On Wednesday, the Supreme Court heard a case that was a frontal challenge to Roe v. Wade, the nearly 50-year-old decision that established a constitutional right to abortion.
The case in front of the justices was about a Mississippi law that bans abortions after 15 weeks of pregnancy.
For the state to win, the court, which now has a conservative majority, would have to do real damage to the central tenet of the Roe ruling.
We explore the arguments presented in this case and how the justices on either side of the political spectrum responded to them.
Guest: Adam Liptak, a reporter covering the Supreme Court for The New York Times.
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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
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This is the day of the Supreme Court.
oral arguments in the biggest abortion case to come before it in the last thirty years. I spoke of my colleague, Adam Attack about how far
Its new conservative majority may go in deciding the future of abortion,
its thirst.
December second,
So when we had you on the show at the start of the term backing
homer. You said this would be the most important Supreme Court term in decades, and a big reason for that is the case that the court heard yesterday so tell us about this case. This case is a true block, but
It's a frontal challenge to Roby weighed the nineteen. Seventy three decision that established a constitutional right to abortion and it s
the court to overrule row and precedents following it
undue that very important precedent and allow states to ban abortions whenever they want to ok. This sounds like
is the big abortion case. I mean the one that people have been thinking about
exactly. Does it challenge row? Listen!
case about a Mississippi law. Mississippi passed a law that would ban most abortions after fifteen weeks of pregnancy rose says you can't ban abortions before the fetus can survive outside the womb, and that
These days is around twenty three weeks. So this moves the line back about two months and that's plainly unconstitutional under row, so for Mississippi to win this case and for its fifteen weak law to survive,
The court would have to do real damage the holding in row, so this actually takes direct aim at the heart of row.
right? Almost everyone would agree that the key holding in Roby Wade was the states cannot ban abortions before feel liability. So Adam
or your expectations. Going into these oral arguments. Why didn't think the court took the case simply to strike down the Mississippi law? All kinds of red states pass laws like this all the time and they routinely struck down by law courts as this one was because its at odds with robbery Wade. So I think they took the case to do something and they took it after a series of new justices had reached the court.
Donald Trump appointed three justice is to the Supreme Court and he said of all of them that he wanted them and expected them
to overrule Roby Wade. So you have a new court and you have them doing something quite unusual and that led me to think they were prepared to uphold the Mississippi law.
The question was whether they do that or even more than that
We will hear arguments this morning in case nineteen thirteen. Ninety two Dobbs verses Jackson, women's health organization, just tell us how the argument started, but the argument starts with the lawyer for Mississippi its solicitor General Scott Steward Robert Wade and plan parenthood
Casey hot our country. He basically says to you: the court has made a grave mistake
getting into this area at all. They damage the democratic process,
ways in the law they ve choked off compromise for fifty years. They kept this court at the centre of the political battle that it can never resolve and fifty years on, they stand alone. Nowhere else to score
I recognise the right to end the human life any urged the judges to get out of the business. Mrs of deciding what
draw the line and to return to the states, the questioner
when to allow abortion, we whether to allow
none at all when an issue affects everyone in the constitution does not take sides on it. It belongs to the people. He says the Kurds
the commission certainly doesn't mentioned the word. Abortion any says it there's nothing in the text, history or tradition of the constitution
that speaks to abortion. One way or the other Rolling Casey have failed, but the people, if given the chance, will succeed
This court should overrule Rowan, Casey and uphold the states thought I welcome the court's questions and how the justices respond. The three liberal justice
Justice is Stephen, Briar, Sonya sort of
Lena Kagan, seem D,
We are unhappy with this line of reasoning.
right of women to choose the right
to control her own body has been clearly set for since Casey and never challenge. They were very much in favour of retaining president's fifteen justices over fifty years have- or I should say thirty since casey- have reaffirmed that basic viability my and to disturb those cases to overruled them simply because we ve had a change in personnel at the court would represent. They set an existential threat to the court. Will this institution survived the stench that this creates in the public perception that the constitution?
in an its reading, are just political acts. Ok, so they're bringing up in politics and being concerned about the appearance of that. What other kinds of areas are they concerned about? Some, whether also deeply concerned about the right to abortion as an aspect of women's equality and women's autonomy? When does the life of a woman and putting her at risk enter the Catholics meaning and rush said that with out access to
more should care. Seventy women can't be full participants in the life of the nation, and now the state is saying to these women we can choose not only to physically complicate your existence. Virtue at medical risks make you poor fibre choice,
because we believe what another concern is that if you overrule RO there, a bunch of cases they used similar constitutional reasoning. We have recognised that sense of privacy in people's choices, about whether to use contraception or not. We fish
nice. It is their right to choose who they gonna marry.
fear. None of those things are written in the constitution.
