Texas Ruling Shows Roe v. Wade in Jeopardy

others named in the lawsuit. The ruling could be a bad sign for abortion rights advocates as they wait word on the fate of Roe v. Wade, the landmark ruling that legalized abortion in this country. My guest is Elizabeth Stepper, a professor at the University of Texas Law School, tell us what the Supreme Court decided. The Supreme Court issued a very narrow win for abortion providers. That's really more

of a loss in practice. So the Supreme Court held that the abortion provide riders could proceed in their lawsuits only against state licensing authorities, so the sort of medical boards, nursing boards that discipline doctors and nurses. But the court said that the abortion providers can't pursue their lawsuit against court clerks or state court judges or the Attorney General

of the State of Texas. In practice, what this means is that the abortion providers will go back to federal district Court in the state of Texas to litigate against

the licensing authorities. It means though that sp eight remains an effect, it also means that the abortion providers are going to have a hard time getting the relief that they really need to resume their procedures because even if they win in junctions against the licensing authorities and the district court concludes that sp A is unconstitutional, that injunction isn't going to apply against the court clerks, and the court clerks are really essential because the argument us they

could stop SBA lawsuits from going forward, they would just be enjoined blocked, that is, from docketing complaints by private citizens that can be filed under the Texas law. So because they don't have that, abortion providers really are facing a laws they can't start up serving patients again, at least at this point. Do you think the court was just trying to find a way to allow the case to continue to try to quiet the public fewer around it.

If so, it was very strange, right, Um, It's sort of baffling what happened at the Court over the past months, because the Supreme Court had SBA before it at the end of August, had the opportunity to stop SB eight from going into effect, when it failed to do so, and frankly surprised a lot of people and failing to block the law before it went into effect, given that it's straightforwardly uncons institutional to have a six week ban

under the Court's presidents, that was shocking. So when the Court then took up the issue of SPID again, that seemed to suggest that the Court was responding to public pressure and was going to act differently, if only to preserve the authority of federal courts to decide constitutional questions.

But that's not really what happened. Then last week when we got a ruling again from the Court, because the Court didn't say that federal courts have the power to substantively block these state court clerks from docketing the petition, and it's sort of weak relief for the abortion providers that they might get an injunction against the licensing authorities, because really the licensing authority power is a power to discipline after the providers have been sued and after a

judgment has been issued under spiate in favor of private plaintiffs. So it's not super helpful to the providers. It doesn't lift the status in Texas, which is that abortion is effectively blocked and we don't have our constitutional right to abortion in place. Justice Neil Gorst wrote the majority opinion, explain his reasoning. So it was an eight one decision, but it doesn't really reflect unanimity of the court justice course, which had to go through a number of the defendants

named by the abortion providers. So he said that the judges and court clerks have sovereign immunity, so they're immunized due to concerns about federalism. So federal courts are limited in their ability to tell state actor, especially state court systems, what to do, how to approach litigation, and so his argument was that these actors have immunity under a doctor

known as ex parte young. He also said there wasn't a real case in controversy because the judges and the court clerks are not oppositional to the abortion providers the way your average defendant would be. He then said that Attorney General Paxton was not a proper defendant. Here, the abortion providers had argued that essentially the Attorney General had delegated authority, had empowered private citizens around the country to act as his agents in the enforcement of this statute.

But here too, Justice Corsets said the abortion providers had not identified a proper defendant, that the Attorney General doesn't have the power to force sp A to all that was left where the licensing authorities, and they're Justice Gorsuch said, you know what, there is evidence in the way that the statutory structure worked that the licensing authorities could ultimately enforce sp A. The problem with that reason in thing is that we could see the State of Texas go

back to the drawing board, make clear that the licensing authorities don't have any power to enforce SB eight, and then there's no defendant left at all, no one for the abortion providers to sue. And I expect we will see that model in other states that are thinking about copycat SBA abortion laws. It was an eight to one vote, but there is a blistering descent by the liberals. Justice Sonia Sotomayor wrote the court should have put an end to this madness months ago, before s b A first

went into effect. So Justice Spread of Mayor on the issue of state immunity pointed to the fact that ex per Day Young contains an important principle, and that principle is that states can't create an end run around the Constitution. They can't create a system that doesn't allow federal court

oversight of federal rights. So even though there's a language and export a Young that suggests that normally state court judges can't be sued, um that the Supreme Court here should have allowed state court clerk to be sued and should have done so on the basis that otherwise Texas has purposely created a statute that avoids the federal courts and allows end run around individuals constitutional rights. What happens now in Texas courts, So there's still so much going on.

