WEBVTT - Justice Department's High Stakes Suit Over Abortion

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>The Justice Department stepped in on Thursday in an effort

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<v Speaker 1>to block the country's strictest abortion law in Texas, setting

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<v Speaker 1>up a high stakes legal battle after the Supreme Court

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<v Speaker 1>refused to step in. Here's Attorney General Merrick Garland. The

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<v Speaker 1>obvious and expressly acknowledged intention of this statutory scheme is

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<v Speaker 1>to prevent women from exercising their constitutional rights by thwarting

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<v Speaker 1>judicial review for as long as possible. The Texas law

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<v Speaker 1>is the strictest ban on abortion since it was legalized

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<v Speaker 1>in the US a half century ago, banning abortions after

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<v Speaker 1>about six weeks, with no exception for rape or incest.

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<v Speaker 1>My guest is Leah Littman, a professor of constitutional law

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<v Speaker 1>at the University of Michigan Law School. Why do you

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<v Speaker 1>think the Conservative Justice is a out a law which

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<v Speaker 1>contradicts their precedence to go into effect? Do you buy

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<v Speaker 1>their explanation? So? What I don't buy is that the

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<v Speaker 1>mere existence of some procedural uncertainties was enough to leave

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<v Speaker 1>them not to actually enjoin the law. The Supreme Court

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<v Speaker 1>has enjoined laws even in the face of considerable procedural uncertainty. So,

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<v Speaker 1>for example, when the Court enjoined New York's response to

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<v Speaker 1>the coronavirus, the response that joined the New York policy

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<v Speaker 1>wasn't even an effect, but the Supreme Court said, well,

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<v Speaker 1>it might go back into effect in the future. So

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<v Speaker 1>there procedural uncertainty wasn't enough to stop the Court from

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<v Speaker 1>granting relief to parties where it believed their constitutional rights

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<v Speaker 1>were being infringed. I do think the fact that this

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<v Speaker 1>case involved abortion did affect the justices decisions and actions.

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<v Speaker 1>I think if this statute was written in a way

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<v Speaker 1>that allowed anyone to sue people who owned unlicensed handguns

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<v Speaker 1>rather than allowing anyone to see abortion providers, I don't

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<v Speaker 1>think the procedural questions in this case would have stopped

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<v Speaker 1>the Supreme Court from enjoining that law. But is the

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<v Speaker 1>way the law was crafted, with private people basically playing

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<v Speaker 1>bounty hunters. Is that mechanism what seems to be causing

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<v Speaker 1>difficulty in the courts. Yes, absolutely so. The fact that

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<v Speaker 1>the state law authorizes private citizens but not see its

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<v Speaker 1>citizens to sue to enforce the law was deliberately designed

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<v Speaker 1>both to create uncertainties about who could be sued in

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<v Speaker 1>order to prevent the law from going into effect and

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<v Speaker 1>possibly prevents the law from being challenged at all. My

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<v Speaker 1>point is only that the mere existance of some procedural

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<v Speaker 1>uncertainty on other issues and on other topics hasn't stopped

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<v Speaker 1>the Supreme Court before. Some legal experts are calling this

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<v Speaker 1>lawsuit against Texas a ail mary pass, a delaying tactic.

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<v Speaker 1>Do you agree? I think, based on the history and

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<v Speaker 1>practice of the federal government suing states when they are

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<v Speaker 1>engaged in unlawful conducts, particularly unlawful conduct that is existent

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<v Speaker 1>with the demands of the federal program, I don't think

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<v Speaker 1>this is some completely outlandish tactic out of left field.

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<v Speaker 1>I think it has a very strong basis and law

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<v Speaker 1>that doesn't necessarily need it too like to succeed. But

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<v Speaker 1>I think it was right for the federal government pilates.

