August 16, 2022

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The Legal System

What Comes After Roe? – The Atlantic

18 min read
What Comes After Roe? - The Atlantic

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The Atlantic’s executive editor, Adrienne LaFrance, discusses a post-Roe America with two contributing writers. The legal historian Mary Ziegler and the constitutional-law scholar David French answer questions about what happens now that Roe v. Wade has been overturned. How will abortion bans be enforced? What will come of the legal and legislative battle moving to the states? And what other rights could the Supreme Court revoke?

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The following conversation has been edited and condensed for clarity:

Adrienne LaFrance: Mary, I want to talk about something you wrote in a recent article for us. You wrote that “if this decision signals anything bigger than its direct consequences, it is this: No one should get used to their rights.” Particularly in Justice [Clarence] Thomas’s concurrence, there’s a hint at where this could go. But I’m curious to hear what you were thinking about when you wrote that.

Mary Ziegler: Well, I think there were two sets of things I was thinking about. One involved methodology: The Court lays out a method for defining our constitutional rights based on what the Court describes as history and tradition. And that methodology, as Justice Thomas elucidates pretty nicely, could mean that a lot of rights we thought we had, we don’t really have.

Another set of things that was occurring were more institutional concerns. This Court has been, I think, more interested in undoing precedents it thinks were egregiously wrong, to use the Court’s words, and less worried about the kind of institutional commitments that come with adhering to old decisions or past precedent than other reports that I’m familiar with. You can go back to the 1960s-era liberal Warren Court where maybe that wasn’t true, but I think for all of those reasons, this is a Court that seems to be committed to its interpretive approach to the Constitution, and not really worried about institutionalist concerns about perceived judicial legitimacy or precedent, and committed to an approach to implied constitutional rights that if you were being logically consistent, would lead you to call into question a variety of constitutional rights.

So if this is how the Court is doing business, both from an interpretive standpoint and from an institutional standpoint, we just don’t know what’s going to happen next. I’m not here to tell you I know they’re going to take away this right or that right or any rights, but I think it creates a climate of pretty extreme uncertainty. If you had asked me—and I imagine probably if you’d asked David two years ago—Do you think the Supreme Court will overturn Roe v. Wade in two years in a decision like this? I can tell you a lot of constitutional commentators would have said: “No way.” We’re living in a time where the Overton window is rapidly changing. And there are signs in the opinion itself that that’s true. And so, what I was thinking when I wrote that was just that anyone who can guarantee that they know what will happen next when it comes to this Court, I think is mistaken.

LaFrance: So then, David, if someone had asked you two years ago if this would happen, what do you think you would have said?

David French: I would have said no. And I would have been on pretty good grounds to say no because Justice [Ruth Bader] Ginsburg was still alive. And as we saw from the Justice [John] Roberts concurrence, he didn’t join in fully overturning Roe vs. Wade. And so, at most, there were four justices two years ago. It was the addition of Amy Coney Barrett that completely changed the dynamic. The thing that surprised me—and this is something that I did not see happening—the Court’s ruling in one sense is 6–3, on the narrow ground of upholding the Mississippi law. But it’s more of a 5–4 on the larger ground of: Do you entirely overrule Roe v. Wade? And if I had been predicting this, I would have said that I don’t see a Court overruling Roe v. Wade 5–4. There was a joke that people used to say: “Justice Roberts will be a reliable seventh vote to overturn Roe.” In other words, if Roe is overturned, it’s going to be by a supermajority.

Ziegler: I thought the same.

LaFrance: How much of your surprise, David, comes from what the justices have said or had said in confirmation hearings? I know people have made a lot of this. And then we’ll go back to the other question of logical consistency on the Court.

French: Yeah, no surprise at all based on the confirmation. The language in the confirmation hearings was very lawyerly. A phrase like settled precedent just means that precedent is precedent until it’s not.

LaFrance: By “very lawyerly,” do you mean evasive or ambiguous?

French: Here’s how I would put it: As a lawyer listening, I thought, I see what you’re doing. If I’m a member of the public, I’m thinking something different. I would call it legally precise and publicly misleading. But the thing that surprised me more is that, prior to the overturning of Roe, only one justice of the nine had said clearly in actual Court opinions that we need to overturn Roe. And that was Justice Thomas in June Medical Services v. Russo. He dissented and said we need to call into question Roe/Casey. And so we had one justice on the record as a justice saying Roe/Casey needed to go. The other eight had not. And the other eight, with the exception of Barrett, who wasn’t on the Court yet, had upheld or struck down cases that did not fundamentally challenge Roe. So until Dobbs, it was a lot of speculation.

LaFrance: Mary, I’m curious for your thoughts on the legal ripple effects here. I’ve seen lots of people raise concerns about how enforcement will work, what it’ll look like, questions about state surveillance of mail or period-tracking apps. Cast us out days, weeks, months from now: Where do you see the legal ripple effects as most complicated or compelling to you?

