(SINGING) When you walk in the room, do you have sway?
I’m Kara Swisher, and you’re listening to “Sway.” Earlier this week, many were shocked to read a Supreme Court opinion draft leaked to Politico that would upend the abortion protections afforded by Roe v. Wade. Many thought this day would never come, but now it looks like it might be here.
The text was confirmed to be authentic, though it remains in draft form it was authored by Justice Alito and seems to be backed by four other justices, including three that were nominated by Donald Trump. While the decision will have national implications, it all started with a battle over a law in Mississippi that threatened to ban most abortions after 15 weeks.
So I wanted to track how we got here with someone who’s had a front-row seat in the case. Nancy Northup has spent years working to protect abortion rights in America. She’s the president and C.E.O. of the Center for Reproductive Rights, the group representing the abortion clinic challenging the Mississippi law.
Her team argued this case in front of the Supreme Court last December. And this week they, like the rest of us, got a sense that they might be losing their case and seeing the end of a right that has been in place for 50 years.
Nancy, welcome to “Sway.”
So how did the Center for Reproductive Rights, which you head, in the headquarter in New York, become involved? You often get involved in — lots of groups get involved in various cases across the country.
So at the Center for Reproductive Rights, we work to ensure that reproductive rights are protected in law as fundamental rights. Focusing on the law and the legal protections is what we do. And we have represented the Jackson Women’s Health Organization for years. They are the last clinic in the state of Mississippi.
We represent a number of independent clinics throughout the country. We’ve been to the Supreme Court four times in the last six years on abortion rights issues. So we were representing the clinic from the get-go, from before the law went into effect, and, of course, have taken it all the way to the Supreme Court.
I want you to underscore that the last clinic in Mississippi — there’s one clinic in Mississippi. Explain why that is.
Well, there were more clinics in Mississippi, but states have been passing burdens on abortion access for years. Unnecessary medical regulations, waiting periods, I mean, the amount of red tape that a clinic has to go through just to be open and provide services is enormous.
And so it has now been years that the Jackson Women’s Health Organization in Jackson, Mississippi, has been the only clinic in the state. And they have been proudly, and in great dedication, providing abortion services as the last clinic in Mississippi.
So can you lay out the story of the case at issue here, Dobbs versus Jackson Women’s Health Organization?
Yes, Mississippi passed a ban on abortion at 15 weeks, back in 2018. And the ban is clearly unconstitutional under the Supreme Court’s Roe v. Wade ruling. The court in Roe versus Wade and for almost 50 years since has said that you can’t ultimately ban abortion before fetal viability, which is around 23, 24 weeks.
So Mississippi passed this ban. We sued — The Center for Reproductive Rights sued immediately, representing Jackson Women’s Health Organization. And the district court blocked it right away. It was so clearly unconstitutional.
And then the district court wrote a really important opinion. It could have just said clearly unconstitutional under Roe. One paragraph, let’s move on. But the district court did not. The district court went through how much this ban is like in the courts, where it’s the Old Mississippi, bent on controlling women and minorities, the courts word.
And it talked about the history of racial oppression in Mississippi. It talked about the history of forced sterilization of Black women in Mississippi. And it really put the lie to the state’s argument that somehow this was beneficial to women.
It then goes up to the U.S. Court of Appeals for the Fifth Circuit. It’s a very conservative circuit. We’ve had a lot of cases that have been hard to get through that circuit. But they struck it down, very simply saying there’s an unbroken line of cases since Roe. Shockingly, the Supreme Court took the case.
So they were looking for a way to talk about this, correct?
Yeah, and they had it in front of them for a long time. And it was only after Amy Coney Barrett joined the court that they ultimately took the case. So we’ve been concerned, obviously, from the moment that the court took the case because it obviously was no reason to take the case. Mississippi came in and asked for Roe versus Wade to be overturned. And then we argued the case back in December of 2021.
How did you find out about the draft opinion? When it was published in Politico?
Well, yes. I mean, I was actually at the theater on Monday night. And I got out and was checking to see — it was an opening night of a show, and I was checking to see what the review was. And instead, I saw that my email and my voicemail was blowing up because of the Politico article that they had allegedly had a draft of the opinion. And so I was standing on 43rd Street trying to read it, trying to figure out is this legitimate, is this a hoax, is this actually a draft opinion? What is going on? But, of course, grave concern to see that even back in February — and it did appear, of course, the next day that Chief Justice Roberts did confirm that, in fact, this is a legitimate draft opinion from back in February of 2022. But you know, reading through it and being, frankly, just stunned.
