NPR’s Mary Louise Kelly speaks with Florida State University law professor Mary Ziegler about the other Supreme Court decisions that could be impacted if Roe v. Wade is overturned.
MARY LOUISE KELLY, HOST:
If – if – the Supreme Court rules as many are expecting and overturns or undermines Roe v. Wade, might other long-established precedents be at risk? Yesterday, the court heard arguments in a case from Mississippi that seeks to do just that – to reverse the abortion rights defined in Roe nearly five decades ago. And among the questions posed by justices was, is the right to abortion deeply rooted in the history and traditions of the American people? Mary Ziegler is a law professor who studies abortion rights, and she joins us now. Professor Ziegler, welcome.
MARY ZIEGLER: Thanks for having me.
KELLY: I saw you wrote that you thought you knew where and how the justices would navigate arguments yesterday in court, but that you were wrong. Explain.
ZIEGLER: It’s always good to listen to people who are wrong, though. Well, Chief Justice Roberts laid out the path I thought the court was going to take, and that is to say that I thought the court was going to overrule Roe, but to do so over a course of a couple of steps and a couple of years. And I thought that doing that might be a way for the conservative justices to reach the outcome that they think is correct and that their political allies would celebrate while managing potential political fallout. And the first step would then be upholding Mississippi’s law and getting rid of the viability line. Just to be clear, the viability line in current law means that you can have a right to abortion until fetal viability – the point survival is possible outside of the womb, which is around 24 weeks. I didn’t hear, at least based on argument yesterday, many of the other conservative justices sounding interested in Roberts’ approach. Many of them seemed to be much more willing to go all the way to reversing abortion rights entirely, rather than taking some preliminary step first.
KELLY: What other seemingly settled constitutional rights might then be in play? Let’s start with birth control, with IVF.
ZIEGLER: Well, I think birth control and IVF are the most in play because what we mean by abortion is contested, too. The fight about the contraceptive mandate and the Hobby Lobby decision – that all turned on the idea that some common contraceptives are, in fact, abortion-inducing drugs. So some states may reach out to criminalize some forms of contraception by deeming them abortion. The same goes for steps in infertility treatment like IVF, so there may not even be additional Supreme Court doctrine emerging before you see states taking that step. And that would force the Supreme Court, I think, to weigh in potentially on whether that contradicts the court’s holdings on contraception or whether it’s OK because the court agrees that those are in fact abortifacient drugs, not contraceptive drugs.
On the question of whether the court would actually overrule its precedents on contraception, it’s possible to distinguish them, as the Mississippi solicitor general tried to do, essentially by saying there’s not the same uproar about birth control as there is about abortion. In his view, you know, abortion is a taking of a human life, which isn’t true of contraception either. I think it’s going to be harder for the court to cabin its ruling because of course, contraception was illegal at the time the 14th Amendment was written. And it’s sort of wrong to say there’s no uproar about contraception when you’re thinking about drugs that people believe are abortion-inducing drugs, which is why we had so much back and forth about the contraceptive mandate. It was hardly as if that was a settled issue. So I would say that’s not something that would happen immediately, but I don’t think that’s something we can rule out.
KELLY: You see a door opening…
KELLY: …Them taking up cases to do with that. What about same-sex marriage?
ZIEGLER: Yeah, same-sex marriage is definitely a candidate. Justices Alito and Thomas have in passing mentioned in dicta that they think it might be worth revisiting Obergefell v. Hodges – the same-sex marriage decision. And I think it’s fair to say that in the sort of panoply of culture war issues, that rights for same-sex couples and sexual orientation are still among the most contested, even though certainly same-sex marriage is more subtle than it was and than abortion was. I think that certainly the sort of balance between LGBTIQ rights and religious liberty writ large is a very much alive issue, and I think some states may try to test the boundaries with Obergefell, particularly knowing that they have a few justices potentially willing to go there with them.
KELLY: And then, I should note also non-reproductive issues. The right to privacy has been an umbrella for a lot of things – homeschooling your kids, for example.
ZIEGLER: Right. Yeah. I mean, I think Justice Thomas has written before and asked questions that suggested yesterday that he may be willing to get rid of that entire body of law, even in situations where he might find the right sympathetic. I think it’s too early to say whether any of the other justices would go there with him. The challenge, I think, for the court is really going to be explaining what makes abortion different and doing so in a way that doesn’t suggest that it’s a right to life for prenatal or fetal human beings, right? Because that would have the effect of making abortion unconstitutional everywhere, not just leaving it to the states. And so the court is between the pit and the pendulum, I think, if it wants to get rid of Roe and not go any further than that – between sort of veering towards sounding like it’s adopting or open to adopting a personhood theory and sounding like it’s open to adopting theories that would make other rights in jeopardy.
KELLY: So what will you be watching for when this ruling comes down – that won’t be until next year – but that might give us some insight into how this court’s rulings on abortion in the Mississippi case, in the Texas case as well – whether that might open the door to overturning other established law of the land in the U.S.?
ZIEGLER: I think what we’re really going to be looking for is we know there are camps among the conservative justices about how far to go, how quickly. We just don’t know how large each of those camps are, and we’ll be looking for signs of that.
KELLY: Professor Ziegler, thank you.
ZIEGLER: Thanks for having me.
KELLY: Professor Mary Ziegler of Florida State University. She’s the author of “Abortion And The Law In America.”
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