The Daily - The Legal Vulnerability of Roe v. Wade

Episode Date: May 20, 2019

From the day Roe v. Wade was decided, some have seen the constitutional right to an abortion as an inferred right rather than a guaranteed one. That distinction has become a threat to the law’s survival. Guests: Sabrina Tavernise, a national correspondent for The New York Times, spoke with Adam Liptak, who covers the Supreme Court for The Times. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: Because the court led by Chief Justice John Roberts tends toward incrementalism, it is more likely to hear cases that chip away at abortion rights than to overturn Roe v. Wade directly.But after nearly five decades, the anti-abortion movement is closer than it has ever been to dismantling Roe.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, from the day that Roe v. Wade was decided, the constitutional right to an abortion has been seen to some as an inferred right, not a guaranteed one. My colleague Sabrina Tavernese talks to Adam Liptak about why that distinction has only now become a threat to the law's survival.

It's Monday, May 20th. So, Adam, take me back to the beginning. What was the basis for Roe v. Wade in the decision there? Well, the key basis was a case called Griswold v. Connecticut. Number 496, Estelle T. Griswold et al. Pellance v. Connecticut. And that was a case about a Connecticut law that forbade people, including married couples, from obtaining contraception. It wasn't really enforced. It was a stupid law, but it was on the books. And it was challenged.

Mr. Emerson. Mr. Chief Justice, may it please the court. The Supreme Court wants to strike it down, but can't easily find the basis in the Constitution to strike it down. Because it denies rights to married couples that should not be denied. That should not be denied in the judgment of this court. That's correct, Your Honor. Is there any constitutional provision that says that?

We're relying on the due process clause. Is there any other constitutional provision on which you could possibly rely on? We rely on the third, fourth, and fifth amendments insofar as they embody a concept of the right of privacy, Your Honor. And identifies a right to privacy. But that right to privacy is not spelled out in the Constitution. So Justice Douglas, writing for the majority, says he can find it in penumbras and emanations. What is a penumbra and emanation?

find it in penumbras and emanations. What is a penumbra and emanation? A penumbra is like, you know, if a ghost were to come into your house, the kind of shadowy halo part around the ghost would be the penumbra. And an emanation is, you know, the things that the auras that objects send out. But Justice Douglas says it's in there. You know, the various parts of the Constitution recognize a right to privacy. Let me read you just a little passage from the Griswold decision because it'll put a smile on your face. It says that the right of association contained in the penumbra of the First Amendment

is one. The Third Amendment and its prohibition against quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment is another facet. The Fifth Amendment itself, incrimination clause, is another facet. The Ninth Amendment provides the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. So all of these provisions speak to privacy in some sense. None of them speak to privacy in the sense of a right to contraception in a particularly obvious way, which is why the Griswold decision says you have to kind of put them all together in a stew and the steam that comes out of them is this right to privacy. So they've basically taken a piece of the First Amendment, piece of the 14th, piece of the 9th, and then a piece of something else. Throw in the 4th and the 5th, sprinkle in a little 3rd, and there you have your right to privacy. And they created a right to privacy that protects

contraception. I think that's fair, and people have made fun of it. And as these cases go forward, Supreme Court justices try harder and harder to actually locate this right in the Constitution. So Adam, tell me about Roe. How did it go down? We'll hear arguments, number 18, Roe against Wade. In the early 1970s, civil rights litigators, feminists, women's rights litigators, started to take aim at laws in states that made it very hard for women

to get abortions, that essentially banned abortions. And in one of them, in 1970, a couple of young lawyers go to court and challenge a Texas law that criminalizes Mr. Reddington, you may proceed whenever you're ready. Mr. Chief Justice, and may it please the court. And challenge a Texas law that criminalizes abortion and forbids it in almost every circumstance. Very broad law. The case originated with the filing of Jane Rowe,

an unmarried pregnant girl. Jane Rowe had gone to several Dallas physicians seeking an abortion, but had been refused care because of the Texas law. And they don't really have many precedents to work with. Certainly we cannot say that there is in the Constitution, so stated, the right to an abortion. But Griswold, of course, is the primary case,

