Berkeley Voices: ‘The past will be present when Roe falls’
In this Berkeley Voices episode, Berkeley Law professor Khiara M. Bridges discusses the history of reproductive rights in the U.S., what’s at stake when Roe v. Wade is overturned and why we should expand our fight for reproductive justice.
“Roe v. Wade didn’t fall out of the sky,” says Bridges. “In 1973, the justices weren’t like, ‘You know what we should make up? A right to an abortion.’ Roe v. Wade was actually part of a long line of cases dating back to the 1920s.” By saying that Roe v. Wade isn’t good law, she says, it suggests that these court decisions that led to Roe v. Wade were also improper interpretations of the Constitution, putting many of the rights that we have today in jeopardy.
And, Bridges says, the right to an abortion is only one element in a universe of other rights and abilities that people with a capacity for pregnancy need.
“Reproductive justice, the framework, would be interested in expanding and making sure everyone who needed the service (an abortion) had access to it. But also, everyone who wanted to become a parent could become a parent. And everybody who wanted to parent the children that they had could parent the children that they had.”
Read a transcript of Berkeley Voices episode 95, ‘The past will be present when Roe falls.’
Intro: This is Berkeley Voices. I’m Anne Brice.
[Music: “Ferus Cut” by Blue Dot Sessions]
Narration: For Berkeley Law professor and anthropologist Khiara M. Bridges, working in reproductive justice runs in the family.
Khiara M. Bridges: My uncle, his name is James Bridges, and he was one of the first Black obstetricians in Miami, Florida. He graduated from medical school in 1964, which was at the time that the government had just passed the Medicaid and Medicare bills. And Medicare required that in order to receive federal funds, hospitals couldn’t discriminate on the basis of race. And so, that meant that hospitals couldn’t discriminate against my uncle on the basis of race. So, he was one of the first Black obstetricians who was permitted to do his residency in one of the biggest hospitals in Miami.
And because his life’s work was around pregnancy and delivering babies, I became fascinated with pregnancy and babies. But I knew that I didn’t want to work with it in the way that he did. I didn’t want to be an obstetrician. But I still found pregnancy fascinating. So, I figured out another way to study pregnancy and work with pregnant people.
Narration: Bridges’ research focuses on race, class and reproductive rights. She teaches several courses at Berkeley Law, including Criminal Law, Family Law and Reproductive Rights and Justice.
Khiara M. Bridges: So, you know, I wear two hats. I have a JD and I also have a Ph.D. in anthropology. When I’m wearing my legal hat, when I’m wearing my JD hat, I really do kind of standard, legal, academic kind of work. So, I write law articles, I examine laws, I examine policies, I talk about the consequences of laws and policies and things of that nature.
But when I’m wearing my anthropology hat, that’s when I have an opportunity to work with living, breathing, pregnant people.
My first book is called Reproducing Race, and that was an ethnography of an obstetrics clinic in Manhattan. I called the clinic Alpha Hospital in order to give it some degree of anonymity. But that was a study of what it’s like to be pregnant and poor and receiving Medicaid and having to rely on these public health bureaucracies in order to have a healthy pregnancy and give birth to a healthy baby.
And I was very interested in how our discourses around race and our discourses around class and our discourses around pregnancy and gender and bodies, and how they all intersected to kind of make a mess of all our aspirations around autonomy and dignity.
Anne Brice: I remember in a talk that you gave, you mentioned that there is a difference between reproductive rights and reproductive justice. Can you explain what the difference is?
Khiara M. Bridges: Sure. Reproductive rights — and there’s nothing inherent about what reproductive rights coming to mean what it has come to mean. But reproductive rights tends to refer to a narrow set of legal rights, and that’s the right to an abortion. And again, legal rights. So, reproductive rights tends to be about: How do we vindicate this right to an abortion? What sort of laws need to be passed? Or, what sort of decision do we need handed down from the Supreme Court in order to protect this right to an abortion?
And reproductive justice is broader than reproductive rights. I describe it as picking up where reproductive rights leaves off. Reproductive justice is very much concerned about abortion rights because abortion is such an important tool for people with the capacity for pregnancy to control the content and trajectory of their lives.
So, reproductive justice understands the importance of abortion rights, but it also understands that abortion is a small element in a universe of other rights and abilities that people with a capacity for pregnancy need.
