Transcripts For CSPAN Discussion On History Of Reproductive Rights 20240707

these other television providers giving you a front-row seat to democracy. law professors talk about the history of reproductive rights cases and in the recent supreme court draft opinion indicating that the majority of justices would overturn roe v. wade. posted by the georgetown university law center, this is about two hours. >> hi, everyone. we are at georgetown and today, we will be talking about lost history of reproductive rights with an extraordinarily distinguished panel. i name is victoria nurse. i am a professor of law and run an institute on congress. you might ask what congress has to do with this. we will learn about the relationship between courts and legislation today. we have some distinguished guests including one of georgetown faculty loss own brett snyder. -- georgetown faculty's own brett snyder. he is author of a book on felix frank ritter who will play a role in the history of reproductive rights. over to brett to introduce the panel. brett: hi. thanks, vick. it's great to be here. what an amazing dream team of panelists we have both in person and online. as victoria said, she is the ralph whitworth professor of law. her 2008 book which everybody should go online and buy, recovered: the lost history of skinner villa oklahoma. today has to be the 80th anniversary of the decision that has a lot of relevance up to the current debates on reproductive rights. i would also highly recommend victoria's 2009 "a tale of two lockers." it has really helped me both as a young faculty member and over time reading her book and reading her article to think about these issues. after victoria, john barrett is the professor of law at st. john's university. he is a world renowned expert on justice robert h jackson. he is director of the robert h jackson center which is the cosponsor of this event. he is an author of forthcoming books on nuremberg and a biography of justice jackson. and he is the 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 who is the chancellor's professor at university of california irvine and founding director of the center for biotechnology and global health policy. she is the author of the 2020 book policing the womb, the criminalization of motherhood. and she has hosted a podcast on the issues. last and not least is melissa murray, the ephedra cayenne and grace notes professor of law at new york university. she is the faculty director of the leadership network and cohost of the world-famous podcast "strict scrutiny." melissa is an expert on family law and reproductive rights, the author of the 2022 william and mary love you article abortion sterilization in the universe of reproductive rights. we could not have a better group of scholars today talking about these issues and about how it relates to the current debates on reproductive rights. >> thank you for that introduction. i think we will each speak for 15 minutes so we will have time for questions hopefully from the virtual audience as well as the real audience, because we understand there are a lot of virtual attendees. going to start off by situating this in the earlier 20th century. in an op-ed, and book saturday night live in terms of its critique of the dobbs opinion which was leaked. 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 together is because we are going to talk about something that is lost in that which is the greatest generation. the 20th century. the greatest generation struggles are things that i believe are important to understanding our constitution and how it has developed and what we can learn from constitutional law in the 20th century. it will have i believe an important impact on how you address questions involving abortion and we will hear from two leading scholars professors murray and goodwin on how this will impact more modern cases. this case cannot be understood in terms of its difficulty and why it seemed impossible it would get to the courts, there was no right to counsel for these lawyers, they get a volunteer because law was against them. why was the law against them? because the supreme court had ruled in an infamous case that sterilization was perfectly appropriate. in oklahoma in skinner, the governor and the legislature had said we are going to sterilize the prisoners inside the prison. the law was deeply against them. let me take a few minutes to talk about buck. it is far more well-known case. then i will move down -- move onto skinner and a conclusion about the differences between male and female reproductive rights in 1942. we have to go back in time to the heyday of eugenics in the 1920's. there were many ideas about what to do with the so-called unfit. that category was amorphous and it could include what we would think of as stereotypes today in terms of race, disability, ethnicity. the term race could include women, the greatest criminals were considered irish. different ideas of race of the time were percolating. eugenicists favored immigration reform. the majority of states passed sterilization laws on the theory that this would rid folks of the unfit. at times there were questions about the constitutionality and many state courts held that this was cruel and unusual punishment. there was something constitutionally wrong with them. there was a lot of legal uncertainty and finally in a made-up case that was intended for the court, a virginia dr. and folks decided to bring carrie buck's case to bring -- to say that it was constitutional. justice holmes ruled that sterilization was perfectly appropriate and he coined some of the most infamous words ever, three generations of imbeciles are enough he wrote approving sterilization for carrie buck. this was the first reproductive rights decision women in the 20th century and it basically said you are at the mercy of the state. if it helps welfare, we can determine that. what is sadder about the case is now we know that her child was not unfit or feebleminded which was the term of the day. we also know that she was raped by an uncle and that's why she was sent off of the asylum. is a deeply offensive case. it has never been overruled. by the time we get to my prisoners case, you conceived the law is against them. yes you can see the law is against them. the law says states may determine your procreative rights. we also have to think about what happens in the 1930's. sterilization was a hobby for some people. it was promoted by an award-winning geneticist who thought it was a good idea and by immigration reformers and great institutions like the carnegie institute and many other fine groups. because it was supposed rid society of bad genetics. they seemed at the time fully appropriate after all, they had been experiment in with genetics and fruit in california for decades at the time. what's good for