The NPR Politics Podcast - The Docket: After A Half Century, Roe V. Wade Faces An Uncertain Future

Episode Date: September 29, 2021

The Supreme Court will hear arguments Dec. 1 in a case from Mississippi that tests whether all state laws that ban pre-viability abortions are unconstitutional. That case poses a serious challenge to Roe v. Wade, the decision that originally permitted abortion nationwide. For this episode we look at what the court was thinking when they decided Roe in 1973, and what the court may do in the upcoming term.This episode: White House correspondent Tamara Keith and legal affairs correspondent Nina Totenberg.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.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

Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. And I'm Nina Totenberg. I cover the Supreme Court. And this is The Docket, our ongoing series where we dig into the big legal questions of the day. And Nina, the Supreme Court is preparing for its next term. In an upcoming episode, we're going to preview the big cases that will be before them. But right now, we are going to set the stage for maybe the biggest, and this involves abortion. This will be the first time an abortion case will be ruled on by the new conservative supermajority on the court. And that has a lot of people wondering about the future of Roe v. Wade, the famous case that legalized abortion in the United States and

became a super precedent. Right, Cam. This case comes from Mississippi, which has enacted a law that bans any abortions after 15 weeks. And that puts it directly in conflict with the Supreme Court's precedent in Roe and subsequent precedents, which say that a woman is entitled to terminate a pregnancy as long as the fetus is not viable, and that is generally 22 to 24 weeks. You know, it has been nearly a half century since the Supreme Court legalized abortion. That means there is an entire generation, more than a generation, who doesn't know what life was like without legal abortion in the United States. So, Nina, can you take us back to those years leading up to Roe v. Wade? Well, you know, interestingly, abortion was not made illegal until the late 1800s. But by the 1960s, abortion, like childbirth, was really a very safe procedure when performed by a doctor,

and women were entering the workforce in large numbers. And to have a child out of wedlock was to make working not only far more difficult, but it was like putting a scarlet letter on your back. It was scandalous. As a result, illegal abortion was becoming a public health problem. The numbers of women who had illegal abortions each year ranged from 200,000 to over a million. I know that's a wide estimate. In 1973, NPR spoke to one of those women who had an illegal abortion. She didn't want her name used. I was very ashamed, but now I see that I was ashamed for many reasons

more than just the things that I had done. In other words, I think I was ashamed because I had nobody to help me. When you have an illegal abortion, all the institutions and all the people which normally support you through a crisis disappear into the mist. And I think this is one of the most damaging things about it, because when you make that decision, you are probably as lonely and alone as you will ever be in your whole life. That is a devastating story and not an uncommon one at the time. That's right, Tam. And to talk about how the Roe case came to be at the Supreme Court, I talked to somebody who was actually there at the

time. Hi, I'm George Frampton. I was a law clerk for Justice Harry Blackmun at the time that the Roe v. Wade case was argued and decided. At the time, if you were a young woman who lived in a college dormitory, you were likely to see one or more women carried out of your dorm hemorrhaging from a botched illegal abortion. Those abortions either had to be obtained undercover if you had a sympathetic doctor, you were wealthy enough, or more likely illegally in back rooms by abortion, often by abortion quacks, crude tools, no hygiene. By the early mid-60s, thousands of women in large cities were coming into hospitals bleeding, risk of their lives often maimed. The best way I can describe it would be the equivalent of having a hot

poker stuck up into your uterus and scraping the walls with that. It was excruciatingly painful. The attendant that was there held me down on the table. I must say he worked on me more as though I were literally a piece of meat, and I don't mean that to be vindictive, but that was the way the relationship was. And as a result, in the mid-60s, a reform movement had started, begun to decriminalize abortion, treat it like a normal medical decision between a woman and her doctor. Mr. Chief Justice, and may it please the court, we are once again before this court to ask relief against the continued enforcement of the Texas abortion statute. So, Nina, I am guessing that because this is the way things work in this country, there was like a patchwork of state laws with different different rules and different approaches that came to the Supreme Court. Correct. The American Law Institute, a highly respected group of lawyers, judges, and scholars, published a model abortion reform law supported by the American Medical Association, and many states began loosening the restrictions on abortion. Four states legalized it, and a dozen or so other adopted some form of the model law,

