This week, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization: a case challenging Mississippi’s law that bans abortion after 15 weeks. The issue in the case is whether all pre-viability prohibitions on elective abortions are unconstitutional—and the outcome could challenge the future of Supreme Court precedent on abortion from Roe v. Wade to Planned Parenthood v. Casey. In our last episode, we were joined by two experts to preview the issues in Dobbs. (Be sure to listen to The Dobbs v. Jackson Case – Part 1 episode if you haven’t already!) Today, they return to help us unpack the oral arguments.
Host Jeffrey Rosen is joined by Mary Ziegler, the Stearns Weaver Miller Professor at Florida State University College of Law and author of Abortion and the Law in America: A Legal History, Roe v. Wade to the Present, and O. Carter Snead, professor of law at Notre Dame Law School and director of the de Nicola Center for Ethics and Culture.
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This episode was produced by Melody Rowell and engineered by Greg Scheckler. Research was provided by Michael Esposito, Chase Hanson, Sam Desai, Sam Desai, and Lana Ulrich.
PARTICIPANTS
Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law. She specializes in the legal history of reproduction, the family, sexuality, and the Constitution. Her most recent book, Abortion and the Law in America: A Legal History, Roe v. Wade to the Present, was published by Cambridge University Press in 2020. Her new book, Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment, will be published by Yale University Press in the summer of 2020.
O. Carter Snead is Professor of Law and Director of the de Nicola Center for Ethics and Culture at the University of Notre Dame Law School. He is one of the world’s leading experts on public bioethics. He is the author of What It Means to be Human: The Case for the Body in Public Bioethics. In addition to his scholarship and teaching, he has provided advice on the legal and public policy dimensions of bioethical questions to officials in all three branches of the U.S. government.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
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Listen to the oral arguments in Dobbs v. Jackson Women’s Health Organization
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"The End of Roe," Mary Ziegler's article in The Atlantic
- Amicus brief sumbitted by Carter Snead and Mary Ann Glendon
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: Hello, We The People friends. In honor of the 234th anniversary of the ratification of the Constitution, the Constitution Center is thrilled to be launching an exciting crowdsourcing campaign. Thanks to our friends at the John Templeton Foundation, every dollar you give toward We The People will be doubled with a one to one match, up to a total of $234,000. Uh, since we launched the campaign, we've raised $3,532 from a total of 36 donors. That is wonderful, but I want you all, dear We The People listeners, show your support for this podcast and the great community of learning and light that you're a part of by giving to the crowdsourcing campaign, $5, $10, or more. All amounts are appreciated. So go to constitutioncenter.org/townspeople, that's all one word and all lowercase. And thank you for supporting We The People. Now, on to today's episode.
[00:01:00] Jeffrey Rosen: [Music] Hello, friends. I'm Jeffrey Rose, 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 non-partisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. This week, the Supreme Court heard oral arguments in Doubs vs. Jackson's Women's Health Organization. In our last episode, we were joined by two superb guests to preview the constitutional issues in Doubs. And be sure to check out that episode if you haven't already. And today, they join us again to illuminate and unpack the oral arguments in the case. Carter Snead is professor of law and director of de Nicola Center for Ethics and Culture at the University of Notre Dame Law School. Carter, welcome back. Thank you so much for joining us again.
Carter Snead: It's great to be with you again. Thanks for having me. It's great to
[00:02:00] Carter Snead: be with Mary too.
Jeffrey Rosen: And Mary Ziegler is the St earns Weaver Miller professor of Florida State University College of Law and author of Abortion and the Law in America: A Legal History Roe vs. Wade to the Present. Mary, wonderful to have you back as well.
Mary Ziegler: Thanks for having me.
Jeffrey Rosen: I'm going to ask each of you to begin with, uh, general thoughts about what we learned from the argument. And then let's just go justice by justice to understand, uh, the thinking, uh, that that justice, uh, revealed in the arguments yesterday. So, Carter, first thoughts to you. Uh, what did you learn from the arguments yesterday.
Carter Snead: It was an interesting argument. Uh, it was interesting in one way because there weren't a whole lot of surprises, I don't think, with the exception of Chief Justice Roberts', uh, reflections and sort of musing about what possible outcomes he might favor, which we can talk about momentarily when we turn to him specifically. Um, it was... I think it was- it was not that surprising. I think justices argued from the perspectives that we expected them to in terms of their jurisprudence. Uh, the one thing that was
[00:03:00] Carter Snead: interesting to me was that all of the advocates, even when pressed by the justices, uh, took the position that there was no middle choice here. You could either affirm, uh, Roe and Casey in their entirety, or you, uh, and strike down the 15-week ban, uh, or- or you could affirm the 15-week ban and effectively gut Roe and Casey. Uh, Justice Grouch, in particular, pressed all the advocates on that question and there were no takers. So, it's a kind of striking thing when the advocates on both sides of the debate sort of push all there chips into the table and say, "We're all in. We're not even contemplating a- a middle position." That was a pretty dramatic choice, I think, on all of their parts. And- and it'll be interesting to see how that plays out. I think it was also interesting, though not surprising, that the- the bulk of the conversation dealt with questions of stare decisive, not the questions of whether or not Roe and Casey were decided, uh, correctly in the original instance. Um, that was, I- I don't think much of a surprise to anybody, but- but it played out as we expected. Um, and because it was about stare decisive and the issue of reliance, there was a lot of discussion about
[00:04:00] Carter Snead: policy. There was a lot of discussion about women's flourishing, about women's success, about women's freedom, their bodily integrity and their futures on the one hand, and discussion as well of the state's interest in, uh, defending prenatal life and other goods on the other hand. So it was quite a- quite a lot of time was spent on those particular issues. And then the last thing I'll say, just to keep it brief, is that, um, the question of the court's reputation came up in an interesting way, in a very pointed way in some cases, especially Justices Soto mayor and, uh, in a less pointed way, Justice Breyer talking about the consequences of overruling longstanding precedents that, uh, have kind of iconic status in the minds of the American people.