fruit a bee good for america. -- maybe is good for american. negative eugenics, let's sterilize individuals because we will save money. this is what happened in oklahoma. there was a push during drought and dust where they were bombing the clouds and everyone was suffering greatly to try to rid the asylums of those who are considered unfit. that term was quite amorphous. carrie buck was unfit because 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 lies in reproductive rights lies in our refusal to consider sterilization as a part of the universe of reproductive rights as much as abortion and contraception. at this point, it is worth looking beyond the 1940's. all of the speakers so far have talked about the waning days of the eugenics movement and the rise of nazi-ism and the taint of nazi-ism and how it very much affected the legitimacy of eugenics in the united states. what we have not talked about is that even though that was the case and the fervor for eugenics did die out in the 1940's, eugenics sterilization was repackaged under other guises, especially in the 1960's on the heels of the civil rights movement in the welfare rights movement. it expanded the scope of public assistance to include more 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 challenge to north carolina sterilization program in the 1970's by ruth bader ginsburg and the aclu women's rights project. cox was concerned with the claims of cox who had been subject to sterilization because she gave birth to a child outside of marriage and her mother and siblings were in receipt of public assistance. her family was told that if she did not submit to sterilization, they would lose their access to public assistance, something that her mother could not afford to do. as ginsburg argued, north carolina's sterilization program had utterly violated cox's constitutional rights, condemning her to infertility and dooming her chances for marriage and quote unquote a normal family life. ultimately however, the case did not result in the invalidation of state sterilization programs. the case was deemed moot because north carolina voluntarily phased out its program. but other contemporary challenges to sterilization, the magical 10, the young women and sisters in mississippi and alabama, all of this made clear the centrality of sterilization as a technology of reproductive control well into the 1970's. interestingly, more recently, in the 19 -- in 2020, september of 2020, we were faced with a massive scandal in ice detention when it was argued that women in detention who had been detained by the government were being subjected to coercive sterilization without informed consent and often without the benefit of a translator. that story occupied our attention for all of one week and then perhaps ironically, the newest cycle shifted. justice ruth bader ginsburg passed away on september 19 of 2020 and her passing utterly drowned out the fate of those women in detention and the prospect of a contemporary conversation about real life coercive sterilization within our borders. so today, as we think about all of these different threats in an attempt to bring them together, i hope that we will think about this nascent effort to associate abortion and contraception with eugenic racism. think about how it not only affects this contemporary discussion of the future of roe v. wade, but how it also overlooks and includes the real life state-sponsored reproductive abuses we continue to live within our very country and that continue to plague certain communities in our country in ways that are clearly unequal and utterly unjust, so i will stop there. chair goodwin: thank you for that powerful presentation. professor goodwin? professor goodwin: i would look to think my colleagues on the panel. thank you for organizing us and bringing us together. so, as i wrap up our panels discussion, transitioning from professor murray provides a great pathway for me. i think about 1851 and sojourner truth's speech, anti-woman. for much of history, what is been unpacked about that is that she spoke about chivalry and what is curiously missed is that beginning of the speech, as she says, i bore 13 children and sought nearly each one snatched from my arms and no one heard my cry but god. this is a time preceding the civil war the reason i take a page from the history that goes back perhaps a chapter before the conversation that we have grounded today in eugenics is to really help to set the stage about what is staring us in the face, the potential that roe v. wade may be fully dismantled by this united states supreme court. as professor murray mentioned, over the last few weeks, we have all been stunned a bit by a leaked draft opinion. the draft itself is highly unusual. it is a story, but not the story. and the reason why the timing of that speech is important to this discussion is that what is overlooked significantly but there is some nod to it in roe v. wade itself, is the fact that abortion had not been criminalized historically in the united states. the pilgrims performed abortions, indigenous people perform abortions. abortion becomes a political wedge issue and a tool in the time 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. deposit think about it, that is not a curious thing. there are no guys with five coats and stethoscopes roaming around a millennia ago the plains of africa, asia or anywhere else. no, gynecology becomes a field that develops in the 1800s. if you read the works of horatio store and joseph billy, you gnosis there that you notice there were schools of anatomy. we notice in their pamphlets, which they called books, there were ways in which they felt very intimidated by and threatened by the guise of anatomy. they claimed that they were doing nothing special. in fact, they were doing women's work. doing nothing really elevated because half of the people in the country that were doing that work where in fact black women. it is not that that is a story alone, it is that that story must be understood as part of a storm of what is happening. the rise of gynecology because by this point, there are the tools of gynecology that were being perfected. notably, being perfected in ways that i as a bioethicist and others find alarming, deeply alarming, because enslaved black women were used as guinea pigs, euphemistic any pigs. in the development of gynecology. famously, marion sims who had a statue in central park, wrote in his biography about how he would arouse in the middle of the night. the enslaved black women that he kept in the back of his house, because he would have an epiphany and he would cut into their bodies and do all sorts of things like this. he writes about this in his autobiography. it is worth taking a pause here to think about who gets to tell the story. who gets to sit on the stage. i