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Transcript: The Rachel Maddow Show, 12/1/21

Guests: Nancy Northup, Dahlia Lithwick, Bennie Thompson


The Supreme Court heard oral arguments on Mississippi law banning most abortions after 15 weeks of pregnancy. Interview with Congressman Bennie Thompson of Mississippi.


BETSEY STEVENSON, PROFESSOR OF PUBLIC POLICY AND ECONOMICS, UNIVERSITY OF MICHIGAN: It`s not the cause of all our inflationary pressure. It`s actually the cause of our strong economic growth. And I`m really grateful that it was there to support families when they needed it.

CHRIS HAYES, MSNBC HOST: Agreed. Betsey Stevenson, thank you very much.

That is "ALL IN" on this Wednesday night.

TEH RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thank you, my friend, much appreciated.

And thanks to you at home for joining us this hour.

One of the strangest, just most unsettling stories I`ve ever covered in my -- in all my years doing this job, and there`s been many of them. It`s certainly one of the strangest stories I ever have come across, let alone covered in detail, about the behavior of the U.S. government. One of the -- just the oddest, strangest, weirdest sticks-with-you kind of thing that I`ve ever had to cover in the news.

It was the Trump administration story about this man who you likely will not recognize by sight. His name is Scott Lloyd. Not a very high profile person in the Trump administration. But this is who President Trump appointed to run the Office of Refugee Resettlement in the Federal Government.

Now, this man had no experience with refugees, no experience with resettlement, you know, so sure, he`s perfect. It`s the Office of Refugee Resettlement. He has no experience with either of those words or concepts, although I`m sure he did know his way around an office.

What he did have experience in is that he was a lifelong, hard-core antiabortion, anti-contraception activist. And it turns out, we learned, that whether or not your main life experience is being an antiabortion activist, if in fact we get the kind of government where you get the job of running the Office of Refugee Resettlement, what that means in practical terms is that you get to run the shelters, the government-run holding facilities in which immigrant teenagers, immigrant kids are locked up if they get picked up while crossing the border.

Well, during the Trump administration, because of who was in charge of those kinds of facilities, because of that particular guy being in charge of the facilities holding teenagers and preteens, because of what that guy`s experience in life was, what he was into personally, what that whole system turned into, under the Trump administration, was as strange a news story as I ever could have conjured.

I mean, I never could have imagined something like this before it actually happened and we had to cover it here on this show. What we learned about that guy, that Trump administration official, and how he ran that part of the federal government in those years, is that he personally kept a spreadsheet that tracked the menstrual periods of individual teenage and preteen girls that the federal government was holding in custody at his agency. He kept track of their periods one by one, by name, by individual girl, in a spreadsheet that was regularly updated by government employees for his use.

And the reason that he as head of that agency, the reason he had his employees collect that information on each girl and send that to him in the form of this regularly updated spreadsheet, is because it emerged his priority at that agency is he sought to personally block any girl who was pregnant in one of those facilities from being able to get an abortion if she wanted one.

Now, this is obviously a very specific population in very specific type of -- a very specific type of federal custody. But this is what this guy had control over. And so he figured he would use what he had, right?

Now, uncomfortably for this project, in America, whether you`re an immigrant or not, whether you`re behind bars or not, at least as of right now, there is theoretically a constitutionally protected right for you to get an abortion if you want to have one. The government is not allowed to stop you from getting an abortion if you want one. It`s your right to decide for yourself.

But during the Trump administration, here was this senior official, political appointee with no experience at all relevant to the agency he was put in charge of, using the fact that he controlled these specific facilities where in fact girls were being held, he used government employees, he used his control of that agency to track their menstruation on a spreadsheet, to track their pregnancies.

He even tracked whether or not they were thought to have been raped. That was a column on his spreadsheet, rape yes or no. And then he used that information to personally try to block any effort that one of those girls might make to get an abortion.

And part of the reason that we ended up covering that story is that in the fall of 2017, there arose the case of Jane Doe.


That was the court-approved anonymizing name for her. But she was a 17- year-old girl. She was picked up by the Trump administration at the border. She was put in a shelter overseen by Mr. Menstrual Period Spreadsheet.

While she was at that U.S.-run federal government facility, she found out she was pregnant. She was 17, she did not want to have the baby, she did not want to go through with the pregnancy. She was firm in that decision. She expressed her firm decision what she wanted to do, she did not want to continue with that pregnancy, she wanted to get an abortion.

