Speaker 1: This is Bloomberg Law with June Grasso. The coronavirus is
Speaker 1: ramping up America's abortion war as red and blue states
Speaker 1: spar over whether the procedure is essential. Amid a flurry
Speaker 1: of judicial rulings in the state of Texas, the battle
Speaker 1: has reached the Fifth Circuit Court of Appeals, joining me
Speaker 1: as Michelle Goodwin, professor at the University of California Irvine
Speaker 1: School of Law and author of the new book Policing
Speaker 1: the Womb. Michelle, how would you characterize what's happening now
Speaker 1: over abortion rights while the country is in the middle
Speaker 1: of a public health crisis. Well, abortion rights have become
Speaker 1: a convenient political proxy for carrying out platforms against people's
Speaker 1: constitutional rights to in their pregnancy, is sort of. The
Speaker 1: coronavirus really has become that proxy or convenient scapegoat, if
Speaker 1: you will, for carrying out an agenda that up ends
Speaker 1: and ut really women's constitutional rights to in their pregnancies.
Speaker 1: And it's quite unfortunate because what states that are looking
Speaker 1: to do it in these times are claiming is that
Speaker 1: this medical procedure to which there is a constitutional right
Speaker 1: is not essential. Essentially, a constitutional right is not essential.
Speaker 1: A medical constitutional rights, they're saying is not essential. Is
Speaker 1: that the basic argument in all these cases, and what
Speaker 1: are the challengers responses, So this is a basic claimant,
Speaker 1: you know, they're suggesting that this really isn't about women
Speaker 1: and it's not about their constitutional rights. What this really
Speaker 1: is as part of pandemic preparedness, that it's important not
Speaker 1: to divert resources away, medical resources, away from addressing coronavirus,
Speaker 1: and that that's where attention should be in Texas, but
Speaker 1: need while in Texas, while there's an effort to close
Speaker 1: abortion clinics and make sure that doctors who perform the
Speaker 1: services cannot do so, Meanwhile, gun stores are open and
Speaker 1: so are other places that people can go to. Presumably
Speaker 1: those are essential services being able to pick up a
Speaker 1: gun during these times, and not an individual's ability to
Speaker 1: terminate a pregnancy. Now, some states are saying, well, so
Speaker 1: long as this is an elective abortion, such as an abortion,
Speaker 1: that's not really needed. But the state really shouldn't be
Speaker 1: gerrymandering in any way reproductive health and determining which abortions
Speaker 1: happen to be elective, in which abortions happen to be essential.
Speaker 1: And here's a reason why. In states, there would be
Speaker 1: some states would say, well, an abortion that's pursuing to
Speaker 1: a rape or incest happens to be essential. But one
Speaker 1: of the things that we know through statistics over time
Speaker 1: that are reliable and reliable empirical data, is that people
Speaker 1: who are raped oftentimes do not report their rapes. That
Speaker 1: doesn't mean that they haven't been raped, doesn't mean that
Speaker 1: they're not pregnant because of a rape. They simply sometimes
Speaker 1: do not report it for fear of their own safety,
Speaker 1: of harm to their families, any number of reasons which
Speaker 1: people are sympathetic to. So there may be abortions that
Speaker 1: may appear to be elective to the state which really
Speaker 1: are essential, and states that have become far more strict
Speaker 1: with regard to abortion had in some instances created sympathetic carbouts,
Speaker 1: if you will. But even that is deeply problematic because
Speaker 1: uh an abortion is legal, institutionally legal in this country.
Speaker 1: It's been the only space where there is a constitutional
Speaker 1: right that has been subjected to so much cutting um
Speaker 1: at the state level, mostly determined by male legislators and governors.
Speaker 1: This has not been an agenda that women have followed.
Speaker 1: And also it's an agenda that's inconsistent with the broad
Speaker 1: majority of how Americans feel. I should add one other
Speaker 1: point to this that really underscores why the state states
Speaker 1: that are seeking to do this are engaging in a
Speaker 1: very dangerous game, and that is the United States leads
Speaker 1: the developed world in the rate of maternal mortality. The
Speaker 1: US has the highest rate of maternal mortality, higher even
Speaker 1: than in some developed countries. A person is fourteen times
Speaker 1: more likely to die by carrying a pregnancy to term
Speaker 1: in the United States than by terminating it. In that way,
Speaker 1: when states are jerrymandering abortion rights, they are actually playing
Speaker 1: with not only health and safety, it's actually a life
Speaker 1: and death game that they're playing. The situation has escalated
Speaker 1: in Texas, where the state a g has threatened abortion
Speaker 1: providers who continue to perform procedures with fines of up
Speaker 1: to a thousand dollars or a hundred eighty days in jail,
Speaker 1: and sixteen other states have defended texas Is position, and
Speaker 1: this week a three judge panel of the Fifth Circuit
Speaker 1: ruled two to one that Texas could enforce limits on
Speaker 1: abortions that were part of the state's emergency order. The
Speaker 1: Fifth Circuit has shown an intemperance UH towards reproductive health
Speaker 1: rights and safety. And we see this through the very
Speaker 1: recent case June Medical, which is now before the US
Speaker 1: Supreme Court. What's important to note about the Fifth Circuit
Speaker 1: is that despite the Supreme Court's holding and whole Woman's
Speaker 1: health just a few years back, where the Supreme Court
Speaker 1: upheld abortion rights, striking down two Texas laws and one
Speaker 1: that related to dot Ters UH to the state requiring
Speaker 1: that doctors received admitting privileges UH, Louisiana promulgated another law
Speaker 1: virtually the same as the Supreme Court had struck down,
Speaker 1: and the Fifth Circuit upheld it was highly unusual that
Speaker 1: would have been the equivalent of Brown by Board of
Speaker 1: Education of Topeka, Kansas, of the state of Louisiana creating
Speaker 1: a segregation law and saying, well, Brown By Board of
Speaker 1: Education doesn't apply to us, We're Louisiana. That's how absurd
Speaker 1: it is that the Fifth Circuit upheld this um admitting
Speaker 1: privileges law in Louisiana. If courts allow the so called
Speaker 1: emergency restrictions during the pandemic, will every repercussions after the virus?
