1 00:00:01,920 --> 00:00:06,480 Speaker 1: Welcome to brain Stuff, a production of iHeart Radio, Hey 2 00:00:06,519 --> 00:00:11,799 Speaker 1: brain Stuff. Lauren Bogelbaum here. Nearly fifty years ago, the U. S. 3 00:00:11,800 --> 00:00:15,040 Speaker 1: Supreme Court made one of its most controversial rulings with 4 00:00:15,120 --> 00:00:19,360 Speaker 1: its landmark decision in Roe v. Wade. The ruling declared 5 00:00:19,400 --> 00:00:23,720 Speaker 1: that states criminalizing abortion violates a woman's right to due process, 6 00:00:24,280 --> 00:00:26,759 Speaker 1: meaning a woman has the right to choose whether to 7 00:00:26,840 --> 00:00:32,159 Speaker 1: terminate a pregnancy with limited government restrictions. Until that point, 8 00:00:32,320 --> 00:00:35,720 Speaker 1: nearly all fifty states outlawed abortion, except in cases to 9 00:00:35,800 --> 00:00:38,919 Speaker 1: save a woman's life or health, or in situations such 10 00:00:38,960 --> 00:00:43,480 Speaker 1: as rape, incest, or fetal anomaly. In the years since 11 00:00:43,520 --> 00:00:47,440 Speaker 1: that landmark decision, state legislators have made numerous attempts to 12 00:00:47,520 --> 00:00:51,159 Speaker 1: chip away at abortion rights through ballot measures and legislative moves, 13 00:00:51,600 --> 00:00:54,600 Speaker 1: and together have passed more than one thousand, three hundred 14 00:00:54,640 --> 00:00:58,760 Speaker 1: restrictions on abortion. Dozens more are currently making their way 15 00:00:58,800 --> 00:01:02,320 Speaker 1: through state legislatures, but the president set by Roe v. 16 00:01:02,440 --> 00:01:09,480 Speaker 1: Wade and its progeny case planned Parenthood v. Casey, remain intact. However, 17 00:01:09,640 --> 00:01:12,040 Speaker 1: a Mississippi case set to be reviewed this fall by 18 00:01:12,040 --> 00:01:14,840 Speaker 1: the Supreme Court holds the potential to shake the very 19 00:01:14,880 --> 00:01:19,160 Speaker 1: foundation upon which these cases stand deep aftershocks of which 20 00:01:19,200 --> 00:01:22,759 Speaker 1: will either strengthen or reshape the future of abortion rights 21 00:01:22,760 --> 00:01:28,319 Speaker 1: in America. It began on January twenty second of nineteen 22 00:01:28,360 --> 00:01:31,400 Speaker 1: seventy three, when, by a vote of seven to two, 23 00:01:31,640 --> 00:01:35,520 Speaker 1: the Supreme Court legalized abortion in the US under Roe v. Wade. 24 00:01:36,280 --> 00:01:38,360 Speaker 1: The Court's judgment was based on the decision that a 25 00:01:38,360 --> 00:01:41,399 Speaker 1: woman's right determinate a pregnancy fell under the freedom of 26 00:01:41,440 --> 00:01:44,800 Speaker 1: personal choice in family matters protected by the fourteenth Amendment 27 00:01:44,880 --> 00:01:49,720 Speaker 1: to the U. S Constitution. The case created the trimester system, 28 00:01:50,000 --> 00:01:53,520 Speaker 1: which says states cannot impose any restrictions on women choosing 29 00:01:53,520 --> 00:01:56,840 Speaker 1: to terminate their pregnancies during the first trimester, though it 30 00:01:56,880 --> 00:02:00,440 Speaker 1: does allow some government limits in the second trimester. The 31 00:02:00,520 --> 00:02:03,600 Speaker 1: states can restrict door ban abortions in the last trimester, 32 00:02:03,960 --> 00:02:08,519 Speaker 1: once the fetus becomes able to live outside the womb. However, 33 00:02:08,960 --> 00:02:12,080 Speaker 1: Roe v. Wade also established that in the final trimester, 34 00:02:12,400 --> 00:02:15,360 Speaker 1: a