This is Bloomberg Law with June Brusso from Bloomberg Radio.
It was heart wrenching, you know, telling these stories over and over again about the most traumatic thing that's ever happened to us, sharing our grief and our loss in brutal detail over and over.
How close to dead do I have to be before I can fully access healthcare?
Amanda Zarowski and Lauren Miller are two of the twenty women suing the state of Texas over its near total ban on abortions, which they say force them to continue their pregnancies despite serious risks to their health. The lawsuit is among the biggest challenges to abortion bands in the country since Roe v. Wade was overturned last year. The women are not seeking to repeal the state's abortion ban, but rather to get more clarity on when exceptions are
allowed under the law. At oral arguments before the Texas Supreme Court on Tuesday, their attorney, Molly Dwayne, said, doctors don't know when they can provide emergency care.
The abortion bans as they exist today subjects physicians like my clients to the most extreme penalties, imaginable life in prison and loss of their medical license. And while there is technically a medical exception to the bands. No one knows what it means and the state won't tell us, but a.
Lawyer for the Texas Attorney General's Office, Beth Klusman, argued, the law is clear about the exceptions.
The song Instar judgment is reasonable. You should be fine under this law.
Joining me is Elizabeth Sepper, a professor at the University of Texas Law School. Liz tell us about the abortion law in Texas.
In Texas, we have a lot of abortion laws. We have a trigger ban, we have SB eight that allows for civil suits against people who help us abortions, and we have a pre rogue criminal ban that is only partially in effect. And these laws ban abortion entirely, with the rare exception of emergency situations situations that the statue refers to as life threatening.
Who are the plaintiffs in this law suit in what are they suing about? Specifically?
The plaintiffs here are women who have experienced pregnancy loss or other emergent and life and health threatening conditions in their pregnancy. Some of the plaintiffs are currently pregnant and efface a high risk of potential complications, and some of the plaintiffs are physicians who are confronting patients every day who they have to bring to the brink of death
before they can intervene under the Texas law. The plaintiffs prevailed in the trial court at this very preliminary stage, so what they got from the trial court was an interpretation of the Texas statutes that allows doctors to in good faith determine that there is an urgent need to act in order to avoid death or serious bodily harm to a woman.
So they're not specifically attacking the abortion bands as unconstitutional. They're looking for guidance.
The plaintiffs are looking for guidance as to what the statute means. The scope of what they're asking for is narrow. They aren't thinking to have the bands struck down as unconstitutional, but rather the clarification on how they work in emergency situations.
The penalties for doctors who violate the abortion bands are so severe, from loss of their medical license to possibly life in prison. Have any doctors actually been sentenced or try under these laws yet?
No, No one has been charged with violating the Texas abortion bands in large measure because we just aren't being abortions performed even in emergency situation.
I have heard in other states as well that doctors are hesitant to perform an abortion even when there might be an emergency situation because of the penalties involved.
Yes, the doctors are concerned by the bands because they risk losing their medical license, risk up to life in prison, really draconian penalties on top of that, right, they're not exactly sure how a prosecutor goes about proving that they've
violated the abortion ban in these emergency situations. If a prosecutor can make out a case against them by simply bringing forward an expert who disagrees with how much the person's health or life was at risk, then they think there's just too much uncertainty that any given emergency abortion or life saving abortion that they in good faith believe they need to do to save the patient's life could result in charges.
And so tell us what the argument of the plaintiffs is.
The plaintiffs argue that the abortion bands lack clarity. There is inconsistent language across a number of the laws, and they say that they need guidance on how the law is meant to apply in emergent situations and what they prefer as The best interpretation of the law is that doctors can intervene when they, in good faith see a patient in a situation where her life and serious health risks are at stake, and that they need not wait until death is imminent in order to act on that
good faith determination.
Did some of the plaintiffs actually come up against a situation where their life was at risk and a doctor didn't act.
Yes, many of the patients suffered really severe repercussions, including the named plaintiff, Amanda Zarowski, who became septic and spent days in the ICU as a result of being denied a medically necessary abortion for pre viable pregnancy. And as a result of that icy stay, she actually lost one of her fallopian tubes and so has much lower future fertility.
So now let's go through some of the state's arguments, and one is that the state claims the women filing the suit don't have standing to file the suit. In other words, they don't have a stake in the outcome. Explain that argument.
So the argument around standing shifts as circumstances changed. So the state of Texas says you can't bring a lawsuit unless you are pregnant and So the Center for Reproductive Rights has plaintiffs who are pregnant, and part of this is the notion that, well, if you're not pregnant, you can't possibly know that you'll be affected by the operation
of this abortion ban. But even with pregnant patients, they then say, well, you can't possibly know that this pregnancy is going to threaten your life to a degree to which you might become eligible for these medical exceptions. They're also plaintiffs tho, who are doctors, so they are on a regular basis confronting patient to whom they have to deny care because they cannot act until their lives are in danger. So the standing argument just isn't strong. As
part of this, Texas repeats over and over again. But it's not Texas's fault that people are denied abortions in emergent situations, but rather that it's the fault of doctors themselves, the individual doctors who are unwilling to act because of the statute.
And just as Jeff Boyd seemed a little incredulous about the state's standing argument.
Your position is that in order to challenge, to seek the kind of clarity that these plaintiffs are seeking, you have to have a woman who has some who is pregnant, who has some health condition that she believes places her life at risk or impairment to a major bodily function, but her doctor says, I don't think it does, and she has to then sue the doctor and maybe the Attorney general at that point, and then she would have standing.
I don't know if that would be the only circumstance, but you would at least then know that the law is the problem and not the doctor refusing to perform an abortion.
And the Assistant Attorney General at one point made this very stark statement. She said, a woman is bleeding or has amniotic fluid running down her legs, then the problem is not with the law, that is with the doctors. The state wants women to sue the doctors.
Yes, so this was an option that came up over and over again in the oral argument before the Texas Supreme Court. Is that when a person is in an extreme situation where they might be eligible under the exceptions to Texas abortion bands, what they should really do is see physicians who are unwilling to act to treat them. As the plaintiffs lawyer pointed out, this is a highly unrealistic view and impractical for patients in these scenarios to go out and shop for an attorney who can file
an emergency motion in state court. And on top of that, some of these plaintiffs are not pregnant people or people who are concerned about future pregnancies. Rather, they are physicians, and so the physicians standing would seem to be independent of the idea that plaintiffs should more properly be pointing the finger at doctors whose hands are tied by the law.
And the state is also arguing that the law is clear.
Yes, the state is arguing that the law is clear, though the state has been unwilling to explain the boundaries of the law right. Part of what's prompting this lawsuit is that, unlike in other states where the state Medical Board has offered specific guidance to physicians, the Texas Medical Board has been totally silent here, and nor has the
Attorney General issued specific guidance. And one would think that if the law were actually clear, right, it allows a physician to intervene or we're dealing with premature rupture of the membranes, for instance, or molar pregnancy or other scenarios that can commonly occur in pregnancy and threaten lives, that they would say so, and they have just remained silent both the Board and the Attorney General.
Is the state's position that women have to carry a feet as to turn even if the fetus is not viable or if the pregnancy presents a risk to the mother.
The state's position is that the exception is extremely narrow, so it applies to threats to life, but presumably would not apply to fetal anomaly.
Yes, that's right, and I believe one of the women had to carry a fetus to term even though she knew that it would not survive.
Yes, So part of the argument here is on that particular score is that the state isn't achieving any state interest when it makes women carry the term pregnancy is that are destined to result in stillbirth or a very momentary, hours long life for the baby.
Coming up next, where the Texas Justice is leaning in any direction? I'm June Grosso. When you're listening to Bloomberg, I've been talking to Professor Elizabeth Zepper of the University of Texas School about oral arguments before the Texas Supreme Court on that state's abortion ban. The Texas Supreme Court consists of nine Republican appointed judges. Did you see five of them leaning in one direction or another or did they seem split? What was your take on the arguments?
The justices seemed all over the map, honestly, And I don't mean that as a prediction that the plaintiffs are going to win here on the merits or across the board, but rather that there seemed to be some justices who wanted to find a way to deny standing to the plaintiffs, perhaps through this argument that plaintiffs should just see doctors and Texas is not really at fault, as the state claims, But others expressed real confusion over the standing arguments and
how it would be possible to deny standing to the plaintiffs. And I think they expressed some frost with the state right because here, the reason we're at the Texas Supreme Court, the reason we're in the court system, is because the Texas Medical Board has provided no guidance, because the legislature flowfully drafted an abortion van that can't be understood by
the healthcare providers subject to its terms. And so I think there was a lot of frustration on that score as to what they were supposed to do.
Right.
Once they find standing, then they are left with the question of how to interpret the statutory language. And depending on how they interpret it, they then have to come to the plaintiff's constitutional arguments that if the statute doesn't allow physicians to act to save health and life in
emergent situations, then it violates the Texas Constitution. We didn't see a whole lot of uptake of the constitutional argument, but there were some questions about in what way the Constitution would possibly reach the Texas abortion van medical dat So.
If the Texas Supreme Court sides with the state, is the case over.
Possibly right or very early on in the litigation if they're at the court on a preliminary in junction. So really the court is just determining whether the preliminary injunction ruling should stand. But what they say could essentially end the case. And certainly, if the Texas Supreme Court determines that these plaintiffs don't have standing, then yes, the case is dead on arrival.
And if the Texas Supreme Court denies the state's request to dismiss the case, then it goes back to the district court for a full trial.
Yes, we're very early on. So it goes back within the Texas state system to the Texas Trial judge for a trial on the merit.
Just this month, thirteen groups filed the Meeks briefs. What do you think are the implications for this decision in and out of Texas?
The implications are going to be felt first and foremost in Texas. The arguments that the plaintiffs are making as a matter of constitutional law are about the Texas Constitution, but it is part and parcel of a phenomenon we've seen in state courts so Oklahoma, North Dakota, Indiana have determined that their abortion bans has to have a life or a health exception because otherwise they violate protections on
life within the state constitution. So the Texas Supreme Court could here agree and further this trend toward recognizing some limitations on how far abortion bans can go.
And has the state Supreme Court made any rulings recently on abortion issues?
So the Texas Supreme Court has recently been involved in the back and forth over SB eight, for example, But what they've done there is usually take on relatively narrow questions with regard to SBA, the question was simply around whether the licensing board could be sued, and the Texas Supreme courts that know and therefore killed the SBA. What was left of the SB eight lawsuit after it left
the United States Supreme Court. So not a lot of activity on the merits of protections for abortion in the state of Texas.
Why are there so many abortion laws? Why isn't there one comprehensive law.
Part of it is that we had a series of laws that predate DOBS, which overturned or a viewwade. So we have laws that regulate abortions for minors, we have laws around informed consent, we have a number of abortion restrictions that pre date our total bands, and then we have our pre road Statute, for instance, which long predates DOBS in the contemporary moment. So there's just differences in language that show up when you look across all of the abortion laws.
We've seen backlash against abortion bands in other red states. Is there anything like that brewing in Texas?
We've seen very minor developments. The Texas state legislature this year enacted in extremely narrow affirmative defense to the abortion bans, recognizing that premature rupture of the membranes, for instance, and ectopic pregnancies of all kinds should not be within the abortion ban. But it's an affirmative defense, so in fact
it applies pretty narrowly. Doctors would have to be willing to face criminal charges or face revocation of their medical license and then raise a defense that this person was experiencing a defection ectopic pregnancy, for example. So pretty near in terms of the changes we're seeing. We do not have a process by which the people can put on the ballot a constitutional amendment that might protect reproductive rights or do away with some of the manifestations of our abortion bands.
And finally, the state really harped on the standing argument. Do you think the court will at least find that the plaintiffs here have standing.
Whether it's the doctors have standing, even if the women don't. It's almost impossible to imagine a scenario where you can't count the vote to say at least one plaintiff, which is all they need, has standing, because standing is a principle that's going to apply across different areas of law, and I don't think the Texas Supreme Court is going to be eager to totally shut the courtroom doors to plaintiffs in a lot of different types of lawsuits, not just abortion related lawsuits.
It'll be a while before we hear from the Texas Supreme Court. They're expected to rule by June. Thanks so much, Liz. That's Professor Elizabeth Zepper of the University of Texas Law School coming up next. Double Jeopardy at the Supreme Court. I'm June Grosso and you're listening to Bloomberg. A majority of Supreme Court justices seemed to agree that a Georgia man cannot be prosecuted twice for murdering his adoptive mother after a jury issued verdicts that found him both sane
and insane. The jury found Damien mc calrath not guilty of malice murder by reason of insanity for stabbing Diane McIlrath over fifty times in twenty twelve, but he was found guilty, though mentally ill, of felony murder and aggravated assault. The Georgia Supreme Court ruled that wasn't legally possible throughout the verdicts and ordered a new trial, but McIlrath argues that under the Fifth Amendment's double jeopardy clause. He can't be prosecuted again for the charge he was acquitted of.
Justice Neil Gorsuch joined some of the members of the court's liberal wing in expressing the importance of respecting a jury's verdict of acquittal.
The two hundred and thirty years in this country's history we have respected acquittals without looking into their substance and without looking at how they fit with other counts, and said, a jury is a check on judges, it's a check on prosecutors, it's a check on overreach. It's part of our democratic system.
And we do not ever.
Talk about whether they make sense to us. They may be products of compromise, they may be inconsistent with verdicts on other counts. We don't question them. And that this is a first time this issue has arisen here. Shouldn't that tell us something?
Joining me is former federal prosecutor George Newhouse of Richard's Carrington double jeopardy. I think everyone has some idea, perhaps incorrect, of what double jeopardy means from the movies and TV. Tell us what it means.
The double jeopardy clause of the Constitution and particularly the Fifth Amendment is very clear. It basically says that the government gets one shot, one chance to convict the defendant of a crime, and if the jury finds a defendant not guilty, then the government is unable to ask the judge for a retrial. It gets one chance. There are various exceptions to it. A big one, for example, is
the state is unsuccessful the federal government. A different sovereign can basically bring the defendant back up on the same charge, only this time of federal charge, and double jeopardy doesn't apply. But if it's the same sovereign here it's the state of Georgia, they get one chance. And the jury in this case apparently returned what appeared to be an inconsistent
verdict between three counts. The state is arguing that that should be an exception to the double jeopardy rule, and that is an interesting legal question.
Yeah, so tell us a little bit more about the different verdicts here.
Happy to So, the basic facts are this is twenty twelve. A delusional defendant, Damian Mcroff, believed that his mother was trying to poison him and as a result, stabbed her to debt. He of course, then washed up called nine to eleven, told the dispatcher what he'd done and why he was right to have done it. So clearly he went to trial on three counts, by the way, and that's where this comes up to the three separate charges.
The first one in under Georgia law is called malice of murder, which is equivalent to a first degree murdered I've always the most serious charge, the one that typically can carry him capital punishment. And then there were two other counts, a felony murder rule, which means that he killed someone in connection with committing a felony, in this case, an aggravated assault. And so the third charge was aggravated assault.
And you might ask why to prosecutors bring three separate charges when there's really one one act occur to killing, And they do that because sometimes they want to present the jury with the option of convicting on a lesser offense if they think they might have a problem with
the principal offense. And that's exactly what happened here. The jury deliberated, and of course the defense was he was insane, so he lacked the criminal intent to commit murder, and the jury deliberated and found him not guilty by reason of insanity on the first count, saying he was crazy, but on counts two and three, the felony murder and the aggregated assault, the jury found that he was sane
and convicted him. The State of Georgia, unhappy with that, went to the court and said, well, we need a new trial, and the court said why, and the state said, because these verdicts are logically inconsistent. You can't be crazy on one count, the worst count, but saints on the other counts, And that went all the way to the
Georgia Supreme Court, which agreed. The Georgia Supreme Court said the verdicts on these two different counts are logically repugnant, and as a result it vacated the not guilty verdict and told the state that they are free to retry him.
And that's what went up to the Supreme Court whether there should be an exception to the double jeopardy clause, and the exception would allow if the verdicts were logically inconsistent, which jury verdicts are, by the way, frequently, they'd be allowed to retry him.
George Prosecutors are normally not allowed to appeal acquittals are they, I mean, how do they even get to the Georgia Supreme Court.
Well, that's a great, great question. So clearly what happened is the prosecutors went to the trial judge and asked the trial judge to vacate the not guilty verdict. So in effect, they asked the judge to ignore the not
guilty verdict and set the matter over for trial. And that's where the double jeopardy issue arose, because, as I said, the rule in this country for the last two hundred and thirty years of justice courses pointed out is you only get one chance, and if that jury verdict comes back not guilty, there is can be no retrial.
You mentioned Justice Gorsuch and he was pretty fervent about the respect for acquittals. It's a check on judgers, it's a check on prosecutors, it's a check on overreach.
Is he right?
Justice Gorsage is absolutely correct, We don't. The court system does not second guess acquittals, though, for example, if the acquittal is based upon what's called jury nullification, they simply ignore the evidence. You know, where that the verdicts is illogically inconsistent between two different counts. The court system is not allowed to second guess that though, for example in this case, what usually happens here probably happened in this
case was the inconsistent verdicts were product of compromise. Justice Gorsage address that they may be products of compromise, they may be inconsistent with other verdicts. We Justice Courses said, the court system does not question those verdicts, and that has been the law in this country for two hundred and thirty years. As far as I know, Inconsistent vertis
happen all the time. I tried one as a prosecutor, and the judge said, well, we have two verdicts, one is inconsistent with the other, and the case is finished, so double jeopardy apply.
The George Solicitor General argued that there really had not been an acquittal because under Georgia law, a jury cannot issue special affirmative findings that facially contradict each other.
Well, I don't know about that, but the fact of the matter is whatever they issued, they returned a not guilty verdict on the principal count, the first degree murder malice of murder, and that resolved that case. So that's their argument. But I don't think it's going to gain much traction in the Supreme Court.
Yeah, Justice Katanji Brown Jackson said, even if we know that they are inconsistent. So what I mean the point is we've said a jury can issue in consistent.
Verdicts that is established law. Juries can compromise, juris can acquit sometimes based upon all of the These are powers that you won't find in any law book. So the jurors are not told they have these powers, but as a matter of fact, they can return any verdict that they deem is appropriate and compromise verdicts, which this point one probably was typically involves a logical inconsistency. So this
is something that happens a lot. This is and prosecutors notice, in fact, one might argue that's why they charge the two other counts. They'm act but lesser degree of punishment. It gives the jury a choice.
Now, one of the justices, who was not ever a prosecutor, Samuel Alito, said it's his understanding that in some states, trial judges can tell a jury that its verdicts are irreconcilable and instruct them to go back and deliberate.
Have you ever seen that I've never seen that, and I don't believe that that's an accurate statement. I think, as I understand the Missouri procedure, before the verdict is returned, the jury would send in a note would indicate the inconsistency, and in that case the law allows the judge before the verdict is returned. Now verdicts is return with it, they pick not guilty and signed by the four person
and delivers in court. Before that happens, the court can, of course always send the jurors back with an instruction that they should continue to deliberate. But once that jury verdict is signed and delivered in court, there's no sending it back. At that point, I believe that Supreme Court will say it.
Is over and for good, and by the end of the arguments, I guess the writing was on the wall, and Justice Kavanaugh asked the Solicitor General what would happen if Georgia lost. Could Michel Raft's two guilty verdicts, which had been declared no by the Georgia Supreme Court, be reinstated.
I believe they could be reinstated. That would be the result of that of that judgment, So the convictions would stand and those of course could be independently appealed, but they could be resurrected. And if they couldn't be resurrected, as to those counts, there probably could be a retrial, but they cannot have a retrial on account where the jury returned a not guilty verdict, whatever their reasoning was.
So you think they could have a retrial on the other counts.
No, I think in all likely that the court would say, based upon the decision of the Supreme Court, those two convictions stand and are resurrected. There's no need for retrial. You already have a conviction.
Do you think that'll be a narrow decision, you know, just this case, or they might issue some broad statements about acquittals.
Well, the Supreme Court generally only decides the question that's presented to it, so they take the narrow approach. And here I see a short, probably unanimous opinion affirming that double jeopardy rule means exactly what it says. You get one chance, and there's established precedent for this, and the argument that an inconsistent verdict between two different counts in some way in validates the acquittal. The court will say there's no law for that, and the constitution doesn't permit it.
As Gorst said, an acquittal is an acquittal is an acquittal, and just as Kagan pointed out, that either the jury made a big mistake or they decided to compromise and show leniency.
This happens all the time. Jurors compromise. They can't agree on the result for the most serious count. They know which one is the most serious account, and there wasn't an agreement on whether or not he was clearly insane, but they could agree that he should be punished, so they agree to convict on the lesser included offense. It happens, and this is, by the way, why prosecutors sometimes will
not give the jury the choice. They give the jury only the most serious count, and therefore the jury doesn't have the ability to compromise. You give them the choice between two, you're implicitly inviting compromise. So basically, the Georgia prosecutors set this up.
But if you don't give them the choice, you might not get a guilty Verdi.
That's right, No, that's right, shooting class. If you're running the risk when you don't give them any other choice, you don't give them the less or included, you run the risk that the defendant will walk, particularly in a case like this, because this is a strong case that you correctly put it out. He's clearly insane. He believed
his mother was trying to poison him. I'm assuming that he's not, although we've read in the paper today about the wife of the intelligence service chief in the Ukraine who has been apparently poisoned by the Russians. So poisonings do occur.
It's always a pleasure to have you on, George, Thanks so much. That's former federal prosecutor George Newhouse of Richard's Carrington. 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 into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg