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Supreme Court Poised to Strike Down Roe V. Wade in Draft Opinion; CNN Reports, U.S. Believes Putin May Declare War As Soon As May 9th; Pentagon Says, Ukrainian Troops Push Back Russian Forces East of Kharkiv. Aired 7-7:30a ET

Aired May 03, 2022 - 07:00   ET


JOHN BERMAN, CNN ANCHOR: The co-author of the Politico piece that broke this news, Josh Gerstein.


Josh, this is a scoop of a lifetime and a decision that will have repercussions potentially for generations. Let me just read you the draft of the decision that you obtained, quote from Samuel Alito, 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.

The impact, Josh, of those words?

JOSH GERSTEIN, SENIOR LEGAL AFFAIRS REPORTER, POLITICO: Yes, John, good morning, When we read those words, I have to say, when I first read them, you kind of stop in your tracks. It's a very bold statement. It's talking about reversing a half century of precedent here in the United States, guaranteeing women across the country and every state of the nation, at least in theory, the right to an abortion. And to see those words, it's very stark, I think, to read them.

It is stunning when you first do so. It's surprising, I think, to see it in this format that looks a lot like a final Supreme Court opinion. But I do think, John, if you step back and you think about the decades-long effort by conservatives and conservative legal activists, to build up their numbers on the court, you think about the fact that former President Donald Trump managed to get three nominations and confirmations of very conservative justices to the Supreme Court, in part, because of maneuvers by Senator McConnell and others. In that sense, maybe it's not that surprising. You could say this has been a long day coming the despite the way the words strike you when you first read those.

BERMAN: It is the culmination of efforts, as you say, decades in the making that accelerated in new ways over the last several years and the impact is very, very real. By some estimates, we can put up a map, I think, so people can see, this would -- if this draft opinion becomes the real opinion, this means that these states seen in red there would almost immediately outlaw or severely restrict abortion rights and the ones in yellow could potentially do the same, so it would have a very large impact.

Josh, before we get much farther on this, just let's make clear exactly what you obtained and the significance of the fact that you have this draft opinion. What is a draft opinion?

GERSTEIN: So, when the Supreme Court hears arguments in a case, usually within one, two or three days after that, they have a closed- door private conference, only the nine justices inside that conference room, very secretive room at the Supreme Court. And each of them basically lays out their position on each case. And at that point, there's an effort to assign a majority opinion.

Typically, the majority opinion is assigned by Chief Justice John Roberts or whoever the chief justice at the time is, if he is in the majority, and if not, it's the most senior of the other justices who's in the majority. And our understanding is that what happened in this case is that the opinion was assigned to Justice Samuel Alito. And he and his clerks have spent or spent the two months or two and a half months between the arguments in December and mid-February, preparing this opinion. It's 67 pages in text and then a 31-page appendix that was circulated at the court as a proposed majority opinion.

According to a person familiar with the court's proceedings, this appears to have the support of five of the six Republican-appointed justices on the Supreme Court, essentially all of the justices of the conservative persuasion on the court, except for Chief Justice John Roberts. That's our best understanding of the situation.

And we should make clear to viewers, it is a draft. It is labeled as a first draft right on it. And, therefore, it could change before late June, which is typically when the Supreme Court releases its opinions and its most controversial and contentious cases.

BERMAN: It could change right up until the last minute. At the same time, based on your reporting and others, there isn't necessarily a reason to believe that it would change substantively but we'll wait and see.

Josh, I want to read more from this, again, because the language is so important. In your piece, you point out exactly why Samuel Alito writes in this draft, Roe was egregiously wrong from the start. Why is that wording so important in the overall argument has made?

GERSTEIN: Well, so, the reason that Alito's language is so tough and just so almost contemptuous of the ruling that was issued in 1973 is that I think he felt he really needed to build up ahead of steam here to justify overturning precedent. You know, there is this presumption on the Supreme Court that its previous decisions were decided correctly and that they don't rightly overturn opinions that they've issued in the past, especially on matters of wide concern to the American public.


This is not some trivia area of business or tax law. This is an issue that affects, you know, tens of millions, maybe more than 100 million Americans.

And so what Alito tries to do here is to almost ridicule the Supreme Court's opinion in Roe v. Wade from 1973, which paints it as so trivial and so poorly reasoned that the court should not have qualms about striking it down. And that language about being egregiously wrong is very interesting if you trace it back in recent opinions the court, that's the kind of thing that debuts, for example, to overrule Plessy versus Ferguson, which was separate but equal in terms of racial discrimination.

So, he's tried to linked it to a series of episodes in the past where the court has said, you know, we got an issue deeply, deeply wrong. Alito is saying we did it again. And it looks like he may well have a sufficient number of conservative allies on the court to make that the prevailing opinion unless votes change. It may not just be wording. It is possible to see votes change and we've seen that in very high- profile cases.

BERMAN: You raise a great point. Yes, votes could change but wording could certainly change. When we're talking about this language here, some of this language could change in ways that does substantively alter perhaps the meaning of all this.

There are those looking at this, Josh, again, raising questions about, well, is this ruling, as written in this draft, does it only have an impact on abortion or could it have an impact on other decisions decided from the '60s, really in the '60s and the '70s, that found a certain right to privacy, starting were with contraception, starting with interracial marriage, all the way up until same sex marriage. Alito seemed to anticipate that criticism, didn't he?

GERSTEIN: Right, he tries to kind of ring-fence abortion in this opinion and repeatedly says, we're only talking abortion here. This decision has no impact on any of those other decision, which critics have said are based on more broad and vague themes in the Constitution. Arguably, the word privacy not really appearing there, obviously, the word abortion not appeared in that document drafted in the 18th century.

But the question is can you pluck abortion out of our jurisprudence and say we're going to get rid of this right that we've had for a half a century and leave all those other things you mentioned of like contraception, for example, or the right to marry someone of a different race. Can you just say that those things are all going to remain and we just pull this one thing out? And you can even bring it forward to more recent decisions, for example, guaranteeing a right to same sex marriage based in part on the same kinds of principles that it's really no business of the government whether you choose to marry someone of the opposite sex or the same same-sex.

Will you about able to separate these issues and put abortion in a different box? This opinion, he refers to it as decision concerning potential life, and that those other kinds of issues don't involve potential life. But, obviously, many Americans might disagree. And I suspect that the dissents you'll see in this case are going to really zero in on that question, could this decision have a more dramatic impact despite the assurances that Alito tries to give in this draft opinion.

BERMAN: Josh Gerstein from Politico, we're on the precipice of what looks to be a historic moment and this is a scoop unlike any we have never seen before. We appreciate you, as always, and we appreciate your work, Josh, thank you.

GERSTEIN: Thanks, John. Good to be on with you.

BRIANNA KEILAR, CNN ANCHOR: Let's bring in CNN Political Commentator Jonah Goldberg, co-Author of the Early 202 Newsletter at The Washington Post Leigh Ann Caldwell, and CNN Supreme Court Analyst Joan Biskupic.

Jonah, to you first. What stands out in this draft opinion to you?

JONAH GOLDBERG, CNN POLITICAL COMMENTATOR: I think probably the most interesting thing is that Roberts isn't part of it, that he, as chief justice, gets to write opinion if he wants it, if he's in the majority, he's clearly not in it. And Joan is a much better expert on some of this stuff than I am. But that's one of the things that stuck out to me, was that, clearly, he is trying to do -- trying to figure out, cobble together something less. There's some reporting that he wants to save the 15-week time limit for abortions, but not go full on overturning Roe v. Wade. That's what came out to me.

What comes out to me the most which is the outrageousness of the leak itself, but that's a different story.

KEILAR: We're going to touch on that here in a moment.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: And I can tell you, and this is just amazing what Josh has gotten, but he got this opinion at a very early stage in the process.

Now, it is likely that those five votes were going to hold but the chief justice, according to our reporting, was desperately trying to come up with some sort of compromise, maybe pick off a vote to do exactly what Jonah just referred to right now, uphold the Mississippi law that would prevent abortions after 15 weeks of pregnancy but not go so far as this really transformative opinion.


And this disclosure has now choked off any kind of chance of that, I think.

And so it's not only has this just shattered a half century of abortion law, of reproductive rights law of a holding from 1973 that said there is a Constitutional right for a woman to end a pregnancy, but it has also really shattered the institutional reputation of the Supreme Court. I don't know how they continue to trust each other and I don't know how the public can maintain confidence in the court given the chaos of how this has just come out.

KEILAR: I do think the objective of how this was leaked is important because it can affect the outcome, which is obviously what is dominating the conversation today. You can look at this one of two ways. Okay, was it leaked by the left to raise a red flag or was it leaked by the right to hold these justices to their position?

And I ask you that, because what really, Joan, was the possibility that these five justices right now who are on this draft opinion supporting this in the majority would have changed their vote?

BISKUPIC: Very unlikely. In fact, the reporting I was getting just like 24 hours before this happened is the two justices who might have looked most in play, Justice Amy Coney Barrett and Brett Kavanaugh were not budging. They were not budging. The chief was not making headway with them and that the five would stay.

But as to who had incentive to leak this, it is so sad -- I cannot believe that any member of the court would have leaked this. It is such a breach of protocol and a breach of trust. And in terms of law clerks, it's a killer for their career to have done this.

You know, as someone who is constantly getting milder leaks -- I mean, I just have to give it to Politico for getting this actual document. It is just so hard to get information out of them, especially at this stage. And, you know, you see right there, Brianna, how it says first draft. These things go through multiple drafts. And the language that Josh was reading, the very kind of incendiary language from Justice Alito, I bet some of that might have been toned down in the process. But now, like all bets are off.

KEILAR: Let's keep our eye, though, on what this is going to mean for abortion and those who either seek the right to have one or believe that people should not. And I wonder what the effect is going to be, Leigh Ann, some of which we've already seen, in places where obtaining an abortion has become difficult for women who want one.

LEIGH ANN CALDWELL, THE EARLY 202 AUTHOR, THE WASHINGTON POST: Yes. It's happening right now in Texas as people are having to go across state lines to get an abortion. They're taking abortion pills. That has been reported as well. And so people are still trying to get an abortion when it's not possible for them. And so when it is illegal, which, by the way, abortion rights, pro-choice groups say that -- wants everyone to know that it is still legal at this moment, that abortion is still legal. This is not a final decision yet.

But people will still try to get an abortion if they want one. That could make it very dangerous if these abortion groups warn, and it also impacts, these abortion groups also warn, is the lowest income, people with the least resources, and they are the ones who are put in the most danger.

KEILAR: Jonah, this is a sea change that is borne out of Donald Trump time in the White House, having three Supreme Court nominees. I think it's really interesting to listen to what they said during their confirmation hearings. Here it is.


SEN. AMY KLOBUCHAR (D-MN): Is Roe a super-precedent? JUSTICE AMY CONEY BARRETT, SUPREME COURT: How would you define super- precedent?

And I'm answering a lot of questions about Roe, which I think indicates that Roe didn't fall in that category. And scholars across the spectrum say that doesn't mean that Roe should be overruled, but, descriptively, it does that it's 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 and Planned Parenthood versus Casey, and reaffirmed many times Casey is precedent on precedent which itself is an important factor.

JUSTICE NEIL GORSUCH, SUPREME COURT: Senators, the book explains the Supreme Court of the United States is 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, Senator, yes.


KEILAR: How do those comments age there, Jonah?

GOLDBERG: I actually think they age fine, to be honest. Look, I'm one of these people that thinks Roe was bad constitutional law. I'm not talking about the policy of abortion, access to abortion, all that, even Ruth Bader Ginsburg thought that Roe was a fraught decision because of what it did to the politics of the country.


And the idea that, you know, Supreme Court nominees are going to say, we've learned this since Souter or Bork, you can pick your timeline, what they need to say that is factually accurate, that gives us as little as possible to political opponents to derail their nomination. So, you have Kavanaugh saying it's a precedent. It is a precedent. It still is. Right now, it's settled law.

And while I agree entirely, it's going to create all sorts of hardships in places that ban abortion. It also will, overnight, make in places like New York and California, abortion is going to be just as readily accessible as it ever was, if this goes through. It will send things back to the states where I think these debates belong in the first place.

KEILAR: Well, so, dig into that for us. Because in Alito's opinion here, he says that Roe was egregiously wrong from the start, the ruling was exceptionally weak. Explain why he's saying that.

GOLDBERG: I think he has to justify a position overturning something that a large chunk of America thinks is some sort of super-precedent, whatever that non-legal term is, where polling says there's a lot of support for Roe v. Wade. The polling game can get very dicey, because when you explain what Roe v. Wade and Casey actually allow for, support for it drops. But, generally, this country wants people to have access to abortion and this is a politically fraught thing for the court to do, so he's trying to make it as bulletproof and strident as he can but it's also a first draft. And so you never know what's going to come later.

KEILAR: I want to get Leigh Ann into this conversation here, because one of the things I was thinking when I saw this development was, wow, Democrats have really a hard time motivating voters, and I wonder if that is going to be the case now for the midterms.

CALDWELL: They've had a hard time motivating voters this entire election season. They've also had a hard time motivating voters on the issue of abortion for years and years and years. And perhaps, finally, this is the year that they're able to do it. And maybe this is what enables them to get over that lackluster voter enthusiasm that poll after poll has shown among Democrats compared to Republicans.

Now, a Republican operative I talked to last night is skeptical of that. They think that the economy is still going to win out. They think there's too many other issues that really matter to people and they're not going to vote on abortion because people usually don't. But we'll see. Democrats are fundraising off of this. It raised a lot of money just last night, hundreds of thousands millions of dollar. And so this could be a springboard for these midterms.

KEILAR: Maybe they don't. When they have the right, we'll see if it changes when they think they're not going to have that right in some states depending on where they live. Great conversation you guys. I really appreciate it so much. Thank you.

Some U.S. officials are warning this morning that a formal declaration of war from Putin is actually looming, that it's coming our way.

Plus, are evacuees from Azovstal steel plant in Mariupol being bused to Russian territories? The mayor of Mariupol is going to join us ahead.

BERMAN: And the three words that have become a symbol of defiance for Ukrainian fighters.

A soldier who was on Snake Island during that exchange joins New Day with his account and the first thing he did once freed from Russian captivity.

This is CNN's special coverage.



KEILAR: Significant new developments in Russia's invasion of Ukraine. U.S. and western officials say that Vladimir Putin may be preparing for formally declare war on Ukraine within six days. And this move would enable the full mobilization of Russia's reserve forces. Until now, Putin has only called the invasion a special military operation.

Here's the State Department's assessment of this.


NED PRICE, STATE DEPARTMENT SPOKESPERSON: I would add that would be a great irony if Moscow used the occasion of Victory Day to declare war, which in itself would allow them to surge conscripts in a way they're not able to do now, in a way that would be tantamount to revealing to the world that their war effort is failing, that they are floundering in their military campaign and military objectives. But I am quite confident they'll be hearing more from Moscow in the lead up to May 9th. I'm quite confident you'll be hearing more from the United States, from our partners, including our NATO partners in the lead-up to May 9th as well.


BERMAN: The major activity is currently in the eastern part of Ukraine. The Ukrainian military reports that 12 Russian attacks over the past days had been repulsed in the Luhansk and Donetsk region. The Ukrainians also claimed to have shot down seven attack drones.

And to the north and east of Kharkiv right there, can you see Kharkiv right there, the Ukrainians claim they've taken back control of several settlements. According to the Pentagon, Ukrainian troops have pushed Russian forces 25 miles to the east of Kharkiv over the last 24 to 48 hours.

Now, in the port city of Odessa, in southern Ukraine, several missiles, the Ukrainians say, have hit buildings including a church and dormitory. Ukraine's president said a 14-year-old boy was killed and a 17-year-old girl wounded.

We also have new video from Mariupol. That's Russian-backed forces firing Grad rockets in the direction of the steel plant there, even though scores of civilians are still sheltering inside. The Ukrainian military says it killed five Russian soldiers as they attempted to assault the facility.


KEILAR: Joining us now is CNN Military Analyst and retired Army General James Spider Marks.

