John Donvan

Mary Ziegler and Sarah Isgur, thank you so much for joining us at Intelligence Squared. It's great to have you.

Mary Ziegler

Thanks for having us.

Sarah Isgur

Pumped to be here.

John Donvan

And this is a, a conversation in our s- Agree to Disagree Series and- and that's where, at Intelligence Squared, we- we aim for conversations that really do allow for nuance and also the possibility that our two guests may actually agree on a number of things, but we choose to start out focusing, uh, on where your positions are in disagreement. We really want to understand your thinking on these things.

And, in this case, that starting point is on the fundamental question that's been with us really for decades, but is now totally soared again to the top of the national consciousness, beginning with the leak of the decade, maybe the leak of the century, Justice Samuel Alito's draft opinion overturning Roe. A majority opinion meaning that his side would have the votes to overturn the landmark 1973 decision that guaranteed women the right to an abortion. And what about that judgment? Is it right to end Roe? That is our starting question. And Mary Ziegler, I believe your position is that the answer on the whole is, no, that Roe should not be overturned. Am I right about that?

Mary Ziegler

I think I- I- you are. And I- I- think especially not in this way. This feels kind of rushed. Justice Alito, for example, says, not only is the reasoning of Roe, um, hopelessly wrong, he compares it to the decision, um, a decision upholding racial segregation. Um, but, uh, arguments, for example, that abortion violates the Equal Protection Clause are wrong. And he disposes of those arguments in pretty short order by ironically invoking precedent, which of course, the, the draft opinion dismantles.

Um, and so I- if- if there is an opinion that could convince me that Roe is wrongly decided and there is no right to abortion in the Constitution, this draft doesn't do that, especially on the front of the- the connection between, um, discrimination on the basis of pregnancy, which is something that I think both pro-life and pro-choice Americans have been concerned about in the Constitution. Um, I- I- I don't think the draft takes that seriously, um, and I'm not convinced by it.

John Donvan

Okay. And Sarah Isgur, I'm know that your position on this is, yes, that it is right to end Roe.

Sarah Isgur

And in some ways, Roe was already overturned in Casey just 20 years after it was decided. The Casey Supreme Court said that Roe, they were upholding the technical part of a constitutional right to abortion under stare decisis because they didn't want to undermine the institution of the Supreme Court by reversing a previous decision. But in terms of the legal underpinnings of Roe, they could not support that. Ruth Bader Ginsburg said that it was a breathtaking decision and that, "Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable," as Roe in fact did.

I think there are issues with the Alito opinion. But when it comes to when we should overturn precedent, I think that the, the pro-choice community... When I- I don't love that term, so I'm gonna use it, um, and try to define it when I do here. The pro-choice community has a very good political argument to make, but not a great legal argument to make in defending Roe.

John Donvan

For each of you, was it your sense when the leak happened and when you read Justice Alito's argument that you were, in fact, seeing the future, this was a very clear crystal ball, and that the Court would overturn Roe, period? Mary?

Mary Ziegler

Uh, yeah. Absolutely. I mean, I- I h- I didn't think that that was in question once Justice Kavanaugh and Barrett joined the Court. I didn't- I certainly didn't think that was in question after oral argument in December. And so the- the simple fact of the Court overturning Roe, um, doesn't surprise me. Um, I- I- I've been a little surprised by the timing, I was a little surprised of the tone of the opinion, I was surprised by some of the arguments in the opinion, but I thought it was pretty much inevitable with thi- this composition that we see in the Court, um, that- that- there- it would just be in a matter of time until Roe was overturned.

John Donvan

What about you, Sarah?

Sarah Isgur

So before the argument happened, I actually thought that they would narrow Casey, uphold the Mississippi law, but not touch Roe or Casey. After the argument, I agree with Mary. I thought that, um, Roe and Casey were very much on the table. But what I was surprised about, and I think that Mary and I agree on this, was the tone of the Alito opinion and that Alito got assigned the opinion in the first place. I thought after the argument, especially Gorsuch and Kavanaugh had made such a point about this simply returning to the political sphere, I thought that Alito's opinion went much further in talking about abortion itself and the historical, uh, precedents around, you know, originalism and the original public understanding at the time of the founding in 14th Amendment. Uh, so I was surprised he had the opinion and I was surprised that some of what was in the opinion and some of what wasn't in the opinion.

John Donvan

So Mary, uh, Justice Alito's making it clear i- that o- on the face of it he's not trying to change policy. He is, he is trying to fix what he thinks was a- an episode of bad decision making and bad reasoning by the Court 50 years ago. He makes the argument that the right to abortion just... It's not in the text. It's also not reasonably implied. And he takes down the whole notion that it originally supported, um, something that there was a right to an abortion 50 years ago that the notion of there being a right to privacy implied in the Constitution. And that's a terrible idea, he's saying. I- I- I'd be curious to see your response to that. Is he right or wrong about that?

Mary Ziegler

Why I- I think that, um, obviously the idea of a jurisprudence over original intent where we look to the- the kind of the original public meaning of the Constitution has some obvious political appeal because there have to be some constraints on judges. But I think there's a something equally disturbing about saying that whether there's a right that primarily applies to women, although it applies to other people who can get pregnant, that the existence of that right would be determined by the beliefs of people at a time when women couldn't vote is not attractive.

