Front Burner - The end of Roe v. Wade, and what comes next

Episode Date: June 27, 2022

The constitutionally protected right to abortion was struck down by the U.S. Supreme Court on Friday, leaving millions of women in the U.S. with less control over their own bodies than they had the day before — and for nearly 50 years before that. Despite right-wing jubilation over the ruling, overturning Roe v. Wade may not be widely popular in the U.S.; recent polling by CNN suggests about two-thirds of Americans didn’t want it to happen. But there are so-called trigger laws on the books in at least 13 states that ban or severely limit abortion and come into effect virtually as soon as Roe v. Wade was overturned. Other states may also move to restrict or ban abortions soon. Today on Front Burner, UC Davis legal historian Mary Ziegler — author of Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment — discusses why the conservative-majority court overturned Roe v. Wade, why modern abortion bans have dangers not seen since the 1970s and what widespread criticism of the decision means for the perceived legitimacy of the court.

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 Jamie Poisson. Constitution does not consider a right to abortion. This is one of the sounds of the constitutionally protected right to abortion disappearing in the United States. Anti-abortion protesters are screaming with joy outside the Supreme Court on Friday,

where after 49 years, the court overturned the legal protections for abortion established in Roe v. Wade. Good by Roe! Good by Roe! We are the post-Growth generation! You know, pro-choicers, they say, we want to give women a choice, when really, they give women the choice of abortion. And we tell women, you can keep your baby and we'll help you. But over the weekend, the fall of abortion rights in the U.S. has also sounded like this. When women's rights are under attack, what do we do?

Stand up, fight back! The goal of a woman is what they want! It sounded like abortion clinic escorts in red states, terrified of what will happen when women don't have safe access to the procedure. We are looking at suffering and death. How should we feel? America is not ready for what's about to happen with the fall of Rome. In Arizona, it sounded like police firing tear gas into crowds of pro-choice protesters.

Because overturning Roe v. Wade isn't actually very popular in the U.S. Recent polling suggested about two-thirds of Americans didn't want this to happen. And trigger laws on the books in a number of states mean that women's ability to access abortion is already being rolled back. Almost a dozen states have now banned or severely restricted abortion, and about half of states are expected to do so soon. So today, I'm joined by UC Davis legal historian Mary Ziegler. She just released the book Dollars for Life, the anti-abortion movement and the fall of the Republican establishment. We're going to talk about why the court's conservative justices overturned Roe, why 2022 abortion bans have dangers not seen in the 70s, and what such an unpopular decision means for the legitimacy

of the court. Hi, Mary, thank you very much for making the time to come on to the podcast again. Thanks for having me. So I know you've been talking about Republicans' relentless campaign to overturn Roe v. Wade for years, including with us last year. But now it's actually happened. It's actually real. And does the fall of Roe still feel like a shock to you? I mean, yes and no, right? Obviously, as someone who studied the history of this for a very long time, I knew this was coming. At the same time, it's surprising to me, not surprising, it's just, it's hard to believe, I think. It's hard. It hasn't sunk in, I think, emotionally, I think,

for many people to believe that this is real is still hard. The right to abortion established in the original 1973 Roe v. Wade case relied on the right to privacy in the U.S. And I wonder, in simple terms, if you could tell me how that logic about privacy worked. Sure. So this was privacy, not in the sense of secrecy, but kind of privacy in the sense of autonomy or control. not in the sense of secrecy, but kind of privacy in the sense of autonomy or control. So the Supreme Court, really starting in the 1920s, had began recognizing related privacy claims to things like parents' decisions about how to raise their children, then later married couples and eventually individuals' access to birth control,

the right to marry, so these kind of life-changing decisions. access to birth control, the right to marry. So these kind of life changing decisions. And then the court in Roe v. Wade held that this right, this idea of a right to privacy was broad enough to encompass the decision about whether to have an abortion as much as it was the decision about contraception. And then so on Friday, when they overturned this, what was the logic that they were making here? Why did they say that Roe was a mistake? Well, the court's fundamentally saying that it has a different approach to constitutional rights. The court is saying that constitutional rights are shaped exclusively by tradition and history.

