Welcome to brain Stuff, a production of iHeart Radio, Hey brain Stuff. Lauren Bogelbaum here. Nearly fifty years ago, the U. S. Supreme Court made one of its most controversial rulings with its landmark decision in Roe v. Wade. The ruling declared that states criminalizing abortion violates a woman's right to due process, meaning a woman has the right to choose whether to
terminate a pregnancy with limited government restrictions. Until that point, nearly all fifty states outlawed abortion, except in cases to save a woman's life or health, or in situations such as rape, incest, or fetal anomaly. In the years since that landmark decision, state legislators have made numerous attempts to chip away at abortion rights through ballot measures and legislative moves, and together have passed more than one thousand, three hundred
restrictions on abortion. Dozens more are currently making their way through state legislatures, but the president set by Roe v. Wade and its progeny case planned Parenthood v. Casey, remain intact. However, a Mississippi case set to be reviewed this fall by the Supreme Court holds the potential to shake the very foundation upon which these cases stand deep aftershocks of which will either strengthen or reshape the future of abortion rights
in America. It began on January twenty second of nineteen seventy three, when, by a vote of seven to two, the Supreme Court legalized abortion in the US under Roe v. Wade. The Court's judgment was based on the decision that a woman's right determinate a pregnancy fell under the freedom of personal choice in family matters protected by the fourteenth Amendment
to the U. S Constitution. The case created the trimester system, which says states cannot impose any restrictions on women choosing to terminate their pregnancies during the first trimester, though it does allow some government limits in the second trimester. The states can restrict door ban abortions in the last trimester,
once the fetus becomes able to live outside the womb. However, Roe v. Wade also established that in the final trimester, a woman could obtain an abortion if doctors certify that it is necessary to save the life or health of the woman. In nineteen ninety two, the Supreme Court made
another landmark decision in Planned Parenthood v. Casey. In that case, the Court upheld a woman's constitutional right to have an abortion established by Rowe, but also applied the undue burden standard for abortion restrictions, establishing that no laws should be
too burdensome or restrictive of one's fundamental rights. There have been numerous challenges to Rowe and Casey through the years that the Supreme Court has struck down, including a ban after six weeks in North Dakota and a ban after twelve weeks in Arkansas. The Court also struck down at twenty sixteen Texas law that impeded in exibilities to perform abortions. Earlier this year, however, Texas lawmakers found a way to
get around the Supreme Court, at least for now. At midnight on September one, the nation's strictest abortion law went into effect in the state, known as the Fetal Heartbeat Bill or SP eight. The law bands abortions after six weeks of pregnancy. That is, six weeks after a person's last menstrual cycle, which is before most people know they're pregnant and far earlier than legally provided by Roe v. Wade. What makes Texas law different from others is that it's
enforceable only through private civil action. Essentially, that means that the law empowers citizens to sue abortion providers or anyone who helps another person get an abortion or even intends to assist someone after a so called fetal heartbeat has been detected, which the bill defines as cardiac activity, or the steady and repetitive contraction of the fetal heart within the gestational sec although biologically, the hard as we know it has not developed by six weeks, so it's not
really a heartbeat, but rather the just coordinating effects of a small group of cardiac cells. The person suing does not have to be connected to the person considering the abortion, or to a provider, or even live in the state of Texas. If the accuser wins their case, the person or entity being sued would have to pay the accuser or accusers at least ten thousand dollars, as well as
costs for attorney's fees, according to the law. An independent abortion provider in Texas called Whole Woman's Health then challenged the law in an emergency application to the Supreme Court on the grounds of the six week ban was unconstitutional. The Supreme Court remained mute on the subject until hours before the law went into effect, issuing an unsigned opinion consisting of a single long paragraph that stated the abortion
providers failed to make their case. Though Chief Justice John Roberts, who was appointed by Republican President George W. Bush, and left leaning Justices Stephen Bryer, Elena Kagan, and Sonya Soto Mayor dissented for the article. This episode is based on how Stuff Works. Spoke with Stephanie Lindquist, a Foundation Professor of law and political science at Arizona State University and
