 Hello everyone. Welcome to our later lecture 2021 Lawrence later in lectureship. It's my honor today to introduce our lecture in a moment. I wanted to make you aware of some housekeeping items specifically how to participate. We'd love for you to submit your questions at any time using the q amp a feature found in your controls. I'll be moderating and selecting questions to facilitate a robust discussion. You can also continue the conversation on Twitter using the hashtag that you see here but for those on the phone it's hashtag. Capital Harvard capital bio ethics all one word. If you have any technical issues. Please use the chat feature and send us a message to all panelists so that we can help out. And if you're interested in upcoming events news education programs, please subscribe to our emails bio ethics dot hms dot Harvard edu front slash subscribe. The Lawrence leader later lectureship on family planning and reproductive rights was established by a gift from advocate and author Lawrence later to Harvard Medical School. Lawrence later was a 1941 graduate of Harvard College and the founding chair of the National abortion rights action league. Mr later was a journalist and author of 11 books, including a book titled simply abortion, which was quoted nine times in the United States Supreme Court's Roe v. Wade decision. This lectureship has wonderful history with some incredible speakers and that there is no exception tonight. We're very excited to welcome Linda greenhouse who is a senior research scholar and lecturer in law at Yale law school where she's taught since 2009. For the preceding 30 years she was the New York Times Supreme Court correspondent and earned a number of major journalism awards, not the least of which was the Pulitzer prize for her coverage of the court. She has written widely about law and politics of abortion. Her New York Times magazine article constitutional question is their right to abortion was published in I believe January of 1970 was one of the first articles for general readership about the emerging legal framework for abortion debate. She's the author of many books and I won't list them all because I want to hear her speak as soon as possible but she does have a new book I want you aware of called justice on the brink the death of Ruth Bader Ginsburg the rise of Amy Connie Barrett and 12 months that transform the Supreme Court, it will be published by Random House in November of 2021 next month I can't wait. She is a graduate of Radcliffe College Harvard and has earned a master of studies in law from the Yale law school. She's been a member of several nonprofit boards, including our Harvard Board of overseers and currently serves as president of the American Philosophical Society, the first woman to hold that position since the society's founding by Benjamin Franklin in 1943. Without further ado, I'd like to welcome Professor greenhouse to give her talk. Thank you. Thank you, Louise. It's a real honor to have been invited to give this lecture. I can't claim to have known Larry later but having published my first article as you mentioned about abortion in the Times Magazine way back when, and having followed this issue very closely for the ensuing more than half a century I certainly have always known and of his pioneering work on abortion reform in fact I worked in his vast collection of papers at the Schlesinger Library truly fascinating collection because he saved everything. And I was in there for the collection of primary source material about abortion that Riva Segal and I published in 2011, the book called before a row against Wade voices that shaped the abortion debate before the Supreme Court's ruling. He was certainly one of those voices. And I actually spoke with him by phone several times during the Supreme Court's 1989 1990 term about his long running effort to get the Treasury Department and the internal government to strip the Catholic Church of his tax exempt status, because of its anti abortion political activities. His organization abortion rights mobilization had sued the government on the theory that the church's activities disqualified it from claiming tax exempt status, and that the agency's refusal to revoke the tax exemption, had the effect of giving what amounted to a federal subsidy to one side of the abortion debate. The federal appeals court in New York had dismissed that lawsuit for lack of standing, and the Supreme Court refused to hear the appeal. Larry later had worked on this issue for 10 years. When I interviewed him in April 1990. He said he now regarded his cause essay quote, dead letter. And so it was, but that doesn't mean he was wrong to call out the sectarian basis for anti abortion policymaking. In fact, there's even greater reason for concern today than there was when Larry later gave up that particular fight 30 years ago. In these last decades have seen deepening engagement in the anti abortion fight, not only by the Catholic Church but by evangelical churches as well. That fact may seem self evident for anyone who reads the news today, but actually it's not self evident. There's a lot about abortion history in fact that strikes us today as counter intuitive, including the fact that a number of evangelical churches once had a notably more nuanced position on abortion. Before political affinities drove out all remnants of nuance, just as the Republican Party in the immediate post roady immediate post row years described itself as a big tent on the abortion issue. And in fact it did not add an anti abortion flag to the party platform until 1980. Now we're the country's evangelicals of big 10. For example, the Southern Baptist Convention which now advocates recriminalizing all abortions, except those necessary to prevent a pregnant woman's death, had adopted a resolution in 1971, two years before Rome, that called on Baptist to work for legislation that permitted abortion, quote, under such conditions as rape incest clear evidence of fetal deformity and carefully ascertain evidence of the likelihood of damage to the emotional mental and physical health of the mother. This was essentially the position that the American Law Institute, an organization of the elite members of the legal profession had arrived at in the late 1960s in its project to modernize