Roe v Wade Overturned

chip away at the abortion right. To do that, they passed laws that didn't outlaw abortion altogether, but rather it made it harder to get access to an abortion, like the law passed a couple of years ago by Texas ultimately struck down by the Supreme Court, which raised the restrictions and limitations on abortion clinics and doctors to try to make it harder for women to get an abortion.

The theory of those laws was that the best strategy for the pro life movement was to get the Supreme Court to say, we're not overturning Rovuwade, We're going to chip away at the abortion right until there's not much left of it at all. Since Kavanaugh was confirmed, the strategy is one hundred and eighty degrees the other way, States like Alabama most recently have passed laws that just say no abortion at all, typically in the first handful of weeks of life, typically with no exceptions for rape

or incest. I call these Kavanaugh laws because they're aimed at the idea that the addition of Justice Kavanaugh to the Court will convince him and also Chief Justice John Roberts, just to drop an opinion that overturns Rovuwade in one fell swoop. If that's going to happen, then we need to start thinking about strategy to deal with it. To discuss strategy, history and how we got here, were joined today by Katherine Colbert. Catherine is a perfect person to

discuss these issues with us. Catherine actually argued in the Supreme Court in nineteen ninety two successfully the case of Planned Parenthood v. Casey, right at the moment when people thought that rov Wade was allowed to be overturned the last time. Since then, Catherine has been Director of the Athena Center for Leadership Studies and Professor of Leadership Studies at Barnard College, job from which she just recently stepped down, and she's here to discuss with us where things are going.

And as you'll hear, she has lots of things to say that go clear against the conventional wisdom. I imagine that Catherine was going to talk to us about the strategies that she used to convince the Supreme Court to retain the abortion right. Nope, what she's got to say is a lot more interesting and a lot more radical. Catherine, Thank you so much for joining us. Happy to be here, Catherine.

I just want to begin by asking about the last round in which we had to face challenges to the abortion right, the round in which you were working at the ACLU and ended up arguing the Planet Parenthood against Casey Case. What strategy were the opponents of abortion rights using then to try to go after the right to choose? Well,

the circumstances were very analogous. My case was decided by the Court of Appeals in November of nineteen ninety one, and just as Thomas had just been confirmed to the Supreme Court, it followed the very contentious Anita Hill hearings. So he too, like Kavanaugh, had been accused of sexual harassment. There was a huge outcry in the country about the conservative bent of the court, at least by those who

favored the right to choose abortion. You know, there were upcoming presidential elections in that case, the Clinton election in nineteen ninety two, so circumstances were very similar, and everyone believed, including myself, that with the appointment of Justice Thomas, there were five votes on the court to overturn Row, and our strategy was built on that assumption. We thought all

along we were going to lose. In fact, in the vote following oral argument, we did lose, but you didn't know that at the time because that was a secret vote.

We did not know that at the time. But the circumstances were very similar is today, although I have to say that I don't think the option of winning this time around is as likely as the small chance there was for us, because the new justices to the court are more conservative than Justice Kennedy, and I don't see anything in the history of Justice Roberts that would lead me to believe that he would switch his vote. So

we'll talk, we'll talk more about that. I mean, it is worth noting just in passing that one of those justices, Justice Kavanaught, one of the new justices. It's actually also true indirectly of Justice Coursa actually worked for Kennedy. They were law clerks for Justice Kennedy, even though I agree they're seen as more conservative. But what's fascinating to me, Catherinist to hear you say that you went to court in planned parent against casey expecting actually to lose it.

What's it like to go into oregue a case in the highest court of the land, with the expectation that you're going down. Well, our strategy was built on if we lose, what's next, And in that case, it was making sure that the public, the court of public opinion, understood what was at stake. Often these things are veiled in legal ease and things that most people don't understand. Frankly, they don't even understand what happens when a federal constitutional

right is withdrawn, because it doesn't happen that often. So the first thing we set out to do is to make sure people understood what was at stake, and that was the loss of their liberty and the loss of us and legal abortion. And the second thing was to set it up politically. At that time, we did control Congress and thought we could pass a bill that would protect women on a national level if the outcry was sufficient.

