Colorado Attorney General Phil Weiser calls the most recent term of the U.S. Supreme Court “adventuresome,” “aggressive” and “destabilizing.”
Weiser, a Democrat who seeks reelection in November, points to three rulings: on abortion, gun laws and the role of the EPA in combating climate change.
Weiser vows to defend abortion access in Colorado, citing the passage earlier this year of The Reproductive Health Equity Act. “The fundamental point is we will defend the right to reproductive health care here in Colorado for Coloradans, for those coming to our state, and for doctors practicing medicine.” He told Colorado Matters he would go so far as to sue any local government in the state that restricted access.
Weiser says he is also braced for challenges to the state’s red flag gun law after justices struck down concealed-carry licensure in New York. “There are people who want to attack our gun safety protections, like our red flag law, and they will seek to use the latest Second Amendment decision as a source of their legal attacks.”
In an interview with Colorado Matters Senior Host Ryan Warner, Weiser also discussed how opioid settlement money can combat fentanyl addiction. Weiser’s Republican opponent, John Kellner, has also been invited.
The following has been edited for clarity and length.
Ryan Warner: Anti-abortion activists are looking for ways to prevent patients from crossing state lines to access care. Missouri, for instance, is considering a bill that would penalize organizations and doctors helping people travel out of state. Since Colorado stands out in the region for its access, what role do you see for yourself as attorney general?
Phil Weiser: Our role is on multiple fronts. The fundamental point is we will defend the right to reproductive health care here in Colorado for Coloradans, for those coming to our state, and for doctors practicing medicine. We are aware, as has been threatened, that some states may say, "We're not going to allow patients to travel. We'll criminalize that activity," or even try to criminalize doctors in Colorado. We will fight them all the way up to the Supreme Court. And I would note, Justice Brett Kavanaugh in his concurrence, underscored the interstate right to travel remains, and that patients have a right to access health care here in Colorado from wherever they come from.
Warner: Would you imagine your office representing a patient who had come from another state for an abortion here?
Weiser: Our role would not be representing the patient as their personal lawyer. Our role would be representing the state of Colorado's sovereign interests in reproductive health care, which means if there's litigation, we could get involved to defend Colorado's rights not to have interstate travel infringed. This is something we haven't seen before. It would be like Nebraska saying, "We're going to criminalize someone who goes to Colorado and buys and uses marijuana in Colorado." That's a legal activity in Colorado. That's the interstate right to travel.
Warner: Gov. Polis signed an executive order on abortion saying Colorado would not cooperate with criminal or civil investigations for actions that are fully legal in our state. Does it provide you, as a separately elected attorney general, the protection you're looking for?
Weiser: What it means when the governor has this executive order, it's a statement of policy, and my comments before and after that executive order underscore our alignment on this core policy. When someone accesses an abortion, because maybe it'll save their life, maybe they were raped, maybe the mental anguish of bearing a child against their will is too much, whatever the reason, that is protected in Colorado under our Reproductive Health Equity Act. My commitment is to enforce that law. The governor's commitment is to that law. We're aligned on that, and we recognize how important this is and we recognize how much trauma is going to be happening in other states where people don't have these rights.
Warner: What do you make of the fact that Colorado is becoming something of a safe haven in this regard? Certainly those who oppose abortion and who live here might think that's not what they want their state known for.
Weiser: Colorado, a few years ago, decided a question, whether or not to ban abortions after 22 weeks. 59% of Coloradans rejected that abortion ban and listened to the stories that were told during the course of that conversation. Our Legislature passed a Reproductive Health Equity Act, which makes it very clear that any local effort to curb a woman's right to choose violates Colorado law. That means my office and the state has an interest here that we have to enforce, even if that means taking a local government to court. If people in Colorado don't like any of that, they have elections. Those who are anti-choice could win elections, could try to change public policies.
Warner: You once clerked for the late Justice Ruth Bader Ginsburg. Given how this decision came down, do you wish she would have stepped down early?
Weiser: Because I had a personal relationship with her, it's hard for me to second guess her personal decisions. There are a lot of dynamics that contributed to this court being composed the way it is. One might think about Merrick Garland's putative appointment, possible appointment, that was scuttled in an unprecedented move. One might think about Amy Coney Barrett being rushed through in the last minute, in a move that was uncomfortable, to say the least. Justice Ginsburg's untimely death obviously is part of what got us here, but I have such respect for her that I have a hard time personally second-guessing her decisions.
What I will say about her legacy living on, she made a powerful point that stays with me. The right to an abortion and the right to terminate a pregnancy enables women to have control over their bodily autonomy, over their reproductive health system, and men don't have to confront that issue. If you force women to bear children against their will, they're in an unequal position. That problem from an equality standpoint, from a 14th Amendment equal protection standpoint, was her central argument. I believe that argument and her legacy will prevail even if she wasn't alive to defend it herself.
