Justice Department's High Stakes Suit Over Abortion

judicial review for as long as possible. The Texas law is the strictest ban on abortion since it was legalized in the US a half century ago, banning abortions after about six weeks, with no exception for rape or incest. My guest is Leah Littman, a professor of constitutional law at the University of Michigan Law School. Why do you think the Conservative Justice is a out a law which contradicts their precedence to go into effect? Do you buy

their explanation? So? What I don't buy is that the mere existence of some procedural uncertainties was enough to leave them not to actually enjoin the law. The Supreme Court has enjoined laws even in the face of considerable procedural uncertainty. So, for example, when the Court enjoined New York's response to the coronavirus, the response that joined the New York policy wasn't even an effect, but the Supreme Court said, well,

it might go back into effect in the future. So there procedural uncertainty wasn't enough to stop the Court from granting relief to parties where it believed their constitutional rights were being infringed. I do think the fact that this case involved abortion did affect the justices decisions and actions.

I think if this statute was written in a way that allowed anyone to sue people who owned unlicensed handguns rather than allowing anyone to see abortion providers, I don't think the procedural questions in this case would have stopped the Supreme Court from enjoining that law. But is the way the law was crafted, with private people basically playing bounty hunters. Is that mechanism what seems to be causing

difficulty in the courts. Yes, absolutely so. The fact that the state law authorizes private citizens but not see its citizens to sue to enforce the law was deliberately designed both to create uncertainties about who could be sued in order to prevent the law from going into effect and possibly prevents the law from being challenged at all. My point is only that the mere existance of some procedural uncertainty on other issues and on other topics hasn't stopped

the Supreme Court before. Some legal experts are calling this lawsuit against Texas a ail mary pass, a delaying tactic. Do you agree? I think, based on the history and practice of the federal government suing states when they are engaged in unlawful conducts, particularly unlawful conduct that is existent with the demands of the federal program, I don't think this is some completely outlandish tactic out of left field. I think it has a very strong basis and law

that doesn't necessarily need it too like to succeed. But I think it was right for the federal government pilates. What are the grounds that the Justice Department is suing Texas under? So the United States is arguing that it can sue Texas for really two distinct reasons. The first set of reasons are because the Texas law interferes with access to abortion and is therefore in violation of the Supreme Court cases, saying that people have the right to

opinion an abortion before viability. And what the United States is asserting is that it can effectively raise the rights and raise the injury to the people who are denied access to abortion in Texas right now. And it can do that because the state has deliberately sought to insulate itself from judicial review and enforced and an act in

unconstitutional law. So the United States says that only are we asserting the rights of people who are denied access to abortion, we're also enforcing the supremacy of federal law and the supremacy of the Constitution. And that is an interest that we the United States, as the federal government found by the Constitution and the supremacy of federal law

can rate. The second set of reasons are that the Texas law interferes with the ability of the United States to carry out a variety of federal programs that require federal contractors or federal officers in certain circumstances to assist people in obtaining abortions if they want them, so, for example, people who are part of the Federal Job Corps, people who are in federal prison, people in the military, various federal regulations or policies say, if people in the federal

governments custody or in the federal programs desire and our constitution only entitled to have an abortion, then the federal government has to assist them in getting one. And so the state law that's possibly subjecting those federal officers and federal contractors to liability is interfering with federal programs, and

that's something that states can't do. Do you see any procedural issues that Texas might raise, for example, Standing Texas is absolutely going to raise a host of arguments about why the federal court can't or shouldn't hear this case. You know, one thing they will argue is that the United States hasn't truly been injured and that the United States can't assert the rights of individual people who want

to obtain abortions. And I guess what I would say is, yes, maybe it's not typically the case that the federal government is bringing lawsuits to enforce or vindicate people's rights. But it's also not typically the case that states deliberately engineer their laws to deprive people of their constitutional rights and makes the law unchallengeable in court. So yes, lawsuit is new in some respects, but it's new because the underlying Texas law that it's speaking to challenge is itself so

unprecedented in novels. The second set of interest, however, the idea that this Texas law interferes with federal policies and programs. That's pretty well established that the United States could do when state law is interfering or undermining some federal program or potentially interfering with federal officers or federal contractors. We're assuming that this case will eventually reach the Supreme Court.

How do you think the justices will align? I mean, I think, based on what they did in the abortion providers lawsuit, as well as their hostility to the abortion right, I think it wouldn't be unreasonable to expect that the Supreme Court will not allow the United States to get this abjunction against the Texas law. But that's not because

the United States isn't right on the law. It's because, again, this Texas law is so unique that there hasn't been a lawsuit under precisely these circumstances that the Supreme Court might feel compelled to follow, and in part because of that, their skepticism of the underlying constitutional right might lead them

to not permit this lawsuit to go forward. What do you think of constitutional law scholar Larry Tribe suggestion that the Justice Department could use a section of the Criminal Code designed to go after the ku Klux Klan to prosecute individuals who are trying to enforce the Texas abortion law. So that's possible. There are some procedural issues with bringing in that case, for example, whether the private individuals are persons acting undercolor of state law for purposes of the

KKK Act. And more importantly, I think even if the United States were to win a lawsuit against some individuals who might enforce the law, that wouldn't be a lawsuit that resulted in the court ruling that no one in any capacity could enforce the law. That's what the abortion providers are trying to get in this case that the

Supreme Court hasn't allowed to proceed. And merely doing you know, one individual, let's say John Doe, from doing to enforce the Texas law wouldn't prevent Jane Doe or any other John Doe from enforcing it. So merely getting a lawsuit saying John Doe would be in violation of the KKK asked if he brought a lawsuit to enforce the statute, might not prevent other people from trying to enforce the

Texas Statute. I want to turn to the state court proceedings for a moment, because abortion rights advocates are going to state courts in Texas. They're seeking temporary court orders against the group Texas Right to Life, and some activists who have been vocal. Is that a valuable effort. It's valuable, but it's not going to bring back abortion access in Texas. And we know that because the abortion providers have already obtained temporary restraining orders against Texas Right to Life and

a few individuals. But as I was saying, what the temporary restraining orders do is they only protect that one organization, Texas Right to Life, or that one individual, John Doe, from bringing a lawsuit. They don't prevent any number of other individuals from doing the abortion providers, and so they don't actually allow the abortion providers to reopen and start offering abortions more than six weeks after someone's last period.

And we know that again because the abortion providers pay these arrows and yet they are still not able to offer abortion. I've read that the abortion rights advocates are hoping that this will be a vehicle for them to get a ruling from the Texas Supreme Court striking down parts of the law under the Texas Constitution. Is that possible, yes, But that requires the plaintiffs to be able to get a case to the Texas Supreme Court where the court

could actually prevent the state from enforcing the law. And the same procedural issues that the United States Supreme Court identified with the case brought in federal court would also apply in state court. And just given who's on the Texas Supreme Court, I don't really see that going much better for the providers. Possible it would, but the same issues that applied in the federal court proceeding would apply in the state court proceedings. What impact does the Fifth

Circuit's decision standing the stay have. So the Fifth Circuit decision basically thus made official what had already been going on.

So what the Fifth Circuit had done was put on hold the district court proceedings that were on the precipice of considering whether to enjoin the Texas law, and before the law went into effects, the Fifth Circuit had issued a temporary or administrative stay, putting those proceedings on hold, which prevented the district court from considering the provider's request for an injunction. Now, I Fifth Circuits just kind of

made that official. They issued an opinion saying, yes, these proceedings are stay, that is, they're put on poles and we the Fifth Circuit will determine and whether the disrecord was correct to allow the abortion providers to sue various state officials, or whether instead those officials are immuned from the lawsuits. I want to get your reaction to what

Texas Governor Greg Abbott said. He said that women who are raped still have six weeks to get an abortion, and also that Texas would work tirelessly to get rapists off the street. I'm not even sure where to start with how absurd that statement is versus the law applies basically from six weeks from the date from a person's last period, so it's not six weeks after gestation, it

is six weeks after your last period. That might mean it is impossible for tests to detect whether someone is pregnant in that window, and that would make it prohibitively difficult to get an abortion during that window, and Texas also imposes a bunch of other requirements on people, multiple appointments, waiting periods, and so on that could easily push someone outside of the six weeks from their last period window, even if they tried to get the abortion as soon

as they are able to. Second, is the idea that Texas is all of a sudden going to be able to prohibit rate raises questions one, why haven't they tried to do that before? And seconds, That's just not how it works. You know, Texas can say all of it wants, but rape is still a problem, and sexual assault is still a problem in this country, and Texas isn't going to be able to eradicate it just by the governor

announcing that he would like to. Does this indicate that anti abortion activists have finally found and crafted a mechanism, a law that can stop abortions, and that you know, other states are now going to follow them. I would frame it in slightly different terms. I would say anti abortion ASTs activists have finally arrived at a law and finally constructed a Supreme court that will allow them to ban abortion, possibly without the Supreme Court ever having to

formally over rule gro versus way. Thanks for being on the Bloomberg Laws Show. Leah. That's Professor Lea Littman of the University of Michigan Law School. And that's it for this edition of the Bloomberg Laws Show. I'm June Grosso and you're listening to Bloomberg