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

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Speaker 1: Jonathan Mitchell is something of a hero among conservatives in Texas.

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Speaker 1: He was the lawyer behind that state strict abortion law

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Speaker 1: that used an inventive tactic allowing private citizens to seek

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Speaker 1: ten thousand dollar bounties on anyone who helps a woman

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Speaker 1: get an abortion. Here's Mitchell on the show Washington Watch

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Speaker 1: in April touting how the law prevents abortion providers from

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Speaker 1: taking their cases to federal court. We had to change

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Speaker 1: the tactics that we were using and do more to

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Speaker 1: just box out the federal judiciary from eating having jurisdiction

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Speaker 1: to consider the cases. And that's what Texas did. Now

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Speaker 1: Mitchell has set his sights on another culture war issue,

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Speaker 1: this time targeting gay rights by making it harder to

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Speaker 1: get life saving drugs to prevent HIV. Joining me is

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Speaker 1: Bloomberg Legal reporter Eric Larson, who talked to Mitchell tell

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Speaker 1: us who Jonathan and Mitchell is so. Jonathan Mitchell is

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Speaker 1: the Republican former solicitor General of Texas, so he's well

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Speaker 1: known in conservative circles. He's been involved in a lot

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Speaker 1: of high profile lawsuits, and he's also known in Texas

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Speaker 1: and I guess nationally for helping write part of s

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Speaker 1: B eight, which is a Texas law that was controversial

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Speaker 1: as an anti abortion law ban abortion matter six weeks,

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Speaker 1: and his contribution was to create the enforcement mechanism for

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Speaker 1: allowing private citizens to seek ten thousand dollar bounties on

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Speaker 1: people suspected of violating that law. So he's worked closely

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Speaker 1: with the Republican lawmakers there in Texas and also National

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Speaker 1: Legal Group. So now he's setting his sights on HIV drugs. Yeah,

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Speaker 1: you know, he actually filed a lawsuit back in over this,

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Speaker 1: but it's just now sort of moving ahead here. But

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Speaker 1: there was a hearing in federal court in Fort Worth,

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Speaker 1: Texas on his motion for summary judgment and the government's

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Speaker 1: cross motion for summary judgment in his case in which

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Speaker 1: he's trying to overturn a provision of the Affordable Care

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Speaker 1: Act for preventive services. So his lawsuit takes aim really

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Speaker 1: at the entire preventive services mechanism with it covers a

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Speaker 1: wide range of things from polio vaccines to pre screenings

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Speaker 1: for pregnant women and children, to screenings for cancer, all

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Speaker 1: kinds of preventive services that are covered in no cost

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Speaker 1: under the Affordable Care Act. But in the lawsuit he

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Speaker 1: takes specific aims at a drug called PREP which prevents

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Speaker 1: HIV infection, sort of a groundbreaking drug that was created

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Speaker 1: about a decade ago that had helped reduce the spread

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Speaker 1: of HIV and as of last year, has been added

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Speaker 1: to that preventive services list. So he's also taking aim

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Speaker 1: specifically a PREP under the Religious Freedom Restoration Act. Why

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Speaker 1: is he aiming at this drug that's life saving? His

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Speaker 1: clients are a few Christian owned companies and some individuals

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Speaker 1: who are Christian who say that the Preventive Services Provision

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Speaker 1: and the Affordable Care Act, because PRESS is covered in

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Speaker 1: this they believe that buying a healthcare plan or offering

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Speaker 1: a healthcare plan required to cover this drug and no

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Speaker 1: cost makes them complicit in what they say is homosexual

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Speaker 1: behavior and that it violates their religious freedom. He's going

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Speaker 1: with more than that one argument based on religious rights.

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Speaker 1: There are several claims in the complaints, and one of them,

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Speaker 1: as they mentioned, the Religious freedom PLIM, takes specific aim

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Speaker 1: at PREPP. But the other claims say that the entire

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Speaker 1: Preventive Services Provision is unconstitutional because the medical experts that

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Speaker 1: create the list of everything that's covered under it are

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Speaker 1: not properly confirmed by the Senate. He says that they

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Speaker 1: have so much power and so much authority over these

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Speaker 1: plans and what it is and isn't covered, that the

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Speaker 1: list should only be created by someone who's confirmed by

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Speaker 1: the Senate. They argued that violate the constitution um the

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Speaker 1: Appointments clause by give too much power to an unconfirmed official.

