CHUCK TODD:
This Sunday: The fate of Roe v. Wade.
VICE PRES. KAMALA HARRIS:
How dare they tell a woman what she can do and cannot do with her own body.
CHUCK TODD:
A divided country reacts to that draft Supreme Court decision.
ABORTION OPPONENT:
I’ve been praying for this for as long as I’ve understood what a baby was, and it’s a big deal.
ABORTION RIGHTS SUPPORTER:
This is an attack on women.
CHUCK TODD:
In Washington, strong reaction from abortion rights supporters.
SPEAKER NANCY PELOSI:
An assault on women.
GOV. GRETCHEN WHITMER:
I’m gonna fight like hell to protect this right for Michigan women.
SEN. LISA MURKOWSKI:
It rocks my confidence in the court.
CHUCK TODD:
While most Republicans shy away from the issue and instead focus on the leak.
SEN. LINDSEY GRAHAM:
It’s a breach of protocol I think will compromise the ability of the court to find consensus.
SEN. TED CRUZ:
The most egregious breach of trust at the Supreme Court that has ever happened.
CHUCK TODD:
Plus, the fallout: Will this galvanize Democrats heading into the midterm elections?
PRES. JOE BIDEN:
This MAGA crowd is really the most extreme political organization that’s existed in American history.
SEN. JOHN BARRASSO:
They want to get off of the things that are so unpopular about this president.
CHUCK TODD:
Also, could a nationwide ban be the next step? Are other rights in jeopardy? And can either party find a position that meets Americans where they are? I'll talk to Mississippi's Republican governor Tate Reeves, who supports banning most abortions, and to Michigan's attorney general Dana Nessel, who opposes an automatic abortion ban that would go into effect in her state. Also: Inside the Court's decision-making process with former Supreme Court clerks Neal Katyal and Jennifer Mascott. Plus our panel: Kimberly Atkins Stohr, Sara Fagen, Josh Gerstein, and Ali Vitali. Welcome to Sunday and a special edition of Meet the Press.
ANNOUNCER:
From NBC News in Washington, the longest-running show in television history, this is a special edition of Meet the Press with Chuck Todd.
CHUCK TODD:
A good Sunday morning, and a happy Mother's Day to all the moms out there including my mother, grandmother and wife. The draft decision overturning Roe v. Wade has only added to the growing perception that the Supreme Court is just one more partisan institution, now a creature of politics, no longer above it. The leaked decision was a victory for conservatives who have worked decades for this moment, and it was a shock to millions of Americans who have never lived in a world without abortion rights. In this morning's special edition we're going to cover this story from all angles: the real-world fallout, the confusing checkerboard of state laws that would soon be in effect, along with real questions about what other rights might be in jeopardy. The political fallout: many Democrats believe the issue will help them in the midterms, but the idea that overturning Roe would energize Democratic voters has never been tested. It will be now. Plus the Court itself, and its broken confirmation process, manipulated most recently by Mitch McConnell to manufacture this conservative majority, that appears ready to overturn Roe in a country that apparently wants it preserved. With 50 states making their own rules, it all adds up to further division in a country already split in two.
[START TAPE]
VICE PRES. KAMALA HARRIS:
Women's rights in America are under attack.
SEN. LINDSEY GRAHAM:
We are going to win in 2022. Roe v. Wade is not going to change the outcome.
CHUCK TODD:
After the leak of that early draft ruling reversing Roe…
LESTER HOLT:
The Supreme Court appears poised to overturn Roe v. Wade.
CHUCK TODD:
... governors and state legislators are rushing to define their positions in a post-Roe world.
GOV. BILL LEE:
The lives of unborn children are – it’s very important that we protect the lives of them.
GOV. GAVIN NEWSOM:
Where is the Democratic Party? Where's the party? Why aren't we calling this out? This is a concerted, coordinated effort. And yes, they're winning.
CHUCK TODD:
Should Roe be overturned, at least 25 states will likely ban abortion. Thirteen of them have "trigger bans,” meaning it will immediately be outlawed.
TAMMI KROMENAKER:
It means lights out in North Dakota.
SHANNON BREWER:
It's a shot in the face, it's just like “bam,” to women of color especially.
CATHERINE GLENN FOSTER:
We're going to continue to focus on those women, focusing on the humanity of those women.
CHUCK TODD:
Democrats are hoping to turn voter attention away from high inflation ahead of the midterms by drawing a sharp contrast on abortion rights.
PRES. JOE BIDEN:
This MAGA crowd is really the most extreme political organization that's existed in American history.
CHUCK TODD:
And warning that Republicans, via the Court's conservative majority, could take away or erode other rights, from access to contraception to same-sex marriage protections. National Republicans have focused on the leak itself …
SEN. JOSH HAWLEY:
The leak is reprehensible.
SEN. TED CRUZ:
Egregious breach of trust.
SEN. MITCH McCONNELL:
We'll find the leaker.
CHUCK TODD:
... and largely avoided questions about the future of abortion rights.
SEN. MITCH McCONNELL:
Well, that's not the story for today.
CHUCK TODD:
A document circulated by the NRSC, the campaign committee in charge of getting Senate Republicans elected, advises Republican candidates to, quote, "be the compassionate consensus builder on abortion policy."
SEN. RICK SCOTT:
You know, there should be an exception for rape and incest. Uh, so I think that's where -- I think that's where the American publice -- public is.
