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Brian Lehrer: Brian Lehrer on WNYC. You've been hearing about the Texas law that bans almost all abortions being tested at the Supreme Court yesterday. Texas is actually claiming that the Supreme Court of the United States does not have the authority to review the case. One of the issues is whether Texas wrote the law in a clever way designed to violate a constitutional right but somehow keep the federal court system from doing a constitutional review. Wow, if that's the case.

Next month, the Supreme Court will hear a challenge to Mississippi's very restrictive new abortion law. It's not just Texas testing the limits of Roe v. Wade this fall, with all three of Donald Trump's Supreme Court appointees now fully in place. Joining us now, a participant in these cases, Nancy Northup, president and CEO of the Center for Reproductive Rights. Nancy, thanks so much for coming on with us on this day after oral arguments, you're probably still catching your breath. Welcome to WNYC.

Nancy Northup: Thank you so much. I'm so glad we're covering this this morning. It's such an important case.

Brian Lehrer: I see the Center filed a brief in the Texas case, can you start by establishing for our listeners what your center's role has been in the case?

Nancy Northup: Yes. The Center for Reproductive Rights has been the lead counsel for a group of abortion providers and clergy and people who work at the clinics, and also part of a broader strategy, the Center for Reproductive Rights clients along with Planned Parenthood, clients represented by the ACLU, Loring project. We've got help from the law firm Morrison & Foerster. Is really a whole movement, litigation, to challenge what's happening in Texas. We however as lead counsel were in the Supreme Court yesterday.

Mark Herron, our attorney, was arguing to the court about what is so fundamentally wrong with what Texas has done, which is that it has enacted a law that flatly violates the Constitution. You can't ban abortion at six weeks, which is before many people know that they're pregnant, and then set up a system that evades review by not just the federal courts but also really effectively by the state courts.

They've done something they know would have been struck down in even a Texas Minute, as well as a New York Minute if they just banned abortion at six weeks. These had been struck down all over the country, but they tried to set up this scheme, which unfortunately has worked to date. The clinics have been observing the six-week ban since September the 1st with one little exception when there was an injunction in place for two days. It's really a high stakes in the Supreme Court with respect to the fact that right now Texans don't have their constitutional rights under Roe v. Wade.

Brian Lehrer: One version that I read of this attempt to ban judicial review, maybe this was on your side, I'm not even sure, I've read so many things, said the Texas law known as SB 8 explicitly forbids any officer or employee of a state or local government entity in Texas from enforcing it. Instead, it may only be enforced through private lawsuits. What does that even mean? A state law that imposes massive restrictions on people's lives can only be enforced by private lawsuits and why does that keep it out of court?

Nancy Northup: Yes. What Texas did here is indeed say, we're not going to enforce this, for example, by a criminal ban. What we're going to do is say that anybody in the world can sue, not just anybody in Texas, anyone in the world can sue, and if somebody has provided an abortion after six weeks, again, this is perfectly constitutional to do so. If someone has assisted, aided, and abetted a person, maybe you drove someone to the clinic, maybe you loaned a friend money, and the clergy in the case, because maybe you gave someone some non-directive counseling to support them.

If you've done any of those things, you could be sued anywhere in the State of Texas, you could be imposed a $10,000 bounty to be paid by, again, the provider, the person who drove the car, the friend, but that's only the minimum, the $10,000, it could be much more than that, and it's endless how many people can file these suits over one abortion. It has a chilling effect. That's why in Texas right now, you can't get an abortion after six weeks. It has chilled the provision of those services. This bounty hunter scheme is what Texas has used to say, "Hey, you can't sue us," but in fact, they've set it up so that it is very, very, very hard to get court review.

Brian Lehrer: There are no criminal provisions in that statute?

Nancy Northup: That's right. There aren't in the statute. Now, Texas has passed plenty of abortion restrictions with criminal provisions so they know how to do it. In fact, one of the justice's questions yesterday brought up the fact that, "Gosh, you're passing these other laws that you seem to do the straightforward thing of enforcing it by the State, how come here, you have this different process in place?"

