First Abortion Case With New More Conservative Court

Justice Amy Coney Barrett had joined the court. My guest is Michelle Goodwin, a professor at the University of California Irvine School of Law. Her latest book is entitled Policing the Womb. Tell us a little bit about the background of this case. This case Food and Drug Administration versus the American College of Obstetricians and Gynecologists is a case

that reflects COVID nineteen in many ways. So during this period of coronavirus pandemic and people sheltering in place, the SBA has waived in person requirements generally or a number of drugs, including certain controlled substances, but they have not done it for miss A press stone, which is a drug that's used during um to achieve an abortion for individuals who are within the first two weeks of pregnancy during COVID. For the first period of it, women did

not have to go to a number states. Women did not have to go to a clinic in order to pick up this medication, which the FDA has wanted women to do. Federal court blocked that when it was challenged. What's interesting here is that the drugs used, and it's a two drug combinations. A press stone and ms aprostol are the two drugs that are used to achieve a

medication abortion. What this means is that a person does not have to go through a surgery, but instead can take these two pills and achieve than a termination of the pregnancy at home. Now, this is the only drug out of over twenty thousand FDA approved drugs that fb A requires to be picked up in person for patients to take at home. So, out of more than twenty thousand drugs, the FDA has selected just this particular drugs where a woman has to or person who wants to

achieve a pregnancy termination has to pick up in person. Now, what's interesting about this is that because it is a two drug regiment, even though a person has to go out and pick it up, that's not when the termination takes place. So the very idea that somehow this is promoting patient health and safety really is an illusory concept because the person isn't terminating the pregnancy at that time. It's actually what the second drug that they're taking while

they are at home that the termination proceeds. What was the question before the court? Now, the question here was whether this case posed and undo or what the FDA is requiring during a period of pandemic that a person leave home to pick up this drug UM and to take it in a clinic or hospital or where have you, whether that creates an undue burden UM. Many people refer to Rowe v. Wade as the case under which abortion is is litigated in the United States, but it's really

planned parenthood. Be Casey, which was a case that was about twenty years after Roe b. Waite, where the Supreme Court upheld Row and also modified Rose holding, and the Court said that it would be unconstitutional for a space to impose or government to impose an undue burden on the right to be able to terminate a pregnancy. And so the question here is what the FDA is requiring during a period of pandemic that a person leave home to pick up this drug, whether that creates an undue burden?

So tell us how the Supreme Court ruled. Oh, this was a case where um six to three. There were Justice Sodomyer, Justice Kagan Um were um in this scent along with Brier and Sodomyer and Kagan wrote a decent

in the case. But the majority, which is comprised of conservatives on the Court were the ones that said that this is not an undue burden and a In fact, what does Roberts thought to do was to even change the questions from whether this is an undue burden, and he said that that's not the right lens for which one should actually be looking at this particular case. And that too, one would find a bit of a specious argument, because it is actually the standard for which under which

the Court analyzes abortion law, and undue burden standard. And so you see the Court shifting even there in terms of how a case such as this should be read. Many people are pointing to this and saying, well, this is the first case on abortion decided since Amy Coney Barrett has been a justice on the Court. But the vote was six to three. The Chief voted with the Conservatives. So did it really make a difference that Barrett is

on the court. Well, it does make a difference that Barrett is on the court, even if the decision could have been five to four decision. And and here is why, is that we don't expect the Supreme Court to just simply be calling balls and strikes that may happen. And that's perhaps, um, the more cynical view of the court.

And I think that there would be people who would be um in their right analysis to be skeptical about how some things happen in a court at a time in which, um, which abortion has become so deeply politicized. But if we were not to be as cynical, and if we were to think about the court as a place in which jurists are analyzing, communicating and thinking collectively through then even at five four, hopefully then that that fourth vote would have been one to further try to

um educate and inform colleagues on the court. You know, there's a saying about jurisprudence and exile and the idea of being that while you might not have moved your colleagues on the Court on a particular day and in a particular issue, but what you leave behind in the argumentation, what you leave behind in the descent, what you leave behind even in a nuanced concurrence, is something that your colleagues can ponder over. That as the other justices on

the Court, can influence um courts in the future. And I think that that matters here too, So so I would say that it's not just Chief Justice joint on and bear it on the court, but that it really does matter having a court um that recognize the justice

issues associated with reproductive health and right. And I'd like to add one other thing too to this, which is, you know, Justice Robert, in the opinion that he writes, he says, my view is that the Court's owe significant deference to to the politically accountable entities with the background, com potence and expertise to assess public health. And here he's talking about the FDA decisions. But here's what's also important to note, which is that there are times in

which America's agencies can be prone to political capture. That is to say that people leading those agencies can be people who have political points of view that are quite partisan. That reflects the individuals who have put them there. So it's not to say that agency determinations come about through

neutral fact finding UM. And in fact, what we know is that there has been a history with regard to women's health where in fact, the FDA has been quite politicized, and how it has made recommendations with regards to drugs that women would um take, and we could go through a lengthy history of m Max. I'd love to do that on your show and just talk about how politicized

the FDA has been visa the women's health. Let's look forward, because there are many constitutional scholars who are looking at Amy Cony Barrett on the Court and saying be ready for some changes in abortion law. So do you take any comfort in the fact that the justices didn't take on lower court ruling a third Circuit ruling that allowed Pittsburgh's fifteen foot buffer zone around abortion clinics to remain. Well, what you're pointing to is that abortion right um are

a hot button political issue. They've become deeply politicized in ways that are partisans and that are quite distinct from what they used to be forty fifty years ago in the space of Roe v. Wade. I mean, let's keep in mind that Roe was the seven to two opinion, and that five of the seven justices in support of Roe v. Wade were Republican appointed. UM Richard Nixon famously talked about family planning as being a basic public health issue.

It was Prescott Bush, who was the father of George Bush, the first President UM, who is the treasurer for planned parenthood. So what we see today is actually not a part of a Republican legacy UM in the United States, where there was a sense of both Democrats and Republicans being able to see eye to eye in terms of women's reproductive health care and safety as being just basic public health and family planning being public health and leave these

decisions to women and their health care providers. But instead these issues have now become mired um in in politics and politics in such a way that are not really about preserving or promoting women's health or anything like that. UM. They've become deeply contested and deeply contested and fundamentalist religious ways. That's very clear in terms of what's happening and what's

being articulated. The future of what these rights look like will be heavily dependant upon what this Congress does, what this next President, Joe Biden does. UM. The president has a significant authority through his the ability to UM, the ability to make executive orders that then can be effective both domestically and also internationally, and that really matters within

the realm of reproductive healthcare and rights. But you know, to be clear, this is one of the areas in which those who are fundamentally opposed to reproductive health rights and justice have been able to score victories. They've been able to score victories in state legislatures, and they've been able to score victories in federal appellate courts, and they've been able to score some measure of victory before the

United States Supreme Court. One of the things that we saw last year in the Supreme Court's ruling in June Medicals was that John robert sided with the live rules on the court up holding a prior case whole woman's health. What was important about that decision is that I think John Roberts was looking to make sure that the Court could be perceived as one of the rule rules of law, one that is not captured by the political whims of

the day. That was very clear by a number of things that he has said in recent years, including making statements that there's no such thing as Trump justices or or Obama justices, etcetera. And I think what was clear about that case is that it was hard to do anything differently, given that just a few years before um the Supreme Court had a ruling and Whole Woman's Health striking down the very same laws being contested in June Medical that aside, I think one can't overstate where John

Roberts is on these questions at all. He is a conservative. In this case, he sided with other conservatives on the Court, and one can see that this will be a time in which those who are committed to ending abortion rights and making it difficult even to obtain contraception will continue to try to beseech this court for the kinds of outcomes they desire. And I think they're happy that Amy

County Barrett is on the court. Now, what do you make of the fact that for months the justices have been deliberating whether or not to take a case on Mississippi's abortion ban after the fifteenth week of pregnancy. It's in conference over and over, right. Well, you know, I think that there's a measure of sporting that the Court is trying to do. You know what, You know, this is a court that is not isolated from the real life scenarios that are occurring in our society. You know

exactly what those deliberations are. I don't have privy to them, and most Americans and American professors and lawyers don't have privy to those. But I think that they are being mindful of what's happening in terms of the political atmosphere in the United States. And typically what courts want to do is to avoid being entangled, um in legislative matters.

Where they seek to intervene are in the instances where individual liberties have been compromised, where those individual liberties have been harmed, and you know, certainly these cases reflect that. But I think that they're also mindful that we were coming through um a big election and that would shape the presidency and that also could shape Congress as well, and that in fact has happened. Now. It will be interesting to see how the Court moves forward in terms

of the cases that it will decide to take. I also offer one additional thing, which is that as the court is considering which case is to take, we are seeing cases that challenge um the sort of fundamental norms with regard to the very presidential value of Rovi Wade Plan, parents who v. Casey and whole woman's health. And we see that with the kind of legislation that is coming out of states like Indiana uh now um mandating that a person vary or cremate the remains after an abortion,

and and also other ones. I mean, clearly, these are what we would frame as targeted regulations of abortion providers, These kind of trapped laws that really do seek to harm the interests of people who are seeking determinate a pregrency.

Even though they don't directly interfere. Even though they don't directly say that you cannot have an abortion, they do create the kinds of burdens and barriers that can make it financially difficult to obtain an abortion, or make it actually um physically difficult to get into a clinic, or make it psychologically difficult because of what the state is imposing on a person before she can terminate a pregnancy. Thanks Michelle. That's Michelle Goodwin, Professor at the University of

California Irvine School of Law. Her new book is called Policing The womb A Case involving the Boston Marathon bomber is going to be pressed and to elect Joe Biden's first test about his position on the death penalty. Joining me is Bloomberg Law editor Jordan Ruben tell us about this late round of federal executions. So this past week, the Trump administration carried out its thirteen execution since the federal government resumed them in July after a seventeen year break.

The executions that were carried out after election day during the a duck period were the first ones that were carried out since the late nineteenth century. So what we've seen finish up here is an unprecedented run of federal executions, certainly in the modern era. And when it comes to lane duck executions, one is not seen in over a hundred years, the first federal execution of a woman since the nineteen fifties. Tell us about the late night of

litigation before that. So, as is typical in death penalty litigation that's coming to a head at the Supreme Court, there will typically be a number of issues that are to be sorted out really coming down to the last minute. Sometimes that's owing to delays on the defendant's part. Sometimes that's owing to delays on the government's part. Because here we had a new federal execution protocol that was introduced during the Trump administration, and that's what led to many

of the delays in the litigation. And so in Lisa Montgomery's case, as in other cases that we've seen not just during these federal executions, but another execution litigation, we saw the justices confronted with this late night of decisions that the justices had to make in terms of whether to let the execution go forward or whether to grant

the stay. And has happened in all of these federal execution cases, the majority of the court sided with the Trump administration over dissent from the Democratic appointees on the Court that would have granted stays. Have the liberal justices been writing dissents, so not necessarily in every case. For example, in Leasta Montgomery's case, just the three justices Briar, Kagan

and Soda Mayor, they only noted their descent. However, in the last execution that took place of Dustin Higgs, and we saw Justices Soda Mayor and Briar, both right dissents really that took stock of this whole run of federal executions in various pro problems that they saw with the process.

We saw Justice Brier, as it has in the past, question the constitutionality of the death penalty itself and saying, as he predicted in the beginning, that the resumption of these federal executions was going to lead to a lot of novel legal questions, which he criticized the Majority for

not resolving and instead letting these executions go forward. Justice Soda Mayor took a similar tax and really had some strong language for her colleagues in the majority, saying that what the Court was doing was not justice and letting these executions go forward without resolving the merits of these inmates claims. Has the Court stopped an execution in any

case recently, not really. The last executions stay that I can think of came in the case of Reuben Gautierrez, a Texas inmate, and that was on the subject that we've seen some litigation in at the Court in recent years over the ability to have uh faith advice. Is there a minister of one's choice in the execution chamber, and so based on that claim, the justice had stayed his execution, and that case is still playing out, and it's actually back at the Supreme Court after some more

litigation in the lower courts. And remember before that stay, there was different conclusions that the justices came to, and some people saw disparities, for example, in the way that Muslim inmate was treated, who did not get to have his a mom into chamber with him when he was executed, as opposed to different action that the court took in other cases. And so that's the latest in that genre of cases of having a minister of one's choosing in

the execution chamber. But generally when it comes to the merits of whether an execution can go forward eventually, really the majority of the court anyway has not recently been siding with any inmates. There was a lot of controversy about the protocol for lethal injection. Has that all been settled? It hasn't. That's one of the many questions that was

left open by the court and really unresolved. So it's been settled in the sense that the government's position has been effectively upheld by a majority of the Supreme Court, but there have been numerous lower court trial court rulings that have been up ended and not allowed to go forward for it to really be tested to what extent that the government's protocol violates the Eighth Amendments ban on

cool and unusual punishment. So there have been some litigation that's played out in the lower courts, but on that issue and a bunch of others. That's what Justice Soda Mayor and Justice Brier we're complaining about in Descent, which is that many of these claims just haven't really been tested and fully litigated as much as they should be before deciding on this important issue, and so the litigation has been kind of short circus it in a way

in order to allow the executions to go forward. But that's part of a pattern that we've been seeing in these capital cases, not just starting this year, but certainly it's been magnified this year with all these executions coming one after another from the federal government. So what is

Joe Biden's position on capital punishment. Joe Biden, after having been as a senator, really tough on crime politician who's supported the death penalty, and during the Obama administration, when he was vice president, Certainly they oversaw capital prosecutions and did not commute death row sentences. He now said that he's wanting to eliminate the death penalty completely. Now he hasn't laid out exactly what he's going to do to try and accomplish that. We'll have to wait and see

a bit. But he has said that he wants to support legislation ending the death penalty and supporting states to do so as well, so easily saying that he's against the death penalty, and we'll have to see what specific action he's going to take. So Jordan's he doesn't need legislation, does he? He can just stop the death penalty the same way that President Trump and Attorney General William Barr restarted the death penalty. Well, it depends exactly what he

wants to accomplish. Certainly, he has the right not to carry out executions while he's the president, and that was the case when he was vice president during the Obama administration. However, what antideath penalty activists are saying when they point to that period, they say, if all you do is not carry out executions, that allows for President life President Trum

to then resume them. And so what some people are calling on President Biden to do when he takes office is commute all of the existing death row sentences to life so that a future president can't carry out these executions. And they want him to dismantle the death Chamber to again make it more difficult for a future president inclined to resume them to then carry amount. So they're not a fan of what happened during the Obama administration, even if at first glance it seems like they might be.

Because no executions were carried out. They're saying, that's not enough. You have to stop this so a future president can't do what President Trump did. So now entering into this picture is the case of johars Or Nayev, known as the Marathon bomber. The jury did give him the death penalty. Tell us what has happened since then? Sure, so, this

past summer, an appeals court vacated his death sentence. Is not his conviction, just his his best sentences, on the grounds that the judge didn't do enough to screen potential jurors for pre trial publicity bias. And so the appeals court vacated his death sentences and affirms his life sentences. So the defending is going to die in prison either way.

But now the government is in a position where those best sentences are apended, and so the Justice Department, while President was still president, appealed to the Supreme Court in trying to reinstate those death sentences, and that petition is still pending at the court right now. So this was one of the most important terrorism prosecutions that we've seen in recent years. Do people think that might change what a Biden administration might do about it? Well, that's the question.

If Joe Biden is against the death penalty, then he has to be against the death penalty, right. It can't be used just when it's really bad. And so we'll have to see what exactly Joe Biden means when he says he's against the death penalty now. And so this case prevents really an important test at the beginning of his administration for whether he's truly against the death penalty.

Is there a complicating factor? Merrick Garland is going to be most likely the next Attorney General and he was involved in the prosecution of Timothy McVeigh and the death penalty was carried out there. I believe right. And so the question then is what type of influence is Mark Arland going to have during the Biden administration? And really another question is what is Mark Arland's position now having undergone this sort of evolution that Joe Biden has undergone.

And so that's just yet another thing that will have to wait and see how that plays out during the administration. I know the Trump administration is trying to get the death penalty reinstated against Sarnaiev. Are there other people who are pushing that as well? As? You know, the families of the victims were very vocal in that trial, and I'm wondering if they are also pushing to get the

death penalty reinstated. Well, it's an interesting thing because in every case, all of the victims won't necessarily feel the same way. And so in talking to people for this story, the community and the victims and the families are potentially of two minds of what they want to happen here, it seems that a common thread is that what people don't want is to be reliving this tragedy every day,

with it being in the news again every day. If the year is going to be another death penalty trial, and so that doesn't necessarily lead to what the answer should be, because one way for there not to be another trial is potentially for Joe Biden to not pursue the death company. And then the question, though, is whether that's going to satisfy all the victims and families. Probably not.

But though it seems that no matter what is done here, there's probably going to be some people who aren't happy with what happens, which is usually the case in definitalty cases. Does it seem as if the justices are waiting to decide about this Arnayev case until Biden has a chance to take office and they see what shakes out. I think that there is a decent chance that that is

what's happening. I think you don't need to convince the justices to put off deciding potentially contentious issue, and so I think they're always happy to push something off, especially if it's going to be controversial, And in this instance, they might have had the added reason that perhaps they read the papers and they know that Joe Biden is against the death penalty, and perhaps are thinking, let's see if the new Justice Department takes a different position instead

of granting the case and then potentially having to dismiss it later on. So it could be a matter of economy on their part and waiting to see what happens if the Biden administration does change its position. I mean, there's nothing that the Supreme Court can do about that. They don't like it, but it's happened before. Exactly. It's the prerogative of the executive to change its position. The justices aren't happy about that because they look to the

Solicitor General's office. That's the Justice Department's topplayer at the Court, the Solicitor General as someone who's not just another party to litigation, but someone who they can trust and ask them what their position is. And so of course, if you're a Supreme Court justice, you want that position to

be consistent. But that's just not always the case. There's new administrations that come in and they have new priorities, and so in this case and probably a bunch of others, there's going to be a new position when Joe Biden comes into office. You hear a lot about anti death penalty advocates and groups. Are there any groups that are

acting pro death penalty? Well, for the past year, the Justice Department has and that's been enough to outweigh really any activist group, because the government is the one that has the power here. But to your point, I think it can be that the anti death penalty groups perhaps have been more outspoken, and it could just be the people who support capital punishment don't have necessarily that same

mobilization for an outside group. But what they do have, at least for this past year, has been the federal government itself and going back further in which will continue, people in state governments that still carry out executions, and a majority of the Supreme Court. So the support where it counts, if you're a proponent of capital punishment, would be where you want it to be, as opposed to pass being part of an organization that is not going

to actually sway the eventual outcome. There was a lot of controversy about the protocol for lethal injection. Has that all been settled? It hasn't. That's one of the many questions that was left open by the court and really unresolved.

So it's been settled in the sense that the government's position has been effectively upheld by a majority of the Supreme Court, But there have been numerous lower court trial court rulings that have been up ended and not allowed to go forward for it to really be tested to what extent that the government's protocol violates the Eighth Amendments

ban on cool and unusual punishment. So there have been some litigation that's played out in the lower courts, but on that issue and a bunch of others, that's what Justice Soda Mayor and Justice Brier we're complaining about in Descent, which is that many of these claims just haven't really been tested and fully litigated as much as they should be before deciding on this important issue, and so the litigation has been kind of short circuited in a way

in order to allow the executions to go forward. But that's part of a pattern that we've been seeing in these capital cases, not just starting this year, but certainly it's been magnified this year with all these executions coming one after another from the federal government. Thanks for being on the Bloomberg Law Show. Jordan's that's Jordan Reuben, Bloomberg Law Editor, 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, or at www dot bloomberg dot com, slash podcast, Slash law I June Grasso, thanks so much for listening. Please tune into The Bloomberg Glass Show every week night at ten pm Eastern right here onto the Berg Radio