The Scarlet A Edition (Rebroadcast)

Episode Notes

Transcript

Jonathan Amarillo: Hello, everyone.  This is your host, Jon Amarillo.  As you undoubtedly know, last week’s decision from the US Supreme Court and Dobbs v. Jackson Women’s Health overruled half a century of precedent, and with it, what had been women’s federally protected constitutional right to obtain abortions in the United States.  No matter one’s view of abortion, Dobbs is probably the most controversial decision from the Court in my lifetime and then the lifetimes of many of our listeners.  And in recognition of that, we’re doing two things here to address the decision.

First, this week we are rerunning an episode we previously released in September 2019, a conversation with lawyer, law professor, bioethicist and author Katie Watson about her book “Scarlet A:  The Ethics, Law and Politics of Ordinary Abortion.”  It’s a fascinating and enlightening conversation, every bit is relevant today as it was three years ago or even just last week.  And it lays foundation for the discussion we’ll have in July’s episode.  That episode will be with Michelle Wetzel, general counsel of Planned Parenthood, Illinois.

As always, the conversation will be unscripted, so I can’t tell you exactly what we’ll cover, but you can bet it will involve a frank discussion of the Dobbs decision, what it means for women in Illinois, what it means for women across the country, and what it means for everyone when constitutionally protected rights can be taken away.  We hope you’ll tune in and join us, and in the meantime, that you’ll find this rerun with Katie Watson as relevant and informative as we think it remains.  Talk to you soon.

[Music]

Jonathan Amarillo: Hello, everyone, and welcome to CBA’s At the Bar, a podcast where young and youngish lawyers have unscripted conversations with our guests about legal news, events, topic stories, and whatever else strikes our fancy.  I’m your host Jon Amarillo of Taft Stettinius & Hollister and co-hosting the pod with me today is Chastidy Burns with the Cook County Public Defender’s Office.  Hi, Chastidy.

Chastidy Burns: Hi.

Jonathan Amarillo: Chastidy, we are joined today by Katherine Watson, associate professor of Medical Social Sciences, Medical Education and Obstetrics and Gynecology at Northwestern University.  I’m really proud of myself for getting all that out in one sentence.  Professor Watson is also a lawyer who held a federal clerkship and practice public interest law before joining Northwestern’s faculty and completing fellowships in clinical, medical ethics and medical humanities.  She currently teaches law, ethics and humanities to medical students at Northwestern.  Katie, welcome At The Bar.

Katie Watson: It’s a pleasure to be here.  Thank you.

Jonathan Amarillo: Katie, we’re here to talk about abortion generally and your new book specifically entitled Scarlet:  A good Hawthorne reference, the ethics, law and politics of ordinary abortion.  The book has been appropriately well reviewed as “revolutionary” by The New York Times.  It really seems very well timed.  Abortion is always, or at least almost always, a topic at the forefront of our country’s culture wars, and the current seating of new Supreme Court Justice Brett Kavanaugh brought it even more to the four opponents of abortion.  Hope he’ll be the deciding vote on that Court to either overturn or undermine the Court’s abortion jurisprudence.  And by the same token, those in the pro-choice movement fear that Justice Kavanaugh will do exactly that.  Quick disclaimer for our audience.  For purposes of this episode, I at least, will be using the terms pro-choice and pro-life to describe the opposing sides of this debate.  I know from reading Katie’s book that nomenclature is really loaded with meaning, but I think it’s familiar to our audience and just useful shorthand.  Otherwise, I’ll be stumbling over my words.

Katie Watson: Fair enough.

Jonathan Amarillo: Katie, having said all that, after reading your book, there’s so much to take away from it.  But really, the thing, the broad point that I took away from it was that abortion is just a prism for so many other social issues, women’s issues, of course, that’s I think how I always thought of it, but civil rights generally, racial tensions, religion, socioeconomic stratification, pretty much everything.  Can you take us there?  I had no idea.

Katie Watson: Well, that’s what I find so interesting about the topic.  I think it’s easy to think of, like, “Oh, you write and think about abortion these days.  That’s a niche topic.  That’s a small topic, big in the news, but it’s a singular topic.”  And when you spend time with it, what you realize is exactly what you just noted.  It’s incredible depth and how it does become a prism.  It becomes almost a Rorschach Test for so many views.  And if you’re someone who’s interested in culture, in politics, in power, in relationships, in social change, in meaning over time, it is incredibly a rich area of study that I am never bored and I never feel like it’s a narrow area.  And it’s also one of incredible impact on individuals’ lives.  The decision or the experience of whether to become a parent or not, whether to continue a pregnancy or not, our sexual relationships, our family arrangements, it has incredible direct impact, and then it has incredible cultural import and political import.

(00:05:00)

So as both an academic, as a lawyer, and as just a citizen of the United States, I can’t think of a richer topic practically to study.

Jonathan Amarillo: Yeah, it seems to have a little bit of everything.  What originally brought you to this topic?

Katie Watson: That’s so interesting.  I have always been drawn to the relationship between bodies and the state.  What can the government tell you you must do or you may not do with your body?  And so, when I was in law school at NYU, I had a fellowship in civil liberties.  And there were, I think, five at the time.  It was called a Hays Fellowship, but they were in certain subject areas.  And I had applied for the one in what we could then call reproductive freedom because I was always very interested I was just drawn to it.

And I think as a woman, I just grew up — I’m from Indiana.  I didn’t grow up in a particularly radical environment.  But I think as a woman, it was always just very clear to me that if the government can force me to bear a child against my will, I’m living in a slave state.  I just was always very clear that that would be a commandeering of my own body.  And even before I had words for it, it was just something that was just obvious, that can’t be right, that I understood it from what I now understand to be a perspective of pluralism.  I was raised Catholic.  I was very clear about religious differences.  But when you’re a civil libertarian, part of your perspective exactly is tolerance of religious differences and protecting people’s ability to raise their families and govern their own bodies and lives in accord with their religious lights and beliefs and figuring out the nuanced places in which there are limitations to that.  And of course, it’s not infinite so I think I approached it just at a gut level as an issue of sovereignty, individual sovereignty in relationship to the government and an issue of religious freedom and pluralism.