Yeah. What was stunning about it to you? What was the first thing you did, besides reading it and leaving the theater, presumably?
You know, talking to my colleagues and trying to figure out what this means, we were able to discern fairly quickly that this was back in February. And we know because we litigate all the time, including at the Supreme Court, that opinions can change. So you circulate an opinion, and other justices offer amendments and edits, and dissents are being circulated, and there’s a play between the dissent and the majority opinion. And there are times when decisions change.
And that’s true all the way back to Planned Parenthood v. Casey, which was the 1992 case — big watershed case — that reaffirmed Roe v. Wade. So we were looking at that and knowing that that happened. But, obviously, also quite concerned that arguments the state of Mississippi was making about overturning Roe v. Wade had made its way into this draft opinion. Deeply, deeply concerning because of the impact if this were to be the ultimate decision by the Supreme Court.
So this holding isn’t final. Justices can change their votes as draft opinions circulate. Are you expecting the justices to change their minds between now and then? This can change, correct?
Yeah. I mean, justices circulate opinions. Again, if we think about the Planned Parenthood versus Casey case, Justice Kennedy changed his opinion. He initially had voted to overturn Roe. We know that from documents that came out in later years. So I don’t want to speculate on what might happen. I mean, we made our arguments to the court. We were lawyers in the case. So those are where our arguments to the court rested in December. But this is not final. And we have no idea what the state of play is, in terms of where the justices and their opinions are right now.
Do you have any theories? One of the theories is that Chief Justice Roberts had an opinion that would have upheld Mississippi’s law but not struck down Roe. Do you have any speculation? And, of course, the Right is going on and on about how it was someone on the Left, which feels like “look over there” kind of stuff. But it feels as if it’s probably from someone who wanted people to stick with the Alito ruling. And there may have been some bumps on that road.
Yeah, I wouldn’t speculate at all about what the leak is. I think the important thing to focus on is, if a decision comes from the Supreme Court reversing Roe v. Wade, the tremendous impact it will have on access to abortion care and you know, who is going to be the most harmed by that.
You asked earlier about what was surprising about the draft opinion. And I don’t know if it was surprising, but it was deeply disturbing that it was a complete erasure of the impact that restricting abortion has on people who can be pregnant, so on women and other people with the capacity to be pregnant. No discussion of that at all.
And the reality is that one in four women in the United States makes the decision, in their lifetime, to end a pregnancy, one in four. That is a very significant percentage of people making the right decision for themselves.
And when you restrict abortion — this is true before Roe, it’s true around the world today — it’s going to fall hardest on those who already have the greatest economic and systemic barriers to health care. So people struggling to make ends meet, communities of color, young people, immigrants, people in rural areas, that’s who it’s really going to harm.
So explain the arguments Alito, who has written this, is making in this draft opinion — again, which is not final. But what stood out most to you? What were the elements that you felt were most problematic, from your point of view?
Well, most problematic is adopting the argument of the state of Mississippi that there is no guarantee whatsoever in the Constitution to the right to make the decision about ending a pregnancy, that there’s just no right there. The protection of abortion falls in the liberty interest of the 14th Amendment. And so the complete rejection of that understanding was, I would say, the largest shock.
And trying to argue that somehow the court could overturn Roe, could say there’s no liberty interest to making a decision to end a pregnancy, and yet somehow not disturb all of the other rights that are also protected personal liberties.
Although some had said that Roe was a weaker argument, including Ruth Bader Ginsburg, and that it was more easy to overturn than others.
Well, I would say that’s really not vibrant anymore, given how the law has developed. You think about it this way, is that there is a realm of personal liberty that the government may not enter. Roe v. Wade, 1973, it stood on 50 years of decisions by the Supreme Court about what it said in the Casey case in 1992. And it’s cited, going back 50 years before you know, Roe, cases about how you educate your children, cases about use of contraception. All —
That were not necessarily in the Constitution at the start.
Right. The Constitution doesn’t talk about contraception. It doesn’t talk about how you educate your children. It doesn’t talk about marriage. And all of these realms of personal liberty were decided by the Supreme Court before Roe v. Wade.
So you have 50 years before, and then you have 50 years after Roe, where they build on that, where they build on that in the cases on L.G.B.T.Q. equality and striking down the criminalization of same-sex relationships. In the marriage equality cases, in the same-sex marriage cases, they stand on this same realm of personal liberty and cite Planned Parenthood v. Casey as a strong reason for that.
So, in fact, Roe is embedded in the middle of a hundred years of jurisprudence about this realm of personal liberty that the government can’t enter. And if you think about it, if you think about the kind of personal decisions that we believe, in a free society, people should make for themselves, those are decisions about who you marry, how you form your family, how you raise your children. You know, all of that is critical.
