In this episode of Sages of the Sun, we sit down with the brilliant A.R. Hoffman to discuss the legal history and constitutional debate over the right to abortion.

Mr. Hoffman is a reporter and assistant editor of the Sun, where he covers politics and culture. He holds a Ph.D. from Harvard and a law degree from Stanford, and is a 2021-22 Journalism Fellow at the Hartman Institute.

A.R. Hoffman:  Let me start with the substance of the decision and we can go from there.  Of course I’m eager to hear everyone else’s thoughts as well.  I had coffee this morning with a friend who had clerked on the Court, not currently clerking, but had clerked on the Court before, not for a justice that’s currently sitting on the Court.  His take, after reading this opinion, he said that Justice Alito probably had this opinion written for years.  It’s a pure distillation of the case for overturning Roe [v. Wade] in almost its platonic form.  I think in one way that’s helpful because we get the arguments in almost a straightforward way.  In another sense, and here I want to caveat it, you know this is not a document that has been exposed to other justices.  It’s not a document that’s gone through the grinder of a sort of conference and horse-trading.  The final document, which we will know what that looks like in June and in the early summer, might look very different.  I think only when that final decision comes into view will we truly understand what happened here and — this snapshot that we’re getting, a decision circulating in February — we’ll see how the story ends.  

Caroline Vik:  How does the process work?  Is the way to understand this is it’s just Alito’s opinion, then he circulates it?  You’re talking about horse-trading.  Is that in order to get people to sign on to his opinion?  Do they make edits or adjust it?  And if they can’t get enough, is that why you get separate opinions?  What exactly is the horse-trading that happens?

Hoffman:  The Court hears arguments in the fall, sometimes after.  Pretty soon after that, they go into conference.  In the conference, the justices sit around and say how they are going to vote.  So, you know, this is not Alito just writing on his own.  Alito

was writing for the majority, but this is a draft of that majority opinion.  We also know that over the course of months that calculus can change.  Famously, Chief Justice Roberts 

switched his vote in the Obamacare tax case and otherwise.  So it’s a snapshot of where the Court was in February and seemingly where the Court was.  [There] was a majority to overturn Roe, a minority not to, and Roberts perhaps trying to stake out a middle ground.  That I think is the best that we can tell about what this opinion reflects.  My friend who had clerked on the Court said, “You know it’s authentic because it’s so infused with Justice Alito’s voice.”  That to him was the watermark of authenticity.  To cut to the argument itself, the easiest way to understand is that there was a period in the sixties and seventies where the Court was faced with new challenges.  These had to do largely with cases of abortion and contraception.  There’s nowhere in the Constitution where these issues are addressed.  So what the Court did is it found in its understanding of the 14th Amendment as sort of a catch-all category.

Vik:  What does the 14th Amendment say?

Hoffman:  It says that people cannot be deprived of life and liberty without the due process of law.  Even though that doesn’t specify a specific right, the argument is that the due process of law means that the government cannot arbitrarily enact legislation that cuts somehow to questions of liberty.  The idea of the right to privacy, which formed from this reading of the 14th Amendment — and we had a piece on this just yesterday — had evolved in the early 20th century around issues of the rise of photography and specifically the idea of your image being circulated in public and tabloid journalism.  This right then sort of migrated into the constitutional arena around the notion of being left alone.  The idea of the notion of being left alone was sort of glossed onto the 14th Amendment.  The argument was that the government cannot intrude itself in these areas.  Roe and Griswold [v. Connecticut] — Griswold is the case arguing that marital couples, it was later extended to unmarried people, cannot be denied the right to contraception constitutionally.  Roe extended that to constitutionally protected abortion with qualifications of course.

Vik:  What other things has the right to privacy been applied to in this 14th Amendment sort of way?

