WEBVTT - How Roe v Wade Fell and What Comes Next with Jodi Kantor 0:00:05.240 --> 0:00:08.559 Hi everyone. I'm Katie Couric and this is next question. 0:00:14.000 --> 0:00:17.520 My name is Jennifer Adkins. I am from Caldwell, Idaho, 0:00:18.120 --> 0:00:21.920 and in early twenty twenty three, we discovered that we 0:00:21.920 --> 0:00:25.880 were pregnant with our second child, and at our twelve 0:00:25.920 --> 0:00:30.920 week appointment, we got the devastating news that our fetus 0:00:31.000 --> 0:00:35.080 was not viable, that the baby had Turner syndrome, which 0:00:35.120 --> 0:00:39.599 means she was missing an X chromosome, and that not 0:00:39.680 --> 0:00:42.720 only was she not likely to survive the pregnancy, but 0:00:43.120 --> 0:00:47.160 that I was at risk of developing life threatening complications 0:00:47.600 --> 0:00:51.360 on top of that. Because we live in Idaho and 0:00:51.760 --> 0:00:55.520 this was at a time after Roe versus Wade was overturned, 0:00:56.120 --> 0:00:58.840 we were unable to terminate the pregnancy in the state 0:00:58.840 --> 0:01:03.800 of Idaho, and our physicians were unable to refer us 0:01:03.840 --> 0:01:07.560 out of state, so we were forced to find that 0:01:07.920 --> 0:01:11.080 appointment on our own and find a clinic willing to 0:01:11.160 --> 0:01:14.160 do the procedure and travel out of state in order 0:01:14.200 --> 0:01:19.960 to terminate our very wanted but not viable pregnancy. So 0:01:20.000 --> 0:01:23.240 we went to Portland, and even though they provided the 0:01:23.240 --> 0:01:26.080 best possible care that they possibly could, and they were 0:01:26.160 --> 0:01:29.720 lovely and they took excellent care of us. It's still 0:01:30.880 --> 0:01:34.000 hard to not be surrounded by the people that you 0:01:34.120 --> 0:01:37.759 love and trust and care about and that love you 0:01:37.880 --> 0:01:41.840 and care about you, and to meet all new providers, 0:01:42.120 --> 0:01:45.200 a whole new doctor nurse team, and have to go 0:01:45.280 --> 0:01:51.720 through this alone with strangers. Losing a child is devastating 0:01:52.080 --> 0:01:55.280 for any family and to put that out for the 0:01:55.320 --> 0:02:00.080 world to kind of scrutinize and make judgment on and 0:02:00.520 --> 0:02:03.320 you know, say mean things about us. But we knew 0:02:03.320 --> 0:02:06.240 it was also necessary because we knew we had the 0:02:06.280 --> 0:02:08.160 capability to do it, and there are. 0:02:08.080 --> 0:02:09.640 So many people that don't. 0:02:09.960 --> 0:02:13.320 And if we can help use our voice to help 0:02:13.360 --> 0:02:17.880 protect those people and to protect future families from this 0:02:18.000 --> 0:02:20.200 happening to them, that's what we want to do. 0:02:22.240 --> 0:02:23.720 My name is Samantha Casiano. 0:02:23.960 --> 0:02:27.280 I'm twenty nine years old and I'm originally from Houston, Texas. 0:02:27.560 --> 0:02:30.240 When I became pregnant, this was not my first baby. 0:02:30.280 --> 0:02:32.960 This is actually my fifth child. When I went in 0:02:33.000 --> 0:02:35.600 for my twenty week scant, you know, they pick up 0:02:35.639 --> 0:02:37.920 your shirt, they rub the gel on your belly, and 0:02:37.960 --> 0:02:40.800 everything goes well. We're having a conversation and then all 0:02:40.840 --> 0:02:43.560 of a sudden, it goes quiet. They go on to 0:02:43.600 --> 0:02:45.800 tell me that they were sorry to tell me, but 0:02:45.919 --> 0:02:49.280 my daughter has been diagnosed with pennaceph lee, which means 0:02:49.280 --> 0:02:52.280 that my daughter'skull is not fully developed and her brain 0:02:52.320 --> 0:02:53.360 is not fully developed. 0:02:54.240 --> 0:02:57.040 And I felt like this has to be a dream, 0:02:57.360 --> 0:03:02.400 this is not right, with no way, and I immediately. 0:03:02.120 --> 0:03:05.120 Just start to cry. After I spoke to my doctor, 0:03:05.200 --> 0:03:07.400 I just kind of thought, what do I do? What 0:03:07.480 --> 0:03:10.560 can I do? Like, what options do I have? My 0:03:10.600 --> 0:03:12.560 doctor just told me I don't have any options after 0:03:12.639 --> 0:03:13.160 be pregnant. 