And she got the money to pay for the procedure herself. She actually went to a Texas court and got a Texas judge to explicitly grant her permission to make that decision for herself without parental consent since she wasn`t an adult and under Texas law that would mean she would need parental consent unless she got a judge to okay it.

She got a judge to okay it. She arranged transportation to and from the doctor so she could get the procedure done. She didn`t need any help with any of it.

But the Trump administration blocked her. They physically constrained her from getting it. Remember, she was being held at this shelter being overseen by the Trump administration, the guy with the menstrual period spreadsheet for the girls in this facility.

And he apparently decided that even though this girl technically had the right to get this procedure done, they were not going to let her exercise that right. They were not going to let her go. They would physically not allow her to leave that shelter, to go to her appointment to get the abortion.

Now, to be clear, this shelter was not a jail. People held at that shelter were allowed frequently to go to outside medical appointments of all kinds and outside legal appointments and social services appointments and stuff like that all the time. This facility that was holding her, they even especially brought her out of the shelter one day and brought her to a Texas Christian crisis facility where they made her listen to antiabortion counseling against her will.

So they were happy to take her out of the shelter for that, but they would not let her out of the shelter to attend her actual appointment to get an abortion, which again, she had a constitutional right to get. And so, this story came to our attention, became news, when the ACLU sued on her behalf.

And the case went to federal court in Washington, D.C. And so it was the ACLU on one side arguing on behalf of this girl and it was the Trump administration arguing on the other side, arguing for what they had done, for their desire to continue blocking her from getting the abortion.

And this poor Trump administration lawyer, he was the top immigration lawyer in the Trump administration, and he just got destroyed in that federal courtroom, just destroyed by the judge. And we know because we have the transcript of what happened. I`ll give you a little taste.

The judge: I would like the government to explain to me how, since Jane Doe is entitled to an abortion under Supreme Court law, since she has followed through on the regulations to obtain her legally entitled abortion, meaning getting a guardian at litem, getting attorney ad litem, getting judicial authorization, how in the government`s view could she now receive the services to which she is entitled?

Trump administration lawyer: Your Honor, I would respectfully disagree that she`s entitled to an abortion under existing law. She`s entitled to make the choice to have an abortion. She is not entitled to have the government take facilitating steps to have her --

The judge: Let`s stop there at facilitating steps. As I understand it, plaintiff is not asking the judge to transport her. They`re not asking the government to pay for it. They`re simply asking she be allowed to be taken to receive the procedure to which she is legally entitled. How is that facilitating?

Trump administration lawyer: Your Honor --

The judge: She is essentially in the government`s custody.

Trump administration lawyer: Right. In the government`s custody, Your Honor. The government has certain obligations. While Ms. Doe is in government custody, Your Honor, the government has obligations to look after her wellbeing, and to take great care before releasing her from the federal government.

The judge: The ACLU is not asking for the government to pay for her abortion. They`re not even asking for the government to transport her to an abortion. They are simply asking that she be allowed to go get the procedure to which a judge has said she is authorized, okay?

Trump administration lawyer: I guess the point I would emphasize, Your Honor, is that releasing her from custody as defendants have asked would under the facts as I now understand them, it requires some affirmative actions on the part of the defendants, some facilitating, some approval, some handing over. It`s not a willy-nilly process.

The judge: First of all, let`s be clear. I am not asking her to be released indefinitely from the shelter. What I understand the ACLU is asking is she be permitted to go receive a medical procedure. This is not unusual. Residents of the shelter receive medical treatment all the time and the shelter allows them to receive medical treatment.


So there`s no affirmative act that you have to take other than to allow her to go as she would for any medical treatment.

Trump administration lawyer: I don`t agree, Your Honor. To release somebody from federal custody is not a small thing.

The judge: Mr. Stewart, aren`t residents of the shelter released for routine medical procedures?

Trump administration lawyer: I`m sure that`s the case, your honor, but it`s not like the door is sort of left open and they wander out. There are documents, there are approvals, there are steps that need to be taken.

The judge: Right. In every case when a resident of the shelter leaves there are steps that have to be taken. There are documents that have to be signed. There are logs. It`s like any government facility, correct?

Trump administration lawyer: To my knowledge, to my knowledge, Your Honor.

The judge: Then why is this any different? Why is the fact that it`s an abortion any different than if the shelter had to let her go to get her tonsils out?

Trump administration lawyer: Because there`s no requirement that the government take facilitative acts for a procedure --

The judge: There is a constitutional requirement that the government does not place a substantial obstacle in her path. And what you`re saying is we can sit there with the keys to the jail in our pocket and we`re not placing an obstacle in her path. To leave, she has to be process. By refusing to process her to leave, you are placing a substantial obstacle in her path. How else is she supposed to leave?

Trump administration lawyer: Your Honor, I think I`ve said whatever I`m going to say on that point.

The judge: Yes, I think you have. I think you have.

The judge in that case said she was, quote, astounded by what that Trump administration lawyer was trying to argue. She said, quote, I am astounded by that position. She said it was, quote, remarkable what he was trying to get the court to agree to and she did not mean remarkable in a good way.

And so yeah, that went, as you might expect. That lawyer for the Trump administration who got his hat handed to him in the courtroom, he lost that case. The ACLU won. And this 17-year-old girl, Jane Doe, ultimately was able to get that abortion.

Now, there was a little sort of blip in the case. Two federal appeals court judges stepped in. One arguing that she didn`t have any rights because she was an immigrant, which isn`t the way our Constitution works. The other one arguing that basically the Trump administration lawyer should be rescued and that terrible case should be rescued and the Trump administration should be allowed to continue to at least delay this girl on the way to her getting an abortion.

That one appeals court judge sort of briefly intervened and said the Trump administration was right, they should keep blocking the girl from getting an abortion. I say that was kind of a blip in the case. It ended up being a short-lived speed bump in the case because that appeals court judge, as much as he tried to get in there and save the Trump administration lawyer, his ruling was quickly overturned by the full D.C. Circuit Court of Appeals.

And so again, ultimately, the bottom line here is that the ACLU won, that girl was able to get her abortion.

But that whole episode, from the government official with the regularly updated spreadsheet tracking the girls` menstrual periods, and that official forcing girls into Christian antiabortion counseling against their will, and trying to physically hold a girl hostage until it was too late, until it would be illegal for her to get an abortion in Texas, I mean, that whole episode, and the legal debacle and humiliation it came to in the end, it really was one of the weirdest thing I`ve ever covered.

But that story is now where we all live. Because that Trump administration lawyer who got his hat handed to him in court, who defended the Trump administration`s behavior in that case, who insisted to that judge`s face that sure, a woman technically has a right to choose an abortion but a woman doesn`t have a right to actually get one, that lawyer, who was the top immigration lawyer in the Trump administration, through family separation and forced pregnancies and all the rest of it, he is now -- his new job is he is the solicitor general of Mississippi. And in that capacity he was the lawyer who today in the United States Supreme Court argued the case that is expected to end Roe versus Wade, to criminalize abortion in this country.

And I mention there was an appeals court judge who sort gamely jumped in to try to save that lawyer and save that case after it had lost in the lower court while it was on its way to losing again in the full D.C. Court of Appeals, that appeals court judge who tried to save that guy in that horrifying case, that was then-judge, now Supreme Court justice, Brett Kavanaugh. That in fact was the one abortion case Brett Kavanaugh ever ruled on as a judge before Trump nominated him to the United States Supreme Court, a case in which he bent over so far backwards to try to let the Trump administration block a girl from getting an abortion that he ended up getting summarily reversed by his own court.


Well, what they tried to do to one immigrant alone, 17-year-old girl, they are now doing to the whole country. Because if at first you don`t succeed.

After today`s arguments in the Mississippi abortion ban case that has been teed up to overturn Roe v. Wade. After hearing that antiabortion side argued once again by the same lawyer he tried to rescue once before on this issue, today, Justice Brett Kavanaugh is expected to be in the majority of the Supreme Court that really does appear poised to end Roe for all intents and purposes, to end legal protections for women to get abortions in this country.

Here he was today, sort of characterizing that prospect in like as anodyne terms as possible, characterizing that prospect as the court simply becoming neutral on the issue of abortion, no longer playing a role on the issue, by which he means states will now be free to make abortion a crime.

This is Brett Kavanaugh. It`s his voice that you`ll hear first and the lawyer who answers him here is Julie Rikelman who is arguing on abortion rights. She`s arguing on behalf of the Center for Reproductive Rights.


