• Show Notes
  • Transcript

Heather and Joanne react to the overturning of Roe v. Wade. How did we get here? What does the Supreme Court’s decision in Dobbs signal for the future of women’s reproductive rights and broader civil rights in America? What kind of unique perspective do women historians bring to understanding this moment?

Join CAFE Insider to listen to “Backstage,” where Heather and Joanne chat each week about the anecdotes and ideas that formed the episode. Head to: cafe.com/history

For more historical analysis of current events, sign up for the free weekly CAFE Brief newsletter, featuring Time Machine, a weekly article that dives into an historical event inspired by each episode of Now & Then: cafe.com/brief

Executive Producer: Tamara Sepper; Editorial Producer: David Kurlander; Audio Producer: Matthew Billy; Theme Music: Nat Weiner; CAFE Team: Adam Waller, David Tatasciore, Sam Ozer-Staton, Noa Azulai, and Jake Kaplan. Now & Then is presented by CAFE and the Vox Media Podcast Network.

REFERENCES & SUPPLEMENTAL MATERIALS

 

  • “The Dobbs v. Jackson Decision, Annotated,” New York Times, 6/24/2022
  • Justice Benjamin Robert Curtis, “Dissenting Opinion, Dred Scott v. Sanford,” Rutgers, 1857
  • Amy Howe, “In 6-3 ruling, court strikes down New York’s concealed-carry law,” SCOTUSBlog, 6/23/2022
  • “Anson Burlingame,” HarpWeek, 1998
  • Frida Ghitis, “Opinion: These two women reminded America why Tr… must be prosecuted,” CNN, 6/23/2022

Heather Cox Richardson:

From CAFE and the Vox Media Podcast Network, this is Now and Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman. Today we’re going to be doing something a little different. We are recording this episode on the afternoon of Friday, June 24th, just a few hours after the announcement of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which essentially overturned the constitutional right to abortion.

And what we thought we would do today is Heather and I would have a conversation with each other, not planned, certainly not scripted, but that really what we would do is engage with each other as historians, as American citizens, and as women, and talk about how we are processing this moment at this time. It seemed to us as though this offered a unique opportunity for us to think historically in the moment, and to share that kind of conversation with you.

Heather Cox Richardson:

What are you thinking about?

Joanne Freeman:

What am I thinking about? I was in the middle of doing a webcast when someone put in chat that this had just happened, and it silenced me. And I suppose because of the many levels of response I was having, I often jokingly refer to my multiple brains, and I talk about my historian brain and my citizen brain and my Joanne brain. And I often will say historian brain is standing back in the moment and looking at the historical significance, and citizen brain is thinking on an immediate level, how does this affect me as an American citizen, and then Joanne brain is having the emotional reaction. And I would say I had some of all three.

So certainly, historian brain immediately focused on what the precedent was historically. And I will say actually here at the outset, as I make a reference to that, that it’s worth noting. And we will be providing a link to an episode that we did on September 14th, 2021, which was called Abortion, Whose Choice? Which talked about abortion in a historical context. So although this is unscripted and we’re really processing in the moment here, you will also have access and a link to this episode that we did a little bit earlier.

So historian brain was thinking historically. Citizen brain was pretty alarmed. And I know Heather, you and I are probably going to talk about the larger implications of this in combination with other things that are happening at this moment and what it suggests about being an American citizen and the direction that the United States is going.

Joanne brain was and is outraged and more upset than I can say because of the implications of this in a sweeping kind of a way, and in a personal kind of a way. I won’t go into that right now, because I think we’re going to chat here as historians, but suffice it to say I think that many people listening are going to be sharing my feelings. And in a sense, I’m sort of pushing them to the side at the moment, so that we can have a useful conversation.

