Annie Kuo (AK): Welcome back to Discovery, a 红桃视频 podcast where we interview our distinguished faculty, guests to the law school and experts from around the world. Today we have a special guest one of our alumni, alumnus Elisabeth Smith, who recently visited the law school to speak to our Perspectives 1L series class. She gave an overview of how the U.S. Supreme Court decision in Dobbs v. The Jackson Women's Health Organization has affected the landscape for reproductive justice across the country. Elisabeth Smith is director of state policy and advocacy at the Center for Reproductive Rights in New York, where she was formerly Chief Counsel starting in 2018. She moved to New York from Washington state where she was legislative director for the ACLU. She graduated from the UW School of Law and Davidson College.
Welcome, Elisabeth to the podcast.
Elisabeth Smith (ES): Thank you so much. I'm glad to be here with you.
AK: It's a pleasure to have an alumnus who's doing some major legal work ripped from the headlines. We've got abortion restrictions and other issues of reproductive justice, or injustice, in the news every day. I mean, what a time to be alive. I recently interviewed a graduating 3L student who said the biggest surprise she鈥檚 had in law school is seeing that the law does change, and that it can actually change quickly as it has for her in the past three years.
So, case in point, the Dobbs decision in 2022, in which the U.S. Supreme Court held that the 14th Amendment's guarantee of personal liberty does not include abortion. The court's decision overruled both Roe v. Wade and Planned Parenthood v. Casey. And it returned to individual states the power to regulate any aspect of abortion that's not protected by federal statutory law.
In your presentation to the students, you introduced what the Supreme Court got wrong with the Dobbs decision and that might be a loaded question. But could you summarize that for us?
ES: Absolutely. So, when we think about what Dobbs got wrong, and what the decision has meant for folks across the country, I think we have to start with the fact that in the decision, the majority doesn't think about pregnant people at all. They don't think about the effect of this decision on people with the capacity to become pregnant on their families and their communities. We had almost three generations of people for whom Roe v. Wade was the law and abortion rights were a fundamental right on which, you know, they depended. And then we got this decision, which is the first time that the Supreme Court has ever overruled a fundamental right. And in not thinking about the harm, in not thinking about pregnant people, the court clearly demonstrated that this was an ideological decision, not based on precedent, not based on facts, and without, you know, a full consideration of the harm. And when we look at the decision itself, what you see is cherry-picked historical information that presents a really inaccurate portrait of how abortion has been a part of American life from the beginning, right from the colonies until now.
So, what I said to the students and would like to say to all of your listeners is that a future U.S. Supreme Court would absolutely, easily overturn Dobbs as wrongly decided. The dissent in Dobbs makes it clear how a future court could do that. And it would be easy to distinguish this decision from any other decisions about substantive due process, about privacy, and then about fundamental rights.
AK: It's been called an unprecedented rollback of human rights that's reached crisis levels. And in addressing the students and kind of laying out that there might be a variety of viewpoints in the room, you reminded everyone that, you know, in addressing something that's become such a hot topic 鈥 a very sensitive matter 鈥 that we need to remember fact versus opinion, recognize the great stigma around abortion, and also consider the truth around what is safer, pregnancy or abortion? Can you tell us a little more about that context that you provided in reaching this discussion?
ES: Absolutely. Most people you talk to have an opinion about abortion and about abortion rights, and abortion care. And those opinions are based on lots of different things, right? Everyone's opinion is valid for themselves. But one person's opinion shouldn't determine someone else's access to life-saving essential medical care.
We also in this country have the idea that pregnancy is somehow a neutral state, right? That it's normal and healthy and expected. And we don't grapple with the fact that pregnancy is not a neutral state, right? Pregnancy presents a lot of risks for lots of different people. And every pregnancy is different. So, if you look at data, abortion is actually much safer than continuing a pregnancy to term. And so when we think about abortion rates and federal jurisprudence and state laws, it's also really important to weigh evidence and be really clear about what evidence we're using. So, again, all opinions are valid for individuals. But in this context, we really need to look at facts and data, and not personal opinions.
