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S3E05: Reproductive Justice, Reproductive Rights, and the Supreme Court with Professor of Law Melissa Murray
21 Plays3 years ago
Co-Dean Kimberly Mutcherson is joined by Melissa Murray, Frederick I. & Grace Stokes Professor of Law at NYU and Faculty Director at the Birnbaum Women’s Leadership Network. Professor Murray discusses the reproductive justice movement, its relationship to reproductive rights, and the makeup of the U.S. Supreme Court. She also shares some thoughts on SB 8, the controversial anti-abortion law in Texas.
Professor Murray is one of the hosts of the Strict Scrutiny Podcast, a podcast by three women about the Supreme Court and the legal culture that surrounds it.
The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally-known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Production Manager: Margaret McCarthy
Series Producer: Nate Nakao
Editor: Nate Nakao
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Transcript
SB8 and Recent Legal Developments
00:00:00
Speaker
I'm Kim Mutcherson, co-dean of Rutgers Law School in Camden, and I'm here to offer a very unusual episode update. The podcast episode you're about to hear involves an interview with Professor Melissa Murray, who is the Frederick I. and Grace Stokes Professor of Law and Faculty Director of the Birnbaum Women's Leadership Network at NYU Law School. In this episode, among other topics, we discuss SB8, the controversial Texas law that essentially bans abortion for most people in the state.
00:00:28
Speaker
Since Professor Murray and I spoke, the moving pieces of litigation challenging SB8 have continued to shift. Most recently, on Friday, October 22, the Supreme Court granted a request by the Biden administration and a group of abortion providers in Texas to bypass proceedings in the Court of Appeals
00:00:46
Speaker
and bring two issues to the Supreme Court, which they set for oral argument on November 1. In the case brought by the administration, the court will consider whether the federal government can sue in federal court to block enforcement of SB8. In the case brought by the providers,
00:01:01
Speaker
The court will consider the problematic private enforcement structure created by the law, which deputizes citizens to police the medical procedures of their neighbors. Despite this expedited schedule to review these procedural issues, the court has failed to stay enforcement of the law, which has been wreaking havoc on the provision of abortions in Texas since it went into effect on September 1st.
00:01:24
Speaker
As she did when the court failed to stay this law when first asked to do so, Justice Sotomayor dissented from the court's most recent decision. This time, she was the only justice to do so. She wrote, quote, there are women in Texas who became pregnant on or around the day that SBA took effect. As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care,
00:01:51
Speaker
they will be unable to do so anywhere in their home state. Those with sufficient resources may spend thousands of dollars in multiple days anxiously seeking care from out-of-state providers so overwhelmed with Texas patients that they cannot adequately serve their own communities. Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people's day-to-day lives,
00:02:18
Speaker
may be forced to carry to term against their wishes or resort to dangerous methods of self-help. None of this is seriously in dispute. These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this court now. Because of the court's failure to act today, that relief, if it comes, will be too late for many."
Introducing Melissa Murray
00:02:41
Speaker
To keep apprised of the continuing saga of SB8, I urge you to follow the Strict Scrutiny podcast on Twitter and listen to their up-to-the-minute commentary on the ongoing litigation.
00:02:53
Speaker
I am deeply honored to have as my guest today, Professor Melissa Murray from NYU's Law School, who many of you will also recognize from television and from her amazing podcast that she does with Kate Shaw and Leah Litman, Strix Fruit Me. So thank you so much for being here, Melissa. Thank you for having me. It's great to be here with you. Russ' prosody from when you came on our podcast. This is cross-fertilization once again. Exactly.
00:03:22
Speaker
perfect. So I want to start with you the same way I start with everybody else who is kind enough to join us on the podcast, which is with your origin story.
Melissa Murray's Path to Law
00:03:31
Speaker
So given all of the things that you could have done with your life, you decided first to go to law school and then to become a legal academic. Can you trace that past for me? I was born by the river in a little tent.
00:03:45
Speaker
I'm the daughter of Jamaican immigrants. No one in my family had been to law school. No one was a lawyer. My mother was a nurse, and she's very clear-eyed about that. When she was growing up in the 1950s, the only option, certainly in Jamaica,
00:04:00
Speaker
for women if they even got the opportunity to complete their high school education was to be a teacher or a nurse. And so she picked being a nurse instead of being a teacher and wound up coming to the United States on a special visa because there was a shortage of nurses. But she was really adamant that I have the full range of possibilities open to me in the way that her mother, who had not completed high school and really could not read beyond the first grade level.
