Today, Explained - The end of Roe v. Wade

Episode Date: June 24, 2022

The Supreme Court overturned a 49-year-old precedent that secured the right to an abortion. Irin Carmon from New York magazine breaks down the case and Vox’s Ian Millhiser argues the Supreme Court is undermining democracy. This episode was produced by Haleema Shah and Amina Al-Sadi, edited by Matt Collette, fact checked by Victoria Chamberlin and Victoria Dominguez, engineered by Paul Mounsey, re-uploaded by Efim Shapiro and hosted by Noel King. 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

It's Today Explained. I'm Noelle King. Sean Ramos-Ferrum, my co-host, you're outside of the Supreme Court right now? I am. I am. It seems like we got people who are celebrating a decision and people who are protesting a decision, but I would say there's a lot more people protesting out here. What are you hearing? I'm hearing, F the courts and legislators, women are not incubators. I'm seeing signs that say, I will aid and abet abortion. But it feels like almost like the anti-abortion people out here are almost bystanders to a much bigger protest about a decision that the majority of this country did not want. And that decision is this.

The Supreme Court voted 6-3 today to overturn Roe v. Wade, the 49-year-old ruling that guaranteed the constitutional right to an abortion. Coming up on today's show, how and why Roe was overturned. BetMGM, 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 sportsbook born in Vegas. That's a feeling you can only get with Bet MGM. And no matter your team, your favorite player, or your style, there's something every NBA fan will love about Bet MGM. Download the app today and discover why Bet MGM is your basketball home for the season.

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We will hear argument this morning in case 19-13-92. Dobbs v. Jackson Women's Health Organization was the case. Mississippi passed a law. It was not an extraordinary law. It wasn't particularly complicated. It didn't have any gotchas like some other laws that we've seen. But the Supreme Court agreed to hear it. The court agreed to hear it

even though it had previously ruled to guarantee the right to an abortion prior to viability, which is around 20 to 24 weeks. So this clinic, providing abortions up to 16 weeks, was working well within a settled law. And that's the part that made this case historic, because it showed that by considering a case

that flew in the face of its precedent, the Supreme Court was ready to revisit that and perhaps overturn it entirely. Irin Carmon is a senior correspondent at New York Magazine. She says this case has been historic since oral arguments, and that means a lot of people were paying very close attention. What was unusual about oral arguments is that for the first time, the Supreme Court had agreed to even hear the question of overturning Roe entirely, as opposed to a kind of sideways question in which everybody knows that that's below the surface, but they first asked the Supreme Court to hear the case, and when it actually agreed to hear the case, something significant happened, which is that Ruth Bader Ginsburg died. And the Supreme Court had already lurched to the right with the retirement of Anthony Kennedy, who was the last Republican appointee who voted for abortion rights and saved Roe v. Wade in Planned Parenthood v. Casey in 1982.

But this even further guaranteed that there would be a majority on the court to overturn Roe v. Wade when Justice Ginsburg died and was replaced by Amy Coney Barrett. And so suddenly, Mississippi had asked for something even bigger. They didn't just ask to ban abortion at 15 weeks. They asked to overturn Roe and its subsequent reaffirming Casey entirely. Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They poison the law. At oral argument on December 1st, the justices suddenly had to show their cards in a way that they hadn't before. You had the Democratic appointees, who are now vastly outnumbered, there are three of them on a court of nine,

openly saying that the only reason that the court was even here in the first place was not because anything had changed in the world, but because the composition of the court had changed. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts. And then you had Chief Justice John Roberts trying very hard to hearken back to a time where the court might be open to what would be perceived as a compromise. And so he was very interested in is there a way to uphold Mississippi's law without overturning Roe entirely, which is where his conservative fellow justices were, they were openly expressing their hostility to Roe and to Planned Parenthood versus Casey. And so if you were listening to oral argument that day, it was abundantly clear that there were at least five votes, so they don't even need Chief Justice John Roberts right now, at least five votes for overturning Roe v. Wade.

