tv Discussion on History of Reproductive Rights CSPAN June 13, 2022 10:57pm-1:04am EDT
c-span.org/january 62 watch previous hearings and other videos related to that day. c-span your unfiltered view of government ♪ ♪ c-span now is a free mobile app featuring your unfiltered view of what is happening in washington live and on-demand. keep up with the day's biggest events with live stream of floor proceedings in hearing some u.s. congress white house events, the court, campaign and more from the world of politics. all at your fingertips but also stay current with the latest episodes of a "washington journal" and find scheduling information for c-span tv networks and c-span radio plus a variety of compelling about cop podcasts it's available at the apple store google play, download it for free today. c-span now your front receipt to washington, anytime, anywhere. ♪ >> law professors talk about the
history of reproductive rights cases. and the recent supreme court draft opinions indicating the majority of justices would overturn roe v wade pete hosted by the georgetown university law center. this is about two hours. [background noises] >> hello everyone were here at georgetown. today were going to be talking about the loss history of reproductive rights which exterminate distinguished panel. my name is victoria i am the professor of law and i run an institute onco congress. you might wonder what congress has to do with this bridwell were going to learn about between courts in legislation today. we have some very distinguished guests including one of georgetown faculty owner brad snyder's going to introduce the panel for me today. he's a guggenheim winner is the
author of a new book on felix who will play a role in today'sh discussion of the history of reproductive rights, so over to brad to introduce the panel. >> hi, thanks. it is great to be here. what an amazing dream team of past we have in person and online. as victoria said she is the professor of law her 2008 book which everyone should now go online andne via, or covid of te loss history of skinner v oklahoma happens to be the 80th anniversary of the courts decision in oklahoma but has a lot of relevance to the current debates on reproductive rights. and it would also highly recommend victoria's nine california law review articletw tale of two authors that is a book into her bucket.
lpit has really helped me both s alt young faculty member interet over time in reading her book and reading her longview article think about these issues. after victoria we have john barrett who is a professor of law at st. john's university. he is a world renowned expert on justice robert h jackson he is the elisabeth of fellow and director of the robert h jackson center which is a cosponsor of this event. he hasn't author forthcoming books on nuremberg and biography of justice jackson. he is the creator of the jackson list which gives me great joy. if you want to subscribe to the jackson list you should e-mail professor barrett. : : barrett, we have michelle goodwin who is the chancellor' : leadership network and the
hocohost of the world famous podcast strict scrutiny. an expert on family law, constitutional law and reproductive rights and the author of the 2022 william and mary law review article abortion sterilization and the universe of reproductive rights. we could not have a better group of scholars today talking about all these issues and about how it relates to the current debates on the reproductive rights. honored to be here and i'm going to sit back and let the analysts do their things. >> thank you for that introduction and now we will talk for about 15 minutes so we have time for questions.
those hopefully may be from the virtual audience as well as the real audience because we understand there is a lot of virtual attendees and i'm going to start by situating this in the early 20th century. recently i wrote an op-ed in which i invoked saturday night live in terms of its critique of the opinion. i'm an expert on methodology aside from writing the book i decide how the court decides its cases and an approach i sometimes call original muslim that says we should go back toat the times in which the amendment wasam ratified in 1868, 1870 or 1787. one of the reasons i wanted to put this panel together is because we are going to talk about something that is lost in
that and the greatest generations struggled are things that i believe are important to understanding our constitution and how the constitution has developedd and how we can learn from in the 20th century we will have i believe an important impact on how we address questions and we will hear from professor murray and professor goodwin on how this will impact more modern cases. so, let's go back in time. we are going to go back to 1942. and we are going to talk about a case that was an eight year fight by prisoners inside of an oklahoma prison. started during the depression and drought and ended in world war. it's a story that i would like to say is very shawshank
redemption and to kill a mockingbird. this case can't be understood in terms of its t difficulty and wy it seemed impossible that it would get to the core. why was it against them because the supreme court had ruled earlier. sterilization was perfectlyio appropriate. and in oklahoma and skinner, the governor and the legislature said we are going to sterilize the prisoners inside this prison and they were deeply against him. so, let me take a few minutes.
s it is a less known case. there've been documentaries about it. i will then move on to skinner and finally come to a conclusion about the differences between male reproductive rights and female reproductive rights in 1942. we have to go back to the heyday of eugenics in the 1920s. in that heyday there were ideas about what to do with the so-called unfit. the category was amorphous and could include what we would think of as a stereotype today and you have to understand that it was going different at the time. so it could include women.
the immigration reform that might sound familiar in any event. during this, a majority cast sterilization laws and they did this on the theory that it would rid f folks of the unfit. but at the time there were questions about the constitutionality and many state courts held that this was cruel and unusual punishment and there was something constitutionally itwrong with them so there was a lot of legal uncertainty and finally a kind of made up case that was intended for the court in virginia a doctor and folks decided to bring the case to prove that it was constitutional. and infamously, justice holmes although known as a progressive ruled that sterilization was perfectly appropriate and he claimed some of the most infamous words ever out of his mouth. three generations of imbeciles are enough, he wrote in the
opinion. approving sterilization. so, this was the first decision for women in the 20th century and it basically said you are at the mercy of the state. for health, welfare, we can determine them. what is even more sad about t te case is that we now know because books have been written about it that her child was not unfit or feebleminded which is the term of the day. we also know she was raped by an uncle and that's why she was sent off to the asylum. so it's a deeply offensive case. it has never, ever been overruled. so, by the time we get to my prisoners case you can see that the law iss against them. it says the state may in fact to determine your appropriated rights. those are subject to state
power. so as we are thinking about this we have to think about what happens in the 1930s. sterilization was kind of a hobby for some people. it was also promoted by an award-winning geneticist who thought it was a grand idea and by immigration reformers and by great institutions like the carnegie institute. because it was supposed to rid society of bad genetics. this seemed at the time fully appropriate. they'd been experimenting with genetics and what's good for fruit maybe that's good for america. so what happened during the depression was an intensification of negative eugenics being what sterilize because we will save money. and this is what happened in
oklahoma. there was a push during the drought and dust where they were bombing the clouds and everyone wasg suffering greatly to try to rid the asylum of those who were considered unfit and remember it was quite amorphous. carrie buck had been the victim of a rape. but people it ended up were generally white in oklahoma because other classes of individuals were predominant or black were not even considered. they were not allowed in for the care of black persons were native americans at the time. but for white persons at the time the question was are you unfit for various reasons and those various reasons were quite amorphous. i want to talk a little bit about eugenics because i think the term is full of contradiction. and it was full of contradiction at the time oklahoma was being
litigated. so there was something called negative eugenics and it was about ridding the society of the bad genes and america was a leader in that. most had sterilization laws that applied toil the unfit and hower they described it and we actually send those to hitler and this has been well documented by others.el but eugenics itself had two different phases in america and this is why people were not particularly upset about the laws because itel had a positive face and that positive face was around the meaning of health and eugenics. so it had a manning that was the exact opposite of what we think about today. it had a meaning where it meant just we have healthy marriages. there were diverse counselors
saying families were considered eugenic but the states were labeled as eugenics. it sort of had an anodyne for many people which is why i believe people were not particularly alerted at the time these laws weree being passed to the dark side of eugenics that they couldco be used in very dramatic and evil ways. so, fast-forward now. we have a lot of eugenic laws. fast forward to the 1942 opinion. the prisoners bring this case because they think they are going to be castrated. they are terrified. it takes them seven years to get to thehe court and how do they t there and why, the aclu says we
won't take you. they hired a local lawyer who goes to the supreme court and then finally they riot. prison breaks were common at the time and one prisoner and another breaks again in august. if you know anything about oklahoma in august it's very hot. they've gone to the supreme court of oklahoma and said this is just fine and they killed the warden and the warden is very well-liked. he has helped the prisoners bring this suit in part and allow them to do research to try to show whether you inherit criminal traits. and he's supportive of one of the leaders of three who hire
the lawyer to bring the suit. by 1941, however, the world has changed. a what has changed, we are at war. they search around for someone. oklahomaom has taken a case to e court and they find someone. if anyone knows anything about animalia ehrhardt, they are really at the edge to file their case in the united states supreme court when the break happens and when the warden is killed, no one will take the job unless the case goes forward. the warden negotiates the case will go forward and they find a lawyer who commandeers an airplane, flies to washington in 1941 and gets a stay and to the court decides to hear the case.
