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It was a historic twist in an already historic case: A draft opinion of a Supreme Court decision overturning two landmark rulings — Roe v. Wade and Planned Parenthood v. Casey — leaked to Politico, which published the 98-page document on Monday night. Chief Justice John Roberts said that the draft opinion was authentic but that “it does not represent a decision by the court or the final position of any member on the issues in the case.”
Even with that caveat, it seems to be a sign of where things are headed — the end of abortion rights as a constitutional right in America.
On today’s episode of “The Argument,” Jane Coaston is joined by the Times Opinion columnist Michelle Goldberg and editorial board member Jesse Wegman to discuss the implications of the draft opinion and the future of abortion rights in America.
What is your take on the Roe v. Wade draft leak? We want to hear from you. Share your thoughts in the comments on this page once you’ve listened to the episode.
[You can listen to this episode of “The Argument” on Apple, Spotify or Google or wherever you get your podcasts.]
An edited transcript of the discussion, recorded Tuesday, follows:
Jane Coaston: So we’re going to talk a little bit about how Politico even got hold of this draft, but I want to talk about the substance of the opinion first. Jesse, what does this draft say?
Jesse Wegman: Well, the opinion itself strikes down Roe v. Wade and Planned Parenthood v. Casey, the 1992 opinion that pretty significantly cut back on the right to an abortion, but preserved the fundamental freedom to choose to terminate a pregnancy. It strikes them down in really quite sweeping and certain terms because, among other things, as Justice Samuel Alito writes in the draft, there is no right to abortion in the Constitution.
In fact, the Constitution says nothing about abortion at all. As he put it, there is no longstanding right to have an abortion in this country until we got to the early 1970s with the ruling in Roe in the first place.
So it’s about as worst-case-scenario as you could get for those of us who believe in protecting a woman’s right to choose what happens inside her own body — but it’s not unexpected.
Jane Coaston: There was talk that maybe the court would set a standard for viability or something narrower than what this decision appears to look like. A lot of conservatives have argued that all this court is doing is sending the decision back to the states. But is that how you’re reading this? Is that what the intention here is?
Jesse Wegman: That’s literally what the court is doing, yes. It sends the decision back to the states. It allows states to ban abortion outright if they choose. It allows states to legalize abortion if they so choose. Most states, I think if not all states, are on the record as doing one or the other of those things, or regulating it somewhere in between.
But I will say — and I’m sure Michelle has a lot to say about this as well — that we all know this isn’t the real end game, because there’s a whole movement behind the anti-abortion movement that is this so-called fetal personhood movement, which attempts to vest fetuses with the rights of born people.
So I wouldn’t be surprised to see a very strong effort nationwide to not just send this matter back to the states, but to make it difficult for states to legalize abortion at all.
Jane Coaston: Michelle, again, this is a draft decision. But what would this mean for people seeking abortions? Whose access is likely to be most restricted?
Michelle Goldberg: I agree with Jesse that the end game is a nationwide abortion ban. It’s not something that’s going to happen imminently, as long as we have a Democratic president. I think that there will be a debate, if there’s ever a Republican trifecta again, which there’s likely to be, about whether they should get rid of the filibuster in order to enact a total abortion ban.
But for the time being, if this is the decision that comes down in June, you’re going to see abortion banned in the 13 states that have what are called trigger laws. These are laws that basically say if-and-when Roe is overturned, abortion is illegal in this state.
There’s a bunch of other states that have, still, their pre-Roe abortion bans on the books, and those could start to be enforced. The estimates I’ve seen are that in somewhere between 24 and 26 states, abortion will be banned. So in blue states, abortion will still be available. Although what’s going to happen is, it’s going to become harder to access, just as a matter of crowding. Every state with functioning clinics is likely to be overrun.
The other thing I think is going to happen is that women who have miscarriages are going to come under a lot of suspicion — maybe not all women, maybe not white middle-class women with private doctors, but a woman who shows up in the hospital having a miscarriage, it’s going to be, “What did you do to cause this?”
And so it’s just going to be a mess, because again, so many of these decisions are going to be left to individual prosecutors. And also because doctors are going to have to operate under sort of the worst-case scenario of how this legislation can be interpreted.
