The Daily - Special Episode: Roe v. Wade Is Overturned

Episode Date: June 25, 2022

This episode contains strong language.The Supreme Court overturned Roe v. Wade, a ruling that eliminates women’s constitutional right to abortion after almost 50 years. “Roe was egregiously wrong from the start,” Justice Samuel A. Alito Jr. wrote on behalf of the majority, while President Biden has denounced the court’s action as the “realization of extreme ideology.” In this special episode, we explore how the court arrived at this landmark decision — and how it will transform American life.Guest: Adam Liptak, a reporter covering 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: Read the majority decision that overruled Roe v. Wade, with notes by New York Times reporters.The court’s decision was one of the legacies of President Donald J. Trump, with all three of his appointees in the majority in the 6-to-3 ruling. Privately, the former president has called the reversal of Roe “bad” for the Republican Party.Abortion is now banned in several states, with trigger laws in others set to take effect in the coming days. See where women would be most affected.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

This is Sydney Harper, Daily Producer. I am walking down the block to the Supreme Court of the United States from where my Uber had to drop me off. The police presence here is intense. It's Capitol Police. I mean, shields face guards and helmets and all kinds of things. What are your names? My name is Jocabe Torres. How old are you? I am 24 years old. Yeah. And are you from the area? I'm from California. Oh, did you all fly here? Yeah, I flew in here.

For this? Yes, we were expecting the decision to come down and it did come down and we are very happy with the decision. So I didn't want to be involved at the beginning because I'm not a conservative. So I was like, how could I go with a bunch of Republicans, white dudes? Like, I don't feel comfortable doing that. But I realized it was much more than that. It's made of women. It's made of people of color.'s made up of atheists, LGBTQ, Democrats. There's Democrats for life. It's the pro-life community. Let their hearts beat! Let their hearts beat! I'm seeing an abortion is murder sign coming and chanting coming from those people over there.

Let their hearts beat! Let their hearts beat! I'm seeing an end abortion violence sign. I see I am the post-Roe generation sign. Let their hearts beat! Let their hearts beat! Let their hearts beat! Hi. Can you tell me your name? It's Sarah Orton-Bypont. I'm pretty shocked.

I wasn't expecting to come here and see a celebration. I think that's some naivete on my part. come here and see a celebration. I think that's some naivete on my part. So the overturning of Roe means just a lot of women dying and not having access to safe abortions. And it's really horrifying to see people celebrating here. I'm a mom. I had a hard childbirth, and forcing that on people is just, it's a lot, and it's really emotional to see this right now. And we knew that this was happening, and it didn't prepare me for this feeling. It's really hard.

Sorry. Abortion is murder! Abortion is abortion! Roe, Joyce is a fucking lie! Babies never choose to die! Roe, Joyce is a fucking lie! I can't help you! Ro sorry, this is a lot. Pro-choice, that's a lie! Babies never choose to die! Pro-choice, that's a lie! They need an event abortion!

I will aid in an event abortion! I will aid in an event abortion! From the New an abortion! I will hate an abortion! From New York Times, I'm Michael Barbaro. Pro-choice, that's a lie! Babies never choose to die! This is a special episode of The Daily. Illegitimate! The Supreme Court!

The Supreme Court! Illegitimate! Illegitimate! The Supreme Court has overturned Roe v. Wade, eliminating the constitutional right to an abortion after almost 50 years in a decision that will transform American life. I don't know.

I just couldn't believe that something like this is happening and this much negative change is happening around me. I was scared for a second realizing that this is what and this much negative change is happening around me, I just, I was scared for a second realizing that this is what the future is becoming. I don't know. It's such an exciting day today to know that we're finally reaching an America that knows that abortion isn't really necessary or needed. I spoke with my colleague, Supreme Court reporter Adam Liptak. It's Saturday, June 25th. Adam, the leak a couple of months ago of this opinion, or an earlier version of it, really meant that the whole country has known that this was all but inevitable.

And yet, absorbing it all today, it's still a shock and clearly a further fracturing of the country and, above all, just a difficult-to-process level of significance. Yeah, it's one thing to know it could happen, and it was odd with the leak because you had a pretty good sense of how it would happen if it happened. Right. But, you know, almost two months have passed. There must have been a lot of activity within the court, and certainly people on the abortion rights side held out some hope that the result would be different. So when the decision lands, and it's not only a version of the leaked draft, but also concurrences and dissents and 200-plus pages of argument, it really brings home that something really big happened in the nation. That women's lives, the healthcare system, the political system, even potentially the legitimacy of the Supreme Court, it's all shifted a bit.

In some cases, shifted a lot. Exactly right, yeah. So let's talk about what exactly the court has done here by reversing Roe. It eliminated a constitutional right to abortion, a right that's been in place for about 50 years, a right that generations of women have assumed that they have. And so in overruling Roe, the court said, we're going to stay out of this. The Constitution has nothing to say about this. States can do what they like.