and why did they decide to hear the case? they say yes you can prevent the rights. there is no such thing. >> and yet when you begin to read the opinion that justice douglas wrote, you will see why it's relevant, which they will talk more about. but let me talk a little bit about the case and howow it's decided because it is different than what might be expected andy in the discussion we will talk about that. but it's most famous lines are these and i will read them because i think they are important to thehe debate. this case touches a sensitive and important area of o human rights. oklahoma deprives certain individuals of the right basic to the perpetuation of the race.
the power to sterilize may have subtle far-reaching and devastating effects. it can cause to the dominant group to wither and disappear. there is no redemption for the individual whom the law touches. he is forever deprived of the basic liberty. so begins his opinion. as it goes on the opinion decides the real reason the law is unconstitutional is the quality which causes people some concern. you started talking about rights and now you're talking about equality. that's one reason why sometimess people don't side for its rather forceful opening lines involving
rights.. help. he was considered unfit for that reason. they were three-time losers the war created crimes of moral statute for those like ambassadors, so the inequality was about the distinctions in the criminal law. but what is fascinating about this is that it introduces the concept we talk a little bit about this. we heard the name of it earlier called strict scrutiny for the first time in constitutional law. because buck had rejected the argument. not only the rights argument, but the inequality argument. and so, to get around that, justice creates a new rule. he says well, you
know, in a case like this where there is so much atve stake, we have to appy strictct scrutiny to this kind f distinction. so, he marries the consequences of this that are irreparable. not particularly well as we will see from the other opinions that the professor is going to talk about. but he mixes it up in a stew that had never existed before. unfortunately, along the way, and this brings us to act iii in the final conclusion, he never overrules buck. so at the end of 1942, the men have won an extraordinary victory and prisoners will not be sterilizede in the future based on skinner versus oklahoma. but buck versus bell exists and as the professors have written,
what happens is that women are still stuck in many respects and the states continue to sterilize them and ultimately this becomes racialized in the 1950s and 1960s. so, just as justice douglas indicated that it may have far-reaching andng devastating effects that can cause racist types to disappear. women who are black or were sterilized precisely because they were black. i will leave you with that sad tale. we are going to continue on with 1942. the professor will tell us about the rest of the opinions in the case as well as professor snyder
who knows quite a bit in addition by felix frankfurter who i believe knew the link between nazi germany in 1942 unlike any other member at the time.. so over to the professor with professor snyder weighing in. good afternoon. it's a pleasure to be with people frankly. 2022 it feels like a weird new things that used to be familiar to be in academic settings and conferences, lawyer conferences,
judges in numbers and of course that all went away and now it's creeping back and it's a delight and it's familiar and a delight to be virtually with those of you that are out there. i'm very grateful for her incredible book and for putting this event together. it's not a holiday but it's the 80th anniversary. my particular topic will be to talk about a justice robert jackson that wrote a concurring opinion in the case and how it is a very significant part of the constitutional thinking and his legal career and how frankly it wentnd all the way in a brief statement to see what the ultimatete implications were. now let me begin in 1942, and this is a picture of jackson with the vice president outside of the white house. by the time the case came to the court, jackson might well have been in his second year.
