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The End of Roe v. Wade: Leaked Opinion Shows Supreme Court Is Set to Overturn Abortion Rights

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The Supreme Court has voted to overturn Roe v. Wade, according to a leaked draft opinion published by Politico. In it, Justice Samuel Alito writes for the majority that “Roe was egregiously wrong from the start.” We speak to two reproductive rights advocates: attorney Kathryn “Kitty” Kolbert, who argued the landmark 1992 Planned Parenthood v. Casey case, and law professor Michele Goodwin, author of “Policing the Womb.” The reproductive rights movement must not only stir public outcry and depend on the courts to protect these rights, but also focus more on state-level elections to vote out anti-abortion politicians, says Kolbert. Where Roe v. Wade didn’t go far enough, passing legislation such as the Women’s Health Protection Act can enshrine abortion rights, says Goodwin.

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

AMY GOODMAN: The Supreme Court has voted to overturn abortion rights, this according to a leaked Supreme Court draft opinion published Monday night by Politico. The document is an internally circulated majority draft opinion that was written by Justice Samuel Alito that would strike down Roe v. Wade, the landmark decision that’s guaranteed federal constitutional protections of abortion rights for half a century. In the draft, Alito also moves to overturn Planned Parenthood v. Casey, a 1992 decision credited with upholding Roe v. Wade. Alito writes, quote, ”Roe was egregiously wrong from the start. … We hold that Roe and Casey must be overruled. … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” unquote.

The leaked opinion suggests five conservative justices would vote to overturn Roe, Justice Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joining Alito. CNN reports Chief Justice John Roberts does not want to completely overturn Roe v. Wade, but he would vote to uphold the Mississippi law that bans abortion at 15 weeks of pregnancy.

If Roe is overturned, 13 states have so-called trigger laws that would make abortion illegal as soon as the court rules. They’re among the more than 26 states the Guttmacher Institute says are likely to ban abortion soon as possible: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Montana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming.

For more, we’re joined by two guests. Michele Goodwin is the chancellor’s professor at University of California, Irvine, founding director of the Center for Biotechnology and Global Health Policy, author of Policing the Womb: Invisible Women and the Criminalization of Motherhood. Also with us, from Portland, Oregon, is Kathryn “Kitty” Kolbert, longtime public interest attorney who argued the landmark case of Planned Parenthood v. Casey before the U.S. Supreme Court in 1992, which is credited with upholding Roe v. Wade. She’s co-founder of the Center for Reproductive Rights and co-author of Controlling Women: What We Must Do Now to Save Reproductive Freedom.

Well, we’re going to go there in a second, Kitty Kolbert. We’re going to begin with you and just get your response to this astounding, at every level, unprecedented release of a first draft of a decision, in this case one that apparently was written in February and circulated to the court, that would overturn Roe v. Wade, written by Samuel Alito. Can you respond to what you’ve read?

KATHRYN KOLBERT: Well, it’s a stunning opinion. And let me just say, I fully expected that this court would overrule Roe and Casey. That is not in contention. There has always been, since the confirmation of the Trump justices, the very strong likelihood that this would happen. But I think that the breadth of the decision, the way that they have articulated their views on this issue are so disturbing on a whole host of levels.

First and foremost, they leave open the possibility of not just eradicating abortion rights but of eradicating all of the rights in which women have depended — reproductive rights such as the ability to use contraception, the ability to be sexual with somebody of the same sex, the ability to marry for same-sex couples — because what they say is the 14th Amendment does not include a right to privacy and that unless there is a long history of support for those rights, it will not be considered within the panoply of protected interests. That means that any rights, such as gay marriage, which has been undermined by state laws for centuries prior to the ruling last decade, are in jeopardy. And that’s extraordinarily disturbing.

But let me just add one more thing, Amy, which is this is really disturbing for women on all levels. First and foremost, women immediately facing unintended pregnancies, they need to know that abortion is still legal in many places, all except Texas and perhaps Oklahoma, but the day is coming that it soon will not be.

