Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2: It was an extremely rare victory for a death row
Speaker 2: prisoner at the Supreme Court, but then Richard Glossop's case
Speaker 2: was unusual in many respects. Glossip has been on Oklahoma's
Speaker 2: death row for twenty seven years. He's been scheduled to
Speaker 2: be executed nine times and has eaten his last meal
Speaker 2: three times, once avoiding execution only because of a mix
Speaker 2: up in the lethal drugs that were to be administered.
Speaker 2: Through decades of appeals, including to the Supreme Court, Glossop
Speaker 2: has maintained his innocence of the murder of his boss,
Speaker 2: But then in twenty twenty three, an unlikely ally joined
Speaker 2: his appeals to have his conviction overturned. The state's Republican
Speaker 2: Attorney General, Gettner Drummond, who's an advocate of the death penalty,
Speaker 2: after an investigation. In review of the trial record and
Speaker 2: the box of documents prosecutors had withheld from Glossop's attorney,
Speaker 2: Drummond said the conviction could no longer stand because the
Speaker 2: prosecution had withheld evidence favorable to the defense and failed
Speaker 2: to correct false testimony at trial. I do not believe
Speaker 2: that Richard Blossop is innocent.
Speaker 1: I believe him to be guilty, but I believe him
Speaker 1: to not have been given a fair trial.
Speaker 2: This week, the Supreme Court agreed that misconduct by prosecutors
Speaker 2: had violated Glossop's constitutional rights, and the Court threw out
Speaker 2: his conviction, with the liberal justices joined by conservatives Brett
Speaker 2: Cavanaugh and Chief Justice John Roberts. My guest is Cliff Sloane,
Speaker 2: a professor of criminal justice at Georgetown Law. He's argued
Speaker 2: and won a death penalty case before the Supreme Court.
Speaker 2: A death penalty case before the Supreme Court. The Oklahoma
Speaker 2: ag said he wasn't surprised by the Supreme Court's decision, but,
Speaker 2: knowing how this court denies virtually all execution appeals, were
Speaker 2: you surprised, No.
Speaker 1: I wasn't surprised by it, but I was heartened by it.
Speaker 1: I wasn't surprised by it because I thought on the merits,
Speaker 1: the case for Glossop and the Supreme Court was so strong,
Speaker 1: and it seemed in the oral argument that this is
Speaker 1: we're clearly favoring Golossop's claim. A couple of them is
Speaker 1: Thomas and Alito were clearly hostile, and then there were
Speaker 1: a few that we couldn't really tell exactly. But as
Speaker 1: you said, the Supreme Court has been extremely hostile to
Speaker 1: claims raised by death row defendants in recent years. I
Speaker 1: think unfortunately so, and I think unjustifiably so. And so
Speaker 1: it was far from a sure thing that the Supreme
Speaker 1: Court was going to reach this decision, even though as
Speaker 1: I mentioned, I think that the merits for Glossop were
Speaker 1: extremely strong. So it wasn't a total surprise, but it
Speaker 1: also was far from a foregone conclusion.
Speaker 2: Tell us about the unusual aspects of Glossop's case.
Speaker 1: One thing that's very unusual about Glossop's case is that
Speaker 1: you had the Republican Attorney General of Oklahoma, who generally
Speaker 1: is very much in favor of the death penalty, very
Speaker 1: strongly saying that he did not get a fair trial,
Speaker 1: and of course the death sentence that went with it
Speaker 1: was unfair and that he should have a new trial,
Speaker 1: and that Gossop was right that there had been prosecutorial misconduct,
Speaker 1: very important misconduct by the prosecutors that prevented him from
Speaker 1: having a fair trial, and that required setting aside this
Speaker 1: conviction and the death sentence and getting a new trial.
Speaker 1: So you had a unanimity, had a census by both
Speaker 1: Blossop and by the state, by the prosecutors that his
Speaker 1: conviction and death sentence were unfair and could not stand.