Today that's less possible, and I'm sure we will get into what strategies might work now, but I think what we were really doing was to try to make sure people understood what was going on. So one of the reasons that you had to engage in that strategy is that the law that the state of Pennsylvania had passed

actually didn't outright ban abortion under all circumstances. Right. It required an informed consent formed be signed twenty four hours before the procedure that would provide information about the fetus. There was a parental consent requirement for minors. There was a requirement that women who were about to have an abortion and who were married and notify their husband. There was some play with the definition of a medical emergency.

These were, in retrospect, compared to where we are today, pretty subtle attempts to constrain and limit the right to abortion. So you had to explain to people that even those things would amount seriously chipping away at the right to choose right. And let me make sure that your listeners understand, from my point of view, it makes very little difference whether it's is a statutory provision like those in Pennsylvania

or a total ban like that past in Alabama. In both instances, the Supreme Court has the ability to change, well lawyers call the standard of review, what kinds of deference are they going to give to the states to pass restrictive laws. Either type of law can result in the reversal of Row. So this notion that the frontal attack by Alabama kind of laws are worse is really a misnomer. It's not true. The Court can do exactly what it wants to do that undermines the ability of

women to get safe medical procedures. Whatever statute is before the court, and there are currently four cases already pending that would give them that opportunity. And let me add just one more thing, which is, at the time of Casey, there were three states that had totally banned abortion, actually more extreme than the Alabama law because they started from conception, not from the six weeks. They had no exceptions for

rape and incest. So those were pending in the courts of appeals at the time we went up in cases. So can we dive a little deeper into that, because I think from the standpoint of a pro choice advocate, I totally hear what you're saying. I understand that you know there might be no difference in some sense between a case that comes to the Supreme Court and gives the Court the chance to overturn Row when it's mildly limiting or had a medium weight limitation on the right

to choose, and an absolute band. But from the standpoint of conservatives who don't want to have a headline that says Court overturns Rov. Wade, but also want to limit the right to abortion, mightn't there be a huge difference between those kinds of laws. And let me say what I mean by that. So imagine that you are Chief Justice John Roberts. You know, we don't know whether you would vote directly to uphold a law that ban abortion

from conception or from six weeks. But in general, we do know that Chief Justice Roberts prefers, in lots of areas of jurisprudence to chip away at precedence, to weaken old precedents, make them increasingly irrelevant, rather than to overturn them in one fell swoop. So if we extrapolate from Roberts's feelings with respect to lots of other liberal precedents where he likes to chip away strategy, you know, death

by a thousand cuts. Then presumably he would prefer to gradually uphold limited restrictions on the abortion right, to weaken the abortion right over time, rather than issuing an opinion that in one go generates a headline that says court overturns Roe v. Wade. So do you disagree with that, Catherine? That from his standpoint, imagining that that's his goal, that there might be a difference between the different kinds of laws that might come before the court, I don't, Actually

I don't. The issue is always a political calculus, that is, are you going to whip up the opposition? The real problem here for conservatives is that Americans believe that abortion ought to be legal in most circumstances. Some want more restrictions, but not very many more restrictions, but only about twenty

some percent think that abortion ought to be outlawed. And so when you are talking about taking away well, at one point was a fundamental constitutional right for the first time in history, it is hard to give much solace to the guy who just wants to say, let me cover up what I'm doing. In order to appease my base, but at the same time not cause too much trouble. The point is, Americans disagree with the position the Court's

going to take, and they have. More importantly, it is a violation of fundamental principles of starry decisis, which says that when Americans rely upon precedent, when precedent is reaffirmed over and over and over again, you ought to keep that precedent, even if you disagree with it or would

have decided differently the first time. So, Catherine, as an advocate, though, wouldn't your goal if you were arguing one of these cases coming before the Supreme Court now, wouldn't your goal be in a perfect world to try to appeal John Roberts and maybe even Brett kavanaughf John Roberts did it away from the position of saying we're going to overturn and towards the direction of something more in the middle.

