Two weeks ago, Politico obtained a leaked draft of the Supreme Court decision to overturn Roe v. Wade, the nearly 50-year-old ruling that acknowledged the constitutional right to abortion. Although this is the most egregious attack on reproductive rights, it only follows the anti-abortion momentum that has been building for years around the country. This week on Intercepted, Intercept investigative reporter Jordan Smith discusses the aggressive, irrational, and dangerous Supreme Court decision to overturn Roe v. Wade. Smith is joined by Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at New York University and co-host of “Strict Scrutiny,” a podcast about the Supreme Court. Smith and Murray talk through the draft decision, its implications, and the future of reproductive rights.
Jordan Smith: I was a 19-year-old sophomore at the University of Maryland when I found out I was pregnant. And I freaked out. I did not want to be pregnant.
I knew I needed an abortion, but I didn’t have the money.
I gathered up a bunch of change and called my mom from a pay phone. And she didn’t miss a beat when I told her I was pregnant. “No, you’re not,” she said — and sent me the money that day.
It was 1991, nearly 20 years after the Roe v. Wade decision changed abortion rights in the U.S. For me, once I had the money, the access was easy. I went on with my life, and I have never regretted my decision. Abortion was the reason I was able to stay in school, go on to graduate school, and develop my career.
But while I had a relatively easy time exercising the right conferred by Roe, that is far from a universal experience.
For many, Roe was always just a promise on paper. And for decades, those against reproductive freedom have worked with their conservative, elected allies to make abortion all but inaccessible for millions of people.
I’ve watched this happen over the nearly two decades that I’ve covered assaults on reproductive health access. The burden has fallen disproportionately on people of color, those with low incomes, those living in more rural areas of the country, young people, immigrants, and LGBTQ+ people.
And now… the biggest attack on abortions rights is on the horizon.
[Intercepted theme music.]
Jeremy Scahill: This is Intercepted.
JS: I’m Jordan Smith, a senior reporter with The Intercept.
Two weeks ago, Politico obtained a leaked draft of the Supreme Court’s decision to overturn Roe v. Wade.
The opinion, written by Justice Samuel Alito, is irrational, incredibly aggressive, and extremely dangerous for the future of reproductive freedom. Right now, that future looks bleak.
So joining me today to talk through the draft decision, its implications, and beyond is Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at New York University, and a co-host of one of my favorite podcasts about the Supreme Court, Strict Scrutiny.
Professor Murray, thank you for being here with us.
Professor Melissa Murray: Thanks for having me.
JS: I’ve been reporting on reproductive health access and abortion rights since about 2003, mostly in Texas. And so I’ve seen up close the relatively long and certainly consequential trajectory that puts us in this moment. And I think that’s why I’m not surprised that we’re here.
But, I was, nonetheless shocked by the leaked Alito opinion. And not necessarily the bottom line — [laughs] which was what I expected. But like, the shrieking, aggressive tone I found really unnerving, as well as the way in which he deploys some kind of wobbly facts and logic to get to his bottom line.
And then, beyond that, I was pretty startled by the breadth of what he’s laying out here — in other words, that this isn’t just about abortion.
So before we get into the thick of all that, I think it’s probably worth backing up for just a second to talk about the case that has brought us to this moment, Dobbs v. Jackson Women’s Health Organization. So can you maybe just tell us the basics about the Dobbs case and how we’ve wound up where we are?
MM: Sure. So Dobbs is a challenge to Mississippi HB 1510, which is a law that prohibits abortion at 15 weeks of gestation, well in advance of what is known as viability, which is a marker at which the fetus can survive outside of the womb, and typically it is marked at around 23 or 24 weeks of pregnancy. So a 15-week ban is very much ahead of where the viability line is.
Viability is really important in the court’s abortion jurisprudence because, despite the limitations and restrictions of a court has allowed on abortion rights, it has remained steadfast that Roe v. Wade, that 1973 opinion that announced the right of a woman in consultation with her physician to choose an abortion, they’ve been very steadfast that the right to an abortion includes the right to an abortion before viability without any bans. So it prevents the state from banning abortion before viability. And so that’s critically important in why viability is such an important marker.
Obviously a law that restricts abortion, which bans abortion in advance of viability, runs afoul of Roe v. Wade. But interestingly, when Mississippi was defending its law, it was initially enjoined by the district court in a really amazing opinion by Judge Carlton Reeves, who is a district court judge in the Southern District of Mississippi. In that opinion, he enjoined the law on the grounds that it flagrantly violates existing Supreme Court precedent.
When Mississippi challenged that all the way to the Supreme Court — they lost at every lower court because the law is plainly unconstitutional — when they filed their appeal at the Supreme Court, at first, their request of the court was relatively modest. So this was in 2019. And they just asked the court to rethink whether viability was a salient marker in the court’s jurisprudence, if that continued to be the case. And they emphasized that this is not a big, monumental, cataclysmic kind of case; it was not going to completely reorient abortion jurisprudence. They were asking for some guidance on a very specific question — a tinkering at the edges kind of question.
Fast forward to 2020. In September of 2020, by the time the court has announced that it’s going to take up this challenge, Ruth Bader Ginsburg has passed away, and she has been replaced on the Supreme Court by Amy Coney Barrett, a justice, who I think it’s fair to say, was genetically modified in a lab for this moment. [Laughs.]
