Politico.com has obtained a draft majority opinion from the United States Supreme Court, not a ruling that has been issued, but it has been drafted by conservative Justice Samuel Alito which overrules Roe v. Wade and Planned Parenthood v. Casey effectively clearing the way for Republican controlled states to and any future Republican controlled congress and White House to ban abortion in this country making it illegal. "Politico": Draft opinion shows Supreme Court has voted to overturn right to abortion.
LAWREWNCE O`DONNELL, MSNBC HOST: Good evening, Rachel.
And what we`re witnessing tonight is the loss of a right, the loss of a constitutional right. And that is something that you and I have never borne witness to in our lives. If you pointed out, if you`re 50 years old or younger in this country, if you`re a woman 50 years old or younger in this country, you`ve had a right throughout your life to abortion service, a constitutional right to that decision.
That is what is being taken away here. A constitutional right.
RACHEL MADDOW, MSNBC HOST, "TRMS": And will just say, in terms of the real world impact on women`s lives, Congressman Jamie Raskin raised a really good point about the reasoning in this opinion, which again is a draft opinion.
But the way this is written, it undoes a woman`s right to decide whether or not she`s going to carry a pregnancy to term, but this also absolutely creates their circumstance in which it is possible for them to undermine, and overturn a related ruling called Griswold, which is about the right for people to have the right to contraception, even if certain state legislatures decide that contraception is evil, and we want to make it unavailable to people.
It`s a straight line from this ruling, not only to banning abortion instantly and potentially nationally, but to also preventing Americans from accessing birth control, in a ruling that is argued along the same lines as the established presidents that are starting on this opinion. It`s a fundamentally different world if this happens.
O`DONNELL: And included in this fundamentally different world, is the other part of what we`re experiencing tonight, it is minority government, minority ruled government, and the Supreme Court is the most incredible exemplar of that. You have these judges, appointed to the Supreme Court by two presidents, who did not win the most votes in that presidential election. George W. Bush, appointed the justice who wrote this opinion, he did not win the most votes in his presidential election, but he won the Electoral College. And then you have Donald Trump, appointing three of these deciding justices, he did not come close to winning the most votes, but he got the presidency in this country because of this capacity for minority rule in our government, which is what the United States Senate is about every day of every year.
More people vote for Democrats for the United States Senate, but Republicans end up either in control of it with fewer people voting for them, for those seats, or as we see now in the 50/50 position, this is a minority-controlled government. This is the product of that.
MADDOW: It also raises the question as to, how the court is perceived. The reason that stare decisis is, it`s maybe not when you learn day one of kid law school but it`s maybe day two, is that part of the legitimacy of the court is that the court compounds the idea of the legitimacy of the role of law by respecting past president. And to have thrown out established super precedents, in Casey and in a Roe here, the way that this draft opinion is written, is to say that there is nothing that any court has previously done, there`s nothing that any Supreme Court that has previously arrived at that is -- that deserves respect.
And even with as you say, justices that are pointed by presidents who didn`t win the popular vote, and one case by president who had already been impeached.
It doesn`t matter, because once you`ve got power, you can use it to wreck everything, because stare decisis doesn`t exist, and whatever we`d say has to go, goes and we have the power to do, it and how you`re going to respond? It`s a challenge on the legitimacy and credibility claims of the court, that implies that battle is over, that they`re no longer fighting that, they`re no longer trying to appeal to people, respecting them for their work.
O`DONNELL: And let`s consider what this Republican-controlled court does not respect. They do not respect the in effect Republican controlled court the wrote Roe v. Wade. It was a 7-2 decision 49 years ago, and, five, five of the deciding justices in favor of Roe versus Wade were Republican- appointed Supreme Court justices.
And in the last week or so, there`s been a very intense discussion especially in the world of Twitter about how much the Democratic Party has moved to the left in recent years or how much the Republican Party has moved to the right, there is no better demonstration about the extreme direction towards the right that the Republican Party is moved, when you look at the five Republican appointed justices in 1973, who voted for Roe versus Wade in a total of seven justices.
And then you see these five tonight, possibly six in the end put five as of tonight, voting to repeal it completely and, insulting as much as they possibly can justices who decided it.
MADDOW: Yeah, and also just 30,000-foot view. I mean, it`s 2022 and America is going to outlaw abortion? Mexico just legalized it, you know I`m saying? There`s a way in which the fast retrograde politics of the new right puts us on a very different timeline, then the way we think of ourselves as a mature democracy.
But, you know, this is -- this is a decision, the repercussions of how this draft came to light we`ve only started to understand the basic implications of that, and kind of radicalism that you`re describing.
But what this means for women in the very short term will not be theoretical. This will be a very practical thing. This will change the lives of women of every station, but particularly women without resources, marginalized women, and women who are pouring can`t work around the law in a case like this. This will fundamentally change women`s lives, this, year this generation and, permanently because the decisions are forced by the government on whether or not a woman gives birth, resonates for entire life and for generations in terms of your opportunities and that harm will start today.
O`DONNELL: Yes, and this is a historic night Rachel. We are going to proceed with a coverage that you just let us into, last hour.
Cecile Richards is going to join us. She`s been in this --
MADDOW: Oh, good.
O`DONNELL: -- struggle as long as anyone. And we`re going to be joined by others who have been with this issue for a very long time, legal experts.
This is -- this is something we`ve never seen. It is the removal of a constitutional right. We are sitting here feeling it removed by a minority- controlled government.
