← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
“Slouching Toward Gilead”
01:05:45
Surveying legislative assaults on the right to choose, and what guides the chief justice’s thinking about abortion.
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- [00:11]
Melissa Murray
We are definitely slouching towards Gilead. I mean, again, I don't think I'm being hyperbolic in saying that he has.
- [00:19]
Joan Biskupic
Always voted against abortion rights when he had the chance. But then let's look at what he's trying to manage on this court right now.
- [00:33]
Dahlia Lithwick
Hi and welcome back to Amicus, Slate's podcast about the courts and the Supreme Court and the law and the rule of law. I'm Dahlia Lithwick, I cover those things for Slate. And it's mid May and we're still waiting for the end of a term that has been a little bit sluggish but might still bring some big drama in the coming weeks. Last week, an off week for the show, the supreme court overturned a 40 some year old precedent just like that. In response, Justice Stephen Breyer, usually very, very mellow stress, dissented about his fears for the overturning of Casey and Roe v. Wade. Not unrelatedly, this week's show will circle back to that very issue. It's an issue we touched on last fall when Brett Kavanaugh was confirmed to the court. One of the experts who testified at his hearings suggested at the time that he would forever change reproductive freedom in America. That expert was Melissa Murray. Onto the podcast to let us know what it might mean at the high court that Anthony Kennedy was being replaced by Brett Kavanaugh. That seems like it was a thousand years ago, but it was in fact this past fall and now we're about to find out what's going to happen maybe sooner than anyone expected. Over the last few weeks we saw states from Georgia to Kentucky to Ohio to Missouri pass extraordinarily draconian new abortion laws. Laws that pretty deliberately set to simply nullify the guardrails in place after Roe v. Wade. These states were quickly one up just last week by Alabama, which passed a law that would send an abortion provider to prison for 99 years longer than any rapist if she terminated a pregnancy anytime after conception. Alabama legislators were perfectly clear about the fact that they were fed exing this special gift legislation that was unconstitutional by its own terms, right to Brett Kavanaugh in the hopes that he would become the fifth vote to overturn Roe as early as next term. Later on in the show we'll talk to CNN's Joan Viskupic who will hopefully help us understand how Chief Justice John Roberts, presumably part of those five votes to overturn Roe, might handle this very direct and bold challenge to a court's 40 plus year old precedent. But to help us understand Roe and really at risk and what is not at risk in the abortion debate? We've invited Professor Melissa Murray back to the show. Professor Murray teaches at NYU School of Law where she specializes in family law, constitutional law, and serves as co faculty director of the Birnbaum Women's Leadership Network. She's won awards too numerous to mention for her scholarship around women's rights and reproductive rights. And she clerked for Sonia Sotomayor on the federal appeals court. Her testimony at the Brett Kavanaugh hearings last fall went viral. Melissa, welcome back to the podcast.
- [03:40]
Melissa Murray
Thanks for having me.
- [03:42]
Dahlia Lithwick
We're going to start by playing you a little bit of audio. This is like this is your life. Melissa Marie, from your testimony at the Kavanaugh hearings last fall.
- [03:50]
Melissa Murray
Reproductive rights are under serious threat in this country. What we have seen over the last two decades is a concerted strategy that would dismantle Roe v. Wade piecemeal, not in one fell swoop, but rather through a death by a thousand cuts. This nomination is the culmination of that decades long effort to destroy Roe versus Wade incrementally without necessarily formally overruling it.
- [04:16]
Dahlia Lithwick
I guess I just want to ask, were you surprised at how quickly the states kind of accepted the invitation to just go ahead and nullify Roe?
- [04:26]
Melissa Murray
Well, just let me just say at that hearing I was like Cassandra, destined to know the truth and not be believed by Susan Collins. I'm not surprised at all. The departure of Justice Kennedy was always going to be a really pivotal moment for those who would like to roll back abortion rights. And the introduction of Justice Kavanaugh, as I said in that testimony, was a clear fifth vote for Roe, for overruling Roe. And that's exactly what happened. They took this as an invitation that there was a more hospitable climate. And I think you can see that the legislation that's being passed is more extreme than what we had even a year ago. And it was pretty bad a year ago. It's more extreme now. And because they recognize there are these five votes, they want to get it to the court, they want to fast track it to the court, and they want Roe done and dusted.
- [05:28]
Dahlia Lithwick
Can you help unpack? One of the things that's really hard doctrinally here is that it's become kind of an article of faith that Roe is just bad and even on the left. And there's Ruth Bader Ginsburg herself had criticized it, although not nearly as vociferously as we like to pretend. And there tends to be this almost agreement on the political right and left that Roe may or may not have been a good idea, but it was shoddily done. And the penumbras and the emanations and the silky pony fur of, you know, a million unicorns and that it's just garbage. And there's some truth, but not a lot of truth to that. Can you just talk us through the doctrine and how we all came to agree that this is just bad case law?
