Roe v. Wade Overruled: The End of The Right to an Abortion

TOPICS DISCUSSED

  • The Supreme Court Overturns Roe vs. Wade

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EPISODE RESOURCES

Dobbs v. Jackson Women’s Health Organization

TRANSCRIPT

Beth [00:00:00] In total, the court produced 213 pages of writing about this decision. I read them all today, and what I took from this case alongside the New York gun case, is that we have here a court that is so deeply split on what they exist to do that it's hard for me to imagine what comes next. 

Sarah [00:00:30] This is Sarah Stewart Holland.  

Beth [00:00:32] And this is Beth Silvers.  

Sarah [00:00:33] Thank you for joining us for Pantsuit Politics.  

Beth [00:00:48] Hello, everyone. This is a special episode of Pantsuit Politics. It's hard to use the word special about it, but we felt it was important to show up in your podcast feed outside of our normal episodes because we process the news here. We think through what the headlines mean to us as individuals. And today we had one of the most significant developments in American life since we started the podcast. In our over seven years, we've confronted some very difficult subjects, and today is among the most difficult that we have confronted. As you probably know by now, the Supreme Court, in its opinion, Dobbs V. Jackson's Women's Health Organization, has unambiguously overturned Roe V. Wade, Planned Parenthood V. Casey, and eliminated any constitutional right to abortion services whatsoever. And so, Sarah, we're just sitting down together to try to walk through our understanding of these decisions and what they mean.  

Sarah [00:01:48] Even though most of us knew this was coming because of the leaked opinion that came out several weeks ago, it still took my breath away. I think every day that the Supreme Court came out and didn't release the decision, I told myself maybe Roberts convinced somebody on the edge to step back. Maybe they're going to do something different. And so when the decision came out and they took back an individual right granted by the Supreme Court and assured by the Constitution for the first time in our country's history. I felt it in every part of my body. I had an adrenaline rush for about 2 hours. I was shaky. I kept crying. It just felt like I'd been thrown off the edge of a cliff.  

Beth [00:02:53] And the guy shared your hope that the time that passed between the leak of the draft opinion from Alito and the time that this decision was released would change something. And I sort of expected with the Dobbs case, which involves a mississippi law that prohibits abortion after 15 weeks. I expected with this case something similar to my expectation in the case about New York's gun law that came out this week, too, that the court would chip away instead of wholly reject. And so my hope was that we would get the best case scenario to me, knowing this court was to get a decision that said Mississippi could prohibit abortion after 15 weeks, but that left some right to abortion in place, which is what Chief Justice Roberts advocates for in his concurring opinion. He concurs in the judgment only, not in the majority analysis. Instead, we have now five justices of the Supreme Court unapologetically, proudly comparing themselves to the court that decided Brown V. Board of Education unanimously saying that Roe V. Wade was a profound legal wrong and that they are undoing that profound legal wrong.  

Sarah [00:04:14] I think this court has shown itself to be unlike any other cards they have removed, any remaining belief for a significant proportion of the country. And I think even people who agree with this decision would be hard pressed to justify it based on anything other than the shifting politics of the court. The dissent at one point cites one of the Mississippi legislators who said, "Well, we knew the court changed and this was our chance." And that's where this decision comes from. The court changed. The court got new members, three of which from a twice impeached president who lost the popular vote. And that's where this decision came from. And that is why it is horrific and I think a moment in history where we will look back and say that was it, like, that was the moment that the Supreme Court, as we understood it, ceased to exist. Because they have shredded any idea of neutrality or legitimacy based on the institution itself and have revealed the body to be nothing more than one more political branch of our government. Only it's a political branch unaccountable to the people.  

