A leaked early draft of a coming Supreme Court decision suggests Roe v. Wade could be struck down. The landmark decision established the constitutional right to abortion and the last major challenge to it came in a 1992 case called Planned Parenthood of Southeastern Pennsylvania v. Casey. Kathryn Kolbert, an attorney who argued that case for Planned Parenthood, joins John Yang to discuss.
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Judy Woodruff: The leaked early draft of the Supreme Court's majority opinion overturning the federal right to an abortion has advocates on both sides of the issue primed for battle. John Yang begins tonight's coverage.
John Yang: Judy, after the prospect of the court overturning Roe v. Wade led to weekend protest outside the homes of some conservative justices, including Brett Kavanaugh, the White House today cautioned against threats, violence, or vandalism. The case currently before the U.S. Supreme Court is the first major challenge to Roe since a 1992 case called Planned Parenthood of Southeastern Pennsylvania v. Casey. And while the court upheld some restrictions on abortion in that case, it also reaffirmed a woman's right to choose to have an abortion before a fetus is viable and to do so without undue government interference. Kathryn Kolbert argued that case for Planned Parenthood. She is the co-author of the book "Controlling Women: What We Must Do Now to Save Reproductive Freedom." Kathryn Kolbert, thanks so much for joining us. First of all, I have to ask, what was your reaction to the draft opinion that was leaked last week? Kathryn Kolbert, Argued Planned Parenthood v. Casey Before Supreme Court: I wasn't surprised. I have been saying for some time that this current court, an ultra-conservative court, was poised to overrule Roe. But I was surprised by its vehemence. I think the way the decision was crafted not only showed the closeness of these particular justices to the anti-abortion movement. They used language from the anti-abortion movement. They used arguments put forward by those who oppose abortion. But, more importantly they opened the door to eradicating a host of rights that are based upon the 14th Amendment. And I was surprised by that. I thought it would be much narrower.
John Yang: And the opinion in the case you argued, that you won, they spent a lot of time, the justices in that opinion spent a lot of time talking about precedent and the importance of precedent to the institution, institutional integrity of the court. In Alito's draft, he wrote that precedent is not an inexorable command and that it's at its weakest when we interpret the Constitution. Last week, Justice Thomas said that precedent was a mantra when we don't want to think. You just talked about what impact this might have on other cases and other rights. Talk about that a little bit, what this might bode for the future.
Kathryn Kolbert: Well, I think the really critical part of the decision is that five justices of this court have said that they can overrule a long history of support for civil rights and civil liberties because they individually disagree with it. And that has never been the case. What has — the doctrine of stare decisis says that, when a law is made, it ought to be respected from generation to generation, and only in really specific circumstances, when the underlying law has changed, when the circumstances of the factual underpinnings of a case have changed. It ought to be upheld. And I think the hard part here is, let's think about this. We have had five decades of support for Roe vs. Wade. And then entire generations of women in this country have relied upon this decision, and, frankly, ordered their lives. Millions of women have obtained abortions as a result of Roe. And all of that is being rolled back because five individuals decided, in my view, willy-nilly, to change the law. And I think that is a real hit on the institutional integrity of this court.
John Yang: Justice Alito, I think, tried to address that when he wrote that abortion is different from the other sort of liberty-based rights, the court has found, like intimate sexual relations, contraception and marriage. He said that abortion destroys a life. And, therefore, it's different. What do you make of that?
Kathryn Kolbert: Well, first of all, the rights guaranteed in Roe are what I think of as reciprocal. It is the right to make a decision to have an abortion, but also to decide to carry a pregnancy to term, that is, to go both ways. It's protecting the decisional interests of a woman. And so that's no different no matter if you're using contraception or you're deciding to be sexually active with a person of the same sex or you decide to enjoy same-sex marriage or even interracial marriage. All of those rights are based on the Liberty Clause of the 14th Amendment, which says that important decisions about every people's lives — people's lives ought to be protected. They ought to belong to the individual, and not to politicians.
John Yang: The draft that was leaked is marked first draft. In your case, the case you won, which is referred to as Casey, we learned much later that there was a first draft that was quite different from where the court ended up. Talk about — tell us about that.
Kathryn Kolbert: Yes. Right after my oral argument, the court retired to their conference room. There were was a vote of the justices. And five justices did vote to overrule Roe. At the time, Chief Justice Rehnquist wrote a draft opinion, and I note much narrower than Justice Alito's draft opinion. But Justice Kennedy, at the last minute, changed his vote, joined with Justice Souter and Justice O'Connor, and came up with the decision in Casey, which protected the right to choose abortion, gave states greater ability to restrict those rights, but ultimately meant that, for the last two decades, we have had legal abortion in this country. The interesting part of that is that everyone says, well, that could happen here. I don't think so. There's no Justice Kennedy on this current court. All of the members in the majority, the five justices who joined — the four justices who joined Samuel Alito are very, very conservative. They come from the anti-abortion movement. They were nominated on the promise of reversing Roe. And I just don't see any of these ideologically-based justices changing their minds, as Justice Kennedy did.
John Yang: Do you think — I mean, this, obviously was a first draft. I think it's two months old. It's hard to believe it's not already obsolete, that there are other, more current drafts. There's a more current draft. Do you think any of the language is going to change, any that — you talked about, anything is going to change?
Kathryn Kolbert: I think there may be some moderation in the language. But the reality is, is there are five very, very ultra-conservative justices who are intent on undermining the ability of women to be equal in this society. And they're making their views known.
John Yang: Kathryn Kolbert, who argued for Planned Parenthood in Planned Parenthood v. Casey, thank you very much.
Kathryn Kolbert: Thank you.Judy Woodruff: And on tomorrow's "NewsHour," we will hear from a lead attorney opposed to abortion rights.