Amicus With Dahlia Lithwick | What's Left of Roe v. Wade?

Episode Date: July 4, 2020
Main Guests:

• Host: Dahlia Lithwick
• Melissa Murray: Professor of Law at NYU, host of the Strict Scrutiny podcast
• Jeffrey Toobin: Staff writer at The New Yorker, CNN chief legal analyst

Overview

This episode analyzes the Supreme Court's decision in June Medical Services v. Russo, the 2020 Louisiana case challenging abortion restrictions nearly identical to those struck down in Texas's Whole Woman's Health v. Hellerstedt (2016). The discussion explores Chief Justice John Roberts' pivotal vote, the evolving “undue burden” test for abortion laws, and the fractured, gendered legal commentary the decision has provoked. The conversation ranges from Supreme Court dynamics to how the ruling signals the future security—or vulnerability—of Roe v. Wade.

Key Discussion Points & Insights

1. Setting the Legal Stage: June Medical and Whole Woman’s Health

• June Medical concerned a Louisiana law requiring doctors who perform abortions to have admitting privileges at a hospital within 30 miles.
• The law's virtual identity to Texas's regulation in Whole Woman’s Health (2016) set up a showdown over whether the Court would respect recent precedent.
• The composition of the court had changed since 2016: Justice Kennedy replaced by Kavanaugh.
• The Fifth Circuit upheld the Louisiana law, purporting there were factual distinctions from Texas—a justification the Supreme Court would scrutinize.
• Quotes:
  • Melissa Murray (07:20): “The Louisiana Unsafe Abortion Protection Act is honestly virtually identical to the Texas admitting privileges law struck down in 2016... The decision at the time was five to three because it was during that interregnum... So again, Whole Woman's Health, I think, was a sort of watershed moment in the abortion rights movement.”

2. From Roe to Casey to Whole Woman’s Health: How the Tests Changed

• Roe v. Wade (1973): Created a trimester system, focusing on physician and maternal rights.
• Planned Parenthood v. Casey (1992): Shifted to “undue burden” test—states can regulate abortion so long as they don’t place a substantial obstacle in the path of a woman seeking an abortion.
• Whole Woman’s Health (2016): Added “balancing” burdens and benefits, making courts weigh whether the law’s purported health benefits outweighed the burdens on access.
• June Medical: The Court was asked to apply (or retreat from) this more robust balancing test.
• Quotes:
  • Jeffrey Toobin (11:27): “The opinion written jointly by Sandra Day O’Connor, David Souter and Anthony Kennedy in 1992, they sort of threw out the trimester framework and said the government could not impose an undue burden on a woman's right to choose abortion.”

3. Roberts’ Controlling, Yet Narrow, Opinion: What It Did (and Didn’t) Mean

• Roberts concurred with the liberals in the judgment—striking down the Louisiana law—but expressly rejected Whole Woman’s Health’s reasoning.
• He cited stare decisis (respect for precedent) but weakened the burden/benefit balancing, emphasizing only whether a regulation posed a substantial obstacle, regardless of benefit.
• This made Roberts’ opinion the “controlling” one, even as it was more restrictive.
• Murray and Lithwick both argue his move “trims back” abortion rights protections.
• Quotes:
  • Melissa Murray (10:41): “Chief Justice Roberts... concurs in the judgment, but not in the reasoning. And because he is the sort of consequential voice..., his opinion is the one that will control going forward... a trimming back of Whole Women's Health in really substantial ways.”

4. Concrete Consequences & the Chief’s Evolution

• Toobin focuses on Roberts defecting from the Court’s expected conservative trend:
  • Voted with liberals on DACA (immigration), LGBTQ workplace protections (Title VII), and abortion—bucking the Trump administration.
• Toobin marvels at Roberts’ departure from his previous reliable conservative alignment, calling the result "mind-blowing," while Murray remains skeptical, seeing institutional motives rather than jurisprudential drift.
  • Jeffrey Toobin (22:14): “He does not appear to be the same John Roberts as he was 2, 5, 10 years ago.”
  • Melissa Murray (22:58): “I think John Roberts plays a long game... and I think he is playing a long game... he hands you this... partial victory actually strips the 2016 decision of all of its substance.”

5. Gendered Fault Lines in Legal Commentary

• Lithwick notes a distinct gender divide in responses: “Glass half-full” takes by men, “glass half-empty” by women.
• Murray offers herself up as “Team Uterus,” stressing women’s lived experiences are absent from the decision’s text and practical consequences, which worry her more than the legal technicalities.
• Women justices didn’t write any opinions in June Medical. The male justices’ dissents, meanwhile, were vivid and emotional, painting abortion providers in damning terms.
  • Melissa Murray (06:48): “I think it is empirically verifiable. So I'm just gonna come out and say I'm on Team Uterus.”
  • Dahlia Lithwick (34:10): “What I really saw in the opinion that really was concerning to me was that women all but disappeared... The absence of women's stories, voices, narratives, the suffering that women are going to... experience in this opinion was really striking to me as a woman.”

