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Speaker 1: This is Bloomberg Law with June Brusso from Bloombird Radio.

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Speaker 1: President Joe Biden has not outlined any executive actions he'll

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Speaker 1: take to shore up abortion rights after the Supreme Court

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Speaker 1: reversed the constitutional right to an abortion last Friday. However,

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Speaker 1: Biden did say this on the Jimmy Kimmels Show a

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Speaker 1: few weeks ago. There's a whole range of things that

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Speaker 1: are at stake here. When we talk about eliminating Roe v.

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Speaker 1: Wade and all, it's all the sex marriage. I mean,

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Speaker 1: it's just ridiculous in my view, and I don't think

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Speaker 1: the country will stand for it. But I think what

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Speaker 1: we're gonna have to do, there's some executive orders I

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Speaker 1: could employ. We believe we're we're looking at that right now.

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Speaker 1: A group of Senate Democrats is urging President Joe Biden

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Speaker 1: to take bold and immediate action on abortion rights, to

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Speaker 1: quote you, the full force of the federal government to

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Speaker 1: protect access to abortion in the United States. Some of

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Speaker 1: the things that have been suggested are to increase access

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Speaker 1: to medication abortion and provide resources for people seeking out

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Speaker 1: of state abortion care, such as travel vouchers. Joining me

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Speaker 1: to discuss some of the suggestions is Mary Ziegler, a

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Speaker 1: professor at U C. Davis Law School. I know this

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Speaker 1: is unlikely to happen with this Congress, but theoretically speaking,

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Speaker 1: could Congress pass a law that would bar states from

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Speaker 1: outlawing abortion. There would be a constitutional challenge to that,

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Speaker 1: simply because Congress has limited authority. Right, So, whenever Congress

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Speaker 1: passes ability needs to tell you which part of the

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Speaker 1: Constitution it's looking at. And if you know, Congress could

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Speaker 1: theoretically look at the Commerce clause um. But if if

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Speaker 1: it's saying that it's essentially recognizing a right to abortion,

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Speaker 1: Congress's ability to define the scope of rights rather than

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Speaker 1: just enforce them under the fourteenth Amendment is limited. So

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Speaker 1: if Congress did want to introduce protection for abortion rights,

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Speaker 1: it would probably have to do it in a different way.

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Speaker 1: So let's talk about some of the things discussed that

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Speaker 1: the president could do so Mary, he could declare a

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Speaker 1: national public health emergency. The advantage of declaring a public

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Speaker 1: health emergency would mean that the Department of Health and

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Speaker 1: Human Services would at least temporarily suspend state based rules

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Speaker 1: on medical licensing, and that would allow loose state doctors

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Speaker 1: to perform abortions and states where abortion is outlawed or restricted. Um,

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Speaker 1: so that's the reason that that's being considered. I think

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Speaker 1: the challenge, obviously if you're talking about people traveling to

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Speaker 1: states where abortion is illegal, is that there would almost

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Speaker 1: certainly be not only legal challenges to that kind of strategy,

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Speaker 1: but also efforts, you know, likely to arrest those doctors

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Speaker 1: if they are in Red states performing abortions. So there

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Speaker 1: may be kind of practical limits as well as legal challenges. Also,

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Speaker 1: when the Biden administration use the Public Health Emergency to

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Speaker 1: declare our rent moratorium during COVID, the Supreme Court didn't

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Speaker 1: allow that. Yeah, that's right, and so almost certainly if

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Speaker 1: the Biden administration did that, it would invite a legal challenge.

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Speaker 1: And I think the other thing that's worth emphasizing is

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Speaker 1: that it's one thing for doctors in blue states to

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Speaker 1: perform abortions for folks who are traveling from out of state.

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Speaker 1: It's another to ask them to travel to states that

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Speaker 1: have proclaimed their intention to prosecute and sue anyone who

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Speaker 1: performs abortion. Right, So for people to travel to those states,

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Speaker 1: their potential risk of exposure to adverse consequences as fire

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Speaker 1: and so declaring a public health emergency in addition to

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Speaker 1: you know, ending up the challenged in the courts, may

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Speaker 1: also not have a lot of takers in terms of

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Speaker 1: doctors willing to deal with those potential risks. We've talked

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Speaker 1: before about abortion pills and how that may be the

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Speaker 1: new frontier for abortion. Right now, the FDA requires any

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Speaker 1: pharmacy that distributes a drug to obtain a special license.

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Speaker 1: So another proposal is just to make it easier to

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Speaker 1: obtain abortion pills. Is that an easy fix? I'm not

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Speaker 1: certainly an easier fix. It won't obviously address all of

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Speaker 1: the kinds of things that we see Red States planning

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Speaker 1: to do in the aftermath of Rugby Wad being overturned.

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Speaker 1: But I think for many supporters of abortion rights, the

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Speaker 1: additional restrictions on access to abortion medication are not warranted

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Speaker 1: based on existing evidence, and they do make abortion medication

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Speaker 1: harder to get. I think, obviously, in states that will

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Speaker 1: seek to criminalize abortion medication, that's only a piece of

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Speaker 1: a bigger picture. But I think it's certainly something that

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Speaker 1: I think abortion rights supporters will see it to be overdue.

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Speaker 1: The states that want to criminalize abortion pills, how do

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Speaker 1: you think they'll go about that. Likely what we're going

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Speaker 1: to see there's some combination of kind of bounty schemes

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Speaker 1: like we've seen with Texas spate, or states incentivized people

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Speaker 1: or potentially even require people to report when they have

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Speaker 1: evidence of an abortion taking place, or we're likely to

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Speaker 1: see lots of cyber surveillance. There are lots of ways

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Speaker 1: that government can access your online data, whether that's someone

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Speaker 1: who's searched on Google for abortion, or someone's cell phone

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Speaker 1: location data if they've traveled for an abortion period, tracker apps,

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Speaker 1: and so on, which is why you've seen some proposals

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Speaker 1: from Democrats to focus on digital privacy, because of course

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Speaker 1: digital privacy concerns would affect those speaking abortions, but potentially

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Speaker 1: many others as well. If states are trying to figure

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Speaker 1: out who's having abortions, they may be surveying people of

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Speaker 1: reproductive age, or even just people who are researching abortion.

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Speaker 1: One proposal was that the administration asked the Federal Trade

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Speaker 1: Commission to push makers of the apps that track menstrual

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Speaker 1: cycles to warn users that the data could be used

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Speaker 1: to identify women in the early stages of pregnancy, so

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Speaker 1: that data isn't protected. It's complicated, right. The Supreme Court

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Speaker 1: has said recently that some of your digital data are

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Speaker 1: available only when the police get a warrant. So, for example,

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Speaker 1: the information in your cell phone, the kind of like

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Speaker 1: GPS feature that tells people where you are or paying

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Speaker 1: certain powers, the law enforcement does need a warrant to

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Speaker 1: get that, although it's not clear exactly how broadly that

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Speaker 1: kind of ruling will apply. We also know though that

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Speaker 1: quite often law enforcement can buy lots of data on

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Speaker 1: the open market from apps and other digital service providers

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Speaker 1: the same way anyone else can, and without a warrant. Right.

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Speaker 1: So one of the reasons this kind of notice is

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Speaker 1: something that Biden administration is pushing for us because people

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Speaker 1: just don't know that this is a situation where there

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Speaker 1: are steps people could take to protect their online privacy,

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Speaker 1: but they don't know that there's anything they need to do.

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Speaker 1: They don't know this kind of information is being tracked.

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Speaker 1: And whether this kind of notification would be effective, I

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Speaker 1: think remains an open question, but it would be at

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Speaker 1: least a good first step to let people know this

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Speaker 1: is something they actually need to be concerned. There have

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Speaker 1: been cases of medical workers already in Texas reporting people

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Speaker 1: they sis back to having an abortion. So there's also

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Speaker 1: a suggestion of the Biden administration issuing tougher hippa guidance

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Speaker 1: to prevent that from happening. That's absolutely a concern because

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Speaker 1: I mean one of the things. Of course, anyone could

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Speaker 1: be that kind of reporter. States could mandate reporting from

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Speaker 1: a variety of other individuals. Other people could find out

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Speaker 1: someone was having an abortion, but as you can imagine,

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Speaker 1: hippo guidance would be especially significant because medical professionals are

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Speaker 1: more likely to know if someone said an abortion than

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Speaker 1: other people would, because you know, when people have post

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Speaker 1: abortion complications or really any kind of post pregnancy complications,

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Speaker 1: medical professionals are going to be on the front line

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Speaker 1: of dealing with that and would therefore be people who

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Speaker 1: would be in a better position to report on someone

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Speaker 1: they think was having an abortion. So better hippo guidelines

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Speaker 1: might prevent that from happening. There's also a suggestion of

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Speaker 1: using federal funds to help ay travel and lodging costs

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Speaker 1: for poor women who are crossing state lines to get

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Speaker 1: an abortion. So that's obviously one of the biggest barriers.

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Speaker 1: Of course, assuming that states allow people to travel out

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Speaker 1: of state for abortion without effectively shutting down abortion providers.

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Speaker 1: Assuming that happens, then it would be important for people

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Speaker 1: as the ability to pay right. The challenge there is

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Speaker 1: There will again probably be legal challenges primarily based on

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Speaker 1: the High Amendment. So some people will say the High

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Speaker 1: Amendment is narrow, it's just about medicaid reimbursement for abortion.

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Speaker 1: Others will point to language in the affordable character of

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Speaker 1: the High Amendment, essentially saying, you know, differing the cost

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Speaker 1: of abortion is panamount to pay for abortion, and that

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Speaker 1: various aspects of federal law make that impossible. Again, I

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Speaker 1: don't know how that kind of federal challenge will go,

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Speaker 1: but we would again expect to see litigation about that.

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Speaker 1: There is a theory that states will attempt to criminalize

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Speaker 1: traveling for the purpose of getting an abortion. I mean,

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Speaker 1: I don't understand what the Interstate Commerce rles how they

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Speaker 1: could enforce that. I think it would have to be

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Speaker 1: kind of incidental that they would find out. I mean,

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Speaker 1: there's the two aspects of the enforced one question, right,

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Speaker 1: there's the practical like how would they know? And then

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Speaker 1: there's the kind of constitutional And on the constitutional front,

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Speaker 1: the answer is just that states are well aware that

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Speaker 1: the law is really underdeveloped in these areas, and so

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Speaker 1: they don't know what the Supreme Court is going to say,

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Speaker 1: but they're willing to roll the dice, especially because they

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Speaker 1: believe the Supreme Court is is conservative, which is true,

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Speaker 1: and that they believe the Court is uniquely unsympathetic to abortion,

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Speaker 1: which is likely also true. So I think there's enough

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Speaker 1: of a legal gray area here that states are willing

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Speaker 1: to test the waters. I also just wonder how much

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Speaker 1: states are willing to spend on this effort to stop

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Speaker 1: people from getting abortions even outside their state. Yeah. I

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Speaker 1: think the other concern I think for people who are

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Speaker 1: opposed to abortion would have to be that it will

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Speaker 1: ultimately be ineffective, because we've seen, for example, of recently,

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Speaker 1: the Gutmaker Institute released a report showing that the abortion

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Speaker 1: rate in the past several years had actually increased for

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Speaker 1: the first time in three decades. And the explanation was

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Speaker 1: not that states have been passing fewer restrictions in that period.

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Speaker 1: They had been passing lots of restrictions. It was a

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Speaker 1: combination of Blue states stepping up medicaid funding for abortion

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Speaker 1: in their states and family planning funding being cut, and

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Speaker 1: so I think one thing we'll see conservative states realizing

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Speaker 1: is that even when they implement draconian penalties, there's going

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Speaker 1: to be kind of only a marginal effect because they've

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Speaker 1: already limited access to abortion so much. And ironically, I

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Speaker 1: think you see anti abortion groups in blue states saying

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Speaker 1: we need to focus more on poverty reduction and paid

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Speaker 1: family leave and essentially the people who are having abortions,

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Speaker 1: who might prefer to carry a pregnancy to term if

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Speaker 1: they had better life circumstances. That's not everyone having abortion,

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Speaker 1: but they're certainly a subset of people. But I imagine

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Speaker 1: Red states are not going to do that, and they

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Speaker 1: may be kind of constantly chasing more draconian enforcement mechanisms

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Speaker 1: in a way that will ultimately have diminishing returns. Right,

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Speaker 1: I don't think that they're going to be able to

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Speaker 1: prevent people entirely, especially given the difficulty of discovering who

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Speaker 1: if there is not even having an abortion in the

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Speaker 1: first place. There's one suggestion at leasing federal land or

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Speaker 1: using federal areas like military bases in states that criminalize

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Speaker 1: abortion for abortion clinics. That might work, but I just

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Speaker 1: don't know if the Biden administration would be willing to

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Speaker 1: do that. I mean, there's the political will question. There's

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Speaker 1: also questions about whether that would potentially run up against

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Speaker 1: limits on federal financial support for abortion. Again, I think

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Speaker 1: you can argue that it's distinguishable from the High Amendment

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Speaker 1: because it's not a part of the medicaid program. But

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Speaker 1: I imagine that you would see challenges to that as well.

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Speaker 1: There's criticism of the Biden administration for not doing anything,

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Speaker 1: not moving fast. I think people in the Biden administrations

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Speaker 1: probably would say that most of the options they have

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Speaker 1: available to them are legally ambiguous, right, There no slam dunks.

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Speaker 1: I think for people in the abortion rights movement, there's

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Speaker 1: the sense that the Biden administration doesn't care about this

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Speaker 1: issue and doesn't think, you know, that it's important enough

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Speaker 1: unless there's an absolute political imperative to deal with it immediately.

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Speaker 1: So I think it's fair to say that the Biden

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Speaker 1: administration hasn't handled this in a way that would diffuse

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Speaker 1: criticism from the abortion rights movement, even if there are,

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Speaker 1: you know, valid reasons to be concerned that some of

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Speaker 1: the strategies may not be ultimately successful. Is there one

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Speaker 1: thing that stands out to you as most doable and effective,

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Speaker 1: and I think digital privacy is really important. I also

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Speaker 1: can't imagine that would be anything but a winner for

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Speaker 1: the Biden administration because, of course, as you can imagine,

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Speaker 1: if states are trying to enforce these laws, they're going

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Speaker 1: to sweep in a lot of people who are not

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Speaker 1: seeking abortions. So I think that's very important. It's also

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Speaker 1: important just to the ability of states to actually punish people.

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Speaker 1: I think the f d A s taking further steps

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Speaker 1: on abortion medication is also key, and I think the

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Speaker 1: Justice is teeing up an effort to litigate should states

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Speaker 1: actually try I to indict or sue doctors and Blue

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Speaker 1: states who are performing abortions in Blue states. The Biden

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Speaker 1: administration Justice Department should be at the front lines of

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Speaker 1: efforts to stop that. So those are all I think

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Speaker 1: important steps. So you think that red states will sue

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Speaker 1: doctors in blue states who are doing abortions, what with

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Speaker 1: the ground, I think what we're gonna see the red

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Speaker 1: states essentially saying if someone from a red state comes

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Speaker 1: to a blue state and has an abortion, we either

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Speaker 1: red state are going to assert that we can criminally

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Speaker 1: prosecute that doctor, or authorize a lawsuit against that doctor

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Speaker 1: because the person seeking an abortion is from our state

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Speaker 1: and they were violating our laws. I don't necessarily think

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Speaker 1: that will work, But again, we're dealing with gray areas

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Speaker 1: because choice of law doctrines not very well developed. These

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Speaker 1: constitutional doctrines aren't very well developed, and so you'll see

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Speaker 1: some red states rolling the dice on that, and I

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Speaker 1: imagine that Justice Department will be involved in trying to

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Speaker 1: beat back that effort. Thanks Mary. That's professor Mary Orf

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Speaker 1: U C. Davis Law School. Now that the Supreme Court

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Speaker 1: has wiped out the constitutional right to abortion and the

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Speaker 1: battle over abortion rights have shifted to the states and

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Speaker 1: state courts in particular, there have been a flurry of

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Speaker 1: lawsuits over state abortion bands, focusing on state constitutions in

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Speaker 1: at least eleven states. One of those states is Wisconsin,

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Speaker 1: where Democratic Governor Tony Evers vowed to fight over an

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Speaker 1: anti abortion law on the books for more than one

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Speaker 1: hundred seventy years that's now technically the law. Again, I

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Speaker 1: don't think that a law that was written before the

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Speaker 1: Civil War or before women secured the right to vote,

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Speaker 1: should be used to dictate these intimate decisions on reproductive

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Speaker 1: health and abortion rights. Activists did win temporary rulings allowing

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Speaker 1: abortions to resume in Louisiana, Texas, and Utah. I emphasized

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Speaker 1: the word temporary because the full hearings are yet to come.