It’s also worth talking about what Jesse said about these fetal personhood laws, because these have already been enacted in many, many states. The idea is to set a precedent for fetal personhood that would make it easier to conceptualize the fetus as a distinct person in the law, in the culture. The reason I think this is really, really important is because before Roe, women by and large were not going to prison for clandestine abortions. They would sometimes be threatened with prosecution in order to get them to testify against doctors or against abortion providers, but abortion was the crime — the crime wasn’t murder. And so we now have a very different situation after 49 years of arguing about fetal personhood, of arguing that abortion is kind of a type of homicide.
You’re already seeing a bunch of cases where women have been prosecuted under fetal homicide laws or fetal endangerment laws for doing drugs while they were pregnant, for attempting suicide while they were pregnant. And it’s only been Roe v. Wade that has stopped prosecutors from prosecuting women who have abortions. They’ve always had to have an exception in these fetal endangerment and fetal homicide laws for abortion because of Roe v. Wade. But that, in a few months, likely changes. So we already have some intimations of what this is going to look like.
Jane Coaston: There has been a lot of doom-saying and doom-scrolling going on online, particularly talking about what this could mean — that this will obviously mean that Loving v. Virginia is gone. Obergefell is gone.
There’s a whole paragraph of the draft decision that ties Casey to a bunch of decisions, including Loving v. Virginia, which struck down laws against interracial marriage. The case Skinner v. Oklahoma, which was about the right not to be sterilized without consent. Very disturbing. It also discusses such cases as Lawrence v. Texas, which ended sodomy bans, and Obergefell v. Hodges, which instilled marriage equality across the land. As someone who now has been married for seven years — huge fan.
My concern is that a lot of people who are very concerned about this draft are tying together a lot of different pieces here. And I do not want to be wrong about this. I do not want every Cassandra online to be correct, but I don’t think that this decision is the first step to winding back every civil rights decision we’ve ever had.
There’s been a March for Life every January for my entire life and before. There’s no March Against Loving v. Virginia.
Jesse Wegman: Not yet!
Michelle Goldberg: But Jane, I think that we shouldn’t lump all these things together. Right? I mean, yes, I don’t think that this is the end of every single civil right, obviously. I don’t think that there is a constituency in this country for repealing Loving v. Virginia.
Obergefell might be a little bit more vulnerable, especially because it’s sort of very explicitly — Jesse can correct me if I’m wrong — based on the same legal reasoning as Roe and Casey.
Jesse Wegman: Actually Obergefell, the right to same-sex marriage, is partly based on substantive due process in the 14th Amendment. It’s also based on the equal protection clause of the 14th Amendment, which I think is a much stronger and firmer foundation for rights like these, the rights of individual autonomy, bodily integrity, that sort of thing. And I’ve made the argument, as have many people, that equal protection would be a stronger foundation for the right to choose to terminate a pregnancy, just as it is the basis of the right to marry the person of your choosing.
Michelle Goldberg: Fair enough. I would say that the one thing that I think is most immediately endangered, besides legal abortion, are some forms of birth control. Possibly Plan B. On the one hand, you think there’s probably not very much political appetite to roll back —
Jane Coaston: And hasn’t there been a lot of support? I mean this is where we get into the wiggly nature of the numbers here, because there are a lot of conservatives who were like, yeah, make birth control over the counter. The number of people who are really aiming at Griswold v. Connecticut seems comparatively small. That doesn’t mean they couldn’t do it. Anything, apparently, can happen, but it seems small.
Michelle Goldberg: I think that is mostly right, but I also think that you constantly see people in the anti-abortion movement trying to redefine common contraceptives as abortifacients and sort of wall them off from things like condoms. And I just think that this is really important language from the ruling itself: It says laws regulating abortion “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
And those interests includes, it continues, “respect for and preservation of prenatal life at all stages of development.” So it definitely gives the OK for total abortion bans and could possibly be interpreted to include some sort of forms of contraception.
Jesse Wegman: And to be clear, that language that Michelle just quoted, “rational basis,” is the lowest bar that the government needs to clear in order to get judicial approval of a law.
