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Thank you for joining us for post Roe America, moderated by Dahlia Lithwick Before we begin, we'd like to thank our social Waldron.

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I'm Dahlia Lithwick I cover the courts and the law for Slate, and I host their podcast Amicus and we are live today with our friends at Crosscut and coming out to our Amicus listeners as well When we first conceived of this panel, Roe v. Wade paid past, present and future.

We didn't expect it to be quite so on.

The news events of this past week have signaled that in some sense, the Roe of today is already passed in the Roe of the future is about to begin in light of the huge news from the Supreme Court this week, a draft was leaked of a majority opinion in Dobbs.

That's the Mississippi 15 week abortion ban.

It looks to represent a five to four majority to overturn Roe v. Wade and planned Parenthood vs. Casey.

The conversation that you were about to hear literally could not be more urgent or timely or How we got here, where we go next.

I am so delighted to introduce you to our wonderful panel today.

Each of which is an exceptionally expert thinker on these issues that we're about to discuss.

Jessica Bruder is a journalist who writes about subcultures and social issues and the author of The New York Times bestselling book Nomadland has been translated into twenty four languages and adapted into an Oscar winning film.

Jessica is also the author of Burning and Snowden's Box: Trust in the Age of Surveillance.

She's been an adjunct professor at Columbia Journalism School and to the New York Times for more than a decade, and she's written cover features for New York WIRED and Harper's Magazine in Next, we have Melissa Murray, the Frederick II and Grace Stokes , professor of law at the NYU School of Law and Faculty Director of the Bimbaum Women's Leadership Network.

Melissa teaches courses on family law, con law, criminal law, and feminist legal theory.

She clerked for Supreme Court Justice Sonia Sotomayor, then on the U.S. Court of Appeals for and for the honorable, honorable Stephan Underhill of the US District Court for the District of Connecticut.

Susan Matthews News is Slate's news editor and my editor, who during her time at Slate, has written and edited Slate's jurisprudence Medical and women's rights coverage.

And just today we announced at Slate that Susan's newest project, which will be that she is the of the seventh season of Slate's Slow Burn podcast this season.

The focus is on the road to Roe v. Wade , and I think we have a little trailer to share with you right now.

Overnight tensions running high outside the Supreme Court Roe In the draft opinion shows the court overturning Roe v. Wade in a blistering ruling What will the future of abortion look like in America?

It might look a lot like the past The illegal termination of pregnancy has reached epidemic proportions in this country.

What do you think that people tend to misunderstand about the lay of the land before the decision?

The answer is lots I'm Susan Matthews.

And on this season of slow burn , we're looking back at the years leading up to Roe v. Wade All the 50 years later, I still don't know exactly what happened to me.

It's always women who have the abortions , but it's always men who make the law and that stark reality hit me like a punch in the gut.

We'll tell the forgotten story of the first woman ever convicted of for getting an abortion.

Women are told Don't worry , it's never going to be you.

It's going to be the person who does And here's a case where actually know we're coming for you to will introduce you to the unlikely Catholic power couple who helped ignite the pro-life movement and your heart just sinks in.

You think these aren't blobs of tissue These are these are babies, and we'll look at how a rookie Supreme Court justice appointed by Nixon tackled one of the most pivotal cases in American history Frankly, when they decided the case, they were all of one mind that they had solved this issue once and for all.

Slow Burn Season seven Roe v. Wade premieres Wednesday, June 1st.

Subscribe wherever you listen to podcasts , and I am sure you remember Dad saying We will not live to see Roe overturned , but you kids will So I want to welcome our panelists on what is a really, really fraught and complicated week for all of us.

And thank you for joining us.

I want to also remind listeners that we will be taking your questions toward the end.

So please let us know what you're thinking about.

Melissa Murray with you only because you were supposed to be , in some sense, the ghost of Roe present, but that's changing under our feet.

And I wonder if you can talk a little bit.

I'm assuming most of the folks who are tuning in know what's happened this week, but can you just talk as briefly as you can about what it is that we learned this week from Justice Sam Alito's leaked draft opinion in the Dobbs case and what it's stands to signal for the future of Roe and Casey Thanks, Dahlia, and thanks so much for Crosscut for having us.

This is a terrific conversation.

So the leaked opinion , I think, is not a surprise to those of us who have the court.

I think it was expected after the December oral arguments in this case that the court had a firm five-Justice to overrule Roe vs. Wade and Planned Parenthood vs. Casey, which are the two pillars of the court's abortion jurisprudence.

was surprising was one the fact that the draft opinion was leaked.

