Imagining A World Without Roe | Crooked Media
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May 03, 2022
What A Day
Imagining A World Without Roe

In This Episode

  • Supreme Court Chief Justice John Roberts said that the leaked draft majority opinion on overturning abortion rights is authentic and that “it does not represent a decision by the Court or the final position of any member on the issues in the case.” Leah Litman, co-host of Crooked’s “Strict Scrutiny” podcast, joins us to answer our legal questions about what this could mean for abortion access nationwide and future Supreme Court rulings.
  • And in headlines: Russian forces stormed Mariupol’s embattled steel mill, parts of India and Pakistan are in the midst of a brutal heatwave, and the federal government delayed releases of water in Lake Powell on the Colorado River.

 

Show Notes:

 

 

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Transcript

 

Gideon Resnick: It’s Wednesday, May 4th. I’m Gideon Resnick.

 

Priyanka Aribindi: And I’m Priyanka Aribindi. And this is What A Day. We are going to jump straight into the big news: a draft leak from the Supreme Court said it will overturn the national right to abortion.

 

[crowd chants]

 

Gideon Resnick: That was the sound of protesters on Monday night, gathered on the steps of the Supreme Court in D.C. when the news was announced. So to recap, Politico got its hands on a draft majority opinion in the case Dobbs versus Jackson Women’s Health Organization. That case concerns a Mississippi law, which outlaws abortion after 15 weeks of pregnancy. The final ruling on it from the Supreme Court was supposed to come out as early as next month.

 

Priyanka Aribindi: Yeah, but in this leaked draft decision written in February by conservative Justice Samuel Alito, he said that the court’s past rulings that guaranteed the federal rights to abortion, quote, “must be overruled.” We are talking about Roe v. Wade and Planned Parenthood .v Casey. And yesterday, Chief Justice John Roberts said that the leaked document is authentic. He went on to say, quote, “It does not represent a decision by the court or the final position of any member on the issues in the case.” Obviously, devastating news. We have lots of questions. We’ll get answers to our legal questions in just a moment, though, with Leah Litman. She is the co-host of Crooked’s Strict Scrutiny podcast.

 

Gideon Resnick: And as you would expect, abortion rights activists and organizations were stunned by the news as well as motivated to take action. We talked to Jenny Ma, a senior staff attorney for the Center for Reproductive Rights.

 

Jenny Ma: I’m horrified and upset. I want to emphasize that abortion is still legal across the country, but the impact would be devastating if this was the opinion, particularly for Black women and other people of color and those having difficulty making ends meet. If this is the opinion, then make no mistake, generations will be worse off today than they were several decades ago.

 

Priyanka Aribindi: Yeah, that couldn’t be truer. We also heard from Anna Rupani, the head of Fund Texas Choice, which gives support to Texans who need to travel to abortion clinics.

 

Anna Rupani: I am numb, exhausted and just tired of being resilient. We know what it would mean if Roe is overturned. We have been living in a post-Roe world for eight months. It is unsustainable and catastrophic. But one thing I do know is we will continue to fight. Abortion funds are still here, and we will continue to fight because we know that abortion is health care and an act of self-love and determination.

 

Gideon Resnick: Yeah, I mean, just the exasperation in people’s voices is really telling you what you need to know. So there was even more reaction from the halls of Congress, as well as more Republican-led state efforts to outlaw abortions. But we are going to talk about the politics of all of this news in an upcoming episode. As for today, we’re going to get answers to some of our legal questions on all of this. We have with us the co-host of Crooked’s podcast, Strict Scrutiny, Leah Litman. She is also a professor of law at the University of Michigan. Leah, welcome back to What a Day.

 

Leah Litman: Thanks so much for having me.

 

Gideon Resnick: Let’s just start off by saying the draft decision that we have all seen is not a done deal. So what could potentially happen between now and next month when the decision was supposed to be announced that may alter the details of what we’ve seen written there?

 

Leah Litman: Well, first, sometimes justices just change their vote in a case. This actually happened famously in Planned Parenthood versus Casey, the last time the Supreme Court was asked to overrule Roe. At conference Justice Anthony Kennedy originally voted to overrule Roe, but then he changed his mind as opinions were circulated and as the justices continued to talk. So one thing that could happen is a justice could change their ultimate vote about whether to overrule Roe. A second possibility is they might just change what the opinion says. A lot has been said about how frankly aggressive and absolutist the opinion is along several dimensions, and it’s possible that some of those edges will be softened if the court tries to make this opinion depriving so many Americans of health care, you know, more superficially palatable.

 

Gideon Resnick: Yeah, and we were talking before we started here about wrapping our heads around what has happened here. So on that note, you know, how could the news of this leak potentially change that eventual final decision that we see?

 

Leah Litman: It’s impossible to know on some level, maybe you might think, well, if the justices see the public being outraged, political officials lobbying, you know, about how detrimental this would be. On the other hand, from the other side, you might think that while this leak would suggest that if any of the five most conservative justices didn’t overrule Roe, ultimately, then you would have identified who changed their vote and expose them as the flip-flopper. And that was how Justice Kennedy was described, you know, after he changed his vote in Casey. And so it’s impossible to know how this might affect their ultimate decisions, but it would be odd, I think, to think it wouldn’t do so at all.

 

Gideon Resnick: Yeah. And to that effect, to what we know at this current point seems to be that the current position of Chief Justice John Roberts is reportedly – this is according to CNN – to uphold the 15-week Mississippi ban, but not to have joined that draft majority opinion that we saw. That seems a little bit like a distinction without a difference, but what would it mean if the majority did end up taking that position instead of this draft more all-encompassing one?

 

Leah Litman: A few different things. One is it would at least create some uncertainty about whether states can enact complete and total bans on abortion. That is, we don’t know whether Oklahoma would be allowed to enact its statute just prohibiting abortion at all points during pregnancy. In some respects, it might buy some additional time for people to be able to access a very whittled down form of the abortion right until the Supreme Court pulls the trigger and actually overrules Roe. Another difference would be a decision that doesn’t explicitly overrule Roe, might not have the effect of having trigger laws go back into effect, and trigger laws or laws that are written that say in the event the Supreme Court overrules Roe, then we would completely ban abortion, and not all of those laws are written to go into effect in a world in which the Supreme Court just eviscerates Roe but doesn’t formally overrule it.

 

Priyanka Aribindi: Yeah, so worst case scenario here, can you walk us through some examples of what could happen, you know, if this draft decision, as it reads, currently becomes a reality? I mean, there are several parts to this, but could we start first with the patchwork of abortion access that could kind of spring up across the country.

 

Leah Litman: At a minimum, you know, we are looking at a world in which states that have attempted to restrict access to abortion will be able to do so. You know, we know that Oklahoma and Texas and Florida are considering restrictive abortion laws and are set to allow some restrictive abortion laws to go into effect. You know, various maps show basically reproductive health care deserts in large parts of the American South. But there are also some states that are more purple, you know, in the Midwest or the North, that have some trigger laws still on the books or some pre-Roe criminal abortion ban. So I live in Michigan, and Michigan has a criminal abortion ban that the Michigan Supreme Court said can’t be enforced to the extent it violates the federal Constitution. Well, if the U.S. Supreme Court says that actually it doesn’t violate the federal constitution, there’s a possibility it could be enforced.

 

Gideon Resnick: Right.

 

Priyanka Aribindi: Is there anything else on the trigger laws that are set to go into effect immediately in those various states that you can tell us? Do you know where we should be watching the most closely as of now?

 

Leah Litman: I think it’s difficult to know because in different states there are different possibilities. You know, in Michigan, there’s a possibility that the Michigan Supreme Court could hear a case in which it says, actually, Michigan’s criminal abortion ban violates the state constitution. And it’s possible that in other states they might actually repeal their trigger laws. So it’s difficult to know exactly which state to be paying attention to. But I think what that underscores is, you know, a landscape of a post-Roe world is going to be chaotic, unstable, uncertain, and all of that is going to have the effect of tempering access to abortion.

 

Gideon Resnick: Yeah. And within all of that instability, what proposed actions do you expect to see from either Republican-led or Democratic-led states to come out of an expected SCOTUS decision now that this draft has been out there?

 

Leah Litman: I mean, Republican-led states are going to enact abortion restrictions going up to complete bans. It’s possible they will also try to impose criminal or civil penalties on residents who go out of state in order to obtain access to abortion care. We’ve also seen some states, like Connecticut, attempt to enact immunity-type laws that would insulate or protect residents of that state from legal liability if other states try to impose penalties on them for assisting out-of-state residents in obtaining abortions. So that’s likely to happen after a decision overruling Roe.

 

Gideon Resnick: And I want to talk also again just a little bit about how this news was revealed. Can we talk for a second about, like how that impacts the view of the court? What are the sort of implications of that, and how has Chief Justice Roberts been responding to it?

 

Leah Litman: Well, I mean, this draft opinion, frankly, says we just don’t care what people think about our decisions. We don’t care whether we’re reaching results that reflect a very small minority of views in the country. You know, the justices feel largely insulated from political opinion or any kind of public accountability, and I think that’s reflected in this draft, where the current draft actually criticizes the Court in Planned Parenthood versus Casey for taking into account the views of the public and their desire for Roe not to be overruled. So at least it seems as if five justices in December and in February thought, Just try us libs, like we don’t care.

 

Priyanka Aribindi: Yeah. Switching gears a little bit, Slate’s court watcher Mark Joseph Stern reported that the draft decision directly criticized some of the court’s other past decisions that legalized same-sex marriage and decriminalized sodomy. In response, LGBTQ+ activists have really sounded the alarms at those rights, as well as some others, may be on the chopping block. So I’d love to know what your read on that is, and what other issues that people who are concerned, like us, should be worried about.

 

Leah Litman: Frankly, the answer is potentially everything. It’s clear from the draft of this opinion that the only thing stopping this court is just the number of votes and whether they can get to five votes. I mean, the critiques that the court makes of Roe versus Wade apply to many other foundational, fundamental rights. The court says abortion isn’t mentioned in the text of the Constitution, neither is interracial marriage, neither is the right to contraception, neither are so many other rights. And the court’s effort to distinguish those cases just says, well, abortion is different. Nothing is really stopping this court from wiping away many other fundamental rights as well.

 

Priyanka Aribindi: Yeah, just there’s no part of this that isn’t incredibly alarming. In upcoming episodes of our show, we’ll talk a little bit more about the political reaction and fallout of this draft decision. But yesterday, some members of Congress talked about the need to codify Roe in federal legislation. We have a clip of Senator Elizabeth Warren speaking to the crowds in front of the court yesterday. Let’s take a listen:

 

[clip of Senator Elizabeth Warren] I am here because I am angry. I am here because the United States Congress can change all of this.

 

Priyanka Aribindi: So can you tell us a little more about how that could happen with Congress and, you know, the impact it could have here, you know, whether or not that’s even a real possibility?

 

Leah Litman: So there are a few things kind of standing in the way. One is, of course, the Senate and the existence of the filibuster. There’s no way that a federal statutory protection for abortion is going to get more than 60 votes in the Senate. And the other big obstacle is, again, the Supreme Court. Nothing is going to stop the Supreme Court from invalidating that federal statute, even if it’s enacted. At various points in the opinion Justice Alito suggests, Well, a lot of states actually view fetuses as people who are entitled to constitutional protection, and if that’s right, then the Constitution actually requires the government to criminalize and prosecute abortion because it endangers life. And another possible basis that the court could use to strike down that legislation would be to say, Well Congress just lacks the authority to regulate abortion in the first place. I think that would be wildly inconsistent with existing doctrine, but reason, logic is not constraining this court.

 

Gideon Resnick: Right. And is there some other sort of federal mechanism by which you could end up circumventing that?

 

Leah Litman: I mean, absolutely. One solution is to protect voting rights so that you actually get state legislatures that are responsive to public opinion. Because if you have state legislatures that are actually accountable to the people, it’s much more difficult to pass laws that lack popular support. Second possibility is to elect more Democrats so you can actually cross the thresholds for the filibuster in the Senate, and passing legislation in the House. And that legislation doesn’t have to end at federal statutory protections for abortion rights. It can also go beyond that and limit the Supreme Court’s power to hear those cases or expand the size of the Supreme Court. All of those things would do a lot to actually ensuring access to abortion.

 

Gideon Resnick: Well, thank you so much again. Leah Litman is the co-host of Crooked Media’s Strict Scrutiny. They have a special episode that is out on the pod where they go into even more depth about all of this. Thank you so much again for your time, Leah. We really appreciate it.

 

Leah Litman: Thanks for having me.

 

Priyanka Aribindi: We will keep talking about this in upcoming episodes. We’ll cover the political implications as well as hear from abortion rights activists and more. And remember, the Supreme Court doesn’t issue its final rulings until as early as next month.

 

Gideon Resnick: Yeah, in the meantime, because this is such a monumental story, we do want to hear from you. How important is Roe v Wade to your own health care? What is the personal impact on you if it is overturned? You can head over to Instagram where you can tell us your story. We’ll share some of them in the coming weeks. And of course, if you’d like to stay anonymous, please do let us know that as well.

 

Priyanka Aribindi: Yeah, please share. We’d love to hear from you. And check out our show notes where we have links. You can get involved. You can donate and do more ahead of a final ruling that will be coming down. That is the latest for now. We will be back after some ads.

 

[ad break]

 

Gideon Resnick: Let’s wrap up with some headlines.

 

[sung] Headlines.

 

Gideon Resnick: In the Ukrainian city of Mariupol yesterday, Russian forces stormed the steel mill where the region’s last pocket of resistance had taken shelter for weeks. This happened shortly after the U.N. and Red Cross evacuated about 100 civilians who sought refuge there, but roughly 2,000 Ukrainian fighters, as well as a few hundred more civilians, remained. U.S. Secretary of State Antony Blinken said the steel plant had been hit by shelling and rockets, and a Ukrainian military official said two civilians were killed and ten more were wounded. Meanwhile, the U.S. State Department announced yesterday that Russia wrongfully detained WNBA star Brittney Griner. Russia has held Griner since February on drug charges, claiming that she possessed vape cartridges with hashish oil while traveling through Moscow. Griner supporters reportedly worried about her case escalating into a political issue in light of the current tensions between the U.S. and Russia, but in a statement, the State Department said it would use its diplomatic resources to, quote, “work to have her released” although it did not explain why it was making this determination now.

 

Priyanka Aribindi: Yeah, we’ve talked about this before on the show. This really doesn’t make much sense to me because the State Department has also talked about this. Why are they making this distinction now? Seems like it’s been an issue for quite a while.

 

Gideon Resnick: Months, right.

 

Priyanka Aribindi: Anyways. Parts of India and Pakistan are in the midst of a brutal heat wave which has led to blackouts, school closures, damaged crops, and more. At least 1 billion people living in the area experienced temperatures of 104 degrees Fahrenheit or higher from Thursday through Sunday, with many seeing temperatures over 110 degrees. The past few months were two of the hottest on record for India and Pakistan. Increased demands on electricity have led to shortages in parts of India, where coal remains the main source of energy. The country has canceled passenger trains so that more cargo trains can supply power plants with coal. The heat wave has also caused deaths as well at least 25 from heatstroke in the western state of Maharashtra alone since late March, but it’s difficult to determine the broader death toll accurately. It goes without saying that human created climate change is to blame for the severity of the heat wave. Dr. Chandni Singh, who is a lead author for the Intergovernmental Panel on Climate Change, or IPCC, said, quote, “This heat wave is definitely unprecedented. We have seen a change in its intensity, its arrival time, and duration. This is what climate experts predicted, and it will have cascading impacts on health.”

 

Gideon Resnick: Yeah, in a lot of different contexts, but especially in regards to climate, we have heard unprecedented far too many times.

 

Priyanka Aribindi: Really a word that I would love to stop hearing, honestly.

 

Gideon Resnick: Yeah. But turning now to the ways our planet is melting down in the US: severe drought in the West has led the Federal Government to delay releases of water in Lake Powell on the Colorado River. Located at the Arizona-Utah border, Lake Powell is the second largest reservoir in the U.S. after Lake Mead near Las Vegas, which it supplies directly. The action of keeping more water in Lake Powell rather than letting it flow downstream is actually – you guessed it – unprecedented –

 

Priyanka Aribindi: There we go again.

 

Gideon Resnick: – and speaks to the severity of water crisis. To put some numbers to it, Powell currently holds less than one fourth the amount of water it held when it was built and filled in the 1960s. Keeping water in Lake Powell will allow it to keep generating hydropower, at least for the next 12 months. The lake is a critical component of the Western power grid, but a longer-term solution is needed to allow the Colorado River to continue supplying 40 million people with water. For a more visceral example of what low water levels are doing, we can look to Lake Mead, where the drought recently turned up a dead body. Specifically a skeleton in a barrel which police believe was killed by gunshot between the mid-1970s and early 1980s based on its clothes and shoes.