Heather Cox Richardson:

So it’s worth pointing out that this is the first time in our history that majority of Americans have lost a constitutional right. That’s a really big deal. We have certainly in the past had Supreme Court decisions that did not affirm a right that people thought they had. So for example, the Dred Scott decision of 1857, which did say that African Americans were not citizens, that was something that was on the table, but they had not yet been legally called citizens by the federal government. This is the first time we have had a right for 50 years and had it taken away. And to me that is simply the capstone of where our government has been going for the last 40 years.

So the loss that I see in Roe is simply devastating to women and to their partners for the degree to which it circumscribes their lives. I mean, the whole idea behind the movement to make the right to abortion a decision between a woman and her doctor was because of the fact there was a public health crisis in the 1950s when doctors estimated between a half a million and two million illegal abortions happened every year. And I was thinking today, it’s sort of like the anti-vaxers going, “We don’t need vaccines against whooping cough, because nobody gets it anymore.” And they stop taking them, and then all of a sudden babies start dying of whooping cough again. And I think people are not prepared for what that’s going to look like and everything we can talk about that goes with that.

But more than that, this decision is in keeping with the decisions that this particular Supreme Court, which has been packed by Donald Trump with three theocratic judges, and they’re not conservative, they’re radical theocrats, to institute in this country, their version, which is a minority view, of what society should look like.

So just yesterday, the Supreme Court overturned a state law. And that law would’ve restricted people’s ability to carry guns outside of their homes. And yet, the whole idea that they have been arguing for overturning Roe v. Wade, is that there is no federal defense of that constitutional right, so states should decide it. Well, yesterday the states had decided to regulate guns and they’re like, “No, you can’t do that.” And if you read Thomas’s decision today, he says there was never any right to abortion in early America. And of course that’s a completely ahistorical. And yet, in yesterday’s decision about regulations of guns, they held pretty much the opposite, that there was always a constitutional right for everybody to have guns under every circumstance, which is again, completely ahistorical.

So it involves us as historians in a sense that they are inventing a new history to create a modern world that reflects their ideology, which is just radical. And so to me, I’m really sort of stunned.

Joanne Freeman:

No, I feel the same way. For one thing, it’s history as a cudgel and a very carefully crafted lens to be able to make points that otherwise it’s difficult to sustain, which is why it becomes so important to insist that things did or didn’t happen in the past, because historical precedent, invented historical precedent stands in for other things that can support these decisions that are being made.

And we live in a moment when in one way or another, we can talk about the creation of histories of the past that are conveniently insisting on things or eliminating things in a dramatic and drastic way to score points. History is always political, but we’re seeing it used in a deliberate way in the recent past. Again, along these lines, this isn’t new, but it’s here in a Supreme Court decision being used for a very explicit purpose.

So I think that’s part of what we’re seeing. But I totally agree with you. And in conjunction with the decision yesterday on guns, in addition to this decision being a slap in the face, it absolutely, I don’t even want to say signals because that’s not a strong enough word, it advertises the fact that this is part of a vision of what America should be. And in Justice Alito’s 79 page opinion, he said that abortion “presents a profound moral issue on which Americans hold sharply conflicting views.” He said that Roe, the original decision was “egregiously wrong and deeply damaging and thus should not be allowed to stand.” And that the issue should thus “return to the people’s representatives.”

So it is a moral issue. That is the way in which it was being discussed in this decision. It’s a moral issue that needs to be acted on. And that’s underlying this decision in a way, again, as you suggested, Heather, talks about a much larger vision of society. But one of the points that you and I were discussing right before we plunged into this is what does it say about the view of American society overall? And I said are they thinking about society? Are they thinking about a larger society? Or are they thinking about an agenda that they want to promote about what they want the United States to be like, that isn’t necessarily focused on individuals in society, and their place and health in society?

