Reproductive Rights in State Constitutional Law

The following is a transcript of the panel, “Reproductive Rights in State Constitutional Law,” which took place at Vanderbilt Hall, NYU School of Law, New York, New York, on Friday, Feb. 9, 2024, as part of the symposium, The Promise and Limits of State Constitutions. The transcript is edited for clarity.

This panel focused on the state constitutional landscape of reproductive rights post-Dobbs. The panelists identified emerging issues in state constitutional litigation over reproductive rights, discussed recent and upcoming ballot referenda to enshrine abortion rights in state constitutions, and assessed the promise and limitations of a state-based approach to abortion rights.

Speakers:

• Michele Goodwin, Linda D. & Timothy J. O’Neill Professor of Constitutional Law and Global Health Policy, Georgetown University Law Center
• Diana Kasdan, Director for Judicial Strategy, U.S. Programs, Center for Reproductive Rights
• Chief Justice Barbara J. Pariente (ret.), Florida Supreme Court
• Mary Ziegler, Martin Luther King Jr. Professor of Law, UC Davis School of Law

Moderator:

• Kate R. Shaw, Professor of Law, University of Pennsylvania Carey Law School

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Kate R. Shaw: Just over a year and a half ago, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, eliminating the federal constitutional right to terminate a pregnancy that had stood for nearly half a century. Very quickly on the heels of Dobbs, a number of states moved to restrict abortion, [with] over a dozen imposing total or near-total bans on abortion and a number of others severely restricting or criminalizing abortion.

Yet there has also been a countervailing reaction in state legislatures via direct democracy initiatives and referenda, and also in state courts. On this panel, we’re going to take stock of all of that, serving the present landscape and discussing what the future might look like. Let me introduce the superb group that the Brennan Center has put together on this topic, and then we’ll get right into it.

I’m your moderator, Kate Shaw. I’m a professor at Penn Law School, after many years teaching at Cardozo Law School. Starting at the end to my right, is Diana Kasdan, the director for judicial strategy in U.S. Programs at the Center for Reproductive Rights, where she leads a team that produces original legal research, analysis [and] reports, and authors and organizes amicus briefs and campaigns on the topic of developing strategies to build constitutional protection for reproductive rights over the long term.

Next is Justice Barbara Pariente, a retired justice of the Supreme Court of Florida, where she served for 21 years, including a turn as chief justice. She’s the recipient of numerous awards and honors, the American College of Trial Lawyers Sandra Day O’Connor Jurist Award among them. She has written on the system of merit, retention, and selection in Florida, and most recently has spoken out — and we’re going to hear a lot about it — on the topic of abortion bans in Florida.

Next is Professor Mary Ziegler, the Martin Luther King Jr. Professor of Law at the UC Davis School of Law. She is one of the world’s leading historians of the abortion debate in the United States. She has authored six books on social movement struggles around reproduction, democracy, and polarization. Her most recent book on the history of the struggles over fetal personhood won her a Guggenheim Fellowship for the years 2023 to 2024.

And finally, Professor Michele Goodwin, the Linda D. and Timothy J. O’Neill Professor of Constitutional Law and Global Health Policy at Georgetown University Law Center. She is an acclaimed bioethicist, constitutional law scholar, and tremendous public intellectual. She too has won too many awards and distinctions to list them all, but I will just mention two: she’s the recipient of the 2023 California Women’s Law Center Pursuit of Justice Award and the 2022 recipient of the American Bar Association’s Margaret Brent [Women Lawyers of Achievement] Award.

OK, let’s jump right in. I’m going to start with a question for you, Diana, which is — I want to begin by talking about direct democracy in the wake of Dobbs — that is, efforts to use devices like ballot initiatives and referenda to enshrine reproductive rights and freedom in state constitutions. And then also about responses to those efforts to expand or enshrine rights and efforts to roll back or curtail rights using similar devices. And as folks may know, reproductive rights have actually had a remarkable track record as a subject on the ballot in the post-Dobbs era.

Diana, folks may have a general sense of what has transpired in states like Kansas and Michigan, but can you give us a better sense of what efforts to amend state constitutions to enshrine reproductive rights have looked like, and also [efforts] to curtail reproductive rights, and just in general, how those efforts have fared in a more granular way than I just surveyed?

Diana Kasdan: Hi. Thank you for having me on this amazing panel. I’ll just do a quick landscape review on that. I think I’d start off by saying that, just in case it’s not clear to anyone, before Dobbs, there were no state constitutions with reproductive freedom or abortion rights amendments. There were privacy amendments that were passed. There were state equal rights and antidiscrimination amendments. But there were not reproductive freedom/reproductive autonomy amendments. That has all been a consequence of the response to Dobbs, in terms of direct voter responses or state legislative responses.

Kansas is kind of the beginning of the story. There had been a legislatively proposed amendment in that state to try and undo constitutional protection, which the Kansas Supreme Court had recognized in the Hodes [& Nauser v. Kansas] decision — amazing decision that was discussed earlier. So the plan was they were going to enshrine a constitutional amendment that said, “No. That’s wrong.” [Then] Dobbs came down. And it was clear that rolling back and taking away half a century of reproductive autonomy rights was not well received. And Kansas voters came out in droves and overwhelmingly said, “No, we are keeping our constitutional protection.”

Where it went from there is actually seeing positive, proactive amendments being successfully passed. The count rate [as of Feb. 9, 2024] is we now have had seven ballot initiatives or amendments voted on, and four of those are putting in place reproductive freedom/reproductive autonomy constitutional amendments. And they vary in the language a little. Some are quite expansive and talk about [the] right of self-determination. Others are more specific and talk about a right to choose abortion, and, you know, childbirth, and contraception, and detail it. Some have the standard of review built in, which is actually an interesting thing, right? Being very clear that basically strict scrutiny would be required if legislation was passed that infringed on that right. So now we have California, Vermont, Michigan, and Ohio all have passed these amendments. And at the same time, Kansas, Kentucky, and Montana were states where there were efforts to roll back protection or block protection. And those were all defeated. So that’s what’s happened so far.

And then looking forward, the counts always change, but I think it’s basically about 14 states right now do have some kind of initiative in process, whether it’s a voter initiative or legislatively referred. Some — I think New York and Maryland — have already gone through the legislative process. So those will be voted on. I won’t talk about Florida because we have Judge Pariente here. That’s got[ten] a lot of attention. So that’s one we are hoping will be voted on soon.

And then I’d say, after that, there [are] a lot of states where it’s not an option. So, again, rough count, we can — and, oh, I should say, State Court Report just put out a wonderful new resource map that shows all the ballot initiatives, past and pending. And they have other resources you can see, is this a state where it’s going to be voter-initiated or [initiated] legislatively? But the reality is, a lot of the states that have criminalized and banned abortion, a vote — a direct vote by the voters, that doesn’t have to go through a gerrymandered legislature — is not going to be an option. So I think most of the states where it is an option and where there’s been criminalization, banning of abortion, there’s — some of that process has begun.

Shaw: That’s a great overview, and actually a perfect pivot. Diana just alluded to this, but Justice Pariente, I’d love to bring you in here specifically on the topic of Florida. Can you fill us in on the efforts to put an amendment on the ballot in Florida? What would that do? What is its status? And what are the obstacles?

