Right now the court has before it
probably be more than one case,
but in this instance a particular
case that really goes to the scope
of our rights under the Constitution,
and in particular it's the right to
decide whether or not to end a pregnancy.
So in 1973, the Supreme Court recognized
that that right was protected by
the Constitution in 1992 when a
case called Casey versus Planned
Parenthood versus Planned Parenthood
of Southeastern Pennsylvania,
the Supreme Court reconsidered again,
and as a result we have sort of
a constitutional test or standard
for determining to what extent,
state or state legislatures can
restrict access to abortion.
And so the standard has been
since the 20th century.
The idea that after viability in
a pregnancy a state legislature
can choose to ban abortion,
with some exceptions available to
protect the health and safety of
the mother or the pregnant woman.
And the test that you use for
regulations that apply before viability
is one that the Court articulated
in 1992 in the Casey decision.
So they used the terms undue
burden and substantial obstacle,
meaning that if a state law imposes an
undue burden on access to abortion,
then it's unconstitutional.
And if it falls below that level,
then it's constitutional.
So that's why we do have state laws
that restrict access to abortion.
But or that regulate the way
that abortion can be offered and
services that can be provided.
But we still have a guarantee that
in every state the legislatures
can't foreclose abortion altogether.
But now that's all on the line.
So in the late fall,
the Supreme Court heard arguments
in a case called Dobbs.
Versus Jackson Women's Health Organization,
and they're considering a state law
passed by the Mississippi legislature
that would ban abortion from 15 weeks,
15 weeks as well before before
the point of viability.
And so that raises the question
of whether or not there is a
constitutional right to abortion,
or whether state legislatures would have
the power to override access to abortion.
And it looks like they might do that.
So kind of scaling back a little bit
so we know what's going on right now,
and let's clear up Roe V
Wade in terms of what is it?
And I'm going like hyper focused right
here because I know it as I've heard
it referred to as the law of the land,
but it's a court ruling.
So it's not a law, it is a law.
If it is a law.
Yeah, in the United States,
our laws are made by different actors.
If you will, government actors if you will.
So certainly when we think of laws we
think of statutes as an act that either
by Congress or by state legislatures.
But courts also have the power to make law.
So they have the authority to
interpret statutes in some cases,
but they also have the law to create
what we call common law in the
constitutional cases like Roe versus
Wade or Casey versus Planned Parenthood.
What they're doing is in their their
thinking about challenges to state laws,
so they're considering the balance
between what the Constitution says
and what the Constitution protects.
On the one hand.
And then what's the scope
of legislative authority?
On the other hand?
And let's kind of launch off from
there misconceptions surrounding Roe.
V. Wade, you know you're a teacher.
You're a professor at UC Davis.
Certainly probably had your fair
share of questions about it.
Just from your experience.
Well, what are some of the more
common misconceptions people
have about Roe V. Wade?
I think one of the basic questions
is what happens if Roe versus Wade
is struck down across the nation,
so there won't be one
national outcome under this.
What the Supreme Court would say and what
it says in the draft opinion that was leaked.
Is that? Is that a majority of
Supreme Court might determine that
there is no constitutional right.
To decide whether or not to end
the pregnancy and that means it
leaves the issue to the state
legislatures and the state governors.
So that means in some states the
state legislatures could decide
to enact bans or very severe
restrictions on access to abortion.
But in other states they might step
forward in several states have
already done so to provide strong
protections for the right to decide.
So, California being one of those states.
So in some states,
access to abortion already exists
and will continue to exist.
It may even expand,
and in other states that they shrink.
You know there was this.
If you listen to a lot of the
pundits go on YouTube anywhere.
When they talk about this,
a fair amount of them will talk
about the judicial branch trying
to legislate from the bench,
and that the the that portion
of the government is supposed
to say this is constitutional,
not constitutional.
When you bring up Roe V Wade,
people talk about your legislating from
the bench you're not supposed to do that.
So for context, do you know what
exactly they're talking about?
And is Roe V Wade an example of that?
I'm not I. I'm not sure that
it is an example of that so.
That there are sort of two different
angles on that particular point,
so one is it comes from.
An interpret a way of interpreting the
Constitution that's often called textualism,
and never another version
of that is originalism.
And you see the the sort of
conservative majority in Alito's
draft using that particular approach.
