Does Roe v. Wade Stand A Chance?

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S1: Mark Joseph Stern covers the Supreme Court for Slate, that means he pays a lot of attention to what’s going on at statehouses around the country, he’s looking for areas of legal friction, legislation that could end up making its way to the nine justices in D.C. this year. He’s watched a quiet competition emerge between Republican lawmakers nationwide, a competition over abortion.

S2: I would say it is a race between Republican controlled legislature is to pass the most extreme abortion bans.

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S1: What do you mean when you say that?

S2: Well, the states seem to be eager to outdo each other. We first saw states passing bans at 20 weeks and then 15 weeks, 12 weeks, eight weeks, six weeks.

S1: Eventually, Arkansas went all in. Governor Asa Hutchinson instituted a ban on abortion from fertilization. In all, the Guttmacher Institute says there have been 165 abortion bans introduced all around the country just this year. Advocates have called it a shock and awe campaign. But none of these bills can go into effect given Roe versus Wade.

S2: So what’s the point? So the point is, I think twofold. First, I think the point is to create a sense that there is this all out assault on Roe and that the all out assault indicates Roe’s weakness or rose instability. But I think the second point which is related is to actually send the Supreme Court a vehicle that will let the justices overturn Roe. They need a case. And I think all of these states want to be the ones to send the Supreme Court. That case that leads to the reversal of Roe.

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S1: You’ve said the time you think is right for Roe v. Wade to be overturned. Why do you say that?

S2: I would say maybe three words here. Amy CONI Barret’s For many years, there were five votes to restrict Roe, to kind of rein it in, to allow incremental restrictions on abortion. But there were never five votes to reverse it outright. And now it looks like there may be up to six votes to reverse Roe outright.

S1: Today on the show, lawmakers have been whittling away at Roe versus Wade for years, but what’s happening now, it’s fundamentally different. Statehouses and courts are working hand in hand to roll back the right to abortion completely. So with the walls of the legal system closing in, where does that leave the right to choose a Mary Harris? You’re listening to what next? Stick around. If you want to zoom in on one state that’s laser focused on restricting abortion and think about how those restrictions could play out over the next few months and years, Mark says Arkansas is a pretty good place to start. Arkansas already put in place a trigger law a couple of years back that would automatically ban abortion if Roe v. Wade got overturned. But this year, Arkansas instituted an abortion ban, all of its own in violation of existing legal precedent.

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S2: That ban is so extreme and, you know, beginning at fertilization and embryo is protected by the law, even if the embryo is created through an act of rape. Right. The law says, well, there’s nothing that the woman can do. She has to carry that pregnancy to term.

S1: And what’s interesting about that is that a huge percentage of fertilized eggs do not go on to become babies or embryos or anything else. Women get their period or they miscarry. And some of them never knew they were pregnant in the first place.

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S2: Yes. And this is something that we’ll see after Roe is reversed that we already see in countries where abortion is banned, which is criminal investigations of miscarriages, not uncommon in countries with really extreme restrictive abortion bans like Central America, for instance, where prosecutors get involved when a woman say, goes to the hospital with a miscarriage and investigate whether that miscarriage was induced. And if so, then this is a criminal case. It’s no longer a personal medical issue. It’s a matter of a legal, natural human under the law dying under potentially suspicious circumstances. Hmm.

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S1: Have we already begin to see prosecutors wrestling with that ambiguity here in the United States?

S2: Absolutely, and this is this is something that anti-abortion advocates don’t like to talk about, but we have already seen a number of prosecutors try to work around Roe v. Wade to prosecute women who terminate their own pregnancies. So in states like Georgia and Idaho, we have seen women who have minimal access to abortion clinics, order drugs online and do their own abortions. And prosecutors will file criminal charges against them. They will go to the hospital and handcuff them. They will throw them in jail and again, try to work around Roe to say, well, you murdered this child or you practiced medicine illegally or you disposed of a corpse unlawfully using these kind of arcane laws or just going straight for murder to try to put the woman on the hook. And we see anti-abortion advocates say, well, we don’t want to punish women who terminate. We want to punish the abortionists. But in reality today, women themselves are often the so-called abortionists. That’s something that anti-abortion advocates just haven’t really wrestled with. And I think it shows what a fantasy or a delusion it is for them to claim that women won’t ever be punished for terminating their pregnancies.