00:04:29
Speaker
was absolutely adamant that all five of her daughters complete high school and go on to have some kind of profession, even if it was bounded by the expectations of their society. But, you know, my mother wanted me to have wide open vistas. I mean, I still remember in 1981 when Sandra Day O'Connor was appointed to the court, my mother telling me like, girls can be lawyers and judges. I did not know I wanted to be a lawyer. I suspected that I wanted to be a lawyer because everyone in my hometown who was a person of consequence was either a doctor or a lawyer.
00:04:59
Speaker
And so I was like, you know, I want to be a person of consequence at some point. So I thought maybe I'd be a lawyer, but I didn't know any lawyers until my father passed away when I was 17. And he passed away without a will. And so my mother was sort of thrown into this maelstrom of intestacy and trying to figure out and sort out his estate without the benefit of a will. And so she relied on this probate lawyer to sort of get her through it.
00:05:27
Speaker
He just had such command over everything. And our family was falling apart. My mother was devastated by my father's death, as was I. And he was just this calm in the center of all of it. And I aspired to that kind of control. I mean, when you lose a parent that young, I think you aspire to a kind of control over your life anyway. But this was a guy who just sort of
00:05:51
Speaker
seemed to know what was going on and what was going to happen next. And more than anything, I wanted to know what was going to happen next. And so I was like, yes, that's what I would like to do.
00:06:01
Speaker
And so I went to college, wound up going to law school, thought I was going to be a civil rights lawyer. I really wanted to work at the NAACP Legal Defense Fund. The problem, of course, is that I was funding law school independently. So I had to work at law firms during the summer while splitting my summer with these public interest outfits. And so that first summer, I worked for a very fancy New York law firm, which will go unnamed.
00:06:27
Speaker
But while I was there, I just had this epiphany. I think I was called by someone else's name one time too many and asked to do something like collect coffee or bring things to other people one time too many. And I just went back to my office and slammed a book down at my desk and just decided right then and there no one was going to tell me
00:06:50
Speaker
what to do in my job ever again. And there aren't a lot of jobs for new lawyers where no one is telling you what to do or no one's not telling you what to do. And so I looked around and realized the people who are happiest with themselves, certainly at my law school, were the professors who just really seemed to be the cat that got the cream, like they were having the best time. And I was like, no one is telling them what to do.
00:07:14
Speaker
And so I decided then and there that is the life for me. And so a completely serendipitous route into the academy. And I think it's not unlike the route that many women of color academics have. We don't plan on this. We don't go to law school with this in mind.
00:07:28
Speaker
Somehow we get there and then the question is is how to get through it how to enter how to keep going how to get tenure How to be successful because there there really aren't a lot of models for us and there certainly weren't when I was a law student Yeah, absolutely. And I actually I've had I've had in your Adeo on the podcast and mirror is just amazing and the work that she's done and unequal profession has been really tremendous and I think has really sort of opened lots of folks eyes to women of color and
00:07:57
Speaker
in the legal academy. And, you know, like you, another, I'm also an accidental law professor, very much an accidental dean, which is its own fancy story. Same, also. Yeah, it happens sometimes. But I'm curious for you, you know, I think for a lot of us, there had to be a person or a couple of people who finally put us on that path to ending up in academia and sort of, you know, made
00:08:27
Speaker
transparent things that were otherwise opaque. Was there someone or were there a few people like that for you? Sure. So this is a great opportunity. I've never actually said thank you to her in a public setting for this. But my second year of law school, Laura Kalman, who is not a law professor per se, she actually teaches at the University of California, Santa Barbara, and she's a legal historian. She came to Yale to visit for a term
00:08:56
Speaker
And she was doing research on a book that she was writing about Yale in the 1960s and sort of like the academic debates that eventually spilled over from the law school into the general ether. And she put an announcement out. She needed a research assistant. And I was always hustling, looking for ways to make money in law school.
00:09:14
Speaker
I was like, I can be her research assistant. That sounds great. So I remember being in corporations and like applying for this job in the middle of class. And she wrote back immediately and we sort of struck up this friendship online and she hired me. I worked for her for that year and it was amazing. I mean, she was just amazing. She was like, no law professor I'd ever met. She was enormously encouraging. And over time I came to confide in her like, you know,
00:09:43
Speaker
think I want to be a law professor. And when I told one of my other professors that I was thinking about academia, he told me, you have to be really smart to be a law professor, which I immediately took as not you. Like, that's not enough to do this.