So the abortion providers returned to federal courts, and in the district court there is litigation in Texas involving fourteen cases that were consolidated and where the Texas Judge judge people just last week did conclude that a number of the provisions were unconstitutional as a matter of the Texas constitutions. This was a decision, as he said, was about civil procedure,

not abortion. So he made a number of rulings in those fourteen cases on the issue of standing and the statutory damages award, and also where the proceedings can be filed. He did not issue an injunction, but we can expect that when the providers go back to the various courts in which these fourteen cases have been filed, that some injunctions will issue again. The problem is that sp eight has constructed a regime that doesn't really allow for finality.

And finality is an important due process rule of law value that means you can't keep being food you don't have the specter of a future lawsuit hanging over you after you win. But SPA creates that exact system, so it says things like that there's not going to be issue our claim preclusion, so once he's litigated a claim, me litigated an issue, it's then not final for later lawsuits. It also says that even if you win, if your win is ultimately overturned on appeal, you're going to be

held liable for the abortions provided in the interim. So it is possible that we will see some abortion providers based on judge People's decision in the Texas courts, and the and the subsequent decisions in Texas Court begin to perform abortions again, but they will only do so with a real cloud of possible potential future litigation hanging over them. Everyone is looking towards the Mississippi case. Does this in any way indicate what the Court will do in the

Mississippi case that it will overturn Roe v. Wade. I would read the Mississippi case uh one where the outcome is fairly predictable, um that Mississippi is going to win. I'm not sure the degree to which the SB eight opinion tells us anything we didn't already know. Maybe what it suggests is that the Conservatives are going to act

as a block. And I think you know, after the oral argument in the Mississippi case, there continued to be a lot of discussion over whether Chief Justice Roberts could convince other conservative justices to adopt something that looks slightly

more moderate. It would not be moderate, but slightly more moderate or sneaky than saying the words we overrule Roe v. Waves I would say that s the eight opinion maybe suggests that he has really lost controls of the court, that it's no longer the Roberts Court, it might be the Barratt Court, it might be the kavanaughh Court, it might be the Gorsage Court. And it doesn't look like he's going to be able to push conservative justices to at least, through a sleight of hand, pretend that they're

less conservative than they've seen. And without any explanation, the Supreme Court turned away the Justice departments bid to block the Texas law. What do you make of that? Right? So, the Justice Apartment Department had actually um sued and received relief on the merits, but district court had ruled that s P eight was unconstitutional under Supreme Court doctrine UM. And then the Keiths went up to the Fifth Circuit, which lifted UH, stayed the injunction um, and blocked abortions

yet again. They briefly were being performed for about a thirty six hour period UM, and the Justice Department went to the Supreme Court, which is now UH dismissed the petition as improvidently granted, which is a Supreme Court way of saying, oops, we should not have granted this petition. Let's send it back to the Fifth ar gut for oral argument and decision on the merits. So the Justice Department is now in the fifth circuit um and we'll see when the Court is willing to hear arguments in

that matter. I would suspect sometime early in the new year. Was it was that just a Supreme Court kicking the can down the road for a bit. So it was, you know, after oral argument on s B A, folks predicted that the abortion providers would win. And because the abortion providers won and would be able to speak full relief, it made less sense for the Department of Justice to pursue a lawsuit because there were individuals who could assert

the Constitution against this law. But the Supreme Court didn't really give abortion providers a win. Right. There's still no person who can globally challenge s B eight in the federal all courts. So that actually should have put more pressure on siding with the United States at the Supreme Court. But it's exactly the opposite of what the Court did.