Speaker 1: And yet even with that consensus view, and even with
Speaker 1: the strength of their reasons for that, the Oklahoma Court
Speaker 1: of Criminal Appeals, the highest court in Oklahoma on criminal matters,
Speaker 1: rejected that position and said that the conviction is going
Speaker 1: to stand and he's going to be executed. And so
Speaker 1: it was this sort of remarkable situation where you had
Speaker 1: the state court rejecting the views even of the prosecutor,
Speaker 1: which was sharing the view of the defendant that under
Speaker 1: the constitution he was entitled to a new trial. Now,
Speaker 1: you know, one of the things, this is not the
Speaker 1: only time that this has happened in recent years, and
Speaker 1: one that got a lot of attention last year was
Speaker 1: the case of Marcellus Williams in Missouri, and who had
Speaker 1: a long innocence claim and the local prosecutor, the office
Speaker 1: that had prosecuted him and secured the death sentence, agreed
Speaker 1: that he should not be executed. And yet the Missouri
Speaker 1: courts rejected that, and the Supreme Court did not intervene,
Speaker 1: and that has happened in some other circumstances also, So
Speaker 1: it's very striking in the Glossop case, but it actually
Speaker 1: reflects the kind of pervasive problem that we have right
Speaker 1: now when state courts are rejecting the consensus view of
Speaker 1: prosecutors and defendants that the individual didn't get a fair
Speaker 1: trial or didn't get a death sentence fairly imposed, and
Speaker 1: the state courts just barrel ahead you upholding the conviction
Speaker 1: and ordering the execution. Now, sometimes what you have, and
Speaker 1: this happens with Marcellus Williams, sometimes you have a bit
Speaker 1: of a division on the state side where you have
Speaker 1: the local prosecut for example, saying that it should be
Speaker 1: set aside, and then you have the state attorney general
Speaker 1: trying to kind of intervene and say no, no, no,
Speaker 1: we think the execution should go forward. You didn't have
Speaker 1: that in the Glossop case, and there was nobody from
Speaker 1: the state who was saying that the conviction should be
Speaker 1: upheld and that the execution should go forward. But this
Speaker 1: is a problem that comes up, and it's kind of
Speaker 1: surprising and troubling. I think that state courts are rejecting
Speaker 1: the positions of the prosecutors when they're saying, yes, the
Speaker 1: defendant is right, and either the conviction shouldn't stand or
Speaker 1: the execution shouldn't go forward.
Speaker 2: Justice Sonia Sotomayua wrote the majority opinion. Will you explain
Speaker 2: her reasoning.
Speaker 1: Well, this case was a bit of an unusual case
Speaker 1: to begin with, because it involved mister Golossop's conviction for
Speaker 1: murder and death sentence, even though there's no question he
Speaker 1: wasn't involved in the actual physical commission of the murder,
Speaker 1: and the case against the Glossop depended entirely on the
Speaker 1: testimony of an individual who said that Glossop had recruited
Speaker 1: him to commit the murder, and there was no other
Speaker 1: direct evidence that gossip was involved in planning the murder
Speaker 1: in any way. And yet it came out later that
Speaker 1: the individual whose testimony was so critical in implicating Glossop,
Speaker 1: he lied on the stand, and that the prosecution knew
Speaker 1: that it was false testimony, and what it was about
Speaker 1: was that he had taken lithium, and what he testified
Speaker 1: to was that he had never been treated by a psychiatrist,
Speaker 1: and he had no mental health problems or issues, and
Speaker 1: that he had received the lithium as a mistake when
Speaker 1: he requested something for a cold. And one of the
Speaker 1: things that came out years later, and that was kind
Speaker 1: of the heart of the case in the Supreme Court,
Speaker 1: was that the prosecutor had in her notes of a
Speaker 1: conversation with him a reference to lithium and to the
Speaker 1: name of the psychiatrist at the facility where he was
Speaker 1: being incarcerated, and the medical records reflected that he had
Speaker 1: been prescribed lithium by a psychiatrist and had bipolar disorder,
Speaker 1: And this would have been very, very important for the
Speaker 1: jury to understand in terms of evaluating his testimony, both
Speaker 1: in terms of his credibility, and again, the entire case
Speaker 1: against Gossop depended on his credibility, and here he blatantly
Speaker 1: lied about the circumstances of his receiving lithium and whether
Speaker 1: he had ever been treated by a psychiatrist, and also
Speaker 1: possible patients that they might draw about whether he would
Speaker 1: have acted impulsively and whether it could have been connected
Speaker 1: to his psychological difficulty. So it is extremely important evidence.
Speaker 1: That was the view of the majority, and there's a
Speaker 1: Supreme Court case going back to the nineteen fifties called napoo,
Speaker 1: which says that the prosecution cannot knowingly put on false
Speaker 1: testimony and that if there is a false testimony that
Speaker 1: the prosecution knows about, it has to correct that before
Speaker 1: the jury, and if not, it's a violation of the
Speaker 1: defendant's constitutional rights, it's a violation of due process. And
Speaker 1: so Glossop's argument in the Oklahoma Attorney General agreed, this
Speaker 1: is a classic open and shut napoo violation. The only
Speaker 1: witness against him gave false testimony. We've got this evidence
Speaker 1: in the records that shows that the prosecutor she knew
Speaker 1: it was false testimony, and yet she didn't do anything
Speaker 1: to correct it. So that was the view of justice.
