This is a RUSH transcript from "The O'Reilly Factor," May 13, 2010. This copy may not be in its final form and may be updated.
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BILL O'REILLY, HOST: Now for the top story, reaction [to Ruth Bader Ginsburg's interpretation of the Constitution] from attorney and Fox News anchor Megyn Kelly. You see her at 1:00 p.m. daily on "America Live."
Now, we should end the segment now. I just crushed you.
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MEGYN KELLY, "AMERICA LIVE" ANCHOR: The prosecution rests?
O'REILLY: Yes. I mean, come — let's take the partial-birth abortion first. Go.
KELLY: All right, so that was a case in which she dissented, as you point out, Carhart. And she took issue with the majority's language in the majority opinion, including referring to an unborn baby as unborn baby.
O'REILLY: But let me stop you. I mean…
KELLY: I just got started. I'm already stopped?
O'REILLY: Well, no. But she doesn't want to describe a fetus as an unborn baby.
KELLY: Here's why.
O'REILLY: You were pregnant.
KELLY: Here's why.
O'REILLY: Did you say you were carrying a baby?
KELLY: No — and I believe that I was carrying an unborn baby, yes.
O'REILLY: Good. I'm glad to hear that.
KELLY: But, Bill, that begs the issue because legally, we're talking about legally, how do you refer to a fetus or an unborn baby.
O'REILLY: Yes.
KELLY: And that is an important distinction.
O'REILLY: But…
KELLY: No, let me finish. In Roe, Justice Blackmun wrote the following. He said: "The question about whether a fetus is a baby", OK, "is a moral question, it's a theological question and it's a legal question, and judges should only speak to the last whether it's a legal"…
O'REILLY: They didn't have DNA back then.
KELLY: And if you…
O'REILLY: When that — when Roe was made…
KELLY: No, Bill.
O'REILLY: …there was no human DNA component in conception.
KELLY: Her point was simply…
O'REILLY: Yes?
KELLY: …if you call it an unborn baby…
O'REILLY: Yes?
KELLY: …you've already announced your decision.
O'REILLY: That's ridiculous. The decision is based on whether you drill a hole in the head of an unborn baby. That's the decision.
KELLY: You're not — I am not going to argue about whether a fetus is an unborn baby.
O'REILLY: I'm just saying to you, look…
KELLY: I'm not…
O'REILLY: And I'm not arguing it either.
KELLY: I think she was taking a position that the language being used by the majority went to the essence of the very case. It's not helpful to the legal debate to jump right to it's a baby.
O'REILLY: No, she based her decision to allow partial-birth abortion, because that's what she wanted…
KELLY: No.
O'REILLY: …on the fact that she doesn't believe it's an unborn baby.
KELLY: No.
O'REILLY: It's a mass of cells.
KELLY: No, Bill.
O'REILLY: It would have to be.
KELLY: Listen, she…
O'REILLY: It would have to be.
KELLY: She may very well favor partial-birth abortion.
O'REILLY: She does. She dissented.
KELLY: Listen, that doesn't necessarily mean she favors it, in her defense. Listen, she's…
O'REILLY: What?
KELLY: She…
O'REILLY: It wouldn't have been outlawed.
KELLY: …was liberal. She was a general counsel of the ACLU.
O'REILLY: It wouldn't have been outlawed.
KELLY: Let me finish. She was general counsel of the ACLU. I have every reason to believe she's extremely liberal, OK, based on before she got on the court as well. But that decision, the dissent she wrote in that case was about adhering to prior precedent. And whether you like Roe or Casey, which upheld Roe several years later or another decision also called Carhart that followed, those decisions upheld Roe and protected a woman's right to abortion.
O'REILLY: But what you're missing is...
KELLY: She was saying the majority was disregarding that precedent.
O'REILLY: How does she know? She can't read minds. She based her opinion…
KELLY: She can read legal opinions, Bill.
O'REILLY: No, no. She bases her opinion on the issue. Not on what the Constitution says. It's impossible, impossible for any reasonable person to think that James Madison and Thomas Jefferson and the rest would want partial-birth abortion. Impossible.
KELLY: Let's say you're right about that. What makes you so sure the five justices in the majority are not basing their authority on what they — the outcome they want as well. This is why we have so many 5-4 decisions. This is why as a Supreme Court reporter…
O'REILLY: So you're submitting…
KELLY: …I could go in the high court…
O'REILLY: All right.
