Speaker 1: Hi everyone. I'm Katie Couric and this is next question.
Speaker 2: My name is Jennifer Adkins. I am from Caldwell, Idaho,
Speaker 2: and in early twenty twenty three, we discovered that we
Speaker 2: were pregnant with our second child, and at our twelve
Speaker 2: week appointment, we got the devastating news that our fetus
Speaker 2: was not viable, that the baby had Turner syndrome, which
Speaker 2: means she was missing an X chromosome, and that not
Speaker 2: only was she not likely to survive the pregnancy, but
Speaker 2: that I was at risk of developing life threatening complications
Speaker 2: on top of that. Because we live in Idaho and
Speaker 2: this was at a time after Roe versus Wade was overturned,
Speaker 2: we were unable to terminate the pregnancy in the state
Speaker 2: of Idaho, and our physicians were unable to refer us
Speaker 2: out of state, so we were forced to find that
Speaker 2: appointment on our own and find a clinic willing to
Speaker 2: do the procedure and travel out of state in order
Speaker 2: to terminate our very wanted but not viable pregnancy. So
Speaker 2: we went to Portland, and even though they provided the
Speaker 2: best possible care that they possibly could, and they were
Speaker 2: lovely and they took excellent care of us. It's still
Speaker 2: hard to not be surrounded by the people that you
Speaker 2: love and trust and care about and that love you
Speaker 2: and care about you, and to meet all new providers,
Speaker 2: a whole new doctor nurse team, and have to go
Speaker 2: through this alone with strangers. Losing a child is devastating
Speaker 2: for any family and to put that out for the
Speaker 2: world to kind of scrutinize and make judgment on and
Speaker 2: you know, say mean things about us. But we knew
Speaker 2: it was also necessary because we knew we had the
Speaker 2: capability to do it, and there are.
Speaker 3: So many people that don't.
Speaker 2: And if we can help use our voice to help
Speaker 2: protect those people and to protect future families from this
Speaker 2: happening to them, that's what we want to do.
Speaker 3: My name is Samantha Casiano.
Speaker 4: I'm twenty nine years old and I'm originally from Houston, Texas.
Speaker 4: When I became pregnant, this was not my first baby.
Speaker 4: This is actually my fifth child. When I went in
Speaker 4: for my twenty week scant, you know, they pick up
Speaker 4: your shirt, they rub the gel on your belly, and
Speaker 4: everything goes well. We're having a conversation and then all
Speaker 4: of a sudden, it goes quiet. They go on to
Speaker 4: tell me that they were sorry to tell me, but
Speaker 4: my daughter has been diagnosed with pennaceph lee, which means
Speaker 4: that my daughter'skull is not fully developed and her brain
Speaker 4: is not fully developed.
Speaker 3: And I felt like this has to be a dream,
Speaker 3: this is not right, with no way, and I immediately.
Speaker 4: Just start to cry. After I spoke to my doctor,
Speaker 4: I just kind of thought, what do I do? What
Speaker 4: can I do? Like, what options do I have? My
Speaker 4: doctor just told me I don't have any options after
Speaker 4: be pregnant.
Speaker 3: There has to be something. And afterwards I go on to.
Speaker 4: See if I can maybe go out of state, but
Speaker 4: the cost was crazy and childcare and I work, my
Speaker 4: husband works. It just didn't work for us, which is
Speaker 4: sad because you know, you would think in your hometown
Speaker 4: you'd be able to get the healthcare that you need,
Speaker 4: and that wasn't there for us. And after I gave birth,
Speaker 4: she was with us for four hours and when I
Speaker 4: told you she was grasping for air, she was just
Speaker 4: just like using her whole mouth was open and she
Speaker 4: was grasping for air, and they gave her morphine, and
Speaker 4: that hurt even more because you know, to see your
Speaker 4: little baby get morphine MORPHINEUS. It's morphine.
Speaker 3: So it was heartbreaking.
Speaker 4: At the very beginning, I wanted to be anonymous, and
Speaker 4: that changed as soon as.
Speaker 3: I met my daughter and saw how she suffered.
Speaker 4: I am going to do whatever I can to make
Speaker 4: sure that no mother, no other baby has to go
Speaker 4: through this ever again. My daughter died in her father's hands,
Speaker 4: and it took him an emotional roller coaster to have
Speaker 4: to go through that no family should have to go
Speaker 4: through that.
Speaker 1: This is what it was like for these women who
Speaker 1: tried to get an abortion last year. How did we
Speaker 1: get here? This month marks fifty one years since Roe v.
Speaker 1: Wade enshrined the federal right to abortion. In twenty twenty two,
Speaker 1: as we all know, that right was abolished by the
Speaker 1: US Supreme Court. The ruling, driven by Justice Samuel Alito,
Speaker 1: took away the constitutional right to choose to have an
Speaker 1: abortion and gave that authority to the people and their
Speaker 1: elected representatives. Now, doctors are afraid, and as we just heard,
Speaker 1: the consequences for women looking to terminate a pregnancy has
Speaker 1: often been herowing. Today, New York Times Pulitzer Prize winning
Speaker 1: investigative reporter Jody Canter explains what was really going on
Speaker 1: inside the Supreme Court when Roe was overturned. Jody is
Speaker 1: a top notch reporter responsible for breaking many me too
Speaker 1: stories alongside her colleague Megan Tuey. Now she's teamed up
Speaker 1: with another colleague, Adam Liptak, and the result is an
Speaker 1: astonishing feat of meticulously sourced reporting with surprising details. Here's
Speaker 1: my conversation with Jody Canter. Jody, I am so thrilled
Speaker 1: to have you on the podcast. You are such an intrepid,
Speaker 1: excellent reporter, and your piece on how the Supreme Court
Speaker 1: overturned ro V Wade was I think a masterclass in reporting.