Jeffrey Rosen: Thank you very much for all that. Mary, what did you learn from yesterday's arguments?
Mary Ziegler: There were no surprises for me in the sense that I expected Mississippi to win in this case. Um, and obviously nothing I heard yesterday changed that. But I thought that there might be more interest, not from the advocates in the kind of... I mean, I don't if presenting it as a middle way really makes sense, but in something short of a- an
[00:05:00] Mary Ziegler: outright repudiation of Roe. I thought there would be more interest from some of the justices in that. And quite clearly, Chief Justice Roberts was sort of testing the waters for that kind of solution and I think largely finding no takers. I think much of the argument went by with none of the other justices picking up that thread of argument. Um, Justice Amy Coney Barrett briefly touched on it well after the midway point of the argument. And so I think, um, the odds of this being, you know, a direct confrontation with the very idea that there's a right to abortion, the odds of that happening went up exponentially after yesterday's argument. And I was certainly convinced that the court was going to reverse Roe. I wasn't convinced that it would happen this quickly because I thought that some of the- the institutional or sort of legitimacy concerns that Justices, uh, Soto mayor and Breyer articulated, might convince the court to- to unravel Roe over a- in a sort of series of steps, uh, not to do it as quickly. But I think I was wrong about that after yesterday's arguments [laughs]. So I think, uh, what we learned is that the court
[00:06:00] Mary Ziegler: sees this as a sort of lights-off, lights-on kind of absolute decision that needs to be made immediately and that will likely be made, um, in favor of Mississippi by this summer.
Jeffrey Rosen: Thank you so much for that. All right, let's go justice by justice beginning with Chief Justice Roberts. Um, the Chief repeatedly suggested that viability was not central to the holdings at Roe or at issue in Casey. He cited Justice Blackmun's papers, which said that the viability line was dicta. And he asserted that moving the line up to 15 weeks would not substantially change abortion jurisprudence. I'd like to focus on the 15-week ban, he said, because that's not a dramatic departure from viability. Um, Carter Snead eh- what did you make of the Chief Justice's focus on abandoning the viability line and embracing 15 weeks instead? If he were to embrace that, how- how do you think he would justify it constitutionally?
[00:07:00] Jeffrey Rosen: And what else did you make of Chief Justice Roberts' interventions?
Carter Snead: It seemed to me as if he were, as Mary suggested, trying out a possible avenue to take an incremental approach to, uh, dismantling the apparatus of ... the jurisprudential apparatus of Roe and Casey. Uh, I was surprised at- at- when he suggested that viability was not central to the holdings in- in Roe and Casey, that that might be a possible pathway. Because for sure, all of the lower courts, uh, in the United States have taken it to be a- a central feature of the holdings. Um, and I think that was certainly the view of the justices in Casey, whether or not it was essential to the holdings, a- a different question, as- as Chief Justice Roberts points out. Um, but it was interesting, as Mary said, I don't think there are- were many takers to this proposition. There cert- certainly weren't takers among the advocates, uh, for Mississippi, for Jackson Women's Health, or for the Solicitor General of the United States. They focused specifically... I mean, they- they really vigorously defended viability, uh, that is the
[00:08:00] Carter Snead: advocates for Jackson Women's Health Organization, in this case. They defended viability vigorously. They- they defended what they regarded as its intelligibility, as it- as a- as a, uh, sensible balance between the different goods at stake. Um, and they even discussed, uh, the issues that made a 15-week ban unacceptable to them. Uh, they described it, I think... I don't remember if it was the Solicitor General or Ms. Perelman who described it as, um, a sort of fair chance principle. Uh, you have a fair chance of- a reasonable chance of obtaining an abortion, um, in- in a reasonable period of time. That seemed to be the direction that- that, uh, the Chief was moving in. Uh, and the said, well, no, that doesn't work. Um, it's- that it's- it's arbitrary. And also, not only is it arbitrary, uh, there are serious concerns that they had, serious interests that women had in getting an abortion between 15 weeks and- and- and viability. So, um, despite the fact that he- he- he went down that road, I think that, um, that it seems that there weren't any takers among the justices or among the advocates.
Jeffrey Rosen: Mary, what did you
[00:09:00] Jeffrey Rosen: make of Chief Justice Roberts' focus on the 15 weeks rather than viability as a possible point for an undue burden to kick in? Um, and, if he were to embrace that line, what do you think he would invoke constitutionally to justify it? Would it be his- history, tradition, the quickening li- line? Try to take us inside Chief Justice Roberts' mind and- and give us a sense of what he was thinking.