KELLY: …and I could predict how they were going to rule…
O'REILLY: I can't argue that.
KELLY: …even before the oral argument.
O'REILLY: I can't argue that now, because it's not what the topic is, but I just want to be clear that Ms. Megyn is submitting that all justices base it on personal opinion?
KELLY: No. What I'm saying is that…
O'REILLY: Is it possible they do.
KELLY: Is that — to some extent, they all have an ideology…
O'REILLY: But she…
KELLY: …and a legal philosophy that they bring with them.
O'REILLY: She is the extreme. She is the extreme. All right.
KELLY: No, she's not. She is not the extreme.
O'REILLY: Oh, man.
KELLY: If you want to talk — Bill, you picked on the wrong justice. I have to say, she's not even the most liberal justice on the high court. Justice Stevens is, the one who's leaving.
O'REILLY: That may be.
KELLY: Anybody, anybody in the country…
O'REILLY: So but the reason I picked on her…
KELLY: …will move the court to the right, including Kagan.
O'REILLY: Look, that may be so. The reason I picked on her is because her dissent is just smacked full of her opinion. Let's go to New Haven.
KELLY: By the way…
O'REILLY: Her opinion…
KELLY: Can I just make one other point? She also thought that Justice Kennedy in Carhart, the partial-birth abortion case, was being very paternalistic in his language…
O'REILLY: So what?
KELLY: …with respect to women.
O'REILLY: So what, that doesn't have anything to do with the decision.
KELLY: She's calling him out on it.
O'REILLY: So what?
KELLY: She's the only woman…
O'REILLY: Let her call it out on "The Factor"?
KELLY: At the time, she was the only woman sitting on the high court.
O'REILLY: Oh, I'm sorry she was offended by Justice Kennedy when 40 million fetuses, babies, potential human beings have been killed.
KELLY: She took issue with his language. She didn't like him calling abortion doctors abortion doctors as opposed to OB/GYNS.
O'REILLY: What does that have to do with the law? She doesn't like Kennedy? So what?
KELLY: She thought it was inflammatory, was going to the heart of the issue. You — I'm not saying I agree with her.
O'REILLY: All right.
KELLY: I'm saying this is what she was…
O'REILLY: I got to get to New Haven.
KELLY: …defended — this is how she defended it.
O'REILLY: All right. Now, in New Haven, her dissent is based on well New Haven was bad 100 years ago or 50 years ago, so forget the test. We got to right that wrong. That is a personal, political opinion.
KELLY: Bill, you totally mischaracterized what she said. All justices agreed that the history in New Haven was extremely relevant to the case. Justice Scalia acknowledged that this was a really difficult issue of interpretation. She was well within her rights in discussing the history of discrimination in New Haven, which all justices, except for Alito, agreed was an issue in the case. And the only question was whether the city of New Haven had solved it appropriately.
O'REILLY: You don't base your decision — it may have been a component. You don't base your decision on it.
KELLY: Yes, Bill.
O'REILLY: And she did.
KELLY: You're missing it. They have to consider the history of discrimination in the case to try to get to whether the city's behavior was justified.
O'REILLY: Considering is fine, but this is what she highlighted. This is her basis for deciding…
KELLY: Both sides discussed it. That's because that's the one the city put forward as its reason, and the justices had to get into the reasons of the decision. They had no choice. That's what they had to do. Listen, you can disagree with how she came out on it, but examining the history in New Haven…
O'REILLY: No.
KELLY: …was something all the justices did.
O'REILLY: Her language speaks for itself. Now, when you're writing to me about whether you agree with Ms. Megyn or me, OK, please don't cite the fact that Ms. Megyn is better looking than I am. That's a personal opinion, all right? Base it on who has a stronger constitutional argument. All right, Kelly.
KELLY: I want to state for the record I'm not saying I agree or disagree with any of these particular opinions.
O'REILLY: Yes, you're sticking up for her and misguided.
KELLY: But you asked me to tell you how she comes at these issues.
O'REILLY: Right.
KELLY: Now I told you.
O'REILLY: And you asked me to back it up.
KELLY: I'm not saying…
O'REILLY: And I backed it up…
KELLY: I'm not saying agree or disagree.
O'REILLY: …all day long. I backed it up all day long.
KELLY: I'll leave that to the viewers.
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