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Draft Leaked of Majority Decision by Supreme Court to Overturn Roe Versus Wade and Planned Parenthood Versus Casey Decisions on Abortion Rights; Russian President Vladimir Putin Reportedly Prepared to Declare War on Ukraine. Aired 8-8:30a ET

Aired May 03, 2022 - 08:00   ET




BRIANNA KEILAR, CNN ANCHOR: Good morning to viewers here in the U.S. and around the world. It is Tuesday, May 3rd. I'm Brianna Keilar with John Berman. And Roe versus Wade is poised to be overturned. "Politico" has obtained a draft of a majority Supreme Court opinion written by Justice Samuel Alito that suggests the court is ready to strike down the landmark decision that legalized abortion that has stood for almost 50 years. The leak is a stunning breach of the court's confidentiality and secrecy.


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

CROWD: Stand up, fight back!


CROWD: Stand up, fight back!


CROWD: Stand up, fight back!


KEILAR: Demonstrators rushed to the Supreme Court overnight, both supporters of abortion rights and those opposed to abortion.

JOHN BERMAN, CNN ANCHOR: We are expecting a statement from the White House this morning on this. And if this is the decision, it could almost instantly criminalize abortion for millions of American women. By some estimates about half of U.S. states would move quickly to ban or restrict abortions. And this decision raises questions about the future of other Supreme Court rulings, including decisions on same- marriage and even contraception.

And moments ago, CNN got exclusive video outside the home of Chief Justice John Roberts as he left for the day.


UNIDENTIFIED FEMALE: Do you have any comment on the court -- Supreme Court's draft opinion being released? Do you plan to investigate the leak?


BERMAN: As you can see, no comment from the Chief Justice there.

Jeremy Diamond is at the White House, but first we go to CNN's Jessica Schneider outside the Supreme Court for the substance of what would be a truly historic decision, Jessica.

JESSICA SCHNEIDER, CNN CORRESPONDENT: Absolutely, John. This would be a monumental and consequential decision if it is ultimately issued by the court here. But also, this stunning breach of secrecy. The court never releases even an inkling of what their opinions might be before decision day, so this is very significant. "Politico" reporting that Justice Samuel Alito has written this draft majority opinion that would completely eliminate the constitutional right to abortion that has existed in this country since 1973, when Roe v. Wade was issued and subsequent opinion in 1992, Planned Parenthood versus Casey. In this draft opinion, Justice Alito writes this, saying, "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."

"Politico" is reporting that this 98-page draft is also being joined by four conservatives to make up that five-member majority. The four conservatives being Justice Clarence Thomas, Justice Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But this is just a draft. It has not been verified by CNN. The court so far is issuing no comment. We see that the Chief Justice not saying anything just yet.

And, of course, John, this was a draft opinion dated February 10th, so it's possible that things have changed since then. It's also possible that justices could change their vote, that has happened in the past. But if this stands it would be a consequential five-four decision that would eliminate the constitutional right to abortion, and states would act quickly. In fact, we have already seen a flurry of Republican-led states changing their laws, rolling back abortion rights, completely eliminating abortion rights. Just in the past week we have seen Oklahoma lawmakers pass a six-week ban, but more consequentially, the governor there has already signed in Oklahoma a complete abortion ban set to take effect in August.

So, John, Republican-led states are moving swiftly here. At the same time, we're also seeing Democratic-led states, Democratic governors speaking out about this. So an already divisive issue being more -- being made more divisive by the release of this draft. John?

BERMAN: And it could have an instant impact on millions of women if this is the decision that is issued, we expect, in two months. Jessica Schneider at the Supreme Court, thank you for your reporting.

KEILAR: And let's go now to CNN's Jeremy Diamond who is live for us at the White House. Jeremy, how is the White House responding to this?

JEREMY DIAMOND, CNN WHITE HOUSE CORRESPONDENT: Listen, Brianna, we are expecting the White House to release a statement this morning on this situation right now as it relates to Roe v. Wade. And we could also hear from the president directly as he leaves the White House at 10:30 this morning.


Now, listen, the White House made a practice of not commenting on leaked documents, leaked information, in the past, so I would be surprised if they commented directly on this draft decision. But I think we can expect the White House and the president certainly himself as well to reiterate what they have said before. The president during his State of the Union address talked about the fact that Roe v. Wade is under attack, under assault like never before.