Barbara J. Pariente: Thank you very much. And I want to thank the Brennan Center and the State Court Report for putting together these two days of just amazing panels. And I’m thrilled to be with this great panel now. I’d love to just talk to everyone on this panel forever. (Laughter.)

First of all, I want to go back [and say] that Florida has had an explicit right to privacy since 1980. And it was interpreted by what would have been seen as a “conservative,” supreme court — I never like to use those labels, but they were all men. Six white men, one African American. And they held that the right of privacy included abortion rights. And in that case, it actually had to do with whether a minor had a right to have an abortion.

Fast-forward, during the time that I was on the supreme court, which spanned about 20 years, we had several cases come up in front of us. And in each case, a majority of the court ruled that our privacy amendment did include the right to abortion. There were laws that tried to — there’s a 24-hour waiting period. Very great burden on women having to come back a second time. Mandatory ultrasounds, where the physician was required to show the pregnant person the results of the ultrasound. So we now go — fast-forward and Dobbs comes out. And the Supreme Court of Florida has really changed completely since I and my colleagues mandatorily retired in 2019.

And so seeing the handwriting on the wall for Florida — well, it didn’t take much, because immediately after Dobbs, the Florida legislature passed an abortion ban at 15 weeks. But that was being challenged. If it was upheld, it would go to six weeks. And that led to — that litigation is actually currently before this Florida Supreme Court. So right after Dobbs, a group of us got together with the ACLU and other organizations to craft an abortion amendment, which has gotten necessary signatures. We have a citizens’ initiative process. It will require 60 percent of registered voters in order to pass it. It has to also get through the Florida Supreme Court, not on the merits but whether it is clear and unambiguous [and] whether the ballot title is confusing or is it misleading. And if the Florida Supreme Court approves it, then it would go on the November 2024 ballot. And it would take 60 percent of the voters to approve it. That’s where we are in Florida. We’re cautiously optimistic, because the oral argument that took place this week — although, again, our chief justice calls fetuses “little human beings.” So you can sort of see where they are philosophically. But whether they’ll let the voters decide, we will see. And they have to make a decision by April 1 legislatively. That’s the status.

Shaw: Thank you so much for that. And I want, Michele, to bring you in here. So we’re talking about ballot initiatives, which can allow for the circumvention of badly gerrymandered legislatures. But they don’t exist in every state. And states have different rules and thresholds, and also different roles for gatekeepers, right? For whether a state official needs to approve either the title or the content of a ballot initiative, whether the voters just have to, by a majority vote or a 60 percent or more supermajority vote, actually approve a ballot measure. So there’s a huge range.

But just as a general matter, whatever the specifics in any state, all of this is happening against the backdrop of the dismantling of voting rights that we have seen in recent years. And so, Michele, I’d love to hear you come in on that dismantling, and what that tells us about the kind of promise and also limitations of direct democracy in the sphere of reproductive rights and justice.

Michele Goodwin: Well, thank you so much, Kate. And I want to echo Justice Pariente in terms of gratitude for those who are hosting this event today, including the NYU Law Review students. And I also want to thank the staff who fed us today. That’s so important. Thank you all so much, for those who are still in the room.

You know, it’s such an important question because it’s really inspiring to see, post-Dobbs, what has taken shape, and that important work that’s been led by the Center for Reproductive Rights, the ACLU, and other organizations working on the ground, and many of the organizations that are typically not in the news but that have been working at [the] grassroots level for a very long time.

At the same time, it’s important to recognize the efforts of voter suppression that have taken place — a muscle that has been worked so fiercely, so strongly since the closing of the doors towards the Reconstruction. And I think we take so much of that for granted. You know, if we think about the first Reconstruction as being the 13th, 14th, and 15th Amendments — which they were — a real time of reconstructing our Constitution, which at another conference we could talk about that. And then think about that second Reconstruction as [the] ’64 Civil Rights Act, [the] ’65 Voting Rights Act, and then ’66 attention towards Medicare, which [is] really important and is ignored in terms of what [President] Johnson did with that.

I mention those because we could take for granted that states like Mississippi, Alabama, Arkansas have been with the program, right? That since Reconstruction, they’ve just been down with, you know, Black people being able to vote. And I think what’s been obscured by that has been the effort since post-Reconstruction to deny all sorts of rights. Pauli Murray writes about this in her book on race laws. It’s a book that’s nearly 800 pages, single-spaced, of all of the Jim Crow laws in the United States. If you’re Black, you can’t go in the park. You can’t go in the swimming pool. You can’t play checkers in the park. You can’t play chess. You can’t play billiards. You cannot go into the local bowling rink.

All these things that we’ve ignored — because we don’t pay attention to those. But if you lived in Mississippi, Alabama, Arkansas, and these places, and you know these are all the things that, by law, you cannot do, and you will be fined if you try to do them. And then during the period of Black Codes, if you cannot pay those fines, then you will be tossed in jail, and hence then we get the convict criminal leasing.

I mention all that with the backdrop of voting because this has not been just a new enterprise. It’s been a muscle that’s been worked fiercely. I mean, think about Arnold Schwarzenegger kind of working that muscle of intensity to deny Black voting rights. And it’s interesting, in thinking about the conversation we’re having, because the backdrop of the Dobbs decision is a Mississippi abortion ban. And it’s a Mississippi abortion ban that did not go into effect immediately because there was a district court judge, Judge Carlton Reeves.

And, you know, it’s an opinion that I fangirled, and I think many people did at the time, because if you read the footnotes, what Judge Reeves did was to point out Mississippi’s history of disenfranchising women from being able to serve on juries, have bank accounts in their own name, and have credit cards in their own names. And then specifically, what this meant in terms of Black women, and denying them not only reproductive autonomy through the Mississippi appendectomy, which was coercive sterilization, but also the brutality that they experienced when they tried to vote.

So even while I’m incredibly inspired by the ballot initiatives, and I think that they are urgently important, I think we cannot forget that there are states that have been working that muscle a whole lot in terms of figuring out ways to disenfranchise Black people from being able to vote. And when you think about — and this is one tie-on, and I’ll close out — the Supreme Court’s own work here in dismantling key provisions of the Voting Rights Act. And what we’ve seen since then — in terms of Georgia, you can’t give anybody a cup of water, a sandwich as they’re standing in line.

And if we’re honest and real about it, then we know that with all of the polling places, literally thousands have been closed in our country in areas where Black and brown people live. And what that then means, when they have to travel into places where they are surveilled and policed to even go into those places and to try to vote. And it’s real. And then we think about the hours that Black Americans have to spend in line trying to vote. If you live in certain neighborhoods — neighborhoods that I live in — you can be in and out. But I know very well [that] if you are poor and you are Black or brown, living in areas where you have to stand in line for hours — we don’t have a voting holiday, so it’s not like those people get any kind of break.

And if you are working-class, no matter whether you’re white, Black, doesn’t matter, after work you’re having to do this. And what we saw very recently in Mississippi, the running out of ballots and then the closing of [polls]. Where? In Black neighborhoods. And so as we talk about these things, we have to needle the thread (laughs), right? Or was [it] thread the needle?

