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SCOTUS and Roe questions, asked and answered

MARY LOUISE KELLY, HOST:

Every day, over dinner tables, on the bus, in group chats across the country, Americans are wondering what happens if the Supreme Court overturns Roe v. Wade. With the leaked draft opinion making this possibility seem like a real likelihood, we wanted to take the time to hear from you, from members of the NPR audience, about the questions you wish experts could answer about abortion access and reproductive rights. And we have two experts here with us now. Khiara Bridges, law professor at UC Berkeley, welcome.

KHIARA BRIDGES: Thank you. Thank you for having me.

KELLY: And NPR national correspondent Sarah McCammon, who covers abortion policy. Hey, Sarah.

SARAH MCCAMMON, BYLINE: Hi, Mary Louise.

KELLY: All right. Let's dive right in with questions. The first one has to do with trigger bans. As I understand it, more than a dozen states have trigger bans, laws that would kick in that would ban abortion if Roe were to be overturned. So let's start with this question. It comes from Maureen Reilly (ph) from Queensbury, N.Y.

MAUREEN REILLY: Are there any other health conditions besides abortions that are left up to the states to regulate?

KELLY: Sarah, you take that one.

MCCAMMON: Well, sure. I mean, states passed regulations about all sorts of things, health issues included sometimes. One legal expert I spoke to about this pointed to medical marijuana laws, for example. So cannabis, of course, is still illegal under federal law. But a growing number of states in recent years have passed legislation allowing access to marijuana under various circumstances, in some cases only for medicinal purposes. But that varies from state to state. Another example would be physician-assisted suicide. It's illegal in most states, but about 11 states have laws now allowing some form of medically assisted euthanasia, according to the advocacy group Compassion and Choices.

And even with abortion, states currently have some authority to regulate that procedure, especially earlier in pregnancy. For example, they can prohibit the use of telehealth to dispense abortion pills, and some states do. There have also been efforts in some more liberal states to relax some of the health restrictions around abortion, for example, to expand the types of providers who can offer the procedure to include nurse practitioners or physician assistants.

And historically, some efforts at the state level to regulate abortion have been deemed to violate the Constitution by imposing what's considered an undue burden - and that's an important standard in previous abortion rights precedent - on a patient's ability to access care. For example, the Supreme Court has struck down rules requiring doctors who provide abortions to have hospital admitting privileges. But this case before the court right now appears likely to give states much more room to regulate and even ban abortion.

KELLY: A question regarding the crossing of state lines because I know one thing groups that support abortion rights are steeling themselves for is, if these bans go into effect, that people may cross state lines in greater numbers to try to access abortion care. Here's a question about that. This is from Wohinia Jow (ph) in Columbus, Ohio.

WOHINIA JOW: Do states truly have the power to restrict the movement of residents if they try to travel out of state or out of the country to gain access to reproductive rights that their own states have denied?

KELLY: Khiara Bridges, what do you say?

BRIDGES: Sure. There is definitely precedent for states having the power to restrict their residents' movement. And the best precedent that I can think of is the facts behind Loving v. Virginia. Loving v. Virginia is the famous case in which the court struck down anti-miscegenation laws that prohibited white folks from marrying non-white folks. And the facts behind that case are that the Lovings traveled out of Virginia to D.C. in order to engage in their interracial marriage. They had to travel because interracial marriage was illegal in Virginia. When they returned, they were arrested because they had violated the Marriage Evasion Act, which prohibited the traveling of outside of the state to engage in this illegal activity, which was interracial marriage.

So we certainly have precedent for states having the authority to restrict travel. But I should also note that we also have precedent that there might exist a fundamental right to travel that is protected in the Constitution. There are a couple of cases from the 1980s in which a majority of the court suggested that there is a fundamental right to travel that states cannot infringe through various sort of techniques. So there might be some sort of restriction on the ability of states to restrict travel.

KELLY: All right. One more on trigger bans before we move on - there was a lot of interest in this. This comes from Emily Baker (ph) in Port Townsend, Wash., and she's asking about this from the flipside.

EMILY BAKER: So there are a lot of states that have trigger laws in place. Is there a similar set of trigger response plans ready and waiting by pro-abortion rights advocacy groups?

KELLY: Sarah.

MCCAMMON: So as we heard, about 13 states have laws in place that are designed to take effect very quickly to ban abortion within hours or days or weeks. And some of those require action from state officials like attorneys general to certify them and implement them. So abortion rights opponents are certainly gearing up for this. I've talked to some who say they're reaching out to state officials, asking them to be ready to do that. But to Emily's question, abortion rights supporters are also getting ready. I talked to Julie Rikelman, who's the senior director of litigation at the Center for Reproductive Rights, which argued the Dobbs case before the Supreme Court. And she says states like Texas have multiple laws on the books that will create a lot of confusion initially.

JULIE RIKELMAN: And the language of each of those laws varies. And it will not be entirely clear immediately what will be the law in that state, which of those bans will be in force. And that will, at the end of the day, be worked out through litigation.

MCCAMMON: And Rikelman predicts what she describes as legal chaos in the aftermath of this decision as states try to interpret what the decision means for their laws. So reproductive rights groups are getting ready to challenge some of these decisions. And we're likely to see legal battles in both state and federal court. These groups say some state constitutions may also have protections for abortion rights that they can call upon if Roe v. Wade falls.

KELLY: Let's step back, go big-picture. Khiara, I'm going to throw this one to you. This comes from Janet Krones (ph) in Frederick, Md.

JANET KRONES: I am curious to know why President Biden can't just sign an executive order authorizing abortion.

KELLY: Could he just sign an executive order authorizing abortion? Could he do that legally?

BRIDGES: Unfortunately, that's just not the way federalism works. So the president has certain powers that are delegated to him in the Constitution, to that office in the Constitution. And those powers relate to sort of discreet areas of life, like national security, like starting wars, like immigration. So it's outside of the president's authority to legislate or to issue orders around, you know, reproductive rights and health.

KELLY: Next question from Elise Manning (ph) in Edwardsville, Ill. And this is about a possible religious exemption to abortion bans.

ELISE MANNING: Couldn't you argue religious discrimination or something? I'm pretty sure that Judaism straight-up mandates an abortion if the mother's life is in danger. So what would happen in a lawsuit like that?

KELLY: Sarah McCammon, what does your reporting have to tell us about this?

MCCAMMON: Right. I did a story on this recently and with the caveat that within any religion, there's a range of views you can find. But scholars I spoke to told me that Judaism and also Islam generally place a lot of emphasis on protecting the well-being of a person who's pregnant. And I interviewed a range of Christian scholars and thinkers as well, Roman Catholics in particular. And many conservative Protestants believe that life begins at conception, that a person has all the rights of any human at that point. But there are many Christians, of course, who take a different view and would emphasize the importance of bodily autonomy for people who are pregnant.

You know, in the oral arguments in the Dobbs case last year, Justice Sonia Sotomayor made this argument as well. She asked a question essentially suggesting that the view that life begins at conception is a religious view. And I should add this argument is already being made. Just recently, a synagogue in Florida filed a lawsuit challenging that state's 15-week abortion ban on religious freedom grounds. A synagogue in Boynton Beach, Fla., is arguing that the ban infringes on the religious freedom of Jewish people and imposes the views of another faith on people who practice Judaism. So it's certainly an interesting argument and one to follow as it unfolds in cases like that.

KELLY: I'm going to land us on a question from Denver, Colo. This comes from Kian McIntosh (ph), who is curious about the future ramifications of a decision that overturns Roe if it were to look anything like the leaked draft.

KIAN MCINTOSH: Could the argument used in the draft opinion for overturning Roe v. Wade be used to justify overturning other previous decisions in the future? Specifically, does the logic used impact future rulings related to birth control, access, gay marriage and other issues that would impact women and the LGBTQ+ community?

KELLY: Khiara Bridges, could this end up being about way more than abortion?

BRIDGES: My answer is absolutely. And that's true for two reasons. One, Justice Alito is skeptical of substantive due process. And substantive due process is this doctrine that says that there are certain rights that are not spelled out in the Constitution but that are protected through the due process clause. And so a lot of the rights that are important to marginalized people - reproductive rights, LGBTQ rights, marriage rights, etc. - all of those rights have been a function of substantive due process.

The second reason is because of the legal methodology, the interpretive methodology that Justice Alito uses in that opinion. It's originalism. And originalism looks to see what they were thinking back at the founding of the nation, at the drafting of the Constitution. What did they have in mind? What were the rights that were important to them, right? What was the original public meaning of the Constitution?

I can assure you that folks who were considered part of the polity during that time were not marginalized people. They did not have the capacity for pregnancy. They were not women. They were not people of color. They did not have disabilities. And so the things that are important to those groups simply would not be contemplated by the Constitution if we have a majority of justices who subscribe to originalism. And so we should be very afraid that we're going to be seeing interpretations of the Constitution that eliminate all of the rights that marginalized people need in order to be full members of the body politic.

KELLY: UC Berkeley law professor Khiara Bridges and NPR national correspondent Sarah McCammon answering your questions. Thanks to you both.

MCCAMMON: Thank you.

BRIDGES: Thank you.

(SOUNDBITE OF KENDRICK LAMAR SONG, "UNTITLED 05 09.21.2014.") Transcript provided by NPR, Copyright NPR.

Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.