Abortion Rights in Jeopardy at Supreme Court

years of precedent. The Mississippi Lawn issue banns abortion in almost all cases after fifteen weeks of pregnancy. Joining me is Stephen Vladdock, a constitutional law professor at the University of Texas Law School. Steve, what does the court taking this case suggest to you? I mean, I think it suggests that the new conservative majority is ready to dramatically narrow the scope of the constitutional rights to obtain an abortion that the Court of course recognized and roversus way

then preserved in Planned parenthod versus Casey. This is going to be, I think the most important abortion decision the Supreme Courts handed down at least since Casey. Tell us about Mississippi's law. Ye, so the law at issue here um is effectively a ban on any and all abortions starting in the fifteenth the week of pregnancy, no matter the reason, no matter the justification. Basically, doctors may not perform abortions. Women may not receive abortion if the pregnancy

is at least fifteen weeks along. And of course that's a pretty significant departure from Rowan Casey, which had set the line at viability at the point at which a fetus is theoretically capable of surviving outside the womb. That's usually closer to twenty maybe even twenty two weeks. So you know, the law is basically moving up the window where abortions are legal, compressing it dramatically, and basically Darren the Supreme Court to either reaffir Casey or hold that

states are allowed to do this. So the lower courts ruled that the law was unconstitutional, and federal Judge Carlin Reeves wrote, the state chose to pass a law it knew was unconstitutional to endorse a decades long campaign fueled by national interest groups to ask the Supreme Court to overturn Roe v. Wade. Do you agree that that was

the reason why Mississippi enacted the law. Absolutely. I mean, it's not a coincidence that the law was enacted shortly after Justice Kennedy announced that he was retiring from the Supreme Court. But June look at the appeal and the Fifth Circuit. Mississippi didn't even request oral argument when it appealed Judge Reaves's decision to the Fifth Circuit because it knew that based on the Supreme Court precedents as they

currently stand, this law is clearly unconstitutional. And that's because under Casey, the state may not categorically ban pre viability abortions. It's exactly what the Mississippi law does for abortions carried out between the fifteenth week of pregnancy and viability. This was all along in effort to get this case in

the Supreme Court June. The big difference is that although the law was initially motivated by the retirement of Justice Kennedy, we of course now also have the replacement of Justice Ginsburg by Justice Sammy Coney Barrett. The Fifth Circuit affirmed the judge of decision, and the Fifth Circuit is considered perhaps the most conservative circuit in the country. Oh I

don't even think that's in question. But the sister could recognized, as I think everybody else does, that there's no way to reconcile Mississippi's law with the existing Supreme Court precedence with rowan casey. I think, June, that's why so many people were waiting to see what the Supreme Court did with this case. They would have been well within their rights to just deny certain there's no split in the lower courts. This is an issue that the Fifth Circut

thought was compelled by existing Supreme Court precedent. And that's why the grant is such a big story, because the grant is the Supreme Court saying we didn't have to take this case. We know you only brought this case to ask us to either overrule or dramatically narrow Row, and we're going to do that. So the were deferred acting on this case since late September. What do you read into that? You know, it's a great question, June.

This case was relisted is the technical term? I think over a dozen times from the dust of this conference. I don't know what the answer is. I mean, I think it's unusual to see a case relisted like that. So many times and then granted. Usually that's a sign that someone is the senting from a denial of sert. So there's no good, obvious explanation for why this case was held for so long, other than perhaps that the

Court just wanted to hold it for next term. But even then, the Court could have granted it as early as April, even March, and it still would have been on pace for next term. So I'm sure there's an inside story for this June, but it's not one that, at least at the moment, will trivy too. In its appeal, Mississippi argued that viability is not an appropriate standard for assessing the constitutionality of a law regulating abortion, and is

that what the justices agreed to consider? The viability So there are three questions presented in the petition, and the only one the court granted was whether pre viability bands like the one Mississippi has put out there are per se unconstitutional under a row in Casey. That's why the Court could seeoretically rule from Mississippi without over ruling Row.

They could say, you know, no, they're not per state unconstitutional, but they're also not per state constitutional, and that would leave at least something left to Row, but it's worth stressing justice. Blackman's opinion in Row, which is often maligned but seldom read, spends a lot of time explaining why viability is irrelevant inflection point. And Blackman's argument is that viability is the point at which a fetus is capable

of surviving outside the womb. Therefore, it's the point which the state's interest in protecting the life of the fetus can be, you know, sort of separated from the state's interest is protecting the health of the pregnant woman, because up to that point, the fetis depends upon the present woman for everything necessary to the life. And so that

was the animating premise of Row. The court could theoretically limit that without Row, but any incursion at this point it's going to be a dramatic restriction of a woman's right to choose. And yet the confirmation hearings of the last three gentice is appointed by President Trump, they all said that Roe v. Wade was established precedent. Well, I think we know exactly how far you can take those statements.

There's a reason June is why abortion rights groups is as an ominous sign and why anti abortion groups to this as a huge victory already just from the grant. This is not a case where the grant is at all equivocal as to what the Court's going to do. There's no circuit split to resolve. There's no messy question

that the lower courts clearly got wrong. This is a case that has been designed from the moment the law is passed to prompt to the new conservative court to read it at row, and along the way the court got even more conservative. So Amy Coney Barrett isn't even on the bench for a year yet, and we've often talked before about Chief Justice John Roberts liking to do things incrementally. Are you surprised that the Conservatives are moving so fast and taking this case. No, because Chief as

Roberts isn't an important vote anymore. And I think the marginalization of the Chief Justice is something we're seeing a lot towards the end of this term. That FA's that the Court took this massive, that an amendment case a couple of weeks ago for next term. But FA's that the Court is taking this case some of the other things the Court is doing. I mean, I think June, this is much much less the Roberts Court than the

court we saw as recently as a year ago. And I think insofar as the median vote now is Brett Kavanaugh or Neil Gorstish or maybe even Emmy Coney Barrett, that's the court that's going to be I think, a lot more aggressive and a lot more willing to sort of brush aside concerns about eroding their institutional legitimacy by moving against precedent thus quickly just in taking this case. And if they rule in favor of Mississippi's law, will that give new fuel to those who want to pack

the court. It certainly will be invoked as yet another reason why, you know the Supreme Court should be extended. If you see my six to three or even a five to four decision that dramatically limits Row. Yeah, I'm sure that will be yet a further reason. But you know, June, we were already heading this way. I think even before

Jessice Ginsburg died. I mean, I think, you know, this case is a good example of how conservatives understood from the get go that Justice Kavanaugh replaced him Justice Kennedy was going to be a huge opportunity to remake a series of doctrines. We saw another one actually in another decision the Court issue today about the retroactivity of a

new interpretation of the sixth Amendment. So you know, I think, yes, it will be fodder for the court packing advocates, but you know, in many respects, the real fadder is not any individual decision June, but the overall pattern. If the Court does reverse Row, could we reach a point where laws and states that protect abortion could be found unconstitutional?

I don't think so, because that's the flip side of the coin, and I think what we're heading for is very much the world that we saw before Row, where there's just a wild divergence in states laws, and where mostly blue states are going to have pretty strong protections for abortions, perhaps all the way up to viability, maybe even in some cases pass viability, and that red states are going to go as far as they possibly can

to cut off access to abortions. And so it's just gonna be a tale of two legal regimes where women in blue states will have access to abortions and women in red states principally won't. Mississippi was arguing about at what point the fetus can feel do you expect to hear those kinds of arguments at the Supreme Court, the sort of clinical approach. I'm sure we will. I mean, because I think, you know, the anti abortion groups understand the states here, and they understand that they finally have

the court. They want um something that they've been you know, I mean, June, we're looking, you know, we're almost fifty years right into the fight to get rid of Row. And from their perspective, I think you know, this is all hands on deck. Every possible argument about why you know, abortion in general is problematic, about why states should be allowed flexibility in deciding where the deadline isn't ought to

be for obtaining a legal abortion. I mean, I think you know, if there's an argument out there, it's going to be made. And you know, this is already we're already looking at the term next term that chasing up to be a pretty blockbuster term. This is going to be one of the big picture cases, no matter what else is added. Tell us about some of the blockbuster

cases next term. I mean, there's the Second Amendment case that there's a good that we're going to have some pretty important affirmative action cases before the Court next term. You know, if there are challenges to any of the Biden administration's major policies, and you'll see those giving the Sucreme Court next term. So it's gonna be quite quite a year. The three very conservative justice is appointed by President Trump will really make the difference in this case

and so many other cases. It is often said of John Adams, who also served one term as President UM, that his most important legacy was who we put on the Supreme Court. And for all of the sort of short term damage Trump did to our system, I think is no question that his long term legacy, at least constitutionally, is going to be, you know, the three justices he put on the Court. Thanks for being the Bloomberg Law Show, Steve. That's Professor Stephen Vladdock at the University of Texas Law School.

Last month, Justice Stephen Bryer rejected the characterization of the Supreme Court as conservative. I hope and expect that the Court will retain its authority, but that authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics. But by adding major abortion and gun rights cases to its docket, the Supreme Court is offering hints of the kind of

paradigm shift that conservatives have long been hoping for. Joining me as Bloomberg, new Supreme Court reporter Greg store Greig, this term has been a little low key. Will next term be any different? It will be very different. June. We all already have two of the biggest hot button issues the country faces on the docket for next term. That's gun rights and abortion, and we could well get

an affirmative action cases. Well. Next term really looks to be the one where we find out just how conservative the Supreme Court is. You spoke to Professor Leo Littman of the University of Michigan, and she said, there are certain things you get a point to do, and for movement conservative lawyers, that's limit or overrule Row, expand the Second Amendment, and invalidate affirmative action. So is this what conservatives have been waiting for from the Supreme Court? It

absolutely is. And you know, Roge Wade is kind of the holy grail for the conservative legal movement. It's the decision that so many of them think was horribly wrong and they'd like to see overturned. And up until very recently, that didn't seem like anything more than a pipe dream, but now with the six three conservative court, it's at least a real possibility to be discussing. Now the Court

will still have to overcome this big hurl up. Starry decises this idea that the Court that's like to disturb its precedence, and a couple of the key justice is John Roberts and Brett Kavanaugh. I have talked a lot about story disizes, but at least that's back in the mix now. As you know, it takes four votes in order for the Justice to take a case. Any Coney Barrett has only been on the court for seven months and we're now seeing the court taking these cases. Is

she likely the fourth vote? It sure seems like she has made a difference. Now. Of course, the Court doesn't tell us who voted to take up a case, and there's certainly a dynamic there that there are times when even though four justices might want to take up an issue, if they're not sure about getting the stiff justice on their side, they might not be willing to grant review

to a case. Here now the conservative wing of the Court is much stronger, and regardless exactly which four of them voted to grant certain the idea that a mean Coney Barrett there certainly have to be giving the anti abortion side a lot more confident that they will ultimately prevail when the Supreme Court rules in this case. And tell us how she seemed to make a difference when the Court was considering emergency appeals from churches fighting the

pandemic restrictions. That's the area where we have so far seen the most concrete movement on this court in all these emergency cases where churches were saying, hey, these restrictions were being subject to in terms of capacity limits and things like that are stricter than say, the retail store down the street, and the Supreme Court has been very,

very receptive to those. And we've seen the difference because some of those came up before Amy Coney Barrett joined the Court, and John Roberts, the Chief Justice, was at times siding with the liberal wing and saying we need to give a lot of deference to officials when they're setting out these health rules. And after she joined the court that changed, so in that area religious rights, she

seems to have made a very big difference. Just as stress, no one can say how the Court will rule in these cases, but explain how just taking them indicates and intent to change the law. If there was a solid majority on the Court to say we do not want to disturb, say the abortion rights precedents, it would have been very easy for the Court just to say, no,

we're not going to take this appeal. And they didn't do that, and it would be really strange if they decided to take it up but don't have a majority of the Court that is at least very seriously considering

watering down or even overturning those key abortion precedents. So now the Second Amendment case, my Justice Brett Kavanaugh replacing Justice Anthony Kennedy, have anything to do with the Court taking that case, or are there now so many Second Amendment rights advocates sort of on the Court that we don't know well, we know that Justice Kavanaugh has said in a couple of cases last term that the Court didn't take up. He has said, I think the Court

needs to take up more of these cases. I am concerned that lower courts are not applying our gun rights precedents strongly. And and that's not the kind of outward sign that Justice Kennedy ever showed. That said, until very recently the Court was still reluctant to take up these cases, even though lower courts had been divided on issues like is there a Second Amendment right to carry a handgun outside the home? That's the case the Court is going

to be taking up next term. It wasn't until you had Amy Coney Barrett on the court and a really solid conservative majority that the right wing of the Court was to point a phrase ready to pull the trigger on taking up one of those cases. As far as the Second Amendment, there is division in the lower courts. There is division on that question of whether restrictions on

carrying weapons outside the home handguns. There are a number of states, mostly liberal states, that require you to show some sort of special need in order to get a license to carry either a confield or openly carry a handgun, and gun rights groups have been trying to challenge these laws for years. There are a few lower courts that have said they are unconstitutional, a few lower courts have said they are constitutional. And finally the Supreme Court is

going to take up that issue. And you have to think that the gun right side hasn't edged in the case. So in that case, there was a split in the circuits so that's a reason for the Supreme Court to take a case. But in the abortion rights case, in the Mississippi case, there was no split in the circuits. Was there that they didn't have to take that case. That's exactly right, June. They did not have to take it, and that's part of what was so striking about the

fact that they did. No lower court had said that this sort of ban on abortion, this is a ban on most abortions after fifty weeks of pregnancy. No lower court, no federal pale court had said that sort of ban is constitutional. And the reason is the Supreme Court's precedents, in particular Casey decision, have said that up until the point where a fetus becomes viable, that is capable of

living outside the womb, and that's something like three weeks. Uh. Up until that point states in the in the federal government can't put significant restrictions on the ability of a woman to get an abortion. So it's really hard to square with the Casey decision. And one of her real questions for the Court is, uh, if they are going to uphold this Mississippi law, how can they possibly do that without overturning at least in part the planned parenthood

versus Casey decision. The conservatives seem to be moving fast to me, but in your story you said that it wasn't fast enough for some conservatives. Is there outside pressure from conservatives for the new conservative justice to take these cases? Yeah, it was probably unrealistic. There have been a number of much less significant cases where we have seen Amy Coney Barrett in particular, not go as far as some of

her more conservative colleagues. For example, one of those COVID cases involved ban on singing or chanting at worship services, and she wasn't ready to say that that band should should be blocked. That's just one example of cases where she's been a somewhat careful jurist, and that has frustrated

some conservatives that the court hasn't moved more quickly. That said, it's still her first term, and the fact that she is perhaps being a little bit cautious, and maybe even some of the other justices are being a little bit cautious in her first term is by no means a sign that she won't be basically the kind of judge that conservatives were hoping for when she was nominated and confirmed. Just to stress no one can say how the Court will rule in these cases, but explain how just taking

them indicates an intent to change the lawn. If there were there was a solid majority on the Court to say, we do not want to disturb, say the abortion rights precedents, we do not want to call into question the Casey decision, it would have been very easy for the Court just a they know, we're not going to take this appeal, and they didn't do that. They actually sat on it for quite a long time, more than seven months before deciding what to do, but ultimately they decided to take

it up. And it would be really strange if they decided to take it up but don't have a majority of the Court that is at least very seriously considering watering down or even overturning those key abortion precedents. Now there's also an affirmative action appeal before the Court, and a conservative group, Students for Fair Admissions, has been mapping how to get that issue before the court again by bringing cases in courts across the country. Is that something

that the Court might take up as well. Absolutely, And this is an area where we've seen John Roberts be highly skeptical of using race as an admissions factor. It's entirely possible in this case that he is a justice

who is eager to take up a case. The key precedent or one of the key precedents that this group is asking the Court to court to overturn is this two thousand and three case called Grouder versus University of Michigan that upheld the use of race based admissions as long as it's part of a wholistic review of an

applicants file. And unlike in the abortion context, where Mississippi is not directly asking the Court to overturn a precedent, in this case, the group that's suing Harvard College over its admissions practices is directly asking the Supreme Court to overturn the Grouder decision. It's possible it will be more than the Court wants to buy it off in a single term to have guns and abortion and affirmative action.

On the other hand, given the way this has been such a longstanding issue that has bothered John Roberts, it's also very easy to see how they might get four votes to take up that case as well. If even if they don't take the affirmative action case just taking the Second Amendment case and the abortion rights case in one term and depend on what the result is. Doesn't that give more fuel to the progressives who want to

pack the court. Absolutely, if we see the Supreme Court a year from now or or thirteen months from now at the end of the next term, that has gutted the row and Casey has expanded uh, gun rights, has overturned abolished affirmative action, at least in the higher education context. Absolutely, that will add fuel to the fire for those who want to do something about the Supreme Court, possibly adding seats.

Of course, Democrats may not have the votes to do that, but the calls will only grow louder if if that happens. Speaking of which, President Joe Biden, Supreme Court Commission held its first public meeting on Wednesday. What happened, Well, it's a very brief meeting. They meant for only about twenty minutes. The members, or the thirty three of the thirty six of them who were in attendance via zoom, all took

their oath. They a few of the commissioners laid out the scope of what they're going to do, and that includes looking at all manner of proposals to expand the court limited jurisdiction, to impose terminent limits on justices. Uh. Not to make recommendations, but to look at all those proposals, to analyze them, to to to assess their legality. That

that sort of thing. Uh. The the commissioners laid out the scope of what they're going to do, and that was about it, and then they said they'll meet again the next meeting. Public meeting will include some testimony and uh maybe a little more uh substance and and perhaps contentiousness. It's a democratic led commission, but it is bipartisan. There

are some different views among the members of them. And eight days from now, or from the day that data that first meet meeting, we are supposed to get the commission's report and we'll see what happens from there. The fact that Biden didn't ask the commission to make any recommendations has led some people to think that this commission is just a way of biding time because it's another report when there are so many reports already out there

on the courts. Yeah, it could well end up that way, uh, at least until demcrats Democrats are able to coalesce around something right now. There are a lot of different ideas out there for what to do about the court, and and there's by no means that consensus as to what, if anything, should happen. Uh. Perhaps the Commission will hone some of the issues and make it easier for for those who want changed to coalesce around one or two

or three particular proposals. But it is also certainly possible that by the time this report comes out, attention will have been turned elsewhere, and whatever momentum there was for changing the court, we'll have dissipated a bit. Thanks for being on the Bloomberg Law Show. Greg. That's Bloomberg News Supreme Court Reporter Greg Store And that's it for the sedition of the Bloomberg Law Show. Remember you can always get the latest legal news on the Bloomberg Law Podcast.

You can find them on Apple Podcasts, Spotify and at www dot Bloomberg dot com slash podcast Slash Law. I'm June Grosso. Thanks so much for listening. Please studit Blo Bloomberg Lawn Show every week. The attend on Eastern right here on Bloomberg Radio