--:-- [Upbeat music fades out]
--:-- Host John Bickley: This episode is brought to you by LifeLock. Between two-factor authentication, strong passwords, and a VPN, you try to be in control of how your info is protected. But many other places also have it, and they might not be as careful. That's why LifeLock monitors hundreds of millions of data points a second for threats. If your identity is stolen, they'll fix it. Guaranteed or your money back. Save up to 40% your first year. Visit LifeLock.com slash podcast for 40% off. Terms apply.
--:-- Host John Bickley: On Monday, Politico published a draft of the Supreme Court's upcoming opinion on an abortion rights case that will overturn Roe v. Wade. According to that leaked draft, the U.S. is looking at a new legal landscape for abortion. If the rulings of the justices hold, for the first time in 50 years, Roe v. Wade, the case that enshrined abortion as a right, will not be the law of the land.
--:-- Host John Bickley: In this episode of Morning Wire, culture reporter Megan Basham reports on the leaked 98-page draft opinion, what it means for abortion in America, and the legal arguments on both sides of the decision. It's May 8th. Happy Mother's Day. And this is your Sunday edition of Morning Wire. This show is sponsored by Alto IRA. Cryptocurrency may represent the future of money, but what about taxes? With an Alto Crypto IRA, you can trade crypto like Bitcoin and avoid or defer the taxes. With secure trading 24-7 through Alto's integration with Coinbase and over 150 coins available, Alto IRA has you covered. Take your investments to the next level and diversify like the pros without tax headaches. Open an Alto crypto IRA with as little as $10. Just go to altoira.com slash wire. That's A-L-T-O-I-R-A dot com slash wire. Start investing in cryptocurrency today. Go to altoira.com slash wire.
--:-- Host John Bickley: This potential landmark decision sparked immediate and heated protests around the nation as clashes between pro-life and pro-abortion demonstrators threatened to turn violent. Meanwhile, Democrats and Republicans are rushing to use the issue to their advantage in the November election.
--:-- Host John Bickley: I believe that a woman's reproductive freedom is sacred, and I believe that it's settled case law, and we can never go backwards on that regard. If I'm in the United States Senate, I would immediately support the first campaign to support the elimination of the filibuster. In this special episode of Morning Wire, Megan Basham joins us to discuss the political response to the leak and unpack the merits of the court's decision.
--:-- [Megan Basham joins the conversation]
--:-- Megan Basham: Thanks for being here.
--:-- Host John Bickley: Yeah, my pleasure. Now, to set the table for this discussion, it seems important to address the fact that this became known through a leak that's completely unprecedented.
--:-- Megan Basham: It is. And just to put that in perspective, the nonpartisan and very influential legal publication SCOTUS blog called this leak the gravest, most unforgivable sin and said that it will destroy trust among the justices and their staff.
--:-- Host John Bickley: Yet, even on that point, the left and right are divided, with some liberals arguing that the leak is actually a positive development.
--:-- Megan Basham: So Politico, for instance, has an opinion essay out right now from their media expert that's titled, "It's About Time Someone Punctured the Supreme Court's Veil of Secrecy." And it argues that the leaker, and I'm quoting here, did the nation a service by ignoring the magic fairy dust that envelops the court to take an overdue look at the court's decision-making process.
--:-- Host John Bickley: Now, along those same lines, a New York Magazine article says, and this is the actual title, "the leak is good, actually." So that essay contends that the leaker has done a public service by damaging the court's mystical aura of legitimacy at precisely the moment when it deserves to be damaged.
--:-- Megan Basham: So you have to say it's pretty fascinating how similar the wording of those two pro-leak essays are by two different major publications.
--:-- Host John Bickley: And then on Wednesday, White House Press Secretary Jen Psaki refused to condemn the leak when a reporter explicitly asked if the White House would do so.
--:-- Megan Basham: I don't think we have a particular view on that other than to say that we certainly the unprecedented nature of it.
--:-- Host John Bickley: And then you have Democrats like Obama Solicitor General Neil Katyal comparing this leak to the Pentagon Papers Now that was a leaked Department of Defense report that ultimately swayed the public's opinion against the Vietnam War. And the leak in that case is now generally viewed as a heroic act.
--:-- Megan Basham: Now, conservatives on the other side are pretty much uniformly viewing this as incredibly damaging to the integrity of the court.
--:-- Host John Bickley: So here's what constitutional law professor and Cato Institute scholar Josh Blackman told us about that.
--:-- Josh Blackman: The court depends on trust. That is, when a draft opinion circulated, the justices have to be able to trust their staff that it will not be revealed to the public. And I think that trust is now breached.
--:-- Megan Basham: Now, every time you have a dispute on the court, people think that could be leaked to the public. I don't know how you come back from this breach of trust. It's very, very damaging for both this term and the future.
--:-- Josh Blackman: And that's something that Sarah Perry, senior legal fellow at the Heritage Foundation, echoed. It has significantly tainted the court's integrity and would have given the court, in fact, what Sonia Sotomayor argued during oral arguments, the stench of a political decision.
--:-- Megan Basham: Launching this kind of a leak at this proximity toward the end of the term, but within still enough time for those who are pro-abortion advocates to make determinations on how to message and how to legislate at the federal and state level, particularly with one of the justices retiring at the end of this term. It is truly unprecedented.
--:-- Host John Bickley: So it seems like how you ultimately view the leak is closely tied to how you view Roe.
--:-- Megan Basham: Yeah, to a large degree, that seems to be true.
--:-- Host John Bickley: Now, that said, I wouldn't necessarily say it's the case that every legal scholar who leans left takes that view.
--:-- Megan Basham: Loyola constitutional law professor Jessica Levinson is pro-choice, but she told me this about the leak.
--:-- Jessica Levinson: It's really a breaking down of the Supreme Court norms, and I think it's a shame. I think that the Supreme Court should be a place that is different from other political bodies. I think federal judges are given lifetime appointments for a reason. We want them to be out of politics. We don't want them to be susceptible to political pressure.
--:-- Megan Basham: And this leak, I think, really betrays the trust of what the justices have understood and what we've all understood. But I think it's a horrible betrayal of how the Supreme Court has already and always functioned to have this leak.
--:-- Host John Bickley: Now, as to what the justices are thinking right now, we can draw from Chief Justice John Roberts' statement that called it a singular and egregious breach of trust that is an affront to the court.
--:-- Megan Basham: And we also spoke to Federalist Society legal fellow Erin Hawley. Now, she clerked for Roberts, so she has a deep insider perspective on just how SCOTUS is viewing this.
--:-- Erin Hawley: So I think you can tell from the chief justice's statement that this leak of a Supreme Court draft opinion before the court was ready to release it is something that horrifies him. He called it an egregious breach of trust and a betrayal of the confidences of the court. And those phrases are not phrases that he would use lightly.
--:-- Megan Basham: So I have no doubt that he is very disappointed that this leak occurred and will do what he can to get to the bottom of it.
--:-- Host John Bickley: What's been particularly interesting is the degree to which Roberts doesn't seem to be getting that much public support from the executive branch or from a significant portion of the legislative branch.
--:-- Megan Basham: As that Psaki soundbite illustrated, the White House isn't willing to condemn the leak, and President Biden has not really addressed the matter of an investigation.
--:-- Host John Bickley: Neither have high-profile Democrats like Chuck Schumer, Nancy Pelosi, or Elizabeth Warren.
--:-- Megan Basham: What you're really hearing from Democrats is this immediate pivot to what they can do to remedy this legislatively. They're reviving discussions of abolishing the filibuster so that they could codify Roe into law with a bare 51-vote majority in the Senate.
--:-- Host John Bickley: So this was Senator Warren speaking to a crowd of supporters about just that on the steps of the court a couple of days ago.
--:-- Megan Basham: I say the time has come. We end the filibuster now!
--:-- Host John Bickley: Of course they still have West Virginia Joe Manchin and Arizona Kyrsten Sinema standing in their way on that.