They've obviously done it because it's so clearly unconstitutional. It's really an attempt, which, again, the justices had a lot of questions about the fact that it is the role of the federal courts to protect our fundamental constitutional rights, the federal constitution is supreme, to anything that a State might do. They can't just try to get around this by making it so so burdensome to defend against countless lawsuits.

Brian Lehrer: Yes. I'm no lawyer, but I don't think I've ever heard of this kind of thing before, a state law written to avoid even evaluation by the Supreme Court on whether it's constitutional. How novel a thing is Texas trying to do?

Nancy Northup: It is completely novel. That is what both in our case, which is the case of the providers and abortion advocates in Texas, but there's also a second case that was argued yesterday by the United States Government, which took the unprecedented step of suing Texas directly about an abortion restriction.

In both cases, what was really clear in the discussion in the court is this has never been done before, to try to set up this private vigilante scheme to escape court review. It's not just that it's the private vigilante scheme which would be enough in itself, they also changed all kinds of procedures just for this law in Texas courts. All kinds of things from being able to sue anywhere in the state, to saying that even if you win one of these cases, it's not precedent for another case. It has what we call, as lawyers, no preclusive effect, you can just keep suing the person even though they've won and established, it's a constitutional violation.

Brian Lehrer: What would the implications be for other constitutional rights if the Supreme Court upholds this scheme? Like could a State pass a law that violates your free speech rights or your gun rights but without criminal penalties, only enacting this right to civil suits with a vigilante provision, would all of those theoretically be allowed then?

Nancy Northup: Absolutely. In the Supreme Court argument yesterday, the State of Texas Solicitor General really conceded that this could be used as an attack on any disfavored constitutional right. In fact, [unintelligible 00:07:45] kept coming back to in the discussion with the justices that this is not limited to abortion, it could be used by any State that doesn't like a Supreme Court decision on a constitutional right.

The conversation even went to, I think it was Justice Roberts saying, "Well, what if it is $1 million, wasn't even a $10,000 bounty, it was $1 dollars, who's going to sue in a gun case or any kind of-- the Baker's case that went to the Supreme Court about LGBTQ rights and marriage equality and the Baker's religious freedoms, who's going to sue in any of those if you've got millions of dollars at issue?" The State of Texas basically said, "Yes, well, your choice is to go to the Congress and get legislation passed that says you can sue." A very extreme position.

Brian Lehrer: Right. Interestingly, it's the Political Right that generally rails against civil suits as making lawyers rich at the expense of the people that their clients are suing and that enabling a lot of civil suits with big awards is just a get-rich scheme for lawyers. We usually hear that from the Political Right. Here, obviously, the positions have been flipped. How do you think it went yesterday at the Supreme Court?

Nancy Northup: We were very heartened that the discussion in both cases really did center on how unusual this law is, the harm it is creating in Texas right now and that it has chilled clinics into enforcing a law that bans abortion at six weeks, which is clearly unconstitutional, real concern in the questions about the fact that this seems to have been designed to evade court review and the understanding that like States can't nullify Supreme Court decisions about constitutional rights in which they happen to disagree.

We've seen this in the history of the United States before when States attempted to nullify decisions by the Supreme Court, and it's not allowed. We felt very heartened that the real nugget of this case, which is that you cannot take a clearly constitutionally guaranteed right, like the right to abortion pre-viability, and then try to pass a law that is clever in evading court review of that right. We felt heartened that this was front and center in the Supreme Court argument yesterday.

Brian Lehrer: Now, listeners, we can take a few questions about yesterday's Texas Abortion case Supreme Court hearing for Nancy Northup, president and CEO of the Center for Reproductive Rights, a plaintiff in the case or representing plaintiffs in the case, 212-433-WNYC, 212-433-9692, or tweet your question @BrianLehrer. Nancy, what's the range of rulings the court could come down with after yesterday and how decisive could they be with respect to abortion rights in Texas themselves, not just this constitutional question of how laws can be written?

Nancy Northup: Well, the issue in front of the court yesterday in the hearing is this question, it's a procedural question about whether or not the abortion providers and supporters can sue and whether or not the United States Government can sue. The actual question about whether the precedent of Roe v. Wade, that ultimately you cannot take away the decision to have an abortion from a person prior to fetal viability.

That's not an issue right now in the Supreme Court in this case. It will be an issue on December the 1st, when we will be back in the Supreme Court arguing against Mississippi law that bans abortion at 15 weeks flat up trying to reverse Roe v. Wade, and that's what they've asked for.

I think the court could do here is to first of all and the United States has asked for an injunction to be put back in place. We asked yesterday for an injunction to send this back to the district court so that we can get back to the business of getting this law [unintelligible 00:11:56]. It's just for various reasons, gotten caught up in the US Court of Appeals for the Fifth Circuit, and we need to get back and get an injunction in place so that the provision of services can go forward in the State of Texas. Women are having to travel out of State to get services that are constitutionally guaranteed.

Brian Lehrer: How quickly do you expect a ruling, based on the answer you just gave, the timeliness of this is so important because people's actual lives are being so massively impacted as we speak?

Nancy Northup: Well, we hope for a very quick ruling, particularly on putting an injunction in place. They can always do that and then reserve the time to go ahead and deliberate on the decision. What we need is that injunction in place. I mean, the court heard briefing arguments with unusual speed in this case. We had 10 days from notification of the Supreme Court that they had taken review of this case to when our attorney had to stand up and argue it yesterday.

It hasn't been that fast as Bush v. Gore. They certainly are looking to move this with all good speed, and we are really hoping that they will provide some relief and allow Texans to get back to being able to have their rights enforced in that State.

Brian Lehrer: I want to get to some of the other legal aspects here and also to the Mississippi case you have coming up on abortion rights before the Supreme Court in a few weeks, but I also don't want to just talk about this case as a legal abstraction, like in a law school class, because as you've already described, it's affecting people's lives. What is the Center advising and how is anyone helping people seeking abortions who are living in Texas now so that they aren't forced by the State to carry pregnancies and go into labor and bear children?

Nancy Northup: Yes, I'm sure it was very, very frustrating for people listening to the argument yesterday for the reasons you're saying, it's all seems very technical, and what's really happening on the ground is so shocking. The clinics have been abiding by the law, and that means that basically with their patients, options that they can offer them is to refer them out of State, help connect them with, there are abortion funds in the State of Texas that help people cover the cost of abortion because unfortunately, it's not covered by programs like Medicaid, and so, that is also happening, but the reality is a lot of people cannot, they don't have the means.

They can't take the time off from work. Most people are parents, and they have childcare and work issues and all of that, they're waiting. As our client, Amy Hagstrom Miller of Whole Woman's Health talked about yesterday with the press, many of their patients are just waiting hoping for the court to intervene because it is too burdensome for them to leave the State of Texas.

Brian Lehrer: Now, the center, your Center for Reproductive Rights, was also a plaintiff in the 2016 Texas Abortion Case, widely considered a landmark in its own right, Whole Woman's Health v. Hellerstedt in which the Supreme Court upheld Roe and struck down that previous Texas attempt to severely limit a pregnant person's right to choose, that law would have required difficult-to-obtain admitting privileges at hospitals for abortion providers and strict physical structure guidelines for abortion clinics that most providing facilities can't meet, and you won in that case.

I wonder if you want to remind people more about that case, and I'm also curious how you think it informs what's happening in Texas's latest attempt to interfere in this right.

Nancy Northup: Yes. The 2016 Whole Woman's Health cases you summarized, eventually held that two provisions of Texas law, one that required admitting privileges at a local hospital, the court found not medically necessary, really designed to shut down the clinics. Another provision that abortions, even in the early weeks of pregnancy, had to be in ambulatory surgical centers, completely medically unnecessary, and that had a huge impact in shutting clinics.

