A SCOTUS Case That Could Overturn Roe | Crooked Media
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December 01, 2021
What A Day
A SCOTUS Case That Could Overturn Roe

In This Episode

  • Today, the Supreme Court hears what is likely the most consequential reproductive health case in decades. The case, Dobbs v. Jackson Women’s Health Organization, will decide whether or not Mississippi can prohibit abortions after the 15th week of pregnancy. And the worst case scenario is that the high court uses the case to completely overturn Roe v. Wade. We lay out what listeners should watch for.
  • Dutch health officials reported that the Omicron variant was actually in Europe prior to South African scientists discovering it and alerting the World Health Organization. This adds a new wrinkle to the question of where it originated from—yet unanswered.
  • And in headlines: A school shooting in Michigan left 3 students dead, Dr. Oz announced that he’s running for Senate in Pennsylvania as a Republican, and CNN suspended Chris Cuomo from the network indefinitely.


Show Notes:

  • New York Times: “How 2 Flights to Europe May Have Spurred Spread of New Variant” – https://nyti.ms/2ZKZije






Gideon Resnick: It is Wednesday, December 1st. I’m Gideon Resnick.


Josie Duffy Rice: And I’m Josie Duffy Rice. And this is What A Day, where we are so excited to announce that our reusable masks are now officially considered rare and vintage.


Gideon Resnick: Yes, and one may even turn you into a green monster in a yellow suit who spins around and dances a lot.


Josie Duffy Rice: But no promises. That was not a guarantee.


Gideon Resnick: On today’s show, we have more news on the Omicron variant. Plus what we know so far about the tragic school shooting in a Detroit suburb yesterday.


Josie Duffy Rice: But first today, the Supreme Court hears what is likely the most consequential reproductive health case in many decades. The case is called Dobbs versus Jackson Women’s Health Organization. And Gideon, this is not an exaggeration. This is the biggest threat to abortion rights since Roe v. Wade was decided almost 50 years ago.


Gideon Resnick: Yeah, it certainly seems to be that way. So can you start, then, by just giving us some basic background on this case?


Josie Duffy Rice: Sure. So back in 2018, Mississippi passed the Gestational Age Act, which prohibited abortions in the state after the 15th week of pregnancy, except in cases of medical emergencies or fetal abnormalities. Please notice that rape is not on the list of those exceptions. And for the record, Gideon the law is more like a 13-week ban, actually, because it specifies that the count quote, “begins on the first day of the last menstrual period of the pregnant woman.”


Gideon Resnick: Wow.


Josie Duffy Rice: Which really demonstrates just how much Mississippi lawmakers know or care about health or science. But I digress.


Gideon Resnick: Yeah. And for context, Under Roe v. Wade and the other major abortion rights case, that is Planned Parenthood vs. Casey, a state cannot prohibit a person from terminating their pregnancy before quote, “viability”, which occurs around 24 weeks. That is nine weeks more than what the Mississippi law would allow.


Josie Duffy Rice: Right. It would be a really big restriction, right, on current abortion access. So the very same day that this act became law, Jackson Women’s Health Organization, which is the only abortion clinic in the entire state of Mississippi, filed a lawsuit arguing that the law violated the Constitution. And the Federal District Court and appellate courts agreed with Jackson Women’s Health, unsurprisingly, because the law was a clear violation of Roe v. Wade, right?


Gideon Resnick: Yeah. And yet the Supreme Court has still decided to hear this case, which is unusual.


Josie Duffy Rice: Yeah. So that’s our first sign that something is amiss here. Even the very conservative 5th Circuit Appeals Court was like, No Mississippi, you can’t do this. This isn’t even controversial. It violates an established constitutional right. So the fact that the Supreme Court is like, Well, let’s hear them out, is not a good sign.


Gideon Resnick: No, it is not. And this is the second major abortion case that the High Court has heard this year. We talked a little bit about the other one on the show already, that is the Texas law banning abortion after six weeks.


Josie Duffy Rice: Yeah. So in the previous case, which the court decided in September, the Texas law at issue SB 8 worked a little differently. First of all, SB 8 effectively banned all abortions after just six weeks of pregnancy versus Mississippi’s 15-week limit. But more relevantly, the law relied on a weird procedural enforcement trick. I won’t get into the technicalities on this, but the bottom line is that the Supreme Court blamed their refusal to overturn SB 8 on the procedural enforcement question, rather than the substantive question of whether or not the law was legal. In fact, they said that their decision didn’t mean that the abortion ban was legal. So that’s why the Mississippi case is such a big deal, and even a bigger deal than the Texas case, right? It’s a clear law that Mississippi passed knowing full well that it violated the constitutional rights of people seeking abortions. So this time the court is going to have to address substantive questions and it doesn’t look good.


