Amicus With Dahlia Lithwick | Episode Summary

Episode: “Abortion, Surveillance, and Vigilantism: An American Story”

Air Date: September 3, 2021
Host: Dahlia Lithwick
Guests:

• Michelle Goodwin (Chancellor’s Professor of Law, UC Irvine; author, Policing the Womb)
• Rebecca Traister (Writer at Large, New York Magazine; author, Good and Mad)

Overview

This urgent “Amicus” episode responds to the Supreme Court's late-night refusal to block Texas’s new abortion law, SB8. The conversation explores the law's design—banning abortion after six weeks and deputizing private citizens to enforce it—its implications for reproductive rights, and broader themes of vigilantism, surveillance, and a historic curtailment of women’s autonomy. Dahlia Lithwick is joined by legal scholar Michelle Goodwin and journalist Rebecca Traister for a deep, sometimes emotional, analysis of legal, historical, and political dimensions, as well as strategies for resistance and change.

Key Discussion Points

1. The Nature and Impact of Texas SB8 (00:49–07:34)

• SB8’s structure and enforcement:

  • Civil, not criminal: The law bars state officials from enforcement, empowering any citizen to sue abortion providers or those who ‘aid and abet’ abortion (which remains undefined).
  • Outcome: Effective halt of >85% of Texas abortions, especially since most happen after six weeks.
  • “This law...provides for a right of action of private citizens. It provides for financial remuneration of those citizens who are able to successfully peg someone who has aided or abetted an individual in obtaining an abortion.” – Michelle Goodwin (07:45)

• Weaponization of citizenship:

  • Goodwin draws parallels to the Fugitive Slave Acts, which empowered citizens to police the freedom of enslaved people, noting a historical pattern of using private enforcement to violate rights.

2. Historical Echoes and the Vigilantism Model (07:34–10:55)

• Comparisons to fugitive slave laws:

  • Goodwin highlights the dangerous precedent of legalization of bounty hunting and surveillance, where “virtually anybody who has been in the way of the path of a person exercising the constitutional right” can be targeted. (08:27)

• Targeting support networks:

  • Traister underscores how the law specifically aims to isolate women from their support systems, targeting not just providers but people raising abortion funds, activists, and anyone who assists. She frames this as an intentional attempt to dismantle decades-old networks built to help women facing abortion obstacles.
  • “This law takes aim at those systems of support...It’s those, the activists...the people who’ve known this was coming, that this law targets.” – Rebecca Traister (13:40)

3. The Supreme Court’s Handling: Shadow Docket and Jurisdiction (15:49–23:43)

• Procedural technicalities:

  • The Supreme Court let the law stand, citing “uncertainty about who to sue.” No substantive ruling on Roe or Casey’s merits; case was shunted aside in an unsigned order, with dissents by all four liberal/moderate justices and Roberts.

• Consequences and message:

  • Goodwin: The Court’s decision signals disregard for millions in Texas, and “ultimately aided in gutting Roe v. Wade...So they get to appear as if their own priors were not somehow on display in their refusal to impose an injunction in this case.” (17:27)

• Impact on health and race:

  • Goodwin references empirical data: “A person is 14 times more likely to die nationwide in the United States by carrying a pregnancy to term than by terminating it.” (20:56)
  • Black women are at dramatically increased risk, especially in Texas.

4. Political, Cultural, Media Responses—Gaslighting and Sleepfulness (23:43–40:15)

• Why did the Court act this way?

  • Traister speculates: “One answer is almost certainly just pure disdain and disregard for the kinds of people who they imagine need abortion… There’s a message of power, there’s a message of domination in showing your disregard and your disdain and that this is not important.” (25:52)

• Republican strategy and Democratic complacency:

  • Both guests highlight the GOP's decades-long, coordinated assault on reproductive rights (state legislatures, court appointments, etc.), and Democratic reluctance or failure to fight back.
  • Goodwin: “More anti-abortion, anti-reproductive rights laws were enacted between 2010–2013 than the 30 years prior. This is during the time that Barack Obama is in office.” (30:12)

• The media’s role:

  • Traister and Lithwick address the normalization of the “moderate” Roberts court, the flawed “post-racial” narrative, and minimize claims of alarm as “hysteria.”
  • “The Democratic Party…has absolutely refused to fight for them up until as recently as the Amy Coney Barrett confirmation hearing…” – Rebecca Traister (32:28)

5. Race, Surveillance, and Reproductive Policing (40:15–46:08)

• Historical precedents:
  • Goodwin details the 1980s–1990s “crack baby” moral panic, its racist underpinnings, and how surveillance and punishment began with Black pregnant women—laying groundwork for today’s reproductive criminalization.
  • “All has been built on the surveillance, the stalking, the criminalization, the civil punishment of black women, and the failure to recognize that the very earliest attempts then...were during slavery.” – Michelle Goodwin (41:06)

6. What Comes Next: State Copycat Laws and Legal Uncertainty (46:08–48:11)

• Prediction of national spread:

  • Goodwin sees SB8 as a “model law” (like eugenics laws after Buck v. Bell), anticipating a wave of copycat bills in red states: “A right to abortion that’s more illusory than real.” (46:21)

• Supreme Court’s signal:

  • Their inaction is a powerful sign to other legislatures that such laws will not face legal resistance from the highest court.

7. Paths Forward: Resistance, Hope, and Action (53:46–58:46)

• Political engagement:

  • Goodwin insists on the need for political change, including voting rights, legislative representation, and judicial contests.
  • “The Texas Legislature has so gerrymandered voting rights...essentially what they’ve done is to...create a pattern of voting for those who are of most economic means and sophistication...There needs to be greater balance.” (53:51)

• Practical support:

  • Immediate need to support women traveling out of state.
  • Long-haul struggle: Recognize this is a marathon, requiring indefatigable activism.
  • Judicial awareness: State judges are often elected; their roles are crucial as litigation inevitably turns toward state courts.

• Diversity and representation:

  • Greater participation by women and women of color at every level of governance, from legislatures to school boards to courts.

Notable Quotes & Memorable Moments

• Historical Parallels:

  • “There are certain analogs that eerily resemble that of the Fugitive Slave Act...It weaponized citizenry, deputized citizens to surveil, to stock, to apprehend people.” – Michelle Goodwin (07:45)

• Targeting Activists:

  • “[SB8] takes aim at those systems of support...the activists, the people who have understood that this was coming, that this law targets by saying that they themselves are now being made vulnerable.” – Rebecca Traister (13:40)

• On the Supreme Court’s Action:

  • “This is a long time in coming...and these are the warnings that Rebecca has issued and that I’ve issued in a book and across many, many different law review articles and op-eds. This is a complete disregard as well for the health and safety of the people who, who are most affected by this.” – Michelle Goodwin (19:30)

• On Political Gaslighting:

  • “For decades, I’ve been hearing people scream that women are going to die. Where? And he used the word hysteria...telling you that you’re just crazy if you think that the confirmation of Brett Kavanaugh to the Supreme Court is going to result in harm to women’s bodies, rights and autonomy.” – Rebecca Traister recounting Sen. Ben Sasse (37:20)

• On Democratic Shortcomings:

  • “The Democratic Party...has contributed to the idea that it is...a cultural issue rather than a key economic issue. The Democratic Party has been very much a part of this story, too, and has also been absolutely asleep at the wheel.” – Rebecca Traister (32:28)

• On Future Legislation:

  • “We will see those copycat laws because we also see that the Supreme Court was sending a signal by its failure to act.” – Michelle Goodwin (46:55)

• On What to Do:

  • “That requires resources, it requires information, it requires a certain sense of indefatigability in making sure that people are able to access the right to vote, but also able to run for office...It’s important to understand that this may be a kind of long arc of work to be done.” – Michelle Goodwin (53:54, 54:44)

Timestamps of Important Segments

• Texas SB8 Laydown & Legal Design: 00:49–07:34
• Historical Precedent & Vigilantism: 07:34–10:55
• Support Networks and Decades-long Erosion: 10:55–15:49
• Supreme Court’s Process and Implications: 15:49–23:43
• Political, Media, and Cultural Context—Gaslighting: 23:43–40:15
• Race, Surveillance, and Historical Context: 40:15–46:08
• Copycat Laws, National Impact: 46:08–48:11
• Paths Forward, Activism, and Hope: 53:46–58:46

Tone & Language

The conversation is sober, urgent, and at times emotional, blending legal expertise and personal reflection. With candid references to gaslighting, political failures, and the need for resolute activism, both guests and the host speak plainly and passionately about the stakes and encourage sustained engagement.

Final Thoughts

This episode frames the Supreme Court’s handling of SB8 as both a symptom and an accelerant of deep-seated American patterns of surveillance, disenfranchisement, and bodily control—especially over women of color. While the moment is described as dire, all three women emphasize the necessity of political, legal, and communal engagement to contest not only SB8 but the underlying systems enabling such laws.