0:03:13.320 --> 0:03:18.400 There has to be something. And afterwards I go on to. 0:03:18.280 --> 0:03:20.079 See if I can maybe go out of state, but 0:03:20.880 --> 0:03:24.840 the cost was crazy and childcare and I work, my 0:03:24.919 --> 0:03:28.919 husband works. It just didn't work for us, which is 0:03:29.000 --> 0:03:31.560 sad because you know, you would think in your hometown 0:03:32.120 --> 0:03:34.360 you'd be able to get the healthcare that you need, 0:03:34.840 --> 0:03:38.240 and that wasn't there for us. And after I gave birth, 0:03:38.600 --> 0:03:40.560 she was with us for four hours and when I 0:03:40.640 --> 0:03:43.920 told you she was grasping for air, she was just 0:03:43.920 --> 0:03:46.520 just like using her whole mouth was open and she 0:03:46.640 --> 0:03:49.840 was grasping for air, and they gave her morphine, and 0:03:49.880 --> 0:03:52.360 that hurt even more because you know, to see your 0:03:52.400 --> 0:03:55.800 little baby get morphine MORPHINEUS. It's morphine. 0:03:56.320 --> 0:03:58.840 So it was heartbreaking. 0:04:00.000 --> 0:04:03.080 At the very beginning, I wanted to be anonymous, and 0:04:03.280 --> 0:04:04.680 that changed as soon as. 0:04:04.520 --> 0:04:07.720 I met my daughter and saw how she suffered. 0:04:08.240 --> 0:04:10.560 I am going to do whatever I can to make 0:04:10.560 --> 0:04:12.880 sure that no mother, no other baby has to go 0:04:12.960 --> 0:04:16.600 through this ever again. My daughter died in her father's hands, 0:04:17.160 --> 0:04:21.960 and it took him an emotional roller coaster to have 0:04:22.080 --> 0:04:25.359 to go through that no family should have to go 0:04:25.480 --> 0:04:25.800 through that. 0:04:30.200 --> 0:04:32.240 This is what it was like for these women who 0:04:32.320 --> 0:04:35.800 tried to get an abortion last year. How did we 0:04:35.920 --> 0:04:40.600 get here? This month marks fifty one years since Roe v. 0:04:40.760 --> 0:04:45.640 Wade enshrined the federal right to abortion. In twenty twenty two, 0:04:46.000 --> 0:04:48.880 as we all know, that right was abolished by the 0:04:49.000 --> 0:04:53.960 US Supreme Court. The ruling, driven by Justice Samuel Alito, 0:04:54.360 --> 0:04:57.159 took away the constitutional right to choose to have an 0:04:57.200 --> 0:05:01.600 abortion and gave that authority to the people and their 0:05:01.640 --> 0:05:08.080 elected representatives. Now, doctors are afraid, and as we just heard, 0:05:08.440 --> 0:05:12.480 the consequences for women looking to terminate a pregnancy has 0:05:12.640 --> 0:05:17.119 often been herowing. Today, New York Times Pulitzer Prize winning 0:05:17.200 --> 0:05:21.680 investigative reporter Jody Canter explains what was really going on 0:05:21.920 --> 0:05:27.080 inside the Supreme Court when Roe was overturned. Jody is 0:05:27.120 --> 0:05:31.160 a top notch reporter responsible for breaking many me too 0:05:31.200 --> 0:05:35.920 stories alongside her colleague Megan Tuey. Now she's teamed up 0:05:36.040 --> 0:05:39.920 with another colleague, Adam Liptak, and the result is an 0:05:39.960 --> 0:05:46.960 astonishing feat of meticulously sourced reporting with surprising details. Here's 0:05:47.000 --> 0:05:52.120 my conversation with Jody Canter. Jody, I am so thrilled 0:05:52.160 --> 0:05:55.680 to have you on the podcast. You are such an intrepid, 0:05:56.080 --> 0:06:00.839 excellent reporter, and your piece on how the Supreme Court 0:06:00.960 --> 0:06:07.080 overturned ro V Wade was I think a masterclass in reporting. 