call a government that makes any choices for people nazi government. there is only one of those and we should remember it in its reality. on the other hand, understanding that government which is deeply restrictive of liberty and hostile to fundamental equality is attacking something unitary in each of us and vital and fundamental in each of us is a lesson we take away from the 1940's and nuremberg. these are not ways that a decent dignified society should constitute itself. in our legal system, which requires government to provide due process and equal protection, it is not how we are constituted. thank you jack skinner, his lawyers, supreme court, robert h jackson for standing up 70 plus years ago for that and for teaching us now. >> thank you for that. after i talk a little bit about justice frankfurter's role in this case, professor murray is going to speak next. i want to take us back to 1942 for a minute and remind people about holding in skinner. the holding is an equal protection rationale. that most people believe is due to the influence of felix frankfurter on the decision. let me tell you how we got there. as was alluded to, he was privy to what was going on overseas perhaps unlike any other justice in 1942 and there are a couple of reasons for that. number one, since 1933, frankfurter had been when he was harvard law for fetzer -- professor he was an advisor for franklin roosevelt. he continued that role is outside advisor after roosevelt appointed him to the supreme court in 1939. judicial ethics then were as challenging as today. not only that, frankfurter was instrumental in getting henry stimson appointed secretary of war as an acting supreme court justice and one of its former students john mccloy was serving as a chief assistant. on the regular, frankfurter was having conversations with both -- both stimson and mccloy about the war and atrocities the nazis were committing in europe against juice -- jews and gypsies and others that were not part of the arian race. not to mention the nine years since the rise of hitler's that frankfurter had been working on this issue of trying to get jewish refugees out of your. -- out of europe. that is a backdrop of this. i don't think any of that had to do with frankfurter's pushing his colleagues to adopt an equal protection rather than a due process rationale. frankfurter believed there should not be a due process clause in the constitution. he thought should be written out of the document and the reason why he thought that was because he opposed the idea of judicial supremacy and thought that the due process clause gave the justices too much power. he saw the court as reactionary and anti-labor. throughout the early part of the 20th century, the court used the cost to strike down lots of prolabor legislation. he was loath to sign onto an opinion with a due process clause rationale and he didn't distinguish between good due process decisions or bad once. let me give you two examples. meyer versus nebraska 1923. that law was passed to ban the teaching of foreign languages in schools in the state of nebraska. it was an anti-german law. pierce versus society of sisters 1925 was an oregon law inspired the kkk to try to shut down all of the catholic schools in the state by requiring schoolchildren to attend public school. the court sided with the angels in both of those cases on expensive use of the due process clause, struck down both of those laws and frankfurter thought they were wrongly decided. that most of our constitutional change should come through the political process and not from the supreme court, expanding like an accordion the due process clause. he thought when it came to federal laws that the court shouldn't be striking down federal laws unless they were unconstitutional beyond a reasonable doubt. he had few exceptions. he was willing to side with criminal defendants like in skinner. he was also in favor of what we would call civil rights and was a leader in the courts move to get a unanimous decision in round versus the board of education. the other thing he didn't like and that hasn't been talked about yet was chief justice downs footnote in another decision. the idea of strict scrutiny in skinner. in the footnote caroling products, chief justice stone famously writes that the court will take a harder look at cases that infringe upon the bill of rights or the political process such as voting or -- frankfurter was skeptical of this approach as again giving the supreme court too much power to decide when there was a defect in the political process and it should weigh in. he very much favored a judicially minimalist equal protection rationale that the state of oklahoma wasn't treating similarly situated people the same way by making embezzlement not a crime of moral turpitude, but stealing chickens or robbery a crime of moral turpitude. the state of oklahoma was treating equal things unequally. i think that was frankfurter's way of deciding on behalf of these criminal defendants but not creating another expensive substitute due process position. i'm going to hand it off to melissa and michelle in case you are bored about 1942. [laughter] >> i apologize for not being able to be there in person with you today, but i'm excited to have this conversation with everyone. i think it's a timely conversation. i will begin first by noting my priors. there are lots of things we could say at this moment about the current landscape for reproductive rights, but i appreciate that this event is focusing on the past as a vehicle for understanding the present and possibly forecasting what lies in the future. i wanted to focus our discussion on two recent writings from the supreme court. box versus planned parenthood of indiana and kentucky and the leaked draft opinion in dobbs versus jackson. let it begin with the box concurrent. in may, 2019 the supreme court issued an opinion on the shadow docket. that case is a challenge to two abortion restrictions. one of which prohibited abortion if it was intended for purposes of race or sex selection or because of the diagnosis of a fetal anomaly. although the court granted up to one of the challenged provisions, it did not -- as to the challenge trait selection law. the fact that the court refused to hear a challenge to the trait selection law prompted justice thomas to write a separate concurring opinion. he chided gently. that might have been the end of things, but justice thomas went further. crafting an opinion in which he not only insisted the court would one day have to deal with the prospect of trait selection laws and that they were modest attempt by the state to prevent abortion from its eugenic potential. he further went on to craft a history of eugenics in which he conflated the history of abortion as birth control movement and wink at to the history of eugenics in the unites states. justice thomas is no doubt speaking about the disproportionate -- rape proportion among the black community and viewing it as that residue of an effort to market family-planning to the black community. then justice thomas invoked -- the 1927 case in which the court credited virginias eugenics program which targeted