Amicus With Dahlia Lithwick | “Slouching Toward Gilead”

Date: May 25, 2019
Host: Dahlia Lithwick
Guests: Professor Melissa Murray (NYU Law), Joan Biskupic (CNN legal analyst & Roberts biographer)

Overview

This episode focuses on the rapidly evolving landscape of abortion law in America in spring 2019. With a conservative majority now established on the Supreme Court, states like Alabama, Georgia, and others are passing increasingly restrictive and aggressive anti-abortion legislation. Host Dahlia Lithwick is joined by Professor Melissa Murray to unpack the legal doctrines and historical context behind Roe v. Wade and its threatened status. Later, CNN’s Joan Biskupic provides insight into Chief Justice John Roberts’ pivotal role and how the Court is likely to approach these seismic challenges to long-standing abortion precedents.

Key Discussion Points & Insights

1. The State of Abortion Law & The Court’s Dramatic Rightward Turn

• Opening Context ([00:33–03:40])
  • Recent overturning of a 40-year-old precedent by the Supreme Court, with Justice Breyer’s dissent expressing alarm about the fate of Roe v. Wade.
  • States like Alabama passing extreme anti-abortion laws—designed to prompt a Supreme Court challenge—with severe penalties for providers, no exceptions for rape or incest.
  • Dahlia frames this as part of an ongoing, intensifying effort to gut reproductive rights, especially with Brett Kavanaugh replacing Anthony Kennedy.

“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.”
—Dahlia Lithwick [02:41]

2. Melissa Murray Explains: The Legal and Historical Roots of Roe v. Wade

• How Roe Became “Bad Law” In the Public Imagination ([05:28–12:53])
  • Roe is often criticized (even on the left) as poorly reasoned, with its foundation in “substantive due process” and a so-called invented right to privacy.
  • Murray traces the right to privacy from Griswold v. Connecticut (contraceptive rights, 1965) back to cases about parental autonomy, privacy from state intrusion, and connects these to Roe.
  • Key Insight: Many fundamental rights (marriage, association) are unenumerated, but broadly accepted; attacks on Roe’s basis threaten these too.

“If the right to an abortion is imperiled because it’s unenumerated, then there is no right to marry either. That’s unenumerated.”
—Melissa Murray [11:46]

• Roe, Political Backlash & the Myth of Republican Anti-Choice Orthodoxy ([14:40–17:38])
  • When Roe was decided in 1973, it wasn’t immediately controversial; backlash was manufactured politically in the 1980s as a wedge issue by the GOP.
  • Bipartisan support for reproductive rights existed deep into the 1970s.

“‘Rubbers Bush.’ So, I mean, the idea that Republicans have always hated reproductive rights, have always hated family planning, have always hated Roe, that’s specious.”
—Melissa Murray [17:16]

3. How Anti-Abortion Strategy Shifted: From “Pro-Maternal” Framing to Criminalization

• The Shift from Incremental Restrictions to Radical Bans ([18:43–24:06])
  • Post-Casey (1992), the Supreme Court allowed more regulation of abortion so long as it didn’t place a “substantial obstacle” in the path of women seeking abortions (undue burden standard).
  • Conservatives, per a 1980s memo by Samuel Alito, adopted a “death by a thousand cuts” approach—chipping away at access through TRAP laws, waiting periods, etc.
  • Alabama marks a new era: not just restricting abortion, but outright criminalizing providers and possibly patients, with expressive intent to shift culture ("fetal personhood").

“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.”
—Melissa Murray [25:27]

4. The Chilling Effect & Expressive Power of Extreme Bans

• Legal Confusion as Deterrence ([25:27–29:37])
  • Even without immediate enforcement, such laws sow confusion, discourage providers, and shape perceptions (“fetal personhood” is normalized).
  • Professor Murray describes the Alabama and Georgia statutes as designed to be intentionally vague, fostering fear among potential patients and providers.

“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.”
—Melissa Murray [25:51]

5. Exceptions & the “Host” Rhetoric: The New Language of Abortion Opposition

• Erasure of Rape and Incest Exceptions ([30:24–35:42])
  • The old logic recognized “blameless” women via exceptions for rape/incest; these are now falling away, replaced by absolutist “all life is life” narratives.
  • Discussion of “snowflake adoptions” (adoption of IVF embryos) as tied to the pro-life movement’s expanding definition of personhood.

“What matters is the fetus. Like, you’re a host. It can’t be more plain than that. You are A host.”
—Melissa Murray [32:38]

• Selective Valuing of Life
  Murray notes the contradiction: states most aggressive in pro-life law often neglect maternal health and social support.

6. What Should Concern Listeners: The Cases to Watch (Not Just Alabama)

• Under-the-Radar Threats: Louisiana & Indiana ([35:45–39:35])
  • The Supreme Court’s likely next significant abortion case is June Medical Services v. Gee (Louisiana). It concerns clinic admitting-privileges regulations almost identical to a law the Court struck down in 2016 (Whole Woman’s Health v. Hellerstedt).
  • If the Court takes the Louisiana case, it may be poised to further erode protections for abortion rights.
  • The Indiana law is also pending, with possible internal Supreme Court disagreement about whether to take the case.

