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Planned Parenthood Win & Ghislaine Maxwell Appeal · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
• 0:08
  Speaker 1: Elane Maxwell is serving a twenty year sentence for her
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  Speaker 1: role in a scheme to sexually exploit and abuse minor
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  Speaker 1: girls with Jeffrey Epstein. This week, Maxwell asked the Supreme
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  Speaker 1: Court to take up her appeal of her federal sex
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  Speaker 1: trafficking conviction. Her appeal is based on a non prosecution
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  Speaker 1: agreement that Epstein struck with federal prosecutors in Miami in
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  Speaker 1: two thousand and seven, and Maxwell argues it should have
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  Speaker 1: barred her prosecution in New York fourteen years later. Joining
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  Speaker 1: me is former federal prosecutor Robert Mintz, a partner Macarter
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  Speaker 1: in English. Bob start by telling us about this broad
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  Speaker 1: non prosecution agreement that Epstein reached with federal prosecutors in
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  Speaker 1: two thousand and seven.
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  Speaker 2: The document that's at the heart of the Galaine Maxwell
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  Speaker 2: appeal to the Supreme Court is a non prosecution agreement
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  Speaker 2: that was signed in two thousand and seven with the
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  Speaker 2: US Attorney in Southern Florida involving Jeffrey Epstein, and in
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  Speaker 2: that case he was facing both federal and potential state charges.
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  Speaker 2: The deal that he ultimately Struck allowed him to plead
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  Speaker 2: guilty to two Florida state charges, and in exchange for that,
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  Speaker 2: the Department of Justice agreed not to bring any federal
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  Speaker 2: charges against him. But the critical language in the agreement
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  Speaker 2: said that the United States also agrees that it will
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  Speaker 2: not institute any criminal charges against any potential co conspirators
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  Speaker 2: of Epstein. And that is the language that Maxwell's lawyers
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  Speaker 2: have lacked onto to argue that her subsequent sex trafsking
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  Speaker 2: charges in New York were actually barred by that non
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  Speaker 2: prosecution agreement.
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  Speaker 1: How unusual is it to have a non prosecution agreement
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  Speaker 1: made by one US attorney bind other US attorneys in
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  Speaker 1: different districts.
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  Speaker 2: That would be highly unusual. As a federal prosecutor, I
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  Speaker 2: had been involved in hundreds of plea agreements, and the
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  Speaker 2: standard language in all these plea agreements says that that
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  Speaker 2: agreement is limited to the district that is prosecuting you
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  Speaker 2: or potentially prosecuting you in that case, and that it
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  Speaker 2: expressly does not bind any other district in the country.
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  Speaker 2: So to have language as broad as that which says
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  Speaker 2: that the US attorney in the southern districts of Florida
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  Speaker 2: can bind every other judicial district in the United States
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  Speaker 2: is something that would be highly unusual. But nonetheless, the
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  Speaker 2: language that was in that agreement is on its face,
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  Speaker 2: very broad, and that is at the heart of the
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  Speaker 2: Maxwell appeal before the Supreme Court.
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  Speaker 1: What about the fact that in Jeffrey Epstein's n on
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  Speaker 1: prosecution agreement US attorney is also promising not to prosecute
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  Speaker 1: anyone else? Does that happen?
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  Speaker 2: Typically, what a plea ariement will say is that in
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  Speaker 2: exchange for a plead or particular crime, the US Attorney's
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  Speaker 2: office will not prosecute that individual for any other crimes
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  Speaker 2: related to that criminal activity. It doesn't typically say anything
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  Speaker 2: about not bringing charges against any other individual. So in
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  Speaker 2: this case, that language is incredibly broad because it talks
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  Speaker 2: about not bringing any other federal charges against any unspecified
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  Speaker 2: co conspirators. It doesn't even list who those individuals may be,
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  Speaker 2: So it makes that language incredibly broad. And that's why
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  Speaker 2: when that case was first appeal to the Second Circuit
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  Speaker 2: Court of appealed, the Second Circuit did not agree that
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  Speaker 2: that plea agreement barred the prosecution in New York that
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  Speaker 2: was ultimately against Gallaine Maxwell.
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  Speaker 1: That Epstein non prosecution agreement has been widely criticized. In fact,
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  Speaker 1: the Justice Department said in twenty twenty that then US
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  Speaker 1: Attorney for the South District of Florida, alex Acosta, used
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  Speaker 1: poor judgment in handling the case, and the Second Circuit
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  Speaker 1: reviewed the NPA before upholding her conviction.
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  Speaker 2: The central question raised by Maxwell's appeals to the Supreme
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  Speaker 2: Court is whether a promise on behalf of the United
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  Speaker 2: States that is made by one US attorney in one
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  Speaker 2: district combined federal prosecutors in other districts. But it really
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  Speaker 2: is more complex than even that, because here it involved
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  Speaker 2: not a situation where the individual who pled guilty in
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  Speaker 2: Florida is being prosecuted by another US attorney's office and
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  Speaker 2: another part of the country. We're talking about another person
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  Speaker 2: who was not even a party to that plea agreement
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  Speaker 2: in Florida, arguing that the plea agreement with Jeffrey Epstein
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  Speaker 2: somehow barres a prosecution of Glaine Maxwell in New York
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  Speaker 2: many years later, So it would be an incredibly broad
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  Speaker 2: reading of that language. And in fact, the Second Circuit
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  Speaker 2: Court of Appeals looked at the plea agreement and said
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  Speaker 2: that on its face, while it's possible that the United
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  Speaker 2: States could conceivably refer to the entire federal government. When
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  Speaker 2: they look at the context and the entirety of that
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  Speaker 2: non prosecution agreement, it makes clear that when they refer
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  Speaker 2: to the government or to the United States, they're only
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  Speaker 2: referring to the US Attorney's office in the Southern District
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  Speaker 2: of Florida. And therefore that language, as Glaine Maxwell' attorneys
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  Speaker 2: are arguing, is really being taken out of context because
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  Speaker 2: it really involved only the Southern District of Florida. But
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  Speaker 2: once again, there's really two questions that are being raised here.
