[music]

Melissa Harris-Perry: This is The Takeaway. I'm Melissa Harris-Perry. Thank you for being with us. As many of you have undoubtedly learned by now, the Supreme court has issued its ruling in the much anticipated Dobbs V. Jackson women's health. The decision has two parts. All of the court's conservative justices ruled in a six to three decision to uphold Mississippi's ban on abortion after 15 weeks. In a second portion of the decision Roe v. Wade was explicitly overturned by the court in a five to four decision as Chief Justice John Roberts joined with the more liberal members of the court.

The outcome overrules Roe v. Wade and ends federal recognition of a constitutional right to an abortion after nearly 50 years. In its summary, the decision says, ''The constitution does not confer a right to abortion. Roe and Casey are overruled and the authority to regulate abortion is returned to the people and their elected representatives. Within minutes of the decision becoming public one of those elected representatives, Attorney General Eric Schmitt of Missouri, issued an opinion making Missouri the first state in the country to end legal access to abortion. He was able to issue this decision because of Missouri's House Bill 126, passed in 2019. It was a trigger law that banned abortions in the state if the Supreme Court overturned Roe v. Wade. Here's what Missouri attorney general Eric Schmitt had to say.

Eric Schmitt: I am humbled to be a part of this and the first attorney general in the country to effectively end abortion.

Melissa Harris-Perry: About half of American states are expected to follow suit and institute all out bans on abortion. Of course, given that a clear majority of Americans support legal access to abortion, many have responded quite differently than the Missouri AG. For millions, this is a moment of distress and mourning. Those are sounds from outside the Supreme Court when the decision was announced on Friday morning. With me now is Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law. Kenji, thanks for being here.

Kenji Yoshino: Thank you for having me, Melissa.

Melissa Harris-Perry: Also with us is Melissa Murray, Law Professor at NYU, faculty director of the Birnbaum Women’s Leadership Network and co-host of the legal podcast Strict Scrutiny. Melissa again, welcome back to The Takeaway.

Melissa Murray: Thank you for having me, Melissa.

Melissa Harris-Perry: Kenji, I just want to start with making sure that our listeners know what was in the majority opinion. Is it essentially similar to what was leaked in the Aledo draft?

Kenji Yoshino: I haven't had time to fully metabolize the decision yet, but it looks very similar. In terms of the key takeaways as you outlined at the top Melissa, it is very similar to the draft opinion that was leaked in May. It's not only that the law was upheld, but also that Roe, decided in 1973 and Casey, which reaffirmed Roe in 1992, are both overruled. Those two decisions said that a woman's right to choose an abortion could not be restricted through an undue burden until the point of viability and the Supreme Court has now removed that right.

Melissa Harris-Perry: Kenji, I'm going to stick with you on this for just one more moment. It was possible, just to be clear, was it possible for the court to have upheld the Mississippi Law while not making a full reversal of Casey and of Roe?

Kenji Yoshino: Absolutely. This is where Chief Justice Roberts parted company with his conservative colleagues, because we have a five member majority that overruled Casey and Roe and the chief justice wrote a separate concurrence. One thing that we didn't have, I'll point, out when the draft opinion was leaked in May were the concurrences and the defense. We didn't really know how other justices would opine. There was a lot of speculation that Chief Justice Roberts would not want to go as far. Indeed he clarified that today by saying he could easily have upheld the law without actually overturning Roe and Casey.

He chastised his colleagues for taking the case too far and said that incrementalism and not going further than you need to go in order to decide a case is a principle of judicial restraint that his colleagues should have observed. The way he would've decided the case is to say that the viability line was incoherent and that a woman's right to choose should still exist. The Mississippi Law, which gave women a certain number of weeks, 15 weeks, to decide was ample time enough for them to decide whether to exercise the abortion right.

Melissa Harris-Perry: Melissa, there was certainly the leaked opinion earlier this year, but even before that, in 2021, there is a Harvard Law Review article that you wrote. It's titled Race-ing Roe. In it, you predict with fairly stunning clarity not only what this decision and opinion is, but, as Kenji was saying, about one of the concurrences. Can you talk about the concurrent opinion that Justice Thomas wrote and the ways that it reflects what you argued in this 2021 Harvard Law Review piece?

Melissa Murray: Sure, Melissa. Justice Thomas, it should be known, has long been a stalwart opponent of abortion rights. More than that, he has been very critical of what he terms the court's substantive due process jurisprudence. Essentially this jurisprudence finds in the 14th Amendment's guarantee of Liberty a broad substantive to a range of other fundamental rights that are not necessarily enumerated, but are implied in the Constitution's grant of Liberty. He argues that that entire line of argument is [unintelligible 00:06:32]. The problem is that he hasn't really found a good reason to convince his other colleagues to depart from stare decisis to completely dismantle that line of reasoning.