Reproductive justice understands that the right to not become pregnant is incredibly important, but the right to become pregnant is equally important, right? So, we need to be protected against forced sterilizations. We need to be protected against environmental degradation that will render us incapable of pregnancy.
And reproductive justice also understands that we need the right to parent the children that we birth. Being able to give birth to a child is wonderful — when it’s wanted. But we have a system in place in the U.S. that kind of strips parents of their children, largely because their parents are poor. It’s devastating to lose custody of one’s child due to poverty or due to a state actor not thinking you’re a competent parent. And so, reproductive justice says that is just as important as to not become pregnant in the first place.
Anne Brice: Can you tell me what reproductive rights and justice have looked like in this country going back maybe 100 years? What did it look like?
Khiara M. Bridges: That’s a big question because when you think about all of the issues that reproductive justice cares about, you know, different things were happening at different times over the course of the country’s history.
You know, we have the eugenics movement. I mean, we can go before that and talk about chattel slavery with Black people who were enslaved having no ability to control whether they would would become a parent, whether they would become pregnant, whether they would be able to keep the child that they birthed, right? And so, there were dramatic and spectacular reproductive injustices happening then.
We can talk about the eugenics movement at the turn of the 20th century, with government actors and other powerful private actors deciding that some people were just not competent people and so therefore shouldn’t be able to become parents. We had forced sterilizations as a matter of, you know, public health, as a matter of public policy.
Narration: People were deemed incompetent or inadequate according to the law for all sorts of reasons, says Bridges. But at the core, it was most often because they were poor or were not white Anglo Saxon protestants. This meant that people who were considered what Bridges calls marginally white — which included people from places like Greece and Italy and Ireland — were also prohibited from having children. So, only the racially and economically privileged few, she says, were actually deemed capable or competent enough to reproduce.
Khiara M. Bridges: We have a famous case called Buck v. Bell. It was decided in the early 1920s. In that case, the Supreme Court upheld the forced sterilization of a woman named Carrie Buck. And Carrie Buck had been institutionalized. She was in a hospital or an institution for people they called imbeciles. Also, in that institution were epileptics. So, it was just a true motley crew of folks who were deemed inadequate.
And it turns out she didn’t even have a cognitive disability. But first of all, even if she did have an intellectual disability, she ought not to have been sterilized without her consent. But there’s no evidence she was actually intellectually disabled. It turns out she was just poor.
She was a survivor of sexual assault. And so, the child she gave birth to, they said, “Oh, she’s an unwed mother. That means that she’s immoral and, again, inadequate. But her child was actually a produce of sexual assault. And so, you know, Buck v. Bell is a famous case because the Supreme Court signed off on it and said that eugenic sterilization was perfectly consistent with the Constitution.
Narration: Another moment in history, says Bridges, is when Roe v. Wade was handed down by the U.S. Supreme Court in 1973. It was a landmark decision that ruled that the U.S. Constitution protects a pregnant person’s right to choose to have an abortion without excessive government restriction.
It has been in the news a lot recently, as most of us probably know, because the Supreme Court seems poised to overturn it. And when it is overturned, the most vulnerable people will suffer the most, says Bridges, like they did before Roe v. Wade.
Khiara M. Bridges: I think a misconception that people might have is that, you know, prior to the legalization of abortion or the protection of abortion through the Supreme Court’s finding of a constitutional right was that everybody was using dangerous methods for terminating pregnancies, like with coat hangers or back alley abortionists. And that’s certainly true, but not for everyone.
Folks with class privilege have always been able to safely terminate a pregnancy, if not legally. In a state where it’s illegal, it’s illegal. But people with privilege have always been able to safely terminate pregnancies. So, even if a person lived in a state that had criminalized abortion, people were able to find an obstetrician, a gynecologist who they knew, who they could pay, who could terminate the pregnancy safely. The back alleys, the coat hangers, those were the methods used by poor people. Those were the methods used by marginalized people who didn’t have the social capital or financial wherewithal to pay to have a safe abortion.
And I mention that because nothing suggests that things will be different when — when — Roe v. Wade is eviscerated by the Supreme Court. Nothing suggests that people with privilege will not be able to travel to a state where abortion is still legal.
