From the New York Times. Unlike of about yesterday from the Either movie Wade was decide the car the traditional right to an abortion been seen to such as an inferred right. Not a guarantee, Michael Sabrina. Tyrannies talks to Adam lit about why that distinction has only now become threat to the bar survive. It's one! May twenty so Adam. Take me back to the beginning. What was the basis for Roby Way in a decision? There were other key basis was a case called Griswold versus Connecticut effect at all, and that was a case about a Connecticut law. The forbade people, including Married cup,

he's from obtaining contraception. It wasn't really enforced, it was stupid laughed, but it was on the books and it was challenged. Astronomers gaped at a place called the Supreme Court, wants to strike it down but can easily find the basis in the constitution to strike down because it denies right. My couple that should not be denied This could have tobacco is any constitutional provisions were lying on the due process? Other constitutional provision, which could possibly reliable, we rely on on the costs on the third, fourth and fifth amendment. In so far as I am body and a concept of the right of privacy and identifies the right to privacy, but their right to privacy is that spelled out in the cold.

Addition, so Justice Douglas writing for the majority says he can find it in Penumbra rose and Emily. Actions. What is another an emanation opponent, I, like you know before ghost, were to come into your house, the kind of shadowy halo, part around the ghost would be the penumbra and an emanation. Is you know the things that the Oros did object send out Justice Douglas says it's in there that various parts of the constitution recognizer right to pray Missy, let me read you just a little passage from the Griswold decision, because its it'll put a smile on your face. It says that the the right association contained in the pan of the first amendment, is one the third amendment in its prohibition against quarter soldiers in any house in time of peace without the consent of the owner is another facet of that privacy. The fourth amendment is another facet. The fifth amendment itself, incrimination clause

is another facet? The ninth amendment provides the enumeration in the constitution. Certain rights shall not be construed to deny or despair others retained by the people, so all of these provisions speak to privacy in some since none of them speak to privacy in the sense of a right to contraception in a particularly obvious way, which is why The Griswold decision says you have the kind of put them all together in a stew, and the steam that comes out of them is this right to privacy. They basically taken a piece of the first amendment piece of the fourteenth piece of the ninth and then a piece of something out of the fourth and fifth sprinkle in all third Andy. You have your right to privacy and they created a right to privacy that protects contraception. I think that's fair and people have made fun of it and, as these cases go forward Supreme Court. Justices, try harder and harder to actually locate this right in the constitution

to Adam, tell me about row. How did it go down? ro against way in really: nineteen seventies, civil rights, litigators feminist, Women's rights litigators started to take a Ed laws in states that made it very hard for women to get abortions than essentially band abortions. And in one of them in nineteen. Seventy. A couple of young lawyers go to court and challenge a Texas law that criminalizing abortion. In four busied in almost every circumstance, very broad law became a regulated with the filing Jane row. I unmarried girl gang had gone to bed without provision making an abortion but had been reviewed care because

the law and they don't really have many precedents to work with fairly. We cannot say that there has to take action now dated the right to an abortion but breath. While the course is the primary k, hoping that the state could not interfere in the question of whether or not a married couple we gave birth control, so they largely rely on the Griswold precedent at right. Badia decided and asked is covered in the areas of marriage. Sex contraception, procreation, child bearing and education of children, which bears that there are certain bang men are so much more than the individual and then they should be left to the determination of the individual.

There's a right to privacy and if it encompasses contraception and were already in the world of reproduction, it should also protect the right to abortion is so. The ruling for row is built on the ruling Griswold, which is built on a perceived right to privacy intuited from the constitution, even call it an inference sure I do feel that the night amendment is an appropriate play, freedom to where I think, the Fourteenth amendment eight boy and appropriate right under the right person, alive liberty and the pursuit of happiness. I think any part liberty of meaningful at liberty to the women with me, liberty, problem being fought.

To continue the unwanted pregnancy lying in the argument. Simply on the due process of appointing commandment, we had originally brought the third or lead in both their proper equal protection clause, the knife amendment and a variety of earlier then yeah. I think you have indeed litigators at the time things that this was a shaky. What were the other legal strategies. That would have been available to them at the time in. Why didn't they take them? Well, it was early in the movement in the courts, for women's rights and over time it would come to pass. The many many feminists and others believed. Stronger argument in the privacy right argument was one grounded in equal protection that laws against abortion profoundly disadvantage whim

as opposed to men and hold them back. In their careers, deprived of bodily autonomy and so did and argue grounded in the equal protection clause of the constitution might have been a more powerful argument, but it was too soon simply wasn't an option at the time of RO, because there was not enough legal scholarship on it. But there was not enough court precedent. It took four Ruth bade her Ginsburg to establish The fourteenth amendment initially about raise also had something to say about women, so they want with this relatively recent legal precedent which was Griswold yeah? If I'm a litigator at that time? That's the best case. I got so that's the one, I'm gonna press and it worked in Adam. What's the reaction to the case, The reaction to row is surprisingly tepid. It, Sir too many Americans to be a perfectly