it might have been a very different court because jackson would have made the appointment who succeeded charles evans hughes who retired in 1941 and he might not have elevated as we will talk about. president jackson might not havt appointed a senator james burns ouin south carolina to the other vacancy on the court. who knows. right, but we do know although there was jackson for president in the air in the late 1930s and going into 1940, president roosevelt changed his mind, if that'snd fair. who knows. world events certainly plays a significant role. he didn't retire to hyde park after two terms, he got reelected to the unprecedented third term and in june he elevated stone to be the chief justice to replace hughes and appointed burns from the senate to replace the vacancy that had been left by the retirement of
justice mcreynolds and he elevated his attorney general robert h jackson to the court so jackson, age 49, the leading national figure, is the rookie justice in the term that includes skinner versus oklahoma.. that meant he wasn't a significant player on the court. justice douglas wrote william douglas is the justice who writes the opinion. in the back row second from the left he is not very senior. stone in the front in the center of science this to douglas and he did that for a particular reason i will flag. jackson you see on the far right in the back row. the junior justices to be seen and v to vote but not so frequently to be heard from and justice douglas writing for
seven justices who joined his opinion held the sterilization act under which mr. skinner had been prosecuted in a trial and convicted was unconstitutional on its face because it drew arbitrary lines and classifications that violated the protection clause of the amendment. chief justice stone wrote to the next opinion in terms of seniority. he concurred only in the result and the reason he did this and i think frankly the reason he is going to douglas' because as an associate justice he had been part of buck versus bell and he had that baggage and he wasn't disavowing. he was sidestepping him. he didn't join the equal protectionn analyst because justice oliver wendell holmes had mocked the argument calling it the last resort of desperate litigators instead he rounded
the opinion is simply an procedural due process that before oklahoma would perform an involuntary vasectomy he was entitled to a full trial they and the one that it gave him. robert jackson's opinion is in a sense gratuitous. it's un- necessary but it comes from something internal and heartfelt and it's only four paragraphs long so this is douglas and this is stone and this is again jackson and this is the entirety. it's four paragraphs with three lines fromph a second page but it's basicallyge a one page and it's not one of the better-known pieces of the acclaimed career but my argument is that it was
truly big for him and for his career and for the development of the constitutional law since then which includes how to this very day and later this month should think about reproductive rights. robert jackson you may know was not over his career in enthusiast for the substantive due process some would call pejorativelyhe judicial activism or living constitutionalism. think for instance the opinion in the railway express case where he explains the desirability from the democratic theory of grounding decisions in the equal protection clause exactly what douglas is doing here in the skinner case because it leaves the political process a recourse if somethingg is unequally unconstitutional, the process can equalize matters and fixesiz the problems. sterilize everyone or more realistically as in the railway express case, ban every truck
from having advertising as it goes through times square in new york, whereas the due process clause jackson argued in the concurring opinion takes it she was away from the political process. it constitutionalize is something as fundamental and thus leaves the legislature little to no space to continue to tinker in the area. or a second example of jackson's negativity. think of his food with the court majority, rejecting the claim that the 14th amendment incorporates in its entirety the bills of rights and its restrat upon the state government. jackson is not a liberal expensive constitutionalist throwing new rights on the table because he has the power of the justice to do that. but here's where he starts to be important. he picks his spots. think first of thek atoms in ve which was open to the idea that the 14th amendment incorporated
and select most fundamental bill of rights protections as part of the due process constraint to protect individuals and now circling back to the first year on the court, think about skinner. the first paragraph of jackson's opinion is just the clever pan of jackson. he says douglas decides on equal protection but doesn't assign procedural due process and stone decides the process that will detach the equal protection. i joined both of them because they should each join each other. both of these things are problems in the case. cute, clever. on two paragraph two. two is about the due process. it's jackson engaging with stone and he says alternative laws, not what oklahoma is doing might raise different questions. a broad classification of who should be sterilized might translate into the need for much more protective individualized hearings. that's not the oklahoma law.
it's not a global sterilization. it's three times convicted criminals. also jackson's has a more narrow classification might require less process if it is a rifle shot or two or five. that might require no need for procedural due process and a trial format but it is something in the middle and so that's why i think stone is right. again, interesting, not vital. the next two paragraphs are for jackson and constitutional law a big part of the action. he turns to what we would call substantive due process rights and in paragraph three he says this eugenic sterilization program raises constitutional questions of gravity. he says, concluding, yes we've got this president. it upheld the sterilization of a woman that had been found by the state of virginia to begin in bn
imbecile and notice how sort of dry,ve descriptive mom and brazg kind of checking the box and acknowledging the president but doing no more than that. gave constitutional questions. yes we've got this problem. then paragraph four. if there are limits, jackson writes, on government, meaning the political majority of the public. ability to conduct constitutionally biological experiments on minorities. the language is here on the screen and it 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. but jackson says this doesn't
raise those ultimate questions. infected. before reaching this problem which i only mention to avoid the implications of such a question may not exist because it was not discussed. on it i'll reserve judgment. now a reservation of judgment this is waving a big red flag about the concerns that he has. and this constitutional dignitary and concern for natural bodily powers becomes part of the protective legal vision that is a defining aspect of the life and career. i will flag a couple of different columns if you will. first we see it in the supreme court judging and the concurring opinion. his first opinion on the supreme court in edwards versus oklahoma where the court struck down the california nova travel statute andno jackson says freedom to travel is a privilege in the
citizenship in this country and what is freedom to travel, it is a bodily function, it is walking or driving from here to there and jackson puts the marker down in the first opinion. a second opinion, his most famous perhaps in his opinion from the court in the board of education versus barnett, the next year after skinner, so now we've gone from the fall of 41, june of 42, june the 43 as when barnett is assigned, jackson writes for the court striking down the state's compulsory flag pledge of allegiance law overruling the decision of a few years earlier and jackson writes the sentence that is the conclusion of the opinion. the very purpose of the bill of rights was to withdraw certain subjects from the political controversy to place 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 life, liberty and
property, to free speech, free press, worship and assembly and other fundamental rights may not be submitted to vote. they depend on the outcome of no elections.s. and now think a minutein about what barnett was talking about. these two jehovah's witness schoolgirls had religious scruples against pledging allegiance to the flag because the book of genesis says thou before no graven images, there's one true god is their belief. what virginia was trying to do is force its orthodoxy into their mouths. a kind of physical intrusion and it's that compelled profession coming back out of the mouths that jackson is drawing the line against. a third decision it's in the
distant versus the united states where he is one of the three thjustices who votes that the exclusion order against japanese americans including a vast majority ofva citizens during world war iii was unconstitutional. that of course is a fifth amendment substantive due process decision and jackson says he didn't choose to be japanese-american and the federal government chooses to use that to physically relocate him by removing him from the west coast. his body ordered to a race track. jackson's has our constitution doesn't permit the racial lysing of criminal procedures. and a fourth opinion ready for the vote jackson joining justice frankfurter's opinion for the court in 1952 where the court unanimously had division and the vision andrationale strikine forcible stomach pumping ofng a man to extract physical evidence of drug crime. jackson voting for the body against the government's
