Laws and Rights After Roe

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I'm Adrienne LaFrance, executive editor of The Atlantic.

You're listening to Radio Atlantic.

The decision itself is huge, with few, if any, historic corollaries.

And there are urgent questions about what happens next.

How will abortion bans be enforced?

And what other constitutionally protected rights could the court revoke?

Today, we're catching up with two of the Atlantic's contributing writers, David French and Mary Ziegler.

Mary is a legal historian, and David is a constitutional lawyer.

So, I wanted to ask them what they make of the magnitude of this decision and what comes next.

This conversation took place as part of our live event series, The Big Story.

So let's jump right in.

I want to talk about something, Mary, that you wrote in a recent article for us.

And I'll quote you for a moment.

What you wrote was, if this decision signals anything bigger than its direct consequences, it is this.

No one should get used to their rights.

Talk about that a little bit.

And I know, I mean, particularly in Justice Thomas's concurrence, there's a hint at where this could go.

But I'm curious to hear what you were thinking about when you wrote that.

Well, I think there were sort of two sets of things I was thinking about.

One set of things involved methodology, right?

So the court lays out a method for defining our constitutional rights based on what the court describes as history and tradition.

And that methodology, as Justice Thomas, I think, elucidates pretty nicely, could mean that a lot of rights we thought we had, we don't really have.

Another set of things that was occurring to me were kind of more institutional concerns.

This court has been, I think, more

interested in undoing precedents it thinks were egregiously wrong, to use the court's words, and less worried about the kind of institutional commitments that come with adhering to old decisions or past precedent than other courts that I'm familiar with, right?

I mean, maybe you can say you go back to the 60s era liberal Warren Court, maybe that wasn't true.

But I think for all of those reasons, this is a court that seems to be committed to its interpretive approach.

to the Constitution, not really worried about institutionalist kinds of concerns about perceived judicial legitimacy or precedent,

and committed to an approach to implied constitutional rights that if you were being logically consistent, would lead you to call into question a variety of constitutional rights.

So if this is how the court is doing business, both from an interpretive standpoint and from an institutional standpoint, we just don't know what's going to happen next.

Like I'm not here to tell you I know they're going to take away this right or that right or any rights, but I think it creates a climate of pretty extreme uncertainty.

If you had asked me, and I imagine probably if you'd asked David two years ago, do you think the Supreme Court will overturn Roe v.

Wade in two years in a decision like this?

I mean, I can tell you a lot of constitutional commentators would have said no way.

We're living in a time where the Overton window is rapidly changing.

And there are signs in the opinion itself that that's true.

So what I was thinking when I wrote that was just that anyone who can guarantee you that they know what will happen next when it comes to this court, I think is mistaken.

I don't think we can know.

So David, two years ago, if someone had asked you, would this happen?

What do you think you would have said?

I would have said no.

And I would have been on pretty good grounds to say no, because Justice Ginsburg was still alive.

And as we saw from the Justice Roberts' concurrence, he didn't join in fully overturning Roe versus Wade.

So, at most, there were four justices two years ago.

And so, it was the addition of Amy Coney Barrett that completely changed the dynamic.

The thing that surprised me, and this is something that I did not see happening, the court's ruling, in one sense, is 6-3.

It's 6-3

on the narrow ground of upholding the Mississippi law, but it's more of 5-4 on the larger ground of do you entirely overrule Roe v.

Wade?

And if I had been predicting this, which is why predictions are a perilous business, I would have said, I don't see a court overruling Roe v.

Wade 5-4.

You know, there was a joke that people used to say, Justice Roberts will be a reliable seventh vote to overturn Roe.

That in other words, if Roe is overturned, it's going to be by a supermajority.

Yeah, I thought the same.

How much of your surprise, David, comes from what the justices have said or had said in confirmation hearings?

I know people have made a lot of this, but then we'll go back to the other question of sort of logical consistency on the court.

Yeah, no surprise at all based on the confirmation.

The language in the confirmation hearings was very lawyerly.

A phrase like settled precedent kind of just means precedent is precedent until it's not.

So by very lawyerly, do you mean like evasive or ambiguous?

ambiguous just to press you on that a little bit

here's how i would put it as a lawyer listening i thought i see what you're doing got it um if i'm a member of the public i'm thinking something different so it is what i would call legally precise and publicly misleading is that a way uh of of describing what happened yeah but the thing that more

surprised me more is that prior to the overturning of Roe, only one justice of the nine had said clearly, hey, we need to overturn Roe.