Warner: This is a good segue to what we heard or read from Justice Clarence Thomas in his concurring opinion, that other precedents like contraception, same-sex marriage, the ban on sodomy laws, should be up for reconsideration. Do you think Dobbs represents a threat to those decisions similarly based on this notion of substantive due process, right to privacy, 14th Amendment?
Weiser: Ryan, for anyone who reads the majority opinion, Thomas's warning is not hypothetical. It's “game on.” The logic of the opinion, the methodology used in the opinion, if applied, would have the results that Justice Thomas promises. I'll use Brett Kavanaugh as the example, because in Justice Kavanaugh's concurrence, he says, "Don't worry, those things aren't going to happen." The challenge is how do they square this circle? Because there's this argument, "Oh, abortion is not an enumerated right in the Constitution." Well, neither is contraception.
And then if you take this originalist idea, that rights are only as they were originally in the mind of those who passed the provision, protecting sexual orientation, protecting gender identity was not in the minds of the framers of the 14th Amendment. So marriage equality would also be on the chopping block.
This Supreme Court has put themselves on a path that would, as Justice Thomas predicted, naturally undermine a series of freedoms that have been established. Now, there are those concurrences by Justice Kavanaugh suggesting it's not going to happen. I'm going to be eager to see how The Court justifies not applying this methodology. And my view is the end game here will be to reaffirm Roe versus Wade, because I don't believe they can come up with a principle that protects contraception but doesn't protect abortion access.
Warner: Wait, what? You think that the court is going to reaffirm Roe?
Weiser: Not this court, but I believe that protecting reproductive rights is a basis of protecting equality, a basis of protecting bodily autonomy. It is inconsistent with the principles that we have relied on, control over your reproductive health system, to deny people this right. And when the American people are seeing the outcome of this, there's going to be a move to defend Roe. Now, how will this happen? Will it be a federal law that will get passed? Will it be a later Supreme Court? But I don't believe this project that this court launched, an attack on access to abortion, is sustainable, given what it's going to mean for people, given a whole series of issues like in-vitro fertilization or the use of an IUD. There's going to be a lot of disruption to people's lives. There's going to be a lot of legal uncertainty and litigation. And ultimately I believe the American people will stand up and ultimately their voice will be heard.
Warner: But isn't that what the Justices want? In other words, part of the argument here was that by making the Roe decision, The Court denied the people and the states the opportunity to decide this for themselves.
Weiser: I think you just made the point. If your principle is the Constitution and constitutional judging doesn't protect freedoms, then access to birth control, access to marriage equality, access to abortion should not be protected under the Constitution. If that is your argument, we're back to Justice Thomas's prediction. All of those rights would be rolled back.
My argument is ultimately that our constitutional rights bear a public function, which is they protect what the public wants to be protected. We saw Robert Bork, by the way, not get on the Supreme Court because he said out loud that he thought Griswold versus Connecticut, protections of contraception services and birth control, would not be protected in his view. Subsequent justices went ahead with what we now can see as shadow boxing, which is, "Oh, Roe versus Wade is settled law. There's nothing to worry about here." They get on the court and they then proceed to unsettle it. I know a lot of people are unsettled by that. I will just say that was the lesson that people took from Robert Bork, is we can't say it out loud. Justice Thomas absolutely in his concurrence said the quiet part out loud, which is, "We're going to overturn all these rights and freedoms." That is going to, I believe, have repercussions. And my prediction is the American people will not stand for that, and I for one will be fighting to protect all those rights and freedoms.
Warner: There were indeed other big decisions on climate policy, school prayer. Is there perhaps another ruling you think has a disproportionate effect on Colorado, and that you are planning to respond to in some way?
Weiser: One of the challenges, Ryan, with this court is we're seeing a work in progress that I would call judicial activism, which is a court destabilizing the current legal equilibrium. The Second Amendment is obviously on our minds after we continue to see horrific gun violence that no other nation sees. In Colorado, we have continued to pass gun safety measures– most recently a red flag law. There are people who want to attack our gun safety protections, like our red flag law, and they will seek to use the latest Second Amendment decision as a source of their legal attacks.
I'm going to defend gun safety protections, like our red flag law, like our background check law. I very much worry about the Supreme Court's activist trend right now, that the case you mentioned about climate and EPA was really breathtaking in withdrawing power from the EPA that the plain text of the Clean Air Act seems to provide. We're also in a case in the Supreme Court right now about the Clean Water Act, where Colorado relies on the EPA protecting clean water. We're advocating an approach to that issue that we believe is sensible and appropriate, but this Supreme Court has been incredibly ambitious and aggressive, and we've got to be prepared.
