Front Burner - Roe v. Wade at stake in Mississippi abortion case

Episode Date: November 29, 2021

This week, the U.S. Supreme Court will hear arguments in one of the most important cases on reproductive rights in decades. Jackson Women's Health Organization, the last remaining abortion clinic in Mississippi, has challenged a state law that would ban abortions after 15 weeks of pregnancy. The Supreme Court case could determine not just the fate of the clinic, but of the monumental 1973 ruling Roe v. Wade, which legalized abortion nationwide. Today, legal historian Mary Ziegler breaks down the Mississippi case, and explains what its potential impacts could be for reproductive rights across the United States.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Angela Starrett. Hi, I'm Angela Starrett. Abortion is health care.

Health care is a right. Abortion is health care. Health care is a right. The war over abortion has seethed for decades in the United States. Good evening. In a landmark ruling, the Supreme Court today legalized abortions. In 1973, the U.S. Supreme Court made abortion legal nationwide with a monumental ruling in Roe v. Wade. The majority in cases from Texas and Georgia

said that the decision to end a pregnancy during the first three months belongs to the woman and her doctor, not the government. Since then, abortion opponents have been fighting to overturn it through a series of legal challenges to give power back to individual states. A late-night 5-4 vote allows the country's most restrictive abortion law to stand in Texas. Justices denying the request to block the law.

A seismic shift on abortion rights. The most restrictive abortion law in the country went into effect in Texas. That fight is raging across the American South. The Supreme Court has now agreed to take up a Mississippi case on limiting abortion rights. It is viewed by court observers as an opportunity for the Supreme Court to possibly take a relook at Roe versus Wade. With a crucial battle that's playing out on the steps of the last remaining abortion clinic in Mississippi, the Jackson Women's Health Organization, also known as the Pink House. Almost daily, you can hear anti-abortion activists railing against the women trying to get

inside. The average day is basically busier in the mornings as far as anti-abortion, quote unquote, protesters go. I say that because I'm all for the right to protest, but these people step beyond that. That's Kim Gibson. She's a volunteer with a group called the Pink House Defenders. Every day, they stand outside the bright pink building waiting to escort patients from their cars to the doors of the clinic. It can be intimidating when you have, you know, 50 people out there all wearing camo and screaming at you with big ugly signs and telling you not to murder your baby or you'll still be the mother of a dead baby. It's basically to try and distract them from the patient, you know. So if they're yelling at me,

they're not yelling at the patient across the parking lot. So sometimes we can... The Pink House sees over 3,000 patients a year. They come from all across the American South, where access to abortion is increasingly difficult. It can be hectic between the number of patients, the number of antis. It can be loud. They have a speaker, you know, or a bullhorn. They're yelling at patients. We'll turn some music on, try and block some of it out, which it can be hectic. So it's nothing that should be going on outside of a medical facility.

No one should have to put up with harassment, intimidation to get to the door of a doctor's appointment. But here we are. One of the people who's often in that crowd, the people Kim refers to as the aunties, is a man named Keith Dalton. He's a pastor, a musician, and a father of five. Whenever I felt the call of the Lord to do it, and you know, that's hard to explain unless you have faith in Christ. You know, it's kind of hard to explain what that's like. I just knew that I definitely believed in life. I definitely believe that science said when life begins, but God says when life, when value begins.

Dalton doesn't just want to regulate or limit abortion. He wants to abolish it completely. So I don't think there's ever an exception that allows the unjustifiable need to kill somebody or what I would call murder. I don't think there's ever a reason. These clashes, of course, are nothing new. But right now, they're coming to a head. On December 1st, the U.S. Supreme Court will hold one of the most important hearings on abortion in decades, Dobbs v. Jackson Women's Health Organization, aka the Pink House. The clinic has challenged a Mississippi state law that would ban abortion after 15 weeks. And the case could determine the fate of not just the Pink House, but of Roe v. Wade itself. Today on FrontBurner, we're talking to legal historian

Mary Ziegler about this case and what its impact could be across the United States in the fight for abortion rights. Hello, Mary. Hi, thanks for having me. Thank you so much for joining us. Before we get to the conversations around the Supreme Court, I want to understand the ruling that's being appealed here. Why did Mississippi decide to outlaw abortion after 15 weeks of pregnancy? Well, it's a little bit of an odd story. Mississippi's claim is that fetal pain is possible at 15 weeks, and that's not particularly remarkable among U.S. abortion laws. There are a number of other states that ban abortion at 20 weeks on that basis. The best science indicates that that fetal pain is impossible until the third trimester. So these statutes mostly don't seem to have a great foundation. There's some evidence that Mississippi moved from 20 to 15 weeks just so it could say it was the most restrictive state in the nation at the time that this law was passed, even though it's nominally a law about fetal pain. at the time that this law was passed, even though it's nominally a law about fetal pain.

