--:-- Sean Rameswaram: Welcome to Today Explained, I'm Sean Rameswaram.
--:-- Sean Rameswaram: Last night, around 9 p.m., outside the Supreme Court of the United States sounded kind of like this. But by 11 p.m., it sounded more like this. But the curious thing is, the Supreme Court hadn't issued a controversial opinion. Instead, a historic one had leaked.
--:-- Sean Rameswaram: It's a lie. You don't care if women die. Roe, white, it's a lie. You don't care if women die. Roe, white, it's a lie.
--:-- Sean Rameswaram: On Today Explained, we're going to explore Justice Samuel Alito's draft opinion that would overturn Roe v. Wade and find out what this might mean for reproductive rights in the United States.
--:-- Sean Rameswaram: It's health care. Abortion. It's health care. Abortion. It's health care. Abortion.
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--:-- Sean Rameswaram: It's Today Explained. I'm Sean Rameswaram for I'm your Erin Carmon, senior correspondent at New York Magazine.
--:-- Erin Carmon: Erin, a lot of people are upset about this draft opinion from the Supreme Court. A lot of people are probably thrilled about it, too. Few have read it. Have you read this draft Alito opinion?
--:-- Erin Carmon: I have had the pleasure of reading all 68 pages of the draft Alito opinion.
--:-- Erin Carmon: And give us the headline. For anyone who's been paying attention to the conservative movement, the conservative legal movement's critiques of Roe v. Wade, There's going to be a lot that's familiar here.
--:-- Erin Carmon: It's pretty much every mainstream conservative, by which I mean it's a pretty extreme, catalog of critiques of Roe v. Wade.
--:-- Sean Rameswaram: Before we get into the arguments in this draft opinion, can we just dial it back and talk about where this case even came from? What is the case Alito wrote this draft opinion for?
--:-- Erin Carmon: For decades, conservatives in state legislatures have been passing laws that are kind of teeing up challenges to Roe v. Wade, testing how far the court is ready to go.
--:-- Erin Carmon: So this particular law came out of Mississippi. It banned abortion at 15 weeks, which is later than some of the laws that the court has considered in this very term, but was set up, I think, to try to chip away at the viability standard, which is what Roe and its successor, Planned Parenthood versus Casey, have said, that you cannot ban abortion before fetal viability, which is this sort of somewhat arbitrary line in which a fetus could hypothetically survive.
--:-- Sean Rameswaram: And so all the attempts to get rid of the fetal viability line have been unsuccessful. The court has not even agreed to hear them until this term, probably because Trump was able to appoint three Supreme Court justices.
--:-- Sean Rameswaram: And when Justice Ginsburg died and was replaced by Amy Coney Barrett, Mississippi actually rewrote its question that it asked the court to hear.
--:-- Erin Carmon: It had previously asked the court to consider just whether a 15-week line is reasonable. And in the sort of later stage, it filed a brief saying, are Roe v. Wade and Planned Parenthood versus Casey these precedents that have kept states from banning abortion? Are they constitutional? Should they be overruled?
--:-- Sean Rameswaram: So this went from being a case that would chip away further at roe v wade to a case that had the potential to overturn it that's exactly right and an oral argument in December Justice Briar actually called out Mississippi for doing this.
--:-- Sean Rameswaram: And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure. Only, quote, the most convincing justification can show that a later decision overruling, if that's what we did, was anything but a surrender to political pressures or new members.
--:-- Erin Carmon: But once they realized that they had a stronger conservative presence on the court, again, not just Anthony Kennedy, who had repeatedly declined to overturn Roe, being replaced by Brett Kavanaugh, but then Justice Ginsburg being replaced by Amy Coney Barrett.
--:-- Erin Carmon: It strengthened the sense that they could at least get to five and maybe even six. Did people watching the court expect this possibility that this could be the case that finally overturns Roe v. Wade after almost 50 years?
--:-- Sean Rameswaram: There was nothing extraordinary about this Mississippi law. What was extraordinary is that the court agreed to take it.
--:-- Erin Carmon: So once the court said we're going to reconsider something that we've repeatedly said you cannot do, the mere decision to take that, although it only takes four justices to take up a case, usually they won't take up a case they think they're going to lose because they don't want to strengthen the existing precedent that says abortion is legal.
