The Daily - The Supreme Court Considers the Future of Roe

Episode Date: December 2, 2021

On Wednesday, the Supreme Court heard a case that was a frontal challenge to Roe v. Wade, the nearly 50-year-old decision that established a constitutional right to abortion.The case in front of the justices was about a Mississippi law that bans abortions after 15 weeks of pregnancy.For the state to win, the court, which now has a conservative majority, would have to do real damage to the central tenet of the Roe ruling.We explore the arguments presented in this case and how the justices on either side of the political spectrum responded to them. Guest: Adam Liptak, a reporter covering the Supreme Court for The New York Times.Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: After oral arguments, the Supreme Court seemed poised to uphold the Mississippi abortion law. Whether it will overrule Roe v. Wade remains unclear.Here’s what to know about the Mississippi law.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 Sabrina Tavernisi. This is The Daily. The Supreme Court heard oral arguments in the biggest abortion case to come before it in the last 30 years. I spoke with my colleague, Adam Liptak, about how far the court's new conservative majority may go in deciding the future of abortion in America. It's Thursday, December 2nd. So Adam, when we had you on the show at the start of the term back in October, you said this would be the most important Supreme Court term in decades. And a big reason for that is the case that the court heard yesterday. So tell us about this case. This case is a true blockbuster. It's a frontal

challenge to Roe v. Wade, the 1973 decision that established a constitutional right to abortion. And it asks the court to overrule Roe and precedents following it, undo that very important precedent, and allow states to ban abortions whenever they want to. Okay, this sounds like the big abortion case. I mean, the one that people have been thinking about. How exactly does it challenge Roe? This is a case about a Mississippi law. Mississippi passed a law that would ban most abortions after 15 weeks of pregnancy.

Roe says you can't ban abortions before the fetus can survive outside the womb, and that these days is around 23 weeks. So this moves the line back about two months, and that's plainly unconstitutional under Roe. So for Mississippi to win this case and for its 15-week law to survive, the court would have to do real damage to the holding in Roe. So this actually takes direct aim at the heart of Roe. Right. Almost everyone would agree that the key holding in Roe v. Wade was that states cannot ban abortions before fetal viability.

So, Adam, what were your expectations going into these oral arguments? Well, I didn't think the court took the case simply to strike down the Mississippi law. All kinds of red states pass laws like this all the time, and they're routinely struck down by lower courts, as this one was, because it's at odds with Roe v. Wade. So I think they took the case to do something, was because it's at odds with Roe v. Wade. So I think they took the case to do something. And they took it after a series of new justices had reached the court.

Right. Donald Trump appointed three justices to the Supreme Court. And he said of all of them that he wanted them and expected them to overrule Roe v. Wade. So you have a new court and you have them doing something quite unusual. And that led me to think they were prepared to uphold the Mississippi law. And the question was whether they do that or even more than that. We will hear argument this morning in case 191392, Dobbs versus Jackson Women's Health Organization. Tell us how the argument started. Well, the argument starts with the lawyer for Mississippi. It's Solicitor General Scott Stewart.

Roe v. Wade and Planned Parenthood v. Casey haunt our country. He basically says, you, the court, have made a grave mistake in getting into this area at all. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life. And he urged the judges to get out of the business of deciding where to draw the line and to return to the states the question of when to allow abortion, whether to allow abortion at all. When an issue affects everyone and when the Constitution does not take sides on it, it

belongs to the people. He says that the Constitution certainly doesn't mention the word abortion, and he says that there's nothing in the text, history, or tradition of the Constitution that speaks to abortion one way or the other. Roe and Casey have failed, but the people, if given the chance, will succeed. This court should overrule Roe and Casey and uphold the state's law. I welcome the court's questions. And how do the justices respond?

