>> WELCOME BACK.

THIS PART OF THE SHOW USED TO BE KNOWN AS ASK ALVIN, BUT IT'S NEXT UP.

WE HAVE TWO DISTINGUISHED GUESTS WITH US TONIGHT, BOTH ATTORNEYS.

WE'LL START WITH NINA McDONNELL AND YOU ARE -- YOU'RE AN ATTORNEY, I UNDERSTAND, SPECIALIZING IN SOMETHING INVOLVING BIG WORDS, SO -- >> I PRACTICE APPELLATE AND POST CONVICTION RELIEF LAW, SO CRIMINAL APPEALS AND THEN ATTACKS ON -- COLLATERAL ATTACKS TO CONVICTIONS BASED ON TYPICALLY INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

>> THOSE ARE BIG WORDS.

AND BEVIS SCHOCK, KNOWN FOR HIS SHYNESS AND -- SERIOUSLY, A CIVIL RIGHTS ATTORNEY AND WELL-KNOWN ATTORNEY IN TOWN.

HOW WOULD YOU DESCRIBE MY INTRODUCTION?

>> I'M IN GENERAL PRACTICE, SOLO, SO I DON'T CARE WHAT THE BOSS THINKS BECAUSE I'M THE BOSS.

AND I DO A LOT OF CIVIL RIGHTS CASES.

I'VE REPRESENTED A LOT OF PEOPLE OF ALL WALKS OF LIFE AND I GET UP IN THE MORNING AND I JUMP ON THE ELEVATOR WITH HAPPINESS.

>> ALL RIGHT.

WELL, THIS WEEK THERE WAS, OF COURSE, BOMBSHELL NEWS OUT OF THE SUPREME COURT, THE U.S. SUPREME COURT FOR A COMBINATION OF SAMUEL ALITO, THE JUSTICES' OPINION THAT WOULD APPEAR TO FORESHADOW THE END OF ROE V. WADE AND, OF COURSE, THE LEAK OF THAT OPINION WHICH WAS, IF NOT UNPRECEDENTED, EXTRAORDINARILY UNUSUAL.

WE'LL START WITH YOU, BEVIS.

WHAT WAS YOUR REACTION TO THE EVENTS OF THE DAY?

>> WELL, TWO THINGS.

FIRST, THE LEAK MIGHT HAVE COME EVEN FROM ONE OF THE JUSTICES.

SO WE DON'T HAVE ANY IDEA WHO LEAKED, BUT LIKE -- AS YOU SAID, IT'S UNPRECEDENTED.

I KNOW A LITTLE BIT ABOUT THESE CLERKS.

I HAD CLASSMATES WHO BECAME CLERKS AT THE SUPREME COURT AND SWORE NEVER TO DO ANYTHING LIKE THAT.

NOW, THERE'S ALSO THE POSSIBILITY THAT THE PIECE OF PAPER WAS ON A DESK AND A WORKER AT NIGHT WHO WAS SUPPOSED TO BE CLEANING UP SAID I THINK I'LL PUT THAT IN MY POCKET.

I MEAN, ONE NEVER KNOWS, RIGHT?

AN ADMINISTRATIVE PERSON, BUT IT IS -- THE IDEA OF THE COURT IS THAT THEY CAN ARGUE WITH EACH OTHER AGGRESSIVELY AND THEN FINALLY THEY SAYING OKAY, I CAN'T AGREE WITH YOU, I'M WRITING A DISSENT.

THEY WRITE THE DISSENT AND THESE ALL RELEASED ON ONE DAY.

WHEN THIS DIDN'T HAPPEN, IT STIRRED EVERYTHING UP.

YOU WANT TO DO INTO THE MERITS OR SHOULD WE DO THAT IN THE NEXT ROUND?

>> WE'LL DO THAT IN THE NEXT ROUND.

>> I WAS SHOCKED AT FIRST AND THEN DISAPPOINTED.

I THINK THAT THE RELEASE OF A DRAFT IS REALLY GOING TO HAMPER WHAT I THINK IS IMPORTANT INNER WORKINGS OF THE COURT, WHICH IS ALLOWING PEOPLE TO DECIDE THAT THEY WANT TO CHANGE THEIR MIND ABOUT SOMETHING OR EDIT THINGS.

IT WAS ALSO SOMETHING THAT I SORT OF EXPECTED IN TERMS OF THE OPINION, NOT THE LEAK.

I DO AGREE IT COULD BE ANYBODY AND IT WILL BE INTERESTING TO SEE IF A INVESTIGATION ACTUALLY GIVES US AN ANSWER.

