The End of Roe v. Wade -- and What Comes Next | Kathryn Kolbert | TED

426,553 views ・ 2021-12-08

TED


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00:04
"What's the Supreme Court going to do about abortion?"
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“They’re not really going to overturn Roe v. Wade, are they?”
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"They can't do that, can they?"
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I can't tell you how many people have asked me questions like this
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in recent months.
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It makes sense.
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I have argued two abortion cases in the US Supreme Court,
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including the 1992 case Planned Parenthood v. Casey,
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which is credited with saving Roe v. Wade.
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I was a co-founder of the Center for Reproductive Rights,
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and I spent 20 years of my career
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arguing on behalf of women who needed abortions
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and other reproductive health care.
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So my answer is depressing but direct:
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Roe v. Wade will be dead within the year.
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The constitutional right to choose whether or not to have an abortion
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will no longer be protected by the United States Constitution.
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This court is likely to overrule Roe and Casey
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or so undermine its meaning
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that it will be effectively unavailable for use.
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Now I heard your gasps,
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I'm going to say it again.
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The Federal Constitution of the United States
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will no longer protect reproductive freedom.
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Now I'm also here to tell you
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that there's hope.
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That we can preserve, by working together,
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our reproductive freedoms.
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And by that, I mean more than just the right to choose abortion.
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By that, I mean the ability to make decisions about becoming parents.
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All people should have that right.
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Whatever their race, whatever their gender,
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whoever they love,
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all people ought to have the right to decide to become parents
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and the social supports that are necessary
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to raise those children with dignity and in safety.
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So opponents argue three things
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when they say they want to ban abortion.
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They talk about religion;
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they talk about protection of fetal rights;
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they talk about protection of women's health.
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So let's take those each in turn.
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Religion.
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You know, the reality of the world is
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that the world's religions have a wide variety of views on abortion,
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and many support them in a whole range of different circumstances.
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So when abortion opponents say religion,
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they're really just imposing their religion on the rest of us.
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And what about protection of fetal rights?
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If in fact you cared about protecting fetal rights,
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you'd spend a lot of time working to eliminate
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the alarming rate of infant mortality in this country.
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(Applause)
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Because in the United States,
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we have one of the highest rates of infant mortality
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in the developed world.
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They also should be supporting programs for children once they are born.
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(Applause)
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You know, what about the protection of women's health?
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Well, the reality is, abortion is already an extremely safe surgical procedure.
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It is safer than childbirth.
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And imposing new restrictions on abortion only makes it less safe.
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In my view, what we're really talking about,
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this fixation on abortion by opponents,
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those people who want to ban abortion,
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is all about controlling women.
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And women are unable to operate,
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to be equal participants in our society,
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if we cannot control whether, when and with whom we have children.
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We cannot exercise the fundamental human right
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to make decisions about our bodies and our destinies.
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So why am I so convinced
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that the Supreme Court is going to overrule Roe and Casey
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and take what is clearly a radical step?
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Now, interestingly enough,
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I learned everything I needed to know to be successful in the Supreme Court
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on “Sesame Street.”
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(Laughter)
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Why?
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Because you've got to learn to count.
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And the only number that matters is five --
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(Laughter)
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which is a majority of the justices on the Court.
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Now, when Casey went to the High Court in 1992,
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I was convinced that there were five justices then
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prepared to overrule Roe
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and return to the states the ability to ban abortion.
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I was correct.
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Right after my argument,
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the justices returned to their conference room and took a vote,
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and seven justices voted to uphold the Pennsylvania restrictions
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that were at issue in the case.
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And then Chief Justice Rehnquist wrote a draft opinion.
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While he never said the magic words, that Roe is fatal,
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as Justice John Paul Stevens recently wrote in his memoir,
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the opinion effectively repudiated the central holding of Roe.
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Now, luckily, that opinion was never filed in 1992.
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At the last minute, Justice Anthony Kennedy changed his mind,
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and together with justices Sandra Day O'Connor
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and David Souter,
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they issued what they called a joint opinion.
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And in it, they upheld the right of women to obtain abortion up until viability,
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usually between 24 and 28 weeks of pregnancy,
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in all 50 states and US territories.
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But the Casey decision went a little further,
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and it had permitted states to enact barriers to abortion
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as long as they weren't undue burdens on women.
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And as a result,
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in the following three decades,
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we’ve seen states pass hundreds of restrictions on abortion,
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and the increasingly conservative courts uphold those restrictions.
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And as a result, we've seen a dwindling availability of abortion.
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Today, about 11 percent of the counties in this country
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that actually have an abortion provider.
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There are six states that have one abortion provider.
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As we know, in the days before Roe,
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women with means were able to get abortions.
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Other women, on the other hand,
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even today --
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low-income women, women who live in rural areas,
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teenagers, women of color, women who are disabled --
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all of whom have difficulty
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accessing safe and affordable abortion.
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Now the question is: What’s going to happen now?
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And unfortunately, things are going to get worse.
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There are currently three cases pending in the Supreme Court,
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two from Texas and one from Mississippi.
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Now, most of you probably have been following the Texas situation.
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Texas passed a ban on abortion at about six weeks of pregnancy.
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It allowed any individual to sue abortion providers.
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Vigilantes could collect a bounty of 10,000 dollars
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for a violation of the law.
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And as a result, many, many clinics,
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probably most of the clinics in Texas,
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have closed their doors
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or have decreased the number of abortions they performed.
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It's difficult.
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But the critical piece about Texas
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is that five justices --
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remember that number five --
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five justices already voted to permit the Texas law to go into effect.
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And besides the harm for women,
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those justices are not really considering the constitutionality of the act,
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only who can be sued and where.
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The more important case is out of Mississippi.
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There, there's a ban on abortion at 15 weeks of pregnancy.
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Arguments were heard this week, and in my view,
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we are likely to see at least five justices
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overrule Roe and Casey
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and send the question of abortion back to the states.
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Sesame Street, five votes.
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And unfortunately, this time around,
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there is no Justice Kennedy to save us.
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Now, what's going to happen when Roe and Casey are overturned?
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I'd guess that about half the states in this country
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will ban all or most abortions.
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We're likely to see ban stretching from Georgia all the way west to Texas,
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from Idaho, all the way south to Arizona.
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Women, like Texan women, will be forced to travel to the 15 states
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that are controlled by pro-choice legislators and governors.
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Other women will seek medication abortion,
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using the internet or gray or black markets
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and subject themselves in some states to criminal prosecutions.
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Still, other women will carry their unintended pregnancies to term.
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The bottom line is this is not a pretty picture.
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So what now?
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What can we do?
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We have been saying for five decades,
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"Save Roe, save Roe, save Roe."
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That strategy is no longer feasible.
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Give it up.
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We've got to make sure
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we quit hitting our heads against the marble staircase.
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And try to find new strategies.
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So I'm going to propose two of them to you today.
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First, we’ve got to build a badass social justice movement.
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(Applause)
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Which means loudly crying for our rights,
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loudly saying: this is something that belongs to us.
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We know from watching the Black Lives Matter movement
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and the marriage equality movement that coalition is queen.
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We've got to find allies
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and work with them to make sure our rights are protected.
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But equally important,
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we've got to ensure that we elect --
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and I'd actually say more important --
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is we've got to elect legislators,
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throughout the states and in Congress,
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who are champions for reproductive health.
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Now, I'm not going to bother to tell you all
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how to get politically active.
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This is a crowd that knows how to do it.
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But knowing how to do it and actually doing it
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are two different things,
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so what you need to do is get politically active.
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But one of the things I will tell you
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is what would our world look like
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if we were able to wrest the reins of governmental power
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away from those who oppose abortion
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and allow an agenda
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that reflects reproductive freedoms and justice.
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Picture this.
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We would have childcare
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and universal childhood education in every community in this country.
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We would have paid maternity and paternity leaves,
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and people would actually take them.
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All working parents ought to have that right.
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You know --
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(Applause)
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According to the Centers for Disease Control,
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African American women,
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Native American women, Alaska Native women
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are dying of pregnancy-related causes
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at three times the rate of white women.
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And most of those deaths are preventable.
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So in our world where we control the reins of power,
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we would ensure,
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we would ensure that there were programs
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to reduce this alarming rate of maternal mortality.
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And we would make sure
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that the systemic racism in our health care system
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would be eliminated.
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And we'd work to eliminate infertility
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with special programs for women who can't get pregnant.
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And we would make sure that all women are entitled to health care services
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at all stages of their life.
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Now all of those things I've talked about,
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are family-friendly policies
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and ought to be supported by our opponents as well.
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I'll wait to see if that's the case.
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But in my world where we control the reins of power,
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we would do more.
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The birth control pill would be available over the counter.
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(Applause)
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OK, as easy to get as a bottle of Tylenol.
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And we'd have quality sex education in every public school in this country.
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(Applause)
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And we would make sure that ...
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abortion is affordable and available --
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no more bans, no more barriers,
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no more restrictions on funding.
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And medication abortion,
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the abortion pill,
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would be available not just at Planned Parenthoods
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and the dwindling number of abortion clinics in this country,
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but at pharmacies without a prescription,
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at walk-in health centers
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and on every college campus in the United States.
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(Applause)
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And if you had any doubt
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about the importance of getting politically active,
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we could also pass
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a constitutional amendment,
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what I call a gender equity amendment,
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that would guarantee to all persons
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the ability to make decisions not just about abortion,
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but about pregnancy and marriage
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and sexuality and parenting.
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And it would be a permanent part of the United States Constitution.
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Now the important part of that is
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these rights should not be controlled by politicians.
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They shouldn't be dependent on where you live
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or how much money you make
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or the color of your skin
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or the person you love
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or the pronouns you use.
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These are universal fundamental human rights,
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and they ought to be guaranteed in law,
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in the Constitution,
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so the Supreme Court cannot willy-nilly take them away.
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(Applause)
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Now to do this,
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we need to elect champions for choice
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to the 500,000 elected seats in our government in this country:
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everything from school boards to town councils,
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to state legislatures to Congress and the White House.
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All of those seats need to be controlled by champions of our cause.
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And that can only happen if you get politically active.
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Your vote, your willingness to work in campaigns,
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write postcards, make phone calls,
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knock on doors,
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can make that happen.
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And even run for office,
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because that's what we need to do.
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Now while dire, the end of Roe is not the end of the story.
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To paraphrase Joan Baez,
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the best antidote to despair is action.
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And your action,
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your willingness to work hard
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cannot only preserve reproductive freedoms for ourselves
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but for our children as well.
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So let's do it.
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Thank you.
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(Cheers and applause)
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