On the night of May 2, Politico published a draft Supreme Court majority opinion, authored by Justice Samuel Alito, that would overrule the seminal abortion rights cases Roe v. Wade and Planned Parenthood v. Casey. While the draft opinion was from February — and the Court has yet to release a binding decision — the news sent seismic shocks through the nation.
Since Justices Brent Kavanaugh and Amy Coney Barrett were confirmed, activists on both sides of the abortion debate have expected the Court to roll back at least some of the reproductive rights enshrined in Roe, which was handed down in 1973, and Casey, decided in 1992. But many were still taken aback at the sweeping nature of Alito’s draft, especially in light of recently-passed laws in several states that would ban abortion entirely if Roe is overturned.
University of California, Irvine, School of Law Chancellor’s Professor Michele Goodwin joins Berkeley Law Dean Erwin Chemerinsky to talk about how we got to this moment and what a post-Roe legal and political landscape might look like. Goodwin, director of UCI Law’s Center for Biotechnology and Global Health Policy, has written extensively about reproductive rights and the implications for women of the abortion debate, including in the book Policing the Womb: Invisible Women and the Criminalization of Motherhood, and in several articles with Chemerinsky.
Recorded May 9, 2022
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More Just from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
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The Enormous Consequences of Overruling Roe v. Wade
Episode Transcript
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Hello, listeners. I’m Erwin Chemerinsky, Dean of Berkeley Law, and this is More Just, a podcast about how law schools can play a role in solving society’s most difficult problems. On the night of May 2, Politico published a draft Supreme Court majority opinion authored by Justice Samuel Alito, which would overrule the key abortion rights cases Roe versus Wade and Planned Parenthood versus Casey. Well, the draft opinion was in February, and the court is yet to issue its final decision. The news sent seismic shocks through the nation.
I confess that I was shocked at the unprecedented leak of a draft opinion but not at all surprised that the result. The confirmation of Justice Amy Coney Barrett meant that there were likely five justices to overrule Roe versus Wade. The oral arguments in Dobbs versus Jackson Women’s Health on December 1 erased any doubt in my mind as to how justices Barrett and Kavanaugh would vote. They seemed to join justices Clarence Thomas, Samuel Alito, and Neil Gorsuch as a majority to overrule the 49-year-old precedent that protects a woman’s right to abortion.
In the draft majority opinion, Justice Alito declares for the court, quote, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing a national settlement to the abortion issue, Roe and Casey have enflamed debate and deepened division.”
To discuss this with me in this episode, I’m joined by Professor Michele Goodwin, a constitutional law scholar and expert on issues of reproductive justice. She’s Chancellor’s Professor of Law at the University of California, Irvine. She’s director of its Center for Biotechnology and Global Health Policy.
She has written extensively about reproductive rights and the implications of the abortion debate, including her book, Policing the Womb– Invisible Women and the Criminalization of Motherhood. She was recently named to be the prestigious recipient of the 2022 American Bar Association Margaret Brent Award. And I’m very proud that we’ve written many articles together, including about abortion rights and reproductive justice.
Thank you again, Michele, so much for doing this. I guess where I’d start is by asking you, what was your reaction to the draft opinion?
Well, Erwin, like you, I was surprised that there was a leak. But I think that as Stephen Vladeck has said, that’s a story. It’s not the story. And the story is the content, the substance, of this leaked draft opinion. And so I’m not surprised by it, given that I’ve been writing about and documenting in this space for nearly two decades, about two decades. And so I’ve seen this pattern coming about.
But the contents of this draft opinion are really quite chilling in so many different ways– the fact that it is about shrinking a fundamental right rather than expanding one, the turn to citing treatises that supported coverture, which included women as being sanctioned as the property of their husbands and fathers, coverture laws also extended to allowing men to rape their wives, and so much more.
There’s so much that we could talk about within the context of this 98-page draft opinion that is very much unsettling and that is riddled also with errors and some cherry-picking and very selective types of omissions that one finds out, of course, it is a draft opinion, and likely there will be changes. But what I read, Erwin, was really quite disconcerting.
This, of course, takes us to speculation. But what do you think is likely to change now, when the decision is released, which will likely be sometime between now and the end of June?
Well, what’s interesting about that, Erwin, is that– and let me just pause and say, it’s so much fun to be doing this with you. And before we got on, I was just thinking about how tragically we’ve been so prescient in the work that we’ve done together because we’ve written several articles within this space and also about matters of vaccine. And who would have known that there would be a global pandemic?
But I’m doubtful that there would substantively be much that’s changed because there have been subsequent leaks from the main leak. And so there have been Wall Street Journal and other media have reported speaking to and getting information from people who are connected somehow, who have inside information, conservatives who have inside information, that suggest that the justices that are expected to have signed on– their votes are still there, and that justice, the Chief Justice John Roberts, wanted a deal that would basically uphold the Mississippi law, which is a 15-week abortion ban, rather than getting rid of Roe altogether.
And from what the other leaks are is that their– justices on the court, enough of them, five, that see this as their opportunity to completely do away with Roe v. Wade. So I think that, substantively, we won’t find much that changes. There may be matters within the draft that get cleaned up a bit more.
When I was reading the language aloud a moment ago with Justice Alito, and the draft opinion talked about the reasoning being exceptionally weak, I thought of an article that you and I wrote together in the Texas Law Review that defended the reasoning of Roe versus Wade. My sense is that there’s likely five votes to overrule Roe. That won’t change.
I wouldn’t be surprised if the court tones down the language. I was thinking about, if I found a law review article written by a Berkeley Law professor from the 1970s that I disagreed with, I wouldn’t say it was egregiously wrong and the reasoning was exceptionally weak. For majority today, to say that about what seven colleagues agreed to 49 years ago or what five colleagues agreed to 30 years ago seemed to me as exceptional. So I could imagine them changing that language.
Now, it’s possible, as you say, that Roberts could get, say, Kavanaugh, to join him and uphold the Mississippi law but not expressed views as to whether to overrule Roe. I wonder if that would be worse, though, because then it would be overruling Roe in two steps. The first step is overrule viability and allow laws that prohibit abortions after the 15th week of pregnancy, and then another case next year, where it’s a law that prohibits abortions, say, from the moment of conception.
And it would just be better, if Roe’s going to be overruled, to do it now. I also worry that if that happens, the headlines all across the country would be, “Court Does Not Overrule Roe versus Wade,” even though effectively doing just that.
While you’ve loaded so much in there for our conversation– and I appreciate that you have– the first something that you noted, which I did too, the excoriating way in which this draft opinion speaks to colleagues on the court, including colleagues that are still living– that is something that one has not seen. I mean, I have not seen that even as the justices overturn Plessy v. Ferguson. They were far more kind to justices that were willing to allow for second-class citizenship of African-Americans. Brown did not have that kind of dogged type of language about prior justices on the court.
And to your point, I think it’s worth noting that we’re not just looking at 49 years ago or looking at 30 years ago. Quite honestly, we also have to pay attention to the cases that affirmed Roe and Planned Parenthood v. Casey afterwards. I mean, even just a couple of years ago, the last term, in which Justice Ruth Bader Ginsburg sat on a case that involved abortion, was in the 2019-2020 term.
So that when Justice Alito suggests that, well, this is reasoning that was poor– and, in fact, he didn’t just say, poor, right? He said it was egregious. It was weak, et cetera– and points to 49 years ago– well, I mean, two years ago.
And I think that if we engage in this conversation about just two years ago, it really exposes how, in many ways, this was set up to be this way– that with Justice Amy Coney Barrett coming onto the court, it’s not as if something new has occurred in terms of jurisprudence new, medical information that we have with regard to abortion, any of those things. We just simply have a justice whose common to the bench who was purposefully chosen out of– to help fulfill an ideological agenda.
And then you mentioned about, well, would it be better, perhaps, to just– this kind of approach, it kind of reminds me of the southern strategy and as people talk about the difference between overt and covert forms of racism, that you know exactly where you’re standing and what you need to fight against when it’s overt. And it’s far more difficult to actually see where the guardrails are and what you need to do and how you need to strategize when that kind of racism is no less pernicious but happens to be covert.
And that’s part of what we see here, and that’s also what part of the pushback is against the Roberts strategy, right? If the Roberts strategy is just, hold on to the 15-week Mississippi ban, that effectively does, in fact, overturn Roe because, in Roe v. Wade, it left the decision-making to a woman granted in consultation with her doctor at that time, but to a point of viability. And so 15 weeks is weeks before viability.
And then more could be said about that, but I want to let you get to the next question, Erwin, because we could just even talk about all of the confusion around viability because in reality is that we really don’t know when exactly viability is. It’s different in every circumstance. There is no guarantee at a particular time that there actually is viability. But enough of that for now. We could perhaps get back to that.
