The New Yorker Radio Hour - If Roe v. Wade Goes, What Next?

Episode Date: November 19, 2021

The Supreme Court, with a six-to-three majority of conservative justices, is hearing critical cases on abortion rights. If it approves restrictive state laws, large swaths of the country might quickly ban abortion. Jia Tolentino co-hosts a special episode on the future of abortion rights for Americans, which includes a discussion of the legal issues at stake and the doctrine of privacy that is now in jeopardy, and a visit to the Mississippi clinic at the center of one of the court cases. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick, and I'm here today with my colleague Gia Tolentino. Hi, David. So I recently talked to a young woman who I'm going to call Jane. I guess you could say I was the golden child. So she would always talk so bad about my sister saying, oh, she got pregnant so young, she doesn't know how to take care of it, this and that.

And then she'll turn around and tell all her friends, Oh, my other daughter, she's so amazing. She has AP classes. She's a star student, so much and so on. So I knew it would be so hard for me to come up to my mom and kind of just drop that bombshell and tell her, hey, I'm pregnant. Jane is from Texas, which is where I grew up. And in the 90s in Texas, as with now, sex ed is not mandatory in school. And when it is taught, state law requires that abstinence be stressed as the preferred method of birth control.

and we all know how well that works. I remember growing up, abortion was talked about unequivocally as murder. We did want a kid, but then, again, we just couldn't afford it. I was still in school. I was barely about to end school. I was about to graduate, so it was just so close. It was just that fear of we're not going to be able to give it the life that we would want to give it. hundreds of thousands of people seek abortions every year, each for their own reasons.

But at this moment, the Supreme Court is weighing cases that seek to end the constitutional right to abortion that was established almost a half century ago. That is the subject of our entire program today. Conservative states like Texas have been making it harder to get an abortion for years, decades really. They've taken measures to narrow a time frame in which a woman can end a pregnancy, to complicate the process of getting an appointment. to restrict how and when clinics operate with the idea that many of those clinics will eventually shut down. Jane was 17 and in high school when she got pregnant, she had an afterschool job at a fast food restaurant. She told me that her morning after pill, also known as Plan B, had failed. We just drove around a bit, tried to get our minds a little more calmer.

And then that's when I started calling different clinics and trying to figure out how much money it was going to take because I was working at that time. But since I was so underage, I just didn't know what to do. Yeah. So you had never had the conversation with anyone in your life. Like, what would I do if I get pregnant? Yeah. Yeah. The reasons why we kept it to ourselves is because most of them are the main ones,

was because our families wouldn't accept us. And we knew it wasn't going to go to, like, a pretty path. It was going to be all messy. Except that you had gotten pregnant or accept that, you were that you needed an abortion or both both and it was just really hard because it was just me and him dealing with it like we couldn't really tell anybody another reason why i didn't say anything personally is because how i guess you could say society portrays everything that oh if you get pregnant 18 your whole life is going to fail you right and i just didn't want to hear all that judgment from everybody

at my school. Right. Right. I'm sure you were also just so mad at your plan B. Like, I mean, yeah, like the number of times, too, you know, people are like, oh, why weren't you careful? And you're like, I took plan B, you know, like I. I tried. Yeah. Like, I did my best year, you know. And luckily, I called a good clinic and she told me about Jane's due process and how to do everything and what steps it takes. And so they told you call this organization, they help minors in Texas get abortions. And one of the centers of Jane's due process's work is that, you know, in Texas, you can't, if you're a minor, you can't get an abortion without parental consent, without a judicial

bypass, right? You have to kind of make your case to the court. So tell me about, tell me about the. how it is getting the sort of how does getting the judicial bypass work? Well, as soon as you talk to your attorney, you started figuring out what you want to do and what clinics to go to. And first you have to confirm that you're pregnant because a pregnancy test can be false sometimes. Gotcha. So we would have to do the ultrasound.

And we, it was crazy because when I did it, I had to do it. about three times. Uh-huh. Because the first time I did it with one doctor, but then apparently that doctor left, and I couldn't do my abortion with a different doctor. That's one of the rules they had. If you're going to have an abortion, you're going to have to have it with the same doctor who took your ultrasound.