Hoffman:  The gay marriage decision, Obergefell [v. Hodges], is also partially reasoned from this sort of right to privacy.  The issue becomes what kind of rights are guaranteed here.  This is the core of Justice Alito’s and the majority’s — as far as we know it — argument that for a right to be protected it has to have been sort of well understood and ingrained in American legal culture prior to it being constitutionally protected.  And so the constitutional language is one of ordered liberty and deeply rooted in America in legal vernacular.  And so the fear is that if something is not rooted in that way, the cause becomes unmanageably broad.  

Seth Lipsky:  It’s hard to root abortion that way because it was illegal for the whole time it was supposed to be.

Hoffman:  Exactly.  So Justice Alito’s argument was that not only was abortion not rooted, it was proscribed.  It was a crime for most of that period.

Vik:  So I haven’t looked into the history of it that much.  I’ve started.  But from my brief reading from maybe yesterday, it was sort of unacceptable but not illegal initially for a long time, and then it became illegal, and then started to be legalized.  So it doesn’t seem like for all of eternity it was illegal.  

Hoffman:  Right, and often what happens in these cases is you have sort of these potted histories of these kinds of practices and Roe did the same thing.  But Roe found closer to what you just said, that this wasn’t actually black and white.  There had been periods where, in religious thinking and civic practice, the status of abortion was not so clear cut, or regulated perhaps as it is now.  This brings up the question of all these other decisions.  What I called in the piece as “Roe’s fellow travelers” — Griswold and Obergefell.  Contraception and gay marriage — Here the argument that Justice Alito said was basically “Well they’re different because they don’t involve taking a life.”  It’s just a fundamentally different sort of thing.  There are those who are saying “Well wait a second.  By Justice Alito’s logic, all these things are vulnerable too.”  Were these things really deeply rooted?  Were they really part of ordered liberty before?  I spoke in my reporting — for the piece on the right to privacy — to two professors who gave me two opposing viewpoints.  One said this threatens all of those decisions.  That this precedent, undoing Roe, you can’t undo Roe and keep everything else.  Another professor said he thought that it is actually by excising Roe that you affirm whatever is left.  That actually the price for overturning Roe is going to further instantiate these other opinions.  Justice Alito very clearly states that this decision applies only to abortion.  It is not a more broadly applicable reading of other decisions grounded in the 14th Amendment. 

Lipsky:  Why shouldn’t it invalidate those other things?  Why are those more sacred in the first place?  In fact, they’re more recently protected than abortion.  Some cases have been as criminally illegal as abortion laws.

Hoffman:  Let me just mention one other case that’s in this group and that’s the case of Lawrence v. Texas, which ruled that the government cannot outlaw consensual sex between two adults.  It was a case concerning sodomy and gay sexual relations.  To Seth’s point and again in Lawrence, you also have a sort of history of these things.  I think two things jump out.  One is that the practice of Supreme Court decision writing is always very conscious of bounding itself.  So Roe is the case before the Court and I think Alito wanted to make clear that this is the only case that’s being decided here.  The question is does the logic open up these other cases to review?  One thought I would have about why, especially the gay marriage one would be less likely to be overturned, would be something called “reliance” and that just means that lots of people have gotten married on the assumption that it is constitutionally protected and to undo that right would be a sort of societally disruptive thing in the way that prospective abortion is not as much.  The other political point — the Court is always both sort of legal and political — is that on questions of gay marriage, questions of contraception, this is a point that the Wall Street Journal featured in an editorial on gay sex — societal opinion has shifted dramatically to be supportive across almost all sectors of society.  That hasn’t happened with abortion.

Lipsky:  Well the question there, and how do you feel about this, the Court isn’t saying you can’t have abortions.  It’s saying, if you want to protect abortions, you can only do it legislatively. 

Hoffman:  In a way the Court is sort of in some sense giving up much of its power.  It’s sort of adjusting its role in this process and returning it to the legislative and electoral process.

Lipsky:  And there’s no reason why the federal government couldn’t step in —

the Congress — or is there?

Hoffman:  I don’t think there is.  The question is from what side?  You’re already seeing Democratscrats talk, and Senator Sanders has mentioned this as well as Senator Warren, about passing a nationwide law guaranteeing a right to an abortion.  You also have, on the right, a sense of opportunity here as well.  Depending on how elections go in November, you know, President Biden is still in the White House, but looking down the line, 2024 or 2025, might we see something to that effect.  But in the meantime the action will be at the state level.

Lipsky:  On the gun control debate, for years the conservatives have been trying to get Congress to pass a national gun permit law, a must-issue gun permit law to national level.  

Hoffman:  Yeah.

Lipsky:  Similar opportunity.

Vik:  Ari, are there other core threats to his argument or is this “it wasn’t deeply rooted” like the fundamental argument?

Hoffman:  Yeah I mean another interesting thread is that, you know, what Roe was trying to do was not only come out with an opinion, but it prescribed a kind of standard, the famous three trimester test.  In the first trimester the balance is in the favor of the woman’s choice.  In the second trimester there’s a kind of mix of interests.  In the third trimester the government can regulate abortion in the interest of the life of the child.  One of the things that Justice Alito says is that this sounds more like a congressional law than it does like a Supreme Court decision.  So to some extent I think what Justice Alito is saying is not only is this a question of constitutional and legal history, it’s a question of what should the Court be doing.  On a deep level, I think Justice Alito believes, without even reaching this question of when does life begin — that feature is nowhere in the opinion and it’s interesting because I think a lot of people might think that’s the core question, but it’s not the core legal question — the core legal question is who should decide that?  Here Justice Alito says that a moral and ethical question of such import does not belong to the Court to decide.  This is the sort of decision that we have democratic processes for.  As a society to come to an understanding of how we feel about this…

Vik:  But there are other moral and ethical questions that are settled by the Constitution, yes or no?

Hoffman:  For sure. I mean, that’s the difficulty.  Is this one of those questions? 

Lipsky:  Which is one?  I can’t think of one offhand.

Hoffman:  Well, the other cases we mentioned, gay marriage for example, right?  “What is marriage” is sort of a deep societal question.

Lipsky:  They took it away from the legislatures in Obergefell.

Hoffman:  Right, exactly.  I think there’s no doubt that when the final decision is released, you can expect dissents, maybe the likes of which we have never seen in a Supreme Court decision.

Vik:  I’d argue freedom of speech and freedom of religion are moral and ethical questions.  All major issues are, at some level, moral and ethical.

Hoffman:  Right, and here we sort of return to the fidelity to the Constitution.  I mean, freedom of speech is an enumerated right so debates over speech, I said in the piece, are debatable but defined.  We might argue you and I about where the line should be drawn on speech or we might argue about what the Second Amendment means, but it’s there.  The difficulty with a question like abortion is that it’s not there.

Lipsky:  And that’s the horsepower of the 14th Amendment, right?

Hoffman:  Right.  So there’s been this line of jurisprudence, which was pioneered at the height of the Court’s liberal heyday in the sixties and seventies, in broadening the sweep of its jurisdiction in a way.  It is now being clawed back or restrained by a newly conservative and newly confidently conservative Court.  There’s a lot of speculation about what’s happening here but the notion is that Justice Roberts is increasingly struggling to sort of create consensus in the Court.  That goes to the leak and other things we can talk about as well.

Vik:  Do we have insight into what the opposing arguments will be?

Hoffman:  Yeah, I think the opposing arguments will start with where you started and that’s sort of contesting Justice Alito’s history.  One argument you’ve already seen is how can something be deeply rooted where if the people who would benefit from it were themselves marginalized or not in the heartland of constitutional concern?  Is the test not self-tautological in that way?  Because the only deeply rooted historical exercises you’re going to find will then predetermine what the outcome is going to be.  So I think they’ll be challenged on that point.  I think the core argumentative challenge will be that you cannot distinguish Roe from these other cases.  Of course that goes both ways because I could very well see a concurring opinion from Justice Thomas saying “Exactly, we should throw out all of these cases.”  My hunch is that through concurrences, we might see the full range of approaches to this question.

Vik:  What about people who will vote the same way but for different reasons?  What will their arguments sound like?

Hoffman:  This is something Justice Thomas has often done.  This is to say “Well now I would urge us to reconsider the whole idea of substantive due process, the whole idea that we can find it in the 14th amendment which is not enumerated in it.”  That, I’m sure he’ll say.  I think you’d see from Chief Justice Roberts an attempt to tighten this or limit it.  It seems like what he’s been trying to do and this came up in the Texas case with abortion there.  Justice Roberts was very wary about overturning precedence, trying to limit the scope of this decision.  My sense is that’s probably what he’s working on as we speak.  From the left I think you’ll see a real set of blistering dissents.

Lipsky:  So do you think this opinion is going to hold up until June?  To me, it seems almost prima facie that the motive for this leak was to cause and to erupt protests around the country that will scare the Court off the way it was scared off on Obamacare.

Vik:  I have seen some arguments that they think that the purpose was to lock it in place because if they change their mind now, it’ll seem like they were doing it under political pressure.

Hoffman:  Right.  The first thing I think is what’s the intent?  And then what’s the effect?  It could backfire or not.  In one sense, I have been thinking why now?  This was written in February and has been circulating since then.  I don’t know which way it points.  My hunch again would be something happened within the Court recently and that could have been a shift of vote in one way or another.  I couldn’t tell you which direction that vote went but someone did this because they felt that this was an inflection point somehow.  I think in terms of the strategy of it, it would make more sense coming from the right, but I agree with Seth in that this sort of has the hallmarks of a kind of, you know, screw the system kind of guerrilla warfare that seems more akin with the kind of politics that you’re seeing on the left, that you’re seeing at elite law schools now.  Remember this, you know, we’ve been covering this question of freedom of speech and general constitutionalism at elite American law schools.  Someone who’s a clerk comes directly from that environment, right?  And so one day you’re at YLS in these protests, the next you’re clerking for Justice Sotomayor or whoever I don’t know.  Maybe some of that absolute moral certainty maybe drives you to leak this and short circuit the Court institutionally.  

Lipsky:  Your instinct is that this was done by a clerk?

Hoffman:  It seems to me there’s three groups of people that could’ve done it: one is a justice; two is a clerk; and three is an administrative staff, perhaps sort of a secretary or something like that.  I think if a justice did it, you know, that’s obviously the biggest story.  It seems to me that the person who did it was highly motivated.  A lot of speculation has sort of zeroed in on clerks.  Could it have been left behind?  Maybe it was discovered.  Maybe no one did it.  I don’t know.  Politico hasn’t disclosed.  One interesting question I was thinking about is, you know, Politico is not generally where you think of for Supreme Court scoops and I wonder a little bit what the leaker was thinking going that direction as opposed to people like Adam Liptak, Linda Greenhouse, and other well known Supreme Court chroniclers.  How that worked out is just interesting.

Vik:  What do you think?

Hoffman:  I wonder if one of these people who are deeply enmeshed in the Court, would they have published it?  Given that it would sort of incinerate their relationship with the Court.  Did they turn it down?  Were they offered it?  Interesting questions.  You know Politico is generally seen as non-ideological.  Conservatives believe it leans to the left, but it’s different than leaking it to the Times or to the Journal or something like that. 

Vik:  Fascinating.  Thank you so much for joining us.

Hoffman:  Great to be here.  Thank you so much everyone.  

Sages of the Sun is a weekly podcast produced by The New York Sun. The Sun is committed to upholding the finest journalistic traditions and staying true to our motto, “It Shines For All.”

Seth Lipsky is a seasoned veteran of the news business, and among the most revered American editors. He previously spent 20 years at the Wall Street Journal, launched the Jewish Daily Forward, and first revived the Sun back in 2002.

Caroline Vik has more than a decade of experience in policy-making, with years spent on the Senate Foreign Relations Committee, at the Department of Defense, and on the National Security Council.