Note: This is a corrected version of the audio.
Following the rare leak of a draft majority opinion in the Supreme Court case Dobbs v. Jackson Women’s Health Organization, the prospect of partial or wholesale rollback of Roe v. Wade—and with it, the bodily autonomy of women and people who can become pregnant—now looms larger than ever in the United States. So in the wake of the leak that has everyone shook up, Rebecca sat back down with Ian Millhiser, a senior correspondent at Vox and Off-Kilter’s favorite court watcher for the inside scoop on the leak, what happens if Roe goes down, and how the Supreme Court has become, in his words, “one of the chief architects of America’s democratic decline.” And in the second half of the show, Rebecca talks again with Dr. Jamila Taylor, senior fellow and director of health care reform at The Century Foundation, to unpack why rolling back Roe would be a huge setback for women’s equality and economic justice; how out of step rolling back the clock on reproductive rights is with the will of the American people; what’s on deck in the states if Roe does go down; and the road ahead to fighting back.
Note: This is a corrected version of the audio.
[bright theme music]
REBECCA VALLAS (HOST): Welcome to Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by The Century Foundation. I’m Rebecca Vallas. Following the rare leak of a draft majority opinion in the Supreme Court case Dobbs v Jackson Women’s Health Organization, the prospect of partial or wholesale rollback of Roe v Wade—and with it, the bodily autonomy of women and people who can become pregnant—now looms larger than ever in the United States. As Treasury Secretary Janet Yellen testified recently before the U.S. Senate, the end of Roe v Wade would have not just far-ranging health and rights implications but, “very damaging effects on the economy as a whole.” Adding, “I believe that eliminating the right of women to make decisions about when and whether to have children would set women back decades.”
So, in the wake of the leak that has us all shaken up, I sat back down with Ian Millhiser, a senior correspondent at Vox.com and Off-Kilter’s favorite court watcher, for the inside scoop on the leak, what happens if Roe goes down, and how the Supreme Court has become, in his words, “one of the chief architects of America’s democratic decline.” And in the second half of the show, I talk again with Dr. Jamila Taylor, a fellow senior fellow and director of health care reform at The Century Foundation, to unpack why rolling back Roe would be a huge setback for women’s equality and economic justice, how out of step rolling back the clock on reproductive rights is with the will of the American people, what’s on deck in the states if Roe does go down, and the road ahead to fighting back. Let’s take a listen. [upbeat music break]
Ian, thank you so much for taking the time to come back on the show. And it’s really good to hear your voice as well. It’s been a minute since we got to catch up.
IAN MILLHISER: I know. It’s great to hear from you even though it’s not under the greatest of circumstances, I guess! [laughs]
VALLAS: It’s never under good circumstances when I ask you to do this show. And I feel some level of guilt about that, but then it is sort of a hazard of your trade.
MILLHISER: Yeah. No, it would be nice one of these days to come on and be like, yeah, you know, something good happened in the United States or maybe somewhere in the world. That would be nice.
VALLAS: Well, particularly when it comes to the Supreme Court, which is not exactly where we all look for good news these days. But the last time that I had you on the show was actually talking about this same topic. We talked most recently for Off-Kilter about Roe and Casey and their potential future after oral argument was heard in the Supreme Court in the Dobbs v Jackson Women’s Health Organization case. That’s why I asked you to come back, is ‘cause obviously, there’s been a little bit of news, some developments since you last came on the podcast. So, I feel like that’s the place to start is with the leaked majority opinion written by Justice Alito, which came to light last week. I wanna be clear before we get into anything—and I’m gonna be clear as many times as I can throughout this episode, so apologies for being a little bit of a broken record here—but the leaked opinion is not the court’s final word on this case. I repeat, not the final word on this case. That being said, obviously, it’s far from a good sign on what the court’s final word will be when we get that later this year. So, Ian, start us off with what was in that leaked opinion written by Justice Alito, for anyone living under a rock who may not have heard.
MILLHISER: Sure. I mean, the truth is, this is one of the least surprising news events. I mean, the fact that there was a leaked opinion was surprising. That is not something that I believe has ever happened before, but the content of the opinion was exactly what you would expect. The Republican Party has spent many decades campaigning on, we’re gonna take over the Supreme Court. Then we’re gonna overrule Roe v Wade. And they took over the Supreme Court, and now it appears they have the five votes they need to overrule Roe v Wade.
Alito’s opinion is a maximalist opinion. It says that states are free to do whatever they want in the abortion space. And by whatever they want, I mean, if a state wants to say that you can’t get an abortion, if you will literally die if you don’t get one, that’s fine. If a state wants to say that you can’t get an abortion, if you will be permanently disabled if you don’t get one, that’s fine. And under Alito’s opinion, it means that if a state wants to say that you can’t get an abortion if you have been raped and the pregnancy is a product of that rape, then that is also fine. The state can force someone to carry a child to term after they have been raped. So, it is a very expansive victory for the Republican Party. It is a victory that I think was telegraphed by the oral argument where there were…well, where there, there seemed to be five very clear votes to overrule Roe v Wade. And as you have said, this is just the draft opinion. We don’t yet know what the final majority opinion is going to look like, but I suspect it’s going to look a lot like the opinion that Alito circulated, because there are five very staunch Republicans on the Supreme Court. And Republicans really, really, really, really wanna overrule Roe v Wade.
