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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Georgia Governor Brian

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Speaker 1: camp has signed one of the nation's most restrictive abortion laws.

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Speaker 1: It bans the procedure once a fetal heartbeat is detected,

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Speaker 1: which can be as early as six weeks before many

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Speaker 1: women know they're pregnant. Opponents of the law vow to

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Speaker 1: take their fight from the state capitol to the federal courthouse.

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Speaker 1: Something the law supporters are anticipating. Joining me is Steve Sanders,

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Speaker 1: professor at the Marrow School of Law at Indiana University.

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Speaker 1: So Steve. In the first few months of this year,

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Speaker 1: heartbeat abortion bands have been signed into law in four

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Speaker 1: states Mississippi, Kentucky, Ohio, and now Georgia. Do these laws

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Speaker 1: violate Roe v. Wade, They flatly violate current federal constitutional law.

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Speaker 1: For the Supreme Court so Roversus Way in ninety three

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Speaker 1: declared a woman's right to control her pregnancy to be

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Speaker 1: a fundamental right and established a trimester system for regulating

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Speaker 1: or not regulating abortion. In the Supreme Court modified that standard.

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Speaker 1: It's stuck by the core holding of ro versus Wade

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Speaker 1: that abortion was the woman's right, and it basically drew

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Speaker 1: the line at viability. After fetal viability, the Court said

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Speaker 1: states were free to do everything up through banning abortion

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Speaker 1: entirely if they wanted to pre viability. States could only

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Speaker 1: impose safety and other sorts of regulations if they didn't

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Speaker 1: impose an undoe burden that is a substantial impediment to

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Speaker 1: a woman seeking an abortion. Your introduction summarized it perfectly.

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Speaker 1: The proponents of these bills want to drive the issue

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Speaker 1: to the Supreme Court. There can't be any mistake that

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Speaker 1: these bills violate federal constitutional law right now. What their

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Speaker 1: proponents are hoping to do is drive the issue to

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Speaker 1: the Supreme Court and have the Court changed the current

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Speaker 1: federal constitutional law related to abortion. How has this current

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Speaker 1: Supreme Court treated abortion law cases so far? Well? That

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Speaker 1: so the Supreme Court has not, to the best of

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Speaker 1: my recollection, tackled a full blown case involving briefing and

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Speaker 1: oral argument and an opinion. Since Justice Kennedy left the bench.

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Speaker 1: There was a decision, the Whole Women's Health Decision from

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Speaker 1: several years ago, where a majority of the Court, including

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Speaker 1: Justice Kennedy, struck down some restrictions that Texas was attempting

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Speaker 1: to impose on abortion, saying that those restrictions did impose

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Speaker 1: and undo burden. Those restrictions weren't even aimed like the

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Speaker 1: fetal heartbeat bills at sort of cutting to the core

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Speaker 1: of the fundamental right of abortion. And what's changed is

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Speaker 1: the presences of Justice Corsation, especially Justice Kavanaugh. These so

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Speaker 1: called fetal heartbeat bills used to be too radical, even

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Speaker 1: for some anti abortion groups who thought it was wise

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Speaker 1: to move more incrementally towards chipping away at the federal

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Speaker 1: constitutional right to abortion. What we've seen, I think the

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Speaker 1: two things that have changed. Our President Trump is in

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Speaker 1: the White House and his Justice Department would surely defend

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Speaker 1: these bills. And we have Justice Kavanaugh now on the

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Speaker 1: Supreme Court, and so suddenly we have a cluster of

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Speaker 1: these bills being passed. The Kentucky bill has been temporarily

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Speaker 1: blocked by a lower federal court, which is obligated to

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Speaker 1: follow the current constitutional law from the Supreme Court, and

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Speaker 1: probably these other bills, including Georgia's, will be blocked as well.

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Speaker 1: The lower courts are obligated to follow the current law

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Speaker 1: from the Supreme Court. If the Supreme Court ultimately takes

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Speaker 1: these cases, the Supreme Court can change the law if

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Speaker 1: it wants to. Do you read anything into the fact

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Speaker 1: that in February the Supreme Court temporarily blocked a Louisiana

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Speaker 1: law that critics said would limit access to abortion. It's

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Speaker 1: always difficult to know what to read into these sorts

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Speaker 1: of stays or temporary blocks on a law. I think

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Speaker 1: probably it's safest to read not much into those kinds

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Speaker 1: of things. Part of the calculation with that sort of

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Speaker 1: decision is the possibility of who might ultimately prevail on

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Speaker 1: the merits. But there are other considerations that weigh in

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Speaker 1: the balance as well, the relative harms to the plaintiffs

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Speaker 1: as opposed to the government if the law does or

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Speaker 1: does not go into effects. I think this is an

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Speaker 1: area where it's dangerous, and probably a majority of the Court,

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Speaker 1: including the Conservatives and Justice Kabina, are sensitive to the

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Speaker 1: perception that they're just sitting there waiting to get their

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Speaker 1: hands on something that they can use to reverse ro

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Speaker 1: versus ways. So I think even justices who are sympathetic

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Speaker 1: to the idea of scaling back abortion rights realize that

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Speaker 1: people will be watching very closely what they do in

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Speaker 1: any case, whether it's a fully argued case or something

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Speaker 1: like the Louisiana to There's a bill in Alabama that

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Speaker 1: would ban abortion outright, and a state representative said it

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Speaker 1: was designed to go directly after Row v. Wade. It

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Speaker 1: was written that way. Is that a miscalculation on their part,

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Speaker 1: because from what you said, the justices may not want

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Speaker 1: to do a wholesale reversal of a president like Row v. Wade.

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Speaker 1: I think most mainstream observers who were watching the cabin

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Speaker 1: All hearings, who have founded this issue, who are aware

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Speaker 1: of the influence than Justice Roberts has and his concerns

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Speaker 1: that he's an institutionalist. He doesn't want to see the

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Speaker 1: Supreme Court perceived as overly or entirely political. Um. I

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Speaker 1: think it is a miscalculation. I think it is likely

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Speaker 1: that the Court will use some of these cases that

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Speaker 1: might come to it to expand permissible state regulation pre viability,

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Speaker 1: maybe even to make the observation that viability is a

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Speaker 1: moving target and keeps moving earlier, and so the law

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Speaker 1: may have to change accordingly. But I think the Court

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Speaker 1: is more likely than not too if it's going to

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Speaker 1: chip away at ro versus way, to do it in

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Speaker 1: incremental ways, not a sort of wholesale reversal. I simply

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Speaker 1: don't think that Justice Roberts, if he is the swing boat,

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Speaker 1: would go along with something like that. All right, Thank

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Speaker 1: you so much D for those insights. That's Professor Steve Sanders,

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Speaker 1: Professor at Indiana University's Morris School of Law. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on

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Speaker 1: Bloomberg dot com slash podcast. I'm June Brasso. This is

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Speaker 1: Bloomberg