Part 2 — Interview With Dahlia Lithwick: Ideology, Stigma, Society, and Reality

Our three-part interview with Dahlia Lithwick continues today as David Avallone and Dahlia discuss the important role of culture and stigma in transforming the mindsets of legislators and judges, as they make and shape the laws that govern our lives. To read Part One, click here.

David: We’re so used to our Supreme Court Justices being political and ideological that when a Justice seems to follow the Law, regardless of their personal politics, that shocks us.

Dahlia: The underlying anxiety that people in the pro-choice community have is not even entirely bound up in what the Supreme Court thinks.  It’s what the states have been doing. Thousands of laws have been passed at the state level, and so many of those laws have been completely pretextural . There’s so much of this that just pretends to be showing great solicitude for women, and is just so deeply violative of women. I think in a weird way, to me, Whole Women’s Health was just an example of a bridge too far. The only Justice who was sitting at oral arguments and snarking about rats in the filthy clinics… you know, the Gosnell crap… that clinics are these Hellscapes of violence towards women… that was Alito. He really feels that way. But I think that the other Justices, with very few exceptions, just don't believe in that stuff.

So much of this legislation is mired in such intense ideological “pro-life” conviction that they feel they can say whatever they want and the judges are going to buy it. Post Whole Woman’s Health, I think with no exceptions, every court that has reviewed these kinds of laws has struck them down. It’s almost as though Justice Breyer’s opinion in Whole Woman’s Health emboldened judges to say they’re not making a partisan choice.  They’re just piercing this pretextual argument that as long as the state says it’s good for women it’s good for women. So I actually think it goes beyond partisanship and it goes into “what is the judicial role?” If Judges think their job is to make sure people aren’t lying then that isn’t really a partisan question.

David: So in the atmosphere of a solidly anti-choice statehouse, no one is really bothering to give these laws any solid pretext. The specious logic that “this protects women” doesn’t really hold up to sane scrutiny.  You put it in front of a judge, and try to argue it, and you get sane scrutiny and the false pretext collapses.

Dahlia: Right. And you know it’s funny, because when HB2 passed… the next morning the Texas Lt. Governor tweeted a map showing “these are all the clinics that are going to have to close.” Just unrepentant. This has nothing to do with women’s health.

David: It’s transparent.

Dahlia: Yes. So I think you’re totally right. Once you peel away the specious arguments, for elected political officials to be like, “I don’t have to pretend this is about women’s health. This is about closing clinics. This is Texas.” The idea that the courts would balk at that is really a pretty important.

David: And in Texas you already have a return to a pre-Roe situation, where women who live closer to Mexico than they do to the nearest abortion clinic are crossing the border and getting an abortion there.

Dahlia: Elana Kagan made this point at oral argument in Whole Women’s Health… what she called a “natural experiment” in what happens when clinics close. The law goes into effect and half the clinics in the state close. We see an abrupt uptick in women doing searches for self-induced abortions. We see an abrupt uptick, like you say, in women going to Mexico and having incredibly dangerous abortions there. One of the things Texas argued, with a straight face, is that they could close clinics and it would be fine because women could leave Texas and go to New Mexico and get an abortion. Justice Ginsburg at argument was like, “Are you out of your mind?” If you say this is about women’s health, and they can go and have an unhealthy procedure in New Mexico, then this is not about women’s health. Remember… the test is “undue burden”, and they’re saying “oh, there’s no huge burden. They only have to drive 300 miles to New Mexico to get it.”  Sotomayor’s objection was you can’t be arguing simultaneously that you care about women’s health and it doesn’t matter clinics are closing because they can go have these abortions in a different state.

David: The state is arguing that the best thing for a pregnant woman’s health is to be behind the wheel of a car for eight hours.

Dahlia: Right. For me personally, it was great finally having  three women on the bench when one of these cases is argued. You know Roe was decided by nine men. So to have three women there, and to have Sotomayor be like, I’m sorry, tell me again about the part where they have to get a pill, drive a hundred miles to go home, and then drive back another day… why can’t theytake the pills home? Just the complete falsity of the claim. “Oh no, we’re just protecting their health. So be it that they have to drive back and forth three times.”

There was an amazing moment at the Fifth Circuit, at the Federal Appeals Court when this was argued before it came to the Supreme Court, where the judges were like, “What’s four hundred miles? We love our cars in Texas.” You know, if you’re a poor domestic worker, who has four kids at home and doesn’t have a Maserati, this is not nothing. In a lot of ways, when you think about the actual statistics about abortion, the vast majority of people who seek abortions are already mothers, they’re low income. This is not “designer” abortion.

