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Reproductive rights scholar on legality of abortion ahead of SCOTUS case

DAVID FOLKENFLIK, HOST:

On Wednesday, the U.S. Supreme Court will hear arguments in a highly anticipated case involving the right to abortion in the state of Mississippi. The law in question bans most abortions after 15 weeks. The question is whether that is constitutional. And the answer to that question has the potential to overturn the right to an abortion that was recognized nationally nearly a half century ago in the case Roe v. Wade. And since Republican appointees hold a majority on the Supreme Court, some abortion rights advocates fear that the case could be overturned altogether.

We wanted to learn more about the case and the legal future of abortion access, so we called Melissa Murray. She's a professor at New York University's Law School, where she teaches courses on family law and reproductive rights. She's also a co-host of "Strict Scrutiny," a podcast about the Supreme Court.

Professor Murray, welcome.

MELISSA MURRAY: Thanks for having me.

FOLKENFLIK: First, if you don't mind, concisely set out for us the central issue that's going to be presented before the Supreme Court on Wednesday.

MURRAY: Well, the issue that was taken up by the court when it granted certiorari was a very specific question, whether a state could restrict abortion before viability. Viability is the marker in pregnancy where the fetus can survive outside of the womb, and it's typically marked at 23 to 24 weeks.

The Mississippi law that's being challenged prohibits abortion at 15 weeks, so it's clearly before viability. And so the question that Mississippi asked when it petitioned the court for certiorari in 2019 was whether viability was still a salient marker in the court's jurisprudence.

What has transpired, however, is much more interesting. In 2019, when it made its request to the court initially, it was a pretty modest ask; just tell us where - what viability means. But then in 2020, as we know, Ruth Bader Ginsburg died. And then in 2021, when Mississippi filed its first brief before the court, its request was much more aggressive. Instead of just simply sticking to the question of whether viability continued to be a salient marker in the court's jurisprudence, Mississippi has invited the court to overrule and overturn Roe v. Wade and Planned Parenthood v. Casey, two precedents that basically form the corpus of the court's abortion jurisprudence.

FOLKENFLIK: Matter of disclosure - you, of course, clerked for Justice Sonia Sotomayor, an appointee of President Obama, back when the justice was an appellate court judge. How profoundly do you believe this case could change the landscape of legal rights in this regard?

MURRAY: Well, there's a lot of discussion about what some have dubbed a maximalist approach - and that would be overturning Roe v. Wade and Planned Parenthood v. Casey - and a minimalist approach, which is simply to eviscerate viability as a salient marker in the court's jurisprudence. I would hesitate to call that a minimalist approach, though, because, in fact, that really is a sea change in the court's jurisprudence. Since 1973, with Roe, and since 1992, when Planned Parenthood v. Casey reiterated this, states have been prevented from outright banning abortion before viability. That has always been in the discretion of the pregnant person in consultation with a physician to determine what to do about a pregnancy before viability.

Even if the court were to take the less onerous step of simply limiting viability as a salient marker, that by itself would be an enormous, enormous change in the jurisprudence. And it would really, I think, set off a spate of litigation in the lower federal courts about laws like Texas SB8, which ban abortion at six weeks, laws that ban abortion at 10 weeks. We would be in a fit of litigation trying to figure out, if 15 weeks is OK, what else is OK? Is it 12 weeks? Is that fine? Is 10 weeks fine? Is eight weeks fine? And when there is that much confusion on the ground, that is a disaster for abortion access. And so it will be - even if Roe survives in name, it will be a disastrous landscape for those seeking abortion care on the ground.

FOLKENFLIK: Professor Murray, a number of the states we're talking about here are conservative states that have significantly conservative constituencies that they're representing - in many cases, strong anti-abortion sentiment present. Why shouldn't these state legislatures have the right to pass laws that are more restrictive than some of their peers in other parts of the country with perhaps more liberal outlook?

MURRAY: You know, I think that is one of the arguments that perpetually comes up. It comes up with regard to the prospect of overruling Roe. Why don't we simply overrule Roe and leave this to the states to make their own decisions about what's best for their constituencies?

And I think the difference, though, and I think the caveat that a number of individuals would raise is that these things cannot be siloed. So it is true that you have individuals in a state where there may be a quite significant anti-abortion fervor. And if you limit abortion in that state, you know, you will perhaps satisfy that constituency. But you will also send individuals seeking abortion care elsewhere, to neighboring states which may have more liberal outlooks. And that overwhelms, I think, those systems as well.

So we are a nation of states, but we're also a nation itself. And the Constitution is meant to apply broadly to all members of the polity, regardless of where they live. And what we are seeing in Texas is exemplary of this. Texas has, right now, a landscape where abortion rights do not exist the way that they do in the other 49 states. And we have seen Texans fleeing like reproductive refugees to other states with more hospitable abortion laws. And I think that's what we would see if we left this to the states. And, you know, again, that wasn't the plan when the framers framed the Constitution. The idea was that we would be a nation that was made up of states but that would have, I think, a common outlook and a common set of rights that citizens could access.

FOLKENFLIK: Before I let you go, oral arguments are set to take place on Wednesday. What are you going to be paying attention to?

MURRAY: I think everyone is going to be looking at the court's newest justice, Amy Coney Barrett, if for no other reason than we've never actually seen her in action in an abortion confrontation at the high court. But more than that, again, because she took to the stage to disclaim the idea that she and her colleagues are, quote, unquote, "partisan hacks," I think people will be looking in her language and in her questioning for signs that she is prioritizing the court's legitimacy, perhaps ahead of even her own personal views of abortion. And I think that will be very telling. So I think we all know where a lot of the other members of the court are on these questions. But she is someone who is, until Wednesday, going to be a blank slate for some purposes.

FOLKENFLIK: We've been hearing from Melissa Murray. She's a professor of law at NYU School of Law and co-host of the "Strict Scrutiny" podcast. Professor Murray, thanks.

MURRAY: Thank you. Transcript provided by NPR, Copyright NPR.