The Daily - Is This How Roe Ends?

Episode Date: May 4, 2022

The revelation that the Supreme Court could end the constitutional right to abortion in the United States has set off a political firestorm and deepened divisions about one of the most contentious issues in American society.What exactly is in the draft opinion that was leaked this week, and what does it mean for the court and for the country?Guest: Adam Liptak, who covers the Supreme Court for The New York Times.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: Here are some key questions and answers about the possible effects of ending Roe v. Wade.If the Supreme Court does overturn the ruling, where would abortion be banned?For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. Abortion is violent! Abortion is violent! What do we want? Abortion! What do we want? Now! What do we want? A leaked Supreme Court opinion that would overturn Roe v. Wade

and end the constitutional right to an abortion has touched off a political firestorm. I am here because I am angry. I have seen the world where abortion is illegal. We are not going back. Galvanizing both supporters and opponents of abortion. We are the post-war generation and we will abolish abortion. And deepening divisions over an issue that was long considered to be settled law.

I spoke with my colleague, Supreme Court reporter Adam Liptak, about what's in the draft opinion and what it means for both the court and the country. It's Wednesday, May 4th. Adam, this is a very strange situation that we're in. Would you agree? It's extraordinary. I've never seen anything like it. I mean, just explain that for a minute. Well, so it's 8.45 at night. I'm minding my own business.

And I get a text from a colleague saying, have you seen this Politico story? We begin with breaking news. That is, by all accounts, a report with historic implications. Politico has reportedly obtained a draft opinion which suggests a decision has been made to overturn Roe v. Wade, the landmark ruling that... They have obtained a draft opinion from the Supreme Court

that says they're fixing to overrule Roe v. Wade, the canonical modern Supreme Court decision. If this decision were finalized, it would dismantle 50 years of precedent and pave the way for states to severely limit abortion rights in the U.S. This is a scoop of a lifetime and a decision that will have repercussions potentially for generations. Let me just read you the draft. So then you pick your chin up off the floor,

and you do what? I try to confirm it, because although it has all of the typography and structure and tone, nevertheless, I'm reaching out as best I can to try to nail down whether it's a real thing. And then the next day, Tuesday, the court confirms that it's authentic. Well, I think it's fair to say that we have spent a lot of time, you and I,

imagining the moment when the Supreme Court might strike down Roe. But to learn about it in this form is not at all how we expected this to go down. So what exactly is this document that we are all now obsessing over and that you got that text message about 24 hours or so ago? So it's a document we're not supposed to have ever seen. Back in December, the Supreme Court heard arguments in

a case called Dobbs against Jackson Women's Health Organization. And that case centers on a Mississippi law that bans most abortions after 15 weeks. Now that's at odds with Roe v. Wade, which said states can't ban abortions until fetal viability, which is to say until a fetus can exist outside the womb, which is about 23 weeks. And the question in this case was always, would the justices use it to strike down Roe v. Wade? And so after the justices heard arguments, they go back to a private conference room and cast their tentative votes. And from what we can tell, five of them vote to overturn Roe. And the senior justice in the majority, Justice Clarence Thomas,

assigns Justice Alito to write the opinion representing the majority's view. And that's what this document is. It's a draft of the opinion that Justice Alito wrote in February that gets circulated to all of his fellow justices in an effort to pick up not a tentative, but a final five votes. Got it. So it's a pretty serious, solid, working draft of this decision. Oh, more than that. If they were to issue this decision tomorrow, it would look, smell, and feel like a Supreme Court decision. It would be exactly what we expect. And, you know, Justice Alito put his shoulder into it. Now, to be clear, that doesn't mean

it's the final opinion. These kinds of opinions go through multiple drafts, and it's conceivable, at least, that there are still questions about how the justices might align themselves. But it's at least an early stab that Justice Alito took to reflect the opinions of at least these five justices. And who are the five justices, as we understand it, who have supported this opinion. So Justice Samuel Alito writes, and the justices who voted with him and may well join, may well already have joined, are Justice Clarence Thomas and the three Trump appointees, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Got it. So walk us through the legal logic within this leaked opinion for why the court would overturn Roe. His argument is straightforward in its own terms. He says the Constitution has nothing to say about abortion, that states should be able to do what they like with abortion, to regulate it or