--:-- Megan Basham: Both Democrat senators said this week that they will not vote to end the filibuster in order to codify Roe.
--:-- Host John Bickley: Now, assuming that this draft largely represents the ruling that SCOTUS will ultimately hand down, how are legal experts reacting to the merits of the actual opinion?
--:-- Megan Basham: Well, you know, as with just about everything on this topic, that depends to an enormous degree on how you view abortion and whether you see it as a matter of a woman's right to privacy or a child's right to life.
--:-- Megan Basham: So this was what Holly had to tell us about the reasoning of Justice Samuel Alito, who wrote that leaked draft.
--:-- Holly: So I think the draft is an excellent example of constitutional analysis, and it lays out a really compelling argument for overruling Roe. And as that draft explains, there's nothing in our nation's history, traditions, or the constitutional text that support a right to abortion.
--:-- Megan Basham: And because of that, Justice Alito says that Roe and Casey have profoundly damaged our democratic institutions because the court took an issue away from the people.
--:-- Holly: And this decision overturning Roe, if the court sticks with it, will return that issue to the states and allow people to be invested in that decision.
--:-- Megan Basham: Levinson, of course, felt differently about Alito's argument that the issue should return to the people.
--:-- Jessica Levinson: Think about equal protection. We don't want to leave that to the voters as to whether or not we'll respect equal protection. Think about other due process rights. We don't want to leave it to the voters as to whether or not criminal defendants can obtain due process of the law.
--:-- Megan Basham: And I think the same thing goes for the right of reproductive choice. We don't want to leave this to a legislative matter as to whether or not women have the right to choose.
--:-- Host John Bickley: So even as we're here today sifting through all of the many moving parts on this, it's striking that even legal experts who are normally very cautious with their predictions seem fairly confident that the judges will stand firm in this opinion.
--:-- Megan Basham: Yeah, they do seem like that. And I think the reason for that, as experts on both sides of the aisle told Morning Wire, is because they think it's, one, very unlikely that the justices will allow any public pressure that might stem from this leak to sway their opinions.
--:-- Megan Basham: And two, they believe that based on what's in the draft, it likely does represent the final outcome.
--:-- Jessica Levinson: It's not a good idea for us to assume that any draft opinion is settled. I think this particular draft opinion probably is and is even more likely to be settled as a result of the leak.
--:-- Megan Basham: And I think that was part of the purpose. Again, I'm just speculating here. I think part of the purpose of the leak was to make sure that there weren't any members of the five-member majority who decided to maybe either cross the aisle or join Chief Justice John Roberts for a narrower opinion.
--:-- Megan Basham: So if you look at this draft, it is obviously extremely thorough. It looks close to complete. Does it mean that this is exactly what we're going to see when they come out with the decision? Of course not. And we need to be careful about it.
--:-- Megan Basham: But I would be very surprised if things change substantially between this February draft and what we're going to see at the end of June.
--:-- Host John Bickley: And that was the one thing and perhaps the only thing that Levinson, Hawley, and really all of these legal experts that we spoke with mostly agreed on.
--:-- Megan Basham: That said, I will hasten to add that it doesn't necessarily mean that we know the outcome with certainty, but it is the general consensus across the political spectrum.
--:-- Megan Basham: Now, beyond Roe, the big question this draft brings up is how it's going to impact rulings on other landmark SCOTUS cases.
--:-- Host John Bickley: What do we know about that?
--:-- Megan Basham: Yeah, and you know, what I can tell you for sure is that once again, we're hearing a lot of different opinions.
--:-- Megan Basham: Because on the one hand, Alito makes it very clear that this ruling is only intended to apply to Roe and another case that enshrined abortion, Casey, not any other rulings.
--:-- Host John Bickley: However, critics contend that it strikes at the heart of a right to privacy, the basis that other decisions like Obergefell v. Hodges, which established gay marriage, rely on.
--:-- Megan Basham: Blackman believes Alito's caution that the ruling is intended to have a limited scope is going to hold up because those other issues aren't as politically divisive.
