1 00:00:00,160 --> 00:00:04,680 Speaker 1: This is Bloomberg Law with June Grasso. The coronavirus is 2 00:00:04,800 --> 00:00:08,399 Speaker 1: ramping up America's abortion war as red and blue states 3 00:00:08,400 --> 00:00:11,719 Speaker 1: spar over whether the procedure is essential. Amid a flurry 4 00:00:11,760 --> 00:00:14,560 Speaker 1: of judicial rulings in the state of Texas, the battle 5 00:00:14,600 --> 00:00:17,880 Speaker 1: has reached the Fifth Circuit Court of Appeals, joining me 6 00:00:17,880 --> 00:00:21,600 Speaker 1: as Michelle Goodwin, professor at the University of California Irvine 7 00:00:21,680 --> 00:00:24,520 Speaker 1: School of Law and author of the new book Policing 8 00:00:24,560 --> 00:00:29,080 Speaker 1: the Womb. Michelle, how would you characterize what's happening now 9 00:00:29,200 --> 00:00:32,200 Speaker 1: over abortion rights while the country is in the middle 10 00:00:32,280 --> 00:00:37,160 Speaker 1: of a public health crisis. Well, abortion rights have become 11 00:00:37,440 --> 00:00:45,960 Speaker 1: a convenient political proxy for carrying out platforms against people's 12 00:00:46,000 --> 00:00:49,560 Speaker 1: constitutional rights to in their pregnancy, is sort of. The 13 00:00:49,680 --> 00:00:55,240 Speaker 1: coronavirus really has become that proxy or convenient scapegoat, if 14 00:00:55,280 --> 00:00:59,280 Speaker 1: you will, for carrying out an agenda that up ends 15 00:00:59,360 --> 00:01:05,319 Speaker 1: and ut really women's constitutional rights to in their pregnancies. 16 00:01:05,520 --> 00:01:10,440 Speaker 1: And it's quite unfortunate because what states that are looking 17 00:01:10,480 --> 00:01:13,760 Speaker 1: to do it in these times are claiming is that 18 00:01:13,920 --> 00:01:18,280 Speaker 1: this medical procedure to which there is a constitutional right 19 00:01:18,880 --> 00:01:23,520 Speaker 1: is not essential. Essentially, a constitutional right is not essential. 20 00:01:23,600 --> 00:01:28,680 Speaker 1: A medical constitutional rights, they're saying is not essential. Is 21 00:01:28,720 --> 00:01:32,480 Speaker 1: that the basic argument in all these cases, and what 22 00:01:32,560 --> 00:01:36,960 Speaker 1: are the challengers responses, So this is a basic claimant, 23 00:01:37,080 --> 00:01:39,919 Speaker 1: you know, they're suggesting that this really isn't about women 24 00:01:39,959 --> 00:01:43,360 Speaker 1: and it's not about their constitutional rights. What this really 25 00:01:43,560 --> 00:01:48,240 Speaker 1: is as part of pandemic preparedness, that it's important not 26 00:01:48,320 --> 00:01:55,720 Speaker 1: to divert resources away, medical resources, away from addressing coronavirus, 27 00:01:55,760 --> 00:01:59,280 Speaker 1: and that that's where attention should be in Texas, but 28 00:01:59,520 --> 00:02:04,080 Speaker 1: need while in Texas, while there's an effort to close 29 00:02:04,160 --> 00:02:08,080 Speaker 1: abortion clinics and make sure that doctors who perform the 30 00:02:08,280 --> 00:02:12,800 Speaker 1: services cannot do so, Meanwhile, gun stores are open and 31 00:02:12,840 --> 00:02:16,440 Speaker 1: so are other places that people can go to. Presumably 32 00:02:17,000 --> 00:02:22,080 Speaker 1: those are essential services being able to pick up a 33 00:02:22,120 --> 00:02:26,840 Speaker 1: gun during these times, and not an individual's ability to 34 00:02:27,000 --> 00:02:30,440 Speaker 1: terminate a pregnancy. Now, some states are saying, well, so 35 00:02:30,560 --> 00:02:35,600 Speaker 1: long as this is an elective abortion, such as an abortion, 36 00:02:35,680 --> 00:02:38,960 Speaker 1: that's not really needed. But the state really shouldn't be 37 00:02:39,120 --> 00:02:45,160 Speaker 1: gerrymandering in any way reproductive health and determining which abortions 38 00:02:45,200 --> 00:02:49,280 Speaker 1: happen to be elective, in which abortions happen to be essential. 39 00:02:49,320 --> 00:02:52,480 Speaker 1: And here's a reason why. In states, there would be 40 00:02:52,720 --> 00:02:55,480 Speaker 1: some states would say, well, an abortion that's pursuing to 41 00:02:55,600 --> 00:02:59,440 Speaker 1: a rape or incest happens to be essential. But one 42 00:02:59,480 --> 00:03:02,680 Speaker 1: of the things that we know through statistics over time 43 00:03:03,080 --> 00:03:07,160 Speaker 1: that are reliable and reliable empirical data, is that people 44 00:03:07,200 --> 00:03:10,560 Speaker 1: who are raped oftentimes do not report their rapes. That 45 00:03:10,680 --> 00:03:13,200 Speaker 1: doesn't mean that they haven't been raped, doesn't mean that 46 00:03:13,240 --> 00:03:17,520 Speaker 1: they're not pregnant because of a rape. They simply sometimes 47 00:03:17,560 --> 00:03:21,560 Speaker 1: do not report it for fear of their own safety, 48 00:03:21,600 --> 00:03:24,960 Speaker 1: of harm to their families, any number of reasons which 49 00:03:24,960 --> 00:03:28,720 Speaker 1: people are sympathetic to. So there may be abortions that 50 00:03:28,840 --> 00:03:32,600 Speaker 1: may appear to be elective to the state which really 51 00:03:32,720 --> 00:03:37,200 Speaker 1: are essential, and states that have become far more strict 52 00:03:37,240 --> 00:03:42,880 Speaker 1: with regard to abortion had in some instances created sympathetic carbouts, 53 00:03:42,960 --> 00:03:47,960 Speaker 1: if you will. But even that is deeply problematic because 54 00:03:48,480 --> 00:03:53,200 Speaker 1: uh an abortion is legal, institutionally legal in this country. 55 00:03:53,320 --> 00:03:56,800 Speaker 1: It's been the only space where there is a constitutional 56 00:03:56,920 --> 00:04:01,280 Speaker 1: right that has been subjected to so much cutting um 57 00:04:01,320 --> 00:04:07,000 Speaker 1: at the state level, mostly determined by male legislators and governors. 58 00:04:07,000 --> 00:04:09,720 Speaker 1: This has not been an agenda that women have followed. 59 00:04:09,720 --> 00:04:12,400 Speaker 1: And also it's an agenda that's inconsistent with the broad 60 00:04:12,480 --> 00:04:16,520 Speaker 1: majority of how Americans feel. I should add one other 61 00:04:16,600 --> 00:04:21,440 Speaker 1: point to this that really underscores why the state states 62 00:04:21,440 --> 00:04:24,240 Speaker 1: that are seeking to do this are engaging in a 63 00:04:24,360 --> 00:04:28,480 Speaker 1: very dangerous game, and that is the United States leads 64 00:04:28,520 --> 00:04:32,760 Speaker 1: the developed world in the rate of maternal mortality. The 65 00:04:32,920 --> 00:04:37,280 Speaker 1: US has the highest rate of maternal mortality, higher even 66 00:04:37,279 --> 00:04:41,400 Speaker 1: than in some developed countries. A person is fourteen times 67 00:04:41,440 --> 00:04:44,800 Speaker 1: more likely to die by carrying a pregnancy to term 68 00:04:44,880 --> 00:04:49,000 Speaker 1: in the United States than by terminating it. In that way, 69 00:04:49,160 --> 00:04:54,360 Speaker 1: when states are jerrymandering abortion