Uh-huh. I was so upset, so scared, so nervous, because I remember when I was doing the Zoom meeting, it was before. With the judge, you mean? Yeah. Did you ever, were you afraid that, was it ever, were you ever afraid that the judge was not going to approve? Oh yeah. I was, a part of me said that I was going to fail and that it wasn't going to go my way.

And I was just so paranoid about what's going to happen. And I was just so nervous because, again, it's a judge. You don't really think you're going to see a judge unless you're going to do a crime. So it feels like the abortion is a crime in one way. Gia, the young woman you spoke to got an abortion in February, some months before Texas enacted the SB8 law, which is now being reviewed by the Supreme Court. That law is a near ban on abortions after six weeks. What would she have done under SB 8? So SB8 prohibits abortions after six weeks, right?

And at that point, as we know, a lot of women don't even know they're pregnant. It's two weeks after a misperiod if your periods are regular. And as these clinics shut down under these regulations, it gets harder and harder to get an appointment at the ones that remain. So clinics in Texas are sending people out of state, which is enormously difficult if you are of a certain income level, if you can't arrange your own child care. And I actually asked Jane this question, what would she have done if she had found herself pregnant right now? And she told me, she put it this way, she said she would have just given up. She would have become a mother. She would have put her high school graduation on hold.

she would have had a child at 18 that she wasn't ready for. The other big case at the Supreme Court is from Mississippi, the case called Dobbs v. Jackson Women's Health, and oral arguments are set for December 1st. The state of Mississippi has directly asked the court to overturn Roe v. Wade and Planned Parenthood v. Casey, which are, of course, the major precedence on abortion rights. The defendant there is Jackson Women's Health Organization,

which is now the only remaining abortion providence. in the state of Mississippi. We are standing here on a beautiful October Friday outside the Jackson Women's Health Organization. It's funny to think that that all is going to center on this one building, which is like a pretty unremarkable building, except for the fact that it is quite pink. It is like a beautiful pale pink.

I believe they call it the pink house. And, yeah, it's a little. Let's go in. New Yorker writer Rachel Monroe was there recently to meet with the clinics director, Shannon Brewer. You're okay. Hey, how you going, Sue? Shannon Brewer, she's the clinic director. We've been seeing a lot of patients this week.

The Louisiana clinics are full, and then, of course, with Texas, you got the SB 8 going on. So literally the same week it came into a festival. The very first day, our phones rang from 8 o'clock until we left that day. And it was like Texas people, and they were like on panic mode. They were crying. They were upset. They were going through so much. Normally we see patients three days a week.

We're now seeing patients five and some weeks six days a week. Oh, my gosh. Yeah, some weeks. Yeah. I have been here. It's been to me 21 years. and I started out part-time as a sterilization technician. It was like, you know, it's just another job.

You know, I'm like, good, I got me a job. I'm happy, you know. And once I started learning the political aspects of it, it changed to, you know, I'm a part of something that's a little bit deeper than just clocking in every day. So a lot of women really don't know what's going on out here. They don't know about the fight. They don't know that we're dealing with. with these new laws that they are trying to put in place

and we're fighting all of these laws. They're amazed by it. Can you talk a little bit about, like, who are the patients who come here? We serve all types of women. There is no one type of women. Because, of course, because we're here in Jackson and we're the only facility in Mississippi,

you know, we do serve predominantly a lot of African-American women here, a lot of women who, you know, are already struggling. you know, as far as health care and stuff like that, they're already having issues with that. We serve a lot of those women, actually. We really do. Right, Rachel, it's so. The New Yorker.

