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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. First of all, Happy Mother's Day weekend to all you moms out there. Happy Mother's Day to my mom. Hi, Ma. Happy Mother's Day to anyone who is a mother already or is pregnant right now and embarking on that journey. May you all give and receive much love on this weekend's occasion. I'll bet for many of you, hearing that simple wish for Happy Mother's Day just now, usually, not a new story, has already triggered an uneasy feeling, knowing the bombshell for anyone who is pregnant that leaked from the Supreme Court on Mother's Day week of all times.

Forced motherhood has already been on the rise in this country in states like Texas and Mississippi. If anything like that draft becomes final, well, how weird is it to go into Mother's Day weekend with the Supreme Court in 22 states apparently ready for a new era of mass forced motherhood in this country, at least forced pregnancy and childbirth. Talk about American exceptionalism, the news from other countries, Ireland, Mexico, others, is more liberal abortion laws and court rulings taking hold in recent years. The United States is exceptional in the direction that we're heading in right now.

Let's talk to the person in the center of this constitutional storm to see if there is anything left to do between the draft decision that was leaked and the final version expected next month. With us now is Nancy Northup. As president and CEO of the Center for Reproductive Rights, she heads the group that argued at the Supreme Court in December for the Jackson Women's Health Organization in Jackson, Mississippi, the clinic at the heart of this case.

By the way, for extra context, restrictions already in place in Mississippi had already made it the only clinic providing inpatient abortions in the entire state. Now, it too may be forced to close. Nancy, you were good enough to come on and talk to our listeners at the busy time just as the case was being argued. Thanks for giving us some time again at this time when you're at the center of things once again. Welcome back to WNYC.

Nancy Northup: Thank you, and good morning.

Brian: Everyone is saying this is a draft written in February, not a final ruling. There's a process of dialogue among the justices that this draft is part of. It's not an end product. With your experience with Supreme Court cases, you've been head of the Center for Reproductive Rights for almost 20 years, I see. How much do you think this is still a work in progress?

Nancy: Well, I would assume that it is still a work in progress. Supreme Court opinions go through many drafts. As we know, there are times when votes change. Most relevant to this case is the 1992 case of Planned Parenthood v. Casey, in which the court reexamined Roe v. Wade and robustly upheld Roe v. Wade 30 years ago. In that case, Justice Kennedy did change his opinion.

That made all the difference for Roe v. Wade being affirmed and having the last 30 years of protection. I would assume that the draft opinions are going back and forth. Nevertheless, to see this leaked draft opinion was an absolute stunner. Even as the Center for Reproductive Rights has been litigating scores and scores of cases for years, we've been preparing this for years, just the sure, utter rejection of Roe v. Wade in this draft leaked opinion was stunning.

Brian: Can you tell us the Anthony Kennedy story, the Justice Kennedy story from 1992? Was he ready to overturn Roe at that time and then change his mind between a draft and a final ruling?

Nancy: Yes. As the papers that later came out show that Justice Kennedy did shift and became part of the plurality opinion that upheld the core holding in Roe v. Wade, which is that prior to fetal viability, which is around 23, 24 weeks, prior to that, the government cannot ultimately ever take the decision away to end the pregnancy.

He signed on to that and was joined by Justices Souter and Justice O'Connor. Then they were justices on more liberal and more conservative wings, but that became the core plurality, meaning not five votes but the votes that are in the middle that carry the day holding in Planned Parenthood v. Casey. The justice was looking at drafts, engaging with each other is real. As I said, not unless you're very concerned.

Brian: Obviously. How much is known about what flipped him? I'm just curious about some details of that if they are known to you and whether they could potentially serve as a glimmer of hope for what might happen here.

Nancy: Well, I think Justice O'Connor was pushing an alternative standard that did become the standard in that case, which was rather than have the highest protections, which is strict scrutiny under constitutional law, they move to a softer protection, which was called the undue burden standard that was advanced by Justice O'Connor. I think having that softened standard was more acceptable to Justice Kennedy.

Brian: There are many theories about who leaked this this week and with what intent to influence the final ruling in what way. Do you have any such knowledge or any such theory?

