Emergency Episode: Roe Is Overturned

The Supreme Court has released the long-awaited Dobbs v. Jackson Women's Health Organization decision. The news is bad. Ruling in favor of Mississippi, the Court allows the state to ban nearly all abortions after 15 weeks. The opinion is written by Justice Samuel Alito, and is largely the same as the opinion that was leaked earlier this year. Alito writes, "The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives." Roe v. Wade, precedent that has guaranteed privacy and bodily autonomy for half a century, is dead, imperiling the access to reproductive healthcare for millions of people. We know this has been a hard week, but what makes it a little lighter for us is knowing that you all are out there. Thanks for being a listener.

Where we are sad all the time...

0:00:00.1 Speaker 1: We will hear argument this morning in case 19-1392 Dobbs versus Jackson Women's Health Organization.


0:00:12.4 Rhiannon: Hey, y'all, this is Rhiannon. On this emergency episode of 5-4, Peter, Michael and I are talking about the overruling of Roe versus Wade. In Dobbs versus Jackson Women's Health, an opinion which dropped yesterday, a six to three conservative majority ruled that the Constitution does not protect the right to an abortion.

0:00:31.5 Speaker 3: Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They poison the law.

0:00:43.4 Rhiannon: We've been saying that this was coming for a long time, and we take no pleasure in being right. I think that as you listen to this emergency episode, you'll hear exhaustion and disappointment in our voices. Many of you come to 5-4 to hear righteous anger, full-throated indignation at the state of affairs at the Supreme Court. Today, we are mourning the state of affairs. On this episode, we give you our angle on the case, the response by the Democratic Party, and what we think is coming next regarding reproductive rights and the legal mazes this decision has created. To be honest, there's a little despair there too. You are listening to three people who have followed the Supreme Court and its failings weekly for more than two years. We are tired. But we also know that the fight doesn't end here. It's only just beginning. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:42.5 Peter: Welcome to 5-4, where we are sad all the time.

0:01:46.6 Rhiannon: Yeah.

0:01:48.0 Peter: I am Peter. I'm here with Rhiannon.

0:01:53.9 Rhiannon: Hi, hello.

0:01:56.0 Peter: And Michael.

0:01:56.7 Micheal: Hey, everybody.

0:01:56.8 Peter: I didn't have the energy for a metaphor, so...

0:01:57.9 Rhiannon: That's fine.

0:01:58.1 Peter: We're just gonna go straight into talking about Dobbs v. Jackson Women's Health, the opinion that has now officially overturned Roe v. Wade, making this technically an emergency episode.

0:02:12.2 Rhiannon: Yeah.

0:02:13.9 Peter: Although as we've discussed recently amongst ourselves, we're at a point where a lot of our episodes reflect some level of emergency.


0:02:21.8 Rhiannon: Yeah.

0:02:22.8 Micheal: Yes. Yeah.

0:02:23.2 Rhiannon: It's just these crazy times we live in right now.

0:02:26.0 Peter: So as I'm sure everyone listening knows, in the early May, a draft of the majority of opinion overturning Roe written by Justice Alito was leaked to the public. There was much discussion about whether the majority would hold, whether the opinion would materially change, etcetera, etcetera, but in the end, almost nothing changed, and the final majority opinion is substantively identical to what was leaked.

0:02:51.9 Rhiannon: Yeah.

0:02:53.1 Micheal: I do wanna note for a second here that law professors and clerks and people or whatever, when they tell you about the Supreme Court opinion-writing process, they'll talk about how they circulate drafts, and then they read each other's drafts and they comment on them and blah, blah, blah, and then they see the concurrences and dissents and respond to them, and it sounds very deliberative and very cooperative. And I don't know, maybe that's the case in some opinions, but it's worth noting that this shit looked almost identical.

0:03:22.9 Peter: Yeah.

0:03:23.2 Rhiannon: To the draft yeah.

0:03:24.3 Micheal: The final draft looks a lot like the original draft, and I do wonder, to a degree, that's just like some self-important... Like myth-making, that they already know what they wanna say, at least in like hot button issues, they know what they wanna say and they're gonna say it, and maybe they'll throw in a few paragraphs being like, "The dissent is this, but blah, blah, blah," but it's functionally the same.

0:03:47.9 Rhiannon: Yeah.

0:03:50.1 Peter: Alito writes the majority, there's a concurrence from Kavanaugh and another from Roberts, and another from Thomas, and a joint dissent by the three liberal justices. So, our episode published after the majority opinion leak goes through its reasoning in-depth, but we can go over the basics again. The 14th Amendment says that the government cannot deprive you of life, liberty or property without due process of law. What that means has been the subject of some controversy, but the court's precedent is that it means that certain fundamental liberties and rights are protected by the Constitution, even if they are not specifically enumerated in the Constitution. In Griswold v. Connecticut in 1966, the court held that the clause protects a person's right to privacy which includes their right to use contraception. And then in Roe v. Wade in 1973, the court held that the right to privacy includes the right to obtain an abortion. And what the court says here in overturning Roe is that that clause of the 14th Amendment only protects rights and liberties that have a deeply rooted tradition in our law. So the majority is saying, "Look, there's no long tradition of protecting abortion rights, and therefore the right is not protected under the 14th Amendment."

0:05:18.0 Peter: So again, we went through this in a bunch of detail, but our basic position is this, if your understanding of the scope of constitutional rights is that they should be limited to the scope they had at the time of their ratification, you are advocating for a government guided by the idea that women, minorities, and poor people are second class citizens.

0:05:38.0 Micheal: Yes, that's right.

0:05:39.3 Peter: That's not like some lefty spin. That's the only conclusion that can be drawn. The government at the time of the founding and at the time of the ratification of the 14th Amendment was one that explicitly provided women and minorities with fewer rights than white men. If you believe that our understanding of liberty under the Constitution should be predicated on the laws of that era, you are seeking to enshrine that bigotry into our modern law.

0:06:07.2 Rhiannon: That's exactly right. And I think what's important too to point out about the majority is they base this reasoning on a very narrow definition of what the right being protected is. Right? So they're saying, "Yeah, back when the 14th Amendment was passed, there was no general broad protection of the right to an abortion." Well, sure, but Alito is brushing aside that really what cases like Griswold and Roe v. Wade found was that the Constitution and the 14th Amendment protect these ideas of personal autonomy, of dignity, of equality interests, right? And what flows from that must be some sort of right to privacy, and what flows from that is the right to contraception, the right to an abortion, the right to make personal private decisions on your own as a free person. And that narrow definition of what Alito was saying is the right here, just a right to an abortion not being protected by the Constitution. That is in and of itself sort of arbitrary, is absolutely judicial activism, is absolutely a policy choice, and that completely misses what the dissent and what liberals and pro-choice advocates say about what this right really means.