Speaker 1: So the mayor and the majority justices.
Speaker 2: Clarence Thomas and Samuel Alito dissented, Amy Cony Barrett concurred
Speaker 2: in part, dissented in part. Thomas said that the High
Speaker 2: Court had no authority to override Oklahoma's state courts.
Speaker 1: Well, so there were two issues in the case. There
Speaker 1: was a procedural issue and a substantive issue. And we've
Speaker 1: been talking about the substantive issue about the merits of
Speaker 1: the napok claim. But it also is the case that
Speaker 1: if a state court decision rests entirely on a state ground,
Speaker 1: what they call an adequate and independent state ground, then
Speaker 1: that's a sufficient basis for it. So, for example, let's
Speaker 1: say the state says that a brief has to be
Speaker 1: filed within thirty days, and somebody filed it ninety days later,
Speaker 1: and the state says, we're not going to consider it
Speaker 1: because it violates did our state rule? Well, that's been
Speaker 1: held to be an adequate and independent state ground. And
Speaker 1: so here the Oklahoma Court of Criminal Appeals said a
Speaker 1: lot of different things that the oral argument, Justice Stagan
Speaker 1: said they were basically thrown in the kitchen sink, but
Speaker 1: they made some reference to some of the state court rules.
Speaker 1: And so one of the arguments that was made by
Speaker 1: a lawyer whose Supreme Court appointed to defend the decision
Speaker 1: of the Oklahoma Court or Criminal Appeals, which is common
Speaker 1: for the Supreme Court to do if the parties are
Speaker 1: in agreement and nobody's defending the lower court decision. So
Speaker 1: that person who is appointed by the Supreme Court said, well,
Speaker 1: there's an adequate and independent state ground here, and so
Speaker 1: you don't even reach the federal constitutional issue. And all
Speaker 1: of the justices except for Justice Thomas and Alito rejected
Speaker 1: that view and said that no, their view even of
Speaker 1: the application of the state rules was based on their
Speaker 1: view that there wasn't a NAPOU violation, that it was
Speaker 1: quote unquote meritless, and that's a federal constitutional issue, so
Speaker 1: there's not an adequate and independent state procedural ground. But
Speaker 1: Justice Thomas and Justice Alito said no, they thought that
Speaker 1: there was an adequate and independent state ground. There was
Speaker 1: a sufficient reliance on that state rule, which included a
Speaker 1: provision that you can't raise an issue that could have
Speaker 1: been raised earlier, and in their view, it could have
Speaker 1: been raised earlier. So that was the arguments that he
Speaker 1: was making there. And you know, by the way, well,
Speaker 1: and we're talking about the lineup of the justices, we
Speaker 1: should just mention that it was eight justices who decided this.
Speaker 1: Justice Coursich didn't participate because when he was a Court
Speaker 1: of Appeals judge, he had been involved in an earlier
Speaker 1: stage of the Glossop proceeding. So the only two justices
Speaker 1: who thought there was a procedural bar to considering it
Speaker 1: were Justices Thomas and Alito.
Speaker 2: Coming up next, will Glossop be tried again you're listening
Speaker 2: to Bloomberg. This week, the Supreme Court granted Oklahoma death
Speaker 2: row inmate Richard Glossop a new trial, finding that misconduct
Speaker 2: by prosecutors violated his constitutional rights at his trial. The
Speaker 2: Court threw out the conviction, agreeing with Oklahoma's Republican Attorney
Speaker 2: General that the prosecution withheld evidence favorable to the defense
Speaker 2: and failed to correct false testimony at trial. Two conservative
Speaker 2: justices dissented. I've been talking to Georgetown law professor Cliff Sloane.
Speaker 2: In his dissent, Clarence Thomas said, there's no reason to
Speaker 2: think that disclosing the bipolar disorder of the state's star
Speaker 2: witness would have affected the outcome of the trial. I'm
Speaker 2: not sure how he can come to that kind of conclusion,
Speaker 2: especially because you never know what's going to affect the
Speaker 2: credibility of a witness in the eyes of the jury.
Speaker 2: Is there any set of circumstances where Thomas and Alito
Speaker 2: would rule against the death penalty.
Speaker 1: Well, you know, they generally have been extremely hostile to
Speaker 1: capital defendants, and even in a case where Justice Alito
Speaker 1: did join almost all of the other members of the
Speaker 1: court in ruling for a capital defendants, but he wrote
Speaker 1: a very narrow concurrence in the judgment where he basically said,
Speaker 1: you know this case and this case only, but that
Speaker 1: you know brings up a very important point not just
Speaker 1: about Justice Thomas and Justice Alito, but about the Supreme
Speaker 1: Court as a whole that relates to Glossop and this
Speaker 1: overall picture with the death penalty, because since the modern
Speaker 1: era of the death penalty began in the mid nineteen seventies,
Speaker 1: there have been two two one hundred people who have
Speaker 1: been exonerated on death row. Two hundred people who were
Speaker 1: convicted and sentenced to death and had death penalties hanging
Speaker 1: over their heads and then were found to be innocent.
