WEBVTT - Texas Supreme Court Weighs Exception to Abortion Ban 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.320 --> 0:00:16.160 It was heart wrenching, you know, telling these stories over 0:00:16.200 --> 0:00:19.400 and over again about the most traumatic thing that's ever 0:00:19.480 --> 0:00:23.520 happened to us, sharing our grief and our loss in 0:00:23.960 --> 0:00:25.880 brutal detail over and over. 0:00:27.120 --> 0:00:29.800 How close to dead do I have to be before 0:00:29.960 --> 0:00:31.840 I can fully access healthcare? 0:00:32.680 --> 0:00:36.080 Amanda Zarowski and Lauren Miller are two of the twenty 0:00:36.159 --> 0:00:39.600 women suing the state of Texas over its near total 0:00:39.640 --> 0:00:43.160 ban on abortions, which they say force them to continue 0:00:43.159 --> 0:00:47.640 their pregnancies despite serious risks to their health. The lawsuit 0:00:47.680 --> 0:00:50.519 is among the biggest challenges to abortion bands in the 0:00:50.600 --> 0:00:54.840 country since Roe v. Wade was overturned last year. The 0:00:54.920 --> 0:00:57.880 women are not seeking to repeal the state's abortion ban, 0:00:58.320 --> 0:01:01.720 but rather to get more clarity on when exceptions are 0:01:01.760 --> 0:01:05.440 allowed under the law. At oral arguments before the Texas 0:01:05.440 --> 0:01:10.080 Supreme Court on Tuesday, their attorney, Molly Dwayne, said, doctors 0:01:10.160 --> 0:01:12.880 don't know when they can provide emergency care. 0:01:13.240 --> 0:01:16.600 The abortion bans as they exist today subjects physicians like 0:01:16.640 --> 0:01:21.080 my clients to the most extreme penalties, imaginable life in 0:01:21.120 --> 0:01:24.560 prison and loss of their medical license. And while there 0:01:24.600 --> 0:01:27.600 is technically a medical exception to the bands. No one 0:01:27.640 --> 0:01:30.080 knows what it means and the state won't tell us, 0:01:30.480 --> 0:01:30.840 but a. 0:01:30.880 --> 0:01:34.600 Lawyer for the Texas Attorney General's Office, Beth Klusman, argued, 0:01:34.640 --> 0:01:36.720 the law is clear about the exceptions. 0:01:37.000 --> 0:01:39.320 The song Instar judgment is reasonable. You should be fine 0:01:39.400 --> 0:01:40.000 under this law. 0:01:40.360 --> 0:01:43.200 Joining me is Elizabeth Sepper, a professor at the University 0:01:43.240 --> 0:01:46.440 of Texas Law School. Liz tell us about the abortion 0:01:46.600 --> 0:01:47.520 law in Texas. 0:01:47.880 --> 0:01:51.480 In Texas, we have a lot of abortion laws. We 0:01:51.680 --> 0:01:56.000 have a trigger ban, we have SB eight that allows 0:01:56.080 --> 0:02:02.000 for civil suits against people who help us abortions, and 0:02:02.320 --> 0:02:06.240 we have a pre rogue criminal ban that is only 0:02:06.360 --> 0:02:12.360 partially in effect. And these laws ban abortion entirely, with 0:02:12.480 --> 0:02:17.679 the rare exception of emergency situations situations that the statue 0:02:17.720 --> 0:02:20.040 refers to as life threatening. 0:02:20.520 --> 0:02:23.440 Who are the plaintiffs in this law suit in what 0:02:23.520 --> 0:02:25.560 are they suing about? Specifically? 0:02:26.240 --> 0:02:31.840 The plaintiffs here are women who have experienced pregnancy loss 0:02:31.960 --> 0:02:35.960 or other emergent and life and health threatening conditions in 0:02:36.000 --> 0:02:39.640 their pregnancy. Some of the plaintiffs are currently pregnant and 0:02:39.680 --> 0:02:43.440 efface a high risk of potential complications, and some of 0:02:43.480 --> 0:02:48.120 the plaintiffs are physicians who are confronting patients every day 0:02:48.320 --> 0:02:51.600 who they have to bring to the brink of death 0:02:51.919 --> 0:02:55.640 before they can intervene under the Texas law. The plaintiffs 0:02:55.680 --> 0:02:59.880 prevailed in the trial court at this very preliminary stage, 0:03:00.160 --> 0:03:03.280 so what they got from the trial court was an 0:03:03.360 --> 0:03:07.800 interpretation of the Texas statutes that allows doctors to in 0:03:08.160 --> 0:03:13.800 good faith determine that there is an urgent need to 0:03:14.120 --> 0:03:19.720 act in order to avoid death or serious bodily harm 0:03:19.919 --> 0:03:20.959 to a woman. 0:03:21.960 --> 0:03:27.960 So they're not specifically attacking the abortion bands as unconstitutional. 0:03:28.000 --> 0:03:29.560 They're looking for guidance. 0:03:30.240 --> 0:03:32.880 The plaintiffs are looking for guidance as to what the 0:03:32.919 --> 0:03:37.360 statute means. The scope of what they're asking for is narrow. 0:03:37.520 --> 0:03:41.800 They aren't thinking to have the bands struck down as unconstitutional, 0:03:42.200 --> 0:03:46.680 but rather the clarification on how they work in emergency situations. 0:03:47.080 --> 0:03:50.320 The penalties for doctors who violate the abortion bands are 0:03:50.920 --> 0:03:55.440 so severe, from loss of their medical license to possibly 0:03:55.520 --> 0:03:59.720 life in prison. Have any doctors actually been sentenced or 0:03:59.720 --> 0:04:01.240 try under these laws yet? 0:04:01.720 --> 0:04:05.280 No, No one has been charged with violating the Texas 0:04:05.280 --> 0:04:08.200 abortion bands in large measure because we just aren't being 0:04:08.520 --> 0:04:11.560 abortions performed even in emergency situation. 0:04:12.200 --> 0:04:16.080 I have heard in other states as well that doctors 0:04:16.160 --> 0:04:20.360 are hesitant to perform an abortion even when there might 0:04:20.400 --> 0:04:24.159 be an emergency situation because of the penalties involved. 0:04:24.880 --> 0:04:27.520 Yes, the doctors are concerned by the bands because they 0:04:27.600 --> 0:04:31.240 risk losing their medical license, risk up to life in prison, 0:04:31.640 --> 0:04:36.400 really draconian penalties on top of that, right, they're not 0:04:36.640 --> 0:04:40.480 exactly sure how a prosecutor goes about proving that they've 0:04:40.560 --> 0:04:45.240 violated the abortion ban in these emergency situations. If a 0:04:45.320 --> 0:04:48.599 prosecutor can make out a case against them by simply 0:04:48.880 --> 0:04:54.120 bringing forward an expert who disagrees with how much the 0:04:54.200 --> 0:04:57.400 person's health or life was at risk, then they think 0:04:57.400 --> 0:05:01.800 there's just too much uncertainty that any given emergency abortion 0:05:02.000 --> 0:05:05.119 or life saving abortion that they in good faith believe 0:05:05.160 --> 0:05:07.640 they need to do to save the patient's life could 0:05:07.680 --> 0:05:09.040 result in charges. 0:05:09.520 --> 0:05:13.320 And so tell us what the argument of the plaintiffs is. 0:05:14.240 --> 0:05:18.400 The plaintiffs argue that the abortion bands lack clarity. There 0:05:18.600 --> 0:05:23.800 is inconsistent language across a number of the laws, and 0:05:23.839 --> 0:05:27.840 they say that they need guidance on how the law 0:05:27.920 --> 0:05:32.120 is meant to apply in emergent situations and what they 0:05:32.160 --> 0:05:35.640 prefer as The best interpretation of the law is that 0:05:35.800 --> 0:05:41.279 doctors can intervene when they, in good faith see a 0:05:41.400 --> 0:05:46.480 patient in a situation where her life and serious health 0:05:46.600 --> 0:05:49.799 risks are at stake, and that they need not wait 0:05:49.920 --> 0:05:53.400 until death is imminent in order to act on that 0:05:53.520 --> 0:05:54.720 good faith determination. 0:05:55.760 --> 0:05:59.240 Did some of the plaintiffs actually come up against a 0:05:59.279 --> 0:06:02.040 situation where their life was at risk and a doctor 0:06:02.160 --> 0:06:02.799 didn't act. 0:06:03.920 --> 0:06:09.080 Yes, many of the patients suffered really severe repercussions, including 0:06:09.120 --> 0:06:14.039 the named plaintiff, Amanda Zarowski, who became septic and spent 0:06:14.400 --> 0:06:18.560 days in the ICU as a result of being denied 0:06:18.760 --> 0:06:23.760 a medically necessary abortion for pre viable pregnancy. And as 0:06:23.839 --> 0:06:26.680 a result of that icy stay, she actually lost one 0:06:26.720 --> 0:06:31.520 of her fallopian tubes and so has much lower future fertility. 