0:07:25.9 Micheal: Yeah, and there's a particular line I wanted to mention in their majority opinion that I think is really sort of illustrates what's going on here, and it's when Alito is describing the history of abortion rights in this country in Roe v. Wade, and he describes Roe v. Wade. This is what he says, he says, "It imposed the same highly restrictive regime on the entire nation." And so I wanna... [chuckle] I wanna unpack this for a little bit, because if you are a pregnant person who wants to get an abortion, being prevented from doing so is restrictive.

0:08:08.1 Rhiannon: Right.

0:08:09.1 Micheal: And a Supreme Court decision that allows you to do so is liberatory.

0:08:14.1 Rhiannon: Right.

0:08:14.3 Micheal: Right? So when he says, "Roe v. Wade imposed a restrictive regime," the question is, "Who's being restricted?"

0:08:24.0 Rhiannon: Right. What regime? On whom?

0:08:26.4 Micheal: Right. Who's being restricted here? And it's not millions of pregnant people, it is a handful of mostly white, mostly old men who want to control women's bodies.

0:08:43.2 Rhiannon: Yeah.

0:08:43.3 Micheal: That who's being restricted here, and that's who he's prioritizing, that's who he's centering, and their political constituency, or a bunch of fucking moralizing theocratic assholes.

0:08:56.0 Rhiannon: That's right.

0:08:57.0 Peter: There's literally a point at which... And we talked about this before, but Alito is citing legal theory from the 13th century, which is...

0:09:04.9 Micheal: Yes. [chuckle]

0:09:05.3 Peter: Insane in its own right, but notably follows a day after the court said in Bruen, the gun rights case that struck down New York's gun permitting regime, said in that case that events predating the Constitution by too much shouldn't be relied on in interpreting it.

0:09:24.9 Micheal: Right.

0:09:25.8 Peter: And at this point, it feels like pretty trite to point out hypocrisy.

0:09:29.8 Micheal: Yes.

0:09:30.3 Peter: We're a little bit beyond that. But it's important to remember, there's no principle here.

0:09:33.9 Micheal: No.

0:09:34.1 Peter: Right? They're just making shit up...

0:09:35.2 Rhiannon: Yeah.

0:09:35.3 Peter: As they go.

0:09:36.3 Rhiannon: Completely arbitrary. Yeah.

0:09:38.4 Micheal: Yeah.

0:09:39.1 Peter: And the leaked opinion contained all sorts of arguments that seemed sort of half-baked and shitty, and so people assume that they'd be edited out in the final [chuckle] version, but just about all of them made it in.

0:09:51.3 Rhiannon: They're still there.

0:09:51.4 Micheal: Yeah.

0:09:52.8 Peter: Arguments that imply that abortion providers are doing racist eugenics still in, arguments that rely on the work of Sir Matthew Hale, who died in 1676 and also fully believed in witchcraft, a real fact about him, still in. Perhaps the leak made him feel pressure not to edit, and that's what's happening here, right? But also perhaps he's just a big, dumb piece of shit, a real stupid fuck. I think that's on the table as well.

0:10:23.2 Rhiannon: [chuckle] Absolutely, it is.

0:10:24.1 Micheal: Yeah, yeah.

0:10:25.4 Peter: I did notice a couple of changes. One aesthetic change was that the original draft had language where it said like, "There is no basis in our Constitution for a right to abortion, zero, none," which I remembered mostly because even by Alito's standards, it's like a little bit message board argument kinda vibes.

0:10:44.2 Micheal: Yeah.

0:10:45.1 Peter: And then it was gone in the draft, so I guess he was like, "Well, it's pretty embarrassing to write like this, so I'm gonna remove this." The only large substantive change that I caught was that mostly in response to the dissent, the majority continuously emphasizes the state's interest in protecting fetal life, which is notable, because it's potentially laying the groundwork in the event that the court ever wants to hold that not only is abortion not protected, but fetuses are people and therefore entitled to constitutional protection themselves. Other than that, though, pretty much the same opinion.

0:11:27.5 Micheal: Not to spell it out too much, but if fetuses are persons for the purpose of the 14th Amendment, then their life is protected by the Due Process Clause, which would constitutionally forbid abortions.

0:11:41.8 Rhiannon: Right.

0:11:42.3 Micheal: Right?

0:11:43.0 Peter: Right.

0:11:45.4 Micheal: Except maybe in a few rare cases where the mother's life and health are balanced against the fetal life, so what he's doing there is pretty radical.

0:11:54.1 Peter: Yeah. So let's talk concurrences. And I think we have to start with Justice Brett Kavanaugh.

0:12:00.7 Rhiannon: Yeah. BK comes in swinging, or at least he thinks he comes in swinging, right? He is doing this thing throughout his concurrence where he's not releasing anything new, he's re-hashing some of the constitutional points from Alito's majority. But I also think... Is this what y'all think? I think that he thinks that he's sort of polishing up the majority opinion.

0:12:24.2 Peter: Yeah.

0:12:24.8 Rhiannon: And making it a little bit more clear and maybe even like...

0:12:29.2 Peter: Narrowing it.

0:12:31.0 Rhiannon: Narrowing it, right. But he's not. So let me give an example here, it's sort of a long quote, it comes from a couple different places, but he's just going on and on like this. So he says, "The issue before this court is not the policy or morality of abortion, the issue before this court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion, the text of the Constitution does not refer to or encompass abortion. The Constitution is neither pro-life nor pro-choice. The Constitution is neutral." [laughter]

0:13:04.2 Peter: This is literally just like undergrad level shit.

0:13:07.3 Micheal: Not even undergrad...

0:13:09.0 Peter: He's grabbing on to the most basic, baby's first legal argument here, which is just like, "Hey, we're not saying whether abortion is bad, we're just saying leave it up to the States. Let the States decide."

0:13:22.2 Rhiannon: He's not done, there's more, "Because the Constitution is neutral on the issue of abortion, this court also must be scrupulously neutral. This court does not possess the authority to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion." Shut the fuck up. Are you fucking Dr. Seuss bro?

0:13:44.2 Peter: That is the one thing he does though, in his concurrence that seems to create a little bit of friction with Alito where he's like... He's basically saying, "I wouldn't hold that there is a constitutional prohibition on abortion." Right?

0:13:56.6 Rhiannon: Right.

0:13:58.6 Peter: Whereas, Alito seems to be saying the opposite. That seems to be the only thing that Kavanaugh is actually saying here affirmatively, the only new information we're getting from the concurrence.

0:14:06.3 Rhiannon: Right, right. It's a bit... Yeah, exactly. And I think he thinks it's narrowing... He also says, "To be clear, the court's decision today does not outlaw abortion throughout the United States."

0:14:17.8 Peter: He's just writing for the media, right? No lawyer would think that that's what's happening.