But no matter what, we know 15 weeks is much earlier than the earliest possible point for viability, let alone the Texas law of six weeks, or the Alabama law that prohibits abortion from the moment of conception. As I said to you, the focus of this podcast series is what law schools can do to make a difference.
And to get there, let me ask you, assume that the Alito draft opinion becomes the final decision, and the Supreme Court overrules Roe and Casey. What will it mean for abortion in the United States? Because I think it’s the predicate to getting into, well, what can law schools do about it?
Well, that’s right. So if, in fact, we see a version of this opinion as the opinion, then it means that there are trigger bans that will go into effect at the time in which this becomes law. There are states that are poised to do away with Roe v. Wade altogether in their states. There are states that have myriad bans associated with various times. Texas already has a six-week ban that makes no exceptions for cases of rape or incest.
There are 15-week bans, 12-week bans, et cetera. There are also states that are fashioning themselves as sanctuary states, where they are further embracing how they can make sure that reproductive health care services are available not just for the people who are in their states but also people who are traveling.
And then we have a bit of a mishmash and the potential for criminalization, civil punishments, et cetera. That is to say that there are legislators that are saying that they also want to ban things such as telemedicine associated with abortion screenings or medical appointments, that they want to ban prescription-based, medication-based abortion, which is predominantly used. About half of abortions that are taking place in the United States are ones that are performed through receiving pills.
And there are states that will be requiring that individuals who want to terminate a pregnancy have to be in person with their doctors, even though the Food and Drug Administration has said that that is not necessary. And then there are the specter of criminalization. There are states that are proposing criminal punishments of people who violate what will be myriad versions of various laws to try to chill people’s access to abortion and to make sure that people don’t have access to being able to terminate a pregnancy.
And, of course, in addition to what you mentioned, I think that those politicians who gain by being anti-abortion aren’t going to stop there. Missouri already has a bill that’s been introduced that would make it a crime for a woman to leave a state to get an abortion. I think we’ll see laws that say that a married woman can’t leave a state to get an abortion without notice to her husband.
I think we’re going to see laws that prohibit contraceptives that act after conception, like the IUD and the morning-after pill. I think we’re going to see regulation of in-vitro fertilization, prohibiting there being embryos that aren’t implanted and the like. And again, to me, all of this is motivated by the political gain of those who oppose abortion, that they’re not going to give up this issue.
No. That’s absolutely right, Erwin, and because that’s next level. So I’ve been calling this the period of the new Jane Crow. So Pauli Murray, who published in 1945 in the California Law Review– I mean, this is really stunning– African-American woman, 1945, graduated first in her class from Howard Law School. Thurgood Marshall famously said that the book that she wrote on race laws was the Bible of the civil rights movement, key to both civil rights victories with regard to race and also civil rights victories with regard that’s sex in America. Before Ruth Bader Ginsburg was at the ACLU, Pauli Murray was at the ACLU.
And I mentioned Pauli Murray’s name because she wrote about Jane Crow. She published in the California Law Review in 1945 speaking about sex and discrimination in employment. And I see this period as a new Jane Crow, meaning all of the things that you’ve just talked about, Erwin, which one could substitute sex for race, and that’d be Jim Crow.
Well, we’ll see aspects of that now, all of that kind of policing of conduct and behavior and the expansion beyond abortion to these various other spaces, be they contraception, IUD access, traveling interstate. That reminds me of the Mann Act and so much more. And so I think that there’s something that actually we could learn from looking at the very prolific laws that were enacted during Jim Crow to predict what’s going to be coming next.
I can’t resist mentioning then– Pauli Murray came to Berkeley, where she got an advanced law degree, and Berkeley is very proud of her affiliation with our law school. Let me ask you, what can a state like California do? You’ve done a wonderful job of describing what’s going to happen in so many states, likely more than half the states, which will outlaw all or virtually all abortions. California, New York, Connecticut, Illinois are going to continue to protect a right to abortion. What can they do?
Well, states like California, New York, Illinois, Colorado, et cetera– I can continue along the path that they’ve been in. So in California, there are constitutional protections for privacy, reproductive privacy, but there’s more that can be done. As California is articulating itself as being a sanctuary state, it can provide the economic resources that are going to be necessary for people to be able to come to the state in order to be able to get the reproductive health care needs that they desire.
