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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: I think like this before.

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Speaker 1: Like it, Donald Trump was right about that. There's never

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Speaker 1: been another trial like it, the first criminal trial of

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Speaker 1: a former president of the United States. It's being referred

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Speaker 1: to as the hush Money case. The Manhattan DA says

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Speaker 1: it was a coordinated effort by the former president to

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Speaker 1: pay hundreds of thousands of dollars to spike selicious tabloid

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Speaker 1: stories about his alleged affairs with women before the twenty

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Speaker 1: sixteen election. But the hush money really isn't the issue.

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Speaker 1: That's not illegal. The DA says that Trump repeatedly falsified

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Speaker 1: business records by disguising the payments as legal expenses, amounting

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Speaker 1: to campaign finance violations. Jury selection is one of the

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Speaker 1: most important, if not the most important, part of a trial,

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Speaker 1: and that process of selecting twelve jurors and six alternates

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Speaker 1: began this afternoon, with the morning taken up by the

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Speaker 1: judge hearing hours of motions. Joining me is former federal

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Speaker 1: prosecutor Michael Zelden. Michael, what does the jury questionnaire tell

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Speaker 1: us about the jury selection process or the concerns of

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Speaker 1: the judge.

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Speaker 2: Here, the jury questionnaire is a comprehensive effort on the

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Speaker 2: part of the judge ensure as maximum amount as possible

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Speaker 2: that he picks a jury that is not walking into

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Speaker 2: this courtroom with a predisposition that will override the evidence

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Speaker 2: and the jury instructions that are given to them at

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Speaker 2: the end of the case. So I think that he's

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Speaker 2: doing the best he can to try to carve out

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Speaker 2: from the jury pool those people whose predisposition will overarchingly

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Speaker 2: impact their way they view the evidence.

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Speaker 1: Do you think that the defense will be looking for

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Speaker 1: working class people, maybe not college educated, with negative views

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Speaker 1: of law enforcement.

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Speaker 2: What I understand from reporting on the jury experts that

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Speaker 2: have been advising Trump that they're targeting young African American

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Speaker 2: males and working class whites, And I think it's to

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Speaker 2: that exact theory. I think it's rather cynical, honestly, that

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Speaker 2: those classes of people will somehow be more suspicious of

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Speaker 2: the police and therefore more inclined to be sympathetic that

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Speaker 2: Trump's argument that he is being persecuted and is the

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Speaker 2: victim of overarching police activity and not really the subject

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Speaker 2: of a righteous prosecution.

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Speaker 1: And experts have said that prosecutors will search for people

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Speaker 1: with college degrees and white collared jobs, and they're likely

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Speaker 1: to prioritize getting women on the jury.

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Speaker 2: That's what they say. Because this is an affair and

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Speaker 2: a hush money attempt to cover up that affair. There'll

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Speaker 2: be testimony from another alleged victim of Trump's bad behavior,

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Speaker 2: and so their thoughts is that women will be more

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Speaker 2: sympathetic to the prosecutor's view that here's a predatory person

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Speaker 2: who is now endeavoring to cover up his predatory behavior

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Speaker 2: in order to cynically win the presidential election. So yeah,

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Speaker 2: that's their theory. Every lawyer, prosecutor, or defense alike has

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Speaker 2: their view of who is the joor that's most going

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Speaker 2: to be receptive to their message, And if the prosecutor

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Speaker 2: believes that women will be more receptive, then they'll use

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Speaker 2: that peremptory challenges that challenges which lets them move people

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Speaker 2: for virtually any reason as long as it's not a

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Speaker 2: race or class or religion sort of stuff. And the

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Speaker 2: defense will do just the opposite and put on the

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Speaker 2: people that they think will best be sympathetic to their message.

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Speaker 2: It's not really an effort to find the art the typo,

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Speaker 2: independent minded, with no predisposition dur it's who can I

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Speaker 2: get on my jury that will most likely be sympathetic

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Speaker 2: to my arguments because remember, in a criminal case, the

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Speaker 2: verdict needs to be unanimous, and so if you can

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Speaker 2: pull one juror who says I have a doubt in

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Speaker 2: either direction, convict or quit, then the jury gets a

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Speaker 2: hung jury and then they got to start all over again.

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Speaker 2: If they start all over again, that's a clear victory

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Speaker 2: for Trump because a second trial or retrial more that

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Speaker 2: necessary would likely not occur before the election.

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Speaker 1: Do you think the judge is looking for, you know,

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Speaker 1: middle of the road juror not biased in either way,

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Speaker 1: or I mean, what is the judge looking for?

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Speaker 2: Exactly right? The judges looking for this middle of the

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Speaker 2: road will listen to the evidence, We'll listen to the

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Speaker 2: jury instructions, and will render a verdict based on the

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Speaker 2: evidence and those jury instructions. Then you see the effort

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Speaker 2: the court is going through to accomplish that, which is

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Speaker 2: they're asking what newspapers do you read, what television stations

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Speaker 2: do you watch, what's your view of the world of

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Speaker 2: QAnon and Kifa and all that stuff to try to

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Speaker 2: co out if you will the people who are playing

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Speaker 2: from the twenty yard line to the goal line on

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Speaker 2: each side of the field, and keep those who are

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Speaker 2: willing to play in the middle of the field.