It really did kick the can down the road, maybe with the idea that by the time the Justice Department suit comes back to it, it will have a viscerated the right to abortion in the Mississippi Gay Indscent Justice Sonia Soto Mayor said the ruling could reach beyond abortion to enact laws that nullify constitutional rights from abortion to guns, to religion. And that's exactly what the governor is trying to do in California with regard to guns. Yes and no, um,

you know, to some extent, it's a political stunt. Um, it's a political stunt because the California law that the governor may or may not propose is one that doesn't actually infringe on constitutional rights. Right. So the idea is that, um, the law would allow one s fellow citizens to sue one for you know, providing ghost guns, providing assault weapons and manufacturing them, um, and so on owning them. But none if those are rights protected by the U. S.

Constitution or any interpretation of the Supreme Court. The Supreme Court relatively recently determined that the Second Amendment, which creates a right to form militias, extends to gun ownership in one's home. But they were talking about handguns, and they were talking about in one's home. And courts of appeals that have dealt with issues of assault weapons or ghost guns have actually sided with the government held that there was no violation of constitutional rights. So in that sense,

it's the dis analogy. We would have to see something um that got it with core of constitutional rights, which is possible. The Supreme Court has really handed both blue and red states a template for designing an espiate that applies the speech or guns or the takings clause. Thanks for being on the Bloomberg Last Show, Liz. That's Professor

Elizabeth Supper of the University of Texas Law School. The House has voted to whole former White House Chief of Staff Mark Meadows in contempt of Congress after he stopped cooperating with the January six committee investigating the Capital Insurrection. Meadows is the first former White House Chief of Staff nearly fifty years to face prosecution. Here's Committee Chair Benny Thompson and Committee Vice Chair Liz Cheney. And when a witness defies the law, that amounts to more than obstruction

our investigation. It's an attack on the rule of law. We wish that we did not have to meet today to urge our colleagues to vote vote criminal contempt for one of our former colleagues and the former chief of staff to President Trump. We don't take this step lightly, but Republicans denounced what they called overreached by the Democrats. Here's Representative Jim Banks. MR. Meadows agreed to sit for a deposition if it was limited to areas not protected

by executive privilege. He tried to cooperate, but the Select Committee didn't care. The near party line two two to two hundred eight vote on Tuesday is the second time the Special Committee has sought to punish a witness for defying a subpoena. Former Trump adviser Steve Bannon has already been indicted for criminal contempt for refusing to testify to the panel, and he awaits trial in July. The question now is whether the Justice Department will decide to prosecute

Meadows as it's prosecuting Bannon. Joining me is William Banks, a profess or at Syracuse University Law School. What's the import of the House voting to hold Meadows in contempt of Congress? Well, I think the Meadows case is similar to the Bannon matter and others that may be coming down the pike. With the continuing investigation. They authorized the Justice Department to proceed with prosecution. It's a referral, it's not a prosecution itself, and it is certainly not the

end of the road. So, just as they did in the Bannon matter, the Department is going to have to consider whether to convene a grand jury to indict Meadows. The questions are a bit different with Meadows than they were with Bannon, because the Meadows, of course, with Chief of Staff, he had a close relationship with the President as an official matter. Bannon did not certainly did not

at that time. So the questions about executive privilege will be a little more delicate and nuanced, I suppose in deciding to what extent Meadows might be privileged in the material that he wishes to withhold from the committees. As we know, he was cooperating up to a point, and some of the stuff that he turned over seemingly is

of value in the January sixth investigation. So I would think that there's more there that the committees would very much like to have, and Justice will have to figure out whether they can reasonably request it in light of claims of privilege that he might make. His claims of privilege would have been stronger if he hadn't turned over those documents, and if he hadn't written a book on his time in the White House. Will justice consider that

as well? I think they will, And you know, I think there's lots of room to navigate the area of executive privilege. And you know, underlying all of this is the fact now that the president that he was trying to protect is no longer the president, and that the current president has authorized the investigations, so that colors what the courts might say about arguments of privilege at this

