WEBVTT - Unpacking the Roe draft bombshell with Mary Ziegler 0:00:00.160 --> 0:00:03.920 Hi everyone, I'm Katie Curic and this is next question. 0:00:06.160 --> 0:00:10.200 Something major happened this week breaking news out of Washington, 0:00:10.360 --> 0:00:14.080 an unprecedented leak from the Supreme Courts the draft opinion, 0:00:14.280 --> 0:00:18.040 which shows its conservative majority of justices is ready to 0:00:18.079 --> 0:00:23.200 overturn Roe v. Wade. The Court confirmed the document is authentic, 0:00:23.440 --> 0:00:26.840 but says it does not represent a decision nor the 0:00:26.960 --> 0:00:30.360 final position of any justice. This could be the most 0:00:30.400 --> 0:00:35.280 consequential opinion in decades. Hundreds of protesters rallied outside the 0:00:35.320 --> 0:00:39.160 Supreme Court Monday evening afternows of the Court's draft opinion broke, 0:00:41.800 --> 0:00:46.160 and those protests continued all over the country on Tuesday, 0:00:46.760 --> 0:00:49.920 including one right here in New York City. A couple 0:00:49.960 --> 0:00:52.440 of my producers and I headed to Fully Square in 0:00:52.520 --> 0:00:56.760 Lower Manhattan so we could see and hear how abortion 0:00:56.840 --> 0:01:01.960 rights supporters are responding to the shocking is Tell me 0:01:02.040 --> 0:01:05.080 why you wanted to come down here today? Not only 0:01:05.120 --> 0:01:08.440 because I've had an abortion, but my daughter is twenty 0:01:08.480 --> 0:01:11.399 one and this is the world she's in right now. 0:01:11.520 --> 0:01:15.280 So how could we not be here. Anywhere where more 0:01:15.280 --> 0:01:18.680 than two people are gathered for the sake of reproductive 0:01:18.760 --> 0:01:21.280 rights is a gathering I want to be at. I 0:01:21.360 --> 0:01:24.480 came out because I love women. I love the rights 0:01:24.520 --> 0:01:28.000 to their their own autonomy. I love the rights of humanity, 0:01:28.080 --> 0:01:30.399 and I love the laws of humanity as well. It 0:01:30.520 --> 0:01:32.319 was important that people were in the streets today, but 0:01:32.360 --> 0:01:34.800 this cannot be another one day protest where we register 0:01:34.840 --> 0:01:36.880 our descent and then go home and let them strip 0:01:36.959 --> 0:01:39.960 us of our right to be fully human. And if 0:01:39.959 --> 0:01:43.520 I asked you about your side, it says I survived 0:01:43.560 --> 0:01:48.840 in a legal abortion in Birmingham, Alabama, in nineteen sixty nine. 0:01:49.800 --> 0:01:51.320 I woke up this morning I felt like I had 0:01:51.320 --> 0:01:54.960 time traveled. I can't believe we're going back to this. 0:01:55.320 --> 0:02:01.600 We're just regressing so far. And do you remember what 0:02:01.720 --> 0:02:05.320 it was like the Grovy Way was decided? And can 0:02:05.360 --> 0:02:09.920 you describe it for people who don't. I can remember 0:02:10.200 --> 0:02:14.119 being in college and knowing of girls in my college 0:02:14.720 --> 0:02:18.639 who had back alley abortions, and some of them suffered 0:02:19.120 --> 0:02:23.960 grave consequences as a result. There are people finding out 0:02:24.240 --> 0:02:26.600 that they are pregnant and they don't necessarily want to be, 0:02:26.800 --> 0:02:29.080 or they didn't plan to be, or they're thinking about 0:02:29.080 --> 0:02:32.720 what they're gonna do um and I can't imagine being 0:02:32.720 --> 0:02:35.760 in that situation. Right now at the end of the day, 0:02:35.840 --> 0:02:38.919 like a lot of people are lonely and feel like 0:02:38.960 --> 0:02:41.519 they're alone in a decision or in a problem or 0:02:42.040 --> 0:02:45.040 uh So, coming to where there's like thousands of people 0:02:45.040 --> 0:02:47.120 are like hundreds of people is just like reaffirming the 0:02:47.160 --> 0:02:49.840 fact that we are not wrong. I don't believe this 0:02:49.880 --> 0:02:51.600 is an accident, and I don't believe that this is 0:02:51.880 --> 0:02:55.079 all of a sudden So for me, Texas was the 0:02:55.440 --> 0:02:58.520 wake up call and since then it's been pretty rough 0:02:58.960 --> 0:03:04.320 for my mental health. How are you guys feeling after 0:03:04.440 --> 0:03:09.240 this gathering? It