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LEGAL VIEW WITH ASHLEIGH BANFIELD

Supreme Court Rules Against Obama in Hobby Lobby Contraceptive Case; Accused Marine Deserter Back in U.S.; Parents Both Researched Deaths in Hot Cars

Aired June 30, 2014 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


ASHLEIGH BANFIELD, CNN ANCHOR: The government has to butt out of how some businesses provide some contraception for their female workers. Today's Supreme Court ruling is a big blow for the Obama administration and it could have a significant impact on companies across the country.

Plus, a Marine faces military justice today. He deserted his unit once in Iraq and once back here at home, but will it be proven and will he even face the court martial for it?

And Olympian Oscar Pistorius is back on trial after a psychologist says he knew the difference between right and wrong when he shot and killed his girlfriend. The first witness today, the surgeon who actually amputated Pistorius' legs when he was a baby.

Hello, everyone, I'm Ashleigh Banfield. It is Monday, June 30th, and welcome to LEGAL VIEW.

It is the perfect political storm. A trifecta of sex, religion freedoms and Obamacare. Just moments ago, the Supreme Court handed down its opinion in the highly anticipated case of Burwell versus Hobby Lobby. You've probably heard it as Hobby Lobby. But what it ended up being was a 5-4 ruling that allows some companies to opt out of that part of the Affordable Care Act, Obamacare, that requires companies to cover the cost of contraception, some contraception, for their employees.

Joining me now to talk about the impact of this controversial case is CNN's Justice correspondent Pamela Brown, CNN legal analyst Jeffrey Toobin and an attorney from the Becket Fund, a public interest law firm representing Hobby Lobby, Hannah Smith.

Pam, first to you. Take me into this very narrow ruling. And, in plain English, explain for the views really what was said today in those hallowed halls.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Well, it is a narrow ruling, as you point out, Ashleigh, and there still are some unanswered questions here today. But the conservative justices, the majority ruled in favor of Hobby Lobby today, saying essentially that owners of these closely held, family-owned, for-profit companies are the company and therefore can exercise religious freedom rights. And in this case, the justices ruling that Hobby Lobby does not have to be required by the government to provide coverage of certain types of contraception to its employees.

Hobby Lobby had argued that four types of contraception equates to abortion and that it was a violation of their faith to provide that to its employees. And today, Ashleigh, the justices siding with Hobby Lobby. But you had the dissent from four justices. And in her dissent, Justice Ginsburg said, "the court, I fear, has ventured into a minefield by its moderate reading of RIFRA (ph). I would confine religious exemptions under the act to organizations formed for religious purpose, engage primarily in carrying out that religious purpose."

So bringing to note here, Ashleigh, that the concern from the dissent and from the other side of this argument is that, even though this is a narrowly tailored ruling for these closely held family-owned companies, that this could pave the way and set precedent for bigger companies to perhaps be exempt from this. But the other side to that, and not to get too much in the weeds here, is that you have to look at the compelling government interest. And in this case, the justices saying that these religious liberty rights of the companies trump the government's interests in this case.

BANFIELD: Well, it's certainly worth reading the opinions and the dissenting opinions as well.

Jeff Toobin, to you, if I may. I just want to be real clear on this -- this closely held issue because I know that Nancy Pelosi has sent out a sweeping e-mail suggesting that this effects thousands and thousands and thousands of women across the country because there are so many closely held companies across the country, and it is an official IRS designation as well.

Apparently if you want to be considered a closely held corporation, you've got to have more than 50 percent of the value of your outstanding stock owned directly or indirectly by five or fewer individuals at any time in the past -- last half of the tax year, also not a personal service corporation. So with that definition out of the way, Jeffrey, I want to get into the bigger forest here, and that is, why, even though this is a very narrow decision, it could have sweeping ramifications for Obamacare and other challenges that may come down the pike. Can you explain that?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, let's be clear that this -- we keep saying narrow. I mean, the majority says it's narrow, but it's not at all clear that it is narrow. And, in fact, Ruth Bader Ginsburg's dissenting opinion is devoted to the proposition that it's not narrow. That the idea that a privately held company can exercise religious beliefs in deciding which benefits and which customers to deal with is potentially a very broad idea.

In fact, you know, she points out that there are religion owners of companies who believe in the separation of the races. (INAUDIBLE) and white people should not be together. Should their religion beliefs be honored? There are people of conviction and faith who believe that homosexuality is evil and immoral and don't want to engage in business with gay people and don't want to photograph their weddings and don't want to provide food to their weddings. They could take advantage of these rulings. That's the tension in this opinion about how narrow it really is.

I don't really know the answer. But the narrowness or breadth of this opinion is very much up for debate. It is not necessarily confined to this one company.

