Today, Explained - Justice Alito’s opinion

Episode Date: May 3, 2022

A largely unprecedented leak of a draft Supreme Court decision reveals the Court’s conservative majority intends to overturn Roe v. Wade. New York magazine’s Irin Carmon explains what that means for reproductive rights. This episode was produced by Miles Bryan and Hady Mawajdeh, fact-checked by Laura Bullard and Victoria Dominguez, engineered by Paul Mounsey, and edited by Matt Collette and Sean Rameswaram, who also hosted. Transcript at vox.com/todayexplained.   Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Last night, around 9 p.m., outside the Supreme Court of the United States sounded kind of like this. But by 11 p.m., it sounded more like this. But the curious thing is, the Supreme Court hadn't issued a controversial opinion. Instead, a historic one had leaked. Explained, we're going to explore Justice Samuel Alito's draft opinion that would overturn Roe v. Wade and find out what this might mean for reproductive rights in the United States. Groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started.

It's Today Explained. I'm Sean Ramos for your Erin Carmon, senior correspondent at New York Magazine. Irin, a lot of people are upset about this draft opinion from the Supreme Court. A lot of people are probably thrilled about it, too. Few have read it. Have you read this draft Alito opinion? I have had the pleasure of reading all 68 pages of the draft Alito opinion. And give us the headline. For anyone who's been paying attention to the conservative movement,

the conservative legal movements, critiques of Roe v. Wade, there's going to be a lot that's familiar here. It's pretty much every mainstream conservative, by which I mean it's a pretty extreme, catalog of critiques of Roe v. Wade. Before we get into the arguments in this draft opinion, can we just dial it back and talk about where this case even came from? What is the case Alito wrote this draft opinion for?

For decades, conservatives in state legislatures have been passing laws that are kind of teeing up challenges to Roe v. Wade, testing how far the court is ready to go. So this particular law came out of Mississippi. It banned abortion at 15 weeks, which is later than some of the laws that the court has considered in this very term, but was set up, I think, to try to chip away at the viability standard, which is what Roe and its successor, Planned Parenthood v. Casey, have said, that you cannot ban abortion before fetal viability, which is this sort of somewhat arbitrary line in which a fetus could hypothetically survive. And so all the attempts to get rid of the fetal viability line have been unsuccessful. The court has not even agreed to hear them until this term, probably because Trump was able to appoint three Supreme Court justices.

And when Justice Ginsburg died and was replaced by Amy Coney Barrett, Mississippi actually rewrote its question that it asked the court to hear. It had previously asked the court to consider just whether a 15-week line is reasonable. And in the sort of later stage, it filed a brief saying, are Roe v. Wade and Planned Parenthood versus Casey, these precedents that have kept states from banning abortion, are they constitutional? Should they be overruled? So this went from being a case that would chip away further at Roe v. Wade to a case that had the potential to overturn it. That's exactly right. And in oral argument in December, Justice Breyer actually called out Mississippi for doing this. And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure.

Only, quote, the most convincing justification can show that a later decision overruling, if that's what we did, was anything but a surrender to political pressures or new members. But once they realized that they had a stronger conservative presence on the court, again, not just Anthony Kennedy, who had repeatedly declined to overturn Roe, being replaced by Brett Kavanaugh, but then Justice Ginsburg being replaced by Amy Coney Barrett, it strengthened the sense that they could at least get to five and maybe even six. Did people watching the court expect this possibility that this could be the case that finally overturns Roe v. Wade after almost 50 years? There was nothing extraordinary about this Mississippi law. What was extraordinary is that the court agreed to take it. So once the court said, we're going to reconsider something that we've repeatedly said you cannot do,

the mere decision to take that, although it only takes four justices to take up a case, usually they won't take up a case they think they're going to lose because they don't want to strengthen the existing precedent that says abortion is legal. Once the court says this is up for grabs, anybody who's paying attention can say something substantial is about to change here. And indeed, when the oral argument was heard in December, you could go back and read the summaries of it now and just see exactly what we read in the draft opinion, which is that five justices were openly hostile, not just to this idea of whether abortion should be legal at 15 weeks or not, but to the very underpinnings that for 49 years have governed American law. You think about some of the most important cases, the most consequential cases in this court's history. There's a string of them where the cases overruled Preston, Brown v. Board, outlawed separate but equal.

