The NPR Politics Podcast - Supreme Court Overturns Roe v. Wade

Episode Date: June 24, 2022

In a 6-3 vote along partisan lines, the Supreme Court's conservative majority has overturned Roe v. Wade, the 50-year-old case that was the basis for legal abortion across the United States. The result: a split national landscape, with states free to enforce laws prohibiting abortion.This episode: White House correspondent Scott Detrow, national correspondent Sarah McCammon, demographics and culture correspondent Danielle Kurtzleben, and national justice correspondent Carrie Johnson.Support the show and unlock sponsor-free listening with a subscription to The NPR Politics Podcast Plus. Learn more at plus.npr.org/politics Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

It's the Unpaired Politics Podcast. It is Friday, June 24th at 145 Eastern. I'm Scott Detrow. I cover the White House. I'm Danielle Kurtzleben. I cover demographics and culture. I'm Sarah McCammon. I cover abortion rights. I'm Carrie Johnson, national justice correspondent. And you are all here because Roe v. Wade, the landmark decision that established the constitutional right to an abortion nearly 50 years ago, is no longer the law of the land. The U.S. Supreme Court, in a decision written by Justice Samuel Alito, has overruled that decision today and millions of people's lives are already being affected. Carrie, let's start with the majority decision. What does it say? Yeah, there's a couple of lines under the holding written by Justice Alito. It's really stark and really clear. He says the Constitution does not

confer a right to abortion. Roe and its sister case, Casey, from 1992 are overruled, and the authority to regulate abortion is returned to the people and their elected representatives. That's it. Okay, so let's talk about how state laws are already changing. And Danielle, I want to start with you. Many states had what are so-called trigger laws. If Roe v. Wade was ever overturned, these laws would go into effect. And today we are just seeing a cascade of states enacting these laws. Tell us about them. Right, yeah. So there are 13 states that had trigger laws on the books, trigger laws that said if Roe is overturned totally or in part, these laws would go into effect and ban abortion, except in very, very particular cases. For example, a pregnant person's life being in danger.

Three states have immediate trigger laws, Kentucky, Louisiana, and South Dakota. And then you have different kinds of trigger laws in other states. You have some states where the trigger law goes into effect after 30 days. And you have other states where there's some sort of a step required, where a governor or an attorney general, for example, has to certify something. Now, that has already happened in Missouri, for example. In Missouri, the state AG said, yes, this law can now go into effect. But beyond that, there's also a bunch of states that had pre-Roe laws. Now, those laws could not be enforced while Roe was the law of the land.

But now in states like Wisconsin and many others, those laws are now very much enforced. So there is a whole mess of new abortion restrictions that are just going to kick into effect or could kick into effect. So, Sarah, you know, this really creating at the same time you have Democratic states in recent weeks have have talked about kind of further enshrining abortion rights and increasing resources to even people in other states who need to now cross state lines for abortions. I mean, this creates a country of abortion states and non-abortion states, but that trend had been moving in that direction for a while now, hadn't it? Very true. I mean, already in large swaths of the country, it was very difficult to get an abortion. For example, South Dakota for years had been down to just one clinic and had to fly doctors in to provide abortions. Missouri also down to just one clinic, which has been barely

performing a handful of abortions for the last couple of years because the state laws there were so cumbersome. I mean, patients had to come in and get a pelvic exam and wait three days because of a state waiting period to get an abortion. And most clinic officials there told me most would decide just to cross over the state line to Illinois, which is one of the states that's really becoming and will continue to be kind of a hub for abortion services. You know, that state has a Democratic governor. The legislature has taken some steps to expand access in the past couple of years and remove hurdles to getting an abortion. Planned Parenthood has a new large clinic in the western part of the state. And so

we're seeing states like that. And of course, some of the ones you would imagine, right, like California, New York, Oregon, taking steps to increase capacity in various ways, sometimes through funding, sometimes through expanding the types of categories of providers who can offer abortion. But yes, it's very much a patchwork, has been for a while, and that trend is just going to escalate. And there's going to be so much more to report on that going forward. And Sarah, I know you're going to be doing that for NPR. I want to keep talking about the immediate responses today. Let's cross state lines for abortions and get FDA approved pills that can end pregnancies in the mail, which is, of course, a federal operation. But Biden's big message was this is something that needs to be dealt with in the ballot box. Voters need to make their voices heard.

