Will Roe v. Wade Survive?

to abortion altogether. During oral arguments this week, all six conservative justices indicated they would uphold Mississippi's ban on abortion after fifteen weeks of pregnancy, although the justices appeared to be divided on just how far they would go here at Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh. If it really is an issue about choice,

why is fifteen weeks not enough time? The fetus has an interest in having a life, and that doesn't change, is it from the point before viability to the point after viability? Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this. And there'll be different answers

in Mississippi and New York. Justice Sonia So to Mayor and the two other liberal justices said that a decision gutting the courts precedent on abortion would undermine the courts legitimacy. Will this institution survive the stench that this creates in the public perception that the Constitution and it's reading are just political acts. I don't see how it is possible. Joining me is Mary Ziegler, a professor at Florida State University College of Law who specialized is in the legal

history of reproductive rights. Mary, what was your take on the arguments? The overall impression I got, obviously is that Mississippi is going to win, and I think it's much more likely that the Court has been over to and Row outright this summer. You know, with the usual caveats that things can change between argument and decision. What was the main question? Was it the viability standard, the presidential value of row? Definitely more of the latter than the former,

for sure. I mean there was a lot of time spent on the presidential value of row and whether the Constitution is silent or a sprick have enough put it scrupulously neutral about abortion? Right? There was much less time spent on viability. Although Chief Justice John Roberts certainly focused on viability, and Amy Coby Barrett at some point showed some interest in that line of questioning as well, but the majority of the questions focused on whether Row was

the kind of precedent that deserve respect. The Chief Justice is an incrementalist. He likes to change law a little by little. Was he looking for a middle ground that none of the conservatives took him up on. I think that's a stereo reading of it, although I think the only person who consider taking him up on it is Justice Sparret. I think she's probably going to be, at least based on the argument, the person whose vote is

the most upper grabs in the case. But I mean, obviously getting rid of viability would be a major change to abortion doctrine. So while I think it's right to frame Roberts as an incrementalist in frame data searched forminal ground solution, I think it's also worth qualifying that, you know, this is not usually what passes for a compromise, but I think that's what he was trying to do, and I think that with maybe the exception of Justice Sparret,

there were no takers. Was the only question for conservatives whether to overrule Row entirely or whether to stop at fifteen weeks in the Mississippi law. Was there any inkling of support for maintaining the current rule and precedent. No, I mean not really. I don't think that any of the conservatives seem interested in that. How did we come this far this fast? It's just a few years ago. It seemed like Rowe was on pretty solid ground. Yes,

obviously quite sudden. I mean, I think Justice Soto Mayor, although people who are anti abortion or prollected like the tone of her question, had a point in saying, you know, legislators have been saying, essentially, we can do whatever we want when it comes to worship because we have the votes. And it does seem to have changed quite rapidly that we've gone from June medical not even two years ago, to an oral argument where the court seems ready to

throw out the whole kitten to rudle. So I think there's no other way to explain it other than the courts membership changing. Nothing else has been that transformative in the time between June of and the winter. Did it seem as if there were three camps Justices Clarence Thomas Samuel Alto and Neil Gorst you are ready to overturn Row. And on the other side you have the liberal justices Stephen Bryer Elina Kagan who want to preserve row obvious sleep.

And then this other group of Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett, where I'm not sure where they were. Does the decision depend on those three? Absolutely? Yeah, I mean based on the argument, I'm not sure I would lay out the configuration that way that was the

configuration going in. It's just based on the argument. If you knew nothing else with the argument, you would say that there were four justices ready to overall Row right now, and you would include Brett Kavanaugh alongside Clarence Thomas, Samuel Alito, and ther Corsage and put John Roberts and Amy Coney Barrett in the middle, with Barrett I think leaning more towards the Kavanaugh at all camps and Robert certainly sort of standing on his own in this kind of viability

strategy that he laid out. But I think the votes were watching probably most closely, will be just the Sparret's vote. Justice Kavanaugh, of course was more and up for grabs vote. We all thought that, and so we may, of course don't want to read too much into what he said at argument, but what he said at argument certainly made it honest if he was leading in the direction of

the Verson Row. Justice Kavanaugh came up with a list of past Supreme Court cases that had overruled earlier decisions ruled against precedent, including Brown v. Board of Education, which outlawed the separate but Equal doctrine. We hear these justices during confirmation hearings. Talking about Roe as settled precedent, Kavanaugh said that Row was settled as precedent of the Supreme

Court at his confirmation hearings. You could go back to Justice Alito, who also said it was settled precedent, and the Justice obviously, unless there's some kind of Supreme Court reform, there's no accountability for not living up the statements you

make in your confirmation hearings after you're confirmed. And I think, of course all of them try to give themselves possible to my ability by being vague, But there's no denying that there's tension between much Justice Kavanaugh said as his hearings and what he seemed to be saying yesterday, Justice Sonia Soda Mayor made this statement about, you know, how

will we get the stench off this court? So are the conservative justices not concerned at all about public opinion or public reaction and not saying that they should be because we want judges to be independent. But it does it seem as if that's no concern of theirs anymore. Yeah, I mean, I think it's a combination of um. Some of them don't care and don't think they should care, and I think some of them may care but think

that there's a way to finesse it um. I think Justice Kavanaugh's questions seemed to be sort of reaching for that right to say, this is not the court harming people, This is not the court ignoring precedent. This is the Court being scrupulously neutral. This is the Court being fair. This is the Court restoring some kind of true compromise where everyone gets to stay. And I think Kavin on me well believed that a decision like that would not

damage the court. I don't think most observers agree with him on that, but I think he may think there's a way to sort of finesse, you know, getting rid of what he thinks is a wrongly decided decision without damaging the Court too much. Um. I think many of the justices, like for example, Justice Thomas, I think, just don't think that it's important, or that if they do, they're primarily concerned with the response of people with whom they agree, rather than the sort of broader public response.

