--:-- Kara Swisher: Hi, everyone. This is Pivot from New York Magazine and the Vox Media Podcast Network. I'm Kara Swisher. We're doing things a little differently today. Scott Galloway is recovering from minor surgery. You can all vote online on what you think that minor surgery is. We wish him well.
--:-- Kara Swisher: Today, we'll hear from three guests who will help us understand what's next for post-Roe America. We'll hear from former Supreme Court clerk, now a law professor at Yale University. Amy Kapchinski will also speak with activist Evan Greer about the fallout for tech and privacy. But first, we'll speak with New York Magazine senior correspondent Irin Carmon about the immediate impact of Dobbs v. Jackson.
--:-- Kara Swisher: All right, you've been reporting on the front lines of this and you're pregnant now. Tell us what that's been like for you.
--:-- Irin Carmon: Well, I am pregnant by choice and happily. Even so, I think being pregnant at a time where you're covering this encroachment on bodily autonomy by the state really drives it home. Whether you want to be pregnant or not, it is an intimate, life-changing, profound difference every single day of your life. It starts with pregnancy, it doesn't end with pregnancy. Your various cell levels are changing. The idea of the state coming in and imposing this on someone, either to be pregnant or to continue to be pregnant, to give birth, to parent, feels very personal to me. It's always felt real to me. This is my second pregnancy with what I hope will be my second child. But I think it also drives home what a violation it would be to have this imposed on you.
--:-- Kara Swisher: Right, exactly. I agree. I've been pregnant. You wrote a moving piece about the trauma of giving birth, of course, and the ratio of pregnancy in the Supreme Court's decision. Can you talk a little bit about that?
--:-- Irin Carmon: As I was reading the Alito draft—you can't believe what's sitting in your hands when you get it, and we got a final opinion that was essentially identical—he recites what the state of Mississippi found about fetal life. It's an argument in favor of the fetus's humanity to supersede the right of the pregnant person to make a decision about the future. In doing so, he says things like, "at six weeks, this happens. At eight weeks, that happens." Some of it is, frankly, pseudoscience. But nowhere in there does it talk about the experience of the person who is pregnant.
--:-- Irin Carmon: As I was reading this—I've had so many anti-abortion legal arguments, political arguments. I've been covering this beat for a dozen years. It just felt so real to me, again, being pregnant right now, but also understanding that everyone is on a different path here, regardless of whether they choose to be pregnant or not, what circumstances change, what barriers they face. The last line in the Alito passage is "assuming the human form by a certain period of time." I wanted to reassert: I too have a human form. The humanity of the pregnant person has been completely erased from this majority opinion, both legally and rhetorically. It felt like, let's get that back into the conversation. You can have sincere respect for fetal life, which is the phrase the Supreme Court used to use. But you also cannot erase the person whose life is already here on earth.
--:-- Kara Swisher: Yeah, actually, I just saw AOC tweeted, "forced pregnancy is a crime against humanity." The legal scholar Michelle Goodwin has a really great argument, which she developed in the New York Times op-ed page, about how forced pregnancy is arguably a violation of the 13th Amendment. It's arguably forced servitude. She places it in the tradition of African-American women in this country being forced to carry out state interests, create labor on slave plantations. She argues that the state conscripting people to remain pregnant against their will, no matter what their individual circumstances, repeats that error and repeats that sort of constitutional misunderstanding. It's not just that the 19th century tells a story that Alito told us in that majority opinion. There were also other movements and arguments against slavery and for women's rights that were also part of our nation's history and tradition.
--:-- Kara Swisher: So New York Magazine put together a guide of how to access abortion services and how to get an abortion across the country, which is tremendous. It's available in print and for free online. What are some of the ways abortion care will change in the near term? You're already seeing people denying abortions in most of these states. The laws are moving very quickly, especially these trigger laws. Give us an idea of how it will change in the near term and then the longer term.
--:-- Irin Carmon: Immediately, nine states have trigger laws on the books that say if Roe is overturned, abortion is illegal. There are other states that have more ambiguity—they have pre-Roe bans still on the books, or restrictions that might conflict with each other, or they're going to pass some now. We think that in 26 states, it's going to either be totally illegal or severely restricted to access an abortion.
--:-- Irin Carmon: But what does that mean in practice? When we still have all of the other states in which abortion is legal and accessible or trying to be accessible, what does it mean, for example, that now you can get an abortion pill set sent to you, medication abortion, the same thing that you might do in a clinic under the supervision of a doctor over telemedicine? You can get that mailed to you from somewhere where it's legal, whether it's Europe or a blue state here. How does the law interpret that? How far will the state go in surveilling its citizens with their Google search history, whether they are seeking ways to end a pregnancy by themselves or whether they want to go to a doctor in another state? Currently, most of these laws focus on the provider. What happens when there is no provider? What happens when it's somebody taking the matter into their own hands?
--:-- Irin Carmon: One of the statements made in the majority opinion, also by Brett Kavanaugh's concurrence, was that abortion has really torn our country apart. The Supreme Court created this big mess. It's our job to step away. But they're not going to be able to step away because there are so many questions now. We know what's black and white on the page. How will a prosecutor enforce that? How will other states cooperate or not cooperate when they get a subpoena asking them to investigate an abortion provider? Some blue states are already passing laws saying we won't cooperate if this is a legal procedure. We are in completely uncharted territory.
--:-- Irin Carmon: In the meantime, there are patients who had appointments for Friday, appointments over the weekend, appointments for Monday. They're stopping at red lights or being told literally while inside the clinic. People reporting from inside these clinics have indicated that immediately they were told, "We cannot help you." That's a straight line you can draw from that decision to what's already happening. We're not done with where that line is going to take us.
--:-- Kara Swisher: In the longer term, it would be a case of these states trying very hard to enforce their shitty laws, correct?
--:-- Irin Carmon: Yeah. It's going to be interesting to see with these companies coming out and saying that they'll cover it for their employees and cover the travel for their employees. To what extent are these the individuals who need the most help? How is it going to reach those who need the most help? There are abortion funds operating in hostile states that have paused because they're worried they're going to be prosecuted and they're trying to figure out under the law how this is going to work. We really don't know how it's going to work.
--:-- Irin Carmon: We also don't know how tech companies are going to respond to subpoenas. Before, we didn't have this kind of technological surveillance of people's search history or their email history. I've covered trials in which, even when Roe was in place and abortion was legal, there was a woman in Indiana who ordered abortion pills over the Internet and her email and search history were used to prosecute her for self-inducing an abortion. She spent a while in prison before she was freed on appeal. To what extent will tech companies cooperate with law enforcement when there isn't this kind of constitutionally mandated privacy around reproductive decision making?
--:-- Kara Swisher: Right, right. I suspect they will fight them. That would be my guess. But who knows? It's available lots of places. So it's been a court battle so far, and there's going to be more. But you've written it's moving to grassroots organization. Tell us more about that and what group stands to benefit most and which are the most effective?
--:-- Irin Carmon: I think there is a tendency to despair because this was the worst case scenario for people who support reproductive freedom. But there are still clinics on the ground in these hostile states that are trying to figure out how to help their patients, whether it's to help them go out of state, whether it's to consult with them about ultrasounds, pregnancy tests, miscarriage management—just resources that are unbiased and not just trying to talk them into one outcome versus another. There are abortion funds in other states that are trying to help people in states where it's legal, trying to help people get out of their states.
--:-- Irin Carmon: I have covered the anti-abortion movement for a really long time. You could say one of the ways they got here was luck and timing. They put all their money on Donald Trump to appoint Supreme Court justices and they got three. They got the good luck of having Anthony Kennedy retire and Ruth Bader Ginsburg die during the Trump administration. They might not have been able to plan that, but in order to be ready to seize that opportunity, they have continued for 49 years to press this case, even though it is deeply unpopular. When they have lost in Congress and state houses, they've doggedly repeated and continued and tried new strategies, but also tried the same strategy over and over again. They have never taken their eye off this ball.
--:-- Irin Carmon: One of the flip sides of the Democratic coalition being so diverse and Democratic politicians also having really complicated, sometimes squishy ideas about abortion is that that has not happened on the other side. There was always a faith that the Supreme Court would never go this far. Never do this. It would always be a backstop. Secretly, I think a lot of people just believed John Roberts is not going to do that. He sort of did and didn't. Looking to the anti-abortion movement's success with their laser focus on getting to this point—yes, the timing was fast and lucky because of a series of tragedies and accidents, but also because this is one reason a lot of people turned out and voted for Trump. This is what they wanted. They wanted all of the other decisions we're getting right now that are undermining separation of church and state, that threaten to undermine other protected rights such as the rights of LGBTQ people and contraception access.
--:-- Irin Carmon: Organizing from the ground up is something they have been doing all along. It's local practical support. It's helping people. It's also making this an issue that matters to those who support reproductive freedom as much as it matters to those who want to restrict it.
--:-- Kara Swisher: Let's finish up talking about the politics of it, because there are lots of areas this can go. Nancy Pelosi recently backed an anti-Democrat Henry Cuellar in a primary fight. He won by less than 300 votes last week. Trump reportedly told advisors and friends the ruling will be, quote, "bad for Republicans." Polls show that overturning Roe is a big motivator for Democrats to come out and vote. The same isn't true for Republicans. How do you assess the political landscape right now?
--:-- Irin Carmon: I don't think anybody on the Democratic side should be complacent about it. They have to show what they're going to do with their power. There's already a feeling—yes, they don't have a filibuster-proof majority in the Senate, but they do control both chambers. They do control the presidency. If you look at the numbers among young people, they're pretty dismal right now. Showing that there is a plan is going to be really important. There are already a lot of legal scholars and activists trying to put forward things the federal government can do. To some extent, Merrick Garland and Biden both came out talking about medication abortion. I thought that was a really important step. But just a vote, I think, is not cutting it for a lot of younger people.
--:-- Irin Carmon: There's an assumption that we saw in 2016 that white suburban women are going to turn out in droves out of disgust for either Trumpism or the legacy of the Trump administration, which is what we're feeling right now, and the legacy of a very long social conservative movement. But I don't think that can be assumed because there are a lot of other countervailing forces. Will it still feel as salient in November? I think it's really up to the Democrats to make sure it's not just salient, but also urgent, and not just something that people freaked out about the last week of June and then went on their summer vacation and went back to whatever the issue du jour is in September.
--:-- Kara Swisher: What are some of the responses? Pelosi has been under fire for sending out a fundraising email within the hour of the Supreme Court's decision. I'm not surprised by that. AOC called the Democratic tactics, quote, "unfocused nonsense" and said the party should message about actual measures, as you discussed. How many seats does a party need to codify Roe, for example? What do you think the most critical actions to be taken now are for the Democrats?
--:-- Irin Carmon: In some ways, the Democrats have genuinely come a long way on abortion. There used to be many more anti-abortion Democrats in Congress, and now they are outliers, frankly, because most of them have been replaced by Republicans and redistricted and gerrymandered out of their seats. That said, I think Nancy Pelosi has always been extremely clumsy in how she talks about abortion. It's clear it makes her uncomfortable. Some of the things she says really don't align with the talking points that the groups wish she had, and they're kind of apologetic or confusing. Back in the day, she supported a carve-out for abortion coverage in the Affordable Care Act. She has called the Hyde Amendment something she doesn't want to touch, which penalized poor women by not funding abortions.
--:-- Irin Carmon: I understand it's not just now—it's a years-long legacy of saying, when things look tough and when people are paying attention, "we're here for you." But when push comes to shove and you're writing legislation and you have the power to actually get something done, where were you? Where were the Democrats when they didn't codify Roe v. Wade?
--:-- Irin Carmon: However, if Republicans get power, listen to Mike Pence. We were told by Kavanaugh's concurrence that this is just about restoring it to the states. So why is Mike Pence and Senate Republicans so interested in a national abortion ban? That doesn't sound like returning it to the states. That doesn't sound like people in California and New York are going to be able to get abortions, which is what we're being told—that it's all going to be okay. As much as there needs to be a push from people who support reproductive freedom to their own side, let's not lose track of the Republican Party. They gave us Samuel Alito, Clarence Thomas, long before Trump. They are very eager to seize their opportunity to pass a national abortion ban and perhaps even personhood that could affect contraception, IVF, and reverberations that people now are calling scare tactics. But if you look at their agenda, it's right there in black and white.
--:-- Kara Swisher: I agree. A hundred percent. So there's one thing Democrats can do right now. What would it be, Irin?
--:-- Irin Carmon: I really think focusing on trying to get medication abortion through the mail safely, because the FDA says it's safe. Spreading information about it. Trying to make sure there's a federal preemption. The larger thing would be finding the ways in which the federal government can supersede some of these state laws to make sure that for as long as possible, maybe even until it goes back to the Supreme Court, individuals can still access the health care that they need.
--:-- Kara Swisher: Okay. All right. You can read Irin Carmon in New York Magazine and find her on Twitter at I-R-I-N. All right. Thank you, Irin.
--:-- Irin Carmon: Thank you so much. And we'll be looking forward to more of the things you'll be writing.
--:-- Kara Swisher: Thanks, Kara.
--:-- Kara Swisher: We're back. I'm now joined by Amy Kapchinski, a professor of law at Yale University and a former clerk for Justices Sandra Day O'Connor and Stephen Breyer. So let me just start about what this decision says about the state of the court. Let's have the high level. What this decision says.
--:-- Amy Kapczynski: I think what it says about the court is that you have a very emboldened five members with, I would say, fairly extreme views that's just starting to feel its power. They are willing to do things that are contrary to what the majority of Americans want, to fulfill visions they have of the Constitution and what it should mean that are very much out of step. They're just starting to feel that power and exercise it in some pretty frightening ways, in my view.
--:-- Kara Swisher: Since you worked as a Supreme Court clerk, how did these alliances coalesce between and among people? Clarence Thomas has always been on the outer edge, even further than many of the justices. Alito is sort of next to him. They're often together. How do they coalesce with the rest, especially the three others?
--:-- Amy Kapczynski: The court's membership has changed. As the membership changes, you start to see the voting patterns coalesce in new ways. It's pretty clear now from this decision that the middle voter on this issue is Brett Kavanaugh. Clarence Thomas wrote his own concurrence in this decision saying where he'd like to see the law go. He has a very influential voice, not only because he's a very senior member of the court, but because he has a lot of former clerks who are out there in the judiciary and he has a kind of right-wing megaphone at the Supreme Court. People listen to what he says because of his seniority and also because of his movement alliances.
--:-- Kara Swisher: Also his wife.
--:-- Amy Kapczynski: Also his wife. His wife is clearly an indication of that. He takes on very aggressive positions in this case and often others that are often a bellwether for where the most conservative aspect of the court would like to go. I say "most conservative" because it would be wrong to think of Kavanaugh, for example, as the middle in some middle America kind of way. He's also very conservative, as you see from him joining this opinion. They form alliances and vote together.
--:-- Kara Swisher: Do they always agree? Because they haven't. They don't always agree.
--:-- Amy Kapczynski: As a clerk at the Supreme Court, a lot of cases are not very interesting. They're highly technical. You see all kinds of lineups on the court in these other kinds of cases. But when you get these hotter political issues, that's when you start to see them really organized into voting blocks. They're telegraphing now in these decisions what they're thinking about and where they'd like to go. That's something really important to pay attention to.
--:-- Kara Swisher: On the other side are three of the justices.
--:-- Amy Kapczynski: That's right. Sotomayor, Kagan, and Breyer. That will be replaced by Jackson, presumably.
--:-- Kara Swisher: And then in the middle, really, is Roberts.
--:-- Amy Kapczynski: Roberts and Kavanaugh. What ends up happening on a court with nine members is if there's somebody who's the fifth vote, they end up being what we call the swing vote. Their views tend to matter. People pitch arguments to them. Right now, that's Kavanaugh, not the chief justice anymore. There was a time before Amy Coney Barrett was on the court that he was more of a swing justice. Now I would say it's Kavanaugh who's distinctively to his right and does not think of the institutional legitimacy of the court in the same way that the chief justice does.
--:-- Kara Swisher: Talk about legitimacy. Opinion pieces say this is a blow to the Supreme Court's legitimacy. Can you talk to that?
--:-- Amy Kapczynski: It's clear from what I hear in my sidewalk conversations now, and I imagine people saying to the newspapers, that people didn't expect this. Many people in America felt like Roe was settled law. Every one of these justices said it was settled law in their testimony, so it's reasonable to think that's what they thought. It had proved to be not uncontroversial, but something that most Americans support. Such a rapid and full-throated shift—you have to appreciate what this opinion says. It's not just that it overturns Roe, which is not just precedent but what lawyers sometimes call "super precedent" because it's been affirmed many times. It's also how they do it.
--:-- Amy Kapczynski: What they say is we have to go back and look at history and tradition. Going back to a time when women didn't have the vote to ask such a fundamental question about women's bodily autonomy. Then they forge around in the history and find what they like and say, "This is the right view of the Constitution." Under that view, as far as we can tell from this opinion, states can pass laws that don't have exceptions for rape and incest, that don't have exceptions for the health of the mother. There doesn't seem to be any real limit. Maybe the life of the woman—we'll see about that. Doctors are nervous about that. It's a very extreme opinion in that way.
--:-- Amy Kapczynski: The thing I hope people can see is that this is part of a broader tapestry of what the court is doing. These kinds of decisions get a lot of attention, but other decisions get less attention. They similarly are building on the same kind of right-wing power on this court. They're going to use it, and they're using it in many dimensions. This does present a blow to the legitimacy of the court and to people's sense of what they can rely upon.
--:-- Amy Kapczynski: For example, this opinion says it's all about democracy, but that's not what their other opinions say. Just the day before, this court overturned a New York law about gun regulation that was more than 100 years old, on the basis of a right that is not in the text of the Constitution in the way they say abortion is not in the text—the right to self-defense to hold a handgun in public. This is a court that is very willing to make decisions, including striking down laws, and say, "Hey, the Constitution, it's our way, what we think governs." It's not that they're always deferring to what people would do at the ballot box. Often they're not.
--:-- Kara Swisher: So activist judges, in other words. There's speculation that the court could come for marriage equality and contraception next. Is there any sign of that? I know there's a lot of worry about Clarence Thomas and his concurring opinion wrote that his fellow justices should reconsider some historic cases around due process, privacy and civil rights. Griswold—married couples can use contraceptives. Lawrence—states can't ban same sex acts. Obergefell—very famous gay marriage issue. Where are those from your perspective?
--:-- Amy Kapczynski: They could be. They always could be. It would be really foolish now for anyone to think that the rights gathered under this line of constitutional doctrine are safe. The same arguments they use in the majority opinion could be turned against these other decisions. Clarence Thomas's concurrence is very explicit about this. He's effectively broadcasting, "Bring us cases. Bring us the gay marriage case for us to reverse that one. Bring us contraception cases." Possibly he wants to reverse Loving, the case that allowed interracial marriage. He's saying, "Bring us those cases."
--:-- Amy Kapczynski: One thing most people might not think about with these 200-page long decisions is how people read them. Lower courts read those decisions. Activists read those decisions. They say, "Maybe now's the time to deny some marriage licenses. The court wants this case back. Let's send it back to the court. Maybe now's the time to pass that state law that will create a controversy that the court seems to say is part of the reason to overturn one of these old settled precedents." Thomas is inviting this.
--:-- Kara Swisher: Are the other justices down for that? Because Alito said specifically they're not down for that, correct?
--:-- Amy Kapczynski: What Alito says is quite careful in legalese where he says, "This case just decides this case. This opinion shouldn't be understood to cast doubt on things not about abortion." Thomas agrees with that. He says, "I totally agree. This case doesn't." But the logic does. They can say that. There's also the question about how much you believe when they say this is settled law. They said that about Roe. There's no reason to think that it's settled.
--:-- Amy Kapczynski: The question you might also ask, being more of a realist about this, is: a court that has power is going to use it. Do they have five votes? It's not clear that Kavanaugh is going to go along with this. That's the person people are going to be watching. But then again, it wasn't clear Kavanaugh would go along with Roe, right?
--:-- Amy Kapczynski: So I don't think anyone should feel secure about this. That's what the dissent is saying, and they know this court as well as anybody. They say, do not feel secure about this. It absolutely could go.
--:-- Amy Kapczynski: Now, the way Roe went was a period of conservative mobilizing. People think that Roe was controversial in the day it was decided. No, it was actually a long project of the conservative wing of the Republican Party.
--:-- Kara Swisher: Could you see gay marriage, for example, or contraception become the new issue to mobilize around? Absolutely. Not as easy. Well, you think it's not as easy to mobilize around as abortion?
--:-- Amy Kapczynski: I think that's probably right. But look at what's going on around us about CRT and trans kids and the "groomer" discourse. I think that suggests that there is an appetite for mobilizing in a way that actually follows the pattern of what happened with abortion. And I think Republican strategists will tell you they need a new issue to mobilize around. They do.
--:-- Kara Swisher: So what are Democrats' options with the court in the wake of this ruling? Pack the court is one of them, right? What stops Republicans from packing the court the next time they're in charge?
--:-- Amy Kapczynski: Well, this is one of the questions about court packing. I don't think there is anything necessarily that stops the Republicans from doing it the next time they're in charge. So I think one has to think both about court packing and other ways of curbing the power of the court. There are a lot of proposals out there about how to do that. But of course, one thing we have to do is win elections in the meantime.
--:-- Amy Kapczynski: That said, if you win elections, you can both address the court's power, you can pack the court, you can do other kinds of court reform—or some people would say "unpack the court," given the stolen seat. But you can also pass laws that would protect the right to abortion and protect other kinds of privacy rights.
--:-- Kara Swisher: But specifically with the court, the idea of packing it—where is that on the spectrum from your perspective?
--:-- Amy Kapczynski: On the spectrum of what?
--:-- Kara Swisher: Of doing something. Biden has said he doesn't want to do that, correct?
--:-- Amy Kapczynski: Biden doesn't seem to like the idea. And I think it is going to take some real build-up to get there, because I don't think people are really used to thinking about the court as an extreme institution that needs to be addressed with measures we haven't used in a long time. So I think it's going to take some time to get there. But I have to say, if these kinds of opinions keep coming down, that is where this is going to go.
--:-- Amy Kapczynski: It's not just these opinions. It's opinions about voting rights. It's opinions about corporate free speech and campaign finance. I think the scariest part is undermining the voting process itself. Then you have to win elections to undo what the court is doing. That's a very tricky setup.
--:-- Kara Swisher: Right. So what about impeaching justices who lied about their position on Roe during their confirmation hearings? Congress members also called for Clarence Thomas to resign earlier this year when it was revealed that he didn't recuse while ruling on a January 6th issue that involved his wife. Any possibility of that?
--:-- Amy Kapczynski: I think if you had enough votes in the Senate, a realist would say it's not an impossibility, and there are going to be people calling for it. When the court gets very out of step with what American majorities want, we have seen measures to change the size of the court. We've also seen measures to criticize the court in ways that can influence their decisions. Impeachment is very rare, but there certainly is a constitutional process for it. Some of the things we've seen in these confirmation hearings are a dance anyway. Whether you're going to see people impeached, I wouldn't count on that, but you're certainly going to see calls for it.
--:-- Kara Swisher: Calls for it. What about one proposal that requires a supermajority to invalidate federal statutes? Another one, very similar to the filibuster, another one would call for term limits. Any of these?
--:-- Amy Kapczynski: Term limits have gotten a fair amount of play, I think. That's because the reality of having people who could sit on this court for 50 years is very troubling from the perspective of a democracy. So term limits are actually a fairly popular idea. And things like requiring supermajorities to strike down statutes also, because many of these cases are striking down statutes on the basis of ideas about the Constitution.
--:-- Kara Swisher: And how do you get to either of those things?
--:-- Amy Kapczynski: Some of these things Congress can pass laws about. People are going to debate whether some of them require an amendment to the Constitution, which is incredibly hard to amend. But there are theories under which you could pass laws about many of these things just through Congress.
--:-- Kara Swisher: So would the court strike those down?
--:-- Amy Kapczynski: It's another possibility. This is one of the very tricky things about where we're headed.
--:-- Kara Swisher: They can't strike down an amendment, correct?
--:-- Amy Kapczynski: Well, they could interpret it one way or another. Strike it down? No, you're not going to see that. But an amendment is also very, very hard. So what you're more likely to see is people trying to pass statutes, and then the court may say yes or no to that statute, likely interpreted through the same hyper-conservative lens of a court that likes the power it has and plans to use it.
--:-- Kara Swisher: Yeah, so hard to do that. So by turning this back to the states, my last question: Has SCOTUS just unleashed legal chaos? Can states ban interstate travel and funding for abortions? Can states ban abortion pills and contraceptives?
--:-- Amy Kapczynski: They can sure try, but that doesn't mean they'll be successful. I would expect that's what we see. When you think about the way people argue about abortion in this country, people don't say, "I just don't want abortions in my state." The anti-abortion groups are looking for more extreme things—not just a ban on interstate travel, but fetal personhood. Not just laws, but even constitutional arguments.
--:-- Amy Kapczynski: This is one thing this opinion opens the door to. They talk about fetal personhood. If the court were to go one step further and say a fetus has full personhood rights under the Constitution, then you couldn't have New York State or California allow abortions. That's possible. That's where a lot of conservatives would like to go. So you'll see attempts to push the court in that direction, and absolutely a lot of very complicated legal cases about whether you can ban the right to travel.
--:-- Kara Swisher: What about just speech? What about people promoting? What about the regulation of abortion pills?
--:-- Amy Kapczynski: All of those things are going to come right back to the courts. You can read some things that Kavanaugh is saying in his separate concurrence where he says, "I think there's a right to travel in the Constitution." He's trying to contain some of the chaos. He knows the chaos is going to follow, and he's trying to contain it. That said, what do you know about what exactly he would do in the next case? I don't think we know very much.
--:-- Kara Swisher: Not at all. So it could be chaos.
--:-- Amy Kapczynski: Well, that's what they want. And unfortunately, they broke it. Now they own it.
--:-- Kara Swisher: That's right. They're going to have a hard time controlling California, New York, and all the aggressive actions they're going to take.
--:-- Amy Kapczynski: That's right. And I also think Americans don't really remember a world before Roe—most people, right? So are they prepared for women to be forced to give birth to the child of their father? Some of these laws say no exception for incest, no exception for rape. What about the life of the mother? Are people prepared for that? That's also where the arguments are going to go. Stopping women from crossing borders, stopping information flow—all of that is where it's headed. It's a lot of conflict ahead of us and a lot of involvement from the courts, whatever they say about wanting to stay out of it.
--:-- Kara Swisher: So last question: How do you feel? Because I remember when I interviewed you recently, you were thinking this was exactly what was going to happen. You were one of the more not-positive members of the group.
--:-- Amy Kapczynski: It feels different to really see it on the page in the final opinion, but it is what I thought would happen when we saw the leaked opinion. How do I feel about it? I think it's a really tough time. Because it fits with a lot of other things going on, including things that make it very hard for majorities in this country to express their view. We know that there are majorities in support of abortion rights and against this opinion, but what's the vehicle that can actually allow us to express that view collectively? It's not obvious. And this court is part of that problem.
--:-- Amy Kapczynski: So it's a pretty dark time. It's one of the reasons I appreciate that people are paying attention to what the court is doing and giving over their time to listen to and follow these decisions, because it's going to be really important for people to understand and appreciate the power that the court has so that we can start to take on the questions of what to do about it. That's where we've got to go next. On some level, I think it's a very pricey decision for them. We'll see where it goes from there.
--:-- Kara Swisher: Anyway, you can read Amy's writings on her blog. We'll put a link in our show notes. Thank you, Amy Kapczynski, for coming on.
--:-- Amy Kapczynski: Absolutely. Thank you.
--:-- Kara Swisher: We're going to go on a quick break. When we come back, we'll speak with Evan Greer about what this means for tech and privacy.
--:-- Kara Swisher: We're back. I'm joined now by Evan Greer. Evan is the director of Fight for the Future, a digital rights group that advocates for privacy and regulation of the tech industry. Welcome, Evan.
--:-- Evan Greer: Thanks so much for having me.
--:-- Kara Swisher: So just in the previous interview, we talked about this idea of what tech companies will do. So let's talk first about privacy. There's online chatter about the risks of period tracking apps and stuff like that, but it's a wider issue. So what are the biggest concerns? And are they valid?
--:-- Evan Greer: I think this moment needs to be a wake-up call that the surveillance capitalist business model that has driven so much of the tech industry over the last number of years has put us in a situation that's incredibly dangerous. This shows that that surveillance-driven, collect-it-all-and-sort-it-out-later model is fundamentally incompatible with basic human rights.
--:-- Evan Greer: As you said, there has been understandable focus on menstrual tracking apps, but the reality is a random game on your phone could just as easily snitch out your location to law enforcement in a world where people accessing, providing, or facilitating abortions are being criminalized. We need to take a holistic look at the data collection practices of nearly every tech company and non-tech companies. We need both lawmakers and companies themselves to act immediately to reduce the amount of data companies are collecting and storing so that it doesn't create this massive attack surface for rogue law enforcement agencies.
--:-- Kara Swisher: Right, exactly. So let's start with tech companies. If they wanted to safeguard user data, do they have the ability not to be subpoenaed, essentially?
--:-- Evan Greer: That's exactly right. Any tech company will tell you, "We comply with legal requests in the countries and jurisdictions where we operate." The only way for them to avoid being complicit in assisting law enforcement in cracking down on people seeking reproductive health care is for them to make sure they don't have the data in the first place. They need to limit the amount of data they collect and retain. For many companies, that means taking a good hard look in the mirror at their business model and asking themselves whether surveillance-driven advertising is really something they want to pursue for the long run.
--:-- Kara Swisher: So a journalist asked major tech companies if they would provide law enforcement with their user data about abortions. None of the companies answered the question. Facebook, Twitter, Snapchat, TikTok, Google, Amazon, Discord, Verizon, AT&T, Venmo, Uber, and Lyft. So what does that tell you? They haven't figured it out. I can't believe they didn't know this was coming, but what do you imagine they're doing right now?
--:-- Evan Greer: I hope that every single tech company is holding an emergency meeting today where they are trying to figure out in good faith what they can do to limit the degree to which their tools and services will be weaponized against people seeking and providing abortions. That's my optimistic hope. I know there are people who work for these companies who care.
--:-- Evan Greer: Fight for the Future issued a letter with more than 50 other organizations echoing the demands of 40 lawmakers calling on Google specifically to end its practice of unnecessarily collecting cell phone location data. Apple is not collecting that data. Google doesn't need to collect it to provide users with the service. They're collecting it to make a few extra bucks. Those are the types of practices where companies really can start to clamp down.
--:-- Evan Greer: Rather than just saying, "We're going to help our employees move if they need to move," if they want to show that they really care about protecting people's basic reproductive rights, first and foremost, they should tell us explicitly what steps they're going to take to reduce that attack surface of government surveillance built on top of corporate surveillance. Secondarily, they should tell us that they're going to stop spending so much money lobbying against common sense privacy legislation. Specifically, they employ tons of lobbyists in states where abortion is likely to be criminalized very soon. Maybe they should fire those anti-privacy lobbyists if they want to show a real commitment on this issue.
--:-- Kara Swisher: All right. Many companies, as you know, announced they'd pay for abortion travel. But there are much bigger steps they should be taking, as you've noted. After Texas banned most abortions last year, Match Group, Tinder, Hinge, and OkCupid announced they would pay for employee abortion travel. But Match Group also donates to the Republican Attorney General's Association, which had a hand in the Dobbs case. How do they separate those two? They have lobbyists pushing anti-privacy stuff. They've got subpoenas coming in. And they sort of virtue signal that they'll pay for their employees to travel to get abortions, which could very well be illegal.
--:-- Evan Greer: Absolutely. That's why we need to look at this as a holistic problem. Tech companies need to think holistically. It can't just be, "Our PR people are going to tell everyone about all the nice stuff we're doing for our employees, and our tech people are trying to figure out if there's anything we can do, but really we don't want to because we want to keep collecting this data and making money off of it." If they want to show a real commitment, then we need to see real action. Actions speak louder than words.
--:-- Kara Swisher: So also, what are the privacy implications of telling your employer that you need an abortion?
--:-- Evan Greer: No one should ever have to disclose such a thing to their employer. That alone violates that person's privacy. And another thing: I saw one of the labor unions tweeting about the fact that the Google policy only applies to their full-time employees. It doesn't apply to their contractors, who are the folks on their workforce most likely to actually be in need of that kind of support. If I worked for one of these companies, I would certainly be grateful to know that, but I would also make enough money that I could probably move myself and my family if I needed to. If these companies want to show that they're actually supporting the people who are most vulnerable, then they need to be taking more serious steps—like ending some of these privacy violations, and perhaps stopping contributing so much money to politicians who are trying to undermine people's reproductive rights.
--:-- Kara Swisher: So how will this change the Republican approach to social media regulation? On one hand, Republicans will pressure tech companies to censor information about abortion access. On the other hand, they're also telling these platforms to leave up user posts. Hypocritical? Yes. What do you imagine is going to happen now? Because they've never been hypocritical a day in their lives.
--:-- Evan Greer: Unfortunately, that's the problem. I think Republicans largely have no issue with talking out of both sides of their mouth and saying "censorship is bad, but this type of stuff should be censored because it's harmful for our kids." I think we need Democrats to be the adults in the room on this one. From where I'm sitting, this moment should be a wake-up call for Democrats specifically on Section 230 of the Communications Decency Act.
--:-- Evan Greer: We've seen Democrats propose a number of well-intentioned but misguided proposals to create carve-outs in Section 230, basically because they want platforms to moderate more responsibly. But their proposals would lead to platforms moderating in a more risk-averse manner, which does not necessarily translate to a more responsible or humane manner. My fear, and what any sex worker could tell you from the wake of SESTA-FOSTA, is that if Democrats ever succeeded in creating some of these carve-outs, you would see a wave of lawsuits targeting social media platforms, payment processors, CDNs, and web hosts for hosting content where people are talking about accessing, facilitating, or providing abortions.
--:-- Evan Greer: That's not a theoretical concern. The right-wing anti-abortion movement is lawyered up, they're highly litigious, and they are saying openly that litigation is one of their key strategies to shutting down people's access to abortion. They would love nothing more than to see good information about abortion access scrubbed from the internet. They may succeed in doing that if Democrats help them by coming together with Republicans on some kind of 230 carve-out. That becomes more of a fear if Republicans take the House, because they've said that's the direction they want to go on tech regulation—let's poke holes in Section 230.
--:-- Kara Swisher: There are other ways to have liability. That's how I put it to them when I discuss 230. But there are other things you can do, such as privacy legislation where people can sue on that. So what is the one thing, last question, that you think has to happen right now if you're running Google or Amazon or Facebook? What would you do if suddenly they had a different brain?
--:-- Evan Greer: I would call an emergency all-staff meeting. I would get all of my privacy and security engineers working on the problem of what data do we have that could be weaponized and used to prosecute, track, or monitor people who are providing, facilitating, and receiving abortions. And how can we get rid of it, stop collecting it, and figure out a business model that's not reliant on collecting and storing that type of data? This situation shows that that's never going to be a business model that's safe for vulnerable people. If they really care about vulnerable people, they need to find a new business model.
--:-- Kara Swisher: 100%. The answer to that one is all of it. All of it can be used and weaponized. Anyway, Evan Greer is on Twitter at @Evan_Greer, and you can find her work at fightforthefuture.org. Evan, thank you so much.
--:-- Evan Greer: Thanks for having me.
--:-- Kara Swisher: Well, that was a truly depressing show. I'm sorry Scott's not here, but it's not a funny time, so maybe that's for the best. Anyway, we want to hear from you, whether it's about abortion rights or about tech and business. Go to nymag.com/pivot to submit a question for the show, or call 855-51-PIVOT. Okay, that's the show. We'll be back on Friday with Scott again, but we're not done talking about this. There's lots more to come.
--:-- Kara Swisher: Today's show was produced by Lara Neyman, Evan Engel, and Taylor Griffin. Ernie Endredot engineered this episode. Make sure you subscribe to the show wherever you listen to podcasts. Thanks for listening to Pivot from New York Magazine and Vox Media. We'll be back later this week for another breakdown of all things tech and business.
--:-- Kara Swisher: I will leave you with a quote from Margaret Atwood, who wrote *The Handmaid's Tale*: "Sooner or later, I hate to break it to you, you're going to die. So how you fill the space between here and there, it's yours. Seize your space."
--:-- [Transcription by CastingWords]
