Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: The Justice Department stepped in on Thursday in an effort
Speaker 1: to block the country's strictest abortion law in Texas, setting
Speaker 1: up a high stakes legal battle after the Supreme Court
Speaker 1: refused to step in. Here's Attorney General Merrick Garland. The
Speaker 1: obvious and expressly acknowledged intention of this statutory scheme is
Speaker 1: to prevent women from exercising their constitutional rights by thwarting
Speaker 1: judicial review for as long as possible. The Texas law
Speaker 1: is the strictest ban on abortion since it was legalized
Speaker 1: in the US a half century ago, banning abortions after
Speaker 1: about six weeks, with no exception for rape or incest.
Speaker 1: My guest is Leah Littman, a professor of constitutional law
Speaker 1: at the University of Michigan Law School. Why do you
Speaker 1: think the Conservative Justice is a out a law which
Speaker 1: contradicts their precedence to go into effect? Do you buy
Speaker 1: their explanation? So? What I don't buy is that the
Speaker 1: mere existence of some procedural uncertainties was enough to leave
Speaker 1: them not to actually enjoin the law. The Supreme Court
Speaker 1: has enjoined laws even in the face of considerable procedural uncertainty. So,
Speaker 1: for example, when the Court enjoined New York's response to
Speaker 1: the coronavirus, the response that joined the New York policy
Speaker 1: wasn't even an effect, but the Supreme Court said, well,
Speaker 1: it might go back into effect in the future. So
Speaker 1: there procedural uncertainty wasn't enough to stop the Court from
Speaker 1: granting relief to parties where it believed their constitutional rights
Speaker 1: were being infringed. I do think the fact that this
Speaker 1: case involved abortion did affect the justices decisions and actions.
Speaker 1: I think if this statute was written in a way
Speaker 1: that allowed anyone to sue people who owned unlicensed handguns
Speaker 1: rather than allowing anyone to see abortion providers, I don't
Speaker 1: think the procedural questions in this case would have stopped
Speaker 1: the Supreme Court from enjoining that law. But is the
Speaker 1: way the law was crafted, with private people basically playing
Speaker 1: bounty hunters. Is that mechanism what seems to be causing
Speaker 1: difficulty in the courts. Yes, absolutely so. The fact that
Speaker 1: the state law authorizes private citizens but not see its
Speaker 1: citizens to sue to enforce the law was deliberately designed
Speaker 1: both to create uncertainties about who could be sued in
Speaker 1: order to prevent the law from going into effect and
Speaker 1: possibly prevents the law from being challenged at all. My
Speaker 1: point is only that the mere existance of some procedural
Speaker 1: uncertainty on other issues and on other topics hasn't stopped
Speaker 1: the Supreme Court before. Some legal experts are calling this
Speaker 1: lawsuit against Texas a ail mary pass, a delaying tactic.
Speaker 1: Do you agree? I think, based on the history and
Speaker 1: practice of the federal government suing states when they are
Speaker 1: engaged in unlawful conducts, particularly unlawful conduct that is existent
Speaker 1: with the demands of the federal program, I don't think
Speaker 1: this is some completely outlandish tactic out of left field.
Speaker 1: I think it has a very strong basis and law
Speaker 1: that doesn't necessarily need it too like to succeed. But
Speaker 1: I think it was right for the federal government pilates.
Speaker 1: What are the grounds that the Justice Department is suing
Speaker 1: Texas under? So the United States is arguing that it
Speaker 1: can sue Texas for really two distinct reasons. The first
Speaker 1: set of reasons are because the Texas law interferes with
Speaker 1: access to abortion and is therefore in violation of the
Speaker 1: Supreme Court cases, saying that people have the right to
Speaker 1: opinion an abortion before viability. And what the United States
Speaker 1: is asserting is that it can effectively raise the rights
Speaker 1: and raise the injury to the people who are denied
Speaker 1: access to abortion in Texas right now. And it can
Speaker 1: do that because the state has deliberately sought to insulate
Speaker 1: itself from judicial review and enforced and an act in
Speaker 1: unconstitutional law. So the United States says that only are
Speaker 1: we asserting the rights of people who are denied access
Speaker 1: to abortion, we're also enforcing the supremacy of federal law
Speaker 1: and the supremacy of the Constitution. And that is an
Speaker 1: interest that we the United States, as the federal government
Speaker 1: found by the Constitution and the supremacy of federal law
Speaker 1: can rate. The second set of reasons are that the
Speaker 1: Texas law interferes with the ability of the United States
Speaker 1: to carry out a variety of federal programs that require
Speaker 1: federal contractors or federal officers in certain circumstances to assist
Speaker 1: people in obtaining abortions if they want them, so, for example,
Speaker 1: people who are part of the Federal Job Corps, people
Speaker 1: who are in federal prison, people in the military, various
Speaker 1: federal regulations or policies say, if people in the federal
Speaker 1: governments custody or in the federal programs desire and our
Speaker 1: constitution only entitled to have an abortion, then the federal
Speaker 1: government has to assist them in getting one. And so
Speaker 1: the state law that's possibly subjecting those federal officers and
Speaker 1: federal contractors to liability is interfering with federal programs, and
Speaker 1: that's something that states can't do. Do you see any
Speaker 1: procedural issues that Texas might raise, for example, Standing Texas
Speaker 1: is absolutely going to raise a host of arguments about
Speaker 1: why the federal court can't or shouldn't hear this case.
Speaker 1: You know, one thing they will argue is that the
Speaker 1: United States hasn't truly been injured and that the United
Speaker 1: States can't assert the rights of individual people who want
Speaker 1: to obtain abortions. And I guess what I would say is, yes,
Speaker 1: maybe it's not typically the case that the federal government
Speaker 1: is bringing lawsuits to enforce or vindicate people's rights. But
Speaker 1: it's also not typically the case that states deliberately engineer
Speaker 1: their laws to deprive people of their constitutional rights and
Speaker 1: makes the law unchallengeable in court. So yes, lawsuit is
Speaker 1: new in some respects, but it's new because the underlying
Speaker 1: Texas law that it's speaking to challenge is itself so
Speaker 1: unprecedented in novels. The second set of interest, however, the
Speaker 1: idea that this Texas law interferes with federal policies and programs.
Speaker 1: That's pretty well established that the United States could do
Speaker 1: when state law is interfering or undermining some federal program
Speaker 1: or potentially interfering with federal officers or federal contractors. We're
Speaker 1: assuming that this case will eventually reach the Supreme Court.
Speaker 1: How do you think the justices will align? I mean,
Speaker 1: I think, based on what they did in the abortion
Speaker 1: providers lawsuit, as well as their hostility to the abortion right,
Speaker 1: I think it wouldn't be unreasonable to expect that the
Speaker 1: Supreme Court will not allow the United States to get
Speaker 1: this abjunction against the Texas law. But that's not because
Speaker 1: the United States isn't right on the law. It's because, again,
Speaker 1: this Texas law is so unique that there hasn't been
Speaker 1: a lawsuit under precisely these circumstances that the Supreme Court
Speaker 1: might feel compelled to follow, and in part because of that,
Speaker 1: their skepticism of the underlying constitutional right might lead them
Speaker 1: to not permit this lawsuit to go forward. What do
Speaker 1: you think of constitutional law scholar Larry Tribe suggestion that
Speaker 1: the Justice Department could use a section of the Criminal
Speaker 1: Code designed to go after the ku Klux Klan to
Speaker 1: prosecute individuals who are trying to enforce the Texas abortion law.
Speaker 1: So that's possible. There are some procedural issues with bringing
Speaker 1: in that case, for example, whether the private individuals are
Speaker 1: persons acting undercolor of state law for purposes of the
Speaker 1: KKK Act. And more importantly, I think even if the
Speaker 1: United States were to win a lawsuit against some individuals
Speaker 1: who might enforce the law, that wouldn't be a lawsuit
Speaker 1: that resulted in the court ruling that no one in
Speaker 1: any capacity could enforce the law. That's what the abortion
Speaker 1: providers are trying to get in this case that the
Speaker 1: Supreme Court hasn't allowed to proceed. And merely doing you know,
Speaker 1: one individual, let's say John Doe, from doing to enforce
Speaker 1: the Texas law wouldn't prevent Jane Doe or any other
Speaker 1: John Doe from enforcing it. So merely getting a lawsuit
Speaker 1: saying John Doe would be in violation of the KKK
Speaker 1: asked if he brought a lawsuit to enforce the statute,
Speaker 1: might not prevent other people from trying to enforce the
Speaker 1: Texas Statute. I want to turn to the state court
Speaker 1: proceedings for a moment, because abortion rights advocates are going
Speaker 1: to state courts in Texas. They're seeking temporary court orders
Speaker 1: against the group Texas Right to Life, and some activists
Speaker 1: who have been vocal. Is that a valuable effort. It's valuable,
Speaker 1: but it's not going to bring back abortion access in Texas.
Speaker 1: And we know that because the abortion providers have already
Speaker 1: obtained temporary restraining orders against Texas Right to Life and
Speaker 1: a few individuals. But as I was saying, what the
Speaker 1: temporary restraining orders do is they only protect that one organization,
Speaker 1: Texas Right to Life, or that one individual, John Doe,
Speaker 1: from bringing a lawsuit. They don't prevent any number of
Speaker 1: other individuals from doing the abortion providers, and so they
Speaker 1: don't actually allow the abortion providers to reopen and start
Speaker 1: offering abortions more than six weeks after someone's last period.
Speaker 1: And we know that again because the abortion providers pay
Speaker 1: these arrows and yet they are still not able to
Speaker 1: offer abortion. I've read that the abortion rights advocates are
Speaker 1: hoping that this will be a vehicle for them to
Speaker 1: get a ruling from the Texas Supreme Court striking down
Speaker 1: parts of the law under the Texas Constitution. Is that possible, yes,
Speaker 1: But that requires the plaintiffs to be able to get
Speaker 1: a case to the Texas Supreme Court where the court
Speaker 1: could actually prevent the state from enforcing the law. And
Speaker 1: the same procedural issues that the United States Supreme Court
Speaker 1: identified with the case brought in federal court would also
Speaker 1: apply in state court. And just given who's on the
Speaker 1: Texas Supreme Court, I don't really see that going much
Speaker 1: better for the providers. Possible it would, but the same
Speaker 1: issues that applied in the federal court proceeding would apply
Speaker 1: in the state court proceedings. What impact does the Fifth
Speaker 1: Circuit's decision standing the stay have. So the Fifth Circuit
Speaker 1: decision basically thus made official what had already been going on.
Speaker 1: So what the Fifth Circuit had done was put on
Speaker 1: hold the district court proceedings that were on the precipice
Speaker 1: of considering whether to enjoin the Texas law, and before
Speaker 1: the law went into effects, the Fifth Circuit had issued
Speaker 1: a temporary or administrative stay, putting those proceedings on hold,
Speaker 1: which prevented the district court from considering the provider's request
Speaker 1: for an injunction. Now, I Fifth Circuits just kind of
Speaker 1: made that official. They issued an opinion saying, yes, these
Speaker 1: proceedings are stay, that is, they're put on poles and
Speaker 1: we the Fifth Circuit will determine and whether the disrecord
Speaker 1: was correct to allow the abortion providers to sue various
Speaker 1: state officials, or whether instead those officials are immuned from
Speaker 1: the lawsuits. I want to get your reaction to what
Speaker 1: Texas Governor Greg Abbott said. He said that women who
Speaker 1: are raped still have six weeks to get an abortion,
Speaker 1: and also that Texas would work tirelessly to get rapists
Speaker 1: off the street. I'm not even sure where to start
Speaker 1: with how absurd that statement is versus the law applies
Speaker 1: basically from six weeks from the date from a person's
Speaker 1: last period, so it's not six weeks after gestation, it
Speaker 1: is six weeks after your last period. That might mean
Speaker 1: it is impossible for tests to detect whether someone is
Speaker 1: pregnant in that window, and that would make it prohibitively
Speaker 1: difficult to get an abortion during that window, and Texas
Speaker 1: also imposes a bunch of other requirements on people, multiple appointments,
Speaker 1: waiting periods, and so on that could easily push someone
Speaker 1: outside of the six weeks from their last period window,
Speaker 1: even if they tried to get the abortion as soon
Speaker 1: as they are able to. Second, is the idea that
Speaker 1: Texas is all of a sudden going to be able
Speaker 1: to prohibit rate raises questions one, why haven't they tried
Speaker 1: to do that before? And seconds, That's just not how
Speaker 1: it works. You know, Texas can say all of it wants,
Speaker 1: but rape is still a problem, and sexual assault is
Speaker 1: still a problem in this country, and Texas isn't going
Speaker 1: to be able to eradicate it just by the governor
Speaker 1: announcing that he would like to. Does this indicate that
Speaker 1: anti abortion activists have finally found and crafted a mechanism,
Speaker 1: a law that can stop abortions, and that you know,
Speaker 1: other states are now going to follow them. I would
Speaker 1: frame it in slightly different terms. I would say anti
Speaker 1: abortion ASTs activists have finally arrived at a law and
Speaker 1: finally constructed a Supreme court that will allow them to
Speaker 1: ban abortion, possibly without the Supreme Court ever having to
Speaker 1: formally over rule gro versus way. Thanks for being on
Speaker 1: the Bloomberg Laws Show. Leah. That's Professor Lea Littman of
Speaker 1: the University of Michigan Law School. And that's it for
Speaker 1: this edition of the Bloomberg Laws Show. I'm June Grosso
Speaker 1: and you're listening to Bloomberg