woman could obtain an abortion if doctors certify that 35 00:02:15,400 --> 00:02:17,920 Speaker 1: it is necessary to save the life or health of 36 00:02:17,919 --> 00:02:23,320 Speaker 1: the woman. In nineteen ninety two, the Supreme Court made 37 00:02:23,360 --> 00:02:27,840 Speaker 1: another landmark decision in Planned Parenthood v. Casey. In that case, 38 00:02:28,040 --> 00:02:30,800 Speaker 1: the Court upheld a woman's constitutional right to have an 39 00:02:30,800 --> 00:02:35,239 Speaker 1: abortion established by Rowe, but also applied the undue burden 40 00:02:35,360 --> 00:02:39,440 Speaker 1: standard for abortion restrictions, establishing that no laws should be 41 00:02:39,480 --> 00:02:45,080 Speaker 1: too burdensome or restrictive of one's fundamental rights. There have 42 00:02:45,160 --> 00:02:48,040 Speaker 1: been numerous challenges to Rowe and Casey through the years 43 00:02:48,160 --> 00:02:51,320 Speaker 1: that the Supreme Court has struck down, including a ban 44 00:02:51,440 --> 00:02:54,280 Speaker 1: after six weeks in North Dakota and a ban after 45 00:02:54,320 --> 00:02:57,680 Speaker 1: twelve weeks in Arkansas. The Court also struck down at 46 00:02:57,720 --> 00:03:01,919 Speaker 1: twenty sixteen Texas law that impeded in exibilities to perform abortions. 47 00:03:03,320 --> 00:03:06,800 Speaker 1: Earlier this year, however, Texas lawmakers found a way to 48 00:03:06,800 --> 00:03:10,960 Speaker 1: get around the Supreme Court, at least for now. At 49 00:03:11,000 --> 00:03:16,079 Speaker 1: midnight on September one, the nation's strictest abortion law went 50 00:03:16,120 --> 00:03:19,760 Speaker 1: into effect in the state, known as the Fetal Heartbeat 51 00:03:19,760 --> 00:03:23,280 Speaker 1: Bill or SP eight. The law bands abortions after six 52 00:03:23,320 --> 00:03:26,400 Speaker 1: weeks of pregnancy. That is, six weeks after a person's 53 00:03:26,480 --> 00:03:29,760 Speaker 1: last menstrual cycle, which is before most people know they're 54 00:03:29,760 --> 00:03:33,400 Speaker 1: pregnant and far earlier than legally provided by Roe v. Wade. 55 00:03:34,800 --> 00:03:37,520 Speaker 1: What makes Texas law different from others is that it's 56 00:03:37,600 --> 00:03:43,320 Speaker 1: enforceable only through private civil action. Essentially, that means that 57 00:03:43,360 --> 00:03:47,440 Speaker 1: the law empowers citizens to sue abortion providers or anyone 58 00:03:47,520 --> 00:03:50,640 Speaker 1: who helps another person get an abortion or even intends 59 00:03:50,680 --> 00:03:54,440 Speaker 1: to assist someone after a so called fetal heartbeat has 60 00:03:54,480 --> 00:03:58,480 Speaker 1: been detected, which the bill defines as cardiac activity, or 61 00:03:58,600 --> 00:04:02,160 Speaker 1: the steady and repetitive contraction of the fetal heart within 62 00:04:02,200 --> 00:04:06,240 Speaker 1: the gestational sec although biologically, the hard as we know 63 00:04:06,320 --> 00:04:08,320 Speaker 1: it has not developed by six weeks, so it's not 64 00:04:08,360 --> 00:04:12,360 Speaker 1: really a heartbeat, but rather the just coordinating effects of 65 00:04:12,360 --> 00:04:17,520 Speaker 1: a small group of cardiac cells. The person suing does 66 00:04:17,520 --> 00:04:20,520 Speaker 1: not have to be connected to the person considering the abortion, 67 00:04:20,839 --> 00:04:23,279 Speaker 1: or to a provider, or even live in the state 68 00:04:23,320 --> 00:04:27,040 Speaker 1: of Texas. If the accuser wins their case, the person 