This is a draft from February.

It's now April.

been many drafts exchange, but this draft, this initial draft was released that is highly unorthodox and very, very But also surprising, I think, was the utter apps saluting them of this particular draft opinion.

So this is a very extreme draft opinion.

This opinion could be written lots of ways that the Chief Justice was offering some in oral argument for a majority to come together to uphold the Mississippi law.

HB HB 15 10, which bans abortion at 15 weeks.

But to stop short of overruling ROE and Casey.

And you didn't get a lot of takers for that, but that would have way.

There also could have been a way to write this.

That was just a lot more narrow and more moderate.

But the tone of this is caustic, it is aggressive, it is extreme and not only does it eviscerate Roe and the abortion right, it also makes clear that the problem is that the majority identifies with Roe that it is unmoored from constitution and attacks, that it is unrooted from historical traditions in the United States.

that it is a constitutional apostasy.

The of arguments might be made for other rights like same sex marriage or interracial marriage or contraception.

And so what you see in this opinion is a valiant although somewhat disingenuous effort to say this is limited to abortion, but lurking on the sidelines and in the margins of this opinion is a blueprint for these other kinds of rights that have the same infirmities.

The court has identified and Roe.

And I do want to get back to that, is we have Justice Alito's explicit promise that he is campaigning, that the decision to Roe and Roe only.

And he says it's because, unlike all those other rights, this involves the taking of life.

And I want you to help us understand why we maybe shouldn't take him at his word.

But I want to turn to you for a minute.

Susan You've been down the rabbit hole for weeks, months , length, years, months, months, many years, months on how we got to Roe in the first instance And one of the things I think you've researched so deeply and this is also it shows up in some of Jessica's reporting , too, is how we got to this place We're at a moment now where every confirmation hearing is an all out referendum on Roe v. Wade It's a death match.

We now have Donald Trump, who promised explicitly he was going to seek justice , who would overturn Roe.

He gave us their names for the first time in history.

This polarization that we have around Roe and how we talk about Roe and I think this this is without doubt the best known case , probably in in sort of the public discourse can you help us understand how this polarization, how this almost singular, myopic obsession with Roe was not at all the lay of the land in nineteen seventy three when it was decided I can try.

I think the most interesting thing that I was kind of attracted to in this , you know, now when you talk about Roe, it feels like it's such a divide.

You know, exactly where you stand, you know where a conversation.

But when I started looking into this one of the things that I thought was was incredibly interesting is Roe is actually passed, there was a Gallup poll in 1972 that , first of all, showed that about two out of every three Americans , you know, liberalizing abortion laws.

They thought that a right to an abortion should be between a woman and her doctor.

consistent even since then.

But additionally, Republican Owens actually supported the right to abortion at a higher rate than did.

There are a few reasons for that.

One is because a lot of the early opposition to Roe or to abortion, even before Roe was not organized around politics, it really came from the Catholic Church.

The Catholic belief that life starts at conception and a lot of Catholics were working class Democrats at the time, and a lot of Republicans were like invested in small C conservativism.

They were not interested in the government having to legislate this.

They hearing from from doctors and from women about what was happening.

And they kind of thought that this was the approach.

Another interesting factor just of this time period is that the late 1960s and early 1970s overpopulation is a big Is a lot of Republicans who are quite concerned about that, and in some unsavory ways, we don't have to get into that quite right now.

But that, I think, is really interesting.

And the last thing that I kind of want to say about this is, you know, I've work looking at the life and jurisprudence of Justice.

Harry Blackman And I just want to point out that he is appointed Court by Richard Nixon, and he's actually the third candidate for the job and the first two are put up like, kind of don't make the cut because the standards were quite high and in a totally different way than they are now.

You know, this was going into the court that had had with kind of on this progressive streak and and the Senate was really them in a totally different way than it is now.

And I think that that Justice Blackman coming in with that situation really made him approach this case with so much nuance and carefulness and historical research.

And he really wanted to resolve this issue.

He thought that he could resolve this issue and he wanted to take perspectives from both sides and like, incorporate them in the opinion.

So I think that it's it's another thing that's really telling about our politics, how it at the time has been changed to.

This is radical.

You know, justices doing legislation because that was not the case at Just Jessica in a deep way.

This panel has to be called The Jessica Show because of your really magisterial and I think very prescient piece in the Atlantic that was called the future of abortion in a post Roe America.

It is a really definitive commentary on what's coming next , and it feels like it answers so many of the questions that I have about what's coming next.

Can you just give us five full minutes on what you learned about medication abortion, about abortion funds, about the sort of pat work of underground abortion action that's coming and how this is going to play out?