--:-- Sean Rameswaram: Once the court says this is up for grabs anybody who paying attention can say something substantial is about to change here
--:-- Erin Carmon: And indeed when the oral argument was heard in December you could go back and read the summaries of it now and just see exactly what we read in the draft opinion, which is that five justices were openly hostile, not just to this idea of whether abortion should be legal at 15 weeks or not, but to the very underpinnings that for 49 years have governed American law.
--:-- Sean Rameswaram: You think about some of the most important cases, the most consequential cases in this court's history. There's a string of them where the cases overruled Preston, Brown v. Board, outlawed separate but equal.
--:-- Sean Rameswaram: And then you have John Roberts trying to theoretically find a middle line, but that would also involve throwing out Roe without saying the words, we're overturning Roe.
--:-- Erin Carmon: I'd like to focus on the 15-week ban because that's not a dramatic departure from viability. It is the standard that the vast majority of other countries have.
--:-- Sean Rameswaram: When you get to the viability standard, we share that standard with the People's Republic of China and North Korea.
--:-- Erin Carmon: Let's get a little more specific about what exactly Justice Alito writes in this draft opinion.
--:-- Erin Carmon: Sure. So in his draft, Alito says that abortion is not explicitly mentioned in the Constitution.
--:-- Erin Carmon: He says, and this is a quote, a right to abortion is not deeply rooted in the nation's history and traditions.
--:-- Sean Rameswaram: So that's a sort of fallback that if the word abortion is not in the Constitution, there's a sort of originalist argument saying it's not that whether it's deeply rooted in the nation's history and tradition.
--:-- Erin Carmon: He also says that due process claims under the 14th amendment are not legitimate now these are the same arguments the due process arguments it's called substantive due process have been used to underpin decisions involving striking down sodomy laws the right for couples and single people to use contraception the right to marry
--:-- Sean Rameswaram: But he says don't worry those opinions are totally safe because abortion is fundamentally different.
--:-- Erin Carmon: He says it destroys what those decisions called fetal life, what the law before us now describes as an unborn human being.
--:-- Sean Rameswaram: So he says it's different because of the separate status of the fetus, which we are now kind of swinging the pendulum towards valuing the status of the fetus over that of the pregnant person, although he would never use that phrase.
--:-- Sean Rameswaram: Why is he telling people not to worry about, you know, gay marriage or anti-sodomy laws?
--:-- Erin Carmon: Because they are right to worry about them.
--:-- Sean Rameswaram: I mean, of course, just because he says don't worry doesn't really mean anything.
--:-- Erin Carmon: Because these are all cases that come from the same legal reasoning, the same precedents building on each other.
--:-- Sean Rameswaram: They right to privacy, right to liberty, to some extent equality.
--:-- Sean Rameswaram: So these are ones also that the conservative movement, I mean, Alito dissented, for example, so did John Roberts in Obergefell, the decision that made same-sex marriage legal throughout the land.
--:-- Erin Carmon: So people would be right to worry about them.
--:-- Sean Rameswaram: Alito also wrote the opinion in Hobby Lobby, which tacitly accepted that the contraceptive forms used by millions of people are quote-unquote abortifacient, despite any evidence showing that.
--:-- Sean Rameswaram: The other thing that Alito does in this draft opinion is he responds to claims that you should not overturn Roe because of stare decisis, because of the principle that the court should move very, very slowly and try not to upend existing precedent because people rely on it and the law relies on it.
--:-- Erin Carmon: And it's just to, you know, there's all sorts of reasons why the court has developed that you should not overturn major precedents.
--:-- Sean Rameswaram: But he says the precedent does not compel unending adherence to Roe's abuse of judicial authority.
--:-- Sean Rameswaram: So basically he says that from the beginning, the court should not have made this decision.
--:-- Sean Rameswaram: This should return to the people's elected representatives.
--:-- Sean Rameswaram: So he would like to basically put up people's individual reproductive decision making to a vote of the majority.
--:-- Sean Rameswaram: He's saying this should be something that is legislated by Congress, not decided by the Supreme Court.
--:-- Sean Rameswaram: By Congress or by individual states.
--:-- Sean Rameswaram: He also says Roe v. Wade only further deepened divisions in this country.
--:-- Sean Rameswaram: It didn't solve anything.