My interest began just as a person and then when I was in law school, applying for this fellowship felt really right, and I was very fortunate to get it.  And then when I did that fellowship, I did two internships as part of it in my third year of law school, and one was at the Center for Constitutional Rights, where I got to contribute to a brief in the Casey case, the 1992 case that ended up affirming row but everyone was afraid would reverse row and my section of the brief was helping to research the burdens on poor women of the waiting period restrictions, the travel, and the other economic costs.  I call it the abortion tax, but the additional cost of the hotel and childcare and missing work and all this stuff so I was already steeped in that what we now call reproductive justice perspective of like, “Hey, this affects different people differently and we need to attend to that.”

And then my other internship was at Montefiore Hospital in the Bronx working with a clinical ethicist and working in the obstetrics unit on an issue of fear of sex selection abortion, where some of the — there was just concern about different immigrant groups and it really became a form of discrimination and obstetrics care potentially about anticipation or stereotypes.  And so, I was just steeped in it from the beginning and then my career paths to be in different places.  And it’s interesting that as a bioethicist is when I really returned to the issue deeply.

Chastidy Burns: Katie, you mentioned that as a woman you got very interested in reproductive rights and studying that.  And it’s funny because that’s also how I think about abortion and abortion issues as a woman, this is how I feel about it.  But then we also have it.  Jon is also very interested in the topic and he thought that your book was riveting.  How do you frame the conversation about abortion and you emphasize the importance of everyone talking about it and feeling comfortable with talking about it and relating to it?  How do you frame that from a man’s perspective and make men feel more comfortable with talking about it or people who don’t feel like they have a direct connection to the issue?

Katie Watson: Well, there’s two things Chastidy.  I think that’s a great question.  One is no woman ever got pregnant by herself, all right?  Unless it’s an anonymous sperm donor from a sperm bank.  And biologically, I guess it’s true she can get pregnant by herself, but there’s not a partner there.  With respect to that, let’s bracket that.  The vast majority of experiences is people having sex and they either intend to become pregnant or they don’t, or they’re open to pregnancy.  I mean, there’s plenty of people out there who are that third whoops baby who were not intended and were absolutely welcome.  We don’t want to say unintended is the same as unwanted, but people are having sex and they’re either open to pregnancy or they’re not.  And there are two parties in that relationship and yet somehow, it’s become a women’s issue.  Well, why is it a women’s issue?  We’re all lawyers.  Because legally it is and must remain a woman’s issue.  It’s an individual right for exactly that bodily integrity route that you and I perhaps just intuitively were like, “I’m sorry, what?  Someone’s going to tell me whether I…Okay.”

(00:10:04)

If that’s not my moral vision?  You know, if I think it’s morally acceptable to terminate a pregnancy, my body will be used in the service of the morals of strangers?  I’m sorry, help me understand this, but if we were ever to be in that position, it would be because we slept with a man, right?  And so, he’s a partner and if we have that baby, he will have an emotional role or not.  He will have a social role or not.  He’ll have an economic role or not.  His life will be altered in some way, even if he has to live with it that he’s the guy who walked away and disappeared.  And we will be in what would have been intended as a one-night stand will be a lifetime coparenting relationship.

We’ve taken this legal idea that it’s a woman’s right, which is absolutely accurate, and then imported it into our social conversation, although it does not represent the majority experience sexually, but also the number is very high.  It’s in the high 80s.  I’m going to say 86% of all abortion patients are dating or married to the man with whom they became pregnant.  We go from abortion as a women’s issue to abortion as an issue of sex.  And that’s a way often people try to paint it as like, “Oh, it’s these promiscuous women, or it’s just about sex.”  People don’t have sex and it’s like, “Well, A, they do, it turns out.  But B, that sex is very often taking place in the context of a romantic relationship, married or unmarried and dating.”

And so, if we think about abortion as a natural consequence of dating and marriage, people who are married, the average birth rate in the US right now about 1.8, 1.9 children per couple.  Let’s just round up to two.  Married people are having sex more than twice in the course of their marriage, typically, right?  Married people are having sex for the same reason unmarried people are having sex, right?

Jonathan Amarillo: Are they?  I don’t know.  I always hear the opposite.

Katie Watson: Well, fingers crossed, let’s not generalize too much, right?

Jonathan Amarillo: Okay.

Katie Watson: But like, intimacy, pleasure, right?  This idea that unmarried and married sex are so radically different, they might be morally or religiously, but people have sex, it turns out, and so unintended pregnancies are always going to be an issue of couples and of families of saying, can we afford another child?  Is this the right spacing?  How does this work for our family unit, right?  Fifty nine percent of women having abortions already have children, one or more.  And so, this idea that it’s like, they didn’t know they were going to get pregnant.  How could this happen, right?  This is familiar these are family decisions.

To your first question about men coming in the conversation, I think we need to the public toxicity has led to this private silence.  And so, what we do is import these legal frameworks or this political toxic debate and just substitute it for dinner table conversation.  I think bringing men in as opening and being like, hey, this affects you too.  You don’t get to make the final decision.

Jonathan Amarillo: Right.

Katie Watson: Most people are making these decisions in partnership with each other and the same thing that made you be on the same page as a couple shared values, shared visions of the future, shared goals, and your empathy for one another will probably lead you to a shared decision.  You might be at loggerheads, you might not.  There’s always couples who don’t agree, and she’s going to make the final decision.  But most couples are doing this in consultation.  And even when the patient’s report they’re not in a romantic relationship, 60 some percent report that the man with whom they became pregnant knows about it and high percent supports it.  Even when it was the proverbial one-night stand, a lot of them are still filling their partner in.

Jonathan Amarillo: And that’s one thing that really surprised me and really changed my thinking after reading your book, which was, I’ll just put it on the table.  I’m pro-choice.

Katie Watson: Sure.

Jonathan Amarillo: I always have been as long as I can remember.  But I always thought that men having a strong opinion on this issue was somehow invading the space of women because it was a women’s issue and the men who had strong opinions were pro-life, and they were trying to impose their morals and their opinions on the woman.  I always thought it was really my place to take a backseat on the issue and support it, but not vocally, not openly.  One of the things that really stuck out from your book was a conversation that you had with a young woman, and she described how she’d been on several dates, and the men that she had been on the dates with had said something to the effect of and I’m paraphrasing here, but I fully support your right to choose.  If we were to have sex and you were to get pregnant, do what you got to do.