MADDOW: Yeah, get to it, Lawrence. Thank you.
O`DONNELL: Thank you, Rachel. Thank you.
We are now joining -- we`re now joining a list of 24 countries. We will be the 25th country, in which abortion is illegal, either in part of the country, because of the states, or eventually in all of the country if Republicans control the Senate, and the House, and they have a Republican president to sign a federal law, that makes it illegal in all of the country.
But certainly, in minimum, 20 states, it will be illegal. We will be in one of 25 countries, countries like Andorra, Aruba, Egypt, El Salvador, Haiti, Honduras, Laos, Mauritania, Nicaragua, Philippines, Senegal, Sierra Leone. That`s the kind of list we are joining.
We are not joining any of the major European countries in this unique position, that this country is now taking thanks to this minority- controlled Supreme Court. This is a night like no other, in the reporting that we have done, and the history of this network which is over 25 years old. And that is the loss of a constitutional right, a constitutional right that has been with us for almost 50 years.
How long can we have a constitutional right and considerate granted permanently? Fifty years, we now know, is not enough.
We are joined now by Cecile Richards, former president of Planned Parenthood. Also, with Michele Bratcher Goodwin, chancellor and professor of law at the University of California, Irvine.
And MSNBC contributor, Dahlia Lithwick is doing overtime with us tonight, senior editor and legal correspondent for "Slate".
Cecile, let me begin with you because you have been in this struggle from virtually your entire professional life, I just want to get your reaction to the news that we appear to be now, at that spot where Roe versus Wade is going to be overturned.
CECILE RICHARDS, CO-CHAIR, AMERICAN BRIDGE 21ST CENTURY: So, Lawrence, I think I feel like a lot of women, writing in now which is that we`ve known this was coming because the Republican Party has been committing to overturning the right to legal abortion for years. Then, as we saw them stacked the Supreme Court, we`ve seen them run on this, we`ve seen them state-by-state past these horrific abuse of laws against women.
But I have to say, even though I intellectually was ready for it, I`m just distraught. We and obviously, the harm, just a frank cruelty, even in the opinion or this leaked opinion. The willingness to trade off women and women`s rights for people`s own personal political views is sickening. And I don`t know, I guess that`s my initial reaction.
O`DONNELL: Let`s go to -- before we proceed, I want to go to this ritual in our Supreme Court confirmation hearings about Roe versus Wade. There have always been these questions about Roe versus Wade, and became a game for nominees, for some extent on both sides, to avoid the question. Very few have dealt with the question, in any kind of direct way.
But let`s look at Samuel Alito`s confirmation hearing answer. Tonight, right now, his answer to questions about Roe v. Wade. He is the author, now, of this opinion that will overturn Roe versus Wade. Let`s listen to what Alito said about it in his confirmation hearing.
(BEGIN VIDEO CLIP)
SEN. ARLEN SPECTER (R-PA): Why don`t we move on to another important quotation out of Casey? Quote, a terrible price would be paid for overruling Casey, for overruling Roe. It would certainly weaken the court`s capacity to exercise the judicial power, and to function as a Supreme Court of a nation dedicated to the rule of law, and to overrule Roe under fire, would subvert the court`s legitimacy.
Do you see the legitimacy of the court been involved in the precedent of Casey?
SAMUEL ALITO, THEN-SUPREME COURT JUSTICE NOMINEE: Well, I think that the court, and all the courts. The Supreme Court, my court, all of the federal courts should be insulated from public opinion. They should do with the law requires in all instances.
That`s why they`re not -- that`s why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected in, and that`s the reason, so that they don`t do anything under fire. Anything the law requires.
SPECTER: But do you think -- do you think there is as fundamental a concern as legitimacy of the court would be involved if Roe were to be overturned?
ALITO: Mr. Chairman, I think that the legitimacy of the court would be undermined in any case, if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution, and the law. It should not be -- it should not sway in a wind of public opinion at anytime.
(END VIDEO CLIP)
O`DONNELL: Julia Lithwick, what did we or should we have learned from that answer in his confirmation hearing?
DAHLIA LITHWICK, MSNBC CONTRIBUTOR: Yeah, that was the tell, Lawrence. He was very, very transparent that, Casey, which is a protracted meditation on stare decisis, and the need of the court to not reverse course willy-nilly, because people have a reliance interest, they order their lives around constitutional protections that are afforded them.
What you just heard Justice Alito say it was pretty much where he put in his draft opinion which is that, not my problem. And it`s really interesting because, if you look at the polling, the polling is not close here. Americans really, really, really did not want to see Roe overturned. And so, I think quite Justice Alito just told us was, don`t care.
O`DONNELL: Professor Goodwin, is there anything -- this opinion says that basically it goes back to the states. All 50 states can make their own decisions about abortion now.
But does the court in this opinion say that the Congress must stay out of it? Or that the Congress could then overrule the state`s decisions?
MICHELE BRATCHER GOODWIN, LAW PROFESSOR, UNIVERSITY OF CALIFORNIA, IRVINE: So, the court does not say that Congress must stay out of it, but I`d also like to correct a few things to, Lawrence, which is that this is a playbook that we`ve seen before. And, if you think of these stripping away of other constitutional protections, let`s think about voting rights, and the Shelby County decision which has upended the right for many to be able to vote in the United States, particularly people of Black and Brown communities across the United States.
