0:00:01.5 S?: We'll hear arguments on number 18, Roe v. Wade.

0:00:08.5 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Roe v. Wade.

0:00:18.8 S?: Good evening. In a landmark ruling, the Supreme Court today legalized abortions.

0:00:23.9 S?: In two related cases and eight separate opinions, the nine Justices made abortion largely a private matter and ordered the states to make no laws forbidding it, except possibly during the final month.

0:00:36.2 Leon: This is the first episode of a two-part series in which the hosts examine the legal right to have an abortion, how it came to be, how it rallied the conservative movement and how it has been gutted by the courts.

0:00:47.1 S?: We're seeing the true colors of the anti-abortion movement. For years, they have chipped away at the right to abortion, passing restriction on top of restriction, pushing abortion care slowly out of reach for many people.

0:01:00.1 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:06.2 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our civil liberties to disappear, like Amelia Earhart over the Pacific. I am Peter. I'm here with Michael.

0:01:18.4 Michael: Hey, everybody.

0:01:20.6 Peter: And Rhiannon.

0:01:21.6 Rhiannon: Hi. Hi, everyone.

0:01:23.1 Peter: I like to think of the Supreme Court as like a Bermuda triangle for your civil rights, you know? Your right to vote last seen flying somewhere near John Roberts.

0:01:35.7 Rhiannon: Yeah. Listen, considering the subject matter of this episode, I'm just relieved honestly that the metaphor was not an abortion metaphor, so thanks, Peter, for your restraint.

0:01:44.2 Peter: Yeah. You're welcome.

0:01:45.1 Michael: That's part two.

0:01:47.9 Peter: Yeah, happy New Year, guys. First episode of 2021, and so far, only one violent coup attempt, so going great, I think. How are you guys doing?

0:02:02.8 Rhiannon: Oh, God.

0:02:05.2 Michael: Yeah.

0:02:06.9 Rhiannon: I don't feel anymore. I perceive, but I don't feel.

0:02:10.1 Michael: Right. We might have to update that before we publish.

0:02:13.8 Rhiannon: Yeah, yeah. Might be another coup. This coming week.

0:02:16.8 Michael: We can't rule it out.

0:02:17.7 Peter: That's true.

0:02:18.6 Michael: There is some demonstration planned, I think the day before Inauguration, so get excited.

0:02:24.3 Rhiannon: Great.

0:02:24.7 Peter: You know those signs that are like days since the last accident at a workplace? We can just pop one up at the Capitol. Days since the last coup.

0:02:34.5 Rhiannon: Love to live in a failed state, baby.

0:02:37.1 Michael: Yeah.

0:02:37.9 Peter: So this is the long-awaited abortion episode. And more specifically, this is part one of our two-part series on the rise and fall of Roe v. Wade. Most of our episodes are us criticizing a case, but that's not what we're doing today. Today we are telling a story about how Roe v. Wade gave rise to a right-wing reaction that has left a deep imprint on modern law and modern politics. Row v. Wade found a constitutional right to abortion in 1973, and now in 2021, multiple states have only a single clinic left. And this is sort of the story of how that happened, not as the result of popular will, but as the output of a concerted legal strategy designed by conservatives and endorsed by the right-wing of the Supreme Court to limit the availability of abortion services in this country. And moreover, it's the story of how the conservative legal movement weaponized Roe to champion its reactionary view of the law.

0:03:36.4 Rhiannon: Yeah, just to say, I feel like maybe our usual episode is like criticizing one case and we don't so much have that here, but worry not, the Supreme Court still sucks.

0:03:46.3 Michael: That's right.

0:03:47.0 Rhiannon: And the story of Roe, even if Roe v. Wade is not a case specifically that we drag through the mud, the story is still very much about how the Supreme Court is awful.

0:03:58.0 Michael: And also, if you're a liberal law student who is like, "Oh, I know how this episode is gonna go, they're gonna say it was poorly reasoned, or was badly written or whatever." Wrong, bitch.

0:04:09.6 Rhiannon: Stay tuned, buddy.

0:04:11.1 Michael: We like Roe V. Wade.

0:04:13.0 Peter: We do. We often speak on this podcast about the disingenuousness of the conservative legal movement, because they claim that they are simply concerned with the correct interpretation of the law, and in reality, they are driven by their right-wing politics, and Roe v Wade is a great example of that. Conservatives claim to believe that it was a bad decision because it improperly interpreted the Constitution and maybe they even successfully convinced many liberals that that is the case, but that's not why they think it was a bad decision, we assure you. They think it was a bad decision because they are anti-abortion.

0:04:49.6 Peter: And it's important when thinking about this case to understand the conservative psyche in the early 1970s. Roe comes on the tail-end of 20 years of seminal wins for the left at the Supreme Court, from the end of segregation to the protection of civil rights. And that wave of rulings also included the development of rights to personal privacy, which encompassed contraception, and then in Roe v. Wade itself, abortion. And Roe is sort of the straw that breaks the camel's back for conservatives and really drives a narrative that there are like these liberal activist judges who are lording over all of us and making the law, a narrative that is still very influential today and continues to provide a frame for the ideological position of right-wing jurisprudence.

0:05:34.3 Rhiannon: Yeah.

0:05:35.8 Michael: Right, exactly. And the conservative response to Roe was to organize. They rallied politically around anti-abortion sentiment, helping create the foundations of the modern Republican coalition, and they rallied intellectually around a conservative view of the law. The liberal Supreme part of the '50s, '60s and early '70s understood the Constitution is a document that can be read flexibly, and it's something that we should see to protect citizen's rights. But instead, the conservatives reacted by strategically embracing this rigid, inflexible vision of the Constitution, which gave them a framework to reject not just abortion rights, but progressive goals entirely. And they use that framework to portray Roe v. Wade as incorrectly decided and have spent nearly 50 years gaslighting us all about it and tearing at Roe v. Wade's foundations.