Of course, what tradition and history means are very contested, and whose tradition and whose history gets to count is contested. But this court is essentially saying it's the beliefs of the people who were governing the United States in the late 19th century, which, of course, is a particular group of people, men who were white, who were primarily Protestant and privileged enough to be able to govern. And at the time, those people were writing this relevant part of the Constitution. They would not have viewed abortion as a fundamental right. Therefore, abortion cannot be a fundamental right. fundamental right. Therefore, abortion cannot be a fundamental right. In fact, the court emphasizes that abortion was a crime. So I think that's essentially the logic, right, that we've been

thinking about our constitutional rights all wrong, and that our rights begin and end with what this small group of people governing in the 19th century would have thought. Right. This precedent, though, has been around for 50 years, obviously, and societal norms and harms caused by taking something away are, as I understand it, factors that judges should also consider, right? And so did the court, did they talk about that in their ruling? court, did they talk about that in their ruling? Almost not at all. The court says in passing, you know, usually most of the time when we thought about the cost of overturning a ruling, we were talking about business transactions when people planned long in advance and abortion just isn't the same kind of thing. Basically, people don't plan to have an abortion a long time in advance. It's not a business transaction. And then they say, well,

of course, some people are telling us that it will do tremendous societal damage to overturn Roe. And, you know, maybe they're right, maybe they're wrong. That's not really our job to worry about that. So legislators can sort out whether people will be hurt by this. It's not our concern. So there's very little about that. And I think, obviously, that's not an accident because if the court spent a lot of time thinking about the costs of overturning Roe, for the people who bear those costs, they might not have come to the same ruling. And I want to talk about those costs with you in a minute, but it's hard to ignore how the court voted along political lines

here. Today in a 6-3 decision, conservative justices did overturn Roe versus Wade. And considering this is something that you've looked at so closely, how are we seeing the Republican push to overturn Roe reflected in this result? Well, I think it's quite clear. There are lots of talking points from the anti-abortion movement that appear in this ruling. The court compares Roe to Plessy versus Ferguson, which was the notorious case upholding racial segregation in the 19th century. The court relies on historians favored by the anti-abortion movement and really cites almost no other historians. The court emphasizes that Roe created the political polarization in the U.S., and the way the votes broke down and the timing of the decision. It's worth emphasizing this was not a case that the Supreme Court really had to resolve. There was no dispute in the lower courts about whether laws like this were constitutional.

So this was sort of reaching out an activist decision to want to resolve this rather than something the court really had to deal with. activist decision to want to resolve this rather than something the court really had to deal with. And I think there's a sense in which the language of the decision is powerfully that way as well. Can you tell me more about why you said that this wasn't something the court had to do? Sure. So generally speaking, the Supreme Court of the United States doesn't have to take any case, right? Everything is at its discretion. It decides to hear cases based on a process called certiorari. And often there's a sense that the court really should intervene when the next courts down on the ladder disagree about something.

So, for example, if half the country is hearing that something is constitutional and the other half is hearing that it's not constitutional. That's usually not considered to be tenable. And the Supreme Court is supposed to intervene and kind of give clarity. This Mississippi law at issue in this case had not been it was only one of a few such laws in the country. The state is asking the high court to overturn Roe as wrongly decided and uphold a state ban on most abortions after 15 weeks of pregnancy. There was no real sense in the lower courts that these laws were constitutional. And even when the Supreme Court agreed to hear the case, they weren't even originally supposed to be talking about whether Roe v. Wade would be overturned. And Mississippi only unveiled a more ambitious agenda when the court's composition changed and Mississippi

thought it might be able to get more from the court. Usually the court is reluctant to intervene when it isn't necessary to do so because the court is supposed to be there to resolve specific cases and controversies and questions, not to make policy. And this obviously has the feeling of policymaking. I want to talk about what this is going to look like on the ground now a little bit. A number of states had so-called trigger laws on the books, so they would immediately restrict abortion after Roe's overturn. So how is access to abortion already being affected right now? Well, many states with trigger laws have already begun enforcing them. have already begun enforcing them. There have been a handful that have announced that they're going to wait the 30-day period written into their law to begin enforcing their bans. And we know

that in short order, about half the states, a little more than half the states are going to be banning all abortions. And some of those laws are already going into effect. So there were people who had abortion appointments scheduled on Friday that were, of course, canceled because the Supreme Court had overturned Roe and those states immediately banned abortion. And of course, you know, it's worth emphasizing that the bans we see now are the starting point, not the end point. So we're likely to see more bans in more parts of the country and more draconian enforcement mechanisms in the states that already have bans. Tell me more about that. What do you think we can expect to see? Well, the challenge, obviously, for these states banning abortion is going to be that women can get