Or do you think that that's not what pro choice advocates should be trying to do strategically, that they should just be laying it right out there for the Chief Justice and saying, go ahead and do it and then watch the backlash. Well, I think that comes down, and I'm not arguing these cases, and obviously we don't know which one is going up forward. In our case, we made the political calculation that winning that fifth vote was impossible and went forward with the idea of trying to

restore the rights legislatively. Today, I still believe that Justice Roberts is not likely to support even the Casey formulation, and that for many women in this country, liberalizing or giving states greater latitude to restrict abortion, for example, allowing regulations like what was before the Court in the Texas case a couple of years ago, effectively outlaws abortion for many many women across the nation, makes it possible to obtain without having to travel to a state that has

greater protections. You know, everybody wants to approach us from the point of view of the justices. I want to approach it from the point of view of the women who are affected by these laws. For them, whether the Court expands Casey and permits greater regulation or whether there's an outright ban, there's very little difference. And if you're young, and if you're poor, and if you have no access to transportation to different states, or if you're living in

an abusive relationship that really matters much. That means we need to start thinking about other ways to protect women's liberties. I hear you loud and clear. I'm glad you brought up the case from a couple of years ago, a whole Women's health against hellerstat which, just to remind listeners, came out of Texas and involved a state law that was designed effectively to make it much much harder for

abortion providers actually to function in state. The idea was to impose restrictions and requirements on clinics and physicians who performed abortions that would be effectively the same as putting them out of business in order to make it much harder for abortion to be obtained while simultaneously winning over

the middle of the court. And in that instance, Justice Kennedy, who was still on the Court at that time, wasn't buying it, and he said that those laws violated the standard that he set up in plan pared against Casey, the undue burden standard. He was willing to join an opinion that said that they impose an undue burden on women.

Chief Justice Roberts, on the other hand, was in the descent, and he thought without saying explicitly that he thought that Casey should be overturned, that Casey could be applied to allow these restrictions. That's where I and I think others are getting the idea that Roberts's preferred strategy on the other side would be a slow chipping away at the abortion right rather than a one fell swoop overturning. But I hear you saying, Catherine that you're not that interested

in strategizing for winning in the Supreme Court. Your view is abortion rights are going to lose in the Supreme Court and we have to think about what to do after that happens. I am I getting that clear. I want to make sure I get it clear. That's that's clear. That is whether you're chipping away or you're totally overruling role the effect for women's access to abortion, and let me just say also contraception, because that's next down the

line is going to be seriously in jeopardy. And the only thing in my mind that matters is how are women actually affected who need valid and safe medical procedures. And that's what we're talking about, and that's what we need to focus on. So I want to I want to turn to that in just a second. But I just want to say first, to be completely honest, my mind is kind of blown by your answer, because here you argued the case in which theream Court you know,

famously took a middle ground. They basically said, you know, we're not that crazy about Roe v. Wade, but it's been in place at the time for roughly twenty years.

We're going to uphold it on the principle of sterry decisis the idea that we don't want to overturn a well established precedent, and Justice Kennedy famously said that liberty finds no refuge and a jurisprudence of doubt, by which is a little hard to know what he meant by that, but it sounds like what he means is we can't be constantly taking away rights that have traditionally been granted.

So I imagined, wrongly that your view would be that it would be good to win some middle ground holding pattern, and maybe that would buy us, you know, enough time for the public to be able to block laws like those are being passed in Alabama and elsewhere. But I'm hearing, I'm hearing the opposite from you, and I'm also hearing the opposite of how you were thinking when you went into when you went into Casey, and that's that's great.

I'm learning a huge amount from this conversation, So thank you to tell me what you think advocates for abortion rights then should be doing. What strategy would you like to see followed, both in the court in cases where in your review a pro choice people are going to lose, and also more broadly, in the society. So first, in the court, clearly, whatever cases are headed there, it sure would be nice to delay them as long as possible. Again on the theory, if you're going to lose, let's

lose later. But second, I think in the courts, we want to look to state courts, particularly state supreme courts, to establish independent state constitutional rights to abortion and reproductive freedom. A number of states have done that in the context

of medicaid funding for abortion. For example, the Kansas Supreme Court just a couple of weeks ago issued an opinion establishing an independent right, and the value of that is it permits state courts to then strike down as unconstitutional under the standards that are independent to the states, any restrictive laws that are passed at the state level. So

I hear you, and it makes perfect sense. Isn't that hopeless? Though, in the very states that are passing the most restrictive anti abortion laws, the Alabama's, the Georgia's, the Iowas I mean, isn't it precisely those states where state supreme courts, and in some cases I should add, those state supreme courts are elected. The Alabama state Supreme Court is actually elected. Let me talk about strategies that seem unlikely to work.

