Today, Explained - Unraveling Roe

Episode Date: December 2, 2021

The Supreme Court today heard oral arguments in Dobbs v. Jackson Women’s Health. Vox’s Ian Millhiser explains how the Court could undo Roe v. Wade without overruling it. Today’s show was produced by Victoria Chamberlin with help from Hady Mawajdeh, edited by Matt Collette, engineered by Efim Shapiro, fact-checked by Laura Bullard and hosted by Sean Rameswaram. 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

Get 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. Oh yay, oh yay, oh yay. All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God in the United States, mostly pertaining to the state of Texas. But today, a Mississippi abortion case was heard at the Supreme Court of the United States. What happened?

Based on what I heard today in this Mississippi case, I think the most likely outcome is that Roe v. Wade is doomed. Donald Trump promised when he if he got elected president, he would nominate justice who would overrule Roe v. Wade. Well, if we put another two or perhaps three justices on, that's really what's going to be that will happen. And that'll happen automatically, in my opinion, because I am putting pro-life injustices on the court. He appointed a third of the Supreme Court. And it now looks like when you take those three justices plus two more who are already there, that there are probably five votes to overrule Roe v. Wade in its entirety. There are almost certainly five votes to do considerable damage to the right to an abortion. OK, well, just to understand how we got there, let's first talk about the Mississippi case.

What's going on in that state? of the person's last menstrual period. So if you know anything about anatomy, for most people, that's going to be a 13-week ban for abortions. And the reason why that is unconstitutional, at least under existing law, is in a case called Planned Parenthood v. Casey, the Supreme Court said that there is an absolute right to an abortion. States cannot ban abortions prior to viability. Viability is the moment when the fetus can live outside of the womb. That's typically around about 24 weeks. And, you know, whether you think of this as a 13 week ban or a 15 week ban, 15 is less than 24. Like, you know, this is a pre viability ban.

In order to uphold this law, the Supreme Court is going to have to overrule at least part of Casey. OK, so that sort of sets the table for what happened today here in Washington. And there are a lot of people outside the Supreme Court letting their feelings be known, I believe. Yeah, I mean, there always are for cases like this. I think pretty much everyone who follows the court knew that this is the single greatest threat to abortion rights since Roe v. Wade was handed down in 1973. And so you had a whole slew of protesters who are really excited about the possibility that the constitutional right to abortion may cease to exist. And you have a whole lot of protesters who were really disturbed by that possibility. And they all met and waved their signs around today in front of the court. And what happened inside the court? It was clear from the beginning of the oral argument

that the stakes are very high. Mississippi's lawyer got up and immediately asked the court to overrule Roe v. Wade. Roe and Casey have failed, but the people, if given the chance, will succeed. This court should overrule Roe and Casey and uphold the state's law. I welcome the court's questions. There were some instances where a justice might have asked a question like, well, is there a more incremental approach? Is there something that we could do to uphold your law that's shy of upholding Roe v. Wade? And that lawyer just kept coming back to, I mean, sometimes he'd give an answer, but he kept coming back to, really what you should do is overrule Roe v. Wade. Nowhere else does this court recognize a right to end a human life. Everyone there knew what was at stake, including the justices. And the counter argument?

How is the right to an abortion defended? A huge question in the case is the importance of something called stare decisis. Stare decisis is the rule that courts are supposed to follow their own precedents. In Casey, this court carefully examined and rejected every possible reason for overruling Roe. They have to have a really, really good reason to overrule a precedent. And one thing that kept coming up over and over again is it's not clear what the reason is to overrule Roe v. Wade. Pregnancy itself is unique. It imposes unique physical demands and risk on women and in fact has impact on all of their lives and their ability to care for other children, other family members, on their ability to work.

