Predictions for a Post-Roe America

America, predictions, PostRoe

Justice Samuel Alito’s leaked draft majority opinion in Dobbs v. Jackson Women’s Health sent a shock wave across the country. After nearly a half century, it appears that the five-vote conservative majority on the Supreme Court is set to overturn Roe v. Wade.

If the draft emerges as the Court’s decision and abortion access is left up to the states, what could it mean in red and blue parts of the country? What was the path that brought the Court to this immense turning point? And where do Americans go from here?

To answer these questions, Claudine Ebeid, executive producer of Atlantic Podcasts, asked three Atlantic writers for their reactions and predictions:

Listen to their conversation here:

The following transcript has been edited for length and clarity.

Claudine Ebeid: As you probably heard, big Supreme Court news broke this week when a leaked draft opinion from Justice Samuel Alito outlined a decision to overturn Roe v. Wade, an outcome that is not certain but appears likely. Reversing this landmark abortion law has tremendous implications. You may still be processing this information and what it means for America. I know I am. I’m Claudine Ebeid. And for this episode of Radio Atlantic, I turned to three Atlantic writers to understand what it all means.

Ebeid: One sentiment all the writers agree on is that this is a shocking moment. The first person I talked with was Molly Jong-Fast. She writes a newsletter for The Atlantic called Wait What?, which pretty much sums up how many people are feeling. Molly is very outspoken in her belief that women should have the right to an abortion. Hello, Molly.

Molly Jong-Fast: Hi. Thanks for having me.

Ebeid: Thanks for coming to talk to us. Okay, Molly, I’m going to ask you to please go back in time all the way back to Monday. It feels less like days away and more like years away, like so much has felt like it’s transpired. Can you tell me where you were and how you first got the news?

Jong-Fast: It was such an interesting bit of news because, again, a lot of us thought since August 2021 that there was a really good chance that Roe was done. And we thought this because of SB-8. This Texas state abortion law, which was allowed to go into effect on September 1st, was the brainchild of Governor [Greg] Abbott. But even before that it was the brainchild of this organization that had brought these quote unquote, heartbeat bills—though, again, they’re not hearts; it’s cardiac activity. And again, these are, you know—it’s a cardiac the size of a grain of rice. But so this had been a movement that had started in Ohio as the very fringes of the, I want to say, anti-choice of the anti-choice movement. And so I think it was pretty clear then that this was going to happen. But this leaked draft opinion that was published in Politico… I was shocked and not shocked. I mean, I got going on it. And I, you know, immediately was like—oh, yeah. You know? And I mean, it’s so interesting because there’s such a high level of gaslighting with these conservative justices. And so, you know, there are things where I’m very believing because I come from, like, a crazy alcoholic family. So I’ll go along with almost anything. I have to read something a couple of times—like I’ll reason and I’ll say, like, maybe that’s right. And then I’ll go: Wait, wait, wait, wait, wait. That’s not right. So I just was absolutely flummoxed.

Ebeid: As you said, you know, since the Texas law, it’s been months that we’ve sort of been hearing and talking about it, like: “This is coming.” Like we really think that they’re going to overturn Roe, like it’s going to happen. So to hear or to see something, I should say that if a draft is leaked—that sort of already tips in that direction that yeah, what we’ve been talking about looks like it’s going to happen. Still, it kind of hit everybody like a ton of bricks. Why?

Jong-Fast: So, you know the Supreme Court: Quite a little scam they got going there, right, where they release all the opinions and then they go on vacation. Like, you know, there’s no possibility for, “Let’s have a little dialogue about this.”

Ebeid: I mean, it’s a smart plan.

Jong-Fast: For them. And so I was surprised it leaked. But again, the Roe opinion leaked. Right.

Ebeid: But like by hours, right?

Jong-Fast: Not by days. I mean, it’s such a seismic change in the way American women live. For example, you saw a Democratic governor—Tony Evers from Wisconsin—saying as long as there’s a Democratic governor, women will always have the right to choose in the state of Wisconsin. Governors will be able to control what women can and can’t do with their own bodies. And across the state line, it will be a completely different rule. I mean, it is so insane. It’s one thing to have states that are a little bit different, but you all have states where you absolutely have no bodily autonomy as a woman. And then 20 miles across the border you do. I mean, it’s just so mind-blowingly huge.

Ebeid: But isn’t that kind of like what has been happening with these state laws, little by little? And yes, this kind of solidifies that, right?

Jong-Fast: Yeah. I mean, I think that was always sort of the play—that they were going to use federalism to undermine it. Where this ends, no one knows. Right? I mean, it’s scary for that reason. But it’s also scary because—and I think this is the unintended consequence that these Republicans don’t understand, these sort of zealots, religious people who have gotten into the courts don’t totally understand—this is going to wear away at the foundation of America. You are not going to be able to have a country made of states that are so radically different.

Ebeid: Don’t you think our states have always kind of been radically different?

Jong-Fast: I think that you have one party that is working really hard to make them even more different. And I think when you start to have laws—which again, those are coming up now and they’re starting—these laws that say you can’t go to another state to have an abortion. And those are coming.

Ebeid: These are criminal laws, we should say.

Jong-Fast: And when those start, when you start going down that road—I mean, are you even the same country? Right. I mean, I think these are unintended consequences. But I think that we’re going to be grappling with them for a long time.

Ebeid: I want to go back to the moment that you heard the news, and I’m wondering how quickly your thoughts turned to your mom and your mother’s generation. You know, just wondering if she was on your mind, and did you call her? Did you want to talk to her?

Jong-Fast: When I saw that video of Senator Elizabeth Warren finding out and being visibly shaken, I thought of my mother, and I thought about these women. You know, my mother’s 80. And these women are…you know, they have lived for 49 years with bodily autonomy. And they are being told today that that is no longer the law of the land.

Ebeid: Do you think you could take a moment for people who don’t know who your mother is to tell us who she is?

Jong-Fast: So my mother [Erica Jong] is a feminist writer who in 1973 wrote a novel about being an educated, ambitious woman in America. It was called Fear of Flying, and it was about sexual liberation and freedom. It was a—I want to say, a shot in the sexual revolution. It’s not that she got abuse, exactly, because of it, though she did get some. It was largely that she became sort of synonymous with the kind of sexuality that really undermined her academic achievement in a way that was very hard to watch for me. And I think it was a huge privilege to write a book that had that kind of impact and sold that many copies. But I also think that she could never live it down, and I think it was very tough.

Ebeid: How did your mom talk to you about Roe when you were growing up?

Jong-Fast: So my mom was obsessed with this idea. If I needed to have an abortion, she wanted me to have an abortion. I don’t think we had a huge amount of personal experience with abortion or with pregnancy in general. You know, my mother had me at 37, so I mean, I had my kids in my 20s. But it was because there was this time in the ’90s where it felt like they might take away abortion, between Reagan and Bush—Bush one—where it felt like maybe they would take abortion, that abortion was under attack. And my mom said: “You know, if you need an abortion, I will move heaven and earth.” You know, it’s like a Jewish-mother thing. Just like—If you need something, I will get it for you. I was like, 12; I wouldn’t have sex for a number of years. I mean, I think I just was like, “Okay.”

Jong-Fast: So I think for her it was very attached to bodily autonomy, freedom, the ability to make choices about family. I mean, we see the statistics that a lot of these people have abortions. These women who have abortions, you know, already have two children. They just can’t afford to have another kid. They can’t miss the time off work. They can’t do it. In my mind, anyway, that was what it was always taught to me, was that…you could control your own body and that you didn’t have to do things just because they had happened to you. I’ve seen such insane Republican talking points on this. And the favorite they have is that you should be able to move like this. These are people who can’t afford the gas to go and get an abortion, and they’re going to move? I mean, because of the years and years of abortion doctors being murdered and targeted and harassed… I’ve talked to these doctors, and they are quite scared and traumatized. And they know they’re providing a service for women who have no other options. And, you know, I love the activist branch of of abortion activists. But, like, for a lot of these women, it’s not a choice. Like [they’re] just hanging on, and it’s a question of whether or not they’re going to, you know, fall below the poverty line and lose everything.

Ebeid: I should say you wrote a piece for The Atlantic, and the title of the piece is “My Mother Was Wrong.” And I’m wondering, are you thinking: Okay, there are things that they did wrong in the ’70s, like maybe my mom and her generation? This process clearly didn’t work out the way they wanted it to. And are you thinking there are lessons to be learned for people who are at this moment, where they are thinking, What are we going to do?

Jong-Fast: Well, I think with the second-generation feminists, the second-wave feminists, they got into their own fame in a way that was very destructive. I remember watching these television panels of my mom fighting with some other conservative and thinking, This is not what this is supposed to be about. Certainly, if Phyllis Schlafly had never existed, we’d be a little better off, for sure. I think not being organized the way the right’s organized—I mean, the Koch brothers and ultimately probably Peter, whose last name I will not say—there are a lot of these types who are very smart and organized, and they pour money at the problem. And they were working on the legislative side in a way that Democrats were not.

Jong-Fast: This is conventional wisdom here. I think that a lot of people felt that liberals just got distracted in sort of shiny things, and didn’t focus enough on, like, state legislatures. And I interview all these Democratic politicians all the time. I always feel like the problem is they think they’re the good guys. You know, largely they are. But the problem is the good guy doesn’t necessarily win. [It’s] almost as if they’re just unable to explain: If you’re a poor woman in Mississippi, we’ll talk about Mississippi because this is Dobbs v. Jackson. There are about 350,000 Mississippians who live under the poverty level. Okay. You’re one of those women. You get pregnant. You can’t have this baby. You can’t afford it. And you can’t have an abortion now, because you can’t have abortions in Mississippi and you can’t afford to miss two days of work and go to a motel and drive to whatever is near you, which at this point for Mississippi is not, you know—it’s not Louisiana. If Democrats were better at messaging, that woman would not have celebrated the fall of Roe. But you and I both talked about this. There is a real disconnect. There are women in Mississippi who will celebrate the end of Roe and then find themselves needing an abortion and be like, “Oh, my God,” I mean, it’s funny.

Ebeid: But maybe they won’t be like, “Oh, my God,” because I think for, you know, a lot of people, this is a belief that they hold very dear and closely.

Jong-Fast: I mean, it’s certainly possible. But I think you’d be surprised when you get to a place where you’re so desperate, and I mean, again, like Amy Coney [Barrett] has this argument now that you can leave a baby for adoption without any kind of…

Ebeid: Haven laws. Right?

Jong-Fast: Right. That perhaps that will mean that women will want to put these babies up for adoption. I don’t know about you, but I was pregnant. That is… It’s a really massive undertaking. And it’s a year of your life. And then you have other children, and you’re going to tell them that they’re having a sibling? But the sibling is never, you know… I mean, it just strikes me as an absolutely impossible situation.

Ebeid: You’ve written that peaceful protest is the next step here. And, you know, that’s definitely one answer to this problem. Yeah. Is that going to work? Is that enough? I mean, you just described how Republicans who do want to overturn Roe are very organized and methodical around how to go about making this happen. Is peaceful protest—are women’s marches really going to be the thing?

Jong-Fast: You know, I actually think they’re much more powerful than we think. I think if you look at Obamacare, what saved Obamacare were those people lying in the doorways of their legislators’ offices. [John] McCain was not a huge fan of Obamacare, but he did that thumbs down. And I actually think that peaceful protest is extremely powerful. And I mean, I remember when Trump won, there was an enormous march. He sort of knew that there was only so much he could do. And that’s why when he would say, you know—there is now reporting that he said to Mark Esper—“You should shoot the protesters. Can’t you just shoot them in the legs?” Again, we had heard him say stuff like that. But I think those protests really got to him. And I think they actually really do get to politicians. And I think one of the things that’s really been tough about this sort of new, modern Internet age is that people don’t understand quite how powerful protests are. And in the 1960s, you know… they didn’t have anything we don’t have now. And they were able to completely change the world.

Ebeid: Molly Jong-Fast captured some of the feelings of the left about hearing this news. Her most recent article for The Atlantic is “My Mother Was Wrong About Roe v. Wade.”

Ebeid: The Atlantic often turns to attorneys to help us make sense of our laws. One of those attorneys is Mary Ziegler, a visiting professor at Harvard and the author of Abortion and the Law in America: Roe v. Wade to the Present. She talked to me about what the legal dominoes of this opinion might look like.

Ebeid: Mary, can you take me back to Monday when you first saw the news that this draft opinion had leaked? And just tell me what your reaction was in that moment.

Mary Ziegler: I was kind of shocked, I think most people were. By what was I shocked? Since December, I’ve been expecting the Court to reverse Roe v. Wade this June. So the fact that the draft did that was not really surprising. The fact that it leaked was surprising. There’s not, to my knowledge, been a leak like this in the history of the Supreme Court. So I was shocked by that. And I was a little bit surprised by the tone of the opinion. There has been, I think, a sense that the Court would overrule Roe and that that would potentially do institutional damage to the Court. So I was expecting the Court to have the sense to try to kind of do damage control, right? To kind of frame the opinion in a way that would minimize the hit to the Court’s popularity that we’re likely to see, the kind of pushback from Democrats that we’re likely to see. And this opinion—or this draft, anyway—really doesn’t do any of that. It feels almost like a taunting kind of opinion. And so that surprised me, too.

Ebeid: This is still, you know, of course, a draft opinion. And I’m just curious what you think the likelihood is that this opinion is actually pretty close to what we’re going to see. And if not, you know, what other potential options are there for a final opinion?

Ziegler: The first thing to be clear about is this is a first draft, and it’s from February. It’s quite common for the Supreme Court to go through dozens of drafts and sometimes as many as 20 before a final opinion issues. So there is reason to believe that the details of this draft will not be the same as what we see in the final opinion. That said, I’d be really surprised if the kind of general thrust of the opinion or the votes in the opinion changed much. The reason for that, I think, is one, you know, the conservative justices have been pretty clear that they think Roe is wrongly decided. And two, you know, the leak itself would make it harder for them to switch their votes. I think they would be perceived as caving to political pressure, and that would be particularly intense on the right. So I think the general conclusion won’t change, and I think the general mode of analysis won’t change. By which I mean: I think the Court is going to be focusing on what the justices frame as the original public meaning of the 14th Amendment and arguing that that is not consistent with the idea of a right to abortion. And the argument is that that’s true—because at the time the 14th Amendment was passed, no one thought there was a constitutional right to abortion and, in fact, many states were criminalizing abortion, which would be inconsistent with the idea that there’s a right to abortion. So I think that kind of historical methodology is something we’re quite likely to see. So the broad contours of the draft are likely to be there in the final opinion, even if the details change.

Ebeid: Yeah, and just to remind people who are listening, the 14th Amendment was passed in 1868.

Ziegler: Right. So we’re talking about 19th-century popular opinion.

Ebeid: Well, so let’s take the draft as it is. It it does not outlaw abortion on the federal level, but what it does is give the states total legislative control over abortion. And that means it looks like 26 states will have bans on abortion. And just kind of walk me through how quickly something like that happens. Like, is it immediate once the opinion is issued?

Ziegler: It really varies by state. Some of the state laws are not particularly clear. So, for example, there are some states that say the attorney general has to certify that Roe has been overturned and that then the law would go into effect sometime thereafter. Sometimes, you know, roughly [a] 30-day window. Other states just simply say “Once Roe is gone, our laws go into effect.” Or there are pre-Roe criminal laws where the state really just hasn’t said what happens at all, right—other than the laws still on the books that can theoretically spring back into life. So in some instances, we don’t really know exactly when the law would go into effect. In some instances we know it would be a matter of weeks, or maybe a month. But we would expect to see states move on this quite quickly after the Supreme Court overturns Roe.

Ebeid: What, if anything, do states legally owe to one another in terms of respecting the law in that state, like the ability for somebody to be able to go and have an abortion in New York? Is there legal footing for a state to say, “When you come back, we can prosecute you”?

Ziegler: It’s complicated. That is the short answer, right. So, one: There are now constitutional questions. So, first of all, at the moment, with maybe the exception of a bill that’s floating around in Louisiana, states are not taking the position that they want to punish people who have abortions. At the moment, it’s mostly punishing doctors who perform abortions—or other people who quote unquote, aid or abet abortions, which could include anybody from abortion funds to partners to parents who are helping people have abortions. But I think it’s reasonable to ask whether states are eventually going to punish people who have abortions, too. But in terms of, you know, can states regulate what happens in other states, there are constitutional questions about that—involving everything from the right to travel to the state’s ability to affect commerce in other states to the obligations of states under some circumstances to extradite fugitives to other states—depending on the facts of what’s going on. And then there are just questions, what are called choice-of-law questions, which arise when you have two states that are taking contradictory positions on an issue. The question becomes, you know, whose law applies, and how do we know that? The Supreme Court precedent, even on that question, isn’t very clear. So there’s a lot of uncertainty. Obviously we know the Supreme Court is conservative and doesn’t think there’s a right to abortion. It’s reasonable to assume that that might cast some kind of shadow over the Court’s reasoning. But these are all areas where the law is particularly unsettled.

Ebeid: I think people are wondering about what else comes next in terms of beyond abortion laws. Are there other doors that were opened in this opinion by Justice Alito that, you know, could have people revisiting other precedent-setting laws?

Ziegler: Yeah, there are. There definitely could be. Right. I mean, so Justice Alito’s draft tries pretty hard to say “You know, this is really about Roe. Roe is different.” And that’s not a completely implausible argument from a political standpoint, because within the conservative legal movement and certainly the anti-abortion movement, there is a view that Roe is sort of the ultimate bête noire: the ultimate example of judicial activism. And so it’s fair to assume that conservatives do view Roe as different.

Ziegler: That said, a lot of the reasoning in the opinion could apply very easily to a variety of other constitutional rights. So the reasoning, right, is that in the 19th century—at the time of the ratification of the 14th Amendment—there was no recognition of an abortion right. And abortion was being criminalized. I mean, of course, there was no recognition of a right to same-sex marriage. Of course, there was no sense that interracial couples could constitutionally demand to get married. Birth control was being criminalized at the state as well as federal level. Sex-education materials were being criminalized at the state as well as federal level. And so the idea that that methodology naturally applies to Roe and not to anything else just doesn’t hold much water.

Ziegler: The other way the draft tries to get around this is essentially by saying, look, you know, what makes abortion different is because it’s the taking of a human life: that fetal life, or the life of an unborn child. The opinion kind of toggles back and forth. That kind of language is valuable in ways that make the abortion right different. If that’s how the Court sees things, that’s going to open the door to a different potential issue, which is the possibility that the Court will recognize personhood. So it’s worth kind of unpacking. What is that? So the 14th Amendment uses the word person in describing rights to due process of the law and equal protection of the law. And anti-abortion groups take the position that the word person applies before as well as after birth, and that therefore abortion is unconstitutional. Meaning you could not have legal abortion in California or New York or anywhere else. And groups have already asked the Supreme Court to recognize this argument. So the more the Court kind of leans into this, you know, “abortion is different because it’s the taking of a human life” kind of reasoning, the more I think anti-abortion groups are going to push the Court to go even further on that. So I think the Court is sort of putting itself in the position of either kind of dropping hints that maybe you could get a decision declaring abortion unconstitutional, or maybe down the road you could get the Court to revisit a wide variety of other precedents as well.

Ebeid: So I want to get back to this thing that you said in the very beginning. You say there’s what feels like taunting in this opinion. And I’m curious why you think that.

Ziegler: Just the language that Roe was, you know, egregiously wrong. There’s comparisons of Roe to decisions upholding racial segregation. There’s a whole wide variety of pro-life talking points in this opinion, like the idea that …[Roe]… distorted the rest of American jurisprudence, that Roe inflamed our national politics. There’s sort of footnotes suggesting that people who wanted abortion to be legal were racist. There’s not a lot of sense that anyone reasonable would disagree with or be hurt by this opinion. This feels like it’s written for an audience that already agrees with and will celebrate this opinion, and really not for anybody else.

Ebeid: Does this feel like a new moment in the state of the Supreme Court?

Ziegler: It does, yeah, absolutely. I mean, so when I was in law school and when I was a younger legal scholar, there was this sort of consensus that, you know, the Court would definitely stray from popular opinion, but not too far right. So when I was a young legal scholar, people would write books called, like, The Most Democratic Branch, which was Jeffrey Rosen’s book about the Supreme Court. And that was because the Court really didn’t often do things that were very, very unpopular or didn’t want to wade into many culture-war issues, didn’t want to have to get its hands dirty. And that was what everybody had come to expect. So even when the Court did things that were really divisive, it often did them in ways that, you know, that sort of tried to minimize harm to the Court’s institutional standing. And so that’s what I had come to expect. And this seems to be a court, as Justice Alito even says in this draft, basically, he says, “I don’t know if this opinion will produce a backlash, and frankly, I don’t care. That’s not my job. You know, if the Court does stuff that’s unpopular, that’s not really our problem.” That really is striking to me. And I think it’s also striking because this is what the Court is doing when everybody is watching. Right. So if you think about it, Roe v. Wade is by far the best-known Supreme Court opinion. And so if the Court is willing to kind of court the sort of political response we’d see to the overruling of Roe, you know, you can only imagine if there’s no response—if Justice Alito is right, and this basically has no consequences that anybody cares about, the Court will be completely unleashed. Right. And that’s not what we’ve come to expect from the Court, even though, in theory, the Court is not, you know, accountable to the people. No one votes for the Court. That’s always been true. The Court has always sort of acted as if there’s a check on it. And that doesn’t seem to be true anymore.

Ebeid: Stepping outside of the legal conversation, you know, I’m just wondering how in your personal life you’re talking about this, thinking about this. If you have a family, if you’re discussing it with your family. I’m just curious about—how does this make you feel as a woman, as an American?

Ziegler: It’s hard. I mean, I had to go on NPR right after the oral argument. And I’m usually … I mean, I think I’m probably well known in this space for being able to sound fairly clear-headed and evenhanded. It’s just I was having a hard time doing it. Because there’s just this lack of empathy that I heard in the justices that really disturbed me as someone who studies this and really tries to be empathetic to people with whom I disagree, because people feel really strongly about this issue. I just felt that these were justices who didn’t have that at all. Right. And that was disturbing and saddening to me. And I do have family; I have a 5-year-old daughter. And, I mean, we’ve recently moved from Florida. And that was part of the reason. I mean, I think about what it would mean for my daughter to grow up, you know, in a state that has certain attitudes about women and other people who are pregnant. And I didn’t like that she was.

Ebeid: You moved from Florida because you weren’t happy with the laws there?

Ziegler: In part, yeah. There were other reasons for the move as well. But we didn’t feel that we belonged there anymore, in part because the state had changed so much politically.

Ebeid: Have you thought about how America might look different after this law if more people start to think like that and leave their states?

Ziegler: Yeah. I had a colleague this semester say, “Well, it’s too bad because, you know, we want to have states be more politically diverse.” But I mean, of course, that’s not something you can reasonably say to people who are the ones being made uncomfortable. And it’s part of what’s polarizing the country. You know, there’s a kind of vicious cycle in which states pass really extreme policies that make people who are different politically, or even moderate, feel uncomfortable and maybe leave. And then that fuels another cycle of polarization where the people who are left vote for even more extreme policies. And then, you know, you rinse and repeat. Right. And I think part of the problem we see in this draft is that people aren’t talking to people who disagree with them. They have no empathy or concern for people who disagree with them. They demonize people who disagree with them. And that leaves you much worse off when you’re thinking about abortion. But I think that unfortunately, that’s where we are now.

Ebeid: Mary Ziegler’s most recent article for The Atlantic is “The Conservatives Aren’t Just Ending Roe—They’re Delighting in It.” Mary seems to believe that America will change dramatically if Roe is indeed overturned. The constitutional lawyer and contributing Atlantic writer David French, who writes the newsletter The Third Rail, agrees with Mary that America will change. But he has a different legal perspective on Justice Alito’s opinion.

Ebeid: Let’s go back to earlier in the week. Let’s go back to Monday. How did you feel when you first heard that the draft had been leaked?

David French: I was incredulous. It was one of the most surprising bits of legal news I’d ever seen in my life: to have this leak come out, to see an actual draft. Even though it was a couple of months old. By the time that it came out, it was one of the more stunning things I’ve experienced in my legal career.

Ebeid: That’s your reaction to the leak, which I think was stunning. What were your first thoughts about the draft opinion?

French: The actual opinion did not surprise me after the oral argument. Before the oral argument, I thought the two most likely outcomes were either incremental change—in other words, upholding the Mississippi law without fundamentally disturbing the Roe/Casey framework—or just adjusting it a bit. But after the oral argument, it became clear to me that a majority of the Court was at least seriously considering reversing Roe. So the opinion itself was not at all surprising. The author is not surprising, and the substance is not surprising.

Ebeid: Oh, you expected that Justice Alito would be the one to write this opinion?

French: Well, you know, the interesting thing is I didn’t expect it would be [Chief Justice John] Roberts, because I felt like Roberts would not be willing to overturn Roe and Casey. The assignment goes by seniority. [Justice Clarence] Thomas would be the next person; you would think he might assign it to himself. But time will tell. I think Thomas wants to write a separate concurrence. So then Alito is next, sort of on the hierarchy.

Ebeid: Yeah. Before we jump into even more legal questions, I’m interested if you had discussions with family and friends, loved ones, about this opinion and what kind of feelings you’ve heard people having about the draft, I should say.

French: You know, it’s interesting. The reaction of others has been very divided between I’m primarily concerned either from a concern over abortion rights or a gratitude for the end of Roe: sort of the pro-life or pro-choice positions. I’ve had just as many people go straight to the same-sex-marriage question, to the gay-marriage question, and the implications there. You know, I’ve been somebody who’s been a pro-life attorney for a really long time. And I remember the Casey decision in 1992, and I remember reading how Kennedy flipped. Justice Kennedy flipped after initially voting to overturn Roe and then decided by the time the opinion was issued that he was going to uphold Roe in Casey. So my position on the draft is really pretty simple. It’s just a draft. And we don’t know. We don’t know the identity of the leaker. We don’t know the state of play right now. And so I have completely sort of withheld any kind of emotional investment one way or the other in this draft. It doesn’t surprise me, but it’s just a draft. There is not a final decision yet, and these things are not final until they are published.

Ebeid: So you’re skeptical that it’s going to look like this in the end?

French: I wouldn’t say I’m skeptical. I’m just saying I’m thinking if you pushed me, I’d say it’s more likely than not that it will look like this in the end, but it is not certain.

Ebeid: Hmm. I mean, in terms of what Justice Alito wrote in the opinion, you know, rather than settling the matter, he said: “Roe and Casey have inflamed debate and deepened division.” Doesn’t an opinion like this result in that same thing? But we’re simply swinging the law in the other direction?

French: Oh, I don’t think there’s any question. There’s no way this opinion could come out that doesn’t inflame debate. This issue is extraordinarily sensitive and extraordinarily contentious, no matter which direction it pushes. And I think there are a lot of folks who thought that after Roe was reaffirmed in the Casey decision in 1992, that that might ease debate. And it did not. So the interesting thing, though, is that what’s going to end up happening—if this is the actual opinion—many Americans live in what you might call super-majority states. So if you’re in a red state like I am in Tennessee, it is a super-majority pro-life state. But if you live in California, it’s a super-majority pro-choice state. And you’re going to have most states sort of break out in that direction, where if you’re living in one of those super-majority states, your desired outcome is going to happen. And so for a lot of people, life isn’t going to change as much as you might think it would change, because, again, Roe ending doesn’t ban abortion. But for some people, it obviously will.

Ebeid: I guess I would say that like there are still “in the middle” states where it will maybe change a lot for people. And I wonder—and this is, you know, obviously outside of the legal argument—is this change one that we are going to see further entrench our differences in the states?

French: I think to some extent it will. You will see a more hardening of a blue identity in the short term, and a more hardening of a red identity. And then you’re going to have this collection of swing states, these sort of purple states. So I would put it like this. You’re going to have sort of three broad categories of state laws. On the one hand, you’ll have the New York or the California, the Illinois, which is going to be very broadly protective of abortion rights. On the other, you’re going to have a Tennessee or an Alabama or a Mississippi, that are going to be very sharply restrictive. And then you’re going to have, say, a Virginia or even a Florida or some others that are much more purple states, which might restrict abortion more than Roe permitted, but still permit abortion, say, up to 15 weeks or maybe up to 20 weeks. And there’s going to be a kind of a potpourri. And then looming in the background is: Will there be federal legislation? And, you know, the pro-life movement is going to have some challenges here. There’s an old phrase, “when the dog catches the car.” What now? And the truth is, for a lot of years, if you were a red-state legislator, there was no downside to you in sort of passing a wide variety of abortion-restrictive bills. Because you weren’t going to live with the consequences; you were going to pass them, and they were going to get blocked in court. And so you could go to your constituents and say, “I passed a pro-life bill, you know, and those darn judges blocked it.” But now, if the Alito opinion holds, those laws go into effect, and some of the legal regimes that are going to exist are confused: poorly drafted, poorly drawn. And so there’s going to be pressure on a political response to this that will create a more rational and coherent set of statutes. Because right now, some states, frankly, are a mess.

Ebeid: Okay. So given what you’ve said, I’m curious if you think that this draft opinion is a smart one to issue now in terms of maintaining stability in the country and staying away from legal chaos.

French: Right. No, I understand. I think the, you know, the decision itself—if you’re looking at the reasoning of Justice Alito—it is a historically sound history of American abortion; legally sound from the standpoint of analyzing what rights are found in the Constitution and which rights are implied in the Constitution, and which the rights are not. And now the issue that you have is the practical effect. Now, there are a number of ways in which the courts have dealt with these kinds of issues. And, you know, one is that when Brown v. Board of Education was decided, I believe the phrase was that the decision would be implemented with “all deliberate speed.” I don’t know what deliberate speed actually means, but it seems to mean “not fast.” And unfortunately, in the Brown case, the actual implementation of the decision was, you know, just not fast. Grotesquely slow—like, grotesquely slow. So there’d be some interesting questions about what, as a practical matter, the immediate remedy would be. How will the federal courts respond to various competing kinds of challenges? Will the Supreme Court, in a final draft, sort of create a kind of timetable?

French: Those are questions that are left unanswered. But I think the short answer to this—one of the important short answers for people to realize—is that this issue is so contentious that there was no legal outcome here, in my view, that wasn’t going to create a convulsive response. So a lot of folks have talked about the convulsive response on the left. In other words, there were the spontaneous demonstrations that arose outside the Supreme Court. As someone who’s come out of the conservative legal movement, I could tell you a decision upholding Roe would have a convulsive response on the right. That [it would create] a sense of, “Wait a minute; we have elected presidents and confirmed justices, and these justices do not apply the legal philosophy that we thought they had.” And so this issue is one of those so fraught that there’s no path forward where you can say this clearly reduces tensions in the United States.

Ebeid: I want to ask you about something that I think you probably love to talk about, which is our enumerated rights. What those are, and how Justice Alito applies that thinking to this opinion.

French: So a lot of controversy has ensued over the course of American history over what are the rights that you possess that aren’t specifically listed in the Constitution, because we know there are some. Because the Constitution says there are some. Which ones are they? And that’s where you get this idea of what’s called substantive due process, which sort of the 14th Amendment is used as a hook. And this is the doctrine that’s, for example, ended bans on interracial marriage. This is the doctrine that allows parents to control the education of their child to certain degrees. This is a doctrine that has ended bans on sodomy, for example, or, you know, constitutionalized, gay marriage. And that’s where the abortion right comes from in Roe. So that’s why when people look at this decision and say, “Wait a minute; if you’re going to overrule Roe, what does this mean for all of the other cases that have been decided under this same 14th Amendment framework?” And that’s why a lot of people have then asked me, “What does this mean for gay marriage?” And there’ve been a lot of thoughtful people who have written and asked about that.

Ebeid: Yeah. What does it mean for gay marriage?

French: Yeah. So the interesting thing is Alito, in his opinion, very clearly distinguishes his ruling from many of those other rulings. So what he says is this whole notion of substantive due process is controversial. That’s a word that he uses. But twice he says that there is a sharp distinction between the abortion cases and these other cases, like interracial marriage or sodomy or same-sex marriage. And what’s the sharp distinction? The sharp distinction is that abortion ends what Roe and Casey call “a potential life” and what the state of Mississippi calls a, you know, “unborn child,” and that these other cases don’t have that same impact on other people. So, for example, same-sex marriage is consenting adults. You know that Lawrence v. Texas involves sexual intimacy among consenting adults. Interracial marriage: consenting adults. Contraception, you know: consenting adults. And so what he does is, he says Roe is just different.

Ebeid: Well, wait, is it? I mean, is his placing that language in the opinion enough for this to not open the door?

French: Yes and no. Okay. So here’s the argument for yes, and I’ll tell you the argument for no.

Ebeid: Okay.

French: The argument for yes is by placing this in the opinion, he’s creating precedent signed on to by a majority of the Supreme Court that says abortion’s just different. So this case itself would, in one way, be read as solidifying Obergefell, Loving, Griswold, but eliminating Roe. Obergefell is the Supreme Court case that recognized the right of same-sex marriage in the Constitution. So because the majority of the Court, if this is the majority opinion, says there’s a sharp distinction between these things, then you’ve got court precedent that says there’s a sharp distinction between these things. Which means if you’re going to try to say that the Dobbs case is like Obergefell, the Dobbs case says it’s not. So here’s the yes. That the case that Dobbs does not disrupt gay marriage is “Just read Dobbs. It’s saying abortion is different.” The immediate next response to that is, “Well, David, you say ‘Read Dobbs. It’s precedent.’ But doesn’t Dobbs basically say ‘Precedents can be overturned’?” Fair enough. Fair enough.

Ebeid: Do you think that the overturning of Roe is inevitable?

French: I will say it is more likely than it has ever been, obviously, because this draft opinion exists. We don’t know. It’s more likely than it’s ever been. But if it doesn’t happen now, I’m not sure it will happen.

Ebeid: This is the moment.

French: If it’s going to happen, I think now is when it will happen. There have been a lot of highly unusual events, both engineered by politicians and the happenstance of the way of Supreme Court openings that have created a world in which a vast majority of the Court, or the overwhelming majority of the Court, has been nominated and confirmed by Republican presidents—in spite of the fact that Republican presidents have not won the majority of the elections in the last generation. And so that’s all very unusual, and some of it’s been artificially created, for example, by the McConnell-led Senate at the very last year of Obama’s second term. But over the course of time, who sits on the Court more broadly reflects who wins presidential elections. And we’re at this really unusual moment where a one-term president had three nominations. Right. And we’ve had two-term presidents, multiple two-term presidents, who didn’t have that many nominations.

Ebeid: I hope these conversations with Molly, Mary, and David have offered a nuanced understanding of Justice Alito’s writings on Roe v. Wade and helped to illuminate various perspectives on a law that may be the lightning-rod issue in America. For me, these conversations leave me thinking about what our state differences may look like in the coming years, and wondering where and how Americans will find common ground. There have always been cultural differences among us state to state, city to city, neighbor to neighbor. But when our differences start to become codified in law, the lines that divide us feel more hardened.
Politics | The Atlantic

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