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Melissa V. Harris-Perry: On December 13th, 1971, the Supreme Court heard oral arguments in the case of Roe v. Wade.

Sarah Weddington: Jane Roe had gone to several Dallas physicians seeking an abortion, but had been refused care because of the Texas law. She filed suit on behalf of herself and all those women, who have in the past at that present time or in the future, would seek termination of a pregnancy.

Melissa: That was the voice of the legendary attorney and later Texas state lawmaker, Sarah Weddington. Ultimately, the arguments presented by Weddington and the legal team representing Jane Roe were successful. In a 7–2 decision, the Supreme Court held that the constitutional right to privacy protects a pregnant woman's choice to terminate a pregnancy. However, the all-male court also argued that this right was necessarily balanced against the state's interest in protecting "the potentiality of human life."

It is this balance of an individual's right to privacy against the government's interest in potential human life, which created a fulcrum at the point of viability. That is to be clear, a legal rather than a strictly medical designation. Tomorrow, almost precisely 50 years since Sarah Weddington address the court, a new generation of justices will consider a case about a southern abortion law.

The case before the court this time involves the 2018 Mississippi law banning abortions after 15 weeks of pregnancy, and well before fetal viability outside the womb is possible. If the court sides with the state of Mississippi, the decision may upend five decades of constitutionally protected right to abortion. The effects would be swift and consequential. The Guttmacher Institute reports that 21 states have in place, trigger laws set to ban abortion in the state immediately if Roe v. Wade is overturned. Catherine from New York City shared her experiences in a phone call to The Takeaway.

Catherine: Roe versus Wade made a huge difference in my life. First, when I was day-raped as a teenager and then again as a young adult when I had a birth control failed. I went on to have four beautiful children. If it were repealed today, personally, it wouldn't affect me and my body but it would affect my children and the choices that they have.

Melissa: Bertha Powell in Santa Rosa, California told us that while she doesn't believe in abortion, women should be able to make that decision for themselves.

Bertha Powell: While Roe has not made a personal difference in my life, I had two children that were planned and I am Catholic so, I personally do not believe in abortion but I certainly believe in a woman's right to choose.

Melissa: Another caller told us that even if abortion care is illegal, pregnant people will continue to seek terminations.

Caller 3: I have had one legal and one illegal abortion back in the late '60s. I was very lucky to have a very competent doctor. I think it'll be sad for them to take away the right of women to choose for their own bodies. Let me assure you, women will continue to have abortions no matter what the Supreme Court decides because it will always be our bodies and we will find a way.

Melissa: I'm Melissa Harris-Perry and the future of abortion is where we begin today on The Takeaway. I spoke with Melissa Murray, Law Professor at NYU, faculty director of the Birnbaum Women’s Leadership Network, and co-host of the legal podcast, Strict Scrutiny. Professor Murray began by discussing the connections between this Mississippi case and the Texas abortion ban that the court considered earlier this month.

Prof. Melissa Murray: Both of those cases are challenges to so-called heartbeat laws, laws that prohibit abortion at a particular point in pregnancy. The Mississippi law that's being challenged and will be heard on Wednesday is a ban on abortion at 15 weeks. The Texas law that has been in effect since September 1st is a ban on abortion at six weeks. Both of these laws are patently unconstitutional under the Supreme Court's current jurisprudence, which prohibits states from banning abortions before viability. Viability is the point of a pregnancy at which the fetus could survive independently outside of the womb, and it's typically marked at 23 or 24 weeks so, both of these laws are well outside of that marker.

The case in Texas, though, that came before the court on November 1st for oral arguments was really taking up jurisdictional questions, whether the United States Department of Justice or the clinics could sue under the Texas law that has been in effect. The questions really were whether or not those particular cases could even be heard by federal courts. There's no such question in this case that the court will hear on Wednesday. It's already been through the lower federal courts where the Mississippi law was enjoined, so it's currently not in effect in Mississippi. The court will simply take up the questions that they granted certiorari on.

The first question is whether or not the state can restrict abortion in advance of viability. Then the second question is one that the court really didn't say that they would take up, but it is one that Mississippi has subsequently invited the court to take up and that, of course, is whether or not Roe versus Wade and Planned Parenthood versus Casey, the two opinions that formed the corpus of the court's abortion jurisprudence, should be reconsidered and overruled.

Melissa: Okay. I want to go back for a moment just to establish that corpus of jurisprudence around abortion. Start with explaining to me and to our listeners, why the states are able to restrict abortion at the point of viability. What happens at the point of viability that gives the state that right?

Prof. Murray: In Roe versus Wade and Planned Parenthood versus Casey, the court concluded that although a pregnant person has the right to terminate a pregnancy, the state also has rights. One of the state's interests at this point is to promote the potentiality of life, and viability, that 23 or 24-week marker in pregnancy is determined to be the point at which the fetus can survive outside of the womb and when the state's interest in promoting the potentiality of life can be perfected.

Those in the anti-choice movement argue that 23 to 24 weeks really doesn't capture the point at which the fetus could survive outside of the womb, although there's a lot of debate among doctors and physicians about whether or not that is the case. One of the arguments that they make is that technology has advanced so much that that 23 to 24 marker is no longer salient as a matter of medical technology and so they've asked the court to do away with that. Again, though, they've also asked the court to do something much more drastic, which is to formally overrule Roe and Casey entirely.

Melissa: Let's stick on this corpus of jurisprudence for a moment. What would it mean beyond abortion? We'll come back to abortion in one moment, but when we think about what is established by Roe and Casey, what kinds of things are at stake? Clearly, the constitutional right to seek the termination of a pregnancy before 23 to 24 weeks, but what else is at stake?

Prof. Murray: Sure. Roe versus Wade and Planned Parenthood versus Casey rest on the right to privacy. The right to privacy was announced by the court in a 1965 case called Griswold versus Connecticut. In that case, the court determined that the state of Connecticut, which prohibited the use of contraception even by married couples, had gone too far. It allowed married couples the opportunity to use contraception within the confines of their marriage.

It also made a broader statement about how far the government could go into the intimate lives of individuals and it said it can't go quite that far into the bedrooms of married couples. The court later elaborated that idea of a right to privacy and another case about the rights of unmarried people to use contraception. Then a year later in Roe versus Wade, it said that the right to privacy was broad enough to encompass the right of a pregnant woman to terminate a pregnancy in consultation with her physician.

The right to privacy is also a bedrock of other rights that lay outside of the reproductive rights jurisprudence. For example, the right to marry is believed to be part of that corpus of right to privacy rights that individuals have. The right to raise your children in the manner of your choosing is part of that idea of privacy. Of course, a lot of basic decisions fall from that. The question of interracial marriage was not only taken up as a question of racial equality, but also a bedrock question of the right to privacy. Can the state prevent you from marrying the person of your choice? Of course, that has also been extended to the question of whether same-sex marriages are recognized under the Constitution.

It is worth noting here that in the filings before the court in the Dobbs case that will be heard on Wednesday, there's a brief by two lawyers, Adam Mortara and Jonathan Mitchell. Jonathan Mitchell is the architect of Texas SB 8, that law that prohibits abortion at six weeks. In that brief before the court, Mortara and Mitchell argue that in addition to reconsidering Roe and Casey, the court should also take the opportunity to reconsider this entire line of right to privacy cases from Griswold, all the way to Obergefell versus Hodges, the 2015 case that legalized same-sex marriage. Their argument is if Roe is unstable and should be overturned, then all of these cases which rest on that right to privacy are similarly imperiled and should be reconsidered and overruled.

Melissa: If this decision goes not in the most limited but in the broadest, if Roe and the jurisprudence around it is in fact, overturned, what will that mean the next day?

Prof. Murray: Well, if Roe is overturned and again, I think it's a very real possibility. There is a six to three conservative supermajority on the court with many in that conservative block expressing deep skepticism, if not antipathy for abortion rights, so I think it's a very likely prospect. If it is the case that the court overrules Roe and Casey, in a number of states, there are already on the books trigger laws that would criminalize and outlaw abortion as soon as Roe versus Wade is overturned.

Almost immediately, broad swaths of the South and the Midwest would be abortion-free zones. That would send pregnant persons throughout those parts of the county who are looking for abortion care into other states that have more hospitable landscapes. Essentially, we would be creating a legion of reproductive refugees going to neighboring states. Basically, what we have seen in Texas on the ground since September 1st is what we would see throughout broad swaths of the country. That's the immediate impact.

I think the longer-term impact is, as I said before, we are likely to note that this is not going to be the end of the anti-choice movement. I think they will press forward for a personhood amendment again, to simply remove the question of abortion from the state's prerogative entirely by enshrining the fetus as a person for purposes of constitutional law. That of course, would take this whole question of abortion rights away from all of the states, not just those who disfavor abortion rights right now.

Melissa: For your last question, whether through trigger laws or the Mississippi law itself, do they both ban surgical and medical abortions, or is there still the possibility of medical abortion, which I recognize has to happen quite early in a pregnancy? Is this about the method and mean of the procedure or are both truly banned?

Prof. Murray: It's a terrific question. In the past, I think anti-choice restrictions have delineated between surgical abortions on the one hand and medication abortions on the other, but with some of these so-called heartbeat laws, which just prohibit abortion a particular time during pregnancy, especially Texas SB 8, which bans abortion at just six weeks. Six weeks is the period when a medication abortion is actually the preferred option of most physicians. If the individual is even seeking abortion care at that point because she knows she is pregnant. It's not always the case that someone does know that they are pregnant at that point in the pregnancy. These heartbeat laws seem to sweep broadly to include not just surgical abortions, but also any abortion, so very different from some of the other abortion restrictions which actually banned certain procedures as opposed to abortion writ large.

Melissa: Melissa Murray is a Law Professor at NYU, faculty director of the Birnbaum Women’s Leadership Network, and one of the co-hosts of the podcast, Strict Scrutiny. Thank you so much for walking us through all of this Professor Murray.

Prof. Murray: Thanks for having me.

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