Plain English with Derek Thompson - How Would the End of Roe v. Wade Change America?

Episode Date: May 4, 2022

The Supreme Court is poised to end the era of Roe. In a leaked draft of a majority opinion, Supreme Court Justice Samuel Alito struck down Roe v. Wade, the 1973 ruling that guaranteed constitutional protections of abortion rights. What would happen to abortion rights in its absence? Which states would shutter their clinics? Which states might expand protections? How does the growth of nationwide access to abortion pills fit into all of this? And why was the draft leaked in the first place? This podcast answers all of those questions and more, with two guests: Melissa Murray is a professor of law at New York University, and Margot Sanger-Katz is a domestic correspondent for 'The New York Times.' Host: Derek Thompson Guests: Margot Sanger-Katz and Melissa Murray Producer: Devon Manze Learn more about your ad choices. Visit podcastchoices.com/adchoices

Yo, Rob Harvilla from 60 Songs That Explain the 90s here to inform you that we are back with 30 more songs because the 90s were super long and had a ton of rad music. Please join us every Wednesday for more 60 songs that explain the 90s only on Spotify. Today's episode is about the end of Roe versus Wade. At 8.32 p.m. Eastern Monday night, Politico published a leaked draft of a majority opinion written in the case of Dobbs. versus Jackson Women's Health Organization. The author of that leaked majority opinion was Justice Samuel Alito, and the opinion definitively struck down Roe v. Wade,

the 1973 ruling that guarantees national protections of abortion rights. And it also strikes down the 1992 decision, Planned Parenthood v. Casey, that upheld Roe v. Wade. If the leaked draft represents the final vote of the Supreme Court and its six conservative justices, Roe v. Wade is no more. What does that mean? And what does America look like in a world after Roe? That is the subject of today's podcast, and we have two guests today.

Melissa Murray is a professor of law at New York University. She joins to discuss the deeper meaning of Alito's opinion and the possible motivations of leaking the draft to the media. But first we have Margot Sanger-Cats. Margot is a domestic correspondent for the New York Times, where she writes about health care, economics, and politics. And she answers my many, many, many questions about what the end of Roe will mean for Americans. Again, if you have questions, criticisms, or ideas for this show, email me at plain English

at Spotify.com. I'm Derek Thompson, and this is plain English. Margo, welcome to the podcast. Thank you so much for having me. So I want to talk to you about this leaked decision from Justice Alito and how it's actually going to affect Americans' lives. What an America without Roe would look like. I want to start with this. If Roe v. Wade is indeed overturned, where is abortion likely to become illegal?

So we don't know exactly. There are, you know, 25 to 26 states that look like they are poised to ban abortion almost entirely. There are 13 states that have passed these special kind of laws known as trigger laws that basically say, if Roe is overturned, then abortion is banned. So those are kind of like waiting to be tripped by the decision coming down. There are also a bunch of states that have old laws from back before Roe versus Wade. So abortion was illegal before. Then the Supreme Court said, no, there is a constitutional right to abortion everywhere. And those states never repealed those laws.

They've kind of been just like hanging out there in the background. those could get reactivated in a number of states. And then there are quite a few states that have recently passed new abortion bans. Basically, they know that the Supreme Court is going to rule on this soon and they want to be ready for it. And so those laws also are sort of ready and waiting. And, you know, depending on how you interpret those laws and the various legal vagaries of them, it looks like about half the states are getting ready to ban abortion. They're not spread out randomly around the country.

they're really geographically clustered. So pretty much all the states in the south, except for Florida, almost all of the states in the Midwest, with the exception of Illinois, and quite a lot of the states in the Great Plains. So you will see, you know, large swaths of the country, big regions where there just aren't any abortion clinics at all. Right. I'm looking at a map of the states that are most likely to be affected by the end of Roe v. Wade in terms of they would suddenly become illegal for women to have abortions in. For the most part, it kind of looks like an upside-down tea. You have the line coming down from Michigan through Alabama, and then it extends as a band along the south from Texas through Georgia into the Carolinas. That's really where you would have, where it would be hardest to, if not

impossible, to get a legal abortion. I think I just want to stop here and point out that, you know, some people in a world without Rovi Wade would try to travel across state lines sometimes to get an abortion. But for someone who lives and say, I'm just looking at this map, Mississippi, it looks like it might require a three-hour drive, a 10-hour drive to get to a state or an area that would have a legal abortion. Is that right? Is that in some places in the South, you would just have to travel very, very far in a world without Roevi-Wade in order to get a legal abortion? Yeah, I mean, I think that that is really an effect that is hard to understand until you look at the map. Most women that get abortions now are poor, and we know from research on when abortion clinics have closed in the last couple of years, that for poor women, the further away the nearest clinic is, the less likely they are to get there. And this is for reasons that are, like, kind of predictable. I mean, maybe they don't have money for gas or for a plane ticket.

They might not have access to a car, may not have a flexible job that allows. them to take time off, money for a hotel room. They may not have access to child care if they have to be gone for a long time. And so what that means is that the further these women have to travel, the less likely they are to actually get to a place where they can have an abortion. Richer women in general tend to have more resources. You know what I mean? If you have the ability to fly to a state like California or New York, probably this is not going to change a lot for you. It will be inconvenient. It will be expensive. And it might be hard to get an appointment in some of those States because they're going to be women like you from all over the country who may be flooding

into the states that still have legal abortion. But the real barriers are going to be for these poor women who have fewer resources and for whom travel is a much bigger hurdle. The typical patient, the typical American who gets an abortion, you say is already a mother, is in her late 20s, attended some college, has a low income, is unmarried, is having her first abortion and lives in a blue state, all that comes from the article that you just published this morning, which of those demographics were most surprising to you? There were a couple that were kind of surprising to me in terms of who the typical patient is. What surprised you the most when you learned that? I have to say a bunch of them actually were. I think that there are certain

stereotypes that circulate about who has abortions. I think there's a sense that many people have abortions again and again. That's actually relatively rare. There are a lot of women who just have one abortion. Their abortion is their first abortion. I do think that there is a sense that very young women teenagers are the people who are having abortions. That doesn't really seem to be true. It's a slightly older women, still younger women, but not children. And people who are already mothers, they understand what it is to carry a pregnancy, to have a child and to care for a child, what that means kind of emotionally, financially, logistically. That's really, I agree. I agree. with that. To me, the most surprising thing is that the typical abortion patient is already a mother.

I don't think I ever would have guessed that. I want to go to something else that you mentioned, which is the question of how the number of abortions in the U.S. might change as the result of the end of Roe v. Wade. To a certain extent, we can look at this question writ small by looking at Texas. Texas passed an infamous law that essentially deputizes Texas citizens to bring law lawsuits against anyone who has an abortion or anyone who assists in an abortion. And you write that abortions at Texas clinics fell by half, but the overall decline of abortions was only around 10 percent or has only been around 10 percent in Texas. Tell me a little bit about that. Why have abortions only declined 10 percent in a state where, as far as I understand it,

you cannot find a clinic that will provide a legal abortion. So you can get an abortion. in Texas up to around six weeks of pregnancy. So if you're very early in your pregnancy, you can still get an abortion in Texas, but about half of the abortions no longer were happening in Texas. And I think this really shows how, first of all, that there's a lot of demand. You know, women who want to have an abortion, they're going to work pretty hard to find a place where they can get it. And also it shows how there is this kind of cross-state travel that happens and that can happen. The third thing that we found in this story that I think was really interesting, and I think is perhaps the biggest harbinger of what we may see in the future, is that we saw a lot of women

who lived in Texas who were ordering abortion pills on the internet from overseas medical providers. So the abortion pill has been approved by the FDA. A lot of women, about half of women, early in pregnancy, when they go to have an abortion, they're not having a surgical procedure in a clinic. They talk to a doctor. They get a prescription for a medicine. They take the pills at home, and they have essentially a miscarriage in their home. This is a common, like, normal, sanctioned medical process. But it turns out that you can also get those pills on the internet from an Indian pharmacy that will mail them to your home. And so you're not necessarily getting care from a U.S. doctor. You're not necessarily getting drugs that are, you know, regulated by the

FDA that come through some sanctioned process. But there is a lot of evidence that when people order these pills on the internet and labs test them, they seem to be authentic for the most part. People aren't getting phony pills. They aren't getting expired pills. And there is a kind of growth in organizations like the one that we tracked called Aid Access, where they kind of hook you up with a real medical professional, just someone not in the United States. So this organization connects women in the United States with doctors in Europe who ask them some questions. And then if they think that they would be a good candidate for medical abortion, they make sure that they get these pills from India. So if we're interested in what an America without Roe could look like,

