Legal Affairs: SCOTUS, Abortion Pills and Rupert Murdoch

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. We'll touch base for a few minutes now with Mark Joseph Stern, who covers the courts and the law for Slate. To watch TV news, you would think the biggest thing going on in American Jurisprudence right now is the Alex Murdaugh murder trial in South Carolina, but that's just a good guy, bad guy, True Crime plot horrible as those murders were.

At the same time, however, we have the Supreme Court's oral argument on student loan relief this week. Rupert Murdoch weirdly defending his company in a lawsuit by saying, yes, some of his Fox News hosts lied about the election of Biden being stolen. Mark Joseph Stern does a really good job of covering the radical right federal courts in Texas, whose rulings affect the whole country and the post-Dobbs abortion rights battle. Yes, Dobbs was not the end of the abortion rights story in court. Mark, thanks for your reporting first of all, and thanks for coming on. Welcome back to WNYC.

Mark Joseph Stern: Of course. Thank you for those kind words, and thank you so much for having me on.

Brian Lehrer: Let me jump right into your article called Why a Federal Judge is Asking if Abortion is Still May Be Constitutional. Who's the judge and what's the case?

Mark Joseph Stern: Yes. This is Judge Colleen Kollar-Kotelly, who is a Clinton appointee here on the DC federal courts. This is a case involving a federal law that prohibits individuals from blocking access to abortion clinics. Some of the defendants in this case who are accused of blocking access, say, "Well, we actually can't be punished because abortion rights are no longer a constitutional guarantee. We didn't violate anybody's constitutional rights." The judge came back and said, "Well, I'm not so sure about that."

In its decision overturning Roe v. Wade, the Supreme Court held that the 14th Amendment does not confer a right to abortion, but that doesn't mean there aren't other provisions of the Constitution that might protect access to reproductive health. The judge specifically cited the 13th Amendment, which bars involuntary servitude.

A number of scholars and at least a handful of federal courts have argued that forcing a woman to carry a pregnancy that she does not want, constitutes the involuntary servitude, that the 13th Amendment prohibits. Of course, it was passed to outlaw slavery, but according to this judge, it might prohibit other kinds of involuntary servitude as well. It's a pretty bold theory, the judge has ordered briefing, we'll see what the parties say.

Brian Lehrer: Yes. Certainly in regular conversation, separate from legalese, so many callers to the show and many other people believe that an abortion ban makes a pregnancy slave out of women forced by the state to carry and go through labor against their will. The idea of it being slavery doesn't feel like a stretch to a lot of people I know. Who would have to show what in federal court to turn that into an actual ruling protecting women's rights?

Mark Joseph Stern: The federal government here is, of course, prosecuting these defendants. The question now is whether Joe Biden's Department of Justice wants to mount this argument that Dobbs did not declare that there is no right to abortion, but simply held that there is no right in the 14th amendment. I'm not sure if the Justice Department will go that far. It has not responded to my queries, but it would be a way to signal to Democrats and to the American people that the Biden administration is still fighting Dobbs with whatever tools it has.

There was a lot of criticism of the administration after Dobbs, that it wasn't doing enough to try to protect abortion rights as they still existed. This would be a way for the President and for his lawyers to demonstrate that this administration is committed to doing whatever it takes to arguing that the Constitution, as originally understood, prohibits any involuntary servitude, and that includes not just plantation slavery or chattel slavery, but also forcing a woman to be essentially enslaved by the fetus that she is carrying, and having her own will and desire and liberty is subverted to the future life of a fetus that she happens to have inside her body at that moment.

Brian Lehrer: Wow. There's a question to ask Merrick Garland you DC reporters out there the next time you have access to him not just about whether he's going to prosecute Trump and Mark thanks for drawing attention to it. At the same time, you have an article called Dobbs Was Just the Beginning: A Single Judge Could Outlaw The Abortion Pill Nationwide. How can one federal judge in Texas outlaw the abortion pill for our listeners in New York, New Jersey, and Connecticut?

Mark Joseph Stern: Yes. These two cases illustrate the chaos that Dobbs has wrought in the lower courts. On the one hand, you have progressive judges trying to potentially revive abortion rights. On the other hand, you have conservative judges trying to eradicate what remains of abortion access after Dobbs. This case was brought by foes of abortion, who are arguing that the FDA erred when it approved medication abortion way back in the year 2000.

These plaintiffs are asking a judge to nullify the FDA's approval of medication abortion, and to remove the drug mifepristone from the markets, thereby preventing individuals in all 50 states not just red states, but every state from accessing this drug. They brought their case to Judge Matthew Kacsmaryk who is a Donald Trump nominee who's grown notorious in his few years on the bench for being an anti-LGBTQ activist and anti-abortion activist.

Before joining the federal judiciary, he devoted his career to opposing not just abortion, but also contraception, the full range of reproductive rights, and equality. The plaintiffs feel that they have a pretty good chance of obtaining a nationwide injunction from Judge Kacsmaryk that will single-handedly pull medication abortion from the market and deny all patients access to it with the stroke of a pen.

Brian Lehrer: Wow. This is one of several recent articles you've written on the federal courts in Texas and conservatives going judge chopping down there to make national law. What's the big picture?

Mark Joseph Stern: The big picture is that for the first time ever, Biden's Justice Department is standing up to this scheme that's been going on in Texas since the start of Biden's presidency. The state of Texas, its Attorney General has been chopping its cases to the single judge divisions in random parts of Texas, where there's only one federal judge on the court, and so they know they will have him overseeing their case. That's not how it's supposed to work.

Typically, when you file a case in a court, it is randomly assigned to one of a number of judges who sit on that court, but because of the way the courts are set up in Texas, the government is gaming the system. The Texas government has figured out how to place these suits before judges like Matthew Kacsmaryk, like Drew Tipton, another Trump nominee who's pretty much guaranteed to rule in their favor.

Now the Justice Department is fighting back and urging these judges to reassign the cases saying this is terrible for the appearance of justice in this country. By chopping these cases around, it looks like Texas is just exploiting sympathetic judges. Those judges are not particularly open to those arguments, but what the Justice Department's really doing is trying to create a record for the US Supreme Court and trying to I think lobby justices like John Roberts and Brett Kavanaugh, to put an end to this bizarre scheme, where Texas can just shop around for a single judge who's guaranteed to issue a nationwide injunction blocking some major policy of the Biden administration.

Brian Lehrer: Really interesting. Again, thanks for drawing attention to it. Before you go, can I get your quick take on the lawsuit against Fox News's Bannon company by the Dominion voting machines company over falsely saying on Fox that their voting machines were rigged to steal votes against Trump? We talked earlier in the week about Rupert Murdoch's surprising testimony that yes, Sean Hannity and other hosts did lie about the election and that he Murdoch regrets not intervening. My question is, how does that help his defense against the lawsuit rather than basically admit guilt?

Mark Joseph Stern: Yes. The short answer is it doesn't really help his defense. I am doubtful that his lawyers advised him to raise that explanation because, under the law of defamation, an individual can be liable if they acted with reckless disregard for the truth or if they promoted knowing falsehoods. What Rupert Murdoch has essentially admitted is that he knew that his network was lying about Dominion voting machines. He knew his anchors were promoting falsehoods about Dominion voting machines, and he himself did nothing to stop it. Maybe that will make him look better to the public. I doubt it, but that might be his strategy.

The problem, of course, is that he has now put into the records that he knew this stuff was nonsense, and he was still allowing it to be aired on the network that he controls. That will, I think, open him up to a lot more legal liability, allowing a jury to reasonably conclude that he did act with reckless disregard for the truth in letting this nonsense be peddled on Fox News. This is bad news for his own legal defense and I wouldn't be surprised if he tries to backpedal in the coming days or weeks.

Brian Lehrer: Mark Joseph Stern, you and your jurisprudence partner at Slat ,Dahlia Lithwick do such a great job. Thanks for coming on and talking about the courts in the law today.

Mark Joseph Stern: Always a pleasure. Thanks so much, Brian.

 

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