Consider This from NPR - A Supreme Court Case That Could Upend Roe v. Wade

Episode Date: December 1, 2021

Getting an abortion in Mississippi has never been easy, but it hasn't been impossible. Now, a case before the Supreme Court that centers on a clinic in Mississippi could upend abortion rights for pregnant people across the country. Today, the conservative-leaning court heard arguments in the case of Dobbs v. Jackson Women's Health Organization. The clinic, which is the only abortion provider remaining in Mississippi, is challenging a 2018 state law that bans termination after 15 weeks of pregnancy. If the court upholds the law, it would reverse its own precedent by allowing states to interfere with the right to abortion at that stage of pregnancy. NPR Chief Legal Affairs Correspondent Nina Totenberg, SCOTUS Blog's Tom Goldstein, and Florida State University Law Professor Mary Ziegler parse the arguments and weigh in on the possibilities on how the justices could rule.In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Back in 2006, in my early days as a reporter, I was assigned to do a story on an abortion clinic in Mississippi. Actually, it was the only abortion clinic in Mississippi. Still is. It's called Jackson Women's Health Organization. Good morning, young ladies. How are you guys doing today? I found my way into a room full of women contemplating abortion procedures. And part of that process was for doctors to share information from a state-mandated script. This is the voice of Dr. Joseph Booker. My name is Dr. Booker, and this morning we have to give you some information that the state requires us to give

you. Booker has since passed away, but at the time this was part of his job. And for the women who were listening, it was one of many steps in the process of seeking to end a pregnancy. The scene outside the clinic was another. People who lined up on the street outside trying to change their minds. Jesus wants to help you this morning. Anything we can do to help, we're going to be here for you. We're praying for you. The road to that street corner was longer for some, who had traveled long distances from rural counties to get to the state capitol.

Add to that the 24-hour waiting period that was required as well, and the roadblocks to terminating a pregnancy were significant. At the time, I asked a consultant at the clinic, Betty Thompson, how the patients described it. I have to get somebody to get my children ready to go to school, or I have to hire an extra sitter when I was staying home with my child because I can't bring the child. The list was long. Get somebody to drive me. Then I've got to pay them.

Then that may, I may have to look far and few between for somebody who's willing to come over here and fight through this maze outside to get me inside or to drop me off or to have their tag numbers taken down. And this was 15 years ago. Getting an abortion in Mississippi has never been easy. But it hasn't been impossible. Oh yay, oh yay, oh yay.

But that could change. God save the United States and this honorable court. Today, the Supreme Court heard arguments in a case that is the biggest challenge to Roe v. Wade in decades. We will hear argument this morning in case 19-13-92, Dobbs v. Jackson Women's Health Organization. At the center of the case is that lone abortion clinic and a 2018 Mississippi law that bans abortions after 15 weeks. Mississippi's ban on abortion two months before viability

is flatly unconstitutional under decades of precedent. Roe v. Wade and Planned Parenthood v. Casey haunt our country. For a state to take control of a woman's body and demand that she go through pregnancy and childbirth. They have no basis in the Constitution. They have no home in our history or traditions. With all the physical risks and life-altering consequences that brings. They've damaged the democratic process.

They've poisoned the law. They've choked off compromise. Is a fundamental deprivation of her liberty. Consider this. Abortion rights opponents have been working for decades to chip away at legal access to end a pregnancy. And today, the arguments and a majority conservative Supreme Court that could upend the U.S. abortion law as we know it are here. From NPR, I'm Adi Cornish. It's Wednesday, December 1st. This message comes from WISE, the app for doing

things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today, or visit WISE.com. T's and C's apply. It's Consider This from NPR. All right, let's look at the Mississippi law in question here. The law, which was struck down in the lower courts, bans abortions after 15 weeks of pregnancy. And currently, under the 1973 ruling known as Roe v. Wade, women are guaranteed the right to have an abortion up until fetal viability, the time when a fetus can survive outside the womb, which is often debated but is generally accepted to be at 24 weeks.

If they uphold the law banning abortion starting at 15 weeks, we have to be clear, no matter what the court says, that the court has overturned Roe. Priscilla J. Smith is a professor at Yale Law School and a supporter of abortion rights. The central tenet of Roe is the availability of abortions up to viability. She told NPR that if that threshold is gone... We don't know what the line is. Can they ban it all through pregnancy? Can they go 15 weeks? Can they go six weeks? Which is what Mississippi's proposed also. Now, if the court does overturn Roe v. Wade, about a dozen Republican-led states have trigger laws that would automatically go into effect and

ban abortion, meaning Mississippi would be the state that tips the scales for the entire country. Well, I hope we are, because I am a pro-life advocate. Phil Bryant is a former governor of Mississippi who signed that 15-week bill into law three years ago. And he told NPR he's glad to see his state front and center in this debate. We would be prepared and are prepared to challenge Roe v. Wade because like many better legal minds than mine, it says that the Constitution does not guarantee the right to an abortion. And that's effectively where the argument stood this morning before Supreme Court justices, with Mississippi Solicitor General Scott Stewart arguing that abortion is not a constitutional

right. A right to abortion is not grounded in the text, and it's grounded on abstract concepts that this court has rejected in other contexts. And the attorney for the text, and it's grounded on abstract concepts that this court has rejected in other contexts. And the attorney for the clinic, Julie Rickleman of the Center for Reproductive Rights, arguing that that 24-week marker isn't arbitrary, but that it's an important part of how Roe v. Wade is measured, enforced, and understood. If the court were to move the line substantially backwards, and 15 weeks is nine weeks before viability, Your Honor, it's quite a bit backwards. It may need to reconsider the rules around regulations, because if it's cutting the time period to obtain an abortion

roughly in half... And this will all come down to what a majority of the justices decide. What you do have here is three possibilities. Tom Goldstein is the publisher of SCOTUSblog and a noted Supreme Court litigator. He says there are a few options on the table. Striking down that Mississippi law and upholding Roe v. Wade as we know it. Overturning Roe v. Wade and letting the Mississippi law stand. Or to take another approach altogether. And to get some sense of that, Goldstein says he was most interested in the justices who asked very specific questions, including Chief Justice John Roberts and Justices Brett Kavanaugh and Amy

Coney Barrett. And we got real clarity from two of them. The first was the chief justice suggesting that he would get rid of the viability protection for the abortion right, but not go all the way to overrule Roe. And that ended the debate about whether the law would stay the same, because the liberal justices needed to pick up two of their more conservative colleagues. That was always in doubt, and that closed the door to that possibility. There do not appear to be five votes to uphold Roe v. Wade as we have known it over the last nearly half century. That, of course, is NPR's chief legal affairs correspondent, Nina Totenberg. I spoke with her and Tom Goldstein and Mary Ziegler, Florida State University law professor, and they all helped us parse the arguments and the questions the justices are facing now.

For instance, I asked them about that moment that we heard earlier from the attorney representing the state of Mississippi, Scott Stewart. A right to abortion is not grounded in the text, and it's grounded on abstract concepts that this court has rejected in other contexts. I'm not sure if I can bring in both Tom and Mary in this for this moment, but that's kind of going right to the jugular, so to speak, in talking about this as a right. How did you hear about how long they spent talking about this, the questions that might have been raised about it later? So this is the big picture. There's a big debate about the meaning of the Constitution and whether there's an abortion right in it at all. And this is the big conservative complaint about Roe and about Casey, that it's basically judges just making it up. And he's

returning to the theme, which runs through the conservative counterattack on Roe, that this is, you know, we have a constitution and the constitution doesn't say anything about this. And it's, to some extent, Justice Kavanaugh's point about staying neutral. And that is the constitution is neither pro-life nor pro-choice in that view. And of course, the pushback is that the constitution says a huge amount about individual liberty. And there are lots of other things like a right to contraception that you can't find in it either. But this is the big, big, big fight over the core meaning of the Constitution. One of the interesting things was that all of the conservative justices in different ways were interested in sort of limiting the idea that the Constitution recognizes some interest in autonomy or privacy.

Justice Kavanaugh in his question seemed to suggest that you could hold that there was no right to abortion without necessarily, for example, overruling Obergefell versus Hodges, which he framed positively, the decision recognizing access to same-sex marriage. Clarence Thomas in his questions, I think, was suggesting kind of the contrary, that there are problems with thinking there's any kind of implied right to privacy, full stop, including in other contexts. So the way I read it in a way is I think Justice Kavanaugh is interested in reversing Roe, but imposing some sort of limiting principle to suggest, you know, we're not going to, for example, hold that the fetus is a person and that abortion is unconstitutional or that all privacy decisions are suspect, whereas I think Justice Thomas may be inclined

to or open to both of those positions. So I think that's really kind of what we're looking at in terms of the range of outcomes going forward. Yeah, I think if you get past Roe, that is the next question. You know, the right to contraception, the right to marry, even, you know, into the late 1960s, there were many states that banned interracial marriage. The right to determine the religious upbringing of your children, the right to all of those kind of personal rights. Some of them are grounded in the right to privacy. Some of them are grounded in the right to all of those kind of personal rights. Some of them are grounded in the right to privacy. Some of them are grounded in the right to autonomy. But various branches of the conservative legal movement

have wanted to get rid of a lot of those rights. Not the right to speak, but other rights about your bodily integrity and your ability to determine how you conduct your life. And the question here is, where is this court going to go after it gets rid of abortion rights? Or can it limit even getting rid of abortion rights to 15 weeks or 12 weeks? Nina, I want you to give us a sense of what the atmosphere was like in the courtroom. Well, it was very somber. There was only one little joke, I think, all day when Justice Barrett and Justice Kagan both started to ask a question, and Kagan said to Barrett, no, you go first.

And there was sort of laughter about this, but it was very somber. I would say unusually soft-spoken by everybody, and everybody was on their sort of best behavior. There wasn't, you know, justices can bully counsel from time to time. There was none of that kind of behavior today. It was very, everybody understood the stakes. They spent a long time thinking about this and dealing with this. And I think each and every one of them has a pretty good idea of where they're going to go and whether or not they're going to win or lose. That's NPR's chief legal affairs correspondent, Nina Totenberg, Florida State University law professor, Mary Ziegler, and SCOTUSblog's Tom Goldstein.

And you're listening to Consider This from NPR. I'm Adi Cornish.