Heather Cox Richardson:

Well, I keep coming back to the fact that this particular court and the current day Republican party, which is not a conservative party, it has become a group of radical extremists, which was not the Republican party’s history. So that’s just a distinction I want to make. But that they are focused constantly on the concept of throwing all decisions back to the states, at least on the surface level. And that is of course exactly what the enslavers wanted to do before the Civil War. They literally said, on the floor of the Senate, James Henry Hammond in 1858 said we don’t care if the entire country wants to do something. They can’t because the Constitution says only the states can do anything. So if you want roads across the Cumberland Gap, or the harbors cleared out, or regulations of enslavement, you are out of luck because everything happens in the states. And that’s why they wanted everything to happen in the states is it’s because it’s very easy to buy up a state legislature or to ham in voting in such a way in the states that you get the result that you want.

And so when you look at the attempt of the modern day Republican party from at least 1960 on, with Goldwater’s conscience of a conservative, that effort to push everything away from the federal government, which is regulating business and protecting a basic social safety net and advancing civil rights and promoting infrastructure, their attempt to get away from that and throw everything back to the states is an attempt to make sure that there is a society which a very few people can control.

So you have that, but then to turn around just as the enslavers did in the 1850s and say, well, everything has to be in the states. Oh, except the things we want. And those things we want, we will root in some false sense of the Constitution and say, oh, look, this is protected by the Constitution, the right to bear arms anywhere. But things we don’t like is not protected by the Constitution. And that echo of the 1850s and the ideology of the enslavers in the 1850s with their hierarchical society, I think that reality, which has descended on us in 2022 is even more shocking to me than the overturning of Roe v. Wade.

Joanne Freeman:

And I wanted to go right along those lines and simply add the fact that that strategy of the slaveholders wanting to throw everything back to the states, because they could assume, again, on a state level, there could be more control, they would have a much greater ability to make things happen the way that they wanted them to happen. And this is being said by people. The south had a far outsized power in the national government for many decades before this point.

But that strategy, the strategy of throwing things back to the states, and the strategy of being willing to preach, if not deploy violence, those are strategies that you use when you know that the demographics on a national level are against you. That’s what you do when you know essentially that national democratic processes, that national elections, a national legislature might not go your way. And if you are, for example, a slave holder in the 1850s, or representing slave holders in the 1850s, far safer and far better to make everything local than to risk what might happen on a national level.

So, absolutely what you see in the 1850s is the strategy of trying to push things to a more controllable stage, joined with the ability and increasing willingness to talk about violence as a way to impose will.

Heather Cox Richardson:

So here’s a question though. I mean, in both cases, what we’re seeing is minority rule. I mean, we just can’t say anything else. And I think really what we have heard in the last two days, because yesterday was the fifth hearing of the House Select Committee to investigate the January 6th attack on the US Capitol. And it was very, very clear that not only then President Donald Trump and some of his lackeys wanted to destroy democracy, that a number of Congress people were willing to go with that. I mean, it was pretty clear that they were very aware that Democrat Joe Biden had won the popular vote by about 7 million votes, and he had won handily in the electoral college. And they didn’t care. They were willing to overturn it, which, I was out kayaking last night and I thought, I always try and be so careful about the way I talk about people’s motives and attributing things to them, but I don’t think you can any longer look at the Republican party and say they believe in democracy. And that’s bonkers.

Joanne Freeman:

That’s a shocking thing.

Heather Cox Richardson:

That’s bonkers.

Joanne Freeman:

I was going to say, that’s shocking to be able to say that about the other major “party”, because we could talk about that word too, in American history and in the United States now. We don’t necessarily have to talk about the hearings now, and we might do that in another conversation, but certainly that’s one of the clear things that comes out of those hearings is just the repeated, consistent, creative ways in which a small group of people were trying to get past, push over, overrule, in one way or another get past democratic processes again, and again, and again, and again.

So everything that we see in that effort, by everyone that we see involved in it, is explicitly anti-democratic. People come forward and say, “That’s not legal. That’s not part of our constitutional process.” And that’s dismissed. So yeah, democracy, we can come back to this, but the question of what democracy is and the different rights that people have in a democratic mode of governance, that’s a question at play here.

