MEGAN CISTULLI: Hello and welcome to Unwritten. My name is Megan Cistulli, and I'm a student at the University of California-Berkeley studying political science. And today we will be exploring the Supreme Court and the future of women's rights. I'm joined by Professor Christine Nemacheck of William & Mary College, and she's also a Pearson author. Dr. Nemacheck, thank you so much for being here today. Please take it away with your hot take.
CHRISTINE NEMACHECK: All right. Thank you Megan for taking the time to do this as well. So in terms of the hot take, I think the big issues before us are the sets of abortion cases that are making their way through the courts, the Mississippi case being the most pressing in that it has been fully argued before the Supreme Court but sort of pending. And certainly another case that is important in terms of how we think about the question of abortion and a woman's right to terminate a pregnancy is the case out of Texas, which is actually even more restrictive.
The law that's at issue is more restrictive than the one in Mississippi, but they are both quite restrictive on a woman's right to terminate a pregnancy. And so I think people have been saying for probably coming on 30 years now that, oh, Roe could be overturned this term, and I think it is more true now than it has ever been. Obviously it hasn't been overturned yet and it may not be this term, but the probability of it is certainly I think at its highest level since Roe was decided.
MEGAN CISTULLI: Thank you Dr. Nemacheck to give us that hot take. And now just to give our viewers a little bit of context around Roe v Wade, why did that particular decision, why is that decision at the centerpiece of women's rights today in the discussion around women's rights?
CHRISTINE NEMACHECK: So Roe greatly changed the landscape for women and particularly concerning family planning and associated with that what their futures looked like. In Roe v. Wade, the idea that it was within a woman's right to privacy to determine what happened with her own body was seen as an incredibly important step for women to be able to make that decision in consultation with their physicians, which is how Roe is actually written.
So the idea of Roe-- and actually in reading it, one thing that's very different as we go through time is in Roe the focus is on a woman's doctor and her and the woman, and there's actually very little-- very little is written about potential life as we talk about it today. And over time what's happened is in the cases that are in the line of precedent with Roe, the focus shifts more to sort of the state's interest in either-- depends on how the state frames it. The state-- some states frame it as life, as the life of the unborn child, other states frame it as an interest in the potential for life of a fetus.
And so the terms-- everything about Roe v. Wade has become very politicized. So even choosing to call a gestational child, right? Choosing to call a child, or use the name child or fetus is a very important part of the pro-life or the pro-choice movements.
And I think that Roe v. Wade was also initially thought to be non-controversial. So when Roe first came to the court, there was not a full makeup. They were down two justices on the court, and they weren't hearing controversial cases. And they heard Roe because they didn't think it was going to be controversial. And it, of course, in the writing of it, they decided they should have-- after they'd heard arguments, they decided they should have a full complement of the court. So it came back to the court once there was nine justices.
But initially the law was likely to be struck down because it was vague. That is it wasn't clear. It would have sort of an effect-- a chilling effect is usually how it's framed-- on physicians. And so when it comes back, however, the decision is quite different, right? And it really sets up this trimester framework. But within that trimester framework in that first trimester, the first three months of pregnancy, Roe says this is really a decision for a woman and her physician to make and the state's interest grows in terms of protecting the health of the woman. So with the concern-- the idea being that later term as you move through a pregnancy, the abortion process itself, the procedure becomes more dangerous for the woman, but then and also finally in the third trimester looking at sort of this idea of potential life and the state's interest in that.
MEGAN CISTULLI: So you mention Roe in the trimester framework, could you touch a little bit about on Casey, Planned Parenthood versus Casey, and then how that changed the trimester framework?
CHRISTINE NEMACHECK: Absolutely, absolutely. So Roe was decided in 1973. Casey comes along in 1992. And Casey is coming in the wake of President Reagan's appointments to the court, which he was making appointments with an eye toward reversing Roe verses Wade. And that was another case where many thought, you know, some hopefully and some sort of regretfully, you had the different sides in this debate, thought that it might well result in overturning Roe.
It did not, and it is a really interesting opinion in that the main opinion in the case was co-written by Justices O'Connor, Kennedy, and Souter, who was still on the court then. He retired longer ago, so viewers might be less familiar with him. But the three of them, who were all Republican appointees to the court, wrote together to essentially save the basic Roe framework. And by that I mean, save the idea-- it struck down a Pennsylvania statute, particularly with respect to what they saw as an undue burden on a woman's right to choose.
It upheld-- so the statute that was in question actually had several provisions, but one of them was spousal notification, and the court said that poses an undue burden on the woman. Other things were 24-hour waiting periods and a parental notification with judicial bypass. But it was a really important case in terms of upholding the basic premise of Roe that the right to privacy extends to a woman's right to make decisions about her own bodily integrity.
And so what shifts is rather than a trimester framework that's a pretty strict in the first three months. This can happen the first three months and the last three months, right? Instead of moving around in three month increments, what O'Connor, Kennedy, and Souter write is that what is important is the question of viability.
By shifting to viability now, you're really looking at the development of the fetus, right? It all depends sort of what kind of restrictions can be imposed depend on that point of viability, which up until these current series of laws has been thought to be somewhere 20 to 24 weeks. And so most states when they impose severe restrictions on abortion, do so after the point of viability and that's typically been set between 20 and 24 weeks.
The Mississippi law imposes outright-- merely an outright ban on abortion at 15 weeks. And that's 15 weeks from the date of the woman's last period. Many women will not know that they are pregnant within that time frame. And that's the concern that a lot of women have about this case is that it may very well be problematic for women who don't initially realize that they're pregnant and end up then being greatly restricted in terms of their options.
But this point of viability, part of the reason for that is that the court recognizes the medical advancements that have happened since Roe, right? So case is in 1992, Roe was in 1973. So you're looking at almost 20 years of development. And, of course, since that time, one of the arguments that's currently at issue as well have as more and more babies have been able to survive outside the womb, right? Through early deliveries, unplanned early deliveries, and that sort of thing, the idea of whether or not that point of viability is actually moving closer, right? Away from 20 weeks, closer to some other point is part of what's at play here.
But I think, particularly given the states in which these cases are coming from, part of the issue is simply an effort to restrict abortion access as well.
MEGAN CISTULLI: So it's interesting you talked about privacy and abortion access. So do you think it's problematic that the court's jurisprudence surrounding abortion is rooted in bodily autonomy and privacy rather than access to health care and gender equality?
CHRISTINE NEMACHECK: I don't so much think it's constitutionally problematic. I do think that had the court written a decision in Roe that was much more about a woman's access to health care and kept it focused more on that question as opposed to this right to privacy, which has in itself been controversial, right?
So it's important to think-- so Roe is not just out there on its own under this right to privacy, precedent and language, instead that comes from a series of cases that had to do with birth control, access to birth control, being given birth control as a married couple, and then for single women to have access to birth control, and so forth.
And so it was a natural-- there was a natural connection, right? Between Roe and these early privacy cases having to do with family planning that also recognize the sanctity of marriage and the ability of a married couple to plan their families, and then the ability of a single woman to plan a family and so forth. So it certainly is clear why the court used privacy in Roe. But there are justices-- there were justices at the time and there are justices more of them today who say there is not a constitutional right to privacy, particularly as it has developed in this line of cases.
And there's also been an argument that this shouldn't have been decided along privacy lines. It should have been decided along equal protection lines, right? Because this is something that affects only women and you're looking at-- I mean, if you're tying it to the ability to sort of plan for your life and you're working in your career and so forth, then there is an argument that there's an equal protection issue by restricting access to abortion.
MEGAN CISTULLI: So you mention two specific cases. The Mississippi case, it's pending before the court. And then the recent Texas ruling that dramatically restricted abortion in that state. So as a result of that one ruling and then the pending one right now before the court, what do you foresee happening? And then also attached on that question, what would happen if Roe verses Wade were to be revisited and overturned?
CHRISTINE NEMACHECK: Yeah. So the one case, the Dobbs versus Jackson, which is the Mississippi case, has undergone all of the briefing. So this is a case that has been on the court's regular docket to be heard this term. So what that means is it went through the process of being litigated at the lower courts and then appealed to the US Supreme Court, and then the Supreme Court heard oral arguments on it-- and actually it spent two hours, which is about twice as long as the court usually spends on a case-- and heard from the parties, as well as some particularly important amici who had filed briefs in the case. And so now we're waiting for a decision on it. But I think justices often sort of tip their hats during oral arguments in terms of the questions they asked. And in terms of the questions they asked, many folks who listen to these things, including myself, think that there are probably five votes to uphold the Mississippi law. Personally, I will be-- it's always dangerous to predict these things. But I would be surprised if they struck down the law. I think that they are in all likelihood, the votes are there to uphold it. The question becomes whether they uphold it and strike down Roe in the process. Or if they uphold it saying we're going to leave Roe alone because of the importance of a norm called stare decisis, which I'll just explain in just a minute. But they'll leave it alone. But they'll say this doesn't violate the basic tenets of Roe and Casey.
For the court to actually overturn a prior ruling, there usually has to be a significant finding that the ruling is bad law and that it doesn't work. That it is not consistent with the court's general understanding and jurisprudential rulings in that area. And certainly there are members of the court who I think feel that's true and would say Roe should be overturned. Whether there are five votes for that, I'm not as sure, particularly depending on what Justice Roberts does.
Chief Justice Roberts, I think has an interest-- I don't think, I know. He has an interest in the integrity of the court, right? And Chief Justice Roberts is obviously concerned about whether people will see the court as being political if they decide to overturn Roe verses Wade. So it could be that the court-- if the justices who want to uphold the law are amenable to chief-- what I suspect Chief Justice Roberts will be doing, is they could go ahead and uphold the law and keep the basic premise of Roe and Casey intact. Based on the Texas statute, I think that casts more doubt on whether the court will be willing to do that. So this is a statute referred to as SB 6 coming out of Texas-- or SB 8, I'm sorry. It's SB 8. And it's a ban at six weeks. So it's much stricter than the Mississippi law. And the questions that the court has taken so far have come in terms of whether or not the law should be able to be enforced while there is litigation going on about its constitutionality.
And typically what the court does is if a law is-- if the justices, the majority of the justices think that there's a good argument that the law is unconstitutional, typically they will enjoin it from being enforced until the court can deal with it in full argument. In this case, the court did not do that. They also made a decision even more recently about what court it should be returned to in terms of hearing, and they decided it should go back to the circuit court level, and some folks, some judicial scholars see that as even a greater sort of signal that the court thinks that what Texas is doing is permissible. Particularly with respect to the Texas statute, Chief Justice Roberts has signaled through a--he joined in a decision in part and dissented in part.
So he was not with the five more conservative justices about whether-- about the point at which the case should be returned to the lower courts. And Chief Justice Roberts signaled, look, this is a problem that in and of itself right now Texas is acting in opposition to good precedent. And if this was happening a year from now and Roe had been overturned, what Roberts is saying would not apply.
But because Roe is still good law right now regardless of what's going to happen in this case, there are many who argue that Texas is acting-- is basically nullifying constitutional law, US constitutional law, and they're not allowed to do that. And this does bring in the basics of the court's role in the federal court and in terms of the US Supreme Court and the states in terms of what their rulings mean and the degree to which states must abide by rulings having to do with the US Constitution.
And there's been some murmuring from other states saying, well, if Texas can do this about the law about abortion, then we should also be able to do things like ignore the Second Amendment cases that the court has decided on that restrict the laws that a state could pass on gun legislation and instead-- in fact, I think your governor in California has gone on the record saying we should now use this as a way to get greater gun legislation.
And so it does sort of open up a can of worms in terms of the implications just for-- obviously the issue of abortion, but even greater issues of the court's authority in our separation of power system. So the last thing I'll say-- I know we're probably running a little short on time. But in terms of what happens if Roe is overturned, if the basic tenets of Roe and Casey were overturned, then what would happen is it would be entirely up to the states as to whether or not they provided access to abortions.
And if they wanted to restrict access at any point in a pregnancy, and that could be an outright ban, they could do so. It doesn't mean that every state will do that. In all likelihood, there are states that will not. But folks who closely study sort of the state legislation predict that somewhere between-- that there are-- I think it's 21 states that have what are called trigger laws. That if Roe goes into effect, they automatically ban abortion. I'm sorry. If Roe is overturned, they automatically ban abortion.
And then there are another five states or so where they suspect they will develop, very quickly enact laws that will also ban abortion. And I think one thing that is really important in this whole scheme that doesn't get talked about as much is what are the implications for women? And just what are the real world implications of this?
And I think that the real world implications are really great and that there are some women who regardless of what happens with Roe-- and in the case in Jackson versus Dobbs and in the Texas case once it works its way up to the Supreme Court, some women will likely maintain access to abortion because they can afford to leave a state if they live in a state that does not allow it. They can afford to leave the state and to go to another state where they can get an abortion and maintain that right. It's more burdensome under Casey. You know, if Casey still exist, it would be clear that this would be problematic. But what's going to happen is women who cannot afford to do that are going to have their rights even more limited.
I think what's particularly concerning about that fact is that the states in which we expect that abortion bans would be enacted or would automatically be triggered, many of those states are the same states that have less secure social safety nets and that can be a problem. Obviously if you're barring a woman who is terminating a pregnancy because she doesn't feel that she can provide for a child, that's going to create additional strain, or at least has the potential to create additional strain on the social safety net that exists.
And in that way, you've really, you know, there are I think some real equity concerns about just the dynamics that result from the court's decisions in this area. Yeah. So that's something that I think is important for us to think about.
MEGAN CISTULLI: Dr. Nemacheck, I think you brought up two really important points here. First, the point about the court's legitimacy and power, and what will happen after these rulings and will states still abide by the Constitution? And what will happen after these rulings? And then second to that, and I could argue more importantly, the laws in practice. So they're in theory, we can talk about what could potentially happen and things like that.
But in practice, what are these women going to have to go through, especially those women who don't have equal access to health care? And then as you mentioned, it becomes a concern of equity in terms of access to health care. And with that note, I think we will end here. Dr. Nemacheck, thank you so much for joining us today and lending me your expertise.
CHRISTINE NEMACHECK: Thank you Megan for the great questions and follow up. Really wonderful talking to you.