SCOTUS & the Overturning of Roe v. Wade

Episode Notes

Transcript

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J. Craig Williams: Before we get started, we’d like to thank our sponsors Embroker and Posh Virtual Receptionists.

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Intro:  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 write a blog named May It Please the Court and I have two books out titled, “How to Get Sued in the Sled.”

Well, on May 13, 2022, we released an episode entitled SCOTUS, Supreme Court of the United States, in the future of Roe versus Wade.  At that time, a leaked draft the opinion in the matter of Dobbs versus Jackson’s Women’s Health Organization indicated the court was preparing to overturn Roe and our guest on that episode Cary Franklin, spoke about the impact of the leak. The constitutional right to abortion, the role of Stare decisis and the impacts of overruling Roe versus Wade.  Well, here we are, on Friday June 24, 2022, that leaked opinion became a reality.  The United States Supreme Court officially reversed the half century old precedent of Roe versus Wade declaring that portion is no longer a right guaranteed by the constitution and while they were at it, they overruled Casey just some 20 years later.

Well, today, on this episode of Lawyer 2 Lawyer, we are re-joined by Cary Franklin to discuss SCOTUS’ recent ruling on abortion and the potential impact this could have on the nation as well as ramifications for our highest court.  Specifically, its politics, its approval rating, and its trajectory.  And to do that our guest today is Cary Franklin.  She is 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’s currently the faculty director of the Williams Institute, a research institute at UCLA focused on sexual orientation, and gender identity law, as well as public policy.  And she’s also the faculty director of the center on reproductive health law and policy and innovative new center engaging with community organizations, scholars, lawmakers, practitioners, and advocates on reproductive health, law and policy.  Welcome back to the show Cary.

Cary Franklin: Happy to be here.  Thanks.

J. Craig Williams: Well, now, it’s and fast.  Last time we talked it was a draft opinion and there was a lot of speculation about what’s happened but now we’ve got the real thing.  What’s your reaction?

Cary Franklin: Well, I can’t say it’s surprise, particularly since the draft opinion stayed true to form and the draft opinion was largely what we got in the final analysis.  It is a bit — it takes your breath away a bit to see a 50-year-old precedent that influence so many people’s lives, be stricken from the U.S. Reports.  It is a big change in America.  It is a big move by the court.  It’s one of the most important decisions they’ve ever made.  So, it’s just a very consequential ruling and I think everybody’s digesting it and I think we’re trying to digest it in the middle of the chaos that it’s unleashed.  So, folks in con law are quite busy right now.

J. Craig Williams: Well, they sure are and what do you think the general public’s response has been so far?

Cary Franklin: You know, I think there was some polling prior to the decision that Americans didn’t believe that the court really was going to overturn Roe or precisely what that would mean.  I think a lot of people now are really confronting the fact that this court did that, that is an unpopular decision.  According to the polling, most Americans didn’t want the court to overturn Roe.  I think we’re seeing about half the states moving toward near total bans on abortion and we’re seeing a lot of people having their medical appointments canceled.  A lot of people in shock.  A lot of people disoriented trying to scrounge up money to travel not knowing what to do.  There is a lot of uncertainty.  I think it’s certainly set shockwaves through the country.  Obviously, pro-life forces that have been working for decades for this outcome are jubilant but I think for all the mainstream Americans, this is not the direction they wanted the court to head in and I think people are looking for answers and frankly, probably a bit in shock right now.

J. Craig Williams: It’s interesting that you say that because the Supreme Court opinion by Alito says that the majority of opinions are against abortion.

Cary Franklin: Well, Roe decided half a century ago that this was a constitutional right, and it’s true that in the last 50 years, the court has chipped away at that right, but the reality is most Americans who wanted an abortion we’re still able to obtain one.

