SCOTUS & the Future of Roe v. Wade

Episode Notes

Transcript

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Female:  I think organizing and making sure that everyone is aware of what these laws are doing and the fact that the majority of Americans do not support this, do not want to live this way and spreading the word about that is ultimately the way we’re going to get out of this.

Male 1:  Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession.  You’re listening to Legal Talk Network.

J. Craig Williams:  Welcome to Lawyer 2 Lawyer on the Legal Talk Network.  I’m Craig Williams coming to you from Southern California.  I wrote a legal blog named May It Please the Court and have two books out titled How to Get Sued and The Sled.  Well, it’s been nearly 50 years since the United States Supreme Court’s ruling in Roe v. Wade to establish the constitution that protects the women’s liberty to choose to have an abortion.  But in the last two weeks, the issue has once again become the center of nationwide controversy as a leaked draft opinion in the matter of Dobbs v. Jackson’s Women’s Health Organization indicates that the Supreme Court is prepared to overturn Roe.  While questions remain about how closely the final ruling will track this draft opinion, the public has wasted no time in expressing its anger, but those advocating for abortion staging protests, demonstrations and those advocating against taking the issue with the leak itself.

So what does all this mean?  Today on this episode of Lawyer to Lawyer, we’re going to discuss this recent leak of the drafted Supreme Court opinion that might overturn abortion rights, a constitutional right to abortion, the role of stare decisis and the impact this will have if Roe v. Wade is overruled.  And to do that, our guest today is Cary Franklin, professor of law at UCLA School of Law, where she writes and teaches in the areas of constitutional law, anti-discrimination law and legal history.  She is currently the faculty director of the Williams Institute, a research institute at UCLA focused on sexual orientation and gender identity law and public policy, and the faculty director of the Center on Reproductive Health, Law and policy, an innovative new center engaging with community organizations, scholars, lawmakers, practitioners, and advocates on reproductive health, law and policy.  Welcome to the show Cary.

Cary Franklin:  Thanks.  I’m glad to be here.

J. Craig Williams:  And just to be clear, there’s no relationship between me, Craig Williams and the Williams Institute that I know of.  Well, wow, what a week we’ve had.  We’ve got multiple leaks out of the Supreme Court, a big draft opinion that nobody seems happy with and some people do.  I shouldn’t say nobody, but where are we?  We have a draft opinion.  We have a couple of leaks saying that Roberts may convince somebody else to go on his side.  What’s happening?

Cary Franklin:  Oh, I wish I had the answer to that.  We are in a strange situation right now.  Everybody is kind of waiting and wondering what exactly will happen, but it looks like in my prediction would be that the draft opinion that got leaked at least as far as we can tell right now seems to be a majority opinion.  The question of whether it will hold us such is open I guess, but we certainly know — I guess we’ll say as of February, we know that Justice Alito was imagining his opinion as a majority opinion, five justices for overturning Roe and Casey.

J. Craig Williams:  Right, and just for those who haven’t clerked on an appellate court or a Supreme Court, what is a draft opinion?  What kind of meaning does it have in the court?

Cary Franklin:  So the justices hear oral argument in a case where the litigants on both sides get to present their arguments and then the justices go back and have a conference and they talk about their thoughts and which way they’re leaning, what questions they have.  When the justices take that initial vote about where they’re all standing, the majority opinion gets assigned to a particular Justice and it appears what we can say is what happened is that there was a majority in December after the oral argument in this case for overturning Roe.  Kind of the maximalist outcome in this case would be just striking down Roe’s holding that there is a fundamental right to abortion and at that point, there were at least five justices for that proposition.  The opinion was assigned to Justice Alito.  He went back to his chambers and he worked with his clerks and he drafted this opinion.  As of February, when the (00:04:47) pinion comes from, he was holding a majority and he was circulating that opinion to his colleagues to say, “What do you think about this?  Are you still likely to sign on to it?  Do you have any corrections and who’s going to write a dissent?”  That’s where they were as of February.

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J. Craig Williams:  So is there any indication so far who has leaked this opinion?  Did it come in directly from Alito or one of his clerks?