So it has been a, you know, a hammering board by the other side to say that Roe is not well grounded. Roe is well grounded.
The arguments you’re making is the attack on privacy and personal rights, which I’ve noticed in a lot of the statements from people, this attack on privacy.
Yeah, on personal — the privacy term was used back when Roe was decided. But really it’s this personal liberty. That is what the 14th Amendment guarantees. And so it is this personal liberty that is at the center. And you can’t pull out Roe in the middle of a hundred years of jurisprudence, just pull out Roe at the 50-year point, and say you’re not going to do damage.
And, in fact, you know, I think that is something that every — I mean, there is enormous support for abortion rights in this country. But also, every single person, even if abortion rights isn’t something they’re thinking about every day, I am sure that the personal liberties about who you marry, and how you raise your kids, and the use of contraception, and the ability to plan them —
Which is also at risk here.
So let me. — they’re linking it to a — it’s sort of a daisy chain of linking. What is the argument you think is strongest here, that Alito is making? One of the things I always assess is, even if I disagree with someone, what’s their strongest argument in this opinion, from your perspective?
I really think that the arguments that are reflected in this draft opinion and that have been made by Mississippi are not strong. I mean, you have to be arguing and going back a hundred years to say we’re not going to protect any of these personal liberties at all, to accept what they are saying.
So there’s not one thing in there that you think would resonate? This idea that it’s very strict constitutionalist, for example, that it’s not in there.
I have led the Center for Reproductive Rights for 19 years. Obviously, I have thought about and read a million opinions. I just don’t feel the arguments are well grounded. They are part of a long-term campaign.
We’ll be back in a minute.
If you like this interview and want to hear others, follow us on your favorite podcast app. You’ll be able to catch up on “Sway” episodes you may have missed, like my conversation with Massachusetts Attorney General Maura Healey, and you’ll get new ones delivered directly to you. More with Nancy Northup after the break.
So explain the standard of fetal viability and what the ruling does to that standard.
Well, again, the draft that has been leaked rejects that standard. And it’s a standard that goes back from Roe v. Wade. The court in Roe decided that the point of fetal viability is a point when states can ban abortion, as long as there’s an exception for the life and health of the woman.
And has been — that was challenged again in the Planned Parenthood versus Casey case that we’ve talked about, in 1992. And they reaffirmed it. You know, they said it is a line that is the best line to be drawn because there is logic to it that, prior to that, it’s up to the person who’s pregnant to be able to make the decision with their doctor.
So states could pass that there are no abortions, no exceptions, correct?
Yeah, well, under the draft opinion, there’s no constitutional guarantee. And so states can decide to ban abortion altogether. And the concern about that is a real one. The Center for Reproductive Rights has been tracking what if Roe fell since 2004. We are not waking up today to realize this was a threat. We were looking at it back in 2004.
And probably half the states in the United States would ban or severely limit abortion if Roe were overturned.
And, in fact, there are 13 states that already have trigger bans that say if Roe is overturned we want to automatically ban abortion in our states. Now we will sue over those and try to block them from going into effect.
But there will be, throughout the South and Midwest, large swaths of the country where people are going to have to drive extraordinarily long distances or fly to get access to abortion services.
Right, in other states. So in the ruling, Alito makes the case that abortion has historically been viewed as a crime. He goes very historical, in fact, citing some extremely old legal precedents. Were you surprised by that?
Not at all because, again, that’s been an argument that the anti-abortion rights movement has been making for a long time. But again, if we go back to the evolution of the personal liberty interests, there are many things now protected under personal liberty that were criminalized in the past, including same-sex relationships. So, you know, that’s an argument that they have been making for a long time.
But the reality is that the 14th Amendment’s liberty interest — this came, the 14th Amendment was enacted after the Civil War. And it was enacted to —
It’s my favorite amendment. But go ahead.
It is a beautiful amendment.
The gays love that amendment. We love that amendment.
Well, it guarantees equality and liberty, two of the most important things in a free society. And it was definitely understood that family formation and ability to both have children and keep your children were an important part of the liberation from enslavement after the Civil War. And so the notion that we just look to whether laws were criminal on the books, no. We look to, again, what is the nature of a fundamental right in a free society?
So explain how much worse, because abortion restrictions have already been in place rather significantly in Texas, Florida, Oklahoma, other places. How much worse could things get for women seeking abortion, than they already are in those states?
Enormously worse. Right now, unfortunately, Texas has been able to use this vigilante bounty-hunting scheme to ban abortion after six weeks. And before the law passed, 85 percent of abortions in Texas were after six weeks.
Well, you know, people have worked really hard to get access to care. So some come earlier in six weeks. And people have gone to other states. It’s one thing to go to Oklahoma from Texas, right. It’s another thing to have to go to Illinois or California or New York. So the places that people have been going, it is going to get that much harder for people to do that.
And therefore, illegal abortions or under worse care, rather than in settings that are safe for people.
Yeah, I mean, people may move to self-managed abortion, which can be safe. But they also are going to actually undergo these — I think the Texas story just illustrates the lengths to which people will go when they want to end a pregnancy. The one thing we know from, again, before Roe, we know from around the world today, is that the criminalization of abortion does not stop people from accessing care. They want to make these decisions for themselves. They do make these decisions for themselves. And it’s not going to stop access to care. It’s going to make it hard. And it’s going to put this chilling, criminal — I mean, we already have a ton of criminal laws regulating abortion, which are unnecessary and should be removed. But this is going to intensify that. And once you’ve criminalized abortion, you know, you actually put every miscarriage at risk of being a crime scene.
Can you explain that, miscarriage is a crime scene? That’s a very interesting way to put it. Because they’re questioning whether it was an attempted abortion, correct? That’s what they’re questioning.
Absolutely. I mean, The Center for Reproductive Rights works around the world, not just in the United States. And we’re working on trying to get women out of prison in El Salvador who are serving 10-, 20-, 30-year sentences on the crime of abortion. And that has happened to some of the women that we represent in El Salvador. That they miscarried, you know, woke up in a hospital, and were arrested because somebody accused them of having an abortion.
And in this country, that is not the case but could be the case in certain states, correct?
Absolutely. Once you have criminalized abortion, every miscarriage, everything that can go wrong in a pregnancy can be a focus of you know, what happened. Was that an abortion?
And what about safety? I have someone in my family who had, when it was illegal, an abortion, many years ago. I mean, it was obviously a long, long time ago. And the story was so horrible. It was an older relative. It was pretty astonishing. It was a pretty astonishing story of what had to happen in order to obtain it and everything else.
And so do you imagine that happening, returning again? Or that people will move to other states to live, or have to go to other states?
I think there’s going to be a tremendous amount of people going to other states. The states that are supportive of abortion rights are gearing up now to be places where people can come. The clinics in those states are gearing up to be able to handle more people.
But, you know, it is not an easy thing, again, when you are sitting, perhaps in the Rio Grande Valley in Texas, to get to Colorado. And what’s even happened now is there’s been a backup, in terms of time, in the waiting periods because — just to get an appointment — in Oklahoma and Louisiana have soared, making it harder for people in those states.
So I do think people are going to travel. There’s going to be a mobilization of helping people to travel. And again, some people will self-manage their abortions through getting medication abortion, maybe legally, maybe not, in other states. But this is just going to be — health care should not be like this.
Not at all.
Right. It’s just havoc.
So President Biden called the possible decision radical but stopped short of calling for changes, like having the Senate change its rules so it could have a simple majority that would allow it to pass abortion legislation. Did Biden go far enough?
Well I mean, I think — the Senate is where they need to make the decision. The president has supported the Women’s Health Protection Act, which would make sure that, across the country, access to abortion care is guaranteed through fetal viability. It would strike down these bans. He’s been clear that he supports the Women’s Health Protection Act. He’ll sign the Women’s Health Protection Act. What’s important is for every single vote in the Senate — and there are 50 votes in the Senate for protecting the right to abortion — they need to get rid of the filibuster so that this can be enacted. I mean, people in the United States, because there’s been so much discussion of Roe, and it’s been almost 50 years, they don’t realize that the Congress has the power.
I understand that. But the president certainly has power to push the Senate to do so. Do you think he’s doing enough?
We would like to have the president be incredibly strong in ensuring that there is a federal response to this. So do we feel like we need even stronger bully pulpit? Absolutely. Absolutely. This is a crisis moment in the country. It’s a health crisis moment. It’s a constitutional crisis moment. And we need all of the elected officials who support abortion rights to be very strong and very clear.
Is this going to energize the Democratic base enough to care and vote in midterms? You know, there’s been a lot of people saying I’m not voting for one thing. There’s been a lot of resistance to doing that. Alito argues that women should use their electoral and political power if they want to change things around abortion access or women and — I don’t know why it’s just women. But do you imagine this will energize that base of voters or not?