>> FIRST, I HOPE I NEVER NEED YOUR SERVICE, OKAY?

[ LAUGHTER ] >> ME TOO.

>> AND TWO, ALL RIGHT, MY FIRST THOUGHT IS, OKAY, IF YOU EXAMINE WHAT COULD BE OVERTURNED, I GUESS WE DON'T KNOW THAT FOR SURE, BUT WHAT'S NEXT?

I MEAN, THAT PESKY 13th AMENDMENT?

YOU KNOW, IF A STATE DECIDED, HEY, WE DON'T THINK PEOPLE SHOULD BE ABLE TO DRINK OUT OF THE SAME WATER FOUNTAIN, COULD A SUPREME COURT COME IN AND SAY, OKAY, THE MAJORITY SAYS THAT'S THE WAY IT'S GOING TO BE, A STATE CAN DECIDE THAT.

IS THE FATE OF THINGS LIKE THAT IN THE SUPREME COURT'S HANDS?

>> I CERTAINLY THINK THAT THIS OPINION, IF IT STANDS, WILL AND COULD EASILY LEAD TO A DEGRADATION OF RIGHTS TO CONTRACEPTION, IT COULD AFFECT GAY MARRIAGE.

ANY OF THOSE RIGHTS THAT ARE NOT ENUMERATED WITHIN THE ACTUAL WORDS OF THE CONSTITUTION, RIGHTS THAT ARE FOUND WITHIN THE LIBERTY GUARANTEED BY THE 14th AMENDMENT.

ANY OF THOSE DECISIONS I THINK COULD VERY EASILY BE ON THE CHOPPING BLOCK.

>> I DON'T AGREE WITH THAT.

MY TAKE IS THAT THE WHOLE LEGAL STRUCTURE OF ROE V. WADE WENT LIKE THIS.

WE WERE IN THE MIDDLE OF A HARD CONTROVERSY OVER WHETHER TO HAVE ABORTION LEGAL OR NOT.

NOW, CASUAL EMPIRICISM TELLS ME ABOUT A THIRD OF WOMEN IN THIS COUNTRY HAD AN ABORTION, SO THIS IS GOING THAT'S A GIGANTIC PART OF AMERICAN LIFE.

IT HAPPENS ALL THE TIME AND THAT'S JUST THE TRUTH, BUT I THINK IN RECOVERED, THEY SAID WE HAVE OUGHT THAT STATURE AND WE'RE GOING TO GO IN AND ACT LIKE A LEGISLATURE AND BECAUSE OF OUR INCREDIBLE POWER, WE'LL RESOLVE AND HELP AMERICA WITH THIS PROBLEM.

THEY GOT OUT OF THEIR LANES.

MOST PEOPLE WHO ARE THE DETACHED SCHOLARS WITHOUT A GUN -- WITHOUT A STAKE IN THE ABORTION DEBATE EITHER WAY I THINK WOULD AGREE WITH THAT.

THAT IT'S NOT BASED ON THE CONSTITUTION.

IT WAS THE SUPREME COURT ACTING LIKE A LEGISLATURE AND IT'S BEEN CRITICIZED FOR THAT FOR DECADES.

>> WELL, THERE IS THIS MATTER OF STARE DECISIS AND SETTLED LAW AND AT VIRTUALLY EVERY HEARING FOR SUPREME COURT JUSTICE ON EITHER SIDE OF THE FENCE -- AND MAYBE I SHOULD GO TO YOU, MS. McDONNELL, THAT -- WHAT DO YOU THINK ABOUT THE APPARENT INCONSISTENCY WITH ALL THE THINGS SAID AT CONFIRMATION HEARINGS ABOUT RESPECTING PRIOR DECISIONS AND WHAT BEVIS HAS ARTICULATED, WHICH IS A VIEW THAT -- I DON'T KNOW THAT EVERYBODY SHARES, THAT THIS WAS LEGISLATING FROM THE BENCH?

>> WELL, FIRST OFF, I ACTUALLY AGREE THAT ROE V. WADE WAS NOT A WELL-WRITTEN OPINION.

I THINK THERE WERE HUGE PROBLEMS, WHICH IS WHY WE'VE HAD SO MANY PROBLEMS WITH IT.

AS FAR AS THE CONFIRMATION HEARINGS, I THINK IT WAS NAIVE FOR ANYONE TO BELIEVE THAT THE JUSTICES THAT WERE HAND PICKED FROM A LIST PLAYED BY THE FEDERALIST ASSOCIATE WERE NOT GOING TO OVERTURN ROE V. WADE.