ordinary acceptable, not super controversial Supreme Court decision, but gradually the opposition starts to build and its based in large part on. Why did the Supreme Court make this constitutional right? Why isn't this something that can be decided by people through their legislatures in state houses, and it becomes something that the concern. Of base and religious groups really care about and rose, starts to be a short hand. Food a truly illegitimate decision that becomes you. I mean people know almost no supreme decisions right? They know Brown, we boarded education, maybe they know Bush, we Gore, maybe no citizens, united they know row and they have strong, things about it one way or the other and the entirely feeling start to build by the late seventies so Adam. When is the instability of RO first put to the test?

There were repeated efforts to get in front of the Supreme Court and get row overruled, but the key clash the most important moment in the greatest moment of peril for RO, came in nineteen. Ninety two in a case called plan Parenthood versus Casey. Will you agreement now number ninety one, seven, forty four plan, parenthood of South Eastern Pennsylvania versus Robert P, Casey cases a case about a Pennsylvania law that imposed a whole bunch of restrictions on abortion right, it a very hard for women in Pennsylvania to get abortions, but the way litigators frame the case? Why in so many words should roving. And be overruled. It is opposition your honour that if this court were to change the standard of strict scrutiny which has been the central core of their hold, him in fact that will undercut the holdings of this court. Effectively overrule rovers this way and in there

case a lot of people, including abortion rights activists, thought that ro, would be overruled in fact, part of the calculation in bringing their case to the court in an election year. Nineteen. Ninety two was that if the court was overweening role. Let them pay a political price for it interesting and tell me about that case Adam what happens in case he puts nor from across the powerful amateur urged us to reform in the court tolling email against way decided in nineteen, seventy three, the court to the surprise of almost everyone, from holding a role should be reaffirmed, modified but reaffirmed the right in Rome and three republican appointees. All of them thought to be hostile to abortion. Justices Sandra D, O Connor abortion through our principal relaxing,

thought part compatible and David sooner. If they rose era in row. Its significance is weighed body important who, following prior precedent and Anthony Kennedy at the heart of liberty, the right to define one's own concept of existence, of meaning the universe but mystery of human life. Join together and write a joint opinion saying We gonna reaffirm Euro constitution will protect the liberty of the woman to decide to have an abortion apply. The polluter pays Nobody is much more of a sense that women's rights are involved by the time you get to Casey and, moreover, that respect for precedent require RO to be reaffirmed, because women have come to rely on ruling brutally. There would be nothing less than a break. You say no court that broke his face with people could sensibly expect credit for principle and the decision by which it did that. So in nineteen,

the two we have. What is really now they leading abortion precedent people talk. Ro. Ro is kind of a shorthand for abortion rights, but it's the case decision that govern, this area and key he introduces a different legal standard. It says state can regulate abortion until the fetuses viable rapid woman pregnancy. The state may act measures designed to persuade the women to choose childbirth over abortion away, but can't him was an undue burden. State may not placing undue burden on a woman's right to choose an abortion can't place substantial obstacles between what and their ability to obtain abortions and It sounds like it's a standard that has real teeth, but if you think about it, it's a little bit. Squishy and the world we live in is now the Casey World, not the row world. How is it squishy Adam? Well, what an undue burden. How much burden is due

which burden is undue judges are gonna make up their own minds about that. Is this an undue burden? It's a burden! Is it an undue burden? It's a set of words. Its I mean you and I Sabrina, I know that we'd have a particularly easy time operating imperfect, good faith trying to figure whether a burden is undue or not right, right Adam and ninety. Ninety two, these conservative justices on one hand they help to uphold row. That's on the grounds of a right to privacy. At the same time. In doing so, they make it possible to go after abortion in a different way. Right right, over the decades afterwards. There are lots of abortion restrictions, making it harder to get an abortion, but not shutting down the right entirely part three, because many of them are sustained. Some of them are not down, but

general the right to abortion contracts, but we have Then he Kennedy on the court was a cautious supporter of abortion rights and is the majority in twenty sixteen when the court strikes down a couple of tough Texas restrictions, so this back in worth in ebb and flow Kennedy leaves the court last year, this bread Cavenaugh, more conservative joins the courts, are now there's a five justice conservative majority on the court, and we during your world, one in way Many many restrictions are likely to be upheld and one in which its at least conceivable in the medium term that row itself is at risk. It was only week after birth, Cavanaugh was sworn in. The United States Supreme Court when India appeal, the law that would allow the state to have the final say, not a woman when it comes to abortion. There are laws that place restrictions on the abortion rate, waiting period, it gets harder and harder for women, particularly poor women, particularly poor women in red states to get abortions, but the court doesn't.