And they wanted to know if you wanted to talk to them. Yeah, I would prefer to remain anonymous. Yeah, most of our doctors do. Yeah. That's totally fine. Yeah, I've been coming here to Jackson Women's Health Organization for almost three years. Can you, I guess, maybe talk about some

the security stuff that you have to do, even just that you were like trying to figure out today? Yeah. So for safety purposes, we always use a rental car so that our personal car isn't able to be tracked or located. Just with the history of violence against abortion providers in this country, we try to take every precaution to be as safe as possible. So actually back in March of this year, my identity was somehow made known to the protesters. And then they ended up harassing the clinic where I work. And so that made me stop coming here for a little while, and then I ultimately found a new job. So I'll be leaving Mississippi. Oh, gosh. But continuing to come here. Yeah. Okay. And what are you thinking about and watching with this Supreme Court case that

centers on this clinic? A 15-week ban. Like, what is that, I guess, as a medical professional, Like, is there any sort of scientific basis to that as a... Absolutely not. Standard, okay. Yeah, it's basically just drawing a line in a sand. In general, first trimester abortions are a little bit safer than second trimester abortions, but all abortions are much safer than carrying a pregnancy to term. So pretending like this is in a woman's best interest is just a farce.

Ma'am, they just want to kill your baby. You got a little woman or a little man that deserves to live. There's the first patients of the day are starting to leave the clinic. Sort of a hectic vibe here at the Pink House. For these innocent little children who are having to die at the murderous knife of this abortionist doctor and all of these evil wicked supporters, Father, Lord Jesus, I pray that you would just open the floodgates terror in such a way that it would help them see that they are going to die and go to hell if they do not trust you as their Lord and Savior.

Lord, that there would be a... It's like I'm wondering if I could see the literature that you're handing out to folks. Sure. Yeah. I was just telling John about this campaign that Life Action League is what is 2363. What is 2363? It's the average number of babies that are aborted in America every day. Our thing is, scientifically, I mean, DNA says it's a human being from the very beginning of conception.

Now, it might not look like you and me, but it is a human being. I mean, at what point is it okay to abort that? You know, 20 weeks where they've got some hair and eyelashes and they're totally, everything's working. Everything's present. So it's just a matter of, do you believe that it's a human being from the beginning or not? I think, and we do. We do. And how long have you been coming out here?

How long have you been up to this? I think about 12 years. Oh, gosh, wow. Yeah. And are you paying attention to the Mississippi law that's now being heard by the Supreme Court case? Is that, oh, you're smiling at that. Well, can I say I don't have time to really? I mean, my heart is here.

My heart is trying to help women here. Okay. I do pray that Roe versus Wake is over turn. I would love to see it go back to each individual state. And I think that's where it belongs. And so if this clinic does get shut down because whatever happens in the courts, do you all get to retire or you move on to what happens next? There's still going to be women to help, right?

And babies to help. And I would love to see us have like maternity centers bring up where we could minister to these women, mind, body, and soul. I know everybody's outside picketing and wanting you to love your child. I do love the child that I have, but I just don't feel like that I can go on with the pregnancy. What brought me here are the severe laws in Texas. I had to drive here to be able to make my own decision as a woman. This clinic is a lifesaver.

I am extremely sick. I am not able to function. I'm not able to drink any water. I'm not able to hold any food down. I'm not able to care for my other child. It's just not ideal for me to have another kid. So did you come here from Texas? I did.

I'm from here. I'm from Mississippi. I just lived there, better opportunities, living a better life with my kid. But yeah, I'm so glad to be able to come home and do this. That's it, and I'm married. It's not like I'm having a kid, and my husband doesn't know.

buy somebody I'm just randomly having sex with. No, we're both business owners. We're married and we know the type of life we want to live. We don't want a bunch of kids. I can't handle it. My body can't handle it. And it's a decision we made. And what impact did the Texas law have on your life?

I couldn't make my own decision. I feel like that's taken away from me. I feel like somebody else is telling me what I should do with my body. And it's not right. It's my body. It's my decision. my choice is my life it's my soul if it's going to hell so i just feel like they don't have the right to do that like um especially a man like you all have to do nothing we have to do everything and you have a

decision on what i'm going to do i think not so i drove all night i left at 2.30 in the morning with my six and three quarter year old and we drove all night dropped him off grandma and I'm here and I don't feel bad one bit about it. Thank you so much for sharing that. No problem. Have a good day everybody. Appreciate you letting me like come in and bother you. Do you think there's a chance that you all will have to close? I don't see us closing but yeah we don't know like I said this is this is probably the first time when people ask me about it that I'm I don't have a definite answer because of the fact that it's the Supreme Court and they took it because I still can't believe it.