was alarmed when i read that autobiography. by that time, there were already statues of marion sims in central park and all across the country. he was considered the five there, guiding father of gynecology. he was praised by men of medicine, yet, if you read his words, not the words of black women describing the horror and terrorism that he inflicted on black women's bodies, but his own words that describe it and how he believed that black women did not feel pain. so as he would cut into their bodies, denied them any kind of relief. it is this perfect storm of the building of gynecology, this is a perfect storm of the coming of the civil war. but it leads to people like horatio, joseph delete and others to learn about the urgency of white women north, east, south and west. abortion becomes an expedient political tool for the men of medicine to be able to shut women out. and you see it quite directly in their writings. they lean into medical organizations and legislation, legislators who are quite keen on preserving slavery, who are quite concerned about what kind of terminology that we are hearing today, replacement theory, this notion that somehow if in fact the civil war comes, if black people are released from the bowels of slavery, they will 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 moral things that they are doing, but ultimately, it is a mode of capitalism. it is a mode of monopoly. it is a way to shut women out and they are successful. this campaign, which again is part of a perfect storm, is effective. we go from the 1800s, where women are in the control of about 100% of men -- reductive health care, to bite in the time of the early 20 its entry, down to 1%. think that is worth noting. we think about racial hierarchy behind that. sojourner truth, the coming of the civil war, racial hierarchy has long been the euphemistic elephant in the room in the american dividing line to marking power, freedom and self-governance. i want to take a moment to basically cross off a few issues here. i want to talk about racist proxy for clinical power and how we see that in this moment, building off of what professor murray has said. time this historical threat and move us to the present and what i would call it the new jane crowe what comes next. to properly undertake the examination of what we could call it eugenics as a form of racial past in the united states, really requires engaging behind -- beyond law, reaching to the fields and tools of sociology, anthropology, and history, to unpack not only laws, racial trap, undisguised by legislation such as the future slave act or a cases, but also the lasting and even haunting social, cultural and rhetorical norms in our society that would beat us to believe, or some people to believe that what was articulated in justice thomas's concurrent opinion and in this robust footnote would actually be accurate. the robust footnote, 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. i think it is really important what michael panelists have talked about is the way in which law has rooted so much of this. if we take chapters back and inking about eugenics as part of creating racial tasks, the die for that was already set. if you thing about it across a few areas, one, matrilineal tea in the united states, some of the first laws in the colonies and in the united states where those that were designed and that designated that all children born of enslaved women would buy law inherit the status of their mothers. this proved important denying a multiracial offspring of white plantation owners independence and freedom. as defined, matrilineal tea served multiple dust multiple purchases. it show that white men from legal and financial obligations to black offspring. such laws meant black children of white fathers could never establish paternity, freedom, citizenship, and the inheritance of rights. such laws exported black women's sexual vulnerability to the predations of white men. slavery perversely incentivized white male slaveholders sexual assaults on their enslaved property, that enslaved property being black women. these black women notably lacked rights and could not lay claim even to their very own offspring. nor spare them from enslavement. black women and their offspring were all considered the property of the persons who owned them. it is worth noting that this was not just an enterprise of white men owning black people, white women did too. to further see the tools of law in the chapters before eugenics would mean moving to hypo dissent. again, laws crafted in the united states before eugenics, that mandated that anyone with any african biological heritage would always legally be designated as black. and therefore, legally by law, inferior. and then we have the third guard rail in the kind of protection of laws, protection of whiteness before even get to eugenics. and that happens to be anti-miscegenation, the idea that people should be barred from people outside of their own race and specifically this was about creating guardrails around whiteness. and now, we get to eugenics. eugenics is an important conversation to be had and i will get to the present, believe me, i will. but it is worth noting that eugenics was importantly and as mentioned by professor nourse, something that was not a kind of black white enterprise. there were 36 different categories of whiteness at the turn of the 20th century. eugenics significantly was about policing whiteness and the boundaries within whiteness. and also outside of it too. and it is worth noting that there are 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 wait to rachel cap -- racial casts of the united states. courts reserved whiteness which conferred privileges and rights only for people who appeared white and here those of you that know the cases i'm about to talk about, was a la and then. the case in 1922, the court said the provision is not that need gross and indians shall be excluded, but is in effect that only free white persons shall be included in intention was to confer the privilege of citizenship upon that class of persons whom the fathers knew as white and to deny it to all others, so classified. these are cases that are back to back where people were suing to become white. they did not want to become white, but being black was so awful. jim close laws jim crow laws relegated to second-class citizenship black people. so we see in the early part of the century, asian folks suing and cases coming to the supreme court challenging this, seeking to become citizens and by means of that, challenging the notion of what is white. we see in the case following that and here i will just quote from the united states case and speed us up to the present, justice sutherland wrote saying it may be true that the blonde scandinavian and the brown hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakably and profound differences between them today. and it is not impossible if that common ancestor could be materialized in the flesh, we should discover that he himself sufficiently differentiated from both of his descendants to preclude his racial classification. what did all that gobbledygook mean? essentially the court set effectively we know what whiteness is by the way we look at it. right? and these are ways of policing these boundaries of whiteness. so what does that mean today? what does that mean for this footnote 41? what does this mean in terms of justice thomases concurrence? roe v. wade may soon be dismantled itself and what we see in justice alito's leaked draft opinion is a turn to history, but it is a selective turn to history. it is curious, there are multiple omissions and cherry picking through history itself. there is a turn to looking at the works of sermon matthew hill, someone who wrote about essentially women having no independence themselves. being used as the tool of law to justify marital rape and also to justify the 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. courts state supreme court's articulating for daughters to be able to sue their husbands would -- to their fathers would essentially mean it family harmony. this is the history that justice alito cites to in the opinion that in the draft opinion that may serve as the basis for dismantling roe v. wade. now what is to come from all of this? what are the real-world effects? i want to close on this and really, we could spend a whole weekend digging so deeply across all of this, but the real-world consequences take me back to sojourner truth and talking about the 13 children being snatched from her arms and no one hearing her cry but god. if you look, justice breyer sites a study that has been picked up by the cdc and data that is so well-known, which is that a person is 14 times more likely to die by carrying a pregnancy to term than by having an abortion. this is data that is not controversial, in that it is controversial in terms of substance, but not the evidence, the robust evidence that we have. if we are to take any kind of nod and pause on what sojourner truth said so long ago, we might think about what this means in contemporary terms in mississippi, where a black woman is 118 times more likely to die by carrying a pregnancy to term than by having an abortion. nationally, black women are three to half times more likely than their white counterparts to die by carrying a pregnancy to term. but let's be clear, this is no panacea for anybody in the united states, given that the united states ranks 55th in the world in terms of maternal mortality. that is the united states is not in the company of other industrialized nations, air quotes around that, but it is not in the company of sweden, england, germany or france. no, the united states sits in coveney with saudi arabia and countries that tolerate a public lashing of women, that tolerate the stoning of women. that is where the u.s. is. now, what comes forward westmark justice alito has claimed that there are guardrails potentially that roe v. wade could be dismantled, the but there are guardrails that would protect contraceptive access. that would protect interracial or same-sex marriage. that is hard to countenance when you see it coming from the very states that are proposing most progressive antiabortion laws already legislators making claims that they know will in fact seek to make sure that contraceptive access is not available in their states, such as iud's. this wording in the leaked draft opinion may mean very little, given the signal that it sends, perhaps two clerks that may refuse to issue a marriage license to a same-sex couple or a couple that happens to be interracial. there is more that i could speak to, but i actually want to pause, so that we can give time to the discussion that we could 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 in fact, with this leaked draft opinion is that there is a level of cruelty. some might say that cruelty is the point. nowhere in the leaked draft opinion is maternal mortality mentioned except in reference to roe v. wade and just within one paragraph of that. a feature of the antiabortion legislation today, something that we would not have seen even a few years ago, are no exceptions for rape or incensed, none of that is taken up in this leaked draft opinion. what in the world could we call this, what we call it in any other context, given what just is at stake in our country? thank you. >> thank you, professor goodman. i think now we're going to take some questions and try to open up the floor. first, to the people who are here, in the audience, i have a couple of questions online. then i am going to read them as well. is there anyone in the audience wants to ask a question before i start in on the online questions? let's wait for the microphone real quick. thank you. >> thank you for being here. i am curious, there has been a lot of originalist scholars who critique the draft. a lot of scholars. especially because abortion was legal in all of the colonies at the time of the founding, the 27 states cited for the 14th amendment is actually not accurate. it was less than a majority, so i am just curious do you think that there is room for an alliance, like sort of among non-originalists or originalist scholars and people who think this way on this topic? it seems to me there should be. >> i will just begin and let anyone else, you know, since i focus on methodology, i would be interested in hearing what the other panelists have to say. you know, i don't know if there is an alliance, you know. i think we would be happy, you know, to have, you know, the originalists out there talking about why they are releasing these opinions. it is not clear. this is why the alito opinion in my view will not read that way when it is issued. i also believe and this is just my guess based on last term, i have been studying every opinion in the full universe of opinions and an article just came up at harvard. it looks very much to me like a case called fulton which involves religious rights. a very aggressive concurrence. this looks like a concurrence to me. some familiar opinion may look nothing like this, even though they are going to a cold. i expect there are five votes to a -- to uphold and perhaps overrule roe v. wade and then it will become mississippi law. now, could there be an alliance? yeah, historically, people have made a simple textual's argument that in fact, madison would be rolling over in his grave because then ninth amendment was in there precisely for the reason that if you enumerate rights, some people are going to say they are not written down. and if we knew this in 1787, surely we can know it now. the history of the 20th