ability. am i saying that the jackson's jurisprudence led the charge? no. i'm saying thee jurisprudenceee sprinkled this needs to understand that as fundamental rights go the body is not very high on the hierarchy and of course robert jackson did more than judge. this is harry truman in 1945 appointing jackson to be the chief prosecutor of the nazi war criminals in nuremberg. and jackson goes and misses a whole year in the supreme court to prosecute in this courtroom the wagers of aggressive war the perpetrators of the holocaust and all the dimensions of physical subjugation, violence, extermination that it contained. this is jackson at the podium opening that a trial in november of 1945. and these are the defendants who were perpetrators of the command decisions that were part of the
bodily violence among many other crimes. jackson is standing for the same principle that he's articulating in the concurrence. am i saying that robert jackson would have been the eighth vote in roe v wade? in an anachronistic question of grid he died in 1954 but if you think about the cardiology he's only 88-years-old if he lives until 1973, younger than stephen breyer is today you were am i saying if jackson was the longest living person in history he would have been six voting kc casey that is where skinner and nuremberg and all of this points. was it really all there in 1942, yes. this is a letter and assistant attorney in buffalo new york sent to justice jackson a week after skinner. his name is robert hitchcock and
he was later part of a big new york state law firm. he is acquainted with jackson and writes this letter complementing his concurring opinion and he focuses on the statement that if there are limits in other words the paragraph statement and hitchcock unfolds it into says sterilization is a powerful weapon once it is approved in a single generation the supermen can eliminate jews, communists, democrats, bankers or any other group or class. and in the last he makes a joke about shakespeare's line. jackson's response is thanks and he jokes about the lawyer joke but doesn't disavow the heavy reading of paragraph four that there are limits. the import came to be understood
better over the next decades. the court cites it and builds on it. general individual rights to use contraceptives, roe v wade of course and planned parenthood versus casey and to some extent this all drew out of g seeing skinner as huge. the book allows us to see it as historically huge but to see this i think the credit goes to harvard law school who in his treatise in 1978 the constitutional law says what is skinner stands for is strict scrutiny but not just fundamental rights, not just the bill of rights and not just things that are otherwise protected in explicit terms like race. but it's also individual interests that are not yet recognized as fundamental but are the areas where the
government could make choices for people about the things that matter most to them where the danger is too great and the majority power what to do this to oppress and subjugate minorities. innd other words it's a gatewayo a category of new fundamental rights and in explaining that he says it is the star the supreme court added to the constitution and if you know robert jackson's opinion in west virginia board of education versus barnett, that isn't fa' off and it's clearly a little bit influenced by the description in the constellation and credits douglas and credits jackson. so in conclusion, as jackson and skinner felt and explained our constitution is about many things. liberty and inequality intertwined as explained in the bodily realm is at the heart of
what the constitution is about. this is my body and that is yourst and yours, not the governments, except in truly extraordinary circumstances that may be can never be envisioned and in the specific realm of capacity and reproductive function, that means the government should trust each of us equally and should respect the liberty of each of us fully with regards to our functions. that means among other things to have heterosexual sex or not, to seek to impregnate or to become pregnant or not and to continue to be pregnant or not. and what of all the nazi talk that can be lobbed against government actions? i think it dilutes history and cheapens arguments to call ame government that makes any choices for people a nazi
government. there was only one of those and we should remember it i in its reality. on the other hand, understanding that government that is restrictive of liberty and hostile to fundamental equality is attacking something unitary and vitally fundamental in each of us is a lesson we take away from the 1940s and nuremberg. these are not ways a decent dignified society should d constitute itself. in our legal system which requires the government to provide due process and equal protection, it isn't how we are constituted. so, thank you to jack skinner and his lawyers supreme court, robert h jackson for standing up 70, 80 and more years ago for that and for teaching us now.
>> thanks for that. after i talk a little bit about the role in this case, professor marie is going to speak next, notin professor goodwin. that's on me but before we do that, i want to go back to 19422 for a minute and just remind people about the holding in skinner as an equal protection rationale that most people believe is due to the influence of felix frankfurter on the decision. me tell you how we got there. as victoria e alluded to, he was really privy to what was going on overseas. perhaps unlike any other justice in 1942 and there's a couple of reasons for that. one, since 33, frankfurter when
he was a harvard law professor, he was a chief outside advisor for franklin roosevelt. he continued that role as outside advisor to franklin roosevelt afterr roosevelt appointed him to the supreme court in 1939. judicial ethics then were not as challenging as maybe they are today. not only that but frankfurter was instrumental in getting henry appointed secretary of war as an acting supreme court justice and one of his former students was serving as one of the chief assistants. on the regular, he was having conversations with both about the war and the atrocities they were committing and all others who were not part of the race.
not to mention the nine years since the rise of hitler that he'd been working on this issue of trying to get jewish refugees out into palestine and the united states. so, all of that is a sort of backdrop of this. but i don't think that any of that had toto do with pushing hs colleagues to adopt an equal protection rather than a due process rationale. he believed there shouldn't be a due process clause in the constitution. he thought it should be written in a document and the reason he thought that is because he opposeda the idea of the supremacy and thought that it gave the justices too much power. he saw the court as reactionary and particularly anti-labor and throughout the early part of the century thely court used the liberty provision of the due coprocess clause to strike down lots of prolabor legislation.
so he was to sign onto an opinion with the due process clause of rationale. he didn't distinguish between the good due process decisions bad ones. let me give you an example. this was a law that was passed to ban the teaching of the foreign languages and schools and it was an anti-german law. the society of sisters 1925 was an oregon law inspired by the ku klux klan to try to shut down all the catholic schools in the state by requiringng schoolchildren to attendnd publc school. the court decided with both of the casess on expansive due process clause wasn't struck down both and frankfurter thought they were wrongly decided. it came down most of the constitutional change should come through the political process and not from the supreme court of the united states expanding like an accordion the
due process clause. he thought particularly when it came to federal law for the court shouldn't be strikingur dn federal law unless it was unconstitutional beyond a reasonable doubt. he was willing to side with criminal w defendants like skinr and was also in favor of what we call today the civil rights and was a leader in the courts move to getting the opinion on brown v board of education. the other thing he didn't like that hasn't been talked about yet was chief justice footnote and that is the start of this idea of strict scrutiny. the chief justice famously writes, famous today but not to then, famously writes the court will take a harder look at cases that infringe upon the bill of
rights were the political process such as voting. he was skeptical of this approach is again giving the supreme court too much power to decide when there was a defect in the process and it should weigh in so he very much favored a judicial minimalist equal protection rationale that the state of oklahoma wasn't treating similarly situated people the same way by making embezzlement's not but making stealing chickens were robbery amoral preprinted the state of oklahoma was treating equal things unequally and that i think was the way of deciding on behalf of the criminal defendants but not creating another expansive what today we would call substantive due
i'process decisions. i'm going to hand it off to melissa and michelle in case you are bored and want to talk. i am excited to have this conversation with everyone and i think it is a timely conversation so i will begin first by just sort of noting i think there are a lot of things we t could say at this moment about the current landscape for reproductiveve 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 want to focus the discussion on the very recent writings from the supreme court.