David: Not to dwell on Kennedy, but do you think it’s possible, in the years between 1992 and 2007, that Ginsberg’s words got under his skin and he looked up the real statistics? He was making a counter-factual argument based on cultural mythology and stereotypes – that most women regret it – but it’s a well-documented thing now that this just isn’t the case.  The majority of women do not regret their abortion.

Dahlia: It’s absolutely true that it was debunked. I also think, and this is just so important for people who are thinking about how to be activists in this moment… one other thing that really moved the needle, at least for Justice Kennedy and the Court, was an amicus brief that was filed by a whole host of women who were prominent lawyers. They came forward and said, “I had an abortion, too.” They did the work of telling stories and stepping into the discourse, saying “this is not great for my career, to admit this, but here I go.”  It really was taking a page from the marriage equality case that came before. The Justices think they don't know people who’ve had abortions, and this is the only way to make them face the reality. They know these people, and they don’t know that they know them. So here they are. That brief, I have to tell you, was heart-stopping. It really was a moment of reckoning for Feminists and women who think about choice. It seemed like a trivial thing to have to step up and say, “Hey, I had one,” but it’s not trivial. Particularly in the white shoe Washington lawyer world. I think it’s incredibly powerful when the Justices read something like that, and they realize, like you say, that the stereotypes are just that. Some of them date back to the Bible and to Shakespeare, but they’re just stereotypes.

David: There’s so much false mythology about abortion and one of A Is For’s missions is to fight that mythology. In the imagination of people who haven’t had an abortion in the last twenty years, what they think of is entirely surgical, and the present day reality is that the vast majority of abortions involve taking a pill not having an operation. Because of the propaganda work on the right, they’re picturing forceps and scalpels and vacuum cleaners.

Dahlia: Right, right. The “filthy abortion mills.” The Kermit Gosnell stuff.

David: And in the pop culture… it’s exceedingly rare for a character in a movie or television show to have an abortion. You almost never see it.

Dahlia: If you look at the data of what percentage of women have actually had one… in reality, there’s this groundswell of familiarity. Yet we can’t draw a straight line between those women and the public discourse around abortion because there’s so much shaming going on. One of the big questions that litigators have been asking themselves in the past forty years, is how did the needle move so quickly and so abruptly on marriage equality and almost not at all on abortion. It’s really fighting our own demographics. It’s really problematic. 

David: I think the easy answer on why the needle moved so quickly… it goes back to sharing the stories. Ellen Degeneres, as an example, was an adult lesbian woman and before she came out of the closet she was a popular personality and regular guest in the living rooms of people who might otherwise have been bigoted.

Dahlia: I think that’s right. When the marriage equality folks brought cases to the court, one of the things they said over and over again was “thank you, Will and Grace.” Whenever women are feeling disempowered, like “what can I do, what can I do, I can’t control the outcome of who’s on the Supreme Court next…” my feeling is that the answer is: you tell your story.  Tell your story in your local paper. Tell your story in an op ed.  Write a letter to your Representatives. Don’t think that that this is only a discussion that happens in the halls of power. If they’ve never seen someone like you it’s easy to pretend you’re not there.

David: I think the statistic is one in five. One in five women by the age of forty will have had an abortion. And yet there’s a world of people, and maybe for a long time Justice Kennedy was one of them, who believe they have never met someone who’s had an abortion. And it’s absurd. Every time they’ve been to Thanksgiving they’ve sat down with someone who had an abortion, and who never told them.

Dahlia; Or one of their law clerks. Or their staff. I do think it’ll change. It’s just crazy that we’re not moving on this.

David: It’s like sexual assault statistics. When a man tells me he’s never met anyone who’s been sexually assaulted I think, “women don’t talk to you or you’re not listening when they talk.” Given the spectrum from workplace sexual harassment to rape, I think the statistic there would be close to 100%.

Dahlia: I think that the Access Hollywood video, and the reaction to it, proved that it touched a nerve… and what’s really shocking is that in spite of that white women turned around and voted for Trump anyway. So that’s another disconnect. Even if we do tell our stories, even if we do stand up and say, “wait. Reckon with this,” we sometimes don’t take the next step of turning it into real political action and that’s another kind of failure. A systemic failure that women have to be thinking about.

 In tomorrow's final installment, David and Dahlia talk about the state of repro rights today, and what to do, moving forward, to protect those rights.