12. What’s at Stake in this Supreme Court Term?
Is the Supreme Court about to gut Roe v. Wade? Here’s everything you need to know. Plus: new data from the Guttmacher Institute reveals what abortion access would look like in a post-Roe America.
Guest: Elizabeth Nash, principal policy associate for state issues, Guttmacher Institute
Resources:
EPISODE TRANSCRIPT
Garnet Henderson [00:00:01] Hey, everybody. We've got a lot of new listeners around here. So, first of all, I just wanted to take a moment to say thank you so much for listening to the show. I'm really glad you're here. And I wanted to let you know if you didn't already. That access is an independent production. That means it's not funded by a big podcast network or media company, and that's largely because big media companies aren't really interested in doing the kind of abortion reporting that I do here on the show. So if you like the show, I really hope you'll help me keep making it. And there are so many ways you can do that. You can donate, you can buy merch, and those links are in our show notes. Or you can just share the show, share it directly with a friend or share it on social media. I appreciate it all so much. Thank you. And here's the show.
Pro-Abortion Chanting [00:01:38] My Body. My Choice. My Body. My Choice. My Body. My Choice.
Garnet Henderson [00:01:50] Welcome to ACCESS, a podcast about abortion. I'm your host, Garnet Henderson. As promised, today, we are talking all about the Supreme Court. There is so very much at stake this term, literally the future of abortion access. And to help us understand that, we're going to hear later from Elizabeth Nash of the Guttmacher Institute. She's a returning guest to the show and she'll introduce us to a huge project just released today, illustrating what the abortion access landscape will look like if the Supreme Court overturns or significantly weakens Roe versus Wade. But first, we're going to talk about the specific cases in front of the court this term and have a little history lesson. Let's start by talking about precedent. Precedent, precedent, precedent. Right. We hear this word all the time in discussions about the Supreme Court. So I'm going to give you just a little summary of the most consequential abortion related decisions the court has made thus far. This is by no means an exhaustive list. In fact, the Supreme Court has made a lot more decisions about abortion and contraception than most people realize. If I went through all of those cases, this episode would probably be like 5 hours long. And I'm not going to do that to you, but I will link to a list of these cases in the show notes. In case anybody wants to take a really deep dive. So everybody knows about Roe versus Wade. Right. But before we get to that case, I want to mention another one. You may not have heard of. The year is 1965 and the case is Griswold versus Connecticut. This is the Supreme Court decision that legalized birth control for married people. That's right before this decision. 30 states had laws that made it illegal to advertise contraceptives. Two states, Connecticut and Massachusetts, banned contraceptives outright. But then Estelle Griswold, the executive director of Planned Parenthood League of Connecticut and a doctor, Lee Buxton, got arrested following the police raid of a clinic where they were giving out birth control. This was an act of civil disobedience. Griswold wanted to challenge this law. So she actually showed the police all of the contraceptive contraband. She was convicted on criminal charges. Fought that conviction and won. The Supreme Court ruled that states cannot ban the use of contraceptives because to do so violates the right to marital privacy. It wasn't until seven years later, in 1972, that a different Supreme Court decision legalized contraceptives for single people. I mention Griswald because it set a very important precedent for Roe versus Wade. Specifically, the right to privacy was crucial in the Roe decision. So let's talk about it. Roe was decided in 1973. At that point, six states and Washington, D.C. had legalized abortion in at least some cases, but abortion was still totally illegal in all other states. An anonymous plaintiff, identified only as Jane Roe, brought a class action challenge to the Texas criminal abortion laws. She was pregnant and unable to travel out of state for an abortion. Sarah Weddington, the attorney who argued her case, is believed to be the youngest person ever to win a case at the Supreme Court. She was only 26. The justices on the court at that time were pretty divided on the issue of abortion. So they hammered out what they considered to be a compromise. They said that the decision to have an abortion is a protected constitutional right because, again, the Constitution guarantees a right to privacy. And then they created a trimester system in the first trimester, They said states cannot limit the right to abortion. In the second trimester, states can impose restrictions, but only if they're reasonably aimed at protecting the health of the pregnant person. Then in the third trimester, states can limit or prohibit abortion once a fetus is considered viable, so long as exceptions are made to protect the health and life of the pregnant person. And the justices acknowledged that this line of viability is not set in stone. They said that ultimately it's up to a person's doctor to determine whether or not a fetus is viable. Roe is a controversial decision, and not just because some people believe the court shouldn't have legalized abortion. Many people have argued that this privacy basis is weak, that it's not explicit in the Constitution, only implied. Others point out that the question of viability shouldn't even be relevant. It wasn't settled science then. It still isn't now. And besides, why should the question of fetal viability even matter when we're talking about a pregnant person's control over their own body? We talked about this more in depth in episode four, which was about people who have abortions later in pregnancy. So if you haven't listened to that episode, I'd recommend doing so now. For the moment, we're going to fast forward to 1992 to the court's other big, big abortion case, Planned Parenthood versus Casey. In this case, the Supreme Court basically threw out that whole trimester framework I just explained, just dumped it right in the trash. So what happened is that Pennsylvania had enacted a bunch of new abortion restrictions in the late eighties, a 24 hour waiting period, parental consent and a requirement that a married woman had to notify her husband before having an abortion. Planned Parenthood of southeastern Pennsylvania challenged these laws, and the Supreme Court upheld all of them except the husband notification requirement. They affirmed the idea from Roe that abortion should be legal up until viability. But they established a new standard. They said that states can restrict abortion access so long as those restrictions don't impose an undue burden on the person seeking the abortion. This is what opened the door to the situation we have now where abortion is technically a constitutional right, but it has been legislated nearly out of existence in many states. However, this undue burden idea has been used to strike down some abortion restrictions. In fact, it was crucial in whole women's health versus Hellerstedt, a Supreme Court case from 2016. We've talked about this case a bit on the show before. It was a challenge to some provisions of a Texas law that forced half the state's abortion clinics to shut down after it was enacted in 2013. The law, called HB two, included a whole host of restrictions known as trap or targeted regulation of abortion provider laws. These laws imposed requirements on abortion providers and abortion providers only that go far above and beyond what is actually necessary for patient safety. In this case, the court considered two parts of HB two. The first a requirement that abortion providers must have admitting privileges in nearby hospitals. And the second, that abortion clinics must meet the facility requirements for ambulatory surgical centers. This involves rules about everything down to how wide the doorways and hallways need to be, based on ample scientific evidence that abortion is incredibly safe, the Supreme Court did indeed strike down these restrictions, ruling that they placed an undue burden on Texans seeking abortions. So that's it, right? No more trap laws. Unfortunately, no. States that oppose abortion access weren't exactly eager to bring their laws in line with this decision. So many states still have trap laws that will stay on the books unless or until they're challenged in court. And this brings me to the last past case I want to mention. This one is called June Medical Services versus Russo. And it was decided just last year. This was a challenge to a Louisiana admitting privileges law identical to the one the Supreme Court invalidated in the whole woman's health case. This case was notable for several reasons. For one, it was the first abortion related case the Supreme Court heard after the retirement of Justice Anthony Kennedy, who was an important swing vote in the whole woman's health decision. Second, in this case, the state of Louisiana tried to argue that abortion providers don't have standing to challenge abortion restrictions on behalf of their patients. Standing just means that someone has the right to sue. Why does this matter? Well, let's think back to Roe versus Wade. In order to challenge abortion bans, the lawyers in that case had to find a plaintiff, an actual person, to stand up and say, I'm pregnant. I don't want to be. And the state is violating my constitutional rights by banning abortion. That plaintiff, Jane Roe, later revealed her identity. Her real name was Norma McCorvey. Because lawsuits take so long, Norma never actually got to have her abortion. She had to carry that pregnancy to term and give the child up for adoption. And this was the third time in her life that she had done that. Norma was involved with pro-choice activism for a few years after the decision, but later said publicly that she'd changed her mind and she believed abortion was wrong. But then just before her death, she confessed in a documentary interview that actually she hadn't changed her mind at all. She had just been paid to say those things by anti-abortion groups. So Norma was a complicated person. But what she went through was horrible. This is why it's so important that abortion providers are able to challenge abortion restrictions so that we don't have to find another Jane Roe. Fortunately, in June, medical services, the Supreme Court did side with abortion providers, ruling that they had standing and that the Louisiana admitting privileges law was unconstitutional. In this case, Chief Justice John Roberts was the swing vote. He sided with the court's more liberal justices. However, the Supreme Court now has a 6 to 3 conservative majority, as opposed to the five four majority involved in this case. It's very possible that June medical services was the last Supreme Court decision we'll hear in favor of abortion rights.
Pro-Abortion Chanting [00:14:26] Abortion rights are under attack. What do we do? Stand up, fight back. Who's streets. Our streets.
Garnet Henderson [00:14:28] Okay. So here we are now in the present. We knew heading into this term that there would be two abortion related cases on the Supreme Court's docket this year. And now we have two legal challenges to SB eight, Texas's near-total abortion ban in play as well. The Supreme Court has already heard oral arguments in one case, so I'm going to talk about that one first. This case is called Cameron versus EMW. Women's Surgical Center. It has to do with the Kentucky ban on D and E, the most common second trimester abortion procedure. If you need a little review on D and E, hop back to episode one. The plaintiff, EMW Women's Surgical Center is one of only two abortion clinics in Kentucky and the only clinic in the state that offers D and E. This ban was struck down. It is not in effect. But now Daniel Cameron, the Kentucky state attorney general, is arguing that he should be able to intervene in order to defend this law. You see, Kentucky's current governor, Andy Beshear, was the attorney general when this law was passed. Bashir is a Democrat and he refused to defend this law. But the state's health secretary did defend it and exhausted all appeals. The law was deemed unconstitutional in federal court, but now Cameron is trying to step in and say that he should be allowed to defend the law because his predecessor did not. You may also know Daniel Cameron, by the way, as the man who declined to press criminal charges against the police officers who killed Breonna Taylor. Oral arguments happened in this case on October 12th. We won't know the court's decision until sometime this spring. The case you've probably heard more about the one that is a direct challenge to Roe versus Wade is Dobbs versus Jackson Women's Health Organization. Jackson Women's Health Organization, a.k.a. the Pink House, is Mississippi's last abortion clinic. You might remember that back in episode five, we met the Pink House Defenders, the people who escort patients and stand up to protesters at this clinic. The pink house is challenging a mississippi 15 week abortion ban. This law also is currently blocked and not in effect. But the question before the court in this case is whether pre viability, abortion bans like this one are constitutional. So this is the court's opportunity to overturn Roe and Casey, if that's what they want to do. Oral arguments are set for December 1st. Again, we won't know what the court decides until this spring. So those are the cases to expect. And then along came SB eight. We have talked about this near-total abortion ban in Texas and its strange civil enforcement mechanism a few times on the show. So if you need a refresher, go back and listen to the last few episodes. But a lot has happened since we last talked about SB eight. First of all, there are now multiple legal challenges here. So there's the lawsuit we've talked about, which was brought by Texas abortion providers and advocates. That one is called Whole Woman's Health versus Jackson. Whole, Women's Health and the Supreme Court Part two. And now we have another lawsuit from the federal government. This one is called United States versus Texas. Very straightforward. In this case, the Justice Department is making several arguments, including that SB eight violates long standing Supreme Court precedent, but also that it violates the supremacy clause, which is part of the Constitution that says federal laws take precedence over state laws. Essentially, they're saying, hey, this is not a type of law that a state should be allowed to make. So back to Whole Woman's Health versus Jackson. There has been a lot of back and forth here, but the gist is that SB eight remains in effect and this case is just stuck in the Fifth Circuit Court of Appeals. So Texas abortion providers made an emergency request to the Supreme Court asking the court to decide on a key issue here, which is whether or not federal courts can even intervene to block this unusual law. And all of a sudden, last week, the Supreme Court granted that request the same day they granted a request in United States versus Texas to decide on a similar question whether or not the federal government can even sue Texas over this law. The real kicker here is that the court has set oral arguments for both these cases on the same day, and that day is November 1st. That's Monday. This is so, so fast. The only other time in recent memory that the Supreme Court has moved things along this quickly was in Bush versus Gore, the case where they basically decided the results of a presidential election. So oral arguments on November 1st and when will we know what they decide? We have no idea with these emergency requests. Sometimes the court issues a decision quickly, but if they want, they can also just make us wait until next spring. In the meantime, the justices had an opportunity yet again to block SB eight while they consider these challenges. They declined to do so. Only Justice Sotomayor dissented, arguing that SBA should be blocked immediately. Every day the court fails to grant relief is devastating, she said, both for individual women and for our constitutional system as a whole. Now the state of Texas did in one of its briefs straight up, ask the Supreme Court to overturn Roe and Casey right now. And the court could do that, but they probably won't. As far as we know, they're only going to consider these procedural questions, not the substance of SB eight, though you never know. And this extremely expedited process has led some people to speculate that the Supreme Court does want to consider the constitutionality of SB eight and that they want to do it alongside the Mississippi 15 week ban. Basically, they could allow one or both of these cases against SB eight to go forward and then lump it in with the Mississippi case when they consider the question of whether pre viability abortion bans are constitutional. Are they going to do this? Nobody knows. They might decide on these procedural questions and then just wash their hands of SB eight. Let the lower courts decide for now. After all, if what they want to do is overturn Roe. They can just do that with the Mississippi case. So is that really what we're looking at here? Is the Supreme Court about to allow half the country to outlaw abortion? It's absolutely possible. Another option is that they'll decide SB eight, a six week ban is too far, but a 15 week ban, that's fine. Either way, the stakes are incredibly high. To help illustrate that, I'm now going to bring in Elizabeth Nash of the Guttmacher Institute. The folks at Guttmacher have identified which states are most likely to ban abortion. And they've created a map that shows just how far people in those states will have to travel for abortion care if abortion is banned.
Elizabeth Nash [00:22:37] This map. Is a map that. Is really, really hard to just even look at. I'm literally looking at this map and seeing like the interstates and thinking, how are people going to get there?
Garnet Henderson [00:22:52] On first glance, the map looks pretty simple, but so much went into creating it.
Elizabeth Nash [00:22:59] We have some sense of what states have been doing around abortion restrictions and bans, and we have some sense of where the states are in in in thinking about abortion. And we have information about abortion clinics, where they are and how far to pregnancy they go and all this kind of data. So we thought we could try to combine it all into a big map, essentially. And so what we ended up doing was identifying 26 states that we thought would act quickly and by quickly, we were thinking within a year of Roe being overturned or weakened to ban abortion to the extent possible. The list is probably what you might expect in a sense, what you've got states in the South, states in the Midwest, states in the Plains, some states in the West. And we really identified them on a couple of factors. One was, has the state attempted to ban abortion totally or at six weeks or eight weeks in recent years, does the state have a pre-Roe ban that they've never repealed? Does the state have a trigger ban? And guess what? A lot of these states are in multiple categories. And then we said, okay, are there states that seem like they would act within a year that aren't on that list? And we said, yes, there are few states. So we said Indiana is one of these states which in a way, we were very surprised that it hadn't adopted a six week ban. So it was like, okay, we're adding you to the list, Florida. We're adding to the list Nebraska, Wyoming, Montana.
Garnet Henderson [00:24:43] It's significant that Elizabeth and her team have identified Florida as a state likely to ban abortion, because right now, Florida is a really important point of abortion access for a lot of people living in the South.
Elizabeth Nash [00:24:56] We put Florida on on the list because there has been such a conversation around abortion there for years and there have been other attempts with total abortion bans even in the state. And right now, both the legislature and the governor seem to be walking down a path towards a Texas style ban potentially. So we added Florida to this list. And yes, right now abortion providers are going up to 24 weeks and people from nearby states like Mississippi, Alabama, Georgia come to Florida for that care. And if Florida does ban abortion or limit abortion more than it does now, people would have to go north. And if you're going north, you start thinking about North Carolina, Virginia, D.C., Maryland, and the way we set up this map we had sort of these states that are the closest states to people. So North Carolina all of a sudden is the closest state for many people. But I can imagine that should should this befall us? Should these states ban abortion? It wouldn't just be North Carolina. Of course, people would be going it looking for Virginia. They would be looking for Maryland, D.C. So it it really would be disruptive not only for the states where abortion is banned, but for the entire country.
Garnet Henderson [00:26:21] The report also identifies destination states. These are the states that people will be most likely to travel to for abortion care. On this list are California. Colorado, Illinois. Kansas, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Virginia and Washington. These aren't the only states where abortion will be legal, just the ones people will be most likely to travel to. And it's kind of surprising to see Kansas on this list because Kansas has a lot of abortion restrictions, but it also has a governor who supports abortion access, even though its legislature does not, and an anti-abortion measure on the ballot for 2022, which voters could reject.
Elizabeth Nash [00:27:11] It just tells you what limited access we would be talking about if we're saying people could go to Kansas. In all of these states that we've identified as places to go to, you have to think about the capacity and then the ripple effects. Certainly, abortion providers have the thinking very hard with abortion funds and practical support about how to increase capacity, how to make this process as smooth as possible for people, how to help people get the money they need for the abortion and the travel and the childcare and the time off of work how to make this all work. Right. Certainly all of these conversations are happening. But should states be able to ban abortion right after Roe is overturned? If it's overturned by the state, the conservative states will just move very quickly. And there's the potential for the clinics not to be able to keep up in the short interim period.
Garnet Henderson [00:28:05] The map takes into account three potential scenarios one in which these 26 states are able to ban abortion entirely. One in which they ban abortion at 15 weeks. And one in which they ban abortion at 20 weeks. This takes into account the different sorts of decisions the Supreme Court could make, and it shows that even if abortion weren't totally banned in these states, the loss of access would be huge.
Elizabeth Nash [00:28:34] One of the things that struck me when we started to see states ban abortion in 22 weeks of pregnancy was how it showed that there were very few providers at that point in pregnancy. That's why those laws are in effect, right? There were no providers to challenge the law. And so this 22 week, even though they're unconstitutional, are in effect. And similarly, around a 15 week abortion ban, you'll find some providers in states who could provide abortions later than 15 weeks, but not all of them. And so you're starting to see the shrinking of the abortion provider pool and then how far people would have to go in order to access care.
Garnet Henderson [00:29:18] So let's use the example of Texas, which has 10% of the nation's population of people, of reproductive age.
Elizabeth Nash [00:29:26] Already we're seeing the impact of the six week ban on Texas right. The clinics in Oklahoma and Louisiana are had this huge influx of patients and people are going much, much further afield from home and for days on end. Right. Because they get their abortion to get back. This is a huge process. Okay. So if Texas were to totally ban abortion and along with these other states sort of together banning abortion, you start looking at a one way distance of 542 miles to the next closest clinic. So what we were identifying was the closest clinic, which of course, might not be the clinic somebody goes to. But just to sort of put that in context of so if these states to ban abortion, that distance is increasing dramatically. So, yes, you're talking about almost 550 miles one way. It's a massive increase in the average distance from what it was in January before the six week ban went into effect in Texas. The average distance was 17 miles.
Garnet Henderson [00:30:41] Texans theoretically have the option of going to Mexico, but that's not going to be safe for everyone.
Elizabeth Nash [00:30:48] Yes, Mexico is much closer and then you start thinking, okay, so if we're thinking about southern Texas, who can cross the border? Who can come back from crossing the border. What else? What options are available to people? Are there border patrols? Are there county border issues? What what is happening? And so one thing this map does not take into account is Internet access. We were thinking about traveling, but clearly Internet access is key. And one of the points we were also trying to make was that Internet access to abortion is not enough. You need both. We need telehealth access and we need in clinic access. So the loss of clinics is very important.
Garnet Henderson [00:31:41] Just to give a few more examples, if these 26 states were to ban abortion entirely, the closest clinic for people in Louisiana would be an average of 630 miles away. That's a 1,720% increase in distance. The next closest clinic for people in Florida would be 567 miles away, 428 miles away for people in Mississippi and 247 miles away for people in Utah. And even if people can scrape together the resources to travel, there are so many other obstacles they could encounter.
Elizabeth Nash [00:32:23] You know, it can be difficult to get through the south. Sometimes right, there are hurricanes. There are winter ice storms. So these travel distances not only are fast, but there are a lot of things that can hamper that even if you are able once you're able to get all the ducks in a row to get the money and the logistics and the child care and everything set. There are other things that can come in and make access impossible.
Garnet Henderson [00:32:54] So is there any news here that isn't bad? Well, Elizabeth says there's some.
Elizabeth Nash [00:33:01] The states along the West Coast, some states in the mid Atlantic, the states in the northeast and in Illinois, New Mexico. These states have primarily for about a decade or so, five years to a decade, been looking for ways to protect abortion rights and access because they have been trying to put in place protections in case basically the bottom falls out and Roe is overturned and other states can be ban abortion. Right. And they've been making really good strides. And there's more to do. We can come. There are more ways to support abortion patients and providers than these states have done. But the fact of the matter is that at least there has been some steps taken in order to set statutory protections for abortion, increase Medicaid for abortion in places like Illinois, Maine, allow APCs or advanced practice clinicians to provide abortion services. And in some states like Oregon and Washington, you have funds set up for people who don't qualify for Medicaid to get reproductive health care. So you know how can we set up funds to support abortion patients coming into these states? Right. Perhaps you can take that idea for people who cannot access Medicaid. You know, maybe we can think about setting up funds for people who are coming into to the states. So if this scenario unfolds where abortion is overturned and a huge number of the states, maybe not all these 26, but a huge number of the states speak on abortion. Really? How will we end up responding five and ten years down the road? Once the immediate aftermath has kind of settled. What really happens, like what happens to abortion access. At some point, do we come back and do, do states repeal their abortion bans because they realize at some point these are shifts in their legislatures, there's a political shift? I think maybe at some point they realized that this was not the right way to go and we need to take a public health response to abortion. I don't know the answer to that, but it's something that this map makes me wonder about what is going to happen down the road and how can we fight back.
Garnet Henderson [00:35:22] I will link to the interactive map and all the amazing data from this project in the show notes. Please check it out. I'll also give you the link for Supreme Court oral arguments if you want to listen in. They are live streamed. The Texas cases are November 1st. Mississippi case is December 1st. You heard some audio in this episode from the recent Rally for abortion justice here in New York City. I'm working on an episode all about these rallies and I want to hear from you. Thank you so much, by the way, to the people who have already reached out in response to my call on social media, especially if you work in abortion access or reproductive justice, I'd love to hear what you thought about the march in your community, what worked, what didn't, where it hit the mark and where it might have missed. You can find me at accesspodcast@protonmail.com. That's all for today's show. ACCESS is produced by me, Garnet Henderson. Our logo is by Kate Ryan and our theme music is by Lily Sloan. Thank you to Elizabeth Nash and the Guttmacher Institute. Don't forget about our new merch store. That link is in the show notes. You can also donate directly to support the show and that link is in the show notes as well. And please, if you like the show, share it with a friend. Don't forget to subscribe to access wherever you get your podcasts and leave us a rating or review so more people will find the show. Follow us on Twitter and Instagram @accesspod. A full transcript of this episode will be available on our website, apodcastaboutabortion.com.