the criminal codes of the 50 states, several states mostly in the south. The court had by 1973 reformed their abortion laws to conform to this proposal. In one such state I'll just say parenthetically was Georgia, whose reform law the Supreme Court would strike down in Doe against Bolton which was the companion case to row. What struck it down even though it was a reform law was that it required the woman to jump through so many hoops and pass on the approval of five doctors in two different panels in order to be qualified to get an abortion so the Supreme Court regarded that as as unacceptable. And to an effect. Why did the American Law Institute position make headway in the south, rather than in the seemingly more liberal states of the north. It was because the Catholic Church had much less influence in the south. The church had a tight hold on the political structures of the Northeast, obviously here in Massachusetts, but also notably in New York. In 1971, the legislature by a margin of one vote had repealed the state's 19th century criminal abortion law. But the bishops vigorous effort to undo that repeal succeeded in the next legislative session, the legislature actually voted to repeal the repeal. Senator Nelson Rockefeller's veto kept New York, which we now think of as the bluest of the blue states second only to California for going back to the 19th century in 1972. So those who maintain and sadly Ruth Bader Ginsburg was one of them, that the cause of abortion reform was rolling smoothly across the country. The time of row failed to take account of the church foster legislative lockup in states with substantial Catholic populations. This despite the fact that polling in the early 1970s show that a majority of American Catholics along with every other group favored decriminalizing abortion. In addition, one other one particular aspect of the 1971 Baptist resolution, the acceptance of abortion as an appropriate choice following a diagnosis of severe fetal deformity. As you may know, anti abortion state legislatures are now rushing to criminalize abortion in cases where the doctor knows that the patient is motivated by a down syndrome diagnosis. These new laws have so far been struck down by lower federal courts, but these states, and some of the judges that Donald Trump has put on the lower courts are eagerly awaiting a signal from the Supreme Court. Justice Clarence Thomas gave such a signal in a dissenting opinion in 2019 when the court refused to hear Indiana's appeal from a decision that has struck down one of these laws. His opinion dissenting from that was a 20 page screed about the history and horrors of eugenics. He spoke only for himself alone but I am confident we haven't heard the last of this issue. Before moving on to the Supreme Court I want to say a bit more about religion and Larry later's honor. Someone else as well Justice John Paul Stevens, who served on the Supreme Court for 35 years and who died two years ago at the age of 99. He was named to the court by President Gerald Ford in 1975 the first justice to join the court after the decision in roller guess Wade, and here's another counter intuitive fact. At his Senate confirmation hearing, he was not asked a single question about abortion. It's unimaginable today isn't it, particularly since he was a Republican appointee named to replace the ultimate liberal justice, William O Douglas, who of course had been part of the Rome majority, but the absence of controversy about his his nomination shows us that contrary to the prevailing myth that rose sparked an immediate backlash. Justice Wade was actually widely regarded as having settled the issue. And the question was not seen as one appropriate for political controversy. Actually political controversy was carefully nurtured later in the 1970s it didn't spontaneously arise. He was a Republican activist who were smart enough to see abortion as a useful tool for achieving the same kind of political realignment in the north, and in the Midwest that the race card played so well by Richard Nixon had succeeded in peeling away southern whites from the Democratic Party. In all his years on the court, John Paul Stevens was the only justice to call out the religious nature of opposition to abortion. In the Webster case in 1989. The court was considering a Missouri law that among other provisions declared to be a quote finding of the state legislature that quote, the life of each human being begins at conception. The question was was that language constitutional. The majority duck the issue on the ground that the statute simply stated an abstract proposition quote abstract proposition that wasn't actually regulating anybody's behavior. And to the majority, there was no need to address its constitutionality, but Justice Stevens discreet the language amounted he said to quote, an unequivocal endorsement of a religious tenant by some but by no means all Christian faiths, it serves no identifiable secular purpose, he wrote. For that reason alone he said it violated the First Amendment's prohibition against the establishment of religion. And while it was true that the statutory language was essentially meaningless. He understood the danger of judicial deference to a legislative expression of the sword, and the consequent need to bring the establishment clause into the picture. That was perhaps a simpler time. And just as well that Larry later who died in 2006 at the age of 86 didn't live to hear a governor ki the of Alabama, describe a bill she had just signed criminalizing nearly all abortions in the state as quote, a testament to Alabama and steeply held belief that every life is precious, and that every life is a sacred gift from God. And as Governor Greg Abbott celebrated the state's abortion vigilante bill by proclaiming that quote, our creator and doubt us with the right to life. Why are these anti abortion politicians willing to so to show so much concern for the lives of fetuses and so little for the lives of women. The court proclaims its 15 week abortion ban. The law at issue in the dobs case that the court will hear in December as beneficial to women's welfare. While Mississippi ranks at the very bottom on measures of the outcomes and pregnancy and childbirth, some 80 briefs have been filed filed at the court on