Dobbs v. Jackson Women's Health: The End of Roe

Hey everyone, this is Leon from Fiasco and Prologue Projects.

On this week's emergency episode of 5-4, Peter, Rhiannon, and Michael are talking about the draft opinion of Dobbs v.

Jackson Women's Health Organization.

That draft, written by Justice Samuel Alito and leaked to Politico, overturns Roe v.

Wade and Planned Parenthood v.

Casey, Casey, the two cases that ensure a right to abortion.

If the final holding, when released, is similar to the draft, laws already on the books in 13 states would immediately ban abortion.

Another dozen or so are extremely likely to enact bans.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4.

No patience for a cute little metaphor this week, I'm afraid.

No.

I think we're going right in.

Yeah, let's fucking go.

I'm here with Michael.

Hi, everybody.

And Rhiannon.

Hey.

This week, someone anonymously leaked the draft majority opinion in Dobbs v.

Jackson Women's Health Organization,

the case that brought a challenge to Roe v.

Wade.

The opinion is written by Sam Alito,

and as written, it would overturn Roe and Planned Parenthood v.

Casey.

It's a leaked draft, so it's not final or binding, nor do we have any drafts of the concurrences or dissents.

And at the time of the recording, we do not know who leaked it.

We know almost for certain that the decision is currently five to four.

Roberts has not joined the majority, and some reporting has claimed that Roberts is trying to carve out a sort of third way where he severely limits Roe and Casey, upholds the law in question in Mississippi, but does not strike Roe and Casey down in full.

Yeah, and we should say the law in question in Mississippi is a 15-week ban on abortions.

Right.

Currently, the law is essentially that you can start to restrict abortions after 23 or so weeks, 23, 24.

So the 15-week rule reflects a pretty serious challenge to the law as it stands.

Right.

So things are not final, of course, but it seems very, very likely that Roe will be struck down.

And while the opinion may change a bit here and there, it's also likely that the bulk of its substantive reasoning will remain.

We've been talking about the fall of Roe for a while, and I think we've always framed it pretty simply.

This is the culmination of a 50-year project with the explicit goal of destroying liberal jurisprudence from the mid-century.

Attacking the legal foundations of Roe is more than just like a goal of the conservative legal movement.

It is its entire reason for being, right?

Yes.

What's that French term?

Raison d'être or whatever?

That's it.

There you go.

I should have used that.

Modern conservative jurisprudence, like originalism, textualism, all that shit, did not exist until they created it as a way to attack Roe.

They built an entire ideology to oppose Roe and the other legal civil rights gains of that era.

And the modern court is the manifestation of that ideology.

Yes.

So this is

unequivocally depressing shit, even if it's expected.

And it comes to us in a very weird way, a leak to Politico

of just the first draft of the majority opinion.

And that has caused some consternation, some hand-wringing

among the norms lovers.

Yeah, it's unprecedented for a draft to be leaked like this, much less in such an important and controversial decision.

There's been a lot of like suppositioning online and elsewhere in the reporting about who could have leaked this draft opinion.

I think we all think it's maybe one of the liberal clerks, right?

Yeah.

I mean, look, it doesn't matter, right?

No, it doesn't.

Let's get that out of the way.

Absolutely does not matter.

I've seen people recklessly speculating on like the individual clerks, like, oh, so-and-so has this background, which makes me think it was her or him.

Right.

Right.

You know, I do think it is a liberal clerk.

I don't think it matters, but I do think it would be very funny if it turns out this was done by a conservative.

After all, the conservatives are up in arms about this and how it's destroying the institution and all that.

It's treasonous or whatever.

Yeah.

If it turns out that the conservative did this, it just

highlighting even more how political this is, it would just be fantastic.

I would love that.

The hot savvy take is that a conservative did it because I think there's some belief that if that five justice majority was sort of teetering a little bit, a clerk could leak the document

and there would be a pressure on the five justices to remain because any deviation, if you left the majority, it would look like you were bending to political pressure or whatever.

I get that, but it just feels a little too cute.

And my sense is Occam's razor this.

Some liberal clerk was fed up.

and leaked it.

That remains my best guess, but again, it doesn't really matter.

The speculation is mostly just fucking like palace intrigue.

Who gives a shit?

Right.

Lawyers love to think of some like smart analysis that doesn't actually make any fucking sense.

Like if you know what, how like human psychology works, you know?

Right, exactly.

Probably the most famous at this point reaction to the leak itself was the post by SCODIS Blog.

I forgot about this already.

SCODUS Blog is basically the foremost outlet for Supreme Court news and opinions.

And they tweeted, and I quote, it's impossible to overstate the earthquake this will cause inside the court in terms of the destruction of trust among the justices and staff.

This leak is the gravest, most unforgivable sin.

Fuck off.

Like, fuck off.

The gravest, most unforgivable sin.

That means that it's worse to leak this document than to commit a murder.

Right.

Right.

This is, this is the gravest, most unforgivable sin.

Yeah.

And I just think, like, I know SCODIS blog is not on our wavelength in terms of saying that the Supreme Court is like an illegitimate institution, right?

And this decision is illegitimate, but that is what's true.

And so whoever leaked it should be applauded.

Showing the court for what it is is important and what it is is garbage.

Yeah, liberal or conservative, hats off to you for pulling back the curtain, right?

Right.

And exposing the truth of the matter.

I think it's useful.

I think that there is genuinely no real coherent defense of why this shit isn't transparent to begin with,

right?

Drafts of legislation.

are generally public.

That's not something that's hidden from the public.

Why this in particular needs to be confidential, from what I can tell, boils down to we want to sort of maintain an air of intrigue and mystery around the court so that the sort of like

aura of our nine elders who know exactly what they're doing can be maintained,

can be perpetuated.

Who gives a shit about that?

It's sanctimonious bullshit.