I usually like, no, we're going to fight this today and we're going to do this, we're going to do this. But this time, it's really, you really don't know what's going to happen. Are you going to go for the arguments? Are you going to go up there? Yes, we're going. And that must be like if it goes not in your favor, then it's like the case has the name of this clinic. Does that bother you at all? Is that like... No, that doesn't bother me.

The fact that it has the name of the clinic. Because whichever direction it goes in, every pro-choice person in America, they'll know that, you know, we were here and we fought all the way to the end. They will know that we were here for them at all times. So I don't have a problem with that at all. If they rule in a way that's not in your favor,

than what happens next. The next day is we figure out how to help women in whatever way we can. The next step is not to just, you know, we lost. The next step is always, how do we make this work? That's what women do. We figure out how to make something work.

That's Shannon Brewer at the Jackson Women's Health Organization with the New Yorker's Rachel Monroe. The Supreme Court is hearing arguments in their case in December, and in a minute, constitutional scholar and New Yorker writer Jeannie Suk Gerson takes a look at the Supreme Court and the legal road ahead if they end federally guaranteed abortion rights. This is the New Yorker Radio Hour. Stick around. This is the New Yorker Radio Hour. I'm Gia Tolentino.

And I'm David Remnick. Gia and I are taking the hour this week to look at the future of abortion rights in America. So, as we know, the Supreme Court is wrestling with two state laws, with possible repercussions for abortion access all across the country. On the one hand, there's Texas's SB 8, which is already in effect while the judges are deciding whether or not it's constitutional. And in a couple weeks,

the court hears oral arguments in the Mississippi case. That one is known as Dobbs v. Jackson Women's Health Organization. So there are a lot of issues here we need to unpack. Happily, we're joined by Jeannie Sukkerson. Jeannie is our colleague at the New Yorker,

a constitutional scholar, and a professor of law at Harvard. Jeannie, in recent months, Texas and Mississippi have taken very concrete legislative steps to ban abortion. Private citizens and the federal government have sued as a result, and soon the Supreme Court is going to be reviewing all of these actions. So please, please help us get up to speed on these cases and their chances in the Supreme Court. So in the Mississippi case that will be heard in early December, Mississippi is explicitly asking the Supreme Court to over-trial. turn Roe versus Wade. So Mississippi passed a law that clearly contradicts Roe versus Wade, and that law essentially says that you cannot get an abortion after the 15th week of pregnancy.

That contradicts Roe versus Wade because Roe versus Wade and then the subsequent case that clarified it, Planned Parenthood versus Casey, made clear that until the point of viability, a person does have a right to an abortion, and viability at this point is thought to be 23 to 24 weeks. So 15 weeks versus 24 weeks, that's the gap where it contradicts the Supreme Court's abortion precedents. The Texas law is even more in violation of Roe v. Wade, in that it tries to prohibit abortion after the sixth week of pregnancy. The thing about the Texas law that is different from the Mississippi law, and different from other abortion restrictive statutes, is that normally when you want to challenge a law as unconstitutional, what you do is go into court and say the state has passed this

unconstitutional law and deputized a state official to enforce it. Here, it specifically says that state officials cannot enforce this law, only private citizens. So the only way that an abortion provider can challenge a law like SB 8 is to wait until they are sued by a private citizen under SB 8. That means that they will be chilled from actually performing abortions, and that essentially creates a reality in which abortion rights are very severely restricted, if not eliminated, in the state of Texas. So what made certain players in Mississippi and Texas think that they could somehow bypass, override, or plow through Roe v. Wade in the Supreme Court? Well, ever since the KC decision, states have been trying to do what they can within the bounds of the Supreme Court's abortion jurisprudence,

to try to limit abortions in whatever ways that they think are permissible. Well, in the recent past, we've moved into a new era, where in, People are trying, states are trying to actually pass laws that they know are unconstitutional under the Supreme Court's cases. And they're doing so precisely because of the change in personnel on the Supreme Court because they can count the votes and they can see that there will be a majority of justices who probably disagree with Roe versus Wade and might be willing to overturn it. Right. The Supreme Court in its majority now is anti-abortion, I think it's fair to say. But do you see evidence that the judges may be offended by? this strategy in a legal sense and that they may rule against them? David, as to your question about whether justices are offended, I mean, they certainly ought to be.

