Morning Wire - The Fall of Roe | 5.8.22

Episode Date: May 8, 2022

In this episode of Morning Wire, Culture Reporter Megan Basham reports on the leaked 98 page draft opinion, what it means for abortion in American, and the legal arguments on both sides of the decision. Get the facts first on Morning Wire. Learn more about your ad choices. Visit podcastchoices.com/adchoices

On Monday, Politico published a draft of the Supreme Court's upcoming opinion on an abortion rights case that will overturn Roe v. Wade. According to that leaked draft, the U.S. is looking at a new legal landscape for abortion. If the rulings of the justices hold, for the first time in 50 years, Roe v. Wade, the case that enshrined abortion as a right, will not be the law of the land. In this episode of Morning Wire, Culture Reporter Megan Basham reports on the leaked 98-page draft opinion, what it means for abortion in America and the legal arguments on both sides of the decision. It's May 8th, happy Mother's Day, and this is your Sunday edition of Morning Wire.

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Meanwhile, Democrats and Republicans are rushing to use the issue to their advantage in the November election. I believe that a women's reproductive freedom is sacred, and I believe that it's settled case law, and we can never go backwards on that regard. If I'm in the United States Senate, I would immediately support the first campaign to support the elimination of the filibuster. In this special episode of Morning Wire, Megan Basham joins us to discuss the political response to the leak and unpack the merits of the court's decision. Megan, thanks for being here. Yeah, my pleasure.

Now, to set the table for this discussion, it seems important to address the fact that this became known through a leak that's completely unprecedented. It is, and just to put that in perspective, the nonpartisan and very influential legal publication, SCOTUS blog, called this leak the gravest, most unforgivable sin

and said that it will destroy trust among the justices and their staff. Yet, even on that point, the left and right are divided, with some liberals arguing that the leak is actually a positive development. So Politico, for instance, has an opinion essay out right now from their media expert that's titled, It's About Time Someone Punctured the Supreme Court's Veil of Secrecy. And it argues that the leaker, and I'm quoting here, did the nation a service by ignoring the magic fairy dust that envelops the court to take an overdue look at the court's decision-making

process. Now, along those same lines, a New York Magazine article says, and this is the actual title, the leak is good, actually. So that essay contends that the leaker has done a public service by damaging the court's mystical aura of legitimacy at precisely the moment when it deserves to be damaged. So you have to say, it's pretty fascinating how similar the wording of those two pro-leak essays are by two different major publications. Right. And then on Wednesday, White House press secretary, Jen Saki, refused to condemn the leak when a reporter explicitly asked if the White House would do so. I don't think we have a particular view on that other than to say that we certainly note the unprecedented nature of it.

And then you have Democrats like Obama's Solicitor General Neil Katyal comparing this leak to the Pentagon papers. Now, that was a leak Department of Defense report that ultimately swayed the public's opinion against the Vietnam War, and the leak in that case is now generally viewed as a heroic act. Now, conservatives on the other side are pretty much uniformly viewing this as incredibly damaging to the integrity of the court. So here's what constitutional law professor and Kato Institute scholar Josh Blackman told us about that. The court depends on trust. That is, when a draft opinion circulated, the justice have to be able to trust their staff that it will not be revealed to the public.

And I think that trust has now breached. Now every time you have a dispute on the court, people think that could be leaked to the public. I don't know how you come back from this breach of trust. It's very, very damaging for both this term and the future. And that's something that Sarah Perry, senior legal fellow at the Heritage Foundation, echoed. It has significantly tainted the court's integrity and would have given the court, in fact, what Sonia Sotomayor argued during oral arguments, the stench of a political decision, launching this kind of a leak at this proximity toward the end of

the term, but within still enough time for those who are pro-abortion advocates to make determinations on how to message and how to legislate at the federal and state level, particularly with one of the justices retiring at the end of this term, it is truly unprecedented. So it seems like how you ultimately view the leak is closely tied to how you've view row. Yeah, to a large degree, that seems to be true. Now, that said, I wouldn't necessarily say it's the case that every legal scholar who leans left takes that view. Loyola constitutional law professor Jessica Levinson is pro-choice, but she told me this about the leak. It's really a breaking down of the Supreme Court norms, and I think it's a shame. I think that the Supreme Court

should be a place that is different from other political bodies. I think federal judges are given lifetime appointments for a reason. We want them to be out of politics. We don't want them to be susceptible to political pressure. And this leak, I think, really betrays the trust of what the justices have understood and what we've all understood. But I think it's a horrible betrayal of how the Supreme Court has already and always function to have this leak. Now, as to what the justices are thinking right now, we can draw from Chief Justice John Roberts, State. that called it a singular and egregious breach of trust that is an affront to the court. And we also spoke to Federalist Society legal fellow Aaron Hawley.