feebleminded and where the court lent it -- to the in -- eugenics movement saying three generations of imbeciles is enough. at this time, justice thomas circled back to the trait selection law observing that sexual restrictions were states modest attempt to ensure that eugenics could not be used to fulfill its eugenics potential or abortion could not be used to fulfill its eugenics potential to eliminate unwanted traits or characteristics. when it was announced the concurrence received some attention, but it was overshadowed by other major developments of the term. it is fascinating in part because it is entirely gratuitous and it touches on so many things we are currently seeing in our reproductive rights landscape in particular of what us to understand the concurrence as an attempt by justice thomas to -- the contemporary meaning. one of the ways that reproductive justice advocates have argued is that impositions on the abortion right are not simply assaults on women's autonomy and equality, but that they disproportionately impact women of color and poor women and therefore they should be understood as posing intersectional harm. it struck me as i read the concurrence that justice thomas seemed to recognize the way in which the reproductive justices had seemed to shift the debate away from this question of equality and autonomy for women and had instead reframed as a question of racial justice or racial injustice. specifically if reproductive rights movement in tandem with the reproductive justice movement had argued that abortion and reproductive rights were about ensuring women's equality and racial justice, justice thomas is concurrence turned that logic on its head to counter that the real racial injustice that was being done was not what abortion restrictions did to communities of color, but what abortion itself does to those communities. on one level, the box concurrent offers a defense of laws that has already been percolating in the lower federal courts. indeed in the seventh circuit, judge easterbrook wrote the dissent in which justice amy coney barrett joined saying that trait selection laws might fall outside of the scope of roe v. wade and planned parenthood versus casey because those cases had never considered abortion restrictions that were not aimed at promoting women's health, but instead were positioned as fetal antidiscrimination matters -- measures. the box concurrence provided additional support for this that state restrictions on eugenic abortions functions as antidiscrimination measures and thus are outside of the scope of roe v. wade and casey. that is not all it says. in the short term it offers that defense of trait selection laws. as i argued in the harvard law review, box concurrence goes further to lay a foundation for overruling roe v. wade and planned parenthood we casey that our right to abortion does not begin in 1973 but rather that it's roots earlier in the 1920's with the eugenics movement and in the racial injustices of the eugenics movement. to be clear, one of the important contributions that the box concurrence made is to provide a language for talking about ro and for overruling roe that is rooted in ruling out racial injustice and remedying that racism. there's a lot of history in our constitutional past for overruling cases on the ground that they are rooted in racial injustice. all we have to do is look to the most famous case, brown v. board of education. this case was not only famous to law students, but figured prominently in the oral arguments in dobbs versus jackson on the ground that this is an example of the case where the supreme court had appropriately departed from starry decisive to overrule a past president -- past precedent. in brown, the court revisited plessy that it did not take into account the damage that segregation and post black schoolchildren and without reason, the court departed and overruled. we have seen more recently similar impulses toward correcting and remedying racism and racial injustices as the court has overruled earlier cases. consider the october 2019 case which invalidated louisiana's policy of -- the question of whether nonunanimous juries were consistent with the amendment were considered in 1972. nevertheless, the ramus court concluded that because the first was out of step with jurisprudence and because the court had failed to consider the nonunanimous journey -- to reroll origin in a reconstruction ruled effort, the 1972 decision could be reconsidered and overruled. the court's disposition of ramose suggests how roe v. wade could be revisited and overruled on grounds of racial injustice. justice thomas's critique of abortion furnishes new justification for reconsidering and overruling that embattled decision and specifically these new factual circumstances that justice thomas serpas linked roe v. wade to a history of race that could render it an abandoned doctrine. for that reason, i was interested to read the leaked draft opinion. notably, in the text of the opinion, justice alito did not reference eugenics at all. even more meaningfully, and are not, there is considerable discussion of genex in a footnote in that decision. footnote 41. there, justice alito observed that a series of briefs filed before the court had noted that some such supporters of liberal access to abortion had been motivated by a desire to suppress the size of the african-american population. he then went on to say that it is beyond dispute that roe v. wade had passed that demographic effect. a highly disproportionate percentage of aborted fetuses are black. i wanted to stop about that footnote. as we have all discussed, the decision to overrule roe v. wade has nothing to do with eugenics. justice alito links his to the fact that a right to an abortion is on enumerated and is not deeply rooted in the history or tradition of this country. for that reason, it seems entirely gratuitous that this footnote appears in the draft opinion. there is no need for it. they have already decided that roe v. wade is egregiously wrong, they don't need to stand by stare decisis because of the unenumerated right that is not deeply rooted in the nation's history. why is this footnote included? is it a nod to justice thomas? a collegial gesture? perhaps. more interestingly, as i have argued elsewhere, this again creates the conditions where reproductive rights are inextricably linked to eugenics and while that might not necessarily have repercussions for abortion once ro is overruled, it may lay the groundwork for countering other reproductive freedoms including the right to access contraception and indeed, the argument that justice thomas kraft in the opinion about the link between -- is most forceful in condemning birth control and access to contraception as a to the eugenics movement. that is one thing we might take out of the dobbs opinion despite justice alito's efforts to sequester the question of abortion from other reproductive rights and other freedoms that are also unenumerated. this particular footnote might suggest that the majority is already laying a foundation for rethinking and perhaps indeed discrediting contraceptive access going forward. all of