Latest / Bloomberg Law / Weekend Law: Death Row, Abortion Zones & Anti-Straight Bias

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Weekend Law: Death Row, Abortion Zones & Anti-Straight Bias · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: I do not believe that Richard Blossop is innocent. I
0:12
Speaker 2: believe him to be guilty, but I believe him to
0:14
Speaker 2: not have been given a fair trial.
0:17
Speaker 3: This week, the Supreme Court threw out the murder conviction
0:20
Speaker 3: and death sentence of Richard Glossop. It was an extremely
0:24
Speaker 3: rare victory for a death row inmate at the court,
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Speaker 3: but then Glossop's case was extraordinary in many respects. The
0:32
Speaker 3: state of Oklahoma appeared on the same side as the defendant,
0:37
Speaker 3: arguing that his nineteen ninety seven murder conviction and capital
0:41
Speaker 3: sentence should be reversed because of prosecutorial misconduct. The Oklahoma
0:46
Speaker 3: Attorney General, Gentner Drummond, who supports the death penalty, had
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Speaker 3: made an extraordinary concession known as a confession of error,
0:55
Speaker 3: after investigating the case, including the documents that prosecutors had
1:00
Speaker 3: withheld from Glossop's attorney. He was represented at the court
1:04
Speaker 3: by former US Solicitor General Paul Clement.
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Speaker 1: And General Drummond reached the conclusion regretfully, but reached the
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Speaker 1: conclusion our prosecutors elicited perjury here and a man's going
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Speaker 1: to go to his death. We can't allow that to happen.
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Speaker 3: The Supreme Court agreed that the prosecution had violated its
1:22
Speaker 3: constitutional obligation to correct the false testimony of its star witness,
1:28
Speaker 3: something that would have affected his credibility as justice is
1:32
Speaker 3: Elena Kagan and Brett Kavanaugh pointed out during the oral arguments.
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Speaker 4: That seems pretty material to me. I mean, it's just
1:39
Speaker 4: your one witness has been exposed as a liar.
1:43
Speaker 5: Would have made the conviction more likely if the jury
1:46
Speaker 5: knows that not only does he have an incentive to lie,
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Speaker 5: that he's lied on the stand in that he's bipolar,
1:53
Speaker 5: therefore creating all sorts of avenues for questioning his credibility.
1:59
Speaker 3: Richard Glossop has faced nine execution dates during his more
2:03
Speaker 3: than twenty seven years on death row, and came within
2:06
Speaker 3: hours of being executed in twenty fifteen, but prison officials
2:10
Speaker 3: discovered they've been given the wrong mix of lethal drugs.
2:15
Speaker 3: He'll remain in prison as the state decides whether to
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Speaker 3: retry him. Join me as Cliff Sloan. He's a professor
2:21
Speaker 3: of criminal justice at Georgetown Law who's argued death penalty
2:25
Speaker 3: cases before the Supreme Court Cliff. This conservative court denies
2:30
Speaker 3: virtually all execution appeals. In this case, two conservatives, the
2:35
Speaker 3: Chief Justice and Brett Kavanaugh, sided with the liberal justices
2:40
Speaker 3: to make up the majority. The Oklahoma ag said he
2:43
Speaker 3: wasn't surprised by the ruling. Were you surprised?
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Speaker 6: No, I wasn't surprised by it, but I was heartened
2:50
Speaker 6: by it. I wasn't surprised by it because I thought
2:54
Speaker 6: on the merits, the case for glossop in the Supreme
2:58
Speaker 6: Court was so strong, and it seemed in the oral
3:02
Speaker 6: argument Thatsisis were clearly favoring classops claim a couple of
3:07
Speaker 6: themis Thomas and Alito were clearly hostile. And then there
3:11
Speaker 6: were a few that we couldn't really tell exactly. But
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Speaker 6: as you said, the Supreme Court has been extremely hostile
3:19
Speaker 6: to claims raised by death row defendants in recent years.
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Speaker 6: I think unfortunately so, and I think unjustifiably so. And
3:28
Speaker 6: so it was far from a sure thing that the
3:32
Speaker 6: Supreme Court was going to reach this decision.
3:36
Speaker 3: Tell us about the majority opinion by Justice Sonia Sotomayor,
3:40
Speaker 3: where she focused on the state not correcting perjury by
3:45
Speaker 3: its star witness. The admitted hit man who got life
3:49
Speaker 3: in prison in exchange for his testimony.
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Speaker 6: One thing that's very unusual about Golssops case is that
3:57
Speaker 6: you had the Republican Attorney General of Oklahoma, who generally
4:03
Speaker 6: is very much in favor of the death penalty, very
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Speaker 6: strongly saying that he did not get a fair trial
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Speaker 6: and that he should have a new trial, and that
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Speaker 6: gossip was right that there had been prosecutorial misconduct that
4:19
Speaker 6: prevented him from having a fair trial and that required
4:23
Speaker 6: setting aside this conviction and the death center and getting
4:27
Speaker 6: a new trial. So you had a consensus by both
4:30
Speaker 6: Glossop and by the state. And yet even with that
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Speaker 6: consensus view, and even with the strength of their reasons
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Speaker 6: for that, the Oklahoma Court of Criminal Appeals, the highest
4:43
Speaker 6: court in Oklahoma on criminal matters, rejected that position and
4:47
Speaker 6: said that the conviction is going to stand and he's
4:51
Speaker 6: going to be executed. And so it was a sort
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Speaker 6: of remarkable situation where you had the state court rejecting
4:59
Speaker 6: the view it was even of the prosecutor, which was
5:02
Speaker 6: sharing the view of the defendant. Now, this is not
5:05
Speaker 6: the only time that this has happened in recent years,
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Speaker 6: and one that got a lot of attention. Last year
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Speaker 6: was the case of Marcellus Williams in Missouri, who had
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Speaker 6: a strong innocence claim and the office that had prosecuted
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Speaker 6: him and secured the death sentence agreed that he should
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Speaker 6: not be executed, and yet the Missouri courts rejected that
5:30
Speaker 6: and the Supreme Court did not intervene, And that has
5:33
Speaker 6: happened in some other circumstances also. It actually reflects the
5:37
Speaker 6: kind of pervasive problem that we have right now when
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Speaker 6: state courts are rejecting the consensus view of prosecutors and
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Speaker 6: defendants that the individual didn't get a fair trial or
5:51
Speaker 6: didn't get a death sentence fairly imposed, and the state
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Speaker 6: court just barrel ahead, upholding the conviction and ordering the execution.
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Speaker 3: Justice Sonia Sotomayor wrote the majority opinion in Glossop, and
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Speaker 3: she focused on the state not correcting perjury by its
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Speaker 3: star witness, the admitted hitman who got life in prison
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Speaker 3: in exchange for his testimony.
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Speaker 6: Mister Gossops wasn't involved in the actual physical commission of
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Speaker 6: the murder, and the case against the Glossop depended entirely
6:27
Speaker 6: on the testimony of an individual who said that Golssop
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Speaker 6: had recruited him to commit the murder, and there was
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Speaker 6: no other direct evidence that Gossip was involved in planning
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Speaker 6: the murder in any way. It came out later that
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Speaker 6: the individual whose testimony was so critical in implicating Glossop
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Speaker 6: he lied on the stand and that the prosecution knew
6:59
Speaker 6: that it was false testimony, and what it was about
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Speaker 6: was that he had taken lithium, and he testified that
7:07
Speaker 6: he had never been treated by a psychiatrist, and he
7:12
Speaker 6: had no mental health problems, and that he had received
7:16
Speaker 6: the lithium as a mistake when he had requested something
7:20
Speaker 6: for a cold. And one of the things that came
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Speaker 6: out years later, and that was kind of the heart
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Speaker 6: of the case in the Supreme Court, was that the
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Speaker 6: prosecutor had in her notes of a conversation with him
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Speaker 6: a reference to lithium and to the name of the
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Speaker 6: psychiatrist at the facility where he was being incarcerated, and
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Speaker 6: the medical records reflected that he had been prescribed lithium
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Speaker 6: by a psychiatrist and had bipolar disorder, And this would
7:52
Speaker 6: have been very very important for the jury to understand,
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Speaker 6: both in terms of his credibility and again, the entire
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Speaker 6: case against glossops depending on his credibility, and here he
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Speaker 6: blatantly lied about the circumstances of his receiving lithium and
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Speaker 6: whether he had ever been treated by a psychiatrist, and
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Speaker 6: also possible implications that they might draw about whether he
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Speaker 6: would have acted impulsively and whether it could have been
8:21
Speaker 6: connected to his psychological difficulty. So it is extremely important evidence.
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Speaker 6: That was the view of the majority. And there's a
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Speaker 6: Supreme Court case going back to the nineteen fifties called Napu,
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Speaker 6: which says that the prosecution cannot knowingly put on false
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Speaker 6: testimony and that if there is a false testimony that
8:43
Speaker 6: the prosecution knows about, it has to correct that before
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Speaker 6: the jury, and if not, it's a violation of the
8:50
Speaker 6: defendant's constitutional rights, it's a violation of due process. And
8:54
Speaker 6: so Gossop's argument in the Oklahoma Attorney General agreed this
8:58
Speaker 6: is a classic and then shut Nateu violation. The only
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Speaker 6: witness against him gave false testimony. We've got this evidence
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Speaker 6: in the records that shows that the prosecutor she knew
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Speaker 6: it was false testimony, and yet she didn't do anything
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Speaker 6: to correct it. So that was the view of justice.
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Speaker 6: Soda mayor and the majority.
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Speaker 3: Justice Neil Gorsich recused himself from the case because it
9:23
Speaker 3: had come before him when he was on the Tenth Circuit.
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Speaker 3: Justice amy Cony Barrett concurred in part and dissented in part,
9:30
Speaker 3: and conservative Justices Clarence Thomas and Samuel Alito dissented, which
9:37
Speaker 3: comes as no surprise.
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Speaker 6: Well, you know, they generally have been extremely hostile to
9:44
Speaker 6: capital defendant, and even in a case where Justice Alito
9:51
Speaker 6: did join almost all of the other members of the
9:53
Speaker 6: court in ruling for a capital defendant, he wrote a
9:56
Speaker 6: very narrow concurrence in the judgment where he based said,
10:00
Speaker 6: you know, this case and this case only. But that
10:04
Speaker 6: brings up a very important point about the Supreme Court
10:07
Speaker 6: as a whole, because since the modern era of the
10:11
Speaker 6: death penalty began in the mid nineteen seventies, there have
10:15
Speaker 6: been two hundred people who have been exonerated on death row.
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Speaker 6: That is a deeply troubling fact. And yet the Supreme
10:27
Speaker 6: Court very regularly is raising and constructing extremely complicated procedural
10:36
Speaker 6: obstacles that make it very difficult and in some cases impossible,
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Speaker 6: for defendants to have federal courts examine the merits of
10:47
Speaker 6: their constitutional claims, even when those claims relate to innocence.
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Speaker 3: In Glossop's case, the next step will be for Oklahoma
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Speaker 3: to decide whether to retry him. Here's what the AG
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Speaker 3: said about that the.
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Speaker 2: Facts are well developed at this point, but we need
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Speaker 2: to look back on the evidence and see what evidence
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Speaker 2: we actually have that we can go forward on and
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Speaker 2: what witness recollection there is to make a determination on
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Speaker 2: the efficacy of.
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Speaker 5: A jury trial.
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Speaker 3: How do you try a case twenty eight years later
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Speaker 3: when there was never any physical evidence to begin with.
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Speaker 3: Now there's new evidence that the state's star witness led
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Speaker 3: on the stand, wanted to recount his testimony so he
11:27
Speaker 3: can be impeached. I mean, how do you try a
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Speaker 3: case like that.
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Speaker 6: I think it's going to be extremely difficult for them
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Speaker 6: to try the case, and we'll see what charges they
11:35
Speaker 6: would bring for the reasons that you mentioned. Of course,
11:38
Speaker 6: it's a long time ago, but also it's the very
11:41
Speaker 6: reason why this information was so important, because the fact
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Speaker 6: that the only witness against him blatantly lies, you know,
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Speaker 6: he is subject to impeachment on that basis, and so
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Speaker 6: I would think there'll be enormous problems in trying the case.
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Speaker 3: We'll see what Oklahoma decides. Thanks so much, Cliff. That's
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Speaker 3: Professor Cliff Sloan of Georgetown Law. Coming up next. The
12:04
Speaker 3: Court turns away cases on abortion buffer zones. I'm June Grosso.
12:08
Speaker 3: When you're listening to Bloomberg.
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Speaker 7: At long last, this national nightmare that we're going through
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Speaker 7: will be over. Women will be happy, healthy, confident, and free.
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Speaker 7: You will no longer be thinking about abortion because it
12:25
Speaker 7: is now where it always had to be, with the
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Speaker 7: states and with the vote of the people.
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Speaker 3: But the so called national nightmare is far from over.
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Speaker 3: In fact, the fight over abortion rights is still front
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Speaker 3: and center, as several states introduce bills to charge women
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Speaker 3: who get abortions with murder, others introduce bills to classify
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Speaker 3: the most commonly used abortion drugs as dangerous controlled substances,
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Speaker 3: and the decades long fight over abortion buffer zones continues.
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Speaker 3: This week, the Supreme Court delta set back to anti
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Speaker 3: abortion activists by refusing to reconsider a two thousand decision
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Speaker 3: that let states and cities create those protective zones to
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Speaker 3: shield patients from being approached near clinic entrances. The justices
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Speaker 3: turned away appeals over laws in New Jersey and Illinois
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Speaker 3: that argued the buffer zones violate the free speech rights
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Speaker 3: of abortion opponents who want to talk to women as
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Speaker 3: they enter the clinics. Joining me is an expert in
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Speaker 3: the law of reproductive rights, Mary Ziegler, a professor at
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Speaker 3: UC Davis Law School. Mary tell us about that decision
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Speaker 3: in two thousand that these cases are trying to get overturned.
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Speaker 8: So this was part of this series of rulings on
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Speaker 8: this topic called Hill versus Colorado. Hill was about a
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Speaker 8: Colorado law that was kind of prototypical of the era
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Speaker 8: that made it unlawful for anyone who is within one
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Speaker 8: hundred feet of a healthcare facility's entrance to knowingly come
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Speaker 8: within eight feet of another person unless the person they
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Speaker 8: were approaching consented and the idea was either to you know,
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Speaker 8: show them a sign or talk to them or whatever.
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Speaker 8: And a group of anti abortion protesters thought that this
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Speaker 8: violated the First Amendment and they sued, and the US
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Speaker 8: Supreme Court, in a six to three ruling, held that
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Speaker 8: Colorado's restrictions on this kind of speech related conduct were constitutional.
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Speaker 8: So this was a bid by the new generation of
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Speaker 8: abortion opponents to get rid of this prior ruling.
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Speaker 3: I mean, I've wanted to get rid of it for
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Speaker 3: a long time. This was the first time this has
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Speaker 3: come up since the Court overturned the right to abortion.
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Speaker 8: Yeah, it was so. The Court had kind of narrowed
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Speaker 8: the protections that it afforded medical facilities in a twenty
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Speaker 8: fourteen decision out of Massachusetts called McCullen, but the issue
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Speaker 8: hadn't really returned to the court in a meaningful way
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Speaker 8: since then.
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Speaker 3: As usual, the Court gave no explanation for why it
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Speaker 3: wasn't taking the cases. But do you think they just
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Speaker 3: want to avoid another abortion case.
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Speaker 8: It's hard to say. It may be that they didn't
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Speaker 8: want to take another abortion case, and maybe that this
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Speaker 8: was not the ideal case to take because Carbondale, which
15:13
Speaker 8: was the site of one of the ordinances that was
15:15
Speaker 8: being challenged, no longer was enforcing its ordinance, so there
15:19
Speaker 8: was an argument that this was no longer a real,
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Speaker 8: live dispute. If the justices do want to take up
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Speaker 8: an abortion case, they may not want to take up
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Speaker 8: a case that features protesters and potentially vigilantes right as
15:31
Speaker 8: opposed to abortion opponents who are claiming to interpret laws
15:34
Speaker 8: on the books rather than resist them. So It's hard
15:37
Speaker 8: to know how much to read into this. It may
15:39
Speaker 8: not be a sign that the Court's reluctant to get
15:41
Speaker 8: into the abortion debate at all. It may simply be
15:44
Speaker 8: something unique to this case.