To overrule anything. That's one. Category of cases that give us an abortion law upheld on appeal requires doctors to form ultra, sounds and show fetal images to patients before abortions. This category of cases are, these much more extreme laws that reliefs cry to shut down? Abortion is a practical matter. State wide taxes, lawmakers just introduced in extreme bill unlikely to pass that could punish women who have abortions with the death penalty. In the weekend, I so called heartbeat bill that bans abortions. After roughly six weeks has passed the Senate. He's being rapidly put to the house, this fatal heartbeat laws, barring abortions after six weeks with the ink barely dry on Alabama new Abortion law, the strictest in the nation, the movement to push anti abortion legislation in other states is gathering steam, those or squarely in conflict with row. If the court is

to uphold those laws. It would have to overrule row, and that would be a real shock to the system and I don't expect the court to do that, particularly soon when it. Has the alternative of narrowing down being away at hollowing out there, portion right with the headline in the New York Times Supreme Court overruled Roby Wade five to four? So why are these states like Alabama passing these laws that directly Lynch ROW, and what are they really aiming at if they know that the court probably isn't gonna, take them up I think you things are going on. One is its good politics. I think in these states to vote for such laws is good for your elections the second is. Why not ask why not try to force these cases to get up to the court? Why not when you think you have a more favourable climate, give the court the chance. What's the downside, my guess, though, is that because row clearly

does not allow these laws they'll get struck down in the lower courts and then the Supreme Court doesn't have to take appeals. The supreme Court gets to decide what is going to decide and I don't think the Supreme Court in the short term is going to want to take up one of these extra laws in Adam is it that Eventually, one state laws will go to the Supreme Court that doesn't seem like the moment haven't? I was appointed, but enough time has passed that one of these laws will get to I don't know how it happens. My Is that if the court is it, conservative as it is now or moves even more conservative, which is well within the realm, possibility in the fullness of time, by which I mean five years ten years, Finder way to revisit row. I dont think it's gonna happen tomorrow. It's very hard to predict what the context is, what law it is, but this is on the way.

Term agenda of the conservative legal movement and You're within the medium term, it's entirely plausible that the court will overwhelm and at once this happens in the Supreme Court, takes up one of these laws, will the original legal vulnerability. You know that idea that this is all built on privacy. Will that be the kind of thing that litigators go? After sure I mean people will frame what is largely a moral or political argument in legal terms Because row was built on what many legal scholars think was a questionable basis. That's going to be the door you push on but I wouldn t I dont think how to say this. Politely. These cases don't turn on the law.

These cases turn on the desired outcome so it may be that in nineteen, seventy three seven justices were perfectly comfortable in finding that the constitution can paint a right to privacy, one that extended to a constitutional right to abortion and that fifty years later, we have another set of justice is five of whom say no. We can't find it reasoning in the constitution- and that tells you something about constitutional adjudication. It's a little more reform than you would think, it's not tax law. It's a little. Open ended, so Adam is row gets overturned because of this privacy problem would liberal activists just come back at the issue trying to base it around equality if we had a full scan attack on row at the Supreme Court. All of you, arguments would be put before the justice is the first time around. So we wouldn't be like waves of arguments, but for the economy,

the argument to win in setting where the private argument, is lost. You would need different justices on the Court of justice. Who are hostile to row or hostile to row, whether the arguments in support of it are some privacy, equal protection or anything else. They just don't think the constitution speaks of this right and it's not one of those situations where you can go Only nineteen, seventy three Harry Black when the their role and had been reasoning? The right would be more secure today. This is a big controversial. Shall issue and the justices legal opinions will maybe I'm pretty closely to their intuitions about politics and morality.

Thanks a lot at him? Thank you spring president, is distancing himself from the latest state laws passed by report. In Alabama in Missouri, being an abortion, even in the case of rape or incest, ensue he's of carefully worded. Tweets did not specifically mentioned the laws. The president described himself as strongly pro life, but insist on exceptions for rape and insist. His tweets reflect a We fear among national Republicans that the state laws could guinea moderate voters ahead of them? we twenty presidential election. Look. I believe what they did in Alabama is unbelievable. Other states are doing it the

idea that women in this country should not be able to control their own bodies is beyond belief. They have that constitutional right on Sunday, democratic present candidates, including senators Bernie Sanders and Amy Clover. Charm, condition, The new anti abortion was, this is danger It is a place that we have never seen. I think people have always warned that this could happen. Actually happened. I, when I talk to people whether they are pro choice or they are personally opposed to abortion, a lot of them. Chris, don't think we should go in this direction. Set me free for Central America and don't want him we'll do it back.

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