JUSTICE BRETT KAVANAUGH, SUPREME COURT: I think the other side would say that the core problem here is that the court has been forced by the position you`re taking and by the cases to pick sides on the most contentious social debate in American life. And to do so in a situation where they say that the Constitution is neutral on the question of abortion, the text and history, that the Constitution`s neither pro-life nor pro-choice on the question of abortion, and they would say, therefore it should be left to the people, to the states, or to Congress.

And I think they also then continue, because the Constitution is neutral, that this court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life. But because, they say, the Constitution doesn`t give us the authority, we should leave it to the states and we should be scrupulously neutral on the question, and that they are saying here, I think, that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue.

So I think that`s, at a big-picture level, their argument. I want to give you a chance to respond to that.

JULIE RIKELMAN, ATTORNEY: Yes. A few points if I may, Your Honor. First, of course those very same arguments were made in Casey and the court rejected them, saying that this philosophical disagreement can`t be resolved in a way that a woman has no choice in the matter. And second, I don`t think it would be a neutral position. The Constitution provides a guarantee of liberty. The court has interpreted that liberty to include the ability to make decisions related to childbearing, marriage, and family.

Women have an equal right to liberty under the Constitution, Your Honor, and if they`re not able to make this decision, if states can take control of women`s bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the Constitution.


MADDOW: If women are not able to make this decision, if states can take control of women`s bodies and force them to endure months of pregnancy and childbirth, then women will never have equal status under the Constitution.

Julie Rikelman for the Center for Constitutional Rights today making it blunt. You know, this really is about American women being forced by the government to give birth against their will. This is what the supposed small government conservative movement has brought us, right?

This very big government idea, the idea that the government will decide whether or not you get an abortion. The government will decide whether or not you stay pregnant. The government will decide whether or not you give birth. It`s not your choice. The government gets to decide it.

On the other side of the court, Justices Stephen Breyer and Elena Kagan and Sonia Sotomayor all pointedly raised the same issue today in slightly different ways. Obviously, there was long arguments, a lot of different points made.

But I was struck by the fact that Sotomayor, Breyer, and Kagan, all made this same point, questioned their fellow justices about what it will do to the perceived legitimacy of the court if they in fact they overturn Roe, not because it would be unpopular.


I mean, it would be unpopular. A large majority of the country has said don`t overturn Roe, that has been true for decades, it`s still true now. But the more liberal justices effectively made the argument that the court will have a problem on its hands if they overturned Roe, not just because it`s an unpopular decision, even though it would be. It would be a problem for the court if they overturned roe because roe is settled precedent.

Nothing about the country has changed since Roe that would meaningfully effect the terms on which Roe was settled. Nothing about the Constitution has changed since Roe that would affect the way that Roe was decided.

None of those things have changed in any way materially that would warrant throwing out generations of settled precedent around which Americans have built their lives and their expectations for what it means to be a free person living in this country. If the only reason to throw out that settled precedent is because, hey, Brett`s here now, then won`t that make Americans think that the court actually isn`t about looking at the law and it isn`t just about looking at the Constitution, it`s just a little mini Congress with robes on and it`s about Republicans putting together enough votes for their chosen policy preferences or Democrats putting enough votes together for theirs.

Here is how "The Washington Post" editorial board made that case today in an editorial that was published after the arguments concluded. You see the headline there, "Gutting Roe would devastate millions of Americans and the court itself." Quote: Very little has changed since the court handed down roe aside from the fact that Americans now rely on their right to choose whether to terminate a pregnancy. The shift since Roe has been the makeup of the court, reshaped after the addition of several conservative justices due to a mixture of underhanded politics and pure happenstance.

The court`s authority derives not from its ability to enforce its declarations. It lacks any such power. The court`s authority derives from the fact that Americans respect its decisions. Those decisions must reflect something greater than mere whim or raw political power in the Senate. The justices should have no illusions, a partial or total reversal of Roe would devastate not only the Americans who rely on the abortion rights that have been theirs for nearly 50 years but it would also be devastating for the court itself, undermining itself legitimacy.

That`s how "The Washington Post" puts it tonight. Here is how the more liberal justices put it today in court.


