 behind the Constitution was drafted. The Constitution is drafted. There are explicit provisions in the Constitution for the perpetuation of enslavement. There's also an acknowledgement that the United States has to stop importing enslaved persons from outside of the Continental US by 1808, 20 years after the Constitution is ratified. That really does set in motion a landscape in which slavery not only becomes part of the political economy and many of the states in the Union, but the perpetuation of slavery and hence the perpetuation of that economy depends on actual reproduction, like literally built on the backs of black enslaved women. So the bodies of those women become valuable, not only for their labor, but because of their reproductive labor itself. I'm Thomas Jefferson who did many things during his time in this country, including found the university where I received my undergraduate degree said that of all of the slaves that he held on his plantation, Monticello, he valued most the woman of breeding age who could bring forth five or six new slaves. He was more valuable to him than the strongest buck as he put it. So again, very much an economy of the body, an economy built on enslavement and the absence of reproductive control. Now, that history is utterly absent in our accounts of the Mortal Amendment, the Reconstruction Amendment, it's certainly absent in the Dobs majority account of those amendments as well. The right to privacy that undergirds the right to choose an abortion comes from a decision in 1965 called Griswold versus Connecticut where the court determines that there is a zone of privacy into which the government cannot intrude. And it's sort of rooted in the concept of marriage and the marital couple. It's later expanded to include individuals, but it stands for this principle that there are certain decisions that are so personal and so integral to the formation of the person and personhood that they cannot be made under the compulsion of the state and parenthood is one of those things. And that's always been sort of the way we've talked about this idea of liberty and privacy and intimate life. That is one vision, I think of privacy. And it's certainly a very compelling one, this idea of it being inextricably intertwined with the formation of person and personhood. But I think there's another way to talk about it that thinks about this question of our history and reproductive justice. And that would be to understand that the reconstruction amendments, the 14th amendment, which guarantees our liberty and that the government cannot deprive us of our liberty, absent due process of law is ratified with an anti-slavery ethic undergirding it. The reconstruction amendments are purposefully intended to remedy the conditions of enslavement. The 13th amendment eradicates slavery, abolishes it. The 15th amendment enfranchises black men. And the 14th amendment is supposed to respond to all of the vestiges and indicia of enslavement. So the fact that those who were enslaved were ineligible for civil marriage. The fact that those who were enslaved had no control over their families and could see their children or their family members sold away from them. The fact that they had no control over their labor and certainly no control over their reproductive capacity. The 14th amendment is meant to respond to all of that. So the idea that the court asserts and dobs that there is no right to an abortion because such a right isn't textually enumerated in the constitution of the United States is to overlook this very clear history where the 14th amendment is purposefully drafted and ratified to eradicate slavery and the fact that there was an entire population who lived under conditions where they could not marry, they could not control their children and they could not control their own reproduction. And so the Dobs opinion, I think gets it wrong. And it gets it wrong on a number of different accounts. It gets it wrong on history. It gets it wrong in terms of the impact of its outcome on certain populations. It will certainly impact minority populations more forcefully than others. And I think we're seeing the fallout of all of that right now. So that's probably a bigger answer than you were hoping for, but I hope it kind of situates us. It's so helpful because part of the purpose of this series is to talk about how the public policies and legal structures that we're talking about today have long histories and genealogies that are important to note and to recognize. And through that, we understand a deeper understanding of the intent and the contradictions within the intent. And we also are able to think about us in this moment as part of a long trajectory that is going to have impacts for decades and decades to come. So I wonder if you can talk about, therefore, some of the ways in which the reading of the Constitution in Dove's feels disruptive in some ways. When we think about precedent, when we think about, typically when we think about the Supreme Court, there's a huge reluctance to overturn precedent. And the idea of overturning precedent becomes a question that a lot of people have of how did it get disrupted now? No, it's a terrific question. The Supreme Court, like most courts in the Anglo-American tradition, it's one that's sort of rooted on a slow and incremental development of the law, like it builds on precedent and the way you sort of have departures from precedent is not necessarily to depart from precedent entirely, but rather to distinguish the precedent from the facts at hand. So it's sort of like sort of minor moves away from the precedent. There have been circumstances, of course, where we have departed from precedent and the court has made clear in a number of cases, including Planned Parenthood versus Casey, which is a 1992 decision affirming the right to an abortion, but also making clear the sorts of factors in Indisha that courts have to consider when determining that it is appropriate to depart from precedent. That you think about a lot of things. You think about whether the decision was one that is wrong because the previous court failed to appreciate some factual information that was unavailable or was overlooked, but is now available. Maybe you think about whether the decision is one that has proven unworkable, like the court had a good idea, but it's just actually proven to be terribly difficult and unwieldy to actually implement. You think about things like whether individuals have come to rely on that decision going forward and have sort of organized their lives around the prospect of having the decision and whatever rights it confers in full view. Those are the sorts of things that you're supposed to think of, but you were exactly right. The decision to depart from precedent is an incredibly weighty one and for the court to have legitimacy, indeed for the rule of law to have legitimacy, it has to be clear to the public that departures from precedent are principled and not necessarily rooted in something like the views of a particular cohort on the court. It can't be the case that something is overturned because this current court does not like it or finds it objectionable because if that's the vision, then we're just going to be oscillating back and forth between different normative perspectives over time. And that's not the point of the law. And so there have been lots of times when take Miranda, this is the 1965 case that required that individuals be read their rights before being arrested. There's lots that you could say about Miranda and among some quarters of the court, certainly since it was decided in the 1960s, there have been critiques of it. It's always been over, it's always been appalled as just chief justice Rehnquist once said, because it has become part of the fabric, people have come to rely on it. I don't necessarily believe that it's a great decision, he said, but I respect the fact that it's become part of the bedrock of criminal procedure. And for that reason, I am going to vote to uphold it. And so, you know, sorry to Cicis really becomes a question of principle and precedent over preference. And I think what is so difficult for so many about the Dobbs decision is that it's really clear that whether or not you believe that the constitution protects a right to an abortion, the reason why this decision happened isn't because of law per se, but because a newly constituted court had six votes or five votes in case of overruling to do so. And then in the context of something like, as you're speaking, I'm thinking of something like Brown v. Brewer, right? Where the idea of overturning precedent had a very kind of principled undertone to it, correct? Well, I mean, I think that's a question of timing and context, like at the time it was decided many people thought Brown was completely unprincipled and its overruling of Plessy was nonsensical. And, you know, it's a unanimous decision. I think because it is unanimous it's pretty thin on legal reasoning. I think that's the sort of politicians, you know, trick that Earl Warren uses to get everyone to sign on, they say as little as possible. But I think one of the ways that you can fit an understanding of Brown into that idea of what Starrie DeCise's demands is that the court says in Brown quite clearly that our understanding of public education has evolved since the 1890s when Plessy was decided. We did not understand public education to have this citizenship enhancing function. We didn't understand education as a crucible of citizenship. And so the idea now that we would segregate children on the basis of their race for purposes of public education seems anathema to this democracy enhancing project. And more importantly, they note that there are new facts. They discuss the doll study, for example, which has since been discredited, but the idea that segregation actually imbues black children with feelings of inferiority, the court finds very meaningful. But I think one of the ways that you can reconcile the overruling of Plessy with those principles is that they identify a new set of considerations and new set of facts. I don't know that we get that in dolls. I wonder if you can also talk about when we think about making space for diversity of thought within the conversation around reproductive rights and the distinction that I think you're gesturing towards in terms of private views and public policy. So I wonder if you can talk us through because at the Ford School, we talk about diversity of thought as I'm sure you do it at NYU. And one might be pro-choice in terms of their own individual ideology, one might be pro-life, or in terms of their own individual ideology. But I wonder if you can talk about that movement from the private to the public and public policy and how we think about making space for diversity of thought in the realm of reproductive rights. And at the same time, I'm wondering, has that become too fraught? Is that possible? Is there something about this kind of personal beliefs, public policy porousness that we need to mark, to signal, to talk about, to articulate in this conversation to help people understand the magnitude of this kind of sweeping policy change? It's a really great question. And let me approach it from two different vantage points. So one, just sort of a kind of longitudinal arc of the law. So in 2016, the court heard a case called Whole Women's Health versus Hellerstette, which was a challenge to two Texas laws that placed restrictions on abortion providers. They were challenged. And this was during the period when just after Justice Scalia had died, but before he was replaced by Justice Gorsuch. And so there were only eight people in the court. And the court struck it down by a vote of five to three with the chief justice being among the minority. In 2020, a virtually identical law was challenged out of Louisiana. And I mean, again, the fact that the court took it up was incredibly surprising because it was a twin of one of the laws that had been challenged in Texas. So it seemed quite clear that the district court below should strike it down, which it did, but the fifth circuit upheld it. And so, you know, why the fifth circuit did this, who knows, but the court felt like they had to step in to correct it. And many people worried that the court would use it as an occasion to further limit abortion rights or to overrule Roe versus Wade or Planned Parenthood versus Casey entirely. This was in 2020. And Justice Ginsburg was still on the court. So there was a five to four bear conservative majority. Interestingly, the chief justice voted with the court's liberal block to strike down the law. And he made very clear that he had not had a change of heart with regard to abortion. He's been very clear about his reservations about the right to an abortion that his view that it is not textually expressed in the constitution. And he made very clear that that really hadn't changed. But what had changed was that four years earlier, the very same law had been reviewed and the court had invalidated it. And so he said, Starry DeCises compels my vote here. Like I'm not following my preference. I'm following the precedent. And in this particular case, Dobbs in 2022, just two years later with an entirely different court, Justice Ginsburg having been replaced by Justice Barrett in 2020, we get a completely different outcome. But the chief justice, even though he is among the court's conservatives and he votes to uphold the Mississippi law challenge, he does not vote to overrule Roe and Casey. And he argues that it's not necessary. Like all Mississippi had initially asked was to determine whether their law was constitutional. And the court could decide that question without actually disrupting any settled law like Roe and Casey. And he pleads for a kind of judicial restraint. And it's one that's not forthcoming from his conservative colleagues in part because they don't have to accede to his wishes. They don't need him for a majority to do what they want in this case. So there is that aspect of it. Someone who is I think a quite dyed in the wool conservative voting to uphold abortion rights in one instance or for more limited opinion in the instance of Dobbs. Separately, I should note that there's actually a very lively conversation going on among certain aspects of the black community with regard to what it means to be pro-life, right? So there's a group, mostly in the South of African-American legislators who call themselves whole life Democrats. They're mostly on the state level. Among them is Katrina Jackson who is a Louisiana state legislator who was the one who sponsored the abortion restriction that was struck down in gene medical services in 2020. And I think she's an example of how you can think about the question of reproductive rights and justice along a lot of different lenses. So she is steadfast and her group of whole life Democrats are steadfast in their opposition to abortion rights but they aren't like other members of the pro-life community because in addition to being opposed to abortion they're opposed to the death penalty. They are opposed to state violence against black and brown bodies and the absence of accountability when there is violence by the state against black and brown bodies. They are in favor of expanding Medicaid. They are in favor of expanding TANF benefits to needy families. So they actually have a kind of redistributivist ethic that nests I think uncomfortably in the traditional conservative movement yet they understand themselves to be pro-life. And so I think that is a really interesting ideological pairing where in their view to be pro-life is to be in favor of all of these other things that I think traditional conservatives would say are outside of the bailiwick of conservative thought. And what's so interesting about some of your writing is that you trace the complexity of that history in terms of the relationship between race, policy and reproductive rights. And I wonder if you can talk about the ways in which it's been quite nuanced in terms of people of color is specifically the black community and the different ways in which people within black communities have thought about the issue of abortion. So it's not as easy to pin down as one would think in terms of when and where black people enter on this debate and what side they end up on. And I wonder if you can just kind of trace that history for us and add some complexity and nuance there. Sure, I mean, I'm happy to talk about just sort of the various views within the black community. I think they are various and it's worth talking about. I think it'd also be worth noting, it's not clear where Republicans or Democrats exit and enter here. Historically, it was the Republican party who favored reproductive rights because Catholics were more likely to be Democrats. And there's some very prominent Republicans who do a lot to set the stage for expanded access to family planning and contraception and abortion in the United States. Ronald Reagan as the governor of California in 1967 signs California's Therapeutic Abortion Act into law. That law liberalizes abortion access in California, one of the largest states in the country at the time. Dwight David Eisenhower, not only the hero of World War II, but later an American president is the first chairperson of the Planned Parenthood Federation of America, first honorary chairperson. George H. W. Bush, while he was a Republican congressman from Midland, Texas, was so supportive of family planning measures that his colleagues in Congress referred to him as Rubber's Bush. And it goes on and on and on. Richard Nixon as president, as a Republican president signs into law title 10, which provides federal funding for family planning and was one of the funding mechanisms that organizations like Planned Parenthood until a few years ago actually relied upon for a lot of their funding. And Barry Goldwater, the father of modern conservatism was very much pro-choice because he believed that reproductive control was necessary to deal with population growth. And that relates to a new strain of argument that is being cultivated, certainly among pro-life groups, but I think with an interest in cultivating minority support for anti-choice policies. So one of the narratives that I think is really being advanced right now is that reproductive rights and abortion specifically are related historically to the history of eugenics and eugenic control over reproduction in the United States. And the idea I think comes across most forcefully in one of Justice Thomas's opinions. He wrote a separate concurrence in a case called Box versus Planned Parenthood of Indiana and Kentucky in 2019. And there he crafted this really selective and incomplete history in which he tried to graph the history of abortion onto the history of birth control and Margaret Sanger and her associations with the eugenics movement. Now, the history of abortion and the history of birth control are two very separate histories. So it's not an apples to apples kind of historiography. So that's worth talking about. But more than that, I think it is really problematic to suggest that state efforts to sterilize individuals, which was the chief effort of reproductive control that the eugenics movement put forth to equate state control of reproduction and sterilization with an individual's decision to terminate a pregnancy or to use contraception. Like those two things seem completely misaligned. But it is a very, I think potent narrative. It is one that I think has gotten a lot of credence in certain quarters, certainly among members of the black community, in part because I think it resonates with narratives that were in circulation in the black community in the 1930s around with Marcus Garvey, who very much believed that efforts to introduce family planning on by Margaret Sanger and others were intended to limit black political power by limiting black children and limiting the number of black people born. It resonates with some of the arguments that were aired by people like the Black Panthers who very much believed the expansion of Title X and access to reproductive and family planning in the 1960s and 1970s were part of a governmental plot to limit the black population and to diminish their growing political power. So I think it has some legs because it is associated with other kinds of anti-government narratives that have been in circulation within the community for some time. What's really interesting about it is even when these narratives were circulating in the 1930s and again in the 1960s and 1970s, they were largely circulated and proliferated by men in the movement with the women, like black women in the black power movement, black women in the pan-Africanist movement saying, we actually want to be able to control our families because we wanna participate in this movement and we can't do that if we're home raising all of your children. So this idea of reproductive control being a means of facilitating political participation on the part of black women is part of the dissenting voices that are really suppressed and submerged in these narratives. And what's so useful also in your discussion there is also the power of African-American studies and I hear it in your historical analysis. What's so interesting to me is as a legal scholar, your interdisciplinarity in understanding these issues. And I wonder if you can say a little bit more about what that interdisciplinary gets you in terms of the historical perspective, the connection to African-American studies and other ethnic studies fields, the connection to gender and feminist studies, queer studies, all the different ways in which to think from a