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Speaker 1: Is that the real fight or is it a fight

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Speaker 1: against contraception and treatments for transgender people as well as

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Speaker 1: these HIV drugs. Well, it really is a two pronged

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Speaker 1: attack here. There. They are trying to these plaintiffs and

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Speaker 1: their lawyer are trying to overturn the entire preventive services mandate.

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Speaker 1: But theoretically they can lose on that but still win

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Speaker 1: on this claim specifically taking aim at prep um. But

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Speaker 1: even though they don't have a religious objection or moral

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Speaker 1: objection to all of those other preventive services, they want

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Speaker 1: that to go away because they you know, they say

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Speaker 1: that the list isn't created by someone who's confirmed by

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Speaker 1: the Senate, but also they argue that it makes the

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Speaker 1: plans too expensive, you know, spreading around the cost of

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Speaker 1: all these preventative services. Of course, the idea the government

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Speaker 1: says this list, um these preventive services are read, but

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Speaker 1: that they will save money down the road by preventing

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Speaker 1: serious illnesses that could cost a lot more money down

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Speaker 1: the road. And by the way, they make the same

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Speaker 1: argument about PREP that it is a relatively low cost

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Speaker 1: drug taking daily that can prevent serious illnesses that end

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Speaker 1: up costing a lot more money down the road. Um,

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Speaker 1: if someone contracts HIV so and as you mentioned, contraception

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Speaker 1: currently that is not that was part of the original lawsuit. Um,

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Speaker 1: it currently is not part of it. But they're going

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Speaker 1: to probably added back on. But yes, they have a

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Speaker 1: religious objection to contraception and they're aiming to get that

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Speaker 1: taken taken off as well. So it potentially could have

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Speaker 1: pretty far reaching impacts with lawsuits. Is Mitchell just a

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Speaker 1: lawyer representing his clients who happened to be conservative Christians

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Speaker 1: or is he a true believer? I guess I would

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Speaker 1: say it's a little bit of both. He seems to

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Speaker 1: be a true believer clearly in the conservative cause of

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Speaker 1: reducing sort of the power hour and the reach of

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Speaker 1: government and things like that. I did not get the

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Speaker 1: impression that he was pushing that the particular religious agenda himself.

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Speaker 1: He really did portray it as him taking on these

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Speaker 1: clients who had these beliefs. But it is worth noting

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Speaker 1: that he is working on a lot of these cases

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Speaker 1: that have a similar theme of trying to rein in

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Speaker 1: the reach of protections for the LGBTQ community, particularly after

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Speaker 1: the Supreme Court's landmark bus Stock ruling that prohibited discrimination

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Speaker 1: against LGBTQ people. They have several laws, these pennings in

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Speaker 1: other cases that are trying to have a religious carve

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Speaker 1: out for those in various ways. And he's also affiliated

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Speaker 1: with an organization called America First Legal, which of course

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Speaker 1: was set up by some former Trump administration folks like

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Speaker 1: Steve Miller and Mark Meadows sort of become the conservative

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Speaker 1: answer to the a c l U and filed these

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Speaker 1: lawsuits against the Biden administration trying to wave off these

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Speaker 1: progressive rules and laws. And the judge Mitchell filed this

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Speaker 1: case with is one of the most conservative judges in

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Speaker 1: the country. That is correct, he Um is the same

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Speaker 1: judge who ruled that the Affordable Cares unconstitutional back in

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Speaker 1: two thousand eighteen, before that went to the Supreme Court um,

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Speaker 1: and of course the Supreme Court for a second time

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Speaker 1: upheld it. I think it's safe to saying that he

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Speaker 1: leans towards seeing it from the side of you, of

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Speaker 1: the Republicans who often find themselves before his court. Thanks

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Speaker 1: so much, Eric, that's Bloomberg Legal reporter Eric Larson. It

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Speaker 1: was the first time abortion rights were on the ballot

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Speaker 1: since the Supreme Court struck down Roe v. Wade and

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Speaker 1: a woman's constitutional right to abortion, and voters overwhelmingly back

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Speaker 1: to measure protecting abortion rights in Kansas, a truly read state.