0:06:07.240 --> 0:06:10.279 First and foremost, How did you get the idea to 0:06:10.400 --> 0:06:13.560 really dig into this because it was no easy task. 0:06:14.160 --> 0:06:17.039 Well, thank you so much, Katie. Adam Liptak and I 0:06:17.120 --> 0:06:19.760 just wanted to understand what had really happened. This is 0:06:19.920 --> 0:06:23.160 one of the most consequential decisions of our time. You know, 0:06:23.320 --> 0:06:26.880 you're talking today about the effect on women's lives, on 0:06:26.920 --> 0:06:30.160 whether or not they have children, but also it's transformed 0:06:30.440 --> 0:06:35.720 who's elected in this country, how medicine is practiced, and 0:06:36.240 --> 0:06:39.200 the court is pretty opaque. You know, on the one hand, 0:06:39.279 --> 0:06:43.640 they have oral arguments, the issue written opinions, so we 0:06:43.680 --> 0:06:46.800 can understand some of their thinking, but the question of 0:06:47.279 --> 0:06:52.160 how is the law, and especially something this epic really 0:06:52.240 --> 0:06:55.920 decided is often a mystery, And in fact their papers 0:06:56.480 --> 0:07:00.440 stay sealed for so long that the written records may 0:07:00.480 --> 0:07:02.839 not come out until some of us are dead. So 0:07:02.960 --> 0:07:06.240 Adam and I plunged in and just ask the basic questions. 0:07:06.760 --> 0:07:08.920 You know, how do the nin injustices go about doing 0:07:08.960 --> 0:07:09.920 something so big? 0:07:10.240 --> 0:07:13.640 How challenging was that? Jody? I mean, I can't imagine 0:07:14.160 --> 0:07:19.680 being tasked with really unraveling every aspect of this decision. 0:07:20.160 --> 0:07:23.200 So how did you go about reporting this? And how 0:07:23.240 --> 0:07:26.880 many foyas did you have to do? It's a great question. 0:07:27.000 --> 0:07:30.480 We did zero foyas because the Supreme Court is exempt 0:07:30.480 --> 0:07:33.760 from foya. Foya, of course, is the usual means by 0:07:33.760 --> 0:07:36.560 which the public, including journalists, can find out what's what 0:07:36.640 --> 0:07:37.480 the government is doing. 0:07:37.480 --> 0:07:39.160 Why don't you explain what foyas are? 0:07:39.360 --> 0:07:42.960 It's basically a written request to a government entity saying 0:07:43.160 --> 0:07:45.880 will you please show us these emails or these records 0:07:45.920 --> 0:07:48.760 because the public has a right to know. The Supreme 0:07:48.840 --> 0:07:52.920 Court is exempt from that. So there were some public 0:07:52.960 --> 0:07:56.320 records that we could rely on, and every case is 0:07:56.360 --> 0:08:01.679 a story, right, litigation is an narrative, and the Dobbs 0:08:01.720 --> 0:08:06.080 litigation is especially interesting because, Katie, I'm going to say 0:08:06.080 --> 0:08:09.560 it a little impolitely, this case was a nothing burger 0:08:10.000 --> 0:08:13.640 when it first emerged. It was this Mississippi law that 0:08:13.760 --> 0:08:18.680 was blatantly unconstitutional when it was passed because it contradicted Roe, 0:08:18.920 --> 0:08:21.600 it didn't look like it had a chance, especially because 0:08:21.760 --> 0:08:23.920 Justice Ginsburg was still on the court. 0:08:24.120 --> 0:08:26.560 Tell us a little more about the Mississippi law and 0:08:26.680 --> 0:08:27.680 what it stated. 0:08:28.080 --> 0:08:33.000 So basically, what Mississippi wanted to do is they wanted 0:08:33.160 --> 0:08:39.160 to permit women to have abortions only before fifteen weeks. 0:08:39.400 --> 0:08:42.320 So it doesn't sound that controversial on the face of it, right, 0:08:42.480 --> 0:08:47.120 because most abortions do occur before fifteen weeks. But the 0:08:47.160 --> 0:08:50.840 reason why it was so provocative is that the Supreme 0:08:51.000 --> 0:08:54.680 Court for many, many, many years had held that you 0:08:54.760 --> 0:08:59.720 can't restrict abortion before viability, before say twenty three weeks, 0:09:00.679 --> 0:09:03.360 and that had been secret for a long time. So 0:09:03.480 --> 0:09:07.000 really what they were saying was, we want to change 0:09:07.040 --> 0:09:12.960 the rules of when abortion restrictions are permitted. So two 0:09:13.040 --> 0:09:16.360 federal courts said no, said you can't do this, and 0:09:16.400 --> 0:09:19.680 they made a last ditch appeal to the Supreme Court 0:09:20.280 --> 0:09:23.760 when Justice Ginsburg was still alive and it looked like 0:09:23.760 --> 0:09:27.439 they had no chance, and then Justice Skinsburg died and 0:09:27.480 --> 0:09:28.439 everything changed. 