The Future of Roe

We'll hear arguments number 18,

Roll Against Wade.

The court declared the Texas abortion law to be unconstitutional for two reasons.

First, that the law was impermissibly vague, and second, that it violated a woman's right to determine, to continue or terminate a pregnancy.

This is what the Republicans have been working toward this day for decades.

They have been out there plotting, carefully cultivating these Supreme Court justices so they could have a majority on the bench who would accomplish something that the majority of Americans do not want.

Governors will be able to control what women can and can't do with their own bodies.

This feels like it's written for an audience that already agrees with and will celebrate this opinion and really not for anybody else.

As someone who's come out of the conservative legal movement, I can tell you a decision upholding Roe

would have a convulsive response on the right.

The pro-life movement is not over by any means.

We've still got a lot of work to do in all 50 states and babies will still be losing their lives to abortion for many years to come even under this ruling.

As you probably heard, big Supreme Court news broke this week when a leaked draft opinion from Justice Samuel Alito outlined a decision to overturn Roe v.

Wade, an outcome that is not certain but appears likely.

Reversing this landmark abortion law has tremendous implications.

You may still be processing this information and what it means for America.

I know I am.

I'm Claudine Nebade, and for this episode of Radio Atlantic, I turned to three Atlantic writers to understand what it all means.

One sentiment all the writers agree on is that this is a shocking moment.

The first person I talked with was Molly Jongfast.

She writes a newsletter for The Atlantic called Wait What?

which pretty much sums up how many people are feeling, I think.

Molly is very outspoken in her belief that women should have the right to an abortion.

Hello, Molly.

Hi.

Thanks for having me.

Thanks for coming to talk to us.

Okay, Molly, I'm going to ask you to please go back in time, all the way back to Monday.

It feels less like days away and more like years away, like so much has felt like it's transpired.

Can you tell me where you were and how you first got the news?

It was such an interesting bit of news because, again, a lot of us thought since August 2021 that there was a really good chance that Roe was done.

And we thought this because of this SB8, this Texas state abortion law,

which was allowed to go into effect on September 1st, was the brainchild of Governor Abbott, but even before that, was the brainchild of this organization that had brought these.

I mean, it's a misnomer, but quote-unquote heartbeat bills, though again, they're not hearts, it's cardiac activity.

And again, these are, you know, it's a cardiac the size of your

grain of rice.

But so this had been a movement that had started in Ohio as the very fringes of the,

you know, I want to say anti-choice, of the anti-choice movement.

And so I think it was pretty clear then that this was going to happen, but this leaked draft opinion that was published in Politico,

and I was,

I was like

shocked and not shocked.

I mean, so, you know, I got going on it and I, you know, immediately was like, oh,

you know, and there are certain things.

I mean, it's so interesting because there's such a high level of gaslighting with these conservative justices.

And so, you know, there are things where I'm very believing because I come from like a crazy alcoholic family.

So I'll go along with almost anything.

So I have to read something a couple times to sort of, you know, like I'll like, I'll read something and I'll say, like, maybe that's right.

And then I'll go, wait, wait, wait, wait, wait.

That's not right.

So,

so I just was absolutely flamoxed.

As you said, you know, since the Texas law, it's been months that we've sort of been hearing and talking about like, this is coming.

Like, we, we really think that they're going to overturn Roe.

Like, it's going to happen.

So to hear or to see something, I should say, that is a draft be leaked that sort of already tips in that direction,

that, yeah, what we were, what we've been talking about is actually going, looks like it's going to happen, still kind of hit everybody like a ton of bricks.

Why?

So, you know, they, the, the Supreme Court is quite a little,

you know, scam they got going there, right?

Where they release all the opinions and then they go on vacation.

Like, you know, if there's no possibility for like, let's have a little dialogue about this.

So, I mean, it's a a smart, it's a smart plan.

Right.

It's a smart plan for them.

And

so I was surprised it leaked.

But again, the Roe opinion leaked, right?

And other big,

but like by hours, right?

Not by days.

I mean, it's such a seismic change to the way American women live.

For example, you saw a Democratic governor, Tony

Ivers, from Wisconsin saying,

as long as there's a Democratic governor, women will always have the right to choose in the state of Wisconsin.

Governors will be able to control what women can and can't do with their own bodies.

And across the state line, it will be a completely different rule.

I mean, it is so insane.

I mean, it's one thing to have states that are a little bit different, but you'll have states where you absolutely have no bodily autonomy as a woman.

And then 20 miles across the border, you do.

I mean, it's just so mind-blowingly huge.

But isn't that kind of like what has been happening with these state laws little by little?

And yes, this kind of solidifies that, right?

Yeah.