Right now, Texas has allowed S.B. 8 to be in place since Sept. 1. Folks with privilege are traveling. They’re going to Oklahoma. They’re going to Kansas. They’re coming to California and going as far as New York in order to terminate their pregnancies safely. If Roe falls, when Roe falls, people will always be able to travel. They’ll go to Europe. They’ll go to Canada. They will always be able to find someone who will safely terminate a pregnancy for them.
Those who will be stuck in the back alleys, those who will be relying on coat hangers, and those who are self-managing abortions through medication abortion despite the criminal law, those are going to be the most vulnerable: the poor people, young people, people with disabilities, undocumented people, people of color. So, the past will be present when Roe falls.
Anne Brice: You say, “when,” so it’s pretty certain?
Khiara M. Bridges: I mean, I can count. If you can count to five… and, you know, this was all intentional. It’s not like, “Oh, my God. It turns out that the Supreme Court is stacked so that Roe is in danger.” You know, people have run on that platform. Trump ran on this campaign promise — that if he was elected, he would appoint people to the Supreme Court who would be willing to overturn Roe.
He appointed Gorsuch. There’s a vote in favor of overturning Roe right there. Kavanaugh, oral arguments, seems pretty receptive to overturning Roe. And then, of course, Amy Coney Barrett. All signs point towards her being a vote for overturning Roe. You add that to John Roberts. You add that to Alito. Oh, of course, Clarence Thomas.
So, the question is not whether they’ll have enough votes. The question really is whether John Roberts is going to vote with the conservatives or if he’s going to vote with the liberals. But no matter how he votes, it’s a done deal.
Anne Brice: So, when it is overturned, will it criminalize abortion throughout the entire country, so you can’t go to any single state in the entire country to get an abortion?
Khiara M. Bridges: No. If Roe is overturned, it will return to the states the ability to criminalize abortion or not. So, we’ll have a patchwork. Right now, it seems like at least half of the states would criminalize abortion and the other half would not. So, it’ll be illegal in Texas, but legal in California; illegal in Florida, but legal in New York.
But I think we’re naive to believe that’s the end goal. That that’s what people have been fighting for this whole time. If one believes that a fetus is the moral equivalent of a baby, one cannot be satisfied with abortion being legal in some states. And so, it would appear that if that is one’s conviction, that one wouldn’t rest until we’ve passed some federal law that would make abortion illegal in the entire United States.
[Music: “Vally VX” by Blue Dot Sessions]
Narration: The reversal of Roe v. Wade, says Bridges, won’t be like a light switch going off, taking away abortion rights all at once. Instead, the lights have been dimming for quite some time.
For example, immediately after Roe was decided, legislators in Congress started introducing bills to have fetuses recognized as constitutional persons. In 1980 — just seven years after the decision in Roe — the Supreme Court upheld the constitutionality of the Hyde Amendment, which prohibits federal funds from covering the cost of abortion procedures. And states have been passing laws that make it difficult and, in many cases, impossible, to access an abortion.
Khiara M. Bridges: In reproductive justice, reproductive rights circles, we call this incrementalism. People who have wanted to move abortion out of the reach of everyone have been taking kind of incremental steps, whittling away at the right until it’s at a point now where it’s easily kind of knocked over because there’s not much left.
Narration: And it likely won’t stop at abortion rights, says Bridges. By saying that Roe v. Wade isn’t good law, it suggests that several court decisions that led to Roe v. Wade were also improper interpretations of the Constitution.
Khiara M. Bridges: Just as a matter of constitutional law… you know, Roe v. Wade didn’t fall out of the sky. In 1973, the justices weren’t like, “You know what we should make up? A right to an abortion.” Roe v. Wade was actually part of a long line of cases dating back to the 1920s.
You know, Meyer (v. Nebraska) and Pierce (v. Society of Sisters) and Prince (v. Commonwealth of Massachusetts), these cases that interpreted the Constitution to protect a right to privacy, specifically around issues involving the family. So, those cases held that a parent has a fundamental right to raise their kids the way that they deem fit.
And then, in the 1960s, we had a case called Griswold v. Connecticut, in which the Supreme Court said, “Well, actually the right to privacy that we recognized way back in the 1920s, the privacy around family matters, that kind of is broad enough to encompass the right to access contraception — when you’re married.