behalf of Mississippi's abortion ban. And for half of them come from religious entities or from individuals and organizations with obvious religious identities. Why haven't we heard very much about the religious motivation for these laws that would strip women of their autonomy and strip doctors of their right to serve the needs of their patients. Religion in America is society's last taboo. We can talk endlessly about sexuality, gender identity, but challenge someone for trying to impose the religious doctrine on others. Lawrence later wasn't shy about putting religion in its proper place, which is not in legislative chambers, doctors offices, or in the Supreme Court of the United States. I want to follow his example and for instance not be shy about discussing the fact that all six of the conservative justices on the court are Catholic. I include Neil Neil Gorsuch in this group because while he now identifies as Episcopal and he was raised in the Catholic church and attended the same elite Jesuit boys prep school as Brett Kavanaugh. In 2006 I'll just mention only Justice Lito did not attend a Catholic school during his K through 12 years. How did this come about. Well, all six were appointed by Republican presidents who I believe of course I can prove it. They were using Catholicism as a proxy for the anti abortion position, about which a president can directly ask a potential Supreme Court nominee. So it was a way of getting an answer to a question I couldn't be asked, and it had it been asked of course the nominee could not answer. President Trump hardly had to ask Amy Coney Barrett about her views on abortion. During her pre judicial career as a law professor at Notre Dame she had signed a number of faculty statements denouncing low against weight. She even signed a statement criticizing the Notre Dame administration for having honored then Vice President Joe Biden with a medal, despite Biden support for abortion rights. All six justices all the Chief Justice Roberts, permitted the Texas vigilante law to go into effect without Supreme Court intervention tells us pretty much everything we need to know. The fact that the end is clearly in sight for the constitutional right to abortion as we have known it for nearly half a century is simply astonishing, made all the more so by the fact that a strong majority of the country does not want this to happen. That brought us to this point. And what if anything is there to do about it. I've already alluded to the Republican Alliance with the religious right, an alliance that has successfully created single issue voters who capture state legislatures. These legislatures in turn place their rubber stamp on model legislation that is pouring forth from anti abortion think tanks and policy shops, like Americans United for life a very smart and influential organization that too many on the pro choice side of the street and never heard of for dystopian vision of the future you might want to check out their website. www.aul.org particularly their annual volume title defending life and described as quote America's pro life playbook. During the decades following the Supreme Court's reaffirmance of the right to abortion in the 1992 decision plant parenthood against Casey. Much of the proposed legislation coming from America's united for life and similar organizations involved trap laws trap being an acronym for targeted regulation of abortion providers. These proposals assumed the continued existence of the right itself. Because there was no prospect them as the Supreme Court would actually overturn wrote. But sought to make abortions as hard to obtain as possible by imposing on providers, owners regulations that were not imposed on doctors who perform procedures of equivalent or greater risk. The epitome of this strategy came with the Texas law that required abortion providers to have admitting privileges in nearby hospitals, a virtual impossibility in many parts of the country as this audience knows well. The legal rationale for the legislation was to protect women's health. But of course the real reason was to shut down as many clinics as possible, because doctors wouldn't be able to get the required privileges. And in fact the law did shut down half the clinics in Texas, before the Supreme Court and validated it in whole women's health against Heller step. In the summer of 2016, many of those clinics have never been able to reopen. And they can see that they can see caused by Justice glia's death earlier that year had not been filled. So only a justice is for sitting. The vote was five to three with Justice is Kennedy and Ginsburg in the majority. They of course are no longer with us. Justice Kennedy is with us. Excuse me in the world just not on the court in whole women's health. Justice Breyer wrote a very strong opinion for the narrow majority. The final question for the court was whether the law imposed an undue burden on the right to abortion. Undue burden being the governing standard ever since the Planned Parenthood against Casey decision. How is the court to decide whether a burden is quote undo Justice Breyer applied logic and said the court has to weigh the burden against any benefit from the legislation. If the burden is great, and the benefits small, then the burden is self evidently undo. In this case he said the admitting privileges requirement was a solution in search of a problem. It conveyed no benefit for patients, while it imposed a demonstrably crushing burden on access. It was therefore unconstitutional. President Trump had the same law, which was challenged by the before the same federal appeals court the Fifth Circuit, which covers Texas Louisiana and Mississippi. The fifth circuit back then was one of the most conservative courts in the country. Now it's even more conservative President Trump got six appointments there on the court the fifth circuit had upheld the Texas law, the law that overturned in whole women's health so that reversal should obviously have led the fifth circuit to take that lesson and strike down the Louisiana law just a couple of years later. But that court is driven by such an obvious anti abortion agenda that shockingly it upheld the Louisiana law. So of course the Supreme Court had to step in and overturn the fifth circuit once again, which it did