Speaker 1: Is it sort of establishing some kind of precedent. Well,
Speaker 1: certainly that's what they're looking to do. The effort behind
Speaker 1: measures like this is really too un demne, undercutt and
Speaker 1: basically kill abortion rights by a thousand strikes. What individuals
Speaker 1: who are taking this stance are seeking to do is
Speaker 1: to figure out what are the most strategic ways in
Speaker 1: which they can undermine this important constitutional right, and this
Speaker 1: is one of them. Litigation will continue after that, But
Speaker 1: what they're hoping is that with a sympathetic Supreme Court,
Speaker 1: perhaps a five Supreme Court that clearly has five conservative
Speaker 1: justices that have articulated anti abortion leanings, that they will
Speaker 1: hit the right note where they continue to undermine these
Speaker 1: rights and constrain them such that abortion rights become more
Speaker 1: illusory than real, even if one says that roasto has meaning.
Speaker 1: In the United States, now, it's not just Red states
Speaker 1: that are using the pandemic to advance their position. A
Speaker 1: group of twenty one Blue states are urging the Trump
Speaker 1: administration to ease restrictions on a medic patient abortion drug.
Speaker 1: So is it wrong of them to do that as
Speaker 1: it's wrong of the Red states to do what they're doing? Well,
Speaker 1: what so, so let's be clear, um, abortion is constitutional.
Speaker 1: It's not just legal right. It is a constitutional right.
Speaker 1: So when its state is saying let's find a way
Speaker 1: to make this constitutional right more accessible for the people
Speaker 1: who want to exercise it, that is not doing something
Speaker 1: that's actually contrary to the law or contrary to the constitution.
Speaker 1: It's being mindful. Let's let's let's face it. So if
Speaker 1: a person is pregnant and the person either wants to
Speaker 1: carry the pregnancy to term or determinate it, the reality
Speaker 1: is prenatal care far more exposes someone to contracting the virus,
Speaker 1: having to multiple time see a nurse practitioner, or to
Speaker 1: see a doctor time and time and time again, or postnatally.
Speaker 1: With an abortion, it is generally one time and it's done,
Speaker 1: and there's not the need for ppe s, the protective
Speaker 1: gear that doctors would need, and so forth. So really,
Speaker 1: the arguments that are being made to constrain the constitutional
Speaker 1: right happen to be problematic, just as we would see
Speaker 1: with voting right at the states that well, it's an emergency,
Speaker 1: let's just constrain people's right to vote. Let's just stop
Speaker 1: them from voting, rather than thinking through how best can
Speaker 1: we make sure that people have a right to vote, because,
Speaker 1: after all, they have a right to vote. It would
Speaker 1: be problematic when states say, oh, here, we have a pandemic,
Speaker 1: let's see how we can constrain your constitutional rights, even
Speaker 1: if they have little relevance to what's happening at this time.
Speaker 1: And looking at abortion rights broadly, how much depends on
Speaker 1: the way the Supreme Court rules on the abortion case
Speaker 1: before it now, the one that you just mentioned, Well,
Speaker 1: it's quite significant. So you know, Justice Roberts will be
Speaker 1: a key in the coming case. And so what this
Speaker 1: case concerns is not only uh the constitutional right to
Speaker 1: terminate a pregnancy, but it also concerns how um o
Speaker 1: our Supreme Court's legitimacy. And what I mean by that
Speaker 1: is that there is a question about the value of precedent.
Speaker 1: What Justice Thomas has been saying lately to sort of
Speaker 1: set the stage for this, is that precedent doesn't matter
Speaker 1: very much, and to some degree, we do have to
Speaker 1: be careful with thinking about precedent. Let's remember that this
Speaker 1: was a nation where the Supreme Court had in fact
Speaker 1: upheld racially segregative laws in this country, so striking those
Speaker 1: down with Brown was very important. Yet at the same
Speaker 1: time we understand the importance and validity of judicial precedent,
Speaker 1: and that the Court can't act in a willy neely
Speaker 1: way subject to its political whims at the time. And
Speaker 1: that's really what this Louisiana case is about. If just
Speaker 1: three or four years ago the Supreme Court struck down
Speaker 1: this law saying that it obstructed an undermined constitutional right,
Speaker 1: now changing course would really be a matter of the
Speaker 1: Supreme Court actually violating what Justice Robert said a year ago,
Speaker 1: which is that we're not Trump courts, were not Obama Court.
Speaker 1: We are the Supreme Court, and we are an objective,
Speaker 1: neutral court that follows the law. Thanks Michelle, that's Michelle Goodwin,
Speaker 1: professor at you See Irvine Law School. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
Speaker 1: to the show on Apple podcast, SoundCloud, and on Bloomberg
Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg
Speaker 1: Ye