[00:05:59] And so we have a political branch now telling us that we interpret through the Constitution, through history. Does it matter if it's a history written by men only? That doesn't matter. It doesn't matter that it's a history written by people who were slave owners. Doesn't matter. Because all we can do here, we're not judicial interpreters, we're historians. And I can't imagine that the Supreme Court can survive or move forward in any real way. I mean, it is abundantly clear from the three liberal justices dissent that the collegiality is gone. There is no respectful dissent here. It is dripping with disdain for what they see as a lack of judicial humility, for a lack of wisdom and for a lack of fundamental regard, much less respect for the institution of the Supreme Court.  

Beth [00:07:06] The disdain is mutual from the majority opinion as well toward the dissent. In total, the court produced 213 pages of writing about this decision. I read them all today, and what I took from this case alongside the New York gun case is that we have here a court that is so deeply split on what they exist to do that it's hard for me to imagine what comes next. And the dissenting justices tell us we should expect more of the same, that there is no reason to believe the majority of the court, which throughout this decision assures us that abortion is unique, that abortion is special, that abortion is unlike other individual rights.  

Sarah [00:07:53] Or some of them as the dissent goes out of its way to say over and over again.  

Beth [00:07:56] Yeah, the dissent tells us to expect more of the same. I think, Sarah, to your point about the legitimacy of the court, I try to be honest with myself as someone who loves Supreme Court jurisprudence, I just do. I love to read the cases. I love to think about who wrote which case and why, who wrote which opinion and why. Who was assigned the majority opinion in each case. I think all of it is so interesting. It has always depended and still does on certain fictions. Like everything in governance, things exist because we agree that they do. When you're in a society that governs itself, things exist because we agree that they do. And I think when you have a court of nine members where there is such difference about what-- they don't agree what they're supposed to do. So how are we as a people to see them as legitimate when they don't agree what the body exists to do when we have two decisions this week where the majority of the court tells us we are only here to ensure that the Constitution is read through the lens of the late 1700s and a minority that says we are here to ensure that the Constitution endures as a document with relevance based on society and the reality that we all live in. It's just a split that I don't think gets reconciled. And so I don't know what the court means at this point, because I don't think the members of the court know.  

Sarah [00:09:33] Well, I think there's two things I just want to say. The majority opinion goes out of its way to say this applies to abortion, but Clarence Thomas goes out of his way to say we should also overturn the right to contraception, same sex marriage and gay sex. So I just want to be abundantly clear. He says pretty explicitly that we should also overturn the constitutional right to those, meaning you could live in a state that criminalizes birth control and gay sex. So I just cannot emphasize that enough that this is the beginning. They also make no allowances or assurances that the federal government could not come in and make abortion illegal across the country. So if you live in a state and you're making yourself feel better by saying, "Well, my state will assure the right to abortion," if we lose the midterms, if we lose the presidency, that could change. That could change. And I think if you want to argue that your job is to interpret the Constitution through the lens of the late 1700s, then I would like to hire historians. Then we can field the court with historians, because that's not what you do. It's not what you're qualified to do. It's not what you studied. And I think that the idea again that we should in 2022 base all of our decision making on the thought processes of people who owned slaves, who believed women had no legal rights, who didn't have electricity, is so beyond my comprehension. I'm not saying it's irrelevant, but to argue that that is the only factor we should consider, its terrifying.  

Beth [00:11:39] We've gotten some questions today about the legal impact of this decision. So I think it might be helpful to just quickly say that the court here is analyzing what liberty means under the 14th Amendment, what the right to do process under the 14th Amendment carries with it. And the majority's long winded opinion can be simply summarized as this, "The text of the Constitution does not recognize a right to abortion. If we are to read something into the text that isn't there, we have to see that it is deeply rooted in historic tradition. We believe that a right to abortion is not deeply rooted in that tradition, and therefore we find that there is no such right. And that means that states can regulate abortion, and courts will only oversee that regulation under a rational basis review, which means that if the state has a reason to do it, the court will defer to the state. The state is entitled to a strong presumption that its regulation is good law."  

