Speaker 1: This is Bloomberg Law, with June Bresso from Bloomberg Radio A.
Speaker 1: Abortion rights have been guaranteed in the United States for
Speaker 1: nearly fifty years under the landmark ruling of Roe v. Wade,
Speaker 1: but now, in the most consequential reproductive rights case in
Speaker 1: a generation, it appears the Supreme Court is ready to
Speaker 1: roll back abortion rights or perhaps eliminate the constitutional right
Speaker 1: to abortion altogether. During oral arguments this week, all six
Speaker 1: conservative justices indicated they would uphold Mississippi's ban on abortion
Speaker 1: after fifteen weeks of pregnancy, although the justices appeared to
Speaker 1: be divided on just how far they would go here
Speaker 1: at Chief Justice John Roberts and Justices Samuel Alito and
Speaker 1: Brett Kavanaugh. If it really is an issue about choice,
Speaker 1: why is fifteen weeks not enough time? The fetus has
Speaker 1: an interest in having a life, and that doesn't change,
Speaker 1: is it from the point before viability to the point
Speaker 1: after viability? Why should this court be the arbiter rather
Speaker 1: than Congress, the state legislatures, state supreme courts, the people
Speaker 1: being able to resolve this. And there'll be different answers
Speaker 1: in Mississippi and New York. Justice Sonia So to Mayor
Speaker 1: and the two other liberal justices said that a decision
Speaker 1: gutting the courts precedent on abortion would undermine the courts legitimacy.
Speaker 1: Will this institution survive the stench that this creates in
Speaker 1: the public perception that the Constitution and it's reading are
Speaker 1: just political acts. I don't see how it is possible.
Speaker 1: Joining me is Mary Ziegler, a professor at Florida State
Speaker 1: University College of Law who specialized is in the legal
Speaker 1: history of reproductive rights. Mary, what was your take on
Speaker 1: the arguments? The overall impression I got, obviously is that
Speaker 1: Mississippi is going to win, and I think it's much
Speaker 1: more likely that the Court has been over to and
Speaker 1: Row outright this summer. You know, with the usual caveats
Speaker 1: that things can change between argument and decision. What was
Speaker 1: the main question? Was it the viability standard, the presidential
Speaker 1: value of row? Definitely more of the latter than the former,
Speaker 1: for sure. I mean there was a lot of time
Speaker 1: spent on the presidential value of row and whether the
Speaker 1: Constitution is silent or a sprick have enough put it
Speaker 1: scrupulously neutral about abortion? Right? There was much less time
Speaker 1: spent on viability. Although Chief Justice John Roberts certainly focused
Speaker 1: on viability, and Amy Coby Barrett at some point showed
Speaker 1: some interest in that line of questioning as well, but
Speaker 1: the majority of the questions focused on whether Row was
Speaker 1: the kind of precedent that deserve respect. The Chief Justice
Speaker 1: is an incrementalist. He likes to change law a little
Speaker 1: by little. Was he looking for a middle ground that
Speaker 1: none of the conservatives took him up on. I think
Speaker 1: that's a stereo reading of it, although I think the
Speaker 1: only person who consider taking him up on it is
Speaker 1: Justice Sparret. I think she's probably going to be, at
Speaker 1: least based on the argument, the person whose vote is
Speaker 1: the most upper grabs in the case. But I mean,
Speaker 1: obviously getting rid of viability would be a major change
Speaker 1: to abortion doctrine. So while I think it's right to
Speaker 1: frame Roberts as an incrementalist in frame data searched forminal
Speaker 1: ground solution, I think it's also worth qualifying that, you know,
Speaker 1: this is not usually what passes for a compromise, but
Speaker 1: I think that's what he was trying to do, and
Speaker 1: I think that with maybe the exception of Justice Sparret,
Speaker 1: there were no takers. Was the only question for conservatives
Speaker 1: whether to overrule Row entirely or whether to stop at
Speaker 1: fifteen weeks in the Mississippi law. Was there any inkling
Speaker 1: of support for maintaining the current rule and precedent. No,
Speaker 1: I mean not really. I don't think that any of
Speaker 1: the conservatives seem interested in that. How did we come
Speaker 1: this far this fast? It's just a few years ago.
