Criminalizing Motherhood and Reproductive Health with Dr. Michele Goodwin

Episode Notes

Transcript

Speaker 1:

Today’s guest on SideBar is Dr. Michelle Goodwin, professor of constitutional law and global health policy. At Georgetown Law,

Dr. Michelle Goodwin:

The Comstock Act banned contraception and abortifacient from going in the mail and going into mail carriers. It’s worth noting why that was this whole movement to criminalize abortion to police pregnancy in a certain type of way happens around the time of the Civil War. It is this concern that with black people being free in the United States, the United States is going to become overwhelmingly a brown or black and brown country. No longer white

Speaker 3:

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Speaker 1:

Welcome to SideBar discussions with local, state, and national experts about protecting our most critical individual and civil rights Co-hosts La Deans Jackie Gardina and Mitch Winick

Jackie Gardina:

Mitch. Since Dobbs was decided, we’ve gained a heightened awareness of the criminal laws surrounding the termination of pregnancies in Alabama. A doctor can face up to 99 years in prison if she performs an abortion in Lubbock, Texas. The city made it a criminal offense to transport another personal along local roads to obtain an abortion. A Texas prosecutor brought a murder indictment against a woman after she self-managed an abortion, and a woman in Ohio was charged with abuse of a corpse after she miscarried at home. But the criminalization of abortion isn’t a new post-ops phenomenon. Women have always faced punitive state laws around reproductive health in this country. Banning abortion is merely one piece of a much larger legal framework of the regulation of reproduction from access to contraception or abortion to policing how a woman conducts herself during pregnancy. These regulations all link back to a fundamental question one raised directly by a recent Alabama State Supreme Court case declaring frozen embryos as extra uterine children. That question is the idea that an embryo or fetus is a person with full constitutional rights from the moment of fertilization. These current cases have brought a complex set of legal, moral, and ethical questions into the headlines, and equally importantly, into the courts. Our guest today has been researching and writing about these important issues long before they became featured in the mainstream narrative

Mitch Winick:

Jackie. These questions also raise serious concerns about the constitutional citizenship of women in our country. They also put into question the government’s and the court’s right to regulate family rights, to access reproductive technologies such as in vitro fertilization. These are complicated issues that mix religion, law, science, healthcare, and public policy. But fortunately, as we do for many of these challenging issues, we’ve invited a guest with tremendous expertise on these topics to help us better understand these issues. Professor Michelle Bratcher Goodwin is the Linda d and Timothy J. O’Neill, professor of constitutional law and Global Health Policy at Georgetown Law. She’s the co-faculty director of the O’Neill Institute for National and Global Health Law. Dr. Goodwin is credited with helping to establish and shape the health law field. She’s an acclaimed bioethicist constitutional law scholar and prolific author. She directed the first a BA accredited health law program in the nation and established the first center focused on race and bioethics. She’s the author of six books, including the Award-Winning Book, policing, the Womb, invisible Women, and the Criminalization of Motherhood. Welcome to SideBar, Dr. Goodwin.

Dr. Michelle Goodwin:

Thank you very much for inviting me on your show,

Jackie Gardina:

Dr. Goodwin. In the introduction, I mentioned the Alabama case that made headlines when it declared the frozen embryos were children, but the Alabama court decision was not the first effort to enforce this idea of fetal personhood. At least four states have passed fetal personhood statutes, and I think at least 17 others have debated similar legislation in recent years. I’m not sure everyone appreciate what it means to declare a fetus a person with full constitutional rights. It isn’t just about whether a woman can access an abortion. Can you give our listeners a broad overview of what else these laws could affect?

Dr. Michelle Goodwin:

The movement towards fetal personhood is not something that is simply reflective of the Dobbs decision. Back during the era that was known for its war on drugs and its demonization of black women as being welfare queens there quietly built a fetal personhood movement that wasn’t based on laws that explicitly were meant to protect fetuses per se. Back in the 1980s and nineties, there were black women who were being arrested for child endangerment, but it was not with regard to five year olds, three year olds, 10 or 12 year olds. It was because these women sought prenatal care and during their visits with their medical providers, shared that they may have had a drink or that they had used cocaine during their pregnancy and they were being targeted. And we know this because in looking at cases where there were class action litigation, you see over and over again that white women at hospitals were being exempt from these kinds of policing policies or that the only time that white women would be included, you’d find information on their medical charts such as lives with negro boyfriend.