And second, I think we need to figure out a way to make sure that all of the women in the country who are so angry about this take political action, because the only way to respond is to vote out all of the Republicans who have made this happen, at the state level, at the federal level, at every level of our government. And we need to do that as soon as possible. There are elections this month all the way through November.

JUAN GONZÁLEZ: And, Kitty Kolbert, we’ve listed all of the states that are ready to act as soon as this decision came down, but what about those states that would seek to, in one way or another, protect abortion for women? What do you see happening there?

KATHRYN KOLBERT: Well, I think that’s very good. It’s important for us to realize, however, that, geographically, those who oppose abortion will stretch from, say, Georgia all the way west to Texas and from Idaho all the way south to the Mexican border. And therefore, the states that are protective are too often on the coasts or far away from the places in which women will be unable to obtain procedures. And so, the important thing is, women are going to have to travel long, long distances, even if there are safe access points, and, second, that the ability to travel is limited to those people who have means.

And so, yes, it’s great that California and New York and Illinois and a variety of other coastal states are protecting women’s rights. I hope more and more will do so. But the important thing is, it is the women who are least able to travel, the women who are low-income, who are young, who are living in rural areas, who don’t have access to public transportation, who are, you know, for any number of reasons, unable to leave their jobs for three or four or five days in order to get across the country to exercise their reproductive rights, these women, the most vulnerable, who are too often women of color — let’s be clear here — because they suffer from discrimination in the healthcare system, those women are significantly disadvantaged. And we need to make sure, A, that we help them in every way we can, but, B, that we turn around the politics in the bad states so that this no longer happens.

JUAN GONZÁLEZ: I’d like to bring into the conversation, as well, Michele Goodwin, chancellor’s professor at the University of California, Irvine. Welcome to Democracy Now!, Professor Goodwin. Your response to this leaked decision of the Supreme Court?

MICHELE GOODWIN: First of all, thank you so much for having me back on the show.

This is unprecedented that there would be a leaked document coming from the United States Supreme Court. But let’s be clear that these are incredibly unprecedented times that we find ourselves in in the United States, with an insurrection to overturn the results of an election last year and now with the Supreme Court seeking to potentially gut Roe v. Wade and Planned Parenthood v. Casey.

This is a first draft of an unpublished opinion, so we don’t actually know what will happen. But very likely, given this draft, we will see the undoing of Roe v. Wade. And it’s important that we understand that with the undoing of Roe v. Wade, just what’s at stake in the United States for our democracy and the rule of law. And if we look at this within the context of our democracy and the rule of law, you see the potential for the Supreme Court to do a bit of cherry picking around equality issues, around privacy issues, about matters that relate to autonomy with people’s bodies.

You also see the Supreme Court seeking to skirt empirical data that has emerged in years since Roe v. Wade and Planned Parenthood v. Casey. What is crystallized is that the World Health Organization has said that an abortion is as safe as a penicillin shot; an abortion, a surgical abortion, one of the safest medical procedures that a person could have. But even more than that, when we look at rates of maternal morbidity and mortality in the United States, then this opinion is absolutely shocking, as shocking and horrific as we see the state-level anti-abortion laws. A woman is 14 times more likely to die in the United States by carrying a pregnancy to term than by terminating it. And so, if we fail to include that in our conversation, then we’re missing what essentially is a death sentence for many women across the United States and girls.

And let me add one layer to that. For Black women, they’re are three-and-a-half times more likely to die due to maternal mortality in the United States than their white counterparts. That is a national figure. That actually doesn’t tell us all that we need to know when we actually look at states like Mississippi, Texas, Alabama, Louisiana, where Black women may be five times, 10 times, even 17 times more likely to die in certain cities and counties in those states than their white counterparts. And so, this is not just a political performance or kind of partisanship, way beyond ideology, that we see coming from the Supreme Court. What we see is something that is very graphic in terms of what it will illustrate in terms of maternal morbidity and mortality.

