WEBVTT - War Power and Anniversary of Reversal of Roe v. Wad 0:00:02.759 --> 0:00:07.520 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:09.400 --> 0:00:12.320 US troops in the Middle East remain on high alert 0:00:12.640 --> 0:00:16.120 as Israel and Iran appeared to be honoring a ceasefire 0:00:16.200 --> 0:00:21.840 agreement unexpectedly announced by President Donald Trump last evening. This morning, 0:00:21.920 --> 0:00:25.880 Trump was reacting angrily to reports of early breaches of 0:00:25.920 --> 0:00:27.440 the deal by both sides. 0:00:28.280 --> 0:00:29.440 Now I hear is you just. 0:00:29.520 --> 0:00:32.839 Went out because they felt it was violated by one. 0:00:32.760 --> 0:00:34.320 Rocket that didn't land anywhere. 0:00:34.960 --> 0:00:36.720 That's not what we want, I'll tell you, and I'm 0:00:36.720 --> 0:00:38.880 telling you I'm not happy about that Israel either. 0:00:39.479 --> 0:00:43.159 Article I of the Constitution gives Congress the power to 0:00:43.200 --> 0:00:47.480 declare war, and the War Powers Act requires the President 0:00:47.840 --> 0:00:52.920 to consult with Congress before using military force. Democrats and 0:00:52.960 --> 0:00:57.360 some Republican lawmakers are critical of President Trump's decision to 0:00:57.480 --> 0:01:01.760 attack Iran's nuclear sites because Trump didn't get approval from 0:01:01.840 --> 0:01:06.800 Congress or consult with lawmakers beforehand. Here are Democratic House 0:01:06.840 --> 0:01:11.880 Minority Leader Hakim Jeffries and Republican Senator Lisa Murkowski. 0:01:12.120 --> 0:01:15.520 The role of Congress is very clear. Under Article one. 0:01:15.680 --> 0:01:19.000 It is the Congress that has the ability of the 0:01:19.040 --> 0:01:22.759 authority to declare war. And so I think you will 0:01:22.800 --> 0:01:25.800 see that conversation, that debate move forward this week. 0:01:26.040 --> 0:01:30.720 But Trump administration officials have called the strikes limited actions 0:01:30.760 --> 0:01:34.920 aimed solely at Iran's nuclear capabilities that don't meet the 0:01:34.959 --> 0:01:39.360 definition of war. Here Secretary of State Marco Rubio on 0:01:39.440 --> 0:01:41.240 Fox News on Sunday. 0:01:41.160 --> 0:01:43.440 This is not a war against Iran. This is this 0:01:43.560 --> 0:01:46.399 is very simple. You know, sixty seven days ago, the 0:01:46.400 --> 0:01:48.400 President of the United States sent the Rantings a letter 0:01:48.400 --> 0:01:50.240 and it said, you're not going to have nuclear weapons, 0:01:50.240 --> 0:01:54.200 You're not going to have a militarized nuclear program. Let's negotiate. 0:01:54.240 --> 0:01:56.120 I want to do this diplomatically. I want to do 0:01:56.160 --> 0:01:59.040 this peacefully. They tried to play them along the way 0:01:59.040 --> 0:02:02.280 they've played every America president for the last thirty five years. 0:02:02.600 --> 0:02:04.760 And you know, the President told them, if we don't 0:02:04.760 --> 0:02:07.040 get a deal, which is what we wanted, then I'll 0:02:07.040 --> 0:02:08.120 have to handle it differently. 0:02:08.800 --> 0:02:12.360 My guest is Joshua Castenberg, a professor at the University 0:02:12.400 --> 0:02:15.320 of New Mexico Law School and a former judge and 0:02:15.400 --> 0:02:19.600 prosecutor in the US Air Force. So, josh Article one 0:02:19.600 --> 0:02:23.400 of the Constitution gives Congress the power to declare war. 0:02:24.280 --> 0:02:28.280 Article two designates the President as commander in chief of 0:02:28.320 --> 0:02:32.239 the Army and Navy of the United States, and sometimes 0:02:32.320 --> 0:02:34.799 those two may seem to be in conflict. 0:02:35.280 --> 0:02:38.080 Yeah, So the framers of the Constitution, in order to 0:02:38.120 --> 0:02:42.959 create techs and balances on the federal government and keep 0:02:43.000 --> 0:02:47.799 it a government of limited power, gave to the Congress 0:02:47.800 --> 0:02:50.799 of the United States the sole authority to declare war. 0:02:50.919 --> 0:02:54.959 So historically, what had happened prior to, you know, World 0:02:54.960 --> 0:02:58.400 War Two, is that the President would go to Congress 0:02:58.440 --> 0:03:00.880 and ask for a declaration of war. And in our 0:03:00.960 --> 0:03:05.040 major conflicts with foreign countries, that's exactly what happened. And 0:03:05.080 --> 0:03:08.840 that included the Spanish American War, the Mexican American War, 0:03:09.360 --> 0:03:12.120 the War of eighteen twelve. Some of these were closed vote. 0:03:12.160 --> 0:03:15.160 Certainly the War of eighteen twelve was a close vote. 0:03:15.200 --> 0:03:19.240 World War one, the declaration of war against Germany, you know, 0:03:19.280 --> 0:03:22.160 he had fifty members of Congress voting no on it, 0:03:22.400 --> 0:03:25.720 so it was not unanimous. But after World War Two, 0:03:26.360 --> 0:03:29.919 Congress stopped declaring war. You know, with the Korean War, 0:03:30.080 --> 0:03:33.440 which Truman and others called the police Action, they at 0:03:33.480 --> 0:03:37.360 least had the United Nations with the Security Council Resolution 0:03:37.720 --> 0:03:41.920 empowering the United States and allies to go maintain the 0:03:41.960 --> 0:03:45.720 integrity of the Republic of Korea. In Vietnam, there was 0:03:45.760 --> 0:03:49.560 no declaration of war. There was the Gulf of Tonkin Resolution, 0:03:49.680 --> 0:03:52.280 no matter how flawed that was. Only two members of 0:03:52.360 --> 0:03:57.440 Congress voted against empowering Lyndon Johnson to ante up greater 0:03:57.640 --> 0:04:02.400 forces and respond to attacks committed against the United States 0:04:02.520 --> 0:04:06.600 military forces in both North and South Vietnam. You've had 0:04:06.640 --> 0:04:10.480 authorizations for the use of force in Afghanistan and in 0:04:10.560 --> 0:04:15.320 Iraq Security Council resolutions from the UN with operations Desert Storm. 0:04:15.640 --> 0:04:19.839 But over and over again, our presidents are bypassing Congress, 0:04:19.920 --> 0:04:22.919 and they're also ignoring the War Powers Act of nineteen 0:04:22.960 --> 0:04:23.680 seventy three. 0:04:24.400 --> 0:04:28.280 So what about these strikes on Iran ordered by the 0:04:28.320 --> 0:04:33.240 president without consulting Congress? Are they unconstitutional? 0:04:33.760 --> 0:04:37.000 In this case a strike on Iran. You're going to 0:04:37.080 --> 0:04:40.840 hear legal scholars on both sides, and then you're going 0:04:40.880 --> 0:04:43.720 to hear the our justice departments say, well, the president 0:04:43.720 --> 0:04:47.360 had the authority to launch a single strike against Iran. 0:04:47.640 --> 0:04:51.640 Now the president has the authority to respond to attacks 0:04:51.680 --> 0:04:55.320 on the United States without a declaration of war under 0:04:55.400 --> 0:04:58.680 international law. And common sense. You'd be hard pressed to 0:04:58.839 --> 0:05:03.400 argue otherwise. But there's no clear answer here as to 0:05:03.440 --> 0:05:06.440 whether the United States was actually threatened at this time 0:05:06.520 --> 0:05:10.440 by Iran. And Trump did not go to Congress. He 0:05:10.680 --> 0:05:15.159 informed some Republicans that we were likely to strike Iran 0:05:15.320 --> 0:05:17.600 because they had moved closer to the production of a 0:05:17.680 --> 0:05:21.080 nuclear weapon, but that's far short of asking Congress for 0:05:21.160 --> 0:05:23.039 permission to go ahead. 0:05:22.760 --> 0:05:23.160 And do it. 0:05:23.200 --> 0:05:26.080 The Justice Department gave very tepid support to it and 0:05:26.120 --> 0:05:28.840 said he had the authority to do it under the Constitution, 0:05:29.400 --> 0:05:33.120 but probably go no further. But unlike even in Syria, 0:05:33.279 --> 0:05:38.120 where Congress has funded military operations, there's no specific funding 0:05:38.160 --> 0:05:42.000 that anyone could point to that would give Trump the 0:05:42.240 --> 0:05:47.720 outright legal authority to launch strikes into Iran. So what 0:05:47.760 --> 0:05:51.560 we're left with is, is there something that a president 0:05:51.760 --> 0:05:56.000 has under the Constitution that's not written in the Constitution, 0:05:56.160 --> 0:05:59.520 that's inherent that would allow the president to strike under 0:05:59.560 --> 0:06:03.599 these ccumstances or not. And you know, by and large, 0:06:03.800 --> 0:06:07.000 Congress has decided not to weigh in on these issues. 0:06:07.040 --> 0:06:09.320 They had an opportunity to do it with the Nixon 0:06:09.400 --> 0:06:14.200 impeachment in nineteen seventy four over Nixon's expansion of the 0:06:14.200 --> 0:06:18.120 war into Cambodia, but the senior Democrats on the House 0:06:18.240 --> 0:06:20.640 Judiciary Committee said, no, we're not going to include that 0:06:20.720 --> 0:06:22.839 as an article of impeachment. We've got them on the 0:06:22.920 --> 0:06:26.600 other stuff. And ever since then, Congress has given presidents 0:06:26.640 --> 0:06:29.800 a pass for violating the War Powers Act. You know, 0:06:29.839 --> 0:06:34.480 you'll hear members of Congress on both sides say it's illegal, 0:06:34.480 --> 0:06:37.640 it's unconstitutional, but those are usually members on the extreme 0:06:37.680 --> 0:06:40.200 wings of their party, you know, the Ran Paul's or 0:06:40.240 --> 0:06:45.120 the aocs doing that. And so unfortunately, Congress has kind 0:06:45.120 --> 0:06:48.840 of acquiesced to this idea of a more empowered president 0:06:48.920 --> 0:06:51.640 than ever before, and the courts won't roll on it. 0:06:52.400 --> 0:06:56.279 You mentioned the War Powers Act of nineteen seventy three. 0:06:57.120 --> 0:07:00.480 Tell us what that requires of the president and how 0:07:00.480 --> 0:07:01.400 it fits in here. 0:07:02.279 --> 0:07:04.600 So, you know, if you go back to the Vietnam 0:07:04.760 --> 0:07:09.080 conflict and the Gulf of Tonkin Resolution, Congress wanted to 0:07:09.080 --> 0:07:12.640 sort of make amends for punting on the war and 0:07:12.760 --> 0:07:16.360 allowing Lyndon Johnson to go from sixteen thousand, you know, 0:07:16.440 --> 0:07:19.920 military advisors under the Gulf of Tonkin Resolution to almost 0:07:19.960 --> 0:07:24.800 six hundred thousand servicemen and women fighting in the Vietnam War, 0:07:25.440 --> 0:07:28.440 and also make sure that a president does not expand 0:07:28.520 --> 0:07:31.840 wars like Nixon did into you know, the aerial attack 0:07:31.960 --> 0:07:35.440 in Cambodia in nineteen sixty nine and the invasion in 0:07:35.520 --> 0:07:38.480 seventy and then the air war again in nineteen seventy 0:07:38.600 --> 0:07:42.360 two seventy three. So in nineteen seventy three, Congress passes 0:07:42.400 --> 0:07:46.040 this War Powers Act, Nixon vetos it, but then Congress 0:07:46.160 --> 0:07:50.160 passes it over the veto. So it's a really robust act. 0:07:50.400 --> 0:07:53.800 And here are the provisions of the Act that if 0:07:53.880 --> 0:07:58.080 there's an absence of a declaration of war by Congress, 0:07:58.360 --> 0:08:02.240 the President of the United States has to routinely consult 0:08:02.280 --> 0:08:06.640 with Congress until US armed forces are no longer engaged. 0:08:06.720 --> 0:08:10.080 Now we know that didn't happen in this incident. I mean, 0:08:10.120 --> 0:08:13.080 obviously it was a one time air strike. But it 0:08:13.240 --> 0:08:15.640 seems to me that there was a violation of a 0:08:15.720 --> 0:08:19.640 War Powers Act when President Trump brought in a couple 0:08:19.680 --> 0:08:22.640 of trusted Republicans into the office and said, hey, we're 0:08:22.640 --> 0:08:23.640 going to go ahead. 0:08:23.360 --> 0:08:23.760 And do this. 0:08:24.200 --> 0:08:26.840 The president has to do it in forty eight hours 0:08:26.880 --> 0:08:29.720 in writing to the Speaker of the House of Representative 0:08:30.040 --> 0:08:33.160 after the strike that didn't seem to be done either. 0:08:33.679 --> 0:08:36.080 Then there's other parts of the War Powers Act which 0:08:36.120 --> 0:08:40.440 don't necessarily apply right now, but they could, and that is, 0:08:40.760 --> 0:08:44.880 if the president deploys ground forces or air forces passed 0:08:44.880 --> 0:08:49.080 sixty days, it would need congressional approval to do so. 0:08:50.120 --> 0:08:52.600 And I don't think that's going to come into play, 0:08:52.760 --> 0:08:56.440 considering Trump has argued that there's a cease fire that exists, 0:08:56.440 --> 0:08:58.840 and there seems to be something of a tenuous cease 0:08:58.880 --> 0:09:03.319 fire before. Trump seem to have violated the War Powers 0:09:03.360 --> 0:09:07.800 Act in Somalia forming Yugoslavia with Bill Clinton, George W. 0:09:07.920 --> 0:09:09.240 Bush and the like. 0:09:09.600 --> 0:09:09.800 You know. 0:09:09.880 --> 0:09:12.679 On the other hand, one could make the argument that 0:09:12.760 --> 0:09:15.800 if you have forward deployed B two bombers in Diego, 0:09:15.840 --> 0:09:20.200 Garcier or Guam place to strike Iran again, the president 0:09:20.280 --> 0:09:23.160 has to get specific approval from Congress to do that. 0:09:23.240 --> 0:09:25.760 They're going to say he doesn't, and I think you'll 0:09:25.880 --> 0:09:29.240 hear some grumbling in Congress. Democrats will say he does, 0:09:29.240 --> 0:09:30.400 but it'll go nowhere. 