Ep. 1486 - Is Roe About To Be Overturned?!

Episode Summary

Executive Summary: The episode centers on the Politico leak of a draft Supreme Court opinion reportedly poised to overturn Roe v. Wade and return abortion regulation to the states. Shapiro argues the leak was illegal, politically motivated, and dangerous, then walks through Alito’s draft reasoning, praising its textual, historical, and stare decisis analysis while condemning the left’s outrage as anti-democratic and norm-breaking.

Main Topics: Politico leak of the draft Roe decision (Priority: 5/5): The show opens with the leaked draft majority opinion and frames the leak as unprecedented, likely intended to intimidate justices and mobilize political pressure. Defense of overturning Roe v. Wade (Priority: 5/5): Shapiro argues Roe and Casey were constitutionally baseless because the Constitution contains no abortion right and the issue should return to state legislatures. Analysis of Alito’s draft opinion (Priority: 5/5): A lengthy breakdown of Alito’s reasoning: text, history, tradition, ordered liberty, stare decisis, workability, and reliance interests all allegedly favor overruling Roe and Casey. Accusations against the left and media (Priority: 4/5): The left is portrayed as celebrating illegal leaks, threatening the rule of law, and responding with hysteria; media figures are criticized for misleading claims about abortion harms. Federalism and state-level abortion policy (Priority: 4/5): Shapiro argues overturning Roe would restore federalism by letting red states and blue states regulate abortion differently according to local voters. Political fallout and Democratic response (Priority: 4/5): He discusses calls to abolish the filibuster, pass federal abortion protections, and the unlikelihood of a nationwide federal abortion ban. Public safety and institutional legitimacy (Priority: 4/5): The leak is framed as threatening Supreme Court legitimacy and potentially endangering justices, with calls for investigation and prosecution.

Key Arguments: Roe and Casey lack support in constitutional text, history, or original meaning; abortion is not mentioned in the Constitution. The leak of a draft Supreme Court opinion is unprecedented and appears designed to intimidate justices and alter the outcome. Stare decisis does not require preserving egregiously wrong constitutional decisions, especially when they are unworkable and poorly reasoned. The viability and undue burden standards are described as arbitrary, vague, and impossible to administer consistently. Returning abortion regulation to the states is presented as a restoration of democracy and federalism rather than an attack on it. The left selectively invokes norms and legality only when it suits them, while celebrating leaks that advance their political goals. Claims that banning abortion massively increases maternal deaths are challenged with historical mortality statistics. A federal nationwide abortion ban is portrayed as politically unlikely even if Roe falls; the issue will remain primarily state-based.

Data Points: States asking the Court to overrule Roe and Casey: 26 states - Alito notes that 26 states expressly asked the Court to overrule Roe and Casey and return abortion regulation to the people. Majority support in draft opinion: 5 votes - Politico reported that the draft majority opinion had apparently secured five votes. Age of Roe precedent: 49 years - The draft opinion characterizes Roe as a 49-year-old precedent. Age of Casey precedent: 1992 - Casey is described as the subsequent decision that largely maintained Roe. Years before Constitution adoption mentioned in history review: First 185 years - Alito says each state was allowed to address abortion for the first 185 years after the Constitution’s adoption. Mississippi abortion limit at issue: 15 weeks - The draft concerns a Mississippi law prohibiting abortion after the 15th week of pregnancy. Historical state bans at the time of Roe: 30 states - Alito notes that at the time Roe was decided, 30 states still prohibited abortion at all stages except to save the mother’s life. States criminalizing abortion at 14th Amendment adoption: Three-quarters - The draft says three-quarters of states made abortion a crime at all stages when the 14th Amendment was adopted. Roe draft length: 98 pages - Politico reported the draft opinion ran 98 pages, including a historical appendix. Historical appendix length: 31 pages - The draft included a 31-page appendix of historical state abortion laws. U.S. mortality from pregnancy-related deaths in 1960: 1,579 - Shapiro cites Vital Statistics of the United States for 1960 pregnancy-related deaths. Abortion-attributable pregnancy deaths in 1960: 189 - He cites 189 pregnancy-related deaths attributable to abortion in 1960. Pregnancy-related deaths in 1968 attributable to abortion: 133 - He cites a lower number for 1968 as part of his rebuttal to claims about unsafe illegal abortion. CDC deaths from legal abortions in 1972: 24 - Shapiro cites CDC figures for 1972, the year before Roe. CDC deaths from illegal abortions in 1972: 39 - He cites CDC figures showing 39 deaths from illegal abortions in 1972. Conservative court appointments named in draft: 4 justices plus Alito - The draft is described as joined by Thomas, Gorsuch, Kavanaugh, and Barrett in conference with Alito. Duration of partisan polarization: Half a century - Shapiro repeatedly says Roe sparked a national controversy that has embittered U.S. politics for half a century.

Pivotal Quotes: "We hold that Roe and Casey must be overruled." — Justice Samuel Alito (draft opinion): Core holding of the leaked draft opinion regarding the constitutional abortion right. "The Constitution does not confer a right to abortion." — Justice Samuel Alito (draft opinion): Central constitutional conclusion underpinning the draft’s reasoning. "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." — Planned Parenthood v. Casey (quoted in transcript): Used by Shapiro and Alito as an example of the Court’s expansive and contested liberty reasoning.

Implications: If the draft becomes final, abortion policy shifts to the states, intensifying state-level political battles while reducing Supreme Court power over the issue. The leak may trigger investigation, and the ruling could reshape federalism and future judicial legitimacy debates.