Luncheon Panel: Abortion Law After Dobbs

Episode Transcript
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Speaker 1 (00:03):
Welcome to the panel on abortion law after Dobbs. My
name is Sharif Gergis. I'm an associate professor at Notre
Dame Law School and very grateful to be asked to
moderate an extraordinary panel. I should give credit to Will
Bode for picking the panelists, but I would like to
think that I would have done as good a job.
I could not imagine doing a better job at picking
panelists to talk about with a very complicated set of

(00:25):
issues that were opened by the decision that closed one
question at least for Supreme Court law, of whether there's
a constitutional abortion right, the range of constitutional and statutory
and subconstitutional questions of all other kinds that have arisen,
and our panelists will give you the lay of the land.
But first I was asked, as a matter of housekeeping,
to tell you that the Wi Fi password is all

(00:48):
lowercase courage in action, and also to warn that, unfortunately
one of our panelists, Professor Mary Ziegler, is under the weather,
but very gracious, she's agreed to join us by audio,
so there won't be anywhere to look, but her voice
will boom in the room at the appointed time. I'll

(01:10):
just briefly introduce our panelists and then hand it over
to them for opening shpiels for about eight minutes or so,
and then some discussion among the panel and then we'll
open it up. So please do be thinking about questions
that you've got about the topics as we go along.

Speaker 2 (01:26):
So first we will.

Speaker 1 (01:27):
Hear from Professor Steven Sachs, who's the Antonin Scalia Professor
of Law at Harvard Law School, where he teaches and
writes on civil procedure, conflict of laws, and constitutional law
and jurisprudence. He's authored numerous articles, essays, and book chapters.
He's an elected member of the American Law Institute an
advisor to its Restatement of Law on the Conflict of Laws,

(01:48):
which will be the focus of his discussion here. He's
a recipient of the Federalist Society's Joseph Story Award. He
previously taught at Duke and as a visiting professor at Chicago.
Before that, he practiced litigation with Mayor Brown and d
having clerked for Chief Justice John Roberts and Judge Stephen
Williams on the d C circuit. He received as j
d from Yale a first class BA in philosophy, politics,

(02:10):
and economics from Oxford as a Rhodes Scholar, a bachelor's
summa cum lauder in history from Harvard, where he earned
the Sophia Freund Prize. Second we will hear from Professor
Professor Rachel Rebuchet, who's the Keen Family Dean of Temple
University Beasley School of Law and the Peter J. Leaqueras

(02:31):
Professor of Law. She's a leading scholar in reproductive health
law and family law and has authored many law review
articles and peer reviewed articles in those fields. She's also
author of Governance Feminism and Introduction, and an editor of
Governance Feminism Notes from the Field, editor of Feminist Judgments,
Family Law Opinions Rewritten, published by Cambridge, and an author

(02:53):
of the sixth edition of the casebook Family Law. In addition,
she will join the fifth edition of the casebook Contracts,
Law and Action, and she recently co edited a collection
of essays for Long Contemporary Problems on the pandemics effects
on contract law. Dean Rebische has served as a co
investigator on two grant funded research projects on reproductive health,
including one funded by the World Health Organization. She's received

(03:18):
her jd from Harvard and LM from Queen's University in
Belfast and a bachelors from Trinity University. And before law school,
she worked as a researcher for the Northern Ireland Human
Ireland Human Rights Commission and Human Rights Center at Queen's University.
Professor Stephanie Barclay, my much missed former colleague, is a

(03:38):
professor of law at Georgetown Law School and a faculty
co director for the Georgetown Center for the Constitution. Her
research focuses on the role of different democratic institutions in
protecting minority rights, especially at the intersection of free speech
and free exercise. Her works appeared or will appierre in
the Harvard Law Review, the Chicago Law Review, the Pen
Law Review, the ae Law Journal Forum, and has been

(04:00):
featured in the number of media outlets, including The New
York Times, The Wall Street Journal, the Washington Post. Prior
to joining Georgetown, she was twice voted Professor of the Year.
She has litigated constitutional cases, including before the Supreme Court,
and she served as a law clerk to Judge Randy
Smith on the Ninth Circuit and Justice Gorsich on the
Supreme Court. She's a faculty affiliate at the Georgetown at

(04:23):
the Constitutional Law Center at Stanford, has served as chair
for als Law and Religion Section, and got her law
degree from BYU summa cum laude, where she was Order
of the Koife, and she has a PhD forthcoming PhD
in Law at Oxford where she's a Clarendon Scholar, and

(04:43):
then Professor Mary Ziegler, who will join us by audio
and in spirit, is the Martin Luther King Professor of
Law at UC Davis, where she's an expert on law,
history and politics of reproduction, healthcare, and conservatism in the
US from nineteen forty five onward. She's a Good Gugenheim
Fellow and one of the world's leading historians of the
US abortion debate. She's written or edited numerous articles and

(05:06):
books on social movements and struggles around reproduction, with work
appearing in the Yale Law Journal, the NYU and Michigan
Law Reviews, the Law and History Review, and the Journal
of the American Medical Association. Her seven critically acclaimed books include,
most recently, Dollars for Life, The anti abortion movement in
the Fall of the Republican Establishment, and Roe, The History

(05:29):
of a National Obsession, both with the Yale University Press
as well as after Roe which won the Harvard University
Press Thomas Wilson Price for Best first Manuscript in any Discipline.
And she's got a forthcoming book with Yale on personhood,
the New Civil War, over reproduction. She's advised governors in
Congress and had her work featured on ABC, CBS, all

(05:49):
the networks, New York Times, The Atlantic, the Washington Post.
Before coming to Davis, she was the Daniel PS. Paul
Visiting Professor in con Law at Harvard and the Stearns
Weaver Miller Professor at FSU, where she won several teaching awards.
All right, we will start with Professor Sachs.

Speaker 3 (06:07):
Thank you very much for that kind of introduction. Thank
you to all of you for coming and sharing your
afternoon with us. Today. I'm going to be discussing some
of the issues that have arisen after Dobbs as a
result of conflicting regulation in the States. Dobbs announced that
the appropriate constitutional test for regulations of abortion, for henceworth
be the rational basis test, such that many different state

(06:30):
regulations would be possible, and that has produced a lot
of conflict of laws issues, which is one of my
day jobs. I'm going to talk primarily about a recent
case that has filed about a month ago called Texas
versus Carpenter in the Collin County, Texas Courts. If time permits,

(06:51):
I will also discuss a case in the Ninth Circuit
involving an Idaho statute. And both of these involve a
local state that prohibits abortion or various transactions related to abortion.
And then a question of what of interactions with someone
who is out of state or going out of state

(07:12):
to a state where the abortion procedures are lawful. So
what happens when we have these different rules in different states.
So take Texas fee Carpenter. This is a case involving telemedicine. Ordinarily,
telemedicine regulation is governed by the state in which the
patient is located. So over Christmas, I got the flu

(07:33):
in North Carolina. I tried to have a telemedicine appointment
with my doctor in Massachusetts. They said, no, you are
in North Carolina. We cannot provide services to you because
we don't have North Carolina medical licenses. We have Massa
Chusets medical licenses. And even though you're a member of
our you know you're a client of our practice here,
patient of a practice here. If you are physically located

(07:54):
out of state, we would be providing services in that
other state, so we can't do that. So that's the
general rule. Some states, though, have recently enacted a variety
of laws, sometimes called shield laws, designed to insulate from
other kinds of regulation the practice of various kinds of
medical procedures, mainly abortion, but also some involving gender transition

(08:17):
and other things. And so under these laws, a doctor
in State A where abortion is legal is titled by
state A law to provide care in State B where
abortion is illegal. Now State B may disagree with this.
They may say no, no, no, you're engaging in the unauthorised
practice of medicine. And so Texas v. Carpenter is a
case where that conflict arose. So Texas filed a civil

(08:40):
suit against Margaret Carpenter, a doctor in New York who
had prescribed via some telemedicine procedure. It's not entirely clear
from the complaint to abortion drugs for a woman in
Collin County, Texas, and the drugs were somehow shipped perhaps
mailed to Collin County. In any case, they wound up
there and the patient was later taken to the hospital

(09:04):
for internal bleeding, whereupon the biological father discovered the medications
at home and that they had been prescribed by Carpenter.
The state then sues Carpenter in Colin County Court, seeking
an injunction and civil penalties both for violating their statute
on abortion and also for violating their statute on unauthor
as practice of medicine. So a bunch of questions that

(09:28):
arise here. First, personal jurisdiction, can Texas make Carpenter show
up in Colin County court? Now, in general, the answer
would be yes, because if you send a product into
Texas that you may be bought online or something like that,
you slap a Texas mailing label on it, you put
it in the mail, it goes to Texas, it explodes,
causing injury. That is a classic case of product liability

(09:50):
where you could the buyer could sue in Texas. So
standard personal jurisdiction doctrine would say, oh, yes, Texas can
hear this case. Okay, So they're hearing the case. Question two,
choice of law. Can they apply their law under which
abortion is illegal and the practice of medicine unauthorized as
opposed to New York law where the practices are legal.