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S1: Back when Arkansas passed that trigger law in twenty nineteen legislators openly worried about the implications of the bill they were debating. Arkansas State Representative Dan Douglas, a Republican self-described as pro-life, spoke out against this legislation before it headed to the governor’s desk.

S3: I am pro-life. But I am proud of humanity, too. I feel like this bill goes too far. And who are we to sit in judgment of these women making the decision between them and their physician and their God above? It is their right to do that and not ours.

S1: With this year’s ban, legislators debated the same kinds of issues, one senator brought up her 10 year old niece and lamented that she might be required to carry a pregnancy to term if she was the victim of rape or incest. But when a few Republicans tried to insert language into the bill that would grant exceptions in these kinds of cases, their colleagues brushed them off, said they were making the kinds of arguments Planned Parenthood might make. Martyrs of Stern says that’s because right now, conservative legislators are feeling confident.

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S2: Abortion restrictions have always been about the art of the possible. And for a long time, the goal was to get the Supreme Court to push Roe to its limits by, say, upholding mandatory ultrasounds or really long waiting periods or mandatory counseling, where a doctor has to spew this anti-abortion propaganda sort of chipping around the edges of Roe. And at that point, some Republicans, not all, but some wouldn’t necessarily want to go out and say the end goal here is to just ban all abortions because that gives the game away. Think about the trap laws that target clinics that impose these really onerous restrictions on abortion clinics to try to shutter them.

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S1: These are like restrictions that talk about your door has to be certain a number of feet wide and you have to be associated with a nearby hospital in order to do abortions.

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S2: Your doctor has to have admitting privileges at a hospital that’s within 10 feet or 15 miles. Your vents have to be so many inches wide. All of this stuff that all medical experts agree is not actually necessary to protect women’s health, to defend those laws in court, Republicans had to pretend like they were about women’s health, like they were not actually about banning abortion, because Roe still seemed at that point like it was here to stay. And after Brett Kavanaugh joined the court, after lower courts started to suggest that they were ready to start defying Roe, and especially after Amy CONI Barrett replaced Ruth Bader Ginsburg, I think Republican legislators saw less of a reason to pretend like this was about protecting women’s health or even about incrementally rolling back abortion. This has become, as I said, a sprint to overturn Roe, to kind of take the glory of being the state that ends Roe. And there’s no need to pretend like it’s about anything else. And Republicans who have some concerns about extreme abortion bans don’t have much room in the party, at least on the state level in most of the country.

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S1: Mark, you keep talking about when Roe versus Wade is overturned, but shouldn’t we be saying if.

S2: Well, I mean, I think it’s very clear that Roe will be overturned or perhaps so eviscerated that it basically doesn’t exist anymore. And I kind of think that for people like me who are pro-choice, it’s better to start grappling with that reality, both on the kind of abstract level and in terms of how we talk about abortion. And so to me, I think it’s probably more realistic to just say Roe is going to go and we’ll learn exactly how over the next year

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S1: for Mark, excepting that Roe is on the way out, means thinking through other legal problems that laws like the one in Arkansas are about to create problems for people who might not see themselves as especially involved in the debate over abortion. Right now,

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S2: once you’ve granted this kind of personhood to a fertilized egg, then you have criminalized a broad swath of fertility treatments, including IVF, because that process involves creating embryos and eventually destroying some of the embryos. And this is something the anti-abortion movement has been focused on for some time. In fact, there are devout Christian couples who will adopt an embryo. They will adopt a fertilized egg, I

S1: believe they call them snowflake babies.