And we have also seen the president and the White House repeatedly reiterate in statements that they do want to see Roe v. Wade codified as the law of the land through legislation. That's unlikely to happen right now, of course, given the current makeup of the Senate, of the fact that the filibuster is still in existence.

But we know that the White House has also been preparing for this moment, Brianna. They have been reacting to one state after the next that has sought to dismantle abortion rights across the country. And in doing so, they said that the White House's Gender Policy Council, the White House Counsel's Office, and the Department of Justice have all been looking at what kinds of steps the federal government can take to try and stop this dismantling of abortion rights in various states across the country.

They have been meeting with abortion rights activists and preparing for this moment. So we will see exactly how the president responds to this. But certainly, they will reiterate they want to see this codified as the law of the land regardless of the Supreme Court decision, and, of course, that they will take every step they possibly can to try and protect women's rights to choose. Brianna?

KEILAR: Jeremy Diamond live at the White House, thank you.

BERMAN: Joining me now is Minnesota Senator Tina Smith. She previously served as the executive vice president of Planned Parenthood in Minnesota. Senator, thank you so much for being with us. The words in this draft opinion completely unambiguous. Let me read them to you. It says, from Samuel Alito, "We hold that Roe and Casey must be overruled." So when you hear those words, how do you feel?

SEN. TINA SMITH (D-MN): Well, it is really incredible. I think this is the first time in my lifetime, probably the lifetime of almost everybody, that the United States Supreme Court is rolling back constitutional rights for people in this country. And I know from my firsthand experience working at Planned Parenthood that women have a great capacity to be able to make decisions for themselves about their own pregnancies and about what they want to do with their own bodies. This is a fundamental -- it's the most American of values, right? It's the value of freedom and self-determination and autonomy.

And it looks as if the Supreme Court is preparing to roll back those rights when it comes to abortion. It's stunning to read this draft opinion, but I have to say, it's not surprising, because this is the culmination of decades of work by Republicans at the federal and the state level to overturn Roe versus Wade. And now it looks like it is happening.

BERMAN: The decision would effectively throw the decision about whether to keep abortion legal or not back to the states. And by some estimates, I'm going to put a map up right here, about half of U.S. states would either ban or restrict abortion. You can see some of the states have already passed restrictions or proposed bans. Some are expected to. So if you are a woman in one of states up there in the map in red, and you would like to have an abortion for whatever reason, what happens to you?

SMITH: Well, as you reported, somewhere around half of the states have passed some sort of extreme limitation on abortion rights. I think about my home state of Minnesota where we have a guarantee in the Minnesota constitution to protect the right to privacy and women's rights.

What we're seeing in Minnesota already is people coming from surrounding states, states as far as Texas, to be able to get an abortion if that's what they know is best for them. This puts extreme pressure on women. What will happen is that people will find a way to get the healthcare that they need. But the burden that this will place on them is really dramatic. And some people will not be able to make it work.

And it is -- it's going to have massive consequences for women across this country, especially women who end up living in places where their rights are completely rolled back by governors, by Republican governors and Republican state legislatures. I think it's going to be a galvanizing moment in our politics because of this, because this is a Republican driven, conservative driven effort that has been going on for decades. And I have to point out, of course, that we have three Supreme Court justices on the court right now, two appointed by Trump, that have -- that have -- are completely -- have completely changed the makeup of the Supreme Court.

BERMAN: If this is the decision that is ultimately released, we expect in two months, what recourse do you as a U.S. senator have?


SMITH: Well, my background is in community organizing, and we will have to organize to win elections in order to get a majority in the United States Senate so that we can codify Roe v. Wade. And we're going to have to organize it at the state level as well to do everything we can to protect these rights. I am not naive, though. This is going to be a long, difficult fight. But we have to be able to -- at the end, I believe that we will persevere, but it is going to be a long, long, difficult fight. And we have to overturn the filibuster in the Senate so that we can actually protect people's rights with the simple majority, which only seems right also.

BERMAN: Let me ask, though, if the Republicans retake control of the Senate and the House and were to win the White House in 2024, the filibuster went away, they could theoretically pass the federal ban on abortion. And no filibuster, you have no recourse then, correct?

SMITH: Well, consider this. They are so dramatically out of step with the opinions of the American public -- recent polling shows that there is no state in the country where more than 30 percent of people believe that abortion should be banned outright. I think that in some ways the Republican Party is like the dog that caught the bus here, because they have been campaigning for decades an overturning Roe. Now they're on the verge of realizing their goal, and they are dramatically out of step with the American public. And I believe there will be consequences for that.

BERMAN: Senator Tina Smith, I appreciate your time this morning. Thank you.

SMITH: Thank you so much.

BERMAN: So new reporting that Vladimir Putin is expected to formally declare war on Ukraine in less than a week. What would that look like, and how would the U.S. respond? We'll be joined by Pentagon Press Secretary John Kirby next.

Plus --

KEILAR: Russian-backed forces fire rockets towards the Azovstal steel plant in Mariupol. We have the very latest on evacuation efforts under way.



BERMAN: Significant new developments in the Ukraine. U.S. and Western officials say that Vladimir Putin may be preparing to formally declare war on Ukraine in a few days. The move would enable the full mobilization of Russia's reserve forces. Until now, Putin has only called the invasion a special military operation.

Ukrainian military reports 12 attacks over the past days have been repulsed in the Eastern part of the country. This, of course, the bulk of the fighting taking place over the past several days. Ukraine claims to have shot down seven attack drones.

I want to show you activity around Kharkiv right here. This is Ukraine's second largest city. You can see here Ukraine claims that operations have been able to take back territory around the city, push Russia 25 miles to the east of the city over the last 48 hours.

We also have new video released by the Russian Ministry Defense. It shows the launch of high precision cruise missiles from the Black Sea coast. Russia claims they are targeting Ukraine's military infrastructure.

Also, in Mariupol, Russian-backed forces firing Grad rockets in the direction of the steel plant there, despite the fact that scores of civilians are still sheltering inside. Evacuations from that plant now under way.

KEILAR: Moments ago, the mayor of Mariupol spoke to us about the dire situation for the civilians who are remaining.


MAYOR VADYM BOICHENKO, MARIUPOL, UKRAINE (through translator): 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.


KEILAR: Joining us now is Pentagon Press Secretary John Kirby.

Sir, thank you so much for being with us this morning.

Are you expecting Vladimir Putin to declare war by Victory Day?

JOHN KIRBY, PENTAGON PRESS SECRETARY: You know, we've seen the same kind of rumors that you have, Brianna. We can't confirm that's what he's going to do or not.

And quite frankly, he's already declared war on Ukraine. On February 24th, when he moved all those forces in along three lines of axis, and started killing innocent civilians, and bombing cities and towns all throughout Ukraine, he's already declared war.

Now, some experts will say this might give him a little bit more flexibility in terms of calling up reserves, but frankly he can do that anyway. And, in fact, he already has. I mean, there's a whole new batch of conscripts, young 17, 18 year olds with very little training that he's now flung into the fight and we're already seeing that many of them are having morale problems, leadership issues and not fighting very well.

KEILAR: It is sort of a funny distinction in that clearly Russia is at war in Ukraine. But you did mention that it would allow this full mobilization of reserve forces.

Would that add -- I mean, you say that he could already do that now, but would that add to what the Russians have in a way that is at all game-changing?

KIRBY: Well, what we -- I can't -- look, I don't know how many reserve forces he might be able to call up and I don't know what timeline. What I would tell you is that as they lost the battle of Kyiv, and as they tried to then refocus their efforts on the Donbas particularly, that eastern part of Ukraine, he has already put more reinforcements in, and tried to shore up battalion tactical groups that were almost completely depleted from their -- from their combat effectiveness.

Now, he's done that, he's put some together in a patchwork way and he's reintroducing them into the east. He's got about 90 or so battalion tactical groups and we continue to see him want to reinforce them with additional manpower.

So, look, it's possible that this could give him a little bit more flexibility, but, frankly, he's an autocrat. And if you really want to call up more people and put more people into the fight, he would -- he would already be able to do that.

Let's not lose the bigger picture here. Whether he declares war or not, he's already at war in Ukraine, he's already killing innocent civilians, flinging millions into refuge.

And what needs to happen instead of declaring war, some symbolic effort to prove that he's now more of a victim than he claims he was before, he should sit down with Mr. Zelenskyy, and do the right thing and end this war. Rather than declare, he should end it.


KEILAR: How do you see where Russian forces are now on their objective on being able to annex parts of eastern Ukraine?

KIRBY: They're struggling, Brianna. The progress in the east from the Russians has been uneven. It's been impeded. It has been slow. And they have not been able to achieve a whole lot of success there in the east.

I mean, they're still bombing Mariupol. So, for all their claims that there's no resistance in Mariupol, there is. So, they have not achieved really any of the strategic objectives that Mr. Putin set out for, and the Ukrainians are fighting back stiffly, bravely, nimbly, skillfully in the Donbas region.

