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By Why Is This Happening?

Are we on the precipice of one of the most destructive social reversals in the country’s history? President Donald Trump’s nomination of Brett Kavanaugh as the next Supreme Court justice initiated a heated conversation about the future of Roe v. Wade because, should he be confirmed, Kavanaugh would become the deciding vote on a ruling that could alter the lives of millions of women.

This week, Chris Hayes speaks to Nancy Northup, the president and CEO of the Center for Reproductive Rights, about not just the future of Roe v. Wade but about the legal history of abortion rights. They discuss the stakes of the coming fight, the relevance of a 1923 Supreme Court ruling on teaching foreign languages in schools and why Northup thinks a victory for anti-abortion activists could ultimately be catastrophic to their own movement.

CHRIS HAYES: Here we are on the precipice of that maybe being reality, right? Of Roe being overturned or service substantially gutted, and all of a sudden everyone wants to pretend like it's not going to happen, and it drives me nuts. Like, we know what we're fighting about. Like we're fighting about abortion. We've been fighting about abortion for decades and there's a bunch of people this country who want to see us not have legalized abortion who are the empowered political coalition who are now going to try to make that happen. Why are we pretending otherwise?

NANCY NORTHUP: Well exactly. And for those who say, "Well, Kavanaugh is just going to go through. That's who got elected to the Senate. That's who got elected to the presidency." Let him be voted on with his record being clear.

CHRIS HAYES: Hello and welcome to "Why Is This Happening?" With me, your host, Chris Hayes. You may have heard that there are currently eight people on the Supreme Court of the United States. Eight people. Eight is an important number. There were eight for a while after Antonin Scalia died, because there was a nominee named Merrick Garland that Mitch McConnell and the Republicans refused to even consider, and so they did basically a whole term with eight. Now eight, for the math whizzes out there you are noting that that's an even number and that makes it a little hard to get clear majorities, like a 5-4 that you would get with nine Justices.

There are eight again now because Anthony Kennedy retired. Anthony Kennedy retired and Brett Kavanaugh, who is a judge on the DC appellate court, has been nominated to replace him. There's a lot of reasons to think that this is a monumental change to American jurisprudence. Brett Kavanaugh is a product of Republican politics, conservative movement politics. He's the kind of dude who, when he was a young lawyer was working for Ken Starr and like hanging out with Laura Ingraham, just like in the movement, like a soldier, like a soldier. A ride or die soldier for the right. That is who Brett Kavanaugh was.

He's the guy who represented Elian Gonzalez's family in America against the government when that was a huge sort of like culture war flashpoint. He's a guy who went down and worked on Bush v. Gore in the Florida recount to make sure that George W. Bush, even though he lost the popular vote, managed to short circuit a full recount in Florida to make sure that he was made President United States. By the way, Bush v. Gore, speaking of nine, was a 5-4 decision. One of the people of the five was Anthony Kennedy.

So that's an important ... That guy is going to be an important guy. That's a big thing that's happening right now. Brett Kavanaugh. And you know, I think it's fair to look at Brett Kavanaugh's resume and professional career and have like a pretty good sense of like we're Brett Kavanaugh is coming at stuff.

If, I mean, look, if I were nominated for the Supreme Court, which I'm telling, don't ... I mean fine if you do, but don't. I'm not saying you should do that, but just if that was a thing that you wanted to do, if you're listening to this and you happen to be President… It would be fine, it would be fine to say like, I feel like I've got a good sense of how he's going to rule on a bunch of really important stuff. Wouldn't be crazy. I mean I've never been a judge before but like it wouldn't be nuts if you were like, "Chris Hayes as a Supreme Court Justice. Like, I got a sense of like where he's going to come down and a bunch of stuff."

But the thing that drives me bonkers about our conversation around justices and judging is that like a lot of it has to do with pretending that none of us know, like what's up. And it's true that in a huge majority of the cases before the Supreme Court they aren't particularly ideological or partisan. A lot of them really are these sort of technical legal questions. And there's a lot of like 8-0 decisions. There's a lot of like 8-1 or 7-2, like, there's a bunch of stuff that is in that docket that people aren't paying very close attention to. Questions of statutory interpretation, like: this railroad regulation does it apply when the railroad is hauling lumber but not coal? Like things like that. But on these big monumental cases it has been reliably pretty clear which side different nominees are going to be on. And then they got on the court and they're on that side. Neil Gorsuch has not been a disappointment to the conservatives that wanted him appointed. He's ruled with the conservatives.

There's one issue before the court that's the biggest issue. And the reason it's the biggest issue is because it's probably the most intimate way in which the decisions of the Supreme Court and particularly nine individuals, and particularly in this case one man will alter the lives of millions of people and specifically women in this country. And that of course is abortion.

In 1973, Roe v. Wade is decided 7-2 by the court. It holds there as a constitutional protection to the right to privacy that allows one to choose to determine whether or not to terminate a pregnancy and that that zone of autonomy is protected by the Constitution. It is followed by a massive backlash and social mobilization against it; another case in the 1990s called Casey that reaffirms it but limits it, and then a multi decade war on abortion rights and a multi decade defense of abortion rights by two of the most mobilized motivated forces in American politics, the self-described pro-life movement and the self-described pro-choice movement.