And just to be really clear, when we say 15 weeks, we're talking weeks since a person's last menstrual period. Can you just briefly explain why this number 15 weeks is such a point of contention here? Well, it's a big deal legally, because in the United States, the right to choose abortion, which is a constitutional right, applies until fetal viability, which is the point survival is possible outside of the womb. That's what the Supreme Court's held. And that varies, obviously, depending on the pregnancy and the hospital and the technology that's available. But it's somewhere between 21 and 24 weeks, obviously well after 15 weeks. So the Supreme Court in taking this case is going to have to resolve whether Mississippi can do this either because there's no right to choose abortion at all or because states actually can start to ban abortion before viability, which would require

rewriting Roe v. Wade. So in other words, the only way the conservative majority of the Supreme Court can side with the state, as many expected to do, is to say that Roe was either wrong entirely or partly wrong. And either of those things is obviously a very big deal. I want to talk a little bit more about this 15 weeks number. Diana Green Foster. She was the principal investigator on this big 10-year-long study known as the Turnaway Study, which looked at the lasting consequences of either having an abortion or being denied one. And it did that by comparing women who had abortions really close to the deadline allowed by a clinic with women who had just missed that deadline and were turned away. And she says it's easy to demonize people who have abortions after 15 weeks. But here's what she and her colleagues found in this study. I think people are in favor of gestational limits because they have some idea that people are just sitting around wasting time and not getting their abortions.

But that is not what we find. What we find is that getting an abortion, especially in the United States, is very difficult. It can involve traveling hundreds of miles. It can involve doing that trip multiple times. And we have laws that make people have to pay out of pocket for the whole cost of the procedure. And then added on to that, there's this problem that some people don't recognize right away that they're pregnant. And I think there's also a lot of misunderstanding around that, the idea. Why is this important context to consider here? Well, I think often people will frame the U.S. as an outlier because the U.S. does at the

moment allow abortion until viability. And for example, if you look at parts of Europe, there are limits after some point after the first trimester. Sometimes it's 12 weeks, sometimes it's 14 weeks. And I think what Dr. Foster points out is that one of the reasons for that is that the U.S. doesn't have universal health care. So for people even to get the resources together to pay for an abortion, much less to be able to travel sometimes hundreds of miles, sometimes out of state, and to pay for all the things that would require, whether that includes transportation, that includes child care,

that includes time off of work. And interestingly enough, actually, the history of viability as the dividing line had to do with very much that concern includes time off of work. And interestingly enough, actually, the history of viability as the dividing line had to do with very much that concern because Harry Blackmun, who was the author of the Roe opinion, initially wanted to make the limit 12 weeks in the United States. But Thurgood Marshall, his colleague, who had been a prominent civil rights attorney and was a person of color, argued to Blackmun that that wasn't enough time for low income people of color who didn't have health insurance to get together the resources to pay for an abortion. So

we tend to see abortions in the second trimester, while they are rare in the United States, being concentrated among either people with medical concerns, like intended pregnancies that are not going according to plan or people who have fewer resources who are unable to get together the means to pay for an abortion or access an abortion until later in pregnancy. And I was just talking to my producer that, you know, when states are outlawing abortion, it doesn't mean that women are just not having them. It means that they're traveling or even getting dangerous, quote unquote, back alley abortions elsewhere. Right. I mean, I think we're it's not clear what the back alley will look like in America or does look like now that, you know, technology has changed.

