--:-- [Sound of protesters and celebration in the background]
--:-- Noelle King: It's Today Explained. I'm Noelle King. Sean Ramaswaram, my co-host, you're outside of the Supreme Court right now?
--:-- Sean Ramaswaram: I am. I am.
--:-- Noelle King: 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?
--:-- Sean Ramaswaram: 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.
--:-- Noelle King: 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.
--:-- [Sound of protesters and celebration in the background]
--:-- Noelle King: Coming up on today's show, how and why Roe was overturned.
--:-- [Sound of a commercial break]
--:-- Noelle King: Support for Today Explained comes from BetterHelp. Let me tell you a true story. Last weekend, I got an email from a listener who wanted to discuss their problems with me. And I said, look, I don't think that this is about me personally. At least I hope it's not. Why don't you try BetterHelp.com slash Explained? Absolute truth. As the largest online therapy provider in the world, BetterHelp can provide access to mental health professionals with a diverse variety of expertise. Find the one with BetterHelp. The one is not me, guys. Our listeners get 10% off their first month at BetterHelp.com slash explain. That's BetterHelp.com slash explained.
--:-- Noelle King: It's Today Explained. I'm Noelle King. Let's remember how we got to this place. 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.
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--:-- Noelle King: 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: I'm 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.
--:-- Irin Carmon: 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're not really willing to acknowledge it.
--:-- Irin Carmon: So suddenly everybody's cards are on the table because between when the case, when Mississippi 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 versus Casey in 1982.
--:-- Irin Carmon: 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.
--:-- Irin Carmon: Roe v. Wade and Planned Parenthood v. 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've poisoned the law.
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--:-- Noelle King: Support for Today Explained comes from Chime. Nobody likes fees and complicated banking, says Chime. And Chime gets that, says Chime. Chime is a financial technology company that says they understand that every dollar counts. So when you set up direct deposit through Chime, they say you get access to fee-free features such as free overdraft coverage, getting paid up to two days early with direct deposit, so much more.
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--:-- Noelle King: Chime feels like progress. Chime is a financial technology company, not a bank. Banking services and debit card provided by the Bancor Bank N.A. or Stride Bank N.A. Members FDIC. Spot me eligibility requirements and overdraft limits apply. Timing depends on submission of payment file. Fees apply at out-of-network ATMs. Bank ranking and number of ATMs according to U.S. News and World Report 2023. Chime checking account required.
--:-- Ian Millhiser: I'm a senior correspondent for Vox covering the Supreme Court. What a day this is. Yeah. So Roe v. Wade is dead. The right to an abortion, which has existed for half a century in the United States, no longer exists.
--:-- Ian Millhiser: Eighteen states currently have laws on the book that ban abortions either outright or extraordinarily early 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.
--:-- Ian Millhiser: So the landscape governing people's reproductive autonomy is now fundamentally different than it was just a few hours before we are recording this.
--:-- Ian Millhiser: Tell me briefly about the ruling. What stands out to you? Alito's final majority opinion does contain a significant allowed 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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, 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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 this is accurate as far as it goes, is it made abortion a subject that was settled regardless of what state legislatures do.
--:-- Ian Millhiser: 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, this Dobbs opinion, have been attacking abortion rights, they've also been attacking voting rights and like very comprehensively attacking voting rights.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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 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.
--:-- Ian Millhiser: 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 where 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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?
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: 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.
--:-- Noelle King: 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.
--:-- Noelle King: 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.
--:-- Noelle King: 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. There would potentially be a pro-abortion majority on the Supreme Court.
--:-- Noelle King: 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.
--:-- Noelle King: 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.
--:-- Noelle King: I'm Noelle King. It's Today Explained. Thank you.
--:-- Noelle King: Support for this show comes from Macy's. Fall is right around the corner, and that means layering season is too. Macy's Fall Fashion Guide can help you get a pulse on all the latest trends and must-haves.
--:-- Noelle King: Try a romantic look with a sheer top from INC. Or mix it up with some fun textures, like a faux fur bomber jacket from Karl Lagerfeld Paris. No matter your vibe, you can explore the Macy's Fall Fashion Guide and find the perfect look for you.
--:-- Noelle King: Shop in-store or online at Macy's.com.