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Speaker 1: Joining me is Neil Devans, a professor at William and

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Speaker 1: Mary Law School. I want to start with just a

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Speaker 1: general question. Does a state supreme court have the power

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Speaker 1: to provide more protections for individual rights? Absolutely? State supreme

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Speaker 1: court over the years have been the first to recognize

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Speaker 1: rights such as interracial marriage, same sex marriage, Miranda, warning,

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Speaker 1: search and seizure protections all come from state supreme court decisions.

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Speaker 1: The states can provide protections beyond that which the federal

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Speaker 1: Constitution provides. So now we have lawyers, you know, trying

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Speaker 1: to dissect state constitutions and statutes to see if they

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Speaker 1: can save abortion rights through state supreme courts. I think

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Speaker 1: state supreme courts are very much creatures of the dominant

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Speaker 1: state political culture as opposed to entities that are going

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Speaker 1: to rule against what lawmakers and voters in the state prefer.

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Speaker 1: So if you look at the states that have the

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Speaker 1: trigger bands with their team, states that have the trigger

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Speaker 1: laws that are now going into effect. Abortion is not

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Speaker 1: politically popular in those states. The state political establishment opposes

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Speaker 1: doesn't support abortion. These state supreme court justices are very

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Speaker 1: much a part of that establishment. They stand for election

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Speaker 1: in most states, not open about three quarters of the states,

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Speaker 1: and they're subject to popular checks like Volder initiatives. And

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Speaker 1: as a result, you rarely see state supreme courts playing

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Speaker 1: a sort of path breaking role. So red states are

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Speaker 1: likely to back red state values and blue states are

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Speaker 1: likely back blue state values. You point to an Iowa

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Speaker 1: Supreme Court decision, tell us about that. Sure. In Iowa,

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Speaker 1: which is the state that has gone back and forth

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Speaker 1: between Democratic and Republican party control, is what it's known

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Speaker 1: as a purple state. You know, it leans on the

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Speaker 1: conservative side. So the Oiowa Supreme courts, when there was

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Speaker 1: the majority of Democratic Supreme Court justices, found in the

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Speaker 1: state constitution a constitutional right to abortion. The governor and

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Speaker 1: legislature had changed by the time that decision was rendered

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Speaker 1: and they no longer were supportive of that decision. So

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Speaker 1: when the Democratic court found the constitutional right, the Republican

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Speaker 1: political establishment, which controlled the governor's office and the state

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Speaker 1: legislature changed this system by which state justices were selected,

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Speaker 1: and several justices terms were ending. State Supreme Court justices

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Speaker 1: don't serve life terms. They have terms of office, mandatory retirement,

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Speaker 1: and other such limitations. In any event, the new Republican

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Speaker 1: governor was able to appoint the majority of justices on

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Speaker 1: the Iowa Supreme Court, and the Iowa Supreme courts followed

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Speaker 1: the lead of the Iowa political establishment and overturned that

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Speaker 1: earlier decision and said that they no longer was a

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Speaker 1: constitutional right to abortion under the Iowa state concerts. So

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Speaker 1: how did they reason that? Did they do what the

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Speaker 1: Supreme Court didn't say, we're reversing President. Yes, they said

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Speaker 1: that the earlier decision did not take into account future

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Speaker 1: life in ways that it should have, and that the

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Speaker 1: earlier court had overstepped its authority and finding a constitutional

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Speaker 1: right to abortion. Did Florida's governor Descantists do something similar

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Speaker 1: in Florida? So in Florida, Governor to Stantists also was

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Speaker 1: able to transform the Supreme Court thanks to justice terms

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Speaker 1: of office ending. He was able to appoint three new

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Speaker 1: justices to the state Supreme Court when he became governor,

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Speaker 1: and the state Supreme Court has already overturned a death

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Speaker 1: penalty decision limiting constitutional protections for those subject to the

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Speaker 1: death penalty. And it's expected that Florida, where in earlier

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Speaker 1: Supreme court that was dominated by Democratic appointees, had found

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Speaker 1: the constitutional right to abortion, it's anticipated that the new

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Speaker 1: Supreme Court is going to overturn that decision and uphold

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Speaker 1: Florida's van I think it's a fifteen week ban on abortion,

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Speaker 1: So that's expected. Whether that happens or not, of course,

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Speaker 1: remains to be seen, but it would be in keeping

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Speaker 1: with what we've seen in states like Iowa. Now in

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Speaker 1: Kansas there's a democratic governor and the Supreme Court is

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Speaker 1: dominated by Democratic appointees, and yet that didn't help. Oh,