--:-- Erin Carmon: Yes. And to do so, he also relies on some of the critiques from the early 1980s that were developed by Ruth Bader Ginsburg as a law professor first and then as a judge on the D.C. Circuit.
--:-- Sean Rameswaram: And, you know, to my mind, as the author of a Ginsburg biography, it's kind of a troll.
--:-- Sean Rameswaram: It's saying, look, even Ruth Bader Ginsburg didn't like Roe, but she didn't like Roe because she thought that it needed to have equality reasoning.
--:-- Sean Rameswaram: She thought that the government needed to fund abortions.
--:-- Sean Rameswaram: She thought it didn't go far enough and she didn't like the way it was written.
--:-- Sean Rameswaram: And so, you know, it's a bad faith argument.
--:-- Sean Rameswaram: But, you know, another way in which the Supreme Court has justified its decisions is to say this is a contentious issue, but we need to hand down some kind of stable settlement for the country.
--:-- Sean Rameswaram: And he says it never did that because many people still oppose abortion.
--:-- Sean Rameswaram: How many justices did Alito get to sign on to this draft opinion?
--:-- Erin Carmon: We don't exactly know the answer to that.
--:-- Sean Rameswaram: So Politico reported that it's unclear what Chief Justice John Roberts is doing or saying.
--:-- Sean Rameswaram: There's some conflicting reports out there about this.
--:-- Sean Rameswaram: He has the ability to either assign the opinion to himself if he's in the majority or to somebody else.
--:-- Sean Rameswaram: But if he's in the minority, the next most senior member of the conservatives, in this case it would have been the conservatives, and in almost every consequential case, Clarence Thomas, actually, Justice Thomas, would have been the one to assign it.
--:-- Erin Carmon: Now, Justice Thomas has written many times about thinking that not only is Roe unconstitutional, but the entire framework of substantive due process needs to be thrown out.
--:-- Sean Rameswaram: It doesn't exist in the 14th Amendment, is his opinion.
--:-- Sean Rameswaram: So he may have not been able to keep a majority together with his own opinions.
--:-- Sean Rameswaram: But it appears that what happened is that there's a majority, which again, on a court of nine, you need five justices.
--:-- Sean Rameswaram: And that at some point Alito was assigned to write a majority opinion
--:-- Sean Rameswaram: Now in the circulating of drafts which is apparently what we are seeing it has been known for justices to change their minds
--:-- Sean Rameswaram: So sometimes when an actual opinion is written and then a dissent is written, and this is really rare, but justices have talked about how in the writing, in the arguments, there's a sort of intellectual or legal or political, I would say, haggling where they say, well, I would sign on to your opinion if X, Y, and Z.
--:-- Sean Rameswaram: Or maybe, and this is, again, incredibly rare, somebody reads a dissent and says, actually, I'm so persuaded by the dissent that I'm going to change my vote.
--:-- Sean Rameswaram: Now, about a week before this leaked, the Wall Street Journal editorial board, which is very plugged in and has written before accurately about what Chief Justice John Roberts is thinking and trying to kind of keep him into the conservative fold.
--:-- Sean Rameswaram: They said, they claimed that Justice Roberts was trying to write a sort of separate opinion that would peel off one of the conservatives.
--:-- Sean Rameswaram: So if they indeed have five for Alito's opinion, they would just, one person could fold or one person could join a slightly less extreme opinion in John Roberts' direction.
--:-- Sean Rameswaram: And even if they all agreed that the Mississippi law could be upheld, maybe the ultimate opinion would be less sweeping.
--:-- Sean Rameswaram: Got it. So what we know at this point is that someone at the Supreme Court leaked this draft opinion authored by Justice Alito to Politico.
--:-- Sean Rameswaram: But this is by no means the final word from the Supreme Court.
--:-- Sean Rameswaram: We do not know if this is the final word.
--:-- Sean Rameswaram: More with the Wren Carmon from New York Magazine in a minute on Today Explained from Vox.
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--:-- Sean Rameswaram: We're back. Today explained with Erin Carmon, senior correspondent at New York Magazine.
--:-- Erin Carmon: Erin, if this opinion drops in a few weeks in the same shape the draft was in, what would happen next?
--:-- Erin Carmon: So about half of U.S. states already have laws on the books, either old laws or they've passed so-called trigger laws that are waiting for this exact moment that would make abortion either entirely legal or mostly legal.