holding that the state could not interfere in the question of whether or not a married couple would use birth control. So they largely rely on the Griswold precedent. There is a great body of cases decided in the past by this court in the areas of marriage, sex, contraception, procreation, childbearing, and education of children, which says that there are certain things that are so much a part of the individual concern that they should be left to the determination of the individual. There's a right to privacy, and if it encompasses contraception and we're already in the world of

reproduction, it should also protect the right to abortion. So the ruling for Roe is built on the ruling in Griswold, which is built on a perceived right to privacy intuited from the Constitution. You can call it an inference, sure. I do feel that the Ninth Amendment is an appropriate place for the freedom to rest. I think the 14th Amendment is equally an appropriate place under the rights of persons to life, liberty, and the pursuit of happiness. I think in as far as liberty is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy. You're relying in this branch of your argument

simply on the due process clause of the 14th Amendment? We had originally brought the suit alleging both the due process clause, the equal protection clause, the 9th Amendment, and a variety of others. And anything else? Yeah, right. And did the litigators at the time think that this was shaky? What were the other legal strategies that would have been available to them at the time? And why didn't they take them? Well, it was early in the movement in the courts for women's rights. come to pass that many, many feminists and others believe that a stronger argument than the privacy right argument was one grounded in equal protection that laws against abortion profoundly

disadvantage women as opposed to men and hold them back in their careers, deprive them of bodily autonomy. And so that an argument grounded in the Equal Protection Clause of the Constitution might have been a more powerful argument, but it was too soon. It just simply wasn't an option at the time of Roe because there was not enough legal scholarship on it. Well, there was not enough court precedent on it.

It took for Ruth Bader Ginsburg to establish that the 14th Amendment, initially about race, also had something to say about women. So they went with this relatively recent legal precedent, which was Griswold. Yeah, if I'm a litigator at that time, that's the best case I got. So that's the one I'm going to press. And it worked. And Adam, what's the reaction to the case? The reaction to Roe is surprisingly tepid.

It seemed to many Americans to be a perfectly ordinary, acceptable, not super controversial Supreme Court decision. But gradually the opposition starts to build. And it's based in large part on why did the Supreme Court make this a constitutional right? Why isn't this something that can be decided by people through their legislatures in state houses? And it becomes something that the conservative base and religious groups really care about. And Rose starts to be a shorthand for a truly illegitimate decision that becomes, I mean, people know almost no Supreme Court decisions, right? They know Brown v. Board of Education, maybe they know Bush v. Gore, maybe they know Citizens United, but they know Roe and they have strong feelings about it one way or the other.

And the anti-Roe feelings start to build by the late 70s. So Adam, when is the instability of Roe first put to the test? There were repeated efforts to get in front of the Supreme Court and get Roe overruled. But the key clash, the most important moment and the greatest moment of peril for Roe came in 1992 in a case called Planned Parenthood v. Casey. Well, your argument now, number 91744, Planned Parenthood of Southeastern Pennsylvania versus Robert P. Casey. Casey's a case about a Pennsylvania law that imposed a whole bunch of restrictions on abortion rights, made it very hard for women in Pennsylvania to get abortions. But the way the litigators framed the case was in so many words, should Roe v. Wade be overruled? was in so many words, should Roe v. Wade be overruled?

It is our position, Your Honor, that if this court were to change the standard of strict scrutiny, which has been the central core of that holding, that in fact that will undercut the holdings of this court and effectively overrule Roe v. Wade. And in that case, a lot of people, including abortion rights activists, thought that Roe would be overruled. In fact, part of the calculation in bringing that case to the court in an election year, 1992, was that if the court was going to overrule Roe, let them pay a political price for it.

Interesting. And tell me about that case, Adam. What happens in Casey? Both the petitioners and the cross petitioners, as well as the United States, as amicus, have urged us to re-examine the court's holding in Roe against Wade, decided in 1973. The court, to the surprise of almost everyone, reaffirmed, modified, but reaffirmed the right in Roe. And three Republican appointees, all of them thought to be hostile to abortion. Justices Sandra Day O'Connor. Some of us as individuals find abortion offensive to our most basic principles of morality. But that can't control our decision.