And it goes really, the last time we had a significant challenge, and I'm not exaggerating to say this is as significant, to federal judicial power. It was after Brown versus Board of Education, which was also about a constitutional right, of course. And we had states, states in the South, saying we don't want to. obey Brown versus Board of Education, and we have our own interpretation of what the Constitution requires. And the Supreme Court said, no, we are the arbiters of what the Constitution says. We decide what the Constitution says, not you, the states. And the Supreme Court is now faced

with not only the issue of abortion, which it will directly address in the Dobbs case, but in the Texas, the whole woman's health case, they are actually deciding a question that is completely, in some ways, divorceable from abortion altogether. It's about their own authority as a Supreme Court. Who is supreme here? Is the federal government supreme here? Or are the states? Who is supreme here? Well, and as a Texan and as someone who loves my state in many ways, it is a profoundly Texan ideology and strategy. You know, this is a state where like the state flag flies more than the American flag often. And every year, you know, I just remember, talking, I was talking to a bunch of people in Texas around when SB8 was, you know, was allowed

to go into effect. And they were reminding me that every single year at the state legislature, you know, it's dozens of bills, anti-abortion bills that are trying many different strategies, right? It's, it's, it's, it's, it's, it's, it's, it's, anti-abortion spaghetti being thrown against the wall, and this one happened, the strange, strange law happened to stick. Well, many, many, I like the, I like the, I like the expression of, anti-abortion spaghetti being thrown against the wall, but this particular spaghetti, they knew had a good chance of having some more sticking power because of the change in composition of the Supreme Court. And the Supreme Court, I have to say, they have to be disturbed by that or they

ought to be, because do they really want to look like a body that essentially can be manipulated in this way, that essentially the law that you will basically try to get around constitutional rights because so-and-so got appointed instead of another person. And essentially, it comes down to who got elected president before that. So it can, it's very, it would be very mystifying to me to have the Supreme Court actually in the Mississippi case say Roe versus Wade is overruled. There are, of course, many things they can do short of overruling. That can be quite devastating. But I am not expecting to read a ruling months from now where they say, we hereby declare

that Roe v. Wade is no longer good law. You don't? You don't think they'll overturn it? No, I don't think that we're going to see an outright overturning of Roe versus Wade. I think we're going to see something more along the lines of Casey in 1992. And that move is just to say, we're not overturning. but here we're clarifying. And so they're probably going to do something that clarifies the meaning of undue burden,

which is language that was first expressed in Casey, and to try to clarify what undue burden means in a way that makes abortion harder to obtain. But overturning row altogether, it just would be so embarrassing to the court, so bad for its legitimacy. and just think about the year we've had. This is 2021. We're in a year, first of all, where we started the year with a violent attack

on the capital, on our lawmakers. And everyone knows that the situation is such that Roe v. Wade represents not only the right to an abortion, but in some ways it's so much larger than that. Roe v. Wade represents the legitimacy of the court and the court's decisions. So on the right, on the right, Roe versus Wade represents how the court isn't legitimate because it did something, it essentially made up a constitutional right that's not even in the constitution. On the other hand, on the other side, Roe versus Wade represents the legitimacy of the court because despite its unpopularity among some quarters of society, the court has stuck with it and affirmed it again. and again and again under the principle of stare decisis, which is the principle that cases that are decided are supposed to stand. Because if you keep changing the ruling every year, then how is that even law? We're talking with Jeannie Sogerson about the challenges to abortion rights now being

heard by the Supreme Court. Could I ask a question? You said earlier, you spoke about abortion being a sort of invented right in the Constitution. You know, What, in an alternate universe, what is a kind of case law that would establish an affirmative, kind of positive right to abortion? What might that look like? Well, what was interesting about Roe v. Wade is just the way that it is so connected to other kinds of personal rights. right? It didn't just come out of nowhere contrary to what some people may say about it. It was, the Supreme Court built this doctrine one step at a time.

