SILENT SCREAM DOCUMENTARY: We have here, the child at four weeks and eight weeks, at 16 weeks, and that, 28 weeks. As you can see, there is no revolutionary or dramatic change in the form or in the substance of this person throughout this developmental stage. Now, this little person at 12 weeks is a fully formed, absolutely identifiable human being.
MARY REICHARD, COHOST: It’s hard to tell the entire abortion story. I can talk to a woman in a crisis pregnancy. I can talk to a doctor about fetal development. I can talk to a man who doesn’t want to be a father. I can interview lawyers and historians to provide perspective. But one of the parties to abortion I cannot speak to.
SILENT SCREAM DOCUMENTARY: Now for the first time, we have the technology to see abortion from the victim's vantage point. Ultrasound imaging has allowed us to see this.
To understand from the vantage point of the unborn. Narrating this short film from 1984 is Dr. Bernard Nathanson. He is describing what’s happening in a real-time ultrasound video of a baby at 12 weeks’ gestation…being aborted.
SILENT SCREAM DOCUMENTARY: Bear in mind that this is not an unusual instance of late abortion.
Nathanson is no stranger to abortion. He co-founded the pre-eminent abortion rights organization known today as NARAL, the National Abortion Rights Action League. But later, he changed his mind and became a pro-life advocate.
When The Silent Scream film was made, 4,000 first trimester elective abortions occurred every day. In 2017, the Guttmacher Institute reported that number had dropped to about half—2,000 abortions per day.
The vast majority of abortions performed are elective abortions during the first three months of pregnancy. So we begin part II of our Dobbs coverage acknowledging the voiceless in these court battles—even as we hear from the other parties involved who can speak for themselves, both pro and con.
THEME: I Clarence Thomas...I Sonya Sotomayor...I Neil M. Gorsuch...I John G Roberts...I Elena Kagan...I Samuel Alito, Jr….I Steven Breyer...I Ruth Bader Ginsburg...I Brett M. Kavanaugh do solemnly swear, do solemnly swear, do solemnly swear, that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, so help me God…[APPLAUSE]
MR: Welcome to Legal Docket, I’m Mary Reichard.
JENNY ROUGH, CO-HOST: And I’m Jenny Rough. This podcast is from the creative team at WORLD Radio.
MARSHALL: The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!
JR: Come with us inside the world of the Supreme Court as we look more deeply into current disputes and how they make a difference to your life.
MARSHALL: All persons having business before the honorable Supreme Court...
MR: Today, the Dobbs decision that overturned Roe v Wade: the legal wrangling over bodily autonomy, the unborn, and what government can do.
MARSHALL: God save the United States and this honorable court.
[UNDERWRITING BREAK] Support for the Legal Docket podcast comes from listeners like you. Additional support comes from Samaritan ministries, a biblical and affordable solution to healthcare, connecting more than 280,000 Christians across the nation who help pay one another’s medical bills. More at Samaritan Ministries.org /worldpodcasts.
JR: Last week on Legal Docket, you heard the backstory of how the Dobbs dispute arrived at the Supreme Court. Years of work by pro-life people from all walks of life who came together to pass the Gestational Age Act…the
Mississippi law that directly challenged Roe v Wade by banning abortion after 15 weeks’ gestation. The US Supreme Court, December 1st, 2021:
CHIEF JUSTICE JOHN ROBERTS: We will hear argument this morning in Case 19-1392, Dobbs versus Jackson Women's Health Organization.
MR: The named petitioner, Thomas Dobbs, was an officer with the Mississippi Department of Health. The respondent Jackson Women’s Health Organization…the only abortion facility in the state.
The question for the court to answer was straightforward: Was Mississippi’s law unconstitutional in that it banned nearly all abortion after 15 weeks of pregnancy? That’s several weeks before fetal viability, now set around 24 weeks. Lawyer Scott Stewart argued in defense of Mississippi's law:
STEWART: Roe versus Wade and Planned Parenthood versus 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. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve.
JR: In 2019, even the late Justice Ruth Bader Ginsburg repeated her criticism of how Roe short-circuited the democratic process. Here she is on Bloomberg tv about the Texas law challenged in the Roe case:
JUSTICE RUTH BADER GINSBURG: I had written a comment on Roe v Wade and it was not 100% supporting that decision. 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.