0:09:28.720 --> 0:09:33.559 In fact, that was a huge turning point for really 0:09:33.640 --> 0:09:36.080 the ethos of the Court. Before we get into that, 0:09:36.160 --> 0:09:38.840 I just wanted to ask you a couple of other 0:09:38.920 --> 0:09:44.319 quick questions about the actual reporting. You had a difficult 0:09:44.360 --> 0:09:49.600 time finding sources because everything is so tightly held there. 0:09:49.679 --> 0:09:53.760 It's like a secret society in a way, right, Jody, 0:09:53.920 --> 0:10:00.160 And anyone who kind of shares information is shun and 0:10:00.520 --> 0:10:03.400 if it's discovered who they are. Right, Can you talk 0:10:03.440 --> 0:10:06.080 about kind of the culture of the Supreme Court, because 0:10:06.120 --> 0:10:07.840 it's so fascinating. 0:10:07.400 --> 0:10:09.920 It's correct to work there is pretty much to take 0:10:09.960 --> 0:10:13.599 a vow of silence. So it's a pretty dramatic situation 0:10:13.760 --> 0:10:16.640 because no matter who you are at the Court, if 0:10:16.679 --> 0:10:21.959 you have access to the deliberative process, you are confronting 0:10:22.040 --> 0:10:24.880 some of the hardest issues in American life. That's what 0:10:24.960 --> 0:10:27.600 the Court is doing right now. They're taking on all 0:10:27.640 --> 0:10:31.200 of these very controversial, hot button topics, and yet you 0:10:31.240 --> 0:10:35.120 can't tell anybody what you've seen. And also there's no 0:10:35.600 --> 0:10:40.160 accountability for these nine people, they have lifetime appointments, and 0:10:40.240 --> 0:10:44.920 nobody is anybody else's boss there among the justices. Meaning 0:10:45.559 --> 0:10:48.040 we look at Chief Justice John Roberts and he looks 0:10:48.080 --> 0:10:50.720 like he's in charge in many ways, but he's really not. 0:10:51.320 --> 0:10:53.840 He's really not. He's the administrator of the court and 0:10:53.960 --> 0:10:56.120 of the federal courts, but he really doesn't have a 0:10:56.160 --> 0:10:59.559 lot of leverage over the other justices. And so then, 0:10:59.600 --> 0:11:02.520 to make things even more difficult, Adam and I were 0:11:02.520 --> 0:11:06.280 reporting in the shadow of a leak investigation, of course. 0:11:06.160 --> 0:11:09.640 Right, so they were even more paranoid to talk to you, right, 0:11:10.080 --> 0:11:12.280 anyone associated with the court. 0:11:12.440 --> 0:11:15.800 It was very difficult. But as you know, that's why 0:11:15.840 --> 0:11:19.480 we do. We weren't doing it just for the sake 0:11:19.679 --> 0:11:22.720 of breaking open the silence. We were doing it to 0:11:22.800 --> 0:11:27.839 try to illuminate the court, to help us understand this 0:11:27.920 --> 0:11:32.800 critical institution, and to provide some function of accountability. I mean, 0:11:33.440 --> 0:11:35.640 as you know, we've both done this our whole lives. 0:11:35.679 --> 0:11:39.120 In journalism, probably the most basic function of journalism in 0:11:39.160 --> 0:11:42.120 a democracy is to just keep an eye on elected officials. 0:11:42.480 --> 0:11:45.800 It's why in a small town you want a journalist 0:11:45.880 --> 0:11:49.120 sitting there at a school board meeting or watching the mayor, 0:11:49.559 --> 0:11:52.440 because you want to say, a representative of the people 0:11:52.960 --> 0:11:58.520 is independently, not with government support, watching these government officials 0:11:58.559 --> 0:12:00.560 to be able to see what they do. And so 0:12:00.760 --> 0:12:03.559 in some ways we were just fulfilling that very basic function. 