It's important to keep in mind both the fact that people will travel out of state. Obviously, it's easier for people with means, with resources to travel out of state. But also you have the rise of abortion pills that's going to play a relatively significant role. Let's say you're a – or let's say we have a conservative leader of a state, Governor Abbott of Texas, who sees that abortions have only declined by 10% in the last few months and tries to stop. these abortion pills. To what extent do you understand the states or the federal government has the ability to stop the shipment of abortion pills to people who live in a state where abortion clinics themselves are not legal? I think it's definitely the case that these states are going to try to stop

and regulate this. Obviously, if they want to ban abortions, they want to prevent all abortions, not just abortions that are taking place in clinics in their states. But I do think that this kind of technology is pretty hard to ban. It's pretty easy, legally speaking, to close a clinic. You know, you can go there and see that they're not open anymore. You can make sure that these procedures aren't happening. But in general, I think it is hard for the states to regulate things that are coming through the mail. You know, we just generally don't have a process in which the police are, you know, reading and opening people's mail before they get them. The pills are quite safe. And when you have an abortion that are caused by these pills, it looks exactly in almost all cases,

like a normal natural miscarriage. So even if you took these pills and you ended up in a hospital, if you didn't tell anyone that you'd gotten these pills, no doctor could tell, no police officer would easily be able to tell. And so I do think that there is a real enforcement challenge for these states in preventing the flow of these drugs. There are efforts underway. I mean, you know, including things like trying to figure out, can they go after these overseas doctors and try to shut down what they're doing? Can they go after their website? or their web providers so that women can't access the online portal. So I think this is an area that is ripe for regulation and law enforcement.

But I do think that unlike abortions that are happening in a physical place where a person is doing something to a woman, I think that there are some real law enforcement challenges inherent in these pills because they are so easily transported from other countries and because they come in the mail, which is kind of an inherently private and hard-to-police space. Absolutely, right. It's a layer of privacy on top of a layer of privacy. I am really interested in the degree to which abortion pills could potentially become a focal point for both the left and the right. And you can take either of these and take it where you want to go.

On the right, I could easily see that if you're someone who believes very fervently that abortion is murder, then of course you don't just want to stop at shutting down the abortion clinics. You want to stop the mailing of these pills, which means you would try to pass laws at the state, local, national level, banning the district. of these pills. At the same time, if you're a Democrat, if you're a pro-choice Democrat, you might want to make it easier for women in, say, Mississippi, Alabama, Louisiana, who are hundreds and hundreds, if not a thousand miles away from the nearest district where they can get a legal abortion in a clinic to have easier access and more awareness of the fact of these abortion pills. Am I right in seeing that the pills themselves

might be sort of the next battleground for a certain left versus right war if we are indeed entering a future where Roe versus Wade is no longer the law of the land? I think so and I think it's really kind of a transformational technology because before Roe, you know, people hearken back to what did an illegal abortion look like before Roe? It looked like something that was pretty dangerous. I mean, there were thousands of women, you know, who would end up in hospital emergency rooms with life-threatening infections because someone gave them a surgical abortion and they weren't a really, you know, weren't a licensed medical practitioner, they didn't have like a safe and sterile environment, or, of course, there are, you know, are stories of women who did desperate things and tried to end

their pregnancies themselves without a lot of expertise or sterile technique. I think, you know, these pills are different because they aren't dangerous in the same way. They're pretty safe and they're pretty effective and they're pretty discreet relative to these other methods. We do see the Biden administration has done some things to help, not with these illegal pills, but with pills that you just get through like a normal telemedicine appointment, you know, where you go on a Zoom call with a doctor and maybe an out-of-state doctor could prescribe you the pills and mail them to you. That wasn't really allowed before. And the Food and Drug Administration just in the last couple of months made that legal. But we are seeing, again, you know, states that are cracking down on abortions that are

looking to ban abortions at clinics in their state are also trying to prevent out-of-state doctors from doing these telemedicine abortion and mailing pills through these legal channels. For those interested in the pre-row history of abortions or the 19th, early 20th century history of abortions, the Atlantic writer Caitlin Flanagan wrote this really powerful essay, The Dishonesty of the Abortion Debate is the name of the essay that begins with a long lead about just how gruesome some of these injuries were and how life-threatening, consistently life-threatening abortions have been in American history. I want to move on to timing. at the moment, abortion remains legal in every state, at least some level.

