thanks so much, everybody.

so this is obviously more material than i can cover in an. so this is a snapshot of the history of reproductive rights and justice starting from the 19th century to the present. it's also something that's in some ways very hard to lecture about now because it's i as as professor lawson said in one of the main historians of this stuff, and i'm also living through it with all of you. so it's a strange time to be discussing this as history when it's also very much real life. so i think now often when we think of reproductive rights and we think of them in the context of criminalization and criminal laws, but that's a relatively recent phenomenon. so if you go back far enough and there's a dispute about this that was reflected by the supreme in the supreme court's decision in 2022 in dobbs versus jackson, women's health organization, the majority led by justice samuel alito suggested that in the united

states to some degree, another abortion had always been a crime. any point in pregnancy, he might have said or might have believed something similar about contraception. but the reality was that for much of united states history, either passing or implementing criminal laws regarding reproduction would have been very difficult, in part because it was all but impossible. identify when someone was pregnant before quickening, or the point at which fetal movement could detected distinguishing a drug was a contraceptive, an abortion efficient, or a drug that simply helped people who were having irregular -- was all but impossible and. physicians relied on highly unusual and ineffective methods to test whether someone was pregnant or not touching. abdomen was considered off limits and inappropriate at a time. women and other people who could get pregnant were often hidden behind screens during, examinations. so physicians to tell people were pregnant would do things like examine noses and mouths, which you might be surprised to learn did not result in reliable

diagnoses of pregnancy. so at this time there was a sort of sense that there were female that might influence pregnancy one way or another. and for the most part, state didn't apply until the quickening. the point which abortion was most often criminalized. there exceptions to this there were laws, for example, poison laws that regulated drugs could kill pregnant people early and pregnancy, particularly starting in the 1840s after a series of high profile deaths from poisonous concoctions used to end pregnancies. there were some states that treated abortion as a misdemeanor for early in pregnancy. there was very little regulation of contraception at all. until the late 19th century and that was to change because of two independent social movements. the first was in what we would view as an anti-abortion movement, though by no means, a fetal rights movement that began in the mid-19th century and was led by in the american medical

association, including horatio daughter, whose pictured here, the american association was new at the time and medical education in general did not in any meaningful way resemble what we would see today. so there were no real licensure in a modern sense. medical education was completely and often not very credential ized at all. the difference between a so-called regular physician and a midwife or a homeopath medicines in the pages the nation's newspapers was hard to distinguish, and the doctors in the american medical association looking for a way to set themselves apart professionally. they also were worried about what they saw as a grievously birth rate, what they would have viewed as white women, anglo saxon women were having fewer children. and as the 19th century continued, this disparity would only grow. so much so that when it had been normal in the united states for decades, for the average family have eight children, that number would decline to three by the

end of the century and disproportionately started worried that decline was coming and families viewed as the best american families at the same time that families disproportionately catholic having more children. he argued too that life began not at quickening, but at conception, and that only physicians like him physician with the expertise to understand science knew when life began, and that this what distinguished them both morally and, professionally, from the midwives and others who disproportionately been serving pregnant people for the centuries before. storer lobbied for laws that would punish not physicians for performing abortions, but patients for procuring them. use his word abortion at this time was still synonymous with miscarriage so the crime he proposed was the crime of procuring an abortion or miscarriage a crime that he proposed should be punished the most harshly when a patient was married, because a married

person having an abortion was married, person rejecting their duties to their partner or this case he would see their husband as much as it was their duties to the nation. storer began promoting these laws in state legislatures in the 19th century and gradually convinced legislatures in most states to introduce laws. although they rejected some of the harshest proposals that were introduced. it was relatively unusual for state laws to authorize felony punishments for abortion seekers and virtually all with the sole exception of new hampshire, included for the life of the pregnant person, something that stoddard also was not concerned about in his proposal storer wasn't alone in wanting to regulate reproduction in this era, this handsome gentleman anthony comstock was part of the picture to comstock's proposals were different, though he was not concerned with what he saw as the taking of fetal life. he was concerned instead with what he saw as obscenity. so business model first

developed in new york in the late 1860s came about because comstock, his own account, was a compulsive master who worried that exposure to pornography was damaging the nation's fabric for young men and women alike. he proposed to new york law that would define a much broader class of material as obscene everything from medical textbooks to involving nudes as as abortion and contraception which he defined as obscene to indeed, not just abortion and contraception, but any remedy for female troubles, as he would put it, because there was, of course no way at the time for anyone to discern consistently whether someone was pregnant or whether drug acted as a contraceptive in abortifacient. in an amended gog for regulating --, or is a placebo or a snake oil remedy. comstock's model that passed in new york in 1868, then quickly went national with the advice a supreme court justice named william strong comstock went to congress and convinced them to