I mean, I think that was always sort of the play was that they were going to use federalism to undermine it.

Where this ends, no one knows, right?

I mean, it's scary for that reason, but it's also scary because, and I think this is like the unintended consequences that these Republicans republicans don't understand these sort of zealotous religious people who have gotten into the courts don't totally understand which is

this is going to wear away at the foundation of america you are not going to be able to have a country made of states that are so radically different and but i mean it's don't don't you think like our states have always kind of been radically different

I mean, I think that there was more of it was more that I think that you have one party that is working really hard to make them even more different.

And I think when you start to have laws, which again, these are coming up now and they're starting, these laws that say you can't go to another state to have an abortion.

And those are coming up.

Right.

I mean,

these criminal laws, we should say.

Right.

And when those start, when you start going down that road, I mean, are you even the same country, right?

I mean, you are getting into, and I think these are unintended consequences, but I think that we're going to be grappling with them for a long time.

I want to go back to the moment that you heard the news and I'm wondering how quickly your thoughts turned to your mom and your mother's generation.

You know, just wondering if she was on your mind and if did you call her?

Did you want to talk to her?

When I saw that video of Senator Elizabeth Warren finding out and being visibly shaken,

I thought of my mother and I thought about these women.

You know, my mother's 80 and these women are,

they have, you know, they have lived for 49 years with

bodily autonomy.

And they are being told today that that is no longer the law of the land.

Do you think you could take a moment for people who don't know who your mother is to tell us who she is?

So, my mother is a feminist writer who in 1973 wrote a novel about

being

an educated, ambitious woman in America.

And it was called Fear Flying, and it was about

sexual liberation and freedom.

It was,

I want to say, a shot in the sexual revolution.

It was a,

like the, it's not that she got abuse exactly because of it.

Though she did get some.

It was largely that she became sort of synonymous with a kind of sexuality that really undermined her academic achievement in a way that was very hard to watch for me.

And I think it was a huge privilege to write a book that had that kind of impact and sold that many copies.

But I also think that she could never live it down.

And I think it was very tough.

How did your mom talk to you about Roe when you were growing up?

So my mom was like obsessed with this idea.

If I needed to have an abortion, she wanted me to have an abortion.

I don't think we had a huge amount of experience with personal experience with abortion or with pregnancy in general.

You know, my mother had me at 37.

So I mean, I had my kids in my 20s, but it was because it was this time in the 90s where what felt like they might take away abortion between Reagan and Bush, Bush won, where it felt like maybe they would take abortion, that there were, that abortion was under attack again.

And my mom said, you know, if you need an abortion, I will move heaven and earth.

You know, it's like a Jewish mother thing just like if you need something i will get it for you i i mean okay yeah you know i was like 12.

i you know i wouldn't have sex for a number of years i mean i i think i just was like okay so i think for her it was very attached to like bodily autonomy freedom the ability to make choices about family i mean we see the statistics that a lot of these people who have abortions these women who have abortions are you know already have two children they just can't afford to have another kid.

They can't miss the time off work.

They can't do it.

In my mind, anyway, that was what it was always taught to me was that there was, that you could control your own body and that you didn't have to do things just because they had happened to you.

I've seen such insane Republican talking points on this.

And the favorite they have is that you should be able to move.

Like,

these are people who can't afford the gas to go and get an abortion and they're going to move.

I mean, because of the years and years of abortion doctors being murdered and targeted and harassed and that, you know, but I've talked to these doctors and they are quite scared and traumatized.

And they know they're providing a service for women who have no other options.

And, you know, I...

I love the activist branch of abortion activists, but like

a lot of these women, it's not a choice.

Like it is just between, like,

you know, it's hanging on and it's a question of whether or not they're going to, you know, fall below the poverty line and lose everything.

I should say, you, you wrote a piece for The Atlantic, and the title of the piece is My Mother Was Wrong.

And I'm wondering, are you thinking, okay,

there are things that

they did wrong in the 70s?

Like, maybe my mom and her generation, this process clearly didn't work out the way they wanted it to.

And are you thinking, like, there are lessons to be learned for people who are at this moment where they are thinking, what are we going to do?

Well, I think with the second generation feminists, the second wave feminists, they

got very into their own fame in a way that was very destructive.

I remember watching these television panels of my mom fighting with some other conservative and thinking this is not what this is supposed to be about.

Certainly, if Phyllis Shaffley had never existed, we'd be a little better off for sure.

I think not being organized the way the right's organized, I mean, the Koch brothers and ultimately probably Peter, whose last name I will not say, there are a lot of these types who are very smart and organized and they pour money at the problem and they were working on the legislative side in a way that Democrats were not.