nuanced perspective is to bring in all of these interdisciplinary tools. And I wonder if you can talk about how that advances the conversation. Yeah, it's such a good question and I have to say I come by it slightly dishonestly because I've just been really privileged to be in institutions where the expectation of interdisciplinarity has just been embedded to the point where it's not even an expectation at all, it's just sort of a default position. I went to undergrad at the University of Virginia where I think you actually live history. I'm like a very complicated and problematic history but living history nonetheless. And I think that was one of the places where I really started to think critically about the ways in which the institution of slavery could both prop up a society and economy but also be its ultimate downfall in a lot of ways. Yale Law School is a law school that I think unlike most law schools, recognizes it's not really training actual lawyers, it's probably training professors. And I think interdisciplinarity was just part of the ether there as well. And I had the very good fortune of starting my career at Berkeley where there's just wonderful, wonderful ethnic studies, black studies, feminist studies there. And I just lapped it up like mother's milk while I was forming my identity as a scholar. And to relate this to the work that you all are doing and sort of the question of public policy, an education like that where you are reading history, like taking all of these different viewpoints and critiques into account as you sort of form your own identity, we are losing this in our everyday kind of understanding of what it means to have a liberal education. It's not surprising to me that many of the states that are moving to restrict access to reproductive rights are the very same states that are restricting voting rights and the very same states that are banning books and making it impossible for us to have an honest conversation about our history in the public schools. Like that's not a coincidence. That's entirely by design. I think it's not surprising that the Supreme Court could write a decision over ruling 50 years worth of precedent and not even acknowledge that the 14th amendment has anything to do with slavery and the conditions that black women experienced during enslavement because we don't teach that in our history. I didn't learn that until I went to law school and read Dorothy Roberts. I didn't learn that until I was pointed to the ratification debates and I went in there and found all of this stuff about anti-slavery and the 14th amendment and what they were really trying to do. And if we don't talk about this, if we don't make this part of our intellectual history that we pass on because this was what it means to be an American, if we don't understand it as part of just the crucible in which we form citizens, then we're not going to have an honest conversation about what rights mean, what the constitution means. And we're gonna have more decisions that look like the ones in Dobs. It looks like a decision that understands the constitution from the perspective of 1787 and the only people who actually had a political voice. Right. And let's pick up that thread because a lot of the conversation after the Dobs decision was about what's next. And the legal arguments made that could be applied to marriage equality, to voting rights, to a whole host of issues. So I wonder if you can talk about that particularly in your conversation around the 14th amendment, but just in general, the real concern that many have about this being the beginning of several interventions that might be in store. Sure. So the Dobs opinion is really focused on the right to abortion and the logic of the decision is as such. There is no enumerated right to an abortion in the texts of the constitution. And if the constitution doesn't specifically say that there is a right to an abortion, then that means the only way we can recognize it as a right is if that unenumerated right is somehow deeply rooted in the history and traditions of our country. And the majority says that that's not true either. So there's no textual support for it and there's no sort of historical or traditional support for it either. Therefore, it cannot be a right. Now, again, I want to make very clear that I object to this idea that there's no textual support for it. I think implicit in the understanding of the 14th Amendment's guarantee of liberty is a kind of prohibition on the lack of bodily autonomy that was understood to be part of the conditions of enslavement. But again, the majority does not think about that and doesn't mention it and it's not part of the analysis. Under that logic that there is no textually enumerated right and this is not deeply rooted in the history of our country, that leaves open the question of a range of other rights that similarly have been deemed protected by the Supreme Court through a reading of the 14th Amendment's due process clause, which allows every individual liberty and deprives or says the government cannot deprive you of your liberty without due process of law. So for example, the right to marry is not specifically enumerated in the constitution but it has been viewed by the court as proceeding from that grant of liberty and has historical and traditional roots in the history of this country. The right to marry a person of a different race proceeds from a similar kind of ethic and also an equal protection ethic that the state cannot prohibit you from exercising a fundamental right like the right to marry on such an insupportable basis as a white supremacist notion of racial homogamy. Likewise, the right to marry a person of the same sex is not specifically enumerated. It also isn't necessarily deeply rooted in the history of our country because until quite recently, most of the states have had prohibitions on marriages between persons of the same sex. By the same token, the right to use contraception is not specifically enumerated and there has been a history in this country of proscribing contraceptive views. And so the question, and I think it is a perfectly appropriate question despite the majority's efforts to limit the force of the Dove's opinion is if there is no right to an abortion, what stops the court from similarly saying there is no right to same sex marriage, there is no right to interracial marriage, there is no right to contraception, all of these things proceed from the same grant of liberty that once undergirded the right to an abortion. And so if abortion is overruled and why aren't these rights similarly imperiled? The majority says nothing more than the right to an abortion involves the destruction of potential life and therefore it's distinguishable from these other rights. And they sort of left it at that. Justice Thomas, however, wrote his own concurrence where he acknowledged that the majority tried to limit this to just abortion but he would go further, he says. And he argues that the entire line of the court substantive due process precedence which include the right to marry, the right to contraception, the right to same sex marriage, the right to interracial marriage, although he leaves interracial marriage out, all of those things are impermissible readings of the 14th amendment and they should be struck down at the earliest opportunity. So he's essentially inviting litigation to challenge those various precedents, Obergefell versus Hodges, which legalized same sex marriage, Griswold versus Connecticut, which legalized the use of contraception, Lawrence versus Texas, which legalized the prospect of same sex intimacy. All of those he said should be challenged and the court should strike them down. Now he's one person, it's just one vote, nobody joins him, but again, it's an invitation and it's an invitation to have litigation to just subject these laws and to make the landscape for these rights seem imperiled and threatened and chaotic and confused. And that as much as anything could be a deterrent or a bar to the exercise of these rights. So as you described that, one of the other things I know a lot of people have been thinking about is the power of the court. And very much feeling as though executive branch power, legislative branch power feels less potent in the face of a court that has such ability to be disruptive, transformative, however you wanna choose your words as it relates to our social order. And some might even feel quite saddened and cynical over the possibility of nine individuals having or actually five individuals or six individuals depending on the count of a particular ruling, having such a determinative effect on our society. And I wonder if you can comment on that particularly for public policy students who really hold a view of an expansive power and a hopeful power of the other branches of government. So let me say two things. One, I think one of the reasons why the court has been emboldened and empowered in the way that it has been is because the other branches are somewhat hobbled and they're hobbled by their own devices. They're hobbled by partisanship. Like Congress can't do anything right now because it is evenly divided and it is deeply, deeply polarized, right? So it's just really hard to get anything done through Congress. So think for example of the Affordable Care Act passed by Barack Obama as President Donald Trump vowed to repeal it. He tried to repeal it. It didn't work. John McCain famously voted thumbs down to repeal various provisions of the individual mandate. What did the Trump administration do? It didn't lick its wounds and sort of, okay, the people have spoken and the Affordable Care Act lives. The Trump administration immediately went and filed suit in a district court in Texas to overrule and repeal that provision of the Affordable Care Act. Using the unelected courts as a means of accomplishing something that could not be accomplished through majoritarian politics because of how closely divided the Senate was. That's very telling. The court as a minoritarian institution can be a place where your inability to get things done because you are not a majority can actually be discharged as long as you have some kind of power in the court and the Trump administration really worked assiduously to ensure that there were strong conservative voices in the lower federal courts. The presidency I think is similarly hobbled in a lot of ways, partly because the courts are active. So we saw, for example, during the pandemic and with the OSHA emergency authorizations that the president can act to deal with certain public policy and crises or emergencies, if you will, but the court can slap the president down and say that your power to act is circumscribed by legislation. The legislation doesn't allow you to do that. And it's a question about how we interpret this legislation. So the courts actually have a ton of power and their power I think becomes outsized when the other branches aren't able to do things. And sometimes the other branches aren't able to do things because they've hobbled themselves through polarization. And other times the court has sort of narrowed the range of movement that the other branches can undertake. But I think it's worth sort of thinking about the kind of hydraulics that occur as one branch exerts more power and the other branch diminishes in terms of their authority. I will also say that we are railing against the court or I'm railing against the court right now, but it's also the case in 1954 and through the 1960s that more conservative voices railed against the court as sort of unduly liberal and saw that as a dereliction from the preferences of the majority. So Richard Nixon when he ran in 1972 ran against the Supreme Court and the idea that the court was too liberal and Earl Warren was too liberal and activist. And I think the entire conservative backlash that we've seen in the court is a direct response to what they saw as liberal activism of the 1960s. So this goes in both directions. And I think this is just the flip side of this right now. What I think is different from the 1960s and 1970s is that we did not have an activist liberal court interacting with two branches of government that were hopelessly hobbled by polarization. So even if the court had exceeded if you view it as excessive their charge there was always a means for Congress or the president to check it and they often did, right? Now I think there's so much gridlock and dysfunction in the other branches that there's and we've seen that in the aftermath of Dobs like Congress can't pass the Women's Health Protection Act. The president really can't do anything in the way of an executive order in part because there really isn't scope to do so. And so I think that's a major difference from what we saw in the 1960s and 1970s at what we're seeing today. I mean, the court really does seem to have more power now because the other branches are kind of hobbled. And before I engage with some of the questions from our students, I wanna ask you one more thing which is this idea of the long game of policy activism. And while one of the things that we learned in Dobs was that over the last several years, there has been a concerted effort within state legislatures to essentially move things in a particular direction. And lobbyists who've been working the halls of state legislators that now are in position, if you will, to now create a whole set of 50 different state laws, right? So the decision comes down and then at the state level, there's been this groundwork laid, it appears, in many different states to be able to capitalize and to create laws that are quite restrictive or even more restrictive from no exceptions to a whole host of laws. So I wonder if you can talk about that. I wonder if you can talk about Kansas and if that is a harbinger of perhaps backlash against that kind of state activism. And I wonder if you can speak to what this tells us about the long game when it comes to this fight and the long game that's gonna be necessary as we think about the debate, as we think about women's health and we think about the larger message that I hear you talking about, which is the revisiting of the 14th amendment in ways that are quite as concerning. Sure. One way that you might look at this is especially if you're thinking about this question of racial justice as the center does. During the 1960s, where we were probably making the most progress in terms of racial justice, it