JR: Regardless, in the Mississippi Dobbs case, Julie Rikelman, lawyer for the abortion facility, pointed out what the other side acknowledged. That the state’s abortion ban two months before fetal viability is “flatly unconstitutional under decades of precedent.” Argument one:
JULIE RIKELMAN: Mississippi asks the Court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will. The Court should refuse to do so for at least three reasons. First, stare decisis presents an especially high bar here.
MR: Stare decisis, meaning courts should stick with what’s already been decided. Roe established a right to abortion and Casey v Planned Parenthood in 1992 upheld that right, although Roe’s reasoning was abandoned. Rikelman continued with argument two:
RIKELMAN: For a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty.
And her third argument to preserve Roe and Casey:
RIKELMAN: …eliminating or reducing the right to abortion will propel women backwards. Two generations have now relied on this right, and one out of every four women makes the decision to end a pregnancy.
US Solicitor General Elizabeth Prelogar underscored the point during her time at the lectern.
ELIZABETH PRELOGAR: The Court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society.
JR: Some debate centered around what the US Constitution does or does not say. Justice Sonia Sotomayor dismissed the idea that rights have to be specifically mentioned.
JUSTICE SONIA 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.
JR: She said that’s what the Court did to find a right to abortion. Reasoned it from the structure of one of our founding documents. No explicit language required. Something else worried Justice Stephen Breyer:
JUSTICE STEPHEN 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.
MR: Depending on your viewpoint, the Supreme Court’s legitimacy was lost when it found a right to abort back in 1973. For others, legitimacy is lost when something they want is taken away. Regardless, other justices pointed out that past bad decisions of the high court have been overturned. Opinions even more deeply entrenched and older than Roe and Casey.
For example, Plessy v Ferguson decided back in 1896. It found no Constitutional violation in separate but equal education for blacks and whites. That lasted for 58 years, until the court threw it out as unconstitutional in Brown v Board of Education.
Justice Samuel Alito used that to debunk the reliance argument in favor of keeping Roe and Casey.
JUSTICE SAMUEL ALITO: There was a lot of reliance on Plessy. The South built up a whole society based on the idea of white supremacy. So there was a lot of reliance. It was improper reliance. It was reliance on an egregiously wrong understanding of what equal protection means.
JR: Wrong understanding or not, Rickelman argued that in order to overturn precedent the court needs a special justification. Being wrong, by itself, isn’t good enough. And Mississippi didn’t raise any special justification.
MR: Justice Alito was the first to mention the unborn, whose interest doesn’t change regardless of the gestational week he or she happens to be in. Listen to this exchange with Rikelman, again, lawyer for the abortion facility:
ALITO: Will you agree with me at least on that point, that a woman still has the same interest in terminating her pregnancy after the viability line has been crossed?
RIKELMAN: Yes, Your Honor, but the Court balanced the interests --
ALITO: Okay. And then --
RIKELMAN: -- and in ordering the interests at stake --
ALITO: -- look at the interests on -- on the other side. The -- the fetus has an interest in having a life, and that doesn't change, does it, from the point before viability to the point after viability?
RIKELMAN: In -- in some people's view, it doesn't, Your Honor, but what the Court said is that those philosophical differences couldn't be resolved --
ALITO: Well, what is the --
RIKELMAN: -- in the way --
ALITO: That -- that's what I'm getting at. What is the philosophical argument, the secular philosophical argument for saying this is the appropriate line?
JR: Rikelman answered the line is viability, and that’s the logic the earlier Roe court used. The fetus’s ability to survive separately from its mother is an objective legal line to draw. One that she says doesn’t require the court to resolve any philosophical issues.
SOTOMAYOR: The newest ban that Mississippi has put in place…the Senate sponsors said we're doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
MR: But lawyer Stewart for Mississippi responded that Roe and Casey were the political acts. Those decisions were the radical departures from the Constitution’s text and structure, as well as history and tradition. A return to legitimacy would have the court stick with the Constitution and legal analysis and not buckle under pressure.
JR: Another argument put forth by the abortion facility is that the court must consider the burden of parenting. That, aside from the burdens of carrying and then bearing an unwanted child. But Justice Amy Coney Barrett pointed out something not available to previous generations of women. That is, Safe Haven laws. Every state has one and it prevents parents from getting into legal problems when they voluntarily give up a newborn.