69 00:04:27,240 --> 00:04:29,839 Speaker 1: or entity being sued would have to pay the accuser 70 00:04:30,040 --> 00:04:32,719 Speaker 1: or accusers at least ten thousand dollars, as well as 71 00:04:32,800 --> 00:04:37,400 Speaker 1: costs for attorney's fees, according to the law. An independent 72 00:04:37,440 --> 00:04:41,440 Speaker 1: abortion provider in Texas called Whole Woman's Health then challenged 73 00:04:41,520 --> 00:04:44,479 Speaker 1: the law in an emergency application to the Supreme Court 74 00:04:44,880 --> 00:04:47,839 Speaker 1: on the grounds of the six week ban was unconstitutional. 75 00:04:48,680 --> 00:04:51,679 Speaker 1: The Supreme Court remained mute on the subject until hours 76 00:04:51,720 --> 00:04:55,320 Speaker 1: before the law went into effect, issuing an unsigned opinion 77 00:04:55,480 --> 00:04:59,080 Speaker 1: consisting of a single long paragraph that stated the abortion 78 00:04:59,080 --> 00:05:03,920 Speaker 1: providers failed to make their case. Though Chief Justice John Roberts, 79 00:05:03,960 --> 00:05:07,000 Speaker 1: who was appointed by Republican President George W. Bush, and 80 00:05:07,320 --> 00:05:11,320 Speaker 1: left leaning Justices Stephen Bryer, Elena Kagan, and Sonya Soto 81 00:05:11,360 --> 00:05:16,560 Speaker 1: Mayor dissented for the article. This episode is based on 82 00:05:16,720 --> 00:05:20,120 Speaker 1: how Stuff Works. Spoke with Stephanie Lindquist, a Foundation Professor 83 00:05:20,160 --> 00:05:22,919 Speaker 1: of law and political science at Arizona State University and 84 00:05:23,000 --> 00:05:26,919 Speaker 1: a recognized expert on the Supreme Court. She explained that 85 00:05:26,960 --> 00:05:29,520 Speaker 1: the Texas law was able to skirt a Supreme Court 86 00:05:29,520 --> 00:05:32,920 Speaker 1: review at this juncture quote because it relies on private 87 00:05:32,960 --> 00:05:36,159 Speaker 1: actors to enforce the law, as opposed to state officials, 88 00:05:36,200 --> 00:05:39,200 Speaker 1: and no one yet has enforced it. The courts are 89 00:05:39,320 --> 00:05:42,120 Speaker 1: very reluctant to resolve cases that have not yet reached 90 00:05:42,120 --> 00:05:47,080 Speaker 1: a concrete dispute. However, the U. S Department of Justice 91 00:05:47,240 --> 00:05:52,560 Speaker 1: has a different source of standing, she explains. On September nine, 92 00:05:52,920 --> 00:05:55,760 Speaker 1: the Department of Justice sued Texas on behalf of US 93 00:05:55,800 --> 00:05:58,800 Speaker 1: citizens on the grounds that texas Is abortion law is 94 00:05:58,800 --> 00:06:02,920 Speaker 1: a violation of federal law. Attorney General Merrick Garland said 95 00:06:03,000 --> 00:06:07,000 Speaker 1: during a news conference quote the act is clearly unconstitutional 96 00:06:07,160 --> 00:06:12,440 Speaker 1: under longstanding Supreme Court president The Justice Department filed the 97 00:06:12,480 --> 00:06:15,359 Speaker 1: lawsuit in the Western District of Texas and seeks a 98 00:06:15,400 --> 00:06:19,520 Speaker 1: permanent injunction, but the case will likely eventually make its 99 00:06:19,560 --> 00:06:24,680 Speaker 1: way to the Supreme Court. When Rowe went into effect 100 00:06:24,720 --> 00:06:28,039 Speaker 1: in nineteen seventy three, the majority of the Court comprised 101 00:06:28,080 --> 00:06:32,719 Speaker 1: Republican appointed justices. Even Justice Harry Blackman, who wrote the 102 00:06:32,760 --> 00:06:35,680 Speaker 1: Roe v. Wade opinion, had been appointed by Republican President 103 