That stripping away has led to the undermining not only a voting rights but essentially of abortion rights as well. And it`s important that we stitch together these histories and not see this in isolation. There is a playbook that runs thickly between racial oppression in the United States and that baked into law. So, let`s remember that states rights laws. That`s the Jim Crow playbook.
And what we`re about to see is the Jane Crow playbook, which is going to be the companion to the Jim Crow playbook. We`ve seen that revisited through voter suppression, and now we see quite explicitly is that this court under its current formation is ready to yank the rug out from underneath what you`ve described as a 49 year protection that was not a close decision a 7 to 2 opinion with five of those justices been Republican appointed, and Justice Blackman who wrote the opinion Roe being placed on the court by Richard Nixon.
So what we see is completely antithetical to Republican history. Prescott Bush being the treasurer of Planned Parenthood. We are seeing a time for people who are like calculating been afraid about these times represent, they should be, and count not just the attack on abortion, because next will be attacks on contraception. They`re already happening. We already saw that in the Hobby Lobby case, and were already seen attacks on sex education in schools as well.
O`DONNELL: Joining our conversation now is Neal Katyal. Neal is joining us from London. There is a time zone stress here and I want to get meal and it`s quickly as we can.
Neal, in your reading of this 98-page decision, is there anything in it that says that Congress should stay out of it? The Supreme Court says, we have no role in this because it should be left of the states.
But is the Supreme Court saying that Congress instead of this too because it should be left to the states?
NEAL KATYAL, MSNBC LEGAL ANALYST: No, they`re not quite saying that. So it`s perfectly possible, Lawrence, that a reaction to this, you know, draft opinion, which something I`ve been calling for three years, Cecile, others have, is a law of Congress that codified the rights of Roe versus Wade, above and beyond anything the court can put in or take away, or something like that. That`s going to require majority vote in the House and Senate.
I think that they should break the filibuster for it. I think this is -- you know, if this draft opinion becomes the law, it is a huge step back for women in decades, for reproductive justice and for reproductive freedom.
And here I think, Lawrence, is the most telling facts in this draft opinion, if it does become the law, it upholds the Mississippi law. The Mississippi law had no exception for rape or incest. So it`s just a flat ban.
So if Mississippi is A-okay, any other state can do that, or possibly, Lawrence, if there are Republican takeover of the House and Senate, Congress could pass a law banning abortion in all 50 states.
So this is a dramatic holding, if it becomes the law, of the Supreme Court is breathtaking. I understand all of this wondered about other things about the court, voting rights and so on, but on this day, I think, you know, we should focus on Roe versus Wade just because this is monumental in a way that nothing like this has happened in our lifetime.
O`DONNELL: Neal, just a quick follow-up -- this is a draft opinion. One of the kinds of changes than normally occur between a draft opinion, this one was drafted in February, a opinion that might come out as latest June, what kind of changes happen?
O`DONNELL: So, changes can happen of all sorts, Lawrence, big and small. One of the justices can say, hey, you know, instead, Justice Alito, you can drop that footnote, read a paragraph that says this or delayed a whole section, and possibly you can even have a justice switch opinions, and say I voted initially after oral arguments to totally uphold the Mississippi law, and join Justice Alito. Now, I think that`s not true. And join what would be the dissenters.
The problem here is that Chief Justice Roberts would be that most likely person who is so-called switch sides. But his vote doesn`t matter anymore because after Justice Ginsburg passed away, and was replaced by Justice Barrett, the chief justice became the sixth not the fifth. So you need to get one of the justices like Justice Barrett to flip her view from the conference and that`s unlikely.
And that`s why I think there`s a lot of doom and gloom going on right now after looking at this draft opinion, and yes it`s possible that things can change but it`s really quite unfortunately unlikely.
O`DONNELL: I want to go back to another Supreme Court hearing, and that is Brett Kavanaugh. We all remember that Senator Susan Collins staked her vote to confirm Justice Kavanaugh on her belief that Justice Kavanaugh would uphold Roe versus Wade. And her belief was based on what he had to say in his confirmation hearing. Let`s listen to that.
(BEGIN VIDEO CLIP)
SEN. DIANNE FEINSTEIN (D-CA): Have your views on whether roe was settled precedent, or could be overturned? And has your views changed since you were in the Bush White House?
BRETT KAVANAUGH, THEN-SUPREME COURT JUSTICE NOMINEE: Senator, I said that it settled as a precedent of the Supreme Court entitled to respect under- principles of stare decisis. One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know. And most prominently, most importantly, reaffirmed in Planned Parenthood versus Casey in 1992.
And as you will recall, Senator, I know when that case came up, the Supreme Court didn`t just reaffirm it in passing, the court specifically went through all of the factors of stare decisis, in considering whether to overrule it.
And then the joint opinion of Justice Kennedy, Justice O`Connor, and Justice Souter at great length went through those factors. That was a question presented in the case.
(END VIDEO CLIP)
O`DONNELL: Cecile Richards,, that is what Susan Collins` confidence was based on.
RICHARDS: Look, I mean, I -- we can go over that hearing again, obviously, that was devastating. Having Kavanaugh on the court is.
But the truth is we have to look ahead now, and I think what is so distressing, this is now five people in the United States of America who are now poised to take away the right of every single woman in this country, as Rachel said earlier. This is something we`ve never seen before. This is a right that all of us have lived our entire lives been able to exercise.
And that is the most fundamental right to make a decision about their pregnancy. This isn`t about whether, or not you feel about abortion. It`s about do you want the government to make these decisions for every single person in this country. That`s what they have just done.