Sarah [00:12:46] Which basically means because we wanted to unless they say because we targeted this group, they'd have to say we passed this law to oppress this group in order for that not to be a reason.  

Beth [00:12:56] And the Court specifically rejects at the beginning of the opinion the idea that banning abortion is discriminatory to women. The court says it is not because throughout this opinion, Justice Alito tells us that this opinion is not based on any rights of a fetus, but that is belied by every other piece of the majority opinion. Because deciding that this isn't discriminatory towards women means that you are considering the rights of the fetus. And he says several times that we are looking at a clash of rights, the clash of rights between the fetus and the woman. He also says at one point that it must be that the fetus is entitled to the most fundamental human right, which is to exist. And so this is what really kind of sent me into orbit reading these opinions. Justice Kavanaugh writes a concurring opinion doing what Justice Kavanaugh does all the time, trying to say, "Hey, guys, it's not so bad. Everybody be cool. We've got our thinking caps on here. We're fine." And what Kavanaugh says is this opinion is neutral as to abortion, that the Constitution is neutral, it doesn't speak to it. And therefore the court must be neutral. But neutral is not available on this issue. Neutral is not available here. And Alito doesn't pretend to be neutral. It is clear that he believes that an unborn being has rights that are at least equivalent, if not more so, to the rights carried by the mother carrying that being. 

Sarah [00:14:39] Dissent has this great line where they say, "The point of all these examples is that when it comes to the rights, the court does not act neutrally when it leaves everything up to the states. Rather, the court acts neutrally when it protects the right against all comers." I mean, I don't think it will feel neutral to people to pass over a state line and have your individual freedoms restricted. It's not going to feel neutral. It doesn't feel neutral now. And so I think that the ways in which these six people twist themselves in knots to make themselves feel better about what they have done here, or completely ignore the pragmatic reality of what they have done here which I think is the most upsetting part to me, the suffering that will come from this decision is breathtaking. The line in the dissent that I cannot stop thinking about is pretty early and they say, "A state can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare." And I just think that's it, right? Because this is such a profound thing. Because it holds the ability a pregnancy to create life and to cause incredible harm and death. This is a fragile, powerful moment in an individual's life. And to give something that these people say all the time is clunky and bad in so many different ways, the state itself, the power to interfere in that fragile and powerful moment in a person's life is so, so, wrong.  

Beth [00:16:42] Another question that we've been receiving is what effect this will have. And Sarah was mentioning the case is Griswald about contraception, Obergefell about same sex marriage, Lawrence V. Texas, about the right to engage in private, consensual sexual behavior. Alito tells us, along with the majority, we aren't touching those opinions. And he tells us that over and over and over again. Promise.  

Sarah [00:17:06] Is it sort of like the way that they all stood in front of the Senate and met with senators and assured themselves that they believed in the precedent and they wouldn't touch that either?  

Beth [00:17:14] Well, that's exactly where I was going to go. That you read this opinion and it's just an inescapable conclusion that several of these justices lied in front of the country in their confirmation hearings. So it's difficult to trust their assurances on this point. And, again, the differentiator that Alito finds between abortion and those other intimate private matters is that abortion involves the life of a fetus and that is his differentiator. So I mention this because you made the point, Sarah, that the federal government could criminalize abortion at a federal level. I wonder, though, if this court would permit the federal government to find a right to abortion at the federal level? Because I think Alito is so clear about the fact that there is a person on the other side of this equation entitled to some rights. He disclaims that as the basis of the opinion, but it is the basis of the opinion. And so I'm not so sure that if Congress codified Roe, it would stand in front of the score.  