They can also make sure that those kinds of services are even greater protected for people who live in the state of California. And they can also do the kind of policing that’s necessary to make sure that practices that would otherwise harm reproductive justice interests are not taking place. It’s been in California where, for example, women who are incarcerated were being coercively sterilized. That’s the kind of thing that we don’t want to have happen in the state of California. Just a couple of years ago, there was a woman in Kings County who was being prosecuted after having a stillbirth, again something that, in the state of California, we should be protecting against.
And so it’s not only what we can proactively do to make sure that we have– that there are the resources available for people who need them to be able to get the kinds of health care services that they want and deserve. But at the same time, we can make sure that we’re not also investing in some of the kind of punitive, prurient kinds of discretionary kinds of harms that we see taking place in other states.
And so there’s so much that’s sometimes left up to discretion, and we need to police that too. And here, I’m talking about police and prosecutors, who also are part of the broader scheme. I mean, if we think about this as more of a marathon than a sprint, there’s been deep economic investment and with legal teams to get us to the place where we are with the Supreme Court and what’s been happening at state legislatures. And that kind of investment is also taking place with pharmacists, with people in police forces, with DAs. They’re getting the same kinds of messages to use their discretion in ways that police women’s bodies. And we need to be mindful about that.
All of those are such good points. I just want to highlight what you began– the importance of California providing resources to women in states where abortion will be illegal. I got an email from somebody very upset after the draft opinion was released. It said, what can we do in California? And I said, one of the most important things, at least in the short term– make sure that there’s resources there for poorer women, for teenagers in states where abortion is illegal to be able to come to where abortion is legal.
What you and I have been talking about is a situation where abortion will be illegal in over half the states but legal in other places. Well, women with resources who wanted abortion will travel to places where abortion is legal. That’s what occurred before Roe versus Wade.
I think the statistic that we put in our article was that before New York became the first state to legalize abortion in this country, about 25% of the abortions in England were performed on American women. It wasn’t poor women who were going to England for abortions. And it’s not going to be the poor women and the teenagers in, say, Mississippi who can travel to California. So having resources available so that they, too, can have choice will be very important.
And you point to police and prosecutors. When abortion becomes illegal in a number of states, a lot’s going to turn on, how is policing done? What do prosecutors do? And if police and prosecutors are aggressive, then we really do have the frightening prospect of what you talk about. Do all miscarriages, all stillbirths, get treated as possible abortions, and women are treated as possible criminals? There are frightening stories of women with ectopic pregnancies and doctors being uncomfortable treating them when there’s laws that prohibit abortions.
That’s right, Erwin. And to make sure that we’re understanding this as in the vein in which we write, have written about these issues through an intersectional lens, when we know about how histories of racial profiling take place in the space of criminal punishment, one can only imagine what that looks like within a context of a post-Roe world, where Black women are having miscarriages and also stillbirths.
And, in fact, we need not look to the future. We can look very recently to the past, where we’ve already seen in the state of Mississippi, 16-year-old girl named Rennie Gibbs, African-American, prosecuted for depraved-heart murder for having a stillbirth.
Regina McKnight, who lived in North Carolina, 23 years old, a farm worker, who confided to her medical providers that after her mother’s death, she began to self-medicate. She had a stillbirth. Now, the stillbirth was not, as it turns out, related at all to her self-medication. But she was nonetheless prosecuted for murder because she had a stillbirth. And so these are very important issues that we’re both talking about, Erwin. And they really have to be at the forefront.
And when you talk about intersectionality, it’s important to emphasize that prior to Roe, mortality and morbidity from illegal abortions was vastly higher for women of color than white women. So when we talk about the effect of illegality, we can’t ignore that racial dimension.
That’s right. And even in the state of Mississippi right now, with the most recent data gathered by the Mississippi’s Department of Health, 80% of the cardiac deaths during pregnancy occur to Black women in that state. In Whole Woman’s Health v. Hellerstedt, Justice Breyer offered a statistic that is well supported, and it is that a woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion in the United States.
Well, in Mississippi, if you’re Black, it’s not, you’re 14 times more likely to die. You’re 118 times more likely to die by carrying a pregnancy to term than by having an abortion. And just nationally, Black women are 3 and 1/2 times more likely to die than their white counterparts due to maternal mortality. And it’s worth noting in states like Mississippi, Alabama, Louisiana, Texas– these are places that rank as the deadliest places in the developed world, in the entire developed world, for a woman to be pregnant.
