Why History Matters: Reproductive Rights and Justice

In this week’s episode of then & now, we present a recording of a recent event hosted by the UCLA History Department, "Why History Matters: Reproductive Rights and Justice." This event brought together experts to explore the far-reaching effects of the Dobbs v. Jackson Women’s Health Organization decision in June 2022. Hosted by Kevin Terraciano, the conversation delves into the historical misuse of legal doctrines to limit reproductive freedoms and calls for a comprehensive reproductive justice framework that extends beyond abortion to include the right to have or not have children and to raise children in safe environments. Professor Cary Franklin critiques the Supreme Court's "history and tradition" test in Dobbs, arguing it distorts historical perspectives on liberty and equality, while Dean Alexandra Minna Stern discusses the lasting impacts of eugenic sterilization on marginalized groups, emphasizing how patterns of reproductive oppression persist today. Professor Elizabeth O’Brien examines Mexico’s recent Supreme Court rulings decriminalizing abortion and highlights grassroots activism's role in shaping a broader framework for reproductive rights in Latin America. In the U.S., maternal mortality and preventable deaths have risen sharply since the Dobbs decision, underscoring the panel’s call for historical research to inform advocacy as surveillance and criminalization of reproductive health grow. Through these comparative perspectives, the discussion powerfully illustrates how understanding historical contexts can guide efforts to protect and expand reproductive rights in the U.S.

Kevin Terraciano is a Professor and the Department Chair of History at UCLA. He specializes in Latin American history, especially Mexico and the Indigenous cultures and languages of central and southern Mexico. Among many books and translations, he is the author of The Mixtecs of Colonial Oaxaca: Ñudzahui History, Sixteenth through Eighteenth Centuries, a comprehensive study of Mixtec society and their adaptation to colonial rule.

Cary Franklin is the McDonald/Wright Chair of Law at UCLA and serves as the faculty director of the Williams Institute at UCLA as well as the Center on Reproductive Health, Law, and Policy. Her work has appeared in numerous publications including the Harvard Law Review, the Michigan Law Review, the NYU Law Review, the Supreme Court Review, the Virginia Law Review, and the Yale Law Journal.

Alexandra Minna Stern is a professor of English and history and the Dean of UCLA’s Division of Humanities. She co-directs the Sterilization and Social Justice Lab, which studies eugenic sterilization practices in the U.S. and their impact on marginalized groups. She is the author of the award-winning Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America, and the author of Telling Genes: The Story of Genetic Counseling in America, which was named a Choice 2013 Outstanding Academic Title in Health Sciences.

Elizabeth O’Brien is an Assistant Professor in the UCLA Meyer and Renee Luskin Department of History, specializing in the history of reproductive health in Mexico. Professor O’Brien is also a member of the cross-field group in the History of Gender and Sexuality. She is the author of the award-winning book Surgery and Salvation: The Roots of Reproductive Injustice in Mexico, 1770-1940.

Transcript

Kevin Terraciano 0:00

Good evening, everyone. I am Kevin Terraciano, Chair of the UCLA Meyer, and meeting the Lesscape Department of History. And I welcome you to um our White History Matters program, which is sponsored by the History Department. We've had more than twenty of these programs since 2011, since David Myers, when he was chair of created this program. And we um emphasize the importance of knowing the past in order to understand the present and the idea that history can help us make informed choices in the future. We all feel that history does matter. Past topics, we've had some more than twenty. Some of them are really relevant to today's discussion, such as women's rights and human rights. Um, one was on trying to make sense of the 2016 election. We have three experts on the end to address this topic. First, Cary Franklin, McDonald Wright Chair, and Professor of Law, Faculty Director of the UCLA Center of Reproductive Health, Lawrence Policy, and Faculty Director of the Lidls Institute. Elizabeth O'Brien, assistant professor of the UCLA Lawyer and Green Mexican Department of History. Alexandra Minna Stern , Professor of the UCLA Department and Director of the Cerization and Social Justice Lab.

Cary Franklin 2:38

So in 2022, the court held in the there was no constitutionally protected right to abortion. Historically, here's how the law worked. The 14th Amendment protects a liberty and it protects a quality, but it doesn't say what those concepts mean. So the constitution protects the right to liberty and the right to equality. And over time the court translates that into workable law on the ground. So how the basis on that is to say we're guided by historical principles. We see, for instance, that there has been a right to marry protected throughout history, but we also have a blocking understanding. There's an evolving understanding of the concepts of liberty and equality divided by historical principles. This was the uh way the court reasoned in Brown's work of education. This is the way the court reasoned it was that in 2022, the Cork and Dobbs introduced a new test. And what the court said is actually we've been doing it wrong. The correct way to interpret the constitution is by looking to history and tradition. So now we have a history and tradition test. And what this test says is you have to define the right at a very high level of specificity. You have to ask, was there a right to get an abortion? And then you have to look whether that was right was deeply rooted in history and tradition hundreds of years ago, and particularly in 1868, when they enacted the 14th Amendment protecting liberty and equality, did they view abortion as a deeply rooted right in that period? So that is the test in Dobbs. And Justice Alito, writing for the majority, says, no, it's ridiculous to say that there was a deeply rooted right to abortion in that period. Um, and here's what he does historically. He says, uh increasingly in the second half of the 19th century, so right around when the 14th Amendment is enacted, uh, new bans on abortion are coming in. These abortion bans, some of them last all the way through Roe. And if you go back really all the way to the days, the days when they were burning women at the stake as witches, you'll see that we've banned abortion and barred abortion all throughout history. So to claim that there was some deeply rooted right to abortion throughout American history is ridiculous. This is an easy case. No right to abortion, Roe is overturned. Okay, so I'm just going to go through a couple of problems that every major historical organization in the United States has come out and said that history is incorrect. Uh almost all historians concur with that view that this history is problematic. Just talk for one minute about why. Okay, so actually at common law, it there were it was viewed that the state was not allowed to interfere with people's pregnancies prior to quickening. And quickening was about 16 to 20 weeks. That's the point at which you feel fetal movement. And at that point, there is some tradition of laws limiting, restricting access to abortion procedures. But before that, at common law, there was not. And throughout history, there were not viewed as the state's prerogative to restrict people's choices and rights and activities prior to quickening. That began to change right around the time of the 14th Amendment. There was a campaign to pass more different new abortion restrictions. The leader of that campaign was named Horatio Storer. He was concerned that women were having sex without punishment, pregnancy. He was concerned about the morals of Americans, women, that they were becoming too loose, and he wanted to stop that behavior. He was also concerned, because most people in that era who got abortions were white Protestant women, that Catholics who were not getting abortions at the same rates would overrun America. And that he viewed that is a really uh frightening prospect, right? So to preserve the racial composition of the country, to make sure women lived up to their marital and maternal duties, he launched a campaign to get more restrictions on abortion. And this succeeded. He got some allies in legislatures and states started to press bans. I just want to also note that this is a period in which women couldn't vote. Women did not get the vote until 1920. So all of these laws were passed with it at a time when most of the population is disenfranchised and didn't get any say in the passage of these restrictions. So it is problematic constitutionally to rely on that history, which raises a lot of equality concerns under the Constitution today. It's problematic because it's bad history and doesn't accurately report what the customs and traditions were in the past. And then there are bigger questions about whether we really should be looking back to the 18th and 19th century for what the meaning of the Constitution is. That's a whole nother question. But I guess I just want to close uh by saying two ramifications today that we're dealing with as a result of this change in legal doctrine. The first is the new history and tradition test doesn't just affect abortion, it affects all of the kinds of rights that were viewed as evolving rights over time. Contraception is a big one. We will see increasing fights over contraception. Same-sex marriage, right? Ask yourself, in 1868, did Americans view it as a deeply rooted right for two people of the same sex to get married? They didn't. Even if you don't know that much history, they didn't, right? Uh and same-sex intimacy, right? We decriminalized same-sex intimacy about 20 years ago. Was that viewed as a same sex? We're going to have now all of these questions about not just abortion, but a whole bunch of rights that were quote arguably not deeply rooted in either 1791 or 1868, depending on when the constitutional provision that's uh relevant was enacted. Um and the second thing I want to say is there has been a groundswell of opposition in this country to what the court did. Americans are not going along with this. Um this is wildly unpopular. The vast majority of Americans believe that people should have a right to abortion, and we're seeing that play out electorally. One thing I like to remind people of what the Supreme Court held is that the Constitution doesn't protect this right. That doesn't mean that we can't protect this right legislatively. Um, four states since 2022, including California, have amended their constitutions to protect uh reproductive rights. There are 10 ballot measures currently, uh, this election cycle on state ballots, uh, and people are voting on them. The outcome of reproductive, the state of reproductive rights in this country, we'll say more about this as we go on, will hinge very, very dramatically on the results of this election. So we'll talk more about that, but I want to turn it over to Alex.

Alexandra Stern 9:57

Great, thank you so much. Um I want to actually just build on much of what you've uh laid out for us by bringing in the concept of reproductive justice and really thinking about what that concept is and how it underscores the right for a person to have a child, to not have a child, and to raise that child in a healthy environment. Those are the three pillars of reproductive justice. And all of those pillars, well, they've been stressed and strained for many years in the United States. We've obviously never achieved them, but they are under pretty much direct attack in a range of different ways across the country in a patchwork pattern that we do see across the states. There's, you know, as we know, there are differential situations from state to state. I just want to share that I'm drawing a lot of what I'm going to share with you about the history of reproductive injustice from the work that I do at the sterilization and social justice lab. This is a lab that I founded initially at the University of Michigan, and I moved with uh to UCLA when I came here two years ago. It lives very happily, thank you very much, in the Institute for Society and Genetics, which has been a great partner in this work. So it has found a home there. And what we do in the lab is we have gathered data from uh five states uh of the 32 states that um put eugenic sterilization laws on the books between 1907 and 1937. Those five states have more than 35,000 records, so they have more than half of the 60,000. They cover more than half of the 60,000 sterilizations that occurred under state laws, which basically targeted certain individuals for sterilization based on presumed unfitness. Those were categories that were racialized, they were connected to poor people, people with disabilities, women of color, marginalized people, and immigrants. And at the lab, we use qualitative and quantitative methods. So we do narrative, we do numbers, we do data crunching, we do historical context, and there we have learned a great deal about these patterns over the course of the 20th century, most notably in California. And I could talk for night and day, you know, you just poke me, and I will start talking about eugenics in California and sterilization because I've studied so extensively and we've learned so much. You know, our lab has been also not just a research hub. We have um been involved in working with advocacy groups to promote reproductive justice and to think about history in its connection to reproductive justice work. Thus, when the Dobbs decision came down in the summer of 2022, we issued a statement. And the statement was um really, you know, not surprisingly, um, you know, urging us to consider that this decision would usher in a new era of reproductive oppression in the United States. And an era of reproductive oppression that was not just tied to the denial of abortion rights, but that was denied uh connected to the three pillars of reproductive justice, the right actually to have a child as well. Um and our deep concern for this stemmed from understanding reproductive health choices and politics through this reproductive justice framework. Um, and anyway, I won't read you the whole statement, which I copied and captured in case I wanted to share it, but let me just give you a little bit more background on eugenic sterilization in the United States and how this is connected. So, as I mentioned, in 1907 states started passing eugenic sterilization laws. The first state, interestingly enough, was Indiana. California followed two years later in 1909, and the last state to pass a law was Georgia in 1937. And again, over that course of time, over 60,000 people were forcibly sterilized, primarily in state institutions. These were like mental hospitals or homes for the feeble-minded. For those of you who have grown up in California, you've probably heard about places like Sonoma and Napa, Mendocino, Camarillo. These are the kinds of institutions where people who were deemed um unfit were sterilized. And um we know from many of you are probably familiar, I'm sure you're very familiar, with the 1927 Buck versus Bell decision when the U.S. Supreme Court upheld a state's rights to sterilize in the interest of public welfare, basically saying, you know, this famous line from Oliver Wendell-Holmes Jr., three generations of imbeciles are enough, enough to justify the cutting of the fallopian tubes, the state can intervene for the common good and the protection of the public health. So, you know, we have traced this over time in North Carolina and California and other states. What we see is that this, when I first wrote about this history, you know, I was kind of viewing it. This was when I published my book in the early 2000s. I was very naive, and I kind of thought this history had kind of ebbed and flowed, and that things had really changed by the 1970s. In the 60s and 70s, there was another bout of forced sterilization that involved newly available Medicaid monies through the war on poverty, where there was a lot of residual racism and anti-poverty. And this is, for example, when Fannie Louhema received her famous Mississippi appendectomy. And our lab is currently pushing our research up into the 60s and 70s. We found a new data source in the National Archives, and we have found over 200,000 poor women in county hospitals and facilities across the United States who were sterilized with federal dollars during that time. Just note some of those women did want to be sterilized, and that was something that makes this kind of a nuanced discussion. In any case, when, you know, but looking at it, what you see by the 1980s are some shifts where sterilization uh laws began to be checked and safeguards began to be put in place because of class action lawsuits, because of congressional hearings, because of cases you may have heard of like the Ralph sisters. But what happens though is, and we also have a new era by then of you know Roe v. Wade, so 1973, one thinks this is an era where there's more reproductive rights and autonomy. However, it's a check, very, very checkered history. And so some of you may be surprised to know that between 2006 and 2010, over 250 women in California women's prisons, prisons were forcibly sterilized. Um, this was discovered by a um a women's prison advocacy group that was always sending out questionnaires trying to get information, and they started getting information about unwanted hysterectomies, unwanted ablations, a range of different procedures. This then triggered more kind of news investigation, ultimately an audit by the state. And my lab contributed to the passage of a compensation bill for women who were forcibly sterilized in the prisons, and also the individuals, including many men who were sterilized in the state institutions in the 20th century that I mentioned before. The reason I tell you all this is that, you know, this country and even the state of California has a great propensity to fall into pockets and eras of reproductive oppression. And I've thought a lot about in my work what are the ingredients that need to be in place for this type of oppression to happen. Well, typically there are vulnerable populations who are either hypervisible or invisible. They are often corralled up or targeted, classified, sorted in certain ways, end up in certain facilities, and in places that have very little oversight or lack or there's a lack of regulatory control. So it is not then that surprising that in 2019 cases began to be reported of coerced hysterectomies in an ICE facility during the tail end of the Trump administration. And so I'll talk more about some of the connections between anti-immigration discourse and kind of reproductive oppression. But I just really want to underscore, as Cary was saying, that it's definitely important to talk about abortion rights. Abortion rights are interlinked with other types of reproductive and sexual rights for that matter, which include contraception, the right to have a child, you know, not to be sterilized against one's will or be kind of coerced into using long-active, long-acting reproductive control like LARC. Some of you may have heard of that. So it is a kind of wider panorama, and I think it's very important to be aware of that because sometimes the most vulnerable are on kind of the other side of the reproductive justice equation. So with that, I'll pass it to Elizabeth.

Elizabeth O'Brien 19:17

Thank you so much. Thank you, Kevin Terraciano, Cary Franklin, and Dean Alexandra Stern. I'm honored to be in conversation with you all about this important topic. Like many of us, and many of us here, I'm deeply concerned with legal and social efforts to force people to carry pregnancies or to forcibly remove people's ability to carry those pregnancies, including pregnancies that are unwanted and are inhumane or kill people. And I'm especially concerned with how these attacks on reproductive people's health, dignity, and right to bodily autonomy dog deals with other forms of violence in our world, especially having to do with racism and misogyny. When the Supreme Court ruled on Dobbs versus Jackson, we knew that states with trigger laws would see increased increventable death and suffering. And indeed, we have chemistry and that borne out in the past couple of years, in addition to witnessing inspiring struggles to codify increased healthcare protection. So, my perspective then I'll share with you is more of a comparative perspective. I'll discuss some details of two Supreme Court decisions in Mexico, which came down in 2021 and 2023 that had expanded access to abortion. And I want to focus in particular on the role of grassroots activism in Mexico, as well as a transnationally inspired reproductive justice vision that led to securing these wins. The most important thing to know about reproductive rights and reproductive justice movements in Latin America is that they have been strongly influenced by social movements that sought and seek affirmability, restorative justice, and reconciliation from regimes that systematically targeted vulnerable groups by inflicting terror and repression onto them. The kind of terror and repression, I think not coincidentally, that former President Trump has been saying actually is insupportive in recent weeks and for longer than that. Inspired by those struggles, reproductive justice movements in Latin America have argued that the criminalization of abortion constitutes an act of violence against childbearing and potentially childbearing groups as a whole. So that it's not just a matter of individual rights, but that a lack of access to dignified health care is an act of violence against entire groups of people. And that any less than a holistic protection of access to contraception, to health care, to pay family leave, to child care, and to adequate wages and nutrition is a form of space on surveillance. This came out in the language in the Supreme Court decision on abortion and the decriminalization of abortion in 2023 in Mexico, in which the judges specifically used phrases and language that I'll discuss, including that of reproductive freedom, and they spelled out. The fact that reproductive freedom requires infrastructure in infrastructure of access to that freedom. Otherwise, it's doesn't matter. It's just words and not infrastructural. And then we have time, we want to talk a bit as well about pre-modern ideas regarding pregnancy and pregnancy loss and what they can tell us about the uses and misuses of history that Carrie Franklin spells out so um beautifully in regard to his own decision, right? I think it's important to challenge the notion that the Catholic Church has some kind of immutable, preordained, unchanging, unshiftable belief in the importance of protecting unborn life and uniscated pregnancy. And so I mentioned this because sometimes a comparative approach can really show not only how history is being misused, but also how these comparisons when you know kind of dug into not only tell us something extra about United States history and the assumption that um wrong assumptions that people were making in transmit versus reproduction against each other in the 19th century. So ideas about Catholic positions on um onborn life are uh oversimplified. Um even when pre-modern theologians wanted to argue that the products of early pregnancies were animated or in sold, Catholic doctrine prevented them from claiming that animation occurred at or near conception until the 19th century, because for one thing, this claim contradicted Pinus' writings. So the most influential jurists of the 16th and 17th centuries, jurors and theologians, did not equate an animate fetus with a born child, nor did they equate abortion with homicide. For civil jurists, and very, very importantly for the general population in the pre-modern era, viability, the stage at which a penis was thought capable of living outside of a woman's body, mattered much, much, much more than assumment or animation. Um, and Terry already mentioned this. So before the seventh month of gestation, a penis was not legally considered a human being because it could not live in the world as a human being, and it was not treated as such in Catholic doctrine, um, theology, law, or practice. Um, Catholic theologians did not even seriously consider making the argument. The products of conception were animated until at least the 1740s, and they did not insist on this argument until 1869, when Pius IX removed the distinction between anime and non-animated. So, as many historians have insisted, the contemporary notion of fatal personhood is a very, very, very recent invention, right? It's post-Rome. And the part of that we see, you know, in Rexic history, for example, the Catholic countries did not have the Comstock Act, um, did not have the same prohibition on contraception, um, and did not have the same kind of um movement that processed storyline, in which a male medical profession would became united against abortion. So these things were very particular ways that Dane Stern has mentioned to the United States and as she explained, have a lot to do with the racial politics of the history of this country.

Kevin Terraciano 24:58

Thank you so much, Elizabeth. Uh, let's talk about surveillance, criminalization, punishment, and the shifting landscape of abortion care. About two-thirds of abortions in the US in 2023 were done with Mifepristone or mutt or misapprostol, the two-pill accommodation found in anti-preg and similar products, which are generally extremely safe. Therefore, medication abortion is disrupting abortion bans. At the same time, modern surveillance technologies enable law enforcement investigations of abortion crimes, and some states have intensified surveillance of people seeking to terminate pregnancies in order to criminalize their actions. Examples include SB8 in Texas, which authorizes private citizens to take civil action against women who end their pregnancies in other states, seemingly taking its cue from Texas and states like Florida and Georgia. Project 2025 calls for every abortion, miscarriage, stillbirth, and incidental pregnancy loss from medical treatments like chemo to be reported to the federal government. The plan even calls for increasing surveillance for women by rolling back privacy protections. What does history tell us about how to understand these worrying trends of heightened surveillance, investigations of pregnancy outcomes, and the desire to criminalize reproductive health decisions? Beginning with you, Carrie.

Cary Franklin 26:42

Although stay tuned, we all may become very well acquainted with it. Um because it has to do with this question of um surveillance and control. So as you may be aware, I think it was alluded to earlier that there's been an enormous shift in the technologies of abortion over the recent decade or two. Um, two-thirds of abortion in America, almost two-thirds, is now done by medication abortion. That is a two-pill regime that people can take in their own homes. In some places in northern Europe, it's it's like 90% of abortion is now medication abortion. This is a huge change. The number of surgical abortions has gone way down, um, particularly in heavily industrialized countries, and uh medication abortion has become very prominent. Um so I you may have seen in the newspaper that since Dobbs, the number of abortions has gone up, right? Since the m recriminalization and all the surveillance and all of the law enforcement, uh not only has that not reduced the number of abortions, the number of abortions has gone up, and that's in large part because medication abortion can now be sent through the mails. And it is a lot easier to obtain it if you don't need to get to a clinic and you don't need to go through all the that rigor moral that makes it very difficult. Um so if you are an anti-abortion advocate, you are gonna be quite concerned about medication abortion. And here is a strategy that anti-abortion forces have recently hit upon. Uh and it well well, we'll see it, we'll see uh the fate of this uh new campaign, but let me just describe it. So anti-abortion advocates discovered on the books an 1873 law called the Comstock Act. Anthony Comstock uh was in charge of the U.S. males. He was an anti-vice crusader, uh, and his campaign was against illicit sex. He was absolutely obsessed with, especially women, how they were dressing, what they were doing, how they were behaving, the whole nine yards, and he was spent his life cr crusading against this. One of his um most powerful legacies is this 1873 law called the Comstock Act that bars the use of the males to send obscenity. Right? This was an anti-obscenity law that barred sending pornography, dirty pictures, information about contraception, uh, contraception itself, and it says anything used to procure an abortion. Okay, that is the text of the Comstack Law. It's an anti-obscenity law designed to stop women from having sex without consequences, seeing dirty pictures, getting any information about contraception or how bodies work, right? That's Anthony Comstock, that's that law. Um That law was not understood to apply to health care. Anthony Comstock himself says this does not apply to doctors dispensing medications and procedures to patients. This is bad, illicit people who have any legal purpose in mind, who are sending this filth through the mail. That's Anthony, that's the understanding of this anti-obscenity law in the 1870s and sense. Now, there was prosecution under this law for obscenity. Margaret Sanger sent around information about birth control, and she had to flee to Europe because Comstock and his forces are pursuing her. They arrest her husband, because he's also involved with sending contraceptive information, and they you go after uh Ulysses, they go after modernist literature, and this gets into the courts in the 20s and 30s, and the courts say it's unenforceable, right? They interpret it in such a way that it becomes, it falls into the legal world, we say destitute. It falls into destitute, it's not enforced anymore. The courts gave it an interpretation that means it's unenforceable. So it has lain for 100 years. But anti-abortion forces recently discovered it and are in trying to interpret it as an abortion ban. They say, you know, we didn't even need to, no, we don't even need to pass any laws. What we didn't realize, we've banned abortion in this country for over 150 years. Because you are not allowed, they say, to send anything that could be used to produce an abortion. That's not only abortion pills, that's forceps, that's sterile gauze path, that's any equipment, any medical equipment travels in the mail. So they say abortion is already illegal, effectively illegal everywhere in the United States, and it has been for 150 years. Um at a recent oral argument in a case involving Miphopristone that the Supreme Court kind of punted on, we'll see it come back uh probably next year. Um, Justice Alito and Justice Thomas expressed v of excitement and agreement with this reading of the Comstock Act. Um, not only that, it is part of Project 2025. Project 2025 explicitly states that we will interpret the Trump administration will interpret the Comstock Act to ban the use of the mails to send anything that might be used for abortion, that includes abortion pills, which by the way are two-thirds of abortions in this country right now. Um I'll end by saying I have been extremely frustrated. I get a lot of journalists and a lot of fact-checkers calling me. They're saying President Trump is now saying he would veto an abortion ban. So he's he's so what's the big deal? Everyone's in agreement that abortion is going to be legal in this country. I am trying desperately to get across the point that he can say that, because one, Congress is very unlikely to pass an abortion ban that's wildly unpopular and it's very unlikely to happen. But two, he can go ahead and ban a new law if Congress were to pass an abortion ban, because he's already viewing the Comstock Act as an effective ban on abortion. So that's why he can say, sure, I uh I oppose, I'll veto a because his administration has already embraced the idea that the Comstock Act Congress doesn't need to act. We already have an abortion ban in this country. It is called the Comstock Act, and we plan to revive it. So this should be a bigger story than it is, because I it is, I would I was just thinking last night how what would it look like if there is a Trump administration that interprets the Comstock ban as a ban on abortion and enforces that against the sending of pills or anything else in the mail that could be used to produce abortion. I find it hard to fathom what that world will look like, but it is a whole lot more frightening than the pretty frightening reality that we are currently living in.

Alexandra Stern 33:53

Well, um yeah, that's I have to take that in. Yeah, and I want to say a few things about Project 2025, but you know, we're currently living in an era where there's like biometric surveillance, there's app surveillance, there's, you know, once some it one is in the criminal legal system, there's surveillance. So there's a whole range of different surveillance and and medical surveillance and so on. And we know cases in which women, pregnant women, women seeking abortions or not even seeking abortions, but you know, having, you know, inadvertently used drugs in the context where they're pregnant being criminalized, even being imprisoned, and some even, you know, suffering harm andor death. So that there are excellent scholars who've written on that. I want to take us back to the kind of mid-20th century to think about some of the ways in which surveillance was working during the eugenics era. And um, one of the ways it was definitely working was through uh the school system. So, you know, if you were just looking at Los Angeles, who what you who was being targeted for sterilization and for you know reproductive irresponsibility? Well, it was for the most part overwhelmingly young, poor women, Latina girls. So our research found that Latinas were have were sterilized in the eugenics era fifteen at rates 59% higher than non-Latinas. So you can look at this as a concerted attempt to forestall the future. Now, luckily California has had its revenge, you know, and we're a primarily Latinx state and all of that. But nonetheless, you know, that was, and how was that done? It was done through the school system, it was done through parole officers, it was done through the court system, and all of these elements which we know are part of kind of, let's say, the school to institutional pipeline, the school-to-prison pipeline, and so on. And there were other kinds of um tools that were used, such as IQ tests. So, you know, if a girl wasn't doing well in school, she would be pulled in by a juvenile parole officer, given an IQ test. If she scored lower than 80, she would be deemed feeble-minded, maybe sent to the Ventura School for Girls. We can just talk about Los Angeles. I mean, one of the most famous cases is a young girl named Andrea Garcia who uh grew up in um Boyle Heights and was going to high school there, and she was not attending school all of the time because she was one of nine children, and her mother was a widow. They were all trying to work. She had to go from kind of house to house and sometimes lived with her aunt. And lo and behold, in the sterilization record, what you see is like who turned her in. Well, it was the attendance officer at the school, citing her for, you know, basically tardiness and truancy and so on and so forth. Then she ends up in the Pacific colony, which was based in uh Pomona, and uh eventually her mother fights the sterilization, and that's a whole other long story. So I just want to say there are kind of old-fashioned types of surveillance which are lay the groundwork for the kind of surveillance we seem see today. And also, it is not atypical for young people and youth to be uh surveilled and to be tracked. Another example I'd like to give is you know, really thinking about scary things and the possibility of, you know, kind of rounding people up and putting them into the camps, camps and so on. Um, our another member of uh member of my research team and I have a paper coming out in the Journal of Family History, which looks at about 30 cases of Japanese Americans who were incarcerated at Manzanar and Heart Mountain and other facilities who were sterilized by the state of California. And so they were, you know, double double kind of subjects of the state. They were under the control of the WRA, the war relocation authority, so they were deprived of their rights, and they were became wards of the state of California. And they were shuttled back and forth. I mean, this is very eerie to think of by actual, they were move, how were they moved? Like there was a lot of conversation. Are we going to move them by train? Are we going to move them by car? How are we going to get this person from Manzanar to the Sonoma State facility where they would be subjected to the operation? Now, this was a s a sliver of the, you know, uh the 120,000 people that were um incarcerated in the Japanese in the camps. Nevertheless, I really think it's an important part of the puzzle because it shows the role of certain types of actors, in particular social workers at the time. They played an inordinate role in basically identifying, moving, and facilitating. So I think it's really important to be aware of who the actors might be, you know, in these kinds of cases. And we can think of what happened in the ICE facility as well, and who allowed for that, and who were the physicians who were involved, and so on and so forth. So I guess I think in terms of, you know, we can definitely go to high-tech surveillance right away, but there's from the historical record, there are many other layered examples of surveillance that basically involve, you know, um uh people of certain classes policing other people so that they can control them. And later I want to talk more about demographic anxieties and and racism, another kind of cheery topic.

Elizabeth O'Brien 39:23

So, but I'll yeah, well, um for a bit of a comparative perspective with Mexico, until recently, I think it's you know relevant to know that approximately 97% of women in the entire region of Latin America and the Caribbean, 30-some countries, live with very strict restrictions um on access to determination of pregnancy. And so, you know, feminists in recent decades in Latin America and Caribbean have come up with this concept of forced maternity to describe that condition. And so, in some ways, you know, um we can you know look to this kind of criminalization and surveillance that has been happening in other parts of the world as a potential future for the United States. Um and of course, this had you know health um implications. So if every year in Mexico one-third of pregnancy end an abortion, for example, preventable pregnancy-related complications, including those stemming from illicit and unsafe abortion, um, is the fourth largest cause of death of Mexican women's death annually. And I think it's very, very notable that poor and indigenous women in Mexico are nine times more likely to undergo a safe and potentially unsafe and potentially dangerous abortion procedure. And so basically, what these statistics bring us to is this nexus of race, class, language, location, and access. Because what we've had historically in Mexico I mentioned, there was no Comstock Act, there wasn't as strict of a prevention on the access to contraception, and that persisted, right? So even before the legalization of access to pregnancy germination in Mexico, anybody could go to the pharmacy and they could access the medications um that could be used to germinate pregnancy. But then what would happen? If they didn't have private health insurance and couldn't access a private doctor to, you know, have the appropriate care, if they needed a DMC, if they needed follow-ups, if you know um anything went wrong with that medication abortion, then they would end up in a um public clinic, which you know is vulnerable that everybody was guaranteed access to free um health care throughout all of Mexico, but the women who would end up in public clinics with pregnancy complications were those who could not afford access to private practitioners, right? And so what ended up happening in just the past 25 years in Mexico are over 20,000 criminal investigations, many, many, many of them against war and indigenous language-speaking women in Mexico. Um, many of them claimed that they simply had miscarriages and that they have um you know no um culpability in their unsuccessful um pregnancy termination of a pregnancy that did not lead to a live birth. And um, for some you know, kind of kind of comparison, comparative cases, um, there's a woman named Inelda um in El Salvador, who is one of many dozens of women who was imprisoned um for over a decade because she was accused of attempting to terminate her pregnancy. But one of the really striking things about Inelda's case is that her child was born alive. Um, nobody terminated the pregnancy. And so um, you know, there was there was no need for her incarceration um for these many long years in which her child, you know, didn't have a mother except for a regime of surveillance, punishment, and forced maternity, right? Um and you know, this this kind of history of being able to access pregnancy termination in Mexico if you had the means to do so without being surveilled and criminalized for it is transnational as well, because we know that before growth, men and women went, for example, to Mexico and other countries. And then I'll just add a couple of really quick kind of comparative comments on the pre-modern era, right? Because a lot of the surveillance, you know, um, and punishment and criminalization and you know, oppression and repression that we're talking about is done kind of you know through the infrastructure of a modern state. And so we you know kind of take for granted the idea that there's going to be modern authorities, but it's interesting to look at pre modern history when that did not exist. How was pregnancy loss understood, right? So I'm talking now, um drawing from the work of other scholars, especially John Castopla's. Have been really influential to my thinking on this lately. And first of all, you know, one of the things that we know about pre-modern pregnancy termination is that abortion as a concept had many, many meanings. It could be the result of an accident, an unintended consequence, the result of a therapeutic invention. Pregnancy could be misdiagnosed, it could be genuinely misdiagnosed, it could be incidentally misdiagnosed, or it could be intentionally misdiagnosed. Abortion also has a concept to refer to just the loss of pregnancy, a miscarriage, right? And so this is really a relevant concept to today's time as well, because pregnancy is in so many different ways. It's not possible to just separate abortion from miscarriage. And then, you know, um another notable aspect, right, of the pre-modern era is that abortion was often seen as a man's crime. It was often seen as something that a man was responsible for and that a man would be punished for. So those that were liked and deemed honorable and who had abortions for reasons that did not disturb the moral sensibilities of their community were almost always pardoned, absolved, it was not a problem, right? Um and that's a broad generalization, but it's one that I think you know helps make a kind of important comparison to this era of intense surveillance and criminalization right now.

Kevin Terraciano 47:05

Thank you, Elizabeth. Uh Supreme Court Justice Alito wrote that the goal of preventing abortion does not constitute invidiously discriminatory animus against women in particular. And yet recent data has shown that abortion bans have led to an increase in preventable maternal mortality rates. Recent analysis claims that the rate of maternal deaths in Texas, for example, increased 56% from 2019 to 2022, compared with just 11% nationwide during the same time period. Two prominent examples of this trend come from Georgia, where Pro Publica characterized two women's deaths as preventable and determined that they were caused by the state's abortion ban. Many predicted these outcomes. In their joint dissent to Dobbs, justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor decried that a state could, quote, force a woman to give birth, prohibiting even the earliest abortions. Some women, especially women of means, will find ways around the state's assertion of power. Others, those without money or childcare, or the ability to take time off from work, will not be so fortunate. Maybe they will try an unsafe method of abortion and come to physical harm, or even die. CDC data also shows that infant mortality rate has spiked in states with abortion bans. A new paper in the Journal of the American Medical Association of Pediatrics found that infant mortality was higher than usual in the U.S. after the Dobbs decision and never dropped to rates that were lower than expected. So my question is: what does history tell us about the ways in which reproductive oppression harms people on the basis of sex, gender, and ability to become pregnant and their children as well? I don't know. Uh maybe Alex, would you like to go over that one?

Alexandra Stern 49:12

Um sure. I mean, basically you've laid out a lot of the foundational framework for understanding how reproductive oppression can work for women and pregnant people. Um and, you know, we have seen what's unfolded just in the past two years since the Dobbs decision. Again, it's unfolded differentially across different states, and we rely on news organizations like ProPublica and Stat News and others to capture these cases and show, you know, how the harms are playing out. Um, the prospect of, you know, we're just like literally countdown a few days away from the election. You know, the prospect of, you know, a return of a Trump presidency or the enactment of uh Project 2025 would obviously take this to the next level. And I do want to just take a minute to really underscore that we should make no mistake that these this reproductive oppression is attached to white supremacy and racism. And I'm going to read you three quotes that Trump said to news media in the past ten days. Okay, so this is just the past ten days. And I'm sorry, you can cover your ears if you've already heard them. For four straight years, Kamala has imported an army of illegal alien gang members and migro criminals from prisons and jails and insane asylums and the worst mental institutions anywhere in the world. So we should be Kamala. Yeah, well, I guess I was giving, you know, I had to at least modify that, but yes, he would say it that way. Um so here we've got the four straight years, and look at the words, the key words that are being invoked, such as illegal, alien, and mental institutions. So this idea, which where does this go back to? It goes back to the early 20th century with the eugenics and also the idea that strict immigration laws need to be enacted, that people need to be deported or stopped at the border. Um, from two weeks ago, many of them murdered far more than one person, and now they're now happily living in the United States. You know, now a murderer, I believe this, it's in their genes. And we got a lot of bad genes in our country right now. So this is another example of kind of Trump relying on this eugenic discourse to you know basically make these stark categorizations of fitness and unfitness, and we know who he's talking about when he's talking about unfitness. And then finally, a very old trope in the playbook of kind of scapegoating of immigrants. People come in, they're very sick, very sick, they're coming into our country, they're very, very sick with highly contagious disease, and they're led into our country to infect our country. And actually, he said this in Aurora, Colorado, which is one of the places that he had, I think it was the one of the places in addition to Springfield that he had identified as a site of, you know, too many Haitian immigrants. So I just really want to underscore that these are demographic anxieties that are that were interwoven to the rise, they've been around for a long time, but if we look kind of with the election of Trump and the rise of the alt-right, and particularly, you know, the kind of crescendo of kind of white nationalistic fervor, this is all part and part of the same package. And you can't understand the desire to control women's bodies or reproductive bodies, as well as controlling the bodies of trans and non-binary people. You you have to connect it to this kind of xenophobia as well. It's part of a package, and we know what the package is, and it's a package that's defined by patriarchy and you know, neo or full fascism. And so, anyway, I guess that's what we're dealing with. God, I'm always so depressing when I talk about things. I'm sorry. Um we do have a question on advocacy and activism, so maybe that will help get us uh in a better space. But I'm just so disturbed when I hear these quotes and the ways they're being bandied about. And they are not just they are off-the-cuff remarks, but they're not. See, any time someone is being sardonic, it's definitely a problem politically. And you know, Trump is a master of that, and he's a real kind of you know, freewheeling talker when he brings in that kind of sardonic point of view.

Speaker 4 53:46

I love hearing responsibility.

Elizabeth O'Brien 53:51

Sure. Okay, so we're gonna do that. That sounds great. Okay, so you know again, um in Mexico's 20 Supreme Court rulings, they uh, you know, um really embodied and took up and embraced a lot of what we've learned from reproductive justice activism in the last decades, right? So on September 7, 2023, this historical decision, Mexico's Supreme Court of Justice established that the that um uh uh decriminalized abortion on the federal level, establishing that criminalization in the federal penal code is a violation of the human rights of women and transgender and non-binary people. And they very specifically included that language in the ruling so that it was clear legally in the Constitution that not only women were harmed by abortion criminalization and uh repression and lack of access, right? And so um, under this ruling, um, no one, including healthcare personnel, can be prosecuted for providing pregnancy termination services. And in addition, they instructed public clinics to always provide these pregnancy care um and health care services when they were needed, right? Because with the last question, you know, with women would show up at um at public clinics, then doctors and nurses and people there would report into the place, right? So what's important about this 2023 Supreme Court ruling is that they said, quote, the criminalization of abortion constitutes an act of violence and discrimination based on gender as it perpetuates the stereotype that women and pregnant individuals can only exercise their sexuality for procreation and reinforces the gender rule that imposes motherhood as a compulsory destiny. Right? Um so this is there, I say better than grow. Not that we're talking, you know, in in terms of better and worse, right? But we also know knew that grow um had some limitations and needed to be built upon instead of overturned, right? Um and so you know, this really um you know transexualized um a fundamental and inclusive concept that had the underlying purpose of recognizing and making visible those who belonging to diverse gender identities, um, different from the traditional concept of a woman, have the capacity to just state. Um and you know, they also included language about, and I'll just you know mention this briefly without reading through all the language, human dignity, reproductive autonomy and free development of the personality, the secularity of the state, legal equality. So this right applies to the elimination of gender stereotypes that are assigned to people based on the sexual organs they were born with, um, and reproductive health and freedom, um, saying that moreover, these rights must not only be recognized on paper, but the infrastructure must also be in place to allow for decision making regarding one's own health. Um, so that's you know all from the 2023 Supreme Court decision, and you know, this has been used basically to challenge state-level laws that still criminalize people's reproductive outcomes. Um, and so just one example, and then I'll stop talking about how it was applied, was that in Kwawila, a local court concluded that when criminal law affects other rights, then it is not the proper way to protect the gestation process. And that from then on, any investigations against women or people with the capacity to gestate for the crime of abortion and against those who had assisted someone in having an abortion were to be closed. Um, the same applied to anyone who had been sentenced or imprisoned for this crime, um, who from that moment on had the right to have the case reviewed in order to be released immediately the next day. Approximately seven people were released from jail where they would be in hell on suspicion of having um terminated their own pregnancies. And so it just gives a taste of you know what Mexican lawmakers have focused on.

Alexandra Stern 57:44

Can I ask Carrie a question, riffing off of that, which is you know, what we see in that is a lot of reproductive justice because it's guided by human rights understandings of kind of international law, human dignity and equality. And in the United States, we're both empowered and kind of have our hands tied by civil rights and 14th Amendment interpretations. And I guess I'd love Carrie to reflect on what we can do now, you know, given, you know, kind of the legal landscape and the options going forward, assuming, you know, the worst-case scenario, but also assuming, like, let's say, a mid-range scenario, which still wouldn't be great.

