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Transcript: Roe v. Wade Overturned: Sen. Tina Smith (D-Minn.)

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MS. CALDWELL: Good morning. My name is Leigh Ann Caldwell. I am an anchor here at Washington Post Live and also coauthor of the Early 202 newsletter.

Welcome to this really important program. Today I'm joined by Senator Tina Smith, a Democrat from Minnesota, on the heels of this Supreme Court decision that overturned Roe v. Wade and now puts the question of abortion back to the states.

Senator Smith, thanks so much for joining us today.

SEN. SMITH: Well, thank you, Leigh Ann. I'm really‑‑I'm sorry about being with you today in so many ways, but I'm very glad to have a chance to have this conversation with you.

MS. CALDWELL: I'm so glad you're here. We have so many questions, and for our audience, if you have questions too, feel free to tweet us at @PostLive, and we will try to get some of those in here.

In the intro, we heard a little bit about your reaction, outrage, anger, still a little bit of shock. Can you talk? It's been two days now, three days since this happened. What are your thoughts after being able to process it for a few days?

SEN. SMITH: Well, you know, long before I ever came to the United States Senate, I worked at Planned Parenthood, and I came to understand firsthand how people make these decisions about whether or not to continue a pregnancy. And I saw people make decisions with such strong judgment, such good moral judgments, and so what I am thinking about a lot are the people who were in abortion clinics on Friday, women who had made a decision about what they needed to do, what was the best decision for them, had put together the money, had figured out how to get to the clinic, you know, worked on transportation issues, and if they had children already, how to make sure their children were taken care of. They made their decision. They were there at the clinic, and then they were told, "This decision is no longer yours. You don't have the right to make this decision."

The implications of that for women all across this country is just so dramatic, and it's hard to kind of unpack and understand what's going to happen. So I have to say that over these last few days, I've been thinking a lot about all of these people who are ready to make this decision, had made the decision, and now no longer have that freedom.

For these folks, this issue is not a political issue. A lot of the women that were in clinics on Friday didn't even know that the Supreme Court was going to be handing down decisions. They were just trying to figure out how to live their lives, and now they can't make decisions about their own lives. And what do we do about that? And the challenges that puts for women is really just dramatic.

You know, as I've been saying all weekend, the Supreme Court has spoken, but they will not have the last word, and that is what I think these next few months are going to be about. And this is going to take a long time to undo.

MS. CALDWELL: Yeah. You've teed up my next question perfectly, so what are you going to do? What are Democrats in the Senate going to do?

SEN. SMITH: Well, look, what we have to do is we have to elect people to the Senate that will support putting the protections of Roe v. Wade into law. This is‑‑the election is what? How far away is the election? I've lost track today. It is very close.

MS. CALDWELL: Four and a half months.

SEN. SMITH: Yeah, four and a half months. Thank you. The election is four and a half months away. What we need to do, I think, first of all, we need to call on the Biden administration to do everything they can, use all the powers that they have to protect reproductive rights where they can, but we have to understand that that will not be enough. Their powers are limited.

We are looking to states right now to reinforce what they will do, and we can talk about what's happening here in Minnesota, which is an oasis, an island in the upper Midwest where abortion is still legal.

And then in the United States Senate, we have to make the case that this didn't just happen. This happened because Republican senators and Republican presidents. Six‑‑five out of the six Supreme Court justices who were part of this majority decision were appointed by presidents who had not won the popular vote. We have to hold Republicans accountable for doing this, and that is‑‑and elect Democrats to the Senate so that we can fix this problem.

MS. CALDWELL: So I want to ask about that specifically. You mentioned, you know, some of those justices were appointed by presidents who didn't win the popular vote. So are you and perhaps other Democrats in the Senate or in Congress discussing changing the process for the confirmation and nomination of a Supreme Court justice?

SEN. SMITH: Well, what I'm talking about is the need for broad democratic reform here, starting with reforming the filibuster, reforming the rules of the Senate so that a minority in the United States Senate can't stop us from putting into place laws that the vast majority of Americans want. The protections of Roe v. Wade are broadly popular in this country, yet the United States Senate is unable to act on that view of Americans because of Senate rules. I'm talking about that.

I'm talking about looking at reforming the Electoral College or at least having some sort of a law around national popular vote so that presidents who are appointing Supreme Court justices have won the popular vote, and of course, I talked also about court reform and what we need to do to make the court more accountable.