in the June medical case in the summer of 2020. But there was a difference. There were two new justices on the court, Justice Gorsuch and place of Justice Scalia, and more to the point Justice Kavanaugh and place of Justice Kennedy. They both voted to uphold the Louisiana law. Chief Justice Roberts, who had been one of the three dissenters in whole women's health. This time voted with Justice Breyer and provided a fifth vote to strike down the law, and in effect to rebuke the fifth circuit for define clear Supreme Court president president. Chief Justice Roberts had to do this for institutional reasons. You can't have a lower court openly defying Supreme Court precedent, but he wasn't happy about it. He was simply signing Justice Breyer's opinion, which he did not do, because the prior opinion reiterated the balancing test of benefits and burdens from whole women's health. The Chief Justice filed his own concurring opinion. And here's what he said, I quote, I joined the dissent and whole women's health and continue to believe that the case was wrongly decided. The question today, however, is not whether whole women's health was right or wrong, but whether to adhere to it in deciding the present case. He then went on to prevent an analysis that in fact undermined rather than adhere to whole women's health. Balancing benefits against burdens was an improper exercise in judicial power, he wrote quote, There was no plausible sense in which anyone, let alone this court could objectively assign weight to such imponderable values, and no meaningful way to compare if there were on quote. The only question was whether a regulation at issue imposed a substantial obstacle to a woman's ability to exercise her right to terminate a pregnancy, whether the law achieved any benefit was not for judges to say. Of course, Justice Breyer's analysis of the inserted benefit from hospital admitting privileges was not based on imponderables, as Chief Justice Robert seemed to think, but rather on a database assessment of the risks of abortion, and of the need for a doctor who performed the abortion to be the one to admit a patient to the hospital, I should say to admit the rare patient to the hospital. The majority opinion and whole woman's health was an example of evidence based medicine meeting fact based law, hold that thought, because we're not likely to see it again. The Robert separate opinion in June Medical was alarming because according to the way votes were counted at the Supreme Court. It meant that Justice Breyer was speaking only for a plurality, and not for a majority of justices. June Medical in other words was not an opinion of the court. The reason it has limited presidential value in it. It undermined the presidential weight of whole woman's health was that case even still good law lower court soon began grappling with that question with some saying it was not because the Breyer analysis no longer commanded a majority. While others insisted that it was on the ground that only the Supreme Court can overturn one of the some precedents in the court in June Medical had not officially done that. We can expect the justices themselves to answer that question in the near future. If it turns out that the question of regulations benefits has to be read out of the undue burden analysis. The court would seem to be open for all kinds of regulations that nibble away at the right one rather minor burden at a time until the burdens add up and the right itself conveniently fades away. Meanwhile, following whole woman's health and the invalidation of other trap laws, the anti abortion forces have grown impatient. The legal abortion into a procedural obstacle course was providing harder than expected. So a new strategy emerged and it's emerged with stunning speed. Stop coming up with new trap laws and just go after the right itself, breach the viability barrier ban abortion after 15 weeks, as in the Mississippi case, or 12 weeks, or as in the Texas case six weeks. LMP dare the reconfigured Supreme Court to say stop. And that's the Mississippi case it will be argued at the beginning of December, decided in the spring or early summer of 2022. The grant review alone says a lot. The fifth circuit even the fifth circuit and struck down the 15 week ban is it obviously had to do the court debated for months, whether to hear the state's appeal. This was unusual. The court usually limits its intervention to issues that have provoked a split among the federal appeals courts, banning abortion at 15 weeks is so obviously unconstitutional that no court had upheld it. But how could this free court pass up the chance to get his hands on this case. There's been considerable chatter to the effect that the court may be looking for something short of overturning row and overturning plan paradigm plan parenthood against Casey explicitly, and that the Mississippi case could provide such a vehicle. I don't see it. The federal argument, a justice will ask the lawyer. Okay, what's your limiting principle. And that question certainly applies here. Once the viability wall, which has been maintained since row itself is breach. What's the limiting principle, why 15 weeks why stop there why not 12 or six or fertilization. Assuming the court upholds the Mississippi law, which I think is pretty much of a foregone conclusion. The court is not likely to say explicitly, and we hear by dismantle the protection that row has offered to pregnant women, just as it won't explicitly signal to the states that anything goes. To us doctors commentators journalists to unpack the court's message and explain to the public that the right to abortion is now only what your state legislature says it is in discussions about the pending case I'm often asked, how can the court do this. The court simply overturn or eviscerate a precedent. Well, of course, the simple answer is the court can do anything at once. As long as there were five votes. The court after all repudiated separate but equal when it decided Brown against port of education. The court recognized constitutional protection for the private sexual acts of consent and gay adults and Lawrence against Texas in 2003, only 17 years after it had rejected the same argument and Bowers against hard work. I've had dinner party conversations during which people