And the last thing I’ll say, as Justice Alito wrote the majority opinion in Dobbs, I found it ironic that in a case coming from Mississippi with this notoriously high maternal mortality rate, maternal morbidity rate, where Black women are 80 percent of the cardiac deaths during pregnancy but are not 80 percent of the female population in that state, when Justice Alito said, just go vote and take care of it. When you think about a state like Mississippi and what Black women have experienced in that state historically when trying to vote, I couldn’t help but see the cynicism in many ways behind that. So thank you so much for that question.

Shaw: I’m tempted to stay on the topic because there’s so much more to say. But I do want to make sure we cover other sites and other sources of contestation and debate post-Dobbs. So let’s turn now from the ballot — both, you know, democracy and abortion on the ballot — to courts. Mary, let me bring you in here. You’re a historian, but you also are obviously very steeped in the present moment. So can you just give us a sense of the landscape in terms of either trends or individual cases involving litigation in state courts under state constitutions around access [to] reproductive rights, and justice, abortion, and beyond, if you want to go beyond?

Mary Ziegler: Sure. I think it’s worth pointing out both trends we have seen and haven’t seen. So one trend we haven’t seen a lot of is litigation stemming from actual prosecutions. There haven’t been the equivalent of pre-Roe cases where a physician is prosecuted, and challenges a law, and [it] goes all the way up to the state supreme courts. I think the premise of this panel tells you a lot about the trends we’ve seen. The trends have often centered instead on proactive litigation, right? So using state courts as a site of expanding reproductive freedoms, as a site of really, potentially even experimenting with reproductive freedoms.

As many of you know, when Roe was the law, there was long a sense that there had never been kind of a dry run for different constitutional theories. And this idea of a privacy-centered right as the way to go had kind of come down almost by default, and then had to be defended for decades, whether it would have been ideal or not. And now we’re seeing, I think — and Diana will speak to this in greater detail — lots of kinds of real-world experiments with different constitutional theories as to why a reproductive right may exist.

Some of those, as Justice Pariente suggests, are happening under privacy amendments. And there is some path dependence that’s here, of course, because when Roe was the law, there was a lot of privacy debate, both surrounding state equivalence of Roe. And Roe’s privacy frame reflected broader concerns about things like data and surveillance in the ’70s. So there are lots of states that have explicit privacy language. We’ve seen some successes in those states, and some failures. Generally, it’s fair to say that in states that have explicit privacy provision, some state supreme courts have been more sympathetic to reproductive rights claims than states that do not have such language.

But we’ve also seen, I think, an intentional effort to move away from privacy frames and to experiment with different ways of thinking. These included equality frames. This was probably the dominant, favored approach among progressive constitutionalist[s] on reproductive rights for some time, going all the way back to 1985, when I was in preschool and Justice Ginsburg wrote an article suggesting that the reproductive rights movement would have been better off had Roe v. Wade grounded its reasoning in [the] equal protection clause rather than the due process clause. So we’re seeing some litigation to advance those theories.

Interestingly, proactive litigation not just in states with very sweeping bands, but litigation in places like Pennsylvania, to challenge more incremental restrictions on things like limits on Medicaid reimbursement for abortion. So it’s important to note that while a lot of the state litigation we tend to think of as happening in states that essentially permit very little abortion, we’re also seeing litigation in states that have either more modest restrictions, [and] less litigation in states with few restrictions at all.

We’re also seeing — and I’m just going to give a very broad overview of this because I know Diana’s going to speak to it later — litigation centered on abortion exceptions. And this tends to be narrower, more incremental litigation. So instead of saying, “This state has a constitutional reproductive freedom inherent in its state right to life, or its state right to privacy, or its state equality guarantee,” this litigation often centers on first clarifying the meaning of existing exceptions, essentially saying, “These exceptions ought to be and, in fact, are broader than may at first appear to be the case.” And in the alternative, if they’re not, that they violate the state constitution.

It’s notable, and it’s interesting to me to see them. If you read the news, those would be the cases you would have heard the most about. So they’re an important piece of the puzzle. But I think they’re also even more politically salient. If this sort of average person has a picture of post-Roe litigation, they’re either thinking of the two Supreme Court cases that will be heard in the spring, or they’re likely thinking of exceptions litigation. So I think exceptions litigation is incredibly important in kind of table-setting for all the rest of what’s going on.

Another thing you’re not seeing a lot of is proactive litigation by people who are opposed to reproductive rights. There’s not much of that happening. We’ve seen some breadcrumb trails left by several conservative justices on state supreme courts suggesting they may be amenable to this kind of litigation later. Whether that’s language suggesting that a fetus is an unborn human being or that a fetus may in fact be a rights-holding person, or that the state’s interest in protecting life is compelling, but that perhaps there’s an independent interest in the fetal person too. In other words, it’s not the state’s interest versus the pregnant person’s interest — there’s a third person here too.

But that hasn’t really been pursued proactively. It’s been just justices vaguely implying they may be willing to go there later. So I think to date, we’ve seen state courts as a place — one of the epicenters of pushback against Dobbs. Like, if you ask me as a historian, you know, if I’m not too old to do it in 50 years, if we’re writing the history of the Dobbs reversal, I think many of the early chapters are going to be about what occurs in state courts. And many of the early chapters are not about — in terms of if you’re writing about the effort to preserve Dobbs or create the firewall to preserve Dobbs, the state courts have not been much of a part of that story so far. And I think that’s revealing and salient. So I’ll stop there.

Shaw: That’s great. And I actually do want to come back to the breadcrumbs later. Diana, if you want to come in now — obviously, [the] Center for Reproductive Rights is doing incredible litigation, in a number of different states. Whatever you want to fill us in on. I think the medical exemptions that Mary alluded to, or obviously folks may be somewhat familiar with a couple of the cases out of Texas, but not everyone will be. So medical exemptions or other kinds of theories that the litigators at the Center for Repo Rights are pursuing. Please, help us understand what the landscape looks like from your perspective.

Kasdan: Sure. Thank you. I’m going to go off script for a minute, because I did want to talk about the medical exemptions case. What Mary teed up is really helpful. But I — just in response to a couple of things you mentioned: the lack of cases around prosecutions of pregnant people who miscarried or are accused of seeking whatever kind of fictional account comes from the prosecutor’s office — those have always been going on. And so maybe going to some of the other panels today, all the problems in our justice system, access to justice — those can be very difficult cases to make it up to a state supreme court. These are people who are deciding whether they’re going to take a plea, go home to their family.

So I just want to be clear: those prosecutions have been happening long before Dobbs. They are now even more concerning, hurting certain communities even worse. But it was always disproportionately Black and brown communities. Prosecution in those cases really did not come to public attention until you’ve heard some of the most egregious examples — like the Brittany Watts story. So that is a continuing piece of a puzzle.

Also, on equal protection and sex discrimination claims under state constitutions — we haven’t seen as much litigation in the state courts, or maybe that might be the impression. But certainly reproductive rights groups, the Center [for Reproductive Rights] — ACLU and others — we’ve always used the state courts where we could, where we knew strategically we had a better court to work with, we had better state court provisions that we could leverage. And that has been successful. Going back to Kansas — it keeps coming up (laughs) — that was a case we litigated. That was in 2019, that decision came down. Florida also was a place where we had great success, but as we just heard things have shifted on the court there. So those strategies have been there.

