1 00:00:03,160 --> 00:00:13,160 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:14,960 --> 00:00:18,600 Speaker 1: The stunning leak of the draft of Justice Alito's opinion 3 00:00:18,800 --> 00:00:23,440 Speaker 1: overturning Roe v. Wade has led to demonstrations across the country, 4 00:00:23,680 --> 00:00:27,560 Speaker 1: a doomed attempt by Senate Democrats to establish a federal 5 00:00:27,680 --> 00:00:32,160 Speaker 1: right to abortion, fences being erected around the Supreme Court building, 6 00:00:32,400 --> 00:00:35,880 Speaker 1: and a lot of speculation about the repercautions of ending 7 00:00:35,920 --> 00:00:40,240 Speaker 1: the half century old right to abortion, including from Treasury 8 00:00:40,280 --> 00:00:45,200 Speaker 1: Secretary Janet Yellen, who warned Congress that reversing Row would 9 00:00:45,200 --> 00:00:48,520 Speaker 1: have a negative effect on the economy. I believe that 10 00:00:48,640 --> 00:00:53,800 Speaker 1: eliminating the right of women to make decisions about when 11 00:00:53,840 --> 00:00:57,920 Speaker 1: in whether to have children would have very damaging effects 12 00:00:58,560 --> 00:01:03,639 Speaker 1: on the economy and would set women back decades. Growphy 13 00:01:03,720 --> 00:01:09,560 Speaker 1: Wade in access to reproductive health care, including abortion, helped 14 00:01:09,640 --> 00:01:15,640 Speaker 1: lead to increase labor force participation. It enabled many women 15 00:01:15,840 --> 00:01:20,960 Speaker 1: to finish school that increase their earning potential. My guest 16 00:01:21,040 --> 00:01:24,360 Speaker 1: is Mary Ziegler, a professor at you See Davis Law School. 17 00:01:24,920 --> 00:01:27,800 Speaker 1: Is this the first time the Supreme Court would be 18 00:01:27,920 --> 00:01:33,360 Speaker 1: overturning precedent to eliminate a constitutional right? The only other 19 00:01:33,440 --> 00:01:36,840 Speaker 1: case you could maybe site is you know, Lochner, which 20 00:01:37,640 --> 00:01:41,200 Speaker 1: was the constitutional right to contract, freedom of contract. But 21 00:01:41,600 --> 00:01:43,840 Speaker 1: I think obviously that's case. It was different because in 22 00:01:43,840 --> 00:01:48,080 Speaker 1: practice it sort of served to undercut minimum wage laws 23 00:01:48,120 --> 00:01:51,840 Speaker 1: and other laws. It wasn't often invoked by workers to 24 00:01:52,480 --> 00:01:55,160 Speaker 1: protect themselves, although it sometimes was, So I think this 25 00:01:55,240 --> 00:01:57,720 Speaker 1: is I mean, certainly one of the only times. That's 26 00:01:57,720 --> 00:01:59,640 Speaker 1: not the only time the court has taken away right 27 00:01:59,680 --> 00:02:03,160 Speaker 1: like this. Some states have trigger laws which kick in 28 00:02:03,720 --> 00:02:08,400 Speaker 1: if Rowe is overturned. This draft decision leaves abortion to 29 00:02:08,480 --> 00:02:12,000 Speaker 1: the states, and that would mean a patchwork of abortion 30 00:02:12,080 --> 00:02:15,480 Speaker 1: laws across the country. Tell us about the range of 31 00:02:15,600 --> 00:02:19,440 Speaker 1: restrictions we could see on abortion. So I mean, we 32 00:02:19,480 --> 00:02:23,520 Speaker 1: don't even entirely know the full range of constraints because 33 00:02:23,520 --> 00:02:26,600 Speaker 1: states are still hashing out exactly what they mean by 34 00:02:26,639 --> 00:02:29,799 Speaker 1: abortion in terms of whether that's going to sweep in 35 00:02:30,080 --> 00:02:34,440 Speaker 1: other pregnancy adjacent things like i U D S or 36 00:02:34,600 --> 00:02:36,960 Speaker 1: the morning after pill. The governor of Mississippi was on 37 00:02:37,040 --> 00:02:38,920 Speaker 1: CNN just the other day and was not willing to 38 00:02:38,960 --> 00:02:41,400 Speaker 1: answer a question about whether those would be included in 39 00:02:41,400 --> 00:02:44,520 Speaker 1: abortion vans or you know, steps and infertility treatment like 40 00:02:44,560 --> 00:02:46,920 Speaker 1: in vitro fertilization, and they're trying to figure out how 41 00:02:47,000 --> 00:02:49,120 Speaker 1: they're actually going to enforce these laws. But we do 42 00:02:49,200 --> 00:02:52,360 Speaker 1: know that somewhere in the ballpark of past, the states 43 00:02:52,360 --> 00:02:56,160 Speaker 1: are going to criminalize virtually all abortions within a very 44 00:02:56,200 --> 00:02:58,720 Speaker 1: short period of time after Roe comes down. And then 45 00:02:58,720 --> 00:03:00,640 Speaker 1: it's just a matter of what exactly that means on 46 00:03:00,639 --> 00:03:04,239 Speaker 1: the ground when you say criminalize, make it a crime 47 00:03:04,280 --> 00:03:06,200 Speaker 1: for a woman to get an abortion, or make it 48 00:03:06,240 --> 00:03:09,200 Speaker 1: a crime for a doctor to perform an abortion. The 49 00:03:09,320 --> 00:03:12,200 Speaker 1: first round of these laws seem to be focused primarily 50 00:03:12,240 --> 00:03:14,200 Speaker 1: on making it a crime for a doctor to perform 51 00:03:14,200 --> 00:03:17,160 Speaker 1: an abortion, and perhaps for people to aid or a 52 00:03:17,200 --> 00:03:20,160 Speaker 1: bet that doctor in performing the abortion. But we've already 53 00:03:20,200 --> 00:03:22,720 Speaker 1: seen that that's up for debate. Louisiana has a bill 54 00:03:23,040 --> 00:03:27,400 Speaker 1: moving through that legislature that would also authorize the punishment 55 00:03:27,520 --> 00:03:30,399 Speaker 1: of pregnant people and women, So at the moment that's 56 00:03:30,440 --> 00:03:33,320 Speaker 1: not on the table, but we've seen states begin to 57 00:03:33,360 --> 00:03:38,280 Speaker 1: consider the possibility. What about self managed abortions. There was 58 00:03:38,320 --> 00:03:41,720 Speaker 1: the Texas woman who was arrested when she was reported 59 00:03:41,760 --> 00:03:45,280 Speaker 1: by the hospital staff. She was arrested on murder charges, 60 00:03:45,600 --> 00:03:49,920 Speaker 1: and then the prosecutor dropped them because there's no such 61 00:03:50,000 --> 00:03:54,000 Speaker 1: crime in Texas. So yeah, well, some managed abortions are 62 00:03:54,000 --> 00:03:56,160 Speaker 1: I think going to be one of the next fronts 63 00:03:56,240 --> 00:03:59,560 Speaker 1: in the conflict because what you saw, I think in 64 00:03:59,600 --> 00:04:01,840 Speaker 1: that tech this example is that on the one hand, 65 00:04:01,960 --> 00:04:05,080 Speaker 1: many red states, including Texas, have committed in law to 66 00:04:05,280 --> 00:04:10,080 Speaker 1: not punishing patients. But there's also I think attention because 67 00:04:10,440 --> 00:04:13,440 Speaker 1: in many cases of self managed abortion, there will be 68 00:04:13,480 --> 00:04:15,360 Speaker 1: no one else for the state to punish. The state 69 00:04:15,360 --> 00:04:17,560 Speaker 1: will be unable, for example, in the case of Lozelle 70 00:04:17,560 --> 00:04:20,320 Speaker 1: Carreira out of Texas, to punish a doctor in Mexico, 71 00:04:20,839 --> 00:04:24,360 Speaker 1: or to punish a doctor who's mailing pills from the Netherlands, 72 00:04:24,680 --> 00:04:26,880 Speaker 1: or to punish a doctor in the state like Connecticut, 73 00:04:26,880 --> 00:04:30,000 Speaker 1: which has recently passed a lawsiting it won't extradite doctors 74 00:04:30,040 --> 00:04:32,600 Speaker 1: to face criminal charges. So that essentially means the only 75 00:04:32,640 --> 00:04:35,520 Speaker 1: person who could be punished as the person managing the abortion. 76 00:04:35,680 --> 00:04:38,040 Speaker 1: So I think we're going to see states faced with, 77 00:04:38,279 --> 00:04:41,719 Speaker 1: you know, in their view, difficult decision between punishing people 78 00:04:41,880 --> 00:04:45,440 Speaker 1: who have abortions or just not enforcing their laws. Several 79 00:04:45,480 --> 00:04:49,520 Speaker 1: big employers like City Group, Yelp, and Uber have pledged 80 00:04:49,560 --> 00:04:53,760 Speaker 1: to pay travel expenses if their employees can't access an 81 00:04:53,760 --> 00:04:57,839 Speaker 1: abortion in their home state. Would those companies be targeted 82 00:04:57,880 --> 00:05:02,600 Speaker 1: next by by states. It's possible that they would be 83 00:05:02,640 --> 00:05:06,360 Speaker 1: considered um to have aided or revetted someone having an abortion. 84 00:05:06,400 --> 00:05:09,920 Speaker 1: I would be really surprised if read states went after 85 00:05:09,960 --> 00:05:13,960 Speaker 1: companies because they're they're already quite likely to be or 86 00:05:14,040 --> 00:05:18,520 Speaker 1: probably concerned that they will face adverse business consequences from 87 00:05:18,560 --> 00:05:21,200 Speaker 1: their positions on abortion. And I think it's possible that 88 00:05:21,279 --> 00:05:24,280 Speaker 1: these steps taken by employers to fund travel for their 89 00:05:24,320 --> 00:05:27,200 Speaker 1: workers maybe a first step. You may see something later 90 00:05:27,279 --> 00:05:30,960 Speaker 1: resembling the boycotts you saw with North Carolina and policy 91 00:05:30,960 --> 00:05:33,960 Speaker 1: on transgender people using the restroom of their choice. And 92 00:05:34,000 --> 00:05:37,480 Speaker 1: so if states do aggressively go after companies, they're almost 93 00:05:37,520 --> 00:05:41,120 Speaker 1: welcoming a more kind of robust reaction from the corporate 94 00:05:41,120 --> 00:05:44,359 Speaker 1: community that that one that may be coming anyway. The 95 00:05:44,440 --> 00:05:47,720 Speaker 1: next battleground, well, there are a few battlegrounds. So let's 96 00:05:47,720 --> 00:05:51,200 Speaker 1: say one of the next battlegrounds is states trying to 97 00:05:51,360 --> 00:05:55,760 Speaker 1: stop their residents from traveling across state lines to terminate 98 00:05:55,880 --> 00:05:59,920 Speaker 1: a pregnancy. Can states enforce their laws beyond their border? 99 00:06:00,520 --> 00:06:03,280 Speaker 1: The answer is, we don't know, so the extra territorial 100 00:06:03,520 --> 00:06:06,520 Speaker 1: application of these laws is something that hasn't or even 101 00:06:06,560 --> 00:06:08,960 Speaker 1: really any laws, is something that hasn't been dealt with 102 00:06:09,080 --> 00:06:12,120 Speaker 1: a lot in recent history. We have one case that 103 00:06:12,240 --> 00:06:14,839 Speaker 1: isn't really directly on point from the Row era, and 104 00:06:14,880 --> 00:06:17,000 Speaker 1: then to look back further, you really have to go 105 00:06:17,080 --> 00:06:19,880 Speaker 1: to the days of kind of fugitive slave disputes to 106 00:06:19,920 --> 00:06:22,960 Speaker 1: really get into this kind of interstate war. So I 107 00:06:23,040 --> 00:06:25,280 Speaker 1: don't know is the answer, and so that's one of 108 00:06:25,360 --> 00:06:28,640 Speaker 1: the reasons you see blue states anticipating these struggles and 109 00:06:28,720 --> 00:06:31,279 Speaker 1: passing laws like the one in Connecticut essentially saying we're 110 00:06:31,320 --> 00:06:34,520 Speaker 1: not going to comply with these requests. But how those 111 00:06:34,560 --> 00:06:37,200 Speaker 1: disputes will be resolved, Whether what the red state would 112 00:06:37,240 --> 00:06:40,520 Speaker 1: be doing would be constitutional is unclear. Which states law 113 00:06:40,600 --> 00:06:43,800 Speaker 1: would apply in those circumstances is unclear. And the great 114 00:06:43,839 --> 00:06:46,320 Speaker 1: irony of it all, of course, is that if that's contested, 115 00:06:46,640 --> 00:06:49,039 Speaker 1: gonna end right back up in the Supreme Court, which 116 00:06:49,040 --> 00:06:51,360 Speaker 1: in this draft is telling us that, you know, things 117 00:06:51,360 --> 00:06:53,480 Speaker 1: are going to become much more peaceful when the Court 118 00:06:53,520 --> 00:06:55,600 Speaker 1: gets out of the abortion business. And this goes back 119 00:06:55,600 --> 00:06:59,599 Speaker 1: to the states. Practically, I'm wondering how they would enforce 120 00:06:59,680 --> 00:07:02,839 Speaker 1: it unless they had a law like Texas is, which 121 00:07:02,920 --> 00:07:06,800 Speaker 1: makes every citizen and enforce or a bounty hunter. Yeah, 122 00:07:06,800 --> 00:07:09,760 Speaker 1: there are lots of different possibilities. I think one possibility 123 00:07:09,800 --> 00:07:14,000 Speaker 1: is sort of digital surveillance. There are potential ways people 124 00:07:14,080 --> 00:07:17,360 Speaker 1: can get caught. Law enforcement can buy your search data, 125 00:07:17,720 --> 00:07:21,400 Speaker 1: they can troll your social media. There may be programs 126 00:07:21,520 --> 00:07:25,119 Speaker 1: along those lines. There are likely going to be people 127 00:07:25,160 --> 00:07:29,040 Speaker 1: who are found out when they seek treatment for medical complications, 128 00:07:29,040 --> 00:07:31,680 Speaker 1: which is terrible because it's going to disincentivize people from 129 00:07:31,680 --> 00:07:35,760 Speaker 1: seeking treatment for medical complications, including for conditions that aren't 130 00:07:35,800 --> 00:07:39,480 Speaker 1: abortion like miscarriages. And then I think finally, people are 131 00:07:39,560 --> 00:07:41,559 Speaker 1: likely to be caught the same way people are caught 132 00:07:41,600 --> 00:07:44,160 Speaker 1: for using marijuana, which is to say, people in the 133 00:07:44,200 --> 00:07:47,040 Speaker 1: most highly policed communities will be more likely to be 134 00:07:47,080 --> 00:07:49,760 Speaker 1: found out just simply because they're having more interactions with 135 00:07:49,840 --> 00:07:53,480 Speaker 1: law enforcement, which I think would most likely be unsurprisingly right, 136 00:07:53,560 --> 00:07:56,240 Speaker 1: people of color, low income people, people who are already 137 00:07:56,320 --> 00:08:01,160 Speaker 1: disproportunately affected by the criminal justice system. Another next battleground 138 00:08:01,600 --> 00:08:05,720 Speaker 1: is medication abortion or abortion pills, which account for more 139 00:08:05,720 --> 00:08:09,160 Speaker 1: than half of recent abortions. Is this the most workable 140 00:08:09,240 --> 00:08:13,400 Speaker 1: option in the future for getting an abortion. It may 141 00:08:13,440 --> 00:08:18,000 Speaker 1: well be medication abortion. Obviously isn't applicable throughout pregnancy at 142 00:08:18,040 --> 00:08:20,480 Speaker 1: the moment. The FDA only authorizes it for the first 143 00:08:20,520 --> 00:08:24,080 Speaker 1: ten weeks, but it is becoming the preferred method and 144 00:08:24,120 --> 00:08:26,640 Speaker 1: it is relatively hard to trace. It is something that 145 00:08:26,680 --> 00:08:29,680 Speaker 1: people can get in states who are abortion is illegal 146 00:08:29,880 --> 00:08:33,760 Speaker 1: from organizations like aid Access that operates internationally. But I 147 00:08:33,800 --> 00:08:36,679 Speaker 1: think in a poster real world, no abortion method will 148 00:08:36,720 --> 00:08:41,000 Speaker 1: be really free of potential consequences for people seeking it. Unfortunately, 149 00:08:41,440 --> 00:08:45,239 Speaker 1: some states also banned the use of telemedicine for abortion, 150 00:08:45,320 --> 00:08:47,800 Speaker 1: So is that a way of cutting people off from 151 00:08:47,840 --> 00:08:51,319 Speaker 1: these pills. It may be. Um So states are already 152 00:08:51,320 --> 00:08:54,920 Speaker 1: trying to prevent telemedicine abortion. Nineteen of them have laws 153 00:08:54,920 --> 00:08:56,880 Speaker 1: in place to do this, and of course they'll expand 154 00:08:56,920 --> 00:09:00,280 Speaker 1: those prohibitions to just outlaw a worship altogether in looting 155 00:09:00,320 --> 00:09:03,200 Speaker 1: medication abortion. So there's already kind of an arms race 156 00:09:03,280 --> 00:09:06,359 Speaker 1: between states trying to shut down access to these pills 157 00:09:06,400 --> 00:09:09,840 Speaker 1: and groups that support abortion rights trying to circumvent those laws. 158 00:09:10,360 --> 00:09:13,000 Speaker 1: What other areas do you think are going to be 159 00:09:13,200 --> 00:09:17,199 Speaker 1: battlegrounds or litigated coming up? They'll be questions about how 160 00:09:17,240 --> 00:09:21,040 Speaker 1: broadly the state defines abortion and whether those broad definitions 161 00:09:21,080 --> 00:09:24,480 Speaker 1: create any constitutional questions. For example, if the state bans 162 00:09:24,520 --> 00:09:27,520 Speaker 1: in vitro fertilization or if the state bands I U 163 00:09:27,600 --> 00:09:29,920 Speaker 1: D S, you know, does that raise constitutional questions? I 164 00:09:29,960 --> 00:09:32,400 Speaker 1: think they'll be questions as you mentioned about out of 165 00:09:32,440 --> 00:09:35,000 Speaker 1: state travel, and I think finally they'll be questions about 166 00:09:35,000 --> 00:09:37,600 Speaker 1: whether there will be a nationwide ban on abortion, something 167 00:09:37,600 --> 00:09:40,840 Speaker 1: that we've seen Congressional Republicans float, and something also that 168 00:09:40,880 --> 00:09:43,360 Speaker 1: anti abortion groups are asking the Supreme Court to do 169 00:09:43,360 --> 00:09:46,840 Speaker 1: down the road by essentially recognizing the person put of 170 00:09:46,840 --> 00:09:49,120 Speaker 1: the fetis or on board child. Does it seem clear 171 00:09:49,160 --> 00:09:53,440 Speaker 1: to you that contraception is another target ahead, potentially, because 172 00:09:53,559 --> 00:09:56,479 Speaker 1: within the anti abortion movement, they are very different definitions 173 00:09:56,520 --> 00:09:58,840 Speaker 1: of what counts us an abortion inducing drug, and that 174 00:09:58,880 --> 00:10:02,359 Speaker 1: can often sweep in some of what most people consider contraceptive. 175 00:10:02,400 --> 00:10:04,640 Speaker 1: So it would not surprise me if at least some 176 00:10:04,720 --> 00:10:08,320 Speaker 1: states sweep in some forms of contraception in their abortion bands, 177 00:10:08,480 --> 00:10:11,679 Speaker 1: because I think unbeknownst to most Americans, there's a live 178 00:10:11,720 --> 00:10:14,840 Speaker 1: battle for some time about what aborsition means, not just 179 00:10:14,920 --> 00:10:17,920 Speaker 1: whether it should be legal. Does Aldo's reason a name 180 00:10:18,040 --> 00:10:21,840 Speaker 1: that other constitutional rights that, to quote him, are not 181 00:10:22,080 --> 00:10:26,000 Speaker 1: deeply rooted in this nation's history and tradition, like gay 182 00:10:26,040 --> 00:10:29,480 Speaker 1: marriage could be in jeopardy. Well, we've seen sometimes of 183 00:10:29,559 --> 00:10:32,720 Speaker 1: it in parts. Samuel Alito and Clarence Thomas has already 184 00:10:32,960 --> 00:10:35,880 Speaker 1: very publicly argued that the Supreme Court's decision on gay 185 00:10:35,920 --> 00:10:39,040 Speaker 1: marriage was wrongly decided. The reasoning of the draft could 186 00:10:39,080 --> 00:10:42,520 Speaker 1: easily apply to any of the Court's jurisprudence on a 187 00:10:42,600 --> 00:10:46,480 Speaker 1: substantive due process rights of privacy, including same sex marriage. 188 00:10:46,600 --> 00:10:49,240 Speaker 1: So I think it's a question of one, do states 189 00:10:49,480 --> 00:10:52,120 Speaker 1: do something that would give rise to a case? And 190 00:10:52,440 --> 00:10:54,760 Speaker 1: who does the Court really want to take down the 191 00:10:54,960 --> 00:10:58,160 Speaker 1: entirety of substantive due process jurisprudence. And I don't think 192 00:10:58,160 --> 00:11:00,559 Speaker 1: the answer to that is yes today. But I think 193 00:11:00,600 --> 00:11:02,559 Speaker 1: if you're looking five or ten years down the road, 194 00:11:02,600 --> 00:11:05,480 Speaker 1: I imagine you'll get a different answer. Finally, and you 195 00:11:05,559 --> 00:11:08,640 Speaker 1: refer to this, but do you think the five justices 196 00:11:08,960 --> 00:11:13,240 Speaker 1: who allegedly voted for this knew the can of worms 197 00:11:13,360 --> 00:11:16,920 Speaker 1: they were opening and how this would further divide an 198 00:11:16,960 --> 00:11:20,400 Speaker 1: already divided country, or did they just not care? I 199 00:11:20,440 --> 00:11:22,520 Speaker 1: think that they don't care. Is a fairer reading at 200 00:11:22,600 --> 00:11:24,640 Speaker 1: least of the draft. The draft mor orlist says they 201 00:11:24,679 --> 00:11:27,400 Speaker 1: don't care. So the draft essentially says, our job is 202 00:11:27,440 --> 00:11:30,320 Speaker 1: to interpret the law, and if that, you know, destroys 203 00:11:30,360 --> 00:11:32,680 Speaker 1: the country all along the way, that's really not our problem. 204 00:11:32,960 --> 00:11:35,200 Speaker 1: The irony, of course, is that one of the arguments 205 00:11:35,280 --> 00:11:38,200 Speaker 1: the draft offers for undoing Row is that it polarized 206 00:11:38,200 --> 00:11:41,439 Speaker 1: the debate and deepened the country's divide. And so it's strange, 207 00:11:41,520 --> 00:11:43,720 Speaker 1: to say the least, that the Court seems disinterested in 208 00:11:43,760 --> 00:11:45,920 Speaker 1: whether it's about to do that again in this decision. 