Speaker 1: That is a truly astonishing and deeply troubling fact. And
Speaker 1: it is a fact two hundred people since the nineteen
Speaker 1: seventies sentenced to death who were exonerated. And yet the
Speaker 1: Supreme Court very regularly is raising and constructing extremely complicated
Speaker 1: procedural obstacles that make it very difficult and in some
Speaker 1: cases impossible, for defendants to raige claims to have federal
Speaker 1: courts examine the merits of their constitutional claims, even when
Speaker 1: those claims relate to innocence and this very very strange
Speaker 1: dichotomy where on the one hand, you've got the Supreme
Speaker 1: Court majority creating these extremely difficult procedural obstacles that prevent
Speaker 1: people from having their claims heard, and on the other hand,
Speaker 1: we're seeing these very serious problems with two hundred exonerations
Speaker 1: in recent years. And that's not the only problem with
Speaker 1: the death penalty. I mean, there's a tremendous problem with
Speaker 1: ineffective assistance of console, with terrible lawyering. Almost invariably somebody
Speaker 1: who gets the death penalty, there's been terrible lawyering involved.
Speaker 1: The Supreme Court's making it extremely difficult for somebody to
Speaker 1: raise that claim. And in one case a couple of
Speaker 1: years ago, the Supreme Court majority said, well, the Senate,
Speaker 1: you're stuck with the record that you're completely inadequate lawyer
Speaker 1: created for you, and you can't add to that record
Speaker 1: instances of lawyers literally sleeping at times during capital trials
Speaker 1: where courts have left that in place. So you have
Speaker 1: this very strange dichotomy of the Supreme Court creating these
Speaker 1: enormous procedural obstacles on the one hand, and this record
Speaker 1: of abuses with the death penalty.
Speaker 2: On the other turn, oklahom Attorney General Gentner Drummond said
Speaker 2: at a news conference after this decision that I do
Speaker 2: not believe Richard Glossip is innocent, and he said that
Speaker 2: his office is going to review the ruling, visit the
Speaker 2: family members determine the most appropriate course of action because
Speaker 2: they have to decide now whether to try him again.
Speaker 2: How do you try a case twenty eight years later
Speaker 2: when there was never any physical evidence to begin with.
Speaker 2: Now there's new evidence that the state's star witness lied
Speaker 2: on the stand, wanted to recount his testimony so he
Speaker 2: can be impeached. I mean, how do you try a
Speaker 2: case like that.
Speaker 1: Look, I I think it's going to be extremely difficult
Speaker 1: for them to try the case, and we'll see what
Speaker 1: charges they would bring. But for the reasons that you mentioned,
Speaker 1: of course, it's a long time ago, but also it's
Speaker 1: the very reason why this information was so important, because
Speaker 1: the fact that the only witness against him blatantly lies,
Speaker 1: you know, he is subject to impeachment on that basis,
Speaker 1: and so I would think there'll be enormous problems in
Speaker 1: trying the case. But I will say one thing about
Speaker 1: the Oklahoma Attorney General I think he deserves tremendous credits because,
Speaker 1: first of all, again he's somebody who very much supports
Speaker 1: the death penalty and yet took a very principled stand
Speaker 1: here that no, this man did not receive a fair
Speaker 1: trial and both his conviction and death should not remain
Speaker 1: in place. But in addition to that, this is all
Speaker 1: in the context where his official position is the gloss
Speaker 1: of his guilty, but that he should get a fair trial.
Speaker 1: You know, it's a Supreme Court argument. Representing the state
Speaker 1: of Oklahoma was Paul Clement, a former Solicitor General for
Speaker 1: the United States in the George W. Bush administration, in
Speaker 1: one of the preeminent and leading Supreme Court advocates of
Speaker 1: our time. And you know, Paul Clement said that in
Speaker 1: the oral argument, he said, we don't think mister Glossop
Speaker 1: is a poster boy for innocence, and we're going to
Speaker 1: try to retry him. And I think that if the
Speaker 1: Supreme Court does the right thing he said, which we
Speaker 1: urge you to do in terms of setting aside this
Speaker 1: conviction of death, sense, we're going to try and convict
Speaker 1: him again. And so I just think that really speaks
Speaker 1: to the principal stance that the Oklahoma Attorney General took
Speaker 1: here exactly what you want a public official to do,
Speaker 1: regardless of political affiliation, to say, I've looked at the facts,
Speaker 1: I've looked at the evidence. This man did not receive
Speaker 1: a fair trial. Yes, he's guilty in our view. Of course,
Speaker 1: Blossop very much disputes that, and we're going to try
Speaker 1: to go after him again with a fair trial. That's
Speaker 1: been there position throughout. I mean, the.
Speaker 2: Victim's family wants this tried it again as a death
Speaker 2: penalty case. Do you think there'll be pressure not only
Speaker 2: on the Oklahoma Attorney General, but on the Oklahoma County
Speaker 2: District attorney to try the case again.
Speaker 1: Death penalty cases, by their nature, they are always very
Speaker 1: very high profile and with a lot of public pressure.
Speaker 1: It's one of the reasons it's very important for public officials,
Speaker 1: even in that kind of situation to act in principled ways.
Speaker 1: But they're always very very controversial situations with you know,
Speaker 1: horrible crimes that are at issue, you know, victims' families.
Speaker 1: There can be a wide variety. I mean, there's sometimes
Speaker 1: is a situation where victims' families are actually against the
Speaker 1: death penalty for a lot of reasons that they don't
Speaker 1: think the taking of life justifies the taking of life.
Speaker 1: They also think accurate lea it's going to lead to
Speaker 1: a much more prolonged and difficult process for them. And
Speaker 1: then you have some victims' families who are in favor
Speaker 1: of the death penalty and who you know, obviously have
Speaker 1: suffered extremely difficult anguish of losing a loved one, and
Speaker 1: the victim's family here is being very aggressive in supporting
Speaker 1: the death penalty for Glossop and in supporting their view
Speaker 1: that he is guilty. And in fact, they filed in
Speaker 1: the Supreme Court and amicus brief arguing very strongly against
Speaker 1: the Oklahoma Attorney General and Glossop in saying that the
Speaker 1: notes of the prosecutor were being misinterpreted. They actually attached
Speaker 1: new documents that hadn't been part of the record and
Speaker 1: made new arguments, and Justice Thomas's descent relies at times
Speaker 1: on that brief, and the majority took pains to say
Speaker 1: those documents were not in the record. So in this case,
Speaker 1: it certainly is true that you have a very very
Speaker 1: active victims family that's going to be pushing both for
Speaker 1: retrial and the death penalty.
Speaker 2: Is this the strangest saga for a death row inmates
Speaker 2: case or are there others that are just as bad?
Speaker 1: Oh, there are many that are just as bad, and
Speaker 1: in a number of ways. I mean, first of all,
Speaker 1: as we were talking about the problem of people turning
Speaker 1: out to be innocent and also the problem of prosecutorial misconducts,
Speaker 1: both of those are rampant in death penalty cases, and
Speaker 1: there's actually a high correlation between the two. That's frequently
Speaker 1: when somebody has been wrongly convicted, it's because there's been
Speaker 1: prosecutorial misconduct. But those aren't the only kinds of claims.
Speaker 1: There are all sorts of other claims that turn out
Speaker 1: to be meritorious, including in effective assistance of console, including
Speaker 1: problems connected with race. And you know, some people who
Speaker 1: are in favor of the death penalty complain about the
Speaker 1: length of time that it takes, and that includes some
Speaker 1: of the conservative justices on the Supreme Court. You know,
Speaker 1: Glossop previously had a case in the Supreme Court where
Speaker 1: he was objecting to lethal injection as cruel and usual,
Speaker 1: that it was an untried procedure that was going to
Speaker 1: make it feel like somebody was being burned alive, and
Speaker 1: the Supreme Court majority rejected that claim, and both in
Speaker 1: the oral argument and in the opinion talked about this
Speaker 1: guerrilla campaign against the death penalty and expressed real frustration
Speaker 1: and impatience with efforts to impede the death penalty. Now,
Speaker 1: the other side of that is that the reason that
Speaker 1: these issues come up so much is because there are
Speaker 1: so many pervasive and fundamental problems with the death penalty,
Speaker 1: and frequently it takes a while to get them litigated,
Speaker 1: including because there's frequently such poor lawyering at the trial level.
Speaker 1: And yet frequently there is a kind of vindication in
Speaker 1: the end for the death row inmate. Obviously not always,
Speaker 1: And although we have fewer executions each year and fewer
Speaker 1: death sentences than we've had in the past, and lower
Speaker 1: public support, and the death sentences that are handed out
Speaker 1: and the executions that occur are in a relatively small
Speaker 1: handful of jurisdictions, but there are executions that are going forwards.