So when the court uses those magical words “rational basis,” it’s essentially a green light for governments, state or federal, to pass whatever laws they want on the subject. Only the most egregious laws that have zero basis in any conceivable legitimate objective will be struck down. But that’s generally understood as saying, go for it.
Jane Coaston: I think that this puts new pressure on Congress. Senator Bernie Sanders and others have demanded Democrats use their majority to codify Roe. However, without the filibuster, if Republicans got the trifecta in 2024, they could just turn around and have a national abortion ban.
It seems this is one of those issues where polling popularity of a total ban on abortion has absolutely nothing to do with whether or not people would try to instill one. And you’ve heard from Senator Susan Collins saying repeatedly that Justices Brett Kavanaugh and Neil Gorsuch told her privately that they considered Roe to be established precedent.
Michelle Goldberg: Yeah. She sounds very concerned.
Jane Coaston: Yeah, the concern level has gone to troubled. How should Congress respond, Michelle, and how do you think Congress will respond?
Michelle Goldberg: If Republicans have a chance to pass a total abortion ban by getting rid of the filibuster, I would put money on them doing it. So I’m not that concerned about Democrats getting rid of the filibuster and then having it come back to bite them when Republicans use it against them.
I think Congress should get rid of the filibuster for this and many other reasons and pass a national law enshrining abortion rights. The chances of that happening seem to me to be infinitesimally small, so demanding it has the feel of banging your head against the wall.
You know, the politics of this leak are a little bit ambiguous, right?
I mean, the right is assuming it was leaked by somebody supportive of abortion rights. That may well be true — that it was leaked as a sort of warning about what they’re going to do. But I don’t know that it really helps Democrats or pro-choice people that much to have this two months early in order to prepare. Especially when the language of the draft opinion itself talks about how they’re kind of impervious to the political consequences. And so if they actually do amend it now, it will seem as if they’ve somehow buckled.
And in some ways, the leak of this document has allowed some of the discussion to be about the leak instead of about the end of Roe v. Wade. It sort of muddles the whole thing. Instead of just the earthquake of headlines that say, “Supreme Court Overturns Roe v. Wade,” you have this slightly indeterminate situation. And again, I have no real opinion about who did it, because I just don’t know, but it seems like it could just as easily have been leaked by somebody on the right who wanted to lock in support for this very strident opinion before people that they see as kind of squishier watered it down.
Jesse Wegman: I agree with Michelle. We don’t know the identity of the leaker. The chief justice, John Roberts, has called for an investigation into this, though it’s unclear what law exactly would have been broken.
I do want to talk about the leak. I do think it represents a really shocking breakdown of the norms at the court. To get a full draft opinion, fully footnoted, is really something I’ve never heard of before.
And I think it reflects a growing politicization at the court, which is absolutely the intent, I think, of Senate Republicans in particular, who have spent the last six years, especially, engineering the court precisely for this moment.
Jane Coaston: Which I’m so interested in, because you’re seeing conservatives responding with this weird energy of the dog that catches the car.
Michelle Goldberg: Yeah, on Fox News somebody was just like, “The sky isn’t going to fall.” And it’s like, what do you mean the sky isn’t going to fall? You got exactly what you wanted!
Jane Coaston: I think someone did some math that Fox News this morning mentioned the leak more than they mentioned what was leaked.
I’ve been alive for nearly 35 years. The anti-abortion movement has been a movement aiming to end abortion for longer than I have been alive. This is the goal. This is the end point. They did it. Woo! And I’m so curious by this energy of, like, “We’re very mad at the leaker here, we don’t even want to talk about what they leaked,” even though this would be the crowning achievement of a movement that’s been around for longer than I’ve been alive.
Jesse Wegman: One angle to come at this is the leak and how it reflects an institutional erosion that we’re seeing all over the country at both the state and federal levels. And I think that’s a real concern and we should pay attention to it.
But I also think there is an institutional point here about the court itself and the makeup of the court.
This opinion, this decision when it comes down, as with so many other decisions of the last couple of years and of the decades going forward, are purely the result of the makeup of this court and nothing else.
