0 >> from the beginning, proportion's forces have seen this issue is a question of freedom of an individual's choice. the freedom to have an abortion is now legal in every state. >> and here we, are 49 years later, more than a lifetime ago for many of us. back in december, justice sonia sotomayor asked this, quote, well this institution survived the stench that this creates in the public perception that the constitution and is reading aren't just political acts? i don't know how it will be possible. and cool. an unprecedented leak involving one of the most divisive issues in this country leaving a nation with many with more questions than answers on this unsettling monday night. but as our guest said, for those of you are watching, who are planning, or have appointments for abortion services tomorrow, another those appointments hold, you are safe as of tonight, nothing's changed. i don't that know wish you all a very good and a very safe night. from all of our colleagues from across the network of nbc news, thanks for staying up late with us, and we'll see you in the end of tomorrow. , and we'll see you in the end of tomorrow. as a supreme court has voted to overturn rights. according to an initial draft majority opinion written by justice samuel alito, circulated inside the court and obtained by political, the supreme court has voted to strike down the landmark roe v. wade decision. the draft opinion is a full-throated unflinching repudiation of the 1973 decision which guarantee federal constitutional protections of abortion rights. and also, a subsequent 1992 decision, planned parenthood v. casey, which largely maintain the right. a leader writes, roe was egregiously wrong for the start, we hold that roe and casey must be overturned, it is time to e heed the constitution, and return the issue of the abortion to the elected representatives, which means returning to the states. and more than two dozen states, there are what are called triggered laws, which would immediately render abortion a crime immediately upon the supreme court issuing such a ruling. as josh gerstein reports along with alexander ward, the immediate impact of the ruling would be two and a half century guarantee of a federal protection of abortion rights, it would allow each state to decide whether to respect or ban abortion rights. it's unclear whether there will be changes to the draft, it is reportedly drafted in february. political received a copy of the draft opinion, from a person familiar with the court 's proceedings, in the mississippi case. the abortion case. along with other details supporting the authenticity of the document, the draft opinion runs 98 pages, the document is completely citations to previous decisions, books, and authorities, and includes 118 footnotes, the parents and timing of this draft, is consisting with court practice. it is a rare breach of supreme court secrecy, and tradition around its deliberations. >> joining us now is josh gerstein, he's a senior legal affairs reporter for politico, he's one of the best legal reporters, and legal reporter explainers, he broke the story, books, and authorities, and includes 118 footnotes, the parents and timing of this draft, is consisting with court practice. it is a rare breach of supreme court secrecy, and tradition around its deliberations. >> joining us now is josh gerstein, he's a senior legal affairs reporter for politico, he's one of the best legal reporters, and legal reporter explainers, he broke the story tonight along with alexander ward. thanks for coming on tonight, after such short notice, i know that you did know four minutes ago you wouldn't be on tv talk to me about this. >> no problem, rachel, happy to join you. >> i'm not going to pressure you, of course, on your sourcing here. but i want to press you on your confidence in your sourcing. obviously, this is a very unusual, if not completely historically unprecedented leak. a document that purports to be the draft majority opinion of the supreme court, before they have issued any such ruling. can you tell us about your confidence in the authenticity of the document? >> well, we're very confidence in the authenticity of this draft majority opinion rachel both in the way that we obtained, it and other information that we got that supports its authenticity, and makes us believe, -- it was circulated in the court as a first draft by justice alito, in february, dated february 10th. so it is possible there vincent and sit changes since then, but our best understanding of where the court stood at that time, which is about two and a half months after arguments in this federal mississippi abortion case. >> and you report, josh, and forgive me if i get any of these details wrong, i am learning this isn't talking about it, which is always dangerous. but you report that the court majority here is established, but there are at least in the initial conference between the justices after the arguments, there are five votes on justice alito's reported side here, and the only ambiguity -- justice roberts will make it a 63 decision or a 54 decision, if he chose to decide with the more liberal members of the court. what can you tell us about your reporting, in terms of the numbers here in terms of how the two sides align and whether that may still be a matter of some fluidity? >> well, it's our understanding from a person familiar with the proceedings that justice alito believes, that the court has five justices that are essentially aligned with his opinion that he has written. it's just a withering takedown of the roe v. weighed precedent. it pulls no punches at all, it's pretty brutal, and in the way it structured it needs to be that way, because of the way alito confronts this issue of court precedent, stare decisis is the legal term. something has to be really really, wrong if they want to overturn it, and that's the case the justice alito makes year. there is