But also, the state courts were not really willing to take up the arguments all the time. So in Oklahoma, that’s a state where we repeatedly went to state court bringing state constitutional claims, and the court would always find a way to just decide it in lockstep or on the federal, and not get to the state constitutional. So I just wanted to respond to those.

Now, post-Dobbs, what’s going on with some of the newer litigation? I do want to emphasize a couple basic facts, which I think most or many people know but it’s really important to keep in mind. As a direct result of Dobbs, tens of millions of people live in a state where abortion is criminalized. Approximately half the states have criminalized abortion. I think that that number needs to be clear. And at the same time — and Professor Goodwin mentioned this — the United States has the highest maternal mortality ratio among wealthy countries. And it’s been on the rise in recent years. And it’s far worse for people of color: Black and Indigenous women are two to three times more likely to die of pregnancy than are white women. So that’s the reality kind of on both sides.

So this makes the loss of abortion and reproductive freedom rights a problem for people who do not want to be pregnant, but also a problem for people who want to have children and have safe and healthy pregnancies. And so this is what’s been widely documented, I think, and it’s catching people’s attention now. It’s coming from studies, research, but also stories, from providers but people who are, you know, sharing that they are facing severe health-threatening pregnancies, and they are not able to get the care they need — which is an abortion in many of these states.

I think perhaps most widely reported, and Kate mentioned this, is in Texas, Kate Cox, right? I think that is the one that broke through in a way we haven’t seen before. And Kate is a Center client. She was devastated when she found out the diagnosis that her fetus would not survive. She wanted to have children. But she couldn’t get the care she needed in Texas to preserve her own health, her own fertility. And as I think we all know, Texas officials literally forced her to flee that state to get the care she needed. That’s what it came down to.

I think her story is helping a lot of people understand what many of us already knew, and have always known: that medical exemptions do not work. They are not meant to work. That’s the context in which that case is taking place. And Kate actually — she did reach out to the Center after we had filed a different case. We had just had argument in the Zurawski [v. State of Texas] case, which was also filed in Texas, initially on behalf of a handful of pregnant women, similar stories, tragic experiences, also on behalf of providers who were literally unable to provide the care they knew their patients needed. And that was getting significant press attention, and she was literally trying to figure out what she could do. And she reached out to us.

Since those cases have been filed, more people have been stepping forward in other states. So we’re now litigating in four different states. Texas, obviously, Tennessee, Idaho, North Dakota. And these are cases on behalf of dozens of women who have been denied abortion care, or [been] delayed, had to leave the state when they had severe complications and threats to their own health. So these do all raise constitutional claims. They’re all in state court. There are no federal claims. I think one question people might have is, why would you go into state courts? These are pretty hostile states for reproductive rights. (Laughs.) These are not the courts you would pick if you were trying to build a wonderful new progressive jurisprudence for reproductive autonomy.

I think I’ll just flag two key reasons. People like our plaintiffs — there are people who are suffering and telling us they need access. Doctors are saying they don’t know what to do. Even some limited, narrowing construction might provide some amount of relief in those states. And that would be an important win and make a difference in those people’s lives. But the other is with an eye towards jurisprudence building. I think what’s maybe surprising is that even before we filed these cases, there were several courts in what you would think of as red states that had already issued decisions that carved out a small amount of protection for the right to abortion to preserve life or health.

And those decisions were not brought on behalf of individuals who had been denied care. These were the emergency litigation that was filed right after Dobbs, right? So Kate mentioned there was a flurry of litigation. Typically — and I think Mary, you were saying this — it was before laws went into effect, trying to seek to block them. So there was a lot of litigation that did temporarily stop some of these bans from going into effect. And what we got was about five state supreme court decisions at this point from that kind of initial round of litigation.

And we can come back to — I could quote language from those court decisions — but each of them often referred to inalienable constitutional rights in the state constitutions to preserve one’s own health, and life, and safety. And those were not cases where you had the opportunity to develop the facts, the claims, the legal arguments, as we are trying to do now in the current litigation on behalf of individuals. So I think those provide a window into some of the possibilities, even in states that may not be the venue you would choose.

I think it also shows that as more of these cases go forward, as well as in other contexts about harms to maternal health outside of the abortion context and in other areas of law, that state courts are going to have an opportunity, I think an obligation, to weigh in on what their inalienable rights provisions or other constitutional provisions mean when it comes to literally the right to life. So I’ll stop there.

Shaw: So Michele, I’ll ask you to come in on this question. And maybe after that, Diana, if you want to — we talked about the medical exemptions and general right to life, but I’d love to hear maybe more — what else strategically you all are thinking about in terms of theories, equal protection or other[wise]. But first, Michele, how are you thinking about this moment? And if there’s a genuine — I mean, no one wanted this particular opportunity. But there is a particular set of opportunities that may be writing on a blank slate and having the opportunity to build a new progressive jurisprudence around autonomy, liberty, rights, justice. How are you thinking about what the possibilities for those kinds of frameworks or paradigms might be?

Goodwin: Thank you so much for that question. And in my book Policing the Womb, there’s a chapter that’s devoted to thinking about this. One part of it is you think about this as a reproductive justice New Deal, or a part of a new Reconstruction that encompasses myriad other rights. There are ways in which we can capture this moment of originalism and think back too. If we think about original notions of personhood, they actually were not connected to fetuses. They were actually connected to people. This question, were Black people persons, which today, and I think amongst the students in this room, that seemed shocking, right? Like, seriously? There’ll be a debate about who’s a person?

But if those of you have ever read Toni Morrison’s book Beloved, you’d know that it’s actually a real account. There’s this Black woman who escapes a Kentucky plantation. And as was said earlier about [advice to law graduates] go south, go to small places, go around, go after law school. I went to Kentucky. But anyway, Margaret Garner, it’s a fascinating story. And it’s a story that’s also part of the drumbeat to the American Civil War. Because Margaret escapes, and she’s not the only Black woman who’s escaping.

And in fact, I commend you to look at news articles. The Connecticut Courant published a piece some years ago about the number of advertisements that they placed — somewhere near 2,000 advertisements — for people who were being sold or people who had run away. Overwhelmingly, these were Black women, Black girls, who would dare to run away, and often with their mulatto children. We could talk about that another time. But anyway, Margaret Garner’s story is that it’s cold. She’s 21. She’s got four kids. She takes them and her companions. And it is freezing. And the river separating northern Kentucky from Ohio has frozen. And Margaret, she dares to escape the plantation and to walk to freedom.

Ohio at that time was a free state, even though there were pockets that were resistant. Margaret makes her way. And she actually makes it to Cincinnati, crossing a frozen river without the benefit of Uggs, and puffy jackets, and all these things that we have at our disposal. And as she’s there and as the bounty hunters come — and we can think about Texas’s SB8 as empowering citizens to go after people who aid and abet people who are searching for their own reproductive freedom. Well, Margaret, when she hears the hounds and dogs coming after her, she grabs the first child and she slits the child’s throat. She grabs the second child, and it’s at this time that they overtake her. And it is said by witnesses that Margaret screamed out, “I will not have my children in slavery. I cannot continue to be a slave.”

There were lawyers that were appointed to represent her in Ohio. And these lawyers wanted her to be charged with first degree murder and attempted murder. They thought it would be better for a Black enslaved woman to be charged with murder than to go back to Kentucky enslaved. It debated the question, is Margaret a person or not? And it was a case that was heard around the world. It’s right after the Fugitive Slave Act. And so this is a big deal. And the Fugitive Slave Act being a federal law that enforces state-based enslavement.