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Abortion clinics were still operating in every state, and though they were harder to reach and there was longer travel and there were waiting times, there were all sorts of obstacles.  The research showed that most people still were able to obtain abortions in their states.  And now, I think people are having their actual appointments cancelled, and this is a new era.  It is different to say that the court was chipping away then that the court just eviscerated this constitutional right, and we are seeing immediate and cataclysmic effects on the grounds and I’m not sure — I know that lawmakers and the clinics were preparing for this.  I’m not sure the average American, it was really busy and thinking about a million other things was prepared for what exactly this would mean particularly in the anti-abortion states.

J. Craig Williams: One of the surprising things to me on an — just analytical standpoint is that standard of review that the court chose to take in this.  They said that abortion was not a sex based bright which to me is insane logic, but they said because of that, they didn’t have to follow strict scrutiny, they could just follow a rational basis standard.  How did they get past strict scrutiny?

Cary Franklin: Yeah.  So, one of the major impacts of this ruling is now restrictions on abortion are subject to the lowest level of review by the Supreme Court and historically, typically, rational basis review means not only ask did the legislators have a rational reason for passing these restrictions, but can the court even invent one.  Can anyone think of a completely non-arbitrary, non-capricious reason why certain laws or certain restrictions would be implemented.  The basic upshot is when you subject things to rational basis review, there are upheld.  And that’s why, you know, bread and butter daily lawmaking that legislatures engaged in is subject to rational basis review because we don’t want the court second-guessing every single thing a legislature does.  But for the important rights, the rights of constitutional merit, the rights that are deeply held and there are important to people, we generally apply a higher level, the rational basis review, which means that courts are going to take a closer look in the legal parlance, they’re going to subject it to a stricter scrutiny, higher level of review, they’re going to ask more questions about it, is the state really accomplishing its ends, could the state restriction be narrower, and if so, then this broader structure will be like — we’ve moved out of that era now.  That is what the court has said, that if there’s any reason, we can — that legislator posited or that we could think of, then it’s going to survive and the reality is most restrictions will survive under that standard review.

J. Craig Williams: Right, and the court also took the Roe versus Wade Court to task for really failing or they called it legislating.  They said that the court was legislating.  It picked out the three trimesters, it set out a bunch of rules.  It sounded like what a legislature would do.  What’s your thought about that?

Cary Franklin: Well, my thought about it is this, the Supreme Court has historically and for some time now recognized that a constitution is a kind of skeletal framework.  A constitution is not a legal code, it doesn’t lay out every single solitary right and its scope and parameters.  What it does is lay out guarantees like liberty and equality and those are very broadly worded constitutional guarantees.  So, we got this guarantee of liberty against state legislation and equality against state legislation, in the aftermath of the Civil War to protect people’s liberty and social standing and ever since then, the court has interpreted what that means.  It looks to the history and principles from the 19th Century from the framers of the that amendment and saying they cared about liberties that are related to your family, that are related to intimate decision-making, sexuality, bodily autonomy.  These are the kinds of liberties and racial equality, and other forms of social standing equality that they were concerned about, but that we have new insights and understandings over time about things that might fall into those categories that we didn’t previously realize.  Maybe in the 19th Century, we didn’t see that XYZ fell into those categories and now we appreciate that.

That’s what the court has said for the 50 years, when it comes to interpreting the liberty clause of the constitution.  Now, the big change the court has said is without even – frankly, I think acknowledging the countermanding 50 years of this mode of interpretation.  We are going to go back and look at the 19th Century or even —

(00:10:00)

I mean, this court went back to the 13th to 14th Century and we’re going to freeze in time at the moment of long-standing history or at the moment the amendment was enacted, it’s not entirely clear and we’re going to say, what particular liberties did they think we’re protected at that point and those are the only ones we’re going to protect.  That, I actually think is not a conservative, I think it’s kind of a reactionary way to interpret liberty.  It’s certainly not the way that we’ve done it for over half a century.

J. Craig Williams: Well, and it’s frightening because the – in 1776 there were no women, Blacks were not counted fully, there’s a host of differences.  Not even all white men could vote, only property owners could vote.  So, if we’re going to take a deep dive as this Supreme Court appears to have done, claiming that back in 1868, 26 states outlawed abortion and that’s why we’re going back to that because it was a crime.  How far back are we going to go?