century is the development of that idea, which is why i think however imperfect, this was why i wanted to try to give you a sense of the 20th century. as recognizing this, this comes out of world war ii in part because there was recognition of the notion of human rights, which is what douglas invokes here. it is a worldwide development. so i understand that my colleagues who are originalists, premier originalists, do not necessarily think roe v. wade should be overruled. and that is their position. you know, you can route it in the text, you can brew it in other parts of the text, you can read it in privileges and immunities, but at the end of the day, when i wrote my piece in slate saying, criticizing the leaked opinion for going back to the 13th century, 1868, i would not be sitting here if it was 1868. amy coney barrett would not be on the court because we could not practice law, we were not covered by the 14th amendment. it is only because of the judicial recognition of that during the 20th century that i sit here today. now, it is possible to have a different originalist argument, but that is not the court, so that would be my answer to my originalist colleagues. those arguments, such as privileges of immunities clause, perhaps they would bring a better world, right? but that was not used. it was not in any of these cases, in the early cases. and so, however brilliant that may be as a solution to the originalist problems about women, this court has not invoked it. so my critique is that the court in terms of their practice, my view is that it is selective. the textual -- i think they have misread the second amendment for example. so over to others. professor goodwin: i would like to build on that, the selectivity that we see throughout history of jurisprudence. one sees it quite deeply in this opinion. i mentioned earlier that it does matter who gets to read the book, who gets to sit on the stage. so imagine if we think about the 13th amendment in ways other than its bygone, it just freed slaves. this idea of a 14 commitment. what might that mean in terms of originalism and textualism. what are 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 slavery. we understand the sexual subordination taking place during that time, it was written about by abolitionist. it was spoken about with the 13th amendment being debated. and if you think about the text of the 13th amendment, slavery nor involuntary slavery -- servitude shall exist within the united states, this involuntary servitude is not one that is just simply being in the fields and picking cotton. it is an involuntary servitude that black women had been subjected to as reproductive chattel in the united states. 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. it's involuntary servitude. imagine if we looked to the text of the 14th amendment and how the 14th amendment speaks very specifically and in its very first sentence, all persons born or naturalized in the united states are citizens of the united states. not the unborn, not fetuses, not embryos, not religion. what happens to be mentioned in the constitution are those who are born. and so, this selectivity again, you know, one sees in the leaked draft opinion, but i would also wish for us to imagine what happens when women are able to be the interpreters of our most cherished documents. >> to follow-up on that as well, i think michelle and victoria are exactly right. we talk about -- i think a number of us have actually without even intending to, conceded the idea of a right to an abortion as enumerated and a textual for some reason. and i think that that is not the case. michelle is exactly right. when they were drafting the reconstruction amendments, they were doing so with slavery top of mind and they were very clearly explicitly focused on repudiating not only slavery, but all of the additional enslavement that characterized the lives of the enslaved. so my colleague, penny cooper davis has written a marvelous book, neglected stories, the constitution of the values which goes into this. it 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 sold away from you. the fact that there was no bodily autonomy and you could be conscripted into sexual service or the financial betterment of your master. the reconstruction amendments were specifically aimed at repudiating all of those, and so when we concede that the right to abortion is not explicit in the constitution's text, i think we give up too much. there is an invocation in that grant of liberty in the due process clause and the router fires and drafters of the 14th amendment understood what they were doing. they were consciously responding to the conditions on the ground. the conditions of enslavement. >> absolutely. quick follow-up? >> methodologically, it was a mistake to remove the case from the original? [indiscernible] historical evidence could have been better received. >> so the question was -- the question was do you think it was a mistake not to brief the case from an original perspective because a lot of the historical arguments were neglected, at least as we have seen from alito's draft opinion? >> i will take a quick level at your six, i think there are three self-proclaimed originalists, but three others in that conservative six mostly disavow it. so for tactical litigation reasons, i am not sure originalist arguments would have been itching out a workable majority. and you know, it is sort of on them, if you will, to join on whatever ground they want. we know at least from this february leaked, that five -- are where that draft indicates where they are. unlike the statutory case for instance where chief justice roberts and justice gorsuch with their textualism i guess, gorsuch we know, roberts we have to vote. joint liberals to read it title vii inexpensive way. there is no sign of this originalism on the court. the academy and scholarship, that is a different question and you know, the ferment will continue. but that is not relevant to deciding the case. >> let me just mention something about that and why i believe he is correct in the sense that i have been studying the court in congress six republican appointees originalist intentional us because they call themselves that, with the truth is a litigation person, someone was worked as a litigator is that there is a differences between their ability to focus on the original meaning and their consistency with that, as opposed to president. ok? that is why they built up all these tiered -- theories about presidents because they know contextualism, the real assault is unprecedented. because of the text says it in your president does not, that is a problem, whether it is the meaning of the word legislature in the elections clause, right? that is to get rid of prior precedents. so that is why folks who are worried about president