NOW, I THINK MAYBE NOT ALL OF THE JUSTICES WOULD GO FULLY, MEANING LIKE NO EXCEPTIONS, BUT AS FAR AS THE CONFIRMATION HEARINGS, WE DIDN'T HAVE CONFIRMATION HEARINGS UNTIL THE FIRST JEWISH SUPREME COURT JUSTICE NOMINEE WAS BROUGHT FORTH, SO THIS ISN'T LIKE -- THERE'S NOTHING IN THE CONSTITUTION THAT SAYS THEY HAVE TO DO THESE INTENSE HEARINGS AND ASK THE JUSTICES ABOUT THEIR OPINIONS.

SO AGAIN, I JUST THINK ANYBODY, SUSAN COLLINS IN PARTICULAR, WAS NAIVE IN BELIEVING THIS WAS NOT GOING TO HAPPEN.

>> I'VE BEEN TO SO MANY SENATE HEARINGS, I DON'T WATCH THEM ON TV.

IT'S A POLITICAL THEATER.

POLITICS IS HOLLYWOOD FOR UGLY PEOPLE, RIGHT?

THEY GET UP AND THE WHOLE FIRST DAY THEY JUST MAKE SPEECHES AND DON'T EVEN ASK THE NOMINEE ANYTHING, AND THE NOMINEE'S GEOMETRY -- GOAL IS TO CRAWL TO THE FINISH LINE HAVING SAID NOTHING.

THAT'S WHAT THEY DOS ABOUT NOTHING SHOULD BE TAKEN SERIOUSLY, IT'S ALL THEATER.

I THINK THOSE HEARINGS -- EVERYONE IN THE COUNTRY KNOWS THEY MEAN NOTHING.

>> AND I HATE TO DO THIS TO YOU, BEVIS, BUT I AGREE WITH YOU.

I KNOW THAT'S NOT SOMETHING YOU WANT TO HEAR, BUT I WANT TO PURSUE THIS.

WHEN YOU TALK ABOUT LEGISLATING FROM THE BENCH, TAKE THE CASE -- THE CAMPAIGN FINANCE CASE.

>> THE ONE I DID?

YEARS AGO?

>> YEAH, THE -- >> THE SUPREME COURT OF THE UNITED STATES, MISSOURI GOVERNMENT.

WE TRIED TO GET RID OF CAMPAIGN FINANCE.

>> RIGHT, BUT ALSO LIKE HOBBY LOBBY, SOME OF THOSE CASES.

>> UNITED -- >> CITIZENS UNITED WAS ARGUABLY LEGISLATING FROM THE BENCH ON THE CONSERVE AT THIS TIME SIDE, BUT WE DON'T CALL IT THAT, RIGHT?

>> THAT'S A DIFFERENT THING.

IT GETS INTO THE NUANCES OF HOW FAR THE FIRST AMENDMENT CAN GO.

WHAT THEY DID IN ROE WAS, THEY SAID THE CONSTITUTION DIVIDES A PREGNANCY INTO THREE TRY MIDWEST STERS.

THAT'S THE LEGISLATURE'S JOB.

FOR EXAMPLE, HOW MUCH SHOULD WE SPEND ON FOREST PARK?

THAT'S NOT A JUDGE'S JOB.

THAT'S THE BOARD OF ALDERMAN'S JOB.

IT'S DRAWING LINES, AND THE JOB OF THE SUPREME COURT AND ALL THE COURTS IS TO ENFORCE THE CONSTITUTION.

THEY HAVE TO DRAW SOME LINE, BUT WHEN THEY GET INTO DRAWING LINES ABOUT TRIMESTERS IN A PREGNANCY, THEY'RE OUT OF THEIR LANE.

>> SIMILAR ALONG THOSE LINES, OKAY?

ARE THERE ANY OTHER AMENDMENTS THAT THIS ARGUMENT COULD BE TAKEN AND SAID, LIKE THE SUPREME COURT -- LET'S GO BACK TO IT.

I DON'T KNOW WHERE THE COUNTRY WAS AT ON SLAVERY, BUT A WHOLE BUNCH OF IT WAS PRETTY FINE WITH IT.

SO ARE THEY, YOU KNOW, LIKE -- WE'RE JUST NOT GOING TO HAVE IT ANYMORE SO WE'RE GOING TO OUTLAW IT, BUT THEY WERE WRONG, IT SHOULD BE UP TO THE STATES TO DO IT?

>> I THINK THAT THERE IS SOMETHING TO BE SAID FOR THESE DISPUTES, SPECIFICALLY ABORTION, WE'RE TALKING ABOUT -- WE'RE NOT TALKING ABOUT CAMPAIGN FINANCE, WE'RE NOT TALKING -- WE'RE TALKING ABOUT PEOPLE'S BODIES, AND I THINK THAT'S A DISTINCTION THAT HAS TO BE APPRECIATED AND ACKNOWLEDGED.

I WAS READING THE OPINION AND I GOT TO PAGE 5 AND YOU CAN TELL WHAT'S GOING TO HAPPEN IN THE FIRST PARAGRAPH, BUT PAGE 5 SAYS, WE HOLD THAT ROE AND CASEY MUST BE OVERRULED, AND I LET OUT LIKE A [ SHARP INHALE ] I KNEW IT WAS COMING, BUT IT'S STILL SHOCKING TO ME.

I'M ALMOST 40 YEARS OLD.

I WAS BORN HAVING THIS RIGHT AND THEN SUDDENLY I DON'T AND THAT'S A VERY WEIRD FEELING.

MAYBE, YOU KNOW, WHEN YOU'RE TALKING ABOUT SLAVERY, THE SLAVE OWNERS ARE LIKE I THOUGHT I HAD A RIGHT AND NOW IT'S GO TOO.

BUT I DON'T KNOW THAT THAT'S VERY COMPARABLE.

>> WELL, TO FOLLOW UP ON THAT, AND I WAS MAKING THE POINT THAT NOTION OF LEGISLATING FROM THE BENCH CAN GO EITHER DIRECTION.

>> SURE.

>> BUT TO ALVIN'S QUESTION, LET'S TALK ABOUT SOME OF THE OTHER RIGHTS, AND I SHOULD BE PREPARED WITH THE IMPACT LANGUAGE THAT JUSTICE ALITO USED ABOUT AMERICAN TRADITION, WAS IT?

THERE WAS SOME REFERENCE TO THAT WHERE IF IT'S NOT IN THE CONSTITUTION, IT'S NOT IN THE CONSTITUTION, DOESN'T EXIST, INTERRACIAL MARRIAGE ISN'T IN THE CONSTITUTION, GAY MARRIAGE ISN'T IN THE CONSTITUTION AND CERTAINLY PART OF THE TRADITION OF THIS COUNTRY DATING BACK CENTURIES IS ALL THIS ORIGINAL STUFF WHERE PRESUMABLY THEY CUT SOME SLACK BECAUSE MAYBE THE FOUNDING FATHERS DIDN'T KNOW ABOUT THE INTERNET OR SOMETHING.

BUT THE FOUNDING FATHERS WERE NOT DOWN WITH INTERRACIAL MARRIAGE, NOT DOWN WITH GAY MARRIAGE.

WHAT IS TO KEEP THIS COURT FROM TAKING THE SAME LOGIC OR ILLOGIC OF ALITO'S OPINION AND APPLY IT TO THOSE THINGS?

>> SURE, THE CONSTITUTION SAYS CERTAINLY RIGHTS SHALL NOT BE DEEMED TO DENY OR DISPARAGE OTHERS RETAIN BY THE PEOPLE.

THE BILL OF RIGHTS IS NOT EXHAUSTIVE.

SLAVERY OUTLAWED IN THE 13th AMENDMENT AND THE PROTECTION IS IN THE 14th, WHICH IS IN MY OPINION THE OUTCOME OF THE CIVIL WAR IS EQUAL PROTECTION AMENDMENT AND THE OUTLAW OF SLAVERY IN 13.

SO YOU TAKE INTERRACIAL MARRIAGE, WHAT THAT IS INVOLVES IS DIVIDING PEOPLE BY THEIR COLOR OR THEIR HERITAGE AND THAT'S WHAT THE EQUAL PROTECTION LAW SAYS NO.

SO THAT'S WHY I'M NOT AS WORRIED ABOUT THAT.

SO IN OTHER WORDS, AT THE BEGINNING, I MEAN, THE FOUNDING FATHERS, IF SOMEONE HAD TALKED ABOUT INTERRACIAL MARRIAGE, THEY PROBABLY WOULD HAVE BEEN LYNCHED JUST TO TALKING ABOUT IT, AND THEN HERE WE ARE.

WE'VE COME A LONG WAY.

PEOPLE LOVE EACH OTHER, BUT THE GREAT THING ABOUT IT WAS THE CASE THAT RESOLVED IT WAS A COUPLE NAMED LOVING.

MR. AND MRS. LOVING, ONE OF THEM BLACK, ONE OF THEM WHITE.

THEY WON THAT CASE ON THE NAME OF WHO THEY WERE.