- [06:21]
Melissa Murray
Sure. So Roe is a kind of classic substantive due process opinion. The right to privacy is announced by the court in 1965 in a case called Griswold v. Connecticut, which is not about abortion at all, but rather about almost hundred year old ban on contraception that Connecticut kept Well into the 1960s when most states had eradicated their bans on contraception. In that opinion written in 1965, William O. Douglas identified this right to privacy that he said did not necessarily arise out of constitutional text, but emanated from the penumbras of various constitutional guarantees, namely the protections of the Bill of Rights, the first Amendment, freedom of association, the third Amendment, which prohibits the quartering of soldiers in the home, the fifth Amendment which prohibits or provides a right against self incrimination. On and on and on. None of these rights mean anything, he said, if there isn't some right of the individual to be sequestered from undue state intrusion, like that's at their core what they mean. And then he linked it to a pair of decisions that came from the 1920s, Meyer v. Nebraska and Pierce vs. Society of Sisters. None of which are about abortion or contraception, but rather about the rights of parents to direct the upbringing of their children in a manner of their choosing. They responded directly to two state law that one prohibited the teaching of German in schools. So this was a very nativist law passed in the wake of World War I. And the other was a law that prohibited parents from sending their children to any school other than a public school. And again, very anti immigrant, very nativist and anti Catholic. The court in those cases basically said that parents have to have this right of seclusion from the state, like in intimate life, to raise your children, you've got to have some privacy to be able to make decisions. And so Griswold came from all of that this idea that the state can't come into your house and put a soldier in there, the state can't make you testify against yourself, the state can't tell you how to raise your children or what language that they ought to speak. And that none of this makes sense unless you have some right as an individual against state intrusion. And so in that opinion, Douglas says all of this tethers the ban on contraception to an intrusion on this right of privacy and strikes it down. Fast forward to 1973. So not even 10 years later, an abortion case comes before the court. And there had been a movement within the criminal justice system for about 15 years to liberalize a lot of laws that prohibited sexual offenses, including abortion. And in some jurisdictions, they had repealed them entirely. There were four jurisdictions in the US that had repealed their bans on abortion, and then others had liberalized the law. So basically, a woman can get an abortion if she went before a panel of doctors and pled her case and they decided that, you know, abortion would be an acceptable avenue for her because of her health issues or physical issues, whatever. In Roe vs Wade, Harry Blackmun, who is a conservative member of the court, this is a Nixon appointee, he had been counsel to the Mayo Clinic, and he basically traces the history of abortion and the prohibitions on abortion in the United States. And he determines that, in fact, there hasn't always been a criminal ban on abortion. They begin arising in the mid to late 1800s at the same time where there are these alarming concerns about white women not having children and immigrant women having too many children. So this idea, again, this sort of anti immigrant fervor, very nativist fervor, in favor of increasing the white birth rate. And so the medical profession, which is becoming more professionalized at this time, trying to keep out the midwives, decides to band together. They professionalize. The AMA is born during this period, and one of the first things they do is lobby together for criminal bans on abortion across the country. And so Harry Blackmun's very clear. We haven't always prohibited abortion. And this is sort of a standard response under substantive due process that there's no fundamental right to something. And how do we know this? Because it's always been prohibited. Justice Scalia used to do this all the time. And Harry Blackmun is essentially anticipating that argument. It wasn't the case that we've always prohibited. In fact, at various points in our history, women have had the right to terminate a pregnancy. It's just after this period in the 1800s when it gets foreclosed. And so after tracing that history, he then links this idea of a right to terminate pregnancy to this right to privacy that had been previously identified in in Griswold and says, if the right of privacy means anything, it has to mean the woman has the right to make a decision about something as fundamental to the person as whether to bear or beget a child. And then he says, women have this right. It's part of the right to privacy. It's grounded in the 14th Amendment, and they can make these decisions in consultation with their physicians. And, you know, and there it's born. And so the critique of the substantive due process logic is that one, the right to privacy isn't written down in the Constitution. Douglass anticipated that in Griswold. He's like, yeah, lots of these rights aren't written down in the Constitution. The right of parental autonomy is not in the Constitution. The right to marry is not in the constitutional. But we recognize them as rights. Nor is the right to association specifically delineated in the First Amendment, but we recognize it as a right. So there are lots of things that aren't enumerated. And he talks about the ninth Amendment, and Justice Goldberg also latches onto this. So what's enumerated is not necessarily exhaustive. And Blackmun kind of echoes those things. So this writes in there, too. The critique, of course, is that because it is unenumerated, it doesn't exist. And they're making this up out of whole cloth. I think what a lot of people on the left don't appreciate when they deride the right to privacy as conjured out of whole cloth is one, there actually is jurisprudential underpinnings for the right to privacy, like cases from the 1920s. The right to marry is part of the right to privacy. And when you think about it that way, you can't deride the right to abortion without also imperiling these other rights of intimate life that we basically view as sacrosanct. If the right to an abortion is imperiled because it's unenumerated, then there is no right to marry either. That's unenumerated.
- [12:54]
Dahlia Lithwick
And.
- [12:54]
Melissa Murray
And there's certainly no right to marry a person of the same sex if we can't rely on the right to privacy to secure the right to terminate a pregnancy. So again, I think the left does itself a disservice when it begins to run down Roe and its jurisprudential underpinnings, because those underpinnings undergird a lot of other things. And Justice Ginsburg sort of steps in, in that law review piece written while she's a judge, to say that her objections to Roe vs. Wade is that it might have forestalled a democratic movement that was happening at the state level. I think Reva Siegel and Linda Greenhouse, in their book Before Roe versus Wade Kind of debunks that theory. In fact, a lot of that democratic activity had stymied because the legislatures were captured by Catholic groups that did not want to allow abortion. And then she makes the claim that equality would have been a better home for the abortion right. And I think lots of people agree that it would have given it an additional leg to stand on. But, I mean, if you look at our equality jurisprudence, I'm not sure, given the way the Court has parsed the question of biological difference between men and women and the way that they have read protections for pregnancy out of the Constitution, that it would have held up under equality either. But interestingly enough, by the end of his tenure on the Court, Harry Blackmun begins to understand the right to abortion not necessarily as something between a woman and her doctor, but also as something that's essential for women's equality. So he begins to kind of imbricate the idea of this liberty interest with this idea of equality, and basically comes out with this idea that liberty is a predicate for equality. You cannot be equal if you don't have the freedom to make these choices on your own terms.
- [14:41]
Dahlia Lithwick
And the other critique of an awful lot of, again, progressives criticizing Roe, I think you've touched on it, but certainly, I think one of the things that Justice Ginsburg has said is that the Court fomented this massive backlash, right? So that's. That it's part of the states are getting there and that, you know, oh, you know, this was not an issue for the Moral Majority. We made it an issue. We gave them the gift of Roe. What's the response to that?