0:12:03.920 --> 0:12:07.000 Getting back to the Mississippi long curious Jody, and this 0:12:07.120 --> 0:12:10.720 is a bit of a quick left turn. Has viability 0:12:10.920 --> 0:12:14.199 changed with technology? I guess that's one of the questions 0:12:14.559 --> 0:12:18.480 if in fact this twenty three week window has been 0:12:18.520 --> 0:12:21.160 protected for a long time by the Supreme Court, Has 0:12:21.240 --> 0:12:26.440 technology and modern medicine in fact allowed fetuses to live 0:12:26.960 --> 0:12:31.080 even if they are less than twenty three weeks old. 0:12:31.120 --> 0:12:32.600 I don't even know the answer to that. 0:12:32.760 --> 0:12:34.520 I mean, I'm not a doctor, but I can tell 0:12:34.559 --> 0:12:38.320 you that Roe has always been a controversial decision, even 0:12:38.520 --> 0:12:41.319 among liberals, and as you know, the fights about abortion 0:12:41.400 --> 0:12:44.200 are just epic. And I think there has been some 0:12:44.320 --> 0:12:47.680 legal wrangling over whether the viability rule is smart because 0:12:47.800 --> 0:12:52.960 viability can change, right, But the I don't think that 0:12:53.080 --> 0:12:56.480 was really what was happening with Dobbs. What happened with 0:12:56.640 --> 0:13:00.560 Dobbs is that the composition of the court change and 0:13:00.720 --> 0:13:03.000 big time. Yeah, I mean often you have a Supreme 0:13:03.000 --> 0:13:05.640 Court that's stable for years and years at a time 0:13:05.720 --> 0:13:10.199 because of these lifetime appointments. But very quickly, from Justice 0:13:10.200 --> 0:13:14.360 Scalia's death in twenty sixteen up until very recently, you're 0:13:14.400 --> 0:13:17.560 looking at a court that's been repopulated and mostly with 0:13:17.640 --> 0:13:18.800 conservative justices. 0:13:19.000 --> 0:13:23.400 Well, let's pick up with Justice Ruth Bader Ginsberg's death. 0:13:24.080 --> 0:13:28.040 She was sort of a firewall in terms of a 0:13:28.120 --> 0:13:33.760 case like this, even being heard. She passes away. What happens, 0:13:35.080 --> 0:13:36.160 She passes. 0:13:35.800 --> 0:13:38.480 Away just as the justices are about to take their 0:13:38.520 --> 0:13:41.680 first preliminary look at Dobbs. And as you know, the 0:13:41.720 --> 0:13:45.720 Supreme Court operates in two phases. The first level of 0:13:45.760 --> 0:13:48.679 discussion is about whether the justices should take the case 0:13:48.720 --> 0:13:52.199 at all. The second level of discussion is if they 0:13:52.240 --> 0:13:56.120 take it is actually about deciding the case. So, in 0:13:56.400 --> 0:14:00.920 very quick succession, Dobbs goes on the discussion list. Justice 0:14:01.000 --> 0:14:05.439 Ginsburg dies with weeks until the twenty twenty presidential election, 0:14:06.640 --> 0:14:11.680 in the final days really of President Trump's term. He 0:14:11.920 --> 0:14:17.160 replaces Justice Skinsburg with Amy Coney Barrett, who is known 0:14:17.360 --> 0:14:21.400 to disagree with abortion. She's basically a favorite of the 0:14:21.440 --> 0:14:25.240 anti abortion movement and young and young and shuffled on 0:14:25.280 --> 0:14:30.840 the Court in record time, a very quick nomination process. 0:14:31.080 --> 0:14:35.360 So she's coming onto the scene even as President Trump 0:14:35.440 --> 0:14:39.480 is being shuffled out of the White House and then. 0:14:39.440 --> 0:14:41.360 The Court they're trying to shuffle him out. 0:14:41.200 --> 0:14:44.360 Of the well exactly as he loses the presidential election, 0:14:44.480 --> 0:14:46.720 is a better way to say it. And so the 0:14:46.800 --> 0:14:50.080 Court is sitting there with this very hot button case. 0:14:50.480 --> 0:14:54.240 And then it's in January of twenty twenty one, in fact, 0:14:54.280 --> 0:14:59.040 two days after the January sixth insurrection, that the justices 0:14:59.120 --> 0:15:03.800 have the first conversation about whether to take Dobs or not. 0:15:04.200 --> 0:15:07.600 And this very new justice, Justice Barrett, has to decide 0:15:07.640 --> 0:15:07.960 what to. 0:15:07.920 --> 0:15:10.800 Do, and she doesn't want to take it. She's very 0:15:10.840 --> 0:15:13.560 hesitant at first. What we were able to report is 0:15:13.600 --> 0:15:16.480 that she initially votes to grant that means to give 0:15:16.480 --> 0:15:19.840 it the green light, but she voices some objections, some concerns, 0:15:20.640 --> 0:15:22.640 you know, and she says, I'm really new here. 0:15:22.800 --> 0:15:26.040 I just got here. The composition of the court just changed. 