Hannah Smith, I'd like you to weigh in on this. Being that, you know, you were helpful in the representation for Hobby Lobby. There's this strange irony that I'm wondering if you see playing out right here. Yes, your -- the company you're representing, the Green family, does not have to pay for the kinds of contraception they find so unappealing and religiously immoral. However, those employees may still end up getting that contraception perhaps at the expense of the American taxpayer, which ultimately means hundreds of thousands, if not millions more people who may have that objection will end up footing the bill. Do you see where I'm going with that?

HANNAH SMITH, SENIOR COUNSEL, THE BECKET FUND: Well, first, I just want to say, it's a great day for the Green family, for Hobby Lobby, for women and for people of faith in America. The court sided with Hobby Lobby in saying that you don't lose your religious freedom rights --

BANFIELD: I know that, but I want you to answer the question that I asked you, which is the irony, Hannah, that ultimately the Green family may not have to pay for those contraceptions, right, but if the taxpayer ends up footing the bill instead, loads and loads of other people who may object, just like the Greens, will end up paying for it. Do you see the irony here?

SMITH: Well, the point is, the court said very specifically that if the government wants to create this mandate to provide contraception to women, that it could either pay for it itself or provide another means for doing so. The whole point of the majority opinion is that there's a less restrictive means of accomplishing this goal of providing contraception without forcing religious people to do it themselves. And so if the government wants to make it available, then the government can pay for it or it can find another way of doing it, but it can't force religious people to do it.

BANFIELD: But you and I are the government (ph). When it comes to the money, you and I are the government, right? So, ultimately, you're forcing someone out there who may not appreciate that kind of contraception to pay for it anyway, no?

SMITH: Well, the point is, is that if the government wants to make that benefit available, then the government has to find a way to pay for it and it can't force religious people to do it. That's the bottom line.

BANFIELD: Listen, appreciate you taking the time to talk with us. It's been a monumental day at the Supreme Court. Jeffrey Toobin, Pamela Brown, stay with me. Hannah Smith, thank you for your time.

There is so much more to this because today's Supreme Court ruling revealed an interesting division of the court. And it looked like it was pretty much along the gender lines. So what did the three female justices have to say about the issue of health care coverage for contraception? We're going to dig deeper on that after a quick break.

(COMMERCIAL BREAK)

BANFIELD: So the Supreme Court has ruled against the Obama administration. Not the first time. This is happening again. The 5-4 ruling that was handed down not too long ago says that closely held corporations can opt out of a mandate that is found within Obamacare that requires businesses to pay the tab for some of their employee's contraception.

This may be a shocker for some people, but five men made up the majority on the court and the three women on the court dissented. Only one man joined the dissent, Justice Stephen Breyer. You can shake that another way too, they were all liberals, so that's also something that we need to consider as we continue this conversation about the gender division on the court or if there really is one.

CNN's legal analyst Jeffrey Toobin and Sunny Hostin are with me now.

So the two of you, I'm going to get you to duke this one out. So, Sunny, I know where you stand on this. We were already debating during the commercial break. I looked at that instantly and I saw the typical 5-4. Typically Kennedy, who is the swing voter -

SUNNY HOSTIN, CNN LEGAL ANALYST: Sure.

BANFIELD: But I rarely see it as a gender issue. Sure, there are gender issues involved in this issue.

HOSTIN: Yes.

BANFIELD: But why is it specifically when you looked at the opinion you zeroed in on that?

HOSTIN: Well, I - you know, and I zeroed in on the dissent. And I did zero in on the fact that you have all three female justices voting together. And while they do vote together often, when you look at the wording and the language of this particular decision, which was written by Justice Ginsburg, women's rights issues are peppered throughout. I mean she starts off in her dissent saying this has startling breadth.

So while the majority of the decision seems to suggest that the narrative should be very narrow, she's saying, huh-uh, this is a hugely important decision. It has startling breadth. And she also quotes so many statistics about women, Ashleigh. She says women of child bearing age spend 68 percent more in out of pocket health care costs than men. She goes on to talk about how health care decisions are often made in the hands - with - in the hands of women and their health care providers and their doctors.

BANFIELD: Does she - does she delineate that 68 percent though, having to deal with contraceptive issues, or is it just health care in general?

HOSTIN: Absolutely. Absolutely. She talks about women of child bearing age. And I think with -

BANFIELD: Well, but that's - that's, you know, that's sticky.

HOSTIN: It is sticky but it certainly - it's peppered throughout with the notion that this is very much a woman's issue. And let's face it, it is. We're talking about something that is disproportionally going to affect, who, women, because when you look at the contraceptive that is at issue here, the four contraceptive devices that Hobby Lobby had a problem with, they had a problem with Plan B, which is the morning after pill, they had a problem with two types of IUDs and they had a problem with Ella. These are contraceptive choices for women, not for men.