(00:15:07)

Katie Watson: And she worked in abortion research, so it would come up when they’d say, what do you do?

Jonathan Amarillo: That’s right.

Katie Watson: And then she would say her job, and they’d be like, “Oh, yeah, it’s a woman’s body.  It’s her right to choose.”

Jonathan Amarillo: Right.  And I always thought of that as something you would say as an ally, but that’s not quite how she felt about it, right?

Katie Watson: Yeah, it was funny.  She said to me, and I know it’s just what they’ve been trained to say, but it just bugs me and I just felt officially old because I thought like, oh, they sound really feminist or whatever.  They’re being supportive.  And I said, “Well, what about it bothers you?”  And she’s like, she couldn’t articulate.  And she’s just, “It’s just…”  And that’s when she said that’s what they’ve been trained to say.  Like she’s trying to be sympathetic.  And I was like, “No, don’t.  Let’s not let this go.  What is it bothering you?  What is it?”  And when we finally dug and dug and dug, she finally was able to use this word, and I thought it was so profound to me.  She said, it’s lonely.  And I said, “Well, okay, back up.  Do you think that if you got accidentally pregnant and you chose to have the baby, when they were saying, I completely support your decisions those were your decisions.”

If you chose to have a baby, they would completely support you?  And she just burst out laughing so loudly in this coffee shop.  She’s like, no, of course they wouldn’t.  They would be freaked out.  They’re assuming I’m going to have an abortion.  And so when they say, it’s your body, it’s your choice, it’s all up to you.  What she heard was a message of abandonment.  Like, I’ll enjoy sex, I’ll enjoy our relationship, and we’re young, and maybe it’ll go forward and maybe it won’t.  We don’t know what the future holds, but if we were to become accidentally pregnant, I know you’ll take care of it, and I won’t get in your way.  And that was an experience of abandonment.  And in my book, I kind of talk about what would be the other thing to say that didn’t feel like abandonment.  And I’ve sort of experimented with talking about moral responsibility.  It also left her with the moral responsibility for the decision.

Jonathan Amarillo: Right.

Katie Watson: It’s not just the money or go alone.  It’s the idea of what would actual partnership look like?  And it would be both moral and practical.  What if they said something like, yes, abortion can sometimes be the right thing to do, and I would be there for you in whatever way you wanted if we were found ourselves in that situation, right?  For some women would say, we don’t actually know each other well, I want to go with my best friend.  Thank you very much.  Others would be like, yeah, let’s do this.  We got in this together let’s get out of it together. In the same way that the modern gender equality spirit of contraception of like let’s have a conversation about this and what would be the best contraception, and let’s share expenses or parenting of we chose to have a baby together, we’re going to try to split parenting and the less fun parts of diaper changes and staying up late together.  Why are we going back on our traditional gender norms with abortion?

Jonathan Amarillo: Right.

Katie Watson: It’s because it’s uncomfortable and politically messy so isn’t that easy and we were laughing that they get to sound really like liberal and progressive and down with this message.  And if you could actually pregnant, well, good luck and that’s not the intention.

Jonathan Amarillo: Well, we get the benefit of most double standards.  I don’t believe that’s a fact.

Katie Watson: When you say you take the back seat, Jon, I want to say hop in front, but in the passenger side.

Jonathan Amarillo: Yeah.

Katie Watson: I love the Women’s March.  I’ve been to the Women’s March.  I love it.  What if it was the couple’s march?  What if it was the family march?  A lot of people did bring their partners and friends, but I have a feeling that if men felt like abortion was their issue on the pro-choice side with the same passion that those who seem to be driving the pro-life debate feel, we wouldn’t have to be so worried about the political and legal access to abortion.

Jonathan Amarillo: Since we’re talking about the man’s perspective and other perspectives, one of the things that impressed me so much about your book was what a deep dive you did in the pro-choice movement and the different motivations people on that side of the debate have or those sides of the debate.

Katie Watson: Yeah, such a spectrum.

Jonathan Amarillo: There are so many more nuances to this than I thought.  Your pro-choice, when you were exploring those other issues, and I can tell really making an effort to understand where they were coming from on many different levels, what surprised you the most when you were doing that research?

Katie Watson: I think just the nuance in the spectrum so pro-choice is a legal position that says you think people should have a choice.  Abortion should be legal.  It says nothing about whether you think people ought to have abortions ever, never, sometimes what circumstance, who, and we have this legal conversation that’s a short hand exchange.  I’m pro-choice.  Your pro-choice.  Great.  We think we know something about each other, and we doat some basic level, but then the nuance that follows.  Do you think it’s moral or ethical for people to have abortions?

(00:20:00)

Who, in what circumstance?  When in a pregnancy, people have such do — whether it’s ethical for you versus other people, and we don’t go further in those conversations.  And writing this book helped me go further in those conversations and hear more and say, “Great, you’re pro-choice.  What do you think about abortion?”  And that would just open this whole other conversation that was not a conversation people were often having, and people would surprise me with their answers.  And so there’s an obstetrician I know who has fought for her patients and for women in general to have access to abortion.  But then when I opened that, it was almost like she was whispering.  She was like, I don’t know if abortion is ethical.  I mean, I’ve had a kid.  It changes your view and I’m not here to tell anyone else what to do and I would have never guessed in a thousand years.

And similarly, I know a physician who described himself as pro-life and is very active in the pro-life movement, very strongly.  And for years I really respect him and for years I made an assumption about him, and it was only like eight years after discussing this with him that I said, “Do you want abortion to be illegal?  And he said, “Oh, no.  Then we’d be back to the era of septic wards, and those are the hospital wards where women who had unsafe abortions had life threatening infections.”  He goes, “No, I don’t want abortion to be illegal.  I want it to be unnecessary.”  And I was like, “Gosh, I’m an idiot.  We’ve been talking about your perspective on the morality of abortion, and I made an assumption about your perspective on the legality of abortion.”

For me, I draw this little grid in class about abortion, constitutional right, yes, or no?  We’ve got a constitutional conversation, abortion ethical act, yes, or no?  And it’s not that our ethics don’t influence our constitution analysis or vice versa, but the clarity of which conversation we’re having kind of exposes the nuance of people who are anti-abortion and pro-choice which turns out my colleague I didn’t understand that and my other acquaintance who is pro-choice, but a little more anti-abortion than I realized and I just think that’s so interesting, right?