The three liberal justices, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, seem deeply unhappy with this line of reasoning. The right of a woman to choose, the right to control her own body, has been clearly set for since Casey and never challenged. They were very much in favor of retaining precedence. Fifteen justices over 50 years have, or I should say 30 since Casey, have reaffirmed that basic viability line. And to disturb those cases, to overrule them, simply because we've had a change in personnel

at the court, would represent, they said, an existential threat to the court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts. Okay, so they're bringing up politics and being concerned about the appearance of that. What other kinds of areas are they concerned about? Well, they're also deeply concerned about the right to abortion as an aspect of women's equality and women's autonomy. When does the life of a woman and putting her at risk enter the calculus? And said that without access to abortion care,

women can't be full participants in the life of the nation. And now the state is saying to these women, we can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice, because we believe what? Another concern is that if you overrule Roe, there are a bunch of cases that used similar constitutional reasoning. We have recognized that sense of privacy in people's choices about whether to use contraception or not. We've recognized it in their right to choose who they're going to marry.

I fear none of those things are written in the Constitution. And Justice Sotomayor said all of those may be at risk if the court overrules Roe. said all of those may be at risk if the court overrules Roe. Why do we now say that somehow Roe and Casey are so unusual that they must be overturned? So in other words, those cases also don't have specific roots in the Constitution itself. And if Roe falls, they would also be at risk. Yeah, so how well-rooted they are in the Constitution is the subject of a lot of controversy. But I would say that they're similarly rooted in the Constitution and Justice Sotomayor would say that whatever theory takes out Roe

takes out these other decisions too. Now, I'd note that Justice Amy Coney Barrett followed up on that. Would a decision in your favor call any of the questions, any of the cases, sorry, that Justice Sotomayor is identifying into question? No, Your Honor. I think for a couple reasons. And the lawyer for Mississippi said, no, no, no, all of those decisions are secure. These are cases that draw clear rules. You can't ban contraception, can't ban intimate romantic relationships between consenting adults, can't ban marriage of people of the same sex. Clear rules that have engendered strong reliance interests and that have not produced negative

consequences or all the many other. All of those, he said, are accepted in a way that Roe is not, that Roe is controversial and continues to be controversial among the American public in a way that, say, even a right to same-sex marriage, which was quite controversial just a few years ago, has largely been accepted. So, Adam, I feel like I have a pretty good idea of where the liberal justices fall on this case, but there are only three of them, and there are six conservatives. So I feel like the big question is, how are the conservative justices seeing this case? What sense did you get from their questions? Right. Well, the first half of the argument was really devoted largely to the liberal justices asking questions of the lawyer for Mississippi. So you didn't start to get a sense of where the conservative justices were until the second lawyer, the lawyer for Mississippi's abortion clinic, got up to argue, and then the conservative view started to come into focus.

view started to come into focus. We'll be right back. So Adam, what case does the other side make? Mr. Chief Justice, and may it please the court, Mississippi's ban on abortion two months before viability is flatly un one, this is established precedent. It's precedent that's been reaffirmed and moreover reaffirmed in a 1992 decision planned parenthood against Casey that was very careful in its discussion of precedent and that this is established law. Second, Casey and Roe were correct. For a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings

is a fundamental deprivation of her liberty. She says that this is necessary for women to be full participants in American life, that the autonomy of women requires them to be able to control their bodies. Eliminating or reducing the right to abortion will propel women backwards. Mississippi's ban would particularly hurt women with a major health or life change during the course of a pregnancy, poor women who are twice as likely

to be delayed in accessing care, and young people or those in contraception who take longer to recognize a pregnancy. To avoid profound damage to women's liberty, equality, and the rule of law, the court should affirm. So how did the conservative justices respond to the abortion clinics argument? Well, the most active question respond to the abortion clinic's argument? Well, the most active questioner on the right side of the court was Chief Justice John Roberts. And he asked a whole series of questions in which he tried to stake out what, in his mind at least, would be a middle ground. The point you made about the impact on women and their place in society, those were certainly made in Roe as well. What we have before us, though, is a 15-week standard.