0:15:26.120 --> 0:15:29.520 That will change. And she says at that point Justice 0:15:29.560 --> 0:15:32.120 Alito and a few of the others want to hear 0:15:32.160 --> 0:15:34.760 the case very soon. They want to hear it that 0:15:34.920 --> 0:15:38.520 term meaning a year before it was actually held, so 0:15:38.560 --> 0:15:42.640 they are ready to move with those justices with this 0:15:42.760 --> 0:15:46.880 colossal president. Justice as Alito, Thomas, and Gorsich all wanted 0:15:46.880 --> 0:15:49.640 to hear it very quickly, and she says, if you 0:15:49.720 --> 0:15:52.760 go and do that, I'm going to change my grant 0:15:52.880 --> 0:15:56.800 vote to a deny. And then weeks later that's what 0:15:56.840 --> 0:15:59.880 she actually does, she votes against taking the case. So 0:16:01.080 --> 0:16:03.720 it's important to remember when we look at it. To 0:16:03.760 --> 0:16:06.520 go back to your original question, Katie, how did this happen? 0:16:07.480 --> 0:16:09.520 One of the key facts I'm going to tell you 0:16:10.000 --> 0:16:13.920 is that this case was greenlighted by a minority. 0:16:13.400 --> 0:16:14.000 Of the court. 0:16:14.840 --> 0:16:18.360 Two conservative justices did not want to take it, Justice 0:16:18.440 --> 0:16:22.600 Roberts and Justice Barrett, and it was all men who 0:16:22.640 --> 0:16:28.040 greenlighted this case, and they overrode the objections of every 0:16:28.080 --> 0:16:30.840 woman on the court, conservative and liberal. 0:16:31.760 --> 0:16:35.320 What was Justice Kavanaugh's role in this, because he was 0:16:35.560 --> 0:16:37.840 a bit of a fly in the ointment for the 0:16:37.880 --> 0:16:42.320 conservative justices, right, Well, or is that overstating it? 0:16:42.440 --> 0:16:45.160 Well, I think it's open to interpretation. Let's see what 0:16:45.200 --> 0:16:47.600 happened and then we can interpret it. So they're sitting 0:16:47.600 --> 0:16:52.240 there on January eighth, two days after this rupture in 0:16:52.280 --> 0:16:57.520 American democracy, they have to decide whether to take the 0:16:57.560 --> 0:17:00.240 case or not. It seems like they have the votes 0:17:00.320 --> 0:17:03.640 to go ahead. But then at a subsequent meeting soon afterwards, 0:17:03.800 --> 0:17:07.040 Justice Kavanaugh says, we should relist this case. 0:17:07.400 --> 0:17:08.160 What does that mean? 0:17:08.320 --> 0:17:11.960 It means we should just punt or pretend that we're 0:17:12.000 --> 0:17:15.760 punting because we have the votes to go ahead, but 0:17:16.200 --> 0:17:19.000 the time, like Justice Barrett has already said, the timing 0:17:19.280 --> 0:17:22.840 wasn't right for her. So what he's suggesting is just 0:17:23.119 --> 0:17:26.200 keep it on like a TBD list in. 0:17:26.160 --> 0:17:28.280 The double put it on the docket if you will 0:17:28.400 --> 0:17:31.280 keep it on the docket because as on me or 0:17:32.080 --> 0:17:35.840 don't say that we're going ahead even though we privately 0:17:36.000 --> 0:17:38.600 know that we have the votes to grant. 0:17:38.920 --> 0:17:41.640 And he says, this will allow us to watch cases 0:17:41.720 --> 0:17:47.440 play out in the lower courts. And so that's what happens, 0:17:47.480 --> 0:17:50.000 and that also opens, you know, a kind of window 0:17:50.040 --> 0:17:53.119 of persuasion. Some of the justices who don't want to 0:17:53.160 --> 0:17:55.880 take it go to work on Justice Barrett and Justice Kavanaugh, 0:17:56.119 --> 0:17:59.040 and as we know, Justice Barrett changes her vote. So 0:17:59.119 --> 0:18:02.480 what was he really doing there? Was he saying? I 0:18:02.480 --> 0:18:06.800 think the most obvious interpretation is that he really wanted 0:18:06.880 --> 0:18:09.040 to take this case. He was in favor of it, 0:18:09.359 --> 0:18:12.080 but he