News in review: The Dobbs decision

MARY REICHARD, HOST: It’s Monday, December 26th, and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Today for Legal Docket, we’ll take time to review the most consequential Supreme Court decision of the year. It’s the one that overturned the court’s decision from 1973 that has been responsible for more than 60 million abortions to this point.

ROBERTS: We will hear argument this morning in Case 19-1392, Dobbs versus Jackson Women's Health Organization.

That decision in Dobbs v Jackson Womens Health meticulously dismantled the legal reasoning of Roe v Wade. Roe challenged a Texas law that allowed abortion only to save the life of the mother.

Even the late liberal Justice Ruth Bader Ginsburg criticized Roe. Listen to her in October 2019 on Bloomberg TV:

GINSBURG: I thought Roe v Wade was an easy case and the Supreme Court could have held that extreme law unconstitutional and put down its pen. Instead, the court wrote an opinion that made every abortion restriction in the country illegal in one fell swoop, and that was not the way the court ordinarily operates.

REICHARD: The Supreme Court does not ordinarily operate that way.

In the Dobbs decision, Justice Samuel Alito for the majority six justices wrote the following: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

EICHER: The reference to Casey is Planned Parenthood of Southeastern Pennsylvania v Casey, which the Supreme Court decided in 1992.

Here’s Justice Sandra Day O’Connor announcing the Casey opinion, reaffirming Roe’s outcome permitting abortion prior to fetal viability.

O'CONNOR: We also reaffirm the State's power to restrict abortion after fetal viability if exceptions are made when the woman's life or her health is in danger. We also hold the State has legitimate interest from the outset of pregnancy and protecting the health of the mother and the life of the fetus that may become a child, and that the State may further these interests so long as it does not unduly burden the woman's right to choose.

REICHARD: That phrase, “unduly burden,” sparked years of litigation to figure out what it means. Are waiting periods permissible? Is informed consent okay? What about licensure requirements? Even the width of hallways in an abortion facility became subject to litigation.

GIPSON: But I do think it's interesting that that America, the United States of America is one of only four countries in the world that allows unfettered abortion after 12 weeks. Two of the other four are China and North Korea. Do we really want to be in the company of these folks?

And a heated exchange between bill sponsor Becky Currie, a registered nurse, and Representative Adrienne Wooten:

WOOTEN Let me ask you this. Why would you force a woman to have a child who has decided that she does not want to have that child? Tell me what right the state has to force a woman to do something like that?

CURRIE: Lady, I do believe that life is precious.

WOOTEN: I believe that also.

CURRIE: I believe that children are a gift from God.

WOOTEN: I believe that also.

CURRIE: And I think that if you have a child and you don't want it, that there's somebody else that does want it and will love it.

WOOTEN: Well, then why then if there's somebody else is going to want this child, why do we have children and Child Protective Services right now that can’t even be placed? We have children that actually aged out of Child Protective Services, because nobody wants them.

Despite that opposition, the bill became law. Within hours, the state’s only abortion facility along with one of its doctors sued to stop it.

The sole legal question was whether Mississippi’s 15 week law was unconstitutional.

One lawyer who wrote a friend of the court brief in support of the abortion facility is Erica Harris. I spoke to her in April:

HARRIS: I would like to emphasize that this case is about individual liberty. I think most Americans agree that our country is premised on ideals of individual liberty. That no one, not even the state has the right to force someone to practice a particular religion, to subscribe to a particular morality, or to use their body in a particular way. As the brief demonstrates, there are a multitude of reasons why people choose to terminate a pregnancy. Your listeners may morally object to some or all of those reasons. But according to our constitutional case law, neither they nor the state have the power to impose their views in that regard to deprive individuals of their right to make those decisions for themselves, and exercise autonomy over their body.

EICHER: For the pro-choice side, the strongest legal argument was precedent. In other words: The court must stand by a decision millions of women depend upon.

For the pro-life side: strict adherence to the Constitution was the argument. If abortion isn’t there, then Roe and Casey made bad law. Therefore, the court ought to overturn.

During oral argument in Dobbs, the idea that the constitution says anything at all about abortion was a point of contention among the justices.

Justice Sonia Sotomayor:

SOTOMAYOR: Counsel, there's so much that's not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that's what was intended.

Justice Stephen Breyer:

BREYER: To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court's legitimacy beyond any serious question.

REICHARD: But the high court has overturned many of its poor decisions. Justice Brett Kavanaugh ticked them off: Plessy v Ferguson in 1896 said separate but equal education for black and white students was constitutional. But in Brown v Board of Education nearly 60 years later, the court said it wasn’t.

Listen to his exchange with Julie Rikelman, lawyer for the abortion business:

KAVANAUGH: ...why then doesn't the history of this Court's practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and not stick with those precedents in the same way that all those other cases didn't?

RIKELMAN: Because the view that a previous precedent is wrong, Your Honor, has never been enough for this Court to overrule...

Justice Kavanaugh also said this:

KAVANAUGH: The Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue to the people of the states or perhaps Congress to resolve in the democratic process.

That turned out to be the final opinion. Dobbs didn’t end abortion across the country; it returned the matter to the individual states.

I called up WORLD’s reporter on the life beat, Leah Savas, to find out what’s next in the pro life movement. And I began by asking her, now that Roe is gone, how will the pro life effort change?

LEAH SAVAS, REPORTER: In some ways, it’s a lot of the same that we’ve been seeing since Roe, and even before, but there’s a sense of urgency now that states have the power to legislate on this issue.

REICHARD: How so?

SAVAS: The overturn of Roe v Wade definitely unleashed a 50-state battle on the abortion issue. And we’ve seen that play out on several different levels already. Lawsuits are playing out in the court over existing pro-life laws. Already in special sessions we saw even majority pro-life legislatures sparring over what kinds of protections for the unborn to enact. They’re trying to figure out what exceptions to include. We’ll probably see more of this in the upcoming year as states move towards further protections.

REICHARD: You’ve got an entire book coming out about the history of abortion in America. Based on the research you did for that, what might we expect to see going forward, post Roe?

SAVAS: In states that already have abortion bans, we might see attempts to clarify past legislation, but we’re also already seeing pro abortion groups push to put abortion rights amendments on state ballots, since the three in November were so successful. These especially will be important to watch. They’d have to make it onto ballots in pro-life states and the majority of voters would have to approve them. But if they do these amendments would nullify existing protections for the unborn. Because these questions come down to voters, I think prolife groups will be focusing a lot on education and simply informing voters on the reality of abortion and the importance of protecting unborn life.

REICHARD: Thank you, Leah.

SAVAS: It’s great being here. Thanks, Mary!

REICHARD: Again, we’ll link to the two-part Legal Docket Podcast in today’s transcript. The titles: Overruling Roe, Dobbs I and Overruling Roe, Dobbs II. That’s this week’s Legal Docket.

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