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What's Next For The Supreme Court And Roe v. Wade?


For White House press secretary Sarah Sanders, this is not the time to answer questions about President Trump's Supreme Court nominee and Roe v. Wade.


SARAH SANDERS: I'm not going to get into any specifics that we would be looking at.

HALLIE JACKSON: Not about this conversation with these justices - I'm saying, does he himself, as just a matter of how he feels, his own policy - does he want to see Roe overturned?

SANDERS: Again, as this is ongoing, I'm not going weigh into anything specific on that front at this point.

JACKSON: This is a presidential policy question.

INSKEEP: In the past, of course, the president has spoken clearly. He expects his Supreme Court choices would eventually overturn the landmark ruling on abortion rights. So could the court really flip a judgment that's been upheld for 45 years or so? Kimberly Wehle is here, a former assistant U.S. attorney and now a professor of the University of Baltimore School of Law.

Welcome to the program.


INSKEEP: And thanks for coming by. So let's just work through this. What is the first thing that would have to happen for the court even to consider the issue of abortion rights?

WEHLE: Well, courts are not like legislatures. You have to have what's akin to a broken-arm plaintiff, someone who's coming in and saying, I was hurt in a way that the rest of the voting populace was not. So we'd have to have a law passed by a state that restricted abortion in such a way that it went to the heart of Roe v. Wade, which essentially was about limited government. It was saying, a constitutional right to abortion means government can't tell a woman they have - that that person has to finish a pregnancy to term or risk some kind of pushback from the government - that is, jail time or some kind of penalty.

INSKEEP: So the most likely way that this would come before the Supreme Court is some state restricts abortion rights; someone sues and says, the government is impinging on my rights, and the Supreme Court needs to decide if that's OK.

WEHLE: Correct. I'm pregnant, and I can't get my abortion.

INSKEEP: And so then this gets held up against the law, including this past precedent of Roe v. Wade. Now, Susan Collins - Republican senator, one of the senators who will have to vote on President Trump's nominee, once we find out who it is - talked to ABC over the weekend, and she addressed the way that she's viewing this. Let's listen.


SUSAN COLLINS: I'm going to have an in-depth discussion with the nominee. And I believe very much that Roe v. Wade is settled law.

INSKEEP: OK. Settled law - what does that mean, exactly? Because it's not written in the Constitution somewhere, a woman has a right to an abortion.

WEHLE: So settled law is Roe v. Wade, to the extent to which Roe said that there is a constitutional right protecting that woman from government interference in deciding whether to have an abortion. Now, there are tinkering laws, over a thousand since Roe v. Wade, that sort of chipped away at the abortion right, things like mandatory counseling, mandatory waiting periods, restrictions on abortions after a certain number of weeks. And so those restrictions are not settled law. Those are new cases, new plaintiffs coming up with new gripes, and the court can rule on those. And as we saw with the court's travel ban ruling, the court could, even in one of those tinkering cases, go out on a limb and say, by the way, we don't like Roe, like they did with the Korematsu case in which the...

INSKEEP: Oh, they - in the travel ban, they upheld the president's travel ban, but they said, by the way, the internment of Japanese-Americans, once upheld by the Supreme Court, was wrong and very, very bad. They could just drop it in there, is what you're...

WEHLE: Correct. Right, even if it wasn't squarely before the court in 2018.

INSKEEP: Now, I'm glad you mentioned that the court can work around the edges because there was a famous case, I believe, called the Casey case, in which the court did allow some restrictions on abortion but upheld the central idea that abortion is protected by the Constitution. Does that make it harder for a new court with a new composition to just come in and overturn it because it's been upheld not just in 1973, but was upheld by the court again?

WEHLE: Sure. It's been upheld many times. And I do think even a conservative court would be - its conservative majority would be very hard-pressed to come out and say, listen; Roe was wrong all those years ago. But it could tinker with it in a way that effectively makes it almost impossible to get abortion, particularly for low-income women.

INSKEEP: Susan Collins told The New York Times the other day that she did not believe John Roberts, the chief justice, would ever vote to overturn Roe v. Wade because he's publicly said, it's settled as a precedent of the court. Do you believe that John Roberts would never go there?

WEHLE: Well, when it settles as a precedent of the court, people talk about Roe as, you know, an activist court. And Roe is based on the due process clause. What is the due process clause? That says government can't come in and take your life, can't kill you, can't put you in jail, take your liberty, can't take your property without a hearing. What cases prior to Roe and Roe itself said is, you know what? Liberty is so foundational to our idea of freedom in this country that there are certain things government just can't take away at all, and that includes your right to privacy, your autonomy over your body. And the court's gone beyond that. So I do think Justice Roberts probably would have problems with that way of reading the Constitution, but he is, like others on the court - adheres to precedent. He respects the decisions of his predecessors, so I do think it would be difficult for him to make that decision.

INSKEEP: One last question - isn't it possible, though - there have been cases in history - rulings on segregation, for example - where the court, after 40 or 50 years, just rethought things and flipped?

WEHLE: Yeah, sure. The court could turn around and make a decision that this concept of substantive due process is inaccurate. But it also protects things like the right to marry, the right to raise your kids as you want, the right to medical treatment. All of these things are not expressly in the Constitution, so we have to be really careful about unraveling Roe and what the ripple effects could be on other rights that we enjoy as Americans.

INSKEEP: Oh, because if you flipped one, you might flip many things. Understood. Kimberly Wehle, thank you very much.

WEHLE: Thank you.

INSKEEP: She's a professor of law at the University of Baltimore and author of the forthcoming book "Constitutional Literacy." Transcript provided by NPR, Copyright NPR.