JUSTICE ELENA KAGAN, SUPREME COURT: General, Justice Breyer started with stare decisis, an important principle in any case, and here, for the reasons that Casey mentioned, especially so, to prevent people from thinking that this court is a political institution that will go back and forth depending on what part of the public yells loudest and preventing people from thinking that the court will go back and forth depending on changes to the court`s membership.

JUSTICE STEPHEN BREYER, SUPREME COURT: We have to have public support, and that comes primarily from people believing that we do our job. We use reason. We don`t look to just what`s popular. And that`s where you`re seeing the paradox.

The problem with the super case like this, the rare case, the watershed case, where people are really opposed on both sides and they really fight each other, is they`re going to be ready to say, no, you`re just political, you`re just politicians. And that`s what kills us as an American institution.

JUSTICE SONIA SOTOMAYOR, SUPREME COURT: Now the sponsors of this bill, the House bill, in Mississippi, said we`re doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we`re doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don`t see how it is possible. If people actually believe that it`s all political, how will we survive?


MADDOW: Will this institution survive the stench that this creates in the public perception? But the court has nothing to do with the actual law and the constitution, it`s just about who`s got political power in Washington and our rights don`t count for anything beyond that.


The headlines about the Supreme Court case today were essentially unanimous. The broad perception at least, and maybe the broad perception will be wrong, we`ll see, but the broad perception at least, both expert and lay observers, believe that the Republican appointed conservative antiabortion super majority on the Supreme Court is going to do what it was put there for. They appear to be ready to either outright overturn Roe versus Wade or gut it so much that it doesn`t mean much of anything anymore anyway.

And, I mean, here in the real world, particularly those of us outside the sort of legal academy, we can see that, right, as the predictable outcome of what Republicans and conservatives have been working on for years, for decades, to remake the judiciary in such a way that what happened today was the death of a right foretold, right? I mean, they`ll put a Scott Lloyd in an administration job he`s not qualified for, but once he`s in that job, he`ll track girls` periods on a spreadsheet and physically lock them up to prevent them from being able to go get themselves an abortion to which they`re technically legally entitled to.

But they`ll also put a Brett Kavanaugh on the court in order to do the judicial equivalent that have, because they can each be counted on for that same reason, for that same purpose, and that`s why they were given the jobs they were given. To of those us outside the legal world, and those of us sort of I think operating in a real politic environment, we already see it that way. But to hear all three liberal justices today tell the rest of the court, tell the other justices, sort of in the same language, in the same way, hey, if you do this, this will be the end of the court as we know it.

This court, which doesn`t have a police force, this court, which doesn`t have a budget, this court, which doesn`t have any way to enforce its rulings other than the fact that the American people believe that we interpret the law based on the Constitution and our rulings are binding, you will weaken that and the country will no longer believe that about us as a court if you do what you are setting out to do here.

To hear all three liberal leaning justices make that argument today to their colleagues, well, do they know something we don`t about how that argument will land with their colleagues? And about what those justices might be afraid of?

Whether those justices might actually be afraid to do what they were put there to do. I`ll have some expert help on that and much more tonight, coming up.

Stay with us.



MADDOW: Today, when the Supreme Court heard oral arguments on the abortion ban case from Mississippi that`s designed to overturn Roe versus Wade, arguing on behalf of the last abortion clinic in Mississippi, a clinic that sued to block the abortion ban in question, was Attorney Julie Rikelman, the litigation director for the Center for Reproductive Rights.

Joining us now is Nancy Northup, who is president and CEO of the Center for Reproductive Rights.

We talked with Ms. Northup last night on the eve of these arguments, and I`m happy that she`s able to join us again now that it`s happened.

Nancy, nice to see you, thanks for making time to be with us tonight.

NANCY NORTHUP, PRESIDENT AND CEO, CENTER FOR REPRODUCTIVE RIGHTS: Thank you. It`s been an intense day in and outside the courtroom.

MADDOW: Yeah. How do you think it went?

NORTHUP: Well, I am pleased that both Julie Rikelman, arguing for the Jackson Womens Health Organization and the solicitor general of the United States made exceptional arguments, very strong arguments that made two things unassailably clear.

One is that if the court does overturn Roe v. Wade, the impact, in the words of the solicitor general, would be swift and severe. This is about women`s bodily autonomy. It is about control over their health and lives in the future.