pass the comstock act, which made it a federal crime to. mail any of the items listed or in the comstock act as well as receive them subject to up to several years in prison and a hefty so comstock perspective was different. he wasn't invested in protection of fetal life. he was invested in stopping sex. he argued that the problem with abortion and contraception was that if people knew they would available were available, they would what he called incentives to crime essentially they would be able, as she put it to conceal their sin because they would be able to have sex without consent winces. and so both of these models quickly spread there are state comstock laws. this was an era when for the first time state laws many parts of the nation criminalized birth control, many of them on comstock model. and significantly, there was a close connection between reproductive rights and freedom of speech. comstock model criminalized not only the mailing of items used for things like contraception and abortion, but information

about one. so there was always a sense that telling people about how you could get these things or how you could do these things was as deeply problematic, in his view, as the doing of the things themselves. in the 19th century, though, was hardly a period in which people stopped having abortions or using contraception. indeed, the birth rate continued to plummet as states began implementing both bans and many comstock laws and as comstock enforced the comstock act in increasingly ludicrous ways, including, for example, confiscating the reports to donors of suppression societies for the suppression of vice like his own because they had reported on existence of things like abortion in contraception, informing people that were arresting people for abortion and contraception was obscene because then people would aware of abortion and contraception. having said that, of course, in the 19th century, it seems as abortions were actually

increasing, use was increasing too. and so there was sort of an uneasy compromise that emerged where americans having abortions and using contraception. but no one was really arguing that there was right to do either one or that either should be legal. at the same time, advocates for abortion bans were arguing that fetuses or unborn children were persons, but no one was arguing that abortion laws were liberal, were unconstitutional either. this was kind of a constitution free zone for some time, and that began to change gradually in part because of another movement that would have a strong effect on reproductive rights and justice down the road. the eugenics movement, eugenics, as it concept was a term coined by francis galton, a cousin of charles darwin in the late 19th century. and the idea galton had was that if you could breed livestock to improve its genetic qualities, why not breed? as galton wrote, human beings to

have better genetic qualities and exactly what eugenics would mean legally complicated for some time. so some scholars and legal argued that there should be legal incentives for the quote unquote right sort of people to get married. there were, for example, better baby contests where the purported genetic quality of infants would be rewarded with cash or apple pies and of course, there were much more interesting what's called negative eugenics, right? using law to prevent the, quote unquote, wrong people from having children initially. some of these laws focused on access to marriage, on the theory that if people were, for example, suffering from sexually transmitted infections, they shouldn't get married. but then, of course, reformers quickly realized that people could have children and have sex without getting married and turned instead to compulsory, sterilized zation laws which are on the books were on the books in more than 30 states in the united states, including california, which was one of the nation's leaders, compulsory sterilization.

these laws applied to people we now recognize as having mental illnesses or disabilities, but to a much larger of persons as well. california, for example, often targeted persons who were viewed as sexually promiscuous on the theory that sexual promiscuity, particularly in women, was a sign of feeble or genetic unfitness. overwhelmingly, the people targeted by these laws were already in state institutions. they were overwhelmingly low income people. initially, they were overwhelmingly white people, in part because of either disarray or de facto segregation, ensuring that people of color had no to state institutions or services. all this was to change after world war two, when people, color, particularly black people, made up into majority of sterilization victims of sterilization moved south. the eugenics movement changed the status quo when it came to abortion and contraception a few ways. obviously in a sense, the eugenics movement was compatible with what had come before because just has been the case with storer or comstock.

the message of the eugenics movement had that. of course, it was the role of the state to control who and how, albeit a different way. the claim of authority from eugenic of eugenicists was not moral. comstock's was, or even christian. it was. it in scientific expertise, eugenics simply do better than everyone else. argument went about who should reproduce. on the other hand, the idea eugenicists was that more reproduce was not always an unmitigated good and in fact that certain circumstances it may make sense for certain people not to have at all or not to have children, and that the cost of having children, not just to the individual but to the state, was something that the state take an interest in. it was at this time that first birth control movement organized and that movement had, to varying degrees, involvement in the eugenic movement itself. so you see your pictured margaret sanger, some of you, most of you know, as the figure who coined the term birth control, the founder of planned