Cary Franklin: It’s deeply problematic because women would not gain the vote for many decades.  Women didn’t get the vote until 1920.  So, all of the laws and all of the restrictions that the court was referring to were enacted by white men and women had no say in their enactment and non-white men had no say in their enactment and as you say, it is problematic to freeze the set of liberties that protected in that period.  And frankly, I don’t think it’s very original is because I don’t think that’s what the framers of these amendments intended when they chose these broad words to put in a constitution they intended to endure for centuries.  One of the ways that they thought it would endure for centuries is because it would be interpretable over time and they wanted it to live with us and grow with us and be part of our American fabric and when you freeze it, back then it can’t do that.

J. Craig Williams: Well, the argument loses any credibility when you realize that the constitution itself allows for amendments.

Cary Franklin: It does and the constitution has changed numerous times.  That can cut either way because the majority of the Supreme Court right now and this is something Justice Scalia was fond of saying, amend the constitution.  If you don’t like the constitution as it exists or as it was framed out hundreds of years ago, simply amend it.  We have a procedure for amending the Constitution.  The problem is it is impossible now to amend the American constitution.  It has become — it is a broken amendment process.  A very small minority of people or states can block new amendments.  So, we haven’t had a meaningful amendment really in my lifetime in recent memory and I don’t see that changing.

And so, has the constitution just remained mired in the 18th through 19th century, no.  The constitution has evolved enormously in all sorts of important and felicitous ways because we have our understanding of what liberty and equality means have evolved over time and the Supreme Court has appreciated that.  That process appears to be stopping right now or at least for the rights that this court doesn’t approve of and that is something of a crisis, I think

J. Craig Williams: Back in May, we were talking about the right of privacy and how it extends to the right to marry, the right of prisoners to marry, the right to use birth control, the right to live with your relatives and of course Roe and Casey, you’ve got a situation here where Clarence Thomas, I think, unethically has indicated that he wants to revisit other cases in the realm or the penumbra, you might want to call it, of the constitution here in the right of privacy.  Where are we headed?

Cary Franklin: It will not end here.  I know that for certain, Justice Thomas has said explicitly that he believes we should revisit a lot of the liberty and equality decisions of the last 50 years.  He particularly highlights all the LGBT rights decisions that he doesn’t like.  Justice Alito majority opinion in the case does not say that Dobbs, this new abortion ruling, lays waste to all of those other opinions but the interpretive methodology he adopts absolutely renders those decisions extremely vulnerable because if we’re going to have to ask now were these rights to find very specifically protected in the 19th Century.  Have they been protected throughout American history?  The answer is no.  On same-sex marriage, the answer is no.  On same sex sex and so, although he’s not as candid as Justice Thomas about wanting to revisit some of these precedents, the reasoning he uses, this is his opinion, would have those cases come out the other way.

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And in fact, a lot of those judges in the majority were in the dissent in the 2015 same-sex marriage case, arguing we should look to history and tradition and same-sex marriage is not deeply rooted in history and tradition.  So, absolutely, this decision is just the start.  We will have to see how far it goes, but I think it’s right to be concerned about these other areas of the law.

J. Craig Williams: If I remember my constitutional law professor correctly, there is a line of thought that sometimes cases implicitly overrule other cases, and I agree completely with you that the logic and the reasoning that’s used in Dobbs, if it’s in fact the case has an implicit overruling of the right of privacy.

Cary Franklin: The court says that’s not what it’s doing.

J. Craig Williams: On one hand.

Cary Franklin: Right, on the one hand, it says, that’s not what it’s doing.  On the other hand, it’s sort of adopts and approach that would seriously undermine and I don’t think that’s a good or stable place for the court to be to try to say, good for one ruling only, we’re just going to adopt this theory but we’re not necessarily going to apply it elsewhere.  For one, it renders the law very unstable and unclear exactly what rights you can rely on.  And two, equally important, I think, it gives the court an enormous amount of power because I think now the court can just decide based on non-constitutional principles but kind of political or policy principles where it wants to stop, where it wants to draw the line, how far it wants to go and that is not what the Supreme Court supposed to be doing.