CHUCK TODD:
Already, Democrats are raising the issue in competitive midterm races, from Michigan to Florida, New Hampshire, Nevada to Wisconsin …
SARAH GODLEWSKI:
I'm at the Supreme Court, where it looks like Ron Johnson is going to get exactly what he wants: overturning Roe v. Wade.
CHUCK TODD:
... as both parties try to define each other by their most extreme positions.
DEBATE MODERATOR:
Would you ever support a ban that does not make exceptions for incest or rape or life-threatening conditions?
GARY BLACK:
I support a total ban.
JOSH CLARK:
Yes, absolutely.
KELVIN KING:
No, there should not be exceptions.
JON McCOLUMN:
The answer is no.
CHUCK TODD:
In a recent Pew poll, just eight percent of Americans say abortion should be illegal in all cases, without exception. Thirty-seven percent overall say it should be illegal, including those who want exceptions. Sixty-one percent say it should be legal in all or most cases. Still, though a majority of Americans support Roe, Senate Democrats do not have the votes to codify it in legislation. They expect to take it up, and fail to pass it, later this week.
SEN. CHUCK SCHUMER:
This is not just one vote and then this issue goes away. You will hear a lot from us through the next months, all the way through November.
[END TAPE]
CHUCK TODD:
Mississippi is one of the 13 states with trigger laws that would ban abortion once Roe is overturned. And, of course, the draft opinion is about a case in Mississippi. Tate Reeves is the governor of Mississippi, an opponent of abortion rights, and he joins me now. Governor Reeves, welcome back to Meet the Press.
GOV. TATE REEVES:
Well, thank you for having me on this morning, Chuck. And as an aside, happy Mother's Day to all those moms out there, particularly the First Lady of Mississippi and my mom and grandmom.
CHUCK TODD:
Well, let me – let me double down on that and wish them a happy Mother's Day as well. Let me ask about this – this case itself. One of the odder aspects of your law is that this law appears to have been passed with the intent of hoping it would not be enacted. The reason I say, is – you passed a 15-week ban after this trigger law was passed in '07, and I know you were a lieutenant governor when the 15-week ban was. But the whole point of this was to get a case to the Supreme Court to overturn Roe. So will the 15-week ban, if Roe is overturned, ever be implemented in the state of Mississippi?
GOV. TATE REEVES:
Well, you're, you’re right that the – the trigger law was put into effect in 2007. I should point out, and I think this really points towards, sort of, the changing approach with the two political parties on this issue, but the 2007 trigger law was actually enacted with a Democrat speaker of the House. And it was enacted with a Democrat chairman of the Public Health Committee. But when we enacted the 15-week ban, our initial intent and our goal was really just to save babies' lives. We believe that if Roe was not ever overturned, that it was certainly the viewpoint of Mississippians that if we could enact laws that would save babies' lives, that it would be an, an endeavor to do so. If in fact the – the leaked opinion, Chuck, is accurate, and if in fact this Court votes to overturn Roe, you are correct. Our trigger law will go into effect, and we will ban abortions with the exceptions of rape and the life of the mother because of that trigger law that passed in 2007.
CHUCK TODD:
Yeah, I, I noticed that trigger law doesn't include an exception for incest. Why?
GOV. TATE REEVES:
Well, I wasn't in the legislature or the executive branch at that time. That was a decision that was made by, by the Mississippi legislature. And I think it's certainly a conversation. There are exceptions for rape. There are exceptions for the life of the mother. And, and we'll see what happens based upon the ultimate outcome of this Dobbs case that is before the Supreme Court.
CHUCK TODD:
What about contraception and birth control, particularly IUDs? I mean, is this total ban that gets put in on abortion, is that going to have an impact on women that decide to have certain types of birth control like IUDs?
GOV. TATE REEVES:
I don't think that it is going to apply to those that choose to use birth control. I believe that clearly a life begins at conception, and I am trying very hard to make sure that everyone in America knows that the overturning of Roe certainly puts the decision-making on abortion policy back in the elected representatives in each of the 50 states. That, by the way, is where the decision-making was in America for the first 200 years of our country until 1972 when, in my opinion, Roe was wrongly decided.
CHUCK TODD:
I – you know, it's interesting you say that, that the Supreme Court's going to take something, take away a right that was in the hands of individual women. And I want to play something for you from Senator Kirsten Gillibrand, who believes this decision essentially takes away some of her citizenship. Take a listen.
[START TAPE]
SEN. KIRSTEN GILLIBRAND:
I hope every human being in this country understands that when you take away a woman's right to make her decisions about her health and well-being, she is no longer a full citizen. She no longer has freedom. She no longer has bodily autonomy. She no longer has basic civil rights or civil liberties.
[END TAPE]
CHUCK TODD:
Respond to her. How does this not take away a woman's right to control her own body?
GOV. TATE REEVES:
Well, that, that right that she is talking about, there is no right to an abortion in the United States Constitution. In fact, there's also nothing in the U.S. Constitution which precludes individual states from regulating abortion policy. And what I would say to you, Chuck – and look, I'm empathetic to all of these ladies who find themselves in, in very difficult times and very difficult decisions. But what makes this different, what makes abortion different, is if you believe as I believe, that's an unborn child in that mother's womb. That is -- what we are trying to do is stand up for the rights of those unborn children. Stand up for those who absolutely cannot stand up for themselves. That's why this, this decision is so important. It's also why there's very high emotions on both sides of this particular topic. And I understand that.