Ziegler: Yeah, I think the real challenge is that the world has obviously changed since the last time abortion was a crime. It was always hard to enforce abortion laws. That difficulty is compounded by the availability of medication abortion [today] and by the commitment of most people in the pro-life movement and most states who have spoken out on the matter not to punish women and pregnant people. Those things are in real tension with one another because of the availability of medication abortion. People can get abortion medication on the internet from Europe.

If the commitment of the state is to punish only the doctor, that’s going to be virtually impossible in that kind of situation. Or, as the pro-life group National Right to Life Committee has championed, [states could adopt] this really sweeping definition of accomplice liability that would cover some things that come pretty close to speech, kind of straddling the line between speech and conduct.

One thing we’ve seen some states signal interest in is trying to regulate out-of-state conduct. South Dakota is having a special session to consider new regulations on abortion saying: If someone from South Dakota goes to Minnesota to get an abortion, South Dakota is going to tell the doctor in Minnesota what information they need to tell that person before they get an abortion. Some states have said: If we ban abortion for our citizens and our citizens traveled to a state where abortion is legal, that’s illegal, too. We’re going to try to reach that doctor in that other state.

We’ve seen states saying they don’t want advertising about abortion, which of course implicates First Amendment concerns. So I think the challenge of enforcement and how much states are going to try to do things like surveillance, regulating interstate conduct, or coming right up to the line between speech and conduct—I think that’s going to potentially be something to watch. And it’s something that could polarize this further, too, because, of course, what the Supreme Court was hoping for in the Dobbs decision was a world in which abortion going back to the states would de-escalate the abortion conflict.

And if this enforcement problem becomes acute enough, it could polarize the conflict even more. States would be trying to tell each other what to do, rather than having some kind of top-down solution that’s imposed on everyone, probably making people angry, but at least diffusing some of these interstate battles that we might see starting.

LaFrance: David, I know you have written in the past that, after this period of shock and rage among progressive America, you thought this decision might actually help de-polarize America. Could you explain that position? I’ve been looking at the map of where abortion will be most clearly banned or is likely to be banned, and it really maps pretty cleanly onto established red-blue lines.

French: I do not dispute in the slightest bit that, in the short to medium term, you’re going to be talking about a lot of polarization, a lot of anger, and as Mary outlined, a lot of confusion, because one thing that we have to realize is a lot of the pro-life laws that are on the books now were passed when no one thought they would go into effect. It was performative legislation in a way. And so there’s now a lot of confusion as to what the law is actually going to be. You’ve got states with competing statutes out there. There’s going to be polarization, compounded by confusion.

Now, if you take a longer view: Is there a hope that you would have something along the lines of a democratic settlement to the issue that makes abortion so much less polarizing in other countries around the world? Europe, for example, has long had more restrictive abortion laws than the United States, but the United States couldn’t vote to move to a European settlement because Roe and Casey prohibited that.

LaFrance: And when you referenced these more restrictive laws, it’s things like an earlier cutoff for when abortion is permissible.

French: Right. France, for example, has a 14-week cutoff except in rare circumstances. And other countries are similar to that. But under Roe and Casey, because a 14-week cutoff was pre-viability, if people wanted that and voted for it, they couldn’t have it. And so the longer-term hope on the polarization point is that a democratic settlement will mean that abortion takes a position that is similar to the lack of prominence it has in Europe.

Now, the thing about the European-style laws is: On the pro-life side, they’re not particularly happy with it, and then lots of folks on the pro-choice side are not particularly happy with it either. But it looks like there’s a big group of Americans in the middle who are roughly there, but don’t drive the conversation about abortion in the way the different wings do.

So because other nations have settled this issue democratically, without the kind of trauma and drama that we have endured over the last 50 years, that’s why I have a longer-term sense of hope. But I completely acknowledge: In the short term, you’re going to have shock and anger and a heck of a lot of confusion. And then I’d add to that a lot of division you’ll start to see on the pro-life movement.

Ziegler: Yeah, I agree with almost all of that. I mean, and I think I even sort of share David’s hope on the polarization point, although I would add that I don’t think we would ever get there through partisan politics, because I think that the gravitation to what the movements are doing is happening in our parties, too. I think probably we’ve seen a little bit of this in Michigan and in Kansas—states that are very different, but going directly to voters—I think we may see a more stable kind of European-style solution coming from voters. I don’t know if we would get that from the Democratic Party or the Republican Party as they’re currently constituted.

LaFrance: And David, when you alluded to the idea that there could be a split among pro-lifers, what sort of fault lines do you see emerging?