And then you have John Roberts trying to theoretically find a middle line, but that would also involve throwing out Roe without saying the words, we're overturning Roe. I'd like to focus on the 15-week ban because that's not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People's Republic of China and North Korea. Let's get a little more specific about what exactly Justice Alito writes in this draft opinion. Sure. So in his draft, Alito says that abortion is not explicitly mentioned in the Constitution.

He says, and this is a quote, a right to abortion is not deeply rooted in the nation's history and traditions. So that's a sort of fallback that if, if the word abortion is not in the constitution, uh, there's a sort of originalist argument saying it's not deep that whether it's deeply rooted in the nation's history and tradition. He also says that due process claims under the 14th Amendment are not legitimate. Now, these are the same arguments, the due process arguments, it's called substantive due process, have been used to underpin decisions involving striking down sodomy laws, the right for couples and single people to use contraception, the right to marry. But he says, don't worry, those opinions are totally safe because abortion

is fundamentally different. He says it destroys what those decisions called fetal life, what the law before us now describes as an unborn human being. So he says it's different because of the separate status of the fetus, which we are now kind of swinging the pendulum towards valuing the status of the fetus over that of the pregnant person, although he would never use that phrase. Why is he telling people not to worry about, you know, gay marriage or anti-sodomy laws? Because they are right to worry about them. I mean, of course, just because he says don't worry doesn't really mean anything because these are all cases that come from the same

legal reasoning, the same precedents building on each other. Right to privacy, right to liberty, to some extent equality. These are ones also that the conservative movement, I mean, Alito dissented, for example, so did John Roberts in Obergefell, the decision that made same-sex marriage legal throughout

the land. So people would be right to worry about them. Alito also wrote the opinion in Hobby Lobby, which tacitly accepted that the contraceptive forms used by millions of people are, quote unquote, abortifacient, despite any evidence showing that. The other thing that Alito does in this draft opinion is he responds to claims that you should not overturn Roe because of stare decisis, because of the principle that the court should move very, very slowly and try not to upend existing precedent because people rely on it and the law relies on it. And it's just too, you know,

there's all sorts of reasons why the court has developed that you should not overturn major precedents. But he says the precedent does not compel unending adherence to Roe's abuse of judicial authority. So basically he says that from the beginning, the court should not have made this decision that should return to the people's elected representatives. So he would like to basically put up people's individual reproductive decision making to a vote of the majority. He's saying this should be something that is legislated by Congress, not decided by the Supreme Court. By Congress or by individual states. He also says Roe v. Wade only further deepened divisions in this country.

It didn't solve anything. Yes. And to do so, he also relies on some of the critiques from the early 1980s that were developed by Ruth Bader Ginsburg as a law professor first and then as a judge on the D.C. Circuit. And to my mind, as the author of a Ginsburg biography, it's kind of a troll. It's saying, look, even Ruth Bader Ginsburg didn't like Roe, but she didn't like Roe because she thought that it needed to have equality reasoning. She thought that the government needed to fund abortions. She thought it didn't go far enough, and she didn't like the way it was written. And so, you know, it's a bad faith argument. But, you know, another way in which the Supreme Court has justified its decisions is to say this is a contentious issue, but we need to hand down some kind of stable settlement for the country. And he says it never did that because many people still oppose abortion.

How many justices did Alito get to sign on to this draft opinion? We don't exactly know the answer to that. So Politico reported that it's unclear what Chief Justice John Roberts is doing or saying. There's some conflicting reports out there about this. He has the ability to either assign the opinion to himself, if he's in the majority, or to somebody else. But if he's in the minority, the next most senior member of the conservatives, in this case, it would have been the conservatives, and in almost every consequential case, Clarence Thomas, actually, Justice Thomas would have been the one

to assign it. Now, Justice Thomas has written many times about thinking that not only is Roe unconstitutional, but the entire framework of substantive due process needs to be thrown out. It doesn't exist in the 14th Amendment, is his opinion. So he may have not been able to keep a majority together with his own opinions. But it appears that what happened is that there's a majority, which again, on a court of nine, you need five justices. And that at some point, Alito was assigned to write a majority opinion. Now, in the circulating of drafts, which is apparently what we are seeing, it has been known for justices to change their minds. So sometimes when an actual opinion is written and then a dissent is written, and this is really rare, but justices have talked about how in the writing, in the

