WEBVTT - America’s Abortion Wars Escalate With Coronavirus

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<v Speaker 1>This is Bloomberg Law with June Grasso. The coronavirus is

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<v Speaker 1>ramping up America's abortion war as red and blue states

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<v Speaker 1>spar over whether the procedure is essential. Amid a flurry

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<v Speaker 1>of judicial rulings in the state of Texas, the battle

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<v Speaker 1>has reached the Fifth Circuit Court of Appeals, joining me

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<v Speaker 1>as Michelle Goodwin, professor at the University of California Irvine

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<v Speaker 1>School of Law and author of the new book Policing

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<v Speaker 1>the Womb. Michelle, how would you characterize what's happening now

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<v Speaker 1>over abortion rights while the country is in the middle

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<v Speaker 1>of a public health crisis. Well, abortion rights have become

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<v Speaker 1>a convenient political proxy for carrying out platforms against people's

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<v Speaker 1>constitutional rights to in their pregnancy, is sort of. The

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<v Speaker 1>coronavirus really has become that proxy or convenient scapegoat, if

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<v Speaker 1>you will, for carrying out an agenda that up ends

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<v Speaker 1>and ut really women's constitutional rights to in their pregnancies.

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<v Speaker 1>And it's quite unfortunate because what states that are looking

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<v Speaker 1>to do it in these times are claiming is that

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<v Speaker 1>this medical procedure to which there is a constitutional right

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<v Speaker 1>is not essential. Essentially, a constitutional right is not essential.

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<v Speaker 1>A medical constitutional rights, they're saying is not essential. Is

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<v Speaker 1>that the basic argument in all these cases, and what

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<v Speaker 1>are the challengers responses, So this is a basic claimant,

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<v Speaker 1>you know, they're suggesting that this really isn't about women

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<v Speaker 1>and it's not about their constitutional rights. What this really

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<v Speaker 1>is as part of pandemic preparedness, that it's important not

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<v Speaker 1>to divert resources away, medical resources, away from addressing coronavirus,

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<v Speaker 1>and that that's where attention should be in Texas, but

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<v Speaker 1>need while in Texas, while there's an effort to close

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<v Speaker 1>abortion clinics and make sure that doctors who perform the

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<v Speaker 1>services cannot do so, Meanwhile, gun stores are open and

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<v Speaker 1>so are other places that people can go to. Presumably

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<v Speaker 1>those are essential services being able to pick up a

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<v Speaker 1>gun during these times, and not an individual's ability to

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<v Speaker 1>terminate a pregnancy. Now, some states are saying, well, so

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<v Speaker 1>long as this is an elective abortion, such as an abortion,

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<v Speaker 1>that's not really needed. But the state really shouldn't be

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<v Speaker 1>gerrymandering in any way reproductive health and determining which abortions

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<v Speaker 1>happen to be elective, in which abortions happen to be essential.

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<v Speaker 1>And here's a reason why. In states, there would be

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<v Speaker 1>some states would say, well, an abortion that's pursuing to

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<v Speaker 1>a rape or incest happens to be essential. But one

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<v Speaker 1>of the things that we know through statistics over time

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<v Speaker 1>that are reliable and reliable empirical data, is that people

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<v Speaker 1>who are raped oftentimes do not report their rapes. That

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<v Speaker 1>doesn't mean that they haven't been raped, doesn't mean that

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<v Speaker 1>they're not pregnant because of a rape. They simply sometimes

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<v Speaker 1>do not report it for fear of their own safety,

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<v Speaker 1>of harm to their families, any number of reasons which

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<v Speaker 1>people are sympathetic to. So there may be abortions that

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<v Speaker 1>may appear to be elective to the state which really

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<v Speaker 1>are essential, and states that have become far more strict

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<v Speaker 1>with regard to abortion had in some instances created sympathetic carbouts,

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<v Speaker 1>if you will. But even that is deeply problematic because

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<v Speaker 1>uh an abortion is legal, institutionally legal in this country.

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<v Speaker 1>It's been the only space where there is a constitutional

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<v Speaker 1>right that has been subjected to so much cutting um

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<v Speaker 1>at the state level, mostly determined by male legislators and governors.

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<v Speaker 1>This has not been an agenda that women have followed.

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<v Speaker 1>And also it's an agenda that's inconsistent with the broad

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<v Speaker 1>majority of how Americans feel. I should add one other

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<v Speaker 1>point to this that really underscores why the state states

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<v Speaker 1>that are seeking to do this are engaging in a

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<v Speaker 1>very dangerous game, and that is the United States leads

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<v Speaker 1>the developed world in the rate of maternal mortality. The

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<v Speaker 1>US has the highest rate of maternal mortality, higher even

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<v Speaker 1>than in some developed countries. A person is fourteen times

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<v Speaker 1>more likely to die by carrying a pregnancy to term

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<v Speaker 1>in the United States than by terminating it. In that way,

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<v Speaker 1>when states are jerrymandering abortion rights, they are actually playing

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<v Speaker 1>with not only health and safety, it's actually a life

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<v Speaker 1>and death game that they're playing. The situation has escalated

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<v Speaker 1>in Texas, where the state a g has threatened abortion

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<v Speaker 1>providers who continue to perform procedures with fines of up

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<v Speaker 1>to a thousand dollars or a hundred eighty days in jail,

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<v Speaker 1>and sixteen other states have defended texas Is position, and

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<v Speaker 1>this week a three judge panel of the Fifth Circuit

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<v Speaker 1>ruled two to one that Texas could enforce limits on

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<v Speaker 1>abortions that were part of the state's emergency order. The

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<v Speaker 1>Fifth Circuit has shown an intemperance UH towards reproductive health

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<v Speaker 1>rights and safety. And we see this through the very

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<v Speaker 1>recent case June Medical, which is now before the US

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<v Speaker 1>Supreme Court. What's important to note about the Fifth Circuit

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<v Speaker 1>is that despite the Supreme Court's holding and whole Woman's

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<v Speaker 1>health just a few years back, where the Supreme Court

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<v Speaker 1>upheld abortion rights, striking down two Texas laws and one

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<v Speaker 1>that related to dot Ters UH to the state requiring

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<v Speaker 1>that doctors received admitting privileges UH, Louisiana promulgated another law

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<v Speaker 1>virtually the same as the Supreme Court had struck down,

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<v Speaker 1>and the Fifth Circuit upheld it was highly unusual that

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<v Speaker 1>would have been the equivalent of Brown by Board of

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<v Speaker 1>Education of Topeka, Kansas, of the state of Louisiana creating

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<v Speaker 1>a segregation law and saying, well, Brown By Board of

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<v Speaker 1>Education doesn't apply to us, We're Louisiana. That's how absurd

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<v Speaker 1>it is that the Fifth Circuit upheld this um admitting

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<v Speaker 1>privileges law in Louisiana. If courts allow the so called

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<v Speaker 1>emergency restrictions during the pandemic, will every repercussions after the virus?

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<v Speaker 1>Is it sort of establishing some kind of precedent. Well,

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<v Speaker 1>certainly that's what they're looking to do. The effort behind

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<v Speaker 1>measures like this is really too un demne, undercutt and

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<v Speaker 1>basically kill abortion rights by a thousand strikes. What individuals

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<v Speaker 1>who are taking this stance are seeking to do is

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<v Speaker 1>to figure out what are the most strategic ways in

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<v Speaker 1>which they can undermine this important constitutional right, and this

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<v Speaker 1>is one of them. Litigation will continue after that, But

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<v Speaker 1>what they're hoping is that with a sympathetic Supreme Court,

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<v Speaker 1>perhaps a five Supreme Court that clearly has five conservative

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<v Speaker 1>justices that have articulated anti abortion leanings, that they will

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<v Speaker 1>hit the right note where they continue to undermine these

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<v Speaker 1>rights and constrain them such that abortion rights become more

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<v Speaker 1>illusory than real, even if one says that roasto has meaning.

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<v Speaker 1>In the United States, now, it's not just Red states

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<v Speaker 1>that are using the pandemic to advance their position. A

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<v Speaker 1>group of twenty one Blue states are urging the Trump

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<v Speaker 1>administration to ease restrictions on a medic patient abortion drug.

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<v Speaker 1>So is it wrong of them to do that as

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<v Speaker 1>it's wrong of the Red states to do what they're doing? Well,

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<v Speaker 1>what so, so let's be clear, um, abortion is constitutional.

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<v Speaker 1>It's not just legal right. It is a constitutional right.

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<v Speaker 1>So when its state is saying let's find a way

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<v Speaker 1>to make this constitutional right more accessible for the people

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<v Speaker 1>who want to exercise it, that is not doing something

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<v Speaker 1>that's actually contrary to the law or contrary to the constitution.

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<v Speaker 1>It's being mindful. Let's let's let's face it. So if

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<v Speaker 1>a person is pregnant and the person either wants to

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<v Speaker 1>carry the pregnancy to term or determinate it, the reality

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<v Speaker 1>is prenatal care far more exposes someone to contracting the virus,

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<v Speaker 1>having to multiple time see a nurse practitioner, or to

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<v Speaker 1>see a doctor time and time and time again, or postnatally.

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<v Speaker 1>With an abortion, it is generally one time and it's done,

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<v Speaker 1>and there's not the need for ppe s, the protective

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<v Speaker 1>gear that doctors would need, and so forth. So really,

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<v Speaker 1>the arguments that are being made to constrain the constitutional

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<v Speaker 1>right happen to be problematic, just as we would see

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<v Speaker 1>with voting right at the states that well, it's an emergency,

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<v Speaker 1>let's just constrain people's right to vote. Let's just stop

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<v Speaker 1>them from voting, rather than thinking through how best can

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<v Speaker 1>we make sure that people have a right to vote, because,

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<v Speaker 1>after all, they have a right to vote. It would

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<v Speaker 1>be problematic when states say, oh, here, we have a pandemic,

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<v Speaker 1>let's see how we can constrain your constitutional rights, even

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<v Speaker 1>if they have little relevance to what's happening at this time.

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<v Speaker 1>And looking at abortion rights broadly, how much depends on

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<v Speaker 1>the way the Supreme Court rules on the abortion case

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<v Speaker 1>before it now, the one that you just mentioned, Well,

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<v Speaker 1>it's quite significant. So you know, Justice Roberts will be

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<v Speaker 1>a key in the coming case. And so what this

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<v Speaker 1>case concerns is not only uh the constitutional right to

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<v Speaker 1>terminate a pregnancy, but it also concerns how um o

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<v Speaker 1>our Supreme Court's legitimacy. And what I mean by that

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<v Speaker 1>is that there is a question about the value of precedent.

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<v Speaker 1>What Justice Thomas has been saying lately to sort of

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<v Speaker 1>set the stage for this, is that precedent doesn't matter

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<v Speaker 1>very much, and to some degree, we do have to

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<v Speaker 1>be careful with thinking about precedent. Let's remember that this

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<v Speaker 1>was a nation where the Supreme Court had in fact

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<v Speaker 1>upheld racially segregative laws in this country, so striking those

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<v Speaker 1>down with Brown was very important. Yet at the same

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<v Speaker 1>time we understand the importance and validity of judicial precedent,

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<v Speaker 1>and that the Court can't act in a willy neely

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<v Speaker 1>way subject to its political whims at the time. And

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<v Speaker 1>that's really what this Louisiana case is about. If just

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<v Speaker 1>three or four years ago the Supreme Court struck down

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<v Speaker 1>this law saying that it obstructed an undermined constitutional right,

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<v Speaker 1>now changing course would really be a matter of the

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<v Speaker 1>Supreme Court actually violating what Justice Robert said a year ago,

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<v Speaker 1>which is that we're not Trump courts, were not Obama Court.

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<v Speaker 1>We are the Supreme Court, and we are an objective,

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<v Speaker 1>neutral court that follows the law. Thanks Michelle, that's Michelle Goodwin,

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<v Speaker 1>professor at you See Irvine Law School. Thanks for listening

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<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

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<v Speaker 1>to the show on Apple podcast, SoundCloud, and on Bloomberg

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<v Speaker 1>dot com slash podcast. I'm June Brosso. This is Bloomberg

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<v Speaker 1>Ye