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  Speaker 2: One is whether it could apply to other US Attorney's
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  Speaker 2: offices as against the individual who's pleading guilty in Florida.
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  Speaker 2: But also here talking about another individual, not even a
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  Speaker 2: party to the Florida agreement, who's trying to use it
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  Speaker 2: as a bart prostitution in another district.
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  Speaker 1: The Justice Department file paper is asking the Supreme Court
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  Speaker 1: not to take Maxwell's case.
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  Speaker 2: Yeah, the Justice Department is opposing Maxwell's petition and essentially
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  Speaker 2: arguing that it's clear in the context of that non
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  Speaker 2: prosecution agreement that it was only referring to the Southern
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  Speaker 2: District of Florida and was not attempting to bind other
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  Speaker 2: judicial districts around the country.
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  Speaker 1: Gleam Maxwell's attorneys are saying that there's a split in
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  Speaker 1: the circuits, and that is something that the Supreme Court
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  Speaker 1: often considers when taking a case. But they received thousands
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  Speaker 1: of petitions every year, and they grant review in fewer
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  Speaker 1: than one hundred, so the odds of the Supreme Court
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  Speaker 1: granting review here are pretty slim.
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  Speaker 2: So that's exactly right. It's very rare for the Supreme
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  Speaker 2: Court to take these appeals. They do receive thousands of petitions,
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  Speaker 2: it takes four justices to grant review, and it seems,
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  Speaker 2: in my opinion, unlikely they're going to take this because
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  Speaker 2: while there may be a split in the circuits around
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  Speaker 2: the country, this is not an issue that comes up
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  Speaker 2: on a regular basis, and I think in this case,
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  Speaker 2: the Supreme Court is likely just to leave the Second
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  Speaker 2: Circuit decision in place and not take it up.
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  Speaker 1: This case is unusual in a lot of different ways,
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  Speaker 1: one being that her attorney not only appeal to the
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  Speaker 1: Supreme Court but also appeal to President Trump, saying, quote,
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  Speaker 1: President Trump built his legacy in part on the power
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  Speaker 1: of a deal, and surely he would agree that when
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  Speaker 1: the United States gives its word, it must stand by it.
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  Speaker 2: Yeah, so what we're seeing here really is the court
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  Speaker 2: filing in the form of this petition to the United
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  Speaker 2: States Supreme Court that, on his face, is fairly typical.
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  Speaker 2: They're raising a le issue. They're arguing that there is
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  Speaker 2: a split in the federal circuits, which is something that
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  Speaker 2: the Supreme Court considers when it decides whether or not
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  Speaker 2: to take a case, and they're trying to argue that
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  Speaker 2: the question of whether one US attorney's office can in
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  Speaker 2: fact bind the entire United States is something that's important
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  Speaker 2: enough that the Supreme Court ought to take it up.
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  Speaker 2: On the other hand, you cannot ignore the fact that
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  Speaker 2: there is a political backdrop to this appeal, in that
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  Speaker 2: there's been tremendous backlash against the Department of Justice and
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  Speaker 2: some of President Trump's supporters regarding the decision, not really
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  Speaker 2: additional information related to the Jeffrey Epstein prosecution, and all
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  Speaker 2: of that is getting swept up in this Supreme Court appeal,
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  Speaker 2: which is why we're seeing her lawyer appeal not only
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  Speaker 2: to the Supreme Court, but expressly appealing to President Trump.
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  Speaker 2: In the reply brief that was just recently filed with
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  Speaker 2: the Supreme Court. Her lawyer specifically referenced not only the
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  Speaker 2: United States Supreme Court where the brief was filed, but
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  Speaker 2: also mans President Trump and said, we are appealing not
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  Speaker 2: only to the Supreme Court, but to the President himself
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  Speaker 2: to recognize how profoundly unjust it is to scapegoat Delanne
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  Speaker 2: Maxwell for Epstein's crime, especially when the government promised he
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  Speaker 2: would not be prosecuted. So this is a quite direct
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  Speaker 2: appeal not only to the court but also to President
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  Speaker 2: Trump in the hope that maybe he will pardon her
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  Speaker 2: or reduce her sentence, because they know that it's unlike
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  Speaker 2: the Supreme Court is going to take this appeal.
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  Speaker 1: The court filing, of course, doesn't refer to the let's
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  Speaker 1: say unusual out of court developments, like her meeting last
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  Speaker 1: week with the Deputy Attorney General Todd Blanche for two days.
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  Speaker 1: She was also subpoena to testify by the House Oversight Committee,
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  Speaker 1: and her attorney put conditions on her testimony. In addition
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  Speaker 1: to immunity, he wanted to be provided with the questions
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  Speaker 1: the lawmakers inten to ask her, and he asked that
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  Speaker 1: the deposition be rescheduled until after her appeal is resolved
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  Speaker 1: before the Supreme Court. The court won't even be in
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  Speaker 1: session until October. Are his requests within the scope of
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  Speaker 1: what a defense attorney would normally request if his client
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  Speaker 1: who was waiting on an appeal was asked to testify
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  Speaker 1: before Congress.
