Supreme Court Overturns Roe and Casey

The outcome might not have been surprising, but the official release of the Dobbs v. ...

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The outcome might not have been surprising, but the official release of the Dobbs v. Jackson opinion on Friday was still earth shaking, as it overturned Roe v. Wade and a half-century of precedent on abortion. Sarah and David convened an emergency podcast, diving headfirst into the details of the majority opinion written by Justice Samuel Alito, the concurrences by Justice Clarence Thomas, Justice Brett Kavanaugh, and Chief Justice John Roberts, and the liberal dissent. What does this case mean for us and where do we go from here?

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  1. Avatar photo
    OnceAnEastCoastLiberal?

    You guys probably aren't reading this anymore, but a question. So, does the Supreme Court HAVE to interpret the abortion case as being about...abortion? What if they interpreted as the right to decide you own heath care or just bodily autonomy? Those things seem like clear unenumerated rights, right? Who says they have to even consider the specific procedure? I can't think of another medical procedure where the gov't tells you want you can/can't do to your own body--if a person wants to remove a kidney from their person, no one else gets to decide for them. I guess you could say the one other instance is euthanasia? I know the whole controversy obviously is that there's (maybe) another life with rights at stake depending on your view, but is that positively something the court needs to consider?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Still reading. And yes it all depends on the level of generality for any right. Is it privacy or abortion? Is it right to gay marriage or…marriage period? Etc.

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        OnceAnEastCoastLiberal?

        Thank you. I am not a lawyer (I just REALLY wish I had listened to my mother and gone to law school) and I am trying to figure out what the best argument to protect abortion rights would be, if I am to accept the argument that David seems to make that Roe was, sort of, invented. For the pro-choice side, how would this case have been most winnable and likely to withstand future attacks (at least under a different combination of justices)?

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  2. Will Brisley

    In the podcast you explained the legal definition of “settled law” as a way of explaining how justices who voted to overturn Roe/Casey didn’t perjure themselves during their confirmation hearings. But I’m not sure any of them actually said Roe/Casey was settled law. According to this article, they all indicated some version of the importance of precedent, etc but I can’t actually find anywhere where anyone says that Roe/Casey is settled law. Gorsuch is the only one who got close and I’m not sure he was talking about Roe/Casey or just precedent in general. Are there situations you can point to that show the justices specifically saying Roe/Casey was settled law?

    https://www.nbcnews.com/politics/supreme-court/supreme-court-justices-said-roe-abortion-confirmations-rcna35246

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  3. Michael.Shermanbklyn

    I think it would be helpful if D and S spent an entire episode (perhaps in place of this summer’s discussion of space travel or curling) analyzing the dissent. It is more compelling and convincing than many pundits seem to believe. I would be particularly interested in Sarah’s view on the right to privacy and bodily autonomy. Perhaps it is time for the pod to invite a more liberal legal academic or journalist to help the listeners appreciate both sides. The great thing about AO is that, while the hosts identify as conservative, one often wouldn’t know it from the analysis. I fear, after finishing the opinion, the concurrences and, most importantly, the dissent, that is not the case with Dobbs. With all the noise around us, it would be a great public service.

    While you are at it, please spend some time explaining how Scalia and later Thomas can completely ignore the prefatory clause to the 2nd amendment in Heller and Bruen, respectively. I would not be surprised if 36 years from now Heller is overturned with little regard for stare decisis.

    Magenta, being the most electrifying color, the right of the people to keep and bear Arms, shall not be infringed.

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  4. Y.L.

    Hi I just heard Damon Root on the Fifth Column podcast explain that abortion was legal in the US at the time of the founding until "quickening'" i.e. fetal motion is felt. (Column here: https://www.google.com/amp/s/reason.com/2022/06/24/alitos-abortion-ruling-overturning-roe-is-an-insult-to-the-9th-amendment/%3ffbclid=IwAR0GWQCZcfU_0aRctbodgKWCdJ1zlnUjVPCFFk1qdIG19e1CboYjTjxjIj4&)
    Therefore he says it should be an unenumerated right based on Alito's reasoning. Yet I haven't heard this discussed in any conservative discussions of this, or from David and Sarah. If he's right it seems Roe was not concocted out of whole cloth. Can someone please explain to me the counterargument to this?

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    Rev Snow

    Thanks to David for reading that paragraph from the dissent that captures the progressive judicial construction point of view on how imposition of evolving standards can still be seen as faithful to the words and intentions of the Framers.

    All of that is fine as far as it goes, but here's the thing. The whole paragraph says absolutely nothing about being faithful to the expectations and intentions of the ratifiers of the text. Our entire system purports to be authored by "We The People" and consent of the governed is a requirement, not a nicety. The amendment processes recapitulate this necessity. A new charter demands a new supermajority consent. This is why originalism has landed on "original public meaning" as the best target to ascertain exactly what bargain and agreement are crystalized in the written words that govern our affairs. Anything that side steps the question of what decisions and agreements have been properly ratified is stealing a base and tempts toward government by privileged judicial masters.

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    Ann Rossigno

    I’ve scrolled through a bunch of comments and so far haven’t seen mention of the study that David referenced on the % of abortions in the US that will still be legal under existing state law. I believe he said 87-90%. Does anyone know where I can find that study. I was very surprised to hear that number.

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    Alexander

    If the Constitution really had a right to privacy that implied a right to abortion, then that would be wholly incompatible with an FDA that has licensing power.

    The FDA hits all the same issues: taking away bodily autonomy, the government coming between a doctor and a patient in decision making.

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    Alexander

    On past court decisions that took away rights:

    The Slaughter-House Cases took away our right to privileges and immunities of citizens.

    West Coast Hotel Co. v. Parrish took away our right to liberty of contract.

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  9. Elizabeth Singleton

    David and Sarah, Long-time listener, first time commenter. I am not a lawyer, but I enjoy the podcast and trying to improve my understanding of the legal basis for decisions generally. Based on my lay knowledge and some common sense, I am stuck on how interpretation of the Constitution and the founding documents deals with woman's rights generally, as woman are not mentioned in the Constitution and had very few rights at the time and for many decades afterwards. Does a strict interpretation of the Constitution require that any rights for women (or any other class of citizen under recognized and disenfranchised at the time) must be clearly delineated in laws passed by Congress and/or amendments to the Constitution? It must be challenging to develop a legal history or precedent when women were not allowed or encouraged to advocate for themselves for centuries. Doesn't this become a bit circular? As a non-lawyer, I would really appreciate you addressing this on the pod.

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    Will Roberts

    Mailbag.

    1. Can you explain again the difference between substantive due process and regular due process and why justice Thomas' objections to substantive due process applies to gay marriage and contraception but not to interracial marriage other than the fact that Thomas is in an interracial marriage and doesn't want to invalidate his own marriage? Is interracial marriage not based on substantive due process and gay marriage is? If why please explain

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