David Souter. If there was error in Roe, its significance is outweighed by the importance of following prior precedent. and Anthony Kennedy join together and write a joint opinion saying we're going to reaffirm Roe. We reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability. There's much more of a sense that women's rights are involved by the time you get to Casey, and, moreover, that respect for precedent

requires Roe to be reaffirmed because women have come to rely on it. A willing breach of it would be nothing less than a breach of faith, and no court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that. So in 1992, we have what is really now the leading abortion precedent. People talk about Roe. Roe is kind of a shorthand for abortion rights. But it's the Casey decision that governs this area. And Casey introduces a different legal standard. It says states can regulate abortion

until the fetus is viable. Throughout the woman's pregnancy, the state may enact measures designed to persuade the woman to choose childbirth over abortion. Put it another way. But can't impose an undue burden. The state may not place an undue burden on the woman's choose childbirth over abortion. Put another way... But can't impose an undue burden... The state may not place an undue burden on the woman's right to choose an abortion. Can't place substantial obstacles between women and their ability to obtain abortions. And that sounds like it's a standard that has real teeth,

but if you think about it, it's a little bit squishy. And the world we live in is now the Casey world, not the Roe world. How is it squishy, Adam? Well, what's a little bit squishy. And the world we live in is now the Casey world, not the Roe world. How is it squishy, Adam? Well, what's an undue burden? How much burden is due? How much burden is undue? Judges are going to make up their own minds about that. Is this an undue burden? It's a burden. Is it an undue burden? It's a set of words. I mean, you and I, Sabrina, I don't know that we'd have a particularly easy time operating in perfect good faith trying to figure out whether a burden is undue or not. Right. Right.

So, Adam, in 1992, these conservative justices, on the one hand, they helped to uphold Roe. And that's on the grounds of a right to privacy. But at the same time, in doing so, they make it possible to go after abortion in a different way, right? Right. And over the decades afterwards, there are lots of abortion restrictions, making it harder to get an abortion but not shutting down the right entirely. I'm pleased that all of you have joined us as the Partial Birth Abortion Ban Act of 2003 becomes the law of the land. Many of them are sustained. Some of them are knocked down. But in general, the right to abortion contracts. But we have Anthony Kennedy on the court, who's a cautious supporter of abortion rights and is in the majority in 2016

when the court strikes down a couple of tough Texas restrictions. So there's back and forth and ebb and flow. Kennedy leaves the court last year, and Justice Brett Kavanaugh, more conservative, joins the court. So now there's a five-justice conservative majority on the court, and we enter a new world, one in which many, many restrictions are likely to be upheld, and one in which it's at least conceivable in the medium term that Roe itself is at risk. It was only a week after Brett Kavanaugh was sworn in in the United States Supreme Court when Indiana appealed a law that would allow the state to have the final say, not a woman, when it comes to abortion.

There are laws that place restrictions on the abortion right, waiting periods. It gets harder and harder for women, particularly poor women, particularly poor women, particularly poor women in red states to get abortions. But the court doesn't have to overrule anything. That's one category of cases. Kentucky's ultrasound abortion law upheld on appeal. It requires doctors to perform ultrasounds and show fetal images to patients before abortions. The second category of cases are these much more extreme laws that really try to shut down abortion as a practical matter statewide. Texas lawmakers just introduced an extreme bill unlikely to pass that could punish women who have abortions with the death penalty.

In Louisiana, a so-called heartbeat bill that bans abortions after roughly six weeks has passed the Senate and is being rapidly pushed to the House. These fetal heartbeat laws barring abortions after six weeks. With the ink barely dry on Alabama's new abortion law, the strictest in the nation, the movement to push anti-abortion legislation in other states is gathering steam. Those are squarely in conflict with Roe. If the court is going to uphold those laws, it would have to overrule Roe. And that would be a real shock to the system. And I don't expect the court to do that particularly soon when it has the alternative of narrowing down, chipping away at, hollowing out the abortion right without the headline in the New York Times, Supreme Court overrules Roe v. Wade 5 to 4. Supreme Court overrules Roe v. Wade 5 to 4.