0:06:32.1 Rhiannon: Exactly.

0:06:32.9 Peter: Yeah, absolutely. So like I mentioned, this is going to be a two-part episode, and today we're talking about Roe v. Wade and how it came to be, how conservatives reacted to it, and how that sort of shaped the conservative legal mind. And we thought it was worth a two-part episode because there's another part of the story, which is how they have responded in the courts, and that'll be part two when we tackle Planned Parenthood v. Casey and the subsequent cases after that, up to the modern Supreme Court.

0:07:06.1 Rhiannon: Yeah, that's right. Another thing that I just want to note up top is that throughout this episode and the next one, the second part of our abortion extravaganza, we will be talking about "women's right to choose" and women getting abortions, we'll be talking about laws affecting pregnant women and mothers. But we should say, of course, that it's important to recognize that women are not the only people able to get pregnant or need full access to reproductive healthcare, any discussion about reproductive rights is fundamentally, it's necessarily about trans rights too. So we will be parroting a lot of this kind of gender essentialist language, because that's how the Supreme Court and everyone was talking about it at the time. And also in doing that, we can hopefully be highlighting throughout the discussion in both of these episodes how these really patriarchal and limited conceptions of gender are exactly one of the problems with these decisions.

0:08:07.5 Michael: That's right.

0:08:08.6 Peter: So before we get into Roe here, let's set the stage a little bit. To understand why conservatives got so upset by Roe, you need to understand some of the legal history. The Fourteenth Amendment has a clause that says that no state shall "deprive any person of life, liberty, or property without due process of law." Obviously, that's a slightly vague clause, and many scholars and judges historically read it in different ways. The Court has largely read it to be less of a procedural protection and more of a substantive protection that protects people's liberty. Because of that, it's been referred to as the substantive due process clause. And the basic idea is that certain rights are fundamental to our liberty, and therefore should be protected under the Constitution.

0:08:52.8 Peter: The first time it was consistently applied by the Supreme Court was in the early 1900s when the Court said that it protected the rights of citizens to enter into contracts with one another. That was what was referred to as the Lochner era, named after the case Lochner v. New York, and resulted in widespread exploitation of workers by their employers until the case was overturned in 1937.

0:09:19.5 Michael: What, you don't think seven-year-olds have the right to enter into a contract with Tyson Foods to work 14 hours a day for $3 an hour?

0:09:29.2 Peter: That was the gist of it.

0:09:30.1 Rhiannon: Their little fingers are perfect for the machinery, hello.

0:09:36.5 Michael: Think about all the money you can save if you make the machines like a third of their current size.

0:09:41.7 Peter: That's right. Plus, you save ink with their tiny signatures. So, it's important to note that the general idea that the Fourteenth Amendment protects these basic liberties is fairly agreed upon at the point of the mid-century, that is to say that there is more or less academic agreement that the Fourteenth Amendment protects rights that are not explicitly laid out in the Constitution.

0:10:07.2 Michael: Yes, that's right. And the next time this comes up, the substantive due process clause of the Fourteenth Amendment sort of takes center stage is in 1965 in a case called Griswold v. Connecticut. And in that case, the Court held that the Fourteenth Amendment protected the ability of a married person to buy and use contraception. And it said people have a right to privacy, and that right prevents the government from intruding on their private choices, including the use of contraception. And there's no explicit right to privacy in the Constitution, there's in some Amendment you can't remember right now that says that, but the Court says, look, the Fourteenth Amendment protect citizens' liberty.

0:10:52.4 Michael: And if you look across the other Amendments, it's clear that part of that liberty includes the right to privacy. It's in the First Amendment, the government can't tell you what to say or how to worship. It's in the Third Amendment, they can't commandeer your home. The Fourth Amendment, they can't search your house or your person. Underneath all that is this idea of your autonomous zone around you, that that belongs to you. And so the Court says, look, that can't be readily infringed by the government, so even though the right to privacy is not explicitly there, it's implied by the Constitution's protection of liberty and other provisions of the Bill of Rights.

0:11:29.3 Michael: And this train of thinking was going on through a bunch of their decisions in the '60s as well. It underlied Miranda, it underlied some cases about the right against self-incrimination. The Court was very interested in this sort of small L libertarian idea about the government staying out of your shit, basically.

0:11:48.8 Peter: Right. So the idea broadly is that you have this constitutional right to make decisions in your personal life that just affect you, and the government doesn't have the ability to intrude on that. And a couple of years later, the Court strikes down a ban on interracial marriage in Loving v. Virginia, primarily on the grounds that it violated the equal protection clause, but also that it violated the same Fourteenth Amendment substantive due process clause, holding that the right to freely marry, similar to the right to privacy, is a right that's fundamental to your liberty. So that's sort of a very short version of where we are when we get to Roe v. Wade in 1973.

0:12:27.6 Rhiannon: Yeah, yeah, so to shift a little bit and start talking about women's access to full reproductive healthcare and just kind of abortion laws at this time in the early '70s. If we did a survey across the United States, 30 states, including Texas, had blanket bans on abortions. So, they prohibited doctors from performing abortions completely, unless it was necessary to save the mother's life. And these laws had basically been in place since the mid-1800s. Some other states at this time had started to change their laws to permit abortions in more specific circumstances, such as when pregnancy endangered the woman's health, if the pregnancy was caused by rape, for instance, or if the fetus had a very severe defect, but otherwise abortion is by and large prohibited.

0:13:20.4 Rhiannon: So, of course, this didn't stop people from seeking out abortion care or trying to terminate pregnancies on their own. Scholars and historians estimate that before Roe v. Wade between 20 and 25% of pregnancies in the US ended in abortion. So there were some licensed providers in big cities that you could have access to if you had the resources at the time, and there were underground networks of non-licensed abortion providers, but much of the time if you found yourself pregnant and you wanted to terminate that pregnancy, you were on your own.