BUT I JUST DON'T SEE ANYTHING GOING REALLY IN THAT DIRECTION.

>> GAY MARRIAGE, YOU DON'T -- >> WHAT ABOUT CONTRACEPTION?

IT'S HEDGED IN THE SAME IDEA THAT THERE'S A PRIVACY RIGHT, THAT THE GOVERNMENT SHOULDN'T BE ABLE TO COME INTO OUR BEDROOMS, AND ROE, FOR ALL OF ITS FAULTS, ALSO USED THAT PRIVACY RIGHT.

SO I'M NOT UNDERSTANDING YOUR DELINEATION THAT ONE THING THAT WAS HEDGED IN PRIVACY UNDER THE TERM LIBERTY OF THE DUE PROCESS CLAUSE AND ANOTHER, HOW CAN YOU THINK THAT THAT'S -- THEY'RE NOT GOING TO COME AFTER CONTRACEPTION, FOR EXAMPLE?

>> I BELIEVE THAT THE DIFFERENCE ACTUALLY IS RELIGIOUS.

IN OTHER WORDS, THERE ARE A WHOLE LOT OF PEOPLE WHO BELIEVE THAT A HUMAN LIFE IS AT STAKE AT THE MOMENT OF CONTRACEPTION, SO LET'S LOOK AT IT FROM THE PERSPECTIVE OF THE DEATH END OF LIFE.

WE SAY, OH, CAN DR. KAVORKIAN KILL SOMEBODY BY GIVING THEM AN INTENTIONAL INJECTION BECAUSE THEY'RE SUFFERING?

WE ALL THINK, WELL, NO, YOU CAN'T DO THAT.

SO MAYBE THAT'S -- SOMEWHERE, THERE'S GOD IN THAT.

SOMEWHERE THERE IS AN IDEA OF RELIGION.

NOW, THE PEOPLE -- MY BELIEF IS THE VAST MAJORITY OF PEOPLE WHO OPPOSE ABORTION BASE ON IT A RELIGIOUS BELIEF OF THE SANCTITY OF LIFE DEFINE BY GOD.

THAT'S WHAT I -- AND I MEAN, I THINK THAT'S WHAT THEY THINK REGARDLESS OF WHETHER IT'S RIGHT OR NOT.

IT'S AN UNKNOWABLE THING WHETHER IT'S RIGHT, BUT IT'S A HEARTFELT FEELING AND IT'S, I THINK, COMPLETELY DIFFERENT THAN ANY OTHER ISSUE BECAUSE OF THE BELIEF THAT THERE IS AN ACTUAL HUMAN LIFE IN THE WOMB WHICH IS CREATED BY GOD AND HAS TO BE PROTECTED.

>> BUT JUSTICE ALITO'S DRAFT OPINION SPECIFICALLY TALKS ABOUT -- NOT PERCEIVED LIFE.

POSSIBLE LIFE.

THAT IT'S NOT NECESSARILY GUARANTEED, AND HE QUOTES ROE IN SAYING THIS IDEA.

THAT'S WHY I THINK CONTRACEPTION COULD BE AT ISSUE.

SO THE PEOPLE THAT ARE MOST AGAINST CONTRACEPTION ARE ALSO VERY RELIGIOUS PEOPLE WHO ALSO HAVE THESE VERY WELL-MEANING BELIEFS AND IF WE CAN'T HAVE ABORTION IN THE FIRST TRIMESTER BECAUSE OF POSSIBLE LIFE, THEN WHY CAN'T THAT EXACT SAME REASONING ARE USED TO OUTLAW CONTRACEPTION?

>> I MEAN, I THINK IT COULD BE.

I DON'T THINK IT WOULD BE.

I MEAN, I THINK IT'S DIFFERENT IN KIND.

THE OLD SAW ABOUT IF YOU PUSH AN OLD LADY OUT OF THE WAY OF A BUS AND SAVE HER LIFE, YOU'RE DOING ONE THING, BUT IF YOU PUSH AN OLD HEARD INTO A BUS, YOU'RE DOING SOMETHING ELSE, BUT STILL, YOU'RE PUSHING OLD LADIES.

BUT THERE'S DIFFERENT.

PUSHING OLD LADIES OUT OF THE WAY OF THE BUS IS DIFFERENT THAN PUSHING AN OLD LADY INTO THE BUS.

>> I WANT TO SAY SOMEONE THING, BUT -- >> GO AHEAD.

>> YOU BROUGHT UP RELIGION, PREVIEWING MY COLUMN FOR NEXT WEEK'S RFT.

WHAT DOES -- AND REALLY, WE WANT A FIX IN THE LAW, BUT WHAT DOES ANYONE'S RELIGION -- WHAT BUSINESS DOES IT HAVE IN OUR LAWS?

IN OTHER WORDS, IN MAKING LAWS.

I'M JEWISH.

WHY SHOULD JEWISH -- THE JEWISH RELIGION, AND IT'S NOT AN INTEREST GROUP, IT'S NOT -- IT'S A RELIGION.

IF YOU GO TO THE TALMUD, A HUMAN BEING BECOMES BORN WHEN THE HEAD LEAVES THE WOMB, WHEN IT TAKES A BREATH, WHEN HE OR SHE TAKES A BREATH.

I THINK IT'S EXODUS, THE -- IF YOU CAUSE A WOMAN TO HAVE A MISCARRIAGE, IT'S A CIVIL OFFEN OFFENSE.

IN THE SAME PASSAGE, IF YOU KILL SOMEBODY, IT'S EYE FOR AN EYE, TOOTH FOR A TOOTH, CAPITAL PUNISHMENT.

JEWS DO NOT BELIEVE THAT A FERTILIZED EGG IN THE WOMB IS A PERSON.

THEY DON'T BELIEVE IT.

SO THE QUESTION IS, AND YOU'RE A CIVIL LIBERTARIAN AND SO FORTH, WHY SHOULD JEWISH WOMEN HAVE THEIR LIVES GOVERNED BY THE CATHOLIC CHURCH'S VIEW OF WHEN LIFE BEGINS, WHICH YOU PROPERLY IDENTIFIED AS A PURELY RELIGIOUS DECISION?

WHAT IS THE GOVERNMENT DOING ADJUDICATING THAT RELIGIOUS VIEW?

>> WELL, THAT'S TO ME WHAT THE JOB OF THE LEGISLATURE IS.

SO IN OTHER WORDS, I THINK WE WOULD ALL AGREE THAT A HUMAN LIFE IS A SACRED AND BEAUTIFUL THING.

I MEAN, SURELY THAT'S SOMETHING THAT -- >> WE JUST DON'T AGREE ON WHEN I BEGINS.

>> I HEAR YOU ON THAT.

THAT'S CORRECT.

NOW, THE QUESTION IS HOW DO WE DECIDE?

THAT'S THE HARD ONE.

AND IS IT GOING TO BE BY A JUDGE IN A ROBE OR IS IT GOING TO BE BY PEOPLE WE ELECT?

BECAUSE WE HAVE TO DECIDE AS A SOCIETY.

ONE OF THE THINGS THAT'S INTERESTING ABOUT THESE LAST FEW DAYS IS PEOPLE ARE COUNTING STATES.

MISSOURI IS GOING TO OUTLAW IT, ILLINOIS IS GOING TO KEEP IT.

THAT'S WHAT'S GOING TO HAPPEN, RIGHT?

>> IT'S A TRIGGER LAW IN MISSOURI, YEAH, SO THAT'S WHAT'S GOING TO HAPPEN.

>> THE QUESTION IS HOW DO WE DECIDE.

ONE OF THE THINGS I'M LOOKING FORWARD TO IN IT IS THAT THE STATE LEGISLATIVE RACES ARE GOING TO MEAN SOMETHING.

I MEAN, IT'S -- THESE THINGS ARE GOING TO BECOME SUPER IMPORTANT, AND I THINK THAT'S GOOD.

>> DO YOU HAVE ANYTHING TO ADD?

WHAT MAKES A LEGISLATIVE BODY QUALIFIED TO MAKE THIS DECISION?

>> THAT'S THE BEST QUESTION OF ALL, AND THE ANSWER IS THAT THERE'S NO BETTER WAY.

IN OTHER WORDS, WE HAVE A RIGHT TO HAVE AN ELECTION, WE LIVE IN A REPUBLIC.

OUR CONSTITUTION GUARANTEES EACH STATE A REPUBLICAN FORM OF GOVERNMENT, I THINK MOST OF THEM ARE BICAMERAL.

WHAT BETTER WAY COULD WE HAVE THAN DIVIDING UP THE PLACE INTO DISTRICTS AND ELECTING PEOPLE AND THEY GO UP AND THEY DECIDE?

>> WHAT ABOUT THE FIRST AMENDMENT?

NINA?

I THINK THE FIRST AMENDMENT IS A BETTER WAY, GOVERNMENT SHALL MAKE NO LAW ESTABLISHING THE RELIGION.

WHY SHOULD LEGISLATURES BE MAKING THIS RELIGIOUS DETERMINATION GOOD WHEN LIFE BEGINS?

