WEBVTT - Texas Woman Falsely Arrested for Murder Over Abortion 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:15.400 --> 0:00:19.520 Despite the protests, Oklahoma just made it a felony to 0:00:19.600 --> 0:00:23.439 perform an abortion. Governor Kevin Stitt signed the law, which 0:00:23.480 --> 0:00:26.760 now becomes the most restrictive abortion law in the country. 0:00:27.080 --> 0:00:30.800 We want Oklahoma to be the most pro life state 0:00:30.840 --> 0:00:34.960 in the country. We want to outlaw abortion in the 0:00:34.960 --> 0:00:38.200 state of Oklahoma. Oklahoma is just the latest of Republican 0:00:38.280 --> 0:00:42.240 led states across the country rushing to restrict abortion access. 0:00:42.520 --> 0:00:45.720 In anticipation of a rollback of abortion rights by the 0:00:45.760 --> 0:00:49.640 Supreme Court by this summer, and emboldened by the Justice's 0:00:49.640 --> 0:00:53.520 decision to allow Texas abortion restrictions to remain in place, 0:00:53.920 --> 0:00:57.640 Planned parenthoods Emily Well says, the courts are no longer 0:00:57.680 --> 0:01:00.640 a helpful option. In the past, we've been able to 0:01:00.680 --> 0:01:02.600 rely on the Court as a backstop to block some 0:01:02.640 --> 0:01:05.360 of the most egregious laws they've proposed. But we know 0:01:05.440 --> 0:01:08.440 that's not true anymore. Joining me is Mary Ziegler, an 0:01:08.440 --> 0:01:11.240 expert in the law of reproductive rights and a professor 0:01:11.280 --> 0:01:15.280 at the Florida State University College of Law. Mary, before 0:01:15.319 --> 0:01:19.200 we turned to the Oklahoma law, let's discuss this startling 0:01:19.240 --> 0:01:22.400 case in Texas where a twenty six year old woman 0:01:22.680 --> 0:01:27.240 was arrested on murder charges for allegedly quote, causing the 0:01:27.280 --> 0:01:31.120 death of an individual by a self induced abortion. The 0:01:31.160 --> 0:01:34.280 Star County district attorney got a grand jury to sign 0:01:34.319 --> 0:01:37.720 off on a murder indictment on March thirty, but this 0:01:37.800 --> 0:01:40.920 week the district attorney admitted the woman had not committed 0:01:40.920 --> 0:01:43.800 a crime and dropped the charges. Do you have any 0:01:43.880 --> 0:01:47.080 understanding of why he charged her in the first place. 0:01:47.760 --> 0:01:51.560 It's hard to say. I mean, there's no legal explanation, obviously, 0:01:51.640 --> 0:01:54.800 because it's worth emphasizing that it's not just the case 0:01:54.840 --> 0:01:58.120 that there was no statute that authorized this prosecution. Texas 0:01:58.120 --> 0:02:01.320 homicide law actually explode that Lee spells out that you 0:02:01.400 --> 0:02:04.200 cannot punish women for having abortions. So this was a 0:02:04.240 --> 0:02:07.320 case where this was expressly prohibited by law, not just 0:02:07.400 --> 0:02:09.800 that there was still a way this was authorized. It 0:02:09.840 --> 0:02:12.760 was expressly prohibited. I think the best way you can 0:02:12.840 --> 0:02:15.000 understand it is as part of a kind of general 0:02:15.040 --> 0:02:18.959 fragmentation of authority in the anti abortion movement and a 0:02:19.080 --> 0:02:22.160 kind of shift away from healing limited by what the 0:02:22.240 --> 0:02:25.079 law is now, because I mean, historically the anti abortion 0:02:25.200 --> 0:02:28.160 movement would have had to work within the confines of 0:02:28.240 --> 0:02:30.520 Roe v. Wade and would wait until the Supreme Court 0:02:30.639 --> 0:02:34.200 said that it was changing the rules before adjusting. And now, 0:02:34.240 --> 0:02:36.920 of course, we live in a world where legislators routinely 0:02:37.000 --> 0:02:39.720 passed laws they know are unconstitutional. Now because they no 0:02:39.760 --> 0:02:41.760 longer care about what the laws now, they care about 0:02:41.760 --> 0:02:44.040 what they expect the Supreme Court will do soon. And 0:02:44.080 --> 0:02:46.320 the only way I can understand what happened in Texas 0:02:46.360 --> 0:02:48.400 is that's it's sort of part of the same phenomenon 0:02:48.520 --> 0:02:50.880 right where prosecutors are saying, you know, we're going to 0:02:51.240 --> 0:02:53.520 act as if the law is the way we wanted 0:02:53.560 --> 0:02:55.480 to be, or act as if we can predict what 0:02:55.560 --> 0:02:59.079 the law will be soon, rather than actually paying attention 0:02:59.120 --> 0:03:01.840 to the rule of law that currently stands. And obviously 0:03:01.880 --> 0:03:04.280 that can lead us to some pretty disturbing places. The 0:03:04.320 --> 0:03:07.880 district attorney admitted she hadn't committed a crime. Only after 0:03:07.919 --> 0:03:11.720 the case got national attention. She spent three days in jail. 0:03:12.120 --> 0:03:16.880 Her name and mug shot have been published across media nationwide. 0:03:17.280 --> 0:03:20.440 Is this a case for a malicious prosecution lawsuit? I 0:03:20.440 --> 0:03:23.280 think there's definitely an argument for that. Yeah, because It's 0:03:23.320 --> 0:03:27.720 really hard to see what basis there was for this. 0:03:27.960 --> 0:03:30.959 So there's no good faith argument that you can prosecute 0:03:30.960 --> 0:03:34.079 a woman in Texas for inducing her own divortion at all, 0:03:34.440 --> 0:03:38.520 much less for murder. And I'm not a Texas expert particularly, 0:03:38.560 --> 0:03:40.280 but I mean, all you need to do is read 0:03:40.320 --> 0:03:42.920 texas As homicide Statute to know the answer to this. 0:03:43.200 --> 0:03:45.880 So it would not be a bad idea to establish 0:03:45.920 --> 0:03:48.440 that this was a malicious prosecution so that people don't 0:03:48.520 --> 0:03:53.000 follow the same path. Also very odd is that it 0:03:53.080 --> 0:03:56.960 was the hospital staff that turned her into police. Is 0:03:56.960 --> 0:04:00.320 there any kind of duty to report in Texas? Perhaps 0:04:00.360 --> 0:04:02.960 with the new law, how could you have a duty 0:04:03.000 --> 0:04:06.320 to report someone for doing something legal If what she's 0:04:06.360 --> 0:04:09.440 doing isn't a crime. Any law that does exist about 0:04:09.440 --> 0:04:12.440 mandatory reporting of a crime wouldn't apply anyway. So the 0:04:12.760 --> 0:04:16.120 hospital staff, just like the prosecutor and the sheriff, were 0:04:16.320 --> 0:04:18.440 you know, acting on their own sense of what the 0:04:18.520 --> 0:04:21.200 law should be and not acting based on the law 0:04:21.480 --> 0:04:24.760 as it's written. There are concerns that this could stop 0:04:24.800 --> 0:04:30.040 women from going to the hospital in emergency situations. Yeah, absolutely, 0:04:30.080 --> 0:04:32.440 And I mean I think that that's probably the lasting 0:04:32.520 --> 0:04:35.600 legacy of this that people will be afraid of seeking 0:04:35.839 --> 0:04:39.360 treatment when they need it, even if ultimately charges are 0:04:39.400 --> 0:04:42.200 dismissed as they were in this case. People don't want 0:04:42.240 --> 0:04:44.279 to have to spend some time in prison and have 0:04:44.400 --> 0:04:46.680 to get together the money for bail and all of 0:04:46.720 --> 0:04:49.719 that after having had an abortion, or it's worth seeing 0:04:49.760 --> 0:04:52.360 a miscarriage, because it's not going to be easy for 0:04:52.480 --> 0:04:56.520 people in hospitals to distinguish whether someone has taken an 0:04:56.560 --> 0:05:00.520 abortion pill or had a miscarriage. Is there anything left 0:05:00.560 --> 0:05:05.160 to challenge, any avenue left to challenge the Texas Abortion 0:05:05.240 --> 0:05:08.040 Law SP eight? Not really? I mean, so the Texas 0:05:08.080 --> 0:05:12.320 Supreme Court just shut the door on the last remaining possibility, 0:05:12.360 --> 0:05:15.599 which had been a suit against state licensing officials. The 0:05:15.640 --> 0:05:18.760 only exception is people who are sued under sp E 0:05:18.920 --> 0:05:22.960 can raise constitutional arguments each time they're sued. But that's 0:05:22.960 --> 0:05:26.440 not really a satisfying alternative, because, of course then there's 0:05:26.480 --> 0:05:29.160 no moment in which those people would really be free 0:05:29.160 --> 0:05:30.880 to go about their business, right they would have to 0:05:30.960 --> 0:05:34.400 keep defending against lawsuit after lawsuit, raising the same constitutional 0:05:34.440 --> 0:05:37.560 argument over and over again. Is the new Oklahoma law 0:05:37.600 --> 0:05:40.880 even tougher than the Texas law which we once said 0:05:40.960 --> 0:05:43.760 was the most restrictive in the country. It is, though 0:05:43.800 --> 0:05:47.719 I mean it's different obviously, because the bounty hunting provisions 0:05:47.760 --> 0:05:51.599 are about money. They use the prospect of huge legal 0:05:51.640 --> 0:05:56.240 penalties financial penalties to discourage people from providing abortions. Oklahoma's 0:05:56.279 --> 0:05:59.800 law just simply criminalizes the provision of abortion, and so 0:06:00.400 --> 0:06:02.400 in some ways, I think you could say it's a 0:06:02.400 --> 0:06:06.880 near total ban. It bans more abortions earlier in pregnancy 0:06:06.920 --> 0:06:10.640 than the Texas bill. It has only an exception for 0:06:10.760 --> 0:06:13.839 abortions performed to save the life of the pregnant person. 0:06:14.120 --> 0:06:16.440 It makes performing an abortion of felony, and you can 0:06:16.480 --> 0:06:19.240 be punished by up to ten years in prison. And 0:06:19.320 --> 0:06:22.039 so I think sp A, as out there as it 0:06:22.120 --> 0:06:25.599 may seem, is just the beginning. We're much more likely 0:06:25.640 --> 0:06:28.960 to see bills like the Oklahoma law going forwards if 0:06:28.960 --> 0:06:32.600 the Supreme Court does actually reverse review AID. These laws 0:06:32.760 --> 0:06:36.880 don't provide exceptions for rape or incest. Even no, they 0:06:36.920 --> 0:06:41.680 don't provide exceptions for rape and incest in almost all circumstances. Historically, 0:06:41.920 --> 0:06:45.480 people in the anti abortion movement has never supported an 0:06:45.480 --> 0:06:48.320 exception for rape and incest. It's always been sort of 0:06:48.360 --> 0:06:50.880 like a necessity. I would say political necessity in the 0:06:50.920 --> 0:06:53.760 sense that they thought it would be politically stupid to 0:06:53.839 --> 0:06:56.919 say that they didn't want to have an exception for 0:06:57.040 --> 0:07:00.120 rape and incest. But in practical terms, they understood that 0:07:00.200 --> 0:07:02.839 we needed to say as much. But rave and insist 0:07:02.880 --> 0:07:05.520 exceptions contradict the idea of fetal personhood, which is of 0:07:05.520 --> 0:07:07.680 course the core tenant of the anti a worship movement, 0:07:07.720 --> 0:07:10.440 because if if you have a rights holding person, you're 0:07:10.480 --> 0:07:12.920 not allowed to kill that person because they were conceived, 0:07:13.120 --> 0:07:15.360 you know, and rape were incest, which is why they 0:07:15.480 --> 0:07:18.320 can justify this life of the pregnant person example. So 0:07:18.360 --> 0:07:20.400 I think what we're seeing now is that states are 0:07:20.440 --> 0:07:23.400 feeling either that in their own states things are so 0:07:23.480 --> 0:07:26.520 polarized that voters will accept the elimination of raper incest 0:07:26.560 --> 0:07:29.640 exceptions or anyway that there won't be any political consequences 0:07:29.800 --> 0:07:32.960 because voters wouldn't select a Democrat even if they don't 0:07:32.960 --> 0:07:35.800 like their state's subborshion policy. And you're seeing that states 0:07:35.800 --> 0:07:37.760 are so confident that the Supreme Court is going to 0:07:37.840 --> 0:07:40.400 do whatever they want that they don't have to kind 0:07:40.400 --> 0:07:45.400 of silence unpopular positions to avoid offending the justices because 0:07:45.440 --> 0:07:47.840 They think essentially that they've got this in the bag 0:07:47.880 --> 0:07:49.720 and Rob, We're just going to go no matter what 0:07:49.760 --> 0:07:52.640 they do. It seems surprising the states are not even 0:07:52.680 --> 0:07:55.520 waiting to hear what the Supreme Court is going to 0:07:55.640 --> 0:08:01.760 say by June or July at the latest about yep, yeah, 0:08:01.800 --> 0:08:03.840 I mean, this is what happens. I think when you 0:08:03.920 --> 0:08:07.280 have a court that's viewed as partisan, it does harm 0:08:07.360 --> 0:08:11.000 to the rule of law because people in legislatures don't 0:08:11.080 --> 0:08:14.480 treat the Court as judges. They treat them as partisans, 0:08:14.520 --> 0:08:18.120 and they base their own decisions as legislators on predictions 0:08:18.200 --> 0:08:20.920 about what they think of partisan court would do rather 0:08:21.000 --> 0:08:23.440 than on the precedence the court has actually laid out. 0:08:23.680 --> 0:08:26.480 And so the more people view the court as partisans, 0:08:26.480 --> 0:08:29.480 the more this kind of you know, damage will spread, 0:08:29.560 --> 0:08:33.000 and the more it may affect many people's perceptions of 0:08:33.040 --> 0:08:37.000 the court and its legitimacy. What happens if, as expected, 0:08:37.040 --> 0:08:42.000 the Supreme Court weekends or even overturns Row, Well, we 0:08:42.080 --> 0:08:44.680 see more of these laws or are they already on 0:08:44.720 --> 0:08:47.800 the books? There are some on the books. So there 0:08:47.840 --> 0:08:50.920 are a number of states that have pre row bands 0:08:50.960 --> 0:08:54.600 close to ten that simply have sort of sat there 0:08:54.640 --> 0:08:57.160 not being in effect, but that might be kind of 0:08:57.160 --> 0:09:00.560 revived like zombies should Roll be overturned. A number of 0:09:00.559 --> 0:09:03.360 other states have passed so called trigger laws more recently 0:09:03.400 --> 0:09:07.319 that would essentially go into effect were oviewed to be overturned, 0:09:07.520 --> 0:09:10.160 and so close to half the states would likely have 0:09:10.400 --> 0:09:14.040 something like a band coming into effect quite quickly after 0:09:14.120 --> 0:09:16.640 Rows overturned. Of course, there'll be lots of legal skirmishing 0:09:16.679 --> 0:09:19.720 about that. There'll be state constitutional challenges to some of 0:09:19.720 --> 0:09:23.400 these bills. They'll be debates about what exactly is needed 0:09:23.440 --> 0:09:26.160 to trigger the trigger laws, but that is what we 0:09:26.240 --> 0:09:29.640 are expecting going forward. Is it better if the Supreme 0:09:29.679 --> 0:09:34.720 Court just overturns ROW instead of cutting it back bit 0:09:34.840 --> 0:09:38.880 by bit and pretending that it's still viable. I think 0:09:39.000 --> 0:09:42.800 yes and no. I mean I think historically abortion rights 0:09:42.840 --> 0:09:46.200 supporters would have wanted a clearer overruling of ROW, because 0:09:46.240 --> 0:09:49.880 that would at least give people the opportunity to organize 0:09:49.920 --> 0:09:53.440 politically who support abortion rights to counter that. I think 0:09:54.040 --> 0:09:57.480 the concern is that, you know, the world we live 0:09:57.480 --> 0:09:59.719 in is so polarized now that the reversal of ROW 0:09:59.800 --> 0:10:02.360 might not results in the kind of backlash we would 0:10:02.360 --> 0:10:05.600 have anticipated. Ten or fifteen years ago, because the question, 0:10:05.640 --> 0:10:08.360 I think is not just whether the court's legitimacy you 0:10:08.360 --> 0:10:10.680 would be damaged by the reversal, but whether that damage 0:10:10.720 --> 0:10:14.240 would translate into anything politically that the Court would care about. 0:10:14.480 --> 0:10:18.760 And I think that's much harder to predict. So don't 0:10:18.800 --> 0:10:20.520 I don't know if you're a supporter of a worship 0:10:20.559 --> 0:10:23.360 rates whether you'd be happier with a decision reversing Row 0:10:23.440 --> 0:10:26.720 outright or something that's more muddied, simply because I think 0:10:26.840 --> 0:10:29.920 predicting what kind of backlash will see is so challenging. 0:10:30.880 --> 0:10:35.560 Is the next step for anti abortion forces trying to 0:10:35.600 --> 0:10:41.000 prohibit the use, sale, or prescription of contraceptives potentially? I 0:10:41.000 --> 0:10:43.000 mean one of the ways that that might happen is 0:10:43.040 --> 0:10:46.480 that there's always been a disagreement within the anti abortion movement, 0:10:46.520 --> 0:10:49.360 and really I think the country large about the line 0:10:49.440 --> 0:10:53.360 between aborshition and contraception. Many may remember during fights about 0:10:53.360 --> 0:10:57.760 the contraceptive mandate of Obamacare that conservatives were complaining about 0:10:58.040 --> 0:11:01.120 having to subsidize what they've viewed as a porson inducing drugs, 0:11:01.280 --> 0:11:04.319 and those included things like emergency contraceptives and i U 0:11:04.400 --> 0:11:06.600 d s and so in a world where states can 0:11:06.600 --> 0:11:08.839 ban abortion, there's going to be a real fight about 0:11:08.880 --> 0:11:11.680 what abortion actually is and whether it includes some things 0:11:11.720 --> 0:11:14.480 many people view as contraceptives, and that, of course, could 0:11:14.559 --> 0:11:17.040 lead to a more direct challenge to the idea that 0:11:17.080 --> 0:11:19.600 there is a right to use contraception in the first place. 0:11:20.040 --> 0:11:24.600 In the future, could you envision the Supreme Court prohibiting 0:11:24.840 --> 0:11:30.319 even democratic led states from allowing abortions? Yes, it's possible. 0:11:30.360 --> 0:11:32.840 I mean so. Anti abortion lawyers are already asking the 0:11:32.880 --> 0:11:36.520 Court to recognize the personhood of the fetus, which would 0:11:36.840 --> 0:11:40.520 mean abortion would violate the Due process and Equal Protection clause. 0:11:40.520 --> 0:11:43.560 That would be unconstitutional everywhere. I don't expect the Court 0:11:43.640 --> 0:11:46.080 necessarily to announce it or ruling like that this year, 0:11:46.320 --> 0:11:48.360 but I think it's quite likely that we'll see an 0:11:48.360 --> 0:11:50.800 effort to get the Court to do so in the 0:11:50.840 --> 0:11:53.240 near future. And whether that taste off, I think is 0:11:53.280 --> 0:11:55.440 something will have to wait several years to find out, 0:11:55.480 --> 0:11:58.440 but that strategy will definitely be put before the court. 0:11:58.880 --> 0:12:02.880 Maryland is joining fortune other states in allowing trained medical 0:12:02.920 --> 0:12:07.640 professionals other than physicians to perform abortions. That was over 0:12:07.679 --> 0:12:10.880 the veto of the governor. Are we seeing some states 0:12:11.120 --> 0:12:14.440 trying to shore up the right to an abortion. Yeah, 0:12:14.559 --> 0:12:18.520 we're seeing both states that are kind of codifying protections 0:12:18.600 --> 0:12:21.360 for abortion, as well as states that are trying to 0:12:21.360 --> 0:12:24.920 take more concrete steps to expand access, so for example, 0:12:25.200 --> 0:12:29.040 allowing people who are not licensed physicians, like you know, 0:12:29.120 --> 0:12:33.960 physician extenders or nurse practitioners to perform abortions. Some states 0:12:34.000 --> 0:12:38.640 are considering becoming so called sanctuaries and helping to fund 0:12:38.960 --> 0:12:43.840 travel and services for people traveling from states where abortion 0:12:44.000 --> 0:12:46.880 is illegal. So I think that's something that we would 0:12:46.880 --> 0:12:50.360 expect to see. Thanks so much, Mary. That's Mary Ziegler, 0:12:50.440 --> 0:12:53.400 a professor at the Florida State University College of Law. 0:12:55.200 --> 0:12:58.640 For the first time, Chief Justice John Roberts joined the 0:12:58.640 --> 0:13:03.000 court's liberal wing in blasting the conservative majority's handling of 0:13:03.040 --> 0:13:07.280 the stream of emergency request called the Shadow Docket. The 0:13:07.320 --> 0:13:11.360 Court temporarily reinstated a Clean Water Act rule issued by 0:13:11.400 --> 0:13:15.640 the Trump administration that scale back federal protections for streams, 0:13:15.679 --> 0:13:19.080 wet lands, and other bodies of water. Joining these environmental 0:13:19.160 --> 0:13:22.840 law professor Pat Parento of the Vermont Law School, what 0:13:23.000 --> 0:13:26.199 was your reaction to this order? Pat? What's really striking 0:13:26.360 --> 0:13:29.040 is why does environmental law seem to be in the 0:13:29.040 --> 0:13:31.199 center of their bulls eye. This is the third time 0:13:31.280 --> 0:13:34.360 now within what the last eight months there and certainly 0:13:34.440 --> 0:13:38.400 was in the last year, two questionable grants of cert 0:13:38.640 --> 0:13:42.679 in the West Virginia case involving greenhouse gas emissions from 0:13:42.720 --> 0:13:45.480 power plants, and then the sack A case involving the 0:13:45.520 --> 0:13:51.560 Clean Water Act, and now this crazy unjustified stay. I've 0:13:51.640 --> 0:13:54.840 got another Clean Water Act rules. So three times the 0:13:54.920 --> 0:13:59.520 court has issued very very questionable decisions or orders really 0:13:59.559 --> 0:14:02.360 not to say orders, and they seem to be wanting 0:14:02.360 --> 0:14:06.520 to change administrative law using environmental law. That seems to 0:14:06.520 --> 0:14:09.079 