happened principally on the federal level and the real issue is sort of how to reign in states, like recalcitrant states that were still impeding the rights of black and brown people and minorities within their borders. So things sort of shifted to the federal level, both as a matter of policy and in terms of adjudication and not surprising. I think where those who are interested in racial justice kind of missed the mark is that we ignored, I think, to our peril, the fact that states could also be, the state and local level could be places where racial justice could be achieved, like maybe not historically where it had been achieved, but could be cultivated as places where those interests could be achieved eventually. And it's surprising that we didn't do it because there are a lot of state constitutions that are more generative of individual rights than even the federal constitution is. Some state constitutions offer positive entitlements, not simply negative prohibitions on government, and that's critically important. By contrast, while I think liberals and those interested in racial justice were focusing on the federal level and federal politics, conservatives decided to lay a ground game at the state and local level. And I think we're now seeing how that strategy, which was carefully husbanded and shepherded for so many years is really bearing fruit. I just mentioned the campaign against quote unquote CRT in public schools. Part of that success is because they captured school boards, which Democrats didn't run for or weren't as excited to participate in. The interest in state legislatures was so profound among conservatives. And part of that I think is because you can get a lot done at the state legislative level and among the things you can get done is you can completely redraw the district lines in your state in a way that then influences congressional representation at the federal level, but also distorts the democratic process in your own state to mute the voices of those who object to whatever your preferences are. So it means that if you have a bare majority, which is often the case in some of these states that are sort of purplish red, if you can mute the opposition voices by drawing the lines in ways that limit their power, you can make your state look redder than it is. And I think that's in fact, what's happened. And what Kansas might show us is when we actually allow the people to go to the ballot box, they may take a more nuanced view of some of these issues than is the case when these issues are filtered through representative government and through the legislature itself. So in Kansas, it seemed as though a law that would, or the prospect of stripping reproductive freedom from the constitution and allowing the state legislature broad latitude to write really restrictive abortion laws did not resonate with a large swath of the population even in a state that views itself as very, very red and quite conservative. And it could be that conservatives in Kansas saw this not simply as a question of reproductive rights, but it's about state over encroachment into some areas of life in a sort of anti-libertarian way. But I think what you saw was that when the people directly go to the ballot box to register their preference on a question of policy, you might get a very different outcome. Two days later, when Indiana had its vote, we saw one of the most restrictive laws passed in the country. And I don't think there's that much in terms of ideological differences between Indiana and Kansas. What I think was the difference was that whatever the response of the people was, it was filtered through representative government in a state that is deeply, deeply gerrymandered so that any opposition voices kind of get filtered out. And instead, you just get this one representative of this district voting. And folks who are in the reproductive justice space make it very clear. They don't think that abortion is for most people a moral question. It's a gerrymandered issue. Like we have sort of gerrymandered this question to such a degree that individual representatives are compelled if they wanna keep their seat to vote in a way that prioritizes the needs of the most vocal among their constituencies. So then in that vein, and I'm gonna go to the next student question, the first student question, because it fits perfectly, how can policymakers promote, or policy analysts or advocates or activists promote a more rigorous and nuanced analysis of a set of issues, particularly in the context of gerrymandering, which is essentially a structural arrangement that flattens nuance. No, it's a great way to describe it. I think we are so used to thinking about these questions in silos. Like there is reproductive rights, there's voting rights, there's education rights. But I think what this moment is teaching us is that these things are all inextricably intertwined. And you don't get a law like the ones that are being passed in Indiana or Texas SBA, which has that completely unprecedented, slightly insane private enforcement mechanism. You don't get a law like that unless you have so configured the state legislature to mute opposing voices. Like that's what gerrymandering does. Like, so gerrymandering is a question of reproductive rights and justice too. In the same way, it is a question of education justice. And so we have to start thinking of all of these things together. I did a program with Monica Macklemore, who's a really prominent reproductive justice advocate in the South. And she talked about Mississippi, which a couple of years ago had pending in the state legislature a really terrible and terribly suppressive voting law and a bill that would be restrictive in terms of abortion. And she said, the feminists came out in force to oppose the reproductive justice bill, the imposition on abortion. And the reproductive justice advocates were trying to get them to bring their fire to the voting rights question. They're like, oh, we don't do voting rights. That's not our issue. Our issue is abortion. She's like, no, they're related. And so the abortion law or the abortion bill didn't pass, like it was defeated. The voting bill was passed and you saw its suppressive effects in the next election where a whole new legislature was ushered in and then they actually got to the abortion law that was restrictive and ultimately of health and dogs. And the interconnectedness I think is so important. So we have a student question and it comes from one of our students in the class, Racial Foundations of Public Policy. I'm so I'm saying hello to them. And one of the things that they're curious about is how your perspective changed since Dobbs and were you surprised around the legal context around the initial ruling? What did you learn from it? What surprised you? How did it shape your analysis? What assumptions had you made? I think all of us had made certain assumptions that got upended in terms of your understanding of public policy and legal precedent. So I was not surprised by this decision although I know many people were. I testified against the nomination of Brett Kavanaugh in 2018 and I said then that he would be a reliable voice to overturn Roe versus Wade and Planned Parenthood versus