Brigid Bergin: It's the Brian Lehrer Show on WNYC. Welcome back, everybody. I'm Brigid Bergin from the WNYC and Gothamist newsroom. You've been listening to NPR's special coverage of this morning's Supreme Court's decision to overturn Roe v. Wade when Justice Samuel Alito wrote for the majority in the case, Dobbs v. Jackson Women's Health Organization. He summarized the opinion with "The constitution does not confer a right to abortion. Roe and Casey are overruled and the authority to regulate abortion is returned to the people and their elected representatives."

Now, you can share your reactions to this momentous decision. Call us at 212-433-WNYC, that's, 212-433-9692. As we take your calls, we're joined once again by Emily Bazelon, a staff writer for the New York Times Magazine, co-host of Slate's Political Gabfest Podcast, and Truman Capote fellow for creative writing in law at Yale Law School. Emily, thanks so much for joining me.

Emily Bazelon: Thanks for having me.

Brigid Bergin: Emily, aside from the sheer shock of the ending of an established right, what stood out to you about Justice Alito's decision?

Emily Bazelon: One thing that was really interesting is that in most ways, I think it tracks the draft that was released earlier, and that draft was from February. I think there was a question about whether it would be softened in some way. I don't really see that. It is just a real takedown of the basis for the constitutional right to abortion.

The Alito's opinion claims that it is only about the constitutional right to abortion and not also about other important decisions, like the protection for same-sex marriage that the court has also issued based on what's called substantive due process in the 14th amendment, but there's really no guarantee that it will be limited to these facts. These facts are a very big deal especially for American women.

Brigid Bergin: Can you talk about how he explained overturning precedent?

Emily Bazelon: This court has a principle called stare decisis that leads it to usually respect its previous decisions and the ideas that people depend on law for stability and for planning. In this case, though, the court obviously decided to overrule Roe v. Casey. Alito does that by comparing Roe to one of the most hated decisions in American history, Plessy v. Ferguson, which was the 1896 ruling that enshrined the racist principle of separate but equal.

It really is putting Roe on the constitutional garbage heap. That is really directly what Alito says, which I think for a lot of people who find Roe foundational important to their lives, is pretty shocking.

Brigid Bergin: The constitutional garbage heap, that is a quote that will be burned into my brain after the segment. Emily, the right to abortion had already been weakened in several states. This decision is going to be experienced differently in different parts of the country. Is it less earth-shattering in states where abortions were only available in one location already?

Emily Bazelon: It is certainly true that there are a bunch of states where access has been really constricted, especially Texas, where women have had really only a partial right to abortion up until the sixth week of pregnancy. Then you're right. There are also states where there's only one clinic, but to have zero access is different from having even a little bit of access. This is a very big country. If as expected, lots of states that are next to each other, like across the South or the mountain West all ban together to ban abortion, people are going to have to either travel great distances or figure out how to get abortion pills mailed to themselves even though the states have at least so far made it that illegal as well, the same group of states.

Brigid Bergin: Can you talk about how this fits into a history of the court taking away rights like this before. Has this happened like this before?

Emily Bazelon: I really can't think of a time. It depends what you mean by taking away rights. If you think that it was really important for corporations to be able to exploit workers in the beginning of the 20th century, then the court rolled back those rights, but we usually think of rights in terms of civil rights, individual rights, and human rights, and to have a bedrock. Example of all of those things for 50 years and then have it taken away. To me, that feels unprecedented. Maybe some historian will come up with an example I haven't thought of.

Brigid Bergin: Listeners, we want to hear your reactions to this momentous decision. You can call us at 212-433-WNYC. That's 212-433-9692. Let's go to Steven in Pearl River. Steven, welcome to WNYC.

Steven: There are two things here. Okay. First, it is devastating to think that in the 21st century that the Supreme Court would strip away rights from a very large segment, of the majority segment of our population. Number one. The other devastating aspect of it is that I went back and I looked at what all six justices said about Roe during their confirmation hearings. What are you supposed to do when at least two-thirds of the Supreme Court are bold-face lies? I wonder how Susan Collins feels right now.

Brigid Bergin: Steven, thank you so much for your call. I'm sorry. We're having a little bit of trouble hearing you. Your phone was a little bit low. I want to go back to Emily, for a moment. Certainly, you could react to some of the passion in Steven's call, but I'm wondering also, you do political as well as legal analysis. This is now going to be up to politicians. I'm wondering how you think this is going to play out in terms of electoral politics.

Emily Bazelon: This is a huge question for the 2022 elections and beyond. I think what's important to remember is that what matters is how it plays out in individual states. We don't have a national presidential election in 2022. What we have are lots of races for Senate, for governor, for Congress, for state representatives, and depending where you live, this issue of abortion access is going to be at the forefront.

Now, of course, there are some states where banning abortion or severely restricting it is popular. Those politicians will be able to run on that issue, but there are other states and I'm thinking right now of Pennsylvania, where I grew up, that's a purple state. Purple state with the Republican-controlled legislature and so suddenly the race for governor becomes hugely consequential for abortion rights for Pennsylvanians. That's going to be the question of how this breaks down in terms of whether it moves voters to come to the polls and whether democratic voters who have tended to be more complacent are moved by this threat.

Brigid Bergin: We have lots of calls from across the region, and I want to go to Lauren in Brooklyn. Lauren, welcome to WNYC.

Lauren: Hey, thanks so much for your coverage of this. I'm just so upset today, feeling really despondent. I have a year and a half year-old niece, and as a 31-year-old woman who is thinking about building a family, and where I want to do it. The constant news cycle, one of children not being protected and schools, and this now thinking of raising a young woman or even a son or any identity child in this country is frightening. It's very scary. I actively donate to abortion funds and I'm thinking, what type of protests will there be in New York City this weekend that everyone in my group chats can all attend together. What can we do for visibility?

I'm scared to go to a protest because the same religious zealots that are supporting this type of decision and taking away our rights in this country are the same people who want to tote guns in public spaces. I feel like I've never felt this extremely divided or partisan in my life, but I'm starting to see it's really one against the other here. As rights are getting stripped away, I like have a friend and a biracial couple of like, is this what's next? What type of rights? What do we have to be scared of getting ripped away next to the point of the closing of the dissenting peace? I'm sorry. I'm very emotional.

Brigid Bergin: It's very understandable.

Lauren: I really can not believe this.

Brigid Bergin: Can I ask you a question? You talked about the group chats that your friends are looking at to figure out where you can go and raise your voices this weekend. Are you talking in that group chat about the primary that's coming up next week and an opportunity to--

[crosstalk]

Maureen: The primaries coming up. We're all Brooklyn, New York City residents. We feel like a lot of other like-- we can guess how that will turn out hopefully. Nothing would surprise me now. The places where this really matters in terms of elections. Who knows? We can encourage people to write. We've written postcards last time there were primaries. I feel really hopeless. I'm a Portuguese citizen, dual citizen. I'm telling my partner, if we really are going to have children, we really need to figure out how to be fully remote and get out of here. It's a disaster.

Brigid Bergin: Lauren, thank you for calling and for sharing how you're feeling. I know it's really hard. I want to go to Linda in Brooklyn. Linda, welcome to WNYC.

Linda: Thank you. I would say that this is a very good decision for two groups, the funeral industry and the private prison industry in those 28 states, particularly because as we all know, pregnancy is not without its risks. There are certain women that may not choose to have the baby or in the case of when I was a nurse in Pennsylvania and saw women coming through the emergency room who were [unintelligible 00:11:43] by some [unintelligible 00:11:47] somewhere and some of them didn't live. Some of them would never were able to have children again, some definitely emotionally scarred for life.

Let us go back to that and let us not forget that this is not about controlling women. Then you shouldn't have these states be looking up and trying to track down these men because guess who made these women pregnant? If you are just as vigilant about tracking them down, giving them child support, making them pay, then I would say this is not about controlling women. I do not see a single state that is up in the game with all that.

I see this is all about controlling women, and controlling people of color. Believe me, this is an attempt to go back to Let's Make America White Again and 1950, which is kind of Mad Men without its charm. As I say to people, that when we time travel backwards, it wasn't so good for most women and everybody else other than White men in suits.

Brigid Bergin: Linda, thank you so much for your call. Emily, we have a lot of both emotion and anger in those calls. I wonder, is it fair to say we are back where we were before Roe v. Wade was decided or better now that there is medicine-based abortion, but worse in that banning abortion has become a real culture war component the way it wasn't in potentially 1973. How do you see that?

Emily: Yes, that's a good distinction to make. The politics of abortion have become incredibly divisive and I would say just bad for the country no matter where you stand. A lot of people who have, views of wanting some or most abortions to be legal, that is one side of the ledger. A lot of people have some ambiguity about what they want but it's really hard to find that reflected in the politics where the choices are one extreme or the other.

You are right, though, that medication abortions have really changed the risk profile, they are safe and effective. Something we really learned during COVID when for emergency reasons, some states in the United States and then also Britain and Canada went to allowing prescriptions of these pills without a doctor's visit. We learned that they can be really safe and effective, even if you're just taking them at home and having a phone call or a teleconference with an abortion provider.

The problem is going to be the legal barriers and the possibility that people who take these pills in states where abortion is illegal could be prosecuted. That hasn't happened yet. It's important, I think, to balance the possibility of that risk with all of the potential benefits to women who need abortions in states where that is going to be an important route, even if it's not entirely legal. These are these difficult questions that are going to have to be sorted out in the next months. We're going to learn about what it's like to live in a country where some people have rights and other people don't.

Brigid Bergin: It's the Brian Lehrer Show on WNYC. I'm Brigid Bergin from the WNYC and Gothamist Newsroom filling in for Brian, who's off today. My guest is Emily Bazelon, a staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest Podcast, and Truman Capote, fellow for creative writing and law at Yale Law School. We are taking your calls and reactions to the Supreme Court's decision to overturn Roe v. Wade this morning. The number 212-433-WNYC, That's 212-433-9692. Let's go to Kit in Bayville, New Jersey. Kit, welcome to WNYC.

Kit: Hi. Thank you for taking my call. I am devastated by this as a mother of two teenage girls and I had two miscarriages between both of my girls. They were very much wanted children but I had to have essentially what amounts to an abortion, which is a DNC. The second one I lost, I was so sick, I got sepsis, I was in danger of dying. If I hadn't had access to that care, I would have died and my second daughter wouldn't even be here. I've never had to make that decision because I was married at the time. It's unfathomable to me that we are taking back a woman's right over their own body.

I'm worried about my girls. What if one of them gets raped? What if one of them gets accidentally pregnant? I'm lucky enough to live in New Jersey where right now, it would still be relatively easy to get an abortion. My God, these people that live in these red states, what are they going to do? Once they have the baby the state says, "Oh, by the way, you're on your own." I'm devastated. I'm absolutely devastated.

Brigid Bergin: Kit, thank you so much for calling. Let's go to Emma in Brooklyn. Emma, welcome to WNYC.

Emma: Thanks so much for taking my call. I directed a film that was shortlisted for an Oscar last year called Takeover about the Young Lords takeover of Lincoln Hospital demanding equitable health care in the '70s. I'm actually at a loss with everyone's [unintelligible 00:17:32] right now. The reality is, is that all of these decisions have been made through legal channels. Voting is not the option obviously, do it.

There comes a time when we need to stop pontificating and discussing everything that's going on and we have to take action. I think that there's something really concerning to me about the lack of desire to take action beyond voting and posting on the internet. The reality is, is that nothing's going to change unless we actually do something.

Brigid Bergin: Emma, what is the direct action that you're talking about?

Emma: That's up for debate, I can't really say. Women maybe stop going to work or there's a number of things. Women are huge. We're like, 50% of the population. If we decide not to work, there goes. It's really about affecting the economy in a way that does not allow it to function anymore. I think that this also ties in with what callers have brought up earlier, is that people voting laws are preventing people from actually voting as well, especially people of color, indigenous folk.

We actually really should, especially White women like myself, really need to be aligning ourselves with the more the people that are constantly being prevented from voting, as well as putting our bodies on the line and really demanding change because all of these things are connected. If we continue to allow the rollback of rights of people of color, indigenous folks, it's just coming back down the line. We are experiencing the same thing that has been happening for decades. This just speaks to the lack of intersectionality of the connection of all of these issues.

Brigid Bergin: Emma, thank you so much for calling. We really appreciate another perspective. Emily, I want to go back to understanding more about what came out in these opinions today. I'm wondering if you know, if any of the justices who signed on to Alito's opinion had said that they thought Roe v. Wade was settled law in their confirmation hearings.

Emily Bazelon: Yes. Brett Kavanaugh said that, Justice Barrett talked about it as an important precedent and I believe that Neil Gorsuch did as well. The problem with those kinds of bromide statements is to say that something is settled law does not mean it will remain settled law, to say that something is an important precedent doesn't mean that you think you should keep it that way.

I think there was this subterfuge that the hearings allowed for. Lots of people were skeptical of those statements at the time, but lots of people didn't have the key votes in the Senate. The people who were nominated knew what they had to say to not raise alarm bells.

Brigid Bergin: What about Chief Justice Roberts? He didn't sign on to Alito's opinion but did agree with the overall decision in this case particular to the Mississippi law. What does this mean for his role as Chief Justice in a court that seems set on upending past decisions?

Emily Bazelon: It's a great question. Chief Justice Robert said that he thought that people should have a reasonable opportunity to have an abortion, and he would've upheld the 15-week ban in Mississippi, but he didn't think that the court needed to go beyond that. It is however legally speaking, an opinion that has no weight or meaning because Roberts was the sixth vote, so there are five votes for Alito's opinion. Which is the dissent points out allows states probably to ban abortion at fertilization. There doesn't seem to be really any limit that the majority is setting.

Roberts is from the point of view of this five-justice majority, pretty irrelevant. Whether that changes his role more broadly on the court remains to be seen. He still has lots of power to assign opinions and in other cases, he's writing big opinions, but in this one he is marginalized.

Brigid Bergin: Let's go to Curtis from Manhattan. Curtis, welcome to WNYC.

Curtis: Hi, I just have a very brief question. Is the Supreme Court a theocracy? Are we living in a theocracy, because seven out of nine Chief Justices are catholic?

Emily Bazelon: Yes. I think a lot of people worry about this. If you're on the liberal side of the spectrum and you feel like people with strong religious beliefs are in a position to impose them, that's alarming, I get it.

On the other hand, we have no proof that this is what is making the justices act, right? If they were doing things from a religious point of view that you agreed with, you might feel differently about it. People do have objections to abortion that are moral as well as religious, so I always get nervous about imputing religious motives to people who haven't said that's what they're doing, though I understand the concern.

Brigid Bergin: Justice Kavanaugh wrote that "This court held that the constitution protects unenumerated rights that are deeply rooted in the nation's history and tradition, but that abortion rights aren't deeply rooted in history and tradition." What history and tradition is he drawing from for that view and it's not universally accepted, is it?

Emily Bazelon: No. Although, this is an area in which just the whole idea that what matters here is deeply rooted in the nation's history and tradition is very limiting for expanding the scope of the constitution, because the constitution was written many years ago when people had different ideas and hadn't come up with some of the notions of liberty and equality that we mostly take for granted today.

The court goes on at length about the nation's abortion laws in the 18th and 19th century and basically talks about the idea that some states made it criminal to have an abortion before what was called quickening, which is when you can feel the baby's movement. Not all the states did that, but from the late 19th century until about 1950, or really when Roe was decided, many of them had laws that set pretty strict limits on abortion. That's the history that the majority is relying on here.

Brigid Bergin: Emily, we have to speak a moment about the dissenting opinion by justices Sotomayor, Breyer, and Kagan. The theme was sadness.

Emily Bazelon: Yes, I think that's right. What I noticed here that seemed important was that the dissent is really trying to emphasize women's liberty and equality and the way in which abortion is tied to that. This is not famously the main foundation for Roe v. Wade. Roe v. Wade was rooted in a right to privacy. That was how the court in 1973 before we had a lot of women's constitutional rights decision, that was how the court thought about the right to abortion.

Now we see in the dissent, this really full-throated idea that abortion is necessary so that women aren't forced into pregnancy and that that is really important for how they conceptualize their lives. We have the first sentence of the dissent is for half a century of Roe v. Wade and Planned Parenthood v. Casey have protected the liberty and equality of women. Respecting a woman as an autonomous being and granting her full equality meant giving her substantial choice over this most personal and most consequential of all life decisions.

I think for a lot of people who support access to abortion, that is the core of it.

Brigid Bergin: We're going to take one more caller just quickly, Jackie in Merrick, Long Island. Jackie, welcome to WNYC.

Jackie: Thanks so much for taking my call. I just wanted to of course, express extreme outrage for all women to my two daughters and to comment, my beautiful daughters are the results of IVs that I'm very concerned for women in other states. That it's where banning abortion at conception, that they may not be able to access IVFs and other [unintelligible 00:26:07] treatments.

Brigid Bergin: Jackie, thank you so much for raising that. I think it's a concern that many women myself included would share. Emily, is there any concern to that, that this could be the tip of the iceberg for rolling back access to other reproductive healthcare act?

Emily Bazelon: I don't want to catastrophize, but it is possible in this way that it was not until this morning. That in itself, the anxiety and fear that causes is a cost that the court is imposing here. The answer to your question is going to be up to the states and it's going to be up to future court decisions. I think one thing that's going to be really important to watch are state courts.

State courts interpretations of their own laws and constitutions, because now the federal national rule that we've lived with since 1973 is gone. The whole playbook changes for lawyers and for abortion providers who are going to be directly affected by this as well as for women and people who are pregnant across the country. You're going to see really different results in different places. It's like we're really sailing into uncharted territory here.

Brigid Bergin: That's exactly how I was-- Those were the words in my head as you were talking, unchartered territory. We're going to have to leave it there. Thank you to Emily Bazelon, a staff writer for the New York Times Magazine. Co-host of Slate's Political Gabfest Podcast, Truman Capote fellow for creative writing and law at Yale Law School and the author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Thanks so much for joining us.

Emily Bazelon: Thanks so much for having me.

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