Will Roe be Overturned?: Abortion and the Constitution Part 1
The increasing number of new laws restricting abortion recently passed in numerous states around the country has some wondering: is Roe v. Wade and the constitutional right to abortion at risk? On this episode, we dive into landmark abortion precedent from Griswold v. Connecticut and Roe v. Wade through Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt, tracing the evolution of abortion jurisprudence under the Constitution. We also discuss the variety of new laws aimed at restricting access to abortion, and how current justices may rule on upcoming challenges to these laws—whether they will be upheld or struck down. Host Jeffrey Rosen is joined by Kathryn Kolbert, a reproductive rights lawyer who argued on behalf of Planned Parenthood in the Casey case, and Clarke Forsythe, Senior Counsel at Americans United for Life.
Clarke Forsythe is Senior Counsel at Americans United for Life, where he has worked for more than three decades. He is author of Abuse of Discretion: The Inside Story of Roe v. Wade and a prolific writer on pro-life policy issues. He has also argued cases before federal and state courts and has testified before Congress on reproductive policy issues.
Kathryn Kolbert recently retired as the Constance Hess Williams '66 founding Director of the Athena Center for Leadership Studies, and as a Professor in the Political Science Department at Barnard College. Kolbert is a public-interest attorney who argued the landmark case of Planned Parenthood v. Casey before the Supreme Court in 1992. She was previously President and CEO of People for the American Way and was co-founder and vice president of the Center for Reproductive Law and Policy.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- Griswold v. Connecticut (1965)
- Roe v. Wade (1973)
- Thornburgh v. American College of Obstetricians & Gynecologists (1986)
- Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
- Whole Woman’s Health v. Hellerstedt (2016)
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The Fourteenth Amendment Due Process Clause by Nathan S. Chapman and Kenji Yoshino
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott.
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2019-05-23 Reproductive Rights
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen , president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan non-profit chartered to increase awareness and understanding of the constitution among the American people. Dear We the People friends, abortion laws are back in the news. A number of laws restriction abortion have been passed in recent weeks in states including Missouri, Alabama, and Georgia, and we're so honored today on We the People to have two of America's most important voices for and against the constitutional arguments in favor of protecting the right to choose with us to educate all of us.
Kathryn Kolbert, who is sitting here in studio, and is now based in Philadelphia, argued the landmark case of Planned Parenthood versus Casey before the US Supreme Court in 1992. She recently retired as Constance Hess Williams, 66, founding director of the Athena Center for Leadership Studies and as a professor in the political science department of Barnard College, and was previously president and CEO of People for the American Way, and cofounder and vice president of the Center for Reproductive Law and Policy. Kathryn, it's great to have you back in Philadelphia and here in studio.
Kathryn Kolbert: [00:01:25] Thanks.
Rosen: [00:01:26] Clarke Forsythe is senior counsel at Americans United for Life, where he's worked for more than three decades. He's the author of Abuse of Discretion: the Inside Story of Roe versus Wade, and a prolific writer on pro-life issues. He's also argued cases before federal and state courts and has testified before Congress on reproductive policy issues. Clarke, thank you so much for joining.
Clarke Forsythe: [00:01:49] Thanks, Jeff. Good to be with you and Kitty.
Rosen: [00:01:51] Thanks so much. What I'd like to do, Kathryn and Clarke, is educate our We the People listeners about the constitutional arguments for and against Roe v. Wade and Casey versus Planned Parenthood so that they understand it and can make up their own minds. Kathryn, let's begin with you and with Roe v. Wade. In Roe, Justice Blackman located a right to choose abortion in the liberty component of the due process clause. Tell us about his constitutional argument and how he found a right to privacy and liberty in the due process clause of the 14th amendment that was broad enough to protect the right to choose.
Kolbert: [00:02:29] You have to remember in 1973, it was before the years of all of the good cases involving women's rights. The advocates in Roe based their arguments on privacy and liberty coming from the case called Griswold versus Connecticut, which struck down laws in Connecticut that basically said married people had no right to contraception. The Supreme Court in Griswold in earlier years had said that's unconstitutional because it violates the freedom of individuals to make private reproductive health decisions that are consistent with their marriage.