And let me add one last piece to that, as well, is that this is not something that is conjecturing. This is actually coming from data from the CDC and from the states’ departments of health and human services in those states. This is already what is taking shape, given the anti-abortion measures that have taken place in the last 10 years in those states. It’s glaring, it’s alarming, and this draft opinion shows just how egregious it is.

AMY GOODMAN: Professor Goodwin, I want to ask you two questions. One is, this is so unprecedented. I mean, in the court’s history, has there ever been a release of a draft? And this is such a significant decision. But it has not come out. Is it conceivable, given what has happened, that one of these justices might change their mind? That’s number one. And number two is, this is the judiciary. I’m looking at a tweet of Nina Turner, who’s running for Congress in Ohio; today, the election is taking place. She says, “Protecting abortion rights is not a midterm pitch—Democrats have the power now. We have the majority in Congress and we have the White House. Instead of drafting fundraising emails tonight, our elected leaders should be in DC voting to codify Roe & getting rid of the filibuster,” so making Roe v. Wade the law of the land legislatively. If you could answer both?

MICHELE GOODWIN: Yeah. So, let me start with the second part, which is that making Roe the law of the land. The Women’s Health Protection Act is the legislation that has been promulgated in Congress. It’s gone through the House, but it’s not been able to make its way through the United States Senate. It would codify Roe. And I should just say that for those who really care about not just reproductive rights but reproductive justice, Roe doesn’t actually go far enough, but this would be incredibly important, the passage of the Women’s Health Protection Act. It is sound legislation. It is important that that legislation is enacted, absolutely.

But to your first question, which is whether there might be a justice that could potentially change his or her mind, there is the potential for that to happen. After first drafts of opinions, there are times in which there are justices that are moved to the other side of the vote. Will that happen with these particular justices? You know, Amy, I think it’s important that we add to the conversation here that Justice Alito authored another important decision that was extraordinary, and it was the Hobby Lobby case. And in that case, Justice Alito also did a similar dance, which was to say that it’s only about this particular decision; we can’t look at it beyond. And what that was was striking down part of the Affordable Care Act, essentially, saying that organizations, for-profit companies could have religious identities and that those religious identities would allow them to reject part of federal law, which is to make available through their insurance programs contraception. There were a series of companies that said that “we find ourselves to be religious,” which was something that the Supreme Court had never upheld before, and that, secondly, “we conflate contraception with abortion,” and therefore sought that the Supreme Court would essentially agree to the same. And the Supreme Court did, in an opinion that was written by Justice Alito. And Justice Alito said, “Well, this only applies to companies that have these kinds of religious views. It doesn’t expand beyond this. So a company can’t say, 'We have religious views, and we oppose,' let’s say, 'blood transfusion, and therefore deny people who work for us from getting blood transfusions.'” So, a justice could change their mind, and it is possible that the Women’s Health Protection Act could be enacted, but neither of those things are happening today.

JUAN GONZÁLEZ: I’d like to go back to Kitty Kolbert to ask you — you wrote an opinion piece in The New York Times last year predicting the likelihood of Roe v. Wade being overturned by the court, but you wrote, quote, “The end of Roe need not herald the end of an era of reproductive freedom. It may instead launch a new strategy that protects the fundamental human right to decide whether to have children and raise them in safety and dignity.” Could you expand on that and what you meant there in terms of how the movement needs to move forward?

KATHRYN KOLBERT: Sure. So, you know, our movement for many, many years has depended on the courts, and has depended particularly on the U.S. Supreme Court, to protect these rights. But our opponents have focused on the legislative arena, have focused on electing anti-abortion legislators at the state level and in Congress. And, yes, we can turn this around. How? By electing people who support women’s equality, who support reproductive justice and rights, and who are committed in every single way to ensuring that women have access to safe, legal abortion and a whole panoply of reproductive freedoms that are necessary to protect their health.