Can you talk to me specifically about Justice Kavanaugh and Justice Coney Barrett? What was the vibe that the two of them were giving off? Were there areas of disagreement between them, or did it feel like they had formed a kind of united front? There was some speculation leading up to oral argument that perhaps Amy Coney Barrett and Brett Kavanaugh, two justices appointed by Donald Trump, would find a middle

way in the same way that in 1992, Justice Anthony Kennedy, Sandra Day O'Connor, and David Souter joined together for a compromise in Planned Parenthood versus Casey. There was no indication, there were no vibes on December 1st at oral argument that showed that they were interested in a middle ground which they would potentially form with Chief Justice John Roberts. Now, all of these justices, it's very clear from reading between the lines of their existing jurisprudence, are deeply hostile to abortion. If you are somebody who is shaped in the crucible of the conservative legal movement, Roe is the devil to you and you were brought onto the court to get rid of it. But if you're also someone who is shaped by Republican Party politics, as many of them were, you know, Brett Kavanaugh worked in the White House,

Chief Justice John Roberts worked for the Reagan Justice Department. You could also worry about the backlash going too far too fast. You could worry about the legitimacy of the Supreme Court as opposed to only your ideological aims. You could worry about the Supreme Court

losing authority in the eyes of the American people. So these were the reasons that before oral argument, there was some speculation based on the kind of quiet incremental paths that Kavanaugh and Barrett had in the very first month, very first year or so of their time on the court carved out. So what we heard from Justice Barrett, I think for anyone who's really familiar with the anti-abortion movement's sort of softer, kinder face, the alternatives that they have put forward from the kind of fire and brimstone that you sometimes see

in opposition to abortion has been all about emphasizing gentle motherhood, women's fundamental nature as mothers. And Amy Coney Barrett is the prime spokesperson for this. She has five biological children and two adopted children. Lindsey Graham touted her openly as pro-life. There was no kind of beating around the bush about where she stands on abortion. And she repeatedly remarked that the encroachment on bodily autonomy, which is one of the arguments made in support of abortion rights, could be mitigated because now many states have, quote, safe haven laws where you could, against your will, carry a pregnancy to term, give birth, and then drop off the baby for adoption, no questions asked, no further relationship.

So Petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child after abortion. There was no indication in oral argument that either Brett Kavanaugh or Amy Coney Barrett were interested in a middle ground. Erin, what was the case that the pro-abortion rights side made? The first thing that they have argued is that nothing has changed when it comes to the conclusions that the court came to. And that maintaining its precedent is so fundamental to the stability of the republic, to all of the branches of government working together. The view that a previous precedent is wrong, Your Honor, has never been enough for this court to overrule.

And it certainly shouldn't be enough here when there's 50 years of precedent. But again, just judging from how open the justices were being about where they stood, it seemed clear that there were not five votes for the position that a person has a fundamental right to decide whether to be pregnant or not. And so we get to the end of oral arguments, and I think it's fair to say things are not looking good for the pro-abortion rights side. And then there was a leak of a draft opinion. What did that leaked draft change? Did it change anything, or did it just let us know, hey hey world, this is where we're heading? To have months of reporting on the impact, what's happening to individuals, we're just trying to figure out, can I get an abortion right now? Do I have to decide before I'm ready? Do I have to go to another state? How legally threatened am I? I think the plight of those

people, which has been an ongoing plight but has just intensified and become more uncertain, suddenly has been much more in the forefront for longer. And I do think that that changes something. I don't know if it helps that person, but I think it's different from where we might have been if this opinion had not come out with so much palace intrigue. Is this the end of cases about abortion being brought before the Supreme Court? Is this the final, final ruling? Or a decade from now or 10 months from now, could we have another case come before the Supreme Court that forces them to consider abortion and its legality and the extent of its legality again? This is not the end of the Supreme Court tackling abortion.