JUSTICE AMY CONEY BARRETT: So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting, insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women's access to the workplace and to equal opportunities. It's also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don't the Safe Haven laws take care of that problem?
JR: Rikelman’s answer was that Safe Havens or not, that means a woman’s child is still in existence out in the world somewhere. Maybe a woman doesn’t want that, either. Justice Brett Kavanaugh restated the stance of Mississippi’s lawyer: made an observation that proved prescient:
JUSTICE BRETT 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.
MR: While we waited for the opinion, I interviewed people both pro and con who’d filed friend of the court briefs and who would agree to talk to me. Not everyone I asked would do that. But one pro-choice organization did agree. We Testify is an organization that represents women who’ve had abortions and it advocates for abortion rights.
Renee Bracey Sherman is executive director. She grew up in a pro-choice household; she says her own mother had had an abortion.
RENEE BRACEY SHERMAN: I had an abortion when I was 19 years old. I had been in a relationship kind of on and off with a boyfriend that my parents didn't love.
JR: Sherman speaks of the environment in which she grew up:
BRACEY SHERMAN: When I was in high school, I had several classmates who were already pregnant, who'd already had abortions. So by seventh and eighth grade, you know, people were having sex and, and raising children.
JR: She too was sexually active early on.
BRACEY SHERMAN: I was on birth control when I got pregnant. I didn't have the money to go pick up an extra set of pills…And I basically thought that if I, you know, missed a week of pills, it would be okay. Because, you know, I've been on the pills for a long time. And friends have told me that if you'd been on it for a long time, it's hard to get pregnant. Takes a while. In fact, it's the exact opposite…And so I got pregnant (finger snap) like that…I didn't actually recognize that I was pregnant, because I didn't know the signs of being pregnant.
JR: She describes the situation she was in:
BRACEY SHERMAN: And I went down to the store and picked up a pregnancy test. And I took it. And I remember I was crying in the bathroom for a good 45 minutes, and my boyfriend knew I was in there. And he never came in to check on me. And so I felt like, if he can't hear me crying, in the bathroom next door to the room he's in because he's playing video games? I'm not sure how he's going to be able to hear a baby cry. And I don't think this is what I want…[11:09] And so I made my appointment. And my boyfriend wouldn't go with me. He dropped me off. But he had, you know, other things to do.
MR: From Sherman’s perspective, she was in the best position to know what she could handle and what was best for her life.
BRACEY SHERMAN: I mean, I think my abortion was over 15 years ago. And I've never regretted it. Because sometimes, you know, there was a time where it'd be like, Oh, I'd see like, I guess I'd have a seven year old now or something like that. …But my life is exactly where I want it to be. And I'm living it to the fullest.
MR: Sherman worries about making something illegal that a percentage of women will always turn to out of desperation:
BRACEY SHERMAN: I believe that abortion should be safe, legal and accessible for everyone. And that every single one of you who is listening, love someone who's had an abortion. The question is, is are you going to show up with them with love and support? Or are you going to turn them over to the police?
MR: I also interviewed Erica Harris, lawyer for the organization We Testify. She emphasized the reliance aspect:
ERICA HARRIS: The Guttmacher Institute reports that while abortion rates have been declining steadily since the 1980s, it is estimated that at the 2014 rates, one in four women will have an abortion by age 45.
MR: It’s hardly debatable that women bear the heaviest consequences of unwanted pregnancy. Harris said that makes unequal their ability to participate in the economic and social aspects of life, as compared to men. Without the right to pre-viability abortion, both women and men are deprived of deciding whether to become parents once conception occurs, Harris said.
HARRIS: Now some respond, well, they can avoid becoming parents by surrendering the child at birth to the state. But that still deprives those individuals of the right to define themselves as someone other than a parent who surrendered a child... individuals might rely on the right to determine that they are going to complete their education before they become a parent, they might rely on the right to decide to achieve a certain level of economic stability, or mental health before becoming a parent.
MR: Harris also points also to practical considerations:
HARRIS: Not all women can obtain jobs that allow them to afford daycare to take care of their child. And not all women have family members who are able to take care of their child while they work. So without someone to take care of the child, an unwanted pregnancy for a woman who does not want to surrender that child means that they cannot continue to work.
