The NPR Politics Podcast - Why Two Experts Think The Supreme Court Is Prepared To Roll Back Roe V. Wade

Episode Date: December 2, 2021

The Supreme Court heard arguments for a case that challenges the foundation of Roe v. Wade, the decision that originally made abortion legal. In their questioning, the conservative justices seemed primed to overturn the fifty year old precedent. That decision would radically change abortion access in the United States.This episode: political correspondent Juana Summers, legal affairs correspondent Nina Totenberg, and Mary Ziegler, author of Abortion And The Law In America.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 guys, keep it down. I'm doing a podcast. Hi, this is Grace and I've just submitted my last college assignment. This podcast was recorded at Oh my gosh, congratulations Grace and to everyone who is wrapping up a semester. It's currently 2.08pm on Thursday, December 2nd. Things may have changed by the time you hear it, but I'll finally have my bachelor's degree in public policy. Okay, here's the show. Hey there, it's the NPR Politics Podcast. I'm Juana Summers. I cover politics. And I'm Nina Totenberg. I cover the Supreme Court. The Supreme Court heard arguments

yesterday in the biggest abortion rights case in 30 years, and a majority of justices sounded open to rolling back or reversing Roe versus Wade, the landmark decision that established the constitutional right to abortion. The decision in this case will have big implications for people who can get pregnant. And today we have a special guest to help us unpack all of this. Mary Ziegler is a law professor at Florida State University, and she's written multiple books on abortion, including Abortion and the Law in America. Hey, Mary, welcome back to the podcast. Thanks for having me back. So let's just start with the case at hand. The Mississippi law at issue here bans abortions

after 15 weeks of pregnancy. Nina, what legal questions are in play here? Well, for a half century, the Supreme Court has upheld a woman's right to an abortion up to the end of the second trimester. That's roughly 24 weeks. And that's the point at which the fetus becomes viable in the sense that it can survive on its own outside the womb. Well, Mississippi banned abortions after 15 weeks. That's about two months earlier than viability. So the question before the court is, are you going to uphold the Mississippi law? Are you going to draw the line at 15 weeks? If you do that, you're eviscerating Roe and the subsequent decision called Planned Parenthood versus Casey. Or are you potentially even going to just reverse Roe

outright? So the Supreme Court now has a six justice conservative supermajority, three of those justices appointed by former President Trump. Mary, can you talk a little bit about what we heard from those conservative justices during oral arguments? Yeah, I think we heard Chief Justice John Roberts clearly reaching for some kind of solution that would get rid of viability, as Nina explained, but not necessarily get rid of the idea of a right to abortion. So Roberts, for example, at several points pressed attorneys Julie Rickleman and Elizabeth Prelogger about whether viability had anything to do with choice, as he put it, or

whether other lines would be equally appropriate, like, for example, the line Mississippi drew at 15 weeks, which suggested that the chief justice may be looking for a way to not go all the way to repudiating Roe v. Wade clearly and directly, in this case, while still upholding Mississippi's law and eliminating viability as a threshold. What you heard from many of the other conservative justices had much more to do with the ultimate fate of Roe. There were not that many questions about viability per se. There were some. Amy Coney Barrett, who I think to me is probably the justice to watch the most, at one point seemed interested in the line of inquiry about viability. But Barrett and Brett Kavanaugh, who were probably the ones to watch going into this here, the oral argument yesterday, both asked questions that went to the heart of whether Roe v.

Wade was the kind of precedent the court should respect. Why should this court be the arbiter rather than Congress, the state legislatures, state Supreme Courts, the people being able to resolve this. In the less surprising category, Justices Clarence Thomas, Neil Gorsuch and Samuel Alito also asked questions suggesting that Roe might have been wrongly decided. And so it seemed that there was a quite serious possibility that the justices are going to reverse Roe entirely and openly in this case, rather than waiting for another case or two down the line. I think the question here is whether there is some sort of critical mass for any particular point of view, whether there are six justices, in fact, to reverse Roe. The chief justice was clearly looking for sort of a compromise ruling. But if he gets no takers, maybe he just joins them. And maybe he even

writes the opinion to somehow limit it to make sure it doesn't bleed over into other areas of the law. Or maybe he can persuade somebody like Amy Coney Barrett to join him on a two-step dance instead of a these issues so closely. And Nina, you have followed the court so closely for so long. Did it surprise either of you how willing a number of the justices seem to be to overturn Roe altogether? It surprised me. I thought there might be a little of hedging about it. I thought the argument was unusually somber and respectful in some ways. There were no dramatics to speak of. But I had expected it to be for some of the conservatives to pull their punches more. Yeah, I mean, same here. I mean, I wrote in the New York Times that I was, you know, thought it was going somewhere else. And I was wrong. So I was surprised. I mean, I,

I wasn't surprised that that was the direction, right? I mean, I was pretty confident we were going to get an overruling of Roe, but I was not expecting it this summer, and now I am. And so I was surprised too. And I think that I was also surprised by how respectful but unapologetic many of the conservative justices seem to be. This was not, I think, a court that was necessarily plugged into how this was being heard or read. I'm not that confident that an opinion written in the kind of way the argument was conducted would do a particularly good job of managing political fallout. I didn't get a sense

of that. So all of that was surprising. And of course, you know, you can ask whether the justices should care about political fallout. And of course, in some ways, they are supposed to be removed from politics. But in real world terms, they will be affected by political fallout. And it didn't seem that they were tuned in to what will happen if this kind of ruling does come down. All right, so we've talked about the court's conservative members. What about the three liberals? What did they have to say on Wednesday? Well, I thought the most quotable line was from Justice Sonia Sotomayor, who reflected what her two colleagues, Justices Breyer and Kagan, said about the fact that the court was very clearly considering overturning nearly a half century of precedent. And she talked about the number of justices, 15, who have upheld Roe and Casey.

