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This week marks the 47th anniversary of Roe v. Wade, the landmark U.S. Supreme Court decision that affirmed abortion as a constitutional right and attempted to set limits on the power of the state to regulate pregnancies and their outcomes.
The anniversary comes as reproductive rights and autonomy are under relentless attack by conservatives across the United States. With one abortion rights case to be argued before the Supreme Court this spring, and a handful of others teed up for the Court to consider in the coming years, this could very well be one of the last Roe anniversaries we celebrate.
Despite Roe enduring for nearly a half-century, it’s functioned as more of a promise of rights for far too many people. Reproductive autonomy remains aspirational for so many, including people of color, LGTBQ people, people with disabilities, and others in this country. Rewire.News discussed this phenomenon with University of California, Irvine School of Law Professor Michele Goodwin in connection with her forthcoming book, Policing the Womb: Invisible Women and the Criminalization of Motherhood, which will be released by Cambridge University Press in March.
The conversation has been lightly edited.
Michele Goodwin: So let me tell you that originally when I began thinking about the content of what became of this book, that was 20 years ago.
MG: And I thought someone else would write this book. There were things that I was seeing that I was deeply concerned about. I was writing about assisted reproductive technologies and these cases involving the heartbreak, that better-to-do, better-off white couples would experience. They were using aggressive assisted reproductive technologies, which involved drugs. Drugs that are not actually approved for these uses, and they were outpacing births than we had ever seen before. Quadruplets, quintuplets, sextuplets, and they would die.
Some would survive, but they die. Multiple disabilities. And the response was “God blesses you.” The response was if it was successful, “God did this,” not paying any attention to medical technologies. And when there were failures, people would set up websites, give free things to these couples, with an outpouring sympathy. And I began to see these poor women of color, especially Black women, especially in parts of the South, but not exclusively, who admitted to their medical providers that they struggled with drugs and who were being arrested and prosecuted, sometimes being arrested right after delivery. Sometimes before delivery, sometimes giving birth in jail, in prison toilets and on concrete floors because they disclosed to their medical provider seeking prenatal care while seeking prenatal care that they had a medical problem.
And I thought, look at these two different worlds.
So anyway, that began the journey. And along the way there were so many different things that I saw where I had to write the book, and it’s not an academic book. So if people read it, what they’ll see is there are stories, the narratives of women’s lives, who’ve been caught in the grips of the state surveilling their pregnancies to the point where it was just Black women who were the canaries in the coal mine. But now it could be any woman. It can be a white woman in Iowa who comes off of a distressing phone call with her ex-husband, who accidentally slips down the stairs and then finds herself after going to the hospital, surrounded by police and dragged off to jail, while she has two kids being babysat by someone.
That it could happen to a middle-class white woman in Florida who is just wants a vaginal delivery instead of a C-section and figures that she can just wait a couple days until she’s in labor and conveys this to her doctor. And then that her doctor could send her an email saying, “You’re leaving me with no other choice but to have police come to your house and arrest you.” This is the nature of what is beginning to happen. What has been happening in the United States, which is captured in this book, is that nobody is spared.
One of the responses that the abortion rights movement has had as all of these very extreme anti-abortion measures have swept across the states is a conversation around self-managed abortion now and what that looks like. And I’m hoping you can talk about that in terms of the themes in your book because one of the points that I hear in the community is that when it comes to self managed abortion, the risk is more legal than it is medical to patients.
MG: Well, that’s absolutely right. I mean, so I think it’s important to understand the historical contents and context of this as well. And I think it’s so important because so many people miss the point that abortion had been legal in this country. The pilgrims were managing abortions and whatnot. It is a question around the Civil War. Abortion becomes an issue around the time that this nation is figuring out what type of nation will it be? Will it be a nation truly committed to equality across race or will it not? Because at that time, half of the people who performed reproductive health care were Black women. One hundred percent of reproductive health care in the United States had been controlled by women.
And so abortion became a political wedge issue that dealt with race, that dealt with immigration. And so in many ways for those of us who are aware of this is no surprise that it’s coming up right now. In a society that right now is struggling over issues of race, issues of immigration, right? It’s very nativist kinds of concerns, right? That’s part of what this is all about. And so when we’re thinking about self-managed abortions, in part, one has to understand that overwhelmingly the clinics and spaces that had been built to support the reproductive health care of women have been closed, right?
And so then, this question of self-managed care becomes a question for women. A serious question of life and death, a serious question of economics and women are seeking to take these matters into their own hands. They are and there are tremendous legal risks when they do so because there have been prosecutions of women who have sought to do this on their own. Even though self-managed abortions can be very safe.
