WEBVTT - What's Next for Roe v. Wade? 0:00:01.920 --> 0:00:06.480 Welcome to brain Stuff, a production of iHeart Radio, Hey 0:00:06.519 --> 0:00:11.799 brain Stuff. Lauren Bogelbaum here. Nearly fifty years ago, the U. S. 0:00:11.800 --> 0:00:15.040 Supreme Court made one of its most controversial rulings with 0:00:15.120 --> 0:00:19.360 its landmark decision in Roe v. Wade. The ruling declared 0:00:19.400 --> 0:00:23.720 that states criminalizing abortion violates a woman's right to due process, 0:00:24.280 --> 0:00:26.759 meaning a woman has the right to choose whether to 0:00:26.840 --> 0:00:32.159 terminate a pregnancy with limited government restrictions. Until that point, 0:00:32.320 --> 0:00:35.720 nearly all fifty states outlawed abortion, except in cases to 0:00:35.800 --> 0:00:38.919 save a woman's life or health, or in situations such 0:00:38.960 --> 0:00:43.480 as rape, incest, or fetal anomaly. In the years since 0:00:43.520 --> 0:00:47.440 that landmark decision, state legislators have made numerous attempts to 0:00:47.520 --> 0:00:51.159 chip away at abortion rights through ballot measures and legislative moves, 0:00:51.600 --> 0:00:54.600 and together have passed more than one thousand, three hundred 0:00:54.640 --> 0:00:58.760 restrictions on abortion. Dozens more are currently making their way 0:00:58.800 --> 0:01:02.320 through state legislatures, but the president set by Roe v. 0:01:02.440 --> 0:01:09.480 Wade and its progeny case planned Parenthood v. Casey, remain intact. However, 0:01:09.640 --> 0:01:12.040 a Mississippi case set to be reviewed this fall by 0:01:12.040 --> 0:01:14.840 the Supreme Court holds the potential to shake the very 0:01:14.880 --> 0:01:19.160 foundation upon which these cases stand deep aftershocks of which 0:01:19.200 --> 0:01:22.759 will either strengthen or reshape the future of abortion rights 0:01:22.760 --> 0:01:28.319 in America. It began on January twenty second of nineteen 0:01:28.360 --> 0:01:31.400 seventy three, when, by a vote of seven to two, 0:01:31.640 --> 0:01:35.520 the Supreme Court legalized abortion in the US under Roe v. Wade. 0:01:36.280 --> 0:01:38.360 The Court's judgment was based on the decision that a 0:01:38.360 --> 0:01:41.399 woman's right determinate a pregnancy fell under the freedom of 0:01:41.440 --> 0:01:44.800 personal choice in family matters protected by the fourteenth Amendment 0:01:44.880 --> 0:01:49.720 to the U. S Constitution. The case created the trimester system, 0:01:50.000 --> 0:01:53.520 which says states cannot impose any restrictions on women choosing 0:01:53.520 --> 0:01:56.840 to terminate their pregnancies during the first trimester, though it 0:01:56.880 --> 0:02:00.440 does allow some government limits in the second trimester. The 0:02:00.520 --> 0:02:03.600 states can restrict door ban abortions in the last trimester, 0:02:03.960 --> 0:02:08.519 once the fetus becomes able to live outside the womb. However, 0:02:08.960 --> 0:02:12.080 Roe v. Wade also established that in the final trimester, 0:02:12.400 --> 0:02:15.360 a woman could obtain an abortion if doctors certify that 0:02:15.400 --> 0:02:17.920 it is necessary to save the life or health of 0:02:17.919 --> 0:02:23.320 the woman. In nineteen ninety two, the Supreme Court made 0:02:23.360 --> 0:02:27.840 another landmark decision in Planned Parenthood v. Casey. In that case, 0:02:28.040 --> 0:02:30.800 the Court upheld a woman's constitutional right to have an 0:02:30.800 --> 0:02:35.239 abortion established by Rowe, but also applied the undue burden 0:02:35.360 --> 0:02:39.440 standard for abortion restrictions, establishing that no laws should be 0:02:39.480 --> 0:02:45.080 too burdensome or restrictive of one's fundamental rights. There have 0:02:45.160 --> 0:02:48.040 been numerous challenges to Rowe and Casey through the years 0:02:48.160 --> 0:02:51.320 that the Supreme Court has struck down, including a ban 0:02:51.440 --> 0:02:54.280 after six weeks in North Dakota and a ban after 0:02:54.320 --> 0:02:57.680 twelve weeks in Arkansas. The Court also struck down at 0:02:57.720 --> 0:03:01.919 twenty sixteen Texas law that impeded in exibilities to perform abortions. 