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<v Speaker 1>What are the grounds that the Justice Department is suing

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<v Speaker 1>Texas under? So the United States is arguing that it

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<v Speaker 1>can sue Texas for really two distinct reasons. The first

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<v Speaker 1>set of reasons are because the Texas law interferes with

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<v Speaker 1>access to abortion and is therefore in violation of the

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<v Speaker 1>Supreme Court cases, saying that people have the right to

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<v Speaker 1>opinion an abortion before viability. And what the United States

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<v Speaker 1>is asserting is that it can effectively raise the rights

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<v Speaker 1>and raise the injury to the people who are denied

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<v Speaker 1>access to abortion in Texas right now. And it can

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<v Speaker 1>do that because the state has deliberately sought to insulate

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<v Speaker 1>itself from judicial review and enforced and an act in

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<v Speaker 1>unconstitutional law. So the United States says that only are

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<v Speaker 1>we asserting the rights of people who are denied access

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<v Speaker 1>to abortion, we're also enforcing the supremacy of federal law

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<v Speaker 1>and the supremacy of the Constitution. And that is an

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<v Speaker 1>interest that we the United States, as the federal government

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<v Speaker 1>found by the Constitution and the supremacy of federal law

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<v Speaker 1>can rate. The second set of reasons are that the

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<v Speaker 1>Texas law interferes with the ability of the United States

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<v Speaker 1>to carry out a variety of federal programs that require

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<v Speaker 1>federal contractors or federal officers in certain circumstances to assist

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<v Speaker 1>people in obtaining abortions if they want them, so, for example,

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<v Speaker 1>people who are part of the Federal Job Corps, people

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<v Speaker 1>who are in federal prison, people in the military, various

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<v Speaker 1>federal regulations or policies say, if people in the federal

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<v Speaker 1>governments custody or in the federal programs desire and our

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<v Speaker 1>constitution only entitled to have an abortion, then the federal

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<v Speaker 1>government has to assist them in getting one. And so

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<v Speaker 1>the state law that's possibly subjecting those federal officers and

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<v Speaker 1>federal contractors to liability is interfering with federal programs, and

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<v Speaker 1>that's something that states can't do. Do you see any

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<v Speaker 1>procedural issues that Texas might raise, for example, Standing Texas

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<v Speaker 1>is absolutely going to raise a host of arguments about

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<v Speaker 1>why the federal court can't or shouldn't hear this case.

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<v Speaker 1>You know, one thing they will argue is that the

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<v Speaker 1>United States hasn't truly been injured and that the United

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<v Speaker 1>States can't assert the rights of individual people who want

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<v Speaker 1>to obtain abortions. And I guess what I would say is, yes,

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<v Speaker 1>maybe it's not typically the case that the federal government

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<v Speaker 1>is bringing lawsuits to enforce or vindicate people's rights. But

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<v Speaker 1>it's also not typically the case that states deliberately engineer

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<v Speaker 1>their laws to deprive people of their constitutional rights and

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<v Speaker 1>makes the law unchallengeable in court. So yes, lawsuit is

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<v Speaker 1>new in some respects, but it's new because the underlying

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<v Speaker 1>Texas law that it's speaking to challenge is itself so

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<v Speaker 1>unprecedented in novels. The second set of interest, however, the

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<v Speaker 1>idea that this Texas law interferes with federal policies and programs.

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<v Speaker 1>That's pretty well established that the United States could do

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<v Speaker 1>when state law is interfering or undermining some federal program

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<v Speaker 1>or potentially interfering with federal officers or federal contractors. We're

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<v Speaker 1>assuming that this case will eventually reach the Supreme Court.