Um, I- and- I think there's also a kind of interesting kind of gymnastics the, the draft has to perform about explaining, o- one, that as Brett Kavanaugh put it at oral argument the Constitution is neutral. This is an issue that's going back to the states, and two, uh, that this is not going to go beyond the right to abortion, because a lot of Justice Alito's reasoning about what the meaning of the 14th Amendment would've been understood to be at the time it was written would apply to a lot of other, um, things too, like same-sex intimacy, which was criminalized, or interracial marriage, which was criminalized. There may be lots of political reasons the Court wouldn't take up those cases. There may be political reasons red states don't criminalize any of those things. But the reasoning seems to be there. Justice Alito's answer is to say, "Well, abortion is different because abortion is the taking of a fetal life. And fetal life or the life of an unborn child," as he sometimes says in the opinion, um, "has special value."

John Donvan

Can I j- can I jump in just on- on- on the point that I started with? He- he basically makes the argument that- that Roe was wrong because it created a right that doesn't exist. Uh-

Mary Ziegler

Mm-hmm.

John Donvan

... in- in the Constitution. And I'd just like you to take us back to the reasoning in- in 1973, and, and talk through your position of about whether he has a point or, or is he overstating the case.

Mary Ziegler

Well, I think he's overstating the case because it's a case that could be made against th- the entirety of privacy jurisprudence, as he suggests. So at the time Roe came down, um, as you know, Roe did not suggest that there was a right to abortion in the text of the Constitution. And Roe didn't particularly focus on the original public meaning of the 14th Amendment either. Much of Roe was built on precedent, um, on an extension of what the Court saw as other precedents on marriage, on contraception, on parenting, on the right to procreate rather than being sterilized.

And I think Justice Alito's argument that, that privacy right is unconvincing because it lacks a historical pedigree and because it lacks the textual foundation. It- it's in our [inaudible

] that can be applied to other privacy rights, and in fact, has often been applied to other privacy rights. So I- I think the idea that we have no privacy rights, that there are no implied rights that exist beyond those that would've been authorized by the small group of people in power in the 19th century is, is not one I think many people would- would want to pursue in our constitutional tradition.

John Donvan

Sarah, I ha- wanna put the same question to you. Alito's take on the right to privacy, his extreme skepticism about it almost... You know, you- you mentioned the tone of the- of the draft. It's almost, almost snarky, uh, in- in several areas. And one of them is when he's talking about the construction of this right of privacy in, uh, in 1973 as a basis for justifying a right to abortion. Yeah. Again, he's- he's basically saying it's bogus. It's not there. It's made up. What's your take on that?

Sarah Isgur

So there's a few different directions to take this. And I wanna try to, to give each part of Mary's argument serious consideration. So first, there's the argument itself about Roe. Did Roe have the law correct? And look. I just don't think there's a lot of legal scholars out there who are willing to argue that Roe was a good, legal opinion. Even if they agree with the outcome as a policy matter, even if they agree with the outcome as a legal matter in many cases, that Roe itself, um, uh, as Laurence Tribe wrote at one point, um, (laughs), "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

Uh, so I think that Roe itself is a problem. And I think, I- maybe even for the rest of this conversation with Mary, maybe we should separate out Roe and whether it is still good as a legal precedent from the unenumerated right to an abortion, which is really the argument that survives to this day from Roe. Uh, but the Roe point gets to stare decisis and when precedent should be overturned and the factors that Justice Alito uses to say why Roe itself is not worth keeping. And that's when he compares it to Plessy, uh, the case that held separate but equal, was constitutional, that was then overturned by Brown v. Board of Education.

I think that folks arguing that Roe is an important precedent can't come up with a way to distinguish if Roe has to stay, why Plessy didn't have to stay. And this was a problem that came up throughout oral argument. It's a problem throughout the Supreme Court's history why some precedents are bad enough to overturn and some aren't. When we think about, um, uh, gay marriage and rights to privacy in your own bedroom, those were all overturning precedent. Lawrence overturns Bowers. Um, and again, in order to say that Roe can't be overturned for that reason, you have to be able to distinguish why Plessy was different, why Bowers was different. And I haven't seen a- a good argument for that yet.

Now, Mary made several other good points. Um, on the right to privacy and the unenumerated rights in the Constitution. So first, obviously nowhere in the Constitution does it say there's a right to privacy. But that's talking about enumerated rights. There's unenumerated penumbras, as the Supreme Court has said. Uh, this was one of the arguments against having a Bill of Rights, this idea that if we list out our rights, that somehow those will become finite, that that will be our only rights. And we were assured by our founders that, "No, no, this is just listing out some of them, but there's plenty of other rights that exist, they're constitutional, fundamental rights, and we're just not gonna list them all here."

So we know that there are unenumerated rights. And I don't like it when the pro-life side of this argument, the anti-Roe side says, "Well, literally, the word abortion isn't in the Constitution," because that's not the argument. For instance, um, a right to travel, a right to raise your children, um, by sending them, educating them the way you want, sending them to a school that teaches in a certain language. Um, things like that have been found by the Supreme Court to be unenumerated, fundamental constitutional rights.

The right to privacy, I think Justice Alito breaks this up in his draft opinion in- in a helpful way. He says there's this right to privacy of, like, your- your documents, your personal things, the tangible right to privacy. And he's like, that is very clearly an unenumerated right with history and tradition. But then there's this other right to privacy that the Supreme Court starts to recognize in the '60s. Um, and some of the problem with Roe is that it comes at the end of a decade of this idea of the Supreme Court is platonic guardians almost, these nine people just determining what's best without really tying things to any constitutional or judicial philosophy.