S2: Yes, precisely. Snowflake babies who are carried to term by another woman. And they think that this is protecting the sanctity of human life. And it was only a matter of time until that bled into legislation. And so what we’re seeing in Arkansas is not just affecting individual women’s health decisions, but affecting couples, both same sex and opposite sex couples who struggle with infertility. This law very clearly says you are not welcome in Arkansas if you want to use IVF. And I think that’s the next stage in this battle because this was never going to end with abortion. It’s also about all this other stuff, including contraception, birth control and IVF. And I think once Roe falls, that’s sort of the next front.

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S1: OK, so Arkansas is doing this very extreme approach, and again, we should say out loud that this law that has passed is not enforceable currently under current American law. But I think it’s probably also worth us talking about what’s happening in Texas, because Texas, the law they passed is not the most draconian. It’s not, you know, restricting abortion at fertilization. But I think you would agree with me that it’s the most creative in a lot of ways where it’s finding interesting ways to restrict abortion and interesting incentives for people to look into each other’s lives and kind of punish each other for their actions, which is it’s just a new approach. So can you tell me a little bit about what’s happening in Texas?

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S2: Yeah. So Texas has long tried to severely restrict abortion, passed a ton of very draconian abortion restrictions and limitations. And every time Planned Parenthood or another group marches into a federal district court in Austin and secures a preliminary injunction that blocks the enforcement of the law. And the law never takes effect. And Republicans get really mad and they pass another one and the cycle repeats itself. So with this new bill, which is called SB eight, Republicans have tried something new. They have banned abortion after six weeks. It’s in some ways a traditional heartbeat, Bill, but they have expressly barred the attorney general or any other state official from enforcing the law. So what that means is Planned Parenthood cannot go into a federal court in Austin and sue the Texas attorney general and try to block him from enforcing this law because he doesn’t have the power to enforce this law. No state official has the power to enforce this law. Instead, the law is enforced by private citizens, individuals anywhere in Texas who can march into a state court and file a lawsuit against any person who aids or abets an abortion that occurs after six weeks. The damages begin at ten thousand dollars plus attorney’s fees. And it’s written in the broadest way possible to sweep in not just abortion providers, not just clinic staff, not just the receptionist at Planned Parenthood, but also a friend who drives you to the clinic, a family member who helps to cover the bill, someone in another state who gives money to an abortion fund that ends up helping to pay for your procedure. All of those people can be sued again, a minimum of ten thousand dollars per abortion. And they have to duke it out in the court that the stranger, the Randolf, the private citizen, filed the lawsuit, which means that people are going to be suing the hell out of Planned Parenthood starting in September when this law takes effect

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S1: so they can do this even though abortion is illegal and ROE still stands.

S2: They can do it now when VRO still stands, because there is actually a provision in the law that says you can be sued for aiding and abetting an abortion that is legal, and if that abortion is later deemed illegal, if Roe is later overturned, you’re still on the hook. So there’s this really sweeping language that basically says you aid and abet a legal abortion and abortion that is protected under the Constitution and the Supreme Court precedents today. You can still be sued because the state of Texas doesn’t agree with those decisions.

S1: When we come back, how the state by state battle is about to play out at the Supreme Court. At the same time, these state laws have been getting jammed through all around the country, the Supreme Court itself weighed in and sent a signal about the way its rulings on abortion may be about to change. The court did this most directly by announcing plans to take up a case that challenges Roe v. Wade directly, a case that started in Mississippi, that state tried to ban most abortions after 15 weeks of pregnancy a few years back. It’s a law that Merck says was crafted specifically to end up in the Supreme Court’s lap.

S2: Let’s be clear, Mississippi passed this law explicitly to serve as a vehicle for the Supreme Court to overturn Roe. So the law has never taken effect. The legislature passed it in twenty eighteen, a federal district court blocked it. And then the 5th US Circuit Court of Appeals upheld that decision.