Which is trying to find a way to uphold the Mississippi law, saying that a 15-week line was okay, but not overruling all of Roe v. Wade entirely in this case. If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they've had the fair choice, opportunity to choice. And why would 15 weeks be an inappropriate line? And he spent quite a lot of time doing a couple things in that area. First of all,

he tried to establish that viability was not a central part of Roe, and that would give him the ability to redraw the line somewhere else. And then second, he made the point that, you know, what's wrong with 15 weeks? 15 weeks gives the vast majority of women, he says, an adequate opportunity to decide whether to have an abortion or not. Got it. So Roberts is essentially, as you've told us many times on the show, Adam, being Roberts. I mean, he's trying to thread the needle here and kind of strike a compromise in a way that avoids the appearance that his court has

become politicized. And that means upholding the Mississippi law and letting Roe live. That's right. And how do the other conservative justices react to this sort of middle road that Roberts is charting? react to this sort of middle road that Roberts is charting? Well, so almost nobody seems to like Chief Justice Roberts' approach. Not only is there essentially silence from the other conservative justices on the 15-week proposal, even the lawyer for the Mississippi Abortion Clinic, when asked about it, doesn't think that's the right place to land. Without viability, there will be no stopping point.

States will rush to ban abortion at virtually any point in pregnancy. Mississippi itself has a six-week ban that it's defending with very similar arguments as it's using to defend the 15-week ban. She says that without viability, if it's 15 weeks today, it'll be 12 weeks next year and six weeks the year after, that there are all these laws that are ready to spring into effect. And, you know, the court not only has to announce a result, it has to give a reason. And unless Chief Justice plus some other justices are capable of making a principled argument in favor of 15 weeks, as opposed to just saying, sounds okay to me. That does not place abortion rights on firm constitutional footing. So Roberts is really completely on his own here.

I mean, even the lawyer for the abortion clinic is saying, no, that middle ground doesn't work. That's right. She says the thing to do is to reaffirm Roe and reaffirm fetal viability as the line. So you said that other conservative justices aren't engaging with Chief Justice Roberts on the middle ground. So then what are they talking about? So my best reading of most of them is that they think this is an all or nothing question, that there's no new place to draw a line. You either affirm Roe and with it the fetal viability line, or you overrule Roe and let states draw the line wherever they want, including in banning abortion entirely.

wherever they want, including in banning abortion entirely. And the two most recent appointees, Justices Amy Coney Barrett and Justice Brett Kavanaugh, were thought to hold the keys to the case in many ways and were the votes that probably Chief Justice Roberts was most hopeful of attracting. But their questioning probably didn't give him very much comfort. Ms. Rickleman, I have a question about the safe haven laws. So Petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child. Justice Barrett, for instance, talked about the availability of so-called safe haven laws, which give women the alternative of bringing their newborn to a designated hospital soon after birth and turning them over to be a ward of the state. Both Roe and Casey emphasize

the burdens of parenting. And insofar as you and many of your amici focus on the ways in which the forced parenting, forced motherhood, would hinder women's access to the workplace and to equal opportunities. I think she is responding to the argument that it's an enormous burden on women's lives and their ability to participate in society to force them to be parents. Why don't the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. There is without question an infringement on bodily autonomy, you know, which we have in other contexts like vaccines. However, it doesn't

seem to me to follow that pregnancy and then parenthood are all part of the same burden. And so... And I think she's saying, well, maybe you can force them to take their pregnancies to term, but the availability of safe haven laws takes out of the argument, the forcing them to be parents piece of it, because it is possible for women to give birth and give up their children. for women to give birth and give up their children. So it almost seems like she's kind of imagining a future in which Roe wouldn't be there and this would be the option, or at least some sort of a future in which this would be a relevant option. I have to think that's why she raised it, yeah.