And a big difference that we have now is that even the liberal justices on the Supreme Court across the spectrum all want to have judges not as legislatures but as, uh, having a judicial philosophy that is consistent over time on different issues. And the problem? It's always been Roe in that. And Justice Alito, I think, makes that point well when he talks about, uh, the interest a- with Roe as a precedent on the effects that Roe has had in other areas of the law where the Court has had to bend over backwards to try to keep Roe and its sort of distortionary effects on other parts of the law-

John Donvan

What's a- what's an example of that?

Sarah Isgur

Well, for instance, Justice Alito gives this example as well, uh, on free speech, for instance. So there's a case called Hill v. Colorado that was decided in 2000 about, um, having a, a, like, no speech zone around abortion clinics. And it was only about people protesting abortion. Well, that, under any circumstance, would be a content based restriction on someone's right to speech, uh, on, you know, public property.

Um, and in this case, the Supreme Court held no there was sort of a special interest in speech around abortion clinics. So that's an example of a distortionary effect that Roe and abortion has had on Supreme Court precedent that would be very different if abortion had been left to the states in 1963, which again, as Justice Ginsburg pointed out, um, you know, 20 years ago, was already moving towards a more liberalizing direction. And what Roe did was end that and create the culture war that we've had for the last 50 years.

Mary Ziegler

Can I say a couple things? I just- there's some really interesting points Sarah raised, so I just wanna-

John Donvan

Go for it, Mary. Please.

Mary Ziegler

Sure. So I mean, one thing I found unconvincing. So one point. So there's the- the question of, you know, was Roe a s- super persuasive opinion in its original form. And I- I mean, I think Sarah and I agree that the answer to that is no. There's the separate question of just sort of stare decisis. Is Roe really, you know-

John Donvan

Can- can you take a moment just for the layp- lay listener stare decisis?

Mary Ziegler

Yeah. The- the-

John Donvan

Explain the term.

Mary Ziegler

There's a body of rules that determine when we revisit precedent. And Justice Alito's answer is this is a slam dunk, this is as bad as a decision upholding racial segregation. And part of his reasoning is that-

John Donvan

C- can I- can I- can I jump into just-

Mary Ziegler

Sure.

John Donvan

... slow it down for the, for the, for the-

Mary Ziegler

Oh yeah.

John Donvan

... f- the college freshman level listener. The- the stare decisis is- is the notion that once the Court makes a decision, that it takes a- that- that precedent should have enormous power and, a- and- and influence and endurance, uh, and that reversing it, overturning it should be done only for most- the most extremely justifiable reasons.

Sarah Isgur

Even-

John Donvan

But that for the most part... Go ahead.

Sarah Isgur

Even if we think that opinion is wrong. That's an important part of stare decisis.

Mary Ziegler

Right. Exactly. And so-

Sarah Isgur

And we don't know overturn the precedent even if we think it might be incorrect.

Mary Ziegler

Right. And so-

John Donvan

Okay. So what's in play here is that, is that R- Roe v. Wade has been, was- was- has- has been in place for 50 years. And so to be- to reverse it now is a big deal. So-

Mary Ziegler

Right.

John Donvan

Go- go for it.

Mary Ziegler

So it's not just a question of, "Would I have written the Roe v. Wade opinion the way Harry Blackmun did." So I think we've been f- I've been focusing so far on- on that piece of it, like, is there a good constitutional foundation for abortion rights. But I think if you're thinking about overruling a case, the Court also looks at other factors like is Roe unworkable, have people relied on it. And I think there the, the draft is much less convincing.

So Justice Alito's argument that Roe is unworkable it- it sort of boils down to two things. Right? He says, first, the Supreme Court has altered Roe. And that suggests it's unworkable. I mean, I would submit to you that any time something is extremely controversial, and courts' compositions change, it's quite likely that courts are gonna tinker with whatever that is, um, as the justices rethink it. It's gonna be hard to imagine other culture war issues that might not be unworkable too.

Another argument is essentially this is a balancing test. And balancing tests generate unpredictable results. But there are lots of balancing tests in constitutional law. There are balancing tests that the Roberts Court is designed around voting rights. Are all of those unworkable? So I'm- I'm not sure if this is the Court singling out Roe because it doesn't like it or if it's making a case that really can be applied across the board. On reliance, Justice Alito says, "Well, it may-

John Donvan

You need- you need to explain- You need to explain reliance. Okay.

Mary Ziegler

Yeah. Sure. Sorry. [inaudible

]-

John Donvan

So, I- I- Again, I- I- Let me take a crack at it, uh, because I might be-

Mary Ziegler

Well, I- I can do it. I'm- I'm happy to slow it down. Um-

John Donvan

(laughs). Okay. Thanks.

Mary Ziegler

So one factor is reliance. The idea is that when people structure their lives around the rules as they currently are, it's a big deal for the Court to change those rules, that that may do real damage in people's lives. And that has been-

John Donvan

Because they're counting on the be- because they're counting on the being there. They're counting on it-

Mary Ziegler

Exactly.

John Donvan

That's the way it's always been. It should stay that way, and I've organized my life around that, and I don't want things to change all of a sudden.

Mary Ziegler

Exactly. And that had been one of the main arguments in Casey for keeping Roe, essentially that people had planned their lives, um, around the idea that if they got pregnant, they wouldn't have to disrupt a career or an education to have an abortion. And this was a kind of key part of the Casey opinion, groups on both sides of the abortion issue saw it that way.

Justice Alito says essentially if anyone had ever needed abortion, they don't need it anymore. A- adoption is easier and more common now. There's sort of less stigma around unwed parenthood. And I- I found that argument unconvincing for a few reasons. I mean, first, pregnancy hasn't changed, um, especially for people in the parts of the country that are the most likely to ban abortion. Unfortunately, those places have high rates of maternal mortality for people of color. And it- it's sort of odd to me to dismiss those concerns when the Court recognizes concerns about bodily integrity in other context.

Um, and then I'm- I'm not sure without more evidence that the reality of parenting has changed. I- I don't think this is something that's exciting for progressives or conservatives, but we've seen during the pandemic how difficult the, the kind of gendered share of labor has been, particularly for cisgendered women. Um, I think we've seen that adoption is not a sort of easy process emotionally for people who've carried a pregnancy to term. And so the idea that we can kind of easily dismiss these reliance interests in the space of a few paragraphs... Um, as much as I think, you know, there are people who are adopted parents, that's to be celebrated, is that an answer to the reliance argument as simply as Alito suggests it is? I'm not sure.

And then the other point that I wanted to address that Sarah made, um, this is probably the one I feel most strongly about because I've written probably four books about this, the idea that we should overrule Roe largely because or heavily because Roe created our culture wars. It's something A- A- Alito says and in opinion that does a lot of work with history, cites a lot of historical sources. On that argument, he cites a dissent by Antonin Scalia. He doesn't engage with any of the historical literature that suggests that unsurprisingly our conflict on abortion was polarized before Roe, because people hold fundamentally different beliefs about when life begins, about gender roles, about faith.

The Supreme Court didn't create the abortion conflict. And the abortion conflict, much to my chagrin, has been polarized for reasons well beyond Roe. Roe had a part in it, but if the Court is going to kind of do a deep dive into history, it should acknowledge that p- portraying Roe as the kind of only a villain in all of culture wars, absolves many other people of (laughs) responsibility for the mess we find ourselves in, and ignores a pretty extensive literature on how the abortion debate got polarized across a number of disciplines that Justice Alito doesn't engage with at all.

John Donvan

So, Mary, um, Justice Alito argued that if- if you're gonna create a right that's not explicitly mentioned-

Mary Ziegler

Mm-hmm.

John Donvan

... in the Constitution, one of these unenumerated rights as you d- describing them, that they- that those rights need to sort of already out there and recognized. I think he said they need to be deeply rooted in the history and traditions of the United States.

Mary Ziegler

Mm-hmm.

John Donvan

And on that count, he says the claim to a right for abortion falls short because he lays out this history that abortion was- was unacceptable and- and largely a crime going back f- sort of forever.

Mary Ziegler

Mm-hmm.

John Donvan

And I- I wanted you to take on that point and, and tell us if- if you find it persuasive or not.

Mary Ziegler

Well, so this is a complicated point. Right? I think if you ask me as a historian, "Was abortion a crime or was abortion accepted or not," my answer would be the standard historian answer of, "It's complicated." Right? I think Justice Alito's argument is sort of... It- it feels kind of a little bit slanted. It's sort of... It ignores the fact that people, I think, held differing views on whether abortion was a crime much more than the draft suggests until the late 19th century.

In the late 19th century, and even the early 19th century, there was more of a divide about when abortion was a problem, whether it was a problem late in pregnancy only or early as well as late in pregnancy, until quite late in the 19th century. And I think there's a- a question about why abortion was being criminalized, which Justice Alito also sort of glosses over. He says in part, which I don't think is completely wrong, it doesn't matter why a states were criminalizing abortion, um, it suggests there can be no deeply rooted right i- simply if they were doing that.

But then he goes on to say, um, you know, the reason that states were doing this was bec- primarily or almost exclusively because they attached great value to life in the womb. I don't think historians would, would buy that argument. It seems quite clear that un- and also unsurprising that legislators and reformers pushing to criminalize abortion had good as well as bad motives, had that motives that would be recognizable as well as despicable today that's not surprising or unique to people who are opposed to abortion in the 19th century.

But I think because of that, his historical account feels, um, incomplete and- and- and- kind of, um, like, as if there was sort of aiming for a means to an end. That said, I mean, it's pretty clear that no one in the 19th century thought there was a right to abortion. And it's clear that states were criminalizing abortion by the late 19th century. So from a methodologic-

John Donvan

So he's right about that, you're saying.

Mary Ziegler

Yeah. I'm- I'm- I'm totally comfortable. I mean, there's a lot wrong with... They were not necessarily or clearly criminalizing early abortion. Um, that is much more contested. The idea that there's this unbroken tradition going back to the Middle Ages of everyone thinking abortion was a crime is, I don't think, that convincing. It's certainly contested. And the idea that we can-

John Donvan

[inaudible

]-

Mary Ziegler

... admire folks who are criminalizing abortion for having recognizable and celebrit- celebrated motives seems wrong. But the basic point that states were criminalizing abortion, that's just true. So I- I think it's- it's a matter of what do you do with the history, and then how, how in the (laughs) weeds are you willing to get if you're being honest about the role history is playing, because I think the history is kind of uglier and more complicated than this draft suggests.

And if you were really gonna grap- If history and tradition is your, like, lodestar, then I would- I would suggest, you know, that this opinion isn't really trying to get into the weeds with what history and tradition tell us. It's giving us a sort of clean and tidy, not entirely representative vision, but it's not entirely wrong either in terms of the idea that, you know, there wasn't a big... There was no abortion rights movement in the 19th century, um, and states were criminalizing abortion. These things are not contested.

John Donvan

Sarah, you wanna take on that question as well?