And in particular, in Mississippi, those risks are alarmingly high. It's 75... Mississippi, their lawyer kept trying to argue that things have changed. They kept trying to argue that medical technology has changed in some significant way. But it really it has it. Pregnancy looks pretty similar now to how it looked in 1973 when Roe was decided. There really hasn't been any fundamental changes here except for one. And that is that the Supreme Court has a lot more conservative Republicans on it than it did when Roe was decided or when Casey was decided. And how did the nine justices on the Supreme Court receive arguments from each side today? So you have three justices on the court,

Clarence Thomas, Samuel Alito, and Neil Gorsuch, who want the most maximalist conservative outcome in pretty much every case, and they did not betray their normal instincts in this case. Samuel Alito at one point seemed to compare Roe v. Wade to Plessy v. Ferguson, the segregation decision. So suppose Plessy v. Ferguson was re-argued in 1897. So nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled? and Barrett, who are the two justices that, you know, will decide whether the court will overrule Roetz entirely or take a more incremental step against abortion rights. There was one point where he rattled off a long list of cases, including Brown v. Board of Education. If the court in those cases had listened and they were presented with arguments in those cases, adhere to precedent in Brown v. Board, adhere to Plessy. In West Coast Hotel, adhere to Atkins and adhere to Lochner.

And if the court had done that in those cases, the country would be a much different place. He seemed to be saying, look, we overruled all these other precedents. What's one more? Barrett asked a lot of questions about adoption. It seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion. Why didn't you address the safe haven laws and why don't they matter? And she seemed to feel that, well, you know,

what's the big deal? So long as you can give the child up for adoption, you're not going to have any parental obligations. And Chief Justice John Roberts? Roberts asked a bunch of questions that when it was still a five to four court, I would have thought were very significant. I mean, Robert signaled that he thought using this case as a vehicle to overrule Roe is going too far, that the case is about viability and nothing else. And they should just resolve that and like, let that be. One point he said, hey, like, I think 15 weeks is enough time to make the decision whether or not to terminate a pregnancy. But if it really is an issue about choice, why is 15 weeks not enough time?

But he also seemed to suggest that, like, that was the only thing that the court needed to decide here. And before Justice Ginsburg's death, when there was a five to four court, if I heard Chief Justice Roberts saying it, I'd say, well, he's the median vote, so I guess he's going to get what he wants. And that's what the opinion is going to say. What is different now is that the court's right flank doesn't need Roberts anymore. Roberts can try to find his cautious incremental approach and he can suggest all of these ways to, you know, take little steps and try to preserve the court's legitimacy in the process. And it seems like no one cares anymore. More with Ian momentarily. up with family and Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter. Aura frames make it easy

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Oh, yay. Oh, yay. Oh, yay. Ian, you sound pretty sure that Roe v. Wade has a tough path ahead. What makes you so sure? Well, I thought that Roe v. Wade had a tough path ahead before this argument even happened. I mean, first of all, the mere fact that the court decided to take this case is significant. You know, Planned Parenthood v. Casey was very clear that you can't ban abortions before viability. This law bans many abortions before viability. So the mere fact that they thought that this case was worth taking is significant. You know, the fact that the court is more conservative now because

of Trump's three appointees than it's been since the early days of the Franklin Roosevelt administration is significant. And on top of that, you have all the drama we've seen in Texas right now, where Texas passed a law that bans abortions starting at six weeks. And that law has been in effect since early September. The Supreme Court allowed it to go into effect then. So every signal the court has given, even before a single justice opened their mouth at today's oral argument, signals that Roe v. Wade is in deep, deep trouble. And there was nothing at the oral argument today which led me to change that opinion. Well, give us some of the possible outcomes here. What might be the result of Dobbs v. Jackson Women's Health Organization?

So broadly speaking, I think there's four possible outcomes. The least likely outcome is that they strike down the Mississippi law. I don't think that's going to happen. One possible outcome is that we get a relatively incremental decision attacking abortion rights. And when I say relatively incremental, because, again, they in order to uphold this this Mississippi law, they're going to have to get rid of the line set in Casey that there's an absolute right to an abortion law for three decades. But like they may get rid of the viability line while nominally leaving some protections in place. A third option is that they honestly overrule Roe v. Wade. So they just say, we think Roe was wrong. Roe v. Wade is overruled. States can do whatever they want on abortion.

