E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein

**Jason Calacanis** (0:18)
There was a lot of big news, obviously this past week, when a leaked draft of the Supreme Court's Roe v. Wade decision was published by Politico, the draft opinion written by Justice Alito would turn Roe v. Wade from a federal issue to a state issue. Now, this is a bit above all of our pay grades, so Chamath had a really great idea to tap some people who are actual experts in the Supreme Court.
Chamath, maybe you could introduce our guests.

**Chamath Palihapitiya** (0:50)
I will.

**Jason Calacanis** (0:50)
And queue this up for us. Thank you.

**Chamath Palihapitiya** (0:52)
Great. So first, I'd like to introduce Amy Howe. Amy until 2016 served as the editor and a reporter for SCOTUS blog, which is the premier blog that covers the Supreme Court. She continues to serve as an independent contractor and reporter for SCOTUS blog. She also writes for her blog called Howe on the Court. And before turning to full-time blogging, she was a counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School. And from 2005 to 2013, she co-taught a similar class at Harvard Law School.
And I'd also like to introduce her partner in SCOTUS and also her partner in life, Tom Goldstein, another dear friend of mine. Over the past 15 years, Thomas served as one of the lawyers for one of the parties in just under 10 percent of all the cases argued before the Supreme Court. He has argued 43 cases himself and two that I think are probably a little bit near and dear to all of our hearts. In 2000, Tom served as second chair for Lawrence Tribe and David Bowies on behalf of Vice President Al Gore and Bush v Gore. And most recently, he represented Google in a fair use copyright infringement case, Google versus Oracle, about the use of Java APIs.
And so Tom and Amy, thank you guys for giving us your precious time. Welcome to the pod.

**Tom Goldstein** (2:22)
Thanks for having us.

**Amy Howe** (2:24)
Thanks for having us. I was a little nervous about what the introduction was going to be like. So thank you.

**Chamath Palihapitiya** (2:27)
So guys, there's a million questions to start with, or that we can go, but maybe just to frame the issue.
Can you guys just first walk us through the original Roe v Wade decision, how it was made and the rights that it conferred? And then maybe we can go from there and talk about what has happened as a result of the way it was written and the judgment as it stood.

**Amy Howe** (2:56)
Sure. Roe v Wade, back in the early 1970s, was a decision by Justice Harry Blackmun in which the court held for the first time that there is a constitutional right to an abortion. And at that point, the court ruled that it was regulated by time up through the trimesters. Am I getting this right, Tom? Yeah. And then in 1992, in a case called Planned Parenthood v Casey, that was an earlier effort to overrule Roe v Wade because abortion opponents started pretty quickly trying to overturn Roe v Wade.
And so, in 1992, in a case called Planned Parenthood v Casey, the Supreme Court did not overrule Roe, in fact reaffirmed it, but switched the test a little bit, the constitutional test to decide whether other abortion restrictions can stand. And this was a decision by Justices David Souter, Anthony Kennedy, and Sandra Day O'Connor, who were all appointed by Republican presidents.
And they said there is a constitutional right to an abortion up until the point at which the fetus becomes viable, which these days is somewhere around the 24th week of pregnancy. But states can regulate abortions as long as they don't impose an undue burden on the woman's right to an abortion.

**Tom Goldstein** (4:18)
I was just going to tack on like what's sitting underneath Roe, because that ends up being a big deal these days. You know, where did it come from? Seven justices in Roe and Wade say there is this constitutional right to an abortion up to a point.
And of course, there's no textual reference to abortion in the Constitution. Instead, the Supreme Court drew on earlier decisions involving what was called the constitutional right to privacy, essentially a kind of bodily autonomy right, an individual liberty principle that you're going to control your own destiny and your own body, drawing on cases involving contraception, for example, for both married and unmarried couples.
And that really is the doctrinal, the jurisprudential piece of this thing that conservatives have been after so hard. You've got kind of two branches of conservatism in play. One is, look, kind of religious and social conservatism that abortion is evil. And then you have a jurisprudential lawyers kind of thing like you made this up. It's not in the Constitution. And those two threads have come together and have been at the root of this 50 year battle over a row.