this suggests the effort to link abortion and contraception to the racialized logic of eugenics is very interesting on a number of fronts and very revealing. the effort to recast the social meaning of reproductive rights from equality is noteworthy and even utterly disquieting >> all of this suggests the effort to link abortion and contraception to the racialized logic of eugenics is interesting on a number of fronts. very revealing on a number of fronts. the effort to recast the social meeting of reproductive rights from a question of gender equality to one of racial inequality is especially noteworthy and indeed, perhaps even utterly disquieting, because what this narrative does not do and what it neglects entirely is the degree to which the eugenics movement's true investment in reproductive rights and controlling reproduction was not an abortion or contraception, but rather in coercive sterilization. it is the preferred vehicle of social engineering. so with that in mind, i want to consider what it would mean for us if we reframed this new interest on reproductive rights, racism and eugenics to focus less on abortion and contraception and more on a robust discussion of sterilization practices. what if we supplemented the historical narrative to clarify that the eugenics movements interest in racial betterment was directed at purifying the white race. it was a tool of white supremacy in optimizing whiteness. not necessarily stepping out blackness. what if we acknowledge that to the extent the eugenics movement focused on abortion and contraception at all, it was in limiting minimal and upper-class white women's access to those vehicles in reproductive freedom on the ground that the reproduction of those constituencies was absolutely vital to the future of the white race. what if we were to acknowledge that insofar as eugenicists were interested in limiting reproduction, their interest was not directed at the black community but towards those individuals who possess traits deemed unsuitable for the propagation of the white race. people who are poor, uneducated and unchaste. people like jack skinner. and meaningfully, what if we were to take seriously the true eugenic threat that >> what we l haven't talked about is even though that's the case and the social fervor for eugenics did die out, it was packaged under other guises under the welfare rights movement that it expanded the scope of assistance to women of color. to understand the relationship between race, class and dependence on the state, we might consider the case of cox versus stanton. a south carolina sterilization project, cox concerned the claims of nial bruce cox because she had given birth out of marriage and her mother and siblings received public assistance. if she did not submit to sterilization, they would lose their access to public assistance, the thing that her mother could not afford to do. as ginsburg and fasto argued, the north carolina violated her constitutional rights and condemning her for marriage. the case was moot because north carolina voluntarily phased out its program, but other contemporary challenges to sterilization abuse, the madrigal 10, the young women in miss miss and-- mississippi and alabama, all of this made clear, reproductive control well into the 1970's, interestingly, more recently, in 2020, in september of 2020, we were faced with a massive scandal in ice detention when it was argued that women in ice detention, who had been detained by the government, were being subjected to coercive sterilization without the benefit of consent or translator. that occupied our attention for all of one week and perhaps ironically, the news cycle shifted, justice ruth bader ginsburg passed away november 19th, 2020 and her passing utterly drowned out the state of those women in ice detention and the prospect of a conversation about relife coercive sterilization within our borders. today as we think about all of these different threads and an attempt to bring them together. i hope we'll look at this nascent effort with abortion and racism. not only affects the contemporary discussion of the future of roe versus wade, but whose it overlooks and occludes how it plagues certain communities in our country in ways that are clearly unequal and utterly unjust. >> thank you for that, professor murray for that powerful presentation. >> i want to thank professor murray and thank you, victoria for organizing us and bringing us together. so as i wrap up our panel's discussion, transitioning from professor murray provides a great pathway for me. i think about 1851 and sojourner truth's speech, and for much of history what is unpacked about that, she spoke about chivalry and what is curiously missed, the beginning of the speech she said and i bore 13 children and saw nearly each one snatched from my arms and nobody heard my cry, but god, ain't i a woman. and now, this is a time that is preceding civil war and the reason i take a page from history that goes perhaps a chapter before the conversation that we've grounded today in eugenics is really to hope to set the stage about what is staring us in the face, the potential that roe vs wade may be fully dismantled by this united states supreme court. as professor murray mentioned, over the last few weeks, we've always been stunned a bit by a leaked draft opinion. the draft itself is highly unusual. it's a story, but not the story. and the reason why the timing of that speech is important to this discussion, is overlooked significantly, but there's some not in roe vs wade itself, is the fact that abortion had not been criminalized historically in the united states, the pilgrims performed abortions, indigenous people performed abortions. abortion becomes a political wedge issue and a tool in the period leading to the united states civil war. at about that time, nearly 100% of reproductive health care in the united states had been performed by women. these were the midwives. if you pause and think about it, that's not a curious thing. there are no guys with lab coats and stethoscope wandering around the plains of africa or asia, ar anywhere else. gynecology becomes in the 1800's. if you read the story you notice their deep insecurity. what we call medical schools today are schools of anatomy. what you notice in the pamphlets, they called books, they felt intimidated by and threatened by the guise of anatomy who claimed they were doing nothing special, in fact, they were doing women's work and doing nothing elevated because half the people in the country doing that work were, in fact, black women. it's not that that story alone, it's that that story must be understood as part of a perfect storm what's happening. the rise of gynecology, by this time that were being perfected. and ways that they found alarming, deeply alarming, because enslaved black women were used as the guinea pigs, euphemistic guinea pigs. and marion sims who once had a statue in the park that was since been yanked, he would rouse in the middle of the night the black women he kept at the back of the house and he would cut through their body and lacerate and all sorts of things and he writes about this in his autobiography. who