Mary Ziegler: So maybe I- I just can channel Chief Justice Roberts better, but this is what I thought they were going to do going into the argument. So I thought the argument was gonna be, uh, essentially that viability, I think, more than any other aspect of the Roe and Casey framework has been criticized. Um, in part, it's been criticized because historically, as David
[inaudible 00:09:46] Mary Ziegler: and other historians have shown, um, it wasn't necessarily what Harry Blackmun had originally settled on. He had originally settled on 12 weeks. Um, he was pressed to change it in part for some of the concerns that- that Jew- Julie Perelman raised
[00:10:00] Mary Ziegler: yesterday, namely that, um, it would not be possible in a country without universal health insurance for some women to get the money together to pay for an abortion before 15 weeks and that other people may have health concerns after that time. Uh, but it- it- it was somewhat of, uh, an afterthought for Justice Blackmun. It's been criticized by members of the court, beginning with Sandra Day O'Connor in 1983. It's been criticized by bioethicist, as Carter knows well, including bioethicist who are pro-choice. So it's relatively easy to make the case that viability is, um, looked upon less favorably, certainly, than the idea of a right to choose abortion. Polling would support that too, of course. People in the United States generally support a right to abortion much more in the first 12 weeks of pregnancy than they do later in pregnancy, certainly all the way to the point of viability. Um, and I thought the move that you could make was not necessarily to say that an earlier was supported, um, in, you know, by the original public meaning of the 14th Amendment or the text of the Constitution, but simply to make the same move that Casey made
[00:11:00] Mary Ziegler: in Roe. And- and Casey had said that in Roe, the trimester framework wasn't an essential part of the holding of Roe, um, and that the right to choose abortion until viability was. I- I think what Roberts was envisaging was a holding saying the right to choose abortion is essential but viability is not, sort of, you know [laughs] the Ca- almost Casey part two, if you will. Um, and I think the reason for that, uh, probably in- in Roberts' mind is that Roberts, um, given his jurisprudence philosophy, probably doesn't believe that there's a right to choose abortion entirely. I don't think that his training or his background would lead him to the conclusion. But he's also very much an institutionalism and I think is concerned about the kinds of questions that Justices Breyer and Soto mayor raised, um, particularly given, as Justice Soto mayor pointed out, that, um, the legislators in Mississippi explained that they had sort of changed their strategy in the case, um, because they believed they had the votes to overturn Roe entirely, and that lawmakers across the country had changed the kinds of laws they were passing
[00:12:00] Mary Ziegler: because they believed they had the votes. I think that's the kind of thing that preoccupies Roberts more so than it does the other justices. So, it may be for that reason that he thinks that a sort of multi-step overruling would be more appealing. Pragmatically, not necessarily, um, as a matter of principle. So, that was what I understood him to be doing. Uh, and what I- I think that the response... And I- I guess I want to... I want to be a little more circumspect than Carter in the sense that I'm not sure there were no takes, because Coney Barrett eventually seemed a little interested in Roberts' point. And she also was a little less forcefully with the justices questioning Roe, I thought, than Brett Vaughan was. And we'll talk more about that later. But if there's anyone to me who is a question mark after that argument, it was probably Barrett. I don't think a question mark in the sense of when the time comes, is she going to vote to overrule Roe? The answer to that to me is a resounding yes. But, will she think that time is in
[00:13:00] Mary Ziegler: this case? I- I would probably say yes, but I'm not a- as... I'm not 100% sure. I think there was a little bit of a question. And so I think, um, as the justices deliberate this more, I think she's going to be the vote that, you know, that probably Chief Justice Roberts courts for this viability strategy that we saw him outline yesterday.
Jeffrey Rosen: Fascinating. Thanks so much for that. Let's go in order of seniority. And our next justice is Justice Thomas, who asked a version of the same question to, um, all the advocates. And that was, uh, "General Stewart," he said, "You focus on the right to abortion, but our jurisprudence seems to focus in Casey on autonomy and in Roe on privacy. Does it make a difference that we focus on privacy or autonomy or more specifically, on abortion?" Carter, what was Justice Thomas getting at in trying to get the advocates to specify how abstractly and on what grounds they were basing the right to choose abortion?
Carter Snead: Yes. I think there were
[00:14:00] Carter Snead: several things going on with- with that line of questioning. The first of which is it underscores when he- when he talks about privacy, he says back in the old days, I think he- it was the phrase he used, we talked about privacy, then we talked about liberty. I think he, perhaps, was pointing to the shifting rationales, the shifting normative baselines for the right to abortion, which is, of course, relevant to the stare decisive analysis. How stable is the- is the line precedent? Does it in fact provide the stability and transparency and sustainability that stare decisive is meant to advance? Uh, and I think that by- by underscoring the shifting standards, he might have been meaning to subtly call into question the proposition that there has been a kind of unbroken, stable jurisprudence for 50 years or even 20 years. Um, but even more directly, I think he was thinking about substantive due process. I think he was thinking about what degree of abstraction do we use when we describe the right in question. Because we're going to ask if it's deeply rooted in the nation's history, tradition, text, and so forth of the Constitution. Um, and- and this
[00:15:00] Carter Snead: came up, of course, in the Zuckerberg case as well. The reason that the court in Zuckerberg, the assisted suicide case in which there was a nine-nothing determination that there was no substantive due process right to assisted suicide, was that, uh, the degree of abstraction in which they defined the right issue. It was clear to the justices there was no right to assisted suicide, uh, in our nation's history and tradition. But if you were to re- reframe it as some of the amic did in that case, like the philosopher's brief did or some others did, to a- a right of self-determination, a right of- the right to be left alone, well, the more abstractly you describe it, the more likely it is you can root it more deeply in the history and tradition. And it seems to me that, I think that's was partially what he was getting at. And I think the advocates who responded to him both wanted to formulate it not just in an abstract level of self-determination or freedom or autonomy, but I think specifically focusing on the- on abortion itself, which- which will be interesting as the justices consider eh- what to do next.
Jeffrey Rosen: Mary, what do you think Justice Thomas was getting on in focusing on the levels of
[00:16:00] Jeffrey Rosen: abstraction? Do you think he was entirely rejecting the possibility of substantive due process or just insisting that enumerated liberty rights be articulated narrowly? And how did the advocates respond to his question?