Absolutely.

Absolutely.

The first time I saw that tweet, I started reading it and like literally was like, wow, SCODA's blog.

actually taking a stand for once because I just assumed it was about overturning Roe v.

Wade.

Talked about a seismic event, an earthquake.

I was like, Yeah, it is.

You're right.

Good for you.

And then I,

you know, it's like, oh, you had me there for a minute, right?

Then I read the second half of the tweet.

I was like, what?

What the fuck are you talking about?

Like, what planet are you on?

Nobody cares about that.

This is why we are a successful podcast because the fucking media coverage dedicated to the court is god-awful.

Just a bunch of boot-licking fucking losers.

Right.

Yeah.

The New York Times headlines earlier, at least earlier today, were all about the leak.

Who leaked it and Roberts investigation into the leak.

And it was just like, you're fucking kidding me?

Who cares?

Do you think anybody other than like conservative law professors give a shit about this?

They are overturning Roe.

Can we talk about that?

Can we talk about this project?

Like, why are we talking about who leaked it and how to find out?

Yeah.

And the the fact that conservatives have been talking about the leak so much makes it pretty clear that they are not excited to talk at length in the public sphere about abortion rights.

That's right.

And that makes me think we should be talking in the public sphere about abortion rights perhaps as much as possible.

Yes.

So, on to the opinion itself.

By the way, guys, I've once again gotten so angry that my dog has come to comfort me.

He's just like, Are you okay?

Are you okay?

So let's talk about the opinion itself.

Again, it's not final, but I wouldn't anticipate any major substantive changes to it.

Right.

Yeah.

So before we talk about the opinion, I think, Ree, you're going to do a substantive due process for dummies.

Yeah, let's do substantive due process 101 real quick, just if you don't know,

because Alito spends a lot of time on this portion of the decision.

And this is kind of the meaty legal part.

So substantive due process is what Roe v.

Wade is predicated on.

And this is kind of breaking it down.

We know there's a due process clause in the 14th Amendment.

And it's sometimes been interpreted to mean that part of the, like the liberty enshrined in the Constitution or protected, the liberty protected by the due process clause, you know, there are certain fundamental rights in there that are not enumerated elsewhere in the Constitution.

So this includes, for example, the right of parents to educate their children how they choose and the right to privacy, which of course is the underpinning of the right to contraception in a case called Griswold and the right to abortion in Roe and Casey.

So the substantive due process that Alito is talking about is a very narrow view of substantive due process.

What he's saying in this draft opinion is that a fundamental right exists only, only if it has existed already for generations historically.

And I don't think there has been quite so narrow an articulation from the Supreme Court on this.

Like I know Rehnquist, for example, and many conservative justices have all written in opposition to finding these substantive due process rights at all.

And one of their arguments has always been this condition that like the historical record shows that the right exists long before it's been recognized by the Supreme Court.

So what Alito is doing is looking back in history and asking whether abortion has been a right that has existed for generations and many, many years in this country.

Obviously it hasn't, although we're going to talk about how that history is pretty muddled and nuanced, which of course nuance is missing from this opinion.

And just obviously, this is a results-oriented rationale.

This rule that substantive due process rights depend on the right already existing historically is an arbitrary fucking rule.

It is policymaking.

It is judicial activism in terms of the court's own precedent.

And it's an incredibly dangerous view of substantive due process because the right to contraception, you know, that's not some historical pillar of our society.

Neither is same-sex marriage.

We're going to talk about that later.

So this is a completely backwards way of protecting rights to say that we only have the rights that we've always had.

It's extremely rigid, it's formalistic, and it's a terrible way of looking at the Constitution because it gives no room whatsoever for interpreting new rights and new norms as society evolves, as we become more enlightened.

This is regressive politics at work.

Right.

Yeah.

And I'm sure most of our listeners already know this, but if you don't, Sam Alito,

you know, appointed by George W.

Bush, is like if you programmed an AI by having it watch Fox News 24 hours a day.

Yes.

And maybe read like a conservative legal blog, you know, like the Federalist or something.

Yeah.

That's what it would spit out Sam Alito.

The purest hack on the court.

Absolutely.

This opinion reads exactly like that sort of output.

That's that's that's what we got.

Right.

So the bulk of the opinion is basically Alito trying to explain why he believes that abortion is not a right that has that is deeply rooted in our society.

Because for something to be protected under the 14th Amendment, in his view, it needs to be deeply rooted in our, like, in our history, right?

Right.

He starts off with basically like, well, it doesn't say abortion in the Constitution, right?

Which is like the lowest form of Twitter reply that you get

when you tweet about abortion or whatever.

Yeah.

And then he moves on to talking about how like abortion was widely criminalized in the 19th and early 20th centuries.

He describes it as, quote, an unbroken tradition of prohibiting abortion on pain of criminal punishment from the earliest days of common law until 1973.

Not true.

Doesn't sound right to me.

Just not true.

And look, I don't want to get too deep in this because like half the problem with this is him pretending that he has like a real firm grip on history.

And I'm not going to pretend that I'm the expert on like 500 years of history or whatever the fuck.

Sure.

Yeah.

But various historians have weighed in and basically said, well, no, it's a little more complicated than that.

Like at the time of the founding, there were really no state restrictions on abortion.

About 30 years later, they start to pop up.

However, prosecutions, especially for early-term abortions, are very, very rare.

So one historian on Twitter, whose name I can't recall, I apologize, claimed that there were zero prosecutions before 1900 for pre-viability abortions.

So again, I don't want to make like really hyper-strong claims about the history here, but Sam Alito is overstating the case without question.

Yeah.

And this analysis that he does is sort of conservatism at its essence, right?

Long-standing hierarchies and modes of organizing society must inherently be protected, right?

And anything that challenges them is inherently suspect.