arguments, there's a sort of intellectual or legal or political, I would say, haggling where they say, well, I would sign on to your opinion if X, Y, and Z. Or maybe, and this is, again, incredibly rare, somebody reads a dissent and says, actually, I'm so persuaded by the dissent that I'm going to change my vote. Now, about a week before this leaked, the Wall Street Journal editorial board, which is very plugged in and has written before accurately about what Chief Justice John Roberts is thinking and trying to kind of keep him into the conservative fold. They said, they claimed that Justice Roberts was trying to write a sort of separate opinion that would peel off one of the conservatives.

So if they indeed have five for Alito's opinion, they would just, one person could fold or one person could join a slightly less extreme opinion in John Roberts' direction. And even if they all agreed that the Mississippi law could be upheld, maybe the ultimate opinion would be less sweeping. Got it. So what we know at this point is that someone at the Supreme Court leaked this draft opinion authored by Justice Alito to Politico. But this is by no means the final word from the Supreme Court. We do not know if this is the final word. More with the Rin Carmon from New York Magazine in a minute on Today Explained from Vox. Support for Today Explained comes from Ramp. Thank you. pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions

and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash explained, ramp.com slash explained, r-a-m-p.com slash explained. Cards issued by Sutton Bank, member FDIC, terms and conditions apply. Bet MGM authorized gaming partner of the NBA has your back all season long from tip off to the final buzzer. You're always taken care of with a sports book born in Vegas. That's a feeling you can only get with bed MGM. And no matter your team, your favorite player or your style, there's something every NBA fan will love with BetMGM. And no matter your team, your favorite player, or your style,

there's something every NBA fan will love about BetMGM. Download the app today and discover why BetMGM is your basketball home for the season. Raise your game to the next level this year with BetMGM, a sportsbook worth a slam dunk, and authorized gaming partner of the NBA. BetMGM.com for terms and conditions must be 19 years of age or older to wager ontario only please play responsibly if you have any questions or

concerns about your gambling or someone close to you please contact connex ontario at 1-866-531-2600 to speak to an advisor free of charge betmgGM operates pursuant to an operating agreement with iGaming Ontario. We're back today explained with Erin Carmon, senior correspondent at New York Magazine. Erin, if this opinion drops in a few weeks

in the same shape the draft was in, what would happen next? So about half of U.S. states already have laws on the books, either old laws or they've passed so-called trigger laws that are waiting for this exact moment that would make abortion either entirely legal or mostly illegal. What states are we talking about?

So Texas, for example, the Supreme Court allowed it to ban abortion at six weeks, which was certainly a preview of where we are in this draft opinion. You've seen actually Texans moving heaven and earth and a substantial number of people being able to get abortions before six weeks, which is a testament to just the efforts that the clinics are doing to get them in. And many people going to other states like Oklahoma, Louisiana, Alabama, New Mexico, Colorado. So take Texas. They have a trigger ban on the books that says that if Roe v. Wade is overturned, all abortions are illegal. So no longer would every individual who's been able to go before six weeks be able to go. And of all the states that I just named that have been, again, with great difficulty,

able to accept Texas abortion patients, Oklahoma just passed a law, I believe it's about to be signed by the governor, banning abortion at six weeks, but they could also just ban abortion wholesale. Louisiana, definitely another trigger state. Alabama. So in that entire region of the country, that basically leaves New Mexico and most likely Colorado, where abortion would still be legal. As a Texan, if you could get an abortion fund to help you get on a plane, that might end up being your best bet. Anyone who's been paying attention to the news for the past year is aware that there have already been these extremely severe conservative restrictions placed on abortion throughout the South.