And so when we’re looking at what a post-Roe world looks like, for many women of color– and it is not an exaggeration– they’re looking at a potential death sentence. And I know that sounds alarming, but the data is alarming, and it’s not data that I’m making up or that you’re making up. But it’s data that we know and that we gather from their State Department of Health. One needs to look no further than the data coming out of Governor Abbott’s cabinet or that that’s in Mississippi to learn how deadly it is already for Black women.
We’ve been talking about– let’s refer to it a post-Roe world, and tell me about the post-Roe world where abortion is legal in some states and illegal in some states. Is there a possibility of a national law that would protect the right to abortion everywhere in the country or prohibit abortions everywhere in the United States?
Yes. So both are being talked about. So over the weekend, Mitch McConnell told reporters with USA Today that if Roe fails, he would not object to there being a national ban on abortion. It’s something that’s on the table. At the very least, that’s signaling to a base, and it’s signaling to donors in a time that’s leading up to midterm elections.
On the other hand, there’s the Women’s Health Protection Act. Within the next week, it’s going to be voted on. It’s expected that it will not pass through the Senate. But at the very least, it will make clear who the senators are and members of the House who are against codifying Roe v. Wade and those who support codifying Roe v. Wade. And that will be very helpful information for voters.
And it’s worth noting that, in this draft opinion, Justice Alito says that these issues can be resolved by sending them back to the states and through voting, although the point that I would make is that that’s a bit more illusory than real instances where there is significant voter suppression that’s taken place, that has targeted people of color, and where there’s been the dismantling of key provisions of the Voting Rights Act by the Supreme Court.
In terms of Congress, I assume what Congress would do is use this power to regulate interstate commerce to protect a right to abortion or to prohibit all abortions.
That’s right.
And I think it could get through the House of Representatives now in terms of a bill to protect abortion rights. But I’m sure that Senate Republicans would filibuster it. And at least at this point, the Democrats show no willingness to have a majority to change the rules with regard to the filibuster. When you mentioned voting rights that came up in the Senate, Joe Manchin and Kyrsten Sinema refused to go along with the change in the filibuster.
Well, if you imagine a Republican president being elected in 2024 and a Republican Congress, then they would use that same power to try to adopt a law prohibiting abortions everywhere in the country. That would then preempt laws like California’s that allow abortion.
And then the question would be, would the Democratic senators filibuster to block it? I think so. Would the Republicans, though, be willing to change the rules of the filibuster in a way that the Democrats aren’t to be able to achieve this to please their base? And so it’s possible to imagine that if Roe is overruled in just a couple of years, there could be a national law that prohibits abortion everywhere, including in a place like California.
That’s certainly possible with the scenario that you lay out. And as we just touched on earlier in the program here, what’s at stake are other key aspects of how we think about our democracy and rule of law that also are bundled into this particular moment. You mentioned voting rights and the fact that we’ve not been able to secure more robust voting rights because of this very same issue.
And I think that there’s a lot that we could learn from what was being signaled at the confirmation hearings of Judge Ketanji Brown Jackson in terms of next steps and next places that will be sought after to try to encroach upon fundamental rights and really shift what we’ve seen in terms of an expansion of rule of law that’s more inclusive of LGBTQ equality and so much more.
Well, let me ask you this. This is where we started and the key question– what are the types of things that law schools can and should do about this? Our students really want to get involved, and they really want to make a difference. What do we tell them? And what can we as institutions, law schools, do?
So there’s a lot, again, for us to learn from the Jim Crow era and how students deeply invested in the blossoming of Democratic values in our nation. There were students who volunteered. They went south. There were students that put in pro-bono hours with law firms, with groups like the NAACP. They worked with SNCC. They worked with CORE. So there are lots of opportunities for law students to think proactively about getting involved with organizations that are seeking to fight these laws that are being proposed or that have already been enacted.
Law students also can continue to do some of what it is that they do that’s actually really important, which is to research and to write about these issues as well. That really does matter. When Justice Thurgood Marshall spoke about Pauli Murray as being so central to the civil rights movement, he was not referring not only to her book on race laws, but there were actual papers that she wrote while she was in law school that were used when they argued Brown v. Board of Education, which I think is really important.
I think that law schools can also invest in clinics and in programs that further expand students’ understanding and learning as it relates to reproductive health rights and justice. At Berkeley, I know that you have programs that exist already in this domain. At UCI, we founded the Reproductive Justice Law Clinic. It was the second one in the country. And so programs like that are critically important.