So why are these states like Alabama passing these laws that directly challenge Roe? What are they really aiming at if they know that the court probably isn't going to take them up? Well, I think two things are going on. One is it's good politics. I think in these states to vote for such a law is good for, you know, your election chances. The second is why not ask? Why not try to force these cases to get up to the court? Why not, when you think you have a more favorable climate, give the court the chance? What's the downside? My guess, though, is that because Roe clearly does not allow these laws, they'll get struck down in the lower courts. And then the

Supreme Court doesn't have to. And then the Supreme Court doesn't have to take appeals. The Supreme Court gets to decide what it's going to decide. And I don't think the Supreme Court in the short term is going to want to take up one of these extreme laws. And Adam, is it your belief that eventually one of these state laws will go to the Supreme Court? That it doesn't just seem like the moment Kavanaugh was appointed, but enough time has passed that one of these laws will get taken up? I don't know how it happens. My guess is that if the court is as conservative as it is now or moves even more conservative, which is well within the realm of possibility, it will, in the fullness of time, by which I mean five years, ten years, find a way to revisit Roe.

I don't think it's going to happen tomorrow. It's very hard to predict what the context is, what law it is. But this is on the long-term agenda of the conservative legal movement. And within the medium term, it's entirely plausible that the court will overrule Roe. And Adam, once this happens and the Supreme Court takes up one of these laws, will the original legal vulnerability, you know, that idea that this is all built on privacy, will that be the kind of thing that litigators go after?

Sure. I mean, people will frame what is largely a moral or political argument in legal terms. And because Roe was built on what many legal scholars think was a questionable basis, that's going to be the door you push on. But I wouldn't, I don't think, how to say this politely, these cases don't turn on the law. These cases turn on the desired outcome. So it may be that in 1973, seven justices were perfectly comfortable in finding that the Constitution contained a right to privacy, one that extended to a constitutional right to abortion, and that 50 years later, we have another set of justices, five of whom say,

no, we can't find that reasoning in the Constitution. And that tells you something about constitutional adjudication. It's a little more freeform than you would think. It's not tax law. It's a little more open-ended. So, Adam, if Roe gets overturned because of this privacy problem, would liberal activists just come back at the issue, trying to base it around equality? If we had a full-scale attack on Roe at the Supreme Court,

all of the arguments would be put before the justices the first time around. So it wouldn't be like waves of arguments. But for the equality argument to win in a setting where the privacy argument is lost, you would need different justices on the court. Justices who are hostile to Roe are hostile to Roe, whether the arguments in support of it are based on privacy, equal protection, or anything else. They just don't think the Constitution speaks to this right. And it's not one of those situations where you can go, oh, if only in 1973, Harry Blackmun, the author of Roe, had had better reasoning.

The right would be more secure today. This is a big, controversial social issue, and the justices' legal opinions will map on pretty closely to their intuitions about politics and morality. Thanks a lot, Adam. Thank you, Sabrina. President Trump is distancing himself from the latest state laws passed by Republicans in Alabama and Missouri that ban abortion even in the case of rape or incest. In a series of carefully worded tweets that did not specifically mention the laws, the president described himself as strongly pro-life, but insisted on exceptions for rape and incest. His tweets reflect a growing fear among national Republicans that the state laws could alienate moderate voters ahead of the 2020 presidential election.

Look, I believe what they did in Alabama is unbelievable. Other states are doing it. The idea that women in this country should not be able to control their own bodies is beyond belief. They have that constitutional right. On Sunday, Democratic presidential candidates, including Senators Bernie Sanders and Amy Klobuchar, condemned the new anti-abortion laws. This is dangerous. It is a place that we have never seen. I think people have always warned that this could happen, and it's actually happened.

And when I talk to people, whether they are pro-choice or they are personally opposed to abortion, a lot of them, Chris, don't think we should go this direction. 73% of Americans don't want to overturn the world's human rights. We'll be right back.

Here's what else you need to know today. The government of Austria was plunged into scandal over the weekend when a secretly recorded video emerged showing the country's far-right vice chancellor promising government contracts to a woman posing as a Russian nationalist. The video, which appeared to be part of a sting operation, deepened suspicions that Russia has penetrated

the highest levels of Austria's government at a time when Russia is seeking to influence governments across Europe. Soon after the video became public, the vice chancellor Heinz-Christian Strzoka apologized and resigned, and Austria's chancellor called for new elections to replace him. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.