Isn't it the case that almost all states where a legislative majority would enact a ban on abortion are also the same states where the state supreme court would say it's constitutional to do so. Yeah, some, but not all. So, for example, Pennsylvania has this democratically controlled state Supreme Court. I don't know where they're going to come down on abortion, but their legislature is very red and they just passed a ban on abortions if you needed it in cases

of down syndrome. So the answer is yes and no. States very Alaska, for example, very libertarian state. Their supreme court reflects that libertarian notion. Look, and I'm talking about a ten year strategy here. We're talking about how do you preserve rights in the short term in the long term, and obviously state constitutions are a longer term strategy. I've always believed you need to establish a parallel and independent

right at the state level. So it might work in purple states, in other words, where the legislature is read but the court is bluish well, and also in states where the Supreme Court is elected and the majority of the citizens believe in the right to choose. Just because the legislature is read doesn't mean the citizens rate is. And it's a lot easier to elect two or three or four justices to a Supreme Court than an entire legislature,

So you know, there's plenty of opportunities there. So go on then to talk about the other strategies that you are alluding to earlier. So on the legislative level, obviously, the preferred route is to have a federal constitutional right or a federal l slate of right, so that women have the same rights in every state. You know, your ability to make reproductive decisions shouldn't depend on where you live.

To do that, you would need to take back control of the Senate with a pro choice majority and pro choice leadership, So that would probably mean turning it blue, and you would need a pro choice president who could sign it into law. Again, a possibility in twenty twenty, less likely than it has been in some years, but certainly a possibility in twenty twenty. But the other route, which I am firmly of the view that we need to pursue, is that state legislatures are often controlled by

very few people. A few flips won't make a difference in terms of control. A pro choice governor who's willing to veto a bad bill is really key. So we need to look politically at the states. I would start with electing pro choice governors. My preferences women governors who understand these issues, but certainly any governor who's pro choice is phenomenal. And then to take control of at least one chamber of a state legislature in order to block

bad laws. You know, in the days after Webster was decided and before Casey, I was the aclused person who went out to the states and developed the expertise and killing bad bills. And there's all kinds of ways you

can do that. I mean, I was in forty four states in those years, in a two year period where there were over eight hundred restrictions introduced, and there's lots and lots of ways to kill bad bills, but the easiest and best is to either have leadership of one chamber or a governor who can veto And frankly, we ought to be focusing it on it strategically geographically because now most blue states are on the coasts, and we got to give women in the middle of the country

some options or at home. May I try to dig a little deeper on your proposal for a federal law, obviously requiring a pro choice majority in both houses and a pro choice president that would protect abortion rights for women.

I have sort of two questions about that. The first is, do you think that the Democrats should have passed such a law during those handful of brief moments over the last fifty years where they had that There was a brief moment in the content administration where that existed and another brief moment in the Obama administration where that existed. Did the Democrats miss an opportunity thinking well, the Constitution now protect abortion rights, so we don't need a federal law.

Should they have tried to pass a law? Then? No, because it would have undercut the constitutional right which we believed to exist. So it's not a story of missopportunity. So let me ask a follow up question. Then, imagine the Congress did pass such a law. And I know, I don't want to get too into the constitutional law weeds, since you argue constitutional cases and I teach constitutional law for a living, and it would be easy for us

to go to into the weeds. But I'm wondering, wouldn't such a bill be vulnerable to the idea that the Supreme Court could strike it down. A conservative court could strike it down by saying it was an overreach and that the federal government didn't have the capacity to block the states from passing laws that restrict women's right to abortion. Even a conservative court, I think would be going very far to do that. I just don't see them doing that.

