tv Washington Journal Greg Stohr CSPAN May 10, 2022 2:56am-3:29am EDT
app. washington journal continues. host: greg stohr is with us. he is the supreme court reporter for bloomberg here to talk about the future of roe v. wade in the wake of the leaked draft. when you heard the news of that leak and saw that draft decision come out, what were your initial thoughts? >> i was driving so my initial thought was that i better pull over or i might hit somebody. it was stunning in many ways. nothing like this has ever happened in my time in the court. for leaked draft to come out. the result of it perhaps wasn't that surprising given the way the argument went. it was certainly a possibility that the court might say we are
going to overturn roe v. wade. the fact that it came out like this was stunning. host: in terms of covering the court, it's a very insular institution. you don't get to talk to the justices. for information to come out like this, it's never really happened before. >> we have seen a few examples in recent years about the deliberations getting leaked out and we have seen other examples after the fact of reporters who have learned some of some of the maneuvering that went on behind-the-scenes in a case. the sort of thing where the entire draft opinion comes out, nothing has come close to it. host: this is a draft opinion reportedly written back in february and the mississippi abortion case. >> that's right. host: what does the mississippi law do?
>> the law would ban abortion. mississippi asked the court to take up the case and after justice barrett was confirmed to the court, mississippi asked the court go even further and explicitly overturn roe. host: has the court ruled on any of the abortion cases it has heard? >> it has ruled on that texas case about whether abortion is a constitutional right's. whether this texas law, there was a way to challenge that and block it before it went into effect. the court dealt with that on an emergency basis and they essentially said there is not a way you can challenge that law. there was another kentucky case
that was even more of the procedural question regarding whether the attorney general could take over the state's defense of its abortion law. host: could the justices decide to completely overturn roe v. wade? >> if all they do is uphold the mississippi law, at a minimum they're going to cut the basis of road which said up until the point of fetal viability, states can't restrict abortion or place an undue burden on abortion. there's really no way they can uphold the mississippi law without undercutting the basis of rental and cases -- casey.
host: future of road tests the cloud of roberts. how has the makeup of the court and the dynamics of the court with no six conservative justices including the chief justice, how has chief justice roberts role changed with the newer addition of those justices? >> it has changed dramatically. there was a period where john roberts was both the chief justice and the median judges for the cases that divide the court along ideological lines. he really controlled almost everything. once justice where it took justice ginsburg's seat, that shifted the balance to the right and the median justice is now somebody other than john roberts depending on the case. it may be neil gorsuch in some cases and that has meant that the chief justice prefers a bit of an incremental approach to the law.
the idea that you might not go all the way in overturn roe in this case is consistent with what he might do. but if there are five justices that want to go further than he does, then he doesn't control that decision. host: greg stohr covers the supreme court for bloomberg. we are talking about the leak of that draft decision and the future of roe v. wade. here are the lines. democrats (202) 748-8000. republicans (202) 748-8001. all others (202) 748-8002. the court affirmed that it was an early draft decision but also initiated an investigation. what will that investigation look like? >> some people have been calling for the fbi to start investigating. the chief asked the marshal of the supreme court who is
basically in charge of security at the court to do an investigation and so that keeps it at least for now internal. we don't know a whole lot about that investigation. the marshal could perhaps call in some outside help with that investigation and we don't even know for certain that we will hear the results of it. all we know is he has asked her to do that investigation. host: does that mean reporters are asked questions by the marshal? >> it certainly could. obviously there is some precedent for reporters being asked about their sources and that is troubling for a lot of journalists from a first amendment perspective. i would imagine that the marshal would start internally talking to the people. there's a few dozen people on the court who might have had access to this opinion and that would at least be the place she
would start. if that doesn't produce fruit, maybe something broader than that. host: one of your pieces is about the abortion rights protesters march in between the houses of cavanaugh and roberts. that's also unprecedented. have those justices received extra security because of this? >> on saturday night there was a very big police presence at both their houses. they knew that it was coming and there were a number of uniformed offices in cars and the like. the court itself, there is now the same fencing that they had around the capital complex after the january 6 attack. the coat has -- the court has clearly taken some extra
security precautions. host: once they hear a case, this is a draft decision. how did they come to a consensus on the decision or decide a case? >> the argument in this case was held on december 1. after the argument, they have a private conference where they take an initial vote. within a week or two after that, the senior justice and the majority gets to assign the opinion to someone. other justices at various points may start writing concurrences. host: there's a headline in the washington times that says the leaders thinking on abortion law, writing a more in-depth look at some of what is written in that draft.
did the decision comport to what you heard from justice alito in particular? the questions he may have asked during that mississippi case in the oral argument. >> matches what he has said on the bench and his opinions and speeches over the years, where he wants to look at the constitution from an originalist perspective. he looks at it in terms of the history and tradition that would have surrounded that. there were parts of the opinion where you could see he kind of nodded towards another justice like justice barrett who had in the argument raised the idea that the safe haven laws that let a woman who gives birth leave the baby somewhere and not be prosecuted for that. that was something she raised the argument and something he mentioned as an aside. you could see pieces of the
opinion where he may have been trying to attract the support of the other justices. host: do you think the final decision will be written by justice alito? >> the dynamics seems to be that the chief justice has been and still is trying to convince one of the other justices may be somebody like cavanaugh or barrett to join him in a narrower decision. we might end up with not an opinion for the court but rather two different camps and the majority one that will go farther and the other one that is narrower. host: first call is from betty in stockton, california. democrat line.
caller: good morning. i'm a baptist minister in boston. on our currency says in god we trust. i think that if they would wait until marriage before they engage in sexual activities, i think that would not need to be an abortion. i think it's murder when you take a fetus and end its life. i just think it's a travesty to america. we murder so many people before birth and after break. so i'm just totally against roe v. wade i wish it was overturned. host: what are some of the other highlights from the draft the justice wrote? >> his basic framework was abortion is not a right that is mentioned in the constitution. and it can be protected only if it's deeply rooted in the nation's history. he spent a lot of time talking
about english common law and laws that were in place throughout american history including around the time of the 14th amendment when it was enacted after the civil war. and so that seemed to be a real core of the decision and people on the other side of the issue were pushing back on his analysis. host: the women's health protection act, the majority leader in the senate, chuck schumer filing cloture on that today. live coverage will be over on c-span two. mike is up next in st. louis. democrat line. go ahead mike. we were on the air. -- you are on the air.
caller: good morning. thanks for taking my call. it's a complex issue. i'm going to read from page 65 of the draft. roe and casey must be overruled and the authority to regulate abortion must be returned -- ok. never mind. my computer patient just went off. i apologize. i'll start over. roe and casey must be overruled and the authority to regulate abortion must be returned to the people and their elected representatives. i live in missouri and we've got the trigger law and a lot of state legislatures didn't know how they would rule and they thought they would go back to the states which is kind of true, but if the five justices wanted to go back to the state legislatures, they should have said that. they said returned to the people and their elected
representatives and i hope the people get to vote on this. and i will point out, i think viable fetuses have a right to life. i know they don't say that in roe v. wade specifically. but viable fetuses have a right to life. and these five justices when they said roe v. wade should be dismissed, they did away with that right. host: he mentions the term trigger law. >> 13 states have laws that say if the supreme court overturns a row, automatically abortion will be banned in our states. there is some overlap, that there are other states that have pre-existing bands on abortion, some dating back more than a hundred years. that would potentially kick in as well. so we are probably talking about at least two dozen states
ultimately that would be banning or almost completely banning abortion if the court overturned row. host: what does the term stare decisis mean? >> that's the notion that the supreme court will stand by its precedent absent some compelling reason. every justice on the court agrees there are some circumstances where you can overrule a past ruling but they disagree on the right factors in the right time. justice alito spent a lot of time talking about when you can overrule a ruling and why this is an appropriate time to do that. host: how often has the court overturned its previous president? >> it's been maybe once a year during the roberts court time, but the number has increased in recent years and there are certainly signs that the number could increase a lot more going forward because you have a lot of individual justices who have
suggested we should overturned such and such ruling. host: would and overturning of roe v. wade open the door for states to reconsider their contraceptive laws? contractually -- potentially overturning the court's decision on gay marriage. >> justice alito says no. he says abortion is different because there's a potential human life involved there. not entirely clear based on his legal analysis why that would be the stopping point and certainly the mississippi governor was on meet the press refusing to rule out the idea that mississippi might ban contraception. there's a supreme court ruling called griswold that is the underpinning of row from a legal analysis standpoint. it establishes the right to privacy that road depended on. that is a decision that some
justices when they are testifying for the senate have said -- exactly why that would be settled law when row isn't this a little hard to say at this point. host: and let's hear from ralph in johnson city, tennessee. independent line. caller: good morning. your guests are very good. what i would like to say is that the u.s. flags over the usa seemed to be broken or out of line. i know the wind is blowing hard. i'm a vietnam veteran. i just can't understand why the flags are not flying correctly. host: at the u.s. capitol? caller: yes. host: they seem to be flying -- it's hard for us to turn around and look at the capitol, but i think they're doing ok.