If they want to ban abortion, they can. If they want to allow abortion, they can. If Congress wants to act in this area, it can. This is for the people's political elected representatives and not for judges. And Adam, in doing that, in putting abortion in the hands of states, state lawmakers, what kind of parameters or guidance did the Supreme Court leave in place to guide what happens next with abortion law? The majority opinion tells us essentially nothing about what kinds of abortion restrictions may be proper. They certainly suggest that you can ban abortion from the moment of conception. And the live questions then are, well, what are the exceptions? What about the life of the mother? What about the health of the mother?

What about rape? What about incest? What about fetal abnormalities? And you can stare at Justice Alito's majority opinion for a long time and really get almost no guidance. And that will be the subject of further litigation. But you have the sense that many of those potential exceptions are not constitutionally required in the eyes of the Supreme Court. The main exception I would anticipate is the life of the mother. But even that is not addressed in so many words. So this ruling allows for, in theory, some of the most restrictive possible bans against abortion immediately. That's right. And we've talked, Adam, about the states that have laws in place that anticipated this day

and this moment, so-called trigger laws, that would automatically do just that, would ban abortion. How quickly will those laws now go into effect? Well, they will vary depending on what the text of the laws say. But the very notion of a trigger law is as soon as the court overrules Roe, the law is meant to spring into effect. Now, some of them may have some time delays in their text, but there's also a practical point here, Michael. An abortion clinic in a state with a trigger law, knowing that the law is going to come into effect tomorrow or next week or next month, may well be very cautious about continuing to perform abortions because they won't be sure whether there's criminal liability attached to what used to be a constitutional right. there's criminal liability attached to what used to be a constitutional right.

Interesting. So in other words, there may be a chilling effect that pauses abortion in these states even before the trigger law actually goes into effect. Exactly right. So do you expect abortion rights groups to try to slow this all down with legal actions, with lawsuits? Yes, of course. There are talented and committed litigators on the other side of this issue who will make every argument available to them to try to maintain some access to abortion in the largely red states that seek to ban them, but their legal tools are limited. Because Roe is gone. So their chances of success are very narrow?

Yeah. There may be arguments out there that I haven't thought of, but you would seem to have a vanishingly limited chance of success in lawsuits challenging most of these abortion bans. So let's turn, Adam, to the justices' rationale for doing this, their opinions released on Friday. In his leaked opinion that we got a glimpse of a couple months ago, Justice Alito basically argued that Roe v. Wade should be tossed out because the Constitution makes no mention of abortion. So it's pretty hard to find a right to it. And he went on to say that previous justices, knowing that fact, strained really hard to find a

right to an abortion within the 14th Amendment's promise that you can't take away people's right to liberty without due process, which is a major basis for Roe. And Alito said that was a stretch and not a legitimate basis for creating a right to an abortion. How much of that argument and logic was reflected in Alito's final opinion today, Adam? You know, I haven't done an edit-trace comparison one to the other, but in reading the new one, it sounded very much like the old one, only with the addition of some responses to concurring and dissenting opinions. But the basic structure, language, tone of the draft Alito opinion is maintained in the final opinion. And your account of the basic reasoning is right. He says that you can't read a right to abortion into the Constitution because the word doesn't appear there. And the main hook that abortion rights advocates look to,

the protection of liberty and the due process clause of the 14th Amendment, doesn't work either because he says when that Civil War era amendment was ratified, the people who ratified it didn't think they were creating a right to abortion. In fact, he says, most states made abortion a crime back then. So the Alito opinion was not particularly surprising because we had this preview of it, and it's not terribly different from the preview. But there were other opinions from conservative justices, concurring opinions, and they kind of illustrated that the right, although there were five votes for this outcome, are not wholly united. Explain that. And also explain why you're saying that there were only

five votes for this outcome, because we are all reporting that this was a six to three vote to overturn Roe versus Wade. Yeah, so this is quite interesting. This is a story about Chief Justice John Roberts. He doesn't join the Alito opinion. There are five votes for the Alito opinion and Chief Justice Roberts says, no, thank you. I have my own ideas about how we should have resolved this case. And he has a kind of half measure. He doesn't want to go as far as Alito and the other conservatives went. The question in the case, of course, is whether Mississippi can enact a law banning most abortions after 15 weeks of pregnancy. Right. Now, that's at odds with Roe, which says you can't ban abortions before fetal viability about 23 weeks. So 15 is less than 23. That's at odds with Ro abortion. We should leave in place, at least for now.

