The decision by the United States Supreme Court to overturn the landmark 1973 Roe v. Wade decision is certainly sending shockwaves across the country. It’s one of the most passionate topics, and one of the most divisive, in all of American politics.
CBS News Chief Washington Correspondent Major Garrett joined the Chad Hartman Show on WCCO Radio to break down the historical nature of this decision. Garrett, who spoke to Hartman after having just left the U.S. Supreme Court, says this ruling breaks a long precedent of the court not changing previous decisions.
“So in my lifetime, the court has never retrenched an established right under the Constitution, but it did so today,” says Garrett.
Garrett is now the author of five books on American political history. His latest, “Mr. Trump's Wild Ride: The Thrills, Chills, Screams, and Occasional Blackouts of an Extraordinary Presidency”, comes out this fall.
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Here is the back-and-forth on what this ruling means historically and the issues facing both the Federal and state governments going forward.
Hartman: What does this mean to you from an historical perspective?
Garrett: This will change America's orientation toward the court. It will change the underlying questions about this deeply complex issue. And there will be those in the audience who say, no, it's not complex major. It's a very simple issue. Its murder and it shouldn't happen. And there's no right to it in the Constitution, Roe is wrongly decided, and we have rebalanced law and justice in America. I understand that perspective, but this is a deeply complicated issue with lots of ramifications.
The effects of the Supreme Court decision today will bring all of those complexities into state legislatures, into city councils, county governments. We are now going to have a genuinely real, no longer abstract, debate in this country about all of the things that are implied by what the court tried in 1973, to render a permanent judgment on a zone of privacy. That includes access to abortion that is legal everywhere in the United States that no longer exists.
The country changed though. It was in 1973 by Roe vs. Wade, it will be changed again because that which was found in the Constitution then has been erased. Two generations of Americans who understood that was constitutionally defined, right now live at a different legal landscape. It's as big as it gets.
Hartman: Some are picking and choosing when they say the Constitution doesn't verbatim say it. But there are other areas where you've agreed where the court has tried to extrapolate what the founders of our country wrote in the 1780s?
Garrett: Precisely. And even they said in their debates about the Constitution, this cannot possibly be the final word. This is a document that orients the governed to the people and puts the people in power to elect or deselect people. And then as the country evolves, as the country's understanding of various issues changes, there is a process by which it can be changed. And the Supreme Court plays a role in that.
Now look, Supreme Courts have been accused of over-enlarging rights in this country, quite separate from the right to privacy under which Roe versus Wade found a constitutional right to abortion. Before that there are many critics of the Miranda decision that said, if you are in police custody, you have a right to be read your constitutional rights. And among the enumerated rights is, you don't have to tell the police anything.
Now, when that decision was handed down, many people in this country said that's not in the Constitution. Guess what? It isn't. But it's now it’s a cherished, understood, and fundamental, right that everyone agrees has enhanced our ability to protect our rights as citizens and to put the police on guard that you can't beat confessions out of people. Okay? So that's not in the Constitution either. Neither is interracial marriage. Neither is gay marriage. Neither are a lot of things.
The entire orientation of the commerce clause. What does the commerce clause allow or disallow? For a while before the great depression and FDR, the Supreme Court said it didn't allow much at all. Now we have a much broader interpretation of how the Federal Government can regulate interstate commerce. These things have evolved. And if you say to yourself, it's not in the text, therefore it doesn't exist. Then you're actually asking yourself to be brought back to a country that was much smaller, much less advanced, much less integrated with the world. And oh, by the way, will never exist again.
Hartman: That means nothing else applies legally outside of the 14 principles of law we have just written up?
Garrett: I've talked to people who opposed abortion rights for a very long time. I've been to many rallies. I've covered lots of Republican politics. I don't believe that they are what those I saw at the court today who support abortion rights describe as fascist threats. I don't believe that at all. I believe they have a profound sense that there is something wrong in this country when there is, from their perspective, no protection for the unborn. And they believe that lots of children who had every right to life in this country were aborted. And that's a crime. Some even use the word genocide. I believe they hold those beliefs profoundly. And from either a religious or even whether it's not even a religious context, they profoundly believe that. And I understand that. To cite one example, the Texas Republican Party approved the platform just last weekend that said there is no right to anything after the moment of fertilization. That's it? Who decides when fertilization has occurred? Do we have a fertilization police? I don't want to live in a country with fertilization police!
What the court did in Roe versus Wade was to say, we have state issues to protect the unborn at various stages. What was said today by the court is no stages. States can do whatever they want and if they want to ban it from the moment of fertilization and the political support is there to do that, they can do that no matter how much that tramples on rights, not only assumed to exist, but that ought to exist, as a matter of human rights.
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Hartman: A huge, essential part of Donald Trump’s campaign against Hillary Clinton was, I'm going to appoint people to overturn Roe V. Wade. That happened.
Garrett: I'm very proud of the chapter I wrote in my book that explained in detail how, when he was a candidate, Donald Trump had a meeting in Washington with a cadre of very conservative leaders. Among them, Leonard Leo, the head of the Federalist Society.
At that meeting, Trump said I want to have a list of nominees to suggest if I get the nominations that I will put on the Supreme Court. And he appointed Leonard Leo in the Federalist Society to come up with that list. And the reason, and this was a shrewd move on then candidate Donald Trump's part, he wanted that list to be put together is to signal two things. A, he prioritized the court and to identify conservatives that anyone who was making up their mind about whether to support Donald Trump or not, and cared about the court, cared about this underlying issue of Roe, would know from that list he would be picking only people who would overturn Roe.
That's the Trump aspect to this. And it's a crucial part of his campaign, his ascendancy to the nomination. And when many Republicans were trying to decide whether or not they should support Trump, for them the future of the Supreme Court was the deciding factor. So it's a really important part of this whole story.
Hartman: Now, a man who is a Catholic, who at times has had people of his own faith question where he stands on Roe V. Wade, Joe Biden is dealing with this.
Garrett: For Joe Biden, like many Catholics, early in his career he was uncomfortable with Roe. Didn't talk about it a lot for a good period of time throughout the eighties and the early nineties. There were identifiable self-described, pro-life Democrats. Bob Casey, the Casey in the 1992 Supreme Court case, was the Governor of Pennsylvania. His son is in the Senate. Now he was a pro-life Democrat. But, there are very few, very, very few, and almost nonexistent. The party has become uniformly supportive of abortion rights. And Joe Biden is the leader of that party, has risen to that leadership position, essentially agreeing with that but in much less vocal ways than many of his contemporaries. He doesn't wade into this issue very often.
History has now forced him to wade into it and he's going to have basically two approaches. He can use the power of the Federal Food and Drug Administration to make chemical abortion, meaning abortion pills, more readily available. And he can use Federal protections to guarantee, as he said in his speech today, movement across state lines to obtain an abortion.
Now, just think about that for a second. A President of the United States had to give a speech today saying he would guarantee the rights of Americans to move across state lines. Because they're now in theory jeopardized. When I said how complicated this is going to be in its lived reality, that's one of the things I'm talking about. Are we really going to inspect one another at airports? How are we going to regulate?
Major Garrett is the host of "The Takeout" which airs Sundays at 5:00 p.m. on News Talk 830 WCCO.
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