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Speaker 1: Donald Trump won near by fifteen points and there are

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Speaker 1: three d fifty thousand more registered Republicans than Democrats. But

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Speaker 1: last night's vote wasn't even close. Turnout was huge, with

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Speaker 1: nine hundred thousand people showing up to vote on a

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Speaker 1: Tuesday in the middle of August. President Biden hail the

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Speaker 1: Kansas vote the voters of cases in a powerful signum

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Speaker 1: at this fall, the American people will vote to preserve

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Speaker 1: and protect the right and refuse to let them be

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Speaker 1: ripped away by politicians. In a decisive vote, and the

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Speaker 1: decisive victory, voters made it clear that the politicians should

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Speaker 1: not interfere with the fundamental rights of women. The President

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Speaker 1: also signed an executive order yesterday that lays the groundwork

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Speaker 1: for medicaid to help women seeking abortions travel between states

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Speaker 1: to obtain access to the procedure. Executive order to make

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Speaker 1: sure healthcare providers comply with federal laws the women don't

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Speaker 1: face two lays or denials of medically necessary care. Joining

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Speaker 1: me is reproductive rights expert Mary Ziegler, a professor at

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Speaker 1: u C. Davis Law School, the first time abortion was

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Speaker 1: directly on a US ballot since the Supreme Courts Dobbs decision,

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Speaker 1: what does it mean that it won so overwhelmingly. I mean,

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Speaker 1: I think that it goes to show that one that

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Speaker 1: the polling before Dobbs was accurate in the sense that

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Speaker 1: most Americans wanted to maintain abortion rights, and also that

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Speaker 1: those polls don't always track the partisan lean in the state.

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Speaker 1: So you may have states that are going to continue

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Speaker 1: to vote for Republicans but that don't want to have

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Speaker 1: bounds on abortion. So I think it's an important reminder

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Speaker 1: that we sometimes have to disaggregate partisanship and views on abortion.

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Speaker 1: There's not always no perfect correlation and more Republicans voted

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Speaker 1: in the primary than Democrats. It was expected that more

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Speaker 1: Republicans would vote than Democrats. That was why they scheduled

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Speaker 1: the vote during the primary. What was surprising was that

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Speaker 1: so many Republicans voted no on the amendment. So let's

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Speaker 1: talk about President Biden signed a new executive order meant

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Speaker 1: to safeguard abortion rights. But is this just window dressing

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Speaker 1: symbolic it's another order studying what can be done. Yeah,

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Speaker 1: I mean there's definitely a lot. It's not really window

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Speaker 1: addressing entirely. Um. I think it's more Um, you know,

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Speaker 1: we've seen the Biden administration, to be fair to the

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Speaker 1: Biden administration actually putting teeth into, you know, into its initiatives,

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Speaker 1: and so I think it's too it's too soon to

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Speaker 1: say if it's just window dressing, given that there actually

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Speaker 1: has been some enforcement, but it's too early to know

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Speaker 1: exactly what that's going to look like. Is there anything

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Speaker 1: else the president can do right now? There are lots

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Speaker 1: of things the president can do. It's more just and

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Speaker 1: I mean by the president, I mean the Biden administration

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Speaker 1: broadly speaking, like the Department of Justice, not just Biden himself.

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Speaker 1: I think that Obviously, the Biden administrations has been risk

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Speaker 1: averse in terms of pursuing strategies that may not work legally,

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Speaker 1: and I think that's really the chan lenge for the administration.

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Speaker 1: You know, how much risk they're willing to assume, They're

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Speaker 1: definitely steps that are available. The Justice Department is suing

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Speaker 1: Idaho over this restrictive abortion law that makes it a

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Speaker 1: felony to perform an abortion in all but very narrow circumstances.

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Speaker 1: So the Biden administration has taken the position that the

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Speaker 1: Emergency Medical Treatment and Labor Act CREEMPS state laws that

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Speaker 1: have very narrow exceptions for the life or fults of

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Speaker 1: the mother, and Idaho has an unusually narrow medical emergency exemption.