No exceptions, as Neal said, this is a devastating opinion. If this should actually come to pass, and it is going to change the lives and opportunities, of every single person in America.
And it didn`t happen, because the American people rose up and said, we need to make abortion illegal, it happened because the Republican Party has been 100 percent committed to ending illegal abortion for years, and they just did that. And if people don`t wake up and understand that this is a political battle, this is not about the Supreme Court. This is about one party taking away the right of over half this country. We better get serious about fighting back.
O`DONNELL: Professor Goodwin, it seems that we learned in Justice Kavanaugh`s confirmation hearing, that when a nominee is talking about stare decisis in a confirmation hearing, we can just ignore that. Because here is someone who just made a very strong statement about stare decisis in his confirmation hearing, and he`s one of the five who is overturning Roe v. Wade.
GOODWIN: That`s right. I think what we`ve been seeing is a matter of political expedience, to simply get through the process. We`ve seen senators not really pressed, I have senator should in this regard. We`ve seen Congress fail to pass Women`s Health Protection Act, but hopefully that`s going to be speech acts here.
But I think you speak to something absolutely accurately, which is that we`ve seen people obfuscate. Judges, who were looking to be appointed on the Supreme Court, obfuscate or flip around these issues, and don`t take them seriously.
I do want to point out something in Justice Alito`s draft opinion here, where he talks about this being egregious. And that it`s a decision that has damaging consequences, we should remember that a person is 14 times more likely to die by carrying a pregnancy to term, that by terminating it.
And given that this has been part of Supreme Court jurisprudence and record just a few weeks ago in Whole Women`s Health, and this is a deadly decision.
It`s not just the sort of breach that we`ve seen in half a century. It means that it`s essentially a death sentence in the United States, where we already lead other countries in maternal mortality. What this means when you drill down and look at Mississippi, Alabama, Louisiana, Texas, is that it`s a death sentence for lots of black and brown women.
O`DONNELL: Dahlia Lithwick, if Justice Alito had -- if it was up to him to sign the opinion, and he took the opinion for himself, he does have one woman on the court on his side when he could`ve assign the opinion to. He could`ve looked at this decision and said, well, this is really a decision about the reproductive rights of women in this country. I`m going to ask Justice Barrett to write it, as the only woman supporting this decision.
LITHWICK: Yeah, Lawrence, a lot of us thought that Justice Barrett had this opinion for exactly that reason. Don`t forget that was expressly said that she was been held over, when Judge Kavanaugh was selected, because they wanted to have a woman replace Ruth Bader Ginsburg, so women could write the opinion overturning Roe. That was part of that grand plan that Cecile was talking about.
And it`s also worth remembering, because we talked about confirmation hearings, and Michele makes this really important point, it`s not just abortion. It was Justice Barrett who wouldn`t say that Griswold versus Connecticut, that is the case that gave the foundational right to use birth control within marriage, she wouldn`t say that that was a precedent of the court.
So I think this really important point that Michele makes, which is that the whole bucket of rights here, it`s not just abortion, we were hearing at the Ketanji Brown Jackson hearing, whispers about getting rid of Griswold, whispers about getting rid of Obergefell, and even not in the hearings but talk about getting rid of Loving, the anti-miscegenation case.
So, anyone who is fooled by the rhetoric in this opinion, but the stops at Roe, I think fails to understand that Roe -- the underpinning of Roe is the underpinning of so many other vitally important liberties, and I think it`s really, really important to see the scope of this, as Neal says, not just for women today it`s a catastrophe, but for all the kind of privacy family autonomy, bodily autonomy writes that we also have taken for granted for way too long.
O`DONNELL: Neal Katyal, a pick up on Dahlia`s point. What might be the next to fall? Could we lose the right to contraception? Could not be left up to the states?
KATYAL: Yeah, so Dahlia is exactly right. I mean, it`s the same family and same basic underlying constitutional protections, and conservatives have derided, calling it a penumbra, not the right to privacy, not being in the Constitution. That`s what the Bork Supreme Court hearings are all around.
I`d also say, Lawrence, gay marriage. You know, the Supreme Court does guaranteed marriage equality just a few years ago. It`s obviously been a target of the conservatives. If they can overrule this case, Roe v. Wade, which is a most super precedent case ever, it`s the case that three Republican justices in 1992, Kennedy, O`Connor and Souter said, that`s the case that social expectations have crystallized around Roe v. Wade.
So even if they were wrong, you can`t overrule it because it would damage the court`s legitimacy. They did it here. So, if we can do it here, unfortunately, they can do it anywhere, and that is the threat tonight.
O`DONNELL: Neal Katyal, Cecile Richards, Michele Bratcher Goodwin, and Dahlia Lithwick, thank you very much for starting us off in this conversation, continue with this conversation, we really appreciate it.
And joining us now is Kelly Robinson. She`s the executive director of Planned Parenthood Action Fund and the vice president of advocacy and organizing at Planned Parenthood Federation of America.
What does it mean out there in the country, as soon as it becomes law, which could be June?
KELLEY ROBINSON, EXECUTIVE DIRECTOR, PLANNED PARENTHOOD ACTION FUND: It`s a terrifying reality, I do want to be clear, for tonight abortion is still illegal. As of today, it remains our constitutional right. But we also have to be clear that it is hanging on by a literal thread.
And with this decision, this leaked draft means is that our deepest fears are coming true. If this comes to fruition through an official Supreme Court decision, that means that half the states, 26 days will be poised to eliminate abortion access in this country. That`s a frightening reality that will dramatically change so many people`s lives.