But because this case is heard around the world, and because it’s this question: Is Margaret a person? Is she a human being? If she’s a human being, then we can debate her circumstances and the complexion of her children, which is said to be very fair, and that the person who owned her as he picks up the child that’s dead, screams out, and cries. It’s said that it was his child. I mean, it gives us a kind of point of view. And there are many Margarets. There’s not just one. There [are] so many. But it helps us to understand that time. And it helps us also to understand what the abolitionists were clinging to at that time, which is a level of history that we’ve disregarded and that we ignore.

When slavery was abolished, it wasn’t just slavery. It was slavery and involuntary servitude. We take for granted the sexual exploitation of American slavery that was so built in. I published a piece recently in the Yale Journal of [Law and Feminism]. And I included just a sample of advertisements. I mean, these things were not mysteries. It is interesting, because people who owned people were writing about the people they owned who escaped. And so often it’s like, “and with her mulatto child.”

And if you look back at records in that time, even Thomas Jefferson, he wrote a letter to another politician, John Wayles Eppes. You can find this on the Monticello website. And he says, you know, it’s overstated to have men on your plantations. Girls and women are where it’s really at, because they turn a profit every year or two. I mean, there was no escaping the reality of what American slavery was about. And even Charles Sumner, he’s nearly beaten to death. Some of you in law school, you remember, there was somebody who was caned in Congress. But there’s no sense of why he was caned. Well, Charles Sumner was an abolitionist. And as an abolitionist, he was leading the cause against slavery. And his chief argument, and so many others, was about the sexual exploitation and the forced pregnancies of Black girls and Black women.

And so several days after giving a speech, literally titled “The Rape,” he’s caned nearly to death, by Preston Brooks from South Carolina. He has to leave Congress for three years. And you know what? He comes back fierce in his abolition, and so are others. So that it’s not then a surprise to see this amendment abolishing not only slavery but involuntary servitude, and the ways in which we can think about that in these times, because there [are] so many parallels now coming out of the very same states that they were most concerned about.

Shaw: Can I just ask a follow-up question? That incredible history that you’ve written about — both in scholarship and in op-eds and elsewhere — at a broad level, I see the argument. How in concrete terms can — if we’re talking about the history of the federal Constitution’s Reconstruction amendments — how could that cash out in state court litigation?

Goodwin: Well, so much of that effort post-Reconstruction actually took place at state levels too. So it would probably surprise a lot of people in this room that shortly after the fall of American slavery and the ratification of the 13th Amendment, South Carolina had a majority Black state legislature. A lot of people would not even know that, just because of how Reconstruction came to a close. So these very principles were actually then carried down into the state level right after the 13th Amendment. So it wasn’t just then federal. It was actually at the state level. And we know it applied and happened because the very forced efforts of forced reproduction and sexual exploitation came to an end.

Now, it’s not that — don’t get me wrong, sexual harassment, rape, all of those things, sexual assault, we know that they live in our society. But to the extent that it actually carried on into state practice to eliminate this forced reproductive servitude, it actually took shape. And I think that we can think about that within these times.

The one last point that I’ll add to this, Kate, is that if you read the abolitionist record at the time, they’re not concerned just with women of Margaret Garner’s age, who’s 21. And, sadly, actually, she was returned to the man who owned her and was dead by the age of 25.

But they’re concerned about girls. They’re writing stories about eight-year-old Black girls jumping off the top of barns because they know what’s going to be happening to them. And on the point that Diana made about exceptions — the area of exceptions that’s not working is also with rape and incest, too, right? I think that there’s much for us to plumb and connect in this history, both in thinking about it at the federal level but also at the state level too.

Shaw: That’s great. And before we move on to some backlash sorts of topics and questions, Diana, is there anything — beyond the exceptions litigation — the work that you and other reproductive justice advocates and litigators are doing, is it informed by the kinds of reconceptualizations of constitutional provisions, constitutional values, and history of the sort that Michele was talking about? Or what kinds of frames in terms of — you mentioned right to life in state constitutions, you could say more about that? Or if there are other theories that you can ventilate in this room that you all are either pursuing or thinking about?

Kasdan: Thank you. We are definitely informed in our work. (Laughs.) And I know I have colleagues here and others who are thrilled to hear directly from Professor Goodwin and others here, whose scholarship that we’ve been looking to for years. What we want is to have a right of reproductive autonomy, bodily autonomy, that is about access to all the decision-making rights you need, all the health care you need — whether it’s having a safe and healthy pregnancy and childbirth, terminating a pregnancy, assisted reproduction, preventing pregnancy. And that was never achieved, right? We didn’t have that under Roe. So it’s a really long-term project.

The reality, as I was talking about before, is we are dealing with people who are suffering right now. So when we’re in state courts, we’re going to use every provision or argument that might actually win and get some relief. So there’s no real silver bullet, right? I mean, we are making sex discrimination, equal protection, privacy claims. So we will use those where they look strategic, or just, they’re the right claims to make. But I think maybe what are some areas to think about — also for people in the room who are scholars or, you know, how to support this — is how does that work with the other aspects of constitutional protections and rights?

One struggle is, in equal protection, you have to show that the discrimination is purposeful, intentional. It’s not enough to show discriminatory impact. And that’s a problem for lots of areas of law. And are there state constitutions that work differently, and where we could rebuild a right that is more of a positive right, or that actually deals with the reality of how people live their lives and how laws work. So I think some of the thinking we’re doing for the longer term is not only in the reproductive rights space, but across different rights areas. What are the barriers to actually realizing your individual rights and your civil rights?

In very general terms, that [is] my thinking. I would say that’s important. One other [thing] I would add is, we need to deal with originalism. We need to deal with the fact that state courts are going to be using that — particular judges are persuaded or that’s their orientation. And we’re going to have to deal with that in our arguments. But we can do so in a way that — and this goes to what Professor Goodwin was talking about — does it honestly. (Laughs.) And looks at the history accurately, both factually and in terms of the interpretive method. You know, what was going on at the time? Not just what do these words mean and the particular framers — what was being contested and debated at the time?

So I think the idea of how the Reconstruction amendments at the federal level — but also all the states that were passing or enacting their own constitutions post-Reconstruction — what do those amendments mean when you think about the change that was happening in the country? I think the more that is built into how we talk about history and tradition, or reshape it, is really important.

Shaw: Michele, do you want to respond?

Goodwin: Just this question, also about dignity. Because I wonder about how we can use arguments related to personhood and dignity that center on the lives of people who have the capacity for pregnancy, and then also what that means in a broader reproductive health outlook. Because it seems to me that distorted from this is the sense about [dignity] — that actually comes up in Roe. So for as much as I think it’s right to think about how Roe was not a panacea, there is something that Justice Blackmun did. I think it’s worth remembering that Roe was a 7–2 decision, not split, and that of that 7–2, or that very narrow, sort of the narrow end of dissent, Justice Blackmun was Republican-appointed, put on the court by Richard Nixon. I think it’s important to clear the air given what’s in the atmosphere. But in that decision, Justice Blackmun talked about how important it was to think about what forced pregnancy meant, or unwanted pregnancy meant, in terms of interfering with education, interfering with health, mental health and physical health, the potential for employment, and so much more. And those are really dignity kinds of arguments, I think, that he was making. I think we need to return to some of that.