wanted more time. He wanted it to look 0:18:12.520 --> 0:18:15.480 as if they were moving more slowly than they really were. 0:18:16.280 --> 0:18:19.920 I guess there's another you know, there's another possible interpretation, 0:18:20.640 --> 0:18:23.679 but it's hard to know what he really thought. I 0:18:23.720 --> 0:18:27.560 guess there's an interpretation also that he was buying time. Well, 0:18:27.640 --> 0:18:30.600 that makes sense to me now, you know, the reporting 0:18:30.680 --> 0:18:34.200 indicates that he wanted to go ahead. But we can't 0:18:34.200 --> 0:18:37.480 read the Justice's minds. We don't know what they were thinking, 0:18:37.560 --> 0:18:40.080 and it's all a game of poker inside that building. 0:18:44.720 --> 0:18:46.439 We have to take a quick break, but when we 0:18:46.520 --> 0:18:49.439 come back, we'll dig deeper into the dynamics of the 0:18:49.480 --> 0:18:53.439 court and the details of two cases that affected the 0:18:53.640 --> 0:19:01.120 Justice's decision to reconsider Row. If you want to get 0:19:01.160 --> 0:19:03.880 smarter every morning with a breakdown of the news and 0:19:04.040 --> 0:19:07.920 fascinating takes on health and wellness and pop culture, sign 0:19:08.040 --> 0:19:10.600 up for our daily newsletter Wake Up Call by going 0:19:10.600 --> 0:19:25.640 to Katiecouric dot com. Is Justice Alito sam Alito kind 0:19:25.640 --> 0:19:31.879 of the leader of this whole movement to overturn Roe v. Wade, 0:19:32.000 --> 0:19:35.160 Because I know Neil Gorsich decided he agreed with him 0:19:35.160 --> 0:19:39.439 only ten minutes after right, talk about the timing and 0:19:39.680 --> 0:19:43.560 how those two were really important figures and all this. 0:19:43.920 --> 0:19:48.480 So Justice Alito absolutely really propelled the court. He's one 0:19:48.480 --> 0:19:51.640 of nine justices. But when you look at the role 0:19:51.680 --> 0:19:55.320 he played first in rescheduling the case in the fall 0:19:55.400 --> 0:19:59.200 of twenty twenty, he wrote the majority opinion, it appears 0:19:59.240 --> 0:20:02.919 that he preservedulated it. We've seen evidence of some of 0:20:02.920 --> 0:20:06.120 the arguments he was making internally, and if you read 0:20:06.160 --> 0:20:09.280 his opinion, it's clear that he really wanted this to happen. 0:20:09.960 --> 0:20:15.399 So it's interesting he first shared his famous draft, the 0:20:15.480 --> 0:20:17.520 draft that made the law. This is also the draft 0:20:17.800 --> 0:20:22.280 that leaked in February of twenty twenty two. This is 0:20:22.320 --> 0:20:24.880 now the second phase, the phase where they're actually deciding 0:20:24.920 --> 0:20:28.600 the case. And he shared it with the full court 0:20:28.840 --> 0:20:33.399 one morning, and Justice Gorsuch did an interesting thing, which 0:20:33.440 --> 0:20:35.760 is he said, yes, I'm signing on to this, I've 0:20:35.840 --> 0:20:40.080 no changes, ten minutes after Justice Alito sent it around 0:20:40.400 --> 0:20:44.880 and it was a ninety eight page opinion. So does 0:20:44.920 --> 0:20:47.720 that mean he never even read the opinion before saying yes, 0:20:48.400 --> 0:20:50.400 I don't think so, we don't think so. 0:20:50.400 --> 0:20:51.520 So were they in kahoots? 0:20:51.720 --> 0:20:56.080 Well, it appeared that Justice Alito pre circulated the opinion 0:20:56.640 --> 0:21:00.800 among the majority before sharing it with the full which 0:21:00.840 --> 0:21:04.000 is not that unusual a thing to do. When you 0:21:04.080 --> 0:21:06.119 do that, you're trying to get buy in from the 0:21:06.160 --> 0:21:10.440 other justices. So he shared it with we think, we 0:21:10.800 --> 0:21:14.320 don't know exactly potentially, but it appears that he shared 0:21:14.359 --> 0:21:18.840 it with Justices Gorsage, Barrett at Kavanaugh, Thomas. Let's talk 0:21:18.880 --> 0:21:22.760 about the period of time between when the court agreed 0:21:22.760 --> 0:21:25.080 to hear the case and when they made the decision. 