Next Line of Attack Is Against the Abortion Pill

reason why it was going to be tough. You know what that reason was. It was a tough issue and energized the other side. And uh, people came out on the other side for a specific purpose. But the attack on abortion continues, and the fight over abortion pills is heating up. Medication abortions accounted for more than half of all abortions even before the Dobbs decision took away the

constitutional right to abortion. Joining me as an expert on reproductive rights, Mary Ziegler, a professor at u C. Davis School of Law. So, Mary, abortion was on the ballot in the mid terms in six states, and it won

in all those states. Well. This affirmation of abortion rights have an effect outside those states, well, I think it could help in other states if we have ballot initiatives in those states, I don't expect to see Republican lawmakers who were otherwise planning on passing new bands or kind of exotic enforcement mechanisms reconsidering Because in a state like Kentucky, for example, where voters decided not to vote for a state constitutional amendments saying there were no abortion rights, voters

also still returned Republicans to the state legislature. So I think people in those states, states like Texas, you know, South Dakota, are are not going to see the mid term as a reason to kind of pump the brakes when it comes to pretty sweeping laws. So I would expect to see more valid initiatives in the coming years. But at the same time, I think after the new year, when states to go back into session, I think we should also expect to see even more far reaching bands.

Medication abortion counted for more than half of all abortions even before the Dabbs decision overturned the constitutional right to an abortion. Now the fight over abortion pills is ramping up, and one anti abortion group is focusing on wastewater in a petition to the Food and Drug Administration, tell us

what that's about. So this organization, Students for Life, is trying a new technique because for a really long time, the plan, I think to challenge abortion pills had been to focus on the alleged safety concerns for pregnant women, right, and that hadn't really been working for a long time. The pills remained on the market, and as you mentioned, people weren't I guess, buying that argument when it came to their own safety. So the new strategy focuses on

almost environmental concerns. Students for Life has a petition now asking the Food and Drug Administration to require doctors who

prescribe the pills to take steps to dispose of fetal tissue. Um. They say it should be bagged, it should be treated as medical waste, and they argue that if that isn't true, it's going to create pollution that will negatively affect the environment, negatively affect you know, the water supply, various species that will be exposed to these drugs, and you know, I think this is a little bit of a hill, Mary, but it's likely if the petition doesn't work at the FDA,

which we expect to be the case, then there may be a litigation that ensues. Another conservative group is already suing the f d A over its approval of the

medication abortion drug decades ago. Okay, so this was a suit UM filed in Texas by Alliance Defending Freedom and a group of other anti worship groups, including the American Association of Pro Life Obstetricians and Gynecologists, and is arguing that the FDA didn't have the authority to approve mythopristone twenty two years ago when it actually did, you know. For a variety of reasons, but often centering on kind of the original basis for the FDA's decision to approve

mythopris stone um twenty two years ago. Democratic senators are urging the FDA to finish up its work to permanently make two pills more accessible. I mean, what else does the FDA have to do? I thought that in two thousand that they approved this. Well, the pills have always been approved, but they've been um covered by what's called

the black box morning and an r e MS. So these drugs are essentially these are kind of limitations and protocols that apply to drugs that are likely to have the most serious side effects, would be the most dangerous for patients. And so the pills have a it's been available, but they've been available on a much more limited basis in the way that you know, you would imagine a drug that could have a serious possibility for abuse or

addictive properties or danger. And so I think Democrats believe that those special limits are an outgrowth of politics rather than science, and they they believed that the FDA should eliminate some of those limits, especially while there's a Democrat in the White House and the FDA isn't potentially going

to be transformed by you know, a future administration. Mary about eighteen states banned the use of telehealth for medication abortion, meaning that in person medical screenings are required to get the abortion pills. So how does that affect the ability to get abortion pills. Well, there's what's legally possible and what's not legally possible. So I think, first of all, you know, there's the possibility of travel to get aborsition pills.