Speaker 1: First and foremost, How did you get the idea to
Speaker 1: really dig into this because it was no easy task.
Speaker 5: Well, thank you so much, Katie. Adam Liptak and I
Speaker 5: just wanted to understand what had really happened. This is
Speaker 5: one of the most consequential decisions of our time. You know,
Speaker 5: you're talking today about the effect on women's lives, on
Speaker 5: whether or not they have children, but also it's transformed
Speaker 5: who's elected in this country, how medicine is practiced, and
Speaker 5: the court is pretty opaque. You know, on the one hand,
Speaker 5: they have oral arguments, the issue written opinions, so we
Speaker 5: can understand some of their thinking, but the question of
Speaker 5: how is the law, and especially something this epic really
Speaker 5: decided is often a mystery, And in fact their papers
Speaker 5: stay sealed for so long that the written records may
Speaker 5: not come out until some of us are dead. So
Speaker 5: Adam and I plunged in and just ask the basic questions.
Speaker 5: You know, how do the nin injustices go about doing
Speaker 5: something so big?
Speaker 1: How challenging was that? Jody? I mean, I can't imagine
Speaker 1: being tasked with really unraveling every aspect of this decision.
Speaker 1: So how did you go about reporting this? And how
Speaker 1: many foyas did you have to do? It's a great question.
Speaker 5: We did zero foyas because the Supreme Court is exempt
Speaker 5: from foya. Foya, of course, is the usual means by
Speaker 5: which the public, including journalists, can find out what's what
Speaker 5: the government is doing.
Speaker 1: Why don't you explain what foyas are?
Speaker 5: It's basically a written request to a government entity saying
Speaker 5: will you please show us these emails or these records
Speaker 5: because the public has a right to know. The Supreme
Speaker 5: Court is exempt from that. So there were some public
Speaker 5: records that we could rely on, and every case is
Speaker 5: a story, right, litigation is an narrative, and the Dobbs
Speaker 5: litigation is especially interesting because, Katie, I'm going to say
Speaker 5: it a little impolitely, this case was a nothing burger
Speaker 5: when it first emerged. It was this Mississippi law that
Speaker 5: was blatantly unconstitutional when it was passed because it contradicted Roe,
Speaker 5: it didn't look like it had a chance, especially because
Speaker 5: Justice Ginsburg was still on the court.
Speaker 1: Tell us a little more about the Mississippi law and
Speaker 1: what it stated.
Speaker 5: So basically, what Mississippi wanted to do is they wanted
Speaker 5: to permit women to have abortions only before fifteen weeks.
Speaker 5: So it doesn't sound that controversial on the face of it, right,
Speaker 5: because most abortions do occur before fifteen weeks. But the
Speaker 5: reason why it was so provocative is that the Supreme
Speaker 5: Court for many, many, many years had held that you
Speaker 5: can't restrict abortion before viability, before say twenty three weeks,
Speaker 5: and that had been secret for a long time. So
Speaker 5: really what they were saying was, we want to change
Speaker 5: the rules of when abortion restrictions are permitted. So two
Speaker 5: federal courts said no, said you can't do this, and
Speaker 5: they made a last ditch appeal to the Supreme Court
Speaker 5: when Justice Ginsburg was still alive and it looked like
Speaker 5: they had no chance, and then Justice Skinsburg died and
Speaker 5: everything changed.
Speaker 1: In fact, that was a huge turning point for really
Speaker 1: the ethos of the Court. Before we get into that,
Speaker 1: I just wanted to ask you a couple of other
Speaker 1: quick questions about the actual reporting. You had a difficult
Speaker 1: time finding sources because everything is so tightly held there.
Speaker 1: It's like a secret society in a way, right, Jody,
Speaker 1: And anyone who kind of shares information is shun and
Speaker 1: if it's discovered who they are. Right, Can you talk
Speaker 1: about kind of the culture of the Supreme Court, because
Speaker 1: it's so fascinating.
Speaker 5: It's correct to work there is pretty much to take
Speaker 5: a vow of silence. So it's a pretty dramatic situation
Speaker 5: because no matter who you are at the Court, if
Speaker 5: you have access to the deliberative process, you are confronting
Speaker 5: some of the hardest issues in American life. That's what
Speaker 5: the Court is doing right now. They're taking on all
Speaker 5: of these very controversial, hot button topics, and yet you
Speaker 5: can't tell anybody what you've seen. And also there's no
Speaker 5: accountability for these nine people, they have lifetime appointments, and
Speaker 5: nobody is anybody else's boss there among the justices. Meaning
Speaker 5: we look at Chief Justice John Roberts and he looks
Speaker 5: like he's in charge in many ways, but he's really not.
Speaker 5: He's really not. He's the administrator of the court and
Speaker 5: of the federal courts, but he really doesn't have a
Speaker 5: lot of leverage over the other justices. And so then,
Speaker 5: to make things even more difficult, Adam and I were
Speaker 5: reporting in the shadow of a leak investigation, of course.