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Speaker 1: So the Biden administration's position is one that this law

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Speaker 1: and PAULA prescribes the standard of care for doctors treating

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Speaker 1: patients who are in labor, and to that any state

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Speaker 1: law that has a narrower definition of medical emergency is

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Speaker 1: basically blocked by that federal law. So we've seen variations

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Speaker 1: of this. Actually, Texas is suing the Biden administration saying

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Speaker 1: essentially that its position on IMPALA is wrong, and the

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Speaker 1: Texas is free to have whatever emergency exceptions it wants,

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Speaker 1: including none at all. The Biden administration is now going

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Speaker 1: on the offensive, saying essentially that Idaho's law does violate

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Speaker 1: the supremacy Clause of the Constitution because it conflicts with

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Speaker 1: a federal statute on a version. Attorney General Garland said,

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Speaker 1: the supremacy clause is a decision made in the Constitution

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Speaker 1: of the United States. Federal law invalidate state laws that

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Speaker 1: are in direct contradiction. Is the Justice Department on solid

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Speaker 1: ground here, I mean it's it's going to be disputed. Um,

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Speaker 1: we have a preview of from Texas suit. Texas has

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Speaker 1: taken the position essentially that MTALA doesn't actually tell doctors

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Speaker 1: what they need to do in terms of caring for

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Speaker 1: patients and pologists, by by way of background, was designed

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Speaker 1: to stop the practice of patient dumping. So essentially, low

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Speaker 1: incompatients would show up at the hospital at the emergency

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Speaker 1: room with like a knife in their back or and labor,

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Speaker 1: and doctors would find out they didn't have insurance or

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Speaker 1: the ability to pay, and they would transfer them other hospitals,

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Speaker 1: and frequently that will result in increased morbidity and mortality

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Speaker 1: for those patients. Texas' position essentially is that and Taula

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Speaker 1: was never intended to improve the standard of care for patients,

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Speaker 1: and relatedly that the exceptions that are carved out in

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Speaker 1: and Tallah the definition of emergency would make as Texas

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Speaker 1: puts it a hospital into an abortion clinic. It's really

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Speaker 1: not clear to me that the exceptions are very broadly drawn.

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Speaker 1: But that's Texas this argument. I think the Justice Department's

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Speaker 1: argument is strong, But you know, and Tala doesn't explicitly

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Speaker 1: say that it lays out a new standard of care

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Speaker 1: for patients, and you're dealing ultimately with what the judiciary

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Speaker 1: is going to say about this, and we know that

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Speaker 1: the judiciary has been pretty hostile to a worship rights

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Speaker 1: in recent months and years, so that that of course

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Speaker 1: has to be factored into the calculation as well. Why

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Speaker 1: Idaho aren't there other states where abortion bands are just

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Speaker 1: as tough or as Idaho's with the criminal element of it,

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Speaker 1: where a physician can be prosecuted just by showing an

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Speaker 1: abortion has been performed, and then the physician has to

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Speaker 1: defend in court to show that he or she is

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Speaker 1: within the narrow exception. I mean, I think that why

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Speaker 1: Idaho is an interesting question. I mean, I don't I

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Speaker 1: don't know. Um, I think one, As I mentioned, Idaho

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Speaker 1: has a very narrow exception, so it does not have

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Speaker 1: any kind of exception beyond the life of the mother.

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Speaker 1: It's also worth emphasizing that Idaho Republicans in their recent

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Speaker 1: platform have called for the abolition of all exceptions, and

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Speaker 1: so the politics of this may differ in Idaho then

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Speaker 1: elsewhere because the Biden administration can talk about the fact

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Speaker 1: that Republicans in Idaho are not just defending very narrow exceptions,

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Speaker 1: they're calling for the elimination of those exceptions altogether. So

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Speaker 1: I read that for the exception to go into effect

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Speaker 1: in Idaho, basically a doct has to decide that a

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Speaker 1: woman's at death's door, right, That's correct. Also, doesn't the

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Speaker 1: Idaho law enable a lot of prosecutions because prosecutors can

