Mo News Premium: Abortion in America

**This Wednesday edition of Mo News would typically only be available to premium subscribers. However, because of the high interest in the Supreme Court's leaked decision on abortion, we're PAUSING our paywall and making our premium edition available for ALL subscribers this week. If you'd like to support our work, sign up for our premium content HERE. **

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Good morning,

Let's get right to the big issue of the week: The Supreme Court appears poised to overturn Roe v. Wade, upending abortion rights in the United States.

This week we will feature an interview with CBS News Chief Legal Correspondent Jan Crawford. We spoke to her just after the Supreme Court heard arguments on the Mississippi law banning abortion after 15 weeks. At the time, based on the justices' questions, Crawford thought the stage was set for the 6-3 conservative majority court to overturn the Roe v. Wade precedent. Her analysis was spot-on.

Before we get to the interview, some answers to the biggest questions about state of abortion rights in America:

Q: What exactly happened this week and where do things stand?

A: The biggest leak in modern Supreme Court history. An initial draft majority opinion was published in Politico, authored by Justice Samuel Alito in early February, striking down the landmark 1973 Roe v. Wade decision that made abortion legal nationally. It comes after the court heard a case in December regarding a Mississippi law that would ban abortion after 15 weeks. (Roe's precedent has allowed abortions up until 23 weeks) As opposed to a narrow ruling on the Mississippi law, Politico reports the "draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right."

Q: Which justices are reportedly voting to overturn Roe v. Wade?

A: It appears we are headed for a 5-4 decision. Sources tell Politico that Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all initially voted with Justice Alito, who wrote that leaked majority draft opinion. (Gorsuch, Kavanaugh and Barrett were all appointed by President Trump.)

The court has a 6-3 conservative majority but it's still unclear how Chief Justice John Roberts (also appointed by a Republican) will vote. There is reporting that he was potentially in favor of a compromise approach for conservatives that would uphold the Mississippi ban at 15 weeks, but still maintain Roe v Wade. It doesn't appear anyone was persuaded by that approach as of the leaked February draft. He could also join the court's liberals.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan-- the three justices appointed by Democratic presidents, are reportedly working on dissents.

Q: When would this decision take effect?

A: Major decisions are typically released in late June/early July at the end of the annual term. But, remember that this was just an initial draft showing a 5-4 majority from early February. Justices go through multiple decision drafts and could re-vote several times. The final decision isn't expected to be released for 8+ weeks, and legal analysts say it could change. Until then, Roe v. Wade still stands.

Q: Who leaked the initial draft to Politico?

A: It's still unclear. Chief Justice John Roberts ordered an investigation into the source of the leak and put out a rare statement calling it a "singular and egregious breach" of trust. But he says "the work of the Court will not be affected in any way."

There are multiple arguments as to why a liberal or a conservative with access to the opinion inside the court might leak this.

• Some legal scholars argue that an anti-Roe conservative who wants to lock in the 5-4 majority would leak this to prevent a defection. Their argument is that a leak might have been in response to rumblings one of the five might defect. Following the leak, they would be embarrassed to switch sides because it would appear they are responding to public opinion.

• Others argue that a pro-Roe liberal on the court leaked this about 8 weeks before the decision is expected to come out to help stir up abortion rights protesters, enable legislators to pass laws protecting abortion in states and potentially in Congress.

• Slate actually goes through four possible scenarios in a new piece including one where Roberts is the leaker!

Either way, it's unprecedented. According to the AP: "While there have, on very rare occasions, been leaks of the outcomes in cases, the publication of a draft running nearly 100 pages was without an evident modern parallel."

The late Ruth Bader Ginsburg used to say: "At the Supreme Court, those who know don’t talk, and those who talk don’t know." Until Now.

Q: What's likely to happen to the leaker?

A: There's only a few dozen people with access to these materials. It's likely that the person who leaked the draft will lose their job, but unlikely that person will face any type of criminal charges since it is unclear that they broke any laws. Nevertheless, some Republicans are already calling on the Justice Department to prosecute the leaker, when they learn their identity.

Q: If the justices do overturn the Roe v. Wade precedent, what will it mean for abortion rights in the United States?

A: It is the court essentially stepping away from the issue. Abortion rights will be determined by individual states like they did prior to 1973. An NBC News analysis shows that 23 states would immediately institute bans, with "trigger laws" on the books in 13 of those states that take effect if Roe is no longer the law of the land.

