WEBVTT - Will Roe v. Wade Survive? 0:00:03.200 --> 0:00:09.360 This is Bloomberg Law, with June Bresso from Bloomberg Radio A. 0:00:09.400 --> 0:00:12.160 Abortion rights have been guaranteed in the United States for 0:00:12.280 --> 0:00:15.680 nearly fifty years under the landmark ruling of Roe v. Wade, 0:00:16.000 --> 0:00:19.319 but now, in the most consequential reproductive rights case in 0:00:19.360 --> 0:00:22.759 a generation, it appears the Supreme Court is ready to 0:00:22.880 --> 0:00:27.080 roll back abortion rights or perhaps eliminate the constitutional right 0:00:27.160 --> 0:00:31.479 to abortion altogether. During oral arguments this week, all six 0:00:31.560 --> 0:00:36.120 conservative justices indicated they would uphold Mississippi's ban on abortion 0:00:36.200 --> 0:00:40.000 after fifteen weeks of pregnancy, although the justices appeared to 0:00:40.040 --> 0:00:42.959 be divided on just how far they would go here 0:00:43.000 --> 0:00:46.559 at Chief Justice John Roberts and Justices Samuel Alito and 0:00:46.560 --> 0:00:49.840 Brett Kavanaugh. If it really is an issue about choice, 0:00:49.880 --> 0:00:55.800 why is fifteen weeks not enough time? The fetus has 0:00:55.840 --> 0:00:59.760 an interest in having a life, and that doesn't change, 0:01:00.040 --> 0:01:03.400 is it from the point before viability to the point 0:01:03.480 --> 0:01:09.000 after viability? Why should this court be the arbiter rather 0:01:09.120 --> 0:01:14.959 than Congress, the state legislatures, state supreme courts, the people 0:01:15.800 --> 0:01:19.960 being able to resolve this. And there'll be different answers 0:01:20.280 --> 0:01:23.920 in Mississippi and New York. Justice Sonia So to Mayor 0:01:24.000 --> 0:01:27.240 and the two other liberal justices said that a decision 0:01:27.319 --> 0:01:32.600 gutting the courts precedent on abortion would undermine the courts legitimacy. 0:01:32.880 --> 0:01:40.280 Will this institution survive the stench that this creates in 0:01:40.440 --> 0:01:48.680 the public perception that the Constitution and it's reading are 0:01:48.760 --> 0:01:53.800 just political acts. I don't see how it is possible. 0:01:54.360 --> 0:01:57.240 Joining me is Mary Ziegler, a professor at Florida State 0:01:57.320 --> 0:02:00.640 University College of Law who specialized is in the legal 0:02:00.720 --> 0:02:03.720 history of reproductive rights. Mary, what was your take on 0:02:03.760 --> 0:02:06.800 the arguments? The overall impression I got, obviously is that 0:02:06.800 --> 0:02:09.040 Mississippi is going to win, and I think it's much 0:02:09.080 --> 0:02:10.880 more likely that the Court has been over to and 0:02:10.960 --> 0:02:13.680 Row outright this summer. You know, with the usual caveats 0:02:13.720 --> 0:02:17.680 that things can change between argument and decision. What was 0:02:17.720 --> 0:02:21.760 the main question? Was it the viability standard, the presidential 0:02:21.840 --> 0:02:25.000 value of row? Definitely more of the latter than the former, 0:02:25.080 --> 0:02:26.600 for sure. I mean there was a lot of time 0:02:26.680 --> 0:02:29.600 spent on the presidential value of row and whether the 0:02:29.639 --> 0:02:32.120 Constitution is silent or a sprick have enough put it 0:02:32.280 --> 0:02:35.440 scrupulously neutral about abortion? Right? There was much less time 0:02:35.480 --> 0:02:39.560 spent on viability. Although Chief Justice John Roberts certainly focused 0:02:39.600 --> 0:02:43.640 on viability, and Amy Coby Barrett at some point showed 0:02:43.680 --> 0:02:46.040 some interest in that line of questioning as well, but 0:02:46.240 --> 0:02:49.520 the majority of the questions focused on whether Row was 0:02:49.560 --> 