0:13:56.3 Rhiannon: Actually, a Washington Post series in 1966 covered how women in the Washington area obtained illegal abortions, and some of the language in that series highlights, like on the one hand, what a grave risk it was to get an abortion at that time, but on the other hand, how widespread the practice was nonetheless. So this article says, "Humiliation, agony and the risk of sterility or death do not deter American women from ending an average of one out of every five pregnancies by abortion." Going back to the point about having some access to a safer procedure, if you were wealthy, this same Washington Post piece discusses the process for basically getting psychiatrists to write up false justifications for why a woman needs an abortion, and then you would take that paperwork to a gynecologist, and you sort of wink and nudge and then the gynecologist would perform the abortion.

0:14:52.2 Rhiannon: The cost in 1966 for that whole sort of hoop-jumping procedure was $600, which in today's money is almost $5000. So just wanting to highlight the role that geography and wealth played in people's access to reproductive freedom and reproductive choice and safety back then, and note that here we are 60 years later, and we are kind of back at that point where geography and wealth play this really big role in people's access to reproductive healthcare. We should also talk a little bit about what the Supreme Court looks like in the early 1970s. So Chief Justice at the time is Warren Burger. We have talked about him before. Not smart, dumb guy.

[laughter]

0:15:37.0 Michael: Unimpressive.

0:15:39.5 Rhiannon: And he assigns the Roe v. Wade decision to Justice Blackmun. There's a majority consensus on the Court among the Justices that all-out prohibitions on abortion, like the one in Texas, they are, yeah, probably an infringement on individual rights, but no one wants to put their name on this decision. And Justice Harry Blackmun is new on the Court as of the early 1970s, so he's just kind of like the rookie who gets assigned this decision that nobody wants to write because it's complicated and it's lady stuff, like who gives a fuck about that.

0:16:15.1 Rhiannon: So no one at the time on the Supreme Court, none of the Justices think that Roe v. Wade is going to be a massive decision that has sort of wide-ranging effects. But Justice Blackmun has a background in working with doctors, so before he was a judge, he worked as general counsel to the Mayo Clinic for many years, and so Blackmun sort of takes doctors and medical science seriously. There's a liberal belief at the time among the Justices, a belief in medical authority and deferring to it, and so just want to note that, that you see throughout the Roe v. Wade decision Blackmun referring to this choice that's made between a woman and her doctor, and talking about how the state shouldn't really be in that zone.

0:17:04.3 Rhiannon: Now, moving to the people at the center of Roe v. Wade, the plaintiff herself and the lawyers. So there are these two women, Linda Coffee and Sarah Weddington, they're both law grads from the University of Texas, and they both struggled to find work as lawyers after they graduated. In Texas at the time in the mid-late '60s you had to have the backing of a man to get a fucking apartment, so it's not like you just graduated from law school as a woman...

0:17:33.1 Peter: Financial backing? Or just a thumbs up?

0:17:35.3 Rhiannon: You have to have a letter of recommendation.

0:17:38.1 Peter: And I would do that for any female listener of our podcast. If that's what it comes to, you never know with this Court, I'm just saying.

0:17:45.8 Rhiannon: Thank you, Peter.

0:17:47.9 Peter: You're welcome, ladies.

0:17:48.3 Rhiannon: Like I said, we're back to the late 1960s in a lot of ways. So by 1970 Sarah Weddington had come to work with a group of law students and grad students in Austin who were looking for ways to challenge abortion prohibitions across the country, and Weddington called Linda Coffee asking her to join on the project. A month later, Coffee got a referral for a potential plaintiff from a lawyer friend who did family law and adoptions, and he told Coffee that a woman had come into his office seeking a referral for abortion services, legal or illegal, that she was unhappy with her pregnancy and wanted to terminate it. Linda Coffee eventually met with this woman and that woman would become known as Jane Roe.

0:18:35.3 Rhiannon: So Jane Roe's real name was Norma McCorvey. There's a lot to be said about Norma McCorvey's life and the politicization of her life, but suffice to say at this time, in 1970, when she's meeting with Linda Coffee at a pizza restaurant in Dallas, she's a 23-year-old single woman. She lives in poverty, she is struggling with disordered substance use, and she desperately does not want to be pregnant. So Linda Coffee and Sarah Weddington file a lawsuit challenging Texas's Law, which again, totally prohibited any abortion at any stage of pregnancy, except in the instance that it was necessary to save the mother's life. So they filed their lawsuit in Dallas County, and since the district attorney at the time, the person who would be enforcing compliance with state law, was Henry Wade, Wade was the named defendant, so that's how we get Roe v. Wade.

0:19:27.8 Rhiannon: But in terms of how the case gets from District Court in Dallas to the Supreme Court, that lower court actually agreed with Norma McCorvey, with Jane Roe and her attorneys, and they said that the Texas law was void, they struck it down. But the court also granted a stay of its order until the appeals process was over. The appeals process and the Supreme Court decision would still take another two years. In the meantime, Norma McCorvey didn't get the abortion care that she had been seeking, and she carried her pregnancy to term and she gave the baby up for adoption. So I think that brings us to some law stuff.

0:20:10.3 Peter: Yeah, so the law outlined by Roe v. Wade is actually fairly simple. If you recall, the Fourteenth Amendment substantive due process clause has been interpreted to protect certain fundamental rights, including a right to privacy. And in Roe, the Court holds that that right to privacy encompasses a woman's decision to terminate her pregnancy. So as a result, the Court strikes down state laws that function as near total bans on abortion. Now, this is in many ways a great opinion, but before you read it, you need to firmly situate yourself in the brain of an old white man in 1973. Justice Blackmun writes a majority, like Rhi mentioned, this is early in his tenure, but he is 64 years old.