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  Speaker 2: Yeah, these are not really unusual requests given her circumstance.
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  Speaker 2: But there also requests that the House Oversight Committee has
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  Speaker 2: already determined they would not grant. What the defense lawyer
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  Speaker 2: here is really trying to do is to protect his
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  Speaker 2: client who is actively seeking post conviction relief, both in
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  Speaker 2: the pending petition before the United States Supreme Court and
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  Speaker 2: in a habeas petition they intend to file, and he
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  Speaker 2: is arguing that her testimony before the committee could compromise
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  Speaker 2: her constitutional rights to prejudice her legal claims and could
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  Speaker 2: potentially take a future jury if the Supreme Court were
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  Speaker 2: to take the case and overturn the lower course decision
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  Speaker 2: and remand the case for another trial. So those requests
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  Speaker 2: are really not unusual, but it was also highly unlikely
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  Speaker 2: that they were going to be granted by the committee.
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  Speaker 2: The most significant in condition that Maxwell's attorneys put on
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  Speaker 2: her agreement to testify before Congress, was this grant a
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  Speaker 2: formal immunity that witness immunity comes in several forms, or
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  Speaker 2: something called transactional immunity, which is a blanket or a
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  Speaker 2: total immunity which completely protects a witness from future prosecution
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  Speaker 2: for crimes related to their testimony. Then there's something called
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  Speaker 2: use or derivative use community, which means that you can't
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  Speaker 2: use the witness's testimony or any evidence derived from that
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  Speaker 2: testimony against that witness, but does allow prosecutors to prosecute
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  Speaker 2: for evidence that is independently derived separate from the witness's testimony.
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  Speaker 2: But what's happening here was that her lawyers were asking
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  Speaker 2: Congress to grant this broad immunity in exchange for her testimony,
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  Speaker 2: and that's something that Congress was likely unwilling to do,
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  Speaker 2: and in fact, the Committee has already rejected that request, Bob.
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  Speaker 1: Another thing that's been going on is that the Justice
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  Speaker 1: Department has asked judges in Florida and Manhattan to unseal
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  Speaker 1: grand jury transcripts in both the Jeffrey Epstein and Galaine
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  Speaker 1: Maxwell cases. And we've talked before about how you're not
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  Speaker 1: going to learn much in those grand jury transcripts, And
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  Speaker 1: now we found out that the grand jury transcripts that
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  Speaker 1: the Justice Department is seeking only include testimony from two witnesses,
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  Speaker 1: both of them law enforcement officers. Law enforcement officers often testify,
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  Speaker 1: but what kind of information are you going to get
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  Speaker 1: from them?
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  Speaker 2: So there are essentially two ways of prosecutors use grand curies.
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  Speaker 2: One is as an investigative tool. The other is as
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  Speaker 2: a means for obtaining and a diet. Most of the time,
• 13:02
  Speaker 2: prosecutors use the grand jury for that second purpose, simply
• 13:06
  Speaker 2: to obtain an indictment, because under the constitution, prosecutors do
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  Speaker 2: not have the ability to bring charges directly against individuals.
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  Speaker 2: Only a federal grand jury can do that in federal
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  Speaker 2: criminal cases. So what prosecutors have to do when they're
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  Speaker 2: ready to present their case and ready to bring charges
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  Speaker 2: against an individual is bring a witness into the grand jury,
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  Speaker 2: generally a law enforcement officer, an FBI agent, a dasent,
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  Speaker 2: or some other representative of a federal agency, and that
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  Speaker 2: witness can effectively summarize the entire case and the evidence.
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  Speaker 2: And by doing that, they can summarize witness testimony, they
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  Speaker 2: can talk about documents they reviewed. But that is really
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  Speaker 2: a high level summary of the evidence, and it is
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  Speaker 2: just enough for prosecutors to obtain that indictment. It is
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  Speaker 2: by no means a complete recitation of all of the
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  Speaker 2: evidence the prosecutors have, and it is certainly not a
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  Speaker 2: complete recitation of all of the witness interviews that were
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  Speaker 2: done in connection with the investigation. So it really is
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  Speaker 2: a very targeted presentation in front of the grand jury.
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  Speaker 2: Sometimes witnesses are used in order to actually conduct an investigation,
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  Speaker 2: but it's unusual, and it's usually done in order to
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  Speaker 2: lock in witness testimony. If a prosecutor believes that there
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  Speaker 2: is an uncooperative witness that they don't want to be
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  Speaker 2: surprised what they're going to say at a trial, if
• 14:27
  Speaker 2: they might testify the trial, they bring them into the
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  Speaker 2: grand jury. They let them testify, even if prosecutors believe
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  Speaker 2: that that testimony may be false, but it locks them in.
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  Speaker 2: So whatever their story is in front of the grand jury,
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  Speaker 2: they can't change it down the road at a trial.
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  Speaker 1: So a Florida judge has already rejected request for the
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  Speaker 1: grand jury transcripts of Epstein's proceedings down there, How likely
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  Speaker 1: is it that the New York judges will do the same.