JR: One Supreme Court decision relied upon by the pro-choice side is Griswold v Connecticut from 1965. It said a right to privacy can be inferred from several amendments in the Bill of Rights. That inference is what prevents states from making contraceptives illegal for married couples. The Constitution doesn’t explicitly protect a right to privacy, but the guarantees within the Bill of Rights create penumbras, or zones, that establish the right. That’s the reasoning. Harris extends that same reasoning to abortion:
HARRIS: If individuals have a constitutional right to privacy in marital relations to choose to use contraception, then they should also have the right to privacy to choose to terminate an unwanted pregnancy when contraception fails.
JR: Many pro-choice briefs contained stories of women who aborted due to fetal abnormality or risk to the life of the mother. But those are usually exceptions in abortion bans. Those abortions are allowed.
MR: I sought understanding from a biblical worldview regarding the unborn. Something beyond legalities. Reverend W. Ross Blackburn is on the board of Directors for Anglicans for Life. That organization is devoted to preserving both the old or ill from euthanasia and the unborn from abortion.
Blackburn and his wife once had a baby girl who died of fetal abnormality soon after she was born. And he’s walked alongside people in crisis pregnancies who were considering abortion.
JR: Blackburn sees the scope of the problem as much larger than we first might think, even beyond the roughly 65 million unborn lost to abortion since 1973.
ROSS BLACKBURN: If you acknowledge a mother behind every one of those, …And a father behind every one of those, and a circle of what I would call a circle of complicity, if you will, people that have encouraged, supported, made possible these kinds of things. As well as people that…are part of this whole abortion— can I use the word industry? Then you have a tremendous number of people that are suffering under the weight of this matter, the guilt of it. Now, that's not always acknowledged. It's often not, but it's nonetheless real.
JR: But … several accounts from women say they don’t feel any guilt at all. They felt liberated after their abortions.
BLACKBURN: I suspect a lot of a lot of that, quote unquote toughness, if you will, really has to do with how hard and painful it is really to come face to face with who we are and what we've done…I suspect that there are many people, many women, many men who take that line, because they feel like they have to. And in that there are moments where they're not quite so sure about that.
JR: Rev. Blackburn sees language as a limit to understanding in some ways. He points to Psalm 139, which speaks about knitting the child together in the womb. And Jeremiah, the Lord says, “Before I formed you in the womb, I knew you.”
BLACKBURN: There are passages like that. But I would actually say that the strength of the Bible's voice is that it doesn't say much about the unborn specifically at all. And what I mean by that is that you won't find the word fetus in the Bible. Unborn children are spoken of as children. So when, for instance, when Elizabeth is pregnant with John the Baptist, the child lept in my womb…And that's important, because one of the reasons that, perhaps the reason that people charged the Bible with being silent about abortion, is because we presume that in order for the Bible to speak, it has to use the same language that we do.
MR: Perhaps that reminds you of Justice Sotomayor’s argument— that rights not explicitly mentioned in the Constitution doesn’t mean they are not rights. Abortion’s not mentioned, and neither are babies. To use a more contemporary example, neither does the Bible talk about “personhood.” That’s just assumed. But Blackburn says this is about baseline existence, life itself.
BLACKBURN: You know, we are the image of God as mankind, and then leave it at that, you know. So I think in some ways you could say that the Bible considers babies to be babies, and really is really that simple.
MR: He goes on to say putting the most vulnerable among us at the mercy of others is a much larger, social problem.
BLACKBURN: The problem, of course, with abortion is that the most obvious victims cannot speak…There is no more fatherless population I would suggest than the unborn right now in our country…The reason abortion exists in the main is that fathers aren't being fathers. It’s tremendous abdication of men shirking responsibility that leads to at least the lion's share of abortion….The widows in our time, aren't exclusively but certainly include mothers in crisis pregnancy, I mean what is a widow but a woman who is without resource and at the mercy of others?
JR: Blackburn says we often short-circuit the value of hardship when we reflexively respond to suffering. Even suffering of an unborn child diagnosed with a fatal disease in utero, as his child was:
BLACKBURN: There's a reflexive response to that kind of a story that says, well, it would be a more compassionate thing to, to go ahead. And I don't know how you get around the language, though, kill the child early in order to avoid whatever might be happening down the road.