Sarah Isgur

Yeah. So I think I agree with almost everything Mary just said, especially the part where even if the history is contested on the fringes, and those fringes might be quite long by the way, I don't mean to suggest they're only on the outside, um, or unimportant, that there's remains the question of what do you do with that. So if we agree that at least some abortions, um, were criminalized at the founding, therefore there was no history and tradition of their being an unenumerated right to abortion. Um, does that mean that we can't find one now?

And this goes to kind of the heart of originalism. Right? This idea that you interpret current law and current lawsuits, um, to look at what the original public understanding was at the time that that language was adopted, whether it's the Constitution or a statute. And I wanna point out some problems. One, as Mary's already alluded to, this idea that women weren't allowed to vote back then, so these state laws, they weren't a part of. And if you think about it from the context of, for instance, interracial marriage, when Loving v. Virginia, which held that there was a constitutional right to marry someone regardless of their race was decided, uh, the Court didn't look back to determine whether it was legal at the time of the founding.

Of course it wasn't. Um, and I think there's a similar argument to be made here about the role of women. The problem is that the solution to that is not to have the Supreme Court say, "So therefore, we decided there should have been or there would have been if women had the right to vote or had more political power at the time of the founding, so we're gonna create that now." Instead, the answer is to amend our Constitution, which of course was done with the 13th and 14th Amendment. The 13th Amendment ended slavery. The 14th Amendment was meant to end the badges of servitude. Um, you know, things that were around slavery due to someone's race. That's where we get the, um, Equal Protection Clause, for instance.

And then of course we have the 19th Amendment, which holds that women have the right to vote. Well, here's the problem. If the 14th Amendment encompasses all of the basic and fundamental, constitutional rights that one's supposed to have under the Equal Protection Clause, then why was the 19th Amendment necessary? I mean, I don't like it. I think that actually it shouldn't have been necessary that women had the right to vote after the 14th Amendment, but they didn't. Uh, because of that, I think that when you think about how we should solve these problems at a legal standpoint if we're not gonna do it from a political standpoint, the answer is to amend the Constitution.

But that's incredibly hard to do. When, um, Justice Scalia was asked before he died, uh, what would be the most important change to our Constitution, or what was the amendment that he supported making to the Constitution, he said, "We should amend the Constitution to make a amending the Constitution easier," for exactly some of these reasons. Because I don't know that there's a good way to interpret the Constitution without looking to how people understood those words at the time.

Even Justice Kagan has said we're all originalists now. Uh, and in light of that then, you end up with problems like Roe. What do you do with something that's about gender, about women when they didn't have that political power at the time that we're looking back at the language or at the original understanding? So if abortion was criminalized at the time of the founding, it's not an enumerated right. And if it's not an enumerated right... An unenumerated right. I apologize. An unenumerated right, one that's not spelled out in the Constitution, but is nevertheless there, then Roe doesn't really have any legal leg to stand on.

And if that's the case, then either we have to leave it to the legislative branches that are now politically representative... You know, more women voted in Mississippi than men in the last election. This is the state that was at issue in this case, Dobbs, which of course this is the draft opinion for Dobbs still, that's a 15-week ban on abortion. And so we can either leave it to the political branches or we can amend our Constitution to make clear that it's an enumerated right.

John Donvan

Okay. Mary, so Sarah has touched on, I would say, the, the major thrust of Alito's argument, that, that regulating abortion is not the Court's business, that it- this is making law, law should be made be the legislatures that, that, that by overturning Ray- uh, Roe, the decision making goes back to the legislatures where the- the people in theory have a say through elections. And that's, that's the biggest argument that he's making in addition to taking down Roe he's- his recommendation for where they should be is what the state legislatures or Congress. I'd like you to take that on.

Mary Ziegler

I- I guess I'm- I'm a little concerned about... So the first thing I think about that is that it- it doesn't do justice to the fact that the Court should be reluctant to overturn precedents, especially when people rely on them in structuring their lives. And Justice Alito somehow believes that if Roe is overturned, that's not going to actually affect significant reliance interest, which I think is sort of a little bit hard to credit, the idea that people will not be affected if in half the country, um, abortion is criminalized, that people will not be affected if there are intense interstate battles about whether people can travel to other states or perform abortions when people travel to other states.

I thi- So there's the question of whether this is a draft that takes precedents seriously. And I'm not- I'm not convinced that it is. I'm- I'm also not convinced that this is an issue that can be returned to the people when we're thinking about equal protection, because the Equal Protection Clause prohibits certain forms of discrimination. It i- it is in the text of the Constitution.

Um, we know that at the time the 14th Amendment was written, uh, the framers of the 14th Amendment were concerned about slavery and what slavery meant for reproduction, um, especially people who were forced to have children, um, forced to give up their children, that the r- reproduction of- of women of color had been entirely controlled by people who purported to own them. And some of those ideas about race and- and also, I think, about sex are- are a part of our tradition in the equal protection law.

And the draft opinion doesn't really take those ideas seriously. Essentially Justice Alito says, "Well, we have some precedents that may clear that, you know, you can't talk about pregnancy discrimination as sex discrimination. So that's the end of the discussion. It goes back to the states. And I- I don't think that's enough of an argument to dispense with that claim.

John Donvan

But to zero in on- on giving it to the legislatures, are you saying that you're uncomfortable with legislatures having, uh, this being in their arena, solely in their arena?

