Joshua Prager, 51, is one of the people who is most familiar with Roe v. Wade, the case that constitutionally enshrined the right to abortion in the United States in 1973. An investigative reporter specializing in characters who have been steamrollered by History, his book The Family Roe: An American Story caused a stir when it was published in September 2021, right around the time that Texas was passing its restrictive abortion legislation. The book, on which he worked for a decade, revealed the identity of Roe Baby, the daughter of Norma McCorvey, to whom the judge assigned the pseudonym Jane Roe during litigation for her right to an abortion, precisely, in… Texas.
The legal fight put up by McCorvey, who gave the baby up for adoption (today she is a woman named Shelley Lynn Thornton, as Prager discovered), reached the Supreme Court. This institution ruled in her favor in 1973 (seven to two) in what is usually defined as the most controversial decision in its history. But this honor could soon go to another decision currently at the draft stage in that same court involving Dobbs v. Women’s Health Organization. This case pits a Mississippi clinic against the state, which in 2018 enacted a law contrary to the spirit that Roe consecrated constitutionally. If the final decision confirms what a document leaked by Politico revealed this Monday, five conservative judges will overturn a half-century precedent and split the United States in two in terms of women’s reproductive rights.
Prager answered EL PAÍS’ questions from his home in New Jersey, one day after learning about a draft whose contents, he says, have not surprised him “at all.”
Question. Although many suspected that the Supreme Court would go that way, the leaked draft opinion has caused a real earthquake...
Answer. It was enough to look at the arguments of the oral hearing. There are seven justices who we knew in advance which way they would vote [three conservatives, three progressives, and Chief Justice John Roberts]. The two unknowns were [the two justices appointed by Donald Trump] Amy Coney Barrett and Brett Kavanaugh. Justice Kavanaugh basically spent the whole time talking about precedents that the court had previously overturned. And Justice Barrett spent much of her time talking about adoption as a viable alternative to abortion. So when you heard these two things over and over being said, it was pretty clear to my mind that at the very least they were going to cut Roe, but it looked to me like they were actually going to overturn Roe, although you never know, it still could change. It really could, drafts change.
Q. How could that happen?
A. It all comes down to whether or not Justice Roberts [a moderate conservative, who has voted in favor on issues such as immigration, LGBTQ+ rights, or abortion] is able to win one of those justices over to his side. And his cause is the following: above all he does not want a headline like the one we saw this week. He respects precedents. He cares deeply about the reputation of the court. In many ways, he is a lonely man now.
Q. Kavanaugh and Barrett were quite clear at their respective Senate hearings that they would respect precedent. Did they lie?
A. Is it actually lying? I don’t think so. It’s a game. They are just the confirmation hearings. It’s a ludicrous game, a charade. Justice Thomas said famously in his hearings that he had never discussed Roe. So is that a lie? Technically, yes. But it’s a game that they all play. And it was Roe v. Wade that made this game begin. It used to be that Senate confirmation hearings were a normal, honest, open process. But then in 1987, the would-be Justice Robert Bork got cut down. It was the Democrats that presented him as a radical. He was obviously very right-wing, but he was portrayed as a radical who, if he was appointed to the court, would turn the US into a dangerous hellscape where women would be going back to back-alley abortions. So it’s Roe’s fault. It’s always Roe that causes these issues. And of course, it’s Roe again that led now to a new, precedent-changing thing.
P. How do you imagine the United States after Roe?
A. Tragically, it will be the way it always is. The rich people will have access to abortions. The white people for the most part will have access to abortions, and poor women and women of color will struggle to have access to abortion. They will have to travel to other states to get an abortion. It is a tragedy. But it’s true. This is a country divided in many ways by class race. And this will just be another example of that.
Q. Is it also another demonstration of the wild polarization that the country is experiencing?
A. Abortion is the most polarizing issue in our entire country, even more than race. It simply is number one. And that’s very sad. It didn’t use to be this way. Didn’t have to be this way. But it is.
Q. Justice Ruth Bader Ginsburg, whose death opened the door to Trump’s third appointment in extremis, believed that the original sin of Roe v. Wade was that it was based on the right of privacy rather than equality. Do you agree?
A. A lot of people believe that and I am among them. But in fairness to Justice [Harry] Blackmun [one of the nine members of the Supreme Court at the time; he drafted the majority opinion], he later said that he did not have the votes to go along with it if they were to base it on inequality at the time. Maybe it’s not true. It was a seven-two ruling, but that is what he said.
Q. What could have been done better?
A. That’s a good question. If you read the opinion, if it had had more constitutional analysis in it, it would have been less vulnerable to attacks on it later on. There’s a lot been said that Roe was the reason that America became poisoned in this way. I think the ruling could have pointed out that even before Roe, the Republican Party was already beginning to politicize the issue. Some of President Nixon’s advisors were encouraging him to switch positions on abortion so that he could get votes.
Q. Speaking of getting votes… Would you say this leak benefits the Democrats politically?
A. We don’t yet know. If you look at the polling, the thing that is most upsetting to people is the economy. But it is absolutely true that this could benefit the Democrats in the midterm elections. Why? Because poll after poll after poll for 50 years has basically shown that Americans, even though their leaders change, and even though the two sides have become more extreme, they remain consistent. They believe that abortion ought to be legal roughly through the first trimester.
Q. If the Supreme Court overturns Roe, in some states such as Texas or Oklahoma the term will be reduced to six weeks, which is equivalent to prohibiting it...
A. Here’s the thing. Just like it was the passage of Roe that galvanized pro-life, so to the overturning of Roe would galvanize the pro-choice side.
Q. What do you think of the arguments set forth by Judge Samuel Alito, who wrote the draft opinion?
A. I’m not impressed by them. They’re very extreme. They’re not nuanced. They’re not fair. They’re one-sided. I know enough about this issue to be able to point to a lot of things that he says that are simply not true.
Q. For example?
A. He doesn’t acknowledge, for example, that for 700 years the Catholic Church differentiated between abortions pre- and post-quickening. It’s not a very fair-minded opinion. And that’s unfortunately not surprising.
Q. What about the argument that the Constitution does not mention abortion?
A. That’s 100% true, but there’s lots of issues that are not mentioned in the Constitution. A lot of things are not mentioned, and we still need to have laws. It’s hypocritical.
Q. Does the Supreme represent the United States of 2022?
A. I think that the Supreme Court represents unfortunately a lot of the leaders in the abortion movement over the last 50 years. Little by little abortion has become more absolutist and more politicized and more extreme. And this is a group of people who are saying that what’s motivating them is simply the fact that they felt that Roe was not a good opinion, that it was not good constitutional analysis, and they’re right. Everyone on both sides knows that it was not a brilliant opinion, but it’s bullshit to pretend that this is only about the interpretation of the Constitution. There’s a paragraph towards the end [of the draft opinion] that says ‘we don’t know how people will react but basically that’s not our job.’ Give me a break. It is your job!