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  Speaker 2: Well. For a judge to unseal grand jury testimony is
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  Speaker 2: really an usual Now it is less largely to the
• 15:02
  Speaker 2: discretion of the judge, but a judge would have to
• 15:05
  Speaker 2: find extraordinary circumstances, and the fact that there is a
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  Speaker 2: strong public desire to get more information about this case
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  Speaker 2: really is probably not enough for a judge to agree
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  Speaker 2: to release that grand jury testimony. And there's good reason
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  Speaker 2: for that, because lots of information and lots of testimony
• 15:23
  Speaker 2: and lots of evidence that's presented in front of a
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  Speaker 2: grand jury may mention other individuals who ultimately are not charged.
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  Speaker 2: It may mention victims and other sensitive information. And the
• 15:35
  Speaker 2: whole reason that testimony in front of a grand jury
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  Speaker 2: is protected by a federal rule known as dix E
• 15:43
  Speaker 2: is because there is a decision that's made. An information
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  Speaker 2: that does not ultimately lead to an indictment so an
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  Speaker 2: individual has an opportunity to respond to those charges is
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  Speaker 2: not information that ought to be revealed to the public,
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  Speaker 2: because if it is revealed, those people whose names may
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  Speaker 2: be mentioned, who have come up in the course of
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  Speaker 2: an investigation really have no opportunity to clear their name
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  Speaker 2: since they'll never be a trial they'll never be a
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  Speaker 2: core proceeding, and it really is simply a guilt by
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  Speaker 2: association in some cases, which is what the grand jury
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  Speaker 2: is designed expressly to prevent.
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  Speaker 1: A lot of issues around these Epstein files. Thanks so much, Bob.
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  Speaker 1: That's former federal prosecutor Robert Mints of Macarter and English.
• 16:30
  Speaker 1: In a set back to abortion opponents, a federal judge
• 16:33
  Speaker 1: this week ruled that Planned Parenthood clinics nationwide must continue
• 16:39
  Speaker 1: to be reimbursed for Medicaid funding. A provision in President
• 16:43
  Speaker 1: Trump's signature tax legislation was written to prohibit Planned Parenthood
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  Speaker 1: from receiving any Medicaid funds even when abortions are not
• 16:52
  Speaker 1: being provided. Massachusetts judge in Derah Talwani found that the
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  Speaker 1: provision likely violates the Constitution in three different ways. My
• 17:02
  Speaker 1: guest is reproductive rights expert Mary Ziegler, a professor at
• 17:05
  Speaker 1: UC Davis Law School. Mary, how would the medicaid cuts
• 17:09
  Speaker 1: in Chump's tax bill affect Planned Parenthood?
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  Speaker 2: So?
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  Speaker 3: I think there are knowns and unknowns. We are pretty
• 17:16
  Speaker 3: sure that it would take away about a third of
• 17:19
  Speaker 3: Planned Parenthood's funding, and what that would translate into in
• 17:23
  Speaker 3: terms of closures is a little bit more complicated and
• 17:26
  Speaker 3: may not be evenly distributed across the universe of planed
• 17:28
  Speaker 3: paranoid affiliates. It'll depend on a variety of things, like
• 17:32
  Speaker 3: whether fundraising can cover some of those losses, whether Planned
• 17:35
  Speaker 3: Parenthood can try to run out the cloth. Because at
• 17:37
  Speaker 3: least at the moment, the Big Beautiful build that provision
• 17:40
  Speaker 3: of it is set to expire in a year, just
• 17:42
  Speaker 3: in time for the midterms. It could obviously be extended,
• 17:45
  Speaker 3: but at the moment it hasn't been, so we do
• 17:47
  Speaker 3: know it's going to have some pretty devastating effects on
• 17:50
  Speaker 3: plan Parenthood. We've already seen some affiliates close, but exactly
• 17:53
  Speaker 3: what beyond that, I think we still have to see.
• 17:56
  Speaker 1: Planned Parenthood went to court and argued that the laws
• 17:59
  Speaker 1: paw on medicaid reimbursements amount to a targeted exclusion that
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  Speaker 1: violates the Constitution. Tell us about their arguments.
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  Speaker 3: They argued first that the Big Beautiful Bill was actually
• 18:12
  Speaker 3: punishing Planned Parenthood for its expression and its speech. So
• 18:16
  Speaker 3: the argument was that the bill was penalizing affiliates not
• 18:20
  Speaker 3: for performing abortions, but for associating with Planned Parenthood, an
• 18:24
  Speaker 3: organization that advocates for reproductive rights, and the logic was
• 18:27
  Speaker 3: Planned Parenthood can't get the money back, and affiliate couldn't
• 18:29
  Speaker 3: get the money back by simply not providing abortions itself.
• 18:32
  Speaker 3: It would have to disaffiliate from Planned Parenthood. There was
• 18:35
  Speaker 3: a related argument under the equal protection cause, and then
• 18:38
  Speaker 3: the final argument that this amounted to what's called a
• 18:40
  Speaker 3: bill of attainder, which is when the legislature punishes someone
• 18:45
  Speaker 3: for past conduct without a trial. So Planned Parenthood was
• 18:48
  Speaker 3: arguing that this bill amounted to a punishment of Planned
• 18:50
  Speaker 3: Parenthood for having done abortions in the past or advocated
• 18:54
  Speaker 3: for abortions in the past. So those were the arguments
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  Speaker 3: that are really at the center.
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  Speaker 2: Of the case.
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  Speaker 1: And why did the judge fine for Planned Parenthood.
