Podcast, Other
E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein
- The Supreme Court is expected to rule by June that the federal right to abortion is not protected by the Constitution, shifting authority to state legislatures where at least a dozen "trigger laws" in states like Mississippi, Texas, and Oklahoma will immediately ban or restrict access absent new legislation.
- Approximately 12 to 13 states are projected to become political battlegrounds requiring new compromise laws on gestational limits and exceptions, while roughly 25 states will see no immediate change, leading to a potentially chaotic legislative process lasting several years to address issues like rape, incest, and bans in all circumstances.
- The current five-justice majority (Thomas, Gorsuch, Kavanaugh, Barrett, and Alito) views overturning Roe v. Wade as their primary agenda to correct a perceived "out of bounds" decision, though Chief Justice Roberts may favor an incremental "cut back" approach or a ruling that upholds a specific state ban (e.g., Mississippi's 15-week limit) without a formal full reversal.
- While a federal ban or protection is possible, Congress faces significant hurdles due to the filibuster, and the Court may ignore public sentiment or protests to avoid setting a precedent where leaked drafts alter rulings, with a potential "two-step process" involving the enforcement of dormant statutes that could challenge other substantive due process rights.
- The ruling's legal framework, driven by originalism and the view that unenumerated rights are vulnerable, creates a risk that precedents like Obergefell (same-sex marriage) and Plyler v. Doe could be challenged in the future, though protections like same-sex marriage may only be re-enshrined after public opinion shifts substantially, a timeline similar to the decades between the 1990s and the 2015 decision.
- Political consequences are anticipated for Republicans who fail to compromise on total bans, as roughly 50% of Americans support abortion only under certain circumstances and 32% support it under any circumstance, forming a majority capable of supporting restrictive but non-totalitarian laws, while a period of divisiveness and culture wars is expected until state-level consensus is reached.
- The Court's legitimacy faces potential damage if the public perceives the justices as political actors motivated by correcting past errors rather than following precedent, with justices likely deciding outcomes first and drafting opinions to justify those choices.