Today, Explained - Roe v. Wade v. Trump

Episode Date: July 9, 2018

Tonight the president announces who might replace Anthony Kennedy on the United States Supreme Court. During his campaign, he promised he would choose pro-life justices to dismantle the abortion case ...Roe v. Wade. Mary Ziegler, author of "After Roe", explains what the country might look like if the 1973 decision is overturned. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Starting point is 00:00:00 Hello? Hello, is this Brie? Yes, this is. Brie, you're one of our summer interns from Today Explained. Yes, I am. But you're sick. Very sick, yes. You haven't been with us for days and days and days.
Starting point is 00:00:15 It's felt like a millennia. Well, since you're not here, I thought I'd, like, bring the show to you. That sounds amazing. I appreciate that. Okay, here goes nothing. Uber's moving forward, listening to feedback so they can improve and get better with every trip. They're building new features to take the stress out of your pickup and working on ways to keep you better protected and connected throughout your ride. And you can find out more by going to uber.com slash moving forward.
Starting point is 00:00:36 Look at me now, Mom. At some point tonight, the United States will know who President Donald Trump plans to put on the Supreme Court. But at this point, we already know one thing about her or him. The justices that I'm going to appoint will be pro-life. Where the appointee will stand on abortion. I think this is an opportunity to restore a culture of life in this country that honors God and blesses people. We definitely see this as an answer to prayer. Justice Kennedy was a legit swing vote on the issue.
Starting point is 00:01:13 He was the vote that was keeping Roe v. Wade the law of the land. That is done. So what happens now to one of the most controversial decisions the United States Supreme Court has ever made? So a lot of people assume that Roe was what made abortion controversial, and that couldn't be further from the truth. Mary Ziegler is the author of After Roe, the Lost History of the Abortion Debate. Before Roe, in 1973, was a state-by-state war going on to determine whether abortion would be legal in specific states. Heated debate on abortion is taking place throughout the country. You can hear it in churches, in women's clubs, on college campuses and state legislatures. Both sides press their propaganda war with rallies and marches, slogans and posters.
Starting point is 00:02:10 For example, New York State had pretty much no abortion restrictions before Roe. Other states like Texas pretty much didn't allow any abortions at all. And many states were somewhere in between. So there was an ongoing fight on a state-by-state basis between anti-abortion forces and abortion rights forces to figure out what the law was going to look like. One lawmaker brought a fetus and a bottle to the New York debate. Right here, in the jar. That decision is personal, not only for the people of the state of New York, but for each and every member of this legislature. No priest or politician, no doctor or any hospital administrator, no government official
Starting point is 00:02:55 or husband who should have the right to force any woman to have a child against her will. So when Roe came down, it was part of an already really bitter fight. The Supreme Court has been asked to rule specifically whether laws restricting abortion in Texas and Georgia are a violation of the right to privacy and a denial of individual rights guaranteed by the Constitution. If the Supreme Court decides the Texas and Georgia laws on abortion are unconstitutional, that would open the way to legalized abortion throughout the country. We'll hear arguments in number 18, Roe against Wade.
Starting point is 00:03:38 Who is Roe? Who is Wade? I want you to meet Jane Roe of the famed case Roe versus Wade. She is Norma McCorvey. Norma McCorvey was a woman who wanted to enter pregnancy and wasn't allowed to because of the law that Texas had on the books at the time. And Norma McCorvey at the time was 21. I found myself pregnant for the third time. I found out where an illegal abortion clinic was in Dallas. I went to it. It had been closed about a week before I had gotten there. Your baby was brought to term and adopted, right? Yes, sir, it was.
Starting point is 00:04:13 So you never had an abortion? No, sir, I never have. And they then took you as their symbolic case to go to the court? Yes, sir. But I didn't attend any of the court hearings or testify or anything like that. Just knew you didn't want a court? Yes, sir. But I didn't attend any of the court hearings or testify or anything like that. Just knew you didn't want a baby.
Starting point is 00:04:29 Yes. And she subsequently and kind of famously became a pretty prominent symbol for the anti-abortion movement. I've cheated people out of money. I've sold drugs. I was an abusive alcoholic for, you know, many, many years. But I think the far greater sin that I did was to be the plaintiff in Roe v. Wade. Okay, so Roe is an alias for Norma McCorvey, who's this young woman who wanted to end her pregnancy in Dallas.