O`DONNELL: There are some states, I`m not sure the count, who apparently have noticed called trigger laws which is the day that Roe versus Wade is overturned by the Supreme Court, in that state automatically, abortion becomes illegal as of that date.
Do we know how many states have those kinds of trigger laws?
ROBINSON: That`s correct. There are about 13 states that have trigger laws on the books. And we expect another 12 to 13 states after the decision becomes law to actually move swiftly to ban abortion. Again, impacting nearly half the people of reproductive age in this country.
O`DONNELL: And we should stress that abortion services and abortion rights are going to remain safe in very big states like New York, California; also strongly Democratic-controlled states -- Massachusetts, and so many others where actually most of the population of the United States lives within states where the services will remain legal.
But we are dealing with a minimum of well over 40 percent of the population that will suddenly lose these rights.
ROBINSON: Yes, this is a crisis. At the end of the day, no matter what the law is, if abortion is banned it does not stop people from needing health care. It does not stop people from needing abortion access.
All it does is make it fundamentally more and more difficult, particularly for black and brown folks, for people with low incomes. For folks that struggle to take time off work because they don`t have paid sick leave.
This is challenging for folks and will force people to actually try to find access to care outside the traditional health system, moving outside of their city or state or actually being forced to carry their pregnancies to term.
Again this is a terrifying reality for so many people who Roe v. Wade has been the law of the land for their lifetime.
O`DONNELL: Does Planned Parenthood and other such organizations have an action plan ready for the day when Roe v. Wade is overturned?
ROBINSON: We do. Our health centers are really focused on making sure that people still have access to care. We are beefing up our patient navigation. We`re making sure that folks have every access available via telehealth, and doing all that we can to partner with reproductive justice organizations and practical support organizations like the Abortion Funds to help people to get the resources they need to access care.
Now I do want to say, still today, abortion is still legal. This is a terrifying reality that we`ve also got to mobilize to stop. We`ve got to make our voices heard.
O`DONNELL: Kelley Robinson, Planned Parenthood Action Fund, thank you very much for joining us tonight with this report this breaking news night. We really appreciate it.
ROBINSON: Thank you.
And joining us now from Austin Texas is Wendy Davis, former Texas state senator and founder of Deeds Not Words, which is struggling for reproductive rights in Texas which is a difficult struggle. Also with us is Cecile Richards who is from Texas.
And Wendy Davis, I want to get your reaction right away to this opinion and what it`s going to mean in Texas.
WENDY DAVIS, FORMER TEXAS STATE SENATOR: Well, Lawrence, it`s shocking, utterly. And in spite of the fact that we all expected that this would come, it`s deeply upsetting and deeply shocking. And states across the country are about to endure what Texas has been enduring for the last eight months ever since the Senate Bill Eight passed here which essentially overturned Roe in our state beyond six weeks of pregnancy.
No, what it`s meant is that people across our state are being forced to continue pregnancies that they otherwise would choose to terminate.
It is true, as your prior guest from Planned Parenthood said, that organizations on the ground here have been mobilizing to try to do everything they can to help people access care out of state.
The problem with that is, as she mentioned, for people in marginalized communities, for people who already have children, who have jobs that they cannot miss for fear of losing those jobs, and in some instances who are in relationships where they fear telling the person that they are in a relationship with that they are pregnant.
Their alternatives to seeking that care have been completely closed down. And that`s about to be the story across the country because more than 20 states have trigger laws in place so that if Roe v. Wade is overturned, immediately abortion will become illegal in their states.
And the terrifying aspect of this law is exactly what we`re seeing happening here in Texas where just recently in the Rio Grande Valley, a young woman was arrested and criminally indicted for terminating a pregnancy.
DAVIS: That is the next layer of what we are likely facing if Roe is overturned. And I know it may sound completely dramatic to say that, but I can assure you, there are lawmakers here and around this country, that`s their next goal. And that`s where we are headed.
O`DONNELL: Yes, I don`t think there`s any language in dealing with what we`re learning tonight that is overly dramatic.
For example, the law that Samuel Alito is probably upholding in this decision requires -- makes it impossible for a 12-year-old girl who has been raped by her father, makes it impossible for her to have an abortion. That`s what this does.
Samuel Alito and a majority of the Supreme Court and all elected Republicans in Washington want 12 -- 13 year old girls to be forced to carry pregnancies to term if -- no matter who has impregnated them, including their fathers including any incest victim. This is what these people are saying should be the lives of these children. These children should have absolutely no options.
Cecile Richards, you`ve known this about their rhetoric for decades, but now it`s a reality, now they`re saying in writing to children, if you are pregnant as a child you must, you must have that baby.
CECILE RICHARDS, CO-CHAIR, AMERICAN BRIDGE 21ST CENTURY: That`s right, Lawrence. I mean the cruelty and the inhumanity of all of this and these laws is indescribable. But I want to go back to something that Wendy said about the pace that just happened in Texas. Because it`s not only that they jailed for half a million dollar bond, they jailed a 26-year-old young woman in south Texas. But under Texas law, when she found out she was pregnant and didn`t want the baby, she could not talk to her mother, her sister, her friend, her teacher. Anyone, because under the bounty system that the Republicans have designed in Texas any of those people could be turned in to the authorities.
We are leaving young and not only young, vulnerable people, vulnerable women across this country on their own. And there is really, it is unspeakable. And something that I know, you know we`ve talked about on the show before.