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Speaker 3: So the conservative justices Clarence Thomas and Samuel Alito said
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Speaker 3: they would have heard both cases, and Thomas said in
15:53
Speaker 3: a descending opinion that Hill has been seriously undermined, if
15:58
Speaker 3: not completely eroded, and our refusal to provide clarity is
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Speaker 3: an abdication of our judicial duty.
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Speaker 8: I think that Thomas's argument was that the court's subsequent
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Speaker 8: decisions after Hill had afforded more protection for the speech
16:12
Speaker 8: of anti aborshion protesters, and I think Thomas was also
16:15
Speaker 8: stressing what had happened in Dobbs, the decision overruling Roe.
16:18
Speaker 8: So parts of Dobbs complained about what abortion opponents call
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Speaker 8: abortion distortion, the idea that Roe had kind of deformed
16:26
Speaker 8: other areas of the law that weren't theoretically closely related
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Speaker 8: to abortion. And one of the areas that Dobbs flagged
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Speaker 8: was First Amendment doctrine and cited Hill as an example
16:36
Speaker 8: of this distortion. So Thomas pointed to this language in
16:39
Speaker 8: Dobbs and said, well, we already suggested that Hill was
16:42
Speaker 8: a distortion, so why don't we overrule it. That was
16:44
Speaker 8: the other I think inconsistency. Justice Thomas was trying to flag.
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Speaker 3: It takes four votes to take the case, and you
16:50
Speaker 3: had two other conservative justices Neil Gorsuch and Amy Cony Barrett,
16:55
Speaker 3: who had previously joined Thomas in criticizing the Hill ruling,
16:59
Speaker 3: so that would have made four votes. It seems odd
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Speaker 3: that they didn't take it.
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Speaker 8: Yeah, I mean, like I said, there are any number
17:04
Speaker 8: of reasons. We know historically that the justices have sometimes
17:07
Speaker 8: been more uncomfortable with clinic blockaders and protesters than they
17:11
Speaker 8: are with other anti abortion arguments, especially because there has
17:14
Speaker 8: been sort of a flavor sometimes from those protesters of
17:17
Speaker 8: answering to a higher law rather than to the Supreme Court.
17:21
Speaker 8: We also know again that this case had some sort
17:23
Speaker 8: of weird procedural issues that might have made some of
17:27
Speaker 8: the justices who weren't eager to get into this arena
17:29
Speaker 8: again anyway, might have given them an excuse to wait.
17:33
Speaker 8: So we might not know for sure, but again, I
17:35
Speaker 8: think it's much too early to say we won't see
17:37
Speaker 8: the Court get involved in another abortion case in the
17:40
Speaker 8: near term.
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Speaker 3: So then is this a real setback for abortion opponents
17:44
Speaker 3: or not.
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Speaker 8: It's certainly a setback. I think there was a feeling
17:48
Speaker 8: that abortion opponents had when the Court first decided Dabbs
17:51
Speaker 8: that it was kind of open season and that any
17:54
Speaker 8: precedent on abortion rights could be challenged and quickly done
17:58
Speaker 8: away with. And that's certainly not the impression that this gives.
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Speaker 8: It seems that, you know, if, for example, plaintiffs don't
18:06
Speaker 8: have standing, or if a case has defects like this
18:10
Speaker 8: one does, that the justices may just pass on it.
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Speaker 8: I think it is a setback. But how significant is setback,
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Speaker 8: I think is challenging to determine.
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Speaker 3: I mean, are there a lot of prosecutions of protesters
18:22
Speaker 3: outside abortion clinics these days?
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Speaker 8: One of the I think, obviously features of this is
18:28
Speaker 8: that there were relatively few, but there were some prosecutions
18:31
Speaker 8: under the Federal Freedom of Access to Clinic Entrances Act,
18:36
Speaker 8: and they're relatively small percentage of prosecutions per protests, and
18:43
Speaker 8: of course, you know, we expect to see more of
18:46
Speaker 8: them because the Trump administration announced that they would not
18:49
Speaker 8: be enforcing the FACE Act against abortion opponents during the
18:54
Speaker 8: Trump administration sort of regardless.
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Speaker 6: Of what happens.
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Speaker 8: So there already are protests, and we'd expect to see
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Speaker 8: more to some degree. They're also more concentrated, of course,
19:03
Speaker 8: because there are fewer places where it's possible to get
19:06
Speaker 8: a legal abortion of thus fewer clinics, so protesters can
19:09
Speaker 8: kind of concentrate on the remaining locations.
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Speaker 3: Has the Trump administration made any other moves regarding abortion,
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Speaker 3: Not a lot.
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Speaker 8: So the Trump administration has made some of the kind
19:22
Speaker 8: of standard moves we'd expect to see from a Republican
19:24
Speaker 8: president on abortion, so for example, reinstituting limits on foreign
19:30
Speaker 8: aid to NGOs that do abortion advocacy or referrals. We've
19:36
Speaker 8: seen coded references to the idea of fetal personhood in
19:39
Speaker 8: the Gender Executive Order that the Trump administration handed down.
19:43
Speaker 8: As I mentioned, Trump and JD. Vance made clear that
19:47
Speaker 8: there would be no more prosecutions under the face SAC
19:50
Speaker 8: to protect access to abortion clinics or crisis pregnancy centers. Interestingly,
19:54
Speaker 8: so we've seen that we haven't seen a lot of
19:56
Speaker 8: the bigger moves that abortion opponents have been hoping for.
20:00
Speaker 8: That doesn't mean we won't in the future. But Trump
20:02
Speaker 8: has yet to take action on those fronts.
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Speaker 3: What are abortion opponents targeting right now is the abortion
20:09
Speaker 3: film if a Pristone one of their targets.
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Speaker 8: The steps that they're primarily interested in are either imposing
20:17
Speaker 8: new limits on mitha pristone through FDA or directly through
20:20
Speaker 8: AHHS Secretary Robert F. Kennedy, or potentially even removing mythapristone
20:25
Speaker 8: from the market altogether. There's also a potential push to
20:31
Speaker 8: have the Trump Justice Department treat the Comstock Act as
20:34
Speaker 8: a de facto ban on mailing abortion related items and
20:37
Speaker 8: to start prosecutions. Those are I think the two things
20:40
Speaker 8: that have captured the most attention. The other thing, of course,
20:43
Speaker 8: that will have a major impact but won't be as
20:46
Speaker 8: evident in the short term, is that Trump will continue
20:48
Speaker 8: to fill judicial vacancies with conservative judges like Matthew Tasmeric
20:52
Speaker 8: and James Hoe, who've issued pretty strongly conservative and sweeping
20:57
Speaker 8: rulings on abortion since Trump dominated them during his last administration.
21:02
Speaker 8: So I think the courts overall will probably be moving
21:05
Speaker 8: significantly to the right on these issues, but those are
21:08
Speaker 8: not impacts we'll see from the Trump administration in the
21:10
Speaker 8: coming weeks. That's a longer term change.
21:13
Speaker 3: As far as RFK Junior, is he a threat to
21:16
Speaker 3: abortion rights.
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Speaker 8: It's difficult again to say so. RFK had telegraphed during
21:20
Speaker 8: and after his confirmation hearing that he would be investigating
21:25
Speaker 8: the safety of Miffa pristone at Donald Trump's request. Now,
21:28
Speaker 8: abortion opponents, on the one hand, we're excited about this,
21:31
Speaker 8: because there's no real need to studying MIFA pristone unless
21:34
Speaker 8: you're telegraphing a move to limit it. Myra pristone's one
21:37
Speaker 8: of the most studied and really regulated drugs in the
21:40
Speaker 8: United States. On the other hand, of course, the Trump
21:42
Speaker 8: administration has been perfectly capable of taking very quick action
21:47
Speaker 8: to establish policies at wants, and the fact that it's
21:51
Speaker 8: sort of slow walking these policies may mean that the
21:54
Speaker 8: Trump administration is simply trying to buy time rather than
21:57
Speaker 8: building toward a sweeping new abortion policy. So I think
22:00
Speaker 8: it's just too early to say which of those we're seeing.
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Speaker 3: It does seem like there's potential now for red state
22:06
Speaker 3: blue state abortion battles. There's the first criminal indictment since
22:11
Speaker 3: Roe was overturned of a doctor who sent abortion pills
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Speaker 3: across state lines.
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Speaker 8: I don't care what the laws are in the state
22:19
Speaker 8: of New York.
22:20
Speaker 6: Laws in Louisiana matter, and we plan to enforce.
22:24
Speaker 3: Louisiana District Attorney Tony Clayton has filed criminal charges against
22:29
Speaker 3: New York doctor Margaret Carpenter, but New York Governor Kathy
22:33
Speaker 3: Hochel rejected his extradition request in no uncertain terms, never
22:39
Speaker 3: under any circumstances, Well, I sign an extradition agreement.
22:42
Speaker 8: There are two crossworder disputes that have unfolded. Texas has
22:48
Speaker 8: already had a civil judgment, a default judgment against doctor
22:53
Speaker 8: Carpenter from New York that it's going to have to
22:55
Speaker 8: try to enforce in the New York courts. And meanwhile,
22:58
Speaker 8: Louisiana prosecutors are trying to extradite that same New York
23:01
Speaker 8: doctor to Louisiana to face criminal charges. And we know
23:05
Speaker 8: that New York Governor Kathy Hokl has made clear that
23:07
Speaker 8: she has no plans to extradite doctor Carpenter. So both
23:10
Speaker 8: of these cases seem likely to end up with disputes
23:14
Speaker 8: in federal court that will probably eventually make their way
23:17
Speaker 8: to the Supreme Court.
23:18
Speaker 3: There must be a lot of doctors sending abortion pills
23:22
Speaker 3: through the mail. Is there a reason why they went
23:24
Speaker 3: after that doctor in particular.
23:27
Speaker 8: I think it's largely just a function of what evidence
23:29
Speaker 8: they find. In the Texas case, a partner of an
23:33
Speaker 8: abortion patient who took her to the hospital when she
23:36
Speaker 8: thought she was experiencing complications went home found the pills,
23:40
Speaker 8: which doctor Carpenter had prescribed. Remember at this point in time,
23:43
Speaker 8: New York wasn't allowing for anonymous prescriptions, and then reported
23:47
Speaker 8: this to local law enforcement, which led to the complaint
23:52
Speaker 8: filed against her. In Louisiana, it seems to have been
23:56
Speaker 8: similarly coincidental. A woman ordered pills from doctor Carpenter for
24:02
Speaker 8: her daughter, and when the daughter took the pills when
24:05
Speaker 8: the mother wasn't home, she was worried about the bleeding
24:08
Speaker 8: she was experiencing and called nine to one one, and
24:11
Speaker 8: law enforcement again found the pills with doctor Carpenter's name
24:14
Speaker 8: on them. So I think there will likely be a
24:17
Speaker 8: certain amount of randomness in terms of who's targeted in
24:20
Speaker 8: these kinds of cross border desputes, just depending on what
24:23
Speaker 8: law enforcement can actually uncover.
24:26
Speaker 3: And this month Governor Hokeel signed a law that shields
24:30
Speaker 3: the identity of doctors in New York who prescribe abortion pills.
24:34
Speaker 3: Thanks so much for coming on the show. Mary. That's
24:36
Speaker 3: Professor Mary Ziegler of UC Davis Law School. Coming up
24:40
Speaker 3: next on the Bloomberg Law Show, the Supreme Court. Here
24:43
Speaker 3: is a case of reverse discrimination. I'm June Grosso and
24:47
Speaker 3: you're listening to Bloomberg. Marlene Ain says she was denied
24:52
Speaker 3: a promotion and then demoted from her position at the
24:55
Speaker 3: Ohio Department of Youth Services because she's heterosexual, and that
25:00
Speaker 3: her employer put less qualified gay people in those jobs instead.
25:04
Speaker 3: But the Sixth Circuit Court of Appeals throughout her job
25:08
Speaker 3: discrimination case under Title seven, ruling that as a member
25:12
Speaker 3: of a so called majority group, Ames needed to show
25:15
Speaker 3: background circumstances to support the suspicion that her employer is
25:20
Speaker 3: that unusual employer who discriminates against members of the majority.
25:26
Speaker 3: Here's how Justice Elaina Kagan described the opinion.
25:29
Speaker 4: Jamyan, I think that that's the absolutely critical language in
25:33
Speaker 4: this opinion. Because Ames is heterosexual, she must make a
25:37
Speaker 4: showing in addition to the usual ones for establishing a
25:41
Speaker 4: prima facia case. And then it says, you know, Ames's
25:46
Speaker 4: prima facia case would have been easy to make had
25:48
Speaker 4: she belonged to the relevant minority group. Here gay people.
25:52
Speaker 3: Circuit courts covering twenty states imposed this additional requirement. When
25:57
Speaker 3: members of a majority group, including men, groosexuals, and white people,
26:02
Speaker 3: allege workplace bias under federal law, they have to show
26:06
Speaker 3: background circumstances, for example here that LGBTQ people made the
26:11
Speaker 3: decisions affecting aims, or statistical evidence showing a pattern of
26:16
Speaker 3: discrimination against members of the majority group. Justices from across
26:21
Speaker 3: the ideological spectrum question the requirement that members of majority
26:26
Speaker 3: groups meet a higher standard to prove job discrimination than
26:30
Speaker 3: minority groups that have historically faced discrimination. Even the Ohio
26:35
Speaker 3: Solicitor General Elliott Gazer didn't defend the extra requirement under
26:40
Speaker 3: questioning by Justice Amy Cony.
26:42
Speaker 5: Barrett, we agree Ohio agrees that it's wrong to treat
26:45
Speaker 5: people differently.
26:46
Speaker 3: So if we said.
26:49
Speaker 9: Someone like miss Ames who is a member, it doesn't
26:52
Speaker 9: matter if she was gay or whether she was straight,
26:55
Speaker 9: she would have the exact same burden and be treated
26:58
Speaker 9: the exact same way under Title seven. And if she
27:00
Speaker 9: sued as someone who was gay and argued that they
27:04
Speaker 9: were discriminated against under Title seven same.
27:07
Speaker 1: I think that she should have the same burden.
27:09
Speaker 3: Justice Brett Kavanaugh suggested a straightforward way of resolving the
27:14
Speaker 3: case to the attorney for Ames, So.
27:16
Speaker 5: All you want for this case is a really short
27:19
Speaker 5: opinion that says discrimination on the basis of sexual orientation,
27:23
Speaker 5: whether it's because you're gay or because you're straight, is prohibited,
27:28
Speaker 5: and the rules are the same whichever way that goes.
27:31
Speaker 5: That's right, your honor. All we need to say.
27:34
Speaker 3: It was, for the most part, a rather light hearted
27:36
Speaker 3: argument that lasted, and this is the only shocking part
27:40
Speaker 3: of it, five minutes under the scheduled time. Justice Neil
27:44
Speaker 3: Gorsett summed.
27:45
Speaker 5: It up, well, we agree that the court should say
27:48
Speaker 5: that at the very very minimum, we're in radical agreement
27:51
Speaker 5: today on that.
27:52
Speaker 10: It seems to me the council before us seemed to
27:55
Speaker 10: be in total agreement.
27:57
Speaker 3: Joining me. Is an expert in employment law, such an
28:00
Speaker 3: hand you a professor at the University of Connecticut School
28:03
Speaker 3: of Law. Tell us about the facts of the case,
28:06
Speaker 3: why the plaintiff was bringing this action.
28:09
Speaker 10: The long and sort of it was that the plaintiff
28:11
Speaker 10: here brought a lawsuit alleging that she was denied a
28:14
Speaker 10: promotion because she was heterosexual, that the promotion to a
28:19
Speaker 10: bear chief position was in favor of a gay woman,
28:22
Speaker 10: and then later she was demoted from her own position
28:25
Speaker 10: in favor of a gay man. There's some other claims
28:27
Speaker 10: in the case as well, but this is the one
28:29
Speaker 10: Title seven claim that has made it up to the
28:32
Speaker 10: Supreme Court.
28:33
Speaker 3: Tell us about this background circumstances requirement that Aims is challenging.
28:39
Speaker 10: The background circumstances rule is a rule first adopted by
28:43
Speaker 10: the DC Circuit and then adopted by other circuits in
28:47
Speaker 10: evaluating the prima fascia case. In a situation where the
28:52
Speaker 10: plaintiff is a member of a majority group, a white plaintiff,
28:57
Speaker 10: for example, or in this particular case, a heterosexual plaintiff
29:01
Speaker 10: who is alleging discrimination based upon that heterosexual status, the
29:06
Speaker 10: courts in those cases say that you need something else,
29:10
Speaker 10: and that what's that something else, some background circumstance, some
29:14
Speaker 10: additional item of evidence which would support the inference that
29:18
Speaker 10: this was a kind of case where the employer was
29:22
Speaker 10: discriminating against the member of a majority group. When this
29:26
Speaker 10: plaintiff in the Aims case argued and provided some evidence
29:31
Speaker 10: to say I want a jury trial on the question
29:34
Speaker 10: of whether or not I was denied a promotion because
29:37
Speaker 10: I'm a heterosexual woman and therefore discrimination on the basis
29:41
Speaker 10: sexual orientation, just accorded in the Sixth Circuit quart appeal said,
29:46
Speaker 10: you didn't make at your prima fastire case because you
29:48
Speaker 10: are a member of a majority group. You had to
29:51
Speaker 10: provide that additional background circumstances to show that this is
29:55
Speaker 10: the kind of case where the employer was discriminating against
29:59
Speaker 10: that or sexuals and in favor of gay people. And
30:03
Speaker 10: that reason the Sixth Currict gave for refusing to let
30:09
Speaker 10: Ames's case go to trial is what she's challenging up
30:12
Speaker 10: at their Usupreme Court.
30:14
Speaker 3: Did it seem as if a majority of the justices
30:17
Speaker 3: were ready to throw out that background circumstances test.
30:22
Speaker 10: Well, I can't read their minds, and I'm always a
30:25
Speaker 10: little bit wary of using what they say in oral
30:28
Speaker 10: argument as a crystal ball. It's not super predictive of much.
30:32
Speaker 10: But if I were to guess, there's not a lot
30:36
Speaker 10: of support on the court for keeping the background circumstances rule,
30:41
Speaker 10: And it's really just a question of how narrowly or
30:46
Speaker 10: how broadly they write the opinion that sends it back.
30:51
Speaker 10: My best guess, if I were a betting man, was
30:54
Speaker 10: to say that they're going to reject the background circumstances rule.
30:57
Speaker 10: But do they, in the course of doing that, also
31:01
Speaker 10: say some things about the scope of Title seven, which may,
31:07
Speaker 10: for example, implicate recent debates over permissible DEI. You know,
31:13
Speaker 10: that's an open question.
31:14
Speaker 3: There was no discussion of DEI during the oral arguments,
31:18
Speaker 3: and this comes at a time when there's a broad
31:22
Speaker 3: legal and political attack on DEI. Did you expect to
31:26
Speaker 3: hear some conversation about it.
31:29
Speaker 10: I wouldn't have been surprised if there were, because, after all,
31:33
Speaker 10: the key idea here on the part of the plaintiffs
31:38
Speaker 10: is that Title seven shouldn't apply any differently depending upon
31:44
Speaker 10: the identity of the plaintiffs seeking redressed. That is, it
31:49
Speaker 10: doesn't matter whether you're a racial minority or a majority,
31:52
Speaker 10: whether you're a woman or a man, whether you're a
31:54
Speaker 10: minority plaintiffs. Could I imagine that they could write an
31:57
Speaker 10: opinion that broadly which implicates the scope of DEI? Sure,
32:01
Speaker 10: but I don't know that there's appetite to use this
32:06
Speaker 10: case to make that point.
32:09
Speaker 3: Just as Amy Cony Barrett asked whether there be a
32:12
Speaker 3: flood of lawsuits if they get rid of this background
32:15
Speaker 3: circumstances test.
32:17
Speaker 9: Consel, What do you have to say to the Department's
32:19
Speaker 9: contention that this is just going to throw the door
32:21
Speaker 9: wide open to Title seven suits because now everybody can say, hey,
32:25
Speaker 9: this was a discrimination on the basis of race, gender,
32:28
Speaker 9: et cetera.
32:29
Speaker 3: Do you think it would open the floodgates to more
32:32
Speaker 3: lawsuits from members of majority groups?
32:36
Speaker 10: The short answer is no. Opening the floodgates presupposes that
32:39
Speaker 10: there's a lot of water waiting to go down the
32:43
Speaker 10: stream once the gates are open, And I honestly don't
32:46
Speaker 10: know how many majority group plaintiff lawsuits there actually are
32:52
Speaker 10: waiting in the wings, because my assumption is that most
32:55
Speaker 10: illegal discrimination occurs against the minority, not the majority. So
33:00
Speaker 10: if you accept that assumption, then there isn't a floodgates
33:03
Speaker 10: problem to worry about.
33:07
Speaker 3: In this case. The employer, the Ohio Department of Youth Services,
33:11
Speaker 3: has already given a reason why they say Aims was
33:14
Speaker 3: demoted from her administrator position. They said she wouldn't bring
33:18
Speaker 3: a proactive approach to the department's increased emphasis on combating
33:24
Speaker 3: sexual violence in the juvenile correction system. So what happens
33:28
Speaker 3: if the Supreme Court has expected sends this back to
33:32
Speaker 3: the lower court.
33:33
Speaker 10: If and when this goes back to the lower courts,
33:37
Speaker 10: the plaintiffs will have an opportunity to show that there's
33:42
Speaker 10: enough evidence that the reason that they gave was a
33:46
Speaker 10: pretext and that the real reason was discrimination, that they
33:50
Speaker 10: ought to be able to get a jury trial on
33:52
Speaker 10: that question. That's what the plaintiff wants here. This is
33:55
Speaker 10: sort of not something that was talked about oral argument
33:58
Speaker 10: because the Supreme Court or is likely to rule narrowly.
34:02
Speaker 10: But just as Kavanaugh when he was on the DC
34:04
Speaker 10: Circuit wrote an opinion that emphasized that if the employer
34:09
Speaker 10: has already provided a reason, courts ought not to bother
34:15
Speaker 10: making plaintiffs prove the Prima Fasher case, all they should
34:19
Speaker 10: do is to say, is there enough evidence on summary
34:21
Speaker 10: judgment that the plaintiff can prove that the reason was
34:24
Speaker 10: a lion, that the real reason was the discrimination, that
34:27
Speaker 10: they get to have a trial on the matter. All
34:30
Speaker 10: this talk about the Prima Fasher case is secondary. I
34:32
Speaker 10: don't know whether the Court's going to write an opinion
34:35
Speaker 10: which goes that far, but it is certainly something.
34:38
Speaker 11: That at least Justice Kavanaugh has written about how does
34:41
Speaker 11: a plaintiff like Ames show that she was fired because
34:45
Speaker 11: she was heterosexual and not because of the reasons given
34:48
Speaker 11: by her employer in the absence of some blatant acts
34:53
Speaker 11: by her employer, It seems like providing evidence of the
34:58
Speaker 11: motive is difficult.
35:00
Speaker 10: I think generally, discriminatory motive is a hard thing to
35:02
Speaker 10: prove it when you don't have somebody saying it on
35:06
Speaker 10: tape or something like that. Most kinds of discrimination claims
35:11
Speaker 10: rely upon indirect evidence of motive. That is, that you
35:17
Speaker 10: say that it's one reason, but your past conduct suggests
35:21
Speaker 10: that it's not. It's something else. That you may have
35:23
Speaker 10: treated people who are otherwise similar to the plaintiff more favorably,
35:28
Speaker 10: the only difference being that those other people were of
35:31
Speaker 10: a different race or gender. Those are the kinds of
35:33
Speaker 10: evidence that you would expect a plaintiff's lawyer to try
35:38
Speaker 10: and collect and at least try to persuade a jury,
35:42
Speaker 10: or at least try to persuade a judge the lab
35:44
Speaker 10: them persuade a jury of discriminatory motive. It's not easy
35:49
Speaker 10: to prove discriminatory motive, but that's the kind of evidence
35:52
Speaker 10: that they would be looking for and pointing to.
35:54
Speaker 3: Will this decision by the Court have any implications for
36:00
Speaker 3: what I mentioned before this attack we're seeing on DEI
36:05
Speaker 3: policies and programs.
36:07
Speaker 10: I think it depends on how narrowly or broadly the
36:12
Speaker 10: Court writes the opinion. If they narrowly write the opinion
36:16
Speaker 10: to say, going forward, when the plinktiff relies upon the
36:22
Speaker 10: McDonald Douglass framework, they shouldn't be required to prove background
36:27
Speaker 10: circumstances if they are a member of a majority group.
36:29
Speaker 10: And if they just stop there, it's going to have
36:33
Speaker 10: minimal effect on this larger conversation about the legality of
36:37
Speaker 10: THEI program. However, if the Court writes a broader opinion
36:43
Speaker 10: which stresses that Title seven doesn't apply any differently depending
36:49
Speaker 10: upon whether you are a member of a majority group
36:52
Speaker 10: or a minority group, and in the course of doing
36:56
Speaker 10: so is critical of the key US Supreme Court Title
37:01
Speaker 10: seven precedent which allows for some employer discretion to adopt
37:07
Speaker 10: what are called DEI programs, that's the United Field Workers
37:10
Speaker 10: versus webercase, then it might have some daring. But if
37:14
Speaker 10: they stay away from implicitly or explicitly criticizing the Weber
37:18
Speaker 10: opinion and write the opinion more narrowly. Then it's not
37:22
Speaker 10: going to have I don't think that much reliance for
37:25
Speaker 10: that ongoing today.
37:26
Speaker 3: Thanks so much for joining me. That's Professor Sutchen Panja
37:29
Speaker 3: of the University of Connecticut Law School, and that's it
37:32
Speaker 3: for this edition of The Bloomberg Law Show. Remember you
37:35
Speaker 3: can always get the latest legal news on our Bloomberg
37:38
Speaker 3: Law Podcast. You can find them on Apple Podcasts, Spotify,
37:41
Speaker 3: and at www dot Bloomberg dot com slash podcast Slash Law,
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Speaker 3: And remember to tune into The Bloomberg Law Show every
37:49
Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso
37:53
Speaker 3: and you're listening to Bloomberg
38:00
Speaker 4: M