Cary Franklin:  Nobody knows.  Well, somebody knows but no one out here knows and there’s been speculation.  I can tell you what we do know.  There have been multiple leaks out of the Supreme Court.  It’s not just the leaked opinion.  There are people close to the court talking to Politico, The Wall Street Journal, CNN and the Washington Post.  And in numerous of those stories, the journalists have identified the leakers as conservatives.  Politico did not identify the leaker of the draft opinion in any way.  So we do know there are some leaks coming from the conservative side.  Whether the draft opinion also came from the conservative side is not known.  I’ll just say the speculation is that it also came from the conservative side because one thing that leaking that opinion does is raise the cost of defecting from that opinion at this point.  So there’s some suggestion that this puts pressure on Chief Justice Roberts not to peel off another Justice to hold everybody in place as of February because if you change your position now, it looks like you might be caving to political pressure as a result of the opinion.  So it makes sense to me that the leak may have been someone who wanted to lock those five in place as of February.

J. Craig Williams:  Well, there are some that have opined that that leak has also done some other things.  It’s caused the abortion activists to rally together and may in fact have a significant impact on the midterms.

Cary Franklin:  It may and as I said, nobody knows who actually leaked it.  You one could imagine lots of — this person may have had idiosyncratic reasons, but I could see someone on the left or someone on the right wanting to leak to affect politics, someone on the left wanting to alert people and wanting to galvanize people for the midterms, someone on the right wanting to reduce the impact or the shock when Roe finally is overruled at the end of June or the beginning of July which looks like it’s going to happen.  You know maybe a little bit anticlimactic at that point because we have this long rollout.  So I think there are all sorts of reasons that could have driven someone, but someone had some political motivation, some ideological motivations to want to get this out there.

J. Craig Williams:  Right.  It also prompted a Senate vote.

Cary Franklin:  it did.

J. Craig Williams:  And that pretty much put everybody on record about who’s voting for what.

Cary Franklin:  As of now, anyway yeah. They tried to enshrine the Women’s Health Protection Act into federal law which would have been an attempt to codify Roe.  That didn’t pass and that’s where we are right now.

J. Craig Williams:  Well, as we talk about this, let’s dive into the opinion a little bit.  There have been a lot of arguments out there that this is quite a slippery slope that it could go back and as far as Brown and start overruling Brown and loving and Griswold and Casey and the whole raft of rights that have come — the unenumerated rights in the Constitution.  What’s your thought about that?

Cary Franklin:  Well, the draft opinion, specifically points to other decisions in the line of cases that Roe was in.  So the decision itself says, there are rights that we’ve protected as fundamental, unenumerated rights under substantive due process, under the due process clause of the Fourteenth Amendment that weren’t listed in the Fourteenth Amendment and those rights include loving, the right to marry someone of a different race; Turner, the right for prisoners to marry; Griswold, the right to use birth control; Moore, the right to live with your relatives and then of course Roe and Casey, the right to have an abortion and then Lawrence and Obergefell, the right to have same sex sex and the right to marry someone of the same sex.  The court explicitly lists, all of those cases and says, they’re all in this line and it announces a test for which of these opinions is well grounded that asks is the right deeply rooted in history and tradition and it looks to see the spanning back 100 years have Americans always viewed this right in particular defined at a high level of specificity as a kind of right that was protected.  Now, that’s why everyone’s saying the opinion renders all those others decisions vulnerable because if you ask is the right to same-sex marriage deeply rooted in American history and tradition, the answer is no.

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Many of these rights are not long — have not been protected for 100 years by statute which seems to be the requirement that this draft opinion is laying out and it said abortion doesn’t count and it’s suggesting that same-sex marriage and same-sex sex and birth control and many of these other things that you can’t find that specific historical protection for are vulnerable.  So yes, I think people are right to say this opinion seems to have a pretty long reach.

J. Craig Williams:  It’s got a long tail.  Well, let’s trot that tail as far back on this slippery slope as we can go back when the founders drafted the Constitution.  There were no women in the room.  There were no women voters.  There were no delegates.  There were no women in any of the state legislators.  Women weren’t even considered persons at that point under the Constitution.  So that we the people, what does that mean now under this draft opinion?