“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.”
—Melissa Murray [38:43]

7. What Can Concerned Citizens Do? Focus on the Senate and State Houses

• Action for Progressives ([39:35–43:25])
  • The 2020 election will play a huge role; flipping the Senate is as important (or more) than the presidency for judicial nominations.
  • Attention should also go to state legislative races, since the pipeline for restrictive laws begins there.

“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.”
—Melissa Murray [41:24]

8. Part 2: Joan Biskupic on Chief Justice Roberts and the Fate of Roe

Who Is John Roberts and Where Is He Leading the Court? ([45:32–48:39])

• Roberts has a record of voting against abortion rights and has long believed Roe was wrongly decided.
• With Kennedy gone and a more conservative bloc, Roberts faces internal and external pressures.
• Key Take: Roberts is deeply incremental, thinking “a year or two and probably even a decade” ahead.

Does Roberts Have a Red Line on Overturning Roe? ([48:39–54:19])

• Roberts’ actions (e.g., voting to delay the Louisiana law from taking effect) are best understood as caution and institutional management, not support for abortion rights.
• He may nibble at Roe rather than abolish it outright, at least for now.

“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.”
—Joan Biskupic [49:07]

The Role of Faith in Roberts’ Jurisprudence ([54:19–57:20])

• Roberts’ Catholic faith is part of his personal and professional context, but there are plenty of pro-choice Catholic justices.
• Biskupic stresses the importance of examining Roberts’ legal record over theorizing about religious motivations.

Institutional Legitimacy and the Trump Factor ([57:20–62:17])

• With President Trump attacking the courts’ independence, Roberts is more motivated to protect the Court’s reputation.
• Roberts may occasionally “tiptoe to the left” to maintain public confidence, but not on issues — like racial remedies — that are core to his legal project.

“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 together.”
—Joan Biskupic [62:10]

What to Expect Going Forward ([63:00–64:30])

• No abrupt overturn of Roe likely in the next 2 years — the process will be incremental, attacking the foundations and narrowing protections.
• The public and advocates need to focus on “small” cases and signals as well as headline-grabbing bans.

Notable Quotes & Timestamps

• "We are definitely slouching towards Gilead. I mean, again, I don’t think I’m being hyperbolic in saying that..."
  — Melissa Murray [00:11], [39:54]

• "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."
  — Melissa Murray [12:27]

• "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."
  — Melissa Murray [17:20]

• "It’s a big white whale, right?... we're missing the barracuda that’s swimming around it."
  — Melissa Murray [25:27]

• "If you care about this issue... 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."
  — Melissa Murray [41:54]

• "He [Roberts] 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."
  — Joan Biskupic [49:07]

• "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."
  — Joan Biskupic [61:32]

Important Timestamps

• [03:49] — Audio flashback to Murray’s viral Kavanaugh testimony on “death by a thousand cuts” to Roe.
• [05:28–12:53] — Deep dive: the doctrine and legitimacy of Roe — the right to privacy, the 14th Amendment, history of abortion bans.
• [14:40–17:38] — Unpacking the myth of natural Republican opposition & the political weaponization of abortion.
• [18:43–24:06] — How anti-abortion strategy evolved post-Casey; the Samuel Alito memo sets the playbook for incremental restriction.
• [25:27–29:37] — The expressive and chilling effects of “headlines” abortion laws.
• [35:45–39:35] — Which cases truly matter at the Supreme Court: Louisiana, Indiana—watch for these, not just the high drama.
• [41:54] — Action points: importance of Senate, statehouses, and organizing.
• [45:32–54:19] — Biskupic on Roberts: his long game, past votes, and incremental approach to precedent.
• [57:20–62:17] — How institutional legitimacy and the Trump presidency influence Roberts’ calculations.

Tone and Language

• The conversation is urgent, substantive, and laced with both exasperation and determination.
• Murray and Lithwick use vivid metaphors, sharp wit, and candid, accessible explanations.
• Biskupic’s segments are measured, analytical, and layered with her deep reporting on Roberts’ psychology and judicial philosophy.

Summary Takeaways

• The rollback of abortion rights is well underway at the state and federal levels, enabled by new Supreme Court alignment.
• The fight is both legal/doctrinal and cultural/expressive; chilling effects and new “norms” are as relevant as outright bans.
• Chief Justice Roberts is likely to act incrementally, protecting the Court’s legitimacy, but his fundamental opposition to Roe is undiminished.
• Concerned citizens and advocates should look beyond headline-grabbing cases and focus political energy on Senate and state races, as well as under-the-radar but legally significant cases like June Medical Services.

For listeners seeking clarity on the status and future of abortion rights in the U.S., this episode provides a thorough, engaging, and deeply informed tour—historical context, the evolution of legal strategy, political implications, and institutional dynamics at the Supreme Court’s highest levels.