Former Pennsylvania attorney general who argued against Roe reflects on Supreme Court leak

The leaked Supreme Court draft opinion shows justices appear poised to overturn Roe v. Wade, which would result in the biggest change to abortion rights since the 1992 case Planned Parenthood v. Casey, which reaffirmed the right to an abortion with restrictions. Former Pennsylvania Attorney General Ernest Preate, who argued that case and asked the court to overturn Roe, joins John Yang to discuss.

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  • Judy Woodruff:

    It's been a week since a leaked draft of a Supreme Court opinion showed the justices do appear poised to overturn 50 years of precedent on abortion access.

    And with the rest of the court's term measured in weeks, advocates on both sides are turning up the pressure.

    John Yang has more.

  • John Yang:

    Judy, following protests outside the homes of conservative justices, Congress is considering a bill to provide security for their families.

    Last night, dozens of people marched outside the home of Samuel Alito, the author of the leaked draft opinion that could result in the biggest change to abortion rights since the 1992 case Planned Parenthood v. Casey. That decision reaffirmed the right to an abortion, while allowing some restrictions.

    At the time, Ernie Preate was Pennsylvania attorney general. And he argued that case, asking the court to overturn Roe.

    Mr. Preate joins us now.

    Mr. Preate, first of all, I want to ask your reaction to the leaked draft opinion from last week.

    Ernie Preate, Former Attorney General of Pennsylvania: It's a terrible thing.

    It's — it affects the integrity of the court. Listen, I have been practicing over 50 years, and I have never seen a draft opinion leaked at any court level, the local courts, state courts or national courts. It just doesn't happen. So this really has to be investigated and investigated thoroughly.

  • John Yang:

    And I want to stress.

    You're saying — when you say it's a terrible thing, it's the leak itself, not the outcome, the proposed outcome in the draft?

  • Ernie Preate:

    Well, there's two things.

    One is the leak, which is bad. And the second thing is the opinion, whatever it's going to be. I don't know what the opinion is going to be. We still don't have the official opinion of the court yet. I think it's a little speculative to say that it's going to be just one way or the other.

    But the fact of the matter is that we have seen some indications from the draft, which is a February 10 draft, that there's a tendency there to overturn to Roe. Now, the actual vote doesn't occur until the end of June. That's when the — that's when the opinion is released, the actual opinion to the court is released.

    So let's calm down a little bit and let's wait to see what they say.

  • John Yang:

    And your experience in Casey is, you know that there can be a change from the first draft opinion.

  • Ernie Preate:

    Absolutely. The chief justice changed his mind at the last minute.

    We were going to have all of Pennsylvania's statute upheld, but the chief justice changed his vote in the last day or two before the opinion was announced. So, come on, folks. Let's relax. Let's see what happens.

  • John Yang:

    Do you think — do you think — how likely do you think it will be that the outcome of this opinion will change, that they will they will not overturn Roe?

  • Ernie Preate:

    Well, I don't know what to — to speculate on that.

    I argued for the overturning of Roe in 1992, when I have represented Governor Casey and the commonwealth before the court. And the governor sat right beside me — right behind me, I should say. So it's not unheard of that — where people are asking for overturning Roe.

    We asked for it in the 1992 case. We didn't get it. What we got was the gutting of Roe, legally gutting, because it took the strict scrutiny standard and eliminated, put an undue burden standard for review in. And it took the trimester system out and put the viability standard in, which is what this is all about. And Dobbs is the viability standard.

    The viability standard there was 23, 24 weeks. You can get to viability at maybe 17 weeks. You have Mississippi saying 15 weeks. So, that's what this battle is over.

  • John Yang:

    Yesterday, we interviewed your — the opposing counsel in Casey, Kathryn Kolbert.

    I want to play a little bit of what she said and get your reaction.

    Kathryn Kolbert, Argued Planned Parenthood v. Casey Before Supreme Court: We have had five decades of support for Roe vs. Wade. And then entire generations of women in this country have relied upon this decision, and, frankly, ordered their lives. Millions of women have obtained abortions as a result of Roe.

    And all of that is being rolled back because five individuals decided, in my view, willy-nilly, to change the law. And I think that is a real hit on the institutional integrity of this court.

  • John Yang:

    What do you say to that, Mr. Preate

  • Ernie Preate:

    Well, the case hasn't been overturned yet. Let's wait and see what the actual opinion of the court is going to be.

    But the fact of the matter is, there's always been a contest as to whether or not Roe was constitutionally properly decided from its inception, and whether or not there is a right to life or right to abortion. And the only thing that I know in the Constitution is, there's a right to life. I don't see written in the Constitution a right to an abortion.

    But that's going to be up to the states. If this opinion holds, it's not the end of abortions. It's the transference of the regulation of abortion to the states. And states are already doing it. New York, California, Virginia and others already putting forth state statutes, or have already put them forward, that regulate or allow abortions up until even the moment of birth.

    So it's not the end of the world. But — and the other thing that you have to recognize here is that we have got new science. The new science is that we can have the viability of the fetus that start at 17 weeks, maybe 15 weeks. We also have the pill, abortion pills, which we didn't have then and which are now — almost half the abortions in America are done by pill.

    So, let's take a look at what we have got. And I think we ought to start focusing on, let's get better care for women and children once the child is born. Let's have better instructions on what can we do about avoiding pregnancies, what can we do about taking care of women during pregnancies, and, of course, after pregnancies.

    We just wasted hundreds of billions of dollars in the PPP program, just willy-nilly threw it away. Wouldn't it be wonderful to take $100 billion of that and use it to help people and keep families together and safe and healthy.

  • John Yang:

    The argument — you talked about rights not seen, not found in the Constitution, that the Supreme Court has ruled in the past that they do exist.

    Do you think Justice Alito's argument should apply to some of those, marriage, intimate sexual relations, contraceptive — purchasing contraceptives, that sort of thing? Do you think that — this argument should apply?

  • Ernie Preate:

    No, I don't.

    Look, let's focus on one at a time. There was a debate as to whether or not there was a right. There has been a decision made in 1973 that there was a right. There has been a contest ever since that there wasn't a right. So let's wait and see what the Supreme Court says on the case itself.

    And then we will take it from there as to whether it's going to apply to any other thing. I doubt it. I doubt it. But I don't want to get into that speculative game and hysteria. Let's just wait until the end of June, when the decision comes down, and see what the court says.

  • John Yang:

    Former Pennsylvania Attorney General Ernie Preate, thank you very much.

  • Ernie Preate:

    Thank you.

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