But, fundamentally, the most important thing, not‑‑I think it's we can't be too distracted by that right now because the most important thing is winning elections at the state level and at the federal level so that the people who are making decisions reflect the views of Americans, and that has to happen. That's what this election is going to be about. I believe that Roe is going to be on the ballot this November, and the contrast between Democrats and Republicans could not be more clear.

MS. CALDWELL: Until the election, which as we said was four and a half months way, should the Senate take any sort of votes on, you know, protecting contraception, protecting access to IVF, things like that, that the Supreme Court has not yet ruled on?

SEN. SMITH: Well, I think that the strategy about what votes we bring up in front of the Senate is‑‑you know, there's a lot of conversation about this. I want to just note that I think the difference between Democrats and Republicans on the core question about whether Roe‑‑whether the constitutional right to abortion is real, should be protected by the Constitution, the difference couldn't be more clear. We've taken votes on that. People have seen the differences. Republicans did not vote to put the protections of Roe into law. They are on the record.

Ans so are there other things that we can do in a Senate where you have to have 60 votes right now in order to pass anything? I'm not sure that I see a path towards being able to pass anything, which is why I‑‑which is why I am so focused on the elections.

MS. CALDWELL: Are you worried that contraception is something that's on the table or IVF or, in some states, the morning‑after pill already will be?

SEN. SMITH: Yeah. I mean, I'm terribly worried about that, and when you read the decision on the Dobbs case, which came out on Friday, and the argument for why Roe should be overturned, the basic argument was that you have to look at what the views and the beliefs and the history was back at the beginning of our country and follow what those folks thought when women's freedom was so severely curtailed. And if you believe them that they think that that's why Roe should be overturned, it's hard not to wonder and believe that they are laying the groundwork for overturning other really fundamental constitutional values, like the protections in Griswold for married couples to have access to contraception, the protections in Obergefell around marriage equality, the protections in Lawrence around consensual sex amongst adults in private. And, in fact, Clarence Thomas sort of invited those challenges. So, yes, I'm worried about that. I'm deeply worried about that.

And, also, which is salient, if you look at what is happening probably right now in state legislatures around the country, there is this unleashed momentum to push this further and at the state level for sure and at the federal level. The leader, minority leader, Mitch McConnell said that if Roe was overturned, a national abortion ban would be on the table. That is the conversation that's happening right now that we have to fight at the ballot box.

MS. CALDWELL: Yeah. And, you know, I know you said there's conversations about this happening, but do you think the Democrats should put Republicans on the record on some of these issues?

And just to remind our audience, after‑‑a couple months ago, after the leaked Supreme Court decision‑‑or the decision was leaked, the Senate voted on codifying Roe, and that failed with 50 Democrats and zero Republicans supporting it. But, you know, on these other issues like we've been talking about, contraception and IVF, should you put Republicans on the record on this ahead of the midterms?

SEN. SMITH: Well, as I said, I think that the question‑‑I can see some real value in putting Republicans on the record on some very poor values, but my view of it is that the Republicans are already on the record when it comes to the rights to protect‑‑when it comes to protecting this fundamental freedom of people to be able to decide for themselves about their own body. They are on the record, and that's the reality. That's the framework for the decisions that voters are going to be making this fall, and I don't really think that any particular votes on the floor of the Senate are going to change that.

What is going to change and what I want to see as change is changing who is making the decisions in the Senate in 2023 and '24 and '25.

MS. CALDWELL: You know, one more question on the Senate. I know that Senator Susan Collins, a Republican, Senator Lisa Murkowski, a Republican, have been working with Senator Tim Kaine, a Democrat who is Catholic and, you know, has, you know, voted for abortion rights before, but this is an issue that is close to his heart. What‑‑on some compromised language to codify Roe v. Wade, is that something that you would support, at least that effort, and do you expect something like that to be moved to the floor this summer?

SEN. SMITH: Sure. Well, so this‑‑it's a good question, and here is how I look at this. There's two issues. One, if there was compromise legislation that was developed, I would have two questions about that legislation. The first is can we be confident that that legislation is going to protect the fundamental freedoms of Roe v. Wade and that it will stop state legislatures from passing that kind of draconian bans or severe limitations on access to abortion care that we're seeing all over the country. So that's the first question. Will it protect us from that activity at the state level now that Roe has been overturned?

