On Thursday, the hosts and guests on CNN’s Day of the NewThey were still reeling from the prospect of Roe V. Wade being 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.”
However, striking that balance or overturning Roe would only delegate to the States the ability to regulate abortion. 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.
The discussion began to drift away from the reality. Hoag proposed that allowing abortion laws to be left upto the states would constitute a violation the 14th Amendment.
That’s what is so terrifying is leaving this decision up to the individual states. If we are able to go back to the period following Civil War reconstruction, then the 14th Amendment’s purpose was to safeguard the rights of those who were excluded. Also, I am referring to the enslaved people of color. The 14th Amendment, therefore, protects individuals’ rights to dignity and liberty.And then, to let that be up to the states at the whims of the majority vote of state legislators. It directly contradicts what we have with Amendment 14 and 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. There are 20 states or more that ban abortion. Liberals prefer to see every state legalized by the Supreme Court.
Vicks and Tide sponsor this segment.
The full transcription of this segment can be viewed below, by clicking on Expand
Day of the New
12/02/21
6:40 AM
JOHNBERMAN: It is possible that Roe V. Wade could be overturned. This case protects women’s rights to abortion. The Supreme Court heard two hours of intense and often tense arguments about a case that could dramatically alter the lives and choices for millions.
(BEGIN VIDEO CRIP)
SCOTT STEWART – Roe v. Wade, Planned Parenthood and Casey still haunt this country. These laws have no foundation in the Constitution. They do not belong in the history of our country or its traditions. They have damaged democracy. They have poisoned law. They are unable to compromise.
JUSTICE SONIA SOTOMAYOR This is not possible, according to me. It’s not possible for us to live if we believe it is all political. What will make the court last?
(END VIDEO CLIP).
BERMAN – The Mississippi law banning abortions within 15 weeks of conception, and with no exemptions for rape/incest. The court appeared to be poised to maintain the Mississippi law for 15 weeks. A conservative majority was split on whether it should stop at that time or repeal Roe entirely, which allows states to prohibit abortions anytime or completely. Alexis Hoag is an assistant professor at Brooklyn Law School. Jill Filipovic, CNN columnist and lawyer, will be joining me. Alexis Professor, let me start with you. This distinction is the most significant thing about this morning. There are at least three justices that want Roe to be thrown out. Then you might have two more who would like to state that Mississippi law is able to stand starting at 15 weeks. How do you distinguish? This distinction is important.
ALEXIS HOAG : It’s very important that we know the identities of which justices. To the left, we see Thomas, Gorsuch and Alito. Kavanaugh or Barrett are then in question. What could possibly happen? Chief Justice Roberts wants to preserve the legitimacy and independence of the court. He might try to thread his needle in order that Roe is retained while Mississippi’s ban remains. To me that’s the best scenario. Jill is actually a law student with me. It’s terrifying. It is terrifying.
JILL FILIPOVIC: Definitely. The viability standard is being eliminated. So, the law currently states that abortion cannot be banned in all 50 states after the point when fetal viability has been reached. The point at which the foetus is able to survive without the mother’s help. This happens after approximately 15 weeks of pregnancy. Even if Mississippi’s law is upheld to the 15-week rule, Alexis states that the best scenario would be for the baby. We are throwing out decades of Supreme Court precedent and giving this enormous wildcard to the states. If it is not viable, we can ask why the 15-week standard was not upheld. Why not six weeks or four weeks? Without actually doing so, it creates complete legal chaos and functionally guts Roe. This is the most compelling case.
BERMAN : You consider that to be your best case. There is an alternative, the Gorsuch Thomas Alito Way. This is to completely eliminate it. It can be completely overturned, and each state will decide. That means there could be as many 20 or more states that ban all abortions.
HOAG: Exactly. It is very frightening to leave this up to individual states. If we go back to the Civil War reconstruction, then the 14th Amendment’s purpose was to safeguard the rights of those who were excluded. Enslaved blacks are what I am referring to. The 14th Amendment, which protects individuals’ rights to bodily dignity and liberty, and leaves it up to states to decide, is directly contrary to what we have in the 14th Amendment.
BERMAN, Let’s discuss Brett Kavanaugh. Together with Amy Coney Barrett and Brett Kavanaugh, you have identified Brett Kavanaugh to be one of the major unknowns. Maybe John Roberts might be interested. John Roberts suggested that 15 weeks may be okay with him. We’ll just leave it at that. Let’s now discuss Brett Kavanaugh. Brett Kavanaugh, at his confirmation hearing, spoke out about the importance precedent. It seemed that he strongly believed in precedent. Roe, Casey were the topics he discussed. Take a look at this.
(BEGIN VIDEO CRIP)
SEN. DINNE FEINSTEIN – What do you think your current position is regarding a woman’s freedom to choose her gender?
JUSTICE BRET KAVANAUGH: As a judge, —
FEINSTEIN is a judge.
KAVANAUGH, As a Supreme Court Judge, this precedent is important. Roe v. Wade, Planned Parenthood, v. Casey have been repeatedly affirmed. Casey is precedent after precedent which is an important factor.
(END VIDEO CLIP).
PRECEDENCY: The precedent is the rule. This was sufficient to persuade Susan Collins (pro-choice) to cast her vote for Brett Kavanaugh’s confirmation. That was what she stated at the moment.
(BEGIN VIDEO CRIP)
SEN. SUSANCOLLINS: I asked him whether Roe is settled law. He indicated that he was in agreement with Justice Roberts’ statement at the nomination hearing that Roe is settled law.
(END VIDEO CLIP).
JILL and Brett Kavanaugh were quite different yesterday. He created a long list of Supreme Court decisions that had been overturned. It seemed to indicate that precedent did not matter to him. Then he added this.
(BEGIN VIDEO CRIP)
KAVANAUGH – This issue is difficult because you cannot accommodate both your interests. The only way to make a choice is by choosing. This is the core problem.
(END VIDEO CLIP).
BERMAN It’s quite a change. He said it yesterday. It’s a significant thematic distinction from 2018’s statements.
FILIPOVIC We are not all fortune-tellers. We can’t predict the future, and we don’t know what it will look like. Feminist groups were scathing about Kavanaugh’s nomination, knowing that he would vote against Roe. Susan Collins was aware that he would vote against Roe. Every sentient being who’s paid attention to Brett Kavanaugh and his history will have figured out that the comments he made about precedent are a bit of an euphemism. It was clear that he said, “All right, well I care about precedent,” and that was fine. He can then say, that, and it can be true. Then, as judge, he may decide in this case that his precedent arguments are stronger than other arguments. This is not surprising. It was all predictable. Susan Collins should, could have foreseen it.
BERMAN: CNN asked her about it last night. At the time, her answer was that she had not yet seen it. To find out her feelings about Brett Kavanaugh’s comments, she needed to see the video. Jill, Alexis, classmates. It was a pleasure to be reunited with old classmates. Thank you so much for sharing your time with us.
HOAG: I’m grateful.
FILIPOVIC: We are grateful.
About Post Author
