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Draft Opinion That Would Strike Roe V. Wade Obtained By Politico in Stunning Breach of Supreme Court Protocol; Biden Issues Statement on Draft Opinion Overturning Roe V. Wade; Evacuees From Mariupol Arrive in Zaporizhzhia. Aired 10-10:30a ET

Aired May 03, 2022 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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[10:00:00]

JIM SCIUTTO, CNN ANCHOR: A good Tuesday morning to you, a busy news morning. I'm Jim Sciutto.

ERICA HILL, CNN ANCHOR: And I'm Erica Hill.

We're following, of course, a major story this morning with wide- ranging consequences in this country. A stunning Supreme Court draft opinion obtained by Politico, an unprecedented leak out of the nation's highest court, that draft shows the court poised to strike down Roe versus Wade. The move would, of course, reverse a nearly 50- year-old precedent and would immediately outlaw most abortions in at least 13 states.

SCIUTTO: Let's be clear, this is a draft opinion. An official ruling likely would not be published until June, and, of course, the language and the votes in this decision could change.

This draft, however, written by Justice Samuel Alito, a George W. Bush appointee who's been on the court for 16 years, in it he writes in part, quote, 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.

Let's begin this morning with CNN Justice Correspondent Jessica Schneider. She is outside the Supreme Court.

So far, the Supreme Court predictably quiet on this leak. Do you expect any comment on this?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: It remains to be seen, Jim. I was immediately in touch with the court when this news broke last night. There was a simple and strict no comment.

It will be interesting to see if they changed their tune. You know, we were outside Chief Justice John Roberts' house this morning. Our producer, Nicky Robertson, shouted two questions at him, asked about the leak itself, asked if there would be any investigation about this leak, the chief justice not responding in any kind. So, we'll see if the Supreme Court ultimately issues something here.

While we wait, though, this is really a stunning breach of secrecy at this court. This is a court that you never hear anything, any inkling about an opinion any moment before a decision is actually released. But, of course, Politico reporting that this draft majority opinion was written by Justice Samuel Alito, 98 pages, and eliminating the constitutional right for an abortion that was established in 1973 with Roe v. Wade, reaffirmed in 1992 with Planned Parenthood versus Casey.

Here's a snippet from that 98-page draft opinion. Again, just a draft, but here it is. The inescapable conclusion is that the right to an abortion is not deeply rooted in the nation's history.

So, it was an opinion that was joined, we understand, according to Politico's reporting not only by Justice Alito but four other conservative-leaning justices. This was a draft opinion that was circulated on February 10th. And we understand from the reporting that the initial vote just after the December 1st arguments, it was those four justices who sided with Alito, Justice Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Of course, it is always possible that things changed between February and now. It's possible that things will change in the coming weeks. We're expecting that this court would issue an opinion on abortion sometime before it breaks for recess. That's typically the last week of June, right before July 1st.

But if this is actually the opinion that comes out from the court, it would be a 5-4 decision overturning Roe v. Wade. This would have enormous implications for the entire country. In fact, it's estimated that about half of the states would act to immediately ban abortions.

There are many states that have so-called trigger laws that say if Roe v. Wade is overturned, abortion in those states will immediately be banned. In fact, in recent weeks, we've seen the Democratic governor of Michigan, she's actually filed a lawsuit to block that law in Michigan that would automatically go into effect banning abortions if Roe v. Wade was overturned.

And, you know, Jim and Erica, we've seen a groundswell in the recent weeks and months from Republican-led states all over the country, Florida, Kentucky, they actually overrode their governor's veto. We've seen Oklahoma really have a flurry of activity restricting abortion. In fact, just last week, they passed a six-week abortion ban. Before that, the governor signed an all-out abortion ban that's set to go in effect in August.

So, we are already seeing a flurry of states act more might. The governor of South Dakota has said if this is true, she'll call a special legislative session. So, a lot swirling here, but, again, it's important to note, just a draft opinion, nothing has officially been released by the Supreme Court just yet, guys.

SCIUTTO: Yes. HILL: Jessica Schneider, I appreciate it, as always. Thank you.

President Biden meantime just releasing a statement on that draft opinion. White House Correspondent John Harwood joining us now with more.

John, what are we hearing from the president this morning?

[10:05:00]

JOHN HARWOOD, CNN WHITE HOUSE CORRESPONDENT: Well, Erica, we may hear from the president on camera at some point when he leaves for Alabama, the trip he's making today, or when he arrives in Alabama. We don't know.

But we do have this written statement. Let me just read a portion of it to you. President Biden says, I believe that a woman's -- excuse me. Did we lose something?

HILL: John, just give us a minute. We just want to listen in to Senator Susan Collins.

SCIUTTO: Yes. She, of course -- sorry to interrupt John there, of course, key because Susan Collins in her vote for Justice Kavanaugh had said at the time that she had assurances from him that he would not vote to overturn Roe. Based on how this decision is laid out here, it appears that he would be on the side to do so. Again, we should note, those votes and positions could change.

But, sorry, John, back to your point on the White House reaction.

HARWOOD: Well, let me just read President Biden's 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 stability demand that it not be overturned. 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 need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law. Of course, the House has already passed legislation codifying Roe. The Senate has not. They don't have the votes for it.

But because this issue is so important in the lives of so many people, this has the potential, guys, to really shake up the deck for politics both this fall in the midterm elections and in 2024.

Remember, we've been locked into a situation for months. President Biden's approval ratings have been low. His opponents are upset and attacking him over issues like inflation, immigration, crime, the president's own political base is dispirited because action on voting rights and some of the economic issues that the president has pushed has not moved forward because of opposition from Joe Manchin, Kyrsten Sinema, other potential difficulty, the refusal to get rid of the filibuster.

But, all of a sudden, this will send a jolt of electricity through the Democratic electorate that has the potential to significantly change the outlook for November. Presidents almost always lose seats in the House of Representatives in their first midterm. Democrats can only lose a few and still keep their majority. They can't lose any and keep control of the Senate.

But this changes the odds somewhat. Republicans still have an advantage going into the fall. There are still going to be other issues that are important, like the economy, like inflation, the others that I mentioned, but this is a new dynamic that all of a sudden presents a different picture than we've seen politically with just a few months before the midterm elections.

SCIUTTO: Yes, the political effects of this down the line difficult to judge with any certainty at this point. Of course, if this is overturned, the most immediate effect would be how it affects women in the states that have such legislation.

John Harwood at the White House, thanks very much.

HILL: And joining us to discuss, CNN Chief Political Correspondent Dana Bash, Jeffrey Toobin, CNN's Chief Legal Analyst, and former federal prosecutor Caroline Polisi, who's a federal and white collar criminal defense attorney and lecture at Columbia Law School.

Dana, I do want to start with you because I know you just got a statement from Susan Collins. What is she saying this morning?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Susan Collins, of course, very important because she is a Republican but very openly for abortion rights. And what she said in this statement is if this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office. Obviously we won't know each justice's decision and reasoning until the Supreme Court officially announces its opinion in this case.

A bit more context here, important context, she talks about her meetings with those two now justices, then just nominees in her office. We had a conversation on State of the Union as Brett Kavanaugh's confirmation was going through the Senate process, and she talked about the promise that he made to her. Listen to this.

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BASH: How can you be or are you 100 percent certain, without a doubt, that Brett Kavanaugh will not overturn Roe v. Wade?

SEN. SUSAN COLLINS (R-ME): I do not believe that Brett Kavanaugh will overturn --

BASH: Precedents are overturned all the time.

COLLINS: They aren't overturned all the time, and listen to the standards that he put forth in his conversation with me and also in the hearing. He says, for a precedent, a long-established precedent like Roe to be overturned, it would have to have been grievously wrong and deeply inconsistent.

[10:10:01]

He noted that Roe had been reaffirmed 19 years later by Planned Parenthood versus Casey, and that it was precedent on precedent. He said it should be extremely rare that it be overturned, and it should be an example --

BASH: But you have obviously full confidence?

COLLINS: I do.

(END VIDEO CLIP)

BASH: And what she's saying today is that she was wrong and that they misrepresented what they said, particularly in that conversation. It was about Brett Kavanaugh, but she did also vote for Justice Gorsuch. She did not vote for Amy Coney Barrett, another Trump appointee.

SCIUTTO: We should also note that Samuel Alito in 2006, during his confirmation hearing, expressed very explicitly his respect for precedent, particularly precedent had been reaffirmed by succeeding decisions. We should also note, of course, that the vote count on this, as we know it, could change before the final decision.

But, Caroline Polisi, there is an argument you will hear from some conservatives who would support overturning Roe that this is a decision that should be decided by elected representatives, whether that be at the state level or at the national level in Congress. What is your view as to whether that applies to this, and how would that precedent in its own right potentially affect other rights that have arisen from Supreme Court decisions?

CAROLINE POLISI, FEDERAL AND WHITE COLLAR CRIMINAL DEFENSE ATTORNEY: Absolutely, Jim. I just note that this is a shocking but not unanticipated decision to be sure. I noted with Erica, you know, three years ago on this program with the appointment of Justice Amy Coney Barrett perhaps naively that perhaps we were seeing a bit of a sea change, an incremental step-by-step approach to dismantling of the fundamental core holding of Roe v. Wade.

Alito came down hard, not so, he is really drawing a line in the sand here overturning whole clock with one fell swoop, you know, the rights that many women have come to rely on for the past 50 years in this country. And you're absolutely right. As much as Alito can say that abortion is a unique issue, the fact is that contraception, same-sex marriages, all sorts of individual autonomy rights are now on the chopping block.

There is no way to simply pluck the abortion debate from the jurisprudence that we have so far in this country and let everything else stand. I hate to say slippery slope but this is the beginning of a deluge, it is a slippery slope, Jim. HILL: I mean, look, we had Steve Vladeck saying earlier today, Caroline, that this was an earthquake, right, of what could happen constitutionally.

Jeff, when you look at all of this, picking up on that point, I've heard you say more than once this morning, and I think this is a really important point for people moving forward, that this could sort of open the door for Congress to act, not right now, right, given what we see in terms of the makeup in Washington, but in the very near future.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Right. You know, one of the messages that people have taken from this opinion, draft opinion, is that, well, it's just up to the states now and the blue states will allow abortion and red states will not. That's true in the very short- term. But if you read this opinion and if it becomes the law of the land, it is an invitation to Congress and the president to pass a law and sign it into law that bans abortion in the entire country, in New York, in California and everywhere else. Because if there is no constitutional right, it leaves the playing field free for legislators, that's what they mean by returning it to the people's representatives. And it's not just at the states, it's at the federal level as well.

Now, there is a Democratic majority in the House and Senate and the president is a Democrat, so that's not going to happen now. But there is a very real possibility that in 2024, there will be a Republican president, a republican Congress, and this opinion is an invitation to those future representatives to ban abortion in the entire country, not just in the red states.

SCIUTTO: We should note throughout this that this has not been happening in secret. There's been very public discussion among Republican politicians and others about wanting to appoint justices that would overturn Roe v. Wade. President Trump said it explicitly. And you're aware of that perhaps as some of these nominees -- well, all these nominees who have come before the court, they've been asked about this question specifically about Roe v. Wade and also about how they view precedent.

I wonder, Caroline Polisi, a lot of attention understandably on Brett Kavanaugh, but i want to play Samuel Alito's answer in 2006 to the question on precedent and ask you if this was a deliberately misleading answer. Have a listen.

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UNIDENTIFIED MALE: Do you believe it is the settled law of the land?

JUSTICE SAMUEL ALITO, SUPREME COURT: Roe versus Wade is an important precedent of the Supreme Court. It was decided in 1973. So, it's been on the books for a long time.

[10:15:01]

It has been challenged on a number of occasions, and I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons. First of all, the more often a decision is reaffirmed, the more people tend to rely on it. And, secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices.

(END VIDEO CLIP)

SCIUTTO: That justices can change their opinions over time. But, Caroline, as you hear that answer, was that misleading?

POLISI: Yes. You know, Jim, these hearings have really devolved over time into political theater. We are taught since day one as law students in constitutional law class that the judicial branch is supposed to be immunized from political questions. I think it's time to just dispense with that nicety and just admit that in 2022 that's just not true. Alito is trying his best there to sort of dodge the issue.

And if you read this opinion, he tries very hard as well to make this not about politics, but the fact is when you're talking about abortion in this country, it just can't be done, whether or not we like it, this is a political issue.

And as Jeff noted, you know, now we are going to see a slew of litigation among the states. There's going to be a patchwork of laws coming up, you know, questioning whether or not -- what are the carve- outs going to be? Will be a carve-out for rape and incest in certain states? Will the health of the mother come into play? This is just opening up a floodgate, and it is absolutely a political question. Let's stop denying that.

TOOBIN: And if I can just add, I think it's very important to talk about, you know, how this will work in the real world. The idea that this is just about the red states is wrong. Many of these red states are passing or talking about passing laws that prohibit people from traveling for an abortion, from prohibiting people from other states for financing travel. There's the entire issue of medical abortions about whether this -- you know, the abortion pills can be -- can be shipped in interstate commerce. So this is not just about the red states. The red states are going to shut down, but that is going to affect the whole country, not just the women in the red states.

HILL: Dana, this is inherently a political issue, as we know. This has been a very effective motivator, both abortion and the Supreme Court for Republicans for some time now. It has not had that impact traditionally for Democrats.

Based on what we are seeing and hearing this morning, is there a sense in Washington that that's starting to change?

BASH: Well, I'll tell you that, politically speaking, every Democrat I've spoken to this morning, particularly those who are on the ballot in tough races in November are hoping that this is a base motivator for the Democrats, and not just necessarily the base but in the few swing districts left in America, thanks to redistricting, that there are suburban women, suburban men who might be motivated to vote in a way that they weren't when they just assumed that Roe v. Wade was safe.

But one important thing, I think, to note that Jeffrey was talking about so clear in this draft opinion is, yes, they're trying to kick it back to Congress. They did the same thing in 2013 with voting rights. This isn't up to us. This should be the people's representatives who decide it. And you know what? It's not happening right now in Congress. It just isn't. And whether it's the Democrats in charge now or unless there is a very big majority in never mind the House, but in the U.S. Senate by Republicans or Democrats, it's hard to imagine anything related to something this divisive would get through.

And also, just to dangle one other thing out there, this whole debate about whether to get rid of the filibuster, the question is whether Democrats will think twice about that on this issue given what Jeffrey said that the minute Republicans are in charge, if they don't have a filibuster, maybe they could act.

SCIUTTO: Caroline, I want to ask you this, because you have the states' rights argument here by those who oppose Roe. I mean, you have folks who oppose it entirely, oppose abortion rights entirely. You have folks who make a states' right argument. You have others who go at the viability test, right, established by Casey later, 24 weeks, that there is a middle ground, if that's the right word.

And I realize as I use those terms that this is perhaps the most sensitive, personal and political issue in this country. So, I'm aware of that as folks who are listening right now. But that is a legal argument that is presented, which also is connected to a health argument, right?

In this day, is that an open question, right, the viability test timeline as established by previous precedent?

POLISI: Well, that's gone now.

[10:20:00]

That's out the window. And I think there's a lot of outdated language. You know, there are -- there were many problems with the holding of Roe v. Wade, to be sure, and Casey exemplifies that.

And Alito made clear in his ruling that, you know, ironically, he was trying to sort of correct the errors of this assertion of raw judicial power, those are the terms that he used, in this holding of Roe v. Wade. He made no mistake about showing his opposition to that holding when it happened, but, ironically, that's exactly what he's doing now. As Jeffrey noted, this is, you know, going to go back to the states now, but this is undoubtedly a political question.

And I would just note, Jim, that the real world implications of this ruling, they are already happening on the ground in Texas since the SB-8 came into effect. It is going to have a disproportionate effect on poor black and brown women because those are the women that disproportionately seek these services. So, make no mistake about it, this is happening today. This is going to have an effect today, and, you know, we'll see how it plays out. But it's no longer a theoretical question now.

SCIUTTO: Yes.

TOOBIN: And if I can just add, one of the things we have learned about countries that ban abortion altogether, this is often -- this has been true in the past in Central and South America in particular, is that banning abortion does not reduce the number of abortions. It simply makes them more dangerous and it harms the women who are trying to get them. But banning abortion legally doesn't stop abortion in the real world.

HILL: Jeffrey Toobin, Caroline Polisi, Dana Bash, I appreciate all of you joining us this morning. Thank you.

SCIUTTO: So many issues discussed in this, and we are just beginning, and we'll stay on this story.

The other story, of course, we're following closely, Ukraine, we're live there as we've been witnessing the first evacuees arriving from the besieged city of Mariupol that has suffered so much, many of them women and children, the elderly. They've been trapped hiding in a basement at the steel plant there for two months, some of them. Their emotional stories, just ahead.

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[10:25:00]

SCIUTTO: They fled underground for weeks to save their lives from Russian shelling. Now, civilians evacuated from that Azovstal steel plant in Mariupol have now gotten out and they're arriving in Zaporizhzhia a short distance away where CNN is on the scene.

HILL: CNN's International Security Editor Nick Paton Walsh is there on the ground. And it looks like, Nick, you've made your way inside. Is that some sort of a processing area for folks who have just arrived?

NICK PATON WALSH, CNN INTERNATIONAL SECURITY EDITOR: Yes. And when we spoke a while ago, we were talking with Olga who's now sat down here. Very keen on her coffee and some chocolates that hands her, I think, to some degree, anxious about what comes next, still wearing the head (INAUDIBLE) around her neck, that's kept her in light the basement for such a long period of time, and she sat with Victoria and Vladimir, who, I mean, friends, frankly, for their existence together down there in the basement and also in the bus that brought them out to here.

But stories of the extraordinary world they lived in underground in the dark for quite so long. There was food, they said, certainly, not much of it, but enough to get them through. And here I think the concern is what comes of them next because we know that there is a government assistance program here. Sorry, we're in the way of their important work here too. But one thing I have to tell you that Olga was looking for chocolates, so I'm just going to make sure she gets that now. I'm just saying to share and not have it all to herself, but these are people who have been living on the very basics that the Ukrainian soldiers in that could provide for them, and a broader effort here to be sure that as they emerge from those just five buses we saw pull up here, not a large number of people but a deeply important cargo that those buses were carrying.

This is Valentina.

She's saying she was actually in the Azovstal plant herself but living close to it and frankly quite terrifying.

Okay. So, they're going to look for their kids, that's their next stop, try and meet up with their families.

And this is obviously the key question for so many people here now as they've left behind their lives in besieged, battered Mariupol, now under Russian occupation here and now have to answer the urgent question of what for my life next.

They have, and certainly in Olga's case, the coffee she was very keen for, but don't know what next for their world. It's been destroyed what was behind them, and now they have to try and rebuild themselves.

But the hope had been that this first batch of evacuees might have been to create a corridor, which could allow larger numbers of people to emerge into Ukrainian-held territory, but the last two days, frankly, have shown how incredibly complex that passage is.

Now, just talking to Veronica there who was just -- sorry, Victoria there who was just a moment ago standing up over there, she was saying actually their way out was relatively easy, that the Russians didn't block them.

[10:30:02]

They seemed to be allowed through.