If you’re against if you think abortion is immoral, I respect that point of view.  If you want to, then make it illegal this is a very different kind of conversation either about constitutional law or about legislation and morality laws, the same way that we might have a conversation about gay rights and say, “Well, if you think same sex partnerships are immoral because of your religious or secular moral reasoning, that’s different than talking about constitutional rights and the equal protection clause, right?”  And I think an abortion because our public conversation, the law has so imposed itself on this conversation and I guess not inappropriately because people have taken their conflicts to the courts and what are you going to do?

But we’ve allowed that to substitute again for this private conversation.  For me, opening up that nuance, it sounds perverse to say it was really fun, but I’m really drawn to spaces of silence where it’s like, gosh, this is affecting almost everybody who has had heterosexual sex, let me be clear, because same sex partners do not get accidentally pregnant unless they’re sleeping with some of the opposite sex.  But anyone who’s had heterosexual intercourse at some levels had to kind of think about this issue, and yet we’re not talking about it.  And to me, that cultural tension of so many people are in that space where they would have to at least think about it, if not experience it.  And no one’s talking about it, or very few people are talking about it in a robust, honest, thoughtful way.  It’s just like, wow, what’s going on there?

Chastidy Burns: I think that’s really interesting too.  And it’s what comes after the I’m pro-choice but part is where you really get to know somebody, right?  I’m pro-choice, but I wouldn’t do it.  You know what I mean?

Katie Watson: Right.

Chastidy Burns: When you think about the woman feeling lonely because the boyfriend says, your body, your choice, I think of detachment as well because those are just political talking points.  They’re not really getting at how you really feel about it or him trying to get at how you really feel about it.  You know what I mean?  And I wonder if that comes from something else you talked about in your book, which is that we don’t really talk about the ordinary nature of abortions.  We talk about these big scary ones that go wrong or people or the late term abortions that scare everyone.  We’re not talking about how common they are and how it is an issue that affects more women than we think.

Katie Watson: Yeah.  The subtitle of my book is the Ethics, Law, and Politics of Ordinary Abortion and what I mean by ordinary abortion, we do this in bioethics, too.  It’s the neon light cases.  It’s extreme cases, and they’re fascinating and they’re educational.  But supporters of abortion access, we’re going to tell you about twelve-year olds and rape victims and people with horrific fetal anomalies.  And opponents of abortion are going to talk about what they would think of as abortion abuse use of like, someone who had more than one or has it later in a pregnancy or particular procedure they object to.

(00:25:06)

And but even when those cases are all real, but when you add them up, collectively, they represent about roughly five percent of all abortions.  And I’m interested in the 95% in the middle that are for reasons like I can’t afford to have a baby, this would be dramatically disruptive of my current caretaking responsibilities, my education, my career, I’m having trouble with my partner or husband.  All these, like “ordinary reasons” which tell you about that individual’s perspective on the morality of abortion, right?  If you think that the moral value of the embryo is extraordinarily high, only the most dramatic reasons would justify ending the life of that embryo.  And I use the term embryo because 80% of all pregnancy terminations happen in the weeks in which just developmentally, if you’re an anatomist, it’s an embryo, not a fetus.

Even when we talk about the moral status of the fetus, we’re talking about 20% of abortions.  Is that a distinction with a difference?  That’s up to you.  But when I say the word fetus, I have a very different image than I do when I say the word embryo, right?  And so that’s not an accident that the word fetus has become the placeholder that’s second trimester, 80% of them are happening in the first trimester 88% in the first trimester.  And then the embryo week is week eleven.  We make a turn there anatomically where all the organs are in place.  That’s what marks that for an anatomist.

That’s telling you that those people think that the moral status of the embryo that they are carrying is such that they are entitled to make that decision for those set of reasons and I just find that fascinating.  In bioethics, the revolution in medical ethics is going from the paternalistic doctor knows best, doctor knows everything to the view that patients are moral agents that take medical facts and filter them through their own personal values, religion, life, circumstance, and then make the best medical decision for them.  And it may or may not be what the physician recommended.  And I’m trained as a bioethicist to respect patients as moral agents and say, “Well, here’s the spectrum within which you get to work.”  And there’s some things that are just out of that spectrum and the physicians and hospitals aren’t going to do.  But within that spectrum, you see all sorts of different choices in the same circumstances for all different reasons, right?

I don’t know why over age 45, one in three American women have had an abortion.  Under age 45, if the 2014 statistics hold for women 15 to 44, one in four are expected to have an abortion.  I don’t know why I wouldn’t, as a bioethicist respect the moral reasoning, respect their moral agency of the women who end those pregnancies in the same way that I would respect the women who have unintended unwanted pregnancies who really don’t want to have a baby, but continue them because of their moral beliefs.

Jonathan Amarillo: That raises an excellent point.  Unfortunately, we have to take a quick break, but we’ll come right back to it.

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And we’re back.  Katie, when we left off, we were talking about patients as moral agents and how complicated the decision making can be.

Katie Watson: And may I just interrupt to say it can be very simple for some people.  And what I think is so interesting is a study that asked people if their abortion decision was very easy, somewhat easy, neither easy nor difficult, somewhat difficult, very difficult.  And that people were spread all over the spectrum.  And that’s another thing that you never hear anyone say.

Jonathan Amarillo: Right.

Katie Watson: My abortion decision was very simple.

(00:30:00)

Jonathan Amarilio: Well because they think that almost makes them sound callous and — 

Katie Watson: Callous, to be casual — 

Chastidy Burns: Yeah so that’s another — 

Katie Watson: It’s supposed to be really hard that abortion — we’ve all heard that abortion is always a very difficult decision and it’s followed usually by, “But it has to be a legal right,” and this idea of difficulty is almost a way of acknowledging, oh some people think this is terrible so I really struggled, and some people really struggle and other people are very clear, “I don’t think the embryo has a moral status that prevents me from doing this, I’m very clear on my values, I know who I am, I know what’s right for me,” and nobody loves it. Who wants to have any medical procedure they don’t need to have? Even just at a base level but that it’s not always very difficult so I’m sorry to interrupt but I learned that — from my research and I just thought that was like, why is this news to me?

