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Conservatives on Supreme Court Prepare to “Gut Roe v. Wade” as State Abortion Bans Multiply

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Anti-abortion bills are sweeping the U.S., with the Guttmacher Institute reporting that 82 restrictions have been introduced in 30 states in 2022 so far. On Wednesday, Idaho signed into law a six-week abortion ban, and lawmakers in Oklahoma passed a near-total ban on abortions — each modeled after a Texas “bounty hunter” law that allows private citizens to sue abortion providers. The U.S. Supreme Court is expected to rule on Dobbs v. Jackson Women’s Health Organization later this year, in which a Mississippi abortion facility is challenging the state’s restrictive abortion law. If Ketanji Brown Jackson becomes the new justice, will it affect the court’s ruling? “Abortion rights don’t fall within that framework of constitutional rights that the Supreme Court feels that it has an obligation to uphold,” says Imani Gandy, senior editor of law and policy for Rewire News Group. “It is presumed that Roe is going to be reversed in a couple months,” says Dahlia Lithwick, senior editor and senior legal correspondent for Slate.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: I want to go to the hearings dealing with abortion. Republican senators have tried to portray Supreme Court nominee Ketanji Brown Jackson as hostile to anti-abortion views. Republican Senator John Kennedy on Tuesday asked Judge Jackson when life begins.

SEN. JOHN KENNEDY: Boy, time flies. When — when does life begin, in your opinion?

JUDGE KETANJI BROWN JACKSON: Senator, I don’t know.

SEN. JOHN KENNEDY: Ma’am?

JUDGE KETANJI BROWN JACKSON: I don’t know. I don’t —

SEN. JOHN KENNEDY: Do you have a belief?

JUDGE KETANJI BROWN JACKSON: I have personal, religious and otherwise, beliefs that have nothing to do with the law in terms of when life begins.

SEN. JOHN KENNEDY: Do you have a personal belief, though, about when life begins?

JUDGE KETANJI BROWN JACKSON: I have a religious view —

SEN. JOHN KENNEDY: Religious belief?

JUDGE KETANJI BROWN JACKSON: — that I set aside when I am ruling on cases.

AMY GOODMAN: So, that was Senator Kennedy Tuesday. This is Republican Senator John Cornyn questioning Judge Brown Jackson on Wednesday.

SEN. JOHN CORNYN: No one suggests that a 20-week-old fetus can live independently outside the mother’s womb, do they?

JUDGE KETANJI BROWN JACKSON: I don’t know.

SEN. JOHN CORNYN: I mean, you need — the child will need to be fed or sheltered and all the other essentials to sustain human life. So there’s no suggestion that after 20 weeks that a child can live independently, correct?

JUDGE KETANJI BROWN JACKSON: Senator, I’m not a biologist. I haven’t studied this. I don’t know.

SEN. JOHN CORNYN: You don’t know whether an unborn child could live outside the womb at 20 weeks’ gestation?

JUDGE KETANJI BROWN JACKSON: What I know is that the Supreme Court has tests and standards that it’s applied when it evaluates regulation of the right of a woman to terminate their pregnancy. They have — the court has announced that there is a right to terminate up to the point of viability subject to the framework in Roe and Casey. And there is a pending case right now that —

SEN. JOHN CORNYN: Right.

JUDGE KETANJI BROWN JACKSON: — is addressing these issues.

AMY GOODMAN: At the same time as the hearing yesterday, Idaho became the first state to enact a law modeled on Texas’s near-total ban on abortions. The Republican governor signed the bill Wednesday, which bans abortions after around six weeks of pregnancy and allows anyone biologically related to the fetus to sue abortion providers if they defy the law. The only exceptions are in case of medical emergency, rape or incest, but the latter two require the patient to have reported a crime to police. Also Wednesday, Oklahoma passed a total abortion ban that would be enforced by “bounty hunter”-style lawsuits. Imani Gandy, if you can talk about how Judge Jackson responded and how this is all happening as this wave of anti-abortion laws are passing across the country?

IMANI GANDY: I think Judge Jackson’s response was perfectly appropriate. There’s no indication that she has ruled extensively on abortion rights cases. The Supreme Court itself declined to determine, to make an assessment as to when life begins, specifically declined to do that in Roe v. Wade. I think it’s a bit absurd for these Republican senators to imply that she is somehow hostile to anti-abortion views, when the criteria for Republican-nominated potential Supreme Court justices is that they essentially vow that they will overturn Roe v. Wade. Now, certainly in the hearing room, they won’t say something like that. You know, then-Judge Amy Coney Barrett wouldn’t say something like that. They’ll say something like, “It’s not appropriate for me to opine on legal issues that are before the court right now,” or “It’s not appropriate for me to opine on how I would rule in a hypothetical case,” because, as we know, justices are ostensibly beholden to precedent and beholden to the rule of law.

