An extraordinary phase of the 2024 race unfolding this week as Donald Trump finds himself stuck in a Manhattan courtroom and the focus of historic Supreme Court arguments, while President Biden sprints across a major battleground state. Senator Claire McCaskill and former White House Communications Director Jennifer Palmieri zero in on that stunning split screen and what it could mean for the presidential race. Plus, Claire and Jen talk to constitutional law professor Michele Goodwin about the chipping away of reproductive freedom and how that could also shape the election.
Further reading: Here is the map Jen mentioned, showing where reproductive rights stand, state by state.
Note: This is a rough transcript — please excuse any typos.
Jen Palmieri: Hello, welcome to “How to Win 2024.” It’s Thursday, April 25th. I’m Jen Palmieri and I’m here with my co-host Claire McCaskill, who’s a little froggy this morning. Hi, Claire. How you doing?
Claire McCaskill: Yeah, I will be able to cheer all the amazing receivers we’re going to draft tonight in the —
Jen Palmieri: Oh, my gosh.
Claire McCaskill: — draft for my man, Patrick Mahomes. But maybe even as big as the NFL draft, we had the Rock and Roll Hall of Fame inductees this week and my heart beats fast, is nothing better than Cher. If you’ve never seen her in concert, I mean Cher is freaking’ amazing and she’s like, I think, she’s older than I am. I mean that’s old.
Jen Palmieri: Oh, she’s definitely older than you. Yeah, she’s way older than you. I’m psyched about that. Well, first of all, I’m psyched for the draft. As you know, I’m the Morning Joe NFL draft analyst and unfortunately, I cannot be in Detroit tonight because I had to pick between my loves. And I love Bruce Springsteen more than I love the NFL. So, in addition to the Rock and Roll Hall of Fame being announced, I went to The Bruce Springsteen Archives Center for American Music, American Music Honors.
Claire McCaskill: Cool.
Jen Palmieri: You know, like it was incredible and like, it’s kind of a small deal, man. It’s at Monmouth university. There’s like maybe 400 people in the auditorium. John Mellencamp did this amazing acoustic version of “Jack & Diane” and just like stopped in the middle of it and let us all sing. So, lot of music.
Claire McCaskill: We got to stop on music and get to the bread and butter.
Jen Palmieri: Well, because there’s a lot happening.
Claire McCaskill: There’s a lot, there’s a lot.
Jen Palmieri: Which is why you can’t speak. So, this week the contrast comes into stark relief. We had Biden is out in the hustings in Florida last week. It was Pennsylvania this week. It’s Florida and Virginia and Trump is in the Manhattan courtroom. So, Claire and I want to drill down on that contrast and how to use it effectively in a campaign.
Claire McCaskill: And we’re going to catch up with a law professor, Michele Goodwin. She’s the author of “Policing the Womb.” And she’s really a foremost expert on how to interpret the law when it comes to women’s reproductive rights. We’ll look at the state by state bans and what’s at stake for 2024 as well as what the Supreme Court is pondering right now on two very important abortion-related cases.
Jen Palmieri: And Arizona took some action on abortion this week too. We’ll talk about that. But first the strategy session. So, right now SCOTUS is hearing the Trump’s immunity appeal arguments. This is your deal, Claire, former prosecutor, what do you make of the arguments thus far? Liz Cheney had not been in the NYT this week, saying that they should need to decide this swiftly, get the Jan 6 trial done before the election, et cetera.
Claire McCaskill: Well, the interesting thing about this is first of all, Sotomayor immediately went after the biggest weakness in the case. And that is if a president orders the military to assassinate one of his political opponents, clearly that’s an official act because he’s ordering the military as President of the United States or she because this would apply to all presidents and we will have a woman someday.
Jen Palmieri: Yes, we will.
Claire McCaskill: So, she immediately went for that weakness. But really the importance of this case and there is now a lot of pressure around this issue because I think Liz Cheney has emphasized it, most of the legal minds that the Supreme Court reads about in every publication have said, this is all about timing. So, what I’m looking for is not whether or not the Supreme Court is going to say the president can murder his opponents through the military. I don’t think they will decide that.
What I’m worried about is that they will send the case back to the trial court to determine what, if any of the acts that the president is accused of was in fact part of his official duties and what was not because that’s a factual determination. If they do that, then Trump has a chance to avoid responsibility and legal accountability for what he did around his failure to allow power to transfer peacefully in this country.