Heather Cox Richardson:

But this absolutely demands the next question. And that is that how did a majority of Americans in either period, but especially now, permit a radical minority to take over the machinery of our government? Were we just asleep at the wheel? What do you think?

Joanne Freeman:

That’s a really interesting question. I mean, looking back at the 1850s in a general kind of a way, what you see is, well, I don’t want to say asleep at the wheel, but you see a growing awareness in the years leading up to the Civil War on a national level among the public, about the degree to which what had been perceived as polarization was actually more than that. So polarization sounds like opinions that are different and clashing. Beyond polarization, you have people willing to cross lines that shouldn’t be crossed. And certainly in the research that I did on Congress and the response to what was going on in Congress, it’s the late 1850s, where Americans are beginning to perceive that people on the side that they don’t like appear to be willing to actually go places they don’t want them to go, as opposed to spouting rhetoric and talking to their constituents in a way that people have been able to dismiss as mere politics.

Heather Cox Richardson:

But in the 1850s, and I think in the present, it was one-sided. I mean, the people really pushing the envelope in the 1850s were the enslavers, were the Southern Democrats who were dominating the south for sure. And through that, they dominated the federal government. But they didn’t have the numbers. And certainly the Whigs weren’t causing trouble.

Joanne Freeman:

No, no, no. And I’m not even necessarily talking about trouble, but one of the things that certainly caused a big response in those last years before the Civil War was the Republican party. So the south is pushing envelopes and crossing lines, the Republican party is stepping forward and saying we are a Northern anti-slavery party. They’re not crossing lines about legality or society, but by there being present, that certainly forced the issue.

Heather Cox Richardson:

Well, it forced the issue because they finally stood up and said, “No, you guys are breaking the Constitution and you’re breaking the laws.” And that was interpreted as how dare you. But it’s a really dramatic moment after your guy, what’s his name, beats up Charles Sumner on the floor of the Senate.

Joanne Freeman:

My guy. Don’t give me Preston Brooks.

Heather Cox Richardson:

Preston Brooks.

Joanne Freeman:

He’s not my guy.

Heather Cox Richardson:

He beats up Sumner on the floor of the Senate. And it was a really big moment when Anson Burlingame, who was a member of the House of Representatives from Massachusetts, stands up in the house and he says, “Cut it out. We will fight you.” It was the first time somebody said “Yeah, we’re not going to give anymore ground.” We were actually willing to fight. And everybody’s like, “He said he’d fight.”

Joanne Freeman:

Right. The Republican party advertised itself as the party that was going to fight the slave power.

Heather Cox Richardson:

Well, after years of the slave power doing whatever the hell he wanted.

Joanne Freeman:

Right, which is why the Republican party among other things rose so quickly, was it tapped into that desire. Finally, there is a north that is willing to fight. And you can see the impact of that in response to the caning of Sumner. You have throughout the north, meetings that were known as “indignation meetings”, which I love.

Heather Cox Richardson:

The beat up Sumner meetings. Sorry.

Joanne Freeman:

Well, no, they were indignation at him being beaten in the north. They were, they were people getting together to be indignant about what happened, but they were meetings grounded on the emotional response to what had just happened in Congress.

Heather Cox Richardson:

So the reason that I think it’s important to think about how this happened, and I think actually the rise of the Southern Democrats in the 1850s was in part because Northerners were looking a different direction, in part because they knew they were a majority, they were comfortable with where the future was going, and in part, because they were polite. They didn’t want to say you guys are it. They didn’t want to fight back. They wanted to say, “We’ll just get along.”

Joanne Freeman:

Let me ask you along those lines, because I would say absolutely, part of it is because they were going to be polite. But I would say even more than that, and I think this is something that you see today, they also were throughout, between 1830 and 1860, they were the people who were absolutely loyal to laws and procedures, to processes and procedures, to the way things were supposed to operate. So Southerners, particularly Southern slaveholders would violate laws left and right, or procedures or processes in Congress. And they always, in a sense relied on Northerners to be the people who said, “Well, no, no, let’s stick with the rules.”