209 00:11:46,120 --> 00:11:49,720 Speaker 1: Thanks Mary, that's professor Mary Ziegler of u C. Davis 210 00:11:49,800 --> 00:11:54,400 Speaker 1: Law School. The Senate rushed into an almost certain to 211 00:11:54,440 --> 00:11:58,240 Speaker 1: fail vote toward enshrining Roe v. Wade abortion access as 212 00:11:58,320 --> 00:12:01,800 Speaker 1: federal law. The roll call promised to be the first 213 00:12:01,840 --> 00:12:05,800 Speaker 1: of several efforts in Congress to preserve the nearly fifty 214 00:12:05,880 --> 00:12:10,000 Speaker 1: year old court ruling, which declares a constitutional right to abortion, 215 00:12:10,320 --> 00:12:13,680 Speaker 1: but it's likely to be overturned by five conservative members 216 00:12:13,679 --> 00:12:17,320 Speaker 1: of the Supreme Court. My guest is Elizabeth Sepper, a 217 00:12:17,360 --> 00:12:21,280 Speaker 1: professor at the University of Texas Law School. Aldo's is 218 00:12:21,320 --> 00:12:25,160 Speaker 1: a draft opinion. Does it matter if the language is 219 00:12:25,320 --> 00:12:29,280 Speaker 1: changed in the final opinion, if Row is still reversed, 220 00:12:30,000 --> 00:12:35,320 Speaker 1: a change in the language might limit the immediate repercussions 221 00:12:35,360 --> 00:12:40,719 Speaker 1: of the opinion beyond reproductive health and beyond abortion. So 222 00:12:40,760 --> 00:12:44,920 Speaker 1: we could see reasoning that would let us know that 223 00:12:45,360 --> 00:12:50,640 Speaker 1: same sex marriage and contraception, for instance, are not under 224 00:12:50,840 --> 00:12:54,280 Speaker 1: immediate threat. But Justice Alito's opinion doesn't give us any 225 00:12:54,320 --> 00:12:58,400 Speaker 1: such reassurance. He says, they're not under threat. But you know, 226 00:12:58,440 --> 00:13:02,200 Speaker 1: I just wonder it the way they're overturning precedent, not 227 00:13:02,280 --> 00:13:04,640 Speaker 1: only in this case but in other cases, whether you 228 00:13:04,679 --> 00:13:08,400 Speaker 1: can really believe that. I think there are two points. First, 229 00:13:08,679 --> 00:13:13,280 Speaker 1: the court is quite political, and the five radical justices 230 00:13:13,360 --> 00:13:16,040 Speaker 1: on the Supreme Court all told us that they were 231 00:13:16,080 --> 00:13:20,160 Speaker 1: not interested in overturning Roge Wade, that it was precedent 232 00:13:20,320 --> 00:13:23,480 Speaker 1: that they would stick to. So we've already seen that that, 233 00:13:23,600 --> 00:13:26,679 Speaker 1: in fact, is not the direction in which they are going. 234 00:13:27,080 --> 00:13:31,240 Speaker 1: The second point is that Justice Alito's opinion uses a 235 00:13:31,440 --> 00:13:35,240 Speaker 1: test that looks to whether a rate is deeply rooted 236 00:13:35,320 --> 00:13:39,559 Speaker 1: in history and tradition, and if it's not, he says, 237 00:13:39,559 --> 00:13:42,960 Speaker 1: while the Constitution doesn't protect that right, but we know 238 00:13:43,120 --> 00:13:46,400 Speaker 1: that lots of what we consider to be our fundamental 239 00:13:46,520 --> 00:13:51,040 Speaker 1: constitutional rights, including right to contraception, arguably could be said 240 00:13:51,120 --> 00:13:55,600 Speaker 1: not to be deeply rooted in history and tradition. So 241 00:13:56,000 --> 00:14:01,719 Speaker 1: under Alida's reasoning, our contraceptive that at after conception, like 242 00:14:01,840 --> 00:14:04,600 Speaker 1: I U D S or the morning after pill, are 243 00:14:04,640 --> 00:14:08,640 Speaker 1: they considered abortion. So uh, there are a number of 244 00:14:08,679 --> 00:14:13,360 Speaker 1: forms of emergency contraception, and the primary and for many 245 00:14:13,400 --> 00:14:16,920 Speaker 1: of them, the exclusive mechanism of action is to prevent 246 00:14:17,520 --> 00:14:22,080 Speaker 1: fertilization of the egg with sperm um. Some of them 247 00:14:22,160 --> 00:14:28,680 Speaker 1: may prevent implantation, but with the possible exception of an 248 00:14:28,720 --> 00:14:30,680 Speaker 1: I E D of a particular type of io D, 249 00:14:31,000 --> 00:14:35,920 Speaker 1: they don't interfere with an implanted pregnancy. So from a 250 00:14:35,960 --> 00:14:41,680 Speaker 1: medical standpoint, From a scientific standpoint, emergency contraception has nothing 251 00:14:41,800 --> 00:14:46,840 Speaker 1: to do with ending a pregnancy. From a religious point 252 00:14:47,080 --> 00:14:51,040 Speaker 1: of view, however, uh, you know, there are religious groups 253 00:14:51,080 --> 00:14:54,880 Speaker 1: that believe that life begins at what they call conception. 254 00:14:54,960 --> 00:14:57,400 Speaker 1: This is not a medical term, but they mean the 255 00:14:57,440 --> 00:15:02,480 Speaker 1: fertilization of an egg with a sperm and in that case, 256 00:15:03,320 --> 00:15:07,880 Speaker 1: loss of what we think of as distinctly contraceptive becomes 257 00:15:07,920 --> 00:15:12,880 Speaker 1: a mechanism that ends a potential future life and proples. 258 00:15:12,920 --> 00:15:16,480 Speaker 1: More to the point right, we have seen Justice Alito 259 00:15:16,920 --> 00:15:20,880 Speaker 1: in opinions for the Supreme Court, the Hobby Lobby opinion, 260 00:15:20,960 --> 00:15:24,120 Speaker 1: for example, Little Sisters of the Poor. We also saw 261 00:15:24,680 --> 00:15:30,160 Speaker 1: um emergency contraception referred to as an abortiveacients. So this 262 00:15:30,320 --> 00:15:34,040 Speaker 1: Kavanaugh at his confirmation hearings used exactly the same language. 263 00:15:34,120 --> 00:15:36,760 Speaker 1: This is not true as a matter of science and fact, 264 00:15:37,160 --> 00:15:40,400 Speaker 1: but it is the religious perspective, it would seem of 265 00:15:40,480 --> 00:15:45,920 Speaker 1: these particular justices. So is contraception the next target of 266 00:15:45,960 --> 00:15:49,760 Speaker 1: the right to life movement For anti abortion activists, I'm 267 00:15:49,760 --> 00:15:52,240 Speaker 1: not sure what the next target is in terms of 268 00:15:52,600 --> 00:15:56,680 Speaker 1: pulling back constitutional rights. It seems to me quite clear 269 00:15:56,720 --> 00:16:00,880 Speaker 1: that emergency contraception is initially in the cross pairs. And 270 00:16:00,920 --> 00:16:04,280 Speaker 1: what could see how the analysis that Justice Alito does 271 00:16:04,400 --> 00:16:09,840 Speaker 1: in this opinion, with relatively few modifications, could be applied 272 00:16:09,920 --> 00:16:14,560 Speaker 1: to the notion of a constitutional right to contraception. Now, 273 00:16:14,640 --> 00:16:18,640 Speaker 1: there are some folks who would say, well, yes, there 274 00:16:18,640 --> 00:16:23,560 Speaker 1: should be no constitutional rights to contraception for unmarried couples, 275 00:16:23,560 --> 00:16:28,960 Speaker 1: but married couples would be protected by the marittle privacy 276 00:16:29,040 --> 00:16:32,680 Speaker 1: that they say is deeply rooted in our history and tradition. 277 00:16:33,040 --> 00:16:35,680 Speaker 1: But the fact is that's even a talking point, even 278 00:16:35,840 --> 00:16:41,640 Speaker 1: something we're having discussions about, shows how quickly the movement 279 00:16:42,000 --> 00:16:48,520 Speaker 1: is shifting towards targeting other constitutional rights. Which constitutional rights 280 00:16:48,600 --> 00:16:51,960 Speaker 1: that are based in privacy, would Alida say, or the 281 00:16:52,000 --> 00:16:56,400 Speaker 1: Conservative Justices are deeply rooted in the constitution. The level 282 00:16:56,480 --> 00:16:59,520 Speaker 1: of generality at which we define a right matters quite 283 00:16:59,560 --> 00:17:02,800 Speaker 1: a bit. So the right to marry would seem to 284 00:17:02,880 --> 00:17:06,200 Speaker 1: be a right deeply rooted in our nation's history and tradition. 285 00:17:06,320 --> 00:17:09,800 Speaker 1: Now that right has excluded people throughout history. Right, it 286 00:17:09,880 --> 00:17:13,480 Speaker 1: excluded enslaved people. But we could say that that was 287 00:17:13,520 --> 00:17:16,480 Speaker 1: deeply rooted. Now Justice Alito, as we know from his 288 00:17:16,640 --> 00:17:20,760 Speaker 1: dissenting opinion, and o Berg if alv Hodges would say 289 00:17:20,920 --> 00:17:23,800 Speaker 1: same sex marriage is not part of that history, that 290 00:17:23,880 --> 00:17:27,680 Speaker 1: it's really man woman marriage that's part of our history, 291 00:17:28,160 --> 00:17:31,920 Speaker 1: not marriage between people of the same sex. Of course, 292 00:17:32,040 --> 00:17:34,720 Speaker 1: one could say the same thing about interracial marriage, that 293 00:17:34,840 --> 00:17:37,680 Speaker 1: from much of our history it was taboo, was not 294 00:17:37,800 --> 00:17:41,359 Speaker 1: protected by our laws or our traditions. I don't think 295 00:17:41,400 --> 00:17:44,880 Speaker 1: that any of the Conservative Justices want to go that far, 296 00:17:45,480 --> 00:17:48,359 Speaker 1: but the argument is there. Once we adopt a test 297 00:17:49,000 --> 00:17:53,320 Speaker 1: that looks at the eighteen hundreds in order to consider 298 00:17:53,359 --> 00:17:56,600 Speaker 1: what rights the Constitution should protect. That's where we are. 299 00:17:57,200 --> 00:18:00,240 Speaker 1: Justice Thomas is in an interracial marriage, so I out 300 00:18:00,280 --> 00:18:03,840 Speaker 1: that that's going to be something that's in question, But 301 00:18:04,320 --> 00:18:08,520 Speaker 1: gay marriage is something else. Both the Leado and Thomas 302 00:18:08,560 --> 00:18:12,879 Speaker 1: have questioned the constitutional right to gain marriage. Is reversing 303 00:18:12,920 --> 00:18:16,560 Speaker 1: the right to gain marriage different from reversing the right 304 00:18:16,920 --> 00:18:21,080 Speaker 1: to abortion. Because of the reliance interests of people who 305 00:18:21,400 --> 00:18:24,879 Speaker 1: are already in gay marriages. There are, you know, children 306 00:18:24,880 --> 00:18:28,879 Speaker 1: who have been adopted by gay parents. I just wonder 307 00:18:28,880 --> 00:18:33,399 Speaker 1: if that would be very difficult to unwind. So the 308 00:18:33,440 --> 00:18:36,920 Speaker 1: reliance interest between abortion and same sex marriage, I think 309 00:18:37,000 --> 00:18:41,560 Speaker 1: running exactly the opposite direction. We've had about fifty years 310 00:18:41,600 --> 00:18:44,760 Speaker 1: of Roe v. Wade. People have structured their whole lives 311 00:18:44,800 --> 00:18:48,720 Speaker 1: around this. There are multiple generations who have depended on 312 00:18:48,800 --> 00:18:52,600 Speaker 1: the existence of the abortion right. Same sex marriage as 313 00:18:52,600 --> 00:18:55,760 Speaker 1: a constitutional matter is seven years old, and I think 314 00:18:55,840 --> 00:18:59,280 Speaker 1: that many conservatives would say that the time period at 315 00:18:59,280 --> 00:19:03,920 Speaker 1: which Oberga Salvi Hodges was decided shows that the states 316 00:19:04,119 --> 00:19:07,320 Speaker 1: can make it work. Same sex marriage also has the 317 00:19:07,359 --> 00:19:09,920 Speaker 1: benefit of the full faith and Credit clause, so that 318 00:19:10,000 --> 00:19:13,440 Speaker 1: someone could go get married in Massachusetts come back to 319 00:19:13,600 --> 00:19:18,399 Speaker 1: Texas and have their marriage acknowledged by the state. So 320 00:19:18,480 --> 00:19:21,960 Speaker 1: I don't think the reliance interests are stronger. If anything, 321 00:19:22,000 --> 00:19:24,800 Speaker 1: they are weaker in the area of same sex marriage, 322 00:19:25,000 --> 00:19:27,960 Speaker 1: Which doesn't mean that they aren't essential and important and 323 00:19:28,040 --> 00:19:31,880 Speaker 1: that people haven't structured their life around same sex marriage. 