And I don't think, I mean, I always think, and this is not hardly, this is conventional wisdom here.

I think that a lot of people felt that liberals just got distracted in sort of shiny things and didn't focus enough on like state legislatures.

And I interview all these Democratic politicians all the time.

I always feel like the problem is they think they're the good guys.

You know, largely they are, but the problem is the good guy doesn't necessarily win.

There's like almost as if they're just unable to explain.

If you're a poor woman in Mississippi, we'll talk about Mississippi because this is Dobbs versus Jackson.

So it's in Mississippi.

If you're a poor woman in Mississippi, Mississippi has a percentage of Mississippians who live under the poverty level.

There are about 350,000 Mississippians who live under the poverty level.

Okay.

You're one of those women.

You get pregnant.

You can't have this baby.

You can't afford it.

And you can't have an abortion now because you can't have abortions in Mississippi and you can't afford to miss two days of work and go to a motel and drive to whatever's near you, which at this point for Mississippi is not, you know, it's not Louisiana.

It's not, if Democrats were better at messaging, that woman would not have celebrated the fall of Roe.

But you and I both talked about this.

There is a real disconnect.

Like, there are women in Mississippi who will celebrate the end of Roe and then find themselves needing an abortion and be like, oh my God.

I mean, it's funny.

It's like in 2016,

but maybe they won't be like, oh my God, because I think for, you know, a lot of people, this is, you know, it's a belief that they hold very dear and closely.

I mean, it's certainly possible, but I think, I think you'd be surprised that when you get to a place where you're so desperate.

And I mean, again, like Amy Coney has this argument that adoption now that there's no,

that you can leave a baby for adoption without any kind of

haven laws, right?

Right.

That perhaps that will mean that women will want to put these babies up for adoption.

I don't know about you, but I was pregnant.

That is, it's a really massive undertaking.

It's a year of your life.

Yeah.

And it's a year of your life.

And then you have other children and you're going to tell them that they're having a sibling, but the sibling is never, you know, I mean, it just,

it strikes me as like an absolutely impossible situation.

You know, you've written that peaceful protest is the next step here.

And, you know, that's definitely one answer to this problem.

Yeah.

Is that going to work?

Is that enough?

I mean, you just described how Republicans who do want to overturn Roe are very organized around and methodical around

how to go about making this happen.

Is peaceful protest, are like women's marches, really going to be the thing?

You know, I actually think they're much more powerful than we think.

I mean, I think if you look at Obamacare,

What saved Obamacare were those people lying in the doorways of their legislators' offices.

McCain McCain was not a huge fan of Obamacare, but he did that thumbs down.

And I actually think that peaceful protest is extremely powerful.

And I mean, I remember when Trump won, there was an enormous march.

He sort of knew that there was only so much he could do.

And I mean, that's why when he would say, you know, there's now reporting that he said to Mark Esper, you should shoot the protesters.

Can't you just shoot them in the legs?

Oh my God.

Again,

we had heard him say stuff like that.

I mean, that's, but I think those protests really got to him.

And I think they actually really do get to politicians.

And I think one of the things that's really been tough about this sort of new modern internet age is that people don't understand quite how powerful protests are.

And the 1960s were, you know, these, they didn't have anything we don't have now.

And they were able to completely change the world.

Molly Jong fast captured some of the feelings of the left about hearing this news.

Her most recent article for The Atlantic is, My Mother Was Wrong About Roe v.

Wade.

The Atlantic often turns to attorneys to help us make sense of our laws.

One of those attorneys is Mary Ziegler, a visiting professor at Harvard and author of Abortion and the Law in America, Roe v.

Wade to the Present.

She talked to me about what the legal dominoes of this opinion might look like.

Mary, Can you take me back to Monday when you first saw the news that this draft opinion had leaked and just tell me what your reaction was in that moment.

I mean I was I was kind of shocked.

I think most people were so I there's sort of by what was I shocked right so I mean since December I've been expecting the court to reverse Roe v.

Wade this June.

So the fact that the draft did that was not really surprising.

The fact that it leaked was surprising.

There's not, to my knowledge, been a leak like this in the history of the Supreme Court.

So I was shocked by that and I was a little bit surprised by the tone of the the opinion.

There has been, I think, a sense that the court would overrule Roe and that that would potentially do institutional damage to the court.

So I was expecting the court to have the sense to try to kind of do damage control, right?

To kind of frame the opinion in a way that would minimize the hit to the court's popularity that we're likely to see, the kind of pushback from Democrats that we're likely to see.

And this opinion really, or this draft anyway, really doesn't do any of that.

It feels almost like a taunting kind of opinion.

And so that surprised me too.