Nancy: No, and really don't want to be focusing on speculation about that. Because I think what's important for the public to be focusing on is the fact that whether it ends up being this very radical opinion or whether it ends up being an opinion that nevertheless is upholding the 15-week ban in Mississippi, the focus needs to be on how we're going to protect access to abortion care throughout the country.

Brian: Right, but regardless of what the intent was, do you think the effect is something in particular now that it's out? Do you have a sense that behind those closed doors, the public reaction to this draft, however they perceive it, is pushing the final decision one way or another or can?

Nancy: Well, I certainly think it highlights to the court, the tremendous opposition to a decision like this. We saw people take to the streets, the day after the draft opinion came down. There's going to be rallies across the nation on May the 4th. I think they're seeing the reality that 70% of the American public does not want to see Roe v. Wade overturned. I think that is a serious context in which the justices will be considering this.

Brian: You just laid out that you would still be devastated, you didn't use that word, but I think that's where you're going if Roe is not overturned. The Mississippi law banning abortion after 15 weeks is simply upheld as not an undue burden within the context of Roe. The stats I've seen are that 90% of abortions take place in the first trimester. That would be the first 13 weeks. The Roe standard as you said is fetal viability, 23, 24 weeks, so it's those 8, 9 weeks that were officially at issue in this case. How bad would that be, considering when the vast majority of abortions take place?

Nancy: Obviously, preferable to overturning Roe v. Wade altogether. There would be obviously an effort for people to be able to get care. People would be able to get later abortion care in other states, but the concern is you can't actually uphold the 15-week ban without, as we've been discussing, overturning Roe v. Wade. Even with Roe v. Wade in place, we have already been seeing things like the Texas-style law, which has been in effect since last September, which bans abortion at six weeks and enforces it through a private vigilante scheme, meaning private citizens can sue people who provide abortions or aid and abet abortions, get $10,000 bounties.

The Supreme Court failed to step in to address that. We see states already. Oklahoma passed a blanket ban on abortion. We've gone to court to block that. All of this is happening even with Roe v. Wade being the law of the land. For the Supreme Court to, in essence, overturn it by taking away the viability line, it's going to continue to be the floodgates and the flood just coming and coming in these states. It would still be cause for concern if the Supreme Court does something short of announcing a reversal of Roe v. Wade but still allows this crumbling of protections.

Brian: Is there anything your organization can do as the plaintiff's lawyer in this case at this point? You're a party to the case that is still in the process of being deliberated as we discussed and with potential reasoning for a ruling out there in public now. You can do media appearances like this. Anything else? Anything more formal in the context of the court?

Nancy: Well, we made our arguments obviously to the court in December. We filed our briefs at the end of last year in the case. That is where it stands for us as lawyers with respect to the court. We've made our arguments. Court is under its deliberations and that's where it stands.

Brian: Now, listeners, we can take some phone calls for Nancy Northup, president and CEO of the Center for Constitutional Rights, the group that represented and represents the Jackson, Mississippi women's health organization at the Supreme Court in that case that now seems to be getting used to overturn Roe v. Wade. Who has a legal question or a court question especially? Anything else relevant is okay too. 212-433-WNYC, 212-433-9692, or you can tweet your question @BrianLehrer.

Getting to something that I think is essential here, Nancy, we've been talking on the station and others have too, of course, about the disparate impact the state abortion restrictions and the total or near-total bans to come in many states if the ruling comes down like the draft. Some stats from NPR's Morning Edition today. Listeners, maybe you were listening earlier, but if not, listen to these.

One in four people who are pregnant in the US get an abortion at some time in their lives. They are mostly in their 20s. Black and Latino women make up more than half of those who receive abortions, even though they're a minority of the population. Poor women access abortion services disproportionately. Nancy, to what extent do you think this is a poverty and inequality issue, not just a question of women's rights, pregnant people's rights in the abstract?

Nancy: Oh, it absolutely is and that was clear in this case. One of the things that the district court in this case made clear when it struck down the 15-week ban, it could have issued a three-line decision saying this is against Roe v. Wade, it's unconstitutional. Instead, the judge in the case in Mississippi went through how this is an issue of both racial justice and gender justice.

It talked about how this 15-week ban and this restriction on abortion is more like the old Mississippi bent on oppressing women and racial minorities. It went through the history of forced sterilization of Black women in Mississippi. It also pointed out that Mississippi is at the bottom of statistics across the nation in terms of maternal and child health and that any pretense of addressing that.

What we know is that the most harm will be communities who already faced the greatest economic and systemic barriers to health care. That is people struggling to make ends meet, it's communities of color, it's young people, it's LGBTQ people, it's immigrants and those in rural areas. The harm will fall disproportionately and that is of enormous concern. Yes, this is an issue of economic justice, racial justice, and gender justice.

Brian: We've said it and we've heard it a million times. If you've got enough money, which means disproportionately white people who are pregnant in America, you will find your abortion pill or your emergency abortion travel plan in a post-Roe world much more often than women who are lower income. Is there any legal argument that could be made along those lines? Any Fourteenth Amendment Equal Protection Clause by race or income or anything like that, or if the Supreme Court of the United States completely overturned Roe, are you locked out of court?

Nancy: Well, we will not be locked out of court. This is still the United States of America. I think the issues that you raise around this being both an issue of gender equality and racial justice are issues that we will be raising in future cases to the court because that is the reality. On the issue of the Supreme Court itself, in the Planned Parenthood v. Casey case, recognized that the ability to control reproduction plays a critical role in the ability of women to fully participate in the economic and social life of the nation.

One of the briefs in this case was from leading economists, chaired professors at Harvard and Columbia and MIT. They went through the data that has been developed by economists since Roe that shows that Roe changed the arcs of women's lives for the better. In particular, it increased educational levels, job opportunities. The notion that this is an equality issue, as well as a personal liberty issue, has been in the jurisprudence. Since the Planned Parenthood v. Casey case, it's confirmed in the economic research and we will continue to be pressing that issue.

Brian: Lizbeth in Montclair, you're on WNYC with Nancy Northup from the Center for Reproductive Rights. Hi, Lizbeth.

Lizbeth: Hi, there. So nice to talk to you. Thank you for taking my call. I was just wondering if your guest knows the internal process of the justices right now. Is there a lot of maybe heated arguments going on between the two sides and what might that look like?

Nancy: Of course, I am not privy in any way to what the justices are talking to each other about or the opinions that they will be circulating. What I would highlight, though, is some of the statements that were made at oral argument on December the 1st. I think about the statement that Justice Sotomayor made at oral argument when she said, "When does the life of a woman enter the calculus?" She was responding to the argument of the state of Mississippi that we should just return this to the people of each state to decide for themselves.

That, of course, in the leaked draft opinion, talks about just returning this to the states. That was such a powerful moment when Justice Sotomayor said that, "When does the life of the woman enter the calculus?" She also went on to talk about when do women who are poor, when do women who are at risk of childbirth, which is a medical risk 14 times higher than abortion. When does that come into the calculus? I would assume that those questions being asked at oral argument by Justice Sotomayor and other concerns raised are obviously part of the debate as they have their deliberations.

Brian: As they have their deliberations, what role do you think public outcry might play? We know the country is divided along various lines about abortion rights in America. We know the polls show Roe is overwhelmingly popular and the overall population in this country, so public opinion is fairly well-established. You mentioned before demonstrations that would be coming up. By the way, a listener says, they think you said May 4th while you may have meant May 14th. May the 14th be with you. Is there a concentrated day of demonstrations coming up and what effect do you think it could have on the justices of the Supreme Court?

Nancy: Yes, it is May 14th. If I misspoke earlier, I'm very grateful for that correction. It is a week from tomorrow, a week from Saturday. There are going to be protests across the country and people can go to the Liberate Abortion website. Certainly, there's going to be protests here in New York City. You can go to that Liberate Abortion website, liberateabortion.org.

It's a group of 150 organizations across the country. You can learn about the protests that will be happening in New York. You can let your friends know across the country that they can go to that website and find out there. Look, I think it is really important in the context of the Supreme Court deciding an issue to see the public support for the constitutional right to abortion.

One of the things, again, it is in the Planned Parenthood v. Casey decision from 30 years ago. It was in the discussion at the Supreme Court in the abortion cases argued. Texas and Mississippi were argued this year. That is that the Constitution has to be a constitution for all of us. That was one of the things that was so clear in the Casey case that, yes, people, it's obvious. You look around the nation. People do have strong feelings.