Speaker 1: And I'm certainly not suggesting by any means that in
Speaker 1: every case the defendant ultimately prevails, But in many of
Speaker 1: these circumstances where it takes a long time for the litigation,
Speaker 1: it turns out, as in this case, that the defendant
Speaker 1: has very strong territorious claims and that it would be
Speaker 1: completely unconstitutional either to uphold the convictions or to proceed
Speaker 1: with the death sentence. So, I mean, there are some
Speaker 1: unique twists and turns in mister Glossop's case, but the
Speaker 1: idea of this sort of prolonged saga and very very
Speaker 1: deep and troubling errors coming up along the way is
Speaker 1: far from unique to his case.
Speaker 2: Thanks so much for taking the time to talk with me.
Speaker 2: That's Professor Cliff Sloan of Georgetown Law. The Supreme Court
Speaker 2: dealt a set that to abortion opponents this week, refusing
Speaker 2: to reconsider a two thousand decision that let states and
Speaker 2: cities create protective zones to shield patients from being approached
Speaker 2: near clinic entrances. The justices turned away two appeals that
Speaker 2: argue the restrictions outside clinics violate the free speech rights
Speaker 2: of abortion opponents who want to talk to women as
Speaker 2: they enter the facilities. Two of the most conservative justices dissented.
Speaker 2: Joining me is an expert in abortion law, Mary Ziegler,
Speaker 2: a professor at UC Davis Law School. Mary tell us
Speaker 2: about that two thousand decision that allowed buffer zones outside
Speaker 2: abortion clinics.
Speaker 3: So this is part of this series of rulings on
Speaker 3: this topic called Hill versus Colorado. Hill was about a
Speaker 3: Colorado law that was kind of prototypical of the era
Speaker 3: that made it unlawful for anyone who was within one
Speaker 3: hundred feet of a healthcare facilities entrance to knowingly come
Speaker 3: within eight feet of another person unless the person they
Speaker 3: were approaching consented. And you know, the idea was either
Speaker 3: to you know, show them a sign or talk to
Speaker 3: them or whatever. And a group of anti abortion protesters
Speaker 3: thought that this violated the First Amendment and they sued,
Speaker 3: and the US Supreme Court, in a sixty three ruling
Speaker 3: held that Colorado's restrictions on this kind of speech related
Speaker 3: conduct were constitutional. So this was a bid by the
Speaker 3: new generation of abortion opponents to get rid of this
Speaker 3: prior ruling.
Speaker 2: I mean, I've wanted to get rid of it for
Speaker 2: a long time. This was the first time this has
Speaker 2: come up since the court overturned the right to abortion.
Speaker 3: Yeah, it was so the court had kind of narrowed
Speaker 3: the protections that it afforded medical facilities in a twenty
Speaker 3: fourteen decision out of Massachusetts called McCullen, but the issue
Speaker 3: hadn't really returned to the court in a meaningful way
Speaker 3: since then.
Speaker 2: As usual, the Court gave no explanation for why it
Speaker 2: wasn't taking the cases. But do you think it's they
Speaker 2: just want to avoid another abortion case.
Speaker 3: It's hard to say it. Maybe that they didn't want
Speaker 3: to take another abortion case, and maybe that this was
Speaker 3: not the ideal case to take because Carbondale, which was
Speaker 3: the site of one of the ordinances that was being challenged,
Speaker 3: no longer was enforcing its ordinance, so there was an
Speaker 3: argument that this was no longer a real live If
Speaker 3: the justices do want to take up an abortion case,
Speaker 3: they may not want to take up a case that
Speaker 3: features protesters and potentially vigilantes right as opposed to abortion
Speaker 3: opponents who are claiming to interpret laws on the books
Speaker 3: rather than resist them. So it's hard to know how
Speaker 3: much to read into this. It may not be a
Speaker 3: sign that the Court's reluctant to get into the abortion
Speaker 3: debate at all. It may simply be something unique to
Speaker 3: this case.
Speaker 2: So the conservative justices Clarence Thomas and Samuel Alito said
Speaker 2: they would have heard both cases, and Thomas said in
Speaker 2: a descending opinion that Hill has been seriously undermined, if
Speaker 2: not completely eroded, and our refusal to provide clarity is
Speaker 2: an abdication of of our judicial duty. What does he
Speaker 2: mean that it's been seriously undermined? Is it by the
Speaker 2: case that you were just talking about.