stage of the game. Turning to another subject, the District of Columbia has sued the Proud Boys and the Oathkeepers to right wing groups for allegedly conspiring to terrorize the US capital on January six. Tell us more about the lawsuit. Well, this is a very interesting development. The government of the District of Columbia is suing in civil court the Proud Boys and the Oathkeepers and many of the individual members of those organizations for damages as a result of their

attack on the Capitol on January the six. As we all know, there there is ongoing criminal investigations of January six by the federal government, and many of the Proud Boys and Oathkeepers have been implicated in those criminal investigations. Some of them have than charged, a few of them have even taken Please most of them are defending against

those actions, but the civil suit is something different. D C. Of course, the DC police in particular, we're a hard hit on January six and the many injuries two officers. Tremendous amount of resource was committed to defending the District Columbia on that day and the days after, So the DC is trying to recoup some of what they lost. The Proud Boys dissolved their national leadership after January six. That is being run by local chapters. So where is

the money for damages going to come from? If DC wins. Yeah, well that's a very good question. There may not be much money for damages except to the scent any of these individuals have have means, and probably not many of them do. It is true that they've dissolved their national leadership and their strategy seems to have changed to try to influence local communities, school boards, local governments, and the like.

That certainly doesn't insulate them from from the reach of federal law and litigation, but they may be judgment proof, so that you know if there is a judgment. I think the law lines up very strongly in favor of the government here. If they do get a judgment in court, it may be relatively unenforceable, but still would send an important symbolic message. The d C Attorney General said, this act was not a protest or a rally. It was a coordinated act of domestic terrorism. So why aren't they

being prosecuted for that by the Justice Department Domestic terrorism? Yeah, well, there are a couple of issues here. The basic issue is that there is not a discrete crime of domestic terrorism.

There are a series of times that can be charged related to the acts that we would call domestic terrorism, but because of concerns about the First Amendment, and because of concerns based on our history of protecting expressive conduct, we've been very careful not to define something called domestic terrorism. The other point, though, is that you know the law

is an historical irony here. The law into which these individuals are being sued was was passed after the Civil War, and it's known euphemistically as the Ku Klux Klan Act because it was put into place in eighteen seventy one to allow the government to stand in the way of the clan that was trying to disrupt the newly reconstituted states in the South, and they were doing essentially with the Proud Boys and the Oathkeepers did on January six,

trying to interfere with the conduct of government affairs and government business by getting in the way of government officials. So I want you to listen to what a lawyer for two of the defendants named in the suit, Jonathan Moseley, said, quote, neither the Proud Boys nor the Oath Keepers were remotely interested in obstructing the Joint Session of Congress on January six, because that would leave no one as president, elevating Nancy Pelosi to the presidency. So I'm wondering how you take that,

whether it's just sort of tongue in cheek. It's not a real defense. It's not a defense. I mean. So, of course, the charges in the indictment or in the civil action here today. The complaint by the way, runs at pages I read through it this morning and and I was cursing you under my breath. I'm sorry, I'm joking.

Is quite an interesting complaint. So that the charges under the federal law of the so called ku Klux Klan actor is going to require that the development who that the individuals conspired to intend to intimidate, to coerce, to disrupt UH these officials from going about their business. I think from what we've learned in the criminal investigation so far and what we could see from video and still images of that day, that's exactly what was going on.

Whether it was to leave Nancy Pelosi as as putative president or not. They were attempting to disrupt the affairs of Congress as they tried to certify the results of the election. So it's going to require proof. But the proof, you know, is essentially been developed by the Justice Department

on the criminal side and and the civil court. The dc UH officials who are prosecuting the case bringing the case concertainly suit use that material to approve their case against these individual Proud Boys and Keepers and against the

organizations themselves. This isn't the first civil lawsuit that's been fine held against the members of the extremist groups who stormed the capital, because several members of Congress have sued leaders of the two organizations, former President Donald Trump and his former attorney Rudy Giuliani for conspiring to incite the insurrection. Seven Capital police officers have also filed a similar lawsuit, so the cases would seem to have the same witnesses.