00:06:35,760 --> 00:06:41,400 Speaker 1: Richard Nixon. Since then, Linquist said, the ideological orientation toward 104 00:06:41,480 --> 00:06:45,560 Speaker 1: abortion has changed. The Republican Party is now firmly entrenched 105 00:06:45,640 --> 00:06:50,599 Speaker 1: as the party that opposes abortion. Before President Donald Trump 106 00:06:50,640 --> 00:06:54,120 Speaker 1: took office in seventeen, he vowed to appoint justices to 107 00:06:54,160 --> 00:06:58,120 Speaker 1: the Supreme Court to overturn Roe v. Wade. Justice Anthony 108 00:06:58,160 --> 00:07:02,400 Speaker 1: Kennedy's retirement in and Ruth Bader Ginsburg's death in September 109 00:07:03,320 --> 00:07:06,479 Speaker 1: allowed Trump to do so with conservative picks Sprint Kavanaugh 110 00:07:06,560 --> 00:07:10,200 Speaker 1: and Amy Coney Barrett. The Supreme Court now has a 111 00:07:10,240 --> 00:07:13,760 Speaker 1: six to three conservative majority, with all six having taken 112 00:07:13,880 --> 00:07:18,920 Speaker 1: hostile positions against abortion at one point or another. Since 113 00:07:19,040 --> 00:07:22,360 Speaker 1: Roe was decided, legislators in conservative states have pressed to 114 00:07:22,400 --> 00:07:26,200 Speaker 1: impose additional restrictions on abortion, but Linquist says they now 115 00:07:26,240 --> 00:07:28,960 Speaker 1: see a window of opportunity with the personnel changes at 116 00:07:28,960 --> 00:07:33,000 Speaker 1: the Supreme Court quote, with the majority of justices being 117 00:07:33,040 --> 00:07:36,280 Speaker 1: Catholic and most of them being appointed by Republican presidents. 118 00:07:36,640 --> 00:07:39,560 Speaker 1: The assumption is that now is the time strike while 119 00:07:39,560 --> 00:07:42,400 Speaker 1: the iron is hot, legislation can finally get to the 120 00:07:42,400 --> 00:07:45,520 Speaker 1: Supreme Court where Rowe could be challenged and struck down. 121 00:07:46,960 --> 00:07:50,120 Speaker 1: Another such opportunity to entice the Supreme Court to revisit 122 00:07:50,200 --> 00:07:53,600 Speaker 1: Roe v. Wade presented itself in Dobbs v. Jackson Women's 123 00:07:53,600 --> 00:07:58,040 Speaker 1: Health Organization. This case stems from a law passed by 124 00:07:58,040 --> 00:08:02,320 Speaker 1: the Mississippi legislature inan that banned abortions after the fifteenth 125 00:08:02,320 --> 00:08:06,880 Speaker 1: week of pregnancy. Jackson Women's Health Organization, the only licensed 126 00:08:06,880 --> 00:08:12,600 Speaker 1: abortion provider in Mississippi, challenged the law's constitutionality. After a U. S. 127 00:08:12,640 --> 00:08:15,040 Speaker 1: District Court and the U. S. District Court of Appeals 128 00:08:15,040 --> 00:08:18,240 Speaker 1: for the Fifth Circuit sided with the clinic, Mississippi took 129 00:08:18,240 --> 00:08:22,920 Speaker 1: the case to the Supreme Court. On May sevente the 130 00:08:22,960 --> 00:08:25,520 Speaker 1: Supreme Court announced it would review the case this fall, 131 00:08:26,000 --> 00:08:28,840 Speaker 1: the outcome of which could impact the president's set by 132 00:08:28,840 --> 00:08:33,640 Speaker 1: both grow v. Wade and Planned Parenthood v. Casey. So 133 00:08:33,880 --> 00:08:38,360 Speaker 1: let's talk about precedents. They're considered as authority for deciding 134 00:08:38,440 --> 00:08:44,040 Speaker 1: subsequent cases involving similar facts or legal issues. The concept 135 00:08:44,120 --> 00:08:47,840 Speaker 1: called sterry decisive, which means let the decision stand in