SUPREME BATTLE

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. 

TRANSCRIPT

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.

Funders

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