All right, I'm ready.

Let me know what I hit five because I could probably mirror this for way too long.

And thanks for having me Well, it came up even into the preview for Slow Burn that we won't go back.

We won't go back.

Well, one thing that came up in my reporting is there are some ways in which we actually can't go back.

And part of that is the most important thing I should tell you about that is we've got abortion pills and a lot of people in the US actually don't know what they are, which is amazing considering that in 2020, 54 percent of abortions on record were accomplished with abortion pills.

Meanwhile, we're at a point where still 90 percent of abortions in the U.S. are in the first trimester.

That's when these pills are used and they are becoming increasingly popular.

, they allow people to have an abortion in the privacy of their own home.

And so I'd love to introduce you to them.

This is misoprostol, and mifepristone is known also as RU486.

The French abortion pill and it's a progestin Roe and blocker.

This was a little hexagonal creature is misoprostol.

Also known as cytotec.

It was originally to help people with stomach ulcers.

So when we talk about abortion pills, most people are actually talking about those two pharmaceuticals.

The way they work is mifepristone, is essentially a progesterone blocker.

That's the hormone.

of the hormones needed to maintain a pregnancy, and misoprostol induces cramps.

The backstory there is that it was in the 80s, and the women there were very creative and saw on the label that people were not to take it if they were because it could induce cramps.

Lo and behold, some people did not want to be pregnant and discovered that it was a potent today, the combination of pills is FDA approved for ending pregnancies up to 10 weeks, and the World Health Organization, is a little less conservative.

They have protocols for using them up to 12 weeks and even after that.

So how do people get pills?

What are they do with them before the pandemic?

There was a rule federally that for St. that's just one one had to actually go to the doctor and take it in front of the doctor, which doesn't make a lot of happens.

It's not like you grow a third head.

It's not like you have an abortion on the spot.

It's just a slow process.

So rest of the pills to take home.

That restriction was lifted during the pandemic.

It was briefly reinstated, but now it's This led to a flowering of telemedicine startups, all offering the pill.

Many of them with video consulting So now, depending on where you are, there's a great website called Plan C Pills dot org and you can put in your state.

Since we know this is all going state by state and and that that's even been happening before Roe and figure out how to get them for The Atlantic story, I ordered them from Aid Access, which is a group based in Europe.

They actually send people in all 50 states, even in states where they're already restricted because they are out of our jurisdiction and they also supply them for what's known as advanced provision.

Some of our viewers may have read earlier today that people stocking up on pills while they can just out of concern.

And to the best of my knowledge, and I think other people are trying to start offering them for advanced provision aid access will actually offer them to people as of thing.

So that's what's going on with that.

But even before this decision comes down, medication abortion has really become one of the hottest fronts in the fight over control over women's bodies.

We know that in the first three months of this year, more than 100 restrictions were passed on medication in the States.

That's part of a much picture where more than thirteen hundred state restrictions have been passed on abortion since Roe versus Wade.

It's kind of in that many places.

I spoke with activists and they said, like , look, Roe might as well not be the law of the land here.

because they're, you know, the issue is access.

So, for example, if you told me just you can't go to the Moon, the great , I'm so pleased that I have the freedom to go to the Moon.

But if you're not giving me a ticket , I am staying in my seat, for that reason.

A very strong grassroots of abortion funds.

There are more than 90 of them in the US and they do the roll up your sleeves work of helping raise money for people who can't afford pills or procedures.

We know that since 1976, a federal Hyde amendment has made abortion funding ineligible for you can't get it through federal Medicaid.

Basically , it's not supported.

So abortion funds are amazing.

I know everybody saying donate to Planned Parenthood, but abortion that are also always short on resources.

So that's a big thing right now.

So we have the grassroots, the people who have up in the cracks because Roe has been gutted.

So badly already by all of these restrictions.

And then we have the underground, and is going to be doing people, basically doing a lot of different things extra legally is what we're talking about, who mailed pills to a 13 year old who was pregnant and did not want to be in Texas on the eve of the ban, women in Mexico offering to bring the pills over my suppressed files available over the counter there is cytotec.

So people bring it in again.

It's going to be a patchwork like it is now, and people can afford to will be going to other states.

I spoke to bring them to the borders of hostile states.

So you know, we can get into the diaspora there.

But but I should probably stop I'm yeah and rent and it's really useful to hear what you're saying just because one of the most, I think enduring lessons I had this year came on my podcast when Professor Catherine Franki on the podcast reminded me that the day after Roe Roe was not the law of the land that since there's been a Hyde amendment that since there has been huge , huge amounts of restriction that have burgeoned in recent years The fact is that Roe was a paper right for an awful lot of people, particularly the folks that you're describing in this sort of desert area of the country where it has been actually not a real right or a meaningful right or an achievable right for a long time.

Melissa, I do want to turn to you with another tricky legal question, which is this.

It seems that Justice Alito's opinion in what may or may not become the final Dobbs opinion is it pains to say we're just returning this to the states , and that's as far as it goes.

This is very, very solicitous of Justice Brett Kavanaugh's concerns that he voiced at oral argument when he kept saying, This is the neutral to do.

We'll return it to the political process in the states But more and more we're hearing that in fact, states are not just going to ban abortion.

Those twenty two states that or twenty four states, but that we are going to see a creeping criminalization, not just of abortion, but of some of the things that just just walked us through, including popping pills So I wonder if you could just help our listeners and our viewers understand that this is not quite as neutral or anodyne and action as simply returning it to the states We may be looking down the barrel.

And by the way, we're seeing all over the country.

They show up in just this article two where women already are being prosecuted for miscarriages or obtaining pills for their kids.

So I think it's a really important question, Dahlia.

And you know, when this was mentioned and floated in oral argument in December, I remember thinking like , Wow, this is incredibly naive.

And Justice Kavanaugh, he seemed to be suggesting that this had become so contested and contestable that there was no way to sort of settle it in a reasonable way beyond giving it back to the states, which he viewed as, as you say, settlement that would return this to the political process where each state could make a decision for itself about what Constituents reflecting the preferences of those constituents rather than the preferences of nine unelected you know, I understand the appeal of that, but it also seems hopelessly naive, like we've already seen states like Missouri suggesting that they're not content to simply restrict abortion within their own borders.

They're actually interested in influencing what other sister states may do so.

Missouri has proposed making it unlawful for individuals to leave the state to get an abortion and more importantly, making it unlawful for anyone to leave the state to do so, which, you know, I think raises a flood of constitutional questions about the right to challenge the the dormant Commerce Clause, perhaps even First Amendment challenges if in fact, assistance is donating to an another state that transports people outside of the jurisdiction to seek abortion care.

So, you know, the idea conflict, it actually, I think will accelerate.

It will just be a set of new conflicts that we have not really seen before.

conflicts and Rachel, Rebecca, David Cohen and Greer Donnelly have a fantasy stick paper coming out in the Columbia Law inter jurisdictional challenges might look like.

But the real question, I think, is sort of the acceleration of the mood or the tone, right?

I mean, it's one thing to have civil restrictions on abortion like waiting periods and the of an ultrasound.

It is quite another thing to make it either a criminal penalty or some quite meaty civil penalty to provide an abortion or to assist someone in doing so.

And so I think we're going to see an acceleration of what the tenor of regulation looks like.

And that too , I think, will be significant.

A lot has been said about the fact trigger law.

So there are, I think, about 13 states currently that have on their books, on their legislative books, draft laws that will go into effect that criminalize abortion as soon as the court says Roe vs. Wade is overruled Some of those states have hedged Oklahoma.

Just last week, was talking about like they would have a trigger law, but they even if the court did not completely overrule Roe versus Wade, the trigger law would still go into effect.

So even a in motion.

And then there are a number of states like Michigan, for example, that have what I call zombie laws on the books.

seventy three, when Roe was announced, not all states repealed their abortion laws , they just sort of sat on the books in a sort of state of destitute unenforced , but still there.

And if Roe is overturned , they, like zombies, become revivify and can be used against individuals in those states, whether it's pregnant persons or doctors.

But you know, I think we're going to see a lot of challenges.

Doctors are going to have licensing and legislation around that.

There's going to be criminalization litigation legislation around that.

And someone in doing so.

So this settles nothing to say So I think it's really fatuous and disingenuous and let's add one layer to that, Melissa, which I think is implicit in what you just said and I think actually baked into to these new criminal penalties, we're seeing this uptick in citizen bounty conscripting citizens to become part of the law enforcement regime So we're not simply talking about new criminal laws.

We're talking about telling on your neighbors sometimes for money , and that becomes a part of the legal regime that's used to enforce this.

Well, so can I say something about that?

I think this is incredibly devilish And, you know, Elena Kagan referred to the architects of this Texas bounty scheme as, you know, some geniuses.

It's devilish.

It's managed to stymie any hope of challenging the Texas law in federal court.

But I actually think there's a long year or for this.