Abortion didn`t begin with Roe v. Wade. Abortion existed long before Roe. It has existed for all of eternity. It`s simply before Rose, it was illegal, and it was unsafe, and young healthy women died routinely.
I heard this from Planned Parenthood doctors all the time. Young healthy women died in emergency rooms across this country. I cannot believe that is what the Republican Party wants to take us back.
And just one other point, Lawrence because you know, I know there`s discussion about what else will happen. Even safe states, even states like New York, like California, that have been passing more progressive laws, guarantee you, this Republican Party takes over Congress this November. If that should pass, I can guarantee you House Bill One will be an abortion ban in the state. Make no mistake about it.
They say it`s about states rights, but it`s not. It`s about taking away the right of women to make their own decision about pregnancy. And they will not stop.
O`DONNELL: Wendy Davis, this is the product of our politics. A vote for Republicans at every level -- state legislature, governor, senator, president -- has produced this decision. This is a Republican political success, this is one of the only policies they`ve been running on for decades.
And now they have basically realized that policy through the Supreme Court created by Republican presidents. The first President Bush, second President Bush, and President Trump. Their nominees are all doing this to the American people. Tonight they`re all delivering this decision.
One of the things that I believed when I was working in the United States Senate with Republicans was that the overwhelming majority of Republican senators did not believe their own personal rhetoric about abortion. And they never expected to have to deliver on it in any way. And they expected to profit on fundraising over resistance to Roe v. Wade for the rest of their political lives.
They are now going to have to live with the success of this. What does this mean to Republican politics in Texas?
DAVIS: Well, it`s going to be really fascinating to see what it means, Lawrence. And you`re exactly right, I served in the Texas Senate with Republican senators who absolutely supported abortion rights and yet voted time and time again for laws that intruded upon those rights.
And I think that lawmakers across this country, and at the federal level have always believed that the court will continue to be a backstop. But with Donald Trump`s appointments on the Supreme Court and with Mitch McConnell`s U.S. Senate affirming those appointees to the Supreme Court, it changed the game.
And now, Republicans for all of their rhetoric are going to have to face a voting backlash on this issue.
Here is the real challenge though, Lawrence. Because the Supreme Court has also dramatically curtailed voting rights, and because gerrymandering has become so extreme in state after state after state, even though the majority of people in states like the one that I live in disagree that Roe v. Wade should be overturned, absolutely support a person`s right to make a decision about their own body.
Even though a majority of voters believe that, the deck is so stacked against them because of the way these districts are drawn to favor a majority of Republicans who are out of step with what they care about and who are only concerned about the few voters in the Republican primaries who are putting them into office.
What that means is that statewide elections, like the one we have coming up in Texas in November for Beto O`Rourke, and other down the ballots statewide. Those elections have just taken on a new and incredibly importance because redistricting cannot impact what happens in a statewide vote.
And I hope that that will be our rallying cry in state after state after state that we are going to do everything we can elect statewide leaders who will make sure that in our states this is not going to stand.
And as Cecile said, if Republicans take control of Congress, we can say goodbye to states being able to do anything about it at all. So the stakes in the federal election in November just got even higher.
And if that means that we have to fight like hell and do everything we can to make sure that we hold the house in November, and that we not only hold the Senate, but we increase the number of Democratic senators there, then we`ve got to do everything we can to make that happen.
Our rage will do us no good if we don`t follow it with that kind of concrete action.
O`DONNELL: Cecile Richards, as we go forward, here, one thing that I think has always been a struggle for Democrats is to link voting to the Supreme Court. The Supreme Court as a voting issue for president. The Supreme Court as a voting issue for the Senate, which of course, confirms Supreme Court justices. If this doesn`t clarify that for voters, nothing will.
RICHARDS: I understand what you`re saying, Lawrence and agree. It is a challenge. But the fact of the matter -- the five justices on the Supreme Court were put there by Mitch McConnell -- and not only Mitch McConnell, but by the Republican Party. Three of these justices put on by Donald Trump who pledged to overturn Roe v. Wade. And all the state laws we`re seeing, you know, Wendy talking about the horrific things happening in Texas. These happen because of Republican governors and Republican legislatures.
That to me, is all we need to motivate voters in November because there is one consistent thread. If you look at the states -- Oklahoma, Kentucky, go across the board -- the places where people are making abortion illegal have one thing in common, the Republican Party is in control.
O`DONNELL: And joining us now is -- oh I guess, no one is joining us now. I`m sorry. Getting mixed signals from the control room here about what`s happening.
Wendy Davis, as we go forward in this, and you just brought this focus to the Beto O`Rourke governor`s campaign there in Texas, obviously very important for these issues. What else should voters be thinking about tonight as they watch themselves for the first time in their lives lose a right -- a constitutional right like this?
DAVIS: I think we all need to understand what`s at stake here. It isn`t just a principled argument about whether we should or shouldn`t have the right to abortion. It`s what the very human outfall of this decision is going to be. And it`s not just the human outfall, it`s not just about an individual and her family and what the impact might be. It`s about the economic outfall that will occur.
And I hope that companies across this country are coming to understand that if they don`t step forward, if they don`t add their voices to the outcry of individuals across this country on this issue, they too, are going to feel this impact.
For a long time, we`ve benefited from the ability that women can make decisions about when and whether to have children. And that has empowered us in the workforce and that has fueled the economic engine of this country.