J. Craig Williams: Well, the troubling aspect about this whole thing is given what Justice Thomas said, he didn’t begin to touch loving.

Cary Franklin: I think there’s been a lot of dialogue around loving because loving is that all important decision from the 1960s that said there’s a constitutional right for white people and non-white people to marry one another.  And that was kind of a watershed moment in American history and obviously something greatly to be celebrated.  I think the conservative’s response when people bring up loving and are worried that this Dobbs decision may undermine loving, is to say, you know what, loving actually was an equality decision.  So, even if we wipe out all the liberty privacy line of cases, like the abortion cases, and the gay rights cases.  Loving is okay, because loving rests on equality and says, you can’t discriminate on the basis of race.  And so, I actually think that would be the conservative response if people challenge loving.

But what I want to say is, this is just another area where I think there’s inconsistency.  I think there’s cherry picking, I think there’s picking and choosing because, Casey, some of the abortion jurisprudence also rested on equality principles, about women’s equality and they’re equal citizenship and their ability to get education and seek employment opportunities and how reproductive rights are interwoven with that.  So, those were hybrid liberty equality decisions too.

So, if you tell me loving is hybrid liberty and equality, it’s okay, it’s something other, I think, than constitutional principle.  I think it’s politics and I think probably this court has no appetite to overrule loving.  But I don’t believe that’s because there’s some neutral and objective constitutional decision making going on here.  I think it’s because they prefer some rights and just favor others.

J. Craig Williams: Well, Cary, I have to admit here, I’m just been fascinated with our conversation and we need to take a quick break to hear a word from our sponsors, will be right back.

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And welcome back to Lawyer 2 Lawyer.  I’m joined by Cary Franklin.  Professor of Law at UCLA School of Law and Cary, what you were talking about, right, before the break was essentially, the legitimacy of the Supreme Court at this point.  Where do they stand?

Cary Franklin: Nowhere good.  Nowhere good.  Gallop has done some recent polling.  Americans’ approval of the Supreme Court is about 25%.  That’s the lowest recorded approval rating in history.  There are a lot of unpopular decisions that this court is rendering.  But, also I think Americans which whichever of the decisions they approve or disapprove of can see that this court has become highly politicized and they see that Donald Trump promised certain outcomes, appointed justices that he said would do those outcomes.

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Those Justices are appointed low.  They deliver on the republican party’s promises and Americans don’t want the court to be an adjunct of one of the political parties.  They don’t want it to be nakedly political and enacting a party platform.  And I think the courts in consistency, its reactionary nature, its adoption of one approach in the abortion case, another approach in the gun case, its invention of new doctrines in the EPA case, it seems to be stacking the deck and moving about how it likes as a political actor, and Americans can see that.  And that’s not how they want their court to behave.  So, this court has, I think, fairly enough and rightfully enough sunken Americans estimation.

J. Craig Williams: So, what’s the remedy? I mean, where do we — haven’t heard much from the executive branch of the government.  There been a lot of different screams from democrats and so forth, but no one seems to have a plan.

Cary Franklin: I think the response from the executive and legislative branches of government have been underwhelming, have been disappointing.  I didn’t think — I was not expecting spectacular things from congress or frankly, the Biden Administration but they have probably underperformed even relative to where I thought they might.  I don’t think there’s enough attention being paid.  I don’t think there’s enough being done.  I mean, congress is — it seems stymied and unable to act, the administration is not doing everything that it could in response to these decisions.

I don’t have much positive to say about the actions of these other branches of government.  The answer, you know, this is a disappointing answer to a lot of people although I think a better way to look at it as an energizing answer, we ultimately in this country still the people do control and the only way to get out of this is through voting through changing the state legislators through an acting leaders who will appoint justices, who do the law instead of the bidding of one political party.  And I think that is going to take some time.  But I do think, at least at the moment, that’s a viable route.

I’ll leave aside the question of where our democracy is headed and whether we’ll have one in years forward but assuming that we continue having free and fair elections, I do think the midterms and the next presidential election will be a times that Americans can speak their voice and can take back this democracy and it’s not going to be easy, but it’s the only way out.