be part of what the agenda is, if there is one. 0:14:09.280 --> 0:14:13.319 This is about the administrative state, yes, and the environmental 0:14:13.559 --> 0:14:16.520 rules that they're all up because of course we had 0:14:16.559 --> 0:14:20.360 the Trump rules that had to be replaced. So those 0:14:20.400 --> 0:14:24.000 are targets of opportunity for a court intent on rolling 0:14:24.000 --> 0:14:26.880 back agency power. Tell us what the rule is here, 0:14:27.200 --> 0:14:31.280 what happened? So this is a rule that deals with 0:14:31.320 --> 0:14:35.040 what are called water quality certifications. It's Section four oh 0:14:35.040 --> 0:14:38.240 one of the Clean Water Act, and in it, Congress 0:14:38.400 --> 0:14:43.400 basically wanted to preserve the authority of states to protect 0:14:43.800 --> 0:14:48.400 their water quality when federal agencies issue licenses like FIR, 0:14:48.560 --> 0:14:53.040 the Federal Energy Regulatory Commission for hydroelectric dams and gas 0:14:53.040 --> 0:14:57.360 pipelines and infrastructure like that, and also other forms of 0:14:57.440 --> 0:15:03.200 federal permits, specifically Core of Engineer Section four oh four permits, 0:15:03.240 --> 0:15:06.080 which are for everything under the sun, not just pipelines 0:15:06.120 --> 0:15:09.960 and transmission lines and highways, but every kind of development 0:15:09.960 --> 0:15:13.280 that it involves discharge of dread or film material into 0:15:13.320 --> 0:15:17.600 wetlands and other streams. So incredibly broad scope of authority 0:15:17.720 --> 0:15:22.160 and necessary because otherwise the states are preempted by federal 0:15:22.200 --> 0:15:25.600 law and don't have control over these projects that are 0:15:25.640 --> 0:15:29.640 licensed by the federal government. So for fifty years we've 0:15:29.720 --> 0:15:34.880 we've had a regime in place where the states were 0:15:34.960 --> 0:15:39.720 exercising this authority, and it has been twice upheld by 0:15:39.760 --> 0:15:42.880 the U. S. Supreme Court, once in an opinion by 0:15:43.040 --> 0:15:47.480 Justice Santa Day O'Connor and what's called the PUD Number one, 0:15:47.720 --> 0:15:50.880 a case in which she wrote that this is a 0:15:50.920 --> 0:15:55.080 critical authority that states have to protect not just sort 0:15:55.120 --> 0:15:59.880 of water quality from chemical pollution, but also the equot 0:16:00.400 --> 0:16:04.440 integrity if you will, up streams, including fisheries, habitat. The 0:16:04.480 --> 0:16:08.160 case involves salmon habitat in Washington State. Right, And then 0:16:08.200 --> 0:16:10.200 in a later case, just the suitor wrote for an 0:16:10.240 --> 0:16:13.520 unanimous Supreme Court that this authority was broad enough that 0:16:13.600 --> 0:16:17.920 it applied even where there wasn't a direct discharge from 0:16:17.920 --> 0:16:21.000 a point source, which is the typical way that the 0:16:21.040 --> 0:16:23.640 Clean Water Act regulates. It was even broader than that. 0:16:23.920 --> 0:16:27.080 So that's what's that issue here is state's rights. States 0:16:27.120 --> 0:16:30.960 power to protect their water quality from projects that are 0:16:30.960 --> 0:16:34.520 licensed by the federal government. The court issued this order 0:16:34.600 --> 0:16:38.160 and it's supposed to be on a showing of irreparable harm. 0:16:38.320 --> 0:16:41.480 What's happening now? What kind of harm are these you know, 0:16:41.520 --> 0:16:46.000 are these states talking about? Well, they can't point to 0:16:46.160 --> 0:16:54.760 any specific instance where the reinstatement of the pre Trump rule. 0:16:54.880 --> 0:16:58.680 That's what's that issue here again is Trump came along 0:16:58.960 --> 0:17:02.360 like he did with so many any other rules, and 0:17:02.600 --> 0:17:06.879 completely changed the interpretation of the Clean Water Act to 0:17:07.000 --> 0:17:12.040 say a number of things, including that states authority was 0:17:12.119 --> 0:17:14.959 both limited in time that they had to act faster 0:17:15.320 --> 0:17:18.359 than they traditionally have been acting, and also limited in 0:17:18.440 --> 0:17:21.280 scope that they couldn't do as much as states wanted 0:17:21.320 --> 0:17:25.080 to to not only protect water resources but also control 0:17:25.160 --> 0:17:29.040 fossil fuel infrastructure. That's the real crux of the controversy here. 0:17:29.200 --> 0:17:32.800 The people that are opposed to what the Biden administration 0:17:32.880 --> 0:17:36.760 is doing are people including Red states and Red state 0:17:36.800 --> 0:17:41.080 attorneys general, who are in favor of more fossil fuel development, 0:17:41.119 --> 0:17:44.479 including gas pipelines, and they don't like the fact that 0:17:44.560 --> 0:17:48.919 Biden is now going to return to a rule that 0:17:48.920 --> 0:17:52.560 would allow states to use a broad array of reasons 0:17:52.600 --> 0:17:55.840 to either object to these projects or at least condition 0:17:55.960 --> 0:18:00.800 them to mitigate them. So the point here is the 0:18:00.840 --> 0:18:04.640 Biden administration has not yet adopted a new rule. They've 0:18:04.680 --> 0:18:08.359 gone back to the pre Trump rule, and there is 0:18:08.400 --> 0:18:11.879 no evidence that any project has been stopped as a 0:18:11.920 --> 0:18:14.440 result of what the Biden administration has done. That's why 0:18:14.520 --> 0:18:17.400 Kagan wrote her dissent. She said, there's no harm here 0:18:17.560 --> 0:18:22.199 to justify this extraordinary use of an emergency power to 0:18:22.359 --> 0:18:26.560 stay something that's poses an immediate, irreparable threat. There isn't 0:18:26.600 --> 0:18:29.439 any nor is there any reason to not wait for 0:18:29.480 --> 0:18:32.480 the Ninth Circuit to issue its decision. This issue is 0:18:32.480 --> 0:18:35.359 on appeal before the Ninth Circuit. There's an oral argument 0:18:35.440 --> 0:18:39.040 schedule for next month, so you know, the Supreme Court 0:18:39.040 --> 0:18:41.800 could simply wait, as it usually does, for the Ninth 0:18:41.800 --> 0:18:44.920 Circuit to rule. Who knows the Ninth Circuit might overturn 0:18:45.040 --> 0:18:47.719 the lower court's decision, which is the one the Supreme 0:18:47.760 --> 0:18:50.720 Court has stayed. Right, So the Supreme Court isn't even 0:18:50.760 --> 0:18:53.200 willing to wait for the Ninth Circuit to take an action, 0:18:53.480 --> 0:18:55.919 and there's no harm in the meantime from waiting. But 0:18:56.000 --> 0:18:58.479 that's where we are with the Supreme Court. The Supreme 0:18:58.560 --> 0:19:02.080 Court issuing this day. It's not really going to stay 0:19:02.160 --> 0:19:04.480 anything that's happening. It's not going to be you know, 0:19:04.920 --> 0:19:09.280 adverse to environmental interests. Well, it reinstates the Trump rules. 0:19:09.400 --> 0:19:11.679 That's the effect of it. Because what happened was the 0:19:11.720 --> 0:19:15.119 lower court Judge Alsa in the Northern District of California 0:19:15.440 --> 0:19:17.840 is the district court judge who issued the order of 0:19:17.920 --> 0:19:20.760 vacating the Trump Rules. So the effect of what the 0:19:20.800 --> 0:19:24.600 Supreme Court has done is to stay Judge Alsup's order, 0:19:25.040 --> 0:19:28.800 which has the effect of reinstating the Trump Rule. So 0:19:29.400 --> 0:19:33.360 Judge Alsap in his analysis said, if you leave the 0:19:33.359 --> 0:19:36.919 Trump Rule in effect, based on the evidence before me 0:19:37.119 --> 0:19:40.280 that's in the administrative record, I conclude there will be 0:19:40.520 --> 0:19:43.679 environmental harm from leaving this rule in place for the 0:19:43.720 --> 0:19:46.119 time it's going to take to replace it with the 0:19:46.160 --> 0:19:50.680 new rule. Secondly, he said, I conclude there is no 0:19:51.320 --> 0:19:56.280 significant disruption. That's one of the criteria judges have to 0:19:56.359 --> 0:19:59.680 evaluate in deciding whether to vacate a rule. Will the 0:19:59.760 --> 0:20:04.240 vague cation of the rule caused significant disruption? He concluded 0:20:04.400 --> 0:20:08.200 based on the record, No, there won't be significant disruption, 0:20:08.280 --> 0:20:11.840 but there will be significant environmental harm if you leave 0:20:11.880 --> 0:20:14.680 this rule on the books. And finally, he said, there 0:20:14.720 --> 0:20:19.240 are very serious questions about the legality of the Trump rule, 0:20:19.520 --> 0:20:23.080 such that it's very unlikely that when the new rule 0:20:23.160 --> 0:20:26.280 comes out it will look anything like the Trump rule. 0:20:26.359 --> 0:20:28.520 It's gonna be very different. It may not be what 0:20:28.720 --> 0:20:31.760 existed before, but it's going to be very different from 0:20:31.760 --> 0:20:35.480 the Trump rule. So that's the kind of very careful 0:20:35.520 --> 0:20:39.879 analysis that the lower courts have to go through before 0:20:39.920 --> 0:20:45.040 they decide whether a rule should be vacated pending a 0:20:45.160 --> 0:20:47.720 new rule. And that's what he did, and the Ninth 0:20:47.720 --> 0:20:50.439 Circuit is, of course, is reviewing all of that. Maybe 0:20:50.440 --> 0:20:53.560 they will agree with him, maybe they won't, maybe they'll 0:20:53.560 --> 0:20:56.120 send it back to him. We don't know. Neither does 0:20:56.160 --> 0:20:58.760 the Supreme Court. But in the meantime, the Court has 0:20:58.800 --> 0:21:03.200 issued to stay. So now the states lack the authority 0:21:03.280 --> 0:21:07.280 they've traditionally had, as they say, for decades, they now 0:21:07.400 --> 0:21:12.320 lack the authority to protect their water resources from federally 0:21:12.359 --> 0:21:17.240 authorized projects. Let's talk about the shadow docket, because Justice 0:21:17.280 --> 0:21:20.359 Atlanta Kagan, who has been a critic of the shadow docket, 0:21:20.520 --> 0:21:24.640 said it renders the Court's emergency docket, not for emergencies 0:21:24.680 --> 0:21:28.720 at all, just another place for merits determinations, except without 0:21:28.800 --> 0:21:32.080 full briefing and argument. Do you agree with her that 0:21:32.160 --> 0:21:37.520 the Court is using the shadow docket too much? Oh? Yes, 0:21:38.040 --> 0:21:43.800 I mean this is not responsible judicial sort of impartial, 0:21:44.359 --> 0:21:50.560 non activist, objective and restrained judicial conduct at all. And 0:21:50.600 --> 0:21:53.320 by the way, you know, Chief Justice Roberts sided with 0:21:53.440 --> 0:21:56.920 Keagan on this. So once again the effect of Trump's 0:21:57.040 --> 0:22:00.919 appointees to the Court becomes huge here because if it 0:22:00.960 --> 0:22:04.080 weren't for for that, Roberts might well be the swing 0:22:04.200 --> 0:22:06.880 vote in these kinds of situations. But now his vote 0:22:06.920 --> 0:22:10.199 is irrelevant because there are five solid conservative votes to 0:22:10.200 --> 0:22:13.000 do what they want, and apparently what they want is 0:22:13.040 --> 0:22:15.520 to continually look for and then of course they're clerks, 0:22:15.560 --> 0:22:17.680 are the ones that are looking for them. But look 0:22:17.800 --> 0:22:20.919 through these petitions to the Court and they seem to 0:22:20.920 --> 0:22:25.359 be singling out environmental petitions coming from red states. The 0:22:25.400 --> 0:22:30.800 opposition here is is clearly partisant. There's no blue democratic 0:22:30.880 --> 0:22:34.000 state at all that's opposed to what the Biden administration 0:22:34.040 --> 0:22:36.840 is doing. In fact, they're pleading with the Biden administration 0:22:37.040 --> 0:22:40.800 to move forward more quickly with the rulemaking and get 0:22:40.840 --> 0:22:43.600 it back to what it was before. Right. So this 0:22:43.640 --> 0:22:48.159 is straight partisan politics manifested through the Court using this 0:22:48.320 --> 0:22:52.199 shadow docket with an agenda to identify rules that the 0:22:52.240 --> 0:22:56.320 Conservatives for whatever reason, don't like, are skeptical of, and 0:22:56.440 --> 0:22:59.800 get them up to the Supreme Court. This stay ordered, 0:22:59.800 --> 0:23:04.200 by the way, isn't just holding off until the Ninth 0:23:04.200 --> 0:23:08.040 Circuit decides. The order also says if there's a petition 0:23:08.320 --> 0:23:11.200 for Sir sharr I, which of course there there would 0:23:11.200 --> 0:23:14.520 be probably either way, but certainly there would be if 0:23:14.560 --> 0:23:19.080 the Ninth Circuit upholds Judge Outsels decisions vacating the Trump 0:23:19.160 --> 0:23:21.880 rule the Supreme Court, and this order has said if 0:23:21.880 --> 0:23:24.600 there's a petition for certain if we grant it, then 0:23:24.640 --> 0:23:26.720 this day is going to stay in place until we've 0:23:26.760 --> 0:23:30.000