And then, Eisenstadt v. Baird came along in 1972 and said, “Well, if you can access contraception when you’re married, you can access contraception when you’re unmarried.”
And then, Roe happened in 1973. And that said that the right to privacy around matters involving the family was broad enough to encompass the right to not create a family in the first place: the right to an abortion.
Narration: Bridges says Griswold v. Connecticut, which struck down in 1965 a state law prohibiting the use of contraceptives by married couples, is foundational to so many of our rights that we have today.
Khiara M. Bridges: If you look at the decisions protecting, recognizing LGBTQ rights, they’re all based on Griswold. So, Lawrence v. Texas said that you can’t make it a crime to engage in same-sex sexual contact. The Supreme Court cited Griswold for that proposition. Obergefell v. Hodges said that the Constitution protects the right to marry a person of the same sex. The Supreme Court cited both Lawrence v. Texas, but also Griswold.
If Griswold’s not good law, then that means that Lawrence v. Texas isn’t good law. It means that Obergefell v. Hodges isn’t good law. It means that proposing that the Constitution prevents states from criminalizing LGBTQ sexual activity, proposing that the Constitution protects the right to marry a person of the same sex, then those are improper interpretations of the Constitution. Those rights fall next.
Now, this isn’t just a law professor going ham on a podcast. In fact, the author of Texas S.B. 8, which has made it impossible to get an abortion in Texas after six weeks, Jonathan Mitchell, in a brief to the court, he said precisely that. He said, “You know, when Roe falls, then Lawrence and Obergefell hang by a thread.”
So, I think we should be worried. We should be worried, especially in light of the fact that the Supreme Court, as currently constituted, they don’t seem to be interested in protecting the rights that historically vulnerable, marginalized people need in order to be fully human in this country.
Anne Brice: What do you see that needs to be changed in order for these rights not to be completely stripped away? What needs to happen to not only stop that cascade, but build toward a better way of life for everybody?
Khiara M. Bridges: Yeah, it’s a good question. It’s a complicated question. I think everybody should be in the streets right now fighting for voting rights. I don’t think it’s a coincidence at all that Texas passed S.B. 8, and Texas also has the most restrictive voting laws in the country right now. S.B. 8 is not representative of the people of Texas. S.B. 8 is representative of the people who are able to cast votes, and those are not marginalized people.
I don’t think we should sit idly by and let that kind of stuff happens because I think the most direct way to change law is through voting. We wouldn’t be talking about the fall of Roe right now if Hillary Clinton had won the election in 2016. So, voting is incredibly important, at least when it comes to laws. So, I think we ought to vote. But in order for our votes to matter, we have to fight for voting rights. We have to make sure that people aren’t gerrymandered out of representation.
Narration: Bridges says that while there is a bill that passed the House that would codify Roe v. Wade into law, it’s unlikely to pass the Senate. But to codify it into law would be something. Definitely better than nothing.
[Music: “Lovers Hollow” by Blue Dot Sessions]
But she says we should be thinking bigger.
Khiara M. Bridges: You know, reproductive justice, the framework, would be interested in expanding and making sure everyone who needed the service had access to it. But also everyone who wanted to become a parent could become a parent. Everybody who wanted to parent the children that they had could parent the children that they had. So, it would be a series of bills that could protect what we have, as well as expand beyond what we have right now.
It’s very kind of slogany, but we really do have to trust women. We really do have to just know that they know what’s best for themselves, for their lives, for their families.
And this is when I put my anthropologist hat on, and I’m like, “This is about cultural change.” It’s not necessarily about a change in the law. It would be nice if laws existed that would enable us to express our lives in the different ways that we might express our lives. But I think that when we’re talking about meaning, and the meanings that people attach to being a cis woman or having a uterus, in order to change those meanings, it’s a cultural change, right?
Narration: Although nobody knows when the Supreme Court will hand down its decision on abortion rights, Bridges expects that Roe v. Wade will be overturned, sending the country back in time. And we’ll have to figure out how to keep moving forward, to work toward building a more just society, while supporting the people who need it most.
Outro: I’m Anne Brice, and this is Berkeley Voices, a Berkeley News podcast from UC Berkeley’s Office of Communications and Public Affairs. The illustration for this episode is by Neil Freese.
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