Cary Franklin:  One of the reasons this way of understanding substantive due process hasn’t prevailed for a couple of generations now in areas involving family and sexuality and bodily autonomy is that you’re absolutely right.  If we look at the Fourteenth Amendment which was enacted in 1868 and bars the states from violating due process or equal protection, everything you say is true.  Women didn’t get the vote.  There were several generations to women even got the vote.  Women were not drafting this.  They were not ratifying this.  They were not part of the discussion.  So if the test is the right very specifically defined has to be one that we understood as protected in the 19th century using that very rubric, it’s not going to look good for a lot of folks who historically been subordinated because the very point is their rights weren’t protected.  They didn’t have a voice.  They were excluded from voting and much else besides.  And so in choosing this methodology, you’ve already decided to exclude the voices and the rights of all these people.

J. Craig Williams:  Right, and then we have a compromise amendment in the Constitution for black people that don’t even give them a full vote.

Cary Franklin:  Right.  It has been our constitutional tradition as Ruth Bader Ginsburg noted in one of the notable opinion of hers, it’s been an unfolding of the understanding of what equality and liberty mean over time and I think that the people who drafted these constitutional provisions, drafted them at a high enough level of generality because they understood that what people in the 18th and 19th century understood liberty and equality to mean would not be what Americans forever and all time understood liberty and equality mean.  They wanted this Constitution to endure.  So instead of listing the particular rights that were protected, they said your equality and your liberty are protected and they understood that over time Americans would think about that term and argue about that term and understand that term in new ways, and that’s what the court has been saying for a couple generations now in these substantive due process cases, you know, the right to interracial marriage wasn’t understood to be a fundamental right in 1868 but by the late 1960s, we came to think of it that way, the same with abortion and the same with LGBT rights.

J. Craig Williams:  Right.  All that has changed.  Well, let’s talk about this last three justices who have been confirmed, Gorsuch, Barrett and Kavanaugh, in their testimony before Congress have each said Roe was settled law.  This opinion doesn’t look that way.  How does that shake out? I mean are they held to what they said under penalty of perjury in front of Congress and are there any consequences for them switching from one side to the other?

Cary Franklin:  Well, I don’t think there are legal consequences to them.  I don’t think they’re held to what they say in the confirmation process.  I think it partly shows that the confirmation process is broken and is something of a sham with justices saying – I mean in Justice Clarence Thomas’ hearings, he said he had never really thought about or talked about Roe which is an obviously ridiculous thing to say, but justices on all sides of the political spectrum have taken the tack recently of just not answering questions or just saying something is currently law and I think the ramifications may be more political.  I think that if you’ve gone on record telling the American people that you think one way and then you turn around the next year and vote another way, people may feel that you haven’t been open and honest and that may lead to dissatisfaction with the court.

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And in fact we’re seeing a drop in people’s trust in the Supreme Court recently driven by the view that it’s become politicized and that when Justice Trump said he would appoint justices who would automatically overturn Roe and that appears to be what happened.  People lose faith that this court is really anything other than another legislative body implementing its own policy views.

J. Craig Williams:  And there have been protests as a result of this, protest out in front of the justices’ houses.  Some on the abortion side have said, you know, it’s legitimate to protest in front of their homes because their anti-abortion activists are protesting in front of the clinics where they to pass through that gauntlet.  What you thought about that?

Cary Franklin:  Well, you know — and Senator Schumer was out there saying, “You know, people protest in front of my house all the time and no one makes anything of it.”  You know, I guess my primary reaction would be I’m not sure that protesting outside of the justices’ house is the most effective way to get one’s message across or to get something accomplished.  So I guess I would say that there are better ways to organize and galvanize a movement and that will have to happen if supporters of reproductive rights want to see reproductive rights protected and I suspect that’s where we’ll shift after this immediate aftermath of the opinion.  I don’t think protesting in front of these justices’ house is going to last too much longer, but I do think there will be big protests, marches on Washington, marches in major cities when the opinion comes down and I think there’d be a lot of legislative action in blue states to try to protect folks in those states.  There certainly be activity.  Everybody will be galvanized and motivated by this decision and what way it will all shake out, I’m not sure

J. Craig Williams:  Right.  Well Cary, at this time, we’re going to take a quick break to hear a word from our sponsors.  We’ll be right back.