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Speaker 1: There is always a possibility of getting a stealth juror

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Speaker 1: on a case. That's a juror who has an agenda

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Speaker 1: but pretends to be neutral. In this case, it seems

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Speaker 1: like there might be a higher incidence of that. How

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Speaker 1: do you keep stealth jurors off the jury?

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Speaker 2: You can't. If they're going to lie during war gear,

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Speaker 2: during the jury selection processes, they're going to just flat

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Speaker 2: out lie saying oh no, I don't believe in the

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Speaker 2: big lie, or whichever way it falls out. If they're

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Speaker 2: going to lie about that, it's very difficult to sort

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Speaker 2: them out. The best you can do is say, all right, well,

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Speaker 2: find you say that you don't believe in this, but

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Speaker 2: let me ask you where do you get your news?

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Speaker 2: What stations do you listen to? Now, if they're going

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Speaker 2: to continue the lie, say oh, I listened to everything,

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Speaker 2: I get all news sources. When they're a pure MSNBC

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Speaker 2: listener or a pure you know, Fox, oan NEWSMAC sort

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Speaker 2: of listener, it's very hard to cull them out. You know,

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Speaker 2: they're under oath to be truthful, and so theoretically if

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Speaker 2: they lie and the judge will tell them if they lie,

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Speaker 2: they'll be subject to prosecution for that lying. But you

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Speaker 2: can't really ensure that that won't happen.

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Speaker 1: So then what are the chances that the judge can

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Speaker 1: get a fair, unbiased jury in Manhattan.

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Speaker 2: Well, it's hard to know. The questionnaire forty two questions

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Speaker 2: with multiple sub questions. So it's a very comprehensive jury questionnaire.

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Speaker 2: And there's an experienced jurist. He knows what the week

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Speaker 2: from the chaft is because he's done this before. It's

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Speaker 2: not like Aleen Cannon in marro Lago, who has just

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Speaker 2: become a judge. And so I think he's just going

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Speaker 2: to rely on his instincts and he can strike Durrs

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Speaker 2: for cause if he wants to. And he says to himself,

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Speaker 2: you know what, I have a funny feeling about this Durr.

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Speaker 2: He can say, you know, ma'am, I'm going to excuse you,

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Speaker 2: or sir, I'm gonna excuse you.

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Speaker 1: A lot of the day was taken up with motions.

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Speaker 1: Trump's defense had filed so many motions and the judge

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Speaker 1: handled them today. How big a win is it for

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Speaker 1: the defense that the judge again refused to allow that

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Speaker 1: Hollywood Access tape to be played for the jurors. He

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Speaker 1: said that comments Trump made on the tape could be

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Speaker 1: introduced as evidence, but not the playing of the tape itself.

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Speaker 2: I think that's cautious on his part. I think he

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Speaker 2: wants to make sure that the evidence that comes in

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Speaker 2: is probative, but not more prejudicial than probative. So, for example,

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Speaker 2: he will allow evidence that says Donald Trump had allegedly

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Speaker 2: an affair with Karen McDougall during a certain time period.

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Speaker 2: They cannot say, by the way, during that time period,

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Speaker 2: Malania Trump was pregnant. He says that aspect of it

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Speaker 2: is just too prejudicial. You'll get what you need by

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Speaker 2: saying he's done this before. Similarly with the Access Hollywood tape,

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Speaker 2: he's saying, look, I'll let you talk about the fact

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Speaker 2: that he said these things, but to listen to these

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Speaker 2: words out of his mouth is more prejudicial than probative.

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Speaker 2: It doesn't prevent you from putting on your argument that

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Speaker 2: this is a repeat offender, if you will. And so

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Speaker 2: I'm gonna err on the side of cautions, because remember,

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Speaker 2: what he wants to do is ensure that there is

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Speaker 2: nothing on appeal that interrupts the verdict in the case

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Speaker 2: that is not reversed on appeal because he favored one side,

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Speaker 2: the prosecution over the defense. He's looking for down the middle,

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Speaker 2: probative and not prejudicial over the probative value of it.

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Speaker 1: It seems like in a lot of the rulings he makes,

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Speaker 1: it's sort of like he's trying to be Solomon and

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Speaker 1: you know, cutting the baby in half. He gives some

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Speaker 1: to the prosecution and some to the defense. Do you

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Speaker 1: think he's acutely aware of the problem of reversal if

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Speaker 1: he does anything that disadvantages of the defense.

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Speaker 2: Absolutely has to be concerned, knowing who Trump is and

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Speaker 2: how litigious he is, that if Trump is convicted, he

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Speaker 2: is going to appeal, you know, death and taxes sort

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Speaker 2: of stuff that's going to happen, and so he needs

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Speaker 2: to do everything he can to protect the record against

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Speaker 2: a verdict reversal. And what he's trying to do, you know,

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Speaker 2: is Solomon esque, which is to make sure that everybody

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Speaker 2: get something without it being more as I say, prejudicial

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Speaker 2: than propriative toward the final conclusion in the cave.