And the second question I have, is there 60 votes for that legislation? That, I think, is the‑‑kind of the foundation question. I don't believe that there are 60‑‑there are 10 Republicans that would vote to put the protections of Roe v. Wade into law, and that brings me back to the fundamental difference between Republicans and Democrats on this. Republicans, most Republicans, with maybe one or two exceptions, are dramatically out of step with where Americans are when it comes to this belief that people should be able to decide for themselves about whether or not to terminate a pregnancy up until viability, and that we shouldn't have draconian barriers on women making those decisions when they're faced with life and health decisions. So that, again, is, I think, the fundamental question.

Could it pass? I don't really see that that would ever happen, and would it truly protect abortion rights given what state legislatures are doing around the country?

MS. CALDWELL: Mm‑hmm, great. And then you wrote an op‑ed over the weekend with Senator Elizabeth Warren, and you had one idea that I really want to dig into, and that was asking President Biden to open, perhaps, abortion clinics on federal lands. Can you explain that a little bit more?

SEN. SMITH: Well, what Elizabeth and I wrote in our op‑ed, we were‑‑and amongst the many things that we said we need to do between now and the election, we said that the president‑‑we asked‑‑we urged the president, as we've done privately, to use all the powers that he has in order to protect access to abortion care around the country. We talked about the possibility of a‑‑the president declaring a public health emergency. This would be another way for the full legal authority of the federal government to be brought into play as we try to protect women's health.

I would just note that the United States has some of the worst disparities in maternal mortality of any country in the world, and those disparities for Black and brown women are‑‑have dramatic impacts on their life expectancy. So, with the loss of access to abortion care in roughly half the states and the impact that that's going to have no women, we're saying let's take a look at what kind of public health emergency this is going to create and address that in all the ways that we can.

But, again, we have to be realistic here. There is no magic solution that the president has access to that will make this problem go away. This is going to take a lot of hard, hard work to undo the damage that the Supreme Court has done, and the executive branch is not going to be able to do it all on its own.

MS. CALDWELL: Do you think that the federal lands idea could happen relatively soon, at VA clinics perhaps, and could it happen on tribal lands as well?

SEN. SMITH: Well, of course, tribal‑‑tribal nations are sovereign nations.

MS. CALDWELL: Yeah.

SEN. SMITH: They have‑‑they decide for themselves, as well they should, through their trusted treaty powers, what to do on tribal lands. So there's that situation.

We have situations with what kinds of health care is available to people who receive their health care through the Veterans Administration, and I want to just thank my colleague, Tammy Duckworth, who has worked so hard on this, and that is a‑‑I think that is something that is very important for us to consider.

And then the other thing that I'm very focused on is what can we do to shore up access to abortion care in states where it is still legal, including on federal land, but also, like, for example, in my home state of Minnesota where the governor, Tim Walz, ran‑‑was running for reelection, made an executive order clarifying that he will use his executive power to preserve access to abortion care for people who live in Minnesota and for people who will come to Minnesota from other places.

This is something the president has talked about as well, that freedom to travel, a fundamental freedom that we should have in this country, that we should not allow states‑‑state legislatures to try to infringe upon.

And if I could just mention one other thing, the administration has also been very clear and strong on protecting access to medication abortion in states where abortion is still legal. This is very important. Medication abortion is the 50‑‑over 50 percent of women who choose abortion are using medication abortion. It's been safe. It is used in the first 10 weeks of pregnancy. It's effective for over 20 years, and we need to protect that access in places where abortion is still legal.

MS. CALDWELL: On medication abortion, how do you do that? Is that the federal government's responsibility? Is that the states who are allowing abortion to protect that right of‑‑to mail that to states who do not allow abortion? How is that cross‑jurisdictional situation going to be worked out?

SEN. SMITH: Yeah. Well, so, on Friday, the attorney general and the administration said that the administration is committed to enforcing the FDA guidelines around the use of medication abortion, which those guidelines are very clear. They say that medication abortion can be prescribed without an in‑person visit in almost all cases, and that medication abortion can be taken in your own home. It can be mailed to you.

Now, the Supreme Court overthrowing Roe and abortion being illegal in, you know, South Dakota and not in Minnesota, that means, fundamentally, that you're going to have a patchwork of laws that will be extremely confusing.

I have passed‑‑I've introduced legislation that would put those FDA guidelines into law. Now, I realize that there is not votes in the Senate to get that legislation passed, but I think it's really important to make sure that people understand that medication abortion is available, and it is safe and it is effective in the early stages of pregnancy. And it's going to provide a very important stop‑‑you know, an avenue for people to get an abortion, their access.