AK: Education around real facts is really important when it comes to human rights. Since Dobbs, 14 states have criminalized abortion. That is for about 25% of the U.S. population, and six states have had successful ballot initiatives. I think you've been tracking, the center's been tracking that there are five to seven more state ballot initiatives expected this year alone, on top of the presidential election. You wrote an article in 2022 in Ms. Magazine called 鈥淗ow states can and should protect abortion rights and access.鈥 What are the methods that states can use to be both proactive and defensive in their legislative efforts?
ES: Starting with ballot initiatives, every state constitution states whether voters can initiate a state constitutional amendment. Not every state gives voters that power. Washington and states on the west coast have a long and deep history of state constitutional amendments, or statutory initiatives, initiated by the voters. That's not true in every state. So, of the successful state constitutional amendments since Dobbs, abortion has won every time. And by winning, either new protections have been written into state constitution, or restrictive state constitutional amendments have been defeated. One of the best avenues that we have now are those state constitutional amendments initiated by voters.
Outside of that there are legislatures that have majorities in support of abortion rights. And so legislatures in those states have also referred state constitutional amendments to state ballots. And then there are lots of ways that laws, state laws and regulations can support abortion rights and increase access. And again, in those latter two examples, you need legislative majorities that are going to do that work, right? And they are not present in every state.
Soon to be 18 states and the District of Columbia have enacted interstate shield laws, which are essentially laws that protect the 鈥 a legislator used this example, and I really appreciate it, 鈥減rotect the abortion infrastructure or gender affirming care infrastructure of a particular state from threats originating outside of the state. So, Washington is one of those states and along with the others has said that providers and helpers and people who access reproductive health care and/or gender-affirming care inside these shield states are protected, right? That providers will not experience licensure penalties, you know, medical malpractice policies cannot be terminated by issuers or see rate hikes simply because the providers providing this care.
Shield states have also said through these laws that they will not collaborate with states that have banned abortion and/or gender-affirming care. They won't participate in criminal or civil investigations about accessing that care, providing that care or helping someone else access that care. And shield laws are brand new. The first was enacted in the winter right before the Dobbs decision was issued in 2022, but the speed at which, you know, almost 18 states now 鈥 Maine being the 18th state 鈥 have enacted these laws make it clear that there are states in this country where there are legislative majorities and executives and voters who want to do everything to ensure that people can still access this care, that reproductive healthcare and gender-affirming care are critical and essential, and should be available to anyone who needs it.
AK: Yeah. And on the interstate shield laws, what are the concerns around cross-border issues?
ES: There is a resource that my team at the Center for Reproductive Rights keeps up to date. And the resource is called After Roe Fell. And in that resource, we have categorized each state in one of five categories. Washington is an expanded access state, which on the map is a lovely teal color. My home state of Texas, unfortunately, is in the illegal category, meaning that abortion is a criminal act, and that category is represented by kind of a dark brown red.
So, when you look at After Roe Fell, differences in state laws is immediately clear, right? And we now have these border regions where on one side of the border, abortion is legal and accessible. And on the other side of the border, abortion is a criminal act. So, in the Pacific Northwest, obviously, this difference can be seen on the Idaho-Oregon-Washington border. And so that really raises questions. What does it mean that healthcare is legal and accessible on one side, and illegal on the other? Right? What does that mean in a country where we are all meant to have the same rights and privileges across the nation.
So, when we think about threats originating outside of the border of a shield state, for example, what we are thinking about is an Idaho going after a Washington provider or a Washington helper. Or, you know, a prosecutor in Missouri going after a provider or a helper in Illinois, or, you know, someone in the state of Texas trying to get access to the medical records held by a provider in New Mexico. And shield laws are really the way to say, you know, no, we're not going to help you. This health care is essential. It's legal, it's available here. And we are not going to help you criminalize people for providing accessing or helping with that care.
AK: Okay, so Elizabeth, we've talked about what states can do, what can individuals do? And then, as an extension of that, how do we in general keep people safe around this issue as we are, like, in this patchwork of state legislation? But how do we keep people safe in the meantime? And what can individuals do to help the cause of human rights?