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  Speaker 3: Yeah, the judge agreed with Planned Parenthood on all three arguments,
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  Speaker 3: essentially in joining the big beautiful builds permanently on all
• 19:09
  Speaker 3: three grounds. So this was, you know, at the moment,
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  Speaker 3: as big of a win as Planned Parenthood could have
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  Speaker 3: asked for.
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  Speaker 1: Was Planned Parenthood saying if the Medicaid reimbursements were stopped,
• 19:19
  Speaker 1: they'd go out of business.
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  Speaker 3: There's varying estimates. I mean, I've heard that a significant
• 19:25
  Speaker 3: number of affiliates would close. It's not really that Planned
• 19:29
  Speaker 3: Parenthood altogether would go out of business, because, as the
• 19:32
  Speaker 3: case makes clear, Planned Parenthood is not just a health
• 19:35
  Speaker 3: care provider, it's also an advocacy grow and there's no
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  Speaker 3: reason to think that every single affiliate will go out
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  Speaker 3: of business as a result of the big, beautiful build.
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  Speaker 3: But Planned Parenthood does receive a significant portion of its
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  Speaker 3: funding from Medicaid, so we would expect to see a
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  Speaker 3: lot of clinic shutter. But how many, I think, we
• 19:50
  Speaker 3: won't know unless you're until really the bill goes into
• 19:53
  Speaker 3: affect it for long enough.
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  Speaker 1: The judges July twenty first Order preliminary Order has already
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  Speaker 1: appealed to the First Circuit. Do you think the First
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  Speaker 1: Circuit is likely to affirm this ruling?
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  Speaker 3: It's hard to say, right, I mean, the First Circuit
• 20:08
  Speaker 3: is not known to be a particularly conservative circuit. But
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  Speaker 3: some of these arguments are more of a stretch than
• 20:15
  Speaker 3: you might expect. So that unconstitutional conditions doctrine, which is
• 20:20
  Speaker 3: part of what the judge relied on, right, is essentially
• 20:22
  Speaker 3: not that Planned Parenthood has a right to Medicaid funding,
• 20:25
  Speaker 3: but rather that if Planned Parenthood is eligible for Medicaid funding.
• 20:28
  Speaker 3: You can't have that taken away because it exercised this
• 20:31
  Speaker 3: constitutional right to associate. The problem there is that unconstitutional
• 20:35
  Speaker 3: conditions doctrine is just a mess. Like most colors agree,
• 20:38
  Speaker 3: it's convoluted. It doesn't make a lot of sense, which
• 20:41
  Speaker 3: leaves a lot of room for judges to disagree about
• 20:43
  Speaker 3: how to apply it. And the fight here is really
• 20:45
  Speaker 3: about whether the bill was penalizing Planned Parenthood for providing
• 20:50
  Speaker 3: abortions or whether it was penalizing Planned Parenthood affiliates for
• 20:54
  Speaker 3: associating with an organization that advocated for abortions. And it's
• 20:58
  Speaker 3: hard to predict which way the first circuit it is
• 21:00
  Speaker 3: going to come down on that. Some of the tainder
• 21:02
  Speaker 3: cases are kind of the same, so there's not a
• 21:04
  Speaker 3: lot of law there. It's a little unpredictable.
• 21:07
  Speaker 1: Just to be clear, Medicaid funds are not used for
• 21:10
  Speaker 1: abortions at Planned Parenthood.
• 21:12
  Speaker 3: So since the nineteen seventy six High Amendment, Planned Parenthood
• 21:15
  Speaker 3: has been unable to use Medicaid dollars for abortions. This
• 21:18
  Speaker 3: is just punalizing organizations that provide abortions by depriving them
• 21:23
  Speaker 3: of Medicaid dollars. For other service.
• 21:25
  Speaker 1: So some states have already cut Planned Parenthood's Medicaid funding,
• 21:31
  Speaker 1: including Texas and Louisiana. And did the Supreme Court open
• 21:37
  Speaker 1: the gate for more states to do that?
• 21:40
  Speaker 2: Right? Exactly?
• 21:41
  Speaker 3: Yeah, So in a case last June called Medina, the
• 21:45
  Speaker 3: Supreme Court made it easier for conservative states to kick
• 21:50
  Speaker 3: Planned Parenthood out of their own Medicaid program. So, just
• 21:52
  Speaker 3: to be clear, Medicaid is a joint state federal program,
• 21:56
  Speaker 3: so states have their own Medicaid reimbursement process, as does
• 22:01
  Speaker 3: the federal government. So what states had been looking to
• 22:05
  Speaker 3: do was to prevent Planned Parenthood from getting Medicaid reimbursement
• 22:09
  Speaker 3: for non abortion services. It had been unclear until June
• 22:13
  Speaker 3: about whether that was permissible, and the Supreme Court just
• 22:16
  Speaker 3: clarified that it is. So one of the upshots of
• 22:20
  Speaker 3: that is that, really, regardless of what happens with the
• 22:22
  Speaker 3: big beautiful Bill, either in court or in Congress, right,
• 22:25
  Speaker 3: because this thing is set to expire and we don't
• 22:28
  Speaker 3: know if Republicans are going to renew it or let
• 22:31
  Speaker 3: it expire because it would hurt them in the midterms.
• 22:35
  Speaker 3: Regardless of what happens with that, we do expect to
• 22:37
  Speaker 3: see more conservative states taking aim at planned parenthood when
• 22:40
  Speaker 3: it comes to state a kate dollars.