This fall, we must elect more senators and representatives who will codify a woman's right to choose into federal law once again. Elect more state leaders to protect this right at the local level. We need to restore the protections of Roe as law of the land. We need to elect officials who will do that. This fall, Roe is on the ballot. Personal freedoms are on the ballot. The right to privacy, liberty, equality, they're all on the ballot. So Danielle, the central thrust of Biden's message is Roe is on the ballot this fall. But this fall, there are so many indications that Democrats will

lose seats, not gain seats in big ways that are really hard to change the political dynamic of including rampant inflation. Right? Yeah. I mean, my first response when I hear Biden say liberty, equality, they're on the ballot, abortion is on the ballot. I think of an activist I talked to right outside the Supreme Court on the day that the Dobbs decision leaked. And I asked her that day a question that felt a little putting the cart before the horse at the time. But I asked her, if this is the eventual decision, what do you think about midterms? What do you think about Biden saying this is on the ballot? And she said, we have been voting as if it's on the ballot. We did vote for Biden. We did vote for Democrats for up and down the ballot. And

look at where it got us. I mean, there is a very heavy sense of frustration among the people on the pro-abortion right side, this is, who really care about this. So there is a certain amount of fatigue for people who have been fighting over this for quite a while. Now, it is still true, though, that of course, this is going to be a huge, huge issue in November. It is just going to have to fight with things like guns, like inflation in particular. And there are two ways to look at this. One is that this will motivate quite a few people to get out the door and vote, particularly on the pro-abortion right side. But then again, this really excites a lot of people on the anti-abortion right side. And furthermore, you do hear from a lot of people on the right,

on the Republican side, that, hey, inflation is still really bad. We think that is going to take precedence. Kerry, what's the role the Department of Justice will play in the federal response to this going forward? You know, as long as Democrats control the Department of Justice, at least. Right. So we heard today in a written statement from Attorney General Merrick Garland, who, by the way, was once a candidate to sit on the Supreme Court, but he never got a hearing. He said that the DOJ strongly disagrees with this decision. He said the court has basically upset stare decisis, which is a key

pillar of the rule of law thrown out a lot of precedent here, and that this decision is going to have a terrible impact on the lives of people around the country, especially shouldered by people of color and people who have limited financial means. What the DOJ can do is protect entrances to clinics where abortions are performed, along with other reproductive health services and other health services under a law called the FACE Act, and Garland pledged to do that today. He also said that it's a bedrock constitutional principle that women who reside in states that have banned access to reproductive care can and must remain free to seek that care in states where

it's legal. It's not clear what shape that's going to take, whether the Justice Department is going to file a lawsuit or weigh in to defend other people in a different kind of lawsuit. But the Attorney General has been pretty firm on that, as has the President. All right, we are going to take a very quick break. When we're back, we will continue this conversation. We are back. And Sarah, you have been covering this issue for years. You have spent so much time talking to groups that see this as a fundamental health care right and that women's health is now endangered. You have talked to so many people who truly see abortion as murder and see today as a day that saves the lives of millions of people. You have covered a conservative movement that has spent

decades trying to get to this point. How are the various people who have focused on this for decades reacting today? Well, I think for those who've been working toward this moment to overturn Roe for decades, it is a huge moment. I can't emphasize enough what a big day this is. I checked in with one anti-abortion rights activist in Mississippi who helped push for the law that was central to the Dobbs case. And she said, you know, she was in tears. She said she hoped that this day would come in her lifetime. And so it's a moment of celebration for her and for others. We saw former Vice President Mike Pence release a statement today saying that Roe v. Wade has been, quote, consigned to the ash heap of history, which, of course, was something that he was

saying he would do while he and Trump were running for president in 2016. And, you know, we covered that campaign. And I'm sure you remember, too, Scott, just how many Trump supporters ultimately said this came down to the Supreme Court for them. This is something that the right has been aware of for a really long time, the importance of the court to this issue in particular. And just to quickly echo what Danielle said earlier about the frustration on the abortion rights side, I'm hearing tremendous frustration, and I have been for weeks. I was in Illinois recently and talking to an abortion provider there, a doctor who said she feels like many, even of her colleagues in the

obstetric and gynecology world, didn't fully understand how serious the threat to Roe v. Wade was. And I hear that from activists as well, that we have been talking about this, we have been warning about this, and yet this day has come. All right, let's shift to another pretty serious thread here. And that's what this means for other kinds of rights that the Supreme Court has in the past established. Carrie, there were a lot of questions about whether this ruling would pave the way for the court going after other issues based on those same sort of privacy rights based on that same thinking. And Justice Clarence Thomas directly addressed that today. Yeah, Clarence Thomas has been vocal in the past and vocal again today in a concurring opinion,

basically saying that in his view, some of the reasoning in this decision should call into questioning some of the reasoning that props up other major decisions. Some of those cases include things that reach very deeply into the intimate personal lives of people every day. Things like same-sex marriage, the right of married couples to use contraception legally, and other intimate personal rights. And so even though some of the majority seem to bat back fears from liberals and others about the reach of this legal reasoning and the reach of overturning Roe, Clarence Thomas has given us a strong signal that he thinks that may be where the court is going next. And the liberal dissenters, all three liberal justices, seem to flag that too.

To follow on to that, I was talking to a legal expert right after the Dobbs opinion leaked about just this topic, and she said, you know, Alito, in his opinion, says, you know, there is something different between abortion and these other rights, like the right to a same-sex marriage, the right to contraception, in that abortion destroys a life. However, the legal explanation that I got from people was there's nothing really legally to prevent this same rationale that abortion is an unenumerated right. And these other things are, too. There's nothing to prevent that from coming in the future. I think that leads to I mean, there are many big questions today. But but one of them is is what the implications are for this court. I mean, Carrie,

Chief Justice Roberts has spent so many years trying to keep this court out of politics, trying to keep this as the last national institution that people still have some trust in. We have seen that erode so much already. I can't imagine this would do anything but further that erosion. A pretty drastic erosion, Scott. We had a new Gallup poll come out suggesting that high confidence in the court is down to 25%, which is an historic low. It's down, I think, 11 points year over year. And I think that poll was taken even before this week, even before the court's decisions on the Second Amendment, conferring a right to carry a gun outside the home, and now overturning Roe v. Wade and Planned Parenthood v. Casey,

cases that people have relied on for 50 years, actually taking away a constitutional right for the first time in recent memory. This is a very tricky position for the court to be in with public opinion. I was just outdoors on the street in Washington, and I saw two young women carrying banners, I think, walking on their way to the Supreme Court. There are people outside that court right now demonstrating. And Biden did specifically talk about peaceful protesting. There's no place for violence and threats. Sarah, what comes next? What will you be looking for? We have conservative states passing new laws. We have organizing

happening on the streets. We have a lot of broad political questions of how this fits into the mix of other big issues out there. I mean, what will you be looking for in the coming months? I think you're going to want to watch what the state legislatures do. There have been calls for some legislatures to convene right away and pass new legislation in response to this decision. I don't know if that will happen, but certainly next year when most states reconvene their legislatures. There's been a flurry of activity in the last couple of years, and I expect more, probably refining of some of those laws, debate over those laws. Another thing to watch is medication abortion. I mean, the abortion pill has really changed the way that I think a lot

of activists think about self-induced or self-managed abortion. Before Roe v. Wade, there were not really safe options for people who wanted to induce their own abortions. Today, that's different. There are all kinds of legal questions, and certainly opponents of abortion rights are looking for ways and trying to legislate ways of restricting abortion pills in various ways. But that is kind of a new front in this battle. It is the most popular choice for people seeking to terminate pregnancies. It's much easier to do at home than it ever was. And so I think that's where a lot of focus is going to be in the future. I would just tack on to what Sarah said in terms of what we're looking for.

One next vote to just watch is in Kansas, where there is a state constitutional amendment on the ballot on August 2nd. And that amendment would say that you are not guaranteed a right to an abortion in the state constitution. So if that passes, that would mean that any laws that do pass after that, that say abortion is restricted in the state, they would be much harder to challenge. But besides that, the swing states are always important to watch. But a big thing now is in those swing states, for example, Wisconsin, where there are big Senate elections. Those are states to watch to see how big of a motivating factor abortion is and how much both sides use it, because that will tell

you a lot about how much both sides perceive that their voters care and have an appetite for more or fewer restrictions. The other thing I would watch quickly is efforts toward federal legislation. Both sides of this debate would like to see their position enshrined in federal law, and both have proposals out there that they support. And it's hard to get anything through Congress right now. But of course, that could change if the voters wanted to. Yeah, which is the bet that Joe Biden is making or trying to make today. We have, look, we have covered so many seismic moments in this podcast, and this is another one of them. Thanks to all three of you for the reporting you have done on this topic in particular.

You will keep covering it going forward. We will keep talking about it in this podcast. I'm Scott Detrow. I cover the White House. I'm Danielle Kurtzleben. I cover demographics and culture. I'm Sarah McKenman. I cover reproductive rights.

I'm Carrie Johnson. I cover the Justice Department. Thank you for listening to the NPR Politics Podcast.