Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein

After a short joking opener, a host says the past week's big news was Politico's publication of a leaked draft of the Supreme Court's Roe v Wade decision. As the host describes it, the draft opinion would turn abortion from a federal issue into a state issue. The hosts say the topic is beyond their own expertise, so they invited two people who work on the Court.

The guests are introduced as Amy Howe and Tom Goldstein. Howe is described as a former editor and reporter for a Supreme Court blog, a continuing contributor there, and the author of her own blog. She is also said to have been counsel in more than two dozen merits cases, to have argued two, and to have co-taught Supreme Court litigation at Stanford and Harvard law schools. Goldstein, her partner on the blog and in life, is said to have represented a party in just under 10% of the cases argued at the Court over fifteen years and to have argued 43 himself. These credentials are the host's introduction, not independently checked here.

Asked to frame the issue, one guest says Roe, decided in the early 1970s, held for the first time that the Constitution protects a right to abortion, with regulation tied to the stage of pregnancy. Another guest says that in 1992 Planned Parenthood v. Casey declined to overrule Roe and reaffirmed it, while changing the test for judging other abortion restrictions. As the guest tells it, three justices appointed by Republican presidents wrote that the right lasts until viability, which they put at around the 24th week, and that states may regulate as long as they do not impose an undue burden.

A guest then explains why the foundation matters. The Constitution does not mention abortion, so the Court drew on earlier decisions about a right to privacy, described as a kind of bodily autonomy, including cases on contraception for married and unmarried couples. The guest identifies this as the legal piece conservatives have attacked. In that account, two strands of conservatism have joined: a religious and social view that abortion is evil, and a legal view that the right was made up. The guest says the two have driven a fifty-year fight over Roe.

A host asks for a definition of originalism, which he sees as a separate axis from the moral spectrum of liberal and conservative. A guest answers that in ordinary politics a libertarian, whom the guest links to a Peter Thiel-style view, would be likelier to say the choice belongs to the individual. Many conservatives, the guest says, see an important government role in regulating or prohibiting abortion.

On the legal side, the guest describes originalists as people who think the Constitution should be read as it would have been understood when it, or an amendment, was enacted. The example given is the Fourteenth Amendment's ban on depriving someone of liberty without due process, with the originalist asking what liberty and due process meant then. The guest contrasts this with a progressive view, which holds that many rights are not enumerated, such as bodily autonomy or the right to educate one's child as one sees fit. On that view the Constitution's vagueness is deliberate, since the founders expected it to last for centuries and could not foresee modern problems. The guest contrasts it with more detailed modern constitutions such as South Africa's.

The guest sums up the two conservative positions. Originalists say there is no right to abortion in the Constitution and that the founders could not have imagined striking down abortion bans. Social conservatives add that protecting the unborn is an important government role. The source breaks off here mid-sentence.

Asked to walk through the draft's framework, Howe says it runs 67 pages with about 30 more in an appendix. She attributes it to the justice the hosts call Alito, though the transcript renders the name inconsistently. She says it proceeds in two steps. The first is originalist: whether abortion is a right deeply rooted in the country's history. In her account the draft concludes it is not, since no such right was recognized until the late twentieth century and abortion was a crime in many places.

The second step concerns stare decisis, the principle that courts should not overturn earlier decisions merely because they think them wrong. Howe says the Court has never set out exactly what is required to overrule a decision, though it has named factors. According to her summary, the draft finds Roe and Casey wrong when decided, for the history reasons above. On reliance, it says people did not arrange their personal lives in the short term around the right, and it rejects the broader argument that women have made life decisions assuming reproductive freedom.

Howe adds that the draft calls the undue burden test unworkable because it is so amorphous that courts have reached varied results on different restrictions. Her summary of the draft's conclusion is that abortion is a profound moral question but not one the Constitution protects. It should be decided by the people and their representatives and returned to the states. This is her description of the leaked draft.

A host says many people read the headline as the Court directly legislating a nationwide ban, and asks the guests to explain that the Court is deciding who gets to decide, and what role the Court has in the system. A guest begins with the three branches and says the Court's job here is to interpret the Constitution. Some of its cases are technical statutory questions, such as what Congress meant in a bankruptcy law, while others are momentous, like this one.