0:03:03.320 --> 0:03:06.800 Earlier this year, however, Texas lawmakers found a way to 0:03:06.800 --> 0:03:10.960 get around the Supreme Court, at least for now. At 0:03:11.000 --> 0:03:16.079 midnight on September one, the nation's strictest abortion law went 0:03:16.120 --> 0:03:19.760 into effect in the state, known as the Fetal Heartbeat 0:03:19.760 --> 0:03:23.280 Bill or SP eight. The law bands abortions after six 0:03:23.320 --> 0:03:26.400 weeks of pregnancy. That is, six weeks after a person's 0:03:26.480 --> 0:03:29.760 last menstrual cycle, which is before most people know they're 0:03:29.760 --> 0:03:33.400 pregnant and far earlier than legally provided by Roe v. Wade. 0:03:34.800 --> 0:03:37.520 What makes Texas law different from others is that it's 0:03:37.600 --> 0:03:43.320 enforceable only through private civil action. Essentially, that means that 0:03:43.360 --> 0:03:47.440 the law empowers citizens to sue abortion providers or anyone 0:03:47.520 --> 0:03:50.640 who helps another person get an abortion or even intends 0:03:50.680 --> 0:03:54.440 to assist someone after a so called fetal heartbeat has 0:03:54.480 --> 0:03:58.480 been detected, which the bill defines as cardiac activity, or 0:03:58.600 --> 0:04:02.160 the steady and repetitive contraction of the fetal heart within 0:04:02.200 --> 0:04:06.240 the gestational sec although biologically, the hard as we know 0:04:06.320 --> 0:04:08.320 it has not developed by six weeks, so it's not 0:04:08.360 --> 0:04:12.360 really a heartbeat, but rather the just coordinating effects of 0:04:12.360 --> 0:04:17.520 a small group of cardiac cells. The person suing does 0:04:17.520 --> 0:04:20.520 not have to be connected to the person considering the abortion, 0:04:20.839 --> 0:04:23.279 or to a provider, or even live in the state 0:04:23.320 --> 0:04:27.040 of Texas. If the accuser wins their case, the person 0:04:27.240 --> 0:04:29.839 or entity being sued would have to pay the accuser 0:04:30.040 --> 0:04:32.719 or accusers at least ten thousand dollars, as well as 0:04:32.800 --> 0:04:37.400 costs for attorney's fees, according to the law. An independent 0:04:37.440 --> 0:04:41.440 abortion provider in Texas called Whole Woman's Health then challenged 0:04:41.520 --> 0:04:44.479 the law in an emergency application to the Supreme Court 0:04:44.880 --> 0:04:47.839 on the grounds of the six week ban was unconstitutional. 0:04:48.680 --> 0:04:51.679 The Supreme Court remained mute on the subject until hours 0:04:51.720 --> 0:04:55.320 before the law went into effect, issuing an unsigned opinion 0:04:55.480 --> 0:04:59.080 consisting of a single long paragraph that stated the abortion 0:04:59.080 --> 0:05:03.920 providers failed to make their case. Though Chief Justice John Roberts, 0:05:03.960 --> 0:05:07.000 who was appointed by Republican President George W. Bush, and 0:05:07.320 --> 0:05:11.320 left leaning Justices Stephen Bryer, Elena Kagan, and Sonya Soto 0:05:11.360 --> 0:05:16.560 Mayor dissented for the article. This episode is based on 0:05:16.720 --> 0:05:20.120 how Stuff Works. Spoke with Stephanie Lindquist, a Foundation Professor 0:05:20.160 --> 0:05:22.919 of law and political science at Arizona State University and 0:05:23.000 --> 0:05:26.919 a recognized expert on the Supreme Court. She explained that 0:05:26.960 --> 0:05:29.520 the