and other pregnant people, of course, can get abortion pills. And if that's true, then it's going to be very hard for states to stop abortions from happening. At the moment, states are simply saying you can't perform an abortion in this state. And then they're imposing pretty harsh criminal penalties ranging from one year to life in prison for people who perform abortions. But we know that it's going to be hard for that alone to stop abortion. abortions. But we know that it's going to be hard for that alone to stop abortion. So the state, the question is going to be, how do these states know if people are having abortions? What kind of surveillance mechanisms are going to be in place for these states? We're going to wonder if states are going to try to prosecute people in blue states that are going to continue to allow abortion to try to shut down people who are

crossing state lines. We're then going to see questions about whether these states want to punish pregnant people themselves because they're unable to reach people who are performing abortions in blue states. All of that, I think, will be difficult. Yeah. And is it also fair for me to say that these laws that we're seeing, they're even more restrictive than what we were seeing before 1973, since the last time states could restrict abortion access, right? Like, when it comes to exceptions, I just wonder if you could give... Absolutely. They're more restrictive in a number of ways, right? So some laws before 1973, for example, made exceptions for rape and incest. Those have been eliminated. We've seen some Republicans campaigning on the idea that there

should be no exceptions for the life of the pregnant person. And I think most significantly, all of these bans, not all, but a lot of them carry much more sweeping penalties. So often in the pre-Roe era, when abortion was a crime, it carried often a sentence of something like three to five years in prison. And I don't mean to minimize that, that's serious enough, but these new penalties, some of them carry low penalties, relatively speaking, like that. Many others, we're talking 10 years in prison, 15 years in prison, 99 years in prison, life in prison. And so, of course, if you're asking a doctor to take that risk, there are many fewer doctors who are going to be willing to do that. And of course, that's going to have spillover effects, not just

for people seeking abortions, but people seeking care for incomplete miscarriages, ectopic pregnancies, and so on, where doctors are going to not be sure if a procedure will be defined as an abortion, and they're not going to want to risk, you know, 15 years in prison or life in prison, if they make their own guess. And is it fair for me to say that there might be more acceptance in some of these states of them, of it being more restrictive? In a way, yes. In a way, no. I mean, obviously, the other thing that's changed is that the United States is just less democratic. So there are certainly some parts of the South that do want bans on abortion, but there are many other parts of the South and the Midwest that

don't. Right. So Oklahoma, for example, has a majority of voters that would rather not ban abortions. There are any number of states like this, but the United States is more polarized. So voters are less likely to cross party lines, even if they're unhappy about abortion. They're probably not unhappy enough to vote for a Democrat. There are also states that are politically uncompetitive because of gerrymandering or voter restrictions. And so some of it is that the polarization has made it such that some states are welcoming of these restrictions. In other cases, polarization has made it such that states are not welcoming of these restrictions. Voters are not happy about it. And in some instances,

people are just unhappy altogether. But this is not something that they can do anything about. Right. I mean, this of course, this decision came to us, this Supreme Court decision, notwithstanding the fact that most Americans didn't want this to happen. Right. So this is not an example of, you know, Americans moving to the right on abortion. This is an example of, you know, the democracy eroding in such a way that Americans' views on abortion don't matter. Earlier, we talked about how the Roe decision relied on the right to privacy to guarantee a right to abortion. And you were talking about how other important precedents in the U.S. also relied on that, such as contraception. And I'm not sure if you mentioned this, but I think gay marriage as well, right? Yeah, absolutely. Well, so I think often people have criticized Roe for relying on the right to privacy. And what they forget is

that there's this entire network of privacy rights in American constitutional law on which Roe was founded. And that grew in part out of Roe. So those rights include birth control, same sex intimacy, same sex marriage, marriage, full stop, interracial marriage, the right to parent, the right to procreate. Right. So the right not to be forced to have an abortion or be sterilized. And we know in part that we might want to worry about these rights because Clarence Thomas, in a separate concurring opinion, basically says we should get rid of all of that stuff. And he would include quite literally all of it. The right not to be sterilized. He just would say all of that is up to the legislature. So the legislature wants to ban birth control and interracial marriage and same sex marriage and force certain people to get abortions. There's nothing wrong with that from a constitutional standpoint.