If you want to use birth control, you should be able to use birth control, and the government should not be controlling those decisions. Sarah Weddington, who argued Roe, based her views on the privacy provisions of Griswold and a number of other cases. The basic idea was that the constitution forbid government to enter into what they called the zone of privacy, or that area that surrounded important decisions involving sex, reproduction, and a variety of other important family decisions, and that the government as an entity should leave those decisions to the individual and in consultation with a family doctor, her husband, whoever it is that she depends on.
It wasn't until later years, and let me just say there have been Supreme Court cases involving abortion almost every year after 1973, but there was a strong evolution of that right in the intervening years that tried to ground it more on liberty, looking at bodily autonomy as a critical component of Roe, and also looking at equality. That is, the ability of women to function in the world as equal members of society. The argument was you can't do that as a woman unless you can control when and where you have children.
Rosen: [00:04:29] Thank you so much for that great introduction. We'll talk about those autonomy and equality arguments in a moment. Clarke, I want you to tell our listeners what you think of Justice Blackman's effort in Roe to extend the right to privacy, which Justice Douglas in the Griswold had located in penumbras formed by emanations from the Bill of Rights, and had originally covered a woman's right to choose contraception, to abortion, and whether or not you think that Roe in that sense was constitutionally convincing.
Forsythe: [00:05:01] Roe is one of the most embarrassing decisions the Supreme Court has ever issued since Dred Scott in the 19th century. It's so embarrassing that the court has basically abandoned it and its rationale. To be brief, Roe lacks any support and precedent. In fact, Blackman fairly admitted that in his Roe opinion. He cites a string of prior cases, including Stanley, Griswold, Meyer, that he said is broad enough to encompass a woman's decision whether or not to terminate her pregnancy, but then five pages later, I think it's page 159 of the decision, but he acknowledges that woman quote, “Carries an embryo, and later a fetus,” unquote.
And that quote, “The situation is inherently different from marital intimacy or bedroom position of obscene material, with which all those other cases, Eisenstein, Griswold, were respectively concerned.” He admits that there is no precedential foundation for Roe, and there is no historical or proper substantive due process foundation for Roe. Of course, Casey is a decision about abandoning the historical justification for Roe, the precedential foundation, and switching from history to sociology as a basis for Roe.
Rosen: [00:06:35] Thank you for that critique. Kathryn, respond if you will to Clarke's claim that Roe lacked plausible precedential foundation because the presence of the fetus distinguished it from the Griswold case, and then maybe introduce what you were trying to do when you argued Casey and successfully persuaded the court to ground the right to choose not on the privacy of women and doctor's, but instead on a woman's right to autonomy and equality.
Kolbert: [00:07:08] Let me just say in response to Clarke, the Supreme Court of the United States has reaffirmed Roe consistently over 30 years, over and over and over again. The last 5-4 reaffirmation was in a case I argued called Thornburgh versus ACOG in 1986. They again reaffirmed the essential holding of Roe in '92. They again looked at Casey and applied Casey in a variety of cases since then. There is no doubt that the court has consistently looked at this set of rights and supported them as being constitutionally grounded. I think the important part here is that you have to look at this from the point of view of the woman.
What happens when the government interferes with her ability to make a decision about whether to have medical care? What does it impact? How does it affect her? Frankly it affects her in a variety of ways. It interferes with her ability to make a decision about whether or not she wants to be a part, or she and her husband want to be parents. It interferes with her bodily integrity and autonomy because of course the woman is pregnant, and while there is a fetus involved, it is her body that the fetus is contained in. Lastly, it affects a whole range of abilities to impact her life within the community in a much more general way.
That is, can she work? Can she have a career? Can she decide what to do with her life in a variety of ways? I think that it is absolutely clear, not just from sociological data, but from the views of women who are affected by these laws that the ability to control one's reproductive life, whether you use birth control, whether you have an abortion, whether or not you want to get pregnant and can't, and so you use reproductive technologies to do so. That is, all of those decisions ought to be protected from governmental interference. Why? Because they affect a variety of things that impact her life.
