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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, again, everyone. We were preempted yesterday for the live broadcast of the Supreme Court hearing on Mississippi's abortion law, that includes the direct challenge to Roe v. Wade. I did listen to the whole thing live and have pulled five exchanges between various justices and the lawyers for the two sides that were playing out and get reaction from a special guest, an actual plaintiff in the case, who was down there yesterday.

She is Nancy Northup, president and CEO of the Center for Reproductive Rights, the lead litigator that challenged Mississippi's law on behalf of the clinics there. Nancy, thanks very much for making this one of your stops on the day after the hearing. Welcome back to WNYC.

Nancy Northup: Absolutely. Glad to be here to talk about the case.

Brian Lehrer: Listeners, we can take your reactions to or questions about the hearing as we parse some of the legal leads and connect it to people's real lives. 212-433-WNYC-433-9692 or tweet your question @BrianLehrer. Before we get to these five clips, Nancy, it wasn't you in court yesterday, it was one of the lawyers who works for you, Julie Rikelman. Where were you, physically, during the hearing?

Nancy Northup: I had started out the day. There was a rally of supporters for the case in front of the courthouse. We talked to them and spoke at that rally. Then, headed over to a quiet place, so I could listen to the arguments along with our clients from Jackson Women's Health Organization and some of the other attorneys on the case and headed back to the courthouse to congratulate Julie after her argument.

Brian Lehrer: What was it like out there with the competing rallies going on at the same time and while you were getting ready for those so-crucial proceedings?

Nancy Northup: It was very intense in front of the courthouse yesterday. Obviously, it illustrated if you've seen the photos that there are very-- The country remains divided on this issue, even though the majority of people in the United States, 60-70% want to see abortion legal, but you saw both sides, very intense in front of the court yesterday. It reminded me of a point in the argument when Justice Kagan said, "Look, nothing's changed in the sense that some people think this is right. Some people think this is wrong.

They thought so in 1973. They think so today, but a balance has been struck in the Roe v. Wade case." There is no reason to reverse that, that you're not going to solve this one way or the other. We need to keep the strong constitutional protections for women's right to make their decisions about their bodies, lives, and future.

Brian Lehrer: Let's get to these excerpts. Nancy, I'm not claiming these are the definitive five clips. There were so many important moments and exchanges. Maybe, you'll want to talk about other moments. Hopefully, these are five of the significant moments, and people will find them informative, I hope, and we'll get your reaction. What I will say, listeners is that if you've never heard Supreme Court oral arguments before, it's pretty amazing to hear how these things work with short presentations by the lawyers for each side.

Then aggressive, aggressive questioning of them by the justices who obviously feel no hesitation, given their status in the world about interrupting. Here we go. The first clip we'll play is the longest. It's a two-and-a-half-minute exchange between Justice Sonia Sotomayor and the Solicitor General of Mississippi, Scott Stewart, advocating for overturning Roe, which would mean ending the constitutional right to an abortion that the Roe v. Wade decision established in 1973.

In this clip, you'll hear Justice Sotomayor bring up the real-life effect on women, and also, bring up the first amendment in the context of its guarantee of religious liberty and its prohibition against establishing one religion as the law of the state. Justice Sotomayor.

Justice Sonia Sotomayor: How is your interest, anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions. When you say, this is the only right that takes away from the state the ability to protect the life, that's a religious view, isn't it, because it assumes that a fetus is life at-- when? When do you suggest we begin that life?

Solicitor General Scott Stewart: Your honor, aside from--

Justice Sonia Sotomayor: Putting it aside from religion.

Solicitor General Scott Stewart: I think there might be more than one question. I'll do my very best, Justice Sotomayor. I think this Court in Gonzales is pretty clearly recognized that before viability, we are talking with unborn life with a human organism. I think the philosophical questions, your honor, mentioned all those reasons that they're hard, they've been debated, they're important. Those are all reasons to return this to the people because the people should get to debate these hard issues, and this court does not in that kind of a circumstance.

Justice Sonia Sotomayor: When does the life of a woman and putting her at risk enter the calculus. Meaning, right now, forcing women who are poor and that's 75% of the population and much higher percentage of those women in Mississippi who elect abortions before viability. They are put at a tremendously greater risk of medical complications and ending their life 14 times greater to give birth to a child full-term than it is to have an abortion before viability.

Now, the state is saying to these women, "We can choose, not only to physically complicate your existence, put you at medical risk, make you poorer by the choice because we believe what? That--

Solicitor General Scott Stewart: Sure, your honor. To answer, I think the question you led with, and then, I think expanded on, but is still on the same issue is as to when does a woman's interest enter. As far as we're concerned, it's there the entire time. Our point is that all of the interests are there the entire time, and Roe and Casey improperly prevent states from taking account and weighing those interests, however, they think best.

Brian Lehrer: There you had Justice Sotomayor and Mississippi Solicitor General, Scott Stewart. Our guest is Nancy Northup, CEO of the Center for Reproductive Rights, lead litigators on the abortion right side. Nancy, I played that first because we can get into all the legal leads we want about precedent and super precedents and stare decisis and the legal basis for viability as opposed to undue burden. We will get to some of that, but Justice Sotomayor just made it real, talking about the effects on real women's medical and lifelong risks.

What did you think of where she decided to go there in the Mississippi Solicitor General's responses?

Nancy Northup: I think that Justice Sotomayor really went to the center of the issue here, which is that Planned Parenthood v. Casey, which was a case 30 years ago, that reaffirmed Roe that they were correct. That it's a fundamental deprivation of liberty for the government to take control of a woman's body, coerce her to go through pregnancy and childbirth with all of the physical demands and the risks and the life-altering consequences that that brings.

That's why both Roe, 49 years ago, and then Casey, 30 years ago, and other cases have reaffirmed that until viability, this decision has to be for the woman herself to protect her liberty while balancing the state's interest in developing embryonic and fetal life. She made it very, very real by getting down to the facts in Mississippi about the percentage of women who are low income, who access abortion care, and what it will mean for them.

She put it so pointedly to say, can the government, not only make them bear the pregnancy and put all those risks to their life and their health but make them poor, really change the arc of their life. That's at the center of the liberty interest that is protected here, and I think that Justice Sotomayor captured it so vividly and so well.

Brian Lehrer: We have a caller on the first part of what she brought up, the religious liberty part. Let me take Dick in Manhattan. Dick, you're on WNYC, hello. Dick, are you there? Dick is listening on delay.

Dick: Yes.

Brian Lehrer: Hi, Dick.

Dick: I'm sorry. Hi, are you there?

Brian Lehrer: Yes, go for it.

Dick: My question is this, is not the first amendment right of freedom of religion affected by a state imposing an abortion ban to the extent that in religious faith, the Judaism, the rights and concern about a woman's health predominate the effect of what the laws are. A rule against abortion affects the exercise of that person's freedom of religion.

Brian Lehrer: Dick, I'm going to leave it there. That relates to the first thing that Justice Sotomayor said in this clip. She asked the Solicitor General of Mississippi, "How is your interest anything but a religious view." The issue of when life begins has been hotly debated by philosophers since the beginning of time, it's still debated in religions. You may remember Nancy from our previous conversation, that I always think abortion rights could be hung on a favorite right of the political right, which is religious liberty.

Since it's the Orthodox denominations that see fetuses as people with rights that supersede women's controls over their own body. Why isn't it more central to this case, as an attempt to impose one religion over others?

Nancy Northup: Well, what the court has said about this back in the Planned Parenthood v. Casey case, is exactly that, that people of good faith can and probably always will, is the court's language, disagree on this fundamental issue about the morality of abortion. The court went on in Casey to say "Because it is so central to our ability to think freely and make decisions for ourselves, the government can't substitute its own viewpoint." Although they don't analyze it under the First Amendment law about when laws overlap with particular religious perspectives--

They don't put in first amendment terms, but they have clearly said that people of good faith are on all different sides of this issue, and it is ultimately in a free society for the person to be able to make that decision.

Brian Lehrer: Next clip. Here is Chief Justice John Roberts. Very important because he's a potential swing voter, asking the Mississippi Solicitor General why if they throw out Roe, wouldn't they have to throw out other decisions, decided on privacy grounds. Like the right to same-sex marriage, or interracial marriage, or contraception. This is a minute and a half. He refers at the start to the respect for precedent known as stare decisis.