like the chief who is a credential conservative, talks about history, appeals to it in his opinions, but is not as a litigator a reliable vote in that direction they are more pragmatists in 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 then even justice scalia in my opinion. >> could i jump in one moment? i was stuck -- struck by what professor murray said. and i think the left needs a strategy. i think professor murray is absolutely correct that we should not concede that abortion is not a right. i think we need a textual list strategy. i think justice kagan who we have not mentioned has famously said we are all textual lists now. and i think a 13th amendment argument, building on jones in the incidence of slavery, a case that was authored ostensibly by justice stewart by his law clerk, lawrence, would be one way to go. but i absolutely think and i know jack vulcan and others have been on this, but professor goodwin's emphasis on the citizenship clause could not be more right. that made everyone equal citizens. that is what jacob howard said in his floor speech, introducing the 14th amendment. this is the heart of the 14th amendment and we have lost sight of what the heart of that is. there is no way that 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 textual provisions that it is ignoring. >> it was 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 couple weeks ago, if this were meant that it only would apply to black men, then we would have seen the black women stuck in the same position as they had been before and the prevailing laws continuing. but that is not what happened, so we can actually see the original meaning taking place afterwards and be able to see that, clearly the 13th and 14th amendments were not intended only for black men. in text, practice or enforcement and in its legal history demonstrates congress did not intend that black women would remain in the confines of human slavery, but time and again the judiciary has overlooked this text and its application to all women, especially black women on matters such as this. >> go ahead. >> no, i just wanted to throw in 1791. i agree with all of this, but at the start, the fifth amendment, due process clause, which was only for white men then, was a textual font for protecting their bodies and other fundamental rights. the civil war postwar amendments spread that more widely, so the due process concept come the to them in due process, the 13th amendment, the privileges clause, equal citizenship, that take something that was textually therefore the chosen people at the beginning and constitutionalize is it for all. >> but there is one other point i would like to add. that is within this context about selectivity, i think what we have seen is this determinative kind of jurisprudence coming from particularly the court, being the members of the court could be honorable to this generally, but i think that this particularly with the hostility towards reproductive health rights and justice. one of the ways which you can see justice alito kind of contradict himself is to look at hobby lobby. there is no precedent whatsoever, there is nothing in the constitutionalist order that you can find that grants religious identity to corporation and yet, we see justice alito in hobby lobby in 2014 go there, so i think that when we sort of unpacked this, we can be far more nuanced in fact than just looking at the record. of these justices to be able to see it is not just selective. is outcome determinative kinds of jurisprudence and that is really i think a threat to more broadly not just the context of reproductive health, but really a threat to our democracy and the rule of law. >> before -- i want to hear more from my brilliant co-panelist, but i want to just read a few of the online questions. so that we can add their voices into this discussion and really build on some things that professor goodwin is saying. one of the questions is isn't it true that the antiabortion movement is primarily driven by religious beliefs and isn't it true that alito is focusing on personhood, it is primarily a religious conclusion, not a legal or scientific one? therefore, is there an argument against the alito decision on the grounds that antiabortionists seek to impose their religious views by law on others? i just have a one other related question, is there a watertight traditional doctrine that one must only decide the case in front of them on the facts in front of them. if so, does justice alito go beyond what needs to be decided in this draft of dobbs v jackson. dobbs is on a lot of our listeners and people on lines minds and i just wanted to open this up more to my colleagues. >> i will really quickly say this, that there is the concern right now about xenophobia, nationalism in our country. and on deeper inspection, there is 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 is not even a full-scale christian view. it is an isolated christian view that is antiabortion. certainly inconsistent with other religious ideologies. people in the united states and i think that that is a very good point that is raised by that particular viewer. >> the world would look very, very different if griswold had been decided based on the fact that it was really largely an anti-contraceptive statute promoted by an element of the catholic church. because even catholics are divided on this question. our world would look very different. i just want to say something about textualism before i make -- perhaps professor murray wants to talk about these questions is welcome it i would be interested to hear. i think textual arguments have to be made in epic originalist arguments are there. and i think what this case exposes is the selectivity which professor goodwin and i have tried to point out. it seems simple, text seems simple, but it is not in it hard cases. in the easy cases, of course. december 31 means december 31, i teach this all the time. 35 means 35, but that is not going to answer the hard cases. and one of the particularly unknowing features of the current contextualism as professor goodwin just demonstrated is that it picks and chooses the texts it likes. it forgets the ninth amendment, it forgets the 13th amendment, forgets some parts of the 18th amendment. so, to someone who has spent a lot of years studying it, i find it disturbing in the sense of its opportunism. and that is why you see originalists coming to save victoria, you are right in terms of this is not really an originalist decision, this is living originalism. because there is text you could support, there is original history includes a word. but that goes to a deeper problem is why are we deciding cases for 150 years we never decided cases this way. this is -- 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 things for many women given the