324 00:19:32,359 --> 00:19:35,919 Speaker 1: But Justice Alito and his fellow travelers just gave the 325 00:19:35,920 --> 00:19:38,400 Speaker 1: back of a hand to the idea there was any 326 00:19:38,440 --> 00:19:44,480 Speaker 1: reliance interests from five decades of the abortion right. President Biden, 327 00:19:45,240 --> 00:19:50,760 Speaker 1: after this draft was revealed, named lgbt Q rights as 328 00:19:50,920 --> 00:19:55,840 Speaker 1: specifically at risk. What impact could a reversal of ROW 329 00:19:56,040 --> 00:20:02,640 Speaker 1: have for the transgender community. Well, Justice Alito's draft opinion 330 00:20:03,200 --> 00:20:09,000 Speaker 1: really questions whether the Constitution protects a right to privacy 331 00:20:09,200 --> 00:20:13,040 Speaker 1: in the fullteenth Amendment right with part of the basis 332 00:20:13,119 --> 00:20:16,119 Speaker 1: for the abortion right was the notion that privacy was 333 00:20:16,200 --> 00:20:20,800 Speaker 1: protected through the fourteenth Amendment and privacy rights are essential 334 00:20:20,920 --> 00:20:25,080 Speaker 1: for sexual autonomy. We could look back to Laurence by Texas, 335 00:20:25,240 --> 00:20:28,840 Speaker 1: where the Supreme Court, on both equal protection and substantive 336 00:20:28,880 --> 00:20:33,040 Speaker 1: due process grounds granted some measure of right to consensual 337 00:20:33,119 --> 00:20:37,120 Speaker 1: sexual intimacy. That matters quite a great deal for sexual 338 00:20:37,240 --> 00:20:41,960 Speaker 1: rights and rights with LGBTQ people. Rights to parent children 339 00:20:42,000 --> 00:20:45,719 Speaker 1: could become very fraught here. I think all the justices 340 00:20:45,800 --> 00:20:48,880 Speaker 1: would say that right to parents is part of our 341 00:20:48,960 --> 00:20:51,960 Speaker 1: deeply rooted history and tradition. But we're seeing at the 342 00:20:52,000 --> 00:20:56,199 Speaker 1: moment a concerted attack on the right of parents to 343 00:20:56,800 --> 00:21:02,000 Speaker 1: raise transgender kids, in attack on their decision making about 344 00:21:02,040 --> 00:21:07,120 Speaker 1: medical care and treatment for those particular children. And so 345 00:21:07,160 --> 00:21:10,600 Speaker 1: I think we will see some cases where states may 346 00:21:10,720 --> 00:21:15,160 Speaker 1: respond that the rights of parents just doesn't apply here 347 00:21:15,280 --> 00:21:19,760 Speaker 1: where we're talking about decisions about transgender kids. Looking at 348 00:21:19,880 --> 00:21:23,840 Speaker 1: what happened on Wednesday, where the Democrats couldn't even get 349 00:21:23,880 --> 00:21:28,440 Speaker 1: all their own members to vote for a bill protecting 350 00:21:28,440 --> 00:21:32,800 Speaker 1: abortion rights, what's the next step? What can be done? 351 00:21:33,440 --> 00:21:39,399 Speaker 1: Could passing the Equal Rights Amendment affect abortion rights? You know, 352 00:21:39,840 --> 00:21:43,800 Speaker 1: there's some irony here in that Equal Rights Amendment generated 353 00:21:43,840 --> 00:21:47,760 Speaker 1: lots of opposition, partly based on the bathroom issue um 354 00:21:47,840 --> 00:21:51,480 Speaker 1: and based on draft the draft and then abortion that 355 00:21:51,520 --> 00:21:54,919 Speaker 1: it would protect abortion. But now we've had decades of 356 00:21:55,119 --> 00:21:59,840 Speaker 1: court saying that reproductive healthcare has nothing to do with 357 00:22:00,320 --> 00:22:04,600 Speaker 1: sex equality, that pregnancy has nothing to do with sex equality. 358 00:22:05,000 --> 00:22:07,720 Speaker 1: And we saw Justice Alito do that in the draft opinion. 359 00:22:08,119 --> 00:22:10,280 Speaker 1: So it almost seems like the Equal Rights Amendment would 360 00:22:10,280 --> 00:22:13,760 Speaker 1: be much less likely to affect access to reproductive healthcare 361 00:22:14,080 --> 00:22:17,440 Speaker 1: than maybe we thought it would back when it was proposed. 362 00:22:18,000 --> 00:22:21,080 Speaker 1: What are some steps that the federal government could take 363 00:22:21,800 --> 00:22:24,560 Speaker 1: right away. The first thing the federal government could and 364 00:22:24,800 --> 00:22:28,720 Speaker 1: should and should have done is to more comprehensibly enforce 365 00:22:28,800 --> 00:22:32,959 Speaker 1: the Emergency Medical Treatment and Labor act Um. We know 366 00:22:33,200 --> 00:22:35,879 Speaker 1: that in particular and read states, but in states across 367 00:22:35,920 --> 00:22:38,800 Speaker 1: the country, that there are many hospitals that when someone 368 00:22:38,880 --> 00:22:42,560 Speaker 1: comes to the hospital miscaring, they do not treat them 369 00:22:42,560 --> 00:22:46,040 Speaker 1: according to the standard of care, and they violate federal 370 00:22:46,119 --> 00:22:49,600 Speaker 1: law requiring emergency treatment of people and labor according to 371 00:22:49,600 --> 00:22:52,600 Speaker 1: the standard of care. And those laws are enforceable by 372 00:22:52,600 --> 00:22:55,320 Speaker 1: the federal government and should be enforced. We have reports 373 00:22:55,400 --> 00:22:58,639 Speaker 1: from lots of states, but apparently some widespread practice in 374 00:22:58,680 --> 00:23:03,640 Speaker 1: places like al Lama, where doctors are concerned about legal 375 00:23:03,680 --> 00:23:06,920 Speaker 1: liability under the state law, but federal law pre empt 376 00:23:07,000 --> 00:23:09,959 Speaker 1: state law, and the federal government should be enforcing in Tala. 377 00:23:10,400 --> 00:23:12,960 Speaker 1: The second thing the government could do is act through 378 00:23:13,000 --> 00:23:16,640 Speaker 1: the Food and Drug Administration, so the federal government could 379 00:23:16,680 --> 00:23:20,000 Speaker 1: use the Food and Drug Administration UM to more clearly 380 00:23:20,080 --> 00:23:23,200 Speaker 1: pre empt state laws that attempt to interfere with access 381 00:23:23,280 --> 00:23:27,440 Speaker 1: to medication abortion. And this could have some major effect 382 00:23:27,640 --> 00:23:31,800 Speaker 1: because states are going to be focused I think going forward, 383 00:23:32,320 --> 00:23:35,480 Speaker 1: UM quite a bit on access to medication abortion and 384 00:23:35,560 --> 00:23:41,600 Speaker 1: self managed abortion care. Is that something that's difficult to control, 385 00:23:41,880 --> 00:23:46,600 Speaker 1: difficult for states who outlaw abortion to control, you know, 386 00:23:46,680 --> 00:23:50,359 Speaker 1: the sending of pills right, States will have a much 387 00:23:50,440 --> 00:23:55,160 Speaker 1: harder time targeting medication abortion than they have targeting abortion 388 00:23:55,320 --> 00:24:00,160 Speaker 1: providers in clinics. And the states don't have control over 389 00:24:00,200 --> 00:24:02,960 Speaker 1: the mail. That's the province of the federal government. But 390 00:24:03,720 --> 00:24:06,119 Speaker 1: I think we should all recall that we're essentially carrying 391 00:24:06,119 --> 00:24:09,639 Speaker 1: around surveillance devices in our hands. And I think we 392 00:24:09,680 --> 00:24:14,080 Speaker 1: will see lots of efforts made to target medication abortion 393 00:24:14,119 --> 00:24:17,159 Speaker 1: and cut off the flow. And states, um, you know, 394 00:24:17,240 --> 00:24:19,520 Speaker 1: aren't going to be able to prosecute everyone. They're not 395 00:24:19,560 --> 00:24:21,880 Speaker 1: going to be able to stop everyone from getting access 396 00:24:21,920 --> 00:24:24,880 Speaker 1: to medication abortion. There will be lots of medication abortion, 397 00:24:25,320 --> 00:24:28,040 Speaker 1: but I suspect states will target their energy on people 398 00:24:28,240 --> 00:24:32,200 Speaker 1: they know our movement actors and may be helping supply 399 00:24:32,359 --> 00:24:36,239 Speaker 1: medication abortion to people in states that prohibit it. I 400 00:24:36,400 --> 00:24:40,960 Speaker 1: just want to get your reaction to what Janet Yellen testified, 401 00:24:41,520 --> 00:24:43,720 Speaker 1: and she said, I believe that eliminating the right of 402 00:24:43,720 --> 00:24:46,879 Speaker 1: women to make decisions about when and whether to have 403 00:24:47,040 --> 00:24:50,760 Speaker 1: children would have a very damaging effect on the economy 404 00:24:50,840 --> 00:24:54,000 Speaker 1: and would set women back decades. Do you think this 405 00:24:54,080 --> 00:24:58,240 Speaker 1: would set women back decades? We know what happens when 406 00:24:58,880 --> 00:25:03,119 Speaker 1: women don't have acts US too good reproductive healthcare. They 407 00:25:03,240 --> 00:25:06,640 Speaker 1: end up getting pregnant when they're teenagers. They end up 408 00:25:06,920 --> 00:25:10,760 Speaker 1: marrying partners who they shouldn't marry, or stay with partners 409 00:25:10,760 --> 00:25:14,680 Speaker 1: they shouldn't. Mary end up trapped in situations that they 410 00:25:14,680 --> 00:25:18,640 Speaker 1: can't get out of, and they don't have the time 411 00:25:19,040 --> 00:25:22,480 Speaker 1: or recourse is to be able to devote to education 412 00:25:22,720 --> 00:25:25,920 Speaker 1: and employment that they otherwise hat would have if they 413 00:25:25,920 --> 00:25:29,680 Speaker 1: could make the decisions about when and how to form 414 00:25:29,720 --> 00:25:33,960 Speaker 1: their families. Thanks Liz. That's Professor Elizabeth Sepper of the 415 00:25:34,080 --> 00:25:37,439 Speaker 1: University of Texas Law School, And that's it for this 416 00:25:37,560 --> 00:25:40,280 Speaker 1: edition of the Bloomberg Law Show. Remember you can always 417 00:25:40,320 --> 00:25:43,240 Speaker 1: get the latest legal news on our Bloomberg Law Podcast. 418 00:25:43,520 --> 00:25:46,520 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 419 00:25:46,720 --> 00:25:51,760 Speaker 1: www dot Bloomberg dot com. Slash podcast Slash Law, and 420 00:25:51,800 --> 00:25:54,520 Speaker 1: remember to tune into The Bloomberg Law Show every week 421 00:25:54,640 --> 00:25:57,760 Speaker 1: night at ten b m Wall Street Time. I'm June 422 00:25:57,760 --> 00:25:59,879 Speaker 1: Grosso and you're listening to Bloomberg