This is Bloomberg Law with June Brusso from Bloomberg Radio.
We did it, We did it.
Cheers in Ohio last night, a Republican state where voters approved a ballot measure to enshrine the right to an abortion in the state constitution that gives abortion rights a seven to zero winning streak on state ballots since the Supreme Court overturned Roe v. Wade. Abortion rights may not have been on the ballot in other states, but it was the driving issue in races in Kentucky and Virginia, where it trounced the opposition, beating back an attempted reframing of the issues by Republicans.
Thank you.
Kentucky Democratic Governor Andy Basher resoundingly won reelection in the red state of Kentucky. His opponent, Republican Attorney General Daniel Cameron, was endorsed by Trump and parted the state's near total ban on abortion, while Basher placed abortion rights front and center in his campaign.
Kentucky made a choice, a choice not to move to the right or to the left, but to move forward. For every single family.
Joining me is Mary Ziegeler, a professor at UC Davis Law School. Her new book is Roe the history of a national obsession. Mary, was the twenty twenty three election cycle a big test for the question of whether protecting abortion rights wins elections?
Yeah?
Absolutely. I mean, I think there was already a lot of evidence that protecting abortion rights wins elections. But I think any doubt on that matter was resolved pretty decisively.
So Ohio, fifty seven percent of Ohio voters cast their ballot in favor of the constitutional amendment to codify abortion access, despite a significant array of obstacle goals in a red state, purging of twenty six thousand people on the voter rolls, and the Republican Secretary of State who was anti abortion, changed the language on the ballot measure referring to a fetus as an unborn child. Tell us about the obstacles that Republicans put in the way of this constitutional amendment.
There have been a lot of obstacles. Republicans began by trying to lift the threshold for passage of a ballot initiative, and that proposal was defeated by Ohio voters in August. There's been information published on official government websites in Ohio giving a misleading account of what issue on the ballot initiative would have meant there's been the you know, the language anti worsion, language used to describe what voters were choosing.
And yet, you know, despite all of that, there's been pulling on the ballot initiative actually been pretty remarkably consistent for some time now, so voters had made up their and all of these various strategies by Republicans didn't work.
Yeah, and also making it a no vote in August but a yes vote in November. It seems like the Republicans were just trying to sow confusion rather than waning on the issue.
Yeah, I mean, I think that's one of the things that's striking. There hasn't really been an effort in Ohio to convince voters that abortion rights were a bad idea on the merits. Instead, there have been efforts to stop voters either from understanding the issue or deciding it. And that obviously tells you Ohio Republicans were in trouble. Right, if you yourself conceived that your position is that unpopular, you're not starting from a position of strength.
So Susan B. Anthony Pro Life America group is saying it lost in Ohio because voters incorrectly believe pregnant patients could be denied life saving medical care. What do you think of the response of the anti abortion groups to this.
I mean, I think that you're seeing a lot of excuses. Really. I mean, I think that if you have lost seven of seven valid initiative fights, the idea that that's all based on voters misunderstanding of the issues isn't really a credible explanation. I mean, I think it's certainly true that the workings of abortion bands have been consequential in the sense that physicians aren't comfortable applying exceptions to people with
wanted pregnancies who are in life threatening situations. But I think, by the same token, if you've lost seven of seven valid initiative races in the space of a year, the problem is not just packaging or funding that the problem is substance, and I think that's becoming increasingly clear.
You mentioned the seven to zero winning street on the ballot initiative since Roe was overturned. What have the abortion rights advocates been doing to be so effective?
I mean, I think, first of all, they have the advantage of what Republicans are doing in a lot of states, right, So Republicans in Virginia, for example, tried to say, oh, hey, you know, the Democrats are extreme because they don't want there to be any restrictions on abortion. And it's been easy for Democrats to carry that attack by pointing to the bands that are actually on the books and large spots of the country that are not, you know, moderate
compromises at all. I think the other thing that abortion rights supporters have done relatively well is to realize that ballot initiatives are very much the politics of the local So a message that will work in Ohio will not necessarily work in California or Kansas. That you have to tailor what you're saying, how you write your valid initiative, what arguments you make for it, to the audience in that state. And I think that's been pretty successfully done too so far.
So you mentioned Virginia, and it seemed like anti abortion leaders were testing some new tactics this cycle rebranding. They didn't call them abortion bands, but rather limits. And you mentioned fear mongering about Democrats wanting abortion up until birth, and it seemed like Virginia Governor Glenn Youngkin used those tactics in his campaign to try to get Republican control
of both state houses, which of course failed. How important was the abortion issue there, even though it wasn't on the ballot.