People of good faith, as they said in the Supreme Court, do and perhaps always will disagree about the issue of abortion, but this is a constitution for all and it must define liberty for all. That's what the Supreme Court said 30 years ago. That's what they should recognize now. I do think that people going out and showing their support shows that they want this constitution to be for all.

Brian: Sarah in Manhattan, you're on WNYC with Nancy Northup. Hi, Sarah.

Sarah: Hi, thank you very much for taking my call. I'd like to ask this. I have begun to read the opinion. I just don't have the stomach to read the entire thing at this point, but I'm struck by the first paragraph of Alito's draft opinion, which says that there is no explicit right to an abortion in the Constitution. Well, we all know that. There is no explicit right, but it derives from the right to privacy. My question is, is there anywhere in the draft opinion that discusses the right to privacy and somehow draws a distinction within the right to privacy to the right to an abortion?

Nancy: In the leaked draft opinion, it says flat out, there is no right to abortion in the personal liberty guarantees of the Fourteenth Amendment. The Fourteenth Amendment speaks about our guarantees to liberty. Over the last 100 years, the Supreme Court has recognized that in the realm of family and childbearing, marriage, in this realm, there is a protection for personal liberty that the government cannot enter.

50 years before Roe, this doctrine was being developed in cases that were coming up about the education of children and parents being able to decide that they would teach their children a foreign language against state laws that prohibited it, that they would send their children to private schools should they choose against a state law that prohibited it, then we had the contraception cases. Of course, the case of interracial marriage.

We then had the Roe v. Wade case. Now, 50 years after, we had cases involving the right to same-sex relationships and banning states from criminalizing that and the right to same-sex marriages. All of this is in the realm of personal liberty that the government may not enter. The draft leaked opinion rejects that abortion belongs in that universe, but it does. Again, well-grounded 50 years before, well-grounded 50 years after.

Brian: I want to follow up on that after a break that we need to take because Justice Alito, as you referenced, does say explicitly in this draft opinion that this does not relate to any of those other privacy-related rights, which, perhaps if it's in the final draft, sets a precedent to preserve same-sex marriage and Griswold on contraception and some other things.

I want to get your take on Alito's take specifically on that because he seems to have anticipated this argument and seems to be on some level, at least on paper, trying to protect those other decisions. I want to get your take on that. When we come back, we'll take more phone calls as well for Nancy Northup, CEO and president of the Center for Constitutional Rights, the plaintiff's attorney organization representing the Mississippi abortion clinic at issue in the Supreme Court case. Stay with us.

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Brian: Brian Lehrer on WNYC with Nancy Northup, president, and CEO of the Center for Reproductive Rights, representing the plaintiff in the Mississippi abortion rights case that the Supreme Court leaked draft is about. What you were bringing up before the break, undoing Roe in the way that the Alito draft would do threatens other Supreme Court precedents that were also based on privacy rights.

Again, to take these off, same-sex marriage in the Obergefell decision, the right to obtain contraception in the Griswold v. Connecticut case. That was the immediate precedent for Roe. The right to interracial marriage, which was Loving v. Virginia. That case, it took to establish those rights. That was a unanimous ruling in 1967, I believe, based on the same Fourteenth Amendment due process and equal protection clauses of the Fourteenth Amendment as Roe.

As you know, Nancy, the Alito draft says explicitly that Roe is different from any one of those because it involves not just the individuals making their personal decisions in their private lives, but what he calls the unborn human being whose rights conflict with those of the person who's pregnant. Has Alito, by his own words, nullified any future attempt to overturn any of those other cases?

Nancy: Were this to be a final opinion, you can't take out of the jurisprudence and say, "Just because I am declaring, it has no effect on other decisions." That doesn't make it so. That's not the way that jurisprudence works. It's not the way law development works. If you look at the Lawrence v. Texas case, it stands firmly on Planned Parenthood v. Casey. Lawrence v. Texas was the case that struck down Texas's criminalization of same-sex relationships. You can declare it.

