Clip: Republicans search for source of Roe leak as Democrats try to fortify abortion rights

May. 06, 2022 AT 5:19 p.m. EDT

A leaked draft of a Supreme Court opinion sent shockwaves across the nation this week with revelations that the majority of justices support overturning Roe v. Wade, the 1973 landmark case that has federally protected a woman’s right to an abortion. Chief Justice John Roberts confirmed the authenticity of the text but said it is not final, while also announcing an investigation into the leak.

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Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

Alcindor : This week, a leaked draft Supreme Court decision sent shockwaves across the nation. The bombshell scoop by "Politico" revealed five Supreme Court justices support overturning Roe v. Wade.

Since 1973, the landmark case has federally protected a woman`s right to an abortion. In the document, Justice Samuel Alito wrote: Roe was egregiously wrong from the start. It is time to heed the Constitution and return the issue of abortion to the people`s elected representatives.

Chief Justice John Roberts confirmed the authenticity of the text, but said it is not final. He also announced an investigation into the leak.

If Roe is overturned, about half of the states in our country would likely ban abortion or heavily restrict it. Opponents of abortion rights applauded the news.


Weston Schinn, Anti-Abortion Rights Activist : Ultimately, you are murdering a child when you make that choice to abort. And we don`t believe that murdering a human is a choice.


Alcindor : President Biden had this to say about the draft decision and the conservatives who support it.


Joe Biden, President of the United States : What are the next things that are going to be attacked? Because this MAGA crowd is the most extreme political organization that existed in American history.


Alcindor : Joining me tonight to discuss this and more, Julia Ainsley, a justice correspondent for NBC News; Josh Gerstein, senior legal affairs reporter for "Politico". He is one of the reporters who broke the SCOTUS story and upended the week for all of us, of course. And joining me here in studio, Jonathan Martin, national political correspondent for the New York Times and co-author of the new book "This Will Not Pass: Trump, Biden and the Battle for America`s Future." I should tell you that book has also been moving us around this week in Washington. And Abby Phillip, of course, a good friend, anchor of "Inside Politics Sunday" and senior political correspondent for CNN.

Thank you all of you for joining. This, of course, has been a busy, busy week.

And, Josh, we have you to thank for that. So, I`m going to start with you. Talk a bit about what the significance of this decision would mean to women across this country and to our nation.

Josh Gerstein, Senior Legal Affairs Reporter, POLITICO : Well, it would basically end a federal constitutional right that has been recognized for almost half a century. Since Roe versus Wade became law of the land in 1973, there has been a guarantee that someone seeking an abortion had the right to do so. There could be certain limits on that. Over the years, the limits on that have gotten stricter, but there was still a federal constitutional right in every state in this country.

And if Justice Alito`s draft opinion that we reported and made public on Monday becomes the Supreme Court`s final word on this issue, you`d have really a situation of abortion haves and have-nots across the country, where you would have many states where abortion was relatively available and probably about 26 states where abortion is banned or very, very sharply restricted. You would then have women trying to get medication abortions in those states or possibly travel through what might develop as a kind of Underground Railroad to get them out of those states and into other states where they could get legal abortions.

It would be a pretty dramatic change in the availability of abortion across the country.

Alcindor : It would be a dramatic and really generational change. I want to also ask about other reporting, that Chief Justice John Roberts said there will be an investigation. You told our reporters it is easier to say there is an investigation than to carry one out.

Talk about how vigorous you think the court will look into this. How worried are you about being targeted? This is your reporting they will be looking into.

Gerstein : Well, Yamiche, the reason I say it is difficult is leak investigations are always difficult in any type of situation. They are the kind of things that most people in law enforcement don`t like to carry out. It`s a lot of work and often times they end unsuccessfully.

The Supreme Court I think is in a particularly awkward position to do this because they don`t really have an investigative branch internally. There`s no inspector general of the Supreme Court. It`s not clear that there is any legal violation here, any criminal violation. It`s not clear whether the Justice Department or FBI are interested in getting involved in this investigation.

And so, the mechanics of how the court will go about carrying this out are entirely unclear. They do have a relatively small police force, but they basically patrol the grounds and keep order in the court during arguments. So, we don`t really know how it will play out.

As far as "Politico" itself, we are committed to defending the story and the anonymity of the person familiar with the proceedings here that provided us a copy of this Alito draft opinion, and we`ll just have to see how things play out.

Alcindor : And, Julia, you are, of course, a justice correspondent as well. I wonder what you`ve heard about this investigation, but also the standing of Justice Roberts, who is the one, of course, pushing for this investigation.

Julia Ainsley, NBC News Justice Correspondent : Yeah, I was standing outside the Supreme Court in the throes of that crowd Tuesday when we heard from the chief justice, saying indeed what Josh had reported, what he posted on "Politico" was authentic, although as you say, clarifying it was not final.