I mean, they'd be going pretty far to strike down Roe v. Wade, Right, I mean, we're our scenario is a precisely scenario where they've gone all the way to, as you said, eliminating a constitutional right. It's one of the first times the Court would ever have done that. Right, But at the same time, that is their sweet spot, that is the role of the Supreme Court is to

interpret the Federal Constitution. Well, I don't see any constitutional basis for saying that a federal statute protective of women's rights was undermining the ability of states to control in this area. That the whole nature of federalism it has allows federal statutory protection. I just don't sing like a

ninth Amendment. What I had in mind was the Violence Against Women Act, which you know, passed by by actually a bipartisan majority and signed into law, which included, among other things, provisions allowing suits by women who had been subject to gender motivated violence. And the Supreme Court struck that law down, that part of the law down on the ground that Congress had had overreached itself. So that

was the sort of thing I had in mind. But that was a commerce clause argument, that is, there was no authority to pass the federal law. I think that there's multiple a locus of authority to pass a federal statute. Both the Fourteenth Amendment, Section nine, the commerce clause. I mean, women are going from state to state, doctors are going from state to state. Commerce is moving from state. I

just don't see it being comparable. And then the other The other question that I had about that was, you know, one of the things that pro life advocates have sometimes thought, it's kind of there, it goes even beyond overturning Roe v. Wade. It's on there, you know, it's on their bucket list. Would be for the Supreme Court actually to say that under the fourteen Amendment of the Constitution, which says the government can't deprive persons of life, liberty, or property, that

fetuses our persons. And if the Court were to say that a fetus was a person, then it would be impossible for states. I mean, that would take as much further. That would mean not only that we'd have the opportunity for some states to have laws prohibiting abortion and other states to permit it, that would actually effectively outlaw a worship at the national level. Yeah, I just don't see even this cord going that far for lots of very practical reasons. Because once you say a fetis is a person,

does that mean they get a Social Security card? Does that mean they you know, have rights in car accidents and murder charges and all. I mean, there's just so many implications of creating personhood and very little support for it, even you know, even in Row, the court was very clear that wasn't a place they were going. And I haven't seen any court, even at the state level, go that far, or any district court go that far. It's

just I just don't see it happening. Although that might be a strategic concern if if there was a movement to past federal legislation, that there might be some worry that it would be an invitation to the court to do that right, and in fact, they have done that in past years. For example, there was a fetal personhood amendment to the Constitution introduced in Congress repeatedly for probably twenty years. Yeah, but it didn't seem to go anywhere.

So going back to the state legislatures, which is where you see the battle, the battle building, it sounds to me, and correct me if I'm wrong here, what you're picturing is kind of ongoing long range guerrilla warfare at the state level between pro choice and pro life advocates, with their pro life advocates constantly trying to get legislatures to pass laws and pro choice advocates going out to those states,

just as you did to forty four states. You said, you know, using various political techniques to try to kill bad bills and to try to elect more liberal representatives

or governors. And in that environment, it seems as though there is the real risk that in a bunch of states, especially as you point out states in the middle of the country, there will be women who can't afford to travel to other states to have an abortion, who are really going to face substantial constraints on their right to choose.

Is that your you know, all things being equal, prediction of where we're headed, and if that sounds like what you're saying, and I want to be clear, if that is where you're sit away saying, yeah, Unfortunately, look at

elections really matter. A speech for medical students for choice two weeks before the twenty sixteen election, and with the election of Hillary Clinton, we would have been absolutely assured that there wasn't the next justice of the Supreme Court would have been pro choice and none of this would have mattered. But yes, elections matter, and they they're going to matter for women in a whole host of ways. Abortions kind of the leading the tip of the spear.

But don't think that the twenty five men in Alabama who passed this bill aren't coming after women in a whole variety of ways, whether it be equal pay, or whether it be sexual harassment, or whether it be all kinds of protections that we have understood to be constitutionally protected at the federal level. So I in my view, yes, it is trench warfare, but pro choice Americans need to understand that if they're going to preserve their liberties, we got to work hard at it, and we've got to

do more than protest in the street. We've got to go out and of us and send postcards and make phone calls and do all of the hard work that most people don't love to do. But the anti choice movement has been very good at may I ask you about following up on that idea that the pro lifers have been very successful what they do. What sounds like it might be maybe I'm wrong, but a kind of tension between two different things that I hear you're saying. So on the one hand, I hear you saying that

