tv Firing Line With Margaret Hoover PBS May 13, 2022 11:30pm-12:00am PDT
with roe v. wade in the balance, an historic leek, and a crisis of legislate mat si at the court, this week on "firing line." it was a supreme court shocker, an unprecedented leek of a draft opinion that would overturn the decision that legalized abortion in america. justice samuel elito writing that roe v. wade was wrong from the start. >> if this draft resembles the final draft, this will be probably unnecessarily polarizing. >> she is a legal historian and constitutional law professor. she's written four books on the history and politics surrounding roe and signed a b in the fall. >> she spends pages and pages
identifying roe's defects, but roe just made it up. >> he's a conservative legal thinker and commentator. and he coed itted several volumes of the work. with backlash building -- >> how dare they tell a woman what she can do and cannot do with her own body. >> and cases mounting about what the decision might mean, what do they say now? >> "firing line" with margaret hoover is made possible in part by robert, charles r. swab, the fair weather foundation, the family foundation, and by craig new mark if i -- corporate funds
provided by stevens inc and pfizer inc. >> you're both attorneys with years of accumulated expertise about the supreme court, the constitution, and our laws in this country surrounding abortion. you have different perspectives on these issues with, and i look forward to a thoughtful conversation with both of you on these topics. welcome to "firing line.." >> thank you. >> thanks for having us. >> last week, politico published a stunning leek of a draft supreme court opinion that will, if it holds, overturn roe v. wade. it will overturn the ability to legalize abortion to the states for the first time since 1973. in the leaked draft opinion, justice samuel elito writes, quote, roe was agreejsly wrong
from the start. from a conservative legal perspective, explain to the audience why roe was wrongly decided. >> well, justice spends pages and pages identifying roe's defects, but the broad stokes, roe just made it up. there is nothing in the constitution that explicitly or impolice italy supports the notion of a constitutional right to abortion. as you indicated, that doesn't mean the states don't have to power to recognize and cree abortion rights, and the primary constitutional clause that had been relied on in roe was the due process clause of the 14th amendment, which applies that the state should not deprive anyone of life, liberty, or property without due process of law. this has been interpreted by some as meaning there are some
liberties you cannot be deprived of no matter what. what he did was mark carefully through explaining why abortion, given its long history of being a crime, does not qualify as a liberty in the american tradition that could be the basis for a constitutional right under so-called due process. >> mary, there are some liberals who have agreed in the past that roe was poorly decided and poorly reasoned, which doesn't mean they thought it should be overturned necessarily, but even the late justice ruth bader ginzrg said the crt went too far in the change that it ordered. y was it a bad decision on legal grounds? >> i think there were progressives that argued for a long time that roe would have been more persuasive if it had
focused on the idea that treating someone differently because they're pregnant is often the same thing as treating them differently because of sex. that was the argument tt she favored and thought would have been a harder argument for conservatives to disinterred lodge than the kind of substantive due process argumen that the court ultimately adopted. the other concerns that progressives expressed over time was one about times and scope. and i think one of the questions i think facing the supreme court now as this draft may or may not become final is whether this court is repeating the mistakes of the roe court in terms of moving too quickly, things that will intensify what will be an explosive reaction regardless of what the court does. >> ed, are you in the camp that refers to this as activism?
>> absolutely. what it did was invent a constitutional right that validated the abortion laws of all 50 states. at the same time that the states were engaged in a serious process of whether to reform their laws. by any definition of judicial activism, roe v. wade is exhibit number 1. >> mary, on the flip side of this, is overturning roe v. wade an example to you of judicial activism? >> part of the problem with roe was kind of the cultural devastation it left in its wake and produced. and then to say, we really don't care about that kind of polarization. i think if that draft resembles the final draft, this will be unnecessarily polarizing in some ways, even for a court that's going to overturn roe. even for someone who's not
excited about the loss of faith, i'm not excited by the court taking a step that might undermine some people's perception of its legi-- >> in res ro spekt, the better argument to uphold abortn as a constitutional right would have been through the equal protection clause of the 14th amendment because it deprived them of autonomy over their bodies. mary, as someone who has written about the history of roe, tell us why the equal protections clause was not used. >> in part because that was what the court's precedent had focused on. they alluded about marriage, about parenting, about the desired to procreate when the state didn't want you to. so i think it was logical for, at the time, for abortion rights
supporters to connect abortion to these precedents. >> the equal protection clause is also an argument used by those who argue against the constitution nalt of abortion. states that abortion restrictions are constit constitutionally -- could the supreme court rule to restrict abortions nationwide using this kind of argument? >> there's zero chance the court will. there's language in justice elito's opinion that states, i believe the constitution unequivocally leaves this matter to the processes. so the argument you referred to is much more persuasive than i first thought. i don't know if i'm going to accept it, but i find it much more powerful than roe itself. >> do you think the language in
that opinion is enough of a guardrail to not influence is opinion of future justices in future cases? >> no justice has ever come anywhere close to embracing this concept. so can i say categorically that that language would enclose it in the future if somehow you were to get five justices on the court that bieved in this argument? i'm not going to go that far, but i wld bet every dollar i have that it's not going to happen. >> you wrote that if the value of life makes it into the decision, it will be an invitation to return to the court and ask the conservative justices to hold that the constitution recognizes the personhood of the fetus. ed has just said that he doesn't see this happening. why are you persuaded this is a real possibility? >> well, i mean, i think part of
the reason i'm persuaded is the pro-life movement has not been about returning the matter to the states. it was called a right to life movement because people who are part of the movement believe that abortion is a violation of human rights. so it will not be the case that the movement will be content to leave this state states in part because it's large blue states for the most part where abortions in the united states happen. so to the extent we're going to see a decline in the abortion rate, it will be modest. i don't think this will happen soon. but i'm not sure there are potential votes nor on the court in five or ten years. it's gaining -- that wouldn't have been the case several years ago. i think if we're talking about right now do i think the supreme court is going to hold abortion to be unconstitutional, ed and i are probably on the same page about that. i don't think that's true if you
look at a broader time horizon. so i think it's probably a mistake to underestimate what people are capable of doing through organizing because we as a country have been doing that for decades. >> ed, do you want to comment on mary's analysis? >> sure. this is just a political prediction, but i just think as a matter of reality, i don't see the court getting ahead of the people in that way. >> even though, i mean, one could argue the court is ahead of the people in this way, all the recent polling suggests the majority of americans are in favor of roe remaining in place. >> i don't think we can read too much into these polls. beyond that, i would say it's a much bigger step for a court to entertain a person argument when the american people are still trying to figure out how to reconcile the sharp conflicts
that this issue raises. >> in november of 1972, just two months before the roe v. wade decision came down, attorney roy lucas was a guest on the original "firing line" and he was arguing in defense of abortion rights. lucas, as i'm sure you both know, was credited with adapting the theory and applying it to the argument that was used in row. listen to this moment when he was asked a question by a physician on the panel. >> what is it exactly that makes abortion a legal issue? >> i don't think it -- i don't think there should be laws on abortion that impose restrictions on women like this. i don't think it should be a legal issue, and i agree with physicians that say lawyers, mostly male lawyers, have been messing around wh this issue for too long. >> now, it seems to me that 50 years later, this question is still applicable.
what exactly is it that makes abortion a legal issue? mary, to you first. >> well, different parts of our government have been making abortion a legal issue for better or worse now for cent centuries. so i think the objection that abortion shouldn't be a legal issue could be raised by people on the right and left because lots of people have been making it part of the law for sometime. >> bottom line. it's a legal issue because it's something that folks think the law ought to care about. >> starry decisive is latin for to stand by things decided. it is respect for precedent, and precedent was a key reason why it was upheld when casey came along in 1992. in their plurality opinion that reafrmed roe, justice sandra day o'connor and -- wrote,
quote, it has not been unworkable. an entire generation has come of age free to assume and define in the capacity of women to act in society and make reproductive decisions. justice to conner, kennedy, and suitor were all republican appointees. as a legal historian, how do you respect their decision to make precedent? >> i think the joint opinion essentially said that while people may not like roe, the idea was that people had kind of ordered their rooifs around the idea that abortion would be at least not criminal if theeed for it or the desire for it arose. the question really being, you know, does equality for women and other pregnant people in the united states have to do with access to aworgs or not. and you see the draft opinion grappling with this. it's really a key question in the case. >> you know, there are
conservative legal scholars who argue that overturning roe v. wade could be dangerous. prominent federal society member recently said of roe, i don't think it should be overruled. i think it's too late. i think the starry desies is portion is absurd. how do you explain is arguments in his draft opinion? >> well, starry considerations is very broad. no judge has ever said an overruling can't be overturned. we see that the cas court, contrary to what it purported to do was not able. and i think elito's brief reflects a deep faith in our american system, in t american people, in the capacity of
people to work this out state by state in a way we can enable enduring the position. >> several cases precedent has been overturned, overturning -- rsus ferguson. do you see overturning roe as different than the other examples elito cites? maybe explain what you mean. >> well, sure. judge scott was the ruling in 1857 that held that congress lacked the authority to ban slavery in certain federal rritories. it deprived the american people of their ability to accord basic protections to whole class of human beings. roe, in the same way, deprived people in various states to declassifying human beings.