Starting point is 00:04:57 Who was Wade? Wade was the district attorney of Dallas at the time that Roe v. Wade was litigated. And Norma McCorvey and the other plaintiffs in Roe were arguing that Texas's law was unconstitutional and filed suit against the state of Texas. And Henry Wade was the named defendant. Good evening. In a landmark ruling, the Supreme Court today legalized abortions. The majority in cases from Texas and Georgia said that the decision to end a pregnancy during the first three months belongs to the woman and her doctor, not the government. Thus, the anti-abortion laws right to continue or terminate a pregnancy. Who delivered the decision in Roe v. Wade? nominee, interestingly. And he spent a lot of time at the Mayo Clinic in Minnesota thinking a lot
Starting point is 00:06:05 about abortion as a medical procedure and doctors' thoughts about abortion. And a lot of that research and thinking was evident in the final opinion in Roe. The more recent abortion decisions out of the Supreme Court have been pretty close calls. Was Roe the original close call? Was it a tight decision? No, it was actually a 7-2 decision. And it's also interesting because Harry Blackmun thought at the time that Roe would not only be uncontroversial on the Supreme Court, but actually in the country. So I think Blackmun thought that this was going to be a fairly unremarkable opinion. So the fact that we're still talking about it this many years later
Starting point is 00:06:42 probably would have surprised the seven justices in the majority. And does the fact that we're still talking about it this many years later probably would have surprised the seven justices in the majority. And does the fact that it was seven to two speak to a different era of the court as far as the way political ideology influenced it? Or was it just not that controversial a case for the justices on the court at the time? I think it was a lot of justices who were fairly openly conservative about other things, like Warren Burger, the chief justice at the time, who had been a great critic of, you know, earlier decisions giving rights to criminal defendants, for example, just didn't think that abortion was going to be the kind of culture war issue it became. So I think it speaks both to how at least the justices, maybe even the elites, thought abortion was going to be the kind of culture war issue it became. So I think it speaks both to how at least the
Starting point is 00:07:26 justices, maybe even the elites, thought abortion was going to be less of a big deal politically and constitutionally than ultimately was the case. 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. During the second three months of pregnancy, it ruled a state may regulate abortion procedures, but only to ensure the safety of the mother. And in the last three months, whatever state laws say prevails. So the first takeaway was that the right to privacy was broad enough to encompass a woman's decision to end her pregnancy, right? So the 14th Amendment right to privacy included a woman's right to end a pregnancy. Why did Justice Blackmun
Starting point is 00:08:10 choose to base his decision on the right to privacy? I feel like that might be surprising to a lot of people. In part, it was because there's a line of cases that the court had decided earlier that were grounded in the right to privacy that seemed analytically related to abortion. So in 1965, in a case called Griswold versus Connecticut, the court had held that a law from Connecticut banning married couples from using birth control was unconstitutional. And then the court held that a Massachusetts law preventing single people from using contraception was unconstitutional. And in that opinion, the court held that if the right to privacy means anything, it means the right for an individual to decide whether to bear or beget a child. So by that point, the right to privacy had come to mean, at least for the Supreme Court, something that looked more like a freedom to make decisions about really important areas of your life.
Starting point is 00:09:07 OK, so the 14th Amendment right to privacy includes a woman's right to end her pregnancy. What other provisions are in the Roe decision? The second one was that the Constitution's idea of a person, because the Constitution mentions the word person a lot, didn't include fetuses or unborn children. The third was that the state's interest in protecting fetal life wasn't compelling at contraception, which meant that states couldn't ban abortion. And then probably the final one was what's called the trimester framework. So Roe basically said that what states can do depended on how far along in pregnancy a woman framework. So Roe basically said that what states can do
Starting point is 00:09:45 depended on how far along in pregnancy a woman was. So the government could do very little in the first trimester and couldn't do anything to protect fetuses or fetal life until after viability, which I think in 1973 was around the 24th to 26th week. So those were the big takeaways. So Roe's hefty. There's that 14th Amendment right to privacy, but then it also defines who a person is. It says states can't get involved in contraception,
Starting point is 00:10:17 and it breaks down government involvement based on trimesters. It's decided in January of 1973. Is it immediately celebrated, hated? Is it just another day? The abortion rights movement immediately after Roe didn't think that there was as much to fight about, although there were real questions about whether abortion was going to be accessible, even if it was legal. So now when you think of abortion, most people think of freestanding clinics, either independent clinics or Planned Parenthood. January 22nd, 1973 will stand out as one of the great days for freedom and free choice. This allows a woman free choice as whether or not to remain pregnant. This is extraordinary.
Starting point is 00:11:00 At the time, that was a pretty new phenomenon. So a lot of women who were getting abortions were still getting them at doctor's offices or hospitals. So in a lot of states, like in Louisiana and Mississippi, there were still women dying because they were having illegal abortions or they couldn't access abortion, especially poor women of color, partly because the services weren't available, even if they were legal. So the abortion rights movement knew that the kind of medical side of the equation was still a work in progress. But I think there weren't political rallies as much on the abortion rights side because they thought Roe had settled the question. And how did abortion opponents react to Roe? The anti-abortion movement reacted pretty badly to Roe right away. How many millions of children prior to their birth will never live to see the light of day because of the shocking action of the majority of the United States Supreme Court today?
Starting point is 00:12:05 How did the country put this decision into effect? Was it immediately being challenged or was there a period of tranquility? The first push was for a constitutional amendment that would not just overturn Roe, but that would ban abortion nationwide. But over time, as it became clear that the Constitution wasn't going to be amended, leading anti-abortion groups decided that the goal was going to be to overturn Roe, not to amend the Constitution. And that as part of that process, there would have to be all of these incremental restrictions that would set the stage for a decision overturning Roe. Where does this national fight go? Is it to legislation? Well, what happened after that was the Supreme Court for a while rejected efforts to chip away at Roe through the early 1980s. But then some of the justices who had been on the Roe majority began to age and retire. It's not just in fulfillment of my constitutional duty, but with great pride and respect for his many years of public service, that I am today announcing my intention
Starting point is 00:13:05 to nominate United States Circuit Judge Anthony Kennedy to be an associate justice of the Supreme Court. By 1989, you had a plurality on the court essentially saying Roe doesn't make any sense. This whole idea of viability is not constitutional law. It's kind of the court playing doctor. And so it seemed at that point to anti-abortion activists that the court was pretty much inviting them to challenge Roe immediately. So by 1992, the most recent Supreme Court nominee had taken their place. There were
Starting point is 00:13:40 people like Clarence Thomas and Anthony Kennedy and David Souter who were widely expected to vote that Roe wasn't good law. And so the court wound up taking a case called Planned Parenthood v. Casey. The court agreed to uphold three of four restrictions on abortions in Pennsylvania. But at the core of the case was whether or not they should overturn Roe v. Wade. And the court retained what they called the essential holding of Roe. So the idea that the Constitution does protect a right to abortion. But the court also changed Roe in foundational ways. The court got rid of the trimester framework and replaced it with this kind of nebulous thing called the undue burden standard. The undue burden standard.
Starting point is 00:14:22 What's what's that? So the undue Burden Standard says that abortion regulations are constitutional unless they have the purpose or effect of creating a substantial obstacle for women seeking abortion. It wasn't clear to anyone what that meant. The court applied it in the Pennsylvania case Casey and wound up striking down only one of a bunch of abortion restrictions that were before the justices. That was a law requiring women to notify their husbands. So it was clear to most observers that Casey would allow states to regulate abortion much more than Roe had. The fact is the court did uphold Pennsylvania, a very restrictive law, and I think it opened the door and gave a green light to politicians across
Starting point is 00:15:05 the country to enact more onerous restrictions. And actually, when we're talking about Roe being overturned now, we're really actually talking about Casey, because Casey is the binding law now. And Roe too, but what's left of Roe after Casey, not the original decision. Really? So Roe v. Wade isn't even the question when we talk about Roe v. Wade? It's this Casey Planned Parenthood case from 92? In a way, yes, right? So Casey modified Roe in fundamental ways. You kind of can't talk about Roe being overturned without talking about Casey because the version of Roe that we have now is one that's been heavily, heavily modified in 1992. It's interesting in its own right, right, because why are we still talking about Roe?
Starting point is 00:15:55 I mean, I think that speaks to the sort of symbolic power of Roe, because even if it's not the decision it once was, it's always had this kind of magnetic pull on Americans in a way that Casey didn't and a way in which a lot of other Supreme Court decisions haven't. This Casey decision from 1992 basically rewrites Roe. It opens it up to all kinds of legislative challenges. And it's been chipped away, state by state, law by law. So what's left of Roe? And how will a new balance at the Supreme Court affect it? That's next on Today Explained. So tell me a bit about your disease, Brie. So I have mono, which is actually a very common, like, not really too serious condition.