French: There’s two fault lines. Fault line No. 1 is this sort of philosophical fault line between what you would call the mainstream pro-life movement—which has always said there should be no punishment of women and that there should be exceptions for life and physical health of the mother—and the “abolitionist” movement, which you’re seeing arise more in the more fundamentalist wings of the religious conservative world. And they would say: No exceptions for life. In some cases, they would say, yes, prosecute women.

The other division is about what to prioritize support for. If you have a state with a heartbeat bill going into force, do you prioritize support for women and babies? Or are you going to prioritize creative ways to ban abortion outside of the state lines, or creative ways to try to prohibit the importation of abortion pills?

What is the emphasis going to be in those pro-life states that already have pro-life laws on the books? Is it going to be the support for women and mothers? And a lot of mainstream pro-life groups are saying we need to do that. Whereas a lot of grassroots politicians who are very much caught up in the performative, punitive culture of a lot of right-wing politics right now are going to really press on the punitive side.

LaFrance: It’s been noteworthy to me to watch basically the entire medical establishment come out against this decision, really focusing on the pregnant person’s well-being. We’ve seen other countries where abortion has been banned and medical interventions that would otherwise be made to save the life of the mother have not been taken, and then someone dies. Certainly, we know that some women will die as a result of not being able to get medical intervention in this case. And so how do you expect that to play out legally?

Ziegler: I think that there already are some state constitutional suits about that. I think there’s a kind of okay claim, even for this Supreme Court, [around] states’ Republican candidates suggesting they would eliminate life-of-the-pregnant-person exceptions. Other states are not doing that, [but instead] narrowing the exceptions so much and heightening penalties so much that a lot of doctors might not want to take the risk of interpreting the emergency exception. Prosecutors might disagree and they could end up in prison for 10 years, 99 years, life in some instances.

And so, obviously, I think there should be political pressure on states not to define emergency exceptions in this way. To define emergency exceptions in ways that actually allow doctors to afford women and pregnant people life-saving care, including in circumstances where they’re not even having abortions, but in cases where they’re seeking abortions as well. There’s a decent constitutional argument that life-of-the-pregnant-person exceptions are correct, even under the Supreme Court’s interpretation, because at the time that states were banning abortion in the 19th century, they almost universally were including exceptions for life of the pregnant person. So states that are choosing to define exceptions so narrowly that people are going to die are acting more harshly than states were even in the 19th century.

There’s federal law that was generally about doctors trying to offload patients, but that could be leveraged to say that there’s an emergency medical exception in federal law broader than the ones in some state laws. So there’s definitely steps that people could take. I think the real challenge is not necessarily that legislators are intending for people to die if they have incomplete miscarriages. I don’t think that’s necessarily true. But there’s a dynamic between this ever ratcheting up penalties way beyond anything we saw in the 19th-century criminal abortion laws, and the narrowing of emergency exceptions asking doctors to say: Okay, here’s a patient who’s presenting with what they say is a life-threatening circumstance. Am I willing to risk my career and liberty on my interpretation of whether this is an emergency or not? And many doctors are just not willing to do that.

I think how punitive the laws have become is really what’s putting people at risk. It’s not just the act of banning abortion. It’s not even just the act of criminalizing abortion, although I think that’s a big piece of it. It’s the degree to which states want to punish people that’s making doctors second-guess whether these are real emergencies, or emergencies they could defend in a court of law before a prosecutor.

LaFrance: I’m going to dive into some audience questions. Keith asks: “If Republicans are able to enact a nationwide abortion ban, what are the consequences for states that simply choose to defy that hypothetical?” We’re getting into speculative territory, but we really want to try to imagine where this leads us. David, I’m curious for your take on that. What would happen? And is that something we should anticipate?

French: Well, I used to say extremely destabilizing events are not necessarily likely. I’m less apt to say that extremely destabilizing events are less likely. I could actually easily imagine a circumstance like that, but only if the filibuster is removed or one party gets such a landslide in the Senate that they can cross the 60-vote threshold.

So I think it’s unlikely, but what you would have, if you had a federal abortion ban, is federal law enforcement that would enforce it. And a state saying they’re not going to comply doesn’t do one thing to inhibit federal law enforcement from enforcing federal law. You could refuse to cooperate with federal law enforcement, for example, but federal law enforcement would still have jurisdiction, even if the state tried some version of nullification.

I don’t think that scenario is likely, but I also didn’t think something like January 6 would ever happen. So I approach the more apocalyptic, polarizing scenarios with a lot more humility and trepidation than I used to.

LaFrance: And David, for you as someone who has described yourself as pro-life, do you have any reservations about the way this came to pass? Is your position that hopefully we get to that more democratic, more settled place as a country?