rights, they are actually playing 70 00:04:54,720 --> 00:04:58,000 Speaker 1: with not only health and safety, it's actually a life 71 00:04:58,040 --> 00:05:02,360 Speaker 1: and death game that they're playing. The situation has escalated 72 00:05:02,400 --> 00:05:05,960 Speaker 1: in Texas, where the state a g has threatened abortion 73 00:05:06,040 --> 00:05:09,480 Speaker 1: providers who continue to perform procedures with fines of up 74 00:05:09,520 --> 00:05:12,719 Speaker 1: to a thousand dollars or a hundred eighty days in jail, 75 00:05:13,160 --> 00:05:17,320 Speaker 1: and sixteen other states have defended texas Is position, and 76 00:05:17,360 --> 00:05:19,799 Speaker 1: this week a three judge panel of the Fifth Circuit 77 00:05:20,120 --> 00:05:23,159 Speaker 1: ruled two to one that Texas could enforce limits on 78 00:05:23,200 --> 00:05:27,080 Speaker 1: abortions that were part of the state's emergency order. The 79 00:05:27,160 --> 00:05:34,159 Speaker 1: Fifth Circuit has shown an intemperance UH towards reproductive health 80 00:05:34,320 --> 00:05:38,240 Speaker 1: rights and safety. And we see this through the very 81 00:05:38,320 --> 00:05:42,240 Speaker 1: recent case June Medical, which is now before the US 82 00:05:42,400 --> 00:05:46,120 Speaker 1: Supreme Court. What's important to note about the Fifth Circuit 83 00:05:46,240 --> 00:05:50,880 Speaker 1: is that despite the Supreme Court's holding and whole Woman's 84 00:05:50,880 --> 00:05:53,760 Speaker 1: health just a few years back, where the Supreme Court 85 00:05:54,200 --> 00:05:58,680 Speaker 1: upheld abortion rights, striking down two Texas laws and one 86 00:05:58,720 --> 00:06:02,120 Speaker 1: that related to dot Ters UH to the state requiring 87 00:06:02,200 --> 00:06:08,000 Speaker 1: that doctors received admitting privileges UH, Louisiana promulgated another law 88 00:06:08,279 --> 00:06:11,520 Speaker 1: virtually the same as the Supreme Court had struck down, 89 00:06:12,000 --> 00:06:15,599 Speaker 1: and the Fifth Circuit upheld it was highly unusual that 90 00:06:15,680 --> 00:06:18,520 Speaker 1: would have been the equivalent of Brown by Board of 91 00:06:18,640 --> 00:06:23,120 Speaker 1: Education of Topeka, Kansas, of the state of Louisiana creating 92 00:06:23,960 --> 00:06:26,960 Speaker 1: a segregation law and saying, well, Brown By Board of 93 00:06:27,040 --> 00:06:30,880 Speaker 1: Education doesn't apply to us, We're Louisiana. That's how absurd 94 00:06:30,920 --> 00:06:35,599 Speaker 1: it is that the Fifth Circuit upheld this um admitting 95 00:06:35,640 --> 00:06:42,080 Speaker 1: privileges law in Louisiana. If courts allow the so called 96 00:06:42,200 --> 00:06:48,200 Speaker 1: emergency restrictions during the pandemic, will every repercussions after the virus? 97 00:06:48,600 --> 00:06:52,280 Speaker 1: Is it sort of establishing some kind of precedent. Well, 98 00:06:52,440 --> 00:06:56,279 Speaker 1: certainly that's what they're looking to do. The effort behind 99 00:06:56,520 --> 00:07:01,159 Speaker 1: measures like this is really too un demne, undercutt and 100 00:07:01,200 --> 00:07:06,920 Speaker 1: basically kill abortion rights by a thousand strikes. What individuals 101 00:07:07,000 --> 00:07:09,359 Speaker 1: who are taking this stance are seeking to do is 102 00:07:09,400 --> 00:07:13,840 Speaker 1: to figure out what are the most strategic ways in 103 00:07:13,880 --> 00:07:18,560 Speaker 1: which they can undermine this important constitutional right, and this 104 00:07:18,680 --> 00:07:22,040 Speaker 1: is one of them. Litigation will continue after that, But 105 00:07:22,120 --> 00:07:25,240 Speaker 1: what they're hoping is that with a sympathetic Supreme Court, 106 00:07:25,360 --> 00:07:30,120 Speaker 1: perhaps a five Supreme Court that clearly has five conservative 107 00:07:30,160 --> 00:07:34,440 Speaker 1: justices that have articulated anti abortion leanings, that they will 108 00:07:34,520 --> 00:07:38,120 Speaker 1: hit the right note where they continue to undermine these 109 00:07:38,240 --> 00:07:41,920 Speaker 1: rights and constrain them such that abortion rights become more 110 00:07:42,040 --> 00:07:47,560 Speaker 1: illusory than real, even if one says that roasto has meaning. 111 00:07:47,600 --> 00:07:50,720 Speaker 1: In the United States, now, it's not just Red states 112 00:07:50,760 --> 00:07:53,960 Speaker 1: that are using the pandemic to advance their position. A 113 00:07:54,000 --> 00:07:56,600 Speaker 1: group of twenty one Blue states are urging the Trump 114 00:07:56,600 --> 00:08:01,720 Speaker 1: administration to ease restrictions on a medic patient abortion drug. 115 00:08:02,120 --> 00:08:04,320 Speaker 1: So is it wrong of them to do that as 116 00:08:04,320 --> 00:08:07,880 Speaker 1: it's wrong of the Red states to do what they're doing? Well, 117 00:08:08,080 --> 00:08:13,040 Speaker 1: what so, so let's be clear, um, abortion is constitutional. 118 00:08:13,120 --> 00:08:16,560 Speaker 1: It's not just legal right. It is a constitutional right. 119 00:08:16,640 --> 00:08:19,040 Speaker 1: So when its state is saying let's find a way 120 00:08:19,640 --> 00:08:24,840 Speaker 1: to make this constitutional right more accessible for the people 121 00:08:24,960 --> 00:08:29,280 Speaker 1: who want to exercise it, that is not doing something 122 00:08:29,320 --> 00:08:34,120 Speaker 1: that's actually contrary to the law or contrary to the constitution. 123 00:08:34,559 --> 00:08:37,559 Speaker 1: It's being mindful. Let's let's let's face it. So if 124 00:08:37,559 --> 00:08:41,120 Speaker 1: a person is pregnant and the person either wants to 125 00:08:41,160 --> 00:08:44,560 Speaker 1: carry the pregnancy to term or determinate it, the reality 126 00:08:44,880 --> 00:08:50,560 Speaker 1: is prenatal care far more exposes someone to contracting the virus, 127 00:08:50,600 --> 00:08:54,240 Speaker 1: having to multiple time see a nurse practitioner, or to 128 00:08:54,280 --> 00:08:57,760 Speaker 1: see a doctor time and time and time again, or postnatally. 129 00:08:58,600 --> 00:09:04,160 Speaker 1: With an abortion, it is generally one time and it's done, 130 00:09:04,160 --> 00:09:08,040 Speaker 1: and there's not the need for ppe s, the protective 131 00:09:08,080 --> 00:09:11,160 Speaker 1: gear that doctors would need, and so forth. So really, 132 00:09:11,200 --> 00:09:14,600 Speaker 1: the arguments that are being made to constrain the constitutional 133 00:09:14,720 --> 00:09:17,760 Speaker 1: right happen to be problematic, just as we would see 134 00:09:17,760 --> 00:09:20,920 Speaker 1: with voting right at the states that well, it's an emergency, 135 00:09:21,000 --> 00:09:24,000 Speaker 1: let's just constrain people's right to vote. Let's just stop 136 00:09:24,000 --> 00:09:27,520 Speaker 1: them from voting, rather than thinking through how best can 137 00:09:27,600 --> 00:09:30,280 Speaker 1: we make sure that people have a right to vote, because, 138 00:09:30,400 --> 00:09:33,640 Speaker 1: after all, they have a right to vote. It would 139 00:09:33,640 --> 00:09:37,439 Speaker 1: be problematic when states say, oh, here, we have a pandemic, 140 00:09:37,559 --> 00:09:43,120 Speaker 1: let's see how we can constrain your constitutional rights, even 141 00:09:43,160 --> 00:09:46,280 Speaker 1: if they have little relevance to what's happening at this time. 142 00:09:47,640 --> 00:09:52,040 Speaker 1: And looking at abortion rights broadly, how much depends on 143 00:09:52,160 --> 00:09:55,720 Speaker 1: the way the Supreme Court rules on the abortion case 144 00:09:55,760 --> 00:09:59,400 Speaker 1: before it now, the one that you just mentioned, Well, 145 00:09:59,720 --> 00:10:05,319 Speaker 1: it's quite significant. So you know, Justice Roberts will be 146 00:10:05,360 --> 00:10:08,400 Speaker 1: a key in the coming case. And so what this 147 00:10:08,480 --> 00:10:13,160 Speaker 1: case concerns is not only uh the constitutional right to 148 00:10:13,280 --> 00:10:17,920 Speaker 1: terminate a pregnancy, but it also concerns how um o 149 00:10:18,080 --> 00:10:21,600 Speaker 1: our Supreme Court's legitimacy. And what I mean by that 150 00:10:21,800 --> 00:10:25,840 Speaker 1: is that there is a question about the value of precedent. 151 00:10:26,080 --> 00:10:28,720 Speaker 1: What Justice Thomas has been saying lately to sort of 152 00:10:28,760 --> 00:10:31,480 Speaker 1: set the stage for this, is that precedent doesn't matter 153 00:10:31,640 --> 00:10:34,360 Speaker 1: very much, and to some degree, we do have to 154 00:10:34,400 --> 00:10:37,760 Speaker 1: be careful with thinking about precedent. Let's remember that this 155 00:10:37,840 --> 00:10:40,240 Speaker 1: was a nation where the Supreme Court had in fact 156 00:10:40,400 --> 00:10:46,079 Speaker 1: upheld racially segregative laws in this country, so striking those 157 00:10:46,120 --> 00:10:49,280 Speaker 1: down with Brown was very important. Yet at the same 158 00:10:49,320 --> 00:10:54,120 Speaker 1: time we understand the importance and validity of judicial precedent, 159 00:10:54,360 --> 00:10:56,880 Speaker 1: and that the Court can't act in a willy neely 160 00:10:57,000 --> 00:11:00,920 Speaker 1: way subject to its political whims at the time. And 161 00:11:00,960 --> 00:11:04,280 Speaker 1: that's really what this Louisiana case is about. If just 162 00:11:04,920 --> 00:11:08,199 Speaker 1: three or four years ago the Supreme Court struck down 163 00:11:08,280 --> 00:11:13,400 Speaker 1: this law saying that it obstructed an undermined constitutional right, 164 00:11:14,559 --> 00:11:17,920 Speaker 1: now changing course would really be a matter of the 165 00:11:18,120 --> 00:11:23,440 Speaker 1: Supreme Court actually violating what Justice Robert said a year ago, 166 00:11:23,480 --> 00:11:26,360 Speaker 1: which is that we're not Trump courts, were not Obama Court. 167 00:11:26,640 --> 00:11:29,800 Speaker 1: We are the Supreme Court, and we are an objective, 168 00:11:29,960 --> 00:11:33,960 Speaker 1: neutral court that follows the law. Thanks Michelle, that's Michelle Goodwin, 169 00:11:34,160 --> 00:11:37,839 Speaker 1: professor at you See Irvine Law School. Thanks for listening 170 00:11:37,880 --> 00:11:41,160 Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen 171 00:11:41,160 --> 00:11:44,760 Speaker 1: to the show on Apple podcast, SoundCloud, and on Bloomberg 172 00:11:44,800 --> 00:11:49,520 Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg 173 00:11:51,960 --> 00:11:52,080 Speaker 1: Ye