But as we’ve seen over the last six months now, abortion rights don’t fall within that framework of constitutional rights that the Supreme Court feels that it has an obligation to uphold. Roe has been functionally void in Texas for going on six months. And as you mentioned, there are states that are falling like dominoes, that are rushing to enact these bounty hunter-style bills which permit literally anyone in the world to snitch on someone who’s either getting an abortion or who is helping someone get an abortion, abortion funds and the abortion access pipeline — clergy people, counselors, social workers, lawyers. All of these people are being entrapped by this bounty hunter system, and it is chilling constitutional rights. And the Supreme Court right now doesn’t seem to care about that. And you can tell that it is very upsetting to someone like Sonia Sotomayor, who has written, I think, four dissents now, each increasingly more outraged than the other, because the Supreme Court is ignoring its own precedent.

And it seems as if, for example, the 5th Circuit Court of Appeals, Judge Edith Jones, during one of the hearings in the 5th Circuit, basically said, “Well, shouldn’t we just wait to see what the court does on Dobbs?” says? And that’s not the way — that’s not the way it works. No, you shouldn’t wait to see what the court does on Dobbs, which is the Mississippi case challenging Mississippi’s 15-week abortion ban. What you do is you uphold the law as it’s written on the day that you’re supposed be hearing an issue. That means Roe v. Wade is still the law of the land. It may not be in two months, but it is now.

So, Judge Jackson’s response was appropriate. And had she been a Republican-nominated justice, or judge — excuse me — Republicans would have been happy for her to say, “I’m not going to opine,” because they know, in their back pocket, when it comes time to decide Roe v. Wade, Amy Coney Barrett and Brett Kavanaugh and Neil Gorsuch, all of these justices that Trump appointed, who were required in advance to have anti-choice views, they’re all fine. They’re all sitting on the judge just waiting for their opportunity to essentially gut Roe v. Wade.

NERMEEN SHAIKH: Dahlia, could you also respond to that and the fact that you’ve said that Senate Judiciary Committee Democrats did not connect the hearing to what’s going to be a catastrophic series of progressive losses at the Supreme Court? Talk about what other progressive losses, in addition to reproductive rights, you’re referring to.

DAHLIA LITHWICK: I think the single most important thing that I saw in the questioning around abortion was how little there was. And to the extent there was questioning around abortion, it presumed, as you just heard, that abortion is already over, that Roe v. Wade has been nullified, and that was assumed. And then the questions really moved on to other things within that bucket of privacy rights and family autonomy rights, to sort of all the substantive due process, unenumerated rights.

And the questions we were getting were really chilling, John Cornyn raising the prospect of maybe doing away with Obergefell, the marriage equality decision. All of the rights, including contraception, in that bucket that are protected by Roe, I think, are on the table now. And it’s why you were hearing talk this week — inside the chamber, you’re hearing talk about maybe Griswold v. Connecticut, the right to contraception within a marriage, maybe that should be revisited. Outside the chamber, we were hearing that maybe Loving v. Virginia, the right to have interracial marriage, also should be left to the states.

So I think we need to be really clear that the target has moved. It is presumed that Roe is going to be reversed in a couple months — and I think that’s fair — but also that everything that comes with it is now fair game. And that’s why you’re hearing about marriage equality. It’s why you’re hearing about birth control.

AMY GOODMAN: Dahlia, we only have 15 seconds, but do you know what’s happening with Clarence Thomas? He’s the longest-serving member of the Supreme Court? He has been now hospitalized for seven days — they said he was going to come out days ago — with an unspecified infection.

DAHLIA LITHWICK: The court has refused to answer questions. We know that they said on Sunday he should be out within two days. He missed arguments again on Wednesday. The court will not give us any more information. It seems that he’s still not participating in arguments. And that’s all we know.

AMY GOODMAN: Dahlia Lithwick, we want to thank you for being with us, Slate.com senior editor, senior legal correspondent, and Imani Gandy, senior editor of law and policy for Rewire News Group.

And that does it for our show. Oh, and some exciting news: Democracy Now!'s YouTube channel has reached a major milestone: 1 million subscribers. Thank you to all of our viewers. We hope more of you will check out our YouTube channel and spread the word. I'm Amy Goodman, with Nermeen Shaikh.

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