This is still, you know, of course, a draft opinion.

And

I'm just curious what you think the likelihood is that this opinion is actually pretty close to what we're going to see.

And if not, you know, what other potential options are there for a final opinion?

Well, I think,

so the first thing to be clear about is this is a first draft and it's from February.

So we should, you know, it's quite common for the Supreme Court to go through dozens of drafts before, sometimes as many as 20 before a final opinion issues.

So there's reason to believe that the details of this draft will not be the same as what we see in the final opinion.

That said, I'd be really surprised if the kind of general thrust of the opinion or the votes in the opinion changed much.

The reason for that, I think, is one, you know, the conservative justices have been pretty clear that they think Roe is wrongly decided.

And two, you know, the leak itself would make it harder for them to switch their votes.

I think they would be perceived as caving to political pressure, and that would be, you know, particularly intense on the right.

So I think the general conclusion won't change, and I think the general mode of analysis won't change.

So by which I mean, I think the court is going to be focusing on what the justices frame as the kind of original public meaning of the 14th Amendment and arguing that that is not consistent with the idea of a right to abortion.

And the argument is that that's true because at the time the 14th Amendment was passed, no one thought there was a constitutional right to abortion, and that, in fact, many states were criminalizing abortion, which would be inconsistent with the idea that there's a right to abortion.

So I think that kind of historical methodology is something we're quite likely to see.

So the kind of broad contours of the draft are likely to be there in the final opinion, even if the details change.

Yeah.

And

just to remind people who are listening, the 14th Amendment was passed in 1868.

Right.

So we're talking about kind of 19th century popular opinion.

Yeah.

Well, so let's take the draft as it is.

It does not outlaw abortion on the federal level, but what it does is give the states total legislative control over abortion.

And that means it looks like 26 states will have bans on abortion.

And just kind of walk me through how quickly something like that happens.

Like, is it immediate once the opinion is issued?

It really varies by state.

Some of the state laws are not particularly clear.

So, for example,

there are some states that say the Attorney General has to certify that Roe has been overturned and that

then the law would go into effect sometime thereafter, sometimes a roughly 30-day window.

Other states just simply say once Roe is gone, our laws go into effect, or there are pre-Roe criminal laws where the state really just hasn't said what happens at all, right?

Other than the law is still on the books and can theoretically spring back into life.

So in some instances, we don't really know exactly when the law would go into effect.

In some instances, we know it would be a matter of weeks or maybe a month.

But we would expect to see states to move on this, you know, quite quickly after the Supreme Court overturns Roe.

What if anything do states legally owe to one another in terms of respecting the law in that state, like the ability for somebody to be able to go go and have an abortion in New York.

Is there legal footing for a state to say, when you come back, we can prosecute you?

It's complicated,

is the short answer, right?

So, one, there are, you know, constitutional questions.

So, I mean, first of all, at the moment, with maybe the exception of a bill that's floating around in Louisiana, states are not taking the position that they want to punish people who have abortions.

At the moment, it's mostly punishing doctors who perform abortions or other people who quote unquote aid or abet abortions, which could include anybody from abortion funds to partners to parents who are helping people have abortions.

But I think it's reasonable to ask whether states are eventually going to punish people who have abortions too.

But in terms of can states regulate what happens in other states, there are constitutional questions about that involving everything from the right to travel to the state's ability to affect commerce in other states to the obligations of states under some circumstances to extradite fugitives to other states, depending on the facts facts of what's going on.

And then there are just questions, what are called choice of law questions, which arise when you have two states that are taking contradictory positions on an issue.

The question becomes, you know, whose law applies and how do we know that.

The Supreme Court precedent, even on that question, isn't very clear.

So there's a lot of uncertainty.

It's obviously we know the Supreme Court is conservative and doesn't think there's a right to abortion.

It's reasonable to assume that that might

shed or kind of cast some kind of shadow over the court's reasoning, but these are all areas where the law is particularly unsettled.

I think people are wondering about what else

comes next in terms of beyond abortion laws.

Are there other doors that were opened in this opinion by Justice Alito that

could have people revisiting other precedent-setting laws?

Yeah, there are.

There definitely could be, right?

I mean, so Justice Alito's draft tries pretty hard to say, you know, this is really about Roe, Roe is different.

And that's not a completely implausible argument from a political standpoint, because within the conservative legal movement and certainly the anti-abortion movement, there is a view that Roe is sort of the ultimate béte noir, is the ultimate example of judicial activism.

And so it's fair to assume that conservatives do view Roe as different.

That said, a lot of the reasoning in the opinion could apply very easily to a variety of other constitutional rights.