So it's a way of reading the Constitution,
and in particular this interpreting
the scope of our individual rights very
narrowly by saying that it we need to
see language in express words in the
Constitution in order to recognize it.
As a right.
And so repeatedly in Alito's draft opinion,
it says that the right to decide is not
anywhere expressed in the Constitution.
When the court recognized the
right to decide,
it did so as part of a string of cases
in which the court sort of developed
this area of what's called substantive
due process under the right of privacy.
Alito's other point is that nowhere
in the Constitution does the court
set out a right of privacy as
it was defined by the court.
In cases like that recognized,
for example,
the right to marry or the right to decide,
or the right to access contraception.
And so. By interpreting the
Constitution in a way which recognizes.
Those types of personal decisions
as constitutional rights.
Some people would say what
they're doing is legislative.
They're making things up,
and that's the role for legislators,
not for the courts.
So that's one way of thinking about it.
The other point that Alito makes in the
draft opinion is that Roe looks like a
piece of legislation because it's it's a.
He sets out of the the court 1973,
set out a framework for that.
Legislators could could use to determine
which laws would be permissible
constitutionally permissible,
and which types of abortion regulations
would not be so that's known as
the trimester framework that was
rejected by the court in 1992.
And Casey decision.
But repeatedly.
Alito says,
it's so detailed that that's
like legislation.
That's not what we should be doing.
Following up on these talking points
that I hear a lot, I heard this idea of
settled law I I don't know if it's from
Elizabeth Warren or from someone else,
but I heard an idea of settled law.
And when you talk about Roe V
Wade and the abortion debate.
My goodness, it's one of the most heated
and passionate arguments of our lifetime.
How on Earth could any anyone
say settled about this debate?
So how, how exactly do those things coexist?
Well, I think there's a distinction.
An important distinction to think about,
but on the one hand,
you can have a settled law.
And the other, on the other hand,
you can have a very heated and persistent.
Political and moral debate.
About how that law is used. So.
I think it's important to draw
that line and not conflate the two.
We have many such laws that are
contested in political discourse.
That doesn't necessarily
mean that they should be.
Taken away.
You mentioned it earlier and
this was the idea that it.
If it does get struck down there,
there are many states who may.
Do what they will with
the concept of abortion,
which you can, which you can't do.
And maybe it's more of the
political end of things, but.
I guess there's a lot of people
who would say, well, great.
It's kind of supposed to be that way if
if we have so many people who disagree
and won't budge from either side,
does it make sense to have
something so overarching?
Why not just leave it to the
individual States and you know,
let our democracy run its course?
Well, I think in a sense,
that's what the draft opinion indicates.
If it's if it's so contested,
then this is something that should
be decided by what Alito refers
to as the democratic process.
So it's something that our elected
officials should have the responsibility
of addressing on a state by state basis.
And certainly we do that with
many other types of laws.
Most of the laws that state legislatures
have the authority to do that with
their basic health and safety laws.
I think the.
Response to that point is
that this one's different.
It's secures the ability to have
the say so over your own body.
And without state interference
without government interference
over that and it also does so in
a way that is highly gendered.
Are there civil ways for someone who is?
Or abortion rights.
And someone who you know
wants to protect the unborn.
Is there a way to for them
to find a middle ground to?
Or even just have a pleasant
conversation about the topic
without it being so heated.
Can we talk about this civilly?
I think many people are doing that.
It's just. You know we the.
I mean, you started the conversation
by pointing out that the term sort
of pro choice and pro life or
anti abortion are the terms that
are most often used to describe.
This debate, but those are two
ends of a much richer discussion,
and I think all the polls indicate
that it's a substantial majority
of people in the United States
support some access to abortion.
So they might disagree over the
details and the scope of the
ability to exercise that decision,
but the substantial majority are
sort of meeting in the middle
already on that point.
And I'd be remiss if I didn't toss
it over to you. Any last comments?
Any any kind of burn in the
statements you got on your mind that
you just wanted to put out there?
I think it's very important to
remember about to remember,
sort of keep in mind.
Who will be impacted primarily by these laws?
It's the people who aren't
who lack resources to travel.
And who don't already have
full access to to healthcare.
So it's the same people who've been
hit the hardest by the COVID pandemic,
and now they're adding something else.
On top of that.