Because now if he doesn’t win, you know, he’s still in jeopardy in terms of these federal cases. If he wins, they all go away. So, it’s the timing here that’s important. And I thought Liz Cheney did a great job of highlighting that and what she did this week.
Jen Palmieri: And so it’s Thursday, we’re four days into the actual hush money trial. So, it does feel to me a little more unhinged than I might have anticipated or that it’s wearing on Trump more. What are your big takeaways from the week? And does it that way to you? Like this is really having an impact on him psychologically.
Claire McCaskill: He doesn’t look good, you know. I mean Biden had a embarrassing gaffe this week, but Trump looks bad every day and we’re seeing him every day. He looks haggard. He looks tired. He looks angry. But keep in mind that he is just trying to play the victim. I’ve never before seen a criminal defendant —
Jen Palmieri: Yeah.
Claire McCaskill: — that so many people view as a victim. Typically, it’s the victim of the crime who is seen as the victim, not the defendant who committed the crime.
Jen Palmieri: Yeah.
Claire McCaskill: But they’ve done a really good job. I thought the opening statements were very good on the part of the prosecution. They’ve promised a lot. Now, they’ve got to deliver on that evidence. But my biggest takeaway was that that lawyers for Trump have already damaged their credibility by saying he was a family man in their opening statement.
Jen Palmieri: Laugh out loud, funny. I mean —
Claire McCaskill: Every person on that jury is going what? No, no, he’s not a family man. He changes wives. He’s a serial adulterer. He is not somebody who’s ever emphasized his family. His wife is not even there. I mean who does she believe?
Jen Palmieri: Yeah.
Claire McCaskill: I mean it looks like she doesn’t believe him because she’s not even there in court with him. So far, I think the trial is going very well for the prosecution. We’ll see as time goes on. It’s quite a contrast though. Did you notice that Trump complains about having to be in court and how he should be campaigning? But then, he canceled his rally last weekend. And guess why he canceled it, Jen?
Jen Palmieri: This is Claire’s favorite story of the week because he was worried about his hair, right?
Claire McCaskill: It was raining. He can’t go out in this starched bouffant if it’s raining. If it’s wind or if it’s raining, he is off the field. I am sorry. He is on the injured reserve list, if there’s any problem with his hair.
Jen Palmieri: You have the receipts to back it up. You know, people are like, oh, you know, trial doesn’t matter to his supporters, but there’s evidence that it does. There’s a CONOPI (ph) poll this week, nearly 7 out of 10 voters say they’re following the news regarding the trial either very closely or somewhat closely, 69 percent of them. And in the same poll, 6 in 10 voters think that the charges of falsifying business records, including a hush money payment to an adult film actress are either very serious or somewhat serious.
And 46 percent of voters believe former President Trump did something illegal. All right and all three of those stats, you were talking about some measure of Trump supporters, paying attention, thinking that the charges are serious. And even some of them thinking that he did something illegal.
So, I just don’t believe that it doesn’t have an impact on public opinion and on the race. And plus, all the David Pecker stuff was bonkers too and just understanding how that works and how the whole catch and kill scheme works with “The National Enquirer” and how corrupt it is. I think that was pretty eye opening too.
Claire McCaskill: Listen, you know, there is a big contrast and think about this for a minute. Let’s just like put everything aside. It’s so much news about Trump, so much scandal. When I was a younger politician and running for office, if somebody would have said to me, you know, the candidate for president of one of the major parties was named in an Arizona criminal charge last night as an unindicted co-conspirator.
I would say, well, that’s over. You can’t be named as an unindicted co-conspirator, if you’re running for president and it’s just like nobody is even blinking. Well, yeah, he’s another unindicted co-conspirator. This is like the second or third time. He’s an unindicted co-conspirator and he’s in court for a crime. I mean it is amazing to me how solid the cult is.
Jen Palmieri: I know, I know.
Claire McCaskill: They are so in the tank.
Jen Palmieri: I know.
Claire McCaskill: They can’t see daylight. They are so submerged in his BS. It is unbelievable.
Jen Palmieri: But the other thing that happened this week is NBC News poll that has Biden poll rating up 5 points from January. Five points is a lot. It’s 42 percent, that’s low relative to other presidents in general but given other like popularity of other world leaders right now, that’s pretty high. So, is that a —
Claire McCaskill: Thread?