(10:13):
In general, the full faith in credit and due process
clauses have been interpreted in cases like All State and
Fields Petroleum to involve a very light touch here, and
in general, states can do what they want so long
as it is not so arbitrary and unreasonable as to
you know, so beyond the pale. And so Texas surely

(10:36):
under that standard could apply its own law in the
Colon County case. Now there's an asterisk on that, which
is that another line of Supreme Court decisions typically not
under the full faith in Credit lause, things like bmwv.
Gore or State Farm say that when it comes to
punitive damages or cases like Huntington versus Ntural. When it
comes to criminal prohibitions, a state cannot punish condom that

(11:00):
was lawful where it was performed. So New Jersey cannot
say the speed limit across the nation is fifty five,
and if you went eighty five in Texas, you committed
a New Jersey crime. That doesn't work. Due process will
stop that. But if you are sending a product into
another state and it gets there, that is typically thought
of as an act in state B. So if I'm

(11:23):
standing in State A I shoot across the border, the
bullet goes across the border hit someone in State B.
That is, you know, black letter law a State B event,
and therefore State B can prohibit that as murder. Even
though I never entered State B. I stayed in State
A and shot across the border. So it would seem
like Texas would be entirely able to apply its own

(11:47):
law in this kind of situation. All right, So imagine
the case is ongoing, Texas wants to subpoena somebody in
New York or get discovery. Will normally states help each
other with discovery, and they have various statutes or of
unifor max and make this more feasible. The shield law
say no shield law say we won't help. Nobody is
gonna is obliged to help. Our courts won't help. No

(12:09):
public officer who gets money from the state will help.
We're not gonna help at all. Now that's something the
full faith in credit lause really doesn't do anything about.
So full faith and credit laws has been interpreted to
require enforcement of judgments, but it does not require enforcement
of subpoenas, enforcement of discovery in another state. They cannot
necessarily get another state to help out with document production requests,

(12:33):
et cetera. Now, in theory that they could, Texas could
impose various penalties for not doing so, but they can't
actually make the officers of New York do stuff in
New York to help them get information. All right, Well,
that leads us to the fourth question the endgame. Suppose
that Texas says, you know, you lose Carpenter, or suppose

(12:55):
Carpenter just defaults you know she's subject to personal jurisdiction
but doesn't show up, and Texas issues default judgment, can
it enforce that judgment? Well, Normally, under the full faith
and Credit laws, judgments from one state have to be
enforced in another, But there is an exception for what
are called penal judgments. Typically that's criminal prosecution, but it
can also include certain kinds of civil penalties that are

(13:18):
done for the benefit of the public and not as
a matter of private mine and thine kind of litigation.
So usually the rule is that a state is not
required to enforce a penal judgment, including a civil judgment
from another state. And to the extent that Texas is
seeking civil penalties for violation of their unauthorized practice rules,

(13:39):
this would be a classic civil judgment. So it seems
like Texas can do whatever it wants in its courts,
but it can't necessarily force New York to enforce those judgments,
and under the New York Shield Law, new York won't.
So what could Texas do? Well, maybe Carpenter has assets
in other states that would enforce it. Maybe she uses
a bank that also has branches in Texas, and Texas

(14:00):
could grab money from the bank and sort of garnish
their assets because they owe her money somewhere else. I mean,
there are all sorts of weird things that might then happen.
Fifth issue the Texas Sorry, the New York law provides
for a clawback. It says that anytime somebody sues about
abortion and it would be against New York law, you

(14:21):
can sue them back for trouble damages. This is probably
not okay under the full faith and Credit clause. There
are some interesting issues that I'd be happy to talk
more about in Q and A. But there's also very
weird wrinkles. Because the state of Texas has sovereign immunity,
so Carpenter can't sue Texas in New York's courts. She

(14:43):
could trive suing the officers of the state of Texas,
the lawyers who signed the papers. So are they protected.
Do they have a constitutional right to do what was
lawful in Texas such that New York cannot punish them
for conduct lawful in the state where it was performed.
That The issue, as far as I know, has never
been litigated. There's only a few cases on clawbacks, mainly

(15:05):
involving foreign countries, and in general US courts don't care
what the foreign countries think, but they do tend to
care what other states think. So very interesting questions are
going to arise. Last comment I want to make, because
my time has already elapsed. A better strategy, perhaps for
states in Texas's position, might be individual litigation. So if

(15:27):
the biological father had sued Carpenter in Texas. In Texas,
a number of things would have happened. One, any judgment
would not have been a penal judgment, which means the
full faith and credit clause would demand its enforcement in
New York courts. Two, they could raise the clawback issue
as a compulsory counterclaim, so they could say, you have

(15:48):
to make your clawback arguments in Texas, where they will
lose because if you could make them, you know, I'm
not sovereign immune, so you could sue me, and so
you have to sue me arising out of this transaction. Three,
they could go to federal court. There is no original
jurisdiction in district courts for state versus citizen of another

(16:09):
state cases. There's original jurisdiction the Supreme Court, but they
never hear those cases. They always deny leave to file.
But there's nothing for district courts. But an individual consue
another individual in diversity, go to federal court and then
you get whatever discovery you want. There's no way that
New York can resist a federal subpoena or federal discovery.

(16:29):
And so there might be a lot of advantages to
individual suits that are permitted by state laws rather than
public enforcement. So I'll stop there, and apologies for going
over time.

Speaker 4 (16:48):
Dean Robuche, thank you, thank you for inviting me to speak,
and thank you for that introduction to shield laws. I've
been asked to talk about the proliferation of mailed medication
abortion and those of you who have studied this issue,
the issue of abortion since stobs, know that nineteen states

(17:12):
now ban abortion before viability some of them from the
earliest moments of conception, some before six weeks. At the
same time, twenty one states have passed the shield laws
that Professor Sachs has just described. Though in my eight minutes,
I'm going to spend a little time talking about the
provisions that are relevant to the paston Carpenter litigation. The

(17:34):
eight states that define care legally protected reproductive healthcare quote
regardless of the patient location, which is Professor Sachs notes,
is a turn from how we typically define the location
of care, which is where the patient is. But let
me start with a focus on medication abortion, its regulation quickly,

(17:57):
it's uptake and the uptake of mailed medication abortion pills,
how that's shaping the legal landscape post jobs, and how
that has proliferated on the ground. I think that's the
tascent I've been given for today before talking a little
bit about some of the litigation that was before the
Supreme Court this term, so just by way of background

(18:22):
for those of you not as steeped in abortion law
as some of us on the panel. Medication abortion is
the two drug regimen that ends a pregnancy ten to
twelve weeks of gestation. The growth of virtual clinics, which
offer medication abortion through telehealth follows a court decision that

(18:43):
temporarily enjoined the FDA's restriction on the first drug in
a medication abortion, and that's myth of pristone of the
drugs regulated by the agency and the sixteen with the
same safety restrictions as Mytha pristone, Mythi prison stone was
the only one that you had to pick up at
a health care facility, but did not have to take

(19:05):
in the presence of a provider. In December twenty twenty one,
the FDA announced that it would lift that rule and
permit as well certified pharmacies along with certified providers, to
dispense MiFi pristone. So, with the removal of the in
person restriction, MiFi pristone, along with my seprostol, the second

(19:26):
drug in a medication abortion, has now been mailed to
patients as prescribed mailed before twenty twenty one, but the
uptake is significant. So take for example, the proliferation of
the virtual clinics I just mentioned. You can think about
how Abortion on Demand, one of the largest US based

(19:46):
virtual clinics, operates, Just out of my own curiosity, how
many in this room have heard of the online clinic
abortion on demand. Excellent, thank you, Jonathan, So this will
be so in twenty two states. Abortion on Demand prescribes

(20:09):
medication abortion up to ten weeks of pregnancy as approved
by the FDA, only for people aged eighteen and older
as not to run a foul of parntal involvement restrictions,
and the entire process from counseling to the receipt of
abortion bills takes about two to five days and is
about three to four hundred dollars less expensive than a

(20:33):
clinic based procedure. As I said, this is not an
entirely new phenomenon. There were investigation investigational studies that study
the efficacy and safety of mailed medication abortion. But one
group in addition to Abortion on Demand that bears mentioned
is AID Access, which is a group that works with

(20:55):
providers to mail medication abortion across the country, including to
states where abortion or tel abortion is prohibited. And of
course people order pills online without aid Access or without
the help of a virtual provider. So I think I
don't tend to talk about this subject without noting that,

(21:17):
of course people, not all people who are seek abortion
are candidates for medication abortion, let alone mailed medication abortion.
It depends on various forms of privilege a smartphone as
stable internet connection and uncomplicated pregnancy. But and for people
who have who seek to terminate a pregnancy later past

(21:41):
ten twelve, the first trimester pregnancy, they continue to need
the resources of a brick and mortar clinic. Nevertheless, my
mail medication abortion has become one vehicle for delivering care
across state lines, no matter where one lives. So there
are numerous and how much time do I have left?

(22:06):
Just sorry to break the flow? Five minutes, three minutes?

Speaker 2 (22:13):
Okay?

Speaker 4 (22:15):
So efforts to curb access to pills they have been
at the heart of a number of strategies, and one
such strategy was present in a Supreme Court case decided
this summer. Alliance for Hippocratic Medicine sued to remove Mithi
pristone from the market, arguing it was unlawful the FDA

(22:38):
to approve the drug in two thousand, Juste Chasmeric Federal
District Court judge and Amarillo agreed. In April twenty twenty three,
the District Court issued a preliminary injunction suspending MYFI Perstone's approval.
On emergency appial, the Fifth Circuit stayed the district court
suspension of myf for pristone's approval, but affirmed the injunction
suspension of the FDA action past twenty sixteen, which was

(23:03):
included the lifting of the in person dismensed requirement. The
Fifth Circuit went on to hold that plantifs likely failed
to timely challenge the two thousand FD approval and likely
failed to plead an injury regarding mef for pristone's generic approval.
In twenty nineteen. However, the Court found that the agency's

(23:24):
changes to the regulation of MiFi pristone after twenty sixteen,
including the lifting of the in person pick up rule,
was unlawful. So before a unanimous Supreme Court, alliance did
not have standing to bring its claims because the organization
or its members couldnot show that the FDA's actions cause
them injury. But Justice Kavanaugh, who wrote the majority opinion, stated, quote,

(23:48):
it's not clear that no one else would have standing
to challenge the FDA's relaxed regulation of MiFi pristone. So
I think the one I was asked to talk about
this case. The chief reason to talk about but too,
it's also that you standing aside, the core issues of
this case are not resolved, and I think we've already

(24:11):
seen the ways in which Alliance arguments, along with its
call to retrieve to revive the Comstock Act, which Professor
Ziegeler will talk about, they're not going anywhere. And in fact,
I think it's worth mentioning that the claims that we
saw in Alliance briefings of track arguments that pre exist

(24:33):
the Alliance Rhypocratic Medicine litigation by years. You can look to,
for instance, of February twenty twenty two pre DABS report
by the Family Research Council entitled the Next Abortion Battleground,
Chemical Abortion, in which the report describes medication abortion as
a violent regime that results in profound dangers to people

(24:56):
and is uniquely traumatic. Maybe in Q we can talk
about how some of those efforts to impede the proliferation
of medication abortion have arisen in states like Louisiana classifying
medication abortion drugs as dangerous controlled substances. So at the

(25:18):
same time, in my last couple of minutes, I think
it's worth teeing up that efforts to impede medication abortion,
including mail medication abortion meet efforts to expand its reach.

