May 13, 2022

Ed Whelan and Mary Ziegler

Legal scholars Mary Ziegler and Ed Whelan discuss their differing views on the Supreme Court’s leaked draft opinion that would overturn Roe v. Wade, the future of abortion law in America, and what this expected ruling could mean for other cases.

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With Roe v. Wade in the balance…An historic leak and a crisis of legitimacy at the Supreme Court… This Week on Firing Line…

 

Protesters: “My body, my choice! My body, my choice!” 

 

It was a Supreme Court shocker – an unprecedented leak of a draft opinion that would overturn the landmark 1973 decision that legalized abortion in America. Justice Samuel Alito writing that Roe v Wade was, quote, “egregiously wrong from the start,” reportedly with the backing of the Court’s conservative majority.

 

ZIEGLER: If this draft resembles the final draft, this will be probably unnecessarily polarizing in some ways.

 

Mary Ziegler is a legal historian and constitutional law professor specializing in reproductive rights. She’s written four books on the history and politics surrounding Roe and signed a brief in the fall in support of the clinic in the current case 

 

WHELAN: Justice Alito spends pages and pages identifying Roe’s defects. But in broad strokes, Roe made it up. 

 

Ed Whelan is a conservative legal thinker and commentator – the former president of the Ethics and Public Policy Center who clerked for the late Justice Antonin Scalia — and co-edited several volumes of the conservative legal lion’s work.

 

Protesters:“Keep your rosaries off my ovaries!”

 

With the backlash building…

 

Kamala Harris: How dare they tell a woman what she can do and cannot do with her own body? 

 

…and questions mounting about what the case could mean, what do (Professor) Mary Ziegler and (conservative attorney) Ed Whelan say now? 

 

‘Firing Line’ with Margaret Hoover is made possible in part by: Robert Granieri, Charles R. Schwab, The Margaret and Daniel Loeb Foundation, The Tepper Foundation, The Fairweather Foundation, The Asness Family Foundation and by, Craig Newmark Philanthropies, The Rosalind P. Walter Foundation, Damon Button and The Simmons Family Foundation. Corporate Funding is provided by Stephens Inc. and Pfizer inc.

 

HOOVER Professor Mary Ziegler and Ed Whelan, you’re both attorneys with years of accumulated expertize about the Supreme Court, the Constitution, and our laws in this country surrounding abortion. You have different perspectives on these issues, and I look forward to a thoughtful and respectful conversation with both of you on these sensitive topics. Welcome to Firing Line. 

 

WHELAN Thank you. 

 

ZIEGLER Thanks for having us. 

 

HOOVER Last week, Politico published a stunning leak of a draft Supreme Court opinion that will, if it holds, overturn Roe v. Wade. It will return the authority to legalize abortion to the states for the first time since 1973. In the leaked draft opinion, Justice Samuel Alito writes for the majority, quote, “Roe was egregiously wrong from the start.” Ed, you praised Justice Alito’s draft opinion as, quote, “a masterful document.” From a conservative legal perspective explain to the audience why Roe was wrongly decided. 

 

“SUBSTANTIVE” DUE PROCESS 

 

WHELAN Well, Justice Alito spends pages and pages identifying Roe’s defects. But in broad strokes, Roe made it up. There is nothing in the Constitution that explicitly or implicitly supports the notion of a constitutional right to abortion. As you indicated, that doesn’t mean that the states don’t have the power to recognize and create abortion rights. And the primary constitutional clause that has been relied on in Roe was  the due process clause of the 14th Amendment, which provides that states shall not deprive any person of liberty without due process of law – life, liberty or property, without due process of law. And this has been interpreted by some as meaning that there are some liberties that you can’t be deprived of no matter what. That is, that this seemingly procedural protection guarantees certain substantive rights, no matter what the procedure. And what Justice Alito did is march carefully through, assuming that to be the case, explaining why abortion, given its long history of being a crime, does not qualify as a liberty in the American tradition that could be the basis for a constitutional right under so-called substantive due process. 

 

HOOVER Mary, there are some liberals who have agreed in the past that Roe was poorly decided and poorly reasoned, which doesn’t mean that they thought that it should be overturned necessarily. But even the late Justice Ruth Bader Ginsburg said that, quote, the Court “ventured too far in the change that it ordered.” Why is it, Mary, that even liberals have agreed over time that Roe was a bad decision on legal grounds? 

 

EQUAL PROTECTION VS SUBSTANTIVE DUE PROCESS

 

ZIEGLER I think there were there were progressives who had argued for a long time that Roe would have been more persuasive if it had focused on the equal protection clause, which is a part of the text of the Constitution, and had focused on the idea that treating someone differently because they’re pregnant is often the same thing as treating them differently because of sex. That was the argument that Justice Ginsburg favored and I think she thought would have been a harder argument for conservatives to dislodge than the kind of substantive due process argument that the Roe Court ultimately adopted. The other concern, I think, that progressives expressed over time was one kind of about timing and scope. And I think one of the questions I think facing the Supreme Court now, as this draft may or may not become final, is whether this court is sort of repeating the mistakes of the Roe court in terms of moving too quickly, using disrespectful language, things that may intensify what will undoubtedly be an explosive reaction regardless of what the court ultimately does. 

 

HOOVER Ed are you in the camp that referred to Roe versus Wade’s decision as judicial activism? 

 

WHELAN Oh, absolutely. Again, what it did is it invented a constitutional right that overrode the democratic processes and invalidated the abortion laws of all 50 states at the very time, as Ruth Bader Ginsburg liked to point out, that the states were engaged in the serious process of deciding whether to reform their laws. So by any definition of judicial activism Roe versus Wade is exhibit number one. 

 

HOOVER Mary, on the flip side of this, is overturning Roe versus Wade an example to you of judicial activism?

 

ZIEGLER It’s ironic in the same opinion to say essentially part of the problem with Roe was the kind of cultural devastation it left in its wake, the kind of polarization it produced. And then to say, but, you know, we really don’t care about that kind of polarization. So I think that if this draft resembles the final draft, this will be probably unnecessarily polarizing in some ways, even for a court that’s going to overturn Roe. And I, you know, as someone who’s not excited about the loss of faith in democratic institutions across the ideological spectrum, I’m not excited by the court taking a step that might undermine some people’s perception of its legitimacy, even if the court is determined to overturn Roe. 

 

WOULD EQUAL PROTECTION HAVE BEEN A BETTER ARGUMENT?

 

HOOVER What some constitutional lawyers have argued, including Justice Ginsburg, was that in retrospect, the better argument to uphold abortion as a constitutional right would have been through the equal protection clause of the 14th Amendment, because laws against abortion disadvantage women and deprive them of autonomy over their bodies. Mary, as someone who has written about the history of Roe, give us the historical perspective on why the equal protection clause was not used. 

 

ZIEGLER The leading arguments were about privacy, in part because that was what the Court’s precedents had focused on. So the Court had decided, as Ed alluded to, recent substantive due process decisions about contraception, about marriage, about parenting, about the desire to procreate when the state didn’t want you to. And so I think it was logical at the time for abortion rights supporters to connect abortion to these precedents. 

 

PERSONHOOD OF THE FETUS AND A NATIONWIDE BAN OF ABORTION

 

HOOVER The equal protection clause, it’s also an argument used by those who argue against the constitutionality of abortion. In his Dobbs opinion, Alito cites an amicus brief that states that abortion restrictions are, quote, “constitutionally obligatory because unborn children are persons within the original public meaning of the 14th Amendment’s due process and equal protection clauses.” Ed, could the Supreme Court rule to restrict abortions nationwide using this kind of argument? 

 

WHELAN Well, there’s zero chance that the Court will. Indeed, there’s language in Justice Alito’s opinion that states, I believe the Constitution unequivocally leaves this matter to the democratic processes. So the personhood argument that you referred to is, I think, much more persuasive than I first thought. I don’t ultimately accept it, but I find it much more powerful than Roe itself. 

 

HOOVER And that opinion, do you think that that language in the opinion is really enough of a guardrail to not influence the thinking of future justices in future cases? 

 

WHELAN Well, no justice has ever come anywhere close to embracing this concept. So can I say categorically that that language would foreclose it in the future if hypothetically somehow you would get five justices on the court who believe in this argument? I’m not going to go that far, but I would bet every dollar I have that is not going to happen.

 

HOOVER Mary, you wrote in The Atlantic that if the language about the value of fetal life makes it into the final decision, “it will be read by anti-abortion rights leaders as an invitation to return to the court and ask the conservative justices to hold that the Constitution recognizes the personhood of the fetus and that abortion is unconstitutional in blue as well as red states.” Ed has just said that he doesn’t see this happening. Why are you persuaded this is a real possibility? 

 

ZIEGLER Well, I mean, I think part of the reason I’m persuaded is that the pro-life movement from its inception has not been about returning the matter to the states. It was called a ‘right to life’ movement because people who are part of the movement believe that abortion is a violation of human rights. And so it will not be the case that the movement will be content to leave this to the states, in part because it’s large blue states for the most part like California and New York where most abortions in the United States happen. So to the extent we’re going to see a decline in the abortion rate if Roe is overturned, it will be comparably modest. I don’t think this will happen soon, but I’m not sure there aren’t potential votes for this on the court, you know, in five or ten years. Fetal personhood is gaining some currency in the conservative legal movement. That wouldn’t have been the case several years ago. So I think if we’re talking about right now, do I think the Supreme Court is going to hold abortion to be unconstitutional, Ed and I are probably on the same page about that. I’m not sure that that’s true if you look at a broader time horizon. And so I think it’s probably a mistake to underestimate what people in the anti-abortion or pro-life movement are capable of doing through organizing, because we as a country have been doing that for decades, which is why a lot of people are surprised that we are where we are with Roe v. Wade. 

 

HOOVER Ed, do you want to comment on Mary’s analysis? 

 

WHELAN Sure, and this is just a political prediction, but I just think as a matter of political reality, I don’t see the court getting ahead of the people in that way. 

 

PUBLIC SUPPORT OF LEGAL ABORTION

 

HOOVER Even though, I mean, one could argue the court is ahead of the people in this way. All the recent polling suggests that a majority of Americans are in favor of Roe remaining in place. And yet–

 

WHELAN I don’t think we can read too much into these polls. But beyond that, I would just say it’s a much bigger step for a court to entertain a personhood argument when the American people are still trying to figure out how to reconcile the sharp conflicts that this issue raises. 

 

HOOVER In November of 1972, just two months before the Roe v Wade decision came down, Attorney Roy Lucas was a guest on the original Firing Line with William F. Buckley, Jr. And he was arguing in defense of abortion rights. Now, Lucas, as I’m sure you both know, was credited with adapting the legal theory around privacy from Griswold and applying it to the argument that was used in Roe. Listen to this moment when Mr. Lucas is asked a very fundamental question by a physician on the panel. Take a look. 

 

  1. MARKS What is it exactly that makes abortion a legal issue? 

 

LUCAS I don’t think it should– I don’t think there should be laws on abortion that impose restrictions on women like this. I don’t think it should be a legal issue. And I agree with physicians who say that lawyers, mostly male lawyers, have been messing around with this issue too long. 

 

HOOVER Lawyers have been messing around with this issue for too long. Ed and Mary, It seems to me that 50 years later  this question is still applicable. What exactly is it that makes abortion a legal issue? Mary, to you first. 

 

ZIEGLER Well, different parts of our government have been making abortion a legal issue, for better or worse, now for centuries. So I think the objection that abortion shouldn’t be a legal issue could equally be raised by folks on the right and the left, because lots of people in different ways have been making abortion a part of the law rather than either a purely moral or a medical issue for some time. 

 

WHELAN Bottom line, it’s a legal issue because it’s something that folks think the law ought to care about. 

 

IMPORTANCE OF PRECEDENT

 

HOOVER “Stare decisis” is Latin for to stand by things decided. It is, in other words, respect for precedent. And precedent, as you both know, was a key reason why Roe’s central tenet was upheld when Casey came along in 1992, when, Ed, you were clerking for Justice Antonin Scalia. In their plurality opinion that reaffirmed Roe, Justices Sandra Day O’Connor, Anthony Kennedy and David Souter wrote, quote, “While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society and to make reproductive decisions.” Justice O’Connor, Kennedy and Souter were all, of course, Republican appointees. And, Mary, as a legal historian, how do you explain their decision to respect precedent? 

 

ZIEGLER Well, I think the Casey joint opinion essentially said that while people may not like Roe, the idea was that people had kind of ordered their lives around the idea that abortion would be at least not criminal if the need for it or the desire for it arose. The question really being, you know, does equality for women and other pregnant people in the United States have to do with access to abortion or not? And you see, I think, the draft opinion grappling with this. And it’s really a key question in the case. 

 

HOOVER You know, there are conservative legal scholars, Ed, who argue that overturning Roe v Wade, despite the original flawed decision, could be dangerous. There’s a prominent Federalist Society member, George Conway, for example, who recently said of Roe, “I don’t think it should be overruled. I think it’s too late. It’s 49 years down the pike. And I think the stare decisis portion of Alito’s draft opinion is absurd.”  How do you explain Alito’s stare decisis arguments in his draft opinion? 

 

WHELAN Well, stare decisis considerations are very broad. No justice has ever taken the position that a wrong constitutional ruling can never be overturned. And we see that the Casey Court, contrary to what it purported to do, was not able to impose an end to this national controversy. And I think Alito’s brief reflects a deep faith in our American system and the American people in the capacity of people to work this issue out state by state in a way that will be more stable and enduring than a judicial imposition. 

 

HOOVER Alito does cite several cases where precedent has been overturned, including Brown v Board of Education, which ended separate but equal, overturning Plessy versus Ferguson. Do you see overturning Roe as different than the other examples Alito cites? And, Ed, I know that you’ve called Roe v Wade the Dred Scott of our age. Maybe explain what you mean. 

 

WHELAN Well, sure. You know, Dred Scott was the ruling in 1857 that held that Congress lacked the authority to ban slavery in certain federal territories. It thus deprived the American people of their ability to accord basic protections to a whole class of human beings. Roe, in the same way, deprived people in the various states of their ability to protect a class of human beings. Now, I’m not saying that the unborn are just like slaves. But both involve the invocation of so-called substantive due process to empower the court to deprive the American people of the ability that the Constitution gives them to craft protections for these beings. 

 

HOOVER I just want to be clear. It sounded like you’re likening an embryo or a fetus that is not independently viable to slavery?

 

WHELAN No, I’m not. I’m drawing an analogy based on principle. That is, I’m saying that in both Roe and in Dred Scott, the court invoked substantive due process to prevent the democratic processes from operating in this basic area of conferring protection to a class of human beings. One need not go further than that. 

 

HOOVER Mary, what do you make of the examples that Justice Alito gave of overturning previous precedents in this draft? 

 

ZIEGLER I mean, people are going to read that, whether this is the court’s intention or not, as comparing people who support abortion rights to segregationists. And I think if you’re going to invoke a comparison to segregation or slavery, you best do that in a very careful way, or you are going to potentially inflame debate more. And I don’t know, if you’re the court, why you would use that kind of language at a time when you know that this is a polarized subject. 

 

HOOVER What do you make of this argument, Ed, that the language that Justice Alito chose to use is unnecessarily inflammatory?

 

WHELAN Well, I see language throughout the Alito draft that treats with respect arguments made by people on both sides of the abortion issue. Look, I think it’s no surprise that if you’re going to be talking about overturning significant precedents that you’re going to be talking about Brown and Plessy versus Ferguson. I think all we’re doing is talking about a momentous case that was overturned in a momentous ruling.

 

HOOVER I’d like you both to take a look at what Justice Alito and some of the other justices who were reportedly voting with him said during their confirmation hearings about precedent and Roe versus Wade. Take a look at this. 

 

ALITO] Roe versus Wade is an important precedent of the Supreme Court. It was decided in 1973. So it’s been on the books for a long time. I think the doctrine of stare decisis is a very important doctrine because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. It’s not an inexorable command, but it is a general presumption that courts are going to follow prior precedents.

 

GORSUCH The Supreme Court of the United States has held in Roe versus Wade, that a fetus is not a person for purposes of the 14th Amendment. That’s the law of the land. I accept the law of the land, Senator, yes.  

 

KAVANAUGH I said that it’s settled as a precedent of the Supreme Court, entitled to respect under principles of stare decisis.

 

BARRETT Roe versus Wade clearly held that the Constitution protected a woman’s right to terminate a pregnancy. 

 

HOOVER Many, including House Speaker Nancy Pelosi, Senate Majority Leader Chuck Schumer, have accused some of the justices of lying in their confirmation hearings. Mary, in your view, is that fair? 

 

ZIEGLER I mean, no. I think they didn’t answer the question. And I think it’s not– unfortunately for everyone, no one answers questions in Supreme Court confirmation hearings. People may hear what they want to hear in those kinds of non-answers. I think the justices, as have justices going back really to Robert Bork’s failed confirmation hearing in the 80’s, have done their best to dodge any kind of substantive answer to any question about anything, especially about something like Roe. And I think that’s mostly what we saw in those clips. 

 

HOOVER Mostly, but you both just heard Brett Kavanaugh say that Roe is settled as precedent. That’s a quote. It is settled as precedent. So, Ed, how do you explain what people will perceive as a flip flop? 

 

WHELAN Well, they shouldn’t. It’s tautological, if you like. A Supreme Court ruling is precedent. Every ruling is settled as a precedent. And therefore you apply the stare decisis considerations before making a decision to overturn it. And you overturn only if those factors support overturning. So I think that what is spelled out in the Alito draft is entirely consistent with the testimony of each of these justices. 

 

HOOVER During his confirmation hearing in 2006, Justice Alito said that the court, quote, “should make its decisions based on the Constitution and the law and it should not sway in the wind of public opinion at any time.” Now, the court is taking a stand against the opinion of the majority of Americans. Ed, I know you’ve dismissed the polling, but the polling is there. Nearly two thirds of Americans are opposed to overturning Roe v Wade. Mary, I know you say that you’re not surprised that this court would overturn Roe, but you’ve also said that you remember a time when the court wouldn’t stray too far from public opinion and popular opinion. So what’s changed? 

 

ZIEGLER I think the way our Supreme Court confirmation processes have worked, that has changed. Supreme Court nominees are now not particularly chosen because they’ll be easy to confirm or they’ll receive bipartisan support. They’re often chosen in part with an eye to rallying base voters. I think the conservative legal movement’s approach to Supreme Court nominations has changed, and that’s especially true with respect to abortion, And I think as a historian of this topic, I was expecting that a court with these people on it would reverse Roe, because it’s an article of faith now in the conservative legal movement that, as Ed put it earlier, Roe is the prime example of judicial activism. And if you put six people who have throughout their legal careers come to hold that belief, you would expect them to, sooner or later, act on that belief, whatever they profess in congressional testimony. 

 

HOOVER Ed what Mary just described is that the imminent overturning of Roe v. Wade has been in the making in the conservative movement for decades. Is that fair? 

 

WHELAN Oh, well, absolutely. I think that Roe has long been target number one for the conservative legal movement as an unjustified ruling that deprives the American people of their ability to legislate on this very important matter. 

 

WILL OTHER PRECEDENTS BE OVERTURNED?

 

HOOVER There are many other Supreme Court rulings that rely on similar reasoning to Roe, and there are some legal scholars who are now asking if other precedents will be overturned. Alito directly addresses this in his writing. Quote, “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”  However, Mary, you tweeted that there is, quote, “real tension” between the draft’s approach to constitutional rights and its reassurances about other decisions. Are other decisions related to issues like contraception, consensual sexual activity and marriage now at risk of being overturned? 

 

ZIEGLER I mean, I think not in the near term. But I mean, of course, Justice Alito himself wrote that Obergefell versus Hodges, the Court’s decision on same sex marriage, was wrongly decided and should be revisited, for reasons I think very similar to those laid out in the draft; that at the time the 14th Amendment was written no one contemplated a right to same sex marriage; that same sex intimacy was being criminalized. So I would not be surprised if further down the road, justices who have expressed profound concerns about substantive due process in other contexts, including particularly same sex marriage, where you have Chief Justice Roberts, Justice Alito, Justice Thomas, who all have voted in a particular way on that already, being open to revisiting those precedents, precisely because this is the methodology you see in this draft would generate a similar answer if you apply it to those matters. 

 

HOOVER Ed, you know, how can one contain or isolate this logic from influencing justices’ interpretations in future cases? 

 

WHELAN Well, look, I think the question is whether there is anything in this ruling that leads to overruling these other precedents. Look, I argued strongly against recognition of a constitutional right to same sex marriage. But I believe that if you look at the stare decisis factors, they apply very, very differently. Look, I think what we have here is a parade of horribles that people are trying to trot out in order to broaden the coalition, the political coalition, to try to intimidate the justices into not overturning Roe. 

 

HOOVER: Mary Ziegler, Ed Whalen, thank you for joining me on Firing Line. 

 

WHELAN: Thanks.

 

ZIEGLER Thanks for having me.