Melissa Murray (4:03)

This nomination is not about whom I would befriend or with whom I would have lunch. It is not about how Brett Kavanaugh treats a handful of women from elite institutions. It is about real people on the ground, people like the women to my right and the people they represent who will not have lunch with Judge Kavanaugh, who will not meet with Judge Kavanaugh, but who will nonetheless depend on Judge Kavanaugh to protect their constitutional rights, to make decisions about their lives. As you've heard from women like Alicia Baker and Liz Weintraub, confirming Judge Kavanaugh to the Supreme Court would threaten people's ability to make fundamental personal decisions, including deciding whether to have an abortion.

Dahlia Lithwick (4:44)

Before coming to NYU, Professor Murray spent 12 years on the faculty at Berkeley. Eventually she served as faculty director of the School center on Reproductive Rights and Justice, and as Berkeley's interim dean, she teaches constitutional, criminal and family law. And she clerked for Justice Sonia Sotomayor. And it's lovely to have her in studio. Melissa Murray, welcome to the podcast.

Melissa Murray (5:04)

Thanks for having me.

Dahlia Lithwick (5:06)

So before we dive in deep, deep, deep on reproductive rights, can you start by just telling us what's your sort of hot take? What did you take away from last week's hearings?

Melissa Murray (5:17)

What struck me was the contrast between the majority expert testimony and the minority expert testimony. So the Republicans called a handful of people who I would say are experts in the law. Akhil Amar of Yale, for example, Ted Olson, who's a veteran D.C. lawyer, former solicitor general. But the Democrats were really interested in bringing real people to the table. So there was Rochelle Garza, who had argued the case Garza vs Hargan which was the abortion case that Brett Kavanaugh had decided as a judge of the D.C. circuit. There was Liz Weintraub, a disabilities rights activist, Alicia Baker, who was a pro life Christian preacher who was denied coverage for her IUD by her insurance company, which had a religious objection to providing that particular form of contraception. And then there was me. And so I was sort of the only kind of lawyer other than Rachel Garza, but the only sort of professors there to weigh in on some of the thornier questions of law. But I thought it was a really interesting contrast between real people on the ground who would be impacted by what Judge Kavanaugh might do as Justice Kavanaugh, as opposed to a lot of people who were sort of there as part of his social and political and professional professional milieu, who wanted to weigh in on whether or not he was a good guy, whether he was a nice guy, whether he was open minded. And they all testified that he was. But I'm not sure that was really the issue for most of the people listening.

Dahlia Lithwick (6:50)

I wrote a piece last week essentially making the same point that there was this sort of split screen. I was focused at the time on the protesters who are just, you can dismiss them as hysterical women who are not keeping with the protocol of the chamber, but they are also, I think, a kind of materialization of this real world impact on real people. You know, these were disability rights activists and women who are reproductive rights activists, and they're being dragged bodily from the chamber. And in some sense, that split screen of. But he's a really, really good dad. He's a, you know, he serves meals at the soup kitchen. And it's almost as though those two narratives can't even be mashed together. I mean, we can't even agree which story we want to tell.

Melissa Murray (7:35)

I think two things can be true at once. He is a nice guy. I know he's a nice guy. He's been incredibly kind to me. Don't know if that will continue after Friday. But he's a nice guy. He's a lovely guy, incredibly charming, smart, all of it. And yet he can still have these substantive views with which you can fundamentally disagree. And in fact, you can look his judicial record and see clearly that he has not always followed the law where he should have.

Dahlia Lithwick (8:05)

So in your testimony, one of the things that you talked about in several different ways is this idea that Judge Kavanaugh's record shows a very, very cramped reading of liberty rights and personal decision making rights that ignores existing precedent. But he kept responding over and over to those questions, Casey is precedent. It's precedent upon precedent. It's a precedent sandwich. And I wonder, does that mollify you? Just kind of using. And we should talk about what Casey is. But using that as the touchstone for I'm not disturbing any privacy rights.

Melissa Murray (8:42)

So Casey is a 1992 decision of the Court that reaffirmed Roe v. Wade, but in doing so, actually cut away at a lot of Roe's most important protections. So Roe made clear that abortion was a fundamental right entitled to the highest level of judicial scrutiny. So any kind of restriction on abortion was entitled to strict scrutiny, which meant that the state had to provide a compelling interest for imposing on the right, and the restriction had to be narrowly tailored, like there could be no less restrictive alternative for doing it. In Casey, the Court does away with the strict scrutiny standard for abortion and instead imposes an undue burden standard which basically allows the government to regulate abortion throughout pregnancy for particular reasons, namely maternal health and the potentiality of fetal life.

Dahlia Lithwick (9:33)

And.