Speaker 3: Yeah, I think that on. Thomas's argument was that the
Speaker 3: court's subsequent decisions after Hill had afforded more protection for
Speaker 3: the speech of anti abortion protesters. And I think Thomas
Speaker 3: was also stressing what had happened in Dobbs, the decision
Speaker 3: overruling Row. So parts of Dobbs complained about what abortion
Speaker 3: opponents call abortion distortion, the idea that Roe had kind
Speaker 3: of deformed other areas of the law that weren't theoretically
Speaker 3: closely related to abortion. And one of the areas that
Speaker 3: Dobbs flagged was First Amendment doctrine and cited Hill as
Speaker 3: an example of this distortion. So Thomas pointed to this
Speaker 3: language in Dobbs and said, well, we already suggested that
Speaker 3: Hill was a distortion, so why don't we overrule it.
Speaker 3: That was the other I think inconsistency Justice Thomas was
Speaker 3: trying to flag.
Speaker 2: It takes four votes to take the case, and you
Speaker 2: had two other conservative justices Neil Gorsuch and Amy Cony Barrett,
Speaker 2: who had previously joined Tomas in criticizing the Hill ruling,
Speaker 2: so that would have made four votes. It seems odd
Speaker 2: that they didn't take it.
Speaker 3: Yeah, I mean, like I said, there are any number
Speaker 3: of reasons. We know historically that the justices have sometimes
Speaker 3: been more uncomfortable with clinic blockaders and protesters than they
Speaker 3: are with other anti abortion arguments, especially because there has
Speaker 3: been sort of a flavor sometimes from those protesters of
Speaker 3: answering to a higher law rather than to the Supreme Court.
Speaker 3: We also know again that this case had some sort
Speaker 3: of weird procedural issues that might have made some of
Speaker 3: the justices, who weren't eager to get into this arena
Speaker 3: again anyway, might have given them an excuse to wait.
Speaker 3: So we might not know for sure, But again I
Speaker 3: think it's much too early to say we won't see
Speaker 3: the Court get involved in another abortion case in the
Speaker 3: near term.
Speaker 2: How big a setback is this? Is it a setback
Speaker 2: for abortion opponents.
Speaker 3: It's certainly a setback. I think there was a feeling
Speaker 3: that abortion opponents had when the Court first decided Dabbs
Speaker 3: that it was kind of open season and that any
Speaker 3: precedent on abortion rights could be challenged and quickly done
Speaker 3: away with. And that's certainly not the impression that this gives.
Speaker 3: It seems that, you know, if, for example, plaintiffs don't
Speaker 3: have standing, or if a case has defects like this
Speaker 3: one does, that the justices may just pass on it.
Speaker 3: I think it is a setback. But how significant is setback?
Speaker 3: I think is challenging to determine.
Speaker 2: Are there still at abortion clinics in a lot of
Speaker 2: states people coming up to people walking in and trying
Speaker 2: to dissuade them. Is that still going on?
Speaker 3: It is to some degree. Yeah, I mean we know.
Speaker 3: One of the I think obviously features of this is
Speaker 3: that there were relatively few but there were some prosecutions
Speaker 3: under the Federal Freedom of Access to Clinic Entrances Act,
Speaker 3: and they're a relatively small percentage of prosecutions per protests,
Speaker 3: and of course, you know, we expect to see more
Speaker 3: of them because the Trump administration announced that they would
Speaker 3: not be enforcing the Face Act against abortion opponents during
Speaker 3: the Trump administration sort of regardless of what happens, so
Speaker 3: there already are protests, and we'd expect to see more
Speaker 3: to some degree. They're also more concentrated, of course, because
Speaker 3: there are fewer places where it's possible to get a
Speaker 3: legal abortion in the US, fewer clinics, so protesters can
Speaker 3: kind of concentrate on the remaining locations.
Speaker 2: Has the Trump administration made any other moves regarding abortion?
Speaker 1: Not a lot.
Speaker 3: So the Trump administration has made some of the kind
Speaker 3: of standard moves we'd expect to see from a Republican
Speaker 3: president on abortion, so for example, reinstituting limits on foreign
Speaker 3: aid to NGOs that do abortion advocacy or referrals. We've
Speaker 3: seen coded references to the idea of fetal personhood in
Speaker 3: the Gender Executive Order that the Trump administration handed down.
Speaker 3: As I mentioned that Trump and JD. Vance may clear
Speaker 3: that there would be no more prosecutions under the face
Speaker 3: AAC to protect access to abortion clinics or crisis pregnancy centers. Interestingly,
Speaker 3: so we've seen that we haven't seen a lot of
Speaker 3: the bigger moves that abortion opponents have been hoping for.
Speaker 3: That doesn't mean we won't in the future, but Trump
Speaker 3: has yet to take action on those fronts.
Speaker 2: What are abortion opponents targeting right now is the abortion
Speaker 2: film if a Pristone one of their targets.
Speaker 3: The steps that they're primarily interested in are either imposing
Speaker 3: new limits on mithapristone through FDA or directly through AHHS
Speaker 3: Secretary Robert F. Kennedy, or potentially even removing mythapristone from
Speaker 3: the market altogether. There's also a potential push to have
Speaker 3: the Trump Justice Department treat the Comstock Act as a
Speaker 3: de facto ban on mailing abortion related items and to
Speaker 3: start prosecutions. Those are I think the two things that
Speaker 3: have captured the most attention. The other thing, of course,
Speaker 3: that will have a major impact but won't be as
Speaker 3: evident in the short term, is that Trump will continue
Speaker 3: to fill judicial vacancies with conservative judges like Matthew Tasmeric
Speaker 3: and James Hoe, who've issued pretty strongly conservative and sweeping
Speaker 3: rulings on abortion since Trump nominated them during his last administration.
Speaker 3: So I think the courts overall will probably be moving
Speaker 3: significantly to the right on these issues, but those are
Speaker 3: not impacts we'll see from the Trump administration in the
Speaker 3: coming weeks. That's a longer term change.
Speaker 2: As far as RFK Junior, what is his position on abortion.
Speaker 2: I mean, is he a threat to abortion rights?
Speaker 3: It's difficult again to say so. RFK had telegraphed during
Speaker 3: and after his confirmation hearing that he would be investigating
Speaker 3: the safety of MIFFA pristone at Donald Trump's request. Now,
Speaker 3: abortion opponents, on the one hand, we're excited about this,
Speaker 3: because there's no real need to studying mif for pristone
Speaker 3: unless you're telegraphing a move to limit it. MIHA. Pristone's
Speaker 3: one of the most studied and really regulated drugs in
Speaker 3: the United States. On the other hand, of course, the
Speaker 3: Trump administration has been perfectly capable of taking very quick
Speaker 3: action to establish policies at wants, and the fact that
Speaker 3: it's sort of slow walking these policies may mean that
Speaker 3: the Trump administration is simply trying to buy time rather
Speaker 3: than building toward a sweeping new abortion policy. So I
Speaker 3: think just too early to say which of those we're seeing.
Speaker 2: Something that caught my eye is two states, Louisiana and Texas,
Speaker 2: criminally prosecuting a doctor in New York for sending out
Speaker 2: abortion pills.
Speaker 3: There are two cross border disputes that have unfolded. Texas
Speaker 3: has already had a civil judgment, a default judgment against
Speaker 3: doctor Carpenter from New York that it's going to have
Speaker 3: to try to enforce in the New York courts. And meanwhile,
Speaker 3: Louisiana prosecutors are trying to extradite that same New York
Speaker 3: doctor to Louisiana to face criminal charges. And we know
Speaker 3: that New York Governor Kathy Hoko has made clear that
Speaker 3: she has no plans to extradite doctor Carpenter. So both
Speaker 3: of these cases seem likely to end up with disputes
Speaker 3: in federal court that will probably eventually make their way
Speaker 3: to the Supreme Court.
Speaker 2: There must be a lot of doctors sending abortion pills
Speaker 2: through the mail. Is there a reason why they went
Speaker 2: after that doctor in particular?
Speaker 3: I think it's largely just a function of what evidence
Speaker 3: they find. In the Texas case, a partner of an
Speaker 3: abortion patient who took her to the hospital when she
Speaker 3: thought she was experiencing complications went home found the pills
Speaker 3: which doctor Carpenter had prescribed. Remember at this point in time,
Speaker 3: New York wasn't allowing for anonymous prescriptions, and then reported
Speaker 3: this to local law enforcement, which led to the complaint
Speaker 3: filed against her In Louisiana, it seems to have been
Speaker 3: similarly coincidental. A woman ordered pills from doctor Carpenter for
Speaker 3: her daughter, and when the daughter took the pills when
Speaker 3: the mother wasn't home, she was worried about the bleeding
Speaker 3: she was experiencing and called nine to one one and
Speaker 3: law enforcement again found the pills with doctor Carpenter's name
Speaker 3: on them. So I think there will likely be a
Speaker 3: certain amount of randomness in terms of who's targeted in
Speaker 3: these kinds of cross border disputes, just depending on what
Speaker 3: law enforcement can actually uncover.
Speaker 2: And this month, Governor hokel signed a law that shields
Speaker 2: the identity of doctors in New York who prescribe abortion pills.
Speaker 2: Thanks so much for being on the show. Mary. That's
Speaker 2: Professor Mary Ziegler of UC Davis Law School. And that's
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
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