Could the cases be consolidated and tried together? That seems unlikely given the disperate nature of the plaintiffs here. You know, members of Congress and the DC government aren't going to be co plaintiffs in a lawsuit. There would be an interest in consolidating at least for the purposes of proof, and maybe the the federal district court judges in DC can figure out a way to get that done if

it goes that far. You know. The other the other important action here that serves as a president, of course, is the Charlotteville judgment against some of the same groups and individuals. It was recently determined by a federal court in Charlottesville with massive assessment of damages. As you question you raised before about whereas that money going to come from to pay the damages? No one knows, but you know, a significant million, multimillion dollar damages award was given for

the actions undertaken in seventeen in the Charlottesville riot. Thanks for being in the show, Bill. That's William Banks, a professor at Syracuse University Law School, a divine. US Supreme Court left in force New York's mandate that healthcare workers be vaccinated against COVID nineteen, refusing to order exemptions for twenty providers who say they object to the shot on

religious grounds. There was no explanation from the majority, but this case follows a similar rejection in a main case in October, Justice says Neil Gorsuch, Clarence Thomas, and Samuel Alito dissented, with gore Such suggesting that New York Governor Kathy Hokel had acted out of anti religious animals, among other remarks. Hopel had said in September that people with religious objections to vaccine mandates quote, aren't listening to God

and what God wants. Joining me is Dorrit Rees, a professor at UC Hastings College of Law who specializes in vaccine policy. There was no opinion from the majority, but was this expected? Yes and no. So on one hand, we already have one taste on related stat the main case in which the majority super courts refused to stay similar mandates. On the other hand, the New York factor were a little treatiers on two grounds. First, New York initially proposed to have a really dious exemption and then

took it out. And that is the issue for the disrecord judge that's insually stayed their mandates in one of the three cases. And second Justice sus quoted statements from the current acting Governor of New York could be used to suggest those hostivities religions here. So Justices Neil Gorse, Clarence Thomas, and Samuel Alito dissented. Justice Gorsage, as you say, criticized the New York Governor Kathy Hokel, But he also suggested that she had acted out of anti religious animus.

Did that seem like it was going a little too far? No, And here's right the Justice is building on. First of all, I think it's unjustified that this is building on the decision from two sousand and eighteen by the Supreme Court

in Masterpiece Take Shop. In that case, the Supreme Court majority found that the Colorado Commission of the Rights acted after hostility to religion when it's penalized the baker that refused to say he cake for a same sex couple, and the Supreme Court you stay meant by commission members to show stility to religion. So in this use. The Justice was following that earlier precedent. He was not targeting

the governor out of the blue. He was following a previous Supreme Court decision that did look at artificial states. The problem with that is in that previous case you had a limited commission, and the statements by members could be used to suggest how the commissioned in entirety view. Even then, it was problematic because Latin on specific statement

is treating. Here. The statements in question were the governor and statement outside the amandaged the Health Department man that did not include this statement, and the governor wasn't the one that issued the decision, So using the statement, it's somewhat out of context. But the question of hostility to religion is now part of our laws. So let me ask you this about the vaccine itself and about the

religious objections to the vaccine. The petitioners said that they objected to the vaccine's origin from abortion derived fetal cell lines and testing development or production. But New York said first of all that none of the vaccines contain aborted cells, but the use of fetal cell lines for testing is common, including for the rebel of vaccination, and that healthcare workers are already required to take. So what is the religious objection?

So first of all, we're now it's really tricky ground. We can't when we examine religious objection assess whether it's logical. The question is and the argument you're raising kind of show how tricky is to a type of it's really hard to say when do we move from the belief valid. The city is well placed to assess whether the objections here.

For example, it can say, if you've taken mm R but in which the rubella vaccine has been grown on cell lines descendants from abortion from the ninety six feet if you've taken that and you're now exchuses to take a copage. But since that has a much more tenuous connection to those things that old Ler's cell lines, you need to explain to us why and why we should believe you that this really is the reason for your objections.

That's totally sad, because you can say, if if you don't have a problem with the closer connection, we don't believe you that now you have this problem. On the other hand, if a person makes a valid distinction here, then you can't disfuse them because you think their position doesn't make sense. The question is not that their position makes sense, the question does they see I know this

is a really hard line to draw. It's one of the problems with it is existed, and one of the reasons I think it makes sense not to give a really dessition in these cases because at the end of the day, we can't really assess whinc who was not without the kind of close politics policy of people's belief is that can lead to the state they rect trying to step into people's conscious It's really hard to do.

And further, the reality is that we have a lot of the things that for most of these people, the concern is more about the safety of the vaccine than about any religious issue. If that's the reality, the concern really is more about safety. We're going on is that a lot of people are making untrue praise about religions, and applying a religious exemption would probably reward the people that are better applying about this rather than the people who might really be re feered. There are some people

that probably have some religious objectives to the vaccines. For example, is there maybe people who for years have rejected modern medicine and religious grounds. Some of these people may really believe that the connection to the NINETI abortion is a strong reason not to use this vaccine. But there's a lot of reasons to think that many of these people are are looking to get out of vaccines because they're concerned about safety and are last enought of this because

they've found this arguments online policy. This is frankly not very easy to do. So do you think this is the last case that we'll see involving the vaccine and religious objections at the Supreme Court? Or they'll try again? Oh, there are going There's going to be a lot more cases. Remember that these cases haven't been fully decided by the Supreme Court either. Right now, the only decision is not

to give an emergency to stay for the mandates. We don't even know how the FO Court will decide when the food cases before them and in the previous case, and I think that we can assume that that's there still the reasoning. In the main case, Justices Cavano and Justice Connie Barette and signed onto a concurrence but said we're not giving a stay because we think this shouldn't be done during their emergency basis. We shouldn't change the law during an emergency procedure, we should wait for the

school case. They didn't say how they think they're going to decide the folcase. So then why see case is the second case on exactly the same issue. In this previous case Mills versus though the Supreme Court was asked to give a stake for main healthcare worker mandates, which also didn't give a reached exemption. So this is kind of the second romp in that's the case. Justices a conny Bread and Cavano is signed onto a concurrency said, we don't want to do this on an emergency basis.

So let's discuss where the other vaccine mandate lawsuits stand. President Biden mandated that employers with more than a hundred employees ensure that their employees are fully vaccinated or undergo regular testing and where a face covering at work. It was set to take effect January fourth, but it's already been challenged. How many lawsuits are there challenging the mandate. I think right now there's twelve lasses, all consolidated in

the sixth circuits. So they've been consolidated, agree to be addressed together. Do they have a similar reason for objecting to the mandate. The case has it's basically a vaccinated or test requirements for employers, so there's no question anyone with religious object to get tested. So it's not about religious freedom. The argument things the Oceans are focusing on two things. First schedual versus state parers and second the

power of Osha. The car of Sha is to act without specific assolization from Congress, and the car of ocean more generally ends applying it. Here is this within what can do using the requirements? Do you take anything from the fact that through a lottery the cases before the Sixth Circuit, which is conservative leaning. So right now we're waiting for a decision on whether this is being to

be heard on banks or by a panel. The conservative leaning is great to have a lot more implications if it's heard on banks than if it's on a panel. Then we're great to after yourself with the panel, and you can have different pannel in practically every course. It's probably is a question the conservative conservative justices may be more inclined to more carefully scrutinized administrative action and tampered

down on them. And we've seen several decisions from conservatives court which seens more aggressive in reviewing the administrative states. So it does matter, but it's also really descends on the city judge and how they seek. For example, is the Seventh Circuit in a decision by one of the leading conservative justices of thea in the US Justice instruments upheld Indiana University's seen them, so it's MATTERSS. It makes a difference, but it's also masters specific justice judges artist

who beside the case and which arguments. Well, thanks for being on the Bloomberg Law Show. Dort that storet Reese a professor at you see Hastings College of Law. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news, honor Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, and remember your tune in to The Bloomberg Law Show

every weeknight at ten pm Wall Street Time. I'm June Grossow and you're listening to Bloomberg o