WHY NOT LEAVE IT TO THE RELIGIONS?

WHAT DO YOU THINK?

>> I DON'T THINK THEY SHOULD.

I THINK IT'S OUTRAGEOUS THAT BODIES CAN DECIDE WHAT I CAN OR CANNOT DO WITH MY BODY.

ONE THING THAT I REALLY WANT TO COME BACK TO, YOU WERE TALKING ABOUT, YOU KNOW, THE COMMON LAW AND THE RELIANCE ON THAT.

I WAS, THERE'S AN APPENDIX A AND APPENDIX B WHEN ALL THE STATE OF CRIMINALIZED ABORTION.

MISSOURI IS THE ONE THAT STARTED IN 1825.

OF COURSE, WE WENT FIRST.

>> OF COURSE.

>> AND EVERY SINGLE STATE AND TERRITORY THAT THAT OPINION MENTIONS AND LISTS, SAVE ONE, ALL MADE THOSE LAWS WEST VIRGINIA WOMEN HAD A CHANCE TO VOTE.

-- BEFORE WOMEN HAD A CHANCE TO VOTE AND IN COMMON LAW, WE WERE PROPERTY, SO THIS NOTION THAT -- I ACTUALLY START WITH A TEXTUALIST VIEW WHEN I'M DEALING WITH LAWS, BUT AT SOME POINT -- >> GLAD TO HEAR THAT.

>> WHEN YOU ARE TALKING ABOUT -- WELL, THE OPINION SAID SOMETHING ABOUT THE 13th CENTURY, YOU KNOW, AND THIS IS WHAT THEY THOUGHT BACK THEN.

BUT I'M LIKE, THERE'S NO WOMEN THAT HAD ANY VOICE IN ANY OF THIS.

>> GREAT POINT.

>> SO NOW WOMEN ARE BEING PLACED IN A POSITION WHERE WE HAVE TO CLAW BACK ANYTHING THAT WE HAD AND JUSTICE ALITO'S DRAFT OPINION ADVISES US OF ALL THE WAYS WE CAN ACCOMPLISH THAT, BUT THE REALITY IS WE ARE COMING FROM A PATERNALISTIC, MISOGYNISTIC SET OF LAWS AND CUSTOMS AND MEN TRYING TO SAY, OKAY, WOMEN, NOW YOU JUST FIGHT IT ALL ON YOUR OWN.

THAT SEEMS VERY WRONG TO ME.

>> OKAY.

SO WE'RE NOW AT THIS POINT IN TIME, OKAY?

SO LET'S -- WE ALL HAD DEBATE CLASS SOONER OR LATER.

YOU MAKE THE OPPOSITE CASE.

YOU REPRESENT, YOU KNOW, A DIFFERENT POINT OF VIEW.

>> SURE.

>> AND IT DOESN'T HAVE TO BE LIKE, YOU KNOW, AS LONG AS THE OPINION WAS.

[ LAUGHTER ] >> SO IF I WERE GOING TO SAY LET'S KEEP THE RULE, I THINK IT WOULD HAVE TO BE ON WHAT RAY SAID, WHAT IS THE STARE DECISIS ISSUE.

THE PROBLEM WITH THAT -- I'M GOING IMMEDIATELY ON THE OTHER SIDE OF IT AND NOT DOING MY JOB AS ASSIGNED, BUT THE COURT OVER THE YEARS HAS OVERTURNED COUNTLESS DECISIONS.

THE BIG GIANT ONE BEING PLESSY VS. FERGUSON, SEPARATE BUT EQUAL.

SO WHEN THE COURT GETS IT WRONG, AND I'LL TELL YOU THAT I THINK COUNTLESS OPINIONS -- CLARENCE THOMAS WILL BE 8-1, HE'S THE DISSENTER AND HE SAYS THIS IS WRONG AND WE SHOULD CHANGE IT, AND NOBODY CARES.

IT'S STARE DECISIS, PEOPLE SAY IT'S BETTER FOR THE COUNTRY TO JUST KEEP IT LIKE IT IS.

THE ARGUMENT -- AND I THINK IN SOME OF THOSE, EVERYBODY ON THAT COURT KNOWS IT WRONG.

THEY GOT IT WRONG IN 1940 OR WHATEVER IT WAS, BUT WE HAVE TO LEAVE IT IN ORDER TO KEEP STABILITY IN THE NATION, WHICH IS INCREDIBLY VALUABLE.

AND THAT'S WHAT'S VALUABLE HERE.

I CAN MAKE ANOTHER POINT.

WE'RE GOING TO HAVE ABORTION.

THAT'S WHAT'S GOING TO HAPPEN AND WHEN I TALK ABOUT ONE IN THREE WOMEN HAVING HAD AN ABORTION, I DON'T KNOW IF THAT'S RIGHT, BUT I DON'T THINK IT'S WAY WRONG.

AND I'M DOING THAT STRICTLY ON THE BASIS OF CASUAL EMPIRICISM TALKING TO PEOPLE I KNOW.

>> OKAY, I GOT TO PUT YOU ON THE SPOT TOO.

IF YOU GOT TO MAKE THE OTHER ARGUMENT, JUST REAL QUICK -- >> I AM ACTUALLY MAKE THE ARGUMENT.

I DON'T THINK THAT JUSTICE ALITO'S OPINION IS TOTALLY WRONG.

I THINK THAT THERE IS SOMETHING TO BE SAID FOR DECISIONS BEING LEFT TO THE STATES.

I THINK IT ACCURATELY ACKNOWLEDGES THE FACT THAT IT DIDN'T DO ANYTHING -- ROE DID NOT DO ANYTHING TO BRING THE COUNTRY TOGETHER, WHICH I THINK WAS THE HOPE, ALTHOUGH I FIND THAT KIND OF HILARIOUS BECAUSE THIS WILL NOT BRING THE COUNTRY TOGETHER EITHER.

BUT -- >> THAT'S FOR SURE.

>> BUT THERE IS SOMETHING TO BE SAID FOR STATES' RIGHTS, RIGHT?

AND IT'S -- THE POWER OF MAKING DECISIONS SHOULD GO FOR THE MOST PART TO THE STATES.

I JUST -- YOU KNOW, AND I CAN SEE WHERE THE STATE MAY HAVE, YOU KNOW, THIS COMPELLING INTEREST IN PRESERVING LIFE.

I WOULD SAY THAT IF I WAS ARGUING THIS, MY ARGUMENT STARTS TO FALL APART WHEN WE TALK ABOUT THE SAFETY NETS THAT WE HAVE FOR PREGNANT WOMEN IN HEALTHCARE, FOR THE CHILD, THE FACT THAT OUR COUNTRY IS FINE WITH ALLOWING A PREGNANT WOMAN TO BE ALL ON HER OWN WHEN SHE'S PREGNANT DESPITE THE FACT THAT THE LAST TIME I CHECKED, IT TAKES TWO PEOPLE TO GET TO THIS.

SO THERE ARE GOOD PARTS OF THE OPINION, AND I DO AGREE THAT, YOU KNOW, THE -- JUSTICE ALITO MAKES OUT THAT THERE WAS NO REAL HISTORICAL BACK TO ROE AND I AGREE WITH THAT.

THE PROBLEM IS THEN WE FLIP IT AND I SAY, RIGHT, BUT WOMEN DIDN'T HAVE A CHANCE IN ANY OF THOSE LAWS.

>> WE GOT ABOUT 30 SECONDS.

YOU HAVE DONE A CASE IN FRONT OF THE SUPREME COURT.

SAME AS ANY OTHER CASE OR -- >> I WAS A PARTY, NOT ARGUING.

A PROFESSOR AT WASH-U ARGUED IT, WE WON MONTH AND LOST THERE, AND WE THOUGHT THAT THEY WERE GOING TO OVERTURN ALL CAMPAIGN FINANCE ON FIRST AMENDMENT GROUNDS AND WE LOST.

>> LOOKS LIKE THEY'RE SITTING REALLY HIGH.

ARE THEY REALLY HIGH LOOKING DOWN UPON YOU?

ALL THE PICTURES I SEE LOOK LIKE THAT.

>> WHAT'S BAD ABOUT IT IS THAT THEY INTERRUPT EACH OTHER.

>> OH, LIKE WE DO.

>> NO, NO.

>> SPEAKING OF WHICH, WE'RE OUT OF TIME.

WE WANT TO THANK YOU BOTH.

>> THANK YOU SO MUCH.

>> NINA McDONNELL, BEVIS SCHOCK.

WE WANT TO THANK YOU AND WE WANT TO THANK OUR CHANNEL 9 AUDIENCE, NINE PBS AUDIENCE FOR JOINING US TONIGHT.

HAVE A SAFE NIGHT.

>> HAPPY CINCO DE MAYO.

>> Announcer: DONNYBROOK IS MADE POSSIBLE BY THE SUPPORT OF THE BETSY AND THOMAS PATTERSON FOUNDATION AND THE MEMBERS OF NINE PBS.