gets to tell the story and sit on the stage. i was alarmed when i read that autobiography, by that time there were statues of marion sims in central park and across the country. he was considered the godfather of gynecology. and he was praised by men of medicine, not the words of the women of the horror and terrorism that he inflected on their bodies. and he described it that they did not feel pain, as he would cut through with any relief. and in perfect storm of biology, and the coming of the civil war that leads them to write about the urgency of white women spreading their loins north, south, east, west. abortion becomes an expedient tool for the men of medicine to shut women out. and you see it quite directly in their leanings. they lean into legislators who were quite keen on preserving slavery, who are quite concerned about the terminology that we're hearing today, replacement theory, the notion if in fact the civil war comes, as black people are released from the bowels of slavery that they'll darken the united states. so they write about the cruelty of these midwives, the unsanitary nature of these midwives, the evil nature of these midwives, the amoral things they're doing, but ultimately it is a mode of capitalism, it is a mode of monopoly, it's a way to shut women out and they're successful. this campaign, which again, is part of a perfect storm, we go from the 1800's where women are in control of reproductive health care, it's not surprising, to the time of the earliest 20th century, down to 1%. and i think that's in fact worth noting. now, if we think about racial hierarchy beyond that truth. the coming of the civil war. they'll know that racial hierarchy is the elephant in the room and the dividing line for power, freedom and self-governance and i want to take a moment to basically cross off a few issues here. one, talk about racist proxy for the political power and how we see that in this moment, building off the what professor said. try this historical thread and then move us to the present in what i would call the new jane grow and what comes next. to properly undertake the examination of what we could call eugenics is a form of racial caste in the united states, really requires engaging beyond law, reaching to the tools and fields of history not only to impact laws' racial trap, but undisguised by the future slave act and myriad cases, but a lasting haunting cultural and rhetorical norms and mores in our society that would lead some people to believe that what was articulated in justice thomas' opinion and robust footnote would actually be accurate. that footnote 41 that professor murray spoke to. so first, let me talk just really quickly about the ways in which law has been complicit. and i think it's really important in what by co-panelists have talked about, the ways in which law has rooted so much of this. if we again take chapters back and think about eugenics as part of the racial caste, the die has been set. and some of the first laws in the colonies and in the united states were those that would designed, that designated that all children born of enslaved women would by law inherit the status of their mothers. this proves important for denying the offspring of white slave owners it saved purposes, it shielded men to their black off springs. they could never establish freedom, paternity, intear tans and safely perversely incentivized white male slave holders of sexual assault on their enslaved property, that enslaved property, black women and they lacked rights and could not lay claim even to their very own offspring or spare them from enslavement. black welcome and their offspring were considered the property of those who owned them. not just white men owning black people. white women did, too. but to further see the tools of law and the chapters before eugenics meant moving to hypodescent. and anyone with any african biological heritage would always legally be designated as black and therefore, legally, by law, right, inferior. and then we have the third guardrail in the kind of protection of -- laws protection of white men before we get to eugenics and happens to be the idea that people should be barred from marrying people outside of their own race and specifically this was about creating guardrails around white nice. how to eugenics, it's an important conversation to be had. i'll get to the present, i will. and eugenics was important and as mentioned by professor north, something that was not a kind of black, white enterprise. there was 36 different categories at the turn of the century. eugenics was about policing whiteness and the boundaries within whiteness and also, outside of it, too. and it's worth noting that there were law cases that often are not evoked in conversations like this, that deserve to be. eugenic practices in the united states further demonstrated the policing and the boundaries of whiteness, but courts policed it, not only inside, but also outside giving further evidence and weight to racial caste in the united states. legislation and courts reserved whiteness which reserved only those who appeared white and those of you who know the case i'm going to talk about, finn. the case in 1922, the court said the provision is not that negros and indians shall be excluded, but it is in effect that only free white persons should be included. the intention was to conifer the privilege of citizenship upon that class of person who the fathers knew as white and to deny it to others so classified. >> these were back-to-back, where asians were suing to become essentially white. they didn't really want to become white. but jim crow laws thousands relegated people to second class citizenship, black people. we see asian folks suing and cases coming to the supreme court, challenging this seeking to become citizens, and in the case what is white. and the case will lead up to the presence. the justice wrote, it may be true that blond scandanavian and the hindu may have an ancestor, but the average knows perfectly well there are unmistakably profound differences between them today. and it's not impossible if that come on ancestor could be materialized in the flesh. we should discover that he was i am self did i ever rengss. and what did that gobbledygook mean? >> we know it is by looking at it and these are ways of policing the boundaries of whiteness. what does it mean today? what does it mean footnote 41, in terms of justice thomas' concurrence? well, roe vs wade may soon be dismantled itself and what we see in justice alito's at least draft history, it's a turn to history, a selective turn to history. it's curious, multiple omissions and cherry picking through history itself. there's a term looking through sir matthew hale. women would have no by then selves and to justify marital rape and justify horrible instances of fathers being able to rape their daughters and seeing no consequences from that out of the notion of parental immunity. and u.s. court, state supreme court articulating that for daughters to be able to sue their husbands would-- sue their fathers would essentially mean disrupting family harmony. this is the history that justice alito cites to in