statistics that professor goodwin has noted, is the effects of this ruling, given the reliance that people have placed upon the right. so professor murray, i would be interesting in hearing what you have to say? professor murray: that is incredibly astute. i don't know that i would use the term selective textualism or selective originalism more so than i think it is opportunistic. i think that is exactly right and let me try to thread these two things together and go back to the question about religion. professor goodwin is exactly right, there are plenty of traditions in the united states that do not have the same as abortion. you can think about -- i was just out of thing for the national constitution center and it was a panel on abortion and guns, where textualism and originalism had come together with widely different results. and somebody noted that according to the court's interpretation of the second amendment there was a right to self-defense that warranted very liberal access to a right to bear arms. and i asked the question, like what if we understood access to abortion under similar terms as self-defense? because in fact, that is how the tradition of judaism things about it. if the fetus poses a threat to the woman's health or even her life, then she is warranted in dealing with it by terminating a pregnancy. it is a mode of self-defense. you prioritize the mother. i had the unborn child and -- ahead of the unborn child. and i hope that we would see immediately after this decision when jobs -- dobbs challenges gruden in religious freedom because one of the things we've seen in the last years is that this is important, that very must prioritizes to the detriment of the other part of the first amendment the establishment clause. and so, i think it would really kind of bring home the conflict if this court had to reconcile its antipathy for abortion rights with its exuberance for free exercise, because i think there is a complete clash there and i would be interesting to see how they resolved it. indeed, if they resolved it by prioritizing the antipathy over abortion rights i think we would understand that it is understanding of textbased rights is perhaps similarly opportunistic. >> i want to build on that self defense concept, just by flagging an incredibly powerful piece in the washington post this morning by kate manning, which is about the physical consequences of pregnancy. in all of the lasting health impacts. 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 is important to pose. if i understood the question correctly, i do not think speculating about the religious motivations of the justices is a productive enterprise. everyone comes from somewhere, it is a malala shove their influences, learning, beliefs and some of that may be religious or new religious. and i just do not think there is an establishment clause doctrine against someone as a jurist proceeding with something in the mix that is religious that makes it an illegitimate decision. so, i would push that to the side. i do not think that itself will to the conversation. i think it is helpful when the justices show their work. you know, and are candid about text or original public meaning or history more broadly understood or you name it, as part of the path that leads them to the decision. i mean it to go back to where i started, that is why i like jackson in his little compact concurrence really 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 wanted to read one other historical question, because we have some experts on this panel. the question is can you discuss the fact that abortion treatments are widely advertised and accepted even from the sears roebuck catalog until daughters took over ob/gyn? this was in the mid 20th century, so the comment that abortion is a quote unquote new issue is civilly wrong. even the catholic church permitted abortion until 1870 and pope pius the ninth. >> benjamin franklin wrote about how to perform an abortion, right? so again, call it selective opportunistic, both in terms of what we have seen and in terms of efforts to dismantle reproductive health rights. and also note that within the context of so much of this, it really is important who gets to name what. right? because eugenics gets this framed health and risks associated with pregnancy get this framed. an average person were to look at what happens and where the narrative goes, you would think that having a pregnancy was the safest option that a person could possibly ever have that abortions were alarmingly dangerous. and so it is hard for people to sit with that abortions are actually one of the safest procedures that you could possibly have. as justice breyer writes, is more dangerous to have a colonoscopy that it is to have an abortion. they are incredibly safe procedures, but the narratives that harmonize around this are completely inconsistent with that. the world health organization said in abortion is as safe as a penicillin shot, so terrific that this point has been made by the viewer here, but a couple quick points and want make because we also misremember roe v. wade. it is a 7-2 opinion, five of those seven justices are republican appointed. justice blackmun who authors the opinion is put on the court by richard nixon. no one would dare say richard nixon was far left. radical leftist. not at all, prescott bush, the father of george h ou bush was the treasurer of and parenthood 1966, dr. king receives from planned parenthood it's humanitarian of the year award and he writes a robust affirming speech about his pride in 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 do not want. this is 1966. >> to the extent that this new narrative about eugenics and reproductive rights is really intended i think to opportunistically exploit the black community. yeah, you know, i think justice thomas knows exact what he is doing. no one but him on the court can make this argument as forcefully as he does and is effectively, but what is missing from his entire discussion are actual voices from people in the black community. it is true that this argument about racial genocide has been percolating in the black committee for some time. it has been associated with sort of the most masculine aspects of the black community. black panthers talked about this. the nation of islam talked about the fact that governments subsidization of family planning been part of a genocidal plot. interestingly, black women inside the black power movement and outside of it were skeptical of this narrative and florence kennedy who served as a bridge between the women's liberation movement in the black power movement noted for her black brothers that you know, we want to be part of this movement. we want to be part of the black power movement. if women are going to be part of it, maybe we need to travel light. maybe