Mary Ziegler: Well, I think, uh, Justice Thomas asked questions yesterday [laughs], um, in a way that suggested that he not only wanted to overrule Roe, but to open the door to other rulings too. And this is not a surprise because as Carter knows, Justice Thomas has been a pretty vehement critic, not just of Roe, but of much of substantive due process jurisprudence. And so to contrast him, for example, with Justice Vaughan, who on numerous occasions would say things to sort of say... To distinguish a decision overruling Roe, for an example, for a decision overruling the court's jurisprudence on same-sex marriage or to say, you know, as he put it, "The Constitution is neither pro-choice nor pro-life." Thomas' questions, I think, um, would have been much more pleasing to, uh, folks who are pro-life in the sense that I think you could read what he was saying as applying to other substantive due
[00:17:00] Mary Ziegler: process cases or to more i- openness to the idea potentially of an argument for fetal personhood. So, I think his- his point was to suggest that the problems with the right to abortion, um, exist in part because the only way you can find it, in his view, or support, uh, the idea of a right to abortion in the nation's, um, history or in the original public meaning of the 14th Amendment, is to describe the right to abortion at a level of generality he finds untenable. But that, of course, is an argument that you could apply to many of the other rights that he finds dubious as a matter of substantive due process. So, I think it was- it was a- a way of sort of, um, making it seem as if there's no tenable right to choose abortion, but in a way that doesn't foreclose similar questions about other rights in the future. I think the advocates in the case, um, were- were not taking the bait in- in a way. I think, um, the General Preload and, uh, and Ms. Perelman were both, I think, um, invested in the idea that there is in fact a right to choose abortion, even if you describe
[00:18:00] Mary Ziegler: that right in the way I just did, quite specifically. Um, and we- were, I think, as Carter mentioned earlier, felt better about a court decision directly repudiating Roe than some kind of Roberts' style attempt to pass something off as a middle ground. So, I think Thomas' attempt to sort of discredit [laughs] the substantive due process enterprise by playing this game of levels of generality didn't work because it wasn't matching up with the agendas of really any of the attorneys who were there yesterday. But I think, um, Thomas' questions certainly weren't that revealing in the sense of he was probably as, I think as Carter mentioned last time, the justice about who, we knew the most going into this, and nothing he said really led any of us, I think, to change our minds about where his vote is likely in this case. Um, I think if anything, his questions were more interesting in the sense that they- they suggested that he might be open to more sweeping jurisprudential changes than just the overruling of Roe. And there were other moments that
[00:19:00] Mary Ziegler: made me think that as well. But this was certainly, um, one that I had my eye on.
Jeffrey Rosen: Justice Breyer is next, and he repeatedly and forcefully emphasized stare decisive and the court's legitimacy. He read at length from a passage in Casey vs. Planned Parenthood talking about the court's legitimacy and stare decisive. He enjoined citizens to read that passage as well. So I'll en- enjoin you, We The People listeners, to read it too, um, as I'd like you to read the entire oral argument transcript. Um, and Justice Breyer said, after reading from the Casey stare decisive, uh, selection, "I wouldn't want the court to overrule the stare decisive section of Casey." Uh, Carter, what did you make of Justice Breyer's focus on Casey and stare decisive and the court's legitimacy?
Carter Snead: Yes, I- I think that that's a very accurate description of Justice Breyer. He was clearly, uh, passionate about this question of the court's legitimacy. And he- and he clearly embraced
[00:20:00] Carter Snead: Casey as a clear and fair articulation of the goods at stake with respect to stare decisive, especially the court's reputation. He kept hearkening back to these, what he described as, watershed cases, really important cases that- that have to be taken very seriously. And if you're going to disturb those cases, you have to have a very, very [laughs], he used the phrase, "You have to be damned sure, uh, that, uh, that- that all the principles of stare decisive are pointing in that direction." I mean, it's clear that he's very- he's very committed to that view. He did say something interesting, um, in his remarks that struck me. Um, uh, and he said, "The American people decided to lay... to- to- to..." essentially, I'm paraphrasing, "Delegate to the court this particular question." It was a very odd formulation in its sense because I think that's, in some ways, the principle objection to this issue. And if you read Casey, I mean, the language of Casey is, "We are calling the nation's contending sides to embrace a common solution rooted in the Constitution," and to essentially sort of metaphorically put down their arms and accept this statesman-like
[00:21:00] Carter Snead: compromise that we've come to in Casey. And I think one of the arguments that was made, I think effectively, by the Solicitor General of Mississippi is that if that's what Casey was, uh, it's not been successful. It's not been successful as a way of trying to settle the matter, um, uh, in a- in a way that was satisfactory to- to both sides to- to do what Justice Scalia in another context described as giving the- the victors the satisfaction of an honest victory and the losers the peace of losing a fair competition. Um, instead it is- it- it... I think there's a real sense that the court arrogated to itself this- this decision making authority. And by the way, I think Justice Breyer, as passionate as he feels about it, it's a very contested position that- that Casey is in fact a fair articulation consistent with the overarching jurisprudence of stare decisive itself. Uh, there are aspects of the stare decisive analysis, such as it is in Casey, that are in tension with- with the doctrines both before and after Casey. Um, but, uh, but for sure, what Justice Breyer evinced was a very passionate and articulate defense
[00:22:00] Carter Snead: of the proposition that, um, the court's reputation is deeply connected to, uh, its judgment about disturbing past precedents that have this watershed status.
Jeffrey Rosen: Thank you so much for that. Mary, what do you make of Justice Breyer's focus on stare decisive and Casey in addition to quoting the language about not overruling under fire which would subvert the court's legitimacy? He said that Casey stressed there were just two watershed overruling, uh, namely Plessey overruled in Brown and- and Fechner overruled in West Coast Hotel. And, uh, he pressed the advocates about whether or not there should be any more. So, what did you make of Justice Breyer?