We now are at a precipice. Anthony Kennedy was one of the people that voted to uphold Roe and he's gone, and there are pretty clearly four votes on the court right now that would either overturn Roe or just severely gut it, and the next justice would provide them with a majority. There's good reason to think Brett Kavanaugh would be that person. And so, I thought it's a good time to take a hard look at what we're talking about when we're talking about Roe. What are we talking about when we're talking about the right to an abortion in this country and the Supreme Court's record on it and its decisions on it, and what should we make of the upcoming confirmation battle about this individual who very well could be the deciding vote on whether tens of millions of American citizens do or do not have bodily autonomy to choose to carry to term or to terminate a pregnancy?

Those are the stakes before us right now. You can probably tell, to reference my earlier point, where I would be on the Supreme Court on this question. Although, if I were in front of the Senators, I would say, "Well, I haven't. I have not thought about it at all. Actually. I just don't really have opinions on this. I just, I'm a balls and strikes guy. I just get in there. I see the balls, I see the strikes. Call the balls. I call the strikes. Never really thought about Roe." I know that sounds preposterous, but Brett Kavanaugh is going to basically try to do that. That is actually what's going to happen. As ridiculous as it is, and so I thought, "I want to talk to someone who knows abortion, abortion rights litigation better than anyone," and that person, in my mind, is Nancy Northup. Nancy is an absolute top flight advocate litigator.

She's the president and CEO of the Center for Reproductive Rights, and they do ... I think it's fair to say like they do the most front edge litigation for abortion rights in the country. When there's a new law in Mississippi is going to close down the only clinic, like Center for Reproductive Rights is suing. When Texas passes a new law that is going to hammer a bunch of their clinics Center for Reproductive Rights is there. They have been at the front lines, they've argued in District Court, Appellate Court, I think they'd been before the Supreme Court and they know the ins and outs of this battle from a legal perspective, not from the political perspective, not necessarily from the religious perspective. Right? But like what actually the courts are saying about what this right means and how that right is or is not protected. They know it down to the last dot, and never has that knowledge been more important than at this moment, because that right is on the table. It just is.

There's all sorts of people that are going to tell you it's not or that like, oh, whatever. They always say, "They're going to overturn Roe, they're going to overturn Roe," or, "Liberals or panicking," or, "This is scaremongering." No, no, no, no, no. The math here is extremely clear. It's staring everyone in the face and we could be on the precipice of one of the greatest, and to my mind, most destructive social reversals in the country's history. Seriously. That's what we could be looking at. And as we head into that period, think about it. I think it's really important for everyone who cares about this issue, to have some real grounding and clarity in what exactly the legal history of the protection of this right is. And so that's why I learned so much from my conversation today with Nancy Northup.

How did you get into abortion work?

NANCY NORTHUP: Oh, I first started working on advocating on abortion rights when I was in college. I worked for the Rhode Island women's political caucus and went down to the Rhode Island capital and would talk to legislators there about the need to make sure that women had access to safe and legal abortion.

CHRIS HAYES: Why?

NANCY NORTHUP: I was raised as a feminist and someone who believes that women need to have control over their bodies and their lives and their futures. And so that was always just something that was part of my upbringing. I grew up all over the country, small town in Texas and California, born in Indiana, raised in western New York, little bit in Connecticut and it was just a constant. I was raised as a Unitarian Universalist and it was important in my religious community that we support women's rights. And so that just is how it was always part of what I advocated for.

CHRIS HAYES: You're someone that works on the sort of legal battles over abortion rights. Now, let's start with Roe. There's a lot of things that are really interesting to me about Roe. One is that it's a 7-2 decision. Am I right?

NANCY NORTHUP: 7-2.

CHRIS HAYES: And it's not like a super controversial decision at the time, is my understanding.

NANCY NORTHUP: Well, that's right. When it came down, it was not the wars we see today over it. States had been talking about the need to liberalize their abortion laws. It was understood in the context of public health. You talked to any doctor who went through their residency before Roe v. Wade and they all knew that the obstetrics wards, emergency wards were filled with women who had attempted to have unsafe abortions. So they knew it was a public health issue. People knew people who had to go through, you know, enormous difficulty if they were not in one of the very small number of states that had legalized abortion. So it was understood as this public health problem that had to be corrected and that women would need to have access and that it was part of healthcare.

CHRIS HAYES: But that's like a policy argument, right? Like what you're describing is a policy argument. I mean, there's a legal challenge that's brought. What's the substance of the legal challenge? I mean, there's a law banning the anonymous plaintiff in this case from getting an abortion. And what's her argument before the court about why that's unconstitutional?

NANCY NORTHUP: Well, it builds upon the arguments that were made in the contraception cases. So in the 1960s you began to have the challenge to laws that didn't even allow married couples to use contraception. The first law being Griswold v. Connecticut that came to the Supreme Court in 1965 and in Connecticut it was not legal for married couples to use contraception.

And in that case the Supreme Court looked at his rulings and a lot of areas and came to the conclusion, first resting heavily in that case on the privacy of marriage, that couples had to be able to make the decision about whether or not to use contraception. And then in the next case in Eisenstadt v. Baird in the early 70s, the court said, "Well, you know, it's not just about married people. It's about the ability to make the decision whether and when to have children." So by the time Roe v. Wade comes along in 1973, the next year, the court has already been understanding that this decision about when and whether to have children is one for the woman to make. And so when they decide Roe, it's an extension of those cases they'd already been looking at in the area of contraception.

CHRIS HAYES: There's this thing you hear all the time about how like Roe is just a, it's a sloppy decision. It's a bad decision. And you know, even liberals will concede that Roe not a good decision on the law. What do you think of that?