It was pretty important. I mean, I think Governor Youngkin was on the record as saying that he was piloting what he saw as a potential way forward for Republicans on abortion in every state, and that was to go on the offense and essentially accuse Democrats of being the real extremists on abortion and using, like you said, a limit, as Youngin would have framed it to rally Republicans around, and that obviously didn't work, and if anything, it seemed
that the abortion issue helped Democrats, I think, achieve a surprisingly good result in Virginia and taking control of both
houses of the Virginia Legislature. And I think, you know, the reason it didn't work is because I think Youngin, using an old playbook before Roe was gone, Republicans would hold up, you know, regulations that were popular in isolation, like a fifteen week ban or a ban on so called partial birth abortion, and say, you know, aren't you for this voters, And a lot of voters would say, sure,
you know, that sounds reasonable. But now when Democrats say that isn't really what where Glenn Youngkin wants to stop. That's as much as he thinks he can get today. But tomorrow he's going to come back and ask for a six week ban or a ban at fertilization. That argument has a lot more credibility with voters because, of course, you know, anti abortion activists are admitting as much, anti abortion politicians are admitting as much. There's many state bans
that already go that far. So when Youngkin claims to be the voice of moderation and reason, it doesn't have the same force it would have before Dobbs. So I think that's one of the reasons that strategy didn't actually play out as Youngkin had planned.
Younkin was pushing this fifteen week abortion ban, why Republicans think that that's a compromised position that would be acceptable.
I think where they're getting fifteen weeks is a combination
of that's just what Dobbs upheld. So it's had some sort of resonance for Republicans for that reason, and also because there are polls suggesting that as much as Americans support for abortion throughout pregnancy has continued in recent years that there's still less support later rather than earlier in pregnancy, and so I think what you're seeing is Republicans trying to leverage that and say, you know, we're going to focus on a ban at a point where think Americans
will be more on board, and we're going to say that that's actually our focus rather than a ban from fertilization, And they're expecting people to credit that right. And I think again, the problem is not it's twofold. And one, I think fewer Americans support a ban at fifteen weeks than would have been the case several years ago. And two, you're seeing the fact that voters just don't believe that
Republicans are actually interested in a fifteen week ban. They see a fifteen week ban as a sort of compromise that Republicans are forging at the moment because they can't get anything more than that, but that they would go much further in banning abortion if they had the opportunity.
Coming up next, i'll continue this conversation with UC Davis professor Mary Ziegler. Will there be more constitutional amendments to protect access to abortion on the ballots in other states? In twenty twenty four, and attempts to stop travel out of state to get an abortion. Abortion rights may not have been on the ballot, but it was the driving issue in races in Kentucky and Virginia, where it trounced
the opposition. In Kentucky, a state that Trump won by twenty six points, voters resoundingly re elected Democratic Governor Andy Basheer. He won over Trump endorsed Republican Attorney General Daniel Cameron, who supports the states near total ban on abortion. Sheer placed abortion rights front and center in his campaign and ran a sharp attack ad against Cameron where a woman described being raped by her stepfather when she was twelve.
This is to you, Daniel Cameron. To tell a twelve year old girl she must have the baby of her stepfather who raped her is unthinkable. I'm speaking out because women and girls need to have options. Daniel Cameron would give us none.
I've been talking to Mary Ziegler, a professor at UC Davis Law School. Mary, what do you think of the use of attack ads like that?
Well, I think what you're seeing in the fight between Cameron and Sheer is sort of the mirror image of what happens when you try to do the opposite of what Glenn Youngkin did. So, at least at the beginning of his campaign, Daniel Cameron said, I'm not going to run away from my position on abortion. I'm going to make it part of my campaign. I'm going to emphasize that I've been in court, I've been the one fighting for Kentucky's abortion band like I'm mister anti abortion right.
And Dasher was to have him do that, because then Basher could say, you know, I am the voice of reason right and not even really have to get into questions about abortion that would be tricky in Kentucky.
Right.
He could focus on things like victims of sexual assault and accuse Cameron of being heartless toward those patients and leave any of the trickier questions in a red state like Kentucky off the table. So I think the lesson is that whether you're trying to strike a kind of faux moderate tone like Youngkin, or you're trying to, you know, run to energize the base, which I think is what Cameron was doing, that there are perils either way, and that's I think what we saw yesterday.
Constitutional amendments to protect abortion access are already on the ballot for twenty twenty four in Maryland and New York. What other states do you see there's momentum to put abortion rights on the ballot next year.
Only the most consequential is Florida. As you mentioned, New York and Maryland are not in any real jeopardy of changing their abortion policy significantly absent the constitutional amendment, So those would be more along the lines of proposals you've seen in states like California or Vermont, where you're expanding
on existing protections. Florida has a very conservative state Supreme Court that is likely to overturn a nineteen eighty nine precedent recognizing state of worshi rights, So absent intervention by voters, you're likely to see Florida's six weekman go into effect in the not too distant future. Florida is more complicated
simply because well, there are two reasons. One, Florida has a sixty percent threshold for passing ballid initiatives, and second, there's already a challenge before the Florida Supreme Court, which as I mentioned, is very conservative, by the Attorney General actually Moody that's attempting to get that issue off the
ballot by essentially arguing it's confusing to voters. So this is another kind of parallel to what we saw in Ohio, where Republicans are trying to keep voters from weighing in, but this time they're relying on a very conservative state Supreme Court, which may be a more successful strategy.
Do you see any sort of cracks in the abortion activists arguments or you know, the way they're framing things or campaign that Republicans or abortion opponents could use in twenty twenty four to defeat ballot measures or to defeat pro abortion candidates.
I mean, I think the cracks mostly are at the federal level, right, So I think the person who's on the Republican side who's played the abortion issue the best so far as Donald Trump. Now, you know, you can't praise Donald Trump too much for it, because he's in the enviable position of basically having a glide path to the nomination regardless of what he says about abortion. So he quite simply just doesn't need to worry about offending primary voters on abortion because he's going to win the
nomination anyway. But I think Trump has convinced a lot of Americans. I think inaccurately, in my view, that he really isn't actually going to do anything on abortion in office, and that he thinks it would be a mistake to do so. And I think, you know, there are plenty of things Trump would and I think could do without
Congress were he to be elected again. And I think that's probably the best move Republicans can make, to either lie or rely on courts, as you're seeing in Florida, essentially takes the ball to another court and blame the courts for whatever's going to happen on abortion. I think the idea that the question is about fundraising or messaging, as various Republican candidates have suggested, kind of misses the point.
Well, Trump at one point was taking credit for turning the Supreme Court so conservative and for a point to sing justices who were anti abortion.
Yeah. Absolutely. And I mean the other thing, too, obviously, is like if you just think about how Donald Trump usually operates, it's based on self interest. So at the moment, it's in his self interest to say that abortion is, you know, an issue that Republicans need to compromise on because Trump needs to get into office. But when Trump is in office, the calculus will be very different, right. I mean, he'll be still looking to raise money from voters who like him, as he has pretty much his
entire time out of office. He'll be looking for close allies to join him in his effort to transform the DOJ and pursue vendettas against political enemies. He may be looking for ways to stay in power after his twenty twenty four term is up. And in all of that, it's going to make more sense for him to try to energize and strengthen ties to the base than it would to, you know, essentially appeal to general voters who are not going to be interested in his revenge campaign
or his staying in office permanently. So I think that's a big part of why you have to take Trump's current positioning on this with a grain of salt.
It's been more than a year since the Supreme Court overturned Row and abortion is almost completely outlawed in fifteen states, Yet the number of abortions done in the US has, by some estimates, fallen by only about twenty nine hundred procedures per month. Is that due to the abortion pill?
Yeah, I mean, I think that the data we have so far suggests either that patients are crossing state lines to get abortions. Essentially, you know, the abortion rate in states adjacent to BAND states has gone up significantly, and they're getting abortion pills online, so part of you know, the other thing that's interesting is that the GOP is really damaging its cause by going to the wall for these bands, and then ultimately the bands aren't even working to lower the rate of ortion, and.
Abortion opponents in some states are trying to find ways to limit a woman's ability to leave the state to access abortion, relying on novel legal strategies and targeting those
who assist pregnant women in traveling for care. For example, Alabama's attorney general declared that his office had the power to prosecute people who help residents leave the state for an abortion by using criminal conspiracy laws, and a handful of counties in Texas have passed ordinances outlawing using their roads to drive somewhat out of state for an abortion. Do you think any of these kinds of measures would survive a legal challenge.
I mean, I don't know, right, and I think this is the potential ace in the hole for Republicans that if they don't have voters, they may have the courts. Because some of these questions about the full phrasing, credit, cause, and the right to travel, I think many of these
laws would be unconstitutional. But I also acknowledged that a lot of these areas of law are really underdeveloped and that there haven't been courts who've weighed in on these questions for decades, And so that means that there are possibilities that you could get conservative federal judges to side
with you when voters will not. And I think that's really kind of the wild card, one whether courts will do that, and two whether Donald Trump can get into office as polls suggest he will and then achieve outcomes that voters would reject just using the executive branch power alone.
These laws are also designed to frighten people, not to help people get abortions. Have doctors been delaying or denying care even in states with exceptions to abortion bans.
Absolutely, I mean in states with abortion bans, we've seen a lot of doctors hesitating to provide care, even in cases where they would have a very good argument that they could act without legal penalty, because the downsides of being wrong are so significant, right, they're like up to life in prison. So and physicians as a group are not,
you know, particularly risk tolerant. Right, There's a group of people who have invested a lot in managing risk and in their own careers who are not interested in jeopardizing.
All of that.
So many unanswered questions in this area. Thanks so much, Mary. That's Mary Ziegler, a professor at UC Davis Law School. Coming up, Well, John Eastman lose his license to practice law. This is bloomberg. Ah, we are demanding a vice president.
Pence is this afternoon at one o'clock.
He let the legislators of the state look into this.
So we get to the bottom of it and the America people know whether we have control of the director of our government or not.
That was Trump attorney John Eastman at the rally on January sixth, before the march to the Capitol. He was one of the chief architects of Trump's failed efforts to overturn the twenty twenty presidential election, and he's one of the eighteen defendants charged along with Trump with racketeering for their efforts to overturn the election in Georgia. Eastman is
also fighting to retain his law license in California. There have been thirty three days of trial in the California State Bar Court, the nation's only court devoted entirely to lawyer discipline, and more than eight hundred exhibits have been submitted. The Bar's eleven count notice of discipline includes charges that Eastman violated ethical and legal obligations for allegedly conspiring with
Trump to disrupt the electoral count on January sixth. Among the claims is that Eastman pressured then Vice President Mike Pence to violate the law and override every branch of government by throwing out electoral votes. Eastman claims he had a good faith buil to doubt the results of the election and a First Amendment right to speak out as a private citizen. Joining me is Joyce Cutler, a correspondent for Bloomberg Law. So what started this action by the California Bar?
There is a complaints file against John Eastman. Among them were twelve hundred attorneys former judges for violating California ethical and bar rules. There are several complaints against him, goes back in a large part to his actions last in the fall of twenty nineteen and into twenty twenty. There are comments made that he made to podcast Bannon's war room. There were comments he made to the rally on January sixth at the Ellipse. There were memos that he wrote,
two memos he wrote for the Trump campaign. There were comments he made about the dominion electronic votings, about emails he made to Vice President make Fence's chief counsel, miss representations in an article a publication called The American Mind regarding alleged fraud in Georgia and Michigan. They all had to do with his conduct or comments he made while basically acting as a lawyer.
So he took the stand. Tell us basically, what was his argument. He seemed to be saying that, you know, what he did was legal.
Yeah, he said several things. One, he was in good conscious acting as a zealous advocate for his client Trump and the Trump campaign. And he said he was giving legal advice, and attorneys should be able to freely give legal advice, all forms of it, when you're laying out all sorts of scenarios, and should be able to do that without being prosecuted. He also said he had a First Amendment right to stand up and make those comments. On January sixth under the First Amendment.
So there were what thirty three days of trial? Who was would you say, the best witness against him then for.
Constitutional scholar the name of Matthew Grimmer. He had some really impressive testimony about there is no foundation for Eastman's arguments, there's no legal basis for alternate electors theory, there is nothing in constitutional law, in the Constitution, in the law anywhere. Matthew Seligman is a fellow at the Constitutional Law Center Stanford Law School, and he said there's nothing in the twelfth Amendment or elsewhere in legal principles to back up
his theories. And Eastman was known as a constitutional a conservative constitution law scholar as well, So that you had someone who was his equal, shall we say, come up with an argument saying there's nothing there was interesting. It was also something that they kept coming back to during the trial.
And the best witness for Eastman.
Was John Hugh john uc Berkeley law professor, also a conservative law scholar. He was best known for writing what was called the Torture Memos during the Bush and imstration. And he's been a friend with Johnny's been for years. Their kids grew up. You know, they watched each other's kids grow up. And he said, you know, Johnny Smith was righting the law, but not write about the actions
he took to support Trump. And that was interesting because you hear you have someone who is a long term good friend and you know they'd known each other for years and years, and also someone who's respected in the conservative circles saying, yeah, he's ride on about law. The law. You know, there are ways you could read the Constitution that you could interpret you in a broad sense, that there was uncertainty whether it was the vice president who
had the authority to actually count and make determination. And he was on the stand a couple of days. You could tell in some ways he was pained, and he said it hurt to see some of what happened with some of his friends and arguing for.
Trump, tell me what his first amendment argument is.
His first Ammendment argue is that he is a right as a citizen to speak out. That's pretty much it comes down to. And he said he was speaking to the public and that his remarks did not create such an imminent harm, meaning they didn't propel people on the ellipse to go and raid the Capitol, so there was enough of a distance between his remarks and the actions leading up to the attack on the US Capitol.
But lawyers have different kinds of responsibilities and are under different limitations right and California lawyers are enjoined from knowingly making false statements of fact or law to a tribunal, failing to correct false statements of material fact or law previously made, and offering evidence that they know to be false. So how does that impact his first Amendment argument.
I didn't come across any lawyer. I spoke to a law professor who said Eastman's First Amendment right trumped his obligations as a lawyer and as an officer of the court to support the Constitution. The lawyers that I interviewed and the professors I interviewed didn't find any support for Eastman's arguments that his First Amendment right was greater than his obligation as an officer of the court to uphold what is required of all lawyers, and that's to uphold the Constitution.
The judge made a preliminary finding of culpability. Tell us about that.
Yes, it's a procedural finding, but it's an interesting one. But the procedural finding that she found the charges credible allowed the bar to introduce aggravating witnesses and continue with introducing and reintroducing the witnesses to testify who can say
this is what happened because of his actions. That's why you had two election officials, you know, in Pennsylvania and Arizona, discuss what happened to their offices, what happened to the other election officials, you know what consequences were from the actions of Eastman and others. And I qualified because each of them went on cross examination said, you know, they couldn't point to Eastman's remark specifically, you know, to cause
harm to where they had to have extra security. It was the constellation of voices, and Eastman's was one of them.
Is it a fine line between a lawyer advocating for his client and making an argument as opposed to going too far in those arguments so as to make it unethical.
It's not so fine a line that the majority of lawyers never get disciplined for it. And there's zealous advocacy, and there is a crossing the line to advocate for your client to act or engage in a way that violates the law. What happens next, Well, today we're going to be hearing with the judge and both sides going over some of the exhibits. There were eight hundred exhibits introduced, so they have to go through and pass through. Then you have until the twenty second. Both sides will file
closing arguments post trial briefing. They waived oral briefing because they just ran out of time because it was a bit of a mess with so many objections and problems that they knew they couldn't do it. They had to get the witnesses on and they couldn't stand up there and argue. So the post trial briefings will act as their closing arguments and they can only discuss what was brought up as evidence during the trial. And then on the twenty second, the case will be considered submitted. The
judge has ninety days to make her decision. Her decision can be appealed to the Hearing Department, which acts as an appellate level within the state Bar court. What evers decided within the state Bar court system goes to the California Supreme Court. The California Supreme Court is overseas attorney admission and discipline. So every attorney who gets discipline of being is barred or suspended, it has to get signed
off by the California Supreme Court. So the California State Bar Court is interesting because it's the only court in the nation that deals strictly with attorney discipline. And there's two hundred and eighty thousand, you know, attorneys in California. You know, plus that's a big job.
Eight hundred exhibits, I mean, what kind of exhibits. It seems like that's a lot for this case.
It's a lot, and this is an usual case. But there are exhibits like that article I mentioned in The American Mind that Eastman wrote that was part of the bar charges. You know, texts that were introduced between parties, emails, some of the emails included between Eastman and Mike President Mike Pence's chief council. There is a pieces of speeches, you know, the speech on the ellipse on January sixth,
that's the place that's part of the evidence. So there's all kinds of different kinds of evidence that go into both the bar's arguments and the defense arguments, or they call them the respondent's arguments.
He has said that he going to take this to the Supreme Court. How often does the Supreme Court consider lawyer disciplinary issues?
Very rarely. In California, that happens all the time because the Supreme Court has to sign off on a trade discipline. The US Supreme Court very rarely. It's going to be interesting to see what happens at the Supreme Court level in California, and then if the US Supreme Court even considers it, will they I don't know.
So the lawyers you spoke to, do they think that the evidence is weighted against Eastman?
Yes, that's a quick answer. Yes. Headshaking is the best way to describe talking to other lawyers, talking to law professors about the argument's mister Eastman's making. You have the right and you have the obligation to represent your clients. You don't have the right to basically hand them a recipe about bomb making.
This case is going to be very interesting, interesting to see how the judge rules, and to see how the California Supreme Court rules, and interesting to see if the US Supreme Court takes his appeal. Thanks so much, Joyce. That's Bloomberg Law correspondent Joyce Cutler and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg