05 December 21
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This case is just about whether Roe should be overturned, and so it was very, very different.”
Dahlia Lithwick: I want to start by asking: you had only just argued June Medical. Suddenly you’re back in the Court and you’re arguing another abortion case. We used to get one every 10 years, I guess now we get one every year. Can you just give me a sense of what was different, what was the same, being in that chamber?
Julie Rikelman: I had the last live argument that the Supreme Court did March 4th, before COVID hit. So I left the Supreme Court and a week later the world shut down. So there were obviously a few things that were different. June Medical was a case about a regulation that would’ve made a tremendous difference in Louisiana by cutting off access to abortion, but it was about abortion regulation, a question the court had just considered a few years ago. It was very focused on the facts and convincing the court that this case from Louisiana was no different than the case from Texas that had decided four years ago about an identical law. So it was in some ways a relatively straightforward case.
This case is just about whether Roe should be overturned, and so it was very, very different. The stakes were higher, but it was just much more about first principles and whether people think that women should have liberty and equality under the Constitution. And then of course the Court itself was different, so there were different justices on the bench.
One of the things that I found really striking, both in your presentation and that of the Solicitor General, is how desperately you were both trying to center women. But it got dragged into these orthogonal conversations about the legitimacy of the court, or I don’t know, at some point adoption. And I wondered—what did it feel like? I thought it was so deeply weird that you were both women trying to talk about women, and time and again the response was like, “But enough about women, let’s talk about the legitimacy of the court
That was absolutely one of my biggest goals—to make sure that the voices of women were heard at the court and were present there in the courtroom, because the courtroom was largely empty. And so that’s what we really needed to do was to make sure that the impact of taking this right away, something the court hast never done, taken away a constitutional right after 50 years, the impact would be felt. And I tried both legally, but also I’m a mom, so I also know what I am talking about. And so I tried to emphasize every time that a justice would say, “Well, if we change the law this way, is it really going to harm women?” To say, “Absolutely, it will harm women.” Pregnancy has unique physical demands and risks for women, even just being pregnant changes your life, having a child changes your life tremendously. All of these things change everything about your life, your family, your ability to have a job, to just live in this world. And so I tried every way I could to bring that into the courtroom.
It’s so interesting, because it reminded me of Justice Ginsburg when she would describe her early advocacy when she was trying so hard to make a woman’s life visible to a court, except at the time she was talking to courts full of men, right? And she was just trying to say, “Stop for a minute, walk in my shoes, see what a woman’s life was.” And I really felt like that was bizarrely, in 2021, the thing you were trying to do again.
It was very strange. And I think one of the things that was obviously very concerning is that Mississippi had suggested in its brief that women don’t need this right anymore, it’s OK to force them to be pregnant and give birth and have a child against their will because things are better now than they were 50 years ago. And so that was another major point that I wanted to communicate; maybe some things have changed, but how could it be any less important for women to be able to make this decision? How could it be any less critical that states don’t force somebody to be pregnant and to have a child? Nothing about that has changed. And that was another major goal I had in the argument.
One of the moments that really struck me was you trying to bring the economists’ brief and the data that showed that… I mean, beyond just the mortality and health risks, that simple equality requires women to be able to control their bodies. You’re trying to make the point about women and inequality and the data that’s amassed, and Chief Justice John Roberts jumps in, and says “Well, putting that data aside…”
And I guess I just want to ask you, how strange it is that you’re trying to make a science-based, fact-based argument, a medical argument, and time and time again it’s being brushed off as though those are trivial interests.
Yes, it was fascinating because one of the major criticisms that people have had about Casey was that when it had that critical sentence that “making this decision would be critical to women’s ability to participate in the social and economic life of the nation”, and that was one of the reasons why the Court retained the right, even though some of the justices in Casey said, “We may have decided it differently if it were up to us for the first time, but we recognize how important it’s been to women’s equality.” People criticize that as not having sufficient support, not enough data, but you know what? We proved that this time.
We have a brief by the leading economists in this country, Nobel Prize winners saying, guess what? The data over the past 50 years is overwhelming. We can now do studies using something called causal inference that shows that it is actually abortion, not other changes, that have caused these gains in women’s ability to finish high school, college, to have gains in their earnings compared to men, to get professional degrees, to pursue careers. All of this actually we have data showing abortion legalization has made it possible. And that’s what I was referring to. So now we even have the data, but it still seems like perhaps that’s not going to be enough for everyone.
I’m going to ask you the question that I’m sure you’ve been asked 100 times, which is, were you expecting this interpolation from the newest justice, Justice Amy Coney Barrett, with the very, very strange analysis around the safe haven laws and the idea that because adoption is so much easier now there’s no parenting burden on women. Was that out of left field to you?
It wasn’t, it was an argument that Mississippi had made in its brief that these safe haven laws which exist now are a critical difference, and one of the reasons why it would be okay to overturn 50 years of precedent. And of course the first response is it’s always been possible for women to place a child up for adoption. There’s nothing new there. But the second response is, that doesn’t take away all the burdens of forcing somebody to be pregnant and give birth, especially giving the alarming maternal mortality rate in this country and in Mississippi.
But the third point, which the Solicitor General made, and I wasn’t quite able to get to because I think somebody else moved me along, is that forcing somebody to make the decision whether or not to give a child up for adoption is not a small thing. Even if the pregnancy and the delivery goes relatively uneventfully and you don’t have lifelong physical consequences from being pregnant, which some people do absolutely. You can’t force a woman to decide whether or not to give a child up for adoption. So it wasn’t an unexpected question, but again, it’s concerning that it just doesn’t really reflect the reality of what it would mean to take this right away from women.
You started by saying you’re a mother. The absence of women in this argument in some ways felt like it was being answered by the women massed outside, by the protestors outside. And I thought that one of the things that’s really different, Julie, is that women were listening in their cars. They were listening, everyone I knew was listening. I got to say, my husband has never listened to an oral argument in his life and he was riveted.
I wonder if we’re in this funny new age where the Court, having seemingly withdrawn in the time of COVID, is actually really available to people. And I wonder if that played any part… I know in that moment, again, you’re just thinking about your argument, but if knowing that there were women standing outside, that they were broadcasting the audio, that everyone in the country and I would say beyond the country was listening to you, somehow counterbalanced the fact that you’re trying to make women visible to a court that didn’t seem to care?
Yeah, that’s a really interesting question. I mean, I really do try to think of myself, Dahlia, as just a very serious by the books lawyer. So I was really trying in the courtroom to do what I needed to do to focus on the law and the facts and the precedent and tell the court what was accurate. That was my main focus. But afterwards, when I heard about all the people who were listening in various spaces; I will tell you my favorite story, which is that my daughter’s class was listening to the oral argument while she was at school. So she sat in her classroom and listened to it with her teacher.
How old is she?
She’s 13. They were playing it in her classroom. And I had no idea that that was going to happen. I don’t think she knew. That was one that was especially personally meaningful to me.
I have to ask the obligatory follow up. How does she think you did? Was she proud of you?
Yes. She was very proud.
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