Cary Franklin 58:24

Um, yeah, so I I don't want this panel to actually be all doom and gloom. Uh I I'm a constitutional lawyer, and my work is actually developing the next generation of constitutional arguments to get us out of where we are at DOB. So I'm very forward-looking. The goal is to build up again and to create these protections, and I think we will. How I don't know how long that will take. Um, but uh but we will. Uh and just I just uh want you to know um you should be proud if you are a California taxpayer. Uh California, a couple of years ago, gave UCLA law school five million dollars to start up the Center on Reproductive Health Law and Policy, of which I'm the faculty director, uh, with the idea that they saw Dobbs coming. They didn't even know it was gonna be called yet, but they saw Dobbs coming down the pike, and they wanted to invest in uh research, a think tank that could come up with the new constitutional arguments. And that is our center, and that is the work that we are doing, uh, and I'm doing this with lawyers around the country. Uh and I just to respond to this uh conversation, we're very interested in the Mexican and Colombian and other uh decisions that have framed partly in terms of human rights, which is a much harder lift in American law. We don't generally incorporate human rights into our constitutional jurisprudence, but um I mentioned the 14th Amendment protects liberty and equality. Roe was based on liberty. It was based on freedom, you could choose, you had autonomy to do what you want with your body, and that is what Dobbs killed. Uh no, I don't think it entirely killed that, but it put a huge damper on that. It's very hard to bring a liberty claim right now because you have to prove that the liberty was deeply rooted in 1868, and that way I talked about that earlier, right? That's very hard to do for all these things. Dobbs, however, didn't was made no holding about equality. It was an equality case. That wasn't the argument in the case. The 14th Amendment also protects your right to equality. And we've had numerous other decisions around the world recently that have framed this in terms of equality. So part of my work over the last several years has been developing constitutional equality arguments that can be used in the reproductive justice context. Um and I I spend an hour doing this in my Con Law One course, so I do not know if I'm going to be able to do it right now in one minute, but I am going to try to just tell you a little bit about what our equality doctrine is and the advantages and the challenges. Okay, so the way our equality doctrine works in the United States in constitutional law, um, if you are going to pass laws that discriminate against women or discriminate on the basis of sex, you the government has to give its real reasons to the court, real reasons why it's doing this thing, has to state its governmental interests, and then it has to show that the means that it's using to achieve those interests are quite tightly tied to the interests that it's trying to achieve. They're not underinclusive, they're not over-inclusive. They're not, they're not stereotyping or discriminating against women more than they need to to achieve the objective or the interest that is valid. Okay. So here's the thing, and this is what I just published a chapter on this. Um, so um in this context, the government says we have two constitutionally recognizable interests. One is we're passing abortion restrictions to protect women's health. Um there are um rapacious abortion providers, and they are hurting women, and we need to protect their health. And also we are protecting potential life or fetal life, uh, we but the health and well-being of fetuses we're trying to protect. Okay. The objective of protecting women's health is a lot easier. It's very uh uh not hard if you're a lawyer to show that a ban abortion bans harm women's health. To open the newspaper any day, you'll see ri big rises in maternal mortality, big rises in harm to people's health. When you close down all these health clinics, Planned Parenthood clinics, I came from Texas most recently. Um that's what provide all the cancer screenings uh in the valley in Texas, right? Huge, huge health deficits and problems when you close down all of these clinics. Um that that is not a uh uh, I think, consistent with a government interest in protecting women's health. What about fetal life? Right, that's the main argument in these cases. What's interesting about that is if you're a state trying to protect fetal health and well-being, what would you do? Right? You'd expand Medicaid because that is an enormous impact. You provide prenatal care, you provide vitamins, you provide housing support, drug intervention pro you provide all the kinds of medical supports and social supports that are proven to improve pregnancy outcomes. So, in some cases, like Medicaid expansion, fairly dramatically. We know that you would take all these steps. The states passing abortion bans are the states that have chosen not to expand Medicaid, that have the least social safety net, that have the most uninsured people, that have the worst rates of maternal mortality. The only thing that they are doing to protect potential life is persecuting doctors, shutting down clinics, and trying to stop abortion. That should be a problem under our equality law, because the means are not closely enough tailored to the stated objective of the state. They're not acting like states that want to protect the health and well-being of their fetuses. They're acting like states that want to control women's reproductive lives, which is not a constitutionally acceptable aim. So there are good constitutional arguments that can be made in courts. We are making them in state courts. There was a very exciting recent Pennsylvania decision that followed along this way of thinking, and there have been other decisions of that ilk. This is not the only constitutional argument we are building, but it's one of them, and I think it's a promising one over time. Um can I just end on a real downer? Okay. Um like like, I mean, one of the reasons I love constitutional law, and it's it's so it's so gripping and fascinating to me. It's never, it's never that easy, it's always complicated, it's always hard, it's always fun, it's always interesting, it's always important. Here's the challenge uh with this argument. Um 50 years ago, this is the thing that takes me 45 minutes to explain. Fifty years ago, the court issued a decision in which it said discrimination against pregnant women isn't necessarily or really has been interpreted, has been read as isn't sex discrimination. Discrimination against pregnant women isn't sex discrimination. If you fire someone because they're pregnant, that's not sex discrimination. Okay. And the reasoning is that only women become pregnant. That's why it's not sex discrimination. Wrap your head around that. Right? The idea is you have to show that men and women are being treated differently or being treated unequally. If only women are getting pregnant, you're not treating pregnant men any worse or any differently, because in the court's view there aren't any. You don't have that comparator group. You know, features, biological features that are just the court views as distinct to one's sex, can't, when you discriminate on those grounds, can't uh count as sex discrimination. No, this is a f ridiculous, frankly, 50 year old precedent that the court had never cited again. After Congress rejected that view as applied to federal law. We have a weird situation in America where, as applied to federal laws, that's not the view. Pregnancy discrimination is sex discrimination under federal law. But under our constitutional law, it's not sex discrimination. It's very conceptually difficult to wrap your head. Be glad you're not a con law one student, it's difficult to wrap your head around that. But the after Congress made that move and said pregnancy discrimination is sex discrimination under federal law, the court court never cited that decision again in a majority opinion until guess when? Dobbs. In dicta, which means not the holding, but in chatter rhetoric, Justice Leto, just talking. He was like, by the way, you didn't make an equal protection argument, but I'm just going to reach out and say how bad I think that argument is because of this decision. It can't be an equality problem because it only affects one sex, and we know that that came. So he has expressed his view about whether that argument can go forward. That's not going to be the view of every state court. I don't think over time that may be the majority view, but there is a hurdle right now at the Supreme Court just to get positive and then let you know the challenges ahead.

Kevin Terraciano 1:07:13

You raised this issue of advocacy and activism. Let's talk about that to end our session. What would you like people to know about the future of these fights? Go for it, Alex.

Alexandra Stern 1:07:32

Well, I can talk about the work that this is an example of how researchers can help inform advocacy. So in our lab, we did a lot of research, showed, you know, kind of the patterns of sterilization abuse in California. In 2017, we published a paper in the American Journal of Public Health making a case for meritorious redress. In other words, there should be some sort of reparations or compensations for people who were harmed by the state through reproductive control. And that then kind of evolved into a working group that I would coalition I was involved in for four plus years with the Disability Rights Education and Defense Fund, California Latinas for Reproductive Justice, California Coalition for Women's Prisoners, and a few other groups. And I learned so much working with these groups about, first of all, how do you how do they uh move ahead with kind of um pursuing legislation? It took four tries to get the compensation bill passed. Um, I think it finally happened uh the the last year, which was 2021, that we tried it because we brought in the claimants from the California prisons who were more recent claimants. There are over 200 and about 200 of them who have been compensated, and they also were willing to tell their stories. So it's also the power of storytelling, and they talked about how they were harmed. I got to know many of them. A documentary was made, The Belly of the Beast, some of you may have seen it, which talks about what happened in California women's prisons. So for me, you know, the optimistic story is that history can help inform advocacy efforts for justice. Um, you need to work in patient collaboration with advocacy and activism groups and follow their lead because they know what they're doing. Often, me as a scholar, I was learning, you know, obviously I was learning from them, but we were providing some of the research that would really help inform the case. And in the end, we were the um, you know, the lab became the contact um uh became the contact entity for the uh California Victims Compensation Board that would contact us and say, we have this has been submitted to us, do you find this in your files and so on and so forth? That's a more complicated story of how victims compensation boards actually work because they are an arm of the kind of the state. But nevertheless, for me, that would be an example of whatever would be the reproductive harm. How can you do the historical research according to those standards of scholarly integrity and then work with groups? You have to build alliances, you have to build trust. This is a slow-going process. I've put a lot of skin in the game to do this, you can't just do it overnight. But it's possible and it can be uh very effective. And in fact, one of the people I worked with just got into UCLA law. She's doing the public interest law, and she's going to be working on these very issues with uh Latinas in California. So there's a great story of you know her and you know how this inspired her to move ahead with her career and do the very kind of you know work that you're talking about. Okay, I hope I hit a kind of more upbeat there.