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<v Speaker 1>How do you think the justices will align? I mean,

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<v Speaker 1>I think, based on what they did in the abortion

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<v Speaker 1>providers lawsuit, as well as their hostility to the abortion right,

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<v Speaker 1>I think it wouldn't be unreasonable to expect that the

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<v Speaker 1>Supreme Court will not allow the United States to get

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<v Speaker 1>this abjunction against the Texas law. But that's not because

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<v Speaker 1>the United States isn't right on the law. It's because, again,

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<v Speaker 1>this Texas law is so unique that there hasn't been

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<v Speaker 1>a lawsuit under precisely these circumstances that the Supreme Court

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<v Speaker 1>might feel compelled to follow, and in part because of that,

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<v Speaker 1>their skepticism of the underlying constitutional right might lead them

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<v Speaker 1>to not permit this lawsuit to go forward. What do

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<v Speaker 1>you think of constitutional law scholar Larry Tribe suggestion that

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<v Speaker 1>the Justice Department could use a section of the Criminal

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<v Speaker 1>Code designed to go after the ku Klux Klan to

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<v Speaker 1>prosecute individuals who are trying to enforce the Texas abortion law.

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<v Speaker 1>So that's possible. There are some procedural issues with bringing

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<v Speaker 1>in that case, for example, whether the private individuals are

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<v Speaker 1>persons acting undercolor of state law for purposes of the

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<v Speaker 1>KKK Act. And more importantly, I think even if the

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<v Speaker 1>United States were to win a lawsuit against some individuals

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<v Speaker 1>who might enforce the law, that wouldn't be a lawsuit

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<v Speaker 1>that resulted in the court ruling that no one in

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<v Speaker 1>any capacity could enforce the law. That's what the abortion

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<v Speaker 1>providers are trying to get in this case that the

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<v Speaker 1>Supreme Court hasn't allowed to proceed. And merely doing you know,

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<v Speaker 1>one individual, let's say John Doe, from doing to enforce

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<v Speaker 1>the Texas law wouldn't prevent Jane Doe or any other

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<v Speaker 1>John Doe from enforcing it. So merely getting a lawsuit

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<v Speaker 1>saying John Doe would be in violation of the KKK

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<v Speaker 1>asked if he brought a lawsuit to enforce the statute,

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<v Speaker 1>might not prevent other people from trying to enforce the

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<v Speaker 1>Texas Statute. I want to turn to the state court

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<v Speaker 1>proceedings for a moment, because abortion rights advocates are going

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<v Speaker 1>to state courts in Texas. They're seeking temporary court orders

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<v Speaker 1>against the group Texas Right to Life, and some activists

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<v Speaker 1>who have been vocal. Is that a valuable effort. It's valuable,

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<v Speaker 1>but it's not going to bring back abortion access in Texas.

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<v Speaker 1>And we know that because the abortion providers have already

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<v Speaker 1>obtained temporary restraining orders against Texas Right to Life and

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<v Speaker 1>a few individuals. But as I was saying, what the

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<v Speaker 1>temporary restraining orders do is they only protect that one organization,

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<v Speaker 1>Texas Right to Life, or that one individual, John Doe,

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<v Speaker 1>from bringing a lawsuit. They don't prevent any number of

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<v Speaker 1>other individuals from doing the abortion providers, and so they

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<v Speaker 1>don't actually allow the abortion providers to reopen and start

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<v Speaker 1>offering abortions more than six weeks after someone's last period.

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<v Speaker 1>And we know that again because the abortion providers pay

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<v Speaker 1>these arrows and yet they are still not able to

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<v Speaker 1>offer abortion. I've read that the abortion rights advocates are

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<v Speaker 1>hoping that this will be a vehicle for them to

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<v Speaker 1>get a ruling from the Texas Supreme Court striking down

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<v Speaker 1>parts of the law under the Texas Constitution. Is that possible, yes,

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<v Speaker 1>But that requires the plaintiffs to be able to get

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<v Speaker 1>a case to the Texas Supreme Court where the court

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<v Speaker 1>could actually prevent the state from enforcing the law. And

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<v Speaker 1>the same procedural issues that the United States Supreme Court

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<v Speaker 1>identified with the case brought in federal court would also

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<v Speaker 1>apply in state court. And just given who's on the

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<v Speaker 1>Texas Supreme Court, I don't really see that going much

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<v Speaker 1>better for the providers. Possible it would, but the same

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<v Speaker 1>issues that applied in the federal court proceeding would apply

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<v Speaker 1>in the state court proceedings. What impact does the Fifth

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<v Speaker 1>Circuit's decision standing the stay have. So the Fifth Circuit

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<v Speaker 1>decision basically thus made official what had already been going on.