feels great empowering. Also, like we also 0:03:09.280 --> 0:03:11.480 know that coming here is just not the end of it. 0:03:11.919 --> 0:03:15.160 That's why Thursday we're calling for nationwide strikes, no school, 0:03:15.480 --> 0:03:17.720 no work. You know, if you're calling sick to work, 0:03:17.800 --> 0:03:22.560 say you're sick of the patriarchy. We're both in law 0:03:22.639 --> 0:03:25.440 school right now, and so it's important for us to 0:03:25.520 --> 0:03:28.440 come out here and do this and do our civic 0:03:28.520 --> 0:03:33.120 duty to protest and hopefully use our legal careers to 0:03:34.040 --> 0:03:37.080 undo whatever the hell is happening right now. This is 0:03:37.120 --> 0:03:40.440 the biggest privilege to be here for democracy, for the 0:03:40.560 --> 0:03:43.680 rights of women. I grew I raised my children in 0:03:43.840 --> 0:03:46.640 South in Atlanta, and I just moved to New York 0:03:46.840 --> 0:03:50.440 and this is how it's supposed to be likely here. 0:03:51.480 --> 0:04:03.640 I am any general call to action. This is a 0:04:03.800 --> 0:04:08.840 fine alarm fire of my friends. This is a time 0:04:08.880 --> 0:04:11.720 to act, and this is not the time to be silent, 0:04:12.160 --> 0:04:20.080 because silence is right now when ree poem rights are 0:04:20.200 --> 0:04:32.040 under attack, what do we do? The news of the 0:04:32.120 --> 0:04:36.080 leak draft and its language was stunning, but the fact 0:04:36.200 --> 0:04:41.599 is it wasn't unexpected given the courts conservative majority. In fact, 0:04:41.960 --> 0:04:45.680 in anticipation of the official ruling which is expected to 0:04:45.720 --> 0:04:49.160 come down in late June, my producer Lauren Hansen, and 0:04:49.200 --> 0:04:52.520 I have been busy putting together an in depth and 0:04:52.680 --> 0:04:57.840 nuanced dive into the history and future of abortion access 0:04:57.880 --> 0:05:01.440 in this country. We've talked to countless people on the topic, 0:05:01.920 --> 0:05:09.120 abortion doctors, clinic staff, activists on the ground, reproductive justice leaders, historians, 0:05:09.600 --> 0:05:13.760 people who have had abortions, and so many more. It's 0:05:13.800 --> 0:05:16.520 been months in the making and it's coming out in 0:05:16.640 --> 0:05:21.920 just a few weeks. In the meantime, today, right now, 0:05:22.080 --> 0:05:24.960 we need to address the big abortion news this week, 0:05:25.560 --> 0:05:27.760 and to do so, we connected with one of the 0:05:27.839 --> 0:05:32.560 legal experts from our series, Mary Ziggler. Mary not only 0:05:32.600 --> 0:05:36.159 helped us understand the league, but what the draft actually 0:05:36.240 --> 0:05:40.600 means for the upcoming road decision. It feels kind of cavalier. 0:05:41.080 --> 0:05:44.200 It feels as if these justices are are siloed right 0:05:44.279 --> 0:05:48.400 from people who disagree with them in ways that are consequential. Um, 0:05:48.440 --> 0:05:52.760 and that we see unfolding. Now we'll have more with 0:05:52.800 --> 0:06:02.479 Mary Ziggler right after this. Mary Ziggler is one of 0:06:02.520 --> 0:06:06.479 the foremost experts on the long history of abortion and 0:06:06.600 --> 0:06:10.400 the law. So, Mary, have you had a chance to 0:06:10.440 --> 0:06:15.680 look over the draft opinion? Yeah? And what was your reaction? Um? 0:06:15.720 --> 0:06:17.920 I mean, in some ways, it's not surprising given what 0:06:17.960 --> 0:06:20.120 we heard at the oral argument in December. This is 0:06:20.120 --> 0:06:22.320 sort of what I was expected at the same expecting 0:06:22.360 --> 0:06:24.160 at the same time, I think I kind of can't 0:06:24.160 --> 0:06:27.120 help but be surprised because I spend a lot of 0:06:27.160 --> 0:06:29.240 time as someone who studies this talking to people with 0:06:29.279 --> 0:06:32.760 different views on abortion, and anyone, regardless of their opinion 0:06:32.760 --> 0:06:34.840 on abortion, should understand that what this is is going 0:06:34.880 --> 0:06:36.560 to be a very big deal for a very lot 0:06:36.560 --> 0:06:39.920 of people. Um. And this opinion, it feels like it's 0:06:39.920 --> 0:06:41.960 certain by people who think this is an easy decision 0:06:42.000 --> 0:06:44.680 this is not really something that requires a lot of 0:06:44.720 --> 0:06:48.360 soul searching. UM. And that's really really striking. I think 0:06:48.400 --> 0:06:53.480 it feels kind of cavalier. Um. It feels it feels 0:06:53.480 --> 0:06:56.680 as if these justices are are siloed right from people 0:06:56.680 --> 0:07:00.360 who disagree with them in ways that are consequential, Um 0:07:00.480 --> 0:07:04.479 that we see unfolding now. Politico called this draft a 0:07:04.640 --> 0:07:10.200 quote full throated, unflinching repudiation of the seventy three decision. 0:07:10.640 --> 0:07:13.680 Do you agree? Oh yeah, there's no question. I mean 0:07:13.800 --> 0:07:17.240 it's I don't know how much more full throated or 0:07:17.240 --> 0:07:20.120 repudiation you could have, so that that characterization of the 0:07:20.160 --> 0:07:23.800 draft is absolutely right. Having said that, how close will 0:07:23.920 --> 0:07:29.000 the opinion itself resemble this draft? Is there a chance 0:07:29.600 --> 0:07:34.920 that the language that's Justice Alito used in writing it 0:07:34.960 --> 0:07:40.800 could be softened or altered to be less of a repudiation? Absolutely? 0:07:40.840 --> 0:07:43.160 I mean this draft is from February. UM. We know 0:07:43.360 --> 0:07:47.440 historically when UM planned Parenthod versus Casey, the Court abortion 0:07:47.480 --> 0:07:50.520 decision UM came out. There were leaks that reported the 0:07:50.520 --> 0:07:52.440 Court was going to reverse Row, and we know at 0:07:52.520 --> 0:07:56.320 least one justice changed their mind on that matter. Between 0:07:56.640 --> 0:07:58.080 the time of those leaks and the time of a 0:07:58.120 --> 0:08:00.640 final decision. So it's it's even possible the votes don't 0:08:00.680 --> 0:08:03.200 come out the same way. UM, I would be surprised 0:08:03.280 --> 0:08:05.640 by that, But I think it's it's more likely that 0:08:05.760 --> 0:08:08.640 some of the language in this opinion the final opinion 0:08:08.680 --> 0:08:11.680 may change or be softened. Um. The effect of the 0:08:11.720 --> 0:08:14.360 leak is actually interesting because you could imagine some of 0:08:14.360 --> 0:08:16.960 the justices being more reluctant to make those changes because 0:08:16.960 --> 0:08:19.360 they don't want to be perceived to be caving to 0:08:19.440 --> 0:08:23.800 public pressure. So how the leak ultimately um shapes what's 0:08:23.840 --> 0:08:26.400 going to happen in terms of the final opinion is 0:08:26.480 --> 0:08:29.760 is a really interesting question given the makeup of the 0:08:29.760 --> 0:08:35.200 current court. Even if Chief Justice Roberts uh does not 0:08:35.480 --> 0:08:40.400 agree with this, it is still potentially and likely a 0:08:40.520 --> 0:08:43.960 five for decision, is it not. It is unless Chief 0:08:44.000 --> 0:08:46.160 Justice John roberts decides that for the good of the 0:08:46.160 --> 0:08:48.960 Court he's going to join the majority to make the 0:08:48.960 --> 0:08:51.520 court look more unified. But I mean, I doubt that 0:08:51.520 --> 0:08:54.800 that would change people's perception of this as a as 0:08:54.800 --> 0:08:58.199 a partisan issue because all of the six justices should 0:08:58.200 --> 0:09:01.120 Justice Roberts joined that majority would be Republican nominee. So 0:09:01.160 --> 0:09:03.880 whether it's fiber six. It's going to be similar kind 0:09:03.880 --> 0:09:06.400 of optics. I was going to say, though, My point 0:09:06.520 --> 0:09:10.080 is it is a fatal complaint, isn't it totally? Yeah? 0:09:10.120 --> 0:09:13.960 I mean, you know, I hate to say there's never 0:09:14.040 --> 0:09:17.160 a possibility because Plan Pedrotorn versus Casey happened, but I 0:09:17.160 --> 0:09:20.839 would be flabbery gasted and shocked if the Supreme Court 0:09:21.200 --> 0:09:24.400 doesn't overall row um in June, right, I mean, I 0:09:24.400 --> 0:09:26.120 would be pretty blown away. So, I mean, you can 0:09:26.120 --> 0:09:28.800 never say never because wild things happened, but it would 0:09:28.840 --> 0:09:31.679 be anyone who's been paying attention to this would be 0:09:31.760 --> 0:09:34.120 very surprised if that were not to happen. In June, 0:09:34.720 --> 0:09:38.720 Justice Alito wrote Row was egregiously wrong from the start. 