which permitted abortion in cases of rape or incest, fetal abnormality, and to save the life or health of the mother. Most of the laws followed the ALI recommendations, but by the 1970s, when nearly half the states had adopted reform laws, there was a small backlash. Still, as George Frampton observes, When this came to the court, it wasn't a big political or ideological issue at all. That seems sort of surprising. I mean, given where we are politically right now, wow. In fact, you know, the justices of the Supreme Court back then were mainly conservative establishment figures. Six were Republican appointees, including the courts-only Catholic,

and five were generally conservatives, as defined at the time, including the four appointed by President Nixon. These were people who were establishment conservative justices who saw this as a constitutional aspect of a medical and legal reform movement. As it happened, Roe was argued twice because of the death of two justices. And by January of 1973, the court was ready. Justice Blackmun announced the decision for a seven to two majority. The Supreme Court today ruled that abortion is completely a private matter to be decided by mother and doctor in the first three months of pregnancy. So the framework established in Roe and upheld repeatedly by the court was that for the first two trimesters, the choice was the woman's.

Correct. With some qualifications added in 1992 when the court said that states could enact some restrictions as long as they didn't impose a, quote, undue burden on a woman's right to abortion. Why did the court impose that rigorous framework around trimesters? Well, Frampton says that the court hewed to the traditional view in Anglo-American law that the fetus became a person at quickening when the woman first feels the fetus move. And that usually was defined as between 18 and 22 weeks. And having this framework, the court thought it could resolve the issue. The justices thought that this was going to dispose of the constitutional issues about abortion forever. Of course, in the years that follow, the backlash grew louder and louder to the point that

the Republican Party, which early on had supported Roe, now officially abandoned it in 1984. And when you look at how the Supreme Court nomination and confirmation process has been politicized, you can't help but wonder whether that would still be true without Roe. And I put that question to Frampton. Well, I'm afraid that your analysis is absolutely spot on. I think they saw it as a very important landmark constitutional decision, but had no idea that it would become so politicized and so much a subject of turmoil. And of course it has. We are going to take a quick break, and when we get back,

we will focus on what the court will be considering in the months ahead. And we're back. On December 1st, the Supreme Court will hear a case on abortion out of Mississippi. The case, Dobbs v. Jackson Women's Health Organization, has the potential to pose a serious challenge to Roe v. Wade, not to mention a new law in Texas that, for all

practical purposes, bans abortion, could also reach the Supreme Court this term as well. Nina, to talk about these cases, you've brought a special guest to the podcast. So can you introduce us? Yes, our special guest is Professor Mary Ziegler, an expert on law and reproductive politics and the author of Abortion and the Law in America. Hi, Mary. Hi, thanks for having me. Nice to see you here. Nice to have you or something, whatever. Thanks for joining our Zoom. Mississippi and Texas are just two examples of more conservative states that have passed laws aimed directly at challenging Roe v. Wade. What options are on the table for the court? And this court now has three Trump appointees.

And a six to three conservative majority. You know, Tam, the court took this case on the assurance from Mississippi that the court didn't have to directly confront Roe. But now the state is asking the court to do that. I'm wondering, Mary, what you think the odds are that the court will dodge and weave for another couple of terms before they finally axe Roe, or whether they will actually say, OK, now's the time we should take our chances to uphold the Mississippi law. Right. The court has to revisit the idea of when states can ban abortion because Mississippi's law bans abortion at 15 weeks, which is well before any serious medical person says fetal viability is possible. And Roe and all the cases following it say you have a right to choose until viability. So one option would be that the court gets rid of viability and says it's been criticized, it was never an essential part of Roe, and either puts in some other limit, whether that's 15 weeks, whether that's nine weeks, whether that's six weeks, or just kicks the can down the road and says, you know, we'll figure out what the limit is on a case by case basis.