MR: Sometimes as the years roll on, people realize what they didn’t grasp before. Like Kathi Aultman, who used to do abortions. For her, it was only a matter of personal choice.
KATHI AULTMAN: There was no question in my mind that a woman should have the right to choose whether she wanted to be pregnant or not. And that that was the most important thing. I didn't, uh, I didn't consider the fetus in the equation at all…
JR: But Altman came to see things differently when some women said they just wanted to “get rid of it,” the unborn child, while other women cried and grieved for their aborted child.
AULTMAN: I think that that comparison made me understand that just because the child wasn't wanted, that was no longer justification enough for me to do the procedure.
MR: So we’ve considered personal stories, medical stories, and a way to think spiritually. Now for the opinion handed down by the Supreme Court in the Dobbs case. In May, someone leaked the draft opinion. Despite a months-long investigation, the culprit has not yet been identified. The official opinion came down on June 24, 2022. It read much the same way as did the draft.
JR: Reaction was strong, and often wrong. Falsehoods spread on social media like wildfire. For example, Megyn Reyes, a sports host with more than three thousand followers. She tweeted a video on June 27, just days after the final opinion in Dobbs came down.
MEGYN REYES: I once had an ectopic pregnancy...ectopic pregnancies can be fatal…I had multiple procedures…the same procedures as of a few days ago are now considered illegal…the Supreme Court’s overturning of Roe has been extremely triggering for me.
MR: The Dobbs opinion did not make treatment of ectopic pregnancy illegal, but the damage from the falsehood was done. From outright lies or ignorance, to journalistic overstatement such as the headline from Rolling Stone that read: “... the nation’s highest court has officially designated the nation’s women as second-class citizens.”
JR: From falsehood to overstatement to anger. Here is Chicago Mayor Lori Lightfoot, referencing Justice Clarence Thomas’s concurring opinion in Dobbs:
MAYOR LORI LIGHTFOOT: He thinks that we are going to stand idly by while they take our rights?! Our right to marry...
MR: And more coverage along these lines:
CBS: From New York to Los Angeles protesters took to the streets (chants) with angry crowds squaring off with jubilant supporters….
MR: The effect was real and immediate in some states. Missouri’s attorney general Eric Schmitt announced it first:
ATTORNEY GENERAL ERIC SCHMITT: Here in Missouri, the people's voice has already made clear that Missourians respect the sanctity of human life. We believe that without the explicit protection of the right to life, all liberties are under attack, which is why the importance of this day cannot be overstated. I am humbled to be a part of this in the first attorney general in the country to effectively end abortion. As a long champion for the rights of the unborn in Missouri families, I pledge to continue to fight for our most fundamental right, the right to life.
JR: Other states took the opposite stance. California, for instance. Listen to State Attorney General Rob Bonta in a press conference after release of the decision:
ATTORNEY GENERAL ROB BONTA: Abortion remains fully legal in California. Today’s decision does not impact our state’s laws and your right to choose within our borders and in other states that protect reproductive freedom. You have a right to an abortion here.
JR: Which is exactly what the Dobbs ruling allows—state by state abortion regulations— but it wasn’t always reported that way. So let’s turn to the Dobbs decision itself. A majority 6 justices voted to uphold Mississippi’s law banning abortions beyond 15 weeks, with some exceptions. But only 5 justices voted to outright overturn Roe.
The difference was Chief Justice John Roberts. He would have upheld both: Mississippi’s law and Roe. Roberts has often preferred to answer only the precise question before the court and go no further. To him, the only question to answer was about Mississippi’s 15 week law, and not worry about future lawsuits over whether 8 weeks, or 10 weeks, or 12 weeks is an acceptable time to abort.
MR: I interviewed lawyer Sherif Girgis who has written extensively about this case. He once clerked for Justice Alito. He’s now an associate professor of law at Notre Dame Law School. First, he reminds us of the legal question.
SHERIF GIRGIS: Are all prohibitions of pre viability elective abortions, unconstitutional?
MR: Girgis points out that in the law, taking the life of another person is acceptable in cases of self-defense.
GIRGIS: And the law draws a very sharp distinction between that kind of case and the case where you do something that causes somebody's death for some further purpose. That's not saving your own life.