If there is national legislation prohibiting abortion And the Conservatives have already indicated that this is not going to be a state by state settlement, they're going to have recalcitrant blue states, we're like, Yeah, it's on the books, but our people just aren't enforcing it.

Now you all of these watching neighbors.

I mean, I think actually that is the sort of hidden aspect of this that we haven't even that in red states, you have all of these watchers doing this and it's for the purpose of avoiding litigation or enforce or federal court litigation that would shut this down.

It has this after effect where if there is some broader national scale, and created an enforcement force of citizens where even if states are more reluctant to do so, I want to just remind our audience that if you have questions, you should pop them in the chat because we're going to get to them very soon.

And I want to turn to you, Susan, because I think Melissa just made a really important point, and I think just heat it up, which is anyone who thinks this is a red state blue state issue is not entirely correct.

This is going to have implications from the narrowest , most trivial.

You're going to have a longer wait at your clinic in Maryland because people will be traveling , but also because we are looking at no federal enforcement strategies where they are mail interventions or whether they are a bans on travel.

So this is not a kind of well, this isn't my problem problem, but I did want to give you a chance to respond , and I know this came up in research for slow burn.

You know, there's a there was another way of looking backward to say, Oh, if Roe had just been better drafted, it needed to be written better and then we wouldn't be in the boat we're in And you've already teed this up when you said Justice Blackman was so meticulously careful, he thought to get everything right here.

But what do you say when people offer the critique that, oh, if they had just rooted this in stronger, why isn't it lashed to the equal protection clause?

Damn it , Susan thinks Roe so that this didn't happen.

What's answer?

Well, the real thing is is that that is everyone has a reason or a theory of how they could have decided.

Rose that this protection would would actually, you know, be stronger.

There's this whole idea like if, if, if, if anyone knows anything , it's that it's grounded in privacy.

And privacy isn't really a great grounding.

for this, right?

This right is too about this a lot.

So Dahlia, I want to welcome you to chime in here, too.

I think that this has been such an interesting thing to watch people say because first of all, I think if you look at justice Alito's opinion like this is obviously not about , I think, how the practice of law is not really about the interpretation of of the Constitution, it's about going than that, I actually think that we have done ourselves a disservice in the way that we've talked about privacy.

It's the privacy aspect of the 14th Amendment that they're building on is something that was being built on in that time in the Court's jurisprudence.

So it was like the most likely place that they were going to continue this.

And Sarah Weddington, who this.

She offers it amongst her arguments.

But I also just wanted to say, and this is what we've been talking about, is it within the bounds of privacy, within the idea that this is a decision that a woman makes with her doctor, and it's it kind of has this element of being like a little bit shameful And it's just it doesn't sound like a very strong about the 14th Amendment, it's about family autonomy, like it's about how to construct your family in the way that you want.

And it seems impossible to me to argue that having that you can have you cannot have control over that and you can have liberty and life and happiness under, you know, the Constitution so that to me, I the thing that I have come to is really feeling like when we kind of say, Oh, privacy wasn't , this wasn't the right thing and oh, I could have decided Roe better.

And it could have been stronger.

Like, I don't think this was not going to blow up into the fight that it became.

But I also think that there's a way that we can think about this and actually understand that as a really deep fundamental right And just can you talk for a minute if you would , about I'm sure you're getting a million fold, the questions that the rest of us are getting about what's the best thing to do?

How who do I support?

Who do I help What am I meant to do?

And on my my snippy answer tends to be invent a time machine, go back three years.

Care about the composition of the Supreme to our viewers and listeners.

What are you telling folks who really, really feel as though they're looking at a juggernaut here?

And if what you were saying and Melissa's saying, it's going to get exponentially worse, what are you telling Yeah.

Well, I do think actually your time machine thing isn't that bad because I do think we need to remind people to vote to remind people that this is a long game.

I think everybody's adrenalized right now and kind of fight or flight mode, and seen this coming for a very long time and again Roe has essentially not been the law of the land for a lot of people.

in many areas of the country and in many communities, often the people who are most marginalized when it comes to getting medical general.

So looking at it, I did mention abortion once before, and I don't want to just keep, you know, beating that hurts.

it's so important.

And if you look at the website for the national network of abortion funds, they're all over the and they're grassroots and they're doing the work.

People also volunteers, clinics , sports to help the patients get There are just all sorts of things, and again, those funds are a great way to reach out reproductive surrogate for volunteer help.

There are tons of places where one could donate if one were so inclined that there's a really cool , How and they are all about basically protecting people who are involved with a self-managed abortion.

So they have a defense fund for that.

They have a helpline for that.

People can call them up.

So, yeah, I would urge people to look past the headlines and the big names and look for the people who are in the trenches and maybe less recognized that way because many communities have them and they need support.

According to the national, the network I believe in 2019, they were only able to field twenty five percent of the calls they got because they've always been that was before this.

So I mean, basically, the house was on fire.

Already, gasoline has been poured on it, but there are things you can do to show up with a bucket if you want.

And Melissa , you started with this and then I redirected us, but I to land on this because you pointed out anyone who thinks that this is limited to Roe v. Wade and Casey is kidding And that bucket that Susan referenced of Unenumerated rights substantive due process , those rights of familial privacy, autonomy , the ability to raise your children, to have your children changed and your children to the schools that you choose, all of that stuff is sewn in the same ground as Roe v. Wade, and it is certainly all the stuff that justice Alito barely addresses in this monumental 90 page.

Ninety eight page opinion doesn't have a lot of time for those unenumerated rights, and as you suggested, are the the rights that protect the anti-mouse education laws in loving Griswold vs. Connecticut.

That's contraception Obergefell marriage equality.

So when Justice Alito tells us, don't worry, we're going to pull out that is Roe and Casey, but everything else stands.

Do we take him at face value?

I mean, he's obviously someone who's never played Jenga.

So there's that.

Yeah, Let me just first say this whole unenumerated rights versus textual rights.

That is kind of the spine of this opinion again.

Conservatives love talking about the fallacy of unenumerated rights until they want to defend executive privilege or qualified immunity.

Both of which are not explicitly mentioned nor protected in the Constitution.

And so if we're going to be consistent about and not itinerant.

If you don't like unenumerated constitutional principles, then don't like all of them, not just this one.

So that's my one hobby horse.

I have more.

The other thing that it needs to be said here is the idea that Unenumerated rights apostasy is really divorced from the text of the Constitution itself.

In his opinion, Justice Alito speaks of text based , and he speaks specifically of the first eight amendments as though there aren't other amendments, including two other amendment, including the Ninth Amendment, which explicitly says just because we've enumerated something doesn't mean that that for protection here, like there might be more.

And the fact that we didn't write it down doesn't disparage the existence of those So that suggests that there could be implied rights and indeed there have been implied rights.

Justice Alito, in this Amendment says nothing about abortion.

Doesn't say anything about marriage.

Says nothing about contraception.

Parental Hogue at NYU Peggy Cooper Davis wrote a marvelous book many years back, neglected stories, the constitution and family primary source material that makes clear that the drafters of the Fourteenth Amendment were consciously trying to repudiate the institution of slavery and also all of the vestiges of that institution, including the fact that enslaved persons lacked family integrity.

Their families could be sold from them, their children could be sold from , they had no bodily autonomy.

They could be sexually compromised by an owner or mated with another slave for the purpose of reproducing the slave population.

So the 14th Amendment's guarantee of to address all of those things.

Those liberties that were absolutely denied to individuals who were enslaved.

And so when the 14th Amendment was about repudiating slavery.

He's right.

He just misses what repudiating slavery actually mean.

So I buy this unenumerated rights versus text based rights fallacy.

And third hobby horse for me is this idea that you can sequester the question of abortion because abortion , quote unquote destroys potential life, and does not imperil these other rights like same sex marriage, interracial marriage, contraception.

That is and he's disingenuous to suggest it, and he knows he's being decent genuis.

Those same rights are all undergirded by this right to privacy.

If you tug on privacy in Roe , you are tugging on all of them.

And even Justice Alito has made clear in his own writings that these things are inextricable , intertwined in the Hobby Lobby decision from argued that certain forms of contraception, like IUDs or the abortion pill protocol that Jess was describing, those two are abortifacients because they destroy potential life by preventing it from being uterine wall.

So it's how can you distinguish between the abortion that destroys potential life when you've already said other forms of contraception also do the same thing?

How can you distinguish between the unenumerated rights of abortion right to marry a person of the same sex?

You can't, and he knows that.

So he's saying this now.

But in that opinion, there is an entire blueprint for eventually coming back to these other rights.

And in fact, if you look at it, it says that legislatures make these decisions, reviewing courts have to accept them because they have to respect the judgment of state on issues of social significance and moral substance.

What could he be talking about other than abortion, contraception , marriage?

These are those issues of social significance and moral substance, and he knows that it looks like we lost our lethargic I have more hobby horses, so we can.

I can.

I can.

I can I share a little thing with you that I didn't get to talk about anywhere else, but I just did, you know?