the opinion that in the draft that may serve as the basis for roe vs wade. what are the real world effects? and i want to close on this and really we could spend a whole weekend digging so deeply across this. but the real world consequences take me back to sojourner truth and 13 children snatched from her arms and no one heard her cry except for goz. justice briar states a state that even from the c.d.c. and carrying to term rather than having an abortion, it's not controversial -- it's controversial in terms of the substance, but not the evidence, robust evidence that we have. if we're to take any pause on what sojourner truth said, we might think of this in contemporary terms a woman in mississippi 118 times more likely to die by carrying a pregnancy to term than by having an abortion. nationally, black women are three and a half times more likely than their white counterparts to die by carrying a pregnancy to term. let's be clear, this is no panacea for anybody in the united states. given that the united nations ranked 55th in the world. the united states is not in the company of other stillized nations, air quotes around that, but it's not in the company of sweden, england, germany or france. no, the its is with saudi arabia, that tolerates the stoning of women, and lashing of women. what comes forward, justice alito claims there are guardrails potentially that row could be dismantled, but there are that might protect contraceptive access or same sex marriage. and those are proposing the most aggressive anti-abortion laws already legislators making claims that they next will in fact, make sure that contraceptive access is not available in their states, such as iud's. and that's little given, and perhaps a same-sex couple or a couple that happens to be interracial. there's more, but i want to give pause to give discussion that we can have as a panel here and let me just close by saying this, one of the things that i find most alarming by where we are today and back with this leaked draft opinion, is that there's a level of cruelty and some might say that cruelty is the point. nowhere in the leaked draft opinion is maternal, and something that we haven't seen a few years ago, are no exceptions for rape or incest, none of that is taken up in this leaked draft opinion. what in the world could we call given what's at stake in our country. >> thanks so much, professor good win. >> i think we'll try to take some questions and open up the floor. first the people in the audience, i have a couple of questions online that i'm going to read as well. is there anyone in the audience who wants to ask pa request before i start in the online questions? >> let's wait for the microphone real quick. >> thank you. thank you for being here. i'm curious, there's been a lot of originalist scholars who look at the drafts, the public meaning scholars, especially because eye abortion was little in the colonies at the time of the founding, and the states cited are not accurate. it was less than majority. so i'm just curious, do you think there's room for an alliance sort of among nonoriginalists and originalist scholars and people who think this way ton this topic? it seems there should be. >> well, i'll just begin, you know, and anyone-- since i focus on, but i'd be interested to hear what the other panelists have to say. you know, i don't know if there's an alliance, you know. i think we'll be happy to have the original out there and why the alito opinion would not read that way when it was issued. i also believe and this is just my guest based on last term, i've been studying every opinion in like the full universe of opinions and the article that i just gave up at harvard. and it looks very much to me like a case called fulton which involves religious rights and justice alito has a concurrence. this looks like conquers to me so the main opinion may look nothing like this, even though they're going to uphold. i expect there are five votes to uphold. and perhaps, you know, overruled roe versus wade and there for to be law. now, could there be an alliance? yeah, i mean, historically, people have made a very simple textualist, that hamilton will be rolling over in his grave, if you enumerate rights, some people say they're not written down. if we know this m 1887, surely we know it now and the history development is this idea why i think however imperfect this was why i wanted to try to give you a sense of the 20th century, as recognizing this. and this comes out of world war ii and recognition of the notion of human rights, which is what douglas and folks here is a worldwide development. so i don't-- i understand my colleagues who are here, we have om originalists don't necessarily think that roe versus wade should be overruled, and that is their position, you know, you can root it in the text, root it in other parts of the text, you can root it in privileges and immunities, but at the end of the day when i wrote my piece in slate, criticizing the leaked opinion for going back to the 13th century, 1868, i wouldn't be sitting here if it was 1868. amy coney barrett wouldn't be on the court because of the recognition during the 20th century that i sit here today. now it's possible to have a different originalist argument, but that's not the court so that would be my answer to my original, great, you have arguments, arguments, privileges and immunities clause, perhaps that would be a better world, right? but that was not used, i mean, it was not in any of these cases, in the early cases and so, however brilliant, you know, that may be as a solution to the originalist problems that women, this court haven't invoked it. so my critique of the court not originalism, in terms of practice. my view it's select, i think they have misread the second amendment, for example. so, over to others, who have something to say. >> i'd like to build on that. the selectivity which we see throughout. you know, one can see that throughout history of jurisprudence, one sees it quite deeply in this opinion and i mentioned earlier that it does matter who gets to read the book, who gets to sit on the stage, right? so, imagine if we any about the 13th amendment in ways other than that kind of it's just bygone and this idea of it and the 14th amendment. what might that mean in terms of originalism and textualism, what were they thinking? well, the library of congress and my home library and office library are filled with books where we understand what was happening during the period of slavery. we understand the sexual # written when the 13th amendment was debated. when you think of the 13th amendment neither slavery nor servitude will exist in the united states, dot, dot, dot, it's not just one being in the fields and picking cotton. it's involuntary servitude that black women had been subjected to as reproductive chatle. thomas jefferson kept his receipts. >> right, so imagine if women were rethinking the 13th amendment and saying this is how we understand the 13th amendment. it abolishes private and public entities from coercing involuntary servitude to force someone to be pregnant for someone else's interest is involuntary servitude. imagine if we