What does that mean? It means that we need to focus on electing champions for choice. And we can only do that by hard work. It took our opponents almost five decades to get where they have gone. But let’s not forget that this was their strategy. And we, too, can turn it around. But that means that every single person listening has to commit themselves to working legislatively to flip, from red to blue, state legislators and congresspeople, because until Congress is able to act, until the Senate has a — either changes the filibuster rule or elects 60 members who are with us on this issue, we’re not going to see that kind of change on a national level. But we can see change at the state level. We can beef up the states that are purple and make them blue. We can make sure we elect pro-choice governors in many states who can veto bad legislation. It is too late to make changes in many, many places right now, but there is an election every six months in this country, and we need to be active and involved in those elections to make these changes.

AMY GOODMAN: I mean, there has been a very serious question about whether Democrats, progressives will be particularly galvanized in the midterm elections. I mean, this certainly could be a big deciding factor, to say the least. But, Kitty Kolbert, I want to put that same question of the removing the filibuster to you, about the possibilities right now as opposed to the long term. We know that both Manchin and Senator Sinema have said they are opposed to that, but do you think there is a possible move in that direction? You have Democrats controlling the presidency, the Senate and the House.

KATHRYN KOLBERT: Well, I would hope so. If there’s ever an opportunity to have them change their mind, this would present just one. But, first of all, it’s not going to happen without a huge public outcry. That means calling senators from your state and every other state as quickly and as often as possible and make sure they hear our anger. But we also can’t forget that politicians at all levels of our system vote on these issues and are controlled, in the most part, by our votes, and so we need to send the message not just to the Senate but to those state legislators who have bought into the Republican strategy, and say, “It’s time for you to find a new job.” There’s lots of gubernatorial races across this country, in Georgia, in Texas. One of the best messages we could send is to retire the governors in those states who are Republican, who are anti-choice, and say to the country, “We are able to elect our people, and we think this issue is just too important to ignore.”

AMY GOODMAN: And what about the significance of Chief Justice Roberts? What does it mean that he would uphold the ban but was not willing to overturn Roe v. Wade? Now, again, this is a draft. Things could change. This hasn’t been released. The final decision could come as late as the beginning of July.

KATHRYN KOLBERT: Well, I would say, Amy, that, A, the chief justice is irrelevant. It only takes five votes, remember. Five is the key number. But, more importantly, the only way that the chief justice could uphold this ban is to say that states have the ability to define viability on their own. And that means that the next week the next state is going to say the ban starts at 14 weeks or 13 weeks or 12 weeks. There is no way, under the current law, for the chief justice to uphold a 15-week ban without so undermining Roe and Casey that they are essentially meaningless. So, I really think that’s a red herring. It’s not something that’s true to the way the law works. And the rights we know are really controlled by the five ultraconservative justices, and I don’t see any wiggle room there. These are not people who are concerned about women’s health and women’s equality. They have an agenda. They’ve been put on the court to enact their agenda, and that’s what they’re doing.

AMY GOODMAN: Kathryn “Kitty” Kolbert, we thank you so much for being with us, lawyer who argued the landmark case of Planned Parenthood v. Casey before the U.S. Supreme Court in 1992, credited with upholding Roe v. Wade. She’s co-founder of the Center for Reproductive Rights, co-author of Controlling Women: What We Must Do Now to Save Reproductive Freedom. And thanks also to Michele Goodwin, the chancellor’s professor at University of California, Irvine, author of Policing the Womb.

Next up, as President Biden seeks $33 billion more for Ukraine, we look at the dangers of U.S. military escalation with Medea Benjamin of CodePink and George Beebe of the Quincy Institute, former head of Russia analysis at the CIA. He’s also a former adviser to Vice President Dick Cheney. Stay with us.

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