Speaker 1: Right, so they were even more paranoid to talk to you, right,
Speaker 1: anyone associated with the court.
Speaker 5: It was very difficult. But as you know, that's why
Speaker 5: we do. We weren't doing it just for the sake
Speaker 5: of breaking open the silence. We were doing it to
Speaker 5: try to illuminate the court, to help us understand this
Speaker 5: critical institution, and to provide some function of accountability. I mean,
Speaker 5: as you know, we've both done this our whole lives.
Speaker 5: In journalism, probably the most basic function of journalism in
Speaker 5: a democracy is to just keep an eye on elected officials.
Speaker 5: It's why in a small town you want a journalist
Speaker 5: sitting there at a school board meeting or watching the mayor,
Speaker 5: because you want to say, a representative of the people
Speaker 5: is independently, not with government support, watching these government officials
Speaker 5: to be able to see what they do. And so
Speaker 5: in some ways we were just fulfilling that very basic function.
Speaker 1: Getting back to the Mississippi long curious Jody, and this
Speaker 1: is a bit of a quick left turn. Has viability
Speaker 1: changed with technology? I guess that's one of the questions
Speaker 1: if in fact this twenty three week window has been
Speaker 1: protected for a long time by the Supreme Court, Has
Speaker 1: technology and modern medicine in fact allowed fetuses to live
Speaker 1: even if they are less than twenty three weeks old.
Speaker 1: I don't even know the answer to that.
Speaker 5: I mean, I'm not a doctor, but I can tell
Speaker 5: you that Roe has always been a controversial decision, even
Speaker 5: among liberals, and as you know, the fights about abortion
Speaker 5: are just epic. And I think there has been some
Speaker 5: legal wrangling over whether the viability rule is smart because
Speaker 5: viability can change, right, But the I don't think that
Speaker 5: was really what was happening with Dobbs. What happened with
Speaker 5: Dobbs is that the composition of the court change and
Speaker 5: big time. Yeah, I mean often you have a Supreme
Speaker 5: Court that's stable for years and years at a time
Speaker 5: because of these lifetime appointments. But very quickly, from Justice
Speaker 5: Scalia's death in twenty sixteen up until very recently, you're
Speaker 5: looking at a court that's been repopulated and mostly with
Speaker 5: conservative justices.
Speaker 1: Well, let's pick up with Justice Ruth Bader Ginsberg's death.
Speaker 1: She was sort of a firewall in terms of a
Speaker 1: case like this, even being heard. She passes away. What happens,
Speaker 1: She passes.
Speaker 5: Away just as the justices are about to take their
Speaker 5: first preliminary look at Dobbs. And as you know, the
Speaker 5: Supreme Court operates in two phases. The first level of
Speaker 5: discussion is about whether the justices should take the case
Speaker 5: at all. The second level of discussion is if they
Speaker 5: take it is actually about deciding the case. So, in
Speaker 5: very quick succession, Dobbs goes on the discussion list. Justice
Speaker 5: Ginsburg dies with weeks until the twenty twenty presidential election,
Speaker 5: in the final days really of President Trump's term. He
Speaker 5: replaces Justice Skinsburg with Amy Coney Barrett, who is known
Speaker 5: to disagree with abortion. She's basically a favorite of the
Speaker 5: anti abortion movement and young and young and shuffled on
Speaker 5: the Court in record time, a very quick nomination process.
Speaker 5: So she's coming onto the scene even as President Trump
Speaker 5: is being shuffled out of the White House and then.
Speaker 1: The Court they're trying to shuffle him out.
Speaker 5: Of the well exactly as he loses the presidential election,
Speaker 5: is a better way to say it. And so the
Speaker 5: Court is sitting there with this very hot button case.
Speaker 5: And then it's in January of twenty twenty one, in fact,
Speaker 5: two days after the January sixth insurrection, that the justices
Speaker 5: have the first conversation about whether to take Dobs or not.
Speaker 5: And this very new justice, Justice Barrett, has to decide
Speaker 5: what to.
Speaker 1: Do, and she doesn't want to take it. She's very
Speaker 1: hesitant at first. What we were able to report is
Speaker 1: that she initially votes to grant that means to give
Speaker 1: it the green light, but she voices some objections, some concerns,
Speaker 1: you know, and she says, I'm really new here.
Speaker 5: I just got here. The composition of the court just changed.
Speaker 5: That will change. And she says at that point Justice
Speaker 5: Alito and a few of the others want to hear
Speaker 5: the case very soon. They want to hear it that
Speaker 5: term meaning a year before it was actually held, so
Speaker 5: they are ready to move with those justices with this
Speaker 5: colossal president. Justice as Alito, Thomas, and Gorsich all wanted
Speaker 5: to hear it very quickly, and she says, if you
Speaker 5: go and do that, I'm going to change my grant
Speaker 5: vote to a deny. And then weeks later that's what
Speaker 5: she actually does, she votes against taking the case. So
Speaker 5: it's important to remember when we look at it. To
Speaker 5: go back to your original question, Katie, how did this happen?
Speaker 5: One of the key facts I'm going to tell you
Speaker 5: is that this case was greenlighted by a minority.
Speaker 1: Of the court.
Speaker 5: Two conservative justices did not want to take it, Justice
Speaker 5: Roberts and Justice Barrett, and it was all men who
Speaker 5: greenlighted this case, and they overrode the objections of every
Speaker 5: woman on the court, conservative and liberal.