Sarah [00:18:22] Well, because they're not operating from any clear respect for precedent, it's what they think is right. That's what they're doing. It's what they think is right. And even with lifetime appointments, the Supreme Court will change. So I guess if somebody else gets in there and they think something different is right, then it'll change again. And if that somebody else gets in and they think it's right, it'll change again. So why we have stare decisis. Because there's no stability. There's no trust in the system. It feels fundamentally related to what's happening on the January 6th hearings. It feels like another attack on the rule of law that the laws apply until a person with enough power decides they don't anymore. And that's what this feels like. It feels like, well, we finally got the numbers on our side. And so the rules are going to change for millions and millions of people. And that creates that sense of instability, distrust, frustration, lawlessness. So my point on when we were discussing  gun control case on More to Say, when you attack the rule of law and act surprised by lawlessness and violence, I don't have a lot of words of comfort for you because I'm not sure what you thought was going to happen.  

Beth [00:19:48] I think what is particularly galling in this set of decisions, the majority and the concurrences, is the pretense that what is being done here is actually upholding the rule of law. Justice Thomas's concurrence has gotten a lot of attention today because, as you said, he expressly said we should overrule those cases that are decided under a concept of substantive due process. Meaning Justice Thomas thinks the 14th Amendment only entitles us to procedural due process, not to any expansion of what liberty actually means. And I just read that thinking about Justice Thomas himself. And the fact that we are learning that his wife has been abusive of the power and authority that he has in her political engagement. And I think we're going to hear a lot more about that, that he has a view of executive power that is extremely expansive. And so I wonder if he looks at his colleague, Justice Gorsuch, and thinks, wow, the Senate really overreached and abused the rule of law by holding open this seat for a Republican president to appoint you. I think that's the trouble. There is no aspect of this court, including the vast majority of its personnel, that is uncontroversial now. And for this court to repeatedly tell us, well, we should definitely overrule our predecessors if we think they got it wrong, it leaves us without a cornerstone in our government that is anything other than a naked power struggle. And I don't think that we are a democratic republic anymore if we are left without a cornerstone that is nothing more than a naked power struggle.   

Sarah [00:21:51] Yeah. Because there's no course of action if the federal government prohibits and criminalizes abortion. The sole remaining course of action is amending the Constitution because we have a nakedly political branch that has no political accountability. And that is harrowing.  

Beth [00:22:20] It's especially harrowing when you think about the fact that we have lost faith in the political accountability of the people who this court says are to be so responsive to the populace. That we have a country that is deeply divided over whether we should have an Electoral College anymore. That the majority of this court exists because of appointment by a president who lost the popular vote and was impeached twice and is currently being demonstrated to have no respect for the rule of law whatsoever through the January 6th hearings. That so many people feel that their congressional races aren't even close to competitive by design. That here in Kentucky, where we have a trigger law that ensures that, as of this moment, all abortion is illegal  including in cases of rape and incest, with the only exception being to save the life of the mother. And I very seriously doubt we'd all agree on what that exception means and how it should be applied and by whom that should be decided. Here in Kentucky, we have just seen a districting process that is grotesque. It is so nakedly partisan as to be grotesque. And it was a redistricting process targeted mostly at women legislators. So it's just difficult to have confidence in our democratic processes right now. And that is another layer to reading Alito's opinion that makes you think you're not living in the real world or even trying to.  

Sarah [00:23:49] But the real world is where the rest of us have to live. In the fallout from this decision. And our new book is called Now What? Now What? There are a lot of people who have dedicated their lives to this work. We're not starting at zero there are organizations who have been serving women and trying to save their lives and maintain their right to an abortion for decades. And so I think looking to those organizations to continue to organize is a really, really, important thing all of us can do right now. To support planned parenthood, to support [Inaudible] to support the organizations on the ground in your state, the clinics who had to close their doors today, reach out to them, say, how can I help? What can I do? I think that's an important and essential first step.  