There are mobile abortion clinics. There are states that have identified by themselves as sanctuaries for people seeking abortions, and so you know, preventing telehealth abortions doesn't mean people can't travel to an adjacent state to get aworshion pills, and there are organizations like aid Access that send pills from abroad. Um, of course this is kind of an underground their networks of activists from Mexico who are supplying pills to people

in nearby states like Texas. None of that, of course, is explicitly contemplated by laws that banned telehealth abortion. But it's very hard to shut down the supply of aborshion pills regardless of what the letter of the law says. Do you think that abortion pills will be the target when Republican state legislatures start up in January? Or are there other abortion practices they might try to target next? I think we're going to see a combination of laws

targeting abortion pills but also to travel. Um. I think what states are are likely realizing now is that there are a lot of steps. It's it's kind of a like a chess match, right where states a lot of states are banning abortion, and then people seeking procedures are finding ways around those bands. And so I think you're going to see the next kind of countermeasure from states that's going to both look at ways of shutting down

access to these pills and stopping travel. So some legislators are considering, for example, measures that would criminalize, you know, companies and ceo s who reimburse travel out of state for abortion, looking at ways to prohibit travel for abortion or prohibit people from aiding others who travel for abortion, whether that's transporting them came for the travel laws extra territorially, applying criminal or civil prohibitions, right, so saying if you

perform an abortion in California on someone from Texas, you could be legally liable. Essentially, ways to close what I think states are seeing as loopholes in existing bands. It's worth emphasizing that's not likely to be the end of this story there. I think that's just likely what we're going to see next. Along those lines of traveling to

get an abortion. There's been this concern about now that in some states, prosecutors may request information from Google and try to track if women have been to abortion clinic, etcetera. And Google said that it would delete entries for locations deemed personal, including medical facilities like counseling centers, domestic violence shelters, abortion clinics. But a tech advocacy group, Accountable Tech, conducted an experiment in August and October to test Google's pledge,

and it was reported in The Guardian. The group found that searches for directions to abortion clinics on Google Maps, as well as the routes taken to two planned parenthood locations, were stored for weeks after they occurred. So I mean, is that something that people can trust or or should they just start not using Google you're using old fashioned maps or whatever. I think in general, in the world of kind of digital privacy, taking additional precautions is always wise.

Even if tech companies say they're concerned about this and they're going to try to take steps to safeguard data, I think there's there's a concern either one that those safeguards are not going to be as far reaching as we believe, or two that they may not even be put in place in the first place. So I think people should you know, if someone is thinking of getting into wortion or really doing anything that they wouldn't want to be tracked online before they go online or before

they go on their phones. They should look up steps to protect digital privacy, whether that's using another browser, not using a browser at all, not using certain acts. There are a number of steps, I mean, more than we would want to address in this conversation, but that should be the first step anyone takes before taking any of these kinds of decisions online. Besides medication and abortions. Is there another area that the anti abortion groups you know,

beyond abortion are targeting now? Well, I think there's been some conversation about chemical contraceptives. There hasn't, an, into my knowledge yet, been much movement in the States to prohibit these procedures, but groups like Students for Life have been active on social media, on TikTok and elsewhere, essentially suggesting that these drugs are in fact a word of stations.

At the moment, I don't think states have adopted that definition, at least explicitly, although some states have definitions of abortion that are open ended enough that they theoretically could encompass those drugs. You've also started to see some prominent anti abortion or pro life commentators, like Alexander de Stantis at the National Review, arguing that you know, birth control as

birth control is still unsafe for women. So I think you're beginning to see conversations that point in the direction of potentially an attack on chemical contraceptives. But I haven't seen state legis ter is doing that yet. I've just begun to see those conversations happening in the movement. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Mary Ziegler of the u C. Davis

Law School. The Supreme Court is still investigating the leak in May of the controversial decision written by Justice Samuel Alito overturning Roe versus Wade, and now The Times is reporting another alleged breach at the Court. According to allegations in a Time story published on November nine, Justice Alito leaked the outcome of a landmark case over religious liberties

at a dinner party at his home. In that decision, written by Aldo Burwell v. Hobby, Lobby allowed closely held corporations to claim a religious exemption from the requirement under the Affordable Care Act that employers provide birth control coverage as part of their employee healthcare plans. Justice Alito has denied the allegations, saying that any sugges estion that he or his wife disclosed the ruling early to anyone was false.

