Constitutional law expert Neal Katyal analyzes the leaked opinion.
With the Supreme Court poised to strike down the Roe v. Wade decision, Katie turned to former Acting U.S. Solicitor General, Supreme Court clerk, and Constitutional law expert Neal Katyal to answer some big questions about the future of abortion rights in America.
They discuss everything from the likelihood that this decision stands to the Constitutional underpinnings of the landmark decision and the legal reasoning employed to overrule it. And, crucially, what comes next — between how some states could immediately outlaw abortion and what Congress could do to protect reproductive rights.
Watch and read their conversation below.
Katie Couric: First of all, let me just get your reaction to this leaked draft decision and what you thought when you read some of the things Justice Alito was saying in it.
Neal Katyal: I’m devastated by what the draft opinion says. The way it works is they hear oral arguments in December, the justices then go and meet in conference, just the nine of them, and they take a tentative vote after discussing the case. Then the senior-most justice in the majority assigns the opinion. The Chief Justice is always the senior-most justice. If he were in the majority, he would have kept the case for himself, but he didn’t. So it went down to, it looks like, Justice Thomas, who assigned it then to Justice Alito. It looks like there was a straw vote — five votes to formally and fully overrule Roe v. Wade.
Now, it’s at least theoretically possible that after some justices read the draft opinion and say they don’t agree with it and that Roe v. Wade should remain the law of the land. But there are a couple of problems with that. One is it’s really hard to change a Supreme Court opinion. Sometimes it happens and was rumored to happen in the Affordable Care Act with the Chief Justice changing his vote to uphold Obamacare. But it’s really rare. And number two, the question is where would that swing vote come from? As we were talking about last Friday, putting Justice Barrett on the court to replace Justice Ginsburg massively changed things. There are now six conservatives on the Court.
What will happen with this decision when it’s ultimately handed down?
I can’t predict what will happen. And by the way, this leak is so unprecedented. It’s just hard to even fathom how the justices will react to it. But it does seem like at the end of the day it’s a very hard thing to actually see change.
And here’s how bad this decision is Katie. It upholds a Mississippi law, which has no rape or incest exception. So now, it’s totally permissible — if this draft becomes the opinion — for any state in the country to ban abortion, even if the woman was raped.
Not only that, but we should point out that I believe 26 states have trigger laws. So if the Supreme Court overturns Roe v. Wade, those states will automatically outlaw abortion. Is that your understanding?
I think it’s 26 that will likely outlaw abortion. I think only 13 have trigger laws already in place and another 13 are expected to do them. So in those 26 or so states, abortion will be illegal, perhaps under any circumstance, even rape or incest. Now, if you live in one of those states, you can still travel to another state, if you have the financial means, to obtain an abortion. But what’s worrisome on that front is that some states are thinking about trying to criminalize a woman going across state lines to get an abortion, which is medieval. The other is that there are Republicans in Congress now who are talking about a federal ban on abortion in all 50 states.
Part of Justice Alito’s argument is that there’s no explicit protection for abortion in the Constitution, that it’s granted because of a woman’s right to privacy. Can you explain how that works?
Roe v. Wade is based on the idea that we all have a zone of privacy in our lives, and women, in particular, have a privacy right to deal with their bodies in the way that they see fit — at least up to the point of viability, 25 weeks. Now, the hard conservative objection to that has always been, “I don’t see abortion in the Constitution; I don’t even see privacy in the Constitution. Therefore you have no constitutional right.” Justice Alito picks up on that logic in this draft opinion and that for a right to be in the Constitution, it either has to be expressly there or as he says, deeply rooted in the traditions of the American people. That is a really outmoded way of thinking about the Constitution.
It’s a very strict constructionist interpretation of the Constitution. There’s so much precedence to making the Constitution a living, breathing document that changes with the times.
You’re 100 percent right. And conservatives embrace this because they come up with all sorts of made up constitutional rights when they want to strike something down, like the Affordable Care Act. So this is a game they’ve been playing for a long time. But here, if the methodology holds, it does threaten the right to privacy generally. So the Supreme Court case in 1965 that said married couples have the right to get birth control is based on the same foundations of Roe v. Wade. So if you knock one out, you very well may be knocking the other out. Even the right to marriage equality, which the Supreme Court finally recognized in 2015, is subject to the same thing.
Now Justice O’Connor’s opinion in the Casey decision in 1992 is important because it says the court’s legitimacy now hinges on Roe. Because an entire generation of women and men have grown up with Roe in understanding that they have this right and social expectations have crystallized around this. If the court takes it away, she says, the court’s legitimacy would be in deep peril. So that makes Roe the hardest case to overrule. It’s like a super precedent. And yet, they did it here. So if you can do it here, why not do it to all the other things we’re talking about?
Some of these justices made promises that they would respect precedents. What do you think this tells us about the politicization of the Supreme Court? And moving forward, will there be a move to limit lifetime appointments for justices?
I think it does show just how much the Republican Party monkeyed with the Supreme Court in really devastating ways. And so the result is a Supreme Court that’s all smart, all able, but far outside the mainstream of American society at this point. That has been a 50-year Republican project, and Sen. Mitch McConnell I’m sure is grinning like a cat right now because it’s come to fruition. One way or another, there has to be a change that will undo some of this and it’s going to take a lot of time and a lot of effort. But the Republican Party has not treated the Supreme Court with the dignity it deserves. They played game after game, and this is the result.
Only 28 percent of Americans think Roe v. Wade should be overturned. This draft decision is not representative of how the majority of Americans feel about this issue. Can you tell us about the role Congress now plays?
This is really simple. There’s a bill pending in Congress right now that would codify Roe v. Wade. So even if the Court decides to take it away, Congress can say we believe that a woman has the right to choose and the House and the Senate can both pass that, in my view, by majority vote. The House certainly has the votes right now, and I do think the Senate has more than a majority, particularly with Murkowski and others guaranteeing that. The objection is that there’s a filibuster requirement in the Senate that you need 60 votes, not 50, to move legislation. Here’s where the Republicans can be hoisted by their own petard, because they got rid of it when it came down to confirming three conservative Supreme Court Justices: Gorsuch, Kavanaugh, and Barrett. And if you can get rid of the filibuster for the most consequential decision, like the confirmation of a Supreme Court Justice, then you should be able to get rid of it for an important issue like this.
[Editor’s note: Since this interview took place, Senators Kyrsten Sinema and Joe Manchin have publicly said they won’t support ending the filibuster, throwing the possibility of this strategy into doubt.]
Why do you think the House and Senate will act now before the midterms?
I do think that Sen. Schumer suggested that he was going to bring this up on the floor quickly. And I think it’s got to be quick because right now these rights are in peril. If that draft, if it does become reality, at that minute women will be denied reproductive justice. That’s the minute that the Senate and the House should have a bill ready to go, passed with the filibuster strategy I’m talking about. Because this is too important. The stakes are too high. And look, I believe so much in tradition and institutions. But the Republicans have spit on all that and the result is right now it looks like millions of American women are going to be denied the right that we have understood they’ve had since 1973.