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Speaker 1: So another one of the things that came up today

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Speaker 1: was that the prosecutors were arguing that Trump's social media

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Speaker 1: posts violate the gag order. Apparently there was one from

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Speaker 1: Wednesday where he references two sleeves bags, which in context

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Speaker 1: are Michael Cohen and Stormy Daniels, and Judge said he's

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Speaker 1: going to hear this, you know, the attorney's arguments on

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Speaker 1: both sides on Wednesday. I mean, is it too soon

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Speaker 1: to actually find Trump for disobeying the gag order.

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Speaker 2: I think it's plenty of time for them to determine

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Speaker 2: that Trump has violated this gag order. I think he

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Speaker 2: has routinely violated it, and he's been treated very fairly,

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Speaker 2: more fairly than the ordinary defendant, and he's under strict

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Speaker 2: rules not to talk about witnesses. It's very clear as

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Speaker 2: you say who he's talking about without naming them, it's

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Speaker 2: irrelevant because everyone knows who he's talking about. And I

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Speaker 2: think the judge is going to have to do something

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Speaker 2: to clamp down on it. Because the trial is not televised,

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Speaker 2: so we don't get to see what's going on. So

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Speaker 2: the reporters come out and tell us what's going on,

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Speaker 2: and then Trump comes out, or his lawyers come out,

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Speaker 2: or both of them come out and give us their spin.

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Speaker 2: And so you can fully expect that he is going

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Speaker 2: to continue this rant against the people who are quote

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Speaker 2: unquote persecuting him, and I think the judge has to

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Speaker 2: make sure that that doesn't happen. I think he needs

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Speaker 2: to make sure that Trump doesn't get away with poisoning

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Speaker 2: the jury pool.

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Speaker 1: So about half of the one hundred prospective jurors were

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Speaker 1: dismissed because they said they couldn't be fair and impartial.

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Speaker 1: So the trial day ended what zero jurors selected, and

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Speaker 1: the judge saying they were already behind. Do you think

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Speaker 1: he can get it done in two weeks.

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Speaker 2: It's going to be a tight deadline. I hope he can.

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Speaker 2: I think two weeks should be enough time. You know,

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Speaker 2: he said that the court will beat on Mondays and

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Speaker 2: Tuesdays and Thursdays and Fridays. You've got passover coming up

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Speaker 2: on Mondays and Tuesdays, so he's going to let the

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Speaker 2: court out half days. It's some of the Trump lawyers.

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Speaker 2: I think, I said, they've got high school graduations that

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Speaker 2: they want to attend, and he's got to be mindful

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Speaker 2: that people. You know, obviously celebrating religious holidays is of

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Speaker 2: critical importance, and not missing your children's milestone events is

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Speaker 2: critically important. So he's gonna have to figure that out

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Speaker 2: because it doesn't really make a difference whether the jury

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Speaker 2: flushing process takes an extra week. It's not going to

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Speaker 2: you know, make or break anything. And so I think

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Speaker 2: he really should allow the parties to live lives around

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Speaker 2: these important events and the case will be as the

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Speaker 2: case will be. It's going to go to trial, you know,

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Speaker 2: if the evidence starts coming in on May first instead

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Speaker 2: of April twenty fifth. What's the big deal?

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Speaker 1: Trump has said he's going to testify. Most legal experts

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Speaker 1: look at that and say he shouldn't testify.

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Speaker 2: Well, yes, he said he's going to testify, but he

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Speaker 2: always says he's going to testify and then he never

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Speaker 2: shows up. He was going to testify before the January

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Speaker 2: sixth committee. He's going to testify, and Letitia James case,

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Speaker 2: he was going to testify everywhere he goes the church

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Speaker 2: because he doesn't go to church, but he has said that,

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Speaker 2: and I don't expect he will go there. I don't

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Speaker 2: expect he will testify, But if the case is going

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Speaker 2: badly for him, if the defense attorneys look at the

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Speaker 2: way the evidence is coming in and whether or not

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Speaker 2: they're cross examination of these key witnesses was effective, they

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Speaker 2: may say to Trump, look, this is not going well

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Speaker 2: for us. It's hail Mary time, and you've got to

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Speaker 2: take the stand in order to salvage this. You can

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Speaker 2: hypothesize a scenario where, while most lawyers would say to Trump,

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Speaker 2: there's no way you're testifying, you'd make a horrible witness,

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Speaker 2: that you could at the eleventh hour have to make

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Speaker 2: a decision that it's conviction or hail Mary with Trump testifying.

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Speaker 2: And remember the thing here is because you need a

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Speaker 2: unanimous verdict all twelve jurors, a Trump testifier could be

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Speaker 2: that which gets them the one juror to hang in.

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Speaker 2: You know, he may convince that Trump leaning but still

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Speaker 2: on the jury duror that you know what Trump is

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Speaker 2: in fact being persecuted, or in fact these are not

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Speaker 2: business records, or in fact Michael Cohen is an incredible witness,

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Speaker 2: or in fact Tommy Daniels has a act to grind.

