Consider This from NPR - The Road To Overturning Roe v. Wade

Episode Date: May 7, 2022

Earlier this week, a leaked draft opinion from the Supreme Court suggested that after nearly 50 years, the court intends to overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide. Almost as soon as abortions became legal, opponents began organizing efforts to repeal the law. Eighteen states now have so-called "trigger laws" that will ban abortions the moment that Roe v. Wade is overturned or pre-"Roe" era bans that remain on the books, ready once again, to fall into place.We'll look back at the longstanding efforts by legal, political and religious groups - on both sides of the debate - that have led to this moment. And we'll discuss what comes next. In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail]. Audio in the podcast from Supreme Court arguments of Roe v. Wade was obtained from Oyez.org multimedia archive.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from Indiana University. Indiana University performs breakthrough research every year, making discoveries that improve human health, combat climate change, and move society forward. More at iu.edu slash forward. No matter what side you're on, by now just about everyone who cares about current events has heard about the leaked draft opinion indicating that the Supreme Court is poised to overturn Roe v. Wade, the landmark opinion that legalized abortion a half a century ago. For some, it's a moment to celebrate and prepare for what comes next. Abortion and Roe v. Wade has been our Goliath.

Okay, so now we've slain Goliath, presumably. So after you've slayed Goliath, there are still a lot of Philistines. Terry Herring has been fighting to end legal abortion for more than three decades. She heads Choose Life Mississippi and directs the state chapter of Americans United for Life. Even before the leaked draft, the anti-abortion movement was gaining victories as lawmakers and states hostile to abortion rights chipped away at the ability to access an abortion, chiefly by adding regulatory requirements to perform or obtain one, such as waiting periods, additional exams, specific equipment requirements, and so forth.

But the battle to end abortion rights has been going on almost since the moment the court rendered its opinion in Roe. We'll hear arguments in number 18, Roe against Wade. Mrs. Weddington, you may proceed whenever you're ready. Chief Justice Warren Burger opened oral arguments for Roe v. Wade in December 1971. Sarah Weddington argued the case in front of the Supreme Court on two separate occasions, the first time at just 26 years old. Here she is in October 1972. Mr. Chief Justice, and may it please the court,

we are once again before this court to ask relief against the continued enforcement of the Texas abortion statute. Weddington argued that a Texas law making abortion illegal, except by a doctor's orders to save a woman's life, was unconstitutionally vague and abridged the right of personal privacy, a right which she said was inherent to the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual. In 1973, the Supreme Court agreed, by a 7-2 majority, that the 14th Amendment does provide a fundamental right to privacy

that protects a pregnant person's choice to have an abortion from state action. But the leaked draft opinion states that, quote, Roe was egregiously wrong from the start, unquote. And that has supporters of a more expansive view of civil rights questioning not just the future of abortion rights, but also the broader implications of the decision to overturn a half-century-old precedent. At its core, Roe recognizes the fundamental right to privacy. That's Vice President Kamala Harris commenting on the leaked draft opinion at an appearance at a conference for EMILY's List, a group formed to offer financial support to women

candidates who support abortion rights. She warned that overturning Roe could open the door to a much broader erosion of rights. Think about that for a moment. When the right to privacy is attacked, anyone in our country may face a future where the government can interfere with their personal decisions. Not just women. Anyone. Consider this. A final opinion on abortion rights cases before the Supreme Court is expected this summer. And while it could differ from what's contained in the draft leaked to the press, the fight to overturn Roe has been decades in the making. We'll take a look at how we got to this moment. That's coming up.

From NPR, I'm Michelle Martin. It's Saturday, May 7th. It's Consider This from NPR. So how did we get here? Though the leak of the court's draft decision came as a surprise, the decision itself did not, at least not to those who kept their eyes on the issue. The reversal of Roe has been a top conservative project for years, steered by academics and activists, facilitated by Senate Republican Leader Mitch McConnell, and cemented by President Trump's election to office. David Kaplan is a former editor at Newsweek and the author of the book The Most Dangerous Branch, Inside the Supreme Court in

the Age of Trump. And he says this is the most radical Supreme Court in a century. An overturning role may just be the beginning. In their decisions over the last 15 years, when they largely gutted the Voting Rights Act, when they largely got rid of McCain-Feingold campaign finance, when they got rid of the District of Columbia's gun control law, the court has demonstrated disdain for what other branches have done. And the irony, of course, is that in those rulings, the court ignored what the, quote-unquote, people's elected representatives wanted to do.

