Huge Day at the Supreme Court: Left Freaks Out Over Abortion

CLAY: Major, major day in the Supreme Court as Mississippi’s abortion law is being debated, earlier this morning, just now finishing up. We will be going to Washington, D.C., to talk to Fox News’ legal correspondent, Shannon Bream, who was in that courtroom — and, by the way, the Supreme Court is back open to allow people to witness these arguments in person.

Buck, you listened to much of what went on in this argument earlier today. I have been paying a great deal of attention to this as well, trying to read the tea leaves as to where we might be headed and what the overall impact of this decision could be. We are scheduled to have the governor of Mississippi on, Tate Reeves, at some point this week to discuss this case in particular.

But I want to play a couple of cuts to contextualize where we are in terms of the debate surrounding Mississippi’s law — which would not permit abortion after 15 weeks — and how it fits into the framework surrounding Roe v. Wade but also Planned Parenthood v. Casey, which are the frameworks which have allowed abortion to be the law of the land from a federal perspective.

Here is Justice Sonia Sotomayor asking how the Supreme Court will survive if Roe v. Wade is overturned and the court is seen as political.

SOTOMAYOR: Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? If people actually believe that it’s all political, how will we survive? How will the court survive?

ATTORNEY: The concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the Constitution, in text, structure, history and tradition, and that carefully goes through the stare decisis factors we’ve laid out.

SOTOMAYOR: Casey did that.

ATTORNEY: No, it didn’t, Your Honor, respectfully

SOTOMAYOR: Casey went through every one of them. You think it did it wrong. That’s your belief. But Casey did that.

CLAY: Okay. So, Buck, my prediction — I’ll just lay it out and obviously we can discuss this in great detail because it’s a major story. I think what’s going to end up happening months from now when this decision actually comes down is they are going to uphold the Mississippi law and they are going to do it, however, within the existing framework of Casey and Roe, make it even more tortured and difficult to understand the rulings.

You heard stare decisis mentioned there. For people who are not familiar with that phrase, that’s basically the idea that you need to respect existing precedent, which John Roberts has referred to a great deal. so that’s why I think this is the most likely outcome. Mississippi law is permissible, but they are not going to overturn Roe v. Wade or Casey. What do you think, based on your reading and listening of the arguments today?

BUCK: The argument for the pro-life side was going well today, overall. Just start with that. The people who were listening in would have caught some of this, but I spent from the gaveling in into we had to come on air, Clay, listening to the back-and-forth, and there were only really a couple of areas that it seemed like in this case — obviously the Biden administration side — the solicitor general really dug in on. You mentioned stare decisis. Just precedent, right? Stare decisis, fancy latin term?

CLAY: Latin term for precedent, basically.

BUCK: Kavanaugh, I think, did a very good job, among others, essentially — that’s right, that Brett Kavanaugh, the guy that they tried so desperately to keep off the Supreme Court’ we all remember that — saying, “Well, yeah, precedent is precedent until it’s not, until all of a sudden you decide that same-sex marriage needs to be legal with Obergefell.”

And then beyond just that, there is also the stains on the Supreme Court’s history — Korematsu, Dred Scott — where clearly it was just wrong, right? It was a moral and legal wrong. So that’s not really the argument that I think the left wants to believe that it is in something like this where it hasn’t played out the way that they wanted it to, right?

Initially, one of the arguments — and this came up in favor of Roe and then Casey was, “Well, this will cool things down, right? This will kind of take this so that everyone knows what the rules are.” No, it hasn’t. In fact, if anything, I think it’s made the issue even more divisive because the position here of the conservatives on the court is that there gonna have a federal ban on abortion.

There could be conservatives on the court, if they went… I think, by the way, you were right, and I don’t know what if we go to what odds would be on this or if there really is such a thing, but the money from a lot of conservative legal minds I know lines up with what you said, which is they’ll let the Mississippi law stand but they won’t necessarily go all the way in and say, “Look. Roe is bad law,” or Roe and Casey, in essence.

Parts of them are bad law. So the precedent issue, I think, didn’t go very well for them, and then also viability came up a lot. What is the viability line? And this has played out over a long period of time now, decades, where how is that really even a legal concept? For one thing, viability — meaning when can a fetus survive outside the womb — that changes.

It is variable and, if anything, has been moving earlier and earlier in the gestation process. So how we’re even pretending that that’s really…? And that came up very clearly in some of the arguments. I think Thomas, you have all these different… You can’t see them, which actually you realize how much it hurts your memory of these things.

But you don’t see… I think Thomas talked about it. Alito might have brought it up. But the viability issue, I think, is another place where… “‘Cause you even have leftists, Clay, who will say, “That’s pretty arbitrary,” and so if it’s arbitrary, why not send it back to the states and allow them to make their own distinctions about this? Which, I mean, you could see it, right? You could see a 5-4 bombshell.

I don’t know what better word to use — a legal avalanche decision here — but if you’re listening to the merits today, I think that it was a very strong showing for the anti-abortion, pro-life side of the equation. I think they’re feeling pretty good about the case that was made today before the court.

CLAY: All right. Here’s what else I would say. I want to play this because — not surprisingly — temperatures are all ratcheted up. The left wing in this country is losing its mind. This is on MSNBC, I believe, Joy Reid’s show, and abortion activist Lizz Winstead said people who support abortion restrictions also support — what do you think? — white supremacy. Listen to this argument.

WINSTEAD: The lower courts — the Fifth Circuit, the most conservative court in the land — twice said, “You know what? This isn’t gonna pass muster,” and the state of Mississippi and the extreme conservatives there went to the Supreme Court to say, “We want a hearing,” and they got one. And that should make everyone take a pause, right?

And so folks learning about who are the legislatures — who are the governors in your state, who are the people who are running solely on this issue, because so many of them are — and looking the intersections of those people and white supremacy and how they feel about guns and how they feel about all this stuff. And I think that it’s all the intersectional and we need to pay attention closely.

BUCK: It does make me think, Clay — which, first of all, when they’re talking about white supremacy in the context of abortion, you go back and look at Margaret Sanger, the founder of Planned Parenthood. You go back and look at the early philosophy of the pro-abortion side and there is a clear —

CLAY: There’s a lot of eugenics.

BUCK: — eugenics thread in their thinking, a lot of the, “Well, society won’t want” fill in the blank, kids that are unwanted in a whole different range of categories. And it’s horrific. When you actually know the history of Planned Parenthood you understand why this is an organization, it’s really shocking that it’s been able to exist in the American mainstream and become so powerful.

There’s really nothing in the Democrat Party as an issue where I think you’ll be as outraged by, when it comes to your own side — you’ll upset people as much — as if you’re a Democrat who breaks from them on the issue of abortion. Planned Parenthood will go after you. There’s a ferociousness that it enforces its dictates with.

So we’ll have to see if — finally, I think — the court decides that creating a constitutional right out of thin air is a stain on the court. They keep talking about, “How will the institution survive?” I remember even hearing a very left-wing law professor in college. They call it “law and jurisprudence” in my school, talking about how, “Look. It’s not good law.” He would say, “I think Roe was great, but not good law.”

CLAY: That’s right.

BUCK: Everyone kind of knows that and so saying, “Oh, but … but … but.” No. Actually, this never should have been what the court did. They were wrong on the implication over the long-term. That’s why the 50 years matters so much ’cause we’ve seen what’s actually happened. And for conservatives out there, I think this is a moment where you gotta ask yourself: If we don’t conserve life, what are we conserving?

One of my frustrations has been in conservative media now for over a decade, I guess, Clay — time flies — is people always say, “You talk about abortion’ they turn the dial. You talk about abortion; they change the channel.” We’re not conserving life! I don’t really know what we’re even showing up to do as a conservative in the media. This is a central issue, and finally it seems there may be some real headway toward justice.

CLAY: A couple things here. One, calling people who oppose abortion white supremacists, given that the overwhelming numbers from a per capita basis of abortions are occurring are minorities, right? So it’s a straining of white supremacy on an incredible level to argue that white supremacy is actually protecting minority life, right, for that argument. The other thing I would say here, Buck, is there is a lot of histrionics on this argument. I think it’s important to put in context what would happen. I don’t think that they’re going to overturn Roe v. Wade and Casey.

BUCK: They might.

CLAY: But if this court did… They could. If they did, it would not end abortion in the United States.

BUCK: That’s right.

CLAY: It would return this decision to state legislatures and governors, and many states would say, “Abortion is not legal.” Twelve of them instantaneously — mostly red states — would say, “You can’t do it in our state.” But all of the blue states arguably would be able to make abortion even more lenient than it might be now. So it doesn’t end it. There’s this argument out there, “Ohh, my God! You’ve never… Abortions would never exist in the country anymore! It would change everything.” No, no. Every state would have the right to make their own decision.

BUCK: But the states, blue states, that would continue with this, wouldn’t have the backstopping — not just on a legal but on a moral level — of “the Supreme Court has said this is a constitutional right.” States can do a lot of things. States actually constitutionally can do a lot of things that I think are — and we’re seeing some of this with covid — anti-liberty, doing things that don’t make sense. But they do have a lot of powers. But a state that takes it upon itself to, let’s say, make abortion legal at any stage of the pregnancy or gestation?

CLAY: Whatever it might be yes.

BUCK: That would be one that would then have to have people looking at themselves in the mirror and say, “Why does Texas outlaw this? Why does Mississippi not allow this at all?” It changes for a lot of people the moral certainty that they want to have about this as a constitutional right which, look. Whatever people think of the issue, that it’s a constitutional right is a flat absurdity. I think that’s what started to come across today a little bit to people who are really paying attention to the oral arguments.

CLAY: No doubt — and I think, Buck, it also adds to the anger because you’re not able to do it through a legislative process whatever your perspective is on abortion. This is a political issue that should be resolved at individual state levels.

BUCK: Scalia’s position — always Scalia’s position, by the way; he was always very clear on this — was that the states get to determine this. That’s the actual constitutional order of the situation.

CLAY: I think he’s right on that.