Roe v. Wade live updates: 'Unenumerated rights,' the 14th Amendment and how Roe connects to other privacy issues

Published May 5, 2022 at 8:03 AM EDT
People hold up cardboard cutout of Supreme Court justices as they protest Tuesday in New York in reaction to the leak of the U.S. Supreme Court draft abortion ruling.
Bryan R. Smith
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People hold up cardboard cutout of Supreme Court justices as they protest Tuesday in New York in reaction to the leak of the U.S. Supreme Court draft abortion ruling.

Democrats increasingly are warning that the reversal of Roe v. Wade could threaten an array of rights besides abortion, including marriage equality and birth control. They point to the legal reasoning in Justice Alito's draft opinion.
Here's what we're following:

Georgia has primary elections coming up on May 24, and the reverberations of the draft Supreme Court ruling are already apparent. Democrats are trying to use the potential reversal of Roe v. Wade to energize voters, while Republican candidates for governor all say they'll pursue a full ban on abortion.

Pop star Olivia Rodrigo took a break from her concert last night to speak out about protecting the right to legal abortion. “Because we’re in D.C., I couldn’t pass up the opportunity to say how heartbroken I am over the Supreme Court’s potential decision,” Rodrigo said.

One reason such a ruling would have a big, immediate impact: trigger bans. "A trigger ban is an abortion ban in waiting, essentially," says an analyst with an abortion-rights group. If Roe is overturned, such laws would ban nearly all abortions in 13 states within a month.

Politics

Stacey Abrams is asking people to donate to abortion funds, not just her campaign

Posted May 5, 2022 at 11:40 AM EDT
Stacey Abrams speaks into a microphone while seated on a stage in front of a "Robert Kennedy Human Rights" backdrop.
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Stacey Abrams speaks onstage during the 2021 Robert F. Kennedy Human Rights Ripple of Hope Award Gala on in December 2021 in New York City.

Stacey Abrams, Georgia's Democratic gubernatorial candidate, briefly pivoted her fundraising efforts in light of the leaked Supreme Court draft opinion. On Wednesday she asked her supporters to donate not to her campaign, but to abortion-rights groups working in the state.

Abrams — who helped turn Georgia blue in the 2020 presidential election after narrowly losing her last governor's race in 2018 — is continuing to solicit donations for the Feminist Women's Health Center, SisterSong, Planned Parenthood Southeast, Access Reproductive Care Southeast and NARAL Pro-Choice Georgia.

“We know that no one individual, campaign or organization can guarantee reproductive choice on their own,” Abrams’ campaign wrote in a fundraising email. “We can only win this fight by uniting and doing the work together.”

In a tweet later that night, Abrams thanked the more than 187,000 supporters who have invested in her campaign so far and urged them to consider donating to the reproductive freedom organizations as well.

Abrams, who is running unopposed in the May 24 Democratic primary, has raised large sums of money for causes as well as her own candidacy.

Her campaign announced on Wednesday that it had raised $11.7 million in the three months ending April 30, the Associated Press reports. She said she has more than $8 million cash on hand, a smaller sum than that reported by Republican Gov. Brian Kemp, who is running for reelection.

Kemp raised $2.7 million during this same period, limited by a state law that prohibits sitting officeholders from accepting contributions while state lawmakers are meeting.

As the AP explains, Kemp sought to use a leadership committee — a state fundraising vehicle that allowed him to collect unlimited contributions and coordinate spending with his campaign. Both Abrams and Kemp's Republican opponent, former U.S. senator David Perdue, sued over the committee on the grounds that it was unfair for him to be able to collect large sums while the two of them were barred from doing so until after their party primaries.

The Atlanta Journal-Constitution also notes that The Fair Fight Action political organization she founded has raised more than $100 million since 2019. The voting rights organization made several $10,000 contributions to abortion rights groups on Wednesday as well.

Abrams told the AJC that her campaign would “absolutely lean into and lead on that issue."

“If I want to be the governor of one Georgia, that means I’ve got to govern for the women of Georgia,” she said. “And the women of Georgia by and large agree that their right to choose should not be stripped away from them.”

Law

Removing federal protection of abortion rights may spark new legal fights between states

Posted May 5, 2022 at 11:04 AM EDT
People gather Tuesday at Utah's state Capitol to rally in support of abortion rights in Salt Lake City.
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People gather Tuesday at Utah's state Capitol to rally in support of abortion rights in Salt Lake City.

If the Supreme Court overturns Roe v. Wade, abortion law soon could be in the hands of states. And if that happens, roughly two dozen states are expected to ban or severely curtail abortion.

Some lawmakers also are trying to limit patients' options even in states without such restrictions. Several weeks ago, for instance, a Missouri state lawmaker introduced a bill that would let private citizens sue someone who helps a person cross state lines to obtain abortion care.

Such legislation raises a number of legal questions, NYU law professor Melissa Murray tells Morning Edition.

"The Supreme Court suggested that returning this to the states will settle this fraught conflict over abortion ... but it seems like it's really just going to exacerbate already existing conflicts and perhaps provide new conflicts that we haven't yet seen," she says.

Here are some of those battle lines (you can listen to the full interview here):

Can your state prohibit you from accessing care somewhere else? Individuals have "the right to travel," or move freely within various states. Murray says that there are some limitations, but that the idea of one state precluding someone from getting treatment in another state — or "basically imposing their public policy on the other state" — goes beyond existing limits.

She adds that many people don't realize that when the Supreme Court struck down a ban on interracial marriage in Loving v. Virginia in 1967, it was also striking down a law that made it a crime for people to leave the state to "transact interracial marriage elsewhere." Proposed laws like the one in Missouri are borrowing a page out of this same playbook, according to Murray, which raises the question: If another state offers a benefit your state does not, can yours prohibit you from leaving in order to seek that benefit, if you plan to return?

What does it mean to help someone cross state lines? That could mean driving someone to obtain an abortion in a more hospitable state, or potentially even donating money to an abortion fund that helps people do so. Murray says the latter could raise First Amendment issues around prohibiting that kind of assistance and, by extension, expression.

Some companies are offering to cover travel costs for employees seeking abortion care. Murray says that's legal for now, but that could change if terms like the one in this proposed law very broadly construe what it means to assist someone. That could be seen as a violation of corporations' rights to use their money how they choose. Murray points to Citizens United v. FEC and the idea that corporations can donate money as an expression of speech — and says that this too could become a First Amendment issue.

Would states be allowed to send and receive abortion medication through the mail? Some states are trying to minimize access to abortion medication, which Murray says raises questions in the realm of administrative law. While the Biden administration has rolled back the restrictions enacted by the Trump administration, Murray notes that individuals states can take action through their own administrative agencies that regulate the distribution of pharmaceuticals within their borders.

They potentially could limit those kinds of pharmaceuticals from coming in from other states, she says. And it's possible that a majority-conservative Congress could pass a law prohibiting the use of the mails to distribute abortion medications. That calls back to the Comstock Act of 1873, which prohibited the postal service from transmitting articles for "immoral" purposes.

History

What it was like to get an illegal abortion before Roe v. Wade

Posted May 5, 2022 at 10:40 AM EDT

It has been almost 50 years since the Supreme Court decided Roe v. Wade and legalized abortion nationwide. Before Roe, abortions were stigmatized and often unsafe.

The numbers of illegal abortions each year ranged from 200,000 to more than a million before Roe, reports NPR's Nina Totenberg. In September, Tamara Keith, Totenberg and the NPR Politics Podcast looked back at America before Roe v. Wade.

In this NPR interview from 1973, a woman recalls what it was like to have an abortion before it was legal. She didn't want her name used.

NPR Politics Podcast

Listen to the rest of the NPR Politics Podcast episode on life before Roe v. Wade or read the episode transcript here.

Politics

Democrats in Congress are stuck again between angry supporters, immovable Republicans

Posted May 5, 2022 at 9:55 AM EDT
U.S. Sen. Maggie Hassan (D-N.H.) speaks at a news conference Tuesday about the leaked Supreme Court draft decision to overturn Roe v. Wade on the steps of the U.S. Capitol in Washington.
Kevin Dietsch
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Sen. Tina Smith, D-Minn., joins other Democrats to express their outrage at a news report by Politico that a Supreme Court draft opinion suggests the justices could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, at the Capitol in Washington on Tuesday.

Democrats are getting used to this kind of moment, part of a well-trod cycle. Their base has a demand. Democrats agree with the demand. Democrats promise action. Democrats don't have the votes in Congress to make good on that promise.

Since President Biden took office in January 2021, less than two years ago, this story has repeated several times with voting rights, police reform, climate change and spending on the social safety net. Now, it's abortion rights.

And some voters and activists are getting tired. Renee Bracey Sherman of the abortion-rights group We Testify was at the Supreme Court on Tuesday. She said she needed lawmakers to talk about what they're actually going to do to protect abortion rights.

"We asked for the president of the United States to come out and speak to all of us and talk about the abortion crisis and give us a plan of what he is going to do," Bracey Sherman said. "Until he does that and actually acts on that plan, it is not enough."

She said that was true for all politicians who say they support abortion rights.

Other activists are venting similar frustrations.

"Time and time again, we have seen Democrats use abortion rights as a campaign issue and fail to deliver on their promises to protect and expand our right to reproductive freedom," said Analilia Mejia, co-executive director of the Center for Popular Democracy.

"We deserve leadership that represents the vast majority of Americans who believe abortion should be accessible and affordable to all who require this critical health care."

Their calls range from abolishing the filibuster and passing federal abortion protections to expanding the Supreme Court to allow Democrats to appoint new justices and shift the balance of power to the political left.

But there's little that Democrats can do right now to address any of it. Read the full story for why, and the steps that they are planning to take in Congress.

Law

Democrats warn that an end to Roe could threaten other freedoms. Here's why

Posted May 5, 2022 at 9:35 AM EDT
Democratic senators stand outside the steps of the U.S. Supreme Court, as Senate Majority Leader Chuck Schumer speaks at a podium.
Alex Wong
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U.S. Senate Majority Leader Sen. Chuck Schumer (D-NY) speaks about the leaked Supreme Court draft decision to overturn Roe v. Wade as Democratic Senate members listen on the steps of the U.S. Capitol in Washington, DC on Tuesday.

In the wake of the draft opinion leak, Democrats increasingly are warning that the reversal of Roe v. Wade could threaten an array of rights besides abortion, including marriage equality and birth control.

President Biden has said he believes the reasoning in the draft decision "would mean that every other decision related to the notion of privacy is thrown into question," while Vice President Kamala Harris has said the end of Roe would constitute "a direct assault on freedom."

How are gay rights and birth control connected to abortion, legally?

NPR political correspondent Danielle Kurtzleben explains that a central idea in Roe is that abortion is an "unenumerated right," meaning the Constitution protects it even if it doesn't explicitly say so. It's also protected by the 14th Amendment, which the Supreme Court has used to protect peoples' right to privacy in other forms.

In his draft opinion, Justice Samuel Alito argues that when the 14th Amendment was passed back in 1868, American law did not recognize abortion as a fundamental right, and therefore the right to access one is not protected.

That logic could carry over to other rights: At the time that amendment to the Constitution was written, same-sex and interracial couples couldn't legally marry, and birth control was being criminalized, legal historian Mary Ziegler explains.

"The logic is, if that's how we determine where our constitutional rights begin and end, there's no reason that would stop with abortion," she says.

Alito does explicitly write that abortion is separate from those other rights because it has to do with fetal life, Kurtzleben notes, but that doesn't mean that the court can't change its mind in the future.

So how politically useful is this message for Democrats, who are not expected to do well nationally in the upcoming midterms?

On the one hand, Kurtzleben says, abortion-rights advocates have criticized Biden and others for seeming reluctant to talk about abortion (or even say the word) and could see grouping abortion in with other rights as an attempt to change the subject. On the other hand, situating abortion as part of a broader landscape of fundamental and interconnected rights could open the eyes of voters who don't see abortion as a personally relevant issue.

While it's not clear how this will play out at the polls, Kurtzleben notes that an end to Roe would have much more immediate consequences: Certain states would significantly restrict access to abortion well before November.

Access

Here are the states that have a 'trigger law' — an abortion ban ready to go if Roe fails

Posted May 5, 2022 at 9:04 AM EDT

If Roe v. Wade is overturned, legislating abortion access would fall to individual states — and it likely would vary significantly from state to state.

Some states with Republican leaders already have passed what are called "trigger laws," legislation that would ban or severely curtail abortion in the state if the Supreme Court votes to end Roe v. Wade.

"A trigger ban is an abortion ban in waiting, essentially," says Elizabeth Nash, a state policy analyst with the Guttmacher Institute, a research group that supports abortion rights.

Thirteen states currently have trigger laws, reports NPR's Sarah McCammon. Listen here to her report on trigger laws on All Things Considered.

All of these laws would go into effect within a month if Roe is overturned, with some banning abortion in the state as quickly as a day, says Nash. Another dozen or more states have pre-Roe abortion bans still on the books, or have bans and restrictions tied up in courts that could go info effect as well.

Here are the 18 states that have trigger laws to ban abortion or have pre-Roe abortion bans still on the books. You can see the states with trigger laws here.

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Experts say "about 26 states are likely or certain to ban most abortions if Roe falls," reports McCammon. "They estimate 36 million women of reproductive age would be in a state without abortion access."

After former President Donald Trump successfully added three conservative justices to the Supreme Court,liberal states also began preparing for the possible end of Roe.

Those states are taking steps to protect abortion access not just for their residents, but also for residents traveling from other states where abortions will no longer be legal and safe. Close to 20 states have fairly solid protections for abortion access currently, reports McCammon.

Music

Olivia Rodrigo voices support for abortion rights onstage during her concert in D.C.

Posted May 5, 2022 at 8:48 AM EDT

Pop star Olivia Rodrigo spoke out about protecting the right to legal abortion in Washington, D.C. last night. And she wasn't at a rally for reproductive rights — she was onstage in the middle of her own concert.

The 19-year-old is touring North America and Europe performing songs from her wildly popular debut album, Sour.

According to videos and social media posts from audience members, Rodrigo took a moment between songs to address the topic, which is top-of-mind for many in the wake of the leak of the draft Supreme Court opinion that calls for overturning Roe v. Wade.

“Because we’re in D.C., I couldn’t pass up the opportunity to say how heartbroken I am over the Supreme Court’s potential decision,” Rodrigo said, as the crowd began to cheer.

"Our bodies should never be in the hands of politicians," she added. "I hope we can raise our voices to protect our right to have a safe abortion, which is a right that so many people before us have worked so hard to get.”

Rodrigo's comments come a day after fellow singer-songwriter Phoebe Bridgers shared that she had had an abortion last fall and urged people to donate to abortion funds in states that already have restricted access to the procedure.

International

What overturning Roe v. Wade could mean for the rest of the world

Posted May 5, 2022 at 8:03 AM EDT
A person wearing overalls clings to a lightpost holding a sign that says "My body, my choice" during a rally outside of the U.S. Supreme Court.
Alex Wong
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An activist holds up a sign during a rally in front of the U.S. Supreme Court in Washington, D.C. on Tuesday in response to the leaked Supreme Court draft decision to overturn Roe v. Wade.

The leaked draft opinion from the Supreme Court indicating it could overturn Roe v. Wade means that millions of women in more than half of U.S. states could either lose the ability to get an abortion or see their access drastically rolled back.

It would be a major shift in abortion law in the U.S., but human rights advocates say such a move could also weaken reproductive rights across the world.

The move would "damage the global perception of the United States," Amnesty International's secretary-general, Agnès Callamard, said in a statement. It would also "set a terrible example that other governments and anti-rights groups could seize upon around the world in a bid to deny the rights of women, girls and other people who can become pregnant," she said.

Many countries, including some with large Catholic populations, have actually been making it easier to get an abortion in recent years.

Ireland legalized abortion in 2019, Argentina legalized it in 2020 and Mexico's Supreme Court voted to decriminalize abortion last year. In February, Colombia's highest court legalized abortion until 24 weeks of pregnancy.

But with the U.S. poised to upend the nearly half-century-long constitutional protection for abortions, advocates warn that repressive governments across the globe could use the move to justify future crackdowns on their citizens.

Click here to keep reading.

Elections

What the potential fall of Roe could mean for Georgia's upcoming primaries

Posted May 5, 2022 at 8:03 AM EDT
A large crowd of protesters carrying signs gathers outside of a state capitol building with a gold dome.
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Demonstrators rally in support of women's reproductive rights at the Georgia State Capitol on in October 2021 in Atlanta, Georgia. The state's midterm primary election day is May 24.

If the Supreme Court's draft opinion holds, and Roe v. Wade is overturned, decisions about abortion access will be left up to each state.

Morning Edition looked at how a potential reversal on federal abortion rights is playing out in a key swing state: Georgia, which holds its primaries on May 24. WABE's Sam Gringlas joined the show from Atlanta to discuss how lawmakers and activists are reacting to the draft opinion, and what it could mean for the midterm elections.

Listen here or read on for details.

If the draft decision holds, and federal abortion protections are reversed:

The Georgia legislature, which is solidly red, passed a bill in 2018 banning abortions after roughly 6 weeks. That law would take effect pretty quickly if Roe is struck down, Gringlas says.

Even if Democratic gubernatorial candidate Stacey Abrams wins her campaign, he adds, there's not a lot she can do to undo laws already on the books.

Republicans have poured resources into Georgia's State House races for more than a decade, and Democrats now admit that for a long time they didn't really invest enough in the state legislature.

Jessica Post, who runs the national Democratic Legislative Campaign Committee, told Gringlas that while abortion rights supporters may be focused on donating to abortion funds, she would also encourage them to give to Democratic state legislative candidates "because they will be the ones deciding the fate of abortion in your state."

As the midterm elections approach:

Democrats think the court's ruling, if it's similar to the leaked draft decision, could energize voters.

Democratic State Sen. Jen Jordan, who is running to be Georgia's next attorney general, tweeted that if the ruling holds Georgia "will be the next battleground for reproductive freedom." Gringlas spoke to a woman who signed up to volunteer with Jordan's campaign this week, and already has spent time reaching out to women voters.

Meanwhile, at the Republican debate for lieutenant governor, candidates were asked if they were satisfied with the state's existing abortion restrictions — and all said they want to ban the procedure.

Former U.S. senator David Perdue, who is challenging sitting Republican Gov. Brian Kemp, says he would pursue an all-out ban. Kemp hasn't yet weighed in. Gringlas says that while he might feel compelled to join the calls for a total ban, that stance could bite him in November, when he would need a broader swath of voters in order to keep his seat.

It remains to be seen how much a potential reversal of Roe will actually move the needle on Election Day, Gringlas says: "Persistent inflation or some other issue could totally outweigh everything else in the end."