VALLAS: Well, I don’t wanna get lost in too much of the speculation game around, oh, what could the leak mean? But it does feel worth reflecting a little bit on what it might mean, given that this is an incredibly rare event to see a leak like this, a leaked majority opinion, a leak of any kind from the Supreme Court. It appears not to be totally without precedent, but this isn’t something we see happen every day. Curious if you have a read. I’m not thinking here about like the security measures being taken at the court, more could there be significance in why it was leaked or potentially by whom? I’ve heard some speculation, and there’s a wide realm here of what people are speculating. Some that maybe it could’ve been Chief Justice Roberts, who had an interest in seeing this leaked to try to prevent this from becoming the final word of the court. He is someone who has sort of cast himself as the savior of the court and the one who tries to find some kind of split the decision, middle ground. We’ve seen that in health care, for example. But I’ve also heard folks say, oh, you know, maybe this was someone kind of junior who didn’t agree with it and thought, let’s burn the place down, right? I saw one of your initial tweets responding to the shock of the leak said something somewhat similar. I’m really curious if you have any level of read, and more importantly, whether there might be anything we could take away from that that could give us any sense of what the road ahead might be.
MILLHISER: So, yeah. So, I mean, I guess we really should be talking about the leaks plural at this point, because there was the initial Politico story that was based on the actual draft opinion that was leaked to them. But and we don’t know who was responsible for that leak. We don’t know which side it came from, if it came from the liberals or the conservatives. But since that leak, the conservative side has just, I mean, it seems like it’s been feeding information to anyone who would ask. You know, CNN reported that John Roberts initially, or Chief Justice Roberts, initially voted to uphold the Mississippi law at issue in the case, but not overrule Roe v Wade entirely. There was another leak to Politico today, which apparently came from conservative sources saying that not only that does Alito still have five votes for his opinion, but there hasn’t been a dissent circulated yet. Like, there hasn’t been an alternative opinion circulated yet.
So, I mean, apparently, the new rule now, I mean, the court has historically had very, very strict confidentiality rules. And the reason for that is less because of political opinions like decisions involving abortion policy, but for business opinions. You don’t want news of some decision the court is going to hand down to leak that would allow someone who has insider information to trade on that information and make billions of dollars on Wall Street. So, that’s why they have these strict confidentiality rules. I’ve never seen, like, I don’t believe there has ever been a draft opinion leaked to the press. And I’ve never seen this sort of frequency where apparently, you could just call up a justice now and get a download, or whoever the sources are and get a download of what’s going on. So, yeah, I mean, the court has abandoned one of its most longstanding norms.
And again, we don’t know who initially leaked the opinion, but we do know that there have been a lot of leaks coming from the conservative side. I mean, I can only speculate as to why. You know, maybe they think that, the theory that I’ve heard is that if Kavanaugh or Barrett were ever shaky—and I doubt that they were ever shaky, but if they are getting shaky—that they might be ashamed to switch their vote if everyone knows that they voted initially to overrule Roe.
But yeah, I mean, I feel like the leak is secondary to the fact that the court appears poised to overrule Roe v Wade. But it is interesting. I think it’s significant that whether because liberals are so disillusioned with the court that they see no reason to uphold its norms or because conservatives are so drunk on their own power that they see no reason to uphold its norms or some combination of the two, the court is just not functioning the way that it historically has functioned.
VALLAS: And that’s a big part of what we’re gonna get into in just a moment. It’s also really the thrust of a piece that you wrote soon after the leak came to be public. The piece you wrote was called The Case Against the Supreme Court of the United States. And you actually lay out a multipart argument that it is now one of the chief architects of America’s democratic decline. So, I wanna get into all of that.
But before we go there, for folks who are really kind of in this moment trying to get up to speed on how we got here. And we could do an entire episode on how we got here and the multi-decade Republican crusade to undo the Roe decision and the Casey decision, not through Democratic means, but through the court. We could spend hours, even more than just an episode, on that very story. But in terms of how we got here legally, how we got here from the perspective of the court, it’s not particularly surprising to folks who went to law school—which includes me as a recovering lawyer and you—that Roe might not be upheld if it were held up to scrutiny in a conservative court. In fact, I was thinking back to Con Law, which I took, I guess maybe 16, 17, 18 years ago when all of this was starting to become clear about the direction that things were headed vis-à-vis Roe and Casey, and I had memories of being taught that abortion rights needed to be codified in law to make sure that they last. Talk a little bit about how we got here and whether it’s fair to say that this is not a surprising outcome, given not just that it’s a conservative court, but actually how Roe was decided has never been the strongest in terms of Supreme Court precedent.
MILLHISER: Yeah. So, I mean, first of all, it’s important to understand that this isn’t a decision that’s about law; this is a decision that is about personnel. The reason why Roe is being overruled is because the Electoral College chose Donald Trump to be our president, despite what the voters had to say in 2016, and Trump filled three seats on the Supreme Court. That’s it. That’s the reason why it’s happening. It’s because the personnel on the Supreme Court has changed. That said, what has historically been a minority of justices who wanted to overrule Roe v Wade have been trying to lay the intellectual groundwork for this for a while. So, Alito’s opinion is rooted in something called the Glucksberg test. That’s after an opinion called, a decision called Washington v Glucksberg from the 1990s.