Elizabeth O'Brien 1:10:59

Well, that's all very inspiring. Um I co-sign all of the you know messages about early foundations and um you know progressive connections and um working in coalition. Um and I just want to emphasize, you know, I guess I don't have too much advantage, but that um in recent years I have spent this masculine feminist green wave because bright green is kind of you know the um symbolism that's used um for um these broad coalitions throughout Latin America um in support of reproductive dignity um to fight pre-drug controls um in you know in terms of forced sterilization or lack of access to health care or lack of access to pregnancy care, including pregnancy termination. So Mexico, Colombia, Argentina, and URLI um have all made really significant strides towards decriminalization, legalization, and protection of access. And um, you know, in Mexico, um first trimester abortion had been decriminalized in Mexico City since 2007, but and then a couple of states followed suit, including Oaxaca, but then um 16 states kind of you know encoded in their constitution the right of fetus to like sense consumption um at the same time that the struggle was happening. And so it was really slow, you know, legally. But what I want to really emphasize was that there was a turning point um, you know, in um around the pandemic, actually, that there was this massive, massive march in uh in March of 2021, in which hundreds of young feminists stormed the country's national palace in Mexico City, attacking the president's residents with bags, blowtorches, and hammers. And their demand, you know, was an end to all gender-based violence. And so this was you know, building on decades and decades and decades of protest against homicide and gender-based based violence very large. Um, so the protest followed a massive demonstration that brought tens of thousands of women to the streets, many of them wearing these green handkerchiefs that were first seen in Argentina, and the Mexican women also did a national strike the following day. And so, you know, when we look back on this enormous grassroots um mobilization of angry young people in the street, we see that just six months later was when the Supreme Court made their first ruling, right? Um, so in September 2021, um abortion um uh you know was ruled on by the Supreme Court as no longer a federal crime. Um so while the criminal law still varied by state, um, they said that criminalizing the 2021 ruling said that criminalizing abortion was unconstitutional, and what that did was set a precedent that led to the next ruling two years later of the decriminalization of you know all um abortion. And so, you know, while the 2021 decision didn't automatically make it legal, it set this but unique precedent. And so then what happened was that there was this grassroots strategy that relied not on lawsuits, um, even though I think you know this can be a really valid strategy, but um that was really um moved forward by these NGOs that had been laying their ground for really for many, many decades, right? And so um there was a center for a national center for reproductive rights that worked in coordination with many, many, many local organizations and healthcare providers. And essentially what they did was they found hundreds and thousands of women actually whose you know access to healthcare or reproductive rights gender equality had been violated in some way, and then they brought this to small local courts and got decisions um from local judges in these rulings known as amparos, and um these were documents you know um containing a judge's decision to settle a dispute. And what happened was that you know these amparos decisions built on each other in a way that really you know validated this more um national argument for Supreme Court, and the um decisions often included language, um reproductive justice language about human rights, including that, you know, of a victim's right to comprehensive reparation, restitution, rehabilitation, compensation, satisfaction to restore you know, the victim's dignity and guarantees of not repetition by offending hardness. And so you hear about you know lots of kinds of offenses that people would complain about, for example, um, you know, um sequestration uh and um lack of denial of access to health care. So um yeah.

Cary Franklin 1:15:33

Um yeah, I guess I'll say um it has been a rough two years uh working on this every day. Um but there but if I if I step back for a minute, there is a lot of good out there, and this is some of it, but I just want to focus on the US context where I'm more uh familiar. Um so I first of all think it is so important to continue to repeat the tr what the polling and the data shows, which is Americans overwhelmingly support a right to abortion. And that is true even in red states, that most people support some right to abortion in those states. The position that has won the day at the Supreme Court right now is a very unpopular position. It is not one that Americans want, believe in. That's not how they interpret, understand the Constitution. That's not what they want our laws to look at. And you have seen that reflected not only in the big marches in Washington and in other cities, but in every time abortion has been on the ballot since Dobbs, the anti-abortion forces have lost every single time. It had a big effect. There's now data showing the 2022 midterms were influenced by, it's kind of like the dog that caught the car with anti-abortion forces. They got Dobbs, but does it necessarily help them? I don't know. They lost a lot of seats. There's going to be a lot of interest in the question if Trump loses, how much abortion played into that loss uh because this has so turned on uh off, so turned off, especially uh women voters um who may come out to the polls in numbers that we don't yet appreciate. Um there are ballot initiatives in ten states right now. I think most of them, the anti-abortion forces, will lose, that there'll be greater protections after this election on the state level. There are so many efforts going on in the states to get state legislation and to bring suits in state courts. It's unbelievable the amount of energy and effort that is yielding good results in the states that if you just pay attention to the Supreme Court, you will not see. There is enormous activism and there and protections that are important that are being won even in places you might not expect. I can't stress enough how much voting and democracy is tied with this, because there are a lot of efforts, a lot of the efforts to stop these initiatives and ballots have to do with suppressing the vote, having to do, have to do with getting things knocked off ballots, challenging procedures, challenging signature training, trying to stop democracy because that's the only way to stop it. You can't, you don't have the votes to stop it because the people support greater protections. So turning to a lot of anti-abortion forces are turning to a lot of anti-democracy measures to try to stop uh reproductive rights and justice initiatives from moving forward. So protecting reproductive rights and justice is a lot about protecting democracy. And I guess one thing I always tell my students who come to law school sort of bright-eyed, and then I inform them about the state of constitutional law in this country. But I just I I I I'm sorry if this is earnest, but I believe it. Like think of it's 1868, the 14th Amendment has been passed, you have a liberty of protection, and you have equality protection. It's a hundred years until Brown versus Board of Education, it's a hundred years of Jim Crow and oppression and struggles that I would say were harder, and you're starting off in a worse place then than you are now, and people did not stop. They did not stop them. They fought and they fought, and we are doing that now, and we will do this, and this will come right, and it's just a matter of putting in the energy and putting in the effort. I don't know whether it will be sooner or later, but it will happen because this is something people support.

Kevin Terraciano 1:19:51

I want to thank these incredibly knowledgeable and articulate experts who have addressed so many compelling issues related to reproductive rights of justice this evening, um, who have exposed the casual, highly selective use and misuse of history by some people, mainly men in power, who are not trained in history, who do not study history, who misrepresent the past to suit their own unpopular designs and conceits. This deeply troubles us. It urges us to action, and that's why history matters. Thank you.