And I’ll add one other piece too, Erwin, which was the inspiration for me starting the Reproductive Justice Law Clinic, which is so important for law students to be able to understand how they as lawyers and preparing to be lawyers can meet the demands of these times. And so we’ve talked about criminal punishments, for example.
There have been people who’ve been punished, sought after, by police and prosecutors because they fell down steps while pregnant or attempted suicide while pregnant, or states like Texas that have tried to get rid of a pregnant person’s end-of-life decision-making. In all of these spaces, there’s the need for good lawyers to be there to work on behalf of women, girls, their families, and organizations that are seeking to uphold civil liberties and civil rights in this domain.
Those are wonderful suggestions. Let me take each of them and talk a bit more about it. Your first was that students can travel to states where abortion is illegal or will be if Roe is overruled. What should they do when they travel? What are they going to try to accomplish by their travel?
Yes, well, in those states– look, there are people who need help today, even, being escorted into clinics. Something that’s not talked about very much is that there are people who show up outside of clinics, and they threaten and they harass people who are seeking legal reproductive health care. And students can travel to those states and be escorts and help people in that regard.
Students can also help legal teams when they arrive in places like Mississippi and Texas, teams that know the state very well and that are working within those states to try to defeat existing laws and to try to preempt laws that are being discussed. Well, they can volunteer and work with those teams and organizations, organizations like the American Civil Liberties Union, organizations like the Center for Reproductive Rights.
They can also work and volunteer with abortion funds. These are organizations that typically don’t get very much press, but they’re working with the poorest of American women who are seeking reproductive health care services.
Those are great suggestions. Another thing you mentioned was working pro bono with law firms, with organizations like the NAACP, Planned Parenthood. Some of this is going to be that there can be litigation in state courts under state constitutions. States can always protect more rights than the US Constitution. California, it’s clearly established under the California Constitution.
And I think one area for litigation in the future is going to be to try to protect the right to abortion in state constitutions. And, of course, if our prophecy, unfortunately, comes true that states are going to adopt a whole range of other laws limiting reproductive health care services, each of those needs to be challenged in court. And the lawyers doing it could be tremendously helped by law students who are volunteering their time.
Absolutely. Amicus briefs, doing research, writing the memoranda, and these are invaluable. They really are. And we’ve seen this just through our Reproductive Justice Law Clinic at the University of California, Irvine, where we’ve worked with Planned Parenthood, and worked with ACLU, and worked on some of the issues that have come to national attention in recent years prior to these more recent attacks against abortion but that relate to undercover videoing of Planned Parenthood doctors and actually doing the kind of work that effectively changed California State law.
So students can be central to that because those were students who were doing the research for us and then we were able to move those agendas along. And the organizations were absolutely grateful, keeping in mind that so many of these organizations don’t have the economic resources to just be able to pay and hire on their own teams of lawyers to do this work.
So the pro-bono work that comes from law firms and comes through the work of law students is absolutely crucial. It’s absolutely invaluable and, I would say, connected with that policy work too, thinking about areas in which laws could be enacted to further protect people in that state.
And that relates to you also mentioned how important it is that students do research in writing. I would imagine this would include law review notes that they write, papers for seminars. So what should we do to guide our students to writing the most useful law review notes or papers for seminars? How will they get suggestions of where their research and writing can be of most use to lawyers and to legislators?
So here’s– well, I’ll say that professors need to avail themselves to students, students who may be thinking about, I might want to write a project on this. Well, they need advisors. They need professors who are willing to sign on and be mentors and advisors. So that’s one thing that law professors can do, avail themselves.
The second thing is to be a sounding board for students who want to write in these areas and to allow students to be innovative in terms of how they’re thinking about these projects because that’s critically important too.
And then I think it’s really important that we’re all rigorous in that we bring excellence to this work. This is demanding work. It takes rolling up our sleeves, and it takes significant research. But the benefits of it, the rewards that come from it, are significant in terms of the kinds of conversations that we can further and, more than conversations, the types of civil liberties and civil rights that can be affected by this important work.
I’ll tell you, Erwin, that a paper that I wrote during my second year of law school ultimately served as the foundation for the first book that I wrote, a book that was very, very well received in many different corners. And so there’s so much value that law students can bring by doing research, by being innovative, by allowing themselves to think outside of the box within these contexts.