So the 1980s and nineties became a time in which there was this persistent, even if invisible to the mainstream policing of black women. In many ways they were invisible, but we saw them because the New York Times reported on them. The Wall Street Journal did the Washington Post, but I think it says something about the normalization. Over the centuries, the 1,617 hundreds, 18 hundreds were literally thousands, tens of thousands of advertisements for breeding winches. Well, what makes someone a 14-year-old breeding winch? Who do you have to be to be a breeding winch? And here, again, not hidden, not in some reckless kind of magazine, but regular daily newspapers on page three in classified ads for the breeding wenches and descriptors that are really horrific to the soul and to the mind. When you read how old these girls were or rather how young they were and some of these breeding wrenches being sold who already have children we know at 16 she knows how to breed because she’s been breeding since she was 13 years old, or these advertisements about the ones who were fortunate enough to escape, but whose owners advertised all around the country for their return.

Lisa is 16 escaped with her 2-year-old mulatto daughter Maria, things like that that were so normalized in the United States, and I think that that’s part of your question about this lingering legacy,

Mitch Winick:

Dr. Goodwin. One of the things that seems to have changed now is to move this back from just a categorization of women as property, which is clearly what that description was. But now to layer on top of this criminalization again, so criminalization of women’s reproductive healthcare, clearly disproportionate demographically, but criminalization across the board. Talk to us a little about that transition.

Dr. Michelle Goodwin:

What’s been rendered visible in the wake of Dobbs is just how prurient these state’s laws can be. Let’s start off with girls and women who would be criminally punished for violating state’s laws that ban abortion. But as we started off as well with the threat against in vitro fertilization and the creation of constitutional personhood and even embryos and fetuses, this means that non-viable cell groups, groups of cells, there are lawmakers that say these groups of cells that have no heart, have no lungs, have no kidneys, have no liver, have no determination of what they would develop into or not develop. There are lawmakers that now say that those clumps of cells have the same constitutional personhood and status and rights as a girl does, as a woman does. And that if those groups of cells are harmed somehow and it’s the fault of this girl or this woman, they can be criminally punished for having violated state’s laws.

It really is absurd that even with the backdrop that I’ve described before, we’ve never seen anything this grotesque imposed against the personhood of women, which is why it really gets down to questions a full citizenship of women and girls as that citizenship is being pitted against cells. In 2016, in a case called Whole Women’s Healthy Heller, the United States Supreme Court considered two Texas laws that were basically intended to infringe upon abortion rights. The Supreme Court struck those down, and I share this story because of a fact that the Supreme Court included in the case that fact is that a woman is 14 times more likely to die carrying a pregnancy to term than by having an abortion. What does this tell us? It tells us that even in its best day in the United States, a woman is far safer by having an abortion than having a pregnancy.

And this tells us two more things. The World Health Organization is compared an abortion, the safety of an abortion to a penicillin shot. We know it’s very safe. The reason why I share that is because there is this mythology that it’s the worst thing that a woman could possibly think of in terms of her health to terminate a pregnancy when in fact it is the opposite. On the other hand, it informs us about something else, which is about maternal mortality and maternal morbidity in the United States and the fact that the United States leads all other developing nations and also those that would be called Third World in terms of maternal mortality and morbidity. We’re about 55th in the world. It’s far more dangerous to have a pregnancy in the United States than it is even in Saudi Arabia, Bosnia, places that have been engulfed in war and where we know there have been human rights violations against women.

So I want to round out my answering of the question with just sharing that this kind of criminalization, this policing, this surveilling of women in their pregnancies, the pitting of embryos against women’s personhood really is an alarm bell for us to pay close attention to because we really are at the point we’re truly, and it’s not hyperbole to say that there is a need for international intervention where there are women in states that are deadly to be pregnant, that are also threatened with criminal punishment if they dare think about terminating a pregnancy, even though to try to be pregnant in those states itself could be a death penalty.

Jackie Gardina:

We are going to take a quick break to hear from our sponsors and when we return, we will continue our conversation with Dr. Michelle Goodwin.

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Jackie Gardina:

I want to follow up and really put a spotlight on something that you articulated in that answer. You bring it up in your article. If embryos and fetuses have rights, you articulate that this is a very complex medical, legal and ethical question that arise when an embryo is identified as a person. And you note that these personhood statutes primarily, if not exclusively burden women. We’ve seen this play out with states passing abortion bans with no exceptions even for the life of the mother. Do we have other examples in law where the life of one person has been deemed less worthy than the potential life of another person?