And what Glucksberg said, so first of all, the Constitution says it protects all sorts of what are called unenumerated rights, rights that aren’t mentioned anywhere in the Constitution. And then it’s very, then it very frustratingly does not tell us what those unenumerated rights are. So, the court has come up with various types of ways to try to figure out what these enumerated rights could be. The Roe v Wade opinion used one method. The Glucksberg method says that in order for an unenumerated right to exist, it must be grounded in the history and tradition of our law. And then, Alito, what he says in his draft opinion, is like he goes all the way back to the 1600s. He cites very heavily to this judge named Matthew Hale from the 1600s, who is best known for his writings on how to try people for engaging in witchcraft and for his views that there’s no such thing, that you cannot rape your spouse. So, that is what Matthew Hale is known for when he was writing in the 1600s. But Alito thought he was a good source to look to, to say, well, here’s how we figure out the history of, you know. And go figure. If you’re relying on the writings of people like Matthew Hale, you’re gonna find that, you know, Alito finds that there isn’t any history of a right to an abortion.
Now, plenty of historical evidence that disagrees with that. What the Roe opinion said is that historically, abortion was allowed before the point of quickening, which is the point at which the fetus is able to move on its own. But setting aside what the right test is and what the history says, I mean, I think it makes a lot of sense from the perspective of a conservative like Samuel Alito to wanna ground things not just in history and tradition, but in really, really old, like 1600s history and tradition. And the reason why is because you know who didn’t have a say in their government in the 1600s? Women didn’t. Black people didn’t. LGBT people didn’t. The sort of issues where the court has at times been a force of progressive change in the United States, those issues will be off the table if you’re relying on 1600s history. Because I can tell you, the British parliament and English common law courts were not asking themselves questions like, “Hmm, I wonder how we can make sure that we adequately attend to the rights of transgender people.” That just wasn’t on their mind. And so, he is trying to ground our law in a particular moment in legal history where certain people’s rights were likely to prevail, and certain other rights were not likely to prevail. And so, if you accept all of those premises, then I guess it follows that there isn’t a right to an abortion.
VALLAS: Well, a helpful little catch-up there and a lot more that could be said on that subject, but I feel like that was a really helpful little aside. And now I wanna get back into your recent piece for Vox, which I mentioned before, which reads sort of like a eulogy for the Supreme Court of the United States and not a particularly glowing eulogy. [chuckles] You know, maybe the kind of eulogy that you write for somebody that you didn’t like [laughing] all that much when they were alive!
VALLAS: Which is not a surprise coming from someone who has the historical perspective that you do as the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, available in fine bookstores everywhere. But I wanna give you a chance to really sort of lay out your case here, all sort of half-kidding aside. What do you mean when you write that, it’s, that the Supreme Court, “is now one of the chief architects of America’s democratic decline?” The last time that you were on this show talking about Roe, you started to preview a little bit of this as you were highlighting. And a little fun fact for anyone who does trivia at bars, only three justices in U.S. history have been appointed by a president who lost the popular vote and been confirmed by a bloc of senators who represent less than half the country. All three of them sit on the Supreme Court now, and all three of them were appointed by Donald J. Trump. But it runs a lot deeper than that.
MILLHISER: Yeah. Yeah. So, I mean, Alito’s opinion, when he’s not talking about Matthew Hale, the witchcraft guy, he spends a lot of time trying to make an argument that’s basically grounded in democracy. You know, his argument is that abortion’s a really contentious issue. It’s better to leave this up to elected state legislatures and not up to the court. And so, we’re just returning this to the democratic process, and whatever the state legislatures do, that’s fine. Now, I mean, first of all, we’ll see if this court actually hews to that line or if the next case isn’t going to be a case asking the court to implement a nationwide abortion ban.
But setting that aside, the main problem with it is, you know, I think that if we had a fair fight on abortion rights in this country, I’ve seen poll after poll after poll showing, one poll that I just saw showed, that I saw just showed that 58% of the country would support nationwide legislation codifying Roe v Wade’s protection. So, there’s a strong majority support for the rights protected by decisions like Roe. The problem is that the court has spent the last 10 years trying very, very hard to make sure that the majority’s opinions don’t care, or rather don’t matter. So, first of all, three of the current justices, like you said, were appointed by a president who lost the popular vote, confirmed by a bloc of senators that represent less than half the country. So, a third of the Supreme Court has no democratic legitimacy whatsoever.
And then layer on top that this is a court that has been dismantling the Voting Rights Act. The court has written three significant opinions that all but neutralize the Voting Rights Act, which is the law that makes sure that governments can’t discriminate on the basis of race when they decide who’s allowed to vote in their elections. Alito has written two of those three opinions dismantling the Voting Rights Act. Alito’s not a big fan of democracy in that context. The court has been pushing, they have blessed partisan gerrymandering. They are now, like, the new hot on the Supreme Court, at least four justices have signed on to this, waiting to see if Justice Barrett is gonna impose it on everyone. It’s something called the independent state legislature doctrine, which in its strongest form means that if you have a Republican legislature, often a gerrymandered Republican legislature—think of a state like Wisconsin or Michigan—and it wants to pass a law gerrymandering the state, or it wants to pass a law governing who’s gonna win the presidential election, it can do what it wants. The state governor can’t veto it in the strongest form of this doctrine. The state Supreme Court can’t block them. It can’t enforce the state constitution at all. State election agencies can’t do anything about it. Whatever this gerrymandered legislature says, that’s the last word.