And second, as you talked about just a few moments ago, the legitimacy of the court is on the line. Nothing has changed since Roe in any appreciable way. Nothing has changed since they looked at all of this 30 years ago and reaffirmed Roe in Planned Parenthood versus Casey.

So, today was an intense day, because it is an existential one in this argument for women and it`s an existential one for the legitimacy of the court.

MADDOW: In terms of that legitimacy of the court argument, how much weight do you think that that argument carries among the justices? It`s one thing to hear those kinds of arguments made by -- you know, from the gallery, by people like me and other people watching this process. It`s quite something else, it feels different to hear a version of that argument made intensely by three of the justices today here in that court, speaking pretty directly to their colleagues, asking them basically to be afraid if they really are going to go ahead with what it seems like they want to do.

Should that indicate to us that that`s an important internal dynamic among the justices?

NORTHUP: Oh, it is a very, very important consideration for the entire court. I mean, yes, there were questions today from some of the justices that sounded skeptical about the standard in Roe v. Wade, about whether it would weaken or even overturn Roe versus Wade.

But at the end of the day, they have to wrestle with those questions that Sotomayor and Kagan and Justice Breyer brought up, which is, you know, existential. Will the court survive this? I mean, that was the words of Justice Sotomayor. If there is the stench, the public`s idea this is just politics.

They all talked about the court being seen as a political institution. If they overturn a 50-year precedent with no good reason but that they disagree with it, it will go to the fundamentals of what the court does.

So, whatever questions the justices were asking today, whatever they might think about the precedent, they will take very seriously this question about the legitimacy of the court.


MADDOW: In terms of your work and the work of other organizations like yours, Nancy, I know there`s nothing exactly like the center for constitutional rights, but you have colleague organizations that work in the same space. If we end up in a new world of abortion rights litigation at the end of this in which there isn`t the existing standards for what counted as a constitutional abortion ban are lifted, there`s no clarity on what is still allowed, Roe isn`t completely overturned but there`s no clear new standard to replace it, how do you think that work will proceed? How do you think that landscape will look for organizations like yours and for people who have devoted so much of their lives and their work trying to stand up for reproductive rights?

I feel like, again, as a lay observer, I feel like it`s sort of the Wild West ahead in terms of what the law is going to be here.

NORTHUP: Well, it would be, again, devastating, as was made clear in the courtroom today, devastating for women and people who need to access abortion care but also devastating for the law.

Look, the Center for Reproductive Rights will continue to litigate cases in federal court and state court, will continue to work with legislatures to get strong rights protection, continue to work for initiatives were people have the right to vote on this themselves. But most importantly, work for Congress to take action. Congress can solve the problem of this crisis in abortion access.

The Womens Health Protection Act can address this law, the Texas law, the dozens of other laws that have been passed that are being litigated in the courts right now. The House of Representatives has passed the Women`s Health Protection Act. It`s before the senate. The Biden administration supports it. People are going to wake up and realize the pressure has to be put on the Congress.

MADDOW: Nancy Northup, president and CEO for the Center for Reproductive Rights. Nancy, thank you so much for making time to be here tonight on this sort of -- it`s an understatement to call it momentous. Thanks for being here.

I want to turn now to our friend Dahlia Lithwick, who is senior editor at Her piece on today`s argument is titled "SCOTUS will gaslight us until the end. Oral arguments today made clear this court will overturn Roe and that they will insist on their own reasonableness the whole time."

Dahlia, thank you so much for being here, I know this has been an intense day.


MADDOW: So tell me about that -- tell me about that clarity. Oral arguments today made clear this court will overturn Roe. You are not in the minority in asserting that, but what is the basis for that clarity that you feel about this?

LITHWICK: I think going into argument today, there was a narrative that went, this isn`t really a 6-3 court, it`s a 3-3 court that Amy Coney Barrett and Brett Kavanaugh and the chief justice are incrementalists, they care about what people think, they worry about those legitimate questions you and Nancy were just talking about, but they`re going to tap the breaks, not do anything crazy.

There was no reason to believe other than the Chief Justice, who was trying to figure out a middle way not to overturn Roe, maybe we could move the viability line and be okay with a 15-week instead of 24-week ban. There was no reason to believe, Rachel, that he had a single other person on the court with him in that project.

I think anyone who could count, counted all of the conservative justices except for Roberts who`s gunning for Roe.

