Preet Bharara:

From CAFE in the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

Joyce, so here we are on the afternoon of June 24th at about 2:30 PM, which is not a usual time for our taping, but we are compelled to be here to talk about the Supreme Court opinion that was not unanticipated in the Dobbs case, which has done what everyone predicted.

Preet Bharara:

Roe was overturned. There’s no longer a constitutional right to an abortion in this country. And we’re still making our way through the document. We’ll have a lot more analysis on this when we get together next Tuesday, but we thought it was imperative that we talk about it a little bit. What do you make of the opinion and how are you reacting to it?

Joyce Vance:

There were no surprises here, nothing that substantively different from what we’ve already seen in Alito, but I sort of think Nancy Pelosi said it best. She came to the podium this morning and she said, “There’s no point in saying good morning, because it’s not one.”

Preet Bharara:

It’s not.

Joyce Vance:

And this is not a legal analysis, but I’ll share anyhow, that I think for many women and I suspect for men too, we expected this. We knew that this was coming. We knew what it would look like. And yet there’s something devastating about actually living in the moment.

Joyce Vance:

So I think we should all give ourselves permission to indulge that sadness and that anger. And then tomorrow we need to get up because we have work to do.

Preet Bharara:

Yeah. I mean, ordinarily, we try to be measured. I’m still going to be measured today. And we tell people if things are not as bad as they seem, this is very bad. And it’s not just bad because it did what we thought it was going to do, but largely, we’ll be looking to the future.

Preet Bharara:

It’s not only the case that in many states, beginning immediately, if there’s no exception for the life of the mother or for rape or incest, if you have a daughter or a sister or a mother or a friend who is raped, they can be forced to birth that child in a number of states in the country, because there’s no constitutional right for women to control their bodies with respect to abortion any longer.

Preet Bharara:

Maybe you can say a couple of minutes about what the opinion says largely that we knew about, but there are other opinions that obviously were not leaked. It’s a six-three decision. Roberts sides with the conservatives, but he writes a separate concurrence basically saying what … He said in other cases as well, that he wanted a more measured approach, more incremental approach.

Preet Bharara:

He would’ve supported the law in Mississippi that banned abortions before 15 weeks, but he wouldn’t have outright overturned Roe.

Joyce Vance:

He doesn’t say-

Preet Bharara:

I don’t know if that makes a difference.

Joyce Vance:

I mean, this is a little bit of an annoyance for me because he doesn’t suggest that he believes that Roe is good law. He just says that this is too fast.

Preet Bharara:

Well, he says the one part of Roe that he says should be rejected, which is basically the whole ball of wax if you ask me, is the viability rule. And much of Alito’s opinion is just attacking in every way, shape and form the reasoning of Roe, the viability test in Roe, which he says is arbitrary and should be rejected. And with respect to the rule of viability, Roberts agrees with the majority.

Joyce Vance:

I think that that’s fair. Roberts wants to have it both ways. He wants to reverse Roe, but he wants to be able to say he didn’t reverse Roe.

Preet Bharara:

There is this debate that’s going on with respect to what this means, with respect to other rights. And it feels somehow terrifying that we have to quickly move on, at least because we have a short period of time from the devastation of this opinion and the removal of a right that’s been recognized under the constitution for 50 years and immediately worry about what other long held rights might be removed.

Preet Bharara:

On the one hand, Justice Alito probably recognizing the furor about this, at a couple of points in his opinion tries to make it clear that this does not affect the right to contraception, the right of same sex marriage, the right of interracial marriage, the right of private consensual sex between adults and same sex couples as well and says, “This is only about abortion, because abortion is different because it implicates life.”

Preet Bharara:

However, there is a concurring opinion from another justice, Justice Thomas, who was one of nine and who has cited himself in the past and cites himself in today’s opinion that says something very different. He says that in future cases, this is Justice Thomas talking, “In future cases, we should reconsider all of this court’s substantive due process precedence including Griswold, Lawrence and Obergefell, which relate to contraception, same-sex marriage and private sexual consensual conduct.”

Preet Bharara:

What do you make of this back and forth, the seeming back and forth between Alito and Thomas?

Joyce Vance:

Well, a couple of things. First off, one suspect that this language in the Thomas concurrence is not in the majority opinion because had it been in the majority opinion, some of the justices, maybe Brett Kavanaugh would not have signed on. I guess that’s the skeptic in me saying that.

Joyce Vance:

The second thing that I’ll say is that just because the majority opinion says it doesn’t go this far, it doesn’t implicate these other rights, that that’s really, they’re just winking at the issue because the reality is states will pass laws just like they did with abortion, right? Just like Texas and SBA.

Joyce Vance:

We’ll see a range of laws in states designed to make it very difficult for people to exercise rights like same sex marriage or perhaps even like contraception. And those challenges will work their way through the courts. Justice Alito and his majority cannot prevent that. And that’s the climate that we will live in of these challenges, challenges by the way that when they started out to Roe v. Wade really weren’t taken very seriously.

Joyce Vance:

And we’ve learned how important it is to take these sorts of challenges seriously from the get go. The best thing we can say about Justice Thomas’s concurrence is that no other justice joined it. So at least for right now, this notion that other rights, rights implicated by Griswold and Lawrence and Obergefell are vulnerable, is not a view that has much support on the court outside of Thomas. At least not officially.

Preet Bharara:

Well, that doesn’t make me saying it at all?

Joyce Vance:

But that can change, right?

Preet Bharara:

Yeah. Not only can that change, I think that it is in the minds of various people, the activist pro-life movement, anti-abortion movement doesn’t view this as the end of a journey. They view it as the beginning. And all these other things will be explicitly moved for, campaigned for, and maybe enacted.

Preet Bharara:

We’ve already heard that there are people who want to enact nationally, federally abandoned abortion. And if I say something else, there’s something about this case is a microcosm for why it is not crazy and in fact, intelligent, to be fearful that these other rights will be in jeopardy also. It’s not just Justice Thomas.

Preet Bharara:

Justice Thomas just had, I guess the wherewithal to say it. If you look at Chief Justice Roberts’s opinion, he talks about the evolution of what was being asked for in this case, in the Dobbs case, as an initial matter. Mississippi just said, “You should find our law restricting abortion to be constitutional.”

Preet Bharara:

It did not say, and went out of its way, as Justice Roberts describes, say, “We’re not asking for Roe to be overturned. We’re not asking for that.” And then he says, “Well, they started to put in sentences that suggested we might overturn Roe,” and then as Justice Roberts’ rights, after we granted certiorari, meaning after we granted a review, Mississippi changed course.

Preet Bharara:

And then in its principle brief, later in the litigation, once they knew they had a hearing at the Supreme Court, in its principle brief, the state bluntly announced that the court should overrule Roe and Casey. That to me is the kind of thing we’re going to see.

Preet Bharara:

It’s important for people on the right, because they care about politics and they care about elections and they care about backlash and members of the court like Alito also care about that. When you look at what Mississippi did, they changed their view. They changed what they asked for because they saw it was within reach.

Preet Bharara:

And the same thing that Alito and others are saying is not going to happen. Contraception, same sex marriage and other rights, they’re absolutely in the chopping block.

Joyce Vance:

Could not agree more. The problem here is these notions that legally seem so farfetched, the notion that it would be possible to reverse Roe v. Wade, to ignore 50 years of precedent of stare decisis in an environment where the tests that the court adopt for deciding when precedent like this can be reversed include criteria like people’s reliance on the law that was in place.

Joyce Vance:

It seems impossible. The lesson of Dobbs is that it’s not. It is in fact possible.

Preet Bharara:

What do you make of the reliance on history and historical precedent with respect to approval of, or condemnation of abortion back at the time the constitution was written? Is that the right way to be looking at it like the majority does?

Joyce Vance:

I mean, I guess that means that slavery could come back into vogue too. Look, this notion that the constitution is a dead document and the way the majority views it, that rights that weren’t existent and firmly entrenched at the time of the founding don’t have any voice in a modern era, this notion that if it’s not explicitly written into the constitution, it’s not a right.

Joyce Vance:

This is farfetched because we have a lot of rights that aren’t written into the constitution, including I might point out, the right to vote. The constitution is not a document that really thinks about women in really any way at all. We don’t see she used in the constitution.

Joyce Vance:

So I suppose that could be used to strip women of any number of rights. But in fact, we live in a world where women have rights that say that they can’t be discriminated against, for instance, in the workplace. This court’s analysis taken to an extreme, and since this is a court that likes to go to extremes, I think we’re entitled to think about it.

Joyce Vance:

Taken to an extreme, this is the sort of an analysis that could be used to strip many of the advances that we’ve made. And many people have said this today, it’s true. This is the first case where the court has revoked a right that it found to exist, a constitutional protection that it decided existed.

Joyce Vance:

This is the first time that’s been stripped away. And usually, if you have a first time in legal terms where you create the precedent for doing something, someone will drive a truck through that precedent and do it more times. And that’s really my biggest concern following today.

Preet Bharara:

Yeah. I think for good reason. Now, some people will ask, what does this mean immediately? And in some places it effectively means the immediate cessation of the provision of abortion, not in states like New York and New Jersey where I’m from. But in other states, it will mean effectively there’s no ability to do that.

Preet Bharara:

And then people will ask the question, and employers have been asking this question, it’s a legal question. What if they facilitate the travel of women outside of the jurisdiction or outside of the state to some place where they can get an abortion? Does anything in this opinion tell us anything about that question?

Joyce Vance:

So there’s the suggestion in Justice Kavanaugh’s concurrence that there are ways to protect these sort of differences, this patchwork quilt of different state laws that will exist after Dobbs. But in reality, it’s not tough to envision a state like Alabama passing a law that for instance, makes it a crime to join a conspiracy to help a woman obtain an abortion out of state.

Joyce Vance:

And all of the conduct that we’d need to take place for a conviction under a statute like that would be conduct that would occur inside of the state of Alabama. You would enter into the agreement. You would have the intent to go and get an abortion elsewhere, and Alabama, which already criminalizes abortion as of this morning, would be able to prosecute you for that.

Joyce Vance:

So I think the analysis that Justice Kavanaugh offers is hollow protection for people who would like to go out of state to exercise their rights.

Preet Bharara:

Yeah, look, it’s not a good outlook for abortion rights, reproductive rights, women’s abilities to control their bodies. It’s not a great outlook, even in the ways that most conservatives would’ve conceded exceptions for the life of the mother and for rape and incest. We are seeing a movement in favor of a very, very broad and blanket prohibition and abortion in a lot of places. That’s where the momentum is.

Preet Bharara:

And to the extent anybody thinks that the Supreme Court can change course yet again, I don’t see that in the near future or in the medium term because you have a lock in Supreme Court of six versus three, and it would take a lot to change that balance.

Joyce Vance:

So this is where I think it’s important for us to not feel downtrodden, to not give into this notion that there’s nothing that we can do immediately, so we should give up. And I think we can take a lesson from the persistence that Republicans showed in getting Roe reversed. It took them 50 years.

Joyce Vance:

Well, we don’t have any options. We have to find a path forward and it may well be that that path starts in state legislatures. I suspect that that is the case. Mike Pence called this morning for a nationwide ban on abortion, but not one passed in the United States Congress, one passed on a state by state basis.

Joyce Vance:

So people that live in states that have abortion rights need to protect their legislative majorities, people in states … And it’s important to note that in many states where 63% of people nationwide favor some access to abortion, there are a lot of gradations in there.