And so, Alito has spent the last 10 years shooting bullet after bullet at our democracy, you know, making it more and more likely that our elections will not produce results that align with the will of the people. And then he turns around and is just, oh, yeah! We’re just gonna leave the question of abortion up to the will of the people. Well, he doesn’t mean the will of all the people. He means the will of people like him, because that’s what he has said in his voting rights cases.
VALLAS: And there’s so much more that we can get into in terms of what’s gonna happen in the States. We’ll be doing a lot of that in the next segment of this week’s episode with Dr. Jamila Taylor, who is the director for health care reform and also oversees reproductive justice work at The Century Foundation. But a lot more there to come later on in this episode.
Ian, staying with you on the democratic decline question here, we got into this a little bit the last time that you were on the podcast, but I wanna kind of go there now that it seems that we are getting more and more evidence that Roe is likely to be rolled back, even though, again, this opinion, not the final word on the matter yet. Just not a good sign of where things appear to be heading. The confirmations I mentioned of Donald Trump’s justices, the incredibly anti-Democratic confirmations of those justices, both because of his, he as the president who nominated them not having been elected by, not having actually won the popular vote, but also because the senators who confirmed him represented less than half the country. Points that you make, again, in your piece that we’re talking about now and which I feel like are just very important to sort of repeat because helpful context for this moment and how we got here.
Those three justices also were confirmed effectively based on lies under oath, given that they were all asked what they would do on Roe. And there was lots of talk in the confirmation hearings about the importance of stare decisis, right? Which, simply put, is sticking with settled precedent and not overturning it just ‘cause now the numbers are different on the court. Does that matter at all? I feel like a lot of folks have been asking this question. And does that change anything moving forward about what the confirmation process looks like on the court? Or is your larger point it sort of doesn’t matter because it would’ve been nice to have that conversation before, but now we are in steep democratic decline?
MILLHISER: Yeah. I mean, I think the problem is, is that the court has ceased to be an institution that’s about law, and it has become an institution that’s about raw political power. I mean, in fairness to the justices who would get up and use phrases like “Roe is settled law” or whatever, there’s this game that I think every judicial nominee has learned how to play from both parties, where a senator will ask you, “What is your view on Roe v Wade?” And I mean, there are stock answers. They’ll say, “Settled law.” They come up with all these phrases that seem to be designed to give the impression that someone is for Roe v Wade without actually saying it so explicitly that you risk perjury charges. So, I don’t think any of them said it explicitly enough that something like perjury charges would be on the table. I mean, if you had enough votes to impeach someone like a Kavanaugh or a Gorsuch then you could remove them, but that takes a two thirds supermajority in the Senate. And, I mean, Neil Gorsuch, for Gorsuch or Kavanaugh, whoever, Republicans are gonna hold him to the Donald Trump standard. You know, they could shoot someone in the middle of Times Square, and so long as they vote the right way, they’re not getting removed through impeachment. So, that’s not an option.
And so, basically, the only tactic that’s left—and I mean, and I urge people not to fall into despair because just ‘cause you’re playing on an uneven playing field doesn’t mean that you can’t win—the only tactic that’s left is just to consistently show up and vote until these folks pay a price for it. There isn’t realistically a way to get Gorsuch or Kavanaugh or Barrett off the court. But if the Democrats have a good election, they could pass the Women’s Health Protection Act, which is the bill that would restore abortion rights at the federal level. If that bill is struck down by this Supreme Court, and I’m fairly confident the Supreme Court would try to strike it down, then, if you have the right people in Congress, Congress could add additional seats to the Supreme Court and neutralize the partisans you have on there that way.
So, I think we are still at the point in America’s democratic decline where it can be reversed through the electoral process. But I don’t know if we will be there in 10, I don’t know if we’ll be there in three years if people like Alito continue to get their way. And we certainly won’t be there for very much longer if we see more and more Alitos added to the Supreme Court.
VALLAS: And I certainly don’t wanna leave us on a dark note, but we would be remiss if I didn’t give you a chance, Ian, to talk a little bit about what comes next. I feel like this is, yet again, that point in the infomercial when the person says, “But wait. There’s more!”
VALLAS: And instead of getting a second salad spinner for free, what you’re gonna get is that it’s not just Roe that’s at risk if Roe indeed falls. It feels important to just do a little bit of that previewing. Again, Roe has not fallen. We have not seen the final word from this court yet. But if we do, there’s more in the way of our civil rights that are at risk than just the right to bodily autonomy in the form of choosing whether or not women and people who can become pregnant are going to give forced birth. What other decisions are at risk, and what civil rights would be at risk accordingly?
