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  • The Supreme Court could overturn Roe v. Wade. Don’t buy these right-wing excuses that it’s not a big deal.

    Blog ››› ››› SHARON KANN & JULIE TULBERT


    Melissa Joskow / Media Matters

    Following the announcement of Supreme Court Justice Anthony Kennedy’s retirement, media have been speculating about the possibility of a nominee selected by President Donald Trump casting the deciding vote overturning Roe v. Wade.

    While some mainstream outlets have rightly warned about the likelihood and negative impacts of overturning, or even further hollowing out, Roe’s protections, many conservative outlets and figures deployed a variety of excuses either to suggest that Roe is not at risk or to downplay any potential negative effects such a move would have. But make no mistake -- the Trump administration and its anti-abortion allies haven’t been shy about their goal: making abortion inaccessible or even illegal in the United States, no matter what the consequences.

    In 2016, then-candidate Trump said in response to a debate question about whether he would overturn Roe: “Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.” Previously, in July 2016, then-vice presidential nominee Mike Pence said that he believed that electing Trump would lead to the overturning of Roe and that he wanted to see the decision “consigned to the ash heap of history where it belongs.” In return, anti-abortion groups have also supported the administration -- a fact underscored by Trump’s keynote address at the anti-abortion group Susan B. Anthony List’s (SBA List) gala in May.

    Despite the administration’s promise, conservative media and figures are deploying a number of inaccurate excuses to either deny or downplay the severity of the threat to abortion rights with another Trump-appointed justice on the court:

    1. Claiming that abortion rights are safe because Roe is precedent, and none of the current justices will vote to overturn it.

    In the aftermath of Kennedy’s announcement, some conservative media argued that abortion rights are not threatened because the sitting justices -- including Chief Justice John Roberts and Trump’s previous nominee Justice Neil Gorsuch -- would be reticent to overturn precedent.

    For example, an editorial in The Wall Street Journal argued that because “the Court has upheld [Roe’s] core right so many times, ... the Chief Justice and perhaps even the other conservatives aren’t likely to overrule stare decisis on a 5-4 vote.” Similarly, during a June 27 appearance on Fox Business Network’s Lou Dobbs Tonight, conservative lawyer Alan Dershowitz claimed that Roe is safe because “true conservatives also follow precedent,” and therefore any conservative appointee would not vote to overturn it. Short-serving former White House Communications Director Anthony Scaramucci said it is unlikely that Roe would be overturned because “the court recognizes that there are certain fundamental principles that are in place and certain presidential precedent-setting principles in place." He concluded, “I know there are conservatives out there that want it to be overturned but I just don't see it happening."

    It appears highly unlikely that the new Supreme Court would keep Roe intact. Slate’s Mark Joseph Stern wrote that Kennedy’s retirement “ensured” that Roe will be overturned -- even if it ultimately will “die with a whimper” as the Supreme Court would allow anti-choice lawmakers to foist “extreme regulations on clinics, outlawing abortion after a certain number of weeks, or barring a woman from terminating a pregnancy on the basis of the fetus’ disability or identity.” As Stern concluded, “the constitutional right to abortion access in America is living on borrowed time.” This argument was also echoed by The Daily Beast’s Erin Gloria Ryan who contended that one more Supreme Court vote against abortion would mean that “the conservative minority in this country will have the power to uphold laws designed to force pregnant women into motherhood.” During the June 27 edition of MSNBC’s Deadline: White House, host Nicole Wallace explained that the impact of Kennedy’s retirement means “actually talking about a future generation growing up with abortion being illegal again” and “young women and men taking the kinds of risks that a generation now hasn't had to consider.”

    2. Arguing that Roe is “bad” law, and therefore a Trump nominee would only be correcting judicial overreach.

    In other instances, conservative media have argued that Roe is "bad" law because the constitution doesn't include a right to abortion. By this logic, they contend, a reversal of precedent is inconsequential because the new nominee would merely be helping correct previous judicial overreach.

    In an opinion piece for The Sacramento Bee, The Daily Wire’s Ben Shapiro argued that Roe v. Wade is a decision that was rendered “without even the most peremptory respect for the text and history of the Constitution,” but that “pleased the Left.” An improved Supreme Court, according to Shapiro, “would leave room for legislatures – Democrats or Republicans – to make laws that don’t conflict with the Constitution.”

    In National Review, Rich Lowry similarly said that Roe “is, in short, a travesty that a constitutionalist Supreme Court should excise from its body of work with all due haste.” Lowry concluded that Roe “has no sound constitutional basis” and implied that it should be overturned because it is an embarrassment for the court.