Speaker 1: It seemed like Rowe was on pretty solid ground. Yes,
Speaker 1: obviously quite sudden. I mean, I think Justice Soto Mayor,
Speaker 1: although people who are anti abortion or prollected like the
Speaker 1: tone of her question, had a point in saying, you know,
Speaker 1: legislators have been saying, essentially, we can do whatever we
Speaker 1: want when it comes to worship because we have the votes.
Speaker 1: And it does seem to have changed quite rapidly that
Speaker 1: we've gone from June medical not even two years ago,
Speaker 1: to an oral argument where the court seems ready to
Speaker 1: throw out the whole kitten to rudle. So I think
Speaker 1: there's no other way to explain it other than the
Speaker 1: courts membership changing. Nothing else has been that transformative in
Speaker 1: the time between June of and the winter. Did it
Speaker 1: seem as if there were three camps Justices Clarence Thomas
Speaker 1: Samuel Alto and Neil Gorst you are ready to overturn Row.
Speaker 1: And on the other side you have the liberal justices
Speaker 1: Stephen Bryer Elina Kagan who want to preserve row obvious sleep.
Speaker 1: And then this other group of Chief Justice John Roberts,
Speaker 1: Brett Kavanaugh, and Amy Coney Barrett, where I'm not sure
Speaker 1: where they were. Does the decision depend on those three? Absolutely? Yeah,
Speaker 1: I mean based on the argument, I'm not sure I
Speaker 1: would lay out the configuration that way that was the
Speaker 1: configuration going in. It's just based on the argument. If
Speaker 1: you knew nothing else with the argument, you would say
Speaker 1: that there were four justices ready to overall Row right now,
Speaker 1: and you would include Brett Kavanaugh alongside Clarence Thomas, Samuel Alito,
Speaker 1: and ther Corsage and put John Roberts and Amy Coney
Speaker 1: Barrett in the middle, with Barrett I think leaning more
Speaker 1: towards the Kavanaugh at all camps and Robert certainly sort
Speaker 1: of standing on his own in this kind of viability
Speaker 1: strategy that he laid out. But I think the votes
Speaker 1: were watching probably most closely, will be just the Sparret's vote.
Speaker 1: Justice Kavanaugh, of course was more and up for grabs vote.
Speaker 1: We all thought that, and so we may, of course
Speaker 1: don't want to read too much into what he said
Speaker 1: at argument, but what he said at argument certainly made
Speaker 1: it honest if he was leading in the direction of
Speaker 1: the Verson Row. Justice Kavanaugh came up with a list
Speaker 1: of past Supreme Court cases that had overruled earlier decisions
Speaker 1: ruled against precedent, including Brown v. Board of Education, which
Speaker 1: outlawed the separate but Equal doctrine. We hear these justices
Speaker 1: during confirmation hearings. Talking about Roe as settled precedent, Kavanaugh
Speaker 1: said that Row was settled as precedent of the Supreme
Speaker 1: Court at his confirmation hearings. You could go back to
Speaker 1: Justice Alito, who also said it was settled precedent, and
Speaker 1: the Justice obviously, unless there's some kind of Supreme Court reform,
Speaker 1: there's no accountability for not living up the statements you
Speaker 1: make in your confirmation hearings after you're confirmed. And I think,
Speaker 1: of course all of them try to give themselves possible
Speaker 1: to my ability by being vague, But there's no denying
Speaker 1: that there's tension between much Justice Kavanaugh said as his
Speaker 1: hearings and what he seemed to be saying yesterday, Justice
Speaker 1: Sonia Soda Mayor made this statement about, you know, how
Speaker 1: will we get the stench off this court? So are
Speaker 1: the conservative justices not concerned at all about public opinion
Speaker 1: or public reaction and not saying that they should be
Speaker 1: because we want judges to be independent. But it does
Speaker 1: it seem as if that's no concern of theirs anymore. Yeah,
Speaker 1: I mean, I think it's a combination of um. Some
Speaker 1: of them don't care and don't think they should care,
Speaker 1: and I think some of them may care but think
Speaker 1: that there's a way to finesse it um. I think
Speaker 1: Justice Kavanaugh's questions seemed to be sort of reaching for
Speaker 1: that right to say, this is not the court harming people,
Speaker 1: This is not the court ignoring precedent. This is the
Speaker 1: Court being scrupulously neutral. This is the Court being fair.
Speaker 1: This is the Court restoring some kind of true compromise
Speaker 1: where everyone gets to stay. And I think Kavin on
Speaker 1: me well believed that a decision like that would not
Speaker 1: damage the court. I don't think most observers agree with
Speaker 1: him on that, but I think he may think there's
Speaker 1: a way to sort of finesse, you know, getting rid
Speaker 1: of what he thinks is a wrongly decided decision without
Speaker 1: damaging the Court too much. Um. I think many of
Speaker 1: the justices, like for example, Justice Thomas, I think, just
Speaker 1: don't think that it's important, or that if they do,
Speaker 1: they're primarily concerned with the response of people with whom
Speaker 1: they agree, rather than the sort of broader public response.
Speaker 1: At the beginning of the arguments, Thomas asked how the
Speaker 1: Court could uphold the Mississippi law without overturning the Court's
Speaker 1: precedence on abortion. Is that even possible to do? Not
Speaker 1: if you leave grow entirely intact. Cluster General Elizabeth the
Speaker 1: Lager said, the idea of a right to abortion it's
Speaker 1: important independent of viability, and the Court could say that
Speaker 1: essentially that viability is more flawed, just as the Court
Speaker 1: said in Casey that are right to choose abortion was
Speaker 1: important independent of rose trimester framework. There's a way to
Speaker 1: do that. Obviously, to do that you have to rewrite
Speaker 1: what real means. So there's no way to do it
Speaker 1: and leave row intact. But I think it's also disingenuous
Speaker 1: to say that. You would have to say there's no
Speaker 1: abortion right if you say there's no viability. I don't
Speaker 1: think that follows. But I think many of the justices
Speaker 1: want to say there's no abortion right, many of the
Speaker 1: advocates on both sides. I think it's preferable for the
Speaker 1: court to say there's no abortion right if they're going
Speaker 1: to side with Mississippi, and so it seems increasingly likely
Speaker 1: that that's what we're going to get. So even if
Speaker 1: the Court doesn't explicitly overturn Row, what a decision upholding
Speaker 1: Mississippi's law I'll have a far reaching impact totally. I mean,
Speaker 1: we would expect to see states interpreting this as a
Speaker 1: green light to move forward with absolute fans. We would
Speaker 1: expect to see circuit courts agreeing with that assessment and
Speaker 1: allowing more abortion bands to stand. And we would expect,
Speaker 1: I think, to see the Court moved towards reversing Row
Speaker 1: entirely not long thereafter. And I think you might even
Speaker 1: see states with trigger laws which go into effect when
Speaker 1: ROW was gone, arguing that rowe had been overturned and
Speaker 1: that their trigger laws or bands could go into effect
Speaker 1: if the Court overturns ROW. What would be the next step.
Speaker 1: Could we see a time where abortion is declared unconstitutional? Yeah,
Speaker 1: it's on the table. I mean anti abortion groups are
Speaker 1: already asking for it. So, for example, their anekest briefs
Speaker 1: in this taste arguing that an unborn child is a
Speaker 1: rights holding person and asking the court to hold the
Speaker 1: abortion is unconstitutional. That doesn't seem likely in the short term,
Speaker 1: in part, of course, because Kavanaugh seems to try to
Speaker 1: foreclose that possibility right his argument that the Constitution was neutral.
Speaker 1: He's tried to clarify with Mississippi several times, are saying
Speaker 1: the Constitution says nothing about this right. You're not saying
Speaker 1: the Constitution is pro life. So at the moment, it
Speaker 1: seems that there would not be five votes for that approach.
Speaker 1: But of course there weren't five votes for overturning Row
Speaker 1: not so long ago. And so the Overton window quite
Speaker 1: clearly is shifting on this, and I don't think he
Speaker 1: could rule that kind of thing out in the future.
Speaker 1: Is it a majority of abortion opponents who are looking
Speaker 1: towards that complete ban on abortion or is that just
Speaker 1: the fringes. No, that's the majority. Um, there are people
Speaker 1: in the anti abortion movement who I believe there should
Speaker 1: be exceptions, but the anti abortion movement, it's worth sort
Speaker 1: of unpacking what the anti abortion movement believes. It's from
Speaker 1: the standpoint of someone who's supposed abortion. It's a human
Speaker 1: rights movement, and that means that allowing the states to
Speaker 1: decide on whether a human lives or dies is a
Speaker 1: completely unacceptable solution. So the argument that a fetis or
Speaker 1: a borg child is a right solving person is that
Speaker 1: the constitutional argument that brought in any abortion opponents into
Speaker 1: the movement. It was an argument that predated Row. It's
Speaker 1: a deeply felt argument and so this is in no
Speaker 1: way for an argument. The reason we haven't heard more
Speaker 1: of it estimely because anti abortion lawyers didn't think it
Speaker 1: would work. I mean, I think correctly they thought it
Speaker 1: wouldn't work, but it's never really changed the fact that
Speaker 1: that's what most of the movement wants. And we would expect,
Speaker 1: I think, to see an Evolden Nancy abortion movement as
Speaker 1: a court of versus real because the Court will then be,
Speaker 1: I think, in their views, sort of declaring the open season,
Speaker 1: or at least opening the door to that kind of artsment.
Speaker 1: So what would be needed to prevent that? Can Congress
Speaker 1: do something? No? I mean, if the court holds that
Speaker 1: if if fetus is a person, Congress. That's a constitutional holding.
Speaker 1: So the only way to change that would be to
Speaker 1: reform the court. Again, I don't think this is happening
Speaker 1: soon because it seems that, for example, I don't know
Speaker 1: if there any there any votes for that on the
Speaker 1: court right now. I would be unsurprised if there were
Speaker 1: a few. I don't, for example, think Kavanaar there it
Speaker 1: would go for that right now. But I think really
Speaker 1: if the Court declares that, you know, declare speed old personhood,
Speaker 1: the solution would have to be either at constitutional amendment
Speaker 1: or changing the court. Finally, I just want you to
Speaker 1: sum up what you think. I know you're referred to
Speaker 1: it before, what you think is likely to happen here,
Speaker 1: knowing that you can't tell from moral arguments. I mean,
Speaker 1: the most likely thing I think, based on oral arguments
Speaker 1: is the Court is going to say that there's no
Speaker 1: constitutional right to abortion and the space are going to
Speaker 1: be able to be an abortion by the summer of two.
Speaker 1: So that means an overturning of row. Yes, I think
Speaker 1: that's the most likely breased on yesterday, do you think
Speaker 1: that would be a six three vote? But that's an
Speaker 1: interesting question. If they're going to overrule Row. I think
Speaker 1: Robert's may go along with it because he would want
Speaker 1: the courts to look united. I think he would think
Speaker 1: it would be worst of a five four decisions overturning Row,
Speaker 1: but I don't know. I mean it would either be
Speaker 1: six three or five four. Thanks for being in the
Speaker 1: Boomberg Glass show. Mary. That's Professor Mary Ziegler of Florida
Speaker 1: State University College of Law. This all boils down to
Speaker 1: two decides. Who decides when it's in the best interests
Speaker 1: of the United States to disclose presidential records. He's the
Speaker 1: current occupant of the White House or um or the
Speaker 1: former who does have some interest in the confidentiality of
Speaker 1: the document. D C Circuit Court Judge Katangi Brown Jackson
Speaker 1: summed up the main question and former President Donald Trump's
Speaker 1: lawsuit to stop the National Archives from releasing White House
Speaker 1: records to the House Committee investigating the January sixth Capital Riots.
Speaker 1: Executive privileges typically reserved for the current ocupant of the
Speaker 1: White House, and at oral arguments on Tuesday, all three
Speaker 1: judges appeared skeptical about Trump's invocation of executive privilege in
Speaker 1: a case where President Joe Biden has waived it. Here's
Speaker 1: Circuit Court Judge Patricia Millett. We have one president at
Speaker 1: a time under our constitution. That's what G. S A
Speaker 1: is saying, and that the incumbent president has said, has
Speaker 1: made the judgment and is best positioned, and its frame
Speaker 1: court has told us um to make that call as
Speaker 1: the interest in executive branch. My guest