0:09:30.840 --> 0:09:33.800 Has anyone tried to get the courts involved in this before? 0:09:34.520 --> 0:09:37.439 Yeah, So what the courts have said, basically is that 0:09:37.640 --> 0:09:42.640 this question is a nonju justiciable political question. In other words, 0:09:42.640 --> 0:09:47.200 it's outside of the competency of the federal judiciary to 0:09:47.320 --> 0:09:52.280 roll upon. It's the political question, and therefore it goes 0:09:52.360 --> 0:09:54.760 to the Congress to do with what they may. They 0:09:54.760 --> 0:09:58.240 can impeach a president, they have the power of the purse, 0:09:58.320 --> 0:10:01.680 they can inquire and the but the Court simply will 0:10:01.720 --> 0:10:04.720 not respond directly on this point. And you know, on 0:10:04.800 --> 0:10:07.800 top of that, there have been members of the Supreme 0:10:07.880 --> 0:10:12.360 Court Scalia, notably that question whether the War Powers Act 0:10:12.480 --> 0:10:16.640 was even constitutional. But again, that Act has never seen 0:10:16.720 --> 0:10:19.840 the light of day in the Supreme Court because of 0:10:19.880 --> 0:10:21.880 the political question doctrine. 0:10:22.120 --> 0:10:25.200 Coming up next, what about an authorization for the use 0:10:25.240 --> 0:10:29.400 of military force? President George W. Bush was the last 0:10:29.559 --> 0:10:34.040 US president to successfully seek one in separate request for 0:10:34.120 --> 0:10:38.520 Afghanistan and Iraq before ordering invasions of those countries in 0:10:38.640 --> 0:10:41.439 two thousand and one. In two thousand and three, I'm 0:10:41.520 --> 0:10:44.880 June Grosso. When you're listening to Bloomberg, Democrats and some 0:10:44.920 --> 0:10:50.720 Republicans are criticizing President Trump's decision to attack Iran's nuclear sites, 0:10:51.080 --> 0:10:55.640 saying the strikes were unconstitutional and illegal because Trump didn't 0:10:55.679 --> 0:11:00.880 get approval from Congress or consult with lawmakers beforehand. In fact, 0:11:00.920 --> 0:11:05.880 today House Democratic Caucus Chair Pete Aguilar complained that members 0:11:05.960 --> 0:11:09.880 of Congress still hadn't gotten a briefing from the Trump administration, 0:11:10.320 --> 0:11:13.079 though one had been scheduled and then canceled. 0:11:13.400 --> 0:11:17.280 It is completely unacceptable that Congress has not been briefed 0:11:17.800 --> 0:11:21.280 on this in a timely fashion. We need evidence, we 0:11:21.320 --> 0:11:25.199 need details, and we need to know them now. There 0:11:25.200 --> 0:11:29.120 are a number of outstanding questions, including whether this attack 0:11:29.280 --> 0:11:34.439 achieved the administration's stated goals. Launching an attack without congressional 0:11:34.480 --> 0:11:36.760 authorization is wrong, but. 0:11:36.800 --> 0:11:40.680 Trump administration officials have said the strikes don't meet the 0:11:40.760 --> 0:11:45.400 definition of war, and House Speaker Republican Mike Johnson has 0:11:45.400 --> 0:11:48.679 said he doesn't think a war powers resolution is necessary. 0:11:49.000 --> 0:11:52.520 The manner chief has Article two responsibilities. They're very serious 0:11:52.520 --> 0:11:55.360 and important, especially in times like this. I think he 0:11:55.440 --> 0:11:57.360 used that authority judiciously. 