--:-- Josh Blackman: Well look Justice Alito draft opinion said we not touching anything else we just talking about abortion right It like Bruno we don't talk about gay marriage right I mean you could say well we don't believe you But I think there is a simpler answer here right There's no march on Washington every year to overrule gay marriage, right? There's no march on Washington to overrule contraception protections.
--:-- Megan Basham: There was a march on Washington for abortion. And the leader of opinion recognized that he says that abortion is a unique right because it literally takes the life of another.
--:-- Josh Blackman: And gay marriage doesn't do that. Birth control doesn't do that. It stands alone among these sort of unenumerated rights as rights to inflict harm on others.
--:-- Megan Basham: Levinson, however, didn't agree with that.
--:-- Jessica Levinson: I understand that the draft says this is just about abortion. But if we look at the reasoning behind overturning Roe, and if we're really honest about what the court's worried about, which is, I think, this idea of unenumerated rights, you know, things that are not specifically written into the Constitution.
--:-- Megan Basham: Then it feels to me that it's inescapable that it calls into question the rest of this line of cases of the right to privacy.
--:-- Host John Bickley: So think about how this began. We're looking at the 14th Amendment. We're looking at that word liberty and we're deciding what's protected under liberty. Again, really broad words in the Constitution because I think the founders and framers knew this is a document that's going to have to live for a long time.
--:-- Megan Basham: So we look at the word liberty, what's protected under it? We decide that there's something called the right to privacy, which protects, for instance, the ability of married couples to obtain contraception.
--:-- Megan Basham: Then the ability of unmarried couples to obtain contraception. It includes things like the right to marry the partner of your choosing. Maybe they're from a different racial background than yours. Maybe they're from the same gender as you are.
--:-- Megan Basham: And so when we think about how we've built this line of cases and we think about why we would overturn Roe, it seems to me that it calls the whole line into question.
--:-- Host John Bickley: So I guess really the final question is how the American people are likely to react.
--:-- Megan Basham: This has been such a divisive issue for so long, and there's no doubt that candidates are going to heavily focus on this in the run-up to the midterm elections in November.
--:-- Megan Basham: Now, will this decision, if it holds, anger a majority of American people?
--:-- Megan Basham: Well, as you might expect, Democrats are insisting that there will be a groundswell of outrage against what they're characterizing as a women's rights issue.
--:-- Megan Basham: They point to polling showing that a slim majority of Americans have said that they do not want the court to overturn Roe.
--:-- Megan Basham: Holly, however, did a good job voicing what most Republicans are saying about that claim.
--:-- Holly: When you drill down on those numbers, a majority of Americans support restrictions on abortions at 15 weeks. Which is where the Mississippi law that is issued in Dobbs comes into play.
--:-- Megan Basham: So I think when the pro-life movement takes up its call to explain to the American public that babies as young as 15 weeks can move and stretch, they can smile. And when you explain this, especially with the benefits of 40 ultrasound, which were not available to mothers and fathers or to the court in 1973, then I think we get this picture of what abortion really is.
--:-- Megan Basham: So I guess the shorter answer is to say, I think public opinion is, you have to drill down on the numbers. A lot of people say they're in favor of Roe, but they're not in favor of the regime that Roe allows where you have on-demand abortion up until the moment of birth.
--:-- Megan Basham: What no one argues though, is that we are definitely living through an historical moment.
--:-- Host John Bickley: Absolutely.
--:-- Megan Basham: Megan, thanks so much for reporting.
--:-- Host John Bickley: Thanks for having me.
--:-- [Music starts playing]
--:-- Host John Bickley: That was Daily Wire's Megan Basham, and this has been your Sunday episode of Morning Wire. If you liked this podcast, subscribe to our Morning Wire newsletter, available exclusively to Daily Wire members. Get the Morning Wire newsletter delivered straight to your inbox when you join at dailywire.com slash subscribe. Use code MORNINGWIRE to try a Reader's Pass membership and get your first month for only 99 cents.