Spider, tell us what would it mean for Russia to officially declare war on Ukraine. It seems that Russia is right now at war with Ukraine already.

JAMES SPIDER MARKS, CNN MILITARY ANALYST: Yes. I think, Brianna, this is a distinction without a difference. They really are at war. What they've been declaring is this is a special operation, but there really is no difference between what we've seen, the devastation that they've caused, the number of battalion tactical groups, those organizations that have been invaded Ukraine, and in many cases, about 25 percent of those have been destroyed. But there's no difference between that and the declaration of war. So -- and, oh, by the way, Putin as an autocrat can mobilize wherever he wants to mobilize, when he wants to mobilize. So, this is a barrier that I don't think we should worry about. It's a narrative.

BERMAN: We talked about the major conflict happening now in the eastern part of the country. We've been focusing on Donbas. There is fighting worth talking about happening around Kharkiv, which is a little separate from the rest of it, Spider.

MARKS: Right.

BERMAN: With the Ukrainians, and you can see right here, these areas in yellow, Ukrainians able to win back some territories that the Russians had been operating in. What's the significance of this? And what does it tell you about the Ukrainians?

MARKS: Yes. Well, what we've seen with the Ukrainians all along is a level of creativity, mission command, that's kind of a military term for let me draw a picture of what I want you organizations to achieve. And you come back to me and tell me creative ways that you want to get it done. It's the purpose that drives operations. The Ukrainians have been showing this across the board consistently. That goes to leadership. That goes to training. That goes to engagement. That goes to support that's coming from the west. The Russians by comparison have displayed none of that.

So, what we see right here in the vicinity of Kharkiv, these areas right here are significant because the Ukrainians are pushing the Russians back. But also bear in mind, the Russians still have a large presence here in red and a large presence here. And also, at the start of all of this and since 2014, the Russians have been here. They've been down in Crimea. So, the point is, these are contested areas. These are claimed by the Russians.

And then we've -- and then CNN has just done a masterful job of describing the devastation in the vicinity of Mariupol. Russia is achieving its objective there and elsewhere simply through this indiscriminate firing of artillery, rockets and missiles at stationary targets. So, this is all very contested still. And what we thought might be some significant conventional tank engagements have not demonstrated themselves yet.

KEILAR: And we just haven't seen it yet. General Marks, thank you so much for taking us through that. We always appreciate it.

Soon, we're also going to be joined by Pentagon Press Secretary John Kirby.

BERMAN: So, the evacuation of civilians continues out of Mariupol this hour after earlier attempts stalled when Russian forces attacked, an attack of, quote, constant fire on the Azovstal steel plant. This morning, we posed questions for the mayor of Mariupol, Vadym Boichenko, on the latest evacuation efforts as well as the discovery of so-called filtration camps. Here's that exchange.

(BEGIN VIDEOTAPE) BERMAN: What can you tell us about the latest round of evacuations from Azovstal and surrounding areas in Mariupol this morning?

MAYOR VADYM BOICHENKO, MARIUPOL, UKRAINE: Evacuation is ongoing. We are waiting to hear news on the buses that have settled for Zaporizhzhia, the Ukraine-controlled territory. They have not -- as far as we know, they have not yet entered the Ukraine-controlled territory. So, we're waiting for this news.

These are people who have spent a long time in bomb shelters, hiding from the bombardment and defended by our brave servicemen from the Ukrainian Armed Forces and the National Guard.

So, we're waiting to save their lives. We're waiting to see them reach Zaporizhzhia safely. And also on the way, they collected people from the surrounding areas, particularly from the village Manhush, we were able to join these people to the evacuation efforts.

So, we're waiting for news to see whether these people, these buses, have reached Ukraine-controlled territory.

BERMAN: An estimated 100,000 people remain in the city. What's the current situation in Mariupol for those civilians remaining?

BOICHENKO: The situation is such that the Russian army is holding more than 100,000 people captive in Mariupol. They are using them for hard labor to clear the rubble that these Russian troops created, by their bombardment, to dig graves, mass graves for the people that the Russian army killed. Over 20,000 people were killed. And so the situation for these people is very, very difficult.


BERMAN: Are Ukrainian forces still fighting for Mariupol?