looked to the text of the 14th amendment and how the 14th amendment speaks very specifically in its very first sentence, all persons born are naturalized in the united states are citizens of the united states. not the unborn. not fetuses, not embryos that are mentioned. what happens to be mentioned in the constitution are those who are born. and so, the selectivity, again, you know, one sees in this leaked draft opinion, but wish for us to imagine what happens when women are able to be the interpreters of our most cherished documents. >> i could follow up on that as well. i think that michelle and victoria are right, that somehow the right to abortion is textual and that's not the case. michelle is right, when they were drafting reconstruction amendment, they were doing with with slavery top of mind and focused on repudiating slavery and those characterizing the lives of the enslaved. a colleague of mine wrote a story of the constitution and family values and talks about how the 14th amendment was supposed to address the conditions of slavery, the conditions of enslavement, the fact that there was no access to marriage. the fact that there was no family integrity and your children could be stole away from you. the fact that there was no bodily autonomy and you could be conscripted in for the betterment of your master and they were specifically aimed at repudiating all of those. so when we concede that the right to abortion is not explicit in the constitution, i think we give up too much. like, there is an implication in that grant of liberty and the due process clause and the ratifiers and drafters of the 14th amendment understood what they were doing and they were responding to the conditions on the ground, the conditions of enslavement. >> absolutely. >> you have a quick follow-up? >> yes. (inaudible). >> so question was was because -- the question was, do you think it was a mistake not to brief the case from an originalist perspective because a lot of the historical arguments were neglected at least we've seen from alito's draft opinion? >> i'll take a quick quibble at your six, i think there are three self-proclaimed originalists and three others in the conservative six mostly disavow it. for tactical litigation reasons, i'm not sure that originalists would be pitching at a majority. and it's sort of on them, if you will, to join on whatever ground they want. we know, at least from this february leak, that five are where that draft indicates that they are. so, unlike a statutory case, for instance, where chief justice roberts and justice gorsuch, with their textualism, i guess, gorsuch, roberts we only have the vote. there's no sign of originalism on the court. and the ferment will continue, but that's not relevant to deciding the case. >> let me just mention something about that and why i believe he's correct in the sense i've been studying the court and calling the six originalists and textualists, someone who has worked as a lit gator there are differences to focus on the original meaning and their consistency with that as opposed to precedent. and that's why they've built up the theory about precedent. they know that originalism and precedent, they know the real assault is on precedent. if the text says it and your precedent doesn't, that's the problem, whether it's the meaning of the word legislature, and the elections clause, right? that's to get rid of prior precedence. so, that's why folks who are worried about precedent, like the chief, who is prudential conservative, you know, talks about history, you know, appeals to it in his opinions, but isn't as litigator reliable in that direction. they're more pragmatists to their appeal to history as guidance, but not as determining the answer as say justice thomas who tries very hard to be a more consistent originalist than even justice scalia, in my opinion. >> could i jump in for one second. i was struck by what professor good win and professor murray said and i think the left needs a strategy and i think that professor murray is absolutely correct that we shouldn't concede that abortion is not a right, i think we need a textual strategy, justice kagan said we're all textualists now. the 13th amendment building on jones versus mayer and the badges and incidents of slavery authored astonesbly by -- ostensibly, but i know that jack and others have been on this, but professor goodwin's em fa citizen on the citizen's clause could not be more right. right, that that made everyone equal citizens and that's what jacob howard said on his floor speech. this is the heart of the 14th amendment and we've lost site of what the height of that is. no way women can be equal citizens without control of their bodies. that seems to me an argument we have to make going forward and confront the majority with these provisions that it's ignoring. >> well, with profound, what took place and we know the exercise of what was meant by this because we can look to history. it was not just black men who were freed. if, in fact, as i mentioned in my congressional testimony a couple of weeks ago, if this were meant, that would only apply to black men, then we would have seen black women stuck in the same position as they had been before and the prevailing laws continuing. but that's not what happened so we can actually see the original meaning actually taking place afterwards and be able to see that. clearly the 13th and 14th amendments were not intended only for black men, i said then in text, practice and enforcement and demonstrates that congress did not intend that black women would remain in the confines of human slavery and the time that they overlooked this text application to all women and matters such as this. >> go ahead. >> i just wanted to throw in 1791. i agree with all of this. but at the start, the fifth amendment due process clause, yes, only for white men then, was a textual font for protecting their bodies and other fundamental rights and the civil war, post war amendments spread that more widely. so that due process concept, the 14th amendment due process and the 13th amendment. and the amendment, all of that is for the chosen people at the beginning and constitutionalizes it for all. >> there's one other point i'd like to add, i know we have other questions, that's within the con section of selectivity. i think what we've seen is this kind of outcome, determine native jurisprudence from the court, and the court generally, but i think we've seen this particularly with the hostility towards reproductive health rights and justice. one of the ways in which you can see justice alito kind of contradict himself is to look at berwell versus hobby lobby. there's no precedent, nothing in the constitution that you can find that grants religious identity to corporations yet we see justice alito and berwell v hobby lobby in 2014 go there. so i think when we sort of unpack this, we can be far nor nuanced, in fact, than just looking at the record of these justices to be able to see that it's not just selective, it's outcome determinative jurisprudence and i think it's a threat more broadly not just to reproductive health, but to our democracy and the rule of law. >> let