Beth [00:24:52] That first step feels unsatisfying. I know. I know it always feels unsatisfying to hear while you need to vote, you need to activate, you need to get out there and participate. I hope that seeing the passage of bipartisan gun reform gives us some comfort that it matters. It has taken a very long time to get there way too long. But the country has said pretty clearly for a long time, we do not believe that the framers could have even contemplated the damage that modern weapons can create, let alone would have found that to be a sacred and inviolable right. And we are getting some movement on that. It is not enough movement, in my personal opinion, but it is something. The process is slow. It is cumbersome, but it manages to work itself out. I've been thinking a lot today about what happened to the membership of Congress after Justice Clarence Thomas was confirmed and the number of women who said this is enough and we will have greater representation in the United States Congress from now on. That wasn't enough either, but it was meaningful progress and we can build on that now. I hope that we can view this as not just an ending, but as a beginning as well of a new era when women's participation in politics makes it inconceivable that we never had the Equal Rights Amendment. Like, we must pass the Equal Rights Amendment in response to this. Just ratify it. It must be done. Especially as you read the language of Justice Thomas's concurrence. It must be done. So that activation is not immediate but it is impactful. It is important. It is necessary.  

Sarah [00:26:54] Since this newly constituted and restless court has asked us all to spend so much time with the words the Framers. I keep thinking about we hold these truths to be self-evident. It's so beautiful. Sounds like a hymn. And I think at this moment, I just realized that they're so weirdly self-evident to all of us. It's such a promise, but it's such hard, impossible work. I think it's tempting to think that once those truth are assured to us, that they are permanent. And I think the hard and difficult lesson we're all learning today is that even in the United States of America, they are not. Democracy is impossibly hard and also our best option. And so the work is to continue to campaign and vote and persuade and influence and tell your stories. And to keep trying to make the truths that seem so obvious and self-evident to some of us available to the rest of us.  

Beth [00:28:39] And that work exists to do outside of the civic sphere as well. I've thought all day about how I was desperately ill during my pregnancies and had I a job other than a professional one with a door that I could close to a private office, or I could throw up in my trashcan in private, I would have been fired in almost any other employment context because I was so sick. It really diminished my ability to work. And so in the private sector, there are many, many spaces for us to stand up and say we are going to help each other through this. And it's encouraging to see corporate action already falling into place to help us through this. My favorite part of the dissent speaks to how  individual action is important. The dissent is praising the plurality in Planned Parenthood V. Casey, justices O'Connor, Kennedy and Souter in saying they were judges of wisdom. They would not have won any contest for the kind of ideological purity some court watchers want justices to deliver. But if there were awards for justices who left this court better than they found it, and who for that reason left this country better and the rule of law stronger, sign those justices up. And I just think that's a really good call to action for us. Can we be people who left this country better than we found it and the rule of law stronger? And between the January 6th hearings and these decisions, there is a lot of room for us to answer that call.  

Sarah [00:30:13] And it's always important to remember that answering that call will just involve a lot of heartbreak. There is no way around the heartbreak of today. And there will be more heartbreak to come. I have no doubt about that. As I sat in my car when I first got the news of the decision, Angels from Montgomery was playing. And there's that great moment in the song where Bonnie Raitt sings "To believe in this livin is just a hard way to go." And I thought, well, what a song for this moment. It's just a hard way to go.  

[00:30:55]   

Sarah [00:30:57]  And I wish there was an easier way. I wish there was an easier way for myself, for all the women this will affect, for my children, for Beth's daughters. And I have to feel that heartbreak. And we all have to feel that heartbreak. That's just part of the process. We just can't let the heartbreak turn to despair. Because despair isolates us and separates us and tells us there's nothing we can do for each other now or in the future. And that is not true. That is not true.  

Beth [00:31:39] Yeah. I don't really know what it is that we're doing here as humans or what rules should govern, what it is that we're doing here. I just know that in the course of my life, I am better off the more I respect other people's knowledge and understanding of what a good life looks like for them, instead of trying to impose my view of what a good life looks like on the people around me. That's why it strikes me as so sad that today we had a right erased and that there is celebration of the erasure of that right. That feels really hard to me that there is celebration of a decision that will be applied in context, that the celebrators have never confronted or contemplated. That land's really hard for me. And I have a lot of anger in me right now at these justices because I believe the justices have contemplated those circumstances and decided that it's worth it anyway. And so I'm pretty mad about that. But I have to remember that for me, inviting hatred of the justices is just deciding to swallow a poison pill that will only hurt me.  