So, what`s at stake cannot be overstated. And I hope that people will understand that sitting home and sitting out these elections is absolutely not an option this cycle.
And for every organization working on the grounds in states across this country, I hope that donors who support them will support them more. Those who are working to register voters, and turn out voters, and to make sure that people understand, their votes can make a difference if we all will simply decide that we are powerful enough to make the change that we want to see.
O5; If you voted for George H.W. Bush, you voted for this because he appointed Clarence Thomas who`s one of the deciding votes here. If you voted for George W. Bush, you voted for this because he appointed Samuel Alito who`s writing this opinion. And of course, if you voted for Donald Trump, you voted for three of the justices who made this the majority opinion here.
And so, any vote for any one of the last three Republican presidents has turned out to be a vote to repeal this constitutional right. And it didn`t necessarily seem that way in 1988 voting for George H.W. Bush, or even in 2000, when it seemed like, as Brett Kavanaugh kept saying in his confirmation hearing, stare decisis would hold Roe v. Wade in our law.
What has changed in the Republican Party over that time so that this now became something they actually could achieve and did achieve this way through the court?
DAVIS: You know, it just became of course, about politics and the maneuvering to gain advantages in Republican primaries. I`ve seen it just in my relatively short political career here in the state of Texas. That more and more of those Chamber of Commerce Republicans who actually supported a woman`s right to choose and by the way, of course, Barbara Bush being very active in Planned Parenthood, and very much a supporter of a woman`s right to choose.
Those Republicans of yesterday have been replaced bit by bit, person by person, because of redistricting through primaries where voters are looking for the greater and greater extreme, and candidates are giving them the extreme as much as they possibly can who have committed to their primary voters that they are going to overturn Roe v. Wade. And who sitting on the U.S. Senate made those very promises to primary voters.
I know there are a lot of people who vote for Republicans who believed this day would never come. I have a dear friend who`s one of them. We had an argument years ago about voting for presidential candidates and whether a Republican president would actually have the power ultimately to appoint a Supreme Court that would overturn Roe v. Wade. And she believed it could never possibly happen
I think a lot of Republican voters have believed that. And the point that you make, Lawrence, is an excellent one, which is our votes lead us to this point. They`ve led us to this Supreme Court. And they`ve led us to the decision that they are about to make.
O`DONNELL: Wendy Davis, thank you very much for giving us both the Texas perspective and the national perspective on this. And Cecile Richards, joining us on that too. Thank you very much.
And joining us now is Minnesota Senator Tina Smith. She previously served as executive vice president of Planned Parenthood in Minnesota, North Dakota and South Dakota.
Senator, thank you very much for joining us tonight, and I just want to open the mic for your reaction to what you`re reading in this draft opinion overturning Roe v. Wade.
SENATOR TINA SMITH (D-MN): When I worked at Planned Parenthood, I had an opportunity to see firsthand the capacity of people to make good decisions for themselves about what was best for themselves and their family.
And what we see in this draft opinion is basically a bunch of Supreme Court justices led by Samuel Alita saying, no we know better, we know best what is best for you and your family.
I`d like to say that it is stunning, that it is shocking, but of course, it can`t be so when we have seen that concerted effort of Republican Party and Republican senators working to strip away this fundamental, most American of freedoms, which is to have control over your own body and your own autonomy. It`s a terrible night tonight.
O`DONNELL: Let`s listen to what Justice Barrett said and her confirmation hearing about Roe v. Wade.
(BEGIN VIDEO CLIP)
SENATOR AMY KLOBUCHAR (D-MN): Ok, will you also separately acknowledged that in Planned Parenthood v. Casey, the Supreme Court`s controlling opinion talked about the reliance interests on Roe v. Wade, which if treated in that case a super precedent. Is Roe a super precedent?
AMY CONEY BARRETT, SUPREME COURT OF THE UNITED STATES: How would you define super precedent.
KLOBUCHAR: I actually, I might have thought someday I`d be sitting in the chair. I`m not. I`m up here, so I`m asking you.
BARRETT: Ok. Well, people use super precedent differently.
BARRETT: The way that it is used in the scholarship, and the way that I was using it in the article that you`re reading from was to define cases that are so well settled that no political actors and no people seriously push for their overruling.
And I`m answering a lot of questions about Roe, which I think indicates that Roe doesn`t fall in that category. And scholars across the spectrum say that doesn`t mean that Roe should be overruled. But descriptively, it does mean that it is not a case that everyone has accepted and doesn`t call for its overruling.
KLOBUCHAR: Ok. So here`s what`s interesting to me. You said that Brown is - - and I know my time is running out -- is a super precedent. That is something the Supreme Court has not even said but you have said that.
So if you say that, why won`t you say that about Roe v. Wade? A case that the courts controlling opinion and that Planned Parenthood v. Casey case has described as a super precedent? That`s what I`m trying to figure out.
BARRETT: Well, senator, I can just give you the same answer that I just did. I`m using a term in that article that is from the scholarly literature. It`s actually one that was developed by scholars who are, you know, certainly not conservative scholars, who take a more progressive approach to the constitution.
And, again, you know, as Richard Fallon (ph) from Harvard said, Roe is not a super precedent because (INAUDIBLE) overruling has never ceased, but that doesn`t mean that Roe should be overruled. It just means that it doesn`t fall on the small handful of cases like Marjory (ph) v. Madison, and Brown v. the board that no one questions anymore.
(END VIDEO CLIP)
O`DONNELL: Senator smith, tonight the curtain has been pulled back on what those justices actually do think about Roe v. Wade.
SMITH: Well, you know, my colleague from Minnesota, Senator Klobuchar, was getting at something really fundamental, which is that Roe v. Wade has been settled law in this country. It has been settled as a constitutional right for people to access abortion for decades.
And yet, we saw, we all saw Justice Coney Barrett, Justice Kavanaugh, skirt around their position on this. And let me just be honest, all of us who watched this understood what was happening. We understood that the president who had nominated them had pledged to overturn Roe v. Wade.
no matter what they said in these hearings, even pressed very ably by Senator Klobuchar and others, I mean the handwriting was on the wall. And now we see the result of that.
And this isn`t just a legal argument, this is an issue that is affecting women in my state and especially women in South Dakota, North Dakota, places where their state legislatures and governors have already overturned Roe v. Wade. Have already overturned their constitutional capacity to control their own bodies and their own futures.
So again, it is -- again, it`s shocking to see, but it is sadly not surprising.
O`DONNELL: Senator, I know that some people believed that if abortion services are going to remain legal in big states like Illinois and California and New York that those women in the Dakotas who you used to work with in Planned Parenthood who need abortion services, they can just go to Illinois. They can just get over to California and New York.
What would you say to people who think that that`s an option for women living in the Dakotas who need abortion services?
SMITH: A couple of weeks ago, I visited an amazing health care clinic in Minnesota that is providing abortion services, including medication abortion to women, not only in Minnesota but in the surrounding states.
And I heard firsthand about what that means for women who are working a job, maybe two jobs, many of these women already have children of their own.
And the deep challenge of trying to figure out how to get to a health care clinic hundreds of miles from where they live, when they have to figure out transportation. They have to figure out childcare, Have to figure, idk, how to pay for this procedure that -- this medical procedure that they are choosing to have.
This is not a walk in the park, this is not just a casual thing. It requires a massive amount of planning. And, if you think about it, as states start to make the time period during which abortion is legal, it makes it even more challenging for these women.
So I think that to say that women are able to just, oh, you know, fly to some other state to get a necessary health care procedure, imagine how you would feel if that`s what you were told if you needed another important medical procedure that isn`t required to meet all of these legal hurdles and even bans that are being put before us by the United States Supreme Court.
O`DONNELL: Senator Tina Smith, thank you very much for joining our breaking news coverage of this. I know this was not in your evening plans. And we greatly appreciate you joining us.
SMITH: Thank you, Lawrence.
O`DONNELL: Thank you.
And joining us now is Congresswoman Katie Porter, a former visiting professor at Harvard Law School. Let me address you as Professor Porter tonight, and get your reading on this landmark Supreme Court case, removing -- removing a constitutional right that this country has had for 49 years.
REP. KATIE PORTER (D-CA): This is a terrible setback for all Americans. It is an assault on our freedom including our economic freedom. What does it mean to live in a country that is trying to compete worldwide, and we`re the only country that doesn`t have universal paid leave, that doesn`t have affordable childcare, and now that doesn`t of reproductive freedom. This is a terrible outcome, not just for women but for all Americans.
O`DONNELL: Yes. We think of this as a woman`s right, which it is. But this impacts all of us, as you say, in every way and for this --
PORTER: Absolutely, Lawrence.
O`DONNELL: Go ahead please. let me just say. You ask any man who`s paying child support. And certainly you could do that. You ask any woman, any single mom like me who is just in the middle of making pesto pasta for a kid who is isolating with COVID and trying to do her job. The last thing I needed tonight was a lecture from Justice Alito about how easy it is today to be a parent. Every child in this country should be wanted and every person should have a fundamental liberty to make a decision.
And for the Supreme Court to lecture single moms like me, women who are being faced with the risk of maternal death from pregnancy, this is a fundamental assault on freedom. And what I feel mostly tonight is anger, and a deep sense of sadness that my daughter Betsy, and my sons Luke and Cole are going to live in a world with less freedom than I did, my mother, or my grandmother.
That is a terrible setback for this country.
O`DONNELL: It is, and we`ll be living in a world where we become one of -- we will be the 25th country that has this kind of outlawing of abortion, at least in part of the country, if not more. And it is not a distinguished list of countries that we are joining in that and that is where Samuel Alito thinks we belong.
PORTER: And he has -- he does not get to make this decision. (INAUDIBLE) I think you can ask everyone to read the first six or seven sentences of this draft opinion. He starts by saying, abortion is a topic on which Americans have very different moral values.
Agreed, and that is all the more reason that this ought to be a decision left to every American to make for themselves. Not a decision that is limiting, that is restrictive -- a freedom that is taken away by the Supreme Court.
O`DONNELL: And when Justice Alito sends this back to the states saying that the Supreme Court has no jurisdiction over abortion, apparently they`re not saying that Congress has no jurisdiction over abortion.
PORTER: Absolutely. Congress has already passed a bill led by my colleague from California Jimmy Chu that would create a statutory right to abortion. Congress can protect the rights of every American here to decide when and how to start a family. We`ve already done that in the House. I hope this spurs the Senate to act.
O`DONNELL: Congresswoman Katie Porter, this too was not part of your evening plans and we greatly appreciate your contribution to our breaking news coverage tonight. We really appreciate it. Thank you.
PORTER: Thank you.
O`DONNELL: Katie Porter gets tonight`s LAST WORD.
"THE 11TH HOUR" with Stephanie Ruhle starts now.