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At This Hour

Leak Reveals SCOTUS Could Overturn Abortion Rights. Aired 11- 11:30a ET

Aired May 03, 2022 - 11:00   ET




UNIDENTIFIED MALE (voice-over): This is CNN breaking news.

BIANNA GOLODRYGA, CNN ANCHOR (voice-over): Hello, everyone, I'm Bianna Golodryga in for Kate Bolduan. We begin with breaking news. We are moments away from hearing from President Biden on the news that the U.S. Supreme Court is poised to strike down Roe v. Wade, the landmark ruling that legalized abortion nationwide.

In a statement, the president says a woman's right to choose is fundamental and that lawmakers need to protect it if Roe is indeed nullified. A draft opinion obtained by "Politico" indicates the Supreme Court has voted to overturn the constitutional guarantee to abortion access, which has been in place for half a century.

The final decision would lead to abortion bans in nearly half of U.S. states and present a seismic shift for Americans. Crowds are gathering outside the Supreme Court since the news broke last night, so let's begin our coverage with CNN's Jeremy Diamond, who is live at the White House today.

Jeremy, the president making crystal clear where he stands on this issue this morning.

JEREMY DIAMOND, CNN WHITE HOUSE CORRESPONDENT: No doubt about it, Bianna. And listen, we know that President Biden and the White House were -- learned about this news like everybody else, through this "Politico" report.

And the president making clear that there is a caveat at the top of this, which is that the White House does not know whether this is an authentic document and -- but, nonetheless, the president making clear that he believes that this is a fundamental right that women have had in trying through Roe versus Wade, writing in the statement, "I believe that a woman's right to choose is fundamental.

"Roe has been the law of the land for almost 50 years and basic fairness and the stability of our law demand that it not be overturned."

Now the president also talks about efforts that his government has made so far to assess the impact of these laws in various states, where officials have been dismantling the right of women to choose in several states across the country.

And the president then pivots to the midterms, saying, "If the court does overturn Roe, it will fall on our nation's elected officials at all levels of government to protect a woman's right to choose. And it will fall on voters to elect pro-choice officials this November.

"At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation, that codifies Roe, which will I work to pass and sign into law."

The last part of that is really the core of what you're seeing, first of all, an implicit acknowledgment that Democrats do not currently have the numbers in the Senate to be able to codify Roe versus Wade as the law of the land to make abortion legal through legislation.

But also that this is becoming a political fight. It will be a galvanizing cry for Democrats heading into midterms, where they are, as of now, expected to lose their majority in the House, perhaps lose their majority in the Senate as well.

Democrats will certainly hope that this issue of abortion and this ruling from the Supreme Court, if it comes down this summer, will be a motivating factor for Democrats to push back on what was expected to be Republican gains in November.

GOLODRYGA: As mentioned, we are expecting to hear from the president at any moment, as he leaves the White House for Joint Base Andrews. We will take that when he speaks. Jeremy Diamond, thank you.

At this hour, demonstrators are gathering outside the Supreme Court as Americans learn that the landmark ruling Roe v. Wade could soon be a thing of the past. CNN's Jessica Schneider is live at the Supreme Court with details on the draft opinion.

Legal experts not only shocked by the leak itself but at some of the language within this draft.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes, this would be a monumental and consequential decision from this court, if it is ultimately released in the weeks ahead.

On the other side, this is really a stunning breach of secrecy of this court. I've covered it for five years. I know my colleagues have covered it for even longer. It's not -- it never happens that a leak happens of this magnitude from the court. The opinions are never indicated or released at any point before decision day.

We're still waiting to hear if and when the Supreme Court might comment on this. We were outside the chief justice's home, John Roberts, earlier this morning. He was asked if he had any comment about the leak, if there would be any investigation into the leak. He said nothing.

So we'll wait to see if the court itself responds. But "Politico," reporting this draft opinion, is drafted by justice Samuel Alito. In it, if it were to go into effect, it would eliminate the constitutional right to abortion that was established by Roe v. Wade in 1973 and affirmed by Planned Parenthood versus Casey in 1992.

I'll read you from part of the opinion here. Justice Alito writing, "The Constitution makes no reference to abortion.


"And no such right is implicitly protected by any constitutional provision. 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."

"Politico" releasing this draft opinion, 98 pages from justice Alito, joined crucially by four conservative leaning justices. And if this ruling were to be issued officially, it would send a seismic wave all over this country.

Already we've seen Republican-led states putting forth legislation that would roll back or completely eliminate the right to abortion. So they are ready act here. And we know that estimates are that about half of the states would immediately ban abortion if Roe v. Wade were to be overturned.

GOLODRYGA: Would blow up 50 years of precedence. Jessica Schneider, thank you.

Joining me now is CNN chief political analyst Gloria Borger, CNN chief legal analyst Jeffrey Toobin and CNN legal analyst and Supreme Court biographer, Joan Biskupic.