parenthood, who began her career in the 19 teens connecting birth control to socialism and the rights of workers and transition in part to in trying to enlist the support of eugenicists who were at the time enjoyed popular backing across the ideological spectrum. everyone from conservative catholic activists to members of congress themselves as supporters of eugenics. and sanger, who was deeply pragmatic, believed that her cause, which she saw as an individual right to birth control, would be more popular if it were embraced by eugenicists, too, some of her colleagues, including mary, were denette, who's pictured to her, rejected this idea courting eugenicists and instead framed birth control as an issue of dennett argued that it was unreasonable to assume, under the comstock act, that americans were incompetent to decide for themselves when to have children, much less when to consume information about birth control, and that it was inconsistent with the idea of

democracy to patronize americans in this way and to deny them this kind of information. the fight for birth control gained outside of white community. two prominent activists like w.e.b. dubois and mary church terrell, who's pictured here, endorsed use of birth control in their communities, even as birth control, like many of the era, had ties to eugenics. the birth control movement, the most part, didn't embrace idea of a right to abortion at all, although precisely what it was embracing complicated at a time when no knew how drugs worked. so common that were marketed at the time like a miss lydia of pinkham's remedy, for example, were sold as contraceptives and abortifacients, and many viewed them as placebos. that didn't work at all so precisely a right to birth control would entitle you to was ambiguous, even if no one was endorsing abortion on its face. in fact, if anything, sanger argued that abortions which were

dangerous at the time one of the leading sources of maternal and morbidity would result part because access to contraception was denied. there had also been an unspoken consensus about how criminal abortion laws would be implemented that had applied for this era overwhelmingly when abortion was justified, had been left to discretion of physicians who could invoke exceptions for the life of the patient. but the difference between and health of the patient in 19th and early 20th centuries was nonexistent at a time when maternal mortality morbidity rates were high. even compared to the shameful current standards for maternal mortality and morbidity we still experience so upshot tended to be that physicians were rarely prosecuted for abortion unless a patient actually died and often were prosecuted using the dying declaration or dying words of the patient themselves as

competent practitioners by. contrast were rarely prosecuted at, and even those who did face prosecution and often weren't facing long sentences and sometimes came to practicing abortions after their prison ended. after the 1940s, this changed pretty dramatically for a few different reasons. first, it was longer easy to deny that abortions occurring in the 1930s rates of contraceptive and abortion use increased exponentially during the great depression. abortion were still unsafe, as was pregnancy and entire hospital wards were dedicated to people suffering the complications of illegal abortions. so the idea that abortion is just not something happens here was no longer possible to maintain. at the same time, prosecutors began to see abortion is more of a problem in the aftermath of world war two, at a time when, americans were encouraged to have bigger families as part of the war effort and the of the country after the war being pro

baby and having big family was seen as kind of antidote to communism at a time when the soviet union had legalized abortion and the soviet union's embrace of smaller families and working women was seen as disturbing utterly un-american and un-christian. and conversely, abortion providers were seen as distinctly un-american and un-christian as well. it was in this era that abortion providers began deeming abortion providers excuse me, prosecutors began deeming abortion providers racketeers term that was often used for organized. and on occasion this was accurate because abortion was illegal, there organized crime figures in certain instances were involved in access to abortion. but most often it was a term applied to any abortion provider, including grandmothers and other people helping family members have abortions. and as this happened, as abortion prosecutions began occurring there were also questions about how this was intersecting the politics of illegitimacy and race.

this was an era people who had children out of wedlock who were white were often sent to maternity homes where they would give birth and have those children adopted by others to conceal that. they had had a lapse for what was a what was perceived as morality. by contrast, people of color who were having children out wedlock were not seen as viewing as lapsing for morality in the same way or were punished in different ways. so this an era as the 1960s began when states like began considering proposals to sterilized people who, had more than one child out of wedlock overwhelmed, a law that was intending to target welfare recipients who are people color. and when discussion out of wedlock pregnancies became a different way of expressing racial animus, all of this was in the background when it finally i think you began to see reprint action as a constitutional right, this case,

griswold versus connecticut began with a mini comstock law, the most egregious of its kind, the era. connecticut had a ban on married people's use of contraception, and this was not a ban on sale or manufacture. it was a ban on use. the only one of its kind in this a time after the fda had approved birth control pill and millions of americans used it. the parties in griswold had tried to get the supreme court to take the case on the constitutional of this law before and had failed because the court had said no one to enforce the law anymore. so griswold and her colleagues engineered a way to get the law enforced essentially starting an illegal birth control clinic and but calling up law enforcement to tell them were violating the law and then freely volunteering lots of information while being that could be used in subsequently the court in griswold versus connecticut ultimately did strike down connecticut's law and so on the ground that there was a constitutional right to privacy not spelled in the text of the document, but a right that was