--:-- Sean Rameswaram: What states are we talking about?
--:-- Erin Carmon: So Texas, for example, the Supreme Court allowed it to ban abortion at six weeks, which was certainly a preview of where we are in this draft opinion.
--:-- Sean Rameswaram: You've seen actually Texans moving heaven and earth and a substantial number of people being able to get abortions before six weeks, which is a testament to just the efforts that the clinics are doing to get them in.
--:-- Sean Rameswaram: And many people going to other states like Oklahoma, Louisiana, Alabama, New Mexico, Colorado.
--:-- Sean Rameswaram: So take Texas. They have a trigger ban on the books that says that if Roe v. Wade is overturned, all abortions are illegal.
--:-- Sean Rameswaram: So no longer would every individual who's been able to go before six weeks be able to go.
--:-- Sean Rameswaram: And of all the states that I just named that have been, again, with great difficulty able to accept Texas abortion patients, Oklahoma just passed a law.
--:-- Sean Rameswaram: I believe it's about to be signed by the governor, banning abortion at six weeks, but they could also just ban abortion wholesale.
--:-- Sean Rameswaram: Louisiana, definitely another trigger state. Alabama.
--:-- Sean Rameswaram: So in that entire region of the country, that basically leaves New Mexico and most likely Colorado, where abortion would still be legal.
--:-- Sean Rameswaram: As a Texan, if you could get an abortion fund to help you get on a plane, that might end up being your best bet.
--:-- Sean Rameswaram: Anyone who's been paying attention to the news for the past year is aware that there have already been these extremely severe conservative restrictions placed on abortion throughout the South.
--:-- Sean Rameswaram: How different is this, you know, trigger ban reality from the one that we're in right now?
--:-- Erin Carmon: Well, I think for folks living in those states, it's already been incredibly difficult to access abortion.
--:-- Sean Rameswaram: They are barred from using their Medicaid coverage.
--:-- Sean Rameswaram: They are forced to jump through hoops like 72-hour waiting periods, multiple visits.
--:-- Sean Rameswaram: They are forced to listen to inaccurate information.
--:-- Sean Rameswaram: Clinics have been closed down based on spurious regulations.
--:-- Sean Rameswaram: But I think that if this opinion holds, we are about to see that it could always get worse.
--:-- Sean Rameswaram: You know, I mentioned in Texas, six-week abortion ban has been in place.
--:-- Sean Rameswaram: Well, an 100 abortion ban is going to impact those patients a lot more even though some people don't know that they're pregnant before six weeks
--:-- Sean Rameswaram: Many people have still been able to get the abortion that they need before six weeks, a surprising number, I think.
--:-- Sean Rameswaram: And so you're also going to see clinic capacity in states where abortion is going to remain legal be stretched.
--:-- Sean Rameswaram: And so, you know, New Mexico is a place where a lot of people go, but it's mostly one clinic.
--:-- Sean Rameswaram: You're going to see an expansion of telemedicine, but many of these hostile states have already made telemedicine abortion illegal.
--:-- Sean Rameswaram: So you're also going to see something that researchers have found is happening in places like Texas already, which is that nonprofit organizations, including ones based overseas that are willing to push the boundaries of the law, are doing telemedicine sessions with abortion patients and mailing them pills.
--:-- Sean Rameswaram: Now, this is medically very safe as long as you have access to, you know, accurate information and the right medication.
--:-- Sean Rameswaram: But legally, we've already seen folks being prosecuted for taking matters into their own hands.
--:-- Sean Rameswaram: Again, it's safer than ever to, quote, self-manage your abortion.
--:-- Sean Rameswaram: The days of coat hangers do not need to be with us.
--:-- Sean Rameswaram: But prosecutors who have already found out about this with abortion being legal have gone after people for ending their pregnancies with pills.
--:-- Sean Rameswaram: So I think we're about to end up in a territory where the choice will be get on a plane if that's available to you, which we know is going to be really difficult for the most marginalized people.
--:-- Sean Rameswaram: Drive many, many, many hours if you can even get an appointment.
--:-- Sean Rameswaram: Take matters into your own hands, which not everyone is going to be comfortable with and it's not going to be medically indicated.
--:-- Sean Rameswaram: Or be forced to remain pregnant against your will.