NANCY NORTHUP: Well, I think it's off base. If you think about it, Roe actually you need to pull back and it is part of, along with the cases that came after it, a hundred years of decisions around personal liberty and family that go back to the 1920s. So you have about 50 years of case law before Roe v. Wade, and we've now had 46 years since. And all of these are about understanding the personal liberty guarantees in the 14th Amendment. And these cases start in the 1920s after the first World War when in a xenophobic moment in this country states were passing laws, and the first to get challenged is Nebraska, which said you can't teach a foreign language to someone under the High School age. And it came out of this fear of foreigners.

CHRIS HAYES: Wait, wait, wait, wait. Nebraska passed a law you can't teach a foreign language to minors?

NANCY NORTHUP: That's right. Yes, exactly. And the case-

CHRIS HAYES: Well, that doesn't seem like a good idea.

NANCY NORTHUP: The idea was, and it gets discussed with seriousness in the Supreme Court, that of course they understand the impulse. If a child is educated in a foreign language, they may think like a foreigner. And the case actually came up in the context. Again, this is right after the first World War. It came up with the context of a child who's being taught German and the state of Nebraska. So it goes up to the Supreme Court. The Supreme Court says like, "We get it, like we want people to think like Americans. However, however there is liberty protected in the Constitution, and that includes parents ability to make decisions about their children's education. So you cannot, Nebraska, ban the teaching of German to young people." And that's-

CHRIS HAYES: Holy potatoes. I did not ... Maybe people who are listening to podcasts right now are being like, "Duh, everyone knows about that case." But I did not ever. I did not know about that case.

NANCY NORTHUP: Yeah. And these cases are cited in, we'll get there in a moment, in Planned Parenthood versus Casey, which reaffirms the right to abortion. They go through these cases that began the 1920s. Meyer v. Nebraska, this 1923 case about teaching German. It's followed in 1925 by case Pierce v. Society of the Sisters. And this case comes out of Oregon, which had banned the ability to go to anything but a public school.

So again, people are concerned, they're concerned with Catholics going to parochial school. And again, what they're saying is we want you to think like Americans. We don't want you to be taught things that aren't going through our public school process. Goes up to the Supreme Court, and again the Supreme Court says, "No, that's part of the liberty of parents."

CHRIS HAYES: That is wild. Oregon banned parochial schools?

NANCY NORTHUP: Absolutely. Absolutely.

CHRIS HAYES: And in both cases, I just want to be clear here, it's the 14th amendment that is protecting your liberty to say, "No, I can teach my kid German and I can send them to a Catholic school."

NANCY NORTHUP: Right, the 14th amendment protects your right to liberty and says, the government can't violate that without due process of law. And again-

CHRIS HAYES: Just to be clear there, the violation is it's a due process violation of the 14th amendment to say, "Nope, you can't teach German."

NANCY NORTHUP: That's right. Because the notion was and discussion and settled, right? By the time they decided that case is well, not depriving somebody of liberty without due process. Does that just mean procedural? Like, is that just about procedure? No, they said there's a substance to it. We have liberty rights as American citizens and it's what eventually in the Planned Parenthood v. Casey case, the three justices which are Kennedy and Souter and O'Connor who are going to form the opinion in that case, that that becomes the Supreme Court's ruling because they're the three sort of in the center and they say it's a promise of the Constitution that there's realm of personal liberty, which the government may not enter.

And in these cases going back to these cases about educating children, going up through the contraceptive cases and then later developing into the cases around obviously right to have sexual intimate relations with the partner of your choice to the marriage cases the court is going back again and again to say what is this zone of personal liberty, which the government may not enter? And it's all grounded in the 14th amendment. It's grounded in that language in the 14th amendment.

CHRIS HAYES: Right. The constitution protects in an active fashion your right to determine your world and your affairs and what your family does and what your child will learn to such a degree that it violates that in some deep sense for the government to pass a law saying you can't teach your kid German.

NANCY NORTHUP: Exactly, or you either have to have a child you don't want, or you can't have a child. And in the Planned Parenthood v. Casey decision, which is the 1992 decision, which was an enormous showdown about whether Roe v. Wade was going to be overturned. I mean, Roe v. Wade was 1973, and you have, over the next two decades, an enormous amount of battling over it, an attempt to repeal it, criticism of the case, and when it gets before the court in 1992, there's a wholesale reexamination of whether this is going to be followed or not.

And so, in that decision, which again, Kennedy, who of course has retired and will be replaced by the next justice to get on the Supreme Court, Kennedy, O'Connor, and Souter go through all the good reasons why Roe v. Wade is part of this tradition of substantive liberty. They talk about the cases around marriage and procreation, contraception, family relationships, child-rearing, education, what they call "the realm of family life." And they talk about how the government can't interfere with a person's most basic decisions about family and personhood. Again, that's what it means to be a free people in a free country, that these choices are so central-

CHRIS HAYES: But wait a second, you're doing something interesting to me that I want to call attention to. I'm asking about Roe, and you're shifting to Casey.

NANCY NORTHUP: Well, the-

CHRIS HAYES: Because it sounds to me like you like the Casey decision better, and you like its grounding better than you like the Roe one.

NANCY NORTHUP: Well, I will say that Casey ... And there are things that ... You know, Casey did weaken the standard in Roe, so from ... You know, Roe I believe was right in saying that the Court had to apply strict scrutiny to looking at state restrictions on access to abortion.

CHRIS HAYES: Strict scrutiny is basically the kind of highest level of constitutional or judicial scrutiny that a court can give. It's to things like racially discriminatory policies.

