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Crowds Gather at Supreme Court after Leaked Roe Draft Opinion; U.S. Believes Russia Could Declare War as Soon as May 9. Aired 6-6:30a ET

Aired May 03, 2022 - 06:00   ET


BRIANNA KEILAR, CNN ANCHOR: Good morning to viewers here in the U.S. and around the world. It is Tuesday, May 3. I'm Brianna Keilar with John Berman.


And Roe v. Wade on the brink. Stunning news out of the Supreme Court this morning. The nation's highest court poised to strike down a law nearly 50 years old that would result in a staggering change in American life.

"Politico" obtaining and publishing a draft of a Supreme Court opinion indicating the landmark 1973 decision that legalized abortion nationwide could be overturned. The leak of the document striking in the modern history of the high court.


UNIDENTIFIED FEMALE: When abortion rights are under attack, what do we do?

UNIDENTIFIED FEMALE: Stand up, fight back!

UNIDENTIFIED FEMALE: Stand up, fight back!

UNIDENTIFIED FEMALE: Stand up, fight back!


UNIDENTIFIED FEMALE: Stand up, fight back!

UNIDENTIFIED FEMALE: Stand up, fight back!

UNIDENTIFIED FEMALE: Stand up, fight back!


UNIDENTIFIED FEMALE: Stand up, fight back!

UNIDENTIFIED FEMALE: Stand up, fight back!

UNIDENTIFIED FEMALE: Stand up, fight back!

(END VIDEO CLIP) JOHN BERMAN, CNN ANCHOR: As you can see the news drew demonstrations overnight at the Supreme Court. People were on the ground, crying. At times, protesters did clash with one another.

There has never, ever been a week like this from the Supreme Court. But the impact of the looming decision is of much greater consequence. It could almost instantly criminalize abortion for millions of women. And it raises questions about the future of other Supreme Court rulings, including on same-sex marriage, even contraception.

KEILAR: Let's go now to CNN's Jessica Schneider, first out of the gate for us here live outside of the Supreme Court with the very latest -- Jess.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Brianna, a monumental and consequential decision by this court if this opinion is ultimately released. And in the meantime, this is a stunning breach of secrecy for this court that never even gives a hint of its opinions before decision day.

But "Politico" reporting that, in fact, Justice Samuel Alito has drafted this opinion, completely eliminating the Constitutional right to an abortion that was established by this same court back in 1973 in Roe v. Wade.

So "Politico" writing that this is part of the draft here: "We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

Now, Brianna, "Politico" is reporting that this is a 98-page draft, written by Justice Samuel Alito and joined by four other conservatives -- Justice Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Now, this is just a draft. It has not been authenticated by CNN. The court has had no comment. And of course, it's possible that a justice could change their mind.

This draft opinion was apparently circulated back on February 10th. Things may have changed since then. A justice may have changed their mind.

But if this were to stand and be released in the coming weeks, likely before July 1, this would be a 5-4 decision that overturns Roe v. Wade.

And this would have an immediate and consequential impact across the country, Brianna. We've already seen some governors reacting over Twitter. So last night, we saw the Democratic governor of California, Gavin Newsom, tweet this, saying, "Our daughters, sisters, mothers, and grandmothers will not be silenced. The world is about to hear their fury. California will not sit back. We're going to fight like hell." And then, Brianna, on the flip side, we saw a tweet from Republican

governor of South Dakota, Kristi Noem. She tweeted this. She said she would "immediately call for a special session to save lives and guarantee that every unborn child has a right to life in South Dakota."

So, you know, even before this news, we saw a flurry of Republican-led states already enacting legislation that would either ban or severely restrict abortion.

In recent weeks, in fact, Oklahoma has been at the forefront. Just last week, lawmakers passed a six-week ban, but they also passed an all-out ban just before that. That's set to go into effect in August.

So Brianna, we're already seeing states, even before this draft was leaked, expecting that maybe the court might overturn Roe v. Wade, and if this draft holds -- we will see in the coming weeks but if it holds -- it would, in fact, eliminate the constitutional right to an abortion and return the power to decide if women can get an abortion to the states themselves -- Brianna.

KEILAR: Yes, without any major changes here, this will make this current court the most consequential court in decades. And I wonder what the chief justice's thinking is on all of this.