Note that some states like Michigan have laws banning abortion still on the books (from 1931) that would go back into effect should Roe go down. However, in Michigan's case the Democratic governor and attorney general have said they will not be enforcing the ban and are trying to preserve abortion rights.

Courtesy: NBC News

Q: Can Congress pass a law legalizing abortion on the federal level?

A: In response to Monday's leak, Senate Majority Leader Chuck Schumer, D-N.Y., already said the Senate will vote to codify the right to abortion into federal law. But Democrats only control 50 seats in the Senate, and they would need a filibuster-proof 60 votes in order to have a supermajority needed to pass a law protecting abortion rights. Democrats also don't have enough votes to change the current filibuster laws, with Kyrsten Sinema of Arizona and Joe Manchin of West Virginia opposed to changing the rules. Manchin also happens to be pro-life. ~ NPR

Q: Is there anything President Biden can do?

A: Not really (hence, three branches of government & checks and balances). President Biden says his administration will respond once the Supreme Court makes it formal ruling. On Tuesday, he put out a statement urging voters to send more candidates to Congress who support a women's right to choose.

So far, he hasn't backed a plan to get rid of the filibuster in the Senate, which would allow for a simple majority to pass a federal abortion law. He also hasn't seemed interested in expanding the Supreme Court to add more liberal justices. And again, Democrats in the Senate don't have the votes for that either. ~ Reuters

Q: Does this open the door to the court overturning other decisions like gay marriage?

A: Potentially. The concern revolves around Justice Alito’s narrow interpretation of what constitutes a fundamental right and repeated references to the idea that any right not mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” to be recognized. Legal analysts are divided on whether the right to same-sex marriage is actually in danger. Some say the draft opinion in the abortion case provides a road map for the court to hold that same-sex marriage is not a fundamental right. Others argue that there is no public appetite for putting that issue before the court. Alito states in the draft opinion that his reasoning was not meant to apply to any rights besides abortion. But other experts are skeptical the court will hold to that.

Looking for more? Check out Mosh's Instagram Live Tuesday night with government teacher and Supreme Court watcher Sharon McMahon where we answered dozens of questions.

~ Mosh & Jill

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Now to our interview with CBS News Chief Legal Correspondent Jan Crawford. Crawford wrote the NY Times best-selling book "Supreme Conflict: The Inside Story of the Struggle for the Control of the United States Supreme Court." She's been covering the court for three decades for the Chicago Tribune, ABC News, The NewsHour With Jim Lehrer on PBS and now CBS News.

[We spoke to Jan Crawford in January 2022 just after the court heard the Mississippi abortion case. This interview has been edited for length and clarity.]

Mosheh Oinounou: What did you see during the arguments of the Mississippi abortion case that potentially gives you a sense of how this could play out?

JC: I thought the arguments indicated that the court is going to not only uphold that Mississippi law, which bans abortion at 15 weeks, but potentially overturn Roe v. Wade, which would mean that the states could decide whether they wanted to ban abortion or whether they want to greatly restrict it. It becomes a political issue. And so you will have states like Mississippi and probably 10 or 12 others who will either ban or certainly greatly restrict abortion, then you'll have other states like New York, California and Illinois, the blue states, that will either allow even more access to abortion. It'll be up to them whatever they want to do whatever the political process will support.

So I did feel at the end of those arguments that this court might overturn Roe. And the reason is that when people say Roe is settled law, if you think about some of the decisions the court has reached where they've overturned precedent, like say gay rights, those decisions have been widely accepted by the public and they're not controversial at all. Roe, on the other hand, has been controversial and remains controversial.

The Mississippi ban of 15 weeks is a ban that the polling shows is a time frame that most Americans think is entirely reasonable. So if they were to allow that ban, the question is, where are they going to draw the line? That's a really hard question to answer. That's why I think it's hard to uphold the ban without overturning Roe and the subsequent case, Casey, (the) 1992 decision which basically says states cannot ban abortion or pass laws that put an undue burden on a woman's right under the constitution to have an abortion before the fetus is viable, which is now 22-23 weeks.

So 15 weeks is a big jump back from that. But the number of abortions and Americans views on abortions after 15 weeks is a very low number. Polling shows that most Americans think that 15 weeks would be good enough. But it's hard to uphold that under the legal framework of Roe v. Wade.