- [15:12]
Melissa Murray
That is patently false. When Roe is decided in January of 1973, it's uneventful. People are more focused on the inauguration of Richard Nixon, which happened the day before. It's a decision that doesn't really draw a lot of controversy. It's a 7 to 2 decision, which is really meaningful. You know, we've been so conditioned to think of this as a polarizing issue. But in fact, there were plenty of judges who were appointed by conservative presidents who are on that court who are like, yeah, I'm okay with it. Right. So it's not immediately controversial. It doesn't really become this polarizing issue until the late 1970s, early 1980s, when the GOP is basically trying to replicate the Southern Strategy, which sort of peeled off Southern voters from the Democratic Party to the GOP by emphasizing questions of racial segregation, crime control, linking it to race. They realize that abortion can do the same kind of work Only for Northeast Catholics and Rust Belt Catholics, the so called Reagan Democrats. And they basically begin to stoke this issue. Like there's a lot of really terrific writing in political science about it, but basically they begin to use it as a wedge issue. You start to see abortion become more and more of an issue in the political campaigning at this time. You know, Richard Nixon was no opponent of reproductive rights. I mean, he's the one who signs Title 10 into law, which is a huge family planning measure. Interestingly enough, Planned Parenthood, one of the honorary chairmen of its first national campaign is Dwight David Eisenhower, a Republican president. The honorary chairman of Planned Parenthood League of Connecticut, which brought the Griswold challenge, was none other than Prescott Bush, the father of President George H.W. bush. George H.W. bush was such a pro family planning congressman in Texas that he earned the nickname Rubbers Bush.
- [17:15]
Dahlia Lithwick
Nice.
- [17:16]
Melissa Murray
So, I mean, the idea that Republicans have always hated reproductive rights, have always hated family planning, have always hated Roe, that's specious. I mean, this has. There was bipartisan support for reproductive rights. It's really not until the 1980s when abortion, reproductive rights, access to reproductive rights really becomes this wedge issue that becomes polarizing between the two parties.
- [17:39]
Dahlia Lithwick
One of the things that I think Alabama unpeeled last week, and I think it's the thing that rocked us to our cores, is that. And you pointed this out in, I think your Kavanaugh testimony is this was happening anyway. Clinics were closing trap laws were happening. There were waiting periods were getting longer and heartbeat bills were on the table. All this was happening. Alabama was shocking because it was just flat out nullification. It wasn't trying to do any of the things that post Casey. Right. We had ideas about informed consent and taking care of mothers and maternal health. Everything came under that rubric. And suddenly we're in a different world. Now, women can be criminals, too. Their doctors can be criminals. Everybody's a sinner. No exception for rape, exception for incest. Help me understand how we torqued from 20 years of talking about helping vulnerable moms make good choices to everyone's going to jail.
- [18:44]
Melissa Murray
Well, let me back up two steps and first explain how we got to the sort of pro maternal, pronatalist marriage of ideas in justifying bans or restrictions on abortion. When the abortion issue becomes really controversial in the 1980s, there's a lot of effort to try and get before the Supreme Court to overturn Roe. There are a couple of cases in the 1980s, Thornburg, Akron, for example, that tee up this question. The court ultimately punts they don't decide to overrule Roe. In 1992, a case comes before the court, Planned Parenthood v. Casey, and everyone expects that this is the case that's going to overrule Roe, in part because the composition of the Court has changed dramatically. Right. Clarence Thomas has replaced Thurgood Marshall. Sandra Day o' Connor has been kind of wiggly and wobbly on questions of abortion. Anthony Kennedy is on the court as well, and David Souter, and all of them are appointed by Republican presidents. So everyone thinks this is the moment and Roe is going to go. And in fact, it doesn't go. Instead, these four quasi conservatives cobble together this really fragile compromise that maintains the essential attributes of Roe. The idea that. That there is this right of a woman to terminate her pregnancy, but then it kind of hollows out everything else. So it does away with the trimester framework. It allows the state more room to regulate abortion throughout the pregnancy, and it reduces the standard of review for abortion restrictions from strict scrutiny, which is the highest standard of review in constitutional law, to the undue burden standard, which basically says that these restrictions are fine so long as they do not impose a substantial obstacle to a woman seeking an abortion right doesn't have the purpose or effect of placing a substantial obstacle in her path. All of this then provides the states. It's a blow for the right, for sure, but it gives them an opportunity to begin thinking about how they're going to use this new lowered standard and this new room to regulate, to just kind of close off access. And it basically follows a blueprint that had already been drafted and written. So in the 1980s, there is a memo written to Solicitor General Rex Lee by a young DOD J lawyer. We'll get back to him. The memo basically says there is no way that a frontal challenge to Roe is going to succeed. It's too polarizing. The country won't take it. It's just going to galvanize the left. If you do this, there are better ways to hollow out Roe. Do it in a more stealthy way. You can limit access. You can make the procedure more expensive, such that clinics either have to pass the cost on to their patients or. Or they have to go out of business. So find a different way to sort of chip, chip, chip away at it or make it inaccessible or too expensive to do. This memo is written by a young DOJ lawyer named Samuel Alito. All right, chew on that for a moment. After Casey, the Alito memo becomes a kind of blueprint, like with Casey in hand and this Instruction, the right basically then goes about hollowing out this right through these restrictions that independently look unobjectionable and are grounded in this sort of pro maternal logic. We require a mandatory ultrasound because we want the woman to really understand the choice that she's making. We require abortion clinics to be outfitted as mini hospitals because we care about women's health. We require doctors to tell women about the risks, the health risks associated with abortion, whether they are true or not, because we want her to have an informed decision and to give her consent in an informed way. So all of this is sort of animated ostensibly by this pro woman logic, but it's also animated by an interest in making this harder and harder to get. So longer waiting periods, more rigmarole, more process. And hopefully someone just gets tired of the process and gives up. And that's kind of the point. Or it's too expensive and someone gives up. That has been the playbook. Like just chip, chip, chip away at it. And I said that in my testimony. The addition of Brett Kavanaugh to the Supreme Court, I think just emboldens individuals to keep doing that or to go even further. And it's the even further that we're seeing now. Five votes on the court, strong conservative voices like these were people. Neil Gorsuch, Brett Kavanaugh, handpicked by Leonard Leo. Right. And he's very clear that he wants anti abortion judges on the federal courts. The changed climate on the federal courts has emboldened the anti abortion movement in the same way that the changed composition of the court in 1992 allowed individuals to think that there was going to be an opportunity to overrule Roe. So Alabama, I think, reflects some kind of recognition that this is the moment everything has changed and this is the time to take action, fast track it, be as extreme as you want to be. And it's clear under the extant precedents, this law is totally unconstitutional. And they don't care. Because what they want is to get before the Supreme Court to tee this up so that five votes can overturn Roe. That's the whole plan.
- [24:07]
Dahlia Lithwick
I think one of the things people like you and I who've been saying Alabama's a head faint, is that I think it allows. I always remember, Melissa, the difference between Hobby Lobby and the Little Sisters. It was the same case, right? People stood in line around the block for Hobby Lobby. By the time Little Sisters was being.
- [24:31]
Melissa Murray
Opened, no one was there.
- [24:32]
Dahlia Lithwick
Nobody was there, Nobody cared. It didn't register. And there's a way in which.
- [24:38]
Melissa Murray
You.
- [24:38]
Dahlia Lithwick
Know, we almost get so obsessed with the big thing that we miss the little thing. And it seems to me that we now are going to tell a story where as long as Alabama isn't granted cert and Roe isn't, you know, with the stroke of a pen ended, then John Roberts was a friend to abortion and, you know, we all live free in reproductive heaven. And none of those things are true. It's a much more complicated thing to say. You're witnessing state after state after state have one clinic and the threat of states having no clinics. And we're not reacting because Roe is still the law of the land. I mean, it's such a complicated narrative. And I think that Alabama adds to the problem in a way.
- [25:28]
Melissa Murray
So Alabama adds lots of things to the problem. It's a big white whale, right? And because it's a big white whale, we're missing the barracuda that's swimming around it. The other thing that we're missing is even if the court doesn't take cert in the Alabama case, which, and I don't think it will, it's so extreme, but even if Alabama doesn't go up and get heard by the court, you have fomented such confusion about the state of abortion rights in Alabama. Like, there are millions of women in Alabama right now who think that it's already been outlawed, even though it doesn't go into effect until 2020. That's a chilling effect. Right. So there's that the confusion. You've passed a law that essentially treats the fetus as a person. Right. And it's the same for the Georgia law. And so part of this is about legislation, but part of it is also about making expressive statements that get embedded in the cultural conscience. And I think that's part of what they going on too. Like, we are becoming conditioned to think about this idea of fetal personhood. It's becoming normalized with laws like this. And, you know, I think that's part.
- [26:41]
Dahlia Lithwick
Of the point that's Overton window really changing discourse around. Once you said life begins at conception, which, by the way, we didn't think ever historically. Right. I mean, every. You know this better than I, but it seems to me that even the completely religious worldview held that, you know, abortion post quickening is a conversation, not abortion before you even. Right. So this is all brand new.
- [27:10]
Melissa Murray
It's brand new and it's meant to normalize this as the new default. And I think that's important to recognize. The other thing to recognize is whether this goes to the court or not, that's not the only court that matters. So this is going to be heard by the 11th Circuit. Very conservative court becoming more conservative because the Trump administration has been so successful in stocking the federal courts of appeals with its nominee. So even if this doesn't get to the court, it's going to be decided by the 11th Circuit. No idea what the 11th Circuit might decide. Maybe they uphold this law. If they uphold this law, that's a law in Alabama, whether the Supreme Court agrees to take it or not. If they strike it down, well, then we're back to the status quo ex ante. But we still have this sort of change in discourse, which I think is really meaningful.
- [28:06]
Dahlia Lithwick
Can you answer? And this is just a hard question, but we've been even here at Slate trying to figure out this just purely yes or no factual question about the Georgia law and whether women can be prosecuted under it. And I know it's a fight in some, I think in a profound way, it's become a fight for exactly the reason you flagged earlier, which is we don't want women to be terrified of getting any kind of reproductive healthcare. And so we don't want to put messages like that out there. But can you tell us how you read that Georgia law?
- [28:39]
Melissa Murray
So I think if you read the statute as it's written, you could easily come to the conclusion that this is a law that would criminalize women for a spontaneous miscarriage or require women to have their miscarriages investigated that would criminalize women, throw them in jail for having an abortion. I think what a straight reading of the text misses that there are other parts of Georgia's criminal code that actually specifically exempt the woman and limit the amount of criminal liability that someone performing an abortion can have. So could it happen? Probably not because of these other parts of the Georgia statutory landscape that deal specifically with criminal laws, infanticide, you know, whatnot. But I think it's purposefully vague. I mean, I think the point is, as a woman in Georgia, you're supposed to read this and be like, oh my God, I can't do that.
- [29:34]
Dahlia Lithwick
So that's your prevention window again. Yeah.
- [29:37]
Melissa Murray
So I mean, I think they're not joined up. There's no reference or cross reference to these other criminal laws which are clearly implicated by this, this particular law. They're not linked up at all. They're not referenced in the text of the bill. They want you to think that it's a problem. And again, it will have this chilling effect. So I got a lot of calls after the Georgia law like you know, was the left stoking these sort of outrageous fears? Were they being irresponsible? I actually think what's irresponsible is a sort of sloppy shoddy drafting that does like, if you don't mean for this to happen, then link to the other laws that are also implicated and would limit the force of how this is interpreted. And that's not included at all because that's not the point.
- [30:25]
Dahlia Lithwick
We have lived with rape and incest exceptions as that's just ground zero. Nobody's ever going to do away with that until, whoop, we did. Why those. If you are a purist on this, right. Then there should be no exception for rape and incest. It doesn't matter how you got pregnant. You're pregnant and life is life. I think it's adjacent to the really alarming conversation we had in Alabama last week where in vitro eggs are not human. They're human only when there's a mother hosting them. Can you help parse. And I realize I'm saying, like, explain that, which is insane to me, but can you help parse why things went into the buckets they went into. And I know now you're saying the buckets don't matter anymore because it's free for all. But how we got here.