0:09:38.880 --> 0:09:42.400 Its reasoning was exceptionally weak, and the decision has had 0:09:42.559 --> 0:09:47.000 damaging consequences, and far from bringing about a national settlement 0:09:47.040 --> 0:09:51.679 of the abortion issue, Row and Casey have inflame debate 0:09:51.960 --> 0:09:55.880 and deepened division. Your reaction, I mean, one of the 0:09:55.920 --> 0:09:58.240 interesting things is that in an opinion that spends so 0:09:58.360 --> 0:10:02.760 much time on history, the comments that the draft makes 0:10:02.800 --> 0:10:06.880 about inflaming opinion are without any historical support. I mean, 0:10:06.920 --> 0:10:09.000 the idea that Row is what left us with our 0:10:09.040 --> 0:10:13.080 current political divide um is something that absolves a lot 0:10:13.120 --> 0:10:15.760 of people, including the members of the current Supreme Court, 0:10:15.800 --> 0:10:19.480 of responsibility for inflaming that divide um. The abortion debate 0:10:19.559 --> 0:10:23.760 proceeded Row Um, it will long outlive Dobbs. It would 0:10:23.840 --> 0:10:25.960 It would be great if the Supreme Court could simply 0:10:25.960 --> 0:10:28.120 wave a magical on and we would all get along 0:10:28.240 --> 0:10:30.400 about abortion. That that's never been the way it is, 0:10:30.440 --> 0:10:33.080 and it will be the way it is now. Um. 0:10:33.320 --> 0:10:35.360 And the idea that row is egregiously wrong. I think 0:10:35.400 --> 0:10:38.080 again hearkens back to the fact that for these justices, 0:10:38.160 --> 0:10:40.959 this is not something that requires a lot of thought. Potentially, 0:10:41.000 --> 0:10:44.720 this is something that's obvious, and that's likely to make 0:10:44.800 --> 0:10:48.240 people even more bitter and unhappy who who support aversion rights, 0:10:48.240 --> 0:10:49.719 because this will not feel as if it was a 0:10:49.800 --> 0:10:54.640 kind of thoughtful, difficult but ultimately necessary conservative decision. This 0:10:54.679 --> 0:10:58.240 is going to feel like it was something that was automatic. Um. 0:10:58.320 --> 0:11:00.000 And that's I think going to make it sit less 0:11:00.040 --> 0:11:02.839 well with some people. It sounds as if Justice A. 0:11:02.960 --> 0:11:06.840 Leado is opposed to Roe v. Wade because he believes 0:11:06.920 --> 0:11:11.599 that abortion was never sort of spoken about in the Constitution. 0:11:11.679 --> 0:11:14.719 There is no right to an abortion. Why, in your 0:11:14.800 --> 0:11:18.080 view is that a specious argument? Well, I think that 0:11:18.720 --> 0:11:21.040 the main problem with that argument is simply that it 0:11:21.080 --> 0:11:24.240 proves too much right. Because if the argument Justice Leado 0:11:24.280 --> 0:11:26.480 makes is essentially that if a right isn't in the 0:11:26.520 --> 0:11:29.280 text of the Constitution, and if something wasn't recognized as 0:11:29.280 --> 0:11:31.600 a right at the time the fourteen Commitment was ratified, 0:11:31.840 --> 0:11:34.040 then it isn't a right. So then the question becomes, well, 0:11:34.080 --> 0:11:35.920 what else wasn't recognized as a right at the time 0:11:35.960 --> 0:11:39.600 the fourteen Commendment was written? Um, interracial marriage was broadly criminal. 0:11:39.920 --> 0:11:43.920 States were beginning to more vigorously criminalize same sex sexual 0:11:43.920 --> 0:11:47.880 intimacy and enforce those bands. Um say, the federal government 0:11:47.920 --> 0:11:52.400 had criminalized contraception and materials on sex education. Um, why 0:11:52.440 --> 0:11:55.319 it laws on voting for people of color were changing 0:11:55.360 --> 0:11:58.000 in negative and rapid ways. And so if that, if 0:11:58.040 --> 0:12:01.520 that's really the guide, the question is why is row different? Um. 0:12:01.559 --> 0:12:03.880 Justice Alito's answer in the draft seems to be that 0:12:03.960 --> 0:12:08.040 abortion effects fetal life, and that fetal life is uniquely valuable. 0:12:08.080 --> 0:12:09.600 But then, of course that's going to open the door 0:12:09.600 --> 0:12:12.360 to the argument that abortion is unconstitutional. That this isn't 0:12:12.360 --> 0:12:14.720 simply a matter of letting states each have their say 0:12:14.720 --> 0:12:17.360 through the democratic process, that this is something that the 0:12:17.400 --> 0:12:19.880 Supreme Court is going to intervene in yet again by 0:12:19.960 --> 0:12:23.200 saying abortion has to be criminal. So either way you 0:12:23.240 --> 0:12:25.160 look at it, um, I think the court sense that 0:12:25.200 --> 0:12:27.080 this is just something that the Court can wash its 0:12:27.080 --> 0:12:29.439 hands of is is disingenuous. I think the Court will 0:12:29.480 --> 0:12:32.480 be encouraging one set of challenges or another, if not both. 0:12:33.000 --> 0:12:35.840 So do you think this will ultimately lead to a 0:12:35.880 --> 0:12:41.920 Supreme Court decision outlying abortion period, no matter what states 0:12:42.480 --> 0:12:46.280 want to do or what state legislator, how state legislatures vote. 0:12:46.960 --> 0:12:49.040 I think that the Court in this draft is not 0:12:49.120 --> 0:12:51.720 closing the door on that possibility, and we already know 0:12:51.840 --> 0:12:54.480 that people in the anti abortion movement are making that argument. 0:12:54.840 --> 0:12:57.000 So whether the Court is receptive to it, I think 0:12:57.040 --> 0:12:59.760 remains to be seen. But this is certainly if this 0:13:00.000 --> 0:13:03.040 app ends up being something like the final opinion, that's 0:13:03.080 --> 0:13:05.560 going to supercharge efforts to get the Court to declare 0:13:05.600 --> 0:13:08.240 abortion and constitutional because people in the anti abortion movement 0:13:08.280 --> 0:13:10.000 are going to, I think correctly view that as an 0:13:10.040 --> 0:13:14.960 encouraging sign. What does this portend for other pieces or 0:13:15.040 --> 0:13:18.640 other Supreme Court decisions that have been handed down visa 0:13:18.720 --> 0:13:22.120 the things like gay marriage, etcetera. Well, the Court in 0:13:22.120 --> 0:13:23.960 this draft tries, I think, in a sort of half 0:13:23.960 --> 0:13:27.000 hearted way to distinguish those things, right, But I think, well, 0:13:27.120 --> 0:13:30.920 do you think this is the case of protesting too much? Yeah? 0:13:30.960 --> 0:13:32.400 I do, And I mean we've seen this on the 0:13:32.440 --> 0:13:35.120 progressive side before. Of course, when the Supreme Court struck 0:13:35.160 --> 0:13:37.360 down bands on sodomy, the court made a point of saying, well, 0:13:37.400 --> 0:13:40.640 sort of marriage is different, right, And then two that 0:13:40.679 --> 0:13:43.280 was in two thousand three, and the Court did recognize 0:13:43.280 --> 0:13:45.440 the right to same sex marriage. So the best way 0:13:45.440 --> 0:13:47.120 to read that language is the Court is not going 0:13:47.160 --> 0:13:50.000 to overrule those decisions today. But does that mean they're 0:13:50.000 --> 0:13:52.920 going to overrule them in five years? Who knows, because 0:13:52.920 --> 0:13:55.199 the reasoning is the same. I mean, if again, our 0:13:55.240 --> 0:13:58.319 guide is what was happening in nineteenth century America. That 0:13:58.440 --> 0:14:01.280 was when you know, women vote right, I mean, there 0:14:01.320 --> 0:14:02.880 are a lot of things that were different in nineteenth 0:14:02.880 --> 0:14:04.760 century American. If that's going to be our guide about 0:14:04.760 --> 0:14:07.640 the contour of constitutional rights, and if our sense of 0:14:07.640 --> 0:14:11.000 what constitutional memory comes from is just the black letter 0:14:11.040 --> 0:14:14.400 of the law, Um, it's not clear what the limiting 0:14:14.440 --> 0:14:16.480 principle is going to be. And we know that Justices 0:14:16.520 --> 0:14:19.840 Alito and Thomas have already called into question um the 0:14:19.880 --> 0:14:23.080 correctness of the Supreme Court's decision recognizing the right for 0:14:23.120 --> 0:14:26.840 same sex couples to marry. We know that Republican lawmakers 0:14:27.080 --> 0:14:31.160 during Katangi Brown Jackson's confirmation hearings have called that that 0:14:31.280 --> 0:14:34.280 precedent into questions. So it's coming, I mean, it's it's 0:14:34.320 --> 0:14:36.640 just a question of whether the Court goes for it, 0:14:37.000 --> 0:14:39.600 and whether the justices, who are you know, in the 0:14:39.640 --> 0:14:42.360 conservative coalition the least far to the right, want to 0:14:42.400 --> 0:14:45.040 embark on a mission of dismantling a wide variety of 0:14:45.080 --> 0:14:47.520 precedence and not just Brow. There's reason to think that 0:14:47.520 --> 0:14:49.320 would happen, because, of course we know Row is the 0:14:49.360 --> 0:14:52.120 most recognized Supreme Court opinion. And so if this is 0:14:52.120 --> 0:14:55.280 how the justices behave when everybody is paying attention, you know, 0:14:55.360 --> 0:14:57.600 are they really going to behave differently when people aren't 0:14:57.600 --> 0:14:59.720 paying attention? I would I would submit the answer to 0:14:59.760 --> 0:15:02.800 that is probably not. Can you tell us anything about 0:15:02.880 --> 0:15:08.680 Justice Alito that would help us understand his position when 0:15:08.680 --> 0:15:12.000 it comes to this draft decision? Yeah, I mean Justice 0:15:12.000 --> 0:15:15.840 Alito often approaches things. I mean there's a sort of 0:15:16.320 --> 0:15:19.520 it's hard to describe, but I think intellectually he's very 0:15:19.520 --> 0:15:23.080 self confident and there's almost a sense of um of 0:15:23.280 --> 0:15:25.800 offense he takes when people disagree with him. There's a 0:15:25.840 --> 0:15:28.840 tone in this draft that it almost ridicules the reasoning 0:15:28.880 --> 0:15:31.360 of Row and the people who support it. And that's 0:15:31.400 --> 0:15:36.920 in keeping with other decisions Justice Aldo has rendered. UM. 0:15:37.040 --> 0:15:39.440 We know as well the Justice Leado has a long 0:15:39.560 --> 0:15:42.440 history of being fairly far the right on abortion issues. 0:15:42.480 --> 0:15:45.040 So when he was a justice at the Third Circuit 0:15:45.080 --> 0:15:47.720 Court of Appeals, he was the only justice to hold 0:15:47.760 --> 0:15:51.720 that Pennsylvania could obligate um women and other people who 0:15:51.720 --> 0:15:55.400 are pregnant to tell their their husbands before getting an abortion. UM. 0:15:55.440 --> 0:15:58.560 We know that early in his political career, when he 0:15:58.640 --> 0:16:03.320 was working in republic and presidential administrations, he helped write 0:16:03.360 --> 0:16:08.480 briefs um In laying out strategy to undo Row. So 0:16:08.800 --> 0:16:13.200 intellectually and personally, this draft is not a surprise coming 0:16:13.200 --> 0:16:15.840 from him. I think the fact that this this would 0:16:15.840 --> 0:16:18.480 be the voice of the court speaking would be more surprising, 0:16:18.600 --> 0:16:22.040 because this, of course will have ramifications for the courts 0:16:22.040 --> 0:16:25.360 institutional reputation. If this is how the Court ultimately ends 0:16:25.440 --> 0:16:28.000 up um for the legacy of all the justices who 0:16:28.000 --> 0:16:30.880 signed this opinion, not just for Justice Alito. UM. So 0:16:30.920 --> 0:16:33.400 we know kind of in terms of where the justices fall, 0:16:33.520 --> 0:16:36.040 the Justice Alito and Thomas tend to be on the 0:16:36.080 --> 0:16:38.680 courts for this right flank. But of course all of 0:16:38.680 --> 0:16:41.120 the justices who are part of this opinion. UM, it's 0:16:41.160 --> 0:16:43.560 fair to say this will be their legacy. People will 0:16:43.680 --> 0:16:47.520 likely not remember almost anything else these justices do once 0:16:47.680 --> 0:16:49.760 rovweight is gone. I think this will be the defining 0:16:49.840 --> 0:16:52.840 momentum for this court and everyone on it. In fact, 0:16:52.880 --> 0:16:58.600 Justice Kavanaugh during the confirmation process assured members of Congress 0:16:58.680 --> 0:17:06.080 that he recognized and appreciated precedent and would not tamper 0:17:06.160 --> 0:17:09.480 with Growthy Wade, what do you make of that? Well, 0:17:09.520 --> 0:17:12.359 I think Justice Kavanaugh is a smart man who, you know, 0:17:12.440 --> 0:17:16.080 didn't really ever issue any guarantees, he said. I think 0:17:16.119 --> 0:17:19.359 Susan Collins, who to whom you may be referring in particular, 0:17:19.480 --> 0:17:22.439 wanted to understand him to mean a certain thing, and 0:17:22.600 --> 0:17:25.199 he was vague enough that she could hear what she 0:17:25.280 --> 0:17:28.639 wanted to hear. But he never made any specific guarantees 0:17:28.640 --> 0:17:30.440 that he would do anything with Row And I think 0:17:30.480 --> 0:17:33.679 anyone who knew his background or knew the reasons he 0:17:33.720 --> 0:17:37.400 had been chosen would be utterly unsurprised by the fact 0:17:37.440 --> 0:17:39.719 that he's voting this way. Um. I don't know if 0:17:39.760 --> 0:17:42.760 Susan Collins knew she was lying to herself, but she 0:17:42.840 --> 0:17:44.280 was lying to herself, right, I mean, I don't know 0:17:44.280 --> 0:17:47.040 if this was a case of her lying to everyone 0:17:47.080 --> 0:17:49.600 else because she already didn't believe what brick Havana was saying. 0:17:49.640 --> 0:17:51.600 I think it's more likely that she thought brick Havanaugh 0:17:51.680 --> 0:17:55.040 was since here um and simply was You know, it 0:17:55.119 --> 0:17:57.280 was a case of wishful thinking, I would imagine more 0:17:57.280 --> 0:18:00.200 than anything else, because most people who have been paying 0:18:00.200 --> 0:18:02.960 attention to Justice Kavina are not surprised by where he's 0:18:03.000 --> 0:18:06.600 coming out on this. Justice Alito claims there is no 0:18:07.280 --> 0:18:11.720 right constitutional right to an abortion, but others have questioned. 0:18:12.000 --> 0:18:15.840 I guess that the foundation of Roe v. Wade in 0:18:15.960 --> 0:18:19.880 terms of under the guise of the right to privacy, Um, 0:18:20.080 --> 0:18:23.720 in in terms that sort of the average person can understand. 0:18:24.520 --> 0:18:28.560 Can you tell us the foundational principles behind Roe vi 0:18:28.800 --> 0:18:33.919 Wade and why in some circles they have been controversial? Sure? So, 0:18:34.040 --> 0:18:37.439 Ruby Wade was not based on the text of the Constitution, 0:18:37.520 --> 0:18:39.919 which you know doesn't mention a right to abortion or frankly, 0:18:40.040 --> 0:18:41.680 a right to marry or a lot of other rights. 0:18:41.920 --> 0:18:44.560 And it was right to vote right. It wasn't based 0:18:44.600 --> 0:18:47.040 on the history of the Constitution because, as Justice Leader 0:18:47.160 --> 0:18:49.320 rightly points out, at the time the Nineteenth Amendment was 0:18:49.359 --> 0:18:50.879 being written, no one would have thought there was a 0:18:50.960 --> 0:18:54.040 right to abortion. The Court instead looked at its own precedence, 0:18:54.080 --> 0:18:57.600 which looked at and developed ideas about autonomy and bodily 0:18:57.640 --> 0:19:01.320 integrity related to things like marriage and creation. Um. And 0:19:01.359 --> 0:19:03.680 that was controversial because I think people thought that by 0:19:03.720 --> 0:19:05.600 not looking at texture history, the Court was sort of 0:19:05.680 --> 0:19:08.920 leaving Row open to more criticism. UM. Ruth for the 0:19:09.000 --> 0:19:11.040 late Ruth Vader Gainsburgh, thought it would be better for 0:19:11.119 --> 0:19:13.199 the Court to have relied on equal protection cause and 0:19:13.240 --> 0:19:16.640 the idea of sex discrimination to to create a foundation 0:19:16.680 --> 0:19:19.200 for abortion rights. It's worth emphasizing that that this draft 0:19:19.280 --> 0:19:21.560 is not just an exercise and saying Row was wrong. 0:19:21.840 --> 0:19:24.000 It's an exercise and saying there is no foundation for 0:19:24.040 --> 0:19:26.399 abortion rights full stop, no matter what you come up with. 0:19:26.480 --> 0:19:29.160 And the Court explicitly says there can be no equal 0:19:29.200 --> 0:19:33.200 protection rationale um, ironically, because the Court's precedents say there 0:19:33.240 --> 0:19:35.720 can be no rationale. The reason that's ironical, course, is 0:19:35.760 --> 0:19:39.000 the Court is dismantling fifty years of precedent um and 0:19:39.040 --> 0:19:41.159 then saying part of the reason that that has to 0:19:41.200 --> 0:19:44.159 happen is because of other precedents, saying that discrimination on 0:19:44.200 --> 0:19:46.160 the basis of pregnancy is not the same thing as 0:19:46.160 --> 0:19:49.600 the basis a discrimination on the basis of sex. So 0:19:49.640 --> 0:19:51.640 this is the Court essentially trying to close the door 0:19:51.680 --> 0:19:55.119 to any future constitutional argument for abortion rights, not just 0:19:55.200 --> 0:19:57.560 the ones that Rode relied on. Have he said that 0:19:57.640 --> 0:20:01.960 would it have been a stronger UH decision had it 0:20:02.119 --> 0:20:06.520 been based on as the late Justice Ginsburg had urged 0:20:07.240 --> 0:20:11.480 the equal protection statue, Absolutely, we would have been a 0:20:11.520 --> 0:20:15.000 stronger opinion. I think the drafts suggests that it ultimately 0:20:15.000 --> 0:20:18.280 wouldn't have mattered, and that if these were the people 0:20:18.359 --> 0:20:21.199 on the court, they probably would have overruled Row anyway. 0:20:21.240 --> 0:20:23.440 It would have made their job harder, right, It would 0:20:23.440 --> 0:20:25.840 have made it harder for them to say, well, look 0:20:25.840 --> 0:20:28.199 here all these progressives who support a worship rights who 0:20:28.200 --> 0:20:31.840 have also criticized this decision. But I think at the 0:20:31.920 --> 0:20:34.080 end of the day. This was about more than just 0:20:34.200 --> 0:20:36.760 the court's reasoning, although that was certainly important, it goes 0:20:36.800 --> 0:20:39.399 well beyond that. Did you think there was a chance 0:20:39.480 --> 0:20:42.240 that they would chip away at Row and not want 0:20:42.280 --> 0:20:46.960 it overturned completely? Um? No, I mean not long term. 0:20:47.080 --> 0:20:50.560 Like I think before oral argument in December, I was 0:20:50.600 --> 0:20:52.840 of the opinion that so one spread cabinal was confirmed 0:20:52.880 --> 0:20:54.359 to the Court. I thought it was a lock that 0:20:54.359 --> 0:20:55.960 they were going to overturn Row, but I didn't know 0:20:56.000 --> 0:20:58.040 when it was going to happen. And I thought, from 0:20:58.040 --> 0:21:00.919 the standpoint of just conserving the courts institute legitimacy, there 0:21:01.000 --> 0:21:03.439 was some value in, you know, and going through the 0:21:03.480 --> 0:21:06.280 motions and appearing to take this seriously and making it 0:21:06.320 --> 0:21:08.240 seem as if it was not just an automatic that 0:21:08.280 --> 0:21:10.960 when you put certain people on the court you get 0:21:11.000 --> 0:21:14.120 partisan outcomes. Um. So, I'm not surprised by the fact 0:21:14.160 --> 0:21:17.600 that it's happening. I'm surprised by the timing. Um. Chief 0:21:17.640 --> 0:21:20.840 Justice Roberts clearly thought that there was a chance that 0:21:20.880 --> 0:21:23.840 the Court would potentially do this in multiple steps, or 0:21:23.880 --> 0:21:26.560 maybe even stop at getting rid of viability. There's no 0:21:26.720 --> 0:21:30.120 sign whatsoever that the justices have any interest in doing that. 0:21:30.440 --> 0:21:33.159 It seems that we're headed to a kind of absolute 0:21:33.240 --> 0:21:37.120 overruling and one that's pretty rapid. What is the impact 0:21:37.240 --> 0:21:40.480 of this decision, It's hard to overstate. I mean, they're 0:21:40.640 --> 0:21:44.679 going to be impacts on lots of people's lives, people 0:21:44.720 --> 0:21:47.960 who can be pregnant. Um, just as was the case 0:21:48.000 --> 0:21:50.800 with the war on drugs. We would expect those impacts 0:21:50.800 --> 0:21:52.959 to be felt the most acutely by people who are 0:21:53.000 --> 0:21:55.400 in the most heavily policed communities, who are the people 0:21:55.400 --> 0:21:57.760 are most likely to be found out if they're having abortions. 0:21:58.040 --> 0:22:02.320 There will be people impacts on people who never seek abortions, 0:22:02.359 --> 0:22:05.720 because doctors will be reluctant to treat ectopic pregnancies or 0:22:05.760 --> 0:22:08.520 incomplete miscarriages or other things that may be perceived as 0:22:08.520 --> 0:22:11.520 abortion because they're unwilling to lose their licenses or go 0:22:11.600 --> 0:22:14.440 to prison. Um. It's going to affect people in blue 0:22:14.440 --> 0:22:16.880