So the reasoning, right, that in the 19th century, at at the time of the ratification of the 14th Amendment, there was no recognition of an abortion right, and abortion was being criminalized.

I mean, of course, there was no recognition of a right to same-sex marriage.

Of course, there was no sense that interracial couples could constitutionally demand to get married.

Birth control was being criminalized at the state as well as federal level.

You know, sex education materials were being criminalized at the state as well as federal level.

And so, the idea that that methodology naturally applies to Roe and not to anything else just doesn't hold much water.

The other way the draft tries to get around this is essentially by saying, look, you know, what makes abortion different is because it's the taking of a human life.

That, you know, fetal life or the life of an unborn child, the opinion kind of toggles back and forth between that kind of language, is valuable in ways that make the abortion right different.

If that's how the court sees things, that's going to open the door to a different potential issue, which is the possibility that the court will recognize personhood, right?

So it's worth kind of unpacking what is that.

So under the 14th Amendment,

the 14th Amendment uses the word person in describing rights to due process of the law and equal protection of the law.

And anti-abortion groups take the position that the word person applies before as well as after birth and that therefore abortion is unconstitutional, meaning you could not have legal abortion in California or New York or anywhere else.

And groups have already asked the Supreme Court to recognize this argument.

So the more the court kind of leans into this, you know, abortion is different because it's the taking of a human life kind of reasoning, the more I think anti-abortion groups are going to push the court to go even further on that.

So I think the court is sort of putting itself in the position of either kind of dropping hints that maybe you could get a decision declaring abortion unconstitutional, or maybe down the road you could get the court to revisit a wide variety of other precedents as well.

So I want to get back to this thing that you said in the very beginning.

You say there's what feels like taunting in this opinion.

And I'm curious why you think that.

Just the language that Roe was, you know, egregiously wrong.

There's comparisons of Roe to decisions upholding racial segregation.

There's a whole wide variety of pro-life talking points in this opinion, like the idea that abortion distorted, or that Roe rather distorted the rest of American jurisprudence, that Roe inflamed our national politics.

There's sort of footnotes suggesting that people who legalized wanted abortion to be legal were racist.

There's not a lot of sense that anyone reasonable would disagree with or be hurt by this opinion.

This feels like it's written for an audience that already agrees with and will celebrate this opinion and really not for anybody else.

Does this feel like a new moment in the state of the Supreme Court?

It does, yeah, absolutely.

I mean, so when I was in law school and when I was a younger legal scholar, there was this sort of consensus that, you know, the court would definitely stray from popular opinion, but not too far, right?

So when I was, you know, a young legal scholar, people would write books called like the most democratic branch, you know, which was Jeffrey Rosen's book about the Supreme Court.

And that was because the court really didn't

often do things that were very, very unpopular, didn't want to wade into many culture war issues, didn't want to have to get its hands dirty.

And that was what everybody had come to expect.

So even when the court did things that were really divisive, it often did them in ways that, you know, that sort of tried to minimize harm to the court's institutional standing.

And so that's what I had come to expect.

And this seems to be a court, as Justice Alito even says in this draft, basically, he says, we don't,

you know, I don't know if this opinion will produce a backlash.

And kind of frankly, like, I don't care.

That's not my job.

I, you know, if the court does stuff that's unpopular, that's not really our problem.

That really is striking to me.

And I think it's also striking because this is what the court is doing when everybody is watching, right?

So if you think about it, Roe v.

Wade is by far the best known Supreme Court opinion.

And so if the court is willing to kind of court the sort of political response we'd see to the overruling of Roe, you know, you can only imagine if there's no response, right?

If Justice Alito is right and this basically has no consequences that anybody cares about, the court will be completely unleashed, right?

And that's not what we've come to expect from the court.

Even though in in theory the court is not accountable to the people, no one votes for the court, that's always been true.

The court has always sort of acted as if there's a check on it.

And that doesn't seem to be true anymore.

Okay, stepping outside of the legal conversation,

I'm just wondering how in your personal life you're

talking about this, thinking about this, if you have a family, if you're discussing it with your family, I'm just curious about the,

you know, how does this make you feel as a woman, as an American?

It's hard.

I mean,

I had to go on NPR right after the oral argument.

And I'm usually, I mean, I think I'm probably well known in this space for being able to sound, you know, fairly clear-headed and even-handed.

It just, I was having a hard time doing it because

there's this lack of empathy that I heard in the justices that really disturbed me as someone who, you know, studies this and really tries to be empathetic to people with whom I disagree because people feel really strongly about this issue.

I just felt that these were justices who didn't have that at all, right?

And that was disturbing and saddening to me.

And I do have a family.

I have a five-year-old daughter.

And I mean, we've recently moved from Florida, and that was part of the reason.