But, I mean, Leigh Ann, to your question, if I live in South Dakota where abortion is banned and I want to access medication abortion, the law would say that I need to travel to Minnesota to receive that medication abortion and take it there, or I would be criminalized based on what the legislature and the Republican governor in South Dakota have said.

MS. CALDWELL: So how are the states, you know‑‑how is the Democratic Party going to organize in half of the states around the country? I think Democrats, you know, control less than half of the states around the country. I believe it's less than 20 as far as the legislature is concerned. So, you know, how does this effort take place? What are you going to do?

SEN. SMITH: Well, the first thing I would say is that this is an organizing effort that has to happen in every state, not only in states where abortion has been banned or severely curtailed, and if I could, let me just give you an example of that.

Here in Minnesota where we have statewide elections happening, a governor and attorney general, abortion is protected by a Minnesota supreme court decision, but it matters who appoints justices to the Minnesota supreme court. That right could go away if we don't have people at leadership levels of the Minnesota government, including the governor, who are ready to protect those rights. So it's going to be an issue here in Minnesota where the difference between the Republican and Democratic governor‑‑Republican candidate and Democratic governor could be not more clear, and so it will be an organizing issue here, just as it will be in other states where the politics are flipped.

What we have to do is we have to go out and organize. We have to raise money. We have to have conversations with people, and I just want to say there's been a lot of conversation among some of the Republicans saying, "Oh, people don't care about this. What they care about is, you know, inflation and the economy," and my answer back to that is people vote with their whole bodies, not with just their economic brain or their physical health brain or their mental health brain. And I believe that this is going to be a galvanizing issue, and you can see it in the early polling data that has been coming out since the Roe decision and think‑‑I'm just looking at my--I think, nearly two‑thirds of Americans believe that abortion should be legal in all or some cases, and, you know, nearly 60 percent of Americans think that what the Supreme Court has done here is wrong. That is going to be a big issue in November.

MS. CALDWELL: For so many elections, Democrats have said‑‑Democratic voters have said that abortion is an important issue, but it has never been an issue that they have gone to the polls. You also have an economy that is struggling for some, high inflation, high gas prices, high cost of food. So how‑‑do you really think that abortion is going to be on top of minds of voters in four and a half months still?

SEN. SMITH: Well, so I just think that, fundamentally, voters have a pretty good understanding of what's going on, and I want to just tell you a story about this. The very first election that I ever got involved in, I was a young mother. I was‑‑got involved in a local state legislative race. It was a district that had been represented by a Republican for a long time, and I was working for the challenger. And we went out and we organized, and we had conversations with people. What was the issue that we talked about? We talked about abortion. Nobody would have thought that abortion was an issue that was uppermost on the minds of those voters, but they didn't know that the person representing them at the state legislature was antichoice. And we went out and we organized where? In apartment buildings where people were‑‑where renters were living, and people said, "Oh, renters won't vote. They don't care about their community because they're transient." We won that election. We won that election by half a point, and that district has been represented by a Democrat ever since.

Nobody would have said in that moment that abortion, that access to reproductive rights was the driving issue in that election, certainly not the Republican who lost that race, but we ended up‑‑because we had conversations with people at the door and we organized, we won, and I believe that that's a model for how and why we're going to win in 2022.

MS. CALDWELL: Some Democratic strategists, though, are worried that Democrats have been saying vote, vote for us and we will make things better. They did vote. Democrats control government right now, and they're really not able to do anything on this issue of abortion. So how are you addressing that voter apathy, and do you think that that voter apathy among Democrats, among the Democratic base is real?

SEN. SMITH: So, you know, I was‑‑I just fundamentally push back on that argument by some Democratic strategists, which is basically some version of the Republicans won, you lost, it's your fault. And, you know, it's like a blame‑the‑victim sort of strategy here that I think is just fundamentally wrong.

The responsibility for what has happened is purely on the shoulders of Republicans who have been fighting to overturn Roe v. Wade, appointing judges to the Supreme Court that would overturn Roe for decades, and so the most important thing is to not sort of turn on ourselves here but to make it clear who's responsible and who's accountable and then carry that message forward.

The question of Democratic apathy, I'm just not‑‑I just don't believe it. I think that this‑‑and I think actually there's some data. Although polling these days, who knows what the heck that all adds up to? I think that there is‑‑there is intensity around this issue that we have to‑‑that we have to capture, and you know. You cover the Senate and you cover Congress extremely well. You know that with a 50‑50 Senate, we don't actually fully control the Senate, and that's why we need to get at least two more Democratic Senators and keep the House in order to actually accomplish what the president ran and won on.

MS. CALDWELL: Do you think the Democrats and the women's groups and those on the left were really fully‑‑did they really think that this day would ever come, and have you all been prepared enough for it?

SEN. SMITH: I think that‑‑you know, when the draft decision came out and we read what Justice Alito was initially planning on saying, I do believe that there was a moment of sort of shock that the blatantness of this decision was just right out there, and then when we all saw the final decision on Friday, I mean, I think it's fair to say that a lot of people were sort of stunned, that it was just, you know, so blatantly rolling back 50 years of precedent, particularly when‑‑I mean, I never believed it, but particularly when these new justices had, you know, promised that they were going to uphold‑‑they appreciated the value of precedent and stare decisis and all of that, all of that.

I also think that‑‑because I get the question you're asking. I also think that we need to fundamentally look at what we have been doing and what we are doing going forward, that we have to think about‑‑we can't just keep on doing things the same way we have been doing them and expect to get a different outcome. We're in a very different world now, a very different situation, and we have to be much more aggressive. We have to show that we are willing to fight for this, and we have to look at how we approach this differently and in order to really accomplish the change and build the power that Americans want us to build in this moment. It's not a time to tippy‑toe around. Paul Wellstone used to say, "Now is not a time for tippy‑toe politics," and I think if he were alive today, he would be shouting that from the rooftops. Now is not the time to tippy‑toe around.

MS. CALDWELL: As you mentioned early on, Minnesota is a state that could be some sort of sanctuary state, giving people access to abortion. Is Minnesota prepared for that?

SEN. SMITH: I mean, it's impossible to be prepared for that. Minnesota has, I think, eight abortion clinics, mostly located in the Twin Cities area.

A couple of weeks ago, I visited a clinic in Duluth, Minnesota, that is serving women across northern Minnesota, northern Wisconsin, and northern Michigan. They are doing everything they can, but they are severely resource‑constrained in terms of the providers that they have, in terms of the physical facilities that they have, in terms of the financial resources they need to try to expand access to care, which they desperately want to do.

So this is why I say that a ban on abortion in South Dakota or North Dakota or Wisconsin has effects on people not only in those states but people living in Minnesota because there is no capacity to absorb that additional need, you know, in one place.

You see already much longer waiting times as people call in to try to get their‑‑try to get an abortion scheduled and are being forced with‑‑you know, confronted with waiting two weeks, which could be too long to wait.

So, no, I don't think it's possible to be ready because the resources and the capacity to respond to this need are just‑‑are just very difficult.

This is why if you care about this issue, it's important to support and do what you can to help support this, but at the end of the day, this is not going to be able‑‑we can't solve this problem with philanthropy. We have to solve this problem by changing the laws and making sure that a woman in northern Wisconsin has the same rights that a woman living in northern Minnesota does.

MS. CALDWELL: So, you know, going back to 2004, President Obama's speech at the Democratic National Convention when he said, famously, "We are not red states. We are not blue states. We are the United States." But, with this ruling, it feels exactly the opposite of that, that there are red states and there are blue states. How do you think that‑‑do you fear for political violence? Do you feel for‑‑do you fear of‑‑for a further disintegration of these United States, and that the right and the left are just becoming‑‑moving even further apart?

SEN. SMITH: Well, what I fear is a government that isn't responsive to the wishes of the people. I fear that our politics can't rise to the moment of what people want, and the challenges that we have around abortion care in this country demonstrate that so clearly.

We have a situation where a small minority is now dictating to women all across this‑‑to people all across this country whether or not they can make their own decisions about abortion. So this is why I believe that what we have to do is to look at the Democratic reform that we need to make sure that our government is actually responsive to what it is that people want.

MS. CALDWELL: Senator Smith, we are out of time. Thank you so much for spending so much time with us. We really appreciate it.

SEN. SMITH: Thank you so much. It's great to be with you.

MS. CALDWELL: Thank you.

And for you in our audience, thank you for watching. In just a little bit, we will be speaking with Marjorie Dannenfelser of the Susan B. Anthony Pro‑Life America. She will have‑‑she's obviously been very thrilled at the decision of Roe v. Wade, and we will talk to her about what is next. Thanks so much.

[End recorded session]

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