Your book opens with the case of Marlise Munoz, the pregnant Texas woman whose body was maintained through mechanical support after she was declared brain dead by doctors because she was pregnant, despite Munoz’s family saying she would not have wanted to be used in such a way. And you don’t just describe the case, but you really get into some detail about what the medical interventions by the state did to her physically. I want to talk about the Munoz case a little bit, but tied to this idea of how in this regime what happens is these laws, the anti-abortion restrictions and sentiment, really turn doctors and nurses into agents of the state.
MG: That’s right. That’s absolutely right. They become deputized agents of the state.
So Miranda rights result from the Supreme Court establishing that it is paramount that when a person is being surveilled by the state with the possibility of being charged for a crime, that the state must disclose that any information that is shared could be used in the prosecution of the person. And by making nurses and doctors these deputized agents, but without those obligations, the state gets to do a run around the obligation it has to individuals who are under surveillance. And so now it is that virtually any woman who goes to see her doctor under these kinds of normalized constraint stands the risk of anything that they disclose as being possibly used to establish that they’ve committed some sort of crime, vis-a-vis their bodies and their uterus and the potential embryo or fetus.
And that’s alarming. It’s alarming, and I would argue that that is unconstitutional because to the extent that the state would otherwise use police to do that, but are now using doctors and nurses to do it for the same effect, then they cannot then avoid the disclosures that they must make to these individuals.
I find it really important when I’m with audiences to go back to history because it’s very easy in these times to lose sight of the efforts that were forged over time to secure the civil liberties and civil rights of women to protect their own reproductive health care. And so I tell stories about, in 1966, Dr. King receiving Planned Parenthood’s inaugural Margaret Sanger Award, and it wasn’t just that he received the award. It was the incredible power of his speech, when he talked about the importance of the aligned civil rights movement and women’s rights movement. How he said that it was cruel to bring a child into this world where it was unwanted. How it was cruel that a woman coming from an agrarian economy where it was not unusual to have ten kids could be forced into tenements of one and two bedrooms. He even said in that speech that we were a nation governed by insane men, and so that we needed to focus on what the needs were of women. It was a powerful speech. That’s 1966.
It’s George H.W. Bush who shepherds Title X through Congress, which is signed by Richard Nixon, and both respond in news reports that this is basic common sense. It’s Prescott Bush, who’s the treasurer, George H.W. Bush’s father and was the treasurer of Planned Parenthood. But when I share this with audiences, their mouths fall open. That was the world. What’s happening now is so far removed from what was even considered conservative 50 years ago.
Are you familiar with the Samantha Flute case at all?
MG: Yes. Remind me. She’s the one who unfortunately just took the federal plea deal?
Yes. So we’re typically talking about these situations where state prosecutors are coming in, but what’s so alarming about the Flute case is this is a federal prosecution. And so I appreciated in your introduction that you tied the Munoz case to the inauguration of Donald Trump because that does seem to be a turning point, and we actually have a specific example of that extension. I was so disappointed but not surprised to see the Eighth Circuit opinion. Can you talk a little bit about the Flute [case] because I think it’s a great way to close out this conversation and sort out where we are right now.
MG: Well, where we are now in the Flute case gives us a primer on what is to come … not only because the federal government is now reaching over into the places that had been covered by states, many of them former slave states. I recognize the importance of noting that it’s not just those states, but it is important to note that overwhelmingly these had been places of oppression for women of color, and that now with the federal government stepping in, it really signals a significant shift in the advancement of what had been considered a fringe agenda that has now become normalized within the federal spaces as well, which is daunting. It should be daunting for anybody.
These prosecutions that primarily had been state level, state driven, one could say maybe by zealous prosecutors who were imagining a different kind of future for themselves, or zealous prosecutors allowing their religious identities to bleed into their professional work. Well, that’s now the case that that has spread to a different level. And with Donald Trump as president, it has meant that through agencies, through rules—and so not just legislation coming through Congress, but in other ways a shifting of an agenda that is very harmful to reproductive health, rights, and justice—and this includes now not only elevating even more religious objections and conscience clauses, but expanding those to include moral objections, and these being very specifically tied to issues of reproductive health and rights.
But I also want to make clear too that in all of these spaces, one of the areas in which those who care about these issues have been missing, is missing, the interconnections, right? So we also have to be very mindful of LGBTQ spaces in this, right? Because it’s not just been about women and the shutting down of what have been the access points to being able to live their lives with dignity and integrity, and to be able to control their own reproductive health, but it’s also meant the enormous constraint and rollback of agendas that had finally expanded for people who are gay and lesbian and trans.