And that was Justice Thomas in actual court opinions.

So in June medical, he dissented and said, hey, we need to call into question Roe Casey.

And so we had one justice on the record as a justice saying Roe Casey needed to go.

The other eight had not.

And the other eight, with the exception of Barrett, who wasn't on the court yet, had upheld or struck down cases that were not, that did not fundamentally challenge road so until dobbs it was a lot of speculation

i know mary you've smartly alluded to the fact that you're you're not going to speculate about the future too much um which is wise but i am curious for your thoughts on sort of the legal ripple effects here you know i've seen lots of people raise concerns about how enforcement will work what it'll look like questions about state surveillance of mail or period tracking apps, that sort of thing.

Where do you see as you kind of cast out days, weeks, months, months, where do you see the legal ripple effects to be most complicated or compelling or interesting to you?

Yeah, I mean, I think the real challenge is that obviously the world has changed since the last time abortion was a crime.

It was always hard to enforce abortion laws, right?

And that's one of the reasons we have pretty good historical evidence that the most consistent enforcement we had was when the pregnant person died too, because there was clear evidence that the abortion had occurred.

And that enforcement difficulty is compounded by the availability of medication abortion and by the kind of commitment of most people in the pro-life movement and most states who've spoken out on the matter, although I know there are people in the pro-life movement.

David has written about this, the abortion abolitionists who disagree on this point, but the commitment not to punish women and pregnant people.

So you have these kind of, I think.

Those things are in real tension with one another because of the availability of medication abortion.

People can get abortion medication on the internet from Europe, right?

And then if the commitment of the state is to punish either one, only the doctor, that's going to be virtually impossible in that kind of situation.

Or in some instances, states like the National Right to Life Committee, which is a pro-life group, has championed this really sweeping definition of accomplice liability that would cover some things that come pretty close to speech, kind of straddling the line between speech and conduct.

But I think one thing we've seen some states signal interest in, so South Dakota is having a special session to consider new regulations on abortion, and some lawmakers there have signaled their interest in trying to regulate out-of-state conduct, right?

So saying if someone from South Dakota goes to Minnesota to get an abortion, South Dakota is going to tell the doctor in Minnesota what information they need to tell that person before they get an abortion.

Some states have said, if we ban abortion for our citizens and our citizens travel to a state where abortion is legal, that's illegal too.

We're going to try to reach that doctor in that other state.

We've seen states saying, you know, we don't want advertising about abortion in our states, which of course implicates First Amendment concerns.

So I think the challenge of enforcement and how much states are are going to try to do things like surveillance, like regulating interstate conduct, like kind of coming up right to the line between speech and conduct.

I think that's going to potentially be something to watch.

And it's something that could polarize us further too, because of course, I think what the Supreme Court was describing or hoping for in the Dobbs decision was a world in which abortion going back to the states would de-escalate the abortion conflict.

And if this enforcement problem becomes acute enough, it could polarize the conflict even more because states would be trying to tell each other what to do rather than having some kind of top-down solution that's imposed on everyone, probably making people angry, but at least diffusing some of these interstate battles that we might see starting.

I'm glad you brought up polarization because this is actually something I wanted to ask you about, David.

I know you have written in the past that after this period of sort of shock and rage among progressive America, that you thought that this decision might actually help depolarize America.

And I'm wondering if you could explain that position.

I'm thinking in particular, I've been sort of looking at the map of where abortion will be most clearly banned or likely to be banned.

And it really, I mean, it really maps pretty cleanly onto established red-blue lines.

And so talk about this view of yours, if you would.

Yeah, so I do not dispute in the slightest bit that in the short to medium term, you're going to be talking about a lot of polarization, a lot of anger.

And as Mary outlined, a lot of confusion.

Because one thing that we have to realize is a lot of the pro-life laws that are on the books now were passed when no one thought they would go go into effect.

And so it was performative legislation

in a way.

And so now there's a lot of confusion as to what is the law actually going to be.

You've got states with competing statutes out there.

So there's going to be polarization compounded by confusion.

Now, if you take a longer view, is there a hope that you would have something along the lines of a democratic settlement to the issue that makes abortion so much less polarizing in other countries around the world?

So Europe, for example, has long had more restrictive abortion laws than the United States.

And the United States could not, under Roe and Casey, move to, the people couldn't vote to move to a European sort of settlement because Roe and Casey prohibited that.

And quickly, just so to bring people along, when you reference these more restrictive laws, it's things like an earlier cutoff for when abortion is permissible.

