WEBVTT - Dueling Rulings on the Abortion Pill 0:00:03.080 --> 0:00:08.280 You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:10.440 --> 0:00:13.840 For the first time. On Friday, a court overrule the 0:00:13.920 --> 0:00:18.120 FDA's decade old approval of a drug. Texas Federal Judge 0:00:18.160 --> 0:00:21.720 Matthew kis Merrick blocked the FDA's approval of the abortion 0:00:21.800 --> 0:00:26.319 drug miffipristone, a medication approved twenty three years ago and 0:00:26.560 --> 0:00:29.480 used in more than half of abortions. Health and Human 0:00:29.520 --> 0:00:34.080 Services Secretary Javier Bassa said the judge's decision turns the 0:00:34.159 --> 0:00:38.920 FDA approval process upside down. One judge in one court 0:00:39.320 --> 0:00:43.320 in one state turned upside down the FDA's approval process 0:00:43.360 --> 0:00:47.680 for safe and effective medications. First and foremost, when you 0:00:47.800 --> 0:00:51.519 turn upside down the entire FDA approval process, you're not 0:00:51.560 --> 0:00:55.200 talking about just miffipristone. You're talking about every kind of drug. 0:00:55.240 --> 0:00:58.440 You're talking about our vaccines, you're talking about insulin, You're 0:00:58.440 --> 0:01:01.080 talking about the new alsheim drugs that may come on. 0:01:01.400 --> 0:01:05.800 If a judge decides to substitute his preference, his personal opinion, 0:01:06.160 --> 0:01:09.760 for that of scientists and medical professionals, what drug is 0:01:09.800 --> 0:01:12.640 it subject to some kind of legal challenge, So we 0:01:12.680 --> 0:01:15.200 have to go to court, and for America's sake and 0:01:15.200 --> 0:01:18.360 for women's sake, we have to we have to prevail 0:01:18.400 --> 0:01:22.039 on this. But in a legal twist, within an hour 0:01:22.080 --> 0:01:26.559 of Cosmeric's decision, a federal judge in Washington State, Thomas Rice, 0:01:27.040 --> 0:01:31.080 issued a contrary decision, ordering the FDA to preserve the 0:01:31.160 --> 0:01:34.840 status quo and retain access to miff apristone in the 0:01:34.959 --> 0:01:38.839 seventeen Blue states and DC that had sued there. Johnny 0:01:38.880 --> 0:01:42.080 Me is an expert in the area of reproductive legal rights. 0:01:42.120 --> 0:01:46.120 Mary Ziegler a professor at UC Davis Law School. So 0:01:46.360 --> 0:01:50.880 why is he second guessing the FDA's decision two decades ago? 0:01:51.120 --> 0:01:55.280 Tell us what his reasoning is. Well, he has two reasons. 0:01:55.360 --> 0:01:58.960 One is the Kumstock Act, which is the federal law 0:01:59.040 --> 0:02:01.320 Passion eighteen of any three that no one's really thought 0:02:01.320 --> 0:02:04.680 about in a long time, actually fars the mailing of 0:02:04.800 --> 0:02:09.600 missa pristone. He's, you know, ignoring the kind of dominant 0:02:09.639 --> 0:02:12.880 interpretation of the Comstock Act and any kind of constitutional 0:02:13.200 --> 0:02:15.720 concerns that reviving it would have and basically saying it's 0:02:15.720 --> 0:02:20.680 a plain text should apply. He's also arguing that the 0:02:20.800 --> 0:02:25.359 FDA lacked the authority to approve mitho pristone. He's sort of, 0:02:25.680 --> 0:02:28.400 I would say, kind of changing the narrative about how 0:02:28.440 --> 0:02:31.280 the approval of missa pristone went. He's suggesting the FDA 0:02:31.360 --> 0:02:34.480 kind of rushed it through under this regulation called Subpart 0:02:34.680 --> 0:02:38.239 H and made what he sees as unforgivable errors, and 0:02:38.400 --> 0:02:41.639 how it viewed miso pristone, for example, by relying on 0:02:41.680 --> 0:02:45.680 the idea that pregnancy was disease, which tess merit doesn't 0:02:45.680 --> 0:02:48.160 think is true. If if that sounds like it's an 0:02:48.160 --> 0:02:51.200 extremely broad opinion, it's because it is. I mean, he's 0:02:51.680 --> 0:02:53.880 reaching a lot of issues and paying a lot of 0:02:53.880 --> 0:02:57.680 things that wouldn't be strictly necessary to resolve the case. 0:02:57.720 --> 0:03:00.280 So this was not someone trying to avoid creating as 0:03:00.360 --> 0:03:02.920 if anything kind of the opposite. How does he deal 0:03:02.960 --> 0:03:06.360 with the fact that How does Judge Kesmer deal with 0:03:06.400 --> 0:03:10.880 the fact that miffopristone has been shown to be safer 0:03:10.919 --> 0:03:15.840 than some common low risk prescription drugs like penicillin. The 0:03:16.000 --> 0:03:19.799 death rate for this drug is point zero zero zero 0:03:19.960 --> 0:03:24.440 five percent. He just doesn't accept that as a fact, right, 0:03:24.480 --> 0:03:27.760 I mean? In his analysis of standing, for example, he 0:03:28.240 --> 0:03:31.480 explains why the Alliance for Hippocratic medicine, which really doesn't 0:03:31.520 --> 0:03:34.520 say much about treating patients who've had these injuries. There 0:03:34.520 --> 0:03:36.839 are a few passages, but not many. He essentially says 0:03:36.880 --> 0:03:39.960 the reasons why women are not there themselves just because 0:03:39.960 --> 0:03:45.040 they've suffered so much regret and depression and suicidal ideation. 0:03:45.560 --> 0:03:48.640 He mentioned towards the end of the opinion people dying 0:03:48.720 --> 0:03:52.320 from having taken Miffo pristone this year, So he's getting 0:03:52.320 --> 0:03:55.440 more or less accepted the facts is presented to him 0:03:55.480 --> 0:03:59.080 by the Alliance for Hyppocratic Medicine, even if those are not, 0:03:59.440 --> 0:04:02.800 you know, the facts that scientists accept the American Medical 0:04:02.800 --> 0:04:06.640 Association accepts, as the American College of Centersins and Gynecologist success. 0:04:06.800 --> 0:04:09.440 He's sort of living in a different universe when it 0:04:09.480 --> 0:04:11.560 comes to how myth of us don't actually work. Is 0:04:11.600 --> 0:04:17.080 he also using the language of anti abortion activists, like 0:04:17.240 --> 0:04:21.400 talking about the fetus as an unborn human. Yeah, he is. 0:04:21.480 --> 0:04:24.200 He cites, I mean the studies I mentioned about post 0:04:24.200 --> 0:04:26.920 abortion regret were done by an anti abortion activist named 0:04:26.960 --> 0:04:31.000 David Reardon. He refers to doctors to perform abortions as abortionist. 0:04:31.160 --> 0:04:33.920 He refers to people who's kind aborships as post abortive. 0:04:34.160 --> 0:04:38.520 He calls fetus's unborn children or unborn humans. He picks 0:04:38.600 --> 0:04:40.360 up on the idea that's the only kind of benefits 0:04:40.360 --> 0:04:43.600 of abortion access are sort of eugenic. He describes, you know, 0:04:43.680 --> 0:04:46.840 the effort to create uber mentioned with his terms. So 0:04:47.120 --> 0:04:50.640 there's a lot of rhetoric that draws directly from anti 0:04:50.640 --> 0:04:56.240 abortion materials. Also, on Friday, within an hour of this decision, 0:04:56.800 --> 0:05:01.760 federal Judge Thomas Rice in Why Shehington, issued a preliminary 0:05:01.920 --> 0:05:05.719 order blocking the FDA from making any changes to the 0:05:05.839 --> 0:05:09.159 current availability of mif A press Stone. I take it 0:05:09.240 --> 0:05:13.040 this wasn't just coincidence. No, no, probably not. I mean, 0:05:13.080 --> 0:05:15.839 obviously I haven't you know, spoken to Judge Rice. But 0:05:16.040 --> 0:05:17.839 I take it that it was not a coincidence, and 0:05:17.880 --> 0:05:20.560 that this was designed to force the appellate courts to 0:05:21.320 --> 0:05:23.719 give some clarity of sooner other than later, to the 0:05:23.760 --> 0:05:26.960 SBA about what it should be doing. Judge Rice's ruling 0:05:26.960 --> 0:05:30.719 applies to the seventeen states that sued. So what's the 0:05:30.839 --> 0:05:35.920 situation in those states with this conflicting ruling? I mean, 0:05:35.920 --> 0:05:40.000 which judges order applies? Well, I mean the answer is, 0:05:40.200 --> 0:05:42.400 you know, arguably both, right, So I mean I think 0:05:42.400 --> 0:05:44.680 that the question really is how through the FBA do 0:05:44.720 --> 0:05:47.799 you try to square that circle? And best answer seems 0:05:47.839 --> 0:05:50.760 to be that the FDA, using its discretion as to 0:05:50.839 --> 0:05:54.920 how to enforce, you know, orders regarding drugs that are unapproved, 0:05:54.920 --> 0:05:58.960 it should just leave the status quo alone until there's 0:05:59.000 --> 0:06:01.760 clarity prominent felt because you know, even if a drug 0:06:01.839 --> 0:06:05.159 is unapproved, the FDA has some discretion about how vigorously 0:06:05.160 --> 0:06:09.200 it pursues people who are dispensing, prescribing it, etc. And 0:06:09.320 --> 0:06:12.200 given that the FDA here is under directly deplipting orders, 0:06:12.240 --> 0:06:14.360 it would be weird for the FBA to take an 0:06:14.360 --> 0:06:18.320 aggressive position in enforcing Judge Chestmeric's order. And I mean, 0:06:18.320 --> 0:06:21.400 obviously just it's worth saying to Judge Chestmeric's order has 0:06:21.440 --> 0:06:24.320 been kind of paused for seven days pending an appeal, 0:06:24.400 --> 0:06:26.479 So at the moment that you even that isn't really 0:06:26.480 --> 0:06:28.960 an issue. But when it becomes on, we'd expect to 0:06:29.000 --> 0:06:32.479 see the FBA argue that the best way it can 0:06:32.600 --> 0:06:36.239 follow both orders is to wait to do anything until 0:06:36.240 --> 0:06:39.120 it gets clarity from the US Supreme Court. So the 0:06:39.240 --> 0:06:42.080 Biden administration is going to ask the Fifth Circuit for 0:06:42.120 --> 0:06:46.280 an emergency stay in your opinion. How likely is it 0:06:46.400 --> 0:06:49.280 that they'll get that? It's hard to stay right. I mean, 0:06:49.320 --> 0:06:52.560 we know that the Fifth Circuit is very conservative, and 0:06:52.640 --> 0:06:56.600 I think the question really is whether there's any bridge 0:06:56.640 --> 0:06:59.720 too far for the Fifth Circuit or the US Supreme Court. 0:07:00.080 --> 0:07:03.679 I think, you know, Chessmeric's ruling in several steps beyond 0:07:04.120 --> 0:07:07.760 the decision to reverse Rovway. For example, the Court and 0:07:07.839 --> 0:07:10.680 Doobs said, you know, emphatically over and over again that 0:07:10.720 --> 0:07:13.600 this was about giving the aborshion issue back to the people. 0:07:13.680 --> 0:07:16.360 And of course Judge Chessmeric's ruling is about taking the 0:07:16.360 --> 0:07:19.200 a worshion issue away from the people. So I think 0:07:19.440 --> 0:07:22.160 also there's been some irony and the fact that there's 0:07:22.160 --> 0:07:25.480 so much second guessing of scientific authority by Judge Kasmeric 0:07:25.560 --> 0:07:28.720 when many conservatives just event decades criticizing the Rowe Court 0:07:28.800 --> 0:07:32.560 for converting, you know, judges into medical review boards. So 0:07:32.920 --> 0:07:35.400 there's some chance that the Fifth Circuit or the US 0:07:35.440 --> 0:07:38.720 Supreme Court will see this as different from what's come before, 0:07:38.840 --> 0:07:41.240 or too far too fast. But I think again, when 0:07:41.240 --> 0:07:43.480 you're looking at who's on the Fifth Circuit, who's on 0:07:43.520 --> 0:07:45.960 the US Supreme Court, you certainly can't rule out the 0:07:46.000 --> 0:07:48.640 possibility that they'll sign off on what Chests America is doing, 0:07:48.720 --> 0:07:52.760 or at least significant parts of it. An emergency petition 0:07:52.960 --> 0:07:56.680 from the Fifth Circuit would initially go to Justice Samuel Alito, 0:07:56.880 --> 0:08:01.120 who wrote the decision overturning Roe v. Wade. Is he 0:08:01.200 --> 0:08:04.000 likely to decide that himself will refer to the whole Court? 0:08:04.320 --> 0:08:06.440 I would hope you would refer to the full Court, 0:08:06.720 --> 0:08:10.000 given that you know, you have clashing district court rulings 0:08:10.000 --> 0:08:14.080 on matters of national import Again, you know this Supreme 0:08:14.080 --> 0:08:16.680 Court has not behaved like all the others before it. 0:08:16.760 --> 0:08:18.880 But again, I mean I would hope that this issue 0:08:18.880 --> 0:08:22.280 would be of national enough significance that Justice Alito would 0:08:22.320 --> 0:08:25.440 refer it to the Full Court. The thing about this 0:08:25.640 --> 0:08:29.040 ruling is it's not just a bad abortion, but it 0:08:29.160 --> 0:08:34.280 undermines the authority of the FDA. It puts pharmaceutical companies 0:08:34.520 --> 0:08:38.480 in a bad situation. So is it likely to get 0:08:38.520 --> 0:08:41.280 to the Supreme Court? Well, I mean, we can't live 0:08:41.280 --> 0:08:43.080 in a world where the SBA is told to do 0:08:43.280 --> 0:08:46.280 contradictory things on a drug of national significance in a 0:08:46.360 --> 0:08:51.040 major cultural war issue that is untenable, and so sooner 0:08:51.120 --> 0:08:53.360 or later, the US Supreme Court is going to have 0:08:53.480 --> 0:08:57.120 to intervene to just settle what the FDA is supposed 0:08:57.120 --> 0:09:00.440 to do. We've talked before, and you've mentioned and now 0:09:00.520 --> 0:09:04.439 how conservative this court is. If they follow what they 0:09:04.520 --> 0:09:07.800 said in Dabbs, I'd take it they would reverse Judge 0:09:07.880 --> 0:09:10.240 kiz Americ. But we never know if they're going to 0:09:10.360 --> 0:09:14.280 follow what they say or not anymore rights, And I 0:09:14.320 --> 0:09:17.520 think in some ways that's why the Alliance Defending Freedom 0:09:17.880 --> 0:09:21.959 filed this too, right, because the possibilities that are imaginable 0:09:22.000 --> 0:09:25.880 in the US Supreme Court are unimaginable in democratic politics. Right. 0:09:25.920 --> 0:09:27.880 I mean, if you were asking, could you achieve a 0:09:27.960 --> 0:09:31.199 result like this through a statute passed by Congress, assuming 0:09:31.200 --> 0:09:33.359 he's got a Republican in the White House and Republicans 0:09:33.400 --> 0:09:36.280 controlling Congress, the answer is no. Right that it's not 0:09:36.400 --> 0:09:39.800 inconceivable that the US Supreme Court would sign off on, 0:09:40.080 --> 0:09:44.959 you know, something that wouldn't be possible through majority rules. Mary, 0:09:44.960 --> 0:09:48.240 you spoke about irony before, and I'd like you to 0:09:48.360 --> 0:09:53.040 comment on the irony that in the Dabs decision, which 0:09:53.120 --> 0:09:58.439 overturned the constitutional right to abortion, the majority indicated that 0:09:58.480 --> 0:10:01.319 this would merely rich are on the issue of abortion 0:10:01.559 --> 0:10:05.560 to the people and to the democratic process, and basically 0:10:05.559 --> 0:10:08.960 they wouldn't have to deal with anymore. I mean, obviously 0:10:09.480 --> 0:10:11.840 they actually believe that that was naive, and all the 0:10:11.880 --> 0:10:15.280 more so, profess any student of history would know that 0:10:15.440 --> 0:10:20.360 neither supporters of abortion rights nor opponents of abortion have 0:10:20.480 --> 0:10:23.920 been content with letting voters decide, even if that would 0:10:23.960 --> 0:10:25.920 be the more stable thing to do. The anti abortion 0:10:25.960 --> 0:10:29.280 movements Tatmeric alludes to in his opinion, at one point 0:10:30.000 --> 0:10:33.040 has been fighting for fetal personhood, which will make abortion 0:10:33.120 --> 0:10:36.400 unconstitutional and illegal nationwide. And if they can't achieve that, 0:10:36.400 --> 0:10:38.080 they're going to get as close to it as they can. 0:10:38.480 --> 0:10:41.439 And abortion rights supporters, obviously, as Judge rights is ruling 0:10:41.800 --> 0:10:44.080 makes clearer not going to be content with gods either. 0:10:44.840 --> 0:10:47.319 I think it's even more clear that the anti abortion 0:10:47.360 --> 0:10:49.120 movement is going to rely on the federal courts again 0:10:49.120 --> 0:10:52.679 because they've been losing so much, whether it's invalid initiatives 0:10:52.760 --> 0:10:55.000 or in elections, and so if they don't have the 0:10:55.040 --> 0:10:56.719 hearts and minds of voters, they're going to need to 0:10:56.760 --> 0:10:59.360 rely on the federal courts. So this is a reminder 0:10:59.400 --> 0:11:02.640 that either the court was naive or dishonest and telling 0:11:02.720 --> 0:11:04.959 us that the federal courts should be out of the 0:11:05.000 --> 0:11:08.440 abortion business. After dogs. This is just a preliminary stage. 0:11:08.440 --> 0:11:11.280 So even after this stage, it would go back to 0:11:11.400 --> 0:11:15.920 trial before Kazmeric and Judge Rice, right exactly, and then 0:11:15.920 --> 0:11:17.959 it would kind of go back up through the courts again. 0:11:18.000 --> 0:11:19.800 But I mean, I think part of the reason everyone 0:11:19.800 --> 0:11:22.600 has pained so much attention at this stage is, as 0:11:22.800 --> 0:11:25.080 was obviously the case in both Judge Rice and Judge 0:11:25.160 --> 0:11:27.520 Kasmeric's rulings, we had a pretty good preview of what 0:11:27.559 --> 0:11:30.120 they're going to hold after the trial. I mean, I 0:11:30.120 --> 0:11:33.360 don't expect any major surprises coming after the trial, and 0:11:33.480 --> 0:11:35.520 the same thing will be true in the Supreme Court. Ways. 0:11:35.559 --> 0:11:38.160 In at these early preliminary stages, we should have a 0:11:38.160 --> 0:11:40.120 pretty good sense of where they might be going. I mean, 0:11:40.120 --> 0:11:42.160 it doesn't always work that way, but often we get 0:11:42.200 --> 0:11:46.200 pretty strong signals. Some abortion providers have said that if 0:11:46.480 --> 0:11:51.720 FIfF A press Stone is unavailable, they'd switch to missoprostill 0:11:51.880 --> 0:11:56.559 only regiment. So how is that different from FIfF A 0:11:56.640 --> 0:11:58.880 press Stone. Well, there are a couple of things to 0:11:58.920 --> 0:12:00.960 note their right. So on the hand rate that mister 0:12:01.040 --> 0:12:04.760 prostill only abortion has pretty proven it's not as effective, 0:12:04.800 --> 0:12:07.800 at least at the moment as mister Prestone and mister Prostell, 0:12:07.840 --> 0:12:10.120 which is why together, which is why it's not the 0:12:10.160 --> 0:12:13.960 standard of scare. It's also worth emphasizing even though it's 0:12:14.000 --> 0:12:17.240 safe and relatively effective, there's no guarantee that it'll be 0:12:17.280 --> 0:12:19.520 available in the long term either. Because one of Judge 0:12:19.559 --> 0:12:22.680 Casmeric's rulings centered on the Comstock Act, and as I mentioned, 0:12:23.160 --> 0:12:26.920 if you interpret the Comstock Act as broadly as Kasmeric does, 0:12:27.600 --> 0:12:29.720 it would apply to mister Prosteal too. I mean, that 0:12:29.840 --> 0:12:33.480 wasn't the issue before Judge Kasmeric in this case, but 0:12:33.600 --> 0:12:37.640 it doesn't take a lot to recognize that a subsequent 0:12:37.720 --> 0:12:40.720 challenge before Judge Kasmeric based on mister Crostol or really 0:12:40.760 --> 0:12:43.320 any drug intendat or adapted for abortion, could come out 0:12:43.360 --> 0:12:46.520 the same way. So there's no guarantee that if that's 0:12:46.520 --> 0:12:48.920 the way she sees the Comstock Act, and if other 0:12:49.040 --> 0:12:52.560 conservative ports, including the US Supreme Court degree, mister Prosteal 0:12:52.559 --> 0:12:55.480 could be in the crossairs too. So this is going 0:12:55.559 --> 0:12:59.720 forward despite the fact that we've seen in many states 0:12:59.760 --> 0:13:06.040 that voters have not supported anti abortion agendas. Yeah, absolutely, 0:13:06.080 --> 0:13:09.280 I mean, I think there's a clear and ironic conclusion 0:13:09.360 --> 0:13:12.440 that's emerging in the post DODS era, which is that 0:13:13.240 --> 0:13:16.520 essentially anti abortion groups who have spent years railing against 0:13:16.600 --> 0:13:21.800 judicial activism and judicial policymaking are relying on judicial activism 0:13:21.800 --> 0:13:25.199 and judicial policy making because when voters are asked directly 0:13:25.200 --> 0:13:28.600 about these questions, they simply don't want the sweeping abortion 0:13:28.679 --> 0:13:32.000 bands that the anti abortion movement commands. Right, even if 0:13:32.200 --> 0:13:34.880 voters may be okay with abortion restrictions, they're not prepared 0:13:34.880 --> 0:13:37.160 to go nearly as far as the anti worshion movement wants, 0:13:37.200 --> 0:13:39.400 which means the only way you can get to the 0:13:39.480 --> 0:13:42.319 kind of outcome they're looking for to rely on judges 0:13:42.400 --> 0:13:46.200 like as Merit, who you know, are not reflecting where 0:13:46.200 --> 0:13:52.880 American voters are. Would this prevent pharmaceutical companies from making 0:13:53.400 --> 0:13:57.800 the pill? Well, so I would make it unnailable, right, 0:13:57.840 --> 0:14:00.480 it doesn't feel necessarily with it would mean that it's 0:14:00.559 --> 0:14:04.959 unapproved in the United States, And so it would mean 0:14:05.040 --> 0:14:08.480 that in theory, if you're continuing to dispense it or 0:14:08.559 --> 0:14:11.920 distribute it, that you could be in legal jeopardy. But again, 0:14:12.000 --> 0:14:15.480 then how much the FBA actually enforced that issue, right, 0:14:15.520 --> 0:14:18.440 how much the SPA used its discretion to go after 0:14:18.600 --> 0:14:21.160 violators would be up to the f PA, and we 0:14:21.160 --> 0:14:23.480 would expect for the Biden administration that not to be 0:14:23.920 --> 0:14:27.640 a priority. And on the Comstock point, it would make 0:14:27.640 --> 0:14:31.720 it illegal to nail it, which would first affect manufacturers 0:14:31.720 --> 0:14:34.800 and distributors in the sense that any time they actually 0:14:35.560 --> 0:14:38.440 put it in the mail, whether through the US Postal 0:14:38.480 --> 0:14:41.680 Service or FedEx or UPS or whatever, they could be 0:14:41.760 --> 0:14:44.560 violating the federal law. Again, I think what you're likely 0:14:44.600 --> 0:14:46.120 to see if it comes to that as the Biden 0:14:46.120 --> 0:14:49.600 administration essentially signaling, you know, we're not going to use 0:14:49.760 --> 0:14:52.680 whether BOJ or FBA, We're not going to treat this 0:14:52.880 --> 0:14:54.640 as a priority. We're going to kind of look the 0:14:54.680 --> 0:14:58.320 other way. But whether you know, you see drug manufacturers 0:14:58.320 --> 0:15:03.200 and doctors feeling comfortable enough to continue making mitra crestone 0:15:03.200 --> 0:15:07.120 available on the strength of that kind of guarantee, I 0:15:07.120 --> 0:15:10.080 think it's an open question. Yeah, I was just wondering if, 0:15:10.600 --> 0:15:14.080 for example, worst comes to words that there could be 0:15:14.120 --> 0:15:17.280 an underground network and people could get the drug from 0:15:17.320 --> 0:15:20.200 outside the country from Canada. Yeah, I mean we would 0:15:20.200 --> 0:15:23.760 expect to see that. I mean, there's definitely going to 0:15:23.840 --> 0:15:27.200 be some of that. I think because we've already seen, 0:15:27.240 --> 0:15:30.280 for example, women on the Web and aid Access groups 0:15:30.320 --> 0:15:35.000 like that that provide medication access from Europe, and so 0:15:35.040 --> 0:15:38.960 far that would be under the FDA's personal Importation policy. 0:15:39.000 --> 0:15:41.600 And while in theory that's violating that policy, the FDA 0:15:41.640 --> 0:15:45.680 has taken a kind of again non aggressive approach to 0:15:46.400 --> 0:15:49.720 dealing with that. And there's no real realistical way to 0:15:49.800 --> 0:15:53.520 prosecute groups like aid Access simply because they're not going 0:15:53.520 --> 0:15:57.280 to be extradited from countries that approve of abortion as 0:15:57.360 --> 0:16:01.200 you know, protected rights. As there have been a situation before. 0:16:01.240 --> 0:16:06.320 I mean this sort of highlights that one judge in Amarillo, 0:16:06.320 --> 0:16:09.960 Texas can make a ruling that affects the whole country, 0:16:10.200 --> 0:16:13.520 and then another judge now in Washington can make a 0:16:13.600 --> 0:16:17.040 ruling that affects maybe half the country. Has this happened before, 0:16:17.200 --> 0:16:22.080 dueling injunctions like this, I mean, they've definitely seen circuit splits. 0:16:22.120 --> 0:16:25.080 I think what the newer wrinkle here is the spread 0:16:25.120 --> 0:16:30.080 of these nationwide injunctions, and I think the polarization of 0:16:30.120 --> 0:16:32.360 the courts. And it's not a coincidence that we have 0:16:32.880 --> 0:16:36.960 an Obama nominee and a Trump nominee here. So the 0:16:37.040 --> 0:16:40.440 spread of nationwide injunctions, together with the kind of widening 0:16:40.480 --> 0:16:44.200 gap between the kinds of ruling judges or ordering has 0:16:44.240 --> 0:16:45.600 made this kind of it. I mean, the fact that 0:16:45.640 --> 0:16:47.920 you have these two rulings coming out at the same 0:16:47.960 --> 0:16:52.160 time on the same day, giving the FDA directly opposing orders, 0:16:52.360 --> 0:16:54.680 as far as I know, was unprecedented, even if we've 0:16:54.720 --> 0:16:58.440 seen you know, splits and divides between supports and circuits 0:16:58.480 --> 0:17:02.200 in the past. The ruling in Washington, I mean, there's 0:17:02.240 --> 0:17:04.919 no group that will appeal that right because it was 0:17:05.000 --> 0:17:09.040 the FDA and the and the Democratic States. Yeah, I 0:17:09.040 --> 0:17:11.359 mean they may see. You know, the only wrinkle there, 0:17:11.680 --> 0:17:17.240 Judge Ice didn't go as far as the Liberal States wanted. 0:17:17.880 --> 0:17:22.639 They had argued that the FDA FA rules actually preemptied 0:17:23.000 --> 0:17:27.399 contradictory state prohibitions on abortionition meditation. So in theory they 0:17:27.480 --> 0:17:30.680 might appeal to the Ninth Circuit Court of Appeals, which 0:17:30.800 --> 0:17:35.159 is quite progressive, and seek more. But yeah, it's not 0:17:35.240 --> 0:17:37.800 as clear who's going to do what in that situation, 0:17:37.960 --> 0:17:41.000 because you know, the FDA is less supposed to what's 0:17:41.040 --> 0:17:44.000 going on thus far in that case obviously than it 0:17:44.000 --> 0:17:46.240 would be in their TuS Meer's case. Thanks, So much 0:17:46.280 --> 0:17:49.800 for letting your expertise on this subject. That's Professor Mary 0:17:49.880 --> 0:17:55.520 Ziegler of UC Davis Law School, California. Federal jury has 0:17:55.560 --> 0:17:59.960 awarded three point two million dollars to former Tesla contractor 0:18:00.080 --> 0:18:03.840 O and Diaz in a long running racial discrimination case. 0:18:04.320 --> 0:18:08.240 But that's ninety eight percent less than the staggering one 0:18:08.280 --> 0:18:12.000 hundred thirty seven million dollars a different jury awarded to 0:18:12.119 --> 0:18:15.040 Daz two years ago. That was one of the highest 0:18:15.160 --> 0:18:19.120 verdicts ever for someone suing over discrimination in the US. 0:18:19.160 --> 0:18:21.960 This sets the stage for a post trial battle over 0:18:22.000 --> 0:18:25.160 the award. Joining me is Anthony on CD, co chair 0:18:25.200 --> 0:18:29.520 of Proscouer Rose's Labor and Employment law department. Tony start 0:18:29.560 --> 0:18:33.440 by telling us about the original trial and original verdict. 0:18:34.119 --> 0:18:38.000 This case ended up going to trial and verdict in 0:18:38.080 --> 0:18:42.000 October of twenty twenty one, and that's when the original 0:18:42.160 --> 0:18:45.280 jury verdict came out, and it was in the rather 0:18:45.440 --> 0:18:48.920 eye popping amount of one hundred and thirty seven million 0:18:48.920 --> 0:18:54.040 dollars composed of six point nine million dollars in emotional 0:18:54.040 --> 0:18:57.359 distress damages and one hundred and thirty million dollars in 0:18:57.480 --> 0:19:01.399 punitive damages. What mister p as alleged and was able 0:19:01.400 --> 0:19:04.840 to prove at trial, was that he was subjected to 0:19:05.720 --> 0:19:08.520 racial harassment in the workplace. He was a very short 0:19:08.600 --> 0:19:10.639 term employee, worked there for less than a year. He 0:19:10.760 --> 0:19:13.640 worked as an elevator operator at Tesla in its Fremont, 0:19:14.080 --> 0:19:17.360 California plant. I'm not sure what an elevator operator even 0:19:17.440 --> 0:19:19.600 is in the twenty first century, especially at a company 0:19:19.640 --> 0:19:21.800 such as Tesla, but apparently that was the job he 0:19:21.840 --> 0:19:25.639 had there, and the jury obviously was very sympathetic to 0:19:25.760 --> 0:19:29.640 his situation and determined that he did suffer emotional distress 0:19:29.840 --> 0:19:34.520 and that punitive damages were in order. Any idea where 0:19:34.520 --> 0:19:39.120 this six point nine million dollars in emotional distress comes from? 0:19:39.600 --> 0:19:42.480 Where they came up with that number? Sure? So the 0:19:42.560 --> 0:19:45.600 answer is that oftentimes what a jury will do, and 0:19:45.640 --> 0:19:48.000 I suspect that's what happened in this case. If they 0:19:48.040 --> 0:19:52.440 are upset enough about the circumstances that occurred in the workplace, 0:19:52.600 --> 0:19:55.320 and for whatever reason they believe that this employee has 0:19:55.359 --> 0:19:59.760 been wrongly treated or obviously in this case, significantly wrongly treated, 0:20:00.080 --> 0:20:04.919 what will creep into the emotional distress damages award is 0:20:05.040 --> 0:20:08.520 a punitive element, meaning that the jury was only asked 0:20:08.520 --> 0:20:10.359 in that phase of the trial because there are different 0:20:10.359 --> 0:20:13.840 phases of the trial compensatory damages versus punitive damages, and 0:20:13.920 --> 0:20:17.439 the compensatory damages phase of the trial. The jury was 0:20:17.680 --> 0:20:22.200 apparently so upset with what had occurred that although they 0:20:22.240 --> 0:20:25.840 were only supposed to be focusing on making mister Diaz 0:20:26.000 --> 0:20:30.080 whole in the form of emotional distress damages, I believe 0:20:30.080 --> 0:20:33.240 what happened is that at that stage of the proceedings, 0:20:33.280 --> 0:20:36.439 when they were only supposed to be focusing on making 0:20:36.480 --> 0:20:41.159 mister Diaz whole in terms of awarding him damages for 0:20:41.200 --> 0:20:46.440 emotional distress, I suspect what crept in was an element 0:20:46.480 --> 0:20:52.320 of punitive reprisal essentially by the jury against Tesla. That's 0:20:52.359 --> 0:20:55.360 not supposed to happen, but it's not unusual for that 0:20:55.440 --> 0:20:57.679 to happen, and I think that's what happened with the 0:20:57.720 --> 0:21:00.680 six point nine million dollar award that acurred with respect 0:21:00.720 --> 0:21:04.240 emotional distress damages. In California, where this jury verdict occurred, 0:21:04.280 --> 0:21:07.520 there aren't really any guide posts for a jury to 0:21:07.640 --> 0:21:11.960 determine what are the appropriate amount of emotional distress damages. Indeed, 0:21:12.240 --> 0:21:16.360 oftentimes it's what the plaintiffs lawyer asks for the plaintiff 0:21:16.400 --> 0:21:19.160 lawyer oftentimes will put a number out there and tell 0:21:19.200 --> 0:21:21.600 the jury that he or she thinks that's an appropriate 0:21:21.640 --> 0:21:26.000 amount of emotional distress damages. But the jury instructions in 0:21:26.040 --> 0:21:30.679 California are woefully deficient in telling juries what they should 0:21:30.760 --> 0:21:34.480 evaluate and how they should determine the amount of emotional 0:21:34.480 --> 0:21:37.680 distress damages. This is becoming a bigger and bigger problem 0:21:38.400 --> 0:21:41.199 where the employer basically is at the mercy of the 0:21:41.200 --> 0:21:43.600 plaintiff lawyer in terms of what number he or she 0:21:44.160 --> 0:21:46.840 throws out to the jury or whatever the jury may 0:21:46.840 --> 0:21:49.240 come up with, and there's no real standardized way of 0:21:49.280 --> 0:21:52.480 figuring that out. Another problem with the jury instructions in California, 0:21:52.520 --> 0:21:55.600 by the way, are they asked the jury to assess 0:21:55.720 --> 0:22:00.320 and award past emotional distress damages up through and including 0:22:00.400 --> 0:22:04.280 the time of the trial, and then future emotional distress damages. 0:22:04.480 --> 0:22:07.240 I think that second element, at the very least future 0:22:07.320 --> 0:22:10.840 emotional distress damages is nothing but purely asking the jury 0:22:10.880 --> 0:22:14.280 to speculate about something. And so what often happens is 0:22:14.280 --> 0:22:16.960 the jury comes up with a very large number and 0:22:16.960 --> 0:22:19.919 they give half for the past emotional distress damages, and 0:22:19.960 --> 0:22:22.840 they give half for the future emotional distress damages. And 0:22:23.080 --> 0:22:25.720 all of this is just funny money, made up numbers 0:22:25.760 --> 0:22:29.520 that aren't really targeted or in any way correlated to 0:22:29.560 --> 0:22:33.080 anything in reality. So the trial judge gave the plaintiff 0:22:33.119 --> 0:22:36.320 here a tough choice. Tell us about it. Sure. So 0:22:36.520 --> 0:22:39.280 what happened after the verdict came out in October of 0:22:39.320 --> 0:22:43.320 twenty twenty one, TESLA moved the Proud Court judge to 0:22:43.480 --> 0:22:47.200 reduce the one hundred and thirty seven million dollar verdict, 0:22:47.200 --> 0:22:52.040 which was completely in anticipated that clearly the judge would 0:22:52.160 --> 0:22:55.600 seek to do something with that verdict because we've already 0:22:55.600 --> 0:22:59.280 talked about how large the compenstory damages verdict was, that is, 0:22:59.320 --> 0:23:01.600 the emotional dis dress damages, But on top of that, 0:23:01.640 --> 0:23:03.879 there was a one hundred and thirty million dollars punitive 0:23:03.960 --> 0:23:07.840 damages award. And the problem with that part of the 0:23:07.960 --> 0:23:10.520 verdict from October of twenty twenty one is that the 0:23:10.600 --> 0:23:16.439 punitive damages were approximately nineteen times the amount of the 0:23:16.480 --> 0:23:20.879 compensatory damages. And once that happens, then the verdict is 0:23:20.920 --> 0:23:25.760