This sort of my or sit all of those may be at risk if the court overrules row
Why do we now say
that somehow ruined Casey are so one
usual that they must be overturned so, in other words, those cases also don't have specific routes in the constitution itself and if row falls they would also be at risk. Yes, so how will rooted there in the constitution is the subject of a lot of controversy, but I would say that
their similarly rooted in the constitution and justice sort of my, I would say that whatever theory takes out road takes out these other decisions. To now. I note that Justice Amy Cunning Bear it followed up on that
a decision in your favour call any of the questions in the cases are the just the sort of my or is identifying into question.
I think, for a couple reasons
The lawyer for Mississippi,
He said no to know all of those decisions are secure.
failed. These are at leisure cases. They draw clear rules, campaign contraception campaign, intimate romantic relationships between consenting adults can ban marriage of people of the same sex.
Clear rules that have engendered strong reliance interests and they have not produced negative consequences for all the many other. All of those he said are considered accepted in a way that role is not that role is controversial and continues to be controversial.
Among the american public, in a way that say even a right, the same sex marriage, which was quite controversial just a few years ago, has largely been accepted. So am, I feel, like. I have a pretty good idea of where the liberal justices fall in this case, but there are only three of them and there are six conservatives
so I feel like the big question, is: how are the conservative justices seeing this case? What sense did you get from their questions right? Well, the first half the argument was really devoted largely to the liberal justices, asking questions with lawyer for Mississippi. She didn't start to get a sense of where they can
serve active justices were until the second lawyer, the lawyer for Mississippi's abortion clinic got up
argue and then the conservative you started to come into focus.
we'll be right back
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I've had client a step above and banking at Saint Hunter Bank taught com, slash private client. My name is a poor vat, Monday Vallely. I am a science and global health reporter at the New York Times
my job is to talk to scientists to speak their language, to go deep with them and then figure out how
It is relevant to the everyday reader
put it on scientific concepts. For about twenty years. Everything
have learned up to this point, has helped me deliver.
stories about covered. I feel
just an enormous responsibility too
it makes sense of what we are learning about.
Here is how to protect ourselves. I feel, like I
and training for the sharp. My entire life. Everybody at the New York Times is cons.
I'm thinking about asking that have questions and making sure that our readers have all the information they need. But this
relies on. You are subscribers. We need you on board to keep the times as a resource for everyone, if you're, not
I read you can become one. By going to end
time stuck on subscribe to. So what case? Does the other side make
the abortion clinic. That's challenging the Mississippi law that bans abortion before fifteen weeks, Mr Chief Justice and may please the court
Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades
student Julie, recommend a lawyer for their sole, Mississippi Clinic says one first lament this is established precedent. This precedent is
reaffirmed and, moreover, reaffirmed in a ninety ninety do decision Plan Bernard against Casey. There was a very careful in its discussion of precedent and that this is established law.
Certain key see in Rome were correct for a state to take control of a woman.
body and demand that she go through pregnancy and childbirth, with all the physical risks and life altering consequences. That brings is a fundamental deprivation of her liberty. She says
This is necessary for women to be full participants in american life. Did the autonomy of women requires them to me,
able to control their bodies. Eliminating or reducing the right to abortion will propel women backwards. Missis
he's ban with particularly hurt women with the major health are like
change during the course of a pregnancy, poor women were twice
likely to be delayed and accessing care and young people, or those and contraception who take longer to recognise a pregnancy?