Mary Ziegler: I- I thought that was very much in keeping with what we would have expected from Justice Breyer. Justice Breyer, outside of the context of this case, has been, I think, uniquely concerned about per- growing, I think, perceptions that the court is partisan. I think there is no question that the court's popularity in recent months has taken a hit. Um, that seems to not primarily or
[00:23:00] Mary Ziegler: exclusively be about abortion, but about perceptions of the court's partisanship. I don't know to what extent that's the court's fault. I think a lot of politicians have been framing the court as partisan weapons in ways the justices themselves have not. But, the reality is there, and I think Justice Breyer is preoccupied with that reality. And I think his- his book that he's been touring to promote, um, is- expressed the same concern. And I think Justice Breyer, um, his questions, I think, picked up on the idea that it's- it certainly can be viewed as partisan to overrule past precedents, and that's all the more true when the past precedent is not only a watershed decision like Roe and Casey, but also one that has become uniquely woven into partisan politics in the way Roe and Casey have been. So Justice Breyer's comments about overruling under fire, you know, wouldn't with equal force to, say, a- a less well-known, politically anonymous but contested decision in, you know,
[00:24:00] Mary Ziegler: maritime law or something, right? That would not be perceived in the same way. So, I think Justice Breyer's point was to suggest that if the court overrules Roe, in Justice Breyer's view, that will be perceived as partisan and that may damage the legitimacy of the court. Of course, that causal argument, the argument that overruling Roe will damage the court's legitimacy or that not overruling Roe has preserved the court's legitimacy, all of those causal arguments are contested. Probably all of them, to some degree, are oversimplified because they assume that the primary or exclusive causal factor in determining the court's legitimacy is what the court does [laughs] about Roe and whether people... With no regard to whether people understand it. But, I think that was mostly what you were hearing Justice Breyer articulate. And I think that's also a reflection of the fact that Th- the liberal justices in general seem to understand that the- their conservative brethren were not convinced that- that as a matter of first impression, there was a right to choose abortion in the Constitution. So I think they were leaning pretty hard on concerns about precedent
[00:25:00] Mary Ziegler: as the sort of most likely way, um, to preserve something of Roe and Casey, from what I heard yesterday with little success.
Jeffrey Rosen: The National Constitution Center relies on support from listeners like you to provide our non-partisan constitutional education to Americans of all ages. For a limited time, every dollar you give to support We The People will be doubled with a generous one to one match, up to a total of $234,000, made possible by the John Templeton Foundation. Please visit constitutioncenter.org/townspeople. Donate, and thank you for your crucial support. That's consitutioncenter.org/townspeople, all one word, all lower case. Now, back to the show.
Well, let's turn to Justice Alito. He asked both whether the court could overrule a precedent
[00:26:00] Jeffrey Rosen: like Plessy simply because it was egregiously wrong without considering other factors. And he also asked about whether the abortion cases have any historical support, uh, does any judicial decision or state constitutional provisional in 1868 when the 14th Amendment was adopted, recognize that abortion was a right, liberty, or immunity. Carter, this was a question that we discussed last week. What did you make of Justice Alto's questions about the historical foundations for the right to abortion and also the responses of the advocates?
Carter Snead: I think not a lot of time was spent among the advocates trying to advance the proposition that the right to abortion is deeply rooted in the nation's history, tradition, and text of the Constitution, although this was an exception to that, right? There were a couple of moments when both Ms. Perelman and General Preload, um, made points about the- the deeply rooted nature of- of the right to abortion. And, uh, Justice Alito pressed that. He said, "Well, um, do you have any..." In fact, he... I think it was Perelman he asked
[00:27:00] Carter Snead: specifically. He said, "Do you have any cases at all which suggest that there was a- a liberty interest in abortion in the common law period?" And she was not able to cite a particular case. And also, he- he asked if she was- which article was she referring to in describing this historic record, and she couldn't cite the... It was Cyril Means who was the NARAL general counsel who wrote the article, uh, in New York, I think, is what the reference was to, but she was not... She said she didn't recall. She referred to the amicus briefs on, uh, on- on that aspect of the history, the Colonial common law history. Um, so I thought that was interesting. Um, more interesting, though, I thought, was his, uh, exchange with- with the Solicitor General on this question of we- would you have to have some concern beyond the- the manifest wrongness of an opinion, uh, before you overturn it. Um, and, uh, and they talked... And he gave a hypothetical, uh, Plessey vs. Ferguson. He said, "If- If Plessey vs. Ferguson were challenged only a handful of years after it was, uh, announced, would it have been wrong
[00:28:00] Carter Snead: not to allow more time to pass, more percolation, where more of the, um, the- the aspects of stare decisive in the- the sort of backward looking sense would be present?" And she- she initially said, "Well, no, Plessey is- is different." But then I think she ultimately took the view that no, you do have to have an additional concern beyond the egregiousness and grievous wrongness of an opinion, even if it's- even if it's something like, uh, like Plessey vs. Ferguson, which I thought was a- almost- a pretty startling thing to say. We do have examples of cases being overturned in short periods of time, uh, with, uh, based merely on the wrongness of the prior precedent, um,
[inaudible 00:28:36] Carter Snead: and others. I mean, there- there are some cases that- in which that's been true. Uh, but it was a pretty- a pretty dramatic thing to say that, um... Now again, it depends on how you define egregiousness. I mean, in Justice Vaughan's framework, egregiously wrong doesn't merely refer to the mistakes about the application of doctrine, but also includes concerns about the effects of- of a particular precedent. The one thing, also, I would say about Justice Alto's
[00:29:00] Carter Snead: interchanges with the advocates was he had a very interesting in- interchange with Perelman on the question of viability. He argued, again, a- along the lines of what Mary was suggesting a moment ago that both pro-choice and pro-life advocates sometimes argue that viability's unintelligible because the very important goods at stake, reproductive freedom, autonomy, full participation in the economic and social life of the country on the part of women on the one side and the right to life of the unborn child, uh, or the fetus on the other side, those interests don't change that much pre and post-viability. Why is viability therefore morally intelligible line as a matter of policy? And it was interesting, though, because, as a... I don't know if it was a strategy or as a matter of principle, Perelman, uh, did not- did not agree with the proposition that, uh, it was unintelligible. She argued that it was a principled line, that it was an intelligible line, and it was a line that should be sustained. So that was an interesting, uh, exchange between- between those, uh, as well I thought.