a recognized expert on the Supreme Court. She explained that the Texas law was able to skirt a Supreme Court review at this juncture quote because it relies on private actors to enforce the law, as opposed to state officials, and no one yet has enforced it. The courts are very reluctant to resolve cases that have not yet reached a concrete dispute. However, the U. S Department of Justice
has a different source of standing, she explains. On September nine, the Department of Justice sued Texas on behalf of US citizens on the grounds that texas Is abortion law is
a violation of federal law. Attorney General Merrick Garland said during a news conference quote the act is clearly unconstitutional under longstanding Supreme Court president The Justice Department filed the lawsuit in the Western District of Texas and seeks a permanent injunction, but the case will likely eventually make its way to the Supreme Court. When Rowe went into effect in nineteen seventy three, the majority of the Court comprised
Republican appointed justices. Even Justice Harry Blackman, who wrote the Roe v. Wade opinion, had been appointed by Republican President Richard Nixon. Since then, Linquist said, the ideological orientation toward abortion has changed. The Republican Party is now firmly entrenched as the party that opposes abortion. Before President Donald Trump took office in seventeen, he vowed to appoint justices to
the Supreme Court to overturn Roe v. Wade. Justice Anthony Kennedy's retirement in and Ruth Bader Ginsburg's death in September allowed Trump to do so with conservative picks Sprint Kavanaugh and Amy Coney Barrett. The Supreme Court now has a six to three conservative majority, with all six having taken
hostile positions against abortion at one point or another. Since Roe was decided, legislators in conservative states have pressed to impose additional restrictions on abortion, but Linquist says they now see a window of opportunity with the personnel changes at the Supreme Court quote, with the majority of justices being Catholic and most of them being appointed by Republican presidents.
The assumption is that now is the time strike while the iron is hot, legislation can finally get to the Supreme Court where Rowe could be challenged and struck down. Another such opportunity to entice the Supreme Court to revisit Roe v. Wade presented itself in Dobbs v. Jackson Women's Health Organization. This case stems from a law passed by the Mississippi legislature inan that banned abortions after the fifteenth week of pregnancy. Jackson Women's Health Organization, the only licensed
abortion provider in Mississippi, challenged the law's constitutionality. After a U. S. District Court and the U. S. District Court of Appeals for the Fifth Circuit sided with the clinic, Mississippi took the case to the Supreme Court. On May sevente the Supreme Court announced it would review the case this fall, the outcome of which could impact the president's set by both grow v. Wade and Planned Parenthood v. Casey. So let's talk about precedents. They're considered as authority for deciding
subsequent cases involving similar facts or legal issues. The concept called sterry decisive, which means let the decision stand in Latin, provides stability and predictability and law. When a new president is established or law is changed on an issue, it's known as a landmark decision. O Linquist said, president is
one of the cornerstones of our judicial system. The system of precedent provides that when courts make decisions in those decisions become law, they will remain on the books until that same court or an appellate court over rules those precedents. Judges and justices often rely on precedents to make rulings
in other cases. For example, five justices relied on the precedent set by Casey when striking down a Louisiana law that would have required doctors performing abortions to have admissions privileges at a state authorized hospital within thirty miles that's forty eight kilometers of the clinic. The Supreme Court can overturn an existing precedent with a majority vote, and this happens, perhaps surprisingly more often than the general public realizes, about
two to three times a term. Linquist says, though these cases, unlike Row, aren't ones that make the news. If Row is ultimately upended, the aftershocks would be felt immediately. Eleven states have trigger laws in place that would in stantly ban abortions. Conversely, fourteen states plus Washington, d c. Have laws in place to protect abortion access. Overturning Row would
also add strength to Texas sp eight law. Linquist says, However, if Row is upheld quote, it will have major implications for the Texas case, simply because it will reaffirm the core right to abortion prior to viability. The Supreme Court isn't likely to deliver a decision in the Mississippi case until the spring or early summer. Of today's episode is based on the article What's next for Roe v. Wade in the Courts on how stuff Works dot Com, written
by Jennifer Walker. Journey brain Stuff is production by Heart Radio in partnership with how Stuffworks dot Com and is produced by Tyler Klang. Four more podcasts my Heart Radio visit the I heart Radio app, Apple podcasts, or wherever you listen to your favorite shows.