It's quite likely if the court is going to bob and weave for a little while that we're going to see the court sort of making the case to the public that Roe should go, so that when we do get to the point where the court puts the final nail in the coffin in 2023 or 2024, there's been some kind of, you know, groundwork laid or tensions minimized. The only reason I think that's still on the table is we've seen the justices doing a kind of damage control tour already, right? I mean, Amy Coney Barrett and Clarence Thomas and Stephen Breyer in different ways saying, you know, we're not partisan hacks, right? So there's an awareness that people are watching and there's anxiety about that.

But I think it's quite possible the court could just overrule Roe right now, too. It just depends on the extent to which Roberts' concerns about public outcry are, you know, heard by his colleagues. Chief Justice Roberts, in his confirmation hearing in 2005, said that Roe was a settled precedent. And then all of the Trump nominees, for example, acknowledged that in some way or other. In fact, Justice Kavanaugh said it was a super precedent, very, very firmly said it was a super precedent, Mary. But does that mean anything? I mean, no, right? Because one of the things that you see playing out in the briefs that have already been submitted in the Dobbs case is that there's an entire social movement debate about

what we mean when we say precedent and what we mean when we say settled. And so when Kavanaugh says super precedent, he means, you know, the court has weighed in on it more than once. I'm sure Roberts may actually think Roe is settled because he's not as likely to overturn Roe immediately or potentially ever. But I think there's lots of room for fudging this because often when the anti-abortion movement talks about Roe, they say Roe is not settled law, by which they mean it's politically divisive, by which they mean people should know they can't rely on it because the Supreme Court's flirting with overruling it, by which they mean lower courts don't know how to apply it consistently and the Supreme Court tinkers with it. So there's always room to

maneuver if you want to overrule Roe, even if you said something that sort of sounds like Roe is good precedent. There's always a way to say that what you didn't mean was that it will be kept. And I would expect to see at least some of the court's conservatives make that move. This is a question I've long wanted to ask. In most of the Western world, anyway, abortion is legal, but for a somewhat shorter time, 12 to 18 weeks, depending on the country, and it's not particularly controversial. Why is it not controversial in those countries? Well, I think there are probably two things that are different. One is that some, not all, but many of those countries reached a settlement through democratic means, right? In Ireland, there was actually a referendum that was put to the people. And so

whatever settlement was reached in those countries was more likely to reflect what the median voter thought, which is not something we have in the United States, really anywhere in pro-choice or pro-life states. And secondly, in most of those countries, there's public health insurance available to everyone so that it's realistic to have people be forced to seek abortions in the first whatever 12, 15, 18 weeks, and actually be able to get the procedure done by then, whereas in the United States, there's no such health insurance. And then I think finally, there are a lot of people in the United States who have a stake in our polarized politics, right? It's a way to raise

money. It's a way to get people out to the polls. And so it's striking how little our politics resemble our polling when it comes to what people actually would like. Mary, you raised the potential that Roe could be gone. What does post-Roe America look like? Well, in the short term, what we would expect to see is a sharpening of the differences we already see between states. There are already huge disparities in the law on abortion and access to abortion, depending on where you live, with much less access in swaths of the South and Midwest. We would expect to see states that already limit abortion, banning it and imposing pretty serious prison terms. We would expect to see there being kind of abortion battleground states,

the usual suspects, places like Florida or Pennsylvania, where we wouldn't know ahead of time what the rules were. And we would expect to see the more progressive states probably implementing policies to make it easier for people from out of state to seek abortion there. In the longer term, though, the anti-abortion movement is not going to be satisfied with reversing Roe. We've already seen in the Mississippi case, anti-abortion lawyers asking the court to recognize the personhood of a fetus or unborn child under the 14th Amendment, which would make abortion unconstitutional everywhere and make it illegal in places like New York and California as much as in places like Alabama. So even if the Supreme Court isn't going to be open to that argument

immediately, we should expect to see anti-abortion groups pressing it in the years to come. Mary Ziegler, author of Abortion and Law in America. Thank you so much for joining us on the Politics Podcast. Yeah, my pleasure. Thanks for having me. All right. That is a wrap for today. We will have a full look at the Supreme Court term in an upcoming episode. So keep an eye out for that. I'm Tamara Keith. I cover the White House. I'm Nina Totenberg. I cover the Supreme Court. And thank you for listening to the NPR Politics Podcast.