Thanks for joining us here on 9 News
Plus I'm Chris Bianca and joined by 9
news legal expert Whitney trailer for a
bit on the of a high level look at the
leaked Supreme Court preliminary decision.
I'm going to read from this a little bit
here that would overturn Roe V Wade,
the 1973 landmark case that made
abortion legal essentially at the
federal level and the leaked draft
last night that was released.
I should say back on Monday night
showed that at least five of
the Supreme Court's 9 justices.
Preliminarily supported the
overturning of Roe V.
Wade, which again would make legal
abortion no longer federally.
The law of the land.
It would make it a state by state issue,
so we're going to get into some
high level questions.
Again,
a lot of you might have questions about this,
but my first question and I'm
starting to sounds kind of overly
simplistic for a lot of you.
A lot of you out there may know
the answer to this already,
but for those of you who might not
know the answer to this question,
first question I've got is why is this?
Overall such a big deal,
right? Well, I was getting
nervous that I wouldn't know how
to answer that first question,
but I think my kid, right?
No, I think. Can answer it.
It is a big deal because obviously the
the issue of abortion is is deeply seated
with with folks and the reason it's
become such a legal issue is because,
as you mentioned in 1973,
when the Supreme Court ruled that
it was a federally protected right
because a woman has a right to privacy,
then it became even more politicized.
And since then,
states have been bringing case after case,
essentially trying to overrule it.
And so now that's essentially
at least in this first.
Liminary draft what it appears the court
is doing so from a legal perspective.
There are also the Supreme Court is
overturning its own precedent that happens.
It's happened before,
it's many times,
but it's not necessarily common,
so that's also a big deal,
right? So that's a big part of it,
and obviously an important
part of what I've also.
We've also already discussed is
that this is a preliminary ruling,
so it is a draft,
and justices have the right to
change their minds after the draft.
And first of all.
Again, if you could explain what is a draft,
what are we talking about here
and what are the chances in your
view that the justices change
their minds and perhaps does this
leak increase those chances?
Well, the leak is super
concerning and I'll explain why,
because the process that the justices
go through maintains the independence
and the objectivity of the Court.
So what happens is when the justices
deliberate amongst themselves, they're alone.
There's no other party,
so they can be free to deliberate.
They can. They argue they try
and change each other's minds,
and So what happens is after oral argument,
which in this case happened in December
the they took a preliminary vote which
is not unusual and the vote was five.
According to this five
conservative justices to two.
So because there was a majority,
what happens is then the Chief Justice
assigns the case to be written by somebody.
That's justice alito.
And then what happens is that they write
drafts and they circulate it amongst them.
And then they all write a dissent.
And they do this several times
before a final draft is issued.
And during those first those deliberations
orally, it together in a room,
and then when they get the
drafts going back and forth,
they can actually persuade each other.
So is it possible that they
change their positions?
Yes.
Is it possible that they change
their rationale in different ways?
Yes, in this case,
it's probably not likely because
of the nature of this and the.
The I guess the serious divide that I
I would be surprised if any of the the
the justices changed their positions,
who at least already have
indicated the five versus 2
you mentioned this already,
but the fact that this was
leaked out is highly unusual,
if not unprecedented.
Is that is the unprecedented
part correct as far as you know?
And why is it such a big
deal that this leak came
out? It's a big deal, because now it
feels like this is being politicized,
because before the justices now
even rule on their final opinion,
you now have this groundswell of people.
There's going to be protests on both sides,
so it is dangerous. I had never heard
of a preliminary draft being leaked,
and the little bit of research I saw was
it hasn't happened in modern day cases,
so this is a problem.
Because you remember,
we have these three branches of
government and they're supposed to be.
Checks and balances and if we start
feeling that the judges are political
and partisan and we're seeing that more
and more with the confirmation hearings
and they're getting more partisan.
If that starts to happen,
then judges are essentially legislators.
They're just essentially going to
rule in the way whoever appointed
them that type of thing,
and that's actually what justice Alito said,
he said.
This should not be an issue
for the federal court.
This isn't a constitutional issue.
It should be with this.
States where they elect
their representatives,
and so it will reflect what
the states want to do is the
notion behind Alito's position.
Overturning Roe of 1973
interesting Supreme Court Chief Justice
John Roberts issued a statement on
Tuesday morning a confirming that this
was indeed an accurate leak, but B.
He also said that they're launching
a full investigation into that leak.
What would the punishment be and
how likely is it? I know this might
be a little bit outside your room.
How likely is it that they figure
out who leaked this and why? Well,
I would have to think they could figure
that out with our computer forensics and
the privacy around the Supreme Court,
they should be able to. I'd be
surprised if they didn't figure it out.
I don't know what potential
crimes you know there may be.
It may be. I don't know.
There may be something specific to this,
or it could be misuse of government
property or something else so.
And whether they find out
or not is a question,
but it seems like whoever did it was
trying to essentially politicize this.
And you know,
it sounds like they're Congress.
There's been several senators
in in Congress folks saying we
need to investigate this as well,
so we may get to the bottom of it
all, right? I'm going to put you
on the spot here a little bit.
Whitney, just Samuel Alito,
who you mentioned who
wrote the majority opinion,
said that Roe V Wade was quote egregiously.
Wrong and quote to begin with,
citing he said that there were
no guarantees in the Constitution
for the right to an abortion.
He also studied the 14th amendment.
What's your opinion on his logic?
Again, I know I'm putting you
on the spot a little bit here.
Well, I mean, like most of the justices
in the Supreme Court opinions,
they can be backed.
These judges are highly intelligent
and they can essentially find reasons
within the law to justify their position.
And here essentially, what justice?
Toledo is saying is that look,
you know this is the activist
passive type of argument.
So when you hear people saying
it's an activist court,
that means it's a court that wants to
get involved in public policy issues,
whereas a passive is court or a
passivism judge is one who only
looks at issues that are purely
related to the Constitution and
so justice Alito was saying,
look the abortions not mentioned
in the Constitution.
And it's also not necessarily baked into.
Who we are as a society.
So he's saying the four Roe was
based on a 14th amendment due
process argument about privacy
and what he's saying is that look,
these things are not constitutional.
Therefore the Supreme Court
shouldn't be looking at them.
They should be back with the states
with their and I think I have the
quote it says the issues around
abortion are to be resolved.
Like most important questions in
our democracy by citizens trying
to persuade one another.
And then voting,
and so it one of the to get
back to your first question.
Why is it such a big deal?
This is also the federal government
and states rights which goes
back to the Civil war, right?
And who should really be
deciding these issues?
By the way, the 14th amendment quickly,
my general understanding of it is
basically equal rights for equal citizens.
It came after slavery was enacted in
1868 and is considered one of the
more important amendments out there.
So again, for those of you who might not
know what the 14th Amendment is with that.
Line here Whitney,
based on what was specifically
addressed in that draft opinion
and Elias interpretation of it
and the Conservatives courts,
conservative courts.
What other implications could
there be from this ruling?
Well, this is going to be significant.
I think in a lot of ways,
because a number of states actually have.
They already have laws in place.
Some of the states,
even when Roe wasn't an act enacted,
they didn't abolish their abortion laws,
they just didn't enforce them.
So now there's a question,
will those be back in place?
But lots of other states enacted new laws,
some of them actually create
a felony for the doctor.
They can be imprisoned for up to six years,
$100,000 fine,
and because some of those say you can
only perform an abortion if it's an
emergency medical emergency and the
mother's life is in is is in danger,
and so now you're going to have
doctors faced with the decision.
Is this mother's's life really in danger?
And if it?
If they perform the procedure
and then somebody says no,
it wasn't,
then that doctor is going to have
to prove that that that patient's
life was actually in danger,
and where that creates a conflict
is if the doctor's nervous about
getting sued under the abortion laws.
