The Supreme Court Seems Likely To Overturn Roe v. Wade : The NPR Politics Podcast According to a draft opinion obtained by POLITICO, there is a five-justice conservative majority ready to strike down Roe v. Wade, the case which established a constitutionally-protected right to an abortion. While, in theory, some justices could change their views before the ruling is formally issued, the leak signals a major shift in women's rights in the United States — and in the norms and reputation of the Supreme Court.

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This episode: White House correspondent Scott Detrow, congressional correspondent Susan Davis, and national justice correspondent Carrie Johnson.

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The Supreme Court Seems Likely To Overturn Roe v. Wade

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SCOTT DETROW, HOST:

It's the NPR POLITICS PODCAST. I'm Scott Detrow.

(SOUNDBITE OF PROTEST RALLY)

DETROW: What you're hearing is a protest that took place outside the Supreme Court in Washington, D.C., this morning. Both abortion-rights supporters and opponents were there, as were our colleagues Danielle Kurtzleben and Barbara Sprunt, who gathered the sound. The protesters are there, of course, because it looks like the Supreme Court is on the verge of completely overturning Roe v. Wade, the landmark ruling that established a constitutional right to an abortion nearly 50 years ago. We know this because a draft of the opinion was leaked to Politico. It's an extraordinary leak. Chief Justice John Roberts confirmed today that it was real, but stressed the draft is not final. Robin Galbraith (ph) is a mother of two from Maryland. She was protesting outside the court this morning and supports abortion rights.

ROBIN GALBRAITH: I've been fighting this since I was 20. You know, it's been decades now. I volunteered for Planned Parenthood. I've been a teacher for decades. I know how much care children need. And that is my main focus in life. And abortion is an important part of making sure that we are able to care for children properly.

DETROW: Others were there to cheer the draft opinion and what would likely come next, the severe restriction or in many cases, likely, an elimination of abortion rights. Courtney Konig (ph) from Oklahoma was one of those people. She talked about how she felt when the draft opinion leaked last night.

COURTNEY KONIG: I reacted with some excitement. At the same time, I'm well aware of the political games being played, and when things get leaked early, a lot of times I think that's a test to see how much of a pressure-valve release we can have so that we see what the reaction may be later on.

DETROW: President Biden spoke about this today before leaving on a trip for Alabama.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT JOE BIDEN: The idea that we're going to make the judgment that is going to say that no one can make the judgment to choose to abort a child based on a decision by the Supreme Court I think goes way overboard.

DETROW: Fellow Democrat Chuck Schumer, the Senate majority leader, was much more blunt.

(SOUNDBITE OF ARCHIVED RECORDING)

CHUCK SCHUMER: To the American people, I say this - the elections this November will have consequences because the rights of a hundred million women are now on the ballot. To help fight this court's awful decision, I urge every American to make their voices heard this week and this year.

DETROW: Schumer went on to say the Senate will vote on legislation that would create a federal right to an abortion, though that legislation would almost certainly fail. Meanwhile, Senate Minority Leader Mitch McConnell was critical of the leak itself.

(SOUNDBITE OF ARCHIVED RECORDING)

MITCH MCCONNELL: This lawless action should be investigated and punished to the fullest extent possible - the fullest extent possible. If a crime was committed, the Department of Justice must pursue it completely.

DETROW: So there is a lot to talk about today. And to do that, we are joined by Susan Davis and Carrie Johnson. Carrie, of course, covers justice for us. And, Carrie, let's start with you. Chief Justice Roberts did confirm that this draft decision is authentic. He did add it is not the final version from the court. You know, this is a ruling that would fundamentally shift life in America. So help us understand what that means exactly, that this isn't the final version.

CARRIE JOHNSON, BYLINE: Yeah. It means that one or more of the justices who voted to uphold this Mississippi law that imposed a ban on abortions after 15 weeks could change their mind. Far less likely, one of the three liberal dissenting justices could change their mind. And John Roberts seems to have been attempting to try to carve out some position in the middle. That said, the feelings on this issue are so strong and most every justice has been on the record in one way or another about it, including on December 1 when oral arguments on this case occurred, that it's hard to imagine any major shifts at this point, in part because any changes might look political in nature.

DETROW: Yeah.

JOHNSON: It might look like after this leak that somebody changed their mind and hell and brimstone could come down upon them.

DETROW: And we'll talk more about the leak and the implications of the leak later. But it's fair to say, it seems like, from everything that we know about this case, about the justices, about the political climate, that the final ruling would very likely look an awful lot like what we're all reading today.

JOHNSON: At least the votes of the justices, Scott. You know, former President Donald Trump, when he was on the campaign trail, promised to appoint Supreme Court justices who would overrule the landmark precedent Roe v. Wade that's been on the books for almost 50 years and the follow-up precedent, Planned Parenthood v. Casey. So it shouldn't be a surprise that those justices, who were picked in part for that very reason, have cast their votes in that way. Of course, Justice Samuel Alito, who it looks like is writing the majority opinion for the court, has also been very vocal in terms of speaking and writing over the years, as has Clarence Thomas, on this issue of what they view - as Justice Alito wrote in this draft that Roe v. Wade was egregiously wrong and untethered from the Constitution.

DETROW: I mean, Sue, even given the baseline of the past six years or so of American politics, this is such an atomic bomb to drop on Capitol Hill. This is something...

SUSAN DAVIS, BYLINE: Yeah.

DETROW: ...That would fundamentally change rights for women in this country that have been in place for nearly 50 years. What has the reaction been like?

DAVIS: I mean, the word you heard a lot today is rocked. I think that applies across, you know, some Republican and all Democrats. I think I want to start with the two Republican women, Lisa Murkowski of Alaska and Susan Collins of Maine. These are the only two Republican senators who support abortion rights. And both of them voted for some combination of the conservative justices that would decide in favor of this ruling. And Murkowski said she was rocked by the draft, that it is inconsistent with how she believed justices would vote. Susan Collins said very much the same. Both women today spoke in support of legislation they introduced earlier this year that would codify the right to an abortion into federal law. I mean, Democrats have just exploded over this. I mean, this is the culmination of so many Democrats' worst fears.

DETROW: So how about Republicans other than Murkowski and Collins?

DAVIS: You know, it's really interesting. Republicans have chosen to really focus on the leak of the document and not on the substance. One aide that I talked to said that while this decision would be one that many Republicans support, they don't want to be seen as sort of celebrating a policy victory that isn't certain they even have yet.

DETROW: And let's just take a quick step back here. You mentioned Murkowski and Collins would be in support of some sort of law. That would be maybe 52 votes - still short of the 60 you would need to move forward. It is very clear that just like on every other vote over the last year and a half, Democrats do not have enough votes to change filibuster rules to pass it with a simple majority. Carrie, can you remind us what the United States would look like if Roe v. Wade is overturned, if this goes back to the state level. How quickly and how many Republican states would likely outlaw abortion or severely restrict it?

JOHNSON: I think something like a dozen states already have such laws on the books. Others would be invited - all but invited by the Supreme Court majority to pass onerous new restrictions on abortion and also maybe to attempt to pass outright bans in their states. This could look like the map we've been seeing all over the country of red and blue, where people seeking abortion procedures could have to travel very long distances and take a fair amount of time and resources to a state where they could get the procedure legally.

DETROW: I mean, Sue, this has been the story of the Biden administration, but I just can't get over not only the disappointments to progressives that has happened over the past few years, but a feeling of helplessness among Democrats on these existential questions like climate, like voting rights, now reproductive rights - things that are fundamental to their party identity. They control the White House, they control the House, they control the Senate and yet have just been handed loss after loss after loss in huge, huge ways in recent years.

DAVIS: Yeah, I mean, this is tricky. And we can talk more about the politics of it, but I don't think any of this cuts as cleanly or as neatly as we might expect it to. You know, I think a lot of the country looks at this and sees a court that might be poised to overturn this decision. And even though Democrats want to overrule it, they seem kind of powerless to do anything about that. And I don't know how voters absorb that. I don't know if they - you know, I think that there could be a lot of anger at Democrats that they didn't actually do more to do it. And I - you know, we talk a lot about the filibuster and supermajorities, but I don't know if that nuance kind of gets absorbed into the national electorate in the same way. And I think Democrats are seen as the party that would uphold abortion rights. And if this is going to take place and they can't do anything about it, I don't know what that means for them in November.

DETROW: Well, Carrie, Sue, how about the three of us think a little bit about what that means over the next break, and we'll come back, and we'll talk about it.

We are back. And, Carrie, let's just talk for a moment about the leak itself and just how remarkable it is that it even happened.

JOHNSON: Yeah, one of my sources told me he thinks it's an institutional catastrophe. Chief Justice Roberts, in his statement today, said he thinks it was an act of betrayal and perhaps intended to undermine the integrity of the court. He says that will not stand as long as he is in charge. And he's asked the marshal of the Supreme Court, a woman named Gail Curley, who normally provides security for the justices and other operations, to investigate the source of the leak. That said, this is not a national security issue. This is not classified information. So it doesn't seem like there's any crime here.

DETROW: I want to make one point here. And, Sue, I'm especially curious what you make about it. You know, Mitch McConnell today criticized this leak as an attempt of, quote, "mob rule." But if this ruling is issued, it would be the outcome of minoritarian rule. That's just a fact. You have three justices appointed by a president who lost the popular vote. They were confirmed by a Republican Caucus in the U.S. Senate, representing tens of millions of fewer Americans than their Democratic counterparts. And this is a ruling that would go against the wishes of the nearly 6 in 10 Americans who say that this procedure should be legal in most or all cases. A lot of polls consistently have the number at about 60% of Americans who feel that way.

DAVIS: Yeah, I mean, my one caution with polling on this - and I think it's fair to say most Americans support abortion-rights access in some form. My one question on polling prior to today is, I think for so many Americans this debate before this had been theoretical, right? I mean, it almost seemed hysteria to think that Roe v. Wade could be overturned. So old polling, I would be hesitant to use. I'd be curious to see what the polling says over the course of the next month. But, yeah, I mean, you raise a really good point. We're in a bit of unchartered territory here. I mean, the court going against such of the will of the public is not something we're really in a good position to say how it's going to impact the country. And abortion's a particularly tricky issue because, while people have feelings about it - especially because we're in an election year and this is a politics podcast - it depends on how they feel about the issue and how they rank it and how they vote. And we know, historically, abortion has been a much more animating issue for the right. It's certainly been a much more animating issue in the Supreme Court confirmation process for conservative justices...

DETROW: Yeah.

DAVIS: ...And the conservative-base movement.

DETROW: Carrie.

JOHNSON: I want to talk about some other polling. And that polling was long before this draft opinion on abortion rights leaked. The public opinion polling on the Supreme Court as an institution had dropped precipitously.

DAVIS: Yeah.

JOHNSON: And we know that Justice Sonia Sotomayor had warned at oral argument in this very case that if the majority of the court went in a direction like the one they now seem to be going, that it would create a political stench. She was not sure that the court as an institution could overcome, that it would leave people, ordinary people, thinking that the court was just as politicized as most other institutions in American government. And that's a pretty risky place for this court to be. And it could have lots of implications moving forward, especially if what the court does in this case means something greater, as President Biden seemed to signal today - could mean something greater in terms of an erosion of rights regarding same-sex marriage, marriage between people of different races and ethnicities, the right to contraception and a number of other legal rights that basically are supported by some of the privacy reasoning that the court used in Roe.

DETROW: Chief Justice Roberts has spent so many years indicating in different ways that, like, it was his overall mission to keep the court above the fray, to keep the institutional respect. I mean, this truly seems like his worst nightmare then, right? - this type of ruling that would upend the country in this kind of way and a leak of this nature, making it entirely political and heated in the two months before the ruling is going to come out. Like, this seems like everything he was trying to avoid in one situation.

JOHNSON: Yeah. It's no longer his court, which we know, right? And now...

DETROW: Yeah.

JOHNSON: ...The other more conservative wing of the court doesn't really need the chief justice, don't really need him to do much of anything other than be an administrator for the court and, when possible, to pick who gets to write the majority opinion. But Roberts' efforts to keep the court on some kind of supported middle ground and not rocking the boat, while the boat has been overturned - the boat may have...

DETROW: Yeah.

JOHNSON: ...been tipping months and months ago. But with this seismic leak, I don't think you can put all the pieces back in the boat and expect there to be smooth sailing for the rest of this term and maybe not for the rest of Roberts' tenure as chief justice. We'll have to see what happens when we read the final set of documents in this case.

DETROW: Yeah. Yeah. All right. A lot more about this between now and June and much more coverage of this story today on NPR.org and on your local public radio station. That is it for today on this podcast, though. I'm Scott Detrow. I cover the White House.

DAVIS: I'm Susan Davis. I cover Congress.

JOHNSON: And I'm Carrie Johnson, national justice correspondent.

DETROW: Thank you for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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