One of the things that he did in a 2019 shadow docket opinion in a case called Box versus Planned Parenthood is associate the right to an abortion and the right to contraception with the eugenics movement of the 1920s and the implications are pretty obvious. He's arguing that the roots of reproductive rights, abortion and contraception specifically, are not in 1973 with Roe or 1965 with Griswold v. Connecticut which first announced the right to privacy, but rather in the 1920s with this eugenic campaign to enact population control over the "less desirable of the species." He's essentially arguing that abortion and contraception are methods and vehicles for eugenic deracination, that they are racial injustices.

He reprises this theme in his concurrence. Justice Alito also in the majority opinion notes this in footnote 41 and this is a theory that didn't get a lot of takers in 2019 when he first floated it, but it has absolutely flourished in the lower federal court. There was a case just last year in April from the sixth circuit in which the majority and four of the concurrences all cited this notion of eugenic abortion. As we know, the court has very rarely overruled past precedence but in some very stunning cases, it has done so explicitly for the purpose of remedying or racial injustice. Of course, Brown versus Board of Education's overruling of Plessy v. Ferguson and separate but equal is the most obvious example. He's laying a foundation here. It's been taken up by others and it lives in this opinion.

Melissa Harris-Perry: It does seem, let's just to stick on this for a moment, in this concurrent he also writes that, in fact, the court should now reconsider, this is a quote, "We should reconsider all of this court's substantive due process precedence." Then names three. Melissa, again, can you tell us what those precedents currently protect?

Melissa Murray: The precedents that he identifies are Obergefell v. Hodges, which is the 2015 decision that legalized same sex marriage across the country, 2003's Lawrence v. Texas which provides a right to engage in sex outside of marriage and specifically same sex sexuality, and 1965's, Griswold v. Connecticut, which provides a right to use contraception and famously announced the right of privacy. If there's anything that should be taken away from today's opinion, it's that this will not stop at abortion. He hasn't gotten a lot of takers for this, but he's laying the seeds for a campaign to dismantle all of these other rights.

Although the majority opinion says that this is only about abortion, Justice Thomas is making clear and indeed inviting challenges to these other fundamental rights that he says are not deeply rooted in the constitution and are not explicit in the Constitution's text and therefore are constitutional apostasies.

Melissa Harris-Perry: Kenji, in many ways this brings us right to the core of your own work. Can you reflect on this for us as well?

Kenji Yoshino: Yes. Ever since the draft opinion was issued, I talked about how this is something that I've spent my life writing and working on, which the rights of the LGBTQ community. More broadly, it's also saying about the right to privacy. Just for your listeners, when we legal academics, talk about substantive due process, what we're really talking about is the right to privacy cases that began with the 1965 contraception case in Griswold, and then arced through cases like Lawrence and Obergefell and through Roe and through Casey as well. It's really that entire edifice. One of the most galling aspects of Justice Alito's opinion is that it keeps saying, "This is just a ticket good for one day. This opinion doesn't affect anything other than abortion."

When he issued that draft opinion, and that part of it has survived into the current opinion, I basically wrote a piece that said, "That's not how adjudication works." If you lay out a test that says, these rights, the rights to privacy, have to be deeply rooted in this nation's history and traditions, then that is perforce going to apply to other cases. Contraception, same-sex marriage, same-sex sexual intimacy, were not deeply rooted in this nation's history and traditions. I would say that that's one of the great things about these cases, that they remedied deep historical injustices. The natural implication of what Alito is saying, which Thomas picks up on and the dissent in this opinion on Friday takes up on, which was written by Breyer, is to say this doesn't end here.

Melissa Murray is exactly right in saying that if you apply this "deeply rooted in this nation's history and traditions" precept, then all of those cases, whether it's the same-sex marriage, the decision of Obergefell, whether it's the Lawrence decision, which is deemed to be the Brown v. Board, we're in Pride Month right now. Lawrence is seen as the Brown v. Board of the gay rights movement in terms of a legal precedent that gave us dignity and created an aegis for the community, all the way back to the right to contraception. Really, I don't want to pivot too quickly to other issues because I think we should really be focused on the rights of women and of Roe, but I do want to say, and I think we're right to say, that this is not just about Roe. We are opening a new, very dark, chapter in the nation's legal history.

Melissa Harris-Perry: Melissa, can we talk a bit about-- There's a word I typically dislike using in American politics and law, and that is unprecedented, because, so often, dig a little and you'll find a precedent, but this moment feels unprecedented. I want you to help me understand whether or not it is. Have we previously experienced, in this country, a constitutional right instantiated for a matter of decades that was then removed by the Court?

Melissa Murray: I can't think of any other analog to what we are seeing with the dismantling of Roe v. Wade and Casey. Obviously, there are some who argue that we have withdrawn property rights from individuals, for example. They mention the Fourteenth Amendment withdrawing the opportunity of individuals to maintain slavery, but in our recent history certainly, the idea that a right that has been extended by the Court, and indeed the trajectory has been to expand rights, to have a right withdrawn sua sponte by the Court is, I think, in fact, unprecedented.

Melissa Harris-Perry: Does that mean, Kenji, that if, potentially this is indeed unprecedented, is the pathway forward, legally-- I just want to stay on the judicial matter at this point. I think there's lots of other conversations to be had about activism and about medicine and all of those questions. Just as a matter of law, is there a clear pathway for a what's next? Is it simply that it goes to legislative action? I'm just trying to understand how much is this truly the end of the judicial road on this question.

Kenji Yoshino: Certainly this majority opinion is quite insistent on there are responses for states can guarantee this. Their whole point is that you can leave it to the states. Congress may be able to intervene, although, of course, nobody is holding their breath with the Congress that we have today, and there might be constitutional limits to what Congress can do with regard to its legislative powers here. I think, Melissa, that what we might see, especially if we continue on down this road, is the precedent that I do see here, which is a precedent of judicial illegitimacy that harkens back to the New Deal when Franklin Delano Roosevelt was trying to enact welfare legislation, and a very conservative, out-of-step with the rest of the country Court kept striking down all of his social welfare legislation. That's what led to the court-packing threat on the part of Franklin Delano Roosevelt.

I know that we've heard reforms like should we expand the number of justices on the Court, particularly since Merrick Garland's seat was stolen. Alternatively, should we limit the tenure of the justices to 18 years? Article 3 says you have lifetime tenure in the federal judiciary, but that may not mean that you have lifetime tenure on the Supreme Court. I think those nuclear options that are seen not in a Senate filibuster sense but in the judicial sense of a nuclear option, of really actually looking carefully at the institution of the Court and to bring other kinds of disciplines to bear on it when it is so out of step with the country, so out of step with the way in which we understand precedent working, is something that we might see more of in the months and years to come.

Melissa Harris-Perry: Melissa, as Kenji is talking about the Court being out of step, I'm assuming that this is not just about Roe but also about many decisions that have been coming down in the past couple of weeks.

Melissa Murray: I think that's exactly right. This is a conservative six-to-three supermajority. It is a supermajority that was formed not necessarily by law but by politics, as Kenji suggests, and it is a Court with a lot of maximalist energy. We're all talking about this case dealing with abortion, but just yesterday the Court issued a massive decision that would open the door for a massive expansion of the Second Amendment. We saw just on Monday a decision that came down that requires states to publicly fund religious schools, chipping away at the traditional separation of church and state.

This is a Court that is doing a lot. We're focused on abortion, but we need to zoom out and focus on the broader picture because there is a lot going on here. I do think we need to worry about the question of judicial illegitimacy.

Melissa Harris-Perry: Melissa, what do the dissenting opinions in this case tell you about what might be possible?

Melissa Murray: The dissenters here, there's a single opinion authored by Justices Breyer, Kagan, and Sotomayor. They make a lot of the same claims, but they also seem to focus, again, on the prospect of grassroots political change. This was something that Justice Sotomayor really emphasized at the oral argument in December. I think at some point in that oral argument she realized she was not going to sway her colleagues, and she began speaking to the audience outside of the courtroom. I think that dissent that we saw in this opinion on Friday is one that really does speak beyond the Court and the Justices.

I'm really speaking to the people laying out why this decision is illegitimate and why it is a sharp departure from stare decisis but also making clear that any change that is going to happen is not necessarily going to precede from this Court or even the lower federal courts, it's going to precede from the democratic process.

Melissa Harris-Perry: Kenji, it is worth noting that, for many, today is a victory, this decision is a victory. We saw that even on the steps of the Supreme Court. I'm wondering, in the context of a democracy, and a constitutional one presumably, how we balance that kind of sharp division?

Kenji Yoshino: I think the way that we think about it, Melissa, is that whatever side of this you're on, you have to understand how momentous this decision is. I want every single person, wherever they are on the political spectrum, to remember where they're standing today or sitting today as they hear about this opinion because this is a seismic moment in our legal lives. As you say, on both sides, Melissa Harris-Perry, the struggle continues.

Melissa Harris-Perry: Yet as we sit in a moment of acknowledging where we are, I just want to say thank you to both of you. Kenji Yoshino, you have been my guide through constitutional law over and over again. Melissa Murray, you have joined us over and over again on The Takeaway. I hope that you will both continue to bring your voices to us. Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, and Melissa Murray, law professor at NYU and faculty director of the Birnbaum Women’s Leadership Network, thank you both for being here.

[music]

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.