Frankly, if there was a medical procedure that affected men in the same way, I am willing to bet that there would not be quite as much controversy over this.
Rosen: [00:09:30] Thank you so much for that incredibly clear statement. We can see why you were so successful in the Casey oral argument. Clarke, Kathryn has identified three interests that the court recognized in Casey. First, decision autonomy, a woman's ability to make important decisions about her life. Secondly, bodily autonomy and the interest in controlling what is done to her body. Third, equality, the ability to make fundamental decisions about her life and career without having burdens on her that are not imposed by men.
That third argument was championed by then advocate Ruth Bader Ginsburg, now Justice Ginsburg as early as the struck case in the 1970s. Let's take the autonomy rationale, which Justice Kennedy famously recognized where he said, “At the heart of liberty is the right to define one's own conception of meaning, the universe, and the mystery of human life.” The late Justice Scalia dismissed that as the sweet mystery of life passage, but it does draw on cases recognizing autonomy and liberty dating back to the right to contract cases of the earlier 20th century, and extending into not only been married equality cases, but also to the healthcare case where Justice Kennedy invoked autonomy interest for people to prevent being forced to buy healthcare.
What do you think is a constitutional matter of Justice Kennedy's holding in Casey that the constitution, in particular the liberty clauses, protects interests in decisional and bodily autonomy.
Forsythe: [00:10:59] Roe and Casey have to ignore history. They have to ignore precedent to get to their result. You have to talk about a very highly generalized concept to sweep abortion in with all those prior cases. Kitty's testimony, statement was very eloquent legislative testimony, and it should be taken to legislature across the country, but it doesn't root it in the constitution at all. These are policy arguments, and frankly there are women on both sides of these questions. Women are signing pro-life bills in the states. Women are sponsoring pro-life bills in the states.
There is a growing body of international peer-reviewed data finding an increased risk of pre-term birth after abortion, an increased risk of mental trauma after abortion, and increased risk of breast cancer after abortion. While we can talk, dispute the data or talk about this study or that, there is this growing body of data, and women themselves are relying upon it to promote pro-life legislation in the states. The justices have no greater command on any of these policy arguments, medical arguments than the average American voter or state legislators, and none of them root Roe or Casey in the constitution.
Rosen: [00:12:38] Kathryn, a response on whether or not the right to autonomy recognized by Justice Kennedy is a policy or constitutional argument. Of course it was extended in the marriage equality cases to protect rights of marital equality. Then tell us more about the equality argument. It is fascinating. Justice Ginsburg herself had criticized the original Roe decision for sweeping too broadly, for reaching out to decide more than was necessary, and also for being rooted in a patriarchal notion of the privacy of doctors rather than in women's right to equality.
As early as the '70s, she had recognized the equality impacts when burdens on imposed on women that are not imposed on men. Tell us about both of those arguments.
Kolbert: [00:13:21] Let me just say I, like Justice Ginsburg, would have preferred initially that Roe was decided on an equality theory, but you can't choose your theories when you're arguing for the Supreme Court. All of those arguments were made. They were made very eloquently by advocates on the women's side of this issue. Justice Blackman was most convinced by the privacy provisions. You can't pick and choose. You take what you get. Frankly, a 7-1, 7-2 decision by the Supreme Court recognizing fundamental constitutional protection for these decisions was critical, changed women's lives across the nation.
You have to remember that prior to Roe, women were traveling all over the country to try to get an abortion. Abortion didn't end when states banned it. The state laws varied from state to state. It forced women to travel there more progressive states like New York and Washington. It forced women to find illegal providers. Women died because they didn't have access to reproductive health decisions. In my view, you look at the reality of what happens to women when the government interferes with important decisions? What happens is women suffer severe health consequences. Sometimes they die. They're forced to travel from state to state to seek valid, what should be legitimate safe surgical procedures.
I am 67 years old. I was the last group of women in America that really depended or had to go from state to state. I was in college in 1970, when New York state legalized abortion, so even my peers had access to legalized abortion, at least in New York and in Washington state and California. There's a whole generation or two generations of women in America who have come to rely upon this constitutional liberty. They have focused their lives around the ability to make reproductive health decisions, decide when they want to have children or not.
