Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
Speaker 1: Elane Maxwell is serving a twenty year sentence for her
Speaker 1: role in a scheme to sexually exploit and abuse minor
Speaker 1: girls with Jeffrey Epstein. This week, Maxwell asked the Supreme
Speaker 1: Court to take up her appeal of her federal sex
Speaker 1: trafficking conviction. Her appeal is based on a non prosecution
Speaker 1: agreement that Epstein struck with federal prosecutors in Miami in
Speaker 1: two thousand and seven, and Maxwell argues it should have
Speaker 1: barred her prosecution in New York fourteen years later. Joining
Speaker 1: me is former federal prosecutor Robert Mintz, a partner Macarter
Speaker 1: in English. Bob start by telling us about this broad
Speaker 1: non prosecution agreement that Epstein reached with federal prosecutors in
Speaker 1: two thousand and seven.
Speaker 2: The document that's at the heart of the Galaine Maxwell
Speaker 2: appeal to the Supreme Court is a non prosecution agreement
Speaker 2: that was signed in two thousand and seven with the
Speaker 2: US Attorney in Southern Florida involving Jeffrey Epstein, and in
Speaker 2: that case he was facing both federal and potential state charges.
Speaker 2: The deal that he ultimately Struck allowed him to plead
Speaker 2: guilty to two Florida state charges, and in exchange for that,
Speaker 2: the Department of Justice agreed not to bring any federal
Speaker 2: charges against him. But the critical language in the agreement
Speaker 2: said that the United States also agrees that it will
Speaker 2: not institute any criminal charges against any potential co conspirators
Speaker 2: of Epstein. And that is the language that Maxwell's lawyers
Speaker 2: have lacked onto to argue that her subsequent sex trafsking
Speaker 2: charges in New York were actually barred by that non
Speaker 2: prosecution agreement.
Speaker 1: How unusual is it to have a non prosecution agreement
Speaker 1: made by one US attorney bind other US attorneys in
Speaker 1: different districts.
Speaker 2: That would be highly unusual. As a federal prosecutor, I
Speaker 2: had been involved in hundreds of plea agreements, and the
Speaker 2: standard language in all these plea agreements says that that
Speaker 2: agreement is limited to the district that is prosecuting you
Speaker 2: or potentially prosecuting you in that case, and that it
Speaker 2: expressly does not bind any other district in the country.
Speaker 2: So to have language as broad as that which says
Speaker 2: that the US attorney in the southern districts of Florida
Speaker 2: can bind every other judicial district in the United States
Speaker 2: is something that would be highly unusual. But nonetheless, the
Speaker 2: language that was in that agreement is on its face,
Speaker 2: very broad, and that is at the heart of the
Speaker 2: Maxwell appeal before the Supreme Court.
Speaker 1: What about the fact that in Jeffrey Epstein's n on
Speaker 1: prosecution agreement US attorney is also promising not to prosecute
Speaker 1: anyone else? Does that happen?
Speaker 2: Typically, what a plea ariement will say is that in
Speaker 2: exchange for a plead or particular crime, the US Attorney's
Speaker 2: office will not prosecute that individual for any other crimes
Speaker 2: related to that criminal activity. It doesn't typically say anything
Speaker 2: about not bringing charges against any other individual. So in
Speaker 2: this case, that language is incredibly broad because it talks
Speaker 2: about not bringing any other federal charges against any unspecified
Speaker 2: co conspirators. It doesn't even list who those individuals may be,
Speaker 2: So it makes that language incredibly broad. And that's why
Speaker 2: when that case was first appeal to the Second Circuit
Speaker 2: Court of appealed, the Second Circuit did not agree that
Speaker 2: that plea agreement barred the prosecution in New York that
Speaker 2: was ultimately against Gallaine Maxwell.
Speaker 1: That Epstein non prosecution agreement has been widely criticized. In fact,
Speaker 1: the Justice Department said in twenty twenty that then US
Speaker 1: Attorney for the South District of Florida, alex Acosta, used
Speaker 1: poor judgment in handling the case, and the Second Circuit
Speaker 1: reviewed the NPA before upholding her conviction.
Speaker 2: The central question raised by Maxwell's appeals to the Supreme
Speaker 2: Court is whether a promise on behalf of the United
Speaker 2: States that is made by one US attorney in one
Speaker 2: district combined federal prosecutors in other districts. But it really
Speaker 2: is more complex than even that, because here it involved
Speaker 2: not a situation where the individual who pled guilty in
Speaker 2: Florida is being prosecuted by another US attorney's office and
Speaker 2: another part of the country. We're talking about another person
Speaker 2: who was not even a party to that plea agreement
Speaker 2: in Florida, arguing that the plea agreement with Jeffrey Epstein
Speaker 2: somehow barres a prosecution of Glaine Maxwell in New York
Speaker 2: many years later, So it would be an incredibly broad
Speaker 2: reading of that language. And in fact, the Second Circuit
Speaker 2: Court of Appeals looked at the plea agreement and said
Speaker 2: that on its face, while it's possible that the United
Speaker 2: States could conceivably refer to the entire federal government. When
Speaker 2: they look at the context and the entirety of that
Speaker 2: non prosecution agreement, it makes clear that when they refer
Speaker 2: to the government or to the United States, they're only
Speaker 2: referring to the US Attorney's office in the Southern District
Speaker 2: of Florida. And therefore that language, as Glaine Maxwell' attorneys
Speaker 2: are arguing, is really being taken out of context because
Speaker 2: it really involved only the Southern District of Florida. But
Speaker 2: once again, there's really two questions that are being raised here.
Speaker 2: One is whether it could apply to other US Attorney's
Speaker 2: offices as against the individual who's pleading guilty in Florida.
Speaker 2: But also here talking about another individual, not even a
Speaker 2: party to the Florida agreement, who's trying to use it
Speaker 2: as a bart prostitution in another district.
Speaker 1: The Justice Department file paper is asking the Supreme Court
Speaker 1: not to take Maxwell's case.
Speaker 2: Yeah, the Justice Department is opposing Maxwell's petition and essentially
Speaker 2: arguing that it's clear in the context of that non
Speaker 2: prosecution agreement that it was only referring to the Southern
Speaker 2: District of Florida and was not attempting to bind other
Speaker 2: judicial districts around the country.
Speaker 1: Gleam Maxwell's attorneys are saying that there's a split in
Speaker 1: the circuits, and that is something that the Supreme Court
Speaker 1: often considers when taking a case. But they received thousands
Speaker 1: of petitions every year, and they grant review in fewer
Speaker 1: than one hundred, so the odds of the Supreme Court
Speaker 1: granting review here are pretty slim.
Speaker 2: So that's exactly right. It's very rare for the Supreme
Speaker 2: Court to take these appeals. They do receive thousands of petitions,
Speaker 2: it takes four justices to grant review, and it seems,
Speaker 2: in my opinion, unlikely they're going to take this because
Speaker 2: while there may be a split in the circuits around
Speaker 2: the country, this is not an issue that comes up
Speaker 2: on a regular basis, and I think in this case,
Speaker 2: the Supreme Court is likely just to leave the Second
Speaker 2: Circuit decision in place and not take it up.
Speaker 1: This case is unusual in a lot of different ways,
Speaker 1: one being that her attorney not only appeal to the
Speaker 1: Supreme Court but also appeal to President Trump, saying, quote,
Speaker 1: President Trump built his legacy in part on the power
Speaker 1: of a deal, and surely he would agree that when
Speaker 1: the United States gives its word, it must stand by it.
Speaker 2: Yeah, so what we're seeing here really is the court
Speaker 2: filing in the form of this petition to the United
Speaker 2: States Supreme Court that, on his face, is fairly typical.
Speaker 2: They're raising a le issue. They're arguing that there is
Speaker 2: a split in the federal circuits, which is something that
Speaker 2: the Supreme Court considers when it decides whether or not
Speaker 2: to take a case, and they're trying to argue that
Speaker 2: the question of whether one US attorney's office can in
Speaker 2: fact bind the entire United States is something that's important
Speaker 2: enough that the Supreme Court ought to take it up.
Speaker 2: On the other hand, you cannot ignore the fact that
Speaker 2: there is a political backdrop to this appeal, in that
Speaker 2: there's been tremendous backlash against the Department of Justice and
Speaker 2: some of President Trump's supporters regarding the decision, not really
Speaker 2: additional information related to the Jeffrey Epstein prosecution, and all
Speaker 2: of that is getting swept up in this Supreme Court appeal,
Speaker 2: which is why we're seeing her lawyer appeal not only
Speaker 2: to the Supreme Court, but expressly appealing to President Trump.
Speaker 2: In the reply brief that was just recently filed with
Speaker 2: the Supreme Court. Her lawyer specifically referenced not only the
Speaker 2: United States Supreme Court where the brief was filed, but
Speaker 2: also mans President Trump and said, we are appealing not
Speaker 2: only to the Supreme Court, but to the President himself
Speaker 2: to recognize how profoundly unjust it is to scapegoat Delanne
Speaker 2: Maxwell for Epstein's crime, especially when the government promised he
Speaker 2: would not be prosecuted. So this is a quite direct
Speaker 2: appeal not only to the court but also to President
Speaker 2: Trump in the hope that maybe he will pardon her
Speaker 2: or reduce her sentence, because they know that it's unlike
Speaker 2: the Supreme Court is going to take this appeal.
Speaker 1: The court filing, of course, doesn't refer to the let's
Speaker 1: say unusual out of court developments, like her meeting last
Speaker 1: week with the Deputy Attorney General Todd Blanche for two days.
Speaker 1: She was also subpoena to testify by the House Oversight Committee,
Speaker 1: and her attorney put conditions on her testimony. In addition
Speaker 1: to immunity, he wanted to be provided with the questions
Speaker 1: the lawmakers inten to ask her, and he asked that
Speaker 1: the deposition be rescheduled until after her appeal is resolved
Speaker 1: before the Supreme Court. The court won't even be in
Speaker 1: session until October. Are his requests within the scope of
Speaker 1: what a defense attorney would normally request if his client
Speaker 1: who was waiting on an appeal was asked to testify
Speaker 1: before Congress.
Speaker 2: Yeah, these are not really unusual requests given her circumstance.
Speaker 2: But there also requests that the House Oversight Committee has
Speaker 2: already determined they would not grant. What the defense lawyer
Speaker 2: here is really trying to do is to protect his
Speaker 2: client who is actively seeking post conviction relief, both in
Speaker 2: the pending petition before the United States Supreme Court and
Speaker 2: in a habeas petition they intend to file, and he
Speaker 2: is arguing that her testimony before the committee could compromise
Speaker 2: her constitutional rights to prejudice her legal claims and could
Speaker 2: potentially take a future jury if the Supreme Court were
Speaker 2: to take the case and overturn the lower course decision
Speaker 2: and remand the case for another trial. So those requests
Speaker 2: are really not unusual, but it was also highly unlikely
Speaker 2: that they were going to be granted by the committee.
Speaker 2: The most significant in condition that Maxwell's attorneys put on
Speaker 2: her agreement to testify before Congress, was this grant a
Speaker 2: formal immunity that witness immunity comes in several forms, or
Speaker 2: something called transactional immunity, which is a blanket or a
Speaker 2: total immunity which completely protects a witness from future prosecution
Speaker 2: for crimes related to their testimony. Then there's something called
Speaker 2: use or derivative use community, which means that you can't
Speaker 2: use the witness's testimony or any evidence derived from that
Speaker 2: testimony against that witness, but does allow prosecutors to prosecute
Speaker 2: for evidence that is independently derived separate from the witness's testimony.
Speaker 2: But what's happening here was that her lawyers were asking
Speaker 2: Congress to grant this broad immunity in exchange for her testimony,
Speaker 2: and that's something that Congress was likely unwilling to do,
Speaker 2: and in fact, the Committee has already rejected that request, Bob.
Speaker 1: Another thing that's been going on is that the Justice
Speaker 1: Department has asked judges in Florida and Manhattan to unseal
Speaker 1: grand jury transcripts in both the Jeffrey Epstein and Galaine
Speaker 1: Maxwell cases. And we've talked before about how you're not
Speaker 1: going to learn much in those grand jury transcripts, And
Speaker 1: now we found out that the grand jury transcripts that
Speaker 1: the Justice Department is seeking only include testimony from two witnesses,
Speaker 1: both of them law enforcement officers. Law enforcement officers often testify,
Speaker 1: but what kind of information are you going to get
Speaker 1: from them?
Speaker 2: So there are essentially two ways of prosecutors use grand curies.
Speaker 2: One is as an investigative tool. The other is as
Speaker 2: a means for obtaining and a diet. Most of the time,
Speaker 2: prosecutors use the grand jury for that second purpose, simply
Speaker 2: to obtain an indictment, because under the constitution, prosecutors do
Speaker 2: not have the ability to bring charges directly against individuals.
Speaker 2: Only a federal grand jury can do that in federal
Speaker 2: criminal cases. So what prosecutors have to do when they're
Speaker 2: ready to present their case and ready to bring charges
Speaker 2: against an individual is bring a witness into the grand jury,
Speaker 2: generally a law enforcement officer, an FBI agent, a dasent,
Speaker 2: or some other representative of a federal agency, and that
Speaker 2: witness can effectively summarize the entire case and the evidence.
Speaker 2: And by doing that, they can summarize witness testimony, they
Speaker 2: can talk about documents they reviewed. But that is really
Speaker 2: a high level summary of the evidence, and it is
Speaker 2: just enough for prosecutors to obtain that indictment. It is
Speaker 2: by no means a complete recitation of all of the
Speaker 2: evidence the prosecutors have, and it is certainly not a
Speaker 2: complete recitation of all of the witness interviews that were
Speaker 2: done in connection with the investigation. So it really is
Speaker 2: a very targeted presentation in front of the grand jury.
Speaker 2: Sometimes witnesses are used in order to actually conduct an investigation,
Speaker 2: but it's unusual, and it's usually done in order to
Speaker 2: lock in witness testimony. If a prosecutor believes that there
Speaker 2: is an uncooperative witness that they don't want to be
Speaker 2: surprised what they're going to say at a trial, if
Speaker 2: they might testify the trial, they bring them into the
Speaker 2: grand jury. They let them testify, even if prosecutors believe
Speaker 2: that that testimony may be false, but it locks them in.
Speaker 2: So whatever their story is in front of the grand jury,
Speaker 2: they can't change it down the road at a trial.
Speaker 1: So a Florida judge has already rejected request for the
Speaker 1: grand jury transcripts of Epstein's proceedings down there, How likely
Speaker 1: is it that the New York judges will do the same.
Speaker 2: Well. For a judge to unseal grand jury testimony is
Speaker 2: really an usual Now it is less largely to the
Speaker 2: discretion of the judge, but a judge would have to
Speaker 2: find extraordinary circumstances, and the fact that there is a
Speaker 2: strong public desire to get more information about this case
Speaker 2: really is probably not enough for a judge to agree
Speaker 2: to release that grand jury testimony. And there's good reason
Speaker 2: for that, because lots of information and lots of testimony
Speaker 2: and lots of evidence that's presented in front of a
Speaker 2: grand jury may mention other individuals who ultimately are not charged.
Speaker 2: It may mention victims and other sensitive information. And the
Speaker 2: whole reason that testimony in front of a grand jury
Speaker 2: is protected by a federal rule known as dix E
Speaker 2: is because there is a decision that's made. An information
Speaker 2: that does not ultimately lead to an indictment so an
Speaker 2: individual has an opportunity to respond to those charges is
Speaker 2: not information that ought to be revealed to the public,
Speaker 2: because if it is revealed, those people whose names may
Speaker 2: be mentioned, who have come up in the course of
Speaker 2: an investigation really have no opportunity to clear their name
Speaker 2: since they'll never be a trial they'll never be a
Speaker 2: core proceeding, and it really is simply a guilt by
Speaker 2: association in some cases, which is what the grand jury
Speaker 2: is designed expressly to prevent.
Speaker 1: A lot of issues around these Epstein files. Thanks so much, Bob.
Speaker 1: That's former federal prosecutor Robert Mints of Macarter and English.
Speaker 1: In a set back to abortion opponents, a federal judge
Speaker 1: this week ruled that Planned Parenthood clinics nationwide must continue
Speaker 1: to be reimbursed for Medicaid funding. A provision in President
Speaker 1: Trump's signature tax legislation was written to prohibit Planned Parenthood
Speaker 1: from receiving any Medicaid funds even when abortions are not
Speaker 1: being provided. Massachusetts judge in Derah Talwani found that the
Speaker 1: provision likely violates the Constitution in three different ways. My
Speaker 1: guest is reproductive rights expert Mary Ziegler, a professor at
Speaker 1: UC Davis Law School. Mary, how would the medicaid cuts
Speaker 1: in Chump's tax bill affect Planned Parenthood?
Speaker 2: So?
Speaker 3: I think there are knowns and unknowns. We are pretty
Speaker 3: sure that it would take away about a third of
Speaker 3: Planned Parenthood's funding, and what that would translate into in
Speaker 3: terms of closures is a little bit more complicated and
Speaker 3: may not be evenly distributed across the universe of planed
Speaker 3: paranoid affiliates. It'll depend on a variety of things, like
Speaker 3: whether fundraising can cover some of those losses, whether Planned
Speaker 3: Parenthood can try to run out the cloth. Because at
Speaker 3: least at the moment, the Big Beautiful build that provision
Speaker 3: of it is set to expire in a year, just
Speaker 3: in time for the midterms. It could obviously be extended,
Speaker 3: but at the moment it hasn't been, so we do
Speaker 3: know it's going to have some pretty devastating effects on
Speaker 3: plan Parenthood. We've already seen some affiliates close, but exactly
Speaker 3: what beyond that, I think we still have to see.
Speaker 1: Planned Parenthood went to court and argued that the laws
Speaker 1: paw on medicaid reimbursements amount to a targeted exclusion that
Speaker 1: violates the Constitution. Tell us about their arguments.
