If Roe v. Wade falls, what happens next in America?

Jordan The news broke on Monday night. It was shocking, but if you’ve been paying attention, it’s not all that surprising.

News Clip …demonstrations sprang up almost instantly in Washington and elsewhere as people either celebrated or protested word the court could strike down Roe v. Wade…

Jordan On one hand, it seems impossible that America, our neighbour and closest friend, could be sliding backwards so rapidly when it comes to a woman’s right to choose. On the other hand, using rapidly in that sentence is a stretch. It’s not like there haven’t been alarm bells ringing in the USA for a long time now.

Brett Kavanaugh Clip …it is an important precedent of the Supreme Court, by it, I mean Roe v. Wade and Planned Parenthood vs. Casey…

Amy Coney Barrett Clip …I can’t precommit or say yes, I’m going in with some agenda because I’m not. I don’t have any agenda. I have no agenda to try to overrule Casey…

News Clip …in Texas, the state has made it illegal to terminate a pregnancy after about six weeks. Private citizens are also allowed to sue abortion providers or anyone who helps facilitate the medical procedure…

Jordan If the leaked Supreme Court opinion is confirmed in its final ruling, this will be the culmination of a threat to women’s rights that has been growing for years and years, not the start of some brand new era. But how did it come to this in a country where 70% of the population supports a woman’s right to make her own decisions? How did this come from a court featuring justices who had previously declared Roe v. Wade to be settled law? What does this mean for abortion access on the ground across America? And if this right can be taken away, what other rights come next?

I’m Jordan Heath-Rawlings, this is The Big Story. Carter Sherman is a senior reporter for Vice News with a focus on gender, reproductive health and sexual violence. Hi, Carter.

Carter Sherman Hi there.

Jordan What’s the mood on your beat these days?

Carter Sherman Well, it has certainly been a pretty wild week. I don’t think anybody was anticipating that news about how the Supreme Court would rule on Roe v. Wade would come down on a Monday evening from Politico, of all places. So I think we’re all trying to wrap our heads around what this means.

Jordan Maybe just to start with, because I think there’s a ton of confusion around this leak, the decision that leaked and how it was reported, what actually happened this week in terms of changes to the law and what comes next in this process?

Carter Sherman What’s really important for folks to know right now is that the law has not changed. What happened this week is that Politico reported a leaked draft opinion from the US Supreme Court where five justices agreed to overturn Roe v. Wade. And Justice Samuel Alito put out a majority opinion draft, sort of outlining the reasoning he thinks behind why Roe v. Wade should be overturned.

Jordan How usual is it or unusual is it, I guess, for these kind of opinions to get out there via a third party like Politico?

Carter Sherman Oh, this is completely unprecedented. I think that’s why everybody has been so overwhelmed and shocked that this happened. And there’s been kind of a division between coverage of what was actually in the draft opinion and coverage of the leak. How did this get leaked? Who leaked it? Why? Those are all questions that are still up in the air.

Jordan Maybe as we start to explore the legislation and the law. I know that this sounds basic. Bear in mind you’re talking to a Canadian audience. I think a lot of people kind of use Roe v. Wade as shorthand for legal abortion. Can we start with just what is Roe v. Wade actually protecting and what would actually happen if it disappeared?

Carter Sherman So Roe v. Wade was a Supreme Court decision that came down in 1973, and that legalized abortion nationwide. And it’s since been built upon by other Supreme Court decisions, including most notably 1992’s Casey V. Planned Parenthood, which is also one of the decisions that could be overturned if this draft opinion becomes law. Basically, what Roe and Casey do is they say that States cannot ban abortion prior to fetal viability, which is the point in pregnancy when a fetus can survive outside the womb on its own. And that typically happens at about 24 weeks into pregnancy. So if Roe and Casey go, States would be able to freely regulate abortion as much as they see fit. And without that sort of floor, we know that roughly half of the United States would ban almost all abortions.

Jordan Does that happen immediately? Again, this is my Canadian confusion over how the Supreme Court operates. But I know this is a draft opinion, but if the actual decision comes down, as this is reported, would abortion immediately become illegal in some states?

Carter Sherman Abortion would almost immediately become illegal in some states. There are at least 13 states that have what are known as trigger laws, which are laws that say without Roe, we are going to ban abortion. And then there are also a number of States that have laws that are on the books from before Roe v. Wade that are just unenforced right now. And those are also abortion bans that without Roe, could be used once again to restrict abortion.

Jordan I see. And this isn’t happening in a vacuum. Maybe you can provide kind of some context before we get more into the decision. What’s the climate around a woman’s right to choose in America been like over the last five or ten years? What’s it been like to cover this issue recently?

Carter Sherman It has definitely been a very twisty roller coaster ride. I have been covering abortion rights for a little over six years now, and I actually used to be a reporter in Texas. So I covered abortion in Texas, which obviously has been the site of a lot of fighting over abortion. To kind of really give you the bird’s eye view here. Over the last ten years, abortion opponents took this sort of death by 1000 cuts approach to eradicating abortion access. So for many years, they were passing these laws that would just hack away at abortion access. They would try to close clinics or they would try to make it more difficult for patients to actually get an abortion by, say, making them wait up to 72 hours for the actual procedure. Then what happened in the last five years or so is, well, Donald Trump got elected, and after that, a lot of abortion opponents abandoned that death by 1000 cuts approach for more of a flamethrower approach, I guess you could say.

And what they did is they started passing total abortion bans. So they started saying actually, no abortion after 15 weeks, no abortion after eight weeks, no abortion after six weeks. All of that flies in the face of Roe because Roe and Casey once again say that States cannot totally ban abortion prior to 24 weeks or the point of fetal viability, which is typically at 24 weeks. And those laws have been halted by court challenges. But the idea has been for the antiabortion movement that they’re going to throw as many abortion restrictions into the US legal system as possible. And those restrictions are going to work their way up through the court system and potentially get all the way to the Supreme Court. That would give the Supreme Court a chance to potentially overturn Roe and Casey, which is exactly the situation that we’re in now.

Jordan Can you give me an example of how this kind of flamethrower approach actually works on the ground? And I know there are battles going on in many States and you’ve covered a bunch of them. But since you mentioned Texas, what specifically happened in Texas last year and how has that been kind of ground zero for what’s happened elsewhere since?

Carter Sherman Last year Texas did something that was incredibly innovative. And from the perspective of folks who oppose abortion rights, really smart. Like I said, there have been all of these States that have tried to pass six week, eight week abortion bans. And those laws, for the most part have said that they would be enforced by the government, which is to say those laws said if you’re an abortion provider and you do an illegal abortion, we will throw you in jail or we will fine you tens of thousands of dollars. The Texas law took a different approach. The Texas law said we are going to ban abortion as early as six weeks into pregnancy. And instead of having the government enforce this law, we will instead allow people to sue one another over illegal abortions. So if you are a person in Texas and you learn that someone has got an abortion that is passed six weeks, that is illegal under Texas law, you can sue anyone who quote aids or abets them in getting that abortion. Now, not many people have actually even sued over this law, but the fear of those lawsuits and the actual cost of those lawsuits have meant that abortion providers in Texas have not been doing abortions past that six week mark.

Jordan I’m just going to take a moment to zoom out here and say that sounds incredibly dangerous, pitting citizens against one another for money to essentially rat people out.

Carter Sherman I think it speaks to a culture of vigilanteism in the United States that I think it’s possible we’ll start to see in more and more laws. Letting people sue one another over laws that they don’t agree with, that could be applied to a lot of different cases. What if California decides to enact a Texas style ban but for gun rights and so people can sue one another in order to enforce a gun law? I think you’ll see a lot of different States use this sort of mechanism to just start enforcing things that they don’t like if this type of law could stand. And that has been an argument that’s been brought up by a lot of people, including at the US Supreme Court, which did hear a case over the Texas band last year.

Jordan I’m so tempted to go down this road and create an entirely different episode because that approach is fascinating. But to stay focused on the big picture, you kind of mentioned that they’ve been chipping away and chipping away, and then they’ve started with the flamethrowers. How long has the ultimate goal been to overturn Roe, and how has the antiabortion movement built towards that?

Carter Sherman Overturning Roe has been the ultimate goal of the antiabortion movement basically since Roe was decided in 1973. And the antiabortion movement is incredibly disciplined and has built this grand ground army across the United States in support of that goal. I actually a couple of years ago, spent some time at an antiabortion boot camp, so to speak, in Texas, where people were teaching young College students how to be effective antiabortion advocates. And these young people are very powerful warriors for their cause. I also go almost every year to the March for Life, which is the largest anti abortion annual gathering in the United States. And when you go there, that place, first of all, filled with young people. And second of all, I will ask them, why are you here? What are you doing? And almost to a person, all of them will say, I want to make abortion not only illegal, but unthinkable. I have been to a lot of Liberal protests covering those protests, and you almost never find that kind of message discipline among Liberals who are protesting. It’s just this movement has been very honed towards a very specific goal for half a century now, and they are very much on the verge of achieving it.

Jordan Which brings us to the leak via Politico of the draft opinion on Monday night. When the draft leaked, what was your very first reaction? How did you find out?

Carter Sherman It’s actually a little bit funny how I found out about this leak. I was actually supposed to be on vacation for most of this week, and I had not looked at my Twitter for two weeks or so because I was on vacation and I happened to log in while I was jet lagged after getting back from Europe. I wanted to look at Twitter because the Met Gala was going on, and I wanted to look at the photos of the dresses. So what was supposed to be sort of a relaxing night turned into not quite that. But I saw the news of the leak almost immediately on Twitter, and I was not surprised by the content of the draft opinion. I think anybody who has been covering this field or who works in and around abortion for or against, has known that Roe v. Wade has been endangered for quite some time. It was shocking to me to see it be leaked in this way. I think the Supreme Court is an institution that very much values its Privacy, its secrecy, its traditions. And for those traditions to get broken in this way is just… I can’t understate how wild that is.

I think I was also quite struck by how many very common antiabortion talking points Justice Alito hit throughout this opinion. And I was also struck by if this draft opinion becomes law, his reasoning could put many other types of rights at risk. The right to birth control could be at risk. The right to gay marriage could be at risk. The right to same sex intimacy itself could be at risk if Justice Alito’s reasoning becomes law.

Jordan I’m going to ask you to go further on that in a minute and kind of explain it. But first, because we’re talking about the actual opinion, were you surprised by the way the justices lined up I guess?

Carter Sherman No, I was not at all surprised by the fact that five justices agreed that overturning Roe was a good idea. I think everybody who works in this field or who reports on this field expected these five justices to line up the way they did. But we’ll see if they actually agree with Alito’s reasoning. I mean, this is a draft opinion, and although these justices might support overturning Roe, they might not agree with Alito’s reasoning for why.

Jordan Two recently appointed Republican Supreme Court justices, Brett Kavanaugh and Amy Comey Barrett, did they both not say that Roe v. Wade was settled law during their confirmation hearings? I mean, I remember a lot of people accusing folks who were worried about the future of Roe of being hysterical precisely because they said those things as they were trying to get on the court. Right? Am I wrong?

Carter Sherman I think confirmation hearings are a very bizarre animal. And in confirmation hearings, justices essentially try to avoid saying how they would rule on any particular case. Of course, almost every justice now gets asked about Roe v. Wade because it’s so controversial. And in fact, Amy Coney Barrett pointed out that she was getting a lot of questions about Roe, and for her that indicated that Roe was not a totally settled area of law. Now the justices tend to say that Roe is precedent, which it is, and they would treat it with the respect that it deserves as precedent. But that doesn’t mean that these justices say, no, I will leave Roe alone. And I think most people did not necessarily expect an overwhelmingly conservative Supreme Court to leave Roe alone.

Jordan Is there any recourse now for the Democratic Party to stop this? Again, assuming that the draft opinion is actually the ruling, do they have any options?

Carter Sherman Well, the Democratic Party has told people to essentially get out and vote in the midterms, which is an interesting bit of advice, given that the decision is probably expected to come down for real in June and the midterms are in November. So I’m not sure what voting in November would necessarily mean for the Supreme Court. I don’t think that there is necessarily a way for people to change the minds of the Supreme Court justices. The Supreme Court justices have the ability to rule in this case, and they will rule in some way, and they will change American life in some way. I think what’s been interesting to me in covering abortion rights is that people have not a lot of understanding of how abortion law and abortion politics and abortion science all work and how they all work together. And so as someone who thinks that this is a very important piece of American life to pay attention to, I am glad that folks are paying attention and that they have a lot of thoughts on it at this time.

Jordan How likely is it that the actual ruling coming down could be different from the draft opinion? I guess we don’t know in terms of the past because this has never happened before. But is there a sense that this is not finished?

Carter Sherman I think this is one of the questions that is really occupying people who are trying to figure out why this document was leaked. Was this document leaked in some way to try to change the minds of the justices? And I don’t know how much this draft opinion is going to change between now and when the actual ruling comes out. It is typically understood that the Supreme Court justices circulate opinions amongst themselves in order to sort of convince one another or puzzle out their reasoning for whatever case they’re working on. And we might see that the final decision does look quite different than this draft opinion. But I would be surprised if abortion law really gets affirmed and remains the same at the end of this case.

Jordan Let’s get back into that precedent then. You mentioned that because of the way the draft opinion reads, other rights could also be at stake. Can you explain the legal angle of that? How does that work?

Carter Sherman So the way we get to a right to abortion in the United States is through the right to Privacy, which is not explicitly spelled out in our Constitution. Instead, over many decades, the Supreme Court has put together sort of a Jenga Tower of legal reasoning around the existence of this right to Privacy and around their ability to pull other rights that are not enumerated in the Constitution but that they believe are there anyway. And Roe lies in a sort of line of cases that if you were to suddenly pull out Roe and say it’s not good law, you would be endangering those other cases. Some of those cases include Griswold V. Connecticut, which expanded the rights of people to access contraception. There are some other cases that also deal with rights that are not explicitly enumerated in the Constitution, like Lawrence v. Texas and Obergefell v. Hodges, which respectively got rid of Sodomy laws and legalized gay marriage nationwide. So if we take out Roe and say, actually the only rights that exist in the Constitution are the ones that are explicitly spelled out and the right to Privacy is no good, you start to endanger people’s ability to get birth control, to have intimacy with people of the same gender, to get married to people of the same gender, really to live their sexual lives the way that they may want to.

Jordan I’m going to ask this, and I don’t want to do this lightly, but it seems an appropriate time for it. In the wake of this draft and the other recent laws surrounding abortion that we’ve touched on, there’s been lots of comparisons on social media and just people talking about the decline of the United States, and it turning into Gilead from The Handmaid’s Tale, from your point of view of looking at what this will actually mean on the ground, how much of that is an exaggeration? How much of that is a really scary possibility?

Carter Sherman When you see those images of people protesting abortion rights and they’re in the Handmade sale get up, I can see how it’s a very powerful tool. What I try to keep in mind is that Margaret Atwood said that everything that she depicts in the Handmaids Tale is something that did happen in some society somewhere. And I think we should take that to mean that if abortion rights get rolled back in the United States, it’s not some kind of fictional fantastical thing. It’s actually something that happens all the time and has happened all the time throughout history. To leave people without the ability to end the pregnancies the way they want to.

Jordan I will tell you that we are almost always about three to five years behind political trends in the United States. And in the wake of this decision, Canada’s federal Conservative Party which is having a leadership race right now. So a lot of people vying to lead that party. All of them saying no, abortion law is settled in Canada. We will not reopen this debate. We have no plans to pass any laws or legislations, et cetera, et cetera. My question for you is, if you could go back three to five years and kind of make people aware of what was about to happen, what would you say? What advice would you have for Canadians who are looking at their own leaders right now and thinking like ‘oh phew, okay, well, they’re not going to touch it’?

Carter Sherman I think I was doing that three to five years ago. I’ve been covering abortion rights this entire time, and I have been trying to raise the profile of the fight over abortion rights and explain to people where this is likely headed. Regardless of where you stand on abortion rights, people should understand that this is something that impacts everybody. It’s not a right that is limited only to people who can get pregnant. It is a right that impacts everybody who can get other people pregnant. And people should be paying attention to whether or not they are able to reproduce or not reproduce or parent or not parent in the ways they want to be able to do that. And they should be looking to see whether or not their government is actually protecting those rights or whether or not that government is interested in changing their rights in a way that they don’t agree with.

Jordan As we wait for the official ruling, which, as you mentioned, might come in early June, what’s happening to fight back on the ground there? Is there organizing going on? What do you expect to see in the month or so leading up to a real decision?

Carter Sherman We’re already seeing plenty of protests here in the United States over this decision, and we’re seeing a lot of people who are very angry and who are trying to use this to encourage people to vote, to use this to encourage people to raise money and donate to things like abortion funds or Democratic politicians. I think we’ll likely see that continue. One of the things that I’m really interested in seeing is whether there’s still going to be sustained outrage when the actual decision on Roe v. Wade comes down. We know that most Americans actually support keeping Roe v. Wade, but they don’t necessarily vote like they care. And I think there’s a possibility that people get very upset about this leaked draft opinion now and then when the decision actually comes down, they say, oh, well, we knew that already, and there is actually less support for trying to do something about it.

Jordan Carter, thank you so much for this. I feel like I understand the issue a lot better now.

Carter Sherman Thank you so much for having me on to speak about it.

Jordan Carter Sherman, senior reporter at Vice News. That was the big story for more, you know where to go, the thebigstorypodcast.ca or Twitter at @TheBigStoryFPN. You want to talk to us, you should know where to go for that too. We have an email, hello@thebigstorypodcast.ca [click here!].

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Thanks for listening, I’m Jordan Heath-Rawlings, we’ll talk tomorrow.

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