Women across Texas protested the Supreme Court's refusal to block a controversial Texas law that outlaws abortions after only six weeks of pregnancy. It has a novel mechanism that leaves it up to private citizens to enforce the law by suing anyone who helps a woman get an abortion. The head of Planned Parenthood, Alexis McGill Johnson, says the new law will turn people against each other, surveiling people, you know, trying to figure out their comings and going sharing confidential information.
That just is like such a destruction of community, of society, of democracy, and the constitution all once it's it's it's horrific. By a vote of five to four, with the Conservatives and the majority and Chief Justice John Roberts joining the liberals and dissent, the Court turned down calls from abortion providers to put the law on hold while the legal process plays out. Joining me is Carol Sanger, a professor at Columbia Law School and a leading scholar of reproductive rights.
Is this a watershed moment in abortion rights? With the Supreme Court allowing a lot to go into effect. That's at odds with its precedents protecting abortion rights. Yes, this is a watershed moment for abortion rights and possibly other rights as well, because what normally would happen is that when there's a fragrant violation of Roe or Casey, as Justice so tom Or called it, what the court would do is say, we have to sort this out and decide is this a violation or not? Is six weeks
too early? Does that violate the viability standard? But while we're deciding that, we will not let the law go into effect. And that's what's happened. Eight other states have passed the week heartbeat bands, and in every one of them, lower courts have said, yeah, well, we'll have to decide what to do about that. But in the meantime, we're not taking away the right to get an abortion. And so what's strange about this case is that they didn't
save the law in that way. The majority opinion was a page and a half and said the law might or might not be unconstitutional. What implications can you draw
from it? It is definitely a watershed moment, although it is not necessarily the catastrophic watershed moment, by which I mean the decision that the court handed down does not overturn Row and they're very clear about that, and they say, we are not deciding the constitutionality of the law, but we just can't give them the relief that the abortion
clinics want right now. And there's a reason they could do that, although nothing compels them to do that, which was there's this crazy provision that says this law is not going to be enforced by the people who usually enforced laws, like prosecutors or government officials. Here anybody, any citizen and it doesn't even have to be a Texas citizen, can go after another person performing one or aiding and
a betting in one. So it's a very crazy and Justice Roberts called it a novel and complicated provision and sort of turns everybody into either a bounty hunter or vigilante because you're now supposed to buy on your neighbors and figure out who's getting an abortion after six weeks and who's helping them. Because you can bring an action against anyone who's aids or a bet which is kind
of language we use with criminal law. Is anyone helping the woman along if they are, you can go after that person and the penalty is ten thousand dollars if you prove that they helped them. So the Texas lawmakers here designed the law so that it would be difficult to challenge in court. And that's what the dissenters say. This was intense really engineered to present not a substantive
problem with the law, like is six weeks viable? You know, what does that do to the viability protection, but to throw a real procedural wrench into how we litigate cases. So yes, and the court said, we don't even know what to do about this because we don't know who should be sued, because we can't figure out who's actually going to enforce this. So it is novel, that's for sure. And it's intentionally done to wreck the legal process to make sure that the federal court can't get at the
constitutional question. The dissenters acknowledge that this was way way outside the envelope of anything that's been tried. Are the five conservative justice is sort of tipping their hand that they'll reverse Roe v. Wade when the case on the Mississippi abortion ban is decided in the upcoming term. Well, it would seem so, because if had sought at all that the point has had a stronger case, they should not have let the Texas law go forward. So yes,
they're tipping their hand in that regard. And remember Texas is six weeks in Mississippi puts a fifteen week ban on abortion, which suddenly seems like big and generous and still fall six weeks short of where Brow and Casey would have put the marker. One other thing is it
shows something else. Lots of people have been saying, well, election years coming up, and the Court doesn't want to get in law in politics, but it looks like the Court is very happy to jump in and stir things up a little bit, so they don't seem a bit shy of taking on abortion cases, which you know haven't been the conventional wisdom. Thanks Carol. That's Carol Sanger of Columbia Law School. This is Bloomberg Law with June Brusso from Bloomberg Radio. I'm the founder and CEO of this company.
Anything that happens in this company is my responsibility at the end of the day. Although Elizabeth Holmes said that in sixteen in an interview with NBC Now in a courtroom in Silicon Valley where she's fighting to stay out of prison, her story has changed. Holmes is on trial for defrauding investors and patients after Para No Nos, the blood testing startups she created and led, was found to be a massive fraud, and her defense is trying to transform the former star CEO into a victim who is
not responsible for the frauds behind the company. Quite a different picture from the confident, self made billionaire portrayed in books, countless articles, and an HBO documentary. I don't have many secrets, but now Holmes is claiming that she kept one secret for years, the secret of a decade long campaign of abuse by her former boyfriend, the president of Para Nos,
Sonny Balwani, who has denied any abuse. Joining as Anne Coughlin, a professor at the University of Virginia Law School, and she claims she was locked in a psychologically, emotionally and sexually abusive relationship with Sonny Balwannie. What kind of defense might she be raising here? So the recent filings now give us a much clearer picture of what the trial testimony might look like on her behalf, But we're not really sure yet precisely what claims she's going to make.
It's going to be some kind of claim that she lacked the intent to commit the fraud that she's charged with. At least that's what I think, but it really is
a bombshell. With the filings being unsealed, we now know that her story is that she was psychologically, physically, and perhaps sexually abused by him for many, many years, and that because of that abuse, she suffered from post traumatic stress disorder other types of mental health disorders that she believed are relevant to assessing her liability for the fraud. I main question will be whether she intentionally lied to deceive people. So how would she frame that defense. There's
a couple of different claims she could be making. One is that she was acting under his dress. That is, yes, she would acknowledge she did, in fact make false statements, and yes these were false statements of material fact they induce investors to rely and give her lots of money. So she would acknowledge those basic facts. But she would say that she did those things only because she was so frightened of him and that he was going to
abuse her. In other words, the classic Durest defense in criminal law, the image is of a person committing a crime with a gun into the head, and so his abuse would be in this story, analogous to the gun to the head, but of course the law will take account of other kinds of pressures. Or so she's hoping that it's not actually a literal gun to the head while she's committing the crime, but that she's doing it under a tremendous amount of psychological pressure that was created
by his past abuse. So that's one claim, it's a dressed claim. Another claim that I see perhaps emerging from these filings is that she was under his sway again. She'd been in this relationship with him. He was an older man, and she's telling a story that he was the dominant person, that he was again abusive to her in various ways, and she might claim that he was the mastermind in the sense that he came up with
the fraud and she was actually relying on him. He was telling her while he was running the company with her that in fact the technology worked, and she was taking his word for it. So that claim would be, Hey, wait a minute, I was under the sway of this powerful man. He was running the show. He was telling me, Hey, this technology works, and I was just sort of the face of the company, right. I was the spokesperson that was being used for pr purposes, I believed him. So
that's another claim that she might be making. Bell Wanie unequivocally denies this. But can Holmes attorney say whatever they want in the courtroom because he's not in the courtroom and the government can't call him to testify because they were jointly charged and he's facing his own trial early next year. Yes, so you're making a fantastic point. This is one of those classic he said, she said, cross
witnesses kind of situation. But in this trial, because of the severance and because of his sistem and privilege, we will hear her account, perhaps through her own testimony. It now looks as though she is very likely to take the stand, and certainly through her lawyers arguments and evidence that they put on, will hear her side of the story. If this is her theory. The testimony on her behalf will be that in fact, he was an abusive partner, but he will not be available to take the stand
and to rebut those claims. Now we have to make really clear that he adamantly denies that he played the role that she is describing. So it is awkward and complicated. The government will be looking for I take it a whole variety of ways to pick holes in her story. And let's be clear, the jury isn't obliged to believe this story in the absence of any corroborating evidence on
her part. So I would imagine that she will need to point to examples of behavior by him, things that other witnesses observed, you know, perhaps angry or abusive behavior by him that they witnessed, and that they could say that, yes, he was this type of person. Then two, she may have a trove of communications between the two of them that support or corroborate her claim that he was abusive.
You know, you could imagine emails or text messages or other kinds of recorded materials that she would offer to corroborate her story. This defense strategy seems to be unheard of in a white collar fraud case. What potential problems do you see? This case seems to me to be unique in the following sense. She concealed her relationship with Balwani from everyone. It's not just that people were unaware
that he was abusing her. She also concealed the fact that they had a romantic partnership for many, many years. People did not know that people in the company investers did not know. That concealed the fact that they were living together. So it's complicated for her. We didn't even know you were in the relationship with this guy, and now you're telling us that it was an abusive relationship.
The point she lied to people about the fact of the relationship or omitted to tell people about the fact of the relationship, and people are gonna think, hey, well wait a minute, and now you're coming in and you expect us to believe that he was abusive too, So
that could be problematic for her. The other thing June that I noticed, I was trying to look at the date on which their relationship began and the date that it ended, because that's one thing that will be important to the prosecutors, is to look at the duration of the relationship and where she was and where he was during the various times that she's claiming that she acted
under his dress. And it looks to me from the stories that I've been reading, that they broke up in twenty sixteen, and there's different stories about why he left the company, but it looks like they simultaneously broke up and he left the company, but after sixteen, she was deposed by the SEC in and during that deposition, I don't believe she offered any information that suggested that she did these things because she was suffering from PTSD or
some other type of mental health disorder brought on by his abuse. You know, to the extent that the prosecution is allowed to use the evidence of that deposition to cross examine her if she takes the stand, that might be again a very effective way of testing doubt on her story, which is, hey, wait a minute, suddenly he's out of the picture, and yet you're still continuing to tell these lives. And so that's the kind of evidence that I would expect the prosecution to try to develop
about her testifying. Her attorneys have told the court they expect her to testify. But the defendant testifying is always a gamble, is it more so here because of all the comments she's made in interviews and that sec deposition you mentioned where she said I don't know at least
six hundred times. So the question is, now she knows it's a huge gamble to take the stand, but it may be the only chance that she has, in her view and the view of her lawyers and of course, we don't yet know exactly what other sorts of claims they might be able to make. But to the extent that they're relying on this history of psychological abuse, she pretty much would have to take the stand to make
it convincing. And then it all will depend on whether the jury finds her credible, not based just on her testimony on direct examination when she's in control of scripting the play, if you will, but on cross examination when a point to all kinds of lies that she told in the past, for example the sec deposition, she says, I don't know, and then suddenly at the trial she's telling yet a different story. The argument will be, while
you were lying, then you're lying. Now you know. She's in a very very tough position, but it may be her only gamble. Thanks An That's and Covlin of the University of Virginia Law School. A jury of seven men and five women was chosen this week. It includes at least one woman who disclosed personal experience of abuse, the subject that may prove central to deciding Holmes guilt or innocence. Opening statements will be given on Wednesday, and that's it
for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast slash Law. I'm joom So and you're listening to bloom mhm