Dr. Michelle Goodwin:

No only exists vis-a-vis policing women and girls in pregnancy. In no other circumstance is their law. Lemme put it to you this way. There is no other space in contract law. An embryo may not engage in contract. A child may, there may be a child actor, for example, a child may inherit property. There is no trust in estates that recognizes an embryo. There’s no contract, there’s no property law, there’s no trust. In estates law, you can go through all areas traditionally of what is American law and trace it back to English common law, which we adopted and before that French law. And there is none. It is only this carve out that law should only be enforceable against a woman vis-a-vis an embryo or a fetus. No, not at all. And it is stunning that it is this imposed only on women. And let me give you an example of how harsh this is.

When there were fetal protection laws that emerged in the seventies and eighties, it was under a different lens. It was women who were very much concerned about domestic violence, which had just been taken as a norm in American law. Courts had famously said, just simply close the curtains and allow what happens in the home to be private. Fast forward with these fetal personhood laws, which were ways in which crafty feminists thought, well, here’s a way to get at domestic violence, that if a woman is beaten up while she is pregnant, then we can see this as a threat to the fetus, which says a lot in and of itself that women couldn’t get protection on their own. That the idea was in order to protect a pregnant woman, one had to cite the fetus again, saying how little in American imagination that we could appreciate women and their personhood.

Lawmakers at the time promised that these laws that were intended to go after men during domestic violence would never be used against pregnant women. Instead, what do we find? We find lawmakers now saying that, look, these laws that were very much designed about domestic violence, and we know this because of the legislative history now being weaponized against women, and I’ll give an example, be Beshu. She’s an immigrant from China living in Indiana. A few days before Christmas, several years ago, she attempted to kill herself by eating six packets of rat poison. Certainly no one would try to have an abortion by eating six packets of rat poison. She ate the poison, she shut her door. Friends came over when she didn’t answer her door, the friends broke in, they found her, they rushed her to a hospital. Later she was prosecuted for first degree murder and attempted fet aside the attempted fe aside because H, the hospital, the doctor’s, nurses did all they could to try to save her life and also to try to save the pregnancy.

And so there was a child that was born that survived for four days when prosecutors then attempted to prosecute her under first degree murder and attempted feticide. What was noticeable for me was that the prosecutor in question wanted more than 50 years of a sentence. He was in the news saying that babe shui really had to serve her time. And then when I began to look at how these fetal personhood laws had been enforced and domestic violence situations, well then you could really see that there was such limited regard for Bebe shui because there was a case that involved a woman who was stabbed multiple times in her abdomen, multiple, and her friends who were staying with her for protection of her had been stabbed too by her ex-boyfriend. Prosecutors sought three years in that case for the fetus. In another case that involved a bank robbery in Indiana, there was a bank teller who was shot twice in the abdomen, which killed both of the fetuses that were gestating there. Prosecutors sought five years for the fetuses and then here it is be Beshu in this urgent dire situation where she’s trying to kill herself, which is not illegal in the state of Indiana. And prosecutors wanted at least 40 to 45 years for her to serve. And I think that that tells us a lot about the intentionality these days about those laws.

Jackie Gardina:

Well, I just want to thank you for bringing actual people and stories into the conversation because I think it helps make it real for people that are listening when we have names and stories attached to what is otherwise kind of talked about in the abstract. So really appreciate you taking us there.

Mitch Winick:

Dr. Goodwood, like abortion fetal personhood is currently a state by state decision, but that could certainly change with federal legislation like the Life at Conception Act currently in the house or a Supreme Court decision in 2022, the Supreme Court declined to decide a fetal personhood case, but there are certain justices on the court who appear ready to entertain the concept. You follow these issues very closely. You previously mentioned comments by Justice Alito. I’m wondering if there have been other questions or statement made by the current justices that suggests fetal personhood is a viable argument in front of the current Supreme Court.

Dr. Michelle Goodwin:

It’s worth noting that in the Dobbs decision itself that Justice Clarence Thomas issued a concurring opinion, and in that concurring opinion, it was very broad. He thought that all areas of privacy, including contraceptive access, should be rethought by this case. We’ve recently had oral arguments in a case with regard to Mitrione, which is a drug that is used in the termination of a pregnancy. Right now about two thirds of pregnancy terminations in the United States come through the use of prescription medications. It was clear during oral arguments with Justice Thomas and also Justice Alito again that they are very much interested in continuing this line of argumentation about limiting abortion rights. One of the areas to flag was that the justices mentioned whether the Comstock Act should apply in these times. The Comstock Act is one that dates back to the late 18 hundreds after the abolition of slavery, and it’s worth noting there abortion was not always criminalized in the United States.

And of course in the Constitution, even in the reconstructed constitution, it was clear that personhood began at birth. The very first sentence of the 14th Amendment makes American citizens, those people that are born that said, in the aftermath of the Civil War, white supremacy still existed in this country. I mean, when you think about people practicing slavery, not just for a week or a month or a year, but years that flowed into decades. Decades that flowed into centuries. The idea that you had a civil war and a reconstructed constitution itself did not stop the idea that white supremacy was still something that could be a political lever. The Koc Act banned contraception and abortifacient from going in the mail and going into mail carriers. It’s worth noting why that was. It wasn’t that there was always some act dating back to the 16 hundreds that banned abortion, that banned abortion and contraception that didn’t happen.

This whole movement to criminalize abortion to police pregnancy in a certain type of way happens around the time of the Civil War. It is this concern that with black people being free in the United States, the United States is going to become overwhelmingly a brown or black and brown country, no longer white. And so that’s where we see Comstock and Comstock was a matter that was brought up in this case regarding Opry Stone, the alliance for Hippocratic Medicine that brought this case in Texas to try to remove Opry Stone from the marketplace. So yes, there are justices and there are members of Congress who would like to see a national ban.

Jackie Gardina:

We’re going to take another quick break to hear from our sponsors and when we return, we’ll continue our conversation with Dr. Michelle Goodwin.

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Jackie Gardina:

I just want to follow up on the argument that you’re referencing specifically about a comment that Amy Coney Barrett made where she was distinguishing between surgical abortion process where it was live tissue versus not live tissue that she made that distinction tell you that fetal personhood is part of her philosophy.

Dr. Michelle Goodwin:

So there are multiple ways in which we can dissect justice. Amy Coney Barrett’s contribution and oral arguments, and one of the matters that she flagged was this sort of distinction between what’s live tissue, what’s deceased tissue. If there is live tissue, then there is personhood if there isn’t live tissue that there isn’t Another way of framing Part of that oral argument and deceased tissue was also about whether the doctors who are opposed to performing abortion should be able to intervene or could be expected to intervene when there is no live tissue and that potentially that should not conflict what their moral or religious convictions. So there is a whole lot that one could dissect in the oral arguments vis-a-vis Justice Amy Coney Barrett.

Jackie Gardina:

So are there any cases that are working their way through the courts right now that would put this question squarely before the court?

Dr. Michelle Goodwin:

It’s very possible that a case that’s coming up that’s out of Idaho but also has relevance in the state of Texas and will have relevance for the entire country, and it’s a case that is about the Emergency Medical Treatment and Labor Act. After the Dobbs decision, president Biden conferred with all of his leadership, all of the secretaries across the board, and asked what could be done at a federal level in order to further ensure protections for pregnant women and girls in the United States as there had been lawmakers talking about criminalizing individuals traveling interstate as lawmakers had been talking about the ability to prosecute doctors in other states that perform abortions on residents who live in their states, all sorts of things that would conflict with traditional notions of federal law. Out of this came an articulation about the Emergency Medical Treatment and Labor Act as being a provision that could protect pregnant women and girls and people with the capacity for pregnancy who need to manage a miscarriage, meaning that it’s a miscarriage that is happening, their life is in danger if it’s not managed and that tala could be used in those circumstances or circumstances.

Further pregnancy means that it severely risks the health and the life of the pregnant person. Now, this would seem logical and when you think about it, the very law itself has and Labor Act embedded in it. So the first response was that Tala does not apply to pregnancy, which would be very strange considering the legislative debates and the actual title of the law having labor in it. This law has been challenged in terms of its application and the Supreme Court decided to take this case up even though the federal circuit, the ninth Circuit said, well, yes, it does apply. There’s significant concern here because this is also a Supreme Court that has shown that it may decide matters in outcome determinative ways, or it may be selective in how it hears a case. What does that mean? It means that this is a court that when it wants to will say that precedent doesn’t matter. We saw that in the Dobbs decision. This is a court that on one day we’ll say history and tradition matters and on the next day not, and it’s for that reason that there are people that say this is a court that may not be trustworthy. This is a court that may be selective and how it uses its methodology and rendering decisions.

Mitch Winick:

Dr. Goodwin, what does this mean for contraception in Burwell versus Hobby Lobby? The Supreme Court appeared to describe contraception in language that could easily place it in the same legal category as any steps taken to terminate a pregnancy. Are you concerned that the Supreme Court is moving towards, or perhaps it’s more accurate to say backwards to reinstating legal liability for contraception or any other methods of preventing fertilization?