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<v Speaker 1>So what the Fifth Circuit had done was put on

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<v Speaker 1>hold the district court proceedings that were on the precipice

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<v Speaker 1>of considering whether to enjoin the Texas law, and before

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<v Speaker 1>the law went into effects, the Fifth Circuit had issued

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<v Speaker 1>a temporary or administrative stay, putting those proceedings on hold,

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<v Speaker 1>which prevented the district court from considering the provider's request

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<v Speaker 1>for an injunction. Now, I Fifth Circuits just kind of

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<v Speaker 1>made that official. They issued an opinion saying, yes, these

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<v Speaker 1>proceedings are stay, that is, they're put on poles and

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<v Speaker 1>we the Fifth Circuit will determine and whether the disrecord

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<v Speaker 1>was correct to allow the abortion providers to sue various

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<v Speaker 1>state officials, or whether instead those officials are immuned from

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<v Speaker 1>the lawsuits. I want to get your reaction to what

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<v Speaker 1>Texas Governor Greg Abbott said. He said that women who

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<v Speaker 1>are raped still have six weeks to get an abortion,

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<v Speaker 1>and also that Texas would work tirelessly to get rapists

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<v Speaker 1>off the street. I'm not even sure where to start

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<v Speaker 1>with how absurd that statement is versus the law applies

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<v Speaker 1>basically from six weeks from the date from a person's

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<v Speaker 1>last period, so it's not six weeks after gestation, it

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<v Speaker 1>is six weeks after your last period. That might mean

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<v Speaker 1>it is impossible for tests to detect whether someone is

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<v Speaker 1>pregnant in that window, and that would make it prohibitively

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<v Speaker 1>difficult to get an abortion during that window, and Texas

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<v Speaker 1>also imposes a bunch of other requirements on people, multiple appointments,

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<v Speaker 1>waiting periods, and so on that could easily push someone

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<v Speaker 1>outside of the six weeks from their last period window,

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<v Speaker 1>even if they tried to get the abortion as soon

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<v Speaker 1>as they are able to. Second, is the idea that

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<v Speaker 1>Texas is all of a sudden going to be able

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<v Speaker 1>to prohibit rate raises questions one, why haven't they tried

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<v Speaker 1>to do that before? And seconds, That's just not how

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<v Speaker 1>it works. You know, Texas can say all of it wants,

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<v Speaker 1>but rape is still a problem, and sexual assault is

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<v Speaker 1>still a problem in this country, and Texas isn't going

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<v Speaker 1>to be able to eradicate it just by the governor

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<v Speaker 1>announcing that he would like to. Does this indicate that

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<v Speaker 1>anti abortion activists have finally found and crafted a mechanism,

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<v Speaker 1>a law that can stop abortions, and that you know,

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<v Speaker 1>other states are now going to follow them. I would

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<v Speaker 1>frame it in slightly different terms. I would say anti

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<v Speaker 1>abortion ASTs activists have finally arrived at a law and

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<v Speaker 1>finally constructed a Supreme court that will allow them to

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<v Speaker 1>ban abortion, possibly without the Supreme Court ever having to

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<v Speaker 1>formally over rule gro versus way. Thanks for being on

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<v Speaker 1>the Bloomberg Laws Show. Leah. That's Professor Lea Littman of

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<v Speaker 1>the University of Michigan Law School. And that's it for

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<v Speaker 1>this edition of the Bloomberg Laws Show. I'm June Grosso

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<v Speaker 1>and you're listening to Bloomberg