Melissa Murray (9:33)

And again, the standard is much lower. Rather than having a compelling reason that is narrowly tailored, you need only show that the state has not placed a substantial obstacle intended to prevent the woman from getting an abortion. So it's a robust standard, but still lower than what was initially in Roe. And, you know, I found no comfort in Kavanaugh's assurances that he found Casey and wrote to be settled law. He talks about Roe frequently. Talks about Casey frequently in the Garza case. This is the case involving the undocumented young woman who wanted an abortion. But he doesn't actually surface the full panoply of abortion cases that were on point in that decision. So in addition to Roe and Casey, also at issue was 1979's Bellotti v. Baird, which says that the state cannot require a minor to obtain parental notification or even parental consent unless it provides an alternative to parental consent, the judicial bypass option. And in the Garza case, the young woman had actually completed all of Texas's requirements for an abortion and had completed the judicial bypass process, so there was no need for parental consent. And in his decision, Judge Kavanaugh kept coming back to this idea that we need to find a sponsor, and the sponsor was essentially a parental proxy. And he talked about her being alone in the country, needing support, needing a support network and the sponsor. The additional delay to find a sponsor would provide that. But the law does not require this. In fact, it says you cannot make her get parental consent or proxy for parental consent if, in fact, she's already completed this judicial bypass process, and she had. So that's one place where precedent is completely ignored, even as he talks at length about Roe and Casey. The other precedent that goes utterly ignored in the Garza decision is Whole Women's Health vs. Hellerstedt, which is a 2016 case, the most recent court pronouncement on the right to abortion. And it requires judges reviewing abortion restrictions to weigh both the burdens of a delay on the abortion right to the woman against the purported benefits that the state has for imposing those restrictions or burdens. There's no weighing of benefits or burdens at all in the Garza decision. No discussion of what it would mean for a young woman who's already waited four weeks since she initially made the decision to have an abortion, to wait an additional 11 days. No discussion of the fact that the additional time spent looking for a sponsor would require her to have a surgical abortion as opposed to a medical abortion, which obviously brings a broader array of complications, bodily complications. No discussion at all about what the benefits of the sponsorship process would be against the burdens it would impose, and utterly ignores this decision. And so, for me, it doesn't matter if you think Roe is settled, if you think Casey is settled, if you don't follow that to its logical conclusion, which is to apply the other precedents that are on point and equally well settled.

Dahlia Lithwick (12:39)

And that came after, and that refined the test in ways that. Right. So what you're saying is you can ignore Bilati, you can ignore Whole Women's Health and keep saying Casey, Casey, Casey. But if you're not looking at those things, I mean, there is a way in which this goes back to, you know, John Roberts, his confirmation, where he would talk about super precedent and super duper precedent, which is, I guess, the earlier version of precedent upon precedent. But there's a way in which sort of reified these older cases, while completely ignoring the cases that refine the tests or create more robust tests, is a little bit of a sleight of hand, you're saying?

Melissa Murray (13:14)

It's a total sleight of hand. And you know, Kavanaugh has actually held John Roberts up as an exemplar, and that should be the first signal to people like Collins and Murkowski that all is not right here. If John Roberts is your exemplar for what it means to uphold reproductive rights, then we're in a bad place. John Roberts said in 2005 that he found Roe to be the settled law of the land. Casey was a super president, precedent on precedent, and then he voted with the majority to uphold the partial birth abortion ban in 2007's Gonzalez v. Carhart, which was the first time the court had ever upheld an abortion restriction that did not have an exception for the woman's health. He also voted with the dissenters in 2016's Whole Women's Health vs. Hellerstedt, and he would have upheld the two, challenged Texas restrictions that would have shuttered 75% of the clinics in Texas, would have required Texas women to drive over 100 miles to get an abortion, and if it had been upheld, would have closed the only abortion clinic left in Mississippi. I mean, if that's what it means to support reproductive rights, we're in bad straits.

Dahlia Lithwick (14:24)

And it's worth noting here, I guess. I think we've said this on the show before, but it's certainly worth noting that this very spring we saw the Supreme Court overturn abood what was, you know, a case that. That was the defining case on, you know, union settled law. Settled law about the same era as Roe. And they did it with a stroke of a pen in the Janus case. So the notion that, you know, these cases, because they're 50 years old and therefore they have this abiding, you know, they're enshrined forever, the court simply just said, nah. So the notion that that's not on the table seems a little bit fatuous. Right?

Melissa Murray (15:02)

Well, I'm surprised that no one really talked about the shift from a. And then there's Friedrich in the middle, where they sort of indicate that they're like aboods on the table. And then later you have Janice. I mean, these are all cases involving public unions and a completely separate issue. But the idea that you can take a precedent, I think it's from 1973 as well. And, you know, with the stroke of a pen, it's off the table, and there's a new precedent in place. I mean, if that's what it means to treat this as settled law, that's terribly unsettled.

Dahlia Lithwick (15:32)

You've talked about Garza a couple times. I've talked about it Garza a couple times. But not everybody is as in the know as you are. Garza was kind of an astonishing case in that it only just happened in this last year. And it becomes really the central thing that we know about Kavanaugh.

Melissa Murray (15:48)

Can.

Dahlia Lithwick (15:49)

Can you just give us the. The backstory?

Melissa Murray (15:50)

So the Garza case involved a young undocumented woman. She was 17, Jane Doe, who was apprehended crossing the border. She was placed in federal custody of The Office of Refugee Res placed in a detention center. She discovers she's pregnant while in the detention center. Judge Patricia Millette's dissent from the three judge panel really recounts her story in quite excruciating detail. And it's really worth telling as she's been abused by her parents in her home country. She comes to the United States, she doesn't feel she can tell her parents that she is pregnant. She does not want to continue the pregnancy once she's in the United States. And she makes the decision with the help of her guardian ad litem and her attorney ad litem that she wants an abortion. Ad litem is basically someone who's deputized to act on behalf of another person, typically a minor. Her guardian ad litem and the attorney ad litem sort out the funding for having this procedure, sort out how she's going to get there, get to the appointments in advance of the procedure, all of it. So there's really nothing for the government to do but unlock the door. But there is an ORR policy that says they're not going to allow people held in federal detention to have abortions without the approval of Hargan, the guy who's in charge. So he does not give the approval again because, you know, the government does not want to facilitate abortion. And again, the term facilitation is really interesting here because there is no facilitation. The government's not funding it. The government is not taking her anywhere. All the government has to do is unlock the door. I mean, it could not be more passive. Refuses to unlock the door. Her guardian ad litem and her attorney ad litem file suit. It gets all the way to the D.C. district Court which agrees that she should be let out of federal custody to have this procedure, seeing as how she has fulfilled all of Texas's requirements for an abortion.

Dahlia Lithwick (17:50)

Texas requirement. She gets a waiver in Texas.

Melissa Murray (17:53)

And Texas has a raft of abortion regulation. So she's undergone state mandated counseling, she's had a mandatory ultrasound, she's had a delay, already gone through a mandatory waiting period, and as a minor she's completed the judicial bypass procedure. So she's gone before a Texas state judge, told this person that she wants an abortion, explained her reasons. The judge has heard her and made a decision that it's in her best interest to have the abortion. And so everything has been completed. All the government has to do is literally let her out of custody. And it won't. The D.C. district Court says that the government has to let her go. Then it goes to the Three judge panel in an emergency hearing and two of the judges, Judge Karen Lacraft Henderson and Judge Kavanaugh say that no, they're going to vacate the lower court's order and they're going to keep her in custody. And Judge Henderson writes an opinion wholly unwarranted, totally off the reservation, about how undocumented persons actually don't have a right to an abortion. Patently false. The Constitution does not reserve rights for people who are citizens specifically. In fact, there have been decisions that say that your constitutional rights do not depend on your citizenship status. So that was just, you know, superfluous. And to his credit, Judge Kavanaugh does not join that opinion. But it's also not the issue on the table. Instead, he writes a separate opinion where he says, and he characterizes this as sort of trying to do the best he could, strike a compromise in the hearing testimony. So he issues a decision that imposes an additional 11 day delay. So he surveys the whole scene and says, what's really needed here is for this young woman, who's alone in this country, doesn't speak the language, to have a sponsor. Like, so we're going to give an additional 11 days for the government to find a sponsor.

Dahlia Lithwick (19:49)

Stop for one second, Melissa, and just explain, if she's already got a lawyer and she's got a guardian ad litem and she's got all these people, what is the sponsor that the government is looking for? How is that different from these other people?

Melissa Murray (20:00)

So a sponsor in this parlance is typically a family member in this country or a friend or someone who has some established bond with the person. The government's already been looking for a sponsor for six weeks and they cannot find a sponsor. And in fact, it's unlikely that they're ever going to find a sponsor. So despite the fact that she's completed all these requirements, there's no sponsor in sight. He imposes this additional delay of 11 days for the locate for the government to locate a sponsor. The government didn't even ask to find a sponsor. They were just like, we just don't want to let her go. We don't want to facilitate anything. So he's actually supplied a new interest, one that has never been recognized by the Supreme Court for imposing a burden on the abortion right. And he then says, you know, if at the end of those 11 days a sponsor can't be found, well, she can just go back and relitigate. So then we just start from the beginning again and we go back to the district court and we Proceed. And so.

Dahlia Lithwick (20:58)

And the clock is ticking. I mean, what's important is that at some point she has, you know, materially lost the ability in Texas to get legal abortion.

Melissa Murray (21:07)

Exactly.

Dahlia Lithwick (21:08)

This is not, in theory, we can all agree more people giving us guidance is good, but the clock is ticking on her.

Melissa Murray (21:14)

The clock is ticking. And these additional requirements are actually not required by law. And so I think this case says everything that you need to know about Judge Kavanaugh on the question of abortion. The rest is really filler. But what amazing filler. I mean, you have his statement before the American Enterprise Institute where he lauds Chief Justice Rehnquist's dissent in Roe vs. Wade. That's the opinion he really values as one that gets the logic right. I mean, when you add that to the decision in Garza, I think it's obvious what this person will do if he's on the Supreme Court vis a vis reproductive rights.

Dahlia Lithwick (21:58)

So, Melissa, what Judge Kavanaugh said when he was pressed, and he was pressed by many Senate Democrats about his Garza decision is he's like, look, look, there was no precedent. So I just looked to the line of parental consent cases. That's what I had. And I made the best of a bad situation. That's not cutting it for you.

Melissa Murray (22:18)

I mean, I guess I just don't buy the. Aw, shucks. I tried my best. I was really without a map here. There was a map. Bilotti v. Baird is directly on point. It says specifically, once you have provided this alternative of judicial bypass, you don't have to require parental consent. You can't require parental consent. And then to impose this requirement of a sponsor which is a de facto parent. And that's how he talks about it, this idea of a support network for her, it's a de facto parent. It goes above and beyond what Bellotti vs Baird would have required. And then to never talk about what that delay would mean for her, what the burdens would mean, and whether the benefits of this support network that might never materialize would be against the delay she would experience, that clearly undermines the understanding that we have from Whole Women's Health versus Hellerstedt. So the idea that there's no precedent, there's no map to follow, that's patently false and disingenuous.

Dahlia Lithwick (23:18)

And I think Senator Booker, Cory Booker from New Jersey, really keyed into the fact that. So then the DC Circuit reverses the decision you've just described, and Judge Kavanaugh writes a pretty pointed dissent. And in it, the phrase abortion on demand shows up and Cory Booker starts saying, look, that's a dog whistle. Everybody knows what abortion on demand means. This case is not in any way inflecting on questions of women being able to get abortions on demand. Did you read that dissent as like deliberately trying to audition for this gig?

Melissa Murray (23:55)

So I don't want to speculate about why he wrote the decision that he wrote in dissent to the en banc opinion. I agree with Senator Booker that the terms abortion on demand are meant to signal something to a particular constituency, namely the pro life, anti abortion constituency. This was never a situation where a woman went to Texas and got an abortion on demand. I mean, the time spent trying to fulfill the requirements, it was so much to do. It could hardly be characterized as abortion on demand. Like that was a dog whistle. Some people have made a lot of the fact that after this decision was issued, suddenly Brett Kavanaugh's name appeared on that Federalist Society Heritage foundation list of acceptable judges that could be appointed under a Trump administration. And you know, I'm not in those circles. I don't know how those decisions are made, but for some people, it looks unnecessarily coincidental to have issued such a sweeping dissent and then suddenly found yourself at the top of a list of potential appointees.

Dahlia Lithwick (25:04)

The other kind of dog whistle that probably every single person who watched a two minute clip of these hearings knows about is when we were talking for the Priests for Life case. And in discussing that, one of the things that Judge Kavanaugh said was he referenced contraception as, quote, abortion inducing drugs. And everybody flipped out and said, this is him saying that he thinks all contraception must be abortion inducing drugs. I think you and I agree, I'm watching you roll your eyes. So I think you and I agree that was not the gotcha it was meant to be. I think he was trying to characterize the position of the priests in that case. Right.

Melissa Murray (25:46)

I actually think he's been unfairly pilloried for that. I think you're right. The priest characterized IUDs and other kinds of contraception as abortion inducing, aborto facience, if you will. I don't think he was saying that that's what those forms of contraception are. Just simply sort of reiterating and rehearsing the Priests for Life argument. That said, I don't think we ought to let him off the hook for the Priests for Life decision.

Dahlia Lithwick (26:12)

So talk about that case.

Melissa Murray (26:14)

Well, so this is a case kind of in the mode of Hobby Lobby, which was a 2014 case challenging the contraceptive mandate of the Affordable Care act and Hobby Lobby, they own a bunch of craft stores across the country, objected to the contraceptive mandate because they are religious, and they object to providing certain forms, four forms of contraception, including the iud, to their employees at no charge. And so, in a decision by the Supreme Court, the court agrees with the objecting employers that they should not have to provide the necessary contraception because doing so would burden their rights of free exercise, their religious rights. So instead, the government provides an accommodation process. And, you know, we've seen this discussed in lots of other contexts. So basically, if you are a religious employer, rather than scrapping the contraceptive mandate altogether, what you need to do is let the government or your insurance provider know that you object to the provision of certain forms of contraception on religious grounds. And instead, the government or the insurance company will provide the contraception to the employee at no cost to the employee. I will note that under the Trump administration, the bandwidth for refusing to comply with the contraceptive mandate has widened to go beyond religious objections to any kind of moral objection. So, again, a much more elastic understanding of what it means to object to the provision of contraception in Priests for Life. This group, Priests for Life, is obviously religious. They're Catholic, and they object to providing the contraception, but they also object to the accommodation procedure. They object to simply notifying the insurer and the government that they have this religious objection. And their point is by simply saying they object, they are telling the government, and then the government or the insurance company provides the contraception. And so their act of informing the government or the insurance company is what facilitates the provision of contraception to the beneficiary employee. And the D.C. circuit, in taking up that case, was like, I think you may have gotten the. This whole business of how accommodation works wrong. Like, you don't trigger the provision of contraception by notifying someone that you object. The ACA triggers the provision of contraception. It's a statutory right. Like, you don't trigger it. You just make clear and evince your objection. And so they were, you know, they ruled against the priest. But Judge Kavanaugh writes a dissent, and Judge Kavanaugh, in that dissent, takes seriously the priest's understanding of the accommodation process, even though it's obviously mistaken. And it relies on sort of a faulty understanding of how the accommodation works and what actually triggers the provision of contraception to the beneficiary. And he defers to the priests and says that, you know, this is a burden on their rights of religious exercise to have to notify the government. I mean, it's signing a form like that's a burden on religious exercise. And the government should be able to provide some other alternative, some less burdensome alternative. I don't know what that alternative would be. I do know that identifying that less burdensome alternative would have required the federal government to completely reorient the accommodation process, something that they had been tinkering with and trying to figure out so as to allow the coverage to happen without burdening, objecting employers for some time. But this decision, which defers wholly to the employer and its mistaken understanding of the accommodation process, would have required the government to do that, just scrap the accommodation process as it existed and find something new. And that, I think, is actually worth thinking about. I mean, like, just broad deference, even in the face of faulty understanding and indeed a mistake in order to reach this outcome.

Dahlia Lithwick (30:25)

One of the interesting through lines, you've now talked about two cases where the government objection in Gaza is this facilitation, AKA opening the door. And now talking about priests for life, where the priest's objection is facilitation, AKA checking a box, signing a form. And I think that it's worth just pointing out that you can be solicitous to the point that you are deferring to some entity, saying, I just think I'm facilitating and I think it's a sin. And it does feel as though Judge Kavanaugh has such an incredible solicitude for those arguments about facilitation at the expense of, like, meaningful costs to third parties here. Right?

Melissa Murray (31:09)

No, I mean, I thought Alicia Baker said it best. In order to take seriously the priest's claim, I had to pay $1,200 out of pocket for an IUD. I'm a pro life Christian. I'm waiting till marriage to have sex. We're about to get married and we get socked with this $1,200 bill for the IUD my doctor told me was the best option for my future husband and I to use. And Now I'm paying $1200 when I'm not supposed to pay anything.

Dahlia Lithwick (31:39)

I'm going to take a moment to talk Slate plus membership benefits, because if you're hearing this, you're listening to the regular version of our show, which is thank you. But if you sign up for Slate plus, you can enjoy the Slate plus version, which is commercial free, an uninterrupted amicus just for you. And as a Slate plus member, you'll get access to bonus segments and extended versions of your favorite Slate shows. It costs a mere $35 for your first year, and you can sign up free for two weeks just to check it out first. And not for nothing, signing up for Slate plus also means you'll be supporting this show and all of the journalism we do here at Slate. Slate. Look, we know you value our coverage and you know how urgent this work is. And you know, I hope that we need your help to do this work. So sign up for Slate plus and help secure Slate's future. To learn more and to begin your two week free trial, go to slate.comamicus+ and now back to our conversation with NYU law professor Melissa Murray. The one other area of doctrine, and this is weedy, but, but I think it's important that has come up in these conversations is Glucksberg. Dun, dun, dun. But I think there's been a real question that has arisen because I think that one of the things that Judge Kavanaugh kept using as a touchstone for how he thinks about unenumerated rights is this case. Glucksberg. So I want you to just talk to me like I'm seven and explain first of all what, what unenumerated rights means and then explain why a lot of people were very, very concerned that he is citing, as I think he said in a colloquy with Ted Cruz, all roads lead through Glucksburg. Why that raises red flags for you.

Melissa Murray (33:27)

Unenumerated rights are rights that are not explicit in the text of the Constitution. And this always gets textualists and originalists up in arms. You know, if it's not in the Constitution, we shouldn't uphold it. It's not there. There's a lot of stuff in the Constitution that's not there. Executive privilege not specifically denoted in the Constitution. And yet we, the court has implied a qualified executive privilege to flow from Article 2's Grant of Power to the executive. So the idea that something's not in the Constitution should not hold, that it's the Constitution is somehow exhaustive in what it provides. Like lots, there are lots of instances where we've actually interpreted the Constitution's grants to include things that aren't specifically enumerated. And the question of liberty is another place. So the 14th Amendment and the 5th Amendment both have a grant of liberty. And they just say that, you know, the government may not deprive the individual of life, liberty, and property. Pretty broad, pretty vague. Liberty, liberty, you be the judge, whatever that means. Right. Historically, and at least since the 1920s, if not slightly earlier, the courts Interpreted that grant of liberty to one, allow parents to direct the upbringing of their children in the manner of their choosing. Later, in 1965, in Griswold versus Connecticut, that Grant of liberty is sort of reframed as an understanding of privacy that would allow married couples to use contraception without undue state interference. In 1972, Eisenstadt v. Bear, that grant of privacy is expanded to include the right of unmarried persons to use contraception. In 1973, in Roe, it's expanded to include the right to an abortion. And in 2003, in Lawrence vs Texas, it includes the right of individuals to be intimate with the person of their choosing, including a person of the same sex. And then, of course, in 2015, the right to marry, which is also encompassed in that grant of liberty, is broadened to include the right of individuals to marry a person of the same sex. So from that one grant of liberty, we've actually acknowledged and recognized an array of rights of personal decision making. And, you know, scholarly side note, one of the reasons, like what the through line through all of those cases is this idea that the government cannot compel you to adopt its vision of the good life. I mean, to do so would be kind of totalitarian. It can't tell you that your children can't learn German. It can't tell you you can't send your children to parochial school. It can't tell you to become a mother if you don't want to. It can't tell you how that your marriage is going to be procreative. The government can't impose its vision of the good life on you. Obviously, when you think about whether or not these rights are fundamental, you have to have some kind of grounding in it. And, you know, historically there have been lots of different schools for thinking about unenumerated rights rights. One comes out of a decision called Palco, where the second Justice Harlan talks about this idea of the concept of ordered liberty rights that we would always sort of understand to be implicit in what it means to have liberty in a democratic society. So the right to marry is never talked about in the Constitution, but we would understand it to be a basic civil right, the right to have children or to raise a family, likewise a basic, basic civil right. And the second Justice Harlan also talks about that in his concurrence to Griswold, continues with that theme. The Glucksberg case is another intervention later. I believe it's probably, is it the late 80s, early 90s Glucksberg. It comes up in the context of assisted Suicide. And the Court in that case says that really the decision has to be of what is or is not a fundamental right if it's not enumerated. Turns on the question of history.

Dahlia Lithwick (37:31)

1997.

Melissa Murray (37:32)

1997. Okay, so it's a 1997 case, and the question is of what is a fundamental right. Turns on whether it's in our tradition and history. And this is the brain work, I think, of the more conservative wing of the Court, with a couple of swing justices like o' Connor thrown in for a good measure. But it's part, I think, of this jurisprudential creep to dismantle Roe versus Wade and some of these other rights, including Griswold. And the idea here is rights like abortion or the right to contraception cannot be part of the history of liberty or historic tradition in line with liberty, because historically they've been criminalized. Right. So that's. And they talk about this in the context of assisted suicide. Judge Kavanaugh, in the hearings, presents Glucksberg as though it's settled. It's far from settled. It's incredibly controversial. Still in tension. Not everyone believes that this is the way that you think about unenumerated rights. Justice o', Connor, even as she concurs in the outcome in Glucksberg, talks about there are a lot of places where the Glucksberg logic just would not lead you to the appropriate outcome in light of our precedent. So she talks about this like there are some questions the Glucksberg test doesn't answer correctly. And then if you Fast forward to 2015 and Obergefell v. Hodges and Lawrence, for that matter. In 2003, Justice Kennedy, who is perhaps the Court's most prolific discussant of questions of liberty, never says anything about Glucksberg. The idea that the right to marry includes the right to marry a person of the same sex. He doesn't even discuss the idea that same sex marriage was a criminal matter and procedurally barred in most jurisdictions. He talks about how the right to marry has evolved over time. Marriage has evolved over time. So change. But to say that this is the test and everyone follows it and all lines lead, all roads lead to Glucksburg. I don't know what car you're driving.

Dahlia Lithwick (39:32)

So, Melissa, in the pantheon of Ro. Casey. Ro. Casey. Ro. Casey Griswold slips out a little bit. Can you tell us about what Judge Kavanaugh was saying about whether, say, the right to contraception is an immutable right?

Melissa Murray (39:49)

Sure. So Griswold versus Connecticut is a 1965 case that struck down a Connecticut law that would have prevented married people from using contraception. And in that case, Justice Douglas, who wrote for the majority, famously announced this right of privacy emanating from various constitutional guarantees like the third Amendment, fourth Amendment, fifth Amendment, ninth Amendment. So sort of an amalgam of the penumbra, the penumbras of all of these constitutional guarantees. So a right to privacy stems from this. And in 1972, the court expanded that to allow unmarried people to use contraception. What I thought was really unusual about the hearings is that typically most nominees stay away from criticizing Griswold, whatever their priors are. They know to stay away from Griswold because it is fairly well settled. The idea that married people could not use contraception is pretty much beyond the pale. Like no one would allow that. And yet Judge Kavanaugh came before the Senate Judiciary Committee and when asked about Griswold, would not say he agreed with the majority opinion, which I thought was surprising, and then did say that the decision he found most compelling in Griswold was Justice Byron White's concurrence. And Justice White's concurrence is interesting because although White agreed with the outcome invalidating the challenged Connecticut law, he had different reasons for doing so. And basically what he said was that he only agreed insofar as the prohibition infringed upon the rights of married people. He felt that the state had broad authority to prohibit contraceptive use in order to deter promiscuity and to prevent illicit relationships, I.e. non marital relationships. So stopping people from being promiscuous and stopping unmarried people from having sex, that's the opinion you think is right on in Griswold? That shocked me. It shocked me that more senators did not latch onto that and probe it. Because as someone who's watched the hearings for a long time, I can remember only one other time when a nominee challenged Griswold versus Connecticut, and that was in 1987 when Robert Bork came before the committee and talked at length about his many writings criticizing the right to privacy, criticizing Griswold versus Connecticut. And in making those statements, suddenly the whole Senate Judiciary Committee, or at least the majority of them, was like, wait a minute, this guy is out of the mainstream. And Robert Bork was borked, given rise to a new verb around confirmation hearings. And his nomination failed. And Justice Anthony Kennedy instead got that slot.

Dahlia Lithwick (42:39)

Before I. Before I send you on your way, I think I want you to address what I think has become the central kind of false binary in this whole conversation around reproductive rights, which is he's going to either overrule Roe or he's not going to overrule it. Right. It's either precedent or it's not precedent. And people like you and I know full well that in many, many, many states, Roe is all but gone, even while it is good law. So I think, I mean, part of me is just like, it doesn't matter, you know, whether you say the magic words, you know, Roe is precedent of the court or, you know, I have no quarrel with Casey. Those are, those, those don't address the question I think you were trying to raise in your testimony, which is there are a million ways to kill Roe. What do we, how do we deepen the conversation in ways that make it, you know, this is not a yes, no matter. There are many, many cases in the pipeline that could end Roe without formally ending Roe, Right?

Melissa Murray (43:47)

So I think in that respect, all roads go through Judge Kavanaugh to basically making abortion inaccessible. So on the one hand, there is the fear, I think, still a very real fear, that Judge Kavanaugh will provide the crucial fifth vote for overruling Roe, for saying Roe v. Wade was improperly decided. It is now overruled. Right. And he's talked about that Supreme Court justices can overrule precedent. He said this, right?

Dahlia Lithwick (44:13)

There's a memo, it turns out, yeah.

Melissa Murray (44:15)

There's a memoir. So I think that's very much on the table. But even if, and I think the real critical player here is John Roberts and not Brett Kavanaugh, I think. Justice ROBERT Chief Justice Roberts is so acutely concerned with the Court's legitimacy, as he rightly should be. I don't think he would vote to overrule Roe just in the same way. I don't think he was willing to provide the vote to scrap the ACA and take, you know, so many people off of, of health coverage. So I think Roberts is really the one to watch there. I don't think he's ever going to utter the words Roe versus Wade is overruled. But it doesn't matter, because instead he can he, Roberts, can continue doing what he's been doing since 2005, which is to basically hollow out the existing right, introduce a reduced standard. So take it from the undue burden standard to something more like rational basis review, which would allow the Court to be as deferential to states imposing abortion restrictions as just Kavanaugh was to the priests for life. And then you basically have a standard where everything gets upheld and abortion is Basically inaccessible. I mean, to see what that world looks like. Just look at the counterfactual in Whole Women's Health. If Roberts had had his way, he joined three dissenters in whole or two dissenters in Whole Women's Health, and they would have upheld a series of restrictions that basically shuttered three fourths of the clinic in the second largest state in the Union. It would have required women to go over 100 miles to obtain abortion and basically isolate abortion providers in major metropolitan areas in Texas. And it's not just abortion. When you shutter clinics, you're shuttering basic health care for people who don't have access to private physicians. So it kind of doesn't matter, as you say, for access, where. I think it does matter, and I think this is what Roberts understands. If they overrule Roe, suddenly there's a flashpoint around which people can unite and mobilize. 70% of the American public, more than 70%, agrees that Roe vs. Wade was properly decided and that there is a right to an abortion. If you overrule Roe, you will inflame all of them. And I think there would actually be a quite significant response this way. By just gradually undercutting it and undermining it and strangling it, you avoid that political backlash and you get the same.

Dahlia Lithwick (46:42)

Outcome, and it's worth flagging. Melissa. I think that wealthy women in America, wealthy white women in America have always been able, regardless of what the law was, to procure contraception and abortion, that this will fall heavy, as it did in Texas when those clinics were closed. It falls heaviest on rural women and poor women and women of color. And it's just unbelievably painful to say it, but those women were not at that hearing.

Melissa Murray (47:12)

Well, so they were.

Dahlia Lithwick (47:14)

They were the ones being dragged.

Melissa Murray (47:15)

Well, they were being dragged. But, like, think about the witnesses. I mean, the witnesses make your point so clearly. For Judge Kavanaugh, there's Louisa Gary, his classmate from Yale, who runs with them, and they've completed a zillion marathons together. And he's a great guy, even though she's a Democrat. And they don't share the same ideological perspectives, but he's a good guy. There's Colleen Rose Syndak, who was seated to my right. She took his class at Harvard Law School. He had a lot of office hours. He was very accessible, great to students, like, always made them argue both sides of the case. He's a really great guy. Those women, if they were ever in a situation where they needed reproductive care, could figure out how to do it. They have the means, they have the education to figure it out. The other women who were there, Rochelle Garza, who represents undocumented people at the border in Brownsville, Texas, Liz Weintraub, who is intellectually disabled. Alicia Baker, who is a pro life preacher working with youth ministries in the middle of the country. Those are not the people who are going to be able to drop everything and fly to Switzerland and get an abortion or go to their private doctor and figure something out. And those are the women we ought to be concerned about.

Dahlia Lithwick (48:29)

So very last question, I promise. But based on what you heard and saw last week in those hearings, do you feel like this issue was sort of fully aired and thought through and that we know what we need to know, or do you just feel like it was the sort of standard kabuki half questions, bad answers, blah, blah, we don't know what's happening.

Melissa Murray (48:57)

I think some of the Democratic senators were really pointed in their questioning, really came back to a lot of things. I was really impressed with Booker and Harris and Hirono who asked, came back with really good follow ups, asked a lot of questions of me, which gave me an opportunity to speak on these questions as well. I will note none of the majority senators asked me anything and I don't think they wanted me to go on at length about what I saw as the problems in the record. So good use of your time, I guess, gentlemen. All of them, gentlemen. But there is a kind of kabuki theater quality about it. I hope the American people saw what's at stake because we are never, I think, going to have another opportunity to really talk about what this means before Roe is actually a hollow promise or overruled entirely. This is the last chance, the last station for us.

Dahlia Lithwick (49:57)

Melissa Murray teaches constitutional criminal and family law at NYU Law School. Before that that, she spent 12 years on the faculty at Berkeley. She clerked for Justice Sonia Sotomayor, and she testified last week at the Kavanaugh hearings. Melissa, thank you so much for your time today.

Melissa Murray (50:14)

Thanks for having me.

Dahlia Lithwick (50:16)

So before we leave you today, I wanted to share just a few little snippets from an onstage conversation. I had the pleasure of hosting this Wednesday evening with Justice Elena Kagan at Brooklyn's Hanasenish Community Day School. Now, Justice Kagan is really precluded from talking in detail about political or ideological issues, but she was willing to answer my question about the ways in which this is a really perilous time for the Supreme Court.

Justice Elena Kagan (50:45)

This is very hard. I mean, I agree with you that this is in some respects a dangerous time for the Court. And it's because I think. I think people increasingly look at us and say this is just an extension of the political process.

Dahlia Lithwick (51:03)

Justice Kagan also talked a little bit about why, in her view, this moment feels particularly fraught.

Justice Elena Kagan (51:09)

The danger for the Court now is if it looks as though there are these pretty predictable divisions. And, you know, I do want to sort of step back and say on a ton of stuff, we agree, a ton of stuff. But there are a set of cases every year, and they are some of the cases that people care about most, where we have different views about how to interpret the Constitution, about what certain constitutional provisions mean, what principles the they embody. And that leads to a set of sort of predictable divisions on these. And I do think it's a dangerous thing if as to those few cases, but the cases often that people care about, it really does seem like the divisions follow ineluctably from political divisions, and one side is winning.

Dahlia Lithwick (52:11)

Justice Kagan talked a little bit about, and you heard Professor Murray discuss this earlier in the show, the ways that Chief Justice John Roberts actually has a past history of shepherding the Court through some of these really divisive and ugly moments, and that maybe we just need to do a little more of the same.

Justice Elena Kagan (52:32)

Sometimes it had a little bit of a ridiculous air to it because it was like we answered some question that nobody was interested in, and that affected nobody and that affected nobody and left the big thing that actually had to be decided out there. But often I think it was very good because it just said, you know what? We're just gonna, we're not gonna take big, big steps when we're divided in this sort of way, and we're going to try to find compromise positions, and we're going to. To keep talking until we do. And that's what we did. We really did just keep on talking until we found something.

Dahlia Lithwick (53:14)

And she made the point that it's not just the court that's divided.

Justice Elena Kagan (53:18)

I mean, I think everybody has to be aware that we live in a very divided country. And so, you know, you got half the people who think X and half the people who think Y, and it appears that they're not understanding each other very well, and then they're not. Not listening to each other very well. And I mean, I don't think that the court can play psychotherapist for the country, but I do think that we should be aware of the environment and not unnecessarily exacerbate the divisions that unfortunately, exist.

Dahlia Lithwick (53:59)

One of the most important points, at least to me, that Justice Kagan made in this interview was reminding us that the Court really is and does strive to be apolitical and based in fact and logic and reason.

Justice Elena Kagan (54:13)

We don't operate by fiat. We operate by reason given. And that enables other people to criticize, to go back at us, you know, not necessarily to just, like, accept everything that comes, but to themselves, have a debate and have an argument and give reasons and try to persuade.

Dahlia Lithwick (54:42)

And because in the end of the day, she is Elena Kagan, and thus one of the Court's bridge builders and ambassadors, she offered a prescription for ways in which listening, and believe it or not, empathy can make at least some difference. It can make a difference on the Court itself, and I don't know, maybe for the rest of us, too.

Justice Elena Kagan (55:00)

I'm sure that there are plenty of times where I'm just listening to the sound of my own voice and not listening to other people, but I do at least try to do the opposite. You know, my father once had in that once would often say, you know, if you're talking, you can't be learning. And I think, you know, mostly we do our learning when we listen to other people. At the very least, at the very least, I don't think you can persuade anybody unless you listen to them, unless you figure out how the world looks standing where they're standing.

Dahlia Lithwick (55:42)

And on that lovely civil note, that is a wrap for this week's episode of Amicus. Thank you so much for listening. If you'd like to get in touch, our email is amicuslate.com and you can always find us@facebook.com AMICUSpodcast Today's show was produced by Sara Burningham. Steve Lichtai is our executive producer, and June Thomas is senior managing producer of Slate Podcast. We'll be back with another episode of Amicus in two weeks.