Chief Justice John Roberts: On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I've actually never quite understood how you evaluate that. Is it wrongly decided based on legal principles and doctrine when it was decided or in retrospect? There are a lot of cases around the time of Roe, not of that magnitude but the same type of analysis, that went through exactly the sorts of things we today would say were erroneous. We look at it from today's perspective, it's going to be a long list of cases that we're going to say were wrongly decided.

Solicitor General Scott Stewart: Well, I'd say, Mr. Chief Justice, that you can look both, was it wrong at the time, has it been unmasked as wrong by new understandings, new knowledge, and new developments? I think my colloquy with Justice Barrett indicated, the court won't have to be looking at many other areas because this is an area that has a uniquely problematic set of stare decisis considerations. A lot of other controversial areas or once controversial areas are quite settled clear rules and don't have those considerations against them.

Really, by overruling Roe and Casey, the court won't have to go down that road, and a lot of those decisions are quite readily groundable in history tradition in the court's traditional factors, Your Honor.

Brian Lehrer: Chief Justice Roberts with Mississippi Solicitor General Scott Stewart, if Roe fails, some people say the Griswold decision guaranteeing a right to contraception on privacy grounds might be next in line or the Obergefell decision on same-sex marriage, et cetera, but here's the difference. Many conservatives will argue and this sets up our next clip. Unlike in contraception before pregnancy, or with same-sex marriage, there is another person involved with the competing rights.

Here's a clip of Justice Samuel Alito asking head-on about fetal rights, then we'll hear the response from Attorney Julie Rikelman who works for our guests Nancy Northup at the Center for Reproductive Rights. Justice Alito, first.

Justice Samuel Alito: The fetus has an interest in having a life and that doesn't change, does it from the point before viability to the point after viability?

Attorney Julie Rikelman: In some people's view, it doesn't, Your Honor, but what the court said is that those philosophical differences couldn't be resolved in the way--

Justice Samuel Alito: That what I'm getting at, what is the philosophical argument, the secular philosophical argument for saying, this is the appropriate line? There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics, but viability is dependent on medical technology and medical practice. It has changed, it may continue to change.

Attorney Julie Rikelman: No, Your Honor, it is principle because in ordering the interest at stake, the court had to set a line between conception and birth. It logically looked at the fetus's ability to survive separately as a legal line because it's objectively verifiable and doesn't require the court to resolve the philosophical issues at stake.

Brian Lehrer: That was Justice Alito, with Julie Rikelman, Attorney for the Center for Reproductive Rights. Nancy Northup, president, and CEO of the center is our guest. Nancy, the argument that Justice Alito was framing that the problem Mississippi side also makes was that medical science made viability to survive outside the womb earlier than it was when Roe was decided in 1973. At that time, the courts had 22 to 24 weeks. Maybe it's early to now making Mississippi's 15 weeks, which is what's in this law, consistent with the basic idea. Your response to that?

Nancy Northup: Well, I think it's important to start with 15 weeks by all medical knowledge is clearly probably 9 weeks before viability. There's no debate about that, and Mississippi doesn't contest that. The issue really is about the line that the court drew in 1973 and reaffirmed 30 years ago. I think what's most important, you started with the stare decisis conversation with Chief Justice Roberts. Stare decisis is really important, it means, let the decision stand. The reason it's important is because of why courts are different than political institutions.

If they were just showing up every week to decide cases, as they choose, as their own viewpoints are, they wouldn't be any different than any political institutions. I'm sure we'll get into a moment the very intense conversations by Justice Kagan, Sotomayor, and Breyer about the threat to the court's integrity if they reverse Roe v. Wade. All of these conversations, all of these points that Justice Alito is making that the state of Mississippi is making, they were all made in a case 30 years ago, the Planned Parenthood v. Casey case, every single one of them.

It carefully examined and rejected every possible reason for overturning Roe and holding that the woman's right to enter pregnancy until viability was a rule of law and a component of liberty that it would not renounce 30 years ago. That's because the line can move, the science moves, but as Julie Rikelman said, it is a objectively verifiable line. Therefore, it has been very easy for the courts to follow. These laws like the Mississippi laws were easily struck down, including, in this case, it can be easily followed. It makes that accommodation between the woman's interest in her health and life and future or bodily autonomy.

What the Court has recognized is the state's interesting interest in developing embryonic and fetal life. That was the accommodation that the court made almost 50 years ago, and it has proved to be accommodation of both those interests.

Brian Lehrer: Well, that 1992 case that you say, Casey v. Planned Parenthood in Pennsylvania, still kept Roe basically intact. It didn't rely so much on when viability of the fetus was as what restriction on abortion would put an undue burden on a woman, the undue burden standard. Another of Mississippi's arguments yesterday was that the 15-week limit the law would impose gives a woman ample time, 15 weeks to decide if she wants to carry a pregnancy to term. Why not?

Nancy Northup: Well, again, we have a law that we have been following for all these years about the fetal viability line. The reality is, although the vast majority of abortions in Mississippi as well as elsewhere in the country, are before 15 weeks. There are still people for whom it is important to get access to abortion care after 15 weeks. Julie Rikelman made this in her argument yesterday, as did the Solicitor General of the United States that people who are young or on contraception may not realize that they are pregnant.

People who are in low income may not have the finances to put together to seek abortion care. There may be barriers as there are Mississippi to getting that care.

For the individual circumstance, every pregnancy is different. I think that's where when people have these generalized arguments, they're really missing the fact that every pregnancy is different, every person's situation is unique. The court's accommodation has been to say, ultimately, it's for the woman to judge her life circumstances her health, her needs up until the point of viability.

Brian Lehrer: You just made a point that you made in a different way before and that Justice Sotomayor made in the clip of her that we played which is that there is a disparate impact. Not all women are affected in the same way by a law that looks neutral on its face. On paper says it applies to all women, all people in the same way. We have a call coming in about that, Tim in Brooklyn. You're on WNYC. Hi Tim.

Tim: Good morning, Brian. First of all, I just want to say thank you for being you and for being there for us. It really has made a big difference.

Brian Lehrer: Thank you.

Tim: Thank you. Listening to the Mississippi Attorney General yesterday really made it crystal clear that this is inevitably a class issue. Then in this country, therefore perceived at least as a race issue as well. These legislatures know that it doesn't apply to them, to their wives, or their daughters because they're privileged and they can travel. This is really explicitly imposed upon poor people, which by perception are Black, brown, and Indigenous people. What could invoke the ghost of slavery more clearly than these old white men telling young often teenage Black, brown, and Indigenous women, what they can do with their own womb?

It's just totally clear to me, and on the other side of that, we the left-liberals have missed the boat. The one thing that's changing the science they were talking about what's changed in science is we now know that having a child to term is the most extreme thing, the human body undergoes. Therefore a woman should have the right to terminate a pregnancy at any stage of viability. That's a red herring to me based on the doctrine of self-defense.

If Kyle Rittenhouse can bring an illegal gun to a demonstration and get an attaboy thumbs up because of the color of his skin, shoot two people and walk on the grounds of self-defense, then women should be able to control their own bodies to protect their health.

Brian Lehrer: Tim, thank you very, very much. That actually sets up our next clip from yesterday when Tim talks about the extreme stress on a woman's body of pregnancy and labor. This is a clip of Justice Amy Coney Barrett asking whether abortion rights aren't as necessary to a woman's self-determination as is being argued by the abortion-rights side because adoption is another option. Again, we'll hear the response of Julie Rikelman from the center for reproductive rights, but here's Justice Barrett.

Justice Amy Coney Barrett: Actually, as I read Roe and Casey, they don't talk very much about adoption. It's a passing reference that means out of the obligations of parenthood. As I hear this answer then, are you saying that the right as you conceive of it is grounded primarily in the bearing of the child, in the carrying of pregnancy? Not so much looking forward into the consequences on professional opportunities and work-life and economic burdens?

Julie Rikelman: No, your honor, I believe it's both, and that is exactly how Casey talked about it. It talked about the two strands of cases that supported the right. One was the strand of cases supporting bodily integrity and cited to cases like Curzan and Riggins v. Nevada. The second was the strand of cases supporting decisional autonomy, and specifically decisions related to childbearing marriage and procreation decisions like Griswold, Loving. It's really both strands that we are relying on here.

Brian Lehrer: Justice Amy Coney Barrett with Attorney Julie Rikelman from the center for reproductive rights. Our guest is her boss, Nancy Northup, president and CEO of the center. Let me ask you for a short answer on this because we have one more clip to play and we're running out of time. Do you want to unpack a couple of those legal citations as they pertain to adoption allegedly relieving women of the burden of having to stop the rest of their lives to raise children that they didn't want to have, if abortion were to be made illegal again?

Nancy Northup: I think that entire line of argument can be put aside. Adoption was available in 1973 when Roe was decided, and it doesn't address at all the huge physical demands of pregnancy on a person who's bringing it to term. I would like to just mention that, and there was discussion of this in the court yesterday, there was an Amicus brief by 150 leading economists about the fact that the right to abortion has increased women's status. That young women are 20% more likely to graduate from college, more than 40% more likely to enter a profession.

It's changed the arc of women's lives, not just in the past but today, and that is abortion not just contraception. Justice Barrett's argument is not well-founded.

Brian Lehrer: Finally clip number five. It's Justice Brett Kavanaugh considered a possible swing voter who asks Center For Reproductive rights, Attorney Julie Rikelman, why the court shouldn't just be neutral on a contentious social issue like abortion and let politics sort it out through elections. Justice Kavanaugh.

Justice Brett Kavanaugh: The other side would say that at the core problem here is that the court has been forced by the position you're taking and by the cases to pick sides on the most contentious social debate in American life. To do so in a situation where they say that the constitution is neutral on the question of abortion. The text and history that the constitution's neither pro-life nor pro-choice on the question of abortion. They would say therefore, it should be left to the people, to the states, or to Congress.

I think they also then continue because the constitution is neutral that this court should be scrupulously neutral on the question of abortion. Neither pro-choice nor pro-life, but because they say the constitution doesn't give us the authority, we should leave it to the states. We should be scrupulously neutral on the question. That they are saying here, I think that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue. I think that's at a big picture level, their argument, wants to give you a chance to respond to that.

Nancy Northup: Justice, Brett Kavanaugh.

Julie Rikelman: A few points if I may, your honor. First, of course, those very same arguments were made in Casey and the court rejected them saying that these philosophical disagreements can't be resolved in a way that a woman has no choice in the matter. Second, I don't think it would be a neutral position. The constitution provides a guarantee of liberty. The court has interpreted that liberty to include the ability to make decisions related to childbearing, marriage, and family. Women have an equal right to liberty under the constitution, your honor.

If they're not able to make this decision, if states can take control of women's bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the constitution.

Brian Lehrer: Justice Kavanaugh and Julie Rikelman, Attorney for the Center for Reproductive Rights, representing Mississippi's Jackson Women's Health Abortion Clinic. One more time we have the president and CEO of the center, and so grateful that the head of the lead litigator, in this case, is giving us some time on the day after, Nancy Northup. Nancy, as we run out of time here, sure it sounded like Kavanaugh was saying in a nice neutral-sounding way, abortion is not a constitutional right, it's a pull political issue. Therefore Roe is wrongly decided and we should overturn it.

After all was said for a couple of hours there at the Supreme Court yesterday how do you feel, do you think Roe is going to be overturned and you're going to have to have this fight in the 50 state capitals?

Nancy Northup: Look, we certainly heard some questions yesterday from some of the justices that were deeply troubling. The Center for Reproductive Rights opposed some of the justices now on the Supreme Court on the grounds that we were deeply troubled about how they would rule on Roe v. Wade. I think that in the end of the day, the justices are going to have to wrestle with what Breyer and Sotomayor, and Kagan raised. Which is that regardless of what their views are, on whether the constitution protects the right to abortion as the court has reaffirmed for almost 50 years, that the integrity of the court is on the line.

Justice Sotomayor said, "What are we going to do with the stench of a reversal because of a change in the composition of the court." She talked about that. She talked about the fact that you can't just have a new justice on the court. That's what the states are looking for for a new ruling. Breyer talked about the loss of confidence in the judiciary. Kagan talked about people will think we're a political institution. That's what the court will be talking about. They know it is their role to follow stare decisis. This is a precedent because of Casey and so I think they're going to be thinking long and hard.

We hope that they come down and do what they should be doing as justices, which is to follow the rule of law and to protect the rights of women in this country under the constitution. As Julie argued in her response to Justice Kavanaugh, it is well-grounded in the constitution that people have bodily autonomy and an ability to make these personal decisions in their life and family. In the case of women, this is what applies in the area of abortion.

Brian Lehrer: Nancy, thanks for coming on today. Please keep coming on the show.

Nancy Northup: Great. Thanks so much for having me.

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