Chastidy Burns: I like that you talked about that in your book and about how there are positive aspects of someone’s life that are enhanced from actually making that decision and we don’t talk about that.

Katie Watson: Right.

Chastidy Burns: It seems inappropriate.

Katie Watson: I too charge of my life and I took care of me, I mean whatever their takeaway is. I am open to all versions of those experiences. I want patients to tell me what their experience was versus a master plot that tells them what ought to be and if they had a different experience they should just be quiet and shameful that they didn’t have the right experience.

Jon Amarilio: Right so that conversation reminds me of one of the stories that’s in your book which is of a doctor who worked at two clinics and she goes to work one day and there’s a patient that the nurses tell her is being particularly difficult, crying, seems distraught. She goes in and she recognizes the woman who’s sitting on the gurney because that woman was a regular protester, an anti-abortion protester at the other clinic that the doctor worked at and the woman told the doctor that she believes that abortion is murder and that it should be illegal but because it’s not and she’s kind of in a pinch and she’s different than all those other women, right? Who get abortions, she’s going to go ahead and go through with it and then sometime later not too long later, after the abortion’s performed the doctor sees that woman back on the protest line at the other clinic. I think your reaction in the book was much more emotionally mature and considered than mine was when I first heard that.

Katie Watson: Yeah?

Jon Amarilio: But —  

Katie Watson: What was your reaction?

Jon Amarilio: Outraged, hypocrisy you know, how can she separate herself from her own actions like that? Why does she consider herself to be different than all those other women who get it like, why is she making excuses for herself and not putting herself in the shoes of all those other women?

Katie Watson: Yeah.

Jon Amarilio: And I’ve — you know my jaw hit the floor when I heard that story. I mean I probably shouldn’t have but it did.

Katie Watson: No, we don’t talk about it, yeah.

Jon Amarilio: Yeah, how did you absorb that story?

Katie Watson: Well I had so I never shared an anecdote in the book that I hadn’t heard more than once and I don’t mean the same individuals but like to me that story really surprised me and I had heard it several years ago and then I started hearing from other physicians who provide abortions about stories about treating protesters and I thought, “Oh this is a thing,” I started to asking people that and they’re like, “Oh yes, some point in your career you end up treating someone,” and it’s very — it’s a common experience for physicians who provide abortions to have some patience. Start the appointment by saying, “It’s important for me to tell you, I am completely pro-life. This is, abortion is murder.” However, my daughter is a very good girl who made one mistake and she has a very bright future and didn’t — you know, give the speech about how we’re different but this is an exception but we are pro-life and to really express a lot of stigma and negative feelings about the doctor in the clinic except I’m there asking for your medical services so that’s very common and then the specific story of protesters is one I heard over and over. So, I went back to this individual who had told me the story some years before and I explained I was writing a book and could I interview her formally to use that as a representative. So I was shocked when she told me and then later, in years later, I was like, “Oh this is like a thing,” because it’s really hard to have a baby that you don’t want to have. It just is and some people do it and I applaud their consistency and their courage so for this protester, so my reaction, I did ask her did she feel like she wanted to out this woman on the picket line and I used the analogy of like, the gay lover of a politician who votes against gay rights to like, do you want to be like, “Oh come on, of all the people,” and at what I just so admired was this physician looked at me like I was crazy. Do you know she would never breach confidentiality and I said, “Well weren’t you thinking like, ‘oh, you hypocrite’,” and she said, “No, I was thinking, you look like you recovered beautifully, good for safe legal abortion,” and I just thought, gosh that’s a soul of a physician. It’s just like I’m just looking out for your health and we’re all living our lives 

(00:35:00)

and whatever but what I learned, psychologists have a construct called fundamental attribution error and when I learned about that it really helped me not be so angry. You feel like oh hypocrisy is one analysis and I’m not saying it’s not legitimate but fundamental attribution error is the idea that and sadly many of us have, that other people’s failings are issues of character but our failings are issues of circumstance so if Chastidy is late for a meeting, I’m at me like, Chastidy is unorganized, Chastidy is disrespectful, Chastidy is fill in the blank. If I’m late for our meeting it’s because you know what my kid was having a problem and being a parent is important and I’m juggling a lot of balls and I’m doing the best I can, right?

Jonathan Amarilio: So it’s a lack of —  

Chastidy Burns: Yeah.

Katie Watson: Yeah, it’s like I — so it’s easy to say if you oppose abortion and you’ve had an idea that people have abortions are like X and then you find yourself wanting and needing and choosing to have an abortion, I would like to think you would have an epiphany you know, that like “Oh gosh,” you know people, everyone in this waiting room might have something in common with me but people look to reconcile that and they say, “My daughter made a mistake you know it’s like you know, whatever other kids are on drugs because they’re terrible, my kid made a mistake, they ran with the wrong crowd, it’s not their character, right? So my daughter made a mistake or my situation is unique. I still have maintained that the other women in the waiting room are fill in the blank, promiscuous or callous or this is that,” you know I really struggled about this and so for this woman, I don’t know this woman you know, but I couldn’t — what the doctor said is the reason she gave like, “I can’t have a baby with this man, not in this situation where my job is,” you know she was not married to this man, “the situation, my job is, this, that, this,” and when the doctor used the term she said, “You know I see a lot of pulled together, white ladies having reasons that are not anywhere near as dramatic or dire as some of my other patients but they’re thinking they’re the exception how like you know,” she thought you know, if any would — I mean this, sure this woman can have a baby, anyone could have almost anyone could and the reason she were giving was giving were the most ordinary reasons and I don’t say that disparagingly, I think women are allowed to have, “ordinary reasons” these are common reasons but she — from the doctor’s perspective there was nothing that distinguished this person from anyone else in the waiting room and the same doctor said, at least once a day at these clinics she would have somebody grab her hand from the gurney and say, doctor some version of, “I need you to know I’m not like the other women out there,”

Jonathan Amarilio: Yeah.

Katie Watson: And it’s really interesting for a doctor how do you respond? You don’t want to like that’s the construct that’s getting them through the day or do you say like, you know how do you say nicely you are like all the other — but in a nice way like —  

Jonathan Amarilio: Or just take your hand off me sociopath.

Katie Watson: Right.

Jonathan Amarilio: Yeah.