Casey. And I said that the threat to abortion rights was neither hypothetical nor hyperbolic. And I think I was roundly criticized as a fear-mongering hysteric. And 2018, 2022, four years, I was right. And I said so in 2018. So I'm not surprised that this has happened. I think it was very clear once they had a solid block of five and the potential of a block of six that this is what would happen. Elections matter, the configuration of the courts matter. I think the real question and the thing that surprises me is in the face of this and given how much the composition of the court has really influenced and shaped what's happened in terms of these decisions and the landscape they engender, it's like why we aren't having a more robust conversation about court reform, whether that's jurisdiction stripping or term limits or finding ways to just lower the temperature on the way the court's composition has these really impactful outcomes in terms of how we live our lives. That to me is the surprising thing that this hasn't engendered a more forceful conversation about court reform. Right. And one of our students I think right alongside says I'm still struggling to understand how the justices did not need a special justification to overturn Roe and how will legal scholars and advocates be able to move forward and work to reinstate abortion rights if the court does not recognize abortion as a constitutional right. So I think this is a question that's asking so what now and where do we go from here and how might we think about moving forward? So I don't want to be a pessimist about this and I don't want to dim your youthful fire in any way, but I'll be really honest, I don't expect this to change in my lifetime. Wow. This is a 40 year project of the conservative legal movement and they spent 40 years laying the foundation for this. And it happened in the last couple of years it happened in plain sight. They were not hiding the ball. We did not respond to the growing threat to it. And I hope that having seen what's happened we are more responsive to the other accumulating threats. Like I think the same thing is happening with voting rights. I think the same thing is happening with marriage equality. I hope that we are more responsive on those fronts than we were to this. I think if we want to stem this tide and turn this around and get back to where we were, we have to be prepared for a 40 year fight. And that may not be the answer. I think students are looking for but I think it's the reality of what we can expect. When conservatives went to the polls and they voted they didn't always get what they wanted. Sometimes they got Sandra Day O'Connor they got David Souter or Anthony Kennedy and not the full-throated conservatives that they needed to achieve an outcome like that. But they didn't lose faith and they didn't lose hope and they didn't stop voting. Like they voted for someone who literally was the host of a reality TV show but he promised them that he would get them what they wanted and they believed that and they were right. So again, policy is going to be hugely important. I think rebuilding some of the other institutions to be functional again will be important. But I will say even if Congress does manage to pass something like the Women's Health Protective Act which reports to codify the protections of Roe it will surely be challenged and it will surely wind up before this court. And I think you just don't get anywhere unless you think about the role of this court as an institution and democracy what it is and what it should be and what the ramifications of changing that are long-term. Cause I think it really is an important question that is not without upsides and downsides. So that's a pessimistic kind of answer and I'm sorry if I'm being a turd in the punch bowl about this but I think you've got to prepare for a longer fight than just four years. This is going to be the fight of your life. I wonder we have some students that's very powerful. We have some students who are interested in health policy and are thinking about this question from a health policy lens. And we already know that women are crossing state borders and moving and migrating to states where they can to get access and having to leverage all kinds of networks and resources for those who are interested in health policy who are thinking about healthcare access and what this means for healthcare access. How can we think about this and are there opportunities for policy interventions in other ways that address the question of healthcare access for women? Yeah, I think it's a terrific question. So yes, I think thinking about this along the lines of healthcare and health delivery services is really important. Here's something that I don't think anyone ever thinks about and I don't know why anyone, no one's ever really focused on it but there are only a handful of hospital corporations in the country. Like there's HCA, there's Dignity Health, I think there's Baptist Health or something. Quite a number of these large conglomerates are religiously based, which means that like dignity, for example, is Catholic. For years, these different conglomerates have gone and sort of bought up smaller hospitals in various regions. And if they're religious hospitals, when they bring all of those hospitals under the umbrella of a dignity or a Baptist or whatever, then those hospitals are obliged to follow the tenets of the religious faith if they're organized around those tenets. So for example, in California, where I was for a very long time, the ACLU brought suit against a couple of hospitals that were owned by Dignity Health because they wouldn't perform tubal ligations of women. And instead a woman had to deliver a child by C-section and then be stabilized and sewn up and then transported to a non-dignity hospital opened up again to perform the tubal ligation. Why isn't that being dealt with as a kind of like oligopolistic or monopolistic antitrust question? Like why isn't the imposition on women's health understood as emanating from a distortion of the market by the consolidation of hospitals under the umbrella of a particular religious group or religious hospital organization? I think that's one place where our policy imaginations could be a lot broader. I think there's a right intervention to be made by the Federal Trade Commission or to be thought about at the state levels by state fair competition, administrative agencies, things like that. That's something we can think about in terms of other kinds of policy interventions on the view of healthcare. I mean, I'm actually quite sympathetic to those like the whole life Democrats who marry their antipathy for abortion with an understanding that there must be access to more healthcare and prenatal and postnatal care, especially in the most vulnerable communities. Like, I think discussing more forthrightly are abysmal maternal mortality rates, abysmal maternal morbidity rates would be really important, especially making clear that those are particularly pronounced among minority communities and thinking about sex education, like going back to the public education system, like that has to be part of this calculus too. And the states that are the worst on abortion happen to