Speaker 3: They argued first that the Big Beautiful Bill was actually
Speaker 3: punishing Planned Parenthood for its expression and its speech. So
Speaker 3: the argument was that the bill was penalizing affiliates not
Speaker 3: for performing abortions, but for associating with Planned Parenthood, an
Speaker 3: organization that advocates for reproductive rights, and the logic was
Speaker 3: Planned Parenthood can't get the money back, and affiliate couldn't
Speaker 3: get the money back by simply not providing abortions itself.
Speaker 3: It would have to disaffiliate from Planned Parenthood. There was
Speaker 3: a related argument under the equal protection cause, and then
Speaker 3: the final argument that this amounted to what's called a
Speaker 3: bill of attainder, which is when the legislature punishes someone
Speaker 3: for past conduct without a trial. So Planned Parenthood was
Speaker 3: arguing that this bill amounted to a punishment of Planned
Speaker 3: Parenthood for having done abortions in the past or advocated
Speaker 3: for abortions in the past. So those were the arguments
Speaker 3: that are really at the center.
Speaker 2: Of the case.
Speaker 1: And why did the judge fine for Planned Parenthood.
Speaker 3: Yeah, the judge agreed with Planned Parenthood on all three arguments,
Speaker 3: essentially in joining the big beautiful builds permanently on all
Speaker 3: three grounds. So this was, you know, at the moment,
Speaker 3: as big of a win as Planned Parenthood could have
Speaker 3: asked for.
Speaker 1: Was Planned Parenthood saying if the Medicaid reimbursements were stopped,
Speaker 1: they'd go out of business.
Speaker 3: There's varying estimates. I mean, I've heard that a significant
Speaker 3: number of affiliates would close. It's not really that Planned
Speaker 3: Parenthood altogether would go out of business, because, as the
Speaker 3: case makes clear, Planned Parenthood is not just a health
Speaker 3: care provider, it's also an advocacy grow and there's no
Speaker 3: reason to think that every single affiliate will go out
Speaker 3: of business as a result of the big, beautiful build.
Speaker 3: But Planned Parenthood does receive a significant portion of its
Speaker 3: funding from Medicaid, so we would expect to see a
Speaker 3: lot of clinic shutter. But how many, I think, we
Speaker 3: won't know unless you're until really the bill goes into
Speaker 3: affect it for long enough.
Speaker 1: The judges July twenty first Order preliminary Order has already
Speaker 1: appealed to the First Circuit. Do you think the First
Speaker 1: Circuit is likely to affirm this ruling?
Speaker 3: It's hard to say, right, I mean, the First Circuit
Speaker 3: is not known to be a particularly conservative circuit. But
Speaker 3: some of these arguments are more of a stretch than
Speaker 3: you might expect. So that unconstitutional conditions doctrine, which is
Speaker 3: part of what the judge relied on, right, is essentially
Speaker 3: not that Planned Parenthood has a right to Medicaid funding,
Speaker 3: but rather that if Planned Parenthood is eligible for Medicaid funding.
Speaker 3: You can't have that taken away because it exercised this
Speaker 3: constitutional right to associate. The problem there is that unconstitutional
Speaker 3: conditions doctrine is just a mess. Like most colors agree,
Speaker 3: it's convoluted. It doesn't make a lot of sense, which
Speaker 3: leaves a lot of room for judges to disagree about
Speaker 3: how to apply it. And the fight here is really
Speaker 3: about whether the bill was penalizing Planned Parenthood for providing
Speaker 3: abortions or whether it was penalizing Planned Parenthood affiliates for
Speaker 3: associating with an organization that advocated for abortions. And it's
Speaker 3: hard to predict which way the first circuit it is
Speaker 3: going to come down on that. Some of the tainder
Speaker 3: cases are kind of the same, so there's not a
Speaker 3: lot of law there. It's a little unpredictable.
Speaker 1: Just to be clear, Medicaid funds are not used for
Speaker 1: abortions at Planned Parenthood.
Speaker 3: So since the nineteen seventy six High Amendment, Planned Parenthood
Speaker 3: has been unable to use Medicaid dollars for abortions. This
Speaker 3: is just punalizing organizations that provide abortions by depriving them
Speaker 3: of Medicaid dollars. For other service.
Speaker 1: So some states have already cut Planned Parenthood's Medicaid funding,
Speaker 1: including Texas and Louisiana. And did the Supreme Court open
Speaker 1: the gate for more states to do that?
Speaker 2: Right? Exactly?
Speaker 3: Yeah, So in a case last June called Medina, the
Speaker 3: Supreme Court made it easier for conservative states to kick
Speaker 3: Planned Parenthood out of their own Medicaid program. So, just
Speaker 3: to be clear, Medicaid is a joint state federal program,
Speaker 3: so states have their own Medicaid reimbursement process, as does
Speaker 3: the federal government. So what states had been looking to
Speaker 3: do was to prevent Planned Parenthood from getting Medicaid reimbursement
Speaker 3: for non abortion services. It had been unclear until June
Speaker 3: about whether that was permissible, and the Supreme Court just
Speaker 3: clarified that it is. So one of the upshots of
Speaker 3: that is that, really, regardless of what happens with the
Speaker 3: big beautiful Bill, either in court or in Congress, right,
Speaker 3: because this thing is set to expire and we don't
Speaker 3: know if Republicans are going to renew it or let
Speaker 3: it expire because it would hurt them in the midterms.
Speaker 3: Regardless of what happens with that, we do expect to
Speaker 3: see more conservative states taking aim at planned parenthood when
Speaker 3: it comes to state a kate dollars.
Speaker 1: So let's turn out to this wrongful death lawsuit. A
Speaker 1: Texas man whose girlfriend used abortion pills to end her
Speaker 1: pregnancies is suing a California doctor who allegedly mailed her
Speaker 1: the medication. Tell us about this lawsuit.
Speaker 3: So this is another interesting lawsuit. It's being brought by
Speaker 3: Jonathan Mitchell, who is a famous anti abortion attorney who's
Speaker 3: probably best known as being the architect of Sbaight, the
Speaker 3: Texas Bounty Bill.
Speaker 2: But it was filed in federal.
Speaker 3: Court, which is interesting, and it argues that a California
Speaker 3: doctor mailed pills not only to a woman, but a
Speaker 3: woman and her kind of estranged ex husband who is
Speaker 3: pressuring her to have an abortion allegedly, and that happens
Speaker 3: and constituted a wrongful death. It's interesting for a number
Speaker 3: of reasons, because why was it a wrongful death if
Speaker 3: in fact it's not a crime in Texas for a
Speaker 3: woman to and her own pregnancy. The answer that the
Speaker 3: lawsuit offers is complicated, but partly that federal law makes
Speaker 3: it a crime allegedly to male abortion pills at all. Right,
Speaker 3: So this is an effort to turn the Comstock Act,
Speaker 3: this nineteenth century obscenity law, into an abortion man. It's
Speaker 3: a vehicle for that, and it's also I think a
Speaker 3: vehicle for abortion opponents who are impatient with some of
Speaker 3: the lawsuits we've already seen. So Texas, for example, has
Speaker 3: parted it a New York abortion doctor for violating Texas
Speaker 3: state laws. But that's been going quite slowly, right. The
Speaker 3: action hasn't moved to federal court there, and I think
Speaker 3: this is an effort to kind of start process in
Speaker 3: federal court and maybe expedise the resolution of some of
Speaker 3: these questions of otus, especially when it comes to the
Speaker 3: Comstock Act. But not only to that.
Speaker 1: Mary, We've talked before about the threat posed by the
Speaker 1: Comstock Act on the mailing of abortion pills. It hasn't
Speaker 1: been used. What in decades does it still stand? Are
Speaker 1: there any problems with the Comstock Act itself?
Speaker 3: Yeah, so it's complicated, right, I mean, the Comstock Act
Speaker 3: has been enforced in recent decades, but only really in
Speaker 3: kind of a rare handful of cases involving things like
Speaker 3: child pornography, So it hasn't been enforced in cases involving
Speaker 3: abortion much to speak of at all since the nineteen teens. So,
Speaker 3: you know, there are a number of problems with the argument.
Speaker 3: It's not clear that the Kombstock Act was intended to
Speaker 3: ban the mailing of all abortion related items. That doesn't
Speaker 3: seem to have been what courts thought in the nineteenth
Speaker 3: or early twentieth centuries. Then there's just whether it's constitutionally
Speaker 3: permissible to have a zombie law like this pick back
Speaker 3: in and criminalize a bunch of conduct that everybody thought
Speaker 3: was fine. Whether that raises due process or fairness concerns
Speaker 3: is something the courts would have to resolve too. But again,
Speaker 3: you know, it's not obvious that this case will we'll
Speaker 3: get all the way to the Supreme Court anyway. Jonathan
Speaker 3: Mitchell and other abortion opponents have been trying to find
Speaker 3: a vehicle to get the Comstock Act of the Supreme
Speaker 3: Court for several years now and yet without any success.
Speaker 2: Right So, whether this proves to.
Speaker 3: Be the magic blow, we'll.
Speaker 1: Just have to see. And so he's tried other lawsuits,
Speaker 1: these wrongful death kind of lawsuits over abortions in state court.
Speaker 1: Is this a new attempt to take it to federal court?
Speaker 3: Yeah, it's a new attempt to take it to federal court.
Speaker 3: It's also significant who the plaintiff is in this case.
Speaker 3: A previous wrongful death suit that mister Mitchell filed similarly
Speaker 3: a kind of man suing his partner. The man ended
Speaker 3: up having a pretty unsavory background. There were lots of
Speaker 3: text messages and other data indicating that he had been controlling,
Speaker 3: that he had done a lot of unflattering and worrisome
Speaker 3: things that kind of painted the lawsuit in a pretty
Speaker 3: damning light. So I think this is an attempt to
Speaker 3: go to federal court to get the comstock question addressed
Speaker 3: directly with a plaintiff who isn't as unappealing as the
Speaker 3: last plaintiff. Right, there's an attempt. I don't know if
Speaker 3: it will work. This is kind of an abersion coercion situation.
Speaker 3: The lawsuit alleges that the woman having these abortions was
Speaker 3: being pressured by her estranged husband and to some extent
Speaker 3: by his family, and that she would have preferred to
Speaker 3: carry these pregnancies to terms. The old lawsuit was very
Speaker 3: critical of the woman who had the abortion in her friends,
Speaker 3: so it was sort of, you know, it looked like
Speaker 3: men telling women what to do. This lawsuit is sort
Speaker 3: of presenting itself as men defending women against coercive men.
Speaker 3: Whether a judge sees it that way or whether the
Speaker 3: facts bear that narrative out remains to be seen.
Speaker 1: It seems like the facts are a little odd. She's
Speaker 1: still married to someone else. Does the boyfriend even have
Speaker 1: standing to sue?
Speaker 3: Right? I mean, genetically, there's an interesting question. I mean,
Speaker 3: I think obviously, you know, we're in an era now
Speaker 3: where biological fathers can have rights. You know, it's not
Speaker 3: just the sort of old knaws of marital fathers are
Speaker 3: the only people with rights in this situation. But to
Speaker 3: your point, they are interesting questions about whether the plaintiff
Speaker 3: is in fact a biological father. I'm not sure how
Speaker 3: that could have been determined.
Speaker 1: The facts here seemed to leave a lot of open questions.
Speaker 1: So why bring a suit that you want to gain
Speaker 1: attention with this fact pattern?
Speaker 3: I think the goal is to have a story about
Speaker 3: abortion coercion, But like you said, it's kind of complicated.
Speaker 3: A lot of things are unclear, right, like who who
Speaker 3: was the father of the fetuses or unborn children who
Speaker 3: are being aborted?
Speaker 2: Right?
Speaker 3: And how is that being determined? To what extent was
Speaker 3: their coercion or to what extent was this just a
Speaker 3: woman in a complicated romantic entanglement who wasn't sure what
Speaker 3: the right thing to do with It was hard to
Speaker 3: figure out what was exactly going on, even though this
Speaker 3: was just the plaintiff's version of events. So I imagine that
Speaker 3: if the plaintiff's version of events is this hard to understand,
Speaker 3: their reality is that much more complicated.
Speaker 1: You mentioned Czechis and Louisiana are pursuing legal actions against
Speaker 1: a New York doctor who prescribed abortion pills to patients
Speaker 1: in those states. New York has a shield law, so
Speaker 1: is it a question of which state's law to follow?
Speaker 1: Can one state tell another story what to do.
Speaker 3: Yeah, that's part of the complexity of both the Strongfold
Speaker 3: death suit and the Texas and previous Louisiana cases that
Speaker 3: we've spoken about before. So when one state is fighting
Speaker 3: another state, things get complicated under the full faith and
Speaker 3: credit clause and also choice of law. So the full
Speaker 3: faith and Credit claus is generally that when the courts
Speaker 3: of one state reach a final judgment, the courts of
Speaker 3: the other state have to honor that judgment. That's generally
Speaker 3: how things work, but it gets complicated because there's sometimes
Speaker 3: exceptions to that rule, and there can be complexities when
Speaker 3: they're multiple dueling judgments. You could have courts and different
Speaker 3: states reaching different outcomes, and then those courts have to
Speaker 3: decide which state's law even apply when they're resolving these questions.
Speaker 3: So far, the Texas and Louisiana suits haven't gone very
Speaker 3: far in resolving these questions. They haven't even asked federal
Speaker 3: courts to get involved. So I think part of what
Speaker 3: you're seeing in this case is Jonathan Mitchell trying to
Speaker 3: go directly to federal courts, even though a lot of
Speaker 3: what he's asking this federal court to weigh in on
Speaker 3: is state law questions, because a lot of his case
Speaker 3: is saying this is a wrongful death because of Texas
Speaker 3: state law. Even though there is this Comstock Act claim,
Speaker 3: a lot of the rest of why it's supposed to
Speaker 3: have been a wrongful death is based on Texas state law.
Speaker 3: So it's a little odd that of federal judges the
Speaker 3: first person being pasked with resolving those questions. But strategically
Speaker 3: I think it's again because mister Mitchell's interested in seeing
Speaker 3: federal judges weigh in on the Comstock Act and is
Speaker 3: probably frustrated that Texas and Louisiana haven't yet escalated their
Speaker 3: cases to federal court.
Speaker 1: So another abortion related decision, the Court of Appeals for
Speaker 1: the Fourth Circuit rule that West Virginia can block access
Speaker 1: to myth of pristone. Yeah.
Speaker 3: So, there had been a several lawsuits that had proceeded
Speaker 3: in the Biden years arguing that the FDA's rules permitting
Speaker 3: access to myth of pristone under certain circumstances preempted contradictory
Speaker 3: state laws criminalsing myth of pristone, including West Virginia's abortion ban.
Speaker 3: And the theory was that FDA rules that a uniform
Speaker 3: federal standard that's meant to govern nationwide and that state
Speaker 3: laws you know, which are trumped by federal law couldn't
Speaker 3: conflict with that. And the Fourth Circuit disagreed with that.
Speaker 3: It certainly doesn't permanently resolve the question. I mean, the
Speaker 3: plaintiffs in that case could appeal. There are other circuits
Speaker 3: that could resolve such a question, but it was one
Speaker 3: of the ways that works and rights supporters were hoping
Speaker 3: to use the FDA's current rules on mytha pristone to
Speaker 3: limit state bans, and that hasn't worked to date, and so.
Speaker 1: What could the state do to make it harder for
Speaker 1: women to get MYTHI pristone or since it's going through
Speaker 1: the mail, right, So.
Speaker 3: We're seeing a whole bunch of efforts to answer that question. Actually,
Speaker 3: as we speak, one of the most important is taking
Speaker 3: place in Texas. Texas had a kind of what you'd
Speaker 3: consider a model bill to target abortion pills. It is
Speaker 3: kind of a massive pill that touches on everything from
Speaker 3: the advertising of abortion providers, to internet servers that carry
Speaker 3: information about abortion, to abortion funds that help low income
Speaker 3: patients to address abortion, to creating a state law equivalent
Speaker 3: of the Comstock Act. This was sort of like an
Speaker 3: abortion pill megabill, right. And surprisingly, this legislation had been
Speaker 3: introduced during a regular legislative setition in Texas and it
Speaker 3: didn't pass. So the governor of Texas announced a special
Speaker 3: session and it's expected that the bill will be taken
Speaker 3: up again. Then again, it's unclear whether this bill will pass,
Speaker 3: but if it does, it could be a model for
Speaker 3: other states trying to take on abortion pills. The challenge,
Speaker 3: as you mentioned, is that ultimately these pills are coming
Speaker 3: from out of state, and without some kind of federal action,
Speaker 3: either from a federal court or from the Trump administration,
Speaker 3: and most likely from both, states are still going to
Speaker 3: be somewhat hindered in their ability to take on abortion pills.
Speaker 1: And what's been happening with the abortion trafficking bills in
Speaker 1: some states.
Speaker 3: There have been a bunch of developments. Idaho reached a
Speaker 3: settlement where it wouldn't prosecute people for referring for out
Speaker 3: of state abortions. There have been a number of challenges
Speaker 3: to those bills on the free speech side of things
Speaker 3: that have been kind of going either subtle or going
Speaker 3: the way of abortion providers. So that's another thing to watch,
Speaker 3: especially as this abortion pill megabill moves forward in Texas.
Speaker 3: There's an interesting question about whether that will raise free
Speaker 3: speech concerns that will eventually do this because we're seeing
Speaker 3: kind of warning signs both in these settlements and in
Speaker 3: litigation when it comes to free speech and access data
Speaker 3: state aborsion.
Speaker 1: It's hard to keep track of all the different abortion
Speaker 1: related issues going on across the country. Thanks so much,
Speaker 1: Mary Best. Professor Mary Ziegler of UC Davis Law School
Speaker 1: and that's it for this edition of The Bloomberg Law Show.
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