For example, very recently, I heard law students talking about, well, what about abortion services being provided on reservations? Would that be a way of getting around what could be state laws banning abortion? Innovative idea, great idea. Follow it up. Do the research. Roll up your sleeves.
And here, I will also say that we need a thousand flowers to be blooming. So don’t worry about preemption or somebody else is thinking about it. Find new ways to express these important ideas that you have.
You ended your list of suggestions by talking about investing in clinics, and you talked about your very impressive clinic. Could you give a couple of examples of the projects that your clinic is doing right now?
Yes. So our clinic has worked on matters that– there are a variety. So one of them was after Planned Parenthood had been the subject of undercover, nonconsensual video surveillance, we worked on briefs. We’ve had two briefs go to the Ninth Circuit, in those cases, arguing that there was no First Amendment right that could be articulated by those who violated California law to do that. Those briefs were– well, ultimately, the decisions came out favorable to the side that we were articulating in those briefs. And we were doing this work on behalf of the position taken by Planned Parenthood.
We’ve also worked on cases involving crisis pregnancy centers. These are centers that have been established that ultimately do not provide, typically do not provide health care services. But they’re organizations that people who are seeking abortions, women and girls who are seeking abortions, may come to, expecting that they would be able to receive abortion services.
Quite often, these are centers that provide false information and very damaging false information to the people who seek services there. And we’ve done projects with the California Women’s Law Center to track how many of these centers are actually operating in the state of California, whether they are actually violating California laws by what it is that they are doing, are they being compliant with California law, and so forth.
We’ve worked with the ACLU on projects that involve breastfeeding in the state and making sure that women are being provided the services that they deserve under law, and that they’re lawfully provided under law, and whether those are services that they’re actually receiving.
So we’ve worked on a variety of projects, including another one that involved women who were coerced into plea deals of 20 years each after admitting to taking illicit drugs during pregnancy– a variety of topics across a variety of areas within the reproductive health rights and justice space. And our students have really benefited from the work that they’ve done in the clinic.
It’s so impressive and so important. All too quickly, the time we have for this conversation is running out. I want to just end by asking, what message would you give to the law students who are listening to this?
Well, the message that I would give, Erwin, to the law students who are tuning in is to not give up hope. There is much to be inspired by Goodman, Chaney and Schwerner– sad cases, right, of three young people who gave of themselves for the liberation of Black people and the ability to be able to vote, Mississippi burning the film that basically memorialized their experiences when they were in Texas and died, having given themselves to fend for the civil liberties and civil rights of African-Americans.
Not every case ends so tragically, but the point being that there is hope because, in the wake of their efforts, in the wake of efforts in the 1950s and ’60s, we saw coming out of that a 1964 Civil Rights Act. We saw a 1965 Voting Rights Act. We saw our country come into a more enlightened space. We saw our Supreme Court respond in kind. I think that there are opportunities for us to actually shape the kind of America that we deserve. And I think it’s important that we not lose hope.
Very recently, Erwin, I’ve been thinking about the communities that exist in Canada that historically have been Black. Those communities, more than a few, Erwin, were started by Black people who dared to walk out of slavery during the period of Antebellum, chattel slavery in the United States. And without the aid of cars or planes or fancy boots, Black people who had the sense of freedom demanded that they get it, and they walked to freedom. And it’s stunning to think that you could walk all the way to Canada, but to be so determined that your humanity mattered.
And so there are many different expressions of hope that we have. And I think it’s important that we not lose sight of those and we not lose sight of this very valuable opportunity that we have. It is a privilege to be able to do this work in law. It is a calling, and I think we have to put it to good use. And I think this is an opportunity for students to put their knowledge, their talents, their passions, their skills to good use for us all.
That’s so well and powerfully put. And the guy would simply say, we really have only two choices– either we give up, or we fight harder. And since we can’t give up, we have to work harder and better than we ever before. And if Roe’s overruled for reproductive justice, it’ll never be more important than it is now in the years ahead.
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Michele, thank you so much for this conversation. I’ve been joined by Michele Goodwin, a constitutional law scholar, expert on issues of reproductive justice. She’s Chancellor’s Professor at the University of California, Irvine, School of Law, and the director of its Center for Biotechnology and Global Health Policy.
I hope you’ve enjoyed this episode of More Just. Be sure to subscribe wherever you get your podcasts. Until next time, I’m Berkeley Law Dean, Erwin Chemerinsky.
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