Thank you all for joining us on this very significant day.

Joan, we're all anticipating the court perhaps chipping away at Roe by not only its makeup but by its decision to take the Mississippi case in the first place.

How shocking is this draft and the arguments that Alito is making here?

JOAN BISKUPIC, CNN LEGAL ANALYST: Good morning, it's shocking in just about every way, how it would roll back a half-century of reproductive rights for women; how it was disclosed to the American public late last night.

And in terms of the substance that you ask about, Bianna, it's justice Alito's language in both tone and derision of Roe v. Wade and Planned Parenthood versus Casey, that Jessica just referred to, is so sharp and so strong that, I have to tell you the truth, that I can't imagine that what ultimately comes out from the court is as harshly worded.

The sentiment will probably be there. But to have five justices join what is such a strong statement against precedent, referring to abusive judicial authority by prior Supreme Courts in allowing abortion rights, and also how sweepingly it goes.

You know, what it does is it rolls back every -- every thread, every part, every element of Roe v. Wade and then goes to some of the decisions that Roe was founded on and casts some doubt on those.

And in its entire approach to precedent and disregard for precedent, it can't help but make someone wonder what would be next. As you know, we've always thought, you know, because of the political scene, because of how long Roe v. Wade had been entrenched, that the Supreme Court would not reverse it.

That was obviously before Donald Trump put his three appointees on the court. But now there's nothing that I think of as off-limits. You know, I used to say, oh, they'd never reverse Obergefell, which was the 2015 case that made same-sex marriage a fundamental constitutional right.

But now I have to say, I'm never going to say never again.

GOLODRYGA: Right. And as Joan said, the language may change. The likelihood that the opinion, if this draft is indeed valid, likely won't change, right?

And you say that this would be a seismic shift for the country.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: It was. And again, if this is the opinion or something close to it is the opinion, it's worth remembering what the basis of Roe v. Wade and the Casey decisions were, which is the right to privacy, which these -- which the justices found implicit in various constitutional provisions.

The right to privacy, according to the court, for decades has protected a right to purchase contraception. It is the right to have consensual sex with a person of the same sex or of a different sex. It's related to the right to marriage of same sex or a different sex.

If there is no more right to privacy in the Constitution, as this opinion seems to suggest, all those -- all those rules, all those existing precedents are also up for grabs.

How much the government can regulate people's private lives is not just about abortion. This opinion suggests that there is no right to privacy in the Constitution and it is free rein for states and the federal government to regulate, in what had previously been seen as a private realm.

GOLODRYGA: Gloria, I'm curious to get your perspective on this because you have Democrats who have argued that this president, that President Biden has not focused enough on this issue. He hasn't even said the word "abortion" since taking office.

How much does his approach to this issue now change?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: A 100 percent. You know, Joe Biden, in the past, has had some troubles with the issue of abortion.


BORGER: We know that he's a devout Catholic. We know that he's shifted positions in the past. And so there have been some questions about what he was willing to do.

I think those are now out the window. This is a category 5 hurricane and he's got a midterm election coming up. You saw that they released a statement earlier. I fully expect at some point that he's going to answer questions about this.

And I think we can also say, in looking at the political situation we are in, the economy is very, very difficult for him right now. But also remember that cultural issues matter more in elections than they used to. And they have been raised very much in the run-up to the midterm elections.

This is a culture issue the Democrats will raise. And the suburban women voters, who are not living on the edge, suburban women voters will react to this. Whether it's going to be enough, who knows.

GOLODRYGA: Yes, I was just going to say, because you had many Democrats acknowledging that, given the status of the economy and inflation, that it would be very difficult for them to retain hold of the House come midterms.

Is this an issue that you think can change that?

BORGER: Yes, I do think that there will be more enthusiasm among Democratic voters to come out and say, look, look at what is occurring. We don't want this to occur anymore, et cetera, et cetera. Democratic base, particularly women.

It's hard to predict right now how many people will come out. I know that the Democrats are going to be out there, saying this is going to affect everything, as Jeffrey was just saying before. It's not just the question of abortion; it's the question of where else the court will go.

Will the court backtrack on gay marriage, for example, as Joan was questioning?

So I think the Democrats are going to raise these issues. I think Biden's going to raise these issues. And how people react remains to be seen.

GOLODRYGA: Joan, I know you have reporting on where Chief Justice Roberts stands on this issue. We know that the Supreme Court, in its reputation, and where it stands within the country right now, given the hyperpolarization, is very important for him to protect.

BISKUPIC: You know, that's just -- that's right. Rarely does he write an opinion or give a speech that he doesn't somehow infuse it with the importance of the institutional regard for the court in this time and how he likes to stress that the court is not like, you know, not nine politicians in robes.

And he has been so self-conscious about the court's standing in America that he himself has been edging to the Left just because of his fears about how far this court has been lurching Right-ward and this is Exhibit A for the court lurching Right-ward. And what I knew from reporting before this "Politico" bombshell that came nowhere near to discovering something like this, an actual draft opinion from Samuel Alito, was that I had learned that the chief had been trying to convince colleagues to not go so far.

He has been a long-time opponent of abortion rights, dating to his work for the Reagan administration in the 1980s. He's voted against abortion rights and voted to uphold abortion restrictions.

But he has started to hedge on that. And from everything I know, he did not want to join the kind of opinion that Samuel Alito was writing.

He was willing, however, as I understand it, to say that the Mississippi law in dispute, that would prevent abortion after 15 weeks of pregnancy, that that could stand, which would already undermine part of Roe v. Wade.

But it wouldn't -- it would at least leave part of that landmark behind. And what I had learned was that he had made no headway with key justices to try to pick them off. The two most likely would have been justices Kavanaugh and Barrett, the most recent justices. And they were not budging, according to my reporting up, to now.


Joan Biskupic, Gloria Borger, Jeffrey Toobin, stick around. If we do hear from the president, we'll want to have you back.

Coming up, Democrats are vowing to fight back as the Supreme Court appears ready to overturn Roe v. Wade.

So what can lawmakers do to protect abortion rights?

Senator Elizabeth Warren joins me next.





GOLODRYGA: In a written statement, President Biden says a woman's right to choose is fundamental and that lawmakers need to protect it if Roe v. Wade is overturned.

Moments ago, Senate minority leader Mitch McConnell reacted to the news but only focused on the leak of the draft opinion. Take a listen.


SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER: One of the court's most essential and sacred features was smashed just about the outrage industrial complex a few extra days to scream nonsense about what the court might rule. This lawless action should be investigated and punished to the fullest extent possible.


GOLODRYGA: Joining me now is Democratic senator Elizabeth Warren.

Senator, welcome to the program. We are just getting breaking news in the form of a statement from Chief Justice Roberts and I'd like to read it to you and then get you to respond.

It goes as follows, "Although the document described in yesterday's report is authentic, it does not represent a decision by the court or the final position of any member on the issues in the case.


GOLODRYGA: "To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way.

"We at the court are blessed to have a workforce, permanent employees and law clerks alike, intensely loyal to the institution and dedicated to the rule of law."

He goes on to say that, "I have directed the marshal of the court to launch an investigation into the source of the leak."

Clearly his focus is on the integrity of the court and the unprecedented nature of this leak. Just wanting to get you to respond to the first statement and that is that the document in yesterday's report is authentic.

SEN. ELIZABETH WARREN (D-MA): Yes, the document is authentic. And this is a conversation about the integrity of this court. It is about the integrity of justices, who said in open, public hearings that they would respect the rule of law.

And respecting the rule of law means this precedent, that has been there for nearly 50 years. Look, I feel really angry about this. And what I feel angry about is that an extremist Supreme Court is going to impose their views on the rest of America.

And do you know who this is going to fall hardest on?

It's not going to fall hardest on well-to-do women. They can afford to get on a plane and go to another state, where abortion is legal. They can afford to leave the country. Who this is going to fall hardest on is going to be on poor women.

It's going to fall hardest on those who have been molested. It's going to fall hardest on women who have been raped. It's going to fall hardest on the woman who's already working two jobs to try to take care of the children she has.

And this Supreme Court has said they don't care. They don't care about those women. What they care about is imposing their extremist view on the rest of the country. That's what the Republicans have been building toward. And it looks like they have about arrived there.

GOLODRYGA: Let me ask you about the president himself, who put out a statement -- and if we do hear from him, we'll take it -- but put out a statement this morning, obviously highlighting his support in the defense of Roe v. Wade and also what his administration has done in defending it in court.

I'm curious given what our -- we discussed in our previous segment about him not even mentioning the word "abortion" thus far in his term as president.

Do you think that he and his administration have done enough publicly to highlight the significance of this issue?

WARREN: Look, we're past the time when we can look in the rearview mirror. We just don't have the luxury of that.

The question is what are we going to do now?

What are we going to do today and tomorrow and the next day and the next day and the next day?

Remember, the Supreme Court is not the ones that will get the final word on Roe versus Wade. It is Congress that gets the final word. We have the capacity to keep Roe versus Wade as the law of the land.

And if we act, then we can do that. So, to me, this is all about the focus on what we're going to do in Congress and how the president is going to help us do that, how people all across this country are going to help us do that.

We can put that vote on the floor now. We can get everybody on record on where they stand on Roe versus Wade, where they stand on a woman's right to an abortion after she's been raped, where they stand on the right to an abortion for a 14-year old who's been the victim of abuse, where they stand on the right to an abortion for some woman who can't support the children she has and is desperately trying to keep her family together.