S1: But it’s funny, a 15 week ban, given what we’ve just talked about, a ban at fertilization in Arkansas and a six week ban in Texas, 15 weeks seems almost quaint.

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S2: Yes, it does. And I think maybe that’s part of the conservative justices thinking here that after seeing what could happen, that pro-choice advocates will settle for 15 week ban because they’re afraid of a law like Arkansas’s getting green lighted instead. But to to sort of give the background. So Mississippi passes the law, the lower courts block it. But this Trump judge named Jim Ho on the 5th Circuit writes this kind of long, separate opinion where he says, look, I have to block this under Roe, but I really hope that the Supreme Court uses this case as a vehicle to overturn Roe, because I think Roe is wrong. And in saying that this this judge was speaking for almost all Trump judges who are very, very hostile to reproductive rights. Wow. And so Mississippi offered the Supreme Court a bunch of different options if it wanted to take up this case. So Mississippi said, look, you could take this case and just use it to decide whether Roe v. Wade should stand. But you could also take this case and use it to tweak the standard that courts use when assessing abortion restrictions, to say that fetal life is a compelling state interest that can outweigh women’s interests. Or you could use it to restrict abortion clinics ability to bring lawsuits on behalf of patients. There was like a buffet of options here.

S1: And is there any indication of which option the court is going to take?

S2: Oh, yes, because the court told us the Supreme Court, it was like a seven year old at a Chinese buffet going straight for the last egg roll. The Supreme Court said, we don’t want these compromises. We don’t want these half measures. We’re just going to take the one big question, which is, in short, whether we should overturn Roe v. Wade and allow states to ban abortions before fetal viability.

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S1: Given that we know that the justices have agreed to hear this bigger question, what do you think their ruling on this Mississippi case, which they won’t hear until next session? So we have some time to keep talking about it. What do you think that ruling will do about these more restrictive abortion measures that are now going into place in other states like the Arkansas rule about banning abortion at fertilization?

S2: Right. So the question that the court took up essentially asks, does the Constitution prohibit states from outlawing abortion before viability? And again, Roe answered that question. Yes, the Constitution does prohibit states from banning abortion before viability and that for nearly 50 years has been the bright line rule. And no matter what other restrictions the Supreme Court has upheld, it has preserved and reinforce that bright line rule. And this case is a very obvious vehicle for the Supreme Court to overturn that rule and to say, actually, we think that Mississippi and other states do have a constitutional right, constitutional authority to ban abortions before viability at 15 weeks. And it seems likely to me that the Supreme Court will just uphold this law and not say exactly how far their reasoning goes. So they’ll probably say something like, yes, Mississippi has the authority to ban abortion at 15 weeks. Roe is overturned to the extent that it prohibits Mississippi from doing that and then leaves it to the lower courts to start upholding the even more extreme restrictions, including the outright bans.

S1: So it opens the door for a continued assault by these more extreme laws.

S2: Exactly. Because once you’ve overturned the viability rule, it’s not clear that there’s any bright line standard, that there’s any point in pregnancy where courts can say, OK, before this point, abortion must be legal. After this point, it can be criminalized that that line has been viability for so long. And once it goes away, then Trump judges a special. And the lower courts who have been so eager to uphold abortion bans will finally have what they need, they will have this ruling from the Supreme Court that will allow them to uphold even more extreme bans and they will. Viability is not the rule anymore. Sure, the Supreme Court only upheld a 15 week ban, but its reasoning clearly applies to a six week ban or a total ban or whatever.

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S1: I’m a little curious how abortion advocates are rethinking strategy here, because for a long time they’ve been focused on the court and making these legal arguments. It looks like even the way they make legal arguments may need to change. You know, I remember that Ruth Bader Ginsburg really wanted to have legislation that enshrined the right to abortion, not court cases, is that a direction these advocates are thinking of or are they thinking of whole new ways to argue in court? What are you hearing?

