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A day after a Supreme Court document on abortion became public we look at the legal and political implications. Marcia Coyle, chief Washington correspondent for the National Law Journal, and Mary Ziegler, a Florida State University law professor and author of "Abortion and the Law in America," join Judy Woodruff to discuss.
For more on the impact of this disclosure, both inside the court and around the country, I'm joined by Marcia Coyle, chief Washington correspondent for "The National Law Journal". And Mary Ziegler, a Florida State University law professor and the author of "Abortion and the Law in America."
Welcome back to the "NewsHour" for both of you.
And, let me start with you, Marcia. Give us the sense of the status of this, this is an opinion that was written some time ago. It is subject to being changed, before the court actually issues an opinion. Help us understand what we have here.
Marcia Coyle, The National Law Journal:
OK, Judy. The first thing I looked at when I saw the draft opinion was that it was marked first draft. It also said on the first page of the opinion that it had been circulated to all of the justices on February 10, the court held oral arguments in this abortion case out of Mississippi in December.
So this is obviously, as a first draft, a very early opinion. It does not mean that it may not last until the final decision. But I will tell you this, that during the Supreme Court's deliberative process, first drafts often go through multiple drafts, not unusual for 20 drafts or more, and much can change during the drafting process.
So we really won't know what the court is actually going to say until the final decision comes out.
And, Mary Ziegler, lets step back a moment. Remind us how many people get abortions in this country every year, who are they, and how could that be affected if this is the decision the court hands down?
Mary Ziegler, Florida State University College Of Law:
The abortion rate has been declining, but it is still roughly, estimates about one in four people of reproductive age have abortions at some of point in their reproductive lifetime, which is a lot of people. (INAUDIBLE) would be affected. We estimate somewhere between 20 and 26 states will outlaw most or all abortions of the Supreme Court reverses Roe in a pretty short order.
There are a combination of what we called "trigger laws", which have some kind of provision that will make the law automatically go into effect if Roe is gone, and there are zombie laws, right, laws that were criminal, that were on the books before Roe that have been kept on the books and could spring back to life if Roe is gone. And those will affect people across large swaths of the South and Midwest.
And as to which of those people are the most likely to be affected, we know that people of color have abortions at disproportionately high rates and we would imagine that criminal abortion laws, if they are enforced against patients as well as doctors, would disproportionately be enforced against people of color because those are people in the most heavily policed communities.
So, Mary, just continuing with that line of thought, you've done some work looking at what would happen right away on the first day after the Supreme Court were to hand down a decision like this. According to the pro-abortion rights group, the Guttmacher Institute, they say there are 26 states poised to restrict abortion right away. What would that look like?
Well, there's the messy process of who's going to certify that Roe v. Wade has been overturned. If the final Supreme Court opinion resembles what we see in the draft, it won't take a genius to figure out that Roe has been overturned, that some states require the attorney general, for example, to certify that there's been an overturning before a trigger law can go into effect.
In other places, the process will be messier. There's constitutional litigation, state constitutional legislation in Michigan, for example, which is one of the states in the Guttmacher list. So, there may be back some back and forth before these criminal laws go into effect. But we imagine if the court is this direct as it seems to be in this draft, that there will be little drama in most places that abortions will be criminal in short order.
And, of course, Mary, as we know, and as we've been discussing, a lot of politics here. This is a deeply divisive and political issue. I just want to cite the latest PBS NewsHour/NPR/Marist poll. This was just last from last week. It shows Americans by an 11-point margin think Democrats do a better job handling the issue of abortion. But we would remind everyone that back in February, just 3 percent of people said this should be the top issue.
So, can we project ahead to what difference this could make in elections this year?
I think it's really reconciling those two polls, because we have reason to believe that large numbers of independents and Republicans don't want to Roe v. Wade overturned, while they may not be perfectly comfortable with lots of restrictions on abortion, they may not even be comfortable with the morality of abortion, they are not excited about the prospect of Roe being overturned, that abortion being criminalized. The question for Democrats is whether they can translate that into votes and whether voters when the moment arrives make abortion a priority.
That 3 percent number is probably lower than it would be in a world with no Roe v. Wade, but whether it's high enough to translate into anything concrete for Democrats in 2022 or 2024 really remains to be seen.
And, Marcia, I want to come back with you to the justices who sided with Justice Alito in this early draft of the opinion. They were all Trump appointees. They voted with him — again, it's an early draft — which would in effect overturn Roe. But lets go back and listen to what these three justices, that's Justice Amy Coney Barrett, Justice Kavanaugh, and Justice Gorsuch, said when they were going through their confirmation hearings.
(BEGIN VIDEO CLIP)
Judge Amy Coney Barrett, Then-U.S. Supreme Court Nominee:
Judges can't just wake up one day and say, I have an agenda, I like guns, I hate guns. I like abortion, I hate abortion.
Judge Brett Kavanaugh, Then-U.S. Supreme Court Nominee:
One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years.
Judge Neil Gorsuch, Then-U.S. Supreme Court Nominee:
That's the law of the land. I accept the law of the land, Senator. Yes.
(END VIDEO CLIP)
So, Marcia, listening to that, how does that square with what you see here?
Well, Judy, I think every Supreme Court nominee who goes before the Senate judiciary committee claims that Roe and Casey are settled law. And I think it's time that we all realize that that really is meaningless. Yes, they are settled law, and so are many other Supreme Court decisions. But it does not mean that they can't be overruled.
They are a constitutional based decision which gives the court more liberty in terms of overturning advantage does a statutory decision. So, settled law, to me, really means nothing.
And last question for you, Marcia, just the very fact, the astonishing fact of this leak. This is rare. It doesn't happen very often.
What do you think it means and what do you think it means for the court going forward?
That's good question, Judy. I think there are two things that we can look at here. One is what does it mean for the court going forward? Well, I think the leak itself probably means the court is going to be doing some internal rethinking about its processes, in a way to ensure greater secrecy.
And how that affects other ability to deliberate and communicate with each other, I don't know. We'll just have to wait and see.
But it also is a question of how the leak and the ultimate decision affects the public's perception of the court's legitimacy, which you know a number of the justices recently have been very concerned about the court's legitimacy in the eyes of the public. And the court's approval rating has been declining.
This is — if it stands, this is a decision that overrules precedence that the majority of Americans say don't overrule. So, that has to have some kind of impact, and we'll just have to wait and see what that means for the court itself.
Well, on this today when we are digesting a big piece of information, we want to thank both of you. Marcia Coyle, Mary Ziegler, thank you.
Thanks for having us.
Thank you, Judy.
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Matt Loffman is the PBS NewsHour's Deputy Senior Politics Producer
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