0:14:22.5 Rhiannon: Right, we know that from the majority, you fucking clowns. We get that, but also, this is a transition into the part of the concurrence where Kavanaugh talks about the democratic process and how this decision is now left to the people through their elected representatives. But it's this disgusting idealizing of the processes and institutions that we have, that in reality, are also broken. You're talking about state legislators and state constitutional amendments, that doesn't happen anymore.

0:14:53.6 Peter: Right, you've allowed for gerrymandering and the...

0:14:55.7 Rhiannon: Exactly.

0:14:56.9 Peter: Erosion of voting rights, and then you're like, "Well, you can always try those elections."

0:15:00.9 Rhiannon: You can always use democracy for what you want. Yeah.

0:15:03.4 Peter: This is what they say when they're stripping away a constitutional right, as if... They talk about returning it to the States. And the majority does this too, where they say, "We are returning the issue to your elected representatives," as if by taking a legal protection away, what they're actually doing is bestowing you the gift of democracy.

0:15:22.3 Rhiannon: Yeah, yeah, exactly.

0:15:25.7 Peter: It's just so fucking transparent. It's like, "Oh thanks. Thank you for putting our rights, that we previously had protected, up for a vote."

0:15:34.4 Rhiannon: Yeah, right.

0:15:35.8 Micheal: Look, you don't ever have to hand it to Brett Kavanaugh. He's a piece of shit, and this isn't a good concurrence in any sort of... Any sort of sense.

0:15:44.9 Rhiannon: Right, not at all.

0:15:46.3 Micheal: But I will say this, we do talk about how when the justice is right, they're often signaling to lower courts and to activists about what cases they want them to bring and what cases they shouldn't, and arguments they're open to. And in that sense, I think there's, I wouldn't say reason for optimism from this, but there's something to at least feel like, "Okay, the... Kavanaugh is telling the legal movement here, hey, this is the line. We've handed you this victory, but now you got to fucking calm down and move on to other things." I wouldn't say that means he's necessarily going to uphold a Federal codification of Roe v. Wade, I don't know that that's a given based on this. But at the very least, he is sort of saying, "I'm with Roberts here on anything further, at least for the time being."

0:16:47.4 Rhiannon: But then you get that Thomas concurrence.

0:16:54.0 Micheal: Yeah, that Thomas concurrence. So let's talk about it, let's talk about that Thomas concurrence. So Thomas' concurrence says like, hey, this whole substantive due process thing that Peter described above, the idea that the liberty protected by the 14th Amendment is a sort of a very broad liberty, it's liberty in a very broad sense that includes some substantive rights, unenumerated rights. He says that's garbage. He says we should throw that all out, and that means all the attendant rights that are underneath that, that have come from that conception of the 14th Amendment. And that means the right to contraception, the right for gay couples to get married, the right to engage in consensual sex with the partner of your choice, in the manner of your choice. Those things are on the chopping block, absolutely.

0:17:54.8 Rhiannon: Yeah, he explicitly cites Lawrence, Obergefell and Griswold as these cases that should be overturned. He says that straight up.

0:18:02.5 Peter: Right.

0:18:03.0 Micheal: And so Griswold is sort of like the headliner because that's the one that says, you have the right to contraception, which obviously would be sort of remarkably revolutionary, even beyond what they're doing now to start restricting access to contraception. That is real medieval shit. That being said, I think there's a degree to which Lawrence v. Texas, is almost the scarier one. That was the case that overturned a law outlawing sodomy, which was targeted at the LGBTQ community, obviously. But if the state can regulate what goes on in your bedroom between consensual partners, it's not just gay people who are in risk there, I mean, they could outlaw cheating on your wife. Literally, infidelity, could be outlawed.

0:19:09.0 Peter: Why do I feel like the Republicans won't do that?


0:19:11.6 Micheal: Yeah. I mean, sex before marriage, literally, they could do that. There's no limit. And so, yeah. And then of course, Obergefell is the most recent, and I think one of the best recent decisions from the Supreme Court that said gay people have the right to get married. It was a sort of a crown jewel of a modern civil rights movement.

0:19:33.5 Peter: Right. And the Thomas concurrence is interesting because in Alito's opinion, he's sort of like, "Look, we're not saying anything about Griswold, Lawrence, and Obergefell," and then Thomas comes in and he's like, "We're gonna overturn Griswold.


0:19:48.8 Peter: We're gonna overturn Lawrence. We're gonna overturn Obergefell."

0:19:51.4 Rhiannon: Right. Yeah.

0:19:53.6 Micheal: Yeah.

0:19:53.7 Peter: It's a completely different energy and sort of putting a stake in the ground, saying like, "I'm ready to fucking go." And I think we know that Alito is too, to the degree that Alito put any tempering language in the majority, it was almost certainly to get Kavanaugh and/or maybe Coney Barrett onboard, right?

0:20:13.0 Micheal: Yeah. I wanna talk about something that Thomas says at the very end of his opinion, where he says substantive due process is often wielded to disastrous ends, and he says, "For instance, in Dred Scott v. Sandford, the court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories." And so I don't know why this has to be spelled out, but Dred Scott v. Sanford from 1857, widely considered a case that precipitated the Civil War, substantive due process is a legal theory that relates to the 14th Amendment, which was passed after the Civil War.


0:21:00.7 Rhiannon: That's right. Yeah.


0:21:03.1 Peter: So when he says a species of substantive due process...


0:21:13.3 Micheal: And yeah, the 15th... The Fifth Amendment, rather. The Fifth Amendment has a due process clause, but it's... The liberty in the due process clause is not an issue in Dred Scott. It's property. It's that the slaves are a property. That's it.

0:21:24.3 Peter: Yeah. It's literally property rights, yeah.

0:21:27.0 Micheal: It's property rights. This is nonsense. It's absolute nonsense to call that a species of substantive due process. And it's also really rich coming from Clarence Thomas because he's the guy who's sort of put his flag down this term as the Dred Scott guy and has cited it approvingly twice.


0:21:52.3 Micheal: Twice, including the day before this opinion came out, an opinion that came out the day before this opinion came out.

0:21:58.4 Peter: It seems obvious that what he was doing was reading Dred Scott to make this argument to be like "Pro-abortion people are doing a Dred Scott, and I'm gonna make the case."

0:22:07.3 Micheal: That's right.

0:22:09.9 Peter: But then he saw a bunch of stuff he actually kind of liked and was like, "I'm gonna cite this in other cases." [chuckle]

0:22:14.6 Micheal: Yeah, that Roger Taney, he makes some good points.


0:22:16.7 Micheal: He makes some good points. [laughter] And I do think at the end, he spends the opinion talking about how substantive due process just allows judges to enact their policy preferences, but he gives the game away at the end in a pretty offensive passage where he compares the effects of Dred Scott, which was the Civil War, to the effects of Roe v. Wade, which was 63 million abortions have been performed, literally saying a woman having abortion is comparable to death and destruction brought by war. Fuck that guy.

0:22:53.7 Peter: Yeah.


0:22:54.8 Micheal: Like...

0:22:55.8 Rhiannon: Yeah, it's disgusting.

0:22:55.9 Micheal: With all my chest, fuck him. But clearly, it's like this is a guy, he's an anti-abortion zealot and... But I do like Dred Scott for one last reason, which is that you know what Congress did in response to Dred Scott is they fucking ignored it. They told the Supreme Court to eat shit, and then after the Civil War, they expanded the court to marginalize the block that was in the majority in Dred Scott.

0:23:23.7 Rhiannon: Yeah.

0:23:24.2 Micheal: And I think that's a good lesson for the left to take here.

0:23:27.3 Rhiannon: That's right. Yeah, yeah, good point, Michael.

0:23:30.2 Peter: The last thing we should mention about Thomas's concurrence is that there is a case, a substantive due process case, suspiciously omitted from his list of cases we should overturn, Loving v. Virginia, which held that interracial marriage is protected and legal under the Constitution. Now, Loving is not just predicated on substantive due process, it's also an equal protection case, but so is Obergefell.

0:24:00.3 Rhiannon: That's right.

0:24:01.8 Micheal: Yes, that's right.

0:24:03.5 Rhiannon: Yeah, exactly.

0:24:03.9 Peter: So it's unclear why Clarence Thomas would leave it off. And if I had a guess...


0:24:11.2 Peter: I would say it's because he loves Ginni Thomas. [laughter]

0:24:13.9 Rhiannon: Ginni. Ginni.

0:24:17.0 Micheal: Yeah.

0:24:17.1 Rhiannon: It's all for Ginni.


0:24:20.2 Peter: That's love. That's what love is.

0:24:22.0 Rhiannon: Yeah. "I won't overturn the decision that made our marriage legal. That's all for you, baby."

0:24:28.7 Peter: "That's my promise to you, baby."

0:24:30.1 Rhiannon: Yeah. [laughter]

0:24:32.8 Micheal: I do think also that that shows sort of the poverty of what an impoverished reading of the 14th Amendment is, to treat protection and due processes like these siloed things and not part of a joint...

0:24:44.7 Rhiannon: Exactly.

0:24:45.4 Micheal: Promise of liberty and equality to freed slaves and to every person. It doesn't protect citizens, it protects persons in this country, right?

0:24:56.3 Rhiannon: Right. Yeah, pretty critical, it's anti-intellectual, it's... Yeah.

0:25:00.2 Micheal: I just fucking hate Clarence Thomas so much. It's absolute garbage. This whole opinion is garbage.

0:25:07.6 Peter: We should talk about John Roberts's concurrence. John Roberts concurs in judgment only, meaning he would uphold the law banning abortions after 15 weeks but would not overturn Roe. The most notable thing about this is just how insignificant the concurrence is.

0:25:22.8 Rhiannon: Yeah.

0:25:24.5 Peter: He clearly wrote it hoping to peel off one of the conservative votes and therefore save Roe itself, but he failed. So you just have this meandering concurrence that accomplishes nothing. The once powerful consensus builder who controlled the Supreme Court now reduced to begging for a single vote in the most consequential case of his career.


0:25:47.8 Peter: Spent his whole tenure refining the art of putting a rhetorical mask on conservative politics, but just when he prefects it, his colleagues decide that they don't need masks.


0:26:02.0 Micheal: Right.


0:26:03.0 Peter: I'm sure there's a roughly parallel Greek tragedy.

0:26:04.6 Rhiannon: No costumes for Halloween this year. We're just trick or treating, baby.


0:26:09.7 Peter: Give me the fucking candy.

0:26:10.5 Rhiannon: Yeah, that's right.

0:26:12.3 Micheal: There's something about like how the liberal establishment sort of loves John Roberts, in a very real sense. And I think this sort of illustrates like the... And I wanna say poverty again, [chuckle] but like how, hollow...

0:26:27.4 Rhiannon: Emptiness?

0:26:28.7 Micheal: Yeah, emptiness, how hollow this view of the court is, right? Like the liberal ideal of like, okay, even when conservatives control the court, it's still like a court of laws, and we're gonna have to respect the institution or whatever. Like that's what John Roberts is in a lot of sense here. And look at the clown.

0:26:49.7 Peter: Yeah.

0:26:49.8 Micheal: Like just nobody gives a shit. Conservative activists don't give a shit, conservative politicians don't give a shit, his fellow conservatives on the court don't give a shit. And certainly no liberals right now are giving him any props. Right? Nobody cares. It's a fucking stupid way to think about power in the court.

0:27:09.7 Peter: Right. We should talk about the dissent. The dissent is jointly authored by the liberals. There's no single author, which is rare and signals that they are attempting to make a statement and speak in a powerful unified voice or some dumb bullshit like that, you know?

0:27:29.0 Rhiannon: Yeah. I'm not sure why, but I kind of expected, the dissent is good.

0:27:34.0 Peter: Yeah.

0:27:34.1 Micheal: I agree.

0:27:34.5 Rhiannon: I think that it's forceful. I think that it says a lot of important things. I think that it properly sort of contends with the magnitude of a decision to overturn Roe versus Wade, and it goes through some really good consequences of this decision. Right? Some sort of inevitabilities that now the country legally and otherwise has to contend with, but I also, for some reason, expected them to write separately. In my head, it seems more forceful for the three of them to write separately and then maybe even have like a joint dissent too. You know? I sort of get the like unified front, the presentation of a unified front, but I also, maybe it's just like, sort of grasping at straws and you want this perfectly well articulated, forceful, really strong response to this horrific decision. But it's just the one dissent.

0:28:25.3 Micheal: Yeah.

0:28:25.4 Peter: It is three different dissents combined into one, right?

0:28:27.7 Rhiannon: Yeah.

0:28:28.2 Micheal: It is. Really.

0:28:28.3 Rhiannon: You can tell. Yeah.

0:28:29.4 Peter: You can be like, this is where Kagan starts.

0:28:31.7 Micheal: Yes.


0:28:32.2 Peter: It really, it's not like they collaborated, they're like, I'll do this point, you do this point, you do this point. They wrote this dissent like we write the podcast.

0:28:40.1 Rhiannon: Right.


0:28:40.5 Rhiannon: Exactly.


0:28:44.4 Rhiannon: Three people with ideas. Get 'em all down on the page.


0:28:49.4 Micheal: Yeah.

0:28:50.2 Rhiannon: What I do like about the dissent is the way they frame the right that is supposed to be protected by the constitution. The right to an abortion flows from that. So they say that the constitution is designed to protect "Autonomous decision-making over the most personal of life decisions." So, here, they're responding to Alito in the majority saying that the right to an abortion specifically is unenumerated in the constitution. The dissent, I think, responds really well to that and says, 'Look, we're not saying a right to an abortion is enumerated in the constitution. We see the same text, you fucking assholes, we know that. What we're saying is the constitution protects stuff, obviously that is beyond what is enumerated here, and based on the constitution and what it does protect in an explicit way, other rights flow from that." Right? And that includes the ability of people on their own, in a free society to make the most important of life decisions on their own without government intrusion. I think the dissent really articulates sort of those equality interests, as well as substantive due process interests in an expansive way and connects it to the reality of life and those and the import and magnitude of those decisions in the life of pregnant people.