Speaker 1: What was Justice Kavanaugh's role in this, because he was
Speaker 1: a bit of a fly in the ointment for the
Speaker 1: conservative justices, right, Well, or is that overstating it?
Speaker 5: Well, I think it's open to interpretation. Let's see what
Speaker 5: happened and then we can interpret it. So they're sitting
Speaker 5: there on January eighth, two days after this rupture in
Speaker 5: American democracy, they have to decide whether to take the
Speaker 5: case or not. It seems like they have the votes
Speaker 5: to go ahead. But then at a subsequent meeting soon afterwards,
Speaker 5: Justice Kavanaugh says, we should relist this case.
Speaker 1: What does that mean?
Speaker 5: It means we should just punt or pretend that we're
Speaker 5: punting because we have the votes to go ahead, but
Speaker 5: the time, like Justice Barrett has already said, the timing
Speaker 5: wasn't right for her. So what he's suggesting is just
Speaker 5: keep it on like a TBD list in.
Speaker 1: The double put it on the docket if you will
Speaker 1: keep it on the docket because as on me or
Speaker 1: don't say that we're going ahead even though we privately
Speaker 1: know that we have the votes to grant.
Speaker 5: And he says, this will allow us to watch cases
Speaker 5: play out in the lower courts. And so that's what happens,
Speaker 5: and that also opens, you know, a kind of window
Speaker 5: of persuasion. Some of the justices who don't want to
Speaker 5: take it go to work on Justice Barrett and Justice Kavanaugh,
Speaker 5: and as we know, Justice Barrett changes her vote. So
Speaker 5: what was he really doing there? Was he saying? I
Speaker 5: think the most obvious interpretation is that he really wanted
Speaker 5: to take this case. He was in favor of it,
Speaker 5: but he wanted more time. He wanted it to look
Speaker 5: as if they were moving more slowly than they really were.
Speaker 5: I guess there's another you know, there's another possible interpretation,
Speaker 5: but it's hard to know what he really thought. I
Speaker 5: guess there's an interpretation also that he was buying time. Well,
Speaker 5: that makes sense to me now, you know, the reporting
Speaker 5: indicates that he wanted to go ahead. But we can't
Speaker 5: read the Justice's minds. We don't know what they were thinking,
Speaker 5: and it's all a game of poker inside that building.
Speaker 1: We have to take a quick break, but when we
Speaker 1: come back, we'll dig deeper into the dynamics of the
Speaker 1: court and the details of two cases that affected the
Speaker 1: Justice's decision to reconsider Row. If you want to get
Speaker 1: smarter every morning with a breakdown of the news and
Speaker 1: fascinating takes on health and wellness and pop culture, sign
Speaker 1: up for our daily newsletter Wake Up Call by going
Speaker 1: to Katiecouric dot com. Is Justice Alito sam Alito kind
Speaker 1: of the leader of this whole movement to overturn Roe v. Wade,
Speaker 1: Because I know Neil Gorsich decided he agreed with him
Speaker 1: only ten minutes after right, talk about the timing and
Speaker 1: how those two were really important figures and all this.
Speaker 5: So Justice Alito absolutely really propelled the court. He's one
Speaker 5: of nine justices. But when you look at the role
Speaker 5: he played first in rescheduling the case in the fall
Speaker 5: of twenty twenty, he wrote the majority opinion, it appears
Speaker 5: that he preservedulated it. We've seen evidence of some of
Speaker 5: the arguments he was making internally, and if you read
Speaker 5: his opinion, it's clear that he really wanted this to happen.
Speaker 5: So it's interesting he first shared his famous draft, the
Speaker 5: draft that made the law. This is also the draft
Speaker 5: that leaked in February of twenty twenty two. This is
Speaker 5: now the second phase, the phase where they're actually deciding
Speaker 5: the case. And he shared it with the full court
Speaker 5: one morning, and Justice Gorsuch did an interesting thing, which
Speaker 5: is he said, yes, I'm signing on to this, I've
Speaker 5: no changes, ten minutes after Justice Alito sent it around
Speaker 5: and it was a ninety eight page opinion. So does
Speaker 5: that mean he never even read the opinion before saying yes,
Speaker 5: I don't think so, we don't think so.
Speaker 1: So were they in kahoots?
Speaker 5: Well, it appeared that Justice Alito pre circulated the opinion
Speaker 5: among the majority before sharing it with the full which
Speaker 5: is not that unusual a thing to do. When you
Speaker 5: do that, you're trying to get buy in from the
Speaker 5: other justices. So he shared it with we think, we
Speaker 5: don't know exactly potentially, but it appears that he shared
Speaker 5: it with Justices Gorsage, Barrett at Kavanaugh, Thomas. Let's talk
Speaker 5: about the period of time between when the court agreed
Speaker 5: to hear the case and when they made the decision.
Speaker 5: Can you take people through sort of what happened, because
Speaker 5: I think it still is such a mystery for people
Speaker 5: how the court operates.
Speaker 1: Sure.
Speaker 5: Well, two, there's the thing that sort of was like
Speaker 5: expected and routine, and then there was a real wild
Speaker 5: card in there as well. So the routine thing is that,
Speaker 5: you know, okay, the justices are taking the case. There
Speaker 5: are months and months of planning and build up. Both
Speaker 5: sides are filing briefs. They're amicus briefs being filed by
Speaker 5: people who you know, agree with one side or the other.