Jeffrey Rosen: Mary, what did you make of Justice Alito's historical
[00:30:00] Jeffrey Rosen: questions? Um, Justice Ginsburg used to talk about the French expression [inaudible 00:30:05], the staircase wit where you think of the perfect reply too late after the oral argument. But, if you were responding to Justice Alto's historical questions, as- as you did with Carter last week, eh- what would you say about why the right to choose abortion is rooted in tradition? And what did you make of Justice Alto's other questions about overruling and legitimacy?
Mary Ziegler: Well, I think- I think it's hard, if you're- if you're a really classic originality, right, and your approach is to say that, uh, we should look at only the rights that were clearly recognized as an orig- a matter of original public meaning in 1868, it's hard to make the case that there's a right to abortion. I think it's hard to make the case that there's a right to contraception because there was the federal Com stock Act. I think it's hard to make the case that there's a right that would apply to interracial marriage because many states had criminalized interracial marriage, not just across the South, but the West. So I think if we're being honest, a better case for a right to abortion, or frankly a lot of those rights,
[00:31:00] Mary Ziegler: is not an originality case. And there's this sort of we're all originality now, um, train of thinking here where you sort of have to make that argument. But I think it was hard for Perelman and- and Preload to make those arguments because the- the history is never as straightforward, as I mentioned in conversation with you and Carter last week. Um, the history at the time of the 19... When the 14th Amendment was written was sort of in flux. Um, states were introducing criminal laws in a way that would become much more uniform and homogenous by the end of the 19th century. Um, the exact status of the quickening line was still, I think, a bit ambiguous in 1868. So the idea that it was crystal clear that all states had come to the consensus that pre-quickening abortion was and should be criminal. I think the historical record is much more here than Justice Alto's questions suggested. I think they could have pushed back on that. And I think the reasons for the criminalization at the time, um, were not the
[00:32:00] Mary Ziegler: ones that Justice Alito likely had in mind. They were not, um, I think, necessarily centrally about the protection of the- of fetal life or the life of the unborn child. They were often about, uh, the protection of the sort of white population or race if- from, as people put it at the time, race suicide, as immigrants from places like Ireland produced at a quicker rate. Um, it was about women, uh, particularly, betraying their roles, as doctors at the time put it, as wives and mothers to, while still having children and being wives and mothers, pursue additional opportunities or limit their childbearing. And so, um, it- if we look at that and say there's a- we're looking at that as a source of- of our nation's deeply held principles and traditions, that's troubling, right? I mean, I wouldn't to say our nation's deeply held traditions and principles are steeped in racism and sexism. I would hope not, right? And I would think that many of the people, my colleagues who are pro-life, are not deeply sexist and
[00:33:00] Mary Ziegler: racist and have traditions that are much more admirable than the ones that were driving some of the laws that Justice Alito was referring to in the late 19th century. So I think history as a guide in the way that Alito suggested is problematic in a few ways, both because it calls into question other rights that were, of course, not at issue in this case, but that we may feel troubled, um, if those rights were reconsidered. And because history itself, um, as history so often is, was messy, um, in ways that don't lead to a kind of nice, neat constitutional conclusion. But, I think still, Justice Alito was- was smart to press that point because it's hard to make the case that states at the time the 14th Amendment was written viewed abortion as a fundamental right, much as they wouldn't have viewed the right to attend an integrated school or the right to marry a partner of the same sex or certainly the right to use birth control.
Jeffrey Rosen: Thank you so much for that. Justice Soto mayor is next. Uh, she produced one of the most quoted lines of the
[00:34:00] Jeffrey Rosen: oral argument. Uh, she said, "Will this institution survive the stench that this creates in the public perception if the Constitution and its reading are just political acts if the ban is upheld?" And she also emphasized that Roe and Casey were not unusual in reading the Constitution to protect enumerated rights. And she suggested that overturning Roe and Casey would call into question other substantive due process decisions including the contraceptive and gay marriage decisions. Uh, Carter, what did you make of Justice Soto mayor's questions?
Carter Snead: Well, I- I think the substance of her questions are certain- were certainly, uh, interesting. But I think the tone of the questions were, in some ways, even more interesting. She was- she was making a similar argument to Justice Breyer, but doing so in a much more pointed way. Uh, she was clearly animated, uh, on this issue. She told... She was, in some ca... I mean, she was interrupted the- the Solicitor General of Mississippi multiple times, in some cases to tell him that his briefs and papers didn't add anything to previously made argument in Casey. She said, "You just disagree with it." Uh, she talked
[00:35:00] Carter Snead: about, uh, a- a variety of things. Um, and some of them struck me as odd, uh, in- in questions of brain death and clinical data involving stimulation and pain responses. It- it seemed like an odd thing to bring up in a- in an appellate argument when there was no evidentiary hearing on these questions below, but there was some amicus briefs that- that spoke about that. But to your question, though, um, she did directly say to the Solicitor General, are- you are- you are just... Or she said, "My view is that you're just talking about substantive due process more generally and you want to throw it all out and there's all kinds of things, uh..." And this was telling, she said, "There are lots of things that are not in the Constitution that we have the authority as justices to- to identify as- as- as fundamental rights." And she ran through a list of those. And of course raised the concern that those would be endangered if the court undid Roe vs. Wade. But I will say that, uh, and this came up with Justice Barrett as well, we can talk about that in a moment, but the Solicitor General directly responded, said, "No, we're perfectly comfortable Zuckerberg standard. We're perfectly comfortable with the question of- of, uh, limiting
[00:36:00] Cater Snead: enumerated rights to those that are deeply rooted in the nation's tradition and history." Um, and as for the rights that she talked about, even if one could argue as- as Mary just did, some of those rights are not deeply embedded and thinking about contraception in particular, uh, he said, "Those... The stare decisive factors on those issues are- are- are very clear. Uh, they are clear rules, easily applicable. They've worked. There's no one challenging them. Um, and there's a great deal of reliance interest that's been built up and the stare decisive framework for those kinds of questions work- work out very differently than with respect to the question of abortion," which he argued and I- I'm persuaded by are unworkable and- and have been constantly shifting and have caused all sorts of problems, uh, as a result. So I think, uh, Justice Soto mayor was notable because she sort of amplified tonally the arguments made by Breyer. I will say one thing about her argument, and- and for that matter about Breyer's argument, that struck me. I think it misses a fundamental point about how vexed this debate is. One could equally say that sustaining a precedent,
[00:37:00] Carter Snead: uh, even when it was egregiously wrongly decided and even if we, for the sake of argument, suggest that stare decisive principles do not, uh, recommend retaining it, because you're worried about public disruption and public reputation is equally political, uh, and could equally be criticized on that grounds. And so there's really no way out of this thicket of the question of the court's reputation. If they sustain Roe and Casey, uh, they- they will be accused of simply doing so because it reflects the policy preferences that they prefer, which is pol- which is political and- and not consistent with the role of a judge. And if they overturn it, people are going to say it's just because you have a different composition on the court now and all you do is, uh, go with whatever political perspective. So you might say, uh, we're all critical legal theorists now or we're all legal realists now [laughs] in the sense that we- we don't think anything is other than the expression of power dressed up in legal language. And I think that, um, uh, I think that that's problematic, but I think it cuts both ways.