    The Federalist’s Mollie Hemingway claimed on Fox News’ Special Report with Bret Baier, “Even people who are pro-choice recognize that it was a poorly argued judicial decision.” She also said that Trump does not need to ask the judicial candidates about Roe v. Wade as “so many people regard it as such a poorly reasoned decision.” Fox News contributor Robert Jeffress also said on Fox News’ Hannity that Trump doesn’t need to ask about Roe because “there is no right to abortion.” Jeffress continued that though abortion is “nowhere in the Constitution” there is, however, a constitutionally protected “right to life that has been erased for 50 million children butchered in the womb since 1973.”

    But, as legal analyst Bridgette Dunlap wrote for Rewire.News, these claims that Roe is bad law are part of a conservative tactic to invalidate abortion rights more broadly. She explained: “In order to portray abortion rights as illegitimate, conservatives like to argue—inaccurately—that the Court legalized abortion in Roe v. Wade by inventing a right to privacy that is not grounded in the Constitution’s actual text.” Instead, she noted, Roe is based on the idea that “using the force of law to compel a person to use her body against her will to bring a pregnancy to term is a violation of her physical autonomy and decisional freedom—which the Constitution does not allow.”

    In addition, Roe is not just an important acknowledgement of the right to legally access abortion care -- even if states have already chipped away at the accessibility of that care. As Lourdes Rivera of the Center for Reproductive Rights explained in the National Law Journal, overturning Roe would impact the right to privacy and mean “uprooting a half-century of judicial decision-making, with profound consequences for our most cherished rights and essential freedoms.” Lawyer Jill Filipovic similarly wrote for Time magazine that “if Roe is done away with under the theory that privacy rights don’t exist, this could mean that there is no constitutional right to birth control, either.” In addition, she said, “cases that came after Roe, including Lawrence v. Texas, which invalidated a Texas law that criminalized sex between two men, were decided on similar premises — and could be similarly imperiled.”

    3. Claiming that abortion would not be completely outlawed because regulatory power would merely be “returned to the states.”

    A common argument by conservative media -- and in some cases, Trump himself -- is that an overturning of Roe would merely return abortion regulations to the states and not completely outlaw the practice.

    For instance, according to Fox News guest and constitutional attorney Mark W. Smith, even if Roe were overturned, it wouldn’t “outlaw abortion” in the United States, it would just allow “states and voters [to] decide what to do about abortion.” Fox News commentator Andrew Napolitano also made this claim, saying the “worst case scenario” is that if Roe “were to be repealed or reversed, the effect would be the 50 states would decide” their own abortion regulations. This inaccurate claim was also made during segments on CNN and MSNBC. During a June 27 appearance on CNN Newsroom with Brooke Baldwin, CNN legal commentator and former Virginia Attorney General Ken Cuccinelli argued that “all overturning Roe v. Wade does is” give the regulation power “to the states.” The Weekly Standard’s Bill Kristol made a similar claim on MSNBC Live with Velshi and Ruhle, when he argued that overturning Roe would merely “kick [abortion regulation] back to the states.”

    In reality, sending abortion regulation “back to the states” would functionally outlaw abortion access across large parts of the country. As Reva Siegel, a professor at Yale Law School wrote for The New York Times, returning the issue to the states would be disastrous because already, “27 major cities are 100 miles or more from the nearest abortion provider, and we can expect these ‘abortion deserts’ in the South and the Midwest to spread rapidly” if states are given free reign. New York magazine’s Lisa Ryan similarly reported that currently “there are only 19 states in which the right to abortion would be secure” if Roe is overturned.

    This landscape could easily worsen with anti-abortion groups turning their attention more directly to legislation on the state level rather than the federal level. As HuffPost’s Laura Bassett noted, a number of “abortion cases are already worming their way through the lower courts” that could further entrench abortion restrictions in a number of states. In 2016, ThinkProgress explained what a world before Roe looked like: “Wealthy women were able to access safe, though illegal, abortions, but everyone else had to risk their safety and sometimes their lives, and doctors had to risk going to jail.”

    4. Casting blame on abortion rights supporters for “overreacting” or trying to “attack” any Trump nominee on principle.

    Another common reaction among conservative media has been to cast blame back on abortion rights supporters. In this case, right-wing media have attacked supporters of Roe for “overreacting” to the potential loss of abortion rights, and accused others of opposing Trump’s nominee not on facts, but on principle.

    For example, during the June 27 edition of Fox Business’ Making Money with Charles Payne, guest and attorney Gayle Trotter argued that abortion rights supporters were just “trying to scare people” in order to “defeat the president’s nominee.” Federalist Society Executive Vice President Leonard Leo also echoed this argument during a June 27 appearance on Fox News’ Special Report with Bret Baier. According to Leo, “The left has been using the Roe v. Wade scare tactic since 1982, when Sandra O’Connor was nominated. And over 30 years later, nothing has happened to Roe v. Wade.”

    Similarly, on June 29, Trump supporters and YouTube personalities Lynnette Hardaway and Rochelle Richardson, popularly known as Diamond and Silk, appeared on Fox News’ Fox and Friends to discuss potential replacements for Kennedy. During the segment, Diamond asked why Democrats were “fearmongering” and “going into a frenzy” before knowing the nominee or their position on abortion. After interviewing Trump on Fox Business about his thought process for nominating Kennedy’s replacement, Maria Bartiromo said on the Saturday edition of Fox & Friends Weekend she believed that “all of this hysteria” about a potential overturn of Roe was being "a little overdone” by the left.

    Pro-choice advocates are not “overreacting” to potential attacks on the protections afforded by Roe. As journalist Irin Carmon explained on MSNBC Live with Craig Melvin, Kennedy’s retirement “is the point that the conservative movement, that the anti-abortion movement, has been preparing for for 40 years” by “taking over state legislatures and passing laws that are engineered to chip away at the abortion right.” Carmon said that even with Kennedy on the bench, “access to abortion, and in many cases contraception, was a reality [only] on paper already.” Now, “it is disportionately Black and brown women who are going to suffer with the regime that is going to come forward.” Attorney Maya Wiley similarly argued on MSNBC’s The Beat that overturning of Roe would mean “essentially barring a huge percentage of women from huge swaths of the country from access” to abortion.

    5. Claiming that there’s no public support for Roe or abortion access.

    Polling shows a large majority of Americans support the outcome of Roe. But some right-wing media personalities have said that such findings ignore other polling about Americans’ supposed support for restrictions on later abortion.

    For example, The Weekly Standard’s John McCormack argued on Fox News’ Outnumbered Overtime that the claims of support for abortion access are inaccurate because there is a “great misunderstanding about Roe v. Wade” and the impact it has on abortion restrictions and that “there is actually pretty popular support for second trimester regulations.” This talking point has been used elsewhere, such as by the Washington Examiner and anti-abortion outlet Life News, in an attempt to discredit perceived support for Roe.

    The argument deployed by McCormack has also frequently been used by right-wing outlets in the past -- despite the disregard such an argument shows for the complexities involved in abortion polling. As Tresa Undem, co-founder and partner at the public-opinion research firm PerryUndem, wrote for Vox, most “standard measures” that are used “to report the public’s views on abortion ... don’t capture how people really think” about the issue. In contrast to right-wing media and anti-abortion claims, polling done by Harvard T.H. Chan School of Public Health and Hart Research Associates shows that support for later abortions goes up when people realize that abortions in later stages of pregnancy are often undertaken out of medical necessity or for particular personal circumstances.

    As Trump prepares to announce his selection for the Supreme Court on Monday, July 7, right-wing and conservative media will only offer more of these excuses to downplay that Roe v. Wade is firmly in the crosshairs.

  • As Vintage Trump Pushes Conspiracy Theories And Uses Racial Slurs On CNBC, NBC Touts “A New Donald Trump”

    Blog ››› ››› TYLER CHERRY

    NBC Today host Savannah Guthrie commended Republican presidential nominee Donald Trump for not attacking Democratic presidential nominee Hillary Clinton over her recent pneumonia diagnosis, touting his so-called “restraint” as evidence of “a new Donald Trump.” Minutes later, the candidate engaged in vintage Trump behavior on NBC’s sister network CNBC, hurling racial slurs and outlandish conspiracy theories and once again flouting the media’s tendency to declare a Trump pivot.

    Trump and his surrogates plan “to refrain from commenting” on Clinton’s pneumonia diagnosis, as Bloomberg reported. For Guthrie, “this is a new Donald Trump.”

    NICOLLE WALLACE: Let me just say what I think the glaring, banner-worthy breaking news is this morning. Donald Trump hasn't tweeted about [Hillary Clinton's pneumonia diagnoses]. Donald Trump hasn't raged against her. Donald Trump hasn't called her a name. We are seeing, to me, the most dramatic 24-hour transformation of her opponent since he began running for president. I can't wait to see what his first comments are and if he's able to show restraint. That will mark, really to me, the most dramatic development in this campaign so far.

    SAVANNAH GUTHRIE (CO-HOST): Well, Nicolle, ask and ye shall receive. I've been told he did at an appearance this morning on another network and said, "I hope she gets well soon," and looks forward to seeing her at the debate. So Mark, this is a new Donald Trump.

    Right after Guthrie lapsed into the media’s persistent tendency of proclaiming a Trump “pivot,” the presidential candidate appeared on CNBC and lobbed his typical racial insults, speculated about corruption at the Federal Reserve, and suggested the presidential debates will be rigged, defying any semblance of a “new Donald Trump.” Here are a few examples of the vintage Donald Trump who appeared on CNBC just after NBC declared him “new”: 

    He Called Sen. Elizabeth Warren “Pocahontas”

    Trump referred to Sen. Elizabeth Warren (D-MA) as “Pocahontas,” a racist slur he has used repeatedly on the campaign trail. Right-wing media have adopted Trump’s line of attack against Warren.