Speaker 2 (25:30):
And you know.

Speaker 4 (25:32):
It's also for those of you who study this issue,
it's worth noting that in the year after Dobbs, the
average number of abortions in this country went up, and
that is in part because of mailed medication abortion. So
chief among those efforts shield laws. As Professor Sachs described,

(25:53):
I won't go through the ways that shield laws try
to protect provider's licenses and malpractice insurance rates, happy to
give a lot more description in our conversation. He mentioned
the ways that shield laws attempt to thwart investigations discovery,
both criminal and civil, and the ways that they shield

(26:16):
providers from extraditions so long as a provider, those who
help the provider are not fleeing from justice and contrives
to article for the Constitution, the clawback provisions. And finally
the eight states Massachusetts, New York, California, Colorado, Washington, Vermont, Maine,
and Rhode Island who incorporate those measures, but also, as

(26:41):
I said, define protected reproductive healthcare regardless of patient location,
which is you may have read in popular media is
one of those have been come the sites, particularly New
York where doctor Carpenter resides and practices law and has
a license. That language of shield laws has been one

(27:04):
way in which providers have mailed medication abortion to states
across the country, including states like Texas where abortion is
banned very at conception with exceptions.

Speaker 1 (27:23):
Sorry, thank you so much, Professor Barkley.

Speaker 5 (27:31):
Thanks for It's a treat to be on this panel,
to get to learn from that experts in this area.
I was asked to speak about issues related to abortion
at the intersection of First Amendment issues, so religious exercise
and free speech issues. The first case I'll talk about
is Bela health and wellness versus Weezer coming out of

(27:51):
the District court in Colorado. So we've been hearing a
lot of interesting remarks about medical abortion and the way
that you can receive these two different how would you say,
receiving the pill at two different moments, right, two different junctures.

Speaker 4 (28:09):
So you receive mepropristone that's one pill, and you take
that and then twenty four hours or forty eight hours later,
four pills.

Speaker 6 (28:16):
That's my Saprosston.

Speaker 5 (28:17):
Yeah, Okay, she explained it much better than I could.
That's relevant because some women in those twenty four hours
changed their mind and they decide, I don't really want
to go through with this abortion.

Speaker 6 (28:30):
That was a bad idea.

Speaker 5 (28:31):
Some women have also come forward and there was evidence
in this case that they were pressured to take the
first portion of the medication. There was corrosion involved, there
was a boyfriend who was making life difficult, and that
really wasn't the course of action that they wanted to
engage in. And so in Colorado there's a medical center

(28:52):
and one of the plaintiffs is an obgi N who
will proscribe progesterone in that window of time in order
to help reverse the effects of abortion. That first trench
medication may not be successful on its own anyway. There's
a statistical little something like twenty sometimes to thirty percent
of patients. If they only take that medication, the abortion

(29:14):
won't be successful, and so the progesterone increases the chance
that the woman won't have an abortion. Progesterone is also
prescribed for women if they have had miscarriages or at
their risk of miscarriage, or there's a pre term birth
risk for the woman, and so there are a lot

(29:36):
of different ways in which doctors are prescribing progesterone, many
of them off label. So Colorado recently in twenty twenty
three passed a law called SB twenty three to one
ninety that makes only the particular use of progesterone illegal
in the context where a woman would.

Speaker 6 (29:52):
Like to reverse the abortion.

Speaker 5 (29:55):
I think this context is interesting because it turns on
its head a lot of the typical rhetoric and arguments
we hear about choice for women, their autonomy, their ability
to make decisions with informed consent with their provider, and
this particular las seems to flip a lot of that
and not give a lot of weight to the woman's
choice and desires and the advice she's receiving from a

(30:16):
medical provider. So Bela Health and Wellness sued and sought
a preliminary injunction, both arguing that this violated their religious
exercise to preserve life and also their speech rights and
how they were counseling their patient. The legislation specifically says
in the text of it that these anti abortion centers

(30:39):
are ground level for a well coordinated anti choice movement.
Some of the legislators also called these medical clinics fake clinics.
Part of that is relevant for how the district court
ultimately ruled in this case under Smith.

Speaker 6 (30:55):
So what the court said is that.

Speaker 5 (31:00):
Because there were secular exemptions, so Colorado is willing to
allow doctors to continue to use progesterone for other reasons
to stop miscarriages, to stop pre term births, but is
trying to prevent progesterone just to stop abortions.

Speaker 6 (31:15):
That that is.

Speaker 5 (31:17):
Not generally applicable under Smith, and so that triggers strict scrutiny.
The court also said that Colorado seemed to be aiming
at these sorts of religious pro life medical centers.

Speaker 6 (31:29):
It was the object of Colorado's.

Speaker 5 (31:31):
Action, which meant that this law was not neutral. And
the court also said we could have failed Smith under
a third basis, and that was that the law allowed
a mechanism for individualized exemptions, and so it wasn't generally
applicable on that basis either, And that meant it was
the end of the case. It just meant that we
then move on to see whether or not Colorado satisfied
strict scrutiny in the court here found that they barely

(31:53):
made a passing attempt. They had very weak evidence that
there was really some sort of medical risk different from
any of those other activities, and so there is a
preliminary injunction in place that protects Bella health. But I
think it's interesting to keep in mind that preliminary injunction
is narrow, and so other providers that don't have a
religious objection to helping women reverse their abortions, but just

(32:14):
think that that's good medicine in the best interest of
the woman and her autonomy and her health, they're unable
to use progesterone right now in Colorado for those purposes.
Another case that I'll talk about briefly is the individual
members of Medical Lining Board Licensing Board of Indiana versus
anonymous plaintiffs. And this was a case that I had

(32:35):
the privilege of working with much missed former colleague Rick
Garnett at Notre Dame.

Speaker 6 (32:41):
We filed amikas brief in this case.

Speaker 5 (32:43):
So this is sort of the flip side of the
Bella health context, where you have a group of plaintiffs
and association representing Jewish women who argue that in some
context their religious exercise would require them to obtain an abortion.
So there are questions in that case about associational standing.

(33:06):
I'm not going to get into any of those. I
think the strict scrutiny aspect of that case is the
most interesting. Indiana has passed a law that says life
begins at conception, and so ending life will constitute abortion.
But they have some exceptions to that requirement when it
comes to things like in vitro fertilization, disposal of those.

Speaker 6 (33:27):
The material related.

Speaker 5 (33:28):
To that, the fetuses for that, and they have exceptions
for the health of the mother, rape, or fetal abnormalities.
And so the plaintiffs in this case have argued, because
you have exceptions to this rule, then that means you
don't really have a compelling interest in passing this law,
and so it should fail strict scrutiny. And the lower
appellate court agreed this was They requested the Supreme Court

(33:55):
in Indiana to hear this case, and the court essentially
decided not.

Speaker 6 (33:58):
To because they said, there's very few.

Speaker 5 (34:01):
Women who are actually affected by this right now, there's
not evidence that the planets in this case are currently
pregnant or seeking an abortion. They would rather hear the
case on a full record. There was one descent from
that decision, so this case is still penning. It's at
the trial Court. Right now, let me tell you why
I think that the lower repellent court, though, got it wrong.
Let me start by what I think is just some

(34:24):
deductive reasoning in this case. So the Supreme Court has said,
in a case called Cruison, that there can be no
gain saying the state's interest in protection and preservation of
human life. So if there's any government interest that is
compelling saving a human life has got to be it.
In Dabbs, the Supreme Court made clear that states now

(34:45):
have the right to define human life as beginning at
conception if they wish to. We're different points, but as
early as conception, they can say that that is when
human life begins. Indiana has done that. They've done that
in their law. And therefore, and I think it's pretty
straightforward that Indiana has a compelling interest in protecting what

(35:06):
they have defined as human lives and protecting them. So
the plaintiffs are arguing that the existence of exemptions means
that this law should fail strict scrutiny. That's not how
it normally works. Exemptions mean that we have triggered strict scrutiny.
But now we have to ask questions about are there
other ways that the government could accomplish its compelling interest.

(35:29):
Is the government really advancing its compelling interest? That's usually
what's at staked in the strict scrutiny cases. So if
we go back to Bella Health, for example, it is
not as though the Bella Health medical providers are saying, yeah,
we really don't care about the health of women and
we would like to cause them to hemorrhage, thank you
very much. That's our religious exercise. That's not what they're saying.
They're saying, we just disagree that that's what providing progesterone

(35:51):
to these women would do. We don't think that the
evidence supports any sort of risk you government are talking about.
That's why we prescribe progesterone to women in all sorts
of contexts. We actually their health would be benefited if
we reverse the abortion according to their wishes. That's usually
it was the question in other context like the COVID litigation,

(36:12):
which the plane off site in this case. So in
the COVID context, when people religious groups were asking for
religious exemptions, the dispute was about whether or not their
actions would in fact harm human life, or whether they
could meet socially distanced in churches with masks on in
ways that would still be safe for human life. The
abortion context here is unique because the plaintiffs have conceded

(36:33):
there is no less restrictive means for the state to
protect the human lives that it wishes to protect, and
by definition, every additional abortion that the state allows to
move forward under the state's definition is ending another human life.
And I think this context is unique because every human
life that the state is protecting arguably is advancing a
compelling interest. So those are some of the reasons why

(36:56):
Rick and I argue that the Indiana Court of Appeals
got it wrong. And if the Indiana Court of Appeals
rule remained the law, that would mean that if the
Aztecs moved into Indiana and said they had a religious
exercise in human sacrifice, there's no compelling interest in ending
that sort of practice. Because we allow people to kill
each other in self defense, we end life support. There's

(37:19):
a lot of context in which we don't protect human
life uniformly, and that doesn't mean it shouldn't mean it. It
has never meant in any other case that we can't
advance it in particular context where the government thinks that
that's a priority I'll go ahead and end there.