NANCY NORTHUP: Yes, it's what are considered to be fundamental rights. And Roe said that, and it was important, and lots of laws were struck down post-Roe based on the fact that it applied that toughest standard. And the Casey decision weakened it and introduced a standard that is called the undue burden standard, which, for about another 25 years, is unsettled, and there's a lot of litigation. But then, in the Whole Woman's Health v. Hellerstedt case two years ago in 2016, the Court made clear that that standard is real and has teeth, and it really means what it says, that the state can't put ridiculous hoops in front of a woman.

But back to your question, why do I talk about Casey so much instead of Roe? I think because Casey really does go through all of the ways in which a woman's right to decide to end a pregnancy is tied to this history. It just, it goes through it in a fuller way that wasn't done in Roe, and if you think about it, it makes sense. There's now, by the time Casey comes along, there's been 20 years of women's experience with making decisions about abortion, so now, women now are able to talk about it more than they had been in 1973 when it was decided, right? For most states, except for New York and a handful of others, it was illegal.

So the Court talks about how it is a choice that's central to women's personal dignity and autonomy. It talks about the generations of women who have relied on it. It talks about how the destiny of a woman must be shaped on her own conception of her spiritual imperatives in place in society, because what's also happened since Roe is the women's movement. You know, Roe was kind of ... Came out in 1973, it is not the height of the women's movement, it's the ... Sort of the starting of it, and so the language and articulation of it is less widely accepted. I mean, it was an all-male Supreme Court, and they're writing an opinion sort of not really in the context of either a constitutional or broader societal understanding or consensus about women's equality, which you have much more of by 1992 when the Casey decision is rendered.

And so, I think that decision ... And we now do have one woman on the Court when Planned Parenthood v. Casey is decided Justice O'Connor is now on the Court.

CHRIS HAYES: Got one in there.

NANCY NORTHUP: Got one in there. And so, it just speaks of the woman's experience. She's central to that decision in a way that she's not central in Roe.

CHRIS HAYES: Your answer is that you like Casey more than Roe.

NANCY NORTHUP: I like Casey in its language more than Roe, but-

CHRIS HAYES: Its language in articulation, not in its standard, because the standard is weakened.

NANCY NORTHUP: Correct. That's right.

CHRIS HAYES: But you actually think the architecture of that decision, to you, is sort of... Sounds to me, again, more robust, better grounded, more full than what's articulated in Roe.

NANCY NORTHUP: Absolutely.

CHRIS HAYES: So, Roe's in '73, right? There's not a kind of immediate reaction; then there's a kind of growing movement against abortion rights in the country. It culminates in the big showdown in Casey, and just to go back to that, Casey's '92, like, there was a really open question about whether Roe survives that case. In fact, as it goes into the Court, my understanding is that at the time, people were thinking Roe might be overturned, right?

NANCY NORTHUP: Absolutely.

CHRIS HAYES: Like, that was going to be like... My understanding, again, and particularly from the perspective of anti-abortion-rights folks, like they'd gotten there. They'd climbed to the top of the hill, they were there. They had, they thought, the justices on the Court to do it, and it was going to happen.

NANCY NORTHUP: Yeah, and we know from Justice Blackmun's papers that in fact, Kennedy was going to vote the other way. And so, it is only in this cobbling of this decision, O'Connor had begun talking, and-

CHRIS HAYES: Wait, Kennedy was going to strike down Roe?

NANCY NORTHUP: That's right.

CHRIS HAYES: Wow.

NANCY NORTHUP: And so, eventually he comes around to the decision that most think O'Connor, of course, was the architect of, of this undue burden. And in the end of the day, I mean, of course the other reason that I like Roe in terms of its standard is also in terms of its outcome. I mean, Casey in fact upheld much of the restrictions that were before it, so Casey upheld the informed consent script in the state of Pennsylvania that a woman had to be told, and the fact that she had to go home for 24 hours before she could have an abortion and think about it. That was upheld; it upheld for a minor to have to have the consent of one parent, as long as there was a judicial bypass procedure. And the only restriction that it struck down was the Pennsylvania law that required a wife to tell her husband that she was going to have an abortion, and that they found to be unconstitutional and an undue burden.

CHRIS HAYES: So, just to be clear here, so you've got... Roe says there is a constitutional right to this, the Constitution protects your right to do this.

NANCY NORTHUP: Mm-hmm (affirmative).

CHRIS HAYES: A bunch of activists start passing varieties of restrictions in state laws that are then being held up, getting to courts and litigated. Pennsylvania passes a sort of package of restrictions about minors, about telling your husband, about informed consent, that you have to listen to the script, that you have to wait 24 hours, et cetera. That legislative package is what the court is deciding, right, which is what's being argued. And what you're saying, and what happens in Casey, is they actually end up upholding a lot of the limitations, because they say they fail to meet this undue burden, that not undue burdens ... Due burdens? I don't know what you call burdens that are not undue. But those are okay, but undue burdens are not.

NANCY NORTHUP: Exactly. And they did find that with respect to "You've got to tell your husband," that that was an undue burden.

CHRIS HAYES: I mean...

NANCY NORTHUP: Because... Right? Because women are grownups, and can do what they want, but also, they-

CHRIS HAYES: I mean, honestly, it makes more sense to say that it's illegal to have an abortion than it would make sense to say that you can have abortion, but you have to tell your husband. Honestly.

NANCY NORTHUP: Exactly.

CHRIS HAYES: Like, from a liberty perspective, it's like, if you say the procedure is illegal for whatever reason, but if you say you could have the procedure, it just cannot be the case that the law compels you to tell your husband a thing.

NANCY NORTHUP: Exactly. If you were changing churches or religions, you wouldn't have to tell your spouse.

CHRIS HAYES: I mean, that's just... Yeah.

NANCY NORTHUP: So that, they struck down, and it's important to remember that when the Planned Parenthood v. Casey case was in the Court of Appeals at the Third Circuit, then-Judge Alito was on that court, and he would have upheld as constitutional the requirement that women tell their husbands.

CHRIS HAYES: Right. And that's the person who's now on the Supreme Court.

NANCY NORTHUP: And that is one of the Justices now on the Supreme Court.

CHRIS HAYES: Who replaced Sandra Day O'Connor.

NANCY NORTHUP: Who replaced Sandra Day O'Connor.

CHRIS HAYES: Who cobbled together the opinion that saved Roe.

NANCY NORTHUP: Exactly, exactly, and so, you know, now with Justice Kennedy having stepped down, we have four Justices who are hostile to it, either have clearly been so on the record or every indication is that they are, and four Justices who would uphold it, and who were part of the majority in the last abortion case in the Supreme Court, Whole Woman's Health v. Hellerstedt.

CHRIS HAYES: So, what's the reaction after Casey on ... I mean, you can only sort of speak to one side from a first-person perspective, but what's the reaction on your side, folks that believe in and want to uphold abortion rights, and those who are opposed to them?

NANCY NORTHUP: Well, when the case came down, and it had been argued by Kitty Kolbert, who is one of the founders of the Center for Reproductive Rights, the reaction from the Center for Reproductive Rights was both kind of champagne and shivers. And the champagne, of course, was that Roe had been saved, core parts of it had been reaffirmed. But shivers, because this undue burden standard seemed a little mushy, right? Seemed a little unclear, because they had just upheld 24-hour waiting periods, and language about how it was important to be able to take in consideration the state's interest in fetal life throughout the pregnancy, but ultimately, the decision was for the woman. So the shivers were about what was to come next, and of course, what came next was another 25 years, almost, of more litigation and more restrictions. The fear was that it would open the floodgates to people trying to test what's an undue burden.

CHRIS HAYES: Right.

NANCY NORTHUP: And those floodgates indeed opened, and so there has been ongoing battle in the courts ever since, and really culminating... I mean, when the Whole Woman's Health case went to the Supreme Court two years ago, if Texas's laws, which were unjustified regulations on the abortion clinics in that state requiring they be admitting hospitals, requiring the doctors had admitting privileges, 75% of the clinics in Texas would have closed. And if that was upheld by the Supreme Court, then Roe would have no teeth whatsoever.

And of course, that's the fear and the legitimate concern about what the next case could be, because you can either reverse it in a dramatic way, which those like Justice Thomas would do... He's been clear, he's on the record, Roe is wrong and should be reversed. Or you can basically say anything goes, in which case, across the nation, clinics will close. Because we're fighting right now, there are dozens, dozens of cases in the lower courts right now, even with this strong standard that we have under Whole Woman's Health that says that the state can't just make up bogus reasons and put burdens on women just because they want them to jump through hoops.

CHRIS HAYES: I want to stop there, because I want to go back to the period between Casey and Whole Woman's Health, in that testing period that works its way up to Whole Woman's Health, because it's one of the weird features to me of this debate. It always seems shot through with a lot of bad faith, and I think that in some ways, the undue burden sort of precipitates that, which is, you end up with these laws that say, "Well, the width of a clinic hallways have to be so wide," right?

NANCY NORTHUP: Mm-hmm (affirmative).

CHRIS HAYES: And then people with a straight face go in to argue in court, and be like, "No, no, we're not trying to stop people from getting abortions, we just ... We are real believers in hallway width." And it's like, well, what are we doing here? I mean, in fact, in the oral arguments in Whole Woman's Health, which is, I think, if I'm not mistaken, I think hallway width... Am I right? Something like that in one of these restrictions. Elena Kagan is like, "Buddy, I know what you're ... Like, I see you, I understand the goal here." But instead, you get this crazy thing where all these restrictions have to sort of putatively be for other reasons, even though we all know what's at issue. Am I wrong about that? Like, that's the way it always seems to me.

Pro-choice and anti-abortion protesters demonstrate in front of the U.S. Supreme Court on July 9, 2018 in Washington. Tasos Katopodis / Getty Images

NANCY NORTHUP: Well, and it's also what's incredibly frustrating when you're litigating these, because it's as if you're in this Alice Through the Looking Glass. We made clear that we thought it was pretextual, and I think the Supreme Court's decision, although they don't use the word "pretext," makes pretty clear that they saw it as pretextual. Texas had no reason for... Abortion is one of the safest medical procedures a person can have. First-trimester abortions take a few minutes, they're outpatient procedures, they're extremely safe. The Supreme Court says that in the Whole Woman's Health decision. We had all the major medical organizations on our side, the American Medical Association, the Association of Obstetricians and Gynecologists. And you take this most safe procedure, and you say it has to be done in a hospital-like setting. Well, and obviously, that is done because they know that if every doctor's office essentially has to become a hospital, they're going to have to close.

CHRIS HAYES: Right.

NANCY NORTHUP: So it's this Alice in Wonderland world where they keep saying, "No, no, no, we're just trying to have women have safer abortions."

CHRIS HAYES: Right.

NANCY NORTHUP: Right? Which just isn't true. And thank goodness that the Supreme Court saw through that in the Whole Woman's Health case, and as Justice Ginsburg, I think, made a comment afterwards that it obviously was a sham. And you see that everywhere. It's like the crisis pregnancy centers. Look, if you want to put out a sign and say, "We don't agree with abortion. Are you pregnant? Come in and talk to us before you have an abortion," that's fine. But instead, you know, they use names that make it sound like they're an abortion clinic, they wear white robes or white doctor's outfits, and they don't let them know what their motivation is.

And I think that it would be much better... And this is, actually, it gets down to, if we think about the upcoming hearings on Kavanaugh's nomination: "Answer the question, Judge Kavanaugh, which opinion would you have joined in Planned Parenthood v. Casey? Would you have agreed with Justice Kennedy? Do you agree with Justice Thomas, Roe was wrongly decided? Would you have gone with those that would have struck down all the restrictions?"

CHRIS HAYES: Right.

NANCY NORTHUP: I mean, there were some wonderful opinions that weren't the majority in Planned Parenthood v. Casey by Blackmun, and by Stevens, and by others that were very strong. “So which opinion are you with?" And he can say what it is, and then the senators can vote as they will. But this notion that all of this has to be clouded in obfuscation, when it's something so important…

CHRIS HAYES: But this is... Okay, this drives me crazy about this... I mean, you're putting your finger on it, right? Because one of the things I'm seeing now is, like, all of a sudden, no one wants to talk about Roe, right? It's like, there's an entire movement in American life, and I want to just be like... My grandparents marched in the March for Life every year, I was raised in the Catholic Church; there are lots of people that I know, that I love, and that I respect who genuinely, and I think in good faith earnestly believe abortion's evil. They want to see it banned. That's not my view at all, strongly not my view, but there are people that have that view.

And those people are very mobilized, they're very activated, they're very organized, they spend a lot of time and energy pursuing that objective. There's a lot of people that share those views, and there are a lot of people they've made... They've called politicians to account, to be accountable to that view. And yet here we are, on the precipice of that maybe being reality, right, of Roe being overturned, or substantially gutted, and all of a sudden, everyone wants to pretend like it's not going to happen. And it just drives me nuts. Like, what are we... We know what we're fighting about: We're fighting about abortion. We've been fighting about abortion for decades, and there's a bunch of people in this country who want to see us not have legalized abortion, who are the empowered political coalition, who are now going to try to make that happen. Why are we pretending otherwise?

NANCY NORTHUP: Well, exactly, and for those who say, "Well, you know, Kavanaugh's just going to go through, that's who got elected to the Senate, that's who got elected to the presidency," let him be voted on with his record being clear. And that is where, post the Judge Bork nomination, which failed, but it failed for good reason, because he was way outside of the mainstream, and he didn't even believe that the Constitution protected a right of married couples to use contraception. And that's not who Americans want on the Supreme Court, and here, if Judge Kavanaugh were to reveal his judicial philosophy, which I think is pretty much akin to those who want to reverse Roe v. Wade, we have to assume he meets the President's litmus test. Let him say that. The senators can still vote how they want, but the reality is, it needs to be on the record for the American people.

CHRIS HAYES: But he's not. I mean, he's not going to say that.

NANCY NORTHUP: He's a very good lawyer, he's going to be very careful about what he says but what's important is for the senators then, I think it should be very clear because again, with Judge Kavanaugh, we have somebody who actually has already decided a case involving abortion and that is the case, the Garza case, which he was on last October of 2017 and this involved a 17 year old from Central America who had entered the country, is claiming an ability to stay here, discovered she was pregnant and wanted to have an abortion. She went through all the process in Texas that you have to if you're a minor, established to a court in Texas that she was competent to make the decision.

Our government was holding her and not letting her get released to have the abortion. The government wasn't going to have to pay for it. They were going to have to transport her. Her guardian at Lyden was going to take care of those things, and it goes up to the DC circuit because the US is fighting this young woman's ability to get an abortion and Judge Kavanaugh ruled that the government should still be given more time to be able to delay it further than it was and that got overruled by the whole en banc panel by the entire DC circuit and he descent it and completely claimed that they weren't following the court's precedence on access to abortion but in fact, he was the one that was finding that it was not an undue burden.

This woman had already waited weeks, and weeks despite having gotten the approval from a Texas court. Weeks, and he found that delaying her further so that somehow the government could release her into the custody of someone's who's going to be her sponsor that she had to wait for all that, as if waiting didn't matter when you're pregnant and seeking an abortion, but also that we should still try to change her mind. He talks on the opinion about she's not surrounded by people who can support her and so forth. She has already established to a judge that she's able to make the decision and he's somehow backing the government's attempt to delay it further, presumably so that others can persuade her.

He's already on record as not getting it at the very least and certainly not following the Supreme Court's undue burden test. There's actually a great concurring opinion by Judge Millet in the case, where she takes Judge Kavanaugh on, on this issue saying that he actually goes out of his way to make arguments that the government didn't make about why she should be released.

CHRIS HAYES: Yeah. That opinion, his opinion in the Garza case, it reads to me like an audition for the Supreme Court nomination because it's got language like “abortion on demand.” It's got all these sort of like rhetorical, I'm not saying this in like a derogatory way, I'm just saying like sort of analytical matter like the rhetoric of different sides of this debate. Like there's certain terms that indicate which side you're on if that makes sense. Like people opposed to abortion don't talk about choice, it's not in that vocabulary and people that support abortion rights, don't talk about “abortion on demand” because that's a rhetorical trope of people opposed to abortion. He talks about “abortion on demand,” which I thought was interesting.

NANCY NORTHUP: Absolutely, it shows exactly how he sees it. I mean it's the same thing with the speech that Judge Kavanaugh gave at the American Enterprise Institute again last September of 2017 and he talks about Justice Renquist, one of the two dissenters in Roe versus Wade as Justice Kavanaugh's first judicial hero. Then when he goes through talking about Justice Renquist's decision in Roe and his decision dissenting in Roe, dissenting in Planned Parenthood versus Casey, Justice Kavanaugh uses words like you're saying that are tells about where he is on this. He calls this zone of personal liberty "free-wheeling judicial creation” of unnumerated rights.

Again, he's I'm sure at the hearing, he's going to say, "I was just describing Justice Renquist's jurisprudence. I wasn't agreeing with it," but you look at his opening that he's a judicial hero to him, Renquist and using that word, “free-wheeling judicial creation” reveals that he doesn't believe that these rights are legitimate and that is incredibly dangerous.

CHRIS HAYES: There's two ways that this could go, right? One is that Roe v. Wade gets overturned. Finding that Roe gets overturned, the finding in Casey, the holding in Casey is overturned and you know, states are allowed to make abortion illegal, flatly, right? The other is the fear about the kind of upholding restrictions that essentially make it impossible and some kind of approach to it similar to the Roberts court has done with say the Voting Rights Act and the way in which the Department of Justice used to have sort of pre-clearance for certain states and places that said had a racial discrimination to say, "These districts are cool with us." The court basically got rid of that without admitting they were getting rid of it. I guess my question to you is, what do you think is more likely, a sort of facial overturning of the holding of Casey and Roe or something like a kind of slow process by which the core access to abortion and abortion rights get kind of whittled away?

NANCY NORTHUP: I'm pausing for a second because it's hard to know exactly the mind. I mean I think I'm confident that the President has delivered on his promise in appointing Kavanaugh but whether Kavanaugh is going to be frank like Justice Thomas once he got on the court, of course his hearing, he said he thought about Roe v. Wade.

CHRIS HAYES: Of course. I mean what, you know ...

NANCY NORTHUP: A year later, there we are.

CHRIS HAYES: ... No one in the law has thought about Roe v. Wade. It just never comes up.

NANCY NORTHUP: Exactly. It depends probably on what the type of case is. On the one hand for the anti-choice movement who has worked so hard for so long to push these hundreds of 400 anti-choice laws since 2011, not to mention the many before that, to have gotten this promise from a president running who actually lists judges and says, "My judges are all going to overturn Roe v. Wade."

CHRIS HAYES: Unprecedented we should say. Like very clearly promises that there's a test for all his justices, who he also in an unprecedented fashion puts a list out of, says basically, "Look, I vouch for the fact that they are opposed to Roe v. Wade."

NANCY NORTHUP: Exactly, and so I'm thinking all of a sudden the test case goes up and they don't deliver it. That's almost hard to believe. On the other hand, it might be a case in which they can do a substantial gutting that satisfies the base that didn't require a sort of overturning so the problem is either will it be equally devastating and hopefully, and we work hard to make sure the public understands the case, hopefully, they will recognize a gutting the same way the public has recognized that Citizens United has gutted campaign finance reform without overturning Buckley v. Valeo. It has gutted it.

We have an analysis out, we started doing it during the Bush administration called "What if Roe Fell?" Because at the time, so many commentators were saying, "Well, you know, that'll be fine. We'll send it back to the states, that's just great." These were people who said they were pro-choice that thought that would be great. We were like, "No, you got to get real here, because there are women living in these states," and we looked at what states have protection, what states would automatically criminalize abortion and 22 states are probably going to recriminalize abortion if Roe is overturned or if they're given the opportunity because it's gutted so much they can just regulate it out.

CHRIS HAYES: What do you say to people that say, people mostly I think in this sort of anti-abortion camp make this argument but I've seen others who aren't sort of strenuously anti-abortion make it that, our abortion politics are so sort of contentious because we've taken it out of democratic control because we put it as a constitutional-protected right and if you look at a place like Ireland, which is really interesting right, with a long culture of Irish culture, banned for a long time, just had a national referendum, a sort of resounding and amazing victory for abortion rights there where they won by a huge margin that like if you put it back in democratic control, that would make a healthier, better politics about abortion and maybe better for abortion rights in the long run. What do you think of that?

NANCY NORTHUP: I'm so glad you brought up Ireland. The Center for Reproductive Rights brought two cases against Ireland to the UN Human Rights Committee on behalf of two women who had fetuses that were impaired and they had to travel outside of Ireland to have an abortion. The UN Human Rights Committee told Ireland, "Your law is in violation of the International Covenant on Civil and Political Rights, and you need to reconsider it," and that along with all of the activism that happened for years but it was an immediate catalyst to the Parliament reconsidering their law.

As with all of this, it's not just like all of a sudden the Parliament in Ireland said, "Hey, let's take a look at our blanket ban on abortion," they got two negative rulings from the UN Human Rights Committee saying, "You're violating these women's rights and it's cruel, inhumane and degrading treatment." This notion that somehow… that standards that, be they human rights standards or constitutional standards, that those are an unimportant part of the debate, we'll just let the people figure it out I think is misplaced and it's also historically inaccurate and you can look at the work of Rita Siegel at Yale has done that Roe did not cause the backlash against abortion. It was brewing before Roe and it continued after Roe and decisions, political decisions that were made about how to win elections were part of it.

I disagree wholeheartedly with the notion that protecting constitutional rights, we're still fighting about voting rights, right?

CHRIS HAYES: Right.

NANCY NORTHUP: 50 years later because we're still fighting in America about racial equality.

CHRIS HAYES: Right.

NANCY NORTHUP: Not because it was decided by a court, but because we're still fighting about it.

CHRIS HAYES: I totally, I get that and I get that like the whole point of protecting constitutional rights people have so that you don't put them up for majority of vote because the right is protected, that's the whole point, I get that. Look, the US has no mechanism for a national referendum, like we don't have it, that doesn't exist in our system but it also seems to me that if there was a national referendum on the legalization of abortion, the legalization side would win, don't you agree?

NANCY NORTHUP: Absolutely. I mean isn't there a new NBC/Wall Street Journal poll out that says 71% of Americans don't want to see Roe v. Wade overturned, which is another reason why there should be a transparent hearing before the senate judiciary or the senators should assume that question's not answered on Roe v. Wade by a judge put up by a president who says there's a litness test is hostile to Roe v. Wade.

CHRIS HAYES: I want to end with a historical parallel I thought about and see what you think of it. The temperance movement in America has a lot of similarities to the anti-abortion movement. It's a movement that is very religiously inflected, particularly among Christians that religious inflection and zeal is part of what gives the movement it's sort of power, it's organized often through churches and through religious organizations. It's a movement, the temperance movement in America that lasted a very long time before it had success. I mean it just keeps going, keeps going. It starts I think even before the Civil War but really sort of picks up steam in the sort of post Civil War period in the latter half of the 19th century and basically doesn't stop until it wins… at which point the victory itself is catastrophic.

It is the only time in the country's history that the country managed to pass a constitutional amendment and be like, "Wow, that was a mistake," and then pass another constitutional amendment to undo it. There's part of me that wonders if that is what the trajectory of abortion is. There's a sort of implacability to the movement against abortion rights and it does feel like they're making a lot of headway and I guess I wonder like what arrests it short of a kind of catastrophic victory if that makes sense.

NANCY NORTHUP: I think that first of all, it could play out the way that you're thinking, which is that they get a catastrophic victory and then you know what, we maybe finally get the Equal Rights amendment.

CHRIS HAYES: Right.

NANCY NORTHUP: That could be the end of the story, right?

CHRIS HAYES: No, I think that's a, I genuinely, I mean that sounds all sort of like crazily dramatic and cataclysmic but there is part of me that thinks that's a non-trivial possibility if some sort of thing like that happens. Not inevitable in any way.

NANCY NORTHUP: Right, but absolutely, if there is that kind of reversal, I think talking about reviving the Equal Rights amendment is going to be real because women in this country are not going to go back and the fact that we didn't get the Equal Rights amendment in the 1980s is hugely problematic because apparently the legal equality is not still fully won and it may have the energy to finally get that through. The other thing I guess that might as you said, what could ever change it? I mean one of the problems in this area is that because there has been such a relentless campaign, not just of policy debate but harassment, intimidation, even murder at the extreme, violence.

One in four women in this country who have an abortion, the 70% who support abortion rights are bullied into silence. Like when we work on cases where we've had women who have had abortions that join Amicus briefs. For example, often say to me, "Is my family going to be in danger if I speak out as someone who's had an abortion?" That's quite stunning, right, and so so many people are silenced by this. I think the other thing that could turn it around is if everyone, there are so many women in this country who have had abortions, so many people who have supported who've made those decisions, been part of those decisions, you know as couples. Seven in 10 people want to see Roe v. Wade, we just have to actually be vocal and I don't mean screaming in the streets, I mean you can just let people know where you stand and right now, there's a secret world out there of women who actually know what this experience is, whose voices are not brought into the debate because they are bullied and shamed and stigmatized into silence.

Being able to change that I think to have every say, "Actually we all agree that we think it's right that Roe v. Wade is the land. That women have access to safe and legal abortion." If business leaders said, "Oh yeah, you know what, we agree with this too. We're not going to be scared by the bullying tactics of the anti-choice movement." It would be as if a veil was lifted and the vast majority of the public that support this, the many women who've had this experience are able to actually speak for themselves.

CHRIS HAYES: Nancy Northup is the President and CEO of The Center for Reproductive Rights. She's been litigating abortion rights for years and it's a real great pleasure to have you on.

NANCY NORTHUP: Well, thank you for doing so.

CHRIS HAYES: I want to thank again Nancy Northup for coming on the program. I learned a ton. I keep thinking about that, those early cases. I went home after the conversation, talked to my wife about the early cases about teaching German and parochial schools, which are in law school, like fairly famous cases I had never heard about but totally blew my mind. I hope parts of it blew your mind, parts of it you didn't know about. If you have thoughts that you would like to share, you can of course always share them on Twitter. You can use #withpod, that's W-I-T-H-P-O-D. Tweet at me, I'm @ChrisLHayes, you can tweet at me or just use the hashtag about what you thought about the episode. You can also talk about who you'd like to see, topics you'd like to see explored. If you're not a Twitter person, you could use email. We have a dedicated email address withpod@gmail.com. Again, that's W-I-T-H-P-O-D @gmail.com. We'd love to hear your thoughts.

"Why Is This Happening" is presented by MSNBC and NBC News, produced by the All In team and music by Eddie Cooper. You can see more of our work from "Why Is This Happening" by going to NBCNews.com/whyisthishappening.