1 00:00:03,080 --> 00:00:08,280 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:09,119 --> 00:00:12,080 Speaker 1: The Supreme Court has raised the stakes in the politically 3 00:00:12,119 --> 00:00:16,440 Speaker 1: explosive fight over abortion rights. It's agreed to hear arguments 4 00:00:16,440 --> 00:00:19,119 Speaker 1: in a matter of weeks rather than months, over the 5 00:00:19,200 --> 00:00:23,919 Speaker 1: controversial Texas law that bans almost all abortions after six 6 00:00:24,000 --> 00:00:28,200 Speaker 1: weeks of pregnancy, before many women even know they're pregnant. 7 00:00:28,640 --> 00:00:30,800 Speaker 1: When she told me that I was measuring at ten 8 00:00:30,840 --> 00:00:37,760 Speaker 1: and a half weeks, I just cried. I was heartbroken 9 00:00:38,560 --> 00:00:44,879 Speaker 1: and terrified because I felt like the only option that 10 00:00:44,960 --> 00:00:48,600 Speaker 1: I knew I had. What's gone? This twenty one year 11 00:00:48,640 --> 00:00:52,800 Speaker 1: old Texas college student called more than thirty abortion clinics 12 00:00:52,800 --> 00:00:56,240 Speaker 1: in nearby states before finally getting an appointment at a 13 00:00:56,240 --> 00:00:59,800 Speaker 1: clinic in Mississippi. A predicament that Justice Sonia so to 14 00:00:59,880 --> 00:01:02,720 Speaker 1: my you are referred to in her partial descent. My 15 00:01:02,840 --> 00:01:06,399 Speaker 1: guest is constitutional law professor Leah Littman of the University 16 00:01:06,400 --> 00:01:10,120 Speaker 1: of Michigan Law School. Leah, the justices are going to 17 00:01:10,200 --> 00:01:17,440 Speaker 1: consider these two cases on an extraordinarily expedited basis briefing schedule, 18 00:01:17,640 --> 00:01:21,240 Speaker 1: culminating in oral arguments in just ten days. What does 19 00:01:21,280 --> 00:01:24,840 Speaker 1: that tell you. If anything, it's hard to read that 20 00:01:24,920 --> 00:01:27,959 Speaker 1: much into the decision to expedite the cases, given that 21 00:01:28,319 --> 00:01:31,720 Speaker 1: at the same time, the Court declined to disturb the 22 00:01:31,880 --> 00:01:35,640 Speaker 1: Fist Circuit opinion that had put on hold the injunction 23 00:01:35,880 --> 00:01:41,880 Speaker 1: against spate. That is, the Supreme Court declined to prevent 24 00:01:42,160 --> 00:01:46,679 Speaker 1: SPATE from being enforced while it was considering these cases. 25 00:01:47,160 --> 00:01:50,400 Speaker 1: So it doesn't appear to think that there's enough of 26 00:01:50,600 --> 00:01:54,680 Speaker 1: an emergency to require the courts to put spate on 27 00:01:54,800 --> 00:01:57,480 Speaker 1: hold while it considers the cases, but still enough of 28 00:01:57,520 --> 00:02:01,520 Speaker 1: an emergency to require the courts to expedite consideration of 29 00:02:01,560 --> 00:02:05,040 Speaker 1: these cases. So it's hard to read too much into 30 00:02:05,080 --> 00:02:07,880 Speaker 1: the Court's decision to grant the cases and hear them 31 00:02:07,920 --> 00:02:10,959 Speaker 1: on such a quick timeline. Do you orders arise out 32 00:02:10,960 --> 00:02:14,200 Speaker 1: of two cases? Tell us about the cases and the 33 00:02:14,400 --> 00:02:19,280 Speaker 1: different questions in them. So one case is by abortion providers, 34 00:02:19,320 --> 00:02:22,799 Speaker 1: and the abortion providers sought an injunction that would prevent 35 00:02:23,000 --> 00:02:26,600 Speaker 1: SPATE from being enforced. And the second case is filed 36 00:02:26,639 --> 00:02:29,440 Speaker 1: by the United States, and the United States also sought 37 00:02:29,440 --> 00:02:32,680 Speaker 1: to prevent SPATE from being enforced. But the differences in 38 00:02:32,680 --> 00:02:36,480 Speaker 1: the case arise because the United States, because it is 39 00:02:36,480 --> 00:02:40,360 Speaker 1: the federal government has the authority to do the State 40 00:02:40,440 --> 00:02:44,800 Speaker 1: of Texas. Private citizens like the abortion providers, however, do not, 41 00:02:45,200 --> 00:02:50,000 Speaker 1: and so the abortion providers had to identify particular state 42 00:02:50,040 --> 00:02:53,840 Speaker 1: officials who had some connection to the enforcement of the 43 00:02:53,919 --> 00:02:57,919 Speaker 1: law in their lawsuit, and the questions in the abortion 44 00:02:57,960 --> 00:03:02,640 Speaker 1: providers case are basically other. The officials that the providers 45 00:03:02,720 --> 00:03:06,120 Speaker 1: named have enough of connection to the enforcement of the law, 46 00:03:06,400 --> 00:03:09,560 Speaker 1: given that the state effectively tried to outsource enforcement of 47 00:03:09,600 --> 00:03:13,600 Speaker 1: the law to private citizens and avoid litigation. The questions 48 00:03:13,639 --> 00:03:17,200 Speaker 1: in the United States lawsuit, by contrast, concerned whether the 49 00:03:17,280 --> 00:03:21,480 Speaker 1: United States as an entity is injured by s P eight. 