Joyce Vance:

Some people might favor abortion only in the case of a threat to the mom’s life. But the reality is that majorities of American people favor some access to abortion in states where these strongly conservative gerrymandered majorities have done away with abortion rights in totality and even criminalized abortion. People need to work at that state level to begin to restore some rational basis for that legislation comparative to what the people in the state would like to see.

Joyce Vance:

So a slow process one we should work towards, Preet, to your point that that six-three super conservative majority in the Supreme Court isn’t going any place in the near future. While that might be true, it’s an opportunity and a moment where Democrats and others who believe that women shouldn’t be relegated permanently to second class citizenship need to think about regaining majorities in the Senate that will vote to confirm Supreme Court justices who reflect American tradition and American views of civil rights.

Joyce Vance:

And that too is not going to be a process that takes place overnight. So we need to begin that journey today so that we don’t wake up in a moment, 10 years down the road where we need that majority and it’s not available to us.

Preet Bharara:

Look, I’m heartened as I often say by the young people who care about their rights and who care about the future. My daughter, if I can end in a personal note, my daughter who’s 21 will be a senior in college, this summer is working for a gun reform advocacy organization. I won’t say which. And so yesterday, we’re texting back and forth about the Bruen case that set back the campaign for reasonable gun safety laws striking down a hundred-year-old law in New York that makes common sense and reduces gun violence and deaths from gun violence.

Preet Bharara:

And today, she’s outside the Supreme Court. She sent me pictures and videos from the protest. So I’m proud of her and lots of other people who are not going to give up and will keep fighting for what’s right and proper and constitutional.

Preet Bharara:

But the bottom line here is that the majority of Americans have reasonable and balanced views about this issue. And we have to get our government back in kilter. And that means electing people who understand what the public wants, because a lot of this has to happen legislatively now and will be difficult if not impossible to do through the courts, which the conservatives will say, that’s what they wanted all along.

Preet Bharara:

But now we have no choice and people need to make their feelings known in an appropriate and peaceful way and vote in November and vote in 2024. This disaster of a president named Donald Trump, he’s been gone for a while, but as you and I have said many, many times, and others have said, the legacy of a president lives on most conspicuously and most consequentially in the Supreme Court picks.

Preet Bharara:

And he got three, but that doesn’t mean we can’t fight in the legislatures, in the states and federally, to preserve as much of the right as needs to be preserved.

Joyce Vance:

An important way to carry that fight forward and Preet, I think you said something important here, when you talked about the fact that many people are supportive of this right. And that might differ from person to person, but for many people, even those people who have some concerns about abortion in some circumstances, what’s more important is letting women make these difficult decisions on their own.

Joyce Vance:

So this notion that we want to remove these sorts of decisions from women and let the state make those decisions for them is deeply troubling. And there’s probably a larger consensus on that issue than even on abortion its own. So as you speak with people and it is important that we not shy away from speaking about these issues and having difficult conversations with people, part of our focus should be on abortion itself. And part of our focus should be on the status that women will have in this society and this country going forward.

Joyce Vance:

Are they people who are able to make decisions about their bodies on their own? After all, we now live in a world where we can’t force people to wear masks, not even to protect other people from a deadly disease. Do we really want to be a country that forces women to carry pregnancies to term no matter how they were conceived? A country that in essence tells women they don’t matter. They don’t count. That seems like a proposition that Americans can consider together and come to a better answer on.

Preet Bharara:

I agree. So Joyce and I, and I’m sure many of you, will be studying the opinion, the possible consequences, the possible responses on Tuesday. Meanwhile, I’m sure you have a lot of thoughts. We’d love to hear them. Send them to letters@cafe.com.

Joyce Vance:

We look forward to listening to your thoughts and sharing ours with you.

Preet Bharara:

That’s it for this week. CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The editorial producer is Jake Kaplan. The audio producer is Nat Wiener and the CAFE team is David Tatasciore, Matthew Billy, Adam Waller, David Kurlander, Sam Ozer-Staton, Noa Azulai, Namita Shah, Claudia Hernandez, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.