0:06:32.560 --> 0:06:35.360 So now let's go through some of the state's arguments, 0:06:35.720 --> 0:06:38.680 and one is that the state claims the women filing 0:06:38.720 --> 0:06:42.320 the suit don't have standing to file the suit. In 0:06:42.320 --> 0:06:44.880 other words, they don't have a stake in the outcome. 0:06:45.440 --> 0:06:46.599 Explain that argument. 0:06:47.400 --> 0:06:53.760 So the argument around standing shifts as circumstances changed. So 0:06:54.000 --> 0:06:57.520 the state of Texas says you can't bring a lawsuit 0:06:57.720 --> 0:07:01.720 unless you are pregnant and So the Center for Reproductive 0:07:01.800 --> 0:07:05.200 Rights has plaintiffs who are pregnant, and part of this 0:07:05.279 --> 0:07:07.919 is the notion that, well, if you're not pregnant, you 0:07:07.960 --> 0:07:11.120 can't possibly know that you'll be affected by the operation 0:07:11.240 --> 0:07:14.280 of this abortion ban. But even with pregnant patients, they 0:07:14.280 --> 0:07:17.360 then say, well, you can't possibly know that this pregnancy 0:07:17.480 --> 0:07:20.440 is going to threaten your life to a degree to 0:07:20.480 --> 0:07:24.160 which you might become eligible for these medical exceptions. They're 0:07:24.160 --> 0:07:26.920 also plaintiffs tho, who are doctors, so they are on 0:07:26.960 --> 0:07:30.720 a regular basis confronting patient to whom they have to 0:07:30.840 --> 0:07:34.840 deny care because they cannot act until their lives are 0:07:35.000 --> 0:07:38.360 in danger. So the standing argument just isn't strong. As 0:07:38.400 --> 0:07:42.000 part of this, Texas repeats over and over again. But 0:07:42.080 --> 0:07:47.080 it's not Texas's fault that people are denied abortions in 0:07:47.160 --> 0:07:51.840 emergent situations, but rather that it's the fault of doctors themselves, 0:07:51.920 --> 0:07:56.320 the individual doctors who are unwilling to act because of 0:07:56.360 --> 0:07:57.040 the statute. 0:07:57.520 --> 0:08:02.880 And just as Jeff Boyd seemed a little incredulous about 0:08:02.880 --> 0:08:04.720 the state's standing argument. 0:08:05.240 --> 0:08:08.840 Your position is that in order to challenge, to seek 0:08:08.880 --> 0:08:12.360 the kind of clarity that these plaintiffs are seeking, you 0:08:12.480 --> 0:08:16.360 have to have a woman who has some who is pregnant, 0:08:16.560 --> 0:08:21.080 who has some health condition that she believes places her 0:08:21.200 --> 0:08:24.360 life at risk or impairment to a major bodily function, 0:08:25.160 --> 0:08:29.200 but her doctor says, I don't think it does, and 0:08:29.280 --> 0:08:31.640 she has to then sue the doctor and maybe the 0:08:31.680 --> 0:08:35.920 Attorney general at that point, and then she would have standing. 0:08:36.080 --> 0:08:38.120 I don't know if that would be the only circumstance, 0:08:38.440 --> 0:08:40.800 but you would at least then know that the law 0:08:40.920 --> 0:08:44.000 is the problem and not the doctor refusing to perform 0:08:44.040 --> 0:08:44.600 an abortion. 0:08:45.080 --> 0:08:47.920 And the Assistant Attorney General at one point made this 0:08:48.800 --> 0:08:53.400 very stark statement. She said, a woman is bleeding or 0:08:53.440 --> 0:08:56.920 has amniotic fluid running down her legs, then the problem 0:08:57.000 --> 0:09:00.000 is not with the law, that is with the doctors. 0:08:59.800 --> 0:09:02.400 The state wants women to sue the doctors. 0:09:03.080 --> 0:09:06.560 Yes, so this was an option that came up over 0:09:06.600 --> 0:09:08.880 and over again in the oral argument before the Texas 0:09:08.920 --> 0:09:12.520 Supreme Court. Is that when a person is in an 0:09:12.600 --> 0:09:18.000 extreme situation where they might be eligible under the exceptions 0:09:18.000 --> 0:09:20.720 to Texas abortion bands, what they should really do is 0:09:20.840 --> 0:09:24.040 see physicians who are unwilling to act to treat them. 0:09:24.520 --> 0:09:27.600 As the plaintiffs lawyer pointed out, this is a highly 0:09:27.720 --> 0:09:32.160 unrealistic view and impractical for patients in these scenarios to 0:09:32.240 --> 0:09:34.480 go out and shop for an attorney who can file 0:09:34.880 --> 0:09:38.959 an emergency motion in state court. And on top of that, 0:09:39.160 --> 0:09:43.080 some of these plaintiffs are not pregnant people or people 0:09:43.080 --> 0:09:47.280 who are concerned about future pregnancies. Rather, they are physicians, 0:09:47.480 --> 0:09:51.280 and so the physicians standing would seem to be independent 0:09:51.400 --> 0:09:55.240 of the idea that plaintiffs should more properly be pointing 0:09:55.280 --> 0:09:57.960 the finger at doctors whose hands are tied by the law. 0:09:58.520 --> 0:10:01.840 And the state is also arguing that the law is clear. 0:10:02.679 --> 0:10:07.280 Yes, the state is arguing that the law is clear, 0:10:07.640 --> 0:10:12.839 though the state has been unwilling to explain the boundaries 0:10:12.920 --> 0:10:16.760 of the law right. Part of what's prompting this lawsuit 0:10:17.280 --> 0:10:20.720 is that, unlike in other states where the state Medical 0:10:20.760 --> 0:10:27.520 Board has offered specific guidance to physicians, the Texas Medical 0:10:27.520 --> 0:10:30.440 Board has been totally silent here, and nor has the 0:10:30.440 --> 0:10:34.160 Attorney General issued specific guidance. And one would think that 0:10:34.200 --> 0:10:37.280 if the law were actually clear, right, it allows a 0:10:37.320 --> 0:10:40.440 physician to intervene or we're dealing with premature rupture of 0:10:40.520 --> 0:10:44.960 the membranes, for instance, or molar pregnancy or other scenarios 0:10:44.960 --> 0:10:48.680 that can commonly occur in pregnancy and threaten lives, that 0:10:48.720 --> 0:10:52.040 they would say so, and they have just remained silent 0:10:52.120 --> 0:10:54.360 both the Board and the Attorney General. 0:10:55.720 --> 0:10:59.000 Is the state's position that women have to carry a 0:10:59.080 --> 0:11:02.240 feet as to turn even if the fetus is not 0:11:02.520 --> 0:11:06.240 viable or if the pregnancy presents a risk to the mother. 0:11:07.320 --> 0:11:10.760 The state's position is that the exception is extremely narrow, 0:11:10.840 --> 0:11:14.360 so it applies to threats to life, but presumably would 0:11:14.400 --> 0:11:16.559 not apply to fetal anomaly. 0:11:16.720 --> 0:11:19.560 Yes, that's right, and I believe one of the women 0:11:20.040 --> 0:11:22.440 had to carry a fetus to term even though she 0:11:22.520 --> 0:11:24.040 knew that it would not survive. 0:11:24.840 --> 0:11:27.240 Yes, So part of the argument here is on that 0:11:27.440 --> 0:11:31.280 particular score is that the state isn't achieving any state 0:11:31.400 --> 0:11:36.440 interest when it makes women carry the term pregnancy is 0:11:36.520 --> 0:11:43.559 that are destined to result in stillbirth or a very momentary, 0:11:43.720 --> 0:11:46.760 hours long life for the baby. 0:11:47.720 --> 0:11:51.360 Coming up next, where the Texas Justice is leaning in 0:11:51.400 --> 0:11:54.920 any direction? I'm June Grosso. When you're listening to Bloomberg, 0:11:56.000 --> 0:11:59.160 I've been talking to Professor Elizabeth Zepper of the University 0:11:59.160 --> 0:12:03.920 of Texas School about oral arguments before the Texas Supreme 0:12:04.000 --> 0:12:08.800 Court on that state's abortion ban. The Texas Supreme Court 0:12:08.880 --> 0:12:14.120 consists of nine Republican appointed judges. Did you see five 0:12:14.200 --> 0:12:17.480 of them leaning in one direction or another or did 0:12:17.520 --> 0:12:20.360 they seem split? What was your take on the arguments? 0:12:20.760 --> 0:12:24.720 The justices seemed all over the map, honestly, And I 0:12:24.760 --> 0:12:27.679 don't mean that as a prediction that the plaintiffs are 0:12:27.720 --> 0:12:31.360 going to win here on the merits or across the board, 0:12:31.800 --> 0:12:35.560 but rather that there seemed to be some justices who 0:12:35.679 --> 0:12:39.319 wanted to find a way to deny standing to the plaintiffs, 0:12:39.320 --> 0:12:43.079 perhaps through this argument that plaintiffs should just see doctors 0:12:43.120 --> 0:12:47.719 and Texas is not really at fault, as the state claims, 0:12:48.000 --> 0:12:53.400 But others expressed real confusion over the standing arguments and 0:12:53.480 --> 0:12:58.040 how it would be possible to deny standing to the plaintiffs. 0:12:58.400 --> 0:13:01.240 And I think they expressed some frost with the state 0:13:01.520 --> 0:13:04.920 right because here, the reason we're at the Texas Supreme Court, 0:13:04.960 --> 0:13:08.319 the reason we're in the court system, is because the 0:13:08.360 --> 0:13:12.719 Texas Medical Board has provided no guidance, because the legislature 0:13:13.280 --> 0:13:17.680 flowfully drafted an abortion van that can't be understood by 0:13:17.840 --> 0:13:21.719 the healthcare providers subject to its terms. And so I 0:13:21.760 --> 0:13:23.960 think there was a lot of frustration on that score 0:13:24.360 --> 0:13:25.679 as to what they were supposed to do. 0:13:25.800 --> 0:13:25.959 Right. 0:13:26.160 --> 0:13:28.360 Once they find standing, then they are left with the 0:13:28.440 --> 0:13:32.040 question of how to interpret the statutory language. And depending 0:13:32.040 --> 0:13:34.640 on how they interpret it, they then have to come 0:13:34.679 --> 0:13:39.320 to the plaintiff's constitutional arguments that if the statute doesn't 0:13:39.400 --> 0:13:43.760 allow physicians to act to save health and life in 0:13:43.840 --> 0:13:48.680 emergent situations, then it violates the Texas Constitution. We didn't 0:13:48.720 --> 0:13:51.720 see a whole lot of uptake of the constitutional argument, 0:13:51.760 --> 0:13:55.079 but there were some questions about in what way the 0:13:55.520 --> 0:14:01.320 Constitution would possibly reach the Texas abortion van medical dat So. 0:14:01.520 --> 0:14:04.840 If the Texas Supreme Court sides with the state, is 0:14:04.880 --> 0:14:05.959 the case over. 0:14:06.320 --> 0:14:11.280 Possibly right or very early on in the litigation if 0:14:11.480 --> 0:14:13.960 they're at the court on a preliminary in junction. So 0:14:14.360 --> 0:14:18.000 really the court is just determining whether the preliminary injunction 0:14:18.120 --> 0:14:22.240 ruling should stand. But what they say could essentially end 0:14:22.240 --> 0:14:25.840 the case. And certainly, if the Texas Supreme Court determines 0:14:25.880 --> 0:14:28.520 that these plaintiffs don't have standing, then yes, the case 0:14:28.600 --> 0:14:30.040 is dead on arrival. 0:14:30.840 --> 0:14:35.440 And if the Texas Supreme Court denies the state's request 0:14:35.520 --> 0:14:37.920 to dismiss the case, then it goes back to the 0:14:37.960 --> 0:14:39.840 district court for a full trial. 0:14:40.480 --> 0:14:42.960 Yes, we're very early on. So it goes back within 0:14:43.000 --> 0:14:46.240 the Texas state system to the Texas Trial judge for 0:14:46.360 --> 0:14:47.440 a trial on the merit. 0:14:47.800 --> 0:14:50.960 Just this month, thirteen groups filed the Meeks briefs. What 0:14:51.240 --> 0:14:54.600 do you think are the implications for this decision in 0:14:54.640 --> 0:14:55.880 and out of Texas? 0:14:56.200 --> 0:14:59.960 The implications are going to be felt first and foremost 0:15:00.240 --> 0:15:04.040 in Texas. The arguments that the plaintiffs are making as 0:15:04.040 --> 0:15:08.160 a matter of constitutional law are about the Texas Constitution, 0:15:08.720 --> 0:15:11.440 but it is part and parcel of a phenomenon we've 0:15:11.480 --> 0:15:18.080 seen in state courts so Oklahoma, North Dakota, Indiana have 0:15:18.360 --> 0:15:23.600 determined that their abortion bans has to have a life 0:15:23.800 --> 0:15:27.640 or a health exception because otherwise they violate protections on 0:15:28.040 --> 0:15:32.560 life within the state constitution. So the Texas Supreme Court 0:15:32.640 --> 0:15:37.240 could here agree and further this trend toward recognizing some 0:15:37.600 --> 0:15:40.480 limitations on how far abortion bans can go. 0:15:40.920 --> 0:15:45.040 And has the state Supreme Court made any rulings recently 0:15:45.600 --> 0:15:46.760 on abortion issues? 0:15:47.440 --> 0:15:54.000 So the Texas Supreme Court has recently been involved in 0:15:54.040 --> 0:15:57.560 the back and forth over SB eight, for example, But 0:15:57.760 --> 0:16:01.320 what they've done there is usually take on relatively narrow 0:16:01.800 --> 0:16:05.440 questions with regard to SBA, the question was simply around 0:16:05.520 --> 0:16:09.360 whether the licensing board could be sued, and the Texas 0:16:09.400 --> 0:16:12.720 Supreme courts that know and therefore killed the SBA. What 0:16:12.880 --> 0:16:16.000 was left of the SB eight lawsuit after it left 0:16:16.080 --> 0:16:19.360 the United States Supreme Court. So not a lot of 0:16:19.400 --> 0:16:23.840 activity on the merits of protections for abortion in the 0:16:23.840 --> 0:16:24.560 state of Texas. 0:16:24.880 --> 0:16:27.360 Why are there so many abortion laws? Why isn't there 0:16:27.480 --> 0:16:29.920 one comprehensive law. 0:16:30.680 --> 0:16:34.040 Part of it is that we had a series of 0:16:34.320 --> 0:16:39.120 laws that predate DOBS, which overturned or a viewwade. So 0:16:39.280 --> 0:16:43.160 we have laws that regulate abortions for minors, we have 0:16:43.320 --> 0:16:47.440 laws around informed consent, we have a number of abortion 0:16:47.800 --> 0:16:52.000 restrictions that pre date our total bands, and then we 0:16:52.200 --> 0:16:56.840 have our pre road Statute, for instance, which long predates 0:16:57.480 --> 0:17:00.520 DOBS in the contemporary moment. So there's just differences in 0:17:00.680 --> 0:17:03.920 language that show up when you look across all of 0:17:04.000 --> 0:17:04.920 the abortion laws. 0:17:05.600 --> 0:17:11.120 We've seen backlash against abortion bands in other red states. 0:17:12.160 --> 0:17:15.360 Is there anything like that brewing in Texas? 0:17:16.320 --> 0:17:21.600 We've seen very minor developments. The Texas state legislature this 0:17:22.040 --> 0:17:29.440 year enacted in extremely narrow affirmative defense to the abortion bans, 0:17:29.640 --> 0:17:34.119 recognizing that premature rupture of the membranes, for instance, and 0:17:34.280 --> 0:17:38.920 ectopic pregnancies of all kinds should not be within the 0:17:39.280 --> 0:17:42.960 abortion ban. But it's an affirmative defense, so in fact 0:17:43.160 --> 0:17:46.160 it applies pretty narrowly. Doctors would have to be willing 0:17:46.680 --> 0:17:50.439 to face criminal charges or face revocation of their medical 0:17:50.520 --> 0:17:54.720 license and then raise a defense that this person was 0:17:54.800 --> 0:17:59.840 experiencing a defection ectopic pregnancy, for example. So pretty near 0:18:00.320 --> 0:18:02.359 in terms of the changes we're seeing. We do not 0:18:02.680 --> 0:18:06.000 have a process by which the people can put on 0:18:06.359 --> 0:18:11.200 the ballot a constitutional amendment that might protect reproductive rights 0:18:11.320 --> 0:18:13.520 or do away with some of the manifestations of our 0:18:13.560 --> 0:18:14.280 abortion bands. 0:18:15.000 --> 0:18:19.160 And finally, the state really harped on the standing argument. 0:18:19.760 --> 0:18:22.159 Do you think the court will at least find that 0:18:22.400 --> 0:18:24.320 the plaintiffs here have standing. 0:18:24.520 --> 0:18:27.640 Whether it's the doctors have standing, even if the women don't. 0:18:27.800 --> 0:18:31.439 It's almost impossible to imagine a scenario where you can't 0:18:31.880 --> 0:18:36.040 count the vote to say at least one plaintiff, which 0:18:36.119 --> 0:18:39.359 is all they need, has standing, because standing is a 0:18:39.400 --> 0:18:42.400 principle that's going to apply across different areas of law, 0:18:42.440 --> 0:18:44.679 and I don't think the Texas Supreme Court is going 0:18:44.760 --> 0:18:48.320 to be eager to totally shut the courtroom doors to 0:18:48.800 --> 0:18:52.520 plaintiffs in a lot of different types of lawsuits, not 0:18:52.800 --> 0:18:54.360 just abortion related lawsuits. 0:18:54.680 --> 0:18:56.919 It'll be a while before we hear from the Texas 0:18:57.000 --> 0:19:01.320 Supreme Court. They're expected to rule by June. Thanks so much, Liz. 0:19:01.600 --> 0:19:04.840 That's Professor Elizabeth Zepper of the University of Texas Law 0:19:04.920 --> 0:19:08.760 School coming up next. Double Jeopardy at the Supreme Court. 0:19:09.040 --> 0:19:12.520 I'm June Grosso and you're listening to Bloomberg. A majority 0:19:12.560 --> 0:19:15.919 of Supreme Court justices seemed to agree that a Georgia 0:19:16.040 --> 0:19:20.200 man cannot be prosecuted twice for murdering his adoptive mother 0:19:20.760 --> 0:19:23.760 after a jury issued verdicts that found him both sane 0:19:23.960 --> 0:19:28.159 and insane. The jury found Damien mc calrath not guilty 0:19:28.240 --> 0:19:32.400 of malice murder by reason of insanity for stabbing Diane 0:19:32.480 --> 0:19:36.159 McIlrath over fifty times in twenty twelve, but he was 0:19:36.320 --> 0:19:40.920 found guilty, though mentally ill, of felony murder and aggravated assault. 0:19:41.520 --> 0:19:45.680 The Georgia Supreme Court ruled that wasn't legally possible throughout 0:19:45.760 --> 0:19:49.200 the verdicts and ordered a new trial, but McIlrath argues 0:19:49.240 --> 0:19:52.600 that under the Fifth Amendment's double jeopardy clause. He can't 0:19:52.600 --> 0:19:55.440 be prosecuted again for the charge he was acquitted of. 0:19:56.080 --> 0:19:58.480 Justice Neil Gorsuch joined some of the members of the 0:19:58.600 --> 0:20:02.800 court's liberal wing in expressing the importance of respecting a 0:20:02.920 --> 0:20:04.400 jury's verdict of acquittal. 0:20:05.119 --> 0:20:09.960 The two hundred and thirty years in this country's history 0:20:10.320 --> 0:20:15.080 we have respected acquittals without looking into their substance and 0:20:15.200 --> 0:20:19.120 without looking at how they fit with other counts, and said, 0:20:20.000 --> 0:20:22.880 a jury is a check on judges, it's a check 0:20:23.000 --> 0:20:26.080 on prosecutors, it's a check on overreach. It's part of 0:20:26.160 --> 0:20:27.359 our democratic system. 0:20:28.040 --> 0:20:29.840 And we do not ever. 0:20:31.280 --> 0:20:34.679 Talk about whether they make sense to us. They may 0:20:34.720 --> 0:20:38.840 be products of compromise, they may be inconsistent with verdicts 0:20:38.880 --> 0:20:42.040 on other counts. We don't question them. And that this 0:20:42.240 --> 0:20:45.400 is a first time this issue has arisen here. Shouldn't 0:20:45.400 --> 0:20:46.119 that tell us something? 0:20:46.640 --> 0:20:50.080 Joining me is former federal prosecutor George Newhouse of Richard's 0:20:50.160 --> 0:20:55.920 Carrington double jeopardy. I think everyone has some idea, perhaps incorrect, 0:20:56.040 --> 0:20:59.800 of what double jeopardy means from the movies and TV. 0:21:00.160 --> 0:21:01.680 Tell us what it means. 0:21:02.600 --> 0:21:05.600 The double jeopardy clause of the Constitution and particularly the 0:21:05.640 --> 0:21:08.960 Fifth Amendment is very clear. It basically says that the 0:21:09.000 --> 0:21:12.440 government gets one shot, one chance to convict the defendant 0:21:12.920 --> 0:21:16.480 of a crime, and if the jury finds a defendant 0:21:16.560 --> 0:21:20.920 not guilty, then the government is unable to ask the 0:21:21.000 --> 0:21:24.439 judge for a retrial. It gets one chance. There are 0:21:24.520 --> 0:21:27.399 various exceptions to it. A big one, for example, is 0:21:28.119 --> 0:21:32.120 the state is unsuccessful the federal government. A different sovereign 0:21:32.400 --> 0:21:35.320 can basically bring the defendant back up on the same charge, 0:21:35.359 --> 0:21:38.320 only this time of federal charge, and double jeopardy doesn't apply. 0:21:39.240 --> 0:21:41.600 But if it's the same sovereign here it's the state 0:21:41.640 --> 0:21:45.200 of Georgia, they get one chance. And the jury in 0:21:45.320 --> 0:21:48.680 this case apparently returned what appeared to be an inconsistent 0:21:48.840 --> 0:21:52.960 verdict between three counts. The state is arguing that that 0:21:53.040 --> 0:21:55.520 should be an exception to the double jeopardy rule, and 0:21:55.760 --> 0:21:57.520 that is an interesting legal question. 0:21:58.000 --> 0:22:00.240 Yeah, so tell us a little bit more about the 0:22:00.320 --> 0:22:01.320 different verdicts here. 0:22:01.880 --> 0:22:05.760 Happy to So, the basic facts are this is twenty twelve. 0:22:06.480 --> 0:22:11.280 A delusional defendant, Damian Mcroff, believed that his mother was 0:22:11.320 --> 0:22:14.600 trying to poison him and as a result, stabbed her 0:22:14.680 --> 0:22:17.000 to debt. He of course, then washed up called nine 0:22:17.000 --> 0:22:20.160 to eleven, told the dispatcher what he'd done and why 0:22:20.280 --> 0:22:22.920 he was right to have done it. So clearly he 0:22:23.240 --> 0:22:25.600 went to trial on three counts, by the way, and 0:22:25.680 --> 0:22:28.119 that's where this comes up to the three separate charges. 0:22:28.240 --> 0:22:31.960 The first one in under Georgia law is called malice 0:22:32.000 --> 0:22:34.600 of murder, which is equivalent to a first degree murdered 0:22:34.640 --> 0:22:37.120 I've always the most serious charge, the one that typically 0:22:37.200 --> 0:22:40.160 can carry him capital punishment. And then there were two 0:22:40.240 --> 0:22:43.399 other counts, a felony murder rule, which means that he 0:22:43.560 --> 0:22:47.120 killed someone in connection with committing a felony, in this case, 0:22:47.280 --> 0:22:51.440 an aggravated assault. And so the third charge was aggravated assault. 0:22:51.720 --> 0:22:55.199 And you might ask why to prosecutors bring three separate 0:22:55.320 --> 0:22:58.000 charges when there's really one one act occur to killing, 0:22:58.280 --> 0:23:01.480 And they do that because sometimes they want to present 0:23:01.560 --> 0:23:04.679 the jury with the option of convicting on a lesser 0:23:05.359 --> 0:23:07.680 offense if they think they might have a problem with 0:23:08.000 --> 0:23:10.520 the principal offense. And that's exactly what happened here. The 0:23:10.640 --> 0:23:15.520 jury deliberated, and of course the defense was he was insane, 0:23:15.720 --> 0:23:18.879 so he lacked the criminal intent to commit murder, and 0:23:19.000 --> 0:23:21.920 the jury deliberated and found him not guilty by reason 0:23:22.000 --> 0:23:24.959 of insanity on the first count, saying he was crazy, 0:23:25.600 --> 0:23:28.440 but on counts two and three, the felony murder and 0:23:28.560 --> 0:23:31.280 the aggregated assault, the jury found that he was sane 0:23:31.680 --> 0:23:35.119 and convicted him. The State of Georgia, unhappy with that, 0:23:35.600 --> 0:23:38.040 went to the court and said, well, we need a 0:23:38.080 --> 0:23:41.200 new trial, and the court said why, and the state said, 0:23:41.240 --> 0:23:45.520 because these verdicts are logically inconsistent. You can't be crazy 0:23:45.680 --> 0:23:48.440 on one count, the worst count, but saints on the 0:23:48.480 --> 0:23:50.760 other counts, And that went all the way to the 0:23:50.840 --> 0:23:53.960 Georgia Supreme Court, which agreed. The Georgia Supreme Court said 0:23:54.160 --> 0:23:57.639 the verdicts on these two different counts are logically repugnant, 0:23:58.240 --> 0:24:01.840 and as a result it vacated the not guilty verdict 0:24:02.080 --> 0:24:04.600 and told the state that they are free to retry him. 0:24:05.000 --> 0:24:07.040 And that's what went up to the Supreme Court whether 0:24:07.119 --> 0:24:10.560 there should be an exception to the double jeopardy clause, 0:24:10.680 --> 0:24:15.520 and the exception would allow if the verdicts were logically inconsistent, 0:24:16.000 --> 0:24:19.240 which jury verdicts are, by the way, frequently, they'd be 0:24:19.240 --> 0:24:20.199 allowed to retry him. 0:24:20.720 --> 0:24:26.560 George Prosecutors are normally not allowed to appeal acquittals are they, 0:24:26.720 --> 0:24:28.600 I mean, how do they even get to the Georgia 0:24:28.640 --> 0:24:29.359 Supreme Court. 0:24:29.840 --> 0:24:33.280 Well, that's a great, great question. So clearly what happened 0:24:33.320 --> 0:24:35.840