Katie Watson: And the physicians there are just so empathic they’re like yeah whatever gets you through your day but it’s an interesting issue for them about inserting any kind of politics or group analysis into what’s your individual experience.

Chastidy Burns: I want to get your perspective on some of these other struggles that these doctors are having in this debate so, so many states allow doctors and healthcare providers to actually refuse to do abortions. There might be 45 of them at this point, how do we reconcile the doctors’ perceived right to not do the procedure versus the woman’s right to have it?

Katie Watson: Sure so in the United States you actually don’t have an affirmative right to any healthcare except you have a right to seek abortion and contraception. It’s so interesting that the only healthcare that you have a constitutional right to get is the most embattled. You have no constitutional right to your diabetes treatment or your knee repair you know, it’s so interesting. But we still live in a world of negative rights versus positive rights and so if no doctor, no one ever wanted to practice medicine I mean you know what I mean? Like you don’t have an entitlement to any doctor’s care and there’s still a contractual relationship and it’s interesting as a constitutional right you would think we have a higher responsibility but we can’t make people do things unless you want to make it a condition of licensure. We can make them — we can hope say you have to not commit malpractice, you commit make all these other things so Chastidy, I, as a civil libertarian actually am very supportive of the issue of conscience rights and physicians, individual physicians entitlement to practice medicine consistent with their conscience. What I am not supportive of is this issue of organizations, right? And I think we should look more closely at the issue of organizational or institutional conscience and so it’s one thing to say Dr. Chastidy, that’s not part of her practice.

(00:40:00)

Well first of all, we need transparency and disclosure because maybe that would affect whether I chose you as a physician. We need access within the institution, right? So, how are you going to get me to someone who takes — does do those procedures in a way that is not radically disruptive or disrespectful to me in the same way that I came to you as an expert on X but something that’s usually in that area of expertise you don’t do. In any other we have like smooth referral systems — team care, right? Versus it’s a secret that I don’t do that and then when they bring it up, I’ll be really weird about it and not say anything and block you from getting it, right? That’s completely different so we should distinguish between individual conscience which I think we always want to protect and have room for and collective responsibility for care provision which we also want to make sure we get and do and we’re falling down on number two and confusing it with number one.

Chastidy Burns: So Katie, what category would you put other restrictions that are being placed on abortion such as waiting periods or mandated counseling or having to notify one parent or both parents of getting an abortion.

Katie Watson: In my book I talk about those, many of those is Trojan horse regulations because they take the Trojan horses like medical ethics or patient safety or patient care and that’s what the horse, the shape of the horse, but inside is an anti-abortion agenda and a restrictive agenda that says, well, if we can’t make abortion illegal we’ll make access impossible, right? So waiting periods are a phenomenally disrespectful expression and I use in the book I talk about structural stigma, how to stigmatize a procedure and punish women for having it because they create an abortion tax. It increases the cost for someone to have to go to a clinic and some of them require you to be in person for that too and then go back home when you may have driven for hours and have to take time off work and figure out child care and do all this stuff and get on a hotel in another town so it creates this abortion tax but it also is so insulting and when I talk about stigma, it presumes that you have not thought about whether you want to end this pregnancy or not.

Jonathan Amarilio: It’s paternalistic.

Katie Watson: Yeah, the moment you showed up at the clinic as if you just threw a dart and you were deciding you know, you have to make a phone call. Are you going for prenatal care or abortion care? And that idea that when you showed up it says, if you showed up for prenatal care and they gave you a speech about how much it costs to go to college and to raise the baby and how much child care hurts and that you’re fourteen times more likely to die in childbirth than an abortion so go home for three days and think about this becoming a mother thing and make sure you’re serious and then come back to us like we would not stand for that for a second, right? But so with the abortion that idea’s like you gone against this, your natural role as a mother. You were destined to be a mother and that this is this horrible disruption of that plan, this biological or God’s plan or whatever you want to say and you haven’t even thought about it. When the informed consent discussion is about the medical procedure of abortion, right? But the thought process is do I want to become a mother or not? Do I want to have this baby? And that thought process has most likely occurred before you made that phone call, right? And if you seem conflicted or not sure about your decision, what that law implies is that the physician and the counselors would just heard you through in a hurry and not send you home and say like gosh like anybody for any other medical procedure who seemed unsure, any other physician would say, “It sounds like we need to re-schedule this, it sounds like you’re not ready to decide today, right? So it’s insulting to the physicians and to the women. So, that’s just one of the examples you gave but all those regulations are just meant to stigmatize and abortion, punish women and reduce access.

Jonathan Amarilio: It’s also a legislative lie, right? That’s kind of Trojan horse legislation, we all know what it is.

Katie Watson: Yeah.

Jonathan Amarilio: No one’s being fooled by it and they’re creating all of this false legislative history about the intent of the legislature to essentially set up the lawsuit.

Katie Watson: Well I think, yes certainly, we’re all lawyers, we know how to set up a lawsuit and do it through legislative you know, intent in history but —  

Jonathan Amarilio: It’s Astroturf.

Katie Watson: It’s Astroturf but when you say no one’s fooled by it I’m not 100% sure that’s true and I think there’s sort of a — I’m going to be very general here but like a middle group that would say like, “Abortion should be legal but I don’t like it and so to have women jump through some hoops to make sure they’re serious, maybe that’s good, maybe that’s a good halfway thing, informed consent who’s against that? Think before an important decision, who’s against that,” you know it’s easy or even the ASC regulations that got struck down in 

(00:45:00)

ambulatory surgical care regulations asking all abortion clinics to look like ASCs even though that’s medically — utterly unnecessary. Yeah, many hospitals which is medically necessary but then like if you send this like, what to make them sure it’s safe? Who’s against that? You do have to dig a little deeper and because we’re not talking about it why should you know anything about abortions medicine? You know, like if you never but we’re somehow I don’t know anything about the medicine of so many things and I work in a medical school because I’ve never had that procedure I don’t, my family member hasn’t but somehow we’re supposed to be a 327 million person medical committee in the United States to have an opinion about what’s the safety level of this or the informed consent needs of that, for abortion care, right? So, I just want to push back. I think they are effective for a certain group of who feels maybe conflicted of like, why should women really have that much freedom to just walk up and ask for an abortion as if it was like, that’s anybody’s experience or thought process.