Alito was also the author of this year's controversial ruling overturning the constitutional right to an abortion, an opinion that leaked into the public more than a month before it was issued. The Court has yet to release the results of an internal investigation into that league. My guest is Mary Ziegler, a professor at u C. Davis Law School, who has written a op ed about this latest alleged breach. Mary, for those who did not read the New York Times story,

tell us about the allegations there. So. Rob Shank, who was a long time UM member of the anti aborsion movement UM and the kind of broader religious right, alleged that he had been working for years through his nonprofits to cultivate a kind of network of insiders at the Supreme Court, particularly wealthy donors. And you know he was doing this, he alleged both to gain access to an influence within the Court, but also you know, of course,

to raise money for his own organization. That there this this kind of access and information he alleged kind of had a value to donors who might in turn give to his nonprofit, and he alleged that he successfully cultivated donors who created relationship with with Justices Thomas Alito and Scalia, and that in particular, through these relationships, he gained a tip through Justice Alito about the Hobby Lobby case, in which listeners may remember, dealt with the contraceptive mandate of

the Affordable Care Act. Justice Alito, according to Shank, told one of these donors ahead of time how the case would be decided, essentially that the Court would side with religious employers in the case and invalidate the contraceptive mandate um, and that Justice Alito would be the one to write that opinion. Following the story, um, Justice Alito, you know categorically denied having leaked any information, So did the donors who um, you know, dined with Justice Alito. Both the

donors and the leado confirmed the relationship. It's worth emphasizing that denied the leak, But Shank you know, replied essentially that he had contemporaneous evidence like emails and statements from colleagues, suggesting both that you know, he knew something confidential and that he expected to in the hobby Lobby case. So it was you know, kind of yet another blow to a court that you know, had record low popularity and

questions raised about its legitimacy. Do the conservative justices really care about the public's opinion of the court? I mean it's hard to say, right, I think, not in the way that historically we've grown accustomed to. I think, you know, Justice Roberts, for example, would not have behaved. I think would not have decided several of the case's last turn the way the Court did in part because of his

concern for the public's perception of the court. So it's fair to say that the court's new conservative majority doesn't care about legitimacy or public perception um in a way we've we've grown accustomed to. Even for the conservative justices, I think the interesting question is do they have any concern at all? Right? Is there a point at which someone like Justice Leto does become anxious about how the public is perceiving their actions? And I think this this

story is an interesting litmus test. I mean, it's it's interesting at least that Justice Leado, I think, has been trying to say, you know, this story isn't true, and I would never do that. I mean, I think that those are the kinds of things you do when you worry about how people would perceive, you know, your actions. He he didn't, for example, say, you know, so what if I did that, Like, what difference does it make? Right?

I mean, it was pretty clearly, um, an effort to say this kind of behavior wouldn't have been acceptable, and I didn't engage in it. Um. You know, whether or not one believes that, I think that's that's still been Justice leado strategy over the summer. At a speech in Rome and at a recent Federalist Society dinner, Leado seemed

to be taking bows for that decision overturning abortion. I think in general, um, Justice Alito and uh and several of the conservative justices are are kind of evidence of how polarized, you know, not just the country is, but the legal community is. Because I think, you know, we would have expected the justices to be plugged into the fact that the Dob's ruling was unpopular and that it's sent shockwaves through much of the legal community. But of

course Justice Alito has his own legal community. The conservative legal movement is um, you know, broad and deep and has support across you know, a number of law school campuses, and a number of law firms, a number of lots of parts of the legal world. And I think in those communities, Justice Alito is getting all the approval and support he wants. And I think also from the standpoint of, you know, the kind of jurist he is, I think he sees his commitment to his own interpretation of the law.

A skeptic might take his own ideological commitments, however you want to look at it, his idea of what the right answer is, his fidelity to that is so important to these ot is worried about these the damage, I would say, to the institution of the court. And in some ways, I think to your point kind of relishes confrontations and criticism, doesn't just you know, display indifference, right,

that actually sort of enjoys the criticism. Again, it's sort of interesting to see if stories like this are still a bridge too far for some unlike the leader, right that even that there's some kind of trolling and some kind of enjoyment of criticism, and then there's this kind of allegation that might be a different, a different kind

of story. Democratic Senator Sheldon white House and Democratic Representative Hank Johnson wrote to the Court about the Times story and Ethan Tory, legal counsel for the Supreme Court wrote, there's nothing to suggest that just as a leader's actions violated ethics standards, relevant rules balance preventing gifts that might undermine public confidence in the judiciary and allowing judges to

maintain normal personal friendships. From that letter, it doesn't seem as if the Court is doing any investigation beyond asking Aldo right. I mean, I think that this is designed to help the Court's reputation or to diffuse questions about this. I don't think it will help. I mean, I think that it would have been possible to do something that would achieve that. But I think that the essentially the

letters suggests, and I don't. I am obviously not privy to what investigations went on within the Court, but the letters suggests simply that there's no evidence that was available to Supreme Courts Council to suggest that such a leak took place. The letter mostly restated Alito's denials and then suggested that the allegations made in the New York Times

piece were uncorroborated. Uh and then um further, I think interestingly suggested that there wasn't the kind of corruption that would be concerning to council because the donors in the case had no financial interest in any kind of case before the court, which of course wasn't really what Mr shank was talking about. Allegedly, he was saying there was kind of an ideological interest in the outcome of cases.

No one was interested in profiting financially, but they wanted to dictate the course of policy because of their their beliefs and their ideological commitments, not because of any kind of financial state. So that that also seemed kind of interestingly non responsive. Um again, I don't know if there was more of an investigation then we are aware of

from the outside looking in. But the letter didn't really provide a lot of new information or really explain beyond what Justice Alito and in the donors, who have been quite clear in their denials have have already been seeing. And as far as the leak of yet another Aledo opinion, the Dobbs opinion, supposedly there's an investigation ongoing, but it's been months and months and months and no one has heard anything about that investigation either, right, I mean, we

we just don't know. I mean, one of the things I think that that I think, unfortunately is is happening from the standpoint of faith and the Court is that the Court is an institution that often operates without a lot of transparency, and so when these leaks occur and then the public has no insight into what led to them or what was going to follow them, um, it doesn't really do the Court's reputation any favors. And that's

certainly true of the Dobbs weak as well. UM. I think the kind of some total of this is that more people in the public are losing faith in the Court is an institution, and I don't think that's something we should be excited about. Even even people who are skeptics of the quart are unhappy with the Court. I think it's not good for the country when when voters are losing faith and yet another democratic institution. In your op ed, you say that the justices feel insulated, and

you know they are insulated. They have these lifetime appointments and let's face it, impeachment. They tried to impeach former President Trump twice. It didn't work, and impeachment seems like not even a possibility really, So what can be done to at least keep them in check a little. Is there anything that can be done? Well? I mean, we know historically that UM Congress has done things to check the power of the courts. Congress is allowed to strip

the Court of jurisdiction and certain matters in theory. Other kind of court reform measures like adding justices or changing the number of justices UM could also be on the table. I don't have any reason to think there's any political will for doing any of that right now. UM. So I think we're in this kind of interesting cat and mouse moment where members of the Court seem to believe

that there's no consequences for really anything. I think with reason right because there don't really seem to be the consequences, and yet the public is becoming more and more disillusioned, I think to a point that's potentially dangerous for the court.

So I think that the question becomes, is there any step the Court can take that that goes so far that either politicians or voters reconsider UM their ideas that you know both that they are very unhappy with the Court, that they're not necessarily supportive of any kind of measure to change how much power the Court has or how it operates. Thanks so much for your insights. Mary. That's Mary Ziegler, a professor at u C. Davis Law School. The tide has turned for Donald Trump at the Supreme Court.

As President Trump had a good record at the court. The Justice has upheld his travel band, which restricted entry into the US from several heavily Muslim countries, while blocking him from ending a deferred deportation program. There were mixed decisions on subpoenas for his financial records, with one ruling

blocking the House from getting access. But now as a private citizen, Trump has had nothing but defeats at the Court, whether it's over the House getting his tax returns, the documents search at maral Lago, or records to the January six Committee. Trump has lost at the Supreme Court, and without much fanfare and only one dissent joining me is

Bloomberg New Supreme Court reporter Greg store So. Greg. The latest case that Trump has had at the Supreme Court concerned his tax returns, which I thought had already been decided.

But tell us about that well. Donald Trump was asking the Supreme Court to block the Internal Revenue Service from turning over his tax returns to a House Committee that says it needs them because it's considering legislation regarding to the disclosure obligations of presidents, and the Supreme Court, in a very performed two sentence orders, said no, we're not going to block that from happening at this point. The

I R. S can turn over those documents at any point. Uh, and it's possible we'll we'll see them publicly before the end of the year. I'm a little confused. I thought

this had been litigated already. His tax returns. There has been litigation, including about whether his accounting firm had to turn them over to a different House committee and to federal prosecutors in New York, and those returns and other financial information had been turned over to the prosecutors, but that they have not yet made it to any House committee and had not yet become public. Now that was

last week. A month ago, the Justices considered a dispute over that seizure of classified and other presidential records at Moral Lago. What happened there, Yeah, that that was an issue where um it was in some ways kind of a side show in that Donald Trump was trying to say that the Special Master who's reviewing the materials in the case should also be reviewing those those materials that

were marked as being a top secret. And uh. He asked the Supreme Court to intervene to say that those document should go before the Special Master as well, and again the Supreme Court said, no, without any public dissent, we're not going to do that. And in February, again it's his financial records. Who got them? In February. Yeah, this is a case that we that I alluded to earlier.

This is the DA in Manhattan has been trying for quite some time to get Donald Trump's financial records and that of his business as part of a criminal investigation. That was the case that the Supreme Court actually considered a while back. And in this case that the Supreme Court rejected, Donald Trump let the prosecutor get those financial records and so those are now part of that criminal investigation. And the January six committee also what papers were they

looking for? I mean, it's just so hard to keep track of all these disputes about records and papers. It seems like we've been litigating the financial record almost since the beginning of his presidency. Yeah, we certainly have the the case ofoving the January six attack. Are not his financial records, there are. These are other records. These are records from the White House that Donald Trump was trying to block the January six Committee from getting access to.

They included things material from his chief of staff, Mark Meadows. Um, this is a case that we're Justice Clarence Thomas got a lot of criticism because he didn't refuse himself from this case even though his wife, who was involved in the efforts to return the election, had been in contact with Chief staff Mark Meadows. And Uh. Not only did Clarence Thomas not refuse himself from the case, he was the one Justice who publicly said I would have stopped

the records from being turned over to the January six committee. So, Greg, through these last four cases, is there a similar thread or argument that runs through these cases. Well, you could say this. Look, these are when Donald Trump was president and he was arguing for things like a deference to my immigration policies and you know, protection of my time while I'm in office so that I'm not besieged with all these investigatory requests. The court was somewhat deferential to them,

and he did fairly well. Uh, now that he's a private citizen. Uh. You know, his claims for deference are experts on both sides of the issues say a lot weaker, and so the Court is doing a lot less willingness to intervene on his behalf. And in some cases they apparently think his arguments are are rather weak ones. And that's why we're not seeing any public disagreement when the

court rejects them. Are these four most recent cases and Trump losses all shadow docket cases, meaning cases that are not on the regular docket, that do not have full briefing or oral arguments. Everything we've been talking about here are indeed shadow doctor cases. Yes. Trump's reaction was to criticize the Court in a truth social post, saying, quote, it has lost its honor, prestige, and standing and has become nothing more than a political body. Odd since he

appointed three out of the nine justices. Yeah, that's a criticism. A lot of people on the other side of the political divide are lodging at the Supreme Court that it's become too political. Uh yeah. And of course, for Donald Trump, so much always comes back to election and the court on several occasions they refused to intervene in his behalf, refused to overturn the election defeat, refused to even entertain

arguments that the results were fraudulent. And you know that's what Donald Trump pointed to in the statement when even why would he even may be surprised and suppers ruled against you. They always do. So are there any other Trump cases pending at the court. There's not any Trump cases. There's there's a pretty good biding cage that I'm happy

to tell you about. Side just trying to revive his student loan debt release program that is currently on hold, and the sub administrations ask from the Supreme Court to lift that hold. And we could get action from them at any point. And we also could could get them saying we're going to hear arguments in the case. Really they might take it up as a regular case, put

it on the regular docket. Yeah, that's so what the Biden administration is saying is, Hey, if you're not willing to just let the program go into effect, at least consider what we just filed here as a as a so called certain petition. UH, agree to hear the case, schedule arguments, Maybe do it in February. Put it on a fast track. So we can get a final determination

one way or another. So the justices are considering overturning the conviction for so called honest services fraud of a one time top aide to former New York Governor Andrew Cuomo. Tell us about the arguments. Yeah, this is a guy named Joseph Cococo. He was a top aide to Andrew Cuomo, and he was accused of accepting bribes on behalf of a couple of companies with contracts. And there question in the case is there's this crucial eight month period in

which he wasn't a government employee. He had gone to work for the Cormal campaign. And the question is whether this federal law that bars the deprivation of honest services from the public, whether that can apply to somebody who, during a crucial period was not actually a government employee. And based on the arguments of the supremem word seems to think the answer to that is, yeah, probably not.

That we are worried that if we allow this law to be used against somebody over conduct that happened when they weren't a government employee, that that might mean that we are criminalizing lobby criminalizing somebody who is on the outside of the government who is just trying to pull the strings that they have that the advanced policies and are getting paid for doing that work. And they've been cutting back on these public corruption prosecution ends for quite

a while. Yeah, there's been a couple of recent cases. One the most recent one involved to allies as former New Jersey Governor Chris Christie involving the remember the George Washington Bridge Lane closing scandal. The court tossed out a couple of convictions there. Then back in sixteen they set aside the conviction of former Virginia Governor Bob McDonald. In that case, the court said the things he did didn't

rise to the level of official actions. The court in the McDonald case said that the governor could only be prosecuted for honor services bought if you did something that rose to the level of an official action. That it wasn't enough if you just arranged a meeting for somebody, that that couldn't be the kind of action that would let you be criminally prosecuted. What's the status of the

investigation into the leak of the Dobbs opinion. The status is we have received no word since that the day following the leak, when the Chief Justice said I'm going to direct the Marshal of the Court to start an investigation. He's not given the public any update. Has I even said whether the results will become public. No indication that the court has figured out what happened there For all we know that maybe the status for the foreseeable future. Thanks so much, Greg, I know it's a busy week

at the Court. That's Bloomberg News Supreme Court Reporter Greg's store. 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 Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune in to The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg