Civil and Human Rights

PODCAST (Slow Burn): Could a Different Roe v. Wade Decision Have Saved Abortion Rights Today?

Susan Matthews: And I think in particular, since we’re starting with the meta question for me, as the person who doesn’t have a law degree, when you talk about Roe as being grounded in privacy, there’s something very automatic that makes you think like and you know, it’s about the relationship between the woman and the doctor, but privacy and abortion like connect together to just reinforce this idea of like it’s a shameful thing and it had to be private and we’re just protecting that rather than like affirmatively protecting a certain rights of the way that you said it before. It’s grounded in privacy, but it’s grounded in family autonomy. Like family autonomy is a quite eloquent way to to put that.

Dahlia Lithwick: So let’s talk about that in part because I think it’s been entirely neglected in the conversation around Dobbs and SBA. You know, when we try to talk about this longstanding, right, that goes back to, you know, Peirce and Miers and these incredibly important cases about you get to decide what your family is. All of that history is packed into an amazing book by Peggy Cooper Davis. It’s a book called Neglected Stories. It’s kind of a neglected book about how much of the construction of that right, that fundamental right to family autonomy, to decision making about who you marry and how you raise your children and where they go to school. All of that line of cases is reverse engineered from an understanding of the failures of the Bill of Rights to codify the protections that slaves didn’t get.

Dahlia Lithwick: Right. So you cannot think about this. And David Gans did an amazing job on a recent amicus episode, really spelling out that what the 14th Amendment was contemplate. Getting at the idea of what it was conferring upon chattel slavery in the institution of chattel slavery and freed slaves was all the things that aren’t in the First Amendment and the Second Amendment. And so that is the ability to marry who you want.

Dahlia Lithwick: Right. Once the slave trade ends, he told me. The only way to continue to have slaves is by forcible rape of women and removing women from their husbands and removing children from their families. This is an economic decision that is made to perpetuate slavery, right. So all of the things that come under this, what we call this inchoate basket of privacy and family autonomy, is quite literally reverse engineered so that people who were not allowed to marry, who were not allowed to raise their children in their homes, whose children were ripped away from them and forced into servitude.

Dahlia Lithwick: All of that is what is contemplated, both in the words of the 14th Amendment and then in the line of cases that arises from them. Which is why when we say, oh, you know, the justices in the seventies just like invented this from whole cloth, are ignoring the entire body of, you know, we have proven evidence of what the 14th Amendment was trying to do and the horror that the framers were expressing at what slavery did to families and family autonomy and the whole entire line of cases. That has to do with how you educate your children. They cannot be forced to learn dogma that they don’t believe. That whole line of cases that sweeps in Griswold and the right to contraception, that sweeps in loving versus Virginia, the right to marry a person of a different race. Those are really substantial, coherent rights that then become Roe v Wade….

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