- [31:17]
Melissa Murray
So I think the original logic behind exceptions for rape and incest is some sense that there are women who are blameworthy. Like, so these are the women who irresponsibly have sex and find themselves pregnant. And then there are women who are blameless. Right. The women who are coerced or have sex forced upon them or are in situations that, you know, violate other deeply held convictions. We had, like, you know, convictions about exogamy, those held fast for such a long time, but they're utterly incoherent with the logic of the pro life movement because again, as you say, if life is meaningful and we live in a culture of life, then it doesn't matter how life is created. All lives matter. Right. And so I think what we're beginning to see is a kind of unraveling of the pretense that any of this is sort of woman friendly, pro woman, or intended to sort of enhance the woman's life or experience. I mean, I think they're all kind of part and parcel dispatching of the rape and incest exceptions go hand in hand with moving back the prohibitions to six weeks or eight weeks. Because what matters is the fetus. Like you're a host. It can't be more plain than that. You are A host. The point about resisted reproductive technology and how this fits into this. I sounded an alarm on, quote, unquote, snowflake adoptions a long time ago and everyone thought I was crazy. Alarmist, hyperbolic. Snowflake adoptions refer to embryos that are put together like a donor egg, donor sperm put together in a laboratory for the purpose of being implanted later through in vitro fertilization. But they make tons of these embryos at a time because they're not sure which will be successfully implanted and will be gestated through a full pregnancy and come to term. So you wind up with often a couple or a person having extra embryos left over. And, you know, the question was, are they destroyed after? Or is there some higher purpose and the right and specifically the sort of pro life movement stepped in? Like, these are not just embryos. These are not sort of genetic material to be dispatched with and destroyed. These are children to be brought to life. And just as we adopt children who are put up for adoption after they are born, we can adopt these embryos before they are born in order to give them life. And I said that they are deeply connected to anti abortion rhetoric. Carol Sanger at Columbia Law School also said similar things. No one really talked about it, but I think you're beginning to kind of see where those seeds will flower, right, and what they flower into. I mean, you can't say something like that and then turn around and be okay with a rape or incest exception. Like, if all lives matter, even the lives that are on the shelf in a laboratory, then you can't have an exception for rape and incest. So, I mean, I think what we're seeing now is a full flowering of the kind of robust culture of life that the pro life movement has always wanted but hasn't been able to get. But I will note it is a selective understanding of what life means and whose lives matter. Because while you are protecting snowflake adoptions or adoptees, and while you're protecting fetuses, we are not talking about maternal health. A lot of the states where these most restrictive laws are being passed have the worst outcomes for maternal health. We are not thinking about the conditions in which children are raised. We are not thinking about a public safety net for families. We're not thinking about healthcare. So this is a very thin vision of pro life life, and I think it's one that, you know, needs to be questioned. I don't think it matters to the pro life movement, but it matters to me. If you're gonna be Pro life be pro life for the whole life.
- [35:39]
Dahlia Lithwick
And maybe not so much with the putting children in cages.
- [35:43]
Melissa Murray
Well, I mean, there's that.
- [35:45]
Dahlia Lithwick
I think we started from the proposition that the court in Alabama are not the thing to watch. What's the thing to watch? Are you watching Louisiana? Are you watching Indiana? We got some stuff that is waiting to happen at the court that is not years away. What should listeners be? If you've persuaded them of anything, it's that Alabama isn't their number one concern. What's their number one concern at the court?
- [36:17]
Melissa Murray
So the Louisiana case, June Services, v. Guy, I think, is really, really important. So this is a case dealing with an admitting privileges law. So the admitting privileges, again, are one of those kind of quotidian restrictions on abortion, requiring abortion providers to have admitting privileges at local hospitals. Interestingly, because there has been so much consolidation in the hospital industry with lots of hospitals being bought up by big consolid enterprises, many of which are Catholic, like Dignity Health, for example. If you're an abortion provider, you might not be granted admitting privileges at your local hospital because it's owned by this sort of larger entity that is basically operating under Catholic doctrine. The admitting privileges law at issue in June Services is very similar to the admitting privileges law that the court struck down in 2016 in Whole Women's Health versus Hellerstedt. That was a Texas law, but it's very similar to the one that's being being challenged in the Louisiana case. I think that's the case to watch because I think if the court takes cert there, that is an indication that the decision Whole Women's Health, which really gave, supported and bolstered Planned Parenthood v. Casey, gave the Casey standard some teeth said that courts had to really dig in and investigate the kinds of rationales that legislatures put forth for justifying these restrictions on abortion. I think if they take that case, all bets are off for what the states can say, how they can justify abortion, and what courts can do. And to me, that would signal an appetite for loosening the standard of review for abortion restrictions even further from the undue burden standard to something that's more like rational basis. As long as the state puts forth something that's reasonably palpable, we'll take it and it needs to, and it's gotta be fine. So I think that's the case because no one cares. No one's looking at that. No one cares that admitting privileges is just another way to kind of limit the number of providers. No one cares that admitting privileges is a way that you can get a state like Louisiana to have only one remaining abortion clinic. Everyone's thinking about Alabama, but that's a case that actually has real import for the law, for the doctrine, and for the work that the courts will do and that the legislatures will do going forward. The Indiana one is also, I think, really interesting, if only because it's just been pending for such a long time, which suggests that they're fighting over whether or not to take cert. And all you need is four to take cert. So that, to me, suggests that there are at least two people from the conservative bloc. I probably wager Kavanaugh and Chief Justice Roberts who are not quite willing to put their signatures to that yet, because it's clear to me that Alito, Thomas and Gorsuch would happily take cert on that. And like, let's just keep hammering at it. And so I think the fact that they haven't made a decision on the cert petition suggests that there's some fighting and that Kavanaugh and Roberts are in play.
- [39:36]
Dahlia Lithwick
What do you tell listeners who are frustrated and anguished about this? I know last week was really hard for a lot of folks who just feel like they don't recognize the country that they thought they lived in. What are you telling folks to do?
- [39:54]
Melissa Murray
So we are definitely slouching towards Gilead. I mean, again, I don't think I'm being hyperbolic in saying that they're calling the question. They're calling the question. And how we respond as progressives, I think is really important. The 2020 election, I think, is going to be really hu. This is a place where individuals, women, can make their voices heard if this is something that they care about. I would love to see us spend as much time thinking about the Senate as we have been thinking about the presidential election. I mean, like, how many people are in the presidential election now? 2011 million.
- [40:35]
Dahlia Lithwick
Two, I think.
- [40:36]
Melissa Murray
And Bill de Blasio threw himself on the mosh pit the other day.
- [40:40]
Dahlia Lithwick
Just do a TED Talk, people. Do a TED Talk. Go back to your Senate job.
- [40:46]
Melissa Murray
Well, or seek a Senate job. I mean, there are a number of candidates in the presidential primary who would be quite plausible challengers to red state senators who are up for reelection. You know, I'm looking at John Cornyn in Texas, who has been a very careful steward of a lot of these laws and has been very clear about where his priors are, or Sonny Perdue in Georgia. Like, there's another one. The Senate is really important and no one is talking about it, even if The Democrats lose the presidency in 2020. Winning the Senate means that you can force the administration to put up more moderate judges than they have been putting up. They have had carte blanche and Leonard Leo and the Federalist Society has just been churning them out. Like they have them vetted, they have them picked up. And they are really extreme in their views and they're really extreme in their views on abortion rights. So if you care about this issue, if you are in one of those states where you have an upcoming Senate seat election, you need to be pressing for a viable candidate to challenge that incumbent. Like to flip that seat blue because that's going to be huge. We are going to live with these courts for a generation and a half regardless of what happens with the presidency. And we've seen what happens when you win the presidency and you lose the Senate. CEG Merrick Garland, CEG Obama, trying to push through these judges and being really unsuccessful about it. So I wish people would focus on the Senate. I wish people would focus on state houses. Right. State House elections. We don't even talk about them, but there's been great work being done by Sister District Project. This was started by a group of people. One of my former students, Lala Wu, is among them. And after the 2016 election, they decided that they were going to do something to address the problem of state legislatures passing restrictive legislations. Instead of focusing at the federal level, they were going to focus on turning state houses blue. They did a great job in Virginia. They are looking at other places. And again, don't just fret about abortion legislation when it's on its way to the Supreme Court. Create the conditions where it can't be passed in the first place. Look at the state houses. So I just think there's a great opportunity for progressives to get involved in electoral politics. Like get out. Look at the state houses, run for office, support those who are running to turn statehouses blue and then think about the Senate like the presidency. Yeah, we gotta think about that. But the Senate is such a big deal in terms of institutions that are gonna be with us for a long time. And I would like to see people start focusing on those.
- [43:25]
Dahlia Lithwick
Melissa Murray teaches at NYU School of Law where she specializes in family law, constitutional law, and serves as co faculty director of the Birnbaum Women's Leadership Network. She is without a doubt one of my very favorite guests on this show. And I don't say that to all my guests. Melissa, thank you for being here.
- [43:41]
Melissa Murray
Thank you.
- [43:42]
Dahlia Lithwick
I want to take a moment to talk to you about our membership program, Slate Plus. If you're hearing this, you're listening to the regular version of our show, which is awesome. But if you sign up for Slate plus, you can enjoy this show commercial free and you get access to bonus segments and extended versions of your favorite Slate shows. It's only $35 for your first year, so worth it. And you can sign up free for two weeks just to check it out first. And that's not all, of course. By signing up for Slate plus, you will be supporting this show and all of the journalism that we do here at Slate. We know you value our coverage now more than ever and you know this work is urgent right now, so we need your help to do it. Sign up for Slate plus and help secure Slate's future. To learn more and to begin your free two week trial, go to slate.comamicus+ thank you. And now back to the show. Welcome back to part two of the show. In the first conversation, we touched a little bit on Chief Justice John Roberts and what possible role he might play if another big abortion challenge comes up to the Supreme Court. We wanted to talk more in depth with Joan Biskupic. She's legal analyst for CNN and the author of highly praised biographies of Justices Sandra Day o', Connor, Antonin Scalia, Sonia Sotomayor. And she's just published her huge new biography of John Roberts, the chief justice. It's called the the Life and Turbulent Times of Chief Justice John Roberts. And to the extent that there is a Roberts whisperer right now, I think it's Joan. She's also a dear colleague at the Supreme Court press corps. And Joan, it's always a treat to have you on the show. Welcome back.
- [45:32]
Joan Biskupic
Thank you, Dalia.
- [45:33]
Dahlia Lithwick
And I guess I just want to ask you the thing that everybody has asked me for the last two weeks, which is is John Roberts going to overrule Roe and is he going to use one of these incredibly clumsy vehicles like the new Alabama restrictions to do it?
- [45:54]
Joan Biskupic
I think that it's a matter of timing. The question in my mind is when and how. And I'm looking at two buckets of evidence to try to figure out where he's going to go. And I'm wondering if he even knows where he's going to go at this moment because he always leaves his options open. When I look back at the expanse of his career, and especially at the last 14 years when he's been chief, I see patterns, but I also see how he's always left his options open. So let's first look at what he's actually done. Since the very beginning of his career, legal career in Washington. He has argued against Roe v. Wade and against abortion rights. His main view is that this is something that should have been left to the states, that the Supreme Court was wrong to do what it did in 1973. And he has been part of administrations that put forth that argument. He personally argued when he was in the George H.W. bush administration that Roe v. Wade should be overturned. So we know that came before. And then let's look at what he did on the court so far. He voted in 2007 against abortion rights in the Carhartt decision. And then in 2016, our most recent case, he was in the dissent when Justice Kennedy formed the majority to ensure that restrictive Texas regulations on physicians who perform abortions did not stand. So I think it's important to say what but he has done and he has always voted against abortion rights when he had the chance. But then let's look at what he's trying to manage on this court right now. With Kennedy's absence, the court has become so much more politicized. He is obviously navigating the institution in the public eye. And what he did in February, I think at least should give us some pause about how he will operate. He's never endorsed abortion rights. I don't think we're ever going to see a robust endorsement of abortion rights, but I think what we're going to see is more of a pause. And what I'm referring to, of course, is when he casts the fifth vote to @ least put the brake on Louisiana's attempt to enforce admitting privileges rules that are similar to Texas'. The first test will come in June, medical services, which is an incremental case. So that to answer directly your question about whether he is going to vote to uphold bans like we've seen in Alabama or the so called heartbeat detection six week bans in Georgia. I think the answer for the time being, Dalia, is not.
- [48:39]
Dahlia Lithwick
Yet. I agree and I think I wrote essentially that last week and I more or less said John Roberts has a long track record of doing things incrementally and carefully and he's not going to do something reckless and stupid and he's especially not going to do it in an election year and he can afford to take his time. The one thing we know about John Roberts is that he plays the long game.
- [49:05]
Joan Biskupic
Right? We certainly saw that on race. We've seen that in many areas. And I think what we need to hold in our minds is What I definitely saw on almost a daily basis when I was working on this biography is that he is always looking ahead. He is never in just the moment. He is always looking ahead. A year or two and probably even a decade. And we know where he's been at. We know what his interest is here. And I think his sense about Roe being wrong is very, very strong. I don't think he's going to abandon that. But think of how this court could evolve in the next couple years. One thing I've done is gone back and looked at the transcript and listened to the arguments in Whole Women's Health in 2016, and I found that very instructive because Justice Scalia had just died, and John Roberts was essentially by himself or with Samuel Alito, speaking out in favor of these regulations. And it was a difficult battle because of course, Clarence Thomas was going to be there, but he wasn't speaking. And the liberal justices were so strong in questioning what Texas had done here. Justices Sotomayor, Kagan and Ginsburg werejust kept interrupting, interrupting, interrupting. And Roberts frustration was palpable. And in the end, of course, we know that Justice Kennedy separated himself from the Chief and joined with the four liberal justices. And, and. But I point to that episode just to remind us of his view of abortion rights and his openness to regulations, but also to say, think of how different that moment was from what we could have predicted, because in spring of 2016, suddenly our loudest voice against abortion rights had died. And just think, now, of course, the man who was determined decider in that case is gone, too. So we don't know what else is going to happen around him to also influence how he exercises his.
- [51:19]
Dahlia Lithwick
Options. One other thing that you flicked at, Joan, and I think is really illuminated in the book, is this past winter when John Roberts voted with the liberals not to allow the Louisiana admitting privileges law to go into effect. Everybody read that as like, oh, he's flipped on abortion. You know, suddenly he's voting with the liberals. That wasn't that. That was him saying, I'm not going to let a lower court overrule Whole Women's Health. I mean, he was not making a decision on the merits, right? He was saying the 5th Circuit had said, oh, this ban can go into effect. We're fine. That's cool. That's not the way it's going to happen. If and when it happens, it will be a decision by him. In that sense, he is kind of a Supreme Court supremacist in the model of Rehnquist, his hero More than he is suddenly a convert to the notion that abortion is a good thing.
- [52:21]
Joan Biskupic
Right? You are exactly right. And I'm glad you brought it up because there was a very knee jerk reaction in response to the court's late night action on Feb. 7 when Roberts joined with the four liberals. What he was doing, let's remind everyone he was simply preventing the Louisiana law from immediately enforced and potentially closing clinics. And it wasi've characterized it as a modest incremental move whose meaning is not yet clear. And it certainly reflected an interest in waiting and hearing, seeing arguments on the merits. But I don't think that it adds much dimension to him other than caution. And I think that what we have to do is be patient. I feel like when I argue publicly that John Roberts is not about to endorse the Alabama abortion ban, you know, people are like, oh, how could you say that? You know, the states have just teed up these kinds of things for him. I've been on a couple of shows recently where people have pulled up the news clippings from John Roberts testimony before the Senate, Brett Kavanaugh's testimony before the Senate Senate and Neil Gorsuch's testimony before the Senate expressing regard for precedent. And what I've said is don't just listen to what they say, watch what they do. And I think what we're all going to have to do is watch in these incremental cases exactly how the undue burden standard is perhaps modified, undercut, and some of our colleagues say it will be thrown out without question. I actually still do not think that's going to happen. I think it will take a change in court membership or a certain boldness on the part of the court flying in the face of precedent and what the country seems to want. But I think there's lots for us to actually pay attention to rather than to just kind of presume. I think our presumptions have to be set aside a bit.
- [54:20]
Dahlia Lithwick
Here. I want to ask you a question and you can decline to answer it, but one of the things that's really clear from your book is, is just the deep role that faith and John Roberts Catholic upbringing and his wife's Catholic upbringing, how that sort of has inflected on his whole worldview. I think you noted that he talks about Roe in terms of the termination of fetal life. It's wrong for what are not simply doctrinal reasons. He's making a moral and religious argument. And I wonder if I know this is a complicated question, but how much of that inflects on the way he thinks about Roe and the right to.
- [55:06]
Joan Biskupic
Choose. I think it's a complicated question, as you say, but I also think it's a question that we shouldn't run from. And I'll admit right off that it's something I'm a bit skittish about talking about a person's religion. And I always remind people that, yes, John Roberts is Catholic, yes, Sam Alito is Catholic, yes, Clarence Thomas is Catholic, but so is Anthony Kennedy, who cast the decisive vote to uphold Roe and voted for abortion rights in 2016. And so was William Brennan, who always voted for abortion rights. So I try to remind people of that, but I do. But it's true that Jane Roberts was very active in feminists for life. This is an incredibly important issue to her. It's an important issue in the family. He grew up, as many Catholics did, going to services that every day, where priests preach that abortion is murder. So I don't, I think it's part of the context. But there are plenty of Catholics, including we still have a Catholic on the Supreme Court who's voting in the opposite direction currently, now Sonia Sotomayor. So other Catholics heard that message. Other Catholics grew up in that atmosphere and have not adopted his view. But I do think it's fair game. And senators during the confirmation hearings asked him about his Catholic faith and whether it would factor into his rulings. And it came up in the context of abortion, and it also came up in the context of right to die issues. And he insisted that his Catholic faith would not be a factor in his rulings, that he would, you know, look at the Constitution, not at the Bible. And, you know, again, I think that it's there, but that's one element that I think I personally wanted to lay out, but I didn't want to rely on. I'll just say right out, Dalia, I'm not going to hang his, his opposition to Roe on that, as many people are. I'd rather look at the track record, which, frankly, is deep.