we do not need to be the ones at home raising your children. if you are really concerned about the question of genocide, she and other black feminists said, you should not be concerned about access to abortion and contraception, you should be concerned about what is happening in mississippi, where black women are literally being sterilized because they are dependent on public goods. >> absolutely. and to add to that, melissa, i am so glad you mentioned that, on the night in which dr. king was to receive that honor, i sometimes say he was off being arrested. his wife prescott king identified herself as a black feminist and deliver the speech and said she could not have been more proud to be there that evening, reading his speech on his behalf. and also understanding just what the arguments were at that time in terms of the importance of black women's autonomy with regard to the reproductive health. >> we have time for one more question. >> anybody from the audience before i turn it over? oh, one more audience question. >> i'm really glad professor goodwin brought it up, because it is not the most important issue probably, but i think it is worth talking more about. the starry decisive concerns that alito's opinion brings out are quite demonstrable. and so if that doesn't end up being the majority opinion, i am just wondering if anybody on the panel wants to opine upon what it looks like going forward, if this opinion is in fact the majority? >> well, as i said, i have been saying for years that the whole point of textualism and originalism, since it is a new method, is to reverse. to be against president's the whole point. one of the things i'm trying to document is that they are doing this all over the place. it is not just in high-profile cases, but this will demonstrate it to the american public in my view. i think it is going to be quite a below. if you talk to young women, my daughter, mom, how could they do that? so, it really is an important moment for the method. it is important for starry decisive. one of the great things about that if you care about the difference between law and politics and even my student, i tried to defend this because i have worked in the white house and in the senate. and i believe in law and it is important that it loses its value as law when it becomes opportunistic, there is no consistency in the best way to maintain that is consistency over generations. cases like a vessel and the opinions of people who had totally different norms from 1982, they are a signal of wisdom. i remember my first article on the federalist papers. some of the wisdom can be false, we can learn from it, but you look at it first. right? and it is a way to find the whole country. despite eliminating the 20th century is a huge mistake. it's a huge mistake. whatever you think, there is a lot more about the 20 at sentry that was learned in constitutional law. some of it errors. some of that wisdom that everyone embraces. so i think it will -- they have a standard according to justice barrett. we do our standard. yeah, i just -- i think that the standard is easily manipulable. and i am not convinced that it too will not be used opportunistically and that this is why this case has taken on not only an importance about abortion, but about law itself. >> i agree with that and i just want to flag justice thomas's recent comment in his conversation with john. justice thomas said it means you got no argument. and in fact, it begins by making it very clear. we stand here, which is on the path of history. i think cardozo 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 is commendably rational. to begin by noting where one stands, i think that is the virtue in argument. >> you know, let's be clear and i completely agree with michael 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 recorded by polly murray in her book race lies, which justice thurgood marshall called the bible of the civil rights movement, thousands of just the most ridiculous laws that kept black people in second-class, third class, or class citizenship in the united needs. ridiculous. you cannot play checkers in the park, all of that. dismantling that, very important. but to another aspect of your question, i am concerned about what this means when what may come from the majority of the court saying just take this to the states and the dog was that that means when it has been this very supreme court that has dismantled key provisions of the voting rights act. which is 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. in mississippi, 118 times more likely to die by carrying a pregnancy to term then not. for the court to say just take it to the polls, when we in fact -- you live in a state where historically, black women had to guess how many bubbles a bar of soap to vote. how many jellybeans in a jar to take it back there. a state that was all too happy in its addiction to slavery, jim crow, and now voter disenfranchisement. it is hard to see that in any light other than what it represents, a level of cruelty. and so the pernicious aspect of what i think is to come is the fact that states can go rogue. and we have already seen that. texas has a law -- texas is a law that is inconsistent with roe v. wade. roe v. wade is still the law of the land. oklahoma has passed a law saying birth begins at conception and that is consistent in banning abortion, that is inconsistent with roe v. wade. this is what is alarming, what comes next, this kind of nextwave of not what is jim crow, but this intersection of jim and jean crow, these kinds of laws in this new era. >> i think we are over our time here and we need to wrap it up. i wanted to thank personally all of my fellow panelists, professor victoria, professor john barrett, professor melissa murray. my gosh. >> that's ok, my friend. i learned so much. and a sicko today is the second year -- it marks the anniversary of when union army troops went to galveston, texas, proclaiming freedom for enslaved people in texas. this flag is a symbol of the holiday and was created by an activist, founder of the national juneteenth shell abrasion. -- juneteenth celebration foundation. the flag is is red, white and blue from the american flag with a star featured in the center. for more on the history of juneteenth, visit our website. announcer: tomorrow, justice sotomayor takes part in a discussion on what it is like to be on the supreme court she touches on the importance of engaging with others who may have a difference of opinion. watch tomorrow starting at 9:30 p.m. you can watch on our free mobile video app c-spannow, or any time at c-span.org. announcer: russia's blockade of ukraine has cut grain deliveries. monday, a hudson institute discussion on the effects of russia's were on food security.

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