So you have this like half-baked conception of where rights come from, right?

Just like

if something was common in history, that will slowly over time solidify into a right.

And as part of that analysis, he spends tons of time referring to like old treatises and legal theorists who disapproved of abortion.

He quotes Sir Edward Coke, who equated abortion with murder.

He quotes Sir Matthew Hale, who described abortion as a great crime.

These are meant to show that abortion has like long been criminalized under the law.

But Edward Coke died in 1634.

Why the fuck do we care what he thought?

Matthew Hale died in 1676.

Did they even have soap back then?

These guys were like trying to turn lead into gold.

Right, right, exactly.

Like

while Matthew Hale was alive, he had at least two women executed for witchcraft.

Great.

And here he is in 2022, weighing upon our rights.

Incredible.

Alito is trying to make this case that fundamental rights are those that have long-standing roots in our legal tradition and abortion is just not one of them.

Which seems like a straightforward argument, but is making some very big assumptions.

First,

like we're saying, I think you can reject off the bat the idea that for something to be a fundamental right, it must have been respected for hundreds of years prior, right?

That's nonsense that places weight in the beliefs of morons who believed in witchcraft, who invested their life savings with the local alchemist.

Yes.

Alito is citing Edward Koch, born in 1552.

1552.

Dude thought the sun revolved around the earth.

No joke.

Who gives a shit what he thinks about abortion?

Exactly.

Exactly.

Alito says, quote, in interpreting what is meant by the 14th Amendment's reference to liberty, we must, we must guard against the natural human tendency to confuse what the amendment protects with our own ardent views about the liberty that Americans should enjoy.

No, motherfucker, we don't have to do that.

That's a policy decision, right?

That's completely arbitrary.

This shit is made up.

I think reading this opinion really highlights they are making this up as they go because they want the result.

You know, something that's interesting that literally is a thought that just occurred to me right now.

So it's a little half-baked, but they get to do this because

their idea of like where your conception of liberty gets to be broad and gets to be very sort of ambiguous and you get to really play around in the gray areas is in the exercise of religion, right?

Right.

And that's why the First Amendment and speech for that matter, that's why the First Amendment has become so big.

It's because if you don't want to wear a mask, instead of saying, well, that's an infringement on my personal liberty, you say, my conscious, my religious conscious is being, you know, imposed upon.

And the Supreme Court is like, wow, well, that's a big deal.

Your religious conscious.

What a harrowing journey.

We need to deploy military subs that have

people not wearing masks in them.

And I'm overruling the generals on this matter, right?

Like that's that's where they do this.

They just do this, the same thing they're accusing liberals of elsewhere.

They use the First Amendment instead of the 14th Amendment.

Yes.

Right.

I think it's important to note, like, even if you grant them this whole concept that we should be like predicting our understanding of our rights in history, the idea that the right to abortion is not rooted in tradition is only true if you view the right in like the narrowest sense.

If the question is whether the right to abortion in and of itself has deep roots in American law, then the answer is probably no, sure.

But if the question is whether the rights to privacy and bodily autonomy have deep roots in American law, then the answer is unequivocally yes, right?

You see it in various constitutional amendments.

You see it in the first, the second, the third, the fourth.

And then the question becomes,

does the right to abortion constitute a subset of those rights to privacy and bodily autonomy?

And of course it does.

Of course it does.

And to the extent American law did not historically recognize it as such, that's because lawmakers at the time had an insufficient and incomplete understanding of those rights.

It was their failure to properly understand the scope of the rights to privacy and autonomy that led them to outlawing abortion, just like it led them to outlawing interracial marriage, like it led them to allow forced sterilization, right?

It's only by keeping the question artificially narrow that conservatives can argue that a right to abortion reflects a departure from the legal tradition.

It's not a departure.

It's the realization.

of the promise of that legal tradition, right?

Yes.

You could use the same logic to say that the only fundamental rights that exist in this country are those that adhere to landowning white men, right?

Because

no one else's rights have really been around for that long.

No one else has a long-standing tradition going back centuries.

The reason that we apply fundamental rights to women, to minorities, to children, is that we understand that even though those rights did not historically exist, they are consistent.

with our conceptions of liberty.

They are necessary extensions of those conceptions of liberty.

The founding generation spoke of equality and liberty, but did not adequately practice either.

And that's the left constitutional project, right?

And people always ask us to try, like, how would you quickly articulate like the left view of the Constitution?

To me, that's it.

Not to recognize only those rights that have been historically granted, but to align the rhetoric and promise of the Constitution with its practice.

Yeah.

Yeah.

Yeah.

And I just want to make a quick point, Peter.

I think that's really well said, but I just want to make a quick point about this selective historical analysis.

You know, Alito is looking at what laws were saying about abortion through history, but says nothing about the incidence realistically of abortion throughout history, right?

Right.

And with this case, you are not outlawing abortion.

You will never get rid of abortion.

What you will do is get rid of safe and accessible abortions for people, right?

But that doesn't mean that abortion goes away.

And so if you're actually analyzing the historical incidence of this bodily autonomy being recognized, right?

That has been happening for millennia.

Yeah.

Yeah.

The other thing I'll say just in general about historical analysis that I think is somewhat relevant to this is that like, yeah, the federal government at the founding had like 20 people working for it.

It was like tiny, it like barely, it barely existed, right?

Like, I mean, that's an exaggeration, but still, the modern American state

is basically, you know, created after the Civil War and after the New Deal.

Right.

Right.

That is when our conception of what the federal government is as it exists today was formed, both in its relationship with the states, its role in protecting the liberty of everyday citizens against oppressive states, and its role in providing a safety net to people who are falling on hard times, right?

That's all the Civil War amendments.

That's all the New Deal and

the litigation and Supreme Court cases that came out of that.