SCHNEIDER: Well, we have reporting on this. Our own Joan Biskupic had sources last night tell her that the chief justice would dissent from this opinion completely overturning Roe v. Wade.

But the chief justice -- and we noticed it at oral arguments -- he seemed to be trying to strike somewhat of a compromise. We've learned, Joan Biskupic has learned from sources that the chief would, in fact, uphold a 15-week ban. Because remember, that's what's at issue here.

This case was from December 1. Mississippi passed a law banning abortions at 15 weeks. The justices could potentially, if Chief Justice John Roberts got his way, say that this particular Mississippi law was OK and revised court precedent a bit. It would still be monumental, but it wouldn't completely overturn Roe.

That seems to be what the chief justice is pushing for. But as we've seen in this draft opinion, these five justices, led by Samuel Alito, want to go all the way and overturn Roe v. Wade -- Brianna.

KEILAR: Yes. Total repudiation of Roe v. Wade, very clear in this draft opinion. Jessica Schneider, live for us at the Supreme Court. Thank you so much.

BERMAN: All right. Joining me now is CNN legal analyst Jennifer Rodgers and CNN chief legal analyst Jeffrey Toobin.

Let me read, again, from this ruling, which is history-making. I mean, generationally history-making here. It says, quote, "We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision." [06:05:08]

Again, it's a draft, but if this comes out in two months, as we have every reason to expect it will this morning, this changes what?

JENNIFER RODGERS, CNN LEGAL ANALYST: This changes everything in terms of abortion rights for women. I mean, it means that the states get to decide. Right? So women in about half of the states in the United States of America, abortion will be, at the moment this opinion is released, for those who have already tried to pass legislation like this or soon will be, in other states. Around 22 to 26 states will be illegal as soon as the summer.

BERMAN: I think we have a map. We can throw that out so people can see in terms of the impact this will have almost immediately. It does kick it back to the states. And supporters of this decision, Alito, note that it doesn't ban abortion federally, but it allows states to decide. And about half the states have already decided they want to ban it or restrict it.

We'll find that map and put it up for you in a second.

Jeffrey, I want to read, again, from this, because the significance of this -- there's the map so people can see that. It's where abortion could be banned or restricted.

Almost immediately when this decision comes out, Jeffrey, Alito writes in this draft, Roe was "egregiously wrong from the start." He then goes on to say it was exceptionally weak. Those words are crucial here for him in the case that he's making. Why?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Because the right that is described in Roe v. Wade is -- the basis is the right to privacy, which is implicit, according to Roe v. Wade, in several different constitutional provisions. It's the same right, the right to privacy, that the court recognized in saying states can't ban married couples from buying birth control.

It's the same provision that they said states can't ban consensual sodomy between people of the same sex, or different sexes. That there are certain regions of people's lives that the legislatures may not legislate in. This is a constitutional right.

What Justice Alito's opinion -- draft opinion says is that there is no such thing as a right to privacy. So, abortion is not protected. Private sexual matters are not protected. Purchase of birth control is not protected by the Constitution.

So that opinion is an invitation, not just for states to ban abortion, but for states to regulate in entire new areas that previously had been off-limits.

BERMAN: I want to come back to that idea of throwing open the entire idea of a right to privacy. But first, stare decisis, the idea that things have been decided before have been decided in finality. What he's also doing here is saying, Nuh-uh in this case. There are other things that have been decided incorrectly, egregiously so in the past. That's why he uses that word "egregious," right?

TOOBIN: That's right. And you know, the Supreme Court almost always honors precedent. But it doesn't always honor precedent.

Perhaps the most famous example was in 1954, Brown v. Board of Education overturned a decision from the late 19th Century that -- Plessy v. Ferguson, where the Supreme Court said in 1954, no, states cannot have separate schools for black people, and white children and black children.

So, there is some history of the court overturning precedent. It's rare. It's exceptional. And it is done only when a majority of the court feels like the prior precedent is completely discredited.

You know, the court recognizes if they overturn precedence a lot, the court loses all intellectual and institutional respectability. The difference between the Supreme Court and the Congress is that the court is supposed to be a continuing body that respects its history. There's no requirement that Congress pass laws consistent with prior laws at all. That's what makes the court different in theory, but with decisions like this, it becomes more like Congress.

BERMAN: Justice Alito apparently, anticipating your criticism, or your analysis, the idea that this throws open the right to overturn anything decided on the basis of a constitutional right to privacy. He writes, Jennifer, "The abortion right is also critically different from any other right that this court has held to fall within the 14th Amendment's protection of liberty. Roe's defenders characterized the abortion right as similar to rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage. But abortion is fundamentally different," he says, "because it involves an unborn human being."

So he writes that in this draft decision. Does that mean that same-sex marriage is safe?

RODGERS: No, not at all. I mean, where is that in the Constitution? I mean, talk about what is and isn't in the Constitution. This notion that the difference between all these privacy rights is that one involves an unborn being, whether you call it a child, a fetus, whatever, that's nowhere either.

So this is just semantics. I mean, he's just trying to distinguish abortion from these rights, because he knows people are going to go crazy and say, well, what about gay marriage? What about all this other stuff?


But anything that is based on this right of privacy, and all of these things have been, traditionally, by the court since the 1960s, are now in jeopardy.

TOOBIN: And, Berman, there's another point to make about this opinion. You know, the -- the theme of the opinion is, We'll let the states decide. The other part that is implicit in that opinion is Congress. If

Congress wanted to ban abortion tomorrow and the president wanted to sign it, I don't see anything in that opinion, draft opinion that would stop Congress from doing this.

So, the idea that, oh, well, this only affects the red states, that's not true. This is an invitation, in 2025, if there's a Republican House and a Republican Senate and a Republican president, which is certainly more than possible, that Congress could ban abortion in the entire country. That's invited in this opinion, as well.

KEILAR: This is -- this is, of course, the effect of former President Trump nominating three conservative justices and seeing this sea change in the court.

Let's go back and look at what they said in their confirmation hearings about this.


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

JUSTICE AMY CONEY BARRETT, SUPREME COURT: How would you describe super precedent?

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.

JUSTICE BRETT KAVANAUGH, SUPREME COURT: As a judge, it is an important precedent of the Supreme Court. By it, I mean Roe v. Wade in Planned Parenthood v. Casey. And reaffirmed many times. Casey is precedent on precedent, which itself is it an important factor.

JUSTICE NEIL GORSUCH, SUPREME COURT: Senator, as the book explains, the Supreme Court of the United States has held, in Roe v. Wade, that a fetus is not a person, for purposes of the 14th Amendment. And the book explains that.

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

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


KEILAR: Jennifer, how have those answers aged?

RODGERS: Well, not well, Brianna. I mean, you know, here's the thing. Had the court ended up doing -- and I suppose it's still possible they will, but not according to this draft opinion, what Justice Roberts apparently wants to do, which is to uphold this law but still leave Roe in place, then you could say that they're not being that intellectually honest, right? They let it stand. But they did nothing here other than to look back at Roe and say, Hey,

we think it's wrong. And if they couldn't read it when they went through their confirmation hearings. You know, they said that it was the law of the land and that it should stand. And yet, now they have overturned it.

So we know that this confirmation process is a parlor game and that what they say doesn't mean a whole of a heck lot when you get to sit on the bench with the robe, but what they said and what they appear to be doing today are entirely inconsistent.

KEILAR: What do you think, Jeffrey?

TOOBIN: Well, you know, when Donald Trump ran for president, he said this in one of the debates with Hillary Clinton. It wasn't, like, some big secret. He said, I am going to appoint justices to the Supreme Court who will vote to overturn Roe v. Wade.

And a lot of people said, Oh, well, maybe -- you know, that's just politicking. That is precisely what he has done, or so it appears from this opinion.

And, you know, he had three -- three appointments to the court. He only had one term in office. Jimmy Carter had only one term in office. He had zero appointments. Donald Trump had three. Luck of the draw for him.

But this was not a secret. This was not something that is being sprung on the American people. This was on the ballot in 2016, and the American people voted for the candidate who will said he would vote to appoint justices to overturn Roe v. Wade. And that is exactly what Donald Trump did.

BERMAN: And very quickly, the fact of this leak here, we've never seen anything like this, Jeffrey.