elise is in springfield, virginia. independent line. go ahead. you're on with greg stohr. caller: good morning. host: you are on the air. go ahead. caller: i'm here. hello? host: go ahead with your question or comment. caller: i'm going to be really calm and level about this. i have been listening to this concern about this draft since it came out. i'm a nurse. my working experience has been in obstetrics. i have to tell you, i have been on the side of watching history take place. i was there before my degree in massachusetts before this law was passed and i remember the young girls. there was one in particular who hung herself because she was vilified for being pregnant. for the pastor from stockton, i want to remind him that it's not
just that ladies have to wait until they get married. i want to remind him about the gentleman. i think his name was brock turner. and how he raped a young woman who was unconscious. i want to remind him about the institutions that have been put in place to protect young girls and women from harm that have been failing them miserably. there was a case of a football team in ohio who went and party. they drugged the girls at the party and gang raped them, videotaped it and the coaches knew about it and did nothing. we've got larry nasser. we have the guy sandusky from penn state. we are being told that the girls have to control themselves when we have young men and men who claim to be part of a group called in cells who feel that
women's bodies are theirs. as a nurse doing a community vaccination at a high school -- actually a middle school here in virginia. i saw a 14-year-old boy who was a basketball player sexually harassed one of his classmates. but that was ok. those kinds of behaviors are dismissed as they are just boys. there is a new case now in south carolina of three young women who were raped by a 19-year-old and the court let him off with probation. he doesn't have to register as a sex offender. we've got warren jeffs, the head of a religious group out in utah and around the united states i gather who felt it was ok to take 12-year-olds as brides. host: a lot there. obviously greg stohr, a real hard and difficult social issue that the justices are grappling
with here. caller: -- >> it is. part of what justice alito said in his draft opinion is that we want the court to be out of this and that sort of debate to be happening among the people and their elected representatives, not totally clear that that will happen. these issues that the color was talking about are going to come back at the court if this draft opinion becomes finalized. some states will ban abortion in cases of rape and incense. we have new challenges to those laws as well as various others. host: when will the decision come down in this case? >> a big decision like this has been tending to come out near the term in recent years. host: let's hear from billy in brooklyn.
caller: i just wanted to make mention of you introduction to this program. the future of roe v. wade. i've got news for you. roe v. wade ain't got no future. two dozen states have trigger laws. how bad are the outcomes going to get in the states that have trigger laws. neither question is why would a leader or the supreme court not go after hormonal birth control or iud or plan b? life in the sense of fairly flinched human person begins at the moment of fertilization, plan b is murder and you should be locked up trump was saying i think there should be some form of punishment for the woman who
has a terminated pregnancy. they are prosecuting miscarriages in texas these days. these radical anti-choice forced by the proponents -- you want to reduce number of abortions, why not make contraception more acceptable -- more accessible. host: what is the status of the texas law? >> the law is in effect now. the supreme court refused to block it. they left a small avenue for a challenge to go forward against it. the lower courts said that avenue doesn't exist. people can file lawsuits in texas against anybody who helps facilitate an abortion before six weeks and abortion hasn't totally stopped in texas as i understand it.
it is significantly reduced. host: collins says cavanaugh and gorsuch possibly broken promise on roe v. wade. she said if this leaked draft opinion is the final decision on the reporting is accurate, it would be completely inconsistent with what judge gorsuch and cavanaugh said in their hearings and in our meetings in my office. we won't know what each justices decision and reasoning until the supreme court officially announces its opinion in this case. that's a statement from her office. these are in conversations prior to their nomination hearings. >> she said in conversations that she had with them privately and in the public testimony. the public testimony was they
both said that roe's precedent. host: settled law. >> they didn't say settled law. they said it's a president of the court which is potentially a different thing and that it was entitled to respect as a president of the court. people talked about casey being a precedent on how to look at star displaces -- started this isis story decisive stare decisis. host: republican line. go ahead. caller: thank you so much for taking my call. i sympathize with girls and women that have been abused or even raped and they have all kinds of -- or are in poverty and so on.
but two wrongs never make a right. and we have to respect life. if we can murder a child in the womb, why would anyone respect life in america or anyplace else that condones abortion? once the child is conceived, it has a right to be respected and loved and cherished and supported. and there are groups out there that will support women who are in need of help with their pregnancies. host: does justice alito get into those issues that all of when life begins, when a fetus is considered viable? >> he said we are not going to decide that. but he did recognize a lot of what the caller was saying, that
there is an interest on the stateside and she articulated what that interest is that many people do believe it is a human being. that was part of the reason justice alito said we should not be involved in this. host: richard in florida, you are on the air. >> i would like to know how it's possible under the texas law allowing anybody to sue the doctors or the providers for an abortion after six weeks's. how they can have standing in the court. you have no relation, no knowledge of the person you are suing. don't you have to have some standing before the court to allow you to collect civil damages? a doesn't seem to make any sense
and the fact that the federal courts haven't thrown it out seems amazing to me. it seems like it's such an vigilante form of justice that it's very scary. >> that's a great question. this will be standing in the texas state courts. it's not u.s. constitutional standard. the point of the texas law is that that argument can still be made, but it requires -- providers are now at risk of massive liability if they rely on an argument like that, go ahead and perform abortions and then get sued. have to count on the texas courts to agree with them and say yes indeed, you are right.