And there was that kind of a balanced imbalance in the way that Congress worked. And in a sense, we’re in a similar moment today where we have one party that is consistently making up its own rules, sort of violating precedence in Congress, and they’re precedents that are important because Congress is about interaction and relating between people. So those kinds of norms and precedents matter. There’s one side that’s just violating them. And there’s another side, the Democrats are sort of being seen as the guardians, like, “Oh, well, we are sticking with procedures.” And I’m not arguing that Democrats should say, “Well, the heck with procedures and norms. Let’s go in and fight the same way.” But that’s the imbalance that we’re looking at right now.

Heather Cox Richardson:

Well, the procedures and norms really matter because if you lose them, you lose the whole game. Then you’ve just got chaos. And that dictates the rise of a strong man, almost always. So that’s one of the reasons I think you and I are both very into procedures is to prevent that.

But I pushed you on that a little bit because it has been a surprise to me for a while that there hasn’t been a bigger American pushback against the extremes of the current day Republican party. And it’s interesting to me as a historian that these hearings, and I know you don’t want to belabor the hearings, but these hearings are exposing so clearly the attempt to destroy our democracy. I mean, they’re only calling Republican witnesses with one exception. They’re laying out a very clear story. They have the documents, they’ve got the receipts. And it’s just every time you think you know everything and you can’t possibly learn anything new, your jaw drops and you think, oh my God, I knew it was bad. I didn’t know it was this bad.

That is coming at the exact same time, really quite by accident as the Supreme Court, which has been packed by that same president who was willing to overthrow our democracy, to put forward these decisions that are not only radical in terms of our constitutional system, but also are seemingly pushing a theocracy. So for example, we didn’t mention the decision about state monies and religious schools coming out of Maine. I don’t even know how many weeks ago now, but very recently.

Joanne Freeman:

Not even that many, yeah.

Heather Cox Richardson:

Yeah. In which the Supreme Court decided that the state could not discriminate against religious schools when it put tax money into educating children. And as the dissent said, that just not only tore down the wall between church and state, it actually suggested that not funding religious schools was going to be unconstitutional. And I’m wondering if we are finally at an 1850s moment where ordinary Americans who just weren’t paying attention, the same way people weren’t paying attention in the 1850s, go “Now, hang on just a minute here.”

Joanne Freeman:

Let me add to that because I’m traveling on that same road with you. And I think something that joins the string of Supreme Court decisions and the hearings, and that I think is jarring people in a way they haven’t been jarred before is the way in which again, and again, and again, they’re showing how drastic, dramatic seemingly unthinkable change can happen. And I’ve talked many, many times about how I think that ideas about American exceptionalism have been blinding Americans to what’s happening right in front of them, particularly in recent years, when there has been dramatic, seemingly authoritarian politics going on around us, some things being overthrown, processes, procedures, norms, and greater than that, laws and standards. And that Americans, which this is longstanding, have a sense that the United States is special, meaning it’s different from other countries. And the things that happen to other countries won’t happen here. And that no matter what happens here will be okay in the end because we are the United States and it will all be okay.

And that’s a numbing kind of way of thinking about things. And if you believe that, and that can feel like patriotism and faith in the United States, that if you believe that’s a good thing to think. And if you believe that, you will have your eyes closed to the fact that the United States is not immune to dramatic, seemingly unimaginable change, that it is possible for things to happen that will change the United States in seemingly unthinkable ways. And you have to get past the idea that we’re exceptional, that they’re impossible.

And I think one of the things, and you’re right, almost coincidentally, the Supreme Court decisions and the hearings together, what they’re doing is showing the degree to which that kind of dramatic change, that kind of, oh, they actually almost really did overturn the election. Oh, look at these sort of fundamental things, religion, guns, and abortion can be acted on in a dramatic way. And there you are. Here we are in the moment, those things just happened, and now we have to grapple with the legacy of that.

I think that fact potentially, maybe will wake up some Americans to the fact that it’s way past the time to be sleeping. It’s way past the time to assume that, well, this is the phase we’re in and we’ll move into another phase and everything will be fine again. We’re far past that point in the river. We’re at a point where it’s important that everybody be awake and alert and really be deciding how they want to act in this moment, how they want to join with others who agree with them to find ways to organize and work towards instituting change that represents what they actually do believe the United States should be. This is a moment not to sleep, but to be really awake.

I was saying this morning during my webcast, I said to the people who were with me, okay, so today is a day when we’re going to be upset. And I’m going to grapple with our personal response to the constitutional, legal, political, and personal repercussions of what’s going on now. After today, we need to think about the long view and what we do to work together to push for change. We don’t despair at this moment, we acknowledge this is a sign of a larger thing that’s going on in American society. And people need to realize that and come together to discuss that as you do in a democracy, and figure out how to organize and protest and act as democracies allow.

Heather Cox Richardson:

I agree with that. I think it’s important to reiterate that while this is where I started, while this is a huge deal for American women and their partners, it is absolutely a signal that American democracy is not even just on the ropes, but is going down. And any study will tell you that when a society loses reproductive choice, that is a huge red flag for the rise of a strong man and the rise of democratic backsliding. And taken together with the other decisions that the Supreme Court has handed down, one of the things that jumps out to me is that the Supreme Court no longer represents the American people, nor does the Senate.

And we are increasingly at a place where we are being ruled by a minority. And it’s very difficult to see a way out of that peacefully without absolutely overwhelming engagement on the part of Americans, and a recognition that people pushing back are not some crazy leftist communists or whatever it was that Mo Brooks was calling them last night. But they’re people who really would like to be, as Abraham Lincoln said, exceedingly conservative, because they want to stand on the Declaration of Independence and the idea that we are in fact, all created equal and have a right to consent to the government under which we live. And that is not radicalism. That is fundamental conservatism.

Joanne Freeman:

That’s absolutely true. And I think we’re both on the same page here in which we’re saying now is a moment to recognize where we are headed, what this represents, the ways in which democracy is not just endangered, it’s slipping. And that’s a big part of what we have seen in this decision today. And that we need to act in defense of democracy, of the Constitution, of constitutional law, of the rule of law. None of those things, as you just put it, none of those things are radical. None of those things are leftist. Those are fundamentally American democratic things. They are the foundations of who we are as a nation and we need to understand that, accept that, decide what that means, and come together to defend them, to protest, to act in some way that makes it clear that we’re aware of what’s happening and we’re going to push back.

Heather Cox Richardson:

And in terms of things changing very quickly, it is worth pointing out that there are moments in our history, in the 1850s, for example, in the 1890s, in the 1920s, when it really looked like the curtain was closing on American democracy. And in each of those instances, the American people woke up and said, “No, we really care about these things.” So as dark as it looks right now, there is hope.

Joanne Freeman:

There is hope. So this is one other point I want to make too. It’s tempting, and I’ve been watching this sort of edge its way around the margins of the hearings. It’s tempting to look to individuals as heroes who will save us. And you can look at Chaney and say, “Look at her, standing up against her party. That’s heroic.” Or “Look at these people testifying.” Although I actually will say that Shaye Moss, Ruby Freeman actually were heroes in standing up and doing what they did.

But my larger point here is it’s tempting to look for heroes in this moment to save us. We were doing the same thing with the Mueller report. And this is an operation that will only succeed with we. This is a we operation. The only way out of this is as an us. There is no single individual who can save us. And if we look towards that, we disempower ourselves. This is a moment when we need to come together and understand and discuss what we believe in, and put our feet into that discussion, put our feet into this action, and move and push for what we believe in.