Dec 2, 2021 - Podcasts

Roe v. Wade hangs in the balance

The Supreme Court heard arguments Wednesday in a challenge to Mississippi’s law that bans abortion after the 15th week of pregnancy. It’s the most significant abortion case in years and a direct challenge to Roe v. Wade.

  • Plus, Stacey Abrams announces a run for Georgia governor in 2022.
  • And, putting high gas prices in perspective.

Guests: Harvard University constitutional law professor Noah Feldman and Axios' Emma Hurt and Ben Geman.

Credits: Axios Today is produced in partnership with Pushkin Industries. The team includes Niala Boodhoo, Sara Kehaulani Goo, Julia Redpath, Alexandra Botti, Nuria Marquez Martinez, Alex Sugiura, Sabeena Singhani, David Toledo and Jayk Cherry. Music is composed by Evan Viola. You can reach us at [email protected]. You can text questions, comments and story ideas to Niala as a text or voice memo to 202-918-4893.

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NIALA BOODHOO: Good morning! Welcome to Axios Today!

It’s Thursday, December 2nd.

I’m Niala Boodhoo.

Here’s what you need to know today: Stacey Abrams is running for Georgia governor in 2022. Plus, putting high gas prices in perspective.

But first, today’s One Big Thing: Roe v. Wade hangs in the balance.

The Supreme Court heard arguments Wednesday in a challenge to Mississippi's law that bans abortion after the 15th week of pregnancy. It's the most significant abortion case in years and direct challenge to Roe vs. Wade. Here to break down the oral arguments for us is Harvard constitutional law professor Noah Feldman. Hey Noah.

NOAH FELDMAN: Hey nice to see you.

NIALA: The headline from yesterday's oral arguments is that abortion rights advocates should be worried about Roe vs. Wade continuing, but can oral arguments be misleading?

NOAH: Sometimes they are misleading. I have to say that that oral argument doesn't feel like that to me. I have to say that when Justice Brett Kavanaugh said that he thinks that the court should be quote, “scrupulously neutral” with respect to abortion rights, he was really showing his hand. He was really telling listeners “I am going to vote to overturn Roe v. Wade” because I don't want to be on the side. of the mother and I don't want to be on the side of the fetus.

At issue is whether a pregnant person has a fundamental right to choose whether to carry the pregnancy or not and that isn't a question that begs for a neutral answer. It's only if you reframe the question of abortion as a conflict between the interests of the pregnant woman and the interests of the unborn fetus that you then could say, “Well, you know, we have to be neutral between these conflicting interests.”

NIALA: So I want to play Justice Roberts here talking about viability and choice, and maybe you can help us understand a little bit more what exactly he's talking about -

CHIEF JUSTICE JOHN ROBERTS: Viability - it seems to me doesn't have anything to do with choice. Uh, but if it really is an issue about choice, why is 15 weeks not enough time?

NOAH: So Roe versus Wade, which was decided way back in 1973, did two things: First, it said that a woman has a fundamental, constitutional privacy right to control her own body and decide whether or not she wants to remain pregnant. The second thing it did was lay out a kind of defacto framework for when the government was allowed to regulate abortion. And what it said was up until viability outside the womb, which it is usually said to be 23 to 24 weeks, the woman had effectively an unfettered right to choose to end the pregnancy.

The current law that's in question, the Mississippi law says you can't get an abortion after 15 weeks. So he's offering a compromise here that the court would say, “Hey, we haven’t overturned Roe v. Wade, and you still have a right to an abortion, but the line is moved from 23 or 24 weeks to 15 weeks.” The reason Roberts is saying this is that for a long time, he's made it clear that he does not want a headline that says “Supreme Court overturns Roe v. Wade.” But on the other hand, he does want to chip away at abortion rights.

NIALA: Based on what you heard yesterday, what is the most likely outcome that we will see at the end of June, early July when the court does hand out a decision?

NOAH: It's impossible to predict with absolute certainty, but if you're updating your information based on the oral argument, it seems much more likely even than it did before yesterday that five justices will vote to overturn Roe v. Wade, maybe even six, if Roberts gives up the ghost once that's happening.

The effect of that would be that in states that choose to outlaw abortion, it will be illegal to go to a physician to have an abortion performed and that is going to be a sea change in the law of the United States. And it's going to lead to years, years, of political conflict. It's going to lead to serious, serious difficulties in the way of women who become pregnant and want to get abortions in those states. And it's going to lead to a raft of new laws and new legal issues around cross-state border medical care, which is a whole area that we haven't yet begun to explore, but we're probably going to have to.

NIALA: Noah Feldman hosts the Deep Background podcast. He also teaches constitutional law at Harvard. Thank you, Noah.

NOAH: Thanks for having me.

NIALA: In 15 seconds, Stacey Abrams’ new campaign for Georgia governor.

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NIALA: Welcome back to Axios Today. I'm Niala Boodhoo.

Stacey Abrams announced yesterday she's once again running for Georgia governor. To refresh - in 2018, she lost to Republican Brian Kemp by fewer than 55,000 of the 4 million votes cast. So this 2022 campaign sets the stage for a potential rematch. Axios Atlanta's Emma Hurt covered that last campaign and is following the latest. Hi Emma.

EMMA HURT: Hey Niala.

NIALA: What do we need to know about the political backdrop for this campaign in Georgia right now?

EMMA: For 2022, the stakes are high on both sides of the aisle in Georgia because this has been a Republican state for decades and in 2020, Democrats flipped two Senate seats. President Biden won, and Democrats argued that's because this is a Democratic state now, but Republicans say it was a Trump fluke. And so the stakes in 2022 are who’s right?

NIALA: What do you think the national significance of this is?

EMMA: Well look, in 2018 Stacey Abrams’, Brian Kemp's race was really the first instance I think that took the voting rights issue nationally. And we've seen that issue only get bigger and bigger with President Trump in 2020 and voting-related legislation this year. And what happened then was you had Brian Kemp who refused to step down as secretary of state running in a race against Stacey Abrams who had made part of her career around registering voters and expanding the electorate and so the issue of voting rights was central to that race. And after the race, it continued to be so, and is the reason in part that Abrams became a national figure because she refused to concede to Kemp on the grounds of alleged voter suppression.

NIALA: Before we let you go, Emma, the capital city of Atlanta elected a new mayor this week, Andre Dickens. How does that change the political landscape?

EMMA: I think what's interesting about the Dickens victory, especially when we think about Abrams' campaign, is that he won with a middle of the road message. He did not lean into a tough on crime stance like others of his opponents did and he didn't talk about things like defunding the police in a very liberal city and it worked. So we have a really interesting dynamic there that his campaign says could be a template for Democrats in Georgia and Atlanta, and also around the country going forward.

NIALA: Emma Hurt is a reporter for Axios Atlanta. Thanks, Emma.

EMMA: Thanks, Niala.

NIALA: It’s the time of year when everyone’s paying even closer attention to how much it costs to fill up at the pump. In October, Americans paid the highest gas prices since 2014… but a new analysis from the University of California shows that when adjusted for inflation, gas prices are far lower than right before the 2008 financial crisis. Axios’ energy reporter Ben Geman is here to give us some context. Ben, what’s really going on here?

BEN GEMAN: There was this really interesting commentary by the UC Berkeley energy economist, Severin Borenstein that caught my eye. So for one thing, when you adjust for inflation over the last 15 or so years, prices are much lower than they were during the run-up to the 2008 financial crisis, well over a dollar per gallon lower. Bornstein also found that as a share of median household income, gasoline costs are somewhat lower than the average over the last 17 years. And okay, so why is that? Well, one for one thing, incomes have risen, somewhat and cars have also gotten more efficient too. So you can travel a bit further for each dollar of a, of gas that you buy. Okay, so what's the bottom line? So for Bornstein he thinks that this heavy media focused on the price of gasoline is obscuring a much larger problem. And that's this broader rising inequality and wealth and income that’s making everything harder to afford for people that are economically vulnerable and, you know, that includes housing, food, and yes, of course fuel. And so he writes and, you know, I'll just read it here, “what we need to address is the everything affordability crisis for people being left behind with stronger social programs, educational options, and job opportunities.” So, so yeah, it's some, uh, it's some food for thought after Thanksgiving travels as, uh, as we start to get hungry again.

NIALA: That’s Axios’ energy reporter Ben Geman.

That’s all we’ve got for you today! You can reach our team at podcasts at axios dot com or reach out to me on twitter. You can also text me at (202) 918-4893.

I’m Niala Boodhoo - thanks for listening - stay safe and we’ll see you back here tomorrow morning.

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