And, you know, but I think these calls into account is what is the chief justices power now? And it shows that it`s waning, right? So, not only does, as Josh pointed out, the Supreme Court not have the ability like other agencies would to investigate and prosecute someone, but also his ability to control the court is definitely waning.

With this leak, unprecedented in the history of the court, we have seen leaks of opinions before, but never leaks of drafts like this, which gets inside the court and really disrupts their deliberative process. But that`s what the Supreme Court prides itself on. It is why we have not been able to get cameras in the Supreme Court because they want to keep this a sacred space where they can continue to have their own internal deliberation and not issue an order until its final.

And as far as Chief Justice Roberts Power, it is beginning to change. You saw it was Alito who wrote this majority opinion, as he was asked to do by Justice Thomas. You really see the you really see the influence at all of Justice Roberts in this because the bench has changed with the loss of Ruth Bader Ginsburg and gain of Amy Coney Barrett, he is no longer the swing vote in the middle. He is in the left of now what is a majority right court.

Alcindor : And, Abby, Julia just talked about the Supreme Court being sort of a sacred place. But what does this leak decision, especially with John Roberts calling it a breach of trust of the court, signal about the overall health of the Supreme Court and where things stand?

Abby Phillip, CNN Senior Political Correspondent : Yeah, I mean, the Supreme Court, like a lot of this country, is driven by a lot of political divides. I think there is no going away from that at this point. The court has been tainted by a political process involving putting the justices on the court in the first place.

And now I think what we are seeing with the leak, though we don`t know about where the leak came from, is that someone within the court, which is known for its secrecy and the way that it guards its process, is trying to influence that process by leaking. I think that tells us a lot about how the court sees itself and the role that it plays in American society. No matter which side it came from, there was an attempt to, as Julia put it, to disrupt the deliberative process.

That disruption was intentional. I`m not sure whoever did this, the outcome may be as they expected, because when things come public like this, the political consequences are a little bit more unpredictable and I think that`s what we`re going to be living through over the next few months.

Alcindor : Certainly.

And, Jonathan, you told our producers it is sort of a myth that the Supreme Court is above politics. Talk about where this leaves the court given how partisan the issue of abortion is.

Jonathan Martin, The New York Times : Yeah. I think if you look at the recent history of the country. This notion has taken hold that these are these apolitical figures who don a black robe and become totally above the political fray and don`t even think about politics.

Obviously, that`s not true. I mean, they -- you look at who appoints them and their voting records, they tend to fall on fairly partisan lines. It`s also fairly factually inaccurate that the court has been apolitical.

The history of the court is filled with politicians. We had a former president who served on the Supreme Court, William Howard Taft. We had figures -- Earl Warren was the governor of California who became a chief justice of the court. We have long had a political influence on the court.

The appointees of the court have been shaped by political calculations of the president at the time. I think it is unsettling to have this gesture that this is not a political institution. Of course, it is. It is part of the government, so it is political. But I do think, Yamiche, that if the decision does come in June and is basically what we read here, that is going to offer Democrats something they have lacked this year, which is a lever to energize the voters who have shown very little interest so far in this midterm, and the voters that have faded from Joe Biden, too. Joe Biden won the election in part because younger voters, especially, were appalled by Donald Trump and rallied to him.

But without the Trump comparison, younger voters have not been terribly enamored with Joe Biden for the last year. This could be a way for Democrats to get younger voters back to the polls, back more engaged in Democratic politics in a way that has not happened in the last year.

Alcindor : And the midterm issues of this is definitely something where you`re going to jump ending it.

So, I do want to ask Josh, though, because Friday night, Justice Clarence Thomas said the court, quote, cannot be bullied.

Talk about the politics of that given what this justice is saying.

Gerstein : Well, you know, Chief Justice Roberts said something similar a day earlier. He said that -- he called the leak absolutely appalling, but he said it would not affect their deliberations or their schedule or anything along those lines.

With due respect to the justices, the notion that this won`t affect the process completely possible to me, even if it does not sway any votes. Justice Alito now has to confront the fact that any change he has to make to his opinion from here on out, we are going to know. People can put these documents up side-by-side when the decision comes out, probably at the end of June, and see what was changed and which justices agreed or did not agree with that portion, even down to the footnotes people will be examining them.

So, it`s sort of an observer effect kind of situation. Simply bringing your eyes onto the process alters the process. Maybe it doesn`t change the outcome, but there is no question the deliberations the justices have on this case from here on out simply have to be affected whether they want to admit it or not.

Alcindor : And talking about sort of effect of this, we have been talking about the politics of it. But this week, I was in Mississippi and Louisiana talking to Americans about the draft decision.

Shannon Brewer is the director of the only abortion clinic in Mississippi. It is, of course, the one at the center of this case.


Shannon Brewer, Director of Jackson Women’s Health Organization : I don`t have any hope with anything to our judicial system. I have no hope in Congress right now because this should never be. It should never have been. We should never have gotten to this point.


Alcindor : And in Louisiana, I talked to a 32-year-old Lillian Newton. She`s had three abortions and had since become a worker at the clinic that provided her her care.


Lillian Newton, Patient and Clinic Worker : Had I not had abortion access when I was at the age of 24, 25, debating my life path, I would have been completely lost. I don`t know how I would have made it through an unplanned pregnancy.


Alcindor : I also talked to opponents of abortion rights, who told me they want to provide more resources for women to deal with unwanted pregnancies.

Abby, I want to come to you. What`s your sense of who`s going to be most impacted if Roe v. Wade is overturned?

Phillip : Well, there`s no question that the women who are in a position to want an abortion in the first place are going to be affected. We have already seen the effects of that in -- most recently in the state of Texas, where they passed a restrictive abortion law. It resulted in women leaving Texas and going to other states.

There is a practical impact of it, whether you support abortion rights or whether you don`t, there is no question that women are caught in the middle here. And I think a lot -- there was kind of a debate happening among some conservatives about whether overturning Roe would have a significant effect or not. Some argue there are not that many abortions happening in this country anyway, so rolling back Roe is not going to make a difference.

But there is a reason this debate has dominated American politics for 50-plus years. And it`s because there is a sort of -- I mean, there`s an impact to this that deals with women and people on both sides care incredibly deeply about. I don`t think it is true that the effect of rolling back Roe would be nonexistent.

There are, you know, over a dozen states where they have laws already on the books that would completely outlaw abortion, and then many more that would be able to pass those laws. So, the effect would be pretty sweeping and pretty significant.

Martin : And, Yamiche, if I could -- I think it would add to the red versus blue dynamic we have been living with in this country for really the last 15 years, which President Trump accelerated, this patchwork of not just laws, but really culture and values between red and blue America, and in some cases, even within states themselves.

We have a book of this week, we talk about in the book what this country has become and how the two parties have pulled further apart. They are talking in opposite directions. I think this will be a vivid example of a country in which he would have entire regions where abortion is illegal and people would obviously have to sort of on a plane for abortion access. That really captures two Americas dynamic that all have been covered for the last ten years.

Phillip : To be clear that is not how the country operates right now because most Americans have some access to abortion and most Americans are in the ideological middle on this issue.

Alcindor : I want to ask a quick follow-up, Abby, which is the director of the only abortion clinic in Mississippi who she says overwhelmingly serves women of color, women low the poverty line, she said she has no faith in Congress, no faith in Washington.

I wonder what you make of that given that Jonathan is talking about this red and blue America, and this woman says while politics are not going to help us at all.

Phillip : I mean, she is not wrong. In the 49 years Roe has been the law of the land, neither side has been able to codify a federal law that either restricts abortion or codifies the tenets of Roe. Why is that even though we have gone through periods of super majorities in the House and in the Senate and the presidency being held by one party? It is because they have not been able to come to a consensus on this issue, even within the political parties.

So, she is not wrong that the political process has been very broken on this issue and roe has deferred the country dealing with that for 49 years.

Alcindor : And, Julia, you were outside the Supreme Court. You saw the energy on both sides. I wonder what you make of sort of the ability to sustain that energy both on the Republican side or on the Democrat side given what you saw this week.

Ainsley : This is a foreshadowing of what is to come, whether it is in June or when we get this opinion, when its finally final. What I saw was a deep division. I saw people getting in each others faces. I stood there as the police, the Capitol police, at the request of the Supreme Court police put up barriers, which split the two sides. They asked everyone who was for abortion access on one side and the pro-life, the antiabortion activists, on the other side.

They felt they had to separate this crowd that is so indicative of what Jonathan is saying, not only on this issue, but the president is trying to rally voters, saying that even if abortion is not going to get you to the polls, the way this leaked opinion was drafted shows that this could happen to other issues.

Basically if you have the Supreme Court going back on long-established precedent on things like gay marriage, for example, although that could be up in the air. It could be left to the states. The president is hoping that will get people to the polls. But I will say that if you look at how the draft opinion was structured, they do say, Alito says, that this is a specific issue and that there is no right other than abortion that they think it is time to roll back precedent on, that they see this as a specific topic that there is a right to do that.

But there is a lot in play here. I think it really could continue to galvanize voters and bring them to the polls. We also have to remember, there are a lot of other issues. There is the economy, there`s the ongoing war with no end in sight, there`s inflation, there`s so much that can bring voters to the polls.

And as we heard this week, I think Lindsey Graham comment on the fact there are actually very few single issue voters out there. But this could certainly that energizes people. And I think the Biden administration is hoping as a result of this that midterms will not such a referendum on President Biden, but would really be a matter of, you know, blue versus red values and what values voters will hold and that will drive them to the polls rather.


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