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Mariupol Evacuation Efforts Continue; Supreme Court Set to Strike Down Roe vs. Wade?. Aired 1-1:30p ET

Aired May 03, 2022 - 13:00   ET

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

[13:00:30]

ANA CABRERA, CNN HOST: Hello, and thank you for joining us. I'm Ana Cabrera in New York.

An unprecedented security breach and a seismic shift in American society is potentially on the way. Protesters are starting to gather across the country. And the Supreme Court has now launched an investigation after a leaked Supreme Court draft opinion shows the High Court is poised to strike down Roe v. Wade, a landmark ruling that legalized abortion nationwide in 1973.

Last hour, President Biden slammed the draft opinion.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: It concerns me a great deal that we're going to, after 50 years, decide a woman does not have a right to choose.

If this decision holds, it's really quite a radical decision.

It's a fundamental shift in American jurisprudence, if it were to hold.

(END VIDEO CLIP)

CABRERA: This draft majority opinion was obtained by Politico. The court's public affairs office has confirmed it is authentic.

It was penned by Justice Samuel Alito. And he writes: "Roe must be overruled." Again, this is a draft. An official ruling is likely weeks away. And the language could change. But if it holds, nearly a half- century of subtle law would vanish in nearly half the country; 13 states already have so-called trigger laws that would take effect should Roe be overturned, immediately banning most abortions.

CNN justice correspondent Jessica Schneider is live outside the Supreme Court. And CNN chief White House correspondent Kaitlan Collins is traveling with the president in Alabama.

Let me start with you, Jessica.

Chief Justice John Roberts was pretty quick to react today. What is he saying? JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Ana, we rarely see

these statements lengthy statements, full-throated statements defending the integrity of the court from the chief justice.

In fact, the last time we really saw something like this was way back in November 2018, but the chief justice today issuing this statement defending the integrity of the court and calling this a singular, yet egregious breach of trust.

But then he pushed back on critics of the court, saying: "To the extent this betrayal of the confidences of this court was intended to undermine the integrity of our operations, it will not succeed."

So, the chief justice really trying to speak to the American public, trying to tell them that this court is still trustworthy. The court has acknowledged that this draft opinion is in fact authentic, but noting this is not a final decision.

And we have noted that justices can change their mind until the final minute when those opinions are released. The chief justice saying here that he will task the marshal of the court with investigating the source of the leak here, but really in this statement trying to calm the American public.

But, of course, this is -- this would be a momentous and extraordinary decision if this is ultimately the way the court goes, based on this draft opinion, 5-4, overruling Roe v. Wade -- Ana.

CABRERA: You point out, Jessica, things could change before the official opinion is delivered.

What are the chances that this is more or less what the final decision will look like?

SCHNEIDER: The chances are high at this point. What's notable about the Politico reporting is that they said their sources tell them, as recently as this week, Justice Alito still had four fellow conservative-leaning members of the court with him, meaning that he still had a 5-4 majority to write this far-reaching, wide-ranging opinion overruling Roe v. Wade.

Who knows if this leak may change that, the wave of sentiment we have seen outside the court, all over the country, the outspoken nature of lawmakers, governors. But what we do know is that a cascade of laws restricting abortion or banning it outright, that has already started to ripple throughout the country.

We have seen it happening, first and foremost, in Oklahoma. We're seeing it in states like Florida, Arizona, all of these states already moving to restrict and/or a ban abortion, Ana. And no doubt they will have even more impetus to do so with this draft opinion now out there.

CABRERA: And, Kaitlan, we heard some words from the president. He's calling on Congress to take action here. What are the Democrats' options at this point? And how far is the White House willing to go on this issue? KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: Well, he's not

just calling on Congress. He's also calling on voters to put more abortion rights supporters in office, saying that that is a way to make sure that, if the justices do ultimately overturn this, and this does -- this draft opinion that was leaked overnight does become the final opinion that is issued by the Supreme Court, then they could have lawmakers on Capitol Hill who could codify Roe vs. Wade into law, and not have to worry about what the Supreme Court justices do.

[13:05:10]

But, of course, that is a concern for November, when the midterm elections are here. The president says he hasn't really thought through the implications of this for what it could do for Democrats in the midterms.

Right now, as you know, Ana, the conventional political wisdom is that Republicans are going to do very well in the midterms and take back the House. And so one other option that has been talked about and that you saw senators like Elizabeth Warren and Bernie Sanders calling for overnight is to get rid of the filibuster, get rid of the 60-vote threshold that would require that many votes in order to pass a law, and instead changing the filibuster.

But when President Biden was asked earlier about this, which he notably did not mention in that written statement he had earlier, he said he wasn't prepared to make a judgment on that yet.

(BEGIN VIDEO CLIP)

QUESTION: Mr. President, should the Senate do away with the filibuster to codify Roe?

BIDEN: I'm not prepared to make those judgments now about -- but I think the codification of Roe makes a lot of sense.

(END VIDEO CLIP)

COLLINS: So he says it makes sense, but says he's not prepared to call for the filibuster to change because of that.

Of course, we know Senator Manchin, Senator Sinema do not support changing that. So it's not just the president's opinion, of course, that matters here. It's their vote that would matter as well.

We should note that, in his statement, the president did say he has called on his own staff to come up with possibilities, options to have in case this is the ultimate ruling that you get from the Supreme Court -- Ana.

CABRERA: OK, Kaitlan Collins standing by in Troy, Alabama, ahead of some remarks from the president, who is going to talk about Ukraine and weapons being sent there from the U.S.

But thank you for that update, as the president's facing more and more questions regarding this leaked draft opinion. Thank you as well, Jessica Schneider.

For much more on this, let's bring in constitutional law professor at John Jay College of Criminal Justice Gloria Browne-Marshall. She is the author of "She Took Justice: The Black Woman, Law, and Power." Also with us, CNN chief political analyst Gloria Borger and CNN legal analyst and Supreme Court biographer Joan Biskupic.

Thank you, ladies, for joining me.

Gloria Browne-Marshall, to you first.

I want to read a quote from this draft opinion that stood out to me. "The inescapable conclusion is that a right to an abortion is not deeply rooted in the nation's history and traditions."

Gloria, what is your reaction to that line?

GLORIA BROWNE-MARSHALL, JOHN JAY COLLEGE OF CRIMINAL JUSTICE: there are many rights that we enjoy today that are not deeply rooted in the country's history and traditions.

For example, racial justice is not deeply rooted in the country's history and traditions. And so equality for women is not deeply rooted. The word privacy is not in the Constitution. And so when we talk about our privacy rights, we're talking about rights that are created, court-created, based on how the U.S. Supreme Court has interpreted provisions like the 14th Amendment, the Fourth Amendment and other rights within the Constitution.

And so for Justice Alito, in this draft opinion, to pick and choose what parts of the Constitution actually support the rights that we have today is to be disingenuous, because we know that this is an activist court, that they were created based on not just generationally what they wanted to do in overturning Roe, but also created from the list that was -- that Donald Trump use to pick the newer three justices.

And so this idea that they're going to come together and decide that there is no abortion right in the Constitution means that they would have to look at so many rights we enjoy today and say, if they're not explicitly stated in the Constitution, then we shouldn't have them.

CABRERA: Joan, again, this is a draft, and the official opinion may not come for several weeks, likely June.

So what does a leak like this tell you? This is extremely rare, right?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: It is so rare. To have an opinion come out at this stage of the negotiations is essentially unheard of.

Sometimes, we will know where things are headed toward the last week of deliberations, especially in late June. We might pick up some intelligence. But to actually have a document like this at this stage is stunning. So it's quite remarkable. And I think it's actually quite disruptive. You have seen how

disruptive it is in America right now, the protests out front of the Supreme Court. People are presuming this is for real. But the truth is that there are several more weeks of negotiations. Those five votes could hold.

It could end up being as strongly worded as Sam Alito has written at this point, since the court has vouched for its authenticity. But my mantra about the Supreme Court is, often, it ain't over until it's over. But with this becoming so public, it makes it harder, I think, for the justices to do many negotiations.

And I know the chief justice did not want to go as far as these five justices to his right were. He did not want to try to overturn Roe.

[13:10:08]

One last thing I want to mention, Ana, is this court is already so bitterly divided. And we have already seen recriminations and finger- pointing break through, that I think that there will be a blame game coming up soon at the court as they try to get to the bottom of it. And they may or may never get to the bottom of it.

We don't know if this was something that was sinister, if someone was trying to influence the negotiations by making it public, or it could be somebody who left a briefcase on the train. You just don't know how this came about, Ana.

CABRERA: But the truth here is that there's so much secrecy involved in what happens inside the Supreme Court and in the lead-up to then releasing their opinions.

Joan, this whole concept of the Supreme Court having secrecy on the level of like the CIA is kind of intriguing to me. Why is that? Why not more transparency to allow for public accountability?

BISKUPIC: Oh, there are so many ways they could be more transparent and inspire more confidence.

Leaking -- not -- I don't know if how it was leaked, but disclosure of an opinion at this stage is not a way to inspire confidence. But they could -- they have all sorts of problems with lack of transparency, as you noted, in terms of conflicts of interest, in terms of orders that often come out late at night, with no explanation that are almost as big as a ruling on the merits.

So this court is deliberately secretive. And then to have something like this happen just flies so much in the face of their kind of ultra control of things. They don't they don't like to tell us when they go take -- make speeches. They don't like to tell us about their health.

And then, as I say, this is such an extreme example that I don't think anybody in the media would be pushing for a document that's clearly part of the deliberative process, the internal deliberative process to come out. But it's almost like, when they huddle so much and keep so many things from us, that puts a lot of pressure on the institution. And I know, as someone who's always trying to get justices and others

to talk about things, the secrecy does seem to be a motivator for many of us.

CABRERA: Gloria Borger, there's now the question of what comes next.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Right.

CABRERA: Republican Senators Lisa Murkowski and Susan Collins have previously supported legislation to codify Roe v. Wade. Would a renewed push in the Senate have any chance of bipartisan support?

BORGER: Well, Susan Collins today, in fact, said: I think we're going to try and do this again, and maybe we'd have more bipartisan support.

But I think she's dreaming. I think she won't have more bipartisan support, and the only way to do it is to get rid of the legislative filibuster, which you heard the president say he's not ready to do that. And, of course, people are saying, look, if you got rid of the legislative filibuster for abortion, then, if the Republicans were to take control, they're going to use it in the way they want to use it, so why would you do that now?

But let me just say that both Susan Collins and Murkowski publicly are saying now that they effectively feel double-crossed.

And let me just read to you something from Susan Collins' statement which kind of oozes anger, if you ask me.

She said: "If this leaked draft opinion is the final decision and the reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in their meetings in my office. Obviously, we don't know each justice's decision and reasoning until the Supreme Court officially announces its opinion in this case."

But you can see how she feels. And Murkowski said, look, this is not the decision or the direction I believed the court was going to take. And then when someone asked her, OK, what do you do with it, she said, I haven't processed it yet, that she's kind of trying to figure out how to process what she was told vs. what actually happened.

CABRERA: And based on what you just read, I think it's really important that our viewers are hearing for themselves what was said at those confirmation hearings.

So, take a listen to what the three justices appointed by former President Trump's that about Roe v. Wade during those hearings, as well as what even Justice Alito said during his confirmation hearing on this very issue.

(BEGIN VIDEO CLIP)

SEN. AMY KLOBUCHAR (D-MN): Is Roe a super precedent?

AMY CONEY BARRETT, U.S. SUPREME COURT ASSOCIATE JUSTICE: How would you define super precedent?

And I'm answering a lot of questions about, Roe which I think indicates that Roe doesn't fall in that category. And scholars across the spectrum say that doesn't mean that Roe should be overruled, but, descriptively, it does mean that it's a not a case that everyone has accepted and doesn't call for its overruling.

[13:15:04]

BRETT KAVANAUGH, U.S. SUPREME COURT ASSOCIATE JUSTICE: As a judge, it is an important precedent of the Supreme Court. By it, I mean, Roe v. Wade and Planned Parenthood vs. Casey, been reaffirmed many times.

Casey is precedent on precedent, which itself is an important factor.

NEIL GORSUCH, U.S. SUPREME COURT ASSOCIATE JUSTICE: A fetus is not a person for purposes of the 14th Amendment. And the book explains that.

SEN. RICHARD DURBIN (D-IL): Do you accept that?

GORSUCH: That's the law of the land. I accept the law of the land, Senator, yes.

SAMUEL ALITO, U.S. SUPREME COURT ASSOCIATE JUSTICE: There needs to be a special justification for overruling a prior precedent.

(END VIDEO CLIP)

CABRERA: Gloria Browne-Marshall, how do you square what they said then with what we're reading in this draft opinion now?

BROWNE-MARSHALL: Politics.

I give credit where credit is due. Conservatives have been on a now near 50-year journey to overturn Roe vs. Wade when it was decided in 1973. And so we see that conservatives think generationally about a number of these issues.

And they were hiding in the cut, as they say, and waiting for the right moment, and this is the right moment for them to do what it is they'd already planned to do.

CABRERA: Well, I appreciate all of you.

Gloria Browne-Marshall, Gloria Borger and Joan Biskupic, thanks for the perspective on this huge story.

And we will have much more on the impact of this Supreme Court leak just ahead.

Plus, we will take you live to Ukraine, where Russian shelling is complicating a painful effort to evacuate civilians from a battered steel plant in Mariupol.

And COVID cases are up again in the U.S. among both adults and kids. And the nation's biggest city just raised its threat level. What does this mean? And what should you do about it? We will discuss.

You're live in the CNN NEWSROOM.

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[13:21:08]

CABRERA: Civilians evacuated from a battered steel plant in Mariupol people are now arriving in Zaporizhzhia, an area still controlled by Ukraine.

But even as the evacuations continue, have a look at this. That's video of pro-Russian forces firing rockets again toward the steel plant in Mariupol, even though we're told more than 100 civilians still remain inside. And to the west, in Odessa, Ukraine says a Russian missile strike on a dormitory killed a 14-year-old boy and wounded a 17-year-old girl.

Ukraine's President Zelenskyy says 220 children have been killed since the start of the Russian invasion.

CNN's Nick Paton Walsh joins us now in Zaporizhzhia.

Nick, what are you hearing from these evacuees who are finally arriving there?

NICK PATON WALSH, CNN SENIOR INTERNATIONAL SECURITY EDITOR: Yes, look, I should point out, Ana, that these are small numbers.

But the symbolism of managing to get people out of the Azovstal steel plant is enormous. And days have awaited their arrival. This afternoon, finally, five buses turned up. And we actually recognized from videos of people being pulled out of the rubble, under which the basement had been in the Azovstal steel plant, a couple of people.

Olga, in her 70s, 78, I think, she was carrying two plastic bags of her possessions and a head torch around her neck. That's the kind of life they'd been living there in pitch black, saying she found the sun still hard to stand after it had been so long since she's seen it.

And also too Valentina with her 6-month-old son, Sviatoslav, saying how he'd spent a third of his life in the two months they'd spent in that basement since the war began, talking how Ukrainian soldiers had even managed to get them diapers when needed, and if they had to heat water for her son, they had used the candle to do so.

She still said she was terrified of hearing the noise of an aircraft, because that's what brought the bombing that shook their world for so many weeks down there.

But this first arrival of evacuees so important, because it had been engineered by the United Nations and the Red Cross with a lot of high- level political discussions to see if this could indeed happen. But there are many still inside the Azovstal steel plant. In fact, some of the people who came out talked about that, in their own chamber, there were perhaps dozens and there may be many chambers in the huge cavernous area of that factory, hundreds, possibly according to Ukrainian officials.

The broader hope, though, Ana, had been that this use of the U.N. and Red Cross to get the Russians to open up a route might lead to thousands coming out of Mariupol in the days ahead.

I have to tell you, the complexity of just getting these five buses out seemed pretty immense. That lowers hopes, I'm sure, for a broader, wider-scale evacuation, but still immense joy in the face of those who got out today, Ana.

CABRERA: It is bittersweet, absolutely, to see so few people getting out, but at least those folks made it out.

Nick Paton Walsh, thank you.

All eyes are now on the date of May 9. That is Victory Day in Russia, marking the defeat of the Nazis in World War II. And U.S. officials and other world leaders are saying that Putin could use that date, that moment to make one of several big moves.

According to U.S. and Western officials, Putin could formally declare war on Ukraine. Right now, the Kremlin is still calling this invasion a special military operation. And Putin could also declare the annexation of all or part of Eastern Ukraine. This is according to a U.S. ambassador to Europe.

And then there's this from Pope Francis. He says Hungary's prime minister informed him that Putin intends to officially end the invasion on that day.

CNN military analyst and retired Air Force Colonel Cedric Leighton joins us.

Now, Colonel, come May 9, which of these scenarios do you think is most likely?

COL. CEDRIC LEIGHTON (RET.), CNN MILITARY ANALYST: That's a really good question, Ana. It's -- this is a get into Putin's head moment in history here.

[13:25:04]

But I think that the most likely event would be that he would declare victory. But that does not preclude the possibility of the other elements here. The idea of declaring war, of course, would be quite extraordinary. And it would potentially open things up to a much more broader front.

So I think my hope is that he declares an end to things. But, on the other side of it, I think we have to be prepared for him to go in the other direction, to actually create a situation where he feels he has declare war, because that opens up a whole bunch of other possibilities for him as well.

CABRERA: What kind of possibilities would that open up? Because I think a lot of us look at what's happening and think, hasn't he already essentially declared war, if it isn't that he is calling it that?

But does it change things actually on the battlefield if he makes a formal war declaration?

LEIGHTON: Well, it does in a legal sense, because you're right.

When you're being shot at, it's as bad if you're in a declared war and an unending undeclared war. It's a very bad situation regardless. And that's clearly what's playing out there. But if he does declare war and gets the Russian Parliament, the Duma, to declare it, then he can call up the reserves.

And that means that conscription, then, instead of being a yearly cycle, could potentially be an all or -- an all-in type situation, where every eligible male in Russia gets called up to serve in the military. So, that would mean that there would be a whole (AUDIO GAP). That would also create some difficulties, I think, logistically for the Russians.

But that's kind of their way of war, is to provide a mass of troops for a particular situation. In this case, the situation, of course, would be Ukraine.

CABRERA: Colonel, we have new reporting on the current state of Russia's military forces. Take a listen to Pentagon spokesperson John Kirby.

(BEGIN VIDEO CLIP)

JOHN KIRBY, PENTAGON PRESS SECRETARY: While it's still a lot, he's about 75 percent or so of the combat power that he once had that he still has.

So it's not like he hasn't been depleted. And it's not just about the stuff, Brianna. It's about the skill and the organizational ability, the command-and-control, the ability to integrate ground and air. The Russians have not overcome the challenges that they had early on this war.

I mean, when they were all going to Kyiv, everybody was predicting Kyiv was going to fall in a couple of days. And it didn't. And one of the reasons it didn't was because the Russians couldn't get their act together, and they are still struggling in the Donbass.

(END VIDEO CLIP)

CABRERA: Colonel quick answer, please.

If Russia still has 75 percent of its firepower, how are you looking at this?

LEIGHTON: Well, I think it's still very dangerous in the east for Ukraine.

I think the Russians have significant challenges, as Admiral Kirby mentioned, but this means that the difficulties that they have, they will try to overcome with brute force. And that will create possibilities for the Russians to move forward, regardless of their lack of capability, lack of command-and-control, and their, frankly, lack of motivated troops.

CABRERA: Colonel Cedric Leighton, as always, thank you so much.

The leak of the draft decision overturning Roe v. Wade throwing a big curveball ahead of the first primary races of the midterms. We will take you live to Ohio, where a fierce battle is playing out over former President Trump's political power.

Stay with us.

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