Frankly for some women, and this gets lost in all of this debate, particularly women carrying fetuses that have problems, fetal anomalies that find this out very late in pregnancy. All of their decisions are much more impactful because of course they wanted to have the baby, but couldn't for a variety of health reasons. The health concerns are real. They affect women lives in a variety of different ways, and it seems to me the constitution if anything should protect the health of our citizens.
Rosen: [00:16:03] We will talk about those important reliance issues in a moment. Clarke, I want your thoughts on one more beat on the Casey decision itself. There are pro-choice scholars who agreed with you that the original Roe decision was perhaps not entirely constitutionally convincing, but that thought that Casey was more convincing, especially because of its emphasis on equality, and that there is after all an equal protection clause in the constitution, and they agree with Justice Ginsburg that restrictions on abortion impose burdens on women that are not imposed on men, and therefore deny them the right to make fundamental decisions about their life's path that men are able to make.
As a constitutional matter, do you find the equality argument any more persuasive than the autonomy and liberty and privacy arguments or not?
Forsythe: [00:16:52] No, absolutely not. Changing the word from privacy to liberty doesn't root it in the constitution any more. It doesn't root it in the text or the history or the structure. Changing the word from privacy to equality doesn't root it any more in the text, history, or structure of the constitution. It doesn't justify the court being the national abortion control board, and controlling every aspect of this issue, and every regulation of every clinic across the country. The court is not equipped and has failed in that role. There are compelling arguments in fact that the equality argument in fact works against women.
Imagining this as an equality argument basically rests on the proposition that women have to have the sexual lives of men to be equal, and many women… I would urge you to read the scholarly writings of Ericka Bachiochi, have argued that in fact the equality argument doesn't help women at all, and in fact in employment, in career, in education, it requires them to have the sexual lives of men. It doesn't treat them as women with the desire to balance family and work. On reliance interests, I suppose you're going to get to that sooner or later.
The fact of the matter is we have the lowest female unemployment rate in history, or at least I'm sorry in the last 25 years, and we have the lowest abortion rate since 1972 at the same time. According to the reliance interests of Casey, those two facts cannot coexist. The fact of the matter is the court simply got it wrong in Casey. What men and women rely on is contraception. The abortion rate has dropped to its lowest rate since 1972, and it's contraception, not abortion, that the reliance is on.
Rosen: [00:19:11] Thanks for the citation to Erika Bachiochi, and also to the introduction of the question of reliance interests, which as you say it's now time for us to talk about, because it's relevant to the question of stare decisis. Dear We the People listeners, I think you know that stare decisis means, “Let the decision stand.” The Supreme Court in Casey set up three tests for deciding whether or not a decision was so enmeshed in American law that it should be overturned even if subsequent justices think it might be wrong. Those qualities are first reliance.
Have people come to structure their lives around the decision? Second, changed facts. Are there new facts that might have called the organization premises of the decision into question? Third, workability. Has the doctrine become so unworkable that it needs to be overturned. In Casey, thanks to Kathryn's argument, the court concluded that the answer to all three of those questions was that people had come to rely on the decision, that there were not relevant changed facts, and that the decision was not unworkable.
Kathryn, tell us more about how you persuaded the court on all three of those points, and why you believe that given the fact that, as you said, not only courts before Casey, but after Casey have repeatedly reaffirmed the core of Roe, you believe that it should continue to be reaffirmed.
Kolbert: [00:20:35] I do. I'm worried very much so that this current court's not going to do so, but I'm sure we're going to get to that in a bit. I think the reliance interest is very strong. One in four women at some point in their lifetime will have an abortion. That's a huge number. It's less than it has been since 1972. Why? Because those who believe in choice also believe in access to contraception. Unfortunately, those who oppose abortion also oppose access to contraception. We've been very successful up until this current administration of spreading the ability of particularly young women to obtain contraception.
The whole point here is we want to do away with unintended pregnancy. That's the first goal. It never helps women to be pregnant when they don't want to be. Doing away with unintended pregnancy is a huge goal. Planned Parenthoods have done that very well in recent years. Rise of Title X funding during the Obama administration, the Affordable Care Act all led to increases in access to contraception of the decrease of abortion, which is a good thing. We don't disagree with Clarke on that. The point is if one in four women has an abortion during their lifetime, that means that every American knows many, many people who've had abortion, who made these decisions, who have had a whole range of reasons for doing so.
They're part of their families. They're part of their colleagues at work. They're part of their friendship networks. The point is is that women obviously rely on contraception first, but contraception is not 100%. There are women who get pregnant when they don't want to be, even when they are using contraceptions, procedure, or a whole range of contraceptive in a particularly appropriate way. You can't always control when you get pregnant. I always say when you want to be pregnant, it's hard to do. When you don't want to be pregnant, oh, my God, you're pregnant.
That's the reality of many, many women across this country and around the world. It seems to me that the reliance interest is very clear and the reality of women's lives in this country. More importantly or as importantly, it seems to me that the attacks on Roe have changed over the years, often plotted out based on when those who oppose abortion get control of state legislatures. We've seen a huge increase since 2010 of restrictions on abortion. Right after Casey was decided, there were hardly any restrictions on abortion that was passed. Why? Because the courts settled the issue.
The more that those who oppose abortion control the state legislatures, the more that the court looks like it may be amendable to changing the law. We're going to see more and more attacks on reproductive health. It seems to me only clarity is going to solve this problem, and unfortunately the current court is not giving us that clarity.
Rosen: [00:23:46] Clarke, if you were arguing before this court that the three criteria for stare decisis were not met, namely that there are not serious reliance interests, that the facts have changed, and that the decision has become unworkable, what would the argument be?
Forsythe: [00:24:04] Actually, I would start with three additional factors, as I laid out in my Georgetown article last fall. First, Roe is clearly unsettled, and Casey is clearly unsettled. The fact that the red states are going in one direction and the blue states are going in another direction to the blue states wishing to preserve abortion on demand for any reason at any time, specifically because they believe that Roe will be overturned. The red states going in another direction because they, too, believe Roe will be overturned.
The fact of the matter is it seems like everybody in the country expects Roe to be overturned except the justices. Roe and Casey and clearly unsettled. Justice Thomas in a recent decision just emphasized the wrongly decided factor. In Casey, the court acknowledged the wrongly decided factor, that the original precedent was wrongly decided, but they just passed over it and didn't address it. Wrongly decided goes to so many different factors of no basis in text, structure, history, but it goes to the fundamental fact that this is an issue for the states, and the people in the states, and the democratic process, and all of the policy and legislative arguments that Kitty has made are as accessible to voters, and to legislator, and to women legislators as they are to justices.
Roe and Casey are unworkable. There's no better example than Hellerstedt. The court took upon itself the role of the national abortion control board, but what are you going to do, send clerks to the clinics to assess the regulations? That's the role of the court has assumed. They can't do it. They never have. They just let the clinics regulate themselves. Hellerstedt has just spawned 20 or 30 or 40 cases in the lower federal courts challenging limits on abortion that were presumed to be constitutional before Hellerstedt. Physician-only laws, reporting requirements, informed consent laws, ultrasound laws.
All of the laws before Hellerstedt that were presumed to be upheld by Casey are not being challenged. There is complete unworkability, complete unsettling. Hellerstadt has spawned chaos and confusing in the courts and the legislatures. Numerous facts have changed. Ultrasound came on the market three or four years after Roe versus Wade. They were blindsided by it, and it has permanently changed public understanding of human development. Numerous legal changes. The enactment of the Federal Pregnancy Discrimination Act. Pregnancy discrimination acts in 40 or 45 states.
Then to go to reliance, reliance is one of the most embarrassing parts of the Casey decision because they cited two pages from one book by Rosalind Petchesky, Abortion and Women's Choice. That's it. That's the basis for reliance in the Casey decision. If you read Rosalind Petchesky's book, she never makes the argument that the court says she makes. She doesn't say reliance on abortion has contributed to women's participation in the workforce. She says contraception has. She doesn't even make the argument that the court says she makes, and that's the only basis for reliance interests in the courts in Casey.
It's time to overturn this embarrassing doctrine by the court, and return the issue to the people in the states.
Rosen: [00:28:18] Thank you for that powerful argument, which may be a previous of the arguments that are made to the court in efforts to overturn Roe. Kathryn, I think a response is necessary. Clarke just said on the three factors, when it comes to workability, he mentioned the Hellerstedt decision. That's the 2016 decision where the court rules 5-3 that Texas can't place restrictions on the delivery of abortion services that create an undue burden, in particular striking down admitting privileges of Texas hospitals. That may come back before the court with subsequent laws.
When it comes to changed facts, he said a lot has changed. The question is much more contested between red and blue states, and both the states and the feds are passing lots of new restrictions, and he said that the original reliance argument was not persuasive. What is your response?
First of all, the original reliance argument was persuasive. Obviously the court agreed to it, and women's lives are affected by these rights. I think the important question here from a bigger, if you move back a few steps, the question is should the court be asked year after year after year to change an opinion that they issued 35 years ago, that was grounded in law, and that has worked? It has regulated an area, federal courts have be able to interpret what it means, federal courts have been able to enforce it. Should they be asked year after year after year to change their view?
My view is no, because the doctrine of stare decisis means that the law ought to be settled. The law ought to be clear. The law should not always be in turmoil. Frankly, it is the politics of this issue, the fact that the right has made it a litmus test for the appointment of judges, has made it a key part of their coalition that they build, a key part of what has happened in the states. The fact that the right uses this issue to build their political power shouldn't be what determines whether or not someone has a constitutional right. It doesn't depend on where you live.
Is it fair that women in Texas can't have access to abortion, but women in New York can? I don't think so. I think that it is important, whether you live in a red state or a blue state, that you have equal access to healthcare. That should be true no matter where you live, no matter how rich you are, no matter how young you are, no matter where you're a part of a minority group of any kind. Women's rights ought to depend first and foremost on the law protecting their ability to decide whether or not to be a part, and their ability to make decisions that affect their lives.
Rosen: [00:31:07] Clarke, let's now turn to the many laws that as you mentioned the states and the feds are passing. Lana Ulrich and Jackie McDermott, who are with me in studio, helpfully divided them into four categories first time, that is restrictions based on the amount of time that's passed since conception. Second, conditions, laws covering when abortions can be accessed. For example, when the health of the mother is at stake. Third, testing, laws that require women to have ultrasounds, for example. Four, notification, doctors telling women about other options.
When you look forward to what the Supreme Court may do, Clarke, you believe that Roe and Casey should be overturned. The conventional wisdom at the moment, whether it's correct or not, is that Chief Justice Roberts will not be eager formally to overturn Roe v. Wade, but may instead prefer to uphold some of these restrictions under the Casey undue burden standard without formally repudiating. Do you agree with that conventional wisdom? If it's right, what kind of laws do you think are likely to be upheld in the short and medium term? Maybe you could give us a sense of what you're expecting over the next couple years?
Forsythe: [00:32:17] First of all, it's obvious, at least up to now that the court is going slow on the abortion issue. There are four cases before it now, two from Indiana, one from Alabama, one from Louisiana. The court could decide to take any or all of those, or none of those, and they could decide to do that by the end of the term, or they could kick the can down the road to the fall. There's a great deal of uncertainty, but up to now it's clear that the court is going slow on the issue. You mentioned the laws coming out of some of the red states, but the blue states are going in an opposite direction in expectation that the court is going to overturn Roe sooner or later.
That's what we call federalism in this country. Federalism will better reflect public opinion on this issue rather than the one-size-fits-all dictate that the court issued in Roe versus Wade. I might not have written any of these law the way they're written, or all these laws the way they're written. The fact is that's what it means to live in the United States and have a system of federalism in which the people can keep their legislators accountable to them, express their opinion, and have public policy fitting better with public opinion, rather than the unsettled 46 years we've had under Roe versus Wade in which the court's decision has obviously conflicted with democratic action.
Rosen: [00:34:02] Kathryn, your thoughts about whether you agree with the conventional wisdom that Chief Justice Roberts may not be eager to overturn Roe, and therefore uphold draconian time restrictions that would ban reproductive choice from the moment of conception, as the Alabama law would do, but instead may be more inclined to uphold conditions on reproductive choice, testing laws, and notification laws on the Casey undue burden standard? If that's right, what will the effect on women be?
Kolbert: [00:34:35] I think there's two issues here. One is will the court take an abortion case and make a new ruling, and when? Let's start with whether. I absolutely think an abortion case will go to the court soon. It may be out of one of these four cases that are currently pending. It may be one of the bans. Frankly as a matter of practical reality, it makes very little difference. I am of the view, unlike what you originally said, that there are five votes on this current court to overturn Roe. Justice Roberts is not going to be our savior here. Justice Roberts was mentored by Chief Justice Rehnquist.
He took positions against abortion early in his career in a variety of different ways. He joined the court in the very limited view of stare decisis in this Hyatt case just a couple weeks ago. Chief Justice Roberts is not going to save us here. In fact, I think it makes very little difference whether it's a regulation case or whether it's a ban, because the issue before the court is what latitude will the court give to states to enact restrictions? In my case, in Casey, following the oral argument, there was a conference of the justices.
They voted at that conference 5-4 to overrule Roe and adopt what lawyers call a rational basis test. It is permitting states to do anything they prefer, as long as it's rationally related to the end, and in this case the end of what they call preserving life. Chief Justice Rehnquist wrote that opinion. It was never published. It was never adopted by the court because Justice Kennedy changed his view, but I absolutely believe there's five votes on this court to do exactly the same thing. I think Justice Roberts will be one of them. That's somewhat of a minority view.
As a practical reality, if the court says, “We're going to open up the standard, we're going to let states do more and more and more things that restrict women's ability to obtain abortion,” then as a practical reality, women will not be able to obtain abortions in wide swaths of this country until the blue states spread their wings, and more and more states become blue. That is the reality. Frankly, the middle of the country, the south in particular, access to abortion will be extremely limited on whatever standard this current conservative court adopts.
Rosen: [00:37:12] Clarke, since Kathryn puts the point so firmly, do you agree with her that eventually, maybe in the long-term, Chief Justice Roberts might join four other justices to overturn Roe? What would the effect of an overturning of Roe mean? Do you agree with her that access to abortion would meaningfully change, or do you agree with Justice Ginsburg, who said that even in red states, abortion access for poor women is so restricted already that overturning Roe would make access to poor women harder, but there's no much access as it is, so it might not change the facts on the ground all that much?
Forsythe: [00:37:57] I think there would be diversity in the states when Roe is overturned. There will be diversity in the states. If Roe was overturned today, perhaps 10 or 12 states might be able to enforce prohibitions that are on the books, but in the rest of the 40 states, abortion is going to be legal up to 20 weeks, or viability, or beyond. In those 40 states, there's going to be a little immediate change. What might those 40 states do remains to be seen, but I think there would be diversity, and frankly, I think under a federalist system where the states decide, frankly, the public policy isn't going to look like I'd like it in protecting life, but it's not going to look like Kathryn would like it in allowing abortion throughout pregnancy like New York.
It will better reflect public opinion. There's this mantra out there in the press always that the country is polarized over abortion. It's a polarizing issue. In fact, the Gallup survey since 1975 has shown there's a majority of Americans in the middle who would allow abortion under certain circumstances, but the country isn't polarized. Suggesting that there are 50% one end of the spectrum, and 50% on the other. That's just not where American attitudes are. They're more diverse. There is a majority in the middle who might support a moderate policy allowing abortion to some extent, but allowing limits and regulations to some extent.
That would be a world, an America in which public policy is better aligned with public opinion. As to the course ahead, I think legislators in the states need to understand first that the court can't be forced to hear any issue. Justices have almost absolute discretion as to which cases and which legal issue they address, on what time frame, or whether they ever address certain legal issues. Secondly, contrary to I think the assumptions of some state legislators, they don't need a prohibition of any kind to reexamine Roe versus Wade. They can reexamine Roe in any case with an abortion law that arguably conflicts with Roe.
They did that in Webster, Missouri law with no prohibitions, and they did that in Casey, a Pennsylvania law with no prohibitions. As I wrote in National Review online last week or two weeks ago with a title of the Heartbeat Bills May be the Least Likely to Attract Supreme Court Review, frankly I think it's unlikely that the court will take up first trimester prohibitions. It's more likely that they, to just be very, very simple, simpler cases are easier than hard cases. It's easier to take up cases without first trimester prohibitions than cases with first trimester prohibitions.
The last thing is there's a lot of opportunity because there are 20, 30 cases in the lower courts or at the court now that the court can address it.
Rosen: [00:41:49] It's time for closing arguments in this absolutely fascinating discussion. Kathryn, the first one is to you. What would the world look like if Roe v. Wade were overturned?
Kolbert: [00:42:02] I, unlike Clarke, believe that many state legislatures, not just ten, would move to restrict access to abortion. Primarily in the middle of the country and in the souther part of the country. I don't think any of those state legislators are reflecting popular opinion, like he has proposed. That is, 71% of Americans today believe that the law ought to remain what it is, that Roe ought not be overturned. There's only about 26% that believe it should be. If you're talking popular opinion, it's support for the current circumstance, and state legislators often do things for political reasons that have nothing to do with popular opinion.
Frankly, it affects women's lives. My view in all of this is that people who believe in choice need to make their voices heard, need to elect pro-choice legislators both in the senate, US senate, and at the state level, that states make a major difference and elections matter, and that they ought to in my view be out there canvassing, knocking on doors, writing post cards, getting involved in electoral politics to change the status quo, because nothing will happen good for women until pro-choice legislatures control the circumstance.
Frankly, I feel really, really badly for the women who live in states in which their legislators are not responsible to their needs. Alabama, Mississippi, Missouri over and over have said, “We don't care what happens to your life. We don't care what happens to your health. We want to do this for political reasons, and we're going to pass these onerous laws.” I think they'll continue to do so until the people in those legislatures change.
Rosen: [00:43:55] Clarke, the last word is to you. What would the world look like if Roe v. Wade were overturned?
Forsythe: [00:44:00] Abortion policy would be better aligned with public opinion in this country. The issue would be decentralized. The court wouldn't be a big, fat political target on this issue. The issue should be returned to the democratic process. It should be returned to the people. If public opinion is as Kathryn says, then you'll see legislators legalizing abortion. It's more diverse than that, and there is a majority in the middle who could accept some abortion, early abortion, but accept some limits and regulations. That would be good for our political process.
From the testimony of many women over the last 46 years, they have been damaged by abortion. Many women can testify that their abortion festered on them for 10 or 20 or 30 years. They have expected the long-term mental problems and trauma from it, or issues of infertility and broken relationships, and on and on. They have testified before state legislatures. They have brought their voice to the US Supreme Court. This notion that abortion is great for women, all in favor of women, easy, cheap, wonderful is just contrary to the testimony of millions of women across this country.
If the court is concerned about its legitimacy, the most important thing the court can do is overturn Roe versus Wade, return the issue to the people, get out of the abortion umpiring business where they have no place to be, and return the issue to the American people as soon as possible, even though I don't think it's going to happen in the short-term.
Rosen: [00:46:11] Thank you so much, Clarke Forsythe and Kathryn Colbert, for an illuminating, deep, and truly educational discussion about abortion, the constitution, and the future of Roe v. Wade. Clarke, Kathryn, thank you so much for joining.
Kolbert: [00:46:27] Happy to be here. Thanks.
Forsythe: [00:46:28] Thanks, Jeff. Thanks, Kathryn.
Rosen: [00:46:34] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Your homework of the week, read Roe v. Wade and Casey versus Planned Parenthood, and write to me, and tell me whether or not you find them constitutionally persuasive, [email protected] Very eager for your thoughts after hearing this superb conversation. Please rate, review, and subscribe to We the People on Apple Podcast and recommend this show to friends, colleagues, or anyone who enjoys and is hungry for weekly constitutional education and debate.
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