Gideon Resnick: Yeah. And let’s talk about that a bit more, Josie. So there are nine justices: six consistently conservative, three consistently liberal. You said it’s not looking good, but what does that exactly mean here? Can you lay out the spectrum of possibility if there is one, on how the justices could rule, and what listeners should be looking out for as this gets started?


Josie Duffy Rice: Absolutely. So I would say there are three different general possibilities. The super technical question in front of the court is whether all pre-viability prohibitions on elective abortions are unconstitutional. So it’s a slightly more narrow question than: do you have a constitutional right to abortion? And the court can answer this question one of three ways. So first, at least in theory, the court could just uphold Roe entirely like they have done for decades, right? And they could say, Yes, all abortion bans before viability are unconstitutional. And that could be that. I will tell you, I think there is virtually no chance of that happening. It’s very unlikely. Even when Kennedy and Ruth Bader Ginsburg were on the court, abortion rights barely won out all the time. Lots of those cases were decided 5-4. And now we replace those two justices with staunchly, notoriously anti-abortion justices. So I have real trouble believing the court’s going to say, like, No, Roe’s fine, you know, no notes. It doesn’t seem like it’s going to happen.


Gideon Resnick: That does not seem to be the case. So moving on, then what is the second option here?


Josie Duffy Rice: The second option is what Vox characterized as a backhanded overruling, where the court could quote, “hand down a disingenuous decision that burns the constitutional right to an abortion to the ground.” In other words, they could rule against abortion rights and find that there are pre-viability prohibitions on abortions that are constitutional. But they could still not explicitly overrule Roe, right? They could just chip away at abortion rights little by little until they basically don’t exist.


Gideon Resnick: Yeah. And so the likelihood of that happening is what, do we think?


Josie Duffy Rice: I think it’s really quite possible, maybe even likely. I don’t know what difference it really makes. Even if the court doesn’t say there is no constitutional right to terminate a pregnancy, if they chip away at it like this, Roe is as good as dead anyway, right?


Gideon Resnick: Yeah, in a sense, it’s like the Texas law, right? The court says, Well, this is not us overturning Roe, but if you are a pregnant person in Texas, you have no right to an abortion right now.


Josie Duffy Rice: Right, right.


Gideon Resnick: So what is the last possibility here, then?


Josie Duffy Rice: So the last possibility is that the court could just explicitly state that there is no constitutional right to abortion. They could do what many of us fear, and just straight up overturn Roe and Casey.


Gideon Resnick: Wow.


Josie Duffy Rice: On one hand, this seems sort of unlikely only because the court likes to couch its inhumanity in technicalities and exceptions and legalese, right? A part of me feels like they’d rather make it look like they haven’t gutted the law, even if they know that they have. But on the other hand, Jay Wills, the Editor in Chief of the legal site Balls and Strikes, made a great point: many of these justices are ardently anti-abortion, and they have been that way their entire lives, right? They’ve hoped their entire career to have the opportunity they have right now. And many of them are on the record saying they don’t believe Roe is rightly decided. This is the moment they’ve been waiting for. So I think there is a very good chance they just decide to completely obliterate a woman’s right to choose.


Gideon Resnick: That is beyond bleak. So lastly, here then, can we talk about who would actually pay the price here if they do overturn Roe?


Josie Duffy Rice: Yeah. If Roe is overturned, a person’s abortion rights will depend on what state they live in, basically. In blue states, it’s possible very little will change for pregnant people. In red states though, those rates will probably cease to exist. In many of these states, abortion access is already basically impossible. As we mentioned, Mississippi has just one abortion clinic in the whole state, right? For people with access and money and resources, they will likely be able to obtain an abortion even if Roe is overturned. They’ll be able to travel to another state, for example. That’s not to say it won’t impact them, of course, but it won’t be insurmountable. But it’s other people, without resources, overwhelmingly poor people and people of color, who are suffering already in the restrictions that already exist and will suffer even more if the court strikes down the right to an abortion. So it’s not looking great, and it’s really scary for those women in particular. We will bring you more coverage on this in the days after oral arguments, and we can expect the justices ruling to come out sometime around next summer.


Gideon Resnick: Whoo. Heavy. Yeah. Let’s turn now to some updates on the Omicron variant. So one primary thing that we learned yesterday is that the variant was actually in Europe prior to South African scientists discovering it and alerting the World Health Organization.


Josie Duffy Rice: That seems like a pretty big deal, right? Can you tell us what else we found out, Gideon?