I mean, I think about what it would mean for my daughter to grow up, you know, in a state that has certain attitudes about women and other people who are pregnant.

And I didn't

like that.

You moved from Florida because you weren't happy with the laws there?

In part, yeah.

We moved from Florida in part.

There were other reasons for the move as well, but

we didn't feel that we belonged there anymore in part because the state had changed so much politically.

Have you thought about how America might look different after this law if more people start to think like that and leave their states?

Yeah, I mean, that's not a good, I mean, and I had a colleague this semester say, well, it's too bad because, you know, we want to have states be more politically diverse.

We want,

but I mean, of course, that's not something you can reasonably say to people who are who are the ones being made uncomfortable.

And

but it's it's part of what's polarizing the country.

You know, there's a kind of vicious cycle in which states pass really extreme policies that make people who are different politically or even moderate feel uncomfortable and maybe leave.

And then that fuels another cycle of polarization where the people who are left vote for even more extreme policies and then, you know, you rinse and repeat, right?

And I think that's part of the problem we see in this draft is that people aren't talking to people who disagree with them.

They have no empathy or concern for people who disagree with them.

They demonize people who disagree with them.

And that leaves you much worse off when you're thinking about abortion.

But I think unfortunately that's where we are now.

Mary Ziegler's most recent article for The Atlantic is the conservatives aren't just ending Roe, they're they're delighting in it.

Mary seems to believe that America will change dramatically if Roe is indeed overturned.

The constitutional lawyer and contributing Atlantic writer David French, who writes the newsletter The Third Rail, agrees with Mary that America will change, but he has a different legal perspective on Justice Alito's opinion.

Let's go back to earlier in the week.

Let's go back to Monday.

How did you feel when you first heard that the draft had been leaked?

I was incredulous.

It was one of the most surprising bits of legal news I'd ever seen in my life.

To have this leak come out, to see an actual draft, even that was a couple of months old by the time that it came out,

it was one of the more stunning things I've experienced in my legal career.

You know, that's your reaction to the leak, which I think was stunning.

What were your first thoughts about the draft opinion?

The actual opinion did not surprise me after the oral argument.

Before the oral argument, I thought the two most likely outcomes were either incremental change, in other words, upholding the Mississippi law without fundamentally disturbing the Roe-Casey framework, just adjusting it a bit.

But after the oral argument, it became clear to me that a majority of the court was at least seriously considering reversing Roe.

So the opinion itself was not at all surprising.

The author is not surprising, and the substance is not surprising.

Oh, you expected that Justice Alito would be the one to write this opinion.

Well, you know, the interesting thing is I didn't expect it would be Roberts because I felt Roberts would not be willing to overturn Rowan Casey.

And then it goes, the assignment goes by seniority.

Thomas would be the next person, and you would think he might assign it to himself.

But time will tell.

I think Thomas wants to write a separate concurrence.

So then Alita is next sort of on the hierarchy.

Yeah.

Before we jump into even more legal questions, I'm interested if you had discussions with family and friends, loved ones about this opinion and what kind of feelings you've heard people having about the draft, I should say.

You know, it's interesting.

The reaction of others has been very divided between I'm primarily concerned either from a concern over abortion rights or a gratitude for the end of row, sort of the pro-life or pro-choice positions.

I've had just as many people go straight to the same-sex marriage question, to the gay marriage question, and the implications there.

For me, you know, this, I've, I've been somebody who's been a pro-life attorney for a really long time.

And I remember the Casey decision in 1992.

And I remember reading how Kennedy flipped, Justice Kennedy flipped after initially voting to overturn Roe and then decided by the time the opinion was issued that he was going to uphold Roe and Casey.

So my position on the draft is really pretty simple.

It's just a draft and we don't know.

We don't know the identity of the leaker.

We don't know the state of play right now.

And so I have completely sort of withheld any kind of emotional investment one way or the other in this.

The draft doesn't surprise me, but it's just a draft.

There is not a final decision yet, and these things are not final until they are published.

So you're skeptical that it's going to look like this in the end.

I wouldn't say I'm skeptical.

I'm just saying I'm thinking if you pushed me, I'd say it's more likely than not that it'll be looked like this in the end, but it is not certain.

I mean, in terms of what Justice Alita wrote in the opinion, you know, he said, rather than settling the matter, he said, quote, Roe and Casey have inflamed debate and deepened division.

Doesn't an opinion like this result in that same thing, but we're simply swinging the law in the other direction?

Oh, I don't think there's any question.

There's no way this opinion that could come out that doesn't inflame debate.

This issue is extraordinarily sensitive and extraordinarily contentious, no matter which direction it pushes.

And I think there was a lot of folks who thought that after Roe was reaffirmed in the Casey decision in 1992, that that might ease debate.

And it did not.

So the interesting thing, though, is that what you're going to end up happening, if this is the actual opinion, opinion,

many Americans live in

what you might want to call sort of super majority states.

So if you're in a red state like I am in Tennessee, it is a super majority pro-life state.

But if you live in California, it's a super majority pro-choice state.

And you're going to have most states sort of break out in that direction, where if you're living in one of those supermajority states, your desired outcome is going to happen.

And so for a lot of people, life isn't going to change as much as you think that they might think it would change.

Because, again, Roe, ending Roe doesn't ban abortion, but for some people, it obviously will.

And also, there is.

I mean, I think I, I guess I would say that, like, there are still in the middle states, I guess,

where it will maybe change a lot for people.

And I wonder, and this is, you know, obviously like outside of the legal argument, like, is this change

one that we are going to see further entrench our differences and the states' differences?

I think to some extent it will.

You will see a more hardening of a blue identity in the short term and a more hardening of a red identity.

And then you're going to have this collection of swing states, these sort of purple states.

So I would put it like this.

You're going to have sort of three broad categories of state laws.

On the one hand, you'll have the New York York or the California or the Illinois, which is going to be very broadly protection of abortion rights.

On the other end, you're going to have a Tennessee or an Alabama or a Mississippi that are going to be very sharply restrictive.

And then you're going to have, say, a Virginia or even a Florida or some others that are much more purple states, which might restrict abortion more than Roe permitted, but still permits abortion, say up to 15 weeks or maybe up to 20 weeks.

And there's going to be a kind of a pot paris.

And then looming in the background is, will there be federal legislation?

And, you know, the pro-life movement is going to have some challenges here.

There's an old phrase of when the dog catches the car.

You know, what does it do?

What now?

What now?

And the truth is, for a lot of years, if you were a red state legislator, there was no downside to you in sort of passing a wide variety.

of abortion restrictive bills because you weren't going to live with the consequences.

You were going to pass them and they were were going to get blocked in court.

And so you could go to your constituents and say, I passed a pro-life bill, you know, and those darn judges blocked it.

But now, if the elito opinion holds, those laws go into effect.

And some of the legal regimes that are going to exist are confused, poorly drafted, poorly drawn.

And so there's going to be a pressure on a political response to this that will create a more rational and coherent set of statutes.

Because right now, some states, frankly, are a mess.

Okay, so given what you've said, I'm curious if you think that this draft opinion is a smart one to issue now

in terms of maintaining stability in the country and staying away from legal chaos.

Right.

I guess I'll say.

Right.

No, I understand.

I think

the decision itself, if you're looking at the reasoning of Justice Alito, is a very sound discussion of the history of American abortion, historically sound, a history of American abortion, legally sound from the standpoint of analyzing what rights are found in the Constitution and which rights are implied in the Constitution and which rights are not.

And now, the issue that you have then is the practical effect.

Now, there are a number of ways in which the courts have dealt with these kinds of issues.

And, you know, one of the, when Brown versus Board of Education was decided, I believe the phrase was that the decision would be implemented with all deliberate speed.

I don't know what deliberate speed actually means, but it seems to mean not fast.

And unfortunately, in the Brown case, the actual implementation of the decision was,

you know, just

grotesquely slow.

like grotesquely slow.

So there would be some interesting questions about

what, as a practical matter, the immediate remedy would be.

How will the federal courts respond to various competing kinds of challenges?

Will the Supreme Court, in a final draft, sort of create a kind of timetable?

Those are questions that are left unanswered.

But I think the short answer to this, one of the important short answers for people to realize is that this issue is so contentious that there was no legal outcome here, in my view, that wasn't going to create a convulsive response.

So, a lot of folks have talked about the convulsive response on the left.

In other words, there were the spontaneous demonstrations that arose outside the Supreme Court.

As someone who's come out of the conservative legal movement, I could tell you a decision upholding Roe would have a convulsive response on the right.

That a sense of, wait a minute, we have elected presidents and confirmed justices, and these justices do not apply the legal philosophy that we thought that they had.

And so

this issue is one of those that's so fraught that there's no path forward where you can say this clearly reduces tensions in the United States.

I want to ask you about something that I think you probably love to talk about, which is

our enumerated rights

and what those are and how Justice Alito applies that thinking to this opinion.

So a lot of controversy has ensued over the course of American history over what are the rights that you possess that aren't specifically listed in the Constitution.

Because we know there are some because the Constitution says there are some.

Which ones are they?

And that's where you get this idea of what's called substantive due process, which sort of the 14th Amendment is used as a hook.