And that's characteristic of the chief justice's measured, incremental, institutionalist approach. And I suspect he was quite unhappy that the ambitious justices to his right are ready to go all the way right away. to his right, are ready to go all the way right away. So what is laid bare in this Roberts' dissent is that he did not want the rest of the conservative justices to do what they have very clearly done, five of them, which is vote not just to uphold this Mississippi law banning abortion after 15 weeks, but to go much further and invalidate Roe versus Wade itself. He didn't want that. He's saying he didn't want it, but it happened. Right. I think he thinks it's bad for the court. I think he thinks that judicial modesty requires you, A, to answer only the question presented to you in the case, and B, not to decide more than you have to decide.

And this was clear from the argument in December where he was clearly sketching out this approach. And it was an approach that a lot of people thought that was where the court was going to end up. And I have to think the Chief Justice has spent the last seven months trying to persuade at least one colleague to come along with him, maybe Justice Kavanaugh, maybe Justice Barrett, and he failed and he finds himself entirely alone, which is not a pretty place to be if you're the Chief Justice of the United States. Adam, where else did we see

disagreements among the conservatives based on their opinions? Well, two of the justices who joined Justice Alito's majority opinion, who signed on to every part of it, also issued concurring opinions, opinions in which they sort of set out what they thought the opinion meant and where they thought the court should go. One of them was Justice Brett Kavanaugh, who by most accounts is the current swing justice, is Brett Kavanaugh, who by most accounts is the current swing justice. And therefore, his account of what the Alito opinion means is particularly important because he has a lot of control over what the court does next. And we also had a concurring opinion from Justice Clarence Thomas, the most conservative member of the court, who seemed to be itching to go in a different direction.

Well, so explain what Kavanaugh says. Well, he makes one interesting point. He says that he doesn't think it's constitutional for states to tell their residents that they may not travel to other states to get abortions. Now, that tells you something about the state of abortion law after this decision, because in much of the country, the only way for women to get abortions will be to travel and sometimes very far. And there's been some noises in some states that even that ability might be trying to be made unlawful. And Kavanaugh gets out ahead of that and he says, no, there's a constitutional right to travel. And at least that sort of access to abortion is safe. So if you're

in Alabama, you can go to New York or California. So this is Kavanaugh saying to people who are now quite afraid of the repercussions of this ruling, you don't have this thing to be afraid of. Yeah, I would think for most people it's small comfort, but nonetheless, it's not as bad as you might think aspect to it. And what about Thomas? Justice Thomas claims to be on board with the Alito opinion, and one part of the Alito opinion in particular, that no other precedents are at risk. Justice Alito says in so many words, this is about abortion only. We're not talking about gay rights. We're not talking about contraception. Don't worry.

This is only about abortion. And Justice Thomas says, yeah, I agree with that. That's true so far as it goes. This opinion is only about abortion, therefore it's only about abortion. But then he goes on to say, the logic of the opinion suggests that those other precedents are at risk and that, in fact, we should reconsider them at our earliest opportunity. And why does he make that argument?

What do they all have in common? Well, they're all based on the idea that the due process clause protects these rights, that just as people used to say, it protects a right to abortion, that same clause was the basis of the decision protecting a right to same-sex marriage, a decision protecting a right to gay intimacy, and basically a decision protecting a right to contraception. So Justice Thomas says the logic of one extends to the logic of the rest, and that the court should turn its attention to reconsidering those other precedents.

Which would be enormous. So Justice Thomas contradicts Alito and articulates the kind of liberal nightmare vision of what this decision overturning Roe might mean, which is that it could, and Thomas is saying should, become the basis for overturning all these other constitutionally protected rights that have been won at the Supreme Court over the past few decades. So should we assume that because Thomas is alone in saying this in his concurring opinion, that he's alone in feeling this way, or is that a faulty assumption? I wouldn't go quite that far. I don't think there are five votes for overturning any of those decisions. But I don't know that there's only one vote. Justices Alito and Gorsuch might well be on board for that. And the dissenters in Friday's case certainly think that whatever the court promises in the new decision may not predict what the court actually does.

We'll be right back. So Adam, you started to turn to the dissenting opinions from the liberal wing of the court, which has gotten smaller and smaller over the past few years and has had many months to plan for this moment. So what did those three justices have to say on Friday? So what did those three justices have to say on Friday? Well, it's a long and impassioned and aggrieved and profoundly sad opinion in which the three liberals writing together in a joint opinion, but much of it sounds like Justice Lena Kagan, case that the cause of women's rights and women's equality has suffered a grave setback and the legitimacy of the Supreme Court has sustained a blow, basically because of a quite recent change of personnel at the court. Adam, what do they say about the legal logic before we turn to what they have to say about the consequences of this decision? Well, they make two essential points. One is about the Constitution, and they say the