Shaw: That’s great. And maybe just to put a pin in something that Diana said — I took you to be saying that there are a lot of areas in which scholarly development could be very constructive and useful to this work. And so to the extent that there are scholars in the room or law students in the room who might be future scholars, or just are working on scholarship right now, this is a tremendously fertile area. Whether we’re talking about the interplay between different state constitutional provisions, plumbing specific state constitutional history. I mean, I don’t want to volunteer your time, Diana, but I suspect that all of that assistance would be very welcome if law students who are looking for topics all the time are interested.

Kasdan: Yes. Do it. Yes. Research it. Write it. Theorize it. And we will cite it.

Shaw: Yes. Great. (Laughs.) Mary, let me bring you back in here. You are a scholar of history, of abortion, and included within that category is the antiabortion movement. And you suggested that there has not been — at least in terms of litigation — there have been some ballot efforts, though unsuccessful, to curtail or restrict reproductive rights on the ballot. But there has not been a huge amount, in this post-Dobbs era so far, of litigation. I wanted to hear you say a little bit more about some of the breadcrumbs that are being left in concurrences or by state supreme court justices, and other ways, maybe in legislatures or elsewhere — I mean, you’re writing a book about fetal personhood. This has been the objective of this movement since Roe, right? I think. You’re the expert, you tell us. There’s no way they are not focused on how to bring about a reality in which there is constitutional recognition of the rights of a fetus. And so I’m curious if you could talk about where — the sites at which that’s happening right now, the kind of long-term strategic thinking I am sure is going on. Help us understand what that side of the post-Dobbs world looks like.

Ziegler: Sure. So it’s definitely kind of a long-game picture for the anti-abortion movement, in state court as well as federal court. If you’re trying to get a coherent picture of what are the anti-abortion bills that have been prefiled in January and February, the short version is, a lot of them are personhood outside the context of abortion bills. So there are tax credit bills. There are wrongful death bills. There’s litigation unfolding in state court that tries to achieve the same thing, right? And this really runs the gamut from kind of strange habeas corpus suits where people accused of violent crimes have their defense attorneys claiming they can’t be incarcerated because the fetus wasn’t committing a violent crime, to much more elaborate suits brought by Jonathan Mitchell, whose name may be familiar because he was arguing before the U.S. Supreme Court yesterday in former President Trump’s disqualification case.

Jonathan Mitchell is in state court in Texas in wrongful death litigation trying to establish, again, fetal personhood. He’s always trying to do federal court stuff in state court too. So he’s trying to get the Comstock Act and make it into a national ban everywhere, in state court as well as in federal court. But the strategy here is to assume that it may not be possible to convince even conservative state courts, given the backlash to Dobbs and given their own state constitutional traditions and history, to say that a fetus is a rightsholder at this moment in time.

So instead, what the litigation and legislation is designed to do is to say, “Well, isn’t it odd that a fetus is a rightsholder in context 1 through 100, where we’ve legislated or litigated, but not in the context of reproductive rights?” In order to present this litigation and legislation is this surge of support for the idea of fetal personhood. This too, I think, has a federal aim ultimately. I mean, the message is going to be the same if this claim returns to the U.S. Supreme Court. There’s going to be the same kind of move that was made in Dobbs to say, “Well, you know, 30-something states are calling for Roe to be overturned. Who are we, the Supreme Court, to ignore this popular constitutional demand?”

And anti-abortion lawyers are planning to say, “Well, look at all these state courts and the state laws that recognize a fetus is a person. Who are you, Justice Brett Kavanaugh, to ignore this surge of popular sentiment?” (Laughter.) But, having said that, we’ve seen several moments where state supreme court judges, either in oral arguments or on occasion in written opinions, have suggested that they may be sympathetic to the idea of personhood.

South Carolina, for example, had a state supreme court that had invalidated a six-week ban. The state court’s composition changed. Its only female justice retired and was replaced by a male justice, making it the only all-male supreme court. And the court then, in less than a year after the original opinion, reversed course and upheld a fundamentally identical six-week ban. In doing so, at various points, [the court] would sort of slip between describing what was at issue as the state’s interest in protecting the fetus and the fetus’s interests. So there was almost an automatic slippage into the fetus as a person.

We’ve seen — Justice Pariente can speak to this too — several of the justices of the Florida Supreme Court, the Chief Justice [Carlos] Muñiz being chief among them, using personhood language, indicating some sympathy to personhood. That doesn’t mean we’re going to get a personhood decision right away, but I think we’re seeing the door may be open. And even if it isn’t open, we’re seeing a lot of efforts by the anti-abortion movement to pry it open more slowly through kind of not constitutional but other forms of litigation and legislation.

Shaw: Fascinating. Thank you, Mary. Justice Pariente, you don’t have to comment unless you would like to further on the kind of rhetoric on the current court, but I am curious if you could talk a little bit — since we’re now talking not about affirmative efforts that have been somewhat successful, although there are limitations, but about backlash. So in Florida, you had both the flip in the case law at the supreme court level, and then once the mobilization to gather signatures really seemed to be taking off, you, of course, had a challenge. That is what the court heard arguments about this week. So can you talk about how, now that we’ve been talking in fairly general terms, specifically in Florida, how that kind of backlash to pushes [toward] or actual enshrinements of reproductive rights, how that has unfolded?

Pariente: First of all, I wanted to comment on something that Michele brought up, which is about voter suppression. And in Florida, it’s full steam ahead, every possible way limiting vote by mail — just everything. The parade of horribles to ensure that individuals do not exercise their right to vote. I think the other part of this is that, as we were talking about abortion, about the rich versus poor. Pre-Roe, I was talking to somebody whose mother had gone up to New York, right around the time she was pregnant, and came back. She said she had a miscarriage. And we said no, we don’t think it was a miscarriage. We think it was an abortion. I mean, this is what people that had means were doing back then. And the same thing clearly now.

And so I know we’re going to have a question about how can you assist. In Florida — I don’t know if it’s nationwide — there is emergency medical assistance. People that will help if a state [is] a place where they can’t get an abortion, to be able to go [to a different state]. And one last thing: in Florida, the law is penal: if they performed an abortion that wasn’t medical[ly] necessary or outside the limit, there [are] criminal penalties for doctors. And so you’ve got a complete suppression in so many areas of this.

We should end on a positive note. Because going back to, you know, Florida, we got this amendment. I think it’s going to go on the ballot. It does need 60 percent. And, you know, what do we need in Florida? We need people to register to vote, vote, vote, vote, for every reason. Young people, minorities, register to vote and vote in November. Second of all, these initiatives take money. There will obviously be lots of money against it. So it’s always a question of money, money, money to make sure that we can be successful. And I’m optimistic about that. But stay tuned to this issue of personhood. I could see it coming in Florida if it’s raised at some point.

Shaw: Thank you. And you actually sort of anticipated my last round of questions, which was going to be about some practical guidance or advice to folks in this room. I was going to ask you, Justice Pariente, what can people who want to support those trying to enshrine abortion rights in state constitutions do? You answered, vote, support — you know, register to vote, actually vote, provide financial support if you can to the individuals trying to launch these campaigns, and what else? What else can people do? (Laughter.)