play devil's advocate they cite those examples, and they asked. So what will be so shocking about overturning row against way. To me, that the most prominent examples of the court rejecting its own precedence actually on closer examination, make the prospect of overturning row, even more shocking, rather than less. That's because the two famous cases I've cited are examples of expanding rights, rather than taking rights away. Furthermore, as a matter of constitutional doctrine. The court for the right to abortion has become more robust rather than less in the year since row was decided and, as you know rose decided on the basis of the right to privacy at the time of row. And here's another counterintuitive fact. The court had not yet created a jurisprudence of sex equality for all this liberal expansion of constitutional protections for criminal defendants and for individuals burdened by various kinds of discrimination. The Warren court never once recognized sex discrimination as a harm within the meaning of the Constitution's equal protection guarantee. The modern jurisprudence of sex equality came along after 1973. Mostly in cases brought to the Supreme Court by the young Ruth fader Ginsburg, and later with her participation on the bench. So the notion of women's equality as a constitutional matter was not available to the court that decided row. In the ensuing decades however we've come to recognize women's right to dignity on autonomy in her most personal choice of whether to become a mother as a matter of due process and of equality. But the court would negate this broad societal understanding with the stroke of five or six justice suspense is indeed shocking. Yet I think it's impossible not to recognize that we are at that threshold. And what to do about it. Politics has brought us to this point, a long political game engineered with great focus and deep cynicism over many years. In politics it seems to me can save us. What I mean is that while the court is highly likely to remove constitutional protection from abortion. It is not at least not yet. Going to adopt a theory of fetal rights under which a right to abortion would itself be unconstitutional. That means that in our federal system the battle will be fought state by state, as it was before row. So 50 years later we may have a new battle to fight. Prebailing across the country are quite long, very long. A dozen states have passed so called trigger laws under which the old 19th century criminal abortion abortion laws automatically spring back to life if row is explicitly overruled. As I've suggested I think a more likely outcome in the Mississippi case it's not an explicit overruling, but a breach in the viability wall that functionally amounts to the same thing. I don't believe the trigger laws would apply in that scenario, but the fact that they exist tells us the degree to which legislatures have been captured by a minority that's been able to leverage its power through a strategic alliance with one of our two political parties and that has never taken a sigh off the price. It will be up to us to mobilize the silent majority to demonstrate that this alliance from a politician's point of view, they prove to have been a strategic error, and that women and of course trans individuals as well I don't need to leave them out. Anyone who become prey, who can become pregnant will not accept their fate as collateral damage in a battle for political power. Lawrence later would ask no less of us. Thank you. Yes, I was muted. I immediately said thank you so much that was a wonderful. We started with history we, we were able to examine the strong forces from both the Catholic Church and other Christian churches in this political battle. I have a few questions that I'll try to weave into our discussion. I think I'd love to start going back. Speaking about the forces from one particular branch of religion that have played such a strong role in everything that has happened in our country. In the first year ethics course here at Harvard Medical School we talk all the way back to Horatia store and and the religious underpinnings of his efforts, as well as. There's a one question here, asking us to talk a little bit about how other beliefs and other opinions other religious views differ from those of Christians we do live in a pluralistic society where there are many, many different religions. That's something you you could speak to we we address it in some of our coursework at the center. There are certainly a wide variety of opinions and the belief that life begins at conception or early on is not, not necessarily the majority. Right, right. Before I answer I want to just see if I can get my screen so that I can see better I hope this doesn't kick me off I'm going to try this on my back. Well, no, but I, but I see you and you, you all can see me. So, yes, I mean one thing that's, you know, kind of has rattled around in my mind that of course, there are religious traditions under which abortion in some circumstances is not only acceptable but almost almost a duty to bring, you know, greatly compromise life into the world to suffer and die that kind of thing. So, the court has simply accepted as Justice Steven said in his descent in the Webster case on one paradigm, and ignoring the fact that not only as the question poses, you know, many different religious beliefs about when life begins and so on. But on abortion per se. There's not a historic tradition of regarding all abortion as ethically unacceptable and I mean quite the contrary people know I'm sure that early in the history of the Catholic Church abortion was not considered a sin before quickening early in the founding of this country abortion was as we all know but not prosecuted as a crime so we've had a narrowing over recent decades of our focus on how society should think about this decision. Absolutely, I think that you mentioned it early on in your discussion the excellent work that you did called but I believe it's called before row and it has a longer title than that I know it's available online and I share it with a lot of my students and I think there's a correlation of voices and thoughts around the time of road before just shortly before it, and around that time frame, and I think it is important to acknowledge here