It would be what we call in the law, "dicta," meaning it's stuff the court talks about that's not central to the decision and, therefore, has no precedential value. The reality is that abortion has been considered as part of this fabric of personal liberties. It was very clear in the Casey decision. It's been clear in the decisions that have relied on it since. Merely trying to state we're going to pull out this thread from that fabric and it's going to have no impact on the unraveling of the rest of the fabric, it's just not how the way jurisprudence, meaning law development, by decision works.

Brian: Alito did not vote with the majority in Obergefell, did he? In other words, he did not vote for the constitutional right to same-sex marriage?

Nancy: Correct.

Brian: That seems weirdly hypocritical, saying that wouldn't fall under the same rubric as how we're overturning Roe. You shouldn't be worried about same-sex marriage rights because of this, and yet he found a rationale to vote against that anyway. Do you know what his rationale was in that case?

Nancy: It wasn't a case in which I focused a lot on the dissents because I was so thrilled with the majority opinion, which was strong and robust in recognizing the rights to same-sex relationships and ending a long history of criminalization. The other thing that I really think it's important for listeners to understand is that the Supreme Court has never before taken away personal liberty that has been recognized by it in the Constitution.

It reverses decisions, but it reverses decisions like in the Lawrence v. Texas case, the case recognizing you can't criminalize same-sex relationships. It was overturning a case from 1986, Bowers v. Hardwick, that said that you could, but it was overturning it towards a more liberal understanding of the protections of personal liberty. It's never taken personal liberty right away and that just should be shocking to any right that we hold dear. That is an earthquake in saying that these protected rights may not stand.

Brian: Scott in SoHo, you're on WNYC. Hi, Scott.

Scott: Yes, hey, how are you? Thanks for taking my call. I just wanted to say I'm a man, I guess. I don't know. That is what I think. I changed my mind on abortion when my niece was born premature. I spent a bunch of days in the NICU in New York City, where these nurses took care of these babies that were born a couple of months early. It literally did, I have to say.

When you push the envelope and say you can have abortion anytime, it's your right to choose, I felt the same way. Then I went there and saw my niece in the incubator like a three-pound baby. Not even that actually. I think she was a pound and a quarter. She's nine years old now and amazing. I'm just curious what your guest, when does she consider it? I don't know. When do you put the stop time morally?

If you go all the way to birth or the day before birth and you're saying, "That's great. It's my right to choose," because it's going to put a strain or hold up a career, then the next step is, why not get rid of your two-year-old? There are a lot of work and we all make choices. Sometimes we have to pay consequences for them. I'm not talking about people getting raped. I'm talking about the vast majority do that.

I'm just curious what your guest thinks because [sound cut] that I know went and spent time in the NICU and talked to the nurses that do amazing work and the doctors and see the moms that are in there that are stressing. I don't think we'd have this massive disagreement. You can't hate somebody for wanting to save what they think is a child and some people think it's just a bunch of cells. There's got to be a better way. I would think, why not try and make people take a lot more birth control. That's a better thing so they don't have to go through it. I'm just curious.

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Brian: I'll get Nancy's answer to your question in a second. Since you're emphasizing the premature births, which are still pretty much along the way in pregnancy, would you, through your lens, endorse a woman's right to choose up through some early point in pregnancy?

Scott: Yes. Before, I was saying, "Absolutely." Actually, I still am. I think that there is a time, but we don't know what that time is and I was at the [unintelligible 00:30:14]. At the point before I met my niece in the NICU, I would've said, "Oh, it's totally okay," but what I'm saying is it's glossed over. We change the word. We use semantics, change the word so it's not sounding like the horrible thing that it is. I know it's like, "Oh, it's called my right to choose." Actually, the act is horrible and everybody's happy to have it.

Brian: Scott, thank you. Let me get you an answer. Nancy, well, first of all, I'm sure you find it enraging that he would say it's like killing a two-year-old, but this is the argument that has prevailed at the Supreme Court, right? In Justice Alito's decision, he refers to the unborn human life and that's the basis of his argument. That's the basis of the other side's argument that this rests on. What do you say to Scott? What do you say to all of them?

Nancy: I appreciate Scott sharing his personal experience. I too have loved ones who have had premature births and have gone through the experience that Scott's family did. I think the important thing is, is that every single pregnancy is different. Every single person's circumstances are unique. As you said, I had been leading the Center for Reproductive Rights for almost 20 years.