MILLHISER: Yeah, no. I mean, if you like having the government force you to bear a child, you’re gonna love what this court is probably going to do with IUDs. So, first of all, so, there is a line of cases, Griswold, which deals with the right to birth control; Obergefell, which is the right to marriage equality; Lawrence v Texas, which is basically the right to have consensual sex. Before Lawrence, states could throw you in jail for getting a blowjob. Lawrence says that that’s not allowed anymore. And specifically, I will say that Lawrence, you know, states very often have laws on the books which banned gay sex, and Lawrence took that off the table. All of those precedents rely on similar reasoning and similar doctrinal frameworks. And so, there is some fear that after the court comes after Roe, they’ll come after Griswold and Lawrence and Obergefell next. And the short answer is that we don’t know what the court is going to do, but I think that there’s real danger there.
Alito’s opinion in the Dobbs case, his draft opinion on abortion, very closely tracks the argument he made in his Obergefell dissent: where the opinion where he argued against same sex marriage. Same argument: Glucksberg standard history and tradition. You know, abortion isn’t ground in history and tradition, he says, in the Dobbs case. The right to marry a person of the same gender isn’t grounded in history and tradition. ‘Cause, again, Alito thinks that history and tradition is like 1600 and something. Therefore, no right. And so, I think there is no question that Alito wants to overrule Obergefell. Alito wants to just take away all the marriages from all the same sex couples that are already married. Will Kavanaugh and Barrett go that far? I mean, I do not know the answer to that question. I don’t know if Kavanaugh wants the fight where he tells someone that is already married that they lose their existing marriage. So, you know, we’ll see what happens there.
On birth control, I don’t think that the court is likely to explicitly overrule Griswold. I don’t think that the court is gonna allow states just say condoms are banned or something like that. But what I do think is likely to happen is your definition of the word “abortion” and my definition of the word “abortion” does not resemble the definition that many anti-abortion groups have.
You may remember the Hobby Lobby case from a while back. That was the case about whether or not…. It was a case about whether or not employers that have religious objections to birth control were still required to provide employer health plans that include birth control coverage. And one issue that came up in that case is that one of the employers thought that certain forms of, I believe, IUDs and the morning after pill were forms of abortion. And so, they didn’t wanna prevent their employees from having it ‘cause they objected to contraception. They wanted their employees to not have it because they thought they were banning abortion.
So, what happens if a state decides to ban IUDs? What happens if you have state lawmakers who are under the impression that birth control pills are a form of abortion, and they decide to ban that? I could very easily see the Supreme Court saying that that’s allowed because all you got to do, the Supreme Court has said that when there’s issues of medical uncertainty, typically, the court should defer to the legislature. So, all you’ve got to do under that theory to ban contraception is you pass a law banning birth control, and then you have some crank OB-GYN testify that birth control is a form of abortion. And the court, and you risk having the court say there’s medical uncertainty now ‘cause, look, a doctor just said it.
So, I do think that it is inevitable we’re gonna have a fight over whether or not we get to keep marriage equality. We’re gonna have a fight over whether or not we get to keep the right to birth control or at least certain forms of birth control. And we’re potentially gonna have a fight over whether or not the government can ban sex acts after Roe falls. I don’t know how those fights are gonna come out, but I bet you that there are at least three votes to take away all of those rights on this Supreme Court.
VALLAS: Well, I am struggling to find a silver lining in anything that you are saying, Ian. But I think I found it, which is that we’ll have lots of chances to have you back on Off-Kilter to help us understand what’s happening! But obviously, really, really, really dark times right now over in the Supreme Court, if you’re someone who cares about your fellow humans, [nervous laugh] let alone yourself and your own rights. And I’m really grateful to you for taking the time to break all of this down and for being willing to come back and keep having hard conversations about really, really bad news. Someday we will find some good news to have you on this show about, but in the meantime, we’re really grateful that you’ve continued to serve as Off-Kilter’s court watcher over the years. And this is truly an historic moment to be watching the court.
Ian Millhiser is a senior correspondent at Vox. He is the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, which you can find in fine bookstores everywhere. Ian, thanks so much for taking the time, and I really appreciate everything you are doing to help folks understand the significance of this moment, what’s on the line, and why it’s so important that everybody vote!
MILLHISER: Yep. No, I mean, ultimately, that’s the, you know, until the Supreme Court takes that right away from us, that is the only power we have to defend ourselves against the Supreme Court.
VALLAS: And they’re trying, and we’ve talked about that on this show, too. So, not a joke or a hypothetical, but that is indeed the battleground. Ian, thanks again for taking the time.
MILLHISER: All right. Thank you.
VALLAS: Next up, I sat down with Dr. Jamila Taylor, a fellow senior fellow and director of health care reform at The Century Foundation, to unpack why rolling back Roe would be a huge setback for women’s equality and economic justice, how out of step rolling back the clock on reproductive rights is with the will of the American people, what’s on deck in the States if Roe does go down, and most importantly, the road ahead to fighting back. Let’s take a listen. [upbeat music break]
Jamila, thank you so much for taking the time to come back on the show. I always wish it were under better circumstances, but there are few people I would rather talk to with what’s going on in the news than you right now for this week’s pod.
JAMILA TAYLOR: Thank you so much for having me, Rebecca.
VALLAS: So, we talked most recently for Off-Kilter the last time that Roe was kind of in the news in a big way. This was last fall. It was after oral argument in the Dobbs case. And I’m really grateful to have you back on, given the news of last week. We were just talking with Ian, hearing about kind of the legal perspective and where things are headed with the court and a little bit of how we got here from a court perspective.