planned parenthood of indiana and kentucky and of course the leaked draft opinion on the women's health organization. so, let me first begin with the concurrent. may 2019 the supreme court issued a opinion on the shadow docket on the planned parenthood of indiana and that case is a challenge to two indiana abortion restrictions one of which was a selection law that prohibited abortion if it was intended for purposes of rape or because of the diagnosis of a fetal anomaly and interestingly although the court granted up to one of the challenged provisions, it denied up to the challenged trait selection law and the fact that the court refused to hear a challenge on this law prompted justice clarence thomas to write a separate opinion and their for
denying that might have been the end of things but justice thomas went further crafting an opinion in which he not only insisted thee court would one day have to deal with the prospect and whether they were simply modest to protect from the eugenic potential and hete further wentn to craft o a history of eugenics in which the history of abortion and birth control movement and linked it to the history of eugenics in the united states. as justice thomas explained, margaret sanger the founder of planned parenthood worked hand in glove to spearhead efforts to expand the use of birth control within the black community ostensibly for the purpose of stamping out black reproduction. justice thomas was no doubt thinking about the disproportionate black community today and perhaps viewing this as the contemporary residue of
an earlier effort to market family-planning toto the community. then specifically invoked what we've already heard about today the 1927 days in which the court famously credited virginia's eugenics program that targeted the feebleminded and led to the three generations of results. at this point justice thomas circled back to the challenge of the selection law observing that such were the states modest attempt to ensure that eugenics could not be used to fulfill its potential -- that abortion couldn't be used to fulfill the potential to eliminate unwanted traits or characteristics. when it was announced and received some attention that would quickly be overshadowed by other major developments.
but it's incredibly fascinating in part because it's entirely gratuitous and it touches on so many things we are currently seeing in our current reproductive life landscape and i want to understand it as an attempt by justice thomas to recap the meaning of abortion both the legal doctrine and society so oneni of the ways abortion, reproductive justices have argued is that in positions on the abortion rate are not simply assault on women's autonomy but they disproportionatelyor impact womn of color and poor women and should be understood as posing harm. it struck me as i read the opinion he seemed to recognize the wayni in which the justice
movement he framed it as a question of racial justice rather than injustice so specifically if the reproductive rights movement in tandem with the justice movement had argued that abortion and reproductive rights were about ensuring women's equality and racial justice, justice thomas' congregants turned that logic on its head but the real racial injustice that was being done wasn't what they did to the communitieso of color but rathr what abortion itself does to those communities. so on one level, the opinion offers a dissent that has already been percolating and indeed in the position the judge wrote a dissent that now justice
amy coney barrett joined in which he suggested it might fall outside of the scope because thosees pieces never considered ababortion restrictions that wee not aimed at promoting women's health but instead' were positioned as antidiscrimination measures so trade selection laws were to prevent discrimination. of the country and provided additional support for the idea that the state level restrictions on the eugenics abortions functioned as antidiscrimination measures and thus are outside of the zone but that's not all the conference. in the short term it does offer that doesn't but as i argued in the review it goes further to lay the foundation for overruling on the ground that
the right to abortion doesn't beginn in 1973 with roe v wade but rather it's even earlier in the 1920s with the movement and racial justices of the eugenics movement so to be clear one of the important contributions is to provide a language where we talk about row and it is rooted in ruling on the racial injustice and remedying that. there is a lote' of history that have overruling cases on the ground that they are rooted. all we have to do is look to the case in the constitutional law brown v board of education that was a case that was not only famous to law students but figured prominently in the oral argument on the ground is that
this was an example of the case where the court appropriately departed to overrule a past president, plessy versus ferguson. so the court determined it hadn't fully taken account of the racial and psychological damage t segregation posed to black schoolchildren and for that reason they departed and overruled plessy versuser ferguson. we have seen more recently similar impulses towards correcting and remedying racism and racial injustices as the court has overruled other earlier cases. so consider for example the october case of ramose versus louisiana that invalidated the policies of allowing criminal convictions to proceed from a nonunanimous jury. the question of whether the nonunanimous jury was a sixth amendment that had already been considered w in 1972. nevertheless they concluded that
because it was out of step with the jurisprudence and they failed to consider nonunanimous origins in the reconstruction era effort to entrench the 1972 decision considered and overruled. the disposition of ramose suggests how roe could similarly be revisited and overruled on the grounds of racial injustice. justice thomas' critique of abortion new justifications reconsidering and overruling that decision and specifically these circumstances by justice thomas has surfaced and linked road to a history of racial animus that could render it a remnant of an abandoned doctrine. so for that reason i was especially interested to read the draft opinion of the women's health organization.
notably in the text of the opinion, justice aliton, that wrote didn't reference eugenics at all but even more isningfully there considerable discussion in a footnote in that position. footnote 41. there justice alito observed a series of briefings filed before the court noted they have liberal access and had been motivated by the desire to suppress the size of the population. he then went onn to say that is beyond the excuse on that demographic effect. the highly disproportionate percentage. i want to just stop on the footnote. as we've all discussed over the last couple of weeks the decision to overrule has nothing
to do with eugenics but instead justice alito linked the fact that the right to an abortion is unenumerated and is in the deeply rooted in the history of the tradition of the country. for that reason it just seems seemsentirely gratuitous that ts footnote appears in the draft opinion. there is no need for it. they've already decided that it's wrong and they don't need to stand by it because it is not deeply rooted. so why then is this footnote included? is it simply a nod to justice thomas as a gesture when justice might make to a colleague, perhaps. or more interestingly as i have argued elsewhere, this again creates the conditions where reproductive rights are inextricably linked to eugenics
and while that may not repercussionsve for abortion, once roe is overruled on other grounds it may lay the groundwork for countering other reproductive freedoms including the right to access contraception's and indeed the argument that justice thomass cracked in the opinion about the link between the movement is perhaps more forceful in condemning birth control and access to contraception so that's one thing we might take out despite the efforts to sequester the question from other reproductive rights and freedoms that are unenumerated. this particular footnote might suggest that the majority is already laying the foundation for discrediting the excess going forward. so all of this suggests the effort to link abortion and contraception to the logic of
eugenics is very interesting on a number of fronts. the effort to recast the meaning of the reproductive rights from the questions of equality is especially noteworthy and perhaps even what this narrative doesn't do and what it neglects entirely is the degree to which the true investments and in controlling the reproduction was nott in abortion or contraception, but rather coercive sterilization of three predictive control into social engineering. i want to consider what it would mean for us if we had this new found interest on the right and reproductive rights and racism and eugenics to focus less on abortion and contraception and more on the robust discussion of
sterilization practices. what if we supplemented the narrativen to clarify the movement was directed primarily at improving and purifying the race and it was a tool of white supremacy not necessarily stamping out blackness. what if we acknowledge to the extent the movement focused on abortion and contraception at all. it was limiting access to those vehicles of reproductive freedoms 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 insofar as they were interestedw in limiting, the interest wasn't directed at the community but towards those individuals that possess the traits that are deemed unsuitable for the prosecution of the white race. people like carrie who was poor, undereducated.
people like jack skinner. and meaningfully, what if we were to take seriously the true eugenics threat that lies in the reproductive rights and in the refusal to consider sterilization as part of the universe of reproductive rights as much as abortion and contraception and at this point it is worth looking beyond the 1940s. they've talked about the days of the eugenics movement and how it's very much affected the legitimacy of the movement. what we haven't talked about is even though that was the case and the social fervor for the eugenics did die in the 1940s, eugenic sterilization was repackaged especially in the 1960s on the heels of the civil rights movement and welfare rights movement and it expanded the scope of public
assistance to include poor women of color. to understand this relationship between race, class and dependence on the state we might consider a challenge to the northcs carolina sterilization program litigated in the 1970s by ruth bader ginsburg and the aclu women's rights project. the claims that had been subject to the sterilization as a teenager because she had already given birth and her mother and her siblings were receiving public assistance. the family was told if she didn't submit to sterilization they would lose their access to public assistance, a thing her mother couldn't afford to do. as ginsburg argued, the first sterilization program had utterly violated the constitutional rights condemning her to infertility and dooming
her chances of marriage and, quote on quote, a normal family life. ultimately the case did not result in the stabilization program. the cased was seemed moot becae voluntarily they phased out the program but other contemporary challenges, the young women in mississippi and alabama, the centrality of a technology of reproductive control well into the 1970s and interestingly more recently in 2020, september of 2020 we were faced with a scandal in detention when it was argued that women in detention contained by the government were being subjected to coerced sterilization without informed consent and often without the benefit of a translator. that story occupied our
attention foras almost one week and then perhaps ironically the news cycle shifted. justice ruthst bader ginsburg passed away september 19th of 2020 and her passing drowned out the fate of those women in detention and the prospect of a contemporary conversation about real life sterilization within our borders. so today as we think about all of these different threats and the account to bring them together i hope that we will think about this effort to associate abortion and contraception with eugenics racism and thinkll about how it not only affects this contemporary discussion of the future ofon roe v wade, but howt also overlooks the state-sponsored abuses that we continue to live with in our very country and that continue to plague a certain communities in the country in ways that area clearly unequal. i will stop there. >> thank you for that powerful
presentation. >> and i also want to thank you and also my colleagues on the panel. thank you for organizing us and bringing us together. so, as i wrap up the panels discussion transitioning providing a great pathway i think about 1851 and sojourner truth's speech and for much of history what's been unpacked about that is that she spoke about chivalry and what is curiously men at the beginning of the speech as she says and i were 13 children and saw each one snatched from my arms and nobody heard my cry but god, ain't i a woman. now this is a time that is proceeding the civil war and the reason i take a page from history that goes back perhaps a
chapter before the conversation that we've grounded today in eugenics is to 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 and as professor marie mentioned over the last few weeks, we have all been stunned by the 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 what's overlooked significantly that there is a nod to it in roe v wade at a self is the fact that abortion hadn't been criminalized historically in the united states. the pilgrims performed abortion, indigenous people performed abortions. abortion becomes a political wedge issue and tool in the period leading to the united states civil war.
at about that time nearly 100% of reproductive health care in the united states have been performed by women. these were the midwives and if you pause to think about it than is not a curious thing. there were no guys with lab coats and stethoscopes roaming around asia, africa or anywhere else. no, gynecology and abstract tricks becomes a field -- obstetrics becomes a field in the 1800s. if you read the work of the story you notice the deep insecurity. what we call medical schools today were schools of anatomy. and what you notice in the pamphlets that theymi call books were ways in which they felt very intimidated by and threatened by the gods of anatomy who claimed they were doing nothing special in fact they were doing women's work. doing nothing elevated because half the people in the country were in fact black women.
it isn't that that is the story alone but it must be understood as a perfect storm of what is happening. the rise of gynecology because by this point there are the tools that were being perfected. notably in ways that i and others find alarming. deeply alarming because enslaved black women were used as the guinea pigs in the development. famously the statute in central park that recently was yanked wrote in the autobiography about how he was, he would have an epiphany and would cut into their bodies and do all sorts of things like this. he writes about this in his
autobiography and it is worth taking a pause to think about who gets to tell the story and sit on the stage. i was alarmed when i read that autobiography but by that time there were already statues in the central park and all across phthe country. he was already considered the godfather of gynecology. he was praised by men of medicine and yet if you read his words, not the words of the women describing the hoarder and the terrorism that he inflicted, but his own words that describe did and how he believed black women did not feel pain so as he would cut into their bodies denied them any kind of relief so it is a perfect storm of the building of gynecology and the coming of the civil war that leads people to write about the urgency of women spreading their lines north, south and east and
west. abortion becomes an expedient political tool for the man of medicine to be able to shut women out and you see it quite directly they lean into medical organizations and legislation. legislators who were quite keen on preserving slavery who were quite concerned about the kind of terminology we are hearing today, replacement theory into andthe notion that somehow if in fact the civil war comes into the fact black people are releasedor from slavery that thy will darken the united states and so they write about the cruelty of these midwives, the unsanitary nature of these midwives, the immortal things that they are doing but ultimately, it is a mode of capitalism and of monopoly and a way to shut women out. this campaign that is part of a perfect storm is effective. we go from the 1800s where women
impact not only the racial trap undisguised by legislation such as the fugitive slave act but also the lasting and even haunting social, cultural and rhetoricalal norms and more aren our society that would lead us to believe what was articulated and justice thomas' concurring opinion and in this robust footnote would be accurate. first let me talk about how the law had been complicit and i think it's important what my co-panelists talked about is the way that it's rooted so much of this and again if we take chapters back thinking about
eugenics as part of creating the pass and if you think about a fewat areas some of the first walls in the colonies were those that were designed to inherit the status of their mother and this improved the offspring of plantation owners independente freedom. it serves multiple purposes. it shielded white men from the legal and financial obligations and meant black children of white fathers could never establish paternity, freedom, citizenship and the inheritance of rights. as such exploited the vulnerability to the predations of white men. slavery perversely incentivized slaveholdersce sexual assaults n
the enslaved property, being black women and notably they lacked rights and couldn't claim even their very own offspring nor spare them from enslavement. a black women and their offspring wereer considered the property of the person who owned them and it's worth noting this wasn't just an enterprise of white men owning black people but white women did also. to further skew the tools of lawin the chapters before eugeny would mean moving to hypo dissent. crafted in the united states before eugenics that mandated anyone with any african biological heritage would legally be designated as black and therefore legally by law inferior. then we have the third guardrail