Latin, 136 00:08:48,320 --> 00:08:52,320 Speaker 1: provides stability and predictability and law. When a new president 137 00:08:52,400 --> 00:08:55,280 Speaker 1: is established or law is changed on an issue, it's 138 00:08:55,320 --> 00:09:00,200 Speaker 1: known as a landmark decision. O Linquist said, president is 139 00:09:00,240 --> 00:09:03,360 Speaker 1: one of the cornerstones of our judicial system. The system 140 00:09:03,400 --> 00:09:06,560 Speaker 1: of precedent provides that when courts make decisions in those 141 00:09:06,600 --> 00:09:09,839 Speaker 1: decisions become law, they will remain on the books until 142 00:09:09,880 --> 00:09:13,520 Speaker 1: that same court or an appellate court over rules those precedents. 143 00:09:15,240 --> 00:09:18,760 Speaker 1: Judges and justices often rely on precedents to make rulings 144 00:09:18,760 --> 00:09:22,680 Speaker 1: in other cases. For example, five justices relied on the 145 00:09:22,720 --> 00:09:26,040 Speaker 1: precedent set by Casey when striking down a Louisiana law 146 00:09:26,240 --> 00:09:29,600 Speaker 1: that would have required doctors performing abortions to have admissions 147 00:09:29,640 --> 00:09:32,920 Speaker 1: privileges at a state authorized hospital within thirty miles that's 148 00:09:32,960 --> 00:09:36,920 Speaker 1: forty eight kilometers of the clinic. The Supreme Court can 149 00:09:36,960 --> 00:09:40,880 Speaker 1: overturn an existing precedent with a majority vote, and this happens, 150 00:09:40,960 --> 00:09:44,800 Speaker 1: perhaps surprisingly more often than the general public realizes, about 151 00:09:44,840 --> 00:09:48,120 Speaker 1: two to three times a term. Linquist says, though these cases, 152 00:09:48,280 --> 00:09:52,640 Speaker 1: unlike Row, aren't ones that make the news. If Row 153 00:09:52,840 --> 00:09:57,600 Speaker 1: is ultimately upended, the aftershocks would be felt immediately. Eleven 154 00:09:57,640 --> 00:10:00,400 Speaker 1: states have trigger laws in place that would in stantly 155 00:10:00,400 --> 00:10:05,000 Speaker 1: ban abortions. Conversely, fourteen states plus Washington, d c. Have 156 00:10:05,160 --> 00:10:10,240 Speaker 1: laws in place to protect abortion access. Overturning Row would 157 00:10:10,240 --> 00:10:14,920 Speaker 1: also add strength to Texas sp eight law. Linquist says, However, 158 00:10:15,080 --> 00:10:18,800 Speaker 1: if Row is upheld quote, it will have major implications 159 00:10:18,840 --> 00:10:21,840 Speaker 1: for the Texas case, simply because it will reaffirm the 160 00:10:21,880 --> 00:10:27,000 Speaker 1: core right to abortion prior to viability. The Supreme Court 161 00:10:27,040 --> 00:10:29,600 Speaker 1: isn't likely to deliver a decision in the Mississippi case 162 00:10:29,679 --> 00:10:38,839 Speaker 1: until the spring or early summer. Of today's episode is 163 00:10:38,880 --> 00:10:41,240 Speaker 1: based on the article What's next for Roe v. Wade 164 00:10:41,240 --> 00:10:43,400 Speaker 1: in the Courts on how stuff Works dot Com, written 165 00:10:43,400 --> 00:10:46,199 Speaker 1: by Jennifer Walker. Journey brain Stuff is production by Heart 166 00:10:46,280 --> 00:10:48,480 Speaker 1: Radio in partnership with how Stuffworks dot Com and is 167 00:10:48,480 --> 00:10:51,880 Speaker 1: produced by Tyler Klang. Four more podcasts my Heart Radio 168 00:10:52,080 --> 00:10:54,720 Speaker 1: visit the I heart Radio app, Apple podcasts, or wherever 169 00:10:54,760 --> 00:10:56,120 Speaker 1: you listen to your favorite shows.