to avoid profound damage to women's liberty, equality and the rule of law. The court should affirm. So how did the conservative justices respond to the abortion clinics argument? Will the most active question or on the right side of the court was chief Justice, John Roberts, and he asked a whole series of good
chickens in which he tried to stake out. What, in his mind at least, would be a middle ground
Wait you made about the impact
women in their place in society. Those words certainly
made in row as well. What we have before us is a fifteen weak standard which is still trying to find a way to
All the Mississippi long saying there are fifteen weak line was okay but
not overruling all of Roby Wade entirely in this case. If you think that the issue is one of choice,
that women should have a choice to terminate their pregnancy that supposes that there is a point at which they had the fair choice, opportunity the choice, and why would fifteen we
be in inappropriate line through an east spent quite a lot of time. Doing a couple things in that area. First of all, he tried to establish the viability was not a central part of row, and that would give him the
billowy to draw the line somewhere else.
and second he made the point that you know what's wrong with fifteen weeks. Fifteen weeks gives the vast majority of women he says an adequate opportunity to decide whether to have an abortion or not
so. Roberts is essentially, as you ve told us many times on the show, Adam being Roberts, I mean he's trying to thread the needle here and kind of strike, a compromise in a way that avoids the appear.
that his quarters become politicized, and that means upholding the Mississippi law
and letting row live. That's right and how do the other conservative justices react to this sort of middle road? That Robert is charging.
Well, so almost nobody seems to like Chief Justice Roberts, his approach
Not only is there essentially silence from the other conservative justices on the fifteen weak proposal, even the lawyer, for they Mississippi Abortion Clinic when asked about,
doesn't think that's the right place to land without my body there will be no stopping point. States will rush to ban abortion at virtually any point in pregnancy. Mississippi itself has a six week.
that, its defending with with very similar arguments as its using to defend the fifteen we ban and there she
that without viability is fifteen weeks. Today will be twelve weeks next year in six weeks, the year after
that there are all these laws that are ready to spring into effect. And you know the court not only has to announce a result. It has to give a reasoned and unless chief justice, plus some other justices, are capable of making a principled argument in favour of fifteen weeks, as opposed to just sing sounds ok to me. That does not place a boy,
rights, firm, constitutional footing. Sir Robert is really completely on his own. Here I mean even the lawyer for the abortion clinic,
is saying no, that middle ground doesn't work. That's right. She says the thing to do
who is to reaffirm row and reaffirm veto liability as the line. So you said that other conservative justices aren't engaging with chief Justice Roberts on the middle ground. So then what are they talking about? So my best reading of most of them is that they think this is an all or nothing question
that there's no new place to draw a line. You either affirm row and with it the fetal VI,
Billy line, or you
overruled row and lead states draw the line wherever they want, including in banning
abortion entirely and the two most recent appointees
justice is Amy, Coney, buried and justice. Bread Cavenaugh were thought to hold it.
he's in the case in many ways and were the votes that probably chief Justice Roberts was most hopeful of attracting, but their questioning probably didn't give him very much comfort, Miss recommend. I have a question about the safe haven, Lass, so petition and points out
Then in all fifty states you can terminate parental rights by relinquishing chief justice. Bear it, for instance, talked about the availability of so called Safe Haven laws which give women. The alternative
of bringing their newborn designated hospital soon after birth and turning
over to be a ward of the state by throwing Casey
besides the burdens of parenting and and so
as you and
I have here a Mickey focus on them.
In which the forced parenting forced motherhood would
hinder women's access to the workplace and to equal opportunities. It's us, I think she'd bunches of parents is responding to the argument
It's an enormous burden on
Women's lives in their ability to participate in society to force them to be parents. Why
The safe haven laws take care of that problem. It seems to me that it focuses
the bird much more narrowly. There is without question and in full
went on bodily autonomy, which we have in other contexts like vaccines. However, it doesn't seem to me to follow that pregnancy and then parenthood or up
are the same burden, and so I think she's saying well. Maybe you can force them to take their pregnancies, the term but
liability of safe haven. Lies takes out of the argument that forcing them to be parents piece of it, because it is possible for women to give birth and give up their children suitable seems, like
he's kind of imagining a future in which row wouldn't be there, and this would be the option,
or at least some sort of a future in which this would be a relevant option. I have to think that's why she raised here and what about Justice Cavanaugh your brief. You say that the existing framework
accommodates. That's your word. Both the interests of the pregnant woman in the interest of the fetus, so just
his cabinet says, there are two interests at stake to interest that someone has to balance, that of the pregnant woman and that of fetal life and a problem,
I think the others I would say in the reason this issues hard is that you can't accommodate both interests. You have to pick that's the fundamental problem and why
interest has to prevail over the other at any given point in time, and he says what does the constitution say about that?
when you have those two interests at stake and both are important as you acknowledge, why should this court be the arbiter rather than Congress, the state legislatures state Supreme courts, the people
Being able to resolve this and they'll be different? Answers in Mississippi in New York differ
answers in Alabama than California, because there are two different interests at stake, and the people in those states might value those interests somewhat differently.
Any suggested what it says about it is that this should be a decision for state legislatures and not judges, and
so Sir General Elizabeth, Pre, logger, representing the binding ministration says, that's not the right in
Sir just his cabinet? It's not the right answer, because the court correctly recognised that this is a fundamental right of women and
the nature of fundamental rights is that it's not left up to state legislatures to decide whether to
them or not, and it's true,
different rules, would prevail throughout the country if this court were to overrule row and Casey. But what that would mean is that women in those states who are refusing
honour their rights and who are forcing them to continue to use their bodies to sustain a pregnancy and then to bring a child in the world will have no recourse other than to travel.
able to afford it or to attempt abortion outside
the confines of the medical system or to have a child even
That was not the best choice for them and their family.
She's saying that the court has said in the past that there is a constitutional right to abortion, that women have this right and that that's not something could turn over
the political process, its right, like other constitutional rights that ought to be protected by the courts.
Thank you, general council. The cases submitted the honourable court is
adjourned until Monday. Next, at ten o clock to Adam itself, like what you are saying is that
The conservative justices, with the exception of John Roberts, are all really
Their own way, with their own arguments, driving at this kind of central conclusion, which is that probably role, needs to be overturned.
Is that how you understand it? I think the evidence from the argument is strongly suggest to believe you.
you have five votes to overrule row and only the chief justice to find a way to uphold the Mississippi law, but not overrule row. In so many words, but that's just the argument. The justices will soon cast tentative votes. They'll start writing draft opinion.
Changing them and it'll be many months of deliberation in person in paper before they come to a settled final conclusion:
so, while I do think that the message we take away from the argument, it's not the final decision, which we don't expect until late June early July of next year, and am did it surprise you that John Roberts couldn't get anyone to join him. Yeah did.
I would have thought that there would be some enthusiasm for stopping short of what, if it comes to pass, will be an earthquake in american life.
Is the right to abortion goes
Constitutional right to abortion is discarded in very.
short order in twenty or more states abortions.
Become essentially unavailable in America will be transformed
Adam. Thank you. Thank you, Sabrina,
what we re back, this pot cast is supported by Disney plus with National Geographic, welcome to earth starring Well Smith. A six part original series streaming
summaries. Undesigning plus, through the lens of Academy award, nominated, filmmaker daring earned ascii and with some of the world's top explorers will embarks on an ends of the earth adventure to explore the planet's greatest wonders welcome to earth all apis out streaming December, if only on Disney plus here's. What else you need to know today,
on Wednesday. The first case of the Amazon variant of the corona virus was reported in the United States. Healthcare.
said, the patient, who return to California from South Africa on November. Twenty second was fully vaccinated and has miles-
comes, the patient is in isolation, and close contacts have tested negative
for new governor Gavin Newsome said that the state would not be intensifying public health restrictions, at least for now, and
ten year old boy in suburban Detroit was charged in the shooting. Deaths of forests is classmates ages. Fourteen to seventeen authorities
The suspect had emerged from a bathroom is high school and started firing at students in the hallway
the gun used in the shooting had been bought for days earlier by the suspects father, the suspect, even crumbly, face
for council, first degree, murder and one count of terrorism. If convicted he could face life in prison.
today's episode was produced by Stella TAN, Daniel Combat Luke vendor play with
from Michel Vondra, it was edited by LISA.
How and Mark George an engineered by Marian was honour. Our theme, music is by
Jim Bamberger and Ben Lansford of wonder
that's it for the daily
Sabrina. Tavern easy see tomorrow.
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Transcript generated on 2021-12-02.