00:09:59
Speaker
She never said anything like that. She's like, of course you're going to be a law professor. Why wouldn't you be a law professor? And was just so endlessly encouraging. And at every step of the way in trying to get into the academy, she was right there advocating for me. When I went to look for a fellowship, she was right there advocating. And she was enormous. The other person who also, I think, was
00:10:23
Speaker
so tremendous in terms of her mentorship was Justice Sonia Sotomayor and my other judge Stepan Underhill in the District of Connecticut who literally there was nothing I could ask for that was too over the top. They had my back in every possible way and made sure I knew it. And then the last person or persons rather were
00:10:45
Speaker
Carol Sanger and Ariella Dubler at Columbia, where I was a fellow for two years. And Ariella was just fantastic. She was still untenured herself, but she really shepherded me through the whole process, was a mentor and a reference for me. And when I think about she was doing this while she was trying to get tenure, it is just so extraordinary to me, the depth of that generosity. And she was fantastic. And so was Carol. And so I really benefited from
00:11:14
Speaker
these women. And one thing I wanted to just underscore to your listeners is I'm a black woman. None of these women were black women. And if I had waited to find mentors who looked like me, I would still be in New Haven waiting. There was no one there when I was there who looked like me. And so I really had to find people with whom I had this kind of organic connection. And I actually think it made
00:11:41
Speaker
the relationship deeper and more productive on both sides, like truly reciprocal because we were drawn to each other because of shared interests as opposed to some sort of, you know, superficial identity. And this is not to slam looking for mentors who look like you, because I think it can be a very good way to begin the process. But it is to say, do not shut the door.
00:12:02
Speaker
on those who don't necessarily share certain aspects of your identity because they can be really terrific and effective mentors for you. Absolutely, absolutely. And it sounds a lot like, and I don't always draw this distinction, but I know other folks do. You need mentors, but you also need people who are your champions, right? So people who, when you're not in the room, they're still saying fantastic things about you and creating opportunities for you.
Exploring Reproductive Justice
00:12:27
Speaker
Yeah, I think that's exactly right.
00:12:29
Speaker
It's the kind of mentorship that I aspire to perform for my students, for my mentees, to truly be not just a mentor, but like an advocate, because that's what you need, especially for people who are on the outside to some degree. Yeah, absolutely.
00:12:49
Speaker
So I'm going to switch gears and move us into talking about the interesting legal landscape in which we're living, particularly for folks like you and me who do reproductive justice work. So before I start talking about Britney Spears and SB-8 and all these other fun things,
00:13:10
Speaker
Can you give folks a quick definition of what reproductive justice is? Because I think a lot of people hear that phrase and they think it's just another phrase that means reproductive rights. Or more specifically, abortion. Yes. I think it's a very crabbed vision of both reproductive rights and reproductive justice to think of it exclusively as about the right to an abortion. I think that is part of it, part of both rubrics. But abortion does not exhaust either vision.
00:13:40
Speaker
Reproductive rights, I think, came into being as a concept in the 1970s, certainly with Roe, but also because of Griswold v. Connecticut and Eisenstadt v. Baird, which made clear that contraception was also something that was in the realm of individual choice. For a very long time, I think the mainstream reproductive rights movement really focused on the question of abortion and contraception because that's what the court had dealt with. And they did so in terms that were really dictated by the court's decision.
00:14:10
Speaker
You know, this was a set of rights that was bounded by the logic of privacy because that's how the court had decided those cases. But it's really important to recognize that even before Roe, before Griswold, before Eisenstadt, people had been making claims for birth control, for abortion in registers that went beyond privacy. So, you know, there's a case in New York, Abramovitz versus Lefkowitz, which is a challenge to New York's restrictive abortion law.
00:14:37
Speaker
where feminist lawyers are arguing against this law in terms that are about equality and not just sex equality about race equality. They talk about the women of color who were disproportionately impacted. They're making class claims like it's poor women who are going to be shut out here.
00:14:55
Speaker
And so they are making all kinds of claims in both the register of privacy and the register of equal protection. And eventually the case gets mooted because they are so successful at agitating that the New York legislature repeals the law and liberalizes abortion access in that state. So it never actually gets to the US Supreme Court. There's another challenge in Connecticut, a believe versus Markle or women versus Connecticut.
00:15:21
Speaker
which also makes similar claims in both the registers of privacy and equality, that winds up not going to the court. It's ultimately Roe that gets there. And Roe is argued in a more limited fashion, focusing on privacy. And the court decides it in a more limited fashion, weighing, building on Griswold and deciding that on the right to privacy. And that basically sets the tenor
00:15:46
Speaker
of reproductive rights advocacy for a generation, like they're arguing on the terms that the court has laid out. And so you lose a lot of those class equality, sex equality, the race equality arguments. And because you're not arguing those registers, there are a lot of women who fall out. And so for a long time, there was a complaint that the mainstream reproductive rights movement was inhospitable to the needs of women of color, to the needs of poor women, disabled women.
00:16:12
Speaker
And reproductive justice, I think, comes up to kind of pick up that mantle and to really interrogate what does a vision of reproductive rights look like without these women who are marginalized? And so their goal is to integrate them. And I don't really think of it as a movement that comes up in the 1990s, because although that's when it is credited with coming up, but I just think it's,
00:16:35
Speaker
picking up where these earlier movements left off. They were always there. They'd been seated. They'd just been abandoned and allowed to go fallow.
00:16:43
Speaker
They're resurrected in the 1990s, and they're also resurrected alongside, I think, a more fulsome vision of what reproductive freedom looks like. And so on this account, they are again assailing the court, which has framed the logic of reproductive rights in negative terms, like restraint on the states from doing things to you as opposed to positive entitlements to certain things.
00:17:10
Speaker
The reproductive justice movement is not just about integrating different voices, but providing a different vision of what it looks like to have reproductive freedom. It is not just about avoiding parenthood, but affirmatively choosing parenthood and being able to have children, to raise families in conditions of safety and economic security. And so this is a movement that's about access to healthcare, access to safe neighborhoods, access
00:17:36
Speaker
to a range of different services. It is redistributivist in its ethic, I think, in a way that the reproductive rights movement, as originally conceived, wasn't. And so for that reason, I find the reproductive justice movement really exciting and interesting, and one that speaks to me in ways that I'm not sure the reproductive rights movement has always spoken. It's been very successful, and I think we are seeing now the integration of a lot of reproductive justice themes
00:18:02
Speaker
into the mainstream reproductive rights movement. I also think we're seeing the introduction and integration of reproductive justice themes into anti-choice movements as well, which is I think a really interesting, disappointing perhaps, but I think it speaks to the power of reproductive justice. Could you talk about that a little bit more? What are the ways in which you see RJ seeping into anti-choice work? So I think to the extent that reproductive rights framed the whole question as about
00:18:30
Speaker
access to abortion and about privacy, reproductive justice inserts in a more robust way this question of equality and along multiple dimensions, disability rights, sex equality, class equality, race equality, and they've been really successful in doing that. And I think those who are opposed to abortion rights and to contraception for that matter have seen how successful that integration has been. And so what we're seeing now is
00:18:58
Speaker
not simply an effort to justify restrictions on abortion and contraception in terms of women's health or the potentiality of life, but now in terms that sound in the register of racial justice. So I think it's really interesting in the week of last summer and or the summer before, excuse me, and the killing of George Floyd, there was a spate of anti-choice activism that argued, you know, if you care about black lives, if black lives matter,
00:19:27
Speaker
than unborn Black lives should matter. And so it wasn't new. It had been sort of coming up and percolating for about five or six years. But this idea that reproductive rights is really laced and shot through with issues of racial injustice has become much more prominent
00:19:47
Speaker
and part of the discussion in anti-choice circles. Absolutely. And I remember, I guess it was a few years ago where there was that billboard campaign where it was something like the most dangerous place. The most dangerous place for a black child. Yeah, which is very striking to have taken that position.
00:20:09
Speaker
I'm sorry. It is so selective,
Reproductive Justice in the Spotlight
00:20:11
Speaker
right? I mean, they are borrowing the interest in racial justice, but not marrying it to it, to the other efforts on the reproductive justice line of thinking. So yes, invoking racial injustice, but not then going further to say like, well, why is it that there are disproportionate rates of abortion within black communities? Is it because
00:20:34
Speaker
There are uneven employment prospects for Black women and Black men, rife with employment discrimination in some contexts. Is it the lack of economic security, the concern about a lack of childcare?