Pariente: This is the website for Floridians protecting freedom. And it says vote yes on amendment four, and also vote, donate, and join. And so you don’t need to be in the state to support us. And I do think that we actually have ACLU lawyers from Florida here. Wonderful. Where are you? Yay. (Cheers, applause.) They’ve been such a great champion in Florida. And so we need to support [the] ACLU as well.

Shaw: OK, so this is the lightning round. And then we’re going to go to some questions. We’ve gotten some really good questions. Diana, what can people in the room do to support state constitutional litigation over reproductive rights?

Kasdan: I will repeat some of my earlier comments, which is, whether you’re a law student, or a scholar, and interested, get to know state constitutional law and really dig in on how it is different, how it is unique. And also what aspects maybe could, down the line, apply to federal constitutional law. Because we do want to have nationwide protection for our rights. It can’t depend only on state-by-state protection. So I do encourage people who are interested in that kind of scholarly end of it, to really pick your state you’re interested in, the state you’re from. Really, go where you’re needed.

And I think the counterpart there is if you want to be litigating — I love and appreciate how many people would love to come to the Center for Reproductive Rights or the ACLU. We have national offices. But as was mentioned before, if you’re not in the state and don’t know the nuances of the state court and the judges there, you’re at a real disadvantage. It would be so wonderful to have a network of brilliant new law graduates who are dedicated to fighting for civil rights, or reproductive rights, really becoming experts in their states as well. So I would encourage that.

And then if you’re not planning to be involved in litigation, the reality is we need judges on the state courts who are going to interpret their constitutions in the way that will support reproductive rights, civil rights, liberty rights. Whether it’s an election or appointment process, to the extent you can be involved in having a say who is on state court is, at the end of the day, going to make perhaps the biggest difference. Because, as we just heard, if the court flips the decision can flip. Nothing’s permanent, right?

This is something that was really hard for me to adjust to post-Dobbs. You know, I went to law school — like, when you get a Supreme Court win, when you have a constitutional right, you have it. And really what we just have to do is keep going in court and defending it for the people who the state is interfering [with], denying. And, you know, that is not the world we live in. Things are changing very quickly. So whatever your angle is, whether it’s political or legal or scholarship, we need all of it.

Shaw: Another potential angle is historical. So I have a question for Mary, which is, what role can history and historians play in this new era of developing a new state constitutional jurisprudence around abortion rights?

Ziegler: I’m going to echo Diana’s point, because I think there are not enough historians in this area. How do I know that? It’s because occasionally Diana calls me or one or two or three other people and says, “Do you know anything about the state constitutional history of Ohio?” To which I usually answer — and sometimes there’s, like, a scrum where we — we did a brief about Michigan, and we had to figure out why Michigan? The state had a ban from 1931. And that was weird. It wasn’t going to be an easy brief to write.

But for selfish and also movement-building reasons, it’s very important to have a kind of army of people. It’s not a sustainable model to have the people who are already doing this history do all of it. We can’t do all of it. And history is salient to a lot of state courts. It’s salient to the U.S. Supreme Court. We just don’t know a lot of it, right? So states are asking, “What is our tradition? Our tradition is not the federal tradition. What is our tradition?” And the answer is usually, as far as historians are concerned, no one knows. No one knows very much about state bans. No one knows a lot about state constitutional traditions.

To the extent they do, they know at a very high level. If you do a surface-level research review, you will find very little on a lot of this. And so this is an area that I think intersects a lot with litigation. So if this is something — if you are flirting with legal history, or think it sounds interesting, this is an area where historical research is really, really important and salient. It’s not just abortion bans. It’s what we would call mini-Comstock laws, that are sort of obscenity laws that include abortion and contraception sometimes in them.

We’re looking now not just at the possibility of the bans you know exist, but the bans you might not even know exist. So there’s almost a limitless amount of research. If everyone in here can Google me and find my email, or Diana. Literally, that would be amazing. (Laughs.) There’s no end to — I would love it. Please, please do historical research. I will continue, but I can’t do all of it.

Shaw: All right. And finally, for this last lightning round for Michele. There [have] been some hopeful notes that we’ve struck on this panel. And obviously some not-so-hopeful notes. But in states where there’s no direct democracy, and you have courts that are likely to be hostile, and legislatures that are likely to be hostile — this is maybe an unfair question — but what can people do in those situations, apart from despair? Because that’s not an option.

Goodwin: No, that’s right. And I think if there’s any message that comes through over time — you know, sometimes at convenings like this I’ll pause and I’ll ask the question, what story does a mother tell her child the night before the slave auction? The night before they’ll be separated forever and she’ll never be able to see that child again. But she must tell that story — some story to that child that gives that child hope, a sense that you are a person no matter what you’re going to encounter after this, where people tell you that you are no higher than a cat, mule, dog, piglet in the field. These things — I’ll never be able to see you again. But there’s something that she has to impart.

I mean, that was an enterprise of what people were doing, right? So we should not lose hope. But I think that, concretely, there are a number of things for people to think about in this room, particularly young people, the students. One thing is that voter suppression has also been student voter suppression in recent years. And we have to be mindful of that. Places where students used to be able to, in state, use their state student ID, now no longer are able to do that as a means of voter suppression. And it’s important that we recognize that and that we name it.

I think you need to run for office. (Laughs.) That’s important at every level. Every level. When you think about what’s been happening in terms of the gutting of sex education by school boards. That’s important too. And so I think the broader aims of democracy, they are broad. We could think about the kinds of efforts that can take place at the state legislative level that also include turning to international law, international human rights, and seeking to embed that also within states — within state legislation as a means of expression.

And then a final point, because there could be so many things for us to think about in terms of, of hope, but travel has been mentioned throughout the day and throughout these two days. The importance of going to places that are thorny, that are sticky, that are hard. You’d be surprised, actually, the people that you’ll find who are real fighters in those places, who will be great friends. That’s what I experienced when I moved to Kentucky. And I think that those kinds of things are also incredibly rewarding in terms of moving to those places and working on direct action democracy. I think it can be incredibly fulfilling.

You’re needed in places. And we are in many ways, Kate, in a situation that we found ourselves in about 60 years ago, when there were young people leaving New York — a lot of them Jewish — going down to the American South for direct democracy, to help people register to vote, and doing freedom schools. It was so important what they did. And I’ll close with this — Fannie Lou Hamer earlier, [who] Judge Carlton Reeves mentioned in that district court order, famously said that what inspired her to do her activism, to put her life on the line, was the fact that there were young people who came from the north to the south. And she figured, if they could make that sacrifice, that their parents could support them in that sacrifice, then she too could stand up. It was really powerful.

Shaw: Wonderful note to close this portion on. And we’re going to now pivot to some questions. The first of these is a Florida-specific question for you, Justice Pariente, which is, the implementation of the voting rights — or the voting rights restoration amendment, amendment four, in Florida — was really heartbreaking. And the question asks how that experience has informed your thinking about the abortion initiative.