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Speaker 1: it definitely did help in Kansas. In Kansas, the decision

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Speaker 1: to find the concerts whod to abortion is on the

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Speaker 1: ballot this summer. There's a voter initiative at the state legislature,

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Speaker 1: which is Republican dominated, put on the ballot, but the

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Speaker 1: voters may turn down that initiative, so the decision of

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Speaker 1: the Kansas Supreme Court may be approved or rejected by

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Speaker 1: the voters. What Kansas shows is that even in a

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Speaker 1: state like Kansas with the democratic governor and the democratic

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Speaker 1: Supreme Court, which will protect the right against legislation, to

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Speaker 1: protect the right in terms of what's within the authority

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Speaker 1: of the Supreme Court to find that even there there

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Speaker 1: is the possibility that the initiative process will result in

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Speaker 1: the overturning of the decision. That may not happen, but

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Speaker 1: it may happen, and if it happens, of course it

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Speaker 1: sents a very strong message. But even if it doesn't happen,

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Speaker 1: it says that in those states where abortion is most vulnerable,

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Speaker 1: in the red states that are seeking to eliminate abortion

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Speaker 1: r al together, that the dominant political culture is still

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Speaker 1: likely to prevail. It's just not necessarily the dominant political

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Speaker 1: culture in hands as never makes to be seen. So

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Speaker 1: we've seen cases. The Supreme Court says to the effect, well,

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Speaker 1: this is really a decision for Congress, not for us,

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Speaker 1: knowing that what Congress is like now, it's very hard

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Speaker 1: to get anything through Congress, and Reret Kavanaugh says, well,

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Speaker 1: you can go to the state constitution and the state

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Speaker 1: constitutional law to find relief from this. It's very hollow.

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Speaker 1: That's what he said, is its confirmation hearing and to

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Speaker 1: the at that state supreme courts reflect the dominant culture.

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Speaker 1: In the states where the dominant culture opposes the right,

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Speaker 1: where the rights and greatest need of protection is the

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Speaker 1: least likely placed that the right will be protected by

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Speaker 1: the state political establishment of the state supreme court. So

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Speaker 1: I think what now Justice Captain Law had in mind

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Speaker 1: a system whereby state supreme courts would take issue with

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Speaker 1: state law and uphold rights find right. The experiences of

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Speaker 1: Iowa and what's likely to happen in Florida and what

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Speaker 1: I expect is going to happen in in other red

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Speaker 1: states is going to suggest that, you know, if the

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Speaker 1: right is vulnerable to political attack, actually the state supreme

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Speaker 1: court is probably not the place to go to get relief.

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Speaker 1: Suppose some states attempt to criminalize giving an abortion. Might

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Speaker 1: that be an area where it would be different at

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Speaker 1: state supreme courts if they try to criminalize it. So

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Speaker 1: there is the question as to whether some types of

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Speaker 1: scientions might be ones that the state supreme court it's

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Speaker 1: likely to protect the individual. But again I think if

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Speaker 1: you have the measure that has popular political support from

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Speaker 1: the political establishment, the state supreme court is likely to

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Speaker 1: follow suit. And in terms of prosecutions of women seeking

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Speaker 1: to determinate their pregnancies. I per several strong provife governors

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Speaker 1: who have turners, like the South Dakota governors, say that

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Speaker 1: there would never be a prosecution in the South Dakota

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Speaker 1: at least, and presumably this would hold true in other

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Speaker 1: states with abortion bands against the women themselves. So it's

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Speaker 1: probably the case that that prosecution wouldn't happen in the

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Speaker 1: first instance. But if it were to happen, I guess

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Speaker 1: I would say if it was truly supported by the

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Speaker 1: state political establishment, the state supreme court more likely than

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Speaker 1: not would back the state political establishment. What about prosecutions

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Speaker 1: of doctors involved an abortion. Is that different? Well, I

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Speaker 1: think at least the signal is by the Republican governor

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Speaker 1: and attorneys general in states that have the figure was

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Speaker 1: that they would prosecute the doctors, And my guess is

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Speaker 1: that the state supreme court would conclude that if there's

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Speaker 1: no right to terminate a pregnancy, the doctor is violating

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Speaker 1: state were on the way that would be subject to

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Speaker 1: criminal sanctions. So I think that's very much a possibility,

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Speaker 1: and whether we see that happen or not remains to

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Speaker 1: be seen. By it's at least a theoretical possibility. But

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Speaker 1: I'm just wondering, you know, with with the medication abortion

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Speaker 1: the abortion pills, the federal government is going to try

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Speaker 1: to protect them, but can they do that if the

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Speaker 1: state wants to outlaw medication abortions. So this is very

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Speaker 1: complex and I don't think you know the answer yet.

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Speaker 1: It's possible that makers of these pills would be able

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Speaker 1: to send them in the mail across the lines, but

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Speaker 1: it's also possible that the state can say that they're

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Speaker 1: taking the pill violates state law. So how the state

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Speaker 1: threads that needle and how the court approaches those cases

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Speaker 1: this remains to be seen. But there's something else to

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Speaker 1: be said about that, which is, if it's something within

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Speaker 1: the control, say of the FETTL Executive through the FDA,

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Speaker 1: then you wonder whether Congress can will pass legislation relevant

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Speaker 1: to whether the FDA can authorize the across state lines

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Speaker 1: of the abortion pill, and also wonder whether it's something

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Speaker 1: that will change from administration to administration, like what you've

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Speaker 1: seen with so many other federal initiatives regarding abortion, that

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Speaker 1: Republican presidents impose restrictions and limit the right Democratic presidents

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Speaker 1: with restrictions and protect the right. Whether we're going to

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Speaker 1: see that pattern where who is sitting in the White

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Speaker 1: House will define whether the pill is success. We are

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Speaker 1: not accessible across state lines. This decision just throws a

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Speaker 1: monkey wrench into everything, and it's going to make you know,

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Speaker 1: the battlegrounds between the states. Do you think the five

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Speaker 1: Supreme Court justices envisioned the nightmare that this decision would create.

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Speaker 1: I don't know what they had in mind. I think

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Speaker 1: what we're seeing now is highly predictable, and I don't

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Speaker 1: know what Justice Cabin always thinking. For example, when he

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Speaker 1: follows his concurring opinions saying essentially that you know, this

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Speaker 1: is the decision that does away with roversus weight and

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Speaker 1: how the Court is out of the business of abortion,

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Speaker 1: and the political process will decide some of the questions

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Speaker 1: you asked me about the abortion pill, for example, our

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Speaker 1: questions that might likely work their way into court. There

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Speaker 1: might be First Amendment issues regarding limitations on what doctors

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Speaker 1: can say to women in space to have abortion bands,

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Speaker 1: and their whole range of issues that are likely to

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Speaker 1: come before the worth, state and federal not to mention,

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Speaker 1: of course, all the political chaos. So what Justice Kavano

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Speaker 1: had in mind, as articulated in his opinion, doesn't make

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Speaker 1: sense what the other justices were thinking. I don't know,

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Speaker 1: but I think it's highly foreseeable, uh, particularly given everything

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Speaker 1: that happened after the week, the death threats on the justices.

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Speaker 1: I think it's highly predictable that what is happening would

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Speaker 1: be happening. And if they didn't foresee it, I don't

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Speaker 1: know where they were living, because they weren't looking outside

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Speaker 1: the door of the protesters at their very homes. So finally,

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Speaker 1: a lot of people are saying that this decision diminishes

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Speaker 1: the court. It, you know, takes away from the court

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Speaker 1: as an institution because people are losing faith in the court.

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Speaker 1: Do you agree with that? I think in the short run,

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Speaker 1: it feeds into the notion that the court is the

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Speaker 1: mouthpiece of the political party in charge of uh the

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Speaker 1: appointment and confirmation of the justices, and that is not

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Speaker 1: healthy for the court. Whether that's the long view obviously

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Speaker 1: remains to be seen. But in the short run, it

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Speaker 1: seems that it is hurting the Court's reputation as a

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Speaker 1: neutral arbitrre in legal disputes. That seems to be certain.

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Speaker 1: Thanks Neil. That's Neil Devon's a professor at William and

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Speaker 1: Mary Law School. And that's it for this edition of

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Speaker 1: The Bloomberg Law Show. Remember you can always get the

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Speaker 1: latest legal news Honor Bloomberg Law Podcast. You can find

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Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg

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Speaker 1: dot com, slash podcast, Slash Law, and remember to tune

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Speaker 1: into The Bloomberg Law Show every week night at ten

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Speaker 1: BM Wall Street Time. I'm June Grosso and you're listening

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Speaker 1: to Bloomberg