MO: Why not split the difference then-- and go with 15 weeks but not go so far as to completely overturn?

JC: Some legal commentators are speculating that that's what the Chief Justice is trying to do. And I thought from his questions he's clearly looking for a way to uphold the Mississippi law and allow that 15-week ban, but not overturn Roe. I thought the other five were like-- 'You can't, you cannot hold Roe.'

Roe says that there's no bans or great restrictions on abortion before viability, and that's not 15 weeks. The interesting thing about Justice Barrett joining the court and becoming that sixth conservative voice on these cases is that Roberts doesn't have any more power, like he once was the swing vote. Now he's one of six, so his vote is not going to matter. So if he thinks that the court shouldn't overturn Roe, but the other five do, he loses.

MO: So there's the three liberals plus Roberts puts you at four, then you've got five other conservatives. Do you see a scenario-- or is there a likely candidate from your perspective-- based on previous comments or previous rulings, any of those other five potentially come over?

JC: No. I don't. The only one we know how they'll rule on abortion is Justice Thomas. He's the only one that has been on the court to decide that issue in ‘92, he would have overturned it then with Antonin Scalia, with William Rehnquist. But I thought from Justice Kavanaugh's questions he suggested that basically the court is going to be neutral on abortion. We are not going to say that you can have a ban or you can't have a ban. We're stepping out of this. This is going to be a political decision, it's going to be in the political process. And I didn't get the sense from Justice Barrett that she thought that that was unreasonable either. But again, I am not privy to these discussions behind the scenes.

MO: What's the legal rationale in simple terms as to why conservatives have always been opposed to or don't believe that abortion is constitutional?

JC: That's because it's not in the Constitution, that's what they say. You know there's no right to abortion in the Constitution, and they don't believe that it's the role of the court to make up new constitutional rights. There's a political process for constitutional amendments, and so they take a much more cabined approach to constitutional interpretation, that it should reflect the views more of the framers and that should be how we interpret it. Because otherwise, and again this is what conservatives believe, courts are just how judges express their policy preferences. Unelected judges, unaccountable to the public, potentially on the court for their lifetime, the rest of their lives, will be making policy decisions that have no way of being reviewed-- because they're outside the political process. That's their argument for why it's dangerous to try to read into the constitution.

MO: And so if you're an abortion rights supporter and you're concerned about the potential for Roe v. Wade going down, what are their avenues moving forward at a state level and federal level?

JC: It's already started as I'm sure you've seen. I mean we already have seen more blue states passing laws that guarantee a woman's right to abortion and ensuring that in state constitutions.

MO: And because it's the state level, that'll be allowed regardless of what the Supreme Court says, because it's state?

JC: Right, if the court says 'we're getting out of this issue, you guys do what you want' then that'll be interesting because then politicians will have to make real decisions. Right now you see a lot of politicians, particularly Republicans, who will take extreme positions on abortion to pander to certain aspects of the electorate. And there's no cost to them because they know the Supreme Court will strike that law down. So they can kind of pander on the issue. Well, that will stop. They won't be able to do that anymore, their votes will be real all of a sudden. If they say 'I'm voting to ban abortion' and you're in Georgia and you think 'I want to ban abortion because everybody down there this opposes it' well listen, there's a lot of people in Georgia that think that should not be banned. Georgia is not a red state like it used to be, and next thing you know you've got a challenger. I think if the court does this it will really electrify Democratic voters, especially women.

MO: And could Congress do this on a federal level? If the court says get out, can the House and Senate pass a federal law saying abortion is legal?

JC: Yes, and there's certainly efforts to do that right now. But Congress isn't touching it.

MO: Until they need to.

JC: Or maybe they won't. The issue of abortion has become so politicized and at times you see people unwilling to take positions on it, or take kind of false positions on it, because they know that the courts are going to strike it down. The lower courts have to follow whatever the Supreme Court. Right now you've got a Democratic Senate and House, a Democratic president. You would think if you're worried about abortion rights, now would be the time to pass that, but it has no momentum right now.

To follow more of Crawford's reporting, check out her coverage for CBS News. Here is her latest analysis on Tuesday.

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⭐️ This Wednesday edition of Mo News would typically only be available to premium subscribers. However, because of the high interest in the Supreme Court's expected decision on abortion, we're PAUSING our paywall and making our premium edition available for ALL subscribers. If you'd like to support our work, sign up for our premium content HERE. **

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