On Thursday, the hosts and guests on CNN’s New Day continued to reel over the possibility of Roe v. Wade being curbed or overturned. The Supreme Court oral arguments for Dobbs v. Jackson Women’s Health Organization were heard Wednesday, with several of the court’s conservative justices seeming to indicate a willingness to support Mississippi’s ban on abortions past 15 weeks of pregnancy.
Host John Berman began by saying the case “could fundamentally alter life and choice for millions of women,” and then introduced his guests, assistant law professor Alexis Hoag and CNN columnist Jill Filipovic.
Hoag didn’t waste any time in revealing her unsurprisingly liberal opinion on abortion, saying that if Chief Justice John Roberts managed to “thread the needle so that we retain somehow Roe but yet uphold this Mississippi ban,” that would be the best she could hope for. She then called that reality “terrifying.”
Striking that balance, or even overturning Roe completely, would simply delegate the power to legislate on abortion to the states. The Tenth Amendment guarantees that right, saying that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This crucial principle of our nation’s government is scary to liberals, because it protects states’ rights to act independently from big government.
Filipovic continued fearmongering about the states legislating on abortion, claiming it would throw a “huge wild card out to the states,” creating “legal chaos.” Predictably, she also complained about “doing away with now decades of established Supreme Court precedent,” despite the Supreme Court having overturned hundreds of its own precedents over the years.
“That's what you consider to be the best case. The alternative is…overturn it completely, which means each state gets to decide. Which means as many as 20 states, maybe more, what, just outlaw each and every abortion,” worried Berman.
This is where the discussion became completely decoupled from reality, as Hoag suggested that leaving abortion laws up to the states would violate the 14th Amendment:
That’s what is so terrifying is leaving this decision up to the individual states. And if we can return back to our period of reconstruction following the Civil War, the whole point of the 14th Amendment was to protect the rights of people that were marginalized. And I'm speaking about enslaved black people. And so the fact that the 14th Amendment protects individual's rights to bodily dignity, to liberty and then to leave that up to the states, the whim of a majority vote of state legislators, cuts directly against what we have with the 14th Amendment and the due process clause.
The insanity of that comparison aside, this isn’t CNN’s first time this week ignoring the Tenth Amendment in favor of personal opinions on abortion. The existence of 20-plus states that would ban abortion indicates strong opposition nationwide, but liberals would rather the Supreme Court forced every single state to keep it legal.
You can read the full transcript of the segment below by clicking Expand:
JOHN BERMAN: This morning, the very real possibility that Roe v. Wade, which protects a woman's right to have an abortion, could be overturned. For two hours, the Supreme Court heard dramatic and sometimes tense arguments over a case that could fundamentally alter life and choice for millions of women.
(BEGIN VIDEO CLIP)
SCOTT STEWART: Roe v. Wade and Planned Parenthood v. Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise.
JUSTICE SONIA SOTOMAYOR: Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts? I don't see how it is possible. If people actually believe that it's all political, how will we survive? How will the court survive?
(END VIDEO CLIP)
BERMAN: The case revolves around a Mississippi law that seeks to ban abortions after 15 weeks, with no exceptions for rape or incest. In the end, the court seemed poised to uphold the Mississippi law, 15 weeks, with a conservative majority split about whether to stop at 15 weeks or overturn Roe completely, which would allow states to ban abortions at any time or entirely. Joining me now, assistant professor of Brooklyn Law School, Alexis Hoag, and CNN columnist and lawyer Jill Filipovic. Alexis, Professor, I want to start with you. That distinction seems to be the most important thing this morning where you have at least three justices who want to just throw out Roe altogether. And then you have maybe two who want to say, Mississippi law can stand beginning at 15 weeks. What's the distinction? Why is this important?
ALEXIS HOAG: I think it's important to identify which justices are which. So, on the far right we have Alito, Gorsuch and Thomas. And then those two sort of in play perhaps, Kavanaugh and Barrett. And so what could happen is Chief Justice Roberts does want to maintain the legitimacy of the court. So he may try to thread the needle so that we retain somehow Roe but yet uphold this Mississippi ban. And, to me, that that is the best case scenario. Jill and I actually classmates from law school. That is terrifying. And I assume you're on the same page with me there.
JILL FILIPOVIC: Definitely. Getting rid of the viability standard, which is currently what's in place -- so essentially the law right now says that states cannot completely ban abortion after the point of fetal viability. So after the point that the fetus can survive outside of the woman's body. That happens well after 15 weeks of pregnancy. So even if the Mississippi law gets upheld at the 15-week standard, as Alexis says, the best case scenario, we're doing away with now decades of established Supreme Court precedent and throwing this huge wild card out to the states. If no longer viability, well, why 15 weeks, why not six weeks, why not four weeks? It creates total legal chaos and functionally guts Roe without actually doing it outright. And that's the best case at this point.
BERMAN: That's what you consider to be the best case. The alternative is the Gorsuch, Thomas, Alito way, which is just do away with it completely. Overturn it completely, which means each state gets to decide. Which means as many as 20 states, maybe more, what, just outlaw each and every abortion.
HOAG: Exactly. And that's what is so terrifying is leaving this decision up to the individual states. And if we can return back to our period of reconstruction following the Civil War, the whole point of the 14th Amendment was to protect the rights of people that were marginalized. And I'm speaking about enslaved black people. And so the fact that the 14th Amendment protects individual's rights to bodily dignity, to liberty and then to leave that up to the states, the whim of a majority vote of state legislators, cuts directly against what we have with the 14th Amendment and a due process clause.
BERMAN: Let's talk about Brett Kavanaugh. You identified Brett Kavanaugh as one of the big unknowns here, along with Amy Coney Barrett. Look, maybe John Roberts too. John Roberts seemed to indicate 15 weeks might be OK with him. But we'll leave that aside. Let's talk about Brett Kavanaugh because, during his confirmation hearing, Brett Kavanaugh talked about the importance of precedent and really seemed to indicate that he believed in relying on precedent here. He talked about Roe and he talked about Casey. Listen to this.
(BEGIN VIDEO CLIP)
SEN. DIANNE FEINSTEIN: What would you say your position today is on a woman's right to choose?
JUSTICE BRETT KAVANAUGH: Well, as a judge --
FEINSTEIN: As a judge.
KAVANAUGH: As a judge, it is an important precedent of the Supreme Court. By it, I mean Roe v. Wade and Planned Parenthood v. Casey, been reaffirmed many times. Casey is precedent on precedent, which itself is an important factor.
(END VIDEO CLIP)
BERMAN: Precedent on precedent. It was enough to convince Susan Collins, who is pro-choice, to vote to confirm Brett Kavanaugh. This is what she said at the time.
(BEGIN VIDEO CLIP)
SEN. SUSAN COLLINS: We talked about whether he considered Roe to be settled law. He said that he agreed with what Justice Roberts said at his nomination hearing in which he said that it was settled law.
(END VIDEO CLIP)
BERMAN: But yesterday, Jill, Brett Kavanaugh could not have been more different. He listed -- he put together a laundry list of cases that the Supreme Court had overturned to suggest precedent didn't matter as much to him, or these are the places where precedent didn't matter. And then he also said this.
(BEGIN VIDEO CLIP)
KAVANAUGH: The reason this issue is hard, is that you can't accommodate both interests. You have to pick. That's the fundamental problem.
(END VIDEO CLIP)
BERMAN: And he went on to say, if you have to pick, it should be the states, more or less, who have to pick, or indicated that's what he might think. That's a big change. What he said yesterday, really, it's an important thematic difference from what he was saying out loud in 2018.
FILIPOVIC: Well, women's health groups, feminist groups knew that in 2018, when Kavanaugh was being confirmed, that he didn't support Roe v. Wade, that he would be a conservative vote likely against abortion. Of course, none of us are fortune tellers. None of us can tell exactly what -- how a justice is going to vote in the future. But feminist groups were screaming about the Kavanaugh nomination because we knew that he would be a vote against Roe. Susan Collins knew he would be a vote against Roe. Any sentient person paying attention to Brett Kavanaugh's history and his views knew that what he was saying about precedent was a bit of a weasel dodge. You know, he was saying, all right, well, I care about precedent, and that's fine, he can say that and that can be true, and then he can also, as a judge, decide that in this particular circumstance, he doesn't think that the arguments for precedent are as strong as other arguments, which is exactly what he indicated in the arguments yesterday. None of this is a surprise. It was entirely predictable. Susan Collins could have, should have predicted it.
BERMAN: She was asked about this last night by CNN. And at the time her response was, she hadn't seen it yet. She needed to go look at the video to find out how she felt about what Brett Kavanaugh was now saying. Jill, Alexis, classmates. I'm glad for the reunion here. Thanks so much for being with us.
HOAG: Thank you.
FILIPOVIC: Thank you.