TOOBIN: I mean, you know, I've covered the court for pushing 30 years now. This is so outside the history of the Supreme Court. There have been very occasional leaks of votes in cases. You know, the court is going to vote a certain-certain way. But a draft opinion has never been released.

And a draft opinion in a case of monumental significance. This is going to damage the institution of the Supreme Court, regardless of what you think about abortion. This was already an institution that was much less popular than it used to be. But the manner in which this has come into public view is a real indictment of how this court operates.

BERMAN: Jeffrey, Jennifer, thank you both for helping us understand this historic moment.

So Vladimir Putin expected to formally declare war on Ukraine in less than two weeks. How that announcement could dramatically change the conflict.


KEILAR: Plus, inside the Alabama jail where a missing female deputy is now charged with helping a capital murder suspect escape.


BERMAN: Major developments in the Russian invasion of Ukraine. U.S. and Western officials say that Vladimir Putin may be preparing to formally declare war on Ukraine. This move would enable the full mobilization of Russia's reserves forces.

Unless now, Putin has only called the invasion a special military operation.

The major activity in this war, obviously, current in the Eastern part of the country. The Ukrainian military reports that 12 Russian attacks in the past five days have been repulsed in the Luhansk and Donetsk regions.


The Ukrainians also claim they've shot down seven attack drones. They also say they've taken back control of several settlements to the North and East of Kharkiv. That's up here in this area, right here.

According to the Pentagon, Ukrainian troops have pushed Russian troops 25 miles to the East of Kharkiv over the last 24 to 48 hours.

KEILAR: And in the port city of Odessa in Southern Ukraine, a Russian missile strike hit several buildings, including a church and a dormitory. Ukraine's president says that a 14-year-old boy was killed and a 17-year-old girl wounded.

In Mariupol, Russian forces are also relentlessly bombarding the area.




KEILAR: This is brand-new video, Russian-backed forces firing grad rockets in the direction of the Azovstal Steel plant, despite knowing that scores of civilians are still sheltering inside, some of them hoping to escape.

The Ukrainian military says it killed five Russian soldiers as they attempted to assault the facility.

And moments ago, we spoke to the mayor of Mariupol. He told us a convoy with some of the plant's evacuees is moving toward Ukraine-held territory. He is less optimistic about the civilians, though, still trapped in the facility. We'll have more on that ahead.

Let's go live now to Lviv, Ukraine, and bring in CNN's Isa Soares for the very latest on what we're seeing there today. Isa, what can you tell us?

ISA SOARES, CNN INTERNATIONAL CORRESPONDENT: A very good morning to you, Brianna.

Let me start with what we're hearing from U.S. and Western officials, warning, of course, telling us that President Putin could officially declare war on Ukraine by May the 9th. This is a key date, of course.

Until now, what we've heard from President Putin is that the de- Nazification, of course, of Ukraine, this is their main goal. We've also heard from them that this is a special military operation.

So by declaring it war, officially a war, what President Putin could potentially be doing is adding, creating more propaganda value to this war.

And in turn, what officials are telling us it could mean more mobilization of forces and, indeed, an escalation of hostilities. That is the real fear on the ground.

I can tell you from people I've been speaking to, the generals, that they're telling me that generals, Russian generals are worried, or under pressure, I should say, for -- to create some sort of win, to hand Putin some sort of victory for that day. Something that Putin can sell, of course, to -- to Russia.

But that doesn't end there, Brianna. There are further concerns about what Putin may have in the works. Have a listen to what the U.S. ambassador to the OSCE had to say.


MICHAEL CARPENTER, U.S. AMBASSADOR, ORGANIZATION OF SECURITY AND COOPERATION IN EUROPE: According to the most recent reports, we believe that Russia will try to annex the Donetsk People's Republic and Luhansk People's Republic, and quote, so-called, to Russia. The reports state that Russia has plans to engineer referenda on joining Russia sometime in mid-May. And that Moscow is considering a similar plan for Kherson.


SOARES: In the meantime, in terms of Mariupol, you mentioned there. I know you've spoken to the mayor of Mariupol. All eyes still on the besieged city of Mariupol, Brianna, as we try to find -- see for any evacuation taking place today.