MADDOW: You said today in your piece that`s just posted, Dahlia, perhaps it would be refreshing if the conservatives on the U.S. Supreme Court no longer felt the need to lie to us. The lying, after all, is becoming nearly untenable especially for an institution that relies on public confidence. After confirmation hearings in which they promised that stare decisis was a dearly felt value, there`s something sort of soothing knowing the lying to our faces will soon be over. They were all six of them installed on the Supreme Court to put an end to Roe v. Wade after all and that is exactly what they intend to do.

I wonder if you feel like this moment does mean that the sort of lying and the artifice around this issue is over. Under President Trump, when he talked about Supreme Court nominations, he essentially dropped the guise and said, yeah, whoever I put on there is going to overturn Roe and that`s why I`ll put them on there. So, yeah, Roe is going to overturn.

I mean, are we -- are we in a new place where it`s essentially open combat on this issue and we`re no longer couching it?

LITHWICK: Yes and no. I mean, I think -- look, let`s be grateful that all of the fancy law professors and Susan Collinses and people who told us what these folks really meant when they said Roe was precedent, they meant that.


Okay, let`s put that aside, that artifice is gone. The artifice I worry about, and you played that Brett Kavanaugh clip, is the artifice of saying, let`s be neutral. We`re going to pretend to be neutral. We`re not going to ban abortion, said Kavanaugh, so that`s on the table, we`re just going to says there`s a right, and that middle place, that neutral place is to just let states decide.

We saw that same artifice, Amy Coney Barrett kept insisting that because there are safe haven laws that allow you to more readily give your child up for adoption, it`s not a problem for women to be forced to carry to term because they can just give their babies up.

So I think for me, the artifice of we`re being neutral, we`re being reasoned, this is just a tiny little tweak around the margins, nothing earth-shaking happening here, not to worry about other precedents when we`re gunning for Roe, it`s just Roe, that`s the artifice that really rankled for me, the pretence that this is a big nothingburger and everybody is worked up.

MADDOW: Dahlia, do you think we`re going to get an answer on the Texas ban at the same time that we get this ruling? Do you think we`ll get the Texas ruling in short order even though it may be months before we get this ruling on the Mississippi case?

LITHWICK: I think so. And I think, again, I put it, Rachel, in the bucket of, it`s going to look like a wash, right, we said that Texas can`t do what Texas did, that`s crazy, that`s vigilantism, but then we let the Mississippi law stand so it`s a wash, everybody gets something.

And I think it will be another way to make it look as though the court is navigating a middle path when in fact really all they were worried about in Texas was that that vigilante kind of enforcement mechanism could be used to take away guns in California.

So I think we have to be just really careful about apples and apples and apples and oranges. I think we`re going to get Texas in the next a couple of weeks and it`s going to look like a big win for abortion rights and then I think we`re going to get a wallop in June on that.

MADDOW: Dahlia Lithwick, senior editor at -- Dahlia, as always, thank you for your clarity.

LITHWICK: Thanks, Rachel.

MADDOW: All right. We`ve got much more ahead here tonight. Stay with us.



REP. BENNIE THOMPSON (D-MS): I want to note that around 8:00 last evening, Mr. Clark`s attorney sent a letter to the committee, another in a long series of long letters, stating that Mr. Clark now intends to assert his Fifth Amendment privilege. This is in my view a last ditch attempt to delay the select committee`s proceedings. However, a Fifth Amendment privilege assertion is a weighty one.

I am informed Mr. Clark`s attorney that I am willing to convene another deposition at which Mr. Clark can assert that privilege but that we will not allow anyone to run out the clock and we will insist that he must appear on this Saturday.


MADDOW: He must appear this Saturday, where we are advised he will plead the Fifth. That was Mississippi Congressman Bennie Thompson tonight on a surprising new development in the January 6th investigation that Congressman Thompson chairs.

The investigation, members of that committee did vote tonight unanimously to refer former Trump Justice Department official Jeff Clark for prosecution by the Justice Department over refusal to comply with subpoenas from the committee.

But Mr. Clark is also going to apparently be pleading the Fifth and invoking his Fifth Amendment rights to avoid incriminating himself. That was something we did not see coming and I`m not sure how that factors into his potential contempt committee and what happens next.

Luckily Congressman Bennie Thompson, chairman of the January 6th investigation, is now able to join us live.