CHUCK TODD:
Look, you've just said that you believe life begins at conception. If there is legislation brought to you to ban contraception, would you sign it?
GOV. TATE REEVES:
Well, I don't think that's going to happen in Mississippi. I'm sure they'll have those conversations in other states.
CHUCK TODD:
But you're not answering the question.
GOV. TATE REEVES:
As is always the case with things -- well, that's always the case. There's so many things that we can talk about. What the next movement in the pro-life movement in my view, Chuck, is simple. And that is we must prove that being pro-life is not just about anti-abortion. What we want to do next is we want to continue to focus on the two things that are very important, and that is ensuring that those expectant mothers have the resources that they need. That's why in Mississippi this year we invested significant additional resources in pregnancy resource centers and that we are working to build a system. We have 37 of those in Mississippi, and we're working to build a system throughout our state to ensure that every expectant mother has access to the information and the education that they need. The second piece of the equation, and the second piece of the next phase of the pro-life movement, is we've got to make sure that we make it easier on those babies that are born, either through the potential for adoptive services – we've got to make it easier for adoptions. We've got to find resources for adoptions. We've got to also make sure that we improve our foster care system. In Mississippi, for instance, we invested over $100 million combined of our ARPA funds as well as other state funds to improve technology at our Department of Human Services, at our Child Protection Services –
CHUCK TODD:
Yeah.
GOV. TATE REEVES:
– so that those babies that are not adopted that end up in our foster care system, that we care for them and we do so in a way that recognizes the importance of the next phase of the movement.
CHUCK TODD:
Governor, though, you're a state that really doesn't do a good job of helping children. One in three Mississippi children live in poverty. If you're going to order women to be pregnant – and that's what your law is going to do, the state is going to order women to stay pregnant – you're talking about providing resources while they're pregnant. What are you going to do for that child after they're born? What are you going to do for that mother? Are you – you know, again, I look back at Mississippi's numbers here. Child poverty is already at a level that is, to me, should be unsustainable. Why should we believe that you're going to provide the resources for these women if they have these babies?
GOV. TATE REEVES:
Well, look, Chuck, I mean, it's a fair question, and one that what I want you to know is that when I was sworn into office in the middle of January of 2020, in my inaugural address I made it very clear that my job as governor is not to try to hide our challenges, not to try to hide our problems, but to find solutions to those problems. And that's what we're going to continue to do. It's the reason I just mentioned that we are investing $100 million in technology for our Department of Child Protection Services. There's no doubt that our – we have a long history of health outcomes that are, are not acceptable. We have a long history of poverty. And the way in which you address poverty – government has real challenges doing that, but the way in which you address poverty is by improving educational attainment, improving educational outcomes, and by improving the opportunities and job skills for those individuals so that they can go to work, and provide for themselves and provide for their families. And those are – it's a multi-taceted [SIC] approach. And it's certainly not easy. And I would never argue that it is. But I can tell you with certainty that in Mississippi we're working hard every day to address each and every one of those issues.
CHUCK TODD:
Governor, the last thing is, at the end of the day, women have less rights under this law than men do. How do you justify it?
GOV. TATE REEVES:
What I would say, Chuck, is at the end of the day there is no right to an abortion in the United States Constitution, that the issue with abortions that makes it very different is that there is a life. There is an American child in that womb. And it's incumbent upon those of us who are elected to stand up for the rights of those individuals that can't stand up for themselves.
CHUCK TODD:
Governor Tate Reeves, Republican Governor of Mississippi, appreciate you coming on and sharing your perspective with us.
GOV. TATE REEVES:
Thanks, Chuck.
CHUCK TODD:
The story in Michigan is a bit different from Mississippi’s. Michigan, typically a blue state, has an abortion ban that was passed in 1931, and it would go into effect if Roe v. Wade was overturned. The state's Democratic governor, Gretchen Whitmer, wrote on Twitter that she will “keep fighting like hell” to preserve abortion rights. Dana Nessel is Michigan's attorney general. She joins me now. Madame Attorney General, it's good to see you.
DANA NESSEL:
Thanks for having me, Chuck, and happy Mother's Day to my mom and to all the moms out there.
CHUCK TODD:
And a happy Mother's Day to you and also your mom. Let me start with the decision you've already made. You said if Roe is overturned, you are not going to enforce this 1931 law. But you can't prevent others in the state from enforcing the law. Explain.
DANA NESSEL:
Well, there's 83 duly-elected prosecutors for every county in our state. As attorney general, I have statewide jurisdiction. And I ran on a platform of understanding that likely during the course of my term, Roe v. Wade would be overturned. And this incredibly draconian and strict 1931 law would criminalize abortion in this state with virtually no exceptions – no exception for rape, for incest, no exception for medical emergencies. And understanding that the lives of our 2.2 million women who are of childbearing age in this state, their lives would be at risk. I refuse to enforce this draconian law that will endanger their lives and put in jeopardy the health, safety and welfare of the lives of each and every woman in the state of Michigan.
CHUCK TODD:
Look, I want to bring up -- it's part of the Michigan penal code, and I want to note one other aspect of this law. It actually makes mention of the use of drugs. "Any person who shall in any manner … sell or publicly expose for sale … drugs or combination of drugs, designed expressly for the use of females for the purpose of procuring an abortion, shall be guilty of a misdemeanor. ... [T]he druggist or dealer selling the same shall … register the name of the purchaser, the date of the sale … and then the name and residence of the physician prescribing the same." Madame Attorney General, this is a -- it seems like a draconian law and puts the doctor and the woman in criminal jeopardy. Am I reading that correctly?
DANA NESSEL:
Yeah, I think you absolutely are. And if you look again at the phrasing of the, of the law that prohibits abortion in the first place, it talks about administering medication for an abortion. And so, you know, even if the woman were to procure abortion medication, and then take it on her own, she herself would be guilty of that crime. So, we're talking about not just throwing providers and anybody who works with a provider, under aiding and abetting theories, in prison, but also women themselves, who procured abortion through abortion medication. So, it's a really scary set of circumstances for women here in Michigan.
CHUCK TODD:
Look, I mean, another instance, the tragedy of a miscarriage. Does this mean a doctor cannot perform the procedure that's necessary, essentially, when you – when you've identified a miscarriage? It seems to me that – that some OBGYNs are going to think they are committing a crime if they essentially just do what most doctors would do right there, which is the D&C.
DANA NESSEL:
Yeah, I think that what's going to happen is doctors will be so afraid that there will be investigations into these procedures, even understanding that many times those procedures are performed where there -- you know, there is no viability any longer. But because it’s the same procedure that you might perform for an abortion, they will be so concerned that these cases will be investigated, it will have a chilling effect, and you won't have basic medical health care that is required for women not to have extreme health problems or even die. Doctors simply are not going to perform those procedures anymore because they don't want to go to prison for it.
CHUCK TODD:
All right, let's talk about the various forms of relief that you and other abortion rights supporters in Michigan are seeking. You've got the governor's, I guess you’d call it a lawsuit, to this – or trying to get clarification from the Supreme Court, state Supreme Court, I guess, to wipe out the, the law. Planned Parenthood has filed a suit against you, which you have said is misguided. But obviously they're trying to attain a similar outcome from the state Supreme Court. And then there is a petition campaign circulating to put a constitutional amendment on the ballot. Those deadlines are in July. What is the, what is the safest way to protect abortion rights in Michigan right now, of those three paths?
DANA NESSEL:
Well, firstly, I think each and every eligible voter in the state should be signing on to the you know, Reproductive Rights for All petition, and then coming to the polls and voting on it in November and voting for every pro-choice Democrat up and down the ticket, whether it's for federal office or for state office. But in addition, you know, I have great hope and I put my full support and my attorneys are representing the governor in her lawsuit and I'm very hopeful that the Michigan Supreme Court will find that under our equal protection clause, under our due process clause of the Michigan Constitution that, you know, the right to an abortion is, you know, fundamental under our Michigan Constitution, even if the United States Supreme Court decides otherwise. But let's make it very clear: the radical and extremist position of the Republicans in our state and all around the country completely contradicts what the public wants, and it really does place the lives of women in jeopardy. Let's be clear: women in my state, and in states all over America are going to die because of this position. And I heard the Mississippi governor when you interviewed him, he refused to answer the question of whether or not he would sign a bill completely outlawing the use of birth control. That is not in line at all with how Americans see their rights. And politicians do not belong in our doctor's offices. They don't belong in our bedrooms. And they should not be making these kinds of decisions on behalf of the American public and on behalf of women across America.
CHUCK TODD:
I just want to clarify, is the constitutional amendment the better guarantee here? Because maybe you get a ruling from this version of your state Supreme Court, but I assume you don't want to be relying on that in the future.
DANA NESSEL:
Yeah, that's correct. I think we need to see both. I would like to see a ruling from the Michigan Supreme Court so that there's not even any period of time under which women are denied reproductive health care in Michigan. But then in addition to that, absolutely, this needs to be codified into our state Constitution. And if we have enough people that care about this issue and who come out to vote in November, I see that happening. And I think that is – that both of these courses of action need to occur in order to better protect women in our state.
CHUCK TODD:
Dana Nessel is the chief law enforcement officer as the attorney general in the state of Michigan, and suddenly may be confronting this sooner than she ever imagined. I appreciate you coming on and sharing your perspective with us.
DANA NESSEL:
Thanks for having me.
CHUCK TODD:
When we come back, what are the chances that the draft decision will change substantially? And if it doesn't, what other rights might be in jeopardy? We'll speak to two former Supreme Court law clerks to take us inside the court's machination.
CHUCK TODD:
Welcome back. One reason abortion rights supporters are so upset with the draft decision involves something called stare decisis. It’s the idea that courts are bound by legal precedent. Both Amy Coney Barrett and Brett Kavanaugh suggested in their confirmation hearing that precedent would be important in considering Roe. Here's Kavanaugh from his confirmation hearing.
[START TAPE]
JUDGE BRETT KAVANAUGH:
It's settled as a precedent of the Supreme Court entitled to respect under principles of stare decisis. And 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.
[END TAPE]
CHUCK TODD:
A lot of people heard a lot in that sentence. I think that all we can say now is he stated fact. I'm joined now by two legal experts to discuss the draft decision and where the Court might go from here. Neal Katyal is a former acting U.S. solicitor general. He clerked for Stephen Breyer and has argued 45 cases before the Court. And Jennifer Mascott is an assistant law professor at George Mason University. She's clerked for both Kavanaugh and Clarence Thomas. I should make the note for Kavanaugh it was at the circuit level, if I have that right. Welcome to both of you. Hopefully you can take us inside the Court here a little bit. I want to – the leak decision was not the first leak. There was a first leak, and it was a few days before: the Wall Street Journal editorial board. I want to note a little something here, Neal. “The oral argument suggested that five justices leaned toward doing so, but a ferocious lobbying campaign is trying to change their minds. The particular targets are Justice Barrett and Brett Kavanaugh.” Within five days, this editorial was going to speculate correctly that Alito was writing the majority opinion. It appears there is a debate happening in the Court. Take us inside the Court. When you read this, you put it together, what's going on?
NEAL KATYAL:
Yeah, so I think that the leak that came this week from Politico is the more extreme one, because we actually see the draft opinion, something that, to my knowledge, has never happened. So the process is there was an oral argument in December, the justices all voted in a conference. Nobody else is allowed into that conference. They take a tentative vote. The senior-most justice then assigns the opinion to herself, himself, or whomever. Here it looks like it was assigned to Alito. And then that draft was circulated in February for comment by the other justices. It's of course possible that votes change. That sometimes happens. But it's extremely rare. So what this decision says – and you started with stare decisis – it's so important because this draft decision says they're going to overrule Roe v. Wade, overrule Planned Parenthood v. Casey. It's as extreme an opinion, Chuck, as you could imagine. It looks like it was written by Robert Bork, the failed Supreme Court nominee.
CHUCK TODD:
Jennifer, you've clerked for Brett Kavanaugh on the Circuit. Is he – do you sense that he's waiting to see what the chief justice, who may be writing another opinion – that seems to be the speculation – that would preserve Roe and allow maybe a new definition of viability. Do you sense that that is something he's open to?
JENNIFER MASCOTT:
Well, first let me just join you both in saying I think the leak this week was unprecedented, it’s an outrage. I mean, the Supreme Court's a very collegial institution. The justices across the nine chambers work in a lot of trust and conference – confidence with each other and I think are trying to neutrally apply the rule of law. And I think it's actually quite breathtaking how detailed and well-reasoned and thorough this opinion was as of February. And so I think what Justice Kavanaugh and the rest of the justices will be doing is applying the Constitution as they understand it and are not going to allow themselves to be bullied or intimidated by this outrageous leak this week.
CHUCK TODD:
All right. But going back to whether Kavanaugh is weighing the precedent issue here, did Susan Collins only hear what she wanted to in that statement from Brett Kavanaugh?
JENNIFER MASCOTT:
Well, I think what this draft opinion makes very clear is that the Court itself has never been able, after all these decades, to settle on what justification would uphold the reasoning in Roe. In fact, that decision's been divisive and criticized from the day that it came down. And so I think the justices are looking at the text of the Constitution and recognizing that perhaps the Court has had a hard time settling on the justification because there's just no right in the Constitution on this complicated moral issue that more properly belongs with the American people.
CHUCK TODD:
Neal, when you read Alito's opinion, did you say to yourself – would it change how you might have defended Roe or argued it in the first place?
NEAL KATYAL:
I totally disagree with my friend Jennifer. There was nothing persuasive in that draft whatsoever. Roe was, of course, a contentious decision. It was – but it was decided by a 7 to 2 majority of the Court. Five of those seven were Republican-appointed justices. And the Supreme Court in 1992 sailed well past Jennifer's point. They said, "Even if Roe might be – have different theoretical bases, privacy, equal protection, whatever, it's now the law of the land. The Court's credibility is staked on it being the law of the land. Social expectations have crystallized around it.” So for them to overrule this, Chuck, which is the super precedent of super precedents, calls every other precedent into question, from gay marriage to contraception, as you were talking about before with the Mississippi governor.
CHUCK TODD:
I want to ask, actually, about the – because in the draft opinion Alito tries to say, "Hey, I don't want this to be used for anything else because privacy has been used for contraception, privacy has been used to justify same-sex marriage.” Just because you say it doesn't mean it's true.
NEAL KATYAL:
Oh, absolutely.
CHUCK TODD:
I mean, we learned this with Bush v. Gore. So why – why shouldn't folks who are in same-sex marriages be – why shouldn’t they be nervous right now?
NEAL KATYAL:
Unfortunately, I think they have to be nervous right now. It's the rationale that the Court – that Justice Alito used in the draft opinion. If that draft opinion rationale stays the law of the land, it says basically the right has to be historically rooted in the deep traditions of the people. That is not, I think, a test that gay marriage would meet if you have that kind of, you know, really harsh reading. And it does reflect that underlying conception that some justices on this Court, you know, pretend to be talking about the original intent of the Constitution, and they are anything but when it comes to striking down the Voting Rights Act, they make up the doctrine when they call corporations people, they make up the doctrine. It's not in the text of the Constitution.
CHUCK TODD:
Jennifer, why should folks who are in same-sex marriage be comforted by what Alito wrote in the draft opinion?
JENNIFER MASCOTT:
Chuck, with respect, Neal I think here is just flat wrong. And I think President Biden's remarks just this week show why. Even he acknowledged that we've got complicated questions here involving a child that makes this case fundamentally different from any other issue. We have another human life at issue. These are complicated questions the American people feel strongly about. And the language that Neal's quoting, "deeply rooted," comes from a 1997 opinion that itself was quoting opinions back to the 1930s. This is nothing new. This is an unprecedented issue, unique of its kind, and I think it's quite telling that the instant this draft was leaked, people started talking about other questions, not this one, as if this opinion itself really is not all that objectionable.
CHUCK TODD:
You don't believe that this is getting rid of a right to privacy, that basically it’s saying, "There's no right to privacy in the Constitution?"
JENNIFER MASCOTT:
I don't think that this opinion says that more generally because it's focused on the right of and interest of the child. And it's essentially, here the Court is actually doing an admirable thing, I think, in the draft opinion, in taking itself out of the seat of power and leaving decisions up to the American people.
CHUCK TODD:
Neal, where does this go? Is the Supreme Court going to hear more abortion cases, assuming they do overturn Roe, for now and perpetuity?
NEAL KATYAL:
I think they will. And the idea that this draft is going to return things to the people I think is just ludicrous. I mean, I'd feel a lot better if the Republican Party wasn't a party built on basically keeping the voters away from the polls and the like. You can't preach the language of democracy on Monday and then on the other six days of the week try and take it away from the American people. And so yes, Chuck, I think whatever the Court does here, there's going to be abortion case after abortion case. Your guest just a moment ago discussed things like contraception. Louisiana's banning IUDs and the like. So absolutely, they're in the thick of it.
CHUCK TODD:
All right, I literally have to go. Do you expect this opinion to change much from the draft opinion? You don't.
JENNIFER MASCOTT:
Not at all. I respect the justices, they will not be intimidated.
CHUCK TODD:
And what do you expect?
NEAL KATYAL:
I can't predict that one at all. This is unprecedented.
CHUCK TODD:
You think – you think it's possible they rehear the case, don't you?
NEAL KATYAL:
Oh, I do. I think they could rehear the case. And I also would never count the chief justice out. His vote didn't matter in December, but it might matter now.
JENNIFER MASCOTT:
Rehearing would be a disaster. A disaster.
CHUCK TODD:
Neal Katyal, Jennifer Mascott, thank you both for being here. Appreciate it. When we come back, Democrats are hoping that overturning Roe will generate anger in their base. We see it happening. Will it lead to a big turnout in November? That part we don't know yet. Panel is next.
CHUCK TODD:
Welcome back, panel is here. NBC News Capitol Hill correspondent Ali Vitali; legal affairs reporter Josh Gerstein, the man who broke the Supreme Court story of all time, if you will, for Politico; former George W. Bush White House Political Director Sara Fagen; and Kimberly Atkins Stohr, senior opinion writer for the Boston Globe, also a holder of a law degree, so watch out. Josh, let me start with you. Has it sunk in what this, what your report perhaps has done to the Supreme Court for a generation?
JOSH GERSTEIN:
Well, it's starting to. I mean, when that large black imposing fence went up around the Court earlier in the week, it certainly indicated that the Court itself now realizes that whatever decision it issues on this is going to have pretty dramatic, momentous implications and probably is likely to anger a number of people on one side or the other.
CHUCK TODD:
You think it's going to change the way you get to cover the Court?
JOSH GERSTEIN:
Well, it probably makes it even harder to press some of the issues for access to the Court. We've had a lot of concerns about the Court and transparency, even through this period of Covid over the last couple of years, but even before that. So, they're probably going to be even more skittish about that than they were before, but it was not a terribly transparent institution to start with.
CHUCK TODD:
That's for sure. Look, we talk – a lot of times we'll say, "Hey, boy, this is going to change everything politically." Ali, this feels – did you sense that on Capitol – is this actually a moment where we say, "Everything's changing," and it's really changing?
ALI VITALI:
Well, look, I mean, I think that Democrats and Republicans both have been talking about this in theory for a really long time. I know it's not popular to say, "We don't know," but this is totally untested. For the last 49 years, women in America haven't had to grapple with wondering if there are protections in place for abortion. And so I think from an electorate perspective, all of this remains untested. And so we'll have to see going forward. I will say, on the Hill, Democrats and Republicans took, of course, completely divergent views here. Republicans, of course, focusing on the leak, not the substance. You'd almost be forgiven if you wondered, "Hey, didn't they push for this for several decades?" On the Democratic side, though, and we'll see this next week, they're going to push for a vote on the Women's Health Protection Act on Wednesday. It's going to fail. There seems to be some divide on if it's better if it fails in bipartisan fashion or in fully Democratic fashion. But nevertheless, it sort of leaves them where they started in terms of having no way to federally codify this.
CHUCK TODD:
Politically, if you just look at exit polling, Sara and Kimberly, this appears to favor the Democrats. Let me put up some battleground state polling on the abortion issue. Majorities in just about every battleground state in 2020 wanted it legal. Only Texas is sort of the outlier – a plurality, 48-45. And you of course look at Colorado there, they're very libertarian, not a surprise there. So I understand, Kimberly, why Democrats think this is a game-changer for them for the midterms. Is it?
KIMBERLY ATKINS STOHR:
We'll have to see, because this is so unprecedented in the way that it's coming out. And it is a midterm election year to boot. We will have to see. I think we've talked before about a lot of other issues that Democrats thought would be big motivators, and it turned out not to be. They turned out – whether it's gun control, whether it's police reform – and it turned not to be. So I think we will have to see. I think one thing Democrats really should be thinking about is their long game at this point, because this is the result of a Republican long game that was very dedicated for decades in order to put conservatives in office so that they can put conservatives on courts. And Democrats need to develop something like that.
