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Melissa Harris-Perry: This is The Takeaway. I'm Melissa Harris-Perry. Thanks for being with us. I just knew it couldn't be good. Monday night, 9:00 PM Eastern time, I'd shut off the scrolling news feed that dominates my brain much of the day. With bedtime stories read and dishes done, I'd poured a glass of wine and downshifted to the, "What are they wearing at the Met Gala? What's on HETV." Check out the TikTok scroll part of my day. Then I saw it, in the trending topics, #Roe v. Wade.

Got to be honest, at first, I just looked away, but then the phone started to rumble, text, slacks, calls so I clicked the link. The headline on the political story read Supreme court has voted to overturn abortion rights, draft opinion shows. Now, the political reporting by Josh Gerstein and Alexander Ward included a link to an extensive draft opinion authored by Justice Samuel Alito back in February. It's a draft opinion that decisively reverses Roe v. Wade. Cable TV shifted to its breaking news banners. The metaverse lit up with reposts and reactions and in Washington DC protestors gathered on the steps of the Supreme Court building.

There was no question. Many were feeling that the post-Roe world had arrived a bit earlier than anticipated. The Supreme Court today confirmed the authenticity of the document but noted that, "It does not represent a decision by the court or the final position of any member on issues in the case." Chief Justice John Roberts had quoted "to the extent this betrayal of the confidence of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way. If the final decision in the case reflects this draft opinion, it would reverse nearly five decades of a recognized right to seek an abortion. Reversals of this kind are rare in the Supreme court, which is meant to operate by the principle of stare decisis or let the decision stand."

Melissa Murray is a professor of law at NYU School of Law faculty director of the Birnbaum Women's Leadership Network and co-host of the podcast Strict Scrutiny. Professor Murray, welcome back to The Takeaway.

Melissa Murray: Thanks so much for having me, Melissa.

Melissa Harris-Perry: All right, first and foremost, do you want to walk me back from the edge of panic here?

Melissa Murray: I'm afraid I am unable to walk you back from the edge of panic because I too am on the precipice.

Melissa Harris-Perry: Okay. Let me just understand what it is that I am looking at here. What is a draft opinion?

Melissa Murray: Generally after oral arguments in the case, the court will retreat to what's known as conference where the justices will go around and basically cast their vote for how they would like the case to be decided. Then depending on what the majority is if the chief is in the majority, he has the prerogative of assigning the opinion, and he can either assign it to himself or assign it to some other justice. Generally, you get one opinion per sitting.

If the chief justice is not in the majority, then it falls to the most senior justice in the majority. In this case, it looks like the most senior justice in the majority was Justice Thomas who appears to have assigned the draft opinion to Justice Alito. Then once the votes are taken, once the opinion is assigned, the justices retreat to their chambers with their clerks to work on their opinions, whether it's the majority opinion or if necessary dissents. As the draft majority opinion takes shape there may even be concurrences.

What we have here appears to be a draft opinion that is dated from February that was written by Justice Alito. It not only upholds the Mississippi 15-week abortion ban, it also the quite extraordinary step of overruling roughly 49 years' worth of precedent by overruling Roe v. Wade and Planned Parenthood v. Casey, the two decisions that recognize and reaffirm the right to choose an abortion.

Melissa Harris-Perry: All right, you're talking about something that was presumably written in February. I need to understand and why it is that this document is available, how to get out.

Melissa Murray: This is I think the million-dollar question and the answer to this question I think tells us quite a lot about the court and its internal deliberations at this moment. As a general matter, the court operates in a kind of code of omertà, which is to say that no dishes about how the deliberations are going. You never see leaked opinions or if you do-- I mean, I've never seen a leaked opinion in my lifetime. All of this is highly, highly unorthodox.

Melissa Harris-Perry: Melissa, what does this mean for the court's position on stare decisis?

Melissa Murray: Again, this is a court that I think has for a very long time taken a more elastic view of stare decisis. Most people are looking at the hot-button issues like abortion, but there have been a number of places where this court has dispatched with past precedents in fairly short order, mostly by incrementally chipping away at them and then ultimately eviscerating them the fourth or fifth time around. One example of this would be their jurisprudence on public unions. This isn't a court that necessarily has a great record on stare decisis, but this draft opinion is really something else, really even more extreme than what we have seen. It very clearly states that this decision Roe v. Wade was egregiously wrong and it was wrong when it was decided. It compares Roe v. Wade to Plessy v. Ferguson, the 1896 decision that blessed separate but equal and was ultimately overruled in 1954, and Brown v. Board of Education.