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Speaker 1: just file the case and then the physician has to

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Speaker 1: go to court to defend himself for herself. Yeah, And

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Speaker 1: I mean, obviously what would happen in that situation is

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Speaker 1: not that would happen, But in many instances we know

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Speaker 1: from what's already happening that doctors just are going to

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Speaker 1: turn patients away because if they're not sure if the

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Speaker 1: patient is you know, close enough to death to receive care,

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Speaker 1: they're not going to treat and they're going to send

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Speaker 1: patient's home to get thicker. And in some instances those

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Speaker 1: patients will die or have you know, irreversible medical consequences

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Speaker 1: because they didn't receive treatment in time. It's not just

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Speaker 1: the case that doctors are going to get suited or

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Speaker 1: in the case of Idaho, also criminally prosecuted. It's also

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Speaker 1: the case that they will just not provide care in

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Speaker 1: the first place. I'm wondering if another reason the Justice

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Speaker 1: to art and chose Idaho is because it's different from

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Speaker 1: Texas is in the fifth circuit, where you have the

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Speaker 1: most conservative circuits in the country, whereas Idaho's in the

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Speaker 1: ninth circuit, which is one of the more liberal circuits.

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Speaker 1: That could be consequential. Obviously, it depends on if this

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Speaker 1: is resolved in the U. S. Speport. But yeah, you're

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Speaker 1: right that that might have also factored into the bib

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Speaker 1: administration's calculations. In addition to the things that make Idaho

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Speaker 1: attractive from with other standpoint of kind of talking points

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Speaker 1: than the actual structure of the law. We've talked before

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Speaker 1: about medication abortions, and demand for abortion pills is surging. Now.

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Speaker 1: It's still legal in most states to receive abortion medication

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Speaker 1: by mail, but are more states trying to prevent that

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Speaker 1: as well? Um, yeah, well, I mean states had already,

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Speaker 1: prior to having abortion vans, tried to ban telehealth aborsitions,

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Speaker 1: and then many of these state vans you know, cover

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Speaker 1: medication aworshion as well as any other kind of aworsition procedure.

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Speaker 1: We know that a lot of states are in special

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Speaker 1: session or are going to have further legislation emerging in

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Speaker 1: regular session, and we may expect to see more direct

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Speaker 1: addressing of medication aborsition there. But part of this is

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Speaker 1: just because the laws that we've seen emerged so far

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Speaker 1: are basically laws that were you know, but passed in

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Speaker 1: years when anti abortion groups weren't expecting a road to

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Speaker 1: be overturned anytime students, so they were never meant to

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Speaker 1: be the kind of final word on what legislators were

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Speaker 1: going to do. The only way to really protect abortion

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Speaker 1: rights is to have a federal law passed. What are

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Speaker 1: the chances of that at this point? I mean none

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Speaker 1: at the moment, I mean, Congress is not going to

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Speaker 1: pass protection for abortion at the moment. You would need

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Speaker 1: to have Democrats not just retain control of the Senate

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Speaker 1: in a hostile environment, that actually gained enough seats that

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Speaker 1: you wouldn't have to worry about the filibuster. Obviously, until

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Speaker 1: the election, the chances of an abortion build passing are

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Speaker 1: pretty much zero, and I think given the political climate

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Speaker 1: facing Democrats, unlikely that they're going to make gains in

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Speaker 1: the Senate. I think the Democrats would probably be happy

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Speaker 1: if they've managed to have the majority in the Senate

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Speaker 1: at all in two so I don't think it's very

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Speaker 1: likely that we're looking at a federal a worshion protection

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Speaker 1: in the near term. Even though polling shows that relatively

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Speaker 1: few Americans wanted to see Roe v. Wade overturned, More

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Speaker 1: Americans disapprove than approve of the Supreme Court's decision to

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Speaker 1: overturn Roe v. Wade to thirty, according to an Associated

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Speaker 1: Press NORK Center for Public Affairs Research poll that was

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Speaker 1: conducted just about three weeks after the ruling. Thanks so much, Mary.

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Speaker 1: That's professor Mary Ziegler of u C. Davis Law School,

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: I'm June Grossow, and you're listening to Bloomberg