But I wanna start off by asking you, how is Justice Alito’s leaked opinion that came to light last week being received in the women’s community and within the reproductive justice movement? I wanna take this moment to yet again be a broken record and note the opinion was just a draft. It is not the final word of the court, but obviously not a good sign about where things may be headed with Roe versus Wade.
TAYLOR: Yeah, absolutely. Rebecca, you’re absolutely right that this opinion was a draft. Abortion is still legal in the United States. Roe is still the law of the land. But I do wanna be real about this. You know, we’re expecting the opinion to come down as such, and so, the community is outraged. Look, we have been working to prepare for this decision for several months now. But I think the fact that the opinion leaked in the midst of all of the planning and strategizing really threw us for a loop, to be quite honest. And so, at this moment, we’re mobilizing, protesting. I’m sure listeners have seen news of protests across the country, including at Justice Alito’s home. And we will continue to plan.
And look, part of this is the fight that we’re in to protect abortion rights. But another piece of this, too, is, how do we plan for what happens next, after the decision comes down formally? How do we make sure that women and pregnant people across the country can get access to the abortions they need? And so, on one side of this, there’s the fighting and the mobilizing, but then there’s also how are we planning to make sure that women and birthing people across the country can access an abortion safely? So, those are the focus of what the community is focused on right now.
VALLAS: And one thing that has been coming through loud and clear in a lot of the press coverage is just how unbelievably widespread the agreement appears to be among the American people that this is not just settled law, but where Americans want to see women’s and people who can become pregnant’s rights remain. What do we know about where public opinion on abortion rights stands at this point in 2022, decades after Roe has been the law of the land for so long? And I ask that question, asking how out of step would this kind of erosion of reproductive rights and bodily autonomy—as we see in this leaked opinion, if it does become final—how out of step would that be with the will of the American people, based on what we know?
TAYLOR: Well, it will certainly be out of step. According to Pew Research Center, about 61%—six in ten—adults say that abortion should be legal in all or most cases. So, this is clearly out of step with the will of the American people. But I think we also need this to translate into how people show up to vote in November. I mean, I would be remiss without bringing elections up in this conversation. So, whether it’s the November elections—we know the midterms are coming up—or any election that you’re participating in, it’s important to elect pro-choice officials to represent us at all levels of government. That’s the only way we’re going to protect abortion rights, as well as a whole host of other rights and justices in this country.
VALLAS: And I feel like there’s a lot more we can get into there. That was a message we heard loud and clear from Ian as well, the importance of voting, because that is ultimately going to be what we need to see people do if we want to see a better direction on this issue.
We talked last time that you were on the show about what we’ve already been seeing in Texas after a piece of legislation known as State Bill 8, SB8, was allowed to take effect. It’s been something of a real-time illustration of the catastrophic harm that can come from banning abortion, or as Justice Alito might put it, leaving it up to the states. What do we know now about what the effect would be in the states if this indeed, this leaked opinion, is where a majority of the court does ultimately land, or if we see any kind of rollback of Roe, even if it’s not quite as brazen as what’s laid out in this majority opinion? The last time we talked, there was speculation about how many states would end up actually rolling back abortion rights. But what do we know now about what the likely impact would be at the state level?
TAYLOR: Well, according to the Guttmacher Institute, if Roe is overturned, we’ll see abortion banned in about 26 states, likely banned in 26 states. So, we’re looking at about half of the country. And women and birthing people will lose access to abortion. So, this means that for those with the financial resources and the support of family and friends, those folks will be able to travel to get an abortion in the other set of states where abortion will still be available and for folks to access. But we know that for those without the means, that they’re likely to be forced to continue with unwanted pregnancies.
I think I’ll also mention, too, that abortion is health care. It should be a part of the full continuum of health care services afforded to people who need it. There’s no reason outside of patriarchy, control, and white supremacy, to be quite honest, that abortion is treated any differently than other health care services. I’ll also say that, look, abortion is hard to access in this country now, as we speak, and this is due to restrictions that are implemented in conservative states, issues around a lack of insurance coverage of abortion, particularly for women and pregnant people with public sources of health insurance like the Medicaid program, or those who may be accessing a marketplace plan that does not cover insurance. And we also see this be an issue for those that are experiencing persistent barriers in the health care system, including racism and discrimination.
VALLAS: So, one of the things that I’ve been hearing a lot—I’m sure we’ve all been hearing lots, in the wake of this leak—but one of the things I’ve been hearing a lot as sort of a response from some conservatives quoted in conservative media is, why are progressives making such a big deal about this, right? Like, don’t worry. Women can just—and people who can become pregnant can just—travel to other states where abortion is legal if it ends up not being legal in their state, right? If it’s only 20-, quote-unquote, “only 26” states that outlaw abortion, can’t women just travel across state lines and do what they need to do? How do you respond to that kind of minimization of the catastrophic harm that would come from this decision and the immense nature of this kind of a rollback of rights? And are there any other myths that you feel like need to be stomped out here so that people understand what’s really at stake in this decision?
TAYLOR: Yeah. Well, I will say, too, that some of these states that, the conservative states that are already sort of anticipating options for women and pregnant people to be able to travel, they’re already starting to think about additional restrictions that they can put into place, whether it is criminalizing these women, restricting whether or not they can travel, possibly criminalizing anyone who is helping them access an abortion, whether it’s an Uber driver or a health care provider. So, that is something that we also need to be anticipating coming down the pike. And to be quite honest, it’s just this really scary situation where they’re coming up with even new ways to really keep women from accessing essential health care.