ES: The first thing that I want everyone to hear is, don't be discouraged. This has been an incredibly difficult time to be an abortion rights supporter. Right? The last probably five years have brought more and more restrictions, more abortion bans, the fall of Roe. Public comments from, you know, the former president, from members of Congress, from state legislators that are deeply, deeply concerning, and in some instances, you know, contain violent rhetoric.
It has been hard. It has been hard to be an abortion rights supporter. But facts are on our side. The majority of Americans support abortion rights and want abortion to remain legal and accessible. Shield laws passing in this many states this quickly, the wins on state constitutional amendments, we all have to really hold on to these really great examples that show that we're the majority, right? And I say that because the thing that the opponents of abortion rights want is for us to feel like this situation is hopeless, or that it's static, and they we don't have the power to change it. So, again, do not despair, right? Individual people can absolutely have an effect.
Number two, talk to your friends, talk to your family. When I speak in front of groups, I often encourage folks at the end of a presentation to pick three people with whom you've never discussed abortion, and talk to them about it, and tell them what you believe and tell them why. In the state constitutional amendment campaigns, in postmortem, kind of, polling, and different research, what we have found is that people actually care deeply about what their friends and family think about this issue. And so while it might feel like that's not a really powerful thing to do, it absolutely is. Research actually shows that telling your friends and family about your support for abortion rights can change their minds if they disagree, and can help them feel like they have a community if they agree.
Beyond those two pieces, the secret of state legislative advocacy is that every legislator, you know, state senator, state representative, wants to know what their constituents think about an issue. And they keep track of how many people call them, how many people write them.
When I was the legislative director of the ACLU of Washington, I had the good fortune of having an appointment on the books with a particular legislator who I was fairly certain didn't agree with the issue I was lobbying. And as I got to his office, he looked up and said, I just got an email from an individual, actual person and the town where this person lives, I just got an email from this person in this place. And she says she supports the ACLU鈥檚 position. And that's not uncommon, right? So, call your representative and senator at the state level, tell them what you think and why and follow up with their office. It only takes a handful of committed people in any district to get those elected officials to take action, right? To support bills, to introduce legislation.
And even in states like Washington, there's a lot more that could be done in terms of ensuring access. The reimbursement rates for Medicare and Medicaid are not great on reproductive health care. So, maybe take that up as your issue. There are lots of other ideas, but engage with officials at the state level. Contact the attorney general, contact the governor, tell those folks that you support abortion rights and why.
Beyond that, there are lots of entities in this moment in time that could use financial support. There are abortion funds across the country that are helping folks who live in states that have banned abortion either access care where they live, or travel to another state to access care from a provider there. One of the things I wonder about is how long the financial support for abortion will last, right? Immediately after Dobbs, lots of s tates announced, you know, multimillion dollar funding for abortion care. I hope that that continues until there is a new federal right that assures access across the country. But I don't know that that's the case. So, there's also a role for individuals who have the ability to provide financial support.
Beyond that, there are lots of ways that people, whatever they do in their professional life can support abortion rights. I have a good friend who is a screenwriter. She has written abortion storylines into the TV pilot she's written and into the movie that she has written. And those storylines are not about abortion being difficult or devastating. But in those storylines, in those scripts, abortion is treated as, you know, routine and regular medical care that people want to access. Not everyone listening to this podcast is a screenwriter. But I think that's indicative of whatever you do in your professional life, there are ways to talk about abortion, take action on abortion. There are lots of companies that, you know, make donations or that will match donations made by their employees. Talk to your employer about whether work for an abortion fund or an abortion advocacy organization could be part of that type of giving.
I'll stop there, but to say there are lots of creative steps that individual people can take. Well, actually, I will not stop there. I will say one more thing, which is we have experienced almost five decades of abortion stigma. And it was, and is, a tool that opponents of abortion rights have used to make people who support abortion rights, feel like we're in the minority, that abortion is private and secret and shouldn't tell people about it. And, first of all, that's not the case. But, second of all, we are in a moment where we are all, kind of, unlearning that abortion stigma. And so there is also a lot to learn in terms of access to abortion care and reproductive health care based on folks identity. You've probably heard me use the term pregnant people instead of women. That's deliberate, right? Because it's not just women who want immediate access to abortion care.
