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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Justice Alito's Roe v. Wade reversal draft was the subject of the Saturday Night Live opening this weekend, did you see it, set in the 13th century, which is when at least one of Justice Alito's precedent seems to come from, apparently? Then in the skit, a woman questions the men considering a 13th-century abortion ban, like this.

Speaker 2: I just don't understand why you're so obsessed with this issue. What about the fact that no one can read or write and everyone's dying to plague?

Speaker 3: Oh, you think just because I have active plague that means I need to wear a mask? It's my body my choice.

[laughter]

Brian: Interesting premise bodily autonomy on which to reject mask requirements that were designed to protect life, but ban abortion makes perfect consistent sense. With us now, Emily Bazelon, staff writer for The New York Times Magazine, who has an essay in The Times called, Beware the Feminism of Justice Alito. Emily is also co-host of Slate's Political Gabfest Podcast, Truman Capote, fellow for creative writing and law at Yale Law School, and author of the book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Emily, always good to have you even under these circumstances. Welcome back to WNYC.

Emily Bazelon: Thank you, Brian.

Brian: Wait, did you use the words Alito and feminism in the same headline there? Is there a feminism of Justice Alito for you to swing at?

Emily: Yes. I think that there is. It's, in my view, a distorted version of feminism. One of the things happening in Justice Alito's opinion is the idea that if you consider changes in society that have taken place since the Constitution was written, you might think for a moment about the ways in which abortion affect women's lives.

Then what Alito basically says is that because feminism has succeeded in making many gains since Roe was decided in the 1970s, that those are actually reasons to toss out Roe. It's as if he's using feminism against itself to argue that essentially, women don't really need this protection anymore.

Brian: You remind us that the Casey decision that upheld Roe in 1992 gave us one rationale to make it easier for women to participate equally in the economic and social life of the nation. Does the Constitution guarantee that in some way, that it should be in that decision because I guess Alito thinks it does not as your article points out?

Emily: Right. Roe itself just to go backwards a little bit, mostly talked about a right to privacy, it did not talk about women's equality. However, the right to privacy in Roe is rooted in the liberty interest in the 14th amendment in the Constitution. The court said that in Roe. Then in 1992, in Casey, a new majority of justices, as you said, starts talking about the liberty interest in terms of women's ability to equally participate in the political and social life of the country.

Effectively, Justice Alito was just dismissing all of that, and he does it in this kind of a way that, to me, seemed like a sleight of hand, where he says, "Well, now women have legal protections against discrimination on the basis of pregnancy, and they actually vote at higher rates than men. Because of these gains of feminism, they don't need to have a constitutional right to abortion anymore." He really ends his opinion on this notion of, "These are just mere policy arguments about what benefits women." Then he says, "Well, women have political power now and so they can just duke it out at the ballot box."

Brian: Why would you argue against that, if he's making the point, and it is accurate that women vote at higher rates than men? If women in Texas and Mississippi want to have abortion rights, they would have some meaningful power to do that presumably under the state's legislative election laws?

Emily: Right. At the root here, this is a discussion about whether there is a constitutional right to access abortion that is beyond the reach of the voters. This is something that's fundamental to women's freedom. The Supreme Court has found it to be part of the Constitution. This isn't up for grabs politically anymore. That's what Roe has meant for the country for the last almost 50 years. Justice Alito is returning this issue to the states, which means returning it to the voters. You can make an argument that that could be a healthy thing for democracy, and even for abortion rights.

You can argue that if people have the chance to really think about this and vote on these issues, and if this is important to them, then abortion will be protected through state statutes. The problem, of course, is that if we go state by state, we know from the polls and from the reactions to Alito's opinion from lots of state legislatures, that there are plenty of states in which abortion is not necessarily going to be protected. They're going to be women in those states that don't have the constitutional protection they had before. If you're an abortion-rights supporter, this idea of giving it over to the voters has some problems.

Brian: Listeners, we can take your phone calls for Emily Bazelon, New York Times Magazine writer. Maybe you saw her essay over the weekend this week or the other day, actually, I guess it was just before the weekend, Beware the Feminism of Justice Alito. 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. This satirical clip we played from Saturday Night Live, it makes the point that the same people opposing mask mandates to protect the lives of born people on the basis of personal autonomy over your body would outlaw abortion to protect the lives of the unborn. What have the courts weighed in on that contradiction?

Emily: The courts have weighed in on the idea that there's this balancing test before, this idea that there are interests of the mother and then interest of the unborn child. First of all, the idea of calling the fetus an unborn child is something that isn't itself loaded. It's in the Mississippi law, but it's not necessarily the way that pro-choice advocates would talk about this. This whole question of a balancing test, and whether that is the way to go about thinking about abortion rights, how far into a pregnancy that carries, that's something that is going to be very much up for grabs.

Brian: A Washington Post article today says Chief Justice Roberts may still be trying to put together a majority on the court that would uphold Mississippi's 15-week limit on abortion, that's the case at issue, as a reasonable limit that doesn't present an undue burden under Roe, the phrase undue burden was in the Casey the decision, but otherwise keep abortion rights intact as a basic constitutional right. They would throw out Roe's premise that viability of the fetus to live independently outside of a womb occurs 23, 24 weeks.

They would uphold this 15-week limit on abortion in this scenario but keep Roe as a basic constitutional right to privacy for most abortions. Do you think Congress should consider longer-term-- Well, first of all, do you think that's at all realistic to think that the court might wind up there?

Emily: It is possible. This draft opinion is just a piece of paper and the court can do whatever it wants with this case until the decision is final. I think that the fact that this opinion has leaked might make it harder for one of the justices in the conservative majority to switch his or her position because now everyone will know who that person was, and it will look as if they lost their nerve. I'm not sure how realistic that is. I do assume that since this draft is from February changes have been made since then, but there was also reporting in the Washington Post that this five-justice conservative majority for overturning Roe was still holding firm.

Brian: I guess that goes to the question, which is just speculation, so we shouldn't dwell on it for very long, but of who leaked this, and for what purpose? If the easy assumption is that somebody on the pro-choice side leaked it so that the public would start feeling outraged that the court might do this and then they would dial it back, well, you're saying just as easily somebody on the real hardcore anti-abortion side could have leaked this, so that the justices who had signed on to this draft opinion wouldn't be embarrassed by getting cold feet and running away from it.

Emily: In some ways, it seems like the incentive to leak the opinion might be greater if you're on the right and you're trying to freeze this majority in place. All over the political spectrum, people are accusing the other side of the leak because there's motivated reasoning here, where if you think the leak is bad because it does clearly damage the Supreme Court as an institution, then you want to accuse your opponents of being the leaker.

Brian: Craig in Westchester, you're on WNYC with Emily Bazelon. Hi, Craig.

Craig: Hi. Thank you, Brian. I want to point out that being against abortion is a religious belief. We don't live in a theocracy. We live in a democracy. By that basis alone, we can't make abortion illegal. We're not a theocracy. That's not the law of the land. Also, we could say in addition to that, making abortion would be against the will of the people because more people in the United States don't have that religious belief. I just wanted to share that and get your feedback. Thank you.

Brian: Craig, thank you. Some listeners know, Emily, that I've asked this same question, a version of it until I'm blue in the face. Maybe I've asked you before. Why doesn't the religious liberty clause of the First Amendment protect abortion rights? Because in order to ban abortion rights, you have to take a religious position that the unborn fetus is a person that has rights. It is essentially a religious campaign from some religions and not others. As the caller says, a majority of people even who consider themselves religious in this country, do not hold that view. Why isn't this seen as an attempt to impose one religious view on everybody else?

Emily: I get it. I also get this question all the time. Here's one way of thinking about it. It is true that there are lots of people who have religious problems with abortion. They have deeply held convictions that abortion is wrong because that's what the Bible teaches. There are also people who oppose abortion on moral grounds that are purely secular. When you look at the Supreme Court justices, it is also true that the people who are likely to strike down Roe versus Wade are religious, and some of them probably have religious beliefs. In fact, we know they have religious beliefs that oppose abortion, but we don't know to a certainty that those religious beliefs are why they are making this decision.

For many years, I think for good reason, we've been reluctant to say, "Because you are Catholic, or because you're Jewish, you must think X that affects your rulings on the bench in this particular way." There's something also I think troubling about those kinds of assumptions. That means that this question of religious liberty in the courts has been separate from the question of whether abortion is a constitutional right or not. I know that that may be unsatisfying to a lot of listeners. I get it. I think there's also a reason that we've put up a barrier there and the assumptions we make about how the justices are thinking.

Brian: This isn't about the justices' religion, I think when people bring this up and whether the justices are really trying to impose their religious beliefs on the country. It's about those who are involved in the anti-abortion movement doing it explicitly in the name of God [clears throat] as they portray it. Is that wrong, or could that be used in court if it comes back in some First Amendment context in the future?

Emily: Of course, you're that lots of people who oppose abortion do so because of religious beliefs and motivations. Evangelical and Catholic Church groups have really been very important to the movement. However, that's not the sole basis for people's objections. I think that because you can also have these separate secular and moral objections, it's not purely a question of religious liberty. Is someone going to sue that they have a free exercise right to an abortion as a matter of their religion? Yes, someone will bring that lawsuit because this just comes up all the time. Someone's going to test it.

The idea that you have an affirmative right to something as your freedom of religion, you'd have to show that your faith has that really strongly, and that you have a sincerely held belief that's the standard, that that's part of your religion. I just don't see how this Supreme Court is going to go for that argument.

Brian: Linda in Farmingdale, you're on WNYC with Emily Bazelon. Hi, Linda.

Linda: Hi, Brian. Thank you for taking my call. I was listening to Ms. Bazelon earlier on when she talked about Alito's argument that, "Women have come so far. They're making the money they need. Maybe we don't need that protection of an abortion bill." I wondered, isn't that similar to the argument they had when they gutted the voting rights bill? They said, "Oh, people have come so far. They don't need the protection." Now look at what's happening there. If women aren't given the protections, they're going to go back to what it was before. What's the point? I don't get the argument, is what I'm saying.

Brian: Thank you, Linda.

Linda: That's it.

Brian: What do you think about that comparison with the argument for gutting the voting rights act on the basis of there's been enough progress?

Emily: I think it's a very apt comparison. In fact, when you go back to that particular Supreme Court case that you are raising, Chief Justice John Roberts wrote the decision in that case. He said, "In the last 50 years, things have changed dramatically, i.e., we don't need the protection of the voting rights act anymore." Justice Ginsburg said, "When you're using an umbrella and it's preventing you from getting wet, you don't stop using the umbrella if it's still raining." I think that that is really the same issue here, especially because, and this was part of one of the briefs submitted to the Supreme Court, we know that there's a lot of evidence from social science that some of the gains women have made directly relate to being able to access abortion.

When you look at the rates of education and entering into professional careers from women who've had unplanned pregnancies, you see a real gain after legalization in Roe. That makes it particularly frustrating or poignant that Justice Alito is dismissing this rationale for continuing to protect the right to abortion.

Brian: People on Twitter are weighing in about this question of whether it's a religious issue. One person writes, "Is a scientific position, not a religious one that a fetus is alive and human. If not human, then what is it? If not alive, then you don't need to kill it. Murder should be legal too," according to the caller, "since we don't live in a theocracy." That's one point of view. Somebody else writes, "Being pro-life is not necessarily religious point of view.

There are plenty of people who are agnostic, who believe that life begins at conception. I am 100%t pro-choice," this listener writes, "but this is not only a religious point of view." Somebody else writes, "Please, tell Emily Bazelon that the Bible is full of feticide." Is that true? Are you enough of a biblical scholar and not just a legal scholar to know if that's true? I don't.

Emily: I'm trying to think of an example. For sure, I should know my Bible better. I think the points your listeners are making are important ones, that when you have a rationale for a belief like opposing abortion, that can mix religious and non-religious reasons that people hold for very different bases. Science, I don't think can really settle the mystery of when life begins, but people certainly have the idea that there is a life from the moment of conception. For all those reasons, I think it's really hard to say this is only a religious question.

Brian: Can I get your take on the slippery slope argument that Alito tried to dodge-- Or not dodge. He was arguing explicitly that there is no slippery slope if they do reverse Roe to taking away other things that are based on the right of privacy. He wrote that nothing else fits in that category because what he calls the unborn human life makes it about two people with opposing interests not just privacy between consenting adults, but he voted against the same-sex marriage ruling, which he says this would not apply to. Do you know how he manages to argue for privacy rights being more reasonable of an argument in that case, but still vote against them?

Emily: I think there is a difference here between a legal logic and a political reality. If you look at the reasoning in Alito's opinion and the way he overturns Roe, assuming that his opinion triumphs, then you see a basis for also overruling same-sex marriage, other protections that are rooted in this right of liberty and privacy in the 14th Amendment. The reason for that is he pays a lot of attention to what is, "deeply rooted in our nation's history and traditions."

Same-sex marriage is not deeply rooted in our nation's history and traditions, no more than abortion is, in fact, lots of things like saying that states can't punish people for sexual acts, or the right to birth control that's not deeply rooted in our nation's history either and that's where this kind of point of vulnerability is, and this fear of a slippery slope on the part of people who would like to continue upholding those decisions.

You can also argue that from a political point of view, those liberties are not as vulnerable as abortion because abortion has remained divisive since Roe, in a way that most of those things really are not anymore. Alito talks about that. He repeatedly talks about how divided the country is over abortion. That's not a legal rationale for upholding these other liberties, but it's a politically minded one.

Brian: When you bring up what is and what isn't in the deep historical traditions of this country or Alito brings it up. I mean, Roe has a 50 year precedent at this time, and you write about it being not just about the law in the abstract, but that real people have come to depend on the reliability of the law as it stands under Roe, can you explain that concept more and how it applies here?

Emily: Sure. Well, even still, there's this concept that's supposed to be really important to Supreme Court decision making, and it's called Stare Decisis and the idea is that you're supposed to let the decision stand, that the Supreme Court normally accords a lot of value to the laws stability. If it's going to go around changing the rules for how you incorporate or whether you have the freedom to travel among the states, that's going to really mess with people's lives and human experiences and the court should be very reluctant to do that. However, there have always been exceptions to this rule of Stare Decisis right and Alito brings up Plessy versus Ferguson, the reviled decision from late in the 19th century that upheld the color line with separate but equal.

I think almost all Americans, I hope, think that it was really important that in Brown versus Board of Education in the 1950s, the Supreme Court did not stick with Stare Decisis and overturned Plessy and it's really terrible ideas. This is the catch-22, that the Supreme Court is supposed to usually abide by its past decision, but we don't want it always to do that and the justices get to make up when they think it's time to make a change and when they don't.

Brian: By the way, did he really cite 13th-century law in his draft, or was the Saturday Night Live skit that we sampled from just playing?

Emily: Oh, yes, he really did. In fact, he cited Sir Matthew Hale, this is actually someone from the 17th century, he's the person who came up with the idea that husbands can't be prosecuted for raping their wives and he also sentenced women to death as witches. If you want to stick with old common law, British history from centuries ago, this is who you're going to wind up in company with.

Brian: He might actually get confirmed by the McConnell Senate-- I'm not going to make you answer that question. Before you go, though, there are some really daunting legal questions to come even after this decision if it comes down like the draft, like after a Texas woman comes to New York, for a legal abortion, let's say, could providers in New York state be sued under the Texas law that allows private lawsuits against abortion providers if they give a Texas resident abortion services? Are you bracing for anything like that on the interstate level that could diminish rights even in legal states?

Emily: We are going to face many questions that we have not thought about before, we are in such Uncharted legal territory? That is a good question. I think that states like New York could protect abortion providers from exactly those kinds of lawsuits in their states by passing countermeasures. My state of Connecticut just did that. They said if you get sued in Connecticut as an abortion provider, and you're following Connecticut laws, you can countersue to try to prevent someone from using that Texas law. Connecticut did something which I think is actually even more important, which is to provide legal protections for abortion providers who prescribe abortion pills across state lines.

Right now there are 19 conservative states that have bans on telemedicine or restrictions on telemedicine for the abortion pill and, when you think about just like, practically speaking, what's going to happen to all these people who are going to seek abortions, access to the pill is going to be super, super important. Right now, as far as I know, American doctors and nurse practitioners, and midwives are not prescribing across state lines when they would violate these telemedicine bans, but if liberal states provide legal protections for them to do so, that is really something-- it would raise all kinds of questions, it would be very unusual as a matter of American law to have states not cooperating with each other.

However, it could really address this question of access in the red states.

Brian: Well, last question. Can you think of any other case of an existing right being thrown out by the Supreme Court?

Emily: Not after 50 years like this. This kind of rollback is just I really think it looks seems unprecedented to me.

Brian: Unless you count or would it not be in the same category like the right to enslave people or the right to deny marriage licenses based on the sexual orientation of the [unintelligible 00:26:24] or the right to discriminate under Plessy as rights that went away?

Emily: I guess I don't think of those rights. I think of those as the state trying to impose its will on people who are trying to exercise their rights and those cases went in the opposite direction. They allowed people to have more freedom and this case is, if you see abortion as tied to women's liberty and equality then this case is going in the opposite direction.

Brian: Emily Bazelon, staff writer for the New York Times Magazine, who has an essay on the Times website now called Beware the Feminism of Justice Alito. Emily is also the co-host of Slates Political Gabfest Podcast, Truman Capote fellow for creative writing and the law at Yale Law School, and author of the book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Emily, as always, thank you so much.

Emily: Thanks so much for having me.

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