i'm not saying they're just like slaves, but both involved the implication of due process to empower the court to deprive the american people of the ability that the constitution gives them to craft protections for these being. >> i just want to be clear. it sounded like you're likening an embryo or fee cuss that is not viable to slavery. >> no, i'm not. i'm drawing an analogy based on principle saying in both roe and scott, the court invoked due process to prevent the democrats from operating in this basic area of conferring protection to a class of human beings. we need not go further than that. >> mary, what do you make of the examples that justice elito gave of overturning previous
precedents in this draft? >> people a going to read that, whether this is the court's intention or not, as comparing people who support abortion rights to segregationists. i think if you're going to do that, you best do that in a very careful way, or you are going to potentially inflame debate more. i don't know if you're the court why you would use that kind of language at the time when you know this is ahis argument, ed, that the language justice elito choesz to use is unnecessarily inflammatory? >> arguments made by people on both sides of the abortion issue, look, i think it's no surprise that if you're going to be talking about overturning significant precedents that you can be talking about brown and ferguson. i think what we're doing is talking about a momentous case
that was overturned and a momentous ruling. >> i would like you to take a look at what some of the other justices said during their confirmation hearings about precedent and roe v. wade. >> row have had wade is an important precedent of the supreme court. it was decided in 1973, so it's been on the look for a long time. >> i think the doctrine is very important because it reflects the view that courts should respect the judgments and wisdom that are embied in prior judicial decisions. it's not a -- command, but it is a general presumption that courts are going to follow precedents. >> the supreme court has held in roe v. wade that a fee cuss is not a person for the purposes of the 14th amendment.
that's the law of the land. >> i said that it's settled and respected. >> roe v. wade clearly held the constitution protected a woman's right to terminate a pregnancy. >> many, including house speaker nancy pelosi, chuck schumer, have accused the justices of lying in their confirmation hearings. mary, in your view, is that fair? >> i think they didn't answer the question. unfortunately, no one answers questions in supreme court confirmation hearings. people may hear what they want to hear in those kinds of nonanswers. i think the justices as have justices going back to the 80s have done their best to dodge any kind of substantive answer to any question about anything, especially about something like roe. and i think that's what we mostly saw in those clips.
>> mostly. but you both heard cavanaugh say that roe is settled as precedent. that's a quote. settled as precedent. ed, how do you perceive what people will see as a flip flop? >> i think they shouldn't. a supreme court ruling is precedent. every ruling is settled as precedent. and therefore, you apply the starry decisis considerations before making a decision to overturn it, and you overturn only if those factors support overturning. so i think what is spelled out in the elito draft is entirely consistent with the testimony of each of these justices. >> you know, during his confirmation hearing in 2006, justice elito said the court, quote, should make its decisions based on the constitution and the law and should not sway in the wind of any public opinion
at the time. now, the court is standing -- i know you have dismissed the polling, ed. but nearly 2 million americans are opposed to overturning roe v. wade. mary, i know you said you're not surprised. but you also said you remember a time when the court wouldn't stray too far from public opinion. what's changed? >> i think the way the supreme court processes have worked, thank changed. they'l be easy to confirm or receive biparsan support. i think the conservative legal mochlts approached to supreme court nominations has changed. and that's especially true with respect to abortion. i think as a historian of this topic, i was expecting a court with these people on it would reverse roe because it's an argument of faith now, and as ed
said, roe is the primary example of judicial activism. if you put together people who hold that belief, you would expect them to sooner or later act on that belief. whatever they confess in congressional testimony. >> ed, what mary has described is the imminent decision of roe v. wade has been in the making for decades. is that fair? >> well, absolutely. i think that roe has long been target number one for the conservative legal movement as an unjustified ruling that deprived the american people of their ability to legislate on this very important matter. >> there are man other supreme court rulings that rely on reasoning similar to roe. there are people asking if other precedents will be overturned. quote, we emphasize our decision concerns the constitutional
right to abortion and no other right. no other opinion should be cast out on precedents that do not concern abortion. however, mary, you tweeted that there is quote real tension between it reassurances about other decisions. are other decision related to issues like contraception, marriage, now at risk of being overturned? >> i think not in the near term, but justice elito wrote on same sex marriage was wrongly decided and should be revisited. for reasons i think very similar to those laid out in the draft. at the time the 14th amendment was written that no one contemplated theight to same-sex marriage. i would not be surprised if further down the road, justices who have expressed profound concerns about due process and other conflicts including same-sex marriage where you have roberts, elito, thomas who all have voted in a particular way
on that already being open to revisiting those precedents precisely because the methodology you see in this draft would generate a similar answer if you apply it to those matters. >> ed, how can one entertain or isolate this logic in future cases? >> well, i think the question is whether there's athing in this ruling that leads to overruling these other precedents. look. i argued strongly against recognition of a constitutional right to same-sex marriage. i believe you look up the factors, they apply very differently. i think what we have here is a parade of horribles that people are trying to trot out. i move to try to intimidate the justice systems and not overturning roe. >> thank you for joining me on "firing line." >> thank you. >> thanks for having me. >> "firing line" with margaret
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