And it's not a surprise that a movement that's in large part a reaction to those things, a bunch of neo-Confederates who fucking hate the New Deal always want to talk about the founding and shit before that, right?

They don't like those things.

They don't like that conception of the government.

They don't like that conception of rights and the relationship between the federal government and the states and its citizens.

And so they just want to, you want to talk about history.

They want to gloss right past everything from 1850 to

1970, right?

Like that's

they don't want anything to do with any of that, but that is a huge and important part of the creation of America.

Yeah.

Yeah.

Really good point.

So there's one important substantive argument Alito makes here.

He talks about the Equal Protection Clause, because there's been this sort of idea floating around that although Roe is predicated in substantive due process, what it should have been based on is the Equal Protection Clause, an argument that this is an equal protection violation that is violating women's rights to equal protection under the law, right?

And he addresses that argument by basically hand-waving it away, citing precedent from like 2017, arguing that the regulation of abortion is not a sex-based classification.

For that premise, he actually cites a 1974 Supreme Court case, which held that pregnancy discrimination is not sex discrimination.

In other words, according to that case, firing a woman because she's pregnant was not sexist.

That opinion was so reviled that Congress updated discrimination laws, which now specifically say that pregnancy discrimination is in fact a subset of sex discrimination.

But here is Alito favorably citing to it in 2022, pretending that there's nothing sexist about abortion laws.

Now, I think an important thing about this is that there's been a long-standing history of cowardly liberals arguing that Roe

is too weak, as argued, and that we should have used an equal protection argument instead, right?

This is something that many prominent liberals have argued over the last 50 years, that READ would be stronger if only we had used an equal protection argument.

Ruth Bader Ginsburg made this argument.

Yeah.

Yes.

Ruth Bader Ginsburg made that argument.

Many law professors of mine made that argument.

I've heard this argument dozens of times.

Sure.

Alito tosses.

the equal protection argument out in the span of a paragraph.

In like a 70-page opinion.

Yeah.

Right.

So no, it doesn't matter what fancy argument you can make that you think is so much stronger than the one that we made previously.

It doesn't fucking matter.

They are not going to be swayed by nominally better arguments.

Don't be a fucking sucker.

We talked about this in our Roe v.

Wade episode when we did a two-part episode on the rise and fall of Roe v.

Wade about how, yes, you know, there's a credible and colorable equal protection argument here, but the substantive due process argument is just as colorable.

And to abandon it, to like throw it to the wolves does you absolutely no good.

Right.

Yeah.

So I'll just say, I mentioned Ruth Bader Ginsburg supported this, and this might not be popular point with our listeners, but given the moment we're living in and how we got here, I think that should be discrediting, right?

Like, is there anyone who more famously and obviously misunderstands power and politics and the way this works than Ruth Bader Ginsburg.

Like,

we are in this moment because of her profound, profound misunderstanding of power and politics.

So, yeah, if she's like, Yeah, I would have been stronger with equal protection.

That's a good reason to be like, maybe not.

Maybe she doesn't know what the fuck she's talking about.

Yeah, I mean, you know, we've talked about RBG before.

And of course, every time there's a new Supreme Court decision, the debate rages on Twitter and elsewhere about the extent to which she is like to blame.

And the only thing I'll say about it is there is one person who existed on this planet who could have single-handedly changed this outcome.

Yes.

It was Ruth Bader Ginsburg.

And she fucked up.

She fucked up.

Everyone else is a little bit disconnected, right?

You could say, well, Mitch McConnell's really responsible.

Sure.

Yeah.

I get it.

Mitch McConnell's the fucking enemy.

You know?

Yeah.

The Rams are responsible for the Bengals losing the Super Bowl, but you don't get to just throw your hands up and be like, well, it's really the Rams' fault.

If you're in the fucking Bengals locker room after the race, that's not how that shit works.

Ruth Bader Ginsburg was on our team.

That's why we're fucking mad at her, right?

I mean, yes, I believe that Mitch McConnell is a worse person than Ruth Bader Ginsburg.

That's not the fucking debate.

Yeah.

Right.

Look, I think it might be a good time to to go over just a handful of the many unreal, offensive things that exist in this opinion.

Oh, God.

Perhaps the most notable of which

is that Alito pumps what is basically a conspiracy theory, saying that some people who support abortion support it because they know that black people

disproportionately get abortions and they want to suppress the black population.

Right.

Eugenics.

This is eugenics.

Right.

Olito doesn't believe that, but he, you know, it's, it's, he's just asking questions.

People are saying many people are saying, and this, this shows the Fox News brain rot of somebody, right?

This, there is no reason why this

racist and eugenicist conspiracy theory should be included in the Supreme Court reporter in 2022.

And yet, right?

And yet, this fucking idiot idiot thinks that that is part of the argument, that this supports his argument, a completely unfounded and racist idea.

I mean, it's just fucking gross.

Yeah, it's disgusting.

He goes on to talk about how things have changed for women.

So, you don't need abortion anymore to be equal for gender equality.

You know, he says, adoption, the adoption system is really way better now.

You can totally place a baby in an adoptive family.

He says you know the lives of unmarried pregnant women are much better because we're there's not so much stigma blah blah blah but

in the same opinion that he's favorably citing a case that said it's okay to fire pregnant women right yeah he's talking about how much better it is for pregnant women in modern america but not for long buddy if sam alino has anything to say about it that's exactly right i want to talk about that passage a little bit because he's supposedly not endorsing those arguments.

He was just sort of like laying out both sides' arguments.

But when he gives the pro-choice arguments, he whips through like a couple sentences, no citations.

When he lists the pro-life arguments, it's an entire lengthy, like laundry list of arguments meticulously cited.

Yes.

See Appendix B.

Right.

And I want to touch on a couple of them.