0:02:52.639 the kind of precedent that deserve respect. The Chief Justice 0:02:53.040 --> 0:02:55.800 is an incrementalist. He likes to change law a little 0:02:55.840 --> 0:02:58.359 by little. Was he looking for a middle ground that 0:02:58.440 --> 0:03:00.959 none of the conservatives took him up on. I think 0:03:00.960 --> 0:03:03.040 that's a stereo reading of it, although I think the 0:03:03.040 --> 0:03:05.600 only person who consider taking him up on it is 0:03:05.639 --> 0:03:08.360 Justice Sparret. I think she's probably going to be, at 0:03:08.440 --> 0:03:10.800 least based on the argument, the person whose vote is 0:03:10.800 --> 0:03:13.600 the most upper grabs in the case. But I mean, 0:03:13.639 --> 0:03:17.320 obviously getting rid of viability would be a major change 0:03:17.360 --> 0:03:20.040 to abortion doctrine. So while I think it's right to 0:03:20.120 --> 0:03:23.800 frame Roberts as an incrementalist in frame data searched forminal 0:03:23.800 --> 0:03:26.520 ground solution, I think it's also worth qualifying that, you know, 0:03:26.600 --> 0:03:30.200 this is not usually what passes for a compromise, but 0:03:30.320 --> 0:03:32.440 I think that's what he was trying to do, and 0:03:32.480 --> 0:03:35.360 I think that with maybe the exception of Justice Sparret, 0:03:35.400 --> 0:03:39.559 there were no takers. Was the only question for conservatives 0:03:39.600 --> 0:03:43.520 whether to overrule Row entirely or whether to stop at 0:03:43.560 --> 0:03:47.440 fifteen weeks in the Mississippi law. Was there any inkling 0:03:47.480 --> 0:03:52.280 of support for maintaining the current rule and precedent. No, 0:03:52.440 --> 0:03:54.320 I mean not really. I don't think that any of 0:03:54.360 --> 0:03:57.600 the conservatives seem interested in that. How did we come 0:03:57.680 --> 0:04:01.240 this far this fast? It's just a few years ago. 0:04:01.400 --> 0:04:04.880 It seemed like Rowe was on pretty solid ground. Yes, 0:04:04.960 --> 0:04:07.760 obviously quite sudden. I mean, I think Justice Soto Mayor, 0:04:07.880 --> 0:04:11.040 although people who are anti abortion or prollected like the 0:04:11.200 --> 0:04:14.120 tone of her question, had a point in saying, you know, 0:04:14.280 --> 0:04:17.040 legislators have been saying, essentially, we can do whatever we 0:04:17.080 --> 0:04:19.360 want when it comes to worship because we have the votes. 0:04:19.880 --> 0:04:22.760 And it does seem to have changed quite rapidly that 0:04:22.960 --> 0:04:26.640 we've gone from June medical not even two years ago, 0:04:27.160 --> 0:04:29.440 to an oral argument where the court seems ready to 0:04:29.880 --> 0:04:32.000 throw out the whole kitten to rudle. So I think 0:04:32.040 --> 0:04:34.000 there's no other way to explain it other than the 0:04:34.040 --> 0:04:38.200 courts membership changing. Nothing else has been that transformative in 0:04:38.279 --> 0:04:43.599 the time between June of and the winter. Did it 0:04:43.680 --> 0:04:48.240 seem as if there were three camps Justices Clarence Thomas 0:04:48.320 --> 0:04:52.160 Samuel Alto and Neil Gorst you are ready to overturn Row. 0:04:52.839 --> 0:04:55.080 And on the other side you have the liberal justices 0:04:55.200 --> 0:05:00.280 Stephen Bryer Elina Kagan who want to preserve row obvious sleep. 0:05:00.680 --> 0:05:03.640 And then this other group of Chief Justice John Roberts, 0:05:03.720 --> 0:05:06.880 Brett Kavanaugh, and Amy Coney Barrett, where I'm not sure 0:05:06.960 --> 0:05:11.680 where they were. Does the decision depend on those three? Absolutely? Yeah, 0:05:11.680 --> 0:05:14.880 I mean based on the argument, I'm not sure I 0:05:14.920 --> 0:05:17.919 would lay out the configuration that way that was the 0:05:17.920 --> 0:05:20.720 configuration going in. It's just based on the argument. If 0:05:20.720 --> 0:05:23.400 you knew nothing else with the argument, you would say 0:05:23.440 --> 0:05:26.440 that there were four justices ready to overall Row right now, 0:05:26.680 --> 0:05:30.640 and you would include Brett Kavanaugh alongside Clarence Thomas, Samuel Alito, 0:05:30.680 --> 0:05:34.000 and ther Corsage and put John Roberts and Amy Coney 0:05:34.040 --> 0:05:37.000 Barrett in the middle, with Barrett I think leaning more 0:05:37.120 --> 0:05:41.280 towards the Kavanaugh at all camps and Robert certainly sort 0:05:41.279 --> 0:05:44.400 of standing on his own in this kind of viability 0:05:44.480 --> 0:05:46.839 strategy that he laid out. But I think the votes 0:05:46.920 --> 0:05:50.120 were watching probably most closely, will be just the Sparret's vote. 0:05:50.520 --> 0:05:53.839 Justice Kavanaugh, of course was more and up for grabs vote. 0:05:53.920 --> 0:05:55.880 We all thought that, and so we may, of course 0:05:55.960 --> 0:05:57.560 don't want to read too much into what he said 0:05:57.560 --> 0:05:59.760 at argument, but what he said at argument certainly made 0:05:59.760 --> 0:06:01.640 it honest if he was leading in the direction of 0:06:01.640 --> 0:06:04.520 the Verson Row. Justice Kavanaugh came up with a list 0:06:04.680 --> 0:06:09.240 of past Supreme Court cases that had overruled earlier decisions 0:06:09.640 --> 0:06:13.440 ruled against precedent, including Brown v. Board of Education, which 0:06:13.640 --> 0:06:17.600 outlawed the separate but Equal doctrine. We hear these justices 0:06:17.680 --> 0:06:23.680 during confirmation hearings. Talking about Roe as settled precedent, Kavanaugh 0:06:23.760 --> 0:06:27.240 said that Row was settled as precedent of the Supreme 0:06:27.320 --> 0:06:30.400 Court at his confirmation hearings. You could go back to 0:06:30.480 --> 0:06:34.000 Justice Alito, who also said it was settled precedent, and 0:06:34.120 --> 0:06:38.160 the Justice obviously, unless there's some kind of Supreme Court reform, 0:06:38.240 --> 0:06:41.240 there's no accountability for not living up the statements you 0:06:41.279 --> 0:06:44.360 make in your confirmation hearings after you're confirmed. And I think, 0:06:44.400 --> 0:06:47.080 of course all of them try to give themselves possible 0:06:47.120 --> 0:06:50.440 to my ability by being vague, But there's no denying 0:06:50.480 --> 0:06:53.640 that there's tension between much Justice Kavanaugh said as his 0:06:53.720 --> 0:06:57.760 hearings and what he seemed to be saying yesterday, Justice 0:06:57.800 --> 0:07:01.320 Sonia Soda Mayor made this statement about, you know, how 0:07:01.360 --> 0:07:04.599 will we get the stench off this court? So are 0:07:04.680 --> 0:07:09.359 the conservative justices not concerned at all about public opinion 0:07:09.560 --> 0:07:12.480 or public reaction and not saying that they should be 0:07:12.480 --> 0:07:16.360 because we want judges to be independent. But it does 0:07:16.360 --> 0:07:20.400 it seem as if that's no concern of theirs anymore. Yeah, 0:07:20.400 --> 0:07:23.240 I mean, I think it's a combination of um. Some 0:07:23.320 --> 0:07:25.440 of them don't care and don't think they should care, 0:07:26.040 --> 0:07:28.520 and I think some of them may care but think 0:07:28.520 --> 0:07:31.040 that there's a way to finesse it um. I think 0:07:31.320 --> 0:07:34.120 Justice Kavanaugh's questions seemed to be sort of reaching for 0:07:34.160 --> 0:07:38.640 that right to say, this is not the court harming people, 0:07:39.000 --> 0:07:42.160 This is not the court ignoring precedent. This is the 0:07:42.200 --> 0:07:45.520 Court being scrupulously neutral. This is the Court being fair. 0:07:45.680 --> 0:07:48.960 This is the Court restoring some kind of true compromise 0:07:49.000 --> 0:07:51.280 where everyone gets to stay. And I think Kavin on 0:07:51.360 --> 0:07:54.520 me well believed that a decision like that would not 0:07:54.880 --> 0:07:58.040 damage the court. I don't think most observers agree with 0:07:58.120 --> 0:08:00.960 him on that, but I think he may think there's 0:08:01.000 --> 0:08:03.680 a way to sort of finesse, you know, getting rid 0:08:03.720 --> 0:08:06.920 of what he thinks is a wrongly decided decision without 0:08:07.040 --> 0:08:10.400 damaging the Court too much. Um. I think many of 0:08:10.400 --> 0:08:12.880 the justices, like for example, Justice Thomas, I think, just 0:08:12.960 --> 0:08:15.880 don't think that it's important, or that if they do, 0:08:15.960 --> 0:08:19.480 they're primarily concerned with the response of people with whom 0:08:19.480 --> 0:08:22.080 they agree, rather than the sort of broader public response. 0:08:22.680 --> 0:08:26.000 At the beginning of the arguments, Thomas asked how the 0:08:26.080 --> 0:08:30.320 Court could uphold the Mississippi law without overturning the Court's 0:08:30.440 --> 0:08:36.080 precedence on abortion. Is that even possible to do? Not 0:08:36.280 --> 0:08:39.719 if you leave grow entirely intact. Cluster General Elizabeth the 0:08:39.880 --> 0:08:42.800 Lager said, the idea of a right to abortion it's 0:08:42.840 --> 0:08:45.680 important independent of viability, and the Court could say that 0:08:45.840 --> 0:08:49.720 essentially that viability is more flawed, just as the Court 0:08:49.760 --> 0:08:52.080 said in Casey that are right to choose abortion was 0:08:52.200 --> 0:08:55.400 important independent of rose trimester framework. There's a way to 0:08:55.480 --> 0:08:57.840 do that. Obviously, to do that you have to rewrite 0:08:57.840 --> 0:09:00.480 what real means. So there's no way to do it 0:09:00.720 --> 0:09:04.760 and leave row intact. But I think it's also disingenuous 0:09:04.800 --> 0:09:06.840 to say that. You would have to say there's no 0:09:06.920 --> 0:09:09.920 abortion right if you say there's no viability. I don't 0:09:09.960 --> 0:09:12.800 think that follows. But I think many of the justices 0:09:12.840 --> 0:09:15.360 want to say there's no abortion right, many of the 0:09:15.440 --> 0:09:18.840 advocates on both sides. I think it's preferable for the 0:09:18.880 --> 0:09:21.120 court to say there's no abortion right if they're going 0:09:21.160 --> 0:09:24.160 to side with Mississippi, and so it seems increasingly likely 0:09:24.240 --> 0:09:26.400 that that's what we're going to get. So even if 0:09:26.440 --> 0:09:31.880 the Court doesn't explicitly overturn Row, what a decision upholding 0:09:31.920 --> 0:09:36.520 Mississippi's law I'll have a far reaching impact totally. I mean, 0:09:36.559 --> 0:09:40.080 we would expect to see states interpreting this as a 0:09:40.080 --> 0:09:43.600 green light to move forward with absolute fans. We would 0:09:43.600 --> 0:09:46.960 expect to see circuit courts agreeing with that assessment and 0:09:46.960 --> 0:09:51.360 allowing more abortion bands to stand. And we would expect, 0:09:51.760 --> 0:09:55.160 I think, to see the Court moved towards reversing Row 0:09:55.360 --> 0:09:59.720 entirely not long thereafter. And I think you might even 0:09:59.760 --> 0:10:02.719 see states with trigger laws which go into effect when 0:10:02.760 --> 0:10:05.400 ROW was gone, arguing that rowe had been overturned and 0:10:05.440 --> 0:10:08.439 that their trigger laws or bands could go into effect 0:10:09.360 --> 0:10:13.200 if the Court overturns ROW. What