--:-- Sean Rameswaram: Not long after Politico published this leaked opinion last night, people like Senator Bernie Sanders said, you know, now is the time to pass legislation.
--:-- Sean Rameswaram: And if we can't get 60 votes, we should end the filibuster and do it with 50.
--:-- Sean Rameswaram: How plausible is any legislation in this moment?
--:-- Erin Carmon: Well, in the current Congress, Joe Manchin has already made it clear that he doesn't support what's known as the Women's Health Protection Act, which would be the legislative solution to row falling.
--:-- Sean Rameswaram: So there's already a math problem there.
--:-- Sean Rameswaram: I mean, that was already brought to a vote.
--:-- Sean Rameswaram: So Bernie's saying let's do it with 50 votes, but they don't have 50 votes.
--:-- Sean Rameswaram: They don't have 50 votes unless somehow Susan Collins or Lisa Murkowski decides to cross the aisle.
--:-- Sean Rameswaram: So not only would there have to be a consensus to end the filibuster, they would also need more votes than they currently have.
--:-- Sean Rameswaram: And then, you know, a legislative solution would also potentially end up in the Supreme Court.
--:-- Sean Rameswaram: You know, and so for all Alito is saying now that this is something that should be left to the people's representatives, see what happens if this Supreme Court gets a nationwide abortion law that doesn't let Louisiana, Texas and Oklahoma ban abortion.
--:-- Sean Rameswaram: How will the 6-3 Supreme Court rule on that?
--:-- Sean Rameswaram: We may not even get to that point, but that's an open question.
--:-- Sean Rameswaram: So you're saying this isn't necessarily the end of abortion in the Supreme Court of the United States?
--:-- Erin Carmon: Absolutely not.
--:-- Sean Rameswaram: Some of the reporting that I'm doing now is about attempts in red states not only to make abortion illegal within their borders, but to try to police what their residents do when they leave the state.
--:-- Sean Rameswaram: So you had Connecticut this week pass legislation that seeks to protect their providers from lawsuits that might come from other states.
--:-- Sean Rameswaram: Because there is already this movement to say, it's not enough that I'm going to make abortion illegal within my borders.
--:-- Sean Rameswaram: I'm going to try to prevent any, for example, this was a state in which it was proposed, anybody from Missouri from leaving, to the extent that you could enforce it, to go to a state where abortion is legal.
--:-- Sean Rameswaram: and that's a pretty terrifying frontier because it's already really, really, really hard to leave the state that you live in for a medical procedure, you know, that should be very quick and simple and that is just a matter of changing your life.
--:-- Sean Rameswaram: It's certainly much more life-changing to have a child.
--:-- Sean Rameswaram: But to then the sort of next frontier that the Supreme Court may well be asked to consider if things move as they're looking right now would be can they try to stop people from leaving their states and going to a more friendly territory for an abortion.
--:-- Sean Rameswaram: And that's a pretty scary prospect.
--:-- Sean Rameswaram: I think that there's a tendency to point to the last election, the last justice to retire or die, the last legislative session.
--:-- Sean Rameswaram: This is actually something that has been, the wheels on this have been turning for generations.
--:-- Sean Rameswaram: this is a goal that the conservative legal movement has single-mindedly pursued and they have at times they have lost they've lost many times even if they've been able to chip away at abortion rights but they've been laser focused on sort of picking themselves back up and doing it and what their goal is is to make abortion illegal everywhere and so as shocking as it is as enormous of a change in people's lives as this would be, they've been pretty open that this is what they want to do for a really long time.
--:-- Sean Rameswaram: And there are certainly things that accelerated us to this point, but it's really been a long time coming.
--:-- Sean Rameswaram: On tomorrow's show, you're going to hear much more about the decades-long crusade to undo Roe versus Wade.
--:-- Sean Rameswaram: In fact, Noelle King will interview one of the leaders of that crusade.
--:-- Sean Rameswaram: You can read Arine Carmon in New York Magazine or at nymag.com.
--:-- Sean Rameswaram: Our show today was produced by Miles Bryan and Hadi Mawajdeh, fact-checked by Laura Bullard and Victoria Dominguez, engineered by Paul Mounsey, and edited by Matt Collette, and me, I'm Sean Rameswaram for him.
--:-- Sean Rameswaram: This is Today Explained. Thank you. Thank you.