Chastidy Burns: And at surface level thinking that you want you may not like abortion but you’re kind of pro-choice but you want them to jump through some hoops, you do need to take it deeper, right? And then once you get to well the waiting period where a woman has to come one day and then come back two days later becomes the socio-economic issue then those people might have a different opinion while I don’t want to hurt people who can’t afford it for that reason or I don’t want this racially disparate and that’s a different issue.

Katie Watson: Well so we haven’t touched on the fact that 49% of all abortion patients have incomes that fall below the poverty — federal poverty level which is very low number and — 

Jonathan Amarilio: Like $1,100 or something, is that right?

Katie Watson: Yeah, very low and 26% so like another quarter have incomes that fall between 100 to 200% and some of those because abortion patients cluster in a younger age group but that’s not all, is poor people, right? Lack of access to contraception, lack of sexual power to say no to insist on contraception, all sorts of things so for people who are more disturbed by abortion in the second trimester than the first trimester or feel like the later it happens the worse it is, the best thing you could do is get rid of all these restrictions because they push abortion later into pregnancy as Chastidy just said, someone who has to then raise the money to go do this. The second thing you would do if you really cared and philosophers called this a gradualist approach, just moral intuition that as an embryo grows, its moral status increases and that abortion at 20 weeks is worse than abortion at two weeks, right? A lot of people have that sort of moral intuition. They can’t articulate once a week that it changes but they just feel like later is worse, right?

Jonathan Amarilio: It seems more human — 

Katie Watson: Yeah, sure, sure. It seems more like a baby, right? They’re not wrong so the second thing you do is make sure Medicaid covers abortion care and make sure private insurance covers abortion care. Why are people raising money for this, right? But so many states have regulated laws banning like saying insurance can’t cover this or saying our Medicaid won’t cover this, right? 16 states approximately have Medicaid coverage now and Illinois is one of them. States are now — some states are moving to ban insurance discrimination like they’re saying if private insurance say if you cover maternity care and contraception, you need to cover abortion care in the same proportion or however you do it because why are people having to scrape together even if you’re wealthy to say you’re paying out of pockets stigmatizes this in a different way but then Chastidy, as you point out like if we have 49% of people under the poverty level raising $50 for a procedure and as you as, a the gestational age increases the procedure cost increases so people might get together whatever their fee is $200, find the weakest they’ve passed a week marker when asked $500. Okay now add a waiting period. Now you got to go stay in a hotel, now you have to pay someone, now I’m going to lose —  

Jonathan Amarilio: It’s amongst income for them.

Katie Watson: Yeah, I’m going to lose two days at Burger King, I could risk losing my job. Okay now I have to wait until it’s whatever, I have a break from my job. Okay, now we’re three weeks later it cost more or whatever it is, right? It’s a now I need anesthesia and I have to bring a friend to drive me, who in my life could come with me to this other town and kick it for a couple days, so we’re now going later and later. The goal is to trap that woman into delivering a baby she didn’t want to have and for some people that’s the outcome, right? So, these are all just barriers to access but they disproportionately impact women who are poor, they disproportionately impact women of color, who have a — and poor women have a much higher rate of unintended pregnancy going back to that power and access to contraceptives issue, right? So, when we think about reproductive justice and look at this larger image and this larger picture over the right to not have children but also the right to have children and the right to parent the children you have, focusing on this right not to have children this is impacting poor women a lot more than it’s impacting rich women. Rich women are still in very much impacted by it but it’s a just a different level.

Jonathan Amarilio: And we’re going to have to take a break right there.

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Jonathan Amarilio: So Katie, we’ve been talking a lot about the restrictions on abortion and it seems like every time I pick up a newspaper I’m reading about new attempts across the country to either impose new forms of restrictions through legislation or bring up test case after test case after test case to try to see if the Supreme Court will change its mind about Roe and Casey despite the fact that’s been the law of the land for nearly half a century now. So, there’s this feeling that the right to choose is under siege — 

Katie Watson: Yeah.

Jonathan Amarilio: Consequently.

Katie Watson: Yeah, accurately so.

Jonathan Amarilio: Is there any good news?

Katie Watson: Yeah well, I think that there is. I think when Roe and Casey felt more secure although all these new restrictions were coming after Casey, it was easier for people to be complacent unless they had extreme you know, strong views on the issue one way or the other they may have been active but there was a lot of people who stay in the middle who were just like, maybe I’m glad it’s legal but it’s like a non-issue and isn’t that the point of winning constitutional rights is like now you can move on with your life, you shouldn’t have to just be fighting to defend them all the time. I understand that but the threat of the fear and the real possibility of an attack on Roe or gutting or reversal of Roe has led states to do what you described is the bans and the things to try to have the test cases although it’s very important to say abortion is still legal in all 50 states. You can’t just pass the statute and there’s constitutional rate but some states have now gone affirmative to say, “Well okay, if Roe were to go down what will our state lobby and our state law be and our state law will be supportive of women’s rights to choose,” so for example, I think it’s amazing that the Iowa Supreme Court in 2018, there was a 72-hour waiting period that was challenged on the basis of the State Constitution. They didn’t even bring up any federal claims so it couldn’t become a test case to go up and Iowa Supreme Court in 2018, Planned Parenthood versus Reynolds found a fundamental right to abortion in the Iowa Constitution, meaning it’s subjected to strict scrutiny. None of this undue burden stuff and just a couple months ago in Kansas, Kansas, Kansas passed a ban on DNEs which is a procedure I won’t get into but is the majority of second trimester procedures said you can’t do that anymore. You have to do things that are more dangerous for women and same strategy only challenged under the Kansas state constitution in April. The Kansas Supreme Court found a fundamental right to abortion in the Kansas state constitution. 61 decision said that this part of life and liberty and natural rights. Kansas has Declaration of Independence language and uses the term natural rights I mean, it’s just so state constitutions are amazing so we’ve got two new state fundamental rights. We have got new legislation in Illinois has a Reproductive Health Act, our home state and New York. We heard a lot about that. The basically codifier version of Roe so if Roe goes down tonight, tomorrow morning the women in New York and in Illinois wake up with the same laws and then even in Illinois we got rid of our Medicaid discrimination two years ago and we got rid of our private insurance discrimination. We are part of that this year, part of that trend. I just want to point out right now Title 10 is in the news and so that is the federal grants for Family Planning and the Trump administration have done — has made modifications but as a medical ethicist I will say are wildly unethical to —  

Jonathan Amarilio: You’re not suggesting the Trump administration would do anything unethical.