me-- i want to hear from my brilliant co-panelists, but i want to read a few of the online questions so we can add their voices into the discussion and may build on something that professor goodwin is saying. isn't it true the anti-abortion movement is primarily through religious beliefs, and alito is focusing on personhood. is there a har gument against the alito decision on anti-abortion to seek to impose religious views on others. one other question, is there not a watertitle judicial doctrine only decide the case in front of them on the facts in front of them. if so, does judge alito look at dobbs-- >> obviously dobbs is on a lot of people's minds and i wanted to open that up more to my colleagues. >> i'll quickly say this that there is deep concern right now about xenophobia nationalism in our country and on deeper inspection, there's deep concern about christian nationalism on the rise in the united states. and this is being tracked and that is really quite disconcerting. what we see in terms of this view, it is not even a full scale christian view. it's an isolated christian view that's anti-abortion and certainly consistent with other religious ideologies in the united states and i think it's a good point that's raised by that particular viewer. >> the world would look very, very different if griswold had been decided based on the fact that it was largely an anti-contraceptive statute promoted by an elment of the catholic church because even catholics are divided on this question. so, very, very different. i want to say something about textualism. i think that textual arguments have to be made and what professor goodwin and i tried to point out. it seems simple, text seems simple, but it's not in the hard cases. in the easy courses, december 31 means december 31, i teach this all the time. 35 means 35 and that's not going to answer the cases. one of the annoyances that professor goodwin demonstrated, it picks and chooses the text it likes. forgetting the 9th amendment. the parts of the 14th amendment. so, someone who spent a lot of years studying it, i find it disturbing in the sense of its opportunism and that's why you see originalists coming to say, victoria's, you're right in terms of, you know, this isn't really an originalist decision, this is living originalism because there is text you could support. there is original history you could support, but that goes to a deeper program. why are we deciding cases? for 150 years we never decided cases this by. maybe 170. and why this methodology? because in fact what ends up happening in my latest study is that they end up looking at the consequences of their actions and one of the galling things for many women given statistics that are-- professor goodwin has noted is the effects of this ruling given the reliance that people have placed upon the right. so professor murray, over to you. i'd be interested in what you'd have to say. >> i think that's incredibly astute. you know, i do think -- i don't know if i would use the term selective text oochlt ualism or originalism more than i think it's doctor-- let me go back to the question about religion, professor goodwin is exactly right. there are plenty of faith traditions in the united states that do not have the same antipathy for abortion. and i was just at a thing for the national constitution center, a panel on abortion and guns, and coming together with wildly different results. somebody noted according to the court's interpretation of the second amendment, there was a right to self-defense that warranted liberal access to a right to bear arms and you know, i asked a question, like what if we understand access to abortion under similar terms of self-defense because, in fact, that is how the tradition of judaism thinks about it. if the fetus poses a threat to the woman's health or even her life, then she's warranted in dealing with it by terminating a pregnant. it is a mode of after defense. and ahead of the unborn with child, i would hope that we would see immediately after this decision, challenges rooted in religion freedom. one of the things we've seen in the last couple of years, this is a court that very much prioritizes, and perhaps to the detriment of the other part of the first amendment, the establishment clause, and so, you know, i think it would really kind of bring home the conflict if this court had to reconcile the antipathy with exuberance for free exercise. i think there was a complete clash there and interested to see how they resolve it. if they resolved it by prioritizing for abortion rights, i think we would understand that its understanding of even text-based rights, it's perhaps also similarly opportunistic. >> i want to build on that self-defense concept just by flagging an incredibly powerful op-ed piece in "the washington post" by manning, about the physical consequences of pregnancy and all the lasting health impacts. that's, you know, just empirical reality, that only applies to women, pregnant, childbirth, and goes right to the self-defense argument. so, putting those two together is an intellectual challenge that i think it's important to post. if i understand the question correctly, i don't think that speculating about the religious motivations of the justices is a productive enterprise, everyone comes from somewhere and it's a melange of their influences, learning, beliefs and some of that may be religious or irreligious and i just don't think there's an establishment clause doctrine against someone was a jurist that would make it an illegitimate decision. would i push that aside and i don't think it's helpful to the conversation. i think it's helpful when the justices show their work and are candid about text or original punl meaning or history more broadly understood or you name it, as part of the path that leads to the decision. that goes back to where i started. that's why i like jackson in his compact concurrence sort of saying, here is where i am. this supreme court writes too much, but it would be very helpful if every justice wrote in small bites a little bit more and showed their work. >> i just want today read one other historical questions because we have some experts on this fan. the question, can you discuss the fact that abortion treatments were widely advertised and accepted, even from the sears roebuck catalog until doctors took over ob-gyn. this was the mid 20th century, and alito comment that abortion is a new issue, the pope in the 18's. >> franklin wrote about abortion. and call it in terms of efforts to dismantle reproductive health rights, and also note in the context of this, it's important who gets to name what. right? because eugenics gets misframed. health and risks associated with pregnancy get misframed. to average person to sort of look at what happened and where the narrative goes, having a pregnancy is the safest option that a person could possibly ever have, that abortions were alarmingly dangerous and it's hard for people to say on abortion one of the safest you could have. it's more dangerous to have a colonoscopy than an abortion, they're incredibly safe procedures, but the narratives around this are completely inconsistent