And so this kind of really accelerated, aggressive kind of movement during the first Trump administration is deeply alarming. And another step with that, then, has been the stacking of our courts. Donald Trump has been able to appoint more federal judges, second only to George Washington.
So I’m looking ahead through the next five years. What are one or two of the issues that both most concern you and also give you pause with some hope?
MG: That is a great question. One, I’m very concerned about the conflation of church and state, and the eradication of the separation between church and state because what that has allowed is an outsized influence of religious dogma, and not a universal religious dogma. But it has very selective religious dogma to influence how legislatures and courts consider these issues.
I’m concerned at the ground level in terms of the threats that this means in the lives of Americans. I mean, these are truly life and death issues and until they affect individuals much like gun violence, right? So until it creeps into someone’s school and they say, “Well this is not really an issue,” but you see more and more people becoming alarmed, right? Because it’s happening in schools near them.
The same is true here. These are guns waiting to go off, or that are going off, and it’s coming to a theater near you. In fact, I’ve given talks before, some Republican women’s groups and clubs, and one of the most stunning things that I would not have anticipated were almost like church sessions with women raising their hands and telling me about their horror stories with their doctors threatening arrest when they’ve wanted a managed miscarriage. Women crying saying that it’s happened to them, or telling me that their daughters are in jail.
So people may not talk about the incarceration part of this because it may be embarrassing. Or they may feel shameful about it. But these are things that are affecting, at the ground level, many Americans, and I’m deeply alarmed by the fact that it is life and death because whatever sphere that we’re thinking about this, whether it’s women, people attempting to carrying their pregnancies to term, and are woefully awful of helping them to do so and possibly leading to them being in jail during that process.
Or about the high risks of cancers that will result for this next generation because they have STDs, and we know the empirical data is there. You have STDs that are not managed, and controlled, and treated. This leads to cancer. I am deeply concerned about what the next generation is … and all of the data’s right there before us. So then finally with that, and I will get to hope, is that I’m deeply concerned about what this means in terms of a constitutional agenda.
Maybe this is the most important part of it. This is the part that we’ve struggled over in this is maybe the key, right? Which is to say this is a nation that from its very beginnings—after of course stealing land from Native Americans—but from its very beginnings, has been a nation that saw itself is pursuing questions of equality and justice. There would be no monarchies here, there will be no imperial heads. Democracy is on the line.
This is one of the ways in which we can flag whether we have a healthy democracy, in terms of what is happening to some of the most vulnerable persons in a society. If your most vulnerable persons are being stripped of their constitutional rights, then it flags that we have a democracy that is in crisis. That is deeply concerning to me. The fact that for a Constitution as hard fought, and rights, so hard fought and won, that today they would be so easily wiped away is something that should concern everybody.
In that way, this is not just an issue about women or trans women at all. These are questions fundamentally about constitutional rights and our democracy.
Then in terms of where I see hope. I see hope in the fact that, despite the ways in which the 2016 election manifested, there were 3 more million people who did not vote for this president. So while it could be easy to sort of think that really we’re a country that is so deeply divided, or a country where there are so many more people who would prefer that our democracy becomes something other than what it is. The truth of it is that that’s actually not entirely true, and that there are people who are really fighting for, and very passionate about and that truly care about, a constitutional equality for everybody. We must not give up hope and we must not surrender.
We have more women who are in elected office than ever before. More women sitting on courts than ever before. More women sitting in corner offices than ever before. More women of color in all of these different spaces than ever before. The rise of women coming out at the state level and at the federal level running for offices, more of that than ever before. We must not lose sight of that. But there are people in this country right now that are willing to do whatever they can, including be a part of this democratic process, in order to uphold our constitution and in order to secure the rights for everyone in this country.
I admire that and that is important that we not lose sight of because, and this will be my final word, because as I think about it, having a maternal grandmother who in fact grew up in Jim Crow Mississippi, I’d like to think that where there may have seemed to be less hope at that time, people who were willing to see children carted off in paddy wagons and beaten up, and hoses and dogs, that were not there. We are better than that and it’s been a slow turn, and I wish it were far more rapid, but we are doing the work.
Michele Goodwin is an executive committee member of the American Civil Liberties Union and elected member of the American Law Institute. She is also a chancellor’s professor at the University of California, Irvine, where she teaches constitutional law and directs the Center for Biotechnology and Global Health Policy. She is an internationally recognized voice on women’s rights, reproductive health, and constitutional law and lectures worldwide on matters relating to the exploitation of women and girls and the rising regulation of pregnancy and criminalization of women.