MR: So abortion in the majority of cases is not about saving the life of the mother. Under Roe and Casey, states were not permitted to ban abortions for any reason up to the point of fetal viability. Dobbs changes that. So long as a regulation passes what’s called “rational basis review,” the lowest standard of judicial review:
GIRGIS: And it means that a court has to uphold an abortion restriction no matter what stages of pregnancy it applies to…could include respect for or preservation of prenatal life at all stages of development from the embryo onward. It could include protecting the integrity of the medical profession, banning discrimination against the fetus based on sex or race or disability, preventing especially gruesome procedures, and regulating the procedure to make it as safe as possible for the woman. So…the vast majority of abortion regulations will be okay under Dobbs.
MR: So pro-life states could well protect the unborn from conception on. Pro-choice states can permit abortion up to the day of birth.
JR: Now we drill down into the reasoning of the majority justices. To answer why they thought Roe had to be thrown out. Justice Alito wrote the opinion. He begins by acknowledging there’s not one word about abortion in the Constitution. Then he goes to step two in legal analysis: unwritten constitutional rights that the court might recognize. Girgis explains:
GIRGIS: But for that, it needs to be the case that the right has a deep root in our nation's history and traditions. They don't want courts just deciding whether they think a right is important enough to become a constitutional right. They want some objective basis. And they say that basis is whether you’ve got deep roots in history and tradition.
MR: The opinion goes into great detail about how abortion was regulated and criminalized from the 1100’s in England to America through the 1960s.
GIRGIS: There wasn't a single English court case, or U-S federal case or state case, or statute, or legal treatise, or even a law review article— going out on a limb— that ever suggested that there was a right to an abortion. That on the contrary, at common law and then eventually in statutes, abortion was regulated, statutorily it was criminalized by the time of the 14th amendment's adoption at all stages of pregnancy in the vast majority of states, and that shows that there was no deeply rooted right to it.
MR: The 14th Amendment says no state shall deprive any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws. Girgis says the high court couched other implicit rights in that amendment. But abortion is distinct:
GIRGIS: Because of its arguable impact on a non-consenting party, the fetus. And given that really important moral difference…between abortion and all the other rights that the Court has recognized under the labels of privacy or autonomy in the past, we can't say that abortion gets protection just by being connected to those other rights.
JR: You’ll remember that one of the strongest arguments put forth by the abortion facility was stare decisis, the doctrine that says courts should stick with what they’ve decided before. The Dobbs opinion analyzes each factor the court must consider before throwing out precedent:
GIRGIS: Factors like how badly reasoned was the precedent? What kinds of harm has the precedent done on other areas of law, or in the real world or on the judiciary? And to what extent if people relied on the precedent in such a way that if you removed that they would be much worse off than they would have been if the precedent never existed to begin with. That's called reliance interests.
MR: About that reliance aspect: Girgis explained why reliance as a legal tool is an odd way to analyze abortion:
GIRGIS: …let's say you've undertaken a transaction, you bought a piece of property or something, and then precedents are overturned, and the law changes in a way that reduces the value of that transaction? Well, now you're worse off than you would have been if that precedent had never existed, because you wouldn't have undertaken the transaction if the precedent were never on the books. And now we pulled the rug out from under you so now you're stuck. …that kind of Reliance was not really an issue here. Because … reproductive planning can take immediate account of that change, you can begin to contracept. You can use natural family planning methods. You can change your choices in a way that will still leave you free to avoid pregnancy.
MR: Let’s leave opinion analysis for a moment, and hear from a legal scholar who supports the outcome of Roe but thinks it was poorly reasoned: Yale law professor Akhil Amar. Here he is on the podcast hosted by Mark DiCarlo, History as it Happens.
AKHIL AMAR: I happen to be personally pro choice, but I'm very critical of Roe versus Wade as a judicial expedition. I think it made stuff up.
MR: Indulge a bit of a rabbit trail here, albeit a very interesting one. Amar draws a comparison of the high court’s reasoning in both slavery and abortion cases. He uses the infamous dispute over slavery in Dred Scott v Sandford from 1857. (Amar mentions “feti.” That’s the plural of “fetus.”)