And then, of course, now in overturning Roe in this draft opinion, we hear Sam Alito talking about fidelity to the people's elected representatives. I would use, less the word radical, I would use the word hypocritical. So talk about how we got to this point. I mean, it's not escaped anybody's attention, I think, who's following this issue that this court has become the focus of so much attention. There's a recent, you know, confirmation hearings have become so sort of poisonous. Nobody seems to be happy about the tenor of them, the digging into people's pasts, this sort of thing. I mean, I don't, nobody seems to be happy about the process. And that's a reflection of the fact that the court is sort of at the focal point of these very difficult issues. So how did we come to that? Well, we got to this point because we've had a triumphalist court, I argue in the book, for 50 years. And whether you're a liberal politically or a conservative, I think that's a bad thing. I think for better and for worse, we ought to be leaving

most of our tough social issues to the political branches. You don't have to think well of Congress, and I surely don't these days, to think that they are still the most legitimate branch of government to be resolving these issues. And I argued in the book that Roe, in the first place, should not have been considered by the court 50 years ago. They should have ducked the issue. That isn't because I'm anti-abortion. If I were a legislator, I would vote for extremely lenient abortion laws. But it's because I don't think these issues belong at the Supreme Court. So is it your argument that the reasoning was specious and flawed?

I mean, that is Justice Alito's argument, that the reasoning in Roe was flawed. Do you agree with his reasoning, if not with his tone? Yes. As I argued in the book, the court shouldn't have gotten involved in the issue to begin with. Not every wise policy decision in the country is a matter of constitutional law. So I think the conservative brief from Alito and others that Roe was a bad decision is correct. But that's completely different from whether the court ought to change its mind simply because of a change in membership at the court. That is not what constitutional law is about. And that's

why we honor precedent, the doctrine of stare decisis. We hope that courts and courts traditionally have followed through to leave prior decisions alone, less constitutional law just be a headcount among Republicans and Democrats. That's what's so bad about this decision, not its critique of Roe v. Wade. So going forward, do you think this will affect future rulings? Of course, the argument now is that however much this draft ruling may deny it, people look at this and say that this presents a dangerous precedent for the erosion of other things that are now part of society, like same-sex marriage, for example, access to contraception, you know, for example, even interracial marriage, you know, for example. Do you think that that's true?

Yes. I'm not always known for my short answers, but I think in short, this court, this now radical conservative majority is feeling its oats. I don't think interracial marriage is at stake. I don't think contraception is at stake. I don't think there's much political will in the country to look at those issues. I'm inclined to think that's even true for same-sex marriage, but I think perhaps in other areas, you'll see this court unbridled. They will use their five votes to go after precedents they don't like. You know, the great liberal lion of the 20th century, William Brennan, liked to hold up his five fingers. If you talk to him, and I did over the years, he'd hold up his five fingers and say, you know, around here with five votes, you can do anything. He said it with a smile, but he was deadly serious. And I think the conservatives now firmly in control of the

court with five or six votes will take out that majority for a spin. They've done it here, and the court will survive. It'll survive the leak. It'll survive Roe. Its legitimacy will be eroded, but they still have the votes. That was David Kaplan. He's the author of the book, The Most Dangerous Branch, Inside the Supreme Court in the Age of Trump, coming up the role that evangelical Christians have played in framing the debate over abortion. In recent years, religious conservatives have been key to the conservative movement's efforts to overturn Roe v. Wade, and a critical part of that group are Christians who identify as evangelical. But while it's taken as gospel among political analysts that Roe has always been the

top priority of the religious right, historian and author Kristen Kobus-Dumé says that's not true. It is surprising to go back in time and not that long ago where there was certainly more of a spectrum of views on abortion. Now, I do want to emphasize that there's a long history of anti-abortion sentiment in evangelical spaces and in Christian tradition. So it would be wrong to say that evangelicals or that historical Christians were not certainly troubled over the issue of abortion. But in the late 1960s, we have this remarkable issue of Christianity Today, the flagship magazine of American evangelicalism, discussing this question of abortion. And the conclusion is that it's a very complicated moral issue. And yes, the Southern Baptist Convention comes out in favor of opening up access to abortion in many cases in 1971, and then they reaffirmed that in 1974 and in 1976,

so after Roe v. Wade. But what happens in the 1970s is, first of all, with the passing of Roe v. Wade, you see a spike in the number of abortions. And that causes many Americans, not just evangelicals, to kind of rethink, is this what we wanted? But I think more importantly, you have the rise of second wave feminism. And in conservative white evangelical spaces, a real backlash against feminism. And over the course of that decade, abortion becomes linked to feminism. And so you see the sentiments start to shift and from 1979 on that's when you see a real kind of shrinking of space within conservative

evangelicalism to have any view on abortion that isn't strictly and staunchly pro-life life begins at conception i'm still so interested in, and this is not to argue the point, but it is to ask why this over other issues, that this country's lack of access to routine health care, for example, particularly compared to that of peer nations, that's been a fact of life for years, and that has resulted in some terrible outcomes, where people whose lack of access to prenatal care has led to shocking maternal mortality rates in this country, particularly among black and brown women and indigenous women, right? And I'm just wondering why these issues have never surfaced to the same degree. I mean, one would think that if you adopt the perspective

that values and reveres the sanctity of life, then it would be across the life spectrum. But just the question of keeping women alive during and after childbirth would seem to be something that would have equal weight, but it doesn't. And I just wondered if you have a theory about why that is. You're right, it does not. Now, there is a minority of evangelicals, of white evangelicals who do embrace this holistic life commitment, including the death penalty and pro-gun legislation and pro-healthcare, universal healthcare, but that is a definite minority. Among many white evangelicals, their moral system is one that really embraces an individualistic ethos or ethic, really. And so they will say this is a life of a human being, and it's just a clear-cut case, and it is an innocent

life. And so in cases like the death penalty or even in sometimes this is extended to discussions of health care. Well, if you had been more responsible, if you had a higher income, if you, you know, there are things you could have done here. Whereas abortion, it seems very simple or even simplistic. But I should also add that we need to understand how abortion is also situated in terms of evangelical gender ideals. And for evangelicals, conservative evangelicals, gender difference is really foundational to their understanding of the social order. And they believe that God created men and women to be very different, even opposites.

And women's primary calling is that of wife and mother. And so abortion also really severs that kind of biological or social relationship or threatens to do so. And for that reason also, abortion is such a priority for evangelicals because it kind of strikes at the heart of their understanding of women and men and their understanding of how God has ordered society. So if Roe is overturned, as the leaked opinion suggests that a conservative majority will do, where do you think the focus goes next? The way the leaked opinion is written is it suggests that this matter returns to the states and the states, you know, certain states can outlaw abortion and

certain states will not. So what do you think the focus becomes after that? Certainly among conservative evangelicals, the focus will be at the state level. And I don't think the end goal, I know the end goal for conservative evangelicals wasn't simply returning this issue to the states, but it was eliminating the right to abortion across the board. It's also possible that with this victory or potential victory and with the majority on the court, they do turn their attention to other issues such as the Obergefell decision, gay marriage, or possibly also birth control. But, you know, we have to see how things work out in practical terms because the truth is, you know, many evangelical women have accessed abortion.

They have procured abortions. And so it's one thing to kind of hold these ideals in theory, even to vote for restrictions. But when the reality kind of sets in, it'll be hard to say how individual evangelicals respond. And if there isn't some maybe moderating of this, or perhaps we're going to continue to see further radicalization, it's really hard to predict. That was Kristen Covis-Dumé. She is a professor of history and gender studies at Calvin University in Grand Rapids, Michigan. Her latest book is Jesus and John Wayne. It's Consider This from NPR. I'm Michelle Martin. Audio of the 1971 and 1972 Roe v. Wade oral arguments is courtesy of Oye Multimedia Archive.