Mr. Chairman, sir, thank you so much for joining us tonight. I know it`s a business evening.

THOMPSON: Thank you for having me, Rachel.

MADDOW: Can you explain in layman`s terms, what this means? What we had been prepared for was a vote on your committee on whether or not to refer Mr. Clark to be prosecuted to the Justice Department for ignoring subpoenas, for defying the committee, for being in contempt of Congress. This Fifth Amendment announcement you made tonight at the committee`s proceedings, I`m not sure what the implications are for what`s going to happen next.

THOMPSON: Well, the implications is, we will give Mr. Clark his right to assert his Fifth Amendment before the committee should he chooses. We have been negotiating since October with Mr. Clark. We are doing everything we can to show that we are not partisan, that this committee is just trying to get to the facts.

As you said, we voted unanimously tonight to hold him in contempt. I will go before the rules committee in the morning to proffer a rule to go to the floor. We`ll hold that in abeyance until Saturday.

So, this will be Mr. Clark`s last chance to come. He can come and assert himself. But, you know, if you say you haven`t done anything wrong but on the other hand you want to assert the Fifth Amendment in terms of self- prosecution, it`s saying that you have something to hide.

So we`re going to give him an opportunity to do it. A lot of other people have come before the committee, they have done what`s right, they have talked to us, and we thank them for it.


Our charge is to get to the facts. Mr. Clark, through his attorney, has been deliberately avoiding us. This is his last chance to come if he wants to assert it, Rachel, he can do it. But it will be under oath. And he is still subject to certain penalties should he decide to not tell us anything.

So, we`ll go forward. It just delays it. If we`re not satisfied with what happens on this Saturday, we have all next week to bring this issue before the Congress for the contempt citation.

MADDOW: As you say, there are implications of invoking the Fifth Amendment. It is a right that protects us against self-incrimination. In the context of an open investigation like this, I think those questions that you raise about what it means that he is invoking his Fifth Amendment rights, what it means when you`re pleading the Fifth on the case like this is a pretty pointed question.

I mean, bluntly, does this -- does this decision imply that Jeff Clark and his attorneys believe there was some kind of criminal activity committed by the president or people around him, Mr. Clark, that -- on the matters that you want to question him about?

THOMPSON: Well, it could very well mean that. But, obviously, he is aware that something went on that is illegal. And rather than be responsible and answer, he is pleading the Fifth.

Now, the question is, did you participate in these illegal activities in the White House? As you know he recommended a process by which the elections could be manipulated in certain states. Well, that`s clearly illegal. What we need to hear from him whether or not he said it, we have reason to believe he did.

But if he is of the opinion that if I come before the committee and acknowledge that, then I have contributed to the January 6th insurrection in part simply because I made a recommendation that ultimately led states to believe they could overturn the election.

Look at what went on in Arizona. Look what tried to go on in Michigan. Look at Georgia. We had the secretary of state in Georgia basically say the president called me and tried to get me to somehow find enough votes to change the outcome of the election.

Well, this is part of what we believe Mr. Clark knew about and part of his recommendation. That`s why he needs to come before the committee. But if he is saying, okay. I`ll come but I`ll plead the Fifth, then in some instances that says you are part and parcel, guilty to what occurred.

MADDOW: Congressman Bennie Thompson, chairman of the January 6th investigation, this is a fascinating -- this is a fascinating pivot point in this investigation, sir. We`ll be watching closely. Thanks for helping us understand tonight.

THOMPSON: Thank you, Rachel.

MADDOW: All right. We`ve got much more to come tonight. Stay with us.



MADDOW: Stacey Abrams one of the highest profile Democrats in the United States one of the most talented politicians of her generation, the woman credited more than anybody else with turning the great state of Georgia blue, Stacey Abrams announced today that she is running for the governor of the great state of Georgia. With this announcement tonight, she is setting up a potential rematch against Republican Governor Brian Kemp in what will undoubtedly one of the most closely watched races in the whole country next year.

I am very pleased to tell you that after making her big announcement tonight, Stacey Abrams is going to be right here tomorrow night exclusively, her first TV interview after announcing she is running for Georgia governor. I know, right?

We`ll be right back.


MADDOW: All right. That is going to do it for us tonight. It`s been great to have you here.

I`ll see you again tomorrow night.


Good evening, Lawrence.