Speaker 1 (37:35):
Thank you, Professor Barklay, and then finally, Professor Ziegler.

Speaker 7 (37:44):
If you can hear us, Hey everyone, I'm going to
be kind of haunting you, which makes it appropriate that
I'm discussing the oldest law of the ones I think
on top today. I've been asked in eight minutes to
cover constitutional fetal personhood, wrongful death suits I think Professor
Sachs already alluded to as a potential path or one
that pro life groups in Texas and elsewhere are already exploring.

(38:08):
And then finally, the Comstock Act itself. So if we're
thinking of the last era of litigation around abortion as
sort of centered on row or the abolition of row,
depending on your political point of view, the new era,
I think really is going to be about, in some ways,
either the restoration of some kind of role like standard

(38:29):
for progressive movements or the establishment of some kind of
fetal personhood standard for people in the pro life movement.
It's interesting to note this is both new and not new.
Since the nineteen sixties, there have been arguments for various
forms of Fourteenth Amendment fetal personhood. They've varied quite a bit,

(38:51):
so the movement in the sixties would not have really
been making anything that we could designate as often at
least be making anything we would designate an argument rooted
in originalism, whether sort of Steve's version of originalism original
little public meaning originalism, original and ten originalism. There were, instead,
I think, efforts on behalf of people in the movement
to fit arguments for Fourteenth Amendment personhood into then dominant

(39:16):
constitutional paradigms, for example, arguing that the unborn child should
be qualified as a suspect classification, or that there was prejudice,
for example, based on residents in the womb or age.
Over time, of course, the relationship between the conservative legal
movement and the pro life movement has grown much closer,
and originalism in various permutations has grown more influential in

(39:39):
the federal courts. And along with that we've seen a
rise in originalist pro life or at least personhood adjacent
scholarship by scholars like Joshuacratik, John Finnis, and Robert George.
And we've also seen a more open embrace of personhood
on the movement side too, as a kind of new
great white whale or strategy. Goal is embodied in a

(40:01):
new North Star letter signed by a variety of leading
groups and activists. This strategy recognizes that the recognition of
Fourteenth Amendment personhood in the short term in the US
Supreme Court seems unlikely, and that a kind of longer
term campaign involving step wise changes the recognition of fetal
personhood or fetal rights in various combinations in state laws

(40:23):
should come first. We are starting to see signs of
this approach being followed already. We're seeing state laws calling
for the recognition of personhood across all legal domains in
Tennessee and Oklahoma already filed this term, and we're also
seeing more step wide changes to the identification of fetal

(40:44):
life in places like Texas, where a fetal child support
bill has been filed. Personhood is also going to play
a role in some of the cross border conflicts that
Professor Sachs previewed for you. Texas Right to Life is
currently recruiting biological fathers to sue a range of actors,

(41:04):
not just doctors who are mailing pills into states, but
abortion funds which facilitate cross border travel for abortion donors
to those funds, Internet service providers that host websites offering
information about abortion, the websites themselves and a variety of
other actors deemed aiders, and a better state legislation on
this point is defining aiding and betting more broadly to

(41:28):
accommodate these kinds of proposals. The wrongful death suits, of course,
will raise conflicts of law questions, particularly as they target
a range of actors who have arguably fewer contacts with
the states that prohibit abortion than the Carpenter case does.
But they're also designed to advance the principle of personhood
by assuming, as the Alabama Supreme Court did in interpreting

(41:51):
that state's Wrongful Death of a Minor Act lest February,
that a fetus or unborn child is a person for
the purposes of that law. They are also interesting questions
about whether there will be conflicts of law issues arising
around personhood, particularly around the question of domicile where a
state prohibiting abortion may see a particular abortion as affecting

(42:11):
more than one person, that is to say, the unborn
child and the patient seeking the abortion, whereas a state
protecting abortion may see only one person in that on
that side of the island, only one on the other
like a provider and a patient. Some of these stuits
will also undoubtedly contain Comstock Act claims. The Comstock Act,
for those of you who have been fortunate enough not

(42:32):
to have to study the Comstock Act as much as
I have, is an eighteen seventy three obscenity law that
was originally introduced by its namesake, Anthony Comstock. The Comstock
Act is much broader than a provision on abortion. It contains,
for example, even in the very clause mentioning abortion, discussion
of other items for indecent or immoral use. It had

(42:55):
emerged as a candidate for a kind of short term
potential path to an NOOW national ban for lawyers in
the pro life movement who recognized, I think correctly that
a constitutional personhood ruling in federal court might not be
achievable in the near term. I credit this as a
historian to Jonathan Mitchell, the former Texas Solicitor General, who

(43:17):
argues that he came up with this idea of Comstock
as a potential door to prohibiting abortion before Dobbs was
even issued. His argument relies on the text of the statute,
which refers in pertinent part to items designed, adapted, or
intended for producing abortion. This is a modification of the
original text, which referred to items for the prevention of

(43:40):
conception or the procuring of abortion, or other items for
indecent or immoral use. Mitchell and other attorneys, including attorneys
from the Alliance Defending Freedom, have settled on an interpretation
that this language bars the mailing or receipt not only
of abortion pills, but other abortion related paraphernalia. Although certainly

(44:02):
the focus of the use of the Comstock Act in
the movement since twenty twenty two has been on abortion pills,
there are different ways we could see the Comstock Act
emerge as a major issue of in litigation. The movement,
I think has pinetopes primarily for obvious reasons, on the
possibility that the Trump Department of Justice will begin enforcing

(44:22):
the Comstock Act, or at a minimum, withdraw a memo
issued by the Office of Legal Counsel under the Biden
administration that relies heavily on cases from primarily the nineteen thirties, twenties,
and teens, interpreting the Comstock Act not to apply to
all abortion related mailings, but only to those done with
an unlawful purpose. I have been asked innumerable times what

(44:46):
I think the Trump Justice Department will do on this score,
and my honest answer is that I have no idea.
My sense from people in movement, both movements with whom
I'm speaking for various or illistry projects, is that they
don't necessarily all know either, So I think some of
this is still very TVD for that reason. Of course,
there are lots of efforts to get the Comstock question

(45:07):
to the Supreme Court that don't involve direct DOJ enforcement
as a spark. These include an ongoing or an effort
to resurrect the suit against mifipristone that's been brought as
an amended complaint and District court in Amarillo by the
attorneys general of Kansas, Missouri, and Idaho, who feature Comstock

(45:31):
Act claims more prominently, in my view, than the original
plaintiffs in the Alliance Defending Freedom case did. There's also
ongoing litigation involving the so called sanctuary cities for the
Unborn movement, with which Mitchell has worked quite closely. There's
litigation of most I guess the furthest Along litigation in
New Mexico involved two cities Hobbes and Clovis, and two

(45:54):
counties that passed ordinances requiring abortion clinics to obtain special
licenses known as a abortion Licenses to comply with the
Comstock Act, and imposed various penalties or created particular private
enforcement mechanisms for those who violated the provisions. The New
Mexico Attorney General challenged these ordinances in an emergency mandamus

(46:17):
action before the New Mexico Supreme Court to have the
ordinances declared void and enjoining their enforcement. He argued that
the laws the local ordinances that was were preempted by
New Mexico's state law, and that they violated New Mexico
state constitutional provisions on equal protection, due process, and privacy,

(46:38):
as well as the state's Equal Rights Amendment, which the
state court had already applied in the context of abortion.
This case, on the other side, featured arguments by the
Alliance for Freedom and Jonathan Mitchell. The New Mexico Supreme Court,
in a decision earlier this week, declined to reach any
question about federal preemption or the Comstock Act, instead holding

(47:00):
that the local ordinances were both expressly and implicitly preempted
by state law. They also declined to reach the state
constitutional questions. Mitchell was elated by this result and is
hoping that it can be a springboard for federal litigation,
that there is now a conflict between state and local
law and federal law, and his view that would justify

(47:22):
federal court intervention. At the same time, he's not relying
exclusively on the new Mexico litigation their ongoing efforts involving
others so called sanctuary cities to initiate litigation of this kind.
Many of the ordinances that are introduced by the movement,
at least in states where abortion is protected, feature the
Comstock Act pretty prominently, and this is true as well

(47:44):
in states that recently in the last at least in
twenty twenty three or twenty twenty four past abortion protecting
ballot initiatives, including in states like Missouri. So the goal
is to generate as many of these conflicts as possible
to maximize the chances of a case ultimately ending up
before the Supreme Court one way or another. This will then,
of course, generate another round of litigation about whether mister

(48:07):
Mitchell's interpretation of the Comstock Act is correct. We have
reason to believe that Justices Alito and Thomas are sympathetic
to it, at least based on questions they asked in
oral argument during the Alliance case. We know very little
about what the other justices think. There may also be
questions raised about the constitutionality of the Comstock Act, but again,

(48:29):
a lot of this is very novel. I can say,
as someone who's a historian of this stuff, that people
would mention the Comstock Act primarily in the context of
laws one no longer thought about. So recent litigation on
these subjects is there with respect to its provisions on obscenity,
but on the provisions that we're discussing now, there's relatively

(48:50):
little guidance. So I think, as is the case with
a lot of what we've been discussing today, we're dealing
with a lot of messy, complicated issues on which courts
have not offered.

