Preet Bharara:

From Cafe and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Jeannie Suk Gersen:

Most people are not motivated exactly by what the constitution says but rather what their real fundamental moral beliefs are.

Preet Bharara:

That’s Jeannie Suk Gersen. She’s a constitutional law professor at Harvard Law School, and she’s been studying the legal battle over reproductive rights and abortion access for years. This week, Professor Gersen and I discuss the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the 49-year-old precedent that secured the constitutional right to an abortion.

One of the core questions at issue in the Dobbs decision is the so-called right to privacy, which had been the basis for the abortion rights granted in Roe. Gersen and I dig deep on that question of privacy. We also discuss other legal arguments made by the court’s conservatives and whether additional rights like those relating to same sex marriage and contraception are in jeopardy. That’s coming up. Stay tuned.

Hey, folks, exciting news. On Thursday, July 7th at 6:30 PM Eastern Time, the wonderful hosts of Now & Then, Heather Cox Richardson and Joanne Freeman, will be joined by Emory African American Studies Professor Carol Anderson for a live taping. Last year, Professor Anderson published The Second: Race and Guns in a Fatally Unequal America, a book that is tragically all too relevant. Heather, Joanne and Carol will discuss the scourge of mass shootings that have plagued the nation, the Supreme Court’s ruling in the New York City concealed carry case and the future of the Second Amendment. You can tune in on Cafe’s social platforms or Heather’s Facebook page. You can find a link to get updates for the event in this episode’s show notes. Hope to see you on July 7th, 6:30 PM Eastern for this important conversation. Now let’s get to your questions.

So as you can imagine, I’ve been getting a lot of questions about the sudden emergency testimony of one witness this past Tuesday conducted by the January 6th committee. As you’ll remember, the Congress has been on recess, and it’s unusual, though not unprecedented, for there to be a sudden hearing in the middle of a recess. Members of Congress like their recess or like to be in their home districts. It wasn’t until late Monday night that we found out who the witness was going to be, not someone who’s a household name, not someone who’s at the top of the food chain, but a young staffer, about 25 years old, named Cassidy Hutchinson. And the speculation was if everyone was coming back during recess for this hearing, and it was done all of a sudden, and they were taking great pains to keep the identity of the witness secret, it’s going to be sensational testimony. And I think largely it was.

Some of the things she testified about will loom large in people’s memories. For example, the scuffle in the presidential vehicle on January 6th as Donald Trump appeared to be insisting on going to the Capitol when his Secret Service detail refused his request. There had been some reports that Donald Trump did not put his hand on the steering wheel, did not lunge at the neck of a Secret Service agent, but here’s what we know. Cassidy Hutchinson testified, at great risk to herself, under oath, and these other people have not. I’ve said a couple of times that these hearings I think are going very well and the evidence is coming in very well. It would benefit from good faith cross examination so you would know how much to believe the details of people’s stories. That’s not to be, unfortunately, because that’s not how the process is unfolding. But nonetheless, Cassidy Hutchinson testified about things about which she had personal knowledge, conversations that she was personally involved in or things that she witnessed.

To me overall, as I’ve said before, the key here is for the committee to be able to show, if it can, that it was Donald Trump himself who knew what he was doing, who intended the action to undo the election, and incited people to violence so he could take the election back. What we have not seen and are unlikely to see is some document or some statement by Trump himself or some tape in which Trump says, “I know I lost the election. I know there’s no fraud. I want it to be undone anyway. Do whatever it takes. I don’t care what happens.” We don’t have that.

What we do have though is lots and lots of indirect evidence of what Donald Trump knew, what he intended both by his actions and by his omissions. And I think there is where Cassidy Hutchinson’s testimony is pretty remarkable. She fills in a lot of gaps and adds details about what Trump had to have known, and now, his ultimate defense that he was acting in good faith just is not plausible.

And the more of these pieces of evidence that come in, the less and less plausible and defensible Trump’s conduct is. For example, we know that Trump was told that people in the crowd had guns. We know that he was told that people had body armor. We know that he was told by his lawyers to watch out for his rhetoric, that people had concerns about his speech. We know that he was told that law enforcement was overrun. We know that he was told by multiple people that there was no fraud. And we know that he was told and others were told that there was significant criminal exposure if Donald Trump went to the Capitol. That’s a lot of powerful evidence, combined with things that happened earlier in the proceedings and other hearings.

In the face of all of that knowledge, in the face of all of that evidence, in the face of all of those warnings and admonitions, what does Cassidy Hutchinson say that Trump did? He insisted on going to the Capitol. What else did he do? When told about the chance of hang Mike Pence, Trump said, “Mike Pence deserves it.” When told about the violence, when told about people with weapons, what did he say? He said, “Take down the magnetometers.” Why was he comfortable telling people to take down the magnetometers? Because perhaps in the most famous phrase from the hearing, Trump reportedly said, “They’re not here to hurt me.”

There’s a reason why committee members first asked Cassidy Hutchinson about her background and her prior jobs. This is no liberal. This is a loyal White House aide who previously worked for conservative people like Steve Scalise and Ted Cruz.

So bottom line, I’d like to see all the evidence, I’d like to see all the witnesses, I’d like to see all the transcripts and all the documents. And I’m not making any conclusion yet, and I think that’s wise, but with Cassidy Hutchinson’s testimony, I think we’re closer to the point where we can say, like a judge has said already, that the evidence makes out probable cause to believe that Donald Trump and others may have broken laws.

But I will say the Cassidy Hutchinson testimony was only the latest in a series of dramatic bits of testimony and presentations that the January 6th committee has done. I think the hearing talking about pressure on Georgia officials was very powerful. I think the hearing in particular on pressure brought to bear on DOJ officials was very powerful, and some of the things are reminiscent of a pattern with Donald Trump. So for example, there was testimony that Donald Trump at one point said, “Just say the election was corrupt and leave the rest to me and the Republicans in Congress.” He has this continuing pattern that we’ve seen earlier in some of the impeachment proceedings of just wanting people to make some declaration of bad conduct or misbehavior or malfeasance, and then he will work it after that. It doesn’t matter if it’s true. It doesn’t matter if it’s real. It doesn’t matter if it’s genuine. Just say it.

