The Rise and Fall of Roe v. Wade, Pt. 2

In the second part of a two-episode series on abortion rights, the hosts discuss Planned Parenthood v. Casey, a 1992 case in which the Supreme Court made it easier for states to restrict abortion access so long as abortion regulations don’t create an “undue burden.” The vague standard set lawmakers on a new path of attacking abortion access and fueled anti-abortion groups’ efforts to spread stigma and misinformation, setting up Roe v. Wade for a death by a thousand cuts.

A podcast where we dissect and analyze the Supreme Court cases that have dissolved our liberties, like cotton candy into water.

0:00:00.8 S?: We'll hear argument now in number 91-744, Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey.

0:00:11.2 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects, and this is part two of 5-4's series on abortion rights. On today's episode, the fall of Roe v. Wade, in which Peter, Rhiannon and Michael are talking about Planned Parenthood v. Casey, a 1992 case that upheld Roe while weakening it significantly. The ruling gave rise to a framework that has allowed conservatives to chip away at abortion rights bit by bit.

0:00:36.4 S?: Yesterday, the Supreme Court gave state politicians new sweeping powers to really intrude in the most intensely personal decision women will ever make.

0:00:48.8 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:55.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have dissolved our liberties like cotton candy into water. I am Peter, I'm here with Michael.

0:01:08.9 Michael: Hey, everybody.

0:01:10.2 Peter: And Rhiannon.

0:01:11.5 Rhiannon: Hello.

0:01:12.0 Michael: Last but not least.

0:01:14.7 Peter: That's right.

0:01:15.4 Michael: 'Cause it's an abortion episode and she's like the star of the show, like how the biggest star gets introduced last in the basketball game.

0:01:22.0 Rhiannon: That's right. I'm the main event, baby.

0:01:23.7 Michael: Yeah, that's right. That's right.

0:01:24.3 Peter: Alright. This is part two of our two-part series on the rise and fall of Roe v. Wade. We are publishing this on January 19th, and that means we're doing it one day before Joe Biden's inauguration, which I'm sure will go off without a hitch based on what we've seen so far.

0:01:44.3 Rhiannon: No controversy should be super smooth.

0:01:48.4 Peter: How are you guys feeling? I'm gonna miss Donald Trump in a lot of ways, you know?

0:01:52.5 Rhiannon: I don't feel, I've said this numerous times now, I do not feel any more, and therefore I don't have an answer to your question.

0:02:00.1 Michael: I am all out of energy to be angry or anxious or anything anymore. So I've just got this baseline level of sadness that's just like...

0:02:07.9 Peter: Sadness because Trump is going.

0:02:09.8 Michael: Right, I'm gonna miss him.

0:02:11.7 Peter: Never mind I'll find someone like you...


0:02:17.7 Peter: Told you guys I could work in some music.

0:02:18.7 Michael: Yeah, perfect.

0:02:19.8 Peter: Alright. So, in many ways, the slow decline of Roe v. Wade is actually the story of one case, Planned Parenthood v. Casey, and its fallout. There's almost an inherent urgency when we talk about abortion rights now with a Court that seems like it may overturn Roe for good. And to situate the current Court in history, it's important to understand the long campaign by the pro-life wing of the conservative legal movement to undermine abortion rights. In our last episode, part one of the series, we covered the Court's 1973 holding in Roe v. Wade, which said that the Fourteenth Amendment protects the right to an abortion, when the Court held that the right to an abortion fell under the Constitution's protection of a right to privacy and created a framework where the right to an abortion was strongest during the first two trimesters of pregnancy, and then weaker during the third and final trimester.

0:03:14.3 Peter: Following that decision, the conservative political movement rallied around rejecting Roe, to the point where it became one of its central tenets. An anti-abortion stance was adopted by Reagan and the GOP. At the same time, conservative lawyers are organizing and institutionalizing. The Federalist Society is formed in 1982, and conservative jurisprudential ideas find prominent champions like Antonin Scalia.

0:03:39.2 Rhiannon: Boo!


0:03:42.3 Peter: That's right. They attempted several times over the course of the '80s to have Roe overturned, to no avail. So place yourself now in the early 1990s. We're now nearly 20 years out from Roe. The conservative legal movement has completely changed. It's now organized, ideologically much more coherent and in firm control of the Supreme Court. Rehnquist, one of the only dissenters in Roe v. Wade, is now the Chief Justice. The only other Roe dissenter, Justice Byron White, is still on the Court. Antonin Scalia and Clarence Thomas, two committed ideologues, have joined the Court. On top of that, the Court has Reagan appointees Sandra Day O'Connor and Anthony Kennedy and Bush appointee David Souter.

0:04:27.6 Peter: The only real liberals on the Court are John Paul Stevens and Justice Harry Blackmun, who himself wrote the majority opinion in Roe. In other words, in the minds of conservatives, it is time to pounce. And that brings us to Planned Parenthood v. Casey. In this case, the moderate conservatives actually band together to uphold Roe, at least in part. But at the same time, they weakened it severely, allowing conservative lawyers and judges to hack away at it in the ensuing decades. And as a result, not only is Roe at risk of being overturned by the ultra conservative Supreme Court right now, but the right to an abortion that it created is in tatters regardless, the result of a half century of coordinated assault by the right.

0:05:09.4 Rhiannon: Yeah, yeah. I think a little bit first, just to build off of Peter's points about the composition of the Supreme Court at this time. Like we said, it's about 20 years after the Roe v. Wade decision, and there are only three Justices left on the Court who had been on the Court at the time Roe was decided. Now, really important and central to the story of the Casey decision at the Supreme Court is the Supreme Court's first ever woman Justice, Sandra Day O'Connor. O'Connor was nominated to the Supreme Court in 1981, and Peter has mentioned this before, but Sandra Day O'Connor was a moderate Republican politician and then later a judge, and she was known for siding with conservatives in most all of the decisions. But she frequently wrote sort of narrowing, concurring opinions that would limit a majority ruling.

0:06:02.8 Rhiannon: So her writing is characterized, I think, by sort of technical and constrained readings of the Constitution. You can tell that she doesn't ever set out to make sweeping precedents, decisions that will be broadly applied to lots of different situations. So I don't want to belabor the point, but at the final count here, you have eight Justices on the Supreme Court in the early '90s at this time, who were nominated by Republicans, six of them were nominated by Presidents Bush or Reagan, and those two Presidents both made opposition to Roe v. Wade part of their platforms. And because of this composition, legal academics, analysts and the public believe that when Casey gets to the Supreme Court, Roe v. Wade is about to be overturned.