and the protection before i even get to eugenics and if that thas to be this idea that people should be barred from marrying people outside of their own race and specifically this was about creating guardrails around whiteness and now we get to eugenics and it's an important conversation to be had and i will get to the present but it isis worth noting that eugenics was importantly as mentioned something that was not a kind of black-and-white enterprise. there were 36 different and also outside of it it's worth noting that there were 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 boundaries of whiteness but courts police did not only inside but also outside giving further evidence. legislators and courts reserved whiteness that conferred privileges for people who appeared white and here those of you that know the cases i'm about to talk about. thece case in 1922 the court sad to the provision is not that negroes and indians shall be excluded but is in effect but shall be included. the intention was to convert the privileges of r citizenship on e class or person whom the fathers knew as white. and to deny it to all others. these were cases that were backk
to back where asians were assuming to become essentially white. they didn't want to become white but being black was so awful. jim crow law. thousands of them relegated people to second-class citizenship so we see in the early part of the century cases coming to the supreme court challenging this seeking to become citizens and challenging the notion of what is white. we see in the case following that and here i will quote from the united states case and then lead us up to the present, justice sutherland wrote it may be true the blonde scandinavian and the hindu have a ancestor in antiquity but theca average man knows perfectly well that there are unmistakably profound differences between them today and it is not impossible if that
common ancestor could be materialized in the flesh we should discover that is differentiated from both of his descendents to preclude the racial classification. now what did all of that mean? essentially the court said effectively we know what whiteness is by the way we look at it and these were ways of policing those boundaries so what does that mean today, what does that mean for this footnote, 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 selective turn to history. it's curious. there are multiple omissions through history itself. there is a return to looking at the words of sir matthew hill
that meant women would have no independence themselves and used as a tool of law to justify marital ratema and also to justy portable instances of fathers being able to reap their daughters into zeno consequences from that out of the notion of parental immunity andro the u.s. state supreme court articulating for daughters to be able to sue their fathers would essentially mean disrupting family harmony. this is the history justice alito cites to in the opinion that in the draft opinion that may serve as the piece for dismantling roe v wade. now whatnc is to come from all f this and what are the real world affect us? i want to close on this and we could spend a whole weekend digging into 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 about god. justice breyer sites a study that's been picked up by the cdc and the data that is so well-known that a person is 14 times more likely to die by carrying a pregnancy to term stand by having an abortion. this is the datand that is not controversial inn that it's controversial in terms of the substance but not the robust evidence thatru we have. and if we are to take any kind of a pause on what sojourner truth said so long ago, we might think about what this means in contemporary terms where a black woman is 118 times more likely to die by carrying a pregnancy to term then by having an abortion. women are three and a half times l,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 tes of maternal mortality. that is the united states is not in the company of other industrialized nations, air quotes around that but it's not of england, sweden, germany or france. the united states it's with saudi arabia and countries that tolerate the public lashing of women and the stoning of women. that's where the u.s. is. now justice alito claimed that there are guardrails potentially that roe could be dismantled but there are guardrails that would protect the access, that might protect interracial marriage, same-sex marriage. that is hard when you see coming from the states that are proposingat the most aggressive
and making claims that they will seek to make sure that contraceptive access is not available in their states. this wording and draft opinion may mean very little given the signal it sends to clerks that may refuse to issue a marriage license to a same-sex couple or a couple it happens to be interracial. there's more that i could speak to but i want to pause so we can give time to the discussion so we can havee as a panel. let me close by saying one of the things i find most alarming by where we are today with this leaked draft opinion is that there is a level of cruelty into some might say that is the point. nowhere in the opinion is mortality mentioned except in
reference to roe v wade and just within one paragraph of that. a feature of the antiabortion legislation today, something we witnessed even a few years ago our no exceptions for rape or incest. none of that is taken up in this opinion. what in the world could we call this given whatlt is at a staken our country? >> thank you so much. i think now we are going to take some questions and try to open up the floor. first to the people that are here in the audience i have a couple of questions online i'm going to read as well but is there anyone in the audience that wants to ask a question before iin start the online questions? >> let's wait for the microphone real quick. >> thank you for being here. i'm curious there's been a lot of originalist scholars answer
especially because abortion was legal in all 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'm just curious do you think that there's room for an alliance like the non-originalist scholars and people who think this way on this topic? it seems to me that there should be. >> i would be interested in with the other panelists have to say. i don't know if there's an alliance. the originalists have been out
there talking about these opinions. my review of the opinion will not read that way and this is my guess based on the last term -- i've been studying and in an article i just gave at harvard it looks very much to me like a case called fulton which is a congress of occurrence. this looks like a concurrence to me. even though they are going to uphold and perhaps overrule roe v wade. could there be an alliance? historically people have made the argument that in fact i've been saying madison would be rolling over in his graveme
because it was in there precisely for the reason if you enumerate rights, some people are going to say they are not written down. if we knew this in 1787, surely we could know it now. ande it is the development of that idea which is why i think however in perfect, this is why i wanted to give you a sense of the 20th century recognizing this and because of the notion of human rights which is a worldwide development. i understand my colleagues we have some originalists and don't necessarily think roe v wade should be overruled and that is their position. you can read it in the text and other parts of the text and privileges and immunities but at the end of the day when i wrote
my piece saying criticizing the leaked opinion for going back to the 13th century, 1868 i wouldn't be sitting here if it was 1868. we couldn't practice law. we were not covered by the 14th amendment because of the recognition of that during the 20th century that i sit here today. it's possible to have a different originalist argument but that would be my answer. the argument suggests privileges and immunities perhaps would be a better world but that wasn't used in any of these cases so however brilliant or that may be as a solution to the problems, this court has not invoked it s,
my critique is of the court, not of over journalism in terms of their practice. my view is that it's select. i think they've misread the second amendment. so overn to others who have something torl say. >> i would like to build on that. one can see that throughout history h and one sees it deeply init his opinion. i mentioned earlier it does matter who gets to read the book and sit on the stage. imagine if we think about the 13th amendment in ways other than just it freed slaves and ended the amendment. what would that mean in terms of over journalism and contextualism? the library of congress and my
home library are filled with books where we can understand what was happening and we understand the subordination taking place during that time. it was written about by abolitionists and spoken about when the 13th amendment was being debated. if you think about the text of the 13th amendment neither slavery nor involuntary servitude shall exist within the united states, this is not one that is simply being in the fields and picking cotton. ..