It makes clear that they are following the rules for departing from stare decisis, or at least they say they are. They go through the many factors that the court has traditionally outlined that justices have to consider before making the drastic step of breaking with a past precedent. They run through all of them and basically say, "Yes, checks all boxes, Roe v. Wade is overruled."

They covered their bases, but they've done this before. I'm not surprised at this sort of casual approach to stare decisis. The one thing that does surprise me is that they took the time to show their work.

Melissa Harris-Perry: It may be that the Twitterverse that was responding last night was not the audience at all.

Melissa Murray: No, it's never the Twitterverse. They don't care about us. It's always internal. I think here, this was a threat, a warning to a colleague who perhaps is not staying in line.

Melissa Harris-Perry: Does the leak of this draft suggest that there is now more or less room for the kind of fluidity and mobility that we've seen in other important keystone cases?

Melissa Murray: I don't know. I think that's what we're going to have to be attuned for as we go forward. It could be the case that public outcry about this is so fast and furious that it only strengthens the resolve of any justice who had some misgivings about the absolutism of this draft opinion, or it could be the case that releasing it early could just prompt the court to issue it as the opinion. We'll just let the dissents come in later, which certainly could happen.

It's unorthodox but it's certainly a possibility or alternatively, it simply anesthetizes or normalizes the ultimate outcome for the public. "This is going to be a hardcore, hard-line, absolutist opinion. Now you know and you have two months to get used to it." It could create more plan the joints for more compromise, a more moderate and modulated opinion or it could really strengthen the resolve of the hardcore conservatives who for a very long time have wanted to see Roe decisively and unequivocally eviscerated.

Melissa Harris-Perry: Certainly the evisceration of Roe is an important enough stake all by itself, but what else is at stake here?

Melissa Murray: There are some tantalizing bits in this opinion that I think speak to the landscape beyond abortion. One of the things this draft majority opinion does is try to distinguish abortion from other issues I think in an attempt to cabinet, but sometimes it gives up the ghost and says the quiet part out loud. There's this really interesting piece where the court notes that legislatures have broad authority to restrict abortion. More importantly, reviewing courts have very little authority to second guess the judgments of the legislatures.

Here's a quote, "Even on issues of substantial social significance and moral significance." That to me seems to speak beyond the question of abortion and seems to really be about some of these other issues that are rooted in the right to privacy just as the right to an abortion is. I'm thinking specifically of the right to engage in sexual relationships with a person of your choice, which was upheld in a 2003 decision called Lawrence v. Texas, or 2015 Obergefell v. Hodges which legalized same-sex marriage throughout this country. Contraception might also be on the table.

I think there are a lot of other rights that are imbricated with the right to abortion and the right to privacy that undergirds the right to an abortion. The court did not necessarily explicitly name them, although they are certainly mentioned throughout this opinion in lots of different contexts. The court never said anything about explicitly overruling them, but there's one little detail about how courts cannot second guess legislative judgments on these issues of social significance and moral significance, I think spoke to the world beyond Roe v. Wade.

Melissa Harris-Perry: What does this tell us about the future of the Supreme Court?

Melissa Murray: I think that is actually the most interesting aspect of this. This is a court that we've already seen this year take to the Huskins to disclaim charges of partisanship. This is already a very ideologically fractured court to six to three conservative supermajority, but they don't want to be understood as partisan or ideological yet there is clearly fracture and disruption even within the court itself, and perhaps even within the various blocks of the court.

We have a new justice coming in, she does very little to disrupt the ideological tilt of the court. It seems like there is some perhaps dissent even among the conservatives, and I think that's the thing to look at going forward. We haven't seen anything like this in modern Supreme Court history, an actual draft opinion being leaked to a news outlet in advance of it being released to the public as an official opinion. That speaks volumes about where we are and how much this Court I think is really in the throes of a political maelstrom. Not necessarily that the court is politicized, but that the court is now understood by both the public and perhaps also by its members as being a part of the political milieu.

Melissa Harris-Perry: Melissa Murray is a professor of law at NYU School of Law and faculty director of the Birnbaum Women's Leadership Network. Thank you for joining us and promise you'll come back when we've got a verified decision.