The Supreme Court ruled with us, but the impact is the fact that these laws, some of them were allowed to be in effect for a number of years, and Texas lost half its clinics in that time, most of which have never reopened, and so, unfortunately, again, what the State of Texas is trying to do here is even if they know they might ultimately lose, they want to try to keep the clinics closed so that they really have to go out of practice and won't be able to reopen, lose their lease, their staff find other jobs and go elsewhere.

There's only been a handful of clinics that reopened after these unconstitutional laws that had caused them to close were struck down. That is the just tragedy of this, is that they're allowed to violate, which is why you need injunctions in place. They're violating the constitution in ways that even if they're ultimately proved to have done so by the court, it's too late.

Brian Lehrer: It's like how people get harassed out of their apartments. The law may prohibit it. The tenant might eventually win in court, but the harassing party has so much power that the tenant might move out anyway, worsen their housing situation, and they could win on paper, but they've lost in real life. You're saying that's happening with abortion rights in Texas?

Nancy Northup: Yes. I think that's a very good analogy.

Brian Lehrer: Allison in Manhattan, you're on WNYC with Nancy Northup from the Center for Reproductive Rights. Hi Allison.

Allison: Hi guys. Good morning. Let me just start by saying I'm so incensed and so incredibly angry about this. There was Trump and now there is this. As an American, I'm just disgusted, but can we just roll back for a second? My question is, it's maybe a silly question, but are Texans all in favor of this? I don't understand how it gets to this point. Is it a proposition or whatever? Excuse my ignorance, and then my second question is, let's say this does pass, can then New York say, "Oh, $10,000 bounty on anyone that has to do with selling a gun to anyone." Like make this into-- Do you know what I mean? Like we're getting you back with [crosstalk]

Brian Lehrer: Yes, and Nancy, you answered a version of that question before, but what would you say to Allison and also on the first part of her question, which is, "Yes, well, this was passed by the legislature in Texas," which indicates that in a majority of districts in Texas, that people are for this law, is that your understanding?

Nancy Northup: Well, we have so many legislatures around the country that pass massive restrictions on abortion that are not necessarily supported by the voters. Overall, 70% of people in the United States support access to abortion.

One in four women will actually have an abortion. That's true in the State of Texas is as it is elsewhere. I often say the poll that really matters is what people decide when it's their own life. To get to your other question, Allison, yes, you're totally, if this is upheld, States could also define other Supreme Court rulings such as their rulings on the Second Amendment and say, "Yes, we're just banning guns in the State of New York, $10,000 bounties."

In fact, a Gun Rights Organization filed a brief in the Supreme Court making that very point, and it's a real Gun Rights Group, and and the lawyers in that case are people who oppose abortion rights, but they're making the point that if they let this stand here, this could be just opening the flood gates to States nullifying Supreme Court decisions with which they disagree.

Brian Lehrer: Interesting. Now, Whole Woman's Health v. Hellerstedt, the case we were talking about a minute ago that you were involved in was in 2016. That was before Donald Trump got to appoint three Justices. Do you think of the current Supreme Court was in place then, that your Center for Reproductive Rights would have won that case?

Nancy Northup: Well, I don't want to speculate on that because we are arguing to every single justice in both this case but also in the case in Mississippi in December that the rule of law dictates that the court follow its prior decisions. What's interesting to note is that we also had a case in 2020 in the Supreme Court, it came out of the State of Louisiana, and in that case, Chief Justice Roberts who voted against us in the Whole Woman's Health case in 2016 voted for us in 2020. Why? Because of precedent. Because he was doing what the justices should do, which is follow the rule of law.

He disagreed with the decision in 2016, but in 2020, he said, "We've ruled on this very same issue of admitting privileges at local hospitals." The fact that it went up to the Supreme Court twice in four years on the same issue, and he said, "We need to follow it." We are looking here for the justices to follow-- I mean, 49 years of Supreme Court precedent on the right to abortion. It's really precedent on top of precedent because the court has fully reaffirmed in other cases the decision in Roe.

