America’s Abortion Wars Escalate With Coronavirus

the Womb. Michelle, how would you characterize what's happening now over abortion rights while the country is in the middle of a public health crisis. Well, abortion rights have become a convenient political proxy for carrying out platforms against people's

constitutional rights to in their pregnancy, is sort of. The coronavirus really has become that proxy or convenient scapegoat, if you will, for carrying out an agenda that up ends and ut really women's constitutional rights to in their pregnancies. And it's quite unfortunate because what states that are looking to do it in these times are claiming is that this medical procedure to which there is a constitutional right is not essential. Essentially, a constitutional right is not essential.

A medical constitutional rights, they're saying is not essential. Is that the basic argument in all these cases, and what are the challengers responses, So this is a basic claimant, you know, they're suggesting that this really isn't about women

and it's not about their constitutional rights. What this really is as part of pandemic preparedness, that it's important not to divert resources away, medical resources, away from addressing coronavirus, and that that's where attention should be in Texas, but need while in Texas, while there's an effort to close abortion clinics and make sure that doctors who perform the services cannot do so, Meanwhile, gun stores are open and

so are other places that people can go to. Presumably those are essential services being able to pick up a gun during these times, and not an individual's ability to terminate a pregnancy. Now, some states are saying, well, so long as this is an elective abortion, such as an abortion, that's not really needed. But the state really shouldn't be gerrymandering in any way reproductive health and determining which abortions happen to be elective, in which abortions happen to be essential.

And here's a reason why. In states, there would be some states would say, well, an abortion that's pursuing to a rape or incest happens to be essential. But one of the things that we know through statistics over time that are reliable and reliable empirical data, is that people who are raped oftentimes do not report their rapes. That doesn't mean that they haven't been raped, doesn't mean that

they're not pregnant because of a rape. They simply sometimes do not report it for fear of their own safety, of harm to their families, any number of reasons which people are sympathetic to. So there may be abortions that may appear to be elective to the state which really are essential, and states that have become far more strict with regard to abortion had in some instances created sympathetic carbouts,

if you will. But even that is deeply problematic because uh an abortion is legal, institutionally legal in this country. It's been the only space where there is a constitutional right that has been subjected to so much cutting um at the state level, mostly determined by male legislators and governors. This has not been an agenda that women have followed. And also it's an agenda that's inconsistent with the broad

majority of how Americans feel. I should add one other point to this that really underscores why the state states that are seeking to do this are engaging in a very dangerous game, and that is the United States leads the developed world in the rate of maternal mortality. The US has the highest rate of maternal mortality, higher even than in some developed countries. A person is fourteen times more likely to die by carrying a pregnancy to term

in the United States than by terminating it. In that way, when states are jerrymandering abortion rights, they are actually playing with not only health and safety, it's actually a life

and death game that they're playing. The situation has escalated in Texas, where the state a g has threatened abortion providers who continue to perform procedures with fines of up to a thousand dollars or a hundred eighty days in jail, and sixteen other states have defended texas Is position, and this week a three judge panel of the Fifth Circuit ruled two to one that Texas could enforce limits on

abortions that were part of the state's emergency order. The Fifth Circuit has shown an intemperance UH towards reproductive health rights and safety. And we see this through the very recent case June Medical, which is now before the US

Supreme Court. What's important to note about the Fifth Circuit is that despite the Supreme Court's holding and whole Woman's health just a few years back, where the Supreme Court upheld abortion rights, striking down two Texas laws and one that related to dot Ters UH to the state requiring that doctors received admitting privileges UH, Louisiana promulgated another law virtually the same as the Supreme Court had struck down, and the Fifth Circuit upheld it was highly unusual that

would have been the equivalent of Brown by Board of Education of Topeka, Kansas, of the state of Louisiana creating a segregation law and saying, well, Brown By Board of Education doesn't apply to us, We're Louisiana. That's how absurd it is that the Fifth Circuit upheld this um admitting privileges law in Louisiana. If courts allow the so called emergency restrictions during the pandemic, will every repercussions after the virus? Is it sort of establishing some kind of precedent. Well,

certainly that's what they're looking to do. The effort behind measures like this is really too un demne, undercutt and basically kill abortion rights by a thousand strikes. What individuals who are taking this stance are seeking to do is to figure out what are the most strategic ways in which they can undermine this important constitutional right, and this

is one of them. Litigation will continue after that, But what they're hoping is that with a sympathetic Supreme Court, perhaps a five Supreme Court that clearly has five conservative justices that have articulated anti abortion leanings, that they will hit the right note where they continue to undermine these rights and constrain them such that abortion rights become more illusory than real, even if one says that roasto has meaning. In the United States, now, it's not just Red states

that are using the pandemic to advance their position. A group of twenty one Blue states are urging the Trump administration to ease restrictions on a medic patient abortion drug. So is it wrong of them to do that as it's wrong of the Red states to do what they're doing? Well, what so, so let's be clear, um, abortion is constitutional. It's not just legal right. It is a constitutional right.

So when its state is saying let's find a way to make this constitutional right more accessible for the people who want to exercise it, that is not doing something that's actually contrary to the law or contrary to the constitution.

It's being mindful. Let's let's let's face it. So if a person is pregnant and the person either wants to carry the pregnancy to term or determinate it, the reality is prenatal care far more exposes someone to contracting the virus, having to multiple time see a nurse practitioner, or to see a doctor time and time and time again, or postnatally. With an abortion, it is generally one time and it's done, and there's not the need for ppe s, the protective

gear that doctors would need, and so forth. So really, the arguments that are being made to constrain the constitutional right happen to be problematic, just as we would see with voting right at the states that well, it's an emergency, let's just constrain people's right to vote. Let's just stop them from voting, rather than thinking through how best can we make sure that people have a right to vote, because,

after all, they have a right to vote. It would be problematic when states say, oh, here, we have a pandemic, let's see how we can constrain your constitutional rights, even if they have little relevance to what's happening at this time. And looking at abortion rights broadly, how much depends on the way the Supreme Court rules on the abortion case before it now, the one that you just mentioned, Well, it's quite significant. So you know, Justice Roberts will be

a key in the coming case. And so what this case concerns is not only uh the constitutional right to terminate a pregnancy, but it also concerns how um o our Supreme Court's legitimacy. And what I mean by that is that there is a question about the value of precedent. What Justice Thomas has been saying lately to sort of set the stage for this, is that precedent doesn't matter very much, and to some degree, we do have to

be careful with thinking about precedent. Let's remember that this was a nation where the Supreme Court had in fact upheld racially segregative laws in this country, so striking those down with Brown was very important. Yet at the same time we understand the importance and validity of judicial precedent, and that the Court can't act in a willy neely way subject to its political whims at the time. And

that's really what this Louisiana case is about. If just three or four years ago the Supreme Court struck down this law saying that it obstructed an undermined constitutional right, now changing course would really be a matter of the Supreme Court actually violating what Justice Robert said a year ago, which is that we're not Trump courts, were not Obama Court. We are the Supreme Court, and we are an objective, neutral court that follows the law. Thanks Michelle, that's Michelle Goodwin,

professor at you See Irvine Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg Ye