6. The Kavanaugh and the Dissenting “Weaselry”

• Brett Kavanaugh’s brief dissent is described as a “weaselly” attempt to avoid responsibility for overturning precedent.
• Both Lithwick and Murray criticize Senator Susan Collins' defense of Kavanaugh, noting political evasions around his judicial philosophy.
  • Dahlia Lithwick (36:28): “She was the one woman in this opinion.”
  • Melissa Murray (36:30): “Her sort of Pavlovian response to Kavanaugh's total bullshit claim that he was like in love with the stare decisis and the rule of precedent. I thought... Kavanaugh wrote this tiny little dissent saying, well, what I really want is more fact finding was a way for him to vote with the conservatives without looking like he was trying to overturn the four year old precedent.”

7. Long-Term Prospects for Abortion Rights

• Murray warns that June Medical does not bolster Roe or Whole Woman’s Health—it leaves a hollowed-out right, much as Casey undermined Roe:
  • “Whole Women's Health nominally survives, but that benefit and burdens analysis is all gone... the precedent that John Roberts is really upholding here is the Casey precedent, which honestly was a victory for abortion opponents because it gave the states wide latitude to legislate abortion out of existence.” (25:57)

8. Institutionalism vs. Partisanship: The Roberts Motive Debate

• Both Toobin and Murray agree Roberts feels a “chief justice of the United States” responsibility to protect court legitimacy, especially in a polarized election year.
  • Melissa Murray (28:16): “He is the most stalwart protector of the Court's institutional integrity.”
  • Jeffrey Toobin (30:18): “He feels an institutional responsibility for the judicial branch of government.”

9. Frustration with Judicial and Legislative Gatekeeping

• The final stretch ruefully notes all the decision-making power is in male hands, reinforcing why so many women legal commentators are skeptical and anxious:
  • Dahlia Lithwick (37:45): “I don't like that this decision making power is all being arrogated to these men.”
  • Jeffrey Toobin (38:53): “All these regulations are just total bullshit... The only purpose [is] to make abortions more difficult, to get, more expensive and more inconvenient.”

Notable Quotes & Timestamps

• On Roberts’ approach:
  • “He is the most stalwart protector of the Court's institutional integrity.” –Melissa Murray (28:16)
• On the gender divide:
  • “I think I'm on Team Uterus.” –Melissa Murray (06:48)
• On the decision’s hollowness:
  • “Whole Women's Health nominally survives, but that benefit and burdens analysis is all gone.” –Melissa Murray (25:57)
• Roberts’ evolution:
  • “He does not appear to be the same John Roberts as he was 2, 5, 10 years ago.” –Jeffrey Toobin (22:14)
• Silencing of women justices:
  • “What I really saw in the opinion that really was concerning to me was that women all but disappeared.” –Dahlia Lithwick (34:10)

Memorable Moments

• The “Team Uterus” quip and the recurring light-hearted acknowledgment of the “testosterone edition” of the show (06:48, 40:11).
• Lithwick and Toobin playfully ribbing Susan Collins for her defense of Kavanaugh’s supposed allegiance to precedent (36:28–37:32).
• Reflection on the Supreme Court’s lack of women’s perspectives in this and other key reproductive rights cases (34:10–36:08).

Key Timestamps

• 06:48: Murray declares, semi-jokingly, her allegiance to “Team Uterus” in the gendered commentary divide.
• 10:41: Murray explains Roberts’ “controlling” but narrowing concurrence.
• 14:34: Toobin offers a plain-language summary of how Roe, Casey, and Whole Women’s Health relate.
• 22:14: Toobin on Roberts’ recent jurisprudential shift.
• 28:16: Murray details Roberts as an institutionalist, not a Trumpist.
• 34:10: Lithwick on the silencing of women’s lived experiences in the opinion.
• 36:28: The group discusses Kavanaugh’s “weaselly” dissent and Susan Collins’ response.
• 38:53: Toobin’s scathing assessment of abortion regulations as “total bullshit.”
• 40:05: Murray welcomes Toobin to “Team Uterus”—“It’s the dream team.”

Summary Conclusion

This episode provides a frank, nuanced, and often humorous assessment of the Supreme Court’s June Medical decision. Lithwick, Murray, and Toobin dissect the controlling force of Chief Justice Roberts’ opinion, the narrowing of abortion rights under the guise of precedent, and the gendered undertones of both legal commentary and the Court’s jurisprudence. The episode concludes with deep concern for the lack of women’s voices in both the Court and the conversation, and an uneasy sense that this legal “victory” may foreshadow more fraught battles for reproductive rights ahead.