I don't think the other justices are ready to go that far. But by the same token, Justice Alito's methodology, right, the idea that we look only at the rights that would have been protected by white men who are governing the United States in the 19th century. at the rights that would have been protected by white men who are governing the United States in the 19th century. Of course, you know, unsurprisingly, contraception was criminalized at that time. Same-sex intimacy was criminalized at that time. Intimacy outside of marriage altogether was criminalized at that time. You know, certainly interracial marriage was criminalized at that time. So it's hard to see if the Supreme Court is being intellectually consistent, why it would stop with abortion. Justice Alito's answer is essentially abortion is different because it's the taking of a human life. That's possible. Maybe the court will go further in the direction of protecting fetal life, maybe even hold abortion as unconstitutional. But if the methodology of the court is as the court describes it, and this is not a policy judgment,

then there's no reason to think other rights are safe. And how worried are you about that? I mean, very. I think it's just a question of time, right? So do I think, I don't think there are the votes on the court today to overrule all of those other cases. And Brett Kavanaugh wrote a separate concurring opinion, essentially saying we're not going to do that. I have seen this movie before, though, and when the Supreme Court gives you these kinds of disclaimers about what it's not going to do, usually that's happening because there are enough people on the court who want to do just that thing. And second, that disclaimer usually doesn't last for very long. So I wouldn't be surprised if the court revisits these decisions down the road.

surprised if the court revisits these decisions down the road. Is it worth mentioning here that even on this decision on Roe, didn't Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch in their confirmation hearings all acknowledge that they thought Roe was an important president of the Supreme Court and now they've all decided to overturn it? Yeah, absolutely. I mean, I think, you know, the dissenting opinion in what I imagine is the language of Elena Kagan, because it very much sounds like her, says essentially that what the court and particularly Justice Kavanaugh have given us is something like scouts honor that they're not going to do these things. But of course, you know, as you mentioned, we know that the justices can and do say things that they're not bound by,

and then reverse course, which is exactly what this appears to be. 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 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. I want to end this conversation by coming back to what you were talking about earlier,

the state of democracy and institutions in your country. And for a guy who has had little to say about abortion rights in the past, Joe Biden called the decision a tragic error. But his plan of action was to tell people to vote in midterms in November. We need to restore the protections of Roe as law of the land. We need to elect officials who will do that. This fall, Roe is on the ballot. What recourse is possible to fight the Supreme Court decision or preserve abortion access? I keep hearing people say the fight has just started. What do they mean by that? There are, I think, different ways we can think about this. So one question is how can

people access abortion? And President Biden already emphasized the importance of travel. As the Attorney General has made clear, women must remain free to travel safely to another state to seek care they need. My administration will also protect a woman's access to medications like contraception, mifeprestone, which the FDA approved 20 years ago to safely end early pregnancies and is commonly used to treat miscarriages. There are services that are setting up on the borders of states that ban abortion to offer abortion services in mobile clinics. There are people in other countries as well as in the United States who

are going to mail pills to people in states where it's illegal to have an abortion. And there are, of course, going to be states that hold themselves out of sanctuaries that make it easy to travel to get an abortion. I think all of those things are going to be happening. And then I think on the other side of things, right, then you have, can the Supreme Court decision be reversed? And of course, yes, it can. I mean, but there you were talking about not just replacing justices, which of course is possible, right? It would also require the kind of movement that we've seen on the right to get rid of Roe, right? A kind of nationwide push that makes clear that people don't just say they support abortion rights when they're answering a poll, that they actually care about this enough to vote on that basis.

It's certainly not the case that the Supreme Court can settle the abortion debate. But I think the question really is whether people who are progressive, are they going to match the efforts of conservatives? How much do they care, basically? That's really what this comes down to in terms of the future of abortion rights in the United States. Okay. And ultimately, final question, what do you think this ruling could mean for the court's power, even legitimacy in the U.S. and how it could potentially contribute to that fraying of democracy? Well, the court's popularity has already been seriously, and I mean, legitimacy, I think, has seriously been damaged. The court has had its lowest approval rating in the history of anyone measuring it, I think as low as 25%.

The court's reputation was already damaged before the court had done anything to abortion or guns. So I think that the court's institutional legitimacy has been damaged because the court is perceived as partisan. And of course, now that the court is doing exactly what Donald Trump promised and doing so as quickly as the court's composition changed, I think tells you a lot about what else we would expect going forward. Mary, thank you. Thank you very much for this. Thanks for having me. All right, that's all for today.

I'm Jamie Poisson. Thanks so much for listening. We'll talk to you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.