During that time, people share their stories with me about their decisions to end pregnancies at different points in their pregnancies. Every single one is poignant and personal. The person that's in the best position to make the decision is the person who's pregnant. That has been my conclusion from my experience with so many people over so many years and their stories.

It is the experience of our dedicated providers around the country and their experience with their patients that, ultimately, on this issue, it is the person who's pregnant who is in the best position to be able to make that decision. You always have to have protection for the life and the health of the pregnant person. That's what the Supreme Court said in Roe and in Casey.

It did draw the line at fetal viability. It said even afterwards, the health and life of the woman is important and must be an exception. We can leave these decisions to people. We really can. That's what we think about in a free society that the highly-personal decisions about when and whether to have children, whether to go forward with a pregnancy, all of those are decisions that are left with the individual to make.

Brian: How, if at all, did you address the rights of what Alito calls the unborn human being in your argument? Did you argue the fetus has no rights or any rights under the law or isn't a person yet but a potential person, or did you need to address fetal rights explicitly to argue the case?

Nancy: Well, the constitutional law has been clear that constitutional guarantees attach after birth. That question about whether the fetus has constitutional rights was not in play in the case. We talked about it in terms of the standard that was set in the Roe case and the Casey case, which is that standard recognized that there is an interest by the government in developing embryonic and fetal life. It recognized that as an interest in the government.

Ultimately, in the decision, it said that pre-viability, that interest of the government can be addressed in certain ways. The court in Casey would disagree with this but said that you can have counseling of the woman and make her wait 24 hours to come back and have the abortion. We addressed it as the constitutional law does, recognizing that there is an interest in the government in embryonic and fetal life, and also recognizing that, ultimately, the decision has to be left to the woman prior to fetal liability. That's how it came up in the case.

Brian: On those grounds, what about religious liberty arguments? Since the essential question of when personhood begins as a theocratic one really that our major religions disagree on and conservative justices embrace religious liberty as a core constitutional value, banning abortion really imposes conservative Christian dogma on everyone else. Is there a constitutional argument around that?

Nancy: Well, the Supreme Court has never addressed the question about whether access to abortion could be an issue of the religious liberty in the Constitution. I think the way you phrase it is correct. People fundamentally disagree from a religious perspective about the morality of abortion just as people fundamentally disagree about religion itself, right? We have a variety of religious beliefs in this country and to impose one set of religious beliefs onto the majority of the population. Again, I said it was 70% who don't agree with that religious belief is an affront to religious liberty. I think where the court to go in the direction of the draft opinion, you're going to see those arguments being made going forward.

Brian: I know we're over time. I want to ask you one more thing and that is about the international context of this because I see the Center for Reproductive Rights works in other countries too. I know Mexico's Supreme Court recently voted to decriminalize abortion. Is the US bucking a global trend toward liberalization or is it not that simple?

Nancy: It is that simple. The US is absolutely bucking a global trend. The backsliding of abortion rights in the US flies in the face of the global trend in liberalizing abortion laws. Over 50 countries have liberalized their abortion laws in the last 30 years. You've mentioned the Supreme Court decision just in the last year from the Supreme Court of Mexico. We saw a really strong decision from the Constitutional Court of Colombia in the last year in which they said abortion has to be taken out of the criminal code prior to 24 weeks.

We saw the legislature of Argentina liberalize their abortion law. We saw the historic vote in Ireland several years ago in which they took out the ban on abortion by a huge percentage from the Irish constitution. In all of these cases, whether they're cases or legislatures or votes by the citizens, they're looking at the same factors we've talked about.

Obviously, the development of embryonic and fetal life and also the ability of the pregnant person, of women to be able to make these decisions for themselves and the bodily autonomy, and how the ability to make decisions about your reproduction or continuing of pregnancy are essentials for equality, to liberty, to dignity, to religious freedom, all of these basic core rights. We are backsliding. The rest of the world is moving forward and that is of great, great concern.

Brian: Not what people usually have in mind when they say American exceptionalism, but there it is. Nancy Northup, president and CEO of the Center for Reproductive Rights. Thank you so much for joining us. Keep coming on with us, please.

Nancy: Thank you.

 

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