(upbeat music) (logo bubbles) - Hello, and welcome to "The Journal."

I'm Steve Kendall.

On June 24th, the US Supreme court ruled in favor of Dobbs versus the State of Mississippi, or excuse me, Dobbs versus Jackson Women's Health Organization, which effectively overturned Roe versus Wade.

And that returned jurisdiction of abortion to the states.

It altered many years of precedent and appears to have raised a lot more questions than it may have answered.

Here to help us understand what that ruling means is Joanne Brant, a professor of law at the Pettit College of Law at Ohio Northern University.

Dr. Brant, thank you for joining us today.

Welcome to "Journal."

- Thank you.

Happy to be here.

- As I mentioned, Roe obviously had been in place for a long time.

Could you kind of take us back to how Roe became law back in the early '70s?

- Absolutely.

So Roe was decided in 1973 by a seven-to-two court.

And it was building on a foundation of precedents that were protecting bodily autonomy, personal liberty, and privacy; issues related to the family, to children, to control of childbearing.

The court basically located a privacy right in personal liberty that it found to be inherent in the 14th Amendment.

The text to the 14th Amendment says the government can't infringe our life, our liberty, or our property without due process of law.

Now, the court had previously protected the right to use contraceptives, both married couples and single persons, against state laws that had sought to prohibit its use.

And the court had said in one of those decisions, the year before Roe, if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into manners so fundamentally affecting a person as the decision whether to bear or beget a child.

So women's rights advocates, and this was a time when women were coming together to advocate for greater rights and freedoms, seized on that sentence and saw the opportunity it presented to challenge state laws criminalizing abortion.

- Yeah.

Mm-hmm.

Now, the court, then, as we know, courts change as presidents appoint and senate confirms.

Would you consider that court, that group of people to be more liberal than the court we have now, or is this pretty much the way they had moved on a lot of cases?

- Yeah, so the Roe case was really in line with a number of other privacy decisions that had come before.

And it's important here to note that privacy rights have been around for a very long time.

They did not spring to life in Roe.

The court actually first reached out to protect privacy rights in 1891 in a case where a woman had sued a railroad after being injured when her bunk collapsed.

And the railroad attorneys tried to get her to submit to a surgical examination.

And the Supreme Court said, "No, her privacy rights protect her against that kind of discovery."

So that was 1891.

And before that, we had decisions in the '20s protecting parents' rights to send their children to religious schools, protecting parents' rights to instruct their children in the German language.

Those weren't rights spelled out in the Constitution, but the court thought there was a zone of privacy that people were entitled to control where the government couldn't enter.

- That's interesting because the right to privacy, at least in this context, people believe, seem to have flowed from Roe, but in reality, as you've just described, it goes back well past that date.

The right to privacy, at least in some Supreme Court justices' minds, had existed for a long, long time prior to Roe, yet sort of the perception is it's Roe was the right to privacy case.

And the reality is it's much more extensive than that.

- Absolutely.

There had been decisions affecting states' ability to sterilize criminals.

And the court said there was a fundamental right to protect one's right to procreate.

And so the liberty and privacy right development had been on a very steadily progressing course through a wide range of decisions, protecting people from unwarranted medical intrusions into their persons, protecting prisoners from being given psychotropic drugs.

A wide variety of contexts protected personal, privacy-based decisions.

- Yeah, now, when you look at that, I mean, have there been other, 'cause obviously we're talking a long list of precedent there, have there been other instances where the court has really reversed a precedent of this significance, or is this something, something new?

- Yeah, so there have been a fair number of overrulings of precedent.

The one most of your listeners are probably familiar with is Dred Scott, the most infamous decision of the Supreme Court, where they said that a black person couldn't be a citizen because they weren't human, they were property.

And we fought a long, bloody civil war and enacted the 14th Amendment to overrule Dred Scott.

But we made it clear in the first sentence of the 14th Amendment, all persons born and naturalized in United States are citizens.

So that's the leading example, but you could also look to Plessy versus Ferguson in 1896, which had said separate carriages for black and white are consistent with equal protection.

Brown versus Board of Education overruled that in 1954 and said, "We specifically find separate as not equal in the context of education."

You could look to protection for same-sex intimacy.

The first time the court addressed that issue was Bowers versus Hardwick in 1986.

And they said that the states could criminalize gay sex.

But Lawrence versus Texas came along in 2003 and overruled Bowers and said, "All persons, all adults can engage in private, consensual, sexual intimacy with a chosen partner.

- Yeah, so- - So there are a lot of overruled decisions.

One of the most swiftly overruled decisions actually involved the flag salute.

In 1940, the court decided a Pennsylvania case called Gobitis, which said that Pennsylvania could expel Jehovah's Witnesses who refused to salute the flag.

Only three years later, after a wide variety of violence against Jehovah's Witnesses across the country, the court reversed that decision in West Virginia Board of Education versus Barnett.

And they held six to three in a famous opinion that the government can't force its citizens to pledge allegiance to any God, any faith, any dogma, any national policy.

First Amendment means we are all free to think as we please and the government can't enforce conformity of opinion.

But there's one big difference between all those overruled decisions and Dobbs.

- [Steve] Okay.

- If we look at each of those overrulings, each decision enlarge liberty.

Those earlier overrulings meant that black people, gay people, Jehovah's Witnesses were freer than they had been before.

Dobbs is very different.

It's not enlarging the liberty of women.

It's freeing states to prescribe abortion as they see fit, even without exceptions for rape, incest, protecting a woman's health, as we've most recently seen even a 10-year-old rape victim in Ohio.

- Right.

Now, when we come back, let's talk about because what that does is you'll have 50 individual, basically, laws about abortion around the country and how that fits together with what what we've come to know as abortion rights, pro-choice, and then abortion rights argument.

Back in just a moment with professor of law Joanne C. Brant from Ohio Northern University here on "The Journal."

Thank you for staying with us here on "The Journal."

Our guest is Joanne Brant, professor of law from Ohio Northern University.

We're discussing the Supreme Court Dobbs and Roe and all of the case that flow from that and back into it.

Dr. Brant, you were talking, as we left that last segment off, the fact that the states now have control over the jurisdiction of abortion and an instance in Ohio just recently where we had a 10-year-old girl who needed to go to Indiana because Ohio didn't provide a window within the existing abortion rules that were in Ohio to allow her to have an abortion.

She was a victim of rape, and that's not an exemption.

Or at least it appeared not to be in Ohio at that point.

Talk a little about what that means, that we now have 50 individual versions of what women's rights in this area might be.

- Yeah, this is a bit of a crazy quilt for federalism.

We now have roughly half the states taking steps to prohibit abortion with trigger laws that were always planned to come into effect as soon as Roe was overruled.

And then we're seeing other states that protect women's rights to terminate a pregnancy trying to take more steps to protect women who may need to cross state lines and come to these friendlier jurisdictions in order to end a pregnancy.

We're also going to be seeing a lot more litigation around a lot of related questions.

So Justice Scalia, I'm sorry, Justice Alito said in Dobbs, "Well, Casey failed to bring the parties to consensus.

And by returning it to the state, we're taking the courts out of the game."

Most observers think that's far from the case.

The sorts of things we'll now have to litigate include, but aren't limited to, first, whether or not states that are prohibiting abortion might have in their state constitutions or in state statutes privacy rights equal protection rights that might prove effective to challenge those restrictions just as a matter of state law.

And so that kind of litigation is gonna happen.

Then we're also seeing states already attempting to project their laws beyond their borders and prevent their citizens from traveling across state lines to obtain abortions in states without restrictions.

So Justice Kavanaugh wrote a separate opinion in Dobbs, in which he said, "Don't worry about this.

The right to travel is secure in the Constitution."

And while we do have historic constitutional protection for travel rights, the states are definitely teeing that up and we're gonna have to see how different courts handle it.

Some states that are friendly to these rights are gonna wanna protect their own abortion providers for treating out-of-state patients.

And some may go further in providing additional protections.

And then we have the very interesting question of medication abortion, which is the brand new battleground in this area that we should talk about.

- Right Yeah, and I think, real briefly, when you talk about the fact, and I know that in the case of the Ohio, the young Ohio girl who went to Indiana, Indiana immediately reacted and said, "Well, we're gonna investigate the doctor that did the procedure to see whether she followed all of the rules."

So it's almost like no matter who's involved in this, they're going to look for someone to try and hold accountable in the minds of some people for what what appears to have been, especially in this case, a totally legal procedure in Indiana.

So as you said, it opens up so many more questions and it's not gonna stay- - Oh, absolutely.

- Yeah, it's not gonna stay out of the courts.

And if I recall, wasn't there, also, didn't Alito make a comment that this only applies to Roe versus Wade, no other cases are affected by this, that this is isolated to that?

How true would that really be?

Because he's not the only one who gets to make that decision, correct?

- Yeah, so let's talk about that.

- [Steve] Okay.

- So Alito absolutely said in the Dobbs decision that he's only deciding that abortion is not a right protected by the Constitution.

The difficulty is that he reaches that conclusion by way of reasoning that sharply attacks the very idea of privacy, insists that no right is fundamental, unless it's deeply rooted in history and tradition.

And when we think about that and we recognize that Alito was on record in the gay marriage cases and in others as saying gay marriage isn't deeply rooted in history and tradition, gay sex isn't, then we begin to worry about the implications of his logic, right?

- Right.

- And when he says, "We must be bound by the intentions of those who drafted the 14th Amendment," well, the guys who drafted the 14th Amendment would absolutely never have imagined that it could protect interracial marriage, that it could protect integrated public education, much less contraception or even women's rights.

- Sure.

- They view women as property, the possession of their fathers and husbands.

So we're being asked to make a choice.

Do we believe Justice Alito's statement that this is all about abortion, or do we believe his commitment to his logic and how far that logic runs?

In which case, rulings involving gay sex, gay marriage, and many others could be next on the chopping block.

- Yeah, and I think- - I think it's important to remember here that when Lawrence versus Texas, the decision that struck down Texas's law criminalizing gay sex, was decided, Justice Kennedy said, "This is only about gay sex."

And Justice Scalia then wrote in a dissent, "The court's logic will lead to it ratifying same-sex marriage."

He was correct.

That happened in Obergefell versus Hodges.

So the dissenters in Dobbs and many others are similarly worried about the possible legs on Alito's opinion.

- Well, when we come back, let's talk a little more about some of those cases.

And also too, Justice Thomas, as I think has indicated, is not a big fan of substantive due process.

And we can talk about that and what that means because he specifically called out in his concurrence with this, added some information, said, "Let's take a look at some of the cases you just referred to.

Let's reinvestigate those."

Even though Justice Alito said, "No, no, it's not about any of those, at least in this particular decision."

But as you said, then, he also opened the door in some other comments that he made in other cases.

So let's talk a little about that when we come back.

Back in just a moment with Joanne Brant, professor of law from Ohio Northern University here on "The Journal."

You're with us here on "The Journal."

Our guest is Joanne Brant, professor of law at Ohio Northern University.

And we're talking about Dobbs and Roe and all of the implications of what that decision has meant.

And Dr. Brant, when you were talking in the last segment, you referenced a number of cases that could spring from this that may open the door to changing the decisions in those cases.

So talk a little about some of those.

And we know that, as you said, Justice Alito opened the door a little bit in some other decisions and this one tried to narrow it, but how accurate is that?

How likely is that, that we'll stay simply with Dobbs taking care of abortion and not going into these other cases that talk about right to privacy?

- Yeah, it's very hard to say.

So when we read the logic of the opinion and his reasoning, which is a full-throated attack on privacy rights, it's exactly the same as the things Justice Alito is on record as saying in his dissent from the same-sex marriage case sites, Obergefell versus Hodges, and the decisions protecting same-sex intimacy in Lawrence versus Texas.

So those are two decisions that many people are very concerned about.

the justices who wrote those decisions and some of those who agreed with them are no longer on the court.

There's a powerful, very conservative, six-justice block on the court that may be prepared to go farther.

We just don't know.

But what we do know is that Justice Thomas is eager and wary to go farther.

He made that clear in his separate concurrence in the Dobbs case.

- [Steve] Right.

- He's been on record for many years as being hostile to the entire idea of substantive due process.

The idea that liberty imposes constraints on governments' ability to control our personhood.

He thinks the court made a mistake many long years ago around the turn of the century when it decided in its first case involving privileges and immunities, which the 14th Amendment also guarantees to all citizens.

And in that very first case, the court sharply limited what count as privileges and immunities.

And Justice Thomas thinks we should just erase decades of substantive due process jurisprudence and start over with the privileges and immunities clause.

And while that's somewhat attractive on its surface, everybody agrees that the term "privileges and immunities" seems more logically connected to substantive rights than just the idea of due process, the problem is with all do-overs, you get to decide what you keep and what you discard.

And the expectation is Justice Thomas, if he was able to pick and choose, would discard a great many of the substantive due process precedents.

And he's never been shy about a ruling precedent.

- Yeah.

Mm-hmm.

And I know that, if I understood correctly too, that the State of Texas is already looking at some of its same-sex relations laws based on what they've they've heard in Dobbs and is thinking about, at least in the State of Texas, doing away with those those rights or those protections that exist right now.

With regard to same sex marriage, what kind of confusion and chaos would it cause if the court took a case that then would say, "There is no right to gay marriage in the United States"?

The states can decide that.

What kind of situation would that place us in legally?

Because you have people that have been legally married, suddenly they're not legally married.

How does that play out in general?

- Yeah, you can imagine the chaos.

We got a brief preview of that back in California back in the day when Proposition 8 was enacted and we had already had individuals getting permission to marry.

And suddenly, Proposition 8 said those marriages were invalid and there was an immediate, "Oh my goodness, are we going to grandfather those who already have licenses?

Do we just mean the state can't issue more licenses going forward?"

Certainly, any discussion of the concept of stare decisis would have to take that into account.

And that's probably something we should chat about as well, since it's much discussed in Dobbs.

- Mm-hmm.

Yeah, and in fact, that case was an Ohio case.

Obergefell versus Hodges, I think, was the same-sex marriage case came out of Ohio and set that in place.

When you look at, and I know you mentioned some of these too, the contraception question really would seem to invade people's privacy.

If a state can say, "No, you're not allowed to use contras.

You're not allowed to purchase if you're not married, if you are."

that seems like an incredible invasion of privacy for just the average person.

Maybe that's legally not a good place to be, but it would just seem like that would be an incredible invasive move into people's privacy.

- Absolutely.

And while it's very tempting to think, "Well, they couldn't possibly go that far.

They couldn't possibly eradicate popular constitutional rights like the right to control your children and send them to religious schools and things like that."

it's important to remember that Alito's test for whether or not something can be a fundamental right is, do we have a history of criminalizing it?

We have a history- - Of criminalizing.

- of criminalizing all kinds of things.

We have a history of criminalizing same-sex marriage, gay sex.

We have a history of criminalizing interracial marriage.

We started criminalizing contraception the same time we started criminalizing abortion, during the civil war era.

So those statutes have the same vintage as the history of criminalization of abortion that Alito was relying on in Dobbs.

So once again, do you look at his assurance that this is only about abortion, or do you look at his reasoning and his logic and say, "Gosh, it seems to catch a great deal more"?

- Yeah.

And what we have is a situation, we've got just a couple of moments here, is a situation where that's all now open for discussion and decision making.

As you said, that's where we are.

We're kind of in, what could happen next, or what might not happen next?

- Absolutely.

Absolutely.

And the stare decisis issue, if I can talk about that quickly.

- Mm-hmm.

Sure.

- The court typically asks certain questions when it's deciding whether a precedent should be honored, right?

It asks whether the facts have changed, whether the law has changed.

It asks whether the rule of the case was workable, and it asks about reliance interests.

That framework was used in Dobbs.

It was also used in 1992 in Casey, when the court affirmed Roe.

And so it's fascinating to see the court asking the exact same questions and coming to different answers- - Different answers.

- on all of them.

- Wow.

Yeah.

And that, I guess, is what we'll now have to wait and see.

Dr. Brant, thank you so much.

Joanne Brant from the Ohio Northern University, professor of law, college of law there, the Pettit College of Law.

Thank you so much for coming on and helping illuminate this issue.

I have a sneaking suspicion we might be talking more in the future as these things roll out and move through the states for all of these different areas that we've talked about with regard to what we believe was a right to privacy in a lot of areas that may turn out not to be a right anymore.

So thank you so much for coming on.

- A pleasure.

- Yeah.

Thank you.

You can check us out at wbgu.org.

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We'll see you again next time.

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