Warner: Is it speculation at this point, or do you have concrete evidence that people may want to use the New York gun ruling as a way to undermine the red flag law in Colorado?
Weiser: There has yet to be a case attacking our red flag law based on that new precedent, but here's the reality we've seen in Colorado: The gun safety measures like our magazine capacity limit have been attacked in court, and we know that. We have to defend those laws. We have to enforce those laws. The red flag law in Colorado, I believe, has been a real success. There's been reporting recently that a number of those counties that were skeptical about it, have in fact used it and have seen it as an effective law enforcement tool. We've been working to provide guidance on how to use it. I don't know for sure that we'll see an attack based on the Second Amendment, but we're going to be prepared.
Warner: You've used this phrase "judicial activism." It's something I hear across the political spectrum. Doesn't it just mean a ruling you disagree with?
Weiser: When I use the phrase “judicial activism,” I'm referring to a judicial decision that is adventuresome and aggressive beyond what is appropriate and necessary to decide the case at hand. In this Dobbs case, the Court reached well beyond what was before the court, the Mississippi law, and that's what Chief Justice Roberts hit hard in his concurrence. He made plain that the majority didn't need to go as far as it did – didn't have a record before them, didn't have a case before them. They wanted to go ahead and strike down all restrictions. And that type of aggressive conduct was also at issue in this EPA case, where there's not even a regulation before the Court, but the Court wanted to go out of its way to say the EPA lacked this power. Usually courts make their best decisions one case at a time, looking at the case before them, thinking hard and rigorously about what are the practical consequences. But sometimes courts may have an ideological commitment to a certain result and they skip right over that, because they know where they're going and are less attuned to the specifics before them.
Warner: I'd like to talk about opioid settlements. Colorado is set to receive $3 million, I think it is, from Mallinckrodt Pharmaceuticals in addition to $400 million from a settlement with AmerisourceBergen, Cardinal Health, McKesson and Johnson & Johnson. Do you imagine that money helping combat fentanyl addiction? And if so, how?
Weiser: We are in the third wave of an opioid crisis. The first wave was prescription pills. People got addicted. There's all sorts of painful stories behind it. The second wave was heroin. Cartels in Mexico, particularly, realized there was a population who were now addicted and that they could say, "Hey, go to heroin. It's cheaper than getting prescription pills." We're in the third wave right now. They're counterfeit pills, in many cases, that are based with fentanyl. And you have different populations. Those who are struggling with addiction who go to these pills, or those people who don't even know that they're getting fentanyl. They may think it's a real oxycodone pill, but it's actually fentanyl.
With this money, we can have more education and awareness to save lives. “One pill can kill” is a message everyone needs to understand. And these pills are being marketed in all sorts of ways to make them attractive to kids. Our office will do a study about the abuse of social media platforms to traffic these pills. We also want this money to provide more drug treatment recovery, because those who are struggling with addiction and getting fentanyl knowing it's fentanyl, are playing Russian roulette. There are people dying today, struggling with addiction, on waitlists because they haven't gotten the treatment they need.
The money we're getting out won't be enough to get us all the treatment we need. We have, estimates vary, 25ish percent of the total treatment we need, but we need a lot more treatment because right now too many people are dying. Too many people are in jail because they're struggling with addiction.
Warner: I just want to put a finer point on something you said. You draw a line between fentanyl addiction today and the calculated overprescription of opioids years ago.
Weiser: Yes. It's very important to note this. If you trace back individual cases, you will hear stories. "I had back pain. I was prescribed these opioids. I took them for 90 days. I became addicted. But my doctor cut me off. I got prescription pills illegally through some other channel, but it was expensive. It was just cheaper to get heroin." Today if you're buying heroin, chances are it's actually fentanyl because that's what the cartels are now shipping, this potent fentanyl drug. And so there are people today who are using fentanyl whose addiction started with prescription pills.
Warner: I note that a federal judge in West Virginia has sided with three drug makers in a lawsuit over the opioid crisis. In this ruling, the judge says, "The conduct of the companies could not be connected to the harm." I suppose that could affect some future settlements, cases.
Weiser: We've locked in a lot of settlement funds already, so this litigation is not directly bearing on the money we're getting. The idea that drug companies, take Johnson & Johnson, for example, or Purdue Pharma, didn't know what they're doing is just wrong. We led this case against McKinsey and one of the conditions of the settlement was McKinsey releasing documents of “how did we get here?” The New York Times recently reported from the documents that we mandated be disclosed, and they told the story that McKinsey and Purdue Pharma knew what they were doing. They were pushing out drugs, knowing that there were efforts to curb their distribution, but they were worried about profits, not about people. That's why we've held these companies accountable. And those companies who put their profits, particularly short-term profits, over people's lives, that's just wrong and we will continue to hold them accountable.
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