But I think another piece of this, too, is that we have to think is about the economic impact. This is going to fall hardest on those already struggling economically. It will fall hardest on women who are already mothers. We know that about 60% of those that have abortions already have children. Oftentimes, these are women who are already struggling to parent the children they already have. So, imagine going to first try to access the funds you need to pay for the abortion yourself because your insurance doesn’t cover it. You don’t have the funding in your bank account to cover it. You have to also find health care, which is already a challenge for millions of families due to things like child care deserts or the impact of the COVID-19 pandemic, and the ability to afford child care. And then you have to pay for transportation, right? So, we’re talking air and ground transportation. Then on top of that, you probably need to get a hotel. And the list goes on and on and on, right?
So, this is not gonna be a simple solution that, oh, people will just be able to travel to other states or other parts of the country to access an abortion. This is truly going to be hard for people. And again, abortion is health care. It should be accessible in every corner of this country for people that need it. And so, I think we have to ground ourselves in these conversations when we try to focus or center the challenges that could come up when it comes to how these policies will translate, when we center people with privilege and those with means in American society.
VALLAS: Well, and really appreciate so many of the points that you just made, but especially really being explicit about why this is an economic justice issue, right? A lot of reasons why we would wanna talk about this on Off-Kilter. But of course, reproductive justice is economic justice, as it is often said, because without the ability to control one’s own body, to have bodily autonomy, to be able to make the decision of whether or not to bear children versus being in a situation of literally forced birth, which is what we’re talking about here, women and people who can become pregnant have no shot at economic independence or rights.
Janet Yellen put this very well, actually, recently in a Senate hearing. Of course, Janet Yellen, the Treasury Secretary, said in response to some questions posed by Senator Bob Menendez, a Democrat from New Jersey, that, “Roe versus Wade and access to reproductive health care, including abortion, helped lead to increased labor force participation. It enabled many women to finish school and to increase their earning potential.” She continues, “I believe that eliminating the right of women to make decisions about when and whether to have children would have very damaging effects on the economy and,” she continues, “would set women back decades.” Of course, a lot more that could be said about this, but I feel like that just puts it very, very well why this is absolutely an economic issue, in addition to being a health issue and really, an issue of basic bodily rights.
You started to get into this, Jamila, but this is not something that will be felt equally, right? This is not something the impacts of which, if this becomes the final decision, will be distributed equally across women and people who can become pregnant. And Janet Yellen actually makes that point as well, noting that denying women access to abortion increases their likelihood of living in poverty, increases their likelihood of needing to turn to public assistance. It goes on and on and so much more that could be said about the economic case here.
But I wanna spend the rest of our time together talking a little bit about what the road ahead looks like. You alluded to this before, that this is, even if this is the final decision from the court in the Dobbs case, that is not the end for the reproductive justice movement, and will be, in many regards, only the beginning of a new set of strategies to fight back and to protect women’s rights and the rights of all people who can become pregnant. Would love to hear you talk a little bit about what some of that road ahead looks like and some of what would need to happen for us to protect these rights in a way that cannot be nuked by a political court.
TAYLOR: Right. Absolutely. And so, the answer to this is multifactorial, because, for one, the focus of our conversation today is on the statutory right to abortion. That’s one piece. But then there are also the issues around access and affordability of abortion, particularly for those who don’t have insurance coverage and may be experiencing other challenges with accessing health care.
So, first, I’ll start with the constitutionality piece and the vote that we had today. So, earlier today, the Senate voted on the Women’s Health Protection Act, which is a bill that would create a statutory right to abortion. All Democrats, except Joe Manchin, supported the bill. And look, we didn’t expect for this to pass. It did pass in the House previously, and the Senate also voted on it before the leaked decision came down. But it was really important to take this additional vote today. And the thinking behind that was to get all members of the Senate on record, particularly Republicans, in terms of their vote for this. And I think this is going to have some implications going into the elections, the midterm elections, in November. So, wanted to put that out there because while it was symbolic, it is an important sort of step or part of our strategy as a community as we think about how best to move forward, considering everything coming down with abortion rights and access in this country.
I think another piece of the conversation, as I mentioned, there are still many women in this country that don’t, their insurance does not cover abortion, right? So, that means that they have to, most times, struggle to find the funding to pay for their abortion out of pocket. We’re gonna be in a situation when this decision formally comes down that more women and pregnant people will have to figure out how to travel to get an abortion that they need. So, these are all real considerations that we have to be centering in our conversation about the right to abortion, but also access to abortion as well. And so, we need to do away with restrictions on insurance coverage of abortion. And there is a piece of legislation that supports that, the EACH Act, which would do away with restrictions on insurance coverage. These are coverages that, again, deal with publicly funded insurance like the Medicaid program. But also, there are some marketplace plans that may not be covering abortion. That depends on, obviously, the state that you live in.