>> all persons born or naturalized in the united states are citizens of the united states not the unborn are fetuses are mentioned what happens to be mentioned in the constitution are those who are born. so the selectivity again that one sees in this opinion but also for us to imagine what happens when women are able to be thehe interpreters for the most cherished documents. >> can you follow up on that as well?
we talk about a number of us without intending to the idea of late-term abortion is contextual. i don't think that's the case. when they were drafting the recent amendment slavery was top of mind and they were focused on repudiating not only slavery but everything else that characterized the lives of the enslaved so writing a marvelous book of the constitution and family values that talks about how the 14th amendment is to address the conditions of slavery and enslavement. there wasti no access or family integrity and the children. or no bodily autonomy and you could be put into the financiall betterment.
the reconstruction amendment was specifically aimed at repudiating all of those. so when we can see the right to abortion is not explicit then we give up too much there is the implication of the due process clause. and they understood what they s were doing and consciously responding to the conditions on the ground of enslavement. >> absolutely. >> methodologically do you think it was a mistake. [inaudible] >> thehe question was, do you think it was a mistake from
the originalist perspective because the historical arguments were neglected? at least as we have seen from the justice alito draft opinion quick. >> i think there are three self-proclaimed originalist but three others in that conservatives six disallow that so for tactical litigation reasons i'm not sure the originalist arguments would be pitching a workable majority. and it is on them to join on whatever ground they want we know from this february leak that where the draft indicates where they are. like the statutory case with the chief justice roberts with the contextualism, joined liberals w with title vii there is no part of this on the
court the academy is a different question and then it will certainly continue but that's not relevant to deciding the case. >> i will mention my think he is correct and i have been studying with the six republican appointees because they call themselves that in public but the truth is a litigation person there are significant differences between their ability with that consistency as opposed to precedent. they know a regionalism and contextualism the real assault is unprecedented. that is the meaning of the word legislature in the electionsed clause. that's to get by on —- with
her prior precedent. that's why those who are worried as a conservatives , talks about history and appeals to in its opinions. but as a litigator it's not a reliable vote in that direction and as a guidance but not determining the answer as justice thomas who tried very hard to be a more consistent originalist. >> i was struck by what was said. the strategy and professor murray is absolutely correct we should not concede. we need a contextual strategy and justice kagan famously said we are all contextual us now and a 13th amendment
argument building on the slavery case that authored ostensibly by justice stewart in the law clerk is one way to go. [laughter] but i think i do know others have been one the split emphasis on the citizenship clause could not be more right. that made everyone equal citizens as jacob howard said in the 14th amendment. this is the heart of the 14th amendment. and there is no way that women could be equal without control of their bodies. that seems to be an argument we have to make going forward. and confront the majority with these provisions that it is
ignoring. >> it is profound what took place because we can look to history. it was not just black men who were freed. but if in fact with my congressional testimony a couple weeks ago it would only apply to black men than we would've seen black women stuck in the same position as before. that that is not what happened we see the original meaning taking place afterwards and being able to see that. and then thatss legal history demonstrates congress did not intend black women would remain in the confines of human slavery that time again and the judiciary has overlooked this text in the
application. >> in 1791 i agree with all of this but at the start the fifth amendment due process was only for men but for protecting their bodies and other fundamental rights and civil war postwar amendments spread that more widely. and then that equal citizenship that takes something for thehe chosen people at the beginning and constitutionalize it for all. >> and this is starry decisiveness and selectivity. it is the determinative jurisprudence coming from a particular ring of the court
they could be vulnerable to this generally but with the hostility toward reproductive health rights and justice. one of the ways you can see justice alito contradict himself is to look at hobby lobby. there is no precedent there's nothing in theat constitution that you can find that grants religious identity to corporations. yet we see justice alito in 2014 and if we unpack this we can be far more new ones stand look at the records so they can see it is not selective that outcome determination. that is really a threat more broadly to reproductive health but our democracy andic rule of law. >> i want to hear more but i want to read i a few of the
online questions so we can add their voices into the discussion and maybe build on things isn't it true the antiabortion movement is driven by religious beliefs? and also focusing on personhood is a religiously driven conclusion not legal or scientific on the grounds that antiabortion is seek to impose their view on others. just one related question. is there not but then they decide a case based on the facts otherwise will justice alito go beyond? a lotot of our listeners and those i want to open this more up to t my colleagues. >> llc no phobia and on deeper
inspection on the rise in the united states and that is quite disconcerting so what we see in terms of this view is not even a full-scale christian view that is antiabortion certainly consistent with other religious ideologies with people in the united states and that's a good point griswold had been decided that it is largely an anti- a contraceptive statute promoted by an element because even catholics are decided on this question.
>> i just want to say something about contextualism that has to be made and those arguments are there. and that is the selectivity. of course in the easy cases december 31 means december 31. but that will not answer the hard cases. one of the particularly annoying features is it picks and chooses the text that it likes. forget the amendments are for teens amendment. so someone who spent a lot of years studying and i find it
so professor murray i'm interested in what you have to say. >> that is incredibly astute. i don't know if i would use the terms active a regionalism that exactly right. there are plenty of traditions in the united states that do not have the same antipathy. andur had with mightily different results. and somebody was noted what if
that is with the terms and actually that's how they think about it. if the fetus poses a threat or her life then she is warranted by terminating a pregnancy. you prioritize the mother ahead of the unborn child. that then to challenge the freedom and what we have seen the last couple years is the support that very much prioritizes perhaps to the detriment to the other part of the first amendment of the establishment clause. i think it would bring home the conflict if this court had to reconcile the into that the one —- antipathy for the exuberance for free exercise because i think there is a
that then tour be part of that genocidal thought that interestingly black woment both the black outside power movement and florence kennedy between the black power movement noted for her black brothers that we want to be part of this and if theyla are going to be a part of it maybe we need to travel light. and if you are really
concerned about the question of genocide she t and other black feminists said you shouldn't be with access to abortion or contraception but what is happening in mississippi where black women are literally being sterilized because they are dependent. >> just to add to that, the night in which often his wife identified herself as a black feminist who delivered the speech and saidsh she could not be more proud to be there that evening reading his speech on his behalf.
>> anybody from the audience? >> it's notal the most important but worth talking about the starry decisive concerns that justice alito brings up our demonstrable and if that is the majority opinion, does anybody on the panel want to opine what it was like going forwardd and then to reverse the war in court and be against
but that's why needed 21st century is so huge. that is a huge mistake. every think of the warren court there is a lot more in the 21st century from constitutional law some of that is errors. some of it is wisdom that we all embrace. i think starry decisive and then they find that it is manipulative are so that i wouldn't be used opportunistically and this is why the case.
>> i want to find the recent comment the we made a very clear argument. we stand here which is on the path but the whole process for choosing arguments. >> let's be clear i completely agree with that co-pay notice there are on —- important reasons over showing just goes long that when you look at but