not, to ban it or not. He says, and let me quote now, the Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision. And he's correct, right? The Constitution does not mention abortion. Yes. Literally speaking, the word abortion doesn't appear in the Constitution. But supporters of Roe have long argued that there are many places in the Constitution that could nevertheless support the right to abortion, notably in the 14th Amendment's Due Process Clause, which says states may not deprive any person of life, liberty, or property without due process of law. And that concept of liberty is central to Roe's conception of where the right to abortion is located,

that women must have the liberty to pursue access to abortion. And what does Alito say about that? Alito acknowledges that the Liberty Clause of the 14th Amendment has been held to guarantee some rights that are not mentioned in the Constitution. I'm quoting there. But he says, and he's quoting an earlier decision here, such rights must be deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty. And he says abortion is not that kind of right. Indeed, he writes, when the 14th Amendment was adopted, three quarters of the states made abortion a crime at all stages of pregnancy, meaning it can't very well be deeply rooted in the nation's history and tradition. Now, Adam, that's one thing in this draft opinion, to find that Roe is flawed.

But it's quite another to make the leap that it should be fully overturned based on the fact, and we've talked with you about this many, many times, that it's been the settled law of the land for nearly 50 years. So what is Alito's argument for taking that significant step? So even if you accept everything Justice Alito has said, and a lot of it is contested, and there are arguments on the other side, but even if you accept it, that the Constitution really is silent on this question, and states should decide what to do.

You have to get over the hurdle that lawyers call stare decisis, respect for precedent. Right. It's Latin for to stand by things decided. And that is a high bar. The court does not lightly overturn precedents, but Justice Alito says it's justified here. Because? Well, he lists a bunch of reasons. He's very hostile to Roe.

He says Roe was egregiously wrong from the start, which is what we've been talking about, about his view on that. He says along those same lines, his reasoning was exceptionally weak and the decision has had damaging consequences. Now, it's not entirely clear what he means by that. I think partly he means it's given rise to a lot of divisions. Partly he means that the standard in the follow-on decision, Planned Parenthood against Casey, which affirmed the core holding of Roe, but also said that states can restrict abortions in lots of ways

so long as they don't produce an undue burden, have proved, he says, very hard to apply. And he's probably thinking also about, in his view, that Roe gives insufficient weight to the interest on the other side of fetal life. And he goes on, and far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division. And he lists, you know, lots of decisions, and he's not wrong about this, lots of decisions where the court has overruled earlier significant precedents. And which of those stand out to you?

Well, at least three of them. He cites Brown v. Board of Education, which said states can't require segregated public schools, which of course overturned the doctrine of separate but equal. segregated public schools, which of course overturned the doctrine of separate but equal. He cites the same-sex marriage case, which overturned an earlier Supreme Court decision. And he cites a case striking down laws that made gay sex a crime, overturning a decision that had upheld such statutes. So the court has, not infrerequently overruled earlier decisions. I'd say, though, that almost without exception, and perhaps without exception entirely, the court has in the past done this in the direction of expanding liberties, of expanding rights. And I can't think of an

analogy to the court withdrawing a constitutional right, particularly one this significant and particularly one that has been on the books for almost 50 years. So given what you just explained about how this decision would roll back rights rather than expand them and how that makes it a unique example of overturning precedent. I wonder what this draft opinion will mean for other areas where the Supreme Court has expanded rights in ways that weren't explicitly spelled out in the Constitution. The biggest example, of course, that comes to mind is same-sex marriage, that 2015 ruling. There's no constitutional mention of same-sex marriage. There was no concept of that when the Constitution was written or its amendments. So is a ruling like that under this Alito legal logic potentially in jeopardy from this conservative court? So the logic of the

decision would suggest that yes, it is. That if a state now passed a law barring same-sex marriage and it came to the court, the general reasoning of this draft opinion would lead you to that same conclusion. But Justice Alito knows that it might be possible to read the opinion in that way, and he kind of has a disclaimer. He writes, to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. And he says abortion is fundamentally different from questions like same-sex marriage

or access to contraception because those kinds of issues don't destroy fetal life. Nevertheless, nevertheless, I think that might be cold comfort in the end. And you don't know what cases will arise in two years or five years and how the composition of the court or the reasoning of the court might change. So although there's this disclaimer, I think there are a lot of people who will be nervous if this draft opinion turns out to be the opinion of the court. out to be the opinion of the court. I'm curious, Adam, given just how historic this ruling would be, does Justice Alito, anywhere in this opinion, does he acknowledge the significance of what this represents?