MM: She’s a staunch conservative, raised in the conservative legal movement. She, in some of her writings, and indeed, some of her personal dealings has expressed some skepticism of abortion rights, I think is a generous way to put it. And she’s now seated where Ruth Bader Ginsburg once sat, and Ginsburg, of course, was one of the most steadfast and stalwart defenders of abortion rights on the court.
So it’s a very different court, we’ve gone from a 5-4 majority to a 6-3 conservative supermajority. And not surprisingly, that change in personnel also prompts a change in Mississippi’s posture in this litigation. So rather than focusing on a kind of incremental change, or a very minor question, when Mississippi finally filed its initial briefs before the court, in this case, in the fall of 2021, its requests are much more assertive. So instead of telling the court like: This is really modest kind of thing, tell us a little bit more about viability, they just sort of go balls to the wall and say: We want you to overturn Roe v. Wade and Planned Parenthood v. Casey, the two pillars of the courts, abortion jurisprudence.
And so that’s where we found ourselves in December of 2021, when the court took up oral arguments in this case, and I think was very clear from oral arguments that there were five justices who were skeptical, if not outright hostile, to the prospect of retaining Roe v. Wade as stare decisis, that principle of the Anglo-American legal tradition that says that settled decisions are to be followed, regardless of the personal predispositions of the judges reviewing those precedents. Despite stare decisis, it seemed like there were five justices on the court who were ready and are able to overrule Roe v. Wade. So that’s where we are.
JS: Right. Right. Burn it down. [Laughs.] Which, of course, brings us to Alito’s opinion. When I read it again, not surprised but kind of shocked because I was like: Bonkers! And deeply troubled, right?
So, I’m just curious: What was your initial reaction when you saw it?
MM: So I wasn’t shocked that there was an opinion overruling Roe v. Wade. I was actually shocked that Amy Coney Barrett hadn’t written it.
JS: Right. [Laughs.] Because like: Woman on the court! This is why you’re here.
MM: Well, it’s not me saying this. Back in 2017, when they were sort of gearing up for a wave of nominations, including the anticipated retirement of Justice Kennedy, Ramesh Ponnuru, who is a conservative pundit, argued that President Trump — and this was in an op-ed that was published widely — President Trump should select Amy Coney Barrett, and one of the reasons he identified for her selection was that it would look really, really terrible for a very conservative court composed of four white men and one Black man to overrule Roe v. Wade. It’d be much better if a woman could put her feminine touch on it.
So that surprised me. It surprised me that given the moment, given this opportunity to overrule this long embattled precedent, that she was not the one to sort of finish the job. But Justice Alito is a worthy second runner-up to this. [Laughs.]
MM: He’s long expressed skepticism — if not hostility — for abortion rights. He’s always been very clear about it. And so, if it wasn’t Justice Barrett, then Justice Alito was a pretty sure second, and he did not disappoint.
JS: No! No, he did not, did he? No, he did not.
MM: He did not.
JS: So let’s talk a little about what he has in here. And one of the obvious things is that he writes that the word “abortion” isn’t in the constitution. So the right doesn’t exist.
MM: You know, what also is not in the Constitution?
JS: Yes, that’s true. That’s true. Yeah. Yeah. We’re not there, either. [Laughs.]
MM: OK. So it all checks out. All tracks.
JS: It does. It does, doesn’t it? But, well, OK, fine, true: abortion, not in there. But the read he has seems to just elide completely over the protections guaranteed by the Ninth Amendment, right? And then articulated in the 14th Amendment, which we know is a Reconstruction-era addition, right, meant to kind of ensure some individual liberty, including this right to decide about family things like weather, and with whom to have a family. So I’m curious what you think of his analysis. And also, you’ve spoken really great about this. And I’m wondering if you could just sort of unpack the basis for and kind of the promise of the 14th amendment?
So let me first explain his logic, and then I’ll explain why I think it’s incorrect and incoherent.
MM: So he argues that there are two major problems with a right to abortion. And the first is that such a right is not specifically enumerated in the text of the Constitution as opposed to protections like freedom of speech or religious freedom, all of which he says, are very specifically enumerated in the Constitution. And that’s kind of true, but kind of not. There are aspects of the First Amendment that we have come to accept as part of the First Amendment’s guarantees that are not specifically enumerated; they’re sort of implied from what is enumerated. So you know, that too, is, I think, a little bonkers.
But he sort of sets up this juxtaposition between these unenumerated and therefore problematic rights versus text-based rights. And he talks specifically about these Bill of Rights amendments. And of course, anyone who’s seen Schoolhouse Rock! and has been sentient for much of middle school civics knows that the Bill of Rights is a series of 10 amendments. Justice Alito focuses only on eight and he needs to because he stopped short, as you say, of the Ninth Amendment, which says that, just because we have specifically enumerated certain rights here does not suggest or disparage the prospect of additional rights that might be implied and are not specifically enumerated.
So the Ninth Amendment kind of gives waste to his argument, because the Ninth Amendment specifically contemplates the prospect of rights that are not enumerated, but are nonetheless protected. And he doesn’t address that. Nor could he, I think it’s a real problem with his analysis. But it seems like the framers of the Constitution left a kind of failsafe there, like a safeguard, if you will, for situations like this, where people are saying, well: Here’s what’s listed, that’s all there is. It’s like: No, that’s not all there is. There’s this other stuff that can be implied from the premise of these existing amendments and also the sort of spirit of the Constitution.
That brings us to the 14th Amendment and the Reconstruction amendments more generally. As you suggest, the 14th Amendment is part of this trio of constitutional amendments that are passed in the wake of the American Civil War, and they’re passed for a specific purpose. They are passed to abolish the institution of slavery, that’s the 13th Amendment. They are passed to enfranchise African American men, so to make newly freed, formerly enslaved persons, members of the body politic and the political community. That’s the 15th Amendment.
Then there is also these provisions that are intended to specifically repudiate certain aspects of slavery, including the fact that enslaved persons had no right to marry, they had no right to their families, to any kind of family integrity, their children could be sold away from them. And perhaps most importantly, they had no control over their bodies, whether it was for labor or for sexual labor, right? Their bodies could be conscripted in any way their owners found permissible and useful.
And so this trio of amendments was intended to repudiate all of this, to formally abolish the institution, to enfranchise African-American men and to repudiate these aspects of slavery. And I’m emphasizing this because the second part of Justice Alito is argument as to why the abortion right is problematic, it’s not simply that it is unenumerated and not found in the text of the Constitution. It is also that it is not deeply rooted in the traditions of our country and in the history of our country. And as evidence of that, he cites the fact that there have been criminal prohibitions on abortion, which is true but there also have been lots of prohibitions on lots of things that I think we now would say should not have been prohibited.
And, again, I come back to this idea that the Reconstruction amendments were intended to repudiate the vestiges of slavery, an institution that was so deeply embedded in the foundations of the country that you actually needed a cataclysmic event like amending the Constitution to root it out.
So I’m saying all of this to explain: I don’t think he is right to say that this is an unenumerated rights. I think this is a right that very much is part of this idea of liberty that is specifically stated in the 14th Amendment. The 14th Amendment denies the state the opportunity to deprive individuals of life, liberty, and property without due process of law. This idea of liberty was understood capaciously by the drafters of the 14th Amendment, to include these things like family integrity, the right to marry, the right to your children, and again, the right to your body, your labor, your wages, all of these things.
And so it is kind of specifically enumerated, it’s just he doesn’t have the same vision of liberty that I think the ratifiers of the 14th Amendment did. And it is deeply rooted in our history, because at least since 1868, our understanding of what liberty meant was this opportunity to control your body, to have access to your family, access to the right to marry, all of these things. And so, I think understanding this history of the 14th Amendment, and my NYU colleague Peggy Cooper Davis has written a magnificent book “Neglected Stories: The Constitution and Family Values” which is being re-released. And it lays all of this out. And it’s all there, hiding in plain sight. It’s in the legislative history behind these amendments. And he completely ignores it, and instead offers in this crabbed and narrow understanding of the 14th amendment and its guarantee of liberty. And it has to be crabbed. It has to be narrowed. Because otherwise I don’t think you could rightly come to the conclusion that the Constitution strips women of the opportunity to control their reproductive capacities.
JS: Well said. And I think that actually brings me the next point, which, kind of ironically, Alito then pedals this notion that abortion has been a tool to oppress Black people, and to essentially erase the Black race. And he writes “Some such supporters have been motivated by a desire to suppress the size of the African American population,” which is obviously certainly a nod to Clarence Thomas, who wrote that 2019 concurring opinion that linked abortion to eugenics, and obviously, that’s troubling on multiple levels, not least of which is that an individual person terminating their own pregnancy is not eugenics.
And you wrote this awesome Harvard Law Review article about the Thomas concurrence, and about how it’s ahistorical and really kind of conflates some things. But but you also wrote in there, that instead of surfacing race, as a means of promoting greater autonomy and access to abortion, that he uses it as a way to sort of destabilize abortion rights. And I think that’s a really great point, and kind of piggybacks on what you were just saying. And I was hoping you could just sort of unpack that a little bit more, because I think it’s useful to talk about what Thomas gets wrong about how race and abortion interact, and what Alito seems to adopt, I guess, and try to use to his advantage, but also how we should think about the intersection of abortion and race. So take whatever piece of that you would like.
MM: I’m going to take all of it.
MM: There are three different strands that I’m going to weave together. So stay with me, right?
JS: All right.
MM: Let me explain this opinion, then, let me sort of talk about why I think Justice Thomas really misses the thread — quelle surprise! And then finally, I want to talk about why is that footnote, footnote 41, of this opinion included? Because it is entirely gratuitous, if you are overruling the right to an abortion based solely on the fact that it is atextual and ahistorical, right?
MM: So you don’t need this. And so the real question is, why is it there if we don’t need it, and I want to hold on to that.
So, in 2019, as you say, there’s this case on the shadow docket, recall the shadow docket, it’s gotten a lot of press this year. It’s called Fox v. Planned Parenthood of Indiana and Kentucky and it’s a challenge to two laws: One is a law that requires the funereal disposal of fetal remains. The other is what is known as a reason ban or a trait-selection law that prohibits abortion if it is undertaken for purposes of race or sex selection or because of the diagnosis of a fetal anomaly.
The court took up the funereal disposals law and they upheld it. But they denied certiorari on the trait selection law, and Justice Thomas concurred and this was unusual because typically on the shadow docket decisions, there’s just a sort of summary opinion of the court and you don’t really understand the reasoning why they did what they did, but Justice Thomas decided to concur here, and he concurred specifically to agree that yes, we don’t have to take this now, but the time is coming, when we will not be able to avoid this question of whether states can take modest steps to prevent abortion from fulfilling its quote-unquote eugenic potential.
And that could have been the end of it, it would have been very weird. But it could have been the end of it.