Melissa Murray: Always Melissa, thanks for having me. [music]

Melissa Harris-Perry: With me now is Dr. Ghazaleh Moayedi. Dr. Moayedi is an abortion provider and founder of Pegasus Health Justice Center. Welcome back to The Takeaway.

Ghazaleh Moayedi: Thanks for having me, Melissa. I wish it was under different circumstances.

Melissa Harris-Perry: I will say, I went immediately to your social media feed last night and I appreciated your initial tweet, which was, "What the hell am I reading?" Can you say more about when you first heard about this draft opinion?

Ghazaleh Moayedi: Yes, I saw it on Twitter, just like everybody else. Certainly wasn't expecting to hear an opinion at all at night. I think all of us that have been watching this case have been watching for the decisions to drop in the morning like they normally do, so sigh of relief at night that it wasn't the day we had to hear. Definitely very unexpected and just unprecedented to see a Supreme Court decision leaked like this.

Melissa Harris-Perry: Okay, let's talk a bit about less on the constitutional law piece and more a bit on the lived experience piece here. In some ways, if this opinion were to become the courts' official opinion, we're looking at a state's rights perspective, a patchwork question, and you're already living with many of the realities of what that state restriction patchwork looks like. Can you remind our community what those experiences have been like thus far?

Ghazaleh Moayedi: Yes, before SB8 went into effect in Texas in September, I would have patients who would routinely drive 200 miles one way to receive basic health care. Over the past eight months, now I see people from over 600 miles away routinely. Once this decision is final, that distance is going to increase to 800, 900 plus miles one way just to get basic health care. The patchwork system is going to be popping up across the country, what we've been experiencing here in Texas, and very soon in Oklahoma is going to be the reality for a large part of this country.

Melissa Harris-Perry: For abortion providers who certainly were not expecting even a draft opinion last night, but certainly are watching for an official opinion in the coming months, what are some of the legal and personal issues, matters that abortion providers are needing to get in place at this moment? What are the questions you and your colleagues are asking of yourselves?

Ghazaleh Moayedi: Each provider in each community is having to evaluate what their state laws are going to be. Again, this is going to be just a patchwork system. In Texas, once this decision comes down, if it remains the same decision that we're seeing, we have a trigger ban that will go into effect in 30 days, that means all abortion here will be illegal. That will be different from state to state and providers-- I've had colleagues move out of the state already in preparation. My family and I are debating on leaving but really, my biggest fear at this point on top of everything else is the brain drain that will happen in our communities.

Our communities deserve the expert care that abortion providers have to offer. The thought of losing that skill at the community level is incredibly disheartening and unjust. Each provider, staff member, nurses, physicians are considering what their personal risks are, thinking about what the law will be, is it criminalization? Is it a fine? Speaking with their families, their communities and deciding individually for themselves what's best.

Abortion providers, we come through, we have always been here for folks, it's May right now, this is thunderstorm season in Texas. We're used to service disruptions in this time of year. We do everything we can to make sure that people get the care they need.

Melissa Harris-Perry: There were some providers last night who were sending out across social media advice, things like for example, making sure that one has abortion pills before one might even become pregnant. Are those the realities that ordinary Americans will be facing?

Ghazaleh Moayedi: Yes, very much so. I think it's important for listeners to understand that for right now, abortion is still legal in the United States. For anyone that has appointments today, or tomorrow still go, we're going to continue to take care of you. The other important thing for people to understand is that self-managed abortion with abortion pills like mifepristone and misoprostol is safe, it's effective, and those pills can be obtained from online sources.

Self-managed abortion is expressly illegal in about three states in this country. Although we know that as abortion restrictions continue, the criminalization of all pregnancy outcomes will also increase. Certainly, self-sorting abortion pills prior to any laws are our one method of community protection and community care.

Melissa Harris-Perry: Do you think the American public is prepared to see mass arrests and incarcerations of physicians?

Ghazaleh Moayedi: No, absolutely not. I don't know. [laughs] I don't know. I say no, initially, but what I have seen in the past two years with COVID, and how science, logic, evidence has been treated, there is a dark, cynical part of me that fears that science and compassionate thought and empathy for our neighbors might not be the trend of 2022.

Melissa Harris-Perry: Dr. Ghazaleh Moayedi, abortion provider, founder of Pegasus Health Justice Centre, thank you as always for joining us.

Ghazaleh Moayedi: Thank you for having me.

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