Right.

France, for example, has a 14-week cutoff, except in rare circumstances.

And other countries are similar to that.

But under Roe, because a 14-week, Roe and Casey, because a 14-week cutoff was pre-viability, there wasn't any prospect.

If you voted for that, if the people wanted that, they couldn't have that.

And so the longer term hope on the polarization point is that a democratic settlement will mean that abortion takes a position

that is similar to the lack of prominence it has, say, in Europe.

Now, the thing about that is the kinds of European style laws on the pro-life side, they're not particularly happy with that.

And then lots of folks on the pro-choice side are not particularly happy with that.

But it looks like there's a big group of Americans in the middle who are roughly there, but they don't drive the conversation about abortion in the way the different wings do.

So because other nations have settled this issue democratically without the kind of trauma and drama that we have endured over the last 50 years.

And that's why I have a longer term sense of hope.

But I completely acknowledge in the short term, you're going to have shock and anger and a heck of a lot of confusion.

And then I'd add to that, a lot of division you'll start to see on the pro-life movement.

Yeah, I agree with almost all of that.

I mean, and I think I even...

I sort of even share David's hope on the polarization point.

Although I would add that I don't think we would ever get there through partisan politics, because I think that this sort of gravitation to what the movements are doing is happening in our parties too.

I mean, I think it would probably, we've seen a little bit of this in Michigan and in Kansas, right, states that are very different, but going directly to voters.

I think we may see a more stable kind of European style solution coming from voters.

I don't know if we would get that from the Democratic Party or the Republican Party as they're currently constituted.

And David, when you referenced or sort of alluded to the idea that there could be a split among pro-lifers, what sort of fault lines do you see emerging?

So there's two fault lines.

Fault line number one is this sort of philosophical fault line between what you would call the mainstream pro-life movement, which has always said

there should be no punishment of women.

And also that there should be exceptions for life and physical health of the mother, for example, and the quote-unquote abolitionist movement.

which is now, and you're seeing it arise more in the more fundamentalist religious wings of the religious conservative world.

And they would say, no exceptions for life in some cases.

They would say, yes, prosecute women.

And the most prominent example of that was an abolitionist style resolution passed two annual meetings ago of the Southern Baptist Convention, which the Southern Baptist Convention is the largest Protestant denomination in the United States, extremely politically powerful.

There's some controversy as to whether people knew what they were voting for, really, but it was absolutely an abolitionist resolution.

Then the other division is between those who want to prioritize right now support for,

you know, if you have a state with a heartbeat bill going into being enforced, do you then now prioritize support for women and babies?

Or are you going to prioritize creative ways to ban abortion and outside the state lines or creative ways to try to prohibit the importation of abortion pills?

So what is the emphasis going to be right now in those pro-life states that already have pro-life laws on the books?

Is it going to be the support for women and mothers?

And a lot of mainstream pro-life groups are saying, we need to do that.

We need to do that.

Whereas a lot of grassroots politicians who are very much caught up in the performative, punitive culture of a lot of right-wing politics right now are going to really press on the punitive side.

And so

that's going to be a division.

It's been noteworthy to me to watch basically, you know, the entire medical establishment come out against this decision, really focusing on the woman or the pregnant person's well-being.

We've seen in other countries where abortion has been banned and medical interventions that would otherwise be made to save the life of the mother have not been taken.

And then someone dies,

certainly we know that some women will die as a result of not being able to get medical intervention in this case.

And so how do you expect that to play out legally?

Yeah, I mean, I think that there already are some state constitutional suits about that.

I think there's a kind of okay,

even for this Supreme Court claim that if states Republican candidates have suggested they would eliminate life of the pregnant person exceptions, other states I think are not doing that so much as narrowing them so much and then heightening penalties so much that a lot of doctors might not want to take the risk of interpreting an emergency exception in a way with which prosecutors disagree and then ending up in prison for, you know, 10 years, 99 years life in some instances.

And so I think, you know, obviously there should be, I think politically, pressure on states not to define emergency exceptions in this way, right?

To define emergency exceptions in ways that actually allow doctors to afford women and pregnant people life-saving care, including in circumstances where they're not even having abortions, but in cases where they're seeking abortions as well.

There's a decent constitutional argument that life of the pregnant person exceptions are correct, even under the Supreme Court's interpretation, interpretation, because at the time that states were banning abortion in the 19th century, they almost were universally including exceptions for life of the pregnant person.

So, states that are choosing not to do that or defining that so narrowly that people are going to die may be acting, I think are acting more harshly than states were even in the 19th century.

There's federal law on the treatment of, it was generally about sort of doctors trying to offload patients, but federal law that could be kind of leveraged to say that there's emergency medical exception in federal law, broader than the ones in some state laws.

So I think the real challenge is not necessarily, I think that legislators are intending for people to die if they have incomplete miscarriages.

I don't think that's necessarily true, but there's a dynamic between this sort of ever ratcheting up of penalties, right, of increasing penalties way beyond anything we saw in the 19th century criminal abortion laws, and the narrowing of emergency exceptions.

exceptions, and then asking doctors to say, okay, here's a patient who's presenting with what they say is a life-threatening circumstance.

Are you willing to risk your career and your liberty on your interpretation of whether this is an emergency or not?

And many doctors are just not willing to do that.

So I think that how punitive the laws have become is really what's putting people at risk.

It's not just the act of banning abortion.

It's not even just the act of criminalizing abortion, although I think that's a big piece of it.

It's the degree to which states want to punish people that's making doctors second guess whether these are real emergencies or emergencies they could defend in a court of law before a prosecutor.

We have a lot of questions, so I'm going to dive into them.

Keith asks: if Republicans are able to enact a nationwide abortion ban, what are the consequences for states that simply choose to defy that hypothetical?

So, again, we're getting into speculative territory, but I, you know, we really want to try to imagine where this leads us.

So, David, I'm curious for your take on that.

What would happen?

Well, so there's and how likely is that, I should say?

Is that something we should anticipate?

Well,

I used to say extremely destabilizing events are not necessarily likely.

I'm less apt to say that extremely destabilizing events are less likely.

I could actually easily imagine a circumstance like that, but only if the filibuster is removed or there's one party gets such a landslide at the Senate that they can cross the 60-vote threshold.

So I think it's unlikely.

But what you would have is you had a federal abortion ban, you would have federal law enforcement that would enforce it.

And so a state saying they're not going to comply doesn't do one thing to inhibit federal law enforcement from enforcing federal law.

Well, I mean, you could refuse to cooperate with federal law enforcement, for example, but federal law enforcement would still have jurisdiction, even if a state tried some version of nullification.

I don't think that scenario is likely, but I am at the point, you know, before I also didn't think January 6th, something like January 6th would ever happen.

So I have, I approached the more

apocalyptic types, polarizing scenarios with a lot more humility and trepidation than I used to.

And David, for you, as someone who has described yourself as pro-life, do you have any

reservations about the way this came to pass or you is your position more that you know hopefully we get to that more democratic, more settled place as a country?

I'm sort of curious, because like you said, it came as a surprise to you.

I'm just sort of curious how you're processing it.

So I have, I believe, in my view, the court's decision was correct.

And it's happening at a bad time in our country.

And when I say happening in a bad time, I don't just mean a bad time in the sense that we're polarized.

We've been polarized a lot.

It's happening at a bad time on the right, which is supposed to be, especially in

red legislatures, they're going to be the ones immediately reacting in ways.

Because if you're in a blue state,

your abortion rights have not changed.

If you're in a blue state, you still have access to abortion.

If you're in a red state, that's where abortion rights are changing.

And in a red state, red states right now, sadly, are captured by a spirit, as I said earlier, of really performative, punitive.

legislating.

And we have seen this in other circumstances where red states, which used to be strongly,

at least proclaimed they were strongly supportive of, say, the First Amendment and academic freedom, are now clamping down on speech and clamping down even on academic freedom and even clamping down on corporate speech and private speech out of the academy because of CRT or LGBT kinds of panics that are happening.

So this is a very difficult environment to pass thoughtful, compassionate legislation.

And that gives me a great sense of disquiet because of the cultural atmosphere in which it lands.

Another question from someone who's with us today, Miriam asks, is there a religious liberty issue here?

Prohibiting abortion seems to me to be based on the idea that life begins at conception, which is a religious dogma, she says.

And she gives the example of Judaism, which The Atlantic has covered this as well, that some interpretations would say that this goes against a core belief in Judaism.

Mary, what do you think on this one?

Should we expect to see actual legal challenges related to this question of religious liberty?

How are you thinking about this?

I mean, we're already seeing them, right?

So there's a synagogue in Tallahassee, Florida, that's bringing a religious liberty suit against that state's recent 15-week abortion ban.

And we've seen these laws and these challenges in the past.

They've often faced kind of procedural hurdles because the court will say, you know, in other words, the court would often want someone who is about to imminently be having an abortion or performing an abortion or something who's who's suffering that kind of injury that the court is looking for and what it when it's looking for standing, right?

It wants some kind of immediate kind of skin in the game that sometimes has been missing when religious liberty claims are raised.

I think the reason we're going to see more of this is because even as the Supreme Court has been changing, you know, the Second Amendment, its interpretation of the Second Amendment and the right to abortion, it's been changing pretty dramatically its interpretation of the religion clauses.

So expanding pretty considerably its ideas of religious liberty, contracting pretty considerably its its ideas about the separation of church and state.

And so I think this is to some degree people saying, well, if religious liberties are more capacious than we used to think, doesn't that apply to people whose religious values would point them to thinking that abortion was not only permitted under certain circumstances, but mandatory?

You know, I imagine that given the way the Supreme Court operates, there'll be a way of that that claim won't work.

It'll probably be procedural.

I've seen arguments made that this is not, you know, that this is an argument in Reform Judaism and Reform Judaism isn't really a religion.

Those are obviously, I think, ridiculous, kind of offensive arguments that dispute the sincerity of people's religious beliefs, which is something I think we've moved beyond as a, you know, constitutional order.

The Supreme Court got that right in the 40s when it said judges shouldn't be in the business of telling people their beliefs are insincere or irrelevant.

But I think that there are procedural hurdles.

That claim is not going away, though, right?

So I think that if you found the right plaintiff with the right kind of religious objection, it will be difficult for the Supreme Court, I think, to deal with that kind of claim without people saying, you know, religious liberty matters, but not equally for all faith communities.

And obviously, that's something that we wouldn't want to see as a policy matter.

And it would raise pretty profound constitutional concerns, too, because one of the kind of first principles when it comes to the religion clauses is that you can't prefer some faith traditions over others.

And I think that's what people are wondering if that's something that's going to happen, or if this court will kind of find a way to reassure people that the expansion of religious liberty is something that's going to be equally available to to everyone.

I agree with Mary.

These religious liberty challenges are going to proliferate.

So here's the really interesting question.

One of the defenses to one of those religious liberty lawsuits would be, okay, but if the state recognizes the life of the unborn child, then your religious liberty does not extend to the ability to harm another person.

Interestingly, at the same time, we've been seeing a lot of religious liberty challenges to vaccine mandates coming from the right.

Okay.

And so in those circumstances, if you're talking about a communicable disease and a vaccine that has the potential to prevent and limit transmission of a communicable disease, what you're saying is my religious liberty right is broad enough to where I can potentially inflict upon another person a

dangerous germ or dangerous virus.

And so, there's some tension there with the idea that says, I might have, or I have a religious liberty right to refuse a vaccine,

and then turning around and saying there's no religious liberty right to an abortion if the analysis is based on what impacts other people and doesn't impact other people.

Now, the religious liberty analysis is more complicated than that, but that's an element of it that I find pretty fascinating, just as I've been very, very troubled by the prevalence of anti-vax sentiment in the pro-life right.

Yeah, that is fascinating.

And in the background of a lot of this is going to be anytime those challenges come up, that's going to be another opportunity opportunity for the Supreme Court to think about what it thinks about this interest in protecting life, right?

Is that like something that's going to turn into a full-blown constitutional protection for life in the womb or for fetuses?

Like, that's something that folks, there are some folks in the pro-life or anti-abortion movement absolutely want to do.

And so, I think one thing David's pointing out is if that claim goes to court, we're going to see that as a counter-argument, right?

There's going to be lots of things teed up for the Supreme Court if it wants to think more about fetal personhood.

There are going to be ways that that's going to, I think, easily be kind of served up.

Well, I have so many more questions for you both, and I'm so grateful for your time, but we are out of time for today.

I'll just say thank you so much to everyone who has joined us and really thank you to Mary and David.

I know this topic is incredibly complex and hugely important.

And I'm especially grateful to have people with different viewpoints coming to join us to talk about this.

So thank you both and thank you all.

Thank you.

Thanks, everybody.

That's all for today's edition of Radio Atlantic.

This episode was recorded as part of our live event series, The Big Story.

If you're interested in joining us for a future discussion on the most consequential stories and ideas in the news, and signing up for our newsletters, check out our page at theatlantic.com slash newsletters.

This episode of Radio Atlantic was produced by Kevin Townsend and A.C.

Valdez with editing from Claudina Bade.

Special thanks thanks to the Atlantic's Live Events team.

I'm Adrienne LaFrance.