Supreme Court Reverses Roe v. Wade

had stood for nearly a half century. The impact promises to be transformational, likely making abortion illegal and half the country from a court that was divided down ideological lines. My guest is Katherine Frankie, a professor at Columbia Law School and the director of the Center for Gender and Sexuality Law. Broadly speaking, Catherine, what does this decision tell you? Well? Would it tells me? Is that my mother had greater rights to her own liberty and equality than my daughter will.

Access to abortion, access to the full range of reproductive health care is fundamental to the idea of women's citizenship, and for the Court to withdraw that right, and to do it in such a snarky fashion, feels like a punch in the face I think for women across this country as well as other people who get pregnant, you said snarky fashion. So that leads to my next question, which is, can you explain the reasoning that Justice Alito

used to get to reversing Roe v. Wade. Well, he takes the position the row was wrongly decided in nineteen seventy three, that it was a weekly decided decision, poorly reasoned, and that there's nothing that stands in the way of

the Court now over ruling it. And he does so by turning to thirteenth century fourteenth century legal treatises to show the abortion was something that was considered criminal in England that many years ago, and almost all of the citations the Justice League, though uses are from old white men who don't have a stake, or at least don't have the same stake in this issue that we do today.

So it really it not only freezes the Constitution in a pre nineteen seventies place, it actually frees the Constitution in the thirteenth century, which I just think is appalling, appalling. On Thursday, the Supreme Court went back to the seventeen hundreds and eighteen hundreds to declare that the Second Amendment allows citizens to carry handguns in public. Is this the revenge of the textualists? Well, some of these judges are

die hard textualists and some of them are opportunists. And so when history helps you for the arguments you're going to make, they will turn to it. You know, in this case, what we learned in a twenty four hour period is that states have no power and no constitutional right to regulate guns. And at the same time, states have the absolute power and right to regulate women's bodies. And it makes you question what kind of citizens women are in this country after those two decisions. Is the

majority opinion just playing wrong? Is it unprincipled? How would you characterize it? Well, I think the majority is ideological. Most of these members of the majority were appointed to the Court precisely because they took this position on abortion. There's no mistaking that fact. And what they do is they cherry pick history. They cherry pick Supreme Court decisions from the past to say that Row was wrongly decided.

But as the long distense in this case shows, from three members of the court, there are parallel histories with competing narratives about what it means to be free, what privacy might mean in this country, and what equality might mean. So it's not a surprise that we have a majority of the Court now that disfavored abortion as a constitutional right.

What I find most shocking is the way in which they did it, And I think Chief Justice Roberts's a concurrence really brings that home by describing Justice Alito's opinion as a jolt to the legal system, the descent in which the three liberal Johnice is united says that no one should be confident that this majority is done with its work, and Justice Clarence Thomas and his concurrence says, you know, we should reconsider all of the courts substantive

due process precedents like same sex marriage and contraception. Justice Alito, in his majority opinion says, look, we're only deciding the abortion case today. All those other matters of sex and sexuality, whether it's to write to contraception or the decriminalization of sodomy or same sex marriage rights, those are not implicated

in this decision. But to be honest, the way in which Justice Alito's opinion kicks the legs out from the Constitution that held up rovers his weight, it's hard to imagine our all those other rights have anything left to stand on. There's a lot of talk about what will happen next, and one thing that's that people are concerned about is that read states will try to prosecute in some way women who cross state lines. Justice kavan on his concurrence says that's not going to happen. I mean,

can we trust his opinion there? Well, he's no expert in state prosecutions. I think he's completely out of order and saying that won't happen because the Supreme Court's decision is actually an invitation to local prosecutors to enforce the criminal laws in exactly that way. So we'll have to

wait and see. But um, I there are many many people who feel very strongly about this issue as we know, uh, and then do feel that abortion is murder, and why wouldn't they prosecute, um, those laws just as robustly as they prosecute the murderer of already born people. Is this the first time the Court has taken away a constitutional right in modern history? Well know, the Court does reverse

itself from time to time. Their both to do so, and Justice Alito gives us a very long footnote where he goes through the other places where the Court has reversed itself. But this is the first time that we've seen something is such a fundamental right central to half the population's idea of being full citizens obliterated in such a crude and I would say cruel way. President Biden says it's up to Congress now to pass a law protecting the right to abortion. We're unlikely to see that

anytime soon. Is there anything else that can be done at this point? Vote right? This issue now is a state by state issue. We have to show up in the at the polls. We have to get different people in our state legislatures and protect abortion rights as contraceptive rights and the whole range of rights having to do with reproductive healthcare, and in the ballot box, because that's now where this issue has been kicked by the Supreme

Court is into the state legis Slaters, Thanks Catherine. That's Professor Catherine Frankie of Columbia Law School coming up next, the reprecautions of this decision. This is Bloomberg. Here's Justice Samuel Alito at his Supreme Court confirmation hearings in two thousand six versus weight. It is an important precedent of the Supreme Court. It was decided in three so it's

been on the books for a long time. It has been challenged on a number of occasions, and I think that when a decision is challenged and it is reaffirmed, that strengthens its value as starry decisive for at least two reasons. First of all, the more often a decision is reaffirmed, the more people tend to rely on it. And secondly, I think starry decisive reflects the view that there is wisdom embedded in decisions that have been made

by prior justices. But on Friday, josephs Aledo refused to follow that precedent I prior justices, which has been relied on by women for nearly half a century, and wrote the majority opinion saying that Roe v. Wade was egregiously wrong from the day it was decided and there is no constitutional right to abortion. Joining me is Jennie Schanzano, Bloomberg political contributor and a professor I own a college. Genie put this decision in the context of Supreme Court history.