Obviously, one avenue that's available now that was not available before is medication abortion. But even there, there's this sort of dangerous aspect to it. So there are organizations, NGOs that will send medication abortion to countries where abortion is illegal. We would assume that would apply to states as well if Roe is overturned. The tricky thing, of course, is that medication abortion can be used safely to self-manage an abortion if you use it appropriately and with medical guidance. But of course, some of the people who don't easily have the resources to access abortion don't have access to the internet, right? Don't necessarily have information about how to manage an abortion themselves in a safe way. And so there definitely

are concerns that people will continue to have abortions and will either, you know, use unsafe techniques like using abortion medication too late in pregnancy or using other kind of at-home methods, or that, you know, frankly, people who do have complications, which can happen even when you use a safe technique at home, will not go to the hospital because they'll be afraid of, you know, criminal consequences if they have had an abortion. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization.

Empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income?

That's not a typo, 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. So let's talk more about this court case. What is the question that Supreme Court justices have to answer here? justices have to answer here? Well, the court, interestingly, is focused on the question of whether you can ban, whether states are ever allowed to ban abortion before viability, right? And what's striking about this too, and a thing to remember about the U.S. Supreme Court is the U.S. Supreme Court does not have to take any case. So it's not a situation where sooner or later the Supreme Court was going to have or immediately had to resolve any case. So it's not a situation where sooner or later the Supreme Court was going to

have or immediately had to resolve this case. It reached out to choose this case, which suggests that it's going to say that you can, in fact, ban abortion at least some of the time for fetal viability. And that's going to mean a sea change in U.S. law and practice. And what are the basic arguments the court will be weighing here? Well, there's really sort of two sets of arguments, but most of the focus, I think, of both parties is on whether the court should overrule Roe or not, because I think people rightly understood that the court's interest in this question about viability signaled that they may be willing to get rid of Roe altogether. So it'll be it'll

be interesting to see to what extent the court is focused, sort of zeroed in on this viability question or whether it's more focused on the fate of Roe more broadly. You'll likely see arguments from Mississippi about the original public meaning of the 14th Amendment, essentially the idea that the people who wrote the 14th Amendment, essentially the idea that the people who wrote the 14th Amendment didn't think there was a right to choose abortion. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,

nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws. Any person within its jurisdiction, the equal protection of the laws. Any person within its jurisdiction... But you'll also see a variety of arguments that essentially boil down to Roe has damaged American society. So if you're going to overturn a precedent that old in the United States, in theory, you're not just supposed to be able to say it was wrong. There has to be some other additional plus factor weighing in favor of overruling.

And so Mississippi is going to lay out what it sees as all the damage that Roe has done. You're likely to see the Jackson Women's Health Organization, the abortion providers, attorneys arguing that Roe is not a constitutional outlier at all. And that, in fact, if Roe was wrongly decided, that the same would apply to lots of other venerable constitutional rights in the United States, like the right to use contraception or the right to marry, certainly the right to same-sex marriage. And they're going to be leaning, I think, much harder on the court's respect for precedent, in part because everyone assumes this is a conservative Supreme Court, so you're not going to see a lot of, you know, really stirring arguments about women's rights

because there's an assumption that these justices wouldn't care and that they would be much more concerned about these sort of institutional arguments about the court's reputation, the court's practices, the court's treatment of precedent than they would about, you know, the human rights of women. Do you agree with Justice Scalia's view that Roe was wrongly decided? I think on that question, you know, I'm going to invoke Justice Kagan's description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs up or a thumbs down. And I think in an area where precedent continues to be pressed and litigated, as is true... Senator, again, I would tell you that

Roe versus Wade decided in 1973 as a precedent of the United States Supreme Court. It has been reaffirmed. The reliance interest considerations are important there. Well, as a general proposition, I understand the importance of the precedent set forth in Roe v. Wade. And I mean, Texas recently passed a law banning abortion even earlier after six weeks of pregnancy. The law forbids abortions after cardiac activity is detected, typically at six weeks, and allows citizens to sue anyone who assisted someone to get an abortion after that time. But why do many people on both sides of this debate see this Mississippi case as potentially more consequential? Well, in part, it's because the Supreme Court limited pretty heavily what it

was talking about in the Texas case. So the Texas law has absolutely been consequential. But the Supreme Court in that case made a point of not really addressing abortion in the case. Essentially, all the questions the court has been focused on were procedural questions, basically. So Texas had this very unusual strategy for restricting and banning abortion. Essentially, they outsourced enforcement to private citizens. And the question really the court was interested in is, can you do that? Right. Can you kind of nullify a constitutional right by letting anyone like quite literally anyone sue other than the government? But that didn't really get into the ultimate fate of Roe v. Wade, because that question could apply to any constitutional right, not just the right to abortion. Whereas Mississippi's case is squirrelly about the fate of Roe. And again, the court took a case that forces them to rewrite or reverse Roe when they didn't have to do that, which suggests that they're seriously considering doing just that. you know, doing just that. And it seems like part of the threat, the potential threat to Roe here also has to do with the makeup of the Supreme Court, which now has a conservative majority

because of some recent appointees by former President Donald Trump. Can you can you tell me a little bit about that? Yeah, absolutely. So I mean, obviously, you know, Supreme who's on the Supreme Court matters. And I think there was an argument that, you know, it was always true that conservatives were expected to place Roe skeptics on the court. Donald Trump was unusual in the sense that he actually promised in his words pro-life justices. Right. This was not there was no sort of dog whistle in this case. He was pretty clear about what he wanted to do. Do you want to see the court overturn? Well, if we put another two or perhaps three justices on,

that's really what's going to be, that will happen. And that'll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this, it will go back to the states and the states will then make a determination. Secretary Clinton. Well, I will say this, it will go back to the states and the states will then make a determination. Secretary Clinton. Well, I strongly support it. What's significant as well is that there are six conservatives on the court, not just five, which means that it doesn't almost matter if one of these conservatives defects because there's more than enough to get to five votes,

which is what you need to get an outcome in a Supreme Court decision. So I think Donald Trump's transformation of the court has been, you know, absolutely necessary to what we're seeing unfolding when it comes to abortion. Let's say the outcome here is that we do ultimately see this ban upheld. What then? What could the immediate consequences be? Well, there's almost like a variety of ways, right? So the most obvious way could be the Supreme Court just saying Roe v. Wade was wrongly decided, right? And reversing it in a clear, straightforward way. I think most people expect that day to come, but they don't necessarily think it's going to come

in this case, which will be decided just to be clear by June of 2022. It's only going to be argued in December, not decided. But I think it's more likely the Supreme Court will uphold Mississippi's law, but not say that Roe is gone that quickly. But I think really, for the most part, we're looking at a question of, you know, when the court overrules Roe. It would, I think, really shock people if the Supreme Court didn't ultimately get to that point. It's just a question of how long it takes. Right. And when you're talking about, you know, a possibility for there being no more right to choose, as I understand it, there are 11 states that have, quote unquote, trigger laws that would immediately ban all or nearly all abortions, depending on what happens here in this

Mississippi case. Can you explain that to me? Yeah, I mean, we there's a variety. So some states have trigger laws between 20 and 25 states would criminalize all or most abortions pretty quickly after Roe is gone. The final number would likely be higher than that because, of course, there are other states, you know, the proverbial swing states where the outcome wouldn't be that clear ahead of time. But ultimately, it would be a large swath of the United States where abortion would be illegal. Wow. That's that sounds tremendous to me. Yeah. I mean, it's hard to process, I think, because in some ways, people who study this, I mean, this is obviously a long time coming in the sense that, you know, the anti-abortion movement has been working toward this since 1973. And so obviously, as someone who studies this, it's not entirely

surprising to me that we're at this moment, but it also is totally hard to process and understand even after having studied it. So I'm sure it's pretty mind blowing for almost everybody. after having studied it. So I'm sure it's pretty mind blowing for almost everybody. And so whether the Supreme Court rules to uphold this Mississippi law, or if the judges decide that the 15 week ban is actually unconstitutional, is that the final word? Would that mean the fight is over? No, I mean, there's really no scenario in the United States where the fight is over. I mean, I think that if the Supreme Court reverses Roe entirely, I don't think this the fight would be over then either. I think we would see the pro-choice movement come back with different strategies, probably primarily political ones. We would see the anti-abortion movement again demanding outright bans on abortion rather than just allowing each state to do its own thing. So I think that for the foreseeable future,

really, there's going to be an abortion war in the United States and nothing is going to change that. And so it's impossible for the Supreme Court to resolve this, really, whatever it says in this case. Mary, thank you so much for your time and taking us through this story today. Really appreciate it. Yeah, thanks for having me. That's it for FrontBurner for today. I'm Angela Starrett, in for Jamie Poisson.

We'll talk to you again tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.