SARA FAGEN:
I think it's a bit of a tale of two stories. I do think it will motivate Democrats. I don't know how it couldn't. And they're incredibly depressed. You look at polling. The question, though, is what is the debate? And the debate may cut against Democrats, where you have a very aggressive progressive movement that believes that abortion on demand at any point in a pregnancy, which is not where the public is. So, so you showed exit polling. It shows people who abortion legal. The question is: What is the definition of legal? And so if we have a debate in this country in a number of these states where the Democratic candidate is calling for abortion at any point in the pregnancy and a Republican candidate is calling for a more moderate stance, that is going to accrue to the Republican Party.
CHUCK TODD:
But where is there evidence that the Republicans have a moderate stance here?
SARA FAGEN:
I mean certainly –
CHUCK TODD:
There isn’t – I mean, that's the thing. What you outline on the left is correct. But I don't hear exceptions anymore for rape all the time in many Republicans anymore.
SARA FAGEN:
We just, we just heard Tate Reeves talk about exceptions for rape and the life of the mother. And –
CHUCK TODD:
But not incest.
SARA FAGEN:
And, I imagine that will go through pretty quickly, but we'll see.
CHUCK TODD:
Well, that – but see, that's where – that’s I think making the point here.
SARA FAGEN:
And after that point, though, there was a law passed in Mississippi on viability at 16 weeks. So, I mean, as the debate moves to viability, Republicans are in a much stronger position than where the progressive movement is.
CHUCK TODD:
But is the debate viability?
JOSH GERSTEIN:
Well, I mean, I think the, the real issue is that, while there may be a debate as Sara's saying, what's going to happen right away if Roe is struck down at the end of June is all these trigger laws and laws that are already on the books from 100 years ago are going to kick in in many, many states. We're talking maybe 26 states that will almost immediately end up with very severe restrictions or bans on abortion. So the debate may continue, but in those states, women are going to find a great deal of difficulty in getting access. In some states they may have to travel 1,000 miles in order to get an abortion.
ALI VITALI:
I was – I was just in South Dakota. It's one of the states with a trigger law. And they've already had one of the most restrictive set of rules there governing what they can do for years. They are so restricted that they're finding they have to have doctors come in from out of state because local doctors are either too worried about the local repercussions or they don't want to do it. And at the same time, they're talking about women traveling over 1,000 miles because of just the vastness in some of these rural states. And so when you talk about the trigger law states, effectively what you could end up with is on the coasts, those two patches of blue where it's accessible, and most of the middle of the country where it's not, you sort of just have have and have nots here.
SARAH FAGAN:
I mean, I think there’s a – there's a lot of manufactured outrage happening around this issue. You know, Illinois is completely controlled by Democrats. And these legislatures, I think, will move very quickly around this legislation. So yes, there's going to be a period of significant tumult around this. And people who feel very passionately about the protection of life, you know, are going to be loud. But the people who feel passionate about abortion are going to also be loud. And we're going to spend probably most of this fall talking about abortion.
CHUCK TODD:
Well, it's interesting, Kimberly, that – my experience with abortion is the party that overreaches gets punished. And what does overreach look like to the public?
KIMBERLY ATKINS STOHR:
Yes. I mean, I think we're going to get a good idea about what that overreach looks like as these laws come into play. We also need to talk about what voters were talking about. And especially in statewide races there's always this big focus on women voters, suburban women voters. But keep in mind that a lot of those women will still have access to abortion regardless of what state they live in. It's the others, the people who are in a different position, who won't.
CHUCK TODD:
I'm going to pause it there. We want to make note, sadly, of a grim milestone that we've reached this past week as a country. According to our count here at NBC News, one million Americans have now died of Covid. In addition, the World Health Organization announced this past week that 15 million more people than had been counted appeared to have died during the pandemic than would've under normal circumstances. We're starting to see countries underreported some deaths and we're starting to get the reality check now. So previously, six million more were estimated to have died than what we first thought. It's a reminder that even as we learn to live with Covid, millions remained at risk and do so now. Keep that in mind, keep them in mind, and we'll be right back.
CHUCK TODD:
We are back. Data Download time. Democrats are hoping the news about Roe will energize their base. And they have their eyes on younger voters, and here's why. Among younger voters, three quarters say abortion should be legal in all or most cases. That's 20 percentage points more than the share of voters over 65 who share that view. That large gap matters because those groups of voters do not usually turn out in the same numbers, especially when it comes to the midterms. Let me show you. Look, here's younger voters in a presidential year. They are, they become almost one in five voters. But in midterm years, you can see here, young voters down to the 12, 13%. Even in that good Democratic year of '18, younger voters didn't quite get out. Meanwhile, those 65-plus voters are far more likely to go to the polls, no matter the election. The question now is: Could a Supreme Court opinion that overturns a nearly 50-year precedent in Roe be enough to alter that picture and motivate a younger electorate? We may just about to be finding out come November. When we come back, Donald Trump's endorsement pushed J.D. Vance to victory in Ohio's Republican Senate primary. It was a win for Mr. Trump. The game's about to get a lot harder as May rolls on. Stick with us.
CHUCK TODD:
Welcome back. Literally the day of the leak, or on the eve of the Ohio primary, we got the Supreme Court leak. Too early to really have an impact on what voters may have done, but we did find out that Donald Trump's endorsement of J.D. Vance did help him win. So, Sara Fagen, is Donald Trump literally or figuratively in charge of the Republican Party these days?