We've been told the evacuations for today are expected to be to the city of Mariupol itself. We are waiting to find out when people will start leaving, of course.

Remembering there's 100,000 people that have been looking for sort of safe passage in Mariupol.

And then many questions remaining regarding that Azovstal Steel plant and when people, civilians, will be able to get out again. It is a very confusing picture. As soon as we have more, of course, we shall bring it to you, Brianna.

KEILAR: All right. Isa Soares, thank you so much. Live for us in Lviv. We appreciate it.

And ahead, we'll be joined by Pentagon press secretary John Kirby.

BERMAN: And joining me now, retired Army Major Mike Lyons. Major, great to have you here.

Look, May 9th, there's a big parade in Moscow. It's Victory Day, celebrating, you know, their victory over the Nazis in World War II. It is on that day that U.S. and Western officials now say that Vladimir Putin might declare formal war. Not just a special military operation, allowing to have the full mobilization of Russian forces in this invasion.

You know, what does that do for him? What does he gain by a full mobilization?

MAJ. MIKE LYONS (RET.), U.A. ARMY: First and foremost, he needs troops right now. He started with about 120,000 troops in this special operation. We know about 25 percent of them have been virtual destroyed. He's down to 90 battalion tactical groups, and he's not done any offensive advancement within this region here.

So he needs troops. And he can mobilize this Russian Reserve, Russian National Guard, so to speak. But the dirty little secret is they're not that good. They've been conscripted in the past, maybe for a year. They've been on active duty for a year. And then they've lost -- and then they go back to their hometowns, because that's all their contracts are for. There's no NCO corps to train them on.


So literally, you're going to have young men from Belgorod or other places that are probably close to the border are going to get a letter from the Russian government, say show up at this unit, where they've be thrown into the fire right away, and likely thrown into the fodder, because the Russian military has been so unsuccessful.

BERMAN: And the other piece of news we've just heard there is that maybe Vladimir Putin wants to just say, OK, this region right here, Donetsk and Luhansk, they're part of Russia tomorrow, basically, in the middle of May.

What's the effect of that?

LYONS: Well, those are two areas that were mostly occupied by the separatist forces before February 24, before the conflict started, so he could claim some kind of victory there.

It still is not going to stop, I don't believe, the Ukraine government from eventually going on the offensive to try to take them back. At a minimum, conducting the guerrilla operation forces, the kind of things we saw around Kyiv that allowed the Russians to retreat from there. BERMAN: We're talking about -- I can put this on the map also --

Kharkiv right here. The Ukrainian government now talking about success.


BERMAN: A lot of success around this city. This is a city that has always remained in Ukrainian control. Russia thought it would be one of the first cities to fall, because it's so close to the border. The Ukrainians have maintained control, and now you can see here in the yellow areas, getting back some of the area around the city that the Russians had occupied.

LYONS: Yes, and here's the key to that. They've gotten back now enough range from artillery's perspective that the city should be safe from too broad artillery, indirect fire coming from Russian artillery, which is what -- what they like to do the best.

So, that's the key. They've pushed them so far out that the city is now going to not likely see a lot of bombardment from artillery.

And the fact that they can even just go on the offensive against these Russian troops, who this is their M.O. They get into a town like that, they claim victory. They've done it in some of these other towns along that salient there. They claim victory, and then they leave for whatever reason. They can't hold any places, because they just don't have the soldiers.

BERMAN: Again, just to reiterate that point, just because the Russians are somewhere now, these areas in red, you're saying doesn't mean they can stay there?

LYONS: No, well, it means that they -- they don't do that. They leave. They claim victory, and they go. Because they recognize they can't hold it. The logistical supply lines aren't long enough to support them in those places. But it allows them to get that propaganda victory. But in all those cases along that salient there, they've not hold them.

BERMAN: Major Mike Lyons, great to have you here. Thank you so much for your help.

LYONS: Thanks.

BERMAN: All right. We are following major news out of the Supreme Court. This incredible scoop that suggests a majority of justices will vote to overturn Roe v. Wade, the landmark decision that legalized abortion. We're trying to get response from the White House. Stay with us.

KEILAR: Plus, it is primary day in Ohio and the first real test of Donald Trump's influence on the GOP.