MM: But he decided to go further, and going further, he crafts this quite selective history in which he graphs the birth control movements history, and Margaret Sanger’s history with the eugenics movement to the history of abortion.
MM: And they are two very distinct histories, to be sure. Margaret Sanger, who was the mother of the modern birth control movement, was not necessarily in favor of abortion; she actually had deep antipathy for what she called surgical interventions and thought that none of this would be necessary if women could just have access to contraception. So, the shades of arguments we hear today.
But in the early 1900s, when she was sort of really mounting the birth control movement and this idea of voluntary motherhood, she was really trying to secure the support of these first-wave feminists who were really skeptical of Margaret Sanger because Margaret Sanger wasn’t just saying, like, you need to be a mother on your own terms. She was also arguing for birth control as a means of women’s sexual pleasure — like, sex can be recreational, not just procreation. And the feminists were like: OK, that’s a bridge too far for us. These first-wave feminists were not with her. They didn’t support her. And she got some overtures from the eugenics movement, which is really sort of picking up and really became thick and quite influential in the United States in the 1920s.
And they had this imprimatur of science. Eugenics was a science. Harvard University had eugenisis on the faculty of the University of Virginia where I graduated from, also was a hotbed of eugenics theory and quote-unquote science. And so it was an actual movement with real influence and heft and they were making overtures to her and she accepted them.
Now, to be very clear, the eugenics movement is deeply, deeply racist, right?
MM: Maybe Margaret Sanger is deeply, deeply racist. But not in the ways, I think, Justice Thomas thinks. Justice Thomas argues that her work with the eugenicist is about deracination; that they have purposely geared up to site birth control clinics in African-American communities for the purpose of stamping out Black reproduction and limiting Black political participation. That’s not actually true.
Margaret Sanger cites birth controls clinics in Harlem and in other African-American neighborhoods at the behest of the Black community. She’s working with W.E.B. Dubois, who believes that as the Great Migration is beginning and African Americans are leaving the South, and leaving the vestiges of slavery and tenant farming for the North and industry, they can’t have the big families that they once had, it’s going to be a burden on them. And so he wants them to have access to family planning. He wants them to plan for smaller families. And he works with Margaret Sanger to introduce family planning to the Black community. So this isn’t something that’s foisted upon Black people; at least some parts of the Black community are viewing this as a way to shore up the economic fortunes and long-term prospects of this community that has been quite beleaguered.That’s not enough for Justice Thomas, though. He never, ever mentioned this. He just talks about the siting of these birth control clinics in Harlem.
The other thing that’s worth noting, though, about the racial dynamics of this moment, is that eugenesists are, as I say, deeply racist, but not in the way you would expect. They are interested in eugenics for the purpose of purifying and optimizing the white race.
MM: And so their interests and their attention isn’t necessarily focused on Black people, or even non-white people. It’s really focused on maintaining whiteness.
And so, for example, in 1927, the Supreme Court takes up a case called Buck v. Bell, which Justice Thomas does reference. And it is a case in which the State of Virginia has sterilized a young white woman who is poor, who is believed to be cognitively deficient, and who has already had a child out of wedlock. So she’s basically failed to perform whiteness in three different ways. She’s poor, she’s under-educated, she’s pregnant outside of marriage. And the court, in a decision that is infamous, says, “three generations of imbeciles are enough” and permits her sterilization. That’s interesting because eugenicists didn’t really put Black people in these colonies to be sterilized; they weren’t interested in feeble-minded people of other races. They were literally interested in making sure that white people who had the wrong genes didn’t transmit those wrong genes to future white populations, so they’re about optimizing whiteness by making sure only the best of those that race actually reproduce. And so their principal technology of reproductive control is sterilization. And it’s primarily directed at white women, poor white women.
MM: So Justice Thomas invokes this history of eugenics, but kind of misses the plot. They’re not concerned about abortion.
MM: In fact, to the extent they are interested in abortion, they want to stop abortion because white women are contracepting and terminating pregnancies in order to keep their families a manageable size. And instead, what the eugenicists want is for native-born white women to have more children, so that whiteness doesn’t get overwhelmed by these immigrants who are coming in. And their interests: eugenicists are deeply involved in immigration policy.
JS: Right. I was gonna say they’re deeply anti-immigrant. [Laughs.]
MM: Yeah, that’s where their interests are. They’re not focused on Black people. And so he misses that entirely. And if he really wanted to sort of delve into Blackness and race and reproductive control, he could have just waited until the 1960s where many states have maintained their sterilization programs and now deploy them against poor women of color who are in receipt of public assistance. They make sterilization a condition of continued receipt of public assistance benefits, but he completely elides all of that, to make this kind of fakakta argument that abortion is a tool of eugenics.
And, as you say, there’s so many reasons why this is wrong. An individual exercising the right to abortion is not the same as the eugenics movement trying to optimize whiteness, and to embed white supremacy, like it’s very, very different. But he completely elides these differences for an argument that’s attractive and has flourished in the lower federal courts among many of his former clerks who are now judges, but really is divorced from the actual history and divorced from the voices of Black women during the 1960s, who were arguing that they wanted access to family planning, because they wanted not only economic and educational opportunity, but if the Black Power movement was going to succeed, it could not be a movement entirely of men with them staying home to care for the children.