0:21:00.3 Peter: He would ultimately become one of the most persuasive left-leaning voices on the Court in history, but even so, these are distinctly different times. So the opinion starts off by describing the plaintiff as a "pregnant single woman." Immediately stating her marital status as if it is paramount to understanding her identity and the case, it's already you're like, "Ooh."

0:21:25.0 Rhiannon: Yeah, it's like, "Okay, guys, we're talking about a crazy person here."

0:21:29.2 Michael: This harlot.

[chuckle]

0:21:30.7 Rhiannon: Yeah. Right, right.

0:21:32.5 Peter: Blackmun is an incredibly good writer, and one of the things he lists as something that might determine or impact your outlook on abortion is "your exposure to the raw edges of human existence," which I thought was very poetic. [chuckle]

0:21:48.6 Rhiannon: It's good quality writing, but it's also a little dramatic, right?

0:21:51.5 Peter: It is.

[chuckle]

0:21:52.6 Peter: He loves the drama. He loves the drama.

0:21:55.2 Michael: I do too, I live for the drama.

0:21:57.4 Peter: Yeah. An interesting point that Blackmun makes is that if you survey the legal history, there wasn't really a consistent stance that you could find on abortion, no matter how far back you go. So there were ancient societies like the Greeks and the Romans, which practiced it very freely, and there were some that punished it a little more aggressively, like the Persians at certain times. Sorry about that, by the way.

[laughter]

0:22:21.2 Peter: Apologies from my people to yours. There's no indication that it was consistently treated as a crime in English common law. Laws in the US concerning abortion, like Rhi mentioned, started to spring up in the 1800s, and laws criminalizing it only show up later in that century. And most of those distinguish between early and late-term abortions, albeit in medically crude terms. It was only over the course of the first half of the 20th century that you start to see these blanket or almost blanket bans on abortion become popular in the United States. And this is an important point, because it cuts against the core of the broader conservative argument here. Conservatives' reaction to this decision, and the "liberal" Supreme Court of the mid-century in general, is rooted in the idea that the Court was comprised of activist judges who are imposing their sort of ivory tower sensibilities on the rest of us, thereby sort of disturbing this natural order, disturbing these long-standing practices of the common folk.

0:23:25.9 Peter: And this is a theme you see in a lot of conservative jurisprudence, something that someone like Scalia is actually sort of famous for. But here is Blackmun pointing out that anti-abortion laws as they exist in the United States at this time are actually quite novel and new. And that's important because a lot of the criticism of this decision by constitutional originalists is predicated, at least in part, on the idea that a right to abortion would be sort of unthinkable to the Founding Fathers' work.

0:23:52.3 Peter: But what Blackmun's pointing out is actually the right to abortion more or less existed at the time of the Founding. And this is sort of something I was just talking about on our guest episode on the Know Your Enemy podcast. This is invented tradition, it's a fictionalized version of history designed by conservatives to sort of support their own ends.

0:24:10.9 Rhiannon: Yes, exactly. And so because the right to privacy is a fundamental right under the Constitution, the Supreme Court applies strict scrutiny to laws that restrict abortions.

0:24:22.4 Michael: Right. Since they're saying this is like a fundamental right, they're imposing the highest form of scrutiny, like the most exacting form of judicial review, under which most laws don't survive. Like if you subject a law to strict scrutiny, it's probably going to get struck down. Which in turn would make it very difficult for states to continue outlawing or otherwise heavily regulating abortions.

0:24:49.9 Rhiannon: Right. So the Roe v. Wade ruling establishes what's referred to as the trimester framework. The Court is reasoning that the state does have some important interests in restricting abortion access sometimes, and those interests are protecting the health of women and also in protecting potential life. On the other hand, Blackmun says we have this individual right to privacy and women have bodily autonomy, so we have to balance those interests against each other to decide when abortion restrictions are permissible, and the balance of those interests shifts as the pregnancy goes on.

0:25:25.6 Rhiannon: So in the first trimester, Blackmun reasons that the state's interest in protecting potential life is pretty low because a fetus is not viable in the first trimester of pregnancy. And the state interest in protecting a woman's health at that time is basically non-existent because abortions are extremely safe procedures early in pregnancy, even at this time in the early 1970s. Likewise in the second trimester, like the state's interest in protecting the health of the woman might grow, but Blackmun reasons that because a fetus hasn't reached the point of viability, a woman's individual rights still outweigh the state interests. But in the third trimester, this balance shifts and the state has a heightened interest in protecting women's health, and they have a heightened interest in potential life, because in the third trimester, a fetus is viable.

0:26:18.5 Peter: Most fetuses in the third trimester can perform beginners' Sudoku with some moderate success. That's my understanding.

0:26:26.5 Rhiannon: In the end, Blackmun concludes that states cannot prohibit abortion in the first or second trimesters of pregnancy, but they can in the third trimester.

0:26:36.0 Peter: Yeah, so in short, Roe creates a balancing act between the rights of the individual and the power of the state, and that balance shifts more toward the state with each trimester, especially in the third trimester. And Blackmun definitely did his research reasonably well here, but there's still something weird about this, like male lawyer showing up in the most important women's rights decision in the country's history, like, "Okay, so I looked into pregnancy and I got some ideas. You guys heard about trimesters?"

[laughter]

0:27:11.4 Rhiannon: It's nine months. You could divide it into three parts.

0:27:16.5 Peter: Obviously, trimesters are a useful guide post, right?

0:27:20.7 Rhiannon: Sure.

0:27:20.8 Peter: They're used by doctors, it's not totally unscientific, but it is imprecise. It's not like strictly medical. Obviously, pregnancy is more of a spectrum than it is three distinct phases. And so, to try to map these rigid legal standards onto the trimester framework is a little bit imprecise, which is not necessarily a nightmare. Some of that stuff is sort of necessary in the law, like going 56 isn't always more dangerous than going 55, but one of them is breaking the law. There sort of has to be a line, and maybe this is sort of the way to do it, but it does feel a little skeezy, I have to say, and it does feel a little skeezy.

0:28:00.3 Rhiannon: Yeah, I think that's right. And I think that comes from... Like we said, this is the early 1970s. There are no women on the Supreme Court. You can look back into the oral arguments at the Supreme Court and see the tone with which Sarah Weddington, who gave the oral argument on behalf of Jane Roe, the tone with which the old white male Justices are asking her questions, and you get the vibe, right?

0:28:24.1 Peter: Yeah, to give you maybe a sense of the social milieu at the time, the lawyer representing Texas starts off his argument by saying, "It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word," which is then met with several seconds of continuous silence from the Justices.

0:28:47.9 Rhiannon: Right.

0:28:48.3 Peter: While the guy shuffles with his papers, and is like, "Okay, well."

0:28:53.1 Rhiannon: Yeah, tough crowd tonight, tough crowd. And also, I think this is a result of the sort of multiple drafts that went into the final Roe v. Wade majority opinion. So Blackmun circulated among the Justices multiple drafts of this opinion, and he took feedback from the other Justices. Blackmun first wrote the opinion, and he put the cut-off after the first trimester, and he admits that it is arbitrary. He uses the word arbitrary. And one of the Justices, I don't remember who now, replies that he thinks it should be between the second and third trimester, and so that's why that decision is made. And so, yeah, it's just not a ton of expertise about how pregnancy works and there's no real incorporation of what do women think about this.

0:29:42.0 Michael: These guys are all old enough that I don't think it's guaranteed they even got sex-ed in like high school or whatever.

0:29:48.1 Peter: Right, right.

0:29:48.4 Rhiannon: Right, oh, no, definitely not, no, no, no. Their only experience with this is with their wives.

0:29:52.1 Peter: Blackmun was born in 1908. So imagine what that sex-ed was like in 1921 or whatever.

[laughter]

0:30:02.9 Michael: So this case was 7-2. William H. Rehnquist wrote a dissent and I read it a few times, not to brag, it's only two pages long or whatever.

0:30:14.2 Rhiannon: Okay, nerd.

0:30:14.9 Peter: It didn't really take that much, yeah. And the more I read it, the more I appreciate it as an effective piece of propaganda, I think. It starts with what feels like some very nitpicky stuff about how it's not clear whether Jane Roe was in her first trimester and therefore whether or not she even had standing to bring this sort of challenge and demand this sort of remedy, which I don't know, we could debate that. But I think the important thing it does is sort of set up and frame this idea that the Court is like reaching way outside the record, way outside its normal limits, and framing the entire decision as very activist.

0:30:58.7 Michael: And that's what he does. He doesn't write like a persuasive legal argument, I don't think. But he frames things very well to make this feel very extreme. Like the same facts that Blackmun talks about, when laws were first enacted, he takes a completely different meaning from, 'cause he says the first laws regulating abortion are over 100 years old and whatever. He doesn't say what those laws do. He doesn't mention whether or not they allow abortions in the first trimester. He elides all that stuff, but instead characterizes it as evidence of this rich tradition of controlling women's bodies.

0:31:37.0 Michael: It's effective and I feel like becomes sort of a template for legal arguments about this going forward. It's very concise and to the point and is sort of like a mission statement for the religious right for the next few decades.

0:31:51.5 Peter: So to refresh a little bit, the Fourteenth Amendment, substantive due process clause, protects our liberty, and the courts have held that your right to privacy is one of those fundamental liberties that the Constitution protects. And conservatives like Rehnquist are pushing against this, basically saying it's too much of a stretch. Whereas like liberals have said, look, there are these sort of flexible areas within the Constitution that we should interpret a little more broadly to protect citizens' rights.

0:32:22.4 Peter: And that's where liberals and conservatives are butting heads, just on how flexibly this stuff should be interpreted. What sort of liberties is the Constitution protecting? And it's important, I think, to situate it in the broader conservative academic reaction. So in 1971, Robert Bork, later famous for being denied a spot on the Supreme Court in the '80s, but at this point, still just sort of a leading light of conservative legal intellectuals, publishes an article called Neutral Principles and Some First Amendment Problems, where he lays out the originalist viewpoint, and it's sort of the seminal originalist work.

0:33:02.1 Peter: And one of the things he focuses on is the Fourteenth Amendment, which he thinks is out of control. And so, the conservatives here are making a very simple argument. They're saying that the Court, finding a right to privacy and then extending that right to protect abortion, is simply too much of a stretch and doesn't have much of a basis in the Constitution. And this is when you see conservative lawyers and academics really rally around originalism and the idea of judicial restraint, and conservative politicians are complaining about activist judges. The timing here is important because I think a lot of people see the merit in the conservative legal argument generally. It does take a small leap to say that the Fourteenth Amendment protects a right to privacy, and another leap to say that that right covers abortion. I personally don't find the conservative argument very convincing, I think the flexibility of the Fourteenth Amendment is a feature and not a bug.

0:33:57.8 Michael: Absolutely.

0:33:58.7 Peter: That the conservatives' criticism is really just reflective of their frustration with that flexibility rather than any sincere concern that it's improper or inaccurate. But no matter what you think of their argument in and of itself, I want to highlight what I would consider to be some suspect timing here. Conservative skepticism about judicial overreach, in particular concerning the Fourteenth Amendment, really hits a fever pitch in the early 1970s. This is immediately after the Warren Court relied on the Fourteenth Amendment to broaden voting rights and civil rights and hear the right to privacy, and conservatives often couch their concern as almost purely academic. They were claiming to be worried about the improper interpretation of the Constitution.

0:34:42.5 Rhiannon: Right. Yeah.

0:34:42.7 Peter: Which is interesting, because like I mentioned earlier in this episode, the Supreme Court used that same vague substantive due process clause of the Fourteenth Amendment to find a right to contractual liberty, meaning the right to enter into contracts freely, in 1905. That ruling just so happened to help big exploitative businesses, and over half a century went by without really as much as a whisper from conservative academics and lawyers on the issue, and yet when the same clause is interpreted to protect the rights of minorities or to protect sexual liberties, conservatives suddenly had a robust academic objection ready.

0:35:22.0 Peter: Which is to say that the intellectual reasoning proffered by the conservatives is outcome-driven. They are not principled academics who believe in the neutral application of the law, they knew they wanted to oppose the expansion of rights for women and for the marginalized more broadly, and they worked backwards from that premise to build an intellectual framework that would do that. This disingenuousness is the foundation of the conservative legal movement.

0:35:49.2 Rhiannon: Exactly.

0:35:49.6 Peter: It is its beating heart.

0:35:50.8 Rhiannon: Totally.

0:35:51.3 Michael: Yes.

0:35:51.9 Peter: One interesting aspect of the conservatives' argument about Roe is that a lot of liberals have actually bought into it. It has become a common refrain in liberal legal circles that while the outcome in Roe was good, it would have been a stronger case if it was built on the equal protection clause, instead of the idea of a right to privacy.

0:36:10.6 Rhiannon: Right. The equal protection argument is based on the idea that restrictions on abortion access are centered on or come out of the state forcing women to accept what the state views as the "natural status" of women. It's the state imposing a normative role on women as natural and eventual mothers. So the equal protection clause protects equality and has been interpreted to mean that freedom from state-imposed roles is fundamental to equal citizenship. It's fundamental to sort of closely scrutinize legal burdens that fall unequally on members of different groups.

0:36:53.4 Rhiannon: For example, Ruth Bader Ginsburg herself, she famously stated that Roe v. Wade should have been decided as an equal protection case rather than a due process case, and she wrote once she was on the Court in a different case, "legal challenges to undo restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy, rather they center on a woman's autonomy to determine her life's course and thus to enjoy equal citizenship stature".

0:37:20.8 Michael: Also in law school, you'll find Griswold, the progenitor to Roe, disparaged. Its reasoning is laughed at because it uses words like the penumbras of the Amendment to the Constitution, and people rolled their eyes. And liberal professors and liberal law students just are like, well, they know what they're talking about, so they just believe it. I guess that is a badly reasoned decision.

0:37:44.1 Peter: Right, yeah. I think there's some interesting academic discussion to be had about whether it would have been more easily defensible to use an equal protection argument, although I'm not particularly sold on that. But there's a misconception that a more intellectually defensible opinion would have been less susceptible to attack by conservatives. That to me, fundamentally misunderstands the reactionary project.

0:38:07.9 Peter: I highlighted the disingenuousness of the conservative academic position in part because it speaks to a broader truth. No matter how you couch the argument for a right to an abortion, the conservative reaction, the conservative opposition was always coming. It would not matter if you made it about a different clause of the Constitution, they are driven by outcomes. Trying to brainstorm a snappy little argument isn't going to get you anywhere, you'll be fighting on a battlefield that doesn't exist because they're not trying to beat you in a real argument.

0:38:38.3 Peter: Conservatives don't hate Roe because they are truly concerned with the excesses of a particular mode of constitutional interpretation, they hate Roe because they don't support the right to an abortion. It's as simple as that.

0:38:49.8 Rhiannon: Right, exactly.

0:38:50.8 Michael: That's right. We're talking a lot about the Fourteenth Amendment, and rightfully so, but I also want to talk about the Ninth Amendment, because I think it's a good illustration of what Peter's saying about the bad faith of the conservatives.

0:39:06.5 Rhiannon: Yes.

0:39:07.0 Michael: Because it's a great example of no matter how you decided this case, they would have come up with some way, no matter how strained, to take issue with it.

0:39:19.4 Rhiannon: Right, exactly.

0:39:20.3 Michael: And find that you were wrong.

0:39:21.7 Rhiannon: Yes.

0:39:22.4 Michael: What the Ninth Amendment says is that the Bill of Rights is not exhaustive, that the people hold other rights. Just because the right isn't listed there, doesn't mean that it doesn't exist and that the people don't have it, and that the government can't infringe those rights. There's some debate about what that means or not, but it made an appearance in these cases. In Griswold v. Connecticut, the progenitor to Roe v. Wade, the case that said you have a right to contraception, there was a concurrence that said that this should be decided on Ninth Amendment rather than Fourteenth Amendment grounds.

0:39:58.2 Michael: Now, these aren't really in conflict. People who like the Fourteenth Amendment arguments also like the Ninth Amendment arguments and vice versa. Similarly, the District Court in Roe v. Wade actually decided it on Ninth Amendment grounds, in favor of Jane Roe. And the majority opinion in Roe v. Wade says, look, whether you think the right to privacy comes from the Fourteenth Amendment or whether you think it comes from the Ninth Amendment, it doesn't really matter, the point is that it exists.

0:40:28.0 Rhiannon: There's a broad agreement here that if the Bill of Rights is not exhaustive, what might those unlisted rights... What might they look like? Well, a right to privacy makes perfect sense, because it seems foundational to all the other rights.

0:40:42.3 Peter: Yeah.

0:40:42.5 Rhiannon: Exactly, and that's exactly what conservatives have a problem with and what... Just to go back to what Peter is saying about their bad faith. So you know, I think a really good example is Robert Bork in his confirmation hearings. He's asked about what he thinks about the Ninth Amendment, and he calls it an ink blot on the Constitution. Which like this is the preeminent conservative legal thinker who is ostensibly all about like the words and the Constitution mean things, and we should be really thinking about the originalist interpretation of the Constitution. And he's literally saying like, "Nah, I don't pay attention to that Amendment, that Amendment sucks and I don't like it."

0:41:22.0 Michael: Right. And somebody asked him how you should interpret it, he's like, "The same way you would an ink blot, you don't."

0:41:26.4 Rhiannon: Right, just skip over that, yeah.

0:41:27.9 Michael: It's not there. We're not exaggerating when we say they want to write it out of the Constitution, like literally. It's like the guy in Westwood, it doesn't look like anything to me.

0:41:39.4 Rhiannon: Right, yeah.

[laughter]

0:41:39.4 Michael: It's just been edited out of their code entirely. And it goes back to what Peter was saying about their frustration with the Fourteenth Amendment, it's their frustration that, "Look, this opens the door to anything."

0:41:49.7 Rhiannon: Right, it's their frustration with the flexibility of it and the potential for expansion of rights.

0:41:53.9 Michael: Exactly. It's fuzzy and it's gray, and it's going to involve a lot of judicial discretion that will sort of, by definition, reflect changing social values and that shit they hate.

0:42:04.9 Peter: Absolutely. I think there's like if you're a law student or a lawyer, you probably heard in law school that Roe v. Wade was a weak decision, right?

0:42:13.0 Rhiannon: Right, yes.

0:42:13.4 Peter: And the reason you heard that was almost certainly because conservatives have won this meta-argument about the role of judges with respect to the Fourteenth Amendment. Roe v. Wade wasn't incorrectly decided. Roe v. Wade was decided based on a very reasonable understanding of the Fourteenth Amendment, a very reasonable understanding. And the conservative development of this framework in which judges are like said to have no discretion with respect to the Fourteenth Amendment, was in reaction to Roe v. Wade and Griswold v. Connecticut.

0:42:46.9 Rhiannon: Right, exactly.

0:42:47.4 Peter: They don't actually believe that judges shouldn't have discretion, they give judges all sorts of enormous amounts of discretion when it comes to aiding the conservative causes. It's to me, a tremendous feat of the conservative legal movement that they have been able to successfully paint Roe as being incorrect to the degree where liberal students across the country probably give that at least some credence, if not agree with it outright.

0:43:11.8 Rhiannon: Right. Like in law school, when you're in con law and talking about Roe v. Wade, or if you're in Fourteenth Amendment or whatever, a very common, like a structure to class discussion that day will be like a debate, like which Amendment would have been better to justify the right to have an abortion? Should it have been the Fourteenth Amendment? Well, there are some good arguments for why it should have been the Ninth. So the extent to which academics across the political spectrum have bought into what is conservative narrative and conservative politicization of the decision as weak and not grounded in the Constitution.

0:43:47.1 Michael: Yeah, my con law exam, one question was, if you've got to just write a new Amendment and it would be passed, what would it be? And I put a right to privacy and explained the language in a way that would try to be exhaustive. And my reasoning was like, I was like, "Look, I think Roe v. Wade and Griswold v. Connecticut are fine, but I just want to put all their shit to rest. Shut them up."

0:44:10.1 Rhiannon: It's in the Constitution, shut the fuck up.

[laughter]

0:44:15.9 Peter: Look, I think to wrap this up, like our position on Roe is that it's a well-reasoned case, it is taking something that everyone at the time agreed exists, which is a Fourteenth Amendment protection of liberty, applying it to a right to privacy, which is a very small step away from these sort of rights that the Constitution already provides and makes perfect sense in the context of the broader Constitution, and then saying, wouldn't a decision to terminate your pregnancy, which might be one of the most personal decisions you could even conceptualize, fall under a right to privacy? Which in my mind is incontrovertibly true.

0:44:53.4 Rhiannon: Right. Slam dunk.

0:44:55.3 Peter: It is. It is. And if you believe, and you should, if you're on the left, and frankly, you should believe it across the political spectrum, if you believe that the Constitution provides for any amount of flexibility, then you have to concede that this is a reasonable decision. I'm sorry, you do.

0:45:10.6 Rhiannon: Right, right.

0:45:11.3 Peter: And the consensus among academics, among law school professors, that it's incorrect is intellectual cowardice, they've been bowed by the conservative legal movement for 50 years, and it's pathetic. It is.

0:45:27.0 Rhiannon: Right, right. And what just occurred to me is, I'm wondering how much the legal movement to expand rights for queer people, gay marriage, trans rights, all of it, how much that was likely delayed or stunted because liberals bought into this idea that Roe v. Wade was not a strong opinion. It can't be cited as this really strong precedent because all conservatives do is talk shit about it. But if we had centered these really important personal rights in the Fourteenth Amendment due process clause, there's nothing wrong with expanding that even further for other marginalized groups in the future. But that's not now how those legal arguments are framed.

0:46:07.0 Michael: And even though those cases, the gay marriage cases, for example, were decided on equal protection grounds rather than due process grounds, they're infused with the language of the old right to privacy cases. Their talk about human dignity and liberty and autonomy and all the stuff the Warren Court was talking about in the '60s and in Roe v Wade in the '70s.

0:46:29.6 Peter: We could have built on those principles rather than being on our heels for 45 years.

0:46:34.4 Rhiannon: Right, right.

0:46:34.6 Michael: Yeah.

0:46:35.8 Peter: So we should probably move on because I'm sure we could all just complain about law schools and law professors for hours on end.

0:46:40.0 Michael: Forever.

0:46:42.8 Rhiannon: I think we got that part.

0:46:43.9 Michael: I think you got that covered.

0:46:46.3 Peter: Let's talk a little bit about the institutionalization of conservative reaction. At this point in history in the early 1970s, not only do organizations like the Federalist Society not exist, but there isn't really a jurisprudential framework that conservatives are consistently adhering to. Originalism was just starting to gain the attention of right-wing academics, and Roe really helps kick start the project of putting that framework together, because now they have a real issue to rally around, a material issue to rally around. And so the conservative legal movement starts to really build steam, and for many of its members and many of the people funding it, priority number one is overturning Roe v. Wade.

0:47:29.5 Michael: That's right. And it's interesting because the religious right is relatively new at that point. It sort of developed originally in response to the New Deal and this idea of a large godless state. And Eisenhower took office and he was very religious, but in a way that didn't really help the religious right. He said the government had to be godly or whatever, but he didn't even care what faith. Right? It was very ecumenical. There's a place for Jews, there's a place for Catholics, there's a place for Protestants whatever. And as a result, Democrats and Republicans alike claimed the mantle of religiosity for the next 10, 15 years. They put one nation under God on the coin, and that almost nobody voted against that. That was bipartisan.

0:48:17.5 Michael: The cracks really started to show when the religious right tried to get prayer in school and stuff, and they'd lost on that. They couldn't get the majorities they wanted, but after the Civil Rights Movement, the Democrats' New Deal coalition, that was like a very working class, cross-racial coalition, started to fracture, and you have this big moment of political change where the demographic make-ups of the coalitions are shifting, and Roe v. Wade becomes this rallying point, this great cause for the conservative religious right to rally especially evangelicals to their cause and to cement them in the Republican coalition. It was a big organizing point for the Republican Party.

0:49:03.5 Peter: And something that like Richard Nixon identified and spoke about in the Nixon tapes where, by the way, he said that he understood that there might be a limited need to an abortion, and the example he gave was if quote a black and a white had a baby.

0:49:22.8 Rhiannon: Jesus.

0:49:25.3 Peter: Yeah.

0:49:25.5 Rhiannon: That's in the Nixon tapes for real?

0:49:26.7 Peter: That's in the Nixon tapes.

0:49:27.8 Rhiannon: God damn.

0:49:28.6 Peter: And then the person he was with said, "Or rape." And he was like, "Oh, yeah, or rape."

0:49:33.5 Rhiannon: Fuck that guy. Everything I learn about the man. What a fucking monster.

0:49:37.1 Peter: Those Nixon tapes are a parade of horrors. But he was sort of instrumental and one of the figures, at least, who was instrumental for fusing the broader white reaction with the religious right. And his understanding of the importance of the right was integral to positioning it in a place where it would be able to grow to become what it is now, which is the center, the very center of the Republican Party.

0:50:02.9 Rhiannon: Yeah, yeah, and what we're trying to say, I think, is that Roe v. Wade as a Supreme Court decision that comes down in the early 1970s, becomes this central cause, like Michael said, around which the right and conservatives in this country sort of coalesce and build new political coalitions. It's a jumping-off point for the conservative movement and the conservative legal movement in a lot of respects. It's new conservative coalitions and institutions building around these bridges between politicians, academics, religious leaders, activists, and they have now this big beautiful opinion from the Supreme Court around which to rally everybody and sort of have this big shared cause.

0:50:47.3 Michael: Right, and you see it in the '80s too, as we move past Roe v. Wade, you would think it would start to be in the rear view mirror. Instead what you have is Ronald Reagan's Attorney General Ed Meese saying, look, we need to come out against this, we need to be making statements in court criticizing this and asking the court to overturn it. You have Reagan talking at the March For Life via telephone, but still saying, we need to end this national tragedy.

0:51:18.0 Peter: Although he thought he was just on the phone with a friend.

[laughter]

0:51:22.1 Rhiannon: Nancy, what am I supposed to say?

0:51:28.8 Michael: She gave him a jellybean every time he got a line right.

0:51:33.9 Rhiannon: Yeah, at the March For Life in 1987, which is the one that Ronald Reagan spoke at, Jesse Helms, then a senator from North Carolina, he attended and spoke in person, calling abortion quote an "American holocaust." Just to emphasize these coalitions that are being built at the time, and the religious right and politicians being hand-in-hand in opposition to Roe.

0:51:58.7 Peter: Yeah, you have over the course of the '70s and '80s, these institutional and cultural forces building momentum on the right and the Republican Party and the conservative legal movement all embracing the pro-life position. You're seeing legislation, the Hyde Amendment bans the use of federal funds to subsidize abortion. Reagan makes it part of his platform in 1980, that was the first time that a Republican had the pro-life position in their platform. Judges who are more ideologically conservative start to gain prominence during that same era, and conservatives are securing more seats on the Supreme Court.

0:52:37.1 Peter: In 1989, there's a case called Webster v. Reproductive Health Services, where the Court upheld a law that, among other things, forbade the use of public facilities for abortions unless they were necessary to save a woman's life and required physicians to perform tests to determine the viability of fetuses after 20 weeks. In 1991, there's a case called Rust v. Sullivan, where the Court upheld a ban of abortion counseling and referral by family planning programs funded under the Federal Public Health Service Act. So with the disposition of the Court shifting away from protecting abortion rights, conservatives are sort of sensing an opportunity. They've been at this point trying for nearly 20 years to overturn Roe v. Wade, and in 1992, they finally get their chance.

0:53:23.0 Rhiannon: Bam bam bam...

0:53:26.0 Peter: Next time, on 5-4...

0:53:26.9 Michael: We'll be talking about that in part two, baby.

0:53:32.8 Rhiannon: Come back to part two.

0:53:38.7 Peter: So in part two, we will talk about Planned Parenthood v. Casey, how it plays out, and how the subsequent nearly 30 years have involved the slow dismantling of abortion rights across the country by the Supreme Court.

0:53:55.8 Michael: Happy New Year.

0:53:58.6 Peter: Follow us on Twitter @fivefourpod. Buy our merch. Tell your friends.

0:54:05.3 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.