this is a long term battle. It's trench warfare or guerrilla warfare in some kind of long run, painful warfare in which in your read right now, the pro choice side is losing and in your prediction, is about to lose really the crown jewel of not only abortion rights, but arguably of women's rights in the United States, namely the holding of Roe v. Wade. On the other hand, you pointed out earlier that only maybe a quarter of Americans actually will tell polsters that they think there should

be an abortion right under any circumstances. So if those things are both true, why are they both true? Why is it if it's a relatively small number of Americans who support the significant restriction of abortion rights, that the pro choice forces are losing as badly as you've described them as losing. Well, for two reasons. It's called political power.

It's called Senator McConnell, who blocked President Obama's appointment to the Court and his push for anti choice judges and taking over the crown jewel, which was the Supreme Court. And that's power. The Republicans have never been afraid to exercise power, and Democrats have been more reluctant to get into that brawl. But the other thing, and I think this is important for people to understand, is that legislatures don't often who don't always reflect the views of their constituents.

Unless they're forced to do so. And it is instructive to me to see Republicans now get nervous when they understand that Roe is in jeopardy, that oh, all of a sudden, they're going to have to be accountable for their vote, because up until now they've kind of coasted without having to either take a position or to take a position that wasn't really thought seriously as being significant.

Let me just say one other thing. In the days after Casey was handed down, the first maybe five years, there was very little activity at the state level restricting abortion. There was some there was passage of laws similar to the Pennsylvania law, but you didn't see these huge efforts that you're seeing now. And the change started to happen in twenty ten following the census, when there was reapportionment, redistricting, a lot of jaiman during a lot of restriction on

voting rights. You began to see more and more state legislature's gubernatorial seats taken over by the Republicans and therefore an uptick in the anti choice activity. To me, what's really critical is that we understand that voting rights is now a women's issue, that if we're gonna protect women's rights. We need to have fair districts, We need to have fair voting rules, We need to count every vote. Until those things are fixed, minorities are able to exert more

power and control than is particularly fair. I really want to emphasize just how profound the thing you just said was, at least to me. You said legislatures do not necessarily reflect the views of their constituents. I mean, I can't think of really a more devastating critique of democracy itself, you know. I mean, the whole theory of democracy is supposed to be that we elect representatives and that they

represent the views that we hold. And you know, if they're not representing the views that we hold, then democracy is failing in some pretty pretty fundamental sense. I mean, do you do you share that the pessimism that sounds to me is implicit in that observation? You know, I actually feel very optimistic that women are getting it. Let me give you an example. Vote Run Lead, an organization in New York was training women to run for political office.

Last week, they had fourteen hundred women in twenty states coming out to learn how to run for political office. That says to me, there's a tsunami going on among women who are saying this ain't fair. We got to get involved, we've got to fix it. And that's a really good sign. But that dichotomy between who has power and who could earn power at some later date is kind of where we're at right now. And all I can do is be optimistic that we will work really

hard to make a difference here. So your optimism, if I summing it up correctly, is it begins with the

pessimism that you think rov Wade is done for. But then you're optimistically expecting a major mobilization of women across the country to run for office and win and change laws across the country, so that in the end, the final outcome, though of course the loss of roev Wade would be a terrible thing for women's rights, might actually be greater for the for the greater good, because it will mobilize so many people to go out and vote.

Is that the Is that a fair characterization? Well, I'm hoping at least we could get back to where we were when we had federal constitutional protection, and that may be a long time. You know, if you don't have some optimism that you can make a difference, it's hardly worth joining the fight. So you know, I try to remain as optimistic spas well. It's inspiring to hear you maintaining optimism even through a veil of what strikes me

as extremely powerful pessimism. It's a you have a story of the worst of times maybe leading to the best of times. So I'm very grateful to you for sharing that vision with us. It's fascinating and I can't say it's purely inspiring, because the worst of time's part is pretty depressing, but at least there's at least there's a silver lining that you're that you're describing in the in the looming storm. Thank you so much for reading with us. Thanks,

it's pleasure to be here. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Gene Coott, with engineering by Jason Gambrell and Jason Rostkowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis Gera special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. This is deep background