0:30:13.7 Peter: What they do very well is lay out the actual material impact of the decision on pregnant people...

0:30:20.3 Rhiannon: Yes, yeah.

0:30:20.3 Peter: Expressly saying that it strips them of agency and forces them to carry out the will of the state at great expense to them and their families. They say that it does damage to the status of women as free and equal citizens. I thought that was the most important and powerful part of the dissent. And they also, I think, do a pretty good job of defending the right, like you were saying.

0:30:43.0 Micheal: Yeah.

0:30:44.8 Peter: Like making a case for Roe.

0:30:45.6 Rhiannon: Yeah.

0:30:45.9 Peter: Which I was afraid they were not going to do, and instead focus on stare decisis, the idea that the court needs to respect precedents. And I don't think that they did at the end of the day, although the weakest part of the dissent is the part that focuses on stare decisis. And...

0:31:02.3 Rhiannon: I agree.

0:31:02.5 Peter: Basically says like, "The majority is making a legal error by ignoring established precedent." You know, it's, I guess, a fine argument to mention, but it's empty formalism at the end of the day. And it feels like half an argument. Right?

0:31:16.9 Rhiannon: Yes.

0:31:17.7 Peter: Like what you wanna do is make the full throated defense over the right, not of like the fact that we had a decision that said this 50 years ago.

0:31:26.2 Micheal: You weren't persuaded by stare decisis is Latin for...


0:31:32.5 Rhiannon: Right. Yeah.

0:31:33.7 Micheal: Citing to Blackstone, blah, blah, blah...


0:31:36.1 Peter: That part of the descent dragged on for long enough where I was like, "Come on," like just...

0:31:40.9 Micheal: Yeah. Let's wrap it up here. [laughter] Almost certainly written by Elena Kagan.

0:31:44.9 Peter: Oh yeah. So it felt very Kagan-y, I think, but it also feels so weak coming after the portion that is talking about rights being stripped from women and their equality being diminished and pregnant people suffering these consequences, and then you go into like, "And it violates the rules."


0:32:04.5 Peter: "The rules of reading cases."


0:32:07.9 Rhiannon: Right, right.

0:32:09.2 Micheal: Yeah. I'll see, the thing that I liked best about the dissent, and I don't think this is quite rehashing what Peter and Rhiannon said, was that, the way it framed Roe as sort of flowing from women's elevation to equal status under the law.

0:32:29.7 Rhiannon: Yeah.

0:32:30.8 Micheal: That, you know, women weren't free and equal citizens in the 1860s or even in the 1920s. And it is right around the time that they are becoming full agents, you know, their own agency to make their own decisions in the world, enter the workforce, attend higher education that we see these other rights about contraception and abortion and the ability to control their body when they want to have a family emerging. And that makes sense. It's all of a piece. And so this is... This decision isn't just about like, "Okay, well, now it's up to the states to decide whether women can have an abortion," this decision is about making women second-class citizens, period.

0:33:24.6 Rhiannon: Yeah, right.

0:33:24.7 Micheal: Like this is like saying that all those things were a mistake.

0:33:28.9 Rhiannon: Right, exactly. Yeah, yeah.

0:33:30.8 Micheal: I found it really powerful. I thought they argued it really well.

0:33:33.8 Rhiannon: Yeah.

0:33:33.8 Peter: Yeah, I think as far as dissents from the Libs go, this is one of their better efforts.

0:33:39.0 Micheal: Yeah.

0:33:39.9 Rhiannon: This feels like a good time to take a break. Okay, and we are back.

0:33:44.8 Peter: Okay. So let's talk about some of the responses to this news from the Democratic Party, which, again, if you're not familiar, they are one of the two parties...


0:34:01.6 Peter: Ostensibly, in our country's system. Now, because of the leak, the leak was basically two months ago, the Dems had a lot of time to prep their PR response, which is why it was so good, I think. Is that what you guys think?


0:34:25.4 Peter: So we basically get a bunch of like, "Wow, this is sad. What you should do... "

0:34:32.1 Micheal: "Is donate to my campaign." [chuckle]

0:34:33.9 Peter: "Vote for us and donate to Democrats, and maybe we'll win elections in the future," and that's basically it, right?

0:34:40.5 Rhiannon: Yeah, and maybe in that future, we'll protect abortion rights.

0:34:43.1 Peter: Right. "We didn't do it for you this time but maybe next time, guys. Envision a world where Democrats are even more in control of the government."

0:34:52.4 Rhiannon: Right.

0:34:53.0 Peter: "Wouldn't that be better?"

0:34:54.0 Rhiannon: Yes.


0:34:54.4 Micheal: Yeah.

0:34:54.4 Peter: And you're supposed to say yes. So Biden gave us a pretty generic statement. It was, I guess, fine in some respects, but just sort of lacking any plan, right?

0:35:09.1 Rhiannon: Yeah.

0:35:09.1 Peter: Lacking any sort of course that he was going to take. It was more just like a rhetorical statement saying, "I believe this is bad, sorry. Vote for us," and that was it. Pelosi does the same thing, except she also read a poem.

0:35:24.8 Rhiannon: Thanks, Nancy.


0:35:25.7 Peter: She read a poem out loud. House Democrats sang God Bless America on the Capitol steps.

0:35:35.0 Rhiannon: While you could hear the protesters in the background and see the freaking Capitol police, or whoever, marching towards the protest to make sure it didn't get out of hand.

0:35:47.1 Micheal: So I will say that saying, "God Bless America," this isn't in defense of them, by the way, but that was part of their announcement that they passed the guns bill.

0:35:55.3 Peter: Yeah, but they also were aware that Roe v. Wade had like... [chuckle]

0:36:00.9 Rhiannon: Optics.

0:36:01.0 Micheal: Right, that's what I'm saying, that we...

0:36:03.0 Rhiannon: Optics, people.

0:36:04.4 Micheal: Even if this is what you had planned, who's in charge? Who wasn't like, "Yeah, maybe we shouldn't be singing on the Capital steps today."

0:36:12.6 Peter: Right.

0:36:13.0 Micheal: Like, "Maybe this isn't the time to do that." And also consider maybe it's never the time to be singing on the Capitol steps, that's something you should consider. But, yeah, this moment, how fucking tone deaf. And I don't mean that in that they couldn't carry a tune.


0:36:34.0 Peter: Everything's just fucking aesthetics. Like, "Let me read you this poem," it's like, "No, you fucking... " I don't need to feel something right now. You don't need to try to evoke emotion out of me. When you go out into the streets and protest, maybe part of what you're looking for is solidarity, right? I don't need aesthetic solidarity from my leaders, I need action, right?

0:36:57.4 Micheal: Right.

0:36:57.4 Peter: Right? That's what solidarity from leaders looks like. And they didn't do shit, they didn't say, "Here's our plan. Here's what we're going to do," in any sort of affirmative sense. They had two months, minimum. They had two months, right?

0:37:12.2 Rhiannon: Yeah.

0:37:12.7 Micheal: Yeah, so two points in response to that, which is, one, to the point about aesthetics. Back to the singing on the Capitol steps about the bill, I know this is the Roe v. Wade episode, but it's worth noting that the only two gun restrictions in the bill would undoubtedly fail the test laid out by the Supreme Court the same day the Senate passed the bill, [chuckle] right?

0:37:41.0 Peter: Right.

0:37:41.0 Micheal: In terms of aesthetics, passing a gun law that is about to be overturned by the Supreme Court is pretty much the height of aesthetics. And then singing on the Capitol steps congratulating yourself for passing that law is like layers of impotence.

0:37:58.9 Rhiannon: Right. Layers of empty aesthetics. Yeah.

0:38:01.0 Peter: Right.

0:38:01.5 Micheal: And so then I'll also say, Biden did in his speech say that, "Look, we'll codify Roe," and he did say that he's gonna do some stuff with the executive. It's good that Biden said that, but in terms of how disorganized the party is, seven packs, including the DSCC, the Democratic Senatorial Campaign Committee, and I think the Congressional Campaign Committee and the governors and shit, they all released a statement before Biden's speech where they didn't commit to that, right? The party had months... I mean, really, the party had years, because anybody who wasn't in denial knew this was coming the second Coney Barrett got confirmed.

0:38:45.7 Rhiannon: Right.

0:38:45.9 Peter: Right.

0:38:46.4 Micheal: But they had months after the leaked opinion to get on the same page, and they were not. And I think it's worth mentioning Clyburn's statement as well to that point. The fucking majority whip in the House, the majority whip. That is like, the number two or number three most senior position in the House of Representatives. He said, and I quote, "It's a little anti-climactic. I think we all expected this." [laughter]

0:39:19.6 Peter: Are you fucking kidding me, dude?

0:39:24.1 Rhiannon: Right, it's so weird because it's like, where are your aesthetics there, right? You're not even mustering an emotion.

0:39:31.6 Peter: He's not even doing the performance that Pelosi is doing.

0:39:34.8 Rhiannon: Yeah, you're not even doing the circus act of...

0:39:39.2 Peter: Pretending that you fucking care, right?

0:39:41.6 Micheal: Right. You can't even pretend.

0:39:43.8 Peter: By pretending that you have some real stake in this. These are our fucking leaders, someone reading a poem and some guy being like, "Yeah, well, we knew it was coming, didn't we. Fuck off." That's it.

0:39:55.1 Rhiannon: Right.

0:39:56.9 Micheal: Yeah. Look like Nancy Pelosi was majority whip in 2002 and took over as leader, I think in 2004 in the house, Clyburn, Steny Hoyer, they've been leaders in the house for pretty much just as long, Schumer and Durbin have been in leadership for well over a decade in the Senate. Obviously, Joe Biden has been leadership in the Senate since the '80s, and was the Vice President for eight years and is now the President. These people have been running the party for decades, literally decades. This is the party they've built. If it's a party that cannot protect Roe v. Wade when it controls all three elected parts of government, right, that's a failure. If you don't have the ideological coherence to do this right now, and if you don't have the party discipline to do this right now, that's a failure.

0:40:48.9 Micheal: If the conservatives can fucking overturn Roe v. Wade, one of the most important pieces of the Democratic Party's platform, foundation, the whole reason for existing, while you control the Presidency and both houses of Congress, you've failed as leaders. They need to fucking go. It's insane that they haven't resigned, to be honest. In any parliament, you would have had a snap election, a loss of confidence vote, and they would be fucking out. And it's insane that they're not, it's insane that they're not resigning, it's insane that nobody's talking about it, and it's insane that if they do somehow manage to capitalize on this decision by protecting or even expanding their majorities in Congress in the mid-terms, that they will remain in leadership.

0:41:41.0 Rhiannon: Yes, it's the same people.

0:41:43.4 Micheal: It's the same people. It's unacceptable. It is.

0:41:44.0 Peter: There are so many people doing Democratic Party apologetics right now. It makes me fucking sick. So many people defend the party establishment by essentially saying like, "Well, hey, what do you want them to do? What could they actually do at this point that would save abortion rights in this country?" And what they're trying to argue implicitly or explicitly, is that your anger at the Democratic Party is misdirected. It's not their fault. Blame the Republicans, or blame Manchin right, or something like that. And in the narrower sense, part of that may be true, there's not much Joe Biden himself could immediately do to combat this ruling, but if you zoom out, you see a party that was outflanked on the courts over the span of 40 years and never quite realized what was happening, and to some degree, still doesn't.

0:42:36.5 Peter: They saw Republicans organizing around the courts, executing a concerted plan to take control of the judiciary, and they just sat and watched. They watched Mitch McConnell run circles around them in Supreme Court appointments, and were unable to organize any sort of effective response. And now with Roe overturned and the court in the process of undoing every major progressive achievement of the past century, all the party leaders can do is tell you to vote in the next election. No real plan, no major proposed legislation that they're championing, just saying that, "If you vote hard enough, maybe something will improve in some indeterminant way in the future." And just don't fucking talk to me about how the real problem is Manchin and Sinema or whatever. If you're a political party in complete control of Congress and the White House, and you cannot compel your caucus to take action on maybe the single most important issue to your base, then you're a failed party. You're a failed party.

0:43:42.4 Micheal: Yeah, yeah.

0:43:42.5 Rhiannon: Period. Yeah.

0:43:46.3 Peter: God dammit. For years, like any talk of moving the Democratic Party leftward was met with this argument that that would put the coalition at risk, right? The party is a big tent that must take care to appeal to moderates and incrementalist and institutionalists. And this is where that coalition gets you, an ineffectual, non-ideological blob that cannot take any material steps to defend the rights that it claims to care about the most. That's what this strategy has built. Every time they said no to Medicare for All, to police reform, to student debt relief, to cutting military budgets, it was for this, so they could build this world. Like the Democratic Party as it is currently constructed, is the ruling coalition that they've been seeking to protect for decades. And what's it doing for you?

0:44:43.9 Micheal: And it's the people currently in charge who built it, right? They didn't inherit this, they built this party, this is their party, and they have jealously defended their control of the party from all comers, like this is very much their party, and so, yes, this is their failure. Yeah, maybe Republicans are the arsons, but not exactly pleased with the people who show up and just read a poem at the fire, like you're like... [chuckle]

0:45:15.7 Rhiannon: Exactly. Yep.

0:45:19.4 Micheal: And if that's the best you can offer, then, yeah, I don't fucking need you. I don't. This is...

0:45:26.1 Rhiannon: Yeah. So turning, I think, away from the failures of the party to just, on the ground, what happens now that Roe v. Wade has been overturned? What's gonna happen next? What are the short-term, long-term consequences of this kind of decision? And first of all, it's hard to say all of that. I think that this is a monumental shift in the law, it's a monumental shift in what women and pregnant people have been able to rely on for decades. The dissent makes a point that anybody of child-bearing age now has grown up in a time where abortion has been legal and accessible, but that's not necessarily true for... We've talked about this numerous times, that's not necessarily true for people in states where you have already been living in a post-Roe reality.

0:46:18.9 Rhiannon: And this decision is just going to make it harder on the pregnant people in those states to access reproductive healthcare, even more egregiously. So, first, let's talk about trigger laws though. Around 15 states have trigger laws, which were laws on the books that said that if and when Roe v. Wade was overturned, an abortion ban would come into effect in that state. So Dobbs, this decision immediately triggered abortion bans in Kentucky, Louisiana and South Dakota. Within hours, other laws were triggered in Missouri, Arkansas, other states that banned abortion the same day that this decision came down. It looks like about half the states in the country are poised to ban abortion or most abortions in the coming days. And even beyond trigger laws, I've heard a lot of legal commentators and others saying that this decision creates a real legal chaos from decades of legislating on abortion even when Roe was good law.

0:47:20.6 Rhiannon: So, you have trigger laws in one sense... There are also criminal laws that are still on the books, laws that criminalized abortions, either by criminalizing the person seeking an abortion or criminalizing abortion providers, the doctors. There are criminal laws on the books in many places, and it's unclear if those criminal statutes are now in effect because Roe v. Wade was overturned or not. And then there have been, in addition to trigger laws, in addition to criminalization laws, there have been bans on abortion that had been passed to test Roe versus Wade and to test Casey. For example, let's take Texas. Texas has all three of these kinds of laws, and so you're now sort of sorting through this legal chaos to see what laws are in place and what's actually gonna happen on the ground. So, Texas currently has a six-week ban in place, as well as the terrible SB 8 law, the bounty hunter law, that allows private citizens to seek legal action against people who are aiding someone getting an abortion. In addition to the six-week ban, Texas also has a trigger law that will go into effect in 30 days after a judgment is handed down, which would ban all abortions except to save the life of the mother, there is no exception for rape or incest in the Texas law. So we have a six-week ban.

0:48:41.9 Rhiannon: We also have a full ban that supposedly is going into effect in 30 days, and then on top of that, we have criminal statutes on the books from before Roe versus Wade was decided. Our Attorney General, Ken Paxton said yesterday that, "Some prosecutors may choose to immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions, predating Roe that were never repealed by the Texas legislature." So you have just a sort of a chaotic maze of laws that all the states are navigating right now, and that basically confounds everyone in terms of what is the status of abortion care, and legal abortion care in every state. In states that already have bans in place, abortion providers have stopped providing services. Abortion funds in many places have stopped taking donations while they evaluate their legal liability, while they evaluate their legal ability to help people access abortion care.

0:49:43.9 Rhiannon: In another sense, medication abortion is also in question here. So medication abortion is one of the ways that you can obtain an abortion. It's extremely safe, you do it at home by taking a combination of two medications. So, that's one way forward for some people in states where abortion is banned to access medication abortion or to try to do that. But if medication abortion is going to be banned, then that forces many of these transactions of finding medication abortion, of finding the correct medication, that forces a lot of those transactions to happen on the black or grey markets, online, that sort of thing. And that makes it harder for people to access the actual medication that you need, to know that you're getting the correct medication, a safe medication. And then if people are doing this at home, and it's illegal, when they do need aftercare, when they need to go to a hospital, when they need to see a doctor afterwards, that makes these situations much less safe because people are expecting that they might be criminally prosecuted, for example.

0:50:48.4 Micheal: So, medication abortion is also probably the next front here, like Merrick Garland came out and said like...

0:50:56.9 Rhiannon: Yes. Yeah.

0:50:57.9 Micheal: The states don't have the power to ban an FDA-approved medication.

0:51:02.6 Peter: Right.

0:51:02.9 Micheal: And so I think that's gonna be a very big front in this fight between the federal government and the state governments.

0:51:10.4 Rhiannon: Yeah, so DOJ came out yesterday and said, Look, this medication is FDA-approved for this purpose. State governments can't say that you can't take a medication that's approved for this purpose in your own house. So yeah, that is going to be the next legal battleground. Other legal battlegrounds coming up beyond abortion bans, more areas of chaos, how do people access miscarriage management care? How do people access care for ectopic pregnancies? The overruling of Roe versus Wade implies that other pregnancy outcomes are going to be criminalized, punished or else, right?

0:51:51.6 Peter: And there's also, I think a bit of a question around what is or is not an abortion?

0:51:56.5 Rhiannon: That's right, yeah.

0:51:57.1 Peter: There are certain forms of contraception that conservatives have long argued are actually a board of fashion... Right?

0:52:05.0 Rhiannon: Right.

0:52:06.0 Peter: Many people have rightfully said, "Hey, they're gonna go after Griswold and attack the right to contraception," which is pretty clearly correct, but they don't necessarily need to do that just yet because they've been arguing for years that Plan B and certain IUDs are actually causing abortions, even though I think most doctors would say, "Well, that's not what's actually happening with Plan B." It doesn't end a pregnancy. But we're talking about a gray area created by definitions that, to a lot of state legislators, might be flexible when I think that they're not to doctor. So there's a fight growing about what actually is an abortion, and there's an open question of where the court lands on that.

0:52:44.6 Micheal: It's bullshit, but it's not hard to imagine how...

0:52:47.2 Peter: Right exactly.

0:52:50.4 Micheal: Preventing the implantation of a fertilized embryo can be conceptualized as abortion.

0:52:54.9 Rhiannon: Right, exactly. Especially when you're talking about state legislators who are not fucking experts on this medical field on bodily, on body anatomy...

0:53:04.8 Peter: They're actually dumber than your average house cat so...

0:53:07.3 Rhiannon: That's right, [laughter] yeah, exactly.

0:53:10.5 Micheal: Yeah, that's right.

0:53:12.3 Rhiannon: Louisiana has a bill in the works about banning certain types of contraception. Missouri said that they were going to pass a law, other states have said this too, pass a law to ban travel to other states to seek an abortion. Just the scope of criminalization and legal liability is really unclear at this moment, are your Uber drivers, your doctors, your nurses, pregnant people, their family members, Abortion Funds... We don't know right now based on what state people are in, what the status of abortion care really is in a lot of places.

0:53:48.7 Micheal: I think I mentioned this before in the podcast, but something I do feel very confident about is that the Missouri travel ban won't stand up to legal scrutiny even with this court.

0:54:00.6 Peter: That was the other thing that Kavanaugh said, right?

0:54:02.1 Rhiannon: Yeah.

0:54:03.9 Peter: He said that he believed that bans on people traveling to other states to get abortions were violating the right to travel between the states.

0:54:13.3 Micheal: Yeah, I already thought that would be the case, and I think Kavanaugh's concurrence just sort of confirmed that for me, that they don't have five votes for that.

0:54:19.1 Rhiannon: Legal confusion and legal chaos aside, what should be the bottom line here is that this decision allows states to coerce people into mandated child birth, into force pregnancy, right? That is going to lead to people dying.

0:54:34.7 Micheal: Yes.

0:54:35.6 Rhiannon: There are estimates, I read in the New York Times this morning that overruling Roe versus Wade may only cause a drop in abortions of 13%, but it will be higher among minority women and poor women, for sure, who already don't have access to competent abortion healthcare, and it's going to make things worse based on where you live geographically, what your class status is, and your race.

0:55:05.0 Micheal: Yeah, I think there's Ri's point that those numbers aren't gonna hold true across demographics, but then I also wanna point out that as we said, this impacts a lot of other stuff, IVF, ectopic pregnancies, etcetera, but that also means that like... Yeah, it might be easier for wealthy white women to get abortions, they can travel, but also if they do have a miscarriage, that doesn't help them avoid suspicion...

0:55:33.2 Rhiannon: That's right.

0:55:34.0 Micheal: That they did something to cause that miscarriage. Their miscarriage can still be criminalized. And so this affects everyone. It really does. It'll fall the hardest on poor people and minorities because about every oppressive law in this country falls the hardest on poor people and minorities, but...

0:55:55.3 Rhiannon: That's right.

0:55:56.3 Micheal: But we need solidarity now in general, but it... Solidarity because it affects everyone. It's dispiriting. I'm not gonna lie, I try to be... Try to be angry and/or optimistic on the podcast, but I'm feeling a little defeated today.

0:56:14.0 Peter: Yeah. You're our resident optimist for sure. [laughter]

0:56:19.8 Micheal: Well. So I will say that I've been very critical of the Democrats and their inability to articulate a plan to face down the Supreme Court, which I think is ultimately necessary to protect this right and many other rights. They're saying they'll pass a bill to codify Roe v Wade. And if they do, the Kavanaugh concurrence, gives you some reason to believe maybe he'll go along with it, maybe not. I don't wanna get into just [0:56:45.9] ____ reads, but just because the constitution is silent on abortion doesn't mean that Congress has the power to regulate abortion, 'cause it's a Congress of enumerated powers, so there's no guarantees there, but maybe. Maybe in the intermediate term, that will be enough. In the long term, it's not. But maybe. And that's within reach.

0:57:11.5 Peter: I'm gonna go on record disagreeing. This is all completely theoretical 'cause they're never gonna pass the law, but just so people are aware of what the argument would be, Congress would probably pass the law under the Commerce Authority, and the conservatives already have an narrow view of the Commerce Clause. And I wouldn't be surprised if they say, "Nope, abortion regulations aren't Commerce."

0:57:36.0 Micheal: They might try under the 14th amendment.

0:57:38.1 Peter: Yeah, they might, they might. I just wanna get on the right side of history here because optimism never wins.

0:57:44.9 Micheal: Yeah. [chuckle] I'm not saying it'll definitely stand up, I'm just saying maybe.

0:57:47.9 Rhiannon: Hope, it doesn't necessarily mean optimism, I think like Mariame Kaba says, "Hope is a discipline," and it means that we have a duty to fight and we have a duty to win, regardless of what Brett Kavanaugh.

0:58:01.3 Micheal: I think that's right.

0:58:02.6 Peter: There's something a little surreal about all of this, 'cause if you're a lefty court watcher, the overturning of Roe was always a bogeyman lurking in the distance, it's almost symbolic, a symbol of how bad things could get. And then it happens and you have to accept that it's not symbolic, that it's our reality, and it's not an end point, it's just part of the process of an ascendant reactionary movement that's unraveling our civil rights. I think that can be frightening, and we've sort of built a podcast around the... What was when we started maybe a novel idea that the Supreme Court sucks.

0:58:42.5 Peter: [chuckle] That it is not good, that it is a ideological... And since we've been sort of obviously proven right, I think it would be easy to be self-satisfied and yet I feel mostly hollow about it. It feels weird and depressing, but I will say we've carved out our little niche, I guess, as the most cynical Supreme Court podcast out there, and at times that led to criticism that we're un-serious in some way, but the so-called serious people, the scholars who get columns in the Washington Post and the Wall Street Journal, they spent the last five years saying, "This was unlikely to happen." Right?

0:59:25.1 Rhiannon: That's right.

0:59:25.2 Peter: Neal Katyal, who continues to be one of the most beloved liberal media lawyers.

0:59:32.3 Rhiannon: Not to mention highly paid lawyers in the country.

0:59:34.8 Peter: Right. He introduced Gorsuch at his confirmation hearing and wrote about how liberals should welcome him to the court. So who are the serious people really, right? The failure of the legal Media and the broader political media to cover the court for what it is, is part of what got us here. It's always been a little bit, you know this tongue-in-cheek joke we make that three idiots had to make to make a podcast to describe what's going on at the court, but it's true. It's fucking pathetic that mainstream media coverage, if you had followed it for the past decade, this all would have caught you off guard, this term would have caught you off guard. Remember a year ago, all the media coverage was about the 333 Court and how Roberts was in control when the court was moderate. All of that shit was wrong, all that shit was just the media getting duped by a fucking obvious head fake.

1:00:34.2 Rhiannon: Right.

1:00:35.8 Micheal: I definitely waited way too long to do this, but I donated to and signed up to volunteer for an organization here in New Mexico that helps women coming across the state border from Texas get abortions. There are plenty of organizations and a lot of blue states that do that, and you see like California, Illinois, New York, the governor is talking about protecting and even facilitating out-of-state abortions. You should be looking for opportunities to donate, and volunteer your time with those orgs, 'cause they are gonna be vitally important.


1:01:20.1 Peter: Thanks for joining us for our emergency episode on the end of Roe v. Wade. And the first part of our series is about the end of civilization.


1:01:30.4 Peter: Be well, take care of yourselves. We will be back on Tuesday with a regular episode that we recorded before this happened, so you can see if there's any change in our souls. Can you sense it? Can you hear that part of our souls have left our bodies? [laughter] Follow us on Twitter @5-4pod. As always, our thanks to our patreon subscribers who help support us, and we appreciate it, and we love you.

1:02:02.9 Micheal: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.