• 22:42
  Speaker 1: So let's turn out to this wrongful death lawsuit. A
• 22:47
  Speaker 1: Texas man whose girlfriend used abortion pills to end her
• 22:51
  Speaker 1: pregnancies is suing a California doctor who allegedly mailed her
• 22:57
  Speaker 1: the medication. Tell us about this lawsuit.
• 23:00
  Speaker 3: So this is another interesting lawsuit. It's being brought by
• 23:04
  Speaker 3: Jonathan Mitchell, who is a famous anti abortion attorney who's
• 23:08
  Speaker 3: probably best known as being the architect of Sbaight, the
• 23:12
  Speaker 3: Texas Bounty Bill.
• 23:14
  Speaker 2: But it was filed in federal.
• 23:15
  Speaker 3: Court, which is interesting, and it argues that a California
• 23:19
  Speaker 3: doctor mailed pills not only to a woman, but a
• 23:23
  Speaker 3: woman and her kind of estranged ex husband who is
• 23:26
  Speaker 3: pressuring her to have an abortion allegedly, and that happens
• 23:30
  Speaker 3: and constituted a wrongful death. It's interesting for a number
• 23:35
  Speaker 3: of reasons, because why was it a wrongful death if
• 23:37
  Speaker 3: in fact it's not a crime in Texas for a
• 23:40
  Speaker 3: woman to and her own pregnancy. The answer that the
• 23:43
  Speaker 3: lawsuit offers is complicated, but partly that federal law makes
• 23:48
  Speaker 3: it a crime allegedly to male abortion pills at all. Right,
• 23:52
  Speaker 3: So this is an effort to turn the Comstock Act,
• 23:55
  Speaker 3: this nineteenth century obscenity law, into an abortion man. It's
• 23:59
  Speaker 3: a vehicle for that, and it's also I think a
• 24:02
  Speaker 3: vehicle for abortion opponents who are impatient with some of
• 24:05
  Speaker 3: the lawsuits we've already seen. So Texas, for example, has
• 24:09
  Speaker 3: parted it a New York abortion doctor for violating Texas
• 24:13
  Speaker 3: state laws. But that's been going quite slowly, right. The
• 24:16
  Speaker 3: action hasn't moved to federal court there, and I think
• 24:18
  Speaker 3: this is an effort to kind of start process in
• 24:22
  Speaker 3: federal court and maybe expedise the resolution of some of
• 24:24
  Speaker 3: these questions of otus, especially when it comes to the
• 24:27
  Speaker 3: Comstock Act. But not only to that.
• 24:29
  Speaker 1: Mary, We've talked before about the threat posed by the
• 24:32
  Speaker 1: Comstock Act on the mailing of abortion pills. It hasn't
• 24:36
  Speaker 1: been used. What in decades does it still stand? Are
• 24:41
  Speaker 1: there any problems with the Comstock Act itself?
• 24:45
  Speaker 3: Yeah, so it's complicated, right, I mean, the Comstock Act
• 24:48
  Speaker 3: has been enforced in recent decades, but only really in
• 24:51
  Speaker 3: kind of a rare handful of cases involving things like
• 24:54
  Speaker 3: child pornography, So it hasn't been enforced in cases involving
• 24:58
  Speaker 3: abortion much to speak of at all since the nineteen teens. So,
• 25:04
  Speaker 3: you know, there are a number of problems with the argument.
• 25:06
  Speaker 3: It's not clear that the Kombstock Act was intended to
• 25:10
  Speaker 3: ban the mailing of all abortion related items. That doesn't
• 25:13
  Speaker 3: seem to have been what courts thought in the nineteenth
• 25:16
  Speaker 3: or early twentieth centuries. Then there's just whether it's constitutionally
• 25:21
  Speaker 3: permissible to have a zombie law like this pick back
• 25:25
  Speaker 3: in and criminalize a bunch of conduct that everybody thought
• 25:27
  Speaker 3: was fine. Whether that raises due process or fairness concerns
• 25:31
  Speaker 3: is something the courts would have to resolve too. But again,
• 25:35
  Speaker 3: you know, it's not obvious that this case will we'll
• 25:38
  Speaker 3: get all the way to the Supreme Court anyway. Jonathan
• 25:41
  Speaker 3: Mitchell and other abortion opponents have been trying to find
• 25:43
  Speaker 3: a vehicle to get the Comstock Act of the Supreme
• 25:45
  Speaker 3: Court for several years now and yet without any success.
• 25:49
  Speaker 2: Right So, whether this proves to.
• 25:50
  Speaker 3: Be the magic blow, we'll.
• 25:52
  Speaker 1: Just have to see. And so he's tried other lawsuits,
• 25:56
  Speaker 1: these wrongful death kind of lawsuits over abortions in state court.
• 26:01
  Speaker 1: Is this a new attempt to take it to federal court?
• 26:06
  Speaker 3: Yeah, it's a new attempt to take it to federal court.
• 26:08
  Speaker 3: It's also significant who the plaintiff is in this case.
• 26:11
  Speaker 3: A previous wrongful death suit that mister Mitchell filed similarly
• 26:16
  Speaker 3: a kind of man suing his partner. The man ended
• 26:19
  Speaker 3: up having a pretty unsavory background. There were lots of
• 26:23
  Speaker 3: text messages and other data indicating that he had been controlling,
• 26:28
  Speaker 3: that he had done a lot of unflattering and worrisome
• 26:31
  Speaker 3: things that kind of painted the lawsuit in a pretty
• 26:34
  Speaker 3: damning light. So I think this is an attempt to
• 26:36
  Speaker 3: go to federal court to get the comstock question addressed
• 26:38
  Speaker 3: directly with a plaintiff who isn't as unappealing as the
• 26:43
  Speaker 3: last plaintiff. Right, there's an attempt. I don't know if
• 26:45
  Speaker 3: it will work. This is kind of an abersion coercion situation.