You may remember that from the Ukrainian affair, but what Donald Trump really wanted was the Ukrainian officials to simply announce they were doing an investigation or opening an investigation into Hunter Biden and Joe Biden. And essentially, he was saying, “Just announce it. Just say there was potential corruption and leave the rest to me.” It’s an M.O. of his.

Overall, consistent with the testimony we saw and the presentation we saw with Cassidy Hutchinson, what strikes me is how many times and on how many occasions there are people in and around Trump’s orbit who engage in conspiracy theories that they don’t really believe in. It’s conspiracy theory after conspiracy theory, whether it’s about satellites or Venezuela or Italy or some other nonsense. There’s a lot of them. What’s equally striking to me is every time one of these conspiracy theories is brought forward and advocated by one of the Kraken lawyers, there are people within the Justice Department or within the Georgia government who actually do detailed thorough investigations of the allegations. Whether it’s about a suitcase of uncounted ballots or anything else, they actually engage in a good bit of debunking.

But then the third thing that strikes me is no matter how many conspiracy theories are put forward and no matter how clearly and thoroughly they’re debunked, Trump and the people around him persist. There’s no getting them off the trail. We had that testimony, for example, where John Eastman, not before January 6th, not in the morning of January 6th but the day after, after he saw what the violence wrought, after he saw what the reaction in the country was, was still talking to the White House Counsel’s Office about taking some action to undo the election. At which point, Mr. Herschmann, who was in the White House Counsel’s Office said, “You really need to knock it off and get yourself an effing great defense lawyer.”

So I think there’ll be some more hearings to come, probably not during the recess, but you never know. Surprises do happen as they happened this week. Keep an eye on all the ways in which Trump’s defense that he was acting in good faith, he thought in reality that the election had been rigged and there was fraud. Think to yourself all the different ways that is implausible and indefensible. That’s what this committee is doing, and that’s what I think its most important function is.

There’s been so much news this week. We have this dramatic testimony before the January 6th committee. People are still processing and digesting the Dobbs opinion which overruled Roe v. Wade. My guess this week is an expert on those subjects, and a couple of the questions that I’ve been getting pretty frequently she’s in the best position to answer. So for example, what happens if Congress, as some people are advocating for, codifies Roe v. Wade at the national level? Would the Supreme Court just knock that down? That’s a good question. And in the other side of the coin, what happens if Congress bans abortion at the national level? Would the Supreme Court strike that down or let that stand?

Those are both excellent questions, which Professor Gersen answers during our talk. We’ll be right back with my conversation with Professor Gersen.

The long awaited Supreme Court ruling in the Dobbs case shook the nation last Friday, and questions remain about what a post Roe world will truly look like. My guest this week, Professor Jeannie Suk Gersen, is a constitutional law professor at Harvard Law School, but she is perhaps more widely known as a contributing writer at The New Yorker where she breaks down complex constitutional questions. She’s followed the legal battle over abortion, privacy and due process for much of her career. Professor Jeannie Suk Gersen, welcome to the show.

Jeannie Suk Gersen:

Thank you. Thank you for having me.

Preet Bharara:

So the whole country is talking about the Dobbs case and what it means for reproductive rights and what it means for women’s rights. You are an expert on a lot of things related to the issue. I guess my first question is at what point did you begin to be concerned or worried that Roe would be overturned?

Jeannie Suk Gersen:

I actually didn’t believe that Roe would be overturned until the oral argument at the Supreme Court.

Preet Bharara:

In this case.

Jeannie Suk Gersen:

In this case.

Preet Bharara:

Wow.

Jeannie Suk Gersen:

Yeah, I actually did not believe that there would be a full overturning of Roe against Wade.

Preet Bharara:

And why did you think that?

Jeannie Suk Gersen:

Well, for one thing, I thought that there would be something like enough support in the conservative camp for the Chief Justice Roberts’ position, the one that he ultimately expressed in his opinion where he joined the majority in the judgment but not in the opinion. And essentially, I thought they would just cut away at Roe as they have been doing for quite some time, and that they would continue to do that, and it would be a little bit more drastic of a cutting away this time because 15 weeks as opposed to viability, which is 23, 24 weeks, that’s a big gap, but I still thought that they would preserve the core of the abortion right and go far short of actually overturning it.

And I thought it because of the incredible upheaval that overturning Roe actually causes, the one that we’re seeing right now unfold before our very eyes and that will have grave consequences. I did not think that the Supreme Court was in for being responsible for that kind of social upheaval. The role of the Supreme Court at the end of the day is, of course, to interpret the law and to say what the constitution means, but it is also to ensure a fair amount of social stability. That stability goes hand in hand with the rule of law, and that stability in on a practical level is very important. And I didn’t think that the Supreme Court would think overturning Roe overnight like that would be something that it wanted to really sign up for. So that’s really what I was thinking.

Preet Bharara:

Yeah. So you underestimated them.

Jeannie Suk Gersen:

I definitely did, mainly because I thought, okay, there may be four votes to overturn but surely there won’t be five. And I didn’t know exactly which of the justices, but I thought Kavanaugh could be a justice who would be interested in the institutional role of the Supreme Court in social stability and just not coming out so strongly as an assertion of power, which is really what the whole Dobbs experience has, I think, communicated to the country.

Preet Bharara:

Right. But Kavanaugh does try, it seems, in his concurring opinion to mitigate a little bit by saying, “Look, what we’re saying today in the Supreme Court is that we’re neutral on the issue of abortion and it’s for the states to decide.” And he also goes out of his way to reiterate what the majority opinion says written by Sam Alito about the consequences for other rights. What do you make of that?

Jeannie Suk Gersen:

Well, that certainly will be a fight that will occur. Do I think that all of the justices and the majority believe that the other rights are not under threat? No. And that is very clear that Justice Thomas-

Preet Bharara:

Justice Thomas made it explicit, right?