Now, she clerked for Roberts. So she has a deep insider perspective on just how SCOTUS is viewing this. Here's what she told us. So I think you can tell from the Chief Justice of Statement that this leak of a Supreme Court, a draft opinion before the court was ready to release it is something that horrifies him. He called it an egregious breach of trust and a betrayal of the confidences of the court. And those phrases are not phrases that he would use lightly. So I have no doubt that he is very disappointed that this leak occurred and will do what he can to get to the bottom of it.

What's been particularly interesting is the degree to which Roberts doesn't seem to be getting that much public support from the executive branch or from a significant portion of the legislative branch. As that Saki soundbite illustrated, the White House isn't willing to condemn the leak, and President Biden has not really addressed the matter of an investigation. Neither have high-profile Democrats like Chuck Schumer, Nancy Pelosi, or Elizabeth Warren. What you're really hearing from Democrats is this immediate pivot to what they can do to remedy this legislatively. They're reviving discussions of abolishing the filibuster so that they could codify row into law with a bare 51 vote majority in the state. Senate. So this was Senator Warren speaking to a crowd of supporters about just that on the steps of the court a couple of days ago. I say the time has come. We end the filibuster now. Of course, they still have West Virginia's Joe Manchin and Arizona's Kristen Cinema standing in their way on that. Both Democrat senators said this week that they will not vote to end the filibuster in order to codify row. Now, assuming that this draft largely represents the ruling that SCOTUS will ultimately hand down, how are legal experts reacting to the merits of the actual opinion? Well, you know, as with just

about everything on this topic, that depends to an enormous degree on how you view abortion and whether you see it as a matter of a woman's right to privacy or a child's right to life. So this was what Holly had to tell us about the reasoning of Justice Samuel Alito, who wrote that leaked draft. I think the draft is an excellent example of constitutional analysis, and it lays out a really compelling argument for overruling Roe. And as that draft explains, there's nothing in our nation's history, traditions, or the constitutional text that support a right to abortion. And because of that, Justice Alito says that Roe and Casey have profoundly damaged our democratic institutions because the court took an issue away from the people, and this decision overturning Roe, if the court sticks with it,

will return that issue to the states and allow people to be invested in that decision. Levenson, of course, felt differently about Alito's argument that the issue should return to the people. Think about equal protection. We don't want to leave that to the voters as to whether or not we'll respect equal protection. Think about other due process rights. We don't want to leave it to the voters as whether or not criminal defendants can obtain due process of the law. And I think the same thing goes for the right of reproductive choice. We don't want to leave this to a legislative matter as to whether or not women have the right to choose. So even as we're here today, sifting through all of the many moving parts on this, it's striking that even legal experts who are normally

very cautious with their predictions seem fairly confident that the judges will stand firm in this opinion. Yet they do seem like that. And I think the reason for that, as experts on both sides of the aisle, told Morning Wire, is because they think it's, one, very unlikely that the justices will allow any public pressure that might stem from this leak to sway their opinions. And two, they believe that, based on what's in the draft, it likely does represent the final outcome. So here's what Levinson told me about that. It's not a good idea for us to assume that any draft opinion is settled. I think this particular draft opinion probably is and is even more likely to be settled as a result of the leak. And I think that was part of the purpose. Again, I'm just speculating

here. I think part of the purpose of the leak was to make sure that there weren't any members of the five member majority who decided to maybe either cross the aisle or join Chief Justice John Roberts for a narrower opinion. So if you look at this draft, it is obviously extremely thorough. It looks close to complete. Does it mean that this is exactly what we're going to see when they come out with the decision? Of course not. And we need to be careful about it. But I would be very surprised if things changed substantially between this February draft and what we're going to see at the end of June. And that was the one thing and perhaps the only thing that Levinson, Holly, and really all of these legal experts that we spoke with, mostly agreed on. That said, I will hasten to add that it doesn't

necessarily mean that we know the outcome with certainty, but it is the general consensus across the political spectrum. Now, beyond Roe, the big question this draft brings up is how it's going to impact rulings on other landmark Scotus cases. What do we know about that? Yeah. And, you know, what I can tell you for sure is that once again, we're hearing a lot of different opinions. Because on the one hand, Alito makes it very clear that this ruling is only intended to apply to Roe and another case that enshrined abortion, Casey, not any other rulings. However, critics contend that it strikes at the heart of a right to privacy, the basis that other decisions like Obergefell v. Hodges, which established gay marriage rely on. Blackman believes

Alito's caution that the ruling is intended to have a limited scope is going to hold up because those other issues aren't as politically divisive. Well, look, Justice Alito's draft opinions He said, we're not touching anything else. We're just talking about abortion, right? It's like Bruno. We don't talk about gay marriage, right? I mean, you could say, well, we don't believe you. But I think there is a simpler answer here, right?

There's no march on Washington every year to rule gay marriage, right? There's no march on Washington to overrule contraception protections. There was a march in Washington for abortion, and the lead opinion recognized that he says that abortion is a unique right because it literally takes life of another. And gay marriage doesn't do that. Birth control doesn't do that. It stands alone among these sort of unenumerated rights as rights that inflict harm and others. Levenson, however, didn't agree with that.

I understand that the draft says this is just about abortion, but if we look at the reasoning behind overturning row, and if we're really honest about what the court's worried about, which is, I think, this idea of unenumerated rights, you know, things that are not specifically written into the Constitution, then, it feels to me that it's inescapable, that it calls into question the rest of this line of cases of the right to privacy. So think about how this began. We're looking at the 14th Amendment. We're looking at that word liberty.

And we're deciding what's protected under liberty. Again, really broad words in the Constitution because I think the founders and framers knew this is a document that's going to have to live for a long time. So we look at the word liberty, what's protected under it? We decide that there's something called the right to privacy, which protects, for instance, the ability of married couples to obtain contraception. Then the ability of unmarried couples to obtain contraception. It includes things like the right to marry the partner of your choosing.

Maybe they're from a different racial background than yours. Maybe they're from the same gender as you are. And so when we think about how we've built this line of cases, And we think about why we would overturn Roe. It seems to me that it calls the whole line into question. So I guess really the final question is how the American people are likely to react. This has been such a divisive issue for so long. And there's no doubt that candidates are going to heavily focus on this in the run-up to the midterm elections in November.

Now, will this decision, if it holds anger a majority of American people? Well, as you might expect, Democrats are insisting that there will be a groundswell of outrage. against what they're characterizing as a women's rights issue. They point to polling showing that a slim majority of Americans have said that they do not want the court to overturn Roe. Holly, however, did a good job voicing what most Republicans are saying about that claim. When you drill down on those numbers, a majority of Americans support restrictions on abortions at 15 weeks, which is where the Mississippi law that is issue in dogs comes into play. So what I I think when the pro-life movement takes up its call to explain to the American public that babies, as young as 15 weeks, can move and stretch.

They can smile. And when you explain this, especially with the benefits of 40 ultrasound, which were not available to mothers and fathers or to the court in 1973, then I think we get this picture of what abortion really is. So I guess the shorter answer is to say, I think public opinion is you have to drill down on the numbers. A lot of people say they're in favor of Roe, but they're not in favor of the regime that Roe allows, where you have on-demand abortion up until the moment of birth. What no one argues, though, is that we are definitely living through an historical moment. Absolutely. Megan, thanks so much for reporting. Thanks for having me.

DailyWire's Megan Basham, and this has been your Sunday episode of MorningWire. If you like this podcast, subscribe to our Morning Wire newsletter, available exclusively to DailyWire members. Get the MorningWire newsletter delivered straight to your inbox when you join at DailyWire.com slash subscribe. Use code MorningWire to try a Reader's Pass membership and get your first month for only 99 cents.