• 26:50
  Speaker 3: The lawsuit alleges that the woman having these abortions was
• 26:53
  Speaker 3: being pressured by her estranged husband and to some extent
• 26:57
  Speaker 3: by his family, and that she would have preferred to
• 27:00
  Speaker 3: carry these pregnancies to terms. The old lawsuit was very
• 27:05
  Speaker 3: critical of the woman who had the abortion in her friends,
• 27:08
  Speaker 3: so it was sort of, you know, it looked like
• 27:10
  Speaker 3: men telling women what to do. This lawsuit is sort
• 27:13
  Speaker 3: of presenting itself as men defending women against coercive men.
• 27:18
  Speaker 3: Whether a judge sees it that way or whether the
• 27:20
  Speaker 3: facts bear that narrative out remains to be seen.
• 27:23
  Speaker 1: It seems like the facts are a little odd. She's
• 27:26
  Speaker 1: still married to someone else. Does the boyfriend even have
• 27:30
  Speaker 1: standing to sue?
• 27:31
  Speaker 3: Right? I mean, genetically, there's an interesting question. I mean,
• 27:34
  Speaker 3: I think obviously, you know, we're in an era now
• 27:37
  Speaker 3: where biological fathers can have rights. You know, it's not
• 27:41
  Speaker 3: just the sort of old knaws of marital fathers are
• 27:44
  Speaker 3: the only people with rights in this situation. But to
• 27:46
  Speaker 3: your point, they are interesting questions about whether the plaintiff
• 27:49
  Speaker 3: is in fact a biological father. I'm not sure how
• 27:52
  Speaker 3: that could have been determined.
• 27:54
  Speaker 1: The facts here seemed to leave a lot of open questions.
• 27:58
  Speaker 1: So why bring a suit that you want to gain
• 28:01
  Speaker 1: attention with this fact pattern?
• 28:03
  Speaker 3: I think the goal is to have a story about
• 28:06
  Speaker 3: abortion coercion, But like you said, it's kind of complicated.
• 28:11
  Speaker 3: A lot of things are unclear, right, like who who
• 28:14
  Speaker 3: was the father of the fetuses or unborn children who
• 28:17
  Speaker 3: are being aborted?
• 28:18
  Speaker 2: Right?
• 28:19
  Speaker 3: And how is that being determined? To what extent was
• 28:22
  Speaker 3: their coercion or to what extent was this just a
• 28:24
  Speaker 3: woman in a complicated romantic entanglement who wasn't sure what
• 28:28
  Speaker 3: the right thing to do with It was hard to
• 28:30
  Speaker 3: figure out what was exactly going on, even though this
• 28:34
  Speaker 3: was just the plaintiff's version of events. So I imagine that
• 28:37
  Speaker 3: if the plaintiff's version of events is this hard to understand,
• 28:39
  Speaker 3: their reality is that much more complicated.
• 28:42
  Speaker 1: You mentioned Czechis and Louisiana are pursuing legal actions against
• 28:46
  Speaker 1: a New York doctor who prescribed abortion pills to patients
• 28:50
  Speaker 1: in those states. New York has a shield law, so
• 28:54
  Speaker 1: is it a question of which state's law to follow?
• 28:58
  Speaker 1: Can one state tell another story what to do.
• 29:01
  Speaker 3: Yeah, that's part of the complexity of both the Strongfold
• 29:04
  Speaker 3: death suit and the Texas and previous Louisiana cases that
• 29:08
  Speaker 3: we've spoken about before. So when one state is fighting
• 29:12
  Speaker 3: another state, things get complicated under the full faith and
• 29:15
  Speaker 3: credit clause and also choice of law. So the full
• 29:17
  Speaker 3: faith and Credit claus is generally that when the courts
• 29:20
  Speaker 3: of one state reach a final judgment, the courts of
• 29:23
  Speaker 3: the other state have to honor that judgment. That's generally
• 29:26
  Speaker 3: how things work, but it gets complicated because there's sometimes
• 29:29
  Speaker 3: exceptions to that rule, and there can be complexities when
• 29:33
  Speaker 3: they're multiple dueling judgments. You could have courts and different
• 29:37
  Speaker 3: states reaching different outcomes, and then those courts have to
• 29:40
  Speaker 3: decide which state's law even apply when they're resolving these questions.
• 29:44
  Speaker 3: So far, the Texas and Louisiana suits haven't gone very
• 29:48
  Speaker 3: far in resolving these questions. They haven't even asked federal
• 29:52
  Speaker 3: courts to get involved. So I think part of what
• 29:54
  Speaker 3: you're seeing in this case is Jonathan Mitchell trying to
• 29:57
  Speaker 3: go directly to federal courts, even though a lot of
• 30:01
  Speaker 3: what he's asking this federal court to weigh in on
• 30:03
  Speaker 3: is state law questions, because a lot of his case
• 30:06
  Speaker 3: is saying this is a wrongful death because of Texas
• 30:09
  Speaker 3: state law. Even though there is this Comstock Act claim,
• 30:12
  Speaker 3: a lot of the rest of why it's supposed to
• 30:13
  Speaker 3: have been a wrongful death is based on Texas state law.
• 30:16
  Speaker 3: So it's a little odd that of federal judges the
• 30:18
  Speaker 3: first person being pasked with resolving those questions. But strategically
• 30:22
  Speaker 3: I think it's again because mister Mitchell's interested in seeing
• 30:26
  Speaker 3: federal judges weigh in on the Comstock Act and is
• 30:29
  Speaker 3: probably frustrated that Texas and Louisiana haven't yet escalated their
• 30:33
  Speaker 3: cases to federal court.
• 30:35
  Speaker 1: So another abortion related decision, the Court of Appeals for
• 30:39
  Speaker 1: the Fourth Circuit rule that West Virginia can block access
• 30:43
  Speaker 1: to myth of pristone. Yeah.
• 30:46
  Speaker 3: So, there had been a several lawsuits that had proceeded
• 30:49
  Speaker 3: in the Biden years arguing that the FDA's rules permitting
• 30:53
  Speaker 3: access to myth of pristone under certain circumstances preempted contradictory
• 30:58
  Speaker 3: state laws criminalsing myth of pristone, including West Virginia's abortion ban.
• 31:04
  Speaker 3: And the theory was that FDA rules that a uniform
• 31:09
  Speaker 3: federal standard that's meant to govern nationwide and that state
• 31:12
  Speaker 3: laws you know, which are trumped by federal law couldn't
• 31:15
  Speaker 3: conflict with that. And the Fourth Circuit disagreed with that.
• 31:20
  Speaker 3: It certainly doesn't permanently resolve the question. I mean, the
• 31:24
  Speaker 3: plaintiffs in that case could appeal. There are other circuits
• 31:27
  Speaker 3: that could resolve such a question, but it was one
• 31:31
  Speaker 3: of the ways that works and rights supporters were hoping
• 31:34
  Speaker 3: to use the FDA's current rules on mytha pristone to
• 31:38
  Speaker 3: limit state bans, and that hasn't worked to date, and so.
• 31:43
  Speaker 1: What could the state do to make it harder for
• 31:47
  Speaker 1: women to get MYTHI pristone or since it's going through
• 31:50
  Speaker 1: the mail, right, So.
• 31:52
  Speaker 3: We're seeing a whole bunch of efforts to answer that question. Actually,
• 31:56
  Speaker 3: as we speak, one of the most important is taking
• 32:00
  Speaker 3: place in Texas. Texas had a kind of what you'd
• 32:04
  Speaker 3: consider a model bill to target abortion pills. It is
• 32:12
  Speaker 3: kind of a massive pill that touches on everything from
• 32:17
  Speaker 3: the advertising of abortion providers, to internet servers that carry
• 32:25
  Speaker 3: information about abortion, to abortion funds that help low income
• 32:29
  Speaker 3: patients to address abortion, to creating a state law equivalent
• 32:33
  Speaker 3: of the Comstock Act. This was sort of like an
• 32:35
  Speaker 3: abortion pill megabill, right. And surprisingly, this legislation had been
• 32:42
  Speaker 3: introduced during a regular legislative setition in Texas and it
• 32:46
  Speaker 3: didn't pass. So the governor of Texas announced a special
• 32:51
  Speaker 3: session and it's expected that the bill will be taken
• 32:54
  Speaker 3: up again. Then again, it's unclear whether this bill will pass,
• 33:00
  Speaker 3: but if it does, it could be a model for
• 33:02
  Speaker 3: other states trying to take on abortion pills. The challenge,
• 33:06
  Speaker 3: as you mentioned, is that ultimately these pills are coming
• 33:10
  Speaker 3: from out of state, and without some kind of federal action,
• 33:14
  Speaker 3: either from a federal court or from the Trump administration,
• 33:17
  Speaker 3: and most likely from both, states are still going to
• 33:20
  Speaker 3: be somewhat hindered in their ability to take on abortion pills.
• 33:23
  Speaker 1: And what's been happening with the abortion trafficking bills in
• 33:28
  Speaker 1: some states.
• 33:29
  Speaker 3: There have been a bunch of developments. Idaho reached a
• 33:33
  Speaker 3: settlement where it wouldn't prosecute people for referring for out
• 33:36
  Speaker 3: of state abortions. There have been a number of challenges
• 33:40
  Speaker 3: to those bills on the free speech side of things
• 33:42
  Speaker 3: that have been kind of going either subtle or going
• 33:45
  Speaker 3: the way of abortion providers. So that's another thing to watch,
• 33:49
  Speaker 3: especially as this abortion pill megabill moves forward in Texas.
• 33:54
  Speaker 3: There's an interesting question about whether that will raise free
• 33:57
  Speaker 3: speech concerns that will eventually do this because we're seeing
• 34:00
  Speaker 3: kind of warning signs both in these settlements and in
• 34:04
  Speaker 3: litigation when it comes to free speech and access data
• 34:07
  Speaker 3: state aborsion.
• 34:09
  Speaker 1: It's hard to keep track of all the different abortion
• 34:13
  Speaker 1: related issues going on across the country. Thanks so much,
• 34:17
  Speaker 1: Mary Best. Professor Mary Ziegler of UC Davis Law School
• 34:22
  Speaker 1: and that's it for this edition of The Bloomberg Law Show.
• 34:25
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• 34:27
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• 34:31
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• 34:40
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• 34:44
  Speaker 1: and you're listening to Bloomberg