Jeannie Suk Gersen:

Yeah, he made it very explicit that those rights are definitely under threat. And if it were up to him, those cases such as Lawrence versus Texas and Obergefell versus Hodges, those cases would be gone. But the question is the other justices, I would have no trouble believing at least some of them would be right there with Justice Thomas, but Justice Kavanaugh’s concurrence I think is very significant for communicating to the country and to his colleagues that he’s not really up for it. He’s not up for it right now. Of course, that could change.

Preet Bharara:

Yeah. So you mentioned social upheaval. Do you believe it’s the case that the conservative justices under-appreciate the upheaval or they do appreciate it and don’t care?

Jeannie Suk Gersen:

There is a way from the conservative side to see it as a social upheaval that Roe versus Wade actually unleashed; namely, by declaring a right to abortion that all of the states were stopped from doing with the abortion issue as they would want to through their democratic process, and that’s what caused the enormous social upheaval of this incredibly polarized debate that we’ve had for five decades about the issue. And I think that it’s possible, I can see that from their side, they’re thinking whatever social upheaval is going to happen is properly what is supposed to happen because this is such a contentious moral issue on which all of the states should get to decide in their own way. And so the social of upheaval, one could see it in that conservative legal framework as one that ought to be allowed to take its course.

Preet Bharara:

I want to go back to the Roberts’ opinion for a second. And his statements about being measured and being incrementalist, and he doesn’t purport to want to overrule Roe directly, but he does want to uphold the Mississippi law, and he rejects the test of viability. Explain to people who are not lawyers or people who are lawyers like me, how would the world be different if Dobbs was a 6-3 decision with John Roberts’ opinion being the majority and no concurrences? So in other words, Roberts’ position is the decision of the court versus what we do have now. How would the world be different?

Jeannie Suk Gersen:

The world would be different in that what the states are permitted to do would be very different. So currently, just based on Dobbs alone, the states are permitted to regulate abortion from the moment of conception, and there are basically no limits on what the states can do, at least based on reading of the opinion alone. Under Chief Justice Roberts’ framework, the preferred framework, if that were the law, then states would have to wait until a certain point. 15 weeks, we know if you regulate after 15 weeks, that’s allowed, but everything before 15 weeks, the court hasn’t said anything about under Roberts’ framework. So then there would be a big series of lawsuits about, well, how about 13 weeks? How about 12 weeks? How about six weeks? It would not stop states at all from actually testing these waters.

Preet Bharara:

There would be a lot of litigation.

Jeannie Suk Gersen:

There just would be a lot of litigation, and some states of course would say, “Let’s just be happy with 15 weeks,” but a lot of states simply wouldn’t be. So I think that the conservative majority of five is in some way right that an opinion along the lines of Chief Justice Roberts merely prolongs the uncertainty and pain of whether these abortion restrictions before 15 weeks are constitutional, and there would be a lot of fighting over it. And now of course, it’s not that fighting is over. Fighting has only begun because now, outside of the court framework, the federal court framework, we are going to see a lot of action in the way of legislative efforts and then, of course, challenges to those efforts. And then also, in state courts, there’ll be a lot of state court cases under state constitutions.

Preet Bharara:

So Roberts, along with the majority, take a lot of issue with the opinion in Roe, the majority opinion in Roe, and in particular, they criticized the viability test. Is there some merit to the criticism of the viability test? Because among other reasons, the data which a fetus can be viable outside of the womb can depend on science and medicine and other factors.

Jeannie Suk Gersen:

There is an argument to be made that viability is an arbitrary line, but to the extent that we’re really talking about the Supreme Court balancing interests and allowing for the balance of interests and one of those interests, of course, is the interest of the pregnant person, and the other on the other side is the interest of the state in potential fetal life. That’s the phrase that’s been used in previous cases, potential fetal life. And so if you’re talking about potential fetal life, the line that has to be drawn has to, in some way, correspond to a point where the potential fetal life starts to flower into a certain interest that seems more significant than before at that point. So where is that line?

And many, many people have different ideas about where that line is. But as for the place to draw the line, I don’t think that the viability line is particularly arbitrary because it is about whether the fetus can survive outside of the body of the pregnant person. And so there’s a reason for it, but to the people who think that life begins at conception, of course, the viability line makes no sense.

Preet Bharara:

So this is the intractable problem in how you draw a line on this particular issue. So putting aside the people who think that life begins at conception and the people who think that life is only after birth. If you’re going to draw the line somewhere in between those two points, other than viability, what are reasonable and legally defensible inflection points? Are there any?

Jeannie Suk Gersen:

Well, there was this line called quickening.

Preet Bharara:

Right. From the past.

Jeannie Suk Gersen:

Right. From the past, in the old days, we had some idea of quickening. And for people who go through pregnancy, people who go through pregnancy talk about different stages, whether it’s like different trimesters or the stage at which one can feel a fetus actually moving inside the body. These are all possible places, but I don’t know that any one of them is going to be more satisfactory than the other to someone who essentially believes that what’s happening is that a fetus is a human life that has an interest in survival. So I do think that the viability line, it is a line. I don’t think there’s a better line.

Preet Bharara:

Well, that’s interesting. Do you sometimes think to yourself that this is just an impossible question about which to get consensus?

Jeannie Suk Gersen:

I think it is an impossible question in this country.

Preet Bharara:

In this country, right. Other countries have learned to live with some balance, right?

Jeannie Suk Gersen:

Yes, that’s right. For a variety of reasons, other countries, including those in Europe, have been able to deal with the differences about when human life begins and come to a compromise, and people are living with it. That doesn’t mean there isn’t conflict, but it isn’t like the cultural flashpoint and the existential issue that people are staking their entire political identities on the way it is in the United States. And there are lots of possible explanations for why that is. We are in fact a large country with many different states that have different cultures and different beliefs. We are in fact a country that has its own history of reliance on the Supreme Court for these fundamental issues. Other countries have less reliance on their courts for settling important moral issues. And we have, for better or for worse, come to be in some way addicted to the Supreme Court being the ultimate arbiter of these issues.