MM: And if you want it to talk about genocide, and injustice, as some members of the Black Power movement were, you really needed to talk about the poor conditions in which Black women were forced to raise their children or the Black women who were dying from illegal abortions or because of the absence of contraception or the absence of access to health care in those communities. So it elides a lot of things and especially Black women’s voices.
So those are the first two things. I’ve gone on long, but I’m going to clean it up right now.
JS: OK! [Laughs.]
MM: The last thing, why is this here? So in footnote 41, Justice Alito nods to this history of eugenics. It’s very much a love letter to Justice Thomas. Why does he do it? Is it just merely collegiality, like: I’m going to do Clarence a solid and put this in here? Because he doesn’t need to. He’s already overruled Roe v. Wade on entirely different grounds. There’s no need to talk about this eugenics frame.
I think the real reason that it is in here is because, as I’ve pointed out in my writing, it’s not a great argument for abortion, because the histories are so different, and distinct, and you can easily put point out the fallacies in it. It is, I think, a better discussion, if you link this solely to the history of contraception, because Margaret Sanger was working with the eugenics movement, and if the idea here is to recast abortion, and contraception, from being tools of women’s autonomy, and liberty and equality into being tools of racial injustice, the argument probably works better and is easier to make with contraception. So I wonder if this footnote is kind of a breadcrumb or a tiny bandanna around a tree branch to come back to later when they’re ready to start challenging contraception and access to contraception.
JS: I want to get to one thing, just back to what you were saying about the ways in which which Black women were having to raise their families and all these things, and like conditions around these things being really important because I think the truth is that even after Roe, right, people with resources will still be able to get abortions. Like, duh, right?
But that the problem with Roe was in part that it was always, for so many people, just a right on paper. So let’s just talk for a couple minutes about how Roe and then Planned Parenthood v Casey, which mostly reaffirmed Roe never actually conferred an actionable right for many, and then how that sort of proliferation of statewide restrictions just kind of pushed people farther from access, and about really who this has most impacted, right? So, yeah. [Laughs.] That makes sense!
MM: It does. So the right secured in Roe is quite interesting. And this is also worth noting row was not the only abortion rights case percolating when the court was sort of taking this up.
In the 1970s — the early 1970s, late 1960s — there were a lot of different cases, including one from New York state called Hall v. Lefkowitz that was brought by feminist lawyers. And they were making the argument that New York’s abortion law, which made it very hard for women to get abortions in New York, not only violated the right to privacy, that was something that had happened a few years earlier, in a case called Griswold v. Connecticut, it not only violated the right to privacy, it also was a question of sex equality, and race equality, and class equality. And they talked about how women of color bore the burden of these bans, and they were the most at risk for being killed if they sought legal abortions, they had the least amount of access to medical care all of this. They also argued that it was an Eighth Amendment violation, like to bear a child, because the state forced you to was a cruel and unusual punishment. So, I mean, they’re making all kinds of arguments. They’re going to see whatever sticks.
Interestingly, that case and another case led by another set of feminist lawyers, does not make it to the court in time. The Lefkowitz case is meted out when New York State repeals its abortion law and puts in place a more liberal law that provides greater access to abortion. So that gets thrown out and it doesn’t go up to the court. There’s another case called Struck v. Secretary of Defense, which was a challenge brought by a female Air Force captain, Susan Struck, who found herself pregnant out of marriage while serving in the Air Force in Vietnam. And it was the federal government’s policy at this time that if you were a female service person, and you found yourself pregnant, you either had to get an abortion or you had to leave military service. And Susan Struck did not want to give up her job. She also didn’t want to have an abortion because she was a Catholic.
So Ruth Bader Ginsburg, who litigated this case on Capt. Struck’s behalf, argued that there were religious liberty questions here, that this was pregnancy discrimination, this was an employment discrimination issue, in addition to being a privacy case, a sex equality case, all of these things. And so I just want to emphasize: There were lots of different frames around which to think about reproductive rights. And Ginsberg thought the Struck case was the perfect vehicle to go up to the court because it showed: This wasn’t just about avoiding motherhood, it was about choosing motherhood on your terms.
MM: And that case also gets muted because the federal government changes its policy to allow women to remain in military service even when they’re pregnant.
So it’s Roe. That’s sort of the last man standing, and gets to the court. And it’s actually argued by two women, Sarah Weddington and Linda Coffee, who are fresh out of law school. [Laughs.]
MM: And they’re 25 years old or thereabout. And they focus on the right to privacy, in part because it has actually been a very winning argument in the lower courts in Texas at that point. There had been a challenge to a Texas sodomy law that had been struck down on privacy grounds. And so it makes sense for them. But they aren’t making the multifarious claims that these other lawyers are making in these other litigations.
And when it gets to the court, Roe has already cabined to the right to privacy. The court could have expanded it, perhaps, but they focused solely on the right to privacy, and that has really been framed as a kind of a negative right; the right to prevent the government from making this decision for you. But there is no ancillary or concomitant obligation of the government to furnish the conditions under which you exercise the right, like a positive right.
JS: Right. Right. Exactly.
MM: So it’s not just that the 15th Amendment can provide you with the right to vote — like, you actually have to have elections, right?
MM: That’s not the case with abortion. Like, yeah, you have a right to an abortion. But what if you can’t access it, what if you don’t have the money, what if you live far away? Who cares?
