Episode 32 - “Do you really understand Roe v. Wade?”
|thenorthstar||May 15, 2019|
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Transcript, Web links and Credits below.
I don’t know if you saw this, but over the past few days, the legislatures in Georgia and Alabama have both effectively voted to ban a woman’s right to choose—even in the cases of rape and incest. It’s a huge deal with so many major ramifications. Today I’m going to unpack and explain precisely what each state voted for, but what I really want to explain to you is how we got here and what can be done about it.
I have the philosophy that we can organize ourselves out of any problem we find ourselves in, but what I see is that our organization rarely matches our outrage.
Let’s dig in.
This is Shaun King and you are listening to (The Breakdown)!
Today’s episode is a serious one. Hell they’re all serious, but today I need to teach you something. And I hope if you’re listening and you’re Pro-Choice or Pro-Life, that you learn something—because what I often see in this country is that we quote laws and mention historic precedents without really even understanding them. So give me just a moment, before we begin talking about what’s happening in Georgia and Alabama to unpack one of the most important Supreme Court cases ever decided. I am speaking of Roe v. Wade. Let me break it down.
(Break it down DJ scratches)
In 1973, the United States Supreme Court, in their Roe v. Wade ruling, determined that the Due Process Clause of 14th Amendment gives people making decisions about their health a right to privacy—and that that right to privacy included women opting to have abortions. Now their decision was not open-ended. It gives states the option to offer some regulations when it pertains to issues of health—both for the woman and for the fetus. The decision also split their ruling about abortions into the three trimesters of their pregnancy. According to Roe v. Wade, in the first trimester, states cannot prohibit abortions. In the second trimester, states cannot prohibit them, but have power to regulate the procedure in very specific ways. Then in the third trimester, abortions can be prohibited and regulated entirely—except in life or death cases of the health of the mother. And then the justices did something very important. In their ruling they specifically stated that a woman’s right to choose was a fundamental human right and that states that challenged Roe v. Wade had to follow the letter of the case with “strict scrutiny”—which is the highest level of judicial review this nation offers.
Now that was 46 years ago. And if that version of Roe v. Wade still stood today, what Alabama & Georgia have just done—effectively making it a violent crime to have an abortion—those laws would be struck down immediately. It’d be easy.
But that’s the thing. Roe v. Wade has been challenged hundreds of times. And in 1992, one of those cases, Planned Parenthood v. Casey, made it all the way to the Supreme Court. And then in their decision, the Court struck down major parts of Roe v. Wade—including the entire trimester protections they detailed. It upheld a woman’s right to choose, but only in the case of a non-viable fetus—that is a fetus that could survive outside of the womb—which the justices stated in their decision likely began at around 23-24 weeks of pregnancy.
So we talk a lot about Roe v. Wade, but you can’t really understand it without discussing Planned Parenthood v. Casey. And since that case in 1992, the Supreme Court has had multiple other decisions, many of them 5-4 decisions, upholding some parts of Roe v. Wade and striking down others.
Which takes me all the way to the Obama administration. In February of 2016, Supreme Court Justice Antonin Scalia suddenly died and left a vacancy on the court. With 10 full months left in his presidency, President Obama nominated Merrick Garland to fill the vacancy. That power to nominate a Supreme Court justice is one of the most important privileges of the American presidency. And for 10 months, the Senate blocked the nomination. Not because Garland was liberal. He wasn’t. I didn’t even like him. He was moderate. That’s why Obama nominated him, because it exposed that what Republicans were doing had little to do with whether Obama’s choice was liberal or conservative, it had to do with two things.
They simply wanted to deny this choice to Obama. They made it clear they would oppose him at every turn soon after he was elected.
They knew whoever that justice would be, they would likely sway the court on Roe v. Wade.
Which brings me to my first major point of the day.
I have a hard point that I need to make for all of us. I have a book coming out next year where I basically take 250 pages to explain this point, but our problems and our solutions are all a direct result of either our strategic organizing failures or our strategic organizing successes.
We like to oversimplify our problems as good versus evil. And emotionally that feels good, and I’m not even saying it’s false, but I’d like you to consider victories and defeats as more tied to who is doing the best job organizing themselves.
Let me explain what I mean. Right now, all over the country, I see the outrage against the new legislation that passed in Georgia and Alabama—and the outrage is real and it’s fierce—but what I too often see is that our organization does not match our outrage. But with conservatives, their organization frequently outpaces their outrage.
Three years ago, when Republicans had the foresight to refuse to allow Obama to nominate a Supreme Court justice, they did so not just with Roe v. Wade in mind, but they did so knowing that states like Georgia and Alabama would pass laws like they’ve just done.
I lived in Georgia for nearly 20 years. In many ways, I see it as my home. And when I tell people that Republicans in Georgia out-organized Democrats they get pissed, because the truth is that the election, in so many ways, was stolen from Stacey Abrams. But do you know how it was stolen? It was stolen because the man she ran against was also the Secretary of State in charge of elections. He organized and won that role. And what he did with it was deeply unethical, but he was able to do what he did because he ran and won an election for Secretary of State. We should be dominating these Secretary of State elections in all 50 states, but we’re so focused on the Presidency that we lose local elections that really matter.
In Alabama, every single person who voted in the legislature to effectively ban abortion—even in the case of rape and incest, even if the fetus is unviable—every single person who voted for it was a white man. And guess what—they have the majority in the legislature. Virtually the same is true in Georgia.
In Alabama, if a 13-year-old girl was molested by her father, or by a violent stranger, and is pregnant, their law now states she has to have the baby.
And what I am saying to you is that these bills are now being rammed through because conservatives know that they now control not only the state legislature and the governorship, but the Presidency and the United States Supreme Court as well.
And we can tell ourselves in 100 different ways that people bullied and cheated their way into power everywhere. I am just here to tell you that we have to be more specific, and more strategic, and more organized with our goals and priorities.
Because I get the feeling that we think standing on the side of good is enough to win. And it isn’t. It just isn’t. You can be good and lose and lose and lose again—and that’s what we’re doing.
And I see it happening now in the United States Senate. Democrats actually lost seats in the Senate in 2018—and in states where they could gain seats—like Texas, Georgia, and even Montana. In these states, where a few Democrats are actually very, very popular, those Democrats are instead deciding not to run for Senate, but to run for President or not to run at all. And what that's going to mean is that even if Democrats can't beat Trump in 2020, which is possible, they also won't control the Senate—and Trump will have 4 more years of Supreme Court picks and 4 more years of cabinet picks. Because those things have to be approved by the Senate. And even if he loses, if Democrats don’t take control of the Senate, and they just have a Democratic House and Presidency, they’ll get next to nothing done.
I’ll close today with this thought. I don’t mean to demean some of the efforts that I see happening right now, like one effort advising women to host a sex strike, where they refuse to have sex until bills like this are reversed, or I see another group putting forth a huge amount of effort to get certain phrases trending on Twitter. But those efforts won’t change the legislature. They won’t. They may excite the base, and that’s needed sometimes, but we need more than that. We need plans and strategies to win local races, state races, and Senate seats.
And right now, I’m just not seeing enough of that.
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Produced by Willis Polk II
Additional Production by Ryan “Kno” Wisler
Additional Instrumentation by Christian “Idrys” Shannon, Lance "Lance Fury" Powlis, Markeith Black & Smok Tagous
Additional Engineering by Amond “AJ” Jackson for Salem Psalms Library
Additional Vocals by Garnett “Natti” Bush & Jason Coffey
Scratches by Kenny “DJ FlipFlop” Vanderberg