Preet Bharara:

I think that addiction is fading.

Jeannie Suk Gersen:

Yes, that addiction is surely fading and, Preet, that’s actually a really-

Preet Bharara:

Everyone’s got a Supreme Court patch on their arm now.

Jeannie Suk Gersen:

That’s right. And that’s the thing. I think it’s an interesting period for the American public because we’re coming off many decades of feeling like, okay, the Supreme Court is where the litigants go to settle these important issues. And I think that it has taken the focus off the work that the other branches are able to do. And to the extent that we are upset about the focus now being on states and legislatures, I would say let’s turn that around and just stop thinking about going to nine people on the Supreme Court for resolution of our important issues, and actually really think about the power that people hold to make laws that suit the interests of the democratic majority when it comes to important issues as well.

Part of the problem is the Supreme Court has been seen, of course, as the body that protects minority rights and the rights of the vulnerable. But it is true that in the area of abortion, we don’t really know what will really happen when all the people in these different states, even the red states, realize that what their state legislatures are really interested in doing is completely taking away the right to an abortion from conception. Now, will the majority of those people in those states, when it’s not just a fight about, oh, the Supreme Court and its power grab in this area, if that’s not really what this is about, at some point, if it’s really about the policy issue of do we want a right to abortion in our state? Are we really going to see a few years from now that people in the red states are happy and willing to live with the complete lack of a right to bodily autonomy when it comes to the question of pregnancy and whether one gets to choose when that happens?

Preet Bharara:

What’s your prediction about that?

Jeannie Suk Gersen:

I guess my prediction is very cautiously, I’m not very good at prognosticating as you know from the beginning of this interview …

Preet Bharara:

None of us are. None of us are.

Jeannie Suk Gersen:

I’m really not good at it. But what I imagine is that it’s one thing for something to be a culture war issue on which there’s one side and the other side, and you have to be on the right or the left, or you’d be red or blue. It’s another thing for people to do the hard work or really thinking through what kind of state do we want to live in? Do we want to live in a state where there is no right to control my own body?

My prediction is that as that sinks in over time and that it becomes a little bit less possibly of a polarized issue of like there are these states and those states, I think that we’re going to see some movement because also, the polls do show that the majority of the country does support a right to abortion. I think that that will have an effect.

Preet Bharara:

Yeah. I think there’s some thinking, and I subscribe to this a little bit, but who knows? That when people see what has actually been wrought by this overreaching Supreme Court decision, and you see how far people want to go because they have the momentum and the wind at their back in various red states, that people are not going to like what they see, especially when they hear stories of women dying or being forced to give birth to their rapist’s children. And unlike 1973, today, we have social media and we have 24-hour news cycles, and we have a lot of people who are able to get those stories out. Do you think that will have any impact?

Jeannie Suk Gersen:

Well, I understand right now that there is some emphasis on the gruesome possibilities like the ones you just mentioned, and those surely will have some impact. But at the same time, what I’m talking about is not about those more extreme examples. It’s really more about the fact that I think the US public, a lot of people in this country, most of them are quite moderate on this abortion question, that most people in this country don’t want a complete ban on abortion. Most people in this country don’t want a complete permissive attitude toward abortion either. And so the middle there is just that there’s some reasonable limits on abortion, but there’s also a reasonable opportunity to choose whether to terminate a pregnancy. And this is not just in the case of a threat to the pregnant person’s life or if it’s a rapist’s baby or if it is that someone is going to die.

Those things are all terrible outcomes that will certainly increase as a result of Dobbs. But I guess what I’m talking about is that the general opinion of the public is that even outside of those very extreme possibilities, it’s desirable to have some amount of autonomy over abortion, even though it’s not like the full amount so that you could terminate whenever you want. And very few people really want there to be absolutely no abortion available to anyone.

So that moderation, I think, will, at some point, find its way into the discourse. And I hope that that is the case. I hope the only risk is that Dobs itself will galvanize the further polarization of both sides, with each side making more extreme moves, with the right wing going as far as possible to try to destroy every semblance of any kind of abortion access, as well as going even further toward abolishing the right to same sex marriage and same sex intimacy. And then the left wing also, there’s a danger here of people just digging in their heels and saying, “Oh, Dobbs, the Supreme Court did this. Now, the only solution is to say that abortion must be available under any circumstances without any kinds of restrictions and that that’s the only thing that we’re going to be happy with.”

Preet Bharara:

Are you surprised, or should the issue of reliance, whatever you think about the Roe opinion, whatever you think about the balancing test, but 49 years of reliance where millions of people get abortions every year, should that have played a bigger part in the reasoning of the court?

Jeannie Suk Gersen:

I definitely do think that. I think that 49 years is quite a long time in the history of a country that is still quite young. It’s a very significant portion of our history. And it actually dovetails with the Supreme Court’s methodology in thinking about the words, history and tradition, the idea that there’s no fundamental right to abortion according to the Supreme Court because there’s no history and tradition in our country of protecting abortion. In fact, there’s the opposite tradition the Supreme Court says of criminalizing abortion. And what that methodology actually revealed was that when the Supreme Court thinks about history and tradition, they are looking at a very narrow slice of history, of American history. Obviously, they’re erasing the last 50 years and not thinking about that as part of the history.

Preet Bharara:

That’s part of the history too.

Jeannie Suk Gersen:

Yeah, that’s part. Obviously, that is part of the history.

Preet Bharara:

I think by definition.

Jeannie Suk Gersen:

Yes, by definition. And we’re not even just talking about a short period of time. We’re talking about 50 years. That’s half a century. And this country hasn’t been around for that long. So essentially, to erase 50 years of history, but then to say, oh, our test is based on history and tradition and tethered completely to history and tradition, and then to take a very small, narrow segment of American history very selectively chosen and to say there were laws against abortion, laws criminalizing abortion at certain points in our history. And that is the history that shows us that there’s no fundamental right to abortion. I just think there’s something really just blind about this way of approaching the question of fundamental rights.

Preet Bharara:

Isn’t it even worse than that? Because even if you were broader in your look at history, if that history is from, for example, 1800 when women had very few rights and didn’t have the right to vote, which is perhaps the most important right, that any history and tradition that arose in that society and in that fledgling democracy needs to be discounted. Fair?

Jeannie Suk Gersen:

I think it’s really important to account, if your test is history and tradition, you’ve got to have a more nuanced and complete sense of history. And of course, history is conflicting that you’re never going to have one consistent story in the history of the United States, and so you got to take all of that into account. So imagine if there was an originalist opinion about racial discrimination that essentially said there’s a history and tradition of segregation in this country and so therefore, Brown versus Board of Education.

Preet Bharara:

Yes. That would be crazy. Right?

Jeannie Suk Gersen:

And that it had to be overturned because that was not an originalist opinion, but it just simply wasn’t an originalist opinion. It was an opinion that very much said that our history and tradition broadly construed, including the 14th Amendment’s guarantee of equal protection, that when you take all of those principles into account as well as what they embody, what that requires is that we’re not going to have segregation in the United States and that’s not constitutional.

So the narrow reading of history and tradition does make it possible. I hope and I expect that the Supreme Court won’t actually go there, but it certainly would be consistent with the method that the Supreme Court used in Dobbs to say segregation is part of our history and tradition and white supremacy is part of our history and tradition. So even though the 14th Amendment and the 13th Amendment got rid of slavery, all of these incidents of racism and white supremacy are part of our history and tradition, and so therefore, the constitution doesn’t protect a right against that kind of discrimination. It’s really madness.

Preet Bharara:

I’m just trying to figure out where people like Thomas and Alito are coming from, and it seems that they’re making an additional argument in response to what you just said. So on the one hand, they’re trying to root particular rights in constitutional interpretation on what it means to be deeply rooted in history and tradition. But then they’re also saying, and it seems to me one is perhaps bootstrapping the other, they’re also saying, well, with respect to some things like the example the professor just gave, there is no nationwide movement or controversy over the idea that we should go back to segregation. And they would say the same thing about contraception. They’re trying to reassure folks by saying, yeah, well, abortion is different. It may be true that contraception doesn’t have deep roots in our history going back hundreds of years, but there’s an overall consensus in favor of people’s decisions about contraception, and there’s not marching in the streets against contraception. What do you make of that? Do I have that right?

Jeannie Suk Gersen:

Well, the thing is that the Supreme Court is speaking with both sides of its mouth. On the one hand, you’re absolutely right that they’re saying something on the order of there’s been this inflamed public discourse and protests and people marching on the streets. On the other hand, they seem to be saying regardless of whether people march on the streets, that’s really not germane to whether something is a constitutional right. So they really want to have it both ways and to first say the inflamed public discourse is part of why we think that Roe was so wrong, but at the same time, to say that, well, people can march all they want but that doesn’t change the meaning of the constitution.

So I think that whether there is going to be a sustained movement against contraception laws, that actually remains to be seen, Preet. I would not be confident that we are not going to see the battle actually move to contraception.

Preet Bharara:

Well, it depends on who the troops are.

Jeannie Suk Gersen:

Yeah.

Preet Bharara:

Certainly there are some people who want that. Thomas wants that.

Jeannie Suk Gersen:

Yeah.

Preet Bharara:

And there are some people on the right who want that. And as the dissent says in Dobbs, based on the logic of Alito, “All rights that have no history, stretching back to the Mid-19th Century, are insecure. Either the mass of the majority’s opinion is hypocrisy or additional constitutional rights are under threat. It is one or the other.” Do you agree with that?

Jeannie Suk Gersen:

I agree with it in the sense of judicial consistency that the principles that Dobbs gives effect to, the logic of Dobbs and the rhetoric of Dobbs all point in the direction that Justice Thomas expressed. However, do I think that the Supreme Court is for sure at this point intending to go there? That I don’t know. I don’t think that it has to go there because we do know that lines can be drawn and that the Supreme Court could simply deny cert for years going forward to any cases that do try to challenge the right to contraception or the right to same sex marriage. They have that choice to not take such cases, or even if such cases were to reach the Supreme Court and they went on the merits, they could in fact say Dobbs doesn’t require us to go here, and there’s no right to life at stake, just like Alito said in Dobbs. They could say that.

So I think that if the Supreme Court is going to be intellectually consistent, Justice Thomas is correct, and the dissenters are correct that that’s where it has to go. But that doesn’t mean that is where they are going to be willing to go.

Preet Bharara:

We’ll be right back with more of my conversation with Professor Gersen after this.

So we talked a bit about the basis for Alito’s opinion and some of the concurrences and what the stated rationale is for striking Roe down, but let’s talk about the foundation of Roe itself. So right to privacy, explain to folks as you might to beginning law students where the right to privacy arises in the constitution that is the foundation of Roe.

Jeannie Suk Gersen:

The 14th Amendment’s due process clause provides that the state cannot take away life, liberty or property without due process of law. So the word liberty is the keyword here when we’re talking about the right to privacy.

So in 1965, in Griswold versus Connecticut, there was a challenge to a Connecticut law that criminalized contraception, and that reached the Supreme Court. And the Supreme Court, looking at that law, essentially said, my goodness … First of all, the plaintiffs were married couples who wanted to use contraception. So the Supreme Court was looking at this and saying, well, what does this mean that the state is actually going to monitor what married people are doing in the safety of their marital bedroom? So the Supreme Court very much saw the issue of the right to contraception in the framework of marriage that you wouldn’t want to entrench on the privacy rights of people who are married to have sex in their own bedrooms. And so the framing of marriage was extremely important to the genesis of the constitutional right to marriage.

But of course, it didn’t stop there because a few years later, single people also asserted a constitutional right to privacy that would include the right to contraception. And the Supreme Court said, yes, it’s not just married couples. It’s also single people who want to use contraception that that would be their right to privacy under the due process clause of the 14th Amendment. And then essentially …

Preet Bharara:

So lay people can understand. Privacy or right to privacy, as many conservatives will say, that language does not appear in the constitution. Correct?

Jeannie Suk Gersen:

So there’s no privacy language in the constitution. What you have is the word liberty. And of course, the word liberty is a very expansive concept. It’s not self-explaining what liberty means. It could mean many, many different things. And so essentially, what the Supreme Court has had to do is to interpret that word over the decades to give content to what liberty means.

Preet Bharara:

So if you apply Sam Alito’s test of something having to be deeply rooted in history and tradition, can you trace, and I think you can, can you trace the place of this concept of privacy as a liberty interest back in time in the US?

Jeannie Suk Gersen:

So certainly, the privacy interest has been understood to inhere in certain of the amendments of the constitution. So in fact, Griswold itself located the right to privacy in several of the constitutional amendments. So for example, take the idea that the state cannot search your house in an unreasonable search, the idea that you have certain zones in which the thoughts that you have are private, that your private associations, that when you associate with people that that cannot be interfered with unduly. So there are certain concepts in the constitution from which you can derive the idea that human beings, in order to be actually free, would have a certain amount of space from the government to not be interfered with, that the government can’t control everything about how you live your life. That is the notion of privacy. And I think-

Preet Bharara:

And that goes back. In other words, I want to apply the conservative’s own test to this notion. That can be just … You write about an 1890 article written by Louis Brandeis and Samuel Warren called, back in 1890, The Right to Privacy. So this is not some recent construct from 1965, right?

Jeannie Suk Gersen:

Yes. Well, in 1990, the future justice, Louis Brandeis, and his colleague, Samuel Warren, they wrote an article called The Right to Privacy. At that time, the privacy they were talking about was the privacy of keeping certain things hidden from the public. If you had certain things in your private life, they didn’t want people like journalists and newspapers to be able to just publish them at will.

Preet Bharara:

It was informational privacy.

Jeannie Suk Gersen:

Yeah. It was informational privacy, the idea that every human being should have the right to shield from the public certain details about themselves and about their lives. So that kind of informational privacy, which I think a lot of people find pretty intuitive, that was what they were talking about.

But over time, I think that courts started to realize that it wasn’t just the idea of shielding information from other people. Courts started to wonder, why is it that we have that right in the first place? Why do you need to shield information from other people? Well, the deeper issue is that if you think that you are being watched and listened to at every turn by either the government or even by private individuals, then you don’t really have full autonomy to make the decisions that you want to make.

Think about it. If you’re constantly aware that you are being watched and listened to, especially by the government but also by other people, then when you go to make decisions, especially sensitive decisions about your life, are you feeling really autonomous and free in order to choose the thing that you want to be able to do?

And I think that that’s why the right to privacy, as we currently understand it in terms of the Supreme Court’s jurisprudence of privacy, it’s mostly about autonomy, the autonomy of people to make private decisions about their lives, about their personal lives that are of deep import to them in the most intimate matters that affect who they are and how they want to live. Those kinds of decisions have to be made autonomously without the state telling you how to do it.

And so the right to privacy encompasses these two different sides. One is about information, and the other one is about decisions, about private autonomous decision-making. They really do intertwine. And I do think that it’s been since the 19th Century that we have had courts recognizing that people do have a right to privacy. The fact that it was constitutionalized in Griswold in 1965 doesn’t make this some newfangled concept.

Preet Bharara:

What do you make of the discussion among legal scholars? And I think you’ve joined this discussion from time to time that maybe reproductive rights as set forth in Roe would’ve been more secure, had the basis not been a right to privacy but some other constitutional or legal basis like equal protection. What’s that debate about and what do you think about it?

Jeannie Suk Gersen:

Wow. I have so much to say about that, and it’s hard to know where to begin.

Preet Bharara:

It’s a podcast. You can spend a little time.

Jeannie Suk Gersen:

Can I? Okay, great. So it is something that I think Ruth Bader Ginsburg was most known for saying in this abortion area that she said it several times throughout the course of her career, that she thought that equal protection would’ve been a better foundation for the abortion right than the right to privacy or due process.

I think there are several ways to approach this question. One is why in the world would anyone think that it would make any difference whatsoever whether the foundation is due process or equal protection when what you’re talking about on the other side of the debate is people who sincerely believe that you are killing a human life? And so if that is the belief that abortion is the killing of a human life, what kind of difference could it possibly make whether the right is found in the due process clause or in the equal protection clause? So that’s one answer to say I do not think that would’ve made a big difference in terms of the public discourse about the right to life and the freedom of choice. That debate was just going to go on that way.

Preet Bharara:

Yeah. I think you said a very fine point, but let me elaborate on that with a different question. Had equal protection or some other basis been at the core of the reproductive right, could Sam Alito’s opinion have been written the same way that it was? Does it have to change much?

Jeannie Suk Gersen:

I think that Justice Ginsburg’s idea and that of many, many people, many legal liberals over time that equal protection would’ve been a better foundation, it comes down to the insecurity that many lawyers have felt about the Supreme Court’s due process jurisprudence in the area of abortion. It has to do with the fact, and it goes all the way back to an earlier period, of Supreme Court history when the Supreme Court found that there was a right, a liberty of contract in the due process clause, and the liberty of contract was used by a conservative Supreme Court to strike down law after law, policy after policy made by progressive legislatures and governments. So it was …

Preet Bharara:

Like child labor laws and the like.

Jeannie Suk Gersen:

Exactly. Child labor laws and employment protections for workers’ hours and wages protections. Those kinds of progressive moves made by legislatures through their democratic processes were being struck down by a conservative Supreme Court based on a fundamental right, the liberty of contract, which they located in the due process clause and considered it part of the liberty that was guaranteed by the due process clause. Now, liberals, legal liberals, lawyers and legal scholars spent decades just excoriating the Supreme Court for that period and saying that that was a shameful period in which the Supreme Court essentially found rights or declared rights that just were made up and were not in the constitution at all, that where in the constitution can you see liberty of contract? It just says liberty. So essentially having spent all that time just-

Preet Bharara:

Making those arguments.

Jeannie Suk Gersen:

… castigating the Supreme Court for essentially making up a right that was not in the constitution in the due process clause. That is the reason that once Roe came down in 1973, you did see liberal legal scholars and lawyers like John Hart Ely and others actually say this doctrine is not legitimate. It is not really grounded in the constitution. They’ve been making those arguments about the liberty of contracts, so now they were going to make them about the right to privacy and the right to abortion, even though those liberals agreed with the result in those cases.

And I think that for someone like Ruth Bader Ginsburg, having been raised, like many of us were, in a legal culture that really excoriated the Lochner era and the Supreme Court’s overreach during that era, it was very tempting to say, oh, the right to privacy grounded in the liberty of the due process clause, that’s not as sturdy a foundation as some other place, namely equal protection, because the words equal protection are there in the constitution unlike privacy or abortion.

That’s how I would explain why people started really believing that somehow the argument in equal protection would make a difference. Now, at the end of the day, would it have made a difference in what Alito calls the inflaming of public debate over the decades? I don’t believe for a second that it would have, namely, because this is really about, for many conservatives, this is about the right to life. But I do think that the opinion would’ve had to have been different. It couldn’t have been this opinion.

Preet Bharara:

Yeah. What’s interesting about this, and maybe this is true of all issues but I think it’s especially true of this, that when lay people, thoughtful lay people on both sides of this question think and argue and deliberate between and among themselves in the public square or in their own families about the propriety of getting an abortion under certain circumstances, no one is ever talking about the constitution, I don’t think, in everyday conversations at the kitchen table or in communities. They have a religious view or they have a view about autonomy. And much of this debate that people like you and me talk about, what is substantive due process, what are the foundations of the right to privacy and all of that, seems to be beside the point. Is there a disconnect there that is of any consequence or not?

Jeannie Suk Gersen:

Well, I would think that you’re right that most people are not motivated exactly by what the constitution says, but rather what their real fundamental moral beliefs are. That is the case. But at the same time, there is a cultural shape that these debates have taken because we are grounding them through the courts in a discourse about what our founding document actually allows or requires.

And you see the same thing with the Second Amendment. It’s a two-way street. On the one hand, the Supreme Court’s decisions on the Second Amendment as a fundamental right that guarantees individuals the right to carry arms, to bear arms, that then feeds into the public discourse, as well as the individual considerations of how they weigh the pros and cons of carrying guns and the importance of that to their identities and their lives. While also, the issue of what to think about guns and safety can also be taking place completely outside the confines of whatever the constitution says. So it’s kind of a mutually reinforcing process where the legal discourse about the constitution feeds into individual and familial and communal thoughts and practices about what is important.

Preet Bharara:

We talked about Clarence Thomas’ concurring opinion in which he calls into question and says that we should revisit actually a number of opinions and decisions by the court that are based on the privacy right, right to contraception, which we’ve discussed, same sex marriage and a few others. The one he leaves out, a lot of people have noticed that he leaves out one case in that line of cases, Loving v. Virginia, that was a 9-0 Supreme Court case upholding the right to interracial marriage. Clarence Thomas obviously has personal interest in that issue probably. Do you have any more complicated theory about why he left that out?

Jeannie Suk Gersen:

I do. There is technically the possibility of saying that Loving versus Virginia was not a pure due process decision, that it wasn’t purely grounded in substantive due process, but rather that it was the idea that it was equal protection that-

Preet Bharara:

Oh. Equal protection that we said-

Jeannie Suk Gersen:

… equal protection … Right.

Preet Bharara:

… wouldn’t have made the difference if it was the basis for reproductive rights, but here, maybe it does make a difference for Clarence Thomas.

Jeannie Suk Gersen:

Maybe for Clarence Thomas, that decision, or maybe he was looking for a way in which one could distinguish, but it’s not utterly out of the question that Loving versus Virginia is slightly different because you could argue that it is based on equal protection and not purely on substantive due process. However, Obergefell versus Hodges, the same sex marriage case, is really also a hybrid case that combines equal protection and due process in a structure that I think my colleague, Larry Tribe, has called a double helix where it’s really both of those things that equal protection and due process that combined together in a hybrid to create the right.

Preet Bharara:

But Thomas could’ve, knowing that there would be some raised eyebrows, could have dropped a footnote, I believe Supreme Court opinions have footnotes from time to time, and made some remark about Loving. So do you find that curious or not?

Jeannie Suk Gersen:

Not really because I doubt that he would’ve wanted to-

Preet Bharara:

Draw attention to it.

Jeannie Suk Gersen:

… draw attention to it or to really go out on a limb to give an interpretation of what Loving really was about and make it explicit when he didn’t have to.

Preet Bharara:

Yeah. Do you believe Brett Kavanaugh’s assessment of the law that after Dobbs, if a state tries to criminalize traveling out of that state to get an abortion or bans it, that would fall because there’s a constitutional right to travel?

Jeannie Suk Gersen:

I certainly think he’s correct that that is what should happen. However, that doesn’t mean states aren’t going try to test exactly this issue in the courts. And eventually, I expect that it will get up to the Supreme Court. And what Brett Kavanaugh is saying, is trying to say, is if it gets up to me and I’m here and I have the fifth vote, I’m not going to do that for you. Yeah.

Preet Bharara:

But if it gets up there in 20 years, the makeup of the court could be different.

Jeannie Suk Gersen:

It could. It could be different. So he’s just laying down a marker that for himself that he is not thinking that states are allowed to prohibit people from traveling for the purposes of obtaining an abortion.

Preet Bharara:

But there’s insecurity about that fact because as you say, those laws will be drafted, they’ll be enacted, they’ll be tested. And during that time, real people who need care and want to assert their reproductive rights, won’t be able to, and they’ll take years, right?

Jeannie Suk Gersen:

Yes. I think the public is really going to get an education in the next while about what the Supreme Court says isn’t always the last word. In fact, this whole year, we’ve been experiencing that whatever the Supreme Court says and whatever was on the books, states have been doing all kinds of things to try to … that definitely contravene what the Supreme Court had said before on the expectation of what they would say in the future. And so anything the Supreme Court says now I think that it’s open season for states to just say we’re going to test it if we’re not sure.