And this is the doctrine that's, for example, ended bans on interracial marriage.

This is the doctrine that allows parents to control the education of their child to certain degrees.

This is a doctrine that has ended bans on sodomy, for example, or, you know, constitutionalized gay marriage.

And that's where the abortion right comes from in Roe.

So that's why when people look at this decision and they say, wait a minute.

If you're going to overrule Roe, what does this mean for all of the other cases that have been decided under the same 14th Amendment framework?

And that's why a lot of people have then asked me, what does this mean for gay marriage?

And there's been a lot of thoughtful people who've written and asked about that.

Yeah, what does it mean for gay marriage?

Yeah, so the interesting thing is Alito, in his opinion,

very clearly distinguishes his ruling from many of those other rulings.

So what he says is this whole notion of substantive due process is controversial.

That's a word that he uses.

But twice he says that there's a sharp distinction between the abortion cases and these other cases like interracial marriage or sodomy or same-sex marriage.

And what's the sharp distinction?

The sharp distinction is that abortion ends what Roe and Casey call a potential life and what the state of Mississippi calls a

unborn child, and that these other cases don't have that same impact on other people.

So, for example, same-sex marriage is consenting adults.

You know, the Lawrence v.

Texas involves sexual intimacy amongst consenting adults, interracial marriage, consenting adults.

Contraception, you know, consenting adults.

And so what he does is he says, Roe is just different.

Well, wait, is it?

I mean, is his placing that language in the opinion enough for this to not open the door?

Yes Yes and no.

Okay, so here's the argument for yes, and I'll tell you the argument for no.

Okay.

The argument for yes is by him placing this in the opinion, he's creating precedent that says, signed on to by a majority of the Supreme Court, this is abortion is just different.

So this case itself would in one way be read as solidifying O'Bergefell loving Griswold, but eliminating Roe.

O'Bergefell is the Supreme Court case that recognized a right of same-sex marriage in the Constitution.

So, because the majority of the court, if this is the majority opinion, says there's a sharp distinction between these things, then you've got court precedent that says there's a sharp distinction between these things, which means if you're going to try to say that the Dobbs case is like Obergefell, the Dobbs case says it's not.

So, here's the yes that the case that Dobbs does not disrupt gay marriage is just read Dobbs.

It's saying abortion is different.

The immediate next response to that is, well, David, you say, read Dobbs, it's precedent, but doesn't Dobbs basically say precedents can be overturned?

Fair enough.

Fair enough.

Do you think that the overturning of Roe is inevitable?

It is.

I will say it is more likely than it has ever been.

Obviously, because this draft opinion exists, we don't know.

It's more likely than it's ever been, but if it doesn't happen now,

I'm not sure it will happen.

This is the moment.

If it's going to happen, I think now is when it will happen.

There have been a lot of highly unusual events, both engineered by politicians and the happenstance of the way

of Supreme Court openings that have created a world in which a vast majority of the court or the overwhelming majority of the court has has been nominated and confirmed by Republican presidents in spite of the fact the Republican presidents have not won the majority of the elections in the last generation.

And so that's all very unusual.

And some of it's been artificially created, for example, by the McConnell-led Senate at the very last year of Obama's second term.

But over the course of time,

who sits on the court more broadly reflects who wins presidential elections.

And we're at this really unusual moment where a one-term president had three nominations.

Right.

And we've had two-term presidents, multiple two-term presidents who didn't have that many nominations.

I hope these conversations with Molly, Mary, and David have offered a nuanced understanding of Justice Alita's writings on Roe v.

Wade and helped to illuminate various perspectives on a law that may be the lightning rod issue in America.

For me, these conversations leave me thinking about what our state differences may look like in the coming years and wondering where and how Americans will find common ground.

There have always been cultural differences among us, state to state, city to city, neighbor to neighbor.

But when our differences start to become codified in law, the lines that divide us feel more hardened.

You can read articles and newsletters from the writers you heard today at The Atlantic.

Molly Jong Fast's most recent article is, My Mother Was Wrong About Roe v.

Wade.

She also writes the newsletter, Wait What?

Mary Ziegler's article is, The Conservatives Aren't Just Ending Roe, They're Delighting in It.

And she has a forthcoming book entitled Dollars for Life, The Anti-Abortion Movement and the Fall of the Republican Establishment.

David French's most recent article is What Alita's Opinion Got Right.

He writes the newsletter, The Third Rail.

I'm Claudina Bade, executive producer for the Atlantic's audio team.

This episode of Radio Atlantic was produced by A.C.

Valdez and Kevin Townsend.

Thanks as well to executive editor Adrian LaFrance and Becca Rashid.

marching on.