Texas law was able to skirt a Supreme Court 0:05:29.520 --> 0:05:32.920 review at this juncture quote because it relies on private 0:05:32.960 --> 0:05:36.159 actors to enforce the law, as opposed to state officials, 0:05:36.200 --> 0:05:39.200 and no one yet has enforced it. The courts are 0:05:39.320 --> 0:05:42.120 very reluctant to resolve cases that have not yet reached 0:05:42.120 --> 0:05:47.080 a concrete dispute. However, the U. S Department of Justice 0:05:47.240 --> 0:05:52.560 has a different source of standing, she explains. On September nine, 0:05:52.920 --> 0:05:55.760 the Department of Justice sued Texas on behalf of US 0:05:55.800 --> 0:05:58.800 citizens on the grounds that texas Is abortion law is 0:05:58.800 --> 0:06:02.920 a violation of federal law. Attorney General Merrick Garland said 0:06:03.000 --> 0:06:07.000 during a news conference quote the act is clearly unconstitutional 0:06:07.160 --> 0:06:12.440 under longstanding Supreme Court president The Justice Department filed the 0:06:12.480 --> 0:06:15.359 lawsuit in the Western District of Texas and seeks a 0:06:15.400 --> 0:06:19.520 permanent injunction, but the case will likely eventually make its 0:06:19.560 --> 0:06:24.680 way to the Supreme Court. When Rowe went into effect 0:06:24.720 --> 0:06:28.039 in nineteen seventy three, the majority of the Court comprised 0:06:28.080 --> 0:06:32.719 Republican appointed justices. Even Justice Harry Blackman, who wrote the 0:06:32.760 --> 0:06:35.680 Roe v. Wade opinion, had been appointed by Republican President 0:06:35.760 --> 0:06:41.400 Richard Nixon. Since then, Linquist said, the ideological orientation toward 0:06:41.480 --> 0:06:45.560 abortion has changed. The Republican Party is now firmly entrenched 0:06:45.640 --> 0:06:50.599 as the party that opposes abortion. Before President Donald Trump 0:06:50.640 --> 0:06:54.120 took office in seventeen, he vowed to appoint justices to 0:06:54.160 --> 0:06:58.120 the Supreme Court to overturn Roe v. Wade. Justice Anthony 0:06:58.160 --> 0:07:02.400 Kennedy's retirement in and Ruth Bader Ginsburg's death in September 0:07:03.320 --> 0:07:06.479 allowed Trump to do so with conservative picks Sprint Kavanaugh 0:07:06.560 --> 0:07:10.200 and Amy Coney Barrett. The Supreme Court now has a 0:07:10.240 --> 0:07:13.760 six to three conservative majority, with all six having taken 0:07:13.880 --> 0:07:18.920 hostile positions against abortion at one point or another. Since 0:07:19.040 --> 0:07:22.360 Roe was decided, legislators in conservative states have pressed to 0:07:22.400 --> 0:07:26.200 impose additional restrictions on abortion, but Linquist says they now 0:07:26.240 --> 0:07:28.960 see a window of opportunity with the personnel changes at 0:07:28.960 --> 0:07:33.000 the Supreme Court quote, with the majority of justices being 0:07:33.040 --> 0:07:36.280 Catholic and most of them being appointed by Republican presidents. 0:07:36.640 --> 0:07:39.560 The assumption is that now is the time strike while 0:07:39.560 --> 0:07:42.400 the iron is hot, legislation can finally get to the 0:07:42.400 --> 0:07:45.520 Supreme Court where Rowe could be challenged and struck down. 0:07:46.960 --> 0:07:50.120 Another such opportunity to entice the Supreme Court to revisit 0:07:50.200 --> 0:07:53.600 Roe v. Wade presented itself in Dobbs v. Jackson Women's 0:07:53.600 --> 0:07:58.040 Health Organization. This case stems from a law passed by 0:07:58.040 --> 0:08:02.320 the Mississippi legislature inan that banned abortions after the fifteenth 0:08:02.320 --> 0:08:06.880 week of pregnancy. Jackson Women's Health Organization, the only licensed 0:08:06.880 --> 0:08:12.600 abortion provider in Mississippi, challenged the law's constitutionality. After a U. S. 0:08:12.640 --> 0:08:15.040 District Court and the U. S. District Court of Appeals 0:08:15.040 --> 0:08:18.240 for the Fifth Circuit sided with the clinic, Mississippi took 0:08:18.240 --> 0:08:22.920 the case to the Supreme Court. On May sevente the 0:08:22.960 --> 0:08:25.520 Supreme Court announced it would review the case this fall, 0:08:26.000 --> 0:08:28.840 the outcome of which could impact the president's set by 0:08:28.840 --> 0:08:33.640 both grow v. Wade and Planned Parenthood v. Casey. So 0:08:33.880 --> 0:08:38.360 let's talk about precedents. They're considered as authority for deciding 0:08:38.440 --> 0:08:44.040 subsequent cases involving similar facts or legal issues. The concept 0:08:44.120 --> 0:08:47.840 called sterry decisive, which means let the decision stand in Latin, 0:08:48.320 --> 0:08:52.320 provides stability and predictability and law. When a new president 0:08:52.400 --> 0:08:55.280 is established or law is changed on an issue, it's 0:08:55.320 --> 0:09:00.200 known as a landmark decision. O Linquist said, president is 0:09:00.240 --> 0:09:03.360 one of the cornerstones of our judicial system. The system 0:09:03.400 --> 0:09:06.560 of precedent provides that when courts make decisions in those 0:09:06.600 --> 0:09:09.839 decisions become law, they will remain on the books until 0:09:09.880 --> 0:09:13.520 that same court or an appellate court over rules those precedents. 0:09:15.240 --> 0:09:18.760 Judges and justices often rely on precedents to make rulings 0:09:18.760 --> 0:09:22.680 in other cases. For example, five justices relied on the 0:09:22.720 --> 0:09:26.040 precedent set by Casey when striking down a Louisiana law 0:09:26.240 --> 0:09:29.600 that would have required doctors performing abortions to have admissions 0:09:29.640 --> 0:09:32.920 privileges at a state authorized hospital within thirty miles that's 0:09:32.960 --> 0:09:36.920 forty eight kilometers of the clinic. The Supreme Court can 0:09:36.960 --> 0:09:40.880 overturn an existing precedent with a majority vote, and this happens, 0:09:40.960 --> 0:09:44.800 perhaps surprisingly more often than the general public realizes, about 0:09:44.840 --> 0:09:48.120 two to three times a term. Linquist says, though these cases, 0:09:48.280 --> 0:09:52.640 unlike Row, aren't ones that make the news. If Row 0:09:52.840 --> 0:09:57.600 is ultimately upended, the aftershocks would be felt immediately. Eleven 0:09:57.640 --> 0:10:00.400 states have trigger laws in place that would in stantly 0:10:00.400 --> 0:10:05.000 ban abortions. Conversely, fourteen states plus Washington, d c. Have 0:10:05.160 --> 0:10:10.240 laws in place to protect abortion access. Overturning Row would 0:10:10.240 --> 0:10:14.920 also add strength to Texas sp eight law. Linquist says, However, 0:10:15.080 --> 0:10:18.800 if Row is upheld quote, it will have major implications 0:10:18.840 --> 0:10:21.840 for the Texas case, simply because it will reaffirm the 0:10:21.880 --> 0:10:27.000 core right to abortion prior to viability. The Supreme Court 0:10:27.040 --> 0:10:29.600 isn't likely to deliver a decision in the Mississippi case 0:10:29.679 --> 0:10:38.839 until the spring or early summer. Of today's episode is 0:10:38.880 --> 0:10:41.240 based on the article What's next for Roe v. Wade 0:10:41.240 --> 0:10:43.400 in the Courts on how stuff Works dot Com, written 0:10:43.400 --> 0:10:46.199 by Jennifer Walker. Journey brain Stuff is production by Heart 0:10:46.280 --> 0:10:48.480 Radio in partnership with how Stuffworks dot Com and is 0:10:48.480 --> 0:10:51.880 produced by Tyler Klang. Four more podcasts my Heart Radio 0:10:52.080 --> 0:10:54.720 visit the I heart Radio app, Apple podcasts, or wherever 0:10:54.760 --> 0:10:56.120 you listen to your favorite shows.