Preet Bharara:

Right. So before we go, I want you to opine on one final thing. The Supreme Court has acted that’s one branch of government. We have a federalist system, so we’ve been talking about the states engaging in either protective or nonprotective lawmaking in this area. But we have a Congress too. We have a federal government, and the Congress itself could act. And on one end of the spectrum, people are saying we should codify Roe so everyone has the right to an abortion if the Supreme Court is not going to recognize it. And on the other end of the spectrum, people are calling for Mike Pence, I think, I believe called for a national ban.

Let’s take the ban first. I don’t think we’re anywhere close politically and demographically that there would be either a ban or a codification on the horizon in Congress, but suppose, hypothetically, we got to a point where Congress enacted a national ban on abortion. That would go through the courts. It would go up to the Supreme Court. Am I right that based on Kavanaugh’s neutrality principle and the fact that they think that there’s no fundamental right, that this court, the same court, the same personnel would say, well, it’s a political question, not in the technical term of it, but it’s something that the people are supposed to decide and they’ve decided and we’re going to leave it alone? Would that be your prediction?

Jeannie Suk Gersen:

That would be my prediction that a federal abortion ban would be upheld by the Supreme Court.

Preet Bharara:

By this court.

Jeannie Suk Gersen:

Yes.

Preet Bharara:

On the other hand, an explicit granting of abortion rights, with certain restrictions presumably, in the Congress, if that went up to the Supreme Court, this Supreme Court, would they also let that stand because the people have spoken or not?

Jeannie Suk Gersen:

Well, it goes to what authority Congress is using to enact such a ban.

Preet Bharara:

Commerce Clause.

Jeannie Suk Gersen:

Yes. So Commerce Clause, yes. I think that is the most promising basis. If they tried to use Section 5, which I know that some of the current proposals do mention Section 5 of the 14th Amendment, which is about enforcing the provisions of the 14th Amendment, essentially the Supreme Court has been pretty clear that if what they’re doing is trying to protect due process of law or liberty, the Supreme Court is going to say no, you don’t get to decide what the constitution means. We do, and we already said that the constitution doesn’t protect the right to abortion, so you can’t codify abortion, the right to abortion through legislation.

But I think the Commerce Clause basis could be upheld, however, we also have to deal with a whole bunch of Commerce Clause decisions of the Supreme Court that tend to say that matters having to do with family are really best left to the states. And therefore, this could be construed as a federalism problem that the states are supposed to be dealing with things like family planning and intimate matters like that. So there’s language in the Supreme Court cases in the Commerce Clause that certainly the opponents of abortion will seize upon to say that it really creates a federalism problem to essentially allow the federal government to legislate.

Preet Bharara:

Why might not members of the Supreme Court find that the unborn child has a 14th Amendment right to liberty?

Jeannie Suk Gersen:

I think that that is something that I would expect the anti-abortion advocates to try to litigate.

Preet Bharara:

Do you think Thomas thinks that now?

Jeannie Suk Gersen:

If I had to bet money, I would think that he does, but that’s one person. It may not be true for the others. But honestly, when Amy Coney Barrett was nominated to the Supreme Court, I did see and hear conservative commentary that projected that years in the future that this is something that could be possible. The right of a fetus could be declared to exist in the constitutional provision. This is something, I’m not going to rule it out of all possibility. I do think it will be tried and it will be litigated. And I don’t expect that with this current Supreme Court, the way they are configured right now, if they need Justice Kavanaugh’s vote, he’s saying he’s not going to do that, but we don’t know. He could change his mind, and other justices could be put on the court that would feel differently.

Preet Bharara:

But coming back to what I was asking before, this disconnect between constitutional rhetoric and language and argumentation and everyday lay people and political argument and debate. The politicians are absolutely squarely saying every day on the one side of the debate, you’re killing babies. These are babies. These are lives. This is how we talk about them. This is how we think about them. So they’re not using the phrase 14th Amendment, right to liberty, in these political debates, but there’s elected statewide senators in this country who use that language, and the people who protest and the people who hold up placards, who are against Roe, are against Roe on this ground that the unborn child, the fetus or whatever term you want to apply in the first nine months or whatever period, that they have rights, and to harm them is to be committing infanticide. Why wouldn’t that leap into the constitutional rhetoric when that is really the basis for the political argument? Is that not fair?

Jeannie Suk Gersen:

I think it’s fair. I won’t be surprised if we see a federal court sometime in the next few years actually articulate the argument for a fundamental right of the fetus.

Preet Bharara:

Yeah.

Jeannie Suk Gersen:

That will not surprise me in the least. In fact, I could probably write that opinion right now. Given the reliance on history and tradition in such a selective way, you can take all kinds of sources from certain periods of our history and the common law and read them to mean that there’s a fundamental right, that there’s a recognition that there is a life there that needs to be protected. And then it will look like, as opposed to the abortion right, which the Supreme Court says there’s no history and tradition protecting that, supporting that, that you could certainly have an opinion that shows through the analysis of historical sources in that selective manner that our history and tradition provide support for thinking of a fetus as a human life.

Preet Bharara:

Well, we’ll see what happens. People are still analyzing and reviewing. My colleague, Joyce Vance, says every time she reads Dobbs, she finds something new in it or interesting in it or disturbing about it. We’ll see how this all unfolds, and hopefully you can come back.

Jeannie Suk Gersen:

Thank you.

Preet Bharara:

Professor Jeannie Suk Gersen, thank you so much for being on the show. Thank you for your attention to these issues.

Jeannie Suk Gersen:

Thank you, Preet.

Preet Bharara:

My conversation with Professor Gersen continues for members of the Cafe Insider Community. To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Professor Jeannie Suk Gersen.

Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The Cafe team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Sean Walsh, Nama Tusha and Claudia Hernandez. Our music is by Andrew Das. I’m your host, Preet Bharara. Stay tuned.