be the worst on healthcare pickup rates, worst on sex education, that's not a coincidence. And one of the things that the students are also interested in is this idea about signaling. And I think that many of the students in the class are thinking about kind of the practical implications. And as you just spoke to, what are the other kinds of policy mechanisms that we need to be thinking about? But they're also thinking about this in terms of the signaling and what it might mean for people's desire to vote and motivation to vote. Some people saying it's a motivator and it gets people out to the polls. Other people saying it's a suppressant in terms of people feeling as though we put a certain candidate in office and then we still are seeing policies that we see as problematic. I wonder if you can talk about the symbolic power of the DOB's decision and what it might mean for political engagement, particularly for students who are really thinking about how to motivate political engagement. Sure. So I hope it is a catalyst for greater political participation. I hope it is that, like I recognize by saying that I don't think this is going to change in my lifetime. I've perhaps been suppressive. I hope not. I hope the fact that I just said that I don't expect this to change over the course of my lifetime actually catalyzes those of you who are of a different generation to do the work because the work is voting. And I hear the argument, I hear it from my students like I voted for Joe Biden and I haven't gotten student loan relief. But that's not how this works. And at the risk of sounding like someone of a completely different generation, I think our forebears who worked in the civil rights movement understood that sometimes you have to limber up and pack a lunch and stay hydrated and stay in the fight that the fight is longer than you. And you have to be in there for that. And we're lucky that we haven't had to do long fights. But maybe now we do. And I think we have to be catalyzed about that even if it feels hopeless. I think, I mean, the fact that you have two black women here one is the Dean of your public policy school that would have been unimaginable 200 years ago but it's imaginable now because someone fought a long fight. So it can't be the case that the prospect that there is no immediate change is suppresses you, diminishes the fire. It actually has to catalyze the fire because it is the only way forward. There's nothing else beyond this. Like you have to be in it. We don't vote because it's a panacea because it's a magic cure. We vote because it's medicine. And if you don't do it, you'll die. You take medicine not because it's going to cure you of cancer because if you don't, you're going to die. So yes, like it's not going to be immediately successful. It probably won't be. I'd be surprised if it was, but we keep doing it and we keep building power and consolidating our coalition so that we in time can turn this back. My last question to you is this our motivation for this entire series was to recognize the importance of history in shaping our contemporary public policies to acknowledge past injustices, to acknowledge policy genealogies and to use that as a set of learning tools, not to be bound and constricted by history but to use history as opportunities to learn, to grow, to understand. And we do that with our students and our faculty are really trying to think about that in the context of pedagogy and particularly in the context of talking about race which as you know, just saying the word, just raising the topic is controversial. And there was a moment as we know in 2020 after the deaths of George Floyd and many others that there was a willingness to talk about race and to adopt anti-racist conversations and for schools to think about anti-racist curriculums and now we're experiencing in many ways being in a very different place. So I wonder if you can just close us out by thinking with us about how we continue to assert the value and the importance of historical perspective, of a perspective that is intersectional, of perspectives that take into account anti-racist ideals and to think about how we utilize that in our conversations and our teachings to move forward in positive ways that expand resources for all. Sure, so I think William Faulkner in Requiem for a None said it best the past is never dead, it's not even past. And he was of course thinking about the South and sort of the gothic nature of slavery and its imposition and impact on present day race relations in his time. I think you could say the same thing for today. The past is always in the rear view mirror to some extent but we're also living it in a lot of ways. So I'm constantly reminded that this is a fight we've had before. I hear women who were deeply involved in the movement for women's rights in the 1960s and 70s saying like, I can't believe I have to do this again. We're always having to re-up our commitment to these principles and nowhere is that more obvious than in issues of race and racial justice. What we are seeing now, like this fight over whether we can be honest about our history, whether our public educators can teach that history in school, like this is the same question about access to knowledge that we had in the 1920s that gave birth to the idea of civil liberties. Like we're doing it all again. What does it mean to be a free society? It means to be able to grapple honestly with your past. And so courses like this, conversations like this are vitally important and you know they're vitally important because they're being suppressed. Right, that's the point of everything that we're seeing around the country to stop conversations, to stop dissent, to stop people from actually knowing the truth of our past and instead to advance a kind of uncomplicated vision of what it means to be an American when in fact our past isn't uncomplicated, our present is not uncomplicated and our future is not gonna be uncomplicated. Like if we want to be able to move the needle, to move forward, we have to be honest, we have to have hard conversations with each other and we have to be able to know our history in a way that is honest and clear and advances and proceeds from a position of actually learning from each other as opposed to demanding compliance with a particular vision of who we are. Hmm, Professor Melissa Murray, I wanna thank you. I wanna thank you for your brilliance. I wanna thank you for your perspective. I wanna thank you for sharing with us so many helpful and useful and generative ideas on behalf of the students and the Racial Foundations of Public Policy class on behalf of the Center for Racial Justice and on behalf of the Ford School for Public Policy at the University of Michigan, we thank you and we truly appreciate your willingness to be our inaugural guest for the 2022-2023 Racial Foundations and Public Policy series. Thank you so much. Thank you for having me. Excellent conversation and thank you for joining us and audience, we wanna invite you to join us on October 13th for our next conversation with Steven Thrasher, a professor at Northwestern University, journalist and author of the new book, The Viral Underclass. Until then, thank you so much, take care and be well.