Mary Ziegler

Well, I'm- I'm uncomfortable because I don't know if it's constitutionally permissible. I'm uncomfortable (laughs) because I think it's gonna wound us in a hotter mess politically. And I'm also skeptical that that's where this is gonna stay, because of course, pro-life Americans have submitted briefs to the Court in this case, and are preparing to argue in other cases that abortion is unconstitutional as a matter of original public meaning because a fetus or unborn child is a rights holding person under the 14th Amendment.

Um, I don't know if there will be concurring opinions in this case that invite that argument further. I think you can sort of read some aspects of Justice Alito's draft as inviting that argument. So I'm- I'm not even really fully convinced that this would stay in the states or that some of the justices believe that it should stay in the states. So I guess I'm- I'm not convinced it should be there because of the equal protection argument. And I'm not convinced it will stay there because I- I don't believe that people who are pro-life really want it to stay in the states any more than people who support abortion rights do.

John Donvan

Sarah, do you- do you think this issue should settled by the states, in the states and their legislatures with their lawmakers elected by the people?

Sarah Isgur

Yes. (laughs). Um, yeah. I mean, there's- there are many things, most things that should be decided democratically. You know, for... I- it's an odd, um... (laughs). It's an odd contradiction, frankly, on both sides of this argument as we think about, for instance, the voting rights argument, that it is largely the left that believes in larger democratization of our voting, voting rights for felons for instance, or for, um, people without citizenship. And yet, it's also the left that doesn't want issues like this to be decided democratically. And by the way, the exact opposite on the right, I might add.

Um, so this isn't, uh, this isn't just one side's hypocrisy. Um, but, I think we run into a problem as a society when we keep saying that everything, everything is so important it must be decided by the Court instead of by democracy, by, uh, a republican form of government, because that sort of is the end of self-government if you follow that to its logical conclusion. Right? The vast majority of things are supposed to be decided through compromise, through hard debates, through culture wars, which are nothing new to our generation. Um, and by convincing people and persuading people.

But if everything is an existential threat to- to rights, to our way of life, to our reliance interest, and then it's all decided by nine people, it's no wonder that the Supreme Court is become such a political issue. When I think of presidential campaigns, the Supreme Court now being mentioned way more than it ever was before. Uh, you know, even in my lifetime there were justices confirmed unanimously. Um, in the last hundred years there justices confirmed the same day that they were nominated to the Court. That's unthinkable at this point. And I think that's largely why, because we've stopped legislating, we've stopped compromising, and instead said, "Everything is an issue to be decided in a court by these nine people." And that's just not the way that our Constitution was set up to function and it won't function that way for very long.

John Donvan

Okay, Mary, some strong pushback I think I heard from Sarah there.

Mary Ziegler

Um, I'm not sure I disagree with Sarah on some of that. I- I don't really know if the Supreme Court is a body that's interested in returning all of those issues to- to (laughs) dem- democracy either. This is a court that's, I think, hearing major cases that will change the shape of the administrative state and likely, um, hold that affirmative action programs in universities are unconstitional and hold that gun rights need to be radically expanded. So this does not feel like a court that with- with some exceptions like abortion may really be interested in diminishing its own power. But I agree that there's a lot of disfunction in this country that has led us to the sort of winner take all battles in the court, and that- that is dysfunctional.

So again, if- if it were me in 1973, I may not have decided Roe the way it was decided. I would've preferred things to be done through legislatures. I think I would prefer if- if, you know, somebody made me queen for the day (laughs) to have something like a direct plebiscite, uh, like we saw in Ireland to take this issue not even to- to representatives, but to take this issue directly to the people, because our legislative process at the state and federal level has become dysfunctional in ways that I would hope the left and right would both bemoan.

So I- I- I don't- I don't think Sarah's wrong that we would be better served if more of our issues were resolved through the democratic process. But I think this Supreme Court is singling out Roe in a way I'm not entirely sure will last. I- I think the Court may take up the abortion issue again in a var- a variety of ways. But also is not kind of sticking to that principle when there are pre- other rights it wants to expand, other issues that wants to take out of the democratic process.

John Donvan

Fundamentally, Sarah, does- does, uh, the- the overruling of Roe represent a setback for the rights of women in America?

Sarah Isgur

No. I don't think it's setting back women's rights because I don't think Roe really was ever followed in the first place. Roe shut down a conversation about abortion, um, about when life... Not begins, because that's not really a legal question; that's a moral question. The legal question is when does that life have a cognizable interest that's recognized by law. So for instance, if you kill a pregnant woman, um, and she's, you know, 37 weeks pregnant, in many states, you can get charged with the homicide of the baby as well. That's a legal question.

There are all sorts of things in our society that are morally wrong that we haven't criminalized. And I think that's an important thing to think about when we talk about abortion. You can think something is morally wrong for yourself, for your family, for your friends, for everyone, but the law doesn't come into that. Cutting people off on the freeway, for instance. Morally? I mean, life prison. Right? But we don't legalize against cutting people off. And at the far other end of the spectrum might be abortion.

And so when we think about women's rights, Justice Alito does make the point that this isn't like Loving v. Virginia, the case about interracial marriage or Obergefell, the case about gay marriage, because it's not two consenting adults we're talking about. It's one person and another potential person. And that's what he says makes Roe different. And, uh, to quote, he says, "Our conclusion of the Constitution does not confer such a right to abortion, does not undermine those cases in any way," which interestingly broadens rights. Right? The, uh, uh... One of the most conservative justices on the Supreme Court recognizing those cases as super precedent, if you will, and the legal theory that they were based on, this idea of something called substantive due process.

So when you think of due process, you may think of, um, the rights at your trial, for instance. That would be the process you are due in the legal system. But the courts have created something called substantive due process, which is something more substantive like the right to marry who you want to marry. Conservatives have always been deeply uncomfortable. They don't think there's a textual basis for substantive due process. Um, and here's Justice Alito recognizing substantive due process and saying that it doesn't undermine... that this opinion dr- draft opinion would not undermine those cases in away. So I think that to narrowly focus on just women's rights is probably a mistake, given what this draft opinion could mean overall-

John Donvan

All right.

Sarah Isgur

... to the rights framework.

John Donvan

Let me take the same question then, uh, back to Mary. And Mary, the- the qu- the question very specifically w- will overturning Roe be a setback for the rights of women in A- in America?

Mary Ziegler

I- I think so when I think especially the way the Court kind of breezily dismisses arguments that there's no connection between discriminating against someone on the basis of pregnancy and discriminating against someone on the basis of sex. That's gonna have reverberations even beyond abortion. The fact that the Court thinks there's no problem for women to just give up children for adoption or be pregnant, that that's not really even worthy of the Court's consideration, I mean, the fact that the Court thinks that rights should be determined exclusively by the people, by people at a time when women couldn't vote. I mean, it's hard to imagine that it won't be a setback for women.

I'm not a sociologist, so I'm not sure how in the real world this will play out, either in terms of how effectively states will be able to stop people from having abortions or what that will mean for whens lives and opportunities, but this reads like an opinion by a court that's not particularly concerned about, or at least a draft that isn't particularly concerned about those arguments or those concerns. And that, uh, that worries me.

John Donvan

Let's talk a little bit about implications of, of the overturning of Roe. Um, what- what's gonna happen out there in the country? Mary, you tracked this very closely a- as an historian of abortion rights. And there are s- uh, more than 20 states that have laws on the book that, I think, are described as either zombie laws or laws that can be triggered, that the day that the, the day that the, uh, decision comes down, these laws begin... a process begins where these laws go into effect. And w- what's gonna- what is it gonna be like out there?

Mary Ziegler

Well, I- I think some of that remains to be determined. I mean, so far, the track that states have been on, um, that are going to ban abortion is that the strategy is going to be to criminalize doctors and maybe also to punish people who help, uh, people seeking abortions, which would include, you know, abortion funds, maybe include partners or other people who help pay for get people to abortions. Um, we're starting to see Louisiana has a bill now that's saying that they wanna punish, um, patients or women too.

So it- it's- I think there's gonna be a live debate in a lot of states about wh- what it means to be pro-life. Right? Does it primarily mean that you wanna punish people for having abortions or is- is there more to it? And is punishing people for having abortion something... or even punishing people for- for performing abortions, is that really what the movement, where the movement starts and stops? I think there's a little bit... There's a debate, I think, about that. I think that the p- I don't know the pro-life movement is a big diverse movement with people of variety of ideas about what the movement stands for. But in the short-term, I think we're going to see criminalization and I think then we're going to see a kind of arms race, uh, between pro-choice groups that are gonna try to facilitate access for people in these red states to abortion probably in blue states, and red states then trying to shut those avenues of access down, particularly when it comes to medication abortion.

And wh- what saddens me about that, as someone who studied movements on both sides of the debate, is that there- there are people who are pro-choice and pro-life who are compassionate, who care about mothers, who care about pregnant people. And it- it doesn't seem that those concerns (laughs) are really front and center, um, for red states, even though there are pro-life people who care about those things.

So I- I- I would hope that there are more debates about why people sometimes are having abortions, what could be done about that, instead of simply debates about, um, incarce- incarcerating people, which I think as a country we've become concerned about incarcerating lots of people. Um, the end of Roe could mean incarcerating lots more people. And I would hope as a country in a post Roe America, we could do better than that.

John Donvan

Sa- Sarah, there are red states out there that have laws in the books ready to go, ready to slip into action, that, um, are- are- are rather, um, um... What's the word I'm looking for? I'm not trying to say draconian because I know it went away, but the rather-

Sarah Isgur

Terrible? Sloppy?

John Donvan

The- Well, they- they- The point I wanna get to is that they don't make exceptions for... Some of them don't make exceptions for instances of rape and incest. And I'm- And- and the- [inaudible

]- 10, 5, 10 years ago, that was considered even by many people in the movement to be an extreme position. And now, those laws are standing by and ready to go. And I'm wondering, did they really- d- uh- d- uh- did they intend those laws to become law or were those more, uh, declarations and- and- uh, you know, position papers, uh, for rhetorical purposes? Are they gonna have to rewrite those laws? Is that what you think is gonna happen? Or are they gonna let 'em stand?

Sarah Isgur

So I think Roe had many ill effects on our politics. But one of its illest effects is that it has allowed both sides of the political debate to hide behind Roe, say whatever they want, and cater to a base that's maybe single issue voters, without having to worry about the actual legal effects of laws they're putting into place. So for instance, on the left, uh, Elizabeth Warren, i- just today said that, um, she can't name a single limit that she would put on abortion. Uh, in February, Chuck Schumer brought to a vote in the Senate, a bill that had no limits, um, for abortion. So in theory, a woman could choose an elective abortion at 39 weeks, um, under a federal law like that, which I don't think most Americans would feel comfortable with.

And again, certainly if you look at our, um, you know, similar Western democracies in Europe, they all have very similar, actually, laws around abortion, um, that are compromises. Compromises that I imagine would be pretty close to what we compromise as a country here if there were actually a functioning legislative branch. Um, at the state level where Republicans have a lot more control, uh, I've seen laws that, again, were passed in this Roe era where you don't have to worry about it actually going into effect. As you said, laws that don't, uh, make an exception for the life of the mother, if that law went into effect and a woman died because she was not able to, um, to abort her fetus, choosing between her life and her baby's life, um, uh...

I- I just can't imagine (laughs) the firestorm politically and how people would feel about that in the country. I've also seen laws that have passed, um, that treat ectopic pregnancies as abortion, which again, most of the true pro-life advocates who are sort of studied in pro-lifeness, uh, a term that I'm now going to create, um, don't even treat ectopic pregnancy as an abortion because ectopic pregnancies, where the fertilized egg implants into the fallopian tube have no potential for human life. They cannot survive there. The only potential is for the death of the mother. And so, if they've-

And in that bill, the one in Missouri that I'm specifically thinking of, they didn't intend to do that. It was sloppily drafted, but it didn't matter that it was sloppily drafted because, again, Roe is in effect. So it didn't matter. It was more of a press release than it was a real bill. Yes, these states are gonna have to revisit that because politically they will not function. Um, and I think that we will see some of that tumult, especially in the 20 or so states that have nothing on the books right now, including many of the swing states that have Senate races this November. Uh, Pennsylvania, North Carolina, Wisconsin.

But once that settles again, when you think about sort of a rights framework, I think in the long term we will all be better off if we can get the engine of our legislative branches at the state level and at the federal level moving again where their decisions matter and have effect, because what I think the political compromise and log rolling that will occur will create a functional system that pr- balances a woman's right against sort of the moral inclination the we have about potential personhood, um, and both sides are gonna need to figure out how to do that because neither one right now has had to do for 50 years.

John Donvan

Yeah. We- uh- I mean, we hear Alito saying this is just about abortion and nothing else. And, uh, but I- but I'm not sure how much, um, how controlling that is. You know. In the- in- in- in the Bush v. Gore case in 2000, the justices said that their decision on that election, uh, the- the- their language was that limited to the present circumstances, meaning it's not about any other case. And- and of course, Bush v. Gore got cited again and again in federal cases. In fact, in, uh, some of the challenges to the election brought by Republicans in 2020, Bush v. Gore was cited.

So, it- this idea that it- that you can contain this t- this decision just to this case, I think we have to be skeptical about. But I wanna ask you about the same question, Sarah. Do you think that this is the- the beginning of a process for continued culture wars, um, and- and, um, in the sense that, as Mary said she feels that, um, overturning Roe does diminish the rights of women, I know that you disagree, um, is there gonna be an effort that would similarly be seen to diminish the rights of, um, of- of people who wanna have- who wanna marry people of the same sex for example?

Sarah Isgur

So I agree entirely with Mary's legal analysis of this draft that Justice Alito says that this, uh, isn't gonna touch same-sex marriage, birth control, all of those things. But the reasoning that he uses obviously would. And he was in the dissent on Obergefell, the case on same-sex marriage, saying the very same things he's saying about Roe here. Right? There's no history and tradition. There's no, um, uh, liberty interest, uh, that was used in Obergefell. So, uh, from a philo- judicial philosophical position, um, I agree with everything Mary said.

Now, from a political, and I mean, uh, political meaning how the Court takes cases here, I do think it would be very difficult. Um, first of all, because Obergefell is precedent, you would need to find someone to bring the case obviously. That may not be that hard. Um, second, a circuit court to ignore Supreme Court precedent, forcing the Supreme Court to take the case. Otherwise, assuming the circuit court recognizes gay marriage, you'd need to find four votes of justices who want to take the case. I think it's hard to- to count to four on that one of any justice who wants to revisit that issue right now.

But, and this is the biggest problem for me about the Alito draft, because it doesn't have that limiting principle, and I'm not sure how it could. Um, there are lots of other adjacent cases that haven't yet been decided, pitting, for instance, gay marriage or LGBTQ rights against religious liberty. And that's where I think the rubber's gonna hit the road where this Dobbs decision could be cited. You know, the Kim Davis example is one that never made it to the Supreme Court. But think about, uh, names on birth certificates, surrogacy, uh, all sorts of things yet to make it through our court system. And so on this, not much of a debate between Mary and I. I think we both probably see this legally the same way.

John Donvan

Well, we're all trying to figure out a way to talk to each other, and that's what we're here at, uh, Intelligence Squared, working on all of the time. And the two of you really, really rose to the occasion and showed us that it can be done. Mary Ziegler and Sarah Isgur, thank you so much for joining us in the discussion, uh, about, uh, the future of Roe v. Wade, and its very, very likely overturning. I wanna thank you so much for the way you did it. And, um, say, great to have you with us.

Mary Ziegler

Yeah. Thanks for having us.

Sarah Isgur

Thank you.

John Donvan

And I'm John Donvan. We will see you next time.

I wanna thank you, our audience, for tuning into this episode of Intelligence Squared. I hope you enjoyed it just as much as I did. Intelligence Squared is a nonprofit that is generously funded by listeners like you, members of Intelligence Squared, academic institutions and other partners, and by the Rosenkranz Foundation. Clea Conner is our CEO. David Ariosto is our head of editorial. Amy Craft is our chief of staff and head of production. Shay O'Merra and Marlette Sandoval are our producers. Kim Strempel is our production coordinator. Damon Whittemore is our audio producer. And Robert Rosenkranz is our chairman.

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I'm John Donvan. Thanks so much for listening.