French: So, in my view, the Court’s decision was correct, and it’s happening at a bad time in our country. And when I say happening in a bad time, I don’t just mean a bad time in the sense that we’re polarized. We’ve been polarized a lot. It’s happening at a bad time on the right, and especially in red-state legislatures, which are going to be the ones immediately reacting. If you’re in a blue state, your abortion rights have not changed. You still have access to abortion. If you’re in a red state, that’s where abortion rights are changing. And right now, red states are sadly captured by a spirit of really performative, punitive legislating. We have seen this in other circumstances where red states, which used to at least proclaim they’re strongly supportive of the First Amendment and academic freedom, are now clamping down on speech and clamping down even on academic freedom, even on corporate speech and private speech out of the academy because of CRT or LGBT kinds of panics. So this is a very difficult environment to pass thoughtful, compassionate legislation. And that gives me a great sense of disquiet because of the cultural atmosphere in which it lands.

LaFrance: Here’s another question from someone who’s with us today. Miriam asks: “Is there a religious-liberty issue here? Prohibiting abortion seems to me to be based on the idea that life begins at conception, which is a religious dogma,” she says. And she gives the example of Judaism—which The Atlantic has covered as well—that some interpretations would say that this goes against a core belief in Judaism. Mary, what do you think on this one? Should we expect to see actual legal challenges related to this question of religious liberty?

Ziegler: I mean, we’re already seeing them, right? There’s a synagogue in Tallahassee, Florida, that’s bringing a religious-liberty suit against that state’s recent 15-week abortion ban. We’ve seen these laws and these challenges in the past. They’ve often faced procedural hurdles because courts will often want someone imminently having an abortion or performing an abortion who’s suffering that kind of injury. That’s what the court is looking for when it’s looking for standing.

It wants some kind of immediate skin in the game that sometimes is missing when religious-liberty claims are raised. I think the reason we’re going to see more of this is because, even as the Supreme Court has been changing its interpretation of the Second Amendment and of the right to abortion, it’s also been pretty dramatically changing its interpretation of the religion clauses. It’s pretty considerably expanded its ideas of religious liberty. It’s contracted pretty considerably its ideas about the separation of church and state.

And so, to some degree, people say: “Well, if religious liberties are more capacious than we used to think, doesn’t that apply to people whose religious values would point them to thinking that abortion was not only permitted under certain circumstances, but mandatory?” I imagine that, given the way the Supreme Court operates, there’ll be a way that won’t work. It’ll probably be procedural. I’ve seen arguments made that this is an argument in Reform Judaism and Reform Judaism isn’t really a religion. Those are obviously ridiculous and offensive arguments that dispute the sincerity of people’s religious beliefs, which is something I think we’ve moved beyond as a constitutional order. The Supreme Court got that right in the 1940s when it said judges shouldn’t be in the business of telling people their beliefs are insincere or irrelevant. But I think that there are procedural hurdles.

That claim is not going away, though. If you found the right plaintiff with the right kind of religious objection, it will be difficult for the Supreme Court, I think, to deal with that kind of claim without people saying that religious liberty matters, but not equally for all faith communities. Obviously, that’s something we wouldn’t want to see as a policy matter. And it would raise pretty profound constitutional concerns, too, because one of the first principles when it comes to the religion clauses is that you can’t prefer some faith traditions over others. And I think that’s what people are wondering, if that’s something that’s going to happen or if this Court will kind of find a way to reassure people that the expansion of religious liberty is something that’s going to be equally available to everyone.

French: I agree with Mary. These religious-liberty challenges are going to proliferate. So here’s the really interesting question: One of the defenses to one of those religious-liberty lawsuits would be that if the state recognizes the life of the unborn child, then your religious liberty does not extend to the ability to harm another person. Interestingly, at the same time, we’ve been seeing a lot of the religious-liberty challenges to vaccine mandates coming from the right. And so, in those circumstances, if you’re talking about a vaccine that has the potential to prevent and limit transmission of a communicable disease, what you’re saying is My religious liberty right is broad enough to where I can potentially inflict upon another person a dangerous virus.

And so there’s some tension there with the idea that says I have a religious-liberty right to refuse a vaccine, and then turning around and saying There’s no religious-liberty right to an abortion, if the analysis is based on what impacts other people and doesn’t impact other people. Now, the religious-liberty analysis is more complicated than that, but that’s an element of it that I find pretty fascinating, just as I’ve been very, very troubled by the prevalence of anti-vax sentiment in the pro-life right.

LaFrance: That is fascinating.

Ziegler: And in the background of a lot of this is: Any time those challenges come up, that’s going to be another opportunity for the Supreme Court to think about what it thinks about this interest in protecting life. Is that something that’s going to turn into a full-blown constitutional protection for life in the womb or for fetuses? That’s something that some folks in the pro-life or anti-abortion movement absolutely want. And so I think one thing David’s pointing out is, if that claim goes to court, we’re going to see that as a counterargument. There’s going to be lots of things teed up for the Supreme Court. If it wants to think more about fetal personhood, I think there are going to be ways that’s going to be easily served up.

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