Let's get them on the record voting on that. And if we don't have enough votes to pass it now, we get everybody on the record and then we take that to the public in November. We've got less than 200 days until Election Day. Roe versus Wade, in that sense is on the ballot.

GOLODRYGA: I know you have been in favor of blowing up and eliminating the filibuster; so has your colleague, Bernie Sanders.

I'm just curious, do you have any sense that other Democrats, Joe Manchin, who doesn't support abortion rights to begin with, or Kyrsten Sinema would be on this issue in particular?

WARREN: I think that it's one thing for them to talk about this in the abstract. You'd have to ask them how they feel about it, now that we know what's happened with Roe versus Wade.

But again, keep in mind, we can keep everybody voting. We can make them go on the record. And if we need more Democrats to change the rules, that's what happens in November.


GOLODRYGA: Senator, senator, we're just going to -- we're just going to break in and listen to the president for a second.

JOE BIDEN (D), PRESIDENT OF THE UNITED STATES: -- a call saying that it's been announced that it is a real draft. But it doesn't represent who's going to vote for it yet. I hope there are not enough votes for it. That's the main reason why I worked so hard to keep Robert Bork off the court. It reflects his view almost -- anyway.


BIDEN: Look, the idea that concerns me a great deal that we're going to, after 50 years, decide a woman does not have a right to choose within the limits of a Supreme Court decision, number one.

But even more equally profound is the rationale used. And it would mean that every other decision we made in the notion of privacy is thrown into question. I realize this goes back a long way. But one of the debates I had with Robert Bork was whether Griswold versus Connecticut should stand as law.

The State of Connecticut said that the privacy of your bedroom, a husband and wife or a couple, could not choose to use contraception. The use of contraception is a violation of the law.

If the rationale of the decision as released were to be sustained, a whole range of rights are in question, a whole range of rights. And the idea we're letting the states make those decisions, let (INAUDIBLE) make those decisions, would be a fundamental shift in what we've done.

So it goes far beyond, in my view, if it becomes a law and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights -- the right to marry, the right to determine a whole range of things -- because one of the issues that this court and many members of the court, a number of members of the court have not acknowledged is that there is a right to privacy in our Constitution.

I strongly believe there is. I think the decision in Griswold was correct overruling. I think the decision in Roe was correct because there's a right to privacy. There can be limitations on it but it cannot be denied.

QUESTION: Do you think that this irreparably (INAUDIBLE) the court?

BIDEN: Beg pardon?

QUESTION: Do you think that this (INAUDIBLE) before. We've never seen this happen before.

BIDEN: Well, you know, if this decision holds, it's really quite a radical decision. And again, the underlying premise -- and, again, I've not had a chance to thoroughly go into the report, to read the decision.

But it basically says all the decisions relating to your private life -- who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions, how you raise your child -- what does this do?

And does this mean that, in Florida, they can decide they're going to pass a law, saying that same-sex marriage is not permissible, it's against the law in Florida?

So there's a whole -- it's a fundamental shift in American jurisprudence.

QUESTION: Mr. President, (INAUDIBLE) do away with the filibuster to codify Roe?

BIDEN: I'm not prepared to make those judgments now about -- but, you know, I think the codification of Roe makes a lot of sense. Look, think what Roe says. Roe says what all basic mainstream religions have historically concluded, that the existence of a human life and being is a question.

Is it at the moment of conception?

Is it six months?

Is it six weeks?

Is it quickening, like Aquinas argued?

So the idea that we're going to make a judgment that is going to say that no one can make the judgment to choose to abort a child, based on a decision by the Supreme Court, I think, goes way overboard.

UNIDENTIFIED FEMALE: Thank you. Thank you, guys.

QUESTION: The midterms, what does this mean for the Democrats' argument in the midterms?

BIDEN: I haven't thought that through yet.

QUESTION: Do changes need to be made to the court in light of this, if this decision holds?

BIDEN: I beg your pardon?

QUESTION: Do changes need to be made to the court in light of this if the -- ?

BIDEN: No, we just have to choose -- I mean, look, one of the reasons why I voted against a number of members in the court.. They refuse to acknowledge that there's a Ninth Amendment. They refuse to acknowledge there's a right to privacy.

There's so many fundamental rights that are affected by that. And I'm not prepared to leave that to the whims and the -- of the public at the moment in local areas.

Thank you so much.


Come on, guys.

GOLODRYGA: There you heard the president answering questions saying that, if overturning Roe does, in fact, happen, if this decision holds, it is a radical decision, in his words.

He also went on to say that he supports codification, codifying the rule, making it a lot of sense, in his opinion, but would not weigh in on the filibuster.

I want to bring back in Senator Elizabeth Warren to get her to respond to what we just heard from the president.