Yeah, that and slaved people used cotton bark as an abortive fashion.

I just think that is such a powerful symbol because it's also the cash crop that is being produced on their backs And for me, it's just little glimmer in this incredibly draconian picture of people having no autonomy and and finding the crack that lets the light in any way Sorry.

Well, Peggy Cooper gave us talks about this in her book, like, if you have not read this book, Neglected Stories The Constitution and family values, you should.

And published an op ed in The Washington Post yesterday, building on this literature that she has put together over many, , stunning academic career.

And you know, she's right, and it's such a review book to those who argue that, you know the , it's not about women, it's not about abortion.

And she's like, it's about all of these things because slavery was about all of Yeah, it's it's really about the people who are left out of the original constitution.

So the whole framing of how Alito that opinion, I mean, I think it's interesting.

We've all talked about the fact that we didn't want to be here this week that, you know, this week was really hard.

But I think that, you know, I'm sure that all three of us had an idea that And I think that the thing about the actual draft opinion that we've seen is just that it is it is shocking.

It's not surprising they're going to overturn Roe versus Wade.

But we Dahlia and I have been talking amongst ourselves for years saying the Roe vs. Wade is overturned.

So how do we message this?

How do we how do we explain this to our readers in a way that actually explains what's going on?

And, you know, just as you've said, there are so many places where Roe is essentially not the law in particular to me, felt so shocking in in in the way that it talked about it in the way that it talked about how the original decision wasn't wasn't a reasonable piece of jurisprudence at all.

So if in fact, this is just a draft and there are subsequent drafts and maybe this has become more tempered and maybe a compromise has been reached that doesn't I hope we take from this that we are not in the clear I mean, because this has been going on for ten years, like, you know, there's an abortion challenge, everyone waits with bated breath and you know, they whittle away the right.

But Roe still stands, Potemkin village at this point.

I mean, it's literally desiccated in front of us.

Why we need to just like, believe them the first time this draft opinion is believe them, the first I believe them when they show you who they are, I want to apologize because I dropped out for a minute and I think it was Melissa's the running of the hobby horses that annihilated my connection.

But I wanted to ask if I could one more question and this is a grab bag that any of you can take.

There is a race valence to this opinion and to this long history.

Melissa, you've written about it extensively and language in here.

That is a love letter to Clarence Thomas and eugenics that you've written about extensively.

There's also a religious valence throughout I think Susan started talking about the ways that religion in shaped this debate, but it's everywhere and nowhere.

And so I want to give one of you.

You can raise your hand a chance to talk about how this is all about religion and not.

And then I want to give Melissa a chance.

Maybe you'll go first, Melissa, to talk about how this is all about race and we're going to say goodbye to Jess because she's going to be on TV But if we can keep you for just another minute to talk briefly about race and religion and thanks, Jess.

Melissa, go ahead.

So one of the most important footnotes I think, in this draft opinion as a footnote that is essentially , as you say, a love letter to Clarence Thomas Justice Thomas in a shadow docket opinion called Fox versus Planned Parenthood of Indiana and Kentucky, wrote that abortion , including trait selection restrictions so these are laws that prohibit abortion if it's undertaken because of race, sex anomaly, that these are nothing more than the state's modest attempt to prevent abortion from fulfilling its quote unquote sets out to craft a law office history in which he basically graphs the history of abortion on to the history of birth control.

And he argues that Margaret Sanger worked hand-in-glove with the cite family planning clinics in black neighborhoods ostensibly for the purpose of stepping out black reproduction and limiting black political power in the body politic and again, there's so much wrong with this like the history is selective and cherry picked it really fails to see the eugenics movement for what it is like.

Eugenicists were not actually interested in abortion.

They were actually interested in stopping into the country, stopping non-whites from marrying whites and stopping white people who were not living up to the children in their preferred method of reproductive control was actually sterilized , which later in the nineteen sixties women of color who were often on public assistance that entire history is completely absent from this fuck up to history that Justice Clarence Thomas has concocted in this draft opinion.

But it has had legs and it lives in the lower federal courts many of Justice Thomas's former clerks pared it back and various opinions.

And it has gotten a new lease on life in this footnote, and it will surely be raised up like a zombie, if you will, in future opinions dealing with abortion.

So get ready for the racial justice aspect of abortion, because that's what that says.

Abortion is actually injustice and laws like this one that overturn or opinions like this one that overrule Roe vs. Wade.

They're really about discrimination and racial justice and same question to you quickly, Susan.

Can you talk a little bit about how religion figures into this?