especially looking at some of the questions in the chat that I'll bring up to you that 80% of Americans believe that a right to abortion should exist under almost any polling that's done, and the vast majority of them would have some limitations but certainly would not create limitations to the extent that are being contemplated for example in Texas so it's, it's not necessarily a given that everyone would agree that abortion should be overturned and in fact the United States feel the opposite. And that was certainly the case in 1970 at the time of row and so as you described in your talk there's been an incredible shift change, you know, row was not as controversial in 1970 when it happened as it is today as I heard you describe. Yeah, in fact, polling in the immediate aftermath of the opinion show the support for abortion actually went up in the country. And then it just became was it was turned into such a political football on in the book that you mentioned the longer title is before row against Wade voices that shaped the abortion debate before the Supreme Court's we have, and we did, we did it as teaching material and in fact the whole book is available through the Yale Law School Libraries website as a free download it's meant to be out there for people to. Yeah, it's a wonderful, wonderful resource and that you've made it as a free download is absolutely amazing I encourage everyone to look it up. I'm glad you've discovered it because you know a lot of the documents that we dug out of archives and so on are not commonly available, but anyway, we went one document in there which was actually published in newsweek magazine, which describes on the back of the social hall in a church in California, after mass the Republican Party had it was allowed to set up a table, where people could stop by on their way home after mass and change their party registration from Democratic to Republican, I mean, stuff that I mean there's not much subtlety and how we got to where, how we go to where we are today. There's a series of questions in our chat that talk about basically whether or not the question of when life begins has been answered scientifically. There, the position of the person who is writing these questions, I'll try my best to summarize but is basically that there are that based on science whether it be a discussion of embryology or genetics that life begins immediately at conception, and I would just throw out there as somebody who's trained in embryology in obstetrics, and in the science of reproduction and that I do a lot of work on this that that is not something that has been established scientifically that life begins at conception and answer that question and fact there's only one embryologist that would support that viewpoint, the remainder of all embryologists who speak to that question would not agree that it's some sort of settled statement that life immediately begins at conception. That said, there are people who believe that, you know, we're, we're talking about this, this framework of balance balancing a state's interest in protecting a developing fetus that at some point and we could define it for the purposes of this discussion of sustainability becomes something that state could have a strong interest in using the, the current existing framework that will slowly go away, or shortly go away versus the, the rights of a woman to bodily integrity and also frankly to protect herself from the dangers of what, you know, even with our modern advances, bringing a pregnancy all the way to term and delivering is more dangerous than many, many surgeries that we do than many other things. Tell me about it my daughter, I had a baby eight months ago that they had to take early because she did all a preeclampsia. Exactly. You know, with medical care, thankfully everything turned out okay. But, but you know, read about maternal, you know, morbidity and mortality if she hadn't had access to good medical care where the doctor said, Hello, you're going in today. You know, who knows what would have happened. Exactly. And even births that go well can still have incredible complications. Even afterwards we have a number of Perry more, you know, Perry delivery deaths that we can't even explain but one question in our chat is, What do you think the motivations are for this higher priority of this incredible political action, higher priority given to 12 week fetus over a woman's right to health. Since there has been more diversity among non Catholic churches in the past as you point out and even diversity among Catholics and Christians in the past. What, where does this come from is it. Do you have any thoughts on that. You know, sort of, you know, feminist thoughts on which is that it's a lot easier to be in love with an instant little fetus than with a complicated adult female person in the world who has needs and makes demands and, you know, doesn't always do what society wants her to do and you know, if abortion didn't involve women, it would be no more controversial than tonsillectomy. The reason it's, I mean, not everyone's going to agree with me they'll talk about fetus that I stipulate to all of that, but really it's the societal devaluing of women's lives. And, you know, I've gone to a few events here at Yale Law School and talk about the huge racial disparity in pregnancy outcomes by race. And it, you know, when I first heard this I could hardly believe how, you know, so how do we explain that well obviously it's the devaluation of black lives. You know, that's, that's the kind of canary in the mind but it's really the devaluation of female lives generally I think. I tend to agree and I think it leads us beautifully into another question that sort of delves further forward into your talk about how Roe was decided on the basis of privacy because it predated any kind of jurisprudence that would support women's equality, you know, that Ginsburg's efforts were exceptional, never got things quite as far as they needed to go before Roe was decided. The question is now that there is greater jurisprudential development on gender equality. And why can't we move towards that in our legal jurisprudence obviously there's there's no support for that in our current in the current court but but would that be a possibility in your mind in