Speaker 6 (48:58):
A lot of light.

Speaker 7 (49:00):
And that makes this area of law of course interesting,
which why we're having a panel, but also very difficult
to predict ahead of time.

Speaker 2 (49:06):
I'll stop there, thank you very much.

Speaker 1 (49:14):
I did have a few questions, but I first want
to give the panelists a chance to react, to offer
follow up thoughts of any kind to anything that's been
discussed so far, so sad it sure.

Speaker 4 (49:26):
I'd love to hear from Professor Sachs to your point
about jurisdiction. If you're making the argument for doctor Carpenter
that there is no jurisdiction Texas does not have jurisdiction
in Collin County over her, what are the arguments that
you would make. And then for Professor Barclay, I'm curious too.
You know that the percentage of abortions that can be

(49:49):
reversed is quite contested. So many have argued that mephipristone
ends a pregnancy in well over ninety five percent of
cases alone. And then it's my surpros style that clears
the uterus. And so I think it's a fascinating conversation,
particularly in terms of your amicus. How you grapple with

(50:10):
the contestation of facts that different organizations and groups have
published and see very differently. It's something I think quite
a lot about. So I'd be very interested in how
you wrestle with that idea.

Speaker 5 (50:29):
So the question is what in light of the fact
that sometimes so.

Speaker 4 (50:33):
I think that if you read a Goopmacher report, it
has a very different characterization of abortion reversal. My point
is not to say they are right and that another
is wrong. But my question is, when you are at
the crossroads of making an argument in which underlying facts

(50:58):
are contested, how does that figure into the legal argument
that you advance. It's a question I think is really
interesting for medication abortion generally, which is why I'm really
drawn to the the report that I cited.

Speaker 3 (51:16):
Professor Zax and then so what I would say, and
I was just looking up the reference here. Now, I
would advise Carpenter, this is not legal advice to put,
you know, all of her efforts on justicecur such as
duck decoy hypothetical from the Ford Motor Company case. If
any siff pro folks in the room or nodding along.

Speaker 2 (51:38):
Not much of a reaction.

Speaker 3 (51:39):
Yeah, I mean, you know, that's like you would think
a crowd like this people were like, oh yeah, the
duck TIKOI apathetic. So in general, I'd say, like, look,
you're just gonna lose. In general, I would say the
way I teach my students is black letter law that
if you buy a product from an out of state
you know, manufacturer, out of state provider, and they slap

(52:00):
a Texas mailing label on it, and you give them
your address and they ship it to you, and it
blows up and it causes injury, can be they can
be suited in Texas like you can file suit where
you get injured. There's some discussion in the Ford Motor
case of well, what if it's this one unusual sort
of isolated sale case. But even then, I mean, the

(52:24):
isolated sale language is coming from cases involving stream of
commerce where you gave the product to some other distributor
or sold it to someone else and somehow it wound
up in New Jersey. But the cases of direct shipment
where you knew it was going to Texas and you
sent it to Texas. It's a really easy minimum contact
story to tell. I don't think you can get out

(52:45):
of personal jurisdiction there. The question is whether it matters,
because at the end of the day, if Texas awards
a judgment against you, how are they going to enforce it?
Because New York's not going to enforce it. New York
doesn't have to enforce an of the fulvagan credit laws.
It's a penal judgment. Excuse me. The real issue is
whether any other state will have it, or whether you
have any assets in Texas or you have any assets

(53:06):
with institutions that are subject to jurisdiction in Texas and
who could be sort of garnished on your behalf. So
if you know Merrill Lynch is subject to jurisdiction in
Texas or something, they could go after that. But that
would really be the biggest question for me is what
can Texas do with the judgment? I think you're absolutely
subject to personal jurisdiction in Texas under current doctrine.

Speaker 5 (53:28):
So Parkley, Yeah, So I think it's an interesting question
about how effective is that first round of treatment and
what do we do about more specifically the point you're
asking about, what do we do about the empirical debates
surrounding that. Part of the issue, I think is that
the court was less focused on is that necessarily going

(53:50):
to be successful on its own and more focused on
what if that was the more likely candidate for the
government's compelling interest in that case, and that is, we'll
giving progesterone after that first round hurt the woman? Has
the government provided evidence that then prescribing progesterone if the

(54:11):
woman has changed her mind is going to be detrimental,
And they really hadn't there really wasn't evidence that they
were able to marshal in any sort of rigorous way
that progesterone would cause severe consequences, which is why they
allowed progesterone lots of other non abortion context Tell me
if you're aware of a report that says that there
was on that. But I think the evidence is pretty

(54:32):
inconclusive about saying that progesterone is going to be harmful
in that context. But to your other point about the
success of abortion in that context, part of what the
government did try and argue is well, we don't know,
and so we shouldn't use off labeled drugs when we
don't know if it'll be successful or not. And then
the court said, okay, well that's your interest and you're

(54:53):
just being wildly under inclusive because we allowed doctors to
prescribe off flapul drugs and lots of contexts where we
don't have absolutely verifiable evidence that for sure this is
going to be successful or it's not, or without it
it will be successful, or with it it won't be.
And so your lack of even handedness here means that
you are triggering strict scrutiny.

Speaker 1 (55:17):
I the other panelists want to make any points for
raising any questions for sex.

Speaker 3 (55:23):
So I guess the one question I'd have for Professor
Ziegler floating in the ether is So the new Mexico
Court decision, I thought it was very interesting and it
seemed to go out of its way to make very
clear we think this is an adequate and independent state ground.
So Supreme Court stay out of it. And I guess
my question is, you know, what do you make of

(55:47):
that part of the opinion and do you think that
that will insulate it from Supreme Court review? And in particular,
are the limits on municipalities effective even if the state
law is partially preempted by Comstock? So the state says
municipalities don't regulate this stuff, and according to the municipalities,

(56:12):
the state law is permitting things that Comstock forbids. But
I guess it would be possible for a state to say, well, municipalities,
even if this stuff is illegal under federal law, we
don't want you super adding to that. And so is
that how the state laws are framed such that they
would have their effect regardless of whether they're actively trying

(56:34):
to license something that Comstock prohibits, or did the state
laws just say, we give a state right to X,
and maybe if there's a federal prohibition on X, that
state right disappears.

Speaker 7 (56:46):
I'm enjoying, no, no, yeah, I think so. I'm enjoying
the sort of appearing like this. I think being like
the ghost of Christmas past is going to be my
new normal.

Speaker 4 (56:55):
Yeah.

Speaker 7 (56:55):
I mean, so the origin story of that part of
the New Mexico Supreme Courts, it's just that that's what
the Attorney General asked them to say. Right There was
a deliberate effort to focus exclusively on state law issues
to insulate the ruling from Supreme Court review. Like, that's
not there by accident. As to whether it'll work, I think.

(57:16):
I mean, now I'm going to put on my historian's
head and just say it depends on the Supreme Court's
appetite for taking on the comstock question. I mean, this
is a door that the Supreme Court can walk through
if it doesn't really want to deal with this. Right now,
I don't know if the Court has an appetite for
dealing with a comstock act or not. Pretty clearly, during
the Alliance litigation, a lot of the justices did not

(57:36):
particularly seem excited about taking up the question. You know,
maybe that changes now. I don't know, so it's a
little hard for me to predict. As for the sort
of dynamic between federal preemption, state preemption, and municipal preemption,
you know, it would depend in large part on one

(57:56):
how broadly or narrowly the court interprets the Comstock Act.
Some I think mister Mitchell's argument is that the Comstock
Act would effectively shut down all abortions, because all abortions
involve some item placed in the mail or common carrier,
with I guess rare exceptions in which you're in a
state that manufactures the relevant items in state and doesn't

(58:20):
put them into interstate commerce at all. If the court
were to interpret the law that broadly and there were
to be no way to sort of have local materials
used for abortion, there could be a pretty, I think
major conflict between federal law and state law. The focus

(58:45):
to date, at least of most efforts within the movement
to use the Comstock Act has been on abortion pills.
In theory, some of the statutes were talking about, like
New Mexico's Health Freedom Law, apply more broadly than to
just abortion. That law in particular applies to gender affirming care.

(59:08):
Some of them apply to IVF or contraception or a
variety of other things. So it's conceivable that there would
be areas where state law would conflict with the municipal
ordinances and not with the Comstock Act. But that would
of course depend, I think, on the state law in question,
and there is a sort of There are a lot

(59:29):
of these suits potentially being generated in a variety of
states with very different laws, right, some of them state
constitutional measures, like Missouri's ballot initiative, some like the Health
Freedom Act in New Mexico. So it's hard to generalize,
but I think that there'd be some possible scenarios where
that could be true.

Speaker 5 (59:51):
As Barclay had a point on this, I just wanted
to very briefly note something that Steve and I both
ran out of time to talk about. That is a law,
and that was and Idaho that criminalizes procurement of an
abortion by recruiting, harboring, or transporting a pregnant miner to
receive the abortion. And the Ninth Circuit recently upheld most

(01:00:12):
of that law, but had concerns and struck down and
then severed the recruiting portion of it because that deals
with expressive speech sorts of conduct. And so this is
the point Steve made when we were discussing. But part
of the court's reasoning there was, well, you could obviously
make have protected speech opposing abortion or doing the sort

(01:00:36):
of opposite thing of recruiting. So that must mean that
speech is protected if going the other way, if you're
recruiting someone to obtain an abortion. And that's not usually
how you think about speech if it comes to like
speech that's aiding criminal conduct. So just because you could speak,
as Steve pointed out, defending someone from being killed, doesn't

(01:00:57):
mean that the opposite is true. That you could speak say, hey,
we should we should really go kill that guy. You know,
there's a reciprocal sort of principle that must in here
because one of those speeches is aiding criminal conduct and
the other is not. And the Ninth Circuit didn't really
grapple with that particular issue.

Speaker 1 (01:01:18):
Mary, I have a question for you. I keep looking
at the ceiling.

Speaker 7 (01:01:23):
I know I'm into this.

Speaker 6 (01:01:25):
This is great.

Speaker 2 (01:01:25):
I got it in the stomach. So I have a
question for you.

Speaker 1 (01:01:28):
And then you should also use it as an opportunity
to ask or raise any other points you wanted for
the panel, and that's whether in your research into the
personhood issue you have found people talking about what they
expect to happen the day after a personhood ruling. So
we know for sure that it would mean that Congress,
under section five of the fourteenth Amendment, can.

Speaker 2 (01:01:50):
Legislate on the issue.

Speaker 1 (01:01:51):
But there's probably a very good argument for Congress being
able to do that anyway under the Commerce Clause. We
know that courts can can't compel legislatures to pass laws,
and they can't compel prosecutors to bring prosecutions under existing laws.

Speaker 2 (01:02:08):
So is there a game plan for.

Speaker 1 (01:02:12):
What how concretely a personhood ruling would have impact on
the ground, over and above what political actors were or
weren't already willing to do.

Speaker 7 (01:02:24):
Yeah, I mean, I think the best way to characterize
this is that there's there's a debate, and unsurprisingly if
you think about I mean, so, personhood has been a
goal of the movement for over a half century, and
in that window, there have been a lot of different
perspectives on what recognizing personhood would require and permit, and

(01:02:45):
that's that's still true. So I think and I have
my understanding and this is from interviewing people for my
research who are currently working on this. There is an
argument that liberal state abortion laws would be unconcer institutional
insofar as they protected other persons in the context of

(01:03:05):
homicide but didn't accord those same protections to unborn persons.
The tricky question then becomes whether those states, and indeed
all states, would have to apply prohibitions on abortion as
they do prohibitions against homicides. So, for example, there are
no exemptions for punishing women in homicide laws, Like there's

(01:03:25):
no infanticide exception for women, there's no infantaside exception for
women killing domestic abuser, right, I mean, there's no exceptions
in homicide laws beyond the kind of you know, necessity,
self defense, the sorts of things were accustomed to. My
understanding is that that is a subject of robust debate.
There is a contingent of lawyers who identify as abolitionists

(01:03:46):
to argue that equal protection in such a situation would
require that women be punished for abortion too, and you know,
evenly as would any other defendant who's culpable. There are
there others who argue that, of course, there are other
exceptions to in homicide or not exceptions exactly, but scenarios

(01:04:07):
where we allow for someone to be punished more or
less harshly depending on the identity of their victims. So,
for example, if you murder a law enforcement officer, in
some instances, you may be subject to elevated penalties. So
for example, you know, Josh Kratick, in my conversations with him,
said that it would be entirely possible for states to

(01:04:27):
punish people less for an abortion than they would for
another homicide related offense. And I asked him what would
happen if a state tried to exempt an entire category
of defendant from any sort of punishment whatsoever, like women,
as many in the pro life movement have long wanted
to do, when he said, that would be more constitutionally tricky.
So the lay of the land, as I take it,

(01:04:50):
is that there's a lot of debate about what personhood
would require legally. And that's also true because, of course,
all of this discussion so far as sort of proceeded
on the premise that personhood is most going to be
most relevant in the context of abortion, which is of
course why it's become so salient. But if you know,
personhood begins at the moment of fertilization. That would have

(01:05:11):
implications potentially for in vitro fertilization two, as the Alabama
Supreme Court's ruling kind of raised in February, it would
have implications for other areas of law or the word
person appears. And so in the nineteen seventies, when there
was a robust debate about a human life amendment, and
that was actually something that seemed politically plausible, which is,
you know, of course, so not true now that it

(01:05:32):
got dropped out of the Republican Party platform, which is
saying something in twenty twenty four. At that time, there
were people in the movement who argued that recognizing personhood
would have implications for various kinds of welfare policies, expanding
benefits for pregnant women, et cetera.

Speaker 2 (01:05:49):
Et cetera.

Speaker 7 (01:05:49):
So I don't think we fully work out what the
kind of day one, or even day thirty or day
three sixty five version of personhood looks like, in part
because I think certainly there would be disagreements between people,
you know, across the ideological spectrum on questions of a worsion.
I think there are also disagreements on either side of
the debate on precisely what personhood requires. And some of

(01:06:12):
that is because I think Dobbs came quite quickly and
changed personhood from something that was kind of the aspirational
kind of moonshot into something that could be achievable at
the state level in the near term and maybe even
something achievable at the federal level in the not so
distant term. And I think that's why we're seeing a
lot of these kinks still being worked out.

Speaker 1 (01:06:35):
Great so, and then one question for both Dean rebishe
and Professor Sachs. In the lead up well before Dobbs,
one characterization of what would happen after Row by many
of the people who wanted Row to go was oh,
it'll just send the issue back to the states.

Speaker 2 (01:06:53):
And one way that could fail to be.

Speaker 1 (01:06:54):
True is if it gets nationalized, either through a statute
or through a personhood ruling that then has for their
effects along the lines of Professor Ziegler is talking about.
But another thing that came up right around when Dobbs
came down, and that was detailed to some extent in
Dean Rabischet's article on this co authored article on this
which made the rounds, and I think was cited by

(01:07:16):
the dissent and Dobbs is actually, you know what, all
the states are going to try to interfere with each
other on this issue as well. So it's not going
to be fifty fifty flowers bloom. It's going to be
fifty flowers fighting with each other. The metaphor has fail.

Speaker 3 (01:07:32):
What so angry flowers?

Speaker 1 (01:07:34):
Yeah, angry flowers. So what But now both of you
have just given obstacles to state's ability to interfere with
each other. So my question is, if you can project
out ten years so some of the unlitigated questions have
been litigated and some of the open questions have been resolved,

(01:07:56):
do you think there are any realistic ways in which
the state will be able to interfere or at the
end of the day, will it really be something like
what was projected before either Congress takes it or if
it doesn't. The states are mostly governing themselves.

Speaker 3 (01:08:13):
So I could see various ways that it would be resolved.
I could imagine a view that's sort of like the
view of the Middle District of Alabama judge who in
the Yellowhammer litigation recently, who said, essentially there's a very
strong right to travel. This was the position of the
United States, which had intervened in the case. I imagine that

(01:08:35):
the new administration might take a different view, but that
essentially no state can interfere with going across the border
to do something legal in another state. I don't know
that that's the only way it could be resolved. I
could also imagine a very strict territoriality rule. It says, look,
you know, if you're in Alabama and you do an

(01:08:57):
act preparatory to something that is criminal under Alabama law,
that is, uh, you know, aiding in a bedding, whether
or not the sort of actual commission of the act.
So if you're in Alabama and you plan, you know,
to go to another state and use marijuana, let's say
Alabama can say, sorry, you're buying a bus ticket is

(01:09:20):
an overt act in furtherance of the conspiracy, et cetera,
and we're gonna put you in jail for that, even
if marijuana is legal somewhere else. So that raises you know, what, like,
is there is there an affirmative is right to travel
is sort of affirmative right that sort of covers anything
that involves travel, even if it also involves something that's

(01:09:41):
that's within Alabama and is plausibly illegal under Alabama law.
So if you're going across the state lines to a
bank robbery and you buy a bus ticket, that's an
overt act in further conspiracy. They can prohibit that even
though it involves travel across state lines. And so, uh,
you know, what is the what is the relevance of
its legality elsewhere? When it comes to national borders, the

(01:10:03):
doctrine is pretty much, you know, we don't care about
other countries. So if you buy a plane ticket to
go do sex tourism, like we're gonna throw you in jail,
and we don't really care that involved international commerce, you know,
like the Alabama can absolutely throw you in jail for that.
So is there something about it being legal in another
state that takes it sort of out of Alabama's ability
to prescribe inside Alabama acts? So I again, in some way,

(01:10:27):
I'd say there's two possible ways. One is very strong
right to travel sort of everything is determined by which
states allow abortion within their territory. Or you can have
the opposite, very strong sort of where is the person
acting rule. It's also territorial, but in a different way.
In general, when stuff like this happens and you have

(01:10:47):
sort of big conflicts, they're sort of a rush to
territoriality because at least those are lines, at least we
know where you are and where you're acting. In general,
the field of conflict of laws has sort of drifted
away from territoriality, you know, one hundred years or so,
and you know, so what if you're a citizen of
Alabama but you are going to college in another state

(01:11:09):
and they regulate you. Typically the answer is no when
it comes to criminal prohibitions, and I think that is
only going to become stronger as it gets more complicated.
The one exception of this is the scariotis sponge fishing case,
which is if you go into international waters but you're
a citizen of Florida, Florida can still get you.

Speaker 2 (01:11:28):
Good to know, Dean Vshan.

Speaker 4 (01:11:31):
No to self, So I guess you know I would.
What I would add is maybe something that's more tethered
to on the ground realities of enforcement, which was raised earlier.
I don't tend to find as convincing the analogies to homicide,
the Ninth Circuit case or bank robbery, where those are

(01:11:56):
actions that are illegal across the country. In the situation
of shield laws, you have New York stating a very
strong public public policy of protecting its in state providers
from out of state investigation and the like, and a
very clear public policy of allowing abortion through viability, etc.