0:06:53.1 Rhiannon: So just talking about the law that is being challenged in Casey, state legislators in Pennsylvania in 1982 passed the Abortion Control Act. And there were several provisions that the plaintiffs attacked as being unconstitutional under Roe v. Wade. I think it's important to mention four of these. As we're going to learn, in the wake of the Casey decision, conservative state lawmakers across the country begin to enact all sorts of restrictions on abortion. The statutory provisions at issue in Casey kind of just give a good example of what tearing away at the abortion right, at what that can look like.

0:07:32.8 Rhiannon: The first provision at issue is one requiring informed consent. So a woman seeking an abortion in Pennsylvania had to give her informed consent prior to the procedure, meaning that a doctor had to provide the patient with specific information at least 24 hours ahead of the procedure, which included information about how an abortion could be detrimental to her health. A patient would have to sign off at least 24 hours ahead of time saying that they had received all of this frankly superfluous information.

0:08:04.9 Rhiannon: The next provision of the law was a requirement for spousal notice, meaning that a woman seeking an abortion had to sign a statement saying that she had notified her husband prior to undergoing the abortion procedure, unless certain kind of extreme exceptions applied. Next, there was a provision for parental consent. Minors who needed to get an abortion in the state of Pennsylvania had to get informed consent from a parent or guardian. And if they couldn't get consent from a parent then they could seek what is called a judicial bypass, meaning they would have to go through a judge. A judge could consent to the minor getting an abortion.

0:08:45.3 Rhiannon: And then the other provision that was being challenged was a change to the definition of medical emergency. Lawmakers in Pennsylvania had basically said, okay, if the patient is in need of an abortion later in pregnancy, when most abortions are banned except in case of a medical emergency, they changed the definition of medical emergency to narrow those circumstances so that it was even harder to say that there was a medical emergency requiring an abortion to save the life of the mother or prevent risk of substantial and irreversible impairment of a major bodily function. Plaintiffs in the Casey case were five abortion clinics, as well as a class of doctors who provided abortion services. And they filed their lawsuit in federal court saying this new law in Pennsylvania, it is facially unconstitutional.

0:09:44.0 Rhiannon: And as a matter of fact, the lower court agrees with them, and the district court in Pennsylvania ruled that all of the provisions of the law that were challenged were in fact unconstitutional, and the court issued a permanent injunction against the Abortion Control Act. Now, when the case went up to the Third Circuit Court of Appeals, though, the Appellate Court decided to reverse almost all of that lower court decision, and they said actually that all of these provisions are fine, except for the spousal notification requirement. That requirement was overly burdensome on a woman's liberty because it potentially exposed her to spousal abuse, violence or economic duress from her husband.

0:10:28.0 Rhiannon: And just want to note here that at this time that the Third Circuit is reviewing this case, Samuel Alito was on that three judge appellate panel, and he dissented, in fact, from this section. He actually wanted the spousal notification requirement to be upheld. He thought it was perfectly constitutional because, "Baby, I've read the Constitution and it doesn't say shit about the rights of wives." Like wives don't have rights.


0:10:58.1 Peter: That's true, though, that's true.


0:11:01.4 Rhiannon: Planned Parenthood and the class of plaintiffs in the case appealed from the Third Circuit Court of Appeals, and that's how we get to the Supreme Court. Now, after oral argument at the Supreme Court, at the conference of the Justices when they're discussing the case and who is going to be in the majority and who is dissenting, you initially had a five Justice conservative majority, that would have been Chief Justice Rehnquist, Justices White, Kennedy, Scalia and Thomas, all in favor of upholding all of the restrictions in the law, saying that these restrictions on access to an abortion are fine, and that Roe v. Wade is not good law anymore.

0:11:44.8 Rhiannon: Now, that would put the two liberals in dissent, Blackmun and Stevens, but it was still unclear what Sandra Day O'Connor and David Souter would do. While they were conferencing and deciding over a few days, Justice Kennedy actually changed his mind and he broke away from the conservative bloc. And so eventually, what happens is that Sandra Day O'Connor, David Souter and Anthony Kennedy formed this sort of moderate conservative alliance that ends up being the plurality opinion here, which upheld Roe but sort of fundamentally changed the nature of the Roe ruling and shifted the balance of interests to be more concerned with state interests in restricting abortion.

0:12:28.3 Michael: Just to cut in for our lay listeners. A plurality opinion is when a majority of Justices agree on how the case should shake out, how it should be decided, but they can't agree on a reasoning. And so, no specific opinion gains the majority of the Court. The plurality in this case is three conservatives who are writing the precedent that all the lower courts have to follow.

0:12:52.8 Peter: Yeah. In Roe v. Wade, of course, the Court effectively created a right to an abortion. What's interesting about Casey is that it is often said to have upheld Roe v. Wade, but that's not entirely true. In reality, the only part of Roe that survives this case was the basic idea that there is a constitutional right to an abortion. But what that right actually means for women who want to get an abortion was changed entirely. So as a refresher, Roe v. Wade created a trimester framework, which I mentioned earlier, which basically made it very difficult to regulate abortion in the first two trimesters of a pregnancy, but allowed for more aggressive regulations in the third trimester. So basically, under Roe your right to choose during the first two trimesters is very strong, but in the third, states could pass all sorts of laws restricting the right.

0:13:38.2 Peter: Casey gets rid of this framework. The Court says, look, the trimester framework is medically outdated, and what really matters is viability. So rather than the three trimesters, you have two periods of time, pre-viability and post-viability. And according to the Court, according to Sandra Day O'Connor, the latest science shows that a fetus is viable around 23 weeks. We should note that that is pretty aggressive in terms of what the medical literature, especially at the time, but even now showed. We don't want to get into it too much, but that's pretty early, you know?

0:14:15.4 Michael: It's very early.

0:14:16.4 Rhiannon: That's ambitious. That's some sort of future Olympic qualifying fetus.

0:14:21.0 Peter: Right.


0:14:24.6 Peter: So what the Court's saying is that the period when states can aggressively regulate abortion should start at around 23 weeks rather than at the beginning of the third trimester, which occurs like 27 or 28 weeks. And moreover, while the Court in Roe had made it very difficult for states to regulate abortion in the first two trimesters, the Court in Casey changes the standard. They say that states can regulate abortion even before the fetus is viable, as long as they don't place a quote "undue burden" on the woman's right to choose.

0:14:54.9 Michael: Oh, what's that mean?

0:14:56.4 Peter: You might ask what that means, Michael. The Court says what it means is that you can't put a quote "substantial obstacle" between a woman and her right to terminate her pregnancy if she chooses.

0:15:07.6 Rhiannon: Okay, I have a follow-up question.

0:15:09.6 Peter: Now, you might ask, what that means. Was that your question?

0:15:12.0 Rhiannon: Yeah, what's a substantial obstacle?

0:15:14.6 Michael: I think that's clear. You don't think that's clear?

0:15:18.0 Peter: Yeah, unfortunately, that's where I run out of ways to explain it, because the Court doesn't provide a whole lot of guidance. As you might expect, the question of what constitutes an undue burden or a substantial obstacle is an extremely contentious issue in the ensuing years. So in short, Casey has narrowed the right to an abortion in two ways. The first is by taking the point in the pregnancy at which the state can start aggressively regulating abortion and making it at about 23 weeks rather than at about 28. And the other is that it makes it easier for a state to interfere with a woman's right to choose even prior to that 23-week cut-off. Whereas Roe essentially held that the right to choose could not be interfered with during the first trimester, and it could only be interfered within very limited circumstances in the second, the Court in Casey says, well, look, you can interfere with it whenever as long as you're not creating an undue burden. So using this new standard that it just made up and did not clearly define...

0:16:14.3 Michael: I just want to say, making up a standard and not clearly defining it, it turned out to be like a hallmark of Anthony Kennedy's jurisprudence.


0:16:23.1 Peter: Yeah.

0:16:23.4 Michael: I feel like that's... It's very much in his wheelhouse.

0:16:26.0 Peter: That's a good point. That's a good point.

0:16:27.7 Michael: This is like vintage Kennedy.

0:16:31.9 Peter: So using this new standard that it just made up and did not clearly define, the Court strikes down Pennsylvania spousal notification requirement saying that it presented a substantial obstacle to getting an abortion by giving the husband too much control over the decision. Cool, right? Makes some sense, I suppose.

0:16:49.0 Rhiannon: Sure.

0:16:50.4 Peter: But then the Court upholds the 24-hour waiting period, the informed consent rule, which requires doctors to detail certain risks of the procedure to the patient, and the parental consent rule for minors. In doing so, the Court effectively grant its blessing to states who want to use these tactics to make it harder for women to get abortions in the future. So I'd like to talk about the vagueness of this standard a little more. Again, the Court has created these terms "undue burden" and "substantial obstacle." You can't create an undue burden or a substantial obstacle for someone who wants to get an abortion. It should go without saying that those terms don't have any inherent meaning. The only thing we know about them for sure is that a spousal notification requirement violates them.

0:17:33.4 Rhiannon: Right.

0:17:33.8 Peter: Because the Court says that explicitly. But then the decision also holds that parental consent requirements for minors do not create an undue burden. So just telling a spouse is too much of a burden on the right to choose, but needing your parents to sign off on it is apparently not. I don't think I know what the fuck it means, then, I have to say that. I really don't. And I think it's worth noting what's actually happening here. The vagueness of these terms is sort of the whole point. They're designed to create wiggle room for states to implement abortion restrictions. Under Roe, the standard was relatively clear. You really couldn't fuck around with abortion rights in the first two trimesters, certainly not in the first. But now, as long as you don't create an undue burden on the person seeking the abortion, you totally can. And since no one really knows what that means, it opens the door to all sorts of bullshit, right?

0:18:24.2 Rhiannon: Yeah.

0:18:25.7 Michael: Yeah.

0:18:27.0 Peter: And all sorts of bullshit is exactly what we get. In the ensuing years, really up until the present, there is just a constant game of chicken between conservative states and the courts, where the states can cop some new restriction on abortion rights, and then the courts evaluate it, and conservative courts approve them and liberal courts toss them out. And the vagueness of the standard allows conservative judges to uphold all sorts of ridiculous laws that serve no purpose other than to make it difficult to get an abortion.

0:18:57.0 Rhiannon: Yeah, exactly, and in terms of the laws that have been passed in the wake of Casey, you can sort of imagine the whole gamut, the whole range of restrictions that could be applied, least to most draconian. So for example, Alabama in 2019 passed a law making doctors who perform abortions subject to life in prison. And they also at the same time, banned all abortions from the time quote a woman is known to be pregnant, with no exceptions, right?

0:19:29.9 Michael: How can you have an abortion before you know you're pregnant?

0:19:33.4 Peter: That's a big loophole. You just go to the doctor, you say, "Don't tell me, but if there's one in there... "

0:19:39.4 Rhiannon: Proactive abortion.

0:19:40.9 Michael: Get me an abortion, and if there's nothing there, no harm, no foul. And if there is...

0:19:44.0 Rhiannon: You need a prophylactic abortion, yeah. Five other states, Georgia, Ohio, Kentucky, Mississippi and Louisiana, they've all passed bills which prohibit abortions after about six weeks into a pregnancy, and of course, it should be noted that many, many people do not know they are pregnant six weeks into a pregnancy. Iowa's bill banning abortions after heartbeat detection, that was struck down in 2019. And just want to mention that because, like Peter said, lawmakers are passing these bills and enacting these restrictions on abortion access and on healthcare, knowing in many instances that they are going to be struck down, but they are still persistent in doing so.

0:20:26.7 Michael: So do you think subjecting abortion providers to life in prison, that's clearly an obstacle, but would we say it's a substantial obstacle to getting...

0:20:35.7 Peter: There's no way to know.

0:20:40.1 Michael: It's definitely a burden, but is it undue? I for one cannot say.

0:20:44.9 Rhiannon: Right. And despite the existence of some courts who will strike down these ultra-restrictive laws right out the gate, the Guttmacher Institute says that in the first five months of 2019, 42 abortion restrictions were enacted nationwide by state legislators. And these restrictions, like we said, they take many forms. It can be criminalizing abortion providers, it can be requiring higher standards for abortion-providing facilities...

0:21:13.5 Peter: Which by the way, has included such ridiculous laws as those restricting the physical dimensions of abortion clinics. Like it gets truly absurd.

0:21:21.7 Rhiannon: Exactly, exactly. And it includes as well requiring waiting periods, requiring counseling, requiring sonograms, all sorts of ticky-tack restrictions on a person's full access to abortion healthcare.

0:21:36.8 Peter: Yeah, and we mentioned that in Casey there's an informed consent rule, and these are something that states have taken advantage of, where the whole point is, well, what can we make a doctor tell a patient that would dissuade her from getting an abortion, and how ridiculous can you get with that. And there'll be requirements that doctors say all sorts of, like saying unscientific is probably the nicest way you can put it, things to a woman who is trying to get an abortion, and it gets really absurd, there's like... At some point, once the technology is there, they're gonna just... Remember at Coachella, when there was the Tupac hologram? It'll be like that, but with your future child. Like, here he is.

0:22:15.1 Michael: I was gonna say, they're gonna take the sonogram image and then like age it up. It'd be like, here he is as young man, you know, track star, getting laid all time, living it up.

0:22:30.8 Peter: Here's a video of a little league game, can you just sign here saying that your future child will never experience that?

0:22:38.3 Rhiannon: Right, and to bring it back to seriously what's happening on the ground, some 27 states currently require that a person seeking an abortion wait for a period of one to six days before getting the actual procedure done, because they have to receive some sort of required counseling before getting the abortion, and 14 states require that a patient take two trips to the clinic, one trip for the counseling session and then come back on a different day to get the abortion procedure. This informed consent stuff, it's also related to mandatory ultrasounds, which are sometimes mandatorily transvaginal, and those are required by 12 states, while 14 others require patients to be supplied with information about what an ultrasound would show them.

0:23:31.2 Rhiannon: In Texas, for example, the sonogram law requires that the doctor perform a sonogram and also that the doctor display the sonogram images, make any heartbeat audible to the patient and verbally explain the results of the sonogram. You can opt out of some of these things as a patient, but again, that would require your sort of knowledge about your rights in this procedure ahead of time, if you know that you can opt out at all.

0:23:58.1 Peter: Yeah, the whole point is to make it an emotional nightmare...

0:24:01.1 Rhiannon: That's right.

0:24:02.1 Peter: And a logistical one.

0:24:02.1 Rhiannon: Exactly, yes.

0:24:04.3 Michael: Right. Even if each individual law we're describing, well, some of them are clearly undue burdens, but even if a lot of the individual ones we're talking about are not themselves substantial obstacles, like the kaleidoscope of restrictions taken together clearly creates a very difficult path, like all together it makes it much harder and much more emotionally trying, it drags out the process, it takes weeks, what could take a day. It just makes everything more difficult and it makes it more of a trial for the person seeking an abortion. And that's the point.

0:24:40.8 Peter: And if these things didn't create a substantial obstacle to getting an abortion, then the legislators wouldn't pass the laws. It's the whole point, right? If they did not somehow drive down abortion rates by making it too difficult or too just emotionally challenging to get an abortion, the states wouldn't bother with them.

0:25:01.8 Michael: Yeah, that's a powerful argument. But I really just wanted to say the kaleidoscope...

0:25:05.2 Peter: Yeah, it did sound good.

0:25:09.4 Michael: Really.

0:25:09.5 Rhiannon: Yeah. And then that's not even getting to the sort of myriad laws that are enacted by conservative state legislators that are sort of trying to further stigmatize and kind of culturally attack abortion. And so, for example, in 2019, Texas, again, passed a law criminalizing abortion providers if they do not provide medical treatment to a fetus, if the fetus is born after an abortion. If that doesn't make sense to you, you're okay. You're smarter than Texas legislators. It doesn't make sense, abortions in Texas are banned after 20 weeks and a fetus isn't viable until some time after that, so the law is nonsensical. It only serves to sort of culturally vilify what lawmakers are identifying as these scary parts of an abortion procedure that don't even exist. Louisiana passed a law creating a civil cause of action for abortion-related damages, including damage to the unborn. If you're paying attention, an abortion always has damage to a fetus.

0:26:18.3 Peter: Hopefully, it's total, that's I believe the point.

0:26:23.6 Rhiannon: And then Oklahoma passed a law, which was later overturned in the early 2010s, I believe, but their law required doctors to report information from a questionnaire about every woman who received an abortion and required them to report that information to the State Health Department for publication in a public online registry, so there are also all of these ways that state lawmakers try to stigmatize people seeking abortion healthcare, not just that they make the abortion procedure itself more difficult to obtain.

0:26:57.0 Rhiannon: Again, I don't think it can be sort of overstated or over-emphasized how much lawmakers are not only directing restrictions at the patient, at an individual seeking an abortion or the doctor providing an abortion, but also at facilities that provide abortions. There's a whole kind of category of laws known as TRAP laws, that's Targeted Regulation of Abortion Providers, and these kinds of laws sort of impose arbitrary and difficult standards on facilities that are ostensibly aimed at improving the safety of these facilities and abortion providers, but realistically, these laws do nothing to make an abortion procedure or abortion providers more safe. I think it's worth noting, because we haven't yet, that abortion is already an incredibly safe procedure.

0:27:49.7 Michael: Absolutely.

0:27:50.3 Rhiannon: And it is nothing like having surgery done or other much more dangerous procedures that you could get from a doctor, and so a lot of TRAP laws seek to treat abortion-providing facilities as if they are surgical centers or sort of much more complicated healthcare providers. And this is how you end up with several states in the US right now that only have one clinic that provides abortions.

0:28:17.1 Michael: Yeah, and I just want to note about that stuff, that there's something very sort of perverse about it, which is that Roe v. Wade, this case that is like putting a woman's autonomy front and center, says that one of the only bases for regulating abortion is to protect the health of the woman. So again, putting the pregnant individual first, and states are latching on to that to reduce autonomy, to reduce liberty, and to make it harder for them to make choices about their body.

0:28:51.8 Peter: And legislating in such a way that makes it clear that they have absolutely zero concern with women's health.

0:28:58.2 Rhiannon: Exactly, exactly.

0:29:00.0 Michael: We've talked a little bit about how jurisprudentially Casey was a victory for the right, in that it sort of opened this door. In a way it's a major political victory for the right as well, think about how many politicians have had the opportunity to run on all these laws that we're describing. For the last 30 years, Republicans have been making their bones on, we're gonna elect more and better judges, we're gonna lose all those fucking squishes who betrayed you, and we're gonna get true believers and we're gonna pass all these state laws to restrict abortion. And it has been just like the golden goose, or it's not a golden goose, it's a goose that lays golden eggs, but it's been that goose, we all know.

0:29:42.8 Rhiannon: It's been that goose.

0:29:45.1 Michael: That goose. You know what I'm talking about. It's the gift that keeps on giving or some other trite saying that we all understand. It's been 30 years of political benefits for them.

0:29:55.0 Rhiannon: Right, I think that's exactly right. Note how they are enacting laws that they know are very likely going to be overturned, but then they can turn around and tell their constituents, look, I did what I said I was going to do when I ran, which was try to curtail this awful thing that these awful judges keep allowing.

0:30:13.3 Peter: Yeah, it's created the archetypal single-issue voter, the pro-life voter who just votes for Republicans because they want Roe overturned. To say that that has been beneficial to Republicans is to put it mildly, I think.

0:30:26.3 Michael: Right. I honestly think if they thought they could get away with it, the Republican Party would love to do this for another 30 years, but I think at some point you have to deliver on those promises, and I think we're sort of at that point.

0:30:39.9 Peter: Right. So circling back to the decision itself, I think we would be remiss here if we did not mention the dissents in Planned Parenthood v. Casey. Both Rehnquist and Scalia file one, and their basic premise is the same, they think that states can essentially regulate abortion as they deem fit, which would be either the functional or the literal end of Roe v. Wade. Scalia also says that the regulation of abortion is one of the "long-standing traditions of American society," which is absolute bullshit, just like pure myth-making.

0:31:18.9 Michael: Just garbage.

0:31:20.3 Peter: Like we said in part one, the state laws that outright banned abortion came to be in the 20th century. Now, of course, there were some less onerous regulations before that, most of those, the latter half of the 1800s...

0:31:31.8 Michael: But Roe v. Wade also allowed regulations.

0:31:34.7 Peter: Yeah, that's true too. But I'm gonna keep beating this drum because it's so important to understanding the jurisprudence of someone like Scalia. He is portraying a fake version of history. The reactionary agenda is about stifling social progress, and in order to do that, they need to harken to and canonize a history that doesn't really exist, so that they can claim that the left is interfering with a long-standing sociopolitical order. So if you're looking at this holistically and in a narrow sense, Planned Parenthood v. Casey is a loss for the pro-lifers, they thought they had a chance to overturn Roe, but the moderate conservatives band together to uphold the basic right to an abortion.

0:32:16.1 Peter: But at the same time, as we've sort of detailed, Casey presents them with an enormous opportunity that they then take advantage of. The strategy for fighting abortion in the courts shifts its focus. Previously they were focused on overturning Roe and all of their challenges were aimed squarely at Roe, but the new undue burden standard in Casey allows them to do something else. Rather than killing Roe in one fell swoop, they can pursue a strategy of death by a thousand cuts. And all of those state laws that impose those new and creative burdens on women and providers are the center of that strategy.

0:32:51.7 Peter: So Casey's ultimately the end of an era, they are moving into something that's a little more complex, and that's a strategy that involves all sorts of legal angles, but also a political and social sort of messaging.

0:33:06.6 Rhiannon: Right. And as we've said, the story of Roe, the story of Casey, these are stories not just about a conservative legal movement, but sort of the conservative cultural movement, the conservative PR movement. So after Casey, a new kind of conservative PR strategy develops for trying to prove that abortions actually hurt women. This is the era of the culture wars, it's the '90s, it's a time when Sally Jessy Raphael and Oprah have talk shows where they're pitting people against each other to have these public cultural debates. Here on one side, we have a woman who got an abortion, and here on the other is some psycho-freak religious leader who thinks she's going to hell.

0:33:51.1 Rhiannon: And Norma McCorvey, you'll remember from episode one that McCorvey is the unnamed plaintiff, Jane Roe in Roe v. Wade, Norma McCorvey is sort of back center stage in these culture wars. Beginning in the late '80s, Norma McCorvey had started to ally herself with conservative religious leaders and had begun to argue in the media that she regretted her abortion and that she had been pressured into getting an abortion by the lawyers in Roe v. Wade, and so broadly, women regretting their abortions became this sort of larger PR strategy, and it becomes incorporated into the conservative legal argument about abortion.

0:34:36.2 Rhiannon: And you see that, because in the next big case on abortion, Carhart v. Gonzales, women regretting their abortions became a justification for the state protecting women and upholding the abortion ban that was at issue in the case. Carhart v. Gonzales was a 2007 case which upheld the so-called partial birth abortion ban. And in that case, you see Justice Kennedy sort of incorporating that one of the risks of getting an abortion is that women will later regret having done so.

0:35:14.2 Michael: Right, and I think this is a case where you can really see the sort of complete merging of conservative legal thought and conservative PR campaigns. There are parts of this opinion that read like the types of flyers that Republican candidates leave around church parking lots around election time, it's truly disgusting. I'm going to read a passage here, I want to drop like a trigger warning, because I think it's pretty graphic, but so Kennedy says, after sufficient dilation, the surgical procedure can commence, and he says the doctor grips a fetal part with forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it's pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may take 10 to 15 passes with the forceps to evacuate the fetus in its entirety. It's lovely.

0:36:21.1 Rhiannon: Yeah, and it's important to note, I think, that partial birth is not a medical term. Right, that's a political one. It's a confusing and vague term, and it's confusing and vague on purpose, D&E abortion procedures, as they're actually known in the medical world, dilation and extraction, are exceedingly rare and late in pregnancy, the vast majority of which are only used when a woman's health and life are gravely at risk.

0:36:49.3 Peter: Kennedy's opinion in that case is, I think, like Michael said, just the complete convergence of extreme fringe right-wing rhetoric about abortion and the law. His opening to that opinion is the rhetorical equivalent of those fucking banners that they drive around Washington DC with like the most graphic whatever, dead fetus that they can find a picture of, that they like Photoshop to look more like a baby or whatever. One interesting thing about that case, Carhart, is that Congress, when passing the so-called partial birth abortion ban, found that partial birth abortion is never medically necessary, and therefore a health exception that would allow for the procedure where the health of the mother was in danger would not be necessary.

0:37:38.5 Peter: This was despite a huge amount of evidence that the opposite was true, including testimony and submissions from major medical organizations like the AMA, and Justice Kennedy in the face of all that, basically says like, look, who are we to question Congress here? So in part one, in our first episode, we talked about Justice Blackmun's embrace of medical science in Roe v. Wade, where he relied on his best understanding of medical expertise to formulate the trimester framework. And I'd like to harken back to that because it contrasts pretty starkly with both O'Connor's pseudoscientific holding that viability begins at 23 weeks in Casey, and then the combination of propaganda and pseudoscience you have in Carhart from Justice Kennedy in 2007.

0:38:23.7 Peter: I think that the scientifically questionable holdings that you see from conservatives in these opinions can be traced to a single trend. There are several issues where conservatives have found themselves on what we might call the wrong side of the science. And decades ago, they realized that this was an issue, and in most cases, they thought it was because the people in charge of the science are biased liberals, so they talk about liberal universities and shit like that, all the time. So how do you combat that? You fund your own version of the science, just like the fossil fuel industry has poured money into trying to downplay the impact of climate change, for example, pro-life institutions have invested in research designed to show that abortion is harmful.

0:39:07.6 Peter: So with that research, they have constructed an entirely separate parallel universe of facts, and I think this is important because it's easy to look at something like, say, the morons who stormed Capitol because they think that the election was stolen and say, well, they're living in an alternate reality. But the issue on the right isn't limited to fringe conspiracy theorists. There are active efforts by sophisticated actors to fund science that is geared towards reaching politically conservative conclusions, which can then be leveraged by people in power, like the Supreme Court Justices, whenever they need something that looks scientific to point to to justify their positions.

0:39:49.4 Rhiannon: Yeah, that makes me think of two things, actually. One is that this really highlights how we've said in past episodes before that judges are kind of all too ready to act as if they are speaking with authority on issues, industries, facts on the ground, that they are not in fact experts about. And so the judiciary as an institution is sort of perfectly primed to take this hand-off from clearly pseudoscientific, clearly conservative-biased groups and put that into case law as if it is scientific fact.

0:40:26.5 Peter: Right. And I think the other side of that is another thing we've touched on, which is the Court's unwillingness to sort of question the motives of lawmakers at times when it makes perfect sense. Here you have Congress passing something called the partial birth abortion ban, already a politically charged term, and saying, well, we don't think the health of the mother is at stake here, despite the fact that there's obviously a medical literature saying there is. Now, the real reason for that is obviously because the conservatives don't give a shit whether the woman's health is at stake, and a Court that was being honest might give that some thought before they ruled on it, maybe, just like a little bit. I think that would be useful.

0:41:03.9 Rhiannon: Right, right. The other thing too is how this shows, this underscores, really, how they are all too willing to use misogynistic and paternalistic ideas in service of their policy preferences, so incorporating into legal decisions that the abortion procedure is scarier than a woman would know, or more dangerous than a woman would know and that she needs the state to protect her from these dangerous procedures. All of that is really infantilizing, even sort of erasing a woman's autonomy in making decisions about her healthcare.

0:41:42.4 Michael: Right, and this sort of demonization of abortion and making it a moral failing seeps into liberal rhetoric as well. This is the era of the apologetic defense of abortion, where you wanted it to be safe, legal and rare, right. This sort of back pedal on it.

0:42:00.5 Peter: Just like conceding that it's bad almost. You want it to be rare, it's bizarre. So you're seeing this sort of broader political messaging penetrate the consciousness of the Supreme Court, right, and that sort of takes us forward to the last several years, and we've had a couple of big cases in the past five years, right?

0:42:22.4 Michael: Yeah, yeah, sort of the two big... Two of the most recent cases are Whole Woman's Health v. Hellerstedt, and June Medical Services v. Russo. And they go together and they work as sort of a one step forward, two steps backwards for abortion rights sort of progress. So in 2016, you have Whole Woman's Health, which was about a Texas law that required abortion providers to have admitting privileges at nearby hospitals and have their clinics comply with standards for ambulatory surgical centers. And the logic here was that like, look, if there are complications within abortion you need to have admitting privileges to get the patient into the hospital quickly, and if you're doing a procedure like abortion, you need to have high standards like a surgical center should. And this case was a win for abortion rights.

0:43:18.8 Michael: Liberal Justice Stephen Breyer, who we don't talk a lot about...

0:43:24.4 Rhiannon: Yawn.

0:43:25.3 Michael: 'Cause he's kind of like unseasoned chicken breast. He wrote the opinion, joined by the other liberals and Justice Kennedy. And Breyer basically said, look, requiring this of abortion providers, it's definitely a substantial obstacle. It's a big hurdle. Those are tough standards to meet, admitting privileges are difficult to maintain, especially hospitals require quotas a lot of times, and since abortion's a safe procedure, they're not going to meet those quotas, 'cause they're not going to bring many patients there.

0:43:56.5 Rhiannon: Exactly. If the test is whether or not it's an undue burden, these requirements on abortion providers make the burden undue, for sure.

0:44:04.8 Michael: Right. He says standing alone they're big obstacles, but they're especially undue because they don't further any state interests. He sees this as a balancing test, like how high is the burden and how much does it serve the state interest, and he says these don't serve any of the state interests, right, like less than 1 in 1000 abortions require someone needing to go to the hospital because of complications. And if that happens, you don't need admitting privileges. If you bring someone to the hospital, they're going to seen, right, like it's not an issue.

0:44:37.8 Michael: And similarly, with the current standards, if you're only having complications in 1 in a 1000 or less surgeries, clearly you don't need higher standards, clearly you don't need the surgical center standards. So this is a good case. It's a good win. Then, of course, Justice Kennedy retires and he's replaced with Brett Kavanaugh, and you can imagine what Brett thinks of the Constitution's protections of women's bodily integrity and autonomy.

0:45:05.4 Rhiannon: Right. He don't like it.

0:45:06.1 Michael: No. No, that's not his style. And so the conservative movement saw an opportunity here. They're like, oh, that fucking asshole Kennedy's gone. We've got our guy. And so with this new Court, they bring literally the same case, it is, again, an admitting privileges case that's functionally, if not almost to the detail identical, this time in Louisiana, instead of Texas. And so they think this time we're gonna get it, 'cause all the dissenters are still on the Court and now we have Kavanaugh, so it's gonna be 5-4 going our way. But Roberts breaks ranks and he says, look, deciding the same case a different way, just like three years later, is ridiculous. That's like abandoning any pretense of the rule at law at all.

0:45:54.4 Michael: If precedent means anything, it means that over this short a time frame, the law should be the same, and the law says that an admitting privileges requirement is a substantial obstacle, so it's a substantial obstacle and that's the end. But he did write separately from the other Justices, and his singular opinion, writing from one, is actually the opinion that creates a precedent under the Court's arcane rules about which opinions do and do not create precedent. And in his opinion, he narrowed the right established in Whole Woman's Health and he said, look, it's not a balancing test, Breyer, I know you love balancing tests. Breyer loves balancing tests, by the way, we don't talk about him a lot, but he's like... It's like the bird man rubbing hands GIF when sees a balancing test, he gets really excited, it's like his thing.

0:46:42.0 Rhiannon: Well, what he needs to be balancing right now is his need to retire, so let's hope he balances that in everybody's favor.

0:46:49.3 Peter: He's currently balancing on the precipice of his own death.

0:46:54.7 Michael: But so Roberts says, fuck that, it doesn't matter whether the law furthers any state interests at all, there's no equation here, there's nothing on the other side of the balancing test. The question is whether the obstacle is substantial. That's it, end of story. So minor obstacles that serve zero state interests are still constitutional, it doesn't matter, a 24-hour waiting period, that doesn't do anything for the state, doesn't improve the women's health, it doesn't protect potentiality of life, constitutional, 'cause it's a minor burden, it's not a substantial obstacle.

0:47:27.8 Peter: So what Roberts is basically saying is, look, you can't just come back four years later and ask me to rule a different way in the same exact case. However, I would like to change some details.

0:47:41.7 Rhiannon: Right. While I have you.

0:47:44.1 Michael: And look, I don't mean to belabor the point, 'cause obviously we think formalistic reasoning is always secondary to like what's an outcome-driven process, but what this does is it makes it easier for them to reach the outcome they want, like in a 24-hour waiting period law, for example, it's much easier to write that like, look, it's not an undue burden, and we don't have to balance that against any state interests.

0:48:06.7 Peter: Also, just to get formalistic for a second, there's no way that you can have an analysis of what is a burden on someone without it being inherently a balancing test.

0:48:16.8 Michael: Well, especially whether it's undue.

0:48:19.4 Peter: Like that's the whole point.

0:48:20.7 Michael: What makes it undue is precisely that, the burden outweighs the benefit.

0:48:24.6 Rhiannon: Exactly.

0:48:26.9 Peter: It's nonsensical, whatever.

0:48:28.3 Michael: So another example that will probably be coming up soon is this recent Ohio law that requires individuals getting an abortion to decide how the fetal remains will be disposed of, burial or cremation. Breyer would say, look, whether or not this is a substantial obstacle is sort of a side issue 'cause this confers zero benefit to the state, so it's unconstitutional. Roberts doesn't have to come up with a reason for why this is a benefit to the state, he just gets to say, look, that's not a substantial burden, you've just got to sign a form, what do you care?

0:49:02.0 Peter: What does it matter whether your child is buried or cast into the wind above Mount Olympus? Those are the two options available to you.

0:49:11.8 Rhiannon: So fucking stupid.

0:49:12.8 Michael: There's one more thing I want to note about June Medical. I'm trying to move on from that. The final thing worth mentioning is Roberts leads off by saying, look, hey, nobody's asked us to overturn Planned Parenthood v. Casey here, so we've just got to run with it, which a lot of people read as him inviting the right to ask them to overturn Planned Parenthood v. Casey.

0:49:35.1 Peter: And do away with Roe.

0:49:37.6 Michael: Right, in the process. And sure enough, this month, two judges on a federal appellate court filed a concurring opinion where they said, look, this law clearly complies with Planned Parenthood v. Casey, but hey, Supreme Court, you should overturn that, thanks to advances in science viability is much earlier now and we should have far more regulations pre-viability and blah, blah, blah, blah, blah. And so you can already see it bubbling up, it's not hard to tell where this is going.

0:50:09.4 Peter: Yeah, so let's turn towards the finish line, shall we?

0:50:12.3 Rhiannon: I'm exhausted.

0:50:15.3 Peter: One of the major themes of our podcast is that conservative legal doctrines are simply a method for reaching conservative political outcomes. After the liberal wins in the courts over the mid-century, conservatives embraced a strict reading of the law that rejected the validity of those cases. What explains that better, that they were all suddenly convinced of a new academic framework, or that they didn't like those liberal outcomes? After Planned Parenthood v. Casey, conservatives aggressively argued that arcane restrictions on abortion rights should be upheld. What explains that better, that they also happen to interpret the analytical framework laid out in Casey in the exact same way, or that they are opposed to abortion and trying to limit it? You don't need to twist yourself into knots here, the simplest answer is staring you in the face.

0:51:02.3 Peter: A good thing to know. We mentioned that Norma McCorvey, Jane Roe herself, spent much of the '80s and '90s publicly stating that she regretted her abortion. Shortly before her death, she spoke publicly saying that, in fact, she was paid by right-wing activists to say that stuff. She didn't regret her abortion...

0:51:22.2 Rhiannon: Right, exactly. She said, I took their money and they'd put me out in front of the cameras and tell me what to say. That's what I'd say. But actually, if a young woman wants to have an abortion, that's no skin off my ass, that's why they call it choice.

0:51:34.1 Peter: Perhaps, perhaps a lesson there about what they're willing to do to further their message. The slow evisceration of abortion rights has taken its toll on this country. There are several states that are down to a single abortion clinic, the number of independent clinics in the country has fallen 34% since 2012, a total of 41 clinics have closed in the past two years alone. Many states tried to use COVID as an excuse to shut down clinics just this past year. We are unequivocally at a point where the right to an abortion is weaker than it has been since Roe was handed down.

0:52:11.1 Rhiannon: Yeah, and I think there is an extent to which, we said in the first episode that in many ways materially on the ground, we are at a place today where we were just before Roe v. Wade was handed down, meaning that an individual's geography and their wealth dictate much more their access to abortion providers than anything else. So I think it's really important to say that abortion restrictions disproportionately hurt the poor and people of color. The US has the highest maternal mortality rate of any developed nation, and in the United States, black women are three to four times more likely to die in pregnancy or childbirth than white women, making abortion more limited.

0:52:58.4 Rhiannon: Abortion restrictive laws make pregnancy more dangerous, and that is profoundly significantly so for people who are poor, do not have geographic access to abortion healthcare providers or the wealth resources to reach that kind of healthcare. And again, want to say too that trans people face massive barriers to accessing healthcare and reproductive healthcare is even more tenuous for trans folks, depending where they are, and again, depending on their income and wealth. And so abortion restrictions hurt people across the country disproportionately, and that burden falls on different groups of people much more substantially than others.

0:53:42.6 Michael: That's right.

0:53:43.1 Peter: One thing we said last week that I want to reiterate here again, part of the reason that Roe is so weak right now is that so many liberals have essentially conceded that it was poorly reasoned. Roe v. Wade, in my view, was no more poorly reasoned that the dozens of lines of cases that conservatives believe are well-established law and binding precedent. If you believe that the First Amendment can protect shadowy PACs who want to funnel billions of dollars into political advertising; if you believe that the Second Amendment, written at a time when our military consisted mostly of scattered militias and it took a solid minute to load a single bullet into a fucking musket, protects the rights of every dipshit who wants one to carry a Glock 9, then you might just have to admit that our right not to have our liberty infringed protects the right to an abortion. I don't think that's a greater leap than any of those hallmarks of conservative jurisprudence.

0:54:36.8 Rhiannon: Absolutely.

0:54:38.5 Michael: That's right.

0:54:40.1 Peter: So I think everyone wants us to answer the question of whether Roe will be overturned by this Court, and we don't know. I think it's hard to say whether the Justices think it's worth the risk politically, the potential flak they might take to overturn Roe v. Wade. Like we mentioned, the state of abortion rights in this country is pretty weak. It's genuinely at that point where there are arguments from activists and academics saying that it would be better for the pro-choice side if Roe were overturned, because it would take away the political momentum from the right and swing it back to the left and allow for more organizing, etcetera, around the issue that would in the long term expand abortion rights. I'm not sure that I agree with that, but I think that says something about where the right to an abortion is in this country right now.

0:55:29.1 Michael: Right. I do think there is some cause for optimism, though. Just the first few days of 2021 show that if they did overturn Roe v. Wade, I'm very confident we could get a mob of people to storm the Supreme Court. I'm just kidding. Just kidding. I would never share my revolutionary plans online.


0:55:52.4 Rhiannon: Yeah, you know, I'm not sure that I agree with the argument that it might be better for the left that Roe v. Wade be overturned, just because of the reality on the ground that we just talked about, right? Considering that 10 states already have trigger laws, which are laws that say that abortion bans will go into effect automatically in those states if Roe v. Wade is overturned. It's very hard to agree with this kind of accelerationist argument that things getting worse for millions of people in the country over the short term will be better long term. I'm just not behind that, when as we said, the material reality is that we are in a pre-Roe context already. That millions of people do not have access to the healthcare that they need because of where they live, and because of money resources that they don't have.

0:56:50.4 Michael: I've never been a big proponent of accelerationist arguments regardless, but I think if anything, the last four years should show like real monkey's paw. You don't know what you're accelerating towards.

0:57:01.4 Rhiannon: Exactly. Yes.

0:57:04.5 Peter: Yeah, you're gambling with human suffering at the end of the day.

0:57:05.6 Rhiannon: Right, that's right.

0:57:06.8 Michael: For one, you're volunteering other people's pain, and for another... For uncertain rewards.

0:57:12.9 Peter: Yeah.

0:57:13.8 Rhiannon: Exactly.

0:57:14.3 Peter: The one lesson you can take away from the status quo is that the left and liberals need a new position. They need to re-evaluate the status of abortion rights in the country, start with a defense of Roe v. Wade, start with a defense of abortion as a liberty, build out the equal protection argument that abortion is protected by the Equal Protection Clause, work on those legal arguments and turn towards the future and think about how you can take a status quo where we are unquestionably losing and turn it into small gains, right, here and there. We don't have the Court for the foreseeable future. That needs to be taken into account. But there are victories to be had. I think to a large degree, not everyone, and I don't want to cast aspersions, but large segments of left and the center left have been sort of resting on its laurels with respect to abortion because of Roe v. Wade for a long time, and I think there is space for a larger chunk of the left to organize around it.

0:58:16.9 Rhiannon: Right, absolutely. I think there's a lot of potential for organizing and the PR strategy, right? Just like the conservatives did. And the PR strategy should be focused on normalizing abortion again as necessary healthcare and normal healthcare for millions of people. You know what, I'll volunteer. Put me in charge of the PR. I got an abortion. It was fucking awesome. I wasn't sad about it, I'd do it again. Fuck you.

0:58:44.8 Michael: Hell, yeah.


0:58:47.3 Michael: Hell, yeah.

0:58:50.6 Peter: Next week is Morse v. Frederick, a free speech case about a student who held up a sign that said "Bong Hits 4 Jesus."

0:59:00.7 Rhiannon: Finally, weed heads unite.

0:59:02.8 Michael: Yeah.

0:59:02.9 Peter: Justice Roberts did not like that. That's the basic lesson. Follow us on Twitter @fivefourpod. Tell your friends.

0:59:14.3 Rhiannon: Go to our website,, click on Merch, check it out. We got lots of cool stuff.

0:59:20.5 Michael: Buy three shirts, several masks.

0:59:23.9 Peter: Enjoy your return to brunch. Welcome, President Biden.


0:59:31.5 Rhiannon: Stupid.

0:59:32.6 Peter: In case there is a riot on Inauguration Day, let it be known that 5-4 pod opposes all violence from protesters as well as from the state. We also oppose all commentary about riots on both sides. Does that cover all of our bases? Now, we cannot be [0:59:52.3] ____ for this, whatever happens.

0:59:56.9 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our themes song is by Spatial Relations.