In Texas, you said it's up to six weeks. And you say that every state today has at least one clinic that is in operation. What do you expect the timing to look like if we get a decision in the next few months written by Justice Alito that says basically everything that the leak does? document says, what could the timing look like for the first state in America to register zero on the number of clinics that it has opened for legal abortions? I think that it is likely to happen very fast, but it is not likely to happen instantly. So I think pretty much as soon as it becomes clear that prosecutors are going to enforce criminal laws against abortion providers, the abortion

clinics are going to close. You know, they do not want their practitioners to end up in prison. We on Texas, you know, in Texas, the penalty is you could get a $10,000, you could be sued for a $10,000 penalty. The day that law went into effect all of the abortion clinics in Texas, you know, changed the way they were doing business to make sure they did not run afoul of that law. I think that's a good model for what we could expect. But these different state laws, you know, I mentioned they have these different characteristics. So some of these trigger laws, like, they go into effect, you know, 10 days after the court decision is, or 30 days after, or 30 days after the legislature certifies that the court has changed.

the rule. So I think we're going to see kind of a rolling basis where different laws kick in at different times in different states, but pretty much as soon as the writing is on the wall that the state is going to actively enforce an abortion ban, I think we could expect to see the clinics in that state close to immediately. Close to immediately in a matter of weeks at the latest. I want to ask you about where America is situated in the global picture of abortion rights. I think it's very interesting that abortion doesn't seem in Western and Central Europe to play quite the same political role that it does in America. It's also really important, I think, to keep front of mind when comparing the U.S. to Europe. The U.S. has a much higher rate of maternal mortality.

I think two, three, six times higher rates of maternal mortality in the U.S. and a lot of countries in Europe. characterize it as you wish. Like, where does America fit in to the global picture in terms of our current abortion rules and where we might be in a world without Roe v. Wade? So my colleague, Claire Kane-Miller and I did some reporting on this a couple of months ago, and I think the thing that's interesting about it is it's sort of a weird country either way. The U.S. is weird.

The U.S. is weird. So if you look around the world, right now what Roe v. Wade says is that women have a constitutional right to abortion up until the point of fetal viability. That's when the fetus could survive outside the womb right now. That's like 23, 24 weeks. So pretty late in pregnancy, women have a constitutional right to abortion. There aren't a lot of other countries in the world that are like that. Most countries in Europe, not all, but most allow abortions up to about 14 weeks of pregnancy, 12 or 14 weeks, for any reason. And then after that, you kind of have to have a reason. Maybe there's a health reason. Some of them have socioeconomic reasons, but there's not, it's not like the U.S. where if you just go to an abortion

provider that can provide you with the abortion and you want the abortion, it's kind of no questions asked up until the point of fetal viability. There are other countries like this, but not a lot. On the other hand, if you look at the global trend, while there are a number of countries where abortion is illegal around the world, most countries that are changing their laws are liberalizing their abortion laws. They're decriminalizing abortion. They're allowing abortion in more situations. We've seen a lot of countries around the world, even countries like, say, Ireland, that we think of as being, you know, deeply Catholic countries with very strong religious traditions where you might expect them to have deeply seated views opposing abortion. Those kinds of

countries are liberalizing their laws. The U.S. would be pretty rare in tightening up and moving in the opposite direction. But, again, so they're weird in that way. And then I think they're kind of weird in a third way. And this is just very much the American system where this decision is not saying that abortion will be illegal everywhere. It's just saying that the states can decide. And so I think what we're going to see in the United States is just a huge amount of regional variation. A lot of states are going to ban almost all abortions. And then we're going to have a lot of states where abortion access remains extremely liberal, where, you know, if you have the means and if you live in that state, you're going to be able to get an abortion quite easily. And so that range

is also unusual. Most countries, it's kind of the same everywhere, or kind of in a narrow band of seamness everywhere. Right. You're saying, in this future that we might be entering, where you live says way more about your abortion access than it has for the last 50 years, where Roe v. Wade has been the law of the entire land. But I do take your point that America is weird in at least three ways, I counted. We're weird, number one, unusual in allowing abortion for any reason up until around 23 weeks. That's longer than a lot of European. countries. We're weird in that we are becoming more conservative rather than liberalizing, which is the trend of the world. We might also be weird because there's a lot of states, again,

in that upside-down tea, down the middle of the Midwest and across the South, that are going to move to be much more conservative than most countries in Europe when it comes to our abortion rules. Last question that I have for you is how you think this is going to change abortion laws in countries, in, excuse me, in states that are clearly blue. Can you imagine the pendulum swinging to the left, to the liberal side, where states like California or states like Virginia, which border, you know, the Carolinas and the South, where abortion rights are going to go in the conservative direction? Can you see them swinging to the left in order to compensate for the fact that Roe v. Wade has fallen at the national level? So I think that you've mentioned two states that I think are going to go in very different directions. So it's interesting to talk about both of them. I think California is very much in this mold that you're describing where politicians there kind of want to be an abortion haven.

They want to be able to be a place that can help women who are unable to get abortions in other states. And they're thinking about how to do that. How can we build capacity? How can we make a friendly infrastructure? sure. California also is just, you know, if you live in California, you can get public financing for abortion. You can get it covered by Medicaid. California is like a very abortion friendly state in general, and they are trying to think about how they can go farther. But the other thing that's worth thinking about is like a state like Virginia, I really don't know what is going to happen in a state like

Virginia. It does not seem clear that Virginia is going to want to ban abortions. I think it is not a state like Texas that is really just waiting for this decision to come down to change everything. But I do think that Virginia is a state that might regulate abortions somewhat. You know, we see this in a number of states where they're not going to ban it, but maybe they're going to say 24 weeks, that's too late in pregnancy. You know, no abortions after 20 weeks, no abortions after 15 weeks. Maybe there are more rules, you know, about who can have an abortion and when, whether your reason is good enough. Maybe there will be more regulations of abortion clinics than there were before. The Roe versus Wade decision really limited what states.

could do. It kind of was like everyone has to meet this high bar for what's legally possible. And now we're going to see all this variation, you know, all the way from the states that are going to totally ban it to the states like California that are very enthusiastically trying to help women who need abortions that live out of their state. And I think Virginia is an example of a state that may end up kind of somewhere in the middle, probably really important for access for women coming from the south. It's sort of the nearest state on the way north that is going to have abortion clinics, but also may not be super friendly to them and welcoming to them. I think Virginia is very interesting. It's a border state in this way between a South that's

going to be extremely conservative about access to abortions and in Northeast that I think is going to be extremely accommodating. It's also a state that is moving left faster than almost any other state in the country because there are so many college graduates in northern Virginia and college graduates have moved left a lot in the last 12 years. At the same time, the governor is a Republican. Governor Junkin is a Republican, and I find it very unlikely that a Republican governor is going to, in the immediate aftermath of Roe v. Wade, immediately move to the left on abortion rights. So I think your point is very well taken there. Very, very last question, which is about politics. There is an observation that's been made about Roe v. Wade, which is that one of the reasons

why it polarized America the way that it did is that the courts ran ahead of the political process. You had a country in the 1970s that was not particularly polarized on abortion, and then you had this seven-two decision in Roe v. Wade in 1973, and all of a sudden in the next decade, abortion became an extremely polarized issue. Today, if you ask Americans, if they want Roe v. Wade overturned, it's kind of like the opposite situation. By a two-to-one margin, every year going back 20 years, Americans say, you know, we're kind of split on abortion. but we do not want Roe v. Wade overturned. What do you think could be some of the political aftershocks of the court moving so far ahead of the political consensus of the population? I think there's a conventional wisdom among a lot of politicians and other political actors

that Roe v. Wade being overturned will be good for Democrats in general, that it will be mobilizing for their voters because there are a lot of voters who support abortion rights but, like, don't, you know, weren't really thinking a lot about this issue. You didn't think that they were in peril, and all of a sudden, now we're seeing all these headlines and we're going to hear about all these laws that are being passed. And if you think about the kinds of voters, this particularly in a midterm election, which is coming up, that Democrats want to mobilize and want to get to vote and who don't always vote, they're the kinds of voters who may care about this issue, right?

Younger voters, voters, voters of color, poor voters. These are people that don't always vote in midterm elections, but maybe if they're really energized, it'll give the Democrats a bump, and it will hurt the Republican. So I think that's one theory about this. But I think there are also some indications that it may not be as good for Democrats as they hope it will be. If you look at what's happening in Texas right now, Texas has effectively banned, you know, half of abortions for several months. And, you know, they just had a primary election. No one was talking about this. No one was running TV ads about it. It just wasn't a prominent issue in the political discourse in Texas. Now, Texas is a really conservative state. And, you know,

different than, say, a state like Virginia, where maybe it will be really mobilizing for Democrats. But I think it brings up another point, which is all of those national polls are looking across the entire United States and saying, okay, there's a majority of Americans that support some abortion rights. But like many other issues in this country, I think there is a lot of polarization, not just in our politics, but in our geography. So the states that are looking to ban abortion, they tend to have populations that are a little bit more hostile towards abortion rights. And the states that are going to keep legal abortion tend to be the states where you have a population that disproportionately supports it. And so you think about the political consequences,

I think there will be some national political reverberations of this, but it also may be that on the ground, in a state like Texas, there's just not going to be enough mobilization of Democrats to change the legislature, to change their approach to this issue. And so you may end up sort of seeing this sorting where there's lots of agitation and democratic mobilization in states that are basically already blue, and there's less activation in the states that are actually trying to restrict abortion. I think that's an incredibly sophisticated answer. It's basically salience versus sorting. On the one hand, with salience, it's going to be, I think, at the margins better for Democrats to be able to run against the overturning of Roe v. Wade, considering that by a two-to-one margin,

Americans keep saying, year after year, we don't want Roevey Wade overturned. At the same time, this is not a national election. This is a midterm, and midterm elections are hyper-local at the state, at the local level, and the sorting effects that already exist in this country, where liberals live around liberals and Republicans live around Republicans, might not allow that sort of turn at the generic ballot level to cash out and Democrats actually making up a lot of ground in the mid-term elections. That seems like a relatively plausible hypothesis.

Margot, thank you so so much for joining us. I really appreciate it. Thank you so much for having me on. Many thanks to Margot Sanger Katz. And now for discussion about why Justice Samuel Lulito's draft may have been leaked and how his legal reasoning could have implications far beyond abortion. I bring you Melissa Murray, Professor of Law at New York University. Professor Melissa Murray, welcome to the podcast.

Thanks for having me, Derek. Professor, I want to ask you about this leak and then I want to spend the majority of our time talking about the substance of this draft. You clerked for Supreme Court Justice Sonia Sotomayor when she was sitting on the Second Circuit. So I'm very, very interested in your opinion here. Can you give me a sense of how unusual it is for the public to see a leaked draft of a case as important as this? So to be clear, I was not a clerk on the Supreme Court, but the norms of confidentiality, I think, pervade the entire federal judiciary. So this isn't something that is sort of unique to the Supreme court. Every federal court, I think, and indeed most courts would have the same expectations. But

you do not discuss what you are working on in chambers. You don't discuss what your judge or justice is discussing with her colleagues. And you certainly don't leak a draft of the opinion before it is ready to be released. When it is released is when the public should see it. So I will say on Monday night at around 830, when Politico announced that it has, this draft opinion, I was sort of like, no, you don't. Nobody has something like that. Like, this is a fantasy. And when I saw it, it really did look authentic. It had the circulation stamp. It looked like the kinds of documents you see circulating at the Supreme Court. And, you know, because I had listened to oral arguments in this case, I was expecting that there would be a five

justice majority to overrule Roe versus Wade. So that wasn't surprising. So a lot of things checked out. But to me, the great mystery of Monday night was who leaked this opinion and why. Well, I don't want to ask you to mind read here because I don't think. I want to speculate. I want to do right speculation. I mean, I'm just so curious because what do you, what would you say are the possible motives for leaking a draft opinion at this time? Well, I think any of the possible theories really says a lot about the interaction between the court and the injustices themselves and the interaction of the court

as an institution with the public. So, like, starting from that frame, you know, there was a lot of discussion on conservative Twitter that this was obviously the handywork of the liberal justices who were trying to galvanize public opinion in support of abortion rights

and to force the court to issue a more moderate opinion on this. And, you know, I guess I could see it, but it doesn't really check out because I think if, like, first of all, the liberal justices know that there's no forcing their six conservative colleagues to compromise and certainly not on this issue. So the idea that

they're going to drop this opinion and the right is going to cave, like they're not fantasists. And more importantly, the timing of this doesn't check out. If you had this opinion from February, if you were really itching to do it, you would drop it in February. Or alternatively, if you really wanted it to have some impact on the public, you would wait until closer to the midterm election. So you'd wait until the end of term, which is when we expected. This decision. to be released. So I don't think this was the liberals. Like this wasn't a very strategic release. And I think they know that they have to be a little cannier than this. So if it was the conservatives, what would be the motive of a conservative clerk to,

oh, please go ahead. Go ahead. There's like there's another camp. So there's the chief justice, right? So he was the one at oral arguments trying to broker this third way compromise where you upheld the Mississippi law but stopped short of striking down Roe versus Wade. So some were suggesting maybe someone dropped this as a test balloon to show the hardcore conservatives that this was going to be an absolute bombshell to the American public and they should not do it. But again, the Chief Justice on Tuesday announced that although this was authentic, it was not the final opinion and he completely just read whoever did this, the Riot Act. Like this was such a breach of the Supreme Court's norms of confidentiality and collegiality.

And so I can't imagine the court's most stalwart institutionalist doing something like that. that. So let's rule him out. And that brings us to the conservatives. And I'll just say this, this five justice conservative majority isn't scared of anything. They're not scared of the public. They don't care what the public things. They don't care what Congress thinks. They're not worried about Congress checking them. But they do worry about themselves. And they do worry about losing this majority, especially on this issue, which has been the great white whale of the conservative legal movement. And so I think what likely happened was that this opinion, which is sweeping and absolutist and literally leaves nothing to chance,

like just leaves it all on the dance floor, was probably a bridge too far for at least one justice who wanted something narrower, something a little more moderate, something that didn't leave open the possibility of eventually overruling same-sex marriage, interracial marriage, contraception, and the whole thing. And I think it is likely that this doubting justice decided that maybe he might find common cause

with the chief justice in this compromise and that they could go break bread with the three liberals and change the majority to something that was more moderate and change the outcome. And to be clear, this has happened in the court's past. So Anthony Kennedy was among the five justices who was willing to overrule Roe versus Wade in 1992, and he stopped short and decided to pull tracks caucus with justices Souter and O'Connor and the two remaining liberals. And they managed to broker a compromise that saved Roe, but did actually allow the states pretty broad, latitude to regulate abortion, but salvaged Roe versus Wade. And that is what no conservative wants to have happened. Justice Alito and this majority wants to preserve their majority. And I wonder if this was a shot across the bow to that doubting justice to get himself on the hard line, get in line, get on side, or you sleep with the squishes. And no one wants a squishy

conservative. That's so interesting. So I will read now from my group chats that I was, where I was floating some theories about what in the world is going on with this with this leaked draft. My hypothesis was that the draft was leaked by a conservative clerk angry that the court had moved away from Alito's opinion. That this was an early draft. They had moved away from leaders' opinion. And that the conservative clerk hoped that this leak would alert conservatives to the

opinion they almost had but didn't to shame them to the right. Same energy. Same energy. Same exact energy. Same exact energy. And like, again, if the conservative base, sees what could have been, what they've always wanted. And instead, you got this manby-pambi kind of compromised opinion.

That's going to, like, I mean, you're going to get the same. And they know who would have been the one to steer the court away from this hardline course toward a more moderate course. You're going to get the kind of treatment that the chief justice got after Obamacare or after he joined the liberals in June medical, which is to say he's not a real conservative at all. And then the mail starts coming and then the brickbats start coming. And you stop getting invited to the.

federalist society and all the things. You mentioned that this draft might have an implication for things like same-sex marriage. And I was reading analysis of the draft saying that the opinion explicitly criticizes Lawrence v. Texas. That's a decision that overrules laws to criminalize sodomy. It brings in Obergefell v. Hodges, the famous case that legalized same-sex marriage, and for criticism. Tell us a little bit more about why the draft that we read last night, why the draft that was leaked could threaten those opinions as well. So just as Alito in this draft opinion is at great pains to say that this is only about abortion. Abortion is unique, which is why we can do this to abortion and we can overrule

Roe versus Wade and Casey. But this is gaslighting, pure and simple. And he knows it and you know it and I know it. Because what undergirds the right to abortion, this idea of privacy or liberty or autonomy in your private life is the same principle that undergirds the right to marriage, the right if parents raise their children in the manner of their choosing, the right to use contraception. So if Roe falls because it is an unenumerated right and there is no rooted history of recognizing this right, then all of these other rights are similarly unmoored from constitutional texts and also lack this history. In fact, for the right to marry a person of the same sex or the right to engage in sexual relations with someone outside of marriage or with someone of the same

sex, all of these things were criminalized at one point in U.S. history. So the idea that there was always protection for this is as false as it is for abortion. So if he's criticizing abortion on this grounds, he could easily make the same critique of these other rights. And again, we have already seen the groundwork being laid for this. The confirmation of Katanji Brown Jackson was literally laced with questions about our Bogerfell, where John Cornyn, the senator from Texas asked her, you know, do you believe in this opinion? Do you think this is something that should be left to the states? Marsha Blackburn from Tennessee asked her how she felt about Griswold v. Connecticut and 1965 opinion that allows individuals the right to use contraception in their marriages and was

later extended to allowed unmarried people to use contraception. So these are rights that we take for granted, the right to marry the person of your choice, the right to decide when and whether you have children. And they are basically laying the groundwork to eviscerate all of this. And it may not be immediate. It may not be the day after this opinion and Dobbs is announced. But I think you can see the tea leaves. Like all you have to do is start saying that we can recognize broad religious objections to same-sex marriage and normalize the idea that we can treat same-sex couples differently in the public sphere. And it's not a far cry toward we can just roll back this right entirely. And once you start withdrawing rights, what else can you withdraw? So this is, you know, people are

start talking about a slippery slope and maybe that's hyperbolic, but once you have the appetite to withdraw, right, what else might you withdraw? And I think that's a really real fear. That's so interesting. So you're saying there's like this tower of constitutional rights that have been built over the last 50 years, rights to contraception, rights to abortion, rights to same-sex marriage, rights to not be criminalized for sodomy. You have this tower of rights. And there's one attitude that might exist on the conservative right that says, we would just want to take out the brick of Rovi Wade. We just want to take out one brick, abortion special. This brick is unique. It's like, does anyone play Jenga at this court? You're saying, right, you're saying that the entire

tower is being destabilized by the logic in this decision. This is constitutional law, Jenga. And like, my 10-year-old knows it and they probably know it too. Like, you can't just pull one brick. Like, it doesn't work that way. Not this brick that really supports this entire scaffolding, these rights of heart and home. all interwoven, they're all implicated. And if you tug on the thread of Roe, you're tugging on all of it. Is it possible then to go back to the very first question, why was this leaked at the time that it was leaked? Is it possible then? I don't want to make light of the end of Roe v. Wade, but that this is something equivalent to like wiggling the Jenga piece to see if the tower comes down, that someone was leaking

this in order to say, I wonder what the public is going to say to the draft of an opinion, that that comes out so, so strongly against the philosophy of Roe v. Wade that it threatens all of these other rights, this is a way of essentially floating that trial balloon and figuring out how the public is going to react to it, how the political system is going to react to a decision that we see coming down the pike. I think that's a great theory if this is a majority that actually cared about what the public thinks. But this is actually a majority that's insulated itself from any blowback from the public because they've essentially made it so hard for the public. to register their objections at the ballot box, which is where the public would ordinarily make their

demands on the Supreme Court by either changing who appoints people to the Supreme Court who confirms people to the Supreme Court are otherwise registering their preferences through the political process. But this court has completely dismantled the Voting Rights Act and allowed states broad latitude to pass suppressive voting laws. And they've taken themselves out of the whole process of checking the states when they politically gerrymander their districts. They've made it hard for the scaffolding and infrastructure of democracy to be a legitimate check on what the court does. So I think that theory is great if this court actually cared about what the public thinks. But they don't care because they don't have to because it's so hard and they've made it so hard for

the public to actually register its displeasure at what the court is doing. So yes, I think this is a court that is doing the most because it can do the most and they've created the conditions under which they can do the absolute most. Professor Melissa Mary, Thank you very much. Thank you.