MM: And in the 1980s, there was a case called Harris v. McRae, which is a challenge to the Hyde Amendment and the Hyde Amendment is an appropriations rider that has gotten tapped on to almost every session of appropriations bills in the House, and has gone through Congress and been approved many, many times. But it basically prohibits the use of federal funds for abortion with some limited exceptions. And the Hyde Amendment, it was argued, would have a disparate impact on women of color, on Black women, on poor women. And the court was kind of like: Yeah, that’s probably true.
And they just said Roe v. Wade gives you an a right to an abortion, but it doesn’t give you a right to government subsidy of your abortion. And that is really a pivotal moment in the court’s abortion jurisprudence because it is a right, as you say, on paper for the millions of people who lack the resources to actually access this or who are too far away or who live in a state where there is now a single abortion clinic, like Mississippi.
MM: So that’s kind of where you are. And you’re exactly right. The women who bear the brunt of this are indigenous women, young women, undocumented women, women of color, poor women. And that’s a problem.
JS: And I think you’re right. I mean, I think it’s really good, actually; I hadn’t even thought about this in that way as a negative right, like this limiting thing. Because then Planned Parenthood of Southeastern Pennsylvania comes along, and in a way kind of doubles down on that, which then allows all these additional restrictions state by state by state that then, again, access? Whatever!
It’s never been a priority. And, in fact, what the court has done is make it just more difficult and more difficult, so that these same populations just keep getting pushed further and further to the margins and not able to access those rights.
MM: So yes, and no, right?
MM: So Planned Parenthood [of Southeastern Pennsylvania] v. Casey does a lot of things. It does really trim back Roe v. Wade in a lot of ways even as it quote-unquote saves Roe. So you lose by winning with Planned Parenthood [of Southeastern Pennsylvania] v. Casey, because it does save the abortion right. But it also gives the state wider latitude to restrict access to abortion.
But one of the things that Casey does that I think doesn’t get quite a lot of airtime is that it rectifies a problem that Roe had that really was just a problem of timing. The Supreme Court takes up Roe in 1973. That’s right at the moment where the court is reading the 14th Amendment to finally include women. Women, as I said before, are not specifically enumerated in the Constitution. The Constitution says nothing about women.
Through Ruth Bader Ginsburg’s efforts and the efforts of other pioneering women lawyers, the 1970s becomes this moment where they are pressing the court to interpret the 14th Amendment in a way that reaches questions of sex discrimination and gender discrimination. And so Roe comes at the same moment as we’re getting all of these cases that are about whether the state can make distinctions on the basis of gender. And so, the fact that they are contemporaneous means that the court’s abortion jurisprudence isn’t really nourished or cross-fertilized, interestingly enough by what is happening in the sex discrimination-realm, right. So Roe is a privacy case, it doesn’t really think about sex equality in a very thick way.
And it’s also a case decided by nine men.
JS: [Laughs.] Right.
MM: Planned Parenthood [of Southeastern Pennsylvania] v. Casey is a 1992 decision. And so we’ve had almost 20 years, at this point, of women being part of constitutional law, like literally being part of constitutional law, and the court having a framework and a vernacular for thinking about what it means to discriminate on the basis of sex and gender. And so Casey, even as it limits Roe, even as it expands the power of the state to restrict abortion, it also talks about abortion in radically different terms than Roe did. And it talks about it as a vehicle of women’s equality, it talks about the idea — and this, I think, is also a function of the court now having a woman on it.
MM: So, Sandra Day O’Connor is part of the plurality in Casey. And I actually think she probably wrote this part. She talks about the women of this country coming to rely on abortion, planning their lives around the prospect that this exists if something goes wrong. And it has been a vehicle for women to make their way in this society, and it’s necessary for them to be understood as equal citizens. This idea of controlling your own reproductive capacity is fundamental to the prospect of women’s equal citizenship.
You don’t get that in Roe. You do get that in Casey. And it’s not surprising; you’ve got 20 years to sort of let this jurisprudence of sex discrimination steep.
[Meditative musical interlude.]
JS: I want to get to one really important thing, which is that Alito tries to silo abortion rights as the only thing on the chopping block here, but I don’t understand how you can see it that way.
Can you explain why that isn’t necessarily the case and what additional rights may be threatened?
MM: So this is gaslighting, pure and simple. And I will just say there are a number of male pundits who, I think, over the last week have said like me and other women who have said that this is clearly not the case, our hysterical lady parts are getting the better of us.
MM: OK, I’m happy to be Cassandra destined to know the truth and not be believed. Because it doesn’t make any sense that abortion can be sequestered from these other rights: same-sex marriage, contraception, interracial marriage, because if the problem with abortion rights — and Justice Alito is very clear about what the problems are — they are unenumerated, they’re atextual, they’re ahistorical. So are all of these other things.
Nothing in the Constitution speaks of marriage. Nothing in the Constitution speaks of same-sex marriage. Nothing in the Constitution speaks of interracial marriage. The Constitution says nothing about Ortho Tri-Cyclen and birth control.
JS: [Laughs.] Right.
MM: Nor is there a historical tradition, right? Contraception was criminalized in many states until the Supreme Court invalidated that in 1965. Same-sex Marriage was not permitted in most jurisdictions until the 2000s. And interracial marriage was banned in many jurisdictions well until 1967, when Loving v. Virginia was decided. So the idea that abortion is unique, abortion is distinctive, and it is distinctive because it involves the destruction of a potential human: OK, but nothing in the logic of this opinion allows for us to meaningfully sequester the prospect of invalidating rights to abortion from the prospect of invalidating rights to all of these other things.
