Texas Woman Falsely Arrested for Murder Over Abortion

In anticipation of a rollback of abortion rights by the Supreme Court by this summer, and emboldened by the Justice's decision to allow Texas abortion restrictions to remain in place, Planned parenthoods Emily Well says, the courts are no longer a helpful option. In the past, we've been able to rely on the Court as a backstop to block some of the most egregious laws they've proposed. But we know

that's not true anymore. Joining me is Mary Ziegler, an expert in the law of reproductive rights and a professor at the Florida State University College of Law. Mary, before we turned to the Oklahoma law, let's discuss this startling case in Texas where a twenty six year old woman was arrested on murder charges for allegedly quote, causing the

death of an individual by a self induced abortion. The Star County district attorney got a grand jury to sign off on a murder indictment on March thirty, but this week the district attorney admitted the woman had not committed a crime and dropped the charges. Do you have any understanding of why he charged her in the first place. It's hard to say. I mean, there's no legal explanation, obviously, because it's worth emphasizing that it's not just the case

that there was no statute that authorized this prosecution. Texas homicide law actually explode that Lee spells out that you cannot punish women for having abortions. So this was a case where this was expressly prohibited by law, not just that there was still a way this was authorized. It

was expressly prohibited. I think the best way you can understand it is as part of a kind of general fragmentation of authority in the anti abortion movement and a kind of shift away from healing limited by what the law is now, because I mean, historically the anti abortion movement would have had to work within the confines of Roe v. Wade and would wait until the Supreme Court

said that it was changing the rules before adjusting. And now, of course, we live in a world where legislators routinely passed laws they know are unconstitutional. Now because they no longer care about what the laws now, they care about

what they expect the Supreme Court will do soon. And the only way I can understand what happened in Texas is that's it's sort of part of the same phenomenon right where prosecutors are saying, you know, we're going to act as if the law is the way we wanted to be, or act as if we can predict what the law will be soon, rather than actually paying attention to the rule of law that currently stands. And obviously that can lead us to some pretty disturbing places. The

district attorney admitted she hadn't committed a crime. Only after the case got national attention. She spent three days in jail. Her name and mug shot have been published across media nationwide. Is this a case for a malicious prosecution lawsuit? I think there's definitely an argument for that. Yeah, because It's really hard to see what basis there was for this. So there's no good faith argument that you can prosecute a woman in Texas for inducing her own divortion at all,

much less for murder. And I'm not a Texas expert particularly, but I mean, all you need to do is read texas As homicide Statute to know the answer to this. So it would not be a bad idea to establish that this was a malicious prosecution so that people don't follow the same path. Also very odd is that it was the hospital staff that turned her into police. Is

there any kind of duty to report in Texas? Perhaps with the new law, how could you have a duty to report someone for doing something legal If what she's doing isn't a crime. Any law that does exist about mandatory reporting of a crime wouldn't apply anyway. So the hospital staff, just like the prosecutor and the sheriff, were you know, acting on their own sense of what the law should be and not acting based on the law as it's written. There are concerns that this could stop

women from going to the hospital in emergency situations. Yeah, absolutely, And I mean I think that that's probably the lasting legacy of this that people will be afraid of seeking treatment when they need it, even if ultimately charges are

dismissed as they were in this case. People don't want to have to spend some time in prison and have to get together the money for bail and all of that after having had an abortion, or it's worth seeing a miscarriage, because it's not going to be easy for people in hospitals to distinguish whether someone has taken an abortion pill or had a miscarriage. Is there anything left to challenge, any avenue left to challenge the Texas Abortion

Law SP eight? Not really? I mean, so the Texas Supreme Court just shut the door on the last remaining possibility, which had been a suit against state licensing officials. The only exception is people who are sued under sp E

can raise constitutional arguments each time they're sued. But that's not really a satisfying alternative, because, of course then there's no moment in which those people would really be free to go about their business, right they would have to keep defending against lawsuit after lawsuit, raising the same constitutional argument over and over again. Is the new Oklahoma law even tougher than the Texas law which we once said

was the most restrictive in the country. It is, though I mean it's different obviously, because the bounty hunting provisions are about money. They use the prospect of huge legal penalties financial penalties to discourage people from providing abortions. Oklahoma's law just simply criminalizes the provision of abortion, and so in some ways, I think you could say it's a near total ban. It bans more abortions earlier in pregnancy

than the Texas bill. It has only an exception for abortions performed to save the life of the pregnant person. It makes performing an abortion of felony, and you can be punished by up to ten years in prison. And so I think sp A, as out there as it may seem, is just the beginning. We're much more likely to see bills like the Oklahoma law going forwards if the Supreme Court does actually reverse review AID. These laws don't provide exceptions for rape or incest. Even no, they