50 00:03:21,880 --> 00:03:24,560 Speaker 1: No one doubts that the providers, who were no longer 51 00:03:24,600 --> 00:03:27,640 Speaker 1: able to obtain abortions are injured by s P eight, 52 00:03:27,919 --> 00:03:31,320 Speaker 1: but Texases are doing that the United States isn't injured, 53 00:03:31,480 --> 00:03:35,600 Speaker 1: and that the United States doesn't have the legal authorization 54 00:03:35,720 --> 00:03:38,240 Speaker 1: to suit the United States last what's called a cause 55 00:03:38,280 --> 00:03:41,080 Speaker 1: of action. So those are some of the different questions 56 00:03:41,120 --> 00:03:43,920 Speaker 1: that are in play in the two different cases. This 57 00:03:44,040 --> 00:03:46,520 Speaker 1: was the second time the court refused to block the law. 58 00:03:46,960 --> 00:03:50,200 Speaker 1: How unusual is it for the court not to block 59 00:03:50,280 --> 00:03:54,120 Speaker 1: a law that's being challenged, and the Court is considering. 60 00:03:54,880 --> 00:03:59,960 Speaker 1: It really depends. I would say the practice is sometimes 61 00:04:00,040 --> 00:04:03,240 Speaker 1: aims not to block the law. But given that this 62 00:04:03,360 --> 00:04:09,680 Speaker 1: law is concededly unconstitutional and is preventing people from obtaining 63 00:04:09,720 --> 00:04:13,880 Speaker 1: abortions in clear and undisputed conflict with Row versus Wade, 64 00:04:14,320 --> 00:04:18,120 Speaker 1: it is unusual to not block the law, which again 65 00:04:18,240 --> 00:04:22,159 Speaker 1: Texas is barely even bothering to defend on the merits. 66 00:04:23,040 --> 00:04:29,080 Speaker 1: Some people have viewed that refusal as an indication that 67 00:04:29,120 --> 00:04:33,839 Speaker 1: there are five justices who are willing to uphold this law. 68 00:04:34,520 --> 00:04:37,359 Speaker 1: I think it's difficult to know what the Supreme Court 69 00:04:37,400 --> 00:04:39,440 Speaker 1: is going to do with it. I think there is 70 00:04:39,839 --> 00:04:43,279 Speaker 1: a possibility that the Supreme Court will say the United 71 00:04:43,320 --> 00:04:46,360 Speaker 1: States has authority to do states that it believes are 72 00:04:46,400 --> 00:04:51,919 Speaker 1: acting unconstitutionally and that have a thought to insulate themselves 73 00:04:51,960 --> 00:04:57,280 Speaker 1: from accountability to private citizens. But that doesn't necessarily mean 74 00:04:57,440 --> 00:05:02,400 Speaker 1: that the Supreme Court would then say SP eight is unconstitutional. 75 00:05:02,640 --> 00:05:06,240 Speaker 1: That is, ostensibly, the only questions that the Supreme Court 76 00:05:06,240 --> 00:05:09,760 Speaker 1: will be addressing in these cases is whether a federal 77 00:05:09,800 --> 00:05:14,920 Speaker 1: court can even decide whether SP eight is unconstitutional and 78 00:05:15,000 --> 00:05:18,160 Speaker 1: if so, enjoy the law. The Court is only addressing 79 00:05:18,440 --> 00:05:23,440 Speaker 1: threshold procedural questions about whether a court can decide if 80 00:05:23,640 --> 00:05:29,000 Speaker 1: SPI is constitutional. Justice Sonia so To Mayor called the 81 00:05:29,040 --> 00:05:34,680 Speaker 1: High Court's refusal to once again block the abortion law catastrophic. 82 00:05:35,120 --> 00:05:39,120 Speaker 1: Can you tell us about her partial descent? Absolutely so. 83 00:05:39,320 --> 00:05:43,000 Speaker 1: Justice Soto Mayor points out that SBA, by the time 84 00:05:43,080 --> 00:05:46,080 Speaker 1: the Supreme Court will have heard oral argument, will have 85 00:05:46,200 --> 00:05:50,040 Speaker 1: been in effect for two months. In that period of time, 86 00:05:50,200 --> 00:05:53,919 Speaker 1: there will be people who have become pregnant, won't know 87 00:05:54,040 --> 00:05:57,680 Speaker 1: they're pregnant, and will not have been able to obtain 88 00:05:57,839 --> 00:06:00,960 Speaker 1: and will not be able to obtain an abortion in 89 00:06:01,000 --> 00:06:04,159 Speaker 1: the state of Texas, given that this law has shut 90 00:06:04,240 --> 00:06:08,680 Speaker 1: down abortion more than six weeks after a person's last period. 91 00:06:09,160 --> 00:06:13,800 Speaker 1: Justice so Do Mayor also recounts the influx of patients 92 00:06:13,880 --> 00:06:17,599 Speaker 1: to clinics in other states, desperate patients who come to 93 00:06:17,720 --> 00:06:22,560 Speaker 1: abortion providers and doctors in tears seeking medical care that 94 00:06:22,680 --> 00:06:25,760 Speaker 1: doctors are unable to provide them, as well as the 95 00:06:25,800 --> 00:06:29,360 Speaker 1: individuals who, because of a variety of circumstances, are not 96 00:06:29,440 --> 00:06:32,360 Speaker 1: able to travel out of state to obtain an abortion care. 97 00:06:32,960 --> 00:06:37,400 Speaker 1: Those harms, Justice so Mayor says won't be remedied even 98 00:06:37,440 --> 00:06:42,320 Speaker 1: if the Supreme Court ultimately says a federal court can 99 00:06:42,520 --> 00:06:46,919 Speaker 1: enjoin SBA going forward. Was it unusual for the Court 100 00:06:47,000 --> 00:06:50,960 Speaker 1: to bypass the Appeals Court, which hasn't made a final 101 00:06:51,040 --> 00:06:56,960 Speaker 1: ruling here, So granting cirtari before a Court of Appeals 102 00:06:57,040 --> 00:07:00,840 Speaker 1: judgment is unusual, But the Supreme Court has done it 103 00:07:01,120 --> 00:07:04,839 Speaker 1: in the past. They did it in some cases involving 104 00:07:04,839 --> 00:07:09,600 Speaker 1: the Trump administration involving challenges to the census, and they 105 00:07:09,600 --> 00:07:12,880 Speaker 1: have previously done so in cases involving the sentencing guideline. 106 00:07:13,280 --> 00:07:17,160 Speaker 1: It is an atypical and not commonly used procedure, but 107 00:07:17,480 --> 00:07:20,760 Speaker 1: both the United States and the providers had requested the 108 00:07:20,760 --> 00:07:23,280 Speaker 1: Court to do so, in part because the Court of 109 00:07:23,320 --> 00:07:27,240 Speaker 1: Appeals had said, we're not going to allow an injunction 110 00:07:27,320 --> 00:07:30,040 Speaker 1: to be in place against this law. And they also 111 00:07:30,080 --> 00:07:34,200 Speaker 1: didn't seem to be in any particular hurry to ultimately 112 00:07:34,280 --> 00:07:38,200 Speaker 1: decide whether the law was constitutional. Theif Circuit hasn't set 113 00:07:38,320 --> 00:07:41,280 Speaker 1: argument in one of the cases even now, and it 114 00:07:41,360 --> 00:07:45,119 Speaker 1: didn't set argument in the other until December. So what's 115 00:07:45,200 --> 00:07:50,800 Speaker 1: your opinion of the argument here by the United States 116 00:07:50,880 --> 00:07:53,560 Speaker 1: and by the providers. Do you think they have a 117 00:07:53,560 --> 00:07:57,440 Speaker 1: good argument before the court? I think both the providers 118 00:07:57,520 --> 00:08:00,960 Speaker 1: and the United States are correct that they should be 119 00:08:01,040 --> 00:08:04,320 Speaker 1: allowed to have a federal court hear their claims. On 120 00:08:04,440 --> 00:08:10,200 Speaker 1: the Brits, the providers sued state court judges and state 121 00:08:10,240 --> 00:08:14,120 Speaker 1: court clerks asking a federal court to prevent state court 122 00:08:14,160 --> 00:08:18,760 Speaker 1: judges and clerks from docketing cases filed under SP eight. 123 00:08:19,200 --> 00:08:23,000 Speaker 1: The Supreme Court three decades ago said that federal courts 124 00:08:23,040 --> 00:08:28,120 Speaker 1: have the power to enjoin state judges who are acting unconstitutionally, 125 00:08:28,360 --> 00:08:32,000 Speaker 1: and so that question is kind of settled, and there's 126 00:08:32,040 --> 00:08:34,920 Speaker 1: no doubt that state court judges and clerks there's some 127 00:08:35,080 --> 00:08:39,040 Speaker 1: connection to what is happening to the providers and to 128 00:08:39,520 --> 00:08:42,600 Speaker 1: the law that is being challenged SB eight, because it's 129 00:08:42,640 --> 00:08:45,640 Speaker 1: only by virtue of the fact that these lawsuits can 130 00:08:45,640 --> 00:08:48,680 Speaker 1: be filed in state courts that abortion providers have been 131 00:08:48,800 --> 00:08:51,680 Speaker 1: chilled from providing abortions and are no longer able to 132 00:08:51,720 --> 00:08:55,160 Speaker 1: provide abortion care. I also think the United States is 133 00:08:55,200 --> 00:08:59,920 Speaker 1: correct that the United States has the authority to student 134 00:09:00,120 --> 00:09:04,600 Speaker 1: enjoy unconstitutional state action that is designed to evade judicial 135 00:09:04,640 --> 00:09:09,520 Speaker 1: review and has thus far successfully evaded judicial review and 136 00:09:09,600 --> 00:09:13,480 Speaker 1: attempts by individuals to enforce their constitutional rights. The United 137 00:09:13,480 --> 00:09:17,040 Speaker 1: States has an interest in securing the supremacy of federal law, 138 00:09:17,120 --> 00:09:21,560 Speaker 1: including the Constitution, and s P eight would also prevent 139 00:09:21,640 --> 00:09:26,359 Speaker 1: the federal government and federal officials and federal contractors from 140 00:09:26,400 --> 00:09:30,600 Speaker 1: assisting abortions that are permitted under a variety of federal programs. 141 00:09:30,640 --> 00:09:33,200 Speaker 1: So I think both the United States and the providers 142 00:09:33,240 --> 00:09:36,400 Speaker 1: have strong claims on their arguments. But that's not to 143 00:09:36,480 --> 00:09:38,920 Speaker 1: say the Supreme Court is necessarily going to agree with 144 00:09:38,960 --> 00:09:42,480 Speaker 1: either or both of them. What's the best argument that 145 00:09:42,720 --> 00:09:46,480 Speaker 1: the other side has Texas? I think that for the 146 00:09:46,520 --> 00:09:52,360 Speaker 1: abortion providers case, Texas's best argument is this law outsources 147 00:09:52,480 --> 00:09:57,240 Speaker 1: the enforcement to private citizens and therefore no state official 148 00:09:57,280 --> 00:10:00,800 Speaker 1: has any connection to the enforcement of the law. Um 149 00:10:00,880 --> 00:10:03,760 Speaker 1: And on the United States lawsuit, I think, you know, 150 00:10:03,800 --> 00:10:07,240 Speaker 1: the best argument is the injuries that the United States 151 00:10:07,280 --> 00:10:10,640 Speaker 1: are a thirting are injuries to the providers, not to 152 00:10:10,679 --> 00:10:13,960 Speaker 1: the United States. And that Congress, if it wanted to, 153 00:10:14,200 --> 00:10:16,280 Speaker 1: you know, could provide the United States with the cause 154 00:10:16,360 --> 00:10:19,840 Speaker 1: faction that it has not chosen to thus far. Sort 155 00:10:19,880 --> 00:10:24,640 Speaker 1: of what's overhanging this whole thing is that on December one, 156 00:10:25,040 --> 00:10:28,800 Speaker 1: the Justices are going to hear a Mississippi appeal in 157 00:10:28,840 --> 00:10:33,440 Speaker 1: which the justices are being asked directly to overrule Row 158 00:10:34,120 --> 00:10:37,240 Speaker 1: that Mississippi case. Is there any way it can be 159 00:10:37,280 --> 00:10:40,840 Speaker 1: approached by the justices without looking at the merits of 160 00:10:40,920 --> 00:10:44,960 Speaker 1: the law? Is there a procedural question there? In the 161 00:10:45,000 --> 00:10:49,199 Speaker 1: Mississippi case? There aren't procedural questions aside from the fact 162 00:10:49,240 --> 00:10:52,200 Speaker 1: that Mississippi has changed its argument from the time it 163 00:10:52,240 --> 00:10:54,599 Speaker 1: initially asked the Supreme Court to hear the case to 164 00:10:54,760 --> 00:10:59,479 Speaker 1: now um. But aside from that, there aren't really threshold 165 00:10:59,480 --> 00:11:03,079 Speaker 1: procedural arguments that are being raised at the Supreme Court. 166 00:11:03,520 --> 00:11:08,160 Speaker 1: Is the Court going to decide about Row in that case? Well, 167 00:11:08,240 --> 00:11:10,719 Speaker 1: it could. There's no doubt that the Supreme Court will 168 00:11:10,720 --> 00:11:13,840 Speaker 1: say something in the Mississippi case about the scope of 169 00:11:14,000 --> 00:11:18,800 Speaker 1: constitutional protection for abortion. Whether and to what extent it 170 00:11:19,000 --> 00:11:22,160 Speaker 1: is willing to admit that it is modifying Row versus 171 00:11:22,200 --> 00:11:27,439 Speaker 1: Wade is unclear. Public approval of the Court is at 172 00:11:27,440 --> 00:11:32,439 Speaker 1: a record law according to the latest Gallop Pole Supposedly, 173 00:11:32,600 --> 00:11:36,160 Speaker 1: justices don't consider that what public opinion is. But is 174 00:11:36,200 --> 00:11:40,400 Speaker 1: that something that some justices do consider and might consider here? 175 00:11:41,280 --> 00:11:44,319 Speaker 1: I think all of their behavior thus far indicates they 176 00:11:44,360 --> 00:11:48,640 Speaker 1: are aware of public views of the Supreme Court. We 177 00:11:48,720 --> 00:11:52,480 Speaker 1: have seen Several justices speak out publicly to defend the 178 00:11:52,520 --> 00:11:56,000 Speaker 1: Supreme Court as an institution against criticism that the Supreme 179 00:11:56,040 --> 00:11:59,440 Speaker 1: Court is partisan, including in the Texas supportion case. And 180 00:11:59,559 --> 00:12:02,559 Speaker 1: we saw Supreme Court decided to hear the Texas abortion 181 00:12:02,640 --> 00:12:05,960 Speaker 1: case on an expedited basis when they were criticized for 182 00:12:06,040 --> 00:12:09,240 Speaker 1: failing to do so two months ago. So I think 183 00:12:09,280 --> 00:12:13,120 Speaker 1: it's very likely the Supreme Court. Here's criticism of the 184 00:12:13,160 --> 00:12:16,520 Speaker 1: Court decisions and actions, and in at least some cases 185 00:12:16,640 --> 00:12:20,559 Speaker 1: sometimes they appear willing to modify their behavior in some ways. 186 00:12:21,400 --> 00:12:23,440 Speaker 1: But there's no telling what will happen in this case. 187 00:12:23,559 --> 00:12:26,480 Speaker 1: In the Mississippi case, oh, no, one has any idea, 188 00:12:26,559 --> 00:12:28,720 Speaker 1: And I think it would be unreasonable to hope that 189 00:12:28,760 --> 00:12:32,679 Speaker 1: the Supreme Court just says we adhere to Row versus Wade, 190 00:12:33,240 --> 00:12:36,760 Speaker 1: and every court that has looked at laws that prohibit 191 00:12:36,880 --> 00:12:41,240 Speaker 1: abortions before viability and say these laws are unconstitutional. Thanks 192 00:12:41,280 --> 00:12:43,880 Speaker 1: for being on the show, Leah. That's Professor LEA. Littman 193 00:12:43,920 --> 00:12:49,160 Speaker 1: of the University of Michigan Law School. Vaccine mandates from 194 00:12:49,200 --> 00:12:52,560 Speaker 1: employers and governments have been challenged in federal courts almost 195 00:12:52,679 --> 00:12:56,360 Speaker 1: forty times this year, but so far they've largely passed 196 00:12:56,440 --> 00:13:00,640 Speaker 1: legal muster, but there are conflicting court rulings about vaccine 197 00:13:00,640 --> 00:13:04,360 Speaker 1: mandates for healthcare workers. In Maine and New York. The 198 00:13:04,400 --> 00:13:07,600 Speaker 1: two states both tried to mandate the shot for healthcare 199 00:13:07,640 --> 00:13:10,679 Speaker 1: workers without giving them the option to bow out due 200 00:13:10,720 --> 00:13:14,640 Speaker 1: to their religious beliefs. In Maine, a federal judge allowed 201 00:13:14,640 --> 00:13:18,000 Speaker 1: the state to move forward without offering employees and exemption, 202 00:13:18,440 --> 00:13:21,360 Speaker 1: while in New York, a federal judge extended an order 203 00:13:21,440 --> 00:13:24,800 Speaker 1: that temporarily blocked the state from enforcing the mandate for 204 00:13:24,880 --> 00:13:29,520 Speaker 1: workers with religious exemptions. Joining me as employment lawyer Dominique Moran, 205 00:13:29,640 --> 00:13:33,760 Speaker 1: a partner at Farrell Fritz, are religious exemptions pretty much 206 00:13:33,880 --> 00:13:38,960 Speaker 1: the standard for COVID nineteen vaccine mandates. The question that 207 00:13:39,000 --> 00:13:43,040 Speaker 1: you ask sort of presupposes that a religious exemption is 208 00:13:43,120 --> 00:13:45,840 Speaker 1: the language that we're all using and the way we 209 00:13:45,880 --> 00:13:49,600 Speaker 1: want to evaluate it. There certainly is the standard that 210 00:13:49,720 --> 00:13:54,920 Speaker 1: in most policies there is a vaccine mandate that allows 211 00:13:55,040 --> 00:13:59,319 Speaker 1: for accommodations to be granted based on religion or medical reasons. 212 00:14:00,360 --> 00:14:04,560 Speaker 1: I distinguished between the words exemption and accommodation because I 213 00:14:04,600 --> 00:14:09,680 Speaker 1: think they're different. Explain why the word exemption suggests that 214 00:14:09,720 --> 00:14:12,600 Speaker 1: either you get vaccinated or you don't, and there's no 215 00:14:12,679 --> 00:14:18,440 Speaker 1: other obligation. Under the law, Title seven, which governs most employers, 216 00:14:19,240 --> 00:14:24,760 Speaker 1: requires that employers reasonably accommodate any sincerely held religious belief. 217 00:14:25,320 --> 00:14:31,520 Speaker 1: That reasonable accommodation may involve an employee not being required 218 00:14:31,560 --> 00:14:35,080 Speaker 1: to get the vaccine, but having to comply with any 219 00:14:35,160 --> 00:14:39,000 Speaker 1: number of other requirements so that the employer can ensure, 220 00:14:39,360 --> 00:14:42,280 Speaker 1: for example, the health and safety of its workforce. We 221 00:14:42,360 --> 00:14:45,120 Speaker 1: can use the word exemption. I just think it's important 222 00:14:45,160 --> 00:14:49,160 Speaker 1: to understand that an employer doesn't have to say you 223 00:14:49,240 --> 00:14:51,920 Speaker 1: don't have to be vaccinated, and that's the end of 224 00:14:51,960 --> 00:14:56,400 Speaker 1: the discussion. Critically important that everyone who's asking for some 225 00:14:56,480 --> 00:15:01,200 Speaker 1: sort of accommodation understand that's what they're asking or an accommodation, 226 00:15:01,760 --> 00:15:03,840 Speaker 1: not just that they don't have to comply with the 227 00:15:03,960 --> 00:15:09,920 Speaker 1: vaccine mandate. Six states main New York, Connecticut, West Virginia, Mississippi, 228 00:15:09,920 --> 00:15:14,920 Speaker 1: and California have vaccine mandates for healthcare workers without a 229 00:15:14,960 --> 00:15:18,360 Speaker 1: religious exemption. Why do you think those states frame the 230 00:15:18,400 --> 00:15:22,720 Speaker 1: mandates that way? In the interest of providing a healthy 231 00:15:22,920 --> 00:15:28,840 Speaker 1: and safe environment in healthcare settings, states wanted to demonstrate 232 00:15:28,920 --> 00:15:33,680 Speaker 1: the importance of having everyone vaccinated to reduce the risk 233 00:15:33,840 --> 00:15:37,600 Speaker 1: of spread of the virus. They did so in many 234 00:15:37,640 --> 00:15:43,480 Speaker 1: of those jurisdictions with very little advanced notice. And so 235 00:15:43,560 --> 00:15:48,640 Speaker 1: they've adopted this and candidly, it is challenging to evaluate 236 00:15:49,080 --> 00:15:53,680 Speaker 1: a sincerely held religious belief, so they've adopted those very 237 00:15:53,720 --> 00:15:56,960 Speaker 1: broad standards. In New York State, what we've seen is 238 00:15:57,040 --> 00:16:01,640 Speaker 1: that Judge Heard have already issued an injunction that does 239 00:16:01,720 --> 00:16:05,080 Speaker 1: not allow New York State to enforce that mandate without 240 00:16:05,120 --> 00:16:10,400 Speaker 1: a religious accommodation or exemption protocol. Let's sayn employees, as 241 00:16:10,440 --> 00:16:13,720 Speaker 1: they have a religious objection to a vaccine mandate. How 242 00:16:14,240 --> 00:16:17,960 Speaker 1: does an employer determine whether or not that is a 243 00:16:18,080 --> 00:16:22,480 Speaker 1: valid objection. So every employer should have a policy that 244 00:16:22,560 --> 00:16:26,360 Speaker 1: allows for the employee to raise that objection, preferably in writing. 245 00:16:26,800 --> 00:16:29,640 Speaker 1: And we want the employee to tell us what is 246 00:16:29,720 --> 00:16:33,440 Speaker 1: their religious objection. The employer then has to go back 247 00:16:33,480 --> 00:16:37,440 Speaker 1: and look at, okay, can we ascertain whether this is 248 00:16:37,480 --> 00:16:43,600 Speaker 1: a sincerely held religious objection? That analysis is challenging because 249 00:16:43,640 --> 00:16:46,920 Speaker 1: the law doesn't say that it has to be a 250 00:16:47,000 --> 00:16:51,320 Speaker 1: common religious objection. The law doesn't say that it has 251 00:16:51,360 --> 00:16:54,360 Speaker 1: to be a religious objection. That is sanctioned by a 252 00:16:54,440 --> 00:16:59,400 Speaker 1: specific church or by some religious official. So the absence 253 00:16:59,480 --> 00:17:03,600 Speaker 1: of agis official saying you can't get vaccinated is not 254 00:17:03,760 --> 00:17:07,680 Speaker 1: the standard. And that's important for employers because there are 255 00:17:07,800 --> 00:17:11,480 Speaker 1: some who I've looked at policies for clients in their 256 00:17:11,520 --> 00:17:15,040 Speaker 1: initial drafting, that's say, give us a letter from your 257 00:17:15,119 --> 00:17:19,639 Speaker 1: religious leader. That's not required, So we need something that 258 00:17:19,760 --> 00:17:23,320 Speaker 1: explains the religious objection. For employers, they're going to have 259 00:17:23,359 --> 00:17:28,120 Speaker 1: to evaluate that is it sincerely held? That's a difficult standard. 260 00:17:28,160 --> 00:17:32,120 Speaker 1: It requires some probing. For most employers, though, they are 261 00:17:32,200 --> 00:17:37,520 Speaker 1: going to quickly move beyond that question and assume it 262 00:17:37,680 --> 00:17:41,720 Speaker 1: is sincerely held and move on to can we accommodate? 263 00:17:41,920 --> 00:17:45,280 Speaker 1: Is there an accommodation that can be granted that achieves 264 00:17:45,400 --> 00:17:47,879 Speaker 1: the same goal, which is to provide a healthy and 265 00:17:47,960 --> 00:17:51,239 Speaker 1: safe workplace and reduce the spread of the virus. So 266 00:17:51,280 --> 00:17:54,879 Speaker 1: then do you think another reason that the States tried 267 00:17:54,960 --> 00:17:59,280 Speaker 1: to mandate a vaccine in this way was to avoid 268 00:17:59,560 --> 00:18:03,760 Speaker 1: the souls of having to figure out the religious accommodation. 269 00:18:04,440 --> 00:18:06,880 Speaker 1: I don't know that states we're looking to avoid the hassle. 270 00:18:07,040 --> 00:18:10,240 Speaker 1: I think states were motivated by wanting to get more 271 00:18:10,280 --> 00:18:16,639 Speaker 1: people vaccinated. So the vaccine mandate gave lots of reasons 272 00:18:16,880 --> 00:18:19,960 Speaker 1: for employees to say, I'm on the fence, but I'm 273 00:18:19,960 --> 00:18:23,399 Speaker 1: going to go get vaccinated because there's this mandate. I 274 00:18:23,440 --> 00:18:25,200 Speaker 1: don't want to call it a hassle, but it does 275 00:18:25,280 --> 00:18:28,520 Speaker 1: require an interactive process. That's what Title seven has been 276 00:18:28,560 --> 00:18:33,680 Speaker 1: requiring for years. And so employers have this obligation under 277 00:18:33,720 --> 00:18:37,760 Speaker 1: Title seven to go back and have an individual dialogue. 278 00:18:38,320 --> 00:18:43,160 Speaker 1: Is your religious belief sincerely held? Can it be accommodated 279 00:18:43,640 --> 00:18:48,320 Speaker 1: without putting others at risk of serious harm? So dominique 280 00:18:48,320 --> 00:18:52,840 Speaker 1: tell us about these conflicting court decisions. So what Judge 281 00:18:52,880 --> 00:18:56,560 Speaker 1: Heard said in New York was, wait a minute, the 282 00:18:56,800 --> 00:19:01,119 Speaker 1: standard that you've set for this mandate did vaccine with 283 00:19:01,320 --> 00:19:04,040 Speaker 1: no religious exemption. We're going to look at a few things. 284 00:19:04,040 --> 00:19:05,920 Speaker 1: And there were some facts in New York that are 285 00:19:05,920 --> 00:19:09,520 Speaker 1: a little different. The initial order that had been drafted 286 00:19:09,600 --> 00:19:14,360 Speaker 1: for health care facilities included the religious exemption, and so 287 00:19:14,560 --> 00:19:17,840 Speaker 1: Judge Heard looked at the original order and then a 288 00:19:17,880 --> 00:19:23,480 Speaker 1: subsequent order which excluded the religious exemption and said that 289 00:19:23,640 --> 00:19:28,840 Speaker 1: targets religious behavior. And under Title seven, where you have 290 00:19:29,080 --> 00:19:34,520 Speaker 1: this obligation to accommodate religion in the workplace, and under 291 00:19:34,640 --> 00:19:38,280 Speaker 1: the Constitution of the United States, if you're going to 292 00:19:38,280 --> 00:19:44,200 Speaker 1: target religious beliefs, and he viewed the move from having 293 00:19:44,200 --> 00:19:48,760 Speaker 1: a religious exemption to eliminating the religious exemption as targeting 294 00:19:49,000 --> 00:19:52,760 Speaker 1: religious behavior, then you have to meet a very high threshold. 295 00:19:53,240 --> 00:19:57,600 Speaker 1: And Judge Heard said, you can't meet that threshold because 296 00:19:57,600 --> 00:20:02,120 Speaker 1: you're providing an accommodation to those with disabilities. And if 297 00:20:02,200 --> 00:20:06,240 Speaker 1: that can make it safe, if providing accommodations to those 298 00:20:06,240 --> 00:20:09,560 Speaker 1: with medical disabilities can make it safe, New York State 299 00:20:09,600 --> 00:20:13,080 Speaker 1: had not adequately explained why they couldn't make it safe 300 00:20:13,760 --> 00:20:19,120 Speaker 1: for those with religious beliefs that prevented vaccination, So that's 301 00:20:19,119 --> 00:20:21,760 Speaker 1: a key difference. I also think we're looking at a 302 00:20:22,000 --> 00:20:26,520 Speaker 1: very complicated issue regarding state rights and federal rights, and 303 00:20:26,560 --> 00:20:28,919 Speaker 1: I think we can expect that an appeal court is 304 00:20:28,960 --> 00:20:31,239 Speaker 1: going to have to evaluate this issue in the end. 305 00:20:32,760 --> 00:20:37,000 Speaker 1: And let's talk about the Supreme Court, which hasn't addressed 306 00:20:37,200 --> 00:20:42,720 Speaker 1: this issue. This Supreme Court has tilted toward religious rights 307 00:20:42,800 --> 00:20:46,560 Speaker 1: over other rights. What's likely to happen if this reaches 308 00:20:46,560 --> 00:20:51,719 Speaker 1: the Supreme Court. The challenge with this issue generally is 309 00:20:51,760 --> 00:20:56,840 Speaker 1: that the state's compelling interest in getting people vaccinated is 310 00:20:56,880 --> 00:21:01,639 Speaker 1: based on a need to keep the public healthy and safe. 311 00:21:02,240 --> 00:21:06,440 Speaker 1: So the public health interest is the compelling interest. As 312 00:21:06,520 --> 00:21:09,959 Speaker 1: more people get vaccinated and as the rate of infection 313 00:21:10,080 --> 00:21:13,320 Speaker 1: comes down. The question of whether this gets to the 314 00:21:13,359 --> 00:21:16,439 Speaker 1: Supreme Court is the first thing that people are going 315 00:21:16,520 --> 00:21:19,720 Speaker 1: to grapple with. By the time that we get through 316 00:21:19,760 --> 00:21:23,600 Speaker 1: an appellate court and to the Supreme Court, will states 317 00:21:23,800 --> 00:21:27,280 Speaker 1: need a vaccine mandate to protect the public health or 318 00:21:27,320 --> 00:21:31,480 Speaker 1: will there be a sufficient number of people vaccinated such 319 00:21:31,520 --> 00:21:35,159 Speaker 1: as such that we don't need a mandate because the 320 00:21:35,320 --> 00:21:39,280 Speaker 1: risk has been reduced. When we get to the Supreme Court, 321 00:21:39,359 --> 00:21:42,719 Speaker 1: I think we are looking at fundamental constitutional issues. I 322 00:21:42,760 --> 00:21:46,480 Speaker 1: think we are looking at federal law and whether it 323 00:21:46,760 --> 00:21:51,000 Speaker 1: pre empts state law. So, in the ordinary course, the 324 00:21:51,040 --> 00:21:54,280 Speaker 1: general rule is when a federal law conflicts with the 325 00:21:54,359 --> 00:21:58,680 Speaker 1: state law, the federal law wins. It's called federal preemption. 326 00:21:59,280 --> 00:22:03,359 Speaker 1: The question will be in these jurisdictions, what is the 327 00:22:03,400 --> 00:22:07,000 Speaker 1: analysis Is there a conflict that sometimes there is a question, 328 00:22:07,480 --> 00:22:10,159 Speaker 1: and then if there is a conflict, does the federal 329 00:22:10,240 --> 00:22:14,400 Speaker 1: law win. Even with a conservative court, what we can 330 00:22:14,480 --> 00:22:19,520 Speaker 1: expect is that strict construction that federal law should preempt 331 00:22:19,600 --> 00:22:22,760 Speaker 1: state law, and then we can expect that they're going 332 00:22:22,840 --> 00:22:26,440 Speaker 1: to look at a strict scrutiny of these laws and 333 00:22:26,440 --> 00:22:30,520 Speaker 1: whether they are necessary to protect the compelling interest. Let's 334 00:22:30,520 --> 00:22:34,640 Speaker 1: talk about OSHA right now. OSHA is preparing a rule, 335 00:22:34,760 --> 00:22:38,080 Speaker 1: an emergency rule. So tell us what OSHA is doing, 336 00:22:38,280 --> 00:22:40,200 Speaker 1: and then we'll talk about the challenges that are likely 337 00:22:40,240 --> 00:22:44,080 Speaker 1: to come. Sure, so President Biden announced that there was 338 00:22:44,160 --> 00:22:47,480 Speaker 1: going to be a federal mandate that would come from 339 00:22:47,520 --> 00:22:52,040 Speaker 1: OSHA for employers of one hundred or more employees. That 340 00:22:52,119 --> 00:22:56,840 Speaker 1: mandate is supposed to include a vaccine or test mandate 341 00:22:56,960 --> 00:23:00,560 Speaker 1: for all employers with a hundred or more employees. That 342 00:23:00,680 --> 00:23:03,520 Speaker 1: rule is being prepared by OSHA. What we expect that 343 00:23:03,640 --> 00:23:09,280 Speaker 1: rule to include are conditions. How often does testing have 344 00:23:09,440 --> 00:23:13,840 Speaker 1: to take place, what kind of vaccine proof is required? 345 00:23:14,320 --> 00:23:17,879 Speaker 1: Who's going to bear the cost of both the vaccine 346 00:23:18,320 --> 00:23:22,240 Speaker 1: as well as the time to be vaccinated and the 347 00:23:22,400 --> 00:23:26,199 Speaker 1: testing if that is the alternative. So we're looking for 348 00:23:26,240 --> 00:23:29,040 Speaker 1: that rule to be finalized. That rule has been sent 349 00:23:29,119 --> 00:23:31,760 Speaker 1: to the Office of Management and Budget. That was done 350 00:23:31,800 --> 00:23:35,399 Speaker 1: on October twelve. They although they have a long time 351 00:23:35,520 --> 00:23:37,840 Speaker 1: to review the document, I want to say it's ninety 352 00:23:37,920 --> 00:23:41,119 Speaker 1: days we're expecting that a response is likely in the 353 00:23:41,160 --> 00:23:43,680 Speaker 1: next few weeks from the Office of Management and Budget. 354 00:23:44,000 --> 00:23:46,840 Speaker 1: Once the rule is approved, it can then be adopted. 355 00:23:46,880 --> 00:23:50,240 Speaker 1: It's likely to be a final interim rule, and then 356 00:23:50,320 --> 00:23:55,280 Speaker 1: we can expect a timeline for implementation. Many governors have 357 00:23:55,720 --> 00:23:58,719 Speaker 1: said that they're going to challenge the rule. They say that, 358 00:23:58,760 --> 00:24:01,880 Speaker 1: you know, they don't want their states to be subjected 359 00:24:01,960 --> 00:24:05,400 Speaker 1: to any federal rules. What's their challenge to the Osha 360 00:24:05,520 --> 00:24:10,760 Speaker 1: rule likely to be? Again, states can challenge it on 361 00:24:10,800 --> 00:24:15,840 Speaker 1: the ground that it's not necessary, that it's an overbroad mandate. 362 00:24:16,400 --> 00:24:19,399 Speaker 1: But there is this issue of federal preemption, and so 363 00:24:19,600 --> 00:24:23,040 Speaker 1: OSHA has the ability to set workplace rules for the 364 00:24:23,080 --> 00:24:26,800 Speaker 1: health and safety of employees. And in the case of 365 00:24:26,840 --> 00:24:30,000 Speaker 1: the Osha rule that we're likely to see there's a 366 00:24:30,160 --> 00:24:35,320 Speaker 1: built in alternative to vaccines. The built in alternative is testing, 367 00:24:35,760 --> 00:24:40,639 Speaker 1: which is likely to prevail if challenged because it's not 368 00:24:40,800 --> 00:24:44,520 Speaker 1: just a vaccine mandate, and so the argument the government 369 00:24:44,560 --> 00:24:46,840 Speaker 1: has to make the federal government has to make for 370 00:24:47,000 --> 00:24:52,080 Speaker 1: enforcement is an easier argument with that testing option. Let's 371 00:24:52,119 --> 00:24:55,400 Speaker 1: take Alabama for example. Everyone's talked about Texas. Let's talk 372 00:24:55,400 --> 00:24:59,520 Speaker 1: about Alabama, where the governor signed an executive order directing 373 00:24:59,640 --> 00:25:03,600 Speaker 1: stay executive branch agencies to comply with the Alabama Attorney 374 00:25:03,640 --> 00:25:07,920 Speaker 1: General's Office as it challenges the Biden administration's COVID nineteen 375 00:25:08,000 --> 00:25:11,320 Speaker 1: vaccine mandates. K I V Said, as long as I 376 00:25:11,359 --> 00:25:14,159 Speaker 1: am your governor, the state of Alabama will not force 377 00:25:14,240 --> 00:25:17,960 Speaker 1: anyone to take a COVID nineteen vaccine. So the state 378 00:25:17,960 --> 00:25:21,000 Speaker 1: of Alabama may not. But what happens you mentioned this 379 00:25:21,080 --> 00:25:25,919 Speaker 1: before when the federal government comes in and says, for example, 380 00:25:26,800 --> 00:25:31,159 Speaker 1: federal contractors, Because on December eight, the Biden administration's mandate 381 00:25:31,200 --> 00:25:34,920 Speaker 1: that all federal contractors be vaccinated will go into effect. 382 00:25:35,280 --> 00:25:38,320 Speaker 1: Can the governors of the states do anything about that? 383 00:25:39,000 --> 00:25:41,679 Speaker 1: The governors are going to have to challenge it in court. 384 00:25:41,800 --> 00:25:44,840 Speaker 1: That is already being challenged in Montana based on a 385 00:25:44,920 --> 00:25:48,720 Speaker 1: similar position. And so we are likely to see the 386 00:25:48,720 --> 00:25:52,560 Speaker 1: federal government defends lawsuits, and we are likely to see 387 00:25:52,560 --> 00:25:55,720 Speaker 1: federal judges have to grapple with this question of does 388 00:25:55,760 --> 00:26:01,360 Speaker 1: federal law preempt state law? And again at vaccine mandate 389 00:26:01,440 --> 00:26:06,720 Speaker 1: with no religious exemption, with no exemption for disabilities, that 390 00:26:06,920 --> 00:26:10,120 Speaker 1: is a much higher standard and it's going to get 391 00:26:10,240 --> 00:26:15,200 Speaker 1: strict scrutiny, So that question if it with no exemptions 392 00:26:15,280 --> 00:26:19,440 Speaker 1: for religious beliefs or for medical conditions, is a much 393 00:26:19,640 --> 00:26:23,119 Speaker 1: higher threshold. I think we are likely to see judges 394 00:26:23,240 --> 00:26:28,879 Speaker 1: look at those federal mandate from that perspective and address 395 00:26:28,960 --> 00:26:31,800 Speaker 1: the issue if they can, without ever getting to the 396 00:26:31,880 --> 00:26:34,920 Speaker 1: issue of preemption from the state law. You know, there's 397 00:26:34,960 --> 00:26:39,320 Speaker 1: a lot of confusion about vaccine mandates. We've had mandates 398 00:26:39,920 --> 00:26:43,040 Speaker 1: for years and years for school children to get into 399 00:26:43,080 --> 00:26:47,560 Speaker 1: school and for decades. Why do you think there's such 400 00:26:47,680 --> 00:26:55,240 Speaker 1: confusion and resistance to vaccine mandates today? Great question, And 401 00:26:55,480 --> 00:26:58,040 Speaker 1: one of the things we have to acknowledge is that 402 00:26:58,480 --> 00:27:03,120 Speaker 1: the vaccine mandate that have existed in schools have been 403 00:27:03,200 --> 00:27:07,080 Speaker 1: long standing. So there's lots of evidence, and there's lots 404 00:27:07,080 --> 00:27:10,560 Speaker 1: of views about the safety of those vaccines, and they're 405 00:27:10,560 --> 00:27:14,080 Speaker 1: all children. As we look at the COVID nineteen vaccine, 406 00:27:14,119 --> 00:27:18,400 Speaker 1: there are two significant differences. We're asking adults to be vaccinated, 407 00:27:18,480 --> 00:27:22,840 Speaker 1: and adults have much greater individual opinions about everything. But 408 00:27:22,920 --> 00:27:25,640 Speaker 1: the second one is the timing of the vaccine. This 409 00:27:25,720 --> 00:27:30,880 Speaker 1: is a relatively quick moment. The vaccine was developed and 410 00:27:31,000 --> 00:27:33,800 Speaker 1: rolled out in a very short window of time. Which 411 00:27:33,840 --> 00:27:39,080 Speaker 1: has led to some vaccine hesitancy. So the difference really 412 00:27:39,119 --> 00:27:42,600 Speaker 1: depends on those two qualities, how fast the vaccine has 413 00:27:42,640 --> 00:27:44,960 Speaker 1: been rolled out, as well as the fact that we're 414 00:27:45,000 --> 00:27:48,560 Speaker 1: asking adults to get vaccinated who may have very strongly 415 00:27:48,600 --> 00:27:51,280 Speaker 1: held beliefs. Thanks for being on the Bloomberg Law Show. 416 00:27:51,720 --> 00:27:55,240 Speaker 1: That's Dominique Moran. She's a partner at Farrell Fritz in 417 00:27:55,400 --> 00:27:57,920 Speaker 1: other legal and that's it this edition of the Bloomberg 418 00:27:58,000 --> 00:28:01,280 Speaker 1: Law Show. Remember you can always get the latest legal 419 00:28:01,280 --> 00:28:04,400 Speaker 1: news by listening to our Bloomberg podcast. You can find 420 00:28:04,440 --> 00:28:07,679 Speaker 1: them on Apple Podcasts, Spotify, or wherever you get your 421 00:28:07,680 --> 00:28:11,800 Speaker 1: favorite podcasts. I'm June Grasso and you're listening to Bloomberg