If they say no,
the woman's life isn't in
danger and the woman dies,
then you may have a medical
malpractice claim.
So you're going to have issues there.
And then I think you're going to have in our.
Political races across the country
are going to be super even more
intense than now because now
it's up to the states to enact
whether they're going to ban
abortion or they're going to
permit it like we did in Colorado.
And so now these races are going
to even have greater implications.
With that in mind, Colorado is
currently seen as a bit of a refuge.
What else would need to be
done to solidify that status,
or potentially from the other side
of things, to casually chip away
so? Colorado in like many states,
I think 26 states have laws
that ban abortion on some level,
either totally or or on some
level if Roe is overturned.
And then there's a handful of states
around 20 states that have laws
protecting the right to reproductive
health and and and abortion rights.
Colorado enacted such a law in April.
The legislature passed it,
Governor Polis signed it.
So it's currently law, whatever the.
The courts do on this in Colorado.
It's essentially status quo.
You can still, you know,
get this reproductive right,
and the abortion now.
This could be changed by another
legislature if in two years there's you
know different senators and different,
you know they can overturn this
with another statute you'll have,
you could have a governor years from now
who signs a different bill into place.
The only way to really sort of solidify
this is to get a constitutional
amendment which there have been
efforts on both sides in Colorado,
and it just hasn't passed because there
you have to get 55% of the voters.
And is it the same federally,
federally? To get an amendment?
Is much more complicated and so federally.
They've been trying to pass different
laws though, protecting abortions.
So essentially, if the court says, you know,
the court overrules will grow and says hey,
it's up to the states,
then a legislative body can pass a
law saying either you're permitted to
have abortion in these situations,
or you're not.
In these situations,
the Congress last year tried to pass
a law it got through the house.
They didn't get through the Senate,
so federally it'll be more challenging,
I think than than in some states
my my final main question for you
here Whitney is while addressing this
selitto specifically addressed cases
like over Obergefell versus Hodges,
which legalized same sex
marriage about 10 years ago.
There are a lot of discussions
right now about the likelihood of a
domino effect for rights like this.
Also to be reversed by the court,
how would this change the
previous same sex ruling?
Well, I don't think it will,
but I think the idea is that.
This is the court overturning a very
established precedent so you had Roe in 1973,
which was essentially affirmed by Casey
in 1992 saying that you know they made
the distinction between viability,
so they said essentially it's 23 to
24 weeks before a child is viable.
And so before fetus is viable,
can live outside the womb and
therefore before that time period,
the Supreme Court in Casey said,
yeah you can.
Legalize abortion,
you can't restrict it before
that time period.
So now you're going to see
possibly this is the concern.
More of these types of rights being
chipped away at and you just we just
had the oral argument on the football
coach praying at the 50 yard line.
And that was one where the court
is expected to rule in his favor,
which is essentially expanding sort
of religious rights religious.
Accommodation in public settings.
So I mentioned that that there
is a set of cases that it looks
like the court is moving in a more
and more conservative direction
and this is consistent with that.
All right? Well a lot of
information there to unpack.
Hopefully this answered a lot
of your questions about this,
but Nine News legal expert Whitney trailer.
We appreciate a few minutes
of your time here.
Well, it's good to be here and I'll
just say you're going to see a because
folks may have other questions.
You're going to see litigation,
so people are going to
challenge these on both sides.
Saying, hey, it's unconstitutional
if somebody is not permitted to get
an abortion in a certain state,
they'll challenge it,
and so this is not over,
but you're going to see it in
different states going different
ways and we'll have case after
case further defining what you
know what those parameters are.
So it's going to be continued to evolve,
so there'll be more questions and
more answers as we go forward.
And we know we'll have you for all those.
Feels like there's always some sort of.
Eagle, yes interests to have you on
so again happy to have you on board,
but Nine News legal expert when you travel.
Thank you for a bit more on the
big news this week about the
potential over ruling of Roe V.
Wade. Thanks so much.