One, he says that,

quote, leave for pregnancy and childbirth are now required by law in many states, making the argument, of course, that an unwanted pregnancy is just not as burdensome as it was 50 years ago, which

might be true in a vacuum, but probably worth noting that there are eight states that provide for paid maternity leave, and absolutely none of them are any of the states that will outlaw abortion when Roe v.

Wade is struck down.

So it means fucking nothing to anyone.

Right.

He mentions safe haven laws, right?

Which allow women to anonymously drop off their babies.

And then he says, like Rhea, you mentioned, he says, quote, a woman who puts her newborn up for adoption today has little reason to fear that her baby will not find a suitable home.

And for that proposition, he cites like mostly outdated CDC data that says absolutely nothing of the sort.

And I read a whole fucking page of CDC data

just for this point.

I was like, is it in here somewhere?

No.

But like, even if there was data to support that proposition, that data would then be rendered null by the criminalization of abortion all across the fucking country.

Yes.

That's right.

In recent years, there have been between six and 700,000 abortions

every year.

That's historically low, by the way.

135,000 children are adopted.

each year.

So let's do some fucking math.

That means that if even 10% of those abortions are carried to term and result in adoptions, that would be a 50% increase in annual adoptions in this country.

To the extent that the adoption system was working smoothly before, which it probably isn't, it was doing so because abortion is widely available, right?

This is that Shelby County throwing away the umbrella in the rainstorm because you're not getting wet thing.

Right.

Just completely disingenuous fucking bullshit.

I don't know, Peter.

You sound like a eugenicist to me.

That sounds like a eugenics argument.

Yeah.

And, you know, the broader point Alito is making here with the adoption bullshit and the unmarried mothers have good lives now or whatever it is.

You know, this, he's trying to make a point about gender equality, that you do not need abortion for gender equality.

But I got to say, gender equality is not real, cannot be realized without bodily autonomy, right?

Bodily autonomy is fundamental to gender equality.

Alito brushes it off in this draft.

You know, he kind of says like bodily autonomy is some pie in the sky ideal on the one hand.

And then on the other hand, it's a really scary, slippery slope because bodily autonomy could include like prostitution and drug use, maybe.

Yeah.

Yes.

He fucking says, I mean, this is like his actual slippery slope argument, right?

Where he's like, what's next?

A right to prostitution and drug use?

I was like, fucking absolutely, dude.

If you want to talk about history and tradition, they call it the fucking oldest profession for a reason.

That's right.

That's right.

And point blank, I don't give a fuck what he thinks.

He's wrong.

No, he's wrong.

He's absolutely wrong.

Bodily autonomy, especially as it pertains to the decision to have a baby, to carry a pregnancy to term, it is inherent to and inextricable from gender equality.

Women and trans people are not not equal in society when they can't make the choice to not be pregnant.

That's it.

Yeah.

And also, like, again, throwing away the umbrella in a rainstorm, you're making these arguments that are predicated on the idea that things have improved for women over the last 50 years.

Like, yeah, this might have had something to do with it, you fucking moron.

Right.

Yeah.

Can we take a minute?

Because I need to get some ice for my drink.

Yeah, sure.

Yeah.

All right.

I might as well get some more tequila, too.

All right.

So before we move on, might be worth talking about his treatment of starry decisis.

Yeah.

The respect for precedent, you know.

Now, we're not big fans of starry decisis, so not

really trying to argue with him on the merits here.

Would you say starry decisis is for suckers?

Wow.

Yeah, we should put that on shirts.

So yeah,

I don't disagree that Starry Decisis is just not real.

It's not a real thing.

Sure.

Yeah.

But what Alito does

is sort of put this decision overturning Roe

in a category with like the great decisions in Supreme Court history where he's like,

Brown v.

Board of Education overturned.

a 50-year-old precedent.

We stand on the shoulder of giants here.

Yeah.

Right.

I mean, just like the most condescending fucking thing.

And it's like, dude, just because you've thought of a good thing that you can compare

your stupid fucking decision to, it doesn't mean anything.

Right.

Not to mention, this is removing liberty from people.

Yeah.

Right.

I mean, like, like, this is just the fucking drill tweet.

Like,

there is a difference between good things and bad things, dude.

Yeah.

That's right.

Sorry.

Yeah.

Sorry.

Yeah.

Well, there's, there's that white nationalist organization, V-Dare, right, which recently came out there, like leader used to report directly to

Murdoch at Fox News or whatever.

And they, they immediately put out a statement or whatever after this got leaked saying, Brown v.

Board is next.

Like, it's like incredible.

Like, while he's talking about like comparing himself favorably to the author of Brown v.

Board of Education, his political allies and the people whose will he's enacting here are like, yeah, let's fucking get Brown v.

Board of Education.

Like, that's next.

That's right.

I mean, Brown v.

Board also comes out of a broad reading of the 14th Amendment.

So like, it is on the chopping block, and it might not be on the chopping block in the next five years or something, but there is danger there.

Absolutely.

After President DeSantis and the Republicans expand the court and Alito becomes the swing vote,

he'll be on the outside looking in for the decision overturning Brown v.

Board of Education.

Right.

Yeah.

So it's worth talking about other rights in jeopardy here.

As Peter mentioned, it's hard to

understand

this decision as not being a stepping stone to other things like overturning Brown v.

Board of Education, racial desegregation,

you know, right to contraception, et cetera.

But Alito sort of goes out of his way to say, well, those things are not in bounds, right?

Those things are not implicated by this decision.

Whether or not that's being honest is a separate question, but it does feel like he's not as,

you know, concerned with reassuring us that gay rights are not implicated by this.

They feel much less, if not entirely absent from his list of things that are safe, right?

He talks about precedents prior to Roe, things like that, but everything in the 90s and aughts and teens that was protecting gay rights, Lawrence v.

Texas, which struck down an anti-sodomy law on substantive due process grounds,

and famously Obergefell v.

Hodges, which constitutionalized gay marriage on

really sort of equal protection grounds, although it's very sketchy.

I think those are like sort of easily read as being in the crosshairs.

Right.

I mean, I think it's safe to say someone will try to bring a case challenging Obergefell next term.

Yeah, absolutely.

Whether the court grants CERT,

it's harder to say, but someone is going to try to bring that case.

And there's a very good chance that it's taken.

They might wait until after 2024.

Yeah.

But yes,

in the next few years.

Yeah, because what he's saying is these, really, these post-Planned Parenthood v.

Casey decisions, you know.

And that was 1992 for the record.

Right.

Obergefell and Lawrence were part of this expansive rights recognition under bodily autonomy, the choice to exist in the way that an individual chooses, right?

The choice to choose a partner, those kinds of things.

What Alito is not explicitly saying, not quite,

but what he is saying and inferring here is that that is, that's bullshit to him.

He doesn't think that that justification really exists.

Yeah.

Yeah.

So you have like Obergefell and Lawrence v.

Texas almost explicitly on the chopping block.

But then you have those earlier cases, right?

And there's that part of the decision that, you know, Michael, you're mentioning that where he's trying to assuage people that some of those landmark substantive due process cases, like Griswold v.

Connecticut, which held that there's a right to contraceptive access, and Loving v.

Virginia, which found a right to interracial marriage.

He's saying, you know, those are safe.

And the reason he gives, he says, in essence, those rights aren't on the chopping block because they don't, quote, destroy a potential life, unquote, and therefore do not pose, quote, the critical moral question posed by abortion.

So there's a real lifting of the veil here because the entire opinion has been about how there's no historical basis for abortion rights.

And then suddenly, when confronted with the fact that his logic would overturn various other seminal cases, he pivots to being like, well, this is different because it's killing babies.

I thought that it was about like the history of the law or some shit.

I guess I misunderstood.

You know, the entire basis of Alito's reasoning is that the underpinnings of this right don't exist.

The legal underpinnings of this right don't exist.

That exact same rationale.

could be applied to the right to interracial marriage or contraceptive access.

Absolutely.

Clearly, there is no deeply rooted tradition of interracial marriage in our country, right?

So what Alito is doing here is just pretending that his logic doesn't lead to the place where we all know it leads.

And there's like a great irony here because what the conservatives cannot admit, even here where they are attacking Roe head-on and putting their flag in the ground as like the true inheritors of the Constitution, what they cannot admit is that their vision of the Constitution would not allow for any of the victories of the civil rights movement to stand, right?

They saw the legal and political gains made by women and minorities in the latter half of the last century, and they built a movement, an ideology around pressing the reset button.

And

that's the only conclusion you can draw from this opinion, but Alito at the bottom still cannot quite admit it.

Right.

Yeah, you know, there's like a paragraph at the end where he's like, look, we do, he says, we don't pretend to know how our political system or society will respond.

And even if we could foresee what will happen, we have no authority to let that knowledge influence our decision.

We can only do our job or whatever, which is another way of saying, like, we don't know if there's going to be a lot of popular backlash, but even if so, we have to be brave in the face of that backlash.

Right.

But when it comes to something, when it comes to interracial marriage and

contraception, he's like well we don't have to be that brave in the face of that right right be that you know like this is this is definitely like uh they've found what they think is the line that they can yeah that they can cross and what the line is that they cannot at least for the time being and that's what they're that's where they are right that's yeah absolutely this also ties into like a really annoying thing that alito does where when he's talking about the mississippi law that's at issue in this case the 15-week abortion ban, he starts quoting heavily from the law.

And the law itself, the statute, calls fetuses, quote, unborn human beings.

And so Alito starts to repeat that.

And like, motherfucker, you don't think that's political?

Like, that's not what doctors call fetuses.

That's not what medical literature says.

That's not what our scientific facts state.

I think you mean abortionists,

which is the term that he uses all throughout the opinion for abortion providers.

Zygotes have rights, Rhianna.

Yes, right.

And so, you know, this selective use of obviously sort of politically charged language is just, you know, just completely belies, right?

Again, this results-oriented thinking and the Fox News brain rot.

Yeah.

Yeah.

So I think we should probably talk a bit about what will happen when this opinion drops.

Assuming that things stay basically the same, the most immediate effect is that trigger laws will

be triggered.

There are 13 states that have what are called trigger laws, which are laws that say when Roe v.

Wade is overturned, an abortion ban will be in place in this state.

There are also states that have old anti-abortion laws from before Roe

still on the books, which will then be in effect once Roe is

overturned.

So we're looking at huge swaths of the country who will suddenly be denied abortion access.

That's the immediate impact here.

That's right.

You are also looking at, I imagine, a bit of a battle between red and blue states where red states crack down in

previously

unheard of and unthought of ways on abortion rights while blue states try to accommodate and fund, et cetera.

One of these sort of new developments is that it looks like red states are going to try to limit who can even leave their state to get an abortion.

I think Missouri is already trying that, right?

That's right.

Which will implicate the right to interstate travel, a right that has been upheld by the Supreme Court, but, you know, not hard to see it falling in this context.

So there are certainly battles to come about the ability of people who are in states that will soon outlaw abortion to leave those states and go get abortions elsewhere.

Yeah, you know, there's other really big implications by those kinds of laws, too.

I mean, people travel between states and states have different criminal laws all the time, right?

I'm thinking about people who go to Colorado or California and smoke weed, right?

Or, you know, buy legalized marijuana.

And so there's a lot that's implicated by these kinds of laws that are very complicated.

Yeah, I mean, and could lead to a less holistic country, right?

A country that looks more like 50 very different states with very different regimes rather than a single country with states that have, you know, laws that largely speaking are not impacting travelers between those states.

Yeah.

Yeah.

