The past two weeks have been some of the worst on record for abortion rights in the U.S. Last week, the governor of Georgia, Brian Kemp, signed a bill that outlaws abortion after six weeks of pregnancy. Now Alabama is planning to go a step further, with the country’s most extreme anti-abortion law. Under the proposed legislation, abortion would be criminalized, with no exceptions for cases of rape or incest; doctors could face a ninety-nine-year prison sentence for terminating a pregnancy. The Alabama House has passed the bill, and the Senate is expected to vote on the measure on Tuesday evening.
Both the Georgia and Alabama laws are sure to be challenged in court, but the legal climate surrounding abortion is different than it was just last year. After the replacement of the Supreme Court Justice Anthony Kennedy with Justice Brett Kavanaugh, Chief Justice John Roberts is the swing vote, and many conservatives have reason to hope that the Court will rule in favor of new restrictions on abortion and eventually even overturn Roe v. Wade.
To discuss the Court’s decision-making on abortion, I spoke by phone with Linda Greenhouse, the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale Law School and a columnist for the Times. Greenhouse covered the Supreme Court for the Times for decades, won a Pulitzer Prize for her reporting there, and wrote a biography of Justice Harry Blackmun, the author of the Roe decision. During our conversation, which has been edited for length and clarity, we discussed what these state laws really aim to do, how the Court’s conservatives might go about weakening Roe, and what Roberts might want to accomplish.
When you look at the history of abortion law in the United States, is there anything about this law in Georgia or the proposal in Alabama that you find interesting, or new, or different?
Well, they’re shockingly aggressive. They purport to take us back to the pre-Roe regime, where abortion was criminal until the mid-sixties in all fifty states—despite the fact that, by the time the Court decided Roe, Gallup and other polls showed that a strong majority of the public believed that abortion should be left as a matter between a woman and her doctor. And the pro-choice majority held throughout all demographics: men, women, Catholics, Republicans. Republicans were the pro-choice party at that time. So what’s happening today is pretty breathtaking, actually.
What specifically in these laws do you see as the biggest challenge to Roe?
I don’t think these laws per se are challenges to Roe because they’re so extreme. I actually think the challenge to Roe will come with ostensibly milder measures that will let the courts find cover in seeming not to be extreme even though these laws can have the extreme effect of destroying the abortion infrastructure and cutting off access for most women. I’m referring to, for instance, the laws that Louisiana passed to require doctors who provide abortions to have admitting privileges at local hospitals. A challenge to that law is right now pending before the Supreme Court, and it is a complete twin to the Texas law that the Court overturned in 2016, before Justice [Neil] Gorsuch and Justice Kavanaugh joined the Court. The vote in that case was 5–3, Justice [Antonin] Scalia having died.
So that’s a law that, on the surface, provides some cover, because the state says, “Oh, we’re doing this for women’s health,” even though it has absolutely nothing to do with women’s health. But I think that’s a more appealing place for the current Supreme Court to land. And even thinking of upholding a law that would criminalize abortion from the moment that a fertilized egg is implanted in the uterus, which is what I gather the Alabama law would provide, when you would need a microscope to find it, let alone be aware of a pregnancy, that’s just preposterous.
So you don’t interpret the aggressiveness of these laws as conservatives feeling emboldened and thinking they’re going to overturn Roe?
Well, I think they’re doing a couple things with these laws. They’re appealing to a base. These are politicians who are passing these laws, and these are elected governors who are purporting to sign them. It’s a way of keeping issues hot and alive. It’s also a way of, as we’ve seen throughout this battle, carving abortion out of normal medical practice by turning doctors into criminals for providing a medical service that something like thirty per cent of all American women will avail themselves of during their reproductive lifetimes.
So, there’s something very strange going on here, and I’ll just say that I think laws like this have almost nothing to do with the fetus, or the embryo, or the fertilized egg, and everything to do with the role of women in society today. It’s all about the dignity and agency of the female half of the population. And that’s what’s at stake, frankly.
It seems like we’re now at a place where this is largely an issue for John Roberts, or is likely to be. So you see almost no chance that he would uphold these laws?
Yes, I think that’s accurate. And I’m not sure the Court would even take such a case, because they’ll be struck down in district court, and that will be upheld in the court of appeals. And Georgia and Alabama are in the same circuit. So there’d be no conflict in the circuits, which is the marker for the Court’s willingness to hear a case. The easiest thing for the Court to do is just to deny review. The Court doesn’t have to say anything.
There have been three strains of thinking about Roberts. One is that maybe he won’t overturn Roe. He doesn’t want to upset the apple cart. The second is that he does want to overturn Roe but will find a sort of subtle way of doing it. And the third is that, now that conservatives are in strong control of the Court, he will just overturn Roe. Do you have a sense, from studying him, of which of those three things is likely to happen?
Well, I’m assuming he thinks Roe was wrongly decided. I’m assuming he wishes it was not precedent. He does have a dilemma about what to do about that. And I think taking the path that I suggested of upholding laws that present substantial obstacles to the right to abortion but don’t write the right to abortion off the face of the statute books would be a more appealing thing for him to do.
He was a dissenter in the 2016 decision that struck down the Texas admitting-privileges law. He was a fifth vote with the four people to his left back in February to grant a stay of Louisiana law to allow the abortion clinics in Louisiana to file their Supreme Court appeal. So that was pretty interesting, because, had he not joined them over four dissents to his right, I think all but one abortion clinic in Louisiana would have had to shut down. And he didn’t want that to happen. I can only infer he didn’t want that to happen without giving the clinics a chance to make their case before the Supreme Court. That doesn’t bind him to agreeing with their case. But at least it shows us some awareness of the optics of the Court letting something as drastic as that occur without any kind of oversight by the Justices. So it’s a kind of interesting data point.
These laws like the Louisiana law don’t specifically go against Roe. They just kind of neutralize it. But is your sense that passing these laws would be enough for abortion opponents? Or is your sense that, at some point, despite all these laws, Roe would have to be formally overturned?
Overturned by the Supreme Court, you mean?
Yeah.
I think one template we might take for that is a case that has absolutely nothing to do with abortion. It’s a decision called Janus [v. AFSCME], in the area of labor law, that the Supreme Court issued, last June. This is a case in which the Court overturned a forty-year-old precedent by a vote of 5–4. The precedent had said that a public employee who doesn’t want to join the public-employee union doesn’t have to join the union, but they can be required by state law to pay that portion of the union dues that goes to the union’s bargaining and representation function because that benefits everybody in the workplace. And so it was deemed a fair share that they don’t have to subsidize the union’s political activities, but they have to pay for those services from which they benefit. The Supreme Court overturned this precedent. And it did it in such a way that the ultimate decision, in June, was inevitable, and totally not surprising. The Court had issued a series of decisions over six years leading up to this where, case by case, they whittled away the old precedent. They cast doubt on it. They spoke about it in very snarky terms over dissents from people like Justice [Elena] Kagan, who knew what was afoot, but she couldn’t stop it.
I’ve looked at that as a template for what might happen to Roe. They could uphold this obstruction, and they could uphold that obstruction, and they could send all these signals. And it would take a number of years—not a huge number of years, maybe. And so, if Roe finally falls, it’ll fall with a little push of a pinkie, rather than a frontal assault, because there won’t be much left of it.
I can guess your opinion of Janus, and also of these abortion restrictions. But is your view that that’s a purely cynical approach and they’re pretending they’re not being as extreme as they are? Or is your view that this is the way the Supreme Court should make law, and it’s proper, but you just don’t like the result?
I think, if you look at the cases leading up to the Janus decision, actually, it wasn’t cynical at all. It was totally transparent. Justice [Samuel] Alito, who wrote the initial decisions and ultimately wrote Janus, was completely out front with what he was doing. It was obvious to anybody. It just didn’t happen to be subject matter that the general public was following or was very engaged with.
Cynicism doesn’t quite capture it. I think it’s rather intentionality, and strategy, and playing a long game. I think it would be quite clear what they would be doing, because these obstructive laws are inconsistent with settled precedent. They’re inconsistent with Planned Parenthood v. Casey, which was the case, in 1992, where the Court reaffirmed the right to abortion at a moment when everybody thought they were about to overturn it. It would be totally out there, front and center. And it would fall to those of us who think about and write about this subject to make sure that the public understands what’s happening.
Roe’s been around for more than thirty-five years now. Many people think the most serious challenge to it was that 1992 case, Casey. Do you agree with that? And why did Casey represent such a threat to Roe?
Casey came up when the only Justice left on the Court who had been part of the Roe majority was Justice Blackmun himself. And in place of these Justices had come Clarence Thomas, David Souter, Anthony Kennedy, Sandra Day O’Connor. And both Kennedy and O’Connor had written things about abortion since they got on the Court that were very hostile to Roe.
So, just counting noses, it seemed very unlikely that Roe would survive, because it wasn’t that the law had changed, it was that the Court had changed. Roe emerged changed, modified, but the right to abortion remained. That was a very surprising outcome in that case.
How was it changed and modified?
The Court elevated the right of states to act in the interest of unborn life from the moment of conception. Roe had basically said to the states, “Hands off before viability”—I’m oversimplifying a little bit, but, basically, in the Court. And Casey said, “No, actually, the states’ interest runs from the very beginning of pregnancy.” So Casey upheld a couple of things that Roe had found unconstitutional: a waiting period, mandatory so-called counselling by the doctor, and that sort of thing. It changed the balance, but, at the end of the day, Casey says explicitly that the state can seek to persuade a woman to carry a pregnancy to term, but the state cannot impede her ability to terminate the pregnancy by imposing what the Court called an “undue burden.”
I was wondering whether the door had been opened to some of these state laws because of something what the Court found in Casey. But it seems like what you’re saying is that maybe that would be true for certain laws, but certainly nothing even remotely like what we’re seeing now.
Oh, that’s right. I mean, what we’re seeing now is totally incompatible with Casey. Now we have one-day, two-day, three-day waiting periods. We have extensive mandatory counselling in which doctors are required to tell lies to their patients, such as, if you have an abortion you’ll increase your chance of suicide. That’s totally false, that’s been totally disproven, but lower courts have upheld that kind of fake counselling. So Casey did open the door to a lot of unnecessary and harmful restrictions on access to abortion. But nothing like what we’re seeing now.