- [57:20]
Dahlia Lithwick
Enough. That's a perfect answer to the hardest question I could have asked you. I don't want to let you go without asking you one other question because deep, deep reporting in your book on his flip in the Affordable Care act cases, and you don't come to a sort of definitive conclusion on why, having been on the track to strike down Obamacare, he changes his mind and votes with the liberal bloc. And that alone, the reporting is stupendous and folks should just read it. But you come away sort of saying Maybe it was concern for business and the interests of big business and healthcare. Maybe he was worried about his own legitimacy. Maybe he was worried about the legitimacy of the court. Or maybe he just suddenly fell in love with congressional tax power. We don't know. And you say that. But I do want to ask if, and I want to be really clear that when people say John Roberts is the new swing vote, he votes with the right wing of the court 90% of the time. He happened to defect on the Obamacare cases. But is this question of institutional legitimacy, and particularly you and I had this conversation on the show, a few. But particularly with Donald Trump assailing the independence of the courts, is that going to push him into the arms of the left wing on the court, sort of independent of all the doctrinal questions around abortion? Is he going to continue to drift to the center just as a reaction to Donald.
- [59:03]
Joan Biskupic
Trump? I think there's going to be some of that. First, I'll follow up on your reference to the Affordable Care Act. I don't think there's ever a single motivating factor. I think what was important to show there is that he switched two different votes, major, major votes, you know, on the individual insurance mandate and on the Medicaid coverage for the poor. And the fact that he switched and his own angst and ambivalence as he was going along I think reflects some of the intertwined concerns he was having. But I do want to reinforce your question about your reference to the legitimacy of the court and his own legacy. Those elements are incredibly important to him. And now to the present time, with Donald Trump constantly undermining the integrity and impartiality of the federal judiciary, that is weighing on him even more. John Roberts already had taken that on as a big issue immediately in 2005, 2006, when he first became chief, he said in public speeches, the thing that people should know is that we are not political. You know, he's obviously fighting a bit of a battle here because he knows that, you know, people get on the court because of politics, then justices act in ways that are political once they're on the court. And that's what I tried to show in the book. It's not an automatic thing, but it's, but it's a subtle thing. It's there. You can't remove it. But he was fighting it even before Donald Trump came on the scene. And then we have this president saying, hey, look at him for what they all are. So that is a big threat. And I do think that he will inch to the left on things that do not matter crucially to him. And as I documented in the book, racial Remedies matters so much to him that I just do not see him ever inching to the left on that one. But I think on these culture war issues and these something like abortion rights, it is going to be an incredibly close call because he has until that very minor, modest vote on February 7th to block the Louisiana law from taking immediate effect, he has never voted in any way that favored abortion rights, you know, even in a incremental way. So this is not an area where he's previously expressed ambivalence or a little of this, a little of that, a little, you know, maybe compromise around the edges, but that's, I'm not going to ever adopt the metaphor of running into the arms of liberals, but I could see him tiptoeing a little bit. I have to say it for appearance sake. And I know that they, they can't stand the idea that someone like me or any reporter would say, well, they're worried about how they're going to be seen, but they are worried about how they're going to be seen. And that is actually no small thing. People want to have confidence in the Supreme Court. People want to believe that the Supreme Court is rising above politics and that individual justices are trying to work.
- [62:18]
Dahlia Lithwick
Together. Yeah, I mean, I think at the end of the day, I'm pretty sanguine about that. I think that if what they're doing is conforming their rulings to make sure that public esteem for the courts is high, especially in the face of attacks by the president, like, that's cool. That's okay. I don't think there's any sin in that. I realize that it looks political and it looks a little bit craven and calculating, but I'm all for craven, calculating and political if the alternative is running amok. So I don't know that we need to, to apologize to the justices when we say these.
- [63:00]
Joan Biskupic
Things. Well, that's right. That's right. And just think, you know, right now the whole court packing idea is in the news. And you and I both know from, you know, studying history that in the 1930s, when FDR tried to pack the court because of what the justices were doing to his New Deal initiatives, the court itself started to, you know, moderate the switch in time that saved nine. And Chief Justice Hughes also took some steps behind the scenes to try to diffuse that idea, to work with people behind the scenes on Capitol Hill to say, no, we don't need this so and just think of how important it was that that idea was.
- [63:43]
Dahlia Lithwick
Abandoned. I'm trying to think about how to summarize what you just said, Joan, and I guess it's some version of, of be very, very afraid, but you're not gonna see it coming. Is that where we are on.
- [63:56]
Joan Biskupic
Abortion right now, at least with the court as it is now and the country as it is now in the next, let's take two years. Let's give people two years to feel like it's not yet coming. And what we need to watch for. Let's watch what they do in the Louisiana June medical services case. And, and let's see if they have to weigh in on any of these injunctions, on the bans. If they do anything that signals any openness to restrictions, I think we should see what kind of groundwork they're.
- [64:31]
Dahlia Lithwick
Laying. Joan Biskupic is the legal analyst for cnn, and her wonderful new biography of John Roberts is called the the Life and Turbulent Times of Chief Justice Justice John Roberts, published by Basic Books. She's also a dear friend and colleague covering the Supreme Court. Joan, I know you were busy today. Thank you for taking.
- [64:52]
Joan Biskupic
Time. Thank you.
- [64:53]
Dahlia Lithwick
Dalia. And that is a wrap for this episode of Amicus. Thank you so much for listening. If you'd like to get in touch, Our email is amicuslate.com and we love your letters and thank you. Thank you for them. And you can always find us@facebook.com AMICUSpodcast Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is senior managing producer of Slate Podcasts. We will be back with another episode of Amicus in two short weeks.