Cronkite school of journalism at
Arizona state university.
Judy: The leaked early draft of
the supreme court's majority
opinion overturning the federal
right to an abortion has
advocates on both sides of the
issue primed for battle.
John yang begins tonight's
coverage.
John: Judy, after the prospect
of the court overturning roe V.
Wade led to weekend protests
outside the homes of some
conservative justices, including
Brett Kavanaugh, the white house
today cautioned against threats,
violence, or vandalism.
The case current -- currently
before the U.S. Supreme court is
the first major challenge to roe
V. Wade since a 1992 case called
planned parenthood of
southeastern Pennsylvania V.
Casey.
And while the court upheld some
restrictions on abortion in that
case, it also reaffirmed a
woman's right to choose to have
an abortion before a fetus is
viable, and to do so without
undue government interference.
Kathryn kolbert argued that case
for planned parenthood, and is
co-author of the book
"Controlling women: What we must
do now to save reproductive
freedom." She joins us now.
I have to ask, what was your
reaction to the draft opinion
that was leaked?
>> I wasn't surprised.
I have been saying for some time
that the current court, the
ultraconservative court was
poised to overrule roe V. Wade.
But I was surprised by its
vehemence.
I think the way the decision was
crafted not only showed the
closeness of these particular
justices to the antiabortion
movement.
They used language from the
antiabortion mu -- movement,
arguments put forward by those
who oppose abortion, but more
importantly they opened the door
to eradicating a host of rights
based upon the 14th amendment.
I was surprised by that.
I thought it would be much
narrower.
John: The opinion in the case
you argued and won, the justices
spent a lot of time talking
about precedent and the
importance of president to the
institution -- precedent to the
institutional integrity of the
court.
In Alito's draft he wrote
precedent is not an inexorable
command and it is at its weakest
when we interpret the
constitution.
Justice comment -- justice
comment -- justice Thomas says
precedent is a mantra when we
don't want to think.
You talked about the impact on
other cases and rights.
Talk about that, what this might
vote for the future.
>> I think the critical part of
the decision is, five justices
of the court said they can
overrule a long history of
support for civil-rights and
civil liberties because they
individually disagree with it.
That has never been the case.
The doctrine says that when law
is made, it ought to be
respected from generation to
generation and only in really
specific circumstances, when
underlying law has changed, when
the circumstances and factual
underpinnings of the case have
changed, it ought to be upheld.
The hard part is, let's think
about this.
We have had five decades of
support for roe V. Wade.
Entire generations of women have
relied upon this decision.
And frankly, order their lives.
Millions of women obtained
abortions as a result of roe and
that is being rolled back
because five individuals decided
in my view, willy-nilly, to
change the law.
I think that is a hit on the
institutional integrity of the
court.
John: Justice Alito I think
tried to address that when he
wrote abortion is different from
the other sort of liberty based
rights the court has found, like
intimate sexual relations,
contraception and marriage.
He said abortion destroys a life
so it is different.
What do you make of that?
>> First of all, the rights
guaranteed in row are what I
think of as reciprocal.
It is the right to make a
decision to have an abortion,
and to decide to carry a
pregnancy to term.
To go both ways.
It is protecting the decisional
interest of a woman.
That is no different no matter
if you are using contraception
or deciding to be sexually
active with the person of the
same sex or you decide to enjoy
same-sex marriage or even
interracial marriage.
All of those rights are based on
the liberty clause of the 14th
amendment, which says important
decisions about all people's
lives ought to be protected.
They ought to belong to the
individual and not politicians.
John: The draft is marked first
In the case you won, referred to
as Casey, we learn much later
there was a first draft that was
quite different from where the
court ended up.
Tell us about that.
>> Right after my oral argument,
the court retired to their
conference room.
There was a vote of the justices
and five justices did vote to
overrule roe. Chief justice
Rehnquist wrote a draft opinion
that is much narrower than
justice Alito's opinion, but
justice Kennedy at the last
minute changed his mind, joined
with justices souter and
o'connor, and came up with the
decision in Casey which
protected the right to choose
abortion, gave states greater
ability to restrict those rights
but ultimately meant in the last
two decades we have legal
abortion in this country.
The interesting part of that is,
everyone says that could happen
here.
I don't think so.
There is no justice Kennedy on
this current court.
All of the members in the
majority, the five justices who
joined, the four justices who
joined Samuel Alito, are very
conservative.
They come from the antiabortion
movement.
They were nominated on the
promise of reversing roe and I
don't see any of these
ideologically based justices
changing their minds as justice
Kennedy did.
John: This was a first draft.
I think it is two months old.
It is hard to believe it isn't
already obsolete, that there are
more current drafts.
Do you think the language will
change?
Do you think anything will
change?
>> There may be some moderation
in the language, but the reality
is, there are five very
ultraconservative justices who
are intent on undermining the
ability of women to be equal in
society.
John: Thank you very much.
Judy: On tomorrow's newshour,
we'll hear from a lead attorney
opposed to abortion rights.