That's the third option. The fourth option, which isn't that different than the third option, is basically that we get a dishonest opinion overruling Roe v. Wade. So the court might not write the words Roe v. Wade is overruled, but there are lots of ways that they could write a legal standard that makes it impossible for people to protect the right to an abortion. So an example of that would be, again, this case is about viability. The Supreme Court could say, oh, yeah, yeah, we're keeping the viability rule in place. But there's just a lot of uncertainty about when a fetus is viable. So it's up to the states to determine when it becomes viable.

And if they want to say that a fetus is viable in the first minute of pregnancy, that's fine. So, you know, if the court does something like that, it's basically the same thing as overruling Roe. Well, if the court upholds this Mississippi case, which it sounds like you think is highly likely, what does that mean for abortion rights across the country? So it depends what the opinion says. If the opinion overrules Roe, either honestly or dishonestly, that means that states can do whatever they want. So that means that Mississippi or any other state, for that matter, can ban abortion outright. A lot of states have written laws while Roe v. Wade was still good law that were basically political statements. You know, they're poorly drafted laws that are very extreme that could potentially lead to women being charged with very serious crimes because they have an abortion. And I don't know if that's necessarily the policy that many Americans are going to want, including many Republicans are going to want. But those laws

will go into effect right away if Roe is overruled. If the court takes a more incremental approach, then it will depend on what the opinion says. If the court says, for example, that states are allowed to ban abortion at 12 weeks, then I imagine a lot of red states will enact 12 week abortion bans. But like the thing to bear in mind about the Supreme Court is that the Supreme Court makes rules of law that govern the entire country. They don't just govern one state. And so if the court says that Mississippi is allowed to enact a particular kind of law, that means that the other states are allowed to do so as well. When will we find out?

When will we get that opinion? My best guess is late June. The Supreme Court has a term. All of the decisions that it's going to hand down that term are typically handed down by the end of June. And that's when the most contentious cases are normally handed down because the justices are fighting amongst themselves until the last minute for those most contentious cases. So there's, you know, there's no way to know for sure. It could be next week. It could be next

month. But I think the most likely answer to your question is that it will be in late June. And in the meantime, we're also waiting for a federal court to rule on whether their law is constitutional or not. And if Texas can get away with that in the abortion context, there's no reason that any state can't get away with it in any other context at all. So, you know, I think it is likely that the Supreme Court will eventually strike down Texas's law. The problem is that the Supreme Court seems to be dragging its feet in that case. The last time we had you on the show was to talk about that with an unpopular Supreme Court that's seen as political, perhaps, is that maybe one day they drop a decision and some state refuses to comply. Then we've got a constitutional crisis. Did that come up at all today with this Mississippi abortion case?

It came up a lot. And the most pointed example is Justice Sotomayor. The sponsors of this bill, the House bill in Mississippi, said we're doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we're doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? And that is a remarkable statement from a sitting justice. I mean, the court's power comes from the illusion that it is above politics. It's because we believe that they are following rules and not just following their own preferences. And Sotomayor seemed to be suggesting, you know, I'm not sure that my court is still engaged in law. Like it's starting to look like my court is engaged in something

political. If people actually believe that it's all political, how will we survive? How will the court survive? And to hear that from a sitting justice, I mean, that's an extraordinary thing for a justice to say, because the implications of that statement is that the court should not have the power that it has. Ian Millhiser, he reports on the Supreme Court for Vox. You can read his work at vox.com. Our episode today was produced by Victoria Chamberlain with help from Hadi Mawagdi. I'm Sean Romsferm.

This is Today Explained. © transcript Emily Beynon Thank you.