BANFIELD: And I was just reading through the hundreds of e-mails that I got this morning on this issue because everybody went bananas to get their blast e-mails out and I can't even find it, it's buried so much, so there was -- there was some conservative women who had e-mailed out - And, Jeff, I'll get you to speak to this, the issue of, please, don't tell me that this is a gender issue, this is a religious issue, and I think it's a strong argument that they make about this.

I also just want to bring up the issue, and it's only because it was just fascinating to see a network break to commercial break during the coverage and do a Viagra ad because the moral discussion has often been, are you kidding me, Viagra is always covered, while birth control seems to be this horrendous issue, but Viagra doesn't seem to be a religious issue.

TOOBIN: Well, it's -- these -- gender is one way of looking at it. Politics is another. The five justices in the majority were all appointed by Republican presidents. The four justices in the minority were all appointed by Democratic presidents. That is not a coincidence. You know, elections have consequences and the composition of the Supreme Court is one of the most important aspects of the implications of presidential elections.

You know, I -- these issues are so much about how you frame them. You know, the majority is talking about, you know, isn't it terrible to force religious people to pay for something that they find immoral. The dissent is focusing on women's rights. You know, if you go to work as a clerk at K-mart or at Macy's, you get birth control covered just like everyone else covered by the Affordable Care Act.

But if you go to work at a sales clerk at Hobby Lobby, because of some person who you never even meet, some family you don't even know anything about, their convictions trump your rights under the Affordable Care Act. That's what today's decision means. And it depends how you want to look at it.

BANFIELD: Well, it certainly does. There is a strong argument for the Greens to say, how dare you make me do something -- how dare the government make me do something that's against my religion? We have amendments to protect us from that. So, listen, the both of you, we could go on and --

HOSTIN: We could. BANFIELD: Honestly, it's so fascinating. I love this decision today,

just for the fascination.

Jeffrey Toobin, Sunny Hostin, you're working so hard, and we're so appreciative. Thank you both.

A United States Marine accused of deserting his duties turns himself in. At one time was even thought to be captured and being held by the enemy at the time he'd been serving in Iraq. We've got details on a very strange story, because it happened not once but twice. What? So what does that mean in terms of prosecuting him? And what about this video you're seeing? Is it real? History unfolds in a moment.

(COMMERCIAL BREAK)

BANFIELD: A Marine corporal is going to return to Camp Lejeune today, accused of deserting his unit and not just once, two times. In 2004, Wassef Ali Hassoun, seen here with a blindfold, he was an Arabic interpreter, and he disappeared while serving in Iraq, and the Marines originally charged him with desertion.

But then they changed his status to captured when they saw this, the release of a videotape. Sure looks like he's a prisoner. There's a sword hanging over his head in some of the shots. But the next year, he failed to show up for duty at Camp Lejeune in North Carolina after he'd actually surfaced.

So it was very odd that this video would happen, he would then come out of the woodwork and ultimately then not show up to face the music. It's all a little complex, but Barbara Starr is at the Pentagon to sort this out, and CNN military analyst Lieutenant Colonel Rick Francona's here to talk about the fallout.

So, OK, Barbara, clear this up. That video where he's shown to be a prisoner and his status changed ultimately was a fake?

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Well, that's what the Marine Corps thinks, Ashleigh, and has thought for some years now.

It was about a decade ago, 2004. He's serving in Fallujah, Iraq, at the height the war. He goes missing. The video turns up. He's blindfolded, a sword over his head. But you look at that picture, a nice, clean, pressed uniform, not much of a hostage scenario.

So the Marines basically once he turned up in Lebanon thought basically he had deserted. They brought him home when he surfaced. He comes back to Camp Lejeune to face the music, supposedly, and then he goes missing again in 2005 for a number of years. They believe he spent most of that time in the Middle East.

Apparently over the last several months had made some overtures that he wanted to come back to the United States. He'd reached out, a couple of timings. They tried. For various reasons, it didn't work.

They think he was in Lebanon with his family, but there were some issues there with some perhaps some clan warfare, the ongoing violence in Lebanon, and apparently coming back to face the music with the Marine Corps on potential desertion charges looked better to him than staying in Lebanon.

Ashleigh?

BANFIELD: The weird part for me as I look -- you know, when I look at civilian justice, I think it mirrors the Uniform Code of Military Justice somewhat, but I see that he wasn't held in confinement because he wasn't determined to be a flight risk, and this was a person who had fled his unit in Iraq. So for there, I'm a little flummoxed.

But, Colonel Francona, maybe you could jump in on this, because ultimately, the NCIS, the Naval Criminal Investigative Services -- these are the guys that go out and do the investigation. They go into these places and they collect evidence. I'm assuming they work somewhat like the CIA, but they have far more restrictive, you know, methods to collect pristine evidence, et cetera.

So these guys are saying that they worked with this soldier to bring him in. Does that scream some kind of deal has been made? Because they haven't charged him yet.

LIEUTENANT COLONEL RICK FRANCONA, CNN MILITARY ANALYST: I think so. The fact that they were able to find him in Lebanon, which, in itself, is a feat because he's originally Lebanese. He spent a lot of time there. He could easily just disappear and we'd never find him. So he's reached out.

NCIS, according to the way I'm reading this, they've made some sort of a deal with him to get him to come back and face these charges. But they cannot neglect desertion. That's the ultimate crime.

BANFIELD: There's two desertions here, a 2004 desertion from the Fallujah area, so that's in-country in-theater. Very different from sort of disappearing from Camp Lejeune, which is the civilian side, or at least stateside. So the penalties can be far more severe when you desert, if you're deemed to have deserted, during war, certainly the death penalty. What about the desertion domestically?

FRANCONA: It would be dishonorable discharge and all that. I think all these charges are going to be related to the original desertion. There was the desertion and he never really got to face the charges. He disappeared before that. So they could try him for the first desertion and then the second disappearance.

BANFIELD: I don't want to be the NCIS officers who have to go to Fallujah to collect the evidence because that place right now is ISIS, basically, controlled and that's really hard to gather that kind of evidence you need for that kind of conviction.

FRANCONA: But they have the evidence they need for the initial desertion. It's the second part that they -- I think that they've got a good case against him already, and they've made some sort of a deal. I don't know what that is, but I think we'll be finding out in a few days. BANFIELD: I know Barbara's "Spidey senses" are tingling. You'll have to work your Pentagon sources, Ms. Starr, and let us know what you find out in terms of what kind of deal they were able to make to get him back to Camp Lejeune.

Thank you to the both of you, Barbara Starr, Rick Francona, as always.

Developments in the case of the Georgia toddler who died after his father left him in a hot car, the father of the boy has been charged with murder. He told authorities that he had actually searched the Internet for information on children dying in hot cars.

And now -- bombshell -- the mother of the child says she, too, made similar Internet searches. But what does that mean for the case against the father? Might be surprised. That's next.

(COMMERCIAL BREAK)

BANFIELD: There is a very strange, new twist in the investigation into the death of that Georgia toddler who was locked inside his dad's car for seven hours in the broiling Atlanta heat. Ultimately, he died because of it.

Police are now saying that the boy's mom is being questioned as well after admitting that she, along with her husband, had researched the topic of car deaths, child car deaths in hot cars on the Internet.

Leanna Harris has not been charged in this incident, but the boy's father sure has. Justin Harris is, in fact, been charged with murder, and he's being held without bond. And you might remember he was the one who originally said he'd researched that topic online.

So along with the murder charge is a child cruelty charge, and the investigation is just getting under way.

Here's Nick Valencia.

(BEGIN VIDEOTAPE)

NICK VALENCIA, CNN CORRESPONDENT: A day after she defended her husband against after people who called him a murderer, CNN has learned Leanna Harris may have to defend her own actions.

In search warrants released this weekend, police said, quote, "Leanna Harris, the child's mother, was also questioned regarding the incident and made similar statements regarding researching in car deaths and how it occurs." Police did not say when the search was done.

Left alone for seven hours in an SUV, 22-month-old Cooper Harris died. The high temperature that day was 92 degrees. The boy's father, Justin Ross Harris, has been charged with murder. He says he's not guilty.

Harris phoned in to his baby's funeral service and was heard over the speakerphone sobbing. He thanked the crowd for their support. The hundreds there stood to applaud him. Cameras were not allowed inside.

CAROL BROWN, FAMILY FRIEND: I'm here for him.

VALENCIA: You're here.

BROWN: Even if he's done a horrible thing.

VALENCIA: Carol Brown, a longtime family friend, was one of those in attendance.

BROWN: I mean, he could have gone to the car and not seen the little boy if the boy was sleeping, you know? It could have. I mean, he could have been distracted. So -- but I do have questions about it.

VALENCIA: Questions that may also be aimed at the boy's mother. Why would both parents do a search, as police say, for how long it takes a child to die in a hot car?

Still to determine if this was a tragic coincidence or something much worse.

Nick Valencia, CNN, Atlanta.

(END VIDEOTAPE)

BANFIELD: Joey Jackson is here, CNN and HLN legal analyst and the perfect person to talk to about this, because now we have this monkey wrench so to speak.