Jeffrey Rosen: Mary, Justice Sotomayor emphasized
[00:38:00] Jeffrey Rosen: the science in suggesting that, uh, nothing had changed since Casey and that only a small minority, a small fringe of doctors believe that pain could be experienced before a cortex is formed. What did you make of Justice Soto mayor's questioning?
Mary Ziegler: Um, I thought Justice Soto mayor sounded like she had completely given up on convincing any of her colleagues to- to join an opinion she would like and was sort of testing out ideas for a dissent. I think Carter's right that she was, um... She sounded upset. She sounded convinced that both, uh, the Solicitor General for Mississippi and her colleagues were abandoning what she saw as, you know, foundational principles. Um, and so I- I thought that was a- a telling sign of how the argument was going too. This was not someone who was trying to bring her colleagues to her side. This was someone who knew that that was mission impossible and was preparing, I thought, a dissent.
Jeffrey Rosen: Well, I think we have time for two more justices. And those are Justices Vaughan and Barrett. Carter, uh, what did you make of Justice Vaughan's questions, and in
[00:39:00] Jeffrey Rosen: particular, his much noted, uh, comment that many of the court's most distinguished moments have involved overruling prior decisions?
Carter Snead: Yeah, I think- I think that echoed the arguments, uh, he made, I believe it was in the Ramos case, in which he- he set forth his framework for stare decisive. He made a point of listing all of the big cases in which the court has in fact, celebrated cases in fact, in which the court has- had overturned prior precedents. Um, and- and I think just... I- I... Reflected what I think we all understood his approach to stare decisive was going to be and- and recapitulating things he'd said in the past. The most interesting thing to me about Justice Vaughan is that he did seem to be moving in a direction that- that was not along the lines of Chief Justice Roberts trying to- to find a middle pathway. He... Justice Vaughan, one of his hallmarks is- is- is being conciliatory to all the different perspectives involved. It's something that you see frequently where he... And he- and he did that in this case as well. He said to the advocates, especially the advocates on behalf of Jackson Women's Health Organization, he said, "Of
[00:40:00] Carter Snead: course there are deeply, uh, held and important values at stake here. Of course the goods are at stake for women are important. Uh, but equally the goods for- that the state is trying to defend regarding prenatal life are- are important to those citizens and to those governments as well. And so, it seems to me," he said, "That- that you can't accommodate both interests. And this is the source of the problem. Uh, you have to choose." Uh, and he expressed very significant skepticism about the Constitution empowering the court to be the- the arbiter of that choice. He described, I think as Mary mentioned earlier, he used a phrase that has come back, and is, I think, a very notable phrase, uh, scrupulous neutrality. He said that the Constitution is scrupulously neutral on the question of abortion. Shouldn't the court also be scrupulously neutral on this question? And that, I think, was a window. If that reflects his thinking, that- that's a pretty dramatic revelation. Because it shows that, I think, he is... He believes perhaps if- if- if I'm- if I'm right about this, that the- the sort of experiment
[00:41:00] Carter Snead: with the court regulating abortion pursuant to it- its- its- a majority of the court's interpretation of the 14th Amendment, um, is- has not been a success, and that in fact it's better for the country, better for the court, consistent with the Constitution, to return the matter to the political branches to resolve according to the democratic process.
Jeffrey Rosen: Thank you for that. Mary, what did you make of Justice Vaughan's questions?
Mary Ziegler: I think Carter's right. I think that was the direction Vaughan was taking this. I think he returned to this theme of constitutional neutrality several times. Um, I think it- it was a very... It felt like a very Vaughan thing to do. I think Vaughan often searches for ways to be, um, conciliatory and diplomatic while often, um, I think in ways that Chief Justice Roberts may not move it- move jurisprudence in the way he thinks it should go, much more quickly. And I think he was trying to say that the- the best way for the court to be respectful of everyone's position was- is to overrule Roe. I think that was kind of what I took from his comments. And it seemed quite
[00:42:00] Mary Ziegler: clearly that one of the two people whose opinions were the least clear going in to yesterday's argument, um, is quite clearly on the side of overruling Roe immediately, and that, in my opinion, was Vaughan.
Jeffrey Rosen: Well, our last, uh, justice, is Justice Barrett who asked whether Roe made sense as a matter of first principles, asked whether overruling Roe would call other lines of cases into questions, and argued that safe haven laws might mitigate infringements on mothers' liberty relating to parenthood. Uh, Carter, what did you make of Justice Barrett's questions?