How different is this, you know, trigger ban reality from the one that we're in right now? Well, I think for folks living in those states, it's already been incredibly difficult to access abortion. They are barred from using their Medicaid coverage. They are forced to jump through hoops like 72-hour waiting periods, multiple visits. They are forced to listen to inaccurate information. Clinics have been closed down based on spurious regulations. But I think that if this opinion holds, we are about to see that it could always get worse. You know, I mentioned in Texas, six-week abortion ban has been in place. Well, a 100% abortion ban is going to impact those patients a lot more. Even though some people don't know that they're pregnant before six weeks, many people have still been able to get the abortion that they need before six weeks, a surprising number, I think. And so you're also going to see clinic capacity in states where

abortion is going to remain legal be stretched. And so, you know, New Mexico is a place where a lot of people go, but it's mostly one clinic. You're going to see an expansion of telemedicine, but many of these hostile states have already made telemedicine abortion illegal. So you're also going to see something that researchers have found is happening in places like Texas already, which is that nonprofit organizations, including ones based overseas that are willing to push the boundaries of the law, are doing telemedicine sessions with abortion patients and mailing them pills. Now, this is medically very safe as long as you have access to accurate information and the right medication. But legally, we've already seen folks being prosecuted for taking matters into their own hands. Again, it's safer than ever to, quote, self-manage your abortion. The days of coat hangers do not need to be with us.

But prosecutors who have already found out about this with abortion being legal have gone after people for ending their pregnancies with pills. So I think we're about to end up in a territory where the choice will be get on a plane if that's available to you, which we know is going to be really difficult for the most marginalized people.

Drive many, many, many hours if you can even get an appointment. Take matters into your own hands, which not everyone is going to be comfortable with and it's not going to be medically indicated. Or be forced to remain pregnant against your will. Not long after Politico published this leaked opinion last night. People like Senator Bernie Sanders said, you know, now is the time to pass legislation. And if we can't get 60 votes, we should end the filibuster and do it with 50. How plausible is any legislation in this moment? Well, in the current Congress, Joe Manchin has already made it clear that he doesn't support what's known as the Women's Health Protection Act, which would be the legislative solution to row falling. So there's already a math problem there. I mean, that was already brought to a vote. So Bernie's saying, let's do it with 50 votes,

but they don't have 50 votes. They don't have 50 votes unless somehow Susan Collins or Lisa Murkowski decides to cross the aisle. So not only would there have to be a consensus to end the filibuster, they would also need more votes than they currently have. And then, you know, a legislative solution would also potentially end up in the Supreme Court. You know, and so for all Alito is saying now that this is something that should be left to the people's representatives, see what happens if this Supreme Court gets a nationwide abortion law that doesn't let Louisiana, Texas, and Oklahoma ban abortion, how will the 6-3 Supreme Court rule on that? We may not even get to that point, but that's an open question. So you're saying this isn't necessarily the end of abortion in the Supreme Court of the United States?

Absolutely not. Some of the reporting that I'm doing now is about attempts in red states not only to make abortion illegal within their borders, but to try to police what their residents do when they leave the state. So you had Connecticut this week pass legislation that seeks to protect their providers from lawsuits that might come from other states, because there is already this movement to say, it's not enough that I'm going to make abortion illegal within my borders. I'm going to try to prevent any, for example, this was a state in which it was proposed, anybody from Missouri from leaving to the extent that you could enforce it to go to a state where abortion is legal. And that's a pretty terrifying frontier because it's

already really, really, really hard to leave the state that you live in for a medical procedure. You know, that should be very quick and simple. And that is just a matter of changing your life. It's certainly much more life changing to have a child. asked to consider if things move as they're looking right now would be, can they try to stop people from leaving their states and going to a more friendly territory for an abortion? And that's a pretty scary prospect. I think that there's a tendency to point to the last election, the last justice to retire or die, the last, you know, legislative session. This is actually something that has been, the wheels on this have been turning for generations.

This is a goal that the conservative legal movement has single-mindedly pursued. And they have, at times, they have lost. They've lost many times, even if they've been able to chip away at abortion rights. But they've been laser focused on sort of picking themselves back up and doing it. And what their goal is, is to make abortion illegal everywhere. And so as shocking as it is, as enormous of a change in people's lives as this would be, they've been pretty open that this is what they want to do for a really long time. And there are certainly things

that accelerated us to this point, but it's really been a long time coming. On tomorrow's show, you're going to hear much more about the decades-long crusade to undo Roe versus Wade. In fact, Noel King will interview one of the leaders of that crusade. You can read Arindh Karmone in New York Magazine or at nymag.com.

Our show today was produced by Miles Bryan and Hadi Mawagdi, fact-checked by Laura Bullard and Tori Dominguez, engineered by Paul Mounsey and edited by Matthew Collette, and me, I'm Sean Ramos for M. This is Today Explained. Thank you.