Number one, because if the Supreme Court says that this is left to the states, out of a recognition that states have very different ideas about what abortion rules should be, what about when somebody crosses state lines? What about when a state has not only banned abortion, but has also passed all kinds of restrictions on, for example, sharing information about how to end a pregnancy by yourself safely or sharing information about how to go to another state. Could such sharing of information be criminalized and still respect the First Amendment? That's a question for the Supreme Court. And then a question of how far a state can punish either someone who, quote, aids and abets or somebody who seeks

an abortion that's illegal within their state lines? These are questions that are going to start in the lower courts and make their way back up to the Supreme Court inevitably. Coming up, what today's ruling means in the immediate term. And our Supreme Court correspondent is going to reflect on whether in overturning a law that polling suggests a majority of Americans did not want overturned, the Supreme Court has become, his words, a malign institution. Thank you. team's 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 dot com slash explained. Cards issued by Sutton Bank, member FDIC, terms and conditions apply. it's today explained ian milhiser senior correspondent for vox covering the supreme court what a day this is yeah so roe v wade is dead um the right to an abortion, which has existed for half a century in the United States, no longer exists. Eighteen states currently have laws on the book that ban abortions either outright or extraordinarily early in the in the pregnancy. Many of those laws are in effect right now. Some of them are going to go into effect over the course of the summer.

It is likely that many states with Republican legislatures will pass new laws banning abortion very, very quickly. So the landscape governing people's reproductive autonomy is now fundamentally different than it was just a few hours before we are recording this. Tell me briefly about the ruling. What stands out to you? Alito's final majority opinion does contain a significant amount of language saying, hey, abortion is different. He says specifically abortion is the only thing that can lead to the death of a fetus in a way that contraception does not. So he tries to turn down the temperature on the question of whether other rights are in danger. That said, I do think

there's going to be a lot of litigation about whether those rights are in danger. And it remains to be seen whether the court cuts back on the same sex marriage. Right. I think that the court probably is not going to say that an outright ban on contraception is unconstitutional. But there are a lot of people who believe, you know, sometimes for scientifically dubious reasons that certain forms of contraception are themselves forms of abortion. And so there's going to be litigation about whether, say, a state can ban IUD because some people think that an IUD causes an abortion. So there's a lot of litigation to come here. I can't really predict how all of it comes out. The court says that not every right that, you know, is related to sexual autonomy or bodily autonomy is in danger. But I think there will be some rights on those topics which are now in danger. You recently wrote a very comprehensive article for Vox called The Case Against the Supreme Court of the United States. Given what you've just said, that the court has ruled in a way that

the majority of Americans would disagree with, go ahead and make the case against the Supreme Court of the United States. Well, I guess let me start with the case against this particular court, you know, the justices who are sitting right now. If you read Alito's opinion, he spends a lot of time talking about how this is a pro-democracy decision. What Roe v. Wade did, and, you know, this is accurate as far as it goes, is it made abortion a subject that was settled regardless of what state legislatures do. And all that he is doing is returning to the state legislatures the ability to determine whether or not abortion will be legal in each state. And while Alito and, you know, the justices who are in the majority in this Dobbs opinion have been attacking abortion rights, they've also been attacking voting rights and like very comprehensively attacking voting rights.

They have largely dismantled the Voting Rights Act. Any racial discrimination in voting is too much. But our country has changed in the past 50 years. They have blessed partisan gerrymandering. The conservative majority said federal courts cannot take up the issue of policing partisan gerrymandering. And then they turn around and they say, oh, but all that we're doing is returning abortion to the democratic process. Well, they're returning it to a rigged democratic process. You know, if there were a referendum on abortion, if they want to truly have a democratic showdown over abortion, I am fairly confident that the pro-choice side is

going to win that fight. But the reason why there are still going to be a lot of anti-abortion laws in this country, or at least a big reason why there's still going to be a lot of anti-abortion laws in this country, is because the Supreme Court isn't just dismantling our abortion rights. It is dismantling our democracy. Is there a time in history when the Supreme Court was working in your view? I mean, there are a few periods in American history where I think the Supreme Court did a good job of honoring the Constitution and our laws. Those periods are extremely rare. So let me give you a brief history of the Supreme

Court. So the Supreme Court is a 230-something-year-old institution. The first time it struck down a federal law was a case a lot of people probably heard of. It's called Marbury v. Madison. All that Marbury really said is striking down federal laws is a thing that we're allowed to do. The second time it used that power was Dred Scott. Dred Scott is a pro-slavery decision, which said that black people are not entitled to citizenship because they are, and this was the Supreme Court's words, beings of an inferior order. So that was the first time they took out this power to strike down federal laws for real, was Dred Scott. We fought a civil war to get rid of Dred Scott. We ratified three constitutional amendments to get rid of Dred Scott. And the Supreme Court spent the next 30 or 40 years basically writing those amendments out of the Constitution.