And all you have to do to see the writing on the wall is listen to the Republicans. At Ketanji Brown Jackon’s hearing, Sen. Marsha Blackburn was like: Do you agree with Griswold v. Connecticut? Griswold is the 1965 decision that permitted adults who are married to use contraception in their marriage. She was suggesting it was wrongly decided.
Sen. John Cornyn, the senior senator from Texas, was asking Judge Jackson about her views of Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage. Sen. Mike Braun of Indiana suggested that interracial marriage should be left to the states — and then he tried to walk it back, but not that much.
MM: I mean, they’re showing you where they’re going. I mean, I don’t know why you take Justice Alito, the angriest man on the court, at his word here. The only thing that will stop them is what they think they can get away with.
JS: Exactly. And so this kind of comes back to Marsha Blackburn, to this idea that they’re speaking these things out loud, you just got to take them at their face value: like, when they tell you who they are, believe them. Because I just want to see what you think, the next battle lines. Especially regarding reproductive freedom and maybe beyond.
I see fetal personhood and resulting criminalization, but also definitely attacking various forms of birth control, and thinking like IUDs, plan B in particular. And kind of jumping onto your footnote thing, I think that some of these things I’m concerned about are precisely because of some of the positions that the court or its members have taken in the past. So I’m curious what you see ahead, and are there any clues and other Supreme Court opinions about how these might play out within a new landscape?
MM: Let me first say that any changes don’t necessarily have to be immediate. Remember, it took almost 50 years to overrule Roe v. Wade. So they’re skilled at playing a long game. And I think you could see that. And I think that might be the case for same-sex marriage, for example. It is something that enjoys a great deal of popularity right now. And withdrawing those rights could definitely be politically problematic.
But we’ve also seen a rising effort and the proliferation of accommodations for religious objectors to same-sex marriage. And it might be the case that we just continue to bless the prospect of religious objections. And once you’ve actually normalized the idea that you can treat same-sex couples differently in the public marketplace, you do that for 20 years, and it’s not that hard to imagine curtailing the rights more substantially.
MM: Right. So, this could be a longer game. Contraception, I think, is a more immediate prospect, in part because we’ve already seen the groundwork being laid for that in the objections to the contraceptive mandate of the Affordable Care Act.
So in 2014, there was a case called Burwell v. Hobby Lobby [Stores, Inc.], which involved a challenge to the contraceptive mandate that was brought by a family-owned corporation Hobby Lobby, that not only sold stencils, but also harbored real objections to certain forms of contraception — [laughs]
MM: — including IUDs, emergency contraception, and some other forms of long-acting contraception. And the reason why they objected to these forms of contraception and providing them to their employees as part of the Affordable Care Act’s mandate was because they viewed them as quote-unquote abortifacient and the “science” here, and I’m saying “science” in quotation marks, is that they argued that these forms of contraception prevented the implantation of a fertilized egg in the uterine wall, and therefore they were tantamount to an abortion. Right?
MM: So I just want to say for everyone who has followed me on Twitter and has blamed me for not knowing science. I’m just reporting this. I don’t believe this. I know this is not science. But this is the argument that was made — and it is scientifically unsound. That actually is not how IUDs work. It’s not how emergency contraception works.
JS: Exactly. There’s science and there’s junk science, and it’s deployed freely in the reproductive space. Go back to eugenics and now their take on IUDs, and plan B, and stuff like that. So absolutely: science is real, junk science is junk.
MM: But junk science shows up at the Supreme Court.
JS: Yes! Yes!
MM: And in the Hobby Lobby opinion, Justice Alito, who wrote that opinion crediting this argument and ruling for Hobby Lobby, doesn’t really do anything to dispel the idea that an IUD is an abortifacient. And so that lives in a Supreme Court opinion.
MM: And once you’ve sort of had the imprimatur of the court, sort of blessing this idea that an IUD is a mini-abortion, you can continue from there. And so I think we’re already beginning to see that.
So Louisiana has a law that has been proposed that would essentially make abortion a homicide, but also includes, as an abortion, the prospect of IUDs and emergency contraception, the question is whether or not those are considered abortions because they are quote-unquote abortifacients. And so that, I think, is the whole game, like: What is an abortion? And once you sort of expansively define what it is to be an abortion, what it means to perform an abortion, then I think it’s a much easier road for banning certain forms of contraception. And once you normalize that you can’t expect access to certain forms of contraception, again, I think it becomes easier to limit other forms of contraception.
JS: You did this “Why Abortion Is Essential to Democracy” event with the Brennan Center, where you were speaking to this idea that this is what broken democracy looks like, that kind of regardless what the court rules here, that being at this point, right, where we are, kind of shows how democracy has been damaged.
And you talked a bit about Texas’ S.B. 8 as part of that. So I’m wondering if you can go ahead and maybe explain what you mean about broken or disrupted democracy? And then, while doing so, maybe offer a brief description of the Texas law to just remind people what’s going on there?
So we often think of voting rights and reproductive rights in two different silos, and they don’t overlap at all. And I think we have siloed them to our detriment, because they are really very much inextricably intertwined. And I mean that to say that the law enforced in Texas right now, S.B. 8, which is a patently unconstitutional law that the Supreme Court has allowed to continue to be enforced in Texas for months now, it’s patently unconstitutional, but it’s also the product of a democratic failure in that state.