AMAR: Let's just go through the eerie parallels. Dred Scott says, blacks can't be citizens. Roe versus Wade says feti are not persons...Dred Scott takes an issue where states disagree and nationalizes it, comes up with a national rule and to the critic’s mind, comes up with an immoral national rule: slavery everywhere, or at least very broadly. Well, to a pro-life person that's what Roe does. It takes an issue where states are disagreeing and nationalizes the anti life position. What they would think is the immoral position.
JR: And there are more parallels.
AMAR: Dred Scott makes the Republican Party platform unconstitutional… Lincoln's vision is to prohibit slavery in the territories. And Dred Scott says that's unconstitutional. Well, Roe says today's Republican Party platform is unconstitutional, because for the last 40 years, the Republican Party platform has been pro life.
JR: Amar says couching a right to abortion within privacy rights as Roe did is not sound legal reasoning:
AMAR: But here's why privacy is awkward. First, it kind of assumes away the status of the fetus. And if you think that a microscopic clump of cells is really kind of morally, nothing at three weeks post conception, okay. But what about actually an unborn human being 33 weeks post conception? Perfectly viable and could be delivered alive. Okay, so privacy is an awkward way of talking about an issue where there's another moral entity. That's point one.
JR: Point two?
AMAR: It's also an awkward way of talking about a procedure that typically takes place outside the home, involving a stranger, a medical professional that you've maybe never met before, will never meet again, money is changing hands. This is rather different than two married couples choosing to use contraception where there's no life and being in the inner sanctum of their marital bedroom in a private place involving just the two of them.
Amar says we know one unenumerated right is the right to reproduce. The founding documents basically say we are all born equals, regardless of ethnicity, IQ, or anything else.
AMAR: That's a profound, radical thought. We're created equal in the language of the Declaration of Independence.
So if abortion doesn’t fit under the privacy rights of the 14th amendment, then where does it fit? We return to Professor Girgis on the Dobbs majority opinion:
GIRGIS: The most common alternative that's been discussed is the equal protection clause. That clause says that you can't deny to any person the equal protection of the laws. And the argument has been that abortion bans deny women equal protection because it imposes a burden on them that it doesn't impose on men.
The difficulty there is equal protection doesn’t require treating men as women or women as men. Unless…
GIRGIS: Unless you find animus. Plus the fact that we can easily explain opposition to abortion, apart from animus, the result is there's no equal protection violation here.
Justice Kavanaugh wrote a concurrence to clarify a few things.
GIRGIS: Justice Kavanaugh simply notes that this decision only returns the issue to the states. So New York can still have a very pro choice law on the books and Mississippi can have a much more pro life one….So his concurrence is mostly designed to tell you, look, this is a big deal. But it's not as big a deal as you might think. Because I don't think that there's a constitutional right to life for the unborn. So I don't think laws permitting abortion are themselves unconstitutional. I don't think pro life states can stop women from leaving them to get an abortion elsewhere. And I think Congress as well as the states can now make their own political decisions about this issue.
JR: Justice Clarence Thomas also wrote a concurrence.
GIRGIS: Justice Thomas said, I agree with everything that the majority opinion says. But I also want to step back to question a broader premise. Not only are abortion cases but also the cases involving contraception, involving a right to engage in same sex sexual intimacies, right to same sex marriage and so on. All of them rest, in part, on a concept called substantive due process. And he thinks that concept is bunk, which means that we have to go back and re examine not only the abortion cases, but also any of those other cases, and see if that if the rights that was found in those cases could rest on a different ground or not. And if it can't, then we got to get rid of it.
JR: To be clear, the majority opinion denies the idea that other established rights could be undone. Another case frequently cited in the Dobbs briefs was a 1997 decision called Washington v Glucksberg. That case asked whether a constitutional right exists to assisted suicide. The majority opinion in Dobbs faced that head on. Just as with abortion, nothing is explicitly mentioned in the Constitution about assisted suicide. Is it an unwritten right?
GIRGIS: But how do we tell which unwritten rights do or don't exist? …the way we're going to tell it is by looking at whether the asserted right is deeply rooted in our history and traditions. And then step three, the court looked at history, the common law that we inherited from England, federal and state statutory laws, especially state statutes. And it said, not only has there never been a suggestion that there was a right to assisted suicide, assisted suicide was massively regulated across the board at all stages and all these locations for centuries. So there's no deeply rooted right to it. So there's no unwritten right. So there's no constitutional right.