We're looking for every single one of these justices' votes to make sure that they are following the rule of law. If either this Texas scheme were allowed to go forward or they reverse Roe v. Wade in this case out of Mississippi, it is really going to undermine public confidence in what the judiciary should be doing, which is deciding constitutional cases and following them in the future when it comes to individual rights.

Brian Lehrer: 49 years, because Roe v. Wade was decided in January of 1973, almost another 30 years. 1992, I think, was the Planned Parenthood v. Casey Pennsylvania case where Roe was upheld, considered a very important reinforcing precedential case, then your case in 2016 in Texas. They would have to reverse a whole line of major Supreme Court rulings in order to really overturn Roe. We'll see if they have the stomach or even agree with the idea that they should do that, these Trump appointees.

This is WNYC FM HD and AM New York, WNJT FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are New York and New Jersey public radio. Few more minutes talking about the Texas abortion law at the Supreme Court yesterday with Nancy Northup, president and CEO of the Center for Reproductive Rights. Bob in Morningside Heights is calling in to say there are some other areas of the law where private citizens rather than the State have the right of enforcement. Bob, you're on WNYC. Thank you for calling in.

Bob: Hi, good morning. The environmental laws that are often pursued by individuals in the name of the public and then also whistleblower cases are-- just suggesting that that aspect of the Texas law is not necessarily so controversial, but I did have a question about another aspect of the law, which does seem to me relevant here, and that is case or controversy, which is usually federal plaintiffs would have to show a personal interest in the outcome of a case. I'm wondering if your guest could explain that and whether that came up in argument yesterday.

Brian Lehrer: Nancy. Yes, and I think you referred to that in passing before. Right? Somebody with no particular interest other than an ideological interest in protecting what they see as a baby, but with no personal stake, knowing the individuals or anything like that, they don't even have to be from the United States. You said before, could have the right to try to enforce the Texas abortion case with a civil suit. Right?

Nancy Northup: Yes, that's right. That's why, to answer your question, Bob, yes, there was a lot of discussion at the Supreme Court yesterday about the fact that this is so broad that that requirement that we have in the federal courts, that there be a case or controversy, they want to make sure that the parties are really opposed to each other and the judges aren't just rendering advisory opinions that that happens. That was discussed, it is a feature of the Texas law that it's basically conferring the ability for anybody to sue without any real adversity in the case.

I'd also if I could, just responding to the first part of it, what's different about this case I think from the ones that you have talked about is that this scheme is devised not to help the State enforce things in ways in which it's recognized that it's doing so, but really this is devised to avoid court review of a clearly unconstitutional action by the State. That's quite different than in environmental laws or in the [unintelligible 00:26:04] context that we talked about.

Brian Lehrer: We're just about out of time, but after the hearing yesterday on the Texas law, does come the one next month, I think it's December 1st, is that right?-

Nancy Northup: That's right.

Brian Lehrer: -On a Mississippi law designed to ban most abortions there. Your center is involved in that one too, right?

Nancy Northup: Oh, absolutely. We will be back before the court arguing on the 1st of December against this Mississippi law, which is a blatant attempt to upend longstanding precedent on the right to abortion. If I can just say quickly, the thing that's important there for people to note as in the Texas case, that it would affect other rights as well because the right of personal liberty that's protected in the abortion cases is one that is also protected in cases, for example, in marriage equality and cases around the use of contraception and other family decisions. It's not just a standalone case.

It goes back 50 years before Roe, is right to individual liberty around these personal decisions, and it extends 49 years past Roe so can't just pull one thread out of the fabric and not upend the rest of it.

Brian Lehrer: In brief, how is Mississippi trying to restrict abortion rights compared to Texas?

Nancy Northup: Well, they have banned abortion at 15 weeks, which again is far before the fetal viability line. That's what they have done, and they're just doing it as a straight-up criminal law.

Brian Lehrer: Nancy Northup, president and CEO of the Center for Reproductive Rights. Thanks so much for coming on with us today.

Nancy Northup: Thank you, Brian.

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