with that. the world health organization said abortion is as safe as a penicillin shot. terrific this point that's been made by the viewer here, but a couple of other quick points i want to make because we also misremember roe vs wade. it's a 7-2 opinion. five of the seven justices are republican appointed. justice blackwood was on by richard nixon. no one would say that nixon is radical. >> prescott bush, father of george bush, planned parenthood. dr. king from planned parenthood award, and he writes a speech receiving this award and how important it is that women are allowed to family plan. and he uses the word cruel to describe when people are coerced into parenthood that they don't want. that's 1966. >> (inaudible) >> a new narrative about eugenics and reproductive rights, i think is to opportunistically in the community. and what's missing from his entire-- are voices from people in the black community. it's true that this argument about racial genocide has been percolating in the black community. the black panthers talked about this, the nation of islam talked about the fact of government subsidizization of family planning being part of a genocidal plot. interestingly, black women, both inside the black power movement and outside of it, were incredibly skeptical of this narrative. and florence kennedy, and noted for her black brothers that we want to be a part of this movement and we want to be a part of the black power movement. if women are going to be part of it, maybe we need to travel light. maybe we don't need to be the ones at home raising your children and if you're really concerned about the question of genocide, she and other black feminists said, you shouldn't be to abortion and contraception. you should be concerned what's happening in miss miss where black women are literally being sterilized because they are dependent on the public. >> absolutely, and just to add to that, melissa, i'm so glad that you mentioned that. on the night that dr. king was to receive that honor, i sometimes say -- it was his wife coretta scott king identified herself as feminist, couldn't have been more happy to read his speech on his behalf and understanding the arguments at that time in terms of the importance of black women's autonomy with regards to their reproductive health. >> one more question, anyone from the audience before i turn it over? okay. so-- oh, one more, one more audience question. >> i'm really glad professor goodwin brought it up because it's not the most important issue, probably, but i think it is worth talking more about, the concerns that alito's concerns bring up i think are demonstrable. if that doesn't end up being the majority opinion, i wonder if anybody on the panel what it looks likes going forward if this opinion is, in fact, the majority? >> well, as i said, i mean, i dd i've been saying for years that the whole point of textualism and originalism since it's a new method is to reverse the warren court. the whole thing is to be against precedent. one of the things i'm trying to document that they're doing this all over the place it's not just the high profile cases, but this will looking at -- and look at young women, my daughter, mom, how can they do that? so, it really is an important moment for the method. it's important because one of the things if you care about the difference between law and politics, and been my student. i've tried to defend this, worked in the white house and the senate and i believe in law and its importance, it loses its value as law, there is no consistency. the best way to maintain that is consistency over generations. it's like a vessel. >> and people will different norms from 1942, but they're a signal of wisdom, right? i wrote my first article on the federalist papers, right. some of the wisdom can be false, you look at the first, right? and it's a way to bind the whole country, this is why eliminating the 20th century is a huge mistake, it's a huge mistake. whatever you think about the warren court, there's a lot more to the 20th century that we've learned in 20th century law, so many testify errors, you know, lockner, and some of it which is comes that everybody embraces. so i think they have a set, a standard accord to go justice barrett. we do our standard. i just, i think that the standard is easily manipulate able and this is why the case has not only an importance about abortion, but about law itself. >> i agree with that and i just want to flag justice thomas' recent comment in his conversation with john yu. justice thomas said it means you've got no argument. in fact, beginnings by making a clear argument, we stand here, which is on the path of history. i think that cardoza said something about the power of the beaten path. it may not be the right path, but it came from somewhere, it developed for certain reasons and it's commendably rational to note where one stands and i think that's the virtue in argument. >> let's be clear and i completely agree with my co-panelists here, that there are important reasons and occasions for overturning unjust laws and prior judicial rulings. we saw that with brown v board of education and when you look at the myriad laws that were-- that were recorded by polly murray in her book race laws, which judge marshall called, thousands of laws that kept black people in second class, third class, fourth class, you can't play checkers in the park. all of that, dismantling that, very important. but to another aspect of your question, i'm concerned about what this means when the-- what may come from the majority of the court saying, well, people take this to the state and the dog whistle that that means when it's been this very supreme court that's dismantled. key provisions of the voting rights act made it very difficult for black people to be able to exercise the right to vote. very difficult for black women who are affected by this. you know, in the state of miss miss, 118 are likely to die by carrying the pregnancy, and the court to say take it to the poles when we in fact, you live in a state where historically black women m to guess how many bubbles, how many jelly beans. a jar and a state too happy for enslavery, jim crow. it's hard to see it other than a form of cruelty. the perniciousness is the fact that states can go rogue and we're already seen that. texas has had a law that is inconsistent with roe vs wade. roe vs wade is still the law of the land. oklahoma just passed a law birth begins at conception, and abortion acting consistent with roe vs wade. this is alarming, what comes next, and the next wave not jim crow, but the intersection of jim and jane crow, these laws in the era. >> i think we're over our time and we need to wrap it up. i want to thank personally all of my fellow panelists, professor vvictoria, professor murray. >> that's okay. >> my friend. >> michelle goodwin, i'm blanking. >> it happens to the best of us. thank you so much you've come from near and far to be with us and you've enlightened us on the dobbs opinion and history and thank you very much for being in the audience and for many online. >> thank you. [applause]. 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