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Law professor on his amicus brief in support of Mississippi overturning Roe v. Wade

ARI SHAPIRO, HOST:

The Supreme Court today heard arguments about a Mississippi law that bans abortion after 15 weeks. That's about two months earlier than the period established nearly 50 years ago by Roe v. Wade. Mississippi wants the court to reverse its past decisions, including Roe v. Wade, to return the question of abortion to the states. Professor O. Carter Snead from the University of Notre Dame Law School has been following today's arguments and joins us now.

Welcome.

O CARTER SNEAD: Great. Thanks for having me.

SHAPIRO: You filed a friend of the court brief in the case, urging the court to side with Mississippi and overturn Roe. And I think after today's arguments, many analysts believe the justices are likely to side with Mississippi, but the question is whether they'll continue to allow abortions up to 15 weeks or overturn Roe altogether. How do you interpret what you heard in arguments today?

SNEAD: Well, it was a very interesting argument. The one thing bearing on the question that you just asked that's most interesting is that both parties - both Mississippi, as well as the Center for Reproductive Rights' lawyer, as well as the solicitor general of the United States - all seemed to take the view that this is basically a binary decision because a 15-week ban directly conflicts with Planned Parenthood v. Casey's rule, which says no bans prior to viability, which is...

SHAPIRO: Right.

SNEAD: ...Of course, later than 15 weeks. You can't really affirm this ban as constitutional without seriously probably dismantling the entirety, or certainly the core holding, of Roe and Casey, which...

SHAPIRO: It sounds like you're saying, if they're going to side with Mississippi, they are likely to gut Roe altogether. Is that your conclusion here?

SNEAD: I do think that that - yeah, I think that's right as a matter of logic and legal reasoning. But I think it's also the view of the parties to the case. The only justice that seemed to express hesitation about that today was Chief Justice Roberts, who was asking questions about whether or not viability really was essential to the holding of Casey and Roe. I think the common view is that it was. But I think he was trying to think of creative ways to disentangle the undue burden standard from viability perhaps.

SHAPIRO: Precedent is such an important principle for Supreme Court justices. We hear it discussed a lot. And as you mentioned, the constitutional right to abortion has been affirmed for almost 50 years. Do you think the court sees precedent here as a significant hurdle to siding with Mississippi?

SNEAD: Well, I think it's a significant question. I'm not sure if it's a hurdle. There's a well-developed doctrine of stare decisis, which lays out for the justices considerations that they have to take into account, or they're - rather, I should say, they're invited to take into account. Stare decisis as a prudential doctrine that the justices even reminded us today is not an inexorable command but something that justices in a common law framework need to take in mind before they disturb prior precedents, even if they were wrongly decided. But even - and it's true that you - as you say, that there has been a right to abortion in our law for about 50 years. But it has been constantly changing in terms of the rationale, in terms of the rules. Roe v. Wade said it was - there was a fundamental right to privacy and gave us the trimester framework. Planned Parenthood v. Casey changed that to a protected liberty interest and gave us the binary pre versus post viability framework. And then even more recently in the Hellerstedt case, we had yet a new test. So one of the things that justices consider - because they're interested in the goods of stability and transparency in a sustainable system of rules that people can depend on - is has the law really been stable over that period of time? And I think there's an...

SHAPIRO: And you're saying it has evolved.

SNEAD: I think there's an argument to be made that perhaps it's actually not been stable.

SHAPIRO: Now, you're saying just - sorry. On a separate note, Justice Sonia Sotomayor questioned today whether overturning Roe could further politicize the court. Here's a bit of what she had to say.

(SOUNDBITE OF ARCHIVED RECORDING)

SONIA SOTOMAYOR: Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

SHAPIRO: Professor Snead, what do you make of that? Is there a reputational risk to the court here?

SNEAD: It's a great question. My own view is that the court's reputation is at its apex when it hews to the role of being a court, which is to say, faithfully interpreting the Constitution and applying the doctrines and precedents and laws. This is obviously a deeply emotionally vexed question. People feel very strongly about it. In our country, I think it's especially emotionally vexed because the Supreme Court has not allowed the elected branches of government to have a full and fair conversation the way our neighbors and - around the world have, who govern themselves through the democratic process on the question of abortion. But I think that if - I think this is a no-win situation in a way because if you sustain Roe v. Wade, even though you think it was wrongly decided and, in fact, all the principles of stare decisis don't apply to it, you're going to be deemed to be politicizing the court. People will accuse Justices Sotomayor and Kagan and Breyer of acting politically because they support the right to abortion as a policy matter, whereas people could pivot and accuse the conservative justices of changing the law because they prefer a more restrictive framework as a policy matter. I just don't there's any way avoiding criticism of making political decisions.

SHAPIRO: You argue that it cuts both ways.

SNEAD: Yeah. Exactly.

SHAPIRO: On that point of politicization, there's been a lot of talk about the makeup of the court. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all appointed by former President Trump. He made it very clear that he wanted to see Roe overturned and would appoint justices who would do that. Do you think it's straightforward that these three are certain votes to overturn Roe?

SNEAD: No, I don't think so. I think President Trump said a lot of things, obviously, about a lot of different topics and was frequently - made statements that I think were problematic. And I think this is one of them. When you appoint a justice to the court, unless you're engaging in sort of pure results-oriented hackery and choosing people that you think will do your bidding, then I think that's what - that would cohere with that sort of statement that you just described. Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett are judges' judges. They have the highest integrity. And they do not - they're not the kind of people that would - that are results-oriented in their jurisprudence. So even if Donald Trump thought that that's what he was getting - a particular result that was guaranteed - I think that he was mistaken in that respect.

SHAPIRO: That is Professor O. Carter Snead from the University of Notre Dame Law School. He filed a friend of the court brief in support of the state of Mississippi's effort to overturn Roe v. Wade.

Thank you for being with us.

SNEAD: Thank you.

SHAPIRO: And in another part of the program, we will hear from an abortion rights supporter.

(SOUNDBITE OF UPPERMOST'S "EMOTION") Transcript provided by NPR, Copyright NPR.