Yeah, I think so. So let me read you a little bit of the draft opinion on this point. Alito says, we cannot allow our decisions to be affected by any extraneous influences, such as concern about the public's reaction to our work. He also says we do not pretend to know how our political system or society will respond to today's decision over ruling Roe. And he says, even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. I laugh a little bit as I'm reading that, Michael, because it strikes me as naive or perhaps even disingenuous, given that the court is getting a preview of the reaction should this draft opinion become the ultimate majority opinion.

Because what's out there, the reaction is intense, divisive, and will really recast the way the public thinks about the Supreme Court. We'll be right back. Adam, the scale of the reaction to this leaked opinion is a direct measure of the anticipated impact of this draft opinion, assuming it stands, which we do. A full-fledged, unqualified reversing of Roe. So just explain what will happen if this opinion is the one that is issued in a couple of months? If Roe goes away, states can do what they like in the area of abortion. They can outlaw it. They can regulate it. They can allow it. So this decision, if it becomes the decision, doesn't outlaw abortion by itself. It lets red states restrict abortion or ban it entirely,

and it lets blue states continue to let women have access to it. Right. So it becomes a legal permission structure to restrict abortion in a way that under Roe was almost in every case illegal. Yeah. So the day the court overrules Roe, if it does, 13 states have in place so-called trigger laws, which will come into effect immediately as soon as the court issues its decision, either outlawing or very severely restricting abortion. And several other states are predicted to follow suit not long after.

And so ultimately experts say 25 or 26 states will essentially outlaw abortion. So in about half the nation, women won't have access to abortion and will have to travel if they want to get abortions. Meaning as a practical matter, women in blue states will have access to abortion and will have to travel if they want to get abortions. Meaning as a practical matter, women in blue states will have access to abortion. Rich women in red states will have access to abortion. And poor women in red states who are disproportionately women of color will have a very hard time getting access to what had, until the day before, been a constitutional right. So in that sense, there will be two Americas when it comes to abortion, and it will be based on

geography as well as class and race. Right. So that's the immediate presumed impact of Roe going away from a decision like this, which we now anticipate. But it feels, Adam, like there's a longer-term impact as well because over the past 50 years, Roe operated as the legal standard for blocking all kinds of laws restricting abortion. It was a break. And once it's gone, that break is gone. So what, if anything, will become the new legal test for what is or is not a reasonable restriction on abortion in states across the country?

Will there be any kind of legal standard? There will be a very relaxed legal standard, according to this draft opinion. States need only satisfy the court's most forgiving standard, which is that they have a rational basis to enact laws restricting abortions, and almost anything counts as a rational basis. Fetal life is a rational basis. Regulating the medical profession is a rational basis. Even protecting women from the consequences of their own decisions might be said to be a rational basis. So I think the arguments will be about whether, say, abortion would be legal if it might save the life of the woman, or perhaps in cases where there's a severe fetal disability. But by and large, almost all restrictions on abortion will survive. And that's probably including cases where pregnancy results from rape or incest,

which currently are often exceptions to even the most restrictive laws against abortion. So that gives you a sense of just how narrow judicial intervention will be when states want to restrict or ban abortions. Right. Which is to say, this court will be very unlikely to frown on almost any restrictions on abortion, except if the life of a mother or severe fetal disability is at stake. Yes, that's right. So I want to turn now

to what everything we're talking about means for the Supreme Court itself. Because for a very long time, you have told us that Chief Justice Roberts, the most senior justice on the court, he did not want this kind of a ruling that this draft represents. He did not want to overturn Roe v. Wade because, as you told us, he knows most Americans support the original ruling, and he feared that it would make the court seem partisan. And I'm quite sure that that view was not lost on Justice Alito and the other four justices we understand to have backed his draft opinion. So what does it tell us that these justices are prepared

to go against his wishes on such an important issue. It tells you that Chief Justice Roberts is no longer in control of the court. As soon as Justice Amy Coney Barrett arrived, cementing a block of five conservative justices to the chief justice's right, he lost that position which he had held before her arrival, where he was at the center of the court, where he's both chief justice and the median justice, the swing justice with enormous power. And now he's at the margins. And the chief justice has lost another thing. He's an institutionalist. He views himself as the custodian of the court's prestige, authority, legitimacy,

it's very important to him that the public respects the Supreme Court as a legal, not political institution. But if this decision is issued, many people are going to think that the Supreme Court is a third political branch, that the mere replacement of a couple of justices by Trump appointees could change the direction of the court on such a fundamental point could not but harm the court's legitimacy. And that will be painful to John Roberts. Mm-hmm. Right. And in that sense, this draft opinion, what it represents is really the culmination of a long journey that the court has been on. And as you say, that's really a journey

in which it has gone from being seen as a nonpartisan, this was a while ago, but a nonpartisan arbiter of the law to essentially an equal of the White House and Congress as being a fundamentally political branch of our government. And perhaps there's no better evidence of that than the fact that this opinion, right, was leaked, which is the kind of thing that happens in the other two branches, right? It happens in the White House, it happens in Congress, but it is not something we think of as happening when it comes to the Supreme Court. commonplace in the executive branch and in Congress, where adversaries will selectively disclose information in the hope of gaining something, the court, by contrast, very seldom leaks and certainly doesn't leak draft opinions. Adam, what has the leadership of the court said about what I think everyone recognizes to be a very messy and perhaps low moment in its history?

So the chief justice issued a statement on Tuesday, which is extraordinary in itself and demonstrates how unhappy he was about this. demonstrates how unhappy he was about this. He says, to the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. This betrayal of the confidences of the court. And he says that he's directed the marshal of the court to launch an investigation into the source of the leak. He's trying to figure out how this happened.

Yeah. He may be as confused as we are. So, Adam, what happens now? Do we all just wait for a ruling that we basically already have? So there's no reason to think the court will speed up the issuance of its decision. I would still anticipate it comes in June. There's good reason to think that this draft opinion represents at least the structure, the bones, the reasoning, the analysis of the final decision. But things can change. And the fact of the leak may suggest that there are efforts to have things change. But nonetheless, we might be in this weird period where every time the court

announces decisions once or twice a week in the coming seven weeks, we're going to be wondering whether we get an opinion that looks very much like one we've already read. Right. And that fundamentally transforms American life. Right. And to have a preview of this earthquake is just extraordinary. Well, Adam, thank you very much, as always. We appreciate it. Thank you, Michael.

On Tuesday, Democratic leaders across the country denounced the draft opinion striking down Roe. Speaking to reporters, President Biden called it a, quote, radical decision. In Congress, Senate Majority Leader Chuck Schumer vowed that Senate Democrats would seek to protect abortion rights through legislation,

while the Democratic governor of California, Gavin Newsom, called for doing so through an amendment to his state's constitution. Meanwhile, Republican leaders praised the ruling. House Republicans issued a statement hailing the opinion as, quote, a decision that protects our most basic and precious right, the right to life. And the Times reports that leaders in Republican-controlled states like South Dakota, Arkansas, Georgia, and Indiana vowed to call special legislative sessions to ban abortion

as soon as the Supreme Court officially issues its ruling. We'll be right back. Here's what else you need to Nutter Day. I gotta say, I thought this would feel good. It feels even better than I thought it would. Thank you all so much. In a closely watched test of Donald Trump's power since losing re-election, the candidate that he endorsed for U.S. Senate in Ohio, J.D. Vance, has won the Republican nomination.

Vance, who was once an outspoken Trump critic, came from behind to beat out a crowded field of conservatives after apologizing to Trump for his past remarks and winning Trump's approval. I have absolutely got to thank the 45th, the President of the United States, Donald J. Trump, ladies and gentlemen. Vance will now face Democrat Tim Ryan in this fall's general election and is already favored to win the race. Today's episode was produced by Rachel Quester, Rob Zipko, and Chelsea Daniel.

It was edited by Anita Bonagio and Lisa Chow, contains original music by Marian Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for The Daily. I'm Michael Bilboro. See you tomorrow.