    BECKY QUICK (CO-HOST): Just last week Senator Elizabeth Warren was working with a group called Fed Up where they’re trying to put constraints on the Fed and get their arms around it a little more. I wonder in a Trump administration would you be trying to put more constraints on the Fed as well?

    DONALD TRUMP: What I would want to do is have a policy -- I wouldn't go by what Pocahontas wants you to do, because her agenda is obvious. I mean, she's a disaster. She’s also one of the least effective senators in the United States Senate. Nobody really understands that, but she's done nothing.

    He Claimed Fed Chair Janet Yellen Is Manipulating Interest Rates “Because She’s Obviously Political”

    Trump baselessly accused Federal Reserve Board Chair Janet Yellen of keeping interest rates “at zero because she’s obviously political and she’s doing what [President] Obama wants her to do,” even though the Federal Reserve operates independently of the White House. 

    JOE KERNEN (CO-HOST): Did you come to the conclusion that maybe [interest rates] can't stay at zero forever, and what do you think [the Federal Reserve] should do in September?

    DONALD TRUMP: Well it's staying at zero because she's obviously political and she’s doing what [President] Obama wants her to do and I know that's not supposed to be the way it is. But that's why it's low, because as soon as they go up your stock market’s going to go way down most likely, or possibly. And don't forget, I called Brexit. I did a lot of calling and what they are doing is, I believe it's a false market. Because money is essentially free.

    [...]

    I think they are keeping them down and they will keep them down even longer and any increase at all will be a very, very small increase, Joe, because, you know, they want to keep the market up so that Obama goes out and let the new guy, whoever that new-- let's call it the new guy, you know, OK, because I like the sound of that much better. But that the new person becomes president, let him raise interest rates or her raise interest rates and watch what happens to the stock market when that happens, OK, because you have no choice. The people that were hurt the worst are people that saved their money all their lives and thought they were going to live off their interests and those people are getting just absolutely creamed. In other words, the ones that did it right, they saved their money, they cut down on their mortgages, they did all of the things they did everything exactly right, and now they are getting practically zero interest on the money that they worked so hard for over 40 years. I mean, those people have really been -- you can almost say discriminated against. Now the interest rates are kept down by President Obama. I have no doubt that that's the reason that they are being kept down.

    He Claimed Clinton Is “Gaming The System” And Rigging The Presidential Debates

    Trump speculated that Clinton and her allies are “gaming the system” to try to rig the presidential debates. He said they’re accusing Matt Lauer of being “nice” to Trump during a forum he hosted between the two candidates, so that “the new person is going to try and be really hard on Trump just to show the establishment what he can do.” Trump floated the idea that there should be “no moderator” for the debates, and instead it should be “just Hillary and I sitting there talking.” Trump has baselessly asserted several times that various aspects of the election are or will be rigged.

    JOE KERNEN: I want to talk about the debates and how you are prepping for those, whether you like the moderators that are selected.

    [...]

    DONALD TRUMP: As far as the debates are concerned, the system is being gamed because everybody said that I won the so-called forum that your group put on, but they all said I won and that Matt Lauer was easy on me. Well he wasn't. I thought he was very professional, I have to be honest. I think he has been treated very unfairly. But they all said that I won. And what they’re doing is they’re gaming the system, so that when I go into the debate I’m going to get -- be treated very, very unfairly by the moderators.

    [...]

    They are saying about how Matt Lauer was nice to Trump. He wasn’t nice to me. He was tough on me. He gave me tough. I answered them better than she did. The fact is that they are gaming the system, and I think maybe we should have no moderator. Let Hillary and I sit there and just debate. Because I think the system is being rigged so it's going to be a very unfair debate. And I can see it happening right now because everybody was saying that he was soft on Trump. Well now the new person is going to try and be really hard on Trump just to show the establishment what he can do. So I think it's very unfair what they are doing. So I think we should have a debate with no moderator, just Hillary and I sitting there talking. 

  • Media Hype “Optics” In AP Report On Clinton Foundation, While Admitting There Is No Evidence Of Ethics Breaches

    ››› ››› NICK FERNANDEZ & JARED HOLT

    Media are attempting to scandalize a report from The Associated Press that revealed that “[m]ore than half the people outside the government who met with now-Democratic presidential nominee Hillary Clinton while she was secretary of state gave money ... to the Clinton Foundation,” calling the report “breathtaking” and “disturbing,” because it “looks bad,” and the “optics” and “perceptions” are problematic, despite the fact that their programs also note that “it wasn’t illegal,” and there was no quid pro quo. The focus on the “optics” of the situation rather than the facts has led some in media to criticize the reporting, and explain that “consumers of the media [should] think twice about whether or not the narrative” media are pushing “fits ALL of the facts.”