SARA FAGEN:
Well, I think that it’s somewhere in between. In a case like Ohio, where it was a pretty crowded primary where none of the candidates were particularly defined, he's going to have a huge impact and he’s going to make – his endorsement is going to be a big deal. You know, in a case like Georgia where you have an incumbent governor who’s had a long track record, it's not having as much of an impact. So I think on a case-by-case basis probably net accrues to the president's favor in terms of these endorsements, but he's not going to get them all.
CHUCK TODD:
You know, Sarah Longwell I think put it pretty well, Kimberly. "Mr. Trump has already won. Whether Mr. Trump's handpicked candidates win or not, the Republican field that will emerge from these primary battles will be overwhelmingly Trumpy." I think that's a fair take.
KIMBERLY ATKINS STOHR:
I think that's right. I think one thing we see that is powerful is Trumpism. Regardless of whether Trump himself pronounces the candidate's name correctly, you have in someone like J.D. Vance, just a mini-Trump, someone who is trying to espouse this populist message even though he himself as the messenger doesn't represent that. That's Donald Trump to a tee. And the candidates that are able to capture that and replicate it the best in this particular Republican Party are going to do well, whether Trump endorses them or not.
CHUCK TODD:
We know some Senate Republicans, Ali, were hoping that Trump's endorsements would not do so well. You know, all right, so he's not going to do well in Georgia. And Dr. Oz looks like a coin flip at best.
ALI VITALI:
Yeah.
CHUCK TODD:
But I don't think his grip's weakening.
ALI VITALI:
Yeah. I mean, so let's say he goes 50/50 over the course of the next month. Whether or not you consider that a win is kind of through the eye of the beholder. I think for Senate Republicans and Republicans in Washington the goal has always just been make sure he's not endorsing the candidate who can't ultimately win. And so I think that's going to ultimately come out in the wash. But I do think that the larger question is: In a place like Georgia where his endorsement probably is not going to have the swing that he wants, Trump's vendettas have never been party loyal. They have always been just whatever his vendetta personally is. And I think that's where the concern stems from for Republicans in Washington, is, "You're not there for the party." And frankly, a lot of these Republicans that he's endorsing, they don't have deep party ties either. And so you could end up with Republicans coming to Washington who are much more indebted to Trump than they are to the people who are in control of the Senate here.
CHUCK TODD:
You know what he hasn't done, Josh, to keep it sort of in your wheelhouse? He hasn't really commented on the leaked document. You would think he'd say, "Look what my judges did. I told you they'd overturn Roe." And now, maybe he's waiting to make sure it actually happens. But the lack of taking credit, his political antenna to me is telling him this is – he's a little nervous.
JOSH GERSTEIN:
Yeah, you do wonder if he's seeing some of this polling that clearly other Republicans are seeing, saying that this issue may be a loser for them in the fall. And I also wonder in some of these races where Trump's nomination or his endorsement has made the difference, whether when you get to the general election you're going to see candidates try to do a straddle, sort of like Glenn Youngkin did, right, where he was sort of semi-accepting Trump's energy but didn't quite want to appear with him. Can they maintain that straddle all the way to November or –
CHUCK TODD:
That’s why it makes David McCormick to me the most interesting candidate in Pennsylvania. It’s like, boy, if you're the Democrats now, you don't want McCormick to get out of here because he's both been running as a Trumpy candidate but suddenly he gets to say, "Trump didn't like me."
SARA FAGEN:
That's right. Yeah, David McCormick is a compelling candidate for a lot of reasons. He's an exceptional person. But the – look, you're right. Many of these Republicans are going to have to walk that line. And they're going to have to do what Glenn Youngkin did, which is to say, "I like a lot of what Trump did. I like his policies, and I like his energy. But I'm my own person, and I have my own ideas." And that's why these incumbents fare so well in these endorsement battles, because they do have their own identity.
CHUCK TODD:
Kimberly, another thing we saw this week: Very quietly, President Biden debuted his – a new message of sorts, trying to not say the word "Trump" but say, "Hey, this MAGA crowd." And he tried to lump abortion rights and some of these other things in there. It tells me their – the White House is looking for a new message here. What did you make of it?
KIMBERLY ATKINS STOHR:
Yeah. No, I think that that's absolutely right. They’re seeing these – we're six months out of the midterms. They're seeing how big the consequences are here, and they are trying to edge with this messaging a little bit, trying to broaden it out. We'll see how effective it is. But the fact that the message is still being developed--
CHUCK TODD:
I know.
KIMBERLY ATKINS STOHR:
– this late in the game --
SARA FAGEN:
Of course they want a new message, 8.5% inflation, a disastrous withdrawal of Afghanistan.
CHUCK TODD:
Ali, is there anything that's going to get passed?
ALI VITALI:
In the Senate?
CHUCK TODD:
Yeah.
ALI VITALI:
I mean, it doesn't really look very likely. They might be able to do this competition bill that could help with supply chain issues. "USICA" is what it was called. It's gone through a million namings since then. But at the same time --
CHUCK TODD:
Both the House and Senate have passed a version of this bill. Of course this bill's going to pass.
ALI VITALI:
Of course. That's the only one that I think has an ultimate path. But in terms of these energizing issues that we're talking about, specifically on abortion, no, these are going nowhere fast. And I think that's actually why you're making this turn away from Trump to Trumpism and MAGA, because it's better to do the broad messaging than it is just on him.
CHUCK TODD:
That's all we have for today. Thank you for watching. I hope you do enjoy your Mother's Day. Don't forget to call her if you haven't yet. We'll be back next week because if it's Sunday, it's Meet the Press.