She talked about the number who had opposed that point of view for, including two current members. And she talked about what she called the stench of making it seem that if you just change who's on the court, you can change the outcome. The people on the court are carrying out a political agenda. In ways, I mean, at times it sounded as if Sotomayor was sort of warming up arguments for her dissent. This didn't feel as if any of the liberal justices thought there was a seems quite likely to do, that that might have do significant institutional damage, at least as those two justices see it. All right, we are going to take a quick break. And when we get back, what the implications talk more about the implications of this case. If the court were to overrule Roe entirely, that seems like something that could transform what abortion access looks like in this country and impact the lives of, frankly, a lot of people. Mary, do we have any sense of what would happen under those circumstances, what it would mean? Yeah, so we have a sense of the number of states that would ban all or most abortions immediately. So the Guttmacher Center has a page called Abortion in the Absence of Roe, and their estimates vary, but it's somewhere between 20 and 25 states that would criminalize all or most

abortions immediately. It's worth emphasizing that that's not the ceiling, that's probably more the floor, because there are lots of purple states that would probably, with Republican legislatures and governors, that would consider criminalizing abortion too, that don't have a kind of ready-made law that would go into effect automatically if Roe were gone, right? So this would be a scenario where legislatures would actually have to like propose and pass a law and a governor would have to sign it into law. But it's not hard to imagine that happening in Republican controlled states, or states that are going to be, you know, up for grabs in upcoming elections. So it's not just going to be deep red states that may ban abortion, it may go further than that. So I'm very interested, Juana, in what you think, because

the Democrats clearly think if the court were to strike down Roe, that it would help them in a very fraught year, that it would give them an issue to motivate their base. And I don't doubt that's true. But, you know, sometimes there are unintended consequences. And I'm sort of curious, since you cover politics more than I do what you think. Yeah, Nina, I think that's a great point. I politics more than I do, what you think? sense drifted a little bit further away from the party. They can say something like, hey, you know, the threat to abortion rights is not hypothetical. It's here, it's happening right now. And that's why you should vote for us, us meaning Democrats, making sure that we retain control of Congress in order to protect abortion access and seat judges who are not hostile to abortion rights. But the question I have, and Mary, I would actually be curious to hear what you think on this, is I would imagine that this could also be a hugely energizing issue for the Republican base. Republicans have been working

for decades and on decades to limit if not altogether outlaw abortion. And should the court actually move to overturn Roe, that would be a big victory for them. I think in terms of whether anti-abortion folks will be fired up, I think they absolutely will, because this has never for them been about getting rid of Roe. That's just a step on the path. The movement before Roe ever came down was about recognizing the personhood of a fetus or unborn child and making abortion unconstitutional everywhere. And so getting rid of Roe is really just the first step in what the movement wants to achieve. And it's going to think that if the Supreme Court will be something that will continue to give them what they want, right? I don't think it'll be the

end of conservative efforts to get transformative results through the Supreme Court. So I think if you were really crudely summarizing the social movement politics of this, you might say that there are fewer anti-abortion voters, but that they tend to prioritize abortion more a lot of the time. So that when it comes down to it, there may be more pro-choice voters, but when they're picking a candidate, they may be worried about COVID or they may be worried about the economy or they may be worried about the future of the democracy or any number of other things. So abortion doesn't top the list. So just to be clear, we're just finishing up oral arguments, a decision on this case is expected at some point over the summer. Nina, before we wrap things up, you know, you have been watching the courts for years. And you were talking a little bit about what this case has taught us about what we may see from this court in the future. Tell our talking a little bit about what this case has taught us about what we may see from this court in the future. Tell our listeners a little bit about that. We're going to see this

term, a Supreme Court that is wildly more conservative than in the past. We're going to see it, I think, on guns, we're going to see it on religion, We're going to see it on a whole host of issues. And that, I think, will, to some limited extent, come home to voters, although abortion is the issue that people care most and personally about. The number I keep seeing, and not just from abortion rights activists, is that one in four women in the United States has had an abortion. If that is true, that is a very large number of in the United States has had an abortion. If that is true, that is a very large number of women who care about this. All right, we're going to leave it there for today. Mary Ziegler,

thank you so much for joining us and bringing in that analysis. Yeah, anytime. It's always a lot of fun. All right. I'm Juana Summers. I cover politics. I'm Nina Kottenberg. I cover the Supreme Court. And thank you for listening to the NPR Politics Podcast.