So that is a state that has been gerrymandered beyond recognition at the district level. And it’s allowed for not just a red legislature — I mean Texas is a red state, but it has pockets of blue. But a lot of those blue pockets have been rejiggered so that they are smaller and therefore less influential in the political process, less influential in the state legislative process, and it is allowed the legislature to be decisively red, decisively conservative. It’s extreme gerrymandering. And that’s basically how you get a law that’s as extreme as S.B. 8.
This is going on all over the country, right? And the Supreme Court, interestingly, has said in an opinion from 2019, that there is no role for the federal courts in dealing with partisan gerrymandering; that’s something the states have to decide. Which honestly is like your house got burgled and you turn to the burglar to return all the stuff. Like: The states are doing this. Why would they stop? Right?
So the court has left it to the states to fix the problem the states have created. So, terrific. That’s one aspect of it.
And then, the court itself has also dismantled the opportunity for individuals to register their discontent at the ballot box because they’ve dismantled the preclearance process of the Voting Rights Act and made it easier for states to pass laws that actually suppress the vote. So you know, here are our choices. We can either prevent these laws from getting passed — harder to do if you live in one of these states that’s been gerrymandered beyond recognition, and then you can sort of protest. That’s harder to do if your vote isn’t being counted, if it’s harder to vote, and essentially, you’ve got a court that has made it so hard to participate in democracy — and this also has the ancillary benefit of shielding the court. Like, when they do actually overrule Roe vs. Wade this summer, how are we supposed to register our discontent?
I mean, this is the thing that’s so funny right now. People are all up in arms because people are silently protesting Justice Kavanaugh’s house. Like, you’ve dismantled all of the acceptable means of protesting that are legitimate, like voting! What are people to do? You’ve got a wall around the Supreme Court, where should they go? It’s not surprising that they have gone to your house, the only thing that is surprising is that your neighbors are facilitating it.
JS: [Laughs.] Exactly. And this is where I want to try to transform that into — perhaps, can we find a glimmer of hope here?
Which is that, for me, even before the opinion leaks, I’ve been talking to providers, advocates, activists, and they obviously were all pretty clear this was coming, too. But they were like: OK, look, when Roe falls, we have an opportunity, though it may take awhile, to build something new. But that it’s going to take people joining forces, that you have to come from a full sort of social and reproductive justice framework, and that we have to support each other, that we have to understand that all our rights intersect, which of course gets me to thinking about what you were saying about the other challenges that had been brought to get at the abortion, right, in the cases that finally didn’t get there — that kind of looked at this situation more broadly.
So I’m wondering: What do you think is the thing that we can do knowing what’s out there. What do we need to do to try to reassert our voices and to try to get this tanker ship to turn back on course?
MM: So, one: I know a lot of people are just like, voting is terrible. Nothing ever happens. We haven’t been able to secure protections for voting rights in the Senate.
I want to just be like a complete older person about this.
MM: We have to vote. We have to take the midterm elections seriously.
One of the reasons we haven’t been able to do all of these things that people want is because the Senate is exactly 50-50. If we had a more decisive majority in the Senate so much more would be possible.
I mean just even think about the judges that could be appointed. Justice Jackson is amazing. Again, genetically modified in a lab for this moment. But she was also selected because she was so impeccable, so fantastic, and did not have a record on abortion cases. Like nothing that could really be assailable or could be just leapt on by the Republicans, and they still came for her. Right?
JS: Yeah. Mhmm. In the most tacky and disingenuous — oh, it was horrible are the nicest things I think I could say. Yeah.
MM: But imagine if there was a more decisive majority in the Senate. If the Democrats had a more decisive majority.
MM: You might be able to get someone who had actually written about abortion and had been very clear. Someone like Ruth Bader Ginsburg. I mean, we’re living in a time where Ruth Bader Ginsburg could not have been appointed to the court from the Senate. Because she has done things like advocate for women’s equality: what could we do if we actually were able to channel our voices through the democratic process. Like, when you talk about elections, it’s clear that there are lots of people who care about different issues, and they’re not voting. They don’t think their vote matters. They don’t think it counts. They think the system is rigged. What if those people just, on a whim, were like: I’m going to vote in this one. I’m going to vote with this progressive majority. I’m gonna make my voice heard because this moment is too important. We could make gains.
MM: We could stop partisan gerrymandering. We could be heard. You could turn Texas blue. Look at those 5,000 people who turned out with three days notice in Houston to hear Beto O’Rourke.
JS: Yeah. Yeah!
MM: Like, Texas is a purple state for some purposes.
JS: Oh, yeah, absolutely. [Laughs.]
MM: What could we do if we actually took this moment seriously?
And so I’m so excited to see all of the agitation and how exercised people are about this. Keep this energy to November. I think one of the things this leak was designed to do is to get people all aflutter right now. And then by the time they actually do release an opinion in June, we’re sort of like: Yeah, we knew that was coming. Or if it’s not a complete disaster, and it’s not as extreme as Justice Alito’s draft opinion, we actually think it’s a victory when it’s not. We have to be as mad in June and in November as we were on the Monday night that draft decision got announced.
JS: Melissa Murray is the Frederick I. and Grace Stokes Professor of Law at New York University, and the co-host of an excellent podcast about the Supreme Court, Strict Scrutiny.
Professor Murray, thank you so much for joining me.
MM: Thank you for having me. It’s been great to be here.
JS: And that’s it for this episode of Intercepted. Follow us on Twitter @Intercepted and on Instagram @InterceptedPodcast.
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Thanks so much.
Until next time, I’m Jordan Smith.
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