(01:12:24):
And So the reason I bring that up is because
I think that those guardrails of travel and territoriality are important.
But I also think that in addition to those potentially
resolving some of the questions of interstate conflict, I think
it is incredibly expensive to try to enforce some of

(01:12:44):
these regimes because the push pull we already see. You
have New York stating through its AG and other offices
that will defend doctor Carpenter, this, that, and the other way.
And then we have Texas proposing bills, for instance, that
repeat the re go claims that Professor Sax just mentioned,
that try to penalize internet providers that create deceptive trade

(01:13:07):
practices through internet cells. And all of those are measures
completely within the reman of a Texas state legislature to
try to stop or impede the influx of mailed medication abortion,
but to actually make it happen is incredibly hard, logistically complicated,
and it's the reason that there's comedy between states in

(01:13:31):
terms of uniform acts that premit investigation and discovery and
subpoenas and everything else that have now been have exceptions
created in them through shield laws. They facilitate what is
the less expensive, easier way to do business among states.
And so long winded way to say, there's a great

(01:13:55):
piece coming out by Charlie Silver at the University of
Texas that says, you know, who's going to pay for
this and when will it become too expensive? So not
completely satisfying answer, but I think a nice dindem to
the nice points, the interesting and persuasive points that Professor

(01:14:15):
Sachs made.

Speaker 2 (01:14:17):
Great, Okay, and I guess yeah, go ahead, Yeah.

Speaker 7 (01:14:21):
I was just going to say on enforcement, one of
the kind of interesting trends that's emerging in bills so far,
and it's very early, obviously I understand that, but there's
been a huge embrace of civil enforcement and private enforcement,
and a lot of the bills that are coming out
of states, in particular sort of strict liability bills with
very very high minimum damage amounts. So, for example, a

(01:14:44):
bill in Tennessee on mailing, prohibiting the mailing of abortion pills,
which is of course already illegal in Tennessee, but authorizing
a private enforcement action that would lead to a minimum
of five million dollars in damages per abortion. So I
think part of the way that states are trying to
circumvent these enforcement challenges is by outsourcing enforcement to private citizens.

(01:15:09):
Right biological fathers seemed to be kind of the private
plaintiff of choice at the moment. I don't know if
that's going to continue necessarily. I mean, there's a lot
of historical precedent for that in the movement, so that
may continue. But that's one of the things, and frankly,
that's even been true with criminal enforcement if you think
about what I mean, not that anyone would think about
this other than me, if you thought about how the

(01:15:31):
Comstock Act was enforced, when of course you need a
warrant to open people's mail and there would be no
ready way to identify if abortion pills are being mailed.
It relied heavily either on sort of what we would
today think of as catfishing, right people posing as people
seeking abortion medication or contraception, And it also involved a
lot of private public partnerships right, private citizens informing postal inspectors,

(01:15:56):
private citizens doing their own investigation because they were upset
and abortion had occurred, or because they were upset someone
had received abortion related advertising. So I think it's important
if we're starting to think about enforcement to understand that
there will be lots of non government actors in the picture,

(01:16:16):
and that when government actors are in the picture, it
may proceed the way it did when the Comstock Act
was sort of at its peak, or when enforcement was
more common than it's become in recent years.

Speaker 3 (01:16:29):
One thought, actually, I mean, I don't think there's any
appetite for revising the Comstock Act in any way whatsoever,
because I can't imagine anything that we get sixty votes.
But one possibility would be a revision of the Comstack
Act that would apply only to use the mails into
a state in which abortion is prohibited, sort of like
a twenty first Amendment Section two kind of idea that

(01:16:51):
you would allow. The idea would be that a state
that wants to furmit abortion can keep products out of
its state, but that we're not going to prohibit, you know,
stuff going on outside those state borders. Again, I could
imagine that some sort of territorial compromise along those lines.

Speaker 7 (01:17:12):
Yeah, it would be interesting because I think if you
I mean holding the possibility that I'm not sure I
agree with Jonathan Mitchell's interpretation of the Comstock Act. But
if one does, it doesn't include any exceptions either. So
another interesting feature of the kind of territorial compromise that
Professor Sachs is describing is that it would better track
what states that prohibit abortion currently do.

Speaker 4 (01:17:33):
Right.

Speaker 7 (01:17:34):
There is no life exception in Jonathan Mitchell's interpretation of
the Comstock Act, for example, which is not something that
a lot of states would currently counter to my knowledge,
any state would currently countenance. Although there are some states
that have affirmative defenses as opposed to exceptions, they all
have some kind of life protection. So it's true that
the Comstock Act is sort of an imperfect vehicle even

(01:17:56):
for people who want to prohibit abortion, because if you
interpret it the wave conservatives have that doesn't track what
states are trying to accomplish today.

Speaker 1 (01:18:05):
Okay, well, we have a little over twenty minutes for questions,
so I'm going to stop with mine at this stage
and see what any of you have, Yes, sir, for
those of us.

Speaker 8 (01:18:17):
Who are not partisans in the abortion wars. What's really
interesting about this panel is the issue of how a
federal system deals with conflicts between states.

Speaker 2 (01:18:27):
And I'm wondering if any of.

Speaker 8 (01:18:29):
You have looked carefully at the past history of such
things that the most recent one that occurs to me
would be the issue of reno divorces. And I don't
know whether there were any anti divorce activists who tried
to find ways around full faith and credit ways of
getting their state to not recognize a reno divorce. The

(01:18:52):
obvious early cases would be the pre Civil War issues
over slavery, where which really the most similar in the
sense you had people with strong passionate feelings about what
other states were doing.

Speaker 5 (01:19:06):
Uh.

Speaker 8 (01:19:07):
And I don't know what what legal devices were tried. Obviously,
in some cases you've got federal law, which which which
prevents the conflict. I'm thinking of the marijuana situation at
the moment, where as long as marijuana is federally illegal, uh,
it's presumably not not an issue of one state trying

(01:19:29):
to subvert in the neighbor states prohibition on marijuana. But
have you have you looked at at the general history
history of the issue of which this is just one
special case.

Speaker 3 (01:19:42):
I would say that actually the most recent case of
this was same sex marriage, because you know, uh, Obergerfell
was a if I'm remembering the fact pattern, right, it
was a marriage on a tarmac in Maryland? Is that right?
And so it was by by non Maryland citizens and
so it's all of those cases were conflicts cases, you

(01:20:03):
know question. You know, the Defensive Marriage Act before it's
repeal was section two was a conflicts uh question, and
what do we do about recognition? So whenever you have
big important disagreements between states, it immediately becomes a conflex
question because people outside that state will want that policy too,
which whatever direction it is. And in some cases it's

(01:20:29):
easy to sort of territorialize it and say, okay, well
you're in that state and it's fine, but you go
out of that state and it's not fine. So the
regime of under same sex marriage was pre Doma that
it was up and even Postmas, up to every state
to decide whether it wanted to ring. Ye, you could
be married in Hawaii but not in Texas. That is

(01:20:53):
still the rule for things like first cousin marriages, which
some states permit and some states will recognize even though
they don't permit it, and some states won't recognize them
at all. So you can have couples that can move
from state to state and whether they're married or not
changes depending on where they go. Before that, they're the
divorce cases primarily fifties and sixties with like divisible divorce,

(01:21:14):
where they'd say that sort of one state can say, yes,
you're divorced, whereas another state says, no, you're not. That's
when Justice Jackson said, you know, if there's one thing
people are entitled to expect from the lawmakers, it's knowing
whether they're married and if so, to whom. But you
know that still the law is that that can change,
you know, state to state depending Before then it was

(01:21:35):
guest statutes and whether passengers could sue drivers and cars
depending on which state they were in. And then you know,
you go further back and you get you get different
cases ultimately, you know, leading up to slavery, which is
the main conflicts question that the Fugitive Slave Acts did
not entirely solve. In more ways than one.

Speaker 4 (01:21:53):
I would tack on that. You know, probably every family,
like course, you teach a case like may which is
the first cousin case that you just referred to, which is,
you may be married in Rhode Island, but New York,
for public policy reasons, doesn't have to accept that you're
married for the purposes of New York law. To your
point about divorce and that being a generative example, and

(01:22:18):
I use that example too to just say that there
are lots of analogies that people are thinking through, some
more fraud than others. But this idea of you know,
the making an argument for or against state sovereignty, for
or against extra territoriality, it's gonna flip. So you know,

(01:22:38):
you know, your nightmare could be someone's dream, Your dream
is someone's nightmare. But you know, those arguments, for instance,
could also be employed to uphold or to cut against
the abortion trafficking laws that we didn't get a chance
to really talk about. And so I appreciate the point
very much because there's no there's no partisan silver bullet

(01:23:02):
to the question of these conflicts.

Speaker 3 (01:23:05):
And we have Jonathan Adler in the audience. But I
think that marijuana federalism would be a good example of
a situation where states have different policies. You know, it's
sort of not crazy that they would have either policy
A or policy B. It's not like a state that
licensed bank robbery. Like you know, we understand that there
are disagreements here, but questions about what happens when someone

(01:23:25):
plans to go from State A to State B to
make use of the laws there is that something State
A can do something about, you know, would be very.

Speaker 1 (01:23:32):
Much live well the questions, Yes, sir.

Speaker 3 (01:23:46):
So, then even the non shield state might not enforce
the penal judgment. Most states usually don't, but it's up
to them, so it would depend on their own laws.
If she were in a non shield state, though, so
they would help with discovery. So if you needed to
serve a subpoena on somebody and make them testify and

(01:24:09):
things like that, a non shield state might you know,
have an officer show up to make them go to
the deposition and so on, whereas a shield state would not.
One issue, And maybe this is again a question for
some of the audience. It didn't occur to me beforehand,
but I wonder whether Texas, if it wanted to, could

(01:24:29):
litigate in federal court and get federal discovery advantages and
so on if it made a federal common law nuisance claim,
because it would say like, look, we've got our own
authorized practice of law. You know, on others practice medicine,
people are violating it. It's going across the border and
so on. It's maybe a stronger claim than you know,
you're emitting carbon dioxide somewhere, and so you know, I

(01:24:52):
wonder because that's that's how states have tried to sue
citizens of other states with original jurisdiction district court in
cases like the Milwaukee case. And I don't know if
they could try doing it here.