Gideon Resnick:  Yeah. So this is basically coming from Dutch officials. They reported this yesterday. And they said they retested samples that were taken on November 19th and 23rd—those were two positive results that they had in the Netherlands—and now they discover that they were in fact, Omicron. So to your point, Josie, this adds a new wrinkle to the question of where this originated from, which is still unanswered, especially as criticism continues about travel bans that several countries hastily implemented. There is a big difference between “it was identified here” and “it came from here” and we simply just don’t know the answer, right? One prominent example of said travel chaos: last Friday, a number of planes from South Africa were on their way to the Netherlands right as the travel restrictions were announced. There’s a good Times story we can link to on it and what that might mean in terms of spreading the variant. There were reportedly a dozen or so Omicron cases identified from those flights. And then as for these other cases that came from November 19th and 23rd. It’s not clear yet whether those people traveled to southern Africa.


Josie Duffy Rice: Right. And Brazil and Japan just discovered their first cases, right? Again, demonstrating how travel bans alone really can’t contain new variants. By the time you institute the ban, it’s probably too late, right? But we’ll get back to all of this soon. But is there anything else to go over before we move on?


Gideon Resnick: Too many things, but just a couple. The Financial Times spoke with Moderna’s CEO who is basically speculating that their vaccine would be less effective when it comes to Omicron as compared to other variants. He said that was based on initial talks with scientists. But again, take that with the grain of we-need-to-know-a-lot-more salt—a lot of that that we’re consuming recently. Then on vaccines more broadly, a federal judge issued a preliminary injunction yesterday to block President Biden’s vaccine mandate for health care workers across the country. That was actually set to start next week. And lastly, an FDA panel narrowly endorsed Merck’s COVID pill treatment in a 13 to 10 vote for certain individuals at risk of severe illness. We’re going to link to a story that breaks down some of the panel’s questions and concerns there, and hopefully get back to that later. More on all of this very soon, but that is the latest for now.


It is Wednesday WAD squad, and for today’s Temp check, we are talking about the greatest honor an individual can receive: the legendary singer and entrepreneur Rihanna was declared a national hero by Barbados yesterday, just hours after the island nation formally cut its nearly 400-year old colonial ties by removing Queen Elizabeth as head of state.


[speaker] We therefore present to you the designee for national hero of Barbados, Ambassador Robyn Rihanna Fenty. May you continue to shine like a diamond and bring honor to your nation by your words, by your actions, and to do credit wherever you shall go. God bless you, my dear. Thank you.


Gideon Resnick: Wow, that was truly lovely. Using the song lyric as well was a genius touch. Prince Charles attended the ceremony on behalf of his mom and spoke out against the British colonial history of slavery in Barbados. The Prime Minister of Barbados, Mia Mottley, gave Rihanna her new title in honor of quote, “her creativity, her discipline and, above all else, her extraordinary commitment to the land of her birth.” So Josie, how are you reacting to Rihanna’s new national hero status?


Josie Duffy Rice: OK. I think the only fair thing to happen here would be for Rihanna to now be made the Queen of England. That’s the only right way to handle this. What do you think?


Gideon Resnick: Yeah, I think once you have this honor bestowed on you, that is the natural order of inheritance in British royalty, and it’s time to make it so.


Josie Duffy Rice: We are monarch experts over here, as you can tell.


Gideon Resnick: We are. We have studied it for many years. We love it though. It is great. Just like that, we have checked our temps. They too are shining bright like diamonds, and we’ll be back after some ads.


[ad break]


Gideon Resnick: Let’s wrap up with some headlines.


[sung] Headlines.


Gideon Resnick: At least three students were killed and eight others wounded, including a teacher, when a 15-year old opened fire at Oxford High School. This happened yesterday afternoon in a suburb just north of Detroit. The Oakland County Undersheriff Mike McCabe, said they arrested the suspected shooter, a sophomore at the high school, and recovered the semi-automatic handgun used in the attack. As of our recording time on Tuesday night, authorities said they don’t know the motive yet. They also said that the students who died were aged 14, 16 and 17-years old. Two of the injured were in surgery last night, and six others were in stable condition.


Josie Duffy Rice: Horrible, horrible news.


Gideon Resnick: Yeah.


Josie Duffy Rice: A quick follow up on yesterday’s news: CNN has suspended Chris Cuomo indefinitely, after reviewing new evidence showing that he was heavily involved in crafting his brother Andrew Cuomo’s defense against numerous allegations of sexual harassment. This comes after New York Attorney General Letitia James released damning text messages on Monday. In a statement, CNN said quote, “When Chris admitted to us that he had offered advice to his brother’s staff, he broke our rules and we acknowledge that publicly. However, these documents point to a greater level of involvement in his brother’s efforts than we previously knew.”


Gideon Resnick: They can both talk about pasta dinners in unemployment and peace. There’s going to be do-over in the fight to unionize Amazon’s warehouse in Bessemer, Alabama. Workers originally voted down the effort back in April. But in August, an official with the National Labor Relations Board alleged that the company used several tactics to discourage workers from voting—yes, they did. On Monday, a regional director with the board agreed, setting the stage for take two. Meanwhile, labor groups have also accused Amazon of underreporting how many of their employees contracted COVID in their facilities last year. In 2020, Amazon claimed that of its 20,000 workers that caught the virus, only 27 of them caught it at work. The labor organization, The Strategic Organizing Center, said that the number is way too low and it quote, “defies science and logic.” I tend to agree. I’m confused there. They’re calling for a full investigation into Amazon.


Josie Duffy Rice: Honestly, this is one of my favorite things ever that Amazon just decided that only 27 people caught it at work.


Gideon Resnick: I don’t follow it.


Josie Duffy Rice: It’s too much. Donald Trump’s former chief of staff, Mark Meadows, has agreed to cooperate with the House Committee investigating the January 6th insurrection. He said he’ll testify before the committee and also provide them with relevant documents. This decision is a significant change because he previously objected to working with the committee, claiming he had executive privilege from the former president—that’s not how it works. These men learned how our government worked from a barely functional VHS copy of Schoolhouse Rock that had been damaged in a flood. Meadows is taking a different path than Trump’s former aide Steve Bannon, who was charged with two counts of contempt by Congress for not cooperating with the same investigation. Bannon has been on a media blitz leading up to his court date on December 7th, which Justice Department prosecutors want to limit because he’s been sharing documents with the public before his trial. Meanwhile, the House Committee will meet today to vote on another criminal contempt referral, this time for Jeffrey Clarke, an ex-Trump Justice Department official who has also refused to cooperate.


Gideon Resnick: I was wondering where my Schoolhouse Rock VHS that I lost in the flood had gone, and thank you, Mark, for finding it. One man has the tools to heal Pennsylvania’s wounds. These tools are not supported by empirical data and the medical community considers them to be very dangerous. It’s Mehmet Oz, better known as Dr. Oz from The Oprah Winfrey Show, who announced this week that he is running for Senate in Pennsylvania. As one of the country’s most prominent TV physicians, Oz has often given baseless medical advice. One 2014 analysis in the British Medical Journal said that less than half of his recommendations were supported by evidence. Now, he hopes to bring that creative mind to the halls of Congress. Here’s a clip from his announcement video, which gave little to no insight into his policies:


[clip of Mehmet Oz] Pennsylvania needs a conservative who’ll put America first, one who can reignite our divine spark, bravely fight for freedom, and tell it like it is. That’s why I’m running for Senate.


Gideon Resnick: That’s right. Everybody else runs to tell it like it isn’t, but he is an exception. Oz is one of many candidates running to replace Republican Senator Patrick Toomey, who plans to retire after representing the swing state for 10 years. He is stepping up after the withdrawal of Trump-endorsed Senate candidate Sean Parnell, who suspended his campaign last week after a judge determined that he had abused his wife and he lost custody of his children. Dr. Oz has some absolutely wretched shoes to fill.


Josie Duffy Rice: Yeah, this is great for me because Marjorie Taylor Greene is from my state, and Pennsylvania has really given us a run for our money. So thank you.


Gideon Resnick: That said, I suppose, thank you. And those are the headlines.


Josie Duffy Rice: One more thing before we go: are you still looking for the perfect gift for this holiday season? Check out our Crooked holiday collection for ornaments, WAD tees, desk calendars, and more. Shop all the new holiday arrivals now at Crooked.com/store.


Gideon Resnick: That is all for today. If you like the show, make sure you subscribe, leave a review, debunk a treatment endorsed by Dr. Oz, and tell your friends to listen.


Josie Duffy Rice: And if you’re into reading, and not just reasons why Rihanna is a national hero like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Josie Duffy Rice.


Gideon Resnick: I’m Gideon Resnick.


Josie Duffy Rice: And visit our used mask page on depop!


Gideon Resnick: The listings are incredible and you could buy one for my mom’s birthday, which is today, that I forgot to say Happy Birthday.


Josie Duffy Rice: Oh, my gosh!


Gideon Resnick: And now I remembered and I made up for it. There it is.


Josie Duffy Rice: Happy birthday Gideon’s mom.


Gideon Resnick: Thank you. I will not be in trouble now.


Josie Duffy Rice: We love you.


Gideon Resnick: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Jazzi Marine and Raven Yamamoto are our associate producers. Our head writer is Jon Millstein, and our executive producers are Leo Duran and me, Gideon Resnick. Our theme music is by Colin Gilliard and Kashaka.