Jen Palmieri: Well, yeah, and it’s not just NBC, like RealClearPolitics average has them that way too, going up from January and February. Is it State of the Union? Is it the contrast of Biden out in the trail doing his job, being president while Trump is sitting in a courtroom? Like maybe a little bit of all those things, but I will take it.
Claire McCaskill: Yeah and obviously Biden was in Florida, really hammering on the issue that we think is, and we’ve got to be honest about this —
Jen Palmieri: Yeah.
Claire McCaskill: — Jen, there’s a real enthusiasm problem with younger voters. Younger voters are not excited about voting. I’m not saying they’re not with Biden. I think they are. I think they would vote —
Jen Palmieri: Yeah.
Claire McCaskill: — for Biden if they go vote.
Jen Palmieri: Yeah.
Claire McCaskill: But the one thing we have that is really important is this abortion issue. And he did a great job in Florida this week saying, hey, I’m fighting here. I’m fighting —
Jen Palmieri: Yeah.
Claire McCaskill: — for the women of this state and the men who support them, that you should have control over the most personal and private and painful decision of your life.
Jen Palmieri: And when Biden was in Florida this week, he had this to say about Trump.
(BEGIN AUDIO CLIP)
Joe Biden: For 50 years, the court ruled that there was a fundamental constitutional right to privacy. But two years ago, that was taken away. Let’s be real clear, there’s one person responsible for this nightmare and he’s acknowledging, he brags about it, Donald Trump.
(END AUDIO CLIP)
Jen Palmieri: I think, you know, if I were in the room, this is what you would have him doing. You know, there’s also some like a psychological warfare to some of this stuff too that I think is smart. It’s like, I’m going to go to Pennsylvania last week. I’m going to stay there for three days. I’m going to have it really take effect. I’m going go to Florida, your home. You can’t be there because you’re in a courtroom in New York. And I’m going to talk about the issue that you are most vulnerable on and that’s abortion. And you know, it feels like it’s having an impact.
Claire McCaskill: Bottom line is I think if I were in the room, I think they’re doing the right thing.
Jen Palmieri: Yeah.
Claire McCaskill: Okay, speaking of another major abortion argument before the high court this week was about whether the Biden administration can penalize hospitals that failed to provide emergency. I’m talking about emergency abortion care.
Jen Palmieri: Oh my gosh.
Claire McCaskill: I’m not talking about, hey, I want to have an abortion because I don’t want to have a child. I’m talking about somebody whose health is in danger, that it qualifies as a medical emergency.
Jen Palmieri: And a perfect segue to our next guest. When we come back, Michele Goodwin joins us. She’s a constitutional law and global health policy professor at Georgetown Law and the author of the book, “Policing The Womb: Invisible Women and the Criminalization of Motherhood”, my God. My God is not part of the book title. Back with Michele Goodwin in a moment.
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Claire McCaskill: Welcome back. I will continue to apologize for my voice. I promise it will be better next week. As we mentioned before, the break, the Supreme Court heard arguments this week over a case that sets a very strict Idaho abortion ban against a federal law that requires that hospitals in order to receive federal money, they must provide emergency care. This is the second abortion-related case.
The justices have heard this term after the March case where they listen to arguments around the FDA’s approval of the abortion pill, Mifepristone. It’s interesting because the Supreme Court, Jen, said they wanted the states to decide. And now we’ve been in front of the Supreme Court twice since Dobbs with the Supreme Court being forced to make even more decisions around women’s freedom.
Jen Palmieri: And after a Roe was reversed by the Supreme Court in 2022, there has been this nonstop, consistent effort to chip away every reproductive rights from every corner. So, we wanted to talk to someone who can break down how the law is being used to tamp down women’s basic health choices and how pivotal the issue will be in November.
Claire McCaskill: Professor Michele Goodwin is the perfect person to help us with that. She is the constitutional law and global health policy professor at Georgetown Law School. An acclaimed bioethicist and is the author of the award-winning book, “Policing The Womb: Invisible Women and the Criminalization of Motherhood.” Professor Goodwin, thank you so much for joining us.
Michele Goodwin: It’s my pleasure to be with you.
Jen Palmieri: Before we get to the Supreme Court, we want to look at where the states are. So, we have a map, talk to us about where it, and we will have a link to this map in the show notes, about what it currently looks like to live in any of the states in the south, if you need reproductive care.
Michele Goodwin: So if we were to do a Venn diagram, we would see ourselves trapped in the period of American slavery. We’d see ourselves tethered to a system where there were women who were forced into pregnancies because it provided for the wealth of the people that kept them enslaved. And we would see that there were federal laws that protected those individuals who forced those women into pregnancy. Because if those women tried to escape, they could be returned.
And if we look at the narratives between then and now we can see a new Jane Crow where there is so much that looks like the old that is now trapped in the new. And I should say for anybody who might say, well, no, that’s not exactly the same. That’s not what was happening. Thomas Jefferson famously wrote that he preferred to have women on his plantation because they turned to profit every year or two, rather than men.
He wasn’t talking about women are better cotton pickers. Women are better tobacco pickers. Instead what he was explicitly saying is that he could use, exploit, coerced their reproductive capacities to make profit for him to exploit his own interest. And we see much of the same taking shape these days. Since Dobbs, we have seen a 10-year-old girl having to flee one state to get to another in order to terminate a pregnancy after rape.
We’ve seen children now going into elementary and middle schools as mothers. We’ve seen judges say that 17-year-old girls lack the capacity to have an abortion, that somehow they have the maturity to become a mother when they can’t take Mifepristone to terminate a pregnancy. It is just a travesty —
Jen Palmieri: Oh my God.
Michele Goodwin: — and a lack, not only of justice, but fundamental human rights.
Claire McCaskill: It’s brutal. Dr. Goodwin, would you do our listeners a favor? And would you compare and contrast, as only a law professor can, the difference between abortion bans, which are very common across the country and personhood statutes, which is certainly the law in my state and I know in many other states. How do those two compare and why is personhood even more dangerous than an abortion ban?
Michele Goodwin: That’s a great question. So, these abortion bans came into effect after the 2022 Dobbs’ decision. There were states that were already teasing these up and many had gestational limitations. What states were trying to do when Roe was still the law of the land was to create what would be trigger laws, such that when Roe would fall and they were hoping that it would, that those laws would then go into effect.
Most of those laws had not gone into effect because a district court and appellate court judges said, well, Roe and Planned Parenthood v. Casey still a law of the land. These laws that you’ve just created are struck down. But the question that you asked about these personhood measures is really important because they’re what you have are anti-abortion movement leaders seeking to establish constitutional rights, legal rights, and fetuses and embryos even.
So, we had recently the Alabama Supreme Court ruling that an embryo rather cryopreserved in refrigeration or in a uterus has personhood. And that any destruction of an embryo could be wrongful death. So, if you are trying to become pregnant and you’re using assisted reproductive technologies, 65 percent of the time, there’s going to be embryo demise and even fetal demise.
And that could mean criminal and civil punishment perhaps against the couples who are actually trying to become pregnant. The bottom line of it is that you have a kind of barbarism and lunacy now parading as American law and science, which it is not. You see a complete devoid of an understanding of health and science and basic biology. It’d make you wonder if any of these people studied biology, basic biology in middle school and high school.
Jen Palmieri: But they have an ultimate goal here, right? This effort started a long time ago. What’s that ultimate goal of what they are pursuing now and who are some of these people that are doing it?
Michele Goodwin: So, the ultimate goal is truly one of power. It’s something that I’ve studied, is a question that I’ve asked over and over again in my own scholarship, as I’ve written about this. So, let’s distinguish a few things because there is a rhetoric that this has always been part of a Republican campaign, and that is not true. It is true that Republicans now —
Jen Palmieri: Right.
Michele Goodwin: — have leaned into this, but Roe v. Wade was a 7 to 2 decision. Five of those seven justices were Republican appointed, including Justice Blackmun, who wrote the opinion in Roe v. Wade. He was put on the court by Richard Nixon. Consistently, there had been Republicans, including George H.W. Bush, who spearheaded Title X through Congress, making sure that reproductive health care could be provided for the poorest of Americans. He said that this was basic fundamental public health care. His father, Prescott Bush was the treasurer of Planned Parenthood.
Jen Palmieri: Yeah.
Michele Goodwin: And I think that’s important to just establish as a baseline, which tells us how extreme it is what’s taking shape today and the way in which there are politicians that have been co-opted into this fundamentalist, extremely hardcore, hardcore, hardcore conservative movement that had never been able to elevate itself in law or in the courts.
One of the things we don’t talk about is how violent this movement has been. And then if it were any other group, they would be on national watchlists. They would not be able to operate in the United States. They would be gone. There have been over 50 bombings of clinics that provide abortions in the United States since the time of Roe v. Wade.
Roe v. Wade decriminalized abortion. It made it legal. Justice Blackmun said that it was important for the autonomy, the dignity, the mental health, the physical health of women that they have this health care option for themselves. And since that time, bombings, arson, there are doctors who have been murdered in their churches, murdered at their homes.
Jen Palmieri: Yeah.
Michele Goodwin: I have friends who are obstetricians and gynecologists, who fear being on shows like this, are being recorded on video because they have children. And they fear, reasonably so, that someone could come to their home and kill their children.
And so before going on, I just thought it was important to actually place to the readers that this has not been just a matter of political difference. This has been a movement that has been steeped in violence, the threats of violence. I know so many people who even do the work that I do, we receive threats all the time, so.
Jen Palmieri: But you said it’s about power, if I could just interrupt for a second.
Michele Goodwin: Yes.
Jen Palmieri: I want to ask you, you said it’s about power. I mean I think about this a lot. We’re getting beyond politics now, but I think it’s important to get to the root of this. Like is it that women have had too much power and this is the backlash against it? It’s about trying to control women. Is that what that’s happening here?
Michele Goodwin: That’s a part of it. So, that’s such a great question. So, let’s dive into what power has looked like in the United States, because it can be obscured by the fact that women have been able to successfully run for Congress and be in the Senate and be in the house. That there are women who are CEOs, there are women who are taking charge of their lives like never before.
And even around the world, not yet in the United States being president, but women in other countries being president. So, that can obscure the fact that women are still on the pathway towards full citizenship in the United States. Now that would seem strange to people and say, of course, women have citizenship. Let’s be clear that Roe v. Wade came 100 years after the Supreme Court said that women could not become lawyers.
There is a case, Bradwell v. Illinois, where women said, okay, slavery is over. There’s a 14th Amendment, I want to become a lawyer. My husband is a lawyer, I’m qualified. And the Supreme Court said, no. What you women can do is take care of your husbands and your children. You may not become lawyers. In the same period, the Supreme Court said, no, women, you may not vote. Now, even though folks would say, well, that was a long time ago. Things are truly different.
Now, let’s be clear that when Mississippi brought this case before the United States Supreme Court, the Dobbs’ decision, at the lower court Judge Carlton Reeves made clear what Mississippi’s history has been. Mississippi has denied women from serving on juries. In Mississippi, women couldn’t get credit cards in their own name, couldn’t open up checking accounts in their own names.
And we could go through a laundry list of things, including voter suppression. The Supreme Court said, well, if women don’t like this, just go vote. Let’s remember that when black women tried to go vote in Mississippi last November, it’s a state where ballots were not available to black communities. And they ran out and there were many black women not able to participate in the election process, much like over a hundred years ago.
I mean this is happening in real time. So part of it, yes, is a concern about women and women seizing power, and being able to be more authoritative in their lives. But it’s also about holding onto a power that intergenerationally in the United States has been given to men and that men have taken for themselves. And it has only been in the case where women have fought hard that in fact —
Jen Palmieri: Very hard.
Michele Goodwin: Very hard and even criminally punished for it, where women have been able to scrape and scrape and get pieces of power in the United States.
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Jen Palmieri: Professor Michele Goodwin, please stay with us. We’ll take a quick pause here. But when we’re back, we want to talk to you about the Supreme Court’s role in invalidating women’s health care rights. We’ll be right back.
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Claire McCaskill: Welcome back. We’ve been speaking with Michele Goodwin. She’s a constitutional law and global health policy professor at Georgetown Law School and the author of the award-winning book, “Policing The Womb: Invisible Women and the Criminalization of Motherhood.”
Let’s zoom out now and let’s look a little bit at what the Supreme Court is up to. So, let’s talk first about the emergency abortion care case that the justices heard arguments about this week. What’s your take on the case? And what is your sense after listening to the arguments about where the court will come down on this important battle between states rights and federal authority to withhold funds?
Michele Goodwin: It’s troubling that the Supreme Court has weighed into this decision in the way in which it has. The Emergency Medical Treatment & Labor Act was one that was passed by Congress in order to protect Americans who are an emergency crisis, such that they would be able to get the care that they need and not be turned away. It’s worth noting that explicit within the title of the act is the recognition of women and reproductive health care, because it says, and labor act.
And for a Supreme Court that is claimed to play close attention to text, we have in both the text and the legislative history, the fact that members of Congress were deeply concerned about patient dumping. And that is women not getting the life saving, life stabilizing care that they needed, if they presented at hospitals and didn’t have insurance or even if they did, and hospitals wanted to turn them away.
In the wake of the Dobbs’ decision, the president, President Joe Biden said, well, EMTALA still applies. This important federal law still applies. And so people who need abortion care in order to stabilize their health in order to save their health, save their lives, still have access to abortion, given this federal law. Now it’s just a basic 101 in civics.
Federal law preempts state law. That means federal law trumps any state laws. And we could talk about in this show or another show why that is, but now the state of Idaho challenged whether that had any relevance in its state, given its abortion ban. Their claim was that federal law couldn’t intervene on their abortion ban.
The Supreme Court has decided to take this up and perhaps not shockingly to some conservatives on the court seem to be leaning into this idea that even though there is federalism and federal preemption, that it may not apply as apply to women who may die in needing abortion care services. You know, again, this exposes whether there is a care for the fundamental personhood of women.
Claire McCaskill: You know, I got to just put a piece in here because we don’t have law professors on very often. And even though I have a little PTSD when it comes to law professors, thinking back to my law school experience, I think it’s really important to talk about how hypocritical the members of the court have been around textualism, you know.
As somebody who had to vote on the confirmation of Supreme Court Justices, I watched righteous indignations spew from these folks about how you cannot legislate from the bench, about how we have to respect the language of the constitution and the language, the actual text of law. And that courts have run amok because they’re busy interpreting and legislating and how much respect they had for precedent.
Well, all of those things have gone up in flames under the Roberts’ court. Can you speak a moment about how hypocritical these folks are about the original language? You touched on it with this law, but it’s happened over and over again with these guys.
Michele Goodwin: That’s true. And it is deeply frustrating and what it is consistent with as Americans having a very low view of the court. They have the lowest favorability rating, the Supreme Court, since polling has ever taken place. And I think this, um, cynicism that we can all see in the court, you can see it in just looking at Dobbs.
Well, let’s put Dobbs and Bruen together. So, the day before the Dobbs decision, the Supreme Court issued a ruling in the Bruen case. The Bruen case is one about a New York gun control law that was more than a century old, controlling guns in that state for public health and safety. Here’s a court that says it cares about originalism well and cares about things that are old.
We’d say over a century, that’s pretty old, but in the Bruen decision, the court said, well, we don’t really care about old anymore. And here’s, what’s interesting. So, you have Justice Clarence Thomas in the Bruen decision saying, we need a prologue here. It’s very rare that you see in a Supreme Court decision prologue.
And he spends five paragraphs talking about how important to black male bodily autonomy it is to have a gun. And that black male’s bodily autonomy is placed in jeopardy, if they don’t have guns and that we all in the Supreme Court should care about black male bodily autonomy. He writes the majority opinion in striking down this New York gun control law. The next day is the Dobbs’ decision where the Supreme Court doesn’t say anything about bodily autonomy whatsoever. Justice Thomas includes a concurring opinion where bodily autonomy, those two words, you will never see.
The other thing that you won’t see is that the day before Justice Thomas cares about black men. One day later, he has nothing to say about black women in a case that comes out of Mississippi, a case that was notorious for the lynching of black women, for the enslavement of black women, for denying black women the right to vote, denying black women access to schools in education, denying black women the right to be able to contract, denying black women the right to be able to go into parks and swim in pools.
You can’t make it up. And so no reference at all to their lives. And even more on your question, precedent goes out the window and rest of time through our Supreme Court jurisprudence precedent matters. And I will say that there are times in which precedent needs to be scrutinized. We would never have gotten to Brown v. Board of Education, if in fact we held onto Plessy. But that said, this was a court that was cherry picking through history.
Claire McCaskill: Unbelievable.
Jen Palmieri: Yeah, unbelievable. I’m not the lawyer, I’m the hack, so I’m going to take us back to 2024. Dr. Goodwin, given the options President Biden has before him in terms of what he can do administratively and what he can advocate Congress do, if he wins reelection, what should he be advocating for in terms of legislation? And is there more that he could be doing administratively to try to protect women’s health?
Michele Goodwin: Well, there are a number of arguments that are being made explicitly on that. For example, there’s the Women’s Health Protection Act. It has strong support in the Senate and Congress in the House and needs to get over the line that would essentially codify Roe. But there are many who say that doesn’t even go far enough, that should be a baseline and that Roe was a baseline itself.
There’s also the Equal Rights Amendment and strange that here, we are in 2024, when so many other countries around the world have instantiated equal rights for women in their constitution. And the ratification, when you say that, you know, the ERA has been ratified now, there are 38 states. When Donald Trump was in office, he ordered through a letter to the archivist not to file the ERA. And so the archivist didn’t.
There are those that say that look, even if it might be challenged, Joe Biden should, you know, state to the archivist, now go file this, so that the ERA is in effect. And if there are those who are going to challenge it, let them then go challenge this. There are other concerns that have come up. Perhaps there are spaces within federal lands where abortion clinics could be established. And so that individuals who are within states, where there are federal lands could go and terminate pregnancies or get the reproductive healthcare in those spaces that they could.
What is clear is that the president and the vice president have been articulating even more the importance of respecting reproductive autonomy and freedom. And the backdrop of it, there are Republicans that are supporting this too, even if privately. So, maybe these are Republicans who are voting at home, not necessarily writing op-eds about this.
But I say that in relation to the ballot initiatives that have been successful time and time again, whether in red states or in blue states. When abortion has been on the ballot, it’s been a winning issue.
Claire McCaskill: Well, it’s great to have somebody who knows so much more than we do on this podcast about a subject that both Jen and I care deeply about. And frankly, most Americans care deeply about. Thank you for your scholarship on this. Thank you for all your hard work around this issue. It is greatly appreciated.
Michele Goodwin, constitutional law professor and author of “Policing The Womb: Invisible Women and the Criminalization of Motherhood.” It’s been terrific to get your perspective. We thank you very much.
Michele Goodwin: Thank you very much —
Jen Palmieri: Thank you.
Michele Goodwin: — for inviting me on your show. It’s a pleasure to be with you.
Claire McCaskill: Before we wrap, we want to answer listener questions as they come up. And we thought this one from Ram (ph) in Kansas, which was worth noting. It’s not really a question, but it’s a comment that shows you what people are thinking out here in heartland (ph). One thing that seems to be missing is a call to President Bush to come out and show some backbone. He needs to come out like Liz Cheney against Trump. He’s been sitting in his Texas ranch saying nothing.
Also his brother, Jeb Bush is awfully quiet in Florida. For the sake of our history, democracy and standing in the world, George Bush needs to come out and openly ask people to vote for Biden to save democracy. Mitt Romney has said it, but not Bush. No one is asking these conservative Republicans to support the Biden agenda, but not supporting democracy, thanks Ram (ph).
Jen Palmieri: Yeah, I hear this. A couple of things about this. My understanding is one that President Bush does not believe it would help. That because of his unpopularity within the Republican party, it would just be like, see another established member Republican who’s not on the side of Trump, big deal. None of the established Republicans are on the side of Trump. I still think it would matter, you know.
It just helps. Like Vice President Pence is saying he won’t vote for him. It helps that a lot of the former cabinet members are saying that. There’s a difference between Democrats and Republicans, it’s always all dangerous to make generalizations, where I find Democrats might rally around issues more. And Republicans loyalty is really core to them. And there’s some party leaders, former party leaders that just won’t break that pledge. So, I don’t know what the combination of concerns is for President Bush but, you know, I think it would help.
Claire McCaskill: Well, I think if for every Republican that thinks it won’t help to speak out, they’ve got a lot of company. And to me, whether it helps or not, it’s the right thing to do.
Jen Palmieri: Yeah, yeah, it matters. Thanks so much for listening. If you have a question for us, you can send it to howtowinquestions@nbcuni.com or you can also leave us a voicemail at 646-974-4194. And we might answer it on the pod. And remember to subscribe to MSNBC’s How to Win newsletter to get weekly insights on this year’s key races sent straight to your inbox. Visit the link in our show notes to sign up.
Claire McCaskill: This show is produced by Vicki Vergolina. Janmaris Perez is our associate producer. With production support from Alisha Conley. Catherine Anderson and Bob Mallory are our audio engineers. Our head of audio production is Bryson Barnes. They have a hard work to do this week with my voice, right? Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC.
Jen Palmieri: Search for “How to Win 2024” wherever you get your podcast and follow the series.