That was the era when we got Cruikshank, which was a decision that said, if you are black and if you are black in the South and you need to invoke your constitutional rights in order to protect yourself against your government, you have to look to your state government. You know, in Mississippi, black people had to look to their state government to protect their rights. That's what the Supreme Court said. This is the Supreme Court that handed down Plessy v. Ferguson, which blessed separate but equal. And then after they had dismantled the settlement of the Civil War, after they had taken away the racial equality that we fought a damn war for. They spent the next 30 or 40 years transforming one of those amendments, the 14th Amendment, into a vehicle to strike down progressive labor laws. So we got decisions like Lochner, which made it very, very difficult to get any kind of

progressive labor legislation, no minimum wage, no maximum hour law, no protections for unions. So the decision we got today from the Supreme Court striking down Roe v. Wade, this is consistent with most of the court's history. You know, the decisions that I talked about earlier, dismantling our voting rights, that is consistent with the Supreme Court's history for almost all, not all, you know, we can talk about the Warren court if you want, but for almost all of the court's history, it has been a fundamentally malign institution. You know, a couple of weeks back, I was interviewing two religious conservatives. One was a professor and one

worked at a think tank. And they were talking about how the court, the Supreme Court, sometimes rules in ways that conservative Americans would really prefer it did not. They were talking specifically about the ruling that legalized same-sex marriage. And I think they'd say to you, look, Ian, we've taken our losses. The conservative side has taken our losses. Today, your side took a loss. What do you think about that? So I think that it is correct that if you look at the long arc of the Supreme Court's history, it is not a never-ending stream of liberal defeats over and over again in every single individual case. So for most of the court's history, it was always a political institution, but it wasn't a particularly partisan

institution. You know, the fact that a particular justice was nominated by a Democrat or a Republican often didn't tell you very much about their politics. You know, historically, the party that appointed a justice wasn't necessarily a great predictor of how that justice would vote on the Supreme Court. It is the case now. And that is extraordinarily troubling. You know, the whole point of the court is that they're supposed to be nonpartisan. They're supposed to evaluate legal questions objectively without attention paid to, you know,

which party will prevail or whether conservatives or liberals will like the outcome more. And that is not the court that we have. And I think that both political parties have gotten very, very good at figuring out what kind of judges they need to appoint to get the results that they want. And that is troubling because it turns the Supreme Court into something that it's not supposed to be.

It turns it into a partisan institution. But other than burning the Supreme Court down, which I know you don't endorse, this is the court we have, right? These are the justices we have. And we would prefer it, all of us, if Americans had some faith in American institutions. You've just given us a series of reasons

why maybe we shouldn't have faith in the Supreme Court, but I want to offer you an opportunity to give a fix, man. So there are several potential fixes. So first of all, the Constitution does not say how many justices shall sit on the Supreme Court. There have been as few as five seats on the Supreme Court. There have been as many as 10. So Congress could pass a bill tomorrow if they wanted to that simply added, you know, however many seats, like six seats to the Supreme Court. President Biden could fill those seats and then there would be a new majority on there, potentially be a pro-abortion majority on the Supreme Court. So that is one option. And I will say that the court's recent actions have made it so unpopular that I recently saw a poll which said something I thought I would never see, which has said that a plurality of Americans support court packing as a solution. Today's show was produced by Halima Shah and Amina El-Sadi. It was edited by Matthew Collette.

It was fact-checked by Tori Dominguez and Victoria Chamberlain. And it was engineered by Paul Mouncey. I'm Noelle King. It's Today Explained. Thank you.