the future. Actually, Planned Purity Against Casey which you know kind of reformulated the right does have equality talk in it. And doesn't mention privacy. I don't believe I don't think the word privacy even appears in Casey. So it really is much more of a due process, equality opinion. And some of the briefing in the dobs case in the Mississippi case does offer the court pathways to think about equality but as you said that's not. That's not something they're too likely to respond to but I think, you know, Chris I love Ruth Ginsburg as much as anybody but but she was a historical in her complaint. That Roe should have been based on equality because as I said in the talk and you know it was thanks to her. We got a jurisprudence of equality, but it hadn't happened yet. It hadn't happened then. And of course, you know there never been a woman on the court. The court was you know these nine old guys, and if you read Roe and nobody goes back to read Roe but if you read it it's a surprising opinion because it's really about the rights of doctors. Women don't play much of a role in Roe. And so why is that it's because the the justices I think we're responding to the needs of their peers in the elite professions and so the AMA which actually had, you know in the 19th century had had led the charge to criminalize abortion came or have come around in the late 1960s early 70s to supporting reform decriminalization, whatever. And because doctors like Jane Hodgson, whose name, maybe people know, I thought of her when Texas passed the vigilante the vigilante law because Jane Hodgson from Minnesota, Mayo trained. And I think that was a significant person in those in the early years and into the 1980s on. She had a patient who had contracted German measles and the first trimester and, and she said to the patient, if you're willing, I will do the illegal this is before Roe. And I'll make, I'll make a test case out of us. And the patient said yes and she did. And Dr. Hodgson called the police and she said I've just reformed the abortion come and get me. And they got her, and they arrested her and she was prosecuted and she was convicted. And she was about to be sentenced when Roe came down. And I did a little work for the book in her collected papers which were in the Minnesota Historical Society in Minnesota History Library in in St. Paul. And, you know, she was one gutsy person. But it was that kind of thing and her article in the Mayo, whatever it was alumni magazine was in Justice Blackwood's files. When he wrote the decision, wrote the opinion and Roe. So, so they were responding to what was happening to doctors who, out of their good conscience and effort to practice good medicine, were helping their patients terminate pregnancies. But women, women have only walk on roll and roll this way. Absolutely. I want to have a few more minutes. There's been a lot of discussion in the chat and some of it we can't quite get to, but there's a fascinating question raised that's, that's a little bit tangential but I think really important. I wonder if you're familiar with some of the new technological developments of the artificial uterus. The reason I find this this question fascinating it's been raised in a number of talks recently is it. It allows us to consider whether there is a right to terminate a pregnancy ongoing yet not yet allow the state to then continue that pregnancy going forward. The artificial wounds are currently obviously not available to for any utility at the moment, they will probably in the next 10 years be available for for severe prematurity. So to help, you know, infants born in the in the 20 week range reach maturity so that they might survive. There is the potential for them to be available for even earlier terminations as a way to continue a pregnancy and so I know Glenn Cohen from our Petrie Flam has raised this topic in the past and here in the chat one of our participants has raised this as a question. How do those developments affect our conceptualization of a woman's right to make these decisions. Yeah, actually, I had a student who wrote a paper on this. A couple years ago I was co teaching with Rita Segal of course on parenthood and artificial reproductive technology and all the implications. So, you know, my instinct is to say, I'm just refusing a woman's request for an abortion amounts to forced motherhood and should not be tolerated. You know, to insist that a fetus be placed in one of these artificial wounds and plus term on, if that's not what the woman who conceived this entity. It's forced motherhood on the same moral basis. And, you know, I'm sure you can get a profound argument going and I'm just talking off the top of my head and I'm open to, I'm open to persuasion I'm open to arguing. But it seems to me that if we're talking about women's dignity and autonomy as the heart of the question. Not everybody believes that that's even relevant but those of us who believe that's the heart of the question of whether a pregnancy is brought to term in somebody's uterus or, you know, in a plastic box of some kind should shouldn't make a difference. Yeah, it's a really interesting question for me to grapple with again there's a lot of passion and in the questions that are being placed as we would have expected in the chat. And, you know, just to answer some of the things that have been said as again as an embryologist to somebody who practices and reproductive medicine I don't believe the science supports that life begins at conception. And my, my, my frame when I think of a woman's right balanced against this potentiality to terminate a pregnancy has a lot to do with her assessment and maybe this is my bias as a physician, her assessment of the risk of going forward with a pregnancy. And you've now alluded to. So I sit there very comfortably, but, but we do proceed forward with termination and pregnancy when a person isn't really thinking about the risk of going forward and the risk of a delivery or carrying to term, but instead thinking about whether or not they want to become a parent, and I support that as well to some degree but it's a little bit harder, and it's a little bit, it's a little bit tougher when you start thinking about that. Especially when I speak with students who are uncomfortable with some aspects