The other piece is just continue to learn and to listen, there are lots of reproductive justice advocates who have platforms big and small. And we can all learn from their experience and from thinking about how abortion rights is not a standalone issue, but is an issue that also is wrapped up with the right to parent and environmental justice, and racial justice. And so teasing out for yourself all of those different intersections and listening and learning is, kind of, a lifelong pursuit that I'm definitely engaged in, that I would advocate for all of the listeners of this podcast to do for themselves as well.
AK: I want to quote the state legislative wrap up from the Center for Reproductive Rights. It says Dobbs is a warning about the potential for retrogression, and other areas of human rights, such as the right to contraception, the right to marriage equality, for same sex and interracial couples, and the right to engage in private sexual conduct. It feels like we're on this new frontier, and anything seems like fair game. I mean what can we expect? What's going to happen?
ES: Well, for those for those people who haven't read the Dobbs decision, and the dissents and concurrences, they're really powerful. And they set out two very oppositional views of what this country could be and should be. Justice Thomas's concurrence is really sobering because he essentially says there are no substantive due process rights. None. They don't exist. And so all the rights that you just talked about are very at risk.
One of the ways that we do not do ourselves a service is to become complacent, or to decide things are bad, and they're getting worse. And that is how it's gonna happen. But using our voices, standing up for people, and simply saying, like, we aren't going to take this, we aren't going to accept the end of all of those privacy rights. I'm really thinking of creative ways at the state level and cultural change ways, in terms of the national conversation, to really advocate for both the return of abortion rights or, you know, a right to reproductive autonomy that exceeds what we had under Roe and kind of holds a lot of these issues together.
Standing up for these rights and saying, 鈥淲e have to respect the human rights of Americans. And we have to put a system in place in which people can choose if, when and how to form a family and then are able to, you know, parent, their children with dignity, free from discrimination and violence.鈥 Like that is the world I want to live in. And we can all help to create it. It will not be easy. It will not be quick. But we have to.
In terms of the more short term, what can we expect? You know, in the Dobbs majority opinion Justice Alito says we're ending the abortion controversy. We're returning this to the states. The end. But it clearly wasn't the end, right? It wasn't the end because we now have these border regions where as we talked about, abortion is legal on one side and a criminal act on the other. And, this term the Supreme Court is hearing two abortion cases. They, you know, heard the FDA case about mifepristone, the first pill in the two-pill medication abortion regimen. And they will hear a case about whether EMTALA, the federal law that requires hospitals that receives Medicare funding that they have to stabilize people who come into the ER, the justices will hear argument about whether EMTALA requires emergency abortion care, and that case comes out of Idaho.
So, again, the abortion controversy has not ended. And we will see how far the majority in Dobbs decides to go in terms of the FDA鈥檚 ability to regulate prescription drugs. And in terms of, you know, intolerance requirements about stabilizing folks who come to the ER.
And then, you know, in November, we will both have the presidential election, but we will also see what voters do in five to seven states that will have state constitutional amendments on abortion or reproductive freedom on the ballot. We will continue to live in a divided country right where someone's geography and identity, for now, determine their access to care. And that's intolerable. We cannot accept that, we should never accept it. And we do really have the power to work to change it, to ensure that future generations don't experience what we're currently experiencing.
AK: Thank you so much for taking the time to come out to 红桃视频 and speak to our 1Ls and also be on the podcast today to amplify the message. It's informative and hope-giving, in the current landscape. I am also reflecting on something that you shared in the class that sometimes people think how interesting that, you know, your work at the ACLU and your previous work advocating in health law has brought you to a place to not only be along for the ride, but be fighting at the front lines against abortion restrictions.
ES: If there's any message I could leave you with, it鈥檚 that state policy work is very sexy, as opposed to, you know, generations before that thought, ooh, only federal policy work is important. Not true. State policy work is critical, sexy, everyone should do it.
Thank you so much, Elizabeth, for joining us today on the podcast. We really appreciate your voice and especially love connecting with an alum.
Thank you so much. I really enjoyed it.