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J. Craig Williams:  And welcome back to Lawyer 2 Lawyer on the Legal Talk Network.  I’m joined by Cary Franklin.  She is a professor of law at UCLA School of Law and the director of a couple of centers, and we’ve been discussing the recent leak of draft Supreme Court opinion on abortion rights and its significance.  We began right before the break to talk about the states and the federal government.  Let’s talk about states’ rights.  You know, obviously, we’ve got numerous red states that are going to flop and change the abortion rights, and there’s going to be blue states that are going to expand them.  How does that relate to the constitution and what rights the states have to do these things?

Cary Franklin:  One of the great ironies of what’s going to happen this summer is that the draft opinion, and I suspect we’ll see this in the final opinion as well, talks about Roe and Casey not settling anything and one of the reasons why we don’t have to give stare decisis weight to those opinions, in other words follow them as precedent is because they haven’t really produce settled law.  They’ve produced conflict.  The irony is Dobbs, the opinion that will come down this summer is going to produce unfathomable conflict.  It’s going to bring us into areas of law that are deeply unsettled and underexplored, and there are many, many more questions than answers.  So, I’ll say when the decision comes down, probably about half of the states will immediately or in short order bar abortion.  Other states will work to shore up and protect abortion rights, but it won’t end there which each state just doing its own thing because a number of states have already made a move to want to reach beyond their borders and criminalize abortions that happen in states where abortions are legal but are performed on residents of those red states.

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So, somebody goes to California and then returns to Missouri and now Missouri tries to arrest them or Missouri even tries to extend extraterritorially to punish California providers and we’re going to get into major conflicts of law where states are — maybe California is working on bills saying we are not going to cooperate with Mississippi when it tries to reach into California to punish behavior here and Mississippi is going to try to reach in and it’s going to be endless conflict between the states.

J. Craig Williams:  Whatever happened to full faith and credit?

Cary Franklin:  Oh, well, perhaps that will be interpreted — perhaps it will be interpreted that states do need to give full faith and credit to the judgments of other states.  But states like California and Connecticut are already — Connecticut has already passed and California is currently considering laws that say our court system will not enforce your judgments.  Our justice system will not engage in extradition of people to your states.  We will not participate in the regime you’re trying to engage in.  In fact, Connecticut just passed a law that said, if you have a judgment against you another state, you can countersue in Connecticut and recoup the costs that were imposed on you in other states.  It’s a little bit like World War III among the states I think at this point.  But you know, it may all get settled but there’s going to be a lot of battles before there.

J. Craig Williams:  Do we as a judicial system in our country have the capacity to be able to handle this on the heels of the pandemic?

Cary Franklin:  Oh, well, it depends on where do you think we’re – I mean it’s going to —

J. Craig Williams:  We’re not handling it now.

Cary Franklin:  Yeah.  Well there you go.  I mean I think this is straining us to the limits but you know, we current — to the extent we have — to the extent you believe we currently have a functioning judicial system, I believe will limp along as we’re going but it’s a little bit of what’s above this opinion to say.  You know, Roe and Casey have caused foments and unrest and has not settled the law given that Dobbs is going to create a huge number of questions that are going to take a lot of litigation and a lot of court battles to resolve.

J. Craig Williams:  Well, some of those questions I would guess are contraception, birth control, Plan B, condoms, the whole bit.  How far is this going to go?

Cary Franklin:  Well, that’s the question on the table because we’re already seeing Republican lawmakers and political candidates in some of the states that have trigger bands, right? There are obviously going to be an abortion after jobs comes down, but now some of them are talking about restricting access to birth control and they doing that in a number of different ways.  Some states are suggesting maybe we’ll put in parental consent requirements.  Some states are saying maybe we will redefine certain kinds of contraception such as IUDs such as plan B as abortifacients and that way they will also be banned.  And so, I do think it’s not a question of whether they will come after birth control, but in what ways and whether the courts will draw the line anywhere, but absolutely I expect that to happen.  It’s already happening.