00:20:48
Speaker
on incredibly high rates of maternal mortality and infant mortality among these communities. Like, is that part of the story here as opposed to simply what appears to be kind of just a naked kind of blaming of black women for choosing to terminate a pregnancy? I mean, there are these background choices
00:21:09
Speaker
that shadow the whole question of choice. Absolutely. I always whenever I'm teaching, I teach a class called Bioethics, Babies and Babymaking. And one of the points that I make to students consistently is, you know, choice is always exercised within constraints. And in this country, those constraints are often tied to race and class and gender, you know, and all these other sorts of categories that we like to pretend don't really matter.
00:21:38
Speaker
Now that we have reproductive justice laid out in that really beautiful way from you, I want to talk about some of the things that have, I think, really brought reproductive justice to the fore, or at least potentially could have brought it to the fore over the last several months.
00:21:58
Speaker
One of those pieces really interestingly was Britney Spears and this sudden revelation as part of her conservatorship that her father was able to make decisions about her birth control, including a decision that she would not be able to remove an IUD and therefore couldn't become
00:22:20
Speaker
Pregnant and there was this sort of you know uproar and lots of circles at the idea that someone other than a woman herself would be able to make decisions about Her contraception and you know, my thought was where have you all been? Right we've been here for a while so the Britney Spears episode I think is really important because it makes clear to
00:22:49
Speaker
people who have not had their eye on this ball, that this is actually a very pernicious problem. It is one that affects the disabilities community disproportionately, the whole question of conservatorships. And it is not just a question of how someone with either mental or physical disabilities is cared for. It is about how they exercise certain aspects of their freedom, their autonomy.
00:23:15
Speaker
It's just a very stark reminder that there are often incredible constraints placed on those with disabilities. I think what struck so many people about Britney Spears is that she's white, she's wealthy, she's famous, and therefore you would expect that she would avoid the kinds of things that I think often befall people who are suffering from mental disabilities or mental illness or physical incapacity in some regard.
00:23:43
Speaker
It's great that that could be a spark to catalyze a conversation, but I hope the conversation doesn't end there. And I hope the conversation is one that isn't just prospective about what to do about conservatorship going forward, but also retrospective and thinking about all of the ways in which reproductive policy and coerced sterilization is very much a part of our history. And one of the reasons why Britney Spears seems so unusual is because
00:24:10
Speaker
Typically, the women who have been singled out for coercive sterilization have been women of color. Fannie Lou Hamer famously discussed the circumstances at Sunflower County Hospital in Mississippi where she lived. She went in to have a cyst removed, came out with a hysterectomy, did not know, was not told, was performed without her consent. And she said almost every black woman she knew who entered Sunflower County General Hospital left sterilized.
00:24:39
Speaker
The same time we're talking about Britney Spears, just a year ago, we had a whole spate of sterilizations of women who were in ICE custody. And that was talked about for maybe two days. And then Justice Ginsburg passed away. And ironically, we abandoned the story so we could focus on the death of Justice Ginsburg, who as a lawyer for the Women's Rights Project was litigating challenges to coercive sterilization policies in the South, policies that made
00:25:08
Speaker
receipt of public assistance dependent on getting your teenage daughter sterilized or the whole family would be off of public assistance and she litigated those and we literally as the media as a society dropped the ball on those ice sterilizations to talk about her legacy without ever understanding the irony of what we were doing. And you know one of the things that I think is
00:25:33
Speaker
deeply reflective of the moment that we're living in is both how much history people don't know and how focused too many Americans are on forgetting the history that we do know, right? So thinking, I mean, you talk about Fannie Lou Hamer and I think about the phrase Mississippi appendectomies, right? Exactly what you were describing. You go into the hospital for something and then you end up being sterilized and they don't even tell you.
00:26:01
Speaker
that this has happened. And we have story after story like that. And it really reflects part of what's important about reproductive justice, which is it's not just about not having babies, right? It's about how many women in this country over a series of centuries, frankly,
00:26:19
Speaker
have been told, you don't deserve to have babies, right? Whether it was white supremacy or, you know, discrimination against people with disabilities, like this whole sort of series of ways in which this country has controlled reproduction for certain populations for a really, really long time. Well, it's not just the policies that are explicitly about reproduction, like the coercive sterilization policies,
00:26:47
Speaker
that were endemic during the 1960s through public assistance, but also were very much a feature of the eugenics movement. Justice Thomas wants to talk about abortion and eugenics, but really what we should be talking about is eugenics and forced sterilization, because that really is the reproductive policy that eugenicists really were focused on.
00:27:08
Speaker
All of these things, we need to look at them across the whole suite of interventions that are happening. It's not simply that we are missing just the history of what's going on. We're missing the cultural