Speaker 4 (01:25:05):
I would just tack on too that it's interesting the posture,
the way this was taken and the timing was taken.
Because all shield laws have exemption, I have exceptions for
conduct or actions outside that are contrary to other laws
of the state, or that sound in tort or contract,
and so I always expected the first suit would be

(01:25:28):
a negligence claim or outside scope of practice or practicing
without a license, which you can't do in New York.
So it's against the laws of New York to practice
without a license in another state, and so maybe I
shouldn't have said that.

Speaker 3 (01:25:47):
One other thought is on the clawback provisions. I wonder
if Texas could seek declaratory relief in Collins County for
a ruling that the claw back provisions don't apply as
a choice of law matter, and the Texas courts would
decide that as a matter of Texas choice of law.
And I think that would be effective then to protect Texas,

(01:26:12):
you know, officers, agents, employees, et cetera, against litigation elsewhere.
Even if the penal judgment is not enforceable, this would
be declaratory relief. So it would be a different kind
of judgment and maybe you would have full faith in
credit effect.

Speaker 4 (01:26:24):
But you still have the enforcement problem, and then you
might have like dueling default. So you know, New York says, well,
we don't recognize that that you've issued that that declaration.

Speaker 5 (01:26:35):
We're not going to afforce that.

Speaker 3 (01:26:37):
That would they would get full faith in credit protection.

Speaker 4 (01:26:39):
Then that would be.

Speaker 3 (01:26:40):
That they could go to the Feds.

Speaker 9 (01:26:42):
Yeah, yes, sir, Jeremy Tellman from Oklahoma City University, I
had a question for Stephanie, and I'm uncertain about your
argument and the fact and the law, but I'll try so.
I think in the Indiana case, your argument that the
strict scrutiny, that that Indiana has a strict scrutiny, Sorry,

(01:27:07):
an interest that will survive strict scrutiny turns on Indiana
having determined that the state has a compelling interest in
the life of an unborn of a fetus. So I
thought that's an interesting I think it might be an
interesting situation in that some states have assert a compelling

(01:27:28):
interest in the life of a fetus and other states wouldn't.
Are there many cases like that where a compelling interest
would vary from state to state? And then also what
would be what would happen if, for whatever reason, Indiana
decides to change its policy because they haven't really thought
through all of the implications of basically recognizing fetal personhood

(01:27:51):
and they've decided, like, we need to back away, And
then what would become.

Speaker 4 (01:27:54):
Of your argument?

Speaker 5 (01:27:58):
Yeah, So just to clear if I'm I'm not saying
that Indiana gets to say we have a compelling interest
in this thing because we said so in our law.
So there it's the issue is the major premise or
one the Supreme Court has said that protecting a human
life is a compelling government interest, then the next premise

(01:28:19):
is and the Supreme Court has now said, after jobs
that states can define a human life as beginning at conception,
and Indiana has done that, so they have taken advantage
of that opportunity. They've now passed a law saying we
define human life as beginning with conception, with.

Speaker 6 (01:28:36):
Some minor exemptions.

Speaker 5 (01:28:39):
So I think one of your questions is what if
they change their mind, What if they decide that they
don't want to do that anymore. Also, do we have
situations where states don't enforce laws uniformly? I think the
answer to the question about changing your mind is states
do do that not infrequently. So in Holt versus Hobbes,

(01:29:06):
the prison in that case, I think it was Arkansas
had said that they just couldn't allow beards to be
offered to prisoners because there would be all sorts of
security issues and people could hide weapons in their beards
and it'd been bad. And after the Supreme Court did
say that this particular prisoner could have an exemption, they

(01:29:28):
just changed the policy across the board and said everybody
can have a beard. It doesn't have to be for
religious reasons. So the fact that a state can enforce
something and could have a compelling interest in something doesn't
mean that they must defend that compelling interest certainly doesn't
mean that they must defend it at all costs. So
think about states that allow for assisted suicide, like Oregon.

(01:29:53):
Lots of states don't do that. That doesn't mean that
Oregon couldn't still claim a compelling interest in defending human
life and other sorts of contexts. It doesn't mean that
because they allow for assisted suicide, they have forfeited their
right to defend human life anywhere else. Now, it might
be the case that if Oregon only protected human life
when it was Aztec religious sacrifice, and they didn't care

(01:30:16):
about human life anywhere else, and we'd say, I don't
know that. It seems like pretext, like you're pretty much
the wild West outside of that. And there have been
cases where it seems like the government is only regulating
an interest in one particular context that looks gerrymandered outside
of that context. We don't require states to advance a
compelling interest with perfect uniformity in order for it to
be a compelling interest. But if there's a lack of uniformity,

(01:30:38):
what Professor Laycock is argued and Rick and I argued
in Armicas Brief is the lack of uniformity sometimes and
often is evidence that there are ways that the government
can both advance the compelling interest and protect the First
Amendment right.

Speaker 6 (01:30:53):
And this is just one of the.

Speaker 5 (01:30:54):
Unique cases where the parties the planists have conceded there
is no less restrictive means for you to protect these
human lives. You have a compelling interest in protecting these
human lives. We have a religious exercise that would kill
these human lives, and so we have joined issue. There's
not any debate about whether there's another way to protect
those lives.

Speaker 7 (01:31:12):
Yeah, and I'd quickly add that I don't think what's
happening in Indiana's necessarily full blown personhood either, right, I mean,
having a compelling interest in protecting human life, I think
you probably should disaggregate from recognizing that particular human life
as a rights holding person in one context or another. So,

(01:31:35):
you know, I think one of the premises of the
question was, well, what if a state embraces fetal personhood
and has buyers remorse because of some unintended consequences. I
think it's important to say that the status of state
laws prohibiting abortion, even those that invoke interests in protecting
life from conception and sometimes with some sort of constitutional

(01:31:58):
adjacent language in their preambles are not clearly all personhood laws, right.
So that's one of the reasons, for example, that Alabama
has a state constitutional amendment that can be understood as
a personhood amendment, and it's precise enforcibility and in what
context is very much underdetermined. So I think if we're
trying to kind of get it where these laws are going,

(01:32:19):
it's it's important to sort of to disaggregate those things.

Speaker 3 (01:32:24):
It's a bundle of sticks.

Speaker 2 (01:32:25):
Professor Adler.

Speaker 10 (01:32:27):
Not a question about marijuana federalism, though happy to talk
about that. I have some questions about I guess, how
to think about preemption FDA premption in this context and
the way that might interact actually with things like standing.
So on the premption side. It seems most of the
focus thus far has been thinking about these questions just
in terms of pure FDA preemption. Why it's et cetera,

(01:32:49):
et cetera, mean for the sort of context. But it
seems there's a separate angle that states can take, which
is to say, we're not The issue is not can
we prohibit the sale of a product of a particular medication.
The question is in our exercise of our police power
to regulate the practice of medicine. Can we prohibit a
procedure and we don't care what it is you use

(01:33:09):
for that procedure because it's the procedure that's prohibited.

Speaker 2 (01:33:11):
Right, So, the.

Speaker 10 (01:33:15):
State's ability to regulate a medical procedure might not be
dependent upon its ability to prohibit the sale of the
instruments used for that procedure, because what it is prohibiting
is that aspect of the practice of medicine. So the
first question I guess is is that a pretty strong
argument around any concerns about FDA preemption of the state's

(01:33:35):
ability to prohibit SAE MiFi prestone. And then, if it is,
does that undercut state arguments for standing to challenge the
approval of MIFHI pristone, because it seems to me the
strongest arguments states can make as litigans. The China challenge
the FDA's approval of MEFI pristone is that they are
either directly or indirectly obligated to provide for MiFi pristone

(01:33:58):
through state insurance programs and the like. And I think
they would argue that even though MIFA perstone is less
expensive than live birth that they could arguably a certain
interests that are not about the amount of money expended.
But if the state has the ability to prevent the
use of that medication within its borders for that purpose,
then it has the ability to eliminate the injury that

(01:34:21):
it is complaining of. So I'm curious if folks have
thoughts about those two tentative observations.

Speaker 4 (01:34:27):
Yeah, I think the preemption argument is a tough one,
and I mean, I happen to agree with you.

Speaker 5 (01:34:32):
I think that.

Speaker 4 (01:34:35):
So my co authors and I've written pretty extensively about preemption,
trying to figure out is there an argument to make
for states for preemption on the behalf of the FDA
and in terms of creating either windows in which certain
uses of MIPH for pristone for certain conditions or through

(01:35:01):
certain mediums like telehealth, there is a preemption argument because
the FDA is acted or is there should there be
MiFi perstone act access according to the FDA's rims. And
I think the practice of I'll just be very candid.
I think the practice of medicine argument is a very

(01:35:22):
strong one and a very strong distinction, and I do
think it undercuts standing because I think that all states
that ban abortion are operating under the assumption that they
are not preempted from banning mefipristone and all medication abortion
whatever the means within their borders. I think that that,
you know, well, the cases that have chipped away at

(01:35:43):
that in in pieces, but I think that there is
kind of reverse logic there of what comes next if
that preemption does indeed exist and in fact it you know,
it really gets at the heart of some of the
Alliance litigation, where you know, you have, for instance, Rice,

(01:36:06):
you have another court that has said the kind of
mirror image of what the district court said in Alliance,
which is, you know, the rims are the rims, and
they freeze. We're not going to repeal them. We're not
going to kind of lift as a court rims that
we might agree are not necessary for safety or efficacy.

(01:36:30):
But the FDA is the FDA, and we'll we freeze
that regulation as it is. Well, that's that also cuts
forward against preemption arguments in really interesting ways. So long
winded answer to say, yes, and.

Speaker 8 (01:36:50):
If when all of the legal issues are resolved, it
turns out that New York is indeed free to mail
abortion drugs into texts. Does it also follow that Oregon
is free to male suicide kits into other states?

Speaker 3 (01:37:09):
I would think that the arguments are identical. That does
look which is which is why I mean to me,
that seems like a reductio.

Speaker 1 (01:37:17):
Yeah, anybody else any final thoughts from the panelists?

Speaker 2 (01:37:30):
Please join me in thinking our panel

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