Speaker 1: That's like friend of the court friends.
Speaker 5: Yeah, exactly, they're saying the court must do this. You know,
Speaker 5: for this reason, the lawyers are preparing their oral arguments
Speaker 5: because they're about to argue a historic case. So all
Speaker 5: of that is proceeding when boom, this Texas case comes along.
Speaker 5: That is extremely unorthodox. Here you have Mississippi trying to
Speaker 5: overturn Row. And by the way, during this time, Mississippi
Speaker 5: expanded its question. Its first brief early in the process
Speaker 5: said it's not necessary for the court to overturn Row
Speaker 5: to go ahead with this fifteen week rule by Mississippi.
Speaker 5: During this time period that we're talking about now they say, actually,
Speaker 5: we're trying to overturn all of Row. And this is
Speaker 5: kind of an unorthodox thing to do because they're changing
Speaker 5: the question. And Adam and I point out that there
Speaker 5: are other cases where the court is actually rejected the
Speaker 5: entire thing by saying to the lawyers, hey, you changed
Speaker 5: the question, it's cool.
Speaker 1: But they didn't.
Speaker 5: They didn't.
Speaker 1: So wait, let me just go back real quickly. They
Speaker 1: tried to change it from the fifteen week rule to
Speaker 1: what so Mississippi, when they pose the case say we're
Speaker 1: just trying to do this fifteen week cut off for abortions.
Speaker 1: We are it is not necessary to overturn Row. Then,
Speaker 1: during the merits phase, they file another brief saying, Justices,
Speaker 1: you've got to go all the way here an overturn row.
Speaker 1: It's like they sends to opportunity and expanded their question. Now, normally,
Speaker 1: I feel like I'm going on Michael Barbara on you.
Speaker 1: Normally you can't do that. You're saying that. A lot
Speaker 1: of times if it changes midstream, the justices or the
Speaker 1: court will say, no, you can't do that.
Speaker 5: You risk the justices dismissing the case as improvidently granted
Speaker 5: if you do that. However, in this case, it's at
Speaker 5: the justice's discretion, and in this case they went ahead.
Speaker 5: So what about this Texas law? So, even as mississid
Speaker 5: be is on its way to turn truro, Texas steps
Speaker 5: in with a much more provocative law than Mississippi's. Texas
Speaker 5: has what's called a heartbeat bill, banning abortion around the
Speaker 5: time you hear a heartbeats, which is six seven weeks.
Speaker 1: Now.
Speaker 5: The funny thing is that a lot of women don't
Speaker 5: know they're pregnant. Then you can't even do an abortion
Speaker 5: if it's too early. But not only that, the law
Speaker 5: has this incredibly unusual structure where regular people, uber drivers,
Speaker 5: doctors can be sued for helping to provide the abortion,
Speaker 5: and by doing that, the drafters of the law actually
Speaker 5: made it immune from review by the federal courts. They
Speaker 5: found this kind of loophole that said, the Supreme Court
Speaker 5: actually can't rule on whether this law is constitutional or not,
Speaker 5: even though this this law it contravenes Row. And so
Speaker 5: this case comes to the Supreme Court in an emergency application.
Speaker 5: This is totally different than the Court's regular procedures. It's
Speaker 5: like a last minute thing. This is the Texas Law.
Speaker 5: Two days before the Texas Law is supposed to go
Speaker 5: into effect, more or less overturning Row in the second
Speaker 5: most populous state in the entire country. Abortion providers in
Speaker 5: Texas come to the Supreme Court and say, you've got
Speaker 5: to stop this. This is illegal, this is improper. And
Speaker 5: the Court becomes kind of frozen over what to do.
Speaker 5: And this was part of our reporting as well. It's
Speaker 5: this last minute application. It's August thirty first. Four of
Speaker 5: the justices, led by Justice Alito, want to go ahead.
Speaker 5: Four of the justices, led by Justice Roberts, Chief Justice Roberts,
Speaker 5: want to stop it, and Justice Gorsitch doesn't vote in time.
Speaker 5: So the Court doesn't make a decision or announce anything
Speaker 5: before the law goes into effect, goes into effect, and
Speaker 5: then only the next day does the court issue a
Speaker 5: decision allowing it to go ahead. Says we're not we're
Speaker 5: not intervening.
Speaker 1: And by the way, the Texas law would even make
Speaker 1: it a crime to Let's say I had a friend
Speaker 1: who needed an abortion, and we both lived in Texas,
Speaker 1: and I drove her to a nearby state where she
Speaker 1: could terminate her pregnancy. I could be charged with criminal activity. Right.
Speaker 5: It's not like you're not going to be put in
Speaker 5: jail for, you know, a criminal offense, but you can
Speaker 5: be subject to a lawsuit. And so there is this
Speaker 5: feeling that like, wait a second, things are moving even
Speaker 5: more quickly than people even realized.
Speaker 1: And more severely and maybe more right.
Speaker 5: And also it doesn't look good for Roe at that point.
Speaker 5: You know, people are starting to say, if the court
Speaker 5: is allowing this Texas law to go ahead, they're not
Speaker 5: going to stop Mississippi.
Speaker 1: Let's talk about the leak, because that is a big
Speaker 1: part of your reporting. Yeah, who do you think leaked
Speaker 1: the decision?
Speaker 5: And why I you know, I don't know, and I
Speaker 5: can't tell you it's going to be it's going to
Speaker 5: be interesting to see Kiti, whether history ever figures it out,
Speaker 5: or whether anybody ever comes forward absent photographic evidence, it
Speaker 5: is really really tough to say. I think the question
Speaker 5: that is almost more interesting is, and this is what
Speaker 5: Politico never told us, what was the motive? What was
Speaker 5: the motive? Because you know, there are two sides here,
Speaker 5: right There are people who were outraged that the right
Speaker 5: to abortion was overturned, and there are people who saw
Speaker 5: it as a must, a necessity, the crowning achievement of
Speaker 5: the conservative legal movement. And so there are essentially two theories.
Speaker 5: There's this theory that a liberal did it to raise
Speaker 5: alarm bells about what was about to happen, and then
Speaker 5: there's a theory that a conservative did it in order
Speaker 5: to make it a runaway train, in order to help
Speaker 5: lock in the votes and prevent a compromise. And one
Speaker 5: of our discoveries in our reporting was that the compromise
Speaker 5: efforts underway at the court were more extensive than anybody knew.
Speaker 1: Let's talk about that, because I haven't mentioned just a
Speaker 1: Briar's role in all this exactly, and tell us what
Speaker 1: was going on behind the scenes.
Speaker 5: Well, listen, I don't know how people listening and hearing
Speaker 5: this today would feel about this. But what if the
Speaker 5: court had stopped at fifteen weeks? What if we were
Speaker 5: living in a reality today that said you can have
Speaker 5: an abortion up until fifteen weeks. That's what Chief Justice
Speaker 5: Roberts wanted to do. I mean, he basically said, this
Speaker 5: is the rule in a lot of other democracies, you know,
Speaker 5: he wanted His position was that he wanted to allow
Speaker 5: Mississippi to go forward with its law, but essentially stop
Speaker 5: there at least for the time being. And part of
Speaker 5: what's interesting is that it turns out that Justice Bryer,
Speaker 5: a lifelong liberal, was considering joining that position, which only
Speaker 5: would have had symbolic value. It wouldn't have been legally,
Speaker 5: it wouldn't have changed the legal outcome. But what would
Speaker 5: have changed it is that, because of the Court's kind
Speaker 5: of unusual mass, the Chief Justice only needed one vote
Speaker 5: from the conservative side to make that the law. So
Speaker 5: if he had been able to win over Justice Barrett
Speaker 5: or Justice Kavanaugh, say, we would be living with the
Speaker 5: fifteen week rule today and Roe would still be partially intact.
Speaker 5: It would be sort of smaller and more limited, but
Speaker 5: it would still exist.
Speaker 1: I'm curious, and I know you're not a doctor, neither
Speaker 1: am I of course, but don't most women get abortions
Speaker 1: in that time tame? Anyway, I think that's absolutely so
Speaker 1: much misinformation about quote unk quote late term or even worse,
Speaker 1: partial birth abortions that compromise. So few abortions that take
Speaker 1: place in this country, and when they do, it's usually
Speaker 1: because the life of the mother is in danger and
Speaker 1: there's something seriously wrong with the fetus. Yeah, and so
Speaker 1: that would have precluded all these states from enacting much
Speaker 1: more draconian laws.
Speaker 5: Correct, Yeah, I think the states would have continued to
Speaker 5: challenge a fifteen week rule. You know, there's one theory
Speaker 5: that says that a fifteen week rule was only a
Speaker 5: gateway to a ten week rule, which would have been
Speaker 5: an eight week rule, which would have been a six
Speaker 5: week rule, and then you have no.
Speaker 1: Right then abortion after that law. Right exactly, But maybe not.
Speaker 1: I mean, maybe that would have play came maybe or not.
Speaker 1: It's so hard to talk in hypotheticals. And also, the
Speaker 1: abortion debates in this country are so thunderous that it
Speaker 1: seems like wishful thinking that you know, after all these years,
Speaker 1: this country could just you know, say, okay, fifteen weeks.
Speaker 1: You know, the referee is blowing the whistle, like you know,
Speaker 1: the this is done and we're moving on to the
Speaker 1: next issue.
Speaker 5: But we don't know. I mean, look at what's changed
Speaker 5: with politics in this country since Roe was overturned. You
Speaker 5: know what would have been the political after effect of
Speaker 5: a fifteen week rule. We can't you know, we can't know.
Speaker 1: Talk about the leak and how that basically nullified any
Speaker 1: attempts at the compromise that Justice Roberts and Brier were
Speaker 1: considering this fifteen week ban.
Speaker 5: So the reason why these votes are secret is so
Speaker 5: justices can change their minds. It's to preserve their privacy.
Speaker 5: I mean, it's the deliberative process is supposed to have
Speaker 5: a sanctity to it because, no matter our political backgrounds,
Speaker 5: we really want the justices to be engaged in thoughtful
Speaker 5: contemplation and debate and to really do what they feel
Speaker 5: is right. And sometimes that can mean changing your mind
Speaker 5: or shifting your position. So this was a really grave
Speaker 5: breach for that reason. You know, the Court has called
Speaker 5: it an assault on the deliberative process, and I think
Speaker 5: that's right. Because it wasn't just the outcome that was leaked.
Speaker 5: It wasn't like somebody said, Katie Rowe is going to
Speaker 5: be overturned. The entire opinion was leaked. I mean, that
Speaker 5: is so unthinkable. And what happened is that it rendered
Speaker 5: the efforts to compromise kind of hopeless. Now, who knows
Speaker 5: how much hope they had to begin with. We really
Speaker 5: can't say, because you know, it would require a kind
Speaker 5: of like truth serum. I think for one of the
Speaker 5: justices to know every thought that was going through their minds.
Speaker 5: But we do know that some of the justices were
Speaker 5: trying to persuade others and that just didn't work once
Speaker 5: everything became public.
Speaker 1: Why, I mean, why for.
Speaker 5: A justice to change their minds after the votes and
Speaker 5: the opinion had become public. It would have looked like
Speaker 5: they were bowing to public pressure, which they never want
Speaker 5: to look like they're doing.
Speaker 1: So the decision had them pretty much boxed into their view. Right,
Speaker 1: I would say, it's solidified what already seemed to be happening.
Speaker 1: So this term, the Supreme Court is going to decide
Speaker 1: whether to limit access to a key abortion drug. What
Speaker 1: do you think is going to happen.
Speaker 5: I can't tell you exactly, but it's very dramatic, and
Speaker 5: I'm glad you mentioned it, because what we have to
Speaker 5: understand is that this is now the most common method
Speaker 5: of abortion in this country. Our old image of you know,
Speaker 5: going to a clinic and priasurgery is somewhat.
Speaker 1: Is antiquated at this point, although I think it's only
Speaker 1: it still happens, but I think more than fifty percent
Speaker 1: of abortion use a pill that will terminate the pregnancy.
Speaker 5: And so now this question is back with the justices,
Speaker 5: which is not what they said would happen in his
Speaker 5: majority opinion from Dobbs, just as Alito says, we're throwing
Speaker 5: this back to the States. The people are going to
Speaker 5: decide we are washing our hands of abortion dissians. Well,
Speaker 5: I think they, I mean, they chose to take the
Speaker 5: case because I think they essentially have to. You know,
Speaker 5: this is really controversial. There's a lot of disagreement. So
Speaker 5: basically the Supreme Court has to decide whether these really
Speaker 5: strict restrictions on these abortion drugs that were put in
Speaker 5: place by a lower court are going to stand or not.
Speaker 5: And remember that this is a different set of legal issues.
Speaker 5: This is about the FDA and what drugs were approved.
Speaker 5: So it's you know, the Court said that it was
Speaker 5: wanted to get less involved in abortion questions, but it
Speaker 5: appears to be getting more involved.
Speaker 1: After this break. Jody's take on what the outcome of
Speaker 1: the twenty twenty four presidential election could mean for the
Speaker 1: future of the Supreme Court and of course, abortion rights.
Speaker 1: I shudder to think about the composition of the Supreme
Speaker 1: Court if Donald Trump is re elected, because that means
Speaker 1: even more conservative justices. Who is the next to retire, Jody,
Speaker 1: and how could his reelection impact the composition of the court.
Speaker 5: You know, it's a really interesting question, in part because
Speaker 5: of the very complicated and not straightforward question of what
Speaker 5: happened with the first three judges he appointed. President Trump
Speaker 5: said that he was going to put in place justices
Speaker 5: who would automatically overturn Row. I mean, he did, But
Speaker 5: did they do it automatically or not? I don't know.
Speaker 5: That's part of why it's so interesting that Justice Barrett
Speaker 5: didn't vote to take the case, and in general, they
Speaker 5: didn't take his marching orders. Remember that this court reviewed
Speaker 5: a lot of election cases in which President Trump wanted
Speaker 5: them to stand by the idea that he had really
Speaker 5: won the twenty twenty election. They didn't do that. They
Speaker 5: rejected his ideas over and over again. And of course
Speaker 5: now they're about to face an even more dramatic, arguably
Speaker 5: set of election cases. And so he appointed very conservative justices,
Speaker 5: but not justices who took his dictates in an edge
Speaker 5: to his chagrin. Prom but much to his chagrin, and
Speaker 5: on January sixth, he actually gave a speech saying, I
Speaker 5: regard these justices as disloyal to me. I fought for them.
Speaker 5: He was especially talking about Justice Kavanaugh because of the
Speaker 5: sexual misconduct allegations during his nomination. So your question is
Speaker 5: a great one, but before we get to that, I
Speaker 5: kind of think we need to focus on this earlier
Speaker 5: question of b what are the.
Speaker 1: Justices going to do with these elections? Well, says, let's
Speaker 1: backtrack and actually talk about that, Jody, because that's certainly
Speaker 1: something I wanted to discuss with you, knowing what you
Speaker 1: and Adam uncovered about the inner workings of the Supreme Court,
Speaker 1: what do you think they are going to do when
Speaker 1: they hear in February this Colorado case that, says Donald Trump,
Speaker 1: because of Article fourteen, Section three of the Constitution about
Speaker 1: dealing with insurrectionists, that he cannot be on the state
Speaker 1: ballot for president of the United States. You know, a
Speaker 1: lot of people say, if they're the strict constructionists they
Speaker 1: claim to be or originalists, right, and they follow the
Speaker 1: letter of the law when it comes to the Constitution,
Speaker 1: they will agree with Colorado. What's your sense.
Speaker 5: Nobody knows. It's a great question, because it is pretty
Speaker 5: clear that January sixth was an insurrection.
Speaker 1: And there's no requirement to be convicted of that.
Speaker 5: Well, so what Adam Adam Leptak has written is that,
Speaker 5: of course it's impossible to know, but based on his
Speaker 5: reading of the law and his knowledge of the justices,
Speaker 5: he's indicated that he thinks it's a little He thinks
Speaker 5: the justices may be reluctant to keep a candidate off
Speaker 5: the ballot, really just on the principle that it's the
Speaker 5: people who are supposed to decide elections. However, it's one
Speaker 5: of the other cases, this immunity case, in which President
Speaker 5: Trump is.
Speaker 1: If you're president, you're immune to criminal prosecution.
Speaker 5: Adam thinks the justices may not go for that. So
Speaker 5: we'll see, We'll we'll say well, we'll see. But for
Speaker 5: the first time since Bush v. Gore, it really looks
Speaker 5: like a presidential electionist in the justices' hands.
Speaker 1: It's going to be so interesting to watch. And one
Speaker 1: last question, Jody, because it really has to do with
Speaker 1: the Supreme Court and the lack of transparency or as
Speaker 1: you said, the opacity I guess, of the of the
Speaker 1: High Court. There have been a lot of questions about
Speaker 1: the behavior of one particular Supreme Court justice, and that
Speaker 1: is Clarence Thomas. And if he has made too many compromises.
Speaker 1: We don't have to get into all the details here,
Speaker 1: but gifts and whether or not he's been influenced by
Speaker 1: certain outside interests, et cetera, et cetera. What is happening
Speaker 1: in terms of making sure the Supreme Court had and
Speaker 1: by the way, in public opinion polls, views of the
Speaker 1: High Court have declined, right and approval ratings, if you will.
Speaker 1: What happening in terms of ensuring that the justices are ethical?
Speaker 5: So there's a new ethics code, but it's soft. On
Speaker 5: the one hand, it's a real change, it's a real advance.
Speaker 5: They put out something publicly and remember that you know,
Speaker 5: part of what is really surprising about the Supreme Court
Speaker 5: is that they're actually bound by fewer rules than other
Speaker 5: federal judges, which kind of makes no sense because you say,
Speaker 5: how could the people with the highest responsibility have a.
Speaker 1: Lost amount of safeguard lower standard?
Speaker 5: That's right, and so there is an ethics code now,
Speaker 5: but it lacks an enforcement mechanism. Some of the language
Speaker 5: is open to interpretation. It's still basically an honor system
Speaker 5: and a voluntary basis. But listen, this is why reporting
Speaker 5: on the court is so important, and Pro Publica has
Speaker 5: done so much work on this issue at the times
Speaker 5: other publications, and I think there's just a renewed feeling
Speaker 5: that we have to watch and understand the justices because
Speaker 5: they have so much power, and even in our system
Speaker 5: of checks and balances, their power is that their power
Speaker 5: lacks a lot of the usual checks.
Speaker 1: For people watching or listening to this who believe in
Speaker 1: a woman's right to choose, do you see this Ever
Speaker 1: sort of turning around. Do you see something akin to
Speaker 1: row Ever being reinstated.
Speaker 5: It's a better question for a legal expert, but I
Speaker 5: think we're seeing it on the political side. I mean,
Speaker 5: look at what happened in Ohio. You know, there were
Speaker 5: just massive efforts, you know, to also Kansas. Yeah, exactly.
Speaker 5: I mean we're just seeing that. You know, Adam and
Speaker 5: I never really talked about politics and he was elected
Speaker 5: and ballot referendums and stuff during our reporting because we
Speaker 5: were entirely focused on the court. But you could argue that,
Speaker 5: you know, would just Alito and his colleagues did succeeded legally,
Speaker 5: of course, but members of the Republican Party. I'd be
Speaker 5: fascinated to talk to a Republican political official and here
Speaker 5: his or her response to our story and what the
Speaker 5: court did, because there are some Republicans who feel this
Speaker 5: has been a disaster.
Speaker 1: For them right politically, and yet I think it's also
Speaker 1: been seen as a huge triumph exactly that took years
Speaker 1: and years and years for the anti abortion movement in
Speaker 1: this country.
Speaker 5: Yeah, I think that's right.
Speaker 1: So maybe they're reaping what they sewed politically. These Republican officials,
Speaker 1: they wrote on the wins of anti abortion quote quote
Speaker 1: unquote pro life advocates, and now maybe be careful what
Speaker 1: you wish for, because I think it's so extreme and
Speaker 1: it's going so ex dream that now there's a backlash
Speaker 1: to that whole movement, I think, I hope anyway.
Speaker 5: I think that's part of why it's so important and
Speaker 5: fascinating to understand the history, because you say, to yourself, Okay,
Speaker 5: look at Chief Justice Roberts's fifteen week compromise. He looked lonely.
Speaker 5: It looked like a losing proposition. What would this country
Speaker 5: look like if it had prevailed. I don't know. Hard
Speaker 5: to say, but we probably wouldn't see the political reaction
Speaker 5: we have seen.
Speaker 1: Jody, Thank you so much. Thank you explaining this complicated
Speaker 1: topic in such an understandable way. It's so important that
Speaker 1: Americans pay attention and understand how government works, so I
Speaker 1: hope they'll listen and learn from this.
Speaker 5: Thank you for your great questions, Katie, Thanks for listening.
Speaker 1: Everyone. If you have a question for me, a subject
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