[00:33:05] I have to remember that I believe that people should serve this country and be safe in their role serving the country, even when they're doing abhorrent things. And that the justices, as angry as I feel toward them, represent a lot of my fellow Americans who I have to figure out a way forward with now. And so I'm trying to keep a measure of softness, even though I feel pretty hardened in my reaction to this opinion. It's a tough place to be. And I don't think that I've figured out how to be there wholly. But I'm trying to stay connected with myself and what I know about what we're doing here, because that's the only way I know how to kind of grapple with something that so significantly shifts everything I learned in law school and most of what I have come to believe about what liberty stands for..  

Sarah [00:34:02] I feel no softness towards the conservative majority. And I think we have to face the reality that we are past the point in this country where we're expressing concerns for our institutions. The stress on our institutions portion of the conversation is over. Our institutions are crumbling under the weight of change, the rapidity of change, the complexity of change facing our country and the processes and the systems and the people we have put in positions of power to deal with that change are not up for the task. They are not up for the task. And I think this will get harder before it gets easier. And so I am not hardened in a way that creates fragility. I don't want that. I don't want to be hard in a way that makes me easy to break. And I think violence is that bad. I think violence, political or otherwise, paradoxically creates fragility. But I am hardened in a way that creates strength. I am hardened in a way that creates adaptability. I am hardened in a way that releases that grip on the past, the comfort and the control of trying to get back to the way things were. I'm done with that. We're not going back to the way things were. We're going forward. It's going to take a lot of strength because we're going to have to build new things and new ways of being. I don't know what that looks like. I don't know if that looks like a constitutional convention. I don't know if that looks like splitting apart and no longer being the United States of America. I just know that I want to be strong and ready for the challenge.  

Beth [00:36:35] We could talk for 24 hours and not reach every aspect of what happened today and where it will take us next. So we're going to conclude here. Showing up right after digesting these opinions, just to say we know they are landing in lots of different ways for lots of different people, for lots of different reasons. And you aren't alone. And we will be here with you again next week. We are grateful for all of you. The tasks ahead for this republic, if we can keep it, are going to require us to work together. And we know that those of you showing up are doing that every day, that you are working hard and thinking deeply and paying attention. And we find that enormously encouraging. So thank you for being part of this conversation in so many different forms. And everyone, take care of yourselves this weekend.  

[00:37:42] Pantsuit Politics is produced by Studio D Podcast Production. Alise Napp is our managing director.  

Sarah [00:37:47] Maggie Penton is our community engagement manager. Dante Lima is the composer and performer of our theme music.  

Beth [00:37:53] Our show is listener-supported. Special thanks to our executive producers.  

Executive Producers (Read their own names) [00:37:58] Martha Bronitsky. Ali Edwards. Janice Eliott. Sarah Greenup. Julie Haller. Helen Handley. Tiffany Hasler. Emily Holladay. Katie Johnson. Katina Zugenalis Kasling. Barry Kaufman, Molly Kohrs.   

[00:38:15] The Kriebs. Lauri LaDow. Lilly McClure. Emily Neesley. The Pentons. Tawni Peterson. Tracey Puthoff. Sarah Ralph. Jeremy Sequoia. Katie Stigers. Karin True. Onica Ulveling. Nick and Alysa Villeli. Katherine Vollmer. Amy Whited.  

Beth [00:38:32] Jeff Davis. Melinda Johnston. Ashley Thompson. Michelle Wood. Joshua Allen. Morgan McHugh. Nichole Berklas. Paula Bremer and Tim Miller.  

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