Carter Snead: So, the first thing that struck me about Justice Barrett's questions were that she asked again directly the Solicitor General of Mississippi would these other precedents, Griselda, Bergeyella, etc., be imperiled if we overturned Roe and Casey? And he answered the question very directly, he said, "No, we're not arguing for that. No one's arguing for that. You can distinguish those cases both on the stare decisive grounds, but also importantly on the fact that none of those instances, same sex marriage, the use of contraception involved the intentional killing, uh, of an
[00:43:00] Carter Snead: innocent, uh, human life in process. Uh, and so there's a normative distinction as well." I thought that she was, uh... It was interesting and that she did press the advocates on the question of the extent of the burden, uh, of laws restricting abortion. Uh, she asked, "Do they only involve the question of the bodily imposition of pregnancy itself or do they- do they also involve the burdens of unwanted parenthood that, uh, were mentioned in Roe? And don't laws like safe haven laws do- go some way in- in alleviating that second burden, the burden of unwanted parenthood, when in fact... And leaving us primarily with the burdens of unwanted pregnancy?" I think the advocates, uh, took the view that no, in fact the burdens are not merely the bodily intrusion of preg- an unwanted pregnancy, but they also include, uh, concerns about, uh, unwanted parenthood, and women shouldn't be put to the choice of making an adoption plan for their children. That's one of the things, by the way, that- that I think the advocates from Mississippi argued have changed. The safe haven laws are- are relatively new. Adoption, of course, is not
[00:44:00] Carter Snead: new. But, uh, but safe haven laws is one things they cited as having changed since Casey even. Uh, finally, she... Her pushing back against what I thought was the intelligibility of the viability line, she asked one of the advocates would it be possible... Would it be if a- if a... She had a very interesting hypothetical. If a state supreme court had a- had a constitutional provision, a state constitutional provision that was identical to the 14th Amendment, would they be wrong if they set the balance at 27 weeks rather than viability? Would that be a mistake? Uh, and I thought... What- what I took her to be doing there was to try to press the- the advocates on their- on their firm grip on the proposition that viability's an intelligible line by proposing a separate line, a more- a more permissive line. And, again, they didn't really take the bait on that. They didn't... They- they said, "Well, viability is- is an intelligible line. We think viability is good." But I think what she was pressing on there, uh... I didn't hear her trying to think through other possibilities. Eh- What I thought, uh, she was doing in that instance was trying to see, uh, is viability an arbitrary line? Uh- uh,
[00:45:00] Carter Snead: are there even more per- permissive lines that would intelligible? And, uh, and I think there was- there was not a lot of engagement from the advocates in response to that question.
Jeffrey Rosen: Well, Mary, the last word is to you. Please tell us what you thought of Justice Barrett's questions, which you said at the beginning were among the most, uh, telling. And could you imagine Justice Barrett joining Chief Justice Roberts in anything short of overturning Roe and Casey?
Mary Ziegler: It's conceivable. I mean, I thought Justice, uh, Barrett's questions about reliance suggested that she may be ready to overturn Roe. Um, the sort of safe haven questions suggested that if there had been inequality interests in abortion rights that was strong, one that went beyond just the interest of in not wanting to be pregnant, which Justice Barrett seemed to suggest was not that significant, she compared it to, um, the interest in bodily integrity in refusing a vaccine, for example, that that- that equality interest had been mitigated by, um, developments in the meantime. And she in particular stressed safe haven laws. So if you think there is no
[00:46:00] Mary Ziegler: reliance interest or you don't think that there is a powerful equality argument for abortion rights, you're probably going to vote that there is, you know, it's right to overrule Roe. Um, I don't... Again, though, I thought her position was the hardest to read because as Carter mentioned, she did seem interested in this- in this viability question in a way that none of the other justices other than Roberts really did. And so I thought, um, she may have come into this certainly ready to change fundamentally what abortion jurisprudence looks like, but she may not be completely decided on what the change should be in this particular case.
Jeffrey Rosen: Thank you so much, Mary Ziegler and Carter Snead, for a deep, civil, and informative discussion about the oral arguments in the Doubs case. Uh, our listeners have been writing in to say that both of you exemplify the civil constitutional dialog about the most contested questions in America. And on behalf of all the We The People listeners, I'm very grateful. Carter, Mary, thank you so much for joining.
Carter Snead: Thank you. Thanks to both of you.
Mary Ziegler: Thanks for having me.
[00:47:00] Jeffrey Rosen: Today's show was produced by Melody Rowell and engineered by Greg Heckler. Research was provided by Michael Esposito, Chase Hansen, Sam Desai, and Lana Ulrich. Homework of the week, We The People friends, please read the transcripts in the Dodd case. Go to the Supreme Court website and download the transcript and read it. You'll learn so much. And thanks to Mary Ziegler and Carter Snead for having guided us through the extremely important oral argument in Doubs. Please also rate, review, and subscribe to We The People on Apple Podcast and recommend this show to friends, colleagues, or anyone, anywhere who is hungry for a weekly dose of civil, thoughtful, and illuminating constitutional debate.
And always remember, the National Constitution Center is a private nonprofit. We rely on the generosity of people like you from across the country who are inspired by our nonpartisan mission of constitutional education and debate. And that's why I'm so thrilled to be sharing
[00:48:00] Jeffrey Rosen: with you this crowdsourcing campaign that we're launching. Uh, thanks to our friends at the John Templeton Foundation, every dollar that you give will be doubled, up to a total of $234,000. I would so appreciate it if you could show your support for We The People and for all that we do by going to constitutioncenter.org/townspeople and giving any amount, $5, $10, or more, which will help us reach our goal of $234,000, and will continue to allow us to spread light and learning about the Constitution to all Americans. That's constitutioncenter.org/townspeople. On behalf to the National Constitution Center, I'm Jeffrey Rosen.