Constitution is capable of taking account of contemporary circumstances, and it's not frozen in amber in 1868 when the 14th Amendment was adopted. In fact, they say when the amendment was ratified, one group of people played no role in that process, a fairly significant group of people, women, and that the court is right to take account of constitutional values without being tied to the particular historical understanding of when the amendment was adopted. The second point they make is whatever you think about that first point, respect for precedent, Roe itself and its repeated reaffirmation, notably in a case called Planned Parenthood versus Casey,

require you to have a very good reason to throw out 50 years of constitutional protections. And they say the majority did not come close to making that case. And what do they say about the likely impact of this ruling? the likely impact of this ruling. So they're saying that in states that ban abortions, a woman who becomes pregnant as a consequence of birth control failure or rape or incest has no choice but to transform her life and carry the fetus to term. And from the point of view of abortion rights advocates, that's a dystopian, handmaid's tale kind of way of thinking about the world. Michael, let me give you a taste of the dissent.

Let me quote from it. A state can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Right. And in reading these dissents, it's clear how palpable their frustration is. And I think that is obviously shared by many progressives around the country who are absorbing this ruling. But, Adam, we've talked about this a lot on the show. For a very long time, legal scholars, even liberal ones, have said that Roe v. Wade was legally vulnerable. And they might not agree with what Justice Alito wrote in his opinion, but they understood that the ruling was always on shaky ground. three liberal justices, and really for anyone who is reeling from this decision today, what is the most compelling case that abortion should be a constitutionally protected right versus one left to elected lawmakers, as it now is? So I think there are two responses to that. One is that the right to abortion, if there is one, really wants to be rooted not so much in the

due process clause, but in the notion that women need access to abortion to be full participants in American life. And that would be grounded in the Constitution's Equal Protection Clause. Interesting. And many scholars say that would be a better approach. And then the second point is, let's assume that it was on shaky ground. Let's assume that it wasn't the best decision ever rendered by the Supreme Court. It's been part of the fabric of the nation for 50 years. And everyone agrees you need a very good reason to overrule a major constitutional precedent. a very good reason to overrule a major constitutional precedent. And at least the dissenters would say that the court did not clear that high bar and that it would be one thing

for justices to consider the matter and think better of what they had said earlier. It's another thing for a bunch of new justices to come in, and simply because there's new personnel on the court to give rise to a different result. So it sounds like these dissenters believe that no matter how Roe is decided, this group of justices might have found a way to invalidate it. That's certainly their point of view, yeah. So right now, it very much feels like a long era in the abortion debate is now over. The forces aligned against Roe have prevailed in the biggest possible way, and it will unleash this transformation in the legal system and in American society. But I'm curious, is that how it must have felt back in 1973 when Roe was

decided and suddenly there was a constitutional right to an abortion and the forces fighting for abortion had won? So I guess what I'm getting at is just how settled is any of this, really, especially given what you just said, which is that personnel changes on the court seem to be the biggest decisive factor at play. Well, in the short term and in the medium term, Michael, Roe is gone. The constitutional right to abortion is gone. There will be changes on the Supreme Court over time, and majorities can shift. And it's possible that the court will again have a liberal majority that might find a right to abortion in the Constitution, perhaps on a different theory than Roe had.

But that would require a lot of things to happen over a long period of time. And I think the story here is not that the Supreme Court is a kind of ping pong match, but rather that we have reached a new and very different and lasting settlement of this issue, one in which states can essentially ban a procedure that until yesterday and for the half century before yesterday was an established constitutional right. Well, Adam, thank you very much. I appreciate your time. Thank you, Michael. Today, the Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized.

They didn't limit it. They simply took it away. On Friday afternoon, President Biden denounced the Supreme Court's ruling in a speech from the White House. That's never been done, to a right so important to so many Americans. But they did it.

It's a sad day for the court and for the country. In Florida, his predecessor, Donald Trump, who appointed three of the justices who voted to reverse Roe, praised the decision, calling it, quote, the biggest win for life in a generation. We'll be right back.

Here's what else you need to know today. On Friday, several Republican governors said they planned to pursue new restrictions on abortion in light of the court's ruling. Aides to the governor of Virginia, Republican Glenn Youngkin, said he would push for a ban on the procedure after 15 weeks of pregnancy. Currently, Virginia allows abortion until 26 weeks. Meanwhile, a group of major employers acted to blunt the ruling's impact. Disney, Dick's Sporting Goods, Netflix, J.P. Morgan, and Sony, among others,

said they would cover some or all of the travel costs required to obtain an abortion in a state where it's legal. Today's episode was produced by Rob Zipko, Eric Krupke, Sidney Harper, and Carlos Prieto. It was edited by Lisa Chow, with help from Mark George and Ben Calhoun, contains original music by Marian Lozano, and was engineered by Corey Schreppel. Our theme music is by Jim Brunberg and Ben Lanthorpe of Wonderly. That's it for The Daily. I'm Michael Barbaro.

See you on Monday.