Speaker 1: Welcome to brain Stuff, a production of iHeart Radio, Hey
Speaker 1: brain Stuff. Lauren Bogelbaum here. Nearly fifty years ago, the U. S.
Speaker 1: Supreme Court made one of its most controversial rulings with
Speaker 1: its landmark decision in Roe v. Wade. The ruling declared
Speaker 1: that states criminalizing abortion violates a woman's right to due process,
Speaker 1: meaning a woman has the right to choose whether to
Speaker 1: terminate a pregnancy with limited government restrictions. Until that point,
Speaker 1: nearly all fifty states outlawed abortion, except in cases to
Speaker 1: save a woman's life or health, or in situations such
Speaker 1: as rape, incest, or fetal anomaly. In the years since
Speaker 1: that landmark decision, state legislators have made numerous attempts to
Speaker 1: chip away at abortion rights through ballot measures and legislative moves,
Speaker 1: and together have passed more than one thousand, three hundred
Speaker 1: restrictions on abortion. Dozens more are currently making their way
Speaker 1: through state legislatures, but the president set by Roe v.
Speaker 1: Wade and its progeny case planned Parenthood v. Casey, remain intact. However,
Speaker 1: a Mississippi case set to be reviewed this fall by
Speaker 1: the Supreme Court holds the potential to shake the very
Speaker 1: foundation upon which these cases stand deep aftershocks of which
Speaker 1: will either strengthen or reshape the future of abortion rights
Speaker 1: in America. It began on January twenty second of nineteen
Speaker 1: seventy three, when, by a vote of seven to two,
Speaker 1: the Supreme Court legalized abortion in the US under Roe v. Wade.
Speaker 1: The Court's judgment was based on the decision that a
Speaker 1: woman's right determinate a pregnancy fell under the freedom of
Speaker 1: personal choice in family matters protected by the fourteenth Amendment
Speaker 1: to the U. S Constitution. The case created the trimester system,
Speaker 1: which says states cannot impose any restrictions on women choosing
Speaker 1: to terminate their pregnancies during the first trimester, though it
Speaker 1: does allow some government limits in the second trimester. The
Speaker 1: states can restrict door ban abortions in the last trimester,
Speaker 1: once the fetus becomes able to live outside the womb. However,
Speaker 1: Roe v. Wade also established that in the final trimester,
Speaker 1: a woman could obtain an abortion if doctors certify that
Speaker 1: it is necessary to save the life or health of
Speaker 1: the woman. In nineteen ninety two, the Supreme Court made
Speaker 1: another landmark decision in Planned Parenthood v. Casey. In that case,
Speaker 1: the Court upheld a woman's constitutional right to have an
Speaker 1: abortion established by Rowe, but also applied the undue burden
Speaker 1: standard for abortion restrictions, establishing that no laws should be
Speaker 1: too burdensome or restrictive of one's fundamental rights. There have
Speaker 1: been numerous challenges to Rowe and Casey through the years
Speaker 1: that the Supreme Court has struck down, including a ban
Speaker 1: after six weeks in North Dakota and a ban after
Speaker 1: twelve weeks in Arkansas. The Court also struck down at
Speaker 1: twenty sixteen Texas law that impeded in exibilities to perform abortions.
Speaker 1: Earlier this year, however, Texas lawmakers found a way to
Speaker 1: get around the Supreme Court, at least for now. At
Speaker 1: midnight on September one, the nation's strictest abortion law went
Speaker 1: into effect in the state, known as the Fetal Heartbeat
Speaker 1: Bill or SP eight. The law bands abortions after six
Speaker 1: weeks of pregnancy. That is, six weeks after a person's
Speaker 1: last menstrual cycle, which is before most people know they're
Speaker 1: pregnant and far earlier than legally provided by Roe v. Wade.
Speaker 1: What makes Texas law different from others is that it's
Speaker 1: enforceable only through private civil action. Essentially, that means that
Speaker 1: the law empowers citizens to sue abortion providers or anyone
Speaker 1: who helps another person get an abortion or even intends
Speaker 1: to assist someone after a so called fetal heartbeat has
Speaker 1: been detected, which the bill defines as cardiac activity, or
Speaker 1: the steady and repetitive contraction of the fetal heart within
Speaker 1: the gestational sec although biologically, the hard as we know
Speaker 1: it has not developed by six weeks, so it's not
Speaker 1: really a heartbeat, but rather the just coordinating effects of
Speaker 1: a small group of cardiac cells. The person suing does
Speaker 1: not have to be connected to the person considering the abortion,
Speaker 1: or to a provider, or even live in the state
Speaker 1: of Texas. If the accuser wins their case, the person
Speaker 1: or entity being sued would have to pay the accuser
Speaker 1: or accusers at least ten thousand dollars, as well as
Speaker 1: costs for attorney's fees, according to the law. An independent
Speaker 1: abortion provider in Texas called Whole Woman's Health then challenged
Speaker 1: the law in an emergency application to the Supreme Court
Speaker 1: on the grounds of the six week ban was unconstitutional.
Speaker 1: The Supreme Court remained mute on the subject until hours
Speaker 1: before the law went into effect, issuing an unsigned opinion
Speaker 1: consisting of a single long paragraph that stated the abortion
Speaker 1: providers failed to make their case. Though Chief Justice John Roberts,
Speaker 1: who was appointed by Republican President George W. Bush, and
Speaker 1: left leaning Justices Stephen Bryer, Elena Kagan, and Sonya Soto
Speaker 1: Mayor dissented for the article. This episode is based on
Speaker 1: how Stuff Works. Spoke with Stephanie Lindquist, a Foundation Professor
Speaker 1: of law and political science at Arizona State University and
Speaker 1: a recognized expert on the Supreme Court. She explained that
Speaker 1: the Texas law was able to skirt a Supreme Court
Speaker 1: review at this juncture quote because it relies on private
Speaker 1: actors to enforce the law, as opposed to state officials,
Speaker 1: and no one yet has enforced it. The courts are
Speaker 1: very reluctant to resolve cases that have not yet reached
Speaker 1: a concrete dispute. However, the U. S Department of Justice
Speaker 1: has a different source of standing, she explains. On September nine,
Speaker 1: the Department of Justice sued Texas on behalf of US
Speaker 1: citizens on the grounds that texas Is abortion law is
Speaker 1: a violation of federal law. Attorney General Merrick Garland said
Speaker 1: during a news conference quote the act is clearly unconstitutional
Speaker 1: under longstanding Supreme Court president The Justice Department filed the
Speaker 1: lawsuit in the Western District of Texas and seeks a
Speaker 1: permanent injunction, but the case will likely eventually make its
Speaker 1: way to the Supreme Court. When Rowe went into effect
Speaker 1: in nineteen seventy three, the majority of the Court comprised
Speaker 1: Republican appointed justices. Even Justice Harry Blackman, who wrote the
Speaker 1: Roe v. Wade opinion, had been appointed by Republican President
Speaker 1: Richard Nixon. Since then, Linquist said, the ideological orientation toward
Speaker 1: abortion has changed. The Republican Party is now firmly entrenched
Speaker 1: as the party that opposes abortion. Before President Donald Trump
Speaker 1: took office in seventeen, he vowed to appoint justices to
Speaker 1: the Supreme Court to overturn Roe v. Wade. Justice Anthony
Speaker 1: Kennedy's retirement in and Ruth Bader Ginsburg's death in September
Speaker 1: allowed Trump to do so with conservative picks Sprint Kavanaugh
Speaker 1: and Amy Coney Barrett. The Supreme Court now has a
Speaker 1: six to three conservative majority, with all six having taken
Speaker 1: hostile positions against abortion at one point or another. Since
Speaker 1: Roe was decided, legislators in conservative states have pressed to
Speaker 1: impose additional restrictions on abortion, but Linquist says they now
Speaker 1: see a window of opportunity with the personnel changes at
Speaker 1: the Supreme Court quote, with the majority of justices being
Speaker 1: Catholic and most of them being appointed by Republican presidents.
Speaker 1: The assumption is that now is the time strike while
Speaker 1: the iron is hot, legislation can finally get to the
Speaker 1: Supreme Court where Rowe could be challenged and struck down.
Speaker 1: Another such opportunity to entice the Supreme Court to revisit
Speaker 1: Roe v. Wade presented itself in Dobbs v. Jackson Women's
Speaker 1: Health Organization. This case stems from a law passed by
Speaker 1: the Mississippi legislature inan that banned abortions after the fifteenth
Speaker 1: week of pregnancy. Jackson Women's Health Organization, the only licensed
Speaker 1: abortion provider in Mississippi, challenged the law's constitutionality. After a U. S.
Speaker 1: District Court and the U. S. District Court of Appeals
Speaker 1: for the Fifth Circuit sided with the clinic, Mississippi took
Speaker 1: the case to the Supreme Court. On May sevente the
Speaker 1: Supreme Court announced it would review the case this fall,
Speaker 1: the outcome of which could impact the president's set by
Speaker 1: both grow v. Wade and Planned Parenthood v. Casey. So
Speaker 1: let's talk about precedents. They're considered as authority for deciding
Speaker 1: subsequent cases involving similar facts or legal issues. The concept
Speaker 1: called sterry decisive, which means let the decision stand in Latin,
Speaker 1: provides stability and predictability and law. When a new president
Speaker 1: is established or law is changed on an issue, it's
Speaker 1: known as a landmark decision. O Linquist said, president is
Speaker 1: one of the cornerstones of our judicial system. The system
Speaker 1: of precedent provides that when courts make decisions in those
Speaker 1: decisions become law, they will remain on the books until
Speaker 1: that same court or an appellate court over rules those precedents.
Speaker 1: Judges and justices often rely on precedents to make rulings
Speaker 1: in other cases. For example, five justices relied on the
Speaker 1: precedent set by Casey when striking down a Louisiana law
Speaker 1: that would have required doctors performing abortions to have admissions
Speaker 1: privileges at a state authorized hospital within thirty miles that's
Speaker 1: forty eight kilometers of the clinic. The Supreme Court can
Speaker 1: overturn an existing precedent with a majority vote, and this happens,
Speaker 1: perhaps surprisingly more often than the general public realizes, about
Speaker 1: two to three times a term. Linquist says, though these cases,
Speaker 1: unlike Row, aren't ones that make the news. If Row
Speaker 1: is ultimately upended, the aftershocks would be felt immediately. Eleven
Speaker 1: states have trigger laws in place that would in stantly
Speaker 1: ban abortions. Conversely, fourteen states plus Washington, d c. Have
Speaker 1: laws in place to protect abortion access. Overturning Row would
Speaker 1: also add strength to Texas sp eight law. Linquist says, However,
Speaker 1: if Row is upheld quote, it will have major implications
Speaker 1: for the Texas case, simply because it will reaffirm the
Speaker 1: core right to abortion prior to viability. The Supreme Court
Speaker 1: isn't likely to deliver a decision in the Mississippi case
Speaker 1: until the spring or early summer. Of today's episode is
Speaker 1: based on the article What's next for Roe v. Wade
Speaker 1: in the Courts on how stuff Works dot Com, written
Speaker 1: by Jennifer Walker. Journey brain Stuff is production by Heart
Speaker 1: Radio in partnership with how Stuffworks dot Com and is
Speaker 1: produced by Tyler Klang. Four more podcasts my Heart Radio
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