S2: So that’s always been a direction that pro-choice advocates have been moving in, getting good progressive pro-choice legislation passed at both the state and the federal level. They’ve had obviously the most luck in blue states, states like New York, which expanded abortion rights after Democrats finally took real control of the government and states like California. But, of course, if you only focus on the states that ensures that places like Mississippi and Alabama and Texas will preserve their own extreme bans. And so the question becomes, what can Congress do to override state abortion restrictions? And with this Supreme Court, the answer is not much why. So we have to remember this Supreme Court believes deeply in states rights. The Supreme Court believes deeply in restricting the power of Congress and the federal government. And if you look at what the court did with voting rights, I think it’s kind of a preview of what it would do with abortion rights if Congress did act. So with voting rights, you know, Congress passed this law, the Voting Rights Act, that gave the federal government veto power over new restrictions on the franchise in certain states. And in 2013, the Supreme Court struck that down and said, actually, no. As a general rule, Congress doesn’t get to override state laws or veto state laws. That’s not how federalism works here. And I foresee a similar decision if Congress tries to pass a federal abortion law that protects abortion rights at the state level. Kamala Harris has proposed something very similar to the Voting Rights Act for abortion, where the federal government could veto these state laws. And I think it’s pretty clear that this Supreme Court, which doesn’t even seem to believe in Roe, would not allow Congress to extend its power into the states and for states to preserve abortion access.

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S1: Well, of course, that’s why Congress is considering H.R. one and all these other voting protection measures. Are you saying that basically we’re set up for a seesaw at this point with these two branches of government playing tug of war?

S2: Well, I mean, I think that’s probably the optimistic version since the Senate does not seem poised to abolish the filibuster. It doesn’t look like Congress is actually going to be able to pass anything protecting abortion rights unless Manchin and cinema agree to modify the filibuster. So not so much a tug of war as Congress proposing a bunch of legislation, never passing it. And the Supreme Court just increasingly authorizing states to restrict and ban abortion outright

S1: and never come to you if the optimistic take.

S2: Sorry.

S1: I mean, I was looking at the kinds of abortion laws that have been passing around the country and thinking about this Supreme Court ruling and how they’re going to play off of each other. And I did notice that some states like Hawaii and New Mexico are passing laws that increase abortion access like in Hawaii. I think nurses are now allowed to do some abortions. And it did make me wonder if we were headed for a reality, not so much of abortion being off limits, but abortion being off limits in certain places in the United States, like it reminded me of how we’re talking about herd immunity and covid right now where there are individual communities that may be protected, but the country as a whole is not.

S2: Well, I think that’s already our reality because states like Mississippi, I think there’s now five that only have one abortion clinic. And so if you live in a rural region far away from that clinic, you have to drive hours and hours and hours or fly and take time off your job to terminate a pregnancy. And many low income women cannot do that. Many minority communities already live in a reality where abortion is not legal. And so, yes, this is an important fight to have over the Constitution and individual rights. But the truth is that Roe v. Wade has not been good law on the ground in vast swaths of the United States for some time now, which is a testament to the success of the anti-abortion movement’s incremental strategy of rolling back abortion rights, which they’re now sort of finally abandoning in favor of going whole hog.

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S1: Marches of Stern, thank you for joining me.

S2: Sorry to be a downer, but, you know, this stuff was always coming from the moment Justice Ginsburg decided not to retire in twenty thirteen. And we just didn’t know we were living on borrowed time.

S1: Mark Joseph Stern covers the courts and the law for Slate. He’s also our resident optimist. And that’s the show. What Next is produced by Davis Land, Daniel Hewitt, Alan Schwarz, Mary Wilson and Carmel Dilshad, we are led by Allison Benedict and Alicia Montgomery. And I’m Mary Harris. You can go find me on Twitter. I’m at Mary’s desk. But in the meantime, I will catch you back in this feed tomorrow.