don't provide exceptions for rape and incest in almost all circumstances. Historically, people in the anti abortion movement has never supported an exception for rape and incest. It's always been sort of like a necessity. I would say political necessity in the sense that they thought it would be politically stupid to say that they didn't want to have an exception for rape and incest. But in practical terms, they understood that

we needed to say as much. But rave and insist exceptions contradict the idea of fetal personhood, which is of course the core tenant of the anti a worship movement, because if if you have a rights holding person, you're not allowed to kill that person because they were conceived, you know, and rape were incest, which is why they

can justify this life of the pregnant person example. So I think what we're seeing now is that states are feeling either that in their own states things are so polarized that voters will accept the elimination of raper incest exceptions or anyway that there won't be any political consequences because voters wouldn't select a Democrat even if they don't

like their state's subborshion policy. And you're seeing that states are so confident that the Supreme Court is going to do whatever they want that they don't have to kind of silence unpopular positions to avoid offending the justices because They think essentially that they've got this in the bag and Rob, We're just going to go no matter what they do. It seems surprising the states are not even waiting to hear what the Supreme Court is going to say by June or July at the latest about yep, yeah,

I mean, this is what happens. I think when you have a court that's viewed as partisan, it does harm to the rule of law because people in legislatures don't treat the Court as judges. They treat them as partisans, and they base their own decisions as legislators on predictions about what they think of partisan court would do rather than on the precedence the court has actually laid out.

And so the more people view the court as partisans, the more this kind of you know, damage will spread, and the more it may affect many people's perceptions of the court and its legitimacy. What happens if, as expected, the Supreme Court weekends or even overturns Row, Well, we see more of these laws or are they already on

the books? There are some on the books. So there are a number of states that have pre row bands close to ten that simply have sort of sat there not being in effect, but that might be kind of revived like zombies should Roll be overturned. A number of other states have passed so called trigger laws more recently that would essentially go into effect were oviewed to be overturned, and so close to half the states would likely have something like a band coming into effect quite quickly after

Rows overturned. Of course, there'll be lots of legal skirmishing about that. There'll be state constitutional challenges to some of these bills. They'll be debates about what exactly is needed to trigger the trigger laws, but that is what we are expecting going forward. Is it better if the Supreme Court just overturns ROW instead of cutting it back bit

by bit and pretending that it's still viable. I think yes and no. I mean I think historically abortion rights supporters would have wanted a clearer overruling of ROW, because that would at least give people the opportunity to organize politically who support abortion rights to counter that. I think the concern is that, you know, the world we live in is so polarized now that the reversal of ROW might not results in the kind of backlash we would

have anticipated. Ten or fifteen years ago, because the question, I think is not just whether the court's legitimacy you would be damaged by the reversal, but whether that damage would translate into anything politically that the Court would care about.

And I think that's much harder to predict. So don't I don't know if you're a supporter of a worship rates whether you'd be happier with a decision reversing Row outright or something that's more muddied, simply because I think predicting what kind of backlash will see is so challenging. Is the next step for anti abortion forces trying to

prohibit the use, sale, or prescription of contraceptives potentially? I mean one of the ways that that might happen is that there's always been a disagreement within the anti abortion movement, and really I think the country large about the line

between aborshition and contraception. Many may remember during fights about the contraceptive mandate of Obamacare that conservatives were complaining about having to subsidize what they've viewed as a porson inducing drugs, and those included things like emergency contraceptives and i U d s and so in a world where states can ban abortion, there's going to be a real fight about what abortion actually is and whether it includes some things

many people view as contraceptives, and that, of course, could lead to a more direct challenge to the idea that there is a right to use contraception in the first place. In the future, could you envision the Supreme Court prohibiting even democratic led states from allowing abortions? Yes, it's possible. I mean so. Anti abortion lawyers are already asking the Court to recognize the personhood of the fetus, which would mean abortion would violate the Due process and Equal Protection clause.

That would be unconstitutional everywhere. I don't expect the Court necessarily to announce it or ruling like that this year, but I think it's quite likely that we'll see an effort to get the Court to do so in the near future. And whether that taste off, I think is something will have to wait several years to find out, but that strategy will definitely be put before the court. Maryland is joining fortune other states in allowing trained medical

professionals other than physicians to perform abortions. That was over the veto of the governor. Are we seeing some states trying to shore up the right to an abortion. Yeah, we're seeing both states that are kind of codifying protections for abortion, as well as states that are trying to take more concrete steps to expand access, so for example, allowing people who are not licensed physicians, like you know,

physician extenders or nurse practitioners to perform abortions. Some states are considering becoming so called sanctuaries and helping to fund travel and services for people traveling from states where abortion is illegal. So I think that's something that we would expect to see. Thanks so much, Mary. That's Mary Ziegler, a professor at the Florida State University College of Law.

For the first time, Chief Justice John Roberts joined the court's liberal wing in blasting the conservative majority's handling of the stream of emergency request called the Shadow Docket. The Court temporarily reinstated a Clean Water Act rule issued by the Trump administration that scale back federal protections for streams, wet lands, and other bodies of water. Joining these environmental law professor Pat Parento of the Vermont Law School, what

was your reaction to this order? Pat? What's really striking is why does environmental law seem to be in the center of their bulls eye. This is the third time now within what the last eight months there and certainly was in the last year, two questionable grants of cert in the West Virginia case involving greenhouse gas emissions from power plants, and then the sack A case involving the Clean Water Act, and now this crazy unjustified stay. I've

got another Clean Water Act rules. So three times the court has issued very very questionable decisions or orders really not to say orders, and they seem to be wanting to change administrative law using environmental law. That seems to be part of what the agenda is, if there is one. This is about the administrative state, yes, and the environmental rules that they're all up because of course we had

the Trump rules that had to be replaced. So those are targets of opportunity for a court intent on rolling back agency power. Tell us what the rule is here, what happened? So this is a rule that deals with

what are called water quality certifications. It's Section four oh one of the Clean Water Act, and in it, Congress basically wanted to preserve the authority of states to protect their water quality when federal agencies issue licenses like FIR, the Federal Energy Regulatory Commission for hydroelectric dams and gas pipelines and infrastructure like that, and also other forms of federal permits, specifically Core of Engineer Section four oh four permits,

which are for everything under the sun, not just pipelines and transmission lines and highways, but every kind of development that it involves discharge of dread or film material into wetlands and other streams. So incredibly broad scope of authority and necessary because otherwise the states are preempted by federal law and don't have control over these projects that are

licensed by the federal government. So for fifty years we've we've had a regime in place where the states were exercising this authority, and it has been twice upheld by the U. S. Supreme Court, once in an opinion by Justice Santa Day O'Connor and what's called the PUD Number one, a case in which she wrote that this is a critical authority that states have to protect not just sort of water quality from chemical pollution, but also the equot

integrity if you will, up streams, including fisheries, habitat. The case involves salmon habitat in Washington State. Right, And then in a later case, just the suitor wrote for an unanimous Supreme Court that this authority was broad enough that it applied even where there wasn't a direct discharge from a point source, which is the typical way that the Clean Water Act regulates. It was even broader than that.

So that's what's that issue here is state's rights. States power to protect their water quality from projects that are licensed by the federal government. The court issued this order and it's supposed to be on a showing of irreparable harm. What's happening now? What kind of harm are these you know, are these states talking about? Well, they can't point to any specific instance where the reinstatement of the pre Trump rule.

That's what's that issue here again is Trump came along like he did with so many any other rules, and completely changed the interpretation of the Clean Water Act to say a number of things, including that states authority was both limited in time that they had to act faster than they traditionally have been acting, and also limited in scope that they couldn't do as much as states wanted to to not only protect water resources but also control

fossil fuel infrastructure. That's the real crux of the controversy here. The people that are opposed to what the Biden administration is doing are people including Red states and Red state attorneys general, who are in favor of more fossil fuel development, including gas pipelines, and they don't like the fact that Biden is now going to return to a rule that would allow states to use a broad array of reasons to either object to these projects or at least condition

them to mitigate them. So the point here is the Biden administration has not yet adopted a new rule. They've gone back to the pre Trump rule, and there is no evidence that any project has been stopped as a result of what the Biden administration has done. That's why Kagan wrote her dissent. She said, there's no harm here to justify this extraordinary use of an emergency power to stay something that's poses an immediate, irreparable threat. There isn't any nor is there any reason to not wait for

the Ninth Circuit to issue its decision. This issue is on appeal before the Ninth Circuit. There's an oral argument schedule for next month, so you know, the Supreme Court could simply wait, as it usually does, for the Ninth Circuit to rule. Who knows the Ninth Circuit might overturn the lower court's decision, which is the one the Supreme Court has stayed. Right, So the Supreme Court isn't even willing to wait for the Ninth Circuit to take an action,

and there's no harm in the meantime from waiting. But that's where we are with the Supreme Court. The Supreme Court issuing this day. It's not really going to stay anything that's happening. It's not going to be you know, adverse to environmental interests. Well, it reinstates the Trump rules. That's the effect of it. Because what happened was the lower court Judge Alsa in the Northern District of California is the district court judge who issued the order of

vacating the Trump Rules. So the effect of what the Supreme Court has done is to stay Judge Alsup's order, which has the effect of reinstating the Trump Rule. So Judge Alsap in his analysis said, if you leave the Trump Rule in effect, based on the evidence before me that's in the administrative record, I conclude there will be environmental harm from leaving this rule in place for the time it's going to take to replace it with the new rule. Secondly, he said, I conclude there is no

significant disruption. That's one of the criteria judges have to evaluate in deciding whether to vacate a rule. Will the vague cation of the rule caused significant disruption? He concluded based on the record, No, there won't be significant disruption, but there will be significant environmental harm if you leave

this rule on the books. And finally, he said, there are very serious questions about the legality of the Trump rule, such that it's very unlikely that when the new rule comes out it will look anything like the Trump rule. It's gonna be very different. It may not be what existed before, but it's going to be very different from the Trump rule. So that's the kind of very careful analysis that the lower courts have to go through before they decide whether a rule should be vacated pending a

new rule. And that's what he did, and the Ninth Circuit is, of course, is reviewing all of that. Maybe they will agree with him, maybe they won't, maybe they'll send it back to him. We don't know. Neither does the Supreme Court. But in the meantime, the Court has issued to stay. So now the states lack the authority they've traditionally had, as they say, for decades, they now lack the authority to protect their water resources from federally

authorized projects. Let's talk about the shadow docket, because Justice Atlanta Kagan, who has been a critic of the shadow docket, said it renders the Court's emergency docket, not for emergencies at all, just another place for merits determinations, except without full briefing and argument. Do you agree with her that the Court is using the shadow docket too much? Oh? Yes, I mean this is not responsible judicial sort of impartial,

non activist, objective and restrained judicial conduct at all. And by the way, you know, Chief Justice Roberts sided with Keagan on this. So once again the effect of Trump's appointees to the Court becomes huge here because if it weren't for for that, Roberts might well be the swing

vote in these kinds of situations. But now his vote is irrelevant because there are five solid conservative votes to do what they want, and apparently what they want is to continually look for and then of course they're clerks, are the ones that are looking for them. But look through these petitions to the Court and they seem to be singling out environmental petitions coming from red states. The

opposition here is is clearly partisant. There's no blue democratic state at all that's opposed to what the Biden administration is doing. In fact, they're pleading with the Biden administration to move forward more quickly with the rulemaking and get it back to what it was before. Right. So this is straight partisan politics manifested through the Court using this shadow docket with an agenda to identify rules that the Conservatives for whatever reason, don't like, are skeptical of, and

get them up to the Supreme Court. This stay ordered, by the way, isn't just holding off until the Ninth Circuit decides. The order also says if there's a petition for Sir sharr I, which of course there there would be probably either way, but certainly there would be if the Ninth Circuit upholds Judge Outsels decisions vacating the Trump rule the Supreme Court, and this order has said if there's a petition for certain if we grant it, then this day is going to stay in place until we've

decided the merits of the case. That's what Kagan is getting at. She's really saying what the Court is doing is saying, we're going to put a hold on everything until we get a chance to decide whether this whatever the Biden administration is going to do is lawful or not. That puts everything in limbo for a very long period of time, because we know how long it takes for the Supreme Court to not only get around a hearing

argument after briefing, but actually issuing decisions. We're talking about a year or more before we would get any final resolute In the meantime, the States are left in this limbo mode where they're stuck with a Trump rule that has constrained their authority and they can't seem to move forward now. Also, just back to to Justice Robert this is the ninth time he's joined with the liberals on

the losing side of five to four decisions. Since Barrett joined the court, seven have been in shadow docket rulings. But this is the first time, though, that he actually joined with a criticism of the shadow docket by Justice Kagan in this instance. So is that significant? Yes, I

think he's he's worried about the institutional reputation. He's made that point before, not only in statements in some of his opinions, but in his public pronouncements, which are limited, of course, But I think the Chief Justice is very worried about the reputation of the Supreme Court as an institution. It's beginning to look like an extension of the Republican Party. It's beginning to look is if the only voices it's listening to are those that are opposed to federal regulation

and not those that are in support. Even when it comes to a split in the states, as I said, there are more states in favor put first of all putting a stay or a hold on the Trump rule and then replacing it. Then then there are states that are in favor of it. So again, it really does, I think concern the Chief Justice that not just the optics of what the Supreme Court is doing, but the

reality of what the Court is doing. And particularly now the third time, within big environmental rules, it seems to be sending the message that the Court is got a ten ear when it comes to what are the real purposes and reasons for these rules? Why are these rules on the books, what kinds of problems are they intended to address, and they're only listening to those who oppose

regulation without actually proposing alternatives to the relation. None of these three cases that we're talking about, and none of those cases are we seeing the opponents of the environmental rules proposing alternatives that actually address the problems the rules are designed to address. That's where we are a Supreme Court that highly partisan and only listening to one side. Thanks Pat. That's Professor Pat Parento of the Vermont Law School.

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 to tune into The Bloomberg Law Show every week night at ten BM Wall Street Time. I'm June Grosso and you're listening to Bloomberg