would be the next step. 0:10:13.559 --> 0:10:19.240 Could we see a time where abortion is declared unconstitutional? Yeah, 0:10:19.320 --> 0:10:21.800 it's on the table. I mean anti abortion groups are 0:10:21.800 --> 0:10:26.120 already asking for it. So, for example, their anekest briefs 0:10:26.120 --> 0:10:29.160 in this taste arguing that an unborn child is a 0:10:29.240 --> 0:10:31.959 rights holding person and asking the court to hold the 0:10:32.000 --> 0:10:35.480 abortion is unconstitutional. That doesn't seem likely in the short term, 0:10:35.679 --> 0:10:37.880 in part, of course, because Kavanaugh seems to try to 0:10:37.920 --> 0:10:41.800 foreclose that possibility right his argument that the Constitution was neutral. 0:10:42.120 --> 0:10:44.560 He's tried to clarify with Mississippi several times, are saying 0:10:44.600 --> 0:10:46.960 the Constitution says nothing about this right. You're not saying 0:10:47.000 --> 0:10:49.320 the Constitution is pro life. So at the moment, it 0:10:49.360 --> 0:10:52.280 seems that there would not be five votes for that approach. 0:10:52.640 --> 0:10:55.679 But of course there weren't five votes for overturning Row 0:10:56.120 --> 0:10:58.880 not so long ago. And so the Overton window quite 0:10:58.880 --> 0:11:00.520 clearly is shifting on this, and I don't think he 0:11:00.559 --> 0:11:02.600 could rule that kind of thing out in the future. 0:11:03.320 --> 0:11:08.400 Is it a majority of abortion opponents who are looking 0:11:08.440 --> 0:11:12.760 towards that complete ban on abortion or is that just 0:11:12.880 --> 0:11:16.280 the fringes. No, that's the majority. Um, there are people 0:11:16.360 --> 0:11:20.079 in the anti abortion movement who I believe there should 0:11:20.080 --> 0:11:23.199 be exceptions, but the anti abortion movement, it's worth sort 0:11:23.200 --> 0:11:25.920 of unpacking what the anti abortion movement believes. It's from 0:11:25.960 --> 0:11:28.040 the standpoint of someone who's supposed abortion. It's a human 0:11:28.120 --> 0:11:32.840 rights movement, and that means that allowing the states to 0:11:32.920 --> 0:11:35.800 decide on whether a human lives or dies is a 0:11:35.840 --> 0:11:39.839 completely unacceptable solution. So the argument that a fetis or 0:11:39.840 --> 0:11:41.760 a borg child is a right solving person is that 0:11:41.920 --> 0:11:45.480 the constitutional argument that brought in any abortion opponents into 0:11:45.480 --> 0:11:49.079 the movement. It was an argument that predated Row. It's 0:11:49.120 --> 0:11:51.800 a deeply felt argument and so this is in no 0:11:51.840 --> 0:11:53.920 way for an argument. The reason we haven't heard more 0:11:53.960 --> 0:11:57.640 of it estimely because anti abortion lawyers didn't think it 0:11:57.679 --> 0:11:59.640 would work. I mean, I think correctly they thought it 0:11:59.640 --> 0:12:03.040 wouldn't work, but it's never really changed the fact that 0:12:03.040 --> 0:12:06.840 that's what most of the movement wants. And we would expect, 0:12:06.920 --> 0:12:09.560 I think, to see an Evolden Nancy abortion movement as 0:12:09.559 --> 0:12:11.640 a court of versus real because the Court will then be, 0:12:12.160 --> 0:12:14.640 I think, in their views, sort of declaring the open season, 0:12:14.720 --> 0:12:16.760 or at least opening the door to that kind of artsment. 0:12:17.520 --> 0:12:20.320 So what would be needed to prevent that? Can Congress 0:12:20.360 --> 0:12:22.920 do something? No? I mean, if the court holds that 0:12:23.000 --> 0:12:27.040 if if fetus is a person, Congress. That's a constitutional holding. 0:12:27.720 --> 0:12:30.719 So the only way to change that would be to 0:12:31.120 --> 0:12:34.000 reform the court. Again, I don't think this is happening 0:12:34.400 --> 0:12:37.559 soon because it seems that, for example, I don't know 0:12:37.559 --> 0:12:39.440 if there any there any votes for that on the 0:12:39.440 --> 0:12:42.520 court right now. I would be unsurprised if there were 0:12:42.520 --> 0:12:45.719 a few. I don't, for example, think Kavanaar there it 0:12:45.760 --> 0:12:48.880 would go for that right now. But I think really 0:12:48.920 --> 0:12:52.760 if the Court declares that, you know, declare speed old personhood, 0:12:53.440 --> 0:12:56.199 the solution would have to be either at constitutional amendment 0:12:56.240 --> 0:12:59.000 or changing the court. Finally, I just want you to 0:12:59.040 --> 0:13:01.439 sum up what you think. I know you're referred to 0:13:01.480 --> 0:13:04.920 it before, what you think is likely to happen here, 0:13:05.200 --> 0:13:08.079 knowing that you can't tell from moral arguments. I mean, 0:13:08.080 --> 0:13:10.360 the most likely thing I think, based on oral arguments 0:13:10.360 --> 0:13:11.840 is the Court is going to say that there's no 0:13:11.920 --> 0:13:14.400 constitutional right to abortion and the space are going to 0:13:14.400 --> 0:13:17.880 be able to be an abortion by the summer of two. 0:13:18.400 --> 0:13:21.200 So that means an overturning of row. Yes, I think 0:13:21.200 --> 0:13:24.280 that's the most likely breased on yesterday, do you think 0:13:24.280 --> 0:13:26.840 that would be a six three vote? But that's an 0:13:26.880 --> 0:13:29.000 interesting question. If they're going to overrule Row. I think 0:13:29.080 --> 0:13:31.400 Robert's may go along with it because he would want 0:13:31.720 --> 0:13:34.079 the courts to look united. I think he would think 0:13:34.080 --> 0:13:38.120 it would be worst of a five four decisions overturning Row, 0:13:38.360 --> 0:13:40.200 but I don't know. I mean it would either be 0:13:40.280 --> 0:13:42.280 six three or five four. Thanks for being in the 0:13:42.320 --> 0:13:45.760 Boomberg Glass show. Mary. That's Professor Mary Ziegler of Florida 0:13:45.840 --> 0:13:50.640 State University College of Law. This all boils down to 0:13:50.840 --> 0:13:55.679 two decides. Who decides when it's in the best interests 0:13:55.720 --> 0:14:00.200 of the United States to disclose presidential records. He's the 0:14:00.280 --> 0:14:04.920 current occupant of the White House or um or the 0:14:04.960 --> 0:14:09.440 former who does have some interest in the confidentiality of 0:14:09.520 --> 0:14:13.680 the document. D C Circuit Court Judge Katangi Brown Jackson 0:14:13.840 --> 0:14:17.400 summed up the main question and former President Donald Trump's 0:14:17.520 --> 0:14:21.320 lawsuit to stop the National Archives from releasing White House 0:14:21.360 --> 0:14:26.400 records to the House Committee investigating the January sixth Capital Riots. 0:14:26.440 --> 0:14:30.200 Executive privileges typically reserved for the current ocupant of the 0:14:30.200 --> 0:14:33.920 White House, and at oral arguments on Tuesday, all three 0:14:34.000 --> 0:14:38.880 judges appeared skeptical about Trump's invocation of executive privilege in 0:14:38.880 --> 0:14:42.000 a case where President Joe Biden has waived it. Here's 0:14:42.000 --> 0:14:45.120 Circuit Court Judge Patricia Millett. We have one president at 0:14:45.160 --> 0:14:47.280 a time under our constitution. That's what G. S A 0:14:47.400 --> 0:14:50.920 is saying, and that the incumbent president has said, has 0:14:50.920 --> 0:14:53.840 made the judgment and is best positioned, and its frame 0:14:53.880 --> 0:14:56.800 court has told us um to make that call as 0:14:56.840 --> 0:14:59.040 the interest in executive branch. My guest