You know, this one, I might end up looking stupid for saying this, and you never, you're never going to make money betting on the conservatives blinking in instances like this.

But

I think the conservatives are far more likely to hold that, like, fetuses are human beings and they have rights, and therefore, abortion is expressly prohibited by the Constitution's protection of life, liberty, and property, right?

In particular, its protection of life in the 14th Amendment.

I think they'll say, like, the right to travel is fundamental and blah, blah, blah, blah, blah.

And like, the right to travel is something that's like got a very firm rooted tradition in our jurisprudence.

And I think they're, I don't think they'll do that, but I do think they would go further, right?

I think that'd say, blue states, you can't do this.

Like those are human beings and they have rights to yeah.

I mean, I think that's the next, because they don't have Congress and the presidency right now.

So obviously, once they do, once they have Congress and the presidency, the real risk is that they pass a national abortion ban.

The risk.

until then is that they bring a legal challenge claiming that there is sort of fetal personhood, right?

Fetuses are entitled to certain rights, and therefore abortion must be banned nationwide.

Yeah, I don't want to start throwing probabilities at it.

Certainly, that feels cleaner to me from the conservatives' perspective than fucking with interstate travel,

which seems a little bit convoluted and roundabout.

It's messy.

Yeah, there would be a lot of downstream effects there that they don't really care for or want to deal with, whereas a simple challenge to abortion gets right at the heart of it.

So I certainly wouldn't be surprised to see something like that pop up.

It's been reported that Republicans are already planning to propose legislation that would ban abortion nationwide.

We've always said speculating about this shit is sort of a waste of time.

I still think that, but there will likely be challenges to abortion at the nationwide level.

There will likely be legislation proposed to ban it nationwide.

Exactly when and how those manifest, I don't know, but they're not going to rest on their laurels and they're not going to retreat.

That's just not how these things work.

Yeah, reactionaries are never satisfied, right?

There's always another group

to push down.

There's always another group to oppress or to...

I mean, even here, when we know that Roe is about to be overturned, they're still framing themselves as the fucking victims because the outcome was leaked.

Yes.

There is nothing that they won't hang their victimhood on.

Yeah.

Yeah.

So I think it might be worth, before we sign off,

talking about the Democrats,

the political party of the Democrats, if you guys are familiar, a minor political party in America.

Ostensibly the party protective of the right to reproductive freedom.

That's right.

Not to mention the party that is in control of the legislature and the presidency right now.

Two Pinocchios.

Well, it's a bicameral legislature.

Do they control both houses of the legislature?

Oh, they do.

That's interesting.

That's my mistake.

Yep.

Yeah, but what is control?

And who are the Democrats?

These are the philosophical questions that you must ask yourself when asking who is in power in Washington, D.C.

The Democrats are a pathetic group of absolute fucking losers.

That they have allowed this to happen without a fucking whisper is unreal.

And I'm not saying that there are like clean and clear solutions, that if you just popped me into the Oval Office, that I could solve these problems.

I could not.

This is a problem

going back decades.

And that is why the most prominent voices from the establishment Democrats have all been saying, well, this is all the more reason to get out there and vote.

And it's like, I don't want to deny obvious realities, right?

Like mansion and cinema standing in the way of overcoming a filibuster, right?

That is simply the world that we live in.

I get it.

But when you have people shouting, vote at you every two years in perpetuity and things still get worse and the other side is doing better.

And when we try to vote, it gets fucking harder because the court is intentionally making it harder to vote.

At some point, people are going to throw their fucking hands up and the fascists are going to run all fucking over you.

And it seems to me like a lot of the response from the Democrats is their way of avoiding having to say, hey,

we have been outmaneuvered and outsmarted for decades on end, and we have found ourselves without a meaningful grip on power, despite having the presidency and two houses of Congress.

And we don't know what to do.

And that is, I think, the reality of the situation.

There is no appetite because they have been building this ineffectual big tent since the 80s.

There is no appetite for any meaningful reform of the court or anything fucking else.

And we are stuck with these natural-born losers, right?

Joe Biden put out a statement.

Let me pull up the Biden statement.

Joe Biden put out a statement that essentially just

says, A, I'm a big pro-choice guy.

And B, quote, if the court does overturn Roe, it will fall on our nation's elected officials at all levels of government to protect a woman's right to choose.

And it will fall on voters.

to elect pro-choice officials this November.

At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.

So essentially saying we do not have a play.

Right.

The only thing being discussed right now is the codification of Roe, passing a law that says there is a federal right to an abortion.

I want to go on record saying two things.

One, I support that law.

Two, it will be struck down.

That's right.

By the Supreme Court.

On the basis that Congress does not have the authority to regulate on abortion at the federal level.

Congress, of course, can only exercise certain enumerated powers.

In the past, their attempts to regulate abortion from the anti-abortion side have been under the Commerce Clause, and the court has not addressed whether or not that is an adequate exercise or a proper exercise of Commerce Clause power.

They will say no, it is not if the Democratic Congress tries to do it.

That said,

to be seen fighting for people who feel like no one is fighting for them is worth something, both politically and I think, I don't want to get too corny, but like emotional, spiritual level in a country where I think people on the from the center left on

feel completely abandoned by the government and by their elected officials.

Right.

Yeah, you know, for as long as I've been an adult, for decades, a part of the Democratic pitch in national elections and especially presidential elections

has been,

hey, but what about the Supreme Court, right?

You have to worry about the Supreme Court.

The president appoints justices to the Supreme Court.

We might have some openings, blah, blah, blah.

That's been the case for 20 plus years.

But what has been their agenda with the courts, right?

Like, that hasn't been successful.

nearly to the extent that focusing on the courts has been successful to the right, because the right wing has a fucking positive agenda that they act on aggressively when they're in power, right?

They know what they want to do with the courts.