Pariente: Well, we had an amendment — just for those that didn’t know — amendment four. We were, I think, the only state, or maybe one of two, that didn’t, after the felons had served their time, still didn’t allow them to vote. And so there was an amendment, a restoration act, to be able to vote. But the supreme court interpreted the act to require [that] they also pay their costs. So that became another barrier. A group stepped in to help pay the costs. And then I guess the next question is: and will they vote? Or do people in Florida feel so disenfranchised and so helpless that they don’t think it’s going to make a difference? So I make a plea here to Michele, come down to Florida and get them out to vote? (Laughter.)

Shaw: Terrific. OK, next question. Diana, there’s a good question about state standing. So standing in state courts — I think that most of us who have looked at this are vaguely familiar with the notion, in broad terms, that states are sometimes more relaxed than the austere article three standing requirements that obtain in federal court. And so that in general terms is right. I’m not sure — I don’t know at all the answer to this — but has there been work with potentially looser state standing requirements that have enabled the airing of claims or questions related to reproductive rights and justice in state courts in ways that couldn’t be in federal court?

Kasdan: This is where I say I’m not a litigator, I just play one on TV. Standing is easier in certain respects [in state court]. So I think that’s something to look into. This just goes back to knowing the nuances of the state court. I think we don’t — we haven’t had a problem with standing, right? We have plaintiffs who are directly affected, and also, there have been good decisions from state courts about third-party standing. You know, specifically, the recent Pennsylvania decision was, “We are not following federal jurisprudence. We’re not importing any of that.” The plaintiffs in that lawsuit were the health care providers that were seeking the Medicaid reimbursement.

So there’s a lot of good opportunities on standing. I think on the flip side, keep in mind, there’s very weird — and problematic for plaintiffs — procedural rules where if you get a TRO [temporary restraining order] emergency relief at the lower court, it may immediately go up and be blocked. That’s what happened in Texas. So you may very quickly find yourself losing the relief you got temporarily and up before the supreme court, which maybe is your goal, right? Sometimes the goal is to get to the supreme court. But in other cases, you don’t have a favorable supreme court, but you’re trying to build a compelling record. And you have other strategies around the case, but you might get forced up very quickly.

So I think, yes, there are more opportunities in some ways, but there’s also other pitfalls to watch out for. And that just goes back to really having local counsel, and people who know the state courts and procedures.

Shaw: It also occurs to me — something that you just said made me realize that another audience that really needs to be better informed about state procedures and state law [is] the press. I remember when the Zurawski — the temporary restraining order came down from the trial court in the Zurawski medical exceptions case. And that word went out was, like, the plaintiffs won. And folks who really knew practice in Texas were like, well, the state will appeal right away, and that automatically stays the temporary restraining order. And it was like, oh, the law was correct, maybe, in Texas for, I don’t know, a couple of hours, maybe a weekend. It wasn’t a lot of time. And I think that maybe it’s incumbent on all of us to be better informed about the procedural dimensions of state court litigation in ways that we are familiar with the federal system and far less so with the state system.

OK, Mary, this is kind of a broad question. But I do think that this panel of experts, people understandably would like to know a little bit about your thoughts on the mifepristone case, if I can bring you into this. I’m sure you have lots of them. I am fascinated by this state enforcement of Comstock, either state enforcement of federal Comstock or state enforcement of baby Comstocks, or state-level Comstocks. We probably don’t have time to go deep into that.

And in any event, the Comstock Act question is not itself in the mifepristone case before the Supreme Court. But I guess anything that you want to share about how that’s going to affect the landscape in state courts litigation, ballots, whatever aspect of state courts and repro justice you want to focus on. But what do you want to share with this crowd about the mifepristone case that the court will hear — March 26, now?

Ziegler: So there’s the mifepristone case and [the] EMTALA case. And I’m currently thinking the EMTALA case could be a bigger deal than the mifepristone case.

Shaw: Please feel free to comment on both.

Ziegler: So, in the mifepristone case, I think there’s a few different outcomes we could see. As you may or may not know, the Alliance for Hippocratic Medicine, which is a group of anti-abortion physicians, is challenging the FDA’s authority to approve mifepristone, which is used in more than half of all abortions in the United States. The court has only taken up the question of whether the FDA had the authority to modify the restrictions on mifepristone in 2016 and 2021. So it seems unlikely that they’re going to revisit the original decision to approve the drug.

I think it’s most likely that the court will say that the plaintiffs don’t have standing. Why do I think that? Well, because the plaintiffs don’t have standing. (Laughter.) And I’d like to believe that — it’s really hard to explain to law students why the plaintiffs might have standing, just because they don’t. I mean, and I’m good at playing devil’s advocate. But that’s one possibility. Another possibility is that the court does something along the lines of what the Fifth Circuit did, and essentially rolls the clock back to 2015, which would make the experience of getting an abortion very different regardless of what state constitutional law says, regardless of what state constitutional decisions are on the books. It would essentially require multiple in-person visits to physicians before a medication abortion could be secured.

There’s an outside chance there will be a Comstock claim, because the 2021 revisions to the FDA restrictions involved telehealth. And the plaintiffs in the case in their various amici are arguing that the FDA didn’t have the authority to do that because the Comstock Act makes it a federal crime to mail abortion drugs — and really, they would argue, any abortion-related item. So all of that is to say, be afraid, be very afraid. And I’ll stop. (Laughter.)

Shaw: We have only a minute or two left. So maybe I’ll give Michele the last question, this is a broad question, but maybe you could pick one or two parts of it to answer — how do you see the historical and ongoing barriers to reproductive health care disproportionately affecting marginalized communities, specifically in jurisprudence? And what steps do you believe should be taken to address those disparities? So we’ll let you have the final question.

Goodwin: Wow. That is a broad question. But, yeah, there you go. Let me just say this — just as Diana mentioned earlier, and I think it was a great point — even post-Roe, pre-Dobbs, there were communities that were being policed. And what was happening to them was not being picked up by news media. And quite honestly, many organizations that are reproductive rights organizations really weren’t shining a light on them. So I think that we have to remember that reproductive rights is a plural — that it is not just abortion but it affects when, if, how one wants to become pregnant, become educated, any of those things.

And in many ways, you know, Black and brown women were the canaries in the coal mine. And to that extent, even though one can say, “Well, it was this composition of the court, it was the former president, this is why there’s a Dobbs.” There’s another way of thinking about it, which is that over 25 years ago, there [was] a group of Black women who got together and said, “This all isn’t working. We need a new nomenclature — reproductive justice,” because there were literally Black women being dragged out of hospitals in shackles and chains with bloodied gowns after giving birth. There are Black women who are giving birth in prison toilets and on concrete floors. And why? Because there are prosecutors that are using a personhood rhetoric associated with their pregnancies.

These are women who are being charged with child abuse while they are pregnant and could have an abortion. These are women who are being charged with delivering drugs to a minor while they are only 10 weeks, 12 weeks pregnant, and could have an abortion. These are women who are being targeted because they have told their medical providers that they are struggling with drugs, and their medical providers are turning that information over to law enforcement.

One could argue that if there had been greater attention to what was happening to those women at the time, then it might have been understood that this needs to be shut down right now. Because, though, it might look like they just want to be pregnant, that should be allowed too. And that one day this would sweep in such a way as to challenge and dismantle Roe v. Wade. And so I would say, keep our eyes on the people who happen to be most vulnerable, because oftentimes that will give us some sense of what’s going to be happening next. Thank you so much, Kate.

Shaw: Thank you so much for this fantastic panel. (Applause.)

(End.)