whether they're even identified their position on this highly politicized topic with they're just feeling uncomfortable with it and I think it gets to the heart of that matter. The forced motherhood of courses is not something I would have a support. You know, the issue of what to do with the leftover fertilized eggs from IVF is an issue that, you know, it was a non trivial issue. I guess that actually a student just last night was telling me, his, his tail on something I never had heard of that. His wife had had a couple of miscarriages caused by it. They had no fertility issue easily pregnant couldn't carry the pregnancy because the fetus had not not tries to meet 13 but a related kind of thing that caused miscarriage and so they decided they needed to go for IVF and select on, you know, a fertilized egg that was not going to have this problem when they now have a couple of healthy kids. So I, but he said we had so many eggs because we're because fertility was not our problem. I said, So what are you doing with all those eggs. He said, Oh, we don't know. That's the question. Yeah, it's very difficult. They're, you know, couple struggle with that with eggs and embryos as well. Any final thoughts we have about six more minutes. Some of the I'm slowly scrolling through and trying my best to catch up with everything that's in the chat. One person pose this would enacting the era obviate the need for abortion laws, or will this issue to minimize the value of women in our society. It's an interesting thought is, you know, would would would enacting a law that guaranteed equal protection, obviate the need for abortion laws. Of course, Phyllis Laughley I don't know whether people saw the mini series of Mrs America that ran during the pandemic to Phyllis Laughley, who was the leading opponent of the era. She said the era would accomplish two things would constitutionalize the right to abortion and would bring women into the military. So we have a constitutional right to abortion we have women in the military we don't have the era. And, you know, the pro era forces at that time were busy saying no wouldn't necessarily constitutionalize abortion there's an interesting, you know, disconnect there. You know that was that would have been the quality route, which, you know, I think Ruth Ginsburg was quite right to say that would have been a firmer footing as a constitutional matter for the right had it been available. Yeah. I agree with that. Let's see. I can't see anything else in here but I wonder if you could. That's different, you know there's a lot of repetition of some of the things we've already addressed. The one thing that hasn't come up in the chat that I think would be really interesting is if you could speak to how you see things rolling out I agree with you I think row will be overturned, and that will become an issue for states to address. I think given all of your experience and your expertise what you see as the future as states go forward with enacting their own potentially their own constant, you know state constitutional rights to to abortion, obviously on the coasts and you know we know which states will be which but, but how will that look. The one thing we don't know is how mobilize how mobilizing that situation would be because half of the electorate are women. And, you know, women in in these states, well a we know half the lecturers women I'm not assuming that every woman is pro choice we know that's not the case. We do know that more than a third, you may know the current data but I think that more than a third of American women will have an abortion sometime in their reproductive lifetimes and so whether somebody supports the right to abortion doesn't they often end up terminating a pregnancy. So, will this situation be so mobilizing and motivating in states that are trying to do what Texas did and what I guess they're Arkansas is now on the verge of doing that by legislation, they'll protect the right. That's really up to up to we the people. And I think that's kind of the only, the only route, or we're going to have a country where you're like an underground railroad of, you know, women in desperate conditions traveling long distances to states that will let them exercise their rights to autonomy. The first or maybe second document we have in the, in the book is a little type piece of paper that I found in the archives, it might have been from Larry Lader's files on much but it was in the archives at this lesson your library. And it's called on emergency instructions for going to Japan. Yeah, told number to call you know how to do it, what to say to the taxi driver in Tokyo and this kind of thing. And, you know, are we going to go back there. It's possible for some people. I think we have one minute left but there was a very astute comment as we were talking about the electorate that noted the extensive photo suppression laws, and how those will affect this as well. So I think that's a good point to think about that it's becoming more and more difficult for us to express our views at the ballot box. I've found this a wonderful conversation. I know there's been a lot of passion in the, in the, in the chat. And just to address some of some of that passion what I, you know, I, the statements that I've personally made about my beliefs on how about when, whether when life begins as scientifically proven I will stand by. As you know we were talking about that there's still a balance there's still a state's interest in protecting a developing pregnancy it's just about figuring out where that balance lies and I actually always have loved the framework of, of creating a balance between those interests, which I think if I understood your, your excellent talk correctly you were also very much in favor of that balance framework as it was written. I learned so much and hearing from you today thank you so much for for agreeing to give us this talk today. Well thank you I'm just sorry it's virtual and I would have enjoyed being a Mass General and maybe I'll get to meet people in person someday. I would love that. That would be wonderful. I hope we can have you back. Thank you to everyone for participating and for engaging and what's a really difficult topic for all of us and I'm really grateful for all the viewpoints here. Bye bye.