J. Craig Williams: Is it really too little too late.  I mean, we all know that the republic has been organizing for years and gerrymandering and putting in blocks to voting, there was just an opinion overturned, you had to show a proof of citizenship to vote.  We all know where that law is and has been for a long time, but is it really too little too late?

Cary Franklin: I don’t think it’s too late.  I don’t think it’s too late.  I think the hurdles are enormous and I think that everyone who cares about preserving our democracy should get involved and get active and research how they can help and organize voters and make calls and send postcards and work at polling places and do whatever is possible.  I don’t think it’s too late, but I do think you’re right that as time goes by, there are increasing barriers to voting.  It’s just getting harder and harder for people to make their votes count or even cast a ballot and it’s kind of a five-alarm fire.  I think people are waking up to this.  I am not despondent.  I’m trying to see this as a moment of hope and energy where people are aware and stand up and say, this is not what we want.  We want every American to be able to vote.  We want the well of the people to be reflected in government.  I do think a lot of Americans are upset and I think the thing that could defeat us even more than these obstacles is demoralization.  I think some of these obstacles, part of their intended effect is demoralization and we can’t let that happen.  We have to step up but it is not easy and I know a lot of people are frustrated that that’s all that’s on offer, but that’s the way out and I guess, I would just say, look at history, the Civil Rights Movement, they fought against enormous odds for decades and decades and decades and they kept fighting and now is the time where Americans are just going to have to get to work and keep fighting.

J. Craig Williams: Right.  Well, Cary, it’s time for another quick break to hear a word, from our sponsors, we will be right back.

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J. Craig Williams: Welcome back to Lawyer 2 Lawyer.  I’m back with Cary Franklin.  We’ve been talking about perhaps the destruction of democracy if I’m going to over exaggerate it.  I don’t know that we’re there but certainly we’re staring it down.

Cary Franklin: I also hope we’re not there.  I hope we can pull back from the brink.  I think there are a lot of people across political party.  I think there are a lot of Americans who do believe in everybody voting, who do believe in fair elections, who want that to be the case who are following the January 6th hearings, who believed that we took a wrong turn.  I think some things are harder than others.  I think the Supreme Court is going to be a problem for some years to come, and that probably isn’t the way that people who are interested in democracy, liberty and equality will do their work but that’s fine.  There are other avenues and other branches, especially through organizing and voting and legislation.  And that’s why it’s so important to work on the state level to make sure there’s fair voting, to make sure that state legislatures hear what people are saying and reflect the people’s views.  I do think those are more promising avenues than the Supreme Court in the foreseeable future.

J. Craig Williams: We certainly had, as you mentioned, some 26 states which kind of mirrors the situation back in the 1800’s, I think, who have started to enact trigger laws what is going to happen with the full faith and credit portion of the constitution and other states simply saying we’re not going to enforce those judgments.

Cary Franklin: I would describe the situation on the ground right now as chaotic in this area.  We have lots of states and lots of lawsuit — lots of states trying to pass laws, restricting and barring abortion or trying to bring back laws that row stopped.  These are already all tangled up in the courts.  Some of them have been stayed.  The courts are trying to figure out right now what’s constitutional and what’s not under state law.  I think some of these older laws will be problematic.  They may be antiquated, out-of-date, they may be too vague.  So, a lot of these challenges are going to just have to work through the state courts.

It’s interesting we’re seeing a lot of activity in anti-abortion states to pile law upon law but we’re also seeing, as you note, activity in reproductive freedom states to go the other direction.  To amend their constitutions.  To put the right to abortion in the constitution.  To pass laws, codifying row at the state level and to pass laws protecting providers and patients in reproductive freedom states from attempts by anti-abortion states to reach across borders, you know, for Missouri to reach into California and try to arrest or impose fines on people in California.

I will say the law is just underdeveloped in these areas.  We are going to be back in court about a lot of this.  One thing I can say that was quite interesting is that Justice Cavanaugh went out of his way in his decision in Dobbs, the abortion case, to say that he thinks the constitution prevents – sorry, protects a right to travel.  And then he thinks if a state tried to bar its people from leaving the state to get reproductive health care, that that would violate a constitutional right to travel.  That was very interesting because it suggested that all the justices and the majority in overruling Roe might not be on board with all of these new attempts by states to try to reach across Borders or prevent people from leaving their states.  So, it’ll be interesting.  We are going to have to have a lot of litigation before the dust finally settles on this.

J. Craig Williams: I’ve seen some scholars like in the failure of the Equal Rights Amendment as the death knell for it as well as a potential ruling from this court that was strike down women’s rights, do you have any thought on that?

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Cary Franklin: Well, in terms of activity at the federal level, I think that there is talk on both sides.  There’s talk about codifying Roe.  There’s talk about passing a federal law barring abortion.  There’s talk about reviving the Equal Rights Amendment and trying to get that passed.  There’s talk about at the state level trying to –New York state is working on an Equal Rights Amendment to its state constitution that would try to do that work.  Other states have State Equal Rights Amendments.  There are already arguments underway under those Provisions.  That say at the state level abortion is protected.

I kind of — this has kicked up a million questions and a million possibilities and I don’t think this is the end of anything.  I think this is the start of a lot of lawmaking and a lot of organizing and I think one thing that I can say for certain is I think the states will pull farther and farther away from each other.  So, I think you will see the experience of living in a blue state and the experience of living in a red state become even more profoundly different in your basic and fundamental rights will now be even more dependent on where you are born or where you live in a way that may be unstable and seems problematic.

J. Craig Williams: Wow, that’s kind of frightening.  What do you think is going to come out of this in terms of do we think we’ll see filibuster change?  Do you think you’ll see packing of the court come up as alternative?  Any of them be successful?

Cary Franklin: Well, President Biden has said he would be in favor of lifting the filibuster around codifying Roe.  So, potentially that will energize people around these new elections and change could happen there.  This president hasn’t made court reform his top priority.  So, that is a suggestion that increasing numbers of scholars and folks and they’re just regular Americans have brought up and I’m thinking about.  I haven’t seen a real emphasis out of this Administration on those reforms.  Again, congress is mired down in whatever congresses mired down in.  Theoretically, those are all possibilities and people are working for that and I’m not going to say it can’t happen but I don’t think the current configuration in this administration and this congress is immediately going to pursue any of that.

J. Craig Williams: Well, Cary, it looks like we’ve just about reached the end of our program.  So, I’d like to invite you to share your final thoughts and your contact information if listeners would like to get a hold of you.

Cary Franklin:  Sure, well, I’ll start with the latter.  My name is Cary Franklin.  I’m a law professor at UCLA and please look at the website of the Center for Reproductive Health Law and Policy at UCLA.  We have lots of interesting resources and videos and I encourage you to check that out and I guess, I would say my final thoughts are, this is — in my view, terribly cataclysmic event in American history, I do think there will be a lot of suffering and I do think a lot of people’s lives will be distorted and curtailed in ways that shouldn’t have happened.  But I also think that it’s essential to maintain hope and to keep working for your vision of freedom and to remember that there have been lots of periods in American history when a lot of people weren’t fully enfranchised, weren’t accorded full and equal citizenship and they’ve struggled through and we just need to continue to do that so that everybody has the promise of Liberty and equality that the constitution granted us.

J. Craig Williams: Cary, thank you so much for joining us again on this tremendously important topic.  It’s been a pleasure having you on our show.

Cary Franklin:  Thanks for having me.

J. Craig Williams: Well, as Professor Franklin said, we’re at a big juncture in history and the involvement of the public will determine how in which way we go.  So, my only suggestion to you at this point given that we really don’t have any plans from our leaders to deal with it is to get out and vote and express your opinion.

Well, for our listeners, if you’ve like what you heard today, please rate us on Apple Podcast or 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, join us next time for another great legal topic.  When you want legal, think Lawyer 2 Lawyer.