Hi everyone, I'm Katie Curic and this is next question. Something major happened this week breaking news out of Washington, an unprecedented leak from the Supreme Courts the draft opinion, which shows its conservative majority of justices is ready to overturn Roe v. Wade. The Court confirmed the document is authentic, but says it does not represent a decision nor the final position of any justice. This could be the most consequential opinion in decades. Hundreds of protesters rallied outside the Supreme Court Monday evening afternows of the Court's draft opinion broke, and those protests continued all over the country on Tuesday, including one right here in New York City. A couple of my producers and I headed to Fully Square in Lower Manhattan so we could see and hear how abortion rights supporters are responding to the shocking is Tell me why you wanted to come down here today? Not only because I've had an abortion, but my daughter is twenty one and this is the world she's in right now. So how could we not be here. Anywhere where more than two people are gathered for the sake of reproductive rights is a gathering I want to be at. I came out because I love women. I love the rights to their their own autonomy. I love the rights of humanity, and I love the laws of humanity as well. It was important that people were in the streets today, but this cannot be another one day protest where we register our descent and then go home and let them strip us of our right to be fully human. And if I asked you about your side, it says I survived in a legal abortion in Birmingham, Alabama, in nineteen sixty nine. I woke up this morning I felt like I had time traveled. I can't believe we're going back to this. We're just regressing so far. And do you remember what it was like the Grovy Way was decided? And can you describe it for people who don't. I can remember being in college and knowing of girls in my college who had back alley abortions, and some of them suffered grave consequences as a result. There are people finding out that they are pregnant and they don't necessarily want to be, or they didn't plan to be, or they're thinking about what they're gonna do um and I can't imagine being in that situation. Right now at the end of the day, like a lot of people are lonely and feel like they're alone in a decision or in a problem or uh So, coming to where there's like thousands of people are like hundreds of people is just like reaffirming the fact that we are not wrong. I don't believe this is an accident, and I don't believe that this is all of a sudden So for me, Texas was the wake up call and since then it's been pretty rough for my mental health. How are you guys feeling after this gathering? It feels great empowering. Also, like we also know that coming here is just not the end of it. That's why Thursday we're calling for nationwide strikes, no school, no work. You know, if you're calling sick to work, say you're sick of the patriarchy. We're both in law school right now, and so it's important for us to come out here and do this and do our civic duty to protest and hopefully use our legal careers to undo whatever the hell is happening right now. This is the biggest privilege to be here for democracy, for the rights of women. I grew I raised my children in South in Atlanta, and I just moved to New York and this is how it's supposed to be likely here. I am any general call to action. This is a fine alarm fire of my friends. This is a time to act, and this is not the time to be silent, because silence is right now when ree poem rights are under attack, what do we do? The news of the leak draft and its language was stunning, but the fact is it wasn't unexpected given the courts conservative majority. In fact, in anticipation of the official ruling which is expected to come down in late June, my producer Lauren Hansen, and I have been busy putting together an in depth and nuanced dive into the history and future of abortion access in this country. We've talked to countless people on the topic, abortion doctors, clinic staff, activists on the ground, reproductive justice leaders, historians, people who have had abortions, and so many more. It's been months in the making and it's coming out in just a few weeks. In the meantime, today, right now, we need to address the big abortion news this week, and to do so, we connected with one of the legal experts from our series, Mary Ziggler. Mary not only helped us understand the league, but what the draft actually means for the upcoming road decision. It feels kind of cavalier. It feels as if these justices are are siloed right from people who disagree with them in ways that are consequential. Um, and that we see unfolding. Now we'll have more with Mary Ziggler right after this. Mary Ziggler is one of the foremost experts on the long history of abortion and the law. So, Mary, have you had a chance to look over the draft opinion? Yeah? And what was your reaction? Um? I mean, in some ways, it's not surprising given what we heard at the oral argument in December. This is sort of what I was expected at the same expecting at the same time, I think I kind of can't help but be surprised because I spend a lot of time as someone who studies this talking to people with different views on abortion, and anyone, regardless of their opinion on abortion, should understand that what this is is going to be a very big deal for a very lot of people. Um. And this opinion, it feels like it's certain by people who think this is an easy decision this is not really something that requires a lot of soul searching. UM. And that's really really striking. I think it feels kind of cavalier. Um. It feels it feels as if these justices are are siloed right from people who disagree with them in ways that are consequential, Um that we see unfolding now. Politico called this draft a quote full throated, unflinching repudiation of the seventy three decision. Do you agree? Oh yeah, there's no question. I mean it's I don't know how much more full throated or repudiation you could have, so that that characterization of the draft is absolutely right. Having said that, how close will the opinion itself resemble this draft? Is there a chance that the language that's Justice Alito used in writing it could be softened or altered to be less of a repudiation? Absolutely? I mean this draft is from February. UM. We know historically when UM planned Parenthod versus Casey, the Court abortion decision UM came out. There were leaks that reported the Court was going to reverse Row, and we know at least one justice changed their mind on that matter. Between the time of those leaks and the time of a final decision. So it's it's even possible the votes don't come out the same way. UM, I would be surprised by that, But I think it's it's more likely that some of the language in this opinion the final opinion may change or be softened. Um. The effect of the leak is actually interesting because you could imagine some of the justices being more reluctant to make those changes because they don't want to be perceived to be caving to public pressure. So how the leak ultimately um shapes what's going to happen in terms of the final opinion is is a really interesting question given the makeup of the current court. Even if Chief Justice Roberts uh does not agree with this, it is still potentially and likely a five for decision, is it not. It is unless Chief Justice John roberts decides that for the good of the Court he's going to join the majority to make the court look more unified. But I mean, I doubt that that would change people's perception of this as a as a partisan issue because all of the six justices should Justice Roberts joined that majority would be Republican nominee. So whether it's fiber six. It's going to be similar kind of optics. I was going to say, though, My point is it is a fatal complaint, isn't it totally? Yeah? I mean, you know, I hate to say there's never a possibility because Plan Pedrotorn versus Casey happened, but I would be flabbery gasted and shocked if the Supreme Court doesn't overall row um in June, right, I mean, I would be pretty blown away. So, I mean, you can never say never because wild things happened, but it would be anyone who's been paying attention to this would be very surprised if that were not to happen. In June, Justice Alito wrote Row was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences, and far from bringing about a national settlement of the abortion issue, Row and Casey have inflame debate and deepened division. Your reaction, I mean, one of the interesting things is that in an opinion that spends so much time on history, the comments that the draft makes about inflaming opinion are without any historical support. I mean, the idea that Row is what left us with our current political divide um is something that absolves a lot of people, including the members of the current Supreme Court, of responsibility for inflaming that divide um. The abortion debate proceeded Row Um, it will long outlive Dobbs. It would It would be great if the Supreme Court could simply wave a magical on and we would all get along about abortion. That that's never been the way it is, and it will be the way it is now. Um. And the idea that row is egregiously wrong. I think again hearkens back to the fact that for these justices, this is not something that requires a lot of thought. Potentially, this is something that's obvious, and that's likely to make people even more bitter and unhappy who who support aversion rights, because this will not feel as if it was a kind of thoughtful, difficult but ultimately necessary conservative decision. This is going to feel like it was something that was automatic. Um. And that's I think going to make it sit less well with some people. It sounds as if Justice A. Leado is opposed to Roe v. Wade because he believes that abortion was never sort of spoken about in the Constitution. There is no right to an abortion. Why, in your view is that a specious argument? Well, I think that the main problem with that argument is simply that it proves too much right. Because if the argument Justice Leado makes is essentially that if a right isn't in the text of the Constitution, and if something wasn't recognized as a right at the time the fourteen Commitment was ratified, then it isn't a right. So then the question becomes, well, what else wasn't recognized as a right at the time the fourteen Commendment was written? Um, interracial marriage was broadly criminal. States were beginning to more vigorously criminalize same sex sexual intimacy and enforce those bands. Um say, the federal government had criminalized contraception and materials on sex education. Um, why it laws on voting for people of color were changing in negative and rapid ways. And so if that, if that's really the guide, the question is why is row different? Um. Justice Alito's answer in the draft seems to be that abortion effects fetal life, and that fetal life is uniquely valuable. But then, of course that's going to open the door to the argument that abortion is unconstitutional. That this isn't simply a matter of letting states each have their say through the democratic process, that this is something that the Supreme Court is going to intervene in yet again by saying abortion has to be criminal. So either way you look at it, um, I think the court sense that this is just something that the Court can wash its hands of is is disingenuous. I think the Court will be encouraging one set of challenges or another, if not both. So do you think this will ultimately lead to a Supreme Court decision outlying abortion period, no matter what states want to do or what state legislator, how state legislatures vote. I think that the Court in this draft is not closing the door on that possibility, and we already know that people in the anti abortion movement are making that argument. So whether the Court is receptive to it, I think remains to be seen. But this is certainly if this app ends up being something like the final opinion, that's going to supercharge efforts to get the Court to declare abortion and constitutional because people in the anti abortion movement are going to, I think correctly view that as an encouraging sign. What does this portend for other pieces or other Supreme Court decisions that have been handed down visa the things like gay marriage, etcetera. Well, the Court in this draft tries, I think, in a sort of half hearted way to distinguish those things, right, But I think, well, do you think this is the case of protesting too much? Yeah? I do, And I mean we've seen this on the progressive side before. Of course, when the Supreme Court struck down bands on sodomy, the court made a point of saying, well, sort of marriage is different, right, And then two that was in two thousand three, and the Court did recognize the right to same sex marriage. So the best way to read that language is the Court is not going to overrule those decisions today. But does that mean they're going to overrule them in five years? Who knows, because the reasoning is the same. I mean, if again, our guide is what was happening in nineteenth century America. That was when you know, women vote right, I mean, there are a lot of things that were different in nineteenth century American. If that's going to be our guide about the contour of constitutional rights, and if our sense of what constitutional memory comes from is just the black letter of the law, Um, it's not clear what the limiting principle is going to be. And we know that Justices Alito and Thomas have already called into question um the correctness of the Supreme Court's decision recognizing the right for same sex couples to marry. We know that Republican lawmakers during Katangi Brown Jackson's confirmation hearings have called that that precedent into questions. So it's coming, I mean, it's it's just a question of whether the Court goes for it, and whether the justices, who are you know, in the conservative coalition the least far to the right, want to embark on a mission of dismantling a wide variety of precedence and not just Brow. There's reason to think that would happen, because, of course we know Row is the most recognized Supreme Court opinion. And so if this is how the justices behave when everybody is paying attention, you know, are they really going to behave differently when people aren't paying attention? I would I would submit the answer to that is probably not. Can you tell us anything about Justice Alito that would help us understand his position when it comes to this draft decision? Yeah, I mean Justice Alito often approaches things. I mean there's a sort of it's hard to describe, but I think intellectually he's very self confident and there's almost a sense of um of offense he takes when people disagree with him. There's a tone in this draft that it almost ridicules the reasoning of Row and the people who support it. And that's in keeping with other decisions Justice Aldo has rendered. UM. We know as well the Justice Leado has a long history of being fairly far the right on abortion issues. So when he was a justice at the Third Circuit Court of Appeals, he was the only justice to hold that Pennsylvania could obligate um women and other people who are pregnant to tell their their husbands before getting an abortion. UM. We know that early in his political career, when he was working in republic and presidential administrations, he helped write briefs um In laying out strategy to undo Row. So intellectually and personally, this draft is not a surprise coming from him. I think the fact that this this would be the voice of the court speaking would be more surprising, because this, of course will have ramifications for the courts institutional reputation. If this is how the Court ultimately ends up um for the legacy of all the justices who signed this opinion, not just for Justice Alito. UM. So we know kind of in terms of where the justices fall, the Justice Alito and Thomas tend to be on the courts for this right flank. But of course all of the justices who are part of this opinion. UM, it's fair to say this will be their legacy. People will likely not remember almost anything else these justices do once rovweight is gone. I think this will be the defining momentum for this court and everyone on it. In fact, Justice Kavanaugh during the confirmation process assured members of Congress that he recognized and appreciated precedent and would not tamper with Growthy Wade, what do you make of that? Well, I think Justice Kavanaugh is a smart man who, you know, didn't really ever issue any guarantees, he said. I think Susan Collins, who to whom you may be referring in particular, wanted to understand him to mean a certain thing, and he was vague enough that she could hear what she wanted to hear. But he never made any specific guarantees that he would do anything with Row And I think anyone who knew his background or knew the reasons he had been chosen would be utterly unsurprised by the fact that he's voting this way. Um. I don't know if Susan Collins knew she was lying to herself, but she was lying to herself, right, I mean, I don't know if this was a case of her lying to everyone else because she already didn't believe what brick Havana was saying. I think it's more likely that she thought brick Havanaugh was since here um and simply was You know, it was a case of wishful thinking, I would imagine more than anything else, because most people who have been paying attention to Justice Kavina are not surprised by where he's coming out on this. Justice Alito claims there is no right constitutional right to an abortion, but others have questioned. I guess that the foundation of Roe v. Wade in terms of under the guise of the right to privacy, Um, in in terms that sort of the average person can understand. Can you tell us the foundational principles behind Roe vi Wade and why in some circles they have been controversial? Sure? So, Ruby Wade was not based on the text of the Constitution, which you know doesn't mention a right to abortion or frankly, a right to marry or a lot of other rights. And it was right to vote right. It wasn't based on the history of the Constitution because, as Justice Leader rightly points out, at the time the Nineteenth Amendment was being written, no one would have thought there was a right to abortion. The Court instead looked at its own precedence, which looked at and developed ideas about autonomy and bodily integrity related to things like marriage and creation. Um. And that was controversial because I think people thought that by not looking at texture history, the Court was sort of leaving Row open to more criticism. UM. Ruth for the late Ruth Vader Gainsburgh, thought it would be better for the Court to have relied on equal protection cause and the idea of sex discrimination to to create a foundation for abortion rights. It's worth emphasizing that that this draft is not just an exercise and saying Row was wrong. It's an exercise and saying there is no foundation for abortion rights full stop, no matter what you come up with. And the Court explicitly says there can be no equal protection rationale um, ironically, because the Court's precedents say there can be no rationale. The reason that's ironical, course, is the Court is dismantling fifty years of precedent um and then saying part of the reason that that has to happen is because of other precedents, saying that discrimination on the basis of pregnancy is not the same thing as the basis a discrimination on the basis of sex. So this is the Court essentially trying to close the door to any future constitutional argument for abortion rights, not just the ones that Rode relied on. Have he said that would it have been a stronger UH decision had it been based on as the late Justice Ginsburg had urged the equal protection statue, Absolutely, we would have been a stronger opinion. I think the drafts suggests that it ultimately wouldn't have mattered, and that if these were the people on the court, they probably would have overruled Row anyway. It would have made their job harder, right, It would have made it harder for them to say, well, look here all these progressives who support a worship rights who have also criticized this decision. But I think at the end of the day. This was about more than just the court's reasoning, although that was certainly important, it goes well beyond that. Did you think there was a chance that they would chip away at Row and not want it overturned completely? Um? No, I mean not long term. Like I think before oral argument in December, I was of the opinion that so one spread cabinal was confirmed to the Court. I thought it was a lock that they were going to overturn Row, but I didn't know when it was going to happen. And I thought, from the standpoint of just conserving the courts institute legitimacy, there was some value in, you know, and going through the motions and appearing to take this seriously and making it seem as if it was not just an automatic that when you put certain people on the court you get partisan outcomes. Um. So, I'm not surprised by the fact that it's happening. I'm surprised by the timing. Um. Chief Justice Roberts clearly thought that there was a chance that the Court would potentially do this in multiple steps, or maybe even stop at getting rid of viability. There's no sign whatsoever that the justices have any interest in doing that. It seems that we're headed to a kind of absolute overruling and one that's pretty rapid. What is the impact of this decision, It's hard to overstate. I mean, they're going to be impacts on lots of people's lives, people who can be pregnant. Um, just as was the case with the war on drugs. We would expect those impacts to be felt the most acutely by people who are in the most heavily policed communities, who are the people are most likely to be found out if they're having abortions. There will be people impacts on people who never seek abortions, because doctors will be reluctant to treat ectopic pregnancies or incomplete miscarriages or other things that may be perceived as abortion because they're unwilling to lose their licenses or go to prison. Um. It's going to affect people in blue states who are going to see people traveling from out of state to seek abortions. UM. It's going to affect doctors in blue states who may be potentially sued or charged with a crime in red states. It's going to shake up the two mid terms. It's going to shake up the presidential elections, and you know as a historian, and it also is going to have unpredictable effects, right. I think the Supreme Court felt very confident in nine that it knew what would happen after Robi Wade was reversed. And of course we know fifty years later that they were absolutely wrong. Um, and there's no reason to think that we can absolutely predict what's going to happen after this decision in much the same way. How are they wrong? Can you give us some insight into that? Yeah? I mean Justice Blackman had a clipping in his files that said, essentially, you know, seventy something percent of Americans think abortion should be a decision between a woman and her doctor. The numbers were very similar then as now, and so he thought, okay, well, if if the Court says it worshons a decision between a woman and her doctor, and there's a sound constitutional foundation for that, people are going to just accept that and move on. And we know that didn't happen. This Supreme Court somehow seems to think that if it sends this back to the States with lots of winks and nudges, that maybe other precedents can be overturned and maybe if people personhood is going to be recognized, this is going to go away. When that opinion will be running against popular opinion, that's insane, right, So people are sort of like this is all over just really whether their appro choice or per life, are not paying attention like this is going to just be the opening salvo in a much much longer battle. Um and people I would imagine who support a worsion rates are going to be in this for the long haul. Two and we may be looking at, you know, decades down the road a Supreme Court decision reinstituting a worship rates. So if the Court thinks it can put an end to this one way or another, or it can remove itself from the conversation, it has another thing coming. Well, what about some kind of congressional action kind of ying a woman's right to choose or reproductive rights that would uh do an end run around the Supreme Court? How possible? Is that It's it's not possible given the votes at the moment. And now it's trought with peril because we know that Republicans have you know, announced plans that if they retake the House and Senate in two and a Republican is in the White House and the filibuster is gone, which is what it would take to pass federal legislation protecting abortion rights. That Republicans would use their opportunity to criminalize abortion rights nationwide, in other words, to ensure that blue as well as red states cannot allow abortions. And so I think the question for Democrats is going to be, you know, how confident are they, um, if they're going to get rid of the filibuster, that things are not going to get really bad thereafter? Um? Because this will, of course, when it comes to abortion, raise the stakes dramatically, not just of state and local elections in terms of like who is your prosecutor they're going to use resources to prosecute people for abortion? Um, but also you know, national elections, because Congress may be in a position now, you know, either to codify abortion rights or qudify fetal protections. Well, what about taking action prior to the mid terms when there are Democratic majorities barely you know, raiser than in the Senate but in the House. Uh, could some kind of action be taken prior to that? And do you think this will change what we see happen in the mid term elections because suddenly sixty of the population has been galvanized to get out and vote. Yeah, it mean well, I mean I think the question, and this is really going to be for people listening to this, is like, how much do you care? Right? We know that seventy people say they don't want road to be overturned, but when the rubber meets the road, like, is that a basis people are actually going to vote right? Or is it going to turn into like, well, I don't really like this person's position on abortion, but I like their position on taxes, or I like their position on still in the blank other issue. So it really depends on how people operational is how they're feeling about this decision, and we just don't know the answer to that. Interestingly, both people who are pro life and pro choice are saying they feel this helps them. And that's how unpredictable it is. Right, everybody is like this is great for us, because we don't really know who has that right. And of course, if you're listening to this, you get to decide, right, I mean, you get to vote, You get to decide if you're going to be politically active on this um. And so I don't know the answer to that, but that's going to be in the hands of the people who are listening to this. In fact, just as a Lada rights in this draft, women are not without electoral or political power. At the percentage of women who registered to vote and cast ballots is consistently higher than the percentage of men who do so. Right, I mean, and so be careful what you wish were right. But I think that's that's right, and so um whether and I think that's really um the question. And I think it's important emphasize not just what happens in Congress, but what happens in state elections, because one thing that's pretty clear for anyone who studied this is the progressives have been getting massively outstrategized in eight elections for a long time, which is one of the reasons why states have become these laboratories of anti abortion legislation. Um. And that's true in states like Wisconsin, Michigan, Florida and so on that are politically contested, not just in red states. And it's true in red states that seem to have majorities that are not particularly opposed to abortion. And so it's if this is an issue you care about. It's worth paying attention to state and local races, even when those aren't kind of the glamor races you're hearing the most about in the news. After the break, we go back to the abortion rights protest in New York City to hear one woman's heroine story of her illegal abortion in nineteen sixty nine. Remember that protester from the top of this episode, the one who had the sign that read I survived in illegal abortion in Birmingham, Alabama in nineteen sixty nine. The protester's name Angela Fremont. She spoke with my producer Lauren Hansen, and just to note, this story contains a detailed description of an illegal abortion. I was living in Miami when I got pregnant with my grandmother. And when I I couldn't couldn't tell my grandmother that I was pregnant. Um, I had a I had a job. I was eighteen years old and I had a job working at a land development company, and the nurse that worked there gave me a phone number, and I went to a pay phone outside on the street, and the phone number that I called was a doctor in Alabama. And that's how I wound up in Alabama, and the doctor when I got there examined me and said, you're too far along. I'm not going to do the abortion. Yeah, he said, but I know somebody. So it was like a bait and s which kind of thing. And uh, I don't think he ever intended to do the abortion. He just passed me along to this abortionist who drove me out to down a dirt road to a shack where there was two sawhorses and a sheet of plywood and three dogs that had been locked up inside the shack with urine all over the floor, and a rubber hose. Um that she explained she was going to push through my cervix into my uterus and then use cotton batting two support the hose and keep it from slipping out, and that I had to keep it there for thirty six hours and that air would pass through the hose and I would spontaneously abort. Yeah. Um, but after about probably thirty hours, I was hemorrhaging, and um I had gone back to Tallahassee to be with friends there, and um, they got scared. They pulled out the cotton batting and I was a mess. I had a fever, and they put me in the car and dropped me off outside the hospital and the hospital that I was brought to. Um Oh, things are getting really exciting here. Um Uh. They did a d n C on me and um the police eventually gave up questioning me, asking me who had done this to me? And I in my mind, I thought if I if I told them that somebody else had done this that um I was, I'd be implicating somebody that I would go to jail. So I I So I just kept saying that I did it to myself. Having an illegal abortion is something no one should have to go through. And um in three after Roe v. Wade, Um, we all celebrated. We were so happy. It was such a it was such a national relief for women. It's really important to talk about this because it's it's super fucked up right now. This is really not good because women in Oklahoma need to have access, and in Texas and in North Dakota and in South Dakota and in twenty six states across the country. At least they need to have access. You are safe here. It's not fair and we have to speak out. There will be so much more to tackle in our special series on the End of Row and the history and future of abortion access. The special series launches June two, right here in My Next Question feed. Don't miss it. Thank you so much to Mary Ziggler and to all of the protesters who took the time to speak with us. Next Question with Katie Kurik is a production of I Heart Media and Katie Kuric Media. The executive producers Army, Katie Kuric, and Courtney Litz. The supervising producer is Lauren Hansen. Associate producers Derek Clements and Adriana Fasio. The show is edited and mixed by Derrick Clements. For more information about today's episode, or to sign up for my morning newsletter, Wake Up Paul, go to Katie Curry dot com. You can also find me at Katie Curiic on Instagram and all my social media channels. For more podcasts from I Heart Radio, visit the I Heart Radio app, Apple Podcast, or wherever you listen to your favorite shows.

Hi everyone, I'm Katie Curic and this is next question. Something major happened this week breaking news out of Washington, an unprecedented leak from the Supreme Courts the draft opinion, which shows its conservative majority of justices is ready to overturn Roe v. Wade. The Court confirmed the document is authentic, but says it does not represent a decision nor the final position of any justice. This could be the most consequential opinion in decades. Hundreds of protesters rallied outside the Supreme Court Monday evening afternows of the Court's draft opinion broke, and those protests continued all over the country on Tuesday, including one right here in New York City. A couple of my producers and I headed to Fully Square in Lower Manhattan so we could see and hear how abortion rights supporters are responding to the shocking is Tell me why you wanted to come down here today? Not only because I've had an abortion, but my daughter is twenty one and this is the world she's in right now. So how could we not be here. Anywhere where more than two people are gathered for the sake of reproductive rights is a gathering I want to be at. I came out because I love women. I love the rights to their their own autonomy. I love the rights of humanity, and I love the laws of humanity as well. It was important that people were in the streets today, but this cannot be another one day protest where we register our descent and then go home and let them strip us of our right to be fully human. And if I asked you about your side, it says I survived in a legal abortion in Birmingham, Alabama, in nineteen sixty nine. I woke up this morning I felt like I had time traveled. I can't believe we're going back to this. We're just regressing so far. And do you remember what it was like the Grovy Way was decided? And can you describe it for people who don't. I can remember being in college and knowing of girls in my college who had back alley abortions, and some of them suffered grave consequences as a result. There are people finding out that they are pregnant and they don't necessarily want to be, or they didn't plan to be, or they're thinking about what they're gonna do um and I can't imagine being in that situation. Right now at the end of the day, like a lot of people are lonely and feel like they're alone in a decision or in a problem or uh So, coming to where there's like thousands of people are like hundreds of people is just like reaffirming the fact that we are not wrong. I don't believe this is an accident, and I don't believe that this is all of a sudden So for me, Texas was the wake up call and since then it's been pretty rough for my mental health. How are you guys feeling after this gathering? It feels great empowering. Also, like we also know that coming here is just not the end of it. That's why Thursday we're calling for nationwide strikes, no school, no work. You know, if you're calling sick to work, say you're sick of the patriarchy. We're both in law school right now, and so it's important for us to come out here and do this and do our civic duty to protest and hopefully use our legal careers to undo whatever the hell is happening right now. This is the biggest privilege to be here for democracy, for the rights of women. I grew I raised my children in South in Atlanta, and I just moved to New York and this is how it's supposed to be likely here. I am any general call to action. This is a fine alarm fire of my friends. This is a time to act, and this is not the time to be silent, because silence is right now when ree poem rights are under attack, what do we do? The news of the leak draft and its language was stunning, but the fact is it wasn't unexpected given the courts conservative majority. In fact, in anticipation of the official ruling which is expected to come down in late June, my producer Lauren Hansen, and I have been busy putting together an in depth and nuanced dive into the history and future of abortion access in this country. We've talked to countless people on the topic, abortion doctors, clinic staff, activists on the ground, reproductive justice leaders, historians, people who have had abortions, and so many more. It's been months in the making and it's coming out in just a few weeks. In the meantime, today, right now, we need to address the big abortion news this week, and to do so, we connected with one of the legal experts from our series, Mary Ziggler. Mary not only helped us understand the league, but what the draft actually means for the upcoming road decision. It feels kind of cavalier. It feels as if these justices are are siloed right from people who disagree with them in ways that are consequential. Um, and that we see unfolding. Now we'll have more with Mary Ziggler right after this. Mary Ziggler is one of the foremost experts on the long history of abortion and the law. So, Mary, have you had a chance to look over the draft opinion? Yeah? And what was your reaction? Um? I mean, in some ways, it's not surprising given what we heard at the oral argument in December. This is sort of what I was expected at the same expecting at the same time, I think I kind of can't help but be surprised because I spend a lot of time as someone who studies this talking to people with different views on abortion, and anyone, regardless of their opinion on abortion, should understand that what this is is going to be a very big deal for a very lot of people. Um. And this opinion, it feels like it's certain by people who think this is an easy decision this is not really something that requires a lot of soul searching. UM. And that's really really striking. I think it feels kind of cavalier. Um. It feels it feels as if these justices are are siloed right from people who disagree with them in ways that are consequential, Um that we see unfolding now. Politico called this draft a quote full throated, unflinching repudiation of the seventy three decision. Do you agree? Oh yeah, there's no question. I mean it's I don't know how much more full throated or repudiation you could have, so that that characterization of the draft is absolutely right. Having said that, how close will the opinion itself resemble this draft? Is there a chance that the language that's Justice Alito used in writing it could be softened or altered to be less of a repudiation? Absolutely? I mean this draft is from February. UM. We know historically when UM planned Parenthod versus Casey, the Court abortion decision UM came out. There were leaks that reported the Court was going to reverse Row, and we know at least one justice changed their mind on that matter. Between the time of those leaks and the time of a final decision. So it's it's even possible the votes don't come out the same way. UM, I would be surprised by that, But I think it's it's more likely that some of the language in this opinion the final opinion may change or be softened. Um. The effect of the leak is actually interesting because you could imagine some of the justices being more reluctant to make those changes because they don't want to be perceived to be caving to public pressure. So how the leak ultimately um shapes what's going to happen in terms of the final opinion is is a really interesting question given the makeup of the current court. Even if Chief Justice Roberts uh does not agree with this, it is still potentially and likely a five for decision, is it not. It is unless Chief Justice John roberts decides that for the good of the Court he's going to join the majority to make the court look more unified. But I mean, I doubt that that would change people's perception of this as a as a partisan issue because all of the six justices should Justice Roberts joined that majority would be Republican nominee. So whether it's fiber six. It's going to be similar kind of optics. I was going to say, though, My point is it is a fatal complaint, isn't it totally? Yeah? I mean, you know, I hate to say there's never a possibility because Plan Pedrotorn versus Casey happened, but I would be flabbery gasted and shocked if the Supreme Court doesn't overall row um in June, right, I mean, I would be pretty blown away. So, I mean, you can never say never because wild things happened, but it would be anyone who's been paying attention to this would be very surprised if that were not to happen. In June, Justice Alito wrote Row was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences, and far from bringing about a national settlement of the abortion issue, Row and Casey have inflame debate and deepened division. Your reaction, I mean, one of the interesting things is that in an opinion that spends so much time on history, the comments that the draft makes about inflaming opinion are without any historical support. I mean, the idea that Row is what left us with our current political divide um is something that absolves a lot of people, including the members of the current Supreme Court, of responsibility for inflaming that divide um. The abortion debate proceeded Row Um, it will long outlive Dobbs. It would It would be great if the Supreme Court could simply wave a magical on and we would all get along about abortion. That that's never been the way it is, and it will be the way it is now. Um. And the idea that row is egregiously wrong. I think again hearkens back to the fact that for these justices, this is not something that requires a lot of thought. Potentially, this is something that's obvious, and that's likely to make people even more bitter and unhappy who who support aversion rights, because this will not feel as if it was a kind of thoughtful, difficult but ultimately necessary conservative decision. This is going to feel like it was something that was automatic. Um. And that's I think going to make it sit less well with some people. It sounds as if Justice A. Leado is opposed to Roe v. Wade because he believes that abortion was never sort of spoken about in the Constitution. There is no right to an abortion. Why, in your view is that a specious argument? Well, I think that the main problem with that argument is simply that it proves too much right. Because if the argument Justice Leado makes is essentially that if a right isn't in the text of the Constitution, and if something wasn't recognized as a right at the time the fourteen Commitment was ratified, then it isn't a right. So then the question becomes, well, what else wasn't recognized as a right at the time the fourteen Commendment was written? Um, interracial marriage was broadly criminal. States were beginning to more vigorously criminalize same sex sexual intimacy and enforce those bands. Um say, the federal government had criminalized contraception and materials on sex education. Um, why it laws on voting for people of color were changing in negative and rapid ways. And so if that, if that's really the guide, the question is why is row different? Um. Justice Alito's answer in the draft seems to be that abortion effects fetal life, and that fetal life is uniquely valuable. But then, of course that's going to open the door to the argument that abortion is unconstitutional. That this isn't simply a matter of letting states each have their say through the democratic process, that this is something that the Supreme Court is going to intervene in yet again by saying abortion has to be criminal. So either way you look at it, um, I think the court sense that this is just something that the Court can wash its hands of is is disingenuous. I think the Court will be encouraging one set of challenges or another, if not both. So do you think this will ultimately lead to a Supreme Court decision outlying abortion period, no matter what states want to do or what state legislator, how state legislatures vote. I think that the Court in this draft is not closing the door on that possibility, and we already know that people in the anti abortion movement are making that argument. So whether the Court is receptive to it, I think remains to be seen. But this is certainly if this app ends up being something like the final opinion, that's going to supercharge efforts to get the Court to declare abortion and constitutional because people in the anti abortion movement are going to, I think correctly view that as an encouraging sign. What does this portend for other pieces or other Supreme Court decisions that have been handed down visa the things like gay marriage, etcetera. Well, the Court in this draft tries, I think, in a sort of half hearted way to distinguish those things, right, But I think, well, do you think this is the case of protesting too much? Yeah? I do, And I mean we've seen this on the progressive side before. Of course, when the Supreme Court struck down bands on sodomy, the court made a point of saying, well, sort of marriage is different, right, And then two that was in two thousand three, and the Court did recognize the right to same sex marriage. So the best way to read that language is the Court is not going to overrule those decisions today. But does that mean they're going to overrule them in five years? Who knows, because the reasoning is the same. I mean, if again, our guide is what was happening in nineteenth century America. That was when you know, women vote right, I mean, there are a lot of things that were different in nineteenth century American. If that's going to be our guide about the contour of constitutional rights, and if our sense of what constitutional memory comes from is just the black letter of the law, Um, it's not clear what the limiting principle is going to be. And we know that Justices Alito and Thomas have already called into question um the correctness of the Supreme Court's decision recognizing the right for same sex couples to marry. We know that Republican lawmakers during Katangi Brown Jackson's confirmation hearings have called that that precedent into questions. So it's coming, I mean, it's it's just a question of whether the Court goes for it, and whether the justices, who are you know, in the conservative coalition the least far to the right, want to embark on a mission of dismantling a wide variety of precedence and not just Brow. There's reason to think that would happen, because, of course we know Row is the most recognized Supreme Court opinion. And so if this is how the justices behave when everybody is paying attention, you know, are they really going to behave differently when people aren't paying attention? I would I would submit the answer to that is probably not. Can you tell us anything about Justice Alito that would help us understand his position when it comes to this draft decision? Yeah, I mean Justice Alito often approaches things. I mean there's a sort of it's hard to describe, but I think intellectually he's very self confident and there's almost a sense of um of offense he takes when people disagree with him. There's a tone in this draft that it almost ridicules the reasoning of Row and the people who support it. And that's in keeping with other decisions Justice Aldo has rendered. UM. We know as well the Justice Leado has a long history of being fairly far the right on abortion issues. So when he was a justice at the Third Circuit Court of Appeals, he was the only justice to hold that Pennsylvania could obligate um women and other people who are pregnant to tell their their husbands before getting an abortion. UM. We know that early in his political career, when he was working in republic and presidential administrations, he helped write briefs um In laying out strategy to undo Row. So intellectually and personally, this draft is not a surprise coming from him. I think the fact that this this would be the voice of the court speaking would be more surprising, because this, of course will have ramifications for the courts institutional reputation. If this is how the Court ultimately ends up um for the legacy of all the justices who signed this opinion, not just for Justice Alito. UM. So we know kind of in terms of where the justices fall, the Justice Alito and Thomas tend to be on the courts for this right flank. But of course all of the justices who are part of this opinion. UM, it's fair to say this will be their legacy. People will likely not remember almost anything else these justices do once rovweight is gone. I think this will be the defining momentum for this court and everyone on it. In fact, Justice Kavanaugh during the confirmation process assured members of Congress that he recognized and appreciated precedent and would not tamper with Growthy Wade, what do you make of that? Well, I think Justice Kavanaugh is a smart man who, you know, didn't really ever issue any guarantees, he said. I think Susan Collins, who to whom you may be referring in particular, wanted to understand him to mean a certain thing, and he was vague enough that she could hear what she wanted to hear. But he never made any specific guarantees that he would do anything with Row And I think anyone who knew his background or knew the reasons he had been chosen would be utterly unsurprised by the fact that he's voting this way. Um. I don't know if Susan Collins knew she was lying to herself, but she was lying to herself, right, I mean, I don't know if this was a case of her lying to everyone else because she already didn't believe what brick Havana was saying. I think it's more likely that she thought brick Havanaugh was since here um and simply was You know, it was a case of wishful thinking, I would imagine more than anything else, because most people who have been paying attention to Justice Kavina are not surprised by where he's coming out on this. Justice Alito claims there is no right constitutional right to an abortion, but others have questioned. I guess that the foundation of Roe v. Wade in terms of under the guise of the right to privacy, Um, in in terms that sort of the average person can understand. Can you tell us the foundational principles behind Roe vi Wade and why in some circles they have been controversial? Sure? So, Ruby Wade was not based on the text of the Constitution, which you know doesn't mention a right to abortion or frankly, a right to marry or a lot of other rights. And it was right to vote right. It wasn't based on the history of the Constitution because, as Justice Leader rightly points out, at the time the Nineteenth Amendment was being written, no one would have thought there was a right to abortion. The Court instead looked at its own precedence, which looked at and developed ideas about autonomy and bodily integrity related to things like marriage and creation. Um. And that was controversial because I think people thought that by not looking at texture history, the Court was sort of leaving Row open to more criticism. UM. Ruth for the late Ruth Vader Gainsburgh, thought it would be better for the Court to have relied on equal protection cause and the idea of sex discrimination to to create a foundation for abortion rights. It's worth emphasizing that that this draft is not just an exercise and saying Row was wrong. It's an exercise and saying there is no foundation for abortion rights full stop, no matter what you come up with. And the Court explicitly says there can be no equal protection rationale um, ironically, because the Court's precedents say there can be no rationale. The reason that's ironical, course, is the Court is dismantling fifty years of precedent um and then saying part of the reason that that has to happen is because of other precedents, saying that discrimination on the basis of pregnancy is not the same thing as the basis a discrimination on the basis of sex. So this is the Court essentially trying to close the door to any future constitutional argument for abortion rights, not just the ones that Rode relied on. Have he said that would it have been a stronger UH decision had it been based on as the late Justice Ginsburg had urged the equal protection statue, Absolutely, we would have been a stronger opinion. I think the drafts suggests that it ultimately wouldn't have mattered, and that if these were the people on the court, they probably would have overruled Row anyway. It would have made their job harder, right, It would have made it harder for them to say, well, look here all these progressives who support a worship rights who have also criticized this decision. But I think at the end of the day. This was about more than just the court's reasoning, although that was certainly important, it goes well beyond that. Did you think there was a chance that they would chip away at Row and not want it overturned completely? Um? No, I mean not long term. Like I think before oral argument in December, I was of the opinion that so one spread cabinal was confirmed to the Court. I thought it was a lock that they were going to overturn Row, but I didn't know when it was going to happen. And I thought, from the standpoint of just conserving the courts institute legitimacy, there was some value in, you know, and going through the motions and appearing to take this seriously and making it seem as if it was not just an automatic that when you put certain people on the court you get partisan outcomes. Um. So, I'm not surprised by the fact that it's happening. I'm surprised by the timing. Um. Chief Justice Roberts clearly thought that there was a chance that the Court would potentially do this in multiple steps, or maybe even stop at getting rid of viability. There's no sign whatsoever that the justices have any interest in doing that. It seems that we're headed to a kind of absolute overruling and one that's pretty rapid. What is the impact of this decision, It's hard to overstate. I mean, they're going to be impacts on lots of people's lives, people who can be pregnant. Um, just as was the case with the war on drugs. We would expect those impacts to be felt the most acutely by people who are in the most heavily policed communities, who are the people are most likely to be found out if they're having abortions. There will be people impacts on people who never seek abortions, because doctors will be reluctant to treat ectopic pregnancies or incomplete miscarriages or other things that may be perceived as abortion because they're unwilling to lose their licenses or go to prison. Um. It's going to affect people in blue states who are going to see people traveling from out of state to seek abortions. UM. It's going to affect doctors in blue states who may be potentially sued or charged with a crime in red states. It's going to shake up the two mid terms. It's going to shake up the presidential elections, and you know as a historian, and it also is going to have unpredictable effects, right. I think the Supreme Court felt very confident in nine that it knew what would happen after Robi Wade was reversed. And of course we know fifty years later that they were absolutely wrong. Um, and there's no reason to think that we can absolutely predict what's going to happen after this decision in much the same way. How are they wrong? Can you give us some insight into that? Yeah? I mean Justice Blackman had a clipping in his files that said, essentially, you know, seventy something percent of Americans think abortion should be a decision between a woman and her doctor. The numbers were very similar then as now, and so he thought, okay, well, if if the Court says it worshons a decision between a woman and her doctor, and there's a sound constitutional foundation for that, people are going to just accept that and move on. And we know that didn't happen. This Supreme Court somehow seems to think that if it sends this back to the States with lots of winks and nudges, that maybe other precedents can be overturned and maybe if people personhood is going to be recognized, this is going to go away. When that opinion will be running against popular opinion, that's insane, right, So people are sort of like this is all over just really whether their appro choice or per life, are not paying attention like this is going to just be the opening salvo in a much much longer battle. Um and people I would imagine who support a worsion rates are going to be in this for the long haul. Two and we may be looking at, you know, decades down the road a Supreme Court decision reinstituting a worship rates. So if the Court thinks it can put an end to this one way or another, or it can remove itself from the conversation, it has another thing coming. Well, what about some kind of congressional action kind of ying a woman's right to choose or reproductive rights that would uh do an end run around the Supreme Court? How possible? Is that It's it's not possible given the votes at the moment. And now it's trought with peril because we know that Republicans have you know, announced plans that if they retake the House and Senate in two and a Republican is in the White House and the filibuster is gone, which is what it would take to pass federal legislation protecting abortion rights. That Republicans would use their opportunity to criminalize abortion rights nationwide, in other words, to ensure that blue as well as red states cannot allow abortions. And so I think the question for Democrats is going to be, you know, how confident are they, um, if they're going to get rid of the filibuster, that things are not going to get really bad thereafter? Um? Because this will, of course, when it comes to abortion, raise the stakes dramatically, not just of state and local elections in terms of like who is your prosecutor they're going to use resources to prosecute people for abortion? Um, but also you know, national elections, because Congress may be in a position now, you know, either to codify abortion rights or qudify fetal protections. Well, what about taking action prior to the mid terms when there are Democratic majorities barely you know, raiser than in the Senate but in the House. Uh, could some kind of action be taken prior to that? And do you think this will change what we see happen in the mid term elections because suddenly sixty of the population has been galvanized to get out and vote. Yeah, it mean well, I mean I think the question, and this is really going to be for people listening to this, is like, how much do you care? Right? We know that seventy people say they don't want road to be overturned, but when the rubber meets the road, like, is that a basis people are actually going to vote right? Or is it going to turn into like, well, I don't really like this person's position on abortion, but I like their position on taxes, or I like their position on still in the blank other issue. So it really depends on how people operational is how they're feeling about this decision, and we just don't know the answer to that. Interestingly, both people who are pro life and pro choice are saying they feel this helps them. And that's how unpredictable it is. Right, everybody is like this is great for us, because we don't really know who has that right. And of course, if you're listening to this, you get to decide, right, I mean, you get to vote, You get to decide if you're going to be politically active on this um. And so I don't know the answer to that, but that's going to be in the hands of the people who are listening to this. In fact, just as a Lada rights in this draft, women are not without electoral or political power. At the percentage of women who registered to vote and cast ballots is consistently higher than the percentage of men who do so. Right, I mean, and so be careful what you wish were right. But I think that's that's right, and so um whether and I think that's really um the question. And I think it's important emphasize not just what happens in Congress, but what happens in state elections, because one thing that's pretty clear for anyone who studied this is the progressives have been getting massively outstrategized in eight elections for a long time, which is one of the reasons why states have become these laboratories of anti abortion legislation. Um. And that's true in states like Wisconsin, Michigan, Florida and so on that are politically contested, not just in red states. And it's true in red states that seem to have majorities that are not particularly opposed to abortion. And so it's if this is an issue you care about. It's worth paying attention to state and local races, even when those aren't kind of the glamor races you're hearing the most about in the news. After the break, we go back to the abortion rights protest in New York City to hear one woman's heroine story of her illegal abortion in nineteen sixty nine. Remember that protester from the top of this episode, the one who had the sign that read I survived in illegal abortion in Birmingham, Alabama in nineteen sixty nine. The protester's name Angela Fremont. She spoke with my producer Lauren Hansen, and just to note, this story contains a detailed description of an illegal abortion. I was living in Miami when I got pregnant with my grandmother. And when I I couldn't couldn't tell my grandmother that I was pregnant. Um, I had a I had a job. I was eighteen years old and I had a job working at a land development company, and the nurse that worked there gave me a phone number, and I went to a pay phone outside on the street, and the phone number that I called was a doctor in Alabama. And that's how I wound up in Alabama, and the doctor when I got there examined me and said, you're too far along. I'm not going to do the abortion. Yeah, he said, but I know somebody. So it was like a bait and s which kind of thing. And uh, I don't think he ever intended to do the abortion. He just passed me along to this abortionist who drove me out to down a dirt road to a shack where there was two sawhorses and a sheet of plywood and three dogs that had been locked up inside the shack with urine all over the floor, and a rubber hose. Um that she explained she was going to push through my cervix into my uterus and then use cotton batting two support the hose and keep it from slipping out, and that I had to keep it there for thirty six hours and that air would pass through the hose and I would spontaneously abort. Yeah. Um, but after about probably thirty hours, I was hemorrhaging, and um I had gone back to Tallahassee to be with friends there, and um, they got scared. They pulled out the cotton batting and I was a mess. I had a fever, and they put me in the car and dropped me off outside the hospital and the hospital that I was brought to. Um Oh, things are getting really exciting here. Um Uh. They did a d n C on me and um the police eventually gave up questioning me, asking me who had done this to me? And I in my mind, I thought if I if I told them that somebody else had done this that um I was, I'd be implicating somebody that I would go to jail. So I I So I just kept saying that I did it to myself. Having an illegal abortion is something no one should have to go through. And um in three after Roe v. Wade, Um, we all celebrated. We were so happy. It was such a it was such a national relief for women. It's really important to talk about this because it's it's super fucked up right now. This is really not good because women in Oklahoma need to have access, and in Texas and in North Dakota and in South Dakota and in twenty six states across the country. At least they need to have access. You are safe here. It's not fair and we have to speak out. There will be so much more to tackle in our special series on the End of Row and the history and future of abortion access. The special series launches June two, right here in My Next Question feed. Don't miss it. Thank you so much to Mary Ziggler and to all of the protesters who took the time to speak with us. Next Question with Katie Kurik is a production of I Heart Media and Katie Kuric Media. The executive producers Army, Katie Kuric, and Courtney Litz. The supervising producer is Lauren Hansen. Associate producers Derek Clements and Adriana Fasio. The show is edited and mixed by Derrick Clements. For more information about today's episode, or to sign up for my morning newsletter, Wake Up Paul, go to Katie Curry dot com. You can also find me at Katie Curiic on Instagram and all my social media channels. For more podcasts from I Heart Radio, visit the I Heart Radio app, Apple Podcast, or wherever you listen to your favorite shows.