SUPREME BATTLE

July 12, 2019 at 5:00 am

Roe v. Wade and the future of a woman’s right to choose may soon be on the SCOTUS docket. ABC Chief Legal Affairs Correspondent Dan Abrams will join us with analysis and next steps.

Aired on May 30 & July 11, 2019. 

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>> STATES BOTH RED AND BLUE ARE
TAKING UP AN ISSUE THAT'S
DIVIDED THE COUNTRY FOR DECADES,
ABORTION.
EARLIER THIS YEAR IN NEW YORK
STATE ENACTED STRONG NEW LEGAL
PROTECTIONS FOR ABORTION RIGHTS.
STATE LEADERS SAY THE MOVE WAS
NEEDED SHOULD THE SUPREME COURT
DECIDE TO OVERTURN ROE VERSUS
WADE, THE LANDMARK CASE THAT
ESTABLISHED FEDERAL PROTECTIONS
FOR THE PROCEDURE BACK IN 1973.
BUT IT'S A MUCH DIFFERENT STORY
IN MANY OTHER STATES INCLUDING
DOWN SOUTH WHERE STATES LIKE
ALABAMA RECENTLY PASSED
LEGISLATION EFFECTIVELY
OUTLAWING ABORTION ALL TOGETHER.
THE "NEW YORK TIMES" REPORTS
THAT THE NATIONAL RACE TO PASS
NEW LAWS STARTED LAST YEAR WHEN
PRESIDENT TRUMP MADE JUDGE BRETT
KAVANAGH HIS SUPREME COURT PICK.
SOME BELIEVE HE MAY WELL BE A
CRUCIAL FIFTH VOTE AS THIS FIGHT
PLAYS OUT.
FOR MORE WE'RE DELIGHTED TO HAVE
BACK WITH US DAN ABRAMS.
ABC CHIEF LEGAL AFFAIRS
CORRESPONDENT AND THE COAUTHOR
OF THE BOOK "THEODORE ROOSEVELT
FOR THE DEFENSE" THE COURTROOM
BAT TTLE TO SAFE HIS LEGACY.
LET'S TALK SOME CONSTITUTIONAL
AND POLITICAL BACKGROUND IF WE
CAN HERE.
IT'S OFTEN SAID THAT A
PRESIDENT, THEIR GREATEST LEGACY
MAY WELL BE THE SUPREME COURT.
WHAT'S MEANT BY THAT AND HOW IS
THAT PLAYED OUT FOR US IN THE
PAST?
>> THERE ARE A FEW AREAS THAT A
PRESIDENT HAS THE SOLE POWER TO
INFLUENCE SOMETHING AS MUCH AS
THE PICKS TO THE UNITED STATES
SUPREME COURT.
YES, THERE'S SENATE
CONFIRMATION, BUT IT IS REALLY
HIS CHOICE.
AND IT CAN FUNDAMENTALLY SHAPE
THE DIRECTION OF THE COUNTRY.
NOW, SO FAR WE HAVEN'T HAD ONE
OF THESE FUNDAMENTAL
GAME-CHANGING SUPREME COURT
APPOI
APPOINTMENTS.
THERE'S BEEN A SLOW EVOLUTION.
THE COURT IS MORE CONSERVATIVE
TODAY THAN IT WAS 25 YEARS AGO.
BUT STILL WE'RE WAITING FOR THAT
BIG SWITCH, WHICH IS
CONSERVATIVE APPOINTED IN PLACE
OF LIBERAL THAT FUNDAMENTALLY
CHANGES THE BALANCE OF THE
COURT.
AND THE COURT HAS NEVER BEEN SO
DIVIDED IN TERMS OF THESE 5-4
DECISIONS.
SO THOSE PICKS MATTER MORE THAN
EVER.
IN THE LAST TEN YEARS THE PICKS
HAVE BECOME EVEN MORE BECAUSE OF
THAT 5-4 DIVIDE.
>> AS WE KNOW, EVEN A
PRESIDENT'S SIGNATURE
LEGISLATIVE SUCCESS CAN BE OVER
TURNED.
>> YEP.
>> ALL OF A SUDDEN YOU HAVE A
NEW CONGRESS COME IN.
SUPREME COURT JUSTICES APPOINTED
FOR LIFE.
THEY'RE NOT GOING ANYWHERE.
>> IT'S TRUE.
WE TALK ABOUT FOREIGN POLICY,
THE PRESIDENT HAVING ENORMOUS
POWER.
IT'S TRUE.
BUT YOU'RE RIGHT, IT'S
TEMPORARY.
YOU CAN HAVE A LEGACY THAT LASTS
FOR 40 YEARS.
>> AS I MENTIONED, ROE VERSUS
WADE 1973 AND JUDICIAL NOMINEES
ARE OFTEN IF NOT ALWAYS ASKED
ABOUT THE NOTION OF LEGAL
PRECEDENT.
YOU AND I KNOW THE TERM IT
STANDS DECIDED.
AND I SUSPECT THAT SOME PEOPLE
MIGHT THINK, WELL, IF IT'S BEEN
DECIDED YOU CAN'T UN-DECIDE IT.
>> NO.
>> EXPLAIN THAT TO US.
>> THEY CAN DO WHATEVER THEY
WANT.
THE PRINCIPLE THAT IS APPLIED
HAS BEEN YOU HAVE RESPECT FOR
PREVIOUS DECISIONS.
AND THE REASON FOR THAT IS SO
THAT YOU DON'T HAVE THE SAME
SITUATION THAT YOU HAVE IN THE
POLITICAL WORLD WHERE YOU GET A
NEW PRESIDENT IN AND SUDDENLY
THE WORLD CHANGES.
THE POINT IS THAT WHEN IT COMES
TO SOMETHING LIKE THE COURT
WHERE YOU WANT A LEVEL OF
DEPENDABILITY, YOU WANT A LEVEL
OF CONSISTENCY AND YOU WANT
RESPECT FOR PREVIOUS DECISIONS
THAT HAVE BEEN MADE.
BUT THERE ARE CERTAIN JUSTICES
WHO ARE ON THE COURT RIGHT NOW
WHO HAVE BASICALLY SAID I'M NOT
REALLY THAT CONCERNED.
JUSTICE THOMAS BEING ONE OF
THEM.
WITH WHAT THE PRECEDENT IS.
IT SEEMS THAT JUSTICE GORSUCH IS
PROBABLY GOING TO BE PART OF
THAT BLOC AS WELL.
BUT I THINK THOSE WHO THINK ROE
VERSUS WADE IS GOING TO GET
OVERTURNED ARE MISTAKEN,
MEANING, THIS IS WHY THE ALABAMA
LAW, I THINK, IS PROBLEM FOR PRO
LIFE NOT PRO CHOICE.
>> A LOT OF PEOPLE MIGHT FIND
THAT UNUSUAL.
>> IT'S THE HARSHEST LAW IN THE
COUNTRY.
NO GAMES.
NO WE'RE DOING THIS TO PROTECT
THE MOTHER.
WE'RE DOING THIS ENSURE THEY
HAVE HOSPITALS.
THERE'S NO EFFORT TO WINK AND
NOD HERE.
THIS IS SAYING WE ARE BANNING
ABORTION, PERIOD.
TH
UP TO THIS POINT THERE'S ALWAYS
BEEN ARGUMENTS LIKE, WELL, COME
ON, CONSENT ON THE PART OF
PARENTS OR SHOULD THERE BE
CONSENT OF A HUSBAND OR MAKING
SURE NO ONE IS GETTING AN
ABORTION BASED ON THE RACE OR
SEX OR GENDER OF THE CHILD, ET
CETERA.
THERE IS ANOTHER SIDE TO ALL OF
THAT.
SO IT ALLOWS THOSE WHO OPPOSE
ABORTION TO SAY THAT WE ARE JUST
IMPOSING WHAT'S CALLED AN UNDUE
BURDEN.
>> THOSE MAGIC WORDS.
THE COURT CASE RECENTLY SAID
THERE CAN BE SOME RESTRICTIONS
AS LONG AS THEY DON'T CREATE AN
UNDUE BURDEN.
>> RIGHT.
THE QUESTION BECOMES WHAT DOES
THAT MEAN.
>> THAT'S WHY YOU CONTINUE TO
HAVE LITIGATION.
PEOPLE OFTEN SAY WHY ISN'T THIS
SETTLED AND THE ANSWER IS WHAT'S
AN UNDUE BURDEN.
>> ALABAMA IS NOT PRETENDING.
SO IT'S THE KIND OF CASE WHERE
EVEN PAT ROBERTSON SAYS, YOU
KNOW, THIS HAS GONE TOO FAR.
WHEN PAT ROBERTSON SAYS IT'S
GONE TOO FAR, THERE'S A REASON.
HE GETS IT.
HE KNOWS IT'S A POSSIBLE PROBLEM
FOR THEM.
SO THE MORE DANGEROUS CASES FOR
THE PRO CHOICE SIDE ARE THE ONES
THAT WILL JUST CHIP AWAY SLOWLY,
MAKE IT HARDER AND HARDER AND
HARDER FOR WOMEN THE GET
ABORTIONS IN PARTICULAR STATES.
>> YOU OFTEN HEAR PEOPLE
INVOLVED IN LITIGATION SAY,
OKAY, WE'RE TAKING OUR CASE TO
THE SUPREME COURT AS IF EVERY
C
CASE GETS TO GO TO THE SUPREME
COURT.
WHAT'S THE REALITY IN TERMS OF
HOW OFTEN CASES ACTUALLY GET TO
THE SUPREME COURT AND WHAT IS IT
THAT DRAWS THE JUSTICES'
ATTENTION TO MAKE THEM SAY,
OKAY, WE WANT THIS ONE.
>> THE VAST MAJORITY OF CASES
THE COURT WILL SAY WE'RE NOT
HEARING IT.
THAT MEANS THE LOWER COURT
OPINION IS EFFECTIVELY AFFIRMED.
>> THE NUMBER LAST YEAR MIGHT
HAVE BEEN AROUND 10,000
APPLICATIONS AND THEY HEARD 70
CASES.
>> THERE'S GOING TO BE A NUMBER
OF AT LEAST -- I SHOULDN'T SAY
NUMBER.
THERE'S GOING TO BE A BIG
ABORTION DECISION IN THE NEXT
COUPLE OF YEARS.
IT'S GOING TO HAVE TO HAPPEN.
WHICH OF THESE CASES IT'S GOING
TO BE, THERE ARE ALL SORTS OF
DIFFERENT STATE LAWS, DIFFERENT
RESTRICTIONS.
MY GUESS IS THEY'LL COMBINE THEM
TO SOME DEGREE AND MAYBE
IMPLEMENT A DIFFERENT STANDARD.
BUT PEOPLE SHOULD KNOW THAT
THERE WAS A LOUISIANA CASE
RECENTLY WHERE THE LOWER COURT
ACTUALLY RULED THAT A VERY TOUGH
LOUISIANA LAW WAS OKAY TO
IMPLEMENT.
SO TRIAL COURT SAID NO GO.
APPELLATE COURT SAID WE DON'T
THINK IT'S AN UNDUE BURDEN.
AND THE SUPREME COURT ISSUED A
STAY, MEANING, ENOUGH OF THE
JUSTICES BASICALLY SAID WE'RE
GOING TO HOLD OFF ON LETTING
THEM IMPLEMENT THIS LAW.
IT WAS ROBERTS AND THE FOUR
LIBERALS AND EVEN KBRETT KAVANAH
SAID WHILE HE WOULDN'T NOT HAVE
GRANTED THE STAY, HE WANTED TO
KNOW MORE ABOUT WHAT THE BURDEN
WOULD BE.
DO I THINK THAT KAVANAUGH IS
GOING TO BE A PRO CHOICE
JUSTICE?
ABSOLUTELY NOT.
BUT WHEN IT COMES TO OVERTURNING
ROE VERSUS WADE, I THINK YOU'RE
GOING TO HAVE ROBERTS AND I
THINK KAVANAUGH WOULD BE MORE
RELUCTANT THAN SOME PEOPLE THINK
TO PURELY OVERTURNING ROE VERSUS
WADE.
>> THE ALABAMA CASE.
>> YES.
OR ANY OF THESE CASES TO
BASICALLY SAY WE'RE GOING TO
IGNORE ROE VERSUS WADE FROM NOW
ON AND STATES CAN DO WHAT THEY
WANT.
>> WE ALWAYS LEARN A LOT MORE
WHEN WE CHAT WITH YOU ABOUT
THESE THINGS.
>> WE COULD TURN THIS AROUND AND
I COULD BE ASKING YOU AND YOU'D
KNOW IT BETTER.
>> YOU AND I HAVE DONE THAT
BEFORE.
PLEASURE AS ALWAYS.
AGAIN, I WANT TO MENTION GREAT
BOOK "THEODORE ROOSEVELT FOR THE
DEFENSE" THE COURTROOM BATTLE TO
SAVE HIS LEGACY.

Mutual of America PSEG

Funders

MetroFocus is made possible by James and Merryl Tisch, Sue and Edgar Wachenheim III, the Sylvia A. and Simon B. Poyta Programming Endowment to Fight Anti-Semitism, Bernard and Irene Schwartz, Rosalind P. Walter, Barbara Hope Zuckerberg, Jody and John Arnhold, the Cheryl and Philip Milstein Family, Janet Prindle Seidler, Judy and Josh Weston and the Dr. Robert C. and Tina Sohn Foundation.

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