capacious enough to protect married couples, right to use contraception. at the time, griswold was decided, it was unclear how much this was a decision about marriage, which the court described as an institution older than the bill of rights. and to what extent this was a decision about the importance or the privacy, one had any time one engaged in sex or sex in particular, and at the time, because of the ambiguity. griswold surprising groups of people supported it. so, for example, large percentages of catholics and even some catholic activists supported griswold as a reasonable, all kind of middle ground decision. but how broad or narrow the right to privacy would be contested in the years to come? and in advocating for what might look like beyond that, you also had a very different landscape in terms of whether would be reproductive rights and what that would look like. in part, that had to do with the rise of a women's liberation movement, as it was called the national organization for women, which was one of the largest women's liberation, was founded in a washington d.c. hotel room

in 1966 and selected betty friedan, who's pictured top one, who's then kind the closest thing to a feminist celebrity as its president. polly murray, who's pictured at bottom of pioneering lawyer and civil rights activist, co-founded the national organization for women with friedan. and within a year of the organization's founding began to argue that reproductive rights, women's rights and critically constituted panel rights. there was a bit of a fight within about whether to endorse a right to abortion. but after the organization did so, friedan would often describe abortion, as she put it, as a woman's civil and would argue that there could be no full personhood for women until they had the ability to control their reproduction. radical feminist groups often based on college campuses like you davis, made even more bold feminist arguments for access to both abortion and contraception,

often and often, particularly when activists of color were involved frame those interrelated rather than as discrete rights that could be understood in isolation. it wasn't the women's liberation movement alone that was pushing to change policies on birth control and abortion there was also at the time what was called the population movement, the population control was incredibly complicated. some of it had come directly from the eugenics movement right? some of the organizations founded as part of the population control movement were founded by eugenicists who recognized that they could no longer openly be eugenicists in the united states after. the second world war, when eugenics had kind of become a term of derision, something that was marked by scientists as racist and out of touch with kind of evidence or data population, by contrast, argued that it would be good for nation and for the world if fewer people had children. full stop. this argument had a lot of support in a way that eugenics didn't. so some eugenicists believed that if people had fewer

children altogether. the quality of the population would improve. so this would be sort of a backdoor way of achieving eugenic goals. but others were attracted to population control movement for different reasons. at the height of the cold war, many of congress believed that in poorer nations, if people had more, they would be poorer and more and more open. the kind of solicitations of the soviet union on college campuses population control was often synonymous with an emerging environmentalist movement. the idea that more people will consume more resources and lead to environmental depredations or more climate change, and many feminists on college campus saw population as a way to talk about rights for women. so you often had a big, diverse movement, sometimes talking past each, but agreeing that laws, least some laws on birth control and abortion had to change. there was a pretty vibrant debate within the black community to some leaders of the

black power movement like brown, pictured here argued that abortion and birth control both were strategies for what he called black genocide. and there were two flavors of this argument. one provided that abortion, birth control were trying to reduce the size of the black community at a time the black community needed numbers to fight for civil rights. another argument provides that people offered in the white world abortion and contraception solutions to poverty rather than addressing the root causes of poverty itself, like a lack of education or structural racism. women in the black power and civil rights movement often pushed back against this claim, suggesting that women in the black community needed wanted access to abortion and contraception, and that abortion in. contraception would help people of color equality rather than undermining the struggle of equality and framing the black genocide argument as a sexist one, if not a racist too. so it was at this time, by the

1960s that states began considering changing the laws that horatio storer had so vigorously promoted in the 19th century. and california was the epicenter of this effort to you have anthony violence and pictured at the bottom of the screen here, who was one of the proponents of one of the first major abortion reform bills beilinson and his colleagues often look to a model developed by the american law institute in the late 1950s which permitted legal abortion under a certain narrow set of like sex cases, sexual assault or incest, certain fetal abnormalities, threats to health and the like. the justification often that violence and and his colleagues argued was that these abortions were happening any way and that they were unsafe. they were performed unsupervised in back alleys, and that it was far if abortions were going to occur anyway, that they occur safely and in therapeutic conditions. some activists like pat mcguinness, who was pictured at the top your screen here,

another in california's abortion reform movement, made avowedly feminist arguments. reform, too. but the reform movement gained some steam interestingly, not in states like california, but in states across the american south, which were some of the first to consider abortion reform like georgia became among the first to adopt this model. and abortion reform prompted the formation of a new movement very different from the anti-abortion movement of the 19th century. horatio stores or anti-abortion, had been overwhelmingly protestant elite, overwhelmingly professional led movement. and the anti-abortion movement of the 1960s was overwhelmingly catholic at its inception, often started directly in catholic diocese by figures in the church, and it made very arguments. so when states began reforming their abortion laws, anti abortion figures, for example, would argue that was unnecessary to legalize because pregnancy

was no longer dangerous as a result of the advent of caesarean sections and antibiotics or that pregnancy in some of the violence and pointed to like sexual assault was all but impossible and. unsurprisingly these arguments were not successful. people were getting pregnant in these scenarios. and so instead people in the anti-abortion movement began to argue that liberal abortion laws were quite unconstitutional because word person in the constitution, particular the equal protection clause in due process applied from the moment an egg was fertilized and that liberal laws then violated the rights, equal protection and due process under law of these fetal persons. an argument that we've seen play out recently in court decisions in alabama and elsewhere. so the anti-abortion movement initially fighting for the status quo, right. fighting for criminal laws that had been the books since the 19th century, including laws like new hampshire's, where there was no life exception, which the anti-abortion movement

fought to maintain in the face, an effort to include a new life exception. it was against this backdrop that the supreme court ultimately to hear roe v wade, a backdrop of extreme state by, state conflict, conflict that was unfolding in terms of ballot initiatives, state legislative struggles and litigation launched by both opponents, proponents of legal abortion, which had led to sort of a stalemate. neither side had a particularly keen edge. there were back forth moments, one of the most pronounced being in new york state, which became the first state to repeal all of its will, actually second after hawaii to repeal all of its criminal abortion restrictions before viability. but it was at this point that at the the democratic party, which in new york was the more anti-abortion party, had a majority that voted to reinstate state abortion restrictions in the state and had that vetoed by a republican governor, nelson rockefeller. so the partizan politics of abortion were very but what was similar was that there had

already been a profound conflict that had emerged that reached beyond the contours just of abortion. roe, of course, involved a woman named norma mccorvey, pictured here, who had already had several children. she had given up for adoption and when she was pregnant on a third occasion, decided that she wanted to terminate that pregnancy she consulted an attorney with whom she had worked on her past adoptions, who directed her to two lawyers, sarah weddington and, linda coffey, who had been looking to take up a challenge to texas abortion law, which like most at the time criminalized unless a patient's life was at risk. mcwherter, of course, wanted to have an abortion not become plaintiff in a test case, but that is ultimately what happened in what her lawyers was in seeing happen. the court in roe ultimately held that the right privacy recognized in griswold and so expanded and significant decisions was broad enough to encompass a patient's decision to terminate her pregnancy. the court suggested the decision to have an abortion was salient

in similar ways to decisions to get married, to have a child, to use contraception. that these key life decisions about and intimacy were protected significant state interference at some point justice harry blackman, the author of the opinion nixon nominee and himself a pointed to what he saw as the consequences for an unwanted of an unwanted pregnancy for a pregnant person such as the health risks of pregnancy or the stigma of unwed but often roe focused the rights of physicians, suggesting that the abortion decision belonged jointly. the patient and the physician at various points after roe, people in fact thought that it was a right for a physician to choose abortion, not for a right for women the court explicitly rejected the claim of fetal personhood that the word person in the relevant parts of the constitution applied only postnatal and initially roe less of a big deal than you would

have expected. it was not the top story in new york times that day, although to be fair there had just been lyndon johnson had just died. so it wasn't that it wasn't that weird but i don't think people understood that it was going to be as big of a deal as it was because as blackman himself said at the time, in his papers, he was simply doing what he thought the constitution required, but also what the polls said. right. the poll said most people think abortion is a decision between a woman and doctor recognized a right to abortion didn't mean abortion was accessible. so there there were birth control clinics all across the united states. there was nothing comparable when it came to abortions. the overwhelming majority of in the united states in the 1970s were performed in hospitals. and somewhere between 15 and 24% of all hospitals offered abortions meant that the vast majority of americans who needed access or wanted access to abortions, lived nowhere near a hospital so this was the birth of the abortion clinic. organizations like planned parenthood and the national

abortion rights action league raised money to create clinics, which would be both in terms of radically expanding to abortion and also laying the groundwork for the idea that abortion was quintessentially different from birth control. quintessentially from health care, and physically isolate from either one. right. so this was the beginning of what would become a massive anti abortion protest outside of clinics, which not viewed the same light hospitals in it was in this era to that abortion groups did not at all back from the idea of fetal personhood. the overwhelming focus the anti-abortion movement in the years after roe was they called a human life amendment a constitution amendment that would change the meaning of word person in the 14th amendment to apply to a fertilized egg or any other an embryo, a fetus, the human amendment was so important to the anti-abortion movement that when members of congress suggested it would be easier to get an amendment through that said states had the right to do

whatever they wanted about abortion. anti-abortion activists overwhelmingly rejected the idea, saying it would essentially roe, which in their view, stood not for the proposition that there was a right to abortion particularly, but that there no right to life for a fetus this struggle for the human life amendment brought the anti-abortion movement into electoral politics as the movement desperately struggled to find allies in congress, state legislatures who would support human life amendment. and it ultimately brought the anti-abortion movement into an alliance. the republican party, which the era of ronald reagan came to the movement and the human amendment as a potential path to power, a way to peel off conservative and evangelical protestants who had voted democratic, often for reasons economics, but who be convinced to change the republican party as a result of the abortion it was in era, too, that the anti-abortion movement stumbled upon a more ultimately excuse me, consequential

strategy the what we would think of as kind of incremental ism where death of a thousand cuts and this began with the hyde amendment. the hyde amendment was the brainchild of henry hyde a long term legislator from illinois who proposed that medicaid patients should be unable to get reimbursed for most or all. and at the time, the hyde amendment is part of an appropriations bill passed with the votes of both democrats and republicans at a time when abortion rights was already becoming a democrat a cause. why that was in part was because people in the democratic party believed, the supreme court would take care of it and strike down hyde amendment. and it was in part because was already less emphasis put on access for low income people than would or really ought to be the case. the hyde amendment passed in 1976, and it had immediately significant impacts, a large percentage of people pursuing abortion in the 1970s in the united states were medicaid

recipients, and by most estimates, upwards of 200 or 250,000 patients each year who otherwise have had abortions were prevented from doing so as a result of hyde amendment. the hyde amendment also ensured that people who were low income would have to rely on an intricate network of abortion funds and private charities for money to seek out abortion. and that in some ways is what became of the grass roots of the reproductive rights movement in the immediate aftermath of roe, they all went into service and access work, which is part of i think explains the lack somewhat of a visible grass roots in the post roe era. there was of an early reproductive justice movement to that argued that what had become the so-called pro-choice movement which to protect the right recognized in was not enough and? this movement, in part, took its inspiration from an epidemic of sterilization abuse. women of color. in this era, other people of color were being involuntarily, sometimes under existing eugenic

sterilization laws, sometimes no legal authority at all. physicians were notorious in cross parts of the south, offering what they called mississippi appendectomy, in which patients who went in for childbirth or other services were involuntarily sterilized without their knowledge or consent again, particularly in states like mississippi, the was particularly acute in puerto rico, where a large percentage of women at some point in their reproductive lives were sterilized, often with questionable no consent. and so activists like helen rodriguez trias, who's pictured here, argued that any movement for reproductive rights had to be not just a movement for freedom from the government but a right, a movement that sought to protect using the power of the government. right. a movement that would say the government should guarantee informed consent. government should guarantee the means for people want to have children, to have them. and rodriguez and her colleagues founded organizations like the committee to end sterilization

abuse, 1974 and broader multi issue groups, a group called claressa or two and two, both of which were reproductive justice groups founded in the late 1970s. but none of these groups succeeded, in slowing down the attack on abortion rights and other forms of reproductive health care, where that attack turned ironically involved two improbable things. sandra day o'connor in akron, ohio, don't usually go together so. akron, ohio was the site of an ordinance that had been marketed as the anti by anti-abortion movement, as a model for the rest of the and its constitution ultimately came before the supreme court in 1980, after o'connor had become ronald reagan's first supreme court nominee. the anti-abortion movement hated sandra day o'connor. they thought she was a supporter of abortion rights and a feminist and generally just gross and she saw, to their surprise, dissented from an opinion by the court striking

down this akron ordinance, not to say the ordinance was constitutional, but to say that roe itself was fatally flawed and that if roe itself was fatally flawed, it was at least deserving of some reconsideration. so the anti-abortion movement, which been utterly unable to get a constitutional off the ground, needed a plan b, it was unable to get that constitutional amendment off the ground. when ronald reagan was in power, when republicans controlled both houses of congress, and when it as if republicans had fared better than in state legislative elections, there was still no prospect of a personhood and no prospect even of agreement on a second best solution for the anti-abortion movement. so if there was going to be no personhood amendment, what could there be? well there could be control of the supreme court and with control of the supreme court, there could be the upholding of more laws, the hyde amendment, which would mean less to abortion and a right to that would mean very little or less. and less in practice, a right that people would feel less compelled or energized to defend. and with that, ultimately to in

the long term could a supreme court that would recognize the fetus as a person in a way that an american public that seemed to reject the principle never might. and so with this, the anti-abortion movement proceeded to focus on incremental item looking for laws that could be argued to be consistent with roe and then defending them before courts and the movement to begin, look for arguments that would cement its relationship with an emerging conservative legal movement. it's hard to imagine as a non historian how liberal the legal orthodoxy prior to the 1980s was or overwhelmingly the justices that someone like richard nixon selected were themselves not conservative because the legal, the bench and the bar were fairly on the same page in terms of conventional legal. this was to change the founding of the federalist society by three law students in the early 1980s. the federalist society's

founders believed that this liberal liberal orthodoxy stifled debate on law school campus. and very quickly, the federalist society, a center of power. ronald reagan overwhelmingly, even in the early years of the group, looked to federalist society advisors and speakers to staff his administration and nominate judges. but for the anti-abortion movement, this was not an unqualified good development to begin with. not everyone in the federalist society liked the anti-abortion movement or agreed that abortion should be criminal and other members of the federalist society just thought that anti-abortion movement was too extreme to affiliated with law breaking to or affiliated with christianity to be worthy of partnering with. for a group that wanted to create a legal elite. this convinced the anti-abortion groups that they needed to find common ground. and so they began, for example to look for strategies that would rely more on the role of history or even original intent. and this changed arguments against abortion in ways that

are still consequential today. it also led anti-abortion groups to argue that pregnancy should a crime more so than it already had been. that pregnant drug could be charged with child abuse, that people who killed pregnant people be charged with homicide rather than viewing the personhood of the fetus as something that would require more support for pregnant people. instead, the argument was the fetus was a victim of crime, just as were others in ronald reagan's war on crime, and that theay to protect the rights of a fetal person was to exact retribution against who wronged the fetal person. it was this backdrop that the supreme court decided case planned parenthood versus casey in 92. at this time, everyone expected the supreme court to roe. but the court in casey defied expectations and preserved what it called the essential holding of roe that there was a right to choose abortion before viability or the point at which survival outside of the womb was possible. casey also held that laws were

permissible, though if they didn't unduly abortion, unduly burden access abortion. and this seemed to be a pretty standard. and indeed the court in casey upheld every abortion restriction before it but one casey also focused the anti-abortion movement in a new direction on the argument that if women and other pregnant people were abortions second victims because opponents believed it if the supreme court longer concluded that there was a tension between the rights of the fetus and the rights of pregnant people they would no longer justify rights. so anti-abortion groups set out to create their own research institutes and journals to publish claims that abortion increased the risk of things. post-traumatic stress disorder and breast cancer. it was in this era, too, a more vigorous and long lasting reproductive justice movement formed, led by, like sister song members, of which are pictured here the reproductive justice movement pushed back against this idea that women to be protected from abortion

particularly by saying one this was an argument that presuppose that people of color were being easily led by a predominately white group of physicians. and two, by saying that this argument make sense because it presupposed that people were having healthy pregnancies and safe experiences raising families. but for the experience of abortion, when, if anything, the opposite was true, when there were problems of maternal mortality and, morbidity, lack of access to contraception and sex education and health care writ large in communities of color that had to be too, while contending that it was not enough to simply pursue abortion rights that a more capacious right or agenda for reproductive justice had to be considered. the anti-abortion movement had allies in this period, too, particularly, that consider themselves openly christian and argued that the founding of the united states had been a christian event with a christian constitu ation that should be interpreted in line with christian principles. groups like the alliance defending freedom, founded in 1993, became with massive budgets and reach that began to

reshape the fight against abortion, proceeded moving it away from a single issue, struggle about one thing abortion and a broader kind of agenda that presented abortion is connected. religious liberty, the separation of church and state, lgbtq rights and more. the supreme court intervened another time before dobbs, upholding a ban on so-called partial birth abortion in. 2007 and the anti-abortion movement itself heavily in cases not related to abortion, including issues campaign finance, believing that if more money flowed into american politics, more republicans would be elected and the anti-abortion movement would gain more influence over the republican party, making it easier, get the right kind of judges nominated and ensure that roe would be overturned. and in fact, that's what happened in dogs in 2022, when the court, faced with a 15 week abortion ban and dispute in the lower courts about the constitutional of such a law,

nevertheless, to take the case, roe v wade and declare a right to abortion was never was not and never had been rooted in the nation's history and tradition. dogs, of course, has received lots of attention from historians for lots of reasons one of which is its ignoring of among historians about what history and tradition actually say. but of course, stubbs also the door to other potential challenges to reproductive rights down the road, some of which we can about since we've seen lots of different kinds of litigation that point to where some of this history may be going. there's what i think is an insipid emergent campaign to reverse. dobbs centered on abortion exceptions. women like kate cox, pictured at the bottom in amanda's roski here are arguing that state abortion bans with exceptions, either have to be interpreted broadly or that those exceptions fact violate state constitutions. so this litigation is continuing

in states like texas, kentucky, tennessee, elsewhere. again, this is state constitutional litigation. it's not a direct challenge to dobbs, but it's designed to deal dogs a death of a thousand cuts. right. to say if this is the world dobbs is ushered, it's unworkable. we've seen two counts in two us supreme court cases on abortion in one term. after dobbs told us that the federal courts were out of this game, one of which involves fda's authority to approve mifepristone on a drug used in more than half of us abortions. the case also involves a claim that the fda never had the authority to make abortion pills available via. telehealth because anthony comstock's law never repealed and is argued make it a federal crime to make abortion related items. today, there's another case involving the federal emergency medical treatment and labor act, which the biden has argued requires access for abortion to patients in certain medical emergencies. this claim this case also involves the claim by states like texas and idaho that federal actually treats an unborn child as patient, and

that some states like california may be prohibited from providing access to emergency abortions because of the federal law rather than required to do so. and finally, of course, as we saw just in the past few weeks, there's the ongoing struggle for fetal personhood. if you were wondering what is the next roe v wade for the anti-abortion movement, it was and always been fetal personhood. but now that roe is out of the way, the campaign for fetal personhood has intensified considerably. it's reflected in state laws, recognizing the personhood of fetuses for personal purposes like tax deductions and child support laws, and recently a decision of the alabama supreme court holding that for the purposes of state's wrongful death of a minor law, a frozen embryo is a child person, and that therefore suits, for the destruction of embryos can be brought as a wrongful death suit. these claims are all designed eventually to return, ironically, not to congress, not to state legislators, not to voters, but to the us supreme court, because we've seen after

surmised, ironically that when voters are faced with questions involving reproductive rights and justice, they tend overwhelmingly to support reproductive and justice. and so instead groups have long complained about antidumping courts interjecting themselves into questions. reproduction are instead seeking out courts and arguing that as a matter of the constitution's original public meaning access to abortion, potentially access to ivf potentially access to contraception is itself unconstitutional. so when ask me sort of my favorite question is people usually not from the united states, me, when is this going to be over? and answer is probably never right. but i think one of the other things that's clear in the history of reproductive rights and justice is there's always very much been a story about the health of democracy. right. who gets to vote whether you get to vote at all how money is influencing how you vote? and so i think in terms of how this turns out a good barometer will be, how healthy is the democracy in the first place?

so i'll stop there. so i think people are supposed to ask questions. then c-span is going to follow you covertly with them. so if people have questions, just raise your hand. yeah, we're not. oh, go ahead. yeah just a sec. over here. so again, again. but. so just way of transparency. mary grogan, provost and executive vice chancellor at uc davis and a reproductive

perinatal epidemiol. just who is thrilled. thank you. recruited to uc. so one is thorough we comprehensive this was and it's amazing talk and delivered exceptionally well the the one thing i didn't hear was one person who i've worked with in field is dolores huerta. mm hmm. who worked very hard against sterilization. mm hmm. of latinos. particular in relationship to the farm workers rights movement. and i wondered if you had anything to say on that, because those was another one of these intersections. time in the 1960s and seventies, that was pretty dramatic. and again particularly in california. yeah. i mean, california was was the site of a lot of forced sterilization, said a lot of points in time and in the sixties and seventies in

california just as was happening in other states overwhelmingly forcible sterilizations from being a problem primarily for low income white who had been more exposed to the state to being a problem overwhelmingly affecting people of color, and particularly latino women in the united states and in california particular. and so this was part of i think this, the move toward a reproductive justice movement really across the country, because in new york, it was people who are puerto rican. in mississippi. it was people who were black in california. it was people were latina. and so it wasn't people of color who were leading a reproductive justice movement, but they were often the ones saying a reproductive right doesn't mean anything. it presupposes that you don't ever need the protection of the government. sometimes you may need the government to support not just to leave you alone. and that because people like those in california were experiencing that firsthand, right? they weren't they didn't have the privilege of just saying, okay, the government has gone away. now i'm. all set. that wasn't their experience. thank you. yeah, of course. oh, time's up. okay. well, thanks so.

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