On Thursday afternoon, MSNBC host Katy Tur put forth a strategy session for how a Democratic-controlled Congress might legalize abortion nationally in response to the U.S. Supreme Court overturning Roe v. Wade. Just three days earlier, she similarly did her party for her fellow progressives by encouraging viewers to vote Democratic to help fight global warming.
Tur began by recalling President Donald Trump wants to fill the late Ruth Bader Ginsburg's seat on the Court "as quickly as possible," and, after a clip of the President arguing it would be important to have all nine justices if there were a problem with the election, Tur then brought up abortion rights as she warned:
That may be true, and it's likely the President will fight the results of the election if he loses, but Supreme Court appointments are for life, and a 6-3 conservative majority would have repercussions well beyond the 2020 election, which may be another reason the President is so eager to fill the seat so quickly to galvanize single-issue, anti-abortion voters who want to see Roe v. Wade overturned...Let me add the caveat that the threat of overturning Roe v. Wade animates Democrats as well, so it could be a double-edged sword for the President.
After bringing aboard Russian collusion promoter Ben Wittes of the Brookings Institution, she asked about the possibility of Congress "federalizing abortion" if Roe v. Wade were struck down: "I asked you this question the other day, and you had a really interesting answer. Is there a legislative fix for federalizing abortion that would be hard to challenge at the Supreme Court if it turned out that there is a 6-3 conservative majority?"
After Wittes argued that it would be more legally sound for Congress to use the Commerce Clause in the Constitution as a basis for legalizing abortion nationwide, a fascinated Tur followed up:
So it's not necessarily an argument that it's a woman's body, and she has the right to do what she wants with that body. You're talking about writing this into law by using something that doesn't necessarily come to top of mind, which is the commerce clause, and saying this is about transactions, and I guess using equipment that you buy over interstate lines that they transport and you can't get involved in it. That's a really complicated and potentially convoluted way to get this done. Is it possible with Congress for them to do that?
As the segment wrapped, Tur suggested that Democrats might want to try the idea if they win control of Congress (with Wittes touting the Democratic promises to abolish the filibuster):
TUR: I should add, this would be contingent on Democrats keeping the House, retaking the Senate, and winning the presidency. Ben Wittes, thank you so much for joining us and --
WITTES: And probably blowing up the filibuster, too.
TUR: -- on top of that as well. Thanks for the thought experiment. I found it to be very interesting --
WITTES: Thank you.
TUR: -- and a potential work-around for Democrats if they want to pursue it.
This episode of MSNBC Live with Katy Tur was sponsored by Jeep. Their contact information is linked.
Below is the relevant transcript from September 24.
MSNBC Live with Katy Tur
September 24, 2020
2:52 p.m. EasternKATY TUR: President Trump says he wants to fill the vacant seat left by Justice Ginsburg as quickly as possible in case he has to challenge the results of the election.
PRESIDENT DONALD TRUMP [on 09/23/20]: I think it's very important. I think this will end up in the Supreme Court, and I think it's very important that we have nine justices, and I think the system is going to go very quickly.
TUR: That may be true, and it's likely the President will fight the results of the election if he loses, but Supreme Court appointments are for life, and a 6-3 conservative majority would have repercussions well beyond the 2020 election, which may be another reason the President is so eager to fill the seat so quickly to galvanize single-issue, anti-abortion voters who want to see Roe v. Wade overturned. Joining me now is Ben Wittes. He's the editor-in-chief of Lawfare and a senior fellow at Brookings. Let me add the caveat that the threat of overturning Roe v. Wade animates Democrats as well, so it could be a double-edged sword for the President. Ben, though, I asked you this question the other day, and you had a really interesting answer. Is there a legislative fix for federalizing abortion that would be hard to challenge at the Supreme Court if it turned out that there is a 6-3 conservative majority?
BEN WITTES, LAWFARE: I think the answer to that question is: Probably, there is. You know, I think any law Congress passed that would federalize in statute rather than in constitutional law, abortion rights nationally would certainly face constitutional challenge from conservatives, and there are the traditional position of, for example, Justice Scalia, is the federal government has no business in this area at all, and so I think you would certainly see challenges.
That said, I do think it is doable by Congress, and the traditional congressional power to regulate interstate commerce is exceptionally broad, and, you know, if Congress were to say that no state can interfere with the right of a woman in consultation with her doctor to procure a financial -- essentially a financial transaction to terminate that pregnancy, I don't see how that wouldn't fit comfortably -- particularly if it were worded carefully and cautiously -- I don't see how it wouldn't fit comfortably within the Supreme Court's commerce clause jurisprudence.
Now, would six justices be faithful to that jurisprudence? You know, that's anybody's guess. But I think Congress, under the Court's precedence, has a lot of leeway to pass a national abortion rights protection statute. That would not, of course, solve the many other problems that liberals and progressives have with the Supreme Court becoming dominated by conservative appointees, but I do think the national abortion issue is addressable if pro-choice legislators were in control of both houses of Congress.
TUR: So it's not necessarily an argument that it's a woman's body, and she has the right to do what she wants with that body. You're talking about writing this into law by using something that doesn't necessarily come to top of mind, which is the commerce clause, and saying this is about transactions, and I guess using equipment that you buy over interstate lines that they transport and you can't get involved in it. That's a really complicated and potentially convoluted way to get this done. Is it possible with Congress for them to do that?
WITTES: Actually, I think it's the simplest way to get this done, which is why I mentioned that. [TUR LAUGHS] Look, there are a lot of people -- and I realize that for people that are not steeped in constitutional law, the theory that I just laid out is pretty silly-sounding, and it sounds much more sensible to say, "Hey, Congress legislates a right to choose, a la what Roe v. Wade said, you know, many years ago." The problem with that is that, it --- if the Supreme Court were to hold that that right does not exist, it's not clear where the authority --
TUR: Yeah.
WITTES: -- comes for Congress to legislate it whereas Congress has an undoubted power to regulate commercial transactions and commerce generally. And so this is actually, I think, a cleaner way to do what amounts to the same thing.
TUR: I should add, this would be contingent on Democrats keeping the House, retaking the Senate, and winning the presidency. Ben Wittes, thank you so much for joining us and --
WITTES: And probably blowing up the filibuster, too.
TUR: -- on top of that as well. Thanks for the thought experiment. I found it to be very interesting --
WITTES: Thank you.
TUR: -- and a potential work-around for Democrats if they want to pursue it.