Starting point is 00:17:00 And with me, I guess my immune system went haywire and decided to close up my air pathways and my tonsils and everything I need in order to breathe. So I was rushed to the emergency room and then transported to the hospital in an ambulance. Oh my gosh, not in an Uber. Not in an Uber, sadly. You know, I was right about to call one too. It was 2 a.m. and my family went home and I was like, an ambulance sounds expensive. I'm going to like Uber or something. And they're like, you're being ridiculous right now. I kind of get why you might have thought to use an Uber. They've got new features, Brie. Like what? thought to use an uber they've got new features like what oh you know like like making it easier
Starting point is 00:17:46 for you to verify the details of your ride and showing your driver's name car and license you can make sure you take the right ride every time that's awesome yeah there's more information at uber.com moving forward it tells me to to the real world what's it like out there? Are people taking Ubers? Mary, you said this Casey decision from 1992 lets states regulate abortion much more aggressively than they could under Roe. Does that happen all at once or over time? So there was a spike in anti-abortion laws in state legislatures. So after the Tea Party wave. So this is 2010?
Starting point is 00:18:31 Yeah, 2009, 2010. There was a big surge of Republican elections in state legislatures and a real increase in anti-abortion legislation in the states. And we've seen about 20 states have passed 20-week abortion bans that would make it illegal to do an abortion after 20 weeks of gestation. We've seen a number of states pass things like ultrasound laws. So we've seen a lot of gains in terms of number of states with clinic regulations.
Starting point is 00:18:56 So a variety of metrics, but we've seen a number of laws have been passed. Guttmacher tracks, state-level pro-life laws, and it seems that every year we set a record. We had like 92 pass in 2011. We had 70 pass in 2013. That's amazing. So states have become very active passing these laws.
Starting point is 00:19:11 And we've done quite a lot to protect the unborn. How many of these chips away at Roe v. Wade got up to the Supreme Court and Anthony Kennedy? So the court from 1992 until 2016 didn't have just a huge appetite to hear abortion cases. So while abortion opponents were introducing tons of abortion regulations, the court wasn't necessarily that involved. This was happening mostly in politics without the court intervening for a while. And how might that change if politicians are now aware that Anthony Kennedy isn't around? I don't know what the new presumed five-person majority that would be skeptical of Roe is going to want to do. And I think if you're the anti-abortion movement, you still have to be careful not to ask for too much too soon because there's still kind of like reputational and institutional constraints where the justices want to appear
Starting point is 00:20:10 like neutral justices, not politicians. They want to appear to respect precedent. So, you know, exactly what happens next, I think, is more unpredictable than some commentators make it sound. Well, let's try anyway. Let's try. Yeah, no, I'm happy to try. So what might happen if President Trump nominates someone who wants to overturn Roe v. Wade, who wants to overturn the case decision from the 90s? I saw Jeff Toobin say this thing on the TV.
Starting point is 00:20:53 You are going to see 20 states pass laws banning abortion outright, just banning abortion, because they know that there are now going to be five votes on the Supreme Court to overturn Roe v. Wade. Now, some of those states would almost certainly ban abortion because I think at least four of them have what are called trigger laws that would pretty much automatically ban abortion as soon as Roe and Casey are overturned. OK. And there are other states I've seen that I would anticipate there being a pretty intense discussion. So I think what you would likely see was a big, ugly state by state fight about whether abortion was going to be legal, with some outcomes being kind of obvious. Like, I think it's safe to assume that states like Mississippi would go from having, you know, one abortion clinic to zero. States like California and New York, where abortion is broadly available and that, you know, make up a pretty high percentage of
Starting point is 00:21:39 nationwide abortions, those would continue to offer abortions and everywhere else would become a battleground. So a state like California or New York, they would continue to offer abortions in violation of some Supreme Court decision? No, unless the court really surprises me, all Overturning Row does is allow the states to ban abortion. It doesn't require them to do it. So states that want to allow abortion can do that. States that want to criminalize abortion can do that. On the other hand, I think it's safe to say we already have a patchwork because of Casey, and we would continue to have a patchwork. It would just be a patchwork with respect to legality instead of a patchwork with respect to access.