Katie Watson: I will in this area. I’m going to just limit my comments and say this time they have.

Jonathan Amarilio: Wow, okay, really going out on limb there but all right.

Katie Watson: Right but I just want to point out, I hope that those are overturned in court but Illinois, Washington, Vermont and Maryland the governors 

(00:55:00)

and legislatures of those states have pledged the same dollar amount to all the Planned Parenthoods and Title 10 clinics to say you can practice medicine without committing malpractice like you have been and we will supply the money for poor women and families to have their contraceptive care so we are seeing some states step up and when jurists are confronted with the question they come to the same conclusion that the Roe court came to, which is fascinating. So, the bad news is I’m worried we are going to go back to a pre-civil war status of slave states and free states except it’s going to be about women and not people of African descent and it’s going to be about this issue of abortion. I’m worried about that.

Jonathan Amarilio: Well we’ve all read Freakonomics, we know what that’s going to do to the economy so that’s their problem.

Katie Watson: Yeah so I don’t like this Patchwork system.

Jonathan Amarilio: Yeah.

Katie Watson: I think that Roe should in case should – well Roe should be a firm not Casey. I think Roe should be affirmed it was correctly decided and I think it should be affirmed and because I have lived through Casey where everyone was so sure I was going to be reversed it was modified in ways that really hurt women. I really think it’s absolutely possible that we will hold together and I think it should because it should be federal if it goes down I think congress should fix it and make federal legislation that gets rid you know, makes these state bans not permissible. There’s other solutions. It has to be a federal right. We cannot be Balkanized like this but the good news is, the impression that oh when the ropes are off states want to ban abortion that’s not at all uniform and we’re going to see more of the affirmative protections in the next year I think.

Jonathan Amarilio: Excellent. We’ll end things on that brighter note and we’re going to go straight to legal fiction.

Katie Watson: Great.

Jonathan Amarilio: The rules are pretty simple, Chastidy and well, I haven’t done my research on it but Chastidy was kind enough to do the research for me on this one.

Chastidy Burns: Public defenders, right?

Jonathan Amarilio: Yeah.

Chastidy Burns: Always prepared.

Katie Watson: Always prepared, don’t matter how many cases they will be there.

Jonathan Amarilio: We’ve done a little research, found one law on the books that is true but probably shouldn’t be. Made another one up, we are going to quiz you and each other to see which is real and which is not if you can distinguish strange legal fact from fiction. Chastidy, you want to leave this off?

Chastidy Burns: Sure, okay. Rule number one is, it is illegal to wear a fake mustache that causes laughter in church in Alabama?

Jonathan Amarilio: If it’s legal?

Chastidy Burns: Illegal.

Jonathan Amarilio: Illegal.

Katie Watson: Illegal and to wear a fake mustache that causes laughter.

Chastidy Burns: In church.

Katie Watson: In church.

Chastidy Burns: In Alabama.

Katie Watson: Okay.

Chastidy Burns: Second one is, in Texas, it is illegal to erect a greenhouse within 500 feet of a tobacco farm.

Katie Watson: I’m going with mustache because who cares about greenhouses and tobacco farms? I don’t think there is any relationship — well I think it is actually a law because I don’t think anyone cares about the distance between greenhouses and tobacco farms. I don’t know anything about tobacco farms but that one doesn’t make any sense.

Chastidy Burns: You are correct.

Katie Watson: I shouldn’t be but agriculturally it doesn’t make sense.

Chastidy Burns: Yeah, because I made that up.

Katie Watson: The mustache doesn’t make any sense either but then somebody obviously laughed at church in this —  

Chastidy Burns: So obviously a problem happened.

Katie Watson: Happened to be in the state legislature and here we all are.

Chastidy Burns: Exactly.

Katie Watson: That’s yeah. Welcome to the state legislatures.

Jonathan Amarilio: All right, I’m only going ask you Katie, this one because Chastidy did the research for me so I’m not going to ask her to you know, distinguish what she already knows.

Katie Watson: Okay.

Jonathan Amarilio: All right first option.

Katie Watson: All right.

Jonathan Amarilio: It is illegal in Arkansas for public school children to use a pencil that is not a number two pencil. Second option, honking ones car horn at a sandwich shop after 9:00 p.m. is illegal in Arkansas. So, honking after nine or using anything but a number two pencil if you’re a public school kid.

Katie Watson: I want it to be the honking at a sandwich shop but I actually think maybe it’s the school regulation.

Jonathan Amarilio: Why you think?

Katie Watson: Just a profound drive to standardization but it also sounds like a poll tax or a way to get kids ask somebody for number two pencils but the honking at the sandwich shop could be the same thing, if somebody honk to the sandwich shop and the sandwich shop owner knew someone in the state legislature I just don’t have the same greenhouse rationale but I going to go with number two.

Jonathan Amarilio: Yeah well you’re betting $500 today.

Katie Watson: I should have kept the same rationale if somebody knew somebody and you can’t honk at my sandwich shop anymore.

Jonathan Amarilio: I mean usually, usually, the stupider the law, the more true it is in my experience.

Katie Watson: Yeah, yeah. I love this game can we —  

Jonathan Amarilio: Look, look $500,

Katie Watson: This is like a word a day from a dictionary thing. Would you just email me every morning one of this – 

Jonathan Amarilio: Wait look Mandel betted like didn’t even bet $500 so that’s like Ted Williams level. That’s something to be proud of.

Katie Watson: Thanks, I will be proud of that. Thank you.

Jonathan Amarilio: And that’s going to be our show for today. I want to thank our guest Professor Katie Watson of Northwestern for this nuance stand insightful conversation. Her book is Scarlet A, The Ethics, Law and Politics of Ordinary Abortions. It’s a great read. Truly eye opening and a must read for anyone who’s interested in this subject.

(01:00:00)

I also want to thank everyone here at the CBA who makes this mission running including my co-host Chastidy Burns, our executive producer Jen Byrne, Ricardo Isles and sound and everyone at the Legal Legal Talk Network family.

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