And what about Justice Kavanaugh? why she raised it, yeah. And what about Justice Kavanaugh? In your brief, you say that the existing framework accommodates, that's your word, both the interest of the pregnant woman and the interest of the fetus. So Justice Kavanaugh says there are two interests at stake, two interests that someone has to balance, that of the pregnant woman and that of fetal life. And the problem, I think the other side and that of fetal life. And the problem, I think the other side would say, and the reason this issue is hard, is that you can't accommodate both interests. You have to pick.

That's the fundamental problem. And one interest has to prevail over the other at any given point in time. And he says, what does the Constitution say about that? When you have those two interests at stake, and both are important, as you acknowledge, why should this court be the arbiter rather than Congress, the state legislatures, state Supreme Courts, the people being able to resolve this. And there'll be different answers in Mississippi and New York, different answers in Alabama than California, because there are two different interests at stake. And the people in those states might value those interests somewhat differently. value those interests somewhat differently. And he suggests that what it says about it is that this should be a decision for state legislatures and not judges. And Solicitor General Elizabeth Prelogar, representing the Biden administration,

says that's not the right answer. Justice Kavanaugh, it's not the right answer because the court correctly recognized that this is a fundamental right of women. And the nature of fundamental rights is that it's not left up to state legislatures to decide whether to honor them or not. And it's true different rules would prevail throughout the country if they're able to afford it or to attempt abortion outside the confines of the medical system or to have a child, even though that was not the best choice for them and their family. to have a child, even though that was not the best choice for them and their family. She's saying that the court has said in the past that there is a constitutional right to abortion, that women have this right, and that that's not something to turn over to the political process. It's a right like other constitutional rights that ought to be protected by the courts.

Thank you, General, Counsel. The case is submitted. The Honorable Court is now adjourned until Monday next at 10 o'clock. So, Adam, it sounds like what you're saying is that the conservative justices, with the exception of John Roberts, are all really, in their own way, with the exception of John Roberts, are all really in their own way, with their own arguments, driving at this kind of central conclusion, which is that

probably Roe needs to be overturned. Is that how you understand it? I think the evidence from the argument is strongly suggestive of that view, that you have five votes to overrule Roe and only the chief justice to find a way to uphold the Mississippi law, but not overrule Roe in so many words. But that's just the argument. The justices will soon cast tentative votes. They'll start writing draft opinions and exchanging them. And it'll be many months of deliberation in person and on paper before they come to a settled final conclusion. So while I do think that's the message we take away from the argument, it's not the final decision, which we don't expect until late June, early July of next year. And Adam, did it surprise you that John Roberts couldn't get anyone to join him? Yeah, it did.

I would have thought that there would be some enthusiasm for stopping short of what, if it comes to pass, will be an earthquake in American life. If the right to abortion goes, if the constitutional right to abortion is discarded, in very short order, in 20 or more states, abortions will become essentially unavailable and America will be transformed. Adam, thank you. Thank you, Sabrina. Thank you, Sabrina.

We'll be right back. Here's what else you need to know today. On Wednesday, the first case of the Omicron variant of the coronavirus was reported in the United States. Health authorities said the patient, who returned to California from South Africa on November 22nd, was fully vaccinated and has mild symptoms. The patient is in isolation and close contacts have tested negative. California Governor Gavin Newsom said that the state would not be intensifying public health restrictions, at least for now. And a 15-year-old boy in suburban Detroit was charged in the shooting deaths of four of his classmates, ages 14 to 17. Authorities said the suspect had emerged from a bathroom in his high school and started firing at students in the hallway. They said the gun used in the shooting had been bought four days earlier by the suspect's father.

The suspect, Ethan Crumley, faces four counts of first-degree murder and one count of terrorism. If convicted, he could face life in prison. Today's episode was produced by Estella Tan, Daniel Guimet, Luke Vanderplug, with help from Michelle Banja. It was edited by Lisa Chow and Mark George, with original music and engineered by Marion Lozano. Our theme music is by Jim Brumberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.