 

Priyanka Aribindi: This is wild.

 

Gideon Resnick: A member of the Las Vegas police force told CNN, quote, “The barrel was likely dropped hundreds of yards off the shore back then, but that area is now considered the shoreline.” Police said it’s likely that more bodies will turn up as water levels dip lower. It is a compelling argument for guys who do organized crime to pitch in and help fight climate change. Those concrete shoes are really a thing of the past. We’ve got to do better, as people in organized crime.

 

Priyanka Aribindi: Yeah, I was expecting to be shocked on one hand by our third piece of unprecedented news. Didn’t know we were going to get into the fourth piece here, though, with the bodies. Really took a turn towards the end.

 

Gideon Resnick: Always does.

 

Priyanka Aribindi: Not a term that I liked.

 

Gideon Resnick: Never is.

 

Priyanka Aribindi: But wow. Trump’s inauguration was so lit that he is still settling ethics violations associated with it five years later. He is no longer the president but is still doing this. All right. Yesterday, the former president’s family businesses and his 2017 inauguration committee agreed to pay $750,000 to settle a lawsuit filed by DC’s attorney general, which alleges that the Trump International Hotel in Washington was overpaid – surprise – to host Inauguration events. Attorney General Karl Racine claimed the inauguration committee paid above market rates to Trump’s hotel, demonstrating that Trump’s mastery of the art of the deal did not slip when he became president. The inauguration was bankrolled using $107 million donated by corporations and individuals, many of whom later sought government contracts and other favors from Trump. In announcing yesterday’s settlement, Racine said, quote, “After he was elected, one of the first actions Donald Trump took was illegally using his own inauguration to enrich his family.” From our perspective, he took similar actions just about every single day for the next four years. For his part, Trump responded yesterday by noting that there was, quote, “absolutely no admission of liability or guilt” and described the lawsuit as, quote, “yet another example of weaponizing law enforcement against the Republican Party and in particular, the former president of the United States.” Okay then. Also in Trump World News, the recipient of Trump’s endorsement in the Ohio race for U.S. Senate, salt of the Earth, venture capitalist J.D. Vance seemed poised to win the Republican primary as we went to record last night. Representative Tim Ryan won the primary for Democrats.

 

Gideon Resnick: We are now at a point where we may be contractually obliged to at some point reference Hillbilly Elegy in all of the shows we do now at this point.

 

Priyanka Aribindi: Never going to read it, never going to watch it. We’d rather stab my eyes out with a fork.

 

Gideon Resnick: That’s two for two on hypotheticals of people who work here watching or reading Hillbilly Elegy. [exhales] Ohio. I could go on and on about my lovely state, but there’s only so many hours in the day.

 

Priyanka Aribindi: It happens to every state.

 

Gideon Resnick: Yes. Live long enough to see all of your home states become the villain. And those are the headlines. One more thing before we go. Remember that Strict Scrutiny has a special episode out now that is dedicated to breaking down all of this news about abortion and the Supreme Court. You can listen wherever you get your podcasts.

 

Priyanka Aribindi: Yeah, it’s a really good one, so do not miss it. Also, check out our show notes where you can find links to resources on how you can get involved, learn more, and donate to over 80 abortion funds who need your help.

 

Gideon Resnick: That’s all for today. If you like the show, make sure you subscribe, leave a review, stay away from strange barrels in Vegas, and tell your friends to listen.

 

Priyanka Aribindi: And if you’re into reading, and not just one-star reviews on the former Trump Hotel in Washington like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Priyanka Aribindi.

 

Gideon Resnick: I’m Gideon Resnick.

 

[together] And come on WAD, barrel skeleton!

 

Priyanka Aribindi:  Love to hear your story.

 

Gideon Resnick: I have a lot of questions. Namely, what was he wearing that was so readily identifiable as ’70s or ’80s? My second question is who knew that people actually do stuff people into barrels? That’s new to me as well.

 

Priyanka Aribindi: What do we know? Nothing. We know nothing of this.

 

Gideon Resnick: What a day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Jazzy Marine and Raven Yamamoto are our associate producers. Our head writer is Jon Millstein, and our executive producers are Leo Duran and me, Gideon Resnick. Our theme music is by Colin Gilliard and Kashaka.