MR: That’s the same analysis the court went through in Dobbs. Now what about the dissenters, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor? They mostly agree there’s no deeply rooted history of protection for abortion. But they accuse the majority of abandoning principles of stare decisis and hurting poor women. And they say the main reason for overturning Dobbs now isn’t due to new scientific developments or changes in society; they say it’s because of changes to who makes up the court.
GIRGIS: But for the most part…they just say that we should have stuck to the right in this case, under the principle of stare decisis, the idea that you don't overturn precedent lightly. It then goes through the practical harms that it thinks will follow from the Dobbs decision.
JR: To reiterate: abortion was not made illegal by the Supreme Court. It’s up to individual states to regulate the procedure. Abortion minded women in some states will have easier access to it than women in some other states. Unborn babies will be at grave risk, more so in some states than others.
MR: The Supreme Court in Dobbs washed its hands of a divisive ruling that only inflamed the country in the aftermath of Roe. The national war now splinters into 50 smaller battles. Back in Mississippi, from where the Dobbs dispute first arose, Attorney General Lynn Fitch has a vision for the future, a culture of life. A practical approach:
ATTORNEY GENERAL LYNN FITCH: This is a challenge for all of us, not only in my state, but across the country, to work to truly empowering women and supporting life. So one of the first things that I think should be on the the action item list is making childcare more affordable and accessible. You know, it shouldn't cost more to send a toddler and an infant, to childcare for a year than it does to send a child to public college, but it currently does.
JR: Fitch ticks off lots of other ideas for creating a life culture that welcomes children: like workplace flexibility for mothers and fathers, and better enforcement of child support.
FITCH: You know, for too long, women have borne the financial burdens of parenting alone. And honestly, fathers should be least held equally responsible. It's very hard for these struggling families to make ends meet. And it's the mother primarily carrying that burden. And you find on the studies, if fathers will pay and if they're more engaged, then guess what? They're paying their child enforcement makes them invested in their child. And that in itself creates stronger families. …And I think this is very important, because again, it empowers these women.
JR: Streamlining adoption and foster care is another place to improve policy and procedures. Overall, Fitch is working for a holistic approach to policy, to rehabilitate the family and restore human dignity:
FITCH: …I think we asked for the job. We asked the United States Supreme Court to turn it back over to us, to give us, the people, the power to make decisions about abortion. And with that comes empowering women and promoting their children. So are these hard discussions? Absolutely. Are they actions we need to take? Absolutely. And we need to start on these sooner than later.
MR: We will end as we began, with the voice of Dr. Bernard Nathanson, co-founder of NARAL but later an advocate for the unborn. Nathanson said destruction of a living human being is no solution to what is basically a social problem.
That caught my ear, because that’s what many on the pro-choice side said: we have a social problem in that women and children need support, fathers need incentives to be responsible, government and society must coalesce to support the next generation.
Dr. Nathanson said Planned Parenthood was part of a conspiracy of silence as to the true nature of abortion. And he challenged the organization to show the film to women for full, informed consent before they abort.
DOCTOR BERNARD NATHANSON: I think we should all here and now devote ourselves to an untiring effort to devise a better solution. A solution compounded equally of love and compassion and a decent regard for the overriding priority of human life. Let's all for humanity's sake, here and now, stop the killing.
MR: Legal Docket is produced by the creative team at WORLD Radio. I’m Mary Reichard.
JR: And I’m Jenny Rough.
MR: We’re the hosts each week and we write the scripts. Our script editors are Nick Eicher and Paul Butler, who is also our producer. Lillian Hamman gave us audio assistance.
JR: We want to thank those who took time to help us understand their perspective: Lawyers Erica Harris and Kristen Waggoner. Renee Bracey of We Testify. Sherif Girgis for opinion analysis. Law professor Carter Snead and attorney Heather Hacker for background information.
MR: Also, Mississippi Attorney General Lynn Fitch. Supremecourt.gov for court audio. Mark di Carlo and Akhil Amar on the podcast History as it Happens. And the makers of the 1984 short film, The Silent Scream.
JR: We have two more episodes in this season three of Legal Docket Podcast. Your feedback means a great deal to us and helps fuel future seasons. We’d appreciate hearing from you at firstname.lastname@example.org.
MR: If you value this podcast, please share it! Jenny and I and the entire team thank you for listening.
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