And then we've got amazing questions that I want to get to Yeah, I think that what I just want to say, I think that your point that it's everywhere and it's nowhere, I think is is the , you know, when when I've been looking at the opposition in 71 and 72, it so clearly comes from a very deeply held religious belief that life begins at conception.

We know that we know that that is kind of the mantle has been brought up.

But the in my work at Slate, I work on jurisprudence, but I also work on science coverage.

And the thing that has been so who are proposing that argument are actually very much putting in a lot of effort to shroud that argument in the clothes of science rather than religion.

And I think that that is something that has been really, really instructive to me.

That's episode of this series and and diving into that world has been as you and all your quite quite an experience for me, and I'm take questions from our audience.

So one question that we have that's very specific is from an audience member asking whether Missouri has criminalized IVF.

Is that true?

or is it happening?

Could it happen, Melissa?

It's to my knowledge Missouri has not criminalized in-vitro fertilization , nor could it happen going forward.

I think it of the things you need to understand about assisted reproductive technology is that it often results in the or fetal tissue, whether it's through selective reduction of embryos, of multiple embryos or implanted or simply the use of fetal material on the embryonic material.

So , you know, that is in the offing.

I think in the logic of this opinion, I think does not dissuade anyone who is interested in pursuing that from from doing so.

So, you know, I think I can't underscore enough like our fates are intertwined.

This is not a woman problem and it's going to be a problem for a problem for women of color.

It's going to be a problem for the LGBTQ community.

It's going to be a problem for anyone who for family formation.

And so again, our fates are intertwined We do have audience members who are asking , why was this opinion leaked?

And I've been very, very grumpily saying on every space I can that to talk to too.

much about the leak is to distract from what is actually happening.

But I guess it's worth speculating for a minute if you all have thoughts about and this is an extraordinary leak.

By every metric, a 98 page draft document authenticated by the court.

Thoughts on how it leaked and why I'm going to just go ahead as the non-lawyer on this bill and say that I would just very much agree with you, Dahlia, that the leak is extraordinary and a lot of ways it says a lot about where our politics are.

There are a lot of , it could have come from and which side it's trying to to guarantee.

But I just sort of think that the thing that has to me with the leak is that the it's the intensity of the opinion that I think to some extent has woken people up.

And I just think that speculating over the leak and why is less important than the fact that I think many of us who have , anybody who actually listened to the arguments and Dobbs basically knew that something like this was coming.

I think sensationalist leak to get people to get out in the streets to protest And I think that's kind of what I want to say about completely with Susan about that.

Why we haven't had people protesting in front of the Supreme Court from December to the leak is important, not just the sensationalism of it, but what it says about the court and its dynamics.

And and I think it to the absolutism of this opinion.

So there are lots of theories I happen to subscribe to the theory that I think this be leaked from someone in the conservative camp because I think the absolutism of this opinion probably prompted at least one justice to be like, whoa, like , I wasn't ready to go this far this fast.

Like, you want to drive a Tesla , Sam?

I would prefer to be in a dodson.

And I think maybe someone said, you know, I'm going to jump ship and defect, lose a majority.

And so, you know, with that, it could be the case that someone dropped this opinion for the purpose of clear what the original conservative position is in case the actual final opinion is more moderate, more tempered.

That up some ire against the wobbly conservatives, who reneged on the full promise of what could have been or alternatively.

I think this is the more intriguing perspective it could be a way of lashing that wobbly conservative the mass and keeping him onside for this very absolute opinion, because you've basically made clear what that opinion is to the public.

And then I think some ancillary benefits you've normalized the outcome, like if it's less extreme than this.

We're going to have media news outlets saying that this is a victory when it's obviously not a normalize what could have been and perhaps ways of foundation for people being happy.

In June We have hit our time here and there is so much to talk about and I am really honored and humbled to be with Susan Matthews with Melissa Murray , with Jessica Bruder.

Each of these three panel ists has been doing yeoman's work to make visible or something that, as I think we've all agreed here, was already a five alarm fire long before this week.

So I want to thank all of them for joining us.

I want to thank all of you who joined us today and the good folks who put questions hard questions to our panelists.

I want to thank Crosscut for inviting us to be here and to have this incredibly timely discussion and to our Amicus listeners.

who tuned in.

Also, I think really wanting to know context and scope and what to worry about and what to do.

I think we got a lot of that Before we sign off, I want to mention only that there are a ton of other equally almost equally vitally important, terrific fantastic sessions going on at Crosscut and you can find all of them at Crosscut dot com slash festival.

Please, please, please join my friends in thanking this amazing panel and Crosscut for bringing us together