Dr. Michelle Goodwin:

Burwell v Hobby Lobby was a chilling decision for a number of reasons, and recently an oral argument in the case involving the Alliance for Hippocratic Medicine, the Mifa Prestone case. It’s a decision in which the late Justice Ruth Bader Ginsburg wrote a searing descent. The Supreme Court allowed the conflation of contraception with abortion was a really important dissent. What it also showed was that the court was willing to be selective, so Justice Alito said, oh, we want to make sure that this doesn’t apply to the Jehovah’s Witnesses and blood transfusions. This doesn’t apply to other areas where there are other individuals in corporations that have closely held religious views with regard to prescriptions. It doesn’t apply to them. We will carve out law that we will gerrymander law in such ways that it specifically only applies against women’s full flourishing and their full personhood and full citizenship.

Jackie Gardina:

Dr. Goodwin, it’s been a challenging conversation and there is an amazing amount of directions that we could go and that I’d love to take you, but we do have a time limit and we try to leave our listeners with a little bit of hope. In your book, policing the Womb, you do provide a path forward. What can individuals do to be involved in elevating reproductive justice?

Dr. Michelle Goodwin:

This is a time in which we can think about a new reproductive new deal, kind of new bargain with our country, and in that space, think about all of the things that are necessary for really shaping reproductive equality in our nation. It shouldn’t stop just at abortion. In fact, reproductive justice really is about the recognition that individuals should be able to have access to sex education, to contraception, to meaningful reproductive healthcare, breast cancer screenings, ovarian cancer screenings, cervical cancer screenings, access to pregnancy termination, but access to prenatal and postnatal care. That is really essentially what reproductive justice is, and I would advocate for a reproductive justice 2.0. What are the healthy futures for the offspring that women have? Your children should be able to survive more than a week, a month after delivery. They should be able to thrive. They should be able to come into the space of being without the potential for infant morbidity.

If we think in intersectional ways about our nation, they should be able to have an education. They should be able to have access to healthy air, water parks, swimming pools, and if you think about criminal justice, and part of our conversation has been about policing women. Well, we know for certain communities of Americans, they get policed because of what they look like. They get policed because they look Latino latina. They get policed because they look black. They get policed because they are poor and white. Part of reproductive justice also has to be that your children can be able to flourish without the potential of being policed as well and being able to survive their childhoods. That’s a silver lining of thinking about what we can have as an inspired future. That’s what I think of

Jackie Gardina:

Dr. Goodwin, thank you so much for leaving us with that piece of hope. Thank you so much for joining us on SideBar.

Dr. Michelle Goodwin:

Thank you so much for having me.

Mitch Winick:

Thank you, Dr. Goodwin for being with us today on SideBar. As we had hoped, you’ve been able to articulate many of these challenging issues and you’ve certainly given us a lot to think about.

Jackie Gardina:

Mitch, we started this conversation, or I should say Dr. Goodwin started the conversation talking about women as property in the slave era, specifically about the reproductive capacity. If a woman who is a slave had children, it created more property and a more fulsome workforce for the slave holder. What is frightening to me is that some legislators have made comments that specifically link reproduction today to increasing the workforce. They argue that these laws are justified because we need a higher birth rate so that we can have available workers in the future. Randy Voss in Wisconsin, Tommy Tuberville in Alabama have both publicly made those statements, but they’re not alone. It is unsettling to me to have women tied so specifically to these kinds of societal economic factors because it seems to reduce women once again to the level of chattel

Mitch Winick:

Jackie. Let me pick up on this idea of how it’s being discussed now. Part of what Dr. Goodwin was talking about that alarmed me is the conflagration of contraception, women’s reproductive health and abortion into laws that are targeting women as potential criminals for addressing women’s reproductive health. I find that very alarming and it’s clearly the agenda of some of these state legislatures to go down this path. I believe that we all need to pay careful attention to the language being used, particularly with the language out of this current Supreme Court.

Jackie Gardina:

This conversation with Dr. Goodwin gave me so much to think about and I hope it does the same for our listeners. There’s a lot to unpack in everything she said, and I certainly encourage our listeners to listen to her podcast as well as seek out her books and her articles because they are absolutely essential reading to understand what’s happening today. Once again, I want to thank everyone who joined us today on SideBar and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

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Jackie Gardina:

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For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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