0:11:58.000 --> 0:12:02.920 Democratic Senator Tim Kaine Virginia has introduced a war powers 0:12:02.960 --> 0:12:07.080 resolution against Trump, seeking to bar the president from taking 0:12:07.200 --> 0:12:12.280 further military action in Iran without congressional approval. As of yet, 0:12:12.440 --> 0:12:15.400 a vote on that resolution has not been scheduled. A 0:12:15.440 --> 0:12:19.520 similar resolution has been introduced by lawmakers from both parties 0:12:19.559 --> 0:12:23.280 in the US House. I've been talking to Joshua Castenberg, 0:12:23.400 --> 0:12:26.280 a professor at the University of New Mexico Law School 0:12:26.520 --> 0:12:29.720 and a former judge and prosecutor in the US Air Force. 0:12:30.280 --> 0:12:34.960 Let's talk about an authorization for the use of military force. 0:12:35.800 --> 0:12:40.120 George W. Bush was the last president to successfully seek 0:12:40.160 --> 0:12:44.120 an authorization for the use of military force in separate 0:12:44.160 --> 0:12:49.200 requests in Afghanistan and Iraq before ordering invasions of those 0:12:49.280 --> 0:12:52.520 countries in two thousand and one. In two thousand and three. 0:12:53.160 --> 0:12:56.600 Where would that fit in in this scenario. 0:12:56.040 --> 0:12:59.520 Well, you know, if Congress gives the president the authorization 0:12:59.640 --> 0:13:03.360 for the US is the military force. In many instances 0:13:03.440 --> 0:13:07.560 that make sense because if you're fighting a non state 0:13:07.679 --> 0:13:11.840 actor like al Qaeda, you can't really declare war on 0:13:11.960 --> 0:13:15.040 a non state actor. And so what Congress is essentially 0:13:15.160 --> 0:13:18.440 saying to a president is we're going to fund the 0:13:18.440 --> 0:13:23.319 military campaign against al Qaeda, you know, against Iraq. The 0:13:23.360 --> 0:13:26.360 Congress didn't want it, for whatever reason, declare war against 0:13:26.520 --> 0:13:29.080 sade Mussein in the Iraqi government because it would have 0:13:29.080 --> 0:13:31.960 been applied, I suppose, but it was a declaration of 0:13:32.000 --> 0:13:34.880 war against the Iraqi people, and they wanted to avoid that. 0:13:35.440 --> 0:13:38.679 So they authorized the use of military forces in Iraq, 0:13:38.800 --> 0:13:44.240 but specifically to remove weapons of mass destruction. So it's 0:13:44.360 --> 0:13:47.560 like an authorization for the use of force short of 0:13:47.600 --> 0:13:51.160 a declaration of war, you know, for a defined purpose 0:13:51.240 --> 0:13:54.480 and an agreement with the executive branch that there will 0:13:54.520 --> 0:13:58.520 be funding for that military operation. Like I said, it's 0:13:58.600 --> 0:14:02.000 far short of a declaration of war, but it at 0:14:02.120 --> 0:14:05.720 least is a constitutional process. 0:14:05.240 --> 0:14:09.480 When there are sustained military actions. Have presidents in the 0:14:09.520 --> 0:14:14.480 past generally sought approval from Congress? 0:14:14.559 --> 0:14:17.800 Well, yeah, I mean George W. Bush, you know, sought 0:14:17.840 --> 0:14:21.800 approval from Congress for funding for the authorization for the 0:14:21.920 --> 0:14:26.200 use of force against both you know, Afghanistan, al Qaeda 0:14:26.240 --> 0:14:31.280 and Iraq. President Obama sought continuing appropriations. I think there 0:14:31.320 --> 0:14:35.200 was an authorization thought by Ronald Reagan in regard to 0:14:35.760 --> 0:14:39.120 you know, the Caribbean Island. You know, it seems like 0:14:39.160 --> 0:14:42.760 so many many years ago, you know, Lyndon Johnson sought 0:14:42.800 --> 0:14:47.120 an authorization for funding for the Dominican Republic operations of 0:14:47.200 --> 0:14:51.920 nineteen sixty five. But here when we have this attack 0:14:52.200 --> 0:14:55.920 on Iranian nuclear sites, there's been no request for the 0:14:56.040 --> 0:14:57.800 use of force. It was just done. 0:14:58.160 --> 0:15:01.200 Is that sort of in line with what a lot 0:15:01.240 --> 0:15:04.080 of other presidents have done. I mean, we've seen a 0:15:04.120 --> 0:15:08.840 lot of targeted attacks ordered by presidents, and it seems 0:15:08.880 --> 0:15:12.720 like in recent years neither party has sought to limit 0:15:13.400 --> 0:15:16.560 the president's authority in matters like this. 0:15:17.600 --> 0:15:20.840 Yeah, I mean this in a sense, Trump isn't really 0:15:21.760 --> 0:15:25.320 doing something novel. You can go back to, you know, 0:15:25.360 --> 0:15:29.760 the Navy patrolling the Straits and Foremos during the Reagan administration, 0:15:29.960 --> 0:15:34.400 and we certainly engaged in some firefights with the Iranian 0:15:34.440 --> 0:15:38.080 military in those days. You know, it's a question about 0:15:38.520 --> 0:15:42.360 what exactly was permissible in Syria during you know, the 0:15:42.400 --> 0:15:47.440 Obama and first Trump administration. Same with with Libya. But 0:15:47.760 --> 0:15:53.320 there was consultation with Congress during that time. Not necessarily 0:15:53.480 --> 0:15:57.320 popular support in Congress, but at least there was consultations 0:15:57.360 --> 0:16:02.600 with Congress over those operations. What sets this apart is 0:16:02.960 --> 0:16:06.160 it doesn't seem like there was a consultation with Congress 0:16:06.240 --> 0:16:11.160 before the strike, and I think that makes this situation unique. 0:16:11.200 --> 0:16:14.680 And some people might say, well, that's incredibly nuanced, but 0:16:14.720 --> 0:16:20.359 it does separate it from from prior military action because. 0:16:20.200 --> 0:16:23.080 There's a difference between informing and consulting. 0:16:23.920 --> 0:16:28.440 Well, there is absolutely and consulting seems to me that 0:16:28.560 --> 0:16:32.600 you have trusted leaders in both parties and you don't 0:16:32.640 --> 0:16:35.520 just cherry pick and say, well, I'm going to get 0:16:35.560 --> 0:16:38.640 my yes people around me, be four or five of them, 0:16:38.640 --> 0:16:40.760 and say hey, we're going to do this, but don't 0:16:40.800 --> 0:16:44.320 share it with anybody else. I mean, consulting means that 0:16:44.800 --> 0:16:48.200 the committees, you know, the Armed Services Committee or the 0:16:48.240 --> 0:16:53.000 Intelligence Committee, generally those committees, particularly in the Senate, get 0:16:53.040 --> 0:16:56.880 along with each other. Those are the non contentious, you 0:16:56.920 --> 0:17:01.640 know committees. Generally, they're trust worthy, and that's who presidents 0:17:01.680 --> 0:17:02.720 have consulted with. 0:17:03.200 --> 0:17:08.040 And Congressional leaders are still waiting for their classified briefing 0:17:08.119 --> 0:17:11.919 that was scheduled for today and then canceled and apparently 0:17:12.240 --> 0:17:16.879 not rescheduled yet. Thanks so much, Josh. That's Professor Johnshua 0:17:16.960 --> 0:17:20.159 Castenberg of the University of New Mexico Law School. 0:17:20.400 --> 0:17:24.760 Good afternoon. I'm here today with an incredible group of champions, 0:17:24.880 --> 0:17:31.480 members of Congress, and advocates for reproductive freedom here in 0:17:31.520 --> 0:17:36.560 the United States of America. Today we solemnly gathered to 0:17:36.680 --> 0:17:43.000 mark the anniversary of the Dobbs decision, one of the 0:17:43.000 --> 0:17:49.199 most unconscionable and Unamerican decisions in the history of the 0:17:49.280 --> 0:17:51.080 United States of America. 0:17:51.640 --> 0:17:56.240 House Minority Leader Hakim Jeffries joined with other Democratic members 0:17:56.280 --> 0:17:59.520 of the House to mark the third anniversary of the 0:17:59.560 --> 0:18:04.280 Supreme Court decision that took away the constitutional right to abortion, 0:18:04.920 --> 0:18:08.400 established nearly fifty years earlier in the case of Roe 0:18:08.480 --> 0:18:12.439 versus Wade. The Dobbs decision represented the first time in 0:18:12.480 --> 0:18:16.040 our country's history that the Court has taken away a 0:18:16.119 --> 0:18:21.760 constitutional right. The decision upended the politics of abortion. Seventeen 0:18:21.880 --> 0:18:25.840 states have six week or total bans on abortion, and 0:18:25.960 --> 0:18:29.760 now anti abortion activists are pushing for new restrictions on 0:18:29.880 --> 0:18:34.040 prescribing and dispensing mifipristone, the method that has become the 0:18:34.040 --> 0:18:38.400 most widely used form of abortion care today. Democratic Senator 0:18:38.440 --> 0:18:43.800 Patty Murray of Washington warned about the possible consequences of 0:18:43.840 --> 0:18:47.359 the review of the data on mifipristone ordered by Health 0:18:47.400 --> 0:18:50.840 and Human Services Secretary Robert F. Kennedy Junior. 0:18:51.160 --> 0:18:55.560 Trump's FDA recently announced it will undertake a comprehensive review 0:18:55.880 --> 0:19:00.400 of mifipristone. Why because of discredited junk sign It's from 0:19:00.400 --> 0:19:04.760 the same anti abortion activists who helped write Project twenty 0:19:04.800 --> 0:19:08.920 twenty five, and unfortunately we know exactly where this is going. 0:19:09.440 --> 0:19:15.840 Trump ripping Christone off the shelves, reinstating unnecessary restrictions, banning 0:19:16.000 --> 0:19:21.000 telehealth prescriptions, and curtailing access in every single state. 0:19:21.560 --> 0:19:24.679 My guest is healthcare attorney Harry Nelson, a partner at 0:19:24.720 --> 0:19:29.320 leech Tishman Nelson Hardiman. Harry tell us about the landscape 0:19:29.359 --> 0:19:34.280 of abortion since the Supreme Court's Dobbs decision, which overturned 0:19:34.359 --> 0:19:35.520 roe versus Wade. 0:19:35.760 --> 0:19:39.040 Today is the third anniversary of the Dobbs decision overturning 0:19:39.119 --> 0:19:41.960 Roby Wade. So what happened in the last three years 0:19:42.080 --> 0:19:44.320 is that, depending on how you count, twelve or thirteen 0:19:44.400 --> 0:19:50.040 states have enacted what are effectively near total bans prohibiting abortion. 0:19:50.800 --> 0:19:54.040 In a handful of states to Dave's mother's life, about 0:19:54.160 --> 0:19:58.639 five or six dates have passed partial bans by putting 0:19:58.840 --> 0:20:03.480 early justational limits where any kind of abortion is banned 0:20:03.680 --> 0:20:08.200 after a fetal heartbeat is detected, which is usually six weeks. 0:20:08.560 --> 0:20:11.879 So between those two categories we have nineteen or twenty 0:20:11.920 --> 0:20:14.040 states that have put in bands that we have a 0:20:14.040 --> 0:20:17.480 few other states that have put in second trimester bans 0:20:17.520 --> 0:20:21.760 on abortions that we're legal in the time of Roe v. Wade, 0:20:22.040 --> 0:20:24.840 So that's been a huge restriction. We've had voters in 0:20:24.880 --> 0:20:27.919 a number of states, you know, voting to keep abortion 0:20:28.080 --> 0:20:33.480 rights in place, in states like Missouri and Arizona, states 0:20:33.480 --> 0:20:36.000 where they struck down bands. And then there's legislation in 0:20:36.040 --> 0:20:41.120 at least ten or twelve states to protect abortion rights 0:20:41.119 --> 0:20:45.320 more expansively, including to allow doctors in those states to 0:20:45.600 --> 0:20:49.520 practice across state lines through what are called shield laws. 0:20:49.680 --> 0:20:53.320 So we've seen really a complete remaking and carving up 0:20:53.400 --> 0:20:58.119 of the map of different states taking hostile positions, taking 0:20:58.160 --> 0:21:01.720 protective positions, and a very different looking America than we 0:21:01.760 --> 0:21:03.920 had with respect to abortion three years ago. 0:21:04.359 --> 0:21:07.399 Harriet may seem surprising to some that despite all the 0:21:07.480 --> 0:21:11.679 states with near or total bands on abortion, that the 0:21:11.760 --> 0:21:15.800 number of abortions in this country has steadily increased according 0:21:15.880 --> 0:21:20.119 to new data from the Society of Family Planning. Explain 0:21:20.119 --> 0:21:22.040 why the numbers are increasing. 0:21:22.160 --> 0:21:26.040 Yeah, it's a really interesting phenomenon. I think in many ways, 0:21:26.080 --> 0:21:30.280 the discussion of all these abortion restrictions has kind of 0:21:30.359 --> 0:21:36.680 drawn attention to the availability of abortion via telemedicine and 0:21:36.920 --> 0:21:40.840 via medications that women can take in the privacy of 0:21:40.880 --> 0:21:44.200 their own homes. So we've created a much greater level 0:21:44.240 --> 0:21:48.360 of awareness of abortion options. We've created just a much 0:21:48.359 --> 0:21:53.840 more educated group of patients who understand what their options are, 0:21:53.880 --> 0:21:56.919 and we've created options for cross state patient flows, so 0:21:56.920 --> 0:22:01.920 we've seen some patients traveling, some patients ordering medications online. 0:22:02.040 --> 0:22:05.119 So if the goal was to actually shrink the number 0:22:05.200 --> 0:22:08.359 of total abortions, there's actually not only no evidence that 0:22:08.520 --> 0:22:11.200 the repeal did that, but we've actually had some kind 0:22:11.240 --> 0:22:14.080 of a modest increase in the total volume of abortion. 0:22:14.600 --> 0:22:18.520 So medication abortion has become the most widely used form 0:22:19.080 --> 0:22:22.400 of abortion. It accounted for sixty three percent of all 0:22:22.480 --> 0:22:27.879 abortions nationwide in twenty twenty three. But anti abortion activists 0:22:27.960 --> 0:22:33.879 are pushing for new restrictions on prescribing and dispensing the 0:22:33.920 --> 0:22:39.600 abortion drug mifipristone, and now Health and Human Services Secretary 0:22:39.720 --> 0:22:44.879 Robert F. Kennedy Junior has ordered a review of mifa pristone. 0:22:45.640 --> 0:22:49.200 Is that, as ominous as it sounds, MiFi pristone has 0:22:49.240 --> 0:22:53.800 been found to be effective and safe in studies. 0:22:54.040 --> 0:22:59.520 So the opening of pellamedicine as a means of women 0:22:59.600 --> 0:23:04.800 getting mifipristone by mail really opened up in the pandemic 0:23:04.960 --> 0:23:07.280 as a result of the dropping of some of the 0:23:07.400 --> 0:23:11.640 restrictions on telemedicine and mailing of publications. In the case 0:23:11.680 --> 0:23:15.240 of abortion, we had had a restriction in place through 0:23:15.280 --> 0:23:19.880 an FDA process called REM's Risk Evaluation and Mitigation Strategies, 0:23:20.200 --> 0:23:23.000 by which the medication had only been available on an 0:23:23.040 --> 0:23:26.119 in person basis. There was a required in person review, 0:23:26.440 --> 0:23:30.120 so that went away basically in twenty twenty one, and 0:23:30.160 --> 0:23:31.800 that had been the law. We had a challenge last 0:23:31.880 --> 0:23:33.960 year in the Spreme Court, where the Supreme Court unanimously 0:23:34.080 --> 0:23:37.440 ruled that in the Alliance Forrismocratic Medicine case that there 0:23:37.480 --> 0:23:40.280 was no standing to challenge the FDA's authority. But what 0:23:40.400 --> 0:23:45.199 happened in May last month was that RFK, as Secretary 0:23:45.240 --> 0:23:48.240 of the Department of Health and Human Services, directed the 0:23:48.320 --> 0:23:52.160 FDA Commissioner to review the safety data, essentially to consider 0:23:52.200 --> 0:23:57.320 whether there are elevated complication rates. Many people who are 0:23:57.400 --> 0:24:02.040 observing this believe that this was a freak to essentially 0:24:02.119 --> 0:24:07.719 a rollback of the allowance for telemedicine and mailing of 0:24:07.840 --> 0:24:11.520 mifipristone by the FDA and a return to some kind 0:24:11.560 --> 0:24:14.480 of restriction on the drug. Obviously, there's a lot of 0:24:14.520 --> 0:24:18.840 concern because the clinical data does not suggest any tightened 0:24:18.960 --> 0:24:21.880 risk or any problems that are occurring as a result 0:24:22.040 --> 0:24:25.480 of the greater access and accessibility of mephipristone. So a 0:24:25.520 --> 0:24:27.879 lot of people are worried that what is happening right 0:24:27.920 --> 0:24:30.399 now is kind of a lead up to an action 0:24:30.600 --> 0:24:33.520 later this year or next year to kind of roll 0:24:33.600 --> 0:24:38.440 back the availability of telemedicine and mailing of medications through 0:24:38.680 --> 0:24:39.440 FDA restriction. 0:24:39.840 --> 0:24:44.480 Has the Trump administration also tried in different ways to 0:24:44.560 --> 0:24:46.920 restrict access to abortions. 0:24:47.160 --> 0:24:49.479 There are a number of other places where we can 0:24:49.520 --> 0:24:52.760 see that the administration is acting to restrict access to abortion. 0:24:52.920 --> 0:24:55.840 We've seen a change in the hip Hop privacy rules 0:24:55.840 --> 0:25:00.720 where certain protections were put in to limit access to 0:25:01.040 --> 0:25:06.120 records of providers and use privacy to protect interstate inquiries. 0:25:06.160 --> 0:25:09.879 That executive order has been essentially canceled by the Trump administration. 0:25:09.960 --> 0:25:13.280 We've had the Trump administration, through Health and Human Services, 0:25:13.520 --> 0:25:17.719 dropping requirements that were imposed in the Biden administration that 0:25:17.800 --> 0:25:22.280 hospitals you must provide abortion in life threatening emergencies. We've 0:25:22.280 --> 0:25:26.240