And so, there's been a lot of back and forth, Brianna. The Russians might take a town or two, Ukrainians will take it back. And we're still continuing to see that, even over the last 24 hours.

KEILAR: How do you see Putin's ability compared to Ukraine's, though, to back that up? I mean, doesn't he have an endless supply of resources to throw at what he sees as this problem?

KIRBY: I wouldn't describe it as endless, Brianna. But, certainly, he has numerical advantages. I mean, he has the ability to draw on more manpower than the Ukrainians do. He has more aircraft available to him. He has more missiles available to him. Certainly, he has some numerical advantages.

But I will tell you this, while it's still a lot, he's about 75 percent or so of the combat power he once had that he still has. So, it is not like he's 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 in this war. 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're still struggling in the Donbas.

Even when they named this new general, a four-star general, to sort of take over, they still have not overcome all those challenges.

By contrast, though smaller in number, the Ukrainians still have a lot of their capability left to them, and more is flowing in every single day. They also have better command and control, better communications, high morale.

They are fighting bravely. They have got -- they allow for initiative. They have a noncommissioned officer corps because all the training they got over the last eight years. So, they have certain advantages in the field as well.

KEILAR: Today, of course, the president is visiting this factory that makes Javelin anti-tank missiles. He's going to deliver remarks here about this funding for Ukraine. What's his objective?

KIRBY: Well, look, I won't speak for the president. I won't get ahead of his visit. But I think he clearly wants to get a look at least one of these kind of munitions that has proven so critical on the battlefield and still is. The Javelin anti-armor missile is very, very effective.

And you don't have to look anymore than the footage that CNN has been showing every day of burned out and destroyed tanks all over Ukraine to see the evidence of that. And I think it's important that the president reach out to our defense industrial base because that's going to be critical in helping Ukraine continue to fight this war and continue to be able to defend itself is our own defense industrial base.

So we're glad to see that the president is going down there to take a look, not just at the missile and what it can do, but about all the great Americans who are helping produce these kinds of systems that are having such a profound effect inside Ukraine.

KEILAR: Yeah, there are so many people behind all of this aid that is going there.

KIRBY: That's exactly right.

KEILAR: John Kirby, we appreciate you being with us from the Pentagon. Thank you.

KIRBY: Yes, ma'am. KEILAR: A political fire bolt, out of the Supreme Court, as a leaked

draft shows the Supreme Court is prepared to overturn Roe v. Wade. Is this the beginning of the end of abortion rights in at least some parts of America?

BERMAN: And primary voters in Ohio and Indiana heading to the polls this morning. A live look at voting. What impact will all of this have on the midterm elections?



BERMAN: Roe versus Wade has been the law of the land for nearly 50 years, guaranteeing a woman's right to abortion. According to a stunning report, that could be about to change. Politico obtained a draft opinion written by Justice Samuel Alito that would strike down Roe v. Wade.

Joining me to discuss a few key passages, CNN chief legal analyst Jeffrey Toobin.

Jeffrey, this is the draft report, again, obtained by "Politico". It could change, but the language in here is stark and specific. Alito writes, we hold that Roe and Casey must be overruled. Significant, not half measure, not saying, well, some restrictions can stay in place, but blow it up.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Absolutely. I mean, this is what makes this opinion, again, if it becomes the opinion of the court, so significant because it means an entire area of law, literally dozens of opinions since the Supreme Court decided Roe v. Wade in 1973 reaffirmed over and over again, they're all overturned and that throws an enormous area of the law up for grabs, because it is not necessarily just abortion that is covered by this -- by this decision overruling Roe.

BERMAN: We'll talk much more about that. Just so people know, it throws it back to the states. Here is a look at the states, what they would do -- the states in red and yellow almost certain to ban abortion or likely to. And we're talking about in some cases bans without any exceptions.

TOOBIN: And it is worth pointing out that that decision is written in such a way that if Congress and the president were so inclined, Congress could pass a law banning abortion in the whole country. New York, California, that opinion is an open invitation to Congress to ban abortion in the whole country, not just return the issue to the state.

BERMAN: Little more language from Alito that is important. He writes in the draft, roe was egregiously wrong from the start. I'll underline that. Why is he using such strong language here?

TOOBIN: Because the court is usually reluctant or at least publicly reluctant to overturn its precedents. [08:30:00]