And really it goes back to the notion that there are certain things that are so fundamental to what it means to be a human being that no government can take that from you. Right, it's privacy. Right. And so privacy became a concept that housed the collection of things that human beings consider essential to concepts like dignity and self-determination.

And so the way that the Supreme Court first approached this was in the context of contraception, the use of contraception that married couples would be able to enjoy in the privacy of their own home. And the Supreme Court faced with that, I think, was offended at the idea that the state would get to say whether a man and wife would use contraception or not in their own private sex life in their bedroom. And that was really the imagery and the rhetoric and just kind of like get big brother out of here kind of idea that led the Supreme Court to say due process protects that right of essentially privacy, the privacy of the bedroom, the marital home. That was very essential. And of course, that, you know, once you have that, then you can extend it to the right of everyone to use contraceptives without the state telling you whether to do it or not, whether you're married or not. And then that leads to the contraception, you know, being a reproductive decision. That's then what leads, that provides a bridge to abortion decisions. That you don't want to get pregnant. You should get to choose if you get pregnant or not. And you should get to choose whether you have. a baby or not. And so it's one step at a time. It's not like completely coming out of whole, you know, invented out of whole cloth. And then of course, we know that out of abortion comes

the right to have the state not be able to tell you that you can't have sex with the same sex partner. In 2003, we, out of those cases, we get the ruling that the state can't criminalize same-sex sexual conduct, because that's also part of the privacy, particularly in the home, in the bedroom. And then out of that comes gay marriage, same-sex marriage. So this is like an entire web, build step by step-by-step, one case at a time. And so now people can say, well, maybe abortion rights wouldn't be so threatened right now if we had had an alternative a road that could have been taken instead of this one. Well, some people have said that, in fact, Justice Ruth Bader Ginsburg, once several times,

suggested that due process and privacy were not really the best way to protect a woman's right to an abortion, that in fact it would have been better if basically the equal protection clause would have been used instead. And there it would be because women have the right to equality and the government should not discriminate on the basis of sex, given the central importance of reproductive choices to a woman's life and destiny, it would be important for the state to respect that choice because otherwise it would be discrimination on the basis of sex. Now, that's an argument that could have been pursued. Many people did think that that was a very promising argument, but once you've got the Supreme Court

on board with the privacy doctrine and the contraception, you've got the path dependence, and that's how abortion doctrine went. So what happens if the laws in Texas and Mississippi are upheld? Does the whole House of Cards, the whole legal structure that has been supporting the right to privacy, does it all collapse suddenly? The Supreme Court would have to do some very fancy footwork for that not to be the case. perhaps they could do so simply by maybe like a surgical kind of move that would say, well, we basically approve the right to abortion, but we think the details of the test that were laid out in Casey were wrong.

And so they could do it that way without touching necessarily everything else around it. But it is very unlikely that a Supreme Court that wants to go that far as to uphold these laws would do it in such a limited way, because it just would look really silly. If you're a true believer as a Supreme Court justice, you're thinking that the greatest wrong that the Supreme Court has ever done, possibly, one of the greatest is to say in Roe v. Wade what it did. Because a lot of legal conservatives do consider Roe v. Wade one of the worst things in terms of jurisprudence that has ever happened.

So the whole point of upholding these laws would be to say something really deep and fundamental about the methodology that the court used in Roe v. Wade. These things can be done, but again, can they do them with a straight face while preserving the sense that these are judges, not just policymakers in Roves. Harvard Law Professor Jeannie Sukkerson. You can read all of her writing about the Supreme Court and much more at New Yorker.com.

This is the New Yorker Radio Hour. Our program on the future of abortion rights continues in our next episode. Stefania Taladrede reports on an abortion rights group in Mexico, where abortion was just recently decriminalized. The group is now turning its attention to help in Texas, where abortion has been quite nearly banned. That's next time, so please join us. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker.

Our theme music was composed and performed by Merrill Garbus of Tune Arts, with additional music by Alexis Quadrado. This episode was produced by Alex Barron, Emily Boutin, Ave Carrillo, Calalia, David Krasnau, Gauphin and Putubuella, Louis Mitchell, Michelle Moses, and Stephen Valentino. We had assistance from Priscilla Alabi, Ezekiel Bandy, and Kim Green. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.