Starting point is 00:22:37 So you would expect there to be kind of red states and blue states when it came to abortion legality, much like there are red states and blue states when it comes to abortion access today. What would criminalizing abortions look like? I feel like that might be hard for people to imagine. You have to talk in a serious way about abortion providers and women who have abortions potentially going to jail, which is not something we're talking about in a really meaningful way now. There have already been women imprisoned for having abortions when those abortions are illegal. So there are states that require you to only have a medication abortion with a doctor's supervision or only before a certain point in pregnancy. And there have been women who have terminated their own pregnancies, again, you know, in ways that violated the law. On Monday, Purvi Patel, an Indian American woman, became the first in U.S. history sentenced to prison
Starting point is 00:23:25 for feticide for ending her own pregnancy. In 2013, Patel arrived at a hospital bleeding. She told doctors she had a miscarriage and disposed of her stillborn fetus in a trash receptacle. Prosecutors would later accuse Patel of taking drugs to try to end her pregnancy, based on text messages to a friend where she discussed buying the drugs online. Her conviction was ultimately reversed on appeal, but it just shows you that, you know, you can easily imagine that some states would choose to punish women. There have been, you know, successful criminal prosecutions at the trial court level of women who
Starting point is 00:24:03 have ended their pregnancies. So that's already happening. And obviously, if abortion were broadly illegal in some states, you'd expect much more of it. Does this mean that if Roe v. Wade is officially overturned and you're a woman in America somewhere, you might want to move to another state where abortion will remain legal? Well, if you have money, you should probably not worry about it, right? Because you could just travel out of state to have an abortion, which is to some degree what happened before Roe, and it would be what you would expect to happen after Roe too. Unsurprisingly, the women who are having DIY abortions at home now and the
Starting point is 00:24:43 women who would be doing that after Roe are women for whom that's not really a realistic option. How is the way Americans feel about this changed over time? I mean, we hear most about pro-life and pro-choice, but a lot of people must just fall in the middle and be sort of unsure, right? Yeah. Well, actually, public opinion on the substantive questions, like if you ask Americans about a specific abortion restriction or whether abortion should be illegal sometimes, always, or never, the public opinion's been really remarkably stable. So there's a group of Americans who are pretty much always opposed to abortion, and that roughly is 20%. There's a slightly larger group of people who are pretty much always opposed to abortion, and that roughly is, you know, 20%,
Starting point is 00:25:25 there's a slightly larger group of people who think abortion should be altogether unregulated, usually, you know, 30%-ish. And then there's a pretty substantial plurality that's in the middle that thinks abortion should be regulated, but not on demand. So legal, but restricted. And then if you kind of probe further, Americans are more comfortable with abortion being widely available earlier in pregnancy rather than later in pregnancy. And so often the headline is X percentage of Americans think or identify as pro-choice or pro-life. But when you dig a little deeper, often what people are talking about in terms of what they actually
Starting point is 00:26:05 believe the law should do has remained pretty constant since 1973. How is it that public opinion hasn't really wavered significantly, but the politics have? It's a seven to two decision in 1973, and now it splits the court. It's not a big item legislatively, and there's this burst of laws and regulations after the tea party wave. It seems like the politics don't reflect the people. It just sort of speaks to how if you have a really passionate minority that can sway politics even if that doesn't really track what you know most Americans think. I think you're never going to get to a point at which people agree on this because it deals with people's core beliefs about things like women's role in society, biology, the role
Starting point is 00:26:56 of government. But I think that it would certainly be possible if our political alignment was different for people to agree on more things that would make women less likely to want to seek abortions. There are definitely women who would probably like to be able to carry a child to term who can't because having a child means that they're going to be unable to keep a job or go to college or because they were sexually assaulted or because they're in a violent relationship. And so I think if the political alignment in the country were different and there was more support for laws kind of making life better for pregnant women and for women in general, there may be fewer women who wanted to have abortions. I mean, the number's already gone down a lot,
Starting point is 00:27:38 but the number could definitely go down a lot further if it were easier to be a woman in America. Mary Ziegler teaches law at Florida State University. I'm Sean Ramos-Firm. This is Today Explained. Uber's moving forward. Listen to feedback so they can improve and get better with every trip. They're building new features to take the stress out of your pickup and working on ways to keep you better protected and connected throughout your ride. You can find out more by going to uber.com slash moving forward.

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