0:21:25.600 --> 0:21:28.879 Can you take people through sort of what happened, because 0:21:28.920 --> 0:21:31.879 I think it still is such a mystery for people 0:21:31.960 --> 0:21:33.320 how the court operates. 0:21:33.720 --> 0:21:34.040 Sure. 0:21:34.080 --> 0:21:37.320 Well, two, there's the thing that sort of was like 0:21:37.640 --> 0:21:40.520 expected and routine, and then there was a real wild 0:21:40.560 --> 0:21:43.639 card in there as well. So the routine thing is that, 0:21:44.920 --> 0:21:48.920 you know, okay, the justices are taking the case. There 0:21:48.920 --> 0:21:52.320 are months and months of planning and build up. Both 0:21:52.359 --> 0:21:56.440 sides are filing briefs. They're amicus briefs being filed by 0:21:56.880 --> 0:21:59.720 people who you know, agree with one side or the other. 0:22:00.080 --> 0:22:01.800 That's like friend of the court friends. 0:22:01.640 --> 0:22:04.439 Yeah, exactly, they're saying the court must do this. You know, 0:22:04.480 --> 0:22:09.120 for this reason, the lawyers are preparing their oral arguments 0:22:09.200 --> 0:22:12.600 because they're about to argue a historic case. So all 0:22:12.640 --> 0:22:18.959 of that is proceeding when boom, this Texas case comes along. 0:22:19.040 --> 0:22:23.560 That is extremely unorthodox. Here you have Mississippi trying to 0:22:23.600 --> 0:22:27.080 overturn Row. And by the way, during this time, Mississippi 0:22:27.200 --> 0:22:31.200 expanded its question. Its first brief early in the process 0:22:31.600 --> 0:22:34.720 said it's not necessary for the court to overturn Row 0:22:35.119 --> 0:22:38.040 to go ahead with this fifteen week rule by Mississippi. 0:22:38.520 --> 0:22:42.240 During this time period that we're talking about now they say, actually, 0:22:42.640 --> 0:22:46.280 we're trying to overturn all of Row. And this is 0:22:46.359 --> 0:22:49.040 kind of an unorthodox thing to do because they're changing 0:22:49.080 --> 0:22:52.199 the question. And Adam and I point out that there 0:22:52.200 --> 0:22:56.360 are other cases where the court is actually rejected the 0:22:56.520 --> 0:22:59.240 entire thing by saying to the lawyers, hey, you changed 0:22:59.280 --> 0:23:00.960 the question, it's cool. 0:23:00.760 --> 0:23:01.439 But they didn't. 0:23:01.560 --> 0:23:02.040 They didn't. 0:23:02.119 --> 0:23:04.600 So wait, let me just go back real quickly. They 0:23:04.680 --> 0:23:07.399 tried to change it from the fifteen week rule to 0:23:07.480 --> 0:23:10.800 what so Mississippi, when they pose the case say we're 0:23:11.080 --> 0:23:14.280 just trying to do this fifteen week cut off for abortions. 0:23:14.280 --> 0:23:18.440 We are it is not necessary to overturn Row. Then, 0:23:19.200 --> 0:23:24.200 during the merits phase, they file another brief saying, Justices, 0:23:24.720 --> 0:23:28.840 you've got to go all the way here an overturn row. 0:23:29.160 --> 0:23:33.360 It's like they sends to opportunity and expanded their question. Now, normally, 0:23:33.560 --> 0:23:35.919 I feel like I'm going on Michael Barbara on you. 0:23:36.080 --> 0:23:39.840 Normally you can't do that. You're saying that. A lot 0:23:39.880 --> 0:23:43.600 of times if it changes midstream, the justices or the 0:23:43.640 --> 0:23:45.719 court will say, no, you can't do that. 0:23:46.200 --> 0:23:51.120 You risk the justices dismissing the case as improvidently granted 0:23:51.160 --> 0:23:54.040 if you do that. However, in this case, it's at 0:23:54.080 --> 0:23:56.639 the justice's discretion, and in this case they went ahead. 0:23:56.800 --> 0:23:59.920 So what about this Texas law? So, even as mississid 0:24:00.119 --> 0:24:06.600 be is on its way to turn truro, Texas steps 0:24:06.600 --> 0:24:12.639 in with a much more provocative law than Mississippi's. Texas 0:24:12.720 --> 0:24:17.000 has what's called a heartbeat bill, banning abortion around the 0:24:17.080 --> 0:24:20.600 time you hear a heartbeats, which is six seven weeks. 0:24:21.080 --> 0:24:21.399 Now. 0:24:21.560 --> 0:24:23.400