And so, what people can do if they are as outraged as I am and I’m sure you are, Rebecca, about this issue is to, I think one of the biggest things right now is supporting abortion funds. These are organizations that help to raise funds to support those that need the funding to get abortion. They operate in ways where someone could just call them or place a form on a website saying that they need funding to support their abortion. Someone will call them, learn more about their circumstances, and the fund will help them get the money that they need. So, right now, a big part of the work in the community is really mobilizing folks to give to these abortion funds because they are really stepping up to the plate to make sure that they’re prepared to fill the gaps that are undoubtedly coming when the decision is finally made.
Another piece of this, as I mentioned earlier, is elect pro-choice officials to represent you in government at all levels. The Women’s Health Protection Act failed today. And the only way we are going to codify abortion rights at the national level and see justices and justices confirmed that are on the right side of these issues is if we have majority pro-choice representation in all levels of government.
I think another piece of this, too, is that we haven’t had the chance to really delve deep into the conversation today and talk about those of us with multiple identities that make us less likely to be able to access abortion, a whole host of other health care services that those of us that may be a part of the BIPOC community, those of us living with disabilities, those of us that may be part of the LGBTQ community. And these are the folks that, again, are going to suffer the most from not having access to or the right to an abortion in moments like this. And so, for me, another piece, I think, in terms of the way forward is if we can band together across our identities, across movements, to really work in lockstep to fight this, and then also to just make sure we’re doing all we can to ensure access and support for abortion in every corner of this country.
VALLAS: Well, and Jamila, in the last couple of minutes that we have, I just wanna say how much I appreciate your work on this issue. And there’s obviously a lot of folks who have been bracing for this moment, but you are one of them. You’ve been doing work on these issues for a very, very, very long time, going back to when you and I both overlapped at the Center for American Progress and well before that in your pre-CAP life, pre-CAP, pre-TCF life. But I just, I wanna, as we close, send out just a really big note of appreciation to all of the folks in the movement, all of the folks at the non-profit organizations, all the people who are paid, who are volunteers, who work on these issues at any different level, because this is a long-fought fight that we’ve already been on in terms of decades and decades that got us to this moment. Whichever way this moment goes, whichever way the final word of the Supreme Court on this case goes, we know it will not be the end. And so, this is one of those episodes that I sort of almost hate putting out into the universe because it’s such a downer on so many levels and so scary and terrifying in real world terms, in very imminent terms to so many of us.
But I wanna end not on a note of hopelessness, but on a note of hope because of all of the incredible organizing and strategizing and work that’s going on within the movement and within all of the advocacy spaces to try to do whatever can be done to chart a course to protecting a woman’s right to choose and the rights of all people who can become pregnant to have control over our own bodies. So, Jamila, any final notes that you want to offer that allow us not to leave folks on a note of hopelessness, I would invite and welcome.
TAYLOR: Yeah, absolutely. Well, first off, I wanna thank you, Rebecca, for covering this issue. Obviously, this is not the first time. You’ve done it several times with Off-Kilter. And I wanna show you appreciation for doing that, ‘cause it’s so important for people to understand what’s at stake and then also, how we all have a role to play in fighting this. And then the last thing I’ll say is, look, everyone loves someone who had an abortion. This is empirically proven. [laughs] So, I think given that, whether you know it or not, you love someone who had an abortion. And so, for that, that resonates with me so much because it just proves that we are all in this fight. We are all in this to ensure that everyone can have access to the health care that they need. They all deserve, everyone deserves to have access to the health care that they need. And so, I’m hoping that people take that away from this conversation today and that you’ll get involved, you’ll join us in fighting this. And just treat the people with compassion in your life that you do know who have had an abortion, and support this fight, even if it’s for them. So, that’s all.
VALLAS: Jamila, lots of gratitude, sending you all good wishes. There’s a long road ahead here that you will be one of the folks really charting a course to. So, just a lot of gratitude. And I hope that you and everyone else out there are taking care of yourselves in this incredibly difficult stretch. It can be really, really traumatic, even just to read the headlines when this is the kind of set of issues that’s at stake. So, a lot of love to everyone out there in cyberspace who’s listening, and give yourself a hug this week. You need it.
Jamila Taylor is the director of health care reform and also a senior fellow at The Century Foundation. And Jamila, I’m so grateful to you for taking the time and for always taking the time to sit down with Off-Kilter when these are the issues in the news. I promise we will find a time to bring you back on the show under better circumstances when we have good news to talk about! That is a firm promise for me. But in the meantime, just a lot of gratitude. [theme music returns]
TAYLOR: Thank you so much.
VALLAS: And that does it for this week’s show. Off-Kilter is powered by The Century Foundation and produced by We Act Radio, with a special shoutout to executive producer Troy Miller and his merry band of farm animals, and the indefatigable Abbie Grimshaw. Transcripts, which help us make the show accessible, are courtesy of Cheryl Green and her fabulous feline coworker. Find us every week on Apple Podcasts or wherever you get your pods. And for the Superfans, you can find a full archive of all past episodes and show transcripts over at TCF.org/Off-Kilter. Got an idea for a topic you’d like to hear us unpack or a guest you’ve been wanting to hear on the show? Send us a note at Off-KilterShow.TCF.org. Or if social media is more your bag, give us a holler on Twitter @Off-KilterShow. And if you like what we do here at Off-Kilter Enterprises, send us some love by hitting that subscribe button and rating and reviewing the show on Apple Podcasts to help other folks find the pod. It really does help. Thanks again for listening and see you next week.