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Speaker 2: So that's where it could play in But I think

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Speaker 2: if you and I were his council, and he said

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Speaker 2: to us before trial, so guys, think about testifying. What

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Speaker 2: do you think. It's like, Oh my god, are you kidding? No,

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Speaker 2: I've seen your deposition. You know you can't go from

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Speaker 2: A to B without wondering. So we'll see.

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Speaker 1: Yes, we'll see that, and I think a lot more

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Speaker 1: during the next six weeks or so. Thanks so much, Michael.

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Speaker 1: That's former federal prosecutor Michael Zelden dec There were rallies

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Speaker 1: across Arizona yesterday to protest the state Supreme courts ruling

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Speaker 1: in favor of a near total ban on abortion dating

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Speaker 1: back to the Civil War. Protesters were rallying support for

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Speaker 1: a ballot initiative to reverse that ban and allow voters

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Speaker 1: to decide the issue in November. Vice President Kamala Harris

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Speaker 1: traveled to the state after the decision to emphasize the

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Speaker 1: stakes of the twenty twenty four election for reproductive freedom.

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Speaker 1: Are you ready to make your voices heard?

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Speaker 2: Do we trust women?

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Speaker 3: Do we believe in reproductive freedom?

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Speaker 1: Do we believe in the promise of America?

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Speaker 2: And are we ready to fight for it? And when we.

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Speaker 3: Fight, we win?

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Speaker 1: As many as thirteen states have abortion measures on the ballot,

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Speaker 1: including Florida, where a six week ban is set to

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Speaker 1: become law on May first. Abortion rights have won in

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Speaker 1: all six states where it's been on the ballot, including

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Speaker 1: conservative states like Ohio, Kansas, and Kentucky. Joining me is

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Speaker 1: reproductive rights expert Mary Ziegler, a professor at UC Davis

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Speaker 1: Law School. Mary is the Arizona abortion law the most

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Speaker 1: draconian in the country.

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Speaker 3: It's up there. I think we have Arizona and Idaho

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Speaker 3: both having laws that only have exceptions for life, whereas

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Speaker 3: most anti abortion laws have some sort of very narrow

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Speaker 3: health exception. So I would say, you know, tiede from

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Speaker 3: the most stringent law.

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Speaker 2: In the US.

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Speaker 1: In this decision, the judges on the Arizona Supreme Court

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Speaker 1: said their job was to interpret two potentially conflicting state laws,

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Speaker 1: not to make a policy judgment about abortion.

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Speaker 3: Yeah, so planned Parenthood's initial strategy. It's worth emphasizing right

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Speaker 3: that in theory there could be more litigation in Arizona

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Speaker 3: about abortion. This found was about the relatively narrow question

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Speaker 3: about how the states statutes could be reconciled, and Arizona

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Speaker 3: has even more you know, abortion in statutes than the

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Speaker 3: ones before the court. But this case, planned Parentoid was

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Speaker 3: pointing to the state's fifteen week ban, which obviously was

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Speaker 3: passed a lot more recently than this eighteen sixty four law,

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Speaker 3: and saying essentially that that was the policy that the

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Speaker 3: state legislature had intended to put in place, right, it

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Speaker 3: hadn't wanted a ban for fertilization, it wanted to have

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Speaker 3: a ban at fifteen weeks, And secondarily, that the legislature

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Speaker 3: had confused physicians, essentially that physicians were unable to tell

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Speaker 3: if they were supposed to follow one law or the other,

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Speaker 3: and that that created due process problems. And the Arizona

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Speaker 3: Supreme Court rejected those arguments, saying, essentially, when you're trying

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Speaker 3: to harmonize these two laws, it's fine to let the

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Speaker 3: eighteen sixty four law go into effect. The fifteen week

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Speaker 3: ban wasn't supposed to stop that from occurring, and that

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Speaker 3: there was nothing in the clash between the two laws

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Speaker 3: that would be too confusing for physicians.

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Speaker 1: So was it a determination between the two laws or

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Speaker 1: did they actually say, you know, abortion, these kinds of

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Speaker 1: laws comport with a state constitution, or do they do

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Speaker 1: the reasoning out loud.

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Speaker 3: They didn't have to get into that yet because that

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Speaker 3: wasn't the question for the court. So we've seen lots

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Speaker 3: of other ligation in other states, led by the Center

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Speaker 3: for Reproductive Rights, that you know is much more clearly

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Speaker 3: about what the state constitution has to say. And that

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Speaker 3: question I think is still unanswered to some degree in Arizona.

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Speaker 3: But the upshot of Arizona's ruling is that this ban

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Speaker 3: is now going to be in effect anyway, So you know,

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Speaker 3: constitutional question or no constitutional question is the upshot is

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Speaker 3: still going to be that Arizona has one of the

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Speaker 3: harshest you know laws in the nation.

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Speaker 1: The court said it would put its decision on whole

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Speaker 1: for fourteen days, so a lower court can consider additional

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Speaker 1: constitutional challenges. What might those be.