They identify people who will help them do that with the courts, and they fucking put those people on the courts en masse.

They do everything they can to make sure those are the only people on the courts, right?

That's what they do.

What do the Democrats do?

What's their fucking agenda?

What's their constitution in exile, right?

What is their vision of the country that their ideal Supreme Court would you know exemplify would help uh make real right that that doesn't exist when we when i asked sheldon whitehouse about this who's one of the better senators he was like that's what makes us the good guys that we don't have something like that we don't have an agenda like

off like you're you're telling people to that the courts are important and your agenda with the courts is nothing tbd

is like this page left intentionally blank like what the you want to know something you could do right now about this?

There's something called a blue slip in the Senate.

A blue slip is in the process of nominating and confirming a judge, the home state senator gets to express concerns and essentially have a veto on any judge that's appointed in their state.

Now, blue slips have...

you know, existed for a while.

During the Trump era, they basically stopped respecting those for circuit courts of appeals.

Now, Democrats are not respecting those for circuit courts of appeals either, but they are doing it for district courts.

And there are over 70 vacancies in the federal district courts right now.

And most of them are in red states.

And you know what?

Just say, fuck it.

Fuck the blue slips.

Fuck you.

We're putting 70 pro-choice judges on the bench in red states right now.

You could do that today.

Like, don't tell me you can't find fucking 70 nominees.

Like, there are thousands of Democratic donors and law professors and whatever who can do that job.

Like, fucking do it.

Just do it.

You can introduce a court packing or other court reform bill.

You have a 250-page report detailing all sorts of different court reforms that you put together.

Like,

fucking act on it.

Do something.

And you know what?

If you lose the vote on that, you say, well, this is why you vote for us in November.

Look, we were three votes shy.

We get those three votes.

This is what we're passing.

And this is why we're passing it because we have a vision for the courts.

They don't do that.

They're not interested in that.

And maybe that's not a winning play, but you can't then turn around and bemoan that.

you know, voters aren't turning out for you.

Oh, they didn't show up despite the courts.

They've been blaming it on the fucking voters forever, man.

I fucking worked for Obama.

I've given so much money to the Democrats, man.

Yeah.

I've given a lot of money to Democrats in my life.

I've volunteered.

I've knocked on doors.

Me too, although 100% to Bernie.

Since Joe Biden tweeted out his Rose statement earlier today, he's tweeted five times about Ukraine.

Fuck off, dude.

We're doing jack shit and people see it and feel it.

And now we're in a situation where the cornerstone.

of the Democratic platform is being ripped out from under us and they have nothing to offer us.

Nothing to offer us.

The Democratic establishment is currently supporting its most ardent anti-choice member.

What's his name?

Henry Culler?

Queller?

Henry Queyar.

Yeah.

That asshole in Texas who's like basically a Republican when it comes to abortion rights against a good candidate, right?

Cisneros, who's like solid on these issues.

Classmate and friend.

You know Cisneros?

Oh, yeah.

Awesome.

Recuse from this conversation.

Well, I just gave her 50 bucks today.

You do give too much money to Democrats, man.

I do.

I do.

I'm a sucker.

But fuck that guy and fuck the party establishment that's supporting him.

Like, maybe,

maybe have a moment of self-reflection.

To turn that into something that feels a little optimistic,

I think that we are about to turn

a

political corner.

with this.

You cannot, if you are ostensibly on the left, now deny that the court's project is deeply political, that they are coming for the rights that you thought were, at least at one point, you thought were untouchable, that you've been told were untouchable.

And

this is what the conservatives did 50 years ago, 40 years ago, really.

They

built an understanding of the law in response to

the victories of liberals under the Warren Court and just after.

And

they funded it.

They supported it academically.

Politicians embraced it.

And they turned it into something that now controls the Supreme Court.

We can do the same thing, and we can do it faster.

There's a reason that our stupid fucking podcast is wildly popular with law students because we're the only ones or were the only ones when we we first came up

articulating a very clean and coherent thesis of what exactly the court was doing.

I think that people broadly are starting to understand that and that that will open up the possibilities down the road for what can be done about the court, for who will become a judge over the span of the next five or ten years, what types of law students will graduate from law school and move into the profession.

right?

There is

hope, I think, for a big vibe shift in the law.

And I think there is just an enormous vacuum to be filled by people who have a

real vision of what a like leftist legal framework looks like, what a leftist analysis of the Constitution looks like.

That did not exist five years ago.

And I feel optimistic that in that sense, things are getting better.

Good luck, Rachel.

Have fun.

Thank God, Rachel.

Oh, how do we outro?

Next week.

Next week, we are dropping our live show much delay due to current events.

If you are a new listener, check out our back catalog, mostly just one awful Supreme Court case after another.

We also did a two-part series we mentioned earlier called The Rise and Fall of Roe v.

Wade.

Our effort at a deep dive into abortion rights and American law.

Follow us on Twitter at 54Pod.

Subscribe to our Patreon, patreon.com slash 54pod.

All spelled out.

Take care of yourself and donate to an abortion fund.

Not the Democrats.

You know, just, Michael, please stop.

This is an intervention.

So Snara seems great.

Ugh, Jesus Christ.

We'll see you next week.

Five to four is presented by Prologue Projects.

This episode was produced by Rachel Ward with editorial support from Leon Napok and Andrew Parsons.

Our artwork is by Teddy Blanks at ChipsNY, and our theme song is by Spatial Relations.

I can't get over the prostitution and drug use, man.

Those are literally like the two constants through American civilization.

Prostitution and drug use.

There's like nothing more fundamental to human civilization than those two things.

Like, the fucking Egyptians were drinking beer.

Like, come on.

Actually,

obnoxious nerds like me have been trying to outlaw prostitution for many years.

For 4,000 years now.

Thanks, Duke.

Yeah, Yeah, you're doing great.