still some ambiguity about where chief justice john roberts stands, as many people noted that the oral arguments in the beginning of december, it sounds like he was finding a way maybe to approve this mississippi law, which is a 15 -week abortion ban, without completely ripping down the roe v. wade precedent. our understanding is that, you know, most of his republican colleagues want to go ahead and take down roe v. wade. that said, where the beginning of may here, and his final decision likely won't be published until the end of june, perhaps, even the beginning of july. so, it's fair to say that this is a situation that is unresolved at this point, and i can't promise you that various things may not change between now and late june. >> josh, in terms of the substance of this opinion, as written, i get news draft the majority opinion. with the caveat that this is a historically unprecedented lead of what appears to be a draft majority opinion from the court before any ruling was issued, with the caveat you just described as if this might go through any changes, maybe use substantial changes before we see the ruling from the court is published later this year. with all those caveats intact, look at justice leader wrote here, how does this comport with expectations in this case? obviously, as you are just describing, the leanings of the justices on this matter. i think, to realize minded observers were clear even before oral arguments, and certainly clear thereafter. there is also still common wisdom, that the justices would try to soft pedal this a little, that they would try to undermine roe, and effectively remove the protections of roe, without a sort of 21 gun salute which is what this appears to be, at least in terms of the way that you have been able to describe justice alito's thinking. is that a fair assessment of this? that this is more of a bludgeon, when it was perhaps expected to be expected to be something more of a subtle approach? >> it's definitely a swing for the fences draft majority opinion. he's really holding nothing back here, justice alito. and you know, i know with the conventional wisdom was, rachel, that maybe the court would try to soften the blow, but after those arguments, there is precious little indication of that for many of the republican appointed justices, other really than chief justice roberts. and another reason to think that this may have full support from all the republican appointed justices except the chief. if you go through the opinion, you'll find echoes in their of views that other members of the court have stated on previous occasions. there are parts of this opinion, that sounds a lot like justice clarence thomas, when you read through it on a few occasions the word abortionist appears in this opinion. that's where the justice thomas was taken to using in recent years, and that most of the other members of the court don't typically use. and there's another passage that seems to cater to some comments that justice amy coney barrett made, at the oral arguments about the views on unwed pregnancy out of wedlock. births, and women's rights have evolved since roe v. wade was handed down in 1973, so it really seems like alito is trying to cobble together a majority. people can also look at it, and we think how much does it do to address the concerns of shea chief, roberts and the credibility of the court and the -- to the chiefs concerns. which also supports the notion that, maybe he is not expecting to be part of this opinion. josh, in terms of the likely impact of a ruling if it doesn't its final form look like whatever parted and publish tonight. if we had our republican controlled house senate republican controlled senate, any a republican lawyer house, is there any line in those ruling, as you read it, that would prevent the legislature and the president from establishing a new law that full out, full on banned abortion in its entirety in every state in the country in every instance? >> well, it's a draft decision, and it doesn't really get into the issue of what the federal government's power i think would be in this area. so i think it certainly leaves that open as a possibility. it might be other obstacles to that, like the legislative filibuster we still have, at least for the time being in the united states senate. but, there are points which illegal tries to suggest that this won't bring all the scenery down. if we move away from abortion to other privacy base rights, such as contraception, rights like gay marriage, he does try to wring fans this in, and say all we are talking about is abortion. he mentions that several times. and he suggests that it shouldn't be stretched and other areas. that's that, i'm old enough to know that the court many times has said, don't try to apply our opinion on x to the situation why, because different. and, yet it often does get apply that way. but there's no question, he's trying to keep this confined to the issue of abortion. >> and, of course, that's telling in itself, right? to be willing to, say this is just about abortion, it's not about anything important. don't worry. tells you a lot about that, that frame of mind of behind people who would make this kind of a change. let me just ask you about one last piece of this, josh. since we've been on the, air since we received our reporting, tonight, since you published, we, on my show, have contacted four former clerks for supreme court justices. all of, whom uniformly told us that the document that you published tonight appears to be a legitimate work product of the court, meaning it just matches and, form in style, and texture, that kind of product that they as clerks were used to seeing as a draft majority opinion. that highlights in itself, i think, the unique nature of this reporting that you have done. and this leak. and i wonder if you have any reflection on what it might mean for the credibility of the court, for the legitimacy of the court, for a drafts majority opinion to have made its way into your hands. this is something that is never happened before in the history of the court. and, as a court observer, and somebody who understands how the court fits into our politics, what sort of impact do you think this will have on the court itself? >> well, i mean, there have been leaks out of the court before. perhaps not at this magnitude, but we've all gone kind of used to own these big decisions such as obamacare, such as this abortion decision to -- there's a nuanced reading of editorials that appeared in different places. places like the wall street journal editorial page where you can often see indications that maybe the court is moving one way, i'm conservatives aren't happy about it. you see that kind of dialogue. but, never accompanied by an actual opinion. so, i do think that this is groundbreaking. and it does take the court into new territory. it will certainly be very interesting to know what chief justice john roberts thinks about this, even if he doesn't agree with this opinion. what does he think about whether this causes the court to be viewed as a political institution? by some people. that is what we're gonna have to see plays out over the next couple of months. as this continues to resonate towards the final decision addendum. >> all right, and the importance of chief justice roberts opinion on matters like that is not just what he thinks as a person, and how it affects them personally, it's that the court is effectively a self regulating body. it's just his own set ethics on standards. and, if this is going -- of this is gonna shake the foundations of the court and its perception and its role in politics, his opinion will be more important than anybody else is by a considerable margin. josh goldstein, senior legal affairs reporter for political, you will always be the reporter broke the story. whatever else happens in your life and everything else they've done in the past, i know this is a really big deal. and i really appreciate you being here tonight with us, thank you. >> thanks so much, rachel, take care. >> all right. i will just mention, let me restate what it is that we are talking about here. the reporter you just saw for political, along with his colleague alexander wart, as just broken this remarkable story at political dot com. supreme court has voted to overturn abortion rights, draft opinion shows. the fact that a draft opinion from the united states supreme court is in front of us is itself, as far as we know, an unprecedented thing. there have been leaks in the past, as justin mentioned, about what's happened during discussions among the justices. about what may or may not have gone down in the room behind where the justices sit on the day's. we're also for the our sketches when we sit down and conference to discuss what happens. we have had descriptions of those discussions in the past. we have never, as far as i know, had a written, in this case, 90 plus-page draft a majority opinion released of the public from a reporter for a ruling was actually issued. we don't know anything about what's the sources, josh, you just heard him speak in his own words about why he and his colleagues and his editors are confident and the sourcing of this matter. it's obviously an earthquake, and i will tell, you just and motto how confident we are in the story, we've spoken with for a former supreme court clerks. just in the last few minutes, will say that they agree with josh and his colleagues in politico that this looks like a product from the court. whether or not it has been or will be revised before it's ultimately published. the bottom line here is that this is -- this would appear to be the day that -- i was born in 1973, with the year that roe v. wade was passed. in my entire sentient life, women have been talking about the day that this would come. and that roe v. wade would be overturned, and that the united states will become a country where abortion was treated as a crime. and it was the government, it was the state that was allowed to decide whether or not women give birth. it's the state that is allowed to force women to bring unwanted pregnancies to term, even if they, for the world's most -- greatest our lattice reasons, don't want to do it. putting the government in control of women's lives in this way. this change is something fundamental about who we are as a country and we are as a culture, and we are as men and women. and, if this changes coming, not as a sort of feathered in set of reforms designed ultimately to undermine the right, or make a less available like we've seen, even over the course of this year's republican controlled states have been advancing these newly aggressive policies. the courts have been letting them do it. but, if instead, they are just knocking it, out an abortion is going to be illegal in every state that will make that happen on their own terms, or as the washington post reported just this morning, with this headline, the next frontier for that portion movement. a nationwide ban. washington post literally reported this morning that antiabortion groups and their allies and their congress have been meeting behind the scenes don't plan a national our strategy, including a push for a strict nationwide ban on abortion if republicans retake barr in washington. that was the news this morning, they're working on a nationwide wedding band to make it a crime. coast to coast, everywhere in the country, as soon as they've got power. as chris just noted a moment ago. but to have that pair tonight with this draft opinion saying that the supreme court is about to clear the way just for that, means that we're on the precipice of becoming a very different country. and our daughters and granddaughters are living in a very different world. we'll be right back with much more on this breaking story, stay with us.