Nothing about the law has changed. Nothing about the facts on the ground have changed. It is about who is on the court. And that is why Mitch McConnell held a seat hostage to get the man he wanted on the court, rather than the person that Barack Obama would have appointed, who almost certainly would have upheld the right to an abortion.
That is why when Ruth Bader Ginsburg died so painfully close to the election, the Republicans scrambled like bats out of hell to get Amy Coney Barrett onto the court so that they would have a solid five-member majority — at least a five-member majority — to overturn Roe v. Wade. And I think we just can’t let that out of our sights. The makeup of the court is the central deciding factor in every decision that gets made by the Supreme Court.
Jane Coaston: Michelle, what do you think the political fallout of this decision will be? Do you think that this plays into the midterms at all, or, as some have argued, that the people who care the most about this issue generally live in states where abortion access is less challenged?
I know there’s a ton of abortion activism taking place in the South and elsewhere, but the people who are the maddest about it are people who already live in places where their rights might not be infringed upon.
Michelle Goldberg: I don’t think we can predict. I know that Democrats and pro-choice activists have been sort of hoping and assuming that the overturning of Roe would create big backlash. I feel like in the run-up to this, the movement has felt sort of listless. A lot of people are burned out. They’re exhausted, they’re in despair.
There’s been much, much more energy on the right in recent months. And people assumed and hoped, that would change once Roe v. Wade was overturned. Whether it actually will? I think for some people it certainly will. For some people, this is going to be a wake-up call.
I think people in swing states, some of them are going to be quite shocked when abortion in their states becomes illegal. Because I’ve heard pollsters say that a lot of people just didn’t believe that Roe v. Wade really was in danger. Maybe, in part, because so many of us have been warning for so long that it’s been in danger.
And I think that the place where I suspect it will have the most political impact is where it will make things like total abortion bans — without rape and incest and health of the mother exemptions — very live issues.
Jane Coaston: Yeah. I’m so curious about that because, again, this has been the carrot waved in front of social conservatives and the Republican Party for 50 years. So there’s been a lot of absolutism discussed among people who are opposed to abortion, particularly on the right, that they are well aware does not poll well.
Jesse Wegman: Jane, the entire Republican platform for the last several decades has been winning on things that don’t poll well.
Jane Coaston: Right, exactly.
Jesse Wegman: I mean, this is the essence of conservative rule right now. It is a fundamentally minoritarian rule. The Democratic candidate has won more votes for president than the Republican candidate in seven of the last eight elections. And yet we have a six-to-three supermajority of conservatives on the Supreme Court.
It’s an astonishing sleight of hand. It’s how these lawmakers have gotten power and then wield power, explicitly contrary to the wishes of a majority of Americans.
Researchers of democracy and comparative democracy have found that curbs on women’s rights are correlated with democratic backsliding, and that the two move hand in hand. When women’s rights are more restricted, more reduced, you have more backsliding in democratic practices.
And we’re seeing that happen here. We’re seeing these curbs on women’s rights at the same time as we’re seeing backsliding.
Majority rule is the way that representative democracy works. And when you undermine that, you undermine representative democracy.
Jane Coaston: My only pushback on that is, I think that this is where this gets complicated. I did a great deal of looking through conservative media archives. And this is something that always gets me: When you have the polling, you use the polling. When you don’t have the polling, you pretend the polling doesn’t exist.
And on issues such as marriage equality, they had the polling in 2004. That’s why it became this massive wedge issue in 2004 in my home state of Ohio. Majoritarianism is sometimes good and sometimes horrifyingly bad.
But I mean, this is all happening really fast. What don’t we know right now? This again is a draft opinion. But I’m curious as to what you’re looking out for in the coming weeks ahead of the final Dobbs decision. And what does this mean for the court writ large?
I think that there’s been a lot of talk about like, oh, this will undermine the legitimacy of the court. But I think that you see every decision the court makes seemingly undermines its legitimacy to someone.
Jesse Wegman: Well, I don’t think that’s entirely right, Jane. First, I’ll say, I don’t think this is all happening very quickly. I’ll say it’s been happening slowly for decades.
Jane Coaston: Right, that’s a good point.
Jesse Wegman: The anti-abortion movement has been crystal clear about its intent for decades now.
But I will say about this question of legitimacy — this came up just a few weeks ago with the question of Justice Clarence Thomas and his wife, Virginia Thomas, who is a very high profile and aggressive political activist, a hard-right political activist, who was involved in the Jan. 6 rally and who has lots of connections, disturbingly close connections in many cases, with parties who come before her husband’s court. The issue was over whether her texts with President Trump’s chief of staff, Mark Meadows, surrounding the weeks of the election and the Jan. 6 insurrection, should force her husband to recuse out of a perceived conflict of interest.
And I think they get at the heart of this issue of legitimacy. The court is an extremely fragile institution in American governance. Its legitimacy derives entirely, entirely from the public’s acceptance that it is a fair and neutral arbiter or that it attempts to be a fair, neutral arbiter.
When the people don’t have that confidence in the court, it loses its legitimacy. And then all bets are off.
I don’t think it’s fair to say that anytime the court rules in a way that upsets some people, they say, oh, the court is illegitimate.
I’ll tell you what has led me to feel that this is an illegitimate court is what Senate Republicans led by Mitch McConnell have done over the last six years to stack this court explicitly for the purpose of overturning Roe v. Wade. And a whole other slew of rulings that they’ve been frothing at the mouth to get through for many, many years, in some cases, decades.
And what’s happening to get to those rulings is the overturning of established precedents, as here with Roe v. Wade, a nearly 50-year-old precedent now, that nobody was having trouble implementing. There was no question the American public had changed in its feelings about whether a woman should have the right to decide what happens inside her own body. I think it’s currently around 80 percent of Americans feel that, at least in some circumstances, women should have the right to have an abortion. So overturning a precedent with no basis, no grounds along the lines of what the court generally relies on to consider overturning precedent, is a real blow to the stability of the law and the legitimacy of the body that interprets it finally.
So I think the overturning of Roe v. Wade, if it does indeed happen — and I think all signs point to that being the case — is going to be one of the most significant blows to this court’s legitimacy in the eyes of a whole swath of Americans, not just those who are openly pro-choice.
Jane Coaston: Michelle, what are you looking out for? What are you feeling about this right now?
Michelle Goldberg: What I’m feeling about this is really bereft because, I mean, I guess I knew this was coming intellectually, but the idea that my daughter is going to grow up in a world with fewer rights than I had is something that makes me really heartsick.
And I’m curious about what, if any, social changes this inaugurates. Women obviously don’t already have full equality in this country, but it just seems to me that equality cannot exist under this degree of regulation, when anyone’s uterus is a potential crime scene, when people are subject to this level of surveillance and control. Again, both people who might need and choose abortions, but also people who probably think that this doesn’t apply to them.
Jane Coaston: There’s a long, winding road ahead of us.
Michelle Goldberg: If you read this decision, it talks about how Roe v. Wade didn’t end the debate on abortion and the country has still been bitterly divided. And it seems to me you haven’t seen anything yet. The country is going to be much more polarized, particularly as people in red states try to stop, quote-unquote, “their women” from going to blue states to get abortions.
I’ve traveled to a lot of countries where abortion is illegal and what you end up seeing is that the best argument against abortion prohibitions is what they look like in practice, right? Because you always end up seeing women being prosecuted, women being hospitalized.
Once people see what this does, it ends up creating momentum for repeal. It’s why there have been very few countries that have rolled back abortion rights in recent years, and far more countries that have liberalized them. But it takes a while. I think that eventually with the real-world ramifications of the end of Roe v. Wade, and the passage of total abortion bans in many states, people are going to see what that looks like, and there’s going to be a backlash.
But so many people’s lives are going to be ruined before that happens.
Mentioned in this episode:
Skinner v. Oklahoma ex rel. Williamson Supreme Court case
Griswold v. Connecticut Supreme Court case
“The Next Frontier for the Anti-Abortion Movement: A Nationwide Ban” by Caroline Kitchener in The Washington Post
“Thoughts on a Post-Roe Agenda” by Patrick T. Brown in National Review
Credit…Michelle Marti/Getty Images
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