January 18, 2024 • 45 mins
Since long before Roe v Wade enshrined a federal right to choose in 1973, abortion has been one of the most contentious issues in American life. On June 24, 2022, the Supreme Court overturned Roe with their decision in Dobbs v Jackson Women’s Health Organization, marking a new peak in the political energy and emotion surrounding abortion. Katie’s guest today, New York Times journalist Jodi Kantor (who won a Pulitzer for her Me Too reporting), has been behind some of the most exhaustively sourced and in-depth reporting on just how Dobbs unfolded.
As Jodi tells us, in many ways, SCOTUS’ Dobb’s decision was shocking. The case started as a long-shot ban on abortions after 15-weeks in Mississippi. But a series of events made it one of the most monumental in American history: an even more controversial case from Texas coming along at the same time, Justice Ginsberg’s death, and an unprecedented leak of the decision in Dobbs that some feel affected Justices’ ability to deliberate fully. It’s easy to imagine this going differently if even one of those things changed.
Roe’s reversal could be interpreted as the triumphant fruition of 50 years of conservative efforts or as an issue that could swing voters to liberal candidates; there’s evidence for both. Entering an election year, the transparency Jodi brings to one of our most hallowed institutions–one that may face serious tests this year–is unmissable.
See omnystudio.com/listener for privacy information.
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Episode Transcript
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Speaker 1 (00:05):
Hi everyone. I'm Katie Couric and this is next question.
Speaker 2 (00:14):
My name is Jennifer Adkins. I am from Caldwell, Idaho,
and in early twenty twenty three, we discovered that we
were pregnant with our second child, and at our twelve
week appointment, we got the devastating news that our fetus
was not viable, that the baby had Turner syndrome, which
(00:35):
means she was missing an X chromosome, and that not
only was she not likely to survive the pregnancy, but
that I was at risk of developing life threatening complications
on top of that. Because we live in Idaho and
this was at a time after Roe versus Wade was overturned,
(00:56):
we were unable to terminate the pregnancy in the state
of Idaho, and our physicians were unable to refer us
out of state, so we were forced to find that
appointment on our own and find a clinic willing to
do the procedure and travel out of state in order
to terminate our very wanted but not viable pregnancy. So
(01:20):
we went to Portland, and even though they provided the
best possible care that they possibly could, and they were
lovely and they took excellent care of us. It's still
hard to not be surrounded by the people that you
love and trust and care about and that love you
and care about you, and to meet all new providers,
(01:42):
a whole new doctor nurse team, and have to go
through this alone with strangers. Losing a child is devastating
for any family and to put that out for the
world to kind of scrutinize and make judgment on and
you know, say mean things about us. But we knew
(02:03):
it was also necessary because we knew we had the
capability to do it, and there are.
Speaker 3 (02:08):
So many people that don't.
Speaker 2 (02:09):
And if we can help use our voice to help
protect those people and to protect future families from this
happening to them, that's what we want to do.
Speaker 3 (02:22):
My name is Samantha Casiano.
Speaker 4 (02:23):
I'm twenty nine years old and I'm originally from Houston, Texas.
When I became pregnant, this was not my first baby.
This is actually my fifth child. When I went in
for my twenty week scant, you know, they pick up
your shirt, they rub the gel on your belly, and
everything goes well. We're having a conversation and then all
of a sudden, it goes quiet. They go on to
tell me that they were sorry to tell me, but
(02:45):
my daughter has been diagnosed with pennaceph lee, which means
that my daughter'skull is not fully developed and her brain
is not fully developed.
Speaker 3 (02:54):
And I felt like this has to be a dream,
this is not right, with no way, and I immediately.
Speaker 4 (03:02):
Just start to cry. After I spoke to my doctor,
I just kind of thought, what do I do? What
can I do? Like, what options do I have? My
doctor just told me I don't have any options after
be pregnant.
Speaker 3 (03:13):
There has to be something. And afterwards I go on to.
Speaker 4 (03:18):
See if I can maybe go out of state, but
the cost was crazy and childcare and I work, my
husband works. It just didn't work for us, which is
sad because you know, you would think in your hometown
you'd be able to get the healthcare that you need,
and that wasn't there for us. And after I gave birth,
(03:38):
she was with us for four hours and when I
told you she was grasping for air, she was just
just like using her whole mouth was open and she
was grasping for air, and they gave her morphine, and
that hurt even more because you know, to see your
little baby get morphine MORPHINEUS. It's morphine.
Speaker 3 (03:56):
So it was heartbreaking.
Speaker 4 (04:00):
At the very beginning, I wanted to be anonymous, and
that changed as soon as.
Speaker 3 (04:04):
I met my daughter and saw how she suffered.
Speaker 4 (04:08):
I am going to do whatever I can to make
sure that no mother, no other baby has to go
through this ever again. My daughter died in her father's hands,
and it took him an emotional roller coaster to have
to go through that no family should have to go
through that.
Speaker 1 (04:30):
This is what it was like for these women who
tried to get an abortion last year. How did we
get here? This month marks fifty one years since Roe v.
Wade enshrined the federal right to abortion. In twenty twenty two,
as we all know, that right was abolished by the
US Supreme Court. The ruling, driven by Justice Samuel Alito,
(04:54):
took away the constitutional right to choose to have an
abortion and gave that authority to the people and their
elected representatives. Now, doctors are afraid, and as we just heard,
the consequences for women looking to terminate a pregnancy has
often been herowing. Today, New York Times Pulitzer Prize winning
(05:17):
investigative reporter Jody Canter explains what was really going on
inside the Supreme Court when Roe was overturned. Jody is
a top notch reporter responsible for breaking many me too
stories alongside her colleague Megan Tuey. Now she's teamed up
with another colleague, Adam Liptak, and the result is an
(05:39):
astonishing feat of meticulously sourced reporting with surprising details. Here's
my conversation with Jody Canter. Jody, I am so thrilled
to have you on the podcast. You are such an intrepid,
excellent reporter, and your piece on how the Supreme Court
(06:00):
overturned ro V Wade was I think a masterclass in reporting.
First and foremost, How did you get the idea to
really dig into this because it was no easy task.
Speaker 5 (06:14):
Well, thank you so much, Katie. Adam Liptak and I
just wanted to understand what had really happened. This is
one of the most consequential decisions of our time. You know,
you're talking today about the effect on women's lives, on
whether or not they have children, but also it's transformed
who's elected in this country, how medicine is practiced, and
(06:36):
the court is pretty opaque. You know, on the one hand,
they have oral arguments, the issue written opinions, so we
can understand some of their thinking, but the question of
how is the law, and especially something this epic really
decided is often a mystery, And in fact their papers
(06:56):
stay sealed for so long that the written records may
not come out until some of us are dead. So
Adam and I plunged in and just ask the basic questions.
You know, how do the nin injustices go about doing
something so big?
Speaker 1 (07:10):
How challenging was that? Jody? I mean, I can't imagine
being tasked with really unraveling every aspect of this decision.
So how did you go about reporting this? And how
many foyas did you have to do? It's a great question.
Speaker 5 (07:27):
We did zero foyas because the Supreme Court is exempt
from foya. Foya, of course, is the usual means by
which the public, including journalists, can find out what's what
the government is doing.
Speaker 1 (07:37):
Why don't you explain what foyas are?
Speaker 5 (07:39):
It's basically a written request to a government entity saying
will you please show us these emails or these records
because the public has a right to know. The Supreme
Court is exempt from that. So there were some public
records that we could rely on, and every case is
a story, right, litigation is an narrative, and the Dobbs
(08:01):
litigation is especially interesting because, Katie, I'm going to say
it a little impolitely, this case was a nothing burger
when it first emerged. It was this Mississippi law that
was blatantly unconstitutional when it was passed because it contradicted Roe,
it didn't look like it had a chance, especially because
(08:21):
Justice Ginsburg was still on the court.
Speaker 1 (08:24):
Tell us a little more about the Mississippi law and
what it stated.
Speaker 5 (08:28):
So basically, what Mississippi wanted to do is they wanted
to permit women to have abortions only before fifteen weeks.
So it doesn't sound that controversial on the face of it, right,
because most abortions do occur before fifteen weeks. But the
reason why it was so provocative is that the Supreme
(08:51):
Court for many, many, many years had held that you
can't restrict abortion before viability, before say twenty three weeks,
and that had been secret for a long time. So
really what they were saying was, we want to change
the rules of when abortion restrictions are permitted. So two
(09:13):
federal courts said no, said you can't do this, and
they made a last ditch appeal to the Supreme Court
when Justice Ginsburg was still alive and it looked like
they had no chance, and then Justice Skinsburg died and
everything changed.
Speaker 1 (09:28):
In fact, that was a huge turning point for really
the ethos of the Court. Before we get into that,
I just wanted to ask you a couple of other
quick questions about the actual reporting. You had a difficult
time finding sources because everything is so tightly held there.
(09:49):
It's like a secret society in a way, right, Jody,
And anyone who kind of shares information is shun and
if it's discovered who they are. Right, Can you talk
about kind of the culture of the Supreme Court, because
it's so fascinating.
Speaker 5 (10:07):
It's correct to work there is pretty much to take
a vow of silence. So it's a pretty dramatic situation
because no matter who you are at the Court, if
you have access to the deliberative process, you are confronting
some of the hardest issues in American life. That's what
the Court is doing right now. They're taking on all
(10:27):
of these very controversial, hot button topics, and yet you
can't tell anybody what you've seen. And also there's no
accountability for these nine people, they have lifetime appointments, and
nobody is anybody else's boss there among the justices. Meaning
we look at Chief Justice John Roberts and he looks
(10:48):
like he's in charge in many ways, but he's really not.
He's really not. He's the administrator of the court and
of the federal courts, but he really doesn't have a
lot of leverage over the other justices. And so then,
to make things even more difficult, Adam and I were
reporting in the shadow of a leak investigation, of course.
Speaker 1 (11:06):
Right, so they were even more paranoid to talk to you, right,
anyone associated with the court.
Speaker 5 (11:12):
It was very difficult. But as you know, that's why
we do. We weren't doing it just for the sake
of breaking open the silence. We were doing it to
try to illuminate the court, to help us understand this
critical institution, and to provide some function of accountability. I mean,
(11:33):
as you know, we've both done this our whole lives.
In journalism, probably the most basic function of journalism in
a democracy is to just keep an eye on elected officials.
It's why in a small town you want a journalist
sitting there at a school board meeting or watching the mayor,
because you want to say, a representative of the people
is independently, not with government support, watching these government officials
(11:58):
to be able to see what they do. And so
in some ways we were just fulfilling that very basic function.
Speaker 1 (12:03):
Getting back to the Mississippi long curious Jody, and this
is a bit of a quick left turn. Has viability
changed with technology? I guess that's one of the questions
if in fact this twenty three week window has been
protected for a long time by the Supreme Court, Has
technology and modern medicine in fact allowed fetuses to live
(12:26):
even if they are less than twenty three weeks old.
I don't even know the answer to that.
Speaker 5 (12:32):
I mean, I'm not a doctor, but I can tell
you that Roe has always been a controversial decision, even
among liberals, and as you know, the fights about abortion
are just epic. And I think there has been some
legal wrangling over whether the viability rule is smart because
viability can change, right, But the I don't think that
(12:53):
was really what was happening with Dobbs. What happened with
Dobbs is that the composition of the court change and
big time. Yeah, I mean often you have a Supreme
Court that's stable for years and years at a time
because of these lifetime appointments. But very quickly, from Justice
Scalia's death in twenty sixteen up until very recently, you're
(13:14):
looking at a court that's been repopulated and mostly with
conservative justices.
Speaker 1 (13:19):
Well, let's pick up with Justice Ruth Bader Ginsberg's death.
She was sort of a firewall in terms of a
case like this, even being heard. She passes away. What happens,
She passes.
Speaker 5 (13:35):
Away just as the justices are about to take their
first preliminary look at Dobbs. And as you know, the
Supreme Court operates in two phases. The first level of
discussion is about whether the justices should take the case
at all. The second level of discussion is if they
take it is actually about deciding the case. So, in
(13:56):
very quick succession, Dobbs goes on the discussion list. Justice
Ginsburg dies with weeks until the twenty twenty presidential election,
in the final days really of President Trump's term. He
replaces Justice Skinsburg with Amy Coney Barrett, who is known
(14:17):
to disagree with abortion. She's basically a favorite of the
anti abortion movement and young and young and shuffled on
the Court in record time, a very quick nomination process.
So she's coming onto the scene even as President Trump
is being shuffled out of the White House and then.
Speaker 1 (14:39):
The Court they're trying to shuffle him out.
Speaker 5 (14:41):
Of the well exactly as he loses the presidential election,
is a better way to say it. And so the
Court is sitting there with this very hot button case.
And then it's in January of twenty twenty one, in fact,
two days after the January sixth insurrection, that the justices
have the first conversation about whether to take Dobs or not.
(15:04):
And this very new justice, Justice Barrett, has to decide
what to.
Speaker 1 (15:07):
Do, and she doesn't want to take it. She's very
hesitant at first. What we were able to report is
that she initially votes to grant that means to give
it the green light, but she voices some objections, some concerns,
you know, and she says, I'm really new here.
Speaker 5 (15:22):
I just got here. The composition of the court just changed.
That will change. And she says at that point Justice
Alito and a few of the others want to hear
the case very soon. They want to hear it that
term meaning a year before it was actually held, so
they are ready to move with those justices with this
colossal president. Justice as Alito, Thomas, and Gorsich all wanted
(15:46):
to hear it very quickly, and she says, if you
go and do that, I'm going to change my grant
vote to a deny. And then weeks later that's what
she actually does, she votes against taking the case. So
it's important to remember when we look at it. To
go back to your original question, Katie, how did this happen?
(16:07):
One of the key facts I'm going to tell you
is that this case was greenlighted by a minority.
Speaker 1 (16:13):
Of the court.
Speaker 5 (16:14):
Two conservative justices did not want to take it, Justice
Roberts and Justice Barrett, and it was all men who
greenlighted this case, and they overrode the objections of every
woman on the court, conservative and liberal.
Speaker 1 (16:31):
What was Justice Kavanaugh's role in this, because he was
a bit of a fly in the ointment for the
conservative justices, right, Well, or is that overstating it?
Speaker 5 (16:42):
Well, I think it's open to interpretation. Let's see what
happened and then we can interpret it. So they're sitting
there on January eighth, two days after this rupture in
American democracy, they have to decide whether to take the
case or not. It seems like they have the votes
to go ahead. But then at a subsequent meeting soon afterwards,
(17:03):
Justice Kavanaugh says, we should relist this case.
Speaker 1 (17:07):
What does that mean?
Speaker 5 (17:08):
It means we should just punt or pretend that we're
punting because we have the votes to go ahead, but
the time, like Justice Barrett has already said, the timing
wasn't right for her. So what he's suggesting is just
keep it on like a TBD list in.
Speaker 1 (17:26):
The double put it on the docket if you will
keep it on the docket because as on me or
don't say that we're going ahead even though we privately
know that we have the votes to grant.
Speaker 5 (17:38):
And he says, this will allow us to watch cases
play out in the lower courts. And so that's what happens,
and that also opens, you know, a kind of window
of persuasion. Some of the justices who don't want to
take it go to work on Justice Barrett and Justice Kavanaugh,
and as we know, Justice Barrett changes her vote. So
(17:59):
what was he really doing there? Was he saying? I
think the most obvious interpretation is that he really wanted
to take this case. He was in favor of it,
but he wanted more time. He wanted it to look
as if they were moving more slowly than they really were.
I guess there's another you know, there's another possible interpretation,
(18:20):
but it's hard to know what he really thought. I
guess there's an interpretation also that he was buying time. Well,
that makes sense to me now, you know, the reporting
indicates that he wanted to go ahead. But we can't
read the Justice's minds. We don't know what they were thinking,
and it's all a game of poker inside that building.
Speaker 1 (18:44):
We have to take a quick break, but when we
come back, we'll dig deeper into the dynamics of the
court and the details of two cases that affected the
Justice's decision to reconsider Row. If you want to get
smarter every morning with a breakdown of the news and
fascinating takes on health and wellness and pop culture, sign
(19:08):
up for our daily newsletter Wake Up Call by going
to Katiecouric dot com. Is Justice Alito sam Alito kind
of the leader of this whole movement to overturn Roe v. Wade,
(19:32):
Because I know Neil Gorsich decided he agreed with him
only ten minutes after right, talk about the timing and
how those two were really important figures and all this.
Speaker 5 (19:43):
So Justice Alito absolutely really propelled the court. He's one
of nine justices. But when you look at the role
he played first in rescheduling the case in the fall
of twenty twenty, he wrote the majority opinion, it appears
that he preservedulated it. We've seen evidence of some of
the arguments he was making internally, and if you read
(20:06):
his opinion, it's clear that he really wanted this to happen.
So it's interesting he first shared his famous draft, the
draft that made the law. This is also the draft
that leaked in February of twenty twenty two. This is
now the second phase, the phase where they're actually deciding
the case. And he shared it with the full court
(20:28):
one morning, and Justice Gorsuch did an interesting thing, which
is he said, yes, I'm signing on to this, I've
no changes, ten minutes after Justice Alito sent it around
and it was a ninety eight page opinion. So does
that mean he never even read the opinion before saying yes,
I don't think so, we don't think so.
Speaker 1 (20:50):
So were they in kahoots?
Speaker 5 (20:51):
Well, it appeared that Justice Alito pre circulated the opinion
among the majority before sharing it with the full which
is not that unusual a thing to do. When you
do that, you're trying to get buy in from the
other justices. So he shared it with we think, we
don't know exactly potentially, but it appears that he shared
(21:14):
it with Justices Gorsage, Barrett at Kavanaugh, Thomas. Let's talk
about the period of time between when the court agreed
to hear the case and when they made the decision.
Can you take people through sort of what happened, because
I think it still is such a mystery for people
how the court operates.
Speaker 1 (21:33):
Sure.
Speaker 5 (21:34):
Well, two, there's the thing that sort of was like
expected and routine, and then there was a real wild
card in there as well. So the routine thing is that,
you know, okay, the justices are taking the case. There
are months and months of planning and build up. Both
sides are filing briefs. They're amicus briefs being filed by
(21:56):
people who you know, agree with one side or the other.
Speaker 1 (22:00):
That's like friend of the court friends.
Speaker 5 (22:01):
Yeah, exactly, they're saying the court must do this. You know,
for this reason, the lawyers are preparing their oral arguments
because they're about to argue a historic case. So all
of that is proceeding when boom, this Texas case comes along.
That is extremely unorthodox. Here you have Mississippi trying to
(22:23):
overturn Row. And by the way, during this time, Mississippi
expanded its question. Its first brief early in the process
said it's not necessary for the court to overturn Row
to go ahead with this fifteen week rule by Mississippi.
During this time period that we're talking about now they say, actually,
we're trying to overturn all of Row. And this is
(22:46):
kind of an unorthodox thing to do because they're changing
the question. And Adam and I point out that there
are other cases where the court is actually rejected the
entire thing by saying to the lawyers, hey, you changed
the question, it's cool.
Speaker 1 (23:00):
But they didn't.
Speaker 5 (23:01):
They didn't.
Speaker 1 (23:02):
So wait, let me just go back real quickly. They
tried to change it from the fifteen week rule to
what so Mississippi, when they pose the case say we're
just trying to do this fifteen week cut off for abortions.
We are it is not necessary to overturn Row. Then,
during the merits phase, they file another brief saying, Justices,
(23:24):
you've got to go all the way here an overturn row.
It's like they sends to opportunity and expanded their question. Now, normally,
I feel like I'm going on Michael Barbara on you.
Normally you can't do that. You're saying that. A lot
of times if it changes midstream, the justices or the
court will say, no, you can't do that.
Speaker 5 (23:46):
You risk the justices dismissing the case as improvidently granted
if you do that. However, in this case, it's at
the justice's discretion, and in this case they went ahead.
So what about this Texas law? So, even as mississid
be is on its way to turn truro, Texas steps
(24:06):
in with a much more provocative law than Mississippi's. Texas
has what's called a heartbeat bill, banning abortion around the
time you hear a heartbeats, which is six seven weeks.
Speaker 1 (24:21):
Now.
Speaker 5 (24:21):
The funny thing is that a lot of women don't
know they're pregnant. Then you can't even do an abortion
if it's too early. But not only that, the law
has this incredibly unusual structure where regular people, uber drivers,
doctors can be sued for helping to provide the abortion,
(24:41):
and by doing that, the drafters of the law actually
made it immune from review by the federal courts. They
found this kind of loophole that said, the Supreme Court
actually can't rule on whether this law is constitutional or not,
even though this this law it contravenes Row. And so
(25:04):
this case comes to the Supreme Court in an emergency application.
This is totally different than the Court's regular procedures. It's
like a last minute thing. This is the Texas Law.
Two days before the Texas Law is supposed to go
into effect, more or less overturning Row in the second
most populous state in the entire country. Abortion providers in
(25:26):
Texas come to the Supreme Court and say, you've got
to stop this. This is illegal, this is improper. And
the Court becomes kind of frozen over what to do.
And this was part of our reporting as well. It's
this last minute application. It's August thirty first. Four of
the justices, led by Justice Alito, want to go ahead.
Four of the justices, led by Justice Roberts, Chief Justice Roberts,
(25:49):
want to stop it, and Justice Gorsitch doesn't vote in time.
So the Court doesn't make a decision or announce anything
before the law goes into effect, goes into effect, and
then only the next day does the court issue a
decision allowing it to go ahead. Says we're not we're
not intervening.
Speaker 1 (26:10):
And by the way, the Texas law would even make
it a crime to Let's say I had a friend
who needed an abortion, and we both lived in Texas,
and I drove her to a nearby state where she
could terminate her pregnancy. I could be charged with criminal activity. Right.
Speaker 5 (26:30):
It's not like you're not going to be put in
jail for, you know, a criminal offense, but you can
be subject to a lawsuit. And so there is this
feeling that like, wait a second, things are moving even
more quickly than people even realized.
Speaker 1 (26:48):
And more severely and maybe more right.
Speaker 5 (26:50):
And also it doesn't look good for Roe at that point.
You know, people are starting to say, if the court
is allowing this Texas law to go ahead, they're not
going to stop Mississippi.
Speaker 1 (27:01):
Let's talk about the leak, because that is a big
part of your reporting. Yeah, who do you think leaked
the decision?
Speaker 5 (27:08):
And why I you know, I don't know, and I
can't tell you it's going to be it's going to
be interesting to see Kiti, whether history ever figures it out,
or whether anybody ever comes forward absent photographic evidence, it
is really really tough to say. I think the question
that is almost more interesting is, and this is what
(27:30):
Politico never told us, what was the motive? What was
the motive? Because you know, there are two sides here,
right There are people who were outraged that the right
to abortion was overturned, and there are people who saw
it as a must, a necessity, the crowning achievement of
the conservative legal movement. And so there are essentially two theories.
(27:54):
There's this theory that a liberal did it to raise
alarm bells about what was about to happen, and then
there's a theory that a conservative did it in order
to make it a runaway train, in order to help
lock in the votes and prevent a compromise. And one
of our discoveries in our reporting was that the compromise
(28:14):
efforts underway at the court were more extensive than anybody knew.
Speaker 1 (28:19):
Let's talk about that, because I haven't mentioned just a
Briar's role in all this exactly, and tell us what
was going on behind the scenes.
Speaker 5 (28:28):
Well, listen, I don't know how people listening and hearing
this today would feel about this. But what if the
court had stopped at fifteen weeks? What if we were
living in a reality today that said you can have
an abortion up until fifteen weeks. That's what Chief Justice
Roberts wanted to do. I mean, he basically said, this
is the rule in a lot of other democracies, you know,
(28:53):
he wanted His position was that he wanted to allow
Mississippi to go forward with its law, but essentially stop
there at least for the time being. And part of
what's interesting is that it turns out that Justice Bryer,
a lifelong liberal, was considering joining that position, which only
(29:14):
would have had symbolic value. It wouldn't have been legally,
it wouldn't have changed the legal outcome. But what would
have changed it is that, because of the Court's kind
of unusual mass, the Chief Justice only needed one vote
from the conservative side to make that the law. So
if he had been able to win over Justice Barrett
(29:34):
or Justice Kavanaugh, say, we would be living with the
fifteen week rule today and Roe would still be partially intact.
It would be sort of smaller and more limited, but
it would still exist.
Speaker 1 (29:48):
I'm curious, and I know you're not a doctor, neither
am I of course, but don't most women get abortions
in that time tame? Anyway, I think that's absolutely so
much misinformation about quote unk quote late term or even worse,
partial birth abortions that compromise. So few abortions that take
(30:11):
place in this country, and when they do, it's usually
because the life of the mother is in danger and
there's something seriously wrong with the fetus. Yeah, and so
that would have precluded all these states from enacting much
more draconian laws.
Speaker 5 (30:26):
Correct, Yeah, I think the states would have continued to
challenge a fifteen week rule. You know, there's one theory
that says that a fifteen week rule was only a
gateway to a ten week rule, which would have been
an eight week rule, which would have been a six
week rule, and then you have no.
Speaker 1 (30:38):
Right then abortion after that law. Right exactly, But maybe not.
I mean, maybe that would have play came maybe or not.
It's so hard to talk in hypotheticals. And also, the
abortion debates in this country are so thunderous that it
seems like wishful thinking that you know, after all these years,
(31:01):
this country could just you know, say, okay, fifteen weeks.
You know, the referee is blowing the whistle, like you know,
the this is done and we're moving on to the
next issue.
Speaker 5 (31:11):
But we don't know. I mean, look at what's changed
with politics in this country since Roe was overturned. You
know what would have been the political after effect of
a fifteen week rule. We can't you know, we can't know.
Speaker 1 (31:26):
Talk about the leak and how that basically nullified any
attempts at the compromise that Justice Roberts and Brier were
considering this fifteen week ban.
Speaker 5 (31:39):
So the reason why these votes are secret is so
justices can change their minds. It's to preserve their privacy.
I mean, it's the deliberative process is supposed to have
a sanctity to it because, no matter our political backgrounds,
we really want the justices to be engaged in thoughtful
contemplation and debate and to really do what they feel
(32:03):
is right. And sometimes that can mean changing your mind
or shifting your position. So this was a really grave
breach for that reason. You know, the Court has called
it an assault on the deliberative process, and I think
that's right. Because it wasn't just the outcome that was leaked.
It wasn't like somebody said, Katie Rowe is going to
(32:24):
be overturned. The entire opinion was leaked. I mean, that
is so unthinkable. And what happened is that it rendered
the efforts to compromise kind of hopeless. Now, who knows
how much hope they had to begin with. We really
can't say, because you know, it would require a kind
(32:46):
of like truth serum. I think for one of the
justices to know every thought that was going through their minds.
But we do know that some of the justices were
trying to persuade others and that just didn't work once
everything became public.
Speaker 1 (33:00):
Why, I mean, why for.
Speaker 5 (33:01):
A justice to change their minds after the votes and
the opinion had become public. It would have looked like
they were bowing to public pressure, which they never want
to look like they're doing.
Speaker 1 (33:14):
So the decision had them pretty much boxed into their view. Right,
I would say, it's solidified what already seemed to be happening.
So this term, the Supreme Court is going to decide
whether to limit access to a key abortion drug. What
do you think is going to happen.
Speaker 5 (33:35):
I can't tell you exactly, but it's very dramatic, and
I'm glad you mentioned it, because what we have to
understand is that this is now the most common method
of abortion in this country. Our old image of you know,
going to a clinic and priasurgery is somewhat.
Speaker 1 (33:51):
Is antiquated at this point, although I think it's only
it still happens, but I think more than fifty percent
of abortion use a pill that will terminate the pregnancy.
Speaker 5 (34:03):
And so now this question is back with the justices,
which is not what they said would happen in his
majority opinion from Dobbs, just as Alito says, we're throwing
this back to the States. The people are going to
decide we are washing our hands of abortion dissians. Well,
I think they, I mean, they chose to take the
(34:23):
case because I think they essentially have to. You know,
this is really controversial. There's a lot of disagreement. So
basically the Supreme Court has to decide whether these really
strict restrictions on these abortion drugs that were put in
place by a lower court are going to stand or not.
(34:44):
And remember that this is a different set of legal issues.
This is about the FDA and what drugs were approved.
So it's you know, the Court said that it was
wanted to get less involved in abortion questions, but it
appears to be getting more involved.
Speaker 1 (35:02):
After this break. Jody's take on what the outcome of
the twenty twenty four presidential election could mean for the
future of the Supreme Court and of course, abortion rights.
(35:25):
I shudder to think about the composition of the Supreme
Court if Donald Trump is re elected, because that means
even more conservative justices. Who is the next to retire, Jody,
and how could his reelection impact the composition of the court.
Speaker 5 (35:50):
You know, it's a really interesting question, in part because
of the very complicated and not straightforward question of what
happened with the first three judges he appointed. President Trump
said that he was going to put in place justices
who would automatically overturn Row. I mean, he did, But
did they do it automatically or not? I don't know.
(36:12):
That's part of why it's so interesting that Justice Barrett
didn't vote to take the case, and in general, they
didn't take his marching orders. Remember that this court reviewed
a lot of election cases in which President Trump wanted
them to stand by the idea that he had really
(36:33):
won the twenty twenty election. They didn't do that. They
rejected his ideas over and over again. And of course
now they're about to face an even more dramatic, arguably
set of election cases. And so he appointed very conservative justices,
but not justices who took his dictates in an edge
(36:54):
to his chagrin. Prom but much to his chagrin, and
on January sixth, he actually gave a speech saying, I
regard these justices as disloyal to me. I fought for them.
He was especially talking about Justice Kavanaugh because of the
sexual misconduct allegations during his nomination. So your question is
a great one, but before we get to that, I
(37:15):
kind of think we need to focus on this earlier
question of b what are the.
Speaker 1 (37:20):
Justices going to do with these elections? Well, says, let's
backtrack and actually talk about that, Jody, because that's certainly
something I wanted to discuss with you, knowing what you
and Adam uncovered about the inner workings of the Supreme Court,
what do you think they are going to do when
they hear in February this Colorado case that, says Donald Trump,
(37:42):
because of Article fourteen, Section three of the Constitution about
dealing with insurrectionists, that he cannot be on the state
ballot for president of the United States. You know, a
lot of people say, if they're the strict constructionists they
claim to be or originalists, right, and they follow the
letter of the law when it comes to the Constitution,
(38:03):
they will agree with Colorado. What's your sense.
Speaker 5 (38:08):
Nobody knows. It's a great question, because it is pretty
clear that January sixth was an insurrection.
Speaker 1 (38:14):
And there's no requirement to be convicted of that.
Speaker 5 (38:17):
Well, so what Adam Adam Leptak has written is that,
of course it's impossible to know, but based on his
reading of the law and his knowledge of the justices,
he's indicated that he thinks it's a little He thinks
the justices may be reluctant to keep a candidate off
(38:39):
the ballot, really just on the principle that it's the
people who are supposed to decide elections. However, it's one
of the other cases, this immunity case, in which President
Trump is.
Speaker 1 (38:51):
If you're president, you're immune to criminal prosecution.
Speaker 5 (38:55):
Adam thinks the justices may not go for that. So
we'll see, We'll we'll say well, we'll see. But for
the first time since Bush v. Gore, it really looks
like a presidential electionist in the justices' hands.
Speaker 1 (39:07):
It's going to be so interesting to watch. And one
last question, Jody, because it really has to do with
the Supreme Court and the lack of transparency or as
you said, the opacity I guess, of the of the
High Court. There have been a lot of questions about
(39:28):
the behavior of one particular Supreme Court justice, and that
is Clarence Thomas. And if he has made too many compromises.
We don't have to get into all the details here,
but gifts and whether or not he's been influenced by
certain outside interests, et cetera, et cetera. What is happening
(39:48):
in terms of making sure the Supreme Court had and
by the way, in public opinion polls, views of the
High Court have declined, right and approval ratings, if you will.
What happening in terms of ensuring that the justices are ethical?
Speaker 5 (40:06):
So there's a new ethics code, but it's soft. On
the one hand, it's a real change, it's a real advance.
They put out something publicly and remember that you know,
part of what is really surprising about the Supreme Court
is that they're actually bound by fewer rules than other
federal judges, which kind of makes no sense because you say,
(40:27):
how could the people with the highest responsibility have a.
Speaker 1 (40:32):
Lost amount of safeguard lower standard?
Speaker 5 (40:34):
That's right, and so there is an ethics code now,
but it lacks an enforcement mechanism. Some of the language
is open to interpretation. It's still basically an honor system
and a voluntary basis. But listen, this is why reporting
on the court is so important, and Pro Publica has
(40:54):
done so much work on this issue at the times
other publications, and I think there's just a renewed feeling
that we have to watch and understand the justices because
they have so much power, and even in our system
of checks and balances, their power is that their power
lacks a lot of the usual checks.
Speaker 1 (41:14):
For people watching or listening to this who believe in
a woman's right to choose, do you see this Ever
sort of turning around. Do you see something akin to
row Ever being reinstated.
Speaker 5 (41:32):
It's a better question for a legal expert, but I
think we're seeing it on the political side. I mean,
look at what happened in Ohio. You know, there were
just massive efforts, you know, to also Kansas. Yeah, exactly.
I mean we're just seeing that. You know, Adam and
I never really talked about politics and he was elected
and ballot referendums and stuff during our reporting because we
(41:55):
were entirely focused on the court. But you could argue that,
you know, would just Alito and his colleagues did succeeded legally,
of course, but members of the Republican Party. I'd be
fascinated to talk to a Republican political official and here
his or her response to our story and what the
(42:18):
court did, because there are some Republicans who feel this
has been a disaster.
Speaker 1 (42:23):
For them right politically, and yet I think it's also
been seen as a huge triumph exactly that took years
and years and years for the anti abortion movement in
this country.
Speaker 5 (42:35):
Yeah, I think that's right.
Speaker 1 (42:38):
So maybe they're reaping what they sewed politically. These Republican officials,
they wrote on the wins of anti abortion quote quote
unquote pro life advocates, and now maybe be careful what
you wish for, because I think it's so extreme and
(42:59):
it's going so ex dream that now there's a backlash
to that whole movement, I think, I hope anyway.
Speaker 5 (43:06):
I think that's part of why it's so important and
fascinating to understand the history, because you say, to yourself, Okay,
look at Chief Justice Roberts's fifteen week compromise. He looked lonely.
It looked like a losing proposition. What would this country
look like if it had prevailed. I don't know. Hard
to say, but we probably wouldn't see the political reaction
(43:26):
we have seen.
Speaker 1 (43:27):
Jody, Thank you so much. Thank you explaining this complicated
topic in such an understandable way. It's so important that
Americans pay attention and understand how government works, so I
hope they'll listen and learn from this.
Speaker 5 (43:43):
Thank you for your great questions, Katie, Thanks for listening.
Speaker 1 (43:57):
Everyone. If you have a question for me, a subject
you want us to cover, or you want to share
your thoughts about how you navigate this crazy world, reach out.
You can leave a short message at six oh nine
five point two five five five, or you can send
me a DM on Instagram. I would love to hear
from you. Next Question is a production of iHeartMedia and
(44:20):
Katie Kuric Media. The executive producers are Me Katie Kuric
and Courtney Ltz. Our supervising producer is Ryan Martx, and
our producers are Adriana Fazzio and Meredith Barnes. Julian Weller
composed our theme music. For more information about today's episode,
or to sign up for my newsletter, wake Up Call,
(44:42):
go to the description in the podcast app, or visit
us at Katiecuric dot com. You can also find me
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podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or
wherever you listen to your favorite shows. Two
Hi everyone. I'm Katie Couric and this is next question.
Speaker 2 (00:14):
My name is Jennifer Adkins. I am from Caldwell, Idaho,
and in early twenty twenty three, we discovered that we
were pregnant with our second child, and at our twelve
week appointment, we got the devastating news that our fetus
was not viable, that the baby had Turner syndrome, which
(00:35):
means she was missing an X chromosome, and that not
only was she not likely to survive the pregnancy, but
that I was at risk of developing life threatening complications
on top of that. Because we live in Idaho and
this was at a time after Roe versus Wade was overturned,
(00:56):
we were unable to terminate the pregnancy in the state
of Idaho, and our physicians were unable to refer us
out of state, so we were forced to find that
appointment on our own and find a clinic willing to
do the procedure and travel out of state in order
to terminate our very wanted but not viable pregnancy. So
(01:20):
we went to Portland, and even though they provided the
best possible care that they possibly could, and they were
lovely and they took excellent care of us. It's still
hard to not be surrounded by the people that you
love and trust and care about and that love you
and care about you, and to meet all new providers,
(01:42):
a whole new doctor nurse team, and have to go
through this alone with strangers. Losing a child is devastating
for any family and to put that out for the
world to kind of scrutinize and make judgment on and
you know, say mean things about us. But we knew
(02:03):
it was also necessary because we knew we had the
capability to do it, and there are.
Speaker 3 (02:08):
So many people that don't.
Speaker 2 (02:09):
And if we can help use our voice to help
protect those people and to protect future families from this
happening to them, that's what we want to do.
Speaker 3 (02:22):
My name is Samantha Casiano.
Speaker 4 (02:23):
I'm twenty nine years old and I'm originally from Houston, Texas.
When I became pregnant, this was not my first baby.
This is actually my fifth child. When I went in
for my twenty week scant, you know, they pick up
your shirt, they rub the gel on your belly, and
everything goes well. We're having a conversation and then all
of a sudden, it goes quiet. They go on to
tell me that they were sorry to tell me, but
(02:45):
my daughter has been diagnosed with pennaceph lee, which means
that my daughter'skull is not fully developed and her brain
is not fully developed.
Speaker 3 (02:54):
And I felt like this has to be a dream,
this is not right, with no way, and I immediately.
Speaker 4 (03:02):
Just start to cry. After I spoke to my doctor,
I just kind of thought, what do I do? What
can I do? Like, what options do I have? My
doctor just told me I don't have any options after
be pregnant.
Speaker 3 (03:13):
There has to be something. And afterwards I go on to.
Speaker 4 (03:18):
See if I can maybe go out of state, but
the cost was crazy and childcare and I work, my
husband works. It just didn't work for us, which is
sad because you know, you would think in your hometown
you'd be able to get the healthcare that you need,
and that wasn't there for us. And after I gave birth,
(03:38):
she was with us for four hours and when I
told you she was grasping for air, she was just
just like using her whole mouth was open and she
was grasping for air, and they gave her morphine, and
that hurt even more because you know, to see your
little baby get morphine MORPHINEUS. It's morphine.
Speaker 3 (03:56):
So it was heartbreaking.
Speaker 4 (04:00):
At the very beginning, I wanted to be anonymous, and
that changed as soon as.
Speaker 3 (04:04):
I met my daughter and saw how she suffered.
Speaker 4 (04:08):
I am going to do whatever I can to make
sure that no mother, no other baby has to go
through this ever again. My daughter died in her father's hands,
and it took him an emotional roller coaster to have
to go through that no family should have to go
through that.
Speaker 1 (04:30):
This is what it was like for these women who
tried to get an abortion last year. How did we
get here? This month marks fifty one years since Roe v.
Wade enshrined the federal right to abortion. In twenty twenty two,
as we all know, that right was abolished by the
US Supreme Court. The ruling, driven by Justice Samuel Alito,
(04:54):
took away the constitutional right to choose to have an
abortion and gave that authority to the people and their
elected representatives. Now, doctors are afraid, and as we just heard,
the consequences for women looking to terminate a pregnancy has
often been herowing. Today, New York Times Pulitzer Prize winning
(05:17):
investigative reporter Jody Canter explains what was really going on
inside the Supreme Court when Roe was overturned. Jody is
a top notch reporter responsible for breaking many me too
stories alongside her colleague Megan Tuey. Now she's teamed up
with another colleague, Adam Liptak, and the result is an
(05:39):
astonishing feat of meticulously sourced reporting with surprising details. Here's
my conversation with Jody Canter. Jody, I am so thrilled
to have you on the podcast. You are such an intrepid,
excellent reporter, and your piece on how the Supreme Court
(06:00):
overturned ro V Wade was I think a masterclass in reporting.
First and foremost, How did you get the idea to
really dig into this because it was no easy task.
Speaker 5 (06:14):
Well, thank you so much, Katie. Adam Liptak and I
just wanted to understand what had really happened. This is
one of the most consequential decisions of our time. You know,
you're talking today about the effect on women's lives, on
whether or not they have children, but also it's transformed
who's elected in this country, how medicine is practiced, and
(06:36):
the court is pretty opaque. You know, on the one hand,
they have oral arguments, the issue written opinions, so we
can understand some of their thinking, but the question of
how is the law, and especially something this epic really
decided is often a mystery, And in fact their papers
(06:56):
stay sealed for so long that the written records may
not come out until some of us are dead. So
Adam and I plunged in and just ask the basic questions.
You know, how do the nin injustices go about doing
something so big?
Speaker 1 (07:10):
How challenging was that? Jody? I mean, I can't imagine
being tasked with really unraveling every aspect of this decision.
So how did you go about reporting this? And how
many foyas did you have to do? It's a great question.
Speaker 5 (07:27):
We did zero foyas because the Supreme Court is exempt
from foya. Foya, of course, is the usual means by
which the public, including journalists, can find out what's what
the government is doing.
Speaker 1 (07:37):
Why don't you explain what foyas are?
Speaker 5 (07:39):
It's basically a written request to a government entity saying
will you please show us these emails or these records
because the public has a right to know. The Supreme
Court is exempt from that. So there were some public
records that we could rely on, and every case is
a story, right, litigation is an narrative, and the Dobbs
(08:01):
litigation is especially interesting because, Katie, I'm going to say
it a little impolitely, this case was a nothing burger
when it first emerged. It was this Mississippi law that
was blatantly unconstitutional when it was passed because it contradicted Roe,
it didn't look like it had a chance, especially because
(08:21):
Justice Ginsburg was still on the court.
Speaker 1 (08:24):
Tell us a little more about the Mississippi law and
what it stated.
Speaker 5 (08:28):
So basically, what Mississippi wanted to do is they wanted
to permit women to have abortions only before fifteen weeks.
So it doesn't sound that controversial on the face of it, right,
because most abortions do occur before fifteen weeks. But the
reason why it was so provocative is that the Supreme
(08:51):
Court for many, many, many years had held that you
can't restrict abortion before viability, before say twenty three weeks,
and that had been secret for a long time. So
really what they were saying was, we want to change
the rules of when abortion restrictions are permitted. So two
(09:13):
federal courts said no, said you can't do this, and
they made a last ditch appeal to the Supreme Court
when Justice Ginsburg was still alive and it looked like
they had no chance, and then Justice Skinsburg died and
everything changed.
Speaker 1 (09:28):
In fact, that was a huge turning point for really
the ethos of the Court. Before we get into that,
I just wanted to ask you a couple of other
quick questions about the actual reporting. You had a difficult
time finding sources because everything is so tightly held there.
(09:49):
It's like a secret society in a way, right, Jody,
And anyone who kind of shares information is shun and
if it's discovered who they are. Right, Can you talk
about kind of the culture of the Supreme Court, because
it's so fascinating.
Speaker 5 (10:07):
It's correct to work there is pretty much to take
a vow of silence. So it's a pretty dramatic situation
because no matter who you are at the Court, if
you have access to the deliberative process, you are confronting
some of the hardest issues in American life. That's what
the Court is doing right now. They're taking on all
(10:27):
of these very controversial, hot button topics, and yet you
can't tell anybody what you've seen. And also there's no
accountability for these nine people, they have lifetime appointments, and
nobody is anybody else's boss there among the justices. Meaning
we look at Chief Justice John Roberts and he looks
(10:48):
like he's in charge in many ways, but he's really not.
He's really not. He's the administrator of the court and
of the federal courts, but he really doesn't have a
lot of leverage over the other justices. And so then,
to make things even more difficult, Adam and I were
reporting in the shadow of a leak investigation, of course.
Speaker 1 (11:06):
Right, so they were even more paranoid to talk to you, right,
anyone associated with the court.
Speaker 5 (11:12):
It was very difficult. But as you know, that's why
we do. We weren't doing it just for the sake
of breaking open the silence. We were doing it to
try to illuminate the court, to help us understand this
critical institution, and to provide some function of accountability. I mean,
(11:33):
as you know, we've both done this our whole lives.
In journalism, probably the most basic function of journalism in
a democracy is to just keep an eye on elected officials.
It's why in a small town you want a journalist
sitting there at a school board meeting or watching the mayor,
because you want to say, a representative of the people
is independently, not with government support, watching these government officials
(11:58):
to be able to see what they do. And so
in some ways we were just fulfilling that very basic function.
Speaker 1 (12:03):
Getting back to the Mississippi long curious Jody, and this
is a bit of a quick left turn. Has viability
changed with technology? I guess that's one of the questions
if in fact this twenty three week window has been
protected for a long time by the Supreme Court, Has
technology and modern medicine in fact allowed fetuses to live
(12:26):
even if they are less than twenty three weeks old.
I don't even know the answer to that.
Speaker 5 (12:32):
I mean, I'm not a doctor, but I can tell
you that Roe has always been a controversial decision, even
among liberals, and as you know, the fights about abortion
are just epic. And I think there has been some
legal wrangling over whether the viability rule is smart because
viability can change, right, But the I don't think that
(12:53):
was really what was happening with Dobbs. What happened with
Dobbs is that the composition of the court change and
big time. Yeah, I mean often you have a Supreme
Court that's stable for years and years at a time
because of these lifetime appointments. But very quickly, from Justice
Scalia's death in twenty sixteen up until very recently, you're
(13:14):
looking at a court that's been repopulated and mostly with
conservative justices.
Speaker 1 (13:19):
Well, let's pick up with Justice Ruth Bader Ginsberg's death.
She was sort of a firewall in terms of a
case like this, even being heard. She passes away. What happens,
She passes.
Speaker 5 (13:35):
Away just as the justices are about to take their
first preliminary look at Dobbs. And as you know, the
Supreme Court operates in two phases. The first level of
discussion is about whether the justices should take the case
at all. The second level of discussion is if they
take it is actually about deciding the case. So, in
(13:56):
very quick succession, Dobbs goes on the discussion list. Justice
Ginsburg dies with weeks until the twenty twenty presidential election,
in the final days really of President Trump's term. He
replaces Justice Skinsburg with Amy Coney Barrett, who is known
(14:17):
to disagree with abortion. She's basically a favorite of the
anti abortion movement and young and young and shuffled on
the Court in record time, a very quick nomination process.
So she's coming onto the scene even as President Trump
is being shuffled out of the White House and then.
Speaker 1 (14:39):
The Court they're trying to shuffle him out.
Speaker 5 (14:41):
Of the well exactly as he loses the presidential election,
is a better way to say it. And so the
Court is sitting there with this very hot button case.
And then it's in January of twenty twenty one, in fact,
two days after the January sixth insurrection, that the justices
have the first conversation about whether to take Dobs or not.
(15:04):
And this very new justice, Justice Barrett, has to decide
what to.
Speaker 1 (15:07):
Do, and she doesn't want to take it. She's very
hesitant at first. What we were able to report is
that she initially votes to grant that means to give
it the green light, but she voices some objections, some concerns,
you know, and she says, I'm really new here.
Speaker 5 (15:22):
I just got here. The composition of the court just changed.
That will change. And she says at that point Justice
Alito and a few of the others want to hear
the case very soon. They want to hear it that
term meaning a year before it was actually held, so
they are ready to move with those justices with this
colossal president. Justice as Alito, Thomas, and Gorsich all wanted
(15:46):
to hear it very quickly, and she says, if you
go and do that, I'm going to change my grant
vote to a deny. And then weeks later that's what
she actually does, she votes against taking the case. So
it's important to remember when we look at it. To
go back to your original question, Katie, how did this happen?
(16:07):
One of the key facts I'm going to tell you
is that this case was greenlighted by a minority.
Speaker 1 (16:13):
Of the court.
Speaker 5 (16:14):
Two conservative justices did not want to take it, Justice
Roberts and Justice Barrett, and it was all men who
greenlighted this case, and they overrode the objections of every
woman on the court, conservative and liberal.
Speaker 1 (16:31):
What was Justice Kavanaugh's role in this, because he was
a bit of a fly in the ointment for the
conservative justices, right, Well, or is that overstating it?
Speaker 5 (16:42):
Well, I think it's open to interpretation. Let's see what
happened and then we can interpret it. So they're sitting
there on January eighth, two days after this rupture in
American democracy, they have to decide whether to take the
case or not. It seems like they have the votes
to go ahead. But then at a subsequent meeting soon afterwards,
(17:03):
Justice Kavanaugh says, we should relist this case.
Speaker 1 (17:07):
What does that mean?
Speaker 5 (17:08):
It means we should just punt or pretend that we're
punting because we have the votes to go ahead, but
the time, like Justice Barrett has already said, the timing
wasn't right for her. So what he's suggesting is just
keep it on like a TBD list in.
Speaker 1 (17:26):
The double put it on the docket if you will
keep it on the docket because as on me or
don't say that we're going ahead even though we privately
know that we have the votes to grant.
Speaker 5 (17:38):
And he says, this will allow us to watch cases
play out in the lower courts. And so that's what happens,
and that also opens, you know, a kind of window
of persuasion. Some of the justices who don't want to
take it go to work on Justice Barrett and Justice Kavanaugh,
and as we know, Justice Barrett changes her vote. So
(17:59):
what was he really doing there? Was he saying? I
think the most obvious interpretation is that he really wanted
to take this case. He was in favor of it,
but he wanted more time. He wanted it to look
as if they were moving more slowly than they really were.
I guess there's another you know, there's another possible interpretation,
(18:20):
but it's hard to know what he really thought. I
guess there's an interpretation also that he was buying time. Well,
that makes sense to me now, you know, the reporting
indicates that he wanted to go ahead. But we can't
read the Justice's minds. We don't know what they were thinking,
and it's all a game of poker inside that building.
Speaker 1 (18:44):
We have to take a quick break, but when we
come back, we'll dig deeper into the dynamics of the
court and the details of two cases that affected the
Justice's decision to reconsider Row. If you want to get
smarter every morning with a breakdown of the news and
fascinating takes on health and wellness and pop culture, sign
(19:08):
up for our daily newsletter Wake Up Call by going
to Katiecouric dot com. Is Justice Alito sam Alito kind
of the leader of this whole movement to overturn Roe v. Wade,
(19:32):
Because I know Neil Gorsich decided he agreed with him
only ten minutes after right, talk about the timing and
how those two were really important figures and all this.
Speaker 5 (19:43):
So Justice Alito absolutely really propelled the court. He's one
of nine justices. But when you look at the role
he played first in rescheduling the case in the fall
of twenty twenty, he wrote the majority opinion, it appears
that he preservedulated it. We've seen evidence of some of
the arguments he was making internally, and if you read
(20:06):
his opinion, it's clear that he really wanted this to happen.
So it's interesting he first shared his famous draft, the
draft that made the law. This is also the draft
that leaked in February of twenty twenty two. This is
now the second phase, the phase where they're actually deciding
the case. And he shared it with the full court
(20:28):
one morning, and Justice Gorsuch did an interesting thing, which
is he said, yes, I'm signing on to this, I've
no changes, ten minutes after Justice Alito sent it around
and it was a ninety eight page opinion. So does
that mean he never even read the opinion before saying yes,
I don't think so, we don't think so.
Speaker 1 (20:50):
So were they in kahoots?
Speaker 5 (20:51):
Well, it appeared that Justice Alito pre circulated the opinion
among the majority before sharing it with the full which
is not that unusual a thing to do. When you
do that, you're trying to get buy in from the
other justices. So he shared it with we think, we
don't know exactly potentially, but it appears that he shared
(21:14):
it with Justices Gorsage, Barrett at Kavanaugh, Thomas. Let's talk
about the period of time between when the court agreed
to hear the case and when they made the decision.
Can you take people through sort of what happened, because
I think it still is such a mystery for people
how the court operates.
Speaker 1 (21:33):
Sure.
Speaker 5 (21:34):
Well, two, there's the thing that sort of was like
expected and routine, and then there was a real wild
card in there as well. So the routine thing is that,
you know, okay, the justices are taking the case. There
are months and months of planning and build up. Both
sides are filing briefs. They're amicus briefs being filed by
(21:56):
people who you know, agree with one side or the other.
Speaker 1 (22:00):
That's like friend of the court friends.
Speaker 5 (22:01):
Yeah, exactly, they're saying the court must do this. You know,
for this reason, the lawyers are preparing their oral arguments
because they're about to argue a historic case. So all
of that is proceeding when boom, this Texas case comes along.
That is extremely unorthodox. Here you have Mississippi trying to
(22:23):
overturn Row. And by the way, during this time, Mississippi
expanded its question. Its first brief early in the process
said it's not necessary for the court to overturn Row
to go ahead with this fifteen week rule by Mississippi.
During this time period that we're talking about now they say, actually,
we're trying to overturn all of Row. And this is
(22:46):
kind of an unorthodox thing to do because they're changing
the question. And Adam and I point out that there
are other cases where the court is actually rejected the
entire thing by saying to the lawyers, hey, you changed
the question, it's cool.
Speaker 1 (23:00):
But they didn't.
Speaker 5 (23:01):
They didn't.
Speaker 1 (23:02):
So wait, let me just go back real quickly. They
tried to change it from the fifteen week rule to
what so Mississippi, when they pose the case say we're
just trying to do this fifteen week cut off for abortions.
We are it is not necessary to overturn Row. Then,
during the merits phase, they file another brief saying, Justices,
(23:24):
you've got to go all the way here an overturn row.
It's like they sends to opportunity and expanded their question. Now, normally,
I feel like I'm going on Michael Barbara on you.
Normally you can't do that. You're saying that. A lot
of times if it changes midstream, the justices or the
court will say, no, you can't do that.
Speaker 5 (23:46):
You risk the justices dismissing the case as improvidently granted
if you do that. However, in this case, it's at
the justice's discretion, and in this case they went ahead.
So what about this Texas law? So, even as mississid
be is on its way to turn truro, Texas steps
(24:06):
in with a much more provocative law than Mississippi's. Texas
has what's called a heartbeat bill, banning abortion around the
time you hear a heartbeats, which is six seven weeks.
Speaker 1 (24:21):
Now.
Speaker 5 (24:21):
The funny thing is that a lot of women don't
know they're pregnant. Then you can't even do an abortion
if it's too early. But not only that, the law
has this incredibly unusual structure where regular people, uber drivers,
doctors can be sued for helping to provide the abortion,
(24:41):
and by doing that, the drafters of the law actually
made it immune from review by the federal courts. They
found this kind of loophole that said, the Supreme Court
actually can't rule on whether this law is constitutional or not,
even though this this law it contravenes Row. And so
(25:04):
this case comes to the Supreme Court in an emergency application.
This is totally different than the Court's regular procedures. It's
like a last minute thing. This is the Texas Law.
Two days before the Texas Law is supposed to go
into effect, more or less overturning Row in the second
most populous state in the entire country. Abortion providers in
(25:26):
Texas come to the Supreme Court and say, you've got
to stop this. This is illegal, this is improper. And
the Court becomes kind of frozen over what to do.
And this was part of our reporting as well. It's
this last minute application. It's August thirty first. Four of
the justices, led by Justice Alito, want to go ahead.
Four of the justices, led by Justice Roberts, Chief Justice Roberts,
(25:49):
want to stop it, and Justice Gorsitch doesn't vote in time.
So the Court doesn't make a decision or announce anything
before the law goes into effect, goes into effect, and
then only the next day does the court issue a
decision allowing it to go ahead. Says we're not we're
not intervening.
Speaker 1 (26:10):
And by the way, the Texas law would even make
it a crime to Let's say I had a friend
who needed an abortion, and we both lived in Texas,
and I drove her to a nearby state where she
could terminate her pregnancy. I could be charged with criminal activity. Right.
Speaker 5 (26:30):
It's not like you're not going to be put in
jail for, you know, a criminal offense, but you can
be subject to a lawsuit. And so there is this
feeling that like, wait a second, things are moving even
more quickly than people even realized.
Speaker 1 (26:48):
And more severely and maybe more right.
Speaker 5 (26:50):
And also it doesn't look good for Roe at that point.
You know, people are starting to say, if the court
is allowing this Texas law to go ahead, they're not
going to stop Mississippi.
Speaker 1 (27:01):
Let's talk about the leak, because that is a big
part of your reporting. Yeah, who do you think leaked
the decision?
Speaker 5 (27:08):
And why I you know, I don't know, and I
can't tell you it's going to be it's going to
be interesting to see Kiti, whether history ever figures it out,
or whether anybody ever comes forward absent photographic evidence, it
is really really tough to say. I think the question
that is almost more interesting is, and this is what
(27:30):
Politico never told us, what was the motive? What was
the motive? Because you know, there are two sides here,
right There are people who were outraged that the right
to abortion was overturned, and there are people who saw
it as a must, a necessity, the crowning achievement of
the conservative legal movement. And so there are essentially two theories.
(27:54):
There's this theory that a liberal did it to raise
alarm bells about what was about to happen, and then
there's a theory that a conservative did it in order
to make it a runaway train, in order to help
lock in the votes and prevent a compromise. And one
of our discoveries in our reporting was that the compromise
(28:14):
efforts underway at the court were more extensive than anybody knew.
Speaker 1 (28:19):
Let's talk about that, because I haven't mentioned just a
Briar's role in all this exactly, and tell us what
was going on behind the scenes.
Speaker 5 (28:28):
Well, listen, I don't know how people listening and hearing
this today would feel about this. But what if the
court had stopped at fifteen weeks? What if we were
living in a reality today that said you can have
an abortion up until fifteen weeks. That's what Chief Justice
Roberts wanted to do. I mean, he basically said, this
is the rule in a lot of other democracies, you know,
(28:53):
he wanted His position was that he wanted to allow
Mississippi to go forward with its law, but essentially stop
there at least for the time being. And part of
what's interesting is that it turns out that Justice Bryer,
a lifelong liberal, was considering joining that position, which only
(29:14):
would have had symbolic value. It wouldn't have been legally,
it wouldn't have changed the legal outcome. But what would
have changed it is that, because of the Court's kind
of unusual mass, the Chief Justice only needed one vote
from the conservative side to make that the law. So
if he had been able to win over Justice Barrett
(29:34):
or Justice Kavanaugh, say, we would be living with the
fifteen week rule today and Roe would still be partially intact.
It would be sort of smaller and more limited, but
it would still exist.
Speaker 1 (29:48):
I'm curious, and I know you're not a doctor, neither
am I of course, but don't most women get abortions
in that time tame? Anyway, I think that's absolutely so
much misinformation about quote unk quote late term or even worse,
partial birth abortions that compromise. So few abortions that take
(30:11):
place in this country, and when they do, it's usually
because the life of the mother is in danger and
there's something seriously wrong with the fetus. Yeah, and so
that would have precluded all these states from enacting much
more draconian laws.
Speaker 5 (30:26):
Correct, Yeah, I think the states would have continued to
challenge a fifteen week rule. You know, there's one theory
that says that a fifteen week rule was only a
gateway to a ten week rule, which would have been
an eight week rule, which would have been a six
week rule, and then you have no.
Speaker 1 (30:38):
Right then abortion after that law. Right exactly, But maybe not.
I mean, maybe that would have play came maybe or not.
It's so hard to talk in hypotheticals. And also, the
abortion debates in this country are so thunderous that it
seems like wishful thinking that you know, after all these years,
(31:01):
this country could just you know, say, okay, fifteen weeks.
You know, the referee is blowing the whistle, like you know,
the this is done and we're moving on to the
next issue.
Speaker 5 (31:11):
But we don't know. I mean, look at what's changed
with politics in this country since Roe was overturned. You
know what would have been the political after effect of
a fifteen week rule. We can't you know, we can't know.
Speaker 1 (31:26):
Talk about the leak and how that basically nullified any
attempts at the compromise that Justice Roberts and Brier were
considering this fifteen week ban.
Speaker 5 (31:39):
So the reason why these votes are secret is so
justices can change their minds. It's to preserve their privacy.
I mean, it's the deliberative process is supposed to have
a sanctity to it because, no matter our political backgrounds,
we really want the justices to be engaged in thoughtful
contemplation and debate and to really do what they feel
(32:03):
is right. And sometimes that can mean changing your mind
or shifting your position. So this was a really grave
breach for that reason. You know, the Court has called
it an assault on the deliberative process, and I think
that's right. Because it wasn't just the outcome that was leaked.
It wasn't like somebody said, Katie Rowe is going to
(32:24):
be overturned. The entire opinion was leaked. I mean, that
is so unthinkable. And what happened is that it rendered
the efforts to compromise kind of hopeless. Now, who knows
how much hope they had to begin with. We really
can't say, because you know, it would require a kind
(32:46):
of like truth serum. I think for one of the
justices to know every thought that was going through their minds.
But we do know that some of the justices were
trying to persuade others and that just didn't work once
everything became public.
Speaker 1 (33:00):
Why, I mean, why for.
Speaker 5 (33:01):
A justice to change their minds after the votes and
the opinion had become public. It would have looked like
they were bowing to public pressure, which they never want
to look like they're doing.
Speaker 1 (33:14):
So the decision had them pretty much boxed into their view. Right,
I would say, it's solidified what already seemed to be happening.
So this term, the Supreme Court is going to decide
whether to limit access to a key abortion drug. What
do you think is going to happen.
Speaker 5 (33:35):
I can't tell you exactly, but it's very dramatic, and
I'm glad you mentioned it, because what we have to
understand is that this is now the most common method
of abortion in this country. Our old image of you know,
going to a clinic and priasurgery is somewhat.
Speaker 1 (33:51):
Is antiquated at this point, although I think it's only
it still happens, but I think more than fifty percent
of abortion use a pill that will terminate the pregnancy.
Speaker 5 (34:03):
And so now this question is back with the justices,
which is not what they said would happen in his
majority opinion from Dobbs, just as Alito says, we're throwing
this back to the States. The people are going to
decide we are washing our hands of abortion dissians. Well,
I think they, I mean, they chose to take the
(34:23):
case because I think they essentially have to. You know,
this is really controversial. There's a lot of disagreement. So
basically the Supreme Court has to decide whether these really
strict restrictions on these abortion drugs that were put in
place by a lower court are going to stand or not.
(34:44):
And remember that this is a different set of legal issues.
This is about the FDA and what drugs were approved.
So it's you know, the Court said that it was
wanted to get less involved in abortion questions, but it
appears to be getting more involved.
Speaker 1 (35:02):
After this break. Jody's take on what the outcome of
the twenty twenty four presidential election could mean for the
future of the Supreme Court and of course, abortion rights.
(35:25):
I shudder to think about the composition of the Supreme
Court if Donald Trump is re elected, because that means
even more conservative justices. Who is the next to retire, Jody,
and how could his reelection impact the composition of the court.
Speaker 5 (35:50):
You know, it's a really interesting question, in part because
of the very complicated and not straightforward question of what
happened with the first three judges he appointed. President Trump
said that he was going to put in place justices
who would automatically overturn Row. I mean, he did, But
did they do it automatically or not? I don't know.
(36:12):
That's part of why it's so interesting that Justice Barrett
didn't vote to take the case, and in general, they
didn't take his marching orders. Remember that this court reviewed
a lot of election cases in which President Trump wanted
them to stand by the idea that he had really
(36:33):
won the twenty twenty election. They didn't do that. They
rejected his ideas over and over again. And of course
now they're about to face an even more dramatic, arguably
set of election cases. And so he appointed very conservative justices,
but not justices who took his dictates in an edge
(36:54):
to his chagrin. Prom but much to his chagrin, and
on January sixth, he actually gave a speech saying, I
regard these justices as disloyal to me. I fought for them.
He was especially talking about Justice Kavanaugh because of the
sexual misconduct allegations during his nomination. So your question is
a great one, but before we get to that, I
(37:15):
kind of think we need to focus on this earlier
question of b what are the.
Speaker 1 (37:20):
Justices going to do with these elections? Well, says, let's
backtrack and actually talk about that, Jody, because that's certainly
something I wanted to discuss with you, knowing what you
and Adam uncovered about the inner workings of the Supreme Court,
what do you think they are going to do when
they hear in February this Colorado case that, says Donald Trump,
(37:42):
because of Article fourteen, Section three of the Constitution about
dealing with insurrectionists, that he cannot be on the state
ballot for president of the United States. You know, a
lot of people say, if they're the strict constructionists they
claim to be or originalists, right, and they follow the
letter of the law when it comes to the Constitution,
(38:03):
they will agree with Colorado. What's your sense.
Speaker 5 (38:08):
Nobody knows. It's a great question, because it is pretty
clear that January sixth was an insurrection.
Speaker 1 (38:14):
And there's no requirement to be convicted of that.
Speaker 5 (38:17):
Well, so what Adam Adam Leptak has written is that,
of course it's impossible to know, but based on his
reading of the law and his knowledge of the justices,
he's indicated that he thinks it's a little He thinks
the justices may be reluctant to keep a candidate off
(38:39):
the ballot, really just on the principle that it's the
people who are supposed to decide elections. However, it's one
of the other cases, this immunity case, in which President
Trump is.
Speaker 1 (38:51):
If you're president, you're immune to criminal prosecution.
Speaker 5 (38:55):
Adam thinks the justices may not go for that. So
we'll see, We'll we'll say well, we'll see. But for
the first time since Bush v. Gore, it really looks
like a presidential electionist in the justices' hands.
Speaker 1 (39:07):
It's going to be so interesting to watch. And one
last question, Jody, because it really has to do with
the Supreme Court and the lack of transparency or as
you said, the opacity I guess, of the of the
High Court. There have been a lot of questions about
(39:28):
the behavior of one particular Supreme Court justice, and that
is Clarence Thomas. And if he has made too many compromises.
We don't have to get into all the details here,
but gifts and whether or not he's been influenced by
certain outside interests, et cetera, et cetera. What is happening
(39:48):
in terms of making sure the Supreme Court had and
by the way, in public opinion polls, views of the
High Court have declined, right and approval ratings, if you will.
What happening in terms of ensuring that the justices are ethical?
Speaker 5 (40:06):
So there's a new ethics code, but it's soft. On
the one hand, it's a real change, it's a real advance.
They put out something publicly and remember that you know,
part of what is really surprising about the Supreme Court
is that they're actually bound by fewer rules than other
federal judges, which kind of makes no sense because you say,
(40:27):
how could the people with the highest responsibility have a.
Speaker 1 (40:32):
Lost amount of safeguard lower standard?
Speaker 5 (40:34):
That's right, and so there is an ethics code now,
but it lacks an enforcement mechanism. Some of the language
is open to interpretation. It's still basically an honor system
and a voluntary basis. But listen, this is why reporting
on the court is so important, and Pro Publica has
(40:54):
done so much work on this issue at the times
other publications, and I think there's just a renewed feeling
that we have to watch and understand the justices because
they have so much power, and even in our system
of checks and balances, their power is that their power
lacks a lot of the usual checks.
Speaker 1 (41:14):
For people watching or listening to this who believe in
a woman's right to choose, do you see this Ever
sort of turning around. Do you see something akin to
row Ever being reinstated.
Speaker 5 (41:32):
It's a better question for a legal expert, but I
think we're seeing it on the political side. I mean,
look at what happened in Ohio. You know, there were
just massive efforts, you know, to also Kansas. Yeah, exactly.
I mean we're just seeing that. You know, Adam and
I never really talked about politics and he was elected
and ballot referendums and stuff during our reporting because we
(41:55):
were entirely focused on the court. But you could argue that,
you know, would just Alito and his colleagues did succeeded legally,
of course, but members of the Republican Party. I'd be
fascinated to talk to a Republican political official and here
his or her response to our story and what the
(42:18):
court did, because there are some Republicans who feel this
has been a disaster.
Speaker 1 (42:23):
For them right politically, and yet I think it's also
been seen as a huge triumph exactly that took years
and years and years for the anti abortion movement in
this country.
Speaker 5 (42:35):
Yeah, I think that's right.
Speaker 1 (42:38):
So maybe they're reaping what they sewed politically. These Republican officials,
they wrote on the wins of anti abortion quote quote
unquote pro life advocates, and now maybe be careful what
you wish for, because I think it's so extreme and
(42:59):
it's going so ex dream that now there's a backlash
to that whole movement, I think, I hope anyway.
Speaker 5 (43:06):
I think that's part of why it's so important and
fascinating to understand the history, because you say, to yourself, Okay,
look at Chief Justice Roberts's fifteen week compromise. He looked lonely.
It looked like a losing proposition. What would this country
look like if it had prevailed. I don't know. Hard
to say, but we probably wouldn't see the political reaction
(43:26):
we have seen.
Speaker 1 (43:27):
Jody, Thank you so much. Thank you explaining this complicated
topic in such an understandable way. It's so important that
Americans pay attention and understand how government works, so I
hope they'll listen and learn from this.
Speaker 5 (43:43):
Thank you for your great questions, Katie, Thanks for listening.
Speaker 1 (43:57):
Everyone. If you have a question for me, a subject
you want us to cover, or you want to share
your thoughts about how you navigate this crazy world, reach out.
You can leave a short message at six oh nine
five point two five five five, or you can send
me a DM on Instagram. I would love to hear
from you. Next Question is a production of iHeartMedia and
(44:20):
Katie Kuric Media. The executive producers are Me Katie Kuric
and Courtney Ltz. Our supervising producer is Ryan Martx, and
our producers are Adriana Fazzio and Meredith Barnes. Julian Weller
composed our theme music. For more information about today's episode,
or to sign up for my newsletter, wake Up Call,
(44:42):
go to the description in the podcast app, or visit
us at Katiecuric dot com. You can also find me
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