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Speaker 3: Well, we've seen variations of different kinds of constitutional argument

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Speaker 3: cropping up in the states. Some of these are based

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Speaker 3: on constitutional equality guarantees in the states. Some of them

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Speaker 3: are based on privacy or kind of liberty ideas. Some

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Speaker 3: of them are based on a right to life for

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Speaker 3: the woman or patient. Some again, are based on vagueness,

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Speaker 3: especially when you have exceptions that spend contradictory messages about

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Speaker 3: what is or isn't permitted, and we don't know which

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Speaker 3: of those things, if any, will be compelling to the

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Speaker 3: Arizona Supreme Court. Obviously, you know, the timeframe for resolution

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Speaker 3: of some of those claims is going to be pretty

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Speaker 3: tight because the law is spotted to go into effect soon.

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Speaker 3: But again, this is going to be an ongoing struggle

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Speaker 3: in the state. We also have the Balid initiative that

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Speaker 3: maybe before voters in November, as well as retention elections

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Speaker 3: of some of the justices who joined the majority.

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Speaker 1: So the Arizona Turn General Kristen Mays said that despite

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Speaker 1: the court decision, she would not enforce the eighteen sixty

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Speaker 1: four law. But is it about her enforcing it or

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Speaker 1: is it about doctors not doing abortions because of this law?

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Speaker 3: Well, there are two problems. One I think is the

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Speaker 3: question of whether the state attorney general can take the

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Speaker 3: power to prosecute away from local prosecutors who may disagree

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Speaker 3: with her on abortion. A second question is, to your point,

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Speaker 3: whether physicians are going to be willing to perform abortions

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Speaker 3: because at a minimum they would do so in a

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Speaker 3: climate of legal uncertainty, right, I mean, the state Attorney

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Speaker 3: general has an office that's subject to election, there are

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Speaker 3: other prosecutors who may try to press charges, and that

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Speaker 3: creates uncertainty. And we've seen to date that physicians have

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Speaker 3: been reluctant to try to intervene when there's doubt about

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Speaker 3: whether they can do so without legal risk to themselves,

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Speaker 3: and it seems that that could to certainly happen in

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Speaker 3: Arizona as well.

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Speaker 1: Yeah, I've been reading that in most states, even states

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Speaker 1: that have exceptions to protect the mother's life, that doctors

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Speaker 1: are reluctant to test those exceptions except in cases that

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Speaker 1: are so clear cut.

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Speaker 3: That's right, And the reason for that, again, especially with

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Speaker 3: life as exceptions, is that physicians have been unclear about

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Speaker 3: how close to death patients need to be before a

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Speaker 3: life exception can be invoked. And I think they're specially

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Speaker 3: concerned because you know, they're being second guests to prosecutors

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Speaker 3: who are very in some instances opposed to abortion and

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Speaker 3: suspicious of the motives of physicians invoking exceptions and Allspit's

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Speaker 3: worth emphasizing some prosecutors who believe that abortion is never

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Speaker 3: medically necessary, right. So in light of all of that,

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Speaker 3: I think we've seen a lot of reluctance on the

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Speaker 3: part of positions, and there's no reason to expect Arizona

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Speaker 3: will be any different.

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Speaker 1: Oh, can Mary stay with me? Coming up next, I'll

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Speaker 1: continue this conversation with Professor Mary Ziegler of u C.

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Speaker 1: Davis Law School. Will abortion basically beyond the ballot in

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Speaker 1: the presidential election? I'm June Grosso and you're listening to Bloomberg.

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Speaker 1: Arizona was already expected to be one of the most

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Speaker 1: closely contested states in November's presidential election, but a ruling

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Speaker 1: last week by the state Supreme Court instituting a near

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Speaker 1: total abortion ban and a law dating back to the

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Speaker 1: Civil War when women didn't have the right to vote

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Speaker 1: and Arizona wasn't even a state, it seems to have

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Speaker 1: added fuel to Democrats push to add a question to

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Speaker 1: the November ballot asking voters to approve a constitutional amendment

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Speaker 1: protecting the right to abortion until viability when a fetus

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Speaker 1: could survive outside the womb. Joining me is reproductive rights

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Speaker 1: expert Mary Ziegler, a professor at UC Davis Law School.

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Speaker 1: Ballot initiative campaign organizers say they have about one hundred

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Speaker 1: and twenty thousand more signatures than needed to get the

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Speaker 1: issues before for the voters in November, but the other

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Speaker 1: side is allowed to scrutinize and challenge the validity of

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Speaker 1: those signatures. Does that make it very hard to get

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Speaker 1: an initiative on the ballot?

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Speaker 3: I mean not to my knowledge. I mean I think

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Speaker 3: that we've seen, obviously, one of the kind of themes

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Speaker 3: you know, in recent years with ballot initiatives has been

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Speaker 3: efforts to get these things off the ballot by making

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Speaker 3: it harder, essentially efforts to make it harder for voters

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Speaker 3: to weigh in all together. To my knowledge that the

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Speaker 3: signature scrutiny requirement isn't particularly more effective in Arizona than

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Speaker 3: some of the other strategies we've seen in other states.

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Speaker 3: So I have no reason in particular to think that

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Speaker 3: the ballot initiative will fail in Arizona for that reason.

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Speaker 1: Can you talk about the language in these ballot initiatives

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Speaker 1: and how important that is, you know, I'm wondering if

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Speaker 1: in Florida it's almost too expansive and that the opponents

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Speaker 1: would be able to to, you know, attack it that way.

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Speaker 3: Yeah, I mean, in Florida as a viability limit, as

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Speaker 3: some other states have, it's not dissimilar from measures we've

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Speaker 3: seen passed in Michigan and Ohio, and the strategies we've

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Speaker 3: seen so far to attack the Florida measure also parallel

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Speaker 3: to the ones we've seen in the past. Essentially, we've

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Speaker 3: seen people saying that, you know, this is going to

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Speaker 3: actually intro make legal abortions people don't want legal or

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Speaker 3: introduce protections for gender affirming care or other things that

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Speaker 3: would be sort of unintended consequences of this kind of

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Speaker 3: strategy that hasn't worked to date, and we haven't really

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Speaker 3: seen I guess I would say there's nothing really new

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Speaker 3: in what the Florida opponents are doing as of yet.

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Speaker 3: So I think really in Florida, it's going to come

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Speaker 3: down to the fact that there's sixty percent threshold as

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Speaker 3: opposed to more than fifty percent threshold, because we haven't

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Speaker 3: yet seen a ballot initiative pass with more than like

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Speaker 3: fifty five to fifty nine percent of the vote. So

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Speaker 3: Florida has pulling suggesting that Flordians are more supportive of

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Speaker 3: abortion rights in their counter right parts and places like

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Speaker 3: Ohio or Michigan. But that's going to actually be necessary

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Speaker 3: to overcome the threshold in that state.

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Speaker 1: Former President Trump, who in the past has taken credit

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Speaker 1: for appointing the Supreme Court justice as who overturned Roe.

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Speaker 1: He made this statement about abortions. You know, everyone agrees

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Speaker 1: abortions should be left to the states. Also some ridiculous

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Speaker 1: things about how everyone wanted to we're on the right

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Speaker 1: and the left wanted to overturn Row. Was there anything

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Speaker 1: he said that was true?

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Speaker 3: Obviously not all scholars agreed Roe should be overturned. Most

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Speaker 3: people in the academy didn't want Roe to be overturned,

436
00:26:51,359 --> 00:26:54,679
Speaker 3: which isn't a tremendous surprise because most Americans didn't want

437
00:26:55,000 --> 00:26:58,200
Speaker 3: Roe to be overturned, and there's no reason to expect,

438
00:26:58,480 --> 00:27:02,720
Speaker 3: you know, legal scholars to the extreme outliers in that respect.

439
00:27:02,960 --> 00:27:05,119
Speaker 3: The other thing I think about Trump's statement was that

440
00:27:05,160 --> 00:27:10,080
Speaker 3: it was unenlightening. We know that you have former President

441
00:27:10,080 --> 00:27:14,760
Speaker 3: Trump's campaign officials and proxies who, even after his statement,

442
00:27:15,240 --> 00:27:20,119
Speaker 3: essentially said we think that former President Trump, if he's reelected,

443
00:27:20,600 --> 00:27:24,000
Speaker 3: is going to, you know, treat the Comstock Act as

444
00:27:24,040 --> 00:27:26,720
Speaker 3: a ban on abortion. And they said that even after

445
00:27:26,760 --> 00:27:30,439
Speaker 3: he issued this statement, and when various reporters contacted the

446
00:27:30,480 --> 00:27:33,520
Speaker 3: former president to ask about the Comstock Act. He essentially

447
00:27:33,560 --> 00:27:34,520
Speaker 3: didn't answer the question.

448
00:27:34,800 --> 00:27:36,240
Speaker 2: So we don't know.

449
00:27:36,160 --> 00:27:39,600
Speaker 3: What his saying he supports states rights mean when he has,

450
00:27:39,840 --> 00:27:41,920
Speaker 3: you know, proxy saying he's going to use this law

451
00:27:41,920 --> 00:27:44,359
Speaker 3: as an abortion band and he's not disavowing that. So

452
00:27:45,040 --> 00:27:47,160
Speaker 3: I think there were parts of his statement that were

453
00:27:47,200 --> 00:27:49,800
Speaker 3: false and other parts of his statement that were just confusing.

454
00:27:49,920 --> 00:27:52,600
Speaker 3: So I have no idea what he thinks. That I'm

455
00:27:52,600 --> 00:27:54,960
Speaker 3: known less in the dark than I was before he

456
00:27:55,040 --> 00:27:55,840
Speaker 3: issued the statement.

457
00:27:56,400 --> 00:27:59,840
Speaker 1: There's been a lot of talk about this nineteenth century law,

458
00:28:00,119 --> 00:28:03,920
Speaker 1: Comstock Act, and how it could be used to prevent abortion.

459
00:28:04,359 --> 00:28:06,479
Speaker 1: So tell us a little about the Act and how

460
00:28:06,520 --> 00:28:08,560
Speaker 1: it affects or could affect abortion.

461
00:28:09,000 --> 00:28:12,800
Speaker 3: So the Comstock Act is in nineteenth century obscenity law

462
00:28:12,920 --> 00:28:18,760
Speaker 3: that contemporary anti abortion groups interpret as an abortion ban

463
00:28:18,880 --> 00:28:21,399
Speaker 3: because it contained some language making it a crime to

464
00:28:21,480 --> 00:28:26,280
Speaker 3: mail or receive items intended, designed, or adapted for abortions.

465
00:28:26,600 --> 00:28:28,840
Speaker 3: It's not clear that that's what it means, but that's

466
00:28:28,840 --> 00:28:34,879
Speaker 3: what some anti abortion groups have argued. And notably, people

467
00:28:34,920 --> 00:28:38,840
Speaker 3: who have worked with former President Trump and his administration,

468
00:28:38,920 --> 00:28:42,560
Speaker 3: who've represented him in court, who are very close to him,

469
00:28:43,000 --> 00:28:45,920
Speaker 3: have been very vocal in the pages of the Washington Post,

470
00:28:45,960 --> 00:28:48,400
Speaker 3: the New York Times and elsewhere and saying that if

471
00:28:48,480 --> 00:28:51,960
Speaker 3: Trump is re elected, he's going to use the Comstock

472
00:28:52,040 --> 00:28:57,640
Speaker 3: Act as a ban on all abortions. Now, what's interesting

473
00:28:57,760 --> 00:29:01,000
Speaker 3: is that Trump himself hasn't said he will do this.

474
00:29:01,080 --> 00:29:03,520
Speaker 3: He also hasn't said he won't do this, even though

475
00:29:04,160 --> 00:29:07,840
Speaker 3: he's been asked directly by NPR and other news outlets,

476
00:29:07,840 --> 00:29:10,920
Speaker 3: and he just hasn't answered the question or disavowed this argument.

477
00:29:11,560 --> 00:29:13,800
Speaker 3: And so the upshot is that, you know, it's possible

478
00:29:13,800 --> 00:29:16,800
Speaker 3: he wouldn't do what his proxies are saying he will

479
00:29:16,800 --> 00:29:19,480
Speaker 3: do with the Comstock Act, it's also possible that he will.

480
00:29:19,600 --> 00:29:22,160
Speaker 3: And until we get a direct answer from his campaign,

481
00:29:22,200 --> 00:29:23,120
Speaker 3: we're just not going to know.

482
00:29:23,480 --> 00:29:26,880
Speaker 1: How would the federal government enforce the Comstocked Act, I mean,

483
00:29:26,880 --> 00:29:28,120
Speaker 1: would they be going through the mail?

484
00:29:28,880 --> 00:29:31,800
Speaker 3: So historically the Comstock Act, you know, you couldn't just

485
00:29:31,880 --> 00:29:34,760
Speaker 3: open people's mail. You needed a warrant. So some of

486
00:29:34,800 --> 00:29:37,080
Speaker 3: it depended on this then kind of chilling effect we've

487
00:29:37,080 --> 00:29:43,320
Speaker 3: described with physicians, where physicians were essentially people were refraining

488
00:29:43,360 --> 00:29:47,800
Speaker 3: from mailing items for fear of federal prosecution. Other than that,

489
00:29:48,080 --> 00:29:52,800
Speaker 3: We know that there were scenarios where people would essentially

490
00:29:53,000 --> 00:29:56,800
Speaker 3: entrap people. They would order pills, or they would order

491
00:29:56,880 --> 00:30:00,800
Speaker 3: items in the mail, and then when they receive those items,

492
00:30:00,840 --> 00:30:05,680
Speaker 3: they would then arrest the person for violating the Comstock Act.

493
00:30:05,920 --> 00:30:08,520
Speaker 3: We know that there was a lot of selective prosecution

494
00:30:09,160 --> 00:30:13,760
Speaker 3: under the Comstock Act, so essentially targeting of political opponents

495
00:30:14,320 --> 00:30:17,960
Speaker 3: as opposed to you know, just your random person getting

496
00:30:18,360 --> 00:30:21,520
Speaker 3: an item in the mail. We know that former Trump

497
00:30:21,560 --> 00:30:27,160
Speaker 3: officials who are interested in this campaign have said that

498
00:30:27,240 --> 00:30:33,280
Speaker 3: their plan is to prioritize the prosecution of those who

499
00:30:33,520 --> 00:30:38,280
Speaker 3: manufacture pills or are professional abortion providers. But we have

500
00:30:38,400 --> 00:30:41,240
Speaker 3: both historical examples and the kind of plans that have

501
00:30:41,320 --> 00:30:43,960
Speaker 3: been laid out that give us some insight into what's

502
00:30:44,040 --> 00:30:44,720
Speaker 3: likely to happen.

503
00:30:45,480 --> 00:30:49,200
Speaker 1: So, even if the Supreme Court rules in favor of

504
00:30:49,240 --> 00:30:53,200
Speaker 1: the FDA in the Myfi press Stone case, the Comstock

505
00:30:53,240 --> 00:30:56,840
Speaker 1: Act could still be used to get abortion pills off

506
00:30:56,840 --> 00:30:57,400
Speaker 1: the market.

507
00:30:57,880 --> 00:31:01,480
Speaker 3: Absolutely, Because it's very unlike that the Court is going

508
00:31:01,560 --> 00:31:06,200
Speaker 3: to definitively rule out that interpretation of the Comstock Act.

509
00:31:06,520 --> 00:31:11,120
Speaker 3: It's much more likely that the Court will essentially leave

510
00:31:11,160 --> 00:31:13,400
Speaker 3: that argument for another day. I think we're likely to

511
00:31:13,440 --> 00:31:19,040
Speaker 3: see Clarence Thomas or Samuel Alito reference that argument without

512
00:31:19,280 --> 00:31:21,080
Speaker 3: the rest of the Court weighing in on it one

513
00:31:21,120 --> 00:31:23,280
Speaker 3: way or another. So I think that argument is going

514
00:31:23,320 --> 00:31:25,680
Speaker 3: to be a live argument in the future, and I

515
00:31:25,720 --> 00:31:28,480
Speaker 3: think it's most likely that if the Court does rule

516
00:31:28,520 --> 00:31:32,800
Speaker 3: in favor of mithipristone in this case, it's likely going

517
00:31:32,880 --> 00:31:36,000
Speaker 3: to do it in the context of saying, you know,

518
00:31:36,120 --> 00:31:39,320
Speaker 3: essentially that the plaintiffs done have standing, which wouldn't definitively

519
00:31:39,400 --> 00:31:41,479
Speaker 3: rule out the Comstock Act in the future.

520
00:31:41,840 --> 00:31:46,920
Speaker 1: Right, are these streat Supreme courts with these radical decisions?

521
00:31:46,960 --> 00:31:51,320
Speaker 1: Are they moving abortion more even than it was before,

522
00:31:51,600 --> 00:31:54,080
Speaker 1: to the front of the presidential election?

523
00:31:54,600 --> 00:31:57,600
Speaker 3: I think so. They're also doing it in an interesting

524
00:31:57,600 --> 00:32:00,880
Speaker 3: way by putting themselves on the ballot. You know, you

525
00:32:00,880 --> 00:32:04,240
Speaker 3: have to remember that in both Arizona and Florida, some

526
00:32:04,280 --> 00:32:07,640
Speaker 3: of these justices are subject to retention election, and historically

527
00:32:08,320 --> 00:32:11,280
Speaker 3: incumbents win retention election most of the time. But they're

528
00:32:11,360 --> 00:32:16,600
Speaker 3: powerful counter examples. When you have a high salience issue

529
00:32:16,640 --> 00:32:20,000
Speaker 3: like abortion that voters are aware of, then sometimes justices

530
00:32:20,120 --> 00:32:23,920
Speaker 3: are kicked out right. So the justices will be on

531
00:32:23,960 --> 00:32:26,360
Speaker 3: the ballot, ballot initiatives will be on the ballot. The

532
00:32:26,400 --> 00:32:28,760
Speaker 3: stakes of those ballot initiatives are going to be very

533
00:32:28,880 --> 00:32:32,520
Speaker 3: high because in both states, like Arizona and Florida, there

534
00:32:32,560 --> 00:32:37,160
Speaker 3: will be people living in very different worlds right, people

535
00:32:37,160 --> 00:32:40,440
Speaker 3: who will be experiencing these bands firsthand for the first time.

536
00:32:40,840 --> 00:32:43,720
Speaker 3: And that will, I think, have consequences for the election.

537
00:32:43,880 --> 00:32:46,000
Speaker 3: Whether it's enough, you know, for example, to push Joe

538
00:32:46,000 --> 00:32:47,959
Speaker 3: Biden over the line in these states, I don't know,

539
00:32:48,560 --> 00:32:50,960
Speaker 3: but it's hard to imagine that it won't move the needle.

540
00:32:51,520 --> 00:32:54,080
Speaker 1: Well. I think there's little doubt that abortion is going

541
00:32:54,120 --> 00:32:58,200
Speaker 1: to be one of the top or top two issues

542
00:32:58,240 --> 00:33:01,920
Speaker 1: this presidential election. Thanks so much, Mary. That's Professor Mary

543
00:33:01,960 --> 00:33:05,200
Speaker 1: Ziegler of UC Davis Law School. And that's it for

544
00:33:05,240 --> 00:33:07,880
Speaker 1: this edition of The Bloomberg Law Show. Remember you can

545
00:33:07,920 --> 00:33:11,160
Speaker 1: always get the latest legal news on our Bloomberg Law podcasts.

546
00:33:11,400 --> 00:33:14,440
Speaker 1: You can find them on Apple Podcasts, Spotify, and at

547
00:33:14,600 --> 00:33:19,640
Speaker 1: www dot Bloomberg dot com, slash podcast Slash Law, And

548
00:33:19,720 --> 00:33:22,760
Speaker 1: remember to tune into The Bloomberg Law Show every weeknight

549
00:33:22,840 --> 00:33:26,320
Speaker 1: at ten pm Wall Street Time. I'm June Grosso, and

550
00:33:26,360 --> 00:33:27,840
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