Absolutely. Absolutely. I mean, what we were dealing with before the leaked draft opinion was a gap of people understanding that Roe could actually be overturned.
Well, now it’s clear there’s no more — we don’t have to be convincing people. I’ve been very clear for months, in talking to people, that this is not going to be a good outcome in this case. The oral arguments were clear that there was skepticism by Justices looking to overturn Roe.
And so now that disbelief, it’s never going to happen, is gone.
And so we saw on the day after the leak of the draft opinion, people took to the streets all over the country, from Sacramento to Reno, to New York. It wasn’t just Washington at the Supreme Court. It was all over the country.
And people are now waking up, that they need to be quite active in the support of abortion rights. Seventy percent of the country support the right to abortion. And so this is not a matter of changing the minds of people who don’t. This is a matter of making that support visible in every way that a person can. And taking to the streets was the first way to do that.
It is a bit of an exhausted populace, though. This has been years of— one of the things you can say about Republicans, especially under Trump, is relentlessness in pushing for these things. Is that relentless energy also on the other side, even if most people support it, the ability to get them to go out and vote on this issue?
Well, I think it is. I mean, I think you’re seeing — there’s an incredibly strong reproductive health rights and justice movement that has been preparing for this moment for quite some time, is ready to get people mobilized. And I think the reality that this could be taken away is, I think, shocking to people.
So you feel the energy is there. What about among Republicans?
If it’s effectively overturned and, as the draft decision suggests, do they lose a critical weapon to fundraisers who turn out the base? Or do they say let’s keep pressing on? We’ve got to protect it now.
Well, I think, unfortunately, what we already have seen discussed in Washington is that this overturning of Roe and sending it back to states to decide is not the end. They are seeking a national ban on abortion. And so that is going to be the next step.
And what would be the path for that?
The path would be Congress passing a ban on abortion. And it could take the form, which used to be pushed for years, you know, of a personhood law saying that, from the moment of conception, life is protected. Or it could just be a straight-out ban on abortion and expressed that way.
Do you expect that? Do you expect them to go that far?
They’re talking about it, right? And I think it’s so important for people to understand how much the U.S. is standing apart against the global trend of liberalizing abortion laws. In the past 30 years, 50 countries have liberalized their abortion laws.
And the only countries that are in a backsliding mode like the United States are countries in which Democratic institutions have been eroded. So, you know, we’re standing there with Poland. And that is not where we should be standing.
So what is the path for abortion rights activists going forward? What is your next move? What is the first thing you do?
Well, I think the first thing is exactly what is happening right now, which is for people to make their outrage known, to be on the streets, to be protesting. That is just — we have got to be there first.
And then there is going to be a lot of work done at the state level. We’re going to make sure that states that restrict abortion are talking about trying to stop their citizens from going to other states. So we’re going to be working on making sure that does not happen. People need to be defending there.
So there’s going to be a lot of work done at the state level, but also work done at the federal level. Because, again, ultimately we need a national standard.
Reading through this opinion, Alito is referencing Obergefell v. Hodges, the gay marriage law. Griswold could be involved. This is around contraception. Talk about the long-term implications. Because in the draft he attacks the 14th Amendment and the right to privacy that form the basis of Roe.
Will this undermine other laws that rely on the right to privacy — contraception, gay marriage, et cetera? Obviously, I have a stake in this, and many others do. How does that move through the system?
Absolutely, if the Supreme Court were to reverse Roe v. Wade, it would impact the constitutional protections for interracial as well as same-sex marriage, the use of contraception, and other intensely personal decisions that people expect to make in a free society. And it is frighteningly autocratic to think about the government coming in and beginning to make those decisions about not just whether and when you can have children but who you can marry.
And that’s why this notion of you just send it back to the states, let the states decide — well, yeah, the states used to decide things, like it was criminal to have same sex relationships. And the states used to say you can’t marry someone of another race. We’ve had states decide things that ultimately don’t make any sense in a free society and that need to be decided by individuals themselves.
All right. Thank you so much, Nancy. I really appreciate it. It’s going to be another long road, as it always is, seems like. Thanks.
“Sway” is a production of New York Times Opinion. It’s produced by Nayeema Raza, Blakeney Schick, Daphne Chen, Caitlin O’Keefe and Wyatt Orme, with original music by Isaac Jones, mixing by Sonia Herrero and Carole Sabouraud, and fact-checking by Michelle Harris, Mary Marge Locker and Kristina Samulewski. Special thanks to Shannon Busta and Kristin Lin. The senior editor of “Sway” is Nayeema Raza. And the executive producer of New York Times Opinion Audio is Irene Noguchi.
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