Will this day stand out? It will stand out, you know. I think the word that keeps coming to my mind. Isn't momentous? That is the one word that captures this. I have been racking my brain just as an example, to try to come up with a time at which the Supreme Court had a right that they then took away. You look throughout American history, and maybe other people can identify one. I cannot. And so if you think about, you know, women for half a century enjoying this right

and that it's been can await? I think momentous is the one word to put this in perspective. And you know, I was struck, just as an aside by the fact that in the majority decision, Alito actually compares Row to Plessy, And you know that really struck me. When he's trying to make the case that we've overturned over ruled precedent, he uses Plessy Federal times as an example of that, and that to me is astonishing and will be as

we look back on this decision. Speaking about precedent, and of course the Court overrules precedent from time to time, but does the Court this week say, well, we don't care about precedent. They essentially say, you know, we're not going to be held hostage by precedent, and that again is a quite astonishing statement by the majority in this court.

And you know, in the majority decision, he does go through in some real grave detail the fact that the Court has overruled precedents in the past, and he goes through this litany and this idea they're not going to be helped hostage by precedents. But again, it's important distress as I'm reading through this the precedent that they're talking about that they've overruled in the past. You don't see any in which a right was granted and then they took it away. And that's what I think is really

astonishing about what we're living through at this point. I know that anti abortion activists have been working since Roe v. Wade was decided to get it reversed, but it still seems fast to see a constitutional right wiped out. Sitting here today, it does feel stunning lee fast. But if we look back, this has been almost half a century

long quest by members of the Republican Party. But not just the Republican Party, you also Democrats, of course, who are pro life, and you know row be Wade came out in three and since that moment, you have a real committed group of people in this country who have done everything they can, including voting on this issue, focusing on getting the judges and justices in place who would overturn. Eventually wrote So it really has been a decades long

quest that has finally come to fruition. And you know, one thing I think it's important to underscore is that this is always the danger. When a right is protected in the court, then the membership of the court matters an awful lot. And so I am of the opinion that if you want to protect the right, you best do it at the ballot box, because when you do it in the courts, it means these confirmation hearings and one or two justices on the court can take that

right away. And that's what we've you know, been seeing over the last several years. The fear of these confirmation processes for these three Trump pointees have almost exclusively been about row And of course it doesn't matter because they got on the court and they overruled it. This also puts a question mark in my mind about the utility of confirmation hearings because each and every one of these justices said during those hearings that row was right embedded

in the constitution. I mean, Justice Kavanaugh in particular was

very emphatic about that. Yeah, and I'm so glad you said that, because, you know, for so long we've looked at these confirmation processes, particularly since Robert Bourke and people have been wondering, you know, what is really the value of these And to your point, now we see, and we heard Susan Collins of Mainspace that the senators were misled both privately, we understand in individual meetings with the senators and of course publicly, you know, most of them

taking this argument that they don't have an opinion on the issue, um others taking these sort of stamps that they value precedent, they value story decisis, so they wouldn't think of overturning a long standing right. And of course

that's not at all what happened. So I think, and you know, just as in the side, we we have a president who's one of the only presidents who has also Senate, you know, the leader of the Senate Judiciary Committee, and whoever saw so many of these confirmation processes that I think we really do need to rethink the process by which we make these appointments and they are confirmed at the Senate level. UM. So I think that's something

that's going to have to happen. Um. I think it's something that should have happened already because a lot of people have thought for very long that these were you know, more show than they were substance. And of course now we come to recognize that people feel you know, completely misled um at the best, and lied to at the at the worst. Americans approval of the Supreme Court is that it's low list in modern times. What does this decision due to the legitimacy of the Court, I think

it puts it very much in question. And as somebody who you know studies the Court like you do, and and one of my favorite institutions to talk about, I am so sad about where the Court finds itself today, not just with this decision, but with the decision on guns. And the reason is is because in some ways, the Court, at least the majority, seems terribly out of touch with

what's going on in the United States. As you look at these sort of back to back decisions in the last couple of days, you know, I was looking at the descent in the gun case and they start out by talking about the number of people murdered by guns in this country in and the number is utterly astonishing. And you couple that then with the fact that the Court has said to the State of New York and other like minded states that they can't protect their citizens

this regulation on conceal and carry. It seems terribly out of touch if you think about it that way. And I think also in this decision, you know, women have enjoyed this right, people have enjoyed this right to choose for half a century. For the Court to come in and not even to just incrementally like the Chief Justice wanted, but to go to the extent of ripping that out from under, pulling the rug out from under, in other words, I think, is going to create an enormous problem for

the Court. The justices themselves have been talking about this, as you know, they've been saying the Court has become politicized. They should be very concerned about the legitimacy of the court. And that's why I liken this to a certain extent. It's probably a little bit early to say this, but you know, the two or three worst decisions in court

history dread Koramatsu, and Plessy. This could end up being among those and one of the reasons they were so traumatic, amongst other reasons, was because the court essentially lost its legitimacy in the eyes of Americans in all three of those cases, and it suffered for decades to come and

struggle to find its footing again. And I fear the Court may find itself in the same position today if we simply just look at the amount of protests going on outside the court and the threats of violence, and the frustration that people feel with a court that's terribly out of touch with the lives of so many Americans. It's great to have you on, Jennie, Thanks so much. That's Jennie Chanzano, Bloomberg political contributor and a professor at I own a College. And that's it for this edition

of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, And remember to tune in to The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg