Capehart and Gerson on the end of Roe v. Wade

Washington Post associate editor Jonathan Capehart and Washington Post opinion columnist Michael Gerson join Judy Woodruff to discuss what the Supreme Court’s decision to overturn abortion rights means to the nation in a moment of great political and cultural discord.

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  • Judy Woodruff:

    The Supreme Court's decision to overturn Roe v. Wade has sent Washington into overdrive, as observers consider the political and cultural ramifications.

    That brings us to the analysis of Capehart and Gerson. That is Jonathan Capehart, associate editor for The Washington Post and his colleague at The Post opinion columnist Michael Gerson. David Brooks is away.

    And we welcome both of you to the "NewsHour" on this Friday night.

    And, Jonathan, I'm going to start with you with a story that is all over the news today. And that is the Supreme Court. What do you — what is your reaction?

  • Jonathan Capehart:

    Well, I think I worked out my not rage, but my alarm — alarm is the right word — when the leak of Justice Alito's draft opinion overturning Roe vs. Wade was leaked last month. And in reading it, I saw, Roe is being overturned, but a bunch of other rights to privacy would be weakened if Roe were overturned.

    With the decision out today, it hews closely to that draft opinion. And I'm sitting here still trying to process what it means to live in a post-Roe world, because we have got states that had trigger laws that, the moment Roe was overturned, abortion was made illegal.

    And I — my heart goes out to women who now have — who live in states where their right to choose their own reproductive health care is no longer their decision. And I feel so — and my heart goes out to those families, because this is — it's not only a personal decision for the woman, for the person who's pregnant. It's a decision that impacts an entire family.

    There are men out there who are going to be dealing with this as well. So, in the hours that we have been trying to digest all this, I'm still trying to get my head around what this means. But this much, I know. It's not good.

  • Judy Woodruff:

    Michael, your thoughts?

  • Michael Gerson:

    Well, a similar reaction in one way.

    I mean, I come from a pro-life background. But this — I find my views very mixed today. We are a nation with an escalating culture war. And placing this issue right now in the center of our national debate in states across the country is going to be deeply divisive. It's a terrible time to talk about this set of issues.

    I also thought that there were a couple of good points made in criticism in the decision itself. One of them is by Roberts, the chief justice of the Supreme Court, that said…

  • Judy Woodruff:

    Criticizing the main opinion.

  • Michael Gerson:

    Main opinion.

    He concurred, but criticized. It's a very prickly opinion, essentially saying: I would have done it differently. This — you did not need to overturn Roe completely in order to answer this Mississippi case.

    He actually — he said that this ruling was a ruling all the way down to the studs. And that was — to see that kind of dissent within the majority was kind of interesting. And then there was the — I thought the dissent made the decision — or made the point very well that Alito says in the decision that this does not affect other cases that have to do with sexual privacy.

  • Judy Woodruff:

    Right.

  • Michael Gerson:

    But he doesn't make a particularly good argument about why his reasoning would not, OK?

  • Judy Woodruff:

    Yes.

  • Michael Gerson:

    And there could be good reasons. Maybe John Roberts could write them, OK?

    But the reality is that that was left a little bit blank. And it — I think it's going to cause some consternation.

  • Judy Woodruff:

    What do you think this says, Jonathan, about the court, what we're looking at here?

  • Jonathan Capehart:

    I mean, I think the credibility of the court is now more on the line than ever. I hesitate to say that the legitimacy of the court is in question or at risk, because that's just — that's a step too far.

    But when you read this decision, and you read the concurring opinions, the legitimacy of the court is going — I think will be eroded.

    And to Michael's point about Alito saying, don't worry, don't worry, this only applies to abortion, he made that same argument in that draft opinion. And that is what raised my alarm. And just to put it — just to sort of be an exclamation point on Alito's don't worry, don't worry, you have the senior most justice, Justice Clarence Thomas, putting in writing: "In future cases, we should reconsider all of this court's substantive due process precedents, including Griswold, Lawrence, and Obergefell."

    Obergefell, the right to same-sex marriage, Lawrence that guaranteed a right to privacy to same-sex intimate contact, Griswold, right of married couples to have access to contraception.

  • Judy Woodruff:

    Contraception.

  • Jonathan Capehart:

    These are — these…

  • Michael Gerson:

    Right.

  • Jonathan Capehart:

    All of these decisions, they're grounded — Roe is their foundation.

    And so now, as an out gay married man, I'm now faced officially with the prospect of my marriage being rendered illegal.

  • Judy Woodruff:

    Do you think this decision tells us something new about this court?

  • Michael Gerson:

    Well, it certainly — given the frustration of the chief justice, it tells us this is not the Roberts court, OK? This is someone else's court. It's — the leadership is being shown by the five justices themselves, not including Roberts.

    And that's an awkward position for him to be in. But even he — I mean, this is a 6-3 decision — has accepted the basic point here, which is the point of the conservative legal revolution over the last several decades, which is, if the Constitution doesn't say it, OK, then we cannot create rights, OK?

    And there is an additional element here that I want to say, which is the point that — one point that Alito makes is that there are actually two groups with visions of human rights at stake here, OK, not just one, OK?

    And one of those groups, the pro-life people in America, were told by Roe v. Wade, you can never win, OK?

  • Judy Woodruff:

    Yes.

  • Michael Gerson:

    They were essentially disenfranchised, at least in their own minds.

    And that was also a source of division in our country for 50 years. So it's a perilous decision whichever way you go, but I think that there are some arguments to be made in favor of it.

  • Judy Woodruff:

    Perilous, Jonathan.

    And do you see it having a political effect in this already fraught election year?

  • Jonathan Capehart:

    Oh, absolutely.

    At a time when Democrats are facing headwinds, historic headwinds, in terms of trying to maintain control of the House, maybe even maintaining control of the Senate, a Democratic Party base that might be frustrated because criminal justice reform wasn't done or voting rights wasn't done, but now we're looking at a woman's right to choose gone, looking at other rights potentially on the chopping block.

    This is a galvanizing issue, I think, for Republicans and Democrats, but particularly for Democrats, because — or folks who are in favor of abortion rights, because now they have lost something.

    And the only way to get it back is to put more Democrats in the House, put more Democrats in the Senate, so that they can codify the right to abortion by law. That's the only way that's going to be done now.

  • Judy Woodruff:

    Michael, do you see this energizing Democrats more than Republicans?

  • Michael Gerson:

    Probably, for that very reason.

    I mean, this is a right, withdrawn, OK? It doesn't mean that abortion is illegal all over the country, but it means that it's illegal in some places. And I think that it's likely to concern Democrats because they have lost something. I think that that's exactly right.

    The problem here, of course, though, not to get too much into the politics of it, is the outcome of midterm elections is most directly tied to the popularity of the sitting president. That's what Gallup runs their model, is that, if you're below 50 as president, you're going to lose more than 30 seats. That's the history, OK?

  • Judy Woodruff:

    Right.

  • Michael Gerson:

    Does this make President Biden more popular? I'm not sure that that's true.

    I mean, he's hardly a culture war fighter on these issues. He gave a speech today that had some of those elements. But I — so I think there can be an effect on the Democratic base, but this is still a very tough election for Democrats.

  • Jonathan Capehart:

    Although President Biden is not on the ballot.

    There are individual members of the House, folks in the Senate who are running. And they can run and say, if you want to — you want to get these things back, if you want to fortify the rights that we have, you must elect Democrats, because they are the ones who are going to do whatever it takes, if they have the big enough majorities, to codify abortion rights, and protect marriage equality and protect the legal right to contraception.

  • Judy Woodruff:

    And we're already seeing candidates around the country bringing this up, saying today, we're going to take this to the voters. We're going to talk about this.

    Michael, I want to — we're talking about the court. Let's talk about the other decision that the court handed down this week, negating New York's regulations on who can carry guns out in the open. That came down from the court at the same time Congress has now passed the first — any — anything close to gun control legislation in decades.

    Where are we on guns in this country, given all that?

  • Michael Gerson:

    Well, Americans have every right to be confused with the courts coming down strongly in favor of state legislatures when it comes to abortion and undermining a 100-year-old law in the New York legislature. It was a perfectly reasonable law, OK?

    But it relates to the earlier question. I do think that there is a concern on Roberts' part of a judicial activism on the right, OK? So whatever the favored right is, the right has found ways to do this.

    But I also don't want don't want to downplay what the Congress did on this measure.

  • Judy Woodruff:

    Yes.

  • Michael Gerson:

    This was the first of its type in 30 years.

  • Judy Woodruff:

    Right.

  • Michael Gerson:

    And the reality is that it was a demonstration, to some extent, of the way Congress should work.

    I mean, you make compromises, and you have incremental reform. That's what American democracy does, OK? And so I — I think there's a lot to praise there. And that included some Republicans, even though they're, a lot of them, not coming back or not running in the next year.

    So — but it was, I think, well done.

  • Judy Woodruff:

    But you do have — not but — and, Jonathan, you have got the court going in one direction guns and the Congress, in this instance, going in another direction.

  • Jonathan Capehart:

    Well, the Congress is reacting to real-time horrors, Uvalde, Buffalo, plus the 200-plus other mass shootings that have happened in this country since the beginning of the year.

    And so the fact that they were able to do something, as incremental as it is, it's the first time it's been done, as Michael said, in 30 years. And so this should be celebrated, and should also be recognized as an opportunity. If Congress shows the ability to pass something on guns, they can do it again.

    And so — but, when it comes to the court's decision, it's another thing that worries me, this idea of a reliance on ordinary self-defense. Ordinary self-defense is very subjective. And when you are a person of color, do you get the presumption of self-defense? We have seen many instances where the answer is no.

  • Judy Woodruff:

    A lot still to interpret on that one.

  • Jonathan Capehart:

    Yes.

  • Judy Woodruff:

    Jonathan Capehart, Michael Gerson, thank you for being with us on this historic evening.

  • Michael Gerson:

    Sure.

  • Jonathan Capehart:

    Yes, thank you, Judy.

  • Judy Woodruff:

    Thank you.

  • Michael Gerson:

    Thank you.

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