At the beginning of the arguments, Thomas asked how the Court could uphold the Mississippi law without overturning the Court's precedence on abortion. Is that even possible to do? Not if you leave grow entirely intact. Cluster General Elizabeth the Lager said, the idea of a right to abortion it's important independent of viability, and the Court could say that essentially that viability is more flawed, just as the Court said in Casey that are right to choose abortion was

important independent of rose trimester framework. There's a way to do that. Obviously, to do that you have to rewrite what real means. So there's no way to do it and leave row intact. But I think it's also disingenuous to say that. You would have to say there's no abortion right if you say there's no viability. I don't think that follows. But I think many of the justices want to say there's no abortion right, many of the

advocates on both sides. I think it's preferable for the court to say there's no abortion right if they're going to side with Mississippi, and so it seems increasingly likely that that's what we're going to get. So even if the Court doesn't explicitly overturn Row, what a decision upholding Mississippi's law I'll have a far reaching impact totally. I mean, we would expect to see states interpreting this as a

green light to move forward with absolute fans. We would expect to see circuit courts agreeing with that assessment and allowing more abortion bands to stand. And we would expect, I think, to see the Court moved towards reversing Row entirely not long thereafter. And I think you might even see states with trigger laws which go into effect when ROW was gone, arguing that rowe had been overturned and that their trigger laws or bands could go into effect

if the Court overturns ROW. What would be the next step. Could we see a time where abortion is declared unconstitutional? Yeah, it's on the table. I mean anti abortion groups are already asking for it. So, for example, their anekest briefs in this taste arguing that an unborn child is a rights holding person and asking the court to hold the

abortion is unconstitutional. That doesn't seem likely in the short term, in part, of course, because Kavanaugh seems to try to foreclose that possibility right his argument that the Constitution was neutral. He's tried to clarify with Mississippi several times, are saying the Constitution says nothing about this right. You're not saying the Constitution is pro life. So at the moment, it seems that there would not be five votes for that approach.

But of course there weren't five votes for overturning Row not so long ago. And so the Overton window quite clearly is shifting on this, and I don't think he could rule that kind of thing out in the future. Is it a majority of abortion opponents who are looking towards that complete ban on abortion or is that just the fringes. No, that's the majority. Um, there are people in the anti abortion movement who I believe there should be exceptions, but the anti abortion movement, it's worth sort

of unpacking what the anti abortion movement believes. It's from the standpoint of someone who's supposed abortion. It's a human rights movement, and that means that allowing the states to decide on whether a human lives or dies is a completely unacceptable solution. So the argument that a fetis or a borg child is a right solving person is that the constitutional argument that brought in any abortion opponents into

the movement. It was an argument that predated Row. It's a deeply felt argument and so this is in no way for an argument. The reason we haven't heard more of it estimely because anti abortion lawyers didn't think it would work. I mean, I think correctly they thought it wouldn't work, but it's never really changed the fact that

that's what most of the movement wants. And we would expect, I think, to see an Evolden Nancy abortion movement as a court of versus real because the Court will then be, I think, in their views, sort of declaring the open season, or at least opening the door to that kind of artsment. So what would be needed to prevent that? Can Congress do something? No? I mean, if the court holds that if if fetus is a person, Congress. That's a constitutional holding. So the only way to change that would be to

reform the court. Again, I don't think this is happening soon because it seems that, for example, I don't know if there any there any votes for that on the court right now. I would be unsurprised if there were a few. I don't, for example, think Kavanaar there it would go for that right now. But I think really if the Court declares that, you know, declare speed old personhood, the solution would have to be either at constitutional amendment or changing the court. Finally, I just want you to

sum up what you think. I know you're referred to it before, what you think is likely to happen here, knowing that you can't tell from moral arguments. I mean, the most likely thing I think, based on oral arguments is the Court is going to say that there's no constitutional right to abortion and the space are going to be able to be an abortion by the summer of two. So that means an overturning of row. Yes, I think that's the most likely breased on yesterday, do you think

that would be a six three vote? But that's an interesting question. If they're going to overrule Row. I think Robert's may go along with it because he would want the courts to look united. I think he would think it would be worst of a five four decisions overturning Row, but I don't know. I mean it would either be six three or five four. Thanks for being in the Boomberg Glass show. Mary. That's Professor Mary Ziegler of Florida State University College of Law. This all boils down to

two decides. Who decides when it's in the best interests of the United States to disclose presidential records. He's the current occupant of the White House or um or the former who does have some interest in the confidentiality of the document. D C Circuit Court Judge Katangi Brown Jackson summed up the main question and former President Donald Trump's lawsuit to stop the National Archives from releasing White House records to the House Committee investigating the January sixth Capital Riots.

Executive privileges typically reserved for the current ocupant of the White House, and at oral arguments on Tuesday, all three judges appeared skeptical about Trump's invocation of executive privilege in a case where President Joe Biden has waived it. Here's Circuit Court Judge Patricia Millett. We have one president at

a time under our constitution. That's what G. S A is saying, and that the incumbent president has said, has made the judgment and is best positioned, and its frame court has told us um to make that call as the interest in executive branch. My guest