J. Craig Williams:  We’re seeing a lot of women complain about what’s a Cialis and the other the blue pill and whatever they’re called.  Any chance that those are going to get outlawed for men?  Is there any going to be regulation on men as a consequence of this?

Cary Franklin:  Well, I think restricting access to birth control has a major impact on everybody.  I think some of these laws raised questions about the legality of IVF which raises questions about whether lots of men are going to be able to have biological children or children through IVF.  Whether they’re going to be able to practice birth control with their Partners, I think it opens up a whole range of restrictions that will deprive not only women but men as well of reproductive autonomy.

J. Craig Williams:  Well, obviously, this opinion is absolutely going to change the landscape for women.  What advice would you give a woman living in a red state that’s facing abortion restrictions that wants to have an abortion especially on the heels of some of this criminalizations going on?

Cary Franklin:  Well, I think first of all and important thing to say is the opinion hasn’t come down.  These trigger bands haven’t gone into effect.  Abortion is still legal in some places.  You should check your jurisdiction, but major restrictions have been put in place in states like Texas and you know generation of laws that have restricted abortion have made it hard to access.  I think one thing to do is look at states like California, who are aiming to become sanctuary states and support women who can get to California.

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I think if you can get to California even with support that is available, that’s one option but not everybody can do that.  I think pills through the mail are going to be a major area of activism and litigation, and we’ll have to see how that all shakes out.  I think organizing and making sure that everyone is aware of what these laws are doing and the fact that the majority of Americans do not support this do not want to live this way and spreading the word about that is ultimately the way we’re going to get out of this.

J. Craig Williams:  You know, this goes back to having a discussion about gerrymandering and the effect of the efforts of the Republicans to control the legislators and over the Trump years kind of influenced the county and city and state ranks with Republicans.  Is it too late for Democrats to, you know, raise the flag and get support on this because of all the things that have gone on over the last five to six years?

Cary Franklin:  No doubt it’s a challenge and I think a lot of people are saying reproductive rights are voting rights and there’s a lot of truth in that and a lot of these gerrymandering efforts, the gutting of the Voting Rights Act, the restrictions at the polls do present challenges.  But I don’t think that the response is to give up.  I think the response is to organize.  I think we have been in situations where the vote was horribly restricted and people were not able to have their voice heard and would just going to need another movement that says we are the majority, we do not want this and works to protect both voting rights that enable the majority to have its voice heard and that works to protect reproductive rights that the majority of Americans support.

J. Craig Williams:  I don’t mean to sound off topic, but we have seen some of this in the past.  We have seen fall selectors.  We’ve seen argument that the state legislatures have the right to declare their own slate of electors to go to the electoral college and ignore the popular vote despite what it may be.  And in states where there are Republican-controlled legislature, do you see that as an issue coming up in the next presidential election?

Cary Franklin:  Yes.  I think it’s a real problem.  I think we have some serious democratic deficits.  I think there have been a lot of efforts to stop the majority from having its voice heard and put into law from the presidential election on down to not being allowed to give people water when they’re standing on line at the polls to strategies to not allow the winner to take office.  All of that has me very concerned and I think it’s all interconnected.

You know, I think the fact that the Supreme Court is currently comprises justices who reflect a minoritarian will and were appointed by presidents who didn’t win the popular vote and were Merrick Garland was prevented from getting on the court and these justices were pushed through.  I think all of this is problematic and I just think, you know, the only way out is to let our voices be heard to stand up, to organize, to investigate this, to call it out, to say we don’t want it.

I’m not — you know, it’s a challenge.  I don’t have any immediate solution and I do think it’s a concern, but I also — the optimistic thing I would say is that people have faced great odds throughout American history in relation to their rights, in relation to voting and we’re in a situation like that now and we have prevailed in the past and I believe we can prevail in the future but you know, I’m not going to argue that the odds are easy or that the challenges are immediately surmountable.  I think it’s going to take a lot of work.

J. Craig Williams:  Have many of the scholars come out and just label this is as the perfect storm of situations you just talked about as a constitutional crisis?

Cary Franklin:  Yeah, I do.  Well, January 6 was —

J. Craig Williams:  Certainly there.

Cary Franklin:  Yeah, for sure and I .  I and I think there’s been a lot of talk just more specifically about court reform in the wake of what’s been happening at the court in the last year or two and the failure to appoint Justice Merrick Garland and the way the current members — some of these members of the Court got there and there’s been talk of either expanding the number of justices or trimming jurisdiction over certain cases.  There was a Supreme Court commission that the president convened.  They stopped short of recommending that we take all these actions, but I think it’s still on the table and people are still interested.

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J. Craig Williams:  But one last question before we wrap up.  What power does President Biden have in issuing executive orders to affect what the Supreme Court may be deciding and what the Senate failed to decide to protect abortion rights?  Is there anything that he has power to do?

Cary Franklin:  He doesn’t have much power over the court, but he has power over certain areas like for instance the FDA and the Department of Health and Human Services and Department of Justice and there are lots of federal regulations that can be interpreted in ways that protect reproductive rights.  There is an argument right now.  I know that the FDA — it removed the restriction that you go to a place — a clinic in person to receive a medical abortion during the pandemic.  It made that permanent.  There are strong restrictions, stronger than on most drugs on medication abortion that are not scientifically founded or evidence-based.  And so there is room within the executive branch and the administrative agencies, but there’s also room for federal law to be made.  And so there’s both executive and legislative moves that can happen at the federal level to expand reproductive rights, but there are some challenges to those two.

J. Craig Williams:  What an interesting discussion.  Well Cary, we would like to take this opportunity to wrap up and get your final thoughts as well as your contact information.

Cary Franklin:  Well, I would say it’s an interesting time.  It’s interesting time of the court.  I think it’s a time in which the Chief Justice of the court has lost some power and appears not to be fully in control of the court.  So that’s an interesting situation that seems to be developing.  I’m very interested to see whether the draft opinion is the final opinion in what ways if any it will change whether that language that calls out the interracial marriage and same-sex marriage, same-sex intimacy decisions will stay whether the courts — we didn’t talk about it so much, but the court tersely dismisses any kind of equality argument.  It doesn’t really talk about women at all in this opinion whether that remains part of the opinion.  So it’ll be interesting to do a kind of compare and contrast when the final decision comes down, but I think we’re going to be heading into a fall of a lot of political activism.  It’ll be interesting to see what happens when the Supreme Court issues a decision that a strong majority of Americans don’t support and what kind of democratic response will be possible

J. Craig Williams:  As we wrap up, I’d like to thank our guest Cary from UCLA School of Law.  It’s been a pleasure having you on the show.

Cary Franklin:  Thank you.  It’s been great to be here.

J. Craig Williams:  This is not the first leak from the United States Supreme Court back in the late 1700s and 1800s.  It was somewhat of a regular practice, but it’s been a long time since we’ve had a leak from the Supreme Court and this caught everyone by surprise.  There have been some subsequent leaks as Cary Franklin identified and some concern about the loss of the right of privacy which is not necessarily anywhere in the constitution but has been inferred and rights that derive from that.  We stand on a fork in the road.

American democracy has taken a big hit in the last six years from the political mainstream, from Republicans and Democrats and the fights that have ensued and the division this country has gone through and it looks like we’re going to take another fork in the road about the religious right against the left saying that abortion is necessary and The other side saying it’s not.  If this opinion changes into a final opinion, I think as Cary indicated, there will be significant litigation that comes from it.  There will be women that